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Per Curiam:.
Defendant was convicted on March 21, 1969 of kidnapping, MCLA 750.349; MSA 28.581. He was also convicted after a separate trial of rape, MCLA 750.520; MSA 28.788 and felonious assault, MCLA 750.82; MSA 28.277, which convictions were subsequently reversed. People v White, 41 Mich App 370; 200 NW2d 326 (1972), aff'd, 390 Mich 245; 212 NW2d 222 (1973). The kidnapping conviction, for which defendant was sentenced to a term of from 5 to 15 years in prison, was not appealed.
Defendant was paroled from prison on December 14, 1973. He was taken into custody for violating his parole on March 11, 1974, following a complaint by his wife that he assaulted her with a knife. On March 19, 1974, defendant pled guilty to a charge of aggravated assault, MCLA 750.81a; MSA 28.276(1), and was sentenced to 90 days in jail. A hearing was held before the Michigan Parole Board on April 8, 1974. It was determined that defendant was in violation of his parole, and his parole was revoked. From this decision of the Michigan Parole Board, defendant filed a claim of appeal as of right.
Due to the procedurally improper method used by the defendant to prosecute his appeal, we are unable to decide this case on its merits. Jurisdiction for appeals as of right to this Court is conferred by statute, MCLA 600.308; MSA 27A.308. The statute inclhdes no provision for appeals as of right from the Michigan Parole Board. Thus, this Court is without statutory jurisdiction to consider this appeal. The procedurally preferable method for seeking review by this Court of a decision of the Michigan Parole Board is to file a complaint for a writ of mandamus under the provisions of GCR 1963, 816.2. See for example, Callison v Department of Corrections, 56 Mich App 260; 223 NW2d 738 (1974).
This Court being without jurisdiction, the appeal is dismissed without prejudice to proceed properly. | [
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Per Curiam.
Defendant was convicted by a jury of carrying a weapon in a vehicle without a license to do so, MCLA 750.227; MSA 28.424. Defendant was sentenced to a term of from 3 to 5 years in prison and appeals.
Defendant raises four issues:
I. That there was insufficient evidence from which reasonable men could find defendant guilty beyond a reasonable doubt;
II. That defendant’s pretrial motion to suppress evidence should have been granted;
III. That the trial court abused its discretion by suppressing the use of some but not all of defendant’s prior criminal record;
IV. That publicity given handguns during the course of the trial possibly influenced the jury’s verdict.
I
It is initially unclear whether defendant is arguing sufficiency or weight of the evidence in this case. An objection going to the weight of the evidence can only be raised by a motion for new trial. It is when that motion is denied, as in the instant case, that such denial is reviewable for an abuse of discretion. People v Mattison, 26 Mich App 453; 182 NW2d 604 (1970). An abuse of discretion is found only where the verdict is manifestly against the clear weight of the evidence. Murchie v Standard Oil Co, 355 Mich 550; 94 NW2d 799 (1959), Termaat v Bohn Aluminum & Brass Co, 362 Mich 598; 107 NW2d 783 (1961). We find no such abuse here.
The operative language of the applicable statute, MCLA 750.227; MSA 28.424, provides that " * * * any person who shall carry a pistol * * * in any vehicle operated or occupied by him * * * without a license to so carry said pistol * * * shall be guilty of a felony”. Although there is no mens rea requirement explicit in the statute, such a requirement is implicit and there must be evidence that defendant knowingly participated in the commission of the crime. People v Jerome I Smith, 21 Mich App 717; 176 NW2d 430 (1970).
In the present case, there was testimony at trial that defendant, in the morning hours of September 15, 1973, was driving an automobile carrying one passenger. He was pursued by police at speeds of up to 70 m.p.h. after police saw defendant head south on Joseph Campau at a high rate of speed and cross the centerline. When the car defendant was driving stalled, the two pursuing officers approached the vehicle, one on either side.
The officer approaching defendant’s car from the driver’s side testified that defendant was leaning forward with his arms behind him, fumbling with something. When defendant exited the automobile, the officer saw a gun with the chamber open tucked partially into the seat where defendant had been fumbling. There was one round in the gun and five live bullets lying next to it.
Défense counsel was unsuccessful in attempting to show that the officer was not in a position to have seen defendant’s hands. The inconsistency between the officer’s testimony at trial and at the preliminary examination was only on the narrow point of whether, at the time the officer approached the vehicle, defendant’s hands were be hind him and he was fumbling with something. Furthermore, the gun was positioned so that it jutted out from the seat where defendant was sitting. The inference that defendant "knowingly carried” the weapon found in the car was drawn from facts established by credible evidence in the record, rather than from a pyramiding of inferences. See People v Cunningham, 20 Mich App 699; 174 NW2d 599 (1969).
II
Defendant contends that the failure on the part of the Hamtramck Police to dust the weapon for fingerprints was tantamount to a suppression or withholding of evidence, since exculpatory evidence that might have been developed through that testing procedure was lost. In People v Merriweather, 50 Mich App 751, 752; 213 NW2d 756 (1973) lv den, 391 Mich 809 (1974), this Court stated:
"Defendant claims he was denied due process of law because the police failed to dust the weapon for fingerprints.
"The cases cited by the defendant to substantiate his position deal with prosecutors withholding evidence to the detriment of the defendant. In this case, there was no evidence suppressed or withheld and defendant’s rights were not violated.”
The crucial distinction is between failing to disclose evidence that has been developed and failing to develop evidence in the first instance. When the police fail to run any tests, the lack of evidence will tend to injure their case more than defendant’s since the prosecution has the burden of proving guilt beyond a reasonable doubt. Whether or not to run fingerprint tests is a legitimate police investigative decision. Defendant’s rights were not violated.
Ill
When defendant requested before trial that the court suppress the use of defendant’s prior criminal record for purposes of impeachment, the trial judge excluded the use of some but not all of defendant’s prior convictions. Defendant did not take the stand and now asserts that the trial court’s partial denial of his motion forced him to forego his right to testify in his own behalf.
Although the trial judge’s decision was advisory, what he would probably do unless something came "up during the course of the trial that could possibly change [his] mind”, he nevertheless stated how he would most likely handle the question if it arose at trial. It is error for a trial judge to fail to recognize that he has the discretion to exclude reference to a defendant’s prior conviction record and, therefore, to fail or to refuse to exercise it. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). This does not require that a trial judge exclude reference to a defendant’s prior record; it only requires that he exercise his discretion. People v Moore, 391 Mich 426; 216 NW2d 770 (1974).
Here, the trial court recognized the matter as one of discretion. The judge carefully selected from defendant’s numerous convictions those which he believed to be more prejudicial than probative and those which he believed to be more probative than prejudicial. Many judges would not have excluded as many convictions, some would have excluded more. That is the essence of discretion. There was no error.
IV
Defendant finally argues that a televised editorial, shown during a holiday adjournment, denouncing handguns and calling for strict law enforcement, possibly influenced the jury’s verdict in this case. To the extent that defense counsel complains about community feeling before trial, such complaints have been waived. Although given the opportunity, no juror was challenged for cause. Moreover, any attempt would have been unsuccessful, given the jury’s responses on voir dire examination.
As for the televised editorial, failure to raise the question at trial, albeit excusable since counsel did not know about the editorial at the time of trial, has resulted in the lapse of an opportunity to establish, on the record, what effect, if any, the editorial had. Indeed, whether any member of the jury was even aware of the editorial is mere speculation. The burden of showing undue influence on a jury through the news media lies with the challenger. People v Moore, 51 Mich App 48; 214 NW2d 548 (1974). The editorial addressed gun laws in general and did not make specific reference to defendant’s case. We must presume, in the absence of contrary evidence, that this jury decided this case as instructed, on the basis, of the evidence presented.
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R. B. Burns, P. J.
Defendant, 16 years old, was charged with armed robbery, MCLA 750.529; MSA 28.797, and breaking and entering an occupied dwelling, MCLA 750.110; MSA 28.305. He pled guilty to the reduced charges of felonious assault, MCLA 750.82; MSA 28.277 and attempted breaking and entering, MCLA 750.92; MSA 28:287.
Defendant raises five grounds in his appeal. Only one ground merits discussion. The other grounds are deemed waived, abandoned or are not substantiated by the record.
Is a juvenile who is convicted of a crime entitled to credit for time spent in juvenile detention facilities?
The defendant was given credit for 43 days spent in the Wayne County jail. He was not given credit for any time spent in the juvenile detention facility.
MCLA 769.11b; MSA 28.1083(2), reads as follows:
"Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.”
We have no precedent for this particular situation in Michigan. However, in People v Gravlin, 52 Mich App 467; 217 NW2d 404 (1974), the Court stated on page 469:
"This statutory provision is remedial and should be liberally construed * * * .
"A 'jail’ means a place of confinement and a mental hospital is such a place.”
We think a juvenile detention facility is such a place and the defendant should receive credit for time spent in such an institution.
Defendant has failed to submit any record showing that he spent any time in a juvenile detention center. However, from the facts of the case, it may be conjectured that he might have spent time at the facility.
These cases are remanded to the trial court for a determination and computation of time spent by the defendant in juvenile detention in connection with these cases.
If the trial court determines that the defendant was confined in the juvenile detention facility as a result of these cases, the trial judge shall credit such time to the defendant’s benefit. | [
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Allen, J.
The defendant was convicted in a non-jury trial of delivering marijuana to a person under 18 years of age and more than five years defendant’s junior, contrary to MCLA 335.346(1); MSA 18.1070(46X1) and MCLA 335.341(l)(c); MSA 18.1070(41)(l)(c). On September 17, 1973, defendant received a sentence of 2-1/2 to 8 years in prison, and appeals.
Defendant raises three issues on appeal:
I That the tests used by the state police crime laboratory were so deficient as to be insufficient and incompetent to serve as a basis for identification of the controlled substance;
II That the trial court erred in admitting the arresting officer’s testimony regarding defendant’s age and in admitting a public record of defendant’s birth;
III That the factfinder failed to confine its deliberations as to the date of the offense to May 25, 1973.
I
Hugh M. Fish, employed at the State Police Crime Laboratory testified that he used the "Duquenois” reagent test and a microscopic test to identify the substance in question. He then said that he determined this to be marijuana. Defense counsel specifically said that he had no objection to Fish’s qualifications as an expert witness, and failed to voice an objection to the use of the various tests. On appeal, defendant asserts that these tests are unreliable. In light of People v Alexander, 56 Mich App 400; 223 NW2d 750 (1974), we are constrained to hold the contrary. Generally, issues not raised below are not considered for the first time on appeal. See People v White, 53 Mich App 51, 57; 218 NW2d 403 (1974), and cases cited therein. Defense counsel moved to strike Fish’s testimony on the theory that defendant had been denied due process of law because Fish was an expert employed by the state whereas defendant lacked the means and ability to secure a "counter expert” to confront Fish’s findings. This issue was not raised on appeal, and we find no clear injustice presented that would require us to find that the tests used to identify the controlled substance are unreliable.
II
The prosecutor has agreed that the police officer's testimony and report regarding defendant’s date of birth were hearsay and should have been excluded by the trial judge. See Sterling v Detroit, 134 Mich 22, 25; 95 NW 986 (1903). However, the prosecutor argues that because a birth certificate from the county clerk’s office was properly admitted, the error in admitting the police officer’s testimony was harmless beyond a reasonable doubt. People v Harrison, 49 Mich App 546, 551; 212 NW2d 278 (1973). Defendant, on the other hand, argues that the certificate from the county clerk’s office was improperly admitted on the grounds that no proper foundation had been established, and that the public record was not authenticated. Finally, even if our Court finds the record to have been authenticated, defendant argues that the record was irrelevant to defendant’s case on the grounds that the people failed to establish that the certificate at issue proves the date of birth of defendant rather than the date of birth of some other Steven D. Smith.
At trial, the prosecutor offered "the official public records of the county clerk’s office regarding the certificate of live birth of Steven Darrell Smith”. Although the prosecutor said that he would ask "Miss Pish whether these are the records”, he stated "I don’t think it’s necessary to do”. Defense counsel objected to the admission of this record on the grounds that there was no proof to show that this was the record of defendant instead of some other Steven Darrell Smith, stating "I object as irrelevant and immaterial”. The trial court overruled the objection, and read the record. The judge stated that it "evidences the birth of one Steven Darrell Smith on April 9, 1951”. The father of the child was listed as Fred J. Smith. The mother’s maiden name was shown as LaVerna Parcel! Having stated that portion of the record in the transcript, the judge returned the volume of birth certificates to the county clerk.
Unlike the situation in Breitmayer v United States, 249 F 929, 933 (CA 6, 1918), no testimony was specifically presented to indicate that the Steven Darrell Smith in the birth certificate was indeed defendant. Also, the people failed to show that the Fred J. Smith listed in the certificate was defendant’s father. While defendant’s sister testified that her mother’s name was LaVina, the people failed to. show that she was in fact the person listed as the mother in the birth certificate. Although such records are prima facie evidence of the name, sex, color, and date and place of birth of the child listed therein, MCLA 326.16(6); MSA 14.236(6), the people failed to show the relevance of the birth certificate at issue. Generally, "the materiality and relevancy of evidence” is within the trial court’s discretion, and our Court will not reverse its determination "unless there [has been] an abuse”. People v Moore, 51 Mich App 48, 52; 214 NW2d 548 (1974). If there was in fact an abuse of discretion and error was committed, it was harmless beyond a reasonable doubt and did not contribute to defendant’s conviction. People v Robinson, 386 Mich 551, 562-563; 194 NW2d 709 (1972).
The official records showed that a Steven Darrell Smith was 22 years old as of April 9, 1973. Michael Gary, the prosecutor’s main witness against defendant, testified that defendant had told him that he was 22 years old. This statement clearly falls within the admissions exception to the hearsay rule. McCormick, Evidence, (2d Ed), §262, p 628. Since the trial court had before it evidence of defendant’s age, no miscarriage of justice resulted when the record of birth certificates was admitted at trial. MCLA 769.26; MSA 28.1096 and GCR 1963, 529.1. The birth record was merely cumulative and if the trial court abused its discretion in admitting the record into evidence, we find no miscarriage of justice. People v Hall, 56 Mich App 10, 19; 223 NW2d 340, 345 (1974).
Ill
Defendant’s final argument is a three-pronged attack upon the trial court’s failure to confine its deliberations as to the date of the offense to May 25, 1973, the specific date set forth in the complaint, warrant, return to circuit court, and in the videlicet of the information, the body of which recited that the offense occurred "on or about the date of the offense set forth above”. Defendant argues that Michael Gary was the only witness who connected defendant with the delivery of marijuana, and that Gary said that the event took place May 25. Relying upon People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969), and United States v Henderson, 434 F2d 84 (CA 6, 1970), defendant argues that the prosecutor was bound to limit his proofs to that day, and that the trial court’s decision to allow the prosecutor to prove that the delivery took place some time previous to that date violated defendant’s presumption of in nocence and allowed the people to shift the burden of proof to defendant. Second, relying upon Commonwealth v Boyer, 216 Pa Super 286; 264 A2d 173 (1970), and the cases cited therein, defendant argues that his assertion of an alibi defense makes "time of the essence”, and that any variance between the proofs and the date alleged in the information is fatal to defendant’s conviction. Third, defendant argues that even if a variance is allowed, the prosecutor failed to allege and prove an alternate date, thus depriving defendant of his right to prepare an adequate defense. It is alleged that the people failed to offer proof of another specific date, and that this vague charge against defendant violated his right to due process of law and the right to be informed of the nature of the accusation against him. US Const, Am XIV, Const 1963, Art 1, §§ 17, 20. A recitation of the relevant facts is necessary to enable one to understand and comprehend this issue.
At the preliminary examination held July 9, 1973, defense counsel initially raised objection to the warrant which had been issued upon a detective’s "information and belief’. Counsel stated that there was no allegation as to time and place. After the detective was questioned, defense counsel argued that his client was not prepared for the examination on the grounds that he was not apprised of a specific date, time and place of the offense. The trial court then ordered the people to prepare a new complaint and warrant. After a short recess, a new complaint was prepared and defense counsel offered no objection thereto.
At the examination, Michael Gary, the people’s main witness against defendant, and the purchaser of the controlled substance, testified that he obtained the marijuana from defendant on May 25, 1973. In response to the prosecutor’s question as to whether the witness had "ever” smoked marijuana with defendant or had "ever” received marijuana from defendant, defense counsel objected on the grounds that defendant had been charged with a specific act on a specific date, May 25, and the trial court told the prosecutor to limit his questions to the event of May 25. Although the prosecutor couched his question in terms of "on or about May 25”, Gary continued to testify that the event took place May 25. However, upon cross-examination by defense counsel, he was unable to remember what day of the week was the 25th, and in fact stated the event might have taken place on the 24th or the 26th. He said that it took place "around the 25th”. However, Gary subsequently testified that the transaction took place on May 25. As we will see later, Gary in turn delivered some of this controlled substance to another party, and said that although he did not know what day of the week that took place, it occurred in the last week of May. Upon redirect examination, the prosecutor, in an attempt to "pinpoint” the date of the sale, elicited from Gary the statement that the event took place May 25, 1973. Gary also replied "yeah” to the prosecutor’s leading question that this took place "toward the end of the school year, is that right?”
Jeff Miller, the person to whom Michael Gary delivered a portion of the controlled substance, replied affirmatively to the prosecutor’s statement that "on or about May 25, 1973” he received some controlled substance from Michael Gary. He said that he turned this over to his school principal about May 25, and upon cross-examination testified that he gave the substance to his school principal on Friday after having received it from Gary on Wednesday. Wednesday was May 23, and Friday was May 25. The school principal was unable to give an exact date as to when he received the controlled substance, and the detective replied affirmatively to the prosecutor’s question as to whether "on or about May 25” he was contacted by the principal regarding the controlled substance. The district court judge bound defendant over for trial, stating that he found "on or about May 25, 1973”, defendant "had occasion to deliver” the controlled substance to Michael Gary.
July 16, 1973, defendant was arraigned in circuit court upon the information, and waived reading of the information and the statutes under which he was charged. The return to circuit court stated that the day of the offense was May 25, 1973. We have seen that the videlicet listed the date of offense as May 25, 1973, and that the body of the information said "on or about the date of the offense set forth above”.
August 3, 1973, defendant filed a notice of alibi defense, in which it was stated that "during the week of May 25, 1973” he participated in the operation of a yard sale at his mother’s home. During the pretrial conference summary, which was held July 23, 1973, it was recited therein that defense counsel was going to file a claim of alibi for the date of May 25, 1973.
Trial was held August 31, 1973. In his opening statement, the prosecutor stated that the people would show "on a date in the latter part of May” defendant delivered some controlled substance to Michael Gary. Defense counsel argued that on May 25, defendant was at his mother’s home conducting a yard sale. He argued that defendant was involved in the sale on May 24 and May 25, and that defendant did not see Michael Gary on May 25. Defense counsel argued that his evidence would show that defendant was present at his mother’s home from 2 p.m. to 5 p.m. on May 25, 1973.
Michael Gary then was called to the stand, and was asked whether, sometime before the end of the school year, he had ridden in defendant’s van and had purchased some marijuana. Defense counsel objected, stating that the date of the offense was charged to be May 25, 1973, and argued that the people should be bound to that date. Defense counsel argued that defendant was surprised at the prosecutor’s apparent change of dates, and asserted that defendant was not prepared to defend against such a claim. The trial court overruled defense counsel’s objection, specifically referring to the "on or about” language in the information.
Michael Gary testified that the transaction at issue occurred May 25, 1973. He distinctly said that rather than "some time in May,” the offense occurred specifically May 25. Gary said that he had the marijuana "a matter of a few days,” before he sold some of it to Miller, and said that he sold the substance to Miller "around the second day I went back.”
Miller could not remember the exact date of his transaction with Gary. He said it was some time in May, and that he placed his purchase in his locker and kept it there for a couple of days. He then put it inside his drum case, where it was subsequently discovered. On the day of its discovery, Miller turned it in to the school principal. Miller said he had it in his locker for two days before he transferred it to the drum case.
The school principal testified that Miller delivered the marijuana to him, but failed to state what day this occurred. However, Charles Sharpe, the police officer, testified that he went to the school on May 25, and received the marijuana from the school principal on that day. The officer testified on rebuttal and said that he definitely had picked up the substance on the 25th.
It was thus obvious that Gary was mistaken as to the exact day of the transaction, and the prosecutor conceded as much when he began his closing argument. However, he argued that the offense was charged "on or about” May 25, and argued that Gary had been mistaken as to the date of the transaction. If Gary had the marijuana for two days before he sold it to Miller, and if Miller had it for two days in his locker before it was discovered on May 25, the date of the offense would be May 21, 1973.
Defendant’s defense was that of alibi. A mailman testified that on Thursday, May 24, and Friday, May 25, he saw defendant at the yard sale. He also said that he saw defendant there on Saturday, May 26. He said that he saw defendant on Thursday and Friday between 12 and 1 o’clock, as well as about 10 minutes thereafter. Also, on Friday, he returned to the premises about 5 p.m. with a companion to purchase some of the items at the yard sale. He said he was there from 5 p.m. until shortly before 6 p.m. on Friday. However, he said he was not present at defendant’s yard sale between the hours of 1:30 p.m. and 5 p.m. on Friday.
Gertrude Flowers, a neighbor, testified that she saw defendant every day during the course of the yard sale, particularly during the daylight hours. Specifically, she said that she saw defendant there until 5 or 6 p.m. every day of the yard sale. Elgie Flowers, her husband, said that, as did his wife, he saw defendant at the yard sale whenever he looked out of his window. He said he saw defendant between 3 and 4 p.m. on more than one occasion, and said it might have been four days of that week. However, he later stated that he did not know exactly what time he saw defendant.
Defendant’s sister, Judy Blount, testified she saw defendant at the yard sale on May 23, Wednesday. She was there from 10 a.m. until 3 p.m. and saw defendant there until she left. Except for a short time between 1 and 1:30 in which she went shopping, she saw defendant on May 23, 1973. Defendant’s other sister, Brenda Burger, said that she was at the yard sale on Thursday, May 24, between 3:20 p.m. and 4 p.m. She said that she was there to pick up her mother to go grocery shopping. She also said that she saw defendant either Friday or Saturday afternoon some time between 12 and 1 p.m.
Robert Aube, an owner of a gas station, testified that he went to the yard sale looking for some tools and other such items. He said that he was at the sale on Friday, the 25th, from a little before 3 p.m. until some time between 4:30 and 5 p.m. Richard Aube testified that he saw defendant at the yard sale first as Aube drove by the house and again when he stopped for a short visit about 4 or 5 p.m.
Michael Gary testified that classes ended at 2:16 p.m. The principal of the school corroborated this fact. Gary testified that the sale took place in the afternoon after he went downtown and met defendant in a park.
The foregoing recitation of facts precludes defendant’s reliance on People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969), and United States v Henderson, 434 F2d 84 (CA 6 1970). In both of those cases, there was nothing in the record to support a finding that the offense had occurred other than the day charged in the information. Thus, although the information utilized the "on or about” language, the court said that the fact finder should have confined its deliberations to the exact day listed in the information. Brocato, said that allowing the jury to find that the offense had occurred on some other date was "particularly prejudicial” because defendant and three of his witnesses were able to support defendant’s alibi and account for his activities on the night in question. 17 Mich App 277, 288; 169 NW2d 483, 488. Henderson, relied upon Brocato, and' said because there was no variance in the proof, the trial judge erred in instructing the jury on variance. An instruction allowing the jury to find defendant guilty on another day was held to have foreclosed defendant’s defense in light of the absence of proof of variance. 434 F2d 84, 88-89.
In the case now before us there was evidence, or reasonable inference capable of being drawn therefrom, to indicate that the offense took place and that it occurred on a date other than May 25, 1973. The police officer was certain that he received the controlled substance on May 25. There is nothing in the record to contradict Miller’s statement that he had the substance in his locker for two days before it was discovered, nor does anything contradict Gary’s statement that he had the substance at least two days before he sold it to. Miller. Thus, there was proof of some other day, and we find no merit to defendant’s initial contention on issue three.
As noted earlier, defendant relies upon Commonwealth v Boyer, 216 Pa Super 286; 264 A2d 173, 175-176 (1970), for support of the second claim in issue three, viz. that the defense of alibi makes time of the essence, and that any variance between the date in the information and the date presented in the evidence is fatal to one’s conviction. Boyer held that a one-day variance where defendant’s alibi was specifically limited to the date charged in the information was reversible error, and the court said:
"To charge him [defendant] with knowledge that the Commonwealth meant the night of December 27, would be to charge him with a guilty knowledge contrary to the presumption of innocence with which the law clothes him.” 216 Pa Super 286, 289; 264 A2d 173, 175.
Some notice-of-alibi statutes require the prosecutor to specify the time and place of the offense. Anno: Validity and Construction of Statute Requiring Defendant in Criminal Case to Disclose Matter as to Alibi, 45 ALR3d 958, § 30, p 990. See Pearman v State, 233 Ind 111; 117 NE2d 362, 365-366 (1954), in which reversible error was found where the prosecutor violated the provisions of an Indiana statute that required defendant to be apprised as to the exact date and place of the offense.
Michigan’s notice-of-alibi provision lacks the above requirement. MCLA 768.20; MSA 28.1043. The recent amendment to the notice-of-alibi statute, 1974 PA 63, in fact only requires the prosecutor to advise defendant as to the names of the rebuttal witnesses. The prosecutor is not required to give notice of the specific time or place upon which he is relying.
It is clear that a Michigan defendant has the burden to require the prosecutor to specify a certain day or time of the offense. MCLA 767.45(2); MSA 28.985(2) states that an information is to specify the time of the offense "as near as may be”, but a variance as to the time of the offense will not result in reversible error "unless time is of the essence * * * ”. MCLA 767.51; MSA 28.991 states:
"Except insofar as time is an element of the offense charged, any allegation of the time of the commission of the offense, whether stated absolutely or under a videlicet, shall be sufficient to sustain proof of the charge at any time before or after the date or dates alleged, prior to the finding of the indictment or the filing of the complaint and within the period of limitations provided by law: Provided, That the court may on motion require the prosecution to state the time or identify the occasion as nearly as the circumstances will permit, to enable the accused to meet the charge.”
In light of the above statute, it has been held that a defendant is, "at least within reasonable bounds”, required "to take notice that the prosecution may, after all, offer proof of another date than that expressly alleged”. People v Fitzsimmons, 320 Mich 116, 123; 30 NW2d 801 (1948), cert den, 335 US 820; 69 S Ct 42; 93 L Ed 374 (1948). People v Sherrod, 32 Mich App 183, 186; 188 NW2d 221 (1971), clearly placed the burden upon defendant to seek specificity from the prosecutor as to the date, time and place of the offense "for the purpose of giving notice of an alibi defense”. See also People v Levy, 28 Mich App 339, 341-342; 184 NW2d 325 (1970), lv den, 384 Mich 801 (1971), cert den, 404 US 827; 92 S Ct 59; 30 L Ed 2d 55 (1971).
Although defense counsel failed to specifically file a motion seeking specificity pursuant to MCLA 767.51; MSA 28.991, we find that in reality defense counsel’s vigorous pursuit at both the preliminary examination and at the beginning of trial, of a specific date, met the practical requirements of the statute. Although we decline to specifically adopt the rule of Commonwealth v Boyer, supra, we find that from the circumstances present in this case, the defendant met the requirement to seek specificity.
The crux of the problem becomes the third point in defendant’s issue three. Is the variance between the date of the offense as alleged in the information, and the evidence of the date of the offense fatal to defendant’s conviction? We find that the variance was not fatal to the conviction. At the outset we must reject defendant’s contention that there was no proof, other than Michael Gary’s testimony that the transaction took place May 25, which would tend to establish that the offense occurred at some other particular time. We have previously noted that the evidence, and the reasonable inferences to be drawn therefrom, show that the transaction took place May 21, or May 22, 1973.
People v Helzer, 54 Mich App 285, 288-289; 220 NW2d 735 (1974), lv granted, 392 Mich 818 (1974), found reversible error where the trial court failed to instruct the jury to confine its deliberations to the time period supported in the record. In the course of its discussion of the issue, Helzer stated:
"The people are entitled to some latitude in fixing the date of the offense. Where, as here, the date is not alleged with particularity, variance is not fatal provided the verdict is confined to the particular act within the scope of the complaint upon which the people introduce evidence for the purpose of procuring a conviction. People v Leneschmidt, 260 Mich 671; 245 NW 544 (1932); People v King, 365 Mich 543; 114 NW2d 219 (1962).” 54 Mich App 285, 288.
Unlike Helzer, the instant case does not involve the fact finder going beyond the record to find defendant guilty of an act. committed on "any other possible date * * * ”, In Leneschmidt, cited in Helzer, two acts were proven, but the trial court "carefully confined conviction to the one charge”. Leneschmidt noted that defendant knew, by way of the complaining witness’ testimony at the preliminary examination that the witness "was uncertain of the date, but the occasion was made clear”. The court further noted that defendant’s alibi evidence covered the time relied upon by the prosecutor as fully as the date named in the complaint. 260 Mich 671, 672. In the instant case, defendant’s alibi evidence covered May 22 to May 25, although defendant’s neighbors, Gertrude and Elgie Flowers, testified they saw defendant either "every day” or "about four days” during the week which ended May 25, 1973. Also, an examination of the preliminary examination testimony makes it clear that defendant could not have delivered the marijuana on May 25. Michael Gary had the substance for at least a day before he delivered it to Jeff Miller, who testified that he received the substance on a Wednesday, the 23rd, and kept it in his locker until Friday, the 25th. In fact, Michael Gary, in response to defense counsel’s questions, said that he might have delivered the substance on the 24th or some afternoon "around the 25th”. Although there was some uncertainty as to the specific date of the offense, the occasion, namely, the delivery of the substance, was made quite clear.
Unlike the situation present in People v Davis, 175 Mich 594, 595-596; 141 NW 667 (1913), only one act or offense, rather than "many acts”, was at issue. Likewise, this case is unlike People v King, 365 Mich 543, 545-546; 114 NW2d 219 (1962), in which another distinct offense was obviously relied upon by the fact finder to convict defendant.
It is clear that although there was some uncertainty as to the exact date of the offense, there was no ambiguity as to whether only one offense was involved. The fact finder clearly did not find defendant guilty of an offense other than the one at issue. Unlike the situation in People v Jenness, 5 Mich 305, 328 (1858), the fact finder did not choose among numerous acts and "find the defendant guilty of the act so selected”. See, People v Clark, 33 Mich 112, 114-115 (1876). As in Turner v People, 33 Mich 363, 378-379 (1876), the particular transaction testified to at trial was described at the preliminary examination, and it was that transaction for which defendant was tried and convicted. No error was committed in this situation.
By way of a supplemental brief, defendant has argued that the district court lacked jurisdiction to conduct the preliminary examination. This issue has recently been decided adversely to defendant in People v Milton, 393 Mich 234; 224 NW2d 266 (1974).
Affirmed. | [
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D. E. Holbrook, Jr., J.
Defendant was convicted by a jury of larceny of over $100, MCLA 750.356; MSA 28.588. He appeals his conviction as of right.
Two assignments of error are presented on appeal: (1) that the trial court erroneously denied defendant’s written pre-trial motion for commitment to the Center for Forensic Psychiatry; (2) that the trial court erred in admitting as evidence, two statements made by defendant in response to custodial police interrogation, absent Miranda warnings.
On July 30, 1973, some 2-1/2 months prior to trial, defendant’s attorney filed a written motion to commit defendant to the custody of the Center for Forensic Psychiatry. It was claimed that defendant was incapable of comprehending his own condition in reference to the proceedings against him and was also incapable of assisting in his defense in a rational or reasonable manner. In short, said motion asserted defendant to be incompetent to stand trial. The motion was subsequently argued before the court and denied on the basis there was no showing that defendant needed to go to the Forensic Center.
However, GCR 1963, 786.3 declares that, when a defendant moves to be committed to the Department of Mental Health, "the court shall order the defendant committed to a diagnostic facility certified by the Department of Mental Health for the performance of forensic psychiatric evaluation.” (Emphasis supplied.) People v Butler, 43 Mich App 270, 282; 204 NW2d 325, 331 (1972), rev'd on other grounds in 387 Mich 756; 194 NW2d 827 (1972). The procedure detailed in the court rule is mandatory. People v Howard, 37 Mich App 662; 195 NW2d 289 (1972). See, also, People v Jackson, 40 Mich App 237; 198 NW2d 714 (1972).
In the present case defendant filed a proper and timely motion for forensic psychiatric evaluation. Under these circumstances it was reversible error for the trial court to deny defendant’s motion. While not unaware of the majority opinion in People v Sherman Williams, 38 Mich App 370; 196 NW2d 327 (1972), we feel constrained to hold in accord with Howard, supra, which we believe to be the majority view of this court.
While our determination of the foregoing issue is dispositive of this appeal, we now address our attention to the second assignment of error set forth above. We do this because on retrial the same issue might well confront the court.
On August 9, 1973, a Walker hearing was held to determine the admissibility of defendant’s two statements made to police officers following his arrest. A review of the record of those proceedings shows that the defendant and one Henry Cobbins were arrested and taken into custody by patrolman William Sparrow for unarmed robbery. Approximately one minute following their initial detention, several other officers, including Officer Ruthven, arrived at the scene to assist. At the time of arrest and when the assisting officers arrived, defendant had around his neck what was described as a leather thong with some rings on it. Officer Ruthven took hold of the same and looked at it. At this point defendant stated, "Those are not her rings”. Officer Ruthven responded by asking, "Whose rings?”. The defendant replied, "Whoever you’re trying to accuse us of stealing from”. No further questions were asked. Up to this point no mention had been made by police as to whom defendant and Cobbins were suspected of having robbed. Miranda warnings admittedly had not been given.
The court ruled both statements admissible. The first on the ground that it was a volunteered statement and not in response to interrogation. The second because it was in answer to a question prompted by defendant’s own volunteered statement. Substantially the same statements were subsequently testified to at defendant’s trial.
We hold both statements to have been properly admitted. The first was unquestionably voluntary. Purely voluntary statements do not come within the Miranda rule. People v Moore, 51 Mich App 48; 214 NW2d 548 (1974); People v Griner, 30 Mich App 612; 186 NW2d 800 (1971); People v McKee, 28 Mich App 610; 184 NW2d 750 (1970).
With respect to defendant’s second statement, the issue for our determination is whether the question asked by Officer Ruthven constituted "custodial interrogation” within the meaning of Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). In defining "custodial interrogation” the Court in Miranda, supra, 444, stated:
"By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”
It is not disputed that defendant was in custody when Officer Ruthven asked the question and defendant responded. Neither is there any question that defendant had not been given any Miranda warnings. In resolving the issue as to whether Officer Ruthven’s question constituted "custodial interrogation” we must focus our attention on whether or not said question was initiated by Officer Ruthven or by some other cause. We believe the officer’s question was initiated solely by defendant’s previous volunteered statement. It was a natural and spontaneous reaction to defendant’s own volunteered statement and not calculated to elicit evidence against the defendant. We hold therefore that a single question asked by a law enforcement officer with no further questions being asked does not constitute "custodial interrogation” if such question was initiated or prompted by the defendant’s own previous volunteered statement and was not calculated to elicit evidence against the defendant. Both statements were properly ruled admissible.
For the reasons set forth in our resolution of the first issue above, this cause is reversed and remanded for a new trial.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). | [
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Quinn and O’Hara, JJ.
(concurring in result). We are totally unsympathetic with the result reached in this case. It offends against what we consider always to have been the basic requirement of a complaining party in making a jurysubmissible issue in a negligence case.
It might have been the better part of wisdom to have submitted the case to the jury under GCR 1963, 515 thus permitting the trial judge to do the same thing he did on a motion non obstante veredicto if he concluded a finding of negligence and consequential damage was unwarranted. If the jury took the contrary view, the directed-verdict issue before the jury submission would have been mooted.
If there were any negligence in this case it was the slightest.
If the Supreme Court did not mean what it clearly said in People v Campbell, 237 Mich 424; 212 NW 97 (1927), it would seem that it should expressly overrule it. Our most diligent research does not reveal this has been done, expressly or sub silentio:
"Slight negligence is never actionable either in the civil or criminal law * * * ”. 237 Mich at 429 (Emphasis added.)
This holding is supported by former Justice Black, surely one of the most diligent guardians of the jury’s right to decide negligence questions, in a concurrence signed by Justices Thomas M. Kavanagh, Souris and Adams. He wrote:
. "Appellant asserts, quite correctly, that 'slight’ negligence does not authorize recovery when — in a case of tort not arising from contractual relations — such negligence is charged against a defendant.” Clark v Grand Trunk Western R Co, 367 Mich 396, 403; 116 NW2d 914 (1962).
We think Campbell and Clark should control. In recently released Miller v Detroit Cab Co, 392 Mich 480; 221 NW2d 342 (1974), our view is better expressed by the dissent of Justices Swainson and Coleman.
However, the brief, and in our view, conclusionary majority opinion in that case seems to mandate a contrary result.
Interposition by intermediate appellate courts is impermissible. With recorded reluctance we concur in the result reached by Judge McGregor.
McGregor, J.
Plaintiff, a minor, brought this suit through her next friend, alleging that she was injured when defendant negligently ran into her while driving his motorcycle. At the close of plaintiffs’ proofs, defendant moved for a directed verdict of no cause of action, which the trial court granted. Following denial of plaintiffs’ motion to reconsider the grant of the directed verdict, plaintiffs moved to reopen the proofs and to submit the deposition of the defendant. This motion was denied. Plaintiffs appeal, alleging as error the trial court’s grant of defendant’s motion for directed verdict and the denial of plaintiffs’ motion to reopen the proofs.
The accident occurred on Sunday, June 11, 1972, in the middle of Maureen, the residential side street where plaintiff minor lived. Mr. Robert Belling, who lived one door west of the plaintiff on the opposite side of Maureen, testified that prior to the accident he came out of his house, entered his car, pulled around his daughter’s car and drove his car between his daughter’s and his neighbor’s car, in front of his neighbor’s driveway. At this point, the Belling vehicle was parallel to and six feet from the southern curb of Maureen, with the left side of the vehicle two or three feet from the center of the street. At this time, Mr. Belling stopped to pick up a passenger.
Belling testified that he saw defendant’s motorcycle about 120 feet away, approaching from the east at between 5 and 25 miles per hour. Belling yelled at the defendant and stuck his hand out the car window, after he looked in his sideview mirror and saw the three-year-old plaintiff run out from the Belling driveway, behind Belling’s daughter’s car, and enter the street.
Belling stated that when the motorcycle was two or three feet in front of his car, the plaintiff was two or three feet south of the center of the street, clearly visible, and 50 feet away from defendant’s oncoming motorcycle. Belling observed the collision in the rearview mirror of his car; he stated that he could not tell if the plaintiff child stopped before crossing the center, of the street, but that it appeared that the motorcycle had gone to the right, just prior to the impact, in an attempt to miss her. While the cycle wheel did not run over the plaintiff, the child was struck in the forehead by the side of the cycle crankcase and, on impact, she got caught in the front wheel.
Donald Fraser, a nephew of the Robinsons, testified that, at the time of the accident, he was in the Robinson driveway waiting for Mr. Belling to move his car and the defendant to pass by before backing into the street. Fraser heard Belling’s shout as the motorcycle passed by; Fraser never saw the child until she and the motorcycle were about to make contact. Fraser stated that, as the motorcycle swerved to the right, the plaintiff stood rigid for a split second, as if preparing to get hit. When the defendant swerved, the cycle slid out from underneath him, and appeared to catch the child and drag her across the pavement. After impact, the cycle travelled five feet before falling on its left side, throwing the defendant over the handlebars. Both Belling and Fraser testified that the defendant was travelling at approximately 25 miles per hour.
After plaintiffs rested their case, defendant moved for a directed verdict of no cause of action, which the trial court granted the following Monday morning. After the trial court denied plaintiffs’ motion to reconsider the grant of the directed verdict, plaintiffs moved to reopen the proofs and submit the deposition of the defendant. This motion also was denied. Plaintiffs allege on appeal that the denial of both motions was erroneous.
On an appeal from a directed verdict in favor of the defendant, this Court must view the facts in the light most favorable to the plaintiff. Kieft v Barr, 391 Mich 77; 214 NW2d 838 (1974). Further, as stated in Dodd v Secretary of State, 390 Mich 606, 612; 213 NW2d 109 (1973):
"When it can be affirmed that all reasonable men would agree as to the quality of an act in respect of its being either negligent or prudent, the court may give effect to such consensus of opinion, and direct a verdict in accordance therewith. * * * If there is doubt as to whether all reasonable men would draw the same conclusion from the evidence, then the question must be submitted to the 12 reasonable men appointed by the Constitution to determine disputed or doubtful questions of fact.”
Viewed in the light most favorable to the plaintiffs, the record discloses that the defendant was driving his motorcycle at approximately 25 miles per hour in a residential area where children could be seen playing. The plaintiff skipped out of a driveway and into the street; although partially obstructed by a parked car, the child could be seen from at least 50 feet away. The plaintiff froze a split second before impact. Defendant’s motorcycle slid out from underneath him when he veered to the right, thus striking the child with the motorcycle’s crankcase and dragging her along the pavement.
We hold that the trial court erred in directing a verdict for the defendant since, on the facts presented, all reasonable men would not agree that the defendant’s acts were prudent.
Plaintiff was three years old at the time of the accident; thus, she was incapable of contributory negligence. Baker v Alt, 374 Mich 492; 132 NW2d 614 (1965); Burhans v Witbeck, 375 Mich 253; 134 NW2d 225 (1965). The defendant, while operating a motor vehicle, is presumed to see what a person in the exercise of ordinary care and caution would see, that is, what is plainly visible. Adamicki v Meadows, 35 Mich App 239; 192 NW2d 364 (1971). If the plaintiff was, in fact, visible from 50 feet and standing still prior to the collision, the question of whether defendant was travelling at a safe speed and keeping a proper lookout for children playing in the residential area raises a question of fact upon which all reasonable men would not agree. Further, the question of whether the defendant could have prevented injury to the plaintiff by being able to turn slightly to his right without losing control of his vehicle, is likewise a question of fact for the jury. Humenik v Sternberg, 371 Mich 667; 124 NW2d 778 (1963).
Finding the trial court’s grant of a directed verdict in favor of the defendant reversible error, this Court need not review plaintiffs’ remaining allegation of error.
Reversed and remanded for a new trial. Costs to plaintiffs.
The former MCLA 691.691; MSA 27.1461, known as the Empson Act, is one of the recognized sources for GCR Í963, 515. | [
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N. J. Kaufman, J.
This appeal arises from a jury verdict for plaintiff in Cheboygan’s 89th District Court.. Plaintiff sued defendant on a promissory note with a balance of $1,900 and defendant counterclaimed for damages because of the manner in which plaintiff dealt with the repossessed collateral. The jury returned a verdict for plaintiff in the amount of $1,300.
Plaintiff Jones was a garage owner in Cheboygan who sold new and used vehicles. In April, 1969, plaintiff sold a used 1968 Pontiac LeMans to Willard Morgan, Jr., a minor and the son of defendant, Willard Morgan, Sr., who co-signed the note. The price of the car, less down payment, was $2,100, financed for 24 months. Plaintiff sold the note to a local bank, and defendant’s son made one payment before defaulting. After default the bank repossessed the car, and notified defendant it would be sold at public sale on December 19, 1969. Since there were no purchasers for the car and since the note was with recourse, the bank charged plaintiff’s account $605.28 and required plaintiff to pay the balance of the note of $1,334.20. The bank also returned the car to plaintiff’s lot where it remained without sale for some 20 months before the trial in District Court. In 1971, plaintiff brought suit on the note. Defendant makes five claims of error which we will discuss seriatim.
I. As a matter of law, did plaintiff act in a commercially unreasonable manner so as to deprive him of the right to recover on the note?
Two of the issues raised by defendant require a determination of whether plaintiff dealt with the collateral, the 1968 Pontiac LeMans, in a commercially reasonable manner. UCC 9-504(3); MCLA 440.9504(3); MSA 19.9504(3) reads in part as follows:
"Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable.”
When there are contested issues of fact, the issue of commercial reasonableness is one for the trier of fact. Ennis v Atlas Finance Co, 120 Ga App 849; 172 SE2d 482 (1969); First National Bank of Bellevue v Rose, 188 Neb 362; 196 NW2d 507 (1972). The jury in this case was instructed by the trial judge that if they found plaintiff to have acted commercially unreasonably by failing to dispose of the collateral for almost 20 months, they must find for defendant. The jury’s verdict of $1,300 for the plaintiff in the face of the instruction indicates they did not find plaintiff to have acted commercially unreasonably, or not so unreasonably as to have deprived plaintiff of any recovery.
To reverse the finding of the jury we must find that their verdict was against the great weight of the evidence. Williams v State Highway Dept, 44 Mich App 51; 205 NW2d 200 (1972). At trial, the jury heard testimony concerning the condition and value of the car at the time of repossession. Plaintiff tried to prove the auto was unsaleable, and defendant attempted to show the car’s value equalled the amount outstanding on the note at the time of repossession. Plaintiff testified that the auto was in very poor condition when delivered to him and he was unable to sell it at auction or private sale. Defendant acknowledged one accident resulting in damage to the front of the car, another collision with a utility pole causing damage to the side, and an oil leak caused by a rock hitting the rear end of the vehicle. However, defendant denied plaintiff’s claim that the car was "caved in” at the top, sides and rear end and that it was inoperable. Plaintiff’s counsel requested and the trial court granted a motion to allow the jury to view the automobile as it sat on plaintiff’s lot.
The jury also heard testimony that an insurance company paid $311 to have the front-end damage repaired and that the money was not used to repair the vehicle. It is unclear from the transcript whether the bank or plaintiff received this money, but plaintiff did testify it would have cost considerably more than $311 to repair the vehicle.
Plaintiff testified that he wrote defendant two or three letters to ask him to come in and talk about the matter, or plaintiff would take further action. Defendant admits receiving the notice of public sale but denies receiving any other letters from plaintiff, although defendant’s wife acknowledged receipt of one letter from plaintiff. Defendant testified he made no attempt to regain possession because he did not need the car, and his son no longer had any use for it.
While retention of depreciable collateral without sale for two years compels close scrutiny of the plaintiff’s actions, viewing the transaction as a whole, we cannot find that it is unreasonable as a matter of law, nor that the jury’s finding for plaintiff was against the great weight of the evidence.
As the sole arbiter of the credibility of witnesses, Hughes v John Hancock Mutual Life Ins Co, 351 Mich 302; 88 NW2d 557 (1958), the jury apparently believed plaintiffs testimony that the vehicle was in so poor a condition on repossession that plaintiff could not resell it. Under these circumstances we will not substitute our judgment for that of the jury.
The jury’s finding that plaintiff acted reasonably also determines defendant’s argument that he was entitled to recovery on his counterclaim under UCC 9-507; MCLA 440.9507; MSA 19.9507. This statute provides the remedy available to a debtor, the right to recover damages when a secured party acts unreasonably in disposing of collateral.
It is not necessary that such damages be affirmatively awarded to the debtor, but they may instead be set off against the amounts owed by the debtor to the creditor. Wilson Leasing Co v Seaway Pharmacal Corp, 53 Mich App 359, 371; 220 NW2d 83, 89 (1974). As we have noted, the jury’s determination as to the existence and extent of commercial unreasonableness, not being against the great weight of the evidence, is binding.
II. As a matter of law did the retention of collateral by plaintiff constitute satisfaction of the debtor’s obligation?
UCC 9-505(2); MCLA 440.9505(2); MSA 19.9505(2) provides that upon written notification a secured party may retain collateral in satisfaction of a debt. In the instant case, no written notification was made, and plaintiff denies he ever intended to retain the collateral as satisfaction of the debt. We could dispose of this argument by simply pointing to the fact that the jury rejected this contention as a matter of fact. The jury was charged:
"If you find that the plaintiff, in retaining the collateral for two years, has accepted such collateral in satisfaction of the debtor’s obligation, then you must find in favor of the defendant.”
By finding for plaintiff in the amount of $1,300, the jury clearly rejected the argument of retention of collateral in satisfaction of the debt. We find no basis on which to reverse that finding.
However, since the proceedings here evidence a misunderstanding of UCC 9-505(2) by defense counsel, and since this section is virtually uninterpreted by our case law, we address ourselves to defendant’s legal argument.
Defendant interprets §9-505(2) to deprive a secured party of the right to sue on a note where he has retained collateral for an unreasonable period. While there is some authority for defendant’s interpretation, White & Summers, Uniform Commercial Code, p 980, fn 89, § 26-8, Moran v Holman, 13 UCC Rep Serv 206 (Alas, 1973), we think the better interpretation of § 9-505(2) is that it is a provision drafted for the benefit of the secured party by allowing him the option to retain collateral in satisfaction of the debt in certain specified situations and where he manifests that intent. A debtor who has been damaged by improper retention of collateral finds his remedy in UCC 9-507(1) which allows him to recover from the secured party "any loss caused by a failure to comply with any of the provisions of Part 5 of the Uniform Commercial Code”. If the loss experienced by the debtor equals the amount due on the note, then, of course, the secured party will be entitled to no recovery. The debtor is sufficiently protected by § 9-507(1), without employing a strained reading of § 9-505(2) to imply retention in satisfaction where no such result was intended by the secured party. This result is in keeping with this Court’s decision in Michigan National Bank v Marston, 29 Mich App 99; 185 NW2d 47 (1970), which specifically rejects the contention that a creditor must sell the collateral before bringing suit on the note, the Court recognizing that:
"To the extent the creditor’s inaction results in injury to the debtor, the debtor has a right of recovery.” 29 Mich App at 108.
Such recovery is set off against any amounts due the creditor on the note, cf. Farmers State Bank of Parkston v Otten, — SD —, 204 NW2d 178 (1973); Home Finance Co v Ratliff, 374 SW2d 494 (Ky, 1964).
III. Did the trial court commit reversible error by failing to allow testimony of the "blue book” value of the collateral?
At trial defendant called an area auto dealer as an expert in car valuation and he attempted to testify as to the value of a 1968 LeMans Sport Coupe as of the date of repossession and at the date of trial. Plaintiff objected that the values would not reflect the damaged state of the car and the trial court agreed and rejected the introduction of this testimony unless a proper foundation as to the actual condition of this particular automobile was first laid.
Decisions with respect to materiality and relevancy of evidence are within the sound discretion of the trial court and are reversible only upon a showing of an abuse of discretion. People v Harrell, 54 Mich App 554; 221 NW2d 411 (1974).
Defendant points to UCC 2-724; MCLA 440.2724; MSA 19.2724 as authority that trade journal evidence of value must be allowed by the trial judge but that section clearly applies only to goods regularly bought and sold in an established commodity market, and we question whether used automobiles are bought and sold in a commodity market. In view of the damaged condition of the automobile in this case, it was not an abuse of discretion for the court to require evidence of book-value to be qualified by a consideration of the actual condition of this particular vehicle. 3 Wigmore on Evidence § 717(2), p 58, defines value in this manner:
"Value is, of course, the rate at which an exchange would in fact be made at this moment by the purchasing and selling community; hence a knowledge of what an article ought to exchange for is not a knowledge of value — at least in the sense in which courts regard it. Nor is a knowledge of the various qualities and uses of an article sufficient, if it stops short of including the exchangeable rate which these qualities actually give it.
"In short, where there is a market value, the knowledge of the witness must be of this market value.”
Professor Wigmore goes on to say at § 719(2), p 61, that personal observation of the thing to be valued is the general requirement, but that a hypothetical basis is legitimately and frequently used, § 720, p 68. The trial court warned defense counsel to lay a proper foundation, to form a complete hypothetical as to this particular vehicle, and counsel having failed to do so, the court rejected the testimony. We find no abuse of discretion in this ruling.
IV. Did the trial court err in allowing the AD DAMNUM clause to be amended at trial?
At trial plaintiff moved, over defendant’s objec tion, to increase the ad damnum from $1,300 to $1,900. Plaintiffs counsel explained that he had demanded the former amount without considering the additional $600 the bank had taken from plaintiffs account. There is no dispute that $1,900 is the amount actually owed on the note, and defendant’s only objection is that he was surprised and prejudiced by this amendment. Defendant cites Phillips v Rolston, 376 Mich 264; 137 NW2d 158 (1965), in support of his argument. Defendant failed to note this Court’s decision in Gibeault v City of Highland Park, 49 Mich App 736; 212 NW2d 818 (1973), affirmed, 391 Mich 814; 217 NW2d 99 (1974), where a post trial amendment of the ad damnum clause was allowed, and which criticized the rationale of Phillips. The Supreme Court’s affirmance indicates that liberal amendments to ad damnum clauses will be sustained.
Defendant also cites DCR 118 as placing the burden on a moving party to prove no prejudice will result to the opposing party by amendments to conform with proofs. We need only note that the prejudice which must be disproved is that which the opposing party may experience "in maintaining his action or defense upon the merits”. The amount of damages in this case does not go either to the ability to maintain the action or to the merits of the case.
Amendment of pleadings is a matter within the sound discretion of the trial judge, and the policy is to allow liberal amendment of pleadings. Ben P Fyke and Sons Inc v Gunter Co, 390 Mich 649; 213 NW2d 134 (1973); Bigelow v Walraven, 392 Mich 566; 221 NW2d 328 (1974). To reverse the trial court would require evidence of a clear abuse of discretion and none is found here.
V. Did the trial court commit reversible error by incorrectly emphasizing plaintiff’s position when summarizing the facts at the conclusion of trial?
DCR 516.7 states in part as follows:
"At the close of the evidence each party shall submit to the court a statement of the issues and his theory of the case as to each issue.” From the record it appears defendant did not submit such a statement. The judge charged as to the theories of both sides and defendant objected then and now complains that the brevity of the statement of defendant’s case was prejudicial to defendant. Once the charge was given, it would have been highly prejudicial to plaintiff to recall the jury to further instruct on defendant’s theory of the case, and we find no reversible error in the trial court’s refusal to further instruct. A charge must be considered in its entirety, Shreve v Leavitt, 51 Mich App 235; 214 NW2d 739 (1974), and if the theories of the parties and the applicable law are adequately and fairly presented to the jury, no reversible error is committed. Baker v Saginaw City Lines, Inc, 366 Mich 180; 113 NW2d 912 (1962). Number of words or sentences is not the determining factor and viewed in its entirety the trial court’s charge was not so prejudicial as to warrant reversal.
Affirmed. Costs to plaintiff.
Neither party complains of this instruction, but we wish to note that the jury need not be put to such a choice. A creditor is not precluded from all recovery by acting commercially unreasonably. Rather, the jury may determine the amount of damage resulting from such unreasonableness, and set off that amount against any sums due the creditor on the note. Wilson Leasing Co v Seaway Pharmacal Corp, 53 Mich App 359, 371; 220 NW2d 83, 89 (1974); UCC 9-507(1); MCLA 440.9507(1); MSA 19.9507(1). We may surmise that the jury, by returning a verdict for $1,300 on a $1,900 note, may have applied this set-off through a process of common sense. | [
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V. J. Brennan, J.
Defendant, David Mark Stomps, was originally charged with breaking and entering a business place (MCLA 750.110; MSA 28.305). He pled guilty to the added offense of attempted breaking and entering (MCLA 750.92; MSA 28.287 and MCLA 750.110; MSA 28.305) and was sentenced to from three to five years in prison. He now appeals.
Defendant first claims that the record of the guilty plea proceeding does not reflect all of the terms of the plea agreement and that, because of this, his guilty plea must be reversed for failure to comply with GCR 1963, 785.7(2). Defendant’s claim in this regard, however, is belied by his own sworn testimony at the plea proceeding. At the time of his plea defendant acknowledged that no promises of any kind, other than the promise to drop the original charge of breaking and entering in this case, were made to him with respect to this plea of guilty. Defendant relies on the transcript of his later plea to another, unrelated breaking and entering charge as support for his claim that other promises were made. Our examination of the transcript relied on by defendant fails to disclose any statement made by any person which would place in question defendant’s earlier assurances that no other promises were made with respect to the plea in the case at bar. Accordingly, we refuse to reverse defendant’s conviction on this ground. See People v Smith, 52 Mich App 731; 218 NW2d 151 (1974).
Defendant raises other issues on this appeal which we have considered and find to be without merit. See People v Lee, 391 Mich 618; 218 NW2d 655 (1974), and People v Smith, supra.
Conviction affirmed.
This case was consolidated and heard together with defendant’s appeal in #19870. We have chosen, however, to issue separate opinions in each of these cases. Also, a review of our Supreme Court’s recent opinion in People v Shekoski, 393 Mich 134; 224 NW2d 656 (1974), as applied to these facts does not require a different holding. | [
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J. H. Gillis, P. J.
Defendant was convicted of first-degree criminal sexual conduct, MCL 750.520b(l)(d)(ii); MSA 28.788(2)(l)(d)(ii). Sentenced to five to ten years in prison, he appeals as of right.
At trial, the prosecutor’s opening statement included a comment that the proofs would show that, after the sexual assault, defendant "told one of the men to go downstairs and to heat up a coat hanger”, apparently intending to insert it in complainant’s vagina. Although the proofs did establish that, on March 28, 1978, defendant engaged in sexual penetration with the complainant, aided or abetted by two other persons (Spanky and Kiyo) under circumstances in which force or coercion was used, the complainant testified that Spanky approached her with the hanger, that she pulled defendant in front of her, and that Kiyo told Spanky to put the hanger down.
Defendant asserts error because the proofs did not support the prosecutor’s opening statement. We find no error, primarily because the complainant’s statement to the police which was read into the record during trial indicated that it was defendant who got the hanger, heated it on the stove, and then gave it to Spanky. The prosecutor’s opening statement was made in good faith under circumstances where defendant did not object. Reversal is not required on this ground. People v Moncure, 94 Mich App 252, 261; 288 NW2d 675 (1979), People v Joshua, 32 Mich App 581, 586; 189 NW2d 105 (1971), lv den 386 Mich 758 (1971), cert den 409 US 853; 93 S Ct 183; 34 L Ed 2d 96 (1972).
On the second day of trial, defendant was at least 25 minutes late for trial. While awaiting his arrival, the trial judge noted that one juror had advised the judge that morning that his (the juror’s) son had been arrested for a larceny offense during the weekend. The attorneys joined the judge and the juror in chambers and questioned the juror about his ability to sit on the jury in light of his son’s arrest. When they reentered the courtroom, the judge noted on the record that the juror had stated that he knew how defendant’s father must have felt while his son was on trial. The defense attorney did not personally desire to excuse the juror, but he stated that he had no objection to the prosecutor’s request in that regard. Accordingly, the juror was excused in defendant’s absence.
Defendant now claims that his constitutional right to be present at all critical stages of his prosecution was violated when the juror was excused outside defendant’s presence.
In People v Morgan, 50 Mich App 288; 213 NW2d 276 (1973), the jurors were questioned about their awareness of media publicity while in chambers in defendant’s absence. Defendant alleged a right to new trial on this basis, and this Court agreed. The Michigan Supreme Court reversed, however, 400 Mich 527, 536; 255 NW2d 603 (1977), cert den 434 US 967; 98 S Ct 511; 54 L Ed 2d 454 (1978), reh den 434 US 1041; 98 S Ct 783; 54 L Ed 2d 791 (1978), adopting the following test for analyzing the issue from Wade v United States, 142 US App DC 356, 360; 441 F2d 1046, 1050 (1971):
" 'It is possible that defendant’s absence made no difference in the result reached. The standard by which to determine whether reversible error occurred [is] * * * whether there is "any reasonable possibility of prejudice” ’.”
The record does not reveal any reasonable possibility of prejudice in the instant case. Although defendant’s delayed arrival in court may have been entirely reasonable, the fact remains that he was not present during the in-court discussion whether to excuse the juror because he was late, not because he was affirmatively barred from being present. Moreover, his attorney did not move to delay the discussion until defendant arrived or voice any objection to the proceedings on defendant’s behalf after defendant did arrive in court. Finally, the decision to excuse the juror was reasonable, and, in any event, the judge could have excused the juror even in defendant’s presence as an exercise of his discretionary power. People v Bell, 74 Mich App 270, 274; 253 NW2d 726 (1977), MCL 768.18; MSA 28.1041.
On direct examination, defendant was asked whether he had ever been arrested and convicted of a felony. Defendant’s answer was that "[he] had a record before but it was dropped, the charges were dropped”. Further, he answered in the negative the question whether he had ever been found guilty of any felony.
Defendant’s testimony does not require the granting of a new trial. Defense counsel’s question was not asked in order to impeach defendant, but to establish that he had never been convicted of a felony. Any prejudice which flowed from this dialogue was minimal and cannot be charged in any event to the prosecutor, who never referred to the subject before or after it was raised by defendant. People v Johnson, 46 Mich App 212, 219; 207 NW2d 914 (1973), People v Bearden, 29 Mich App 416, 418; 185 NW2d 438 (1971), lv den 384 Mich 832 (1971).
The most serious question raised on the appeal of this case is whether defendant’s constitutional right to remain silent was violated during trial. On direct examination, defendant testified that the complainant had telephoned him about three days after March 28, 1978. Defendant told complainant that he had heard that the police were looking for him on a rape charge and that she should keep defendant’s name "out of it”. On cross-examination, the following dialogue ensued:
”Q. By the way, you didn’t go to the police when you heard that they were looking for you?
"A. No.
”Q. I mean you hadn’t been involved in this but you heard that they were looking for you for something you hadn’t done but you didn’t go to them to talk to them about it?
"A Well, because I thought it was a rumor running around.”
Defense counsel did not object to the prosecutor’s questions, so the error, if any, is waived absent a finding of manifest injustice. People v Stinson, 88 Mich App 672, 674; 278 NW2d 715 (1979).
The error claimed by defendant involves the tacit admission rule which permits the introduction into evidence of adoptive admissions; The rule is not applicable to criminal cases in Michigan. MRE 801(d)(2)(B), People v Bigge, 288 Mich 417, 421; 285 NW 5 (1939), People v Washington, 100 Mich App 628, 630; 300 NW2d 347 (1980). If the rule were applied in criminal cases, it would violate the Fifth Amendment right against self-incrimination. In Bigge, defendant was silent in the face of a statement that he was "guilty as hell”. In Washington, defendant remained silent "in the face of an accusatory statement”.
In People v Bobo, 390 Mich 355; 212 NW2d 190 (1973), defendant was asked by the prosecutor whether he had advised the police that, just before his arrest, two men ran past him. Although the implication inherent in the question was that defendant did not offer an available "defense” to the arresting officers’ suspicions, the function of the question was to show defendant’s silence in the face of an accusatory action (arrest). The Court reversed defendant’s conviction:
"We will not condone conduct which directly or indirectly restricts the exercise of the constitutional right to remain silent in the face of accusation. 'Nonutterances’ are not statements. The fact that a witness did not make a statement may be shown only to contradict his assertion that he did.” 390 Mich 355, 359.
See, also, People v Wade, 93 Mich App 735, 736-740; 287 NW2d 368 (1979), where defendant hid in her basement until the police returned to her home a second time. Recognizing that "[a] defendant’s constitutional right to remain silent is constant; there is no distinction between silence prior to, at the time of, or following arrest”, the Court affirmed because the trial court gave a cautionary instruction which "alleviated any possible prejudice to the defendant”.
Here, no cautionary instruction was requested or given. Further, the jury was confronted with the testimony of two witnesses, the complainant and the defendant, and asked to balance their credibility in a search for the truth. Although the prosecutor did not refer to defendant’s answers to his questions during his closing argument, the implication was clearly given during the testimony that, if defendant was innocent, he would have gone to the police to counter the rumor that they were looking for him on a rape charge. Because the entire case hinged on the credibility of defendant and the complainant, we cannot say that, in a trial free of the error, one juror might not have voted to acquit. People v Christensen, 64 Mich App 23, 32-33; 235 NW2d 50 (1975), lv den 397 Mich 839 (1976).
The final question for our consideration is whether error resulted when the trial court instructed the jury as follows:
"In considering the case, you are not to go beyond the evidence to hunt for doubts nor should you entertain such doubts as are merely fanciful or based on groundless conjecture. A doubt to justify an acquittal must be a reasonable doubt. A reasonable doubt is a fair doubt growing out of the testimony of the case. It is not a mere imaginary, captious [sic] or possible doubt.” (Emphasis supplied.)
The emphasized portion of the instruction was not as carefully worded as it might have been. For purposes of remand, we note that "[a] reasonable doubt may arise 'from the lack, want or insufficiency of the evidence for the State’, * * *”. People v Davies, 34 Mich App 19, 26; 190 NW2d 694 (1971), lv den 385 Mich 773 (1971). Hence, to say that the jury should not go beyond the evidence comes dangerously close to precluding consideration of the "lack, want or insufficiency of the evidence”.
Reversed and remanded for a new trial.
Fourteen jurors were originally impaneled. | [
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Per Curiam.
Plaintiff appeals a decision of the Workers’ Compensation Appeal Board (WCAB) which found that plaintiffs injuries did not arise out of and in the course of employment.
The parties agree that plaintiff was totally and permanently disabled as a result of an automobile accident which occurred when the automobile in which he was a passenger was struck head-on by another vehicle. The accident occurred at approximately 11:30 p.m. on June 9, 1974, while plaintiff was on a direct route home from the Copper Country Fireman’s Tournament which was held in L’Anse, Baraga County.
Plaintiff was a member of the Tamarack City Volunteer Fire Department (department) in Osceola Township, Houghton County. The Copper Country Fireman’s Tournament was an annual event at which members of various fife departments in the region and their families were invited to participate. The scheduled events on June 9, 1974, included a business meeting at approximately 11 a.m., a fire-fighting equipment demonstration at approximately 1 p.m., a fire-fighter’s race, a parade at 7 p.m., and a social event with music and dancing. The business meeting involved a discussion of the latest fire-fighting and recruitment techniques and the presentation of information concerning new rules and regulations governing fire departments. The equipment demonstration was conducted by manufacturers of fire-fighting equipment. The purpose of the demonstration was to sell new equipment and also to provide education concerning its use. The remaining activities were primarily social in nature. However, discussions and informal "bull sessions” invariably occurred among participants concerning the latest fire-fighting techniques. Plaintiff did not clearly recall the events of the day. He was unsure whether he attended the business meeting or marched in the parade, but was sure that he attended the equipment demonstration.
Plaintiff testified that although his department does not make it mandatory for members to attend, it is good for the department if 100% attendance is achieved. Members of the department are subject to questioning concerning their failure to attend. Plaintiff also testified that two delegates from the .department were assigned to attend. Members of the department who chose to attend were not reimbursed for expenses incurred in attending the tournament and each person who desired to attend made his own arrangements concerning transportation.
Paul King, who was also a member of the department in 1973, testified that he attended the tournament as an appointed delegate of the department. Mr. King stated that there was no requirement that any member of the department attend the tournament. Although the department informs its members when such tournaments are being held and prefers a high turnout, the decision of whether to attend is completely voluntary, without any obligation being imposed by the department.
Melvin Schmidt, a member of the department for 17 years, testified that although the department had 25 members, only 5 attended the tournament in 1974. The only obligation to attend the tournament was self-imposed; there was no requirement that anyone attend.
There was also testimony that the department made a distinction between the Copper Country Tournament and the Upper Peninsula Tournament. A fund was established to finance those who attended the Upper Peninsula Tournament while those who attended the Copper Country Tournament were not reimbursed.
The hearing referee found that the plaintiff was totally and permanently disabled and that his injuries arose out of and in the course of his employment with the department.
The WCAB reversed the decision of the hearing referee:
"From the record, it cannot be said that plaintiff has carried his burden of showing that his attendance at the tournament was an 'incident’ of his employment, or that his attendance was 'definitely urged’, 'expected’ or even 'encouraged’. Therefore, the decision of the administrative law judge must be reversed.”
After this Court denied plaintiff’s application for leave to appeal by an order entered on February 23, 1981, Docket No. 54229, plaintiff sought leave to appeal to the Supreme Court. In lieu of granting leave to appeal, the Supreme Court remanded the case to this Court for consideration as on leave granted, 412 Mich 867 (1981).
The sole question for our determination is whether the WCAB erred in denying compensation to the plaintiff.
The standard of review by this Court on appeals from the WCAB is set forth in Const 1963, art 6, §28:
"Sec. 28. All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record. Findings of fact in workmen’s compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law.”
See MCL 418.861; MSA 17.237(861), Gibbs v General Motors Corp, 114 Mich App 1; 318 NW2d 565 (1982). The findings of fact of the WCAB are conclusive if there is any evidence to support them. Kostamo v Marquette Iron Co, 405 Mich 105, 135-136; 274 NW2d 411 (1979). The determination of whether an injury arises out of and in the course of employment may be a question of law, a question of fact, or a mixed question of law and fact. Koschay v Barnett Pontiac, Inc, 386 Mich 223, 225; 191 NW2d 334 (1971).
Plaintiffs claim for compensation was based on MCL 418.161; MSA 17.237(161), which provided in part:
"Sec. 161. (1) An employee as used in this act shall mean:
"(a) Every person in the service of the state or of any county, city, township, village, or school district, under any appointment, or contract of hire, express or implied, oral or written.
"Members of a volunteer fire department of a city, village, or township shall be deemed to be employees of the city, village, or township and entitled to all the benefits of this act when injured in the performance of their duties as members of the volunteer fire department and shall be deemed to be receiving the salary or wages from the village, city, or township as would secure for the member of a volunteer fire department the maximum benefit provided under this act.”
Despite plaintiffs claim to the contrary, the WCAB did not base its decision on a determination of whether the tournament was a social event or a business event. Furthermore, although the WCAB noted that some doubt existed concerning whether plaintiff attended the business meeting and the equipment demonstration, its decision did not rest on a resolution of that dispute. Rather, the WCAB opined that the tournament was akin to a convention or an educational seminar and adopted the test employed by Professor Larson in determining whether plaintiffs injuries arose out of and in the course of his employment as a volunteer fire fighter:
" 'Sec 27.31(c) Conventions and institutes
" 'As to the attending of conventions and trade expositions, compensability similarly turns on whether claimant’s contract of employment contemplated attendance as an incident of his work. It is not enough that the employer would beneñt indirectly through the employee’s increased knowledge and experience.
" 'Employment connection may be supplied by varying degrees of employer encouragement or direction. The clearest case for coverage is that of a teacher who is directed to attend a teacher’s institute. It is also sufficient if attendance, although not compulsory, is 'deñnitely urged’ or 'expected’ but not if it is merely 'encouraged.’ Connections with the employment may also be bolstered by the showing of a specific employer benefit, as distinguished from a vague and general benefit * * *.’ 1A Larson’s Workmen’s Compensation Law, 1979, 5-292, 5-293 — 5-296.” (Emphasis supplied by WCAB.)
The WCAB found that plaintiffs attendance was not compulsory, urged, expected, or even encouraged. It is clear that there was evidence to support the factual determination of the WCAB. Although plaintiff testified that members of the department might be questioned if they failed to attend the tournament and that the fire chief expected members to attend, he could not say that the chief expected attendance at this particular event and admitted that any obligation to attend was self-imposed. Members who chose to attend made their own travel arrangements and paid their own expenses.
Since the findings have evidentiary support, this Court may not disturb them. Kostamo v Marquette Iron Co, supra. Therefore, the only issue before this Court is whether the WCAB erred in adopting the test set forth above. We find that there was no error on the part of the WCAB.
The general rule set forth in Larson’s treatise and applied by the WCAB consists of a two-part test: (1) was the employer directly benefited by the employee’s attendance; and (2) was attendance compulsory or at least definitely urged or expected as opposed to merely encouraged? This rule appears to be consistent with Michigan law.
In Bush v Parmenter, Forsythe, Rude & Dethmers, 413 Mich 444; 320 NW2d 858 (1982), where an attorney attended a seminar in another city and was fatally wounded on his return trip home after a seven- to eight-hour deviation within a few miles of his home, the Court recognized that an employer must bear the risk for one complete round trip when an employee is engaged in a trip of special benefit to the employer. In that case, the attorney, who was a partner of the law firm, was expected to participate in the seminar and all his expenses were paid by the law firm. His atten dance at the seminar was approved by the managing partners of the law firm. The Court found that the attorney was within the course of his employment while traveling to, attending, and returning from the seminar because the law firm encouraged its attorneys to attend the employment-related, educational seminars which, in effect, sent the attorney on a special mission. However, the Court denied compensation because the attorney deviated during his return trip to so great an extent and in such a manner involving risks unrelated to his business as to dwarf the business portion of the trip.
Also, in Mann v Detroit Bd of Ed, 266 Mich 271; 253 NW 294 (1934), where a school principal was killed in an automobile accident while on his way to attend a meeting of school principals at the University of Michigan, the Court granted compensation on the theory that attendance at the meeting of school principals would be of some benefit to the school system and it could also be of personal benefit to the principals who attended. Further, the principal attended the event during school time and the trip was approved by his school superintendent. Thus, we find that the rule contained in Larson’s treatise and applied by the WCAB is consistent with Michigan case law.
Applying the two-part test to the instant case, the WCAB found that there was no evidence that plaintiff’s attendance at the tournament was an "incident” of his employment, and that there was no special benefit to his employer but instead merely a general benefit, which is not sufficient. Also, the WCAB found that plaintiff was under no obligation to attend the tournament, his attendance was not definitely urged, expected, or even encouraged. There was no error on the part of the WCAB in applying the test to the facts that it found. As previously stated, it is for the WCAB and not the Court of Appeals to act as trier of fact, weighing the credibility of the evidence and drawing reasonable inferences from the facts established. While the Court of Appeals may review questions of law, the findings of fact made by the WCAB, where supported by competent evidence on the record, may not be disturbed on appeal. Teddy v Dep’t of State Police, 102 Mich App 412; 301 NW2d 876 (1980). Since we have found that there is evidence to support the WCAB’s findings of fact and the WCAB correctly applied the law, we must affirm the denial of benefits to plaintiff.
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Per Curiam.
The plaintiff in this case was involved in an automobile accident. His vehicle was struck by a car driven by an uninsured motorist. Plaintiff’s economic loss had been paid under his personal protection insurance coverage. He made a claim with defendant insurer for noneconomic damages under the uninsured motorist coverage of his policy. The matter was referred to arbitration as provided for under the policy.
The defendant stipulated to the negligence of the uninsured motorist. Attorneys for the respective parties argued the necessity of meeting the statutory threshold of serious impairment of body function in order to recover for damages sustained by the plaintiff. The three-man arbitration panel, in a two-to-one decision, found no cause of action. It was clear that this decision could only be based on a holding that the plaintiff was obligated to show a serious impairment of body function.
Plaintiff filed an appeal in Wayne County Circuit Court. This claim was considered to be a motion to vacate the arbitration award. Defendant therein filed a motion for accelerated judgment and the plaintiff a motion for summary judgment; the issue thus presented to the court was whether the threshold of serious impairment of body function was required to be met where injuries accrued through the negligence of an uninsured motorist. The trial court held that it was.
MCL 500.3135; MSA 24.13135 reads as follows:
"(1) A person remains subject to tort liability for noneconomic loss caused by his ownership, maintenance or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function or permanent serious disfigurement.
"(2) Notwithstanding any other provision of law, tort liability arising from the ownership, maintenance or use within this state of a motor vehicle with respect to which the security required by subsections (3) and (4) of section 3101 was in effect is abolished except as to:
"(a) Intentionally caused harm to persons or property. Even though a person knows that harm to persons or property is substantially certain to be caused by his act or omission, he does not cause or suffer such harm intentionally if he acts or refrains from acting for the purpose of averting injury to any person, including himself, or for the purpose of averting damage to tangible property.
"(b) Damages for noneconomic loss as provided and limited in subsection (1).
"(c) Damages for allowable expenses, work loss and survivor’s loss as defined in sections 3107 to 3110 in excess of the daily, monthly and 3 year limitations contained in those sections. The party liable for damages is entitled to an exemption reducing his liability by the amount of taxes that would have been payable on account of income the injured person would have received if he had not been injured.”
At that time in the arbitration proceedings, the issue had not been clearly determined, but subsequently in Bradley v Mid-Century Ins Co, 409 Mich 1, 62-63; 294 NW2d 141 (1980), the Court held as follows:
"Under the no-fault motor vehicle liability act an insured may collect from his insurer for work loss and medical expenses without regard to fault. He may sue the negligent tortfeasor for excess economic loss and, if the threshold of injury is met, for noneconomic loss. The statute requires that motorists carry residual liability insurance in addition to no-fault insurance to provide a source of recovery to persons severely injured as a result of driver negligence. If a motorist is uninsured he may be sued for all economic loss as well as above-threshold non-economic loss.”
It is clear, therefore, that the arbitration decision was correct. As pointed out by the trial court, the determination of the severity of the injuries is a fact question to be decided by the finder of fact. McKendrick v Petrucci, 71 Mich App 200; 247 NW2d 349 (1976).
The trial court’s denial of plaintiffs motion for summary judgment and its grant of defendant’s motion for accelerated judgment are affirmed. | [
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Per Curiam.
Plaintiffs brought this action to determine which of the two defendant insurance companies was liable for plaintiff Thomas Mills’s injury in a motorcycle-motor vehicle accident. De fendant, Aetna Casualty & Surety Company (Aetna), was granted summary judgment on February 1, 1980. Plaintiffs were then granted summary judgment against defendant Auto-Owners Insurance, Inc. (Auto-Owners) on March 17, 1980. Defendant Auto-Owners appeals that grant of summary judgment. Plaintiffs cross-appeal on the summary judgment which was granted to defendant Aetna, to which both defendants are cross-appellees. The following facts and issue were stipulated to by all three parties.
This controversy arises out of a motor vehicle-motorcycle accident which occurred in the State of Michigan, near the City of Iron Mountain, on or about June 25, 1979. The plaintiff-appellee, Thomas Mills, was operating a motorcycle when he collided with an automobile driven by Perry Fromm. Thomas Mills underwent hospitalization and medical treatment. At the time of the accident, Thomas Mills resided with his father, plaintiff-appellee George Mills, in the State of Wisconsin and held a valid driver’s license which was issued by the State of Wisconsin. George Mills had a motor vehicle in his household which was properly insured through Auto-Owners, the defendant-appellant and cross-appellee herein. The Auto-Owners policy also insured the operation of the motorcycle. While the Wisconsin policy does not contain the Michigan no-fault insurance language, it does provide for assumption of nonresident laws requiring compulsory insurance as follows:
”20. Financial responsibility laws; compulsory insurance laws. Such insurance as is afforded by this policy under Coverages A and B shall comply with the provisions of the motor vehicle financial responsibility law of any state or province to the extent of the coverage and limits of liability required by such law. Where a motor vehicle compulsory insurance law or any similar law requires a non-resident to maintain insurance with respect to the operation or use of a motor vehicle in such state or province and such insurance requirements are greater than the insurance provided by this policy, the limits of the Company’s liability and the kinds of coverage afforded shall be as set forth in such law; provided that the insurance under this agreement shall be reduced to the extent that there is other valid and collectible insurance under this or any other motor vehicle insurance policy. In no event shall any person be entitled to receive duplicate payments for the same elements of loss.”
Auto-Owners properly filed the written certification required of insurers under MCL 500.3163; MSA 24.13163 and is licensed to do business in the State of Michigan. At the time of this accident, Perry Fromm was a Michigan resident and had automobile insurance in effect on his vehicle which was issued by Aetna, the defendant-appellee and cross-appellee herein.
In September of 1979, plaintiffs commenced an action in Dickinson County Circuit Court in which plaintiffs asked the court to determine whether plaintiffs should be awarded automobile insurance benefits from Auto-Owners, the insurer of Thomas Mills’s father and the motorcycle, or from Aetna, the insurer of the owner of the motor vehicle involved in the accident. Defendant Aetna was granted summary judgment on February 1, 1980.
Plaintiffs then moved for summary judgment against Auto-Owners as to first party liability under the no-fault act, and their motion for summary judgment was granted pursuant to a final order entered on March 17, 1980. The final order incorporated a written opinion of the lower court dated February 1, 1980, which disposed of the questions between Auto-Owners and plaintiffs. Auto-Owners now appeals from that final order and opinion.
In order to protect their interests, plaintiffs have filed a cross-appeal in opposition to the summary judgment granted to Aetna. Both Aetna and Auto-Owners are cross-appellees.
All parties agree that the case of Underhill v Safeco Ins Co, 407 Mich 175, 186; 284 NW2d 463 (1979), clearly held that under the terms of the no-fault act, resident motorcyclists are entitled to claim no-fault benefits from their own insurance companies when they are injured in accidents involving motor vehicles.
The Court in Underhill first emphasized that the no-fault act only requires that owners of "motor vehicles” maintain security for payment of no-fault benefits and that motorcycles are not "motor vehicles” since they do not have more than two wheels. However, the Court then held that "[t]he 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”. Id., 184, 186. Thus, even though a motorcycle is not a "motor vehicle”, the motorcyclist is entitled to no-fault benefits. See, also, Piersante v American Fidelity Ins Co, 88 Mich App 607, 609; 278 NW2d 691 (1979).
The Court then resolved the question of whether a motorcyclist should be allowed to recover these benefits from the insurer of the owner of the motor vehicle involved in the accident or from the insurer of the no-fault policy of a family member in the same household as the motorcyclist. The Court concluded that under the priority schedule established in MCL 500.3114; MSA 24.13114:
"the owner’s or family member’s insurer is primary and * * * 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.” Underhill, supra, 192.
This conclusion was in accord with what the Court determined to be the legislative purpose of the no-fault act: that "injured persons who are insured or whose family member is insured for no-fault benefits would have primary resort to their own insurer”. Id., 191.
This ruling in Underhill applies where the motorcyclist is a Michigan resident claiming under MCL 500.3105(1); MSA 24.13105(1), which is the provision that operates to give Michigan residents insurance benefits without regard to fault. By contrast, a nonresident must claim no-fault benefits under MCL 500.3163; MSA 24.13163, which is the section that provides that when a nonresident is insured by an out-of-state insurer who is authorized to transact insurance in Michigan, that insurer is liable according to Michigan no-fault rules. Sections 3105 and 3163 read as follows, respectively:
"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.”
"An insurer authorized to transact automobile liability insurance and personal property protection insurance in this state shall file and maintain a written certification that any accidental bodily injury or property damage occurring in this state arising from the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle by an out-of-state resident who is insured under its automobile liability insurance policies, shall be subject to the personal and property protection insurance system set forth in this act.”
Defendant Auto-Owners’s only argument on appeal is that § 3163 requires that the injury arise out of the operation or use of a motor vehicle, which does not include a motorcycle; and, since the injuries in the present case arose from the use of a motorcycle rather than from the ownership, operation, maintenance or use of a motor vehicle, § 3163 is unavailable to plaintiffs and plaintiffs must seek benefits from the insurer of the owner or driver of the motor vehicle involved in the accident. Defendant Auto-Owners’s argument is essentially identical to the argument which was rejected in Underhill and Piersante. As noted hereinbefore, those cases held that as long as the vehicle which is involved in the accident with the motorcycle is a "motor vehicle”, the motorcycle, even though it is not a "motor vehicle”, is entitled to no-fault benefits. Defendant Auto-Owners’s argument would lead to an interpretation of the wording in § 3163 which is inconsistent with the interpretation of virtually identical wording in §3105. This Court’s duty, however, is to construe the act "to render it internally consistent and to avoid absurd results”. Shoemaker v National Ben Franklin Ins Co of Michigan, 78 Mich App 175, 178; 259 NW2d 414 (1977).
Therefore, defendant Auto-Owners’s argument is rejected by this Court, and the judgment of the trial court is affirmed.
Affirmed. No costs, interpretation of a statute being involved. | [
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P. J. Marutiak.
Plaintiff is the personal representative of the estate of Cheryl Bender, who died as a result of injuries received in an automobile collision. The jury returned a verdict in the amount of $100,000. Following the entry of judgment, the full amount required by the judgment was paid and the plaintiff executed a satisfaction of judgment, filed in the trial court. No conditions were attached to either the acceptance of the money or the satisfaction of judgment.
Plaintiff claims error in the trial court’s refusal to instruct a jury that siblings of the deceased were among the persons represented by the plaintiff and to instruct the jury regarding an award of damages for the loss of society and companionship suffered by the siblings. The first issue raised is whether the siblings are entitled to a wrongful death recovery where both parents survive the decedent. The trial judge succinctly and pointedly described the State of Michigan law when he stated: "At the outset it might be noted this court is deeply indebted to the Court of Appeals for guidance, not only the bench but the bar as well, when two panels come down with opinions which are diametrically opposed points of law.” As bench and bar well know, opposite conclusions on the issue have been reached in Crystal v Hubbard, 92 Mich App 240; 285 NW2d 66 (1979), and Scott v Burger King Corp, 95 Mich App 694; 291 NW2d 174 (1980). What the learned judge could have added is that the Crystal case is now on appeal to the Supreme Court and arguments were completed in November, 1980, and bench and bar are still considering clarification.
Both Crystal and Scott turn on the definition of "next of kin” in the wrongful death act, MCL 600.2922; MSA 27A.2922. Although this panel is not inclined to expand liability under the statute, it will not further confuse bench and bar by learned pronouncements on the issue. Instead it will patiently await clarification by the Supreme Court. A determination on this issue is not necessary to a determination of the instant appeal.
The other issue is whether plaintiff has waived her right to bring this appeal by accepting the money due under a money judgment and filing a satisfaction thereof. "As a general rule, a plaintiff who accepts satisfaction, in whole or in part, of a judgment in his favor for money or property entered as upon a common-law action, waives his right to maintain an appeal or to seek a review of the judgment for error. This applies in any form of practice or procedure whereby the appeal or review might result in again putting in issue his right to the money or property received.” 169 ALR 989. Similar law has been recognized in Michigan. Westgate v Adams, 293 Mich 559; 292 NW 491 (1940).
There is, however, no waiver where the appeal cannot affect the benefits already accepted. Therefore, the resolution of this issue depends, first, upon whether the Supreme Court will follow Scott or Crystal. Obviously, if Crystal is followed, there is no appealable issue. If Scott is followed then the issue is restated thusly: If the siblings can recover may a new trial be limited to their damages?
In this case the jury found defendants negligent. There is no way to review the elements the jury considered in finding the $100,000 adequate compensation. This amount included compensation for the breakup of the family unit and is evidenced in the holding of the trial court:
"Mr. Quinn [plaintiffs’ counsel]: Your Honor, just to clarify that holding on what evidence is now relevant, it is my understanding that evidence concerning the impact that the death of Cheryl Bender has had on the family unit, since Leatrice Wohlfert, the mother of the child is a member of the family, is admissible on the question of Leatrice Wohlfert’s claims for loss of society and companionship.
"I want to make sure I’m correct in that understanding.
"Mr. Plaxton [defendants’ counsel]: As long as it is pertinent to her damages, yes.”
The siblings’ cause of action for the loss of companionship, if allowed, is not separate and distinct from losses suffered due to the breakup of the family unit. A partial new trial limited to the siblings’ damages would involve a serious risk of redundant awards. If a new trial were to be ordered the total amount of damages must still be stated in a lump sum to conform with MCL 600.2922; MSA 27A.2922. Therefore, the damages would be tried de novo to avoid redundant awards. If damages then must be tried de. novo, plaintiff has waived her right to appeal by accepting the previous award.
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Per Curiam.
Plaintiffs appeal as of right from a jury verdict of no cause of action in favor of defendant.
Plaintiffs owned a dairy farm in Sanilac County. Defendant corporation sold cattle feed to area farmers. Sometime in 1974, plaintiffs became indebted to defendant for $30,000 worth of feed. Plaintiff Paul Heberling obtained a loan for the amount of indebtedness from Sanilac County Bank. The money received from plaintiff from the bank was paid to defendant to discharge the debt.
William Palmer, president and sole shareholder of defendant corporation, testified that when the loan was obtained, he was required by the bank to sign a separate document as guarantor of the note. Palmer’s testimony was corroborated by Cecil Hamill, executive vice president of Sanilac County Bank. Plaintiff Paul Heberling stated that William Palmer never guaranteed the debt, or at least Heberling was not aware of a guarantee. The loan guarantee was not produced at trial. Later, the note was paid to Sanilac County Bank by plaintiffs and discharged.
By April, 1976, plaintiffs were indebted to defendant corporation for an additional $80,000 worth of cattle feed. On April 30, 1976, plaintiffs signed a promissory note for $80,000 in favor of defendant corporation. That note was to be due two years from April 30, 1976, and was to bear interest at the rate of 11 percent per annum. Plaintiffs also executed a mortgage, second to another mortgage, in favor of defendant. The mortgage provided:
"[Plaintiffs mortgage and warrant certain real property to defendant] to secure the repayment of $110,000.00 * * * [namely,] $80,000.00 with interest at Eleven Percent (11%) [and] $30,000.00 with interest at Nine Percent (9%) (Given as collateral security for a note in this amount due Sanilac County Bank of which mortgagee is a guarantor).”
At the trial, plaintiff Paul Heberling stated that when he signed the mortgage his intent was to give William Palmer a total of $110,000 security for two feed bills.
The first mortgage was foreclosed and the property was sold at a sheriff’s sale. In order to obtain financing to redeem the property, it was necessary to remove defendant’s second mortgage. Plaintiffs paid defendant the principal balance due on the $80,000 and interest computed at 11 percent, but reserved the right to contest payment of the interest.
Plaintiffs sued defendant for the interest, claiming that the 11 percent interest rate on the promissory note was usurious, pursuant to MCL 438.31; MSA 19.15(1). Defendant claimed that the second mortgage secured an indebtedness of $110,000, namely the $80,000 note and $30,000 guarantee, and was therefore within the exception set out in MCL 438.31c(9); MSA 19.15(lc)(9).
At the close of proofs, plaintiffs moved for a directed verdict, arguing that the obligation secured by the mortgage was for $80,000. Further, plaintiffs argued that the $30,000 note was an obligation to Sanilac County Bank and could not be added to the $80,000 note to reach the $100,000 exemption. Plaintiffs’ motion was denied, and the jury found in favor of defendant.
MCL 438.31; MSA 19.15(1) sets out a 7 percent per annum ceiling on interest rates. Exceptions are set out in MCL 438.31c; MSA 19.15(lc). At the time of the transaction at issue, subsection (9) provided:
"(9) For the period ending on December 31, 1977, the parties to any note, bond, or other indebtedness of $100,000.00 or more, the bona fide primary security for which is a lien against real property other than a single family residence, or the parties to a land contract of such amount and nature, may agree in writing for the payment of any rate of interest.” 1973 PA 22.
We find as a matter of law that the mortgage at issue did not secure any bond, note, or indebtedness over $100,000 within the meaning of the statute. Further, plaintiffs’ obligation to defendant corporation on the $80,000 promissory note and conditional obligation to its president and sole shareholder on the $30,000 guarantee cannot be aggregated to reach the $100,000 exemption.
We reject defendant’s claim that the mortgage, in and of itself, represents "other indebtedness” within the meaning of subsection (9). A mere recital of the obligation to be secured by the mortgage, as in the present case, does not represent a covenant to pay and set the terms of the obligation. Further, in determining whether a particular transaction is usurious, the entire transaction must be considered. The substance of the transaction, rather than the form, governs. Otherwise, the effect of usurious transactions may be avoided by other paper or security for the indebtedness. See Continental National Bank v Fleming, 170 Mich 624, 643; 134 NW 656 (1912); Hillman’s v Em ’N Al’s 345 Mich 644, 652; 77 NW2d 96 (1956).
Assuming arguendo that obligations of indebtedness to one creditor can be aggregated to reach the $100,000 exemption, we find that the Legislature did not intend to include a conditional obligation to a guarantor within the meaning of "note, bond, or other indebtedness”. A careful reading of the statute reveals that the Legislature intended to exempt notes, bonds, or other instruments representing indebtedness similar to notes or bonds from the 7 percent ceiling, where the amount borrowed exceeds $100,000. A note or bond represents an unconditional obligation to pay a sum. certain. Plaintiffs were unconditionally obligated to pay the $30,000 note to Sanilac County Bank, not defendant. Their obligation to defendant corporation as guarantor of the $30,000 note would not arise until and unless defendant is held liable on the note.
Because the 11 percent interest paid by plaintiffs on the $80,000 promissory note exceeds the 7 percent ceiling set out in MCL 438.31c, we reverse. Due to the disposition of the first issue, we do not reach plaintiffs’ claim of instructional error.
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Per Curiam.
After a bench trial, defendant was convicted of assault with intent to commit murder, MCL 750.83; MSA 28.278, assault with intent to commit criminal sexual conduct, MCL 750.520g(1); MSA 28.788(7)(1), and third-degree criminal sexual conduct, MCL 750.520d(1); MSA 28.788(4)(1). Concurrent sentences were imposed, and defendant appeals by right.
Defendant’s convictions were the result of two lower court cases, involving two different complainants, which were consolidated for trial. Prior to trial, the prosecutor indicated that he intended to use each complainant as a similar acts witness in the trial of the other. Despite defendant’s objection that there were a number of dissimilarities and that the prejudice of such evidence would outweigh its probative value, the trial court ruled that the similar acts evidence was admissible and the cases were then joined for trial. Two intertwined issues which emerge from this decision concern: whether the joinder of the two cases into one trial was improper and whether the trial court erred in ruling the similar acts evidence admissible.
In general, offenses may be joined when they are "of the same or similar character” or "based on the same conduct or on a series of acts connected together or. constituting parts of a single scheme or plan”. People v Tobey, 401 Mich 141, 150-151; 257 NW2d 537 (1977). In Tobey, pp 151-152, the Michigan Supreme Court noted that:
"* * * 'same conduct’ refers to multiple offenses 'as where a defendant causes more than one death by reckless operation of a vehicle’. 'A series of acts connected together’ refers to multiple offenses committed 'to aid in accomplishing another, as with burglary and larceny or kidnapping and robbery’. 'A series of acts * * * constituting parts of a single scheme or plan’ refers to a situation 'where a cashier made a series of false entries and reports to the commissioner of banking, all of which were designed to conceal his thefts of money from the bank’ * * *”.
When the offenses in question do not meet the above standards and the only basis for joining them is that they "are of the same or similar character”, a defendant has a right to severance if he or she makes a timely motion for severance objecting to the joinder. Tobey, pp 151, 153.
We first note that the defendant did not object to the joinder in itself but rather objected only to the premise for the joinder, i.e., that the similar acts evidence was admissible. Although the joinder may have been improper under the Tobey criteria set forth above, no prejudicial error resulted if the other bad acts evidence was properly admissible because identical testimony would have been presented in both cases had they been separately tried. See People v Krist, 93 Mich App 425, 437; 287 NW2d 251 (1979). Therefore, the key question really is whether the trial court erred in its ruling on the similar acts evidence.
"Similar acts” evidence may be admitted under MRE 404(b), which allows evidence of other crimes, wrongs, or acts committed by the defendant to be admitted for limited, specified purposes. The Michigan Supreme Court, in People v Major, 407 Mich 394; 285 NW2d 660 (1979), stated the rationale and rule for the admissibility of evidence under MRE 404(b):
"The legitimacy of similar acts evidence generally is its tendency either to identify the defendant as the unknown actor in an alleged criminal act or to negate the suggestion, normally advanced by the defendant, that the act in question, although performed by him, was not criminal because it was unintended, accidental, a mistake or otherwise innocent.
"Similar acts evidence then, must qualify for admissibility on two levels: 1) It must be probative of one or more of the statutorily specified purposes, and 2) one or more of those purposes must be material, that is, a proposition 'in issue’ in the case.” Major, pp 398, 400.
In Major, the defendant appealed a conviction of criminal sexual conduct in the second degree. At trial, similar acts evidence concerning the defendant’s involvement in alleged sexual improprieties with young girls was admitted to show the defendant’s "motive” or "intent”, despite the fact that the defendant denied that the alleged act ever took place. Although acknowledging that the prior acts were similar to the act for which the defendant was on trial, the Michigan Supreme Court held that none of the purposes justifying admission of the similar acts evidence was at issue and thus the evidence was erroneously admitted. The Court reasoned that, in denying that the act ever occurred, the defendant was not trying to defend or explain behavior attributed to him, which would have placed his intent or motive in issue.
In the instant case, the defendant denied that either of the alleged acts took place, although he admitted being in the apartment of one of the complainants. A mere general denial by the defendant is insufficient to place matters such as motive, intent, identity, scheme, plan, preparation, or absence of mistake in issue. People v Arenda, 97 Mich App 678, 682; 296 NW2d 143 (1980), lv gtd 410 Mich 869 (1980); People v Bost, 107 Mich App 408, 410; 309 NW2d 620 (1981). As we stated in Bost, supra, when the defendant simply claims that the alleged act did not occur, we fail to see how evidence of other sexual misbehavior is material to a determination of whether the alleged act actually took place.
Although we conclude that the similar acts evidence was not admissible under MRE 404(b) due to its failure to meet the threshold requirement of materiality, our inquiry does not end here. There is a second possibility for admitting evidence of other bad acts. As this Court stated in People v Stoker, 103 Mich App 800, 807; 303 NW2d 900 (1981):
"An exception to this rule [excluding evidence of other bad acts done by the defendant], the res gestae exception, is set forth in People v Scott, 61 Mich App 91, 95; 232 NW2d 315 (1975):
" 'It is elementary that the acts, conduct and demeanor of a person charged with a crime at the time of, or shortly before or after the offense is claimed to have been committed, may be shown as a part of the res gestae. Proof of such acts is not rendered inadmissible by the fact that they may tend to show the commission of another crime.’ People v Savage, 225 Mich 84, 86; 195 NW 669 (1923).”
In the present case, each offense constitutes an "other bad act” under the res gestae exception. The offenses were interrelated, occurring within a short time span, and the evidence is relevant to show where the defendant was during the time involved, how his jacket was left in the first complainant’s apartment, how he returned to her apartment, and the circumstances of his arrest. We find no reversible error in admitting the similar acts evidence as part of the res gestae exception. We also note that the present case was a bench trial and that the court rendered extensive separate findings of fact in each case. The court specifically noted that the credibility of the wit nesses was the key factor and that, although there was corroborative similar acts testimony, it was not necessary. Therefore, we find that the defendant was not unduly prejudiced by the admittance of this evidence. See People v Michael Turner, 112 Mich App 381, 385-386; 316 NW2d 426 (1982).
Defendant also contends on appeal that his waiver of his right to a jury trial was invalid. On the day of trial, the court stated:
"The first item that I want to deal with this morning, Mr. Smith executed the last time he was before this court waivers of trial by jury.” (Emphasis added.)
The court then discussed a letter it had received from the defendant after the execution of those waivers contained in the court files. There is no entry in the file that these executed forms were actually filed by the clerk, but they were signed by the clerk.
This Court has reached different results when considering the issue of a defendant’s waiver of the right to a jury trial. Recent cases were summarized in People v Quick, 114 Mich App 532; 319 NW2d 362 (1982). The statute involved is MCL 763.3; MSA 28.856, which provides that, to be valid, the waiver must "be in writing signed by the defendant and filed in the case and made a part of the record” and "be made in open court”.
We first conclude that the jury waivers were made a part of the record since the executed waivers were signed by the clerk and were in fact in the lower court files. We also find that under the facts of this case, the "open court” requirement was met. This case is distinguishable from those wherein no in-court reference was made to the signed waiver. See, e.g., People v Corbin, 109 Mich App 120; 310 NW2d 917 (1981). The present case is more similar to Quick, supra, and People v Braxton, 91 Mich App 689; 283 NW2d 829 (1979). In those cases, it was indicated on the record that a waiver had been executed and it was held that the waivers were valid. Similarly, we find the court’s on-the-record statement sufficient to satisfy the "open court” requirement.
Finally, the defendant’s contention that the trial court impermissibly examined the preliminary examination transcript is without merit.
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Per Curiam.
Gwendolyn Marie Jones 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). She was sentenced to a term of from 2 to 15 years for armed robbery and 2 years for felony-firearm, the two sentences to run consecutively. Defendant appeals as of right.
Defendant was tried jointly with Donald Haines for their alleged participation, along with James Woodward and Raymond Grant, in the armed robbery of a Livonia Kentucky Fried Chicken store on May 26, 1980. All four individuals were arrested approximately five minutes after the robbery while riding together in an automobile approximately 2-1/2 miles from the scene. Codefendant Haines was driving, defendant Jones was riding in the front passenger seat, and Woodward and Grant were riding in the back seat. The police found a large sum of money taken from the Kentucky Fried Chicken store in Grant’s pocket, a box of chicken in the car, and the gun used by Grant to commit the robbery in defendant Jones’s waistband. The employees of the store testified at trial that Grant entered the store alone, robbed them at gunpoint, and left on foot with the money and a box of chicken. The employees never saw any of the other defendants or their automobile.
Charges against Woodward were dismissed at a preliminary examination because of insufficient evidence. Grant pled guilty the day before trial and ultimately testified for the prosecution. Grant testified that all four of the people in the automobile were in on the planning of the robbery and that they intended to split the proceeds four ways. This testimony contradicted Grant’s original statement to the police, which he admitted making, in which he stated that the other three people in the car knew nothing about his plans to commit the robbery.
Defendant testified that the first time she saw the gun was when Grant passed it to her from the back seat of the car and asked her to hold it as the police were pulling them over. She testified that she first learned that a robbery had occurred when the police stopped them and she heard a broadcast on the police radio. She testified, also, that Grant had asked them to stop at the Kentucky Fried Chicken store because he was hungry and that he went into the store alone. When he returned, he had only a box of chicken in his hands. She admitted having the gun when arrested, but denied any prior knowledge of, or having anything to do with, the robbery.
On appeal, defendant argues, first, that the trial court erred in allowing the prosecutor to cross-examine defendant, over objection, on her use of heroin and to introduce extrinsic evidence that the defendant had used heroin on one occasion a month or two before the robbery. The people argue the inquiry and subsequent extrinsic evidence were properly admitted ih order to supply a motive for the crime and to attack defendant’s credibility.
During the prosecutor’s closing arguments, he argued that defendant had a heroin habit, needed money to buy heroin, and, therefore, participated in the robbery. Evidence of whether a defendant is a heroin addict at or near the time of a charged theft offense may be relevant and admissible as proof of motive. See MRE 404(b); MCL 768.27; MSA 28.1050; People v Talaga, 37 Mich App 100, 103; 194 NW2d 462 (1971). Evidence of heroin use, however, has a strong prejudicial effect. Thus, the legal relevance of heroin addiction to motive for a theft offense is dependent on two factors: (1) that defendant was addicted at or near the time of the offense and, therefore, compelled to obtain the drug, and (2) that defendant lacks sufficient income from legal sources to sustain his or her Continuing need for heroin. See People v Walker, 86 Mich App 155, 159, fn 2; 272 NW2d 222 (1978). Without such a foundation, evidence of heroin use should be excluded from proof of motive, as its prejudicial effect substantially outweighs its probative value. See MRE 403; Walker, supra, 160.
In the instant case, the prosecution failed to prove either of these two foundational factors. On cross-examination, defendant testified she had not used heroin for over five years. Following defendant’s testimony, the prosecution called Anita Grant, who testified that she had seen defendant use heroin only once, one or two months before the robbery. The only evidence of defendant’s heroin use, the testimony of defendant and Ms. Grant, did not establish defendant was a heroin addict nor that she lacked funds from legal sources to sustain any habit she did have. Thus, cross-examination of defendant on her previous heroin use and the testimony of Ms. Grant were more prejudicial than probative of motive.
In addition, Ms. Grant’s testimony that she saw defendant use heroin once prior to the robbery was not admissible as evidence attacking the credibility of the defendant. Specific instances of conduct for the purpose of attacking credibility may not be proved by extrinsic evidence. MRE 608(b).
The prosecution’s cross-examination of defendant on her previous heroin use, the introduction of Ms. Grant’s specific act testimony, and the prosecution’s use of such as substantive evidence of defendant’s motive and guilt require reversal.
Our resolution of this initial issue makes full elaboration on the remaining issues unnecessary. We note, however, that error occurred when the trial court allowed the introduction of hearsay testimony, over objection, that the principal in the crime had stated during guilty plea proceedings that defendant had engaged with him in the planning of the armed robbery and that they were going to split up the proceeds. The testimony was hearsay and no exception was applicable. Thus, the testimony was not admissible. MRE 802.
Error also occurred when the prosecution not only questioned defendant concerning her failure to make a statement at the time of her arrest, other than that she "didn’t know anything about the robbery” but did possess the gun, but argued during closing argument that if defendant were telling the truth at trial she would have told her full story to the police at the time of her arrest. In People v Bobo, 390 Mich 355; 212 NW2d 190 (1973), the Supreme Court ruled that in Michigan the prosecution may not use a defendant’s silence against him. "The fact that a witness did not make a statement may be shown only to contradict his assertion that he did.” Bobo, supra, 359. Defendant’s failure to make a full statement at the time of her arrest was not inconsistent with any subsequent statements which she did make.
In addition, the trial court’s specific instructions on felony-firearm were incorrect. The court instructed the elements to be:
"First, that the defendant committed or attempted to commit the crime of robbery armed, or attempt robbery armed either as the perpetrator or as an aider and abettor as that has been outlined and described to you under Count I.
"Second, that at the time they committed or attempted to commit that crime, they were knowingly carrying a firearm or knowingly they had a firearm in their possession, or in one of their possessions.”
Defendant could not be found guilty of felony-firearm if she merely knew that the principal had a firearm in his possession at the time of the crime. Rather, "it must be established that the defendant procured, counselled, aided, or abetted and so as sisted in obtaining the proscribed possession, or in retaining such possession otherwise obtained”. People v Johnson, 411 Mich 50, 54; 303 NW2d 442 (1981).
Finally, we find no error in the trial court’s instructions to the jury after it announced that it was deadlocked.
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Per Curiam.
Defendant was convicted by a jury of operating a vehicle while under the influence of liquor (OUIL) and OUIL, third offense, MCL 257.625(1) and (6); MSA 9.2325(1) and (6). Defendant was sentenced to one year in jail with work release, five years probation and a $500 fine.
Officers Kenneth Schroeder and Arthur De-Vriendt of the Lapeer County Sheriff’s Department stopped defendant after observing him drive in the wrong traffic lane on Davison Road in the City of Lapeer. DeVriendt testified that he noticed a strong odor of liquor on defendant and that defendant fumbled to produce his license. De-Vriendt asked defendant to get out of the car. Defendant attempted to reach for the door handle four times before the officer opened the door and helped defendant exit from the car. The officer also testified that defendant staggered as he walked toward the rear of the car. DeVriendt inquired as to how much education defendant had completed and defendant replied that he reached the sixth grade. The officer asked him if he knew his alphabet or if he could count up to ten and defendant replied, "no”. When defendant tried to place his feet together and raise one foot, he almost fell to the pavement. At that point, the officers arrested defendant for OUIL and placed him in the rear seat of the patrol car.
Officer Schroeder testified that once defendant was in the car, the officer read him the advice of chemical rights from a form at 5:30 a.m. Defendant agreed to take the Breathalyzer test and was taken to the Lapeer County Sheriffs Department where Officer James McClain administered the first Breathalyzer test at 5:53 a.m. and the second one at 6:03 a.m. The results of both tests showed a blood alcohol level of .18%. The parties agree that the officers never read Miranda warnings to defendant. The prosecutor charged defendant with OUIL, third offense, or, in the alternative, driving with a blood alcohol content over .10%, third offense. The complaint alleged that the prior convictions occurred on August 9, 1982, and May 10, 1983.
Defendant appeals and raises seven issues. We affirm.
I
Defendant argues that statements made by him and the Breathalyzer results were inadmissible because the police did not advise him of his Miranda rights. Defendant, however, does not specify which statements were illegally elicited. Apparently, defendant is referring to his statements regarding his sixth-grade education and admission that he could not recite the alphabet or count up to ten. Roadside questioning by police officers for the purpose of determining whether a motorist is intoxicated does not constitute custodial interrogation and, therefore, Miranda rights do not attach. Berkemer v McCarty, 468 US —; 104 S Ct 3138; 82 L Ed 2d 317 (1984); People v Chinn, 141 Mich App 92; 366 NW2d 83 (1985). The police in the instant case administered the usual field sobriety tests to determine if defendant was extremely tired or intoxicated. Officer DeVriendt inquired into defendant’s level of education to decide if he had the intelligence to recite the alphabet. Since defendant did not graduate from high school, the officer did not have him recite the alphabet. The police officers engaged in acceptable roadside questioning, not custodial interrogation. Hence, defendant’s statements were admissible.
Michigan courts have long recognized that the administering of a Breathalyzer test does not violate the privilege against self-incrimination. People v Gebarowski, 47 Mich App 379; 209 NW2d 543 (1973). This recognition is based on the rationale that the results of the test are derived from chemical analysis, not from the defendant’s testimonial capacities. Gebarowski, supra, pp 383-384. Moreover, a motorist implicity consents to give a breath sample pursuant to the OUIL statute. Wolney v Secretary of State, 77 Mich App 61; 257 NW2d 754 (1977). In short, the police in the instant case did not seek to compel defendant to give testimonial evidence and, therefore, respected the privilege against self-incrimination. Nor does the Sixth Amendment right to counsel attach prior to the taking of the Breathalyzer test since the test is scientific and the delay is obtaining counsel would interfere with the accurate appraisal of the alcohol content. Holmberg v 54-A Judicial District Judge, 60 Mich App 757; 231 NW2d 543 (1975).
Defendant also argues that he was entitled to Miranda warnings at the time of his arrest on misdemeanor charges because he was later charged with a felony. The premise of this contention is that felons have Miranda rights while misdemeanants do not. No rule of law supports this distinction, as both groups are entitled to Miranda warnings. Irrespective of the elevation of the misdemeanor to a felony, defendant was not entitled to Miranda warnings prior to the sobriety and Breathalyzer tests.
II
Defendant next argues that he cannot be convicted as a third-time offender based on a prior guilty plea as the plea, according to defendant, was improperly taken. Defendant challenges the validity of his 1982 plea-based conviction for OUIL, alleging that the district court judge at that plea hearing did not advise him of his right to confrontation, right to counsel, and his privilege against self-incrimination. DCR 785.4(e), now MCR 6.201(D)(5), sets forth the requirements connected with accepting a guilty plea in district court:
"Prior to accepting a plea of guilty or nolo contendere, the court shall
"(1) advise the defendant that if his plea is accepted, he will not have a trial of any kind, so he gives up the rights he would have at a trial;
"(2) determine that the plea is voluntary; and
"(3) establish support for a finding that defendant is guilty of the offense charged or the offense to which the defendant is pleading.
"The court may not accept the plea unless it is convinced that the plea is understanding, voluntary, and accurate.”
Our review of this case indicates that the district judge fully complied with this rule at the 1982 plea hearing.
Although the plea hearing procedures may not have complied with the more stringent requirements of GCR 1963, 785.7, now MCR 6.101(F), defendant’s 1982 plea was not subject to that rule. GCR 1963, 785.10, now MCR 6.101(1).
The Supreme Court obviously intended that different rules be applied in district court and in circuit court for offenses punishable by less than six months in jail than for felony pleas in circuit court. That this distinction was intended is reflected by the fact that the Supreme Court repromulgated these rules in the 1985 Michigan Court Rules without substantive change. It would be incongruous for us to conclude that a guilty plea which complied with the applicable court rules cannot be used to enhance the sentence for a subsequent conviction. We hold that where a guilty plea complies with the applicable rules for accepting that plea, and is otherwise valid, it may be used as the basis for enhancing subsequent convictions.
III
Defendant asserts that the trial court erred in refusing to reread the mandatory composite jury instructions in the second phase of his bifurcated trial. At the second phase of the trial, the trial court refused to reread those instructions which had been read during the first phase.
No case law directly addresses this issue. However, we conclude that it is not necessary in all cases for instructions which were read during the first phase of a bifurcated trial to be repeated during the second phase. Rather, we will look to the instructions given during both phases to determine if the jury was properly instructed. We do caution, however, that where a significant period of time has passed since the first set of instructions was read, it may be necessary to repeat the instructions. We also urge the trial courts to repeat, or draw particular attention to, the more fundamental instructions, such as the presumption of innocence and burden of proof.
In the instant case, the judge had read the composite instructions three hours before reading the instructions in the second phase of the trial. The judge reminded the jury that the first instructions applied in the second phase of trial. He specifically mentioned the applicability of the presumption of innocence, burden of proof, right to remain silent, and duty to weigh the evidence. Under these circumstances, the trial judge properly instructed the jury in the second phase of trial.
We have considered defendant’s remaining four issues and conclude that they merit neither reversal nor discussion.
Affirmed.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
The first phase of the trial determined defendant’s guilt on the instant offense, the second phase determined his status as a habitual offender. | [
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Per Curiam.
Defendants appeal as of right from the trial court’s judgment entered in this action to quiet title, which affected mineral rights (oil and gas) in land located in Kalkaska County, Michigan. The issue we are called upon to decide is whether or not defendants’ activities near or on the property served to hold the lease beyond its primary term in accordance with conditions specified in the lease and its amendments. If the lease is found to be extended, then defendants have an interest in the land which would preclude the trial court’s decision and require reversal by this Court. A map of the area is attached (see Appendices A & B). The section numbers 13, 18, 24, etc., are on the map. Areas A, B, C, etc., were drawn in by the trial court.
A suit to quiet title is equitable in nature and thus subject to de novo review. We give great weight to the findings of fact made by the trial court, and will not disturb them unless we are convicted that we would have reached a different result had we been in the lower court’s position. Connelly v Buckingham, 136 Mich App 462, 467; 357 NW2d 70 (1984); Geneja v Ritter, 132 Mich App 206, 209-210; 347 NW2d 207 (1984). The relevant findings in this case are fairly complex and will be discussed at some length here.
On October 24, 1964, C. J. Simpson obtained a number of oil and gas leases from Old Kent Bank and Trust Company, Trustees, covering mineral rights in several townships in Kalkaska County. A separate lease was obtained for each township. The lessors therein owned and leased the mineral rights only, at that time. The property which is the subject matter of the instant litigation is in Coldsprings Township.
In 1965, C. J. Simpson assigned the leases to defendant Gulf Oil Corporation, and Gulf Oil subsequently assigned a one-half interest therein to defendant Amoco Production Company. Shortly after such assignment, on March 17, 1965, the Old Kent Bank and Trust Company conveyed and quitclaimed to C. J. Simpson all of the oil, gas and mineral rights in the subject property, subject to the above-described lease and amendments thereto. The Old Kent Bank reserved unto itself, out of such conveyance, an undivided one-sixteenth interest in and to the gross sales proceeds from all oil, gas, casinghead gas, coal and other minerals produced, saved or marketed from any of the lands sold. Thereafter, C. J. Simpson conveyed his interest received by quitclaim, subject to the 1964 lease as amended, resulting in the following present ownership of the oil, gas and mineral rights: Home-Stake Royalty Corporation received a three-eighths interest; Lincoln Rock Corporation received a one-twelfth interest; Emma B. Simpson, Trustee, received a one-fourth interest; and Thomas E. Matson received a one-sixth interest.
The primary term of the lease was for ten years, with the lease being extended beyond such primary term "as long thereafter as oil, condensate, gas * * * is produced or there is a shut-in gas well on the premises, or the premises are being used for gas or liquid storage”. This is known as an "habendum clause”. The clause further provided, "[i]n order for this lease to remain in effect solely by reason of a shut-in gas well either during or after the primary term, delay rental payments must be made as provided in Paragraph 5”.
Paragraphs 17, 18, and 19 were added by the parties and typewritten therein. The lease was otherwise a form lease with its provisions preprinted. Paragraph 19 limited the premises to which the lease could be extended beyond the primary term to "that portion of the leased premises lying and being situated within the governmental section in which the well is drilled”. The pooling clause contained in the printed form, however, provided that a well on any portion of a pooled unit, which included any part of the leased premises, would be considered to be on the leased premises for purposes of the lease.
An amendment to the lease was executed in 1965. The amendment changed the following: the primary term from 10 to 12 years, making the lease expire on October 24, 1976; the delay rental payment for a shut-in gas well was made the same as for the storage of gases or liquids; the delay rental payment provision in Paragraph 5 was deleted in its entirety and the lease was made a paid-up lease. In 1976, an amendment was executed extending the primary term for an additional two years, to a total of 14 years from October 24, 1964. The amendment deleted Paragraph 19 of the original lease and inserted the following:
"19. This lease shall remain in force at the end of the primary term as to all that part of the premises within a governmental section on which operations for drilling of a well or wells have commenced, there is a well currently producing, or capable thereof, and as to lands included in any unit which are in an adjacent governmental section. It is expressly understood that the lease shall not extend beyond the primary term as contemplated herein as to those lands located in a governmen tal section on which a well is not producing or capable thereof, or is not being drilled, or has not been committed to a unit. The word 'unit’ as used herein is defined as including 'drilling units’, 'voluntary pooled units’, 'compulsory pooled units’, 'production units’, and units created by state spacing orders.”
Paragraph 4 of the amendment reads:
"4. If at any time after the expiration of the primary term of this lease, there is any gas well on lands covered hereby, which is capable of producing in paying quantities, but is shut-in for a period of 90 days, either before or after production therefrom, and the production is not being sold or used and such leased acreage is not being held by any other terms or provisions hereof, Lessee agrees to pay or tender to the mineral owners entitled to receive same, a royalty, which shall be a sum equal to One Dollar ($1.00) per acre for all that part of the premises included in the unit of said shut-in well. Such payment shall be made on or before 90 days after expiration of the 90 days from the date the well is shut in. This shut-in royalty shall have the effect of holding the lease as to said lands for one year from the date the well is shut in.”
Paragraph 5 of the amendment provided that if, after the expiration of the primary term, production ceased, the lease would not terminate if the lessee resumed operations for the drilling of a well for restoration of production within 120 days from cessation, and the lease would continue in force and effect during the continuation of the operations and as long thereafter as there was a well producing, or capable or producing, from the leased premises.
Finally, Paragraph 6 of the amendment provided that the 1964 lease, as amended by the 1965 amendment, was thereby ratified and confirmed.
In May of 1979, the defendants obtained an amendment extension to all of the properties in Section 13, except the 80 acres contained in the Coldsprings 12 field unit (Area A) and except the 120 acres contained in the Fawcett 2-24 unit (Area C). This amendment extended the primary term to 17 years, resulting in an expiration date of the primary term on October 24, 1981, as to the premises covered by the amendment. The amendment ratified and reaffirmed the original lease and previous amendments.
The Fawcett 2-24 well (in Area D) was drilled in Section 24 in 1977, and was producing prior to October 24, 1978, and at all times thereafter. As indicated, the well was physically located in Section 24. One hundred and twenty acres of the 240-acre production unit for the well was located in Section 13. This 120 acres within the production unit in Section 13 was held by the terms of Paragraph 19 of the 1976 amendment beyond the primary term of the lease up to today’s date and is not in contest.
The drilling of the West Big Twin Lake 5-18 well (Area B) was commenced on September 24, 1978, and was successfully completed as a gas well in November of 1978. The well did not begin producing and marketing gas until October 4, 1980. The surface location of this well was located in the Northeast 1/4 of Section 13 and the bottom hole location was in Section 18, Blue Lake Township.
The "thereafter” or habendum clause contained in the Old Kent Bank lease provides that the lease remains in effect as long as 1) oil, gas, or the like is produced, 2) there is a shut-in gas well on the premises, or 3) the premises are being used for gas or liquid storage. The clause contains three distinct concepts which determine whether or not the lease is extended. First is a description which tells how the lease is may be held. Second is the time frame during which the activity must be accomplished or on-going. Third is a description of which lands in Section 13 are held by satisfaction of these conditions. Each of these elements must be met before the lease is extended.
Defendants have raised several arguments as to why the lease was extended beyond its primary term. These will be addressed seriatim.
Amoco’s Completion of 1A-13 Well in 1976
The 1A-13 well (Area A) was drilled by Amoco in 1976. The well was never hooked to a pipeline, but was capped. It was sold to ANR Storage in July, 1979. Although the habendum provision permitted extension of the lease for a shut-in gas well on the premises, the shut-in gas well clause of the February 27, 1976, lease amendment required defendants to tender payment of a royalty within 90 days of the date the well was shut-in. Since the 1A-13 well was shut-in during December, 1976, defendants were required to tender payment no later than March, 1977. Defendants did not tender payment until October 24, 1978, near the expiration of the primary term. Thus, because of defendants’ failure to meet the prerequisite of a timely payment, the shut-in well did not serve to extend the lease beyond its primary term.
Defendants also claim that "constructive production” occurred by payment of the shut-in royalty. However the definition of constructive production requires timely payment in accordance with explicit lease provisions. See 8 Williams & Meyers, Oil and Gas Law, Manual of Oil and Gas Terms (1984), p 161. As previously noted, the payment was not timely and thus no constructive production occurred.
ANR’s Gas Storage in July, 1979
On July 23, 1979, the United States Department of Energy’s Federal Energy Regulatory Commission (FERC) issued a certificate to ANR Storage permitting gas storage for the 1A-13 well. Defendants contend that this activity constituted "gas and liquid storage” within the meaning of the original lease sufficient to hold the lease. There are no reported cases in Michigan which construe the term "storage”.
Stored gas is defined as "[g]as produced from one formation and injected into another depleted formation near the market for purposes of temporary storage”. Williams & Meyers, supra, p 851. Subsurface gas storage is the "[u]se of a depleted formation or an aquifer near a market to store gas brought in from another field”. Williams & Meyers, supra, p 364.
In light of the meaning given to the term "storage” by the oil and gas industry, we find that the term contemplates affirmative action. Defendants would equate inaction (their decision to leave gas in place) with storage. We are unwilling to adopt such a broad construction and, therefore, conclude that the actions of defendants and ANR did not constitute storage.
1A-13 Well Production
Defendants contend that the negotiations for and the subsequent sale of the 1A-13 well to ANR Storage constituted production which held the amended lease beyond the primary term. We disagree. In a "thereafter” clause, the term "production” is construed to mean production in paying quantities sufficient to yield a return in excess of operating costs. Michigan Wisconsin Pipeline Co v Michigan National Bank, 118 Mich App 74, 82; 324 NW2d 541 (1982). Whether a lessee has produced oil or gas within the primary term so as to hold the lease is a question of fact to be determined in each case. 2 Summers, Oil and Gas (1959), p 216.
Defendants rely on Michigan Wisconsin Pipeline, supra, wherein this Court found that production was obtained by leaving the gas in place. The lower court distinguished Michigan Wisconsin Pipeline on its facts and we agree with that analysis. The gas well in Michigan Wisconsin Pipeline had been producing but the operators severely cut back production to only the amount necessary to operate heaters at their compressor station and provide the lessors with free domestic gas for their dwellings. In addition, the lessee was faced with an impending condemnation action and this Court found it was reasonable to cease marketing and wait for the award. The instant case is distinguishable because production had never occurred at the 1A-13 well.
Estoppel
Defendants argue that plaintiffs should be es-topped from claiming termination of the amended lease because they accepted a shut-in royalty payment for the 1A-13 well. An equitable estoppel arises where: (1) a party by representations, admissions or silence induces another party to believe facts; (2) the other party detrimentally relies and acts on this belief; and (3) the other party will be prejudiced if the first party is allowed to deny the existence of the facts. Cook v Grand River Hydroelectric Power Co, Inc, 131 Mich App 821, 828; 346 NW2d 881 (1984).
On the facts of this case, we find no detrimental reliance on the part of defendants. It appears that any action or inaction taken by defendants proceeded from defendants’ independent and unilateral evaluation of the lease terms and the development activity required to sustain and hold the lease. As the trial court noted, defendants had the highest degree of expertise and sophistication regarding the interpretation of an oil and gas lease.
West Big Twin Lake 5-18 Well
The 5-18 well (Area B) was drilled September 24, 1978. Production and marketing of the gas from the well began October 4, 1980, within the primary term of the amended lease. The parties agree that the bottom hole, which determines the location of the well, was in Section 18. Still, defendants argue that the 5-18 well does not lie entirely in Section 18 because the section line has meandered along the lakeshore and the lake is therefore neither in Section 18 nor in Section 13.
The trial court found that the governmental survey, submitted into evidence by defendants (but not made available to this Court), appeared to establish that the section line between Sections 13 and 18 crossed Big Twin Lake and constituted a section line, contrary to defendant’s claim. We will defer to this finding of fact by the trial court because of its superior position to evaluate the evidence. See Connelly v Buckingham, supra.
Lease Pooling Clause and Spacing Unit Boundary
Defendants contend that the drilling and production of wells located in Section 24 (Area D), located within a spacing unit which contains Section 13 land (Area C), was sufficient to hold the amended lease by virtue of the oil and gas lease pooling clause. However, the express language of Paragraph 19 of the 1976 amendment does not support this contention because it states that "the lease shall not extend beyond the primary term * * * as to those lands located in a governmental section on which a well is not producing or capable thereof, or is not being drilled, or has not been committed to a unit”. Thus, the Section 13 lands located adjacent to the Section 24 Fawcett spacing unit, not having been committed to a drilling unit, were not held by the lease.
Defendants also contend that the fact that the Supervisor of Wells issued an order establishing the boundaries of the Fawcett spacing unit which contains 120 acres from Section 24 and 120 acres from Section 13 requires extension of the lease to all Section 13 lands. While the issue has not been directly addressed in Michigan, our Supreme Court in Manufacturers National Bank of Detroit v Dep’t of Natural Resources, 420 Mich 128; 362 NW2d 572 (1984), appeared to emphasize that private contract, and not the statute granting authority to the Supervisor of Wells, governs the manner in which production from a well is distributed. 420 Mich 142. In this case, the terms of pooling and allocation were governed by contract.
Conclusion
Our resolution of the above issues makes it unnecessary to address defendants’ last issue, trespass.
Affirmed.
Appendix A
Appendix B
MAP INFORMATION
The appended map represents the well locations and units important to the instant litigation.
"A” designates: 80 acres within Section 13 of the 120 acre "Coldsprings 12” unit containing:
(1) the Simpson-State-Coldsprings 1A-13 drilled fall of 1976 and completed and shut in in December.
(2) the 12-10A storage well drilled in April of 1980 and gas first injected in June of 1980.
"B” designates: 80 acres outside of Section 13 contained with the West Big Twin Lake unit containing:
(1) the West Big Twin Lake 5-18 well drilled September, 1978, and completed in November.
"C” designates: the 120 acres within Section 13, within the Fawcett 2-24 production unit containing:
(1) no wells.
"D” designates: the 120 acres within Section 24 also within the Fawcett 2-24 production unit containing:
(1) the Fawcett 2-24 well drilled in 1977 and produced thereafter.
"E” designates: the 120 acres in the West Bay Little Twin Lake production unit all within Section 13 containing:
(1) the West Bay Little Twin Lake well drilled October 1, 1982. | [
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R. B. Burns, J.
The trial court granted accelerated judgment in favor of defendant pursuant to GCR 1963, 116.1(5), now MCR 2.116(C)(7). Plaintiff appeals and we affirm.
Plaintiff’s decedent was riding his bicycle on West Mansion Street in Marshall, Michigan, when he collided with defendant’s bicycle. Decedent died in Community Hospital approximately 11 hours after he was admitted, allegedly from the head injuries he received in the collision.
Plaintiff Jon Warren filed suit as personal representative of the estate against defendant on October 11, 1983. In fact, plaintiff had not filed the appropriate papers in probate court and was not appointed the decedent’s personal representative until October 20, 1983. Defendant brought a motion for accelerated judgment on the ground that plaintiff was not the decedent’s personal representative and therefore plaintiff could not properly bring a wrongful death action. Moreover, defendant argued that the statute of limitations barred plaintiff’s suit.
The trial court granted defendant’s motion for the reason that the wrongful death action was not brought in the name of the personal representative. The court also found that the statute of limitations barred plaintiff’s claim.
We first consider whether the trial court erred in concluding that plaintiff did not have the legal capacity to bring this action at the time the complaint was filed. MCL 600.2922(2); MSA 27A.2922(2) provides that every wrongful death or survival action "shall be brought by, and in the names of, the personal representatives of such deceased person”. In Maiuri v Sinacola Construction Co, 382 Mich 391; 170 NW2d 27 (1969), the parents of the decedent filed suit in their individual capacities and the Court held that the language of the statute is mandatory and that the plaintiffs were improper parties.
Hence, plaintiff in the instant case must have been the personal representative of the decedent in order to maintain a wrongful death action. Plaintiff filed suit on October 11, 1983. However, plaintiff was not appointed the decedent’s personal representative until October 20, 1983. Thus, plain tiff could not have properly filed suit on October 11.
Plaintiff, however, argues that, when he became the personal representative of the decedent, his appointment should have related back to the date on which he filed suit. Defendant, on the other hand, asserts that plaintiff is not entitled to the benefit of the relation-back doctrine.
This Court has decided the issue of the applicability of the relation-back doctrine in two cases, Castle v Lockwood-MacDonald Hospital, 40 Mich App 597; 199 NW2d 252 (1972), and Fisher v Volkswagenwerk Aktiengesellschaft, 115 Mich App 781; 321 NW2d 814 (1982). In Castle, the decedent’s wife applied for appointment as the decedent’s personal representative for the specific purpose of pursuing a wrongful death action, upon which the period of limitation would run on May 17, 1970. The plaintiff was appointed personal representative on May 14, 1970, though no order of appointment was signed until June 11, 1970. The plaintiff filed the wrongful death action on May 15. Subsequently, on June 11, the probate court entered an order nunc pro tunc effective as of May 14 appointing plaintiff special administrator.
This Court held that the plaintiff’s appointment related back to the commencement of the wrongful death action, concluding that the relation-back doctrine should apply when the administratrix acted in good faith and had some reasonable basis for believing that she had been duly appointed. Castle, supra, p 604. Because the decedent’s wife believed that she had the capacity to sue and acted in good faith, relying upon the notation in her application, the nunc pro tunc order would be allowed to relate back to the date on which she brought suit. Castle, supra, pp 606-607.
This Court reached a different conclusion on the relation-back doctrine in Fisher, supra. In Fisher, the plaintiffs were appointed administrators of their deceased parents’ estates. The parents died on December 9, 1976, and the estates were closed on June 26, 1978, and March 1, 1978, respectively. Plaintiffs brought a wrongful death suit as administrators on December 9, 1979. Thereafter, the plaintiffs went to probate court and sought to reopen their parents’ estates. Fisher, supra, p 783. This Court found that the plaintiffs could not obtain the benefit of the relation-back doctrine, holding that:
"where the plaintiffs misrepresented their capacity to sue under the wrongful death act at the time when the suit was filed, the subsequent reopening of the decedent’s estate after the period of limitation had expired did not relate back to the filing of this lawsuit. The action is barred by the three-year statute of limitations.” Fisher, supra, p 786.
The case at bar is closer to Fisher than Castle. In this case, plaintiff was an attorney who should have known that he was not able to bring suit until he was appointed personal representative of the decedent. Moreover, plaintiff did not act in good faith because he could not have reasonably believed that he had been appointed the decedent’s personal representative at the time he brought the action. This is evidenced by the fact that he neither secured nor filed the proper forms in the probate court as of the date he filed the present action.
Nonetheless, plaintiff argues that he sould have been allowed to amend his complaint on the authority of GCR 1963, 118.1, now MCR 2.188(A), because it would serve no useful purpose to have him refile his action. If plaintiff were allowed to amend his complaint, that amendment would relate back to the date on which his original complaint was filed. GCR 1963, 118.4. In interpreting GCR 1963,118.4, this Court has held:
"The test under subrule 118.4 as set forth in LaBar [v Cooper, 376 Mich 401; 137 NW2d 136 (1965)], supra, makes it clear that whether or not a new cause of action is stated in the amendment is no longer the question, but rather it is whether the amendment arises out of the conduct, transaction, or occurrence alleged in the original pleading sought to be amended. Under that interpretation of the new court rule, the Court reaches the same result that many courts in other jurisdictions have reached in the past when a plaintiff who sued individually in a wrongful death action sought to amend his pleadings after the running of the statute of limitations so as to sue in his representative capacity. This Court does, however, approve the limitation appearing in 63 Harvard Law Review 1177, 1239, cited in Russell [v New Amsterdam Casualty Co, 303 F2d 674 (CA 8, 1962)], supra:
" 'However, * * * where the plaintiff sues in the wrong capacity some courts have experienced considerable difficulty in avoiding the objection that the original action was void, and have thus disallowed the change of the party plaintiff. Nevertheless, the new plaintiff is today usually allowed to take advantage of the former action if the original plaintiff had, in any capacity, either before or after the commencement of suit, an interest in the subject matter of the controversy Doan v Chesapeake & Ohio R Co, 18 Mich App 271, 279; 171 NW2d 27 (1969) (emphasis supplied by Doan).
Assuming that Doan survives Mauri, plaintiff would not receive the benefit of Doan because he had no interest in the suit before he became the decedent’s personal representative.
We conclude that defendant was entitled to accelerated judgment for the reason that plaintiff lacked the legal capacity to sue. GCR 1963, 116.1(3), now MCR 2.116(C)(5).
Although our conclusion on the capacity to sue issue disposes of this case, we choose to address the statute of limitations issue since it appears that that issue will resurface in plaintiff’s future litigation against defendant.
Where a tort victim dies as a result of injuries sustained from the tortious conduct, two different causes of action may be brought. If the victim died instantaneously, a wrongful death action may be commenced. If the victim did not die instantaneously, a survival action must be brought. However, both actions must be brought under the wrongful death act, MCL 600.2922; MSA 27A.2922. Hawkins v Regional Medical Laboratories, PC, 415 Mich 420; 329 NW2d 729 (1982). That is, survival actions are now incorporated into the wrongful death act. Hawkins, supra, p 432.
The distinction between the two types of actions becomes particularly important when considering the statute of limitations. In either action, the three-year period of limitations is applicable under MCL 600.5805(8); MSA 27A.5805(8). However, as noted by the Hawkins Court, survival actions survive by law:
"As indicated above, although the post-1939 death act encompasses a class of actions formerly brought under the survival act, we are not persuaded that the essential character of those actions has changed. Any time wrongful conduct results in noninstantaneous death, the claim prosecuted by an appropriate representative is a survival action enhanced by the broader measure of damages in the current death act. It survives by law the decedent’s death pursuant to MCL 600.2921; MSA 27A.2921.” Hawkins, supra, p 438.
Since a survival action survives by law, the tolling provisions of MCL 600.5852; MSA 27A.5852 are applicable. That statute provides in pertinent part as follows:
"If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by * * * the executor or administrator of the deceased person * * * at any time within 2 years after letters testamentary or letters of administration are granted, although the period of limitations has run, subject to the limitations provided in section 20 of chapter 8 of Act No. 288 of the Public Acts of 1939, being section 708.20 of the Compiled Laws of 1948. But no executor or administrator shall bring an action under this provision unless he commences it within 3 years after the period of limitations has run.”
Because plaintiffs refiling of this action occurred more than three years after the accident and the decedent’s death on October 18, 1980, the statute of limitations would bar the second suit unless saved by this tolling provision. It is clear that the case at bar presents a survival action rather than a wrongful death action since the decedent lived for 11 hours after his injury. See Ortiz v Ferris, 128 Mich App 776; 341 NW2d 215 (1983).
The trial court erred when it distinguished Hawkins, supra, from the present case based on the amount of time that had passed between the decedent’s injury and the decedent’s death. The trial court found that a death occurring eleven hours after an accident is distinguishable from a death occurring nine months after an incorrect diagno sis. The determining factor is not how long the decedent lived after his injuries, hut whether death was instantaneous. Where, as here, the decedent lived for 11 hours, it cannot be concluded that death was instantaneous. Thus, the action was a survival action and survived by law.
Accordingly, plaintiff may bring his action within two years of receiving his letters testamentary. MCL 600.5852; MSA 27A.5852. Since plaintiff received his letters testamentary on October 20, 1983, he had until October 20, 1985, to bring an action. Accordingly, the trial court erred in concluding that plaintiff’s suit was barred by the statute of limitations.
One final matter remains. In its written opinion, the trial court indicated that defendant would be entitled to accelerated judgment under both the grounds of plaintiff’s lack of legal capacity to sue and because the period of limitation had run. However, the trial court’s order only granted accelerated judgment based upon the statute of limitations. GCR 1963, 116.1(5), now MCR 2.116(C)(7). As we concluded, above, defendant was not entitled to accelerated judgment based upon the statute of limitations. However, since the trial court reached the right result, albeit for the wrong reason, we will affirm. Gilbert v Grand Trunk W R Co, 95 Mich App 308; 290 NW2d 426 (1980).
Our conclusion on the statute of limitations issue renders it unnecessary to consider plaintiff’s argument that the period of limitation was tolled under the provisions of MCL 600.5853; MSA 27A.5853.
Affirmed. Costs to defendant.
Plaintiff apparently refiled his action on May 23, 1985.
This fact creates a certain amount of confusion in terminology since survival actions are technically wrongful death actions and are referred to as such. However, for the sake of clarity, in this portion of the opinion, we shall use the term "wrongful death action” to refer to cases where the victim died instantaneously and the term "survival action” where the victim died subsequent to his injuries. For a more thorough discussion of the history of wrongful death and survival actions, and their merger into the wrongful death act in 1939, see Hawkins, supra. | [
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On Rehearing
Before: Cynar, P.J., and M. J. Kelly and R. L. Evans, JJ.
Cynar, P.J.
Defendant Lansing General Hospital applied for a rehearing, which was granted. Upon reconsideration of our decision in Theophelis v Lansing General Hospital, 141 Mich App 199; 366 NW2d 249 (1985), we vacate that decision and set aside the jury verdict against defendant hospital. Our decision is based on the fact that the trial court erroneously submitted to the jury the question of defendant hospital’s vicarious liability for the negligent acts of Nurse Palmer and Dr. Gilmore. The valid release of Nurse Palmer and Dr. Gilmore released the hospital from any liability based on a theory of respondeat superior. Drinkard v William J Pulte, Inc, 48 Mich App 67, 76-78; 210 NW2d 137 (1973). The language of the two releases, however, did not protect the hospital from liability for its independent and concurrent acts of negligence. Drinkard, supra; Willis v Total Health Care of Detroit, 125 Mich App 612, 617; 337 NW2d 20 (1983).
Defendant hospital’s brief on appeal states that there was never a request to strike from the complaint the allegations of independent acts of negligence committed by the hospital. Defense counsel asserted for the first time in their brief in support of motion for rehearing that, at the close of plaintiffs’ proofs, the trial court granted the hospital a directed verdict on all but one of plaintiffs’ independent claims against the hospital. Defense counsel’s failure to accurately describe, in their brief on appeal, the status of plaintiffs’ independent claims against the hospital obstructed our initial review of this case.
Our reconsideration of the record indicates that the one independent allegation against the hospital which was not stricken from plaintiffs’ complaint was the claim that the hospital negligently failed to "ascertain that in all pediatric cases a precordial stethoscope shall be used”. The trial court found that defendant hospital was not entitled to a directed verdict on this claim because there was competent evidence and/or expert testimony to support the allegation.
Viewing the evidence in a light most favorable to plaintiffs, granting them every reasonable inference and resolving any conflict in the evidence in their favor, Rushing v Wayne County, 138 Mich App 121; 358 NW2d 904 (1984), we find that there was no competent evidence or expert testimony concerning the hospital’s breach of the standard of care as it relates to the use of precordial stethoscopes in pediatric cases. We acknowledge that plaintiffs’ expert, Dr. Zsigmond, testified that failure to use a stethoscope, in this case, was a "very severe major deviation from the good standard of practice”. However, the record indicates that when plaintiffs’ counsel asked Dr. Zsigmond his opinion on this matter, plaintiffs’ counsel was speaking specifically in terms of Nurse Palmer. Dr. Zsigmond did not express an opinion on whether the hospital had breached any standard of care by failing to ascertain that a precordial stethoscope should be used in all pediatric surgical cases. Dr. Smith, the hospital’s expert, stated that in his opinion the hospital complied with the applicable standards in the management of the operating room procedures in this case. Hence, there was insufficient evidence presented at trial to submit to the jury the question of the hospital’s breach of the standard of care regarding the use of precordial stethoscopes.
We disagree with the dissenting opinion. Our review of the record convinces us that the evidence introduced at trial does not support the jury verdict.
This Court’s prior opinion in this case is vacated, the jury verdict is set aside and the case remanded for new trial.
R. L. Evans, J., concurred. | [
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Per Curiam.
Edmund Kull was married to plaintiff and had two minor children, born in 1968 and 1971. On January 28, 1973, Kull died due to injuries sustained in an automobile accident. Eight years later, plaintiff petitioned to be appointed personal representative of her husband’s estate. She was appointed on May 27, 1981. On July 6, 1981, plaintiff commenced an action for wrongful death, pursuant to MCL 600.2922; MSA 27A.2922, alleging that her husband’s death occurred as a result of defendant’s negligence. Defendant moved for accelerated judgment under GCR 1963, 116.1(5), arguing that the applicable three-year statute of limitations, MCL 600.5805(8); MSA 27A.5805(8), barred plaintiffs claim. Plaintiff responded that the period of limitation should be tolled in respect to claims that she is asserting on behalf of her minor children due to her children’s infancy. The trial court granted defendant accelerated judgment and plaintiff appeals as of right.
MCL 600.5805(8); MSA 27A.5805(8) provides a three-year period of limitation for commencement of wrongful death actions. Reiterman v Westinghouse, 106 Mich App 698, 701-702; 308 NW2d 612 (1981). In addition, MCL 600.5851(1); MSA 27A.5851(1) provides:
"If the person first entitled to make an entry or bring an action is under 18 years of age, insane or imprisoned at the time his claim accrues, he or those claiming under him shall have 1 year after his disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run.”
Plaintiffs children, however, are not the persons first entitled to bring a wrongful death action. Rather, MCL 600.2922; MSA 27A.2922 mandates that only the personal representative of an estate may bring an action for wrongful death. Accord, Maiuri v Sinacola Construction Co, 382 Mich 391, 393; 170 NW2d 27 (1969). Since minor children are not entitled to bring wrongful death actions, the period of limitation is not tolled by their infancy. This issue was treated at some length in Hebert v Cole, 115 Mich App 452; 321 NW2d 388 (1982), and we choose to follow Judge Allen’s reasoning in that decision. The inequity caused by the Supreme Court’s decision to create a child’s cause of action in a wrongful death case, which is not coextensive with its cause of action in a personal injury case, we leave for correction by the Legislature.
The three-year period for bringing a wrongful death action expired before plaintiff filed her complaint. Accelerated judgment was, therefore, properly granted.
Affirmed. | [
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N. J. Lambros, J.
On November 5, 1980, defendant was awarded a judgment of divorce and custody of her two minor children. That judgment provided that the domicile or residence of said minor children shall not be removed from the State of Michigan without prior approval of the court, as required by GCR 1963, 729.4(1). In addition, the defendant was precluded from changing the domicile or residence of the minor children from the Grand Blanc School District without prior court approval. Defendant filed a petition to obtain the court’s approval to move to Minnesota with the children, but this petition was denied. Defendant appeals as of right.
The instant case presents this Court with an opportunity to clarify our position regarding removal of children from this state subsequent to the entry of a judgment of divorce and the award of custody.
MCL 552.17(a); MSA 25.97(1) provides that our circuit courts shall have the jurisdiction to award custody of minor children in all divorce proceedings. In an attempt to provide guidelines for the resolution of child custody disputes, our Legislature enacted the Child Custody Act of 1970, MCL 722.21 et seq.; MSA 25.312(1) et seq. GCR 1963, 729.4 requires that an order or judgment awarding custody of a child or children shall provide that the domicile or residence of the child shall not be removed from the State of Michigan without the approval of the judge who awarded custody, or his successor. This is the body of codified law which governs our review of the instant inquiry.
Two of our panels have already had an opportunity to examine this issue. In Hutchins v Hutchins, 84 Mich App 236; 269 NW2d 539 (1978), the court determined that in attempting to answer removal petitions, the decisions of the lower courts should be based upon the "best interests of the child” standard set out in the Child Custody Act. The Court observed that "[t]his standard applies not only in the original divorce proceeding but also in all actions involving a dispute of custody of a minor child, see MCL 722.24; MSA 25.312(4).” Id., 238. This view of the law was adopted by a majority of the Court in Watters v Watters, 112 Mich App 1; 314 NW2d 778 (1981).
In both of these cases separate opinions were appended by the third judge. Concurring in Hutch-ins, Judge William R. Beasley wrote that "in the absence of compelling reasons to the contrary, permitting a child to be removed from the State of Michigan to a new, satisfactory location, should be routinely granted”. (Footnote omitted.) Hutchins, supra, 239-240. Dissenting in Watters, Judge Kenneth B. Glaser indicated his belief that the criteria for determining the best interest of the child for custody purposes under the Child Custody Act, MCL 722.23; MSA 25.312(3), were not intended to, nor should they be, applicable to removal petitions. We agree.
A close analysis of the Child Custody Act reveals nothing to support its application to those cases involving the removal of children from the state after the award of custody. Indeed, the Legislature, itself, defined the application and limits of the act with the following language, to wit: "An Act to declare the inherent rights of minor children; to establish rights and duties to their custody, support and visitation in disputed actions; to provide for certain procedure and appeals; and to repeal certain acts and parts of acts.”
MCL 722.24; MSA 25.312(4) provides, "In all actions now pending or hereafter filed in a circuit court involving dispute of custody of a minor child, the court shall declare the inherent rights of the child and establish the rights and duties as to custody, support and visitation of the child in accordance with this act.” (Emphasis added.) Application of the preceding language to child custody cases requires trial courts to determine what action would be in the best interests of the child. As mandated by MCL 722.23; MSA 25.312(3), 11 specific factors must be considered by the trial court.
To expand the application of the Child Custody Act to include removal petitions does violence to the expressed intention of the Legislature and imposes upon the trial courts the burden to reconsider factors previously before the court in child custody disputes and may be likely to present wholly inappropriate areas of inquiry in removal petitions.
Moreover, in 1975, our Legislature adopted the uniform child custody jurisdiction act, MCL 600.651; MSA 27A.651, for the purpose of avoiding child custody disputes "which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being”, and in the interest of promoting "greater stability of home environment and of secure family relationships for the child”. In the words of Judge Beasley in his concurrence in Hutchins, supra, 240, fn 1, adoption of the act "recognizes the transcience of our late 20th century society”.
We believe the appropriate test to be applied in cases dealing with removal petitions is that articulated by the New Jersey Court in D’Onofrio v D’Onofrio, 144 NJ Super 200; 365 A2d 27 (1976), aff’d 144 NJ Super 352; 365 A2d 716 (1976), adopted by reference in Watters v Watters, supra, and which recognizes the mutual rights involved:
(1) "It should consider the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children.
(2) "It must evaluate the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the noncustodial plarent, and whether the custodial parent is likely to comply with substitute visitation orders when she is no longer subject to the jurisdiction of the courts of this State.
(3) "It must likewise take into account the integrity of the noncustodial parent’s motives in resisting the removal and consider the extent to which, if at all, the opposition is intended to secure a financial advantage in respect of continuing support obligations.
(4) "Finally, the court must be satisfied that there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parental relationship with the noncustodial parent if removal is allowed.” D’Onofrio v D’Onofrio, supra.
The D’Onofrio test focuses on what is in the best interest of the new family unit, i.e., custodial parent and child, and not what is in the best interest of the child; the latter having been decided in the earlier custody hearings. Adoption of the D’Onofrio test comports with the legislative intent as it is currently expressed and recognizes the increasingly legitimate mobility of our society. Arbitrary imposition of the "best interests of the child” test in all matters concerning children is illogical at best and cruelly insensitive at worst.
For these reasons, the decision of the lower court rejecting defendant’s petition to move to another state with the children is reversed and the cause remanded for proceedings consistent with our decision. | [
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Walsh, J.
Defendant, Patrick W. Paduchoski, and one William Hawthorne were convicted by a jury of attempted larceny in a building. MCLA 750.360; MSA 28.592. Each was sentenced to one year probation. Defendant Paduchoski only appeals his conviction.
Defendant first argues that the trial judge erred in defining the element of intent in his instructions to the jury. While this instruction was somewhat ambiguous, no objection was made to it at trial. Absent a showing of manifest injustice, objections to instructions cannot be raised for the first time on appeal. GCR 1963, 516.2; People v Flowers, 30 Mich App 579; 186 NW2d 777 (1971); People v Miron, 31 Mich App 142; 187 NW2d 497 (1971); People v Larry Smith, 31 Mich App 191; 187 NW2d 490 (1971). No manifest injustice resulted from the instruction on intent. We hold, therefore, no reversible error arose from this instruction.
Next, did the trial court commit reversible error when it ruled during cross-examination of the key prosecution witness that the witness’s place of employment was immaterial?
Defendant and Hawthorne, employees of the Acme Quality Paint Company, were charged with larceny in the company’s warehouse on the night of September 14, 1971. An eyewitness, Joseph Bryant, who was standing across the street from the warehouse, testified that he saw defendant Paduchoski jump from a car and run into the building through a side door. He further testified that a few seconds later both defendants ran from the warehouse to the street and began walking down the sidewalk. An arresting police officer testified that defendants, who were apprehended as they walked down the sidewalk, were the same two men he momentarily viewed in the warehouse. However, the officer admitted that he lost sight of the two men after they fled through the side door. Thus, only witness Bryant’s testimony unequivocally identifies the two men in the warehouse as the defendants.
On cross-examination, counsel for appellant’s co-defendant asked Mr. Bryant where he worked. The court sustained the prosecutor’s objection, ruling that where the witness works is immaterial. During cross-examination by appellant’s counsel an objection was made to a question concerning the witness’s residence. During the colloquy between counsel and trial judge the question of place of employment again arose:
"Mr. Young: Well I take the position, your Honor, and I have to take it because having tried cases for 44 years and in cross-examination, the only way that I can properly represent a defendant in a criminal case is to cross-examine the witness on the stand at least enough to satisfy myself and to also give the jury the benefit of passing upon credibility and then I want to get to the point of where he’s working. This becomes material too, and other questions that I’m going to ask. There’s a lot of things that come in. There is no showing here, your Honor, to restrict this witness in reference to keeping anything secret. He’s not an informer.
"The Court: It’s not a matter of secrecy. It’s a matter of materiality.
"Mr. Young: Well materiality I can only develop when I cross-examine the witness to establish his credibility.
"The Court: We’re interested in what this witness saw that night, where he lives, what he does for a living is completely immaterial and if the courts have ruled for 44 years otherwise, then I disagree with them.”
In Alford v United States, 282 US 687; 51 S Ct 218; 75 L Ed 624 (1931), the Court held that it was an abuse of discretion and prejudicial error for the trial court to prohibit cross-examination of a government witness respecting his place of residence. The Court reasoned:
"Counsel often cannot know in advance what pertinent facts may be elicited on cross-examination. * * * It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and to put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. * * * To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to descredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial. * * * In this respect a summary denial of the right of cross-examination is distinguishable from the erroneous admission of harmless testimony. * * * The question, 'Where do you live?’ was not only an appropriate preliminary to the cross-examination of the witness, but * * * was an essential step in identifying the witness with his environment, to which cross-examination may always be directed.” Alford, supra, at 693; 51 S Ct at 219-220; 75 L Ed at 628.
In Smith v Illinois, 390 US 129; 88 S Ct 748; 19 L Ed 2d 956 (1968), the Court reaffirmed Alford. In that case a witness who identified himself on direct examination as "James Jordan” admitted on cross-examination that "James Jordan” was not his real name. The trial judge, however, sustained objections to questions by the defense attorney concerning the witness’ correct name and residence. Holding this to be a denial of defendant’s right to confront witnesses against him, US Const Ams VI, XIV, the Court stated:
"[W]hen the credibility of a witness is in issue, the very starting point in exposing falsehood and bringing out the truth through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness’ name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.” Smith, supra, at 131; 88 S Ct at 750; 19 L Ed 2d at 959.
Smith and Alford held it improper to forbid cross-examination of a key witness concerning his place of residence. In the case at bar, the trial court forbade questions about the key witness’ place of employment. We see no viable distinction between these. In fact, occupation may be more indicative of character, reputation, and credibility than residence. Therefore, we think Smith and Alford are controlling.
The Supreme Court has recognized two exceptions to the Smith-Alford standard. The trial court may limit cross-examination as to address where (1) the questions tend merely to harass, annoy, or humiliate the witness, Alford, supra, at 694; 51 S Ct at 220; 75 L Ed at 629; or (2) the inquiries would tend to endanger the personal safety of the witness, Smith, supra, at 134-135; 88 S Ct at 751; 19 L Ed 2d at 960 (White, J., concurring); United States v Saletko, 452 F2d 193 (CA 7, 1971), cert den 405 US 1040; 92 S Ct 1311; 31 L Ed 2d 581 (1972); United States v LaBarbera, 463 F2d 988 (CA 7, 1972). The record reveals neither exception applies.
The trial court erred in refusing to permit defendant’s attorney to cross-examine the government’s key witness concerning his place of employment. This error compels us to reverse defendant’s conviction.
Reversed and remanded.
All concurred. | [
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V. J. Brennan, J.
Plaintiff, Stanley Marchlewicz, appeals from a judgment of the Macomb County Circuit Court entered upon a jury verdict of no cause for action. Plaintiff contends that reversible error was committed by the trial judge when he entered the jury room during their deliberations and when he instructed the jury on contributory negligence. Defendant, Dr. James B. Stanton, has filed a cross appeal alleging that the trial court erred in denying his motion for directed verdict.
In May of 1968, plaintiff sought the professional services of defendant, a Board certified orthopedic surgeon, in relation to pain he was suffering in his right hip. After an examination, defendant diagnosed plaintiffs condition as arthritic degenerative change of the head of the right femur. Defendant recommended and plaintiff consented to the performance of a cup arthroplasty. The operation was performed in June of 1968, without any apparent complications. A physical therapy program for plaintiff was begun but he missed many of the sessions. The pain continued after the operation and pain medication was prescribed by defendant. Some improvement in plaintiffs condition was noted but during the eleven months following the operation plaintiff did not regain the proper func tioning of his leg. Therefore, in May of 1969, plaintiff consulted another doctor who suggested that a revision of the cup arthroplasty might be needed. In August of 1969, a revision was performed by Dr. William H. Harris of Boston.
Plaintiff brought this action against defendant in two counts. The first count alleged negligence or malpractice in the treatment of plaintiff, including negligence in the diagnosis, surgery and aftercare, and negligence in failing to properly inform plaintiff as to the consequences of such an operation. The second count alleged breach of contract of employment.
At-the close of all the proofs, defendant moved for a directed verdict. The trial judge denied his motion and it is from this ruling that defendant prosecutes his cross-appeal.
In Michigan, the testimony of experts is required to establish that a doctor has breached the standard of care required of him. If such testimony is not adduced, no question is presented for the jury’s determination. Lince v Monson, 363 Mich 135; 108 NW2d 845 (1961); Burton v Smith, 34 Mich App 270; 191 NW2d 77 (1971); Daniel v McNamara, 10 Mich App 299; 159 NW2d 339 (1968). In the case at bar, plaintiff had the depositions of Dr. William H. Harris and Dr. Glenn B. Carpenter read into the record. These depositions, when read in the light most favorable to plaintiff, do not contain any statement indicating that Dr. Stanton failed to follow the accepted standard of care either in the diagnosis and treatment of plaintiff or in the eleven months subsequent thereto. Plaintiff attempted to show that the revision was made necessary by the fact that in the original arthroplasty the acetabulum (hip socket) was not reamed out to a depth sufficient to allow proper placement of the cup. The statements of both doctors were to the contrary. The plaintiff also attempted to show that defendant was negligent in allowing eleven months to pass without altering the treatment program. Dr. Harris, in his deposition, however, stated that it was his experience that almost a year was needed before it could be determined that an arthroplasty was not working out. No other medical testimony on this issue was presented. Under these circumstances, we hold that the trial judge erred in submitting the issue of whether defendant was negligent in his treatment of the plaintiff to the jury. There was no expert testimony presented to support plaintiffs contention that defendant breached the standard of care required of him.
Defendant next contends that count II of plaintiff’s complaint is redundant in that it sets forth the same theory as that pleaded in count I, but couched in contract rather than tort language. Defendant further asserts that even if count II properly pleads breach of contract, the proofs failed to establish any jury question. Defendant’s contentions in this regard are without merit. In Guilmet v Campbell, 385 Mich 57, 69; 188 NW2d 601, 606-607 (1971), a contract and negligence action against a doctor, our Supreme Court, in affirming the trial court’s denial of defendant’s motion for judgment notwithstanding the verdict, stated:
"What was said, and the circumstances under which it was said always determines whether there was a contract at all and if so what it was. These matters are always for the determination of the fact finder.”
It is not necessary, to support plaintiff’s claim in this regard, that the existence of a "special con tract” be pleaded or proved. It is only necessary that testimony be adduced from which the jury could properly find the existence of an "express promise to cure or effect a specific result which was in the reasonable contemplation” of the parties and relied on by plaintiff. Guilmet v Campbell, supra. In the case at bar breach of contract was specifically pleaded and proofs were submitted without objection by defendant until he moved for directed verdict. Plaintiff testified that he was told by Dr. Stanton that the arthroplasty would eliminate any pain from his hip and that he would be normal and back to work within six to eight months. Dr. Stanton’s recollection of this conversation was substantially different. Under Guilmet, the determination of whether an express promise was made lies solely with the jury. We cannot say that the trial court erred in submitting this issue to the jury. This Court’s holding in Grewe v Mount Clemens General Hospital, 47 Mich App 111; 209 NW2d 309 (1973), is not to the contrary. In Grewe, the plaintiff’s second count was based on an alleged breach of an implied contract. That is not the case here.
Defendant also alleges that the trial court erred in submitting the issue of uninformed consent to the jury. The question of whether a doctor is negligent in failing to inform the patient of possible consequences of an operation is to be determined according to the general practice customarily followed by the medical profession in the locality. Roberts v Young, 369 Mich 133; 119 NW2d 627 (1963); McPhee v Bay City Samaritan Hospital, 10 Mich App 567; 159 NW2d 880 (1968); Miles v Van Gelder, 1 Mich App 522; 137 NW2d 292 (1965). An examination of the record in the case at bar reveals a complete absence of any medical testi mony that the information imparted by Dr. Stanton to plaintiff, prior to the operation, failed to conform to the standard practice of the medical profession. Absent such testimony, it was error to submit the issue of uninformed consent to the jury.
An examination of the record also indicates, however, that after the jury had retired to deliberate, the trial judge entered the jury room and conversed with the jury foreman. This constitutes reversible error and entitles plaintiff to a new trial. Zaitzeff v Raschke, 387 Mich 577; 198 NW2d 309 (1972). However, since the trial judge also erred in not directing a verdict for defendant on the issues of negligence in the treatment of plaintiff and uninformed consent, the new trial is to be limited solely to the contract claim.
Our disposition of this case renders consideration of plaintiff’s other assignment of error unnecessary.
Reversed and remanded for proceedings not inconsistent with this opinion.
All concurred.
A cup arthroplasty is a procedure in which the socket of the hip and the head of the femur are reshaped and a cup placed between them to provide a surface on which the bone can move. | [
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Quinn, J.
The Workmen’s Compensation Appeal Board denied plaintiff benefits on a finding that she was not the lawful wife of deceased nor a dependent by virtue of being a member of his family. On leave granted, plaintiff appeals.
Plaintiff married Robert Broadnax at Austin, Texas in either 1939 or 1943. Sometime thereafter she left Texas and moved to Los Angeles, California, where she remained until 1946. Thereafter she came to Detroit, and in 1954, she began living with Clarence West although she was still married to Broadnax.
Plaintiff held herself out as the wife of West and relied on him for support. She was not divorced from Broadnax at the time of West’s death, January 9, 1967. This death resulted from an injury of December 14, 1966 sustained while West was employed by Barton-Malow Company.
Plaintiff’s petition to the Workmen’s Compensation Commission for hearing was heard October 25, 1967 and denied. On her application for review, the appeal hoard remanded the case to the referee for the submission of proofs as to whether or not West’s death arose out of and in the course of his employment. The referee’s decision on remand issued May 12, 1969 and determined that the death arose out of and in the course of employment but that plaintiff was not a dependent within the meaning of the Workmen’s Compensation Act.
May 15, 1969, plaintiff applied for review of the clairh by the Workmen’s Compensation Appeal Board. November 10, 1972, the appeal board affirmed the referee, and this appeal followed.
In citing the statute defining dependency, plaintiff has referred to 1948 CL 418.353; MSA 17.237(353). This section is contained in the 1969 Workmen’s Compensation Act, effective December 31, 1969. While the language quoted from the 1969 act is quite similar to its predecessor, 1948 CL 412.6; MSA 17.156, the latter citation is appropriate for this case.
Both citations contain the following language:
"No person shall be considered a dependent unless he or she is a member of the family of the deceased employee, or unless such person bears to said deceased employee the relation of husband or widow, or lineal descendent, or ancestor, or brother or sister.”
In interpreting this language, the Supreme Court said in McDonald v Kelly Coal Co, 335 Mich 325, 330; 55 NW2d 851, 853 (1952):
"We are of the opinion that in order to create a family relationship there must exist a condition devoid of moral turpitude. * * * Public policy does not sanction the payment of compensation arising out of meretricious cohabitation.”
McDonald controls this case.
Affirmed with costs to defendants.
All concurred.
The only substantial difference in the language is that the 1969 act substituted injured for deceased. Actually the proper statute for determining dependents of deceased employees is 1948 CL 418.331; MSA 17.237(33Í). The method for determining dependency in this statute is identical to that quoted above. | [
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Per Curiam.
Joseph Toth, a resident of Rose-ville, Michigan and Anna Ganczer, a citizen of Hungary, were married in Hungary in August of 1964. They returned to Michigan and lived in Macomb County until Joseph Toth died on July 6, 1970. Anna filed petitions for a widow’s election and allowance in the Macomb County Probate Court. That court denied her petitions, but the circuit court granted her relief. At the same time, the executor of the estate filed an action in the Macomb County Circuit Court, alleging that Anna was not the widow of Joseph in that their marriage was invalid because they were counsins of the first degree. MCLA 551.3; MSA 25.3 and MSA 551.4; MSA 25.4. This circuit court action was consolidated with the appeal from the probate court, and the trial court granted relief in favor of Anna. Leave to appeal was denied in the case which began in the Macomb County Probate Court. The claim of appeal from the circuit court decision is based upon the same grounds which have previously been found to be devoid of merit.
The plaintiff argues that Anna and Joseph, cousins of the first degree, were not lawfully husband and wife pursuant to MCLA 551.3; MSA 25.3 and MSA 551.4; MSA 25.4. However, an examination of the various provisions of the Hungarian People’s Republic Law of 1952, particularly Chapter 2, Paragraph 8, reveals that marriage between first-degree cousins is not prohibited. Also, the district court in Pest County, Budapest, Hungarian People’s Republic, has recently found the marriage between Anna and Joseph valid pursuant to the Hungarian laws. Michigan follows the well-established general rule that a marriage valid where it is contracted is valid everywhere. Hutchins v Kimmell, 31 Mich 126, 131 (1875).
The case of In re Miller’s Estate, 239 Mich 455; 214 NW 428 (1927), is squarely on point and controls the decision in this case. The Supreme Court pointed out that our prohibitions against marriage between first-degree cousins applies only to marriages solemnized in this state. Thus, a marriage between two cousins of the first degree, both residents of Michigan, who specifically went to Kentucky to evade the Michigan prohibitions, was found to be valid despite the Michigan laws prohibiting such a marriage. The Hungarian People’s Republic obviously recognizes the validity of marriages between cousins of the first degree. Therefore, pursuant to the decision in In re Miller’s Estate, supra, the marriage between Anna Ganczer and Joseph Toth was valid.
Affirmed. | [
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Fitzgerald, J.
This action is one of unfair competition for use of defendant’s trade name — Boron Realty.
Plaintiff is a large Ohio corporation, a subsidiary of Standard Oil Corporation, and has long used the name Boron in the marketing of its gasoline and oil products. Plaintiff has been qualified to do business in Michigan since 1955. However, it has been only since 1967 that it has expended major sums of money in actively entering the market in the metropolitan area. Plaintiff involved itself in substantial real estate dealings, acquiring about 300 parcels of land worth over 22 million dollars. Plaintiff also expended very substantial monies in an advertising campaign to introduce its products to the Michigan consumer.
Defendant Callanan, an attorney, has practiced law and sold real estate in Michigan for many years. Prior to December 1968, his real estate business went under the assumed name of Garfield Real Estate. Defendant admits he was aware of the Boron Oil Company at the time he changed the real estate firm’s name.
Plaintiffs prayer for injunctive relief, an accounting of profits, and for actual and punitive damages was denied and the suit dismissed because . the trial court found plaintiff stated no cause of action.
The court made findings of fact that there would be no likelihood of confusion over the names. The court also found that the word "Boron” had acquired no secondary meaning in which plaintiff had a property interest.
From the various issues presented, we can restate the issue thus: Whether the plaintiffs trade name has become so identified with its business that use by defendant, not in any way in competition with plaintiff, would amount to an unfair business practice?
Plaintiff claims, in essence, to have an exclusive right to use the trade name Boron and argues persuasively that a court is not free to disregard the nature of the term Boron (a non-metallic element) as applied to the goods and services here involved. It argues that the word Boron as applied to plaintiffs oil and gasoline products is far overshadowed by the association in the public mind of the corporation itself. On this basis, even without a secondary meaning, plaintiff says that the term or word Boron is entitled to protection.
The defendant, on the other hand, argues that there is no secondary meaning to the word Boron, stating that since there is no competition between the parties, and the business is limited to the western suburbs of Detroit, plaintiff’s prayer for injunction was properly denied. Defendant says that the oil company cannot be allowed to have exclusive use of the term Boron as against the entire world unless it can show that there is either direct competition between plaintiff and defendant or actual confusion in the minds of the public.
Ordinarily, one simply cannot be found guilty of unfair competition when the facts indicate no competition. Good Housekeeping Shop v Smitter, 254 Mich 592; 236 NW 872 (1931); Burns v Schotz, 343 Mich 153; 72 NW2d 149 (1955); Ex-Cell-O Corp v Sage, 347 Mich 210; 79 NW2d 497 (1956). There is, however, a longstanding exception to this rule where an outstanding and widely known name, made valuable by the owner — Hudson’s Bay Company — is pirated. Governor & Co v Hudson Bay Fur Co, 33 F2d 801 (D Minn, 1928). In that case, defendant was enjoined from use of the plaintiff’s trade name, even where plaintiff was not in actual competition.
Words or symbols used in connection with one’s goods, services, or business, or physical attributes of goods, not originally appropriable as a technical trademark or a trade name, are deemed to have acquired a "secondary meaning” when they have become associated in the minds of purchasers or customers with the source or origin of goods or services rather than with the goods or services themselves. Armstrong Paint & Varnish v Nu-Enamel Corp, 305 US 315; 59 S Ct 191; 83 L Ed 195 (1938); Barton v Rex-Oil Co, 2 F2d 402; 40 ALR 424 (CA 3, 1924).
.In determining whether a plaintiff has proved his case, certain elements must be established; length of use of the symbol or mark, nature and extent of popularizing and advertising the symbol, and the efforts expended by plaintiff in promoting the connection in the minds of the general public of his mark or symbol with a particular product. See Anno: Doctrine of secondary meaning in the law of trademarks and of unfair competition, 150 ALR 1067.
Of necessity, each case turns on its own facts. Good Housekeeping Shop v Smitter, supra. The test to be applied by the courts on the question of similarity of names is the likelihood of deceiving an ordinary purchaser who is using ordinary care. In applying that test, regard must be had to the nature and physical requirements of the article itself, its cost, the class of persons who purchase it, and the circumstances of its purchase. Federal Engineering Co v Grieves, 315 Mich 326; 24 NW2d 138 (1946).
Actual confusion of customers, clients, or the public at large does not need to be shown; it is sufficient if the acts of the defendant indicate that probable confusion will occur. Metal Craft Co v Metalcraft Heater Corp, 255 Mich 642, 645; 239 NW 364, 365 (1931). Indeed, plaintiff need not show that a defendant benefited from appropriating his trade name. Injury to plaintiff is sufficient. 220 Bagley Corp v J Freud Land Co, 317 Mich 470; 27 NW2d 59 (1947).
Michigan law appears clear that in order to enjoin the use of a trade name, there must be competition, except in instances of a very well known name. Good Housekeeping, supra; Burns, supra; Ex-Cell-O, supra.
The tendency has been, however, in recent years, for courts to pull back somewhat from the rigid requirement which insisted that in order to amount to an infringement, the parties had to be competitors. Polaroid Corp v Polaraid Inc, 319 F2d 830 (CA 7, 1963); Dunhill of London v Kasser Distillers, d/b/a Dunhill Distillers, 350 F Supp 1341 (ED Pa, 1972).
In the Polaroid case, the plaintiff camera manufacturer was granted an injunction against an Illinois-based refrigeration and air conditioning company which had adopted the name "Polaraid”. Citing the Yale decision and another Illinois decision in Lady Esther, Ltd v Lady Esther Corset Shoppe, Inc, 317 Ill App 451; 46 NE2d 165; 148 ALR 6 (1943), as controlling, the Court alluded to a number of unfair competition cases reaching the same result in other jurisdictions.
In Triangle Publications, Inc v Standard Products, Inc, 241 F Supp 613 (ED Pa 1965), the defendant was enjoined from use of the term "Miss Seventeen” on its luggage because the court found this an unfair appropriation of plaintiff’s "Seventeen” magazine trade name. Likewise, in Allstate Insurance Co v Allstate Inc Co, 307 F Supp 1161 (ND Tex 1969), defendant’s car wash business was enjoined from using plaintiff insurer’s prominent trade name.
Plaintiff most adequately states its case, but on Michigan law it must lose unless it can establish a "secondary meaning”. On the facts presented, it has established (1) long use; (2) use in the metropolitan area, with the notable exception of defendant; (3) extensive advertising with the goal of making the term Boron synonymous with its product. However, the "secondary meaning” is lacking.
While the line is fine, a review of the record leads us to affirm the trial court.
Affirmed. Costs to appellee.
All concurred. | [
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V. J. Brennan, J.
Defendant, Clark Lester, was convicted by a jury in the Washtenaw County Circuit Court of murder in the first degree (MCLA 750.316; MSA 28.548). A motion for new trial was filed on August 1, 1968. An evidentiary hearing on the motion was begun but was, on defense counsel’s request, adjourned without date. A supplement to the motion for new trial was filed in August of 1971, and an evidentiary hearing held thereon. On August 4, 1972, the motion was denied. Defendant now appeals.
Defendant first contends that the admission of certain time cards into evidence constituted a violation of his constitutional right of confrontation as guaranteed by Const 1963, art 1, § 20 and the Sixth Amendment to the United States Constitution. Although defendant objected to the admission of these cards when they were offered into evidence, his objection was based on relevancy. The prosecution contends that this Court should not now consider this issue because the objection below did not encompass the grounds for reversal now urged. We disagree. It is settled law in this state that failure to object does not preclude this Court from reviewing a claim where a constitutional right is likely to have been infringed. People v Thomas, 44 Mich App 649; 205 NW2d 604 (1973); People v Cotton, 38 Mich App 763; 197 NW2d 90 (1972).
In People v Lewis, 294 Mich 684; 293 NW 907 (1940), our Supreme Court held that it was error to admit business records into evidence in a criminal proceeding under an exception to the hearsay rule because to do so deprives the defendant of his right of confrontation. The admission of the time cards in the case at bar, therefore, clearly constituted error. This does not mean, however, that we are required to reverse defendant’s conviction on this point. The business records admitted in Lewis directly corroborated testimony of the complaining witness and reversible error was, therefore, found to have been committed. In People v Gauthier, 28 Mich App 318; 184 NW2d 488 (1970), leave den, 384 Mich 812 (1971), however, this Court held that although error was committed when certain business records were admitted into evidence, the error was harmless beyond a reasonable doubt because of the overwhelming convicting evidence which had been presented. We are convinced that the error in the case at bar was harmless beyond a reasonable doubt also. See People v Parm, 15 Mich App 303; 166 NW2d 536 (1968); People v Wolke, 10 Mich App 582; 159 NW2d 882 (1968). The time cards in no way related to defendant’s presence at the scene of the crime and in no way directly corroborated the eyewitness’s account of what occurred. We cannot say that reversible error was committed by allowing these cards into evidence.
Defendant next contends that the trial court committed reversible error by allowing the prosecutor to raise and put into issue the defendant’s character and reputation before the defendant had done so. An examination of the record reveals that although defendant’s counsel initially objected to the line of questioning sought to be pursued by the prosecutor in his cross-examination of defendant, an agreement was subsequently reached between the parties as to the permissible scope of the cross-examination. The questioning by the prosecutor thereupon continued with defense counsel raising and then withdrawing an objection to one specific question. In light of these facts it is clear that this issue has not properly been preserved for appeal. People v Robert Lee, 40 Mich App 239; 198 NW2d 818 (1972), leave den, 387 Mich 795 (1972); People v Ray Clifton Smith, 20 Mich App 243; 174 NW2d 22 (1969). Defendant, for whatever reason, acquiesced in this line of questioning and cannot now be heard to complain.
Defendant finally contends that he was deprived of due process of law by the prosecution’s failure to disclose to defense counsel the fact that a .22-caliber pistol and a ballistics test performed thereon were in the possession of the police at the time of trial. This issue was first raised by defendant in his motion for new trial and is thus properly before us for our consideration. People v Stedman, 41 Mich App 393; 200 NW2d 370 (1972).
A hearing was held on defendant’s motion for new trial at which testimony was presented revealing that, from the time defendant was first questioned, the police had in their custody a .22-caliber pistol and ballistics tests which had been performed thereon. Defendant was apprised of the fact that the gun was in the possession of the police during questioning but his counsel was never so informed. No request was made prior to or during trial for disclosure of evidence of this type. There is no allegation that the prosecutor deliberately withheld this information from defendant’s counsel and the record does not reveal any bad faith on the part of the prosecutor. A police officer who participated in the initial investigation of this crime testified that there was nothing in the police file to indicate that this was the gun used to murder the deceased. Under these circumstances we feel that this case falls within the class of cases the Second Circuit Court of Appeals was speaking about in United States v Keogh, 391 F2d 138, 148 (CA 2, 1968), quoted with approval in Giglio v United States, 405 US 150; 31 L Ed 2d 104; 92 S Ct 763 (1972), wherein it was said:
"To invalidate convictions in such cases because a combing of the prosecutors’ files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict would create unbearable burdens and uncertainties.”
An examination of the trial transcript reveals that defendant’s account and theory of what transpired on the night in question was effectively presented to the jury who chose to disbelieve him. We are unable to perceive how the evidence complained of on this appeal would have changed that result. At the hearing on his motion for new trial, defendant, with respect to this issue, failed to establish anything beyond the fact that his counsel was not apprised of the existence of these items. The statement that this weapon was not involved in the case remains undisputed.
Affirmed.
Van Valkenburg, J., concurred.
The holding of the Supreme Court in Lewis was subjected to vigorous criticism in People v Gauthier, 28 Mich App 318; 184 NW2d 488 (1970), leave den, 384 Mich 812 (1971), and is presently being reconsidered in People v Kirtdoll, 44 Mich App 237; 205 NW2d 44 (1972), leave granted, 389 Mich 784 (1973). Until the Supreme Court overrules Lewis we are bound by that decision. | [
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Bronson, J.
Plaintiffs, George Surowitz and Sylvia Surowitz, brought this action challenging the validity of defendant’s zoning ordinance which restricted plaintiffs’ land to AG (agricultural use). The trial judge, sitting as trier of fact, held the ordinance unconstitutional and permanently restrained the defendant from enforcing the zoning ordinance to exclude the development of a trailer park on plaintiffs’ property. Defendant appeals of right.
In his opinion, the now retired Judge Clark Adams clearly described the factual setting. We have adopted a portion of Judge Adams’ opinion, as follows:
"The plaintiffs Surowitz are the owners of one hundred thirteen (113) acres of land in Section 6, White Lake Township, Oakland County. The land is unimproved and practically unused although some hay was cut from the southerly part of the property within the last two years. By township ordinance adopted in 1955 and amended in 1967 the plaintiffs’ land was and is zoned AG (Agricultural Use). The property is rolling, wooded in part and includes one small lake. Previous owners of the cleared area found it could not be profitably farmed and there has been no genuine farming activity on the land in the last ten years.
"In December 1969, after a study of possible uses of the property, plaintiffs applied to the township board for a re-zoning of their land from AG to R-3 (Mobile Home Park District) in order that they might develop the property as a mobile home park. Their request was denied by the board and this litigation followed, the plaintiffs claiming that the present zoning has no reasonable relationship to the public health, morals, welfare or safety of the community and yet denies to them the highest and best use of their land.
"White Lake Township is typical of the rural areas at the fringe of the metropolitan area of Detroit. In the last quarter century it has felt the impact of an expanding community. Once almost exclusively farmland, today one has to search for those who produce a living on the soil. Factory workers and office workers no longer want to live in the community where they work. As a consequence the land around the plaintiffs’ property, and for that matter a great park of Oakland County, has now been divided up into relatively small home-sites, most of them ranging from ten acres down to subdivision lots.
"As an inevitable result of this change in land use the population of the defendant township has increased tremendously and land values have skyrocketed. Further growth is anticipated when an expressway now being planned is built in a northerly direction through the township and within a mile or two of the plaintiffs’ land. Experts predict with reason that the demand for homesites will greatly increase in the foreseeable future, and yet despite changes already apparent and the anticipated development, the township continues to restrict plaintiffs’ land to farming and large residential homesites.
"At trial plaintiffs produced well qualified experts who are convinced that mobile homes are an essential part of the change in the character of the community. Recognized by state statute as an approved land use, mobile homes offer to the medium income citizen the most economical residential accommodations. Statistics disclose an almost unbelievable increase in mobile home sales, an indication that they serve a genuine public need.
"The defendant township claims that it has recognized this growing public need by zoning six areas in the township as mobile homesites. Some years ago the township employed a land planner to prepare a planned use of the township. Presumably that plan recognized the then uses and looked forward to future use having in mind the public health, welfare and safety of the community. A plan was produced and given consideration by the township board but it was not adopted. It made no recommendation for mobile home park areas.
"When the Zoning Ordinance of 1955 was adopted and the land use plan considered by the board there were four individually owned areas then used as mobile home parks. Those areas were recognized and so zoned in the ordinance. Later two other individually owned areas were zoned as mobile home parks by township board action.
"As of the date of this trial no other lands are zoned for such use. If any additional lands in the township are to be accepted for mobile homesites such use can occur only by amending the township zoning ordinance which is to say that no property owner except the present users in White Lake Township can use their land for mobile homesites unless the township board in its discretion amends the zoning ordinance.
"Governmental restriction of the use of private property is a taking of that property either in whole or in part. Such taking cannot be justified constitutionally unless it is related to the public health, welfare, morals or safety.
"The township board has not ordained any area in the township for mobile home parks except those restricted areas presently used for those purposes. It has not adopted a plan for future development. Any landowner seeking such use must depend upon the whim and caprice of the township board who presently may exercise their discretion by ordinance amendment but without prescribed standards. In no other way can a mobile home park be developed. [See: Smith v Plymouth Twp Building Inspector, 346 Mich 57; 77 NW2d 332 (1956); Bristow v Woodhaven, 35 Mich App 205; 192 NW2d 322 (1971).]
"Competent testimony of plaintiffs’ witnesses convinced this court that the highest and best use of plaintiffs’ land is the development of a mobile home park. Such use is approved and controlled by state law and would not adversely affect the public health, welfare or safety. The township board has adopted no plan that would permit such use in available areas. Such needed and legal use of land in the township is denied to all but six preferred property owners.
"It must follow and the court finds that the township through the application of its zoning ordinance to the plaintiffs’ land has taken property rights from them without due process of law and in violation of their constitutional rights. The ordinance as applied to plaintiffs’ land is void.”
Subsequent to Judge Adams’ opinion this Court decided Nickola v Grand Blanc Twp, 47 Mich App 684; 209 NW2d 803 (1973). Judge O’Hara reached constitutional bedrock in a factual setting not unlike the present controversy. The relevant portions bear repeating here (p 689; 209 NW2d p 806):
"1. In this country people are constitutionally guaranteed any lawful use of their real property.
"2. Limitations on use may not impinge on this principle except by exercise of the police power. This exercise must be reasonably related to the public health, safety, welfare and morals.”
Judge O’Hara, in applying these principles to the facts in Nickola (the trial court found the ordinance in Nickola to be a valid exercise of this police power), wrote (p 689; 209 NW2d 806):
"According full acceptance to the trial judge’s findings of fact we cannot possibly see how a mobile home park vis-a-vis single family residences can possibly affect Grand Blanc Township’s morals, health or safety on the land in question. Standards of sanitation, fire protection and other general health and safety require ments are imposed upon mobile home parks by statute. There is nothing of record to suggest that trailer parks create, any greater 'moral’ problem (whatever that means) than any other type structure.
"Thus we must equate the extremely difficult to define word 'welfare’ with the purpose of the Grand Blanc Township ordinance. The only 'welfare’ we can possibly see here is that Grand Blanc Township residents like single family residences better than they do trailer parks. Access roads and traffic problems would not ensue under the trial judge’s findings. Whatever 'master-plan’ problems exist as between the permitted use and the non-permitted use do not appear of record.”
We find these principles and the opinion of the trial judge dispositive of the present controversy and the decision of the trial judge is accordingly affirmed.
Affirmed. Costs to plaintiffs.
All concurred. | [
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North, J.
This is an appeal by plaintiff’s former husband, from a modification of the provision in a decree of divorce whereby the amount defendant was ordered to pay for the support of minor children was increased. In January, 1939, plaintiff was granted a pro confesso decree of divorce. She was given the custody of 6 children born of the marriage, whose ages varied from 4 to 15 years, until they became 16 years of age or the further order of the court. The decree provided that defendant should make weekly payments of $10 to the clerk of the court who should “transmit all 'sums of money so paid to Flossie Dillon. ’ ’ The meager amount of $10 per week was obviously due to the fact that at that time defendant’s earnings were only 20 to 25 dollars per week. ' So far as the record discloses neither of these parties at the time the decree was granted had any appreciable amount of property. While we do not consider it at all controlling of the present controversy, it may be noted that each of these parties remarried, that plaintiff has two children of her second marriage, and that no children have been born of defendant’s second marriage. At the time plaintiff filed her petition 4 of the 6 Dillon children were still under 16 years of age, their ages then varying from 10 to 14 years.
On this appeal the matter is heard by us de novo; and the controlling issue is whether the record.discloses such a change ofi circumstances as renders it just and equitable that defendant should be required to pay more for the maintenance of the four minors above mentioned than was required by the original decree. The prayer of plaintiff’s present petition is “that an order be entered in this cause increasing the amount of the weekly alimony payments from $10 per week to such a sum as will enable this petitioner to properly care for, support and educate said (four) minor children.”
Plaintiff has no employment except as housekeeper in the home of her present husband. Nor has she any property or means, save a bank deposit of substantially $500. She became possessed of that sum in the following manner. Defendant defaulted in making the payments provided in the original decree to the extent of upwards of $1,300. In consequence he was brought before the court in October, 1944, and the matter was adjusted by defendant paying plaintiff $900 as a settlement in full to that date. Plaintiff testified that the money she has in the bank is part of the $900, that in maintaining the children she has expended more than the balance; and that she is conserving the money in the bank to enable her to meet future needs of the children.
Since the original decree was granted there has been a decided change in defendant’s financial status. As before noted, at the. time of the divorce defendant was earning from 20 to 25 dollars per week. At the time of hearing the present matter in circuit court defendant testified: ‘ ‘ My rate of pay is $1.28-per hour; I work 52 hours a week. * * * I have 20 per cent, taken out weekly for bonds and I have two insurances.” He also has some deductions from his pay, such as his witholding tax, old age benefits, et cetera. But on cross-examination he testified: “At the present time my earnings amount to about $50 plus about $12 a week which I take out for bonds.”
Further, the record discloses that the oldest son of these parties lost his life in line of duty in World War II, and that in an insurance policy carried by him defendant was named as beneficiary. By reason of this insurance defendant during his life will receive $41.50 each month. At the hearing in the circuit court there was some uncertainty as to just when defendant would begin to receive these monthly payments, although defendant had received notice from the “Director of Insurance” as follows: “You are entitled to monthly payments of $41.50 beginning September 13, 1944, to continue for life.” Defendant had not received any payments at the time this matter was heard in circuit court, February, 1945. The uncertainty as to the time of these payments evidently caused the circuit judge to make his modifying decretal order, about to be noted,’ in a-qualified or conditional form.
The circuit judge, after taking testimony in open court, allowed the provision of the original decree to stand by which defendant was required to pay for the support of the children $10 each week until the further order of the court; but the circuit judge modified .'the decree as follows:
“It is also further ordered, adjudged and decreed, that the defendant, Clarence Dillon, pay to the plaintiff, Flossie Dillon, a sum of money equal to one-half (%)' of the insurance payments when and as he receives the same as beneficiary on the national service life insurance policy issued on the life of Clarence Dillon, Jr.-, who is now deceased; said payments to continue until the further order of the Court.”
' Notwithstanding defendant’s contention to the contrary, we are. in accord with the determination of the circuit judge that there has been a material change for the-better in defendant’s financial condition since the original decree was entered, and in consequence thereof, to the extent provided in the amended decree, defendant should be required to contribute additional sums for the support and maintenance- of the minor children in plaintiff’s custody. In so concluding we do not overlook defendant’s testimony as to his.present obligations incident to his second marriage. But it must be borne in mind a father’s obligation to support his children, as ordered in a divorce decree or a modification thereof, is neither nullified nor minimized, by the father’s marriage to another woman subsequent to a decree of divorce.
Defendant further contends that since no alimony for plaintiff was provided in the original decree of divorce nor was any reservation made of the right to later grant such alimony, the court did not have the power'in the present proceedings to grant alimony to plaintiff, citing Harner v. Harner, 255 Mich. 515, and Mack v. Mack, 283 Mich. 365. "We are in accord with the legal aspect of defendant’s contention in this respect. But since such contention does not appear to have been urged before the circuit judge, we construe his amendment of the decree as ordering an additional amount payable to plaintiff as support money for the four children who were under 16 years of age and in plaintiff’s custody. The modification of the decree so construed was clearly within the power of the circuit judge. We think it was a mere inadvertence, .and quite inconsequential, that in the amendment decreed the circuit judge recited in substance that it appeared to him plaintiff was entitled to receive a portion of the insurance payments. It was not only in consequence of that circumstance, but, also, because the court found defendant’s financial condition had improved that the decree was amended in the manner hereinbefore quoted. As recited by the circuit judge in his amendment to the decree, the matter before him was plaintiff’s petition, “praying for an order increasing the alimony payable under the decree of divorce heretofore rendered in this ca%t,se.” The only provision for payment of alimony in the original decree was as and for a contribution to the support of the children born of the marriage. Obviously the amendment now before us was made solely for the purpose of requiring an increased contribution by defendant for the support and mainte nance of the children still in plaintiff’s custody; and it was so decreed because of defendant’s changed and improved financial condition. However, our. holding in this particular is without prejudice to defendant’s right to ask clarification of the amendr ment in the circuit court, should he deem such action desirable.
In our judgment there is no merit to defendant’s contention that since he is named as the sole beneficiary in the above-mentioned insurance policy, the circuit judge was without power to decree that defendant should pay plaintiff additional sums for the children’s maintenance and support which equalled half of the insurance payments. The point is that receipt of the insurance money renders defendant equitably able to contribute more liberally to the support and maintenance of his own children. Since he has financial means so to do, the source thereof is quite immaterial.
The amendment to the decree made by the circuit judge is affirmed, with costs to appellee.
Carr, C. J., and Buteel, Bushnell, Sharpe, Boyles, Reid, and Dethmers, JJ., concurred. | [
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Btttzel, J.
James and Marvin Laker on'the 11th day of January, 1946, entered into a lease with defendant Soverinsky for rental of a space approximately 18 feet square in a building in Detroit, Michigan, for the purpose of conducting a wiping cloth business in which dirty, unsorted rags are collected and, after being laundered and sorted, are sold to various industrial establishments. Subsequently, Joseph Graba entered the Laker firm as a partner and with defendant’s consent became an additional lessee. The three partners are the plaintiffs herein. The lease was for a period of one year from February 1,-1946, at a rental of $1,800 per year. In a part of the building* not leased to plaintiffs, defendant conducted a laundry business. Defendant’s portion of the building was equipped with the machinery necessary for the laundering of old rags. In a rider appended to the lease and bearing the same date, plaintiffs agreed to have defendant launder their rags exclusively and to pay $.045 per pound for each pound of rags laundered. This agreement provided that the price for the service could be renegotiated upon 90 days’ notipe, but in no event was the additional price to be more than one cent per pound. Plaintiffs were given the option of renewing the lease for a further period of four years provided 90 days’ notice was given in writing prior to the end of the year, but in the event that the renegotiation price for laundering was not consummated within the 90-day period, the lease could be canceled by either party. Other provisions of the lease are not involved in the instant case.
In their bill of complaint plaintiffs claim that approximately five months after the lease was entered into, defendant advised them that for personal •reasons which he would not disclose, but which were not caused by any acts on the part of the plaintiffs, he could not and would not continue to launder their rags. Plaintiffs persuaded defendant to continue the laundering service. The following month, however, defendant advised them that they could no longer use the laundry facilities in the building, but that he would have .their rags laundered elsewhere. They allege that the laundering was done at another place for two weeks which proved unsatisfactory and that the following month defendant completely discontinued his laundering operations on the premises. Plaintiffs thereupon brought a bill in equity and asked for an injunction to restrain defendant from selling or disposing of the property and the machinery and equipment thereon. They further asked for a mandatory injunction to compel defendant to launder their rags and to permit plaintiffs to use all of the. laundry facilities, machinery and equipment contained on the premises. Defendant filed an answer and motion to dismiss on the ground that the case was not one calling for equitable relief and that plaintiff had a complete and adequate remedy at law. The trial judge, without filing an opinion, entered an order dismissing the cause.
Plaintiffs’ bill was properly dismissed. Possession of part of the building, by plaintiffs was sufficient notice of their leasehold rights. There was no agreement by defendant that he would not sell the building or the machinery therein. The courts cannot make a new contract for the parties. The relief sought was,, in fact, to secure specific performance of'an agreement to launder plaintiffs’ rags. A mandatory injunction to compel defendant to furnish services during the term of the lease and the renewal would require continuous supervision by this Court. Specific performance will not be decreed under such circumstances. Diamond Lumber Co. v. Anderson, 216 Mich. 71. See, also, Green v. Railroad Co., 158 Mich. 436. Moreover, a reading of the record as well as the briefs is convincing that plaintiffs have a full and adequate remedy at law. Specific performance will not be decreed where there is an adequate remedy at law. Diamond Lumber Co. v. Anderson, supra; Keys v. Hopper, 270 Mich. 504.
In MacGlashan v. Harper, 299 Mich. 662, 667, this Court stated:
“Specific performance is a remedy of grace and not a matter of-right, Mowat v. Walsh, 236 Mich. 391, and the test of whether or not it should be granted depends upon the peculiar circumstances of each case, Waller v. Lieberman, 214 Mich. 428. The granting of this equitable remedy lies within the discretion of the court. Stecker v. Silverman, 294 Mich. 422. See, also, Richards v. White, 44 Mich. 622; Smith v. Stewart, 245 Mich. 452; and 58 C. J. p. 1078, § 336.”
Subsequent events and alterations in .the situation of the parties are set forth for the first time in the briefs of the respective litigants and do not appear in the record filed in this Court. Our decision herein.) however, shall not preclude plaintiffs, within 30 days from the date of this opinion, from filing a motion in the circuit court asking that the case be transferred to the law side; such motion, if timely made, shall be granted and an order entered, which shall also provide that proper pleadings be filed, including allegations' of events and alterations in the situation of the parties that have taken place up to the time of the filing of such pleadings.
A decree will be entered in this Court affirming the decree of the lower court as modified herein, and the case remanded for the purpose hereinbefore stated. Defendant will recover costs in this Court.
Carr, C: J., and Bushnell, Sharpe, Boyles, Reid, North, and Dethmers, JJ., concurred.
See 3 Comp. Laws 1929, § 14008 (Stat. Ann. §27.052). — Reporter. | [
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Carr, C. J.
The parties to this case were divorced on July 1, 1939. The decree, which was granted to plaintiff, gave to her the custody of the 4-year-old son of the parties, Paul Kennefh Johnson. Thereafter, plaintiff married Raymond Heimbaugh, from whom she later obtained a divorce, being granted the custody of the child of that marriage, a girl now 4 or 5 years of age. Following such divorce, plaintiff married her present husband, Phil A. Rudd, with whom she is now living.
In December, 1944, defendant filed a petition in the circuit court askiiig that the decree be modified and the custody of Kenneth taken from plaintiff because of the latter’s failure to care properly for the boy. Following the hearing the court, having de termined that plaintiff had failed in her duty to the child in certain respects, entered an order on December 22, 1944, modifying the decree in such manner as to give the custody of Kenneth to the paternal grandparents. The proofs taken preceding such order indicated that the child’s health was not good, that his school work had been interrupted several times because of plaintiff’s changing her residence, that Mr. Rudd was then in the army of the United States, that Kenneth had frequently been left in the custody of persons other than plaintiff, and that during the preceding school year he had, lived with the paternal grandparents, attending school in Sturgis. No appeal was taken from the order of modification.
Under date of August 21, 1945, plaintiff filed a petition in which she referred to the proceeding of the prior December, alleged that her husband had left the military service and had established a home, and requested that the decree be again modified by giving her the custody of Kenneth. Hearing was duly had on the petition and the answer of defendant Johnson thereto, following which the court entered an order declaring that the best interests of the child required that he remain in the custody and control of the paternal grandparents and denying the petition for modification. Plaintiff has appealed.
On behalf of plaintiff attention is called to 3 Comp. Laws 1929, §12852 (Stat. Ann. §25.311), which reads as follows:
“In case of the separation of husband and wife having minor children, the mother of said children shall be entitled to the care and custody of all such children under the age of 12 years, and the father of such children shall be entitled to the care and custody of all such children of the age of 12 years or over: Provided, That any probate court or any court of competent jurisdiction, may, on petition and hearing thereof, make, and enforce such order or orders as it may deem just and proper as to the care and custody of such minor children, excepting in cases where an order, or decree may have been made by any court in chancery regarding* such children: And provided, further, That nothing in this act shall prevent any court of competent jurisdiction from making and enforcing any such order or orders as it may deem just and proper as to the care and custody of such minor children in the same manner and with like effect as it could if this act had not been passed. ’ ’
The language of the last proviso in the section quoted indicates clearly that it was not the intention of the legislature to interfere with the power of courts to make such orders with reference to the custody of children as circumstances may render just and proper. It has been repeatedly recognized that the provisions of the section are not mandatory. Thus in Weiss v. Weiss, 174 Mich. 431, it was said:
“It can be said of the foregoing section, taken as a whole, that it was intended as a general guide for the courts when in doubt as to which of the parents is the more fit, or when neither is shown to be unfit. It has been construed as meaning that prima facie the mother is best entitled to the custody of very young children, favoring* her in that respect, and as meaning there should be preponderating reasons in favor of the father before it is otherwise provided. Klein v. Klein, 47 Mich. 518; In re Knott, 162 Mich 10.
“The statute in question has never been construed as qualifying or restricting the inherent, broad, discretionary powers of a court of chancery to adjudicate as to the custody and control of chil dren whose interests are before it, according to the varying elements for consideration arising in each case, and to make such disposition of each child as its best interests appear to demand.”
Likewise, in Riede v. Riede, 300 Mich. 300, the Court, in commenting on the statute in question, said:
“The,wishes of the parents are a secondary consideration. The welfare of the child is paramount. ’ ’
Of like import are Brookhouse v. Brookhouse, 286 Mich. 151; Smith v. Ritter, 292 Mich. 26; Davis v. Davis, 296 Mich. 711; and Sawyer v. Sawyer, 312 Mich. 524.
The controlling question in the instant case is whether the welfare of this young boy, now 11 years of age, will be best served by removing him .from the home of his grandparents and placing him in the home of his mother and stepfather. No claim .is made that the present home is not satisfactory in all respects, nor that the boy is not being properly reared in a good environment. The record clearly shows that Mr. and Mrs. Johnson have a genuine affection for their grandson, and that they sincerely desire that he remain'with them.
The only change in circumstances between the entry of the order in December, 1944, and the filing of plaintiff’s petition in August, 1945, was that plaintiff’s husband had been released from military service, had entered private employment, and was maintaining a home for plaintiff and her child, the little girl above mentioned. It appears from the testimony taken on the hearing, however, that plaintiff was at that time working outside of the home, and that she customarily employed young girls, 14 to 16 years of age, to care for the child in plaintiff’s absence. Tbe trial court, after listening to tbe evidence, expressed the conclusion tbat plaintiff preferred to work outside of tbe home rather than attend to her domestic duties. It is a fair conclusion, also, tbat plaintiff, while Kenneth lived in tbe home of bis paternal grandparents, did not display tbe interest in bis welfare tbat may reasonably be expected of a mother. Tbe release of plaintiff’s husband from military service does not, under tbe circumstances of tbe case, constitute such a change in circumstances as to justify or require a modification of tbe decree, especially in view of tbe satisfactory character of tbe home where tbe boy is now living. A change in tbe environment of a child is ordinarily not conducive to tbe child’s welfare. This -is especially so in instances where, as in tbe case at bar, tbe child concerned is of a nervous temperament.
In Lazell v. Lazell, 271 Mich. 271, this Court, in sustaining tbe refusal of tbe trial court to modify a decree of divorce in such manner as to take the custody of a 9-year-old boy from bis father and give it to the mother, said:
“It is not well to disturb tbe status quo unless tbe court finds it necessary or proper for tbe good of tbe child; Should either parent attempt to influence tbe child against tbe other, or should conditions change, tbe trial judge, on tbe filing of a petition, can always make proper investigation and if necessary amend tbe decree. Tbe court reached tbe correct conclusion in not uprooting tbe child from bis' present environment. The welfare of tbe child is paramount to all other considerations.”
It is apparent from tbe record tbat tbe trial judge gave very careful consideration to tbe claims of tbe parties and determined tbe issue solely on tbe basis of bis findings as to what tbe best interests of tbe child required. The parties had been before him on prior occasions. He had the advantage of listening to their testimony and observing the demeanor of each witness on the hearing held on plaintiff’s petition. While this Court on appeal hears a chancery case de novo, due weight should be given to factual findings of the trial court.
In Chubb v. Chubb, 297 Mich. 501, 506, it was said:
“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. Brookhouse v. Brookhouse, 286 Mich. 151; Stratmann v. Stratmann, 287 Mich. 94; Westgate v. Westgate, 291 Mich. 18.”
See, also, Pinchuk v. Pinchuk, 317 Mich. 523.
On the record before us we think that the trial court correctly determined the matter in issue. The order from which the appeal has been taken is affirmed. In view of the nature, of the ease, no costs are allowed.
Butzel, Bushnell, Sharpe, Boyles, Beid, North, and Dethmebs, JJ., concurred. | [
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Boyles, J.
Plaintiff and appellee school district of the city of Birmingham in Oakland county started proceedings to annex to said district the territory of school district No. 5, township' of Bloomfield in said county. The defendant and appellant school district No. 2, Fractional, of said township of Bloomfield and the city of Bloomfield Hills in said county, also started proceedings to annex to its district approximately the north half of said district No. 5. Obviously both plaintiff and defendant school districts could not annex to their respective districts the same territory in the north half of district No. 5, and this litigation is to settle the issue as to which school district is entitled to said territory. For brevity, the plaintiff will herein be referred to as the Birmingham district, defendant will be referred to as the Bloomfield Hills district, and the district which will lose territory in either event by the annexation will be referred to as district No. 5. The other defendants, board of education, board of supervisors, and certain individuals in their official capacities filed answers disclaiming any interest in the matter except for an orderly process of levying and collecting taxes, and express a willingness to abide any final outcome of the case.
Plaintiff and defendant school districts both started annexation proceedings early in 1946. Some 'delay was caused by litigation and a temporary injunction, which was terminated by a decree dismissing the bill of complaint on June 14,1946. No appeal was taken and that case is of no importance here except to account for the delay. When the time came for the levying of taxes the controversy between plaintiff and defendant came to a head. The city assessor of Bloomfield Hills refused to levy school taxes in the disputed territory within the city until it should be determined to which district it belonged. The Bloomfield township supervisor declared his intention to levy taxes in the disputed territory as a part of the Bloomfield Hills district.
Thereupon the plaintiff Birmingham district filed the instant bill of complaint in the circuit court for Oakland county in chancery asking that the territory claimed by the defendant Bloomfield Hills district, approximately the north half of district No. 5, be decreed to be a part of plaintiff Birmingham district, claiming that its proceedings for annexation took precedence over those of the defendant Bloomfield Hills district. In its bill of complaint, plaintiff sets up in full the proceedings on which it relies. These are admitted by defendant’s answer, but the defendant claims that these proceedings give to it, rather than to the Birmingham district, the priority in claiming the disputed territory; and by way of affirmative matter the defendant sets up the proceedings on which it relies' in claiming the .right to the territory in the north half of district No. 5'. At the hearing it was stipulated that the real parties in interest are the plaintiff and defendant school districts, and the defendant district No. 5. The circuit judge after a hearing entered a decree to the effect that the plaintiff Birmingham district had properly annexed, all of district No. 5 and that school taxes should be levied accordingly, on the entire territory of district No. 5. The defendant Bloomfield Hills district appeals.
Plaintiff Birmingham district is a school district of the third class, existing under the provisions of Act No. 319, pt. 1, chap. 6, § 1, Pub. Acts 1927, commonly called the school code, as amended by Act No. 244, Pub. Acts 1929 (2 Comp. Laws 1929, §7219); Act No. 54, Pub. Acts 1931; Act No. 182, Pub. Acts 1939; and Act No. 169, Pub. Acts 1945 (Comp. Laws Supp. 1945, § 7219, Stat. Ann. 1946 Cum. Supp. § 15.181). The territory of said district includes all of the city ■ of Birmingham, a small part of the city of Bloomfield Hills, and some unincorporated territory in the township.
The Bloomfield Hills district is a graded school district existing under the provisions of part 1, chap. 3, § 1, of the school code, supra (2 Comp. Laws 1929,' §7115 [Stat.'Ann. §15.21]). Its territory includes the greater part of the city' of Bloomfield Hills, and unincorporated territory.
District No. 5 is a primary school district existing under the provisions of part 1, chap. 2, § 1, of the school code, supra (2 Comp. Laws 1929, § 7095 [Stat. Ann. § 15.2]). Its territory includes a small part of the city of Bloomfield Hills, and unincorporated territory in'the township.
The dispute here is largely as to which provision of the school code applies to this annexation, and as to the proper construction of the language used therein. Chronologically, the proceedings taken by both plaintiff and defendant school districts for annexation of the whole or a part of district No. 5 were as follows: Dated January 16, 1946, a petition, was signed by 45 persons described as “property owners and residents , of district No. 5,” directed to the Oakland county school board requesting that a certain (north) portion of district No. 5 (describing it) be transferred to the Bloomfiéld Hills district. On January 21st the above petition was forwarded, with a letter dated January 19th, to the county board. On the same day a copy of said petition, without the- signatures, was- forwarded to the Bloomfield Hills district board of education, with a letter requesting’• that' the board “approve the transfer and make known you,r approval to the Oakland board. ’ ’ On January 25th a letter from the secretary of the county board of education was sent to the Bloomfield Hills board, requesting action on the petition. On January 30th a resolution was passed by the Bloomfield Hills board, approving the petition. On February 12th a resolution of the Birmingham district hoard of education was passed, determining that all of district No. 5 should he annexed to the Birmingham district, subject to approval of the electors. On February 14th a resolution of the district No. 5 board was passed, calling a special meeting of the- electors of the district for March 4th, to vote on annexation to the Birmingham district. On February 21st a resolution of the Bloomfield Hills board was passed, accepting the transfer proposed in the petition and designating members to meet with the county board on March 4th to consider the change.
Prior to said March 4th, the suit hereinbefore referred to was started and a temporary injunction obtained restraining the election as to’ annexation to the Birmingham district. The meeting of March 4th between the members of the Bloomfield Hills district and the county board was adjourned from time to time while that suit was pending. On June 14th, the bill in that cause having been dismissed, the joint meeting which had been called by the Bloomfield Hills board was held, and the annexation to the Bloomfield Hills, district approved. On June 17th the adjourned election which had been called by .the district No. 5 board was held. None of the residents of the northern portion of district No. 5, the land in dispute, voted in the election, allegedly on the advice of their attorney that the joint meeting of June 14th had already resulted in their transfer to the Bloomfield Hills district.
"We agree with the trial court that the.annexation of territory by Bloomfield Hills district is governed by the provisions of part 2, chap. 3, §§13, 14, of the school code, supra (2 Comp. Laws 1929, §§ 7401, 7402 [Stat. Ann. §§ 15.419, 15.420]). Bloomfield Hills district is a graded school district, and Bloomfield Hills is a city with less than 10,000 population. Part 2, chap. 3, of the school code applies to alteration and consolidation of school districts. Sections 13 and 14 apply to graded school districts, such as the Bloomfield Hills district. Its caption, which was a part of the act as passed by the .legislature, reads:
“Districts composed in whole or in part of a city of less than ten thousand.”
The pertinent part of section 13 is as follows:
“Whenever-a change in, or the establishment of, the boundaries of a school district composed in whole or in part of a city having a population of less than 10,000 is desired or becomes necessary, such change or establishment may be made by the joint action of the board of education of such district and the township board of the township in which the territory may be located. ’ ’
The construction of the italicized part, indicated in the above quotation, is one of the grounds for disagreement between the parties in the present case. Does section 13 apply where only a part of a city of less than 10,000 inhabitants is in the school district, or must the entire city be included in it? It is quite important to note that in part 1, chap. 6, § 4, of the school code (2 Comp. Laws 1929, § 7222 [Stat. Ann. § 15.184]); the words “city forming the whole-or a part of a school district of the third class” are used in the same sentence with and intended to be consistent with the words, “the contiguous school district embracing the whole or some part of said city.” We conclude that “school district composed in whole or in part of a city,” a phrase frequently used throughout the school code, and as used in'said section 13, is intended to mean ‘ ‘ school district composed in whole or in part of part or all of a city” of less than 10,000 inhabitants. A case quite in point is Attorney General, ex rel. Com mon Council of the City of Detroit, v. Marx, 203 Mich. 331. In that case, statutory reference to “any city having a population of 250,000 or over which comprises a single school district” was held to apply to the city of Detroit, although that city comprised several school districts. It was held that the legislative reference was to a principal or dominating school district; any other construction would create hardship and injustice. The same principle applies here.
We consider that the controlling question in this case is, which district took the first necessary statutory step toward annexation. Both parties to the appeal agree that in a conflict of annexations, the taking of the first necessary statutory step establishes jurisdiction and priority. This principle of law is well settled in many jurisdictions. Taylor v. City of Fort Wayne, 47 Ind. 274; State, ex rel. Crewdson, v. Smith, 331 Mo. 211 (53 S. W. [2d] 271); State, ex rel. Johnson, v. Clark, 21 N. D. 517 (131 N. W. 715); State, ex rel. Binz, v. City of San Antonio (Tex. Civ. App.), 147 S. W. (2d) 551; State, ex rel. Osborn, v. Mitchell, 22 Ohio Cir. 208; Colquhoun v. City of Tucson, 55 Ariz. 451 (103 Pac. [2d] 269); In re Incorporation of Village of St. Francis, 208 Wis. 431 (243 N. W. 315); People, ex rel. Hathorne, v. Morrow, 181 Ill. 315 (54 N. E. 839). These cases involved municipalities. The same principle is applied to school districts. State, ex rel. George, v. Baker, 120 Tex. 307 (40 S. W. [2d] 41); Independent District of Sheldon v. Board of Supervisors of Sioux County, 51 Iowa, 658 (2 N. W. 590); Trumbull County Board of Education v. State, ex rel. Van Wye, 122 Ohio St. 247 (171 N. E. 241).
The priority of defendant and appellant Bloomfield Hills district depends either upon the validity of the petition of January 16, 1946, or on that of the resolution passed by the Bloomfield Hills hoard on January 30th, both of which occurred prior to any action toward annexation taken by the plaintiff (appellee) Birmingham district on February ,12, 1946.
Plaintiff claims that both of these actions were intended to be- taken pursuant to chapter 3, §§ 1, 2, above mentioned (2 Comp. Laws 1929, §§ 7389, 7390 [Stat. Ann. §§15.407, 15.408]). It is clear from a reading of section 1, and this Court has held with respect to its predecessor enactments (which did not differ in this respect) that no petition under said sections is required, and hence a petition under said sections would not. establish jurisdiction. Gentle v. Board of School Inspectors of Colfax Township, 73 Mich. 40 (under How. § 5041); Howell v. Shannon, 130 Mich. 556 (under 2 Comp. Laws 1897, § 4654). The first action required by said sections 1 and 2 is that of the county board of education. No such action was taken prior to February 12th. But the defendant contends that the petition (January 16th) and the resolution (January 30th) could equally well apply to action taken pursuant to sections 13 to 15 (2 Comp. Laws 1929, §§7401-7403 [Stat. Ann. §§15.419-15.421]), under the subcaption “Districts composed in whole or in part of a city of less than ten thousand.” The objection to this which was deemed fatal by the trial court, was that it was not the intention of the petitioners . or the board to áct under these sections. However, no statutory provision was referred to; and even an erroneous reference to statutory authority would not invalidate administrative action in this case, there being a provision of law under which such action could be taken. Analogous to the situation here, see Commissioners of Johnson County v. January, 94 U. S. 202 (24 L. Ed. 110); City of Beatrice, Ned., v. Edminson, 54 C. C. A. 601 (117 Fed. 427). The petition signed January 16th by the property owners of district No. 5 described the territory to be annexed and was filed with the authority which had the statutory power to act. While the appellant .assumed that the county board had jurisdiction, a' copy of the petition, without signatures, was filed with the Bloomfield Hills district board, and was acted upon by that board, prior to any step toward annexation taken by the plaintiff appellee Birmingham district. We are not impressed with the basis on which the trial court held these proceedings failed to give the Bloomfield Hills district the necessary statutory priority over the annexation, namely, that the petition and resolution were pointed to the wrong sections of the school code. The erroneous" assumption that the county board had the power to act does not nullify the action taken by the petitioners and the Bloomfield Hills board -for annexation to the appellant Bloomfield Hills district.
It is claimed by plaintiff that the petition is defective. Plaintiff claims that a petition required by statute or charter must state all jurisdictional facts, citing Nichols v. Tallmadge, 260 Mich. 576. Cases relied on by plaintiff relate to condemnation proceedings, special assessments and the like. It may be doubted whether the requirements with respect to alteration of local school district boundaries should be so strict, there being no substantial reason therefor. Defendant contends that a petition of this type is sufficient if it complies substantially with the statutory requirements, and brings the matter to the notice of the board, citing Ward v. Consolidated School District, 225 Mo. App. 1139 (16 S. W. [2d] 598), and Drew v. Town of Zwolle, 185 La. 867 (171 South. 59). In the former case, a petition required to be filed with two boards was filed with one only, whose clerk made a true copy and forwarded the original to the other board. This was held to satisfy the statute. In the Louisiana case a petition for local liquor option was not actually filed at all, but it was common knowledge, and the court held the defect cured by subsequent election.
But if the petition be regarded as fatally defective, the resolution of January 30th can stand alone, for the statute provides for independent action by the board without being moved by a petition therefor. City of Indianapolis v. Mansur, 15 Ind. 112; Harris v. City of Saratoga Springs, 171 App. Div. 977 (152 N. Y. Supp. 73); City of Spokane v. Ridpath, 74 Wash. 4 (132 Pac. 638); Lawton v. City of Racine, 137 Wis. 593 (119 N. W. 331). No defect is perceived in this resolution. Plaintiff seems to regard it as too informal. It states:
“Having received a petition from property owners of the following portion of district No. 5, Bloomfield township and Bloomfield Hills:
“Section 28, except Oakland Hills Country Club and the S. 1,980 ft. of S. W. %; the S. % of section 22, except that part in Birmingham and Bloomfield Hills district; the S. % of section 21; and E. % of N. E. % section 21 and the E. % of S. E. % of section 20,
asking that they be transferred from district No. 5 to district No. 2, this meeting was called to- consider the proposition.
“Moved by Blanchard and supported by Patten that the school district No. 2 Bloomfield Hills and Bloomfield township approve this petition.
‘ ‘ Carried. ’ ’
But the statute does not prescribe any particular form of resolution. Nor does reference to a defective petition invalidate the resolution. The board intended to vote in favor of a specific change in boundaries and to add to tbe Bloomfield Hills district tbe territory referred to in tbe petition. Tbis. it could legally do, under the authority of said sections 13 and 14. Tbe reference to and recital of tbe petition makes definite tbe boundaries voted upon. Tbe action was sufficient to sustain priority for tbe appellant.
Counsel for plaintiff claim that at tbe subsequent meeting between tbe county board and representatives of tbe Bloomfield Hills board a member of tbe county board should have been disqualified because be was also a member of tbe Bloomfield Hills board (though not appointed to represent it at tbis meeting). Tbe objection is without force. Tbe disqualifying interest must be. a private and personal one, not a remote one relating to public activities (Thompson v. School District No. 1 of Moorland Township, 252 Mich. 629 (74 A. L. R. 790); Clement v. Everest, 29 Mich. 19, unless tbe public actions amount to a patent fraud upon one of tbe political bodies represented (Myers v. Post, 256 Mich. 156).
Tbe decree of tbe trial court is reversed and a decree may be entered here giving tbe appellant the right of annexation of that part of district No. 5 claimed by it, in accordance herewith. No costs, a public question being involved.
Carr, C. J., and Btjtzel, Btjshnell, Sharpe, Reid, . North, and Dethmers, JJ., concurred.
See Act No. 117, Pub. Acts 1935, as last amended by Act No. 186, Pub. Acts 1945 (Comp. Laws Supp. 1940, 1945, § 7322-1 et seq., Stat. Ann. and Stat. Ann, 1946 Cum. Supp. § 15.161 et seq ).—Reporter. | [
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Boyles, J.
Preliminary to consideration of the merits of this appeal, appellee claims that the appeal is not properly here, having been taken without leave of this Court. Appellee relies on Mack International Truck Corp. v. Palmer, 259 Mich. 234. In that case, like the situation here, an appeal was taken as of right from an order denying a motion to vacate a judgment. But in that case a motion to dismiss the appeal was made, in this Court, and granted. In the instant case no such motion has been made. This' brings the situation within Burk v. Amos., 262 Mich. 332, where an appeal was taken,, without leave, from an order denying a motion to set aside a- default. In that case the Court said (p. 335):
“No leave to appeal was applied for or granted. Under our holding in' Mack International Truck Corp. v. Palmer, 259 Mich. 234, the appeal would have been dismissed had motion been made therefor.”
We therefore consider the issues raised on this appeal. They concern a judgment for value of certain property and for damages for detention, in a replevin case. In 1941 the defendant Paradise Theatre Company purchased the real estate and building located at 3711 Woodward avenue, Detroit, formerly known a§ Orchestra Hall. The building contained a large pipe organ which had b'een installed by its previous owner at a cost of $175,000. The defendant has made no claim of ownership- of the pipe organ, and concedes that it .belonged to the Detroit Trust Company through an earlier retention of ownership by, its donor. In February, 1942, the pipe organ was 'sold by the trust company to the plaintiff herein. The defendant does not dispute plaintiff’s ownership of the pipe organ and its appertaining equipment. The dispute here is over the damages for unlawful detention. At the time plaintiff purchased the pipe organ in February, 1942, its president conferred with the defendant regarding its removal and at defendant’s request the plaintiff consented to wait until summer for removal, until defendant’s theater was closed for the summer. In June, 1942, plaintiff took a crew of six men to defendant’s theater to dismantle and remove the pipe organ and appurtenances. The defendant refused to let the workmen in, denied plaintiff access to the organ. During the summer plaintiff’s president sought at various times to remove the pipe organ; he testified:
“He (Mr. Cohn, the defendant owner of the theater) ordered me out time after time, and then when I went in the fall it was the same condition.
‘ ‘ Then I signed a contract with the Calvary Presbyterian Church in Detroit for a little over half'of the organ at a figure of $27,500. I told Mr. Cohn about the contract and that I simply had to have it and he said ‘You can’t come in here and interfere with our business, you got to take it out in the summer time.’ Mr. Essery (plaintiff’s attorney) then got an appointment with Mr. Cohn and we had a long talk of two or thr,ge hours in March of 1943. At that time we asked Mr. Cohn to let us have it without legal proceedings, and subsequent to that we started suit in replevin.”
Plaintiff filed declaration in replevin in the instant suit April 9, 1943. Service of the writ and declaration was made, aiid part of the organ and equipment was removed by the sheriff, under the writ. The defendant did not enter its appearance or file an answer, and on June 4, 1943, default was regularly taken. Testimony was taken by the court, plaintiff waived return of certain heating equipment which had not been removed, testimony as to value and damages for detention was taken, and judgment for plaintiff entered March 14, 1944, for $1,600 found by the court to be the value of heating equipment, $1,604 damages by reason of unlawful detention, and $252.50 taxed costs.
Ten'days later counsel for the defendant filed a motion to set aside the default and the judgment. Thereupon counsel for the parties filed a stipulation,, the material part, of which is as follows:
“The judgment heretofore entered March 14th, 1944, in the above entitled cause shall be vacated and set aside and this cause set down for rehearing.
“The plaintiff is entitled to possession of the goods and chattels as alleged in plaintiff’s declaration and a judgment for the same shall be entered upon rehearing. * * *
“That said rehearing be granted for the purpose of determining whether the amounts assessed as damages in the amount of $1,604 and as value in the amount of $1,600 are proper.” (
Thereupon the. court entered an order setting aside the judgment, and. directing that the cause be set down for rehearing, “for the purpose of determining whether the amounts assessed as damages in the amount of $1,604 an|L as valued (s?) in the amount of $1,600, are proper.”
It is important to note that in accordance with the stipulation the order'sets aside the judgment but does not set aside the default, or permit issue to be joined and a new trial held on the question whether the plaintiff was entitled to the possession of the goods and chattels as alleged in plaintiff’s declaration. The declaration alleged that the plaintiff was the owner and entitled to possession of the following goods and chattels:
“Casavant organ, including all equipment forming a part of the instrument such as pipes, chests, bellows, expression shutters, cables, swell boxes, three motors, two blowers, motor generator, magnetic switches, starting switches, wiring, thermostatic controls and organ heating units as installed by Mr. Murphy’in Orchestra Hall, now known ¿s the Paradise Theatre, 3711 Woodward avenue.”
The issue of fact which appellant sought to reopen at the rehearing in the circuit court, and now raises here, as to whether plaintiff is entitled to certain organ heating units, has been foreclosed by the stipulation.
On the questions as to the value of the heating units and the damages for detention, on the rehear-. ing much testimony was received by the trial judge. "VYe find that appellant’s claim regarding the organ heating units — that they do not belong to the plaintiff or that the value was not, properly determined by the court — is without merit.
Appellant’s main contention is directed to the amount of damages found by the trial judge for unlawful detention. In that connection, appellant' claims that plaintiff cannot ’ recover damages for detention prior to March 18, 1943, on the ground that no demand for possession had been made' by plaintiff prior to' that date. This contention is partly based on a claim that the declaration did not allege that a demand for possession was made prior to that date. The proof as to when possession was demanded refutes appellant’s claim. In June, 1942, plaintiff attempted, with a crew of six workmen, to obtain possession of the pipe organ, and at that time the defendant definitely refused plaintiff the possession. Defendant’s refusal at that time, continuously maintained thereafter until possession was obtained by the officer who executed the writ of replevin, forms the basis of plaintiff’s claim for damages for the detention. The declaration alleges that on March 18, 1943, the plaintiff through its agent and attorney, “and personally at other times,” requested defendant to surrender possession. If necessary, the declaration as to’ the time of the demand and refusal may be considered amended to conform to the proofs (Court Eule No. 19, § 4 [1945]), and such amendment., may be allowed by this Court. Court Rule No. 72 (1945). Based on the time of the demand and refusal, the amount found as damages for unlawful detention is supported by the proofs.
The circuit judge, on rehearing the question of •damages, again entered judgment for the same amount as originally found. There is ample competent testimony in the- record to support the conclusion. A recapitulation of the testimony is not essential to decision. It is clear that the testimony does not preponderate in the opposite direction.
Judgment affirmed, with costs.
Carr, C. J., and Butzel, Bushnell, Sharpe, Reid,. North, and Dethmers, JJ., concurred. | [
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Sharpe, J.
This is an action in quo" warranto brought by the prosecuting attorney in behalf of Wayne county, Michigan, against Grosse lie Bridge Company to test the right of defendant company to operate a toll bridge across the Detroit river between Grosse He and the mainland.
The facts from which the issues in this cause evolve are not in dispute and are as follows: The Grosse He Bridge Company was incorporated May 1, 1912, under the provisions of Act No. 83, Pub. Acts 1851, as amended (2 Comp. Laws 1915, §8736 etseq.). The corporate term of the company was fixed in its certificate of incorporation at 30 years. On April 22, 1942, its corporate term was extended 30 years from and after May 1, 1942.-
Act No. 83, Pub. Acts 1851, provides in part as follows:
“Section 1. * * * Any number of persons may associate for the purpose of constructing a bridge over any stream, not less than three hundred feet across, upon such terms and conditions, and subject to the liabilities prescribed in this act, and to take and receive such amount of toll for the passage of persons, teams, vehicles, and. animals across such bridge, as the board of supervisors in the county or counties in which such bridge is situated may prescribe, as hereinafter provided.
“Sec. 2'. Such persons, under their hands and seals, shall make a certificate which shall specify: ft ft ft
4 4 6th.1 The term of its existence, not to exceed thirty years; * * *
“Sec. 5. Ño company formed or created under this act shall construct any bridge across any stream until they shall.'have obtained the assent of the board of supervisors of the county in which the same is to be constructed; * # *
“Sec. 6. The board of supervisors of the county in which [any] such bridge is to be' qonstructed, shall, at the time of granting such assent to the construction of such bridge * * . * fix and establish the rates of toll to be paid for passing such bridge. ft ft ft
4 4 Sec. 15. The legislature may at any time alter or amend this act, and all companies formed under this act shall at all times be subject to all general laws in force relative to bridge companies.”
On November 9, 1909, Peter N. Jacobsen of Detroit, Michigan, petitioned the board of supervisors of Wayne county to grant him a permit to build a bridge across the west branch of the Detroit River according to certain plans,, and specifications. On January 5, 1910, the board of supervisors adopted a resolution which granted consent, permission and authority to “said Peter N. Jacobsen, of Detroit, Michigan, and to .his successors when incorporated, and to his heirs and assigns, to build, construct 'and own and forever maintain and operate a concrete arch bridge for the passage of persons, cars, vehifcles, animals, et cetera, from a.point in the township of Monguagon, Wayne county, Michigan, about three-fifths of a mile south of the southerly boundary of the city of Wyandotte, across and as near as' practicable at right angles to the west branch of the Detroit river to the island of G-rosse. lie, in said township, with an open span therein of not less than 190 feet wide located at about the center thereof, the whole .to be built according to' said plans and specifications.”
The assent to the construction of ‘the bridge was, on April 1, 1910, assigned to Alexander Riopelle and by him assigned to the Crosse lie Railway company on May 6, 1910. The railway company was incorporated on May 4, 1910, under the railroad, bridge and tunnel act (Act No. 198, Pu,b. Acts 1873, as amended) for the purpose of constructing a line of railway from a point near the city of Wyandotte to the Michigan Central Railroad station on Crosse ‘He.
In April, 1912, the railway company petitioned the board of supervisors for consent to construct the bridge according to certain modified plans. In response to-said petition the board of supervisors on April 25, 1912, adopted a resolution stating that:
“Consent, permission and authority be and the same is hereby given and granted to said Crosse lie Railway Company, assignee of Peter N. Jacob-sen, and its successors and assigns, to build and construct the bridge contemplated and provided in said license or authority granted on January 5,1910, * * * in accordance with the modified plans and specifications filed with this board on April 9, 1912, as aforesaid.”
On May 1, 1912, the railway company assigned all of its rights under the above resolution to the Crosse He Bridge Company, defendant, which thereafter constructed the bridge and operated the same as a toll bridge.
Negotiations for the purchase of the bridge by the county were carried on until 1940,. but. no agree ment was ever reached for the purchase of the same. On October 27, 1942, the board of supervisors adopted a resolution directing the prosecuting attorney to commence proceedings for the purpose of terminating defendant’s franchise and ousting it therefrom. On August 5, 1943, the prosecuting attorney began the present action at law in the nature of quo warranto. On October 1, 1945, the board of supervisors passed a resolution purporting to revoke the franchise of the Grosse lie Bridge Company.
The defendant filed an answer to the petition in which it is alleged that the franchise granted by the board of supervisors was a perpetual franchise; and that it had a legal right to yoperate the bridge and collect tolls thereunder.
The cause came on for trial and on October 7,1946, the trial court filed an opinion in whiclfi it is stated:
" “Is is therefore my opinion that the franchise is a State franchise and the county is the agent' of the State, authorized by law to grant the franchise, and can only act as agent of the State within the powers conferred upon it by legislative enactment. # *
“The county having been designated as a body corporate under the Constitution and established for political purposes and having subordinate, and local powers of legislation, can only be construed as a municipal corporation. Therefore, it is my opinion that the word ‘municipality’ as used in section 29 of article 8 of the Constitution of 1908, is broad enough, to include a county, and the prohibition against any municipality granting a franchise for a longer period than 30 years is a limitation upon a county as well as a city.
“For the reasons hereinbefore stated, it is my opinion that, the county could not grant a franchise to respondent for a longer period than 30 years, and its attempt to grant the franchise to respondent in perpetuity was a nullity, and the right of the respondent to collect tolls under its original franchise expired orí May 1, 1942. * * *
‘ ‘I am of the opinion that when this bridge and its approaches were completed, it then and there became the property of the public, subject to the right of the respondent to collect tolls during the term of its franchise, but on the expiration of the franchise the public had the right to the free use of the bridge and its approaches.”
A judgment was'entered in conformity with the above opinion including an order that further proceedings may be taken to determine whether plaintiff has a claim for damages sustained by the county through the collection of tolls from the date of the termination of the franchise until the date the bridge is actually turned over to the county.
Defendant appeals and urges that a franchise to collect tolls acquired by a toll bridge company organized and operating under the provisions of Act No. 83, Pub. Acts 1851, is noí a franchise granted by a municipality within the meaning of that term as used in article 8, § 29, of the Constitution of 1908 providing that: “No franchise or license shall be granted by any municipality of this State for a longer period than thirty years;” that defendant’s franchise to operate a toll bridge did not expire May 1, 1942, the expiration date of its original corporate franchise; and that the court has no right to retain jurisdiction of the cause for the purpose of determining what damages, if any, the county may collect by reason of the fact that tolls were collected for several years after the expiration of the original corporate franchise.
We shall first consider whether Act No. 83, Pub. Acts 1851, under which the bridge company was organized was a general or special act. A review of the history of legislative power and constitutional limitations upon thé creating of corporations is helpful.
In an article by Horace L. Wilgus, “Changes Effected by the New Michigan Corporation Act” (Act No. 84, Pub. Acts 1921 in-1 Michigan State Bar Journal, p. Ivii, the following appears:
“The governor and judges of the Territory of Michigan provided for incorporation under special acts, and by general laws'. The legislative council did the same. The Constitution of 1835 provided, ‘The legislature shall pass no act of incorporation unless^ with the assent of two-thirds of each house.’ The' legislature continued to create corporations by special acts, but in 1837 enacted two general laws, one for the creation of banks, and one for corporations for manufacturing purposes, and the Revised Statutes of 1838 contained- general laws for the incorporation of medical societies, religious societies, and libraries and lyceums. These were continued in the Revised Statutes of 1846, and a general law for the incorporation of proprietors of burying grounds had been added in 1840.
“In 1839 the legislature forbade further incorporation under the general banking law of 1837, and in 1844 the Supreme Court held it unconstitutional, construing the constitutional provision as forbidding the legislature to provide for the creation of an indefinite number of banking corporations under one general law. This, although contrary to the decision of the Federal circuit court, apparently made all the then existing general corporation laws invalid.
“The Constitution of 1850, therefore, provided, ‘Corporations may be formed under general laws; but shall not be created by special act, except for municipal purposes. . All laws passed pursuant to this section may be altered, amended or repealed.’ And no act of incorporation before granted should be altered or amended without the assent of two-thirds of the members elected to each house. Formed and created have been given a strict, and alter and amend a liberal meaning. * * *
“After the Constitution of 1850 went into effect, the législature of 1851 passed general laws for the incorporation of telegraph, bridge (Act No. 83, Pub. Acts 1851) * # * companies. * * *
“Notwithstanding the constitutional provision of 1850, and these general acts, it seems that the decision of the Supreme Court (Green v. Graves .[1844], 1 Doug. [Mich.] 351), had cast doubt on the policy of broad general incorporation laws, and as Major Pepper says, ‘it would appear that little faith was at first placed in general laws, because practically every species of company, desiring some special privilege, went to the legislature for a brand new law under which to organize,’ — and got it, of course, cast in the general form. Everyone familiar with our statutes knows to what an absurd and intolerable extent this has been carried, Revision and simplification began in 1873, with the railroad law. # * * These repealed more than 150 acts, and the new act (1921) repeals 100 more and brings corporations organized under many others under its provisions. ’ ’
The important case of Green v. Graves (1844), 1 Doug. (Mich.) 351, held that general corporation laws were void and each corporation had to be especially chartered under the then existing Constitution. In discussing the constitutional provision on page 362, we said: .
“It becomes necessary, then, to inquire into the reasons and object of the constitutional provision in question, that we may be able to determine with accuracy its true spirit and meaning. The restriction contained in the provision is unusual, and repugnant to all our notions of a representative government, where the vote of ,a majority controls in primary assemblages of the people, at an election, in our legislative halls, and in courts of justice. * # * framers 0f (he Constitution (1835), therefore, in incorporating into that instrument a rule in opposition to a principle which lies at the foundation of our political system, must have found their 'justification in the conviction that such a provision was called for by imperious necessity, or from motives of policy, so strong and overruling, as to authorize an innovation of a long-established and deeply-cherished maxim. Let me now advert to. some of those ‘circumstances extrinsic of the act,’ for the purpos’e of discovering the reason or ‘cause of the act. ’ • The Constitution of Michigan was formed in 1835. All who are familiar with the history of that period will hear testimony to the fact, that a strong public feeling existed against corporations, and especially in respect to those possessing banking powers. It may be said to have been the absorbing question of the day. The community were [.was?] alarmed at the vast increase of corporations. They feared the power which such institutions were capable of wielding. The belief was entertained that this power had actually been wielded for bad purposes. It was) argued that all corporations were, in a greater or less degree, monopolies, and hence the prejudices of the community were arrayed against them, v* * * Such were some of the circumstances under which the provision was incorporated into our Constitution, circumstances well calculated to challenge the attention of the convention, and induce that body to devise new guards, by which the community might be protected against the evils growing out of legislation in respect to corporations. But the object they had in view could not be achieved,, unless some statutory check was imposed, by which to prevent the multiplication of corporations. This was the crying evil-; for, in proportion as they increased, in just that proportion would the evils to which I have adverted increase also.”
The Constitution of 1850 provided:
“Corporations may be formed under general laws; but shall not be created by special act, except for municipal purposes. All laws passed pursuant to this section may be altered, amended or repealed.” Article 15, §1.
The defendant in the case at bar was incorporated under Act No. 83, Pub. Acts 1851. This act provided that any number of persons might associate for the purpose of constructing" a toll bridge with the term of existence of the corporation not to exceed 30 years. This act having been passed under the above 1850 constitutional provision is a general law pertaining to a specific class of corporations.
Defendant urges that at the time of its incorporation in 1912 it had the right to extend, its corporate term under the provisions of Act No. 328, Pub. Acts 1905; and that these rights have been preserved in both Act No. 84, part 5, chap. 3, § 2, Pub. Acts 1921 (2 Comp. Laws 1929, § 10135), and in the Michigan general corporation act of 1931, Act No. 327, § 189, Pub. Acts 1931 (Comp. Laws Supp. 1933, §10135-189, see Stat. Ann. § 21.190).
The Constitution of 1850 as originally adopted contained no provision authorizing the legislature to provide for extension of corporate term of existence. Following the decision in Attorney General, ex rel. Mason, v. Perkins, 73 Mich. 303, decided in January, 1889, there was ratified a constitutional amendment, article 15, § 10, which provided for one or more extensions of corporate life, not exceeding 30 years for each extension. Act No. 328, Pub. Acts 1905, was passed under the authority granted by the constitutional amendment of 1889. The right to ex tend corporate existence was granted to all corporations organized under the general laws of the State. It further provided in section 2 that£ £ a corporation which has thus been renewed shall be the same corporation, and hold and own all the rights, franchises and property held and owned by the corporation before renewal.”
It should be noted that it was not until 1921 that there was any general corporation code in this State. The bridge act of 1851 was not repealed until the general corporation act of 1921. It should also be noted that the bridge act contained no authority for extension of corporate existence. In our opinion the 1905 act authorized the extension of existence of' corporations organized under the bridge act of 1851.
Plaintiff cites Rockwith, ex rel. Kerns, v. State Road Bridge Co., 145 Mich. 455, as authority for the proposition that corporations organized under the bridge act of 1851 do not have the right to extend their corporate existence. In the above case the bridge company was organized in 1875, prior to the 1889 constitutional amendment. This case does not decide whether a bridge corporation incorporated subsequent to the 1889 constitutional amendment and the 1905 act could be extended under the 1905 act. Furtherpnore, in this case although there was no limitation of time - stated in the franchise it was granted to the bridge company and not to its successors and assigns. It was there said:
11 Conceding that the action of the board of supervisors was regular, we think it very clear the board of supervisor's did not intend to grant, and the gran-1 tee did not suppose they were getting, a franchise for a longer period of time than the life of the corporation. ”
In the case at bar, the grant was to Peter N.. Jacobsen and to his successors when incorporated, and to his heirs and assigns and to Crosse lie Railway Company and to “its successors and assigns.” It contained no limitation of time that the franchise was to run. We do not think the Bockwith Case is controlling in the case at bar for the reasons above suggested.
In City of Benton Harbor v. Michigan Fuel & Light Co., 250 Mich. 614 (71 A. L. R. 114), the principle of law was established that if a franchise runs to a corporation and to its successors and assigns without limitation of time, the renewal of the corporate life of the corporation also extends the life of the franchise so granted. However, at the time defendant, in the case at bar, was incorporated in 1912, the 1908 Constitution of Michigan provided in article 8, § 29: ’
“No franchise or license shall be granted by any municipality of this State for a longer period than thirty years, ”
Defendant urges that the franchise is a State franchise with no limitation upon the period that such franchise may be exercised other than as limited by the period of its corporate' existence.
The trial court’s views upon this question read as follows:
“It is therefore my opinion that the franchise is a State franchise and the county is the agent of the State, authorized by law to grant the franchise, and can only act as agent of the State within the powers conferred upon it by legislative enactment. ’ ’
In the City of Niles v. Michigan Gas & Electric Co., 273 Mich. 255, we said:
“The grant of a franchise is an exercise of the sovereign power of the State, vested in the legislature. The power may be delegated to municipalities but, wheu so delegated, the municipality exercises it as agent of -the State and upon the conditions prescribed by law., 26 C. J. pp. 1013, 1024 et seq.; 12 R. O. L. p, 186. Sections 25 and 29 [Qpnst. 1908, art. 8] do not purport to withdraw from the legislature its sovereign power over franchises and confer it upon municipalities. They dó no more than establish limits of time and conditions of irrevocability'of such franchises as the legslature may delegate- to municipalities the power to grant.”
In our opinion the franchise to collect tolls acquired by the bridge company under the provisions of Act No., 83, Pub. Acts 1851, was an exercise of the power of the State with certain duties delegated to the board of supervisors. The board of supervisors gave consent to the erection of the bridge. The' duty of fixing tolls was not a grant 'of power which the board might exercise or decline to exercise. Once the consent- was given, the duty to fix tolls became mandatory by virtue of the act. The board in giving assent acted as a representative of the State and in the ’interests of the general public.
In view of the fact that the franchise is a State franchise, article 8, § 29, of the Constitution of 1908, has no application. As we have found that the bridge company has the right to renew its corporate life,- under Act No. 328, Pub. Acts 1905, it follows that when the board of supervisors gave its consent to the operation of the bridge without term limitation, the right so granted must continue in effect' throughout the corporate life of the grantee.
The judgment of the circuit court is reversed and a judgment will be entered therein, dismissing the information filed in this cause. A public question being involved, no' costs are awarded.
■Btjshnell, and Dethmees, JJ., concurred with Sharpe, J.
See 2 Comp. Laws 1929, § 11110 et seq. (Stat. Ann. § 22.201 et seq.). — Reporter. | [
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Bushnell, J.
Plaintiff’s decedent, Nelson L. Bard, was a laborer employed in the woods near Roscommon. On'June 20, 1945, at about 8:30 o’clock in the evening, Bar’d was driving north on US-27 with another man on their way to work in the woods. Trooper Sweet and Corporal Glassford were patrolling south toward Roscommon in a State police car. The officers noticed Bard’s car coming toward them with only one headlight burning and turned around to investigate. Bard pulled off the highway and, while attempting to fix his headlight, the State police pulled up about 3 feet behind him. Trooper Sweet got out and gave him a traffic violation ticket. As Sweet returned to his car, Bard followed him, partly opened the police car door, stepped inside the angle made by the open door, and began a conversation with driver Sweet. •
"While Bard was talking, facing east, a truck driven by defendant Peter Burns, approaching from the south, struck the half open door of the police car and threw Bard about 40 feet forward, his- body landing in front of his own . car. .Bard'never regained consciousness and died in the Grayling hospital'at 2:55 o’clock the following morning. The Burns truck came to a stop approximately 236 feet north of the point of impact.
The police car, according to the officers, was standing on the shoulder of the road with its left front tire 22 inches from the edge of the pavement. According to Burns, the left -wheels of the police car were about one foot on the pavement.. The weather was clear and the pavement was dry. The accident occurred at about the middle of a straight, level stretch of highway where approaching cars could be seen a mile in either direction.
At the close of plaintiff’s case, defendant, relying on Ebel v. Bruzewski, 296 Mich. 654, asked for a directed verdict on the ground that plaintiff had not established Bard’s freedom from contributory negligence. The trial judge ruled, however, that this question should be submitted to the jury without prejudice to a renewal of the motion following the verdict. At the close of defendant’s case, plaintiff did not ask for a directed verdict but did file certain requests to charge. At the conclusion of the charge the trial judge offered another opportunity by asking counsel, “Is there anything I have overlooked?” After the jury returned a verdict in favor of the defendant, plaintiff made a motion for a new trial, which was denied.
On appeal, plaintiff argues that the court should have directed a verdict against the defendant as a matter of law. He contends that the jury should have been instructed that plaintiff’s decedent was presumed to be free from contributory negligence except in so far as there was testimony by eyewitnesses to, the contrary.' He assigns as error- the court’s failure to instruct the jury that even though the open door of the police car did extend somewhat over the edge of the pavement, defendant was guilty of negligence in not observing, the same. Finally he asserts that the verdict is contrary to the great weight of the evidence and that the court erred in denying the motion for a .new trial.
Defendant testified that he had been drinking, and there seems to he no question'as to his negligence. Decision turns on whether decedent was free from contributory negligence either by reason of. the proofs or as a matter of law. It cannot he asserted that the trial court was in error in failing to direct a verdict for the plaintiff, because no request of this nature was made. Moon v. Quick, 284 Mich. 441. The trial judge’s charge to the jury was a full and impartial statement of all the factual and legal issues presented.
The police officers testified that they heard the Burns truck approaching and could hear the “whining of the tires on the pavement.” Bard, so far as they observed, did not look to the south or pay any attention, although it is reasonable to presume he also heard the on-coming truck.
No precise rules can he laid down by which all acts of contributory negligence can be measured, and each case must depend upon its own particular facts. Batchelor v. Famous Cleaners & Dyers, Inc., 310
Mi fib. 654, 658. Decedent’s contributory negligence .was a question for the jury. Pearce v. Rodell, 283 Mich. 19; Ebel v. Bruzewski, 296 Mich. 654. This question was submitted to the jury under a proper charge. While we might have reached a different conclusion if we had been the triers of the facts, we cannot say, as a matter of law, that .the verdict of the jury was contrary to the great weight of the evidence. McDuffie v. Root, 300 Mich. 286, 298.
Plaintiff did not request that the jury be -instructed that his decedent was free from contributory negligence, although given an opportunity to do so at the close of the court’s instruction. In the absence of such a -request, failure to so charge is not error. Stewart v. Eghigian, 312 Mich. 699, 706; Court Rule 37, § 9 (1945). See, also, Anderson v. Kearly, 312 Mich. 566, 573.
Under the circumstances presented in this case the presumption of freedom from contributory negligence does not exist. Fairchild v. Railway Co., 250 Mich. 252, 260.
This Court is not the trier of the facts and the instant record does not justify the substitution of our judgment for that of the jury. The judgment is affirmed, with costs to appellee.
Carr, C. J., and Butzel, Sharpe, Boyles, Beid, North, and Dethmers, JJ., concurred. | [
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McAllister, J.
On December 16,1927, the Stephens Lumber Company filed a mechanics’ lien upon premises owned by Ralph Martin and Florence Martin, his wife. Approximately 14 months thereafter, on February 15, 1929, the lumber company filed a bill to foreclose the lien. Default was taken May 29, 1931, and a decree entered on the same day in favor of the lumber company. The premises were sold August 18, 1931, and the sale was confirmed August 31,1931.
Thereafter the lumber company was adjudicated a bankrupt and the Union Guardian Trust Company was appointed trustee. The trustee in bankruptcy sold the premises upon which decree of foreclosure had been taken to William Fox on April 13, 1937. On September 30, 1937, Fox filed his petition for a writ of assistance to obtain possession of the premises. In judgment creditors’ proceedings against the Martins in the circuit court for the county of Macomb an order had previously been entered appointing Alton H. Noe receiver of the said property. On answer and motion filed to plaintiff’s petition for' writ of assistance, the trial court dismissed such petition, holding that inasmuch as the bill to foreclose the mechanics’ lien was filed more than one year after the filing of the lien, the pro confesso decree was a nullity and that a court of equity would not issue a writ to assist in the enforcement of a decree which it had no power to enter. On appeal plaintiff claims that the decree of foreclosure was res judicata; that the court had general jurisdiction to enter the same; and that the writ of assistance should be granted.
Mechanics ’ liens are strictly statutory. Their validity and enforcement are restricted to the narrow confines of the legislative act by which they are created.
The statute (3 Comp. Laws 1929, § 13109 [Stat. Ann. § 26.289]), which was in force at the time the said lien was filed, provided:
“The several liens herein provided for shall continue for one year after such statement or account is filed in the office of the register of deeds, and no longer unless proceedings are begun to enforce the same as hereinafter provided
The statute, therefore, provided not only for the creation and existence of a lien, but for its termination unless proceedings were commenced within one year of its filing.
From the allegations in the bill of complaint, it appeared that the claim of lien had been filed more than a year before the commencement of the suit to foreclose. According to the statute, there was no lien in existence at the time of commencóment of such suit. The proceedings to foreclose are provided for by statute. Without such statute there would be neither lien nor right to foreclose.
There was, therefore, no lien in existence at the time the bill was filed on which foreclosure could operate. The subject-matter, for which foreclosure was provided by statute, had vanished. The court was not authorized by law to act in proceedings to foreclose, where the lien had disappeared; and because foreclosure of a mechanics’ lien is purely statutory; the court could acquire no jurisdiction where on the face of the bill of complaint, it appeared that the rights sought to be enforced, were not only not provided for in such statute but were nonexistent.
“As power over the subject-matter is given by law, nothing but an additional grant from legislative authority can extend that power over a class of cases formerly excepted; and neither the acquiescence of the parties, nor their solicitations, can authorize any court to determine any matter over which the law has not authorized it to act.” 1 Freeman on Judgments (5th Ed.), p. 676, § 337.
" The source and general extent of jurisdiction are to be found in the inherent powers of the court or the positive provisions of the law. It is there we must look to see whether the question or matter in controversy is one which the court may in any case entertain. But it is not enough that the court’s powers may be found broad enough in the abstract to cover the class of litigation to which the case in question belongs. Mere possession of power to act in respect to a specific subject-matter is of no consequence unless that power is properly invoked. For jurisdiction of the subject-matter of a particular case is something more than the constitutional or statutory power to entertain cases of the general class to which the one in hand belongs; it is that power called into activity, not by the court of its own motion for that would ordinarily be insufficient, but by some act of the suitor concerned and in some mode recognized by law.” 1 Freeman on Judgments (5th Ed.), p. 677, § 338.
Jurisdiction does not depend upon the facts, but upon the allegations.
In Regina v. Bolton, 1 Ad. & El. (N. S.) 66, 72 (113 Eng. Rep. 1054), it was said:
“Where the charge laid before the magistrate, as stated in the information, does not amount in law to the offense over which the statute gives him jurisdiction, his finding the party guilty by his conviction in the very terms of the statute would not avail to give him jurisdiction. * * *
“The question of jurisdiction does not depend on the truth or falsehood of the charge, but upon its nature: it is determinable on the commencement, not at the conclusion, of the inquiry. ’ ’
“Jurisdiction always depends upon the allegations and never upon the facts. When a party appears before a judicial tribunal and alleges that a certain right is denied him, and the law has given the tribunal the power to enforce that right his adversary being notified — it must proceed to determine the truth or falsity of his allegations. The truth of the allegations does not constitute jurisdiction. The tribunal must have jurisdiction before it can take any adverse step. Its jurisdiction, necessarily, has to be determined from the allegations, assuming them to be true.” Vanfleet’s Collateral Attack, p. 76, § 60.
In Goldberg v. Levine, 199 App. Div. 292 (192 N. Y. Supp. 124, 127), where a landlord attempted before expiration of a lease to resort to proceedings provided by statute for summary removal of the tenant before expiration of the lease, the court said:
“The law is well settled that, where a court is authorized by statute to entertain jurisdiction in a particular case only, if it undertakes to exercise jurisdiction in a case to which the statute has no application, such court thereby acquires no jurisdiction and its judgment or determination when made is a nullity and-will be so treated whenever called in question by either direct or collateral attack.”
In Murray v. American Surety Co. of New York, 17 C. C. A. 138 (70 Fed. 341, 346), proceedings were instituted under the bank commissioner’s act which authorized the court to enjoin the further carrying on of business by the bank. The lower court, in en joining such business, appointed a receiver. The statute contained no provision authorizing such appointment. When the jurisdiction of the court to make such appointment was attacked in collateral proceedings, the court said:
“The judgment of a court having no jurisdiction of the subject-matter or the parties, or the exercise of a power by the court not authorized by the statute in purely statutory proceedings, is utterly null and void, and may be collaterally assailed.”
In Jackson City Bank & Trust Co. v. Frederick, 271 Mich. 538, 544, this court said:
“When there is a want of jurisdiction over the parties, or the subject-matter, no matter what formalities may have been taken by the trial court, the action thereof is void because of its want of jurisdiction, and consequently its proceedings may be questioned collaterally as well as directly. They are of no more value than as though they did not exist. ’ ’
The foreclosure of a mechanics’ lien is purely statutory. The lien, in the instant case, having automatically ceased to exist by operation of the statute, there was nothing upon which foreclosure proceedings could operate. It appearing on the face of the bill of complaint that the lien was void, the court had no jurisdiction in such statutory proceeding to grant a decree of foreclosure. The assumption of jurisdiction by the court entering the decree was not authorized by the statute; such decree is null and void.
The order of the trial court denying plaintiff’s petition for writ of assistance is affirmed, with costs to defendants.
Bttshnell, Sharpe, Potter, Chandler, and North, JJ., concurred with McAllister, J. | [
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Wiest, C. J.
Natural gas, escaping from a fracture in defendant’s high pressure inter-city main in the street in front of plaintiff’s house, seeped through the earth, into the basement of that home and exploded when plaintiff burned some papers in the furnace; she was seriously injured, brought this suit to recover damages and, upon trial by jury, had verdict and judgment.
The main was properly installed and the fracture thereof was without defendant’s fault.
Right of recovery of damages turns upon the question of whether defendant had notice, actual or constructive, of such escaping gas and failed to make reasonable investigation.
About three hours before the explosion a neighbor, whose home was about 224 feet distant from plaintiff’s, found gas in the basement of his home and notified defendant’s local manager who at once sent an experienced service man to make investigation. Upon investigation the service man pronounced it sewer gas, cemented the place of its entrance through the basement wall and the sewer pipe, leading to an old cesspool or septic tank which had been retained as a receptacle for kitchen sink drainage only. He also visited an adjoining house where he found like gas in the basement and closed the place of its entrance.
The jury evidently found that it was defendant’s natural gas in the neighbor’s basement, and the service man was mistaken in thinking it sewer gas and negligent in not making further investigation and ascertaining whether the gas was present in another neighbor’s house, including plaintiff’s, and giving warning to avoid an explosion. There was evidence and circumstances supporting such a finding.
The opinions of witnesses, having experience in such matters, that defendant’s service man made adequate investigation did not close such issue but went to the jury along with the disclosed circumstances and we find no reason for disturbing the verdict.
The mistake of the service man and consequent cessation of investigation does not release defendant from liability for it is bound by what, in reason, he should have discovered, and consequent measures which, should have been taken to protect endangered persons.
Errors alleged in admission of medical testimony relative to possibility of infection following severe burns and instruction to the jury as to claims of plaintiff have been examined and do not call for reversal.
The judgment is affirmed, with costs to plaintiff to be taxed.
Bushnell, Sharpe, Potter, Chandler, and Mc-Allister, JJ., concurred. Butzel and North, JJ., did not sit. | [
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North, J.
This suit is for commissions claimed by plaintiff on tbe sale of liquor by defendant to the Michigan Liquor Control Commission during a period covered by a contract which plaintiff claims he had with defendant as its Michigan representative for a period of two years ending March 6, 1937. Plaintiff claims that in March, 1936, defendant wrongfully terminated the agency, and this suit is for the commissions on liquor sales during the unexpired term of the alleged contract. It also involves a few other minor items. The sales for the period in controversy were made through Seagram Distillers Corporation, acting as an agency for defendant in the capacity formerly occupied by plaintiff. Defendant answered and made a motion to dismiss. Plaintiff filed a motion for summary judgment with affidavits in support thereof. Defendant filed affidavits of merits. These two motions were heard simultaneously. On an adjourned day of the hearing the circuit judge, a jury having been waived, disposed of the case on its merits over defendant’s objection. He denied defendant’s motion to dismiss and rendered a judgment for plaintiff in the amount of $5,125.30. Defendant has appealed.
Appellant asks reversal for the reason that on this hearing of plaintiff’s motion for summary judgment it developed there was a controversy as to at least one material issue of fact: i. e., the amount of damages. Appellee claimed that the attorneys had entered into a written stipulation which controlled the amount of damages to be recovered by plaintiff in event the alleged agency was found; and therefore there could be no controverted issue of fact on the damage phase of the case. The stipulation upon which appellee relies reads as follows:
“It is hereby stipulated and agreed, by and between the parties to the above entitled cause, by their respective attorneys, that if a contract exists as alleged in the plaintiff’s declaration that plaintiff is entitled to recover damages for the breach of said contract, and that, subject to check for accuracy, the number of cases specified in the affidavit of the secretary of the Michigan Liquor Commission attached to the motion for summary judgment will be accepted by defendant as correct.”
Early in the hearing before the circuit judge it was apparent that the attorneys for the respective litigants were not in accord as to the purport of the above stipulation. In brief, appellant’s counsel pointed out that the stipulation provided only that in event the alleged agency was found to exist recovery of damages for its breach would be based upon the number of cases of liquor shown to have been sold to the Michigan Liquor Control Commission by the affidavit of the secretary of that commission. While it was an undisputed fact that plaintiff’s rate of commission was seven shillings (approximately $1.71) per case, we are unable to find in this record that it is stipulated or anywhere conceded to be the fact that plaintiff’s damages, in event of recovery, should be computed at the rate of seven shillings per case. Instead it appears from the record that defendant claimed plaintiff would have been subjected to expense in making the sales and therefore his actual loss or damage would be the net profit or commission per case. What this amount would be, nowhere appears in this record. There was no equivocation about the position of appellant’s counsel, who at the outset of the hearing stated to the court and opposing counsel:
“I don’t want to be misunderstood now, as agreeing, as a matter of law, that the damages amount to seven shillings a case. * * *
“The Court (interrupting): The stipulation certainly did not cover that.
“Mr. Streeter: No. I will agree to this, that if there is a contract in existence as plaintiff alleges, that the commission to be paid was seven shillings per case. * * * Now, whether that commission is the final measure of damages or not, is a matter for the court. I don’t know.”
In an affidavit in support of plaintiff’s motion for summary judgment it is stated:
“That in the taking of said orders, had plaintiff taken them and in handling all business incidental thereto, the plaintiff would not have incurred any further or additional expense, and that the said plaintiff was entitled to the commission of seven shillings per case upon said business.”
This material fact stated in plaintiff’s affidavit is contradicted in one of the affidavits of merits filed for defendant wherein it is said:
“And deponent further says that in connection with said woi’k it was necessary for, and required of, the plaintiff that he expend such sums as are incidental to the conduct of such business.”
And in a supplemental affidavit of merits a further showing is made that plaintiff’s successor in the agency in making the sale of the liquor upon which plaintiff now asserts the right to recover a commission, expended large sums of money.
Appellee’s contention as to the proper construction to be placed upon the stipulation hereinbefore quoted cannot be sustained; and it is too clear for argument that there was a disputed issue of fact which was essential to determination of plaintiff’s suit.
Either by reason of adopting appellee’s construction of the stipulation, or because he understood that counsel for defendant in open court consented thereto, the trial judge concluded that notwithstanding the matter originally came to him on motion for summary judgment, he could and would proceed to dispose of the case on its merits. With that in mind he tendered opportunity to defendant’s counsel to produce proof. Counsel declined to do so, at least none was produced. The record is conclusive that this case had not been assigned for hearing on the merits. Instead the praecipe for its hearing was being held on the pretrial call, awaiting the disposition of this motion for summary proceedings, this being in accordance with the practice established by rule in Wayne county. We are constrained to hold that the trial judge was in error in proceeding to dispose of this case on the merits, after it developed that decision in the case necessarily involved determination of a controverted issue of fact.
“The province of the court, on motion for. summary judgment, is to determine judicially whether there is an issue of fact which, if resolved in favor of defendant, would preclude a verdict for plaintiff in whole or in part of his demand.” Baxter v. Szucs, 248 Mich. 672.
See, also, Peoples Wayne County Bank of Dearborn v. Harvey, 268 Mich. 47; Maser v. Gibbons, 280 Mich. 621. In this latter case we said:
“Court Rule No. 30 (1933), is determinative in applications for summary judgments, and one should not be entered where an issue as to a material fact is raised by the pleadings and affidavits. McDonald v. Staples, 271 Mich. 590.”
For the reason hereinbefore indicated the judgment entered must be vacated and the case remanded for trial. Costs to appellant.
Wiest, C. J., and Bushnell, ' Sharpe, Potter, Chandler, and McAllister, JJ., concurred. Butzel, J., did not sit. | [
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Boyles, J.
Plaintiff filed a bill of complaint in the circuit court for Wayne county in chancery alleging that prior to 1931 he had been engaged in business as a sales representative and manufacturer’s agent in the sale of various merchandise and products for manufacturers, and that the defendant has also been engaged in á like occupation; that in 1931 they entered into an.agreement to become partners in such business; that they carried on such business connection until April 15, 1944, at which time the defendant informed the plaintiff that he intended to terminate their business relationship, and did so. Thereupon plaintiff filed the instant bill of complaint praying for a dissolution of the alleged partnership, the appointment of a receiver, and an accounting. The defendant denied the existence of a partnership, claimed that plaintiff was in his em ploy on a commission basis, and that he had terminated .such, employment on April 15,1944, because of plaintiff’s immoderate use of alcoholic beverages and neglect of business.
During an extended bearing in circuit court tbe parties agreed that before any proofs were takpn with reference to an accounting, tbe proofs should be limited to tbe principal issue whether the arrangement between tbe parties constituted a partnership. At tbe conclusion of much testimony, tbe trial court entered a decree to tbe effect that plaintiff and defendant were partners, appointed a receiver, and ordered a reference to a circuit court commissioner for an accounting. . Tbe defendant was directed to turn over to tbe receiver all assets, books and records, and tbe conduct of tbe business until further, order of tbe court. Tbe decree was stayed on tbe filing of an appeal bond and tbe defendant appeals.
Tbe sole question here for decision is whether plaintiff has sustained tbe burden of proving tbe existence of a copartnership. Plaintiff disclaims that'their arrangement was a joint venture, nor does plaintiff claim that be is entitled to specific performance of any alleged agreement to pay him commissions on business procured. Tbe voluminous record must be reviewed to determine whether plaintiff has met bis burden of proof, and we review the matter de novo. It becomes necessary to examine all of tbe facts and circumstances of tbe association between tbe parties. Courts have not been able to lay down any general rule which will afford an automatic solution of tbe question of a partnership as distinguished from an employment. For various situations' considered and cases discussed, see a lengthy annotation to Sheldon v. Little, 111 Vt. 301 (15 Atl. [2d] 574), found in 137 A. L. R. 6-174.
In 1928 the defendant had been engaged in the sale, to" various factories in Detroit and vicinity, of leather belting on commission. His supplier was the I. B. "Williams company. In 1928 plaintiff had a desk in the defendant’s office in Detroit and began, also, to sell the I. B. Williams product on commissions. It is not claimed that they were partners at that time.- Plaintiff was to retain all the commissions that he earned, up to $200. Plaintiff testified that he had several conversations with defendant in 1931, regarding the obtention of the ■ Manhattan Rubber Manufacturing' Division account, a subsidiary of the Raybestos-Manhattan, Inc., selling rubber belting. He claims that a partnership agreement was entered into at that time, and testified to the inception of such an agreement as follows:
“Q. Did you have any other conversation with Mr. DuBard about the same matter, about getting a further or other account? (The Manhattan account)
“A. Yes, sir.
“Q. And where did you have that conversation and when, to the best of your recollection?
“A. Well, it happened a number of times in the office.
“Q. Well, when was one of the times, or the last time, you had a conversation in the office?
“A. Oh, I would say some time in November.
“Q. Of 1931?
“A. Yes, sir.
“Q. And did you and Mr. DuBard sit down and have a talk about the Manhattan Rubber Company account?
“A. At that time, you mean?
“Q. Yes.
“A. I think so. I am sure of it, in fact.
“Q. You are sure of it. And did you talk about the possibility of getting any other account?
“A. Yes.
“Q. All right Now, this is after you had been sharing the office for a couple of years, is that right?
“A. Why, it would be about that time, yes.
“Q. Now, then, in your conversation with Mr. DuBard, in regard to obtaining the account of the Manhattan Rubber Company, or any other account, what did you say to him, and what did he say to you in regard to those accounts, if you got them?
“ A. Well, he said if we can—
“Q. Who said that now?
“A. Mr. DuBard.
“Q. All right.'
“A. I said, ‘If we can get two or three accounts, why we will be pretty well set when this thing picks up.’ He said, ‘That’s right. You and I will go together on them.’
“Q. On such accounts—
“A. As we could get. * * *
“Q. What did he say?
“A. He said, ‘That’s OK with-me.’
“Q. What was OK with him?
“A. To go in on these accounts. '
“Q. Where?
“A. I don’t understand that question.
“Q. You said it was OK with him to go in on these accounts?
“ A. Yes, sir, any we could get.
“Q. What did he say he would go into? What did he say you two men would do in regard to handling these accounts if you got them?
“ A. My way to put it, he said we are going in as partners.”
The defendant denies that anything was said leading the plaintiff to infer they were forming a partnership. That there was no such understand-ing, the defendant testified to a conversation the parties had in 1933 or 1934, as follows:
' “During the years 1932-and 1933, when in addition to the I. B. Williams & Sons monthly state ment, the Manhattan statements started to come in, Mr. Moore and I made monthly computations. Some months he made them; some months I did. After it was ascertained as to how much Mr. Moore had coming, I paid him. The checks from the Manhattan Rubber Company, from their inception, that accompanied their monthly statement, were made payable to W. E. .DuBard. The statements themselves, as prepared, from those that are in evidence, those were made out in the name of W. E. DuBard. From the inception of Mr. Moore’s association with me in the year 1928, in the month of October, through the year 1933, he paid no sum of money whatever towards office expenses. ’ The reasons back in 1928 I kept Mr. Moore associated with me were for several reasons. I liked him very well and another reason is I thought he had great possibilities, or, at least, good possibilities, and he apparently put forth a lot of effort. He seemed to have a lot of courage. I don’t know as I could enumerate any more than that.
“Either in December, 1933 or January, 1934, I had a conversation with Mr. Moore in reference to expenses. The conversation took place in my office. Mr. Collyer (the bookkeeper) was in the office at that time. As I remember the conversation, Mr. Moore said, ‘I have been working out of this place about five years, and you have been giving me a fine break.. I think I ought to stand some of these- expenses.’ He also stated, ‘You have been 'taking a licking and loss during the last few'years business has been bad.’ ”
Mr. Collyer, defendant’s bookkeeper, testified:
“I recall a conversation in the latter part of 1933 between Mr. DuBard and Mr. Moore, wherein I was present, at the office of W. E. DuBard in reference to the matter of expenses.
“Q. Now, Mr. Collyer, do you recall what was said by Mr. Moore in reference to this subject matter of expenses, and what was said by Mr. Du-Bard at that time and place?
“The Coitrt: "Where was the place?
“Q. "Where was the place of the conversation?
“A. That was on Loraine.
11 The Court: The business place?
“A. Yes, sir. "Well, as near as I can recall the conversation, Mr. Moore said, £I have been making my living off these accounts for approximately the last five years and I feel that I should stand some portion of the overhead besides just the delivery expense.’
“Q. "What .was said in reply to that and who spoke?
“A. And Mr. DuBard said that he had been standing the expense and he saw no reason why he shouldn’t stand them, and Mr. Moore said, ‘"Well, 'I want to stand some portion of the expense,’ and Mr. DuBard said ‘"Well, if that’s the case, I will give you the 60 per cent, .on Manhattan.’
UQ. "Was anything said about the expenses?
“A. And 40 per cent.—
“Q. "Well, what did DuBard say, what was his language about the expenses?
“A. "Well, he said, ‘If you want to stand 40 per cent, of'the expense, why I will give you 60' per cent, on the Manhattan account.’
“Q. "What did Mr. Moore reply to that?
“A. He said that would be all right.”
Thereupon it was agreed that plaintiff should have 60 per cent, of the Manhattan commissions and would stand 40 per cent, of the office expenses. This arrangement lasted until 1941, and in the meanwhile other products were added b^ contracts between the defendant and Pyott Foundry & Machine Company (pulleys), Globe "Woven Belting Company, Browning Manufacturing Company, and several others. All manufacturers’ contracts were signed by defendant and in his name alone. The commis sions on most of these were split 50-50 and the expenses were not allocated to them, bnt were shared as a whole on the 40-6.0 basis. Some accounts were handled by each individually and the .commissions on them were not split. This was true of the I. B. Williams company, Universal Paper Bag, Excelsior, Lewellen, and Manhattan bowling balls. Each paid his own automobile, traveling, and entertainment expenses. On the Williams account their usual practice was for each to retain the commissions earned by his ’ own efforts. Plaintiff admitted there was no pooling of these commissions. Regarding another account (Excelsior), plaintiff admitted':
“We both engaged in sales of that company. What he sold he got on that, and what I sold, I got on that. So far as that account was concerned, that • was handled similar to the I. B. Williams account. It was not included in the agreement in regard to these .other accounts that I mentioned. ’ ’
At the time plaintiff claims that a partnership agreement was entered into they were also selling rubber belting for Gates Rubber Company. In. 1931 a former representative for Gates recommended DuBard as a Manhattan representative, and a contract was signed by the defendant. In fact, all such contracts were taken in the name of the defendant alone. Plaintiff first testified that they had been splitting the Gates commissions and expenses, but corrected this later to apply only to the commissions. Defendant testified that they received separate commissions, and this was confirmed by the former Gates representative. The manager of the Manhattan Rubber Division testified that the nego-tiations were with defendant alone. Defendant claims there was no conversation about the manner of handling the account until after the contract with the manufacturer was signed, at which time plaintiff suggested. that as he would be doing most of the selling lie should receive 60 per cent, of the commissions. Defendant did not agree to this, and pointed out that he was paying all of the expenses. They then agreed to split the commissions 50-50. 1
Sometime during their association plaintiff became sales representative for the Universal Paper Bag Company. He kept all of the commissions— defendant got no part of them. His commissions on this account exceeded $§,000 during each of the years 1937 and 1938. On the other hand, the defendant acquired the Lewellen account, and retained all of the commissions. sPlaintiff had no part in it. The defendant also had the business uf selling bowling balls for a division of one of the rubber companies. Plaintiff did not get a commission on this business, paid no part of the expenses, but received some of the profits until 1941, at which time the defendant cut plaintiff off from any further participation in the profits. Their understanding varied widely as between their many accounts. In some, plaintiff received all of the commissions on his own sales. In others, he received nothing. It is a fair conclusion that the split in profits was dictated by the defendant, although apparently the parties reached a satisfactory agreement in, each instance. The fact that plaintiff paid no losses from 1932 is admitted by him. The plaintiff admitted:
“Through this period of time, from 1932 to 1942, there was no month during that period of time wherein I sustained a business loss, where I had to go down in my pocket and pay some money. I made a profit each and every month.”
As to the method of receiving payment for commissions, plaintiff testified:
“DuBard always had a cheeking account from the time I went there, July, 1928, to April 15, 1944. Consistently, in that period, I received checks signed by W. E. DuBard, and in a few instances, Murray Oollyer, drawn on that checking account for my commissions or for my salary — whatever you want to term it — for my part of it. There never was a checking account in the name of Walter Du-Bard and Walter Moore. I take care of my own money. ’ ’
In 1941 plaintiff was ill for somé time. Defendant claimed that he was" drinking too much and not paying attention to business, and a new arrangement was made whereby plaintiff received only 50 per cent, of the commissions. Beginning late in 1941 the defendant took two-thirds of the commissions' on sales of Ilettrick products to the Budd company. In 1942 defendant took 35 per cent, of the commissions on plaintiff’s sales for I. B. Williams.
Ultimately the plaintiff apparently became dissatisfied with their arrangement, complained of the treatment he was getting to Mr. Murray, a .salesihan, and to Miss Keeney, the stenographer, and urged them to look for other jobs. On April 15, 1944, defendant informed the plaintiff that he was discharged. Defendant told plaintiff he would pay himx commissions for the balance of the year on sales to certain customers which plaintiff had procured, and they drew up a list of such customers. A few weeks later plaintiff filed the instant bill of complaint, claiming a partnership.
The legal effect of the loose arrangement between these parties must be determined by the circumstances of their, 15 years of association. Some of the indicia of a partnership are present, many others are lacking. In favor of a partnership, no social security payments were made on plaintiff’s employment by the defendant, nor was any of plaintiff’s income tax withheld by the defendant. However, defendant sent a statement of plaintiff’s withholding taxes (none) to the internal revenue service. All goods were consigned to defendant alone, they were stored in buildings leased by him or in a building held in his wife’s name, and when insurance was not paid by the manufacturer, defendant paid it, as well as the personal property tax. In figuring up the split of commissions, either plaintiff or defendant computed the commissions, usually on the back of invoices,. Apparently little, if any, books or memoranda of accounts were kept as to their transactions with each other. The defendant did the financing. Funds’ were banked in his account which was held jointly with his wife and though the bookkeeper had power to write checks on it, plaintiff did not have. There were occasions when‘plaintiff attempted to refer to the defendant as his partner. The promptness with which the defendant denied a partnership existence leads to a fair inference that there was no such mutual agreement as is necessary to a consummation of a partnership agreement. A witness testified:
“Q. I asked you, witness, did you ever hear Mr. Moore say ‘Me and my partner’?
“A. Oh, yes, I did.
“Q. Now, how many times have you heard him say that, your best recollection?
“A. My best recollection would be 4 or 5 times.
“Q. During what period of time, now, starting what year and ending what year?
“A. From about 1938, shortly after we moved into the new building on Milwaukee, through 1943.
“Q. Through 1943. Now, when he used this phrase, ‘Me and my partner,’ was Mr. DuBard present?
“A. Yes, he was.
“Q. On these occasions?
“A. Yes, sir.
“Q. 'And what reply did Mr. DuBard make to him?
“A. Well, Mr. DuBard said, ‘What do you mean, “Me and my partner.”’ He said,- ‘ You know, I won’t have anyone else in my business. I wouldn’t even have any of my own relations.’
“Q. Did this conversation happen only once, in substance as you testified, or did it happen, as you have said,.4 or 5 times?
“A. 4 or 5 times.
“Q. And the last time you fix in 1943?
Ygs.
‘ ‘ Q. the first time was in 1938 ?
“A. Yes, sir.”
A salesman, Mr. Murray, was hired in 1940. He paid no expenses, and the parties to this action split his commissions between them. But in 1942 when the new arrangement was made plaintiff ceased to share in these commissions, and Murray received a portion of them from the defendant from then on. The question of sharing losses does not seem to have come up, because, as plaintiff remarked, they did not anticipate any losses.
Most of the advertising material carried defendant’s name only, although there had been some with pictures of both men and the motto “The two Walts to serve you.” The sign in front of their establishment bore defendant’s name alone.
On his personal income tax returns plaintiff reported his income under item 1 (salaries, wages, commissions, fees, et cetera), not “net profit from business,” or “income from partnerships.” Attached to plaintiff’s 1941 income tax report is a schedule showing $18,909.16 as “wages from W. E. DuBard.” Plaintiff admitted that these exhibits were copies of his income tax reports. The circuit judge excluded these exhibits on the ground of privilege, that they were irrelevant and immaterial. Plaintiff’s report of income as wages, salary or commissions paid by the defendant is an admission against interest, and is inconsistent with his present claim of a partnership where such income would properly have been reported as profits. We find no sound reason why a court in chancery should refuse to take these exhibits into consideration. While the defendant deducted no social security tax on commissions paid to plaintiff, neither did he do this on commissions paid to other commission salesmen employed by him, but only on salaried employees. The same applies to' withholding tax after this was made effective. However, defendant reported to the internal revenue service as to salaries and wages paid to plaintiff for the year 1942, and of “wages” paid by defendant to plaintiff for the yeár 1943.
Defendant testified that when plaintiff wanted to bring his son into the business he told plaintiff emphatically that they were not partners. This was in 1934 and 1938. Plaintiff was not questioned on this.
Mr. Bass, manager of I. B. Williams, testified as to- an admission by plaintiff in 1943 that he had no interest in the business.
Mr. Murray, a commission salesman for the defendant, testified that when he was hired he had asked who he was working for, as plaintiff seemed to assume a lot of authority, that defendant said he was working for him and that plaintiff was a salesman. Murray testified tlmt on April 15, 1944, during the dispute that followed defendant’s firing of plaintiff, the latter admitted that he was not a partner.
Summarizing the business connection between these parties, the following circumstances, among others, point to the conclusion that there was no partnership agreement:
There was no written agreement during the 15 years of their connection. The business was always carried on under the sole name of “W. E. DuBard, ’’ without exception;
All manufacturers’ agency or sales contracts covering the accounts were solely in defendant’s name. There was no. co-ownership of property;
There was no general agreement to share losses, if any; and the split of profits (commissions) varied with the accounts;
No partnership income tax report was ever made, each making his own individual returns;
There was never a partnership bank account; no partnership books were kept; ■ ■
All commission checks from manufacturers were sent to defendant and were payable to him, and he deposited these in his joint bank account and paid plaintiff by check therefrom;
Personal property such as office furniture and merchandise, except plaintiff’s desk and chair, was defendant’s property. ’ The personal property was assessed and taxed in defendant’s name alone;
There was no mutual agency and joint liability.
One of the most important indicia of a partnership is lacking. No certificate of partnership was ever filed, to comply with the statutory - requirement.
We note, also, that many legal consequences of a partnership do not seem to have been in the contemplation of these parties during their 15 years of business dealings. There is no proof "that either of them represented to those with whom dealings were had that they were partners, thus opening the way to a partnership by estoppel. 2 Comp. Laws 1929, §9856 (Stat. Ann. §20.16). Manufacturers’ contracts were taken by the defendant, and in his own name. If a legal partnership existed, these contracts would not pass to the legal representative of the defendant’s estate in event of his death. The plaintiff, as surviving partner, would have the sole right to possession of the assets of the partnership to wind up the affairs of the partnership and pay over the net results to the legal representative of the defendant’s estate. Grigg v. Hanna, 283 Mich. 443. There seems to be no claim that the private property of either of these parties would be subjected to payment of partnership debts' in event of insolvency of a partnership. There must be a meeting of minds between two or more persons before a partnership (except by estoppel) can exist.
“The burden was on plaintiffs to prove the existence of the partnership they alleged. Have they established the fact of their association with Kirschbaum under an agreement to carry on as co-owners the tailoring business for mutual profit? As between plaintiffs ■ and Kirschbaum the question of whether there was a partnership depended upon intention mutually entertained to be established by facts and circumstances.” Klein v. Kirschbaum, 240 Mich. 368, 371.
“In the consideration of this vexing problem of whether a copartnership was established, it must be borne in mind that the burden of showing its existence is upon him who alleg’es it.” Fletcher v. Fletcher, 197 Mich. 68, 72.
“In approaching the consideration of this question of fact the first and basic principle underlying a copartnership should be held in mind, namely, that' consent of all the parties must be found in order to create such a relation. * # *
“Having also in mind the well-established rule that in an attempt to establish a partnership inter se the burden rests upon him who seeks to prove it, and that it must be established by preponderating evidence, we do not think that this record can be read and the conclusion arrived at that it was the intention of the parties involved to engage in a general copartnership for the purposes set forth by the plaintiff in his bill.” Bush v. Haire, 197 Mich. 85, 87, 88.
The gist of the partnership relation is mutual agency and joint liability. Penner v. DeNike, 288 Mich. 488; Lobato v. Paulino, 304 Mich. 668.
By the uniform partnership act (2 Comp..Laws 1929, §9846, as amended by Act No. 272, Pub. Acts 1941 [Comp. Laws Supp. 1945, § 9846, Stat. Ann. 1946 Cum. Supp. §20.6]), a partnership is defined as follows:
“(1) A partnership is an association of 2 or more persons, which may include husband' and wife, to carry on as co-owners a business for profit.”
There is an absence of proof that these parties, during their dealings, considered themselves as co-owners of the business. Nor would the fact that they were co-owners, or shared gross returns of the business, necessarily establish a partnership. Nor would the receipt of commissions by plaintiff as a share of the profits of the business constitute more than prima facie evidence of a partnership, and if received as wages no such inference obtains.
“In determining whether a partnership exists, these rules shall apply: * * *
“ (2) Joint tenancy, tenancy in common, tenancy by the entireties, joint property, common "property, or part ownership does not of itself establish a partnership, whether such co-owners do or do not share any profits made by the use of the property;
“(3) The sharing of gross returns does not of itself establish a partnership, whether or not the persons sharing them have a joint or common right or interest in any property from which, the returns are derived;
“ (4) The receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business, but no such inference sjiall be drawn if such profits were received in payment: * * *
“(b) As wages of an employee or rent to a landlord.” 2 Comp. Laws 1929, -§ 9847 (Stat. Ann. §20.7).
While mutuality, a meeting of minds, and the intention of the parties, often must be gathered from a consideration of the circumstances,, there are certain indicia of a partnership significantly- lacking-in this case. The absence of such indicia of partnership in the case at bar is strikingly similar to that in Morrison v. Meister, 212 Mich. 516, where the Court, in denying the existence of a partnership, said (p. 519):
‘ ‘ The record is convincing that there was no intention on the part of the defendants to form a partnership. Very few of the indicia of partnerships were present and most of them were absent. This was the only property they had a common interest in; there was no firm name, no firm funds, no firm accounts, no firm letterheads, no firm bank account, no commingling of funds or property, no certificate of partnership filed, no agreement as to losses, no time fixed when it would expire.”
Also quite similar is Cole v. Cole, 289 Mich. 202, where the Court denied the existence .of a claimed partnership in saying (p. 204):
“Defendant had been doing- business under the name of the Independent Oil Company. After plaintiff came back from Augusta, Georgia, there was no change in the firm name, in the firm funds, in the firm accounts, in the firm letterheads, in the bank account, and no commingling of plaintiff’s funds with those of defendant. No certificate of partnership was filed, no agreement was made upon the part of plaintiff whereby he was to share in the profits or the losses, no time was fixed for the continuance of a partnership, and no time fixed for its expiration.”
Although plaintiff here claims a partnership, and disclaims reliance on joint venture, the probability of the existence of a joint venture between these parties as to each of the various manufacturers’ sales accounts does not necessarily constitute a partnership.
‘ ‘ The law governing this case is stated in the leading case of Beecher v. Bush, 45 Mich. 188 (40 Am. Rep. 465), as follows:
“ 'Except when one allows the public or individual dealers to be deceived by the appearances of partnership when none exists, he is never to be charged as a partner unless by contract and with intent he has formed a relation in which the elements of partnership are to be found. And what are these? At the very least the following: Community of interest in some lawful commerce or business, for the conduct of which the parties are mutually principals of and agents for each other, with general powers within the scope of the business, which powers, however, by agreement between the parties themselves, may be restricted at option, to the extent even of making one the sole agent of the others and of the business. ’
“See, also, Canton Bridge Co. v. City of Eaton Rapids, 107 Mich. 613; Dutcher v. Buck, 96 Mich. 160. (20 L. R. A. 776). Under this rule parties interested in a joint venture are not partners unless one of them has '(to quote other language from the opinion in Beecher v. Bush) 'clothed the other with an agency to act on his behalf in this business.’ Tested by this rule there was no partnership.” Brotherton v. Gilchrist, 144 Mich. 274, 276, 277 (115 Am. St. Rep. 397).
Weighing the entire circumstances shown by the record, we can not escape the conclusion that the plaintiff has failed to sustain the burden of proving the existence of a partnership arrangement or agreement with the defendant. We are not called upon to determine whether the dealings between the parties constituted a joint venture as known in the law, nor whether the defendant might have been held liable for breach of an implied contract to pay plaintiff a share.of commissions on business done since April 15, 1944, on the business transactions obtained through plaintiff’s efforts. • On the question before us, we conclude that the record does not support the decree entered in the circuit court.
A decree may be entered dismissing the bill of complaint, with costs of both courts to appellant.
Carr, C. J., and Btjtzel, Btjshnell, Sharpe, Reid, North, and Dethmers, J<J., concurred.
See 2 Comp. Laws 1929, § 9929 et séq., as amended by Act No. 273, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 9932 et seqy Stat. Ann. §20.111 et seq.).—Reporter. | [
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Boyles, J.
This case involves the construction of sections 6 and 8 of Act No. 312, Pub. Acts 1929 (1 Comp. Laws 1929, § 2275 et seq. [Stat. Ann. § 5.2131 et seq.]), called the metropolitan district act, and relates to the proceedings for incorporation of a metropolitan district. Plaintiff, by leave of the attorney general, has filed in this Court an information in the nature of quo warranto to require the defendants to show cause by what warrant the defendant Landeh Metropolitan District claims to be a body corporate and by what warrant the other defendants claim to exercise the powprs and privileges of commissioners of said district.
On February 21, 1944, pursuant to section 6 of .said act (1 Comp. Laws 1929, § 2280 [Stat. Ann. § 5.2136]), the township board of Lansing township, Ingham county, passed a resolution stating that the township desired to become a part of a metropolitan district composed of said township and all or parts of the townships of Delhi and Meridian in Ingham county, DeWitt township in .Clinton county, Delta township in Eaton county, and the city of East Lansing in Ingham county. On March 19th the Delhi township board passed á resolution stating the desire of the township to become a part of such a district. East Lansing and the other townships did hot act. Charter commissioners were 'appointed, and steps taken to submit a charter to the ¿lectors to form a metropolitan district composed of Lansing and Delhi townships, in accordance with section 7 of the said act. At an election on April 2, 1945, the charter was rejected by both townships. Petitions were then received from more than five per cent, of the electors of a certain part of said Delhi township, requesting that said part be included in such a district. The charter commissioners proceeded to draw up a revised charter to cover only Lansing township and said part of Delhi township. On November 5, 1946,, the revised charter, was submitted to the electors of the areas affected by said charter and was passed. On April 14, 1947, the present information in the nature of quo warranto was filed by the attorney general, on the relation of James B. Trahair, a resident taxpayer of Delhi township, questioning the legal existence- of said district.
Plaintiff’s first claim is, that the notice of the second election, though properly posted, was. published on Petober 13, 1946, a Sunday, was therefore invalid, and that it rendered the election a nullity. 2 Comp. Laws 1929, §9078 (Stat. Ann.'§ 18.851), expressly forbids many acts on Sunday, including “any manner .of labor, business, or work,” except “works of necessity and charity.” 3 Comp. Laws 1929, §«14088 (Stat. Ann. §27.755), forbids service of process on that day. But the publishing of such notice on Sunday is not expressly forbidden by statute in this State and the weight of authority supports the conclusion that it is not service of process, or a judicial act as that term is generally interpreted. The following authorities support the conclusion that publication of such notice on Sunday does not invalidaté the proceedings: Hastings v. Columbus (notice of proposed street improvements), 42 Ohio St. 585; State, ex rel. Hay, v. Alderson, 49 Mont. 387 (142 Pac. 210, Ann. Cas. 1916 B, 39,); Nixon v. City of Burlington (notice of municipal contract and proposed special assessment), 141 Iowa, 316 (115 N. W. 239, 18 Ann. Cas. 1037); Knoxville v. Knoxville Water Co. (notice of ordinance), 107 Tenn. 647 (64 S. W. 1075, 61 L. R. A. 888), affirmed 189 U. S. 434 (23 Sup. Ct. 531, 47 L. Ed. 887); City of Denver v. Dumars (creation of sewer district), 33 Col. 94 (80 Pac. 114); Barber Asphalt Paving Co. v. Muchenberger (proposed, paving ordinance and special assessment), 105 Mo. App. 47 (78 S. W. 280). To these may be added Eason v. Witcofskey (notice of escheat), 29 S. C. 239 (7 S. E. 291), and State, ex rel. Fisher, v. District Court, 110 Mont. 61 (99 Pac. [2d] 211). The latter case goes further than the question presented here, in upholding constructive service of process on Sunday, as distinguished from personal service. Annotations may be found at 13 A. L. R. 667, and 50 Am. Jur. § 83, pp. 866, 867. The annotations, as well as the Knoxville and City of Denver Cases, supra, specifically distinguish the cases in which a publication of notice was held to be in the nature of process.
Under the circumstances of this case the publication of the notice of election, on Sunday, does not render the proceedings a nullity.
The second question concerns the validity of the action by the commission after the first charter was rejected by the electors. Plaintiff claims invalidity in that after the election at which the first charter was rejected, the township boards did not again by resolution express their desire to become a part of the district proposed in the revised charter. It would seem unnecessary for the Lansing township board to have done so, since it had already proposed inclusion of Lansing’ township in a district composed -of all or parts of the other townships. Plaintiff’s contention with respect to Delhi township rests upon the provision in section 6 which authorizes the township board to act, upon the petition of five per cent, of the electors in a portion of a township. But the revision of the charter was not performed under the provisions in section 6. Rather, as defendants point out, section 8 of the act specifically authorizes the charter commission to revise the charter and the area covered, and to resubmit it to the electors of the revised areas, after an initial rejection. The action of the commission was in accordance with section 8 of the aet. Plaintiff’s position is further confounded by the fact that the township boards of Lansing and Delhi townships met in joint session, after the first chárter was rejected by the electors, and after the petition for incorporation in a metropolitan district with Lansing township was filed by five per cent, of the registered voters of the part of Delhi township here involved. The township boards of both townships, by resolution, then approved the formation of such a district, and. requested the charter commission- to resubmit the proposition, expressly approving of the formation of the defendant Landel Metropolitan District to consist of Lansing township and the proposed part of Delhi township. After the revision, both boards by resolution gave approval to the work of the commission and to the charter as revised. Under the circumstances, the proceedings to initiate the defendant Landel Metropolitan District, and the affirmative vote of the electors of said district, are not void by reason of the grounds for invalidity asserted by plaintiff. .
Furthermore, after a question has been submitted to and approved by the electors, substantial compliance with the preliminary steps has often been held to be sufficient. Thomas v. Kent Circuit Judge, 116 Mich. 106; City Commission of Jackson v. Hirschman, 253 Mich. 596; County of Bay v. Hand, 257 Mich. 262; City of Jackson v. Commissioner of Revenue, 316 Mich. 694.
Defendants add a question that plaintiff’s information should be dismissed for the reason- it was not filed within 30 days after the election which plaintiff seeks to avoid, relying on 3 Comp. Laws 1929, §§ 15298,15299 (Stat. Ann. §§ 27.2342, 27.2343), which provide:
“A petition may be filed in the circuit court of any county of this State whenever it shall be made to appear that material fraud or error has been committed at any election in such county at which there sháll have been submitted any constitutional amendment, question,* or proposition to the electors of the State or any county, township -or municipality thereof.
“Such petition shall be filed within 30 days after such election by the attorney general or the prosecuting attorney of the proper county on his own relation, or on the relation of any citizen of said county without leave of the court, or by any citizen of the county by special leave of the court or a judge thereof. Such petition shall be filed against the municipality wherein such fraud or error is alleged to have been committed.”
The eases on which defendants rely refer to proceedings started in circuit court, Youells v. Morrish, 218 Mich. 194; Anderson v. Levin, 218 Mich. 225; Voorhies, ex rel. Bradburn, v. Nier, 222 Mich. 374. See, also, Heidelmeyer v. Village of Oakwood, 222 Mich. 331; Fulton Township School District, Gratiot County, v. School District No. 4 Fractional, Essex Township, Clinton County, 302 Mich. 566; Lake v. Township of North Branch, 314 Mich. 140. None relates to original jurisdiction in this Court in quo warranto proceedings, concerning which the Michigan Constitution (1908), art. 7, §4, provides:
“The Supreme Court shall have a general superintending control over all inferior courts; and shall have power to issue writs of .error, habeas corpus, mandamus, quo warranto, procedendo and other original and remedial writs, and to hear and determine the same. In all other cases it shall have appellate jurisdiction only.”
See, also, 3 Comp. Laws 1929, § 15271 (Stat. Ann. § 27.2315).
The necessity for an early decision in the instant matter is urged by the parties, to settle (questions, that may relate to taxation and bond issues. Under the circumstances this Court will entertain juris diction of the proceeding. In People, ex rel. Bennett, v. Benfield, 80 Mich. 265, ah original proceeding by qno warranto in this Court, it was said (p. 267):
“We consider the question raised (right to office) of sufficient public importance to be entertained and passed upon. * * *
“No objection was made to the entertaining of the proceedings in this Court until the day of argument; and we shall, therefore, consider the case as if none'had ever been made, as the objection only relates to the propriety of the proceedings being instituted in the circuit court, rather than here. While that court, as we have before intimated in other cases of like nature, would have been a more appropriate tribunal to determine the right of relator to the office, still this Court has jurisdiction in the case, and, under the circumstances, will exercise it. ”
The writ is denied and the information dismissed, but’ without costs, questions of public nature being involved.
Carr, C. J., and Butzel, Bushnell, Sharpe, Reid, North, and Dethmers, JJ., concurred. | [
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Boyles, J.
This is a law action brought by the Michigan unemployment -compensation commission in the circuit court for Marquette county to collect delinquent contributions, damages and interest claimed to be due the commission under the unemployment compensation act. . The defendants pleaded as an affirmative defense that the claim was barred by the statute of limitations. The case was submitted to the court without a jury on stipulated facts, and judgment was entered for the defendants.
Plaintiff appeals, mainly on the claim that the, trial court erred in holding that the action was barred by the statute of limitation in the act.
The essential facts are stipulated. Defendants have been conducting a collection business in Marquette since 1927. Due to a misapprehension as to what- employment should be included in considering whether they were employing eight or more persons for some part of each of 20 different weeks during the calendar years 1938 and 1939, the defendants did not file any returns with the commission or make any payments to the unemployment compensation fund, for those years. On January 18, 1943, a field advisor of the commission completed a report of the defendants’ employment foj’ the calendar years 1937 through 1942 which showed that the defendants had eight or more individuals in employment within the act each year for 1938 to 1942, inclusive. Defendants have paid all claims for contribution for said years except 1938 and 1939, and these two years are the only ones involved in the instant suit. In the circuit court the issue was stipulated by counsel as follows:
“5. That as a result of said field advisor’s report (January 18, 1943), which was the first infor mation the commission had of any liability, a notice of determination in the form of a letter was issued to the Oliver Adjustment Company by a representative of the commission on February 16,1943. This determination was to the effect that the Oliver Adjustment Company became an employer subject to the Michigan unemployment compensation act as of January 1, 1938, and that said concern was liable for contributions on all services performed in employment on or after that date. # * * •
“8. The plaintiff claims there is due it from said defendants the following sums of money: for 1938, delinquent contributions, $217.29, interest $123.79; for the year 1939, delinquent contributions of $237.53 plus $115.02 interest; making a total of $693.63 as of February 28, 1945, which amount of money the defendants concede to be correct and admit it to be' due and payable unless this action is barred by section 15 (j) of the Michigan unemployment compensation act. * # #
‘ ‘ 11. The defendants admit herein the regularity of the proceedings in every way, including due notice of the delinquent contributions and interest for the years 1938 and 1939, except as to their defense of the limitation of action .provision as contained in section 15 (j) of said act. The parties agree that no assessment or penalty has ever been made or imposed by the commission with respect to the delinquent contributions for the years. 1938 and 1939. This civil action for the collection of said delinquent contributions and interest is brought under the specific provisions of section 15 (c) of the Michigan unemployment compensation act.”
The present action was started by plaintiff on February 16, 1945, and a summons issued which was returned, served and filed on the ensuing day. The issue here is whether plaintiff’s cause of action was then barred by statutes of limitations,-the issue-having been properly pleaded in the case as an af firmative defense. If so, plaintiff can not prevail in this suit and the judgment for defendants must be affirmed.
The provisions of section 15 (c) of the unemployment compensation act (Comp. Laws Supp*. 1945, §8485-55 [c], Stat. Ann. 1946 Cum. Supp. §17.515 [c]) are as follows:
“In addition to the mode of collection provided in subsection (b) above, if, after due notice, any employer defaults in any payment of contributions or interest thereon, the commission may bring an action at law in -any court of competent jurisdiction to collect and recover the amount of any contribution, and any interest thereon, and in addition 10 per centum of the amount of contributions found to be due, as damages. An employer adjudged in default shall pay costs of such action. Civil actions brought under this section shall be heard by the court at the earliest possible date.”
The defendants claim that this action is barred under the provisions of section 15 (j) (Comp. Laws Supp. 1945, §8485-55 [j], Stat. Ann. 1946 Cum. Supp. § 17.515 [j]) of said act, which are as follows:
“No assessment or penalty with respect to contributions unpaid shall be made or imposed after the expiration of three years from the date upon which such contributions first become due and payable.” 1
Section 13 of the act (Comp. Laws Supp. 1945, § 8485-53, Stat. Ann. 1946 Cum. Supp. § 17.513) declares the date on which contributions by an employer who is subject to the act become due and payable, as follows:
“Such contributions shall become due and be paid to the commission, for the unemployment compensation fund, by each employer semiannually or for such shorter periods of not less than 28 days, as the commission may by regulation prescribe.”
In plaintiff’s brief it is claimed that on September 27, 1938, the commission adopted a regulation 23, providing in part that subsequent to June 30, 1938, the contribution period shall be the calendar quarter. The regulation referred to does not appear in the Michigan administrative code. Act No. 88, § 3, Pub. Acts 1943 (administrative code act) (Comp. Laws Supp. 1945, § 522-3, Stat. Ann. 1946 Cum. Supp. § 3.560 [9]), provides:
“Any rule made by any State agency prior to the effective date of this act and not filed in the office of the secretary of State within 3 months after the effective date of this act, as required by section 2 hereof, shall be void and of no effect. ’ ’
' Regulation 121 of the commission, appearing at page 1439 of the administrative code (1944), applies only to contributions on employment occurring subsequent to October 1,1939, and was not adopted until June 26, effective July 1, 1941. For the purposes of this case we must assume that the provisions for semiannual payment control, as provided in section 13 of the act. Therefore, defendants’ payment of contributions for the first six-months’ period of the year 1938 became due and payable June 30, 1938; for the last six months of said year, on December 31, 1938; and similarly on June 30 and December 31, 1939, respectively, for that year. Hence, if the three-year limitation in section 15 (j) of the act should be held to control, this suit would be barred by the limitation, not having been started until February 16 or 17, 1945.
But counsel agree that the failure of the defendants to disclose and report to the commission the fact that they employed a sufficient number of persons in 1938 and 1939 to bring them within the provisions of the act amounted to fraudulent concealment .of plaintiff’s cause of action, and that 3 Comp. Laws 1929, § 13983 (Stat. Ann. §27.612), applies to' the situation here. It provides:
“If any person who is liable to any of the actions mentioned in this chapter, shall fraudulently conceal the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within two years after the person who is entitled to bring the same shall discover that he had such cause of action, although such action would be otherwise barred by the provisions of this chapter.”
Hence, plaintiff’s cause of action to collect the delinquent compensation for the years 1938 and 1939 would not be barred in three years by said section' 15 (j) of the unemployment compensation act, when 3 Comp. Laws 1929, § 13983, supra, is read into it. It is conceded that plaintiff first discovered its cause of action when its field advisor filed the report as to defendants’ liability, on January 18, 1943, hence plaintiff’s action, giving effect both to said section 15 (j) and 3 Comp. Laws 1929, § 13983, supra, might under certain circumstances to which reference will be made later, be barred from and after January 18, 1945. Inasmuch as plaintiff’s present suit was not begun until February 16, 1945, the defense of limitation of action pleaded by the defendants might prevail. The circuit judge so held, and on that ground entered judgment of no cause for action.
Plaintiff insists that section 15 (j) does not apply as a limitation on the time within which an action in court may be brought under section 15 (c), as was done in this case, and claims that section 15 (j) applies only to the limitation of time within which as sessments and penalties may be imposed, not to suits begun under tbe provisions of section 15 (c) of the act. Plaintiff argues that as to such suits the general statute limiting the bringing of personal actions to six years from the time such action accrues. (3 Comp. Laws 1929, §13976, as amended by Act No. 72, Pub. Acts 1941 [Comp. Laws Supp. 1945, § 13976, Stat. Ann. 1946 Cum. Supp. §27.605]) applies. Therefore, plaintiff claims, its suit here is not barred.by the limitation of time in section 15 (j).
In their stipulation, above quoted, the parties agreed “that no assessment or penalty has ever been made or imposed by the commission with respect to the delinquent contributions for the years 1938 and 1939.” Plainly, this takes the instant situation out of the time limitation imposed by section 15 (j), which applies only to the time within which assessments or penalties may Toe imposed. That such is the legislative intent is made plain by other provisions in section 15 of the act. Section 15 (b) authorizes the commission to make “assessments” against any employer who fails to pay contributions or interest required by the act. It requires the commission to give notice of the assessment to the employer by registered mail, return receipt demanded, and provides that such assessment' shall be final unless the employer files an application for review or requests a hearing before a referee, within 15 days after receiving such notice. Such assessment, within 15 days after it becomes final, may be enforced summarily by the issuance of a warrant by the commission directing any officer who is authorized to serve process to levy upon and sell any property of the employer used in connection with his business.
In direct connection with, the above provisions in section 15 (b), the act provides in section 15 (j), as hereinbefore shown, that no sneh assessment or penalty shall be made or imposed after the expiration of three years from the date on which snch contributions shall first become due and payable. The more harsh remedy in rem for the collection of delinquent contributions, provided for in section 15 (b), was limited to assessments made within the more limited period of three years in section 15 (j), and for that reason section 15 (j) applies only to the time within which assessments and penalties may be levied.
But the defendants would also include the provisions of section 15 (e) within the language of section 15 (j). To accomplish this result, we would have to read section 15 (j) as follows:
“No assessment or penalty with respect to contributions unpaid shall be made or imposed, nor shall any action at law 'be brought in any court of competent jurisdiction to collect and recover the amount óf any contribution, after the expiration of three years.” '
So devious a change in the intent of the act, if at all advisable, must be left to legislation, and not made by judicial fiat.
The only limitation of time in the act itself, for enforcement or collection of delinquent contributions, is in section 15 (j). As stated, section 15 (c) provides that in addition to collection by assessment and levy, the commission may bring an action at law in any court of competent jurisdiction. -If there is any limitation of such court action, it must be found in statutory provisions elsewheref The appellant here brings into the case the question whether the general statute of limitations governs court actions brought under section 15 (c). As to that, section 13 of chapter 9 of the judicature act (3 Comp. Laws 1929, §13976, as amended [Compv Laws Supp. 1945, § 13976, Stat. Ann. 1946 Cum. Supp. §27.605]), limits tlie time within which personal actions must be commenced, to six years next after the causes of action shall accrue (with excep'tions not applicable here). And section 28 of chapter 9 of the judicature act (3 Comp. Laws 1929, §13991 [Stat. Ann. § 27.620]), applying to limitation of actions, provides:
“The limitations hereinbefore prescribed for the commencement of actions, shall apply to the same actions when brought in the name of the people of this State, or in the name of any officer or otherwise, for the benefit of the State*, in the same manner as to actions brought by individuals.”
In the case at bar, the most remote claim on which plaintiff seeks to recover, as hereinbefore stated, accrued June 30, 1938. Hence, as to that claim, except for a two-year extension for fraudulent concealment, plaintiff’s cause of action would become barred under the general statute of limitation, on July 1, 1944. The fraudulent concealment was discovered January 18, 1943, so that the time within which plaintiff would otherwise be barred from beginning suit must be extended two years. When does the two-year extension begin to run? The result of such extension can not be to curtail the six-year period. The plaintiff still has the full period of six years from the time when the cause of action accrued, within which to start suit, “and moreover, where the deféndant has fraudulently concealed from him his cause of action, he has, under any circumstances, not less than the full period of two years from date of discovery in which to bring his action.
“The latter section of the statute was intended not to curtail, but, when applicable, to enlarge, the time for action limited by the former, and it applies only where it will in fact enlarge it. Without attempting to discuss what may still be the inherent power of a court of equity in Michigan in exceptional cases to go beyond the terms of the statute, even as modified, and on equitable grounds to grant additional relief, it is certain that in a suit at law the statutory provisions govern and an action such as the present is barred in six years from the commission of the act complained of, unless the fraudulent concealment section can be invoked to extend the time, and even then, unless brought within two years from date of discovery of the cause of action. ’ ’ Ramsey v. Child, Hulswit & Co., 198 Mich. 658, 667.
Under the above interpretation of the fraudulent concealment provision, plaintiff’s suit to recover the contributions which became due June 30, 1938, and December 31, 1938, became barred on January 19, 1945, by the statute as thus extended by two years from the date of discovery of the concealment (January 18, 1943). Suit as to these two delinquent contributions waá not begun until February 16, 1945, and as to plaintiff’s claim for said delinquent contributions, interest and damages for 1938, the defense of the statute of limitations must prevail. It should be noted, however, that as to plaintiff’s claim for delinquent contributions for the year 1939, suit did not become barred by the six-year limitation until July 1, 1945, and suit having-been begun on February 16 or 17, 1945, the defense of the statute of limitations can not prevail as to such claims. The court should have held for the defendants as to plaintiff’s claim for contributions, interest and damages, based on the 1938 delinquency, and for the plaintiff as to 1939.
The foregoing conclusions are in harmony with recent decisions here, applying to somewhat sim ilar questions arising under the sales tax act,’ wherein comparable provisions are found.
(“Statutes levying taxes are not extended by imIplic’a'tion beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out, and in case of doubt are construed most strongly against the government and in favor of the citizen.
“While a cause of action created by statute is subject to the statutory conditions, including the period of limitations, where act creating such cause contains no such limitation, the general statute of limitations applies (3 Comp. Laws 1929, § 13976, as amended by Act No. 72, Pub. Acts 1941).” Metzen v. Department of Revenue (syllabi), 310 Mich. 622.
Nor is the holding in Finkelstein v. Department of Revenue, 312 Mich. 186, contrary to the conclusions reached here. The sales tax act, therein referred to, contains a provision that no deficiency, interest or penalty shall■ be assessed for any year after the expiration, of three years from the date set for filing the annual return for that year. As to that, we held (syllabus):
“The department of revenue was barred from making an assessment for deficiency in remittance by taxpayer under the general sales tax act, where the assessment was not made within three years from the date get for filing of the annual return, notwithstanding a notice of claim for deficiency and intention to levy an assessment was filed, taxpayer demanded a hearing and requested an adjournment before the expiration of the three-year period (Act No. 167, §§ 6, 7, 9, 22, Pub. Acts 1933, as amended by Act No. 313, Pub. Acts 1939; Act No. 122, § 9, Pub. Acts 1941).”
Thatcher v. Detroit Trust Co., 288 Mich. 410 (122 A. L. R. 282), is distinguishable from the case at bar, on the facts. In the instant case the fraudulent concealment was discovered January 18,1943, which was within the two-year period immediately preceding the expiration of the six years during which plaintiff was entitled to bring suit under the general statute of limitations . (July 1, 1944). In the Thatcher Case, the concealment was discovered more than two years prior to the expiration of the six-year period. The plaintiff claimed he had six years in which to bring suit after the concealment became known to him. Quoting with approval from the Ramsey Case, supra, the Court said (pp. 415, 416):
“He thus claims a period of approximately 10 years before his claim could be outlawed. This, of course, is not what the statute provides, nor does it give plaintiff two years more in addition to the six years if, as in this case, he discovered the fraud in more than two years prior -to the expiration of the six years. * * *
“Since suit was not commenced for four years after the alleged fraud was discovered, this statutory exception for fraudulent concealment is unavailable to plaintiff. ’ ’
In Midwest Theatres, Inc., v. Unemployment Compensation Commission, 317 Mich. 319, the unemployment compensation commission on March 20, 1942, gave plaintiffs notice of an assessment for contributions for the period from October 1, 1937, to July 16, 1938. Obviously the assessment was made more than three years after the contributions became due. The employers (plaintiffs in certiorari to the commission in that case) relied on section 15 (]) in claiming that the contributions were barred by the statute. The commission relied on an exten sion of the time limitation in section 15 (j), because of fraudulent concealment, thus relying on 3 Comp. Laws 1929, § 13983 (Stat. Ann. § 27.612). The commission did not discover the concealment until February, 1942, about two years after the three years had expired, and not within the two years immediately preceding the expiration of the three years within which assessment could be made, under section 15 (j). Thus the case is distinguishable from the case at bar. In the Midwest Theatres Case, we held that- the assessment might be made within the two years after the fraudulent concealment was discovered. In that case the assessment was made almost immediately after the concealment was discovered.
Under our construction of the statute law herein-before indicated, the trial court reached the right conclusion in holding that plaintiff could not recover for the 1938 delinquency, but erred in refusing plaintiff judgment for delinquent contributions, interest and statutory damages for 1939.
Plaintiff (appellant) injedts one other question into this appeal. It claims that an earlier decision by the circuit judge in Marquette county, in a certiorari case between these same parties, is res judicata and cuts off the defendants’ right to again raise the defense of the statute of limitations .in the instant case. Subsequent to plaintiff’s notice to the defendants of defendants’ liability for these contributions, and prior to plaintiff’s commencing the instant suit, the defendants brought certiorari in the circuit court for Marquette county, challenging the right of plaintiff to collect delinquent contributions. The question of the statute of limitations was injected, into the case. The court held that the collection was not barred by section 15 (j) of the act, and also held that the commission was not barred from bringing suit in court under section 15 (c) until the general statute of limitations of six years had run against that remedy. As to that, Judge Bell in his opinion in the instant case said:
“The fact that the court’s opinion appears to be now in conflict with its former opinion may be accounted for partly by the fact that the statement of facts is quite different in this case from what it was in that, partly because what the court said there about the general statute of limitations was dictum, and more the court has the right to change its mind if, by further study it feels that it has erred in the former opinion.”
With that conclusion we are in full accord. The decision of the trial court in the former (certiorari) case, as to the proper construction of these provisions in the statutes, does not bind this Court, on this appeal, as res judicata, in construing the law.
The judgment for the defendants is set aside and the case remanded for a new trial in accord with the conclusions of law herein reached. Inasmuch as the defendants have deposited $705.58 in escrow with the circuit court to avoid additional liability for interest or damages, none shall be imposed, and no costs are allowed, questions of public interest being involved.
Caer, C. J., and Butzel, Btjshnell, Sharpe, Reid, and North, JJ., concurred. Dethmers, J.\ did not sit.
Act No. 1, Pub. Acts 1936 (Ex. Sess.), as amended by Aet No. 347, Pub. Aots 1937, Aet No. 364, Pub. Acts 1941, and Aet No. 246, Pub. Acts 1943 (Comp. Laws Supp. 1940, 1945, § 8485-41 et seq., Stat. Ann. 1946 Cum. Supp. § 17.501 et seq.).
The act became effective January 1, 1944.—Reporter.
Act No. 167, Pub. Acts 1933, as amended (Comp. Laws Supp. 1940,, 1945 3663-1 et seq., Stat. Ann. 1946 Cum. Supp. § 7.521 et seq.). | [
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Boyles, J.
Plaintiff .sued the defendants to recover damages for an assault and battery alleged ■to have been committed in ejecting him from defendant Thomas’ place of business in Detroit. The case was submitted to a jury, resulting, in a verdict for $2,000 against both defendants. The court set aside the vérdict as to defendant Thomas, judgment was entered against the defendant Dancey for $2,000 and in favor of defendant Thomas for no cause of action. Plaintiff appeals, claiming judgment should have been entered on the verdict, and against both, defendants.
Thomas was the owner of a place called the Boyal Blue Bar, where intoxicating liquors were sold for consumption on the premises, and held a license of the State liquor control commission for that purpose. ■ Defendant Dancey was his bartender. According to plaintiff’s testimony, “in 1942 about 9 p.m.” he went into the Boyal Blue Bar, that he was not intoxicated,, that he purchased beer for himSelf and two others, that bartender Dancey told him “You had better quit drinking, .or else you won ’,t be able to work, ’ ’ that he started out the door, stopped to talk to someone, and that this is what then happened:
“Bobert Dancey, at that time I was standing- talking to him, he passed me with á white apron on the way out the door. I paid no attention, yet — and I walks on out, and just as I walked out the door he was standing with his back against the.right side of the door, facing on the outside, and just as I went to step off — his hands were under the apron. I ain’t thought nothing of it. I started out. And when I come out, I saw he was backed up against the wall. Bobert Dancey was backed up on the outside door, backed up against the door. Just as I went to step off, and before I could look around, he came out from under the apron with something and struck me right in the eye. There was no conversation between me and Dancey. * # *
“I had no conversation with Mr. Daneey other than that conversation. I did not resist him when he told me to get ont. I ain’t heard him tell me to get out, hut I could tell the way he was mad; I walked on out. I wasn’t drunk, but I had a couple of drinks; I had a couple of drinks. I wasn’t staggering.”
On cross-examination, the plaintiff further testified:
“I had no argument with the bartender. There were no words at all. He served me a drink. I paid for the drink. I walked out of the door. And he came outside and struck me in the eye. I don’t know why. I had no argument with this man before this day. I knowed his face, but not by name. He had served me a drink before. I did not talk with any of the waitresses, or anybody else,'in the bar that night. No more than the two girls, and a couple of gentlemen. I don’t know who the two girls were; they knew me, but I don’t know them. I ordered a drink and ordered them one too. Í did not have an argument with anyone else in the bar that night. I know nothing about any other argument; I wasn’t only in there 1Ó or 15 minutes. During the 10 or 15 minutes I was there everything was peaceful and quiet.
“The bartender came outside' of the place and struck me in the eye. I don’t know what he hit me with; he came from under his apron with something. The way it looked to me, like when it came out, it was a blackjack.”
Plaintiff offered no other testimony to establish the alleged assault and battery. At the conclusion'of plaintiff’s proofs, counsel for the defendants moved as follows:
“Just for the record, I will make a motion to dismiss, but I am going to put the defendant on 'immediately.”
The court denied the motion. The motion was not argued and no reason was assigned for the motion .or the denial.
Defendant Dancey was thereupon sworn and testified that the plaintiff came into the Royal Blue Bar, started to annoy two ladies,—
.“So I asked him out. He won’t go. Then Basked him out again. • He won’t go. So I walked around behind the bar. I used some force to put him out, but I did not go out of the place, I just shoved him out the door. I really did not strike him.
“Q. "When you say you used some force to put him out, do you mean you took him by his arms and pushed him toward the door?
“A. That is-right. I did not go outside of the door at all, I remained in the bar at all times. ’ ’
However, on cross-examination, Dancéy, admitted having testified in his defense in a case charging him with a criminal offense that the assault and battery occurred outside of the Royal. Blue Bar, that' he went outside of the door, that the plaintiff called him names, they started to fight, that he there hit the plaintiff, and admitted that he was outside the door about a minute and a half. There is no claim that plaintiff was assaulted while in the building or while he was on the way out. There is no claim that he attempted to re-enter. The assault and battery, if any, occurred after plaintiff was outside the building.
There is no testimony to the effect that the defendant Thomas, the owner of the establishment, was present, either in the Royal Blue Bar, or outside, when plaintiff was ejected from the place, or when the alleged assault and battery took place. 'The liability of Thomas is predicated on the theory that he must answer in damages for the tort of his servant. This, in turn, must depend upon whether Dancey, at the time of the assault, was acting within the scope of his employment, as the servant of Thomas. Ducre v. Sparrow-Kroll Lumber Co., 168 Mich. 49 (47 L. R. A. [N. S.] 959, 2 N. C. C. A. 596); Nevins v. Roach, 249 Mich. 311; Martin v. Jones, 302 Mich. 355. Plaintiff alleges, and the defendants admit, that Dancey was the “agent” of defendant Thomas. However, the declaration does not allege, nor do the defendants admit, that Dancey was acting within the scope of his authority when the assault was committed.
At the conclusion of all the proofs in the case, counsel for the defendants moved the court as follows :
“I would like to renew my motion now as to the defendant Thomas. I do not think there is any testimony whatsoever to connect him up with it. Under the plaintiff’s own testimony that the fracas happened, or that the accident happened outside the bar, you could not connect the owner with it. He was clearly, if there was any agency whatsoever, outside of the scope if he got out that far.”
The court reserved decision on the motion, under the statute. After the court began to charge the. jury, the following occurred :•
“Mr. Golden (attorney for defendants): I do not mean to interrupt the court, but I would like to make a motion under the Empson act before you charge the jury; motion for defendant notwithstanding the judgment (sic) of the jury.
“The Court: I do not think you have to make that now, but you can.
“Mr. Golden: All right.”
Thereupon the court continued to charge the jury as to the law applicable to the case, in the course of which the court said: '
“If Dancey put the plaintiff out of the place, and after the act of putting him out was completed, he goes out, or-while he is still out he throws something at him, or hits him with something that he pulls out from under his apron, of course that would be an act that was unjustified, would be a tort committed-by‘the defendant Dancey for which the defendant Thomas would not be liable. * * *
“In other words, the employer is liable for acts performed by the agent in the course of the employment, responsible directly for his acts, but not for acts committed outside the scope of his employment. * * *
“The question of whether the defendant Dancey was acting within the scope of his authority is a question of fact for you, based upon the circumstances of the case.”
At the conclusion of the charge, counsel for the defendants again orally moved the court as follows:
“Just for the record, I will renew my motion notwithstanding the verdict of the jury. ’ ’
Por obvious reasons- the court did not then pass upon this untimely motion, but submitted the case to the jury. After the jury had returned a verdict for $2,000 against both defendants, counsel for the defendants again moved the court, this time as follows :
“May it please the court, I will renew my motion at this time as to the defendant Thomas first. I do' not believe there is any evidence whatsoever from which the defendant Thomas could be linked in with this verdict. The testimony has been read now three times, and once to the jury; the accident, if it was an accident, or a deliberate striking, occurred outside of the bar, definitely outside of the scope of the defendant Thomas’ purview, outside of his place entirely, and we have got to draw the line somewhere.”
Thereupon the trial court set aside the verdict as against the defendant Thomas and entered judgment on the verdict only as against the defendant Dancey. In so doing, the court said:
“I do not care what you call it, whether it is a motion now made, considered at the close of the plaintiff’s case or at the close of "the defendant’s case, or at the time the motion was made; I am satisfied now that this plaintiff should not recover against the owner; that under the declaration, the opening statement of counsel, and the testimony of the ■ plaintiff, the plaintiff cannot recover under Michigan decisions against the owner. I do not care what form it takes how. I am setting aside this verdict that was granted by the jury against the owner, both on the ground that I reserved it under the statute at the close of the plaintiff’s case, that I reserved it under the statute at the close of the defendant’s ease, and that I decided it when you argued the motion before, after the verdict. ’ ’
In their briefs counsel discuss at length whether defendants’ motion made at the close of plaintiff’s case should have been granted. However, that is not controlling of decision. Out of the welter of motions made at various stages of the case we reach the same conclusion as announced by the circuit judge — that it matters not in what light these various motions might be considered. The meritorious question here, which under the circumstances should control decision, is whether there is testimony to justify judgment against the defendant Thomas for the tort of his servant. Our review of the record is convincing that there is no testimony to show Dancey was acting as the servant of Thomas and in the scope of his employment when he assaulted the plaintiff. The judgment entered, no cause of action against Thomas, .notwithstanding the verdict of the jury, was proper, and is affirmed, with costs.
Carr, C. J., and Butzel, Bushnell,. Sharpe, Reid, North, and Dethmers, JJ., concnrred.
See 3 Comp. Laws 1929, § 14531 et seq., as amended by Act No. 44, Pub. Aets 1939 (Comp. Laws Supp. 1940, g 14531, Stat. Ann. and St'at. Ann. 1946 Cum. Supp. g 27.146Í et seq.).—Beporter. | [
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Caer, C. J.
The question at issue in this case is whether plaintiff is entitled to maintain her suit for divorce in the circuit court of Genesee county. The bill of complaint, filed February 26, 1946, alleged that the parties were married in London, England, on or about December 16, 1944, that at that time defendant was a sergeant in the United States army, stationed in England, that plaintiff was a member of the British armed forces, belonging 'to the women’s section of the Royal Air Force, that the parties lived together as husband and wife until the latter part of March, 1945, and that in May following defendant left England for the United States. Plaintiff further averred that defendant assured plaintiff that he would make arrangements for her to come to this country as soon as possible, that she intended to follow defendant as soon as war regulations would permit, and that it was the intention of the parties at that time to establish a home together wherever defendant might reside after the war. Plaintiff further claimed that defendant failed to answer her letters, that he did not send her money for her support, and that, according to her information, he had conducted himself, since returning to the United States, in a manner subversive of the marital relation. It is conceded that plaintiff has not at any time actually lived in Michigan. In the bill of complaint she alleged that the defendant was, at the time of the marriage and also at the time of the institution of the divorce action, a resident of Genesee county in this State, and that she became, and still is, “an-inhabitant of this State by virtue of a marriage ceremony performed between the parties as above ^stated.” It thus appears that plaintiff brought her action in reliance upon the theory that constructive residence was sufficient to satisfy the jurisdictional requirements of the Michigan statute (hereinafter more specifically referred to), and that actual residence within the State was not-necessary.
Process was duly issued on the filing of the bill and personal service was had on defendant in Gene-see county. He did not, however, enter am appearance in the case, and the matter was brought on for hearing before the court' on the bill of complaint taken as confessed. On behalf of plaintiff and in support of her charges of extreme and repeated cruelty, testimony of a witness was offered and received. Thereupon consideration was given to the question of jurisdiction and the trial court, being of the opinion that the suit copld not be maintained in view of, the situation as to plaintiff’s residence, entered an order dismissing the bill of complaint. Prom such order plaintiff has appealed.
Plaintiff relies on the rule that the domicile of the wife follows, as a general proposition, the domicile of the husband. It is claimed, in substance, that domicile and residence are practically synonymous terms and that, in determining residence, intent is of primary importance. In accordance with the averments of the bill of complaint it is insisted that on plaintiff’s marriage to defendant, in December, 1944, Genesee county became, constructively, her matrimonial domicile.
The rule is well established in this State that the jurisdiction of the courts in divorce proceedings is wholly statutory. Haines v. Haines, 35 Mich. 138; Baugh v. Baugh, 37 Mich. 59 (26 Am. Rep. 495) ; White v. White, 242 Mich. 555. The pertinent provisions of the statute relating to the matter at issue here are found in 3 Comp. Laws 1929, § 12731, as last amended by Act No. 2, Pub. Acts 1941 (Comp. Laws Supp. 1945, § 12731, [Stat. Ann. 1946 Cum. Supp. §25.89]). Said section provides in part as follows:
“No decree of divorce shall be granted by any court in this State in any case unless:
“First, The party applying therefor shall have resided in this State for 1 year immediately preceding the time of filing the bill or petition therefor; or,
“Second, The marriage which it.is sought to dissolve was solemnized in this State, and the party applying for such divorce shall have resided in this State from the time of such marriage until the time of bringing such suit for divorce.”
Obviously, the second alternative in the language quoted has no application in the case at bar. The question is whether it can be sai(l under the facts averred in plaintiff’s bill of complaint that she resided in this State for the required time prior to bringing the suit. . This depends on whether the language of the legislature, as set forth in the statute, is construed as requiring actual residence, or, as claimed by plaintiff, constructive residence only. The trial court in his opinion referred to specific language in the section in question and came to the conclusion that actual residence is necessary to satisfy the jurisdictional requirement. It is a fair inference that the word “resided,” as used throughout the section, was intended to have, in each clause where appearing, the same meaning. This is also true of other words of like import. Thus, in refer ring to divorces sought on the ground of desertion, it is provided that such act shall be deemed to have occurred in this State when the parties “shall have been actually and in good faith domiciled in this State” at the time of abandonment, without proof of actual intent at such time. Of even greater significance is the proviso in the following excerpt from said section:
“Whenever the cause or causes for divorce charged in the bill or petition shall have occurred out of this State, no decree of divorce shall be granted unless the complainant or defendant, 1 or both of them, shall have resided in this State for 1 year immediately preceding the filing of the bill or petition for such divorce: Provided, however, That absence from this State not to exceed 90 days shall not be construed as to interfere with the fulfillment of the 1 year residence requirement herein-before or hereinafter provided in the case of causes for divorce occurring without this State.”
The reference to a,possible absence not exceeding 90 days indicates rather conclusively that the legislature had in mind, in the enactment of the provision quoted, actual residence in Michigan. An analysis of all of the provisions of the section indicates clearly that the term “residence” was used in the sense of an actual residence rather than a constructive one. Such was the theory recognized in White v. White, supra, in which the defendant appealed from a decree of the trial court granting a divorce to plaintiff, claiming that plaintiff had not resided in this State for one year preceding the time of filing the bill. Proofs indicated that plaintiff had actually lived in Michigan 11 months and 24 days before bringing suit. The parties had lived together in Detroit for 11 and one-half months’ im mediately preceding their separation which occurred 9 days before action was brought. The record in the case indicates that the defendant husband had resided in Michigan for some six months prior to the time that his wife came here from Georgia. 'It does not appear that any claim of constructive residence was made in her behalf, and such theory was not recognized by this Court. In holding that plaintiff was not entitled to maintain the suit it was said:
“The statute requires a full year’s residence and a less period does not give the court jurisdiction. Such a residence was not established by the plaintiff. Divorce proceedings are wholly statutory and not within the original cognizance of courts of equity. Haines v. Haines, 35 Mich. 138. The provision of the statute as to residence is mandatory and it must be made to appear affirmatively; otherwise the court is without jurisdiction. Bradfield v. Bradfield, 154 Mich. 115 (129 Am. St. Rep. 468); Hoffman v. Hoffman, 155 Mich. 328.”
In Smith v. Foto, 285 Mich. 361. (120 A. L. R. 801), it was said:
“One who is not a resident of Michigan may not appeal to its courts for divorce. Wright v. Genesee Circuit Judge, 117 Mich. 244; Hoffman v. Hoffman, 155 Mich. 328; Bradfield v. Bradfield, 154 Mich. 115 (129 Am. St. Rep. 468). ‘Residence,’ in the divorce statutes of this State, means the place where one resides; an abode; a dwelling or habitation; especially, a settled or permanent home or domicile. Residence is made up of fact and intention. There must be the fact of abode, and the intention of remaining. Wright v. Genesee Circuit Judge, supra.”
, The interpretation of the Michigan statute, above indicated, appears to be in accord with the general rule. In the annotation following Hiles v. Hiles, 164 Va. 131 (178 S. E. 913), as reported in 106 A. L. R. 1, it is said:
“It is usually held that, a statutory requirement of- residence for a specified period means actual and not constructive residence, thus in effect imposing a requirement additional to that of mere legal domicil.”
In support of the statement quoted a number of cases from different States are cited; and the statement is repeated, with further citations, in the annotation following Allan v. Allan, 132 Conn. 1 (42 Atl. [2d] 347), as reported in 159 A. L. R, 493.
The trial court correctly determined that the provisions of the Michigan statute, above referred to, require actual residence in this State, and that constructive residence or domicile is not sufficient to confer jurisdiction. The order dismissing the bill of complaint is affirmed.
Btjtzel, Btjshnell, Sharpe, Boyles, Reid, North, and Dethmers, JJ-., concurred. | [
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Chandler, J.
The record in this case contains the following stipulation as to the facts involved in the controversy:
“The following facts are stipulated by C. I. T. Corporation, reclamation petitioner, and the temporary receiver:
“C. I. T. Corporation, the reclamation petitioner, is engaged in financing automobile paper. WillysDetroit, Inc., was a distributor of Willys automobiles. Willys-Overland, Inc., is the manufacturer.
“An order previously entered herein disposed of all automobiles except 14 covered by trust receipt transactions.
“Of such transactions, one Willys 1938 pick-up, Serial No. 79560, Motor No. 79777, was not in the possession of the distributor at the time the temporary receiver was appointed, August 16, 1938, so the decision on the reclamation petition shall not apply thereto.
“The 13 cars covered by trust receipts were released by this court to petitioner upon filing its bond in the amount of $3,000, conditioned upon petitioner paying to the temporary receiver or his successors and assigns the amounts of any claims and liens that may be adjudged to be superior to, or have priority over, petitioner’s rights therein.
“There are creditors who extended credit to the distributor, after the execution of the trust receipts, the amounts of which are to be determined by the court from claims filed by said creditors, and allowed by this court after notice to petitioner, and petitioner shall have an opportunity to object to allowance of any claim so filed. If such creditors are entitled to priority over petitioner, such prior claims shall be satisfied from the bond which was substituted in lieu of the cars.
“The cars came into the distributor’s possession in this manner:
“The distributor ordered the ears from the manufacturer which made out its invoices to the distributor and attached them to bills of sale to petitioner, executed in the following form:
“ 'Sold by Willys-Overland Motors, Ine.g >
Toledo, Ohio,
To
O. I. T. Corporation
“ 'Know all men by these presents, that the undersigned for valuable consideration, does hereby grant, sell, transfer, and deliver unto C. I. T. Corporation (grantee) the following goods and chattels described below: (describing cars)
" ‘To have and to hold all and singular the said goods and chattels to said grantee, its successors and assigns. The undersigned covenants with said grantee that undersigned is the lawful owner of said chattels; that they are free from, all incumbrances; that the undersigned has a good right to sell the same; that undersigned will warrant and defend same against the lawful claims and demands of all persons.
“ 'In witness whereof, the undersigned has hereunto set its hand and seal this 15th day of Oct. 1937.
“ fWlMiVS-OvEKLAND MOTORS, INC.
By: H. C. Kruse.'
“Petitioner prepared time drafts attached to trust receipts in the form of exhibits ‘J’ to ‘IP inclusive, filed as a part of the reclamation petition; the time drafts are payable to petitioner in the full amount of the invoices, drawn on the distributor, bear the typewritten signature of the manufacturer, as shipper, and have the acceptance of the distributor indorsed on the face thereof; and the trust receipts are signed by the distributor.
“Petitioner delivered its check for the full amount of the invoice prices to the manufacturer and received from the manufacturer bills of sale with invoices attached. It received from the distributor the signed trust receipts and accepted time drafts. Pursuant to this arrangement the distributor received the cars to hold in accordance with the provisions of the trust receipts. This ‘floor plan accommodation’ or trust receipt type of transaction has been carried out between the parties since November 17,1936.
“None of the-instruments in question were filed with the register of deeds for Wayne county, Michigan, the place of residence of the distributor, and the place where said chattels were kept.
“The only retail sales by the distributor were separately financed by petitioner under written contracts between the distributor and the purchaser, and such contracts were simultaneously assigned in writing to petitioner by the distributor.
“In no case of sales by the distributor at wholesale to dealers was the written consent of petitioner demanded or received. Such sales were promptly reported and the proceeds accounted for by the distributor to petitioner, with the exception of the Willys pick-up heretofore referred to. Disposition of that car appears to have been made within a few days prior to the receiver’s appointment.
“Upon the appointment of a temporary receiver, C. I. T. Corporation filed this reclamation petition.
“The sole.question raised by the petition and answer is whether or not these transactions constitute security in the nature of a chattel mortgage and are void as to subsequent creditors under our recording acts, 3 Comp. Laws 1929, § 13424, as amended (Stat. Ann. § 26.929).”
The following is a copy of the trust receipt referred to in the stipulated facts as exhibits ‘J’ to ‘U,’ inclusive:
“Received from C. I. T. Corporation (hereinafter termed C. I. T.) each of the chattels described on the reverse hereof, complete with all standard attachments and equipment, in consideration whereof we agree, at our expense, to hold said chattels, including any substituted parts, in trust for C. I. T. as its property, and agree to return the same on demand in good order and unused but with liberty to us to exhibit and, the written consent of C. I. T. having first been obtained, to sell the same for its account for pash not less than, as to each chattel, the minimum sale price (the value thereof) set forth as to the respective chattel on the reverse hereof, and we further agree in the case of such sale to hold in trust for C. I. T. the proceeds separate from our funds and immediately hand such proceeds to C. I. T. without expense or cost to C. I. T. C. I. T. may at any time cancel this trust and repossess itself of said chattels or the proceeds thereof.
“We further agree to keep a separate account of all chattels delivered to us under this or any like receipt and of the proceeds thereof when sold, to report any sale to C. I. T. immediately after the same is made, and to furnish to it on demand a true and complete report for the preceding month. We will also permit C. I. T., or its duly accredited representatives, to examine our books and the chattels in our possession at all reasonable times during business hours.
“Unless we have arranged with C. I. T. ourselves to provide insurance, C. I. T. shall, during the entire time said chattels are held hereunder, keep same insured against loss by fire and theft, and in the event of our failure to redeliver the same on demand we shall, until redelivery thereof, pay as damages for detention for each month or portion thereof after demand one per cent, of said sale price.
“We further agree to pay all taxes, costs, charges, expenses and disbursements, including a reasonable attorney’s fee (15 per cent, of sale price of said chattels, if permitted by law) should C. I. T. find it necessary to protect its property in same by legal proceedings involving the employment of an attorney at law, and that the waiver of any default shall not operate as a waiver of subsequent defaults, but all rights hereunder shall continue notwithstanding any one of more waivers. We acknowledge receipt of a true copy of this agreement, which shall be construed according to the laws of the State of New York.
“The chattels above referred to are listed on face "of this form.”
On the reverse of said receipt, appears the following:
“Make-; Model Number-; Serial Number-; Motor Number-; Minimum Sales Price-.
“•Total-.
“*(Total must agree with amount of Time Draft)
“(Town) Detroit, (State) Michigan, (Date) 4/8/ 1938.
Willys-Detroit, Inc.
(Dealer Signs Here)
(Trustee (Bailee
- By-
“(Witness) (Owner, Partner or Officer)
The trial court, in denying the reclamation petition, held in substance that the case of Motor Bankers Corp. v. C. I. T. Corp., 258 Mich. 301, was controlling of the instant case; and that the slight variations in the trust receipt involved in the present suit from the receipt involved in the Motor Bankers Corporation Case did not change the fundamental nature of the transaction.
The court found that the transaction was one by which the petitioner advanced to the Willys-Detroit, Inc., the invoice price of the cars in question, and as security for the repayment of such advancements received the legal title of those cars; that it advanced the funds several days before any obligation arose on the face of the documents on the part of the Willys-Detroit, Inc., to pay; and that on the same day that the bills of sale to the petitioner were executed by the manufacturer, the latter invoiced the cars covered thereby to the Willys-Detroit, Inc. He concluded that petitioner would not have advanced the money had not these cars already been sold to the Willys-Detroit, Inc., and that the transaction was not a sale by petitioner to said company but was in effect a loan or advancement made by petitioner for the purpose of financing a purchase already made by the distributor from the Willys-Overland, Inc., the manufacturer. He further concluded that the trust receipt was in effect a chattel mortgage, and not having been filed or recorded as required by the provisions of 3 Comp. Laws 1929, § 13424, as amended by Act No. 18, Pub. Acts 1934 (1st Ex. Sess.), and Act No. 129, Pub. Acts 1935 (Comp. Laws Supp. 1935, §13424, Stat. Ann. §26.929), was void as against subsequent creditors or chattel mortgagees. We are in accord with the findings and conclusions of the trial court as to creditors of the mortgagor, and subsequent purchasers or mortgagees in good faith.
Appellant contends that the decision in Motor Bankers Corp. v. C. I. T. Corp., supra, is founded upon the following language to be found therein:
“Under our holdings a trust receipt, accompanied by the obligation of the receiptor to pay an agreed price for an automobile, possession of which is changed, and which permits suit upon the obligation accompanying the trust receipt or the retaking and resale of the car, with application of proceeds in reduction of obligation to pay and right to hold the receiptor for the balance, is security in the nature of a chattel mortgage, and if not filed as such, under our recording laws (3 Comp. Laws 1929, § 13424), is void as against subsequent purchasers or mortgagees in good faith. Burroughs Adding Machine Co. v. Wieselberg, 230 Mich. 15; Nelson v. Viergiver, 230 Mich. 38.”
On the contrary, we believe the basis for the decision of the cited case is to be found in thé following statement contained therein:
“We consider the acts of the distributor, the dealer, and the defendant in construing the trust receipt, and we decline to split the transaction and hold that it was less than security in the nature of a chat tel mortgage because the dealer accepted the time draft, and executed the trust receipt to defendant, and such papers, along with the bill of sale of the automobile, were turned over to defendant.
“We have examined, but need not review, cases from other jurisdictions, for we have established our own rule with reference to instruments in the nature of a chattel mortgage. ’ ’
The language of the. trust receipt involved in the Motor Bankers Corporation Case and that involved in the instant case is, with certain exceptions, practically identical. In the former, the following provisions are to be found which have been omitted from the receipt involved herein:
“The acceptance of time draft in the above amounts shall not be effective to terminate this trust.
“In the event of our insolvency, suspension or failure to pay the acceptance of even date, or our breach of this trust, all acceptances due from us to C. I. T. shall immediately become due and payable.
“And agree that C. I. T. may sell said motor vehicle and apply the proceeds to advances made for our account and we agree to pay the balance if any.”
These slight changes were evidently made by petitioner for the purpose of evading what appeared to it to be the effect of the language which is claimed to have been the basis of the Motor Bankers Corporation Case.
Looking to the substance rather than the form of the transaction, we hold that there is no difference in the status of the parties and the legal questions involved in the two cases.
We cannot more clearly express our attitude toward transactions of this nature than by quoting with approval the following from Root v. Republic Acceptance Corp., 279 Pa. 55 (123 Atl. 650):
“The complicated dealings between many of those trafficking in, and loaning money on, automobiles have reached a point where the courts must strip transactions of their pretenses and look at them as they really are, with the camouflage of papers giving a similitude of the passing of title removed, or they will be dealing with fictions instead of facts. Those who buy and sell, bail and loan money on motor vehicles must be given to understand that the realities of their transactions will be sought for by the courts; they will look through the screen of paper titles to ascertain what was the real situation. ’ ’
We affirm the order of the trial court denying appellants reclamation petition, with costs to appellee.
Butzel, C. J., and Wiest, Bushnell, Sharpe, Pot-tee, and McAllister, JJ., concurred. North, J., took no part in this decision. | [
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Chandler, J.
On January 1, 1932, Frank W. Blair was president and chairman of the Union Guardian Trust Company and a member of the bondholders’ committee of the American Bond & Mortgage Company. On that day, he resigned from his offices with the trust company, and to secure the payment of any obligations to the trust company, a written agreement was reached on January 23, 1932, whereby the fees, estimated at that time to be between $150,000 and $200,000, which Blair was to receive by reason of his services on the bondholders’ committee were divided between the trust company and Mr. Blair, by allocating to the trust company “that portion of said fee or payment to him as a member of said bondholders’ committee of the American Bond & Mortgage Company which shall be allocated to the period of time running from October 24,1929, to January 13,1932, said allocation to be made on the basis of time of his service as a member of said committee and the amount of said fee so allocated to be the same proportion of the total fee as the period of time from October 24,1929, to January 13, 1932, bears to the total period of his service on said committee.” Thereafter, being in debted to various banks, corporations and individuals to the extent of upwards of $1,300,000, and desiring to provide for the payment of this indebtedness, Mr. Blair, on February 10, 1932, assigned assets of the par value of some $675,000 to H. O. Chapoton, Buss Jenks, Frank W. Merrick and Hal H. Smith as a “committee of trustees” upon trust for the following purposes:
(a) To pay the costs of the committee of trustees.
(b) To liquidate the property assigned.
(c) To apply the proceeds so derived to the claims of the creditors of Frank W. Blair, ratably and proportionately, and
(d) To pay the balance remaining to Frank W. Blair, his representatives and assigns, the committee being given power “to compromise any and all claims and demands against said first party, to sell or exchange on such terms and for such consideration and for such other property of any kind as said committee shall deem advisable any and all of the said property here assigned.”
The property assigned was more particularly described in the instrument as being,
(a) That part of the fee Blair was to receive as a member of the ‘ ‘ committee of the American Bond & Mortgage” not allocated to the Union Guardian Trust Company by the agreement of January 23, 1932, and
(b) An itemized list of stocks and bonds with a valuation of some $675,000 which had already been pledged to secure obligations of the assignor.
The instrument further provided:
“Said first party further agrees that should he come into possession of any other stocks or bonds than are set forth in the foregoing, either by gift, purchase, exchange or otherwise, during the period of the existence of the trust, he will forthwith assign same to the ‘committee of trustees’ to be held by it for the purposes of this agreement, provided, however, that nothing herein shall require the pledge of shares needed by the first party to qualify under any law as a director of any corporation.”
A supplementary instrument was executed on August 12, 1934, to remove any doubts in the minds of creditors that payments upon obligations were to be made pro tanto and operated only to satisfy the liability of Blair to the extent of the payment made.
Hal H. Smith acted as depository for the committee of trustees and now has $26,442.57 which was earned by Mr. Blair as a member of the committee of the American Bond & Mortgage Company, in addition to such securities as were not disposed of pursuant to the assignment agreement.
This proceeding was brought to reach these assets, for in spite of the assignment, plaintiff brought suit against Blair and after trial upon the merits recovered a judgment in the amount of $34,600. No proceedings were taken to review that judgment nor was a motion for a new trial filed, with the result that it has become final. While the principal case was pending, plaintiff instituted garnishment actions against H. O. Chapoton, Frank W. Merrick and Hal H. Smith (Russ S. Jenks having died), as garnishee defendants, on May 24, 1935, October 26, 1935, and February 24,1936. Thereafter on May 3,1937, additional garnishment proceedings after judgment were instituted against Smith alone as garnishee defendant. The disclosure filed to all these suits disclaimed possession of any assets belonging to Frank W. Blair and the issue so raised and the determination thereof resulted in this appeal.
The lower court held that the assignment of Mr. Blair’s assets to H. O. Chapoton, Buss S. Jenks, Frank W. Merrick and ITal H. Smith, as a committee of trustees, to be liquidated and applied upon the indebtedness of the assignor constituted a general assignment for the benefit of creditors, which was void for failing to conform to the provisions of 3 Comp. Laws 1929, § 15352 (Stat. Ann. § 27.2417); that the garnishee defendants were liable to the plaintiff for the properties held by them other than money received from the committee of the American Bond & Mortgage Company; that such money could not be garnisheed because there was no definite, existing, certain amount which could be said to be in the hands of the garnishee defendants which belonged either to Mr. Blair or his creditors; that garnishment proceedings cannot be sustained as far as this sum of money is concerned because the rights of the Union Guardian Trust Company were involved and they were not made a party to the proceedings; and that equity alone had jurisdiction to pass upon the questions herein involved inasmuch as an express trust existed which must be construed. From this disposition of the case both parties appeal. -
The statute cited (3 Comp. Laws 1929, § 15352 [Stat. Ann. § 27.2417]) provides in part that,
“All assignments, commonly called common-law assignments for the benefit of creditors, shall be void unless the same shall be without preferences as between such creditors and shall be of all the property of the assignor not. exempt from execution, and the instrument of assignment or a duplicate thereof, and inventory of the assigned property, a list of creditors of the assignors and a bond for the faithful performance of the trust by the assignee shall be filed in the office of the clerk of the circuit court. ”
Garnishee defendants argue that the assignment of February 10,1932, as supplemented by the agreement of August 12, 1934, constituted a special assignment for the benefit of only certain of Mr. Blair’s creditors and therefore was not subject to the terms of the above statute or to garnishment. What is meant by the phrase “common-law assignment for the benefit of creditors” is discussed at length in the case of Charles Maloney & Co. v. Gonhue, 152 Mich. 325, where it is said:
“An assignment for the benefit of creditors ‘commonly known and called’ such, has consisted of a writing amounting to a conveyance of the title to all, or substantially all, of a debtor’s property to another, in trust, for the purpose of closing out his business, converting his property into money, and distributing it among his creditors, to the extent of payment if possible, and, if not, proportionately, or with prescribed preferences. That would be a general assignment for the benefit of creditors, and is the ‘commonly called common-law assignment for the benefit of creditors.’ ”
In that case it appeared that the public schools in Escanaba were indebted to Gonhue, who in turn was the debtor of plaintiff and others. Gonhue gave a written order to the school directing it to pay one of his creditors the sum the school owed him. The court held that this did not constitute a common-law assignment which was void for failure to comply with statutory requirements, and that plaintiff could not garnishee the money so assigned. Defendants rely strongly upon this case, but it is so clearly in the category of cases where a particular creditor has been preferred to the exclusion of others that it can not be considered as controlling in tbe instant suit. Nor does it follow, as defendants apparently contend, tbat because some of tbe assignor’s property is omitted, tbe instrument constitutes a specific assignment for tbe benefit of particular creditors. So too, “tbe mere fact tbat a general assignment is made void for preferences does not take it out of tbe class of common-law assignments to wbicb it belonged. It is still wbat is known as a common-law assignment, though now made void.” Charles Maloney & Co. v. Gonhue, supra.
In Smith v. Mitchell, 12 Mich. 180, it was beld tbat tbe trial court was in error in not charging tbat a purported general assignment was void if it did not fairly dona fide assign all of tbe assignor’s property liable for tbe payment of debts, and tbat tbe assignee could not maintain trover as against one who stood in tbe place of a creditor.
In Price v. Haynes, 37 Mich. 487, tbe question presented was whether plaintiff bad shown in himself, as against creditors of bis assignor, a title to goods wbicb he claimed were transferred to him by a general assignment for tbe benefit of tbe creditors of one Congdon. Tbe court beld tbat tbe assignment did not include tbe assignor’s real property wbicb was liable for tbe payment of bis debts, and therefore it was void precluding plaintiff from maintaining an action in replevin.
Where the gfirnishee defendant argued that be bad title to the property in question under a common-law assignment for tbe benefit of creditors, the court refused to accept the argument because tbe parties never attempted to comply with tbe terms of the statute, pointing out that the bill of sale did not include all the property of the principal defendant as “be had a horse that was not included in the transfer.” Youghiogheny & Ohio Coal Co. v. Anderson, 186 Mich. 349. See, also, Hill v. Mallory, 112 Mich. 387.
One is forced to conclude that the failure of Mr. Blair to include all his property in the assignment to his committee of trustees does not mean that the character of the transaction is changed if in fact it was a common-law assignment for the benefit of creditors. Rather such an assignment-is made void by statutory enactment, and the property sought to be transferred is subject to garnishment.
That this result follows is clearly demonstrated by the adjudicated cases. Thus, where the assignor fraudulently withholds a true inventory of goods which he seeks to convey to a trustee under a general assignment for the benefit of creditors, the fraud perpetrated vitiates the transaction and the assignee may be garnisheed by the creditors of the assignor. Farrington v. Sexton, 43 Mich. 454.
In Beard v. Clippert, 63 Mich. 716, where a general assignment for the benefit of creditors was held void for failure to file the proper bond within 10 days from the time the assignment was made, the court indicated the remedies available to a creditor in these words :
“A creditor of the assignors after the time given by the statute to file the bond has expired, has two remedies open to him. He may proceed upon the equity side of the court, to have the trust carried out through the intervention of a receiver and the supervisory power of a court of chancery, or he may, if no other creditor invokes the aid of chancery, proceed to enforce his claim against the property of his debtor by levy of attachment, or execution, as if the attempted assignment has not been made.,”
In Baker v. Parkhurst, 119 Mich. 542, it was held that garnishment would lie where the garnishee fraudulently withheld a chattel mortgage upon the property of the principal defendant from record, and represented to mercantile firms that the principal defendant had a sound credit standing, upon the strength of which plaintiff extended credit. The proceeds secured by foreclosure of the aforementioned chattel mortgage were subjected to the writ. See, also, Heineman v. Schloss, 83 Mich. 153; McCuaig v. City Savings Bank, 111 Mich. 356.
The record shows that Mr. Blair resigned from his positions with the Union Guardian Trust Company but a month before this assignment was made; he sought to secure and liquidate his debts with that company by assigning to them a proportionate share of his earnings as a member of the bondholders’ committee of the American Bond & Mortgage Company; a substantial portion of his wealth was assigned to a committee of trustees to be converted into money and applied upon his large indebtedness, and the claim of the defendants that only those creditors who accepted the provisions of the assignment were to be favored is not supported by the testimony of Mr. Smith who gave any creditor who filed a claim notice that it had been received and allowed, or by the express direction to the committee of trustees “to pay and discharge in full * * * the claims of all the creditors of said first party, ratably and in proportion.” One concludes that this was an attempt to make a common-law assignment for the benefit of the creditors of Mr. Blair, which fails because all the debtor’s property not exempt from execution was not included and because matters of detail mentioned in 3 Comp. Laws 1929, § 15352 were not followed. And the property assigned having already been pledged, such creditors would have the benefit of their pledge as well as a pro rata share of the distribution of the trustees which would constitute a preference.
The 'garnishee defendants agree that if the assignment is void the judgment of the lower court should be affirmed, that is, the property held by them aside from money is to be subject to the garnishment writ. Plaintiff, however, argues that since the money in the hands of the committee may be definitely apportioned between Mr. Blair and the Union Guardian Trust Company, the former’s share should also be subject to the writ.
"When the assignment of February 10, 1932, was made, Mr. Blair had been on the bondholders’ committee of the American Bond & Mortgage Company for some two years, and the agreement of January 23, 1932, whereby he allocated to the Union Guardian Trust Company that proportion of the total fee as the period of time from October 24,1929, to January 13, 1932, bears to the total period of his service on said committee was made with the thought that the affairs of the committee would be wound up within the next two years, and that both parties would receive a like amount. However, in 1933, when bank difficulties arose, it became apparent that the work of the bondholders’ committee would go on indefinitely, and when $5,000 was turned over to the committee of trustees by Mr. Blair as part of his fees for work done on the bondholders’ committee, the Union Guardian Trust Company insisted that they were entitled to the first fees and demanded the $5,000 check. Mr. Smith testified:
“In the spring of 1934 the Union Guardian Trust Company advanced its claim that under the assignment it did not have to wait to determine its pro rata part of the fees recovered from the American Bond & Mortgage Company, but that the committee was liable to turn over to it the first money received up to an amount which they did not specify but it would be in their opinion a reasonable charge for Mr. Blair’s services on that committee during the time he served on the committee, and up to the time he resigned as an officer of the trust company.”
Thereafter, fearing double liability, the American Bond & Mortgage Company committee executed an agreement with Mr. Smith and Mr. Blair whereby money earned by Mr. Blair for work done on the bond committee was turned over to Mr. Smith in trust, with power to invest the same in securities evidencing indebtedness issued by the United States, the income therefrom to be added to the principal fund or disbursed in the discretion of the trustee in accordance with the trust agreement of February 10, 1932. Mr. Smith was to hold such securities until a court of competent jurisdiction determined to whom they were payable, or until all parties involved stipulated the manner in which to dispose of these assets.
' Mr. Smith received $20,640.98 under the terms of this trust, and combined with the $5,000 received from Mr. Blair, plus increments derived from investments, he now has $26,442.57 of which plaintiff alleges Mr. Blair is entitled to $18,753.46 in accordance with the apportionment agreement reached by Mr. Blair and the Union Guardian Trust Company. Plaintiff arrives at this figure by means of the following formula:
1978 (1) - X $26,442.57(3) —$18,753.46(4) 2789 (2)
(1) Total days from January 13, 1932 to June 13, 1937.
(2) Total days from October 24, 1929 to June 13, 1937.
(3) Money in the hands of the garnishee defendants on June 13, 1937.
(4) Minimum share Blair’s creditors are entitled to in any event as of June 13, 1937.
The difficulty with the argument as presented is that it does not recognize that the Union Guardian Trust Company is not claiming under the instrument upon which this formula is based. Instead, as Mr. Smith testified, the company seeks the “first money received up to an amount which they did not specify but it would be in their opinion a reasonable charge.” Furthermore, the trust company was not made a party to these proceedings in spite of the fact that its interest became apparent upon the hearing of the garnishment issue. Plaintiff contends that the absence of the company as a party is not fatal to the proceedings, since the garnishee defendants elected not to have them a party by failing to mention their claim in their disclosures. However, the examination is in fact a part of the disclosure, and upon hearing the testimony of Mr. Smith, plaintiff was apprised of the Union Guardian Trust Company’s claim and should have interpleaded it at that time.
Thus, in Markham v. Gehan, 42 Mich. 74, it was said:
“It appears in the record beyond any controversy that the demand owing by defendants, and which the plaintiff seeks to recover from them as garnishees, was due not to the principal defendant alone, but to him and another person with whom he was joint contractor for building a church. There was therefore no ground for a recovery, and the judgment in favor of defendants must be affirmed with costs.”
In Marx v. Wayne Circuit Judge, 119 Mich. 19, the garnishee’s disclosure denied that it had a fund belonging to Herman Marx, but its subsequent examination under the statute disclosed the fact that it had a fund deposited by him in the name of himself and his brother as copartners. The court ordered them to be interpleaded on application of the plaintiff’s attorney. On appeal this court refused an application for mandamus to set aside the issue thus framed, saying:
“We are of the opinion that it is more reasonable to hold that the right of the plaintiff to try the title to this fund under the niethod pointed out by the statute (2 How. § 8085) should extend to any case where the disclosure and examination show a disputed claim to a fund in the garnishee’s possession, which the plaintiff claims to be the property of the principal defendant, or owing to him; and that there is no reason for limiting the application of the statute to cases where the fact appears in the disclosure, so called. The examination is in fact a part of the garnishee’s disclosure. ’ ’
Since the case was submitted to the court below without taking advantage of the statute at the trial, or attempting to take advantage of it until judgment was entered when the court refused to allow a motion .to interplead the Union Guardian Trust Company, plaintiff cannot now complain. Kennedy v. McLellan, 76 Mich. 598.
There is still another difficulty with plaintiff’s position. Since the Union Guardian Trust Company is now tailing a position which seems to be contrary to what a strict reading of the allotment agreement would warrant, and in view of the fact that the money is being held under an express trust, resort would have to be made to equity for a construction of the instrument and a determination of the rights of the parties thereunder. Plaintiff’s counsel may be right in their interpretation of this instrument, but ultimate adjudication must be made by a court of equity. Plaintiff can have no greater rights in this fund than has Mr. Blair.
“It is the uniform holding of the courts that the obligation of a trustee to the cestui que trust is an equitable and not a legal obligation, and that the trust cannot be reached by garnishment to enforce legal claims against the cestui que trust. * * *
‘ ‘ This rule obtains, unless the duties of the trustee have fully terminated and the amount due to the cestui que trust is definite and ascertained, and nothing remains except the duty of the trustee to turn over and deliver a definite sum to the cestui que trust.” Darling v. Dodge, 200 Iowa, 1303 (206 N. W. 266).
Until equity adjudicates the rights of the Union Guardian Trust Company and Mr. Blair in the sum held by Mr. Smith, the amount due Mr. Blair remains indefinite and unascertained thus precluding any attempt to subject the same to garnishment.
The judgment is affirmed. None of the appealing parties having prevailed, no costs will be allowed.
Sharpe, Potter, North, and McAllister, JJ., concurred with Chandler, J. Wiest, C. J., concurred in the result. Butzel and Bushnell, JJ.? did not sit. | [
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North, J.
In the circuit court of Berrien county Edith Sellars, who was a judgment creditor of Ross H. Lamb in the amount of $6,925.32, obtained' in a garnishment proceedings a judgment against W. R. Payne, as receiver. The American Surety Company, plaintiff herein, was the surety on Payne’s, bonds given in the receivership proceedings hereinafter noted. Payne as receiver having failed to satisfy the judgment rendered in the garnishment suit, plaintiff, demand having been made, paid the judgment. Thereafter plaintiff surety . company brought this suit to recover from Payne the amount it had expended in satisfying the judgment rendered against Payne as receiver. Plaintiff had judgment for $5,160.57 and costs.. Defendant has appealed.
In 1931 Payne was appointed by the comptroller of currency as receiver of each of two national banks in Berrien county. He forthwith gave bonds for the faithful discharge of, his duties as receiver. Plaintiff herein was the surety on these bonds. Ross H. Lamb served as attorney for the receiver. In( February, 1942, the comptroller of currency directed receiver Payne to pay Lamb for services rendered $3,981.77 out of the assets of one of the receiverships and $198.19 out of the assets of the other receivership. Accordingly, Payne on February 21, 1942, issued checks payable to Lamb for the respective amounts, but Payne did not deliver the checks to Lamb until on or about May 1,1942. Just shortly prior to such delivery, but subsequent to February 21, 1942, process was served on Payne, as a receiver, in the garnishment suit by which Edith Sellars sought to satisfy her judgment against Lamb. The record discloses that Lamb was indebted to Mr. and Mrs. Payne for money borrowed in excess of the amount of the two checks above mentioned; that he made an assignment to them of his attorney fees; and that when the checks were delivered to Lamb on or about May 1, 1942, he immediately indorsed and returned them to Payne. At this point controversy at once arose as to whether under her garnishment proceedings Edith Sellars had the prior right to the funds represented "by the checks or whether Mr. and Mrs. Payne, by reason of Lamb’s assignment to them, had the prior right thereto. Determination of this issue resulted in Edith Sellars’ garnishment proceedings in the circuit court being dismissed, on the theory that the prior right to the garnished funds was held by Mr. and Mrs. Payne. Edith Sellars appealed her garnishment case to the Supreme Court. The judgment entered in the circuit court was reversed and the case remanded. See Sellars v. Lamb, 303 Mich. 604. Thereafter, and on January 13, 1943, the circuit court in the garnishment proceedings'entered judgment for $3,981.77 and costs in favor of Edith Sellars and against Payne, receiver. No appeal was taken from this judgment. It was plaintiff’s payment of money to satisfy this judgment by reason of plaintiff being surety on the receiver’s bonds, and after receiver Payne had failed to pay, which gave rise to the instant suit and resulted in judgment in favor of the surety.
. One of the contentions of appellant is that the judgment in the instant case was void ab initio because it was entered against the receiver in his official capacity after he had been discharged. In this connection appellant asserts that the respective receiverships were closed in May and June, 1942. On the contrary the record clearly discloses that Payne as a receiver was not discharged until April 28, 1944; and prior to that date and on January 13, 1943, judgment had been rendered against the receiver. Hence there is no merit to appellant’s claim that judgment was void because it was rendered against the receiver after he had'been discharged.
While it is true, as appellant assorts that “A national bank receiver is an instrument of the comptroller of currency of the-United States and subject to his instructions” still this statement is subject to limitations. For example, the comptroller of currency has no power to relieve a receiver from liability on a judgment entered in a court of competent jurisdiction, as in the instant case. We are not in accord with appellant’s contention that ‘‘the act complained of (satisfaction of the judgment rendered against the receiver) was not one for which * * * the receiver or the bonding company should have to respond.” Instead plaintiff as surety ou the receiver’s bonds was liable for the payment of the judgment rendered against Payne as receiver.
It is also urged by appellant that : “ The bonds in question ran only to the comptroller of the currency for. his sole benefit, and third persons cannot recover under their provisions.” This assertion is not applicable to the instant case. The situation here presented is one in which the principal in the bonds failed to pay a valid judgment rendered against him as receiver, and thereupon satisfaction of the judgment was made by the surety on the receiver’s bonds, and the instant case was then prosecuted by the surety to recover from the principal the amount paid. Payne’s applications for these bonds contained provisions for reimbursement “should it (plaintiff) make payment” under its obligation as surety on the bonds. Hence recovery by plaintiff from defendant was in accord with the latter’s application for the bonds. It was not an attempt to recover by a third person who was not within the terms of the bonds or applications therefor.
The record is contrary to appellant’s contention that the comptroller of currency (obligee under the bond) released Payne, and therefore subsequent satisfaction of the garnishment judgment by the surety was a voluntary payment by the surety for which it can not recover against Payne in the instant case. "While it is true that prior to decision in Sellars v. Lamb, 303 Mich. 604, the comptroller of currency had taken the position that the assignment by Lamb to Mr. and Mrs. Payne took priority, over the garnishment of Edith Sellars, that position was abandoned by the comptroller after decision in the Sellars-Lamb Case and before Payne was discharged as receiver. Payne’s liability as receiver was not thereby released. Nor does the record justify appellant’s contention that'ultimate satis faction of the judgment in garnishment against Payne by the surety was a voluntary payment thereof. Instead the attorney representing Edith Sellars was demanding satisfaction of the judgment against Payne as receiver, and in consequence thereof the comptroller of currency was demanding of plaintiff as surety on the receiver’s bonds that, it should satisfy the judgment rendered in the garnishment proceedings. In doing so, the surety cannot be said to have made a voluntary payment.
We find no merit in appellant’s attempted reliance upon the assertion in its brief that: “Sellars could not-have collected the judgment which forms a basis of this action against either Payne, receiver, or his bondsman;” the foregoing being asserted on the claim now made “that Sellars was indebted to Lamb in an amount greater than the amount due upon the judgment from Lamb to Sellars. ’ ’ The record before us affords no basis- for the foregoing claim. On the contrary it appears that the judgment in garnishment was entered against Payne as receiver in January, 1943, but satisfaction thereof was not made by his surety until June, 1944; and in the meantime, so far as disclosed by the record, no attempt was made by Payne to assert a counterclaim against the garnishment judgment held by Edith Sellars. Furthermore a claim possessed by Lamb against Edith Sellars could not be used by Payne or his surety as a counterclaim or set-off against the judgment Edith Sellars had against Payne as receiver. ■ 3 Comp. Laws 1929, § 14132 (Stat. Ann.- § 27.826).
The judgment entered in the circuit court is affirmed, with costs to appellee. '
Carr, C. J., and Butzel, Bushnell, Sharpe, Boyles, Reid, and Dethmers, JJ., concurred. | [
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Sharpe, J.
Defendants, Carl F. DeLano and Mihkel Sherman, were tried, convicted and sentenced under an information which charged them with a criminal conspiracy to corrupt the legislature of the State of Michigan.
The information under which the above named defendants were convicted reads as follows:
“Victor C. Anderson, prosecuting attorney for the county of Ingham, for and in behalf of the people of the State of Michigan, comes into said court in the January term thereof for the year 1945, A.D. and give[s?] the court to understand and be informed:
“That heretofore, to-wit: on the 1st day of January, 1939, and on divers other days and times between that time and the 1st day of July, A.D. 1939 at the city of Lansing, and in the county of Ingham aforesaid, Mihkel Sherman, Max Rosenfeld, Ernest W. Alden, Plarry E. McKinney, Clayton R. McKinney, Martin W. Hildebrand, Carl DeLano, Edward J. Walsh, William Buckley and Francis Nowak, did unlawfully and wickedly agree, combine, conspire, confederate and engage to, with and among themselves, and to and with each other, and to and with certain members of the legislature, and to and with divers other persons to me unknown, wilfully and corruptly to affect and influence the action of the legislature of the State of Michigan, the senate, the house of representatives, and divers members thereof, in the consideration of and action on certain proposed legislative measures then and there' pending in and before said legislature, senate and house of representatives, to-wit:
“Senate í>ill No. 269, being
“ ‘A bill to provide for appointment of a board of examiners in naturopathy, and for the examination, regulation, licensing and registration of practitioners of naturopathy, and for the punishment of offenders against this act.’
and divers other measures and bills then and there pending in and before said legislature, the senate and the house of representatives, by then and there offering, tendering, promising, giving and receiving of bribes, money, and other things of value; and by promises to accept and receive such bribes, money, and other things of value; and by the actual giving and receiving of the same, he, the said Carl DeLano, being then and there a duly elected, qualified and acting member of' the senate of the State of Michigan; and Edward J. Walsh, William Buckley and Francis Nowak, being then and there duly elected, qualified and acting members of the house of representatives of the State of Michigan; and it being then and there the duty of said members of the said senate and of the house of representatives to refrain from accepting of the promises of' bribes, bribes, money, or other things of value, made, offered, or given for the purpose or with the intent of influencing such members in the performance of their official duties and particularly in the consideration of and action on bills and'proposed legislation pending before such legislature, senate and house of representatives, and they, the said Mihkel Sherman, Max Rosenfeld, Ernest W. Alden, Harry E. McKinney, Clayton R. McKinney and Martin W. Hildebrand, being then and there interested in the proposed legislative measures aforesaid, and in other measures then and there pending before said legislature, senate and house of representatives, and it being then and there their duty to refrain from the making of promises, the offering, tendering or giving of bribes, money, or other things of value whatsoever to’ the members of said senate and house of representatives, or to any one of such members for the purpose and with the intent of influencing said members of the senate or the house of representatives of the State of Michigan, or any of them, in the performance of the official duties of such members, and particularly in the consideration of and action on the proposed legislative measures aforesaid, or any.bill or proposed legislation pending in and before said legislature, senate and house of representatives, nevertheless well knowing their respective duties aforesaid, said defendants, and all of them, did corruptly, dishonestly, fraudulently, and illegally engage and participate in said conspiracy and confederate as aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.”
Because of the nature of the charge and the reasons and grounds of appeal, we deem it advisable to give a detailed statement of the history of the case. Sometime during the year 1937 Dr. McDonald of Benton Harbor, Michigan, together with others undertook to rejuvenate the American Naturopathic Association of Michigan, hereafter referred to as A.N.A. It was deemed advisable to interest chiropractors, in the association. Harry Williams was employed as an organizer to go about the State of Michigan and procure members for the A.N.A. On May 22, 1938, a meeting was held in the city of Bat- tie Creek, at which time a board of directors was elected. Mihkel Sherman and Martin W: Hildebrand were elected members of. the board of directors. Sherman was elected president and Hildebrand was made chairman of the finance committee. At this meeting, the bylaws were amended to bring their corporate structure up to date and thereafter meetings were held in June and October of 1938 for the purpose of carrying out the intentions of the persons interested in the subject of naturopathy. Sometime prior to December, 1937, the members of the A.N.A. decided to employ the services of a lawyer to draft a bill for the legislature legalizing the practice of naturopathy. A committee was selected to formulate such a bill and submit it at the session of the legislature in 1939.
It also appears that sometime during the month of December, 1938, arrangements. were made with Senator Baldwin to introduce the proposed naturopathic bill and about this time Harry R. Williams, as organizer and secretary of the A.N.A., came to Lansing, obtained a room in a local hotel and proceeded to carry on his activities as a lobbyist for the A.N.A. During the month of January, 1939, Williams learned that Senator Baldwin would not introduce the bill. Whereupon, arrangements were made with Senator Burhans to introduce the bill, but he became ill and was unable to take care of it. On or about the middle of March, 1939, Williams went to see Senator Howell ánd was advised by Senator Howell that he would not' introduce any bills at that session, but would find some one to introduce the bill. It also appears that a short time later Senator Howell brought Senator Shea to Williams and arrangements were made with Senator Shea to introduce the bill. Senator Shea was paid the sum of $500 by Williams for his services in in troducing the hill and Senator Howell was paid three or four hundred dollars.
The bill was introduced in the senate March 28, 1939, and referred to the senate public health committee. On April 30, 1939, an “emergent meeting” of the A.N.A. was called in the city of Detroit for the purpose of raising funds with which to take care of certain lobbying expenses and the raising of money to pay legislators. Upwards of 70 people attended this meeting and several hundred dollars wer'e raised and later forwarded to Williams. The bill was reported out'of the public health committee on May 3d. It was voted upon and passed by the senate on May 9, 1939, and transmitted to the house of representatives where it was referred to the committee on State affairs. Shortly after the bill had been referred to the above committee, Williams became convinced that some pressure would have to be exerted if the bill was to receive favorable consideration by. the committee; Sometime prior to. May 14, 1939, Williams had a talk with defendant DeLano, the purpose of which was to secure the influence of defendant DeLano in getting favorable action upon the bill. It appears that DeLano demanded $2,500 to use his influence in getting the bill out of the house State affairs committee.
Shortly after Williams ’ talk with DeLano, another meeting of members of the A.N.A. was called in Lansing. There were about 100 present at this meeting. The meeting was presided over by defendant Sherman who informed thos'e present that it was necessary to raise a substantial sum of money to get the bill through the legislature. Approximately $2,000 was raised at this meeting. The money was turned over to the treasurer of the association who gave Williams a check for $1,950 which Williams deposited in his bank account at Benton Harbor. About May 20th, Williams drew out the proceeds of the check, .came to Lansing and paid DeLano $2,000 and DeLano returned to Williams the sum of $100. Sometime later and upon receipt of a telephone call, Williams went to Kalamazoo to the farm home of DeLano at which time DeLano informed Williams that he, Williams, owed him some money.
The cause came on for-trial and at the conclusion of the people’s proofs, counsel for DeLano and Sherman moved for a directed Verdict upon the following grounds:
“First, that the information does not charge an indictable offense at common law.
“Second, that the information does not charge any offense.
“Third, that the evidence does not show that the defendant Carl DeLano committed any offense not cognizable by a justice of the peace.
“Fourth, that the evidence does not show that the defendant Carl DeLano committed any offense.
“Fifth, that the information alleges a concert of action betwen alleged givers of bribes, and alleged takers of bribes, and that conspiracy will not lie where concert of action is necessary to an offense.
“That there may not be a conspiracy founded upon a charge to commit bribery between persons, one charged with the intended'taking and several ■charged with the giving of the same bribe.
“Sixth, that where the concerted action of the giver and the taker is essential to constitute the crime of bribery, and indictment or information will not lie for conspiracy to commit bribery, if the conspiracy is charged to have in eluded both the prospective giver and the prospective receiver, although several persons are involved as prospective givers, in the alleged conspiracy.”
At the conclusion of all proofs the above motion was renewed and again denied. The cause was submitted to a jury who returned a verdict of guilty against defendants DeLano and Sherman. Subsequently, motions for a new trial were made by both defendants and denied.
Upon leave being granted, both defendants herein appeal. Defendant DeLano urges that prejudicial error was committed by the trial court in the following particulars: That the court was in error in denying the motion of defendant DeLano to quash the warrant and information for the reason that there is no proof that DeLano entered into a conspiracy to bribe the legislature; that at most he did no more than agree to act as a lobbyist; and that bribery can not be the subject or basis of a charge of conspiracy for the reason that it requires a plurality of agents and concert of action of two or more persons.
The principal question in this cause is whether a conspiracy to corrupt the legislature, as charged in the warrant and information, is an offense punishable under the laws of Michigan.
The charge of conspiracy is based upon section 505 of our penal code (Act No. 328, Pub. Acts 1931 [Comp. Laws Supp. 1940, § 17115-505, Stat. Ann. §28.773]), which provides:
“Any person who shall commit any indictable offense at the common law, for. the punishment of which no provision is expressly made by any statute of this State, shall be guilty of a felony.”
In People v. Beath, 277 Mich. 473, defendants were charged with a conspiracy to cheat and defraud and obtain money by false pretenses. It was claimed that defendants were found guilty of offenses unknown to the common law or to the statutes of the State. We there said:
“At common law, conspiracy to do an unlawful act was an indictable offense. There is no distinc tion between conspiracy to commit an act unlawful at tbe common law and one declared unlawful by statute. ’ ’
In the ease at bar, the common-law conspiracy charged in the people’s information was broad in scope and required a number of participants. There is evidence that a group of people organized to promote a bill to legalize the practice of a profession of which they were members; they hired Williams as a lobbyist who arranged for the introduction of the bill in the senate by paying two senators the “cost” of such legislative process; that the group held frequent meetings, the main purpose of which was the raising of money to be expended by Williams in influencing such legislation; that defendant Sherman was active in the-raising of funds for such purpose; that defendant DeLano was paid $2,000 and agreed to use such sum to influence members of the committee of the house of representatives to release the bill and thus assure its final passage.
The record contains competent evidence to sustain the charge that a conspiracy was formed for the purpose of corrupting’ the legislature by means of bribery. It was not necessary that DeLano and Sherman have knowledge of its inception or of "all of its ramifications. See People v. Garska, 303 Mich. 313; People v. Ryan, 307 Mich. 610; People v. Ryckman, 307 Mich. 631. Nor Wfis it necessary that they know all of the conspirators. See People v. Heidt, 312 Mich. 629. We conclude that the conspiracy to corrupt the legislature as charged in the warrant and information is an offense punishable under the laws of Michigan.
We note that the only testimony given as to the participation of DeLano in the conspiracy is that of the people’s witness Williams.
In People v. Zesk, 309 Mich. 129, we said:,
“The correct rule is well stated in 1 G-illespie on Michigan Criminal Law & Procedure, § 379:
“ ‘The credibility of an accomplice, like that of any other witness, is exclusively a question for the jury, and it is well settled that a jury may convict on such testimony alone, and it is not error for the court to refuse to charge that it is not safe to convict a defendant, on the uncorroborated testimony of an accomplice.’ ”
See, also, People v. Clark, 312 Mich. 665.
The credibility of the witness Williams was exclusively a question for the jury. There is evidence that DeLano and Sherman joined in the conspiracy to corrupt the legislature.
Defendant DeLano also urges that it was an abuse of discretion to deny"his motion for a separate trial. The reason given in- support of this motion is that his dealings with Williams were separate and apart from the conspiracy. Our holding- is contrary to such reasoning. Moreover, the granting of a separate trial is a matter of discretion for the trial judge. See People v. O’Hara, 278 Mich. 281; People v. Garska, supra; People v. Burczyk, 308 Mich. 194. The record does not sustain the claim that there was an abuse of discretion.
It is urged by defendants DeLano and Sherman that the remarks and conduct of the special -prosecuting attorney throughout the course of the trial were prejudicial and that the convictions should be set aside. Counsel for defendant DeLano lists 112 assignments of error relating to the prejudicial and derogatory remarks of the special prosecuting attorney. Space will not permit us to enumerate these remarks in detail. In many instances these statements were made without being followed by objections by defense counsel, while in other instances when rulings were requested, such rulings were given and the jury instructed upon the same.
In People v. Burnstein, 261 Mich. 534, 538, we said:
“Great care should be taken by prosecuting officers and trial courts thát no statement be made in the presence of jurors which would jeopardize a defendant’s right to a fair trial. But in the haste and heat of a trial it is humanly impossible to obtain absolute perfection, and of necessity some allowance must be made in determining whether impromptu remarks are to be held prejudicial. Statements should not be held prejudicial if they are made in good faith, and, when fairly construed, they do not appear to have been such as influenced the jury adversely to the rights of the accused.”
"We have examined the record carefully and note that the ease was hotly contested, but we are not convinced that the remarks complained of influenced the jury adversely to the righfs of the defendants.
Defendants urge that it was prejudicial error to admit the testimony of Clayton McKinney, as one of the people’s rebuttal witnesses, as such testimony consisted of matters which had been fully gone into by the people in its main case. It appears that the witness together with his brother operated a sanitarium at Centerville, Michigan, and had pleaded guilty to the information. Prior to the witness being placed on the stand, Mr. Kennedy, attorney for defendant E. W. Alden, objected to the witness giving any testimony. The trial court expressed the opinion that he could “see where there would be certain rebuttal as to the meeting in the, hotel;” that, “it was called to Mr. Alden’s attention, and which he denied, as to the $20,000.” The trial court also ruled, “I think certain parts there are proper for rebuttal, and I will allow him to go'ahead and if there is anything you feel he is not entitled to you may object, and I will consider the matter at that time.”
The witness was allowed to testify and testified that he had become a member of the A.N.A.; that he attended a meeting at the Olds Hotel on May 14, 1939; that Harry Williams and Dr. Alden presided over the meeting; that defendant Sherman was present ; that they were there for the purpose of raising funds; and that Dr. Alden made a statement that it was necéssary to raise money to get this naturopathic bill through the legislature. He identified a check for $1,000 payable to the A.N.A., issued by himself and brother for the purpose of matching dollars. It also appears that counsel for defendant DeLano failed to object to the procedure until McKinney’s testimony had been given. The trial court ruled that McKinney’s testimony might stand as to what Dr. Alden said on the occasion of the meeting “because it was called to his attention” and the record showed he denied it.
In People v. Utter, 217 Mich. 74, 83, we said:
“Rebuttal 'evidence is broadly defined as that given by one party to contradict, repel, explain or disprove evidence produced by the other party and tending directly to weaken or impeach the same. In practical application the line of demarcation between' rebuttal evidence, and that which should properly be given in chief before the prosecution rests is frequently more or less obscure, and it is a general rule that whether evidence which could have been offered before resting may be given in rebuttal is a matter within the discretion of the trial court. ’ ’
Under, the circumstances'of this case the rebuttal testimony given,by McKinney,'as limited by the trial court, was proper.
It is also urged by defendants that the court was in error in striking from the record and directing the jury to disregard testimony of Williams upon cross-examination relating to checks drawn by Wil liaras on July 13, 1937, in favor of M. H. Martin for $180 and another cheek drawn by Williams on July 31, 1937, in favor of M. H. Martin for $180.23, the said Williams having admitted that he had no account in the bank upon which the checks were drawn at the time of drawing. It appears that in 1937 Williams made an application for life insurance, to Martin, an agent of a life insurance company; that the checks were protested for nonpayment as Williams had no account in the bank at that time; that later Williams had made payments on these two checks until there whs on May 15,1939, a balance of $65.44. No criminal warrant was issued as a result of this transaction.
The trial court ruled:
“There was no criminal charge made against it. It is a civil situation and it is entirely within.the discretion of the court and the court ruled against you, something that happened in ’37 (1937).”
In People v. Pinkerton, 79 Mich. 110, 114, we said:
“In a criminal case, we do not think it competent to compel respondent, who is a witness, to answer questions irrelevant to the issue, having a tendency to bring in other charges. Whatever, latitude • is proper in cross-examination to test veracity, it can not properly introduce independent issues against the person who is both witness and respondent.”
In People v. McArron, 121 Mich. 1, 36, we said:
‘ ‘ The latitude allowed in cross-examination should not ordinarily go so far as to permit the introduction of evidence which has no legitimate relation to any of the issues on trial, and which is at the same time of such a character as to be likely to be applied to them by the jury, and improperly to affect, the verdict.”
In People v. MacCullough, 281 Mich. 15, we said:
“The discretion of the trial court upon the subject of cross-examination on collateral matters is not subject to review unless it is shown to have been grossly and oppressively abused. So far as the cross-examination of a witness relates either to facts at issue or relevant facts, it is a matter of right; but when its object is' to ascertain the accuracy or credibility of a witness, its method and duration are subject to the discretion of the trial judge and, unless .abused, its exercise is not the subject of review. ’ ’
The issue between Williams and Martin was a civil matter and was in no way connected with the conspiracy charge. There was no abuse of discretion upon the part of the trial court in instructing the jury to disregard this testimony.
It is also urged that it was error to admit in evidence a letter written by Dr. Fred Wright to E. E. McMullen. Dr. Wright died approximately two years before the information was filed and E. E. McMullen was not named in the information as a co-conspirator or as a defendant. The letter reads as follows:
“American Naturopathic Association op Michigan
(Inc., Not for Profit)
General Office: 7308 Hamilton Avenue Detroit, Michigan.
Flint, Michigan
April 26th, 1939.
12.10 midnight.
“Dr. Elmer É. McMullen, D. C.
Fremont, Michigan.
11 My Dear Dr. Mac:—
“I received your letter yesterday, and I can’t tell you how I appreciate the sentiment and regards that you have expressed to me. I have seen much of the world and I have 'learned by bitter experience that to deal with your fellow man honestly is the best policy to pursue.
“All any man has in this world Mac. is the reputation he bears of dealing honestly with his fellow man, both Mrs. W. and I appreciate very much the sentiment you expressed in your letter, we both thank you very much and may the day never come when you will be sorry for the confidence you have, placed in me.
“Now Sere is the Latest News
“You will remember that Dr. Faulkner and I underwrote for the board the obligation of Dr. Y/illiams in Lansing to the extent of $200 to cover certain conditions which you and I understand, this check was dated ahead, payable on the 27th of April, and was to be paid to certain people ONLY WHEN THE BILL WAS REPORTED OUT OF COMMITTEE, you will remember this was the instructions of the board to Dr. Williams, now listen Dr. Mac.— on Tuesday, the 25th, at 6.10 p.m. Harry came to my office, said he had. showed the check to certain men interested, and that they said ‘We don’t do business that way, if your money is laid on the board this a.m. as you were told your bill would have been reported out as we said,’ So Harry said-‘I have brought the cheek back to you Fred knowing you,had a hundred bucks on it.’ He wanted me to cash it so he could go back to Lansing and close the deal. I said ‘not on your life Harry, the instructions of the board was to pay this money iohen the hill was reported out and not before, if I done this knowing the check was' advance dated I would be breaking faith both with Dr. Paul and the board — the check would be protested and I would be left holding the bag for $200.
“Harry then said he was checking out of the whole damned business, would get his, books, in. Lau-. sing, take them to McDonald that night and quit the game that he was unable to take care of his family and was broke and sick of the whole business, that if some of these wise guyés who thought they could do a better job than he had, they now had the chance to try it out, that they wouldn’t get very far if they tried.
“With this thought expressed to me he pulled out for Benton Harbor, he gave me permission to quote him as above. I got Dr. Paul on the phone, told him "about the check, that I would send it to him in the. a.m. and for him to send me his check for the $100 this he said he would do, now here is the funny thing about it — Harry goes thru to Benton Harbor as his intentden and Í)r. McDonald talked him into sticking to the game some way, as he sent me this wire this morning—
“ ‘1939 — April 26th, 2:00 p.m.
“269 absolutely coming out must take care of it wire it to me please don’t fail me. Harry.’
“I called him at Lansing on the phone, he said McD..had talked him into sticking, that Dr. Paul had wired him $100 and asked me to do the same, I called Dr. Paul and found out it was all right, that he — Paul had sent the money, I went to the Postal Tel. and sent the $100, so now there shouldent be any more holdup so far as the Senate is concerned.
“Now you know just how the land lays up to the present hour, but Mac., somehow I seem to feel that there is a Nigger in the woodpile somewheres, but I cant just put my finger on him at the present time, what do you think about it? how the House will be taken care of I dont know, but one thing is certain— I am not putting another darned cent in this deal until some of these Dudes have pain in their Dues and. cleaned up their Memberships. You will find many mistakes in this letter but Mac. I am dog goned tired but thought you would like to know what was in the wind.-
“With kind regards to the wife, and family from Mrs. Wright and my self, I will say Good Morning.
“Dr. Feed.”
When the above letter was offered in evidence, Mr. Kennedy, counsel for defendant Alden, objected to its admission for the reason that it was hearsay testimony and a communication from a man now dead and who was not named as a co-conspirator. Counsel for defendant Sherman made the same objection. The trial court admitted the letter on the theory that it was part of the res gestae.
In People v. Wilcox, 303 Mich. 287, one Cell made collections from various illegal businesses in the city of Hamtramck and made payment to the prosecutor’s office and the sheriff’s office. At the trial of the above case Gell was deceased, but had been named as co-conspirator and a defendant. One Block had been named in the information as a co-conspirator but not as a defendant. Objections were made to the testimony given by Block to the effect that he, Block, paid Gell monthly sums for the sheriff’s office so that Block could operate a handbook in Hamtramck. We there said: “The relations with Elik Gell were part of the res gestae and everything that Gell did was in furtherance of the conspiracy.”
It should be noted that when the letter was offered in evidence counsel for DeLano offered no objections to its admission and -later made use of the letter in his. cross-examination of Williams. While the letter doe's not mention either of the defendants DeLano or Sherman, yet we think the action taken by Dr. Wright as evidenced by the letter written by him was a part of the conspiracy and as such was admissible in evidence.
It is also urged that the court was in error in striking out the testimony of character witnesses for defendant Sherman. It appears that the witness Hubbard lived in Detroit since 1902, had been Sher^man’s patient for approximately 20 years. He considered Sherman’s general reputation for honesty and integrity in the community as very good. He never talked with anyone about Sherman. He knew that Sherman lived in Farmington, but had never been to his home. On examination the following questions were asked and answers given:
“Q. With whom did you ever talk about Dr. Sherman?
“A. I don’t know as I ever talked with anybody about him.
“Q. So that the opinion you have given us here is your own personal opinion?
“A. Yes, sir, absolutely.”
A. J. Cetnar, a character witness produced in behalf of Dr. Sherman, testified that he had known-Dr. Sherman since 1939; that he knew defendant’s reputation in the community in which he resided for honesty and integrity and that it was very good. However, upon cross-examination the following questions were asked and answers given:
“The Court: Did you ever talk with anyone in the community in which he resides about his reputation?
“A. No, I haven’t.
“The Court: Do you know where he lives?
“A. Well, I don’t know off hand.
“The Court: You never talked with anyone in that community about his general reputation?
“A. No, I don’t Your Honor, I am not close enough here.
“The Court: What you are giving here is your personal appraisal of the man?
“A. That right.”
The record shows that the witnesses were testifying as to their personal opinion of Dr. Sherman.
In People v. Nemer, 218 Mich. 163, we quoted with approval from 1 Wharton’s Criminal Evidence (10th Ed.), § 58, as follows:
“Character, in the sense in which the term is used in jurisprudence, means the estimate attached to the individual by the community, not the real qualities of the individual, as conceived by the witness. It is not what the individual really is, but what he is reputed to be, generally, by the society and the community in which he moves and resides. So, a witness called to speak as to character can not give the results of his own personal experience and observation, or express his own opinion, but he is confined to evidence of general reputation in the community where the defendant resides or does business. Such a witness, so confined to general reputation, may be examined for the purpose of testing his opportunities of ascertaining that reputation.”
In People v. Albers, 137 Mich. 678, we held that the opinion of witnesses as to accused’s character for honesty and integrity, based on personal knowledge and not on reputation, is inadmissible. In view of the authorities above quoted, the ruling of the trial court in instructing the jury to disregard the testimony of the two witnesses was correct.
Other questions have been raised, but in view of the fact that decision on these questions does not affect the result of our decision, we forego discussion of such questions.
The judgment of conviction in each case is affirmed. .
Butzel, Bushneie, Boyles, Reid, North, and Déthmers? JJ., concurred. Carr? C. J., did not sit, | [
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Carr, C. J.
This is an.appeal from a decree requiring the principal defendants, Merton M. Ash-don and Maud H. Ashdon, his wife, to specifically perform their agreement to put the north 18 feet of the northwest fractional quarter of section 18, Newton township, Calhoun county, Michigan, “in condition for use as a passable highway, ’ ’ from the property now owned by plaintiffs Earl D. Griner and Esther M. Griner, his wife, to the public highWciy. ( \
For several years the Ashdons had owned a tract of land lying on the shores of Cotton lake in Calhoun county. On October 2, 1941, plaintiffs purchased from these defendants on land- contract a portion of this land for the purpose of erecting a home thereon. This contract did not contain a grant of an easement of a right of way to this parcel over the remaining lands of the grantor.
Plaintiffs claim that when they were negotiating with defendants they were told that a road would be built from the highway to their property. When they received their contract and discovered that no provision had been made therein for a right of way they advised the sellers’ attorney, who prepared a rider to the contract, which was executed by all the parties and contained the following language:
“It is understood and agreed that the attached contract carries with it an easement from the first parties to second parties of a right of way in and to the property described in the attached land contract, to be used in common with others. Said right of way to be 18 feet in width and extending from the west boundary line of said section 18 and lying adjacent to the north boundary line of said section 18.
“This attached contract is understood to be a contract dated October 2,1941, running from Merton M. Ashdon and Maud H. Ashdon, husband and wife, to Earl D. Griner and Esther M. Griner, husband and wife, and conveying land situated in section 18, town 3 south, range 7 west, which said land lies 879 feet east of the northwest corner of said section 18.”
Plaintiffs then built a permanent home on the property, which they began to occupy in the spring of 1942, and as access thereto used a meandering right of way, defendants having thus far failed to make the 18-foot right of way, mentioned in the contract, passable. Discussions concerning access to the property continued until June of 1944, when defendants began a suit against plaintiffs, because of their failure to pay the remainder of the purchase price of the land. This action was discontinued because of a stipulation between the parties, dated October 20, 1944, in which it was provided that plaintiffs were to pay the sum of $341.86, and defendants were to execute and deliver a warranty deed and “also to provide an easement for the use of a right of way over the property of defendants located in the northwest corner of said section, beginning at approximately 422 feet east of the northwest corner of said section, said right of way running in a meandering line around a pond located in the northwest quarter of said section to a point on the public highway along the west line of said section 200 feet more or less south of the -northwest corner of said section, to be used as a highway until the rigbjj of way across the north 18 feet of the northwest one quarter of said section has been put in condition by defendants to be used so that it will be passable as a highway.”
The stipulation further provided that defendants “have at the date hereof let a contract for the improvement of the right of way over the north 18 feet of said section from the property owned by plaintiffs to the highway along the west line of said section, that a contract for said right of way pro vides that it shall he completed and pnt in passable condition as soon as possible.”
The deed, which is dated October 25, 1944, contains the following language:
“This grant is subject to an easement for highway and road purposes over the north 18 feet of the above described property, and there is also hereby conveyed an easement for highway and road purposes over the north 18 feet of the northwest fractional quarter of said section 18, extending from the property hereby conveyed to the west line of said section.
“There is also hereby conveyed the right to use for highway and road purposes a right of way over the property of the grantors located in the northwest corner of said section, beginning at approximately 422 feet east of the northwest corner of said section, said right of way running in a meandering .line around a pond located in the northwest one quarter of said section to a point on the public highway along the west line of said section 200 feet more or less south of the northwest corner of said section, to be used as a highway and road until the right of way across the north 18 feet of the northwest quarter of said section has been put in condition by the grantors and made passable for highway and road purposes.”
About a year later defendants conveyed some of the property, encumbered with the meandering easement, to Lyle E. Ashdon and Laura Mae Ashclon, because of which they were made parties defendant to the bill of specific performance. About this time a fill across the pond at the west end of the right of way was completed, which defendants claim put the 18-foot highway into passable condition, and they fenced off the meandering way which plaintiffs had been using across defendants’ property. Thereupon plaintiffs filed their bill for specific performance and a temporary injunction was issued restraining defendants fronpinterfering with plaintiffs’ use of the meandering way until the 18-foot right of way was completed and put in passable condition.
In their answer to plaintiffs’ bill, defendants contended that the 18-foot roadway had been completed on or about November 20, 1945, and was in passable condition, and that they were not required to furnish any other right of way. They denied any breach of the covenants in their deed, sought dismissal of plaintiffs’ bill, and, by cross bill, asked that plaintiffs be enjoined from further trespassing upon defendants ’ lands, and that they be required to pay for their use of the meandering way and the damages to defendants’ fence.
The trial court said:
“Defendants’ attorney contends there is no contract or agreement to be specifically performed. How anyone can read the stipulation entered into by the parties in the former suit and the deed given in compliance therewith and make such a contention is hard for the court to understand. It is specifically agreed between the parties in said instrument that defendants will put the 18-foot right of way, along their north line in condition so that it will be passable as a highway. Defendants’ attorney contends there is no time specified as to when it shall be done. Then the law would require it to be done in a reasonable time. However, the stipulation says that a contract has been let and it will be completed and put in condition as soon as possible and that plaintiffs should have an easement around the pond until it is completed. Defendants have made a fill across the pond in the northwest corner of the property and while they have done nothing whatever to improve the balance of the 18-foot right of way to plaintiffs’ property, they contend the work on the right of way, to make it a passable highway, is completed, and attempted to stop plaintiffs from using the meandering right of way around the pond, until they were restrained by order of this court.
“It is apparent under the evidence as submitted, that defendants have agreed to put the 18 feet reserved as a right of way along their north line, in condition so that it will be passable as a highway. So the sole question to be determined in this suit is, have they failed to carry out their agreement in that regard, -and 'are plaintiffs entitled to specific performance of this said agreement?
“The evidence shows that the only work the defendants have done on said right of way is to make a fill of some 400 feet across a pond in the northwest corner of the property. This fill was made of stones, sand, clay and some gravel and the fill is not over 10 to 12 feet wide on top at the most, and is not always passable except in dry weather. Due to the Condition of said fill, it is not safe to travel in bad weather, and if one gets out of the ruts for a moment, he is liable to run off into the pond. The balance of the right of way is overgrown with trees and juniper brush, and there is nothing but a sort of" cowpath of one track meandering through the trees and brush. Testimony shows that this track is not entirely south of the north section line on defendants ’ property. To travel the single track, it is necessary to travel over the north section line to avoid hitting trees growing in the right of way. The great weight of the evidence shows that there is not at the present time a passable highway over said north 18 feet of said property. The testimony of the two surveyors offered by the plaintiffs and defendants show that the north fence is not on the section line, being about one foot north of the section line at the northwest corner and about seven feet north of the section line at the plaintiffs’ property at the east.
“The testimony shows that many persons have had their cars damaged while traversing said right of way, Or rather, the road or path across the said right of way, by stumps and, or, roots of trees, that at certain times of the year it is impossible for tradesmen to travel said roadway to plaintiffs’ home due to the muddy, rutty condition of the road and also to the fact that the roots of trees growing in said right of way extend out into the road. Since the fill was made over the pond, many persons, due to the condition of it, have been afraid to travel the same except in dry weather, and then only in first or second gear. Some persons have been stuck and have had to be hauled out with a truck. A-thorough review of all of the evidence establishes the fact that defendants Merton M. Ashdon and Maud H. Ashdon have failed to carry out their stipulation and agreement made at the time of the execution of the deed to plaintiffs to put said right of way in condition for use as a passable highway, and that plaintiffs are entitled to have their agreement specifically performed by defendants Merton M. Ashdon and Maud H. Ashdon by putting said 18-foot right of way in condition to be used so that it will be a passable highway.”
Defendants contend on appeal that they did not enter into an agreement to construct a passable highway along the north section line, but they nevertheless did provide one. This, they argue, should terminate the easement of a meandering right of way over their lands. They insist that the 18-foot highway was completed on November 21, 1945, and has been in constant use ever since, with very little or no repair; that in the event it is finally determined that they are required to do more work on this right of way, it should only be after a resurvey and proper determination of the location of the section line.
On our review de novo, we do not find any obligation in the instruments of title, or imposed by acts of the parties, that would require plaintiffs to de termine the correct location of the section line. They are entitled, under their deed, to a passable highway over the north 18 feet of the fractional quarter section from their property to the west line of the section.
There is ample testimony to support the finding of the trial judge that defendants Merton M. Ashdon and Maud H. Ashdon have failed to carry out the terms of their stipulation and agreement by reason of which plaintiffs paid the balance of their purchase price and accepted a deed to the property. Defendants agreed to provide a passable highway, have not done so, and should be required to specifically perform their obligation. The decree is affirmed, with costs to appellees.
Butzel, Bushneel, Sharpe, B otees, Reid,' North, and Dethmers, JJ., concurred. | [
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Sharpe, J.
Plaintiffs filed a bill against defendants Anthony Urbani and Cesidia Urbani, his wife, to restrain the violation of a building and use restriction in a subdivision located on the southwest corner of Thatcher street and Livernois avenue in the city of Detroit.
The property owned'by defendants is subject to the following restriction:
“The said premises shall at no time be used for manufacturing purposes, nor for the conduct of any offensive or dangerous business, nor for the sale or distribution of spirituous or malt liquors, or the conduct of the liquor business at wholesale or retail. ’ ’
Defendants acquired part of the property in 1936 and the rest in 1941. In 1940, Mr. Urbani estab fished a bowling alley on the premises under the name “Varsity Recreation.” In July, 1944, he applied for transfer of a liquor license, but it was denied. Prior to the rejection of defendant’s application for a liquor license and on August 2, 1944, a number of the residents of the community in which the property is located signed a petition addressed to the police department of the city of Detroit, the common • council of Detroit, and the liquor control commission objecting to the granting of a license to sell liquor on the premises owned by defendant. On November 25, 1944, a memorandum was sent from the police department to the Michigan liquór control commission advising it that the police department could not approve defendant’s application for the transference of a liquor license because the majority of the residents had opposed the issuance of the same.
In April, 1945, defendant circulated a petition among the residents of that area for the purpose of obtaining their consent to the granting of a liquor license to him. Defendant again made application for a liquor license. On August 29, 1945, at 6:42 p.m., he tvas notified by the Michigan liquor control commission that his application for a license had been granted. Before defendant’s place of business was closed for that evening, he had already completed sales of liquor.
On October 26, 1945, plaintiffs filed their bill of complaint seeking to restrain defendants from selling liquor at the place heretofore mentioned.
The cause came on for trial and the trial court entered a decree restraining defendants from selling or distributing liquor on the premises involved. Defendants appeal and urge that plaintiffs were guilty of such laches in the. enforcement of the building restrictions as to render enforcement thereof inequitable. In support of his claim defendant urges that he made an initial investment of more than $13,000 and, encouraged by the silence of his neighbors, contracted for fixtures, paying almost $2,500 down and obligating himself to the extent of $7,000 more; and that he contracted for the remodeling of the premises at a. cost of $2,500.
Defendants rely on McKee v. City of Grand Rapids, 137 Mich. 200, 212, where we said.
“Equity will not now lend its aid to a party to compel an expensive work to be undone which the party might, by planting a bill in equity in reasonable season, have prevented.”
We have examined the above case and find that the facts from which the above principle was enunciated are not comparable with the facts in the case at bar.
In Angeloff v. Smith, 254 Mich. 99, we said:
“The doctrine of laches is founded upon long inaction to assert a right, attended by such intermediate change of conditions as renders it inequitable to enforce the right. Epstean v. Mintz, 226 Mich. 660.’’
In Carey v. Lauhoff, 301 Mich. 168, we applied the rule laid down in Sanders v. Campbell, 231 Mich. 592, where'it was held that even where there was delay in asserting the right, that of itself did not constitute laches; but that it must appear the delay resulted in some prejudice to the party asserting laches which would make it inequitable to disregard the lapse of time and incidental consequences.
In the case at bar, defendant knew when he purchased the property as early as 1936 that the sale of intoxicating liquors was forbidden on the premises he purchased. He knew in 1944 that a major ity of the residential owners were opposed to the granting of a license to sell intoxicating liquors on these premises. His claim of laches can only arise from the time that plaintiffs knew he was conducting a har for the sale of liquor until plaintiffs filed their bill of complaint. This period of time was from August 29, 1945, to October 26, 1945. The money spent by defendant for acquiring the rights of one Bejczy in a license to be transferred, subject to approval of the liquor control commission, to its present location was prior to the granting of the liquor license to defendant. There is no evidence that plaintiffs knew that defendant -had purchased the license from Bejczy, nor is there any evidence that plaintiffs knew defendant had contracted for furniture and fixtures. At best plaintiffs can only be charged with knowledge that defendants were mak-, ing some improvements in their place of business. The delay of approximately two months under the circumstances of this case does not warrant a finding of laches. Defendants knowingly violated the restrictions without any reason to believe that plaintiffs were consenting to such violation.
The decree of the trial court is affirmed, with costs to plaintiffs.
Carr, C. J., and Butzel, Bushnell, Boyles, Reid, North, and Dethmers, JJ., concurred. | [
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Bronson, P. J.
Plaintiff-appellant, Edith L. Hobbs, brought suit against defendant-appellee, Michigan State Highway Department, for damages arising out of an automobile accident occurring on 1-75 in Royal Oak in which Gailen Hobbs, appellant’s decedent, was killed when the automobile he was driving plunged off an overpass bridge.
The fatal accident occurred on May 22, 1972. Suit was filed in the Court of Claims on October 9, 1973, claiming, inter alia, that the highway department had been negligent in designing, constructing and maintaining the bridge and that this negligence was the proximate cause of the accident.
A motion for accelerated and/or summary judgment, as amended, was filed by the highway department, which asserted that the Court of Claims lacked jurisdiction over Hobbs’ claim because she had failed to file her complaint, or a notice of intention to file the same, within one year after the claim had accrued as required by the Court of Claims Act, MCLA 600.6431(1); MSA 27A.643K1). The Court of Claims judge granted summary judgment in favor of the highway department on that basis. It is from this order that Hobbs appeals.
Both the parties and the Court of Claims judge concluded that the notice, statute of limitations, and liability provisions of the Court of Claims Act control this case. Summary judgment was predicated thereon, and this appeal has proceeded on that assumption. We are compelled to point out, however, and base our decision on, a different statutory scheme.
MCLA 691.1411; MSA 3.996(111) provides as follows:
"(1) Every claim against any governmental agency shall be subject to the general law respecting limitations of actions except as otherwise provided in this section.
"(2) The period of limitations for claims arising under section 2 of this act shall be 2 years.
"(3) The period of limitations for all claims against the state, except those arising under section 2 of this act, shall be governed by chapter 64 of Act No. 236 of the Public Acts of 1961.”
Chapter 64 of Act No. 236 of the Public Acts of 1961 is the Court of Claims Act. It appears, therefore, that any claim brought against the state under section 2 of the general highway statute, MCLA 691.1401 et seq.; MSA 3.996(101) et seq., is subject to a different two-year statute of limitations.
In addition, claims arising under § 2 are subject to a notice requirement different from and expressly exclusive of the notice provision appearing in the Court of Claims Act. The notice requirement of the general highway statute provides, in pertinent part:
"(1) As a condition to any recovery for injuries sustained by reason of any defective highway, the injured person, within 120 days from the time the injury occurred, except as otherwise provided in subsection (3) shall serve a notice on the governmental agency of the occurrence of the injury and the defect. The notice shall specify the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant.
"(2) The notice may be served upon any individual, either personally, or by certified mail, return receipt requested, who may lawfully be served with civil process directed against the governmental agency, anything to the contrary in the charter of any municipal corporation notwithstanding. In case of the state, such notice shall be filed in triplicate with the clerk of the court of claims. Filing of such notice shall constitute compliance with section 6431 of Act No. 236 of the Public Acts of 1961, being section 600.6431 of the Compiled Laws of 1948, requiring the ñling of notice of intention to file a claim against the state. * * * ” MCLA 691.1404; MSA 3.996(104) (Emphasis added.).
Section 6431 of Act No 236 of the Public Acts of 1961 is the notice provision of the Court of Claims Act about which the parties have argued and upon which the summary judgment was based. The italicized language suggests to us, however, that the notice provision of MCLA 691.1404; MSA 3.996(104) will apply if this claim arises under § 2 of the general highway statute. It is to that question which we now turn.
Section 2, codified as MCLA 691.1402; MSA 3.996(102), provides as follows:
"Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fít for travel, may recover the damages suffered by him from such governmental agency. The liability, procedure and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in section 21, chapter 4 of Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 of the Compiled Laws of 1948. The duty of the state and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel. No action shall be brought against the state under this section except for injury or loss suffered on or after July 1, 1965. Any judgment against the state based on a claim arising under this section from acts or omissions of the state highway department shall be payable only from restricted funds appropriated to the state highway department or funds provided by its insurer.” (Emphasis supplied.)
Plaintiffs decedent clearly was a "person sustaining bodily injury or damage to his property”. The question whether his death was due to defendant’s negligent failure to keep "any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel”, is of course one of fact, to be determined by the trier of fact at a later stage in these proceedings. More important for our purposes here, plaintiff-appellant Hobbs has clearly pled sufficient facts to bring her claim under § 2. Accordingly, the notice and statute of limitations provisions previously set forth apply to this case.
It is undisputed that Hobbs filed no notice with the clerk of the Court of Claims within 120 days of the accrual of her claim as required by MCLA 691.1404; MSA 3.996(104). If we were to accept the statute as it now stands, such a failure on her part would permanently bar recovery. Supreme Court authority dictates a different result, however.
In Reich v State Highway Department, 386 Mich 617; 194 NW2d 700 (1972), our Supreme Court declared an earlier version of MCLA 691.1404; MSA 3.996(104) unconstitutional. That earlier version required notice to be filed within 60 days of the accrual of the claim. In holding this section violative of the equal protection clauses of our state and Federal constitutions, the Court stated:
" * * * [T]he notice provisions of the statute arbitrarily split the natural class, i.e., all tortfeasors, into two differently treated subclasses: private tortfeasors to whom no notice of claim is owed and governmental tortfeasors to whom notice is owed.
"This diverse treatment of members of a class along the lines of governmental or private tortfeasors bears no reasonable relationship under today’s circumstances to the recognized purpose of the act. It constitutes an arbitrary and unreasonable variance in the treatment of both portions of one natural class and is, therefore, barred by the constitutional guarantees of equal protection. * * * The notice provision is void and of no effect.” Reich v State Highway Department, supra, at pp 623-624.
The Legislature’s 1970 amendment, increasing the time limit to 120 days, has not prevented the "diverse treatment” condemned in Reich. It has not cured the equal protection difficulties engendered by arbitrarily separating, on the one hand, private from governmental tortfeasors and, on the other hand, their respective victims. We conclude that Reich is still good law in this state, that MCLA 691.1404; MSA 3.996(104) still does not pass constitutional muster, and that Hobbs’ failure to comply therewith does not bar her claim. Since that claim was filed within the applicable two-year statute of limitations period, MCLA 691.1411; MSA 3.996(111), the summary judgment entered in defendant’s favor must be reversed and this case remanded for further proceedings.
Reversed and remanded for further proceedings not inconsistent with this opinion.
We here expressly disapprove of the practice of filing a hybrid' motion labeled "summary and/or accelerated judgment”. The court rules are detailed and explicit in setting forth the various grounds for both breeds of pretrial motions. The one filed here, asserting lack of subject matter jurisdiction as a bar, is clearly a motion for accelerated judgment pursuant to GCR 1963, 116.1(2).
The Court of Claims Act provides a three-year statute of limitations. MCLA 600.6452(1); MSA 27A.6452G).
We note that the Court of Claims judge refused to grant summary judgment for defendant-appellee on one of the grounds urged — that it had no jurisdiction over or responsibility for the overpass bridge on I-75 on which the accident occurred. That finding was not appealed.
1970 PA 155, adopted August 1, 1970. | [
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Allen, J.
Defendants have appealed from the trial court’s opinion and judgment rendered in plaintiff’s behalf, in which the trial court found that defendants had breached a warranty against encumbrances, and in which plaintiff was awarded $3,000 damages. Plaintiff cross-appeals and seeks an increase in damages to $6,000. GCR 1963, 807.1
On May 1, 1967, defendants conveyed to plaintiff, a co-partnership consisting of James C. Holmes and Patrick J. Pulte, by warranty deed, a certain apartment house located in Ann Arbor. The warranty deed recited that the property was subject to a mortgage which grantors had given to Ann Arbor Federal Savings & Loan Association December 30, 1965. That mortgage was recorded, and plaintiff assumed and agreed to pay the mortgage.
However, the warranty deed failed to recognize the existence of a second mortgage in the amount of $9,000, given to Newton Realty Company on December 31, 1965, to secure a note payable to Newton Realty Company as a commission for the latter’s part in the transaction in which defendants had purchased the apartment house from another party. However, plaintiff’s agent and Patrick Pulte, one of plaintiff’s partners, specifically testified that they were aware of the second mortgage. In fact, in a letter dated May 3, 1967, defendants’ attorney advised plaintiff that Angelo Fileccia had established an escrow account iii the amount of $12,000 payable to Huron Title Company. Huron Title Company was apparently the title company organized in defendants’ attorney’s law office. According to the letter, Huron Title Company would use as much of the $12,000 as necessary to satisfy any judgment which Newton Realty Company might acquire in its litigation with the Fileccia brothers. As stated in the letter:
"Huron Title Company will take the responsibility of securing the discharge of the existing mortgage on the West Madison Street property which was given by Fileccia brothers to Newton Realty to secure a promissory note of $9,000.”
When defendants purchased the building in December 1965, they never realized the amount of income which Newton allegedly had represented to them, and refused to pay the $9,000 note when it came due. Newton, in turn, filed suit, and Fileccia counterclaimed on the grounds of fraudulent misrepresentation. See Newton Realty Co v Fileccia, 20 Mich App 674; 174 NW2d 603 (1969). Compare, Head v Benjamin Rich Realty Co, 55 Mich App 348, 351, 358; 222 NW2d 237, 239, 243 (1974). Our Court reversed the trial court’s award of damages as far as Fileccia’s claim was concerned, and remanded for the trial court to make a redetermination on this question. 20 Mich App 674, 678. Upon remand, the trial court used another method of computing Fileccia’s loss, and in an opinion of October 24, 1972, found that Fileccia was entitled to $984 as a set-off against Newton’s claim on the note. Fileccia’s application for leave to appeal was denied in our Court January 23, 1974, Docket No. 17104, and the Michigan Supreme Court denied their application for leave to appeal on May 1, 1974. 391 Mich 821. At oral argument, it was disclosed that the parties to this dispute are engaged in the process of satisfying the judgment and discharging the Newton mortgage.
In connection with the above litigation, Angelo Fileccia sought the assistance of Duncan Robertson, a real estate broker and appraiser, and wanted Robertson to testify as an expert witness in the trial. In the course of their discussion, Robertson, West Madison Investment Company’s agent, learned of the nature of the litigation and of the existence of the second mortgage. He then told Fileccia that he thought he had a client who was looking for a place to hide money and who might be interested in purchasing. Subsequently, their negotiations led to the May 1, 1967 conveyance in which plaintiff purchased the property for $235,000. Plaintiff concedes on the record that at the time of the purchase it had full knowledge of the escrow agreement and the then ongoing litigation.
Some three and a half years later, plaintiff, then in need of cash, sought to sell the property to a person named Pierce, who was in the process of establishing a partnership or a corporation. January 20, 1971, West Madison and Pierce signed a sales agreement for $250,000, of which $40,000 would be a down payment, with the balance to be paid in monthly installments. Closing was to occur March 20, 1971 or 15 days after seller produced good title. However, at the closing held April 16, 1971, Pierce’s attorney objected to the presence of the second mortgage, stating his clients would pay only $244,000, a reduction of $6,000, due directly to the presence of the Newton Realty encumbrance. Pierce’s attorney felt that title was not marketable; in fact the parties at this trial stipulated that Pierce and his attorney, if they had testified, would have said that the price was reduced by $6,000 at closing "due to their objection to the status of the title”.
Plaintiff then filed its complaint against Fileccia brothers, and sought $6,000 in damages. The trial court noted that the May 3, 1967 letter regarding the escrow agreement was vague as to when the second mortgage would be discharged, discussed the possibility of delay in resolving the NewtonFileccia dispute, and said that there was a present cloud on the marketability of title to the property at issue. Although the court subsequently determined that plaintiff was entitled to recover $3,000 in damages, our resolution of this case makes it unnecessary for us to consider the propriety thereof.
Basically, the problem before us is whether the second mortgage, based upon the Newton-Fileccia debt, was an encumbrance breaching the warranty of title when the parties to the instant transaction had simultaneously escrowed in writing sufficient money to cover any liability growing out of the Newton-Fileccia dispute. We find that the trial court erred in finding that there had been a breach of warranty.
Plaintiff negotiated with defendants and obtained the agreement that defendants would assume the obligation to discharge, by way of escrow account, any obligation they may owe to Newton Realty Company. As noted in Maser v Gibbons, 280 Mich 621, 626-627; 274 NW 352, 354 (1937):
"The applicable principle is thus stated in 66 CJ p 907:
'Incumbrances created, induced, or suffered by the purchaser under a contract of sale cannot be urged by him as an objection to the title, nor do they constitute a breach of the warranty in the vendor’s deed given in pursuance of the contract of sale.’
"The rule would apply to an assignee or agent of vendee.”
See also 92 CJS, Vendor and Purchaser, § 217, pp 81-82.
Plaintiff relied upon the escrow agreement and was in fact induced to purchase defendants’ property by the execution of that agreement. Plaintiff, admittedly in need of funds in early 1971, cannot now complain that the presence of the Newton mortgage constituted a breach of warranty. The fact that Pierce’s attorney at the closing date took advantage of plaintiff’s need for cash is not the fault of defendants who stood ready at all times to cover any obligation which might be found due under the second mortgage.
Further, we agree with the trial court that plaintiff’s reliance upon Edwards v Clark, 83 Mich 246; 47 NW 112 (1890), is misplaced, and that Edwards does not preclude the admission into evidence of the May 3, 1967 letter from Crippen [defendant’s attorney] to plaintiff and the consideration by the court of that letter as well as the warranty deed. Edwards noted that in Michigan, parol evidence is generally inadmissible "in an action upon covenants to show that an existing incumbrance was to be regarded in fact as no incumbrance”. 83 Mich 246, 249. In the instant case, such is not the purpose of admitting the letter, and its admission is governed by Nogaj v Nogaj, 352 Mich 223, 231; 89 NW2d 513 (1958), wherein the court referred to the general rule that in order to determine the intention of the parties, separate instruments executed at about the same time, in relation to the same matter and between the same parties and made as elements of one transaction may be examined together and construed as one instrument. See 23 Am Jur .-2d, Deeds, § 172, p 218, and 26 CJS, Deeds, § 91, pp 840-841. In the instant case, the May 3, 1967 letter was properly admitted and considered by the trial court as evidence of the entire transaction. As noted earlier, testimony was received which indicated that plaintiff and its agent knew of the existence of the second mortgage and agreed to purchase the property in exchange for defendants’ use of the escrow account to discharge their liability to Newton Realty Company.
Among other cases, plaintiff relies upon Lavey v Graessle, 245 Mich 681, 684; 224 NW 436 (1929), for the assertion that such parol evidence was inadmissible, and that plaintiffs knowledge of the existing Newton mortgage was irrelevant. Lavey relied upon Edwards v Clark, supra, which we have previously distinguished. Also, it should be noted that Lavey has been further distinguished in Stewart v Meyers, 353 F2d 691, 695, fn 2 (CA 7, 1965). The court there said that Lavey was prem ised upon the proposition that the parol evidence at issue was inadmissible "to alter the covenants of warranty in a deed”. Stewart also noted that the encumbrance involved in Lavey, was not one created at the instance and with the knowledge of the complaining party, but was rather already in existence previous to the transaction. Finally, the parol evidence was not employed in Stewart, as it was in Lavey, to vary any of the provisions of the contract. 353 F2d 691, 695, fn 2. Stewart held that a plaintiff-vendee, party to the creation and execution of an encumbrance as a condition to his purchase of the real estate, had waived his right to insist upon a conveyance of the property free of that particular encumbrance. 353 F2d 691, 695.
Our resolution of this case makes it unnecessary to decide the issue of damages, and consequently plaintiffs cross-appeal is dismissed.
Reversed and remanded, with judgment to enter in defendants’ behalf. Costs to defendants. | [
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T. M. Burns, P. J.
On March 2, 1973, defendant Danny Arthur Ranes was convicted by a jury of second-degree murder, MCLA 750.317; MSA 28.549, and first-degree murder in the perpetration or attempted perpetration of rape, MCLA 750.316; MSA 28.548. On March 26, 1973, defendant was sentenced to life imprisonment on count one and life imprisonment in solitary confinement at hard labor on count two, the sentences to run concurrently. Defendant now appeals his convictions as of right.
Since defendant’s allegations of error relate to the trial court’s evidentiary rulings and other procedural matters, a detailed recitation of the facts of this case is unnecessary, and thus only those facts pertinent to our discussion of the issues will be presented.
While defendant was absent from his jail cell taking a shower, the cell was searched by police. A deputy found some torn-up paper in the toilet. These pieces of paper, when put together, read as follows:
"Do you know any married woman who could use $500 for taking the stand and saying she was with me on the night of the Howk killing? One who would have a reason to remember that (whatever the reason was) night that will stand up in court and also remember that I had a bandaid on my left cheek and told her I scratched it while tearing down a garage. It has to be a Saturday night I was with her. She must be strong so the cops can’t break her down no matter what they say or do. Also she will have to go to the newspaper office (Gazette) and look in the past issues for the date and all the back pictures of me so she will know me when she sees me. Let me know as soon as you can as all visits and phone calls in new jail are to be taped. If you know of anyone at least get me her address so I can handle the mail through Contos. The money will come when my feet hit the streets.”
This note was not introduced in the prosecution’s case in chief, but to rebut the testimony of defendant’s alibi witnesses. Defendant now claims this note was improperly admitted into evidence by the trial court. We disagree.
In People v Moore, 51 Mich App 48, 52; 214 NW2d 548 (1974), a letter sent by the defendant to another prison inmate proposing shady trial assistance and reciprocation was intercepted by the prosecutor and offered in evidence. In holding the letter admissible, this Court stated:
"Defendant’s credibility had been brought into the trial by other witnesses. The letter and its contents were material on this issue. We adhere to the rule that the materiality and relevancy of evidence is within the discretion of the trial judge and an appellate court will not interfere unless there is an abuse. People v Sheehy, 31 Mich App 628; 188 NW2d 231 (1971); People v Doane, 33 Mich App 579; 190 NW2d 259 (1971). On the question presented we find no reversible prejudice or abuse of judicial discretion.”
Such is the case here. Here a note was intercepted before it reached any third party. Defendant’s credibility had been brought into the trial by alibi witnesses and the note and its contents were material to the alibi issue. Under these circumstances, we do not feel that the trial court abused its discretion in admitting the note into evidence.
Defendant also argues that the note was inadmissible because it constituted evidence of an en tirely separate crime, unrelated to his case, namely, the procurement of perjury.
Recently, this Court in People v Hooper, 50 Mich App 186, 199; 212 NW2d 786 (1973), lv den 391 Mich 808 (1974), considered this same question, although testimonial evidence rather than a writing was challenged. We consider the Court’s statement to be dispositive of this issue:
"The grounds on which this evidence is admissible has been commonly termed as being 'consciousness of a weak case’. In 2 Wigmore, Evidence (3d ed), §278, p 120, the rule is stated as follows:
" 'It has always been understood — the inference, indeed, is one of the simplest in human experience — that a party’s falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct, is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause’s lack of truth and merit.’
"Michigan has long followed this rule and held that evidence that a defendant has attempted to suppress testimony or induce perjury is admissible. People v Salsbury, 134 Mich 537; 96 NW 936 (1903); People v Adams, 162 Mich 371; 127 NW 354 (1910); People v Randall, 294 Mich 478; 293 NW 725 (1940). This Court recently reaffirmed this long-standing rule in People v Casper, 25 Mich App 1, 7; 180 NW2d 906, 909 (1970), wherein the rule was stated as follows:
" 'Michigan authority appears uniform in holding that actions by the defendant such as flight to avoid lawful arrest, procuring perjured testimony and attempts to destroy evidence, while possibly as consistent with innocence as with guilt, may be considered by the jury as evidence of guilt.’
"Thus, in the instant case there was no error in allowing this testimony since it was proper evidence for the jury to consider.”
Defendant’s next assertion of error is that the trial court erred in admitting into evidence photographs of the deceased, taken at the scene. Since probative value outweighed prejudice, no abuse of discretion occurred. Defendant contends that since the defense was alibi, the photographs were unnecessary and merely calculated to inflame the jury, citing People v Falkner, 389 Mich 682; 209 NW2d 193 (1973). The prosecutor argues that the photographs were material to prove premeditation and deliberation, a condition notably absent in Falkner. Furthermore, the prosecutor points out that while the defense in this case is alibi, the underlying circumstances are different from those present in Falkner. Here much of the evidence against defendant consisted of what he told a witness about the crime. Due to the nature of this witness’s testimony and the fact that he was not present when the crime was committed, the pictures were material and necessary to illustrate both his testimony, especially that concerning his conversations with defendant about the use of knives, ropes and gags in the killing, and the fact that the photographs depicted his method in the death of this victim.
Therefore, we conclude that these photographs were "substantially necessary or instructive to show material facts or conditions” and not merely "calculated to excite passion and prejudice”. People v Falkner, supra, 685; 209 NW2d 194; People v Eddington, 387 Mich 551; 198 NW2d 297 (1972).
Defendant next maintains that the trial court erred in denying his motion for the production of documents and evidence. In denying the motion, the trial court stated:
"The court denies to the defendant the right to copies of all statements, reports, notes or tapes made or given by witnesses except that if any statement, report, note or tape made or given by witnesses is used to refresh the recollection of the witness at the trial, then a copy shall be made available to the defense.”
GCR 1963, 785.1(2) expressly excludes the application of discovery rules in criminal cases. Furthermore, the scope of discovery of a criminal case rests within the sound discretion of the trial court. People v Brocato, 17 Mich App 277, 285; 169 NW2d 483 (1969); People v Johnson, 356 Mich 619; 97 NW2d 739 (1959); People v Maranian, 359 Mich 361; 102 NW2d 568 (1960).
In the instant case, defendant failed to convince the trial court that the requested discovery was necessary prior to trial. Also, the trial court’s order did not completely eliminate discovery. The court did provide for the production of these requested materials if needed to refresh the recollection of a witness during trial and in addition defendant was afforded an opportunity for full cross-examination of witnesses at trial. Under these circumstances, we find that the trial court did not abuse its discretion in limiting defendant’s pretrial discovery.
Defendant next predicates error on the fact that the trial court denied his motion for change of venue prior to trial. We disagree. While either party may be granted a change of venue "upon good cause shown”, MCLA 762.7; MSA 28.850, the denial of such motions rests in the trial court’s discretion. To set aside such a decision, a clear showing of abuse on the part of the trial court must be demonstrated. People v Kochan, 55 Mich App 326; 222 NW2d 317 (1974); People v Shugar, 29 Mich App 139; 185 NW2d 178 (1970). We find no abuse of discretion in the case at bar.
Finally, we have closely examined the record in the case at bar and considered the defendant’s remaining assignments of error. No error warranting or requiring reversal of defendant’s convictions has been disclosed.
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Carland, J.
The appellant filed a claim under the Workmen’s Compensation Act, MCLA 418.101 et seq.; MSA 17.237(101) et seq., for injuries incurred in an automobile accident while traveling upon the highway and while on his way to his place of employment.
The facts under which this claim arises are not in dispute. In December of 1968, the defendant was in the process of constructing an electrical transmission line across southeastern Michigan. A field office at which the employees reported for work and checked out at night was maintained near the point where the actual construction was under way. As the project progressed, the field, office was moved from time to time so that it was always in the vicinity of the work being performed. The employees therefore followed the field office and as a result, it was impractical, if not impossible, for them to maintain residences at or near the location of the office. Therefore the employees were required to drive to and from their homes and the distances to be driven varied from time to time depending upon the location of their home in relation to the location of the field office.
The plaintiff was hired by the defendant as a laborer around the middle of December 1968 at a time when the field office was located near the City of Brighton, some 70 miles distant from his home in Mount Clemens. In order to reach his work, the plaintiff entered into an arrangement with two fellow employees whereby each provided the necessary transportation every third day. The distance to be traveled each day in going to and returning from work was approximately 140 miles.
None of the employees including the plaintiff were paid any mileage or reimbursed in any way by the defendant for the expense of travel. All tools and working equipment were furnished by the defendant and were turned in to the defendant at the end of each day.
After working about two weeks and while a passenger in a car being driven by a fellow employee, the plaintiff was seriously injured in an accident which occurred December 26, 1968 while on the way to work. The accident occurred some 45 miles from the work site at Brighton.
After hearing, the administrative-law judge granted plaintiff’s claim for compensation stating:
“In defendant’s employment the job site fluctuates with regularity. There is no such thing as living near or in the vicinity of your work. Unusual and excessive travel in getting to and from work is therefore a built-in condition of employment. For that reason I find that plaintiffs injury arose out of and in the course of his employment.”
On appeal, a majority of the Workmen’s Compensation Appeal Board reversed the judge upon the following finding:
"The journey was not part of plaintiff’s services, he went to the field site, picked up a truck, and went about his work. At the end of his shift, he left the truck at the field site and returned to his home. He provided his own transportation and was not compensated for same by his employer. How plaintiff or any employee reached his work station or returned home from his work station was of no benefit to the employer.
"The possible change of work stations several times a year is of no consequence in the determination of this case. We see no obligation on the part of the employer to place the work station adjacent to or within the immediate vicinity of each employee’s residence, thereby creating a parity among employees in regard to street hazards going to and coming from work.”
Application for leave to appeal was denied by this Court on December 21, 1973. On April 18, 1974, the Supreme Court on its own motion, pursuant to GCR 1963, 853.2(4), remanded the cause to us "for consideration as on leave granted”.
We are therefore under the undisputed facts faced with the issue of whether this employee who was seriously injured while on his way to work suffered an injury that "arose out of’ and "in the course of’ his employment.
It is the general well-settled rule in Michigan that injuries sustained while going to and from work are not compensable. Thomas v Certified Refrigeration Inc, 392 Mich 623; 221 NW2d 378 (1974); Dent v Ford Motor Co, 275 Mich 39; 265 NW 518 (1936). This general rule howéver has been repeatedly riddled with exceptions to the extent that it seems to have become an exception to the exceptions. From this consequent erosion of the general rule, it would appear that there is arising through evolution a new rule which compensates where "there is a sufficient nexus between the employment and the injury” so that it may be said that the injury "was a circumstance of the employment”. Thomas, supra, pp 632-635; Nemeth v Michigan Building Components, 390 Mich 734; 213 NW2d 144 (1973); Howard v Detroit, 377 Mich 102; 139 NW2d 677 (1966).
Considerations relevant to the ultimate determination of whether an injury to an employee while on the way to work is sufficiently employment-related to be compensable are:
1. Whether employer paid for or furnished employee transportation, Chrysler v Blue Arrow Transport Lines, 295 Mich 606; 295 NW 331 (1940); Lemanski v Frimberger Co, 31 Mich App 285; 187 NW2d 498 (1971).
2. Whether the injury occurred during or between working hours, Wilhelm v Angell, Wilhelm & Shreve, 252 Mich 648; 234 NW 433 (1931); Howard v Detroit, supra.
3. Whether the employer derived a special benefit from the employee’s activities at the time of the injury* Nemeth, supra.
4. Whether the employment subjected the employee to excessive exposure to traffic risks, Chrysler, supra, and Dent, supra.
In the instant case the plaintiff may not recover under either of the first two considerations or exceptions. It is undisputed that plaintiff’s injury did not occur during the scheduled working hours nor did defendant pay or reimburse him for any transportation expense to and from the place of employment.
It is likewise difficult to discern whereby the employer derived any special benefit from the fact that plaintiff was in the process of driving to work. If any benefits were so derived, it was not a special benefit to the employer but a benefit common to all employers. The time has long since passed when most employees live in such close proximity to the place of employment that transportation in one form or another is not a necessity. Today, with few exceptions, employees live not only in different neighborhoods but also in different communities than that in which the place of employment is located. The concentration of urban population throughout the industrialized area of our state and nation is a fact of which we may take judicial notice. It is an economic fact and social fact of modern day living. Almost without exception employees drive or are. driven to work over distances great or small. At the time that work begins by an employee then do benefits arise in favor of the employer. It does not follow that because employees are an integral part of industry that benefits are conferred while the employee is going to or from work. We are constrained to hold that the fact of travel to and from work by the plaintiff in this case resulted in no benefit to the employer upon which compensation may be based.
Was the plaintiff exposed to excessive risks because the nature and the location of his work required a daily round trip of 140 miles? All travel entails certain risks as do all other activities of life. Mere miles traveled, standing alone, should never be the controlling fact in establishing the existence of excessive risk. Many employees drive in excess of the miles driven by the plaintiff. A journey of 140 miles over less congested highways may be far less of a hazard than a much shorter journey from a congested area to some suburban haven. We are unable to find on the record that plaintiff was exposed to excessive risks through the travel here involved.
It is undisputed that the plaintiff was injured while on the way to his place of employment but we are unable to find under the decisions of our Supreme Court "a sufficient nexus between the employment and the injury”. Since under the facts of this case we are unable to bring the plaintiff’s claim within any enunciated exception to the general rule "an injury sustained while going to and from work is not compensable” (Thomas and Dent, supra), we affirm. If the rule is to be changed, it must come as the result either of legislative action or through the decisions of the Supreme Court.
Affirmed.
391 Mich 813 (1974). | [
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Quinn, P. J.
Defendant was originally charged with uttering and publishing contrary to MCLA 750.249; MSA 28.446. By agreement between defendant and the prosecuting attorney defendant pleaded guilty to the lesser-included offense of attempted uttering and publishing. He was sentenced and he appeals, asserting three alleged reversible errors, namely:
1. Denial of his request to withdraw his plea prior to its acceptance.
2. His plea was to an offense not proscribed by law.
3. The failure of the trial court to ascertain defendant’s affirmative acknowledgment of the plea bargain.
If it were not for alleged error 2, supra, we would affirm this conviction by memorandum opinion because the record is contrary to allegations 1 and 3.
We write to the proposition that a bargained plea to an alleged non-existent or paradoxical offense must be vacated because there is no such offense for two reasons.
First, the contention should be, and we hope is, consigned to oblivion. The idea that one who makes a bargain for his own benefit can be released from that bargain because what he bargained for is a non-existent crime is repugnant to any sense of justice, fairness and common sense. If the language, "shall affirmatively appear that the error complained of has resulted in a miscarriage of justice”, of MCLA 769.26; MSA 28.1096 has any meaning left, it surely applies to the contention now before us, and we so hold.
We recognize that People v Collins, 380 Mich 131; 156 NW2d 566 (1968), did not involve a bargained plea and is otherwise factually dissimilar to this case of Hooper. However, at page 135 of that opinion is found language which best expresses our reason for holding that defendant’s contention is untenable:
"If there is any miscarriage of justice, under these circumstances it can only be one in which the people of the State of Michigan have exacted an insufficient penalty. Putting it another way, if there has been, under these circumstances, a miscarriage of justice, it is a miscarriage which ran to the benefit of the defendants and to the detriment of the people. Of such a miscarriage of justice, only the people can complain.”
Secondly, the transcript of the plea taking discloses that defendant obtained a check from a friend which defendant knew was no good, that defendant took that check to Sears Roebuck, presented it with identification in an effort to cash it, and that the police grabbed him before the check was cashed. That constitutes attempted uttering and publishing.
Affirmed. | [
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Peterson, J.
Defendant was convicted by jury of manslaughter, MCLA 750.321; MSA 28.553, sentenced to a term of years in prison, and appeals. He asserts that the prosecutor in closing argument made prejudicial remarks to the jury and that there was error in the court’s instructions on self-defense.
On the afternoon of May 25, 1973, Patricia Harper, age 13, and Tavna Coucil, age 14, were walking home when defendant attempted a conversation with them. The testimony is sketchy, but Patricia testified that defendant grabbed her arm, asked her name, and when she did not reply, called her a square like Tavna and said that he should throw her down and choke her. Defendant’s testimony put the incident in the form of a jest. It is clear, in any event, that this ended the encounter, that there was no sexual molestation, solicitation or moral improprieties and that the defendant and the girls went their own ways.
Unfortunately, on returning home, Tavna told her grandmother that a man had been "messing” with them. The statement was overheard by her uncle, Ozzie Wallace, who, if not dead drunk was at least drunk, and soon to be dead. Wallace forthwith sought out defendant, demanded to know why defendant had been "messing” with his niece, and, as defendant started to reply, struck defendant and knocked him down. Defendant got up with a gun in his hand. Wallace kept fighting, defendant fired one shot into the ground and three into Wallace. This is the people’s case; defendant’s testimony makes a stronger case for self-defense justification. The point, however, is that on the people’s case, defendant was not made out to have been a salacious accoster of Patricia and Tavna. Neither was he shown to be the provocateur of Wallace’s assault, let alone the aggressor.
In his rebuttal summation, the prosecutor attacked defendant as a man who "went around trying to accost a thirteen and fourteen year old girl”, who should have been caring for his baby but instead "had all this time to try to pick up a couple girls”, who was afraid "of getting a punch in the jaw that he had coming for what he did”, and who saw "nothing immoral about it”. At another point the prosecutor spoke of "the girl he did molest”. Other comments by the prosecutor bordered upon or crossed the line of permissible advocacy, but were not of such nature as would, in themselves, warrant reversal since defense counsel made no objection at any point.
"The absence of an objection (to prosecutor’s remarks in his closing argument) in the trial court precludes appellate review, unless this Court’s failure to consider the issue would result in a miscarriage of justice. The basic standard employed in determining whether the remarks resulted in a miscarriage of justice is whether the allegedly prejudicial effect of the remarks could have been rectified by curative instruction. If so, the failure to object is fatal to the claim on appeal.” People v Pacely, 51 Mich App 67, 71; 214 NW2d 561, 562-563 (1974).
Had an objection been made at the first comment suggesting an immoral solicitation, instruction would not only have offset the prejudice but would undoubtedly have forestalled other improper comments. After the second such improper comment, the efficacy of a curative instruction might have been more questionable. By the time the argument ran its uninterrupted course, however, it was too late. The prejudice was incurable and we must reverse notwithstanding the lack of any objection.
A comment on the self-defense instruction is in order. The instruction given, to which there was no objection, contained no misstatements of the law, and is essentially that sustained in People v Plozai; 50 Mich App 131; 212 NW2d 721 (1973). Absent objection, it would not warrant comment. It was, however, a comprehensive instruction on all of the aspects of the law of self-defense. We suggest that on retrial the jury would be better instructed only on those aspects of self-defense pertinent to the case; i.e., on the testimony given there was no relevance to instructions on conduct responsive to mere threats or premised on the possibility that defendant was the aggressor.
Reversed and remanded for new trial.
The report of the autopsy of Ozzie Wallace indicated that he was (1) dead, (2) thrice gunshot, (3) a narcotics addict and (4) alcohol-intoxicated at the time of death.
We note, incidentally, that this was really the prosecutor’s argument in chief and not rebuttal. We disapprove of his tactic of making a sham initial closing argument of no real content and then delivering the substance of his argument when the defense has no opportunity to respond. See State v Peterson, (1968 Mo) 423 SW2d 825; 26 ALR3d 1400. | [
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D. E. Holbrook, J.
Defendant-appellant, John R. Johnson, was found guilty by a jury in Washtenaw County Circuit Court of the felony of breaking and entering an occupied dwelling, contrary to MCLA 750.110; MSA 28.305. He was sentenced to a term of 10 to 15 years in prison.
As the issues which we find appropriate for discussion relate to the conduct of defendant’s trial, a short statement of facts is sufficient.
On August 24, 1968, a person (or persons) entered the home of Mr. and Mrs. Kaercher in the City of Ann Arbor, some time after 10 p.m. Entry was made by taking a screen off the bedroom window. Two Ann Arbor policemen were advised by a then 17-year-old individual that he "saw two male colored men standing up the road in front of the neighbors — one of my neighbor’s homes and it looked quite suspicious * * * Apparently acting on this information, the policemen stopped an automobile in which Henry Kemp, Jr., and another black man were riding. After observing a crowbar and a woman’s purse on the floor of the front seat, the officers placed the two men under arrest. The second individual, allegedly defendant, ran from the police. Defendant was later apprehended and held on a separate charge. At trial, Henry Kemp, Jr., who had pled guilty and was sentenced to 15 months imprisonment, was called and testified. In sum, he testified that while defendant Johnson was with him he played no part in the breaking and entering. Defendant Johnson took the stand in his behalf and stated that he was not with Kemp on the evening in question, but rather was elsewhere for the entire evening.
Defendant has set out four issues with contingent sub-issues. We find it necessary to discuss only two.
I
The defendant gave no notice of alibi, requested no instruction thereupon, nor did he object when the trial court gave the following instruction:
"There has been some testimony in this case from which it could be found that the defendant was another place at the time of the commission of the crime. If proven beyond a reasonable doubt this would be a proper and legitimate and perfect defense to the crime charged. An alibi, as it is termed, is a defense that is easily proven and hard to disprove. Therefore, you should be careful and cautious in examining the evidence bearing upon the question of alibi.” (Emphasis supplied.)
In People v Murray, 72 Mich 10, 16; 40 NW 29, 32 (1888), the Court said:
"Without any requests from counsel it is the duty of the circuit judge to see to it that the case goes to the jury in a clear and intelligent manner, so that they may have a clear and correct understanding of what it is they are to decide, and he should state to them fully the law applicable to the facts. Especially is this his duty in a criminal case.”
With this in mind and knowledgeable of the fact that the instruction was erroneous, we must determine whether it is reversible error.
It is fundamental in our system of justice that the guilt of an accused must be proved beyond a reasonable doubt to sustain a conviction. People v Hubbard, 387 Mich 294, 299; 196 NW2d 768, 770 (1972).
In People v Marvill, 236 Mich 595, 597; 211 NW 23, 24 (1926), on the subject of alibi, Justice Wiest wrote:
"Testimony in support of an alibi may accomplish no more than the raising of a reasonable doubt as to the sufficiency of the proofs connecting an accused with the crime alleged or render such proofs unsatisfactory. If the testimony relative to an alibi serves such purpose it creates a reasonable doubt as to the guilt of an accused. In other words, an alibi may fail as a substantive defense and yet serve to raise a reasonable doubt as to the guilt of an accused.”
An instruction on alibi less erroneous than the one here in question was condemned in People v Virgil Brown, 15 Mich App 600; 167 NW2d 107 (1969). While certainly to be condemned, our responsibility is now to determine whether this incorrect instruction mandates reversal.
The prosecution answers that while the instruction was incorrect, it is not reversible error in that no notice of alibi was given, there was no request for an alibi instruction, and no objection was made to the instruction given. At the outset, we note that we cannot say with certainty that MCLA 768.20; MSA 28.1043 mandates that a notice of alibi must be given when a defendant testifies only as to the alibi himself and presents no witnesses in support thereof. Moreover, when the defendant fails to file the notice prescribed in the statute, whether the evidence is excluded is discretionary with the trial judge. MCLA 768.21; MSA 28.1044. See, generally, Anno., Validity and Construction of Statute Requiring Defendant in Criminal Case to Disclose Matter as to Alibi Defense, 45 ALR3d 958, 974. Further, the prosecution waives its objection to defendant’s failure to provide alibi notice when it accepts the introduction of such evidence without objection. People v Miller, 250 Mich 72, 74-75; 229 NW 475, 476 (1930); People v Luckett, 52 Mich App 33, 34; 216 NW2d 460, 460 (1974). Here, the trial judge allowed the defendant to testify that he was elsewhere and no objection by the prosecution appears in the record.
In People v McShan, 53 Mich App 407, 415; 219 NW2d 792, 796 (1974), defense counsel did not object to the instructions and in fact expressed satisfaction with them. Judge McGregor, of this Court, said in McShan: "Thus, the giving of the allegedly erroneous instructions does not warrant reversal absent a showing of manifest injustice. People v Spaulding, 42 Mich App 492; 202 NW2d 450 (1972).” A review of the instruction in that case reveals that it was not as clearly incorrect as the one here in question. Relying upon People v Erb, 48 Mich App 622; 211 NW2d 51 (1973), the McShan panel reversed on the basis of the alibi instruction, saying at 53 Mich App 417-418; 219 NW2d 798: "We are constrained to hold that the failure of the trial court to instruct the jury with respect to the burden of proof concerning the defense of alibi constitutes manifest injustice and thus reversible error.” A similar instruction to that in McShan was found to be reversible error in People v William Johnson, 54 Mich App 678, 683-684; 221 NW2d 452, 455 (1974), wherein Judge T. M. Burns, concurred in by this writer, wrote:
"In People v Erb, 48 Mich App 622, 630; 211 NW2d 51, 55 (1973), this Court enunciated the standard to be followed by trial courts when instructing on the question of alibi when we said:
" 'An instruction to the jury concerning the defense of alibi must clearly explain that this defense offers two avenues of relief for the defendant. First, if the alibi is established, a perfect defense has been shown and the defendant should accordingly be acquitted. Alternatively and, perhaps, more importantly, the instruction must clearly indicate that if any reasonable doubt exists as to the presence of the defendant at the scene of the crime then, also, the defendant should be acquitted. People v Virgil Brown, 15 Mich App 600, 605-606; 167 NW2d 107, 110 (1969); People v Loudenslager, 327 Mich 718, 726; 42 NW2d 834, 837 (1950).’ (Emphasis omitted.) See also People v Resh, 107 Mich 251; 65 NW 99 (1895).
"It is quite clear that the trial court’s sua sponte instruction in this case did not comply with the standard set forth above. While the trial court did instruct the jury that if defendant’s alibi defense were established it would constitute an absolute defense to the crime charged, it did not instruct in the alternative that if any reasonable doubt existed as to defendant’s presence at the scene of the crime, then defendant was entitled to a verdict of acquittal. This omission constitutes reversible error.”
II
The defendant asserts that it was error for the prosecutor to impeach the testimony of defendant’s alleged accomplice, indorsed as a res gestae witness, by the use of a prior inconsistent statement where the witness testified he did not remember making the statement.
The prosecution called Henry Kemp, Jr., and the following pertinent questioning occurred:
"Q. (by Mr. Huss, assistant prosecutor): I am going to show you a signature which has been typed underneath, Henry Kemp, Jr., and ask you if you can identify that signature?
"A. That’s my writing.
"Q. Did you sign that?
"A. Yes.
"Q. Before you signed this, did you read that?
"A. No, I can’t read that good.
”Q. Did you tell anybody this or did you, do you know what that paper said?
"A. No.
”Q. You had no idea what that paper said?
"A. No, I can’t read, didn’t — go to any school and they will tell you that I can’t read. I made that statement to one of the officers too, over in the jail, too, to Ted, not Ted, but what’s his name, one of the gentlemen over there, I can’t tell you, one of the turnkeys over there at the jail, he asked could I read and I told him no, and he wrote it down, I think he wrote it on some paper, or typed it, one.
"Q. You don’t recall — you didn’t read this piece of paper you signed?
"A. I can’t read.”
"It is a settled rule of law that the prosecution is not required to call accomplices, even though indorsed upon the information”. People v Potts, 55 Mich App 622, 626; 223 NW2d 96, 99 (1974), and cases cited therein. Where no obligation exists to call a witness, as an accomplice, there is no statutory right to impeach. People v Szymanski, 52 Mich App 605, 609; 218 NW2d 95, 97 (1974). In People v Fidel, 37 Mich App 338, 342-343; 194 NW2d 732, 734 (1971), Justice O’Hara wrote:
"We hold here that the right of the prosecution to impeach its own witness is derivative of, and coextensive with, the obligation to call that witness. Absent the obligation, a witness thus called becomes the people’s witness and subject to the settled rules concerning the examination of any witness voluntarily called by either party.”
See also People v Moore, 29 Mich App 597, 601; 185 NW2d 834, 837 (1971) (noting that the lack of statutory right of impeachment of an alleged accomplice may work to the prosecution’s disadvantage); People v Lewis, 47 Mich App 450, 453; 209 NW2d 450, 452 (1970), and People v Miller, 49 Mich App 53, 57; 211 NW2d 242, 244-245 (1973). This rule may be said to derive from People v Durkee, 369 Mich 618; 120 NW2d 729 (1963). In Hill v Harbor Steel & Supply Corp, 374 Mich 194, 215; 132 NW2d 54, 63 (1965), the Supreme Court said of Durkee:
"In Durkee, supra, the witness had testified she did not remember any of the events preceding the accident, and this Court’s disapproval of the use of her subsequent statement to a police officer regarding such events was based upon the principle that where a witness testiñes he does not remember certain events he cannot be impeached by introduction of subsequent statements regarding the events he claims not to remember. "(Emphasis supplied.)
We thus perceive that the use of the statement and reference thereto by the prosecution was erroneous. On retrial the statement of accomplice Kemp, should he be called, would not be admissible.
Supplementary, defendant has asserted the "Milton" issue, 392 Mich 795 (1974). The Supreme Court in an opinion of Justice Levin has recently unanimously decided this issue adversely to defendant. People v Milton, 393 Mich 234; 224 NW2d 266 (1974).
Reversed and remanded.
We note that the trial judge who passed upon defendant’s motions to suppress the evidence and quash the information, improperly assumed that the two police officers knew the crime here in question had occurred when they stopped the automobile.
This instruction was separated from a proper instruction on burden of proof. The people concede the instruction was incorrect.
See People v Barry, 53 Mich App 670, 676; 220 NW2d 39, 43 (1974).
Cf. Smith v Smith, 454 F2d 572, 579 (CA 5, 1971). As to the purpose of the so-called "Smith Rule”, see Bassett v Smith, 464 F2d 347 (CA 5 1972).
Cf. People v McCoy, 392 Mich 231; 220 NW2d 456 (1974). | [
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D. E. Holbrook, P. J.
Raymond Wright, defendant, was charged with the crime of rape, and jury-convicted on February 9, 1973. On February 21, 1973, he was sentenced to life imprisonment. He now appeals as of right.
The offense occurred on June 7, 1972, in the morning sometime after complainant’s husband departed for work. Defendant came to complainant’s home, represented he was having car trouble, and requested to use the telephone to call his wife. Complainant allowed defendant to use the phone. At the time the complainant was eating breakfast with her two daughters, six and five years of age. After using the phone, defendant came back into the kitchen. He appeared nervous and quite concerned about losing his job because he was going to be late. Complainant then fixed him a cup of coffee. At defendant’s request complainant said he could use the bathroom. When he came out of the bathroom, he went and picked up complainant’s oldest daughter, pulled out a knife with a four-inch blade, and threatened the child. He handed complainant a note which read: "Put your hands behind you or I will kill your girls”. Defendant tied complainant’s hands behind her with an electric shaver cord. The defendant then took complainant and her daughters upstairs. After checking to see if there was anyone else upstairs, he threw complainant on the bed and had the girls stand over in the corner of the room. The defendant had the knife pointed at complainant and near her. Complainant begged him repeatedly not to do anything to her and said: "You have a wife”. He replied: "Damn it, I know I do”. Defendant told the little girls to remove their pants. Complainant then begged him to leave the little girls alone. Defendant then proceeded to rape the complainant and shortly thereafter left the house.
The defense presented by defendant at trial was insanity. After defendant’s arrest, he gave two statements to the police. In the first statement he denied the assault and rape. This statement was objected to by defense counsel, but was admitted upon a finding by the court that it was made voluntarily after the Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966), warnings were fully given and defendant had signed the statement. In the second statement defendant admitted the offense and gave a detailed account of what had happened. This statement was not objected to, and was admitted as having been voluntarily given by the defendant.
The defendant raises several issues to be considered on appeal.
I
Defendant claims that the trial judge committed reversible error when he charged the jury in part as follows: "One who indulges in that convenient form of insanity referred to as temporary or emotional insanity, which lasts just long enough to enable him to commit an act of violence, is not relieved from criminal responsibility”.
The defendant argues that this instruction undercut his insanity defense because it conveyed to the jury the implication that the defendant fabricated this theory in order to save himself. The above quoted instruction was approved by the Supreme Court in People v Finley, 38 Mich 482; (1878), in the context of distinguishing pure passion from legal insanity. See also People v Johnson, 53 Mich App 329, 334; 220 NW2d 65, 68 (1974). We consider instructions as a whole to determine if an instruction is proper. People v Carr, 2 Mich App 222; 139 NW2d 329 (1966), People v Weems, 19 Mich App 553; 172 NW2d 865 (1969), and People v Dye, 356 Mich 271; 96 NW2d 788 (1959). After a careful review of the instructions given the jury, we are convinced the trial court properly instructed the jury on the definition of insanity, including the "irresistible impulse” element.
II
Did the trial judge and the prosecuting attorney erroneously intermingle the terms of (1) competent to stand trial with (2) the defense of insanity?
The subject of this issue was the report of a forensic examination conducted on the defendant and introduced into evidence at the trial by defense counsel with a stipulation providing that a cautionary instruction would be given to the jury. The cautionary instruction given by the court was as follows:
"This is a letter addressed to myself as circuit judge and it deals with Raymond Wright. You heard that letter read and this psychiatric consultant at Ann Arbor is simply reporting to the court that at the request of the court this defendant was examined and that he was found to be fit for trial, that he understood the nature of these proceedings against him, that he was able to cooperate with his attorney and in connection with his defense and so forth. In other words, that he was competent to stand trial.
"Now, this determination was made on July 12th, 1972. The purpose of this was not to decide whether or not he was competent on June 7th, 1972; this was for the only purpose of deciding whether he was competent to stand trial. And you should consider it for that purpose only.”
The prosecutor in closing argument stated that defendant was found legally competent to stand trial. In defendant’s closing argument, counsel noted the difference between competency to stand trial and legal insanity. As we have previously ruled, the trial judge gave a thorough instruction on the test of insanity and the cautionary instruction did not, in our opinion, confuse the issue for the jury.
The prosecutor did not commit reversible error in his closing argument as he had the right to comment on the evidence and the reasonable inference to be drawn therefrom. People v Margaret Jones, 48 Mich App 334, 343; 210 NW2d 396, 400 (1973). It was thus proper for the prosecutor, in his closing argument, to make reference to the forensic examination result.
Ill
Did the trial court properly instruct the jury on the disposition of the defendant under a verdict of not guilty by reason of insanity?
Defendant claims that the instruction given was not proper under People v Cole, 382 Mich 695; 172 NW2d 354 (1969). The Cole instruction given in the instant case is as follows:
"I will tell you, however, that if you should reach a verdict in this case of not guilty by reason of insanity, if you find that verdict, then I will inform you that this does not mean that the accused will go free. It means that I have no further control over him as judge of this court.
"It means that I will commit him to the mental health authorities of the State of Michigan. And that statute [MCLA 767.27b; MSA 28.966(12)] reads as follows: Any person who is tried for a crime and is acquitted by the court or jury by reason of insanity shall be committed immediately by order of the court to the Department of Mental Health for treatment in an appropriate state hospital until discharged in accordance with law.
"This means that this man, if you reach such a verdict, will be committed to the Department of Mental Health and he will remain there in an institution to be selected by them and that he will remain there until such time as they decide to release him. This court will have no further control over him. ” (Emphasis supplied.)
The purpose of the Cole instruction is to insure that the jury is informed of the consequences of a verdict of not guilty by reason of insanity, and for the further reason to inform them that such a verdict would not immediately set the defendant free.
The emphasized portions of the subject instruction, defendant asserts, accomplished what the instruction was intended to prevent, i.e., jury fear of a quick release for the defendant. We interpret the challenged portions of the instruction were to the effect that the judge had no sentencing discretion when the defendant is found not guilty by reason of insanity. This fact being true, and the jury being fully informed of the necessary facts under Cole, no error was committed. People v Widgren, 53 Mich App 375; 220 NW2d 130 (1974).
IV
Was a proper foundation laid for the admission of lay testimony on the question of defendant’s sanity?
Defendant concedes that lay testimony can be admitted on the question of insanity. He claims, however, that the lay witnesses in the instant case were not sufficiently acquainted with the defendant to provide proper foundations for such opinions.
The prosecutor submitted the testimony of five men who worked with the defendant, concerning defendant’s sanity. This evidence was admitted by the court over the objection of the defendant.
James McClellan testified that he was the president of Mac Distributing Company and that the defendant was employed by the company. He testified that over an eight-week period he had an opportunity to spend two to three hours a day with the defendant.
Jack Moeller, also an employee of the Mac Distributing Company, testified that he was with the defendant on a daily basis and talked with him on those occasions.
Wayne Cummings, an employee of Mac Distributing Company, testified that he worked with the defendant and would spend three to four hours a day with him. During this time they would load trucks together and would talk together. Further, they would often eat lunch together.
Jack Kessler testified that he was an employee for Mac Distributing Company and that he would go on deliveries with the defendant who was a truck driver.
Bill Buddy testified that he was a driver and serviceman with the Mac Distributing Company and worked with the defendant on a daily basis.
In general, the question of competency of witnesses is for the trial court, and the credibility of the witnesses is for the jury. People v Charles Wilson, 27 Mich App 171; 183 NW2d 368 (1970), and People v Collins, 43 Mich App 259; 204 NW2d 290 (1972). The trial court should use discretion in allowing a lay witness to testify on the issue of defendant’s sanity. People v Cole, supra. In Cole our Supreme Court laid down some guidelines to be followed by the trial court when exercising its discretion to admit lay-witness testimony on the issue of defendant’s insanity. These are as follows at 382 Mich 710-711; 172 NW2d at 361:
First, before a lay witness is permitted to state an opinion regarding the sanity or insanity of the defendant the witness must have had ample opportunity to observe "speech, manner, habits, or conduct”, of the defendant.
"To render himself competent under this, rule, the witness must establish he was sufficiently acquainted with the defendant or testator so as to testify to mental condition on a comparative basis and not merely to some manifested idiosyncrasy or eccentric behavior.” (Emphasis in original.)
Second, the trial judge must also consider the character and nature of the alleged mental condition.
Third, it must appear that the witness took advantage of the opportunity to observe closely the person whose mental condition is at issue.
Fourth, there must be a proximity in point of time between the act involved and the facts and circumstances offered as the basis to render and support the non-expert’s opinion.
The prosecution submits upon a review of the testimony of the lay witnesses in question in the instant case that the above standards enunciated by our Supreme Court in Cole, supra, have been fully complied with.
In the case of People v Alsteens, 49 Mich App 467, 473-474; 212 NW2d 243, 246 (1973), it is stated:
"We note at the outset that defendant’s reliance upon People v Cole, supra, ignores the fact that no controlling majority opinion was rendered in that case. Justices Kavanagh, Dethmers, and Brennan concurred upon the necessity to lay a foundation for lay witnesses’ opinion evidence of sanity or insanity, requiring that the witness have the opportunity to observe the speech, manner, habits, or conduct of the person in addition to establishing sufficient acquaintance with the defendant so as to be able to testify on a comparative basis. Justice Adams concurred in the result, but relied upon the rule stated in People v Zabijak, 285 Mich 164, 185; 280 NW 149, 157 (1938), that '[a] nonexpert witness who has had ample means to observe and form conclusions as to the mental condition of a person and who testifies to pertinent facts on which his conclusions are based may state his conclusions as to the insanity of a person’. Justice Kelly concurred specially, stating that insufficient evidence was introduced to prove defendant’s sanity. Reversal in Cole, then, was based upon either the lack of opportunity to compare the witness’s conduct on different occasions, the lack of ample means to observe, form conclusions or testify to the facts upon which the conclusions were based, or the insufficiency of evidence to outweigh that which casts a reasonable doubt as to defendant’s sanity. Failing to arrive at a majority opinion on this issue, Cole is of limited precedential value.”
The Alsteens case held that lay testimony on the insanity issue was admissible, provided the witnesses had a sufficient opportunity to observe the defendant. The question was treated as one of weight to be accorded the evidence and not one of admissibility. See also People v McBride, 55 Mich App 234; 222 NW2d 195 (1974).
The lay testimony in the present case was properly admitted under the ruling in Cole, Alsteens and McBride. Unlike the police officers in Alsteens and McBride, the witnesses in the instant case were in continuous daily contact with defendant over a period of eight weeks up to the time of the offense. We deem that the witnesses had the proper qualifications to state an opinion on the defendant’s sanity. See State v Griffin, 99 Ariz 43; 406 P2d 397 (1965), where it was held that the trial court properly permitted opinions as to a homicide defendant’s sanity by three persons with whom defendant had worked and who had known defendant approximately six weeks. We rule the lay-opinion evidence in the instant case was properly admitted.
V
Did the prosecutor improperly express his personal belief as to the credibility of the defendant and his expert witness?
Defendant asserts that he was denied a fair trial because the prosecutor expressed his personal belief that the defendant’s story was not credible, and that the prosecutor improperly attacked the credibility of the defendant’s expert witness. The claimed error has to do with two statements made by the prosecutor during closing argument. The first statement is as follows:
"We submit to you, ladies and gentlemen of the jury, there is no insanity on the part of Mr. Wright. Mr. Wright’s actions both at the time of the crime and the time after the crime, the time during the interviews with the doctors, is dishonest and a liar. Dishonest and lying to Dr. Carrón. Dishonest and lying to Mr. Whipple.”
At first blush this statement appears to be improper; however, an examination of the record shows that it was not. The defendant’s own statement introduced into evidence (Exhibit No. 43) and not challenged on appeal, reveals that defendant lied to Officer Whipple when first arrested. Secondly, the testimony of Dr. Carrón established that the defendant also held back in his interview with him. Therefore, the prosecutor’s statement was proper and related to the evidence in the case. Comments on the evidence are proper. People v Margaret Jones, supra.
The second challenged statement concerned the testimony of defendant’s expert witness and reads as follows:
"I don’t know Dr. Knesper. I was impressed by his presentation, but you must look to his credibility. You look to a resident. His first time in court. His first presentation of a criminal defense. And you weigh that against a man of twenty-one years, against 300 testifyings in court, and a total practice of all that time.”
In this case, defendant admitted the crime but claimed that he was insane at the time. This required the court and the jury to determine whether he.was guilty or not guilty by reason of insanity. There was an expert witness that testified on behalf of defendant, and there was an expert witness that testified on behalf of the people. The jury could not believe the opinions of both experts for they were contrary to each other. In the case of People v Wirth, 108 Mich 307, 308-309; 66 NW 41, 42 (1896), it is stated in part as follows:
"We are not aware of any decision which holds that an attorney may not state to the jury his belief that a witness is or is not entitled to credence, in a case where the testimony is conflicting, and the result depends upon which witnesses the jury find are truthful [correct]. A broad latitude must be allowed in such cases.”
We rule that the comment by the prosecuting attorney was a fair comment on the evidence of the two expert witnesses.
VI
Did the trial court err in allowing into evidence an exculpatory statement made by defendant while in police custody?
Shortly after his arrest, the defendant was given Miranda warnings preceding questions by Officer Whipple. The waiver form reads in pertinent part as follows:
"This subject was delivered to me by Bobalek. He was immediately given this form to read and stated that he could read. I asked subject if he understood his rights and he stated that he did. Subject stated that he wanted to talk to his wife. Advised that he could later. Subject then stated that he would answer some questions but wanted to talk to his wife about a lawyer. I advised him that if he wanted to talk to a lawyer I could not talk to him. Subject then stated as long as he could answer only, over, some questions, he would sign his waiver, which he did. Subject also stated he had seen on his card downstairs where he was being charged with rape. I advised him that the department had received a complaint and that I was interviewing him on an assault charge. The prosecutor would have to make the determination on the charge. M.W., 9:22 p.m., 6-7-72.”
This statement was made after Miranda warnings were given and the waiver by the defendant was signed. The waiver was admitted without objection. The statement of the defendant followed. This statement was admitted over objection. In Miranda, supra, it is stated: "If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.” 384 US at 444-445; 86 S Ct at 1612; 16 L Ed 2d at 707. Specifically Officer Whipple mentioned to the defendant: "I advised him that if he wanted to talk to a lawyer I could not talk to him”.
The defendant was fully advised that if he wanted to talk to an attorney before giving a statement he could, but he chose to answer some questions. The Miranda warning on Exhibit 32 stated: "If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer”. The defendant said he understood and signed the waiver which read:
"I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me."
It would appear that the ruling of the trial court was not clearly erroneous because the defendant did not request to see a lawyer before answering the subject questions.
In this connection, it is well to point out that a second, more damaging statement was taken from the defendant and admitted into evidence (Exhibit 43). The admission of the second statement is not challenged on appeal.
The defense of the defendant was insanity, and inasmuch as the second statement was much more in detail than the first statement and defendant admitted the crime, it is difficult for us to determine that this first statement was prejudicial to the defendant. No reversible error is present as to this issue.
VII
Under the facts in this case was the reference to defendant’s refusal to submit to a polygraph examination reversible error?
The people concede that polygraph results are inadmissible, but claim that this inadvertent reference should not be the basis for reversible error.
The entire statement of the defendant was read into the record and the pertinent portion is as follows:
" 'Q- (by Officer Whipple): Your version of what happened here in Midland County differs to what the complainant has told us. Would you be willing to submit to a polygraph examination?
" 'A. No.’ ”
A brief inadvertent reference to a polygraph procedure has been ruled to not constitute reversible error. People v Tyrer, 19 Mich App 48; 172 NW2d 53 (1969), dismissed 385 Mich 484; 189 NW2d 226 (1971). We conclude that the unobjected to reference in this case, though improper, does not mandate a new trial. The rape herein was proved by the overwhelming weight of the evidence and beyond a reasonable doubt. The mentioned polygraph examination did not prejudice defendant in his insanity defense. No miscarriage of justice has resulted from this error.
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Bronson, P. J.
Plaintiff-appellant Louis J. Dettore owns a 70-acre parcel of land in Brighton Township, Livingston County. This parcel has long been used for mining purposes, a nonconforming use in an area zoned R-l residential. Dettore sought to create a sanitary landfill, solid waste disposal operation on 20 acres of the parcel. The state, by virtue of a license obtained from the Department of Natural Resources, has given him permission to do so. However, the local governing body — here the Brighton Township Board of Appeals — refused to grant Dettore the zoning variance he requested to expand the scope of his nonconforming use. In order to resolve this conflict, Dettore petitioned the Livingston Circuit Court for a writ of mandamus to compel the Brighton Township Board of Appeals "to issue the permit requested by the plaintiffs”. That petition was denied by the circuit judge on April 1,1974 on the ground that:
"the appeal board of the Township of Brighton is nevertheless still vested with the discretionary power to prohibit the plaintiffs from exercising the permission granted by the State Health Commissioner * * * .”
Dettore appeals the denial of his application for a writ of mandamus by leave granted on June 26, 1974.
We necessarily face a very narrow question: Is Dettore entitled to the writ of mandamus as prayed for under the circumstances here presented?
Mandamus is the traditional remedy used to compel the performance of mandatory legal duties by public officials. See 4 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 181. The following quotation from Kortering v Muskegon, 41 Mich App 153, 154; 199 NW2d 660, 661 (1972), appropriately summarizes both the requirements for obtaining the writ and the standard to be applied by appellate courts in reviewing lower court decisions involving requests for mandamus:
"A writ of mandamus will issue only if plaintiffs prove they have a 'clear legal right to performance of the specific duty sought to be compelled’ and that defendant has a 'clear legal duty to perform such act’. (Citations omitted.) This Court will not interfere with the trial court’s refusal to issue a writ of mandamus unless it is evident that such refusal constitutes a clear abuse of its discretion. (Citations omitted.)”
It is evident, then, that mandamus is both a discretionary and an extraordinary remedy. It is not to be entertained lightly and may issue only under limited circumstances. Accordingly, we must assess the factual matrix of the present case to determine whether the trial judge abused his discretion in denying the writ of mandamus as prayed for. If either Dettore does not have a "clear legal right” to the relief requested or the township board does not have a "clear legal duty” to perform the act requested, then the writ was properly denied.
Dettore argues that his right to have the township board issue the permit is clearly established by the issuance on June 4, 1973 — and renewal on January 8, 1974 — of a state license to conduct a solid waste disposal area on his land. This license was issued by the Department of Natural Resources, pursuant to the garbage and refuse disposal act of 1965, MCLA 325.291, et seq.; MSA 14.435(1), et seq. The claim is that in enacting this statute the Legislature sought to "occupy the field” of solid waste disposal, thereby prohibiting local governments from preventing what the state has permitted. Waterford Processing and Reclaiming Co v Township of Waterford, 25 Mich App 507; 181 NW2d 675 (1970), is cited in support of this preemption argument.
There appears in Waterford, supra, language which on its face provides support for the position advanced by Dettore. That support is a passage containing very general language which, taken for all it is worth, does indicate that "local regulations may not exclude what the state has permitted”. Waterford, supra, at 511.
Waterford, however, paints with a very broad brush over facts dissimilar from those at bar. In Waterford, the land sought to be transformed into a sanitary landfill was located in an area already zoned to permit such a use, in accordance with a township ordinance. Dettore’s parcel, on the other hand, is located in a residential area and is surrounded by homeowners, many of whom do not want the present use to be expanded in the manner requested by Dettore.
A second important difference between Waterford and the instant case is that in Waterford the planning commission denied the permit solely because it "believed there was the possibility of pollution of nearby Maceday Lake”. Waterford, supra, at 510. That reason was obviously untenable, given that the State Health Commissioner had granted the state license only after determining that " 'unlawful pollution will not be créated and injury to ground and surface waters will be avoided,’ through careful control of [Waterford] Processing’s operation.” Waterford, supra, at 509.
No such conflict exists in the present case. The state license was apparently issued without explanatory comment, apart from the insertion of certain conditions with which Dettore must comply. On the other hand, the Brighton Township Board of Appeals provided an itemized list of 11 quite detailed reasons for its denial of the zoning request.
Waterford, then, is factually distinguishable from the instant case and does not stand for the proposition advanced by Dettore that in enacting the garbage and refuse disposal act the Legislature intended to prevent local governments from ever prohibiting the establishment of solid waste disposal areas once permission from the state has been obtained.
One section of the statute, quoted in Waterford itself, makes the intent of the Legislature quite plain. MCLA 325.292; MSA 14.435(2) provides as follows:
"No person shall dispose of any refuse at any place except a disposal area licensed as provided in this act. Nothing in this act nor any act of the commissioner's shall usurp the legal right of a local governing body from developing and enforcing local ordinances, codes, or rules and regulations on solid waste disposal equal to or more stringent than the provisions of this act, nor will this act relieve the applicant for license to operate a disposal area from obtaining a license from a local governing body when required or relieve the person owning or operating a disposal area from responsibility for securing proper zoning permits or complying with all applicable local ordinances, codes, or rules and regulations not in conñict with this act.” (Emphasis supplied.)
This section makes it clear that, far from preempting local government action in this area, the Legislature expressly recognized the legitimate interest local governments have in maintaining a substantial degree of control over land use within their jurisdictions. In order to protect this interest, the Legislature has provided, in effect, that before a state license becomes operative, the licensee must (1) obtain a license to operate the disposal area from the local governing body if required, (2) secure proper zoning permits if necessary, and (3) comply with any applicable local regulations. This statutory scheme cannot fairly be said to prohibit local governments from excluding what the state has permitted. Quite the contrary, it is made quite explicit that the statute "mandate[s] compliance with local ordinances”. Township of Haring v City of Cadillac, 35 Mich App 260, 263; 192 NW2d 384, 385 (1971).
The result in Waterford can quite easily be reconciled with this view of the statute. In Waterford, the applicant had met zoning requirements and had complied in every respect with all applicable local regulations. Its request for a permit was denied by the local officials for a reason which was both unsupported by the facts and "in conflict with this act”. MCLA 325.292; MSA 14.435(2). Waterford, then, stands for the proposition that issuance of a state license pursuant to the garbage and refuse act prohibits the locality from denying a permit for reasons or under circumstances inconsistent with the express provisions of the act itself.
In the present case, Dettore has not secured the zoning variance he needs to establish a solid waste, sanitary landfill operation on his parcel. His request was denied for reasons which appear to us well within the bounds of the township board’s discretion. The denial of the zoning variance is not in conflict with the statute, but rather an exercise of the authority therein expressly reserved to the local governing body.
Dettore has failed to show a "clear legal right” to the relief sought below. The statute he invokes in his favor instead makes his right to operate a sanitary landfill contingent on securing the approval of the township board. That same statute, as we have seen, makes it clear that the defendant-appellee Brighton Township Board of Appeals does not have a "clear legal duty” to issue the requested permit. On the contrary, the act expressly grants to the township board the power to deny the permit, within prescribed limits which were respected here.
Accordingly, the trial judge did not abuse his discretion in declaring that Dettore failed to demonstrate that a writ of mandamus could properly be granted in this case. We affirm the trial court on the issue presented in this appeal, and do not thereby presume to pass on any of the other questions still to be litigated when the parties return to the circuit court.
Affirmed. No costs, a public question being involved.
U. S. Building & Development Co., of which Dettore is president, is also a plaintiff-appellant; for simplicity, we refer hereinafter to Dettore when speaking of plaintiffs-appellants.
256 residents living in the proposed landfill area petitioned the Board of Zoning Appeals to deny the permit.
1. Installation of the five-foot clay liner must precede the filling operation by five acres.
2. Rather than immediately recycling water which may be contaminated onto the landfill, it should be impounded in an impervious lagoon for testing prior to deciding its disposition.
3. Monitor wells must be installed and tested prior to receiving any waste.
4. Installation of the liner and underdrain system must be supervised and certified by the project engineer.
1. Applicant’s location is one of the highest and most scenic in Livingston County and potential recharge area for surrounding water supply. Landfill would make the land unusable for buildings.
2. Master plan and present zoning indicates clearly highest and best use of land is R-l residential.
3. Township residents would not benefit with proposed landfill, having adequate sanitary landfill at their disposal.
4. Existing gravel trucks produce heavy traffic with addition of refuse trucks, volume would be increased, creating potential safety hazard and excessive road maintenance and noise pollution. Landfill contracting basis, refuse could come from any area inside or outside of county, thereby using all township roads not constructed to handle trucks or additional traffic.
5. No time limit set for existence of landfill (5-10-15?) years.
6. Presently non-conforming gravel operation with practically unlimited extraction of sand and gravel.
7. Consideration of 256 signatures of residents living in proposed landfill area petitioning this board not to allow landfill.
8. Devaluation of surrounding property during projected time or life of landfill.
9. Conflict with Brighton Township Natural Resources Ordinance No. 20, § 6-2, in that putrescible material would be used at landfill.
10. This board takes into consideration with each appeal the opinions of property owners within 300 feet as required by state law. The property owners have requested the application be denied.
11. Proposed landfill would impair the public health, safety, comfort and welfare of the inhabitants of the Township of Brighton. Proof of hardship has not been shown. | [
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R. B. Burns, J.
Defendant Kenneth R. Frantila was convicted of selling LSD tablets in violation of MCLA 335.341(l)(b); MSA 18.1070(41)(l)(b).
His appeal is primarily based upon the allegedly improper cross-examination of the defendant when he testified at trial and the allegedly inadmissible evidence the prosecution was allowed to introduce through direct testimony to impeach defendant.
During direct examination the defendant was questioned about his military record. He claimed that it was unblemished except for one minor and irrelevant, nonjudicial disciplinary proceeding. During cross-examination, and over repeated objection, the prosecution was allowed to question defendant about whether he had had a serious drug problem in the service which did not result in any arrest or conviction and whether he had admitted the existence of such a problem to the arresting police officer. Defendant denied both contentions. The prosecution subsequently produced the arresting police officer who claimed that defendant had made such an admission. No further evidence was taken on the matter; consequently the existence, nature, and duration of the alleged problem was never explained or proved.
Defendant contends that this line of inquiry constituted an impermissible use of prior bad acts or misconduct for impeachment citing Wilbur v Flood, 16 Mich 40; 93 AD 203 (1867), and People v Hatt, 384 Mich 302; 181 NW2d 912 (1970). We agree. Michigan law has long held that prior misconduct not amounting to a conviction may not be used to impeach a criminal defendant.
" 'This rule of law guards against convicting an accused person because he is a bad man. Barring such evidence prevents the trier of fact from inferring that the accused person is guilty of the charged offense because he has committed other similar acts or crimes.’ ” People v DerMartzex, 390 Mich 410, 413; 213 NW2d 97, 99 (1973), quoting from People v Matthews, 17 Mich App 48, 52; 169 NW2d 138, 140 (1969).
Such evidence encouraged the trier of fact to find guilt on the basis of past impropriety rather than on the merits of the present case confirming the worst fears of DerMartzex.
In reply, the prosecution does not argue that the evidence was admissible so much as that it was needed in the interests of justice. The prosecution contends that the defendant misrepresented his military experience as problem-free and that it should, therefore, be allowed to put the possible existence of the drug problem in evidence, regardless of whether such evidence would be otherwise admissible, in order to counteract the prejudicial impact of defendant’s own misrepresentations. Grist v Upjohn Co, 16 Mich App 452; 168 NW2d 389 (1969); McCormick, Evidence (2d Ed), § 57, pp 131-133. We do not believe that the defendant was claiming his military career was free of any problems when he stated that he had not been criminally prosecuted while in the military. In any event, whatever minor confusion may have been caused by defendant could hardly be claimed to have had any significant prejudicial effect, and especially not one that required the megatonic countermeasures offered by the prosecution. In truth, the countermeasures were so potent that they undermined defendant’s right to a fair trial. A reversal is required.
To avoid repetitious appeals, we further recommend that at the defendant’s new trial the prosecution should endorse as a res gestae witness and produce at trial Michael Greenleaf as required by People v Koehler, 54 Mich App 624; 221 NW2d 398 (1974), and People v Robinson, 390 Mich 629; 213 NW2d 106 (1973).
Reversed and remanded for a new trial. | [
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J. H. Gillis, P. J.
This personal injury action arises from a February 16, 1970 accident at a Detroit railroad crossing between an automobile and a train. After plaintiffs, Frank Johnson and Verna M. Johnson, had presented their case, de fendants Grand Trunk Western Railroad Company (hereinafter referred to as Grand Trunk) and Detroit & Toledo Shore Line Railroad Company (hereinafter referred to as Shore Line) both moved for a directed verdict. On May 25, 1972 the trial judge granted each defendant’s motion. Plaintiffs appeal.
Frank Johnson and his 16-year-old daughter, Thelma Marie Johnson, were passengers in a car driven by one Thomas Fleming in an easterly direction on East Eight Mile Road. While crossing defendant Grand Trunk’s tracks at Eight Mile and Hoover Roads, the car stopped and was struck by a southbound train owned and operated by defendant Shore Line. Frank Johnson suffered permanent injuries, including brain damage. He is now a mentally retarded invalid confined to a nursing home for the rest of his life. Thelma Marie Johnson received fatal injuries, dying four days after the accident.
The engineer, Lester Cannon, testified that as the train approached the crossing, cars traveling in both directions continued to cross the tracks even though the warning lights and bells were operating. When the train was approximately 200 yards north of Eight Mile, the engineer saw plaintiffs’ automobile approach the crossing at "a good rate of speed”, then brake and come to a stop about 50 feet west of the tracks. As the train arrived at the edge of westbound Eight Mile, plaintiffs’ vehicle suddenly accelerated rapidly, then braked and came to a stop on the tracks. By this time, the train was already crossing the median strip between the westbound and eastbound lanes and was only a second or two from impact.
At the time of this accident the Grand Trunk tracks were protected by advance-warning signs, cross-buck signs and four sets of back-to-back flashing red lights installed pursuant to 1933 and 1946 orders of the Michigan Public Service Commission (hereinafter referred to as MPSC).
On June 22, 1964, the MPSC, by its railway safety inspector, Harry Taylor, conducted a formal inspection of the crossing at the request of the State Highway Department. The inspection was requested because the highway authorities proposed widening Eight Mile from three lanes in each direction to five lanes in each direction. The work was scheduled to be completed in 1965.
Mr. Taylor determined that because of a high volume of combined train and automobile traffic, a revised pattern of crossing protection was needed. He recommended a pattern of two flashing light signals, 12-foot cantilevered arms, and roadway half-gates. No objections were made to these recommendations, and, on September 2, 1965, a MPSC order was entered, which provided that the additional safeguards would be installed concurrently with the widening of Eight Mile.
When it became apparent that the proposed road widening was going to be continually delayed, Mr. Taylor made an informal inspection in November of 1968. In a memorandum to the MPSC he expressed his opinion that the protective devices were inadequate and suggested that another formal inspection be held. A formal inspection was held on January 17, 1969, and, as a result thereof, Mr. Taylor recommended in a January 29, 1969 report that the MPSC issue an order requiring installation of full roadway gates without waiting for the road widening. Grand Trunk made no objections to this recommendation, but MPSC did not issue an order permitting installation of these gates until March 2, 1970, two weeks after the accident.
I
Did the trial court err in directing a verdict for defendant Shore Line?
In reviewing a directed verdict against plaintiffs, we must view the facts in the light most favorable to plaintiffs. If these facts are such that reasonable men could honestly reach different conclusions, then the question is for the jury. Humenik v Sternberg, 371 Mich 667; 124 NW2d 778 (1963); Kroll v Katz, 374 Mich 364; 132 NW2d 27 (1965).
It is undisputed that the train was traveling with its headlight on bright and its rotating yellow flasher in operation on top of the engine, and that as the train approached the crossing the engineer turned on the engine bell and commenced sounding the regulation engine whistle of two longs, a short, and a long.
The trial judge also found that the testimony conclusively established that the train was going 30 miles per hour, in compliance with the local ordinance. However, in making this determination the judge apparently ignored the testimony of Ronald Magga, an independent eyewitness, who was working at a nearby gas station at the time of the accident. Magga testified that, in his opinion, the train was going between 30 and 40 miles per hour.
This is competent testimony. "One need not qualify as an expert in order to testify as to matters one learns through ordinary observation, such as the rate of speed * * * .” Hicks v Bacon, 26 Mich App 487, 493; 182 NW2d 620, 623 (1970). A Detroit ordinance provides for a maximum speed of 30 miles per hour for trains. Violation of local ordinances is evidence of negligence. Whinnen v 231 Corp, 49 Mich App 371; 212 NW2d 297 (1973). Therefore, there was sufficient evidence for it to find negligent operation of the train by defendant Shore Line.
However, even though there was evidence to support a jury determination of negligence, this does not mean that Shore Line is liable for plaintiffs’ injuries. Negligence is not actionable unless it is a proximate cause of the injuries for which damages are sought. Perkins v Texas & N O R Co, 243 La 829; 147 So 2d 646 (1962), involved a railroad-crossing accident. When the train was about 40-60 feet from the crossing an automobile came into view. The engineer immediately applied the emergency brakes, but the train struck the right side of the vehicle and carried it about 1250 feet. Both occupants of the car were killed. Testimony established that the train was traveling 12 miles per hour over the 25-miles-per-hour speed limit. The court held that the railroad’s negligence was not a proximate cause of the accident:
"It is fundamental that negligence is not actionable unless it is a cause in fact of the harm for which recovery is sought. It need not, of course, be the sole cause. Negligence is a cause in fact of the harm to another if it was a substantial factor in bringing about that harm. Under the circumstances of the instant case, the excessive speed was undoubtedly a substantial factor in bringing about the collision if the collision would not have occurred without it. On the other hand, if the collision would have occurred irrespective of such negligence, then it was not a substantial factor.
"The burden of proving this causal link is upon the plaintiff. Recognizing that the fact of causation is not susceptible of proof to a mathematical certainty, the law requires only that the evidence show that it is more probable than not that the harm was caused by the tortious conduct of the defendant. Stated differently, it must appear that it is more likely than not that the harm would have been averted but for the negligence of the defendant.
"In the instant case the train engineer testified that at a speed of 25 miles per hour he would have been unable to stop the train in time to avoid the accident. Other facts of record support his testimony in this regard. With efficient brakes, the mile-long train required 1250 feet to stop at a speed of 37 miles per hour. It is clear, then, that even at the concededly safe speed of 25 miles per hour, the momentum of the train would have, under the circumstances, carried it well beyond the crossing.
* * *
"Based upon the evidence of record, it appears almost certain that the fatal accident would have occurred irrespective of the excessive speed of the train. It follows that this speed was not a substantial factor in bringing about the accident.” Perkins, supra, 243 La 829, 835-839; 147 So 2d 646, 648-649.
See, Perch v New York C R Co, 294 Mich 227; 293 NW 778 (1940); Conrad v Baltimore & O R Co, 146 F Supp 151 (WD Pa, 1956); McAllister v Tucker, 88 So 2d 526 (Fla, 1956).
The facts in the instant case are analogous to those in Perkins. When plaintiffs’ automobile stopped on the tracks, the Shore Line train was already crossing the median strip separating the westbound and eastbound lanes, and was only about 50 feet from the car. Engineer Cannon immediately applied the emergency brakes, but was unable to avoid the accident. The train brakes functioned properly and the train made a mechanically perfect stop approximately 600 feet past the crossing. The engineer testified that he would not have been able to avoid hitting the car even if he had been going ten miles per hour. Plaintiffs’ expert witness, J. Carl McMonagle, also testified that a train could not stop within a distance of 50 feet whether it was going 30 or 10 miles per hour. The speed of the Shore Line train was not a proximate cause of this accident. Therefore, we hold that the trial judge did not err in directing a verdict for defendant Shore Line.
II
Did the trial court err in directing a verdict for defendant Grand Trunk?
Grand Trunk was not involved with the actual operation of the train. Therefore, their only possible liability would be in negligently maintaining the railroad crossing. Defendant Grand Trunk contends that because it was in compliance with all MPSC orders requiring protective crossing devices and cooperated fully with MPSC investigations, it did all it could reasonably be expected to do to fulfill its duty to maintain a safe crossing.
It is undisputed that Grand Trunk was in compliance with the 1933 and 1946 MPSC orders. However, compliance with MPSC orders does not preclude a finding of negligence. Emery v Chesapeake & O R Co, 372 Mich 663; 127 NW2d 826 (1964); Ebel v Saginaw Road Commissioners, 386 Mich 598; 194 NW2d 365 (1972). In Ebel, plaintiffs car collided with a flasher warning device installed pursuant to a 1928 MPSC order. In remanding for a new trial because of the trial court’s refusal to instruct the jury on the railroad’s common-law duty to maintain safe crossings, the Court said:
"In Emery v Chesapeake & O R Co, 372 Mich 663; 127 NW2d 826 (1964), and in Baldinger v Ann Arbor R Co, 372 Mich 685; 127 NW2d 837 (1964), this Court treated extensively of the 'unusual conditions’ or 'special circumstances’ and 'local warnings’ rule, and reaffirmed the long-standing rule that the railroad’s duty of due care may require it to provide warnings over and above those required by statutory law or safety regulations. The test is not whether the conditions were un usually dangerous, but whether what was done under the circumstances met the test of an ordinarily prudent man under the same or similar circumstances.
* * *
"Compliance with the commission’s orders for the installation and maintenance of certain warning devices are among the circumstances and certainly evidence the jury should consider in determining whether the railroad was negligent, but it cannot be said as a matter of law that compliance with such commission’s order is to be equated as freedom from negligence.” Ebel, supra, 386 Mich 598, 605-606; 194 NW2d 365, 368.
We recognize that MCLA 257.615; MSA 9.2315, has been interpreted as prohibiting railroads from installing any sign or signal at railroad crossings without authorization from the MPSC. People v Grand Trunk W R Co, 3 Mich App 242; 142 NW2d 54 (1966); Masters v Grand Trunk W R Co, 13 Mich App 80; 163 NW2d 661 (1968). However, these cases only stand for the proposition that the railroad’s common-law duty of care must be interpreted in light of the statute. They do not stand for the proposition that MCLA 257.615; MSA 9.2315, has extinguished the railroad’s common-law duty. People v Grand Trunk W R Co, supra, 3 Mich App 242, 248; 142 NW2d 54, 56-57, said:
"This common-law duty does not give railroads the privilege of violating the statutory law of our State, but does require them to take such action as the law permits; i.e., where a dangerous grade crossing exists and the signs or warnings present are deemed insufficient by a railroad, it may request the proper highway authorities or the public service commission as provided by law for the authority to remedy the situation.”
In the instant case two expert witnesses, Mr. Taylor and Mr. McMonagle, testified that, in their opinion, the crossing protection, as of 1968, was inadequate. Engineer Cannon testified that he knew that cars frequently crossed the tracks while the signals were in operation. Moreover, Mr. Stonehouse, a signal engineer for Grand Trunk, testified that he knew traffic on Eight Mile Road was heavy, and that frequent attempts were made by motorists to "beat the train”.
We think this is sufficient evidence for a jury to determine that Grand Trunk, by merely being in compliance with MPSC orders and cooperating with MPSC investigations, did not take sufficient action to satisfy its common-law duty of care. Plaintiffs contend, and we agree, that a jury could find that defendant Grand Trunk should have known of the dangerous conditions at this crossing, and, therefore, should have petitioned the MPSC for an inspection prior to 1964, the year of the inspection requested by the highway department. Or, a jury could find that sometime between 1964 and the 1969 inspection requested by Mr. Taylor, Grand Trunk should have, due to the delay in the widening of Eight Mile, petitioned for an inspection. Furthermore, even if a . jury were to conclude that Grand Trunk had no duty to petition the MPSC, it could conclude that defendant should have taken other preventive action such as use of flagmen at peak traffic hours.
Having determined that a jury could have found that Grand Trunk breached its common-law duty of care to plaintiffs, we hold that the trial judge erred in directing a verdict for this defendant.
Ill
Since on retrial of this matter certain eviden tiary questions may arise again, we will address ourselves briefly to those problems.
First, plaintiff sought to admit a 1946 MPSC inspection report. The trial court refused to allow this report into evidence on the grounds that it was hearsay, and that it wasn’t admissible under the business-records or public-records exception to the hearsay rule. If this report is offered to prove the truth of the matters asserted therein, then we agree with the trial court’s ruling. Matthews v Aluminum Acceptance Corp, 1 Mich App 570; 137 NW2d 280 (1965). However, if plaintiffs seek to introduce this report only to show Grand Trunk’s notice and knowledge of the crossing’s dangerous condition, there is no hearsay problem and it should be admitted. Shimel v Interstate Motor Freight System, 5 Mich App 143; 146 NW2d 130 (1966).
Secondly, the trial court refused, also on hearsay grounds, to allow into evidence certain interdepartmental memorandums between Grand Trunk employees. As with the MPSC report, these documents are admissible to show the knowledge of Grand Trunk. Moreover, if these employee statements were made within the scope of their employment, they may be introduced into evidence as admissions of Grand Trunk. See Kalamazoo Yellow Cab Co v Kalamazoo Circuit Judge, 363 Mich 384; 109 NW2d 821 (1961); Bauman v Grand Trunk W R Co, 18 Mich App 450; 171 NW2d 468 (1969).
Lastly, plaintiffs attempted to question Ronald Magga about 15 "near misses” at the crossing. The court ruled that the witness could testify as to prior accidents, but not as to near misses or close calls. The trial judge did not abuse his discretion in excluding this testimony. Freed v Simon, 370 Mich 473; 122 NW2d 813 (1963).
We affirm as to defendant Shore Line, and reverse and remand for a new trial as to defendant Grand Trunk. As to the action between plaintiffs and Shore Line, costs to Shore Line. As to the action between plaintiffs and Grand Trunk, costs to plaintiffs. | [
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Bashara, P. J.
This suit was instituted by plaintiff for the recovery of damages for malpractice against Dr. Synkonis. Plaintiff further contended that defendant Riverside Osteopathic Hospital (hereinafter referred to as Riverside) was liable under the theory of agency by estoppel. A jury verdict awarded plaintiff $50,000 against defendants jointly and severally. It is from this judgment that defendants appeal.
Plaintiff suffered a minor fall, injuring her right shoulder. Plaintiff received conservative treatment from a physician, but when there was no improvement in her condition, she sought the advice of Dr. Synkonis who, on Wednesdays, had an out-patient practice at defendant Riverside. Defendant Dr. Synkonis and Dr. Ketter diagnosed plaintiffs condition as adhesive capsulitis and recommended surgery. Plaintiff was informed by Dr. Synkonis that there would be considerable pain after the operation, and that she would have to engage in postoperative therapy.
The surgical procedure, known as forced manipulation, was performed. Plaintiff complained of excruciating pain upon regaining consciousness. Her shoulder was not X-rayed at this time to determine if there were any complications. On this same day Dr. Synkonis ordered plaintiff to begin therapy, which was continued for the next six days. During the entire theraputic procedure plaintiff continued to complain of excruciating pain. On the sixth day after the operation, an X-ray of plaintiffs shoulder disclosed that she was suffering from a dislocated shoulder.
Dr. Synkonis testified during the course of plaintiffs proofs that the dislocation could have occurred during surgery or the subsequent therapy. He further stated that sound medical practice required that an X-ray be taken before discharge or whenever complications were suspected after surgery. The only further expert testimony offered by plaintiff was as to damages.
At the close of plaintiffs proofs, defendants moved for a directed verdict arguing that there had been no expert testimony that Dr. Synkonis had violated any medical standards with respect to the diagnosis, the surgical procedure or the postoperative treatment. This motion was denied, as was defendant’s motion for a judgment notwithstanding the verdict or a new trial.
Upon reviewing a motion for a directed verdict, all the facts and reasonable inferences must be viewed in the light most favorable to plaintiff. Daniel v McNamara, 10 Mich App 299; 159 NW2d 339 (1968).
It is well recognized in Michigan that expert testimony is required to show that a doctor has violated the standard of care required unless the injury is of such a character that laymen could find negligence. Roberts v Young, 369 Mich 133; 119 NW2d 627 (1963); Marchlewicz v Stanton, 50 Mich App 344; 213 NW2d 317 (1973).
Defendant Dr. Synkonis himself, testifying during plaintiffs proofs, set forth a standard of care necessary in this cause. His testimony was verified by Dr. Heliotis, who testified on behalf of defendants. Plaintiff testified that although she was warned there would be some postoperative pain, she complained of continued and excruciating pain over the entire six-day period. We further note that Dr. Synkonis himself testified that the X-ray was ordered by a resident of the hospital after Dr. Synkonis was prepared to discharge plaintiff. He testified that he did not suspect any complications, even after examining her on at least two different occasions after surgery.
Under these circumstances, we hold that there was a question of fact from which a jury could find that Dr. Synkonis violated the standard of medical practice in not X-raying plaintiff’s shoulder for six days. The judge was correct in denying defendant’s motions.
The second issue presented is whether the trial court erred in holding defendant, Riverside, vicariously liable for the negligence of Dr. Synkonis who simply used its facilities.
Plaintiff argues, citing Howard v Park, 37 Mich App 496; 195 NW2d 39 (1972), that defendant hospital was liable to plaintiff since an agency by estoppel had been created.
An examination of Howard v Park, supra, discloses that there are three elements necessary to find an agency by estoppel:
" ' "[First] the person dealing with the agent must do so with belief in the agent’s authority and this belief must be a reasonable one; [second] such belief must be generated by some act or neglect of the principal sought to be charged; [third] and the third person in relying on the agent’s apparent authority must not be guilty of negligence.” ’ ” 37 Mich App 500-501,
Howard v Park, supra, is distinguishable from the case at bar. In Howard, the Court, in finding the defendant hospital liable, relied on the three factors, two of which are not present in this case. There the doctor, who was the sole proprietor of the hospital, referred plaintiff to the defendant doctor and plaintiff was billed by defendant hospital with the doctor’s name on its stationery. The only factor common to both Howard, supra, and this case is that the treatment occurred at defendant’s hospital.
The sole factor that defendant Riverside’s facilities were used by defendant Dr. Synkonis to treat plaintiff was not a sufficient act by Riverside to create any appearance that Dr. Synkonis was its agent. We, therefore, hold that plaintiff could not reasonably infer that Dr. Synkonis was an agent of Riverside. Thus, defendant Riverside is released from any liability to plaintiff.
The third issue is whether the jury award of $50,000 to plaintiff was excessive and contrary to the great weight of the evidence. We note that plaintiff’s damages can be based on two sources. First, the extra amount of pain and suffering caused by the failure to discover and remedy the dislocation; and second, the permanent injury, if any, caused by this delay.
Where it has been alleged that the verdict was excessive, the standard on review has been whether the verdict shocks judicial conscience, or whether there was evidence sufficient to support the verdict. Haidy v Szandzik, 46 Mich App 552; 208 NW2d 559 (1973). Pain and suffering has also been held to be a proper consideration of the jury when awarding damages for a medical malpractice action. Daniel v McNamara, 10 Mich App 299; 159 NW2d 339 (1968).
In all candor, it might be possible to postulate that a different jury may have reached a verdict in a lesser amount. We cannot say, however, that the verdict in the instant action was such to shock our judicial conscience. We, therefore, hold that the jury in awarding plaintiff $50,000 in the instant action was not unsupported by the evidence.
Reversed in part and affirmed in part.
No costs since neither party has prevailed in full.
Dr. Synkonis and Dr. Ketter were associates at the time of the injury. However, at the time of trial Dr. Ketter was deceased and was not a party to this action. | [
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Allen, J.
Does a circuit court have concurrent jurisdiction with the Supreme Court over a petition by an unsuccessful applicant for the bar examination for relief from an adverse decision by the Michigan State Board of Law Examiners? On February 7, 1980, the circuit court for Ingham County answered this question in the negative, and plaintiff appeals of right. The question posed is one of first impression.
In July 1978, plaintiff took a Michigan bar examination and scored 129.5 which was less than the 135 points needed for certification. Pursuant to rules of the Board, plaintiff appealed her essay scores to defendant Board which, after review, increased her score to 134. When plaintiff’s request for reconsideration was denied, plaintiff filed a complaint in Ingham County Circuit Court on February 23, 1979. Count I of the complaint requested review under the Administrative Procedures Act of 1969, MCL 24.201 et seq.; MSA 3.560(101) et seq. Count II sought a writ for superintending control and Count III alleged that the Board had an affirmative duty to certify plaintiff and sought relief by mandamus.
On April 10, 1979, defendant Board filed a motion for accelerated judgment and for summary judgment, claiming that the court lacked personal and subject matter jurisdiction and that plaintiff had failed to state a claim upon which a circuit court could grant relief. Following a hearing, the court granted defendant’s motion on the ground that it lacked subject matter jurisdiction. An order to this effect was entered on February 13, 1980. From this order, plaintiff appeals of right.
We promptly reject plaintiff’s claim under Count I. Defendant Board is clearly a judicial agency, subject to the supervision of the Supreme Court. MCL 600.904; MSA 27A.904. Under § 3 of the Administrative Procedures Act, any agency in the judicial branch is exempt from the act. MCL 24.203(2); MSA 3.560(103)(2). Therefore, we conclude that the circuit court attains no jurisdiction under the Administrative Procedures Act. In this respect, we further note — as did the trial court— that the statute creating the Board of Law Examiners contains no provisions for review of Board decisions under either the Administrative Procedures Act or by the circuit court.
Counts II and III seek superintending control and mandamus, respectively, based on the broad grant of powers conferred upon the circuit courts under Const 1963, art 6, § 13. That section reads:
"The circuit court shall have original jurisdiction in all matters not prohibited by law; appellate jurisdiction from all inferior courts and tribunals except as otherwise provided by law; power to issue, hear and determine prerogative and remedial writs; supervisory and general control over inferior courts and tribunals within their respective jurisdictions in accordance with rules of the supreme court; and jurisdiction of other cases and matters as provided by rules of the supreme court.” (Emphasis supplied.)
Is the State Board of Law Examiners an "inferior tribunal” as that term is used in art 6, § 13? We think not. Examination of the statute creating the Board of Law Examiners and the court rules governing the Board discloses that, rather than being a "tribunal”, the Board is an agency designed to assist the Supreme Court in its statutorily-granted power over the membership of the state bar. MCL 600.904; MSA 27A.904. Board members are nominated by the Supreme Court, and rules under which the Board operates are subject to approval by the Supreme Court. MCL 600.925; MSA 27A.925. The unique relationship between the Board and the Supreme Court distinguishes the Board from license granting boards under the jurisdiction of the Department of Licensing and Regulation whose rules and orders are subject to review by the circuit court. Those license conferring boards are under the control of the executive branch of government, whereas defendant Board is under the control of the judicial branch of government. To give the circuit court the power of review over actions of the Board of Law Examiners is in effect giving an inferior tribunal power to review decisions for a higher tribunal. In In the Matter of the Petition for a Representation Election Among Supreme Court Staff Employees, 406 Mich 647, 663; 281 NW2d 299 (1979), the Supreme Court said:
"As a further incidental indication of how far out of the order of things it is to have MERC holding court over the Supreme Court, an appeal from the order of MERC is to the Court of Appeals. If MERC has jurisdiction to determine cases with the Supreme Court as a party, then the Supreme Court might be in a position to appeal from the decision of MERC to the Court of Appeals, which again is an inferior tribunal to the Supreme Court. In short, MERC assuming jurisdiction over the Supreme Court puts everything upside-down.”
Finally, plaintiff argues that circuit court review of the Board’s decisions is mandated by Const 1963, art 6, § 28, and by the statutory implementation thereof, MCL 600.631; MSA 27A.631, which reads:
"An appeal shall lie from any order, decision or opinion of any state board, commission or agency, authorized under the laws of this state to promulgate rules from which an appeal or other judicial review has not otherwise been provided for by law, to the circuit court of the county of which the appellant is a resident or to the circuit court of Ingham County, which court shall have and exercise jurisdiction with respect thereto as in nonjury cases.” (Emphasis supplied.)
Again we disagree. Review by the Supreme Court has long been exercised. Aguilan v State Board of Law Examiners, 400 Mich 983 (1977), Bindra v State Board of Law Examiners, 400 Mich 1030 (1977), Burns v State Board of Law Examiners, 402 Mich 967 (1978), Citron v State Board of Law Examiners, 402 Mich 957 (1978). Since the constitutional provision does not specify review by any particular court and since applications for review are being treated by the Supreme Court as applications for writs of superintending control, there is no violation of the constitutional mandate.
Technically, there is noncompliance with that part of the statutory implementation emphasized above because no method of review of decisions by the State Board of Law Examiners has expressly been provided by law. But the Supreme Court has recently noted this omission and has proposed amending current GCR 1963, 862.5(b), which now allows the Supreme Court to exercise superintending control over the Attorney Discipline Board and the Attorney Grievance Commission, to include the Board of Law Examiners. See Special Orders, 407 Mich 1134. However, the path of review is clearly indicated by the Supreme Court’s orders in Aguilan, supra, and subsequent cases and by the proposed amendment to GCR 1963, 862.5(b). Any other method of review would fly in the face of the admonitions in Election Among Supreme Court Employees, supra. Both the Attorney Discipline Board and the Attorney Grievance Board exercise control over membership of the bar and, like the Board of Law Examiners, are extensions of the Supreme Court’s power. Thus, we conclude that inherent power exists to exercise similar control over the Board of Law Examiners, even though it is not expressed in the court rule currently in effect.
Affirmed. No costs, an issue of public interest being involved.
The trial court rejected defendant’s claim that the circuit court lacked personal jurisdiction over defendant pursuant to GCR 1963, 116.1(1).
"All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law.”
It matters not whether the applicant’s complaint is entitled a "motion for review” (Aguilan, supra), or mandamus (Citron, supra), it is treated by the Supreme Court as a complaint for superintending control, reviewable by the Supreme Court.
The proposed rule change is numbered 6.304. The new numbering is to correspond with the complete redraft of court rules published in 402A Mich 427. | [
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D. R. Freeman, J.
Defendant, George A. Wallace, was charged with breaking and entering with intent to commit larceny, contrary to MCL 750.110; MSA 28.305, and was convicted by a jury on that charge on August 18, 1978. He was sentenced to serve six years eight months to ten years on that charge. After the jury was excused, the prosecution filed a supplemental information charging the defendant as a habitual offender. On November 9, 1978, the defendant was convicted of being a habitual offender, contrary to MCL 769.12; MSA 28.1084. His prior sentence was vacated and he was sentenced to serve 15 to 30 years imprisonment and appeals as of right.
The defendant first contends that his due process rights were violated because a police officer’s original notes of a confession made shortly after the defendant’s arrest were not available at trial. In People v Torrez, 90 Mich App 120; 282 NW2d 252 (1979), this Court quoted the suppression of evidence rule embodied in Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963), holding that suppression by the prosecution of evidence favorable to an accused after a request for the information has been made by the defendant violates due process where the evidence is material either to guilt or punishment, irrespective of the good or bad faith of the prosecution.
We are persuaded that the police officer’s notes of the interrogation constitute material evidence in this case. People v Eddington, 53 Mich App 200; 218 NW2d 831 (1974). See also United States v Agurs, 427 US 97, 107; 96 S Ct 2392; 49 L Ed 2d 342 (1976), where the Supreme Court found materiality established by a mere "substantial basis for claiming materiality”. The question as to whether the evidence was favorable to the defendant is not so easily answered, however, because it appears that the notes were either lost or destroyed and thus are not available for review by this Court.
In People v Anderson, 42 Mich App 10; 201 NW2d 299 (1972), this Court found the prosecution’s failure to remit certain photographs used in a photographic show-up to be conclusive evidence of defense counsel’s inability to properly cross-examine prosecution witnesses. Because the unavailability of the notes herein possibly inhibited defense counsel’s ability to cross-examine the interrogating officer, such evidence will be viewed as beneficial to defendant.
Because the disputed notes were requested by the defendant prior to trial, the only remaining factor to be considered is whether the government can be held to have suppressed the evidence. At trial, the following colloquy occurred between defense counsel and the police officer who interrogated the defendant.
"Q Who was present in the room when you were talking with Mr. Wallace?
"A Myself and Mr. Wallace.
"Q There was not a stenographer there?
"A No, there was not. We do not employ a stenographer.
"Q There was no one else there taking notes?
"A I was taking notes.
"Q You were taking notes. Do you have those original notes, sir?
"A No, I don’t. I thought I did.
"Q You destroyed them?
"A I don’t know.”
Generally, absent intentional suppression or bad faith, the loss of evidence which occurs before a defense request for it does not mandate reversal. Still, the government has the duty to preserve relevant evidence and the burden to explain non-production thereof. People v Eddington, supra. Where there was no effort made to preserve the evidence initially, this Court has remanded the matter to the trial court for a determination of the quality of the prosecutor’s conduct and the nature of the lost evidence. People v Anderson, supra. However, once bad faith on the part of the prosecution is shown, suppression is required. People v Albert, 89 Mich App 350; 280 NW2d 523 (1979).
In this case, no intentional suppression or bad faith on the part of the prosecution has been demonstrated. At most, it appears that there was a negligent failure to preserve the officer’s notes. If the formal police report submitted to defense counsel was not materially different from the original rough notes, there would be no violation of the Brady standard. United States v McCallie, 554 F2d 770, 773 (CA 6, 1977), United States v Lane, 479 F2d 1134 (CA 6, 1973). The record, however, does not disclose how comprehensive and inclusive the report is or the extent to which the two documents correspond. As a result, the fact that a police report was filed does not eliminate the Brady due process issue.
The record does not indicate the extent of the efforts that the prosecution undertook to preserve the evidence in question. The duty of disclosure required in Brady operates as a duty to preserve prior to a request for discovery. United States v Bryant, 142 US App DC 132; 439 F2d 642 (1971), People v Eddington, supra. As a result, because there has been no explanation of the failure of the prosecution to preserve the officer’s notes of the confession, Brady requires a remand to determine what efforts the police and prosecution made in initially preserving the evidence. Should prosecutorial bad faith be shown to have been present prior to the defendant’s discovery request, reversal of the defendant’s conviction is appropriate. People v Albert, supra, quoting People v Amison, 70 Mich App 70; 245 NW2d 405 (1976).
The defendant next alleges that reversible error resulted from the inclusion of two convictions, later reversed, in the information charging him as an habitual offender. Our review of the record indicates that, in fact, the information charging the defendant as a fourth offender did not mention these two convictions. Rather, the charge brought against the defendant was based upon other prior offenses. Thus, the defendant’s allegation of error is without merit.
Finally, the defendant, in a motion for peremptory reversal, asserts that his habitual offender conviction violates the standards set out in People v Fountain, 407 Mich 96; 282 NW2d 168 (1979), in that he was not charged as a habitual offender until after his conviction on the underlying charge. We agree. Accordingly, defendant’s habitual offender conviction is reversed and his enhanced sentence vacated. The original sentence for the underlying felony is hereby reinstated.
The cause is remanded for an evidentiary hearing. If the prosecutor is able to adequately explain the nonproduction of the interrogating officer’s notes, then the breaking and entering conviction should be affirmed. If the prosecutor is unable to explain the nonproduction, or if bad faith or intentional destruction is demonstrated, a new trial should be ordered with all evidence of the interrogation suppressed. People v Albert, supra. We retain jurisdiction. | [
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M. J. Kelly, J.
On September 16, 1976, defendant Jerry Wayne Stegall was convicted by a jury of first-degree felony murder, contrary to MCL 750.316; MSA 28.548, and conspiracy to commit armed robbery, contrary to MCL 750.157(a), MCL 750.529; MSA 28.354(1), MSA 28.797. Thereafter, defendant was sentenced to separate life terms of imprisonment for each offense.
In a previous proceeding defendant appealed as of right, raising for review a single issue of whether the trial court abused its discretion in denying a motion to preclude the prosecutor from cross-examining the defendant regarding prior felony convictions in the event the defendant took the stand. This Court affirmed the convictions in an unpublished per curiam opinion (Docket No. 77-14, released April 6, 1978). On June 30, 1978, the defendant filed a pro se delayed motion for a new trial in the circuit court. The motion was denied by the circuit judge on September 11, 1978. The defendant then filed a pro se delayed application for leave to appeal, which was granted by this Court on June 27, 1979.
In this appeal, defendant contends that the trial court erred in denying his delayed motion for a new trial. In support of this allegation, defendant first asserts that he was denied the effective assistance of counsel at trial. Upon examination of the record, however, we find that defense counsel met the standards for effective assistance set forth in People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), reh den 399 Mich 1041 (1977), and People v DeGraffenreid, 19 Mich App 702; 173 NW2d 317 (1969).
Defendant’s second claim of error asserts reversible prejudice arising from the response of a prosecution witness during cross-examination, which exposed to the jury a prior term of imprisonment and possible murder committed by defendant:
”Q [by defense counsel]: Did Jerry ever talk to you about his former life or his life before he came to Flint; did he brag to you about that — what happened?
”A [by the witness]: He talked once a little bit about coming from North Carolina.
”Q. Did Jerry appear to you to be a bragger?
'A. Not really. Not really. He had mentioned about when he was in prison before, but other than that, Jerry was very quiet. He never said too awful much. He did say that he was — that he had killed a guy or something in North Carolina or in that area wherever he was; I do not remember where he did it.”
In response to this remark, defense counsel requested a mistrial or, alternatively, a corrective jury instruction. The trial court chose to admonish the jury to disregard the unsolicited response.
If such a prejudicial response could reasonably have been anticipated by defense counsel, we would tend to agree with the defendant that a mistrial was required and that the defendant’s delayed motion for a new trial should have been granted. See e.g., People v Greenway, 365 Mich 547; 114 NW2d 188 (1962), People v McGee, 90 Mich App 115; 282 NW2d 250 (1979). However, the witness’s prejudicial response was clearly unanticipated. A nonresponsive volunteered answer to a proper question is not cause for granting a mistrial. People v Kelsey, 303 Mich 715, 717; 7 NW2d 120 (1942), People v Yarbrough (On Remand) (On Rehearing), 86 Mich App 105; 272 NW2d 345 (1978). In People v Fleish, 321 Mich 443, 463; 32 NW2d 700 (1948), the Court refused to find grounds for reversal of defendant’s conviction when one witness referred at trial to the defendant’s incarceration at Alcatraz. The Court stated:
"Inadvertent irregularities of this character are bound to occur in the course of prolonged, hotly-contested trials, and when, as in the instant case, the objectionable testimony is purged from the record by the trial court, the irregularity should not be held to constitute reversible error in the absence of a persuasive showing of prejudice.”
See also People v McQueen, 85 Mich App 348; 271 NW2d 231 (1978), for a similar conclusion regarding the prejudicial effect of an unresponsive answer.
Nevertheless, this Court must decide whether the prejudicial effect of the incompetent testimony has resulted in manifest injustice. People v Chambers #1, 64 Mich App 311; 236 NW2d 702 (1975), People v Duncan, 55 Mich App 403; 222 NW2d 261 (1974), and whether the prejudicial effect of the incompetent testimony could have been cured by a cautionary instruction by the trial judge. People v Chambers #1, supra, 313, citing United States v Smith, 403 F2d 74 (CA 6, 1968).
We find the trial court’s corrective instruction to the jury cured any prejudice resulting from the witness’s comments. There was overwhelming evidence implicating the defendant. We find little probability that the remarks were so strong in effect as to influence the outcome of the jury verdict. We decline to reverse the defendant’s conviction on this basis.
Defendant next contends that the trial court’s instructions effectively removed from the jury’s consideration the element of malice and improperly imputed the malice required for felony murder from the commission of the underlying felony. The trial court’s instructions included the following:
"To establish his guilt the prosecution must prove each of the following elements beyond a reasonable doubt. One, that Robert Jarvais died on or about April third, nineteen seventy-six; two, that his death was caused by the defendant during an armed robbery, or that his death occurred as a direct result of the commission of the crime of armed robbery by the defendant; three, that at the time of the robbery which resulted in the death, the defendant either intended to kill Mr. Jarvais or knowingly created a very high degree of risk of his death or consciously intended to commit the crime of armed robbery resulting in the death; and four, that the defendant caused the death of Robert Jarvais without justification, excuse, or mitigation.” (Emphasis added.)
Defense counsel made no objection to this instruction at trial. Nevertheless, an accused is entitled to instructions which are not erroneous or misleading. People v Liggett, 378 Mich 706; 148 NW2d 784 (1967), People v Ross, 69 Mich App 705; 245 NW2d 335 (1976).
The Court of Appeals is presently divided on the issue of whether jury instructions on a charge of felony murder must include a separate discussion of malice. The issue remains before the Supreme Court for ultimate resolution. See People v Wright, 80 Mich App 172; 262 NW2d 917 (1977), lv gtd 402 Mich 938 (1978), People v Wilder, 82 Mich App 358; 266 NW2d 847 (1978), lv gtd 403 Mich 816 (1978), People v Robert G Thompson, 81 Mich App 348; 265 NW2d 632 (1978), lv gtd 402 Mich 938 (1978).
In support of his argument on this issue, defendant principally relies on this Court’s decision in People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976), which found reversible error in the trial court’s failure to instruct the jury on the element of malice for felony murder. See also People v Wright, supra. The Fountain Court concluded that the intent attending commission of the underlying felony could not be imputed to satisfy the malice requirement of first-degree felony murder. However, we find the decision and supporting rationale expressed in People v Till, 80 Mich App 16; 263 NW2d 586 (1977), and Judge Kaufman’s dissenting opinion in People v Wilson, 84 Mich App 636, 639-655; 270 NW2d 473 (1978), to be the more persuasive. In Till, the Court held:
"The cases alluded to in Fountain establish that it is for the jury to determine whether a killing results from the commission of a felony so as to form the essential link between the killing and the malice associated with the commission of the felony. A finding of malice may be made without finding an intention to kill. Malice is a state of mind that, while encompassing an intent to kill, may also exist absent such an intent. It may exist where one engages in the commission of an act dangerous to human life in wanton and wilful disregard of the unreasonable risk that death or serious bodily harm may result. People v Hansen, 368 Mich 344, 350; 118 NW2d 422, 425 (1962).” People v Till, supra, 29.
Applying the above rationale to the present case, it is apparent that no error occurred from the trial court’s instructions.
Finally, we address an issue not raised by the parties. The defendant was convicted of both first-degree felony murder and conspiracy to commit armed robbery. Because the conspiracy constitutes a necessary element of the felony murder charge, the defendant’s conspiracy conviction must necessarily be vacated. People v Hicks, 88 Mich App 675; 279 NW2d 45 (1979), People v Wilder, supra.
Affirmed in part, vacated in part.
G. R. Corsiglia, J., concurred.
The Supreme Court has addressed this issue in People v Aaron, 409 Mich 672; 299 NW2d 304 (1980), released on November 24, 1980. The Aaron decision was not, however, made applicable to trials concluded prior to the date of that decision. | [
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Allen, P.J.
The Insurance Commissioner appeals of right from a judgment of the Ingham County Circuit Court, entered September 17, 1980, which upholds Michigan Life Insurance Company’s decision to discontinue offering mortgage disability policies to miners.
Michigan Life had offered mortgage disability insurance to persons in all occupational classifications, charging a uniform rate to all purchasers, régardless of risk. However, in early 1977, it decided to issue no new policies for persons employed in "Class B” occupations, which includes miners.
On September 22, 1978, the Insurance Bureau staff issued a notice of hearing, alleging that Michigan Life had engaged in an unfair trade practice, contrary to § 2027 of the Michigan Insurance Code, MCL 500.2027; MSA 24.12027, by refusing to offer mortgage disability insurance to miners. The notice of hearing was prompted by a letter of complaint on behalf of members of the United Steel Workers of America. A hearing was held before an examiner on December 19, 1978, and on September 6, 1979, a proposal for decision was issued, recommending that Michigan Life be found in violation of § 2027. Exceptions and responses were filed thereafter. On April 8, 1980, the commissioner issued a final order finding Michigan Life in violation of § 2027. Michigan Life was ordered to cease refusing to offer mortgage insurance to otherwise eligible miners.
Michigan Life petitioned the circuit court for review of the administrative decision. Life Association of Michigan intervened as a party plaintiff by stipulation. The circuit court reversed the bureau’s final order and this appeal followed.
MCL 500.2027; MSA 24.12027 provides in part:
"Unfair methods of competition and unfair or deceptive acts or practices in the business of insurance include:
"(a) Refusing to insure, or refusing to continue to insure, or limiting the amount of coverage available to an individual or risk because of any of the following:
"(i) Race, color, creed, marital status, sex, or national origin, except that marital status may be used to classify individuals or risks for the purpose of insuring family units.
"(ii) The residence, age, handicap, or lawful occupation of the individual or the location of the risk, unless there is a reasonable relationship between the residence, age, handicap, or lawful occupation of the individual or the location of the risk and the extent of the risk or the coverage issued or to be issued, but subject to subparagraph (iii). This section shall not prohibit an insurer from specializing in or limiting its transactions of insurance to certain occupational groups, types, or risks as approved by the commissioner of insurance. The commissioner shall approve the specialization for an insurer licensed to do business in this state and whose articles of incorporation contained a provision on July 1, 1976, requiring that specialization.
"(iii) For property insurance, the location of the risk, unless there is a statistically significant relationship between the location of the risk and a risk of loss due to fire within the area in which the insured property is located. As used in this subparagraph, 'area’ means a single zip code number under the zoning improvement plan of the United States postal service.
"(c) Charging a different rate for the same coverage based on sex, marital status, age, residence, location of risk, handicap, or lawful occupation of the risk unless the rate differential is based on sound actuarial principles, a reasonable classification system, and is related to the actual and credible loss statistics or reasonably anticipated experience in the case of new coverages. This subdivision shall not apply if the rate has previously been approved by the commissioner.” (Emphasis added.)
The controversy in this case focuses on the meaning of the reasonable relationship exception as set forth in the emphasized language in subparagraph (ii). According to the Commissioner’s interpretation, a reasonable relationship exists between lawful occupation and the extent of the risk where: (1) no meaningful rate can be calculated to cover the risk by using available statistical tools, or (2) the insurance premium can be calculated but would be so high as to equal or exceed the amount insured. Michigan Life argues that an insurer may legally refuse coverage because of occupation upon a showing that the occupation creates a risk of loss that is higher than that associated with other occupations.
It was clearly established at the administrative hearing that the risk of loss for miners is higher than for other occupations. Richard Johnson, the expert for the bureau, testified that while Michigan Life’s average monthly mortgage premium rate varies from 2.75 to 5 percent of the monthly mortgage payment, the premium for "surface miners” would vary from 5 to 9 percent of the monthly mortgage payment. Henry Wren, an as sistant vice-president and actuary for Michigan Life, testified that for 1977, 68 out of 129 Class B claims were caused by job-related injuries, while for the same period only 15 out of 60 Class AAA, AA, and A claims were job-related. Further, in 1974, when the company insured all occupations at a uniform rate, the company’s loss ratio (claims as a ratio to premiums) was close to 200 percent. However, after changing the policy coverage to exclude Class B risks, the loss ratio dropped to a little less than 100 percent.
Since Michigan Life made no claim that a meaningful insurance rate could not be calculated and the evidence showed that premiums would not equal or exceed the benefits available, the commissioner found that Michigan Life’s policy was outside the reasonable relationship exception. The circuit court reversed, holding that Michigan Life may decline to offer mortgage disability insurance to miners, and to other persons employed in Class B occupations, since these occupations are associated with a higher risk of loss.
In interpreting a statute, the object is to ascertain the legislative intent in enacting the provision. Smith v City Comm of Grand Rapids, 281 Mich 235, 240; 274 NW 776 (1937). The specific language of the statute itself should be examined. Kalamazoo City Education Ass’n v Kalamazoo Public Schools, 406 Mich 579, 603; 281 NW2d 454 (1979).
Legislative intent must be determined from consideration of all provisions of the enactment in question. Braden v Spencer, 100 Mich App 523, 530; 299 NW2d 65 (1980). Each word, sentence, and provision should be read together to harmonize the meaning, giving effect to the act as a whole. General Motors Corp v Erves (On Rehearing), 399 Mich 241, 255; 249 NW2d 41 (1976). While legislative intent must be inferred from the statutory language, the particular words are to be applied to the subject matter and the general scope of the provision and considered in light of the general purpose sought to be accomplished or the evil sought to be remedied by the statute. White v City of Ann Arbor, 406 Mich 554, 562; 281 NW2d 283 (1979). Where the Legislature has properly delegated authority to an administrative agency to carry out the mandates of a statute, the courts should give deference to the agency’s interpretation of the provision, although they are not bound thereby. Lorraine Cab v Detroit, 357 Mich 379, 384; 98 NW2d 607 (1959). Finally, our courts have often recognized that the insurance industry is of great public interest and insurance laws are to be liberally construed in the interests of the public, policyholders, and creditors. Attorney General ex rel Comm’r of Ins v Michigan Surety Co, 364 Mich 299, 325; 110 NW2d 677 (1961).
Applying these principles, we find the commissioner’s interpretation of the reasonable relationship exception better effectuates the statute’s intent than Michigan Life’s. The purpose of § 2027(a)(ii), which is to protect individuals from an arbitrary denial of insurance coverage on the basis of certain characteristics, would be vitiated if an insurer can refuse coverage merely on the showing of a higher incidence of loss experience. Further, reading § 2027 as a whole, Michigan Life’s interpretation would seriously undermine the protection from arbitrary rate differentials because of residence, age, handicap, lawful occupation, or location of the risk as provided by subparagraph (c), since the insurer could refuse coverage altogether merely because a protected classification is more expensive to insure. Finally, Michigan Life’s interpretation would result in unfair competition with insurance companies that write all coverage at a uniform rate. Sanctioning an insurer’s refusal to underwrite all but the premier risks would put those who insure groups with the protected characteristics at a competitive disadvantage and could result in the unavailability of coverage to these groups. This result surely cannot embody the Legislature’s intent in enacting § 2027(a)(ii).
Not only would the commissioner’s interpretation best effectuate the protections of this provision, Michigan Life’s interpretation would render the regulatory scheme null and void. Any insurer could collect data on most protected classifications which they wished not to write and show a statistical correlation between that group and some other group. Two recent opinions from this Court support our holding. In American Way Service Corp v Comm’r of Ins, 113 Mich App 423; 317 NW2d 870 (1982), the insurer refused to offer credit life insurance to individuals within the 55 to 64 year age group. While the opinion does not expressly interpret § 2027(a)(ii), it apparently rejects the argument that a mere higher risk of loss establishes the requisite reasonable relationship, as the Court found that the insurer’s refusal to insure was not reasonably related to the extent of risk, notwithstanding the clear correlation between age and the extent of risk. See, Baker and Ettinger, Insurance Law, 27 Wayne L Rev 827, 847 (1981). Moreover, the Court explicitly rejected Michigan Life’s inter pretation of § 2027(a)(ii) in DAIIE v Comm’r of Ins, 119 Mich App 113; 326 NW2d 444 (1982). There, the insurer refused to offer automobile insurance to people under age 21 unless they resided with a parent or guardian who at the time of application was either already insured or about to become insured with the company. This Court upheld the commissioner’s finding that the insurer was in violation of § 2027(a)(ii).
"Petitioner’s [the insurer’s] interpretation ignores the statutory language stating that an insurance company may refuse to insure a group only if the cost is unreasonable. The mere fact that one group is more expensive to insure than another does not preclude fixing a reasonable rate. This point is especially pertinent because car drivers must carry insurance to drive in this state.” 119 Mich App 120.
Accordingly, we conclude that the lower court’s order reversing the order of the insurance commissioner must be reversed.
Several other issues raised by the parties warrant discussion. The commissioner contends that the circuit court applied an improper standard of review in evaluating factual findings. The circuit court stated that its review of the commissioner’s factual findings was de novo on the record and review of the commissioner’s legal conclusions was to be made in accordance with the applicable provisions of the Administrative Procedures Act, MCL 24.306; MSA 3.560(206). We note that any misstatement of the standard would not require reversal since the court did not scrutinize the commissioner’s factual determinations. Rather, the court found that the commissioner’s interpretation of § 2027(a)(ii) was correct, a question of law. Nev ertheless, we find the court properly stated the standard for reviewing questions of fact.
While generally, administrative decisions are to be affirmed if supported by material, competent, and substantial evidence, Const 1963, art 6, § 28; MCL 24.306(d); MSA 3.560(206)(d), the Insurance Code sets out a more lenient standard for reviewing the commissioner’s factual determinations under the Uniform Trade Practices Act provisions. MCL 500.2041; MSA 24.12041 provides:
"(1) Any order or decision of the commissioner under this uniform trade practices act shall be subject to review as provided in section 244. The ñndings of fact of the commissioner, and any modiñcation thereof as provided for in subsection (2) of this section, if supported by the preponderance of the evidence, shall be conclusive.
"(2) To the extent that the order of the commissioner is affirmed, the court shall thereupon issue its own order commanding obedience to the terms of such order of the commissioner. If either party shall apply to the court for leave to adduce additional evidence, and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the commissioner, the court may order such additional evidence to be taken before the commissioner and to be adduced upon the hearing in such manner and upon such terms and conditions as to the court may seem proper. The commissioner may modify his findings of fact, or make new findings by reason of the additional evidence so taken, and he shall file such modified or new findings, which, if supported by the preponderance of the evidence, shall be conclu sive, and his recommendation, if any, for the modification or setting aside of his original order, with the return of such additional evidence.” (Emphasis added.)
MCL 500.244; MSA 24.1244 provides in part:
"(3) The cause shall be heard before the said court as a civil case in chancery upon such transcript of the record and such additional evidence as may be offered by any of the parties at the hearing of said cause before the court.” (Emphasis added.)
Thus, the circuit court must review the cause as a civil case in chancery, evaluate the evidence on the record and any additional evidence presented to it, and accept the commissioner’s findings if supported by a preponderance of the evidence.
Michigan Life argues that the circuit court properly refused to apply the commissioner’s interpretation of § 2027(a)(ii), since due process requires that the agency give notice of its interpretation before holding the industry to it. However, promulgation of rules is not necessarily required before enforcement of a statute. An agency may announce new principles through adjudicative proceedings without violating the tenets of due process. DAIIE v Comm’r of Ins, supra. See, also, National Labor Relations Bd v Bell Aerospace Co Div of Textron, Inc, 416 US 267, 292-294; 94 S Ct 1757; 40 L Ed 2d 134 (1974); Securities & Exchange Comm v Chenery Corp, 332 US 194, 202-203; 67 S Ct 1575; 91 L Ed 1995 (1947). We also note that the commissioner’s opinion provides that, if requested, proofs would be reopened to determine whether properly calculated rates for miners would equal or exceed the amount of insurance and that no fine be levied.
Since the circuit court’s order is reversed, we need not address whether the court erred by holding that Michigan Life’s decision to refuse to offer mortgage disability insurance to all persons employed in Class B occupations, as well as miners, was legal.
We have reviewed Michigan Life’s remaining claims of error and find them without merit. The Insurance Bureau’s inaction against other insurance companies which may have violated § 2027 does not imply that its action against Michigan Life is unlawful or that it will not prosecute others at a later time. Nor should the action be dismissed because the commissioner’s final order was not issued "within a reasonable period”, as required by MCL 24.285; MSA 3.560(185), since, even if unreasonable, Michigan Life has failed to demonstrate any prejudice. Finally, we reject Michigan Life’s claim that this action should be dismissed because the commissioner has failed to identify any individuals denied mortgage disability insurance. Michigan Life’s witnesses admitted at the hearing that it was its policy to refuse mortgage disability insurance to persons employed in Class B occupations. Thus, it can be reasonably inferred that some individuals may have been denied mortgage disability insurance because of their lawful occupation as miners. Indeed, it is doubtful that a person denied mortgage disability insurance would report the claim, especially if the individual obtained such insurance elsewhere. See American Way Service Corp, supra.
The circuit court’s order reversing the commissioner’s order is reversed. Costs to appellant.
Cynar, J., concurred.
Michigan Life’s risk categories are divided into four classes: Occupations in Class AAA are considered to be the least hazardous and include most "white collar” workers; Class AA includes white collar workers whose occupations are subject to certain factors making them more hazardous than Class AAA; Class A occupations are considered more hazardous than those in Class AA and includes industrial workers using machinery; occupations in Class B are considered the most hazardous of the four groups and includes workers using heavy machinery and unskilled laborers.
Mr. Johnson divided the risk of loss for miners into that for surface miners and underground miners. While underground mining is more hazardous than surface mining and the premium charged underground miners would approach the monthly mortgage payment, ranging from $120 to $225 on a $300 monthly mortgage, the development of a reasonable premium rate for underground miners appears irrelevant since the record indicates that there are no underground coal mines in Michigan.
Const 1963, art 6, § 28, states that the review, as a minimum, shall include whether the administrative determination is supported by competent, material, and substantial evidence on the whole record. MCL 24.306(d); MSA 3.560(206)(d) provides that except when a statute or constitution provides for a different scope of review, the court shall set aside an agency determination if not supported by competent, material, and substantial evidence. | [
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Cynar, J.
Defendants appeal by leave granted on October 28, 1980, from an adverse determination by the Workers’ Compensation Appeal Board (WCAB).
Plaintiff first filed his petition for hearing with the Bureau of Workers’ Disability Compensation about March 8, 1971, regarding an injury to his back which allegedly occurred when plaintiff slipped while pushing an aluminum bar which weighed over 300 pounds. Defendants made voluntary payments from January 28, 1971, the date of the alleged injury, through March 8, 1973. Plaintiff returned to favored work for Copper & Brass Sales, Inc. (Copper & Brass), in March, 1973, but left after two weeks, alleging that he could not do the work. Hearings were held before the hearing referee on January 22, March 26, and May 29, 1974, and on February 20, 1975. The hearing referee issued a decision on March 17, 1976, finding plaintiff ineligible for compensation. Plaintiff appealed to the WCAB. The WCAB issued an opinion on review on January 10, 1980, which reversed the decision of the hearing referee. The WCAB issued an order pursuant to its opinion on January 10, 1980.
I
Defendants argue that the WCAB’s finding that plaintiff did not recover from his stipulated work injury of January 20, 1971, was not supported by competent, substantial and material evidence. Defendants claim to have made a strong showing that plaintiff had recovered from his stipulated, work-related disability.
The exact words of the WCAB opinion are: "Finally, there was no showing that plaintiff ever recovered from his stipulated, work-related disability.”
Findings of fact by the WCAB are conclusive in the absence of fraud, Const 1963, art 6, § 28; MCL 418.861; MSA 17.237(861); Derwinski v Eureka Tire Co, 407 Mich 469, 481-482; 286 NW2d 672 (1979), if there is any competent evidence in the record to support the findings of fact made by the appeal board. Aquilina v General Motors Corp, 403 Mich 206, 213; 267 NW2d 923 (1978). See, also, Butler v Dura Corp, 105 Mich App 508, 512; 307 NW2d 83 (1981); Gibbs v General Motors Corp, 114 Mich App 1, 3-4; 318 NW2d 565 (1982).
Defendants contend that the evidence shows that plaintiff had recovered from the injury he sustained at Cooper & Brass. In support of their position, defendants state that on October 6, 1971, Dr. Max Newman examined plaintiff. On that date, Dr. Newman performed an electromyographic examination. The examination showed that plaintiff presented evidence of "polyphasic unit activity of the peroneal nerve on the right”, i.e., the EMG was positive and therefore indicative of an injury. On March 14, 1973, Dr. Larry Blau performed another electromyogram on plaintiff. Those results were negative. Defendants also contend their position is substantiated by the testimony of Dr. Newman that patients can spontaneously recover from the condition that plaintiff suffered from, i.e., probable nerve root irritation or compression syndrome at the level of L-5 neural segment on the right. Further, defendants point out that plaintiff worked after the date of the stipulated injury, first for Community News and then at a bar that he owned and operated. These positions required some twisting, lifting and bending.
Defendants contend that the combination of the expert testimony that a patient can spontaneously recover from the type of condition that plaintiff was alleged to have, the subsequent negative electromyogram and plaintiff’s subsequent work history constituted a substantial showing that plaintiff had recovered. While this evidence would not require the WCAB to find as a fact that plaintiff had recovered from his stipulated, work-related disability, it would appear to constitute some showing that he had done so.
There is, however, also evidence that plaintiff did not recover from his back injury. Plaintiff testified that he left his positions as a cab driver and as a gas station attendant because of pain. Dr. Newman testified that an EMG is only 80% accurate and does not indicate problems such as a bulging disc. Dr. Colah, a neurosurgeon, performed a laminectomy in the area of the lumbar-four and lumbar-five and found a bulging disc. An EMG by Dr. Colah had produced normal results.
It may be that defendants argue a point of semantics, i.e., arguing that the WCAB’s finding was erroneous because defendants had made a "showing” that plaintiff had recovered. That is simply not the test. A claimant need establish causality by a preponderance of the evidence. Whether the evidence persuades and, therefore, preponderates is a judgment confided to the WCAB with which a court may interfere only when convinced that there is no evidence to support that judgment. Kostamo v Marquette Iron Mining Co, 405 Mich 105, 135-136; 274 NW2d 411 (1979); Aquilina, supra. The test is whether the WCAB’s finding is supported by any competent evidence. A review of the evidence indicates the WCAB’s finding is so supported, despite the fact that the WCAB might better have used an expression that it "found” that plaintiff had not recovered as opposed to its statement that there was "no showing” of a recovery.
II
In Dressler v Grand Rapids Die Casting Corp, 402 Mich 243, 253-254; 262 NW2d 629 (1978), the Court considered an aggravation of an injury which involved successive employers:
"' "The Massachusetts-Michigan rule in successive-injury cases is to place full liability upon the carrier covering the risk at the time of the most recent injury that bears a causal relation to the disability.
"' "If the second injury takes the form merely of a recurrence of the first, and if the second incident does not contribute even slightly to the causation of the disabling condition, the insurer on the risk at the time of the original injury remains liable for the second. In this class would fall most of the cases discussed in the section on range of consequences in which a second injury occurred as the direct result of the first, as when claimant falls because of his crutches which his first injury requires him to use. This group also includes the kind of case in which a man has suffered a back strain, followed by a period of work with continuing symptoms indicating that the original condition persists, and culminating in a second period of disability precipitated by some lift or exertion.
" ' "On the other hand, if the second incident contributes independently to the injury, the second insurer is solely liable, even if the injury would have been much less severe in the absence of the prior condition, and even if the prior injury contributed the major part to the final condition. This is consistent with the general principle of the compensability of the aggravation of a preexisting condition.” 3 Larson, Workmen’s Compensation Law, § 95.12, pp 508.130-508.133.’ Mullins v Dura Corp, supra, 46 Mich App 52, 55-56; 207 NW2d 404 (1973), lv den 392 Mich 792 (1974). (Emphasis changed.)” (Emphasis of back example added.)
In Dressler, the WCAB found that plaintiffs subsequent employment with defendant aggravated his preexisting back condition and injury to the point of total disability on and after his last day of work with defendant. Dressler, p 254. The Court found competent evidence to support the WCAB’s finding and affirmed, on the basis of this and another issue, the WCAB’s award of compensation chargeable to defendant. In effect, the Court held that plaintiffs subsequent employment with defendant contributed independently to plaintiffs disability and, therefore, held defendant responsible for payments to plaintiff. In the instant case, the WCAB specifically found that "other nonwork-related events contributed to plaintiffs current disability”, i.e., events not related to employment with Copper & Brass. Furthermore, the record shows that the events in question occurred subsequent to the employment-related disability.
The WCAB cited no authority for its statement of the law. In Adkins v Rives Plating Corp, 338 Mich 265; 61 NW2d 117 (1953), plaintiff had fractured his left arm while in the employment of defendant. Later, he fractured that arm again when he was involved in an accident while riding a bicycle. The Supreme Court held that plaintiff could not recover for the second injury.
"The original injury may or may not have been a contributing factor in that it rendered plaintiff susceptible to the second injury, but it cannot be said to be the proximate cause of the disability resulting from the second injury. The proximate cause of the second injury was the riding of a bicycle by Adkins which exposed him to the hazards entailed thereby. He certainly was not engaged in his master’s employ on the Sunday in question; nor can we discern any accidental or fortuitous circumstance present upon which a causal relationship between the two injuries may be predicated. There was nothing in the nature of Adkins’ employment which required him to expose himself to such a hazard, and common sense would have dictated that, in his condition, he refrain from such exposure.” Adkins, pp 270-271.
Adkins refutes the WCAB’s stated position on liability in the case of successive injuries. We note that such a case must be distinguished from one involving a preexisting injury or weakness which is aggravated by subsequent employment with the employer as in Deziel v Difco Laboratories, Inc (After Remand), 403 Mich 1, 10; 268 NW2d 1 (1978).
The WCAB held that the law in Michigan is such that an employer is liable for benefits if an injury is sustained by an employee while in the employ of the defendant-employer and that injury contributes to the employee disability, regardless of how trivial that contribution is and regardless of the occurrence of subsequent nonwork-related activities that contribute to the disability.
The exact words of the WCAB opinion are:
"There is no question that numerous other nonworkrelated events contributed to plaintiffs current disability. The law is such, however, that if plaintiffs work contributed to plaintiffs present disability, then it is compensable however trivial that contribution.”
We not only find this statement of the law to be erroneous but also lacking in clarity as support for the conclusions reached.
"In a workers’ compensation case, '[t]he claimant must show a reasonable relation of cause and effect between work and injury. Other possible or probable causes of injury do not have to be excluded beyond doubt’. Kepsel v McCready & Sons, 345 Mich 335, 343-344; 76 NW2d 30 (1956). The employment need not be the sole cause; it is enough if it contributes to the injury. See Swanson v Oliver Iron Mining Co, 266 Mich 121, 122; 253 NW 239 (1934).” (Footnote omitted.) Kostamo, supra, p 126.
We are not able from the WCAB’s opinion to determine whether the present complained-of back condition is work-related to the defendant-employer, to the employment at the Community News, to work at plaintiffs bar or to some other cause. We cannot discharge our appellate responsibility unless the WCAB articulates its findings of fact, showing a reasonable relation of cause and effect between work and injury.
This matter is remanded to the WCAB for further proceedings in accordance with this opinion. We retain no jurisdiction. | [
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M. F. Cavanagh, J.
Plaintiff, Frank Schipani, an employee of defendant Ford Motor Company, filed a complaint against defendant which alleged a breach of contract, age discrimination, malicious and bad faith demotion, impairment of prospective economic opportunity and failure to objectively evaluate plaintiff’s performance.
Defendant responded by filing a motion for accelerated judgment and for summary judgment dismissing plaintiff’s complaint. The trial court denied defendant’s motion in toto and defendant now appeals by leave of this Court.
Plaintiff commenced employment with Ford Motor Company on December 8, 1948, and was periodically promoted, eventually to the position of Superintendent, Production, Frame Plant in 1969. On February 4, 1952, plaintiff signed a written employment agreement with Ford, providing:
"I understand that my employment is not for any definite term, and may be terminated at any time, without advance notice by either myself or Ford Motor Company * *
Plaintiff’s job performance was evaluated on an annual basis. On November 4, 1977, plaintiff was suspended and thereafter went on medical leave. Effective December 1, 1977, plaintiff was reassigned to a different job classification at a lower salary grade. There is a question whether plaintiff’s position as Superintendent of Production was filled by a person or persons younger than plaintiff. Plaintiff was age 53 at the time of reassignment.
Plaintiff’s Count I alleges breach of an implied contract to employ plaintiff until he reached age 65 arising from defendant’s literature, policy and practices. Defendant moved for accelerated judgment claiming that the action was barred by the statute of frauds. The court denied defendant’s motion on the basis of three considerations: (1) the statute of frauds is properly invoked to prevent one from "fraudulently constructing” contracts, and plaintiff here "is clearly not fraudulently constructing a contract in an attempt to bilk defendant”; (2) further discovery was necessary; and (3) the exception of part performance might be invoked to avoid the application of the statute of frauds.
The statute of frauds is not only invoked to prevent fraudulent construction of a written contract but also to prevent disputes over what provisions were included in an oral contract. Plaintiff bases his case on both oral and written contracts.
The only written contract of employment presented in this case specifically provided that the employment was terminable at will. Such contracts are generally held to be indefinite hirings, terminable at the will of either party "in the absence of distinguishing features of provisions or a consideration in addition to the services to be rendered”. Lynas v Maxwell Farms, 279 Mich 684, 687; 273 NW 315 (1937), Adolph v Cookware Co of America, 283 Mich 561, 568; 278 NW 687 (1938), Hawthorne v Metropolitan Life Ins Co, 285 Mich 329, 335; 280 NW 777 (1938), Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980).
Under a contract terminable at will, an employee may be terminated with or without cause. Hernden v Consumers Power Co, 72 Mich App 349, 356; 249 NW2d 419 (1976). Even an arbitrary and capricious discharge is not actionable under a contract terminable at will. Hernden v Consumers Power Co, supra. However, the Supreme Court in Toussaint stated:
"Employers are most assuredly free to enter into employment contracts terminable at will without assigning cause. We hold only that an employer’s express agreement to terminate only for cause, or statements of company policy and procedure to that effect, can give rise to rights enforceable in contract.” Toussaint, supra, 610.
Here, as in Toussaint, it is for the trier of fact to determine whether the contract was not terminable at will because of the defendant employer’s oral or written assurances.
Plaintiff contends that an oral agreement to employ plaintiff until age 65 served to bind defendant. The alleged oral agreement is unenforceable because employment contracts for a term exceeding one year come within the statute of frauds. McMath v Ford Motor Co, 77 Mich App 721, 724; 259 NW2d 140 (1977). A contract which is not, by any possibility, capable of being performed within a year is within the statute. Rowe v Noren Pattern & Foundry Co, 91 Mich App 254; 283 NW2d 713 (1979). Under the statute, the agreement is void unless in writing and signed by the party to be charged therewith. MCL 566.132(1); MSA 26.922(1), McMath, supra, 724.
The doctrine of partial performance, relied upon by the trial court to avoid the application of the statute of frauds, is available in land transactions but is inapplicable to employment contracts. McMath, supra, 725.
Plaintiff argued that defendant should be es-topped from raising a statute of frauds defense. The elements of equitable or promissory estoppel are: (1) a promise; (2) that the promisor should reasonably have expected to induce action of a definite and substantial character on the part of the promisee; (3) which in fact produced reliance or forbearance of that nature; and (4) in circumstances such that the promise must be enforced if injustice is to be avoided. McMath v Ford Motor Co, supra, 725.
Plaintiff alleges that, based on "Defendant Company’s literature, policy, and practices, Plaintiff was led to believe that he would be employed until the normal retirement age of sixty-vie [sic] (65)”. The written contract on which plaintiff seeks to rely contains the previously quoted disclaimer.
The Michigan Supreme Court in Toussaint v Blue Cross & Blue Shield of Michigan, supra, 619, held that:
"An employer who establishes no personnel policies instills no reasonable expectations of performance. Employers can make known to their employees that personnel policies are subject to unilateral changes by the employer. Employees would then have no legitimate expectation that any particular policy will continue to remain in force.”
Plaintiff in Toussaint relied on oral representations and statements in the employer’s policy manuals assuring that employees would be dismissed for "cause” only, asserting that his dismissal was not for "cause”. In treating the policy manual assertions of Blue Cross as sufficient to give rise to contractual rights in Toussaint, the Court found that whether there was "cause” sufficient to justify dismissal was a question for the trier of fact.
The instant case is distinguishable from Toussaint because the presence of disclaimers in the policy handbooks may serve to negate the reliance on plaintiff’s part which would be justified to either give rise to a contract or give effect to the doctrine of promissory estoppel. The Supreme Court’s decision in Toussaint, supra, indicates that where such questions exist, the trial judge acts properly in denying a motion for accelerated judgment and allowing the case to be presented to the jury.
The Court of Appeals in Kari v General Motors Corp, 79 Mich App 93; 261 NW2d 222 (1977), held that where the defendant employer specifically stated that its separation and pay schedule and conditions, contained in its handbook, were not intended to establish a contractual relationship, "[a]n employee reading this language and that of the general disclaimer at the end of the booklet should realize that further negotiations, and not merely the acceptance of employment with General Motors, are necessary to create a contract for severance pay”. However, the Supreme Court reversed Kari v General Motors Corp, supra, by order in lieu of leave to appeal, 402 Mich 926 (1978), remanding the action to the trial court to consider all of plaintiff’s claims including claims raised by plaintiff’s interpretation of the handbook and possible oral promises to award the separation allowance. This remand may indicate the Supreme Court’s belief that under appropriate circumstances, oral promises may negate the effect of disclaimers which are intended to absolve employers from liability for policies presented in handbooks or other employer literature.
Promissory estoppel requires plaintiff to show that his reliance was definite and substantial. In Pursell v Wolverine-Pentronix, Inc, 44 Mich App 416; 205 NW2d 504 (1973), plaintiff had been employed by Dow Chemical until he was 59 years old as the manager of one of its plants. The plant was acquired by defendant. The defendant offered to keep the plaintiff on as general manager, orally promising to employ him as vice-president until he reached retirement at age 65. In reliance on these promises, the plaintiff severed his employment with Dow and accepted the position offered by the defendant. A few years later defendant terminated plaintiffs employment. Pursell, supra, 417-418. This Court found that the giving up of his prior employment and the substantial retirement benefits that accompanied it was sufficient reliance to estop the defendant from raising the statute of frauds as a defense. Pursell, supra, 419, 420. Likewise, in Rowe v Noren Pattern & Foundry Co, supra, 257, the Court found that "plaintiffs giving up of his prior job where he has been employed for 13-1/2 years, and his soon-to-vest retirement benefits constituted a reliance sufficient to circumvent the statute of frauds, at least by raising a question of fact to be resolved by the jury”.
In the instant case, plaintiff alleged that, prior to his working for management, he had worked three years for defendant as a union member. By accepting defendant’s offer of clerk, plaintiff gave up the security of the union. This, too, would appear to raise at least a question of fact to be determined by the jury. Nor can it be said that defendant should not have reasonably expected to induce such a reliance.
Finally, the handbooks’ allusions to the fairness of defendant in any termination or defendant’s oral promises, or both, may be required to be enforced in order to prevent injustice.
For the above stated reasons, the trial court’s denial of defendant’s motion for accelerated judgment based on plaintiffs claim of an implied contract is affirmed.
Plaintiffs Count II alleges that plaintiff was replaced in his position as a superintendent by younger men and that plaintiff was discriminated against on account of his age in violation of Michigan Public Act 453 of 1976; MCL 37.2101; MSA 3.548(101), known as the Elliott-Larsen Civil Rights Act.
Defendant moved for summary judgment asserting that there was no issue of material fact because plaintiff was actually replaced by someone nearly his own age.
GCR 117.2(3) states that a moving party is entitled to summary judgment when:
"(3) that except as to the amount of damages there is no genuine issue as to any material fact, and the moving party is therefore entitled to judgment as a matter of law.” GCR 1963, 117.2(3).
With regard to this rule, the Michigan Supreme Court has commented:
"The courts are liberal in finding that a 'genuine issue’ does indeed exist. As Honigman & Hawkins correctly comments, (1) the court will 'give the benefit of any reasonable doubt to the opposing party’ and (2) 'the court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deñciency which cannot be overcome.’ (Emphasis added.)” Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973).
Section 202 of the Elliott-Larsen Civil Rights Act provides in pertinent part:
"Sec. 202. (1) An employer shall not:
"(a) Fail or refuse to hire, or recruit, or discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condi tion, or privilege of employment, because of * * * age.” MCL 37.2202(l)(a); MSA 3.548(202)(l)(a).
This statute has been held to create statutory civil rights which may be vindicated by means of a private cause of action. Holmes v Haughton Elevator Co, 404 Mich 36; 272 NW2d 550 (1978).
Because there are no Michigan cases which delineate what constitutes a prima facie case of age discrimination, it is appropriate to examine the consideration given race discrimination by the appellate courts of this state. This is reasonable because the same statute prohibits both age and race discrimination. There appear to be at least two types of the latter. (1) Disparate treatment. To make a prima facie showing of discrimination, the one alleging disparate treatment must show that he was a member of the class entitled to protection under the act and that, for the same or similar conduct, he was treated differently than one who was a member of a different race. Pompey v General Motors Corp, 385 Mich 537, 542, 549; 189 NW2d 243 (1971). (2) Intentional discrimination. Here, plaintiff must show that he was a member of the affected class, that he was discharged, and that the person discharging him was predisposed to discriminate against persons in the affected class and had actually acted on that disposition in discharging him. Civil Rights Comm v Chrysler Corp, 80 Mich App 368, 373, fn 3; 263 NW2d 376 (1977).
In pertinent part, plaintiff’s Count II stated as follows:
"11. That Plaintiff was replaced in his position as a Superintendent without offer or transfer compatible with his age, seniority, and work experience, by younger men to wit: Bennie Tucker and Donald Martin.
"12. That by reason of these premises, Plaintiff has been discriminated against on account of his age in violation of Michigan law, to wit: Michigan Public Act 453 of 1976.”
Plaintiff is not alleging disparate treatment. His allegation that he was replaced by younger men indicates that he was discriminated against because of his age; in other words, that the person discharging him was predisposed against plaintiff because of his age and acted on that predisposition.
Defendant insists that plaintiff was only temporarily replaced by two men younger than he. Shortly thereafter, he was permanently replaced by a Gil Miller, a man approximately plaintiff’s age. While this tends to undercut plaintiff’s assertion of age discrimination, it is not dispositive. It cannot be said that, because plaintiff was not permanently replaced by someone younger than he, it is no longer a question of fact whether defendant discriminated against plaintiff because of age. See Laugesen v The Anaconda Company, 510 F2d 307 (CA 6, 1975).
Moreover, there is a question of material fact as to whether Gil Miller was plaintiff’s permanent replacement since he occupied the position for approximately one month after which time a reorganization occurred and the position was apparently occupied by Bennie Tucker or John Hayes, both of whom are younger than plaintiff.
Since a question of material fact remained, the lower court properly denied defendant’s motion for summary judgment as to Count II.
Plaintiff’s Count III alleges that "defendant’s demotion of plaintiff was malicious and in bad faith and defendant had a duty to refrain from maliciously and in bad faith demoting and refusing to transfer plaintiff”. Count IV alleges that because of plaintiffs age and the unjust demotion, his employment opportunities are limited and that "Defendant’s unwarranted, malicious and bad faith demotion and failure to transfer Plaintiff has interfered with and impaired Plaintiff’s opportunities for securing future employment in the field of work that Plaintiff has devoted his adult working life to”.
In its motion for summary judgment, defendant argued that plaintiff had failed to state a claim upon which relief could be granted. The lower court denied defendant’s motion stating:
"This court must recognize the duty of an employer not to discharge or harass an employee based on characteristics which are immutable. One cannot change one’s color, one’s sex, nor one’s age. This court holds that, upon a proper showing of fact, plaintiff’s allegations make out a case under our statutes.”
We find that the defendant’s motion for summary judgment should have been granted as regards to plaintiff’s Count III alleging malicious and bad faith demotion and failure to transfer and Count IV alleging impairment of prospective economic opportunity.
Regarding plaintiff’s Count III, a contract for indefinite employment has generally been held to be terminable at will. Lynas v Maxwell Farms, supra. This Court has stated that "[s]uch a contract is not violated even by an arbitrary or capricious discharge”. Hernden v Consumers Power Co, supra, 356. However, this Court has intervened where "the reason for the discharge is an intention on the part of the employer to contravene the public policy of this state”. Sventko v The Kroger Co, 69 Mich App 644, 647; 245 NW2d 151 (1976). The facts of that case are clearly distinguishable from the ones in the case at bar. In Sventko, supra, plaintiff alleged that she had been terminated as retaliation for her filing a workmen’s compensation claim. Sventko, 646. The Court conceded that the workmen’s compensation statute did not directly prohibit a retaliatory discharge by employers. Sventko, 647. But the Court noted that the statute indicated a specific legislative policy the fulfillment of which an employer should not be allowed to discourage. Sventko, 647-648. In a concurring opinion, Judge Allen noted that appellate courts have used this new exception to termination at will sparingly, "declining to apply it in corporate management disputes or in other situations where no clear mandate of public policy is involved”. (Emphasis supplied.) Sventko, 651. He approved of its application in the case before the Court because the case "concerns a long standing statute whose clear purpose * * * would obviously be violated”. Sventko, 652.
Subsequent decisions by this Court have continued to locate some legislative enactment before finding a breach of public policy with regard to such discharges. Trombetta v Detroit T & I R Co, 81 Mich App 489; 265 NW2d 385 (1978), lv den 403 Mich 855 (1978) (where plaintiff alleged his discharge was occasioned by his refusal to falsify pollution control reports required by state law), Hernden v Consumers Power Co, supra (where plaintiff alleged his discharge was based on his age in contravention of the then Michigan State Fair Employment Practices Act, MCL 423.301 et seq.; MSA 17.458[1] et seq.). It would seem that the discharge must contravene "some settled public policy”. Milligan v The Union Corp, 87 Mich App 179; 274 NW2d 10 (1978). See Cortez v Ford Motor Co, 349 Mich 108, 112; 84 NW2d 523 (1957), Carry v Consumers Power Co, 64 Mich App 292, 296, fn 1; 235 NW2d 765 (1975).
If, however, plaintiffs contract with the defendant was not terminable at will then his claim under Count III (malicious and bad faith demotion) merely restates his claim under Count I (breach of contract) and accordingly it should have been struck.
The facts contained in plaintiff’s Count IV appear to state additional damages resulting from defendant’s breach of contract with plaintiff. As such, it is properly a part of plaintiffs Count I. Insofar as it states an independent action in tort, it also fails to state a claim upon which relief can be granted. Plaintiff is claiming interference with prospective employment opportunities. This cause of action may be found in the Restatement of Torts, 2d, § 766B, p 20:
"One who intentionally and improperly interferes with another’s prospective contractual relation (except a contract to marry) is subject to liability to the other for the pecuniary harm resulting from loss of the benefits of the relation, whether the interference consists of
"(a) inducing or otherwise causing a third person not to enter into or continue the prospective relation or
"(b) preventing the other from acquiring or continuing the prospective relation.”
This tort would include the interference with the prospect of obtaining employment. Restatement of Torts, 2d, supra, Comment c, p 22. Plaintiff can show the tort only if he also prevails regarding Count I.
In addition, courts in other jurisdictions, which have considered the matter, have looked to see whether the expectation of economic advantage allegedly interfered with was a reasonable one, O’Fallon Development Co, Inc v City of O’Fallon, 43 Ill App 3d 348; 2 Ill Dec 6; 356 NE2d 1293 (1976), Parkway Bank & Trust Co v City of Darien, 43 Ill App 3d 400; 2 Ill Dec 234; 357 NE2d 211 (1976), Behrend v Bell Telephone Co, 242 Pa Super 47; 363 A2d 1152 (1976). Of importance is whether the plaintiff alleges interference with specific third parties or an identifiable prospective class of third persons. Parkway Bank & Trust Co v City of Darien, supra. In the instant case, plaintiff failed to indicate what, if any, speciñc and reasonable prospective economic advantage was interfered with. Like the Court in Behrend, supra, this Court could conclude that plaintiff failed to make a proper showing of what reasonable economic advantage was lost:
"The tort of intentional interference with business requires, as a basis, that a business relationship be proved with some degree of specificity, at least to the point that future profit be a realistic expectation and not merely wishful thinking. It is true that where a prospective advantage is alleged, the plaintiff need not demonstrate a guaranteed relationship because 'anything that is prospective in nature is necessarily uncertain. We are not here dealing with certainties, but with reasonable likelihood or probability. This must be something more than a mere hope or the innate optimism of the salesman.’
"As defined by the courts in this Commonwealth, the tort contemplates a relationship, prospective or existing, of some substance, some particularity, before an inference can arise as to its value to the plaintiff and the defendant’s responsibility for its loss.” (Citations omitted.) Behrend v Bell Telephone Co, supra, 62.
Because plaintiff failed to assert a specific and reasonable economic advantage that was injured by defendant’s actions, plaintiff failed to assert a claim upon which relief may be granted. Defendant’s motion for summary judgment as to Count IV should be granted.
Plaintiff’s fifth count alleges that defendant periodically reviewed plaintiff’s job performance and so had a duty to do so "in an objective manner” and, by not evaluating plaintiff in an objective manner, plaintiff was thereby denied placement on defendant’s list which would have assured a promotion.
Defendant moved for summary judgment as to Count V because of plaintiff’s failure to state a claim upon which relief could be granted. The lower court denied defendant’s motion. The lower court’s reason for the denial was that even though the court would not impose a duty to evaluate plaintiff’s performance on defendant, "in fact, such evaluations were undertaken, and that the duty involved was one to undertake to do the evaluations fairly, and in a manner which would not interfere with plaintiff’s opportunities. Defendant’s claim that there was no duty to make evaluations is obviated by the fact that such evaluations were undertaken, and it is their character and fairness that is under attack.”
In Hart v Ludwig, 347 Mich 559, 564; 79 NW2d 895 (1956), the Michigan Supreme Court cited the following language with approval:
"The law imposes an obligation upon everyone who attempts to do anything, even gratuitously, for another, to exercise some degree of care and skill in the performance of what he has undertaken, for nonperformance of which duty an action lies.”
This duty arises only where defendant attempts to do something, even gratuitously, for another. We find that Ford’s evaluation of plaintiff was for the benefit of both parties. A duty to exercise reasonable care may arise out of a contract. Hart v Ludwig, supra, 565, Clark v Dalman, 379 Mich 251, 261; 150 NW2d 755 (1967), Williams v Polgar, 391 Mich 6, 19; 215 NW2d 149 (1974), Crews v General Motors Corp, 400 Mich 208, 226; 253 NW2d 617 (1977) (Williams, J., for reversal). "[Accompanying every contract is a common-law duty to perform with ordinary care the thing agreed to be done, and * * * negligent performance constitutes a tort as well as a breach of contract.” Clark v Dalman, supra, 261, Williams v Polgar, supra, 19, Crews v General Motors Corp, supra, 226.
We find that where the trier of fact is allowed to determine whether the contract was terminable at will or whether defendant and plaintiff had a binding contract which was breached by defendant (Count I), the issues of defendant’s negligence in carrying out the evaluations of plaintiffs performance should also be determined by the trier of fact.
While plaintiff uses the terms "objective” and "subjective”, the lower court properly interpreted his claim to mean that the evaluations were unfair. The "subjective manner” of evaluation of which plaintiff complains is the equivalent of arbitrary and capricious conduct. Accordingly, if plaintiff has stated a proper claim in Count I (breach of employment contract), he has stated an adequate claim of negligence in Count V. Should the trial court determine that plaintiffs contract with Ford was terminable at will, so that even arbitrary and capricious termination is permissible, then defendant’s motion for summary judgment with regard to Count V should be granted.
Affirmed in part and reversed in part. No costs.
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Mackenzie, P.J.
After a jury trial, defendant was convicted of concealing or misrepresenting the identity of a motor vehicle with intent to mislead by altering the manufacturer’s serial number, MCL 750.415(2); MSA 28.647(2), and was sentenced to pay a fine of $300 and costs of $500 within 20 days or to be confined in the county jail for 120 days. Defendant appeals by right.
I
Defendant argues that the venue for the trial was erroneous. The prosecution must prove venue beyond a reasonable doubt. People v Plautz, 28 Mich App 621; 184 NW2d 761 (1970). MCL 762.8; MSA 28.851 provides:
"Whenever a felony consists or is the culmination of two or more acts done in the perpetration thereof, said felony may be prosecuted in any county in which any one of said acts was committed.”
Defendant was tried in Ottawa County. Defendant points to testimony that the number was changed at defendant’s direction in Wheeler, Michigan, which is apparently located in Gratiot County. However, testimony also indicated that the car with the altered number was consigned by defendant for sale at Grand Rapids Auto Auction. Misled by the auction’s name, defendant argues that the auction was located in Kent County; however, testimony unambiguously indicated that the auction was located in Ottawa County.
In People v Brooks, 405 Mich 225; 274 NW2d 430 (1979), the Court considered the circumstances under which a police officer could arrest a suspect for the misdemeanor of concealing or misrepresenting the identity of a motor vehicle by altering the manufacturer’s serial number, MCL 750.415(1); MSA 28.647(1). The felony of which defendant was convicted here contains all of the elements of the misdemeanor plus the additional element of an intent to mislead. The Court in Brooks pointed out that MCL 764.15(l)(a); MSA 28.874(l)(a) allows a police officer to make an arrest without a warrant for a misdemeanor committed in his presence. The Court held:
"To interpret the statute as requiring that the police must witness both the altering and the misrepresentation would for all practical purposes make the statute unenforceable. Persons engaged in the illicit business of stealing and disposing of cars for cash do not ply their trade in public. VIN numbers are not likely to be altered in broad daylight and in plain view. They are doctored in the secrecy of garages and 'chop shops’ throughout the state. Therefore, the physical act of alteration is rarely observed. Furthermore, stolen automobiles are extremely mobile and fungible. Within hours they can be driven to another state or country or they can be dissected into their component parts, irrevocably beyond identification or recovery.
"We believe the Legislature was aware of these facts when it made possession of a motor vehicle with an 'altered’ VIN 'prima facie’ evidence of commission of this crime. When, as here, a police officer observes the accomplished fact of physical alteration together with an act of misrepresentation, it would make little sense to send the possessor freely on his or her way. By the time a warrant could be obtained, the culprit and the car would be long gone.” (Footnote omitted.) 405 Mich 240-241.
Possession of a vehicle with an altered number is prima facie evidence of the felony at issue here as well as of the misdemeanor at issue in Brooks. MCL 750.415(3); MSA 28.647(3). Reading Brooks together with MCL 762.8; MSA 28.851, we conclude that a violation of MCL 750.415(2); MSA 28.647(2) may properly be prosecuted in a county where the alteration took place, in a county where defendant was in possession of a vehicle with an altered number, or in a county where an act of misrepresentation took place. An act of misrepresentation in Ottawa County took place when defendant consigned the vehicle with the altered number for sale at Grand Rapids Auto Auction.
Venue is a question of fact to be determined by the jury. People v Watson, 307 Mich 596, 603; 12 NW2d 476 (1943). Defendant argues that the trial court erred by failing to give instructions which would present the issue of venue for the jury’s consideration. However, defendant made no request for such instructions. At the close of the prosecution’s proofs, defendant moved for a directed verdict on the ground that the prosecution had failed to establish that Ottawa County was a proper venue, but defendant never suggested that the question of venue was properly for the jury, rather than the trial court, to resolve. The testimony relevant to the issue of venue was not in dispute; the parties’ disagreement was as to the applicable law. Under these circumstances, defendant has failed to preserve this issue for appellate review. See MCL 767.45; MSA 28.985, which provides in part:
"The indictment or information shall contain:
"3. That the offense was committed in the county or within the jurisdiction of the court. But no verdict shall be set aside or a new trial granted by reason of failure to prove that the offense was so committed unless the accused have raised such question before the case is submitted to the jury.”
See also People v Carey, 36 Mich App 640; 194 NW2d 93 (1971), and People v Morgan, 50 Mich App 288; 213 NW2d 276 (1973), rev’d on other grounds 400 Mich 527; 255 NW2d 603 (1977).
II
Defendant argues that the trial court erred by admitting testimony concerning a statement defendant made to Detective Sergeant Lloyd Stearns., the state police officer who investigated the case. The statement was held to have been voluntary after a hearing pursuant to People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). Transcripts of that hearing are not available, but the parties agree that the relevant testimony was repeated without variance at trial.
The only testimony concerning the circumstances under which the statement was made was that of Detective Sergeant Stearns. He testified that on August 1, 1979, he was at the Grand Rapids Auto Auction in connection with another investigation. At the request of an employee of the auction, he examined the car at issue here. The car was at the auction to be sold on behalf of Jerry’s Auto Sales of Wheeler, Michigan. Defendant later testified that he did business under that name. Detective Sergeant Stearns examined the car and determined that the vehicle identification number appeared to have been altered. At his request, the auction impounded the car.
Several days later, according to the detective sergeant, defendant called his office and left an urgent message for him to call defendant. When the detective sergeant returned the call, defendant explained that he wanted to get his car released for sale and requested a meeting. Defendant volunteered to bring his records connected with the car. The meeting was held as defendant requested and in the course of the meeting defendant made the statement at issue here. Defendant was not given the warnings required by Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), at the meeting.
Defendant, relying on People v Wallach, 110 Mich App 37, 48-50; 312 NW2d 387 (1981), argues that the failure to give him the Miranda warnings rendered his statement inadmissible since the investigation had focused on him before the state ment was made. In Beckwith v United States, 425 US 341, 345-347; 96 S Ct 1612; 48 L Ed 2d 1 (1976), and in Oregon v Mathiason, 429 US 492, 494-495; 97 S Ct 711; 50 L Ed 2d 714 (1977), the Court rejected the "focus test” and held that Miranda was applicable only to custodial interrogation. The Court pointed to its statement in Miranda, supra, p 444:
"By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.
The Wallach panel relied upon references to the "focus test” in People v Reed, 393 Mich 342, 357-360; 224 NW2d 867 (1975), cert den 422 US 1044; 95 S Ct 2660; 45 L Ed 2d 696 (1975), People v Ridley, 396 Mich 603, 606-609; 242 NW2d 402 (1976), and People v Brannan, 406 Mich 104, 118; 276 NW2d 14 (1979). However, state courts are not free to hold that federal constitutional law requires greater restrictions on police activity than required by the United States Supreme Court. Oregon v Hass, 420 US 714; 95 S Ct 1215; 43 L Ed 2d 570 (1975).
The Wallach panel acknowledged Beckwith, Mathiason, and Hass, but held that Reed, Ridley, and Brannan imposed the "focus test” as a matter of state constitutional law. However, as another panel pointed out in People v Martin, 78 Mich App 518, 522; 260 NW2d 869 (1977), the Michigan Supreme Court relied exclusively on federal constitutional authorities in adopting the "focus test”. In Ridley and Brannan the Court relied only upon Miranda and Reed. Reed relied upon Miranda and upon People v Wasson, 31 Mich App 638, 641-643; 188 NW2d 55 (1971), a decision based on federal constitutional authorities. No Michigan case has ever held that warnings analogous to those required by Miranda are required as a matter of state constitutional law. The references to the "focus test” in Ridley and Brannan were dicta, as an examination of the facts of those cases shows that the result would have been no different had the "custody test” been applied. In People v Paintman, 412 Mich 518, 528-529; 315 NW2d 418 (1982), the Court applied the "custody test” without reference to the state constitution or to Reed, Ridley or Brannan. In view of these authorities, we cannot say that the Michigan Supreme Court has ever displayed an intent to adopt the "focus test” as a matter of state constitutional law. We regard Wallach as incorrectly decided.
Because the evidence shows that defendant’s meeting with Detective Sergeant Stearns took place at defendant’s request, and because nothing in the record indicates that defendant’s freedom of action at the time of the meeting had been restrained in any significant way, we cannot say that defendant’s statement was the product of custodial interrogation. The trial court did not err by admitting testimony concerning the statement.
Ill
Defendant argues that the statute under which he was convicted was not in effect at the time he committed the crime. Defendant points to testimony that one element of the crime, alteration of the serial number, took place in early March, 1979. Conduct which took place before the effective date of a statute will not support a conviction under that statute. People v Ulysee Gibson, 71 Mich App 220, 223; 247 NW2d 357 (1976). MCL 750.415(2); MSA 28.647(2) was added to the statute by 1978 PA 494, which also contained the following provision:
"Section 2. This amendatory act shall not take effect unless House Bill No. 5371 (request no. 3562 '77) of the 1977 regular session of the legislature is enacted into law.
"This act is ordered to take immediate effect.”
1978 PA 494 was approved by the Governor on December 11, 1978.
House Bill No. 5371 became 1978 PA 507, which contained the following provision:
"Section 3. This amendatory act shall not take effect until July 1, 1979.”
1978 PA 507 was approved by the Governor on December 13, 1978. Defendant argues that the foregoing provisions, when read in conjunction, show that 1978 PA 494 took effect on July 1, 1979. The prosecution argues that 1978 PA 494 took effect on December 13, 1978, the day 1978 PA 507 was approved by the Governor. Defendant would read the phrase "is enacted into law” to mean "takes effect”, while the prosecution would read the phrase to mean "is passed by the Legislature and approved by the governor”.
Because it is presumed that the Legislature did not intend to do a useless thing, it is a rule of statutory construction that, if possible, every part of a statute must be given some effect. United Ins Co v Attorney General, 300 Mich 200, 203-204; 1 NW2d 510 (1942); Klopfenstein v Rohlfing, 356 Mich 197, 202; 96 NW2d 782 (1959). Statutes take effect in accordance with the procedures specified in Const 1963, art 4, § 27:
"No act shall take effect until the expiration of 90 days from the end of the session at which it was passed, but the legislature may give immediate effect to acts by a two-thirds vote of the members elected to and serving in each house.”
The 1978 regular session of the Legislature ended on December 29, 1978. Thus, acts to which the Legislature gave no effective date and which the Legislature did not order to take immediate effect took effect on March 30, 1979. If the Legislature intended 1978 PA 494 to take effect on July 1, 1979, the date on which 1978 PA 507 was to take effect, there was no need for the Legislature to specify that 1978 PA 494 take immediate effect. However, Const 1963, art 4, §27 required such a specification if the Legislature intended 1978 PA 494 to take effect on December 13, 1978.
1978 PA 507 added certain definitions to the vehicle code and revised certain provisions concerning vehicle registration, certificates of title, salvage certificates of title, dealer registration, and dealer records. Nothing in 1978 PA 507 is necessary for the operation of 1978 PA 494. In view of the absence of any need for 1978 PA 507 to be in effect when 1978 PA 494 took effect and in view of the Legislature’s specification that 1978 PA 494 take immediate effect, we conclude that the statute took effect on December 13, 1978.
IV
Defendant argues that the trial court erred by declining to instruct the jury on the misdemeanor of concealing or misrepresenting the identity of a motor vehicle without intent to mislead by altering the manufacturer’s serial number, MCL 750.415(1); MSA 28.647(1). The elements of the felony of which defendant was convicted differ from those of the misdemeanor only in that an intent to mislead is an element of the felony. The trial court correctly declined to instruct the jury on the misdemeanor in view of People v Chamblis, 395 Mich 408, 429; 236 NW2d 473 (1975):
"We are establishing a rule today, as a matter of policy, limiting the extent of compromise allowable to a jury in deciding whether to convict of a lesser included offense. In any case wherein the charged offense is punishable by incarceration for more than two years, the court, whether or not requested, may not instruct on lesser included offenses for which the maximum allowable incarceration period is one year or less.”
Defendant points out that, in People v Miller, 406 Mich 244; 277 NW2d 630 (1979), the Court modified the Chamblis rule to allow instruction on a lesser included misdemeanor if the value of the property involved is the only element which separates the misdemeanor from the felony charged. Defendant argues that the instant situation presents as compelling a case for an exception to the Chamblis rule as that presented in Miller. Whatever the merits of such an argument as a matter of policy, it entitles defendant to no relief here. Chamblis and Miller were exercises of the Supreme Court’s supervisory powers over practice and procedure in the courts of this state. This Court has no such powers. Moreover, while defendant’s arguments in Miller induced the Court to announce a prospective modification of the Chamblis rule, defendant Miller himself received no relief.
Affirmed.
"4 This is what we meant in Escobedo v Illinois, 378 US 478; 84 S Ct 1758; 12 L Ed 2d 977 (1964) when we spoke of an investigation which had focused on an accused.” | [
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Per Curiam.
Defendant appeals of right his April 9, 1979, guilty plea conviction of attempted prison escape. On May 23, 1979, he was sentenced to a term of six months to five years imprisonment, the sentence to run consecutively to the three to ten year sentence for breaking and entering that defendant was serving at the time of the attempted escape. We reverse.
Defendant first argues that the people lost jurisdiction to try the instant charge by their failure to bring this case to trial within 180 days as is required by the applicable statute. MCL 780.131; MSA 28.969(1). This statute requires:
"Whenever the department of corrections shall receive notice that there is pending in this state any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this state a criminal offense for which a prison sentence might be imposed upon conviction, such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate and a request for final disposition of such warrant, indictment, information or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail.”
Failure of a prosecutor to comply with this statute and bring an inmate to trial within 180 days after receiving notice of any untried warrant results in the loss of jurisdiction over the warrant by courts of this state. MCL 780.133; MSA 28.969(3).
Although this statute does not actually obligate a prosecutor to conclude, or even commence, trial within the 180-day time period, it does require the prosecutor to take good faith action on the case during that period of time and to proceed promptly thereafter in readying the case for trial. People v Castelli, 370 Mich 147; 121 NW2d 438 (1963). If a prosecutor takes such good faith action, jurisdiction over the case will not be lost unless the initial action is followed by inexcusable delay that evidences an intent not to bring the case to trial promptly. People v Hendershot, 357 Mich 300; 98 NW2d 568 (1959).
The record in this case indicates that defendant was arrested on the instant charge on February 6, 1978, was arraigned on it on May 16, 1978, but was not brought to trial on it until April 9, 1979. Even ignoring the 99-day delay between the time of defendant’s arrest and his arraignment, we find the record insufficient to warrant a finding of prosecutorial good faith that would justify the 329-day delay that occurred thereafter between the date of arraignment and trial. Further, we are not persuaded by the prosecutor’s argument that the protection of the 180-day rule does not extend to defendants in cases such as the instant one that involve an offense committed while the defendant is already imprisoned. In People v Moore, 96 Mich App 754; 293 NW2d 700 (1980), this Court specifically rejected any such contention, holding that inasmuch as MCL 780.131; MSA 28.969(1) does not distinguish between crimes committed prior to incarceration and those committed during it, any attempt to deny persons who commit crimes while imprisoned the protection of the 180-day rule violates the plain language of the statute, which admits of no such exception.
Therefore, because the prosecutor did not comply with the requirements of the 180-day rule, defendant’s conviction of attempted escape is vacated and that charge is dismissed. In light of our disposition of this issue we find it unnecessary to discuss or resolve the other issues raised by defendant in his appeal.
Reversed. | [
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Per Curiam.
Plaintiffs sued defendants for damages resulting from a beating which plaintiff Michael Coleman (hereinafter plaintiff) received in Durand, Michigan, on December 16, 1978. Subsequently, defaults were entered against defendants LaPorte and Barr for their failure to plead or otherwise defend against the action. A bench trial against defendant White commenced and at the close of plaintiffs’ proofs, White moved for a dismissal on the ground that the evidence was insufficient to establish tort liability on his part. The trial court’s opinion held that plaintiffs had no cause of action against defendants White and LaPorte but defendant Barr was found liable to plaintiffs for excessive force. Judgment awarding plaintiffs $51,631.33 in damages was entered; plaintiffs appeal as of right.
Plaintiffs first contend that the trial judge erred in granting judgment in favor of defendant LaPorte after a default had been entered against him and he did not appear at trial or move to set aside the default. We agree. GCR 1963, 520.1 provides in part that "[o]nce a default of any party has been duly filed or entered, that party shall not proceed with his case until his default has been set aside by the court in accordance with subrule 520.4”. Since a party cannot proceed with his case until the default is set aside, it is improper for the court to grant judgment in his behalf. See, e.g., Berger v Berkley, 87 Mich App 361; 275 NW2d 2 (1978), lv den 406 Mich 969 (1979). Accordingly, the judgment in favor of defendant LaPorte is reversed and the case remanded to allow plaintiffs to move for entry of a default judgment against LaPorte or other appropriate action. Berger, supra, 367, 377-378.
Plaintiffs also contend that the trial court erred in holding that plaintiff Michael Coleman was the aggressor in the altercation which led to his injuries. This Court will not substitute its judgment for that of the trial court unless the evidence clearly indicates that an opposite result must be reached. Carnes v Sheldon, 109 Mich App 204, 210; 311 NW2d 747 (1981).
It is undisputed that plaintiff Michael Coleman pushed defendants LaPorte and Barr before he was knocked unconscious. However, defendants had threatened plaintiff and his companion shortly before the fight. Defendant LaPorte admitted to a police officer following his arrest that defendants went to the scene of the altercation in order to find Coleman and his friend, a fact confirmed by all the defendants. The testimony also indicated that defendants Barr and LaPorte stood in front of and behind Coleman just before the altercation took place. Defendants’ prior threats and their face-to-face confrontation with plaintiff lead us to conclude that defendants were the aggressors in the altercation. Plaintiff’s reaction in pushing defendants away was defensive, based upon a well-founded apprehension regarding his physical welfare. We, therefore, find that the evidence clearly indicates that the trial judge’s findings on this isue were erroneous and that the opposite conclusion must be reached. Carnes v Sheldon, supra.
Finally, plaintiffs maintain that the trial court erred in finding defendant White not liable to plaintiffs. Plaintiffs argue that White was liable because he and the other defendants engaged in a joint enterprise to injure plaintiff Michael Coleman. Plaintiffs also argue that, at the very least, defendant White had interfered with the efforts of plaintiff’s companion to come to his aid, and that such interference enhanced plaintiff’s injuries. In ruling on White’s motion to dismiss, the trial judge stated that White was not liable because he had been assaulted first, and because he had not prevented plaintiff’s companion from coming to plaintiff’s aid.
After a careful review of the trial record, we conclude that there was no evidence to establish that defendant White was assaulted first. The only testimony on point indicates that White punched plaintiffs companion first. We note that there was sufficient evidence presented at trial to support the trial judge’s finding that defendant White did not prevent plaintiffs companion from coming to plaintiffs aid. However, the trial judge failed to address plaintiffs’ theory that defendant White engaged in a joint enterprise to injure plaintiff Michael Coleman. Therefore, we also reverse the trial court’s judgment in favor of defendant White and remand for findings on plaintiffs’ joint enterprise theory. GCR 1963, 517; Thayer v Barber’s Flying Service, Inc, 40 Mich App 326; 198 NW2d 761 (1972).
Reversed and remanded. | [
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Per Curiam.
Defendant was jointly tried and convicted with Richard Musselman of two counts of first-degree murder, MCL 750.316; MSA 28.548, two counts of assault with intent to murder, MCL 750.83; MSA 28.278, and felony-firearm, MCL 750.227b; MSA 28.424(2). He was sentenced to concurrent life terms of imprisonment on the first four counts and a consecutive two-year term on the felony-firearm conviction.
The charges against defendant Duby, codefendant Musselman, and Harry Varney, who was tried separately, stem from a shooting spree in the Saginaw area during the early morning hours of January 3, 1980. As a result of the spree, Alvin Swiney and Ralph Minerd were dead and Steve Miller and Meridith Davis had been assaulted. The shootings had racial overtones since three of the four victims were black and all three defendants were white.
Defendant took the stand and testified that on January 2, 1980, he, Musselman, and Varney were at Musselman’s house smoking marijuana and drinking whiskey and beer. Around midnight, defendant took a 12-gauge shotgun and three shells, belonging to his brother, from his house. In his green Nova, defendant, Musselman, Varney, and another youth drove to Shiawassee Flats to "shine” deer. After shining deer, defendant took the fourth youth home. Defendant, Musselman, and Varney returned to Musselman’s house where Musselman got more shotgun shells and, with defendant driving, they set out to shine deer again. However, as they were driving, Musselman and Varney talked about scaring a car, which defendant understood to mean shooting at its windows. As defendant drove past cars, Musselman shot at the cars, and the three laughed as they drove away, thinking they had scared the drivers. Defendant said he was unaware that anyone had been injured by any of the shootings. Musselman did not testify.
Defendant appeals as of right, raising the following four issues.
I
Did the Trial Court Abuse Its Discretion by Denying Defendant’s Motion for a Change of Venue Because of Extensive Pre-trial Publicity?
Prior to trial, defense counsel moved for a change of venue, claiming that pre-trial publicity prevented a fair trial. The court denied the motion, stating that an attempt would be made to impanel a jury in Saginaw County and, if it appeared that a jury could not be obtained, the motion could be renewed at that time.
A trial court’s determination on a motion for change of venue is reviewed for an abuse of discretion. People v Prast (On Rehearing), 114 Mich App 469; 319 NW2d 627 (1982); People v Swift, 172 Mich 473; 138 NW 662 (1912). It is appropriate for the trial court to reserve a decision on a request for a change of venue until jury selection has been attempted in the original county. People v Prast, supra; People v Collins, 43 Mich App 259, 262; 204 NW2d 290 (1972), cert den 419 US 866; 95 S Ct 121; 42 L Ed 2d 103 (1974).
The existence of pre-trial publicity does not by itself require a change of venue. People v Prast, supra; People v Marsh, 108 Mich App 659, 669; 311 NW2d 130 (1981). A change of venue is not necessary even though jurors have been exposed to adverse publicity and hold preconceived notions of guilt or innocence, if they can lay aside their impressions or opinions and render a verdict based on the evidence presented in court. Irvin v Dowd, 366 US 717; 81 S Ct 1639; 6 L Ed 2d 751 (1961); People v Marsh, supra, 667-668.
The burden rests on the defendant to show the existence of actual prejudice or the presence of strong community feeling or a pattern of deep and bitter prejudice so as to render it probable that the jurors could not exclude preconceived notions of guilt, notwithstanding their statements of impartiality. Irvin v Dowd, supra; Sheppard v Maxwell, 384 US 333; 86 S Ct 1507; 16 L Ed 2d 600 (1966); People v Bloom, 15 Mich App 463; 166 NW2d 691 (1969). The totality of the circumstances, including the content of the news reports and the voir dire examination transcript, must be evaluated on appeal in determining whether a defendant was deprived of a fair and impartial trial because of local prejudice. Irvin v Dowd, supra, 366 US 717, 723; Sheppard v Maxwell, supra, 384 US 333, 362.
On appeal, defendant makes no claim of identifiable prejudice, and our review of the voir dire examination transcript shows no such prejudice. The jury was selected over a period of four days, and the voir dire examination transcript was 536 pages long. After general questioning of the entire venire panel, each prospective juror was examined individually by the trial court, the prosecutor, and both defense attorneys concerning his exposure to adverse publicity and its effect on his ability to render an impartial verdict. Of the 12 jurors who deliberated the case, 2 had never heard of the case, and 7 of the remaining 10 jurors read about the killings at the time of their occurrence in January, 1980, and remembered little about the case. Upon questioning, each of the jurors said that he had not formed a preconceived or fixed opinion or impression of the defendant’s guilt or innocence and could render a fair and impartial verdict based on the evidence offered at trial.
Defendant argues that even though every juror who had been exposed to publicity stated that he or she could render a verdict based on the evidence offered at trial, pre-trial media coverage was so extensive and inflammatory as to give rise to a strong community prejudice which was too great to ignore.
Numerous reports about the shootings were carried by local newspapers, radio, and television stations. The killings were characterized as "wanton”, "homicidal craziness”, and a "drunken 'spur-of-the-moment whim’ ”. Statements by Varney and Musselman to others were published, which indicated defendant’s participation in the crime, including a statement made by Musselman to a detainee in the youth center that the trio had been sitting in Musselman’s home getting high and planned to go shooting at black motorists. There were also numerous psychological profiles of Musselman, who was labeled as a triggerman, troublemaker, alcoholic, drug user, illegitimate, and sociopath with long-standing emotional problems who once told his teacher that he did not need to learn to read because he was going to murder a man and be sent to prison. While the focus of the publicity was on Musselman, defendant emphasizes that his fate was intertwined with Musselman’s, especially in light of the court’s refusal to grant defendant a separate trial. The Saginaw News also ran the results of a poll which asked, "Do you believe the person charged in the recent shotgun slayings could get a fair trial in Saginaw?”. While 70% of the 344 readers said yes, the yes comments included: "It doesn’t really make any difference. The way our judicial system works, their lawyers will find some way to get them off the hook. * * * No matter what the verdict the jury gave, the judge would lighten the sentence and the parole would let them back on the streets. * * * Thanks to the News articles, it will have to go to another county and cost the taxpayers a lot of extra money.”_
Although there was considerable adverse publicity and sensationalism, we do not find the presence of such a strong community feeling or bitter prejudice as to render it probable that the jury could not exclude preconceived notions of guilt. Much of the pre-trial publicity occurred in January, 1980, when the crimes were committed, and then again during the trial. There was no media harrassment of the jurors at the trial, and the court repeatedly cautioned the jurors during the voir dire and trial not to read media accounts or discuss the case with others. Any deep-seated community feeling against defendant was not shared by the jury. Of 70 prospective jurors examined, only seven percent indicated that they could not render a fair and impartial verdict. By the time of trial, which was held six months after the occurrence of the crime, the impanelled jurors only vaguely remembered the news account, and each juror denied any preconceived impression' of the defendant’s guilt or innocence. We find no abuse of discretion.
II
Did the Trial Court Abuse Its Discretion by Denying Defendant’s Motion for a Separate Trial?
Both Duby’s and Musselman’s attorneys moved several times for a trial separate from Varney’s and from each other’s. While the prosecutor initially wanted all three defendants tried together, on the first day of trial the prosecutor requested severance for Varney’s trial, since references from Varney’s pre-trial statement which implicated the other codefendants could not be deleted without destroying the meaning of the statement, and Varney’s trial was severed.
A trial judge’s decision on a motion for separate trials is reviewed for an abuse of discretion. MCL 768.5; MSA 28.1028; People v Harris, 110 Mich App 636, 649; 313 NW2d 354 (1981). Since a strong policy favors joint trials, generally a defendant does not have a right to a separate trial. People v Harris, supra, 648-649; People v Carroll, 396 Mich 408, 414; 240 NW2d 722 (1976). There must be an affirmative showing of prejudice to substantial rights of the accused before an abuse of discretion will be found. People v Schram, 378 Mich 145, 156; 142 NW2d 662 (1966).
Defendant alleges three sources of prejudice arising from the joint trial. First, before trial and on appeal, defendant argued that he was denied a fair trial because antagonistic and inconsistent defenses were offered by the two defendants. People v Hurst, 396 Mich 1, 6; 238 NW2d 6 (1976); People v Aguilar, 105 Mich App 258; 306 NW2d 472 (1981). However, our review of the motion and trial transcripts reveal that while Varney’s defense was antagonistic to the other two defendants, Musselman’s and Duby’s defenses were the same, viz., both participated in the shooting but neither intended to kill or injure the victims. Since neither defendant attempted to exculpate himself by accusing the other, the joint trial did not allow the prosecutor to pit one defendant against the other. People v Hurst, supra.
Next defendant claims prejudice from an emotional outburst which occurred in the jury’s presence. During the first day of trial, Betty Stinger, an endorsed witness, entered the courtroom and began sobbing loudly. Ms. Stinger was the fiancée of victim Swiney, and was present in the car when he was killed. The trial judge immediately ordered the jury removed from the courtroom. As officers attempted to escort Ms. Stinger from the courtroom she attacked codefendant Musselman. Defendant claims prejudice arising from the incident and argues it would never have occurred had he been granted a separate trial.
We find that reversal is not warranted by this unfortunate incident. At the time that the trial court was called upon to exercise its discretion in ruling for severance, this incident could not have been predicted. Additionally, testimony from the bailiff, who escorted the jury from the courtroom, indicated that the jury only heard the crying and did not see or hear the incident in which Ms. Stinger attacked Musselman. The record shows that counsel for both Duby and Musselman stated that they were satisfied from the bailiff’s testimony that no harm resulted.
Finally, defendant argues that the trial court abused its discretion by requiring a joint trial since admission of several statements by Mussel-man to witnesses who testified at trial infringed upon his right to confront and cross-examine witnesses against him and deprived him of a fair trial. Since defendant’s argument that the court abused its discretion by requiring a joint trial in light of the use of incriminating extrajudicial statements and his claim that use of these statements deprived him of his right of confrontation are intertwined, we will address them together in defendant’s third claim of error.
Ill
Was Defendant Denied His Right to Confront and Cross-Examine Witnesses Against Him by Admission of His Codefendant’s Extrajudicial Statements? -
While defendant gave pre-trial statements to no one, codefendant Musselman gave a number of statements to police officers and others. Four witnesses were presented by the prosecution whose testimony only applied to codefendant Musselman. Specific references to defendant’s name had been deleted from the statements and the jury was repeatedly cautioned that the statements were only to be considered against Musselman.
In Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968), the United States Supreme Court held that the admission of a non-testifying codefendant’s confession implicating a defendant at a joint trial constituted a denial of the right of confrontation when there is no effective means of examining the codefendant concerning the statement. The Court concluded that cautionary instructions are insufficient to prevent jurors from considering "powerfully incriminating extrajudicial statements” by a codefendant with regard to another defendant. See, also, People v Harris, supra, pp 650-651. However, Bruton error does not automatically require reversal of an otherwise valid conviction. Reversal is not warranted where the error is harmless beyond a reasonable doubt. Harrington v California, 395 US 250; 89 S Ct 1726; 23 L Ed 2d 284 (1969).
We find that defendant was not prejudiced by admission of statements by Musselman to Richard Bryce and Anthony Wilkins, in which Musselman admitted the shootings and admitted that it was defendant’s brother’s gun that they used, since these statements were entirely consistent with defendant’s own testimony. Likewise, Musselman’s taped confession admitted nothing more than defendant’s testimony. Nor do we find prejudice to defendant from admission of Musselman’s statement to Wilkins that he’d get off the hook for the killings by playing crazy.
The testimony of Glen Turner, however, presents a more difficult question. Turner was lodged at the Saginaw County detention center while Musselman was there awaiting his juvenile court waiver hearing. Before testifying, Turner was cautioned by the prosecution to mention no names other than Musselman’s or the relationship between the defendants. The court cautioned the jury that the testimony was only to be used against Musselman.
Turner testified that Musselman had discussed the shootings with him in the recreation room of the detention center. The pertinent portion of Turner’s testimony on direct examination was as follows:
"Q. Now, did Mr. Musselman tell you what he was doing before the shooting went down?
"A. Yes, sir.
”Q. What did he tell you?
"A. They was getting high.
“Q. What specifically did he say about what he was doing?
’A. They were — he was getting high.
"Q. And did he tell you where this was taking place?
"A At his house.
”Q. Did he tell you what he — else took place at his house, if anything?
"A. That they had planned to go out and shoot some niggers.
"Q. What were his exact words that he used?
"A. That him and others had planned to go out and shoot some niggers.
”Q. Are those the words he used?
"A. Yes, sir.
”Q. What else did he tell you about what happened after they left the house?
”A. They went out ridin’ around.
"Q. Did he tell you why they were riding around?
"A. To see if they could fínd some niggers.” (Emphasis added.)
We reject the prosecution’s argument that Bruton error was avoided in the above testimony merely by omitting references to defendant. While in joint trials involving codefendants, deletion of the other codefendant’s name from the testimony is usually sufficient to avoid Bruton error, People v Miller, 88 Mich App 210, 220-221; 276 NW2d 558 (1979), rev’d on other grounds 411 Mich 321; 307 NW2d 335 (1981); People v Macklin, 46 Mich App 297, 302; 208 NW2d 62 (1973), Turner’s statement, which included the use of the word "they”, clearly implicated defendant since he admitted that he was at Musselman’s house getting "high” and that he participated in the shootings. Since codefendant Musselman was not available for cross-examination, we find that the rule of Bruton was violated.
Defendant argues that Turner’s testimony that Musselman said "they planned to go out and shoot some niggers” was not harmless since it constituted direct evidence on the element of premeditation and deliberation. The prosecution argues that any error was harmless since there was sufficient evidence of premeditation and deliberation without the testimony of Glen Turner to justify the convictions of first-degree murder. Specifically, the prosecution cites the following evidence as clearly establishing a premeditated and deliberate plan to kill blacks: (1) all the victims were black except one, who may have appeared black because of his heavy beard and because he sat high up in a truck, (2) two other potential victims, who were not attacked, were white, (3) to carry out the scheme defendant would drive up alongside a car and one of the passengers would shoot, (4) since the fatal shots were to the victims’ heads, the shots must have been aimed. The prosecution also argues that even if the shooting of the first victim, Meredith Davis, for whom defendant was convicted of assault with intent to murder, was not premeditated, the second and third shootings of Alvin Swiney and Ralph Minerd, the deaths of whom resulted in defendant’s convictions for first-degree murder, evidence premeditation and deliberation.
Though the issue is close, we agree with the prosecutor that the error was harmless. We reach this conclusion on grounds that even if Mussel-man’s statements that "they” planned to shoot, or "they” planned to find, or "they” planned to go out and find "some niggers” are totally disregarded, or had never been said, the evidence presented at trial clearly established a pattern of planned intent to harm blacks. The proofs clearly showed that defendant drove his car alongside cars occupied by blacks so that a shot could be fired at virtually point-blank range. Had this happened but once, it conceivably could be excused as nothing more than an accident occurring when the intent was no more than to scare the occupants of the other vehicle. But here it happened three times. It is these repetitive instances of pointblank shooting which distinguish the instant situation from People v Rollins, 33 Mich App 1; 189 NW2d 716 (1971). In Rollins, the only direct evidence of intent to kill was the codefendant’s state ment that after they had driven past the victim and his friends who were standing on a traffic island on Woodward Avenue, they decided to go back and on the way back, Rollins said "he was going to try his best to kill one of them.” Apart from that statement there was little circumstantial evidence of premeditation and deliberation. Rollins involved only one assault and, unlike the situation here where there were repetitive assaults, there was no evidence of premeditation. Likewise, the statement in Rollins was the statement of the defendant himself, whereas in the instant case, the statement in question was the codefendant’s.
IV
Did the Trial Court Abuse Its Discretion by Admitting Color Photographs Showing Shotgun Wounds to Two of the Victims’ Heads?
Color photographs of the heads of the two deceased victims, which were taken at the autopsy, were admitted over counsel’s strenuous objection. The prosecutor justified the admissibility of the pictures in the court below by arguing that they showed the exact location of the wounds, supporting the state’s theory that the defendants intended to kill the victims, not merely to scare them. The prosecution further argued that the jury should be allowed to see the photographs because they were relied on by the State Police Crime Laboratory technician, who testified for the prosecution, in determining the distances from which the victims were shot.
Admission of photographic evidence rests within the sound discretion of the trial court. People v Eddington, 387 Mich 551, 562; 198 NW2d 297 (1972). On review, the Court must determine whether the photographs were substantially necessary or instructive to show material facts or conditions or whether they were merely calculated to excite passion and prejudice. People v Falkner, 389 Mich 682, 685; 209 NW2d 193 (1973); People v Rocha, 110 Mich App 1, 13; 312 NW2d 657 (1981). The substantially necessary test is nearly the same as asking whether the evidence is helpful in throwing light on any material point in issue. People v Browning, 106 Mich App 516, 523; 308 NW2d 264 (1981). Photographs which are pertinent, relevant, competent, or material on any issue in the case are not rendered inadmissible merely because they show the details of a gruesome or shocking crime. People v Fuzi #2, 116 Mich App 277; 323 NW2d 358 (1982). Assuming the materiality of photographs, the trial court must still weigh the potential prejudicial effect against probative value. People v Wallach, 110 Mich App 37, 64, fn 6; 312 NW2d 387 (1981).
We are not persuaded that the trial court abused its discretion in admitting the photographs in the instant case. Whether defendants possessed the intent to kill was a material point in issue. The photographs, which showed that both victims were shot in the middle of the head, supported the prosecution’s theory that defendants took direct aim at the victims, and thereby refuted defendant’s claim that they were merely shooting car windows to scare people. Although the medical examiner testified about the location of the wounds, we find that admission of the photographs would further aid the jury in determining intent, and that the pictures were not so inflammatory as to require their exclusion.
Having found no reversible error on any of the issues raised, defendant’s convictions are affirmed.
Affirmed.
Defendant’s brief listed 70 television stories appearing either on WNEM-TV 5 in Bay City/Saginaw or WJRT-TV 12 in Flint, and 41 news articles, apparently all from the Saginaw News.
US Const, Am VI; Const 1963, art 1, § 20. | [
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N. J. Kaufman, J.
Plaintiff appeals as of right from a grant of a summary judgment in favor of defendants based upon plaintiffs failure to state a cause of action upon which relief can be granted. GCR 1963, 117.2(1).
On September 8, 1980, defendant New Outlook, Inc., applied to defendant Department of Social Services for a license to operate an adult foster care small group home within the plaintiff City of Dearborn for the benefit of five prospective residents. The city commenced this cause of action on October 14, 1980, seeking preliminary and permanent injunctive relief to restrain the department from issuing the license. The city alleged that its zoning ordinance does not permit the land use sought by New Outlook and that a statute exempting adult foster care facilities from local zoning ordinances, MCL 125.583b; MSA 5.2933(2), is invalid or inapplicable. At a hearing on the city’s motion for a preliminary injunction, New Outlook and four prospective residents of the facility were permitted to intervene as party defendants. The trial court also permitted the Cities of Woodhaven and Riverview to intervene in support of plaintiffs position. The parties filed respective motions for summary judgment, apparently agreeing that the litigation presents disputed legal issues without involving a factual dispute. In an opinion dated May 11, 1981, and an order dated June 11, 1981, the trial court granted defendants’ motion for summary judgment. The court concluded that all of plaintiffs challenges to MCL 125.583b; MSA 5.2933(2) were without merit. We review plaintiffs challenges seriatim.
The term "adult foster care facility” refers to any "governmental or nongovernmental establishment having as its principal function the receiving of adults for foster care. It includes facilities and foster care family homes for adults who are aged, emotionally disturbed, developmentally disabled, or physically handicapped who require supervision on an ongoing basis but who do not require continuous nursing care”. MCL 400.703(4); MSA 16.610(53)(4). Pursuant to the Adult Foster Care Facility Licensing Act, MCL 400.701 et seq.; MSA 16.610(51) et seq., such facilities are licensed and regulated by the Adult Foster Care Licensing Advisory Council of the Department of Social Services. The Legislature has provided that certain residential care facilities are exempt from city or village zoning regulation.
"(2) In order to implement the policy of this state that persons in need of community residential care shall not be excluded by zoning from the benefits of normal residential surroundings, a state licensed residential facility providing supervision or care, or both, to 6 or less persons shall be considered a residential use of property for the purposes of zoning and a permitted use in all residential zones, including those zoned for single family dwellings, and shall not be subject to a special use or conditional use permit or procedure different from those required for other dwellings of similar density in the same zone.” MCL 125.583b(2); MSA 5.2933(2X2).
Plaintiffs first challenge to the zoning exemption is based upon article 7, § 22 of the Constitution of 1963, which provides cities and villages with the power to regulate local concerns.
"Under general laws the electors of each city and village shall have the power and authority to frame, adopt and amend its charter, and to amend an existing charter of the city or village heretofore granted or enacted by the legislature for the government of the city or village. Each such city and village shall have power to adopt resolutions and ordinances relating to its municipal concerns, property and government, subject to the constitution and law. No enumeration of powers granted to cities and villages in this constitution shall limit or restrict the general grant of authority conferred by this section.” Const 1963, art 7, § 22.
Plaintiff contends that article 7, § 22 provides it with exclusive authority in zoning matters, and that MCL 125.583b(2); MSA 5.2933(2)(2) is, there fore, an unconstitutional infringement upon that authority.
Plaintiff’s argument is without merit. Independent of legislation, the constitutional grant contained in Const 1963, art 7, § 22 did not grant cities the power to zone. Clements v McCabe, 210 Mich 207, 216-219; 177 NW 722 (1920). Thus, it is well-established as a general principle of law that local zoning ordinances are subordinate to otherwise permissible legislative enactments. See Dearden v Detroit, 403 Mich 257; 269 NW2d 139 (1978); Detroit Edison Co v Wixom, 382 Mich 673; 172 NW2d 382 (1969); Renshaw v Coldwater Housing Comm, 381 Mich 590; 165 NW2d 5 (1969); DeGaynor v Dickinson County Memorial Hospital Board of Trustees, 363 Mich 428; 109 NW2d 777 (1961); see, generally, Brandon Twp v North-Oakland Residential Services, Inc, 110 Mich App 300, 304-305; 312 NW2d 238 (1981). Moreover, in the instant case, a legitimate public interest exists to justify the Legislature’s intrusion into the zoning process. That interest is expressed in article 8, § 8 of the Constitution of 1963, which mandates that "[institutions, programs and services for the care, treatment, education or rehabilitation of those * * * physically, mentally or otherwise seriously handicapped * * * be fostered and supported”. Brandon Twp, supra. Consequently, we find in Const 1963, art 7, § 22 no constitutional impediment to the zoning exemption expressed in MCL 125.583b(2); MSA 5.2933(2X2).
Plaintiff’s second challenge to the statute is based upon the title-object clause of the state constitution. Const 1963, art 4, § 24 provides:
"No law shall embrace more than one object, which shall be expressed in its title. No bill shall be altered or amended on its passage through either house so as to change its original purpose as determined by its total content and not alone by its title.”
Plaintiff argues that the object of the zoning enabling statute, MCL 125.581 et seq.; MSA 5.2931 et seq., is to grant cities and villages the authority to zone without usurpation of that authority, and therefore, as amended, the statute embraces more than one object by otherwise restricting that authority. We disagree with plaintiff’s contention. The purpose of the title-object clause is to prevent the enactment of statutes with exceedingly broad objects so as to include concepts that are wholly foreign and incongruous. The constitutional prohibition thereby limits legislative logrolling and any resulting public disservice. Advisory Opinion on Constitutionality of 1975 PA 227, 396 Mich 123, 131-133; 240 NW2d 193 (1976). The zoning enabling act grants cities and villages the authority to engage in zoning regulation. There is nothing foreign or incongruous to that concept in MCL 125.583b(2); MSA 5.2933(2)(2), which limits that authority in particular circumstances. A restriction on a municipality’s zoning power clearly belongs in the same act granting that power. Livonia v Dep’t of Social Services, 119 Mich App 806; 328 NW2d 1 (1982).
Plaintiff’s third challenge to the statute is that it is simply inapplicable to the present situation. Plaintiff points out that the New Outlook facility was licensed pursuant to 1979 PA 218; MCL 400.701 et seq.; MSA 16.610(51) et seq., while the zoning statute only refers to facilities licensed under the authority of a predecessor statute, 1972 PA 287; MCL 331.681 et seq.; MSA 16.610(1) et seq. Plaintiff, therefore, concludes that the New Outlook facility may not benefit from the exemption. We reject this challenge to the statute as well. It is readily apparent that the Legislature’s failure to amend MCL 125.583b; MSA 5.2933(2) to make reference to the new statute was merely a matter of legislative oversight. Any other interpretation would render the section a nullity. Livonia v Dep’t of Social Services, supra; Brandon Twp, supra, 306-307. The Legislature’s intent that foster care facilities with six or less residents remain free of zoning restrictions is made clear by § 16(2) of the Adult Foster Care Facility Licensing Act, MCL 400.716(2); MSA 16.610(66X2), which requires zoning approval for larger foster care facilities.
In a related argument, plaintiff challenges MCL 125.583b; MSA 5.2933(2), based upon the Legislature’s failure to reenact and republish the section following the repeal of the predecessor adult foster care statute and the enactment of MCL 400.701 et seq.; MSA 16.610(51) et seq. Article 4, § 25 of the Constitution of 1963 provides:
"No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re-enacted and published at length.”
It is undisputed that the Legislature did not reenact and republish MCL 125.583b; MSA 5.2933(2) following the passage of the Adult Foster Care Facility Licensing Act, 1979 PA 218; MCL 400.701 et seq.; MSA 16.610(51) et seq. Nevertheless, Const 1963, art 4, § 25 is not violated unless the statute amending the act which has not been reenacted or published dispenses with or changes any provision of the amended act. Midland Twp v State Boundary Comm, 401 Mich 641, 659; 259 NW2d 326 (1977). As noted above, we believe the Legislature intended, with the passage of the new adult foster care statute, that the zoning exemption in MCL 125.583b; MSA 5.2933(2) apply to facilities licensed under the new act. However, we are not convinced that in doing so the Legislature actually dispensed with or changed any provision of the statute. Although under the new foster care act the licensee of a facility need not be a member of the facility household, the threshold requirement of MCL 125.583b; MSA 5.2933(2) remains unchanged. To benefit from the zoning exemption the facilities must, in any case, provide 24-hour care for their residents. Thus, the enactment of 1979 PA 218 did not dispense with or change the statute provisions so as to violate Const 1963, art 4, §25.
Plaintiff’s final challenge to the statute is that the provision does not apply to "small group home” facilities licensed under the Adult Foster Care Facility Licensing Act because that act authorizes such facilities with up to 12 residents. New Outlook has been licensed for a small group home with five residents. This claim is also without merit. A "small group home” is a "state licensed residential facility” within the meaning of MCL 125.583b; MSA 5.2933(2). Therefore, since the small group home in question has "6 or less” residents, it qualifies for the statutory exemption. Cf. Brandon Twp, supra, 308-309.
Because we find that none of plaintiff’s challenges to the zoning exemption statute have legal merit, we conclude the summary judgment was appropriate under GCR 1963, 117.2(1).
Affirmed.
Although the City of Riverview has filed an amicus curiae brief raising some additional challenges to MCL 125.583b; MSA 5.2933(2), because those additional issues were not raised below we do not consider them in this appeal.
A similar provision exempts such facilities from township zoning ordinances. MCL 125.286a(2); MSA 5.2963(16a)(2). | [
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J. E. McDonald, J.
Plaintiffs represent a class of female General Motors employees, all members of the UAW, who were employed at various locations throughout Michigan during the period from November 20, 1970, to March 31, 1977. Their employment was at all times governed by the terms of a collective-bargaining agreement which included provisions for various insurance benefits. By its terms, the agreement provided for sickness and accident benefits and for extended disability insurance up to a maximum of 52 weeks for any one period of disability. However, disability benefits due to any one pregnancy or resulting childbirth or complications was limited to six weeks.
Plaintiffs filed suit on November 20, 1973, claiming that the provision limiting pregnancy benefits constituted sex discrimination in violation of the Fair Employment Practices Act (FEPA), 1955 PA 251, § 3a, as amended by 1966 PA 349; MCL 423.303a; MSA 17.458(3a), repealed by 1976 PA 453, § 804, effective March 31, 1977, and replaced by the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., effective the same day, as well as the Equal Protection Clause of the Michigan Constitution, Const 1963, art 1, § 2. The relief sought is damages in the amount of disability benefits each class member would have received if she had been absent for a disability arising from illness or injury instead of a disability arising from pregnancy. After the case was certified as a class action, plaintiffs filed a motion for summary judgment as to liability only, on the basis of GCR 1963, 117.2(1). Defendant filed a cross-motion for sum mary judgment based on the same court rule. By order entered June 22, 1981, the trial court granted plaintiffs’ motion, finding that the provision limiting pregnancy benefits constituted sex discrimination in violation of the FEPA. In so holding, the court rejected defendant’s alternative contention that pregnancy is not an "injury or sickness” included within the scope of the collective-bargaining agreement’s disability insurance benefit provisions. Defendant appeals, by leave granted, the trial court’s grant of summary judgment in favor of plaintiffs.
Initially, defendant argues that the prohibition against sex discrimination in employment contained in the FEPA was invalid under the title-object clause of the Michigan Constitution, Const 1963, art 4, § 24, because it was not reflected in the FEPA’s title until the title was amended on October 5, 1972. Since plaintiffs represented a class of employees who worked for defendant during the period from November 20, 1970, to March 31, 1977, defendant’s argument would, in effect, limit the scope of this class by prohibiting all claims arising before October 5, 1972. We do not believe such a limitation on the class of plaintiffs is proper.
The title-object clause of the Michigan Constitution provides:
"No law shall embrace more than one object, which shall be expressed in its title. No bill shall be altered or amended on its passage through either house so as to change its original purpose as determined by its total content and not alone by its title.” Const 1963, art 4, §24.
At the time the alleged discriminatory acts herein occurred, the title to the FEPA, effective in 1955, provided:
"An act to promote and protect the welfare of the people of this state by prevention and elimination of discriminatory employment practices and policies based upon race, color, religion, national origin and ancestry; to create a state fair employment practices commission, defining its functions, powers and duties; and for other purposes.”
However, the body of the act, having been amended by 1965 PA 344 and 1966 PA 349, also included within its prohibition discrimination based on age and sex, without an amendment to the title of the act. MCL 423.303a; MSA 17.458(3a). Subsequently, on October 5, 1972, the title to the FEPA was amended by 1972 PA 267 to include "age” and "sex” discrimination.
Defendant relies on the decision of a panel of this Court in Hudak v Ex-Cell-O Corp, 58 Mich App 135; 227 NW2d 251 (1975), wherein the Court affirmed a trial court’s finding that the age discrimination provisions of § 3a were unconstitutional until its amendment on October 5, 1972, because they were not reflected in its title.
However, at least one judge of this Court, in the context of a sex discrimination claim, has found reason to question the holding in Hudak:
"I do not think that MCL 423.303a; MSA 17.458(3a), prior to its amendment in 1972, was unconstitutional under the title-object clause, Const 1963, art 4, § 24. The 1965 amendment to the body of the act was clearly within the title and object of the act. To the extent that Hudak v Ex-Cell-O Corp, 58 Mich App 135; 227 NW2d 251 (1975), holds otherwise, I think it mistaken. The title of an act need not serve as an index of all that the act contains. People v Milton, 393 Mich 234; 224 NW2d 266 (1974); Hertel v Racing Comm’r, 68 Mich App 191; 242 NW2d 546 (1976). The title-object clause was not intended to strike down this type of amendment.” Barczak v Rockwell International Corp, 68 Mich App 759, 767; 244 NW2d 24 (1976) (Cavanagh, J., dissenting).
This panel agrees with Judge Cavanagh, and plaintiffs herein, that Hudak was based on an unnecessarily broad construction of the title-object clause. As stated in Commuter Tax Ass’n v Detroit, 109 Mich App 667, 671-672; 311 NW2d 449 (1981), where the Court rejected the contention that a 1981 amendment to the City Income Tax Act, MCL 141.501 et seq.; MSA 5.3194(1) et seq., was violative of the title-object clause:
"Const 1963, art 4, § 24 is not offended if the substitute bill or amendment is for the same purpose as the original bill, if the substitute or amendment is in harmony with the objects and purposes of the original bill and germane thereto. United States Gypsum Co v Dep’t of Revenue, 363 Mich 548; 110 NW2d 689 (1961); Moeller v Wayne County Bd of Supervisors, 279 Mich 505; 272 NW 886 (1937).
"As the Supreme Court said in Loomis v Rogers, 197 Mich 265, 271; 163 NW 1018 (1917):
" 'An abridgment of all those sections is not essential to a sufficient title. While it contains various related provisions not directly indicated or enumerated in the title, under the construction of this constitutional requirement, as many times reviewed by this court, if the act centers to one main general object or purpose which the title comprehensively declares, though in general terms, and if provisions in the body of the act not directly mentioned in the title are germane, auxiliary, or incidental to that general purpose, the constitutional requirement is met.’ ” (Emphasis added.)
See also Midland Twp v State Boundary Comm, 401 Mich 641; 259 NW2d 326 (1977), app dis 435 US 1004; 98 S Ct 1873; 56 L Ed 2d 386 (1978), and Sharp v Huron Valley Bd of Ed, 112 Mich App 18; 314 NW2d 785 (1981).
We believe that the FEPA’s title, as originally enacted, did focus on one general object or purpose: the prevention and elimination of discriminatory employment practices and policies. The declaration of this single broad purpose was sufficient to meet the requirements of Const 1963, art 4, § 24. The fact that the Legislature in 1965 decided to broaden the scope of the FEPA’s antidiscrimination provisions by providing in the body of the act that sex and age were additional types of prohibited discrimination did not result in the body of the act being beyond the scope of the object stated in the title of the act, even though the act’s original title enumerated several types of discrimination it intended to prohibit without mentioning sex or age. We find, therefore, that the provision against sex discrimination contained in § 3a of the FEPA did not violate the title-object clause of the Michigan Constitution prior to the title’s amendment on October 5, 1972.
Defendant next contends that the provisions of the collective-bargaining agreement between General Motors and the UAW did not establish a classification based on sex which violated the FEPA during the period of November 20, 1970, through March 31, 1977. In support of this contention, defendant places great reliance on General Electric Co v Gilbert, 429 US 125; 97 S Ct 401; 50 L Ed 2d 343 (1976), reh den 429 US 1079; 97 S Ct 825; 50 L Ed 2d 799 (1977), reh den 429 US 1079; 97 S Ct 825; 50 L Ed 2d 800 (1977), where the Supreme Court held that an employer’s disability plan providing sickness and accidental benefits to all employees, but excluding disabilities arising from pregnancy, would 'not violate federal equal employment legislation, 42 USC 2000e-2(a)(l) (Title VII), absent a showing that the exclusion of pregnancy disability benefits was a "pretext” for discrimination against women. The Court found that the exclusion did not result in gender based discrimination. Rather, the Court viewed the exclusion as part of an insurance package in which there were no risks from which either men were protected and women were not, or vice versa.
Defendant also points to the Supreme Court’s ruling in Geduldig v Aiello, 417 US 484; 94 S Ct 2485; 41 L Ed 2d 256 (1974), where the exclusion of pregnancy-related disabilities from employees’ insurance coverage was held not to amount to discrimination under the Equal Protection Clause. Defendant goes on to argue that, since the Michigan FEPA was largely modeled after and based on policy considerations similar to Title VII, see C Thorrez Industries, Inc v Civil Rights Comm, 88 Mich App 704; 278 NW2d 725 (1979); Civil Rights Comm v Chrysler Corp, 80 Mich App 368; 263 NW2d 376 (1977), this Court should follow the reasoning of Gilbert and Geduldig and find that the limitation of pregnancy benefits in the collective-bargaining agreement covering plaintiffs’ employment was not impermissible sex-based discrimination. We disagree.
Initially, we note that, in a recent decision, the Michigan Supreme Court stated that neither the FEPA nor the Michigan Constitution binds Michigan courts to whatever the Congress enacts or the federal courts decide. Rather, the question of whether a particular policy or rule of federal law should be incorporated into Michigan law should be decided as a particular issue arises. Dep’t of Civil Rights ex rel Parks v General Motors Corp, 412 Mich 610; 317 NW2d 16 (1982).
Several recent decisions of this Court have also held that the Gilbert Court’s narrow interpretation of federal legislation does not control this state’s construction of the FEPA or other fair employment legislation and have specifically rejected its reasoning. In Dep’t of Civil Rights ex rel Jones v Dep’t of Civil Service, 101 Mich App 295; 301 NW2d 12 (1980), a panel of this Court, in reviewing the impact of Gilbert on the FEPA and the successor Elliott-Larsen Civil Rights Act, pointed out that no appellate court in Michigan had considered the applicability of Gilbert on state law and discussed with approval cases from other jurisdictions which had held that they were not compelled to construe their own state statutes in the same manner as the Supreme Court had done with the federal statute. 101 Mich App 302-303. The Court went on to state:
"Although Title VII and the Michigan Civil Rights Act are worded similarly, we are not compelled to construe Michigan law in the same manner as Title VII. Interpretations of Title VII need not control where state law dictates a contrary result.” (Footnote omitted.) 101 Mich App 303.
The Court also noted that Title VII, by its own terms, does not pre-empt state law. 42 USC 2000e-7; 42 USC 2000h-4; 101 Mich App 303, fn 13. See also Nickles v Brown City Community Schools, 105 Mich App 708; 307 NW2d 707 (1981).
In each of these cases, panels of this Court held that the exclusion or limitation of pregnancy-related disability benefits constituted sex-based discrimination in violation of the FEPA. As explained by the Jones Court:
"We find ample authority under Michigan’s own civil rights legislation to support a conclusion that civil service violated state law in denying disability benefits to pregnant women.
"Accordingly, we conclude that civil service’s denial of pregnancy related disability benefits violated the anti-discrimination provisions contained in FEPA and its successor, the CRA. Pregnancy exclusion is not a sex neutral classification; pregnancy is a condition unique to women; therefore, any distinctions drawn on the basis of this feature works to deny women valuable rights solely on account of their sex. We conclude that 'pregnancy’ discrimination is included within the meaning of 'sex’ contained in the CRA and FEPA.” 101 Mich App 303-304.
Based on the foregoing, we find no merit to defendant’s contention that, under Michigan law, the limitation of pregnancy benefits is not sex-based discrimination.
Likewise, we find no merit in defendant’s alternative argument that the Legislature acted improperly in adopting its 1978 amendment, MCL 37.2201(d); MSA 3.548(201)(d), which explicitly defines the limitation of pregnancy benefits as a form of "sex” discrimination. In enacting this amendment, the Legislature was not retroactively broadening the scope of statutory prohibitions on sex discrimination. Rather, it was merely making explicit its previous intent to include the limitation of pregnancy benefits within its definition of "sex discrimination”. See concurring opinion of Judge Kelly in Jones, supra, 101 Mich App 305-308. That the Legislature did not deem it necessary to explicitly define pregnancy-related discrimination as an aspect of sex discrimination until the Supreme Court’s highly questionable 1976 decision in Gilbert, is obvious.
Defendant’s final argument is that plaintiffs did not establish that disabilities resulting from pregnancy or childbirth are disabilities resulting from injury or sickness under the collective-bargaining agreement. Defendant argues, relying on Gilbert, supra, that, because pregnancy is not a disability resulting from sickness or injury, the provision for six weeks of pregnancy benefits is not a limitation on regular disability coverage but instead is additional coverage to which pregnant employees would not have otherwise been entitled. Defendant reasons that this result follows as a matter of contract interpretation rather than from any construction of the FEPA. We disagree and hold that the trial court properly rejected defendant’s contentions on this issue.
According to the terms of § 7(a) of Article II of the collective-bargaining agreement, an employee is eligible for benefits if he or she becomes wholly or continuously disabled as the result of any injury or sickness so as to be prevented thereby from performing any and every duty of his or her occupation and is under treatment by a licensed physician during the period of this disability. Eligibility for benefits is thus couched in terms of the presence or absence of a disability, not in terms of the nature or source of the disability. An employee who is giving childbirth, or is suffering complications as a result of giving childbirth, fits within this definition of "disabled” just as well as an employee who suffers from an illness or from injuries, whether accidental or self-inflicted. The fact that the parties used the terms "injury” and "sickness” to describe common sources of disability does not compel the conclusion that disabilities based upon these sources were the only ones for which benefits would be provided. Accordingly, the language of § 7(a) of the collective-bargaining agreement itself supports the conclusion that pregnancy is one type of "disability” for which the parties negotiating the agreement intended to provide benefits.
Furthermore, and perhaps even more persuasive for plaintiffs’ position, the language of § 7(e) of the parties’ agreement, which provides for the six-week pregnancy benefits, begins with the language "For disability caused by * * The term "disability” is not independently defined for purposes of § 7(e), nor is pregnancy identified as a special condition distinguishable from the disabilities described in §7(a). The failure to adopt a special definition excluding pregnancy from the scope of the term "disability” indicates to this Court that the parties intended to include pregnancy within the general definition of disability found in § 7(a). Section 7(e) is thus subject to, rather than independent of, the provisions of § 7(a) conferring disability benefits in cases of injury or sickness.
For these reasons, we hold that the trial court’s grant of summary judgment to plaintiffs on the question of liability was proper.
Affirmed. | [
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R. L. Tahvonen, J.
In this action for damages, plaintiffs claimed they were induced to enter into a consent judgment by fraud on the part of defendant’s decedent, Harold Soble. Following a lengthy non-jury trial, the trial court found for plaintiffs and defendant now appeals as of right.
As is often true in fraud actions, the legal issues before this Court cannot be considered apart from a detailed statement of the factual setting from which they spring. With due but necessarily passing regard for the virtues of brevity, that statement follows.
In 1967, Harold Soble purchased two adjoining parcels of real property located at the intersection of Northland Drive and Eight Mile Road in South-field for approximately $1,000,000. In 1968, Northpointe Venture, a partnership, was formed among the parties to this lawsuit and other individuals. The partnership acquired the real estate from Harold Soble for the purpose of building a hotel on the property. The managing partners included Harold Soble, Jerome Soble, Herman Brodsky, plaintiff Benjamin Gorman, and plaintiff Irving Sniderman.
The partnership was divided into 100 points. Ninety-seven points were sold to partners and three points remained in the treasury. Harold Soble purchased 47 points of the partnership. The subscription agreement required him to make a capital contribution of $580,000. The partnership, however, loaned Soble $200,000. Gorman received 15 points and was required to make a capital contribution of $325,000. Sniderman received two points and was required to contribute $45,000.
In 1969, a dispute arose concerning the feasibility of the hotel project. Harold Soble was of the opinion that due to a deteriorating market condition and high interest rates it would be more profitable to sell the property in its unimproved state and dissolve the partnership. Gorman, Sniderman, and Brodsky disagreed, after which relations between the parties deteriorated significantly. Subsequently, an action was commenced by the partnership to compel Soble to repay the $200,000 loan. A second action was commenced by the nonmanaging partners against Harold Soble, Gorman, Brodsky, and Max Shultz. They sought to compel the payment of $600,000 by the defendant, which represented the outstanding $200,000 loan in addition to the unpaid portion of his subscription, and to compel Gorman, Brodsky, and Shultz to pay the unpaid portions of their subscriptions. In addition, the nonmanaging partners sought to dissolve the partnership and, as a result, a receiver was appointed.
Gorman and Soble had become adversaries in another dispute involving a different partnership, Northland Square, which was unrelated to this action. Gorman became involved in serious financial difficulties and related this to Soble. In late 1973 and early 1974, a series of meetings took place between Soble, Gorman, Sniderman, and Brodsky. Gorman testified that the meetings took place at the insistance of Soble. During the meetings, Soble indicated his dissatisfaction with the appointment of a receiver because of the associ ated costs and attempted to settle the lawsuit. Gorman responded that he was not interested in settling because he wanted the property sold and did not believe Soble would now agree to a sale. To induce Gorman to agree to a consent judgment, Soble offered to transfer $100,000 of his capital account to Gorman, pay Gorman $4,000 in cash, and assign a $36,000 note to him. Soble told Gorman on many occasions that he wanted to sell the property as soon as a settlement was reached in order to generate tax losses.
Sniderman testified that he wanted to sell the property and did not want the lawsuit settled. When the partnership’s receiver eventually received an offer for the property of $650,000, Sniderman considered the price to be acceptable, but found the offer to be unacceptable because of certain attached conditions. Soble told Sniderman that if they settled the lawsuit they would be able to sell the property easily and that he was willing to sell in order to generate tax losses. To induce Sniderman to agree to a consent judgment, Soble offered to transfer $10,000 of his capital account to Sniderman.
Soble testified that he owned unrelated property which he expected to sell for a large profit. Negotiations for the sale of that property were ongoing at the time of his negotiations with Gorman and Sniderman. Soble agreed to transfer part of his interest in the partnership to Gorman and Snider-man in exchange for their agreement to allocate all of the partnership’s tax losses to him. He stated that he would not have agreed to a consent judgment had he not believed that the sale of his other property was to take place. He did not inform the plaintiffs that his interest in selling the partnership property depended upon the sale of his other property. The sale of Soble’s other property did not take place.
A consent judgment was entered on March 4, 1974. It provided for the purchase of the partnership interests of the dissatisfied partners, forgave all indebtedness of the partners, and provided for the transfer of capital, as discussed above. In addition, the judgment provided for distribution of the partnership assets. Essentially, it provided that the partner whose cost per point was the highest would be paid first until his cost per point was reduced to the level of the partner whose cost per point was second highest. Both of these partners would then be paid until their cost per point was reduced to the level of the partner whose cost per point was the third highest, and so on, until the cost per point of each partner equaled that of the others. Any remaining funds available for distribution were then to be distributed pro rata to all of the remaining partners. Finally, the agreement provided:
"It is ordered that the partnership of Northpointe Venture, as altered by this consent judgment, shall continue solely for the purpose of winding up its affairs, disposition of its assets, and distributing same to its remaining partners. For such purpose, the real estate of the partnership shall be sold only upon the affirmative vote of the holders of eighty-five (85%) percent interest in the partnership; that is to say, collective percentage interest totaling not less than eighty-five (85%) percent, and not points; * * *.”
Gorman and Sniderman testified that they agreed to the consent judgment because they believed Soble’s representations that he was willing to sell the property.
Gorman testified that on the day following the entry of the consent judgment, he met with Soble to discuss their dispute over the Northland Square partnership. Soble told Gorman that he wanted him to remove himself from the controversy and testify on Soble’s behalf in any related hearings. Soble indicated that he would allow the property involved in the present action to be sold and offered to pay Gorman $5,000 if he agreed to so testify. Gorman refused. Soble then told Gorman that if he did not accede to . Soble’s demands, the partnership property would not be sold as long as Gorman lived.
Soble initially denied that the meeting took place. On cross-examination, however, he admitted that he may have met with Gorman on the day following the entry of the consent judgment.
In July, 1974, Gorman presented Soble with a real estate listing agreement which Soble refused to sign, stating that he would not,permit the property to be sold. Gorman approached Soble on numerous other occasions to request his cooperation in attempting to sell the property. Soble refused to agree to a sale unless Gorman agreed to modify the consent judgment’s distribution formula.
On April 24, 1975, plaintiffs commenced the present action complaining that Soble induced plaintiffs to enter into the consent judgment by fraud. Following trial, the court found in favor of the plaintiffs, awarded the Gormans $335,900.98 plus interest of $134,176.33, awarded Sniderman $42,786.80 plus interest of $17,091.27, and ordered the plaintiffs to assign their partnership interests to Soble upon satisfaction of the judgment. Defendant then brought this appeal as of right.
Defendant’s first arguments contend that the trial court’s finding of actionable fraud was clearly erroneous. The elements of fraud are well-settled:
"The general rule is that to constitute actionable fraud it must appear: (1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery.” Candler v Heigho, 208 Mich 115, 121; 175 NW 141 (1919); Hi-Way Motor Co v International Harvester Co, 398 Mich 330, 336; 247 NW2d 813 (1976).
The burden of proof rests with the plaintiff, who must prove fraud by clear and convincing evidence. International Harvester Co, supra, p 336.
Defendant asserts initially that Mr. Soble’s representation to plaintiffs that he would actively assist in the sale of the partnership property if plaintiffs agreed to the consent judgment was simply a promise of future performance and, therefore, his subsequent failure to fulfill his promise cannot serve as a basis for a finding of fraud. If at the time the representation was made there was no present intent to carry it out, however, the representation constitutes fraud. Danto v Charles C Robbins, Inc, 250 Mich 419, 425; 230 NW 188 (1930). On the day following entry of the consent judgment, Soble told Gorman that he had no intention of permitting the sale of the partnership property unless Gorman removed himself from the Northland Square partnership dispute and testified on Soble’s behalf in related litigation. This statement was sufficiently contemporaneous with Soble’s promise to sell the property to establish that he had no intention of fulfilling his promise at the time he made it.
Defendant asserts next that Gorman’s testimony concerning his meeting with Soble could not be clear and convincing evidence of fraud since Gorman’s story was refuted by Soble’s own testimony. In its opinion, the trial court stated that it believed the testimony of plaintiffs and did not believe Soble’s testimony regarding meetings near the time of the entry of the consent judgment. This Court must give due deference to the factual findings of a trial court. Smith v State Accident Fund, 403 Mich 201, 203-204; 267 NW2d 909 (1978). Regard must be given to the special opportunity of the trial court to judge the credibility of the witnesses. GCR 1963, 517.1; Higgins v Kenneth R Lawrence, DPM, PC, 107 Mich App 178, 182; 309 NW2d 194 (1981). Thus, a factual determination will not be set aside on appeal unless this Court is left with a definite and firm conviction that a mistake has been made. Higgins, supra, p 182.
Our review of the record does not disclose that a mistake has been made. Mr. Soble’s testimony was less than reliable. On direct examination, he testified that he did not meet with Gorman following entry of the consent judgment. On cross-examination, however, he admitted that he may have been mistaken. In addition, his testimony was replete with inconsistent statements and lapses of memory. The trial court’s acceptance of Gorman’s testimony, over that of Soble, as an accurate reflection of the events does not leave us with a definite and firm conviction that a mistake has been made.
The defendant contends that the testimony of Gorman and Sniderman which related to statements made by Soble prior to the entry of the consent judgment was inadmissible because the statements related to offers of settlement which were inadmissible pursuant to MRE 408 and the parol evidence rule. MRE 408 provides that evidence relating to an offer of settlement is not admissible to prove liability for or invalidity of the claim. The rule provides, however, that when the evidence is introduced for another purpose exclusion is not required. The claim to which the offer of settlement related was the claim made by the dissatisfied partners in the original action. Mr. Soble’s offer of settlement was not introduced to prove that claim. Rather, it was introduced to prove the plaintiffs’ claim of fraudulent inducement. Thus, MRE 408 did not preclude the introduction of this evidence.
The parol evidence argument is also without merit. Initially, it must be noted that defendant failed to raise this objection at the trial level. Thus, appellate review is precluded absent manifest injustice. People v Buschard, 109 Mich App 306, 310; 311 NW2d 759 (1981). The parol evidence rule provides that where a written agreement is clear and unambiguous, parol evidence of prior negotiations may not be admitted to alter or vary the terms of the written agreement. Salzman v Maldaver, 315 Mich 403, 412; 24 NW2d 161 (1946). A number of exceptions to this rule exist; one is where fraud is claimed. Goodwin, Inc v Orson E Coe Pontiac, Inc, 392 Mich 195, 204; 220 NW2d 664 (1974). Since the plaintiffs’ claim is one of fraud, the parol evidence rule is not applicable.
Defendant contends next that the plaintiffs did not rely on Soble’s statements. With respect to this issue, Gorman testified:
"Mr. Soble was so anxious to sell the property and get rid of the receiver, and he was so convincing about it and he wanted to get through with the whole business that I was sure that he meant what he said, and the fact he gave me those inducements to agree to the consent judgment, I was sure that’s what he wanted to do.”
Similarly, Sniderman testified:
"He created an atmosphere that let my guard down. He was willing to give me, through that capital account, the $10,000 to correct what I believed to be past mistakes on his part. I considered that he had in — I’m sorry, type of attitude. He spoke of knowing a lot of people, being in different businesses. Then, of course, saving the attorneys fees, spoke about saving the receiver’s costs and it was very expensive to keep the receiver. He said there’s no reason we can’t do it ourself. There were many discussions along these lines and I agreed to it.”
Nevertheless, defendant argues that any reliance was unjustified because of the atmosphere of distrust that had developed among the parties.
In Matteson v Weaver, 229 Mich 495, 499; 201 NW 473 (1924), the Supreme Court stated that "it does not lie with the perpetrator of a fraud to say that his victim was too credulous, and reposed too much confidence in those with whom he dealt and who assumed to have superior knowledge of the subject upon which they spoke”. We find that the trial court did not err in finding that the plaintiffs justifiably relied on Soble’s statements.
Defendant argues next that Mr. Soble’s refusal to agree to sell the property and sign a real estate listing agreement did not injure the plaintiffs because the signature of Herman Brodsky was also necessary for the listing agreement to be implemented. This argument ignores the fact that, once Soble refused to sign the listing agreement, it was useless for the plaintiffs to acquire Brodsky’s signature because the consent judgment gave Soble the power to absolutely veto any sale of the property. The law does not require a useless formality. Swain v Kayko, 44 Mich App 496, 501; 205 NW2d 621 (1973). The defendant’s argument also ignores the evidence that Brodsky was willing to sell. A letter that Gorman sent Soble requesting him to sign the listing agreement stated that Brodsky had agreed to sell the property and had suggested that the proceeds be placed in escrow pending resolution of the dispute. Thus, there was evidence that it was only as a result of Mr. Soble’s refusal to sign the listing agreement that the property was not listed for sale.
Defendant argues next that since no evidence was introduced establishing that there was a buyer ready, willing and able to purchase at a price greater than $675,000, the value of the property at the time of trial, it was not shown that the plaintiffs had been injured. Mr. Soble’s refusal to list the property, however, made it impossible for the plaintiffs to locate a purchaser. Plaintiffs’ expert testified that the property had a fair market value of $859,000 at the time the consent judgment was entered and that the value remained constant through July, 1975. He testified that by October, 1980, however, the fair market value had declined to $675,000, where it remained at the time of trial. In addition, there was evidence that a purchaser had been located by Soble himself in 1974. A letter sent by Soble through his attorney to Gorman in November, 1974, stated in part:
"I am writing to you at the request of Mr. Harold Soble. Mr. Soble has a potential buyer for the property concerned in the above matter at a price of $850,000 with $25,000 down and the balance to be paid within six (6) months. Before Mr. Soble can consider this transaction further, there will have to be a modification of the Consent Judgment.”
Thus, we find sufficient evidence for the trial court to find that the property could have been sold in a reasonable time for a price of $859,000 and that, as a result of Soble’s refusal to sell, the plaintiffs were injured when the partnership property declined in value.
Defendant argues next that the parties entered into a subsequent written agreement which extinguished the plaintiffs’ claim for fraud. Defendant introduced two exhibits at trial, one a carbon copy of the other, which provided:
"The undersigned agree to the following changes: (1) The land can be disposed of by the consent of Herman Brodsky and Benjamin Gorman. The consent of Harold Soble is not necessary.
"(2) The distribution formula to be changed to the following: All five (5) remaining partners, namely, Harold Soble, Herman Brodsky, Benjamin Gorman, Irving Sniderman and Max Schultz must agree on the method and formula of the cash distribution when the property is sold. The money to remain in the bank with all five (5) signatures until it has been agreed to distribution by all five (5) partners.”
The original of the writing bears the signature of Soble, but not the signature of Gorman. Mr. Soble testified that Gorman’s signature appeared thereon but that it had been removed. A close examination of the exhibit, however, reveals that Soble’s signature appears at the very bottom of the page. It does not appear that the signature line has been tampered with. The carbon copy contains the signatures of both Soble and Gorman. Assuming that the documents are genuine, the plaintiffs have not waived their right to bring this action. The agreement purports to do no more than to provide for a sale of the property pending resolution of the parties’ dispute. It does not provide for the release of plaintiffs’ claim.
Further, when the defendant introduced the exhibits, plaintiffs objected on the basis of MRE 408, arguing the writings related to offers of settlement and were not admissible. Defendant responded that the ágreement was not being introduced for the purpose of establishing settlement, but rather to demonstrate Soble’s state of mind concerning the sale of the property. Since the evidence was accepted solely for that purpose, the defendant cannot now claim that the agreement is proof that plaintiffs released their claims.
Defendant’s next argument is that the plaintiffs were required to mitigate their damages and, since they failed to find a purchaser for their property following the alleged refusal of Soble to sell, they failed to comply with this requirement. In contract actions the injured parties must make every reasonable effort to minimize their damages, however, the burden is on the defendant to establish that the plaintiffs have not used such efforts. Williams v American Title Ins Co, 83 Mich App 686, 697; 269 NW2d 481 (1978). The evidence introduced at trial establishes that the plaintiffs were at all times willing to sell the property but were unable to do so without Soble’s consent. In July, 1974, Gorman presented Soble with a real estate listing agreement which Soble refused to sign. Gorman approached Soble on many other occasions, attempting to persuade him to sell. On each occasion, Soble indicated that he would not permit a sale unless the plaintiffs agreed to modify the distribution formula contained in the consent judg ment. Plaintiffs’ duty to mitigate damages did not require them to give up their rights under the consent judgment nor did it require them to take any action which was not within their power to do.
Finally, we address defendant’s argument that the trial court erred in its computation of damages. The court found that, had Soble’s representations been true, the property would have sold for $859,000 at the time the consent judgment Was entered. It awarded the Gormans $335,900.98, plus interest, and awarded Sniderman $42,786.80, plus interest. The amounts awarded represented the amounts that the plaintiffs would have realized had the sale of the partnership property taken place as promised and had the proceeds been distributed in accordance with the distribution formula contained in the consent judgment. This award would have been correct if the value of the plaintiff’s partnership interests were reduced to zero as a result of Soble’s misconduct and if there had been no partnership liabilities. By the testimony of plaintiff’s own witness, however, the value of the partnership property was $675,000 at the time of trial. The effect of the trial court’s actions was to order a forced sale of the plaintiffs’ partnership interests to the defendant. Plaintiffs did not request such relief. Even assuming that the plaintiffs had requested dissolution of the partnership, the plaintiffs would not have been entitled to force defendant to purchase their interests. See MCL 449.38; MSA 20.38. Thus, recovery should have been limited to damages using the difference between the actual value of the partnership at the time of trial and the value it would have possessed if Soble’s representations had been true. See D'Al-essandro v Vander Hooning, 365 Mich 66, 73; 112 NW2d 114 (1961).
Thus, we remand on the issue of damages alone. On remand, the trial court may either compel a dissolution of the partnership or order an accounting of the partnership interests. If a dissolution is ordered, the court shall compel the sale of all partnership assets and payment of all its debts. The proceeds shall then be distributed pursuant to the original consent judgment. Plaintiffs’ award against defendant shall then be computed by the trial court determining what plaintiffs would have received had the partnership property originally been sold for $859,000 and the partnership properly dissolved and then subtracting what the plaintiffs received following the court-ordered sale and dissolution.
In lieu of ordering a dissolution, the trial court may order an accounting of the partnership’s assets and liabilities as of the date of the accounting. Plaintiffs’ award against defendant shall then be computed by determining what the value of the plaintiffs’ partnership interests would have been had the partnership property been sold for $859,-000 and subtracting the value of plaintiffs’ current partnership interests.
Remanded. No costs, neither side having prevailed in full. We do not retain jurisdiction. | [
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Danhof, C.J.
Plaintiff appeals as of right from an order of the trial court granting summary judgment in favor of defendants pursuant to GCR 1963, 117.2(1).
Plaintiff is an assistant professor of criminal justice at Michigan State University. On December 5, 1980, the board of trustees of the university (hereináfter defendant) approved a 2.5-day layoff for all university employees, except those performing essential services. Employees were given the option of having their pay loss by virtue of the layoffs deducted in a lump sum, or having the amount withheld in six equal monthly installments. Plaintiff chose the latter option and $35.65 was withheld in January, 1981, and each subsequent month for five months thereafter.
On February 6, 1981, plaintiff brought this action in the Court of Claims seeking to have the withholding enjoined. He claimed that his contract of employment with the university for the 1980-1981 academic year required that the university pay him a fixed sum of $17,839 and that the 2.5-day layoff constituted a breach of the agreement.
Defendant responded by claiming that the layoff was necessitated by a 30 million dollar cutback in state appropriations to the university and that the university was empowered to order the layoffs in the event of such a financial crisis.
The trial court, relying on Fricke v Grand Rapids, 278 Mich 323; 270 NW 697 (1936), agreed with defendant’s argument and granted its motion for summary judgment.
A motion based on GCR 1963, 117.2(1) chal lenges the legal sufficiency of a complaint and must be considered by an examination of the pleadings alone. A reviewing court is obligated to accept as true all well-pled facts in the complaint and to determine whether the claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Trommater v Michigan, 112 Mich App 459, 463; 316 NW2d 459 (1982).
In Fricke v Grand Rapids, supra, the city, faced with a serious financial crisis, decided to reducesubstantially the number of municipal employees. Plaintiffs brought a mandamus action claiming that the city’s action was unlawful. The trial court upheld the city’s decision. The Supreme Court affirmed the trial court’s ruling:
"Authorities universally sustain the proposition that a city can dismiss a civil service employee by abolishing the position which the employee holds. Smith v Flint City Comm, 258 Mich 698 [242 NW 814 (1932)], and cases cited therein; and that a city may abolish a position for bona £de reasons of economy, Slavin v City of Detroit, 262 Mich 173 [247 NW 145 (1933)]. It is conceded by plaintiffs that if an office or position in the city government is abolished for bona £de reasons of economy, the holder of that position is not entitled to a hearing before the civil service board under the civil service provisions of the city charter; and that the city manager is the person to decide how many patrolmen should be at any given time in the police department.
"Considering these general principles of law in connection with the charter provisions above mentioned, we come to the conclusion that the principal issue involved in this cause is the matter of good faith on the part of the city officials in making the dismissals complained of. We think the trial court came to the correct conclusion in finding an absence of bad faith on the part of the city officials in reducing the police force.” 278 Mich 329-330.
We agree with the trial court that the above-cited cases support the university’s contention that it may reduce its work force for bona fide reasons of economy. Const 1963, art 8, §5, vests the university board of trustees with the authority to control the direction of all expenditures from the institution’s funds. Furthermore, MCL 390.107; MSA 15.1127 empowers the board to fix the salaries of university employees and to remove employees when the interest of the university so requires. These provisions clearly demonstrate that, as a general proposition, the university does have authority to order layoffs during periods of financial crisis. However, despite the foregoing, we do not agree with the trial court’s determination that the university was free to lay off the plaintiff in this case.
None of the above-cited cases involved the layoff or termination of employees who were covered by employment contracts which provided for a fixed term of employment or guaranteed the payment of a sum certain. Plaintiff’s complaint alleges that he entered into a written agreement with the university whereby the university agreed to pay him the sum of $17,839 for the academic year which extended from October 1, 1980, through September 30, 1981. Where an employee enters into a contract with an employer whereby the employer agrees to pay the employee a fixed amount for his services, the employer is required to pay such amount or he may be held liable in an action for breach of contract. See Pryor v Briggs Mfg Co, 312 Mich 476, 482-483; 20 NW2d 279 (1945). Whether such a contract exists is a question of fact which may not be decided by the trial court in passing upon a motion for summary judgment based on GCR 1963, 117.2(1). Paxson v Cass County Road Comm, 325 Mich 276, 282; 38 NW2d 315 (1949); Hall v Detroit, 383 Mich 571, 575; 177 NW2d 161 (1970).
Defendant contends that, even if plaintiff’s contract of employment required the payment of a fixed amount, this Court’s recent decision in Crider v Michigan, 110 Mich App 702; 313 NW2d 367 (1981), compels the finding that the university could unilaterally modify the terms of the agreement because of the serious financial crisis facing the university. We disagree. In Crider, supra, plaintiffs challenged a decision of the State Civil Service Commission subjecting them to a series of one-day layoffs during 1981. Although the Court ruled that the seriousness of the financial crisis which faced the state justified the commission’s decision to order the layoff, the Crider decision does not otherwise support defendant’s position. The employees who were subject to the layoffs discussed in Crider, supra, were not protected by a contract of employment which limited the right of the employer to order such layoffs. On the contrary, those employees who were protected by a collective-bargaining agreement which limited the ability of the state to order such layoffs were specifically exempted from the commission’s order. With , respect to the exemption, the Court stated the following:
"An employer such as the CSC is bound by any contractual agreement into which it has entered and such an employer would, in fact, commit an unfair labor practice if it unilaterally avoided any contractual obligation. By exempting from layoff only those employees covered by collective-bargaining agreements that limit the right to lay off, the CSC has merely attempted to insure that its contractual obligations are honored.” 110 Mich App 722.
Therefore, rather than supporting defendant’s claim that it had the right to order the layoff of plaintiff, Crider, supra, supports plaintiff’s claim that no such authority existed.
Defendant claims that, even if it may otherwise obligate itself to provide job security to an employee for a fixed period of time, a governmental agency may not contract away its power to manage itself during a period of financial crisis. Therefore, it claims that a contractual provision which precludes it from ordering the layoff of its employees during such a period is void as against public policy. In support of its contention, defendant relies on DeLury v City of New York, 51 App Div 2d 288; 381 NYS2d 236 (1976). In DeLury, supra, New York sanitation workers were laid off due to serious financial difficulties facing the city. The workers claimed that the layoff violated their collective-bargaining agreement with the city which provided for guaranteed employment during the term of the contract. The Court denied the workers’ claim, stating that a provision in the city code, which existed at the time the agreement was entered, precluded the city from entering into such an agreement. Defendant has pointed to no provision in the Michigan Constitution, or any statutory provision, similar to the provision involved in DeLury, supra. Since DeLury, supra, did not hold that a contractual provision for job security could not be given effect in the absence of such a provision, DeLury, supra, does not support defendant’s claim.
Even if DeLury, supra, does support defendant’s claim, its continued validity is suspect following Yonkers Bd of Ed v Yonkers Federation of Teachers, 40 NY2d 268; 386 NYS2d 657; 353 NE2d 569 (1976). In Yonkers, supra, the school district en tered into a collective-bargaining agreement with defendant which contained a job security clause and which required that disputes concerning the agreement be submitted to binding arbitration. In 1975, faced with sharp cuts in its budget made by the City of Yonkers, plaintiff decided to lay off a number of teachers. The teachers responded by filing a demand for arbitration. The school district brought an action to stay arbitration claiming that public policy rendered void the job security clause contained in the collective-bargaining agreement. The trial court agreed. It held that the city’s power to discharge employees in the face of financial disaster must remain unfettered. The highest appellate court of New York reversed. It held that a job security clause contained in an employment contract entered into with a governmental agency is valid as long as it is explicit and of reasonable duration. The Court ruled that the contract, which was three years in duration and which expressly protected the teachers from abolition of their positions due to budgetary difficulties, was a binding obligation on the school district and that the dispute was subject to arbitration.
In the present case, while we agree with defendant that enforcement of the contract will cause the university some hardship, we do not agree that such an agreement violates public policy. A contractual agreement which remains binding on the university during times of economic difficulty insures that the employee need not fear being put out of a job. The benefits inherent in such an agreement extend not only to the employee, but also to the university. It insures that the university will be able to obtain qualified instructors whose decision whether to accept employment with the university will not be adversely affected by concern that the agreement they enter into in good faith at the time that they accept employment will be subject to unilateral change any time thereafter that the Legislature decides to cut appropriations. Therefore, in our opinion, the university’s obligations as they relate to contracts of employment do not merit different treatment than do its other contractual obligations. The decision of the trial court granting defendant’s motion for summary judgment is therefore reversed.
Plaintiff also complains that his complaint stated a claim that the trustees’ action in ordering the layoff constituted an impairment of the university’s contractual obligations in violation of US Const, art I, § 10; Const 1963, art 1, § 10. Since the facts alleged in support of that claim, and the damages which are claimed as a result of the alleged violation, are identical to those claimed for the alleged breach of contract, we find it unnecessary to determine whether the claimed Contract Clause violation would otherwise state a valid cause of action.
Reversed and remanded. No costs, a public question being involved. | [
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Per Curiam.
These consolidated cases arose when plaintiff sued defendants regarding an agree ment for the sale of stock. Following a bench trial which failed to grant plaintiff the entire relief he had requested, plaintiff filed appeals in both cases. Defendants cross-appealed and moved to dismiss plaintiff’s appeals for failure to file the transcripts of the lower court proceedings. This Court granted defendants’ motions. Plaintiff’s appeals were dismissed without prejudice. Plaintiff applied for delayed appeals in both cases, and leave to appeal was granted on February 23, 1981. Due to the complicated factual scenario of these cases, we will discuss the facts only as they relate to the pertinent issues on appeal.
Plaintiff’s first issue concerns a 1966 sales contract between plaintiff’s assignor, Graham and Associates, Inc., and defendant Lud in which Lud agreed to sell to Graham certain stock in a Michigan corporation organized to construct the Commerce Center in downtown Lansing. The agreement required Graham to make a down payment, followed by periodic payments, with the stock being held in escrow until all the necessary payments had been made. The agreement also provided that Lud and his wife were to personally execute the construction mortgage needed for the proposed building and that their failure to do so would result in a forfeiture of $20,000 of the purchase price of the stock. In 1971 Lud’s shares of stock were returned to him pursuant to a default clause in the escrow agreement. Plaintiff argues that the trial court erred in not awarding plaintiff the $20,000 credit for Lud’s failure to personally obligate himself on the construction mortgage.
It is well established that the law does not favor a forfeiture and that in order for plaintiff to claim that a forfeiture had occurred he was required to make a demand on defendant Lud to perform. In Collins v Collins, 348 Mich 320; 83 NW2d 213 (1957), the Michigan Supreme Court quoted with approval the rule it had established in Zadigian v Gard, 223 Mich 147, 152-153; 193 NW 783 (1923), regarding forfeitures:
" 'The law does not favor forfeitures, and he who plants himself upon a forfeiture must look well to where he stands. It is true the law gives a vendor the benefit of remedies for defaults of a vendee, but the vendor may waive such remedies, expressly or by implication. If a vendee in default is recognized by the vendor as having existing rights under the contract, the default becomes quiescent, and a valid forfeiture will have to await a new default, or at least a quickening of the old one by demand for performance of the contract and reasonable opportunity afforded such a vendee to awaken from the repose of imagined security.’ ” (Citations omitted.) Collins, supra, 327-328.
Defendant Lud admitted that neither he nor his wife signed the construction mortgage. Lud claimed that plaintiff never demanded that he sign the mortgage; plaintiff alleged that the demand was made but that Lud refused to sign it. There was no other evidence introduced on this issue. The trial court’s resolution of this matter was dependent upon its assessment of the credibility of both Lud and plaintiff since they were the only witnesses who testified regarding whether Lud had been requested to sign the construction mortgage. The trial court found that neither of the two witnesses was particularly credible. In finding that the result was a "standoff”, the trial court held that plaintiff had failed to satisfy his burden of proof. The trial court is in a unique position to observe the witnesses and assess their credibility accordingly. This Court has consistently held that, where a trial court’s findings turn on the credibility of witnesses and are consistent with the evidence, we will not upset those findings. Shields v Collins, 83 Mich App 268, 270; 268 NW2d 371 (1978); Warren v June's Mobile Home Village & Sales, Inc, 66 Mich App 386, 389; 239 NW2d 380 (1976).
Even if we were to find that defendant Lud did refuse to sign the construction mortgage, it appears to us that he was justified in so doing. The contract required him to sign the mortgage in accordance with the commitment then held with the Bank of Lansing. That commitment provided for a loan of $3.5 million with an interest rate of 6-1/4%. It also provided for a closing fee of $25,000, of which $15,000 had been paid prior to the time the 1966 agreement was entered into. The commitment was withdrawn and a second commitment was entered into in April of 1967. The second commitment provided for an increased interest rate and a substantially higher closing fee.
It is a matter of general suretyship law that a surety will be released, even as against the obligee, where his risk is materially increased by some action of the obligor. 74 Am Jur 2d, Suretyship, §34, p 35. Furthermore, where a substitution of obligors occurs, such a change usually operates to release the surety from his obligation. Farmers Co-Operative Creamery Co v Huhn, 241 Mich 23, 27; 216 NW 370 (1927); Miller Industries, Inc v Cadillac State Bank, 40 Mich App 52, 58; 198 NW2d 433 (1972). The rationale for these rules is that a change in the obligation by the substitution of obligors has the effect of creating a new contract to which the surety never intended to become liable. Here, the construction mortgage was not signed by Lud, so a suretyship contract was not created. However, we believe the foregoing principles still apply. The increased interest rate and closing fee clearly constituted a change in the contract materially increasing Lud’s possible exposure to liability. We find that Lud was required to sign the construction mortgage only in accordance with the commitment held with the Bank of Lansing. When that commitment was withdrawn, Lud’s obligation to sign the construction mortgage was also terminated.
Plaintiff’s second issue on appeal is that a supplemental agreement between plaintiff and defendant Lud in which Lud agreed to a proportionate distribution of the stock held in escrow as payments were received was binding on behalf of the other defendant shareholders who had sales agreements with plaintiff. Defendant Lud counters that he did not sign the agreement on behalf of the other defendants, that the other defendants were not even aware that he was signing the agreement, and that, in any event, he effectively rescinded the agreement the day after it was executed.
We find that a careful reading of the supplemental agreement demonstrates that it does not purport to bind anyone other than Lud. Although Lud authorized the release of the stock as payments were made pursuant to the two buy-sell agreements between plaintiff and the defendants, the writing does not state that it is binding on anyone other than Lud. The mere fact that the agreement refers to the prior buy-sell agreements does not require a finding that it was intended to bind all of the parties who were subject to the earlier agreements. See Weeks v Slavik Builders, Inc, 24 Mich App 621, 623; 180 NW2d 503 (1970), aff'd 384 Mich 257 (1970).
Furthermore, we find that defendant Lud had no actual or apparent authority to act on behalf of defendants Lacchia, Rogozinski, and Gadaleto. The evidence regarding Lud’s lack of actual authority to represent these defendants was uncontroverted. We also find that there was no evidence to suggest that Lud had any apparent authority to act on behalf of these three defendants. See Michigan National Bank of Detroit v Kellam, 107 Mich App 669, 679-680; 309 NW2d 700 (1981). Although defendants Láveme and Geraldine Curtis, Roether, and Divietri gave Lud written authorization to represent them, we find that the supplemental agreement regarding the proportionate distribution of stock did not purport to bind these parties, and there was no evidence presented establishing that Lud was acting on their behalf in this transaction.
Defendant Lud’s argument that he effectively rescinded the supplemental agreement is without merit. The trial court ruled that Lud’s attempted rescission was untimely and that Lud lacked adequate grounds for rescission. We find no error in this decision. Lud was fully aware of any misrepresentations plaintiff may have made concerning his involvement with Graham and Associates before he, Lud, signed the agreement, and the attempted rescission was four years late. Under these circumstances, rescission was unavailable. Dehring v Northern Michigan Exploration Co, Inc; 104 Mich App 300, 307-313; 304 NW2d 560 (1981), Livingston v Krown Chemical Mfg, Inc, 50 Mich App 153, 158-159; 212 NW2d 775 (1973), aff'd 394 Mich 144; 229 NW2d 793 (1975).
Plaintiffs last issue on appeal is that the trial court erred in not granting plaintiff the right to redeem the stock, pursuant to MCL 440.9506; MSA 19.9506, after plaintiff defaulted in payments. Plaintiff argues that, since the repossessed stock was being held as security for plaintiff’s performance, the defendants were bound by the requirements of Article 9 of the Uniform Commercial Code which requires a secured party to notify the debtor of his intent to retain the collateral in satisfaction of the indebtedness. Defendants argue that they complied with the notice requirement of Article 9 and that plaintiff failed to redeem the stock in a timely fashion thereafter.
MCL 440.9503; MSA 19.9503 provides in part:
"Unless otherwise agreed a secured party has on default the right to take possession of the collateral.”
It is clear under the sales agreements that the defendants were entitled to take possession of the stock upon plaintiff’s default. Section 9506 of Article 9 permits the debtor to redeem the collateral before the obligation is discharged under § 9505(2). However, to invoke that right, the debtor must tender performance of all obligations secured by the collateral as well as the expenses reasonably incurred by the secured party in retaking the collateral. MCL 440.9506; MSA 19.9506; Rogers v Associates Commercial Corp, 129 Ariz 499; 632 P2d 1002 (1981). Plaintiff offered no evidence that he has complied with the tender requirement and, thus, redemption is unavailable. Furthermore, we find that plaintiff has waived his right to redemption. Plaintiff did not make a claim for redemption until the time of trial in 1979, despite the fact that the defendants’ answer to plaintiff’s complaint in 1972 and their answer to his amended complaint in 1975 gave plaintiff written notice that the defendants intended to retain possession of the stock pursuant to the default provision in the contract. We find that the trial court was correct in not granting plaintiff the right to redeem the stock.
Defendant Lud’s cross-appeal raises the issue of whether plaintiff’s claims are barred because of his fraudulent misconduct. Lud’s claim of fraud is based upon the assertion that plaintiff failed to disclose his interest in the purchasing corporation, Graham and Associates, Inc., and that he fraudulently concealed that information from the defendants. The trial court found that Lud knew that plaintiff was "involved up to his ears”. Again, a trial court’s findings of fact regarding the credibility of witnesses will not be upset unless found to be clearly erroneous. Shields, supra; Warren, supra. We find no error in the trial court’s conclusion that, since Lud was aware of plaintiff’s fraudulent misconduct in concealing information from the defendants, the elements of fraud were not satisfied.
Affirmed. Costs to defendants in Docket No. 54559, and no costs in Docket No. 51336 and Docket No. 54558, neither party having prevailed in full. | [
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Per Curiam.
Defendant, Damon Blair Jackson, was charged with armed robbery of a jewelry store in Detroit and felony-firearm. The jury found defendant guilty of armed robbery, in violation of MCL 750.529; MSA 28.797, but not guilty of felony-firearm. Defendant was sentenced to not less than 20 years nor more than 30 years in prison, after which he appeals as of right, raising two issues.
First, defendant claims that the trial court erred reversibly by admitting into evidence photographs of the complainant, which were highly prejudicial and inflammatory. We disagree.
The applicable test is whether the trial court exercised sound discretion in permitting admission of photographs which might be inflammatory. The photographs were relevant and strong evidence in support of the prosecutor’s reliance upon the following portion of the statute:
"If an aggravated assault or serious injury is inflicted by any person while committing an armed robbery as defined in this section, the sentence shall be not less than 2 years’ imprisonment in the state prison.” (Emphasis added.)
Thus, in exercising her discretion, the trial judge did not err in admitting these photographs which were relevant, admissible, and appeared to have probative value.
Second, defendant claims that the prosecutor’s closing argument was so prejudicial as to constitute error requiring reversal. We note that defendant did not make any objection to the prosecutor’s closing argument or rebuttal argument at the time of trial. As a result, the trial judge did not have any opportunity to make a corrective instruction if, indeed, the prosecutor’s arguments constituted misconduct. While the prosecutor’s arguments verged upon rising to the level of the so-called civil duty argument that we have disapproved of, the proofs in this case were overwhelming and, consequently, we decline to find any miscarriage of justice.
Affirmed.
People v Myers, 30 Mich App 409, 429; 186 NW2d 381 (1971).
MCL 750.529; MSA 28.797.
People v Paintman, 92 Mich App 412; 285 NW2d 206 (1979), rev’d on other grounds 412 Mich 518; 315 NW2d 418 (1982).
People v Biondo, 76 Mich App 155; 256 NW2d 60 (1977), lv den 402 Mich 835 (1977). | [
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C. W. Simon, Jr., J.
Plaintiffs, Nicholas Szluha, a veterinarian and his wife, Diana, appeal as of right from an order entered in the Oakland County Circuit Court which affirmed the decision of the Zoning Board of Appeals of defendant Charter Township of Avon, interpreting the township’s zoning ordinance as permitting defendant Michigan Humane Society to construct an animal welfare complex in an area zoned 1-1, light industrial.
By letter of November 24, 1980, to the Avon Township Department of Planning and Zoning, David K. Wills, Executive Director of the Michigan Humane Society, indicated his organization’s strong desire to build "a center for animal welfare” at a particular site inside the township. This letter provided in pertinent part:
"This facility would include: a veterinary hospital, facilities for the housing of unwanted dogs and cats, a facility for the holding, care and treatment of disposed or injured wildlife. The facility would be aesthetically designed to promote natural surroundings and a low-key look.
"We are seeking an interpretation of the zoning definitions to see if light industrial, as the property is now zoned, will allow this type of use.”
The Humane Society’s request for an interpretation of the uses permissible in an 1-1, light industrial district was taken up by the zoning board of appeals for the township. Two public hearings were held, and, after these hearings, the zoning board of appeals determined that the proposed animal welfare complex constituted a permissible use of property zoned 1-1, light industrial, within the meaning of art XIII, § 1300 of the township zoning ordinance. The board specifically found:
"1) The use is similar to § 1300, ¶ 5 (other uses similar to above permitted uses).
"2) The use has the nature of 'storage’ as referred to in § 1300.
"3) The use has the nature of an industrial building.
"4) The use is located on a large parcel of property.
"5) It is recognized that the proposed use is not permitted in any other zoning district in the township.”
Some 15 months after the board of appeals interpreted the township zoning ordinance as permitting the Humane Society’s proposed use inside in 1-1 zoned parcel, plaintiffs instituted this action to halt the project. Following an expedited hearing on plaintiffs’ complaint, the circuit court affirmed the interpretation of the ordinance rendered by the zoning board of appeals.
Plaintiffs first contend that the zoning board of appeals granted the Humane Society a use variance under the guise of "interpretation”. A use variance permits the utilization of land in a manner otherwise proscribed by a zoning ordinance. Heritage Hill Ass’n, Inc v Grand Rapids, 48 Mich App 765, 768; 211 NW2d 77 (1973). The board of zoning appeals concluded, however, that Avon Township’s zoning ordinance permitted the Humane Society’s proposed use in an 1-1 district. The minutes of the zoning board of appeals show that whether the Humane Society should be granted a use variance was never discussed. Nor is there any indication on the record that the board used "interpretation” to allow a use which it actually believed was impermissible in an 1-1, light industrial district. Plaintiffs’ contention that a use variance was granted the Humane Society is merely a roundabout way of attacking the interpretation given to art XIII, § 1300 (Principal Uses Permitted in an 1-1 Light Industrial District) by the board of zoning appeals.
As the circuit court recognized, the Township Rural Zoning Act sets forth the standard of review for appeals from zoning board decisions:
"The decision of the board of appeals rendered pursuant to section 23 shall be final. However, a person having an interest affected by the zoning ordinance may appeal to the circuit court. Upon appeal the circuit court shall review the record and decision of the board of appeals to insure that the decision:
"(a) Complies with the constitution and laws of the state.
"(b) Is based upon proper procedure.
"(c) Is supported by competent, material, and substantial evidence on the record.
"(d) Represents the reasonable exercise of discretion granted by law to the board of appeals.” MCL 125.293a(l); MSA 5.2963(23a)(l).
It is apparently plaintiffs’ position that the zoning board of appeals lacks any discretion to interpret the zoning ordinance and, thus, the board’s decision did not comply with the constitution and laws of the state. However, pursuant to MCL 125.290; MSA 5.2963(20), each township board of zoning appeals is empowered to "act upon all questions as they may arise in the administration of the zoning ordinance”. In our opinion, this clearly includes the power to interpret the zoning ordinances which it must administer. Moreover, § 2103 of Avon Township’s zoning ordinance explicitly empowers the zoning board of appeals to interpret the ordinance text. Thus, the actions of the board were sanctioned by the laws of the state. MCL 125.293a(l)(a); MSA 5.2963(23a)(l)(a).
Plaintiffs also contend that, if the zoning board of appeals does have the power to interpret Avon Township’s zoning ordinance and did, in fact, engage in interpretation, rather than grant a disguised use variance, its decision must still be reversed because the record is "clearly inadequate” to support its determination. We disagree, and explicitly adopt the following excerpt from the lower court’s opinion as our own in determining that MCL 125.293a(l), subds (b) and (c); MSA 5.2963(23a)(l), subds (b) and (c) were fulfilled by the zoning board in this matter:
"A review by the court of the record of the board of appeals shows that the board gave fairly extensive consideration to the matter at two different meetings, one in December and one I have referred to in February of '81.
"That at the December meeting the board heard Mr. Wills of the Humane Society explain the project, opened the public hearing to hear from proponents or opponents to the project, questioned Mr. Wills on the project and voted to table the issue so that they could hear from Mr. Lehoczky, the Township Planning Consultant, and to allow time for members to review spe cial purpose uses, and to allow time for submitting further comment by any interested parties.
"At the February 9th meeting, the Township Planning Consultant — his recommendation was read to the board. Members of the audience were allowed time to speak on the matter. The Township Attorney stated that in his opinion, the subject site was compatible for the proposed use. Member Healy stated he thought the use would come under storage in the industrial district. The board voted that the animal welfare complex was a principal permitted use in a light industrial zoning district.
"Based on those proceedings, there appeared to be competent, material, and substantial evidence on the record to support the board’s findings as required by statute. Therefore, additional evidence from the board will not be remanded.”
We next address whether the zoning board of appeals interpretation of the permissible uses in a district zoned 1-1, light industrial, constitutes a reasonable exercise of the discretion granted to it. A zoning ordinance must be reasonably construed with regard to the objects sought to be attained and the overall structure of the zoning scheme. Prevost v Macomb Twp, 6 Mich App 462, 467; 149 NW2d 453 (1967), lv den 379 Mich 768 (1967).
The zoning board of appeals recognized that an animal welfare complex was not explicitly identified as being a permissible use in any of Avon Township’s zoning districts. Consequently, the board carefully considered whether the use was sufficiently similar to any of the uses specifically allowed in any of the zoning districts. The zoning board ultimately concluded that an animal center of the magnitude proposed by the Humane Society —a facility which would house up to 18,000 domestic and wild animals annually — had characteristics of a storage facility and was more like an indus trial building than a retailing business which might be found in a district zoned for nonindustrial businesses.
The zoning board of appeals also recognized that an ordinance which has the effect of totally prohibiting a particular land use within a township is impermissible in the absence of special circumstances. MCL 125.297a; MSA 5.2963(27a). See, also, Kropf v City of Sterling Heights, 391 Mich 139, 155-156; 215 NW2d 179 (1974).
Noting the fact that art XIII, § 1300.5 permits uses in an 1-1 industrial district similar to those specifically delineated in the ordinance, the fact that none of the zoning districts explicitly permitted the Humane Society to construct its animal welfare complex, and the fact that "restrictions contained in the ordinance under industrial zoning are protective to the surrounding neighborhoods”, the zoning board of appeals concluded that the proposed animal welfare complex was permissible in an 1-1, light industrial district.
Plaintiffs’ argument that the zoning board’s determination was not a reasonable exercise of its discretion centers on the fact that the Humane Society’s facility would include an in-house veterinary clinic. Although plaintiffs fail to specify in just what zoning district Avon Township permits veterinary facilities to operate, they imply that this is a permissible use in a district other than an 1-1, light industrial. The zoning board of appeals found, however, that the primary purpose of the Humane Society’s animal welfare complex was not to provide veterinary services. Rather, the zoning board determined that the veterinary clinic would constitute a small portion of the total complex and was permissible as an incidental or accessory use. The Avon Township Zoning Ordinance specifically permits such accessory uses in 1-1, light industrial, districts. Art XIII, § 1300.4.
Decisions by a zoning board of appeals of the type involved in this matter are largely discretionary. While the circuit court reviews these decisions de novo on the record, considerable weight is accorded the findings of fact of the board of appeals. Abrahamson v Wendell, 72 Mich App 80, 83-84; 249 NW2d 302 (1976). The primary reason for this deference to the findings of the board of appeals is obvious — its members are local residents who reside in the township and who possess a much more thorough knowledge of local conditions, current land uses, and the manner of future development desirable for those who reside in the township. In this case, the zoning board of appeals obviously gave careful consideration to the issue at hand and assigned sound reasons for interpreting Avon Township’s ordinance as it did. As the circuit court held below, we find that the interpretation constitutes a reasonable exercise of discretion, comporting with both state law and the local zoning ordinance. MCL 125.293a(l)(d); MSA 5.2963(23a)(l)(d).
Plaintiffs’ final claim on appeal is that, because the Humane Society did not obtain a building permit for, or begin operation of, its animal welfare complex within one year of the zoning board of appeals interpretation allowing the complex to be constructed in an 1-1 zoned district, the township no longer has authority to permit such a use without further action by the zoning board of appeals. Plaintiffs rely on art XXI, § 2106 of the Avon Township ordinance as support for its position. On this issue, the circuit court held:
"The question of the one year delay in the utilization of the use found by the board back in February, doesn’t have application here. It has application to the granting of a variance; after the passage of a year there must be a new application. Here the fact that a board makes a decision as to the application of a particular existing use in a zone, the fact that a year goes by or any period goes by, doesn’t in and of itself reverse that earlier decision that has been made by the board in exercising its discretion as to where a given operation belongs under the existing uses.”
We agree with the lower court that an interpretation by the zoning board of appeals does not automatically expire after one year. Such a construction of art XXI, § 2106 of the Avon Township zoning ordinance would be illogical in that it would allow the same language in the same zoning ordinance to be interpreted to mean different things from year to year.
Affirmed. Defendants may tax costs.
The Township of Avon filed a motion for accelerated judgment in part based on the premise that plaintiffs lacked standing to enjoin the project. Plaintiffs are not abutting property owners to the parcel in dispute. Rather, plaintiff Nicholas Szluha operates a veterinary clinic two blocks from this parcel. A substantial question exists as to whether plaintiffs are aggrieved parties who enjoy a sufficient interest by virtue of their apparent desire to restrain competition to attack the zoning board of appeals actions. See Western Michigan University Bd of Trustees v Brink, 81 Mich App 99, 105; 265 NW2d 56 (1978); Commodities Export Co v Detroit, 103 Mich App 205; 303 NW2d 7 (1981) (Bronson, J., dissenting), lv den 411 Mich 1021 (1981). However, since the standing question is not clear-cut and since neither defendant filed a proper claim of appeal or cross-appeal, we decline to resolve this matter on the issue of standing.
The complaint filed by plaintiffs did not allege that the board had impermissibly granted a use variance. Rather, in their complaint, plaintiffs forthrightly acknowledged that the board had interpreted the zoning ordinance, albeit incorrectly in their opinion.
In fact, plaintiffs make no allegations that the zoning board of appeals did not follow "proper procedure”, independent of their claims that the board actually granted a use variance and did not compile an adequate record for its determination.
Minutes of the Avon Charter Township Zoning Board of Appeals public hearing held on February 9, 1981.
In Quigley v Dexter Twp, 390 Mich 707; 213 NW2d 166 (1973), the Supreme Court rendered an opinion which can be read as indicating that the lower courts should not accord any special weight to a zoning board of appeals findings. If this is what the Supreme Court meant in Quigley, we note a significant amendment to the Township Rural Zoning Act after Quigley which would suggest that deference should be given to a zoning board’s findings if, indeed, the Supreme Court did mean to say the contrary in Quigley. In Quigley, in determining that the circuit court had a duty to conduct a de novo review of the township zoning board’s findings of fact, the Court emphasized that MCL 125.293; MSA 5.2963(23) specifically provided that decisions of the township zoning boards were not final. However, the Legislature, by 1978 PA 637, § 1, effective March 1, 1979, added § 23a, MCL 125.293a; MSA 5.2963(23a), to the Township Rural Zoning Act, and this section explicitly provides that decisions by a township zoning board of appeals are final. | [
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Per Curiam.
Plaintiff, A. C. Hoyle Company, appeals as of right from an April 13, 1982, order of partial summary judgment against it pursuant to GCR 1963, 117.2(1), failure to state a claim upon which relief can be granted.
In its complaint plaintiff alleged that it had entered into a contract with Bethlehem Steel Corporation to supply deck machinery for four ocean-faring oil tankers which Bethlehem was building. The machinery to be supplied by plaintiff was designed to be hydraulically powered.
Plaintiff contracted with Vickers, a division of the defendant corporation, for the design, manufacture, and delivery of 60 hydraulic motors to be incorporated into the system powering the deck machinery. Defendant, however, failed to deliver the motors according to the contracted delivery schedule, and the motors, when delivered and installed, failed to conform to the agreed-upon specifications. Defendant admitted both these allegations.
Plaintiff alleged that it was not able to cancel the contract with defendant because the deck machinery was designed solely for the application of the defendant’s motors and the urgencies of Bethlehem Steel’s sailing dates did not allow for the substitution of other hydraulic motors.
Plaintiff further alleged:
"[I]n an effort to remedy Sperry-Vickers’ breach of contract and honor its contract with Bethlehem Steel Corporation, Hoyle was required to expend considerable time and expense in correcting the defective SperryVickers split-rise motors; was required to make substantial engineering revisions; was required in incur additional costs from subcontractors; was required to secure substitute subcontractors at a greater expense and cost to complete portions of the contract and that these damages amounted to a sum of money in the excess of one hundred ninety thousand ($190,000.00) dollars and were a direct proximate cause of Sperry-Vickers’ breach of contract.”
Plaintiff did not allege that the motors were themselves damaged by virtue of their defect, nor did plaintiff allege that the motors caused physical injury to persons or other property.
In its complaint plaintiff sought damages under three theories: breach of contract (Count I), breach of express and implied warranties (Count II) and negligence (Count III). Defendant moved for partial summary judgment as to the negligence count. In that count, plaintiff alleged:
"2. The defendant owed a duty to plaintiff to properly design the split-rise MHT hydraulic motors, to provide correct technical data to plaintiff, to inform plaintiff of any known defects in its equipment, to properly manufacture the MHT motors, to use materials free of any defects of any nature, and the duty to maintain adequate control.
"3. The defendant, in violation of these duties owed plaintiff, did negligently design the split-rise MHT hydraulic motors, did negligently provide erroneous tech nical data to plaintiff, which caused plaintiff to incorporate Sperry-Vickers’ equipment in the winch units, were negligent in failing to inform plaintiff of any known defects in its equipment, prior to the failure of same alleged herein, and additionally were negligent in failing to properly manufacture the MHT motors, were negligent in using defective materials and were negligent in failing to maintain adequate quality control.”
The trial court, in reliance on McGhee v General Motors Corp, 98 Mich App 495; 296 NW2d 286 (1980), granted defendant’s motion and dismissed the negligence count.
In McGhee, plaintiff purchased a used truck tractor from defendant. While plaintiff was working on the tractor’s transmission, the cab fell from the frame to the ground and sustained substantial damage. Plaintiff brought an action for damages against defendant, claiming breach of express and implied warranties, fraud, and negligence. This Court affirmed the trial court’s entry of summary judgment dismissing all counts.
Regarding dismissal of the negligence count, the Court held that "no cause of action is stated in the complaint, where the foundation of the relationship between the parties is contractual and no personal injury or damage to property other than the subject goods themselves is alleged”. In so holding, the Court adopted the position expressed in S M Wilson & Co v Smith International, Inc, 587 F2d 1363, 1376 (CA 9, 1978):
" 'Where the suit between a non-performance seller and an aggrieved buyer and the injury consists of damage to the goods themselves and the costs of repair of such damage or a loss of profits that the deal had been expected to yield to the buyer, it would be sensible to limit the buyer’s rights to those provided by the Uniform Commercial Code. See Keeton, Torts, Annual Survey of Texas Law, 25 SW L J 1, 5 (1971); Franklin, When Worlds Collide: Liability Theories and Disclaimers In Defective-Product Cases, 18 Stan L Rev 974, 996-997, 1012-1014 (1966). To treat such a breach as an accident is to confuse disappointment with disaster. Whether the complaint is cast in terms of strict liability in tort or negligence should make no difference.’ ” McGhee, supra, p 505.
The instant case is an even more compelling one for application of the rule in McGhee than was McGhee itself. Underlying the tort doctrine of products liability is the policy of allocating the risk of dangerous or unsafe products to the manufacturer rather than the consumer. McGhee, supra, pp 505-506, quoting Mid-Continental Aircraft v Curry County Spraying Service, Inc, 572 SW2d 308, 312 (Tex, 1978). See also Cova v Harley Davidson Motor Co, 26 Mich App 602, 615; 182 NW2d 800 (1970):
"The 'product liability’ of the manufacturer, and the corresponding right of the consumer, is simply the liability which * * * the law imposes on a manufacturer in favor of a consumer for loss suffered by reason of a defective product attributable to that manufacturer.” (Footnote omitted.)
Products liability law also serves as a means to avoid the privity requirement in contract actions, see Cova, supra, pp 604-605, and as an inducement to manufacturers to design and produce safe products, Calabresi and Hirschoff, Toward a Test for Strict Liability in Torts, 81 Yale L J 1055, 1068 (1972).
None of these policies would be served in the instant case, which involves contracting parties of relatively equal economic strength who, in a commercial setting, bargain for the specifications of the product. Under such circumstances, it was held in Kaiser Steel Corp v Westinghouse Electric Corp, 55 Cal App 3d 737; 127 Cal Rptr 838 (1976), that the plaintiff buyer was not entitled to bring an action in tort. The court’s reasoning is persuasive and applicable to the facts of this case:
" '[T]he adequacy of sales law controls the use of tort law, since the need to resort to tort law depends upon the extent to which sales law does or does not afford protection to a disappointed buyer.’ (Comment, Manufacturer’s Responsibility for Defective Products: Continuing Controversy Over the Law To Be Applied, 54 Cal L Rev 1681, 1690-1691; Kessler, The Protection of the Consumer Under Modern Sales Law, 74 Yale L J 262.)
"The case at bench presents a situation in which the statutory principles of sales warranties work well so that to apply the tort doctrines of products liability will displace the statutory law rather than bring out its full flavor. The plaintiff-buyer and defendant-seller are commercial enterprises contracting from positions of relatively equal bargaining power for a product designed to negotiable specifications and not furnished off the shelf. Privity is no artificial barrier to recovery. Since the specifications of the product are negotiable, the tort doctrine of products liability as between the buyer and seller is no inducement to design and produce a safe product. Since the manufacturer and buyer have bargained in a commercial setting not only for the product but also for the measure and mode of reimbursement for defects in the product, any societal interest in loss shifting is absent. Whether the loss is thrust initially upon the manufacturer or customer, it is ultimately passed along as a cost of doing business included in the price of the products of one or the other and thus spread over a broad commercial stream. (Calabresi and Hirschoff, Toward a Test for Strict Liability in Torts, 81 Yale L J 1055, 1070-1074.)” 55 Cal App 3d 747-748 (footnotes omitted).
Plaintiff argues, however, that the Court in McGhee ignored prior Michigan decisions recognizing a cause of action for negligence against a manufacturer of a negligently designed or manufactured product that causes economic loss as opposed to personal injury or property damage. See Spence v Three Rivers Builders & Masonary Supply, Inc, 353 Mich 120; 90 NW2d 873 (1958); Cova v Harley Davidson Motor Co, supra.
In neither Cova nor Spence, however, was there a contractual relationship between the plaintiff and the manufacturer of the defective product, nor was the Uniform Commercial Code, with its specific provisions detailing the rights and liabilities of the parties to a commercial sales contract, applicable. Accordingly, these decisions do not conflict with the holding in, or undermine the rationale of, McGhee.
Affirmed. | [
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Per Curiam.
Plaintiffs appeal as of right from a grant of summary judgment on their complaint against the state in the Court of Claims. We affirm.
Alice Painter and Wanda Broad were injured when the automobile they occupied was struck by a truck owned by the Lenawee County Road Commission. They sued the commission in circuit court. The commission and its insurer sought contribution from the state in a Court of Claims action. They alleged that the accident had been caused by the negligent design of the intersection at which it occurred. The state was required to maintain the intersection in reasonable repair by the terms of MCL 691.1402; MSA 3.996(102).
In granting defendant’s motion for summary judgment, the trial judge ruled that an action for contribution did not come within the exception to governmental immunity stated in MCL 691.1402; MSA 3.996(102). He relied on this Court’s opinions in Sziber v Stout, 111 Mich App 450; 315 NW2d 166 (1981), lv gtd 414 Mich 864 (1982), and Genesee County Road Comm v State Highway Comm, 86 Mich App 294; 272 NW2d 632 (1978). The conclusion that contribution under this statutory provision is allowed was reached in May v Wolverine Tractor & Equipment Co, 107 Mich App 163; 309 NW2d 594 (1981).
We adopt the reasoning used by the Court in Sziber, supra. We will not expand the scope of the exceptions to governmental immunity beyond the classes clearly covered by the language of the Legislature. Although this result may seem unfair, the same argument may be made about the results in many cases in which the government’s immunity is invoked. The design of a more equitable system is, however, for the Legislature.
Affirmed.
"Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency. The liability, procedure and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in section 21, chapter 4 of Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 of the Compiled Laws of 1948. The duty of the state and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel. No action shall be brought aginst the state under this section except for injury or loss suffered on or after July 1, 1965. Any judgment against the state based on a claim arising under this section from acts or omissions of the state highway department shall be payable only from restricted funds appropriated to the state highway department or funds provided by its insurer.” | [
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Per Curiam.
Defendant pled guilty to carrying a concealed weapon, MCL 750.227; MSA 28.424. Sentenced to from one to five years in prison, he appeals as of right.
On June 30, 1980, Officers Quinn and McNamara of the Detroit Police Department arrested defendant after a search of his person revealed a revolver. A warrant charging that defendant had committed the offense of carrying a concealed weapon was filed on July 1, 1980. A preliminary examination was conducted by Judge Dalton A. Roberson in Detroit Recorder’s Court. At the conclusion of the hearing, Judge Roberson dismissed the case on the ground that the search was illegal. The people did not appeal this ruling. On August 29, 1980, a second warrant was issued against defendant alleging the same offense. A preliminary examination was held before Judge George W. Crockett, Jr. Judge Crockett bound over the defendant and an information was filed. Subsequently, defendant moved to quash the information or, in the alternative, for an evidentiary hearing. Defendant argued that the prosecutor was "forum shopping” and that the second warrant was defective because it was not signed by Judge Roberson, the judge who dismissed the original warrant. The motion to quash was granted on the latter ground. The people did not appeal this ruling. On January 28, 1981, the prosecutor sought a third warrant against defendant alleging the same offense. Judge John H. Gillis, Jr., bound over defendant after a preliminary examination. On March 6, 1981, defendant pled guilty to the carrying a concealed weapon charge.
The defendant argues on appeal that the prosecutor’s repeated filings of warrants charging defendant with the same offense constituted harassment and judge shopping in violation of defendant’s right to due process of law.
We must first decide whether the defendant waived this claim by his plea of guilty. In People v Alvin Johnson, 396 Mich 424, 444; 240 NW2d 729 (1976), the Supreme Court recognized that a defense "grounded in the due process clause” is not waived by a guilty plea. The. defendant in the present case asserts such a right. The particular due process violation alleged has the effect of preventing the people from proceeding to trial against the defendant. If the people’s second or third attempt to prosecute defendant for the same offense infringed his right to due process of law, then the people are forever foreclosed from further prosecution, of the defendant for that offense and, as a result, could not bring defendant to trial. Thus, the right asserted, by defendant is not waived by a guilty plea:
"Whenever it is found that the result of the right asserted would be to prevent the trial from taking place we follow the lead of the United States Supreme Court and hold a guilty plea does not waive that right.” 396 Mich 444.
We now proceed to the merits of defendant’s claim. This Court has recognized that repeated prosecutions of a defendant for the same offense may violate the defendant’s right to due process. In People v Laslo, 78 Mich App 257; 259 NW2d 448 (1977), the examining magistrate twice dismissed the charges against the defendant. On the third occasion, however, he was bound over to circuit court and eventually convicted by a jury. On appeal, the defendant argued that he had been harassed and had been the victim of judge shopping. This Court, while recognizing the claim, rejected defendant’s argument. The Court noted that the same magistrate had presided over the three preliminary examinations, the prosecutor adduced additional evidence at the third examination, and the prosecutor’s procedure was more a product of ineptness than an attempt to harass the defendant.
In People v George, 114 Mich App 204; 318 NW2d 666 (1982), Iv den 414 Mich 931 (1982), however, this Court found that the repeated prosecutions of the defendant constituted harassment. The defendant and two codefendants were bound over for trial on four charges. Subsequently, they moved to quash. The motion was granted by the circuit court and the people appealed to this Court. The prosecutor then filed a motion to dismiss the appeal which this Court granted after defendant’s two codefendants stipulated to the dismissal. About seven months later, the people charged the defendants again with the same crimes as originally alleged. They moved to quash and the court granted the motion. On review, this Court upheld the order quashing the information. It concluded that the second prosecution constituted harassment because at the later proceeding the people had "no evidence that was unavailable at the time of the first proceeding”. 114 Mich App 214.
In People v Walls, 117 Mich App 691; 324 NW2d 136 (1982), this Court agreed with the defendant’s argument that the prosecutor, in repeatedly proceeding against the defendant, had been "judge shopping”. After receiving an unfavorable evidentiary ruling on the defendant’s motion to quash, the prosecutor requested dismissal of the case. The request was granted and the prosecutor reinitiated proceedings against the defendant. This Court remarked that a "clearer case of judge shopping does not come to mind”. 117 Mich App 697. By starting over again, the evidentiary issue "could be reargued before a different judge with the chance that this new judge might be persuaded by the prosecutor’s argument”. Id. The Court also found that the defendant had been harassed. When the prosecutor started over, he raised the charge from second-degree to first-degree criminal sexual conduct. However, "[n]o new or additional evidence was proffered to suggest that the crime occurred in a manner other than as originally thought”. Id.
In the present case, the defendant was clearly the victim of judge shopping. After Judge Roberson ruled that the search which produced the weapon was illegal, the prosecutor, rather than appealing the ruling, initiated proceedings again. In this manner, the prosecutor could reargue the search issue before a different judge. He succeeded in doing so and obtained a ruling favorable to his case. Furthermore, although Officer Quinn, who testified at the first examination, was replaced by Officer McNamara at the second, it is undisputed that no new evidence was offered at the second proceeding. As in George and Walls, that fact suggests that the second prosecution served only to harass the defendant.
For the above reasons, we hold that the second and, consequently, the third prosecution of defendant for the same crime denied the defendant due process of law. We reverse his conviction and remand to the circuit court for entry of an order quashing the information.
In light of our disposition of this case, we need not decide defendant’s remaining issues.
Reversed and remanded. | [
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Danhof, C.J.
Plaintiff appeals as of right from an order of the trial court dismissing his invasion of privacy claim pursuant to GCR 1963, 117.2(3).
The pertinent facts involved in this case are not in dispute. Plaintiff was shopping in the men’s clothing department of one of defendant’s stores. Plaintiff was employed as an undercover police officer and was required to carry a firearm concealed on his person at all times. While he was shopping at defendant’s store, one of defendant’s security officers became suspicious that plaintiff might be a shoplifter. When plaintiff took some clothing into one of the store’s fitting rooms, the security officer followed him.
Two mirrors were located in the fitting rooms. On each mirror was a sticker which informed customers: "This area under surveillance by Hudson’s personnel”. The fitting rooms were equipped with louvred doors which did not lock and which did not extend all the way to the floor. In addition, there was a grille located in the ceiling from which persons in the fitting rooms could be observed. Access to the observation area was by a ladder located in a storeroom behind the fitting rooms.
When plaintiff entered the fitting room, the security officer watched him from the overhead observation area where he saw plaintiff remove his firearm and place it on a chair. The security officer contacted another employee who called the police.
By the time the police arrived, plaintiff. had returned to the main area of the store where a police officer pointed a gun at plaintiff and told him not to move. The officer did not at first accept plaintiff’s explanation that he was an undercover police officer. It was not until other police officers arrived that plaintiff was removed to a non-public area of the store where his identification was examined and he was permitted to leave.
Plaintiff commenced this action alleging invasion of privacy, false imprisonment and intentional infliction of emotional distress. The trial court granted defendant’s motion for summary judgment with respect to the invasion of privacy claim. The remaining two claims were voluntarily dismissed with prejudice.
The tort of invasion of privacy has been divided into four separate types of claims. See Prosser, Torts (4th ed), § 117, p 804. The four are: (1) intrusion upon plaintiff’s seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and, (4) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness. Beaumont v Brown, 401 Mich 80, 95; 257 NW2d 522 (1977).
The only form of these four which is involved in this case is intrusion upon plaintiff’s seclusion. It has been held that this type of invasion of privacy is analogous to a trespass. McCormick v Haley, 37 Ohio App 2d 73; 307 NE2d 34 (1973). However, it is unnecessary to show physical invasion onto a person’s property. Eavesdropping upon private conversations by wiretaps or spying into windows of a private home have been held to be actionable. Souder v Pendleton Detectives, Inc, 88 So 2d 716 (La App, 1956); Roach v Harper, 143 W Va 869; 105 SE2d 564 (1958).
In Michigan, this tort has been discussed in Earp v Detroit, 16 Mich App 271; 167 NW2d 841 (1969). In Earp, supra, plaintiff claimed that defendant, his employer, intruded upon his seclusion when it sought information from the police about plaintiff which led to plaintiff’s discharge. The Court held that in order to maintain an action for this type of tort, plaintiff must show that there was: (1) an intrusion by defendant; (2) into a matter which plaintiff has a right to keep private; (3) by the use of a method which is objectionable to the reasonable person. Earp, supra, pp 276-277. See also Bradshaw v Michigan National Bank, 39 Mich App 354, 356; 197 NW2d 531 (1972); DeMay v Roberts, 46 Mich 160; 9 NW 146 (1881). Although the Court in Earp, supra, recognized the existence of this form of tort, it noted that the right to be free from intrusion is not absolute. It held that such a right does not extend so far as to subvert those rights which spring from social conditions, including business relations. Earp, supra, p 276.
Turning to the facts of the present case, we are in agreement with plaintiff that there are many circumstances in which conduct of the kind defendant was involved in would constitute an unwarranted invasion of privacy. For example, in People v Abate, 105 Mich App 274, 278; 306 NW2d 476 (1981), in a criminal prosecution brought pursuant to MCL 750.539d; MSA 28.807(4), the Court held that defendant’s installation of a two-way mirror over the women’s restroom of his roller skating rink constituted an unwarranted intrusion into an area where defendant’s customers had a legitimate expectation of privacy. See also People v Dezek, 107 Mich App 78, 84; 308 NW2d 652 (1981). However, in spite of the foregoing, we do not believe that under the circumstances of this case the conduct of defendant’s security officer constituted an unwarranted invasion of plaintiff’s privacy.
It has been recognized that retailers in this country face a shoplifting epidemic of dynamic proportions. See Bonkowski v Arlan’s Dep’t Store, 383 Mich 90, 103-104; 174 NW2d 765 (1970); Bruce v Meijers Supermarkets, Inc, 34 Mich App 352, 355; 191 NW2d 132 (1971). Fitting rooms which retailers provide for their customers are particularly suited to concealment of stolen property. In In re Deborah C, 30 Cal 3d 125; 177 Cal Rptr 852; 635 P2d 446 (1981), the California Supreme Court was faced with a similar claim in the context of a criminal case involving a claim of illegal search and seizure. The court held that it was not unreasonable for store security personnel to view patrons in fitting rooms from an adjacent corridor through which customers and sales clerks frequently passed. The court noted that there were large gaps above and below the fitting room doors which provided an obvious view into each fitting room. In holding that no reasonable expectation of privacy existed, the court stated the following:
"Though designed perhaps to give minimal protection to modesty, the doors hardly could promote any reasonable feeling that all actions and objects behind them were insulated from public observation.
"One who uses a dressing room is entitled to the modicum of privacy it appears to afford.” 30 Cal 3d 137, 139; 177 Cal Rptr 858, 859; 635 P2d 452, 453.
Although it is conceded that the nature of the surveillance involved in this case was more intrusive than that which was involved in In re Deborah C, supra, it must be kept in mind that, unlike the situation presented in that case and in People v Abate, supra, in the present case signs were posted in the fitting rooms informing customers that the area was under surveillance. Although plaintiff claims that he cannot recall whether he saw the signs, he does not dispute defendant’s claim that the signs were prominently located and plain to see.
The only case which we were able to locate which discussed the expectation of privacy a store customer is legitimately entitled to where such signs are located in a fitting room was Gillett v State, 588 SW2d 361 (Tex Crim App, 1979). Gillett, supra, involved a criminal prosecution for shoplifting. Defendant was observed entering a fitting room with a sweater. There were signs posted on the mirror of the fitting room similar to those involved in this case. A store security guard was able to observe defendant place the sweater in her purse by getting down on her hands and knees and looking under the door. In rejecting defendant’s claim that the intrusion was unreasonable, the court stated the following:
"What people seek to preserve as private, even areas accessible to the public, may be constitutionally protected by the Fourth Amendment. Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967). Further, areas such as public toilet stalls are private to the extent they are offered to the public for private, although temporary, use. Katz v United States, supra; Britt v Superior Court, 58 Cal 2d 469; 24 Cal Rptr 849; 374 P2d 817 (1962); State v Bryant, 287 Minn 205; 177 NW2d 800 (1970). Such constitutional protection, however, extends only to the limits that the design, purpose and plan of the public facility affords so that, when the design is such that there is no right to expect absolute privacy, there can be no invasion of privacy. Buchanan v State, 471 SW2d 401 (Tex Crim App, 1971), cert den 405 US 930; 92 S Ct 984; 30 L Ed 2d 804 (1972).
"In the present case, the posted sign on the mirror which would under nearly all circumstances be looked at by female occupants of a fitting room was notice that one could not expect privacy. This room was for use by the public on conditions established by the business. If appellant did not want to use the fitting room under the posted conditions, she was not compelled to do so.” 588 SW2d 363.
We agree with Gillett, supra, that by posting these signs defendant placed plaintiff on notice that he was subject to the type of observation which was conducted by defendant’s employee. Whatever expectation of privacy he may have had in the absence of such signs was removed by the placement of the signs in the fitting room. Therefore, we hold that the conduct of defendant’s security guard was not objectionable. When plaintiff placed the gun on the chair inside the fitting room, the fact that he possessed such a weapon was no longer a private matter. Earp, supra. Plaintiff has no claim for this type of invasion of privacy.
We do not mean to suggest by the foregoing that by merely placing signs such as those involved here in fitting rooms merchants are absolutely immune from claims of invasion of privacy. On the contrary, had the observation in this case been conducted by persons not authorized to perform such surveillance, or by a member of the opposite sex, our decision might well have been different. We may also have reached a different conclusion if defendant’s security guard, rather than simply relaying this information to the police, had utilized the information in an objectionable fashion. However, we hold that where, as here, signs are clearly posted notifying customers that they are under surveillance while inside the fitting room of a retail establishment, the “modicum of privacy” the fitting room appears to afford does not include freedom from overhead observation by a store security guard who is of the same sex as the customer. In re Deborah C, supra.
Our disposition of the foregoing renders moot plaintiffs remaining claim.
The decision of the trial court is affirmed. Costs to appellee.
The conclusion reached in Gillett, supra, is consistent with federal court decisions holding that a person’s expectation of privacy is diminished significantly where signs posted at airports notify passengers that they and their baggage are subject to search. See United States v Edwards, 498 F2d 496 (CA 2, 1974). See also Jensen v Pontiac, 113 Mich App 341; 317 NW2d 619 (1982). | [
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T. M. Burns, J.
On November 12, 1981, the trial judge, after a two-day bench trial, ordered that plaintiffs complaint be dismissed. Plaintiff appeals as of right.
Plaintiff worked as a truck driver for defendant from March, 1955, until early 1978. In April, 1956, plaintiff ruptured a disc in his back. He returned to the job in 1958, with a 50-pound weight lifting restriction. He testified that his back caused him no problems working on the job. In 1962, he switched from being an "over-the-road” driver to a city driver. He wrenched his back in 1973 but was off work for only three weeks.
After being laid off in early 1978, he requested to return to "over-the-road” work. Because defendant assigns its drivers based on seniority, he would then have been employed once again because he had more seniority than some of the other over-the-road drivers. Defendant consequently referred plaintiff to a Dr. Underhill, who had previously treated him. Dr. Underhill concluded that plaintiff was not to lift weights over 40 pounds. Although plaintiff presented no medical evidence contradicting this conclusion, he did, however, testify that he could in fact lift weights over 40 pounds without problems and that he had had no problems with his back as a city driver. The parties agree that being a city driver is more strenuous than being an over-the-road driver. On the other hand, Bruce Morrison, defendant’s terminal manager, testified that, when plaintiff asked for the transfer, plaintiff also mentioned that he had hurt his back and that it was bothering him. Because of the doctor’s restriction, defendant refused to assign plaintiff as an over-the-road driver.
Plaintiff eventually filed a claim for workers’ compensation. The parties settled for $45,000. Plaintiff also sued defendant, claiming that defendant’s refusal to assign him to over-the-road work violated the Michigan Handicappers’ Civil Rights Act. MCL 37.1101 et seq.; MSA 3.550(101) et seq.
Plaintiff argues that the trial judge’s decision was clearly erroneous. On the other hand, defendant has presented a very persuasive argument that plaintiffs injury does not even qualify as a "handicap” under the act. MCL 37.1102(2); MSA 3.550(102)(2) states: "A person shall accommodate a handicapper for purposes of employment * * * unless the person demonstrates that the accommodation would impose an undue hardship.” A "handicapper” is defined as "an individual who has a handicap”. MCL 37.1103(c); MSA 3.550(103)(c). A "handicap” is:
"[A] determinable physical or mental characteristic of an individual or a history of the characteristic which may result from disease, injury, congenital condition of birth, or functional disorder which characteristic:
"(i) For purposes of [MCL 37.1201 et seq.; MSA 3.550(201) et seq.] is unrelated to the individual’s ability to perform the duties of a particular job or position, or is unrelated to the individual’s qualifications for employment or promotion.” MCL 37.1103(b); MSA 3.550(103)(b).
MCL 37.1202(1); MSA 3.550(202)(1) states in part:
"An employer shall not:
"(a) Fail or refuse to hire, recruit, or promote an individual because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job or position.”
Obviously, plaintiffs back injury is a handicap but, based on these statutes, a handicap under the act must be "unrelated to [his] qualifications for employment”. Defendant described four duties that an over-the-road truck driver must perform which it claims that someone who is not to lift over 40 pounds cannot do. First, hooking the tractor onto the trailer is quite difficult. Second, about five percent of the parcels to be delivered weigh over 40 pounds. Third, driving the long hours aggravates a person’s back. Fourth, federal regulations require that tire chains at times be placed on the trucks. These chains weigh between 75 and 80 pounds.
Literally reading the act strongly supports defendant’s argument that plaintiff is not "handicapped” under the act. These four duties are to some extent "related” to the job. Therefore, the handicap is to some extent related to the job. Defendant argues that, because plaintiff is not a handicapper under the act, it has no duty to accommodate. In fact, the only duty to accommodate specifically spelled out in the statute is the adaptive devices or aids requirement. MCL 37.1202(l)(g); MSA 3.550(202)(l)(g). Of course, this particular accommodation requirement is irrelevant here.
Furthermore, one can easily argue that, if our Legislature really required the employer to accommodate even though the handicap is minimally related to the employment, it could have written the act differently. In Montana, the statute reads "there is no discrimination where the nature or extent of the handicap reasonably precludes the performance of the particular employment * * Mont Rev Codes Ann § 49-4-101. In Wisconsin, the statute reads that the employer may not discriminate against an employee because of his handicap unless the "handicap is reasonably related to the individual’s ability to adequately undertake the job-related responsibilities of that individual’s employment”. Wis Stat § 111.34(2)(a). In addition a number of states use the more restrictive bona fide occupation qualification (BFOQ) exception. Calif Gov Code § 12940 (West); Conn Gen Stat § 46a-60(a); Fla Stat § 23.167(8)(a); Haw Rev Stat § 378-3(2); Nev Rev Stat § 613.350(1); Okla Stat tit 25, § 1302; Pa Cons Stat Ann tit 43, § 955 (Purdon); RI Gen Laws § 28-5-7. In fact, the Elliott-Larsen Civil Rights Act has such a BFOQ provision. MCL 37.2208; MSA 3.548(208).
New York, which once had a statute very similar to Michigan’s, interpreted the word "unrelated” in its statute literally. In other words, there is no accommodation requirement. In State Div of Human Rights v Averill Park Central School Dist, 46 NY2d 950; 415 NYS2d 405; 388 NE2d 729 (1979), the Court of Appeals upheld the Appellate Division’s decision that the defendant had not violated the act when it refused to hire a deaf person as a school bus driver. In interpreting the act, the Appellate Division had said that an employer does not violate the act if the handicap is related to the employment in any way. Obviously, being deaf somewhat affects the job of driving a school bus. The court said that the statute applied to someone who is discriminated against for that particular position because he has lost his sense of smell or has been physically scarred and not for something that is "related” to the actual job. 59 App Div 2d 449, 452; 399 NYS2d 926, 928 (1977). A similar interpretation of a similar statute was made in Silverstein v Sisters of Charity of Leavenworth Health Services Corp, 43 Colo App 446, 455-456; 614 P2d 891, 898 (1980) (Berman, J., dissenting).
Despite the language of the act, Averill Park was only a 4-2 decision. The dissent argued that the majority’s interpretation undermines the Human Rights Division’s ability to protect the disabled. 46 NY2d 954; 415 NYS2d 408 (Fuchsberg, J., dissenting). Averill Park was released on March 20, 1979. Effective July 10, 1979 (less than four months later), the legislature changed the law. 1979 NY Laws, ch 594. It now reads that an employer may not discriminate against a handicapper unless the handicap "prevents the complainant from performing in a reasonable manner the activities involved in the job or occupation sought”. See Westinghouse Electric Corp v State Div of Human Rights, 49 NY2d 234; 425 NYS2d 74; 401 NE2d 196 (1980).
If we were to accept defendant’s arguments, the act would be practically meaningless. MCL 37.1102; MSA 3.550(102) requires accommodation. However, if we ruled that an employer need not accommodate whenever the handicap is related in any way to the job, we would be ruling that the employer need accommodate only if the handicap is not related to the work. Of course, in that situation, no accommodation is needed in the first place. In other words, defendant’s interpretation requires accommodation only when no accommodation is needed.
One commentator has said: "Reasonable accommodation to compensate for the disabilities of the handicapped is necessary because it represents the only effective means of integrating the handicapped into the work force.” O’Dea, Protecting the Handicapped From Employment Discrimination in Private Sector Employment: A Critical Analysis of Section 503 of the Rehabilitation Act of 1973, 54 Tulane L Rev 717, 731 (1980). These thoughts are especially relevant since handicapper discrimination has perhaps the highest rate of discrimination in the country. Gardner, Employment Discrimination — Judicial Identiñcation of the "Handicapped Person” in North Carolina — Burgess v Joseph Schlitz Brewing Co [298 NC 520; 259 SE2d 249 (1979)], 16 Wake Forest L Rev 836, fn 1 (1980); Lang, Employment Rights of the Handicapped, 11 Clearinghouse Rev 703, fn 2 (Dec, 1977).
Iowa’s handicapper act is very similar to Michigan’s. Iowa Code § 601A.2(11) provides:
" 'Disability’ means the physical or mental condition of a person which constitutes a substantial handicap. In reference to employment, under this chapter, 'disability’ also means the physical or mental condition of a person which constitutes a substantial handicap, but is unrelated to such person’s ability to engage in a particular occupation.”
In Foods, Inc v Iowa Civil Rights Comm, 318 NW2d 162 (Iowa, 1982), the employer refused to hire a prospective employee with epilepsy. In rejecting an argument very similar to defendant’s, the Iowa Surpeme Court ruled:
"A literal interpretation of rule 6.1 would allow an employer to discharge an employee whenever the employee’s disability in any way related to his or her ability to perform the job. Harkin’s epilepsy obviously bears some relationship to her ability to perform any job, since a convulsive seizure such as the one that led to her firing would render her unconscious, and thus unable to discharge her duties, for a brief period of time. We do not believe such a restrictive interpretation of rule 6.1 is justifiable, however.
"Section 601A.18 provides that the Civil Rights Act 'shall be construed broadly to effectuate its purposes.’ Logic requires that this principle of construction also be applied to administrative rules promulgated pursuant to the rule-making authority the Act grants to the Commission. * * * The construction of rule 6.1 advocated by Foods would effectively defeat the remedial purpose of Chapter 601A. We therefore conclude that rule 6.1 must be interpreted to mean that a physical or mental disability constitutes 'any * * * physical or mental condition which * * * constitutes a substantial handicap and which is unrelated to the person’s ability to perform [in a reasonably competent and satisfactory manner] jobs or positions which are available to him or her.’ ” (Emphasis in original.) 318 NW2d 167.
In Montgomery Ward & Co, Inc v Bureau of Labor, 280 Or 163, 570 P2d 76 (1977), the employer refused to hire the employee as a heavy household appliance salesman because he had previously had a heart attack. Or Rev Stat § 659.400(2) defines "physical or mental handicap” as being "unrelated to a person’s ability to perform the duties of a particular job”. In rejecting the employer’s argument that it need not accommodate, the Oregon Supreme Court stated that the act’s intent is to achieve the fullest employment compatible with the reasonable demands of the job. 280 Or 168; 570 P2d 78._
The Legislature enacted this act forbidding discrimination because of a handicap to ensure employment to the maximum practicable extent so that "handicapped but qualified persons would have the right to employment”. Kimmel v Crowley Maritime Corp, 23 Wash App 78, 82; 596 P2d 1069, 1071 (1979). As such, the Michigan handicapper’s act is to be interpreted broadly. See Rookledge v Garwood, 340 Mich 444; 65 NW2d 785 (1954); Holmes v Haughton Elevator Co, 75 Mich App 198; 255 NW2d 6 (1977), aff'd 404 Mich 36; 272 NW2d 550 (1978). In Holland v Boeing Co, 90 Wash 2d 384, 388; 583 P2d 621, 623 (1978), the Washington Supreme Court stated:
"The physically disabled employee is clearly different from the nonhandicapped employee by virtue of the disability. But the difference is a disadvantage only when the work environment fails to take into account the unique characteristics of the handicapped person. * * * Identical treatment may be a source of discrimination in. the case of the handicapped, whereas different treatment may eliminate discrimination againt the handicapped and open the door to employment opportunities.” (Emphasis in original; citations omitted.)
Therefore, we are ruling that the act requires that the employer accommodate the employee for any handicap unless the employer shows that such accommodation will result in undue hardship.
In fact, the Michigan Department of Civil Rights has been interpreting the act this way. Courts are to give great deference to the interpretation of an agency which has been charged with enforcing the act. Boyer-Campbell Co v Fry, 271 Mich 282, 296; 260 NW 165 (1935); Detroit Automobile Inter-Ins Exchange v Comm’r of Ins, 119 Mich App 113; 326 NW2d 444 (1982); Chrysler Corp v Dep’t of Civil Rights, 117 Mich App 95, 108; 323 NW2d 608 (1982) (Maher, J., dissenting).
In Michigan Dep’t of Civil Rights ex rel Elizabeth Dingler v General Motors Corp (No. 37293-El, decided Oct. 23, 1979), the department adopted the referee’s recommendation that the respondent had violated the act. The referee had stated:
"The obligation to accommodate a handicapped person is twofold. It concerns both alterations to physical structures and modifications to the job. The first kind of accommodation is necessary to provide access to the place of employment. It may include the installation of a ramp or elevator or the reassignment of parking spaces. The second kind of accommodation is necessary to permit actual performance of the job duties. It may include the reassignment of certain peripheral duties to other employees or the rearrangement of equipment or fixtures in the work area.
"The Handicappers’ Act requires respondent to make reasonable efforts to accommodate a handicapped applicant or employee.”
In Michigan Dep’t of Civil Rights ex rel Reuben Garcia v Dannon Milk Products (No. 36557-E7, decided Jan. 22, 1980), the department once again adopted the referee’s conclusions: "Accommodation * * * requires an employer to reasonably attempt to successfully remove the barrier which excludes a handicapped person from employment, even if actual success is not achieved”.
In fact, these sentiments were expressed in Shelby Twp Fire Dep’t v Shields, 115 Mich App 98, 105; 320 NW2d 306 (1982):
"[W]e wish to urge the commission to consider placing Shields on light duty in the event that the commission finds that Shields’s handicap prevents him from performing the normal duties of a firefighter.”
In suing under the act, the employee has the initial burden of proving that the employer violated the act. In this case, plaintiff met this burden when Morrison testified that plaintiff was not transferred to the over-the-road position because of his physical handicap. At that point, the burden shifted to defendant to show that it could not reasonably accommodate plaintiff without undue hardship. Although the record strongly shows that defendant had made no effort whatsoever to accommodate plaintiff, it is quite sparse on its inability to do it. Assuming that defendant is correct when it asserts that hooking the trailer onto a tractor is very strenuous, no one has shown us just how integral this activity is to the job. If this activity is performed before the driver leaves on his run, one of the mechanics could plausibly do it. Neither side has shown that defendant would be unduly burdened by shifting this responsibility to someone else.
Second, just how much would defendant be unduly burdened by shifting to someone else that particular five percent of the runs with packages over 40 pounds? No one has answered that. Third, at what place are the tire chains put on the tires? If they are done at the point of departure, could not someone else put them on? Defendant argues that federal regulations require that these tire chains be put on. However, defendant has never pointed out to us just which federal regulations require that. Furthermore, a number of defendant’s employees testified that they did not put these tire chains on. The record does not explain just how often these tire chains were used nor just how integral a part of the job it is.
One particular problem lurking in the background here is that plaintiff may injure himself some more thus increasing defendant’s workers’ compensation liability. However, the Department of Civil Rights has a number of times ruled that a concern over possible future harm to the employee is irrelevant under the act. Instead, the present ability to perform is what counts. Michigan Dep’t of Civil Rights ex rel Marvin Arms v General Motors Corp (No. 35364-E1, decided Feb. 26, 1980); Michigan Dep’t of Civil Rights ex rel Dick Moore v Lansing School Dist (No. 36147-E1, decided Oct. 21, 1980). In fact, the latter case here was affirmed in the Ingham County Circuit Court:
"This court is not prepared to say that the possibility of future injury may never be considered, but there must be a substantial probability of immediate injury to the employee. An employer is never justified in refusing employment merely to head off possible worker’s compensation liability.” Lansing School Dist v Michigan Dep’t of Civil Rights ex rel Dick Moore (No. 80-26087-AV, decided March 5, 1982).
When the act was on the Senate floor, Sen. Welborn expressed concern that employers would be unreasonably burdened because of increased workers’ compensation cost. 41 Journal of the Senate, p 590 (1976). However, the act passed without further amendments. Thus, "the legislature did not intend the greater possibility of future injury or incapacity to be a factor related to an individual’s qualifications for employment or abil ity to perform such job”. Michigan Dep’t of Civil Rights ex rel Carl Bartholomew v General Motors Corp (No. 35408-E1, decided Oct. 13, 1979), p 4.
We need not at this time go as far as the department has on this issue. Based on the record, defendant’s fear that plaintiff will aggravate his back injury even if defendant reasonably accommodates plaintiff is purely speculative.
Because of the lack of a record, we are remanding for a new trial. The trial court misinterpreted the act when it did not consider defendant’s duty to accommodate. At the new trial, defendant has the burden to show that it would have been unduly burdened if it had transferred plaintiff to over-the-road work. If the trial court decides for plaintiff, it must then decide what effect if any the workers’ compensation award had on this lawsuit.
Defendant next argues that it has in fact shown that it would be unduly burdened. Based on Trans World Airlines, Inc v Hardison, 432 US 63; 97 S Ct 2264; 53 L Ed 2d 113 (1977), it argues that an undue hardship is met by merely showing de minimis cost. However, Hardison was a title VII religious discrimination case and, therefore, implicates the First Amendment. We will not follow it in interpreting our handicapper’s act.
Just when an employer has been unduly burdened has not yet been defined. In Dady v Rochester School Bd, 90 Mich App 381; 282 NW2d 328 (1979), this Court held that the school did not have the affirmative duty to provide special medical services to the handicapped child. On the other hand, in Littsey v Bd of Governors of Wayne State Univ, 108 Mich App 406; 310 NW2d 399 (1981), lv den 413 Mich 882 (1982), this Court found that an inflexible policy, which would prevent hearing-impaired students from using adaptive devices to benefit from class lectures, would violate the act. Allowing a handicapped student to use unobtrusive adaptive devices, such as a tape recorder, Would not unduly burden the university.
If an employee is blind, the employer obviously would be unduly burdened if it were forced to allow him to drive a truck. Guy, The Developing Law on Equal Employment Opportunity for the Handicapped: An Overview and Analysis of the Major Issues, 7 U Balt L Rev 183, 252, fn 244 (1978). See also McCrea v Cunningham, 202 Neb 638; 277 NW2d 52 (1979). On the other hand, blindness affects to some extent practically any job. Yet both Gurmankin v Costanzo, 556 F2d 184 (CA 3, 1977), and Connecticut Institute for the Blind v Connecticut Comm on Human Rights and Opportunities, 176 Conn 88; 405 A2d 618 (1978), held that the employers discriminated against the blind prospective employees by not hiring them as teachers.
For this case, we will let the trial court view the evidence and decide whether or not defendant would have been unduly burdened if it had accommodated defendant.
Defendant next argues that it has not violated the act because it relied in good faith on Dr. Underhill’s advice. To a certain extent, the act centers on the employer rather than on the employee’s status. It forbids an employer from mak ing employment decisions based on what he perceives to be a handicap. However, the act also centers on the employee. Whether or not the decision was made in good faith is irrelevant. The employee is just as discriminated against if the decision is made in good faith as he is if the decision is made in bad faith. Montgomery Ward, supra. In fact, in Griggs v Duke Power Co, 401 US 424, 432; 91 S Ct 849, 854; 28 L Ed 2d 158, 165 (1971), the Supreme Court stated:
"[G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds’ for minority groups and are unrelated to measuring job capability.
"But Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation. More than that, Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.” (Emphasis in original.)
Plaintiff also appeals from the trial court’s decision to strike his claim for exemplary damages. The Elliott-Larsen Civil Rights Act, MCL 37.2801; MSA 3.548(801), provides for exemplary damages. Ledsinger v Burmeister, 114 Mich App 12; 318 NW2d 558 (1982); Moll v Parkside Livonia Credit Union, 525 F Supp 786 (ED Mich, 1981); Freeman v Kelvinator, Inc, 469 F Supp 999 (ED Mich, 1979). Because the handicapper’s act, MCL 37.1606; MSA 3.550(606), is virtually identical, we rule that it also provides for exemplary damages.
Defendant, relying on Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401; 295 NW2d 50 (1980), argues that these cases were incorrectly decided. However, Kewin was a breach of contract case. The question in Kewin revolved around whether or not the particular contract in that case allowed for exemplary damages. Interpreting a statute is a different matter. In this case, allowing for exemplary damages furthers this statute’s intent. Therefore, the trial judge erred in striking the claim for exemplary damages.
Reversed and remanded with instructions to proceed consistent with this opinion. We do not retain jurisdiction.
Allen, J., concurred.
Plaintiff was not required to first exhaust his remedies by first filing a complaint with the Civil Rights Department. MCL 37.1607; MSA 3.550(607); Constantinoff v Emma L Bixby Hospital, 111 Mich App 575; 314 NW2d 698 (1981).
Plaintiff presented witnesses disputing each of these items. E.g., a few truck drivers testified that hooking the tractor with the trailer does not require overly substantial exertion. Some also testified that they never put tire chains on the truck.
An employer cannot argue a BFOQ merely by showing that the job qualifications are only minimally affected. Instead, it is a defense only if the business’s essence would otherwise be undermined. Diaz v Pan American World Airways, Inc, 442 F2d 385 (CA 5, 1971), cert den 404 US 950; 92 S Ct 275; 30 L Ed 2d 267 (1971).
The majority did not reach this issue.
5 The Iowa Civil Rights Commission’s rule 6.1 tracked the statute defining "physical and mental disability” as "any * * * physical or mental condition which * * * constitutes a substantial handicap and which is unrelated to the person’s ability to perform jobs or positions which are available to him or her”. 318 NW2d 167.
Foods, supra, relied on the Iowa Civil Rights Commission’s rules. Cf. Unified School Dist No 269 v Kansas Comm on Civil Rights, 7 Kan App 2d 319; 640 P2d 1291 (1982).
An administrative agency may interpret an act through adjudication. Michigan Life Ins Co v Comm’r of Ins, 120 Mich App 552; 328 NW2d 82 (1982); Detroit Automobile, supra. See also Securities & Exchange Comm v Chenery, 332 US 194; 67 S Ct 1575; 91 L Ed 1995 (1947).
Hardison was not even followed in Michigan when this state enunciated the religious accommodation requirement under the old Michigan State Fair Employment Practices Act, MCL 423.303; MSA 17.458(3). Dep’t of Civil Rights ex rel Parks v General Motors Corp, 412 Mich 610; 317 NW2d 16 (1982). See generally Snyder v Charlotte Public School Dist, 123 Mich App 56; 333 NW2d 542 (1983) (T. M. Burns, J., dissenting).
This point shows that the act must have an accommodation requirement. Otherwise, the blind would be protected in very few jobs. | [
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Per Curiam.
William Dodson died on August 16, 1980. On November 14, 1980, appellant, Geraldine McClendon, filed a petition to have an alleged will of Mr. Dodson admitted to probate. The probate court denied admission, holding as a matter of law that the purported will did not meet minimum statutory requirements.
The document submitted was a two-page preprinted will form. It is not clear whether the pages had ever been joined. The first page contains printing clearly indicating that it is to be used as a will form. Typed in the appropriate places are William Dodson’s name and address, and the provisions disposing of his property. His purported signature appears directly above the place where his name is typed. The second page contains blanks for appointment of an executor, signature, date, and attestation by witnesses. Calvin C. Stevenson is appointed as executor. Stevenson’s signature also appears where the testator’s should be. Stevenson’s stamp as a notary public appears superimposed over his signature. The page is dated. In the attestation clause, Stevenson is said to have requested the signatures of two witnesses, which appear at the bottom of the page.
MCL 700.122; MSA 27.5122 states in part:
"Sec. 122. (1) A will shall be in writing signed by the testator or in the testator’s name by some other person in the testator’s presence and by his direction and shall be signed by at least 2 persons each of whom witnessed either the signing or the testator’s acknowledgment of the signature or of the will.”
The purported will was "in writing”. We reject as foolish appellees’ claim that only handwriting suffices. Such an interpretation is inconsistent with the inclusion of explicit requirements for holographic wills in the same code. MCL 700.123; MSA 27.5123. We think it clear that the requirement that a will be in writing was intended by the Legislature to preclude oral wills from probate. See Atkinson, Wills (2d ed), § 63, pp 294-295.
The will was also "signed by the testator”. Although the paper was signed neither at the bottom nor in the space provided on the will form, it was signed in a manner which indicates testamentary intent. Even when Michigan’s statutes required that a will be "subscribed” by the testator, a will signed at the top was held valid in Stone v Holden, 221 Mich 430; 191 NW 238 (1922).
Finally, the statute requires that the will be signed by two persons, each of whom witnessed the testator sign the will, acknowledge his signature, or acknowledge the will. No formal attestation is required. In this case, the witnesses’ signatures appear only on the second page of the purported will. The testator’s signature appears only on the first page. We do not have the document itself nor any factual record concerning the connection between the two pages. We think it error, however, to conclude as a matter of law that the two pages are unconnected. Appellant is entitled to show, by extrinsic evidence, that the two pages were presented to the attesting witnesses in a manner to indicate that they constituted a single document.
Reversed and remanded. No costs. | [
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Per Curiam;.
The parties’ marriage was terminated by a judgment of divorce entered on April 26, 1978. The judgment was entered after proceedings in which various matters were contested but in which defendant admitted paternity of the parties’ two minor children. Plaintiff received custody of the children and defendant was ordered to pay child support.
On June 24, 1981, defendant filed a motion styled "Motion to Determine Paternity and/or Abate Child Support”. In the motion, defendant stated that he had examined the driver’s license application of the parties’ oldest child and noted that the blood type indicated on the application was such as to indicate that defendant was not the child’s natural father. The circuit judge dismissed defendant’s motion and defendant appeals by right.
The circuit judge relied on Baum v Baum, 20 Mich App 68, 74; 173 NW2d 744 (1969), and Stewart v Stewart, 91 Mich App 602, 605; 283 NW2d 809 (1979), to hold that defendant’s motion was barred by res judicata and estoppel. On appeal, defendant attempts to distinguish these cases by pointing to his claim of newly discovered evidence. However, Michigan follows a broad rule of res judicata which applies not only to points on which the court was actually required by the parties to form an opinion and pronounce judgment but to every point which properly belongs to the subject of the litigation and which the parties, exercising reasonable diligence, might have brought forward at the time. Gose v Monroe Auto Equipment Co, 409 Mich 147, 160; 294 NW2d 165 (1980); Curry v Detroit, 394 Mich 327, 332; 231 NW2d 57 (1975); Gursten v Kenney, 375 Mich 330, 334-335; 134 NW2d 764 (1965). Defendant has made no attempt, either in circuit court or on appeal, to explain how his failure to bring forward his contentions in regard to paternity at the time of the original divorce proceedings was consistent with the requirement of due diligence.
Arguably, although defendant makes no such argument, res judicata is inapplicable here since defendant sought to attack the judgment of divorce directly rather than collaterally. However, such a distinction is of no assistance to defendant. Under GCR 1963, 528.3, a showing of due diligence is required to obtain relief from a final judgment on the ground of newly discovered evidence. Moreover, a motion for relief from a final judgment on such a ground would have been untimely at the time defendant brought the motion at issue here.
Defendant’s position is also not improved by treating his motion as one for modification of an order for child support, although again defendant makes no such argument. A court may only modify an order for child support upon a showing of changed circumstances; a petition for modification of an order of child support does not entitle the petitioner to a rehearing on the original case. Slater v Slater, 327 Mich 569; 42 NW2d 742 (1950); Verbeke v Verbeke, 352 Mich 632; 90 NW2d 489 (1958). Defendant’s motion here is not based on a claim of changed circumstances but rather on a claim of new evidence as to circumstances in existence at the time of the judgment of divorce.
Defendant’s position on appeal is indefensible under any conceivable theory. Defendant has never attempted to make the required showing of due diligence. Accordingly, the Court determines that this appeal was vexatious because taken without any reasonable basis for belief that there was a meritorious issue to be determined on appeal. See GCR 1963, 816.5(1)(a). The Court assesses punitive damages in an amount equivalent to the expenses incurred on appeal by plaintiff, including reasonable attorney’s fees. GCR 1963, 816.5(2). We retain jurisdiction and remand the case to circuit court for determination of the amount of punitive damages. See Greenough v Greenough, 354 Mich 508, 527-528; 93 NW2d 391 (1958); Harden v Widovich, 359 Mich 566, 570-571; 103 NW2d 478 (1960), after remand, 361 Mich 422; 105 NW2d 224 (1960); Thomson v City of Dearborn, 362 Mich 1, 5; 106 NW2d 129 (1960); Harvey v Lewis, 364 Mich 493, 494; 112 NW2d 500 (1961).
Affirmed and remanded. | [
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Per Curiam.
Defendant was convicted upon his plea of guilty to two counts of second-degree murder, MCL 750.317; MSA 28.549. His conviction was affirmed by this Court in a memorandum opinion decided November 18, 1983. Subsequently, defendant moved in the trial court for relief from judgment, alleging a violation of the Interstate Agreement on Detainers Act (IAD), MCL 780.601 et seq.; MSA 4.147(1) et seq. The motion was denied, and defendant filed an application for leave to appeal, which was granted by this Court on February 21, 1985.
Defendant was originally charged with first-degree murder on March 26, 1976. A detainer was filed on the defendant on February 22, 1979, while he was incarcerated in the State of Maryland. Defendant was removed to Michigan on July 2, 1980.
Defendant was arraigned in Detroit Recorder’s Court on July 8, 1980, and preliminary examination was held July 17, 1980. However, defendant was not brought to trial until March 13, 1981, at which time he entered his plea of guilty.
Defendant now argues that the 254-day delay between his arrival in Michigan on July 2, 1980, and his plea of guilty on March 13, 1981, violated Article IV(c) of the Interstate Agreement on Detainers Act, which requires that trial be commenced within 120 days of the prisoner’s arrival in the state. Prior to considering the merits of this argument, we must first consider the effect of defendant’s guilty plea on his ability to raise this issue.
This issue has been addressed on several occasions by the federal courts, including the Sixth Circuit Court of Appeals, and has been resolved in favor of the prosecutor’s position. For example, in Kowalak v United States, 645 F2d 534 (CA 6, 1981), the court noted that a guilty plea is generally regarded as a waiver of all nonjurisdictional errors, and that violations of the IAD have been held to constitute nonjurisdictional errors. The court continued:
"As we stated in [United States v Eaddy, 595 F2d 341 (CA 6, 1979)], and reaffirmed in [Mars v United States, 615 F2d 704 (CA 6, 1980)], 'to allow a person to assert violations of the Agreement [IAD] beyond the trial stage, without a showing of cause * * * would * * * undercut the policy of achieving prompt and final judgments.’ 595 F2d at 346; 615 F2d at 707. Obviously, to permit the raising of IAD questions after a plea of guilty, entry of judgment, and sentencing involves the same concerns. We therefore conclude that entry of a plea of guilty is just as surely a waiver of the right to raise IAD violations as was the commencement of trial in Eaddy and in Mars. Both pleading guilty and standing trial are the sort of 'affirmative request to be treated in a manner contrary to the procedures prescribed by Article IV(c) or (e)’ that may constitute a voluntary waiver of IAD rights. 595 F2d at 344.” 645 F2d 537.
We have some difficulty with the position of the federal courts on this issue since the Michigan Supreme Court, in discussing the effect of a guilty plea on the ability to raise issues on appeal, stated as follows:
"Thus, it is clear that the United States Supreme Court, while recognizing that certain rights of defendant may be waived by a subsequent plea of guilty, does not say that is true of all rights. Certainly it is true that those rights which might provide a complete defense to a criminal prosecution, those which undercut the state’s interest in punishing the defendant, or the state’s authority or ability to proceed with the trial may never be waived by guilty plea. These rights are similar to the jurisdictional defenses in that their effect is that there should have been no trial at all. The test, although grounded in the constitution, is therefore a practical one. Thus, the defense of double jeopardy, those grounded in the due process clause, those relating to insufficient evidence to bind over at preliminary examination and failure to suppress illegally-obtained evidence without which the people could not proceed are other examples. Wherever it is found that the result of the right asserted would be to prevent the trial from taking place, we follow the lead of the United States Supreme Court and hold a guilty plea does not waive that right.” People v Alvin Johnson, 396 Mich 424, 443-444; 240 NW2d 729 (1976). (Footnotes omitted.)
We believe that a violation of Article IV(c) can be characterized as a complete defense to a criminal prosecution, and is thus not waived by a guilty plea. The sanction for failing to bring a defendant to trial within the period provided in Article IV(c), i.e., 120 days, is contained in Article V(c), where it states that "the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect”. To our minds, even if not a jurisdictional defect, this clear and explicit language can only be described as providing a complete defense to a criminal prosecution.
This conclusion is supported by a recent decision of this Court, People v Office, 126 Mich App 597; 337 NW2d 592 (1983), where the majority held that the defendant was not prevented by his guilty plea from complaining of the failure of the appropriate authorities to inform him of his right to request final disposition of the charge and of their failure to formally charge him after the detainer was issued. 126 Mich App 603-604. Moreover, we believe that even the dissenting judge in Office would agree that the violation presented in the instant case was not waived by the guilty plea. Chief Judge Danhof objected to the majority’s holding in Office only because the IAD violation with which they were concerned did not provide for automatic dismissal for a violation thereof. 126 Mich App 604 (Danhof, C.J., dissenting). However, as noted above, Article V(c) provides that the santion for violating the time constraints of Article IV(c) is in fact automatic dismissal. Thus, it would appear that even Judge Danhof would find that the alleged IAD violation involved in the case before us was not waived by the guilty plea entered by defendant.
However, we are hesitant to reject the holding of Kowalak v United States, supra, i.e., that a plea of guilty waives a defendant’s rights under the IAD, in favor of our own analysis of the waiver issue based upon People v Alvin Johnson, supra, and People v Office, supra. Our hesitation stems from the observation contained in People v McLemore, 411 Mich 691, 693-694; 311 NW2d 720 (1981), that "[t]he Interstate Agreement on Detainers is a congressionally sanctioned interstate compact, construction of which presents a federal question”, citing Cuyler v Adams, 449 US 433; 101 S Ct 703; 66 L Ed 2d 641 (1981). Thus, it would seem that we are constrained to follow the holding of Kowalak v United States, supra, as to the effect of a guilty plea on the ability to raise IAD violations on appeal.
However, our resolution of this question is, in the end, unimportant since the Kowalak court also held that the failure of defense counsel to raise the issue of a meritorious IAD violation may constitute the ineffective assistance of counsel, and, if so, both the guilty plea and the waiver of rights afforded by the IAD would be invalid. Kowalak, supra, pp 537-538. We agree with this observation since Michigan courts have long held that the complete failure to raise a valid substantive defense may amount to ineffective assistance of counsel. See, e.g., People v Moore, 131 Mich App 416, 418; 345 NW2d 710 (1984).
After several hearings were held to consider the merits of defendant’s claim, the trial court held in favor of the prosecution, finding that defendant had waived his right to assert any violation of the IAD by pleading guilty. However, the trial court also found that the delays beyond the 120-day period were attributable to the defendant and, thus, no violation of Article IV(c) occurred. If this determination is supported by the record, then the effectiveness of defendant’s representation would not be in question. Unfortunately, in ruling on this issue, the trial court offered only a conclusory statement unsupported by specific findings of fact. This failure to provide detailed findings has substantially hindered our attempt to review the lower court’s conclusion in this regard and, thus, we find it necessary to remand this case to the trial court in order to obtain a more thorough record.
In doing so, we find it necessary to address an argument advanced by the defendant in his appellate brief. In listing the delays which he believed should be attributable to the prosecution, defendant included several adjournments which were either requested or in some other way caused by the defendant. Defendant supported the inclusion of these delays on the ground that no transcript existed which would establish "good cause shown in open court”, citing Article IV(c) of the IAD. We reject this argument since we believe that this phrase was intended to apply only to adjournments and other delays caused by the prosecution. As noted in People v Harlan, 129 Mich App 769, 771; 344 NW2d 300 (1983), the 120-day period may also be tolled or otherwise exceeded "for as long as the defendant is unable to stand trial” and "for any period of delay caused by the defendant’s request or in order to accommodate the defendant”. Therefore, in calculating the actual delay attributable to the prosecution in this case, the trial court should not include adjournments requested by the defendant or other delays caused by the defendant, even if not established by the transcripts of open-court proceedings.
We decline to address the defendant’s remaining arguments since they were adjudicated in his previous appeal as of right.
Remanded for clarification. The trial court is requested to make specific findings of fact and transmit those findings to this Court within 90 days from the date of receipt of this opinion. We retain jurisdiction. | [
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M. R. Stempien, J.
Defendant appeals as of right from a judgment entered on a mediation award originally accepted by both parties. We reverse.
On August 20, 1982, plaintiff filed an action against defendant because defendant refused to issue a 10-year guarantee on roofing matierials used to construct a roof on a construction project coordináted by plaintiff. Defendant counterclaimed seeking payment for the roofing materials.
On May 6, 1983, a mediation panel made the following evaluation relative to the present controversy:
"R. N. West Construction Co. pays Barra Corporation the sum of $7,000.00 but only upon delivery to R. N. West Construction Co. the 10 year written warranty in the nature of a 10 year manufacturer’s guarantee of the roof of the State Office Building.”
Both parties accepted the mediation award. However, when defendant sought judgment on the award, plaintiff objected because plaintiff did not agree with defendant’s interpretation thereof. On November 22, 1983, a hearing was held at which the trial court interpreted the award differently than interpreted by defendant. The trial court gave plaintiff the option of either entry of judgment on the award as the court interpreted it, or to proceed with a trial on the merits. Defendant objected to the court’s interpretation of the award, claiming that it required the roof to be brought up to defendant’s specifications before the warranty would be issued. Then, once the warranty was issued, plaintiff would pay defendant $7,000. Plaintiff, on the other hand, agreed with the court’s interpretation of the award and asked that judgment be entered thereon.
On December 5, 1983, the trial court issued its judgment on the mediation award as follows: defendant guarantees the workmanship of plaintiff’s subcontractor, Bab Roofing Company; the guarantee is intended to warrant the roof against faulty or defective materials and/or workmanship and leaks resulting from either or both; and the guarantee shall be effective upon payment of $7,000 to defendant.
On appeal, plaintiff urges that "the mediators recognized that this particular controversy cried for settlement”. Although this may be true, the mediators’ award and the trial court’s judgment on the award were erroneous.
. GCR 1963, 316.1 provides in relevant part as follows:
"Scope and Applicability of Rule.
"(a) A court may submit to mediation any civil case in which the relief sought consists of money damages or division of property.”
The present mediation award, however, grants more than "money damages or division of prop erty”. The award tries to grant equitable relief, which is beyond the scope of GCR 1963, 316.1 and the subject-matter jurisdiction of the mediation panel. A judgment cannot lawfully be based upon such an extra-jurisdictional award.
This does not end our inquiry, however. There still remains the question of whether the original acceptance of the award is binding on the parties as a settlement agreement. Based upon our review of the record and the parties’ contentions herein, we find that the mediation award left unresolved a material factual issue between the parties, i.e., who must bear the expense of bringing the roof up to defendant’s specifications. Thus, the mediation award cannot form the basis of a settlement agreement of the issues in controversy between the parties.
Defendant interprets the award as requiring plaintiff to first repair the roof and then defendant will issue its guarantee in exchange for $7,000. Plaintiff,, on the other hand, interprets the award as requiring defendant to issue its guarantee immediately to plaintiff in exchange for the $7,000 and then it is defendant’s obligation to do whatever is necessary to keep the roof from leaking and to repair the roof if necessary.
On its face, the award does not require defendant to issue its guarantee. On the contrary, it only requires plaintiff to pay defendant $7,000 if and when defendant does issue its guarantee. Defendant has agreed to issue plaintiff the guarantee when the roof is brought up to defendant’s specifications. However, plaintiff evidently does not want to bear the cost of bringing the roof up to defen dant’s specifications before receiving the guarantee.
Finally, we note that the trial court’s judgment states that not only must defendant issue its guarantee to plaintiff upon plaintiffs payment of $7,000, but that defendant must also guarantee the workmanship of plaintiffs subcontractor, Bab Roofing Company. The mediation award itself simply does not create such an obligation. The award only addresses one question, i.e., does defendant get paid if it issues its guarantee to plaintiff? The answer to that question is yes. Now, what remains is the question of whether defendant can be ordered to issue its guarantee. Under the scope of GCR 1963, 316.1 the answer to that question cannot lawfully be the subject of a mediation award. It has not been agreed upon by negotiations between the parties; thus, it must be determined through litigation.
The trial court’s order of November 22, 1983, based upon the mediation award, is vacated and its judgment of December 5, 1983, is reversed. The case is remanded with instructions to set aside the mediation award and to either allow resubmission to mediation in conformity with the court rules on mediation or, in the court’s discretion, set the matter for immediate trial.
We do not retain jurisdiction.
We note that under the new court rules made effective on March 1, 1985, the analysis herein would remain the same. See MCR 2.403(A). | [
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Per Curiam.
Petitioner appeals as of right from an order of the circuit court affirming the decision of an administrative hearing officer who found petitioner guilty of assault and battery while an inmate at the Marquette branch prison.
Five issues are raised on appeal: first, whether the act of ordering and conducting a rehearing was, in the instant case, foreclosed to the agency; second, whether objections to an initial misconduct hearing are rendered moot by an agency’s conducting a subsequent hearing; third, whether the hearing officer erred in receiving as evidence at the rehearing a statement allegedly prepared by officer R. Pearson; fourth, whether petitioner’s guilt was established by a preponderance of the evidence; and, fifth, whether the decision of the circuit court was based upon competent, material, and substantial evidence on the whole record and does not evidence an abuse of discretion.
Initially we address the first two issues. The standard of review of a prison misconduct hearing is set forth in MCL 24.306; MSA 3.560(206):
"(1) Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following:
"(a) In violation of the constitution or a statute.
"(b) In excess of the statutory authority or jurisdiction of the agency.
"(c) Made upon unlawful procedure resulting in material prejudice to a party.
"(d) Not supported by competent, material and substantial evidence on the whole record.
"(e) Arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion.
"(f) Affected by other substantial and material error of law.
"(2) The court, as appropriate, may affirm, reverse or modify the decision or order or remand the case for further proceedings.”
Petitioner is contending that this Court must set aside the decision of the agency because the procedure was unlawful, resulting in material prejudice to him.
In response to petitioner’s request for a limited appeal, he was granted a rehearing because the findings of fact were not sufficiently set forth. A rehearing was not mandated because there was no evidence at the original hearing in support of the finding of guilt.
Judicial review of a final agency determination is limited to the record; final decisions must include findings of fact and conclusions of law. Human Rights Party v Michigan Corrections Comm, 76 Mich App 204; 256 NW2d 439 (1977). The official record of a hearing shall include the following per MCL 24.286; MSA 3.560(186):
"(1) An agency shall prepare an official record of a hearing which shall include:
"(a) Notices, pleadings, motions and intermediate rulings.
"(b) Questions and offers of proof, objections and rulings thereon. ‘
"(c) Evidence presented.
"(d) Matters officially noticed, except matters so obvi ous that a statement of them would serve no useful purpose.
"(e) Proposed findings and exceptions.
"(f) Any decision, opinion, order or report by the officer presiding at the hearing and by the agency.”
Finally, MCL 24.287; MSA 3.560(187) provides:
"(1) An agency may order a rehearing in a contested case on its own motion or on request of a party.
"(2) Where for justifiable reasons the record of testimony made at the hearing is found by the agency to be inadequate for purposes of judicial review, the agency on its own motion or on request of a party shall order a rehearing.
"(3) A request for a rehearing shall be filed within the time fixed by this act for instituting proceedings for judicial review. A rehearing shall be noticed and conducted in the same manner as an original hearing. The evidence received at the rehearing shall be included in the record for agency reconsideration and for judicial review. A decision or order may be amended or vacated after the rehearing.”
Petitioner’s contention that § 87 only allows a rehearing where the record of testimony, i.e., orally from a witness, is inadequate for judicial review is inconsistent with the ostensible legislative intent and would frequently result in a miscarriage of justice. The hearing officer ordered a rehearing because the original hearing officer failed to state specifically his findings of fact in regard to petitioner’s intent in striking officer Koski. Since one of the elements of assault and battery is an intentional touching, a determination of this element was vital. If no rehearing were possible and the finding of guilt simply reversed, great inequity would result. The phrase "record of testimony” should be construed to mean record of a hearing. Since judicial review must be made on the entire official record, which includes all of those items set forth in § 86, this more liberal reading would serve to effectuate the legislative intent that the record be complete and adequate to allow judicial review.
The rules of the Michigan Department of Corrections support this interpretation. Following an appeal from a major misconduct hearing to the institution head, that head has the authority to order a rehearing. Furthermore, the rules state that a rehearing should be ordered where a resident’s procedural rights were violated. The situation where a hearing officer failed to make sufficient findings of fact, although there was ample evidence to support the offense charged, constitutes a procedural violation and under the MDC’s rules warrants a rehearing.
Thus, it appears that, reading all of the statutory provisions together, the rehearing was proper because petitioner’s procedural rights were violated in the initial hearing, and the record was inadequate for purposes of judicial review. Such a reading comports with both the rules of the MDC and the apparent legislative intent of the Administrative Procedures Act. Any defects present in the initial hearing are, therefore, rendered moot.
Turning to petitioner’s third issue, we note that MCL 24.285; MSA 3.560(185) states: "Findings of fact shall be based exclusively on the evidence and on matters officially noticed.” Moreover, § 87 provides that the rehearing "shall be noticed and conducted in the same manner as an original hearing”.
Petitioner, in the instant case, was provided with copies of the misconduct reports filed by Charles Oberg and Willard Koski. They both stated that petitioner was fighting and continued to struggle with the staff members after he and the other residents were being separated. Koski explicitly stated that "Campbell swung at me and hit me in the left forearm”. Thus, petitioner was given official notice of the charges.
The second misconduct report, affirming the decision and sentence originally given, does refer to the witness report given by Pearson. However, Pearson’s report merely reiterates the statements of Koski.
Section 106(l)(c) of the Administrative Procedures Act, MCL 24.306; MSA 3.560(206), provides for the setting aside of a decision which was made upon unlawful procedure resulting in material prejudice to a party. In the instant case, although there may have been unlawful procedure, the decision did not result in material prejudice to petitioner since there was sufficient evidence upon which to base the decision. Hearing officer Sherman indicated in his reasons for his findings that the statement by Pearson was not essential and, since Pearson was listed on the ticket as a witness, petitioner was given actual notice of his involvement.
Thus, based on § 106(l)(c), although there may have been unlawful procedure if the statement were not actually read at the original hearing, it does not appear that any material prejudice resulted to petitioner.
In conclusion, we discuss the final two issues in conjunction with each other. Section 106(d) provides for setting aside a decision if substantial rights of the petitioner have been prejudiced because the decision is not supported by competent, material, and substantial evidence on the whole record.
Although originally petitioner had to have been found guilty by a "preponderance of the evidence”, the standard of review at this level is different. Thus, we discuss these two issues together.
Judicial review requires that great deference be given to the findings of the administrative hearing officer. Viculin v Dep’t of Civil Service, 386 Mich 375, 406; 192 NW2d 449 (1971). The definition of the "substantial evidence test” was reiterated in Tompkins v Dep’t of Social Services, 97 Mich App 218, 222; 293 NW2d 771 (1980):
"This has been defined as evidence which a reasoning mind would accept as sufficient to support a conclusion. While it consists of more than a mere scintilla of evidence, it may be substantially less than a preponderance of the evidence.”
This test was apparently adopted because the hearing officer, as the trier of fact, had the opportunity to hear testimony and view the witnesses; therefore, his decision should be upheld so long as it is supported by substantial evidence on the whole record. Timmons v Dep’t of Social Services, 89 Mich App 330, 340; 280 NW2d 515 (1979).
In the instant case petitioner does not dispute that he hit Koski. He merely contends that is was accidental. Koski testified that petitioner swung at him, and this was corroborated by the other witnesses. The only dispute then is over intent. Intent must often be inferred from the surrounding circumstances as pointed out by Van Ochten in her decision granting petitioner a limited appeal. We agree with the circuit judge who stated in his opinion that, "[t]here was credible evidence from which the hearings [sic] officer could find, by a preponderance of the evidence, that Campbell intentionally struck the officer and therefore was guilty of the charge of assault”. This was based on the fact that Pearson stated that he saw petitioner "throw a punch” which can easily be interpreted to be an intentional act. Also, Koski himself stated that petitioner "swung at him”; this too carries a connotation of intent. Thus, there was some evidence which a reasonable mind could accept as sufficient to support a conclusion.
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Per Curiam.
Defendant pled guilty to unarmed robbery, MCL 750.530; MSA 28.798, and was sentenced to from 10 to 15 years in prison. He appeals as of right.
Prior to the sentencing hearing, defendant moved to withdraw his plea in the following manner:
"Comes now the defendant, Anthony Woods, through his court appointed counsel, Douglas L. Williams, and moves this Honorable Court to allow the defendant to withdraw his plea and further requests a trial by jury for the following reasons:
"1. That the defendant previously had entered a plea of guilty to unarmed robbery in this court and cause.
"2. That since that time, defendant has had time to further consider this matter and now wishes to withdraw his plea of guilty to unarmed robbery and proceed to trial on the armed robbery charge.”
The trial court denied the motion.
On appeal, defendant contends that the trial court abused its discretion in denying the motion to withdraw his plea and requests a remand to the trial court for an evidentiary hearing regarding the nature of his motion to withdraw his plea.
We observe that at no time did defendant assert that he was innocent. Nor was defendant’s motion, as appellate counsel now contends, "tantamount to an assertion of involuntariness and misunderstanding”. Rather, defendant simply indicated that he had changed his mind. Were such an assertion sufficient, then withdrawal of a guilty plea would be essentially a matter of right, rather than a matter of discretion.
The record shows that defendant waited until the day before trial, after out-of-state witnesses had been brought in, before he decided to enter a plea of guilty. When defendant filed his motion to withdraw his plea, he also filed a motion to dismiss his court-appointed counsel and a motion to disqualify the trial judge. This Court is extremely reluctant to reverse where the record strongly suggests that the defendant was employing a motion to withdraw as a dilatory tactic.
We hold that even under the "great liberality” standard, see People v Lewandowski, 394 Mich 529; 232 NW2d 173 (1975), the trial court did not abuse its discretion in denying defendant’s motion to withdraw his plea.
Affirmed. | [
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Allen, J.
Plaintiff filed suit in her individual and representative capacities against the Sanilac County Road Commission and Bridgehampton Township for personal injuries and the wrongful death of her husband, which occurred as a result of a January 15, 1977, automobile accident. Plaintiff claimed that her injuries were the result of the defective and unsafe condition of the intersection of Maple Grove Road and Nichol Road, both county roads under the jurisdiction of the Sanilac County Road Commission (hereinafter defendant). A directed verdict in favor of Bridgehampton Township was granted and is not at issue in this appeal. Following a two-week jury trial in May, 1981, the jury returned a verdict in favor of plaintiff estate for $700,000, which was reduced by the 15% comparative negligence attributed by the jury to decedent and by $20,000, which represented the settlement obtained from a suit involving the other driver, Matthew Bye. Plaintiff received $75,-000 for her individual injuries, which amount was reduced by $19,500 received in settlement from the Bye estate. The total damage award was $630,500. Defendant’s motions for new trial, judgment notwithstanding the verdict and remittitur were denied by an order entered on August 3, 1981.
Defendant appeals as of right raising seven issues. Plaintiff cross-appeals as of right raising one issue. We first address the issues raised by defendant.
I
Did the trial court err by requiring defense COUNSEL TO REFER TO PLAINTIFF BY HER FORMER MARRIED NAME RATHER THAN HER CURRENT MARRIED NAME?
Prior to trial plaintiff filed a motion in limine to determine whether plaintiff should be addressed at trial as "Jo Ann Jones” (her previous married name) or "Jo Ann Hall” (her current married name). Evidence of plaintiff’s remarriage may not be used to determine damages suffered by the plaintiff upon the death of her spouse. However, the plaintiff will not be permitted to affirmatively misrepresent her marital status to the jury. The plaintiff should be addressed by whatever name she regularly uses, whether it be her birthname, her name from a prior marriage, or the name of her present husband. Wood v Detroit Edison Co, 409 Mich 279; 294 NW2d 571 (1980).
Evidence presented at a hearing on the matter showed that many accounts and records were maintained in the name of Jo Ann Jones and several of plaintiff’s friends and co-workers who knew her previous to her remarriage referred to plaintiff as Jo Ann Jones. Based on this evidence the trial court concluded that plaintiff still maintains an identity under the name of Jones and, therefore, that it would be proper to address her by that name at trial.
However, it is the name which plaintiff herself uses that should be the appropriate form of address. Plaintiff regularly uses the name Hall and although for some purposes, such as her insurance checks, the mortgage for her farm land and loan papers on her current residence, she uses the name Jones, all those occurrences happened prior to her marriage in 1978. We believe that the court erred, and that under Wood, supra, plaintiff should have been referred to at trial as Hall. However, we do not believe that reversal is the proper remedy under the circumstances since: (1) plaintiff properly brought the motion before trial to avoid any impropriety or prejudice and the trial court made a ruling on this issue in her favor, (2) as determined by the trial court, interjection of plaintiff’s remarriage would create prejudice and speculation on the part of the jury and (3) since plaintiffs remarriage was not relevant to the case, defendant was not prejudiced by the use of plaintiffs former name. We note that the Wood case involved an interlocutory appeal. The Court can easily correct an erroneous evidentiary ruling prior to trial where an application for leave to file an interlocutory appeal has been granted. However, due to the gravity of reversal once a trial is concluded, we will not reverse for an erroneous evidentiary ruling unless the appellant’s case was prejudiced.
II
Did the trial court erroneously admit the TESTIMONY OF DUANE DUNLAP AND THE INVESTIGATING POLICE OFFICERS?
At trial, plaintiff introduced evidence to illustrate that the intersection of Maple Grove and Nichol Roads was unsafe due to a visual obstruction in the southeast quadrant. There were no traffic control signs or speed signs at the intersection, which plaintiff argued were required for vision obstructed intersections under the standards established by the Association of State Highway and Transportation Officials and defendant’s rules. Both lay and expert witnesses testified that a vehicle proceeding westbound on Nichol Road and a vehicle proceeding northbound on Maple Grove Road would be unable to perceive the approaching traffic due to a ridge or rise in the southeast quadrant. The investigating officers, Sergeants Thomas and Kenny, gave testimony establishing the point of impact of the Jones and Bye vehicles and the results of a test conducted on January 16, 1977, to determine the sight distances at the intersection. The expert testimony of Duane Dunlap was offered on sight distance of the intersection and speed of the vehicles.
A
Defendant argues that Duane Dunlap did not possess sufficient qualifications to testify as an expert in traffic engineering or accident reconstruction. The qualification of a witness as an expert is a matter for the discretion of the trial court and it is "incumbent on the person offering an expert witness to show that the witness possesses the necessary learning, knowledge, skill or practical experience to enable him competently to give such testimony”. Siirila v Barrios, 398 Mich 576; 248 NW2d 171 (1976). The decision of the trial court regarding the qualifications of an expert will not be reversed absent an abuse of discretion. Wood v Posthuma, 108 Mich App 226; 310 NW2d 341 (1981).
Dunlap has three engineering degrees. He worked at the Highway Safety Research Institute between 1969 and 1976, where he dealt with crash characteristics of roadside structure, problems with curve and grade combinations in roadways, and accident causation and reconstructions. Since 1976, Dunlap has worked as an independent consulting engineer. He has been involved in reconstructing approximately 100 to 200 accident cases, including 50 to 100 cases involving highway safety or design factors. He has written numerous articles concerning highway safety and is familiar with the basic standards promulgated by the American Association of State Highway and Transportation Officials regarding the design and maintenance of roadways. The record amply supports the trial court’s determination.
B
Defendant argues that the police officers and Dunlap possessed insufficient knowledge of the pertinent facts to formulate conclusions relative to the cause of the involved automobile accident. Defendant argues that Sergeant Thomas’s opinion as to the point of impact was based on no credible evidence. Defendant further argues that Dunlap’s opinion as to the cause of the accident was rendered without an examination of the mechanical condition of the vehicles involved in the accident and a determination of the physical state of the involved drivers.
Sergeant Thomas established the point of impact based on his observation of the final resting place of the vehicles, chunks of snow and ice debris in the roadway and a scuif mark in the intersection. An expert’s opinion may be based solely on debris and skid marks observed at the scene. Motorists Mutual Ins Co v Howard, 21 Mich App 146; 175 NW2d 351 (1970). See also Dudek v Popp, 373 Mich 300; 129 NW2d 393 (1964). Evidence that the conditions may have changed due to lapse of time between the accident and Thomas’s observations and the severe weather conditions prevalent relates to the credibility of the witness rather than the admissibility of his testimony.
As to Dunlap’s testimony, MRE 705 provides that an expert may give opinion testimony without first disclosing the underlying facts for his opinion. On cross-examination, the expert may be required to disclose the underlying facts. Dunlap based his opinion on the observations and tests performed by the investigating officers and upon his own observations and the three sight-distance tests performed on March 6, 1978. He testified concerning the scientific principles he utilized in reaching his decision and the factors incorporated into his evaluation. Dunlap was subject to extensive cross-examination concerning the basis for his opinion. Defendant brought out the fact that Dunlap did not personally examine the vehicles or question plaintiff concerning her husband’s physical condition. Those factors affect the weight to be given Dunlap’s testimony by the trier of fact and do not indicate an insufficient factual foundation for the totality of his testimony. Further, there is no indication or support in the record that information concerning those two factors would have altered or impacted upon Dunlap’s opinion.
C
Defendant next argues that the trial court erroneously admitted testimony of the tests conducted by Sergeants Thomas and Kenny and by Dunlap because they were not conducted under conditions similar to the conditions at the time of the accident.
The admissibility of test results and experiments performed by experts and nonexperts is a matter within the wide discretion of the trial judge. Hartford Fire Ins Co v Walter Kidde & Co, Inc, 120 Mich App 283; 328 NW2d 29 (1982). Before evidence of such tests can be admitted, a proper foundation must be laid to show that the test or experiment properly duplicates the conditions leading to the lawsuit. Elliott v A J Smith Contracting Co, Inc, 358 Mich 398; 100 NW2d 257 (1960).
On January 16, 1977, Sergeants Thomas and Kenny returned to the accident scene to determine if the hill or rise they observed in the southeast quadrant of the intersection would influence drivers on Maple Grove and Nichol Roads. The officers began at points before the intersection and pro ceeded at approximately five to ten miles per hour toward the intersection. The officers stopped their patrol cars at a point where they were able to see the upper halves of the vehicles. They then paced the distance to the intersection and determined it to be approximately 100 feet from both vehicles.
Dunlap conducted three tests at the accident site on March 6, 1978. He utilized a 1977 Chevrolet pickup truck and a 1970 Javelin to determine sight-distance measurements. Those vehicles were similar to the vehicles driven by Kenneth Jones and Matthew Bye. Distances along both roadways were marked off at 50-foot intervals. The vehicles were then positioned and photographs and measurements were taken, illustrating the points at which the other vehicle was visible across the southeast quadrant at various distances. Dunlap performed a second test utilizing a 3'6" marker. Dunlap testified that this was a standard test condition for establishing sight distances, which was recognized in the Michigan Manual of Uniform Traffic Control Devices. The third test was performed at night to determine at what distance headlights from a vehicle approaching from the opposite corner of the intersection could be observed. The cars were driven slowly towards the intersection and at approximately 200 to 220 feet from the intersection a "glow” could be observed by both drivers.
Defendant claims that none of the tests possessed the requisite degree of similarity necessary as a condition precedent to admissibility. While, as defendant argues, there were differences between the conditions of the vehicles, the weather and the lighting, the tests were not conducted in an attempt to factually recreate each element of the accident. The tests were performed with the objec tive of determining whether the rise or ridge in the southeast quadrant would in any way have an effect on the ability of a driver of a northbound vehicle on Maple Grove to observe a vehicle driven westbound on Nichol Road. The intersection itself had not been altered or changed in any material fashion. The conditions existing at the time of the tests were similar to those in existence on the night of the accident. The trial judge did not abuse his discretion in allowing the police officers and Dunlap to give testimony regarding the tests and the results.
D
Defendant finally claims that the "conservation of momentum” theory utilized by Dunlap in arriving at his estimation of the speeds of the vehicles has not been accepted in the scientific community in the field of accident reconstruction and therefore testimony and conclusions based thereon should have been excluded. Dunlap testified that the theory was developed in the 18th century by Isaac Newton and that it was a well-recognized scientific principle. The theory and Dunlap’s knowledge of the type and weight of the vehicles involved in the collision, the paths traveled by the vehicles after impact, and the police reports concerning the point of impact were used to determine the relative speed of the vehicles. Dunlap testified that the Bye vehicle was traveling at approximately 33 to 44 mph and that the Jones vehicle was traveling at approximately 23 to 33 mph. Testimony concerning the relative speed of the vehicles was designed to assist the jury in their determination of whether the sight distance of the intersection was a probable cause of the collision and furnished the groundwork for Dunlap’s later opinion.
As a basic law of physics, testimony on the "conservation of momentum” theory was admissible. See O’Dowd v Linehan, 385 Mich 491; 189 NW2d 333 (1971), holding admissible similar testimony concerning the principles of inertia and forces of collision. The range of speeds does not conclusively establish that Dunlap’s tests were unreliable or unscientific. Without eyewitnesses or knowledgeable survivors, the estimation of the speed of a traveling vehicle must be determined by resort to scientific principles. Those variables were proper subjects of cross-examination and the variation of the speed estimates was brought to the jury’s attention. The testimony was properly admitted and defendant’s arguments are related to the weight and credibility of the testimony and not to the admissibility.
Ill
Was the trial court’s determination of the LEGAL STATUS OF MAPLE GROVE ROAD IN ERROR?
Defendant’s claim on this issue, like Gaul, is divided into three parts. First, defendant contends the trial court erred in making the determination that Maple Grove Road was a "primary” road. Contrary to defendant’s claim, the record shows that the trial judge did not make the designation. The uncontroverted testimony at trial, by both plaintiff and defense witnesses, indicated that Maple Grove Road was certified and designated as a primary road in 1973. See MCL 247.652; MSA 9.1097(2). At the conclusion of the separate record testimony of Frederick Elwood, the trial judge stated: "There doesn’t seem to be any question but what [sic] that in 1973 the State certified Maple Grove Road at its intersection with Nichol Road as a primary road.” That statement was made outside the presence of the jury and at no time did the trial judge inform the jury that as a matter of law Maple Grove Road was in fact a primary road.
Second, defendant contends that the trial judge erred when he allowed the jury to decide whether a change in a 1976 State Highway Department policy directive should be applied retroactively. According to defendant, the question should have been decided by the court. Because of a conflict in the testimony, we find that the trial court properly allowed the jury to decide the issue. Frederick Elwood testified as to the unwritten policy prior to 1976 and the policy change which occurred in 1976 requiring that roads meet primary standards prior to their certification by the state.
At the conclusion of the separate record, the trial judge noted that there was no indication that the 1976 policy change was retroactive as to roads that had previously been certified. The trial judge determined that he could not make a legal determination at that time but would leave the issue to the jury to decide what standards would apply to Maple Grove Road. The trial judge noted that there was a conflict in the testimony but that there was no written policy which would establish that the county had the affirmative duty to upgrade all roads previously certified to primary status by virtue of the 1976 letter. There was a conflict in the testimony on this issue and the trial judge properly left it to the jury’s determination.
Third, it is claimed that the trial judge erred in refusing to give defendant’s proposed jury instruction number 5, that although Maple Grove Road was designated a primary road such designation did not conclusively make it a primary road. De fendant cites no law or authority supporting its position. Given the fact that the uncontroverted testimony of both parties was that the road was designated primary and the fact that no law is cited in support of defendant’s position, we decline to find error.
IV
Did the trial court err by not allowing REFERENCE TO BE MADE TO A PRIOR LAWSUIT BETWEEN THE ESTATE OF MATTHEW Bye AND PLAINTIFF?
Plaintiff moved in limine to prohibit reference to the prior lawsuit and resulting settlement between the Bye estate and plaintiff. Defendant argued then, and now argues on appeal, that reference to the pleadings and settlement were admissible: (1) to lessen defendant’s liability, (2) to illustrate the contributory negligence of Matthew Bye and the negligence of decedent, and (3) to impeach plaintiff by a party admission.
Prior to trial the parties agreed to reduce any damages awarded by the jury by the amount received in the settlement. The principal reason for admitting evidence of prior settlements is to prevent double recovery to the plaintiff. Where, as here, the parties have agreed to deduct the settlement from any ultimate recovery, double recovery is precluded. Silisky v Midland-Ross Corp, 97 Mich App 470; 296 NW2d 576 (1980). Stitt v Mahaney, 403 Mich 711; 272 NW2d 526 (1978), involved the effect of a release of the original tortfeasor on the remaining defendants. The Supreme Court held that the "boiler plate” language of the release was open to differing interpretations and therefore the release was properly submitted to the jury to determine the intent of the parties. In Brewer v Payless Stations, Inc, 412 Mich 673, 679; 316 NW2d 702 (1982), the Supreme Court held that in trials commencing after March 1, 1982:
"[T]he policy in Michigan shall be: When there is no genuine dispute regarding either the existence of a release or a settlement between plaintiff and a codefendant or the amount to be deducted, the jury shall not be informed of the existence of a settlement or the amount paid, unless the parties stipulate otherwise.”
Although the Supreme Court affirmed the conclusion reached by this Court, the decision was rendered as a matter of policy and not of law. Here, there is no dispute as to the amount of the settlement or that plaintiff reserved her right to proceed against the present defendant. Trial in the instant case was held May 5-19, 1981. Based on existing case law at that time, the trial judge properly excluded evidence of the settlement for the purpose of mitigating damages.
Was evidence of the settlement admissible for purposes of disclosing possible contributory negligence of Matthew Bye? We think not. No testimony was brought out at trial in reference to any alleged negligence of Bye and defendant made no offer of proof on this issue. At the conference on jury instructions, defense counsel stated: "There is no allegation or there’s nothing been brought up at this trial that would indicate any negligence on the part of Bye.” Defendant may not claim error on appeal when the issue was not preserved at trial by any offer of proof and was not argued at trial. Finally, there is no claim that the prior settlement released this defendant from liability. In this respect, the case is distinguished from Stitt, supra, as that case involved an ambiguous release and the issue of the intent of the parties in signing the release was submitted to the jury.
Finally, was defendant’s right of cross-examination impermissibly restricted because defendant was unable to impeach plaintiff by the prior pleadings and consent judgment? There is no evidence that defendant made an offer of proof concerning the contents of the pleadings or the consent judgment. When a party claims error in the exclusion of evidence, it is essential that the party seeking its admission make the relevant facts known to the trial court so that it may rule intelligently on its admissibility. Illenden v Illenden, 46 Mich App 710; 208 NW2d 565 (1973). Defendant’s failure to place sufficient facts on the record precludes meaningful appellate review.
Pleadings and prior inconsistent statements may be admissible for impeachment purposes at a later trial. However, defendant has not disclosed the existence of any inconsistency in plaintiff’s testimony and failed to make an offer of proof at trial. Cases cited by defendant may be distinguished in that each permitted impeachment by prior pleadings when the witness had denied sustaining injuries which had been pled in the previous case. See Schwartz v Triff, 2 Mich App 379; 139 NW2d 907 (1966); Selph v Evanoff, 28 Mich App 201; 184 NW2d 282 (1970); Hanik v Wilczynski, 33 Mich App 268; 189 NW2d 815 (1971). Defendant’s failure to make an offer of proof as to any alleged inconsistency precludes meaningful appellate review.
Defendant’s argument that the consent judgment constitutes an admission binding on plaintiff concerning the negligence and liability of Matthew Bye is not persuasive. Parties may enter into a consent judgment for a variety of reasons and, as noted above, consent judgments do not reflect the full satisfaction of a party’s claim. Defendant had the opportunity to present evidence at trial regarding Bye’s negligence. No testimony was offered and, at the conclusion of the trial, defendant admitted that there was no allegation or proof of Bye’s negligence. The consent judgment did not effectuate a release of the present defendant. Defendant has failed to preserve the issue for appeal.
V
Did the trial court err by excluding the EVIDENCE OF PLAINTIFF’S SUBSEQUENT CHILDBIRTHS?
Defendant sought to introduce evidence that, following plaintiff’s remarriage, she had given birth to two children. Defendant’s offer of proof was for the purpose of offsetting plaintiff’s claim for lost wages during the two maternity leaves and to minimize the extent of plaintiff’s claimed residual disabilities. The trial court ruled as follows:
"Next, it is argued by defendants that the jury must be told that plaintiff has given birth to these two children, as well as the one with which she was pregnant at the time of the accident, so that this fact may be considered by the jury in determining the nature and extent of her alleged back and pelvic area problems. In weighing these two conflicting considerations, the court believes, as indicated in the court rule, that we must involve ourselves in a weighing process. It is the opinion of this court that even for this purpose, the fact of these two after born children should not be made known to the jury because the prejudice to the plaintiff outweighs the probative value of the evidence. In this connection, counsel should abide by the following rules: 1. The plaintiff shall make no claim or reference in the testimony to injuries sustained in the accident in any way relating to childbearing problems experienced by plaintiff in connection with the birth of the last two children, and likewise the defendant’s counsel shall make no reference thereto. However, as to the birth of the first child born, following the accident, and with which the plaintiff was pregnant at the time of the accident, this may be examined into by any party. Next, the plaintiff shall make no claim for, in inquiry into any time during which the plaintiff was absent from work due to maternity or illness caused by maternity or pregnancy, and neither shall the defendants inquire into such matters.
"Okay. Does anyone have an objection in that regard, if it’s stated to the jury that she was off on a sick leave, that had nothing to do with the injuries resulting in this accident.”
We find this claim to be the most meritorious of the several issues raised on appeal. At first blush, it would appear that if it had known that the injured party had given birth to two healthy children several years later the jury might not have awarded so large a verdict. Nevertheless, though the issue is admittedly close, we decline to reverse.
Plaintiffs medical testimony consisted of a deposition of Dr. Jack Martin, an orthopedic surgeon, and a video deposition of Dr. Edward Nebel, who first saw plaintiff on March 15, 1978, and treated her for left low back pain and numbness and pain in her left leg. Martin testified that plaintiff would continue to have sacroiliac pain for years to come. Nebel performed a laminectomy in April, 1978, and authorized plaintiff to return to work in August, 1978. He next saw plaintiff in February, 1980, when she complained of mild pain in the left leg and back. He prognosticated as follows:
"A. She is borderline between the eight [sic] and twenty percent. Eighty percent of the people have absolutely no symptoms at all. Here she has occasional symptoms in her left buttocks and again this issue is clouded a little bit. Is that truly from her L-4 disc or from the left sacroiliac joint injury. Both of them give you symptoms in the same area, and then I am suspicious of that SI joint giving her some mild backache. She is not having any leg symptoms which are usually from a nerve root compression, or referred pain from lumbar disc.
"Q. With respect to the SI joint, the sacroiliac joint, would you expect that condition, doctor, to stay about the same, get better, get worse?
"A. I think it would stay about the same, experience intermittent symptoms and there is no gross fracture of the joint. There was not a real wide separation.”
Basically, defendant claims that the ability to produce children in itself evidences a lack of severity of injuries previously sustained. But in the absence of some medical testimony to this effect, it does not necessarily follow that this is true. Defendant did not produce a medical expert. In fact, defendant never had the plaintiff examined by a medical doctor. Consequently, defendant never made a conditional offer of proof to link childbirth to a lower degree of injury or pain. While defendant refers to cases holding that subsequent activities of an injured party may be admissible if they have a bearing on the extent of the injuries sustained, defendant introduced no medical proofs that childbearing resulted in or could be equated with a lower threshhold of pain and suffering in the instant case.
Pursuant to the trial court’s ruling, plaintiff did not claim loss of earnings during the periods of pregnancy. Although her complaint alleged complications of pregnancy, this portion of her claim was dropped prior to trial. A determination by the trial court that the prejudicial effect of evidence outweighs its probative value rests within the sound discretion of the trial court and will only be overturned for an abuse of discretion. People v Castillo, 82 Mich App 476; 266 NW2d 460 (1978). The obvious potential prejudicial impact of this evidence on a jury who would think the plaintiff was having children out of wedlock was great compared to its limited probative value. Defendant did not offer evidence to show that plaintiff’s injuries were less severe than claimed or that the injuries were not permanent. Defendant sought only to introduce the "possibility” that plaintiff would fall within the 80% category of individuals who do not have significant problems following disc surgery. However, plaintiff continued to have pain after the surgery and the births and Dr. Nebel did not rule out the possibility that the separated sacroiliac joint was causing the recurring pain. Based upon the limited medical testimony available, we conclude that there was an insufficient foundation to illustrate a connection between the injuries sustained, and their severity, and the subsequent pregnancies. Accordingly, we find no abuse of discretion on the part of the trial court.
VI
Did the trial court err by denying defendant’s MOTION FOR A NEW TRIAL?
Defendant contends that there was insufficient testimony to sustain the verdict on both the question of defendant’s negligence and on the extent of damages. On the first question the central issue was whether there was a visual obstruction in the southeast quadrant of the intersection which rendered the intersection unsafe for travel. Defendant argues an insufficiency of the evidence on the grounds that the testimony of Duane Dunlap and the investigating police officers was erroneously allowed. That is the same issue as discussed at length in part II (A-D) of this opinion. Because this testimony was properly admitted, there clearly was ample evidence both in testimony and exhibits to support the verdict of the jury.
On the question of damages, defendant contends that the award to the estate of $700,000 was excessive and that the trial judge should have granted defendant’s motion for remittitur. In reviewing a decision of the trial court to grant or deny a remittitur or new trial, this Court must determine whether there has been an abuse of discretion. Burnett v Mackworth G Rees, Inc, 109 Mich App 547; 311 NW2d 417 (1981). The remittitur power should be exercised with restraint. Courts are reluctant to disturb jury verdicts in personal injury cases and give great deference to the jury determination. Where the trial court finds no other errors in the trial, remittitur may only be ordered if the verdict is so excessive as to "shock the judicial conscience”. Pippen v Denison Div of ABEX Corp, 66 Mich App 664; 239 NW2d 704 (1976). Damages are not speculative merely because they cannot be ascertained with mathematical precision. Here, the jury was cognizant of decedent’s age, occupation, and first-year farm earnings and had access to the statutory mortality tables. Defendant offered no evidence to lessen or reduce the earning potential of decedent. Defendant did not argue damages to the jury and made no attempt to show that decedent’s farm earnings were in any way excessive. The jury verdict is within the range of evidence and represents a reasonable assessment of damages.
Defendant also claims that the $75,000 award to plaintiff in her individual capacity was excessive and not supported by the evidence. As a result of the accident, plaintiff sustained the following injuries: frost-bitten hands and feet, fractures of her left inferior and superior pubic ramus, separation of the left sacroiliac joint and a fracture of her right collarbone; intermittent pain in her left low back with numbness and tingling in her left leg; a loss of fine sensation in her fingertips; and, following a fall on the ice in February of 1978, which occurred when her left leg gave out, had disc surgery; had to limit herself during her work as a registered nurse due to difficulty in bending and. supporting additional weight; has some difficulty performing usual household chores, such as vacuuming, laundry and dishwashing; and, although offered a full-time supervisory position, was afraid that her back pain would be aggravated by the extra work and did not accept the position.
The nature and extent of plaintiff’s injuries were detailed fully at trial. In personal injury cases, unless the amount awarded "shocks the judicial conscience”, remittitur is inappropriate. Pippen, supra. There is no absolute standard by which juries or courts can measure the amount of damages. Evidence was presented to show plaintiff’s lost wages, pain and suffering and difficulty performing normal tasks of life. No claim was made by plaintiff for the time that she lost from work for her two subsequent maternity leaves. The jury was informed that the plaintiff was off work during those periods of time for an unrelated illness. The verdict was within the range of evidence and does not appear to be an unreasonable amount.
VII
Did the trial court err by instructing the JURY THAT DAMAGES COULD BE AWARDED FOR LOSS OF CONSORTIUM?
Relying heavily on Endykiewicz v State Highway Comm, 102 Mich App 662; 302 NW2d 271 (1981), defendant contends that the trial court erred when it instructed the jury that damages could be awarded for loss of consortium. In answer, plaintiff notes that in Longworth v Dep’t of State Highways, 110 Mich App 771; 315 NW2d 135 (1981), another panel of this Court refused to follow Endykiewicz and allowed damages for loss of consortium. On October 5, 1982, the Supreme Court resolved the conflict by unanimously holding in Endykiewicz on appeal that damages for loss of companionship and society may be recovered. Endykiewicz v State Highway Comm, 414 Mich 377, 384; 324 NW2d 755 (1982). Accordingly, we hold that the trial court did not err on this issue.
VIII
Did THE TRIAL COURT ERR IN DEDUCTING THE PERCENTAGE OF PLAINTIFF’S DECEDENT’S COMPARATIVE NEGLIGENCE FROM THE VERDICT SINCE DEFENDANT’S NEGLIGENCE IS PREMISED UPON THE FAILURE TO PROVIDE A SAFETY DEVICE?
This issue is raised by plaintiff as cross-appellant. Relying on Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974), which held that contributory negligence may not be raised as a defense where injury results from a defendant’s failure to provide a safety device, cross-appellant urges that, similarly, comparative negligence may not be raised as a defense where injury results from the failure to provide safety signing. Funk was decided prior to Michigan’s adoption of com parative negligence in Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979).
However, we believe this question has been resolved against cross-appellant by Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich 29; 323 NW2d 270 (1982). In that case the Supreme Court held that comparative negligence was available in a negligence action involving the failure to provide a safety device. Likewise, in Wade v State Highway Comm, 92 Mich App 234; 284 NW2d 522 (1979), lv den 408 Mich 852 (1980), and Hall v Dep’t of State Highways, 109 Mich App 592; 311 NW2d 813 (1981), lv den 413 Mich 942 (1982), panels of this Court refused to extend the Funk analysis to cases involving a breach of the statutory duty to maintain roadways in a reasonably safe condition. In Hall, supra, this Court affirmed the 75% reduction in the damage award attributed to plaintiffs percentage of negligence. In the present case, defendant brought out testimony showing plaintiffs decedent’s familiarity with the intersection in question. Defendant had placed into issue the question of Kenneth Jones’s negligence. The jury returned a special verdict indicating that Kenneth Jones was 15% comparatively negligent. That figure was utilized to reduce the total damage award. Under Hardy, Wade and Hall, supra, the reduction was proper. We affirm.
Affirmed both as to the complaint and cross-complaint. No costs, neither party having prevailed in full.
Danhof, C.J., concurred.
Wood v Davenport, 127 Cal App 2d 247; 273 P2d 564 (1954); Tucker v Lower, 200 Kan 1; 434 P2d 320 (1967).
The $700,000 was reduced by 15% ($105,000) to reflect the jury finding that the deceased was 15% negligent. The resulting $595,000 was then reduced by $20,000 which was paid in the settlement between Bye’s insurer and plaintiff. | [
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Per Curiam.
This appeal presents the following issue: Where an order creating a guardianship is void ab initio for lack of probate court jurisdiction, does the probate court have authority to require the de facto guardian to account to his ward? The circuit court answered that question in the negative. We reverse the order of the circuit court and affirm the probate court’s order allowing the account.
On October 3, 1977, appellant Carl L. Jones signed a petition for guardianship prepared by appellee Norman Burr and naming Burr as guardian. Burr did not consult Jones about the information in the petition. Although the petition and proceedings thereon were legally inadequate in several respects, the Hillsdale County Probate Court entered an order purporting to appoint Burr guardian of both the person and estate of Jones. Burr took control over Jones’s estate which consisted of approximately $9,628 in bonds and accounts which Jones owned jointly with his mother. During the existence of the guardianship, Jones’s total estate was exhausted, in large part by monthly payments to the adult foster care home at which Jones resided. Jones now relies upon general assistance.
On or about August 7, 1979, Jones filed a petition in the Hillsdale County Probate Court seeking, inter alia, discharge of the guardian, an accounting and damages. On September 25, 1979, Jackson County Probate Judge Kevin Daly, sitting by assignment, terminated the guardianship and ordered an accounting. Following a hearing held on January 10, 1980, Judge Daly allowed the account, finding no impropriety on the part of Burr.
Jones appealed to the Hillsdale County Circuit Court and Lenawee County Circuit Judge Kenneth Glaser, Jr., was appointed to hear the appeal. Following a hearing, Judge Glaser found that the Hillsdale County Probate Court had no jurisdiction to impose the original guardianship and, therefore, no jurisdiction to settle any further disputes between Jones and his de facto guardian. The circuit court held that Jones’s only remedy for the imposition of an invalid guardianship was to sue for breach of contract or tort in a court of appropriate jurisdiction. This Court granted Jones’s delayed application for leave to appeal.
Both parties agree that the order creating the guardianship was void ab initio because of certain jurisdictional defects in the petition and proceedings thereon. The parties also agree that, as a de facto guardian, Burr was subject to all the responsibilities that attach to a legally appointed guardian, including the duty to account to his ward. The only dispute is whether the probate court has authority to order an accounting or whether appellant Jones’s remedy lies in a court of general jurisdiction.
We believe this case is controlled by the Supreme Court’s decision in In re Cameron’s Estate, 157 Mich 398; 122 NW 278 (1909). In that case Susie Smith was appointed guardian of the petitioner, but the order failed to state that she was to be guardian of the estate. There were in addition certain procedural inadequacies in the guardianship. Upon the ward’s petition, the probate court terminated the guardianship and ordered an accounting. The Supreme Court affirmed, stating:
"In this case it is set out that there was no order appointing Susie Smith guardian of the estate of the petitioner. It was held in North v Washtenaw Circuit Judge, 59 Mich 624; 26 NW 810 (1886), that it was essential that the adjudication concerning both person and estate should appear of record. This was reaffirmed in In re Bassett, 68 Mich 348; 36 NW 97 (1888).
"In Gillett v Needham, 37 Mich 143 (1877), it was held that whatever may be the immunity of letters of administration from attacks from strangers, parties interested may always take advantage of a want of jurisdiction in the court which issued them. This was reaffirmed in Breen v Pangborn, 51 Mich 29; 16 NW 188 (1883). In the present case there is no question that Susie Smith was de facto guardian of this ward. This gave him the undoubted right to have an accounting of her administration, if he saw fit to invoke the aid of the court which had assumed to make the appointment. This he might do without admitting the regularity of the appointment. We see, therefore, no impropriety in the form of the petition which asks that the letters of guardianship be revoked and canceled, and also that an accounting be had.” 157 Mich 401-402.
By statute, Michigan probate courts have exclusive jurisdiction over all of the following:
"(d) Appointment of a guardian, limited guardian, or conservator in cases prescribed by law, resolution of any contested matter in respect to the estate or ward, and settlement of the estate.” MCL 700.21(d); MSA 27.5021(d).
We believe the statute confers jurisdiction on the probate court to order an accounting under the circumstances of this case. The concern for judicial economy favors permitting a ward to seek termination of a guardianship and request an accounting in a single proceeding. We also believe the probate courts are better suited to supervise an accounting by a de facto guardian than are courts of general jurisdiction.
Appellant Jones next contends that the probate court clearly erred in allowing the account filed by the de facto guardian. The probate court found that Burr acted in good faith, properly accounted for all of the funds handled by him, and charged a moderate and reasonable fee for his services. This Court will not reverse the findings of a probate court sitting without a jury unless the evidence clearly preponderates in the opposite direction. In re Howarth Estate, 108 Mich App 8, 10; 310 NW2d 255 (1981). This Court has reviewed the record and each of the items contested by appellant Jones and finds that the evidence does not preponderate contrary to the probate court’s findings.
The circuit court’s order is reversed and the probate court’s allowance of the account is affirmed. | [
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After Remand
Before: Danhof, C.J., and V. J. Brennan and N. A. Baguley, JJ.
Per Curiam.
The facts of this case are discussed in our previous opinion, In the Matter of Creed, 126 Mich App 32; 337 NW2d 41 (1983), and will not be repeated here. The previous appeal was remanded to the probate court for a hearing to enable the probate judge to determine whether petitioners had met the good cause requirement of MCL 710.67; MSA 27.3178(555.67).
Upon remand, the probate judge held a hearing and determined that petitioners had shown good cause. Petitioners were allowed to examine the adoption records of Keith Wayne Creed. We have examined the transcript of the probate court proceeding and agree that good cause was shown by petitioners.
Affirmed. | [
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Per Curiam.
Following a jury trial, the defendant was found guilty of second-degree murder in violation of MCL 750.317; MSA 28.549. On appeal by right, the defendant moved for remand for an evidentiary hearing on his claim of ineffective assistance of counsel. This Court denied the defendant’s motion by order, which the defendant appealed to the Michigan Supreme Court. In lieu of granting leave to appeal, the Supreme Court remanded the case to this Court with directions to grant the defendant’s motion for a remand. 411 Mich 881 (1981). This Court ordered the remand and, following an evidentiary hearing, the trial court concluded that the defendant had not been denied the effective assistance of counsel. We now consider the defendant’s appeal by right from his conviction of second-degree murder.
Defendant first argues that he was denied the effective assistance of counsel on the basis of several alleged errors. In reviewing such a claim, we must determine whether the defendant’s trial counsel performed "at least as well as a lawyer with ordinary training and skill in the criminal law” and whether, but for the alleged error, "there was a great likelihood that [the defendant] would not have been convicted”. People v Garcia, 398 Mich 250, 264; 247 NW2d 547 (1976). At the evidentiary hearing held on this issue the trial court, although failing to make any findings of fact, concluded that the defendant had received a fair trial. We agree; we find no serious mistake without which the defendant would have had a reasonable likelihood of acquittal. Garcia, supra. We need address but two of the defendant’s claims regarding this issue.
First, the defendant argues that his counsel was ineffective in failing to call an expert witness to testify about the operation of the defendant’s gun when the defense was that the gun had discharged accidentally. The decision to call a particular witness is a matter of trial strategy. People v Grant, 102 Mich App 368, 374; 301 NW2d 536 (1980). On the basis of the information received at the evidentiary hearing, we cannot conclude that the defendant would have had a chance of acquittal if an expert witness had been called to testify about the functioning of his gun.
Second, the defendant argues that his attorney made a serious mistake in failing to ask for a directed verdict of acquittal on first-degree murder when insufficient evidence was introduced on the element of premeditation. In reviewing a claim regarding the sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Delongchamps, 103 Mich App 151, 159; 302 NW2d 626 (1981). Here, the prosecutor introduced evidence which showed the existence of bad feelings between the defendant and the deceased, that the defendant had stated he was going to "get” the deceased, that the defendant directed his son to park their van in the road so as to block the deceased’s path, that the defendant argued with the deceased while holding a loaded rifle, that the defendant fired one shot, and that the defendant told his son to lie about where they had been. Viewed in the light most favorable to the prosecution, the evidence was sufficient for the jury to conclude that the defendant had planned to ambush the deceased. Since we find that sufficient evidence was introduced on the elements of first-degree murder, the defendant’s claim that his trial counsel was ineffective in failing to move for a directed verdict is without merit. Counsel need not make useless motions. See People v Krokker, 83 Mich App 474, 477; 268 NW2d 689 (1978).
Defendant next argues that the trial court impermissibly required the jury to acquit the defendant of second-degree murder before it could consider the manslaughter charge. In People v Hurst, 396 Mich 1, 10; 238 NW2d 6 (1976), the Michigan Supreme Court held that an instruction which requires all 12 jurors to agree to acquit the defendant of the charged offense before they can consider a lesser offense impermissibly interferes with the jury’s deliberations. However, an instruction which only suggests an order of deliberations is proper. People v Mays, 407 Mich 619, 623; 288 NW2d 207 (1980). Therefore, we must determine whether the instruction, which was not objected to, merely suggested an order of deliberations for the jury or whether it conveyed the impression that the defendant had to be acquitted of the more serious charge before the jury could consider any lesser charge.
In differentiating between murder and involuntary manslaughter, the trial court gave the following instruction to the jury:
"If the evidence in this case does not convince you beyond a reasonable doubt that the defendant intended to kill, you must then consider whether he acted with an unreasonable disregard of human life. It is sufficient for murder of the second degree if the defendant consciously created a very high degree of risk of death and if he had knowledge of the probability of these consequences. However, if you find that the defendant’s acts did not amount to such a criminal purpose aimed against life, you must find the defendant not guilty of murder and consider whether or not he is guilty of manslaughter.”
Upon request by the jury, the above instruction was repeated three times; no objections were raised.
An instruction such as this was given in People v Clark, 106 Mich App 610; 308 NW2d 180 (1981). In that case, this Court found that the instruction did not require the jury to acquit the defendant of murder before considering the manslaughter charge. Rather, the court found the instruction to be a proper delineation of the elements of the charged offenses and held that a direction to the jury to consider the greater offenses first was permissible under Mays, supra. This instruction was also held to be proper in People v Griffin, 108 Mich App 625; 310 NW2d 829 (1981), lv den 412 Mich 878 (1981). See also People v Barker, 101 Mich App 599, 606; 300 NW2d 648 (1980). We conclude that the trial court’s instruction in this case did not require the jury to first acquit the defendant of second-degree murder but rather properly suggested an order of deliberation for the jury to consider.
Defendant also argues that this case should be remanded for resentencing because the defendant did not speak with the probation officer who prepared the presentence report. The presentence report indicates that the defendant was upset and refused to discuss the crime with the probation officer. Defendant argues that, since the trial court did not have any information from the defendant, resentencing is necessary because the trial court lacked sufficient information on which to sentence the defendant.
A presentence report must be based on accurate information. People v Malkowski, 385 Mich 244, 249; 188 NW2d 559 (1971). Defendant does not claim that the presentence report in this case contained inaccurate information. We find that the presentence report’s failure to include the defendant’s version of the event does not require resentencing. Defendant refused to speak with the probation officer. Defendant was given an opportunity to comment on the report and on other matters at the sentencing hearing; he chose not to do so. Where the defendant is given an opportunity to speak at sentencing and chooses not to do so, he may not be heard to later complain that his version of the crime was not presented to the sentencing court. We find no error.
Defendant next argues that the prosecutor impermissibly injected unfounded innuendo into his closing argument. It is well settled that the prose cutor may not make a statement of fact unsupported by the evidence but may draw inferences for the jury from the facts of the case. People v Johnson, 112 Mich App 41; 314 NW2d 794 (1981); People v LaPorte, 103 Mich App 444; 303 NW2d 222 (1981). The prosecutor may also comment upon the testimony of the case and may argue that from the facts and evidence a witness, including the defendant, is not worthy of belief. People v Caldwell, 78 Mich App 690; 261 NW2d 1 (1977); People v Cowell, 44 Mich App 623; 205 NW2d 600 (1973). Appellate review of alleged improprieties in a prosecutor’s closing argument is precluded, absent an objection at trial, unless failure to consider the issue would result in a miscarriage of justice. People v Duncan, 402 Mich 1, 15-16; 260 NW2d 58 (1977).
We find two instances of error made by the prosecutor. First, the prosecutor stated, "Anybody that knows anything about a gun knows that it doesn’t go off unless somebody pulls the trigger, one way or another”. There was no evidence in the record that the defendant’s gun would discharge only if the trigger was pulled; indeed, the theory of the defense was that the defendant’s gun had discharged accidentally. Here, the prosecutor phrased his statement in the form of judicial notice of an obvious fact. Although error, we do not find that it resulted in a miscarriage of justice.
Second, the defendant argues that, during rebuttal, the prosecutor made unsupported statements regarding the defendant’s ten-year-old son. The parties had agreed that the defendant’s youngest son would not testify at trial. On rebuttal, the prosecutor argued that the defendant’s youngest son was a witness to the shooting and that, if called to trial, he would have lied. There is evi dence in the record that he had lied for the defendant concerning a statement he gave to a Michigan State Police detective. However, this does not raise the inference that he would have lied if called as a witness. Although the trial court erred in overruling the defendant’s objection to this argument, we again find the error did not result in a miscarriage of justice; the comment could not have significantly diverted the jury’s attention from the actual issues in the case. People v Knolton, 86 Mich App 424, 428; 272 NW2d 669 (1978).
Finally, the defendant argues that he should receive a new trial on the grounds that the defendant’s older son admitted perjuring himself at trial. Although the defendant’s older son made this admission at the subsequent evidentiary hearing, we find no indication that his new testimony would affect the result of a retrial and, in fact, it was not even helpful to the defendant’s case.
We find the defendant’s remaining claims of error to be without merit. Defendant’s conviction of second-degree murder is affirmed.
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Per Curiam.
In two cases, the City of Livonia joined with individual landowners of the city in challenging the use by the Department of Social Services (hereafter DSS) of residences as adult foster care homes. Their challenges were rejected in the trial courts and they bring separate appeals by right. The cases have been consolidated on appeal. To begin, we address the numerous issues germane to both cases.
We reject plaintiffs’ claim that, with the repeal of 1972 PA 287, the Legislature ended the specific exemption from zoning ordinances for state licensed residential facilities. In doing so, we agree with the reasons stated in Brandon Twp v North-Oakland Residential Services, Inc, 110 Mich App 300, 306-307; 312 NW2d 238 (1981). We adopt the reasoning in the same opinion in rejecting plaintiffs’ claim that only "adult foster care family homes” are included in the exemption from zoning in MCL 125.583b; MSA 5.2933(2). The strength of this interpretation is bolstered by the requirement that an adult foster care facility for more than six persons obtain zoning approval or a special or conditional use permit. MCL 400.716(2); MSA 16.610(66)(2). We also reject the claim that the statute unconstitutionally displaces local zoning power. See Brandon Twp, supra, pp 303-305.
Plaintiffs claim that the presence of an exemption for state licensed residential facilities in the zoning enabling act for cities and villages violates the stricture on statutes having more than a single object. Const 1963, art 4, § 24. This argument is without merit. A restriction on a municipality’s zoning power clearly belongs in the act granting that power. Plaintiffs’ argument that 1979 PA 218 violates this constitutional provision is clearly without merit.
Plaintiffs make two claims concerning lack of standards governing the power of the DSS to prevent excessive concentration of facilities within a city, township or village. This type of analysis in inapplicable. The locating of facilities is an administrative task, not a legislative one. The delegation doctrine simply does not apply. The Legislature has not delegated to DSS the authority to determine the meaning of "excessive concentration”. Plaintiffs remain free to claim that DSS has not complied with the law.
We do not consider plaintiffs’ claim that "mentally ill” persons may not be housed in an adult foster care small group home. It is unnecessary to decide this issue on appeal since the individuals who are to live in the homes are developmentally disabled. Developmentally disabled persons are clearly eligible for placement in adult foster care facilities. See MCL 400.703(4); MSA 16.610(53)(4).
Plaintiffs next claim that DSS failed to comply with statutory requirements by failing to send notice to both the city council, MCL 125.583b(4); MSA 5.2933(2), and the city clerk, MCL 400.732(1); MSA 16.610(82)(1). Instead, the department sent notice to the city’s Bureau of Inspection. There is no question that the council received actual notice long before the issuance of the license. We find no prejudicial error. See Montiy v East Detroit Civil Service Bd, 54 Mich App 510, 515-516; 221 NW2d 248 (1974).
Plaintiffs claim that the notice to neighboring landowners required by statute is inadequate, resulting in a deprivation of their property without due process of law. The interest of an owner in the zoning of property abutting his is one which is guaranteed by statute, not by the state or federal constitution. Baker v Algonac, 39 Mich App 526, 535; 198 NW2d 13 (1972). The need for caution in rezoning to protect the stability of existing zones has also been recognized in judicial decisions. Raabe v City of Walker, 383 Mich 165; 174 NW2d 789 (1970); Baker, supra, p 533. Our Legislature has generally recognized the need for protecting the interests of owners of land affected by zoning decisions short of rezoning which result in changes in use. See, e.g, MCL 125.585(6); MSA 5.2935(6); Brown v East Lansing Zoning Bd of Appeals, 109 Mich App 688; 311 NW2d 828 (1981). Where, however, the Legislature has clearly shown an intent to limit legally enforceable interests of abutting landowners in a zoning decision, the landowners’ constitutional rights are not abridged. See Lamb v Monroe, 358 Mich 136, 147; 99 NW2d 566 (1959).
Plaintiffs have also raised a number of minor claims alleging statutory violations. Plaintiffs’ claim concerning lack of rules required by MCL 400.713(3)(b); MSA 16.610(63)(3)(b) is without merit. See MCL 24.231(2); MSA 3.560(131)(2).
Forbidding the department from issuing the specific licenses involved in these cases is not an appropriate remedy for the alleged violation of MCL 400.709(2); MSA 16.610(59)(2), requiring the department to cooperate with local units of government in administering the act. At the same time, we cannot say that this question was properly decided on summary judgment. If the department has not complied with the law in the past, it may be permanently enjoined from issuing licenses in the future if it fails to take measures to comply. Past compliance is a question of fact. The affidavits and documents used in deciding the summary judgment motion provide insufficient information for this Court to decide the issue.
Plaintiffs claim that the department violated MCL 400.713(4); MSA 16.610(63)(4) by failing to require that the names of lessors of the facility be included on the application for licensure. This claim was not made in plaintiffs’ complaint and is waived. We note that the statute precludes this information from appearing in the notice of the application the department is required to give the city. MCL 400.712(3); MSA 16.610(62)(3). This information should have been supplied to the city as a party in the DSS contested case involving the city’s challenges to these licenses.
We agree with defendant DSS that the city can enforce its building codes if the operation of the facilities results in code violations. We also agree that this question is not ripe for judicial consideration. License denial is not the appropriate remedy if violations are found.
The claim that a violation of the zoning ordinances constitutes an abatable nuisance is without merit.
Finally, we address claims germane only to No. 59727, the Roberts facility. Plaintiffs claim that deed restrictions preclude the proposed use. In deciding cases involving this issue, this Court has consistently considered three factors: 1) the specific language of the restriction; 2) the nature of the proposed operation with particular attention paid to its commercial status; and 3) the basis of affiliation of the residents in the proposed facility. Leland Acres Homeowners Ass’n, Inc v R T Partnership, 106 Mich App 790, 796; 308 NW2d 648 (1981). See Bellarmine Hills Ass’n v Residential Systems Co, 84 Mich App 554; 269 NW2d 673 (1978); Jayno Heights Landowners Ass’n v Preston, 85 Mich App 443; 271 NW2d 268 (1978); Malcolm v Shamie, 95 Mich App 132; 290 NW2d 101 (1980). In Bellarmine, supra, Malcolm, supra, and Leland Acres, supra, this Court held that a state licensed facility was not barred by the covenant in ques tion. In all important respects, the facts in this case (Roberts) resemble those in Bellarmine, Malcolm, and Leland Acres. It was no error to reject this claim.
We affirm the denial of an order preventing the applications from being granted by the department. We affirm generally, except regarding the claim of noncompliance with MCL 400.709(2); MSA 16.610(59X2). Remanded for further proceedings on that issue. We do not retain jurisdiction.
No costs, a public question being involved. | [
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Per Curiam.
The sole issue on appeal is whether as a prerequisite to recover against a payment bond pursuant to MCL 129.201 et seq.; MSA 5.2321(1) et seq., a subcontractor needs to strictly comply with the provisions of that statute. The trial court concluded that strict compliance was necessary and, therefore, granted a motion for summary judgment dismissing plaintiffs claim against the payment bond.
Square D Environmental Corporation (Square D) was a subcontractor of Aero Mechanical, Inc. (Aero), which was a subcontractor of the principal general contractor, Elgin Builders, Inc. (Elgin). The Insurance Company of North America (INA) was the surety to the City of Detroit in the amount of $3,695,000, on behalf of Elgin. Square D took a default judgment against now-bankrupt Aero for $154,819.94, which has not been appealed, set aside or satisfied. The instant action was commenced on March 14, 1980, for unpaid labor and material in the amount of $154,819.94 against the statutory payment bond.
The basis of Square D’s claim is MCL 129.207; MSA 5.2321(7), which states:
"A claimant not having a direct contractual relationship with the principal contractor shall not have a right of action upon the payment bond unless (a) he has within 30 days after furnishing the ñrst of such material or performing the ñrst of such labor, served on the principal contractor a written notice, which shall inform the principal of the nature of the materials being furnished or to be furnished, or labor being performed or to be performed and identifying the party contracting for such labor or materials and the site for the performance of such labor or the delivery of such materials, and (b) he has given written notice to the principal contractor and the governmental unit involved within 90 days from the date on which the claimant performed the last of the labor or furnished or supplied the last of the material for which the claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed.” (Emphasis added.)
There existed no direct contractual relationship between Elgin and Square D. Elgin stipulates that it had knowledge that Square D was a subcontractor performing labor and furnishing materials on the public project. A stipulation signed and dated on August 8, 1980, between Elgin and Square D, sets forth that the former had actual knowledge of the materials furnished or to be furnished, of the labor performed or to be performed, and the site of such labor and materials used. On appeal, Elgin claims that the stipulation only acknowledges Square D’s presence on the site and not the specific material and labor furnished. A plain reading of the stipulation does not bear out this contention.
The multifaceted argument that the public bond statute should be liberally construed has been considered in Charles W Anderson Co v Argonaut Ins Co, 62 Mich App 650; 233 NW2d 691 (1975), lv den 395 Mich 815 (1975) (Brennan, J., dissenting), and John A Hall Construction Co v Boone & Darr, Inc, 102 Mich App 786; 302 NW2d 850 (1981). The Anderson and Hall Courts concluded that strict compliance with the notice requirements was necessary.
Plaintiff argues that by analogy to the Michigan mechanics’ lien act, MCL 570.1 et seq.; MSA 26.281 et seq., and the federal projects bonding act, 40 USC 270(a) et seq., both of which are liberally construed, the public bond statute at issue should also be liberally construed. The mechanics’ lien act specifically states it is to be liberally construed. MCL 570.27; MSA 26.307.
The analogy to the mechanics’ lien act is unpersuasive because of the difference in the applicable areas of the law involved. Mechanics’ liens have been statutorily provided since 1827 and furnished protection for large and small businessmen against sophisticated and unsophisticated customers. As a result of the nature of the transactions, often very unbusinesslike, the act must be liberally construed. Municipal law, on the other hand, is highly regulated by nature and governed by contracts and statutes which precisely define the rights and remedies of the parties. Liberal construction, therefore, is unnecessary as the parties need only follow the specific step-by-step procedures enacted to protect their interests.
The federal public bond act has been liberally construed by the federal courts since well before the 1973 amendment of the Michigan public bond statute. American Surety Co v Lawrenceville Cement Co, 110 F 717, 719 (D Me, 1901). The Michigan Legislature was aware, or should have been, of the liberal interpretation given the federal act, but chose not to specify that the state act be liberally construed.
We conclude that the rationale of Anderson and Hall is controlling and, therefore, the trial court did not err in concluding that the law of this state requires strict construction of the public bond act.
Plaintiff also raises a constitutional issue that the public bond statute violates due process and equal protection. In Shavers v Attorney General, 402 Mich 554, 612-613; 267 NW2d 72 (1978), the Court stated:
" 'The test to determine whether legislation enacted pursuant to the police power comports with due process is whether the legislation bears a reasonable relation to a permissible legislative objective. See Michigan Canners v Agricultural Bd, 397 Mich 337, 343-344; 245 NW2d 1 (1976).
" 'The test to determine whether a statute enacted pursuant to the police power comports with equal protection is, essentially, the same. As the United States Supreme Court declared in United States Dep’t of Agriculture v Moreno, 413 US 528, 533; 93 S Ct 2821; 37 L Ed 2d 782 (1973):
"' "Under traditional equal protection analysis, a legislative classification must be sustained, if the classification itself is rationally related to a legitimate governmental interest.” ’ ”
This Court reviews plaintiffs claim with the above principles in mind, as well as the presumption of constitutionality that the statute enjoys. O'Brien v Hazelet & Erdal, 410 Mich 1, 17; 299 NW2d 336 (1980). The notice provision bears a reasonable relation to the legislative objective of establishing an orderly and systematic presentment of claims. We conclude that the statute is constitutional.
Affirmed.
No costs, a statutory interpretation being involved. | [
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On Remand
Before: Allen, P.J., and D. C. Riley and R. R. Ferguson, JJ.
R. R. Ferguson, J.
Plaintiffs instituted a medical malpractice action against defendants, Drs. Daraban and Vortriede, the surgeons who operated on plaintiff Dorothy Cooper while she was in Garden City Osteopathic Hospital, and against the anesthesiologist and the hospital. Plaintiffs and the anesthesiologist reached an out-of-court settlement and he was dismissed from the action prior to trial. Following trial, the jury returned a verdict of no cause of action in favor of the defendant surgeons and the hospital.
Plaintiffs filed a motion for new trial under GCR 1963, 527.1(2), alleging that the hospital was guilty of misconduct for sending three nurses out of town during the trial. Plaintiffs contended that the testimony of those nurses was material to their claim of improper postoperative care. The trial court ultimately denied the motion and plaintiffs appealed.
This Court considered separately the claims as to the hospital and the surgeons. As to the hospital, we remanded the case for an evidentiary hearing to determine whether the hospital was guilty of misconduct. If the lower court found that the nurses were ordered on vacation, plaintiffs’ motion based on the hospital’s misconduct was to be granted. In addition, plaintiffs were allowed to depose the nurses as to their postoperative care. Plaintiffs could then prepare a delayed motion for new trial based on newly discovered evidence. Cooper v Garden City Osteopathic Hospital, 98 Mich App 362; 296 NW2d 259 (1980), lv den 411 Mich 962 (1981) (hereinafter referred to as Cooper).
As to the surgeons, this Court granted their motion to affirm determining that the questions raised did not affect their liability. On December 5, .1980, however, the Supreme Court reversed this Court’s order granting their motion and remanded the case for plenary consideration. Cooper v Garden City Osteopathic Hospital, 410 Mich 863 (1980). A further discussion of the facts may be found in this Court’s opinion in Cooper, supra. We note that plaintiff Dorothy Cooper expired during the pendency of this appeal.
A new trial may be granted to all or any of the parties whenever their substantial rights are materially affected as the result of, inter alia, misconduct of the prevailing party. GCR 1963, 527.1(2); Cooper, supra, 366. Plaintiffs contend that the defendant surgeons remained liable for Mrs. Cooper’s care during the postoperative period. Thus, they conclude that any misconduct on the hospital’s part in sending the nurses on vacation could affect the surgeons’ liability. Upon a review of the record, we are not persuaded that, as to the surgeons, the hospital’s alleged misconduct materially affected plaintiffs’ substantial rights.
Plaintiffs did not allege in their complaint that the surgeons were guilty of malpractice for their postoperative treatment of Mrs. Cooper. Their allegations against defendants Dar aban and Vortriede concerned acts which occurred during the course of the surgical procedure itself. They also did not allege that the defendant surgeons were responsible for the postsurgical treatment rendered by others.
During its instructions to the jury, the trial court read the theories of the parties. In their theory, plaintiffs again contended that the surgeons were liable for malpractice for acts committed during the surgical procedure itself. In particular, plaintiffs alleged that defendant Daraban, the assistant surgeon, acted negligently in that he left the operating room during the course of the surgery and that defendant Vortriede, the surgeon, acted negligently in that he continued the operation despite indications that Mrs. Cooper was suf fering from insufficient oxygenation. The only claim of malpractice concerning Mrs. Cooper’s postoperative care was directed against the hospital. In particular, plaintiffs claimed that a doctor assigned by the hospital to insure that sufficient oxygen was forced into Mrs. Cooper’s system to prevent further brain damage failed to do so. This doctor was not named as a defendant in the case and plaintiffs proceeded against the hospital on the basis that the doctor was its apparent agent. Plaintiffs did not contend that the doctor was acting on behalf of Daraban and Vortriede.
Although plaintiffs argue on appeal that the surgeons remained legally ^responsible for Mrs. Cooper’s postoperative care, they failed to allege the same as a theory of recovery, and the jury was not instructed to consider it as a basis of the surgeons’ liability. They may not now argue that theory before this Court. Ford v Howard, 59 Mich App 548, 551; 229 NW2d 841 (1975).
The jury determined that the defendant surgeons were not guilty of misconduct for their acts during the surgical procedure. The testimony of the three missing witnesses would have pertained to Mrs. Cooper’s postsurgical treatment only. Thus, plaintiffs’ rights with respect to the surgeons were not materially affected by the alleged misconduct of the hospital. This Court’s opinion in Cooper, supra, is not applicable to the instant appeal.
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Per Curiam.
Defendant appeals from an order entered July 21, 1981, denying his motions to set aside a default judgment of divorce and to decline jurisdiction on matters involving custody of his two minor children.
The essential facts are as follows. The parties were married on April 24, 1971, in California. While residing there they had two children, Dennis and Craig. In March, 1977, the family left California to reside in West Virginia for three months. Thereafter, they went to North Carolina for a little over a year. At this time, defendant and his son Dennis returned to California while plaintiff and Craig moved to Michigan. In December, 1978, the two children exchanged positions.
On April 16, 1979, plaintiff filed for divorce after residing in this state for approximately eight months. At that time, Dennis was in Michigan and had been in the state four to five months. Craig was in California but had been in Michigan previously for four to five months.
On April 17, 1979, an ex parte order was entered awarding temporary custody of Dennis to plaintiff. In July, 1979, Craig came back to Michigan. An amended ex parte order was entered in August, 1979, awarding temporary custody of both children to plaintiff.
In December, 1979, a default judgment of divorce was entered against defendant and plaintiff was awarded custody of the children. One month earlier, defendant had filed a petition for divorce in California. In July, 1980, a California interlocutory order was entered awarding defendant custody of both children. In June, 1980, defendant filed a motion to set aside the judgment of the Michigan divorce and to decline jurisdiction on the custody issue. It is from an order denying this motion that he appeals.
The first issue raised herein is whether the order from which defendant appeals is a final order. Plaintiff argues that since the circuit court has continuing jurisdiction over custody matters and can offer substantive relief by changing custody notwithstanding the previous order, the order is not final. If the court subscribed to plaintiff’s argument, then no order granting custody would be final and appealable to this Court. Said order is final.
The next issue is whether the Michigan court had subject matter jurisdiction to grant the divorce. Defendant argues plaintiff was required to meet the one-year residency requirement contained in MCL 552.9e; MSA 25.89(5) because, according to defendant, the cause for divorce occurred in North Carolina. MCL 552.9e; MSA 25.89(5) provides:
"Sec. 9e. Whenever the cause for divorce charged in the bill or petition has occurred out of this state, no decree of divorce shall be granted unless the complainant or defendant shall have resided in this state 1 year immediately preceding the filing of the bill of complaint for the divorce.”
It is undisputed that plaintiff had resided in Michigan only eight months prior to filing for divorce. Plaintiff contends, however, that by enacting the no-fault divorce act in 1971, MCL 552.6; MSA 25.86, the Legislature implicitly repealed the one-year residency requirement found in MCL 552.9e; MSA 25.89(5). Plaintiff claims the no-fault act makes the place where the cause for divorce occurred speculative and difficult to determine so as to make MCL 552.9e; MSA 25.89(5) meaningless. We agree.
While repeals by implication are not favored or presumed, Gogebic County Clerk v Gogebic County Bd of Comm’rs, 102 Mich App 251; 301 NW2d 491 (1980), such repeals will be found to have occurred upon a clear showing of legislative intent. Ziehm v State Farm Mutual Automobile Ins Co, 88 Mich App 576; 278 NW2d 678 (1979).
Plaintiff correctly contends that a marital breakdown may develop over a long period of time. The time when the cause of action occurs is difficult to ascertain. In the present case, the parties left North Carolina in August, 1978. Plaintiff came to Michigan, where she remained, while defendant went to California. This action was filed the following April. While an act of separation may be indicative of breakdown, plaintiff correctly points out that breakdown is a state of mind. An attempt to establish precisely when the marriage irretrievably broke down would only lead to an evidentiary hearing at which plaintiff would presumably testify that she was still hoping to put the marriage back together and defendant would testify that the marriage broke down in North Carolina.
We find it hard to believe that the Legislature intended the trial court to elicit such testimony in order to determine the location of the marital breakdown for jurisdictional purposes. In enacting the no-fault statute, the Legislature clearly did not intend that the trial court inquire into the particulars leading to an irreconcilable breakdown.
We therefore hold that MCL 552.9e; MSA 25.89(5) was implicitly repealed by the enactment of the no-fault act and that the trial court had subject matter jurisdiction to grant the divorce. In further support of our holding note that the Legislature amended MCL 552.9; MSA 25.89 in 1974, subsequent to the no-fault act. While the Legislature did not explicitly repeal MCL 552.9e; MSA 25.89(5), Judge Gilmore has commented as follows:
"Note that in both MCLA 552.9e and 552.9f, the residence requirement is one year. However the amendment of MCLA 552.9 (1974 PA 344, effective December 21, 1974) changed the requirement to 180 days. The later statute will control.” 2 Gilmore, Michigan Civil Procedure Before Trial, § 16.9, p 662a.
Defendant’s final issue is whether the Michigan court had jurisdiction to decide custody of the minor children. Michigan has adopted the Uniform Child Custody Jurisdiction Act. MCL 600.651 et seq.; MSA 27A.651 et seq. The pertinent portion of said statute necessary to our resolution of this issue reads as follows:
"Sec. 653. (1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree or judgment if any of the following exist:
"(a) This state is the home state of the child at the time of commencement of the proceeding or had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this state because of removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state.
"(b) It is in the best interest of the child that a court of this state assume jurisdiction because the child and his parents, or the child and at least 1 contestant, have a significant connection with this state and there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.
"(c) The child is physically present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent.
"(d) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivisions (a), (b), or (c) or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child and it is in the best interest of the child that this court assume jurisdiction.
"(2) Except under subsection (l)(c) and (d), the physical presence in this state of the child or of the child and 1 of the contestants is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
"(3) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.” MCL 600.653; MSA 27A.653.
While the trial judge’s statements concerning the court’s jurisdiction over custody indicate a failure to fully understand and apply the UCCJA, his holding can nevertheless be upheld under subsection (l)(b) set forth above providing for the significant interest test. Our review of the facts indicates that the ties between the parents and children and the states of Michigan and California are equal. Before the action was filed, Dennis had been in Michigan four to five months and previously had been in California. Craig had also been in both states prior to the filing of the action. Apparently, plaintiff’s relatives live in Michigan. Defendant’s relatives and friends live in California. The record does not indicate the extent or location of school or medical records, if any, for either child. Nor was evidence presented concerning witnesses who would testify as to the parents’ relationship with each child and as to the other relevant factors in a custody determination. When the courts of more than one state have jurisdiction, priority in time determines which court will proceed with the action. McDonald v McDonald, 74 Mich App 119; 253 NW2d 678 (1977). Unquestionably Michigan had priority and under subsection (b) could make a custody determination.
Additionally, since the children and parties did not have significant connection with any state, assumption of jurisdiction by Michigan under § 653(d) would also be proper herein.
Defendant suggests that even if the Michigan court does have jurisdiction to determine custody, jurisdiction should have been declined on forum non conveniens grounds as provided for by MCL 600.657(1); MSA 27A.657(1) at the time of the commencement of the proceedings in April, 1979, and at the July 1, 1981, hearing on the motion to decline jurisdiction. The question of whether to decline jurisdiction under §657 is discretionary with the court and will not be reversed absent an abuse of discretion. Lustig v Lustig, 99 Mich App 716; 299 NW2d 375 (1980). Our review of the record leads us to conclude that the trial judge did not abuse his discretion under the criteria enumerated in §657. Moreover, the parties would be equally inconvenienced regardless of which forum was selected to resolve the dispute.
Aifirmed. No costs, interpretation of a statute being involved. | [
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Per Curiam.
Petitioner appeals as of right from the Michigan Tax Tribunal’s April 1, 1982, order granting, sua sponte, summary judgment in favor of the Department of Treasury, affirming the department’s denial of petitioner’s claim for a single business tax refund.
This Case involves interpretation of the Single Business Tax Act (SBTA), MCL 208.1 et seq.; MSA 7.558(1) et seq. The facts are not in dispute. Petitioner is a corporation doing business in Michigan with its principal office in San Francisco, California. The central issue focuses on petitioner’s 1976 single business tax liability. In its 1976 return, petitioner calculated its tax liability to be $911,-091. Because it had made quarterly estimated tax payments totaling $1,000,000, petitioner requested a refund of $88,909. The department denied petitioner’s refund claim and, on May 15, 1978, issued a notice of intent to assess an additional $3,309.42.
Following an informal hearing on petitioner’s disputed refund claim and the department’s intended deficiency assessment, on August 7, 1979, the hearings referee issued his report denying the refund and recommending that the assessment be finalized. Petitioner applied to the Michigan Tax Tribunal for review of the department’s assess ment and moved for summary judgment; Tax Tribunal member Roy L. Spencer denied petitioner’s motion and granted, sua sponte, summary judgment in favor of the department.
The SBTA provides for a specific tax of 2.55% on the "adjusted tax base” of every person with business activity within Michigan that is allocated or apportioned to this state. MCL 208.31; MSA 7.558(31). The provisions of the SBTA pertinent to this appeal read as follows for tax year 1976:
"Sec. 2. (1) For the purposes of this act, the words and phrases defined in sections 3 to 10 shall have the meanings respectively ascribed to them in those sections.” MCL 208.2, subd (1); MSA 7.558(2), subd (1).
"Sec. 4. * * * (3) 'Compensation’ means all wages, salaries, fees, bonuses, commissions, or other payments made in the taxable year on behalf of or for the benefit of employees, officers, or directors of the taxpayers and subject to or specifically exempt from withholding under section 3401 of the internal revenue code. * * *” MCL 208.4, subd (3); MSA 7.558(4), subd (3).
"Sec. 31. * * * (5) In lieu of the adjustment provided in subsection (2) or (3) a person may elect to reduce the adjusted tax base by the percentage that the compensation divided by the total tax base exceeds 65%. The deduction shall not exceed 35% of the adjusted tax base.” MCL 208.31, subd (5); MSA 7.558(31), subd (5).
"Sec. 35. (1) There shall be exempt from the tax imposed by this act: * * * (f) Fifty percent of compensation directly related to the completion of construction contracts for the planning, design, construction, alteration, repair, or improvement of real property, for which a bid was submitted or a contract signed on or before September 1, 1975. * * *” MCL 208.35, subd (l)(f); MSA 7.558(35), subd (l)(f). (Emphasis added.)
Petitioner computed its 1976 annual return on the alternate tax computation basis provided by SBTA § 31(5), using all of its "compensation”, in- elusive of that exempt compensation specified in § 35(l)(f), as the numerator of the compensation/ total tax base fraction set forth in § 31(5). Petitioner argues on appeal, as it did before the Tax Tribunal, that, by virtue of the mandate in § 2(1), the term "compensation” used in § 31(5) is as defined in § 4(3). Had the Legislature intended that the numerator of the § 31(5) fraction be "nonexempt compensation”, petitioner argues, it could have expressly so provided.
The department has taken the position that, in computing the § 31(5) deduction, the numerator in the compensation/total tax base fraction means compensation less exempt compensation. Accordingly, in recomputing petitioner’s tax liability, the department subtracted from the compensation numerator in the § 31(5) fraction that amount of the exemption allowable to petitioner under § 35(l)(f). The department contends on appeal that, having excluded a specific amount of compensation from the scope of taxation pursuant to § 35(l)(f), the Legislature could not possibly have intended to permit inclusion of that excluded compensation for purposes of obtaining further tax relief under § 31(5).
Consistent with the department’s position is the opinion of the Tax Tribunal, in which it stated:
"It appears that respondent did not err in its recomputation of petitioner’s tax liability. To the extent that specified compensation is exempt from tax, per subsection 35(l)(f), it is only reasonable to conclude that such exempt compensation should be excluded, .for all purposes, in arriving at the adjusted tax base subject to tax. Thus, petitioner and respondent having apparently agreed that the exempt compensation should be excluded in arriving at total tax base * * *, said exempt compensation must also be excluded from the total (taxable) compensation which is the numerator of the subsection 31(5) fraction. To hold as petitioner would urge would to allow petitioner a 'double dip’, that is, an exemption and a deduction for the same item of 'exempt compensation’. In giving a reasonable application to the subject provisions, the 'compensation’ specified in subsections 4(3) and 31(5) must be deemed to include those items of compensation which are not within the subsection 35(l)(f) exemption.”
In construing a statute, a court must first consider the specific language of the statute itself in order to ascertain and declare the intention of the Legislature. Kalamazoo City Education Ass’n v Kalamazoo Public Schools, 406 Mich 579, 603; 281 NW2d 454 (1979). As petitioner points out, in doubtful cases, revenue statutes must be construed against the taxing authority. Ecorse Screw Machine Products Co v Corp & Securities Comm, 378 Mich 415, 418; 145 NW2d 46 (1966).
Also well-established, however, is the rule that exemption statutes are to be strictly construed in favor of the taxing unit. Dick & Don’s Greenhouse, Inc v Comstock Twp, 112 Mich App 294, 299; 315 NW2d 573 (1982). Moreover, where the Legislature has properly delegated authority to an administrative agency to carry out the mandates of a statute, the courts should give deference to the agency’s interpretation of the provision, although they are not bound thereby. Judges of 74th Judicial Dist v Bay County, 385 Mich 710, 727-729; 190 NW2d 219 (1971); Mutual Life Ins Co of New York v Ins Bureau, 121 Mich App 386; 328 NW2d 638 (1982).
Applying these rules, we find the reasoning of the Tax Tribunal persuasive and agree with its conclusion that the Legislature could not have intended the taxpayer a " 'double dip’, i.e., an exemption and a deduction for the same item of 'exempt compensation’.” Accordingly, the tribunal did not err in entering summary judgment in favor of respondent.
We decline to address the second issue raised by the department on appeal; the correct method of computing the denominator in SBTA § 31(5) was neither raised by the parties below nor addressed by the Tax Tribunal and is not properly before this Court.
Petitioner also contends the Tax Tribunal erred by refusing to enter a consent order, stipulated to by both parties, which would have prevented disclosure by the Tax Tribunal of petitioner’s 1976 single business tax return and various documents discussing petitioner’s tax and financial information contained in the Tax Tribunal’s court file. The Tax Tribunal determined that the information in the file was subject to disclosure under the Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq., and held that the tribunal must make all writings filed with the tribunal available to the public.
It is clear that the Tax Tribunal is subject to the Freedom of Information Act. MCL 205.746; MSA 7.650(46). Section 13(l)(d) of the act, however, exempts from disclosure "[rjecords or information specifically described and exempted from disclosure by statute”. MCL 15.243, subd (l)(d); MSA 4.1801(13), subd (l)(d). Section 28(l)(f), of the Department of Revenue Act, MCL 205.28, subd (l)(f); MSA 7.657(28), subd (l)(f), prohibits anyone connected with the Department of Revenue from divulging "any facts or information obtained in connection with the administration of a tax”. Section 13(l)(a) of the Freedom of Information Act, MCL 15.243, subd (l)(a); MSA 4.1801(13), subd (l)(a), permits a public body to exempt from disclosure information "of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy”.
Much of the information in the court file is arguably exempt under either or both of those provisions. See International Business Machines Corp v Dep’t of Treasury, 71 Mich App 526, 540; 248 NW2d 605 (1976). We believe the tribunal abused its discretion in refusing to enter the consent order, and in declaring that the tribunal must make all writings filed with it available to the public without regard to their confidential nature.
We remand for entry of the consent order. In the event a specific request is made by the public for information in the file, the tribunal should then examine in camera the materials requested and delete such identifying details as are necessary to prevent an unwarranted invasion of petitioner’s privacy. "The task is to separate the kernel of agency statements of law and policy from what would otherwise be confidential or identifying details.” International Business Machines, Inc, supra, p 540.
Affirmed in part, reversed in part, and remanded.
Subsequent to the tribunal’s decision in this case, § 31 was amended by 1982 PA 414, which added the following sentence to subsection 5:
"For the 1976 tax year and each tax year thereafter, for purposes of computing the deduction allowed by this subsection, as effective for the respective tax year compensation shall not include amounts of compensation exempt from tax under section 35(l)(e) or (f).”
In a supplemental brief, petitioner attacks the constitutionality and retroactive application of the amendment. As application of the amendment in the instant case produces the same result we have reached on the basis of statutory interpretation of § 31(5) prior to its amendment, we decline to address the application or validity of 1982 PA 414 to this case. | [
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Per Curiam.
Defendant appeals by leave granted from the trial court’s denial of its motion for summary judgment pursuant to GCR 1963, 117.2(3), now MCR 2.116(0(10), on plaintiff’s claim for no-fault benefits. We reverse.
In the course of plaintiff’s employment as a driver of a refuse truck, he loaded large free-standing metal waste containers onto his truck by attaching a metal cable to the waste container and engaging a hydraulic mechanism on his truck to winch the container onto the bed of the vehicle. In order to operate the hydraulic mechanism, it was necessary to keep the engine of the truck running and to use levers located inside the cab to maneuver the container. _
On April 21, 1981, the date of plaintiffs injury, plaintiff hooked the cable to the waste container, but prior to engaging the hydraulic mechanism he climbed onto the adjacent loading dock to throw wooden pallets into the waste container. While throwing a pallet into the waste container, and standing with one foot on the loading dock and one foot on the waste container, plaintiff injured his back.
Plaintiff filed this no-fault action seeking benefits for his back injury sustained while he was engaged in the use or operation of the refuse truck. Defendant brought a motion for summary judgment alleging that plaintiffs injury did not arise out of the use of a motor vehicle as a motor vehicle, MCL 500.3105(1); MSA 24.13105(1), and that plaintiffs injury did not fit within any of the exceptions contained in the parked vehicle provision of the no-fault act. MCL 500.3106; MSA 24.13106. The trial court denied defendant’s motion, holding that the threshold requirement of MCL 500.3105(1); MSA 24.13105(1) was met, and that both subsections (b) and (c) of the parked vehicle provision, MCL 500.3106; MSA 24.13106, applied to provide no-fault benefits to plaintiff. The trial court also certified its denial of defendant’s motion for summary judgment to this Court, and leave to appeal was granted by this Court.
Turning first to the parked vehicle provision, MCL 500.3106; MSA 24.13106, we find that plaintiff does not fall within subsection (b) or (c) of this provision. At the time of plaintiffs injury, the parked vehicle provision provided:
“Accidental bodily injury does not arise out of the ownership, operation, maintenance or use of a parked vehicle as a motor vehicle unless any of the following occur:
"(b) The injury was a direct result of physical contact with the equipment permanently mounted on the vehicle, while the equipment was being operated or used or property being lifted onto or lowered from the vehicle in the loading or unloading process.
"(c) The injury was sustained by a person while occupying, entering into or alighting from the vehicle.”
With respect to subsection (b), it is readily apparent that plaintiffs injury was not the direct result of his physical contact with equipment permanently mounted on the vehicle, but occurred during the loading of containers which were themselves to be subsequently loaded onto his vehicle. Furthermore, even if his loading of the containers to be loaded onto the vehicle was considered part of the loading or unloading process, and even though plaintiff was in contact with the property, i.e., waste container, to be loaded, his injury did not directly result from physical contact with the property, i.e., the waste container, being lifted onto or lowered from his vehicle. Arnold v Auto-Owners Ins Co, 84 Mich App 75, 80; 269 NW2d 311 (1978), lv den 405 Mich 804 (1979). Thus plaintiff does not meet subsection (b) of the parked vehicle provision.
With respect to subsection (c), plaintiff’s injury did not occur while he was occupying his vehicle. Although "occupancy” has been liberally construed by our Courts, see Hathcox v Liberty Mutual Ins Co, 90 Mich App 511, 515-517; 282 NW2d 374 (1979), we find that on the facts of this case, plaintiff was not "occupying” his vehicle. See also Royal Globe Ins Co v Frankenmuth Mutual Ins Co, 419 Mich 565; 357 NW2d 652 (1984). Plaintiff did not physically occupy the vehicle immediately prior to the accident, contrast Hathcox, supra, nor did he have physical contact with his vehicle at the time, contrast Sherman v Michigan Mutual Ins Co, 124 Mich App 700, 703; 335 NW2d 232 (1983) (plaintiff had one foot on loading dock and one foot on the vehicle trailer). Instead, plaintiff was in contact with property (waste container) to be loaded onto his vehicle.
Since plaintiff does not meet the parked vehicle exceptions of the no-fault act, the trial court erred in denying defendant’s motion for summary judgment. Because we find that plaintiff has not met the parked vehicle exceptions of the no-fault act, we decline to address defendant’s additional contention that plaintiff did not meet the threshold requirement of MCL 500.3106; MSA 24.13106, i.e., that plaintiff’s injury arose out of the operation or use of a motor vehicle as a motor vehicle. We reverse and remand for entry of summary judgment for defendant.
Reversed amd remanded.
If the accident had occurred after December 31, 1981, MCL 500.3106(2); MSA 24.13106(2), added by 1981 PA 109, would have barred recovery under these circumstances.
Plaintiff does not contend that he was entering into or alighting from the vehicle. | [
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