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Butzel, J.
Plaintiff, wbo had two daughters by a previous marriage, one 2 and the other 9 years of age, engaged defendant as housekeeper in August, 1937. After a few days she left because of difficulty with the older child. Plaintiff -persuaded her to return and she remained in his service over a year, working most of the time without Compensation as he was unemployed. He married her on November 26, 1938. At that time he owned an old car and household furniture of comparatively little value, and he owed a fair sized debt, Both parties worked, very hard and were frugal. Notwithstanding plaintiff’s criticism,' defendant appears to have been a good, housekeeper. The parties occupied a large house and augmented their income by taking in roomers. Plaintiff worked in an automobile factory and also started an insurance business in which • defendant helped during plaintiff’s absence. At the time of the iharriage, defendant owned a house and lot, which she subsequently sold for $4,000. The parties had purchased in their joint names a house and lot for $8,500. Plaintiff also was buying on contract for himself and daughters another house and lot. On April 22, 1944, the present divorce suit was begun, a previous one having been discontinued after a reconciliation was effected. In view of our disposition of the ease, it becomes unnecessary to discuss the division of the property decreed by the trial court,
The parties, particularly in more recent years, quarrelled constantly. Plaintiff was parsimonious and cruel towards defendant. At times he locked her out of the house and refused to let her eat at home. On one such occasion she responded by throwing a brick at the window. Some of the difficulty arose because of the problem of supervising the activities of the older daughter who was growing into womanhood. Defendant professes a high regard for the girl and claims that if she had plaintiff’s cooperation she could get along with her. Defendant is genuinely devoted to the younger daughter and claims that her affection for the child is paramount to all other considerations in the case. Plaintiff claims that defendant was untidy and neglected the home and the children whom she sometimes referred to as “brats.” He also makes a serious but unjust reflection on her morals. She did write some nonsense in her diary which might be ascribed to wishful thinking or escape from a drab life and an unfriendly husband. While some of her actions may have been foolish and indiscreet, she was guilty of no serious misconduct. The trial judge apparently so held. The record sustains him.
One transaction, however, which the trial judge discussed, cannot be overlooked. Defendant wife had reason to conclude that the older child had been violated and on confronting her, the girl stated that “C” was the guilty party. Defendant thereupon gave “C” the choice of paying her $5,000 or of having a criminal complaint made against him. “C” paid the $5,000 which was used toward the payment of the $8,500 for property purchased in the joint names of both parties. Defendant represented to plaintiff at the time that she had inherited the money. Subsequently the older child completely exculpated “C” and placed the blame'on one “B”. Some time later the child exculpated “B”. When, however, she charged “B” with the crime, defendant consulted the prosecuting attorney who advised her that she had committed a felony in extorting the $5,000 from “C”. She thereupon told plaintiff of what she had done. He refused to mortgage the joint property to return the $5,000 to “C”. Defendant paid “C” $3,000 from the amount she had left from the $4,000 received by her from the sale of her own property. The balance of $2,000 as far as the record shows has not been repaid to “C”, and the parties seem to ignore this debt in their claim to the division of their property. Defendant’s conduct toward plaintiff, though often provoked by him, was far from exemplary, and plaintiff also had cause to complain. It would serve no useful purpose to set out further facts. Each of the parties was guilty of misconduct towards the other.
Plaintiff filed a bill of divorce. Defendant answered and filed a cross bill. The trial judge in granting the defendant a divorce on her cross bill stated in his opinion that:
“If the court were to follow his own feelings in the matter in so far as the relief asked for by either party a decree would probably be denied. 'On the other hand, while there is no recognition of relief on the ground of public policy, nevertheless I am forced to the opinion that such is the proper thing to do.”,
We do not believe that such was the proper thing to do. The parties are each to blame. Possibly when they realize that they are not entitled to a divorce, they will effect a reconciliation, exercise mutual forbearance, and readjust their lives and conduct along happier lines. In any event, where parties are both to blame and do not come into court with clean hands, a divorce will not be granted. Hambley v. Hambley, 230 Mich. 534; Cook v. Cook, 245 Mich. 339; Terrell v. Terrell, 317 Mich. 49.
The decree will be set aside and one entered in this Court dismissing the bill and the cross bill. No costs to either party.
Carr, C. J., and Bushnell, Sharpe, Boyles, Reid, North, arid Dethmers, JJ., concurred. | [
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Butzel, J.
Plaintiffs are partners in the restaurant business in the city of Grand Rapids. In Octo ber, 1945, plaintiff Norma Werner acquired certain property in that city upon which was located an old house and a streetcar diner. Plaintiffs desired to convert the premises into a cafeteria and, accordingly, they entered into negotiations for the necessary repairs and alterations with the defendant, a contractor and a personal friend of plaintiff Werner. On November 9, 1945, a written contract was signed by defendant and Norma Werner wherein the defendant agreed to perform the necessary Work and supply the required materials for a “total cash price” of $2,350. The contract was prepared on a form bearing the letterhead of defendant and was written in defendant’s own hand. The blank lines of a provision reading, “To be paid by you according to the following terms-,” were not filled in, nor was any other provision made therein as to the time or terms of payment. It is undisputed that certain additional items were requested by plaintiffs after tbe signing of this contract as the result of which the parties agreed on November 16, 1945, to increase the total contract price by $150.
Defendant undertook to do the necessary work and from time to time, as the work progressed, requested advances of money from plaintiffs. Prom November 13, 1945, to December 26, 1945, six payments were made totaling $2,457. Subsequently, defendant informed plaintiffs that he would be unable to complete the project at the contract price. After some discussion, a supplemental agreement was entered into on December 29, 1945, the purpose of which was to include in one overall sum the balance remaining on the old contract plus the,price of certain additional items requested by plaintiffs since the previous readjustment. At that time plaintiffs paid defendant the sum of $259. The supplemental agreement, which was drawn by plaintiff Werner on the back of a menu card and signed by defendant, contained the following:
“Disregard money balance on old contract
Total finish (sic) job, everything included, the above mentioned and according to old contract is $700 Seven Hundred Dollars.
Balance $450.
Signed,
12/29/1945 Ray Quinn. ’ ’
An additional $250 was paid defendant on January 4, 1946, leaving a final balance of $200. On January 10, 1946, defendant requested that plaintiffs advance him the further sum of $200 with which to meet his payroll. Upon plaintiffs’ refusal to advance this sum, defendant walked off the job taking some construction materials with him. On January 11, 1946, plaintiffs obtained a temporary injunction restraining defendant from removing any more materials from the premises. They also filed the bill of complaint in the instant suit seeking to have the temporary injunction made permanent, asking damages for defendant’s failure to complete the job, and further requesting that the court order defendant to pay wages due workingmen employed by him on this project.
Defendant filéd an answer and cross bill, claiming that although the contract was silent as to the time and terms of payment, nevertheless, it was agreed that plaintiffs were to advance the necessary funds to carry on the job; that he was ready and willing to complete the work, but that plaintiffs breached the contract by refusing to' advance the sum of money requested of them on January 10, 1946; and that plaintiffs further prevented him from completing- the job by locking him out of the premises. He admitted that he owed wages to his carpenters for work performed on the project but stated that this had resulted from plaintiffs’ refusal to make payments to him as promised. Pie asked that the injunction be quashed, that he be permitted to obtain possession of his own property on the premises, and that plaintiffs be required to pa'y whatever sum the court should determine w*as due him.
Plaintiffs testified that after the supplemental agreement of December 29, 1945, was entered into, they made no requests of defendant for further changes or alterations. This is denied by the defendant. Plaintiff Pootz testified that it had been necessary to spend more than $600 to prepare the premises for occupancy after defendant abandoned the job. The contractor who had been engaged by plaintiffs to complete the' work testified that in his opinion an additional $240 would be required to finish the job properly. On cross-examination defendant made the following statement:
“It is possible that if I had finished the job it would have taken more than $200 tp do it. After I had used this $200 I contemplated getting more money from her to finish the job. I don’t know what I would have done if she hadn’t paid me more money than was agreed to at the time I entered into this second contract of $700. I didn’t get that far. I went off this job because she did not do as she had agreed to — to furnish money for everything that was needed.”
Defendant further testified that he had since paid off all of the carpenters and that there were no lumber bills outstanding.
The trial court found that the parties, by their conduct, had placed their own interpretation upon the agreement and that 'the evidence established that it was agreed before the work was started that the necessary funds would be furnished by plaintiffs to carry on the job. The court held that plaintiffs had breached their agreement with the defendant by failing to advance the sum of $200, requested by defendant on January 10, 1946; that defendant was therefore justified in quitting the job, and that by so doing he did not lose his right to recover under the agreement with plaintiffs, nor was he liable for the added cost of completing the job. The court further found that at plaintiffs’ request defendant had installed certain glass in the dining car which was not included in the agreement and which had cost defendant $75. A decree was entered dismissing plaintiffs’ bill of complaint and awarding defendant the sum of $279 (the court apparently intended $275). The decree directed plaintiffs to surrender to defendant any and all items of defendant’s personal property in their possession. Plaintiffs appeal from that decree.
It is defendant’s contention on appeal that this Court is without jurisdiction in the case because appellants did not procure and file a certificate of the court stenographer and, further, that there was no extension of time within 20 days following notice of entry of the decree. The court rule provides that:
‘ ‘ The party desiring an extension shall produce a transcript of the testimony necessary to the preparation of a bill of exceptions or a settled case, or a certificate from the stenographer of the trial court stating that appellant has ordered a transcript of the testimony necessary for the preparation of a bill of exceptions or settled case, that payment therefor has been made or secured, and that the same will be furnished as soon as possible by said stenographer.” Court Eule No. 66, § 2 (1945).
In Andres v. Washtenaw Circuit Judge, 287 Mich. 412, this Court held that appellants had not lost their rights by neglecting to file a certificate of the court stenographer, since producing it to the court fulfilled the requirements of the rule. The calendar entries in the instant case indicate that the decree of the lower court was entered on June 4, 1946, that claim of appeal, notice and proof of service were filed on June 22, 1946, and that the time for settling the record was extended by stipulation and order entered on July 10, 1946. Counsel by written stipulation, and without procuring the stenographer’s certificate, may' extend the time for settling a bill of .exceptions not exceeding the time limited by statute. Brevoort v. Wayne Circuit Judge, 203 Mich. 388; Reynick v. Saginaw Circuit Judge, 210 Mich. 563. Court Rule No. 66, § 2 (1945), also provides :
“The time noticed for such settlement shall be within 20 days after the date of filing the claim of appeal when the appeal is of right, * * * or within such further time, not exceeding 1 year after entry of judgment, as may be ordered by the trial judge, upon motion filed within said 20 days and duly noticed for hearing.” • ■
The ‘1 said 20 days ” is an obvious reference to the “20 days after the date of filing the claim of appeal,” and not, as contended by appellee, 20 days following notice of entry of'the decree. Plaintiffs properly and timely perfected their appeal.
A close reading of the record fails to satisfy us that the parties had agreed before the work was started that all necessary funds would be furnished by plaintiffs to'carry on the project, although it is possible that such may have been the true agreement. To arrive at that determination, however, it is necessary to negate completely the purpose and effect of the two writings, particularly that of De cember 29, 1945, which expressly provided that the newly-arrived-at balance represented the “total finish (sic) job, everything included.” The trial judge found that the parties by their conduct placed their own interpretation upon their agreements, and that they paid very little, if any, attention to the writings. It is noted, however, that in each instance work was performed by defendant before any payments were made. After the agreement of December 29, 1945, was signed, plaintiffs paid two equal instalments of $250. It would appear to us, therefore, that the more reasonable interpretation to be given the supplementary agreement, in view of the conduct of the parties, is that pro rata instalments were contemplated. Defendant testified, as herein-before quoted, that he intended getting more money from plaintiffs to finish the job after the payment of the “final” instalment of $200. This substantiates plaintiffs ’ claims that the value of the work remaining to be performed by defendant when he walked off the job was considerably in excess of $200. If any weight is... to be given the supplemental agreement, this would seem to indicate that defendant was the party in default.
It is evident that the trial judge was persuaded that plaintiffs had made additional demands upon defendant after the latter had signed the memorandum of December 29, 1945. Thus the court allowed as an item of defendant’s damages the sum of $75 for the installation of certain glass in the dining car, which item, so the court found, was not called for by the agreement. The record discloses, however, that the glass had been installed prior to December 29,1945, the date of the supplemental agreement which purported to establish one all-inclusive balance and in which no reference was made to said item. Again, if any weight is to be given the supple mental agreement, the reasonable inference is that the parties regarded the item as merged in the new balance. If defendant actually did additional work at plaintiffs’ request after that date, the proofs of same are not to be found in the record.
Equity jurisdiction was originally sought in this suit to enjoin defendant from removing materials from the construction site; and plaintiffs in their bill of complaint also requested money damages. A temporary injunction was granted; and after a hearing, the bill was dismissed and a decree entered awarding defendant money damages on his cross bill. The decree further ordered plaintiffs to surrender to defendant any and all items of defendant’s personal property in their possession. Defendant testified that this property consisted of some planks, a stepladder and a couple of pairs of carpenters ’ horses. It is not alleged that there is anything unique about any of said items, nor is it shown that their value, obviously a very small amount, is not readily ascertainable. If a proper demand were made and refused, these items or their value could have been recovered in an appropriate action'at law. As in Michigan Bean Co. v. Burrell Engineering & Construction Co., 306 Mich. 420, where the proofs disclosed no grounds for equitable relief, when the bill of complaint is dismissed, there is left “a plain action at law arising from a dispute over a building contract.” In that case, the Court said:
‘ ‘ The decree awarded money damages to plaintiff against Burrell for failure to complete the contract, defective workmanship,, delay in performance, and overpayment. * ' * * In - granting plaintiff a money decree, he (the judge) necessarily was called upon to determine whether the contract was for a fixed amount, as plaintiff contended, or for cost plus a percentage, as claimed by defendant. This, however, was purely a question of fact that arises so frequently in an action at law. It was not a question that called for the exercise of equity jurisdiction.”
A further and quite conclusive reason for dismissing plaintiff’s bill of complaint is that the only ground alleged for equitable relief is for an injunction restraining removal of the building material by defendant; but there is no allegation in the bill of the value of such materials as exceeding $100. Hence it follows that essential jurisdictional facts were not alleged, and the bill for that reason should be dismissed. See 3 Comp. Laws 1929, § 13943 (Stat. Ann. §27.544); Wallace v. Sortor, 52 Mich. 159.
We called to the attention of respective, counsel that this was an ordinary suit at law improperly brought on the equity side of the court. Counsel for plaintiffs conceded that the suit was not one properly in equity, while defendant claimed that the appeal should be dismissed for reasons heretofore stated. In view of the close questions of fact involved herein and the parallel presented to Michigan Bean Co. v. Burrell Engineering & Construction Co., supra, which follows a long line of cases therein cited, we are constrained to hold as we did in that case. Therefore a decree may be entered dismissing the bill and cross bill without prejudice to the rights of either party to transfer the case to the law side of the court by filing a declaration within 30 days after the date of the decree. No costs to either party.
Carr, C. J., and Bushnell, Sharpe, Boyles, Reid, North, and Dethmers, JJ., concurred.
See 3 Comp. Laws 1929, §14313 (Stat. Ann. § 27.1042).—Re-porter. | [
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North, J.
In this divorce case plaintiff was granted leave to appeal in tbe nature of mandamus with accompanying certiorari from an order of the trial court setting aside a pro confesso decree of divorce granted to plaintiff and permitting defendant to file an answer and cross bill. Tbe relief sought on tbis appeal is that this Court order tbe trial court to vacate tbe above-mentioned order. Plaintiff asserts that by reason of Court Rule No. 48, §1 (1945), tbe trial court was without' power to set aside its former decree. Tbe pertinent portion of tbe rule reads:
‘ ‘ Section 1. On proper cause shown, a rehearing of an equitable action may be bad. No application for such rehearing shall be beard unless filed within 2 months from tbe entry of tbe final decree, except where application is made on tbe ground of newly-discovered evidence, in which case the application must be filed within 4 months.”
The decree of divorce was entered August 22, 1945. Defendant’s petition to .have the decree set aside was filed March 7, 1946. Obviously defendant’s petition was filed more than 4 months after entry of the decree; but in construing and applying Court Rule No. 48 (or former rules of like purport) we have repeatedly held either expressly or by plain implication that the rule -should not be strictly applied in cases where the judgment or decree was fraudulently obtained. See John W. Masury & Son v. Lowther, 299 Mich. 516; Geib v. Kent Circuit Judge, 311 Mich. 631. In Naylor v. Washtenaw Circuit Judge, 250 Mich. 698, we said:
‘ ‘A rehearing may not be granted after the lapse of four months from entry of final decree,- in the absence of a showing of fraud,. Union Trust Co. v. Detroit Trust Co., 240 Mich. 646.”
See, also, Central Trust Co. v. Breitenwischer, 259 Mich. 532; Stabley v. Reliable Lumber & Wrecking Corp., 286 Mich. 558. And in Fries v. Wonnacott, 270 Mich. 86, we said:
“In Hughes v. Wayne Circuit Judge, 239 Mich. 110, we held that although the right of the party to move for a rehearing was lost after the prescribed period had expired, this did not mean that the court no longer had power over its own decrees, -and the court might order a rehearing sya sponte.”
To hold otherwise than indicated in the above cited cases would be to defeat rather than to administer justice. In the instant case, the record is replete with a showing of fraud on the part of plaintiff in the conduct of the divorce proceedings, and that showing’ under oath by defendant-is not met by any counter-showing by plaintiff under oath. Plaintiff perpetrated a fraud on the trial court by deliberately leading the court ,to believe that since the alleged date of separation plaintiff and defendant had not cohabited as husband and wife, whereas such cohabitation continued during a large portion of time intervening between commencement ‘of suit and the hearing in court. Plaintiff also suppressed matters which he knew had a material bearing upon the settlement of property rights and thereby deceived and misled the court, and in consequence thereof the trial court should have a right to reconsider such issues to the end of reaching an equitable ..result. And to some extent the record now discloses that plaintiff obtained the decree of divorce through collusion which plaintiff did not disclose at the hearing.
In the instant case it should not be overlooked that the final outcome involves the welfare of an infant daughter of these parties. The fact that plaintiff married another woman about two months after the date of the decree does not in itself bar a rehearing. Czysewski v. Csyzewski, 304 Mich. 402.
The factual background of the instant, case is materially different from Kutiej v. Kutiej, 317 Mich. 269. In the Kutiej Case the sole ground set forth in the petition to set aside the default and vacate the decree was the wife’s financial inability to procure counsel, and the trial court found that claim absolutely false. There was no claim of a fraud having been perpetrated' on the court, such as is disclosed in the instant case.
The order entered by the circuit judge is affirmed, with costs to appellee.
Carr, C. J., and Butzel, Bushnell, Sharpe, Reid, and Dethmers, JJ., concurred with North, J.
Boyles, J. I concur in the result notwithstanding the Gombasy Case, post, 139. | [
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Sharpe, J.
This suit involves the maintenance of a line fence by the respective adjoining owners.
The fence originally built some 36 years ago is now in need of repair. The fence in question runs east and west fqr a distance of 40 rods and north and south for a distance of 40 rods, the' south end of the' fence running north and south connecting with the west end of the fence running east and west forming an “L” shaped line of fence. Defendant Bernice Van Burén is the owner of lands north and east of the fence, while plaintiff is the owner of lands lying south and west of the fence.
It is the claim of plaintiff that he has been the owner of his land for a period of more than 37 years; that at the time he acquired his lands, the land now owned by defendant Bernice Van Burén was owned by one Strimbach; that plaintiff and Strimbach entered into an oral agreement to erect and maintain the east and west fence; that plaintiff built the west one half of said fence while Strimbach built the east half of said fence; that approximately 30 years ago Strimbach sold his lands to one Fray; that plaintiff and Fray entered into an oral agreement to erect and maintain the north and south fence in question; that plaintiff was to maintain the south 20 rods of said fence and Fray was to /maintain the north 20 rods of said fence; that about 14 years 'ago Mrs. Bernice Van Burén became the owner of the property formerly owned by Strimbach; that plaintiff has maintaiiied his portion of the fence to date, but that the other portion of the fence has deteriorated and is in need of repairs; that the land on each side of the fence is used for pasturage; and that plaintiff has never had any agreement with Mrs. Van Burén for the maintenance of any portion of the fence.
The record shows that the other defendants named herein are fence viewers of Sunfield township in Eaton county. In August, 1944, plaintiff called on the township highway commissioner, advised him of the old agreement to keep the fence in repair and requested that the fence viewers act. The fence viewers examined the premises and made a written determination that plaintiff should maintain the 40 rods of fence running north and south; and that Mrs. Van Burén should maintain the 40 rods of fence running east and west. On August 29, 1944, the township board approved the action taken by the fence viewers.
Plaintiff began the present suit, alleging that the fence viewers did not have authority to change or divide the portion of the fence which the original land owners had built and maintained over a period of more than 30 years. The cause came on for trial and the trial court entered a decree affirming the action taken by the fence viewers.
Section 1068, 1 Comp. Laws 1929 (Stat. Ann. § 5.215), reads as follows:
“When any controversy shall arise about the rights of the respective occupants, in partition fences, or their obligation to maintain the same, either party may apply to two or more fence viewers of the township where the lands lie, who, after due notice to each party, may in writing assign to each his share thereof, and direct the time within which each party shall erect or repair his share of the fence in the manner provided; which assignment, being recorded in the township clerk’s office, shall be binding upon the parties, and' upon all the succeeding occupants of the lands; and they shall be obliged always thereafter to maintain their respective portions of said fence.”
It is admitted that plaintiff has no agreement with Mrs. Van Burén for the maintenance of the fence, nor is there any evidence that she knew of the claimed agreement between the original owners.
The trial court in affirming the action of the fence viewers reasons as follows:
“In examining 1 Comp. Laws 1929, §1068 (Stat. Arm. §5.215), above referred to, it will be'noted that the fence viewers ‘may in writing assign to each his share thereof, and direct the time within which each party shall erect or repair his share of the fence in the manner before provided, which assignment, being recorded in the township clerk’s office, shall be binding upon the parties,’ et cetera.
“This cause has been brought into a court of equity, presumably because there appears to be no provision for an appeal from the fence viewers’ decision, and therefore there must be something inequitable about the action of the fence viewers before the court could set aside their finding.
“The court does not find anything inequitable in their division, and it is admitted that there is some disagreement about the condition of the fence. It would seem that inasmuch as the plaintiff called in the fence viewers, that he is not in an equitable position to complain of their action. Added to this is also the important fact that there was no such agreement between the plaintiff and the defendant Van Burén, and no notice on her part of the agreement as claimed by plaintiff.
“The finding of the fence viewers will therefore stand, and the plaintiff’s bill is dismissed, with costs to be taxed.”
In 22 Am. Jur. p. 526, it is said:
“Although some authorities declare'that an oral fencing agreement does not run with the land, and 'therefore is not binding upon a grantee of one of-, the parties, it is held that an agreement by adjoining owners to maintain or to erect and maintain each a definite portion of a partition fence is not required to be in writing apd that an oral agreement of this kind is binding until repudiated upon the parties and such of their successors in title as have notice or when recognized and acted upon by those in privity with the parties thereto.”
In our opinion the above rule is an equitable and just rule to follow. But Mrs. Van Burén, not having-notice of the oral agreement between the original land owners, is not bound by such agreement.
In the case at bar the fence viewers met and established the portion of the line fence which each of the parties should maintain. Their determination was approved by the township board and a record made thereof in the office of the township clerk. While the laws of Michigan do not provide for an appeal from the determination of fence viewers, yet a court of chancery can review such action on the part of the fence viewers and annul their determination when it is found that their determination was arbitrarily made or inequitable to either of the interested parties. In the case at bar the’ fence viewers determined that each of the parties should have a continuous 40-rod strip of fence to maintain. We cannot say that such determination was against the just rights of either of the parties.
The decree of the trial court dismissing plaintiff’s bill of complaint is affirmed, with costs to defendants.
Carr, C. J., and Butzel, Bushnell, Boyles Reid, North, and Dethmers, JJ., concurred. | [
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Bushnell, C. J.
Leave to appeal, in tbe nature of mandamus, was granted to review orders of the circuit court of Arenac county, entered April 17, 1946, denying tbe motions of plaintiffs Tony Tudryck and Mary Tudryck, bis wife, and defendants Andrew Smyl and Victoria Smyl, bis wife, to set aside a certain decree and granting tbe motions of defendant Joseph Martin, receiver of Sterling Bank of Sleeper and Chamberlain, to dismiss tbe Tudryck and Smyl motions.
A record of 270 pages is presented, to which is added a separate volume of 264 pages of exhibits, and tbe respective parties have filed 10 separate briefs. Notwithstanding all this, relatively simple questions are involved, tbe principal ones being: (1) tbe effect of a settlement agreement between plaintiffs Tudryck and H. L. Switzer, then permanent receiver of tbe defendant bank,- and (2) whether tbe decree entered as a result of such agreement is binding on defendants Smyl, they never having been served with tbe bank’s cross bill.
Litigation involving some of tbe same parties and subject matter is presently pending in this Court in tbe case of Tudryck v. Mutch, ante, 86, decided herewith, and it is suggested in tbe briefs that tbe other litigation will shortly be before us in tbe case of Lipp man v. Martin, Receiver. It might he noted , here that none of this litigation would have existed were it not for the discovery of oil on the lands involved therein.
Plaintiffs sought an accounting against defendants J. O. Mutch and Harvey A. Chamberlain, co-partners doing business as the Sterling Bank of Sleeper and Chamberlain. Smyl and wife were joined as’ defendants, although no personal relief was sought against them. The ultimate object of the accounting suit was to secure a determination that plaintiffs were the fee owners of the property involved, and that it was free and clear of all liens and encumbrances.
Plaintiffs claim that they purchased 110 acres of land in the township of Deep River, Arenac county, Michigan, on May 24, 1920, and 60 additional acres on October 22, 1923. It is stated in the bill of complaint that on the latter date the Tudrycks and the Smyls, then joint owners, were jointly and severally indebted to the bank in the sum of $3,500, secured by a mortgage on this property; that further loans were subsequently granted, secured by a further mortgage; that on November 22, 1929, a deed to the premises was given to Mutch, as cashier, reciting an indebtedness by the Tudrycks and the Smyls of $5,559. This deed was admittedly given as additional security in connection with an additional loan. The Tudrycks claim that they subsequently, with the full knowledge of Mutch, purchased from the Smyls all their right, title and interest in and to the lands, and have since occupied and farmed the property.
In 1930, with the bank’s consent, they sold 30 acres, the proceeds of which were applied on their indebtedness to the bank. Later, other moneys were borrowed and other payments made, so that in 1934 the bank indebtedness was reduced to $3,000. At this time a land contract covering 140 acres was issued by Mutch, as cashier, to the Tudrycks, on which interest was paid in 1935.
As a result of the transactions disclosed in the case of Tudryck v. Mutch, the Tudrycks claim that the bank received sums in excess of their indebtedness. They take the position that their indebtedness, having been discharged, the bank and others are wrongfully in possession of the premises; and that they, the plaintiffs, should be declared the fee owners, free of any liens thereon. To these averments, defendants Mutch and Chamberlain replied, and by cross bill sought foreclosure of the several, mortgages and sale of the property in satisfaction thereof.
The record shows that defendants Smyl were defaulted for nonappearance after personal .service, and the opinion of the trial judge states:
“The charge that defendants Smyl were never served with process-was withdrawn in open court.”
They were not, however, served with either a copy of the bank’s cross bill or a summons upon the filing of such cross bill.
The original bill was filed on August 16, 1938, and after several hearings a written stipulation was filed on January 27, 1940. It was agreed by Tudryck and his wife, by their attorney, Harry J. Lippman, and H. L. Switzer, then permanent receiver and successor to defendant Joseph Martin, .the temporary receiver, by his attorney, that $300 be paid the Tudrycks in consideration of which they would convey to the receiver all their right, title and interest to the lands, including the equity of redemption from mortgages and land contracts referred to in the pleadings, together with all mineral rights and any interest in oil and gas leases. The receiver, upon payment of this sum, should become the owner in fee simple of the property in question and all indebtedness to the bank would be cancelled. (We here note that on December 13, 1938, H. L. Switzer was appointed by the court as permanent receiver of the bank, and that on September 15, 1942, the court accepted his resignation and appointed Joseph Martin ag his successor. Martin had been for a time the temporary receiver of the bank).
A decree improper form and ample in substance was filed in the cause contemporaneously with the stipulation. Later, an affidavit of service of notice of entry of the decree served on plaintiffs ’ attorney was filed on February 18, 1940, together with a receipt of Lippman for the $300. The Smyl motion to vacate this decree was filed almost four years later, on August 16, 1944, to which was attached an affidavit by Andrew Smyl and another by his wife, in which numerous questions were raised, including their claim of ownership. A like motion was filed by the Tudrycks on October 31, 1944. Martin, as successor receiver, filed motions to dismiss those of Smyl and Tudryck, together with counter affidavits.
Upon the issues thus framed, the matter came on to be heard on December 12, 1944, when the court received certain documentary evidence and heard the parties. At a later hearing it developed that part of the attack upon the decree was based upon the fact that the settlement was made with Switzer when, although fie was the permanent receiver, he had not been substituted for Martin, who filed the answer and cross bill in his capacity as temporary receiver.
The decree which was entered as the result of the stipulation to which the Tudrycks were parties by their attorney is, in essence and effect, a consent decree.
“A judgment by consent cannot ordinarily be set aside or vacated by the court without the consent of the parties thereto * * * for the reason it is not the judgment of the court but the judgment of the parties.” In re Estate of Meredith, 275 Mich. 278, 289 (104 A. L. R. 348).
This view follows the rule promulgated in the headnote in Russell v. White, 63 Mich. 409, which reads:
‘ ‘ Orders and decrees made by consent, and with full knowledge of the facts, are binding upon the parties consenting, and cannot be gainsaid so long as they remain in force. ’ ’
The record clearly shows that Lippman was authorized to enter into the stipulation, and that Tudryck indorsed the receiver’s check for $300, the consideration named in the settlement agreement. He and his wife executed and acknowledged a quitclaim deed in consummation thereof. The Tudrycks were present in court during the taking of testimony and at the conference which led to the settlement agreement. They do not claim that they were either ignorant of or mistaken as to the facts. Several months later, Mary Tudryck gave her husband, Tony, an assignment of all her interest in the properties and in which she recited that they were those “which my said husband and myself did own prior to January 25, A.D. 1940.” This assignment was given so that her husband could prosecute in his own name his action for damages against Mutch in the case of Tudryck v. Mutch.
The applicable rule is thus summed up in the headnote of August v. Collins, 265 Mich. 389:
“An attorney-at-law is presumed to have authority to represent a party litigant for whom he ap pears and failure of litigant with knowledge of such appearance to deny such authority and repudiate such appearance promptly and unequivocally works ratification. ’ ’
To argue at this late date that the Tudrycks. did not authorize the settlement, or that their attorney exceeded his authority is, to say the least, not appealing to the conscience of the Court.
Smyl’s argument that the .decree should be set aside because neither he nor his wife was served with the cross bill filed by the bank is beside the point. Had this cross bill never been filed, the situation would be the same so far as, the Smyls are concerned. When they were served in the action brought by the Tudrycks against the bank, they were charged then and there with notice that it was asserted that they had no interest in the subject-matter of the litigation. The situation is unlike that presented in Huebner v. Winskowski, 246 Mich. 77, where one seeking to enforce a mechanic’s lien filed a cross bill and failed to serve those having an interest in the property.
By their failure to appear and deny the allegations of the original bill, the Smyls admitted all the well pleaded averments thereof. One of these admissions was that they had no further interest in the subject-matter of the litigation and that, the accounting between the Tudrycks and the bank and others was none of their concern. 'We find nothing in the decree outside the scope of the bill of complaint; nor is a cross bill requisite to granting affirmative relief to a defendant in an accounting suit. Long v. Earle, 277 Mich. 505, 527; and see 1 Am. Jur. p. 307, § 63, therein quoted.
In the case of Tudryck v. Mutch, wherein Tudryck asserted sole ownership of the properties and the right to" recover for damages caused by Mutch, Smyl testified at considerable length, without the slightest intimation, that he had any interest therein. His belated attempt, four years later, to assert snch an ^interest must be precluded by the doctrine of laches "and the provisions of Court Rules Nos. 28 and 48 (1933, as amended).
We are not impressed with the contention that the settlement is void because it was made with the original defendant receiver’s successor, who was permitted to intervene, nunc pro tunc. Nor can it be said that if this was a defect it could not be cured.
The Court said in Daly v. Wayne Circuit Judge, 102 Mich. 392, 394:
“It was a proper exercise of the court’s discretion to permit the amendment of the verification and the filing of a replication after decree. Had the questions arisen upon the hearing, the power to do so would probably not have been questioned; but the questions were not raised then, and, when they were raised, were no more meritorious than they would have been upon the hearing. There is no legal impediment, for courts may permit amendments to the pleadings or proceedings after judgment. ’ ’
It is unnecessary to determine that the settlement agreement was defective, because it is obvious that “the substantial rights of the parties” were not affected by the claimed defect. 3 Comp. Laws 1929, §14144 (Stat; Ann. § 27.838). We approve, nevertheless, of the nunc pro tunc order entered as of the date of the trial judge’s opinion. This order allowed the permanent receiver, Switzer, to intervene as a party defendant in the place of his predecessor, the temporary receiver, Martin.
Both appellants have suggested that State and Federal constitutional questions are involved, arguing that the decree exceeds the judicial power of the court in purporting to give relief to a permanent receiver who was a stranger to the proceedings. The conclusion as thus stated is based upon a false premise. Both receivers, predecessor and successor, were officers of the court in which the cause was pending; and we have never understood that the. authority of a successor receiver, as an officer of the court, can thus be challenged. "We find no constitutional questions involved.
Other questions raised have been examined and, because of their inconsequential nature, are deemed unimportant.
The orders appealed from were proper and correct. They are affirmed, with costs to appellees.
Sharpe, Boyles, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred.
See 3 Comp. Laws 1929, §14146 (Stat. Ann. §27.840). — Reporter. | [
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Reid, J.
This is a divorce case. Defendant appeals from a decree which granted plaintiff a divorce and the custody of Lynne Emery, now about 6 years of age, the only child of the parties, and gave plaintiff the residence property of the parties which had been Held by them as tenants by the entirety, the household furniture and fixtures, and alimony of $12 per week for the support of the child of the parties until’ the said child shall reach the age of 17 years or until the further order of the court. Defendant raises no question over the sufficiency of the testimony to entitle plaintiff to a decree of divorce. He was justly found at fault. The only contest involved .in this appeal is over the disposition of the residence of the parties.
Plaintiff and defendant were married August 12, 1939, at Port Huron, and have continued to reside there. The arrangement for the purchase of the residence property in question was’ made two or three weeks before the marriage. The purchase price was $3,500 and there is some showing that the present value of the property is $7,000, subject to a $1,500 mortgage. The down payment, $1,238.63, was made by plaintiff out of her own money; defendant had agreed to contribute to the down payment but he did not do so.
About the time of her marriage plaintiff’s bank accounts totaled $865. Plaintiff- worked at Chrysler’s for 17 months after her marriage, during which time she earned $1,500. She, also, .at the time of the marriage and during their married life received $3,400 in inheritance and gift from her relatives. Plaintiff bought all of the furniture in the house from her own saved earnings. During the marriage from her own funds she paid $175 on the painting of the house and paid for other improvements to the property. She also paid from her own funds $387 for the rental of a summer cottage occupied by the parties during their marriage, a total of $273 for two stokers and, also, a total of $200 for medical expenses.
Defendant did not testify. From plaintiff’s testimony it can be deduced that defendant, who also' worked at Chrysler’s, received at least the wages of an ordinary .automobile factory worker and that he paid perhaps as much as $763 on the principal of the mortgage and possibly about $600 in interest. Defendant also paid most of the daily food expense of the household.
The decree appealed from makes no provision for the future support of the, plaintiff and she is awarded $1 in lieu of dower. Defendant is obligated on the mortgage note, but the contingency that he may be called upon to pay the mortgage debt is so reinóte that we need not concern ourselves with it. Release from future support of plaintiff must be a matter of very great financial value to defend ant. The award of the residence to plaintiff is fair under all the circumstances.
The decree appealed from is affirmed. Costs to plaintiff.
Bushnell, C. J., and Sharpe, Boyles, North, ■ Dethmers, Butzel, and Carr, JJ., concurred. | [
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Reid, J.
(for affirmance). On April 23, 1946, plaintiff Robert W. Peters filed an application for hearing and adjustment of claim -as an employee of Michigan State College, which is under the control and general supervision of the State board of agriculture, which board is hereinafter referred to as defendant, alleging that he suffered a personal injury on February 12, 1946, which arose out of and in the course of his employment.
On May 4, 1946, defendant filed a motion to dismiss plaintiff’s application for hearing and adjustment of claim on the ground that defendant, not having elected to become subject to the Michigan workmen’s compensation act and amendments thereto, was not subject to the provisions of said act. A deputy commissioner entered an order denying the motion.
On July 10, 1946, the defendant applied.to the compensation commission of the department of labor and industry for review of claim. The commission on January 9, 1947, pursuant to opinion simultaneously filed, entered its, order denying the defendant’s motion, and remanded the case to a deputy commissioner to be heard on its merits. From this order (on leave being granted) defendant appeals.
The sole issue presented is whether the defendant, a constitutional corporation,- is subject to- the provisions of the Michigan workmen’s compensation act, as amended.
Part 1, § 2 of the act, 2 Comp. Laws 1929, § 8408, as amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8408, Stat. Ann. 1947 Cum. Supp. § 17.142), in part reads as follows:
“Sec. 2. On and after the effective date of this section, every employer, public and private, and every employee, unless herein otherwise specifically provided, shall be subject to the provisions of this act and shall be bound thereby.”
Part 1, § 5, of the act, 2 Comp. Laws 1929, § 8411, as amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8411, Stat. Ann. 1947 Cum. Supp. § 17.145), reads as follows:
“Sec. 5. The following shall constitute employers subject to the provisions of this act:
“Public. 1. The State, and each county, city, township, incorporated village and school district therein, and each incorporated public board or public commission in this State authorized by law to hold property and-to sue or be sued generally;
“Private. 2. Every person, firm and private corporation, including any public service corporation, who has any person in service under any contract of hire, express or implied, oral or written.”
The defendant is an “incorporated public board” within the meaning, of section 5 above quoted.
Sections 7 and 8, art. 11, State Constitution 1908, are as follows:
‘ ‘ Sec. 7. There shall be elected on the first Monday in April, nineteen hundred nine, a State board of agriculture to consist of six members, two of whom shall hold the office for two years, two for four years and two for six years. At every regular biennial spring election thereafter, there shall be elected two members whose term of office shall be six years. The members thus elected and their successors in office shall be a body corporate to be known as ‘The State Board of Agriculture.’
‘ ‘ Sec. 8. The State board of agriculture shall, as often as necessary, elect a president of the agricultural college, who shall be ex-offició a member of the board with the privilege of speaking but not of voting. He shall preside at the meetings of the board and be the principal executive officer of the college. The board shall have the general supervision of the college, and the direction and control of all agricultural college funds; and shall perforin such other duties as may be prescribed by law.”
We note that in section 7, above cited, the defendant is designated a body corporate, hence our conclusion that defendant is an incorporated public board.
The sole remaining question is whether it is competent for the legislature to prescribe that the defendant shall be subject to the workmen’s compensation act.
Defendant claims that, the provision in section 8, above cited, that the board (defendant) shall have the general supervision of the college and the direction and control of all agricultural college funds, prevents the legislature from requiring the board to expend any of the agricultural college funds for workmen’s compensation.
Defendant cites Robinson v. Washtenaw Circuit Judge, 228 Mich. 225, which involved malpractice suits brought against the regents of the University of Michigan and a surgeon employed in the university hospital. The suits had been dismissed in circuit court and plaintiffs in those suits brought mandamus to compel the circuit judge to set aside his orders of dismissal. The board of regents (defend-ant in the original suits) had claimed immunity on the ground that the university hospital operated by the regents is a charitable institution. The opinion in the case says, page 227, that that ground is the only objection regarded as calling for serious consideration. However, at the conclusion of the opinion on page 230 we say, “On the case stated in plaintiffs’ declarations we think denial of liability as to the regents could safely be rested on either ground,” referring to the words, “State instrumen taliides, as well as charities,” in the immediately preceding excerpt quoted^ in that opinion.- In other words, we held that the board of regents was immune both on the ground of being a State instrumentality and on the ground of their hospital being a charitable or eleemosynary institution.
Immunity of defendant in the case at bar as a State governmental agency is not provided for in our State Constitution and the legislature by force of the words, “incorporated public board” has included defendant as an employer subject to the workmen’s compensation act, thus to that extent depriving defendant of its immunity as an instrumentality of government. See Benson v. State Hospital Commission, 316 Mich. 66.
The Robinson Case, supra, does not in any wise discuss the meaning and effect of the constitutional clause giving defendant control of the funds of the college and the decision in that case does not aid the defendant in the case at bar.
Under the workmen’s compensation act as originally enacted by Act No. 10, Pub. Acts 1912 (1st Ex. Sess.), the private employer was at liberty to accept or not to accept the provisions of the act, but the State and political subdivisions thereof in general (with certain exceptions) were included as subject to the act without their consent.
In part 1, § 5, of the act, as amended by Act No. 50, Pub. Acts 1913, effective August 14, 1913 (2 Comp. Laws 1929, § 8411 [Stat. Ann. § 17.145]), under the heading, “Public. 1.,” incorporated public boards are made subject to the provisions of the act. Such incorporated public boards were not subject to nor mentioned in the act as originally enacted (Act No. 10, Pub. Acts 1912 [1st Ex. Sess.]), above referred to. In the case of Agler v. Michigan Agricultural College, 181 Mich. 559 (5 N. C. C. A. 897), the em ployee was injured April 18, 1913, which was before the act of 1913, supra, was effective; hence in the Agler Case we say, page 563, that “the respondent was not within the list of employers who come under the provisions of the law of 1912 automatically.” Defendant was not within such list at the time Agler received his injuries. The words just quoted must be construed to apply to the situation at the time of the occurrence of the supposed liability. The question before the Court in the case at bar was not decided in the Agler Case.
The case of State Board of Agriculture v. Auditor General, 226 Mich. 417, was brought in consequence of an effort on the part of the State administrative board to control the expenditures of the plaintiff State board of agriculture (the same board which is defendant in the case at bar) under an act of the legislature granting the State administrative board such powers. If the administrative board had been upheld in its contention, it would have exercised control over the educational activities of the college. In that case we held that the State administrative board could exercise no control over, the funds of the college, such control being given to plaintiff board under the-provisions of the Constitution 1908, art. 11, §§ 7, 8 (hereinbefore cited in this opinion). However, the provision of the Constitution giving the State board of agriculture sole control of the funds of the college does not generally exempt the said board from the great body of general laws of this State. It is to be noted that section 8 of article 11 of the State Constitution above quoted closes with the wordfe, referring to the State board of agriculture, “shall perform such other duties as may be prescribed by law. ”
We have heretofore had occasion to pass- upon the constitutionality of the workmen’s compensation act as to some one or other of its various provisions in several cases, among which are the following: Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8; Wood v. City of Detroit, 188 Mich. 547 (L. R. A. 1916 C, 388); Grand Rapids Lumber Co. v. Blair, 190 Mich. 518; Wall v. Studebaker Corporation, 219 Mich. 434; American Life Insurance Co. v. Balmer, 238 Mich. 580. In none of these cases has the act been found unconstitutional as to any phase of the act brought under consideration therein.
We have heretofore decided in the Mackin Case, supra, that the title of the act in question fairly expressed its purpose.
The purpose of the workmen’s compensation act partakes of the nature of the exercise of police power. It is aimed at promoting-the welfare of the people of the State. See Wallace v. Regents of University of California, 75 Cal. App. 274 (242 Pac. 892); Casey v. Hansen, 238 Iowa, 62 (26 N. W. [2d] 50).
“The sovereign power of the State includes protection of the safety, health, morals, prosperity, comfort, convenience and welfare of the public, or any substantial part of the public.” (Italics supplied.) Cady v. City of Detroit, 289 Mich. 499, 504, 505.
The defendant corporation is not-vested by the State Constitution with any powers of a police nature. Neither is the defendant corporation vested with any power to regulate the general welfare of the people of this State. It is for the legislature to exercise such powers.
As amended in 1920, article 5, § 29, of the State Constitution provides as follows:
“Sec. 29. The legislature shall, have power to enact laws relative to the hours and conditions un der which men, women and children may be employed.”
Before the amendment of 1920 (which added the word “men” in the above section), we had decided in Wood v. City of Detroit, 188 Mich. 547 (L. R. A. 1916C, 388), that the workmen’s compensation act was not violative of the State Constitution even as respects liability for death of an employee of a municipality through. its public lighting commission, notwithstanding rights of local self-government given by the Constitution to municipalities. In that case we said, page 560,
“Whether it [the workmen’s compensation act] is or is not denominated a police regulation, municipal corporations are, for the purpose of carrying out such a measure, subject to legislative control.”
We find that the workmen’s compensation act is a valid constitutional exercise of the power of the legislature even when it makes necessary the expenditure of agricultura] college funds in the compensation of employees under the terms and within the provisions of the workmen’s compensation act.
The act is approved as a piece of legislation aimed not at the defendant alone, nor against any of the activities of the defendant of a nature peculiar to defendant. The act is of a broad scope addressed t<p the subject of the liability of employers in broad fields of employment. The workmen’s compensation act does not undertake to change or disturb the educational activities of the defendant board.
The control of State college funds must be considered as given to defendant for the purposes of the particular and peculiar educational activities of the State college, not for the purpose of disturbing the general relationship in this State of employer and employee, nor evading laws enacted to promote' the general welfare of the people of this State. Article 11, § 8, above cited, is not to be construed as withholding from the legislature the authority to make the defendant board liable and subject to the entire workmen’s compensation act in question.
The order of. the department remanding the claim for hearing on its merits’ is affirmed. No costs are allowed, a matter of public importance being involved.- | [
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Butzel, J.
On December 28, 1946, Wyman S. Abel and 277 others filed a bill in the circuit court for the county of Wayne, in chancery, against Edward Behrendt, sheriff-elect of Wayne county, Andrew C. Baird, the incumbent sheriff, whose term of office expired three days later on December 31, 1946, the civil service commission of the county of Wayne, its members and personnel director, and the chairman and members of the Wayne county board of auditors. One of the plaintiffs, Mabel L. Seaborg, signed and swore to the bill of complaint as agent for all of the plaintiffs and on her own behalf. Eighty-three of the plaintiffs have filed affidavits to the effect that they never gave their consent to become parties plaintiff to the case, and that their names had been signed without any authority whatsoever. They had a right to withdraw as parties plaintiff.
Plaintiffs alleged in their bill that for months and years each and all of them have been employees in the sheriff’s office of Wayne county, having been selected and appointed to their positions by the sheriff, and having performed their duties under his supervision. They set forth the adoption of a county civil service system by the electors of Wayne county in conformity with Act No. 370, Pub. Acts 1941 (Comp. Laws Supp. 1945, § 1464-11 et seq., Stat. Ann. 1947 Cum. Supp. §5.1191 [1] et seq.), effective on November 20, 1942. They further allege that some of the plaintiffs had been in the employ of the sheriff of Wayne county for more than two years prior to, the date the civil service act became effective in the county, that many others of the plaintiffs are fully entitled to the -benefits of the act, and that they and the positions they respectively hold and occupy are-entitled to be blanketed into civil service status. They allege a failure on the part of the civil service commission to perform its duty to classify their positions under civil service and claim that the commission has discriminated against them.
It is also alleged that the sheriff-elect, Edward Behrendt, has announced his intention to remove plaintiffs from their positions, contrary to their rights under the civil service act, without any action on the part of the civil service commission. They ask for writs of injunction and mandamus to prevent the sheriff-elect from discharging or removing them. They also pray that a declaratory judgment' be rendered to the effect that each and every one of them is entitled to be blanketed into civil service status as employees of Wayne county, and that each of them is entitled to the civil service status applicable to their several positions under the rules and regulations adopted by the county civil service commission. They further pray that the defendants be ordered to perform each and all of the acts and duties by law incumbent upon them severally to be performed.
On application, an order to show cause why a temporary injunction should not be granted was issued. Evidently no temporary injunction was issued. All of the defendants, with the exception of Baird, moved specially to dismiss the plaintiffs’ hill of complaint.
Defendants contend that plaintiffs have a full, adequate and complete remedy at law by petition for writ of mandamus, and that their bill does not state an equitable cause of action. In their motion to dismiss, they also insist that there is an improper misjoinder of parties, and that the legal question involved had been decided adversely to plaintiffs in two cases that arose in the Wayne circuit court. Defendants specifically refer to the cases of Hunter v. Sheriff of Wayne County, and Wagner v. Sheriff of Wayne County, decided by Circuit Judge John Y. Brennan on December 10, 1945, in which he held that deputy sheriffs are not subject to the provisions of the county civil service act. On Septembér 12, 1946, application to this Court for leave to appeal from this decision was denied.
Numerous affidavits were filed in the instant case by the respective parties. Plaintiffs claim that the decisions in the Hunter and Wagner cases do not affect them as they were not parties to the litigation. It seems that in those cases, Mr. Baird, by whom almost all of the plaintiffs were employed as deputies, strenuously claimed that neither Hunter nor Wagner, two of his deputies, came under the civil service act and that he had a right to discharge them. Plaintiffs now claim that the court was wrong in upholding Mr. Baird’s claims. However, defendants contend that if plaintiffs were dissatisfied with the decisions in the Hunter and Wagner cases, it was their duty to act promptly. Wagner, the plaintiff in one of the cases, had held the position of jail superintendent under Sheriff Baird, and the cases and their outcome undoubtedly came to the attention of almost all of the plaintiffs. Defendants claim that there was ample time from December 10, 1945, when Judge Brennan handed down his decision, or from September 12, 1946, when this Court denied application for leave to appeal, or even from November 5, 1946, when Mr. Baird was defeated at the polls, in which to file a proper petition for a writ of manda,mus to have the rights of the plaintiffs determined. Defendants point out that the plaintiffs’ bill was filed only three days (one of which was a Sunday), prior to the time the sheriff-elect was to take office, and that it is the duty of the incoming sheriff to make his appointments of deputies in advance so that the administration of the office may be taken over smoothly without interruption. The contention, in effect, is that plaintiffs have been guilty of laches. However, laches is a personal defense which must be pleaded, and as no answer has yet been filed by defendants, that question may not be considered at the present time.
In the motion to dismiss, it is further claimed that plaintiffs have joined a petition for writ of mandamus, a law action, with a bill in equity. While there may be real merit to this claim, we do not pass on it now. Plaintiffs, on the other hand, insist that, in the last analysis, the -suit is one for a declaratory judgment. Defendants claim that such a suit would be improper, as mandamus furnishes a full, complete and adequate remedy, and that plaintiffs cannot by-pass the civil service commission by asking for a declaratory judgment blanketing the plaintiffs into civil service status. We have frequently held that where relief may be obtained at common law, a declaratory judgment will be denied. Miller v. Siden, 259 Mich. 19; Page v. Story, 280 Mich. 43; Rott v. Standard Accident Insurance Co., 299 Mich. 384. Also, see annotation in 172 A. L. R. 847, at page 861.
The county civil service act (Act No. 370, Pub. Acts 1941, supra) provides in section 14 that all appointed officers and employees of the county who have held their positions for more than two years prior to the effective date of the act, shall hold their positions without examination, while those who have been employed for one year and less than two years shall be required to take a qualifying examination, and those employed for less than one year shall be required to pass a competitive examination. Provision is also made for filling of vacancies. Even assuming that the decision of the circuit judge in the Hunter and Wagner cases would be reversed, still this Court could not, by a declaratory judgment, by-pass the civil service commission and order.all of the plaintiffs to be blanketed into civil service status.
Plaintiffs claim that by bringing the present form of action they avoid a multiplicity of suits. However, if class suits were brought, it would require but three suits to classify deputy sheriffs who respectively began their terms of office either two years, one year or less than one year prior to the effective date of the act.
However, in one of the exhibits filed by plaintiffs it appears that several of the plaintiffs were employed by Sheriff Baird in December, 1946, but a few weeks prior to his retirement from office. The question naturally arises how does this affect plaintiffs. The bill does not show what positions the plaintiffs held.
The trial judge, in a short opinion, took the view that the question raised by the bill of complaint is whether the parties come under the jurisdiction of the civil service commission. He said:
“The court feels that he is unable to tell by the hill of complaint and the affidavits filed with the motion to’dismiss just the particular status of the plaintiffs in the action, that is, whether they are deputy sheriffs or whether they are members of the sheriff’s staff that are not deputized; that therefore he cannot on this motion to dismiss decide that question. ’ ’
The facts were not before the circuit judge and they are not before us on a motion to dismiss. It is true that on a motion to dismiss we must assume all well-pleaded facts alleged, in the bill of complaint to be true. On the present record the trial judge did not have a full opportunity to ascertain all of the facts and then come to an independent conclusion. We are not able to. do so either. We, therefore, believe that the order denying the motion to dismiss should he affirmed and the case remanded for further proceedings, but without costs, a public question being involved.
Bushnell, C. J., and .Sharpe, Boyles, Reid, North, Dethmers, and Carr, JJ., concurred.
See 3 Comp. Laws 1929, §13903 et seq. (Stat. Ann. §.27.501 et seq.).—Reporter. | [
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Carr, J.
This suit was instituted in the. circuit court of Oakland county, April 25, 1947, for the purpose of obtaining a declaratory decree under the provisions of Act No. 36, Pub. Acts 1929 (3 Comp. Laws 1929, § 13903 et seq. [Stat. Ann. § 27.501 et seq.]). The bill of complaint alleged that plaintiff Finlayson was a duly qualified elector of the defendant township and that plaintiff Schied was a duly qualified elector of the defendant city of Sylvan Lake. It was further averred that- on February 20, 1947, an election was held in. said township on the-question whether licenses should be issued for the sale of liquor by the glass, that the proposition failed to carry by five or six votes, and that some of the __ residents of Sylvan Lake were permitted to take part in said election. Plaintiffs asserted that the election was in consequence void and asked that the court so decree. They also requested that the proper officers of the township be ordered to conduct a new election. However, no officers of the township were- made parties defendant in the case.
The bill also alleged that on March 20, 1946, an election was held in the village of Sylvan Lake on the - question of incorporation as a city, that the proposition carried, and that the report of such result was filed in the county clerk’s office June 27, 1946. The bill did not allege the existence of any controversy with reference to this election, the averment’s apparently being incorporated in support of the claim that electors residing within the city were not entitled to participate in the township election on the question of issuing licenses for the sale of liquor by the glass. Presumably, the averments with reference to the effectual date of the incorporation of the city were based on 1 Comp. Laws 1929, § 2249 (Stat. Ann. § 5.2092), as construed by this Court in Dearborn Township v. City of Dearborn, 308 Mich. 284.
Defendant township filed its answer to the bill of complaint and joined with the other defendant in a motion to dismiss based on the following grounds:
‘ ‘ (1) Because such bill of complaint does not state a cause of action;
“ (2) Because such bill of complaint does not state a cause of action cognizable in a court of equity ;
“ (3) Because it appears from the face of said bill of complaint that the plaintiffs ’ remedy, if any they have, is in a court of law;
“ (4) Because the plaintiffs’ bill of complaint was not filed within 30 days after February 20, 1947, the date of the election involved in this suit, as required by law, and as required by 3 Comp. Laws 1929, § 15299 (Stat. Amu § 27.2343);
“(5) Because the plaintiffs are not entitled to maintain an action of this character in their own behalf and names without leave of court. ’ ’
Following argument of the motion the trial court dismissed the bill of complaint, primarily on the ground that the- action had not been seasonably brought. From such order plaintiffs have appealed.
Under the-specific terms of the" declaratory judgment act, above cited, the existence of an actual-controversy is necessary to enable the court to make a binding declaration of rights. The interpretation and application of the statute were before this Court in Village of Grosse Pointe Shores v. Ayres, 254 Mich. 58, where it was said:
“A requisite to the proceeding is an actual controversy over a specific issue to be. set up in the pleadings, in order that a binding declaration of rights may be made thereon. The proceeding is special, is not a substitute for the regular^ actions, and is not an exercise of general equity jurisdiction in which the court may grant conséquential relief under a general prayer or upon general equitable considerations. Washington-Detroit Theatre Co. v. Moore, 249 Mich. 673 (68 A. L. R. 105); 50 A. L. R. 42; 19 A. L. R. 1124; 12 A. L. R. 52, notes.”
As before noted the only controversy alleged in the bill of complaint in the instant case had reference to the township election. Construing the pleading in its entirety it is apparent that plaintiffs desired to have this election set aside because persons not qualified to vote had been permitted to do so. The motion to dismiss and the determination thereon were clearly based on such theory. The right of the plaintiffs to maintain their action must be determined accordingly.
Defendant township averred in its answer that the election was held on January 20, 1947, rather than on February 20th, as set forth in the bill of complaint. In reply to the answer plaintiffs merely asserted that the actual date of the election was immaterial. The return to the county clerk as to the results of the election appears in the record and supports the claim of the defendant. It thus appears that over three months had elapsed following the election before plaintiffs started their suit.
On behalf of defendants it is contended that if plaintiffs desired to contest the validity of the township election they should have proceeded under the provisions of 3 Comp. Laws 1929, § 15298 (Stat. Ann. §.27.2342), which reads as follows:
“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 shall have been submitted any constitutional amendment, question, or proposition to the electors of the State or any county, township or municipality thereof.”
The next ensuing’ section (3 Comp. Laws 1929, § 15299 [Stat. Ann. § 27.2343]), further requires that: -
“Such petition shall be filed within thirty 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 Avithout 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.”
With reference to these sections of the statutes it was said in Youells v. Morrish, 218 Mich. 194:
“A reading of these new sections clearly evidences, we think, this legislative intent-: That where it is claimed there was fraud or there was error, invalidity, in an election at which any constitutional amendment, question or proposition has been voted upon, the proceedings to test the election must be against the municipality affected by the proceedings and must be brought within 30 days after the election. The purpose of the change is clearly apparent ; the municipality to be affected by the proceedings should have an opportunity to be heard, and public policy requires that there should be a speedy determination of the’ validity of the election before engagements are entered into by such municipality. ’ ’
In Anderson v. Levin, 218 Mich. 225, leave to file the petition was obtained from the circuit judge but it was not filed within the 30-day period fo’lloAving the election. It was held by this. Court that the proceeding could not, for that reason, be maintained. In Fulton Township School District, Gratiot County, v. School District No. 4 Fractional, Essex Township, Clinton County, 302 Mich. 566, plaintiff, claiming to be a regularly organized township school district, brought an action of mandamus to compel the defendant, one of its constituent school districts, to turn over certain assets. Defendant sought to question the validity of plaintiff’s organization. In sustaining the holding of the trial court that defendant was not entitled to make such claim, it was said:
“Appellants did not institute quo warranto proceedings within the statutory period of 30 days (3 Comp. Laws 1929, § 15299); and, being barred by the statutory time limitation, appellants may not in this proceeding indirectly secure the relief which they could not obtain in a direct proceeding by quo warranto. ’ ’
In Lake v. Township of North Branch, 314 Mich. 140, plaintiffs sought relief in equity because of alleged fraud in the conduct of an election on the question of organizing the defendant as a township school district. Quo warranto proceedings had been: brought under the statute above quoted prior to the filing of the suit in equity, had been determined adversely to the moving parties, and no appeal had been taken. After quoting 3 Comp. Laws 1929, § 15298, supra, it was said :
"The remedy provided in this statute is exclusive' and must be brought within 30 days after such election. 3 Comp. Laws 1929, § 15299 (Stat. Ann. § 27.2343); Youells v. Morrish, 218 Mich. 194, wherein it is said: ‘To assail such proceedings he (the petitioner) must do so in the manner pointed out by the statute.’ ”
Plaintiffs’ claim that they are entitled to ask for relief under the declaratory judgment act cannot be sustained. In the enactment of that statute the legislature did not intend to provide a substitute for regular actions. Village of Grosse Pointe Shores v. Ayres, supra; Evans Products Co. v. State Board of Escheats, 307 Mich. 506. In the last cited case the general principles underlying the maintenance’of actions for declaratory relief are summarized. Under the prior decisions of this Court above cited, plaintiffs’ remedy to test the validity of the township election, if they desired to do so, was by petition in the nature of quo warranto under the provisions of the statute quoted. In order to insure a speedy determination of any controversy that might arise of the character in question, the legislature deemed it expedient to require such action to be brought within 30 days following the election. This furnishes a sufficient answer to the suggestion of counsel for plaintiffs to the effect that, if relief cannot be granted under the declaratory judgment act, the case should be remanded to the circuit court with directions to transfer it to the law side for hearing as a quo warranto action. Such procedure was followed in Heidelmeyer v. Village of Oakwood, 222 Mich. 331, but there the suit was started nine days after the election was held. In Youells v. Morrish, supra, the proceeding was brought within the time limited but the municipality was not made a party as required by the statute. It was held that it could not be brought into the case by amendment after expiration of the 30-day period. In Anderson v. Levin, supra, and in Voorhies, ex rel. Bradburn, v. Nier 222 Mich. 374, proceedings were not started until after the expiration of the prescribed period and the orders of dismissal were sustained on that ground. For the reason that the case at bar was not instituted within 30 days after the election was held tbe conclusion follows, that plaintiffs are not entitled to have it transferred to the law side for trial.
Tbe order of tbe trial court dismissing tbe bill of complaint is affirmed, with costs to defendants.
Bushnell, C. J., and Sharpe, Boyles, Reid, North, Dethmers, andBuTZEL, JJ., concurred.
See 3 Comp. Laws 1929, § 14008 (Stat. Aim. § 27.652). | [
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North, J.
In this suit for the recovery of commission for the sale of real estate, tried by the circuit judge without a jury, plaintiff had judgment for $1,750. Defendant has appealed.
Through a real estate salesman, George F. Snyder, in plaintiff’s employ, defendant signed and gave to plaintiff a listing agreement for the sale of defendant’s property at a cash price of $35,000, or cash for defendant’s equity. The property was subject to a mortgage of $8,500. Myron Jatkowski and Mary Jatkowski, husband and wife, were the prospective purchasers, but since the negotiations seemed to have been with Mrs. Jatkowski we herein refer to her as the prospective purchaser. While this listing agreement was in force, plaintiff produced a purchaser who was ready, able and willing to purchase the property for $35,000 cash. Defendant failed to convey the property and this suit followed. The listing agreement contained the following: “Upon receipt of payment according to this contract, I agree to make a good and sufficient conveyance of said property by warranty deed. * * * I do here state * * * that my title to same is good and without incumbrance except $8,500 mortgage.”
In the main the theory upon which defendant resists payment of the real estate commission is that after he had given the listing to plaintiff, defendant with the knowledge of plaintiff’s employee Snyder, entered into a three-year lease of the property involved; and that the existence of snch lease was known to plaintiff and, also, to the prospective pur-chaser before the offer was made to purchase on the terms of the listing. And further, defendant makes the claim that at the time the offer to purchase was made, the prospective purchaser was willing to buy the property subject to the lease, but notwithstanding the purchaser’s willingness to purchase subject to the lease, plaintiff did not so inform defendant. Instead plaintiff, evidently acting in behalf' of defendant, interviewed the holder of the lease and as a result informed defendant that the lessee would not surrender his lease except upon payment of $3,000. Defendant refused to pay the $3,000 to secure cancellation of the lease, and the sale was not consummated.
In support of defendant’s contention that plaintiff should not be permitted to recover because at the time he procured the purchaser plaintiff knew of the outstanding lease, defendant cites and seems to rely upon our decision in Casey v. Hetherington, 220 Mich. 176. The cited case is not in. point'because plaintiff therein, before the preliminary agreement was signed by the property owner, knew of the outstanding leases which prevented consummation of the sale. In effect it was held that because plaintiff Casey had knowledge of the leases before the preliminary agreement was signed, he could not recover. But in the instant case the outstanding lease which prevented consummation of the sale was entered into after defendant gave plaintiff the listing agreement. Plaintiff did not authorize or make any change in the original agreement signed by defend ant. Obviously defendant could not, by subsequently making the lease, alter plaintiff’s rights under' the earlier listing agreement. The fact that, plaintiff knew of the lease before or about the time he produced a purchaser does, not bar recovery.
Nor do we think plaintiff’s right of recovery was impaired by the fact, as the testimony discloses, that the prospective purchaser was willing to purchase subject to the lease because the undisputed proof is that plaintiff did not know that the prospective purchaser was willing to purchase subject to the lease until the time of the trial, which was months after plaintiff sought to close the deal with defendant.
There is no merit to defendant’s contention that plaintiff should not recover because no actual tender of cash for the purchase price was made to defendant. This is true because it is a fair inference from the record that even if tender had been made it would have been an idle ceremony. Weinburgh v. Saier, 303 Mich. 640, 645. Consummation of the sale was not accomplished. because of the outstanding lease. Further, the payment of the purchase price was not due until the final closing of the transaction, and hence a tender was not requisite incident to the execution of the preliminary sales agreement.
Nor do we find any merit in defendant’s contention that the trial court committed error when, over defendant’s objection, Mary Jatkowski was permitted to testify that an arrangement had been made with the bank for a loan of $15,000 with which to meet in part the purchase price. _ Obviously this testimony was material and competent as bearing upon the phase of the case that plaintiff did in fact produce a purchaser ready, able and willing to purchase the property on the terms of the listing agreement defendant had given to plaintiff.
T3ie judgment entered in the circuit court is affirmed, with, costs.
Bushnell, C. J., and Sharpe, Boyles, Reid, Dethmers, Butzel, and Carr, JJ., concurred. | [
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North, J.
This is an action for libel brought by Robert Pfeiffer against Mark P. Haines, the owner and publisher of the Sturgis Daily Journal. Defendant admitted that the four alleged libelous articles were published in his paper on various dates between February 29, 1944 and April 1, 1944. The portions of the articles set forth in plaintiff’s declaration are printed in the accompanying footnote. In a large measure the defense consists of the claim that the articles were true in fact, but among other phases of the defense it is urged that the publications were qualifiedly privileged and without malice. The case was tried before a jury which rendered a verdict in favor of defendant and judgment was entered thereon. Plaintiff has appealed.
Plaintiff was a member of the Sturgis city commission, composed of 9 members. In a general way the alleged libelous articles were criticisms of the official conduct of five of the commissioners. The articles were not directed at plaintiff individually, but rather at the group consisting of the five members. Public sentiment reached the point that a special recall election was petitioned, and such an election was held March 7, 1944. At that election plaintiff’s defeat resulted in terminating his official position as a city commissioner. He was a candidate for the office of city commissioner at the general election held in April, 1944, at which election he was again defeated. The alleged libelous articles were obviously published incident to the respective municipal campaigns preceding the-recall election and the general election. In fact, the four publications upon which plaintiff relies were paid political advertisements, so designated in the publications, and were signed by “Sturgis Good Government League, D. G. Hopkins, Chairman.” These alleged libelous publications were obviously qualifiedly privileged.
Two of the three questions prefacing appellant’s brief present questions of law, which can be passed upon without further reference to the subject matter of the alleged libelous publications. The first of these two questions is stated in appellant’s brief as follows:
“Is the plaintiff required to prove malice when the nature of the alleged libelous statements shows that they are actionable per se?”
Appellant’s contention is not tenable wherein he asserts the trial judge erred in his holding that since the publications were qualifiedly privileged, plaintiff as to malice had the burden of proof. In this respect appellant relies upon Moore v. Booth Publishing Co., 216 Mich. 653, and quotes therefrom the following:
“In this, as in all such publications, there are certain facts stated which form the basis of the comment or criticism indulged in. If these facts and the comment and criticism thereon, when applied-to plaintiff, are of snch a nature as tended to blacken his reputation or subject him to public hatred, contempt or ridicule, their publication is libelous per se.” .
The quoted context does not state a rule as to the burden of proving malice. Instead it merely states that-a publication of the designated character “is libelous per se.” In such an event plaintiff’s right of recovery is not dependent on proof of special damages. The decision in the cited case affords plaintiff herein no support. Notwithstanding the alleged libelous publication in the cited case was very much of the same character as that in the instant suit, the trial court, on defendant’s motion, dismissed plaintiff’s suit, and such dismissal was affirmed in this Court. We there said:
‘ ‘ The motion was granted and the cause dismissed, the court holding that the article was not libelous per se, and, as no special damage was claimed, the declaration failed to state a cause of action.”
The trial court correctly charged the jury that plaintiff had the burden of proving malice. He did not charge that the alleged libelous publications did not in themselves constitute evidence of malice. Instead the alleged libelous articles were submitted to the jury, and the court charged:
“In determining whether the articles were malicious * * * you may also consider the character of the articles, the nature of the charges, and the prominence which was given to them in the paper, and whether or not they were published in good faith. * * *
“You have a right to look to all the circumstances surrounding the case as testified or disclosed by the evidence in the case in order to determine whether or not defendant acted in bad faith and with malice.”
The rule asserted by appellant that if the libelous statements are actionable per se, the plaintiff is not required to prove malice, does not apply to a libel case wherein, as in this instance, the publication is qualifiedly privileged. We have so held in several cases.
In one of such cases wherein the'publication was qualifiedly privileged, Justice Campbell, writing for the Court, said:
“Wheñe a communication is privileged, the plaintiff can not recover without proving affirmatively not only the falsehood of its contents, but also that it was published with express malice. Unless he can prove both of these points he must fail.” Edwards v. Chandler, 14 Mich. 471, 475 (90 Am. Dec. 249).
The above holding was quoted with approval in Trimble v. Morrish, 152 Mich. 624, 628 (16 L. R. A. [N. S.] 1017); and, also, in Everest v. McKenny, 195 Mich. 649 (L. R. A. 1917 D, 779), wherein plaintiff alleged the defendant had in effect falsely said: “The plaintiff was immoral, unchaste, a woman of loose habits.” A like holding was announced in Konkle v. Haven, 140 Mich. 472. A headnote reads:
“A letter derogatory of the character of a clergyman, written by a member of his congregation to the elders of a church of which he was about to assume charge, was quasi privileged, and in order to support recovery therefor plaintiff must show both the falsity of the charge and malice. ’ ’
A very large number of decisions are cited in the article on libel and slander in American Jurisprudence in support of its statement of the law, as follows : “In the case of communications which are known as qualifiedly privileged, the plaintiff cannot recover unless express malice, or malice in fact, is shown. In other words, the law recognizes circum stances in which malice should not be imputed.” 33 Am. Jur. p. 115.
In the very recent libel case of Bostetter v. Kirsch Co., 319 Mich. 517, we cited many supporting authorities and affirmed the following in the circuit judge’s charge:
“ ‘I charge you, members’of the jury, that because the article so published by the defendant in this case was qualifiedly privileged, the burden of proof is upon the plaintiff to prove to you by a fair preponderance of the evidence, two things: First, That the charges so made were untrue and false; Second, That the defendant made the publication with actual malice toward the plaintiff. ’ ’ ’
From the foregoing the law seems well settled that in a suit wherein the alleged libelous publication is qualifiedly privileged the plaintiff has the burden of proving both falsity and malice even though the libelous words are actionable per se. The trial judge was not in error in holding that plaintiff in the instant case, as a condition of recovering, was required to prove malice. That question was submitted to the jury as an issue of fact.
Appellant’s.brief presents the following question:
‘‘Were the instructions given to the jury so conflicting and inconsistent that the jury could not have arrived at a correct result By following all of the instructions given by the court?”
It may be conceded, as appellant points out in his brief, that the lengthy charge of'the court contains some inaccurate and possibly inconsistent statements of the law, but it does not follow that in consequence thereof plaintiff is entitled to a reversal and a new trial. Instead, the controlling consideration is whether the charge of the court, taken as a whole, misled the jury to the prejudice of plaintiff and resulted in his not having had a fair trial.
In Ms brief appellant selects certain more or less disconnected portions of the charge and insists that they cannot be reconciled one with another. In the first of these selected portions the court seems to have charged the jury that notwithstanding the alleged libelous publications were qualifiedly privileged, if they were “false or aspersive to plaintiff’s character as a public official, the defendant is liable therefor, however good his motives,” which would eliminate proof of malice as an essential element of plaintiff’s case. But in other portions of his charge the trial court made it plain to the jury that under the circumstances of this case the alleged libelous publications must have not only been false but plaintiff must show they were made with malice. While in the foregoing there is obviously some inconsistency, nonetheless plaintiff may not be heard to complain because the departure from the strict letter of the law was favorable to him rather than being prejudicial.
Appellant complains of the following statement in the charge of the court: “I charge you in this connection that if true, and without malice, it would not be libelous. ’ ’ Obviously the error in the quoted statement of which appellant seems to complain is that the word “and” might better have been “or’’. However, here again the error or irregularity was one of which appellant may not complain because the charge as given was more favorable to him than it would have been if stated with technical accuracy. In commenting on another statement of like character in the charge of the court, appellant says:
“This would lead the jury to believe that even a true statement if made with malice or in bad faith is actionable. This, of course, is absurd.”
It is difficult to understand how plaintiff could claim error in consequence of these portions of the court’s charge which were unduly favorable to plaintiff and unfavorable to defendant. Other portions of the charge concerning which appellant complains pertained to the rule of damages in case the jury found in favor of plaintiff. But since the jury found for defendant, it is obvious that plaintiff was not prejudiced by the part of the charge referring to damages, which the jury would have had occasion to consider only in the event plaintiff recovered.
Careful review of the lengthy charge given to the jury brings the conclusion that, notwithstanding there may have been some technical errors and some inconsistent or conflicting statements, nonetheless plaintiff was not prejudiced thereby.
The remaining question presented in appellant’s brief is as follows:
“Did the lower court err in permitting 130 pages of transcript of testimony in another proceeding, including the arguments of counsel on legal points, and the observations of the reporter, to be admitted in evidence over the objection that the same was hearsay?”
It should be noted that appellant’s-objection to its admission in evidence pertains to the whole of such transcript rather than to any particular part thereof. This- transcribed testimony was taken at a hearing before the city commission which involved the removal from office of the Sturgis city manager. The transcript was admitted in evidencte by the trial court on the theory that it was competent and relevant to meet that portion of plaintiff’s case set up in his declaration, which we quote in part:
“March 1, 1944, The Sturgis Daily Journal, Page 2
“ ‘THE DOMIC OPERA TRIAL’
“ ‘On December 8, 1943, the present city commission held a meeting to conduct proceedings for the removal of Raymond J. Greenberg as city manager.
“ ‘The hearing turned out to be a comedy of errors, but the biggest error was the failure of the commission ^o rent the high school auditorium and charge admission. * * *
“ ‘Despite the obvious illegality of the proceedings they were continued and the testimony taken required 130 typewritten pages to transcribe.’ ”
Plaintiff offered and there was received in evidence the publication of defendant’s paper in which the above quoted matter was contained. In meeting this phase of plaintiff’s case, defendant evidently took the position that the publication was justified as a reasonable and truthful description of the manner in which the proceedings progressed before the city commission. It was to sustain his position in this regard that defendant offered in evidence the transcript of the proceedings. It obviously was relevant and competent for that purpose. In view of plaintiff’s pleading and proofs in the particulars just above noted, defendant clearly was justified in putting before the jury the details of the manner in which the hearing before the city commission was conducted. Under very similar circumstances we said in Bostetter v. Kirsch Co., supra (p. 555):
“Defendant was entitled to plead and to prove the facts on which it relied in support of its claim that the article, as published, was true. ” ,
It may be presumed that some portions of the transcript which were received in evidence might have been quite immaterial and irrelevantbut nonetheless that circumstance cannot now be urged in behalf of plaintiff whose objection to the admissibility of the transcript was made only as to the whole thereof. The objection was properly overruled.
On consideration of this appeal we do not find reversible error. From the record as a whole it is a fair inference that as to the major portion of the alleged libelous publications the jury ‘found them true in fact; and as to any other portions that the publications were prompted by proper motives, and not by malice on the part of defendant. If so plaintiff could not recover. The judgment entered in the circuit court is affirmed, with costs to appellee.
Bushnell, C. J., and Sharpe, Boyles, Reid, Dethmers, Butzel, and Carr, JJ., concurred.
“February 29, 1944, The Sturgis Daily Journal, Page 3
“ ‘ Why a Recall Election Now?
“ ‘The question has been ashed — “Why hold a recall election AT THIS TIME? COULDN’T THE SAME PURPOSES BE ACCOMPLISHED AT THE REGULAR CITY ELECTION IN APRIL? ’ ’
‘ ‘ ‘ That’s a fair question and deserves a frank answer. Here are the facts:
“ ‘Four of the five commissioners whose removal is sought would not come up for election this year. Except by recall procedure, they eould not have been removed from their offices until April, 1945. In the regular eity election this clique would have had to win only one commissioner from one of the four wards, or the commissioner at large, to have continued to dominate the eity administration for another year. That is too big a hazard to take. Another year of the present comic opera administration would have had a disastrous effect on public morale. Without doubt it would have entrenched itself as a minor league political machine with many of the characteristics of Mayor Hague’s outfit in New Jersey. * * *
“ ‘The attention of the eity attorney was called to the fact that the eity charter states in very lucid English that no technicalities in a petition shall invalidate a recall election, but that point was ignored as have been many other provisions of the city charter in the past few months. * * *
“ ‘The recall machinery provided by the City charter is the only means that citizens have of removing incompetent and discredited public officials before their terms expire.’ ’’
“March 1, 1944, The Sturgis Daily Journal, Page 2
“ ‘The Comic Opera Trial
‘ ‘ ‘ On December 8, 1943, the present city commission held a meeting to conduct proceedings for the removal of Raymond J. Greenberg as city manager.
“ ‘The hearing turned out to be a comedy of errors, but the biggest error was the failure of the commission to rent the high school auditorium and charge admission. The “trial’’ was like something out of Gilbert and Sullivan. With a few hit times it might have become a smash hit like ‘ ‘ Oklahoma ’ ’. The show would have yielded a tidy sum for the Red Cross or some war activity, to say nothing of the motion picture rights.
‘ ‘ ‘ The city attorney, representing the commission and Mr. Kim Sigler, who had been retained by Mr. Greenberg, had to make up their own rules of procedure. There was no legal precedent covering, procedure and it was admitted by the city attorney that there were no provisions in the city charter authorizing sueh" a hearing. In intent and effect it had no more legality than a Gallup poll. * * *
“ ‘Despite the obvious illegality of the proceedings they were continued „ and the testimony taken required 130 typewritten pages to transcribe. * * *
“ ‘No one contends that the city manager is frozen in his job for life. The city commission has the authority to hire and fire a manager under certain conditions prescribed by the city charter. The present city commission did not observe those conditions.
“ ‘ If there is any merit in the city-manager plan it lies in the very fact that he is free from political pressure. When commissioners begin to interfere with the city manager and go over his head in hiring and firing employees his usefulness is ended and efficiency goes out the window.’ ”
“March 31, 1944, The Sturgis Daily Journal, Page 2
‘ ‘ ‘ Something to Think About
“ ‘Sturgis has a chance to free itself next Monday from a nasty political set-up that threatens the future peace and welfare of this City.’ ”
“April 1, 1944, The Sturgis Daily Journal, Page 3
, “‘Now Let’s'Finish the Job
“ ‘How many other loyal, long-term city employees will be forced to walk the plank to make room for the hangers-on 'of the present administration? * * * ,
“ ‘The present commission has already nullified provisions of the city charter to get control of city jobs for their henchmen. If they are returned to power the charter will be as worthless as a “scrap of paper”.’ ” i | [
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Bushnell, C. J.
Plaintiff Copper Range Company, a Michigan corporation, is engaged in the mining, milling and smelting of copper. Prior to September 20, 1945, it employed 596 men in its mining operations at Painesdale, Michigan, 67 in its mill at Preda, and 83 in its smelter at Coles Creek. These employees are members of the International Union of Mine, Mill and Smelter Workers, C.I.O., United Copper Workers, Local 494. Plaintiff’s relations with its employees are expressed by a written working agreement dated May 10, 1945. Under this agreement, rates of pay are governed by those in effect on September 30, 1942, as modified by a directive order of the nonferrous metals commission, and approved by the economic stabilization director, and a directive order of the national war labor board, dated March 30, 1945. The details of these are unimportant for the purposes of this opinion.
Prior to World War II, plaintiff had ceased operation for some time because of mining conditions which made production unprofitable. The increased need for copper output due to the war caused the government to encourage plaintiff and others owning submarginal mines to resume their operations. Shortly after the declaration of war a ceiling price of 12 cents per pound was placed on copper. Recognizing that some companies could not continue oper-. ations and sell at this price, exceptions were written into the ceiling price law, knowh as the premium price plan, which permitted some producers toibe paid up to 17 cents per pound, depending upon their production cost. Certain other producers,, including plaintiff, were granted still higher prices under sales agreements with governmental agencies. For some time the output of plaintiff’s mine had been purchased by Metals Reserve Company, a governmental agency, at a price fluctuating between, 17 and 26 cents a pound, depending upon cost of production.
This contract was terminated on July 31, 1945, the plaintiff, however, securing an extension to August 31st. Thereafter the company secured a reinstatement of the 17-cent rate and rearranged its operations, but concluded, however, that it could not continue its existing wage scale because of the lower price. Plaintiff then submitted a plan to the bargaining committee of the union, for certain adjustments, and indicated its willingness to place such plan in operation for trial, reserving, however, the right to suspend operations if the plan proved unsuccessful. This proposal was rejected by the members of the union during the last week in August by a vote of 201 to 197. The bargaining committee, under authority granted to it by the union, overrode the votes of the employees and announced to the company an acceptance on behalf of the union. It was deemed advisable to resubmit the matter to the members of the union and, consequently, a notice was posted on the bulletin board containing details of the new plan and stating that it was the very best that could be offered under present circumstances, “and that there is no room for bargaining. In the event the plan is not accepted by the employees, the company will suspend mining operations.”
Another vote was taken on September 16th, and the proposal was again rejected by a vote of 245 to 236. The executive board and the bargaining committee informed the company that it had been deprived of power to conduct further negotiations. On September 18th, the company posted another notice, again explaining the situation in detail, and concluding with the following statement:
“The union by its vote refused the company’s offer, and inasmuch as the company is unable to continue without either price or cost relief, it is forced to suspend operations.
“The company therefore regrets to advise that all production at the mine will cease at the end of the afternoon shift on Thursday, September 20, 1945, and that all operations at the mine, mill and smelter will cease as soon thereafter as clean-up work will permit.”.
In accordance with this notice all production ceased at the end of the afternoon shift on September 20th, although some employees were thereafter retained for maintenance and clean-up work.
On October 9th the employees took a third vote, after which the company was notified by the union that its proposal was accepted. However, by that date, according to the company’s testimony, it was too late to resume operations, a number of men having left the locality, machinery having been removed from the mine, and some of the cargoes of coal coming by water having been cancelled.
The employees, as they were dismissed, then filed claims for unemployment compensation under the terms of the Michigan unemployment compensation act (Act No. 1, Pub. Acts 1936 [Ex. Sess.], as amended (Comp. Laws Supp. 1940, 1945, § 8485-41 et seq., Stat. Ann. 1946 Cum. Supp. § 17.501 et seq.).
The commission determined that claimants were entitled to such benefits because of “no work” and the company appealed from this determination to the referee. At the hearing before the referee on November 19, 1945, it was stipulated on the record that the material facts governing the case of James W. Austin, appellant herein, are substantially identical with the fqcts governing the 538 other claimants, and that such cases were consolidated with the understanding that decision in the Austin case would govern all the others. It was stipulated that the mater should be considered on the sole quesion whether the men had voluntarily left their work without cause attributable to the employer, no labor dispute, lock-put, or strike being involved.
The referee filed an opinion on December 3, 1945, finding that Austin and others were laid off for lack of work, and that section 29, subds. (a) (b) (c) of the unemployment compensation act, as amended by Act No. 246, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8485-69, Stat. Ann. 1946 Cum. Supp. § 17.531), “does not operate to impose any disqualification for benefits on any one of said claimants.” He accordingly affirmed the determination of the commission. The company then filed notice of appeal to the appeal board, which heard the matter on February 20, 1946. Tbe decision of tbe board, filed March 21, 1946, affirmed the determination of the referee, with one member dissenting therefrom. A writ of certiorari was granted by the circuit court of Ingham county on April 1, 1946, and the court filed its opinion on February 25, 1947.
The trial judge held that the vote of October 9th was irrelevant and that the record amply showed why operations could not be resumed. He added that, regardless of this, the matter should be determined by the events which occurred on or before September 20th. His conclusions are stated as follows :
“When the employees rejected the company’s proposal they by their vote affirmatively said not only that they would not accept the company’s proposition, but that they would not abide by the terms of the contract and accept the wages of schedule A. Under this situation, do we need to look only to the fact that the company ceased operations on September 20th? Must we shut our eyes to the cause which impelled the company to make that decision? It is true that work stopped on that date, but the initiating reason was a refusal of the members of the union not only to accent the company’s offer, but to abide by the terms of schedule A which they by their representative had agreed would become effective upon the ending of the government contract. They are responsible for their unemployment, it was voluntary on their part, and the company is not to blame.”
Austin and others took an appeal from a judgment entered on March 15, 1947, which reversed the determination and decision of the appeal board and that of the referee. This judgment states that:
“This determination is based upon the disqualification imposed by section 29 (a) of the Michigan unemployment compensation law, and in view of this determination, this court' does not find it necessary to decide the question as to whether the said claimants are disqualified under section 29 (b) of the Michigan unemployment compensation law.”
Claimant argues on appeal that, under the circumstances of this ease, he has not “left his work voluntarily,” and “without good cause attributable to the employer,” nor has each employee involved herein “failed without good cause * * * to accept suitable work when offered him by any employing unit or the commission.”
Claimants also argue that the findings of fact by the appeal board, and particularly its finding “that the claimants did not leave work voluntarily, but that the direct and actual cause of their unemployment was the appellant’s overt act in shutting down the mine to a point where there was no work for them,” is not contrary to the great weight of the evidence within the meaning of section 38 of the act so as to justify the circuit court in reversing the decision of the appeal board.
Plaintiff-appellee denies the contentions of claimants and argues that “the refusal of the union to accept the reduction in wages or a proposal offered by the mining company in mitigation thereof, following the revocation of the subsidy, constitutes a voluntary leaving of work by members of the union within the meaning of section 29 (a) (1) of the Michigan unemployment compensation act, when the company by reason of such refusal is compelled to suspend operations.”
The unemployment compensation commission argues on appeal that the appeal board, having found as a matter of fact and law “that the actual and direct cause of the unemployment * * * was the overt act of the appellee company in shutting down its mines, and that the appellants did not leave work voluntarily,” and therefore that the circuit court erred when, upon a statutory review of this administrative proceeding by writ of certiorari, it reversed the decision of the appeal board.
The Michigan unemployment compensation act, though comparatively new, has been carefully considered in recent cases, among which are: Godsol v. Unemployment Compensation, Commission, 302 Mich. 652 (142 A. L. R. 910); Lawrence Baking Co. v. Unemployment Compensation Commission, 308 Mich. 198 (154 A. L. R. 660); O’Brian v. Unemployment Compensation Commission, 309 Mich. 18; Auten v. Unemployment Compensation Commission, 310 Mich. 453; and Palmer v. Unemployment Compensation Commission, 310 Mich. 702 (158 A. L. R. 909).
The crux of the controversy in the instant case is whether Austin and others left their work voluntarily without good cause attributable to the employer (section 29 of the act [Comp. Laws Supp. 1945, § 8485-69, Stat. Ann. 1946 Cum. Supp. § 17.531]), and we proceed on the assumption that the provisions of subsection (c) of section 29 with respect to labor disputes are inapplicable.
The scope of the review of questions of fact and law by the circuit court of Ingham county, and on appeal therefrom by this Court, is limited by the provisions of section 38 of the act, as amended by Act No. 364, Pub. Acts 1941 (Comp. Laws Supp. 1945, § 8485-78, Stat. Ann. 1947 Cum. Supp. § 17.540). This section was discussed in the Godsol Case, supra, in which this Court said:
“The purpose of the unemployment compensation act is to relieve the distress of economic insecurity due to unemployment. It was enacted in the interest of public welfare to provide for assistance to the unemployed and as such is entitled to a liberal interpretation.”
In the Lawrence Baking Case, supra, 208, it was said:
“The payment of unemployment benefits is not dependent upon the merits of a labor controversy. ’ ’
Again, in the O’Brian Case, supra, the Court pointed out that common-law principles are inapplicable in the light of the provisions of the act which should be liberally construed to accomplish its purpose.
In the Auten Case, supra, it ’was noted the question there waá one of first impression, and the provisions of the law should be liberally construed.
Plaintiff-appellee in support of its argument that claimants left the employment of the company, cites ample authority on situations involving failure or refusal to return to work after temporary layoffs or discontinuance, though requested by the employer to continue; failure to report for work during the course of labor disputes; or discharge at the request of the union in accordance with the terms of its contract with the employer. None of these conditions exists in the present controversy, and we are not as yet prepared to accept and apply the doctrine of constructive voluntary leaving, particularly in the light of the circumstances of the instant case.
As stated in the opinion of the superior court of Pennsylvania in the case of MacFarland v. Unemployment Compensation Board of Review, 158 Pa. Sup. 418 (45 Atl. 2d 423), as reported in Vol. 6, C. C. H. U. I. S. p. 41511, par. 8131:
“When we say, ‘he left work voluntarily,’ we commonly mean, ‘he left óf his own motion; he was not discharged.’ ”
According to the facts in the instant case, Austin and others continued in their employment until operations were suspended, as stated in the company’s posted notice, “at the end of the afternoon shift on Thursday, September 20, 1945.”
We are mindful of the economic facts which confronted the-company, such as submarginal productivity, termination of the government contract, and the unsuccessful attempts to co-operate with claimants. We aré also mindful that the company’s operations had been profitable for a. considerable period, and that economic gain is often followed by economic loss.
It is.probably sufficient to note that the declared policy of the act is to lighten the burden of economic insecurity due to involuntary unemployment, and that the act, according to its terms, is designed to accomplish:
“The systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment by the setting aside of um employment reserves to be used for the benefit of persons unemployed through no fault of their own, thus maintaining purchasing power and limiting the serious social consequences of relief assistance, is for the public good, and the general welfare of the people of this State.” (Act No. 1, § 2, Pub. Acts 1936 [Ex. Sess.] [Comp. Laws Supp. 1940, § 8485-42, Stat. Ann. 1947 Cum. Supp. § 17.502]).
In the face of this legislative declaration of policy, courts are without power to deprive those entitled thereto of the benefits of the act, unless they are expressly precluded therefrom by its provisions.
To place the stamp of judicial approval upon the contentions of appellee in the instant case would be tantamount to the issuance of a notice to all employers in Michigan that, whenever they are confronted with economic loss, they can demand an abrogation of their working agreements and reduce compensation to a point unacceptable to employees, and thereby absolve themselves of the responsibilities imposed upon them by the unemployment compensation act.
We are also mindful of the implications of our decision in the instant case and its possible application to conditions yet unforeseen. However, careful review of the record presented requires agreement on our part with the conclusion reached by the appeal board that:
“In addition to the referee’s findings and observations, it is clear to us that the appellant made an offer to the workers through their union, which was their legally designated bargaining agent for all the employees, with a statement that if the offer was not accepted the company would shut down all operations. When the union failed to comply, the-appellant in conformity with its previously announced intention, shut down all operations, notwithstanding the fact that the workers continued with their work until the mine was actually shut down by the appellant. Under these circumstances, it is obvious that the claimants did not leave work voluntarily but that the direct and actual cause of their unemployment was the appellant’s overt act .in shutting down the mine to a point where there was no work for them.
“ Since the record definitely establishes that the claimants worked until such time as there was no longer any work available, we do not see how it can possibly be found that they voluntarily left work. The appellant, by its own precipitate action in shutting down the mine terminated the employer-employee relationship and thus deprived the claimants of an opportunity to continue in employment. We therefore find that the referee’s decision, find ing that the separation of the claimants was involuntary and not under disqualifying circumstances, is supported by the great weight of the evidence and should not be disturbed. ’ ’
Plaintiff-appellee argues with respect to section 29 (b):
“A second though related basis for disqualifying the claimants may be predicated entirely upon section 29 (b) of the unemployment compensation act since the claimants by refusing the offer of continued employment may be considered to have refused without good cause a suitable offer of work with the resultant disqualification provided for in section 29 (b).”
The same reasoning applies to this argument with respect to section 29 (b) as that applied to section 29 (a).
The judgment of the circuit court is reversed and the case is remanded with direction to enter a judgment in accordance with this opinion. Costs of both courts to appellants.
Sharpe, Boyles, Reid, North, Butzel, and Carr, JJ., concurred. Dethmers, J., did not sit. | [
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Sharpe, J.
In September, 1926, John Suminski and Bertha Suminski, his. wife, were the owners of two adjoining parcels of real estate described as lots Nos. 297 and 298 of the Smart Farm subdivision located in Detroit, Michigan. The Suminskis built a house on each lot and constructed a cement driveway between the two buildings four feet of which was on each lot.
On September 20, 1926, the Suminskis sold lot No. 297 to Edward Brudczynski and Filomena Brudczynski, his wife. In 1928 the Brudczynskis sold their lot to Frank Gorczyca and Anna Gorczyca, his wife. Frank Gorczyca died and the title to the lot vested in Ajina Gorczyca, whose name is now Anna G. 'Wasilewski, plaintiff in this case.
Lot No. 298 was sold by the Suminskis to Arthur W. Schlisinger and Adele Schlisinger, his wife, on October 6, 1927. Through foreclosure of a mortgage, title to lot No. 298 became vested in the French Mortgage & Bond Company which entered into a land contract with defendants, Frank Kowal and Bernice Kowal, his wife, for the sale of the property. The contract was dated July 2, 1936. The defendants stopped using the driveway in 1942; and in 1943 Frank Kowal informed plaintiff that he was going to close the driveway.
In April, 1944, plaintiff began the present suit in which she claims that by reason of the continuous, open, notorious and adverse use of the driveway, said driveway has become a community driveway and she has acquired an easement by prescription to drive over the land of defendants; and that this easement has existed for more than 15 years.
The cause came on for trial and the trial court filed an opinion in which he stated it was the intention of the original builder “that the driveway between the two adjoining lots was a mutual driveway and that the mutual use of said driveway was a part of the consideration for the purchase;” that “plaintiff and her predecessor in title have used this mutual driveway from 1926 to 1942 * * * with the consent and acquiescence of the defendants and their predecessors in title;” and held that a mutual easement was established by prescription.
A decree in conformity with his opinion was entered. Defendants appeal and urge that the use of, a mutual driveway by adjoining owners over a long period of time cannot ripen into an easement by prescription since the use of such driveway is permissive and not adverse.
Plaintiff urges that where a mutual or common drive has been used continuously, openly, visibly and adversely for more than 15 years, an easement by prescription has been established. She relies upon St. Cecelia Society v. Universal Car & Service Co., 213 Mich. 569.
The facts in the St. Cecelia Case are that plaintiff claimed title to a strip of land 6.81 feet in width adjoining its club house and went into possession of the same in 1894. Such use was continuous for a period of more than 15 years. Plaintiff claimed title by adverse possession. We there said:
“We are unable to find that the plaintiff has had such adverse possession of this property as would-entitle it to absolute ownership in fee with the right to fence the same and occupy it for any and all purposes to the exclusion of the defendants; but we do think that it has an easement by prescription, in the nature of an appurtenant easement attached to the premises of the plaintiff.”
In the case at bar there is no claim of adverse possession. Plaintiff testified:
“Q. But during the time you lived there you knew that four feet of the land belonged to the neighbor and four feet belonged to you, and each of you permitted that four feet to be used merely as a driveway, isn’t that right?
“A. Yes.”
It is obvious that the use of the driveway was permissive. In Stewart v. Hunt, 303 Mich. 161, we said:
“If defendant’s right to the way rests on permission, such permission may be withdrawn at any time, however long continued.”
In Worden v. Assiff, 317 Mich. 436, we held that the mutual use by occupants of adjoining city lots of a gravel driveway in part on each of the two lots, which use was consented to, was not adverse or hostile and did not ripen into a prescriptive easement. We quoted with approval from Wilkinson v. Hutzel (syllabi), 142 Mich. 674:
“A driveway established by the owners of adjoining lots for mutual convenience, one half of the driveway being on each lot, is not a way of necessity, but a license revocable by either party.
“Where the owners of adjoining lots for mutual convenience established a driveway between the same, one half thereof being on each lot, their acquiescence for a long term of years in such mutual user of the way did not create title in and to the land of the other in either party; there being nothing-hostile or adverse in such user.”
In view of the fact that the use of the driveway was permissive during the period of joint use of same, we hold that such permissive use did not ripen into an easement by prescription.
The decree of the trial court is reversed and plaintiff’s bill of complaint dismissed. A decree will be entered in the Supreme Court accordingly. Defendants may recover costs.
Bushnell, C. J., and Boyles, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Dethmers, J.
Roy and Floyd Denoyer, doing business as Denoyer Brothers, hereinafter called defendants, made application to the Michigan public service commission for a certificate of public convenience and necessity to engage in the transportation of household goods to any point in Michigan from Traverse City or immediate vicinity. The commission gave notice of the application, its contents and date of hearing thereon to the common motor carriers operating in the territory proposed to be served. At the hearing one of the defendants was sworn as a witness and stated that the authority sought was to transport household goods from Traverse City and immediate vicinity to various Michigan points.
H. H. Hardy, secretary of the General Tariff Bureau, Inc., of which common motor carriers are members, entered his appearance before the commission for the Bureau and for Clyde Kirkby and Cadillac Storage & Transfer Company, the latter two being common motor carriers. At the hearing Kirkby and Charles J. Foster, owner of Cadillac Storage & Transfer Company, appeared personally and testified in opposition to the application.
After the hearing, the commission entered an order granting defendants an original common carrier restricted certificate authorizing transportation of household goods between Traverse City and points within a 20-mile radius thereof and various Michigan points. Plaintiffs thereupon brought this chancery action in the Ingham circuit court for the purpose of obtaining review of the commission’s order under Act No. 254, art. 5, § 20, Pub. Acts 1933, as amended by Act No. 244, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 11352-55, Stat. Ann. 1947 Cum. Supp. § 22.585). From a decree of the circuit court affirming the order of the commission plaintiffs appeal. The commission has taken a cross appeal from denial of its motion, before hearing on the merits, to dismiss plaintiffs’ bill of complaint.
The substance of the commission’s motion and cross appeal is that the General Tariff Bureau, Inc., is not a proper party plaintiff because it is not a common motor carrier and therefore had no direct interest in defendants’ application and, further, that because H. H. Hardy is not an attorney at law his appearance for th¿ other plaintiffs constituted illegal practice of law and was, therefore, void, with the result that, having no appearance entered, said plaintiffs were not parties to the proceedings before the commission and, consequently, not proper parties plaintiff in this suit. Article 2, § 4 of said Act No. 254 provides that any interested party may appear before the commission to offer testimony and cross-examine witnesses at the hearing upon application for certificate. The Bureau being composed of a membership of common motor carriers could very conceivably be such an interested party. Clyde T. Kirkby was a common motor carrier interested in the outcome of the proceedings before the commission. He was present and testified in opposition to the application. The same may be said for Charles' J. Foster, who, until a few days after the hearing, was doing business as Cadillac Storage & Transfer Company. This business he sold, before this suit was instituted, to Roy Hewitt and Earl Hewitt, who thereafter continued in business as the Cadillac Storage & Transfer Company and who, by order of the trial court, were permitted to intervene as parties plaintiff. Under said section 4 Kirkby and the Bureau are proper parties plaintiff. The Hewitts were properly permitted to intervene as plaintiffs.
The plaintiffs raise the question whether the commission may enter an order granting defendants authority beyond that sought in their application or stated in the notice thereof to other carriers or requested by defendants at the hearing.
The commission has only such powers as are conferred upon it by statute. Grand Rapids & I. R. Co. v. Michigan Railroad Commission, 183 Mich. 383; Sparta Foundry Co. v. Michigan Public Utilities Commission, 275 Mich. 562. Such authority as the commission has in the premises is to be found in said Act No. 254, Pub. Acts 1933, as amended. The material sections thereof read in part as follows:
“Article II. Sec. 2. The commission is hereby vested with power and authority and it is hereby made its duty upon the filing of an application for a certificate of public convenience and necessity to ascertain and determine under such reasonable rules and regulations as it may promulgate, after considering all existing motor vehicle transportation facilities and the demand for or need of additional service, whether there exists a-public necessity for such service and whether public convenience will be promoted by granting said application and permitting the operating of motor vehicles on the highways pursuant to such application as a common motor carrier of persons or property. * * *
“Sec. 4. Upon the filing of an application for a certificate of public convenience and necessity to operate as a common motor carrier, the commission shall fix a time and place for hearing thereon and shall cause notice of the filing of such application and the hearing thereon to be given by mail not less than ten days, exclusive of the date of mailing, before such hearing, addressed to an officer or owner of every common motor carrier that is operating in the territory proposed to be served by the applicant. # # #
“Sec. 5. * * * Said application may be granted, in whole or in part, and a certificate issued upon such lawful terms and conditions as said commission may impose, and subject to such rules and regulations as it has or may hereafter lawfully prescribe, for the whole or for only the partial exercise of the privilege sought.”
Under said section 2 the power of the commission to grant a certificate of public convenience and necessity is made dependent upon the filing of an application therefor. It is a corollary that the extent of the authority granted under such certificate must depend upon and may not exceed what is sought by the application.
Said section 2 requires the commission to consider “all existing motor vehicle transportation facilities,” and section 5 provides “if the commission shall determine after hearing that the service rendered by existing motor vehicle transportation facilities or agencies is reasonably adequate * * * said application shall be denied, and a certificate refused.” The notice of application and hearing thereon, required by section 4 of the act to be given to all common motor carriers operating in the territory proposed to be served by the applicant, serves to place such carriers on notice and affords them an opportunity to urge upon the commission the adequacy of service rendered by existing motor-vehicle transportation facilities and thus, or otherwise, to oppose the application. The application, notice, and defendant’s statement at the hearing that the only authority sought was for transportation from Traverse City and vicinity, all combined to throw the plaintiffs and other common carriers off guard by indicating that there was no occasion for them to make a showing that the service rendered by existing facilities for transportation of household goods from points in Michigan to Traverse City was reasonably adequate and that public convenience would not be promoted by granting authority therefor to defendants. Thus was the very purpose of the notice and of the hearing itself subverted. In point is the case of Erie R. Co. v. Public Utilities Commission of Ohio, 128 Ohio St. 472 (191 N. E. 782), in which the court, in reversing an order of the commission for not following a provision of the Ohio statute requiring notice, said:
“The public utilities commission did not-comply with the provisions of section 614 — 91, General Code, by giving the Baltimore & Ohio Railroad Company, operating in the territory through which the applicant for a certificate of convenience and necessity proposes to operate, at least ten days’ notice of the hearing upon such application (Buckeye Stages, Inc., v. Public Utilities Commission of Ohio, 127 Ohio St. 575 [190 N. E. 219]), and the failure of the public-utilities commission to give the statutory notice was not waived by the fact that the Baltimore & Ohio Railroad Company had knowledge of the filing and pendency of an application for a certificate prior to the decision of the commission thereon, especially since the order which the commission finally granted exceeded the terns of the request contained in the application originally filed.”
Cited is Miller v. Tarry (Tex. Civ. App. 1946), 191 S. W. (2d) 501, as authority that the commission may grant a greater privilege than that sought by applicant. That question, although discussed, was not actually before the court because it found that the application was fully as broad as the authority granted. Defendants also cite Chicago, St. P., M. & O. R. Co. v. United States, 322 U. S. 1 (64 Sup. Ct. 842, 88 L. Ed. 1093), and McCracken v. United States, 47 Fed. Supp. 444. These cases must be considered in the light of the pertinent provisions of the interstate commerce act. 49 USCA, § 308(a), 10A FCA, title 49, § 308a, provides in part:
“There shall, at the time of issuance and from time to time thereáfter, he attached to the exercise of the privileges granted by the certificate such reasonable terms, conditions, and limitations as the public convenience and necessity may from time to time require, including terms, conditions, and limitations as to the extension of the route or routes of the carrier.”
Under this provision of the congressional act the interstate commerce commission is held to have the express power to attach to the authority conferred by its certificate terms or conditions requiring the extension of the carrier’s routes beyond those sought in its application. Defendants contend that like authority is conferred upon the Michigan public utilities commission by the above quoted language from section 5 of the Michigan act. It is to be noted, however, that while the Federal act expressly empowers the Federal commission to attach terms and conditions relating to the extension of routes, the Michigan act, on the other hand, makes no such provision, but permits the issuance of a certificate upon only such lawful terms and conditions as the commission may impose “for the whole or for only the partial exercise of the privileges sought.” Whatever terms and conditions, incidental to and within the scope of the authority sought in the application, may be imposed under this language of the act, it cannot be read to authorize the commission to issue a certificate for the whole or partial exercise of the privilege sought upon the so-called terms and conditions that applicant accept and exercise additional privileges, not sought by applicant, substantially as great as the one sought.
Deeming the order of the commission void for these reasons, we need not consider other questions raised by plaintiffs. A decree may enter in this Court reversing the decree of the trial court, bolding the order of tbe Michigan public service commission void, and providing for a permanent injunction restraining the defendants from engaging in any operations under said order and tbe commission from permitting the same. Costs to plaintiffs.
Bushnell, C. J., and Sharpe, Boyles, Reid. NortP,, Butzel, and Carr, JJ., concurred.
See Comp. Laws Supp. 1940, 1945, § 11352-1 et seq., Stat. Ann. and Stat. Ann. 1945 Cum. Supp. § 22.531 et seq. | [
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Butzel, J.
-Plaintiff appeals from an order of the circuit court of Wayne county affirming an order of the liquor control commission revoking his class "C" license to sell beer, wine and spirits on the premises located at 19548 Schoenherr road, Detroit, Michigan.
Plaintiff was charged with the following.:
“That the subject licensee made false and fraudulent statements to the commission for the purpose of having a transfer of ownership of a class 'C' license, the subject licensee, transferred to his name, representing himself as the sole owner, whereas in truth and in fact, Peter Pirozzini was an equal owner in violation of Act No. 8, § 45, Pub. Acts 1933 (Ex. Sess.), as amended.
"Subject licensee made false and fraudulent statements in the 1946 application for renewal of class 'C' license wherein he represented himself as the sole owner whereas in truth and in fact Peter Pirozzini was an equal owner in the licensed establishment in violation of Act No. 8, § 45, Pub. Acts 1933 (Ex. Sess.), as amended.
"That the subject licensee.did obtain the original license in 1940 and did obtain renewal licenses in 1941-1942-1943-1944 and 1945 and 1946 in his name for the use and benefit of Peter Pirozzini, whose name does not appear on the license in violation of section 29 of the ipiles and regulations of the. liquor control commission governing retail licensees selling alcoholic beverages for consumption on the prémises as appears on page 435 of the Michigan Administrative Code for 1944."
A hearing was held on January 16, 1947, before Commissioner Flynn and on March 3, 1947, an order was entered by Commissioner Flynn revoking plaintiff’s license. - Plaintiff requested a hearing before the Michigan liquor control commission and on March 27, 1947, the commission affirmed the order of revocation effective April 18, 1947. On April 29, 1947, plaintiff filed a petition, for certiorari in the circuit court of Wayne county. On July 11, 1947, the circuit court affirmed the order of the liquor commission. Plaintiff has appealed to the Supreme Court.
The right of review of a holding of the liquor control commission in a proceeding to revoke a license is limited to certiorari. See Fox v. Liquor Control Commission, 319 Mich. 347.
Plaintiff testified that he purchased the liquor business from Peter Pirozzini on September 12, 1940, under a contract for a consideration of $2,500; and that he hired Pirozzini to work for him and to be paid by an equal division of the net profits of the business. However, there was evidence that plaintiff, Seally, and Pirozzini filed individual income tax returns and each reported under the column “income or loss from partnerships’’ income received by each as his share of the profits from the liquor business; that insurance policies were taken out in the name of Seally and Pirozzini; that Pirozzini had a five-year lease of the premises that was not transferred to plaintiff, nor did plaintiff notify the lessor named in the lease that he, plaintiff, had taken over the lease; that plaintiff is in the trucking business and has never spent much time in the establishment; and that Pirozzini has always supervised the operation of the business.
On certiorari there is review of questions of law only. We only review the evidence to determine if there is competent evidence to justify the conclusions reached. See Case v. Liquor Control Commission, 314 Mich. 632.
The liquor control act, Act No. 8, § 20, Pub. Acts 1933 (Ex. Sess.), as last amended by Act No. 133, Pub. Acts 1945 (Comp. Laws Supp. 1945, § 9209-35, Stat. Ann. 1947 Cum. Supp. § 18.991), authorizes the commission or any designated commissioner to revokes license “upon a violation of any of the provisions of this act or any of the rules and regulations adopted by the commission hereunder.”
Plaintiff was charged with a violation of Act No. 8, §45, Pub. Acts 1933 (Ex. Sess.) (Comp. Laws Supp. 1940, § 9209-60, Stat. Ann. §18.1016):
“Any person who shall-make any statement either' orally or in writing to the' commission for the purpose of inducing the commission to act or for the purpose of inducing the commission to refrain from taking action, which statement is false or fraudulent, and any person who makes a false or fraudulent statement for the purpose of enabling or assisting any person to evade the provisions of this act, shall be guilty of a violation of this act.”
A review of the evidence convinces us that the commissioner who revoked the license and the commission in ratifying such action had competent evidence to support the conclusion that plaintiff in making an application for a license concealed 'the fact that he was in partnership with Pirozzini.
The holding of the circuit court affirming cancellation by the liquor control commission of the license issued to plaintiff and dismissing the certiorari proceedings is affirmed, with costs to appellee.
Bushnell, C. J., ‘ and Sharpe, Boyles, Reid, North, DethImers, and. Carr, JJ., concurred.
See Act No. 8, § 20, Pub. Acts 1933 (Ex. Sess.), as amended by Act No. 133, Pub. Acts 1945 (Comp. Laws Supp. 1945, § 9209-35, Stat. Ann. 1947 Cum. Supp. §18.991).—Reporter. | [
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Boyles, J.
Plaintiff appeals in the nature of certiorari on leave g’ranted, from an award of compensation to him by the workmen’s compensation commission. The substance of plaintiff’s claim is that he should have been awarded more compensation. Plaintiff, an employee of the defendant Continental Motors Corporation, filed a claim with the department of labor and industry for compensation for an occupational disease (dermatitis) arising out of and in the course of his employment. At a hearing, the deputy commissioner found that the employee’s weekly wage before the time of the injury was $111.38; that he was entitled to receive compensation at the rate of $21 per week for total disability from May 28, 1946; to September 8, 1946, and from September 17, 1946, to September 25, 1946; and that the plaintiff’s'loss of wages after September 25th was not due to .the injury of May 28, 1946. From that award, the plaintiff made application for review before the commission, his sole ground being stated as follows:
“This claim foi review is based on the following grounds:
“The award of the deputy commissioner is contrary both to the facts and to the law.”
On the review before the commission, the defendant stated the question involved was: ‘ ‘ Did plaintiff receive a personal injury on May 28, 1946, resulting in any loss of wages after September 25, 1946?” and insisted that the deputy had correctly answered this question “No.”
On said review, the findings of the commission .affirmed the award of the deputy for compensation up to September 25, 1946, but added compensation also, from- and after that date. In so far as they involve the questions now before us for decision, the findings were as follows:
“The defendant, Continental Motors Corporation has paid the compensation awarded by the deputy commissioner and the only question before us is whether or not the plaintiff’s dermatitis arising out of and in the course of his employment by the Continental Motors Corporation has caused him any disability since September 25, 1946. The record is very clear that the plaintiff was transferred from his job in the block department to the inspection job for the specific reason that the defendant’s doctors recommended that this be done because of the plaintiff’s dermatitis. The- inspection job was and is a lower paying job than the block job and there is, therefore, no question but that the plaintiff has suffered a loss in earnings because of his occupational disease. - * * * Wé find that the plaintiff is entitled to further and continuing compensation for partial disability for the specific reason that his occupational disease has caused him to be taken, on his employer’s orders, from a higher paying job to a lower paying job and that his handicap due to his dermatitis is still continuing.
“The plaintiff’s regular work week at the Continental Motors Corporation was 48 hours a week with time and a half pay for all hours worked over 40. His hourly rate on the block job was $1.5795. For the regular 48-hour week he received $82.13. When he was placed on the inspection job on September 26, 1946 he was paid an hourly rate of $1,125 or a 48-hour weekly wage of $58.50. He thereafter received an hourly raise of 5‡ an hour every month until March of 1947 so that his weekly wage from October 28 to November 25, 1946 was $61.10 a week; from November 25, 1946 to December 23, 1946, $63.70 a week; from December 23, 1946 to January 20, 1947, $66.30 a week; from January 20, 1947 to February 17, 1947, $68.90 a week; from February 17, 1947 to March 17, 1947, $71.50 a week and from March 17, 1947 and up to and through the date of the hearing before Deputy Commissioner McGinty, $74.10 per week.”
The commission then further found that plaintiff was entitled to compensation “at the rate of $15.75 per week from September 26 to October 28, 1946; at tbe rate of $14.06 per week from October 28 to November 25, 1946; at tbe rate of $12.29 per week from November 25 to December 23, 1946; at tbe rate of $10.55 per week from December 23, 1946 to January 20, 1947; at tbe rate of $8.82 per week from January 20, 1947 to February 17, 1947; at tbe rate of $7.09 per week from February 17, 1947 to March 17, 1947, and at- tbe rate of $5.35 per week from March 17, 1947 and until tbe further order of tbe commission.”
From an order awarding compensation in accordance with tbe foregoing findings, tbe plaintiff, on leave granted, appeals to this Court. Tbe questions raised, by appellant for review here are as follows :
“(1) May tbe compensation commission make a finding contrary to tbe stipulation of tbe parties ?
“(2) May tbe compensation commission inject issues into a case which have not been raised by tbe parties themselves ?
“(3) Is there any evidence to support tbe finding of tbe compensation commission that tbe plaintiff's wages were $82.13?”
(1) Tbe stipulation.
At tbe bearing before tbe deputy, Mr. Marcus appeared for tbe plaintiff, and Mr. Eiley for tbe defendant. Material to tbe issues here involved, tbe following occurred:
“The Commissioner: I will call tbe case of Everett E. Thompson v. Continental Motors Corporation. * * * May it be stipulated both tbe employer and employee were subject to tbe compensation law?
“Mr. Riley: Yes. * * *
“The- Commissioner: Tbat injured’s exact daily and weekly wages at tbe time of tbe personal injury were?
“Mr. Riley: Tbe last full two-week period, $222.76.
“Mr. Marcus: $111.38, is tbat about wbat you were making?
“Mr. Thompson:. Yes, it is:
“Mr. Marcus: We will accept balf of tbat as bis weekly wage.
“The Commissioner: $111.38?
, “Mr. Marcus: $111.38.”
Plaintiff claims tbat tbis is a binding stipulation of fact, tbat tbe average weekly wage of tbe plaintiff -before tbe time of tbe injury was thereby fixed with finality and not subject to change by tbe commission on review. It is quite apparent tbat this was a statement of fact, agreed to by both parties, and made a part of the record before tbe deputy, tbat plaintiff’s wages for tbe last two weeks be worked up to tbe time of tbe injury (May 28, 1946) were $222.76, and tbat balf of that amount, $111.38, was bis weekly wage.
Conceding that said -statement of weekly wages agreed to before tbe deputy should be considered as a stipulation of fact, it is not under all circumstances necessarily final and binding on review by tbe commission. Under some circumstances tbe door would be open to the commission to make a finding of facts.
‘ ‘ Tbe review from tbe award of a deputy commissioner is a de novo bearing. Margenovitch v. Newport Mining Co., 213 Mich. 272. Tbe department on review was not bound by an admission or stipulation erroneously made by defendant’s counsel when tbe error was so palpable as shown by tbe written document in tbe files of tbe department and attention was promptly called to tbe error. As a rule, parties are bound by tbeir stipulations, but the courts will not permit a mistake to remain uncorrected when the opposite party has not been misled, a delay has not been suffered thereby, and documentary evidence of the mistake appears in the files, and record before the court.” Basner v. Defoe Shipbuilding Co., 319 Mich. 67, 72.
However, Mr. Justice Butzel, writing for the Court in the Basner Case, supra, then proceeded to recognize certain exceptions to the above rule, as follows:
“Were this a stipulation in regard to the opinion of a medical examination (Napolion v. National Concrete Metal Forms Corp., 279 Mich. 668), or as to the amount of a weekly wage (Moninger v. Germania Building & Loan Assn., 305 Mich. 303), on in regard to notice and knowledge of an alleged accident (Cundiff v. Chrysler Corp., 293 Mich. 404), the parties would be bound thereby.”
In Moninger v. Germania Building & Loan Assn., 305 Mich. 303, above cited, the department fixed a weekly wage in an amount different than that stipulated by the parties. We held:
“In reaching the above conclusion the department sought .to apply the provisions of the workmen’s compensation act found in 2 Comp. Laws 1929, § 8427 (Stat. Ann. §17.161). But by the words of the statute the provisions which the department followed are applicable only: ‘In cases where it is impossible to ascertain the exact daily wage’ of the employee. In the instant case plaintiff’s average weekly wage was stipulated, and his daily wage under the statute would be one-sixth of the weekly amount. When the amount of the employee’s earnings are disclosed by the record, resort may not be had to the statutory formula for the purpose of fixing the earnings in a different amount. By resort to the statutory formula, in stead of following the stipulated facts, the department awarded compensation at the rate of $18 per week notwithstanding plaintiff’s average weekly wages earned in defendant’s employ were only $17.57. Such an award is in clear violation of the basic statutory provision fixing the maximum rate of compensation” (citing and quoting the statute as then in effect. [2 Comp. Laws 1929, §8425] The amendment by Act No. 245, Pub. Acts 1943 [Comp. Laws Supp. 1945, § 8425, Stat. Ann. 1947 Cum. Supp. § 17-159], merely bears on the amount.)
(2) Did the commission “inject issues into a case which have not been raised by the parties themselves?”
There is testimony to support the commission’s finding that plaintiff’s injury resulted in loss of wages after September 25th. The appellant, in seeking review by the commission of the deputy’s award, did not limit the issue before the commission solely to the question of plaintiff’s weekly wage before the time of the injury, May 28, 1946, but opened the door wide to a general review. Appellant’s claim for' review stated that it was based on the ground that the award of the deputy was “contrary both to the facts and to the law.”- Appellant cannot now rely on the stipulation, to close the door to further inquiry before the commission, as to the facts or the law, concerning the weekly wage of plaintiff before the time of the injury.
(3) The issue then narrows down to whether there is testimony in the record to support the finding of the commission, that plaintiff’s average weekly wage before the timé of the injury, May 28, 1946, was $82.13. The applicable statute concerning weekly wages is as follows:
“While the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee a weekly compensation equal to 66 2/3 per centum .of the difference between his average weekly wages befo he the injury and the average weekly wages which he is able to earn thereafter, but not more than $21 a week.” 2 Comp. Laws 1929, § 8426, as amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, §8426, Stat. Ann. 1947 Cum. Supp. §17.160).
‘ ‘ The weekly loss in wages referred to in this act shall consist of such percentage of the average weekly earnings of the injured employee computed according to the provisions of this section as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the injury, the same to be fixed as of the time of the injury, but to be determined in view of the nature and extent of the injury: Provided, the compensation payable, when added to his wage-earning capacity after the injury in the same or another employment, shall not exceed his average weekly earnings at the time of such injury.
‘ ‘ The term ‘ average weekly wage, ’ as used in this act, is defined to be the weekly wage earned by the employee at the time of his injury but in no case less than 40 times his hourly rate of wage or earning.” 2 Comp. Laws 1929, §8427, as amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, §.8427, Stat. Ann. 1947 Cum. Supp. § 17.161).
The plaintiff stopped working for the defendant May 27, 1946, and did not return to work until in September, for which period of time he has been paid compensation' for total disability. In the record we find ample testimony to establish the average weekly wage that the plaintiff was able to earn when he returned to work for the defendant in September, 1946. No question is now raised as to the correctness of the finding by the commission in that regard. The issue here is in regard to the finding by the commission that plaintiff’s average weekly wage before the time of the injury, May 28, 1946, was $82.13, and not the $111.38 found by the deputy.
The record before us is entirely barren of any proof as to how many hours per day or per week plaintiff was working for the defendant before the time of the injury, May 28, 1946. There is no testimony as to whether he put in overtime, or at overtime wages, or whether he received any bonus or additional pay. The sole testimony in the record having any possible bearing on the issue is a statement by the assistant secretary of the defendant who was in charge of compensation claims, as follows:
“Mr. Faust: The following are the wage rates of Everett R. Thompson as at the following dates. May 28, 1946, last days at work, $1.5795 per hour.”
We are unable to find in this record any support for the finding of the commission, as applied to plaintiff’s work week before the injury:
“The plaintiff’s regular work week at the Continental Motors Corporation was 48 hours a week with time and a half pay for all hours worked over 40.”
Except in regard to the hourly rate briefly referred to by witness Faust, there is no other testimony that refers to plaintiff’s weekly wage before May 28, 1946.
On the sole basis of the hourly rate, the commission cpmputed plaintiff’s weekly pay before the injury, May 28th, at the sum of $82.13, by using the hourly rate of $1.5795. This was contrary to the statute. Moninger v. Germania Building & Loan Assn., supra. The weekly wage of/the plaintiff before the time of the injury should have been considered to be $111.38, in accordance with the stipulation, there being no testimony to the contrary.
Inasmuch as plaintiff’s compensation for partial disability, found by the commission, beginning September 26,1946, is fixed by statute at 66 2/3 per cent, of the difference between his weekly wage before May 28, 1946, and the weekly wage which he was able to earn thereafter, it follows that the computation of the compensation plaintiff was entitled to after September 26, 1946, was too low. The case is remanded to the department for a redetermination of such compensation and /he entry of an award in accordance with this opinion, otherwise the award of the commission is affirmed. Plaintiff may have costs of this appeal.
Btjshnell, C. J., and Sharpe, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Sharpe, J.
This case involves two appeals from a judgment of the circp.it court affirming orders of the probate court of Kent county, one in the estate of Catharine A. Peck and one in the estate of Percy S. Peck. The appealing party.is Joseph Berkson, whose claims were denied in the probate court of Kent county and on appeal to the circuit court of Kent county were again denied.
The facts in these cases, consolidated on appeal, are as follows: Catharine A. Peck died February 21, 1927, leaving a will containing many bequests. The will designated the Michigan Trust Company of Grand Rapids and her nephew, Percy S. Peck, as coexecutors. The residuary estate was divided into two parts and the twelfth paragraph of the will provided that one half of the residuary estate was devised and bequeathed:
“To The Michigan Trust Company and Percy S. Peek, in trust; to hold, invest and reinvest the same, with all the powers specified in paragraph second,- and to pay the net income thereof to my said nephew, Percy S. Peck, at least as often as quarter-annually in each year, for and during the term of his natural life; and at his death the principal of said fund shall go and be disposed of as he, my said nephew, may, by his last will and testament, ap7 point; and, in default of such appointment, I give, devise and bequeath the same to his issue; — to have and to hold the 'same to them respectively, and to their respective heirs, representatives and assigns— forever; and in case no issue of my said nephew Percy shall be living at his death, then to my niece.”
The Michigan Trust Company and Percy S. Peck qualified as trustees under the will. In February, 1934, the three children of Percy B. Peck filed suit against him and the Michigan Trust Company, charging diversion of the trust funds. The rights and duties of the two trustees under the will in question were discussed and passed upon by the Michigan Supreme Court in the case of Roberts v. Michigan Trust Co., 273 Mich. 91.
On June 7, 1935, Percy S. Peck filed a voluntary petition in bankruptcy, in which he listed his interest in the trust in question, and other trusts, as fob lows:
“Debtor has interests in certain trust assets as a spendthrift beneficiary according to the instrument creating the same but which may not be anticipated and are immune from creditors and not subject to assignment. Value none.”
On January 15, 1937, the trustee in bankruptcy sold at auction for $2,005 to the claimant, Joseph Berkson, who was not a creditor but an outside purchaser the following assets of the bankrupt estate of Percy S. Peck:
“All of my right, title and interest as trustee of the estate of said bankrupt, and the right, title and interest of the bankrupt, if any, in a certain trust created by the will of Catharine A. Peck, deceased, which will was duly admitted to probate in the probate court for the county of Kent, under file No. 43101, and all of my right, title and interest as trustee and the right, title and interest of said bankrupt, if any, in and to a certain trust created by a trust agreement dated June 4, 1913, between Catharine A. Peck and Thomas M. Peck, running to the Michigan Trust Company as trustee; without warranty of title, however:”
On December 15, 1942, Percy S. Peck renounced under oath the power of appointment given under the will of Catharine A. Peck, which instrument was filed with the probate court and reads as follows:
“I, Percy Seaman Peck, do hereby file with the probate courhof Grand Rapids, Kent county, Michigan, this statement by me made, renouncing and foreswearing all, any and every, power of appointment given me by the provision of the will of my deceased aunt, Catharine A. Peck, as it is my understanding and belief, that she, the aforesaid Catharine A. Peck, wished and willed, that, all such properties and securities, of any nature whatsoever, held in trust by the Michigan Trust Company, in a. trust fund, now known as trust fund, No. 4,184 pass, at my death, directly and equally to my three daughters, namely Catherine Peck Roberts, Yirginia Peck Apted and Florence Peck Watson, all living in Grand Rapids, Michigan or Kent county, Michigan. This paper to be held in file for me until my death or until such radical changes in the Federal or State laws, or deaths in my family would deem it advisable that I should withdraw it.”
On September 13, 1944, Percy S. Peck died, leaving a will dated December 21, 1942, which expressly confirmed his renunciation of the power of appointment conferred on him by the provisions of the will of his aunt Catharine A. Peck, and containing the further language:
“On December 13, 1942. * * * I legally relinquished, renounced and nullified any such powers as were given me in the above mentioned will of the said Catharine A. Peck.”
On January 17, 1945, claimant Berkson filed' a claim, by means of petition for assignment of residue, in the estate of Catharine A. Peck claiming the corpus of the ,one half residue of the estate held for the benefit of Percy S. Peck, which at the time of filing final account on December 5, 1944, was inventoried at $393,470.99. Berkson also filed claim in the Percy S. Peck estate to the uncollected income inventoried by the executors of his estate as having come from the estate of Catharine A. Peck, deceased, under paragraph 12 of her will, although never actually paid and still remaining a part of the corpus of the Catharine A. Peck estate, in the sum of $3,908.49.
It is to he noted that the custody and control of the funds of the trust in question remained entirely in the Michigan Trust Company, as cotrustee, and only a nominal bond of $10,000 was required of Percy S. Peck.
The cause came on for trial and at its conclusion the trial court denied recovery on the two claims filed by Joseph Berkson. In an opinion filed, the court said:
“Looking first to the basic instrument involved, the will of the deceased, we find the clearly expressed intention of a testator tn establish a trust from which her nephew Percy Peck would receive the income only for life, and the corpus of the trust would go to his heirs, if any, after his death. With an apparent understanding of her nephew, the testator had forebodings of that which later actually happened, i.e., the insolvency of her iiephew, and took the logical steps to preserve the estate. * * *
“In the opinion of this court Percy Peck did not have a life estate. It was not so intended nor does the operátion of the law create one merely by reason of the grant of a power to devise or because of the cotrusteeship as set up by the will. Percy,S. Peck was merely given the income from the trust. His legal status is termed a ‘beneficiary of a spendthrift trust.’
“Nor, in the opinion of this court, was the ‘power to devise by will,’ a power under the bankruptcy law ‘which he might have exercised for his own benefit,’ but rather it was a power ‘he might have exercised solely for some other person,’ and as such did not vest by operation of law in the trustee in bankruptcy. Neither the exercise nor nonexercise of the power to designate in his will, would benefit Percy Peck or his estate in any way.
“Nor was this power a ‘right of action — which he could by any nieans have transferred or which might have been levied upon and sold under judicial process against him, or otherwise seized, impounded or sequestered’ under the laws of this State, regardless of contrary holdings of the English cases and from some other jurisdictions. ’ ’
Claimant, Joseph Berkson, appeals and urges that Percy S. Peck’s voluntary bankruptcy was an exercise of his power to appoint and constituted an appointment of Fred G. Timmer, his trustee in bankruptcy, of a fee in the property covered by his power; and that insofar as creditors and purchasers are concerned Percy S. Peck was the possessor of a fee absolute at the time of his bankruptcy. Claimant also urges that regardless of section 70 of the bankruptcy act, Percy S. Peck’s conveyance in bankruptcy to his trustee of everything he possessed, not otherwise exempted, was the exercise of his power of appointment under the will of Catharine A. Peck and the corpus of the fund set aside for his benefit thereby passed to his trustee in bankruptcy and successively came to the hand of claimant by sale from the trustee.
In coming to our conclusions on the legal questions involved we have in mind that the trust in the instant case is a spendthrift trust, see Roberts v. Michigan Trust Co., 273 Mich. 91, 108, 109; and that paragraph 14 of the will provides:
“No person beneficially interested in any legacy of devise given by this will to my said trustee or trustees shall have power to assign, convey, pledge, hypothecate or anticipate the payment of any sum or delivery of any property which may at any time be or become due or payable by way of income or principal, under the terms of this will; and if any such assignment, conveyance, pledge, hypothecation or other instrument by way of anticipation is executed, the same shall be void and of no effect and shall not be recognized by my trustee or trustees, and it or they shall have power to withhold further payment to such person so beneficially interested in such legacy or devise, until such assignment, conveyance, pledge, hypothecation or other instrument shall be withdrawn or cancelled, in such manner as shall be satisfactory to my said trustee or trustees.”
In support of the claim that Percy S. Peck at the time of his bankruptcy was the possessor of a fee absolute, claimant relies upon 3 Comp. Laws 1929, § 13003 (Stat. Ann. § 26.99), which reads as follows:
“When an absolute power of disposition, not accompanied by any trust, shall be given to the owner of a particular estate, for life or years, such estate shall be changed into a fee, absolute in respect to the rights of creditors and purchasers, but subject to any future estates limited thereon, in case the power should not be executed, or the lands should not be sold for the .satisfaction of debts. ’ ’
Section 13007, 3 Comp. Laws 1929 (Stat. Ann. § 26.103), reads as follows:
“Every power of disposition shall be deemed absolute, by means of which the grantee is enabled, in his lifetime, to dispose of the entire fe’e for his own benefit.”
In the case at bar, the power of disposition was accompanied by a trust in favor of Percy S. Peck, the provisions of which gave him the power to dispose of the corpus of the estate by will. -His power was limited to disposing of the corpus by will effective at his death.
Section 70 (a) of the bankruptcy act, as amended by 44 Stat. at L. 667 (11 USCA, § 110), provides that the trustee of a bankrupt’s estate shall be vested by operation of law with the title of the bankrupt as of the date of adjudication as a bankrupt. Such power as Percy S. Peck had to dispose of the corpus of the trust estate by will was not an asset of the bankrupt’s estate.
In Jones v. Clifton, 101 U. S. 225 (25 L. Ed. 908), it was said:
“The title to the land and policies passed by the deeds; a power only was reserved. That power is not an interest in the -property which can be transferred to another, or sold on execution, or devised by will. The grantor could, indeed, exercise the power either by deed or will, but he could not vest the power in any other person to be thus exercised. Nor is the power a chose in action. It did not, therefore, in our judgment, constitute assets of the bankrupt which passed to his assignee.”
It should be noted that Percy S. Peck did not attempt to sell, assign or convey any of the trust property. In his petition in bankruptcy he listed his interest in the trust in manner following:
“Debtor has interests in certain trust assets as a spendthrift beneficiary according to the instrument creating the same but which may not be anticipated and are immune from creditors and not subject to assignment. ’ ’
Such a listing was not an assignment of his assets. •As a matter of fact it is notice that the bankrupt could not make such an assignment. It was not a conveyance in bankruptcy to the trustee.
We are not in accord with claimant’s contention that Percy S. Peck had a beneficial power as defined in 3 Comp. Laws 1929, § 13001 (Stat. Ann. § 26.97), which provides: “A general or special power-is beneficial when no person other than the grantee has, by the terms of its creation any interest in its execution.” In Roberts v. Michigan Trust Co., supra, we held that the children of Percy S. Peck had sufficient interest in the corpus of the trust to allow them to bring suit.
Claimant also urges that because Percy S. Peck was one of the trustees of his own trust the trust was executed; and that the presence of the Michigan Trust Company as a cotrustee does not prevent execution of the entire life estate of Percy S. Peck. It is well settled law that a beneficiary may be one of several cotrustees. In 54 Am. Jur. p. 102, the rule is stated to be, ‘ ‘ The sole beneficiary of a trust may be one of several cotrustees.”
See, also, Cummings v. Corey, 58 Mich. 494.
In view of the fact that Percy S. Peck never had a fee absolute in the corpus of the property or such a beneficial interest or power as defined in 3 Comp. Laws 1929, § 13001, it follows that claimant-has uq interest in the corpus of the trust fund.
The judgment of the circuit court is affirmed, with costs to the estates of Catharine A. Peck and Percy S. Peck.
Bushnell, C. J., and Boyles, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Sharpe, J.
This is a suit to enforce a racial restriction agreement which reads in part:
“That we nor either of us will let, lease or rent any part of said subdivision for occupancy by any person or persons not of the Caucasian race, and that we nor either of us will in any way permit or suffer any part of said subdivision to be occupied by any person or persons not of the Caucasian race;
“It being the intention of the parties hereto to restrict the property now owned in the said subdivision, by the parties hereto, to occupancy by persons of the Caucasian race exclusively.”
Plaintiffs Joseph Malicke and Stella Malicke, his wife, are the record title holders of land in the city of Detroit described as lot No. 242 of Dovercourt Park Subdivision. Plaintiffs Albert Szaradowski and Stanislawa Szaradowski, his wife, are the record title holders of lot No. 128 in the above subdivision. Plaintiff Home Owners Improvement Association is a Michigan nonprofit corporation consisting of a great number of record title holders and residents of the above subdivision.
On September 29, 1939, a number of owners of lots in the subdivision entered into a reciprocal restriction agreement which was recorded in the office of the register of deeds for Wayne county, Michigan, on January 17, 1940, and reads as follows:
“Know all men by these presents that we the undersigned and each of us, being the owners of one or more lots in the ‘ Dovercourt Park Subdivision of part of the southeast % of section 4, town 2 south, range_ 11 east, Springwells township (now city of Detroit) Wayne county, Michigan, according to the plat thereof as recorded in liber 34, at page 89 of plats, Wayne county records,’ in consideration of the mutual covenants herein contained and for the purpose of making and maintaining said subdivision as a desirable residential and business area for persons of the Caucasian race, do hereby agree to and with each other for ourselves, and for our and each of our heirs, executors^ administrators and assigns that we nor either of us will let, lease or rent any part of said subdivision for occupancy by any person or persons not of the Caucasian race, and that we nor either of us will in any way permit or suffer any part of said subdivision to be occupied by any person or persons not of the Caucasian race;
“It being the intention of the parties hereto to restrict the property now owned in the said subdivision, by the parties hereto, to occupancy by persons of the Caucasian race exclusively.
“It is also mutually agreed by and between the parties hereto that 'exhibit A’ hereto attached and made a part of this restrictive agreement, shows, by lot number, the lot or lots in said subdivision that each of the persons executing this agreement owns, and that said 'exhibit A’ shall have the same force and effect for the purpose of this agreement as if the same were written into the body of this agreement. ’ ’
The above restrictive agreement was signed by plaintiffs Joseph Malicke and wife, Albert Szaradowski and wife, and also by Steve Tomecko and Mary Tomecko, his wife. When the agreement was signed, Steve Tomecko and wife were the owners of lot No. 252 in the above subdivision. On October 23, 1942, Tomecko and wife conveyed the above lot to Michael Jovan and Helen Jovan, his wife, the deed to which was recorded in the office of the register of deeds for Wayne county. On August 18, 1945, Jovan and wife conveyed the above lot to defendants John T. Milan and Nettie L. Milan, his wife, who began occupancy of the property approximately on the date of the sale to them.
On September 29, 1945, plaintiffs filed a bill of complaint in the circuit court of Wayne county alleging that defendant Nettie L. Milan is not of the Caucasian race and that she and her husband are occupying the premises in question contrary to the restrictive agreement. Plaintiffs ask that defendants be enjoined from violating the restrictive agreement. Defendants filed an answer in which they neither admit nor deny that defendant Nettie L. Milan is of the Negro or colored race; they allege that the bill of complaint does not give the court ju risdiction to hear and determine the matters alleged in plaintiffs’ bill of complaint; that the relief prayed for is contrary to Michigan Constitution 1908, art. 2, § 16; that the restriction against occupancy, based on race, creed or color of the occupant is void under the 14th Amendment to the Federal Constitution; and that the restrictive covenant relied upon by plaintiffs is against the public policy of the State of Michigan.
The cause came on for trial and a decree was entered holding that defendant Nettie L. Milan is a colored person of the Negro race; that the property, owned and occupied by defendants is restricted; and that Nettie L. Milan be enjoined from using or occupying said property.
Defendants appeal and urge that the court erred in holding that cross-examination of a witness is limited to matters brought out on direct examination. In the case at bar a witness was called by plaintiffs and testified as to the color of defendant Nettie L. Milan. Upon cross-examination the witness was asked if she knew the western boundary of the subdivision. Upon objection the court held that the witness could only be cross-examined upon matters about which the witness testified.
The general rule is that the latitude to be allowed on cross-examination is largely within the discretion of the trial court. See Ritchie v. Stenius, 73 Mich. 563; Georgia v. Bond, 114 Mich. 196; Cummings v. Detroit United Railway, 163 Mich. 304.
In People v. Dellabonda, 265 Mich. 486, 499, we said:
“One of the elementary principles of cross-examination is that the party having the right to cross-examine has a right to draw out from the witness and lay before the jury anything tending or which may tend to contradict, weaken, modify or explain the testimony of the witness on direct exam ination or which tends or may tend to elucidate the testimony or affect the credibility of the witness.”
In People v. MacCullough, 281 Mich. 15, 25, we said:
‘ ‘ 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 vptness, its method and duration are subject to the discretion of the trial judge and, unless abused, its exercise is not the subject of review. * * * A witness may not be cross-examined as to any facts which, if admitted, would not only be collateral but wholly irrelevant to the matter in issue and which would in no way tend to affect his credit, nor can a witness be cross-examined as to an irrelevant matter in order to contradict him. * * * The latitude of cross-examination should not ordinarily go so far as to permit the introduction of evidence that has no legitimate relation to any of the issues on trial, which can in no way affect the credibility of the witness subject to cross-examination, and which is of such a character as to be likely to be misapplied by the jury.”.
In the case at bar the boundary of the subdivision was not in issue and testimony relating thereto was not material to the issues involved. We hold that under such circumstances it was not error to deny the defense the right of cross-examination upon the subject objected to.
It is next urged that the instrument relied upon by plaintiffs could not be legally recorded and thereby provide notice to defendants.
Section 13372, 3 Comp. Laws 1929 (Stat. Ann. § 26.761), provides:
“Every register of deeds shall, upon the payment of his proper fees, record or cause to be recorded, at length, upon the pages of the proper record books in his office * * * all deeds, mortgages, maps and instruments or writings authorized by law to be recorded in his office, and left with him for that purpose.”
Section 13309, 3 Comp. Laws 1929 (Stat. Ann. § 26.552), provides:
“The term ‘conveyance,’ as used in this chapter, shall be construed to embrace every instrument in writing, by which any estate or interest in real estate'is created, aliened, mortgaged or assigned; or by which the title to any real estate may be affected in law or equity, except wills, leases for a term not exceeding three years, and executory contracts for the sale or purchase of lands.”
Plaintiffs’ urge that under section 13309, supra, a racial restriction agreement may be legally recorded as it is within the definition of a “conveyance” set forth in the above section.
In Allen v. City of Detroit, 167 Mich. 464, 473 (36 L. R. A. [N. S.] 890), the Court said:
“Building restrictions are private property, an interest in real estate in the nature of an easement, go with the land, and are a property right of value, which cannot be taken for the public use without due process of law and compensation therefor. * * *
“The contention that the city under its general police power may ignore this building restriction, and erect its fire engine house within the restricted district because it is necessary for the public good and to protect the lives and property of citizens in that locality, is not tenable. When such action deprives the individual of a vested right in property, it goes beyond regulation under police power, and becomes an act of eminent domain governed by the appropriate condemnation laws.”
In Johnstone v. Railway Co., 245 Mich. 65 (67 A. L. R. 373), Justice Fead, in an excellent opinion upon the subject, said:
“This opinion (Allen v. City of Detroit, 167 Mich. 464 [36 L. R. A. (N. S.) 890]) has been cited with ap proval by this and other courts many times, and hás been regarded as announcing settled law of the State. Defendants, however, urge that the opinion is not in harmony with authority and principle, and should be overruled. Because of the importance of the question, we will re-examine it. * * *
“There can be no doubt that, if plaintiffs (owners of lots located 66 feet or more from the right of way) have property interests in the lots (not owned by plaintiffs) purchased or condemned by the State, the use of such lots for purposes in violation of the restrictions would work destruction of those interests and be a taking of property in the constitutional sense. So the basic question in the case is whether plaintiffs have such interest., * * *
“Other courts have designated the right created by building restrictions as a negative easement, reciprocal negative easement, property right, equitable interest, in the nature of, or analogous to, an easement or negative easement, and otherwise. Whatever the name, all "American authorities we have been able to discover, which have attempted definite statement of the effect of building restrictions adopted in furtherance of a general plan, hold that they constitute equitable interests or property rights in each lot for the benefit of and appurtenant to each other lot covered by the same restrictions, at least when the instrument creating them evidences the purpose that they shall run with the land and not be purely personal, (cases) * * *
“As further indication of their character, the courts are in harmony that building restrictions unknown to the purchaser constitute breach of covenant against incumbrances. * * * And in Sprague v. Kimball, 213 Mass. 380 (100 N. E. 622, 45 L. R. A. [N. S.] 962, Ann. Cas. 1914 A, 431), it was held that a building restriction is within a statute of frauds requiring conveyance of equitable as well as of legal interests in land to be evidenced by written instruments. * * *
“The position of this Court on the effect of a building restriction, originally taken before the subdivision in bar was platted, has been uniform. # * #
“In Sanborn v. McLean, 233 Mich. 227 (60 A. L. R. 1212), Mr. Justice Wiest, denoted its characteristics
“ ‘It runs with the land sold by virtue of express fastening and abides with the land retained until loosened by expiration of its period of service or by events working its destruction. It is not personal to owners but operative upon use Qf the land by any owner having actual or constructive notice thereof. It is an easement passing its benefits and carrying its obligations to all purchasers of land subject to its affirmative or negative mandates. It originates for mutual benefit and exists with vigor sufficient to work its ends.’ *; # *
“As the right' to restrict the use of real estate is an invasion of ownership, it would seem logical that it is done by virtue of a right or interest in Such real estate. Holding it an easement is no more than a fair expansion of the category of easements.
“No good cause appears for overruling Allen v. City of Detroit, supra. The rule there annbunced is a settled property law of the State, is supported by the weight of authority, and is founded upon principles approved by tile practically unanimous judicial opinion of the country. ’ ’
In the following cases the material parts of the recording statutes there under consideration were identical with section 13309 of the Michigan statutes now under consideration.
In Boyden v. Roberts, 131 Wis. 659 (111 N. W. 701), the instrument involved was an agreement restricting the use of real estate. The court there said:
“It is not claimed by appellants that record of the agreement would not constitute constructive notice if it were entitled to record, but it is insisted that it was not entitled to record within the recording acts. It is argued that the agreement does not create an ‘estate or interest’ in land. But the statute goes further than merely providing that only an instrument which creates an ‘estate or interest’ in land shall be entitled to record. It provides that “every instrument in writing by which any estate or interest in real estate is created, aliened, mortgaged, or assigned, or by which the title to any real estate may be affected in law or equity,’ is a ‘conveyance’-within the meaning of the recording act. Even if it be conceded that the restriction in the agreement does not create ‘an estate or interest in real estate’ within the meaning of section 2242, [Wisconsin] Stats. (1898), it seems clear under the authorities that the instrument is one by which the title to real estate therein described is ‘affected in law or eqtiity. ’ ”
In Bradley v. Walker, 138 N. Y. 291 (33 N. E. 1079), 12 owners of real estate entered into a mqtual agreement with each other in writing to leave an eight-foot strip of land for an open court. They covenanted for themselves and their heirs and assigns that the space in front of the lots should forever remain open, that the covenants be covenants running with the land and with the titles thereto and should be binding upon all and every person who should thereafter become the owner of the lots. An attempt was made to prove the agreement by a transcript of record from the register of deeds office. The court there said:
‘ ‘ The instrument, a copy of which is annexed to the complaint, was a conveyance of real estate within the meaning of the Revised Statutes, where it is provided (1 R. S. 762, § 38), that ‘The term “conveyance,” as used in this chapter, shall be construed to embrace every instrument in writing by which any estate or interest in real estate is created, aliened, mortgaged or assigned, or by which the title to any real estate may be affected in law or equity, except last wills and testaments, leases for a term not' exceeding three years, and executory contracts for the sale or purchase of lands. ’
4 4 The instrument was entitled to he recorded only because it was a conveyance of real estate within the meaning' of the statute.”
In Wayt v. Patee, 205 Cal. 46 (269 Pac. 660), a race restriction agreement was under consideration. The court said:
4 4 The further point made by respondents is that the respondents, the Kinchlows (colored), did not have either actual or constructive notice of the restrictions contained in said agreement. In support thereof respondents rely upon section 1213 of the Civil Code, which provides that every conveyance of real property properly and„ legally recorded is constructive notice to subsequent purchasers of its contents. Respondents contend that the agreement signed by the plaintiffs and the defendants, the Stewarts, containing said restrictions, was not a ‘conveyance’ of real property. In this we think respondents are in error, as by section 1215 of the Civil Code ‘the term ‘conveyance’ as used in section 1213 of said code embraces every instrument in writing by which an estate in real property is created, aliened, mortgaged, or encumbered, or by which the title to any real property may be affected, except wills. This definition of a ‘conveyance of real property’ is sufficiently comprehensive to include the agreement which is the basis of the present controversy.”
In view of the fact that building restrictions are an interest in real estate and as such may be recorded, it also follows that racial restrictions, having been treated in the nature of building restrictions, are within the definition of a “conveyance” as used in section 13309, supra, and as such are entitled to be recorded.
It is also urged that race restrictive covenants are contrary to the public policy of this State. Our holding in Sipes v. McGhee, 316 Mich. 614, and the cases therein cited is contrary to this contention. We have not been persuaded that our decisions in those cases are erroneous.
It is also urged that the restriction is violative of Michigan Constitution (1908), art. 5, .§ 1, which reads: “No law shall be enacted by the initiative that could not under this constitution be enacted by the legislature.” It should be a sufficient answer to this contention to state that courts do not enact laws.
It is also urged that enforcement of a race restriction agreement is contrary to thé 14th Amendment to the United States Constitution and article 2, § 16, of the Constitution of Michigan. This claim was decided in Sipes v. McGhee, supra, to which reference is made. Our holding there is contrary to the claim of appellants. We are not persuaded that the rule laid down in the above cited casé should be overruled.
We conclude that the trial court arrived at a correct decision in this case and the decree entered is affirmed, with costs to plaintiffs.
Bushnell, C. J., and Boyles, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Carr, J.
On April 3,1940, plaintiff Tony Tudryck brought an action of trespass on the case against defendant J. Otis Mutch. A default judgment of $4,500 was taken against Mutch on September 11, 1940. On April 4, 1942, Mutch filed a petition in bankruptcy and listed this judgment in his schedules. Tudryck filed a claim in the bankruptcy action, received as a dividend thereon the sum of $40.95, and Mutch was discharged as a bankrupt on January 29, 1943.
On the theory that this judgment was not discharged, various writs of execution were issued and returned unsatisfied, but writs of garnishment from time to time resulted in disclosing sums due Mutch, greatly in excess of the amount of the judgment. Upon stipulation an order was entered releasing the several garnishments and a cash bond of $10,000 was filed in lieu thereof. The order of release, however, was not entered until after motions to quash all writs of garnishments and to stay execution had been heard and denied, the appeal herein being from such an order entered on December 11, 1946. Plaintiff took a cross appeal because of the trial court’s reduction in the amount of the original judgment.
Defendant’s motion to quash was based upon his discharge in bankruptcy while plaintiff’s claim of his right to garnishment is based upon section 17 of the bankruptcy act, as amended in 1938, which reads in part as follows:
“A discharge in bankruptcy shall release a bankrupt from all of his provable debts, * * * except such as * * * (2) are liabilities for obtaining property by false pretenses or false representations, or for wilful and malicious injuries to the person or property of another, or for alimony due or to become due, or for maintenance or support of wife or child, or for seduction of an unmarried female, or for breach of promise of marriage accompanied by seduction, or for criminal conversation.” 52 Stat. at L. 851 (11 USCA, 1946 Cum. Supp. § 35).
Plaintiff has the burden of proving that his judgment is within the exception of the bankruptcy act, and in order to determine this the court may examine the entire record in the original action. Nunn v. Drieborg, 235 Mich. 383; Bonnici v. Kindsvater, 275 Mich. 304; and Horner v. Nerlinger, 304 Mich. 225.
The judgment.creditor and the trial court, however, may not go beyond that record. Rice v. Guider, 275 Mich. 14.
The Court recently stated in Citizens Mutual Automobile Ins. Co. v. Gardner, 315 Mich. 689, 694:
“In determining whether the collection of plaintiff’s judgment is barred by defendant’s discharge in bankruptcy the controlling issue is the exact nature of the debt on which such judgment was based. It is well settled that the form of action in which the judgment is obtained is not material. It is also settled law that in determining the nature of the obligation the inquiry is limited to the record on which the judgment is based. In Field v. Howry, 132 Mich. 687, 693, this Court quoted with approval from the opinion in Madison Township v. Dunkle, 114 Ind. 262 (16 N. E. 593), as follows:
“ ‘It is well settled that the courts will look behind a note, a mortgage, or even a judgment, to ascertain the nature of the debt, and, if it is ascertained to be one which a discharge (in bankruptcy) does not bar, it will be so adjudged.’ ”
A recital of the testimony upon which the default judgment was entered is therefore necessary.
On February 15, 1937, Tudryck, who for 17 years had owned and operated a 140-acre farm near Sterling, Michigan, suffered a crop failure on the only 12 acres which he then had under cultivation, and decided to close the farm and go to Detroit to work. With the help of his brother-in-law, Andrew Smyl, who lived on a farm a short distance away, Tudryek boarded up and nailed all the doors and windows of the farmhouse, barn and other buildings. They then locked the house and the windmill and chained the windmill and the gate leading to the premises.
At this time defendant Mntch was cashier of the Sterling Bank of Sleeper and Chamberlain at Sterling, Michigan, which bank held a mortgage upon plaintiff’s farm, not then under foreclosure. Tudryck had a talk with Mutch, during which he informed him that he had locked up the farm, had left the key with his brother-in-law, and was going to work in Detroit. He also told Mutch that he would send what money he could from his Detroit earnings to be applied upon his mortgage indebtedness, and that he would return later and. resume farming.
Sometime before plaintiff left the farm he gave Mutch a soldier’s bonus check for $480 to apply on the mortgage. A few days later, according’ to Tudryck, when he asked what had been done with the check, Mutch replied, “I do not know, only I put it on the mortgage, I put it on the mortgage and I never say nothing to you. ’ ’ Tudryck then requested a receipt for the check and Mutch replied, “Well, we will get to that later.” A photo static copy of this check offered in evidence showed that it had been indorsed by Mutch.
After Tudryck left the farm, Mutch took possession without the consent or knowledge of Tudryck, broke the chain on the gate and the lock on the door of the farm house, removed the boards from the windows, and rented the house to some tenants for a period of 13 months, during which time the farm house was totally destroyed by fire. Mutch, also, forcibly gained access to the outhouses, windmill and barn. He removed a chicken house, which had been bolted to a concrete floor, and took it to his own property. Two and one-half years later he dumped it back on plaintiff’s farm. The windmill which provided .water for the premises was left running, which greatly lessened its value.
During this time Mutch was dealing in wild horses and kept from 12 to 20 of them on the farm for about two and one-half years. In order to provide shelter for them during inclement weather he broke open the barn, removing the flooring and stalls, and took some of this lumber to his own farm. Many of the fences were destroyed and 7 acres of plaintiff’s land had been planted with barley.
The trial judge filed a written opinion in which he made the following observation:
“Considerable litigation has come before this court by reason of, or growing out of, the Sterling Bank receivership, and, in passing, I might properly observe that had defendant appeared, pleaded and testified, some justification for the defendant’s acts might possibly have been before the court. ’ ’
He found that defendant, by his default, admitted that he had wilfully and deliberately gone upon the premises without consent or color of right or authority, had committed the injuries above described, -and that such wrongful acts on the part of Mutch were without just cause or excuse. He held, however, that $540 should be deducted from the original judgment to cover the $480 soldier’s bonus check, because of plaintiff’s lack of proof that it had not been credited upon the mortgage. He also deducted the amount of dividend plaintiff had received in the bankruptcy proceedings and found that there was a balance of $3,978.25 in the judgment unaffected by the discharge in bankruptcy, which plaintiff was entitled to recover, with interest, from September 11, 1940.
There are two important factors to be considered, (1) whether plaintiff, having filed his claim in bankruptcy and having received a dividend thereon, can still maintain that his judgment against Mutch has not been discharged; and (2) what items of the judg ment fall within the statutory exception of the bankruptcy act.
The first may be disposed of by reference to the language of Mr. Chief Justice White in Friend v. Talcott, 228 U. S. 27 (33 Sup. Ct. 505, 57 L. Ed. 718), where he said:
“Thus, section 63a and b (30 Stat. 562) enumerates the debts which may be proved and which are therefore entitled to participate in the benefits of the act and are bound by its provisions, including a discharge. Section 17 (30 Stat. 550) enumerates the debts not affected by a discharge, that is, those exempted from its operation. It is apparent that the exemptions do not rest upon any theory of the exclusion of the creditor from the bankrupt act or of deprivation of right to participate in the distribution, biit solely on the ground that although such rights are enjoyed, an exemption from the effect of the discharge is superadded. The text leaves no room for any other view, since the exceptions in terms are accorded to certain classes of debts which are provable under section 63, and therefore debts which are entitled to participate in the distribution, the language being: ‘A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as, ’ et cetera. ” (30 Stat. at L. 550, chap. 541, U. S. Comp. Stat. Supp. 1911, p. 1495). See, also, 42 U. S. Stat. at L. p. 354 (11 USCA, § 35).
Plaintiff, therefore, was entitled to file his claim in the bankruptcy proceedings, receive a dividend thereon, and still maintain an action to collect the amount of those items which fall within the exceptions of the bankruptcy statute. The fact that the language of the original judgment indicates that it was based upon ‘ ‘ fraud and deceit, ’ ’ is hot controlling as to either party, but the record must be examined to determine the true nature of the acts upon which the judgment was based. Citizens Mutual Automobile Ins. Co. v. Gardner, supra. If these acts were wilful and malicious, the motion to quash was properly denied.
It is, however, necessary to separately consider the individual items comprising plaintiff’s judgment against Mutch, because each may be predicated upon a different act, and some may have been malicious and wilful while others may not. As stated in Nunn v. Drieborg, supra, 386, “wilful means intentional,” and “malice,, in common acceptation, means ill-will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse.” See Tinker v. Colwell, 193 U. S. 473 (24 Sup. Ct. 505, 48 L. Ed. 754), and Probst v. Jones, 262 Mich. 678.
In Davis v. Aetna Acceptance Co., 293 U. S. 328 (55 Sup. Ct. 151, 79 L. Ed. 393), the court said:
“But a wilful and malicious injury does not follow as of-course from every act of conversion, without reference to the circumstances. There may be a conversion which is innocent or technical, ail unauthorized assumption of dominion without wilfulness or malice. * * * There may be an honest but mistaken belief, engendered by a course of dealing, that powers have been enlarged or incapacities removed. In these and like eases, what is done is a tort, but not a wilful and malicious one. ’ ’
Defendant argues that his acts were done under an honest but mistaken' belief that Tudryck had abandoned his farm and therefore he had the right to go-upon the land in an attempt to reduce the indebtedness upon the mortgage. The facts, however, clearly indicate the contrary, and defendant failed completely to show by what authority he was acting for the bank as their agent in going upon the farm; nor did he show that any of the proceeds from his tortious. acts were actually applied upon the mortgage indebtedness. Neither the defendant nor the Ijank had any right or authority whatever to enter upon plaintiff’s land. Meyers v. Ermolik, 301 Mich. 284, and authorities therein cited at page 291.
The record discloses that the injuries to plaintiff’s farm and fixtures thereon resulted' from wilful and malicious conduct on the part of defendant. In consequence, under the pertinent provision of the bankruptcy statute (11 USCA, 1946 Cum. Supp. § 35, as amended June 22, 1938, c. 575, § 1, 52 Stat. at L. 851), defendant’s discharge in the bankruptcy proceeding is not a bar to the enforcement of the judgment insofar as it was based on such injuries.
The pheck in question was delivered by plaintiff to defendant with the understanding that the proceeds thereof would be credited on a mortgage debt owing by plaintiff. If so credited, defendant was not liable on the basis of this transaction. However, judgment inclusive of the amount of the check, with interest, was rendered in plaintiff’s favor. Obviously such action rested on the theory that the» proofs established a conversion by defendant. No attempt was made to have the judgment set aside, nor was there any appeal therefrom. It is,-therefore, conclusive as to defendant’s liability for the conversion of the proceeds of the check, which, under plaintiff’s theory, was a wilful and malicious injury. The fact that it was a default judgment does not alter the situation in this respect. Hagen v.
Reed, 30 Mich. 331; Jacobson v. Miller, 41 Mich. 90. See, also, Hoadley v. Gafill Oil Co., 241 Mich. 15; Peters v. Sturmer, 263 Mich. 494.
The declaration alleged that defendant converted the money to his own use ‘ ‘ fraudulently, wrongfully and unlawfully.” Obviously, if he .converted the money as the trial court found, he must be considered on this record as having done so wilfully and with, at least legal malice. In Probst v. Jones, 262 Mich. 678, it was held that the defendant, who executed and delivered a deed of real property as security for a loan and then sold the land to a good-faith purchaser before the deed was recorded, was guilty of a wilful and malicious injury to property within the meaning of the exception in the bankruptcy statute above cited. In reaching this conclusion it was said:
‘ ‘ Injuries within the meaning of the exception are not confined to physical damage or destruction. Wilful and malicious conversjon is an injury to property within the meaning of the present law, and liability therefor is not released by the discharge. The exception has been held to cover conversion of motor vehicles (In re Brier, 3 Fed. [2d] 709; In re Franks, 49 Fed. [2d] 389); collections on accounts assigned as security (Baker v. Bryant Fertilizer Co. [C.C.A.], 271 Fed. 473); and sales of corporate stock (McIntyre v. Kavanaugh, 242 U. S. 138 [37 Sup. Ct. 38, 61 L. Ed. 205]). These cases dispose-of any confusion which may have existed by reason of In re Toklas Bros., 201 Fed. 377; and Crawford v. Burke, 195 U. S. 176 (25 Sup. Ct. 9, 49 L. Ed. 147).”
See, also, American Surety Co. v. McKiearnan, 304 Mich. 322 (145 A. L. R. 1235); Citizens Mutual Automobile Ins. Co. v. Gardner, supra. The facts in the case at bar do not warrant an inference that defendant converted the money either negligently or under a misapprehension as to his rights. The judgment being based on the question of a conversion, the conclusion cannot be avoided that defendant’s act. was intentional, wilful and malicious. Enforcement of that portion of the judgment based on such conversion is, therefore, not barred by the discharge in bankruptcy.
Included in the judgment was an item of $1,800. covering loss sustained by plaintiff through the destruction of his house by fire. It is apparent from the record that recovery on this portion of plaintiff’s cause of action rested on the theory that defendant’s wrongful conduct, in taking possession of the house and renting it to others was the proximate cause of the loss. There is testimony to the effect that the fire resulted from an overheated stove, presumably used by those whom defendant had put in possession. For the reasons above pointed out the judgment is controlling on the question of proximate cause. It cannot now be questioned, therefore, that the destruction of the house was brought about by defendant’s conduct; and under the pleadings and the proofs, such conduct must be deemed wilful and malicious. The discharge in bankruptcy is, in consequence, not a bar to the enforcement of such part of the judgment.
Plaintiff alleged in his declaration that defendant, without right or authority so to do, rented the house for a period prior to its destruction by fire, that he used the farm to pasture live stock, that he also used a chicken coop for his own purposes, and that he raised a crop of barley on seven acres of plaintiff’s farm. In the declaration, and likewise in the bill of particulars, plaintiff alleged the right to recover for “use, occupancy and rental value” of the property so used. Obviously this part of. plaintiff’s claim was not based on injury to the property but rather on the right to be paid the reasonable value of the use thereof. The testimony on this phase of the case had reference to “fair rental values ’ ’ and no proof was offered in this connection indicating damage to property. No attempt was made to show how much rent, if any, defendant had collected from the occupants of the house. Recovery was not sought on the basis of defendant’s conversion of money that he had collected for plaintiff’s benefit for the use of plaintiff’s property. The amount of these claims for rent was clearly not included in the judgment on any possible theory that plaintiff’s property had been damaged by the use for which recovery of the rental was sought. Such items, not being for “wilful and malicious injuries” to plaintiff’s property, are not wdthin the exception in the bankruptcy law here involved, and in consequence their collection is barred by the discharge in bankruptcy.
Except as above indicated the order of the trial court from which the parties have appealed was correct at the time it was entered. However, the writs of garnishment were subsequently released pursuant to stipulation of the parties, as before noted, and a bond was filed pursuant to said stipulation. The case is remanded to the trial court for the entering of an order in accordance with this opinion, and in keeping with the altered situation, with costs of both courts to plaintiff.
Bushnell, C. J., and Sharpe, Boyles, Reid, North, .Dethmers, and Butzel, JJ., concurred., | [
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Bushnell, C. J.
Defendants R. F. Chapman and Mildred Chapman, his wife, have appealed from a decree requiring them to specifically perform a written agreement for the sale of improved property in the village of Allen Park, Wayne county, Michigan, to plaintiffs James A. Tiley and Kathleen Tiley, his wife.
The written contract between the parties provided for a total purchase price of $7,500, on which $50 was paid. The agreement recites that the balance of the purchase money is to be paid as follows:
“Approximately $2,650 down to F.H.A. mortgage presently on property, upon execution of good and sufficient deed, the balance to be paid as per terms, of existing F.H.A. mortgage with Manufacturer’s National Bank of Detroit.”
iThe matter of possession of the premises was algo agreed upon in that, “possession to be given by July 1, 1946, or as soon as public schools close.”
Defendants claim this contract has been abandoned, and if not, that it was not sufficiently complete with respect to the payment of the balance of the purchase price so. that specific performance can be granted.
The terms are clear and understandable. The defense of abandonment is based upon defendants’ claim that about four weeks after the date of the agreement Mrs. Chapman discovered that she was pregnant, and asked the Tileys if they would look for another house, because she would not be able to move.
Plaintiffs deny that they promised to comply with her request, but even taking Mrs.. Chapman’s testimony in its most favorable light, such conversation does not constitute an abandonment. Defendants argue that plaintiffs did nothing more about the matter until June 14th, when they brought over a check and demanded possession.
It cannot be said that plaintiffs were required to-do more than comply with the terms of their written agreement.
We have carefully examined the testimony and agree with the conclusion reached by the trial judge that there is no proof of abandonment.
As stated in Dundas v. Foster, 281 Mich. 117, 120:
“ ‘Abandonment by the purchaser is shown * * * where he positively and absolutely refuses to perform the conditions of the contract, such as a failure to make payments due, accompanied by other circumstances, * * * or where by his conduct he clearly shows an intention to abandon the contract. * * * As a general rule whether or not the purchaser’s acts and conduct amount to an' abandonment of the contract is a question for the jury; but such acts and conduct may be so decisive and unambiguous as to justify the court in deciding the question as a matter of law.’ ” 66 C. J. p. 731 et seq.
See, also, Buys v. Travis, 243 Mich. 470.
Although specific performance is a matter of grace, the court is not justified in withholding a decree from the one clearly entitled thereto, merely because of the exigencies of the ’case.
The decree is affirmed, with costs to appellees.
Sharpe, Boyles, Beid, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Bushnell, C. J.
Plaintiff Michael A. Mercatante was employed by defendant Michigan Steel Casting-Company in September of 1916. He first worked as an air hammer chipper and later as a hand grinder. Following an operation for hernia in 1941, he did inspection work in the same room where he had worked as a chipper and grinder. He stopped work on December 12, 1943, when he was hospitalized for influenza, followed by pneumonia. Oh January 8, 1944, he was transferred to Herman Kiefer Hospital.
It was stipulated that if Dr. Paul T. Chapmah, the director of tuberculosis hospitalization and field service for the Herman Kiefer Hospital was produced, he would testify that Mercatante was — “first seen in the Herman Kiefer Clinic for X-ray on December 9, 1937. He was next heard from in 1944, when St. Mary’s Hospital reported'that he was ill. He was then hospitalized at the general hospital on January 3, 1944. Later on, January 8, 1944, he was transferred to Herman Kiefer Hospital and has been in this hospital from that time to the present date. His present condition is quite poor as he has silico tuberculosis, the tuberculosis has been progressing and involving more of the lungs during his hospital stay and his prognosis at the present time is hopeless. He gives a long history of exposure to dust, working- in a foundry. When he was first seen in 1937 a diagnosis of third-degree silicosis with superimposed tuberculosis was made. It seems obvious from the history and from the clinical course from the time this man was first seen the silicosis preceded by many years of the development of tuberculosis.”
After a hearing before the deputy commissioner, plaintiff received an award of $21 per week for total disability from December 12, 1943, until further order, but not to exceed a total of $750. Upon review of defendants’ appeal from this award, the department of labor and industry entered an ordef granting Mercatante compensation of $21 per week for total disability from December 12, 1943, until further order, but not to exceed the aggregate sum of $4,000.
The department stated in its opinion:
‘ ‘ There can be no doubt that the last injurious exposure to the hazard of free silica occurred after the effective date of the occupational disease amendment,.” namely, October 29, 1937. See schedule of diseases, Act No. 10, pt. 7, § 2, Pub. Acts 1912 (1st Ex. Sess.), as added by Act No. 61, Pub. Acts 1937. Section 2 of part 7 as originally enacted in 1937 provided:
“Disabilities arising from Caused by
* * *
“30. Silicosis Mining
“31. Pneumoconiosis Quarrying, cutting, crushing, grinding or polishing of metal. ’ ’
The department said:
“The term ‘pneumoconiosis’ is recognized as a generic term used to cover all dust diseases of the lungs. The word ‘silicosis’ is used to describe a specific dust disease due to the inhalation of free silica. The term ‘pneumoconiosis’ includes the term ‘silicosis.’ It must be presumed that the legislature, when it placed the schedule of diseases in part 7, must have intended that pneumoconiosis, even though caused by the inhalation of free silica, if contracted by an-employee who was engaged in ‘quarrying, cutting, crushing* grinding or polishing of metal’ came within the scope of the schedule and further that if his disability was due to pneumoconiosis contracted in such an occupation, he would be entitled to benefits provided by the amendment as originally enacted. Likewise, it would seem that yhen the legislature used the term ‘pneumoconiosis’ which covers all dust diseases, it intended to provide benefits for disability from all dust diseases which wére caused by ‘quarrying, cutting, crushing, grinding or polishing of metal,’ regardless of what the specific disease might be.. In this case the specific disease, silicosis, was caused by ‘quarrying, cutting, crushing, grinding or polishing of metal. ’ It is well known that a silicotic lung provides a very fertile field for the activity of tubercular bacilli. Tuberculosis is quite frequently a complication of silicosis.
“The dust disease which is the cause of plaintiff’s total disability is one which was listed in the schedule in section 2 of part 7 when that part was originally added to the compensation act so the maximum benefit payable must be computed from October 29, 1937, the effective date of part 7.”
The department held that Mercatante was totally disabled by reason of “pneumoconiosis, more specifically; silicosis, which was caused by ‘quarrying, cutting, crushing, grinding or polishing of metal’ and is due to causes and conditions which are characteristic of and peculiar to the business of the Michigan Steel Casting Company and which arose out of and in the course of his employment by that employer. We find December 12, 1943, the last day of work in the employment in which he last was subjected to the conditions resulting in disability, to be the date of injury. We further find December 12, 1943 to be the date of disablement. The date of disablement oc curred in the 74th calendar month after the effective date of Act No. 61, Pub. Acts 1937. Plaintiff is therefore entitled to compensation of $21 per week for total disability from December 12, 1943 until the further order of the commission but not to exceed the aggregate sum of $4,000.”
Webster’s International Dictionary (2d Ed.) defines the word “pneumoconiosis” by its derivatiofi from three Greek words, ‘ £pneumon, ’ ’ meaning lung ; “konio,” meaning dust; and “osis,” meaning an abnormal or diseased condition. Hence a dictionary definition of this pathological condition would be an abnormal or diseased dust condition of the lung.
Defendants argue that the record does not “ support the determination that the disability of plaintiff is due to the dust disease of silicosis as found by the deputy commissioner,” and that-the department is not “ justified in determining that the silicosis suffered by plaintiff was pneumoconiosis in the absence of any such determination in the record.” This argument might be answered by simply approving the reasoning of the department, just quoted, and by applying the pathological definition just given.
Sutter v. Kalamazoo Stove & Furnace Co., 297 Mich. 226, decided April 8, 1941, is authority for limiting the payment of compensation to silicosis arising out of mining, and that tuberculosis is not compensable. It is, also, authority, however, for the proposition that pneumoconiosis is compensable under the amendment of 1937. (Act No. 10, pt. 7, Pub. Acts 1912 [1st Ex. Sess.], as added by Act No. 61, Pub. Acts 1937 [Comp. Laws Supp. 1940, § 8485-1 et seq., Stat. Ann. 1940 Cum. Supp. § 17.220 et seq.]), when it is caused by the ‘£ quarrying, cutting, crushing, grinding or polishing of metal. ’ ’ Following decision in the Sutter Case the legislature in 1943 amended part 7 by striking therefrom the schedule of diseases and provided for recovery for ‘ ‘ a disease or disability which is due to causes and conditions which are characteristic of and peculiar to the business of the employer and which arises out of and in the course of the employment.” Section 1, part 7, workmen’s compensation law, as amended by Act No. 245, Pub. Acts 1943, effective July 30, 1943 (Comp. Laws Supp. 1945, § 8485-1, Stat. Ann. 1947 Cum. Supp. §17.220).
It should be noted that the date of plaintiff’s disablement, viz., December 12, 1943, was almost sis months after the effective date of Act No. 245, Pub. Acts 1943, which deleted the schedule of diseases from part 7 of the workmen’s compensation act and substituted in place thereof the language just quoted. Since that date any differentiation between silicosis and pneumoconiosis becomes unimportant;
The situation disclosed in the instant case is similar to that in Gerlesits v. Lakey Foundry & Machine Co., 319 Mich. 229, where a like argument by defendant was discussed. Decision in the Gerlesits Case is controlling here. See, also, Stewart v. Lakey Foundry & Machine Co., 311 Mich. 463, and Thomas v. Continental Motors Corp., 315 Mich. 27, both of which were decided after the effective date of the 1943 amendment, supra.
The department properly applied these authorities to the facts of the instant case. The record supports the department’s determination that the disability suffered by plaintiff is due-to pneumoconiosis.
The award entered upon such determination is affirmed, with costs to appellee.'
Sharpe, Reid, Btttzel, and Carr, JJ., concurred. with Bushnell, C. J.
See Comp. Laws Supp. 1940, § 8485-2, Stat. Ann. 1942 Cum. Supp. § 17.221.—Reporter. | [
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Sharpe, J.
Petitioners, Bert B. Hailey and Mable Hailey, his wife, filed a petition for a writ of prohibition to restrain William J. Wolf, justice of the peace for the city of Saginaw, and Dale D. Doyle and Margaret Doyle from taking any further proceedings to enforce a judgment obtained against petitioners in the Saginaw justice court under date of July 11, 1941.
Respondents filed a reply in which they deny that petitioners are entitled to the writ of prohibition for reason that there is a valid and subsisting judgment in the justice court for the city of Saginaw in favor of Dale D. Doyle and Margaret Doyle against Bert B. Hailey and Mable Hailey.
An enumeration of the facts leading up to the petition seems necessary for a proper understanding of the issues involved. On July 11, 1941, a judgment was entered in the amount of $490 and costs in favor óf Dale D. Doyle and Margaret Doyle,, his wife, against Bert B. Hailey and Mable Hailey. An appeal was taken by Hailey and wife and return was made to the circuit court of Saginaw county on July 16, 1941, where both parties appeared and defendants Hailey requested a trial by jury. On May 3, 1943, this appeal was dismissed for want of progress. On November 16, 1945, petitioners Hailey filed a motion to strike the words “on appeal” from the order dismissing the appeal. Subsequently and on April 16, 1947, petitioners filed a motion for reinstatement oftlie appeal for the reason that the court was not authorized to dismiss appeals and could only dismiss causes. Subsequent to the dismissal of the appeal by the circuit court, respondents Doyle served a copy of the dismissal order upon one of the justices for the justice court for the city of Saginaw. Thereafter and on April 23, 1947, a writ of garnishment was issued out of the justice court. Petitioners Hailey, who were defendants in the justice court, filed a motion therein to dismiss the garnishment proceedings for the reasons alleged that no valid judgment exists upon which a writ of garnishment may be based. The justice of the peace denied the motion. Following the denial of this motion, petitioners filed their petition for a writ of prohibition. A show cause order was issued out of the Supreme Court, to which the respondents filed a reply.
It is the position of petitioners that respondents are attempting to enforce a void judgment and they rely on Miller v. Davis, 241 Mich. 544, and Northrup v. Jay, 262 Mich. 463, and urge that after the return on appeal was made and filed in the circuit court, the case became a circuit, court cause-and was subject to all the rules and regulations of the circuit court as if made and filed in an action originally commenced in said circuit court.
It is the position of respondents that when an appeal is dismissed or discontinued under the ‘ ‘ no progress” statute,-3 Comp. Laws 1929, § 14253 (Stat. Ann. § 27.982), the judgment of the justice court is in- full force and remains a valid judgment.
When a cause is appealed from a justice court to the circuit court, the appealing party shall furnish a bond as required by 3 Comp. Laws 1929, § 16225 (Stat. Ann. § 27.3483). One of the conditions of the bond is that:
“(3) It shall contain a condition that the appellant will prosecute his appeal with all due diligence, to a decision in the circuit court, and that if a judgment be rendered against him in such court, he will pay the amount of such judgment, including all costs, with interest thereon, and if his appeal shall be discontinued or dismissed that he will pay the amount of the judgment rendered against him, if any, in the justice’s court including all costs, with interest thereon.”
Section 16242, 3 Comp. Laws 1929 (Stat. Ann. § 27.3500), reads as follows:
“Upon an appeal being dismissed or discontinued, and a certified copy of the order of dismissal or discontinuance being served upon the justice, he shall proceed thereon as if no appeal had been made.'”
The effect of a dismissal of an appeal is stated in 4 C.J.S. p. 2007:
“On the dismissal of an appeal * * * the cause stands in the trial court as if no appeal had ever been taken; * * * the decree or order appealed from becomes final, and the effect of such dismissal is to leave the parties where they were before the appellate proceeding was instituted. ’ ’
However, there is a distinction between the dismissal of an appeal and the dismissal of a suit. The dismissal of a suit or case concludes the litigation, see. Miller v. Davis, supra., and Northrup v. Jay, supra, but in the dismissal or discontinuance of an appeal, the judgment of the justice court is revived, see French v. Weise, 112 Mich. 586.
In the case at bar, petitioners filed a motion to strike the word “appeal” from the order dismissing the appeal and later filed a motion for reinstatement of the appeal. The motion to reinstate the appeal was a recognition of the validity of the jurisdiction of the trial court to dismiss the appeal, see Northrup v. Jay, supra, hence we shall treat this controversy as a dismissal of an appeal rather thán the dismissal of a canse. The cases relied upon by petitioners do not relate-to the dismissal of an appeal and therefore are not authority on snch an issue. Petitioners could have sought leave to appeal from the denial of their motion to reinstate.
Petitioners also urge that the no progress statute only authorizes the dismissal of appealed causes where the parties have had a’ chance to be heard and have not taken advantage of the opportunity.
Circuit Court Rule No. 3 (Saginaw circuit) reads as follows:
“Whenever any cause either at law or in chancery be at issue as-to all parties, any attorney desiring to obtain a trial or hearing thereof shall file a praecipe for hearing with the clerk, which praecipe shall be given a consecutive number.”
The cause was appealed on July 16, 1941, and was not dismissed until May 3, 1943. During this period of time petitioners could have praeciped the cause for trial. It is now too late to complain of their inaction. The trial court was not without authority in dismissing the appeal under the no progress statute as the dismissal of a case that has been brought into the circuit court by appeal follows the same procedure as if the case was originally started in the circuit court, see Miller v. Davis, supra.
In Rogers v. Wayne Circuit Judge, 243 Mich. 703, we, said:
“The writ of prohibition is an extraordinary writ and should not and will not be granted where petitioner has an adequate remedy by some other proceedings.”
Under the facts and circumstances in this case, we decline to issue the writ. Respondents may recover costs.
Bushnell, O. J., and Reid, North, Butzel, and Carr, JJ., concurred with Sharpe, J. Boyles and Dethmers, JJ., concurred in the result. | [
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Carr, J.
During the month of October, 1940, an investigation concerning alleged violations of the statutes of the State pertaining to gambling was being conducted by one of the judges of the Wayne circuit court. In connection with such proceeding a warrant was issued to search the residence of plaintiff and her husband, Peter Kosiba, in the city of Dearborn. The premises in question were searched, and certain gambling paraphernalia seized. In a safe in the basement of the house the officers found the sum of $3,749.79 in cash, consisting almost entirely of silver coins, which was also taken. Subsequently, and apparently without any proceeding for the confiscation or condemnation of the money, it was turned over to the board of county auditors.
Following the search of his residence, Peter Kosiba was arrested, and he and plaintiff were later indicted on a charge of criminal conspiracy. The case was dismissed as to plaintiff but Kosiba was tried and convicted, with others, the conviction being affirmed by this Court in People v. Watson, 307 Mich. 596. One of-the alleged conspirators, Roxborough, was separately tried and convicted. In affirming the case this Court, in People v. Roxborough, 307 Mich. 575, said with reference to Kosiba:
“The record shows that one of the defendants, Peter Kosiba, an operator of a mutuel house known as ‘Western Union,’ had a commercial banking account with an average monthly balance of approximately $38,000, and that the deposits in this account from March 21, 1938, to March 1, 1940, totalled $735,406.44.”
At the time the money was taken from the home of Peter Kosiba and the plaintiff, the latter told the officers that it belonged to her, although it does not appear that she at the time interposed any objection to its being taken. Later she demanded that it be returned to her, which demand was refused. "On May 24, 1945, she filed her petition in the Wayne circuit court asking that a writ of mandamus issue to compel the defendants, who then comprised the Wayne county board of auditors, to pay to her the sum of money in question.
On the trial in circuit court plaintiff did not testify in her own behalf. She undertook to support her claim of ownership of the money seized by the officers and turned over to the county, by the testimony of her husband, Peter Kosiba. The latter admitted that he had engaged for some time in gaihbling operations and testified further that plaintiff knew of such activities on his part. He further claimed that plaintiff was interested in an automobile business carried on by a corporation of which he was the president, and stated that whatever money plaintiff made from said business was deposited in certain bank acounts. With reference to the money involved in the present suit, Kosiba testified that he had given it all to plaintiff from time to time in “small change” that he happened to have in his pocket. In answer to the court’s question with reference to the source from which the money was received by him he declined to state that all of it came from the so-called policy racket, claiming that he made some money from time to time in card or crap games with friends, which money he also gave to plaintiff. He made no claim that any of the money that he gave to plaintiff came from any source, or sources, other than as indicated.
From the testimony before him the trial judge concluded that the money came into the hands of Peter Kosiba as the proceeds of illegal and criminal gambling, and that because of the circumstances under which plaintiff acquired it she was not entitled to a writ of mandamus to compel its payment to her. An order was accordingly entered denying the relief sought, and plaintiff has appealed.
The record fully supports the findings of the trial court as to the source from which the money came. Kosiba received it in the course of his gambling operations and gave it to plaintiff who knew of her husband’s unlawful activities. The question before us is, in brief, whether plaintiff is entitled to the relief sought by her in this proceeding. It has been repeatedly declared by this Court in prior cases that mandamus is a discretionary remedy and that the writ is one of grace and not of right. Toan v. McGinn, 271 Mich. 28; Quandt v. Schwass, 286 Mich. 433; Powers v. Secretary of State, 309 Mich. 530; Winter v. Royal Oak City Manager, 317 Mich. 259. The general principles controlling its issuance were summarized in McLeod v. State Board of Canvassers, 304 Mich. 120, 125, as follows:
“Writ of mandamus will issue to compel public officers and tribunals to perform their duties, when right is clear and specific. National Bank of Detroit v. State Land Office Board, 300 Mich. 240.
“Writ of mandamus lies only to enforce performance of clear legal right or ministerial duty. Home Insulation Co. v. State Board of Tax Administration, 298 Mich. 657.
“The primary purpose of the writ of mandamus is to enforce duties - created by law. Waterman-Waterbury Co. v. School District No. 4, 183 Mich. 168.
‘ ‘ Mandamus will not lie to compel a public officer to perform a duty dependent upon disputed and doubtful facts but is designed to enforce a plain, positive duty upon the relation of one who has a clear legal right to have it performed, and when there is no other adequate legal remedy. Toan v. McGinn, 271 Mich. 28.
“The writ of mandamus is a discretionary writ and should not issue unless there is ‘a clear legal duty on the part of the defendant, and a clear legal right in plaintiff to the discharge of that duty. Taylor v. Isabella Circuit Judge, 209 Mich. 97; Smith v. Wagner, 234 Mich. 428; Miller v. City of Detroit, 250 Mich. 633; Toan v. McGinn, supra.
“ Mandamus issues only to compel the recognition of a clear legal right or the performance of a legal duty; it does not issue so long as the right or the duty is disputed or doubtful. Post v. Sparta Township Board, 63 Mich. 323; Peck v. Kent County Supervisors, 47 Mich. 477.”
Plaintiff cites and relies on Bitonti v. Wayne County Auditors, 311 Mich. 322. There the plaintiffs presented separate petitions for the return of money that had been taken from them by officers who .did not have a search warrant, which money was later turned over to the defendant board of auditors in like manner as in the case at bar. No criminal prosecution was instituted against any of the plaintiffs. On the hearing each testified in his own behalf to the ownership of' the money taken from him and there was no showing that any of the plaintiffs had received such money in illegal gambling transactions, or otherwise unlawfully. On the basis of the facts actually shown the trial court granted relief and this Court affirmed the order. The case at bar presents a materially different situation as to the facts. Plaintiff bases her right to recover, as testimony offered in her behalf clearly indicates, on the ownership of money received as a gift from her husband who obtained possession of it in the course of his unlawful gambling operations.
Plaintiff, also, cites and relies on Kearney v. Webb, 278 Ill. 17 (115 N. E. 844, 3 A. L. R. 1631). There the plaintiffs sought in an action of assumpsit to recover money taken from plaintiffs ’ agents and employees, who were acting on behalf of plaintiffs in the operation of a gambling business. The defense to the action was based on the claim that at the time of the seizure the money was being used in the furtherance of illegal gambling. It does not appear from the opinion of the court, however, that there was any showing, or in fact any claim, that the money in dispute had been received by plaintiffs as the proceeds of the illegal business. Neither does it appear that any claim was made that pertinent statutes of the State permitted the confiscation of money so used on the theory that it should, under such circumstances, be placed in the general category of gambling paraphernalia. On the basis of the record in the case plaintiffs were held entitled to recover. Obviously, the decision may be distinguished from the instant case on the basis of the facts. It may be noted also, in passing, that this Court held in People v. Krol, 304 Mich. 623, that money used as a prize in gambling operations should be regarded as “material of gaming,” under the provisions of Act No. 328, § 308, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-308, Stat. Ann. § 28.540).
In Hofferman v. Simmons, 290 N. Y. 449 (49 N. E. [2d] 523), plaintiffs brought actions in replevin to recover moneys taken from them' by police officers of New York city. Defendants claimed that plaintiffs were not entitled to recover because they had received the money in unlawful gambling operations. Motions for summary judgments in plaintiffs ’ favor were granted in the lower court. The court of appeals reversed the judgments. In concluding that the defense raised was meritorious, it was said in part:
“Nonetheless no one of these plaintiffs may recover if, upon a trial of the facts in his case, it shall appear that his only claim to these moneys arises from his receipt of them in the form of bets made with him while he is doing business as a professional gambler. ’ ’
In the case at bar the testimony of plaintiff’s husband clearly indicates that he came into possession of the money as proceeds from his unlawful course of conduct. It is not disputed that plaintiff knew the nature of the business in which he was engaged. Plaintiff’s claim rests on the basis of a gift to her of the money taken by the officers from the safe in the Kosiba home. In view of the nature of plaintiff’s claim and the basis therefor the trial court did not abuse his discretion in holding that she was not entitled to a writ of mandamus. The order from which plaintiff has appealed is therefore affirmed, with costs to defendants.
Bushnell, C. J., and Sharpe, Boyles, Reid,North, Dethmers, and Butzel, JJ., concurred. | [
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Butzel, J.
Valetá Sargent, plaintiff, brought suit for divorce against Vernon Sargent, defendant, on December 2, 1942. The defendant filed an answer and cross bill. On June 11, 1943, the circuit judge rendered a decree of divorce on the cross bill filed by defendant. Under its provisions, aside from granting the divorce to defendant, the custody of the two minor children of the parties, a boy and a girl of the ages of 4 and 2 years respectively at the time, was given to the plaintiff.
On August 18, 1943, the decree vías modified so as to give the custody and control of the children to defendant. There was evidence that plaintiff had neglected the children and conducted herself in a manner that necessitated the amendment of the original decree.
On November 30, 1946, plaintiff petitioned the court for a further amendment of the decree so as to re-awárd the custody of the children to her. Her petition was granted, and an amended decree to that effect was entered. The decree, as amended, also requires the defendant to pay $6 a week for the support of each child. Defendant appeals from this amended decree.
Plaintiff testified at the hearing on her petition that in November, 1943, a few months after the modification of the original decree, and, also, twice thereafter, she interviewed the trial judge and asked him what she should do to recover the custody of her children; that he told her to remain in Lansing and make a good name for herself. She followed this advice and has established a very fine reputation.
It appears that very shortly after the amendment to the original decree defendant was inducted into the United States Navy and was subsequently sent overseas. When he entered the service, he placed the children in the home of his brother, who lives in the country not far from Lansing.
Both of the parities have remarried. Plaintiff and her husband, Earnest Johnson, also a veteran, reside in Lansing in a six-room modern home which they are purchasing. The lot on which it is built is but little more than a stone’s throw from a Lansing school, and includes a yard in which the children can play. Mr. Johnson is gainfully and steadily employed and is desirous óf having the children in his home. He promises to do everything in his power to look after them. Plaintiff has an infant child by her new husband.
Defendant and his wife own a farm not far distant from Lansing. The farm home is 1.4 miles from a country school which the children attend. There is no question but that the children have been receiving proper care from the defendant and his new wife.
During the years that elapsed since custody of the children was given to the defendant, plaintiff has continued to see them at frequent intervals, and has been permitted at times to take them to her own home. She has given them loving care and the children appear to be genuinely fond of her. No showing has been made that the conduct of either the plaintiff or the defendant has been anything but exemplary since the amended decree was entered. Defendant has attempted to raise an unjustifiable inference from an incident in plaintiff’s life during the period, but we shall not dignify it by any further reference to it. It is defendant’s contention that plaintiff has forfeited her right to the custody of the children by pursuing a course of conduct shortly after the original decree was entered which led the court to take custody of the children away from her.
The trial judge who rendered the original decree is now a member of this Court. Another judge heard the testimony on the petition to restore the custody of the children to plaintiff. It was shown by several witnesses that plaintiff’s conduct has been most commendable. She has worked hard at honorable and gainful pursuits, remained home most of the time, sewed and bought clothes for .the children and carefully looked after them when she had them temporarily. She is extremely anxious to give them a mother.’s care and affection. The friend of the court filed a report with the court which was corroborated by the testimony of one of his assistants, as well as by other witnesses. The following statement was made therein:
“I have had, more or less, contact with this case since 1943. For the past several years, to my knowledge, the plaintiff has conducted herself in a proper manner and I am satisfied has lived a wholesome life. From what the children have told me in the past, they admire their mother and have indicated to me that they would like to live with her.
"I know of no reason from a moral standpoint why the plaintiff is not entitled now to have custody of her children.”
We are convinced that the record shows that plaintiff is now a proper person to have custody of the children, and that they will be well taken care of by her. While it is true that the custody was taken away from her for proper reasons in 1943, she has done everything possible to redeem herself in the eyes of the court and the public by her good conduct and behavior ever since.
The testimony shows that plaintiff was only 16 years of age when she married defendant, and 21 when she lost the custody of the children. It is claimed that her delinquency was due to her extreme youth. We will not pass judgment on the questions raised whether a modern home with ample bedrooms and convenience and with a city school in close proximity to the home are more advantageous for the children than a farm house and a country school 1.4 miles distant therefrom. The, sole question is whether the court abused its discretion, after seeing and hearing plaintiff and the other witnesses, by awarding the custody of the children to- plaintiff. We have held in' these unfortunate cases that in awarding the custody of minor children on the separation of parents, a court of chancery has discretionary powers to consider the varying elements entering into each case and to make such disposition as the best interests of the child appear to demand; that if there is not an abuse of discretion, we will uphold the decree of the trial court. Davis v. Davis, 296 Mich. 711; Austin v. Austin, 308 Mich. 139. Under the peculiar conditions of this case, we do not believe there was an. abuse of such discretion.
Our attention is called to a number of cases wherein we declined to disturb the status quo when it was sought to transfer the custody of children from one divorced parent to the other. Undoubtedly it is disturbing to the children to have their home ties disturbed. They find themselves confused and insecure. It will be found that in all these cases we affirmed the trial judge if the court did not abuse his discretion in coming to his conclusion as to what was best for the welfare of the children.
In Lazell v. Lazell, 271 Mich. 271, a case that in many respects resembles the instant one, we affirmed the decree of the trial judge, who refused to order the custody of the child transferred from, the father to the mother. In the instant case, the father was away from home almost the entire time with the exception of 11 months, from the date of the first amended decree until the filing of plaintiff’s petition. In Lazell v. Lazell, supra, the child involved was a boy over nine years of age, who for over five years had been with his father, formerly a rural school teacher. The boy was doing good school work, enjoyed farm life, had a very fine companionship with the father, and was seemingly happy. The mother wa§ a good woman, and had she been able to care for the boy, she would have been entitled to his custody at the time of the original decree. In the instant case, the children are much younger and, while the father and his new wife are persons of good character, nevertheless, there has not been the close association of many years between the children and the father as in the Lazsell Case.
Under the peculiar facts of the instant case, we cannot say that the judge abused his discretion in giving the custody of the children to the plaintiff.
The court will undoubtedly permit the children to visit their father at regular intervals and to stay with him for longer periods during the summer months, and during the latter periods the judge may see fit to suspend payments for thé support of the. children. We do not feel that the provision for the payment of $6 a week for the support of each child is excessive.
The decree as amended is affirmed, with costs to plaintiff.
Bushnell, C. J., and Sharpe, Boyles, Reid, North, and Dbthmers, JJ., concurred. Carr, J.,' did not sit. | [
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Carr, J.
The facts in this case have been stipulated. On July 23, 1908, the decedent, Donald J. Loakes, was adopted by John and Mary Loakes. No question is raised as to the validity of the adoption proceeding. The adopting parents owned certain real estate in Ingham county as tenants by the entireties. Following the death of the husband, Mrs. Loakes, being the sole owner by right of survivor-ship, deeded, the property to a third person who immediately reconveyed to Mrs. Loakes and the adopted son in joint tenancy, with right of survivor-ship. Subsequently, on the death of Mrs. Loakes, decedent became the sole owner of the real estate 'and continued as such owner until the time of his death. He' was not married. He died intestate December 2,1946, leaving the real estate in question and some personal property. His blood relatives, if any such survived him, are unknown.
Proceedings for the administration of the estate of decedent were duly instituted in the probate court of Ingham county, and the personal property was assigned to Nelson E. Hogan and Vernon Hogan, who were the brothers of the adopting mother, Mary Loakes. The probate judge held, however,, that under pertinent provisions of the statute, said brothers were not entitled to inherit the real estate and ordered it escheated to the State of Michigan for want of heirs. The circuit court affirmed the order and Vernon Hogan and the executrix of the estate of Nelson E. Hogan, who died June 3, 1947, havé appealed.
No question is presented as to the distribution of the personal property of the decedent. Such distribution is controlled by Act No. 288, chap. 2, § 94, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-2 [94], Stat. Ann. 1943 Rev. §27.3178 [164]), which reads as follows:
“All personal property of an adopted child, dying intestate, shall be distributed to the same persons and in the same manner as though such adopted child had been the natural child of its adopting parents.”
Said section is a re-enactment of 3 Comp. Laws 1929, § 15726, subd. 8. It is conceded that under this section the personalty was properly distributed to appellants. While not directly involved in the controversy the language of the section quoted is pertinent for the purpose of comparison with statutory provisions controlling the descent of real property which are found in chapter 2, § 86, of the act of 1939, above cited (Comp. Laws Supp. 1940, § 16289-2 [86], Stat. Ann. 1943 Rev. §27.3178 [156]). Said section reads as follows:
“Whenever any person heretofore or hereafter adopted by any person or persons, with intent to make sneh person an heir at laW of the person or persons adopting the same, shall die intestate, leaving no issue, any real estate of which such person dies seized and which does not descend to the husband or wife, if any, of such adopted child, except such real estate as may have come to such deceased person by inheritance from his or her natural parents, shall descend to the adopting parent or parents in the same proportions as though such adopting parents had been the natural parents of said deceased person.”
It seems apparent from a comparison of these sections that the legislature did not intend that the' real estate, of which an adopted child may be seized at the time of his death intestate shall necessarily descend to the person or persons entitled to the personal property. The difference in phraseology is scarcely explainable on any other basis. It is also significant that the language of the section last quoted is materially different from corresponding provisions previously in force. Act No. 81, Pub. Acts 1891 (3 Comp. Laws 1897, § 9077, 3 Comp. Laws 1915, § 11808), provided that real estate of án adopted child, dying intestate, which had come to him from his adopting parents, should “descend to the persons and in the same manner as though such person had been the natural child of the person or persons from or through whom such estate shall have come as aforesaid.” Act No. 45, Pub. Acts 1923 (3 Comp. Laws 1929, § 13453 [Stat. Ann. § 26.994]) further amended the statute by incorporating an exception with reference to real estate that the adopted child had inherited from his natural parents and providing also, subject to such exception, that real estate of which the adopted child dies seized, should descend “to the adopting parent or parents or their legal representatives in the same proportions as though such adopting parents had been the natural parents of said deceased person.” The fact that the legislature in the enactment of the present probate code, Act No. 288, Pub. Acts 1939, above cited, saw fit to leave the provisions covering the distribution of personal.property unchanged and at the same time to substantially alter the section relating to the descent of the real estate of an adopted child, dying intestate, is indicative of the intent. A material change in language in the amendment or re-enactment of a statute must be regarded, unless otherwise indicated, as evidencing a purpose to change the force and effect of the existing law. Lawrence Baking Co. v. Unemployment Compensation Commission, 308 Mich. 198 (154 A. L. R 660).
The language of the provisions relating to the descent of the real estate of which an adopted child, dying intestate, may be seized at the time of his death, is not ambiguous. Had it been intended that it should pass as though the owner were the natural child of the adopting parents, subject to the exception as to property inherited from the natural parents, we may assume that language of such import would have been used, as was done with reference to personal property. However, the right of inheritance was given to the adopting parents, with no indication that the kindred or other heirs of such parents might inherit, under any circumstances, the real estate of the adopted child. To sustain the contention of the appellants would involve reading into the statute something that is not there. This we may not do. Its obvious scope and purpose may not be extended by construction. Van Derlyn v. Mack, 137 Mich. 146 (66 L. R. A. 437, 109 Am. St. Rep. 669, 4 Ann. Cas. 879).
Appellants call attention to the provisions of the statute, 3 Comp. Laws 1897, § 8780, in effect at the time Donald J. Loakes was adopted in 1912. Said section, after indicating the procedure to be followed in an adoption proceeding, declared:
“The person or persons so adopting such child, shall thereupon stand in the place of a parent or parents to such child in law, and be liable to all the duties and entitled to all the rights of parents thereto, and such child shall thereupon become and be an heir at law of such person or persons, the same as if he or she were in fact the child of> such person of persons.”
It will be noted, however, that the language quoted referred solely to the status of the adopted child and to the rights and duties of the adopting parents. Nothing was said with reference to any possible incidental right or interest accruing to the heirs of such parents. Furthermore, the descent of property of a person dying intestate is governed wholly by statutory provisions in force and effect at the time of death. In re Shumway’s Estate, 194 Mich. 245 (L. R. A. 1918A, 578); In re Dempster’s Estate, 247 Mich. 459. It is also settled law that adoption proceedings and the resulting incidents depend wholly on statute. Morrison v. Sessions’ Estate, 70 Mich. 297 (14 Am. St. Rep. 500); Brown v. Blesch, 270 Mich. 576 (97 A. L. R. 1012).
In construing our statutes relating to the subject this Court has held that an adopted child may not inherit from kindred of the adopting parents for the reason that the legislature has not provided for such inheritance. Van Derlyn v. Mack, supra; Moritz v. Wayne Circuit Judge, 291 Mich. 190; Moritz v. Horsman, 305 Mich. 627 (147 A. L. R. 117). For like reasons it must be said that kindred of the adopting parents may not inherit the real estate of the adopted child. There being no person or persons, so far as this record discloses, to whom the real estate of Donald J. Loakes may descend, the conclusion necessarily follows that it escheats to the State of Michigan. See Evans Products Co. v. State Board of Escheats, 307 Mich. 506, where the statutes of this State pertaining to escheats are cited and discussed.
Counsel in their briefs have called attention to cases decided in other States. Such decisions, in most instances, have been based on statutes differing materially from those of this State, above quoted. It is recognized in all of these cases that the matter of the descent of property is governed by legislative action. The general principles observed are fairly indicated in a recent decision of the supreme court of Oregon, In re Frazier’s Estate, 180 Ore. 232 (177 Pac. [2d] 254, 170 A. L. R. 729), where it was held that under a situation analogous to that presented in the case at bar the property of the decedent escheated to the State. After citing and discussing numerous decisions from other States it was said in part:
“Our adoption statute was enacted in 1864, and, so far as any question presented in this case is concerned, has remained unchanged. The provisions which we are called upon to construe necessarily have the same meaning that they had when the legislature passed them. The most appealing argument that has been made on behalf of the defendant is based upon the humane aspects of the adoption institution and the desirable policy to be pursued— an argument which in the end touches what the law ought to be, not what it is. In the case of In re Estate of Miller, 117 Ore. 399, 405 (244 Pac. 526), this court said: ‘In order to change the regular statutory rule of descent, there should be a plain, definite legislative enactment to that effect.’
“The legislature seems to have recognized this rule in enacting the adoption statute, for it did not stop with the provision in section 63-406 that the decree of adoption shall order ‘That from the date of the decree the child shall, to all legal intents and purposes, be the child of the petitioner,’ but proceeded in section 63-407* to confer expressly the right of inheritance on the child only from his parents by adoption only, evidently thinking that such declaration was necessary and that the existence of the right could not safely be left to inference. See Hole v. Bobbins, 53 Wis. 514 (10 N. W. 617). We do not wish to be understood as saying that the right of the adoptive parents to inherit cannot be implied as the Wisconsin court held in the cited case. But we do hold that, since the subject matter of the statute is a legal relation created between, and confined to, the child and its parents by adoption, to extend that relation to- others by court decision would be not to construe the statute but to enlarge it beyond its fair import—in effect, to amend it. ’ ’
For the reasons indicated, it is our conclusion that appellants are not entitled to inherit the real estate of decedent under the pertinent provisions of the Michigan statutes. The order of the circuit court is affirmed and the case remanded for further proceedings. In view of the nature of the controversy, no costs are allowed.
Bushnell, C. J., and Sharpe, Boyles, Reid, North, Dethmers, and Butzel, JJ., concurred.
This act amended R. S. 1846, chap. 67, by adding a section 14 thereto.—Reporter.
Oregon Compiled Laws Annotated, 1940.—-Reporter. | [
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Reid, J.
Plaintiffs and appellants, Stephen D. Brown and Frank T. Nelson, filed a petition for a declaration of rights pursuant to 3 Comp. Laws 1929, § 13903 (Stat. Ann. §27.501).
The questions involved are: (1) Whether a policeman or fireman who has fulfilled all of the conditions required of him by law to receive a pension has a vested right to future payments, of which he cannot be deprived by subsequent legislation, and (2) Whether a decree in a former chancery litigation between the same parties is res jiidicata as to legislation changing the basis of determination of pension, which legislation was enacted after the said decree was signed.
The questions presented are as to the validity of a charter amendment adopted by the city of Highland Park at its November 7, 1944 election, which amendment became effective July 1, 1945 and is hereinafter referred to as the 1945 amendment. The amendment in question reduced (in some cases) the pensions paid to retired firemen and policemen and to the widows of firemen and policemen.
The city of Highland Park is a home-rule city, incorporated under the provisions of Act No. 279, Pub. Acts 1909, as amended (1 Comp. Laws 1929, § 2228 et seq. [Comp. Laws Supp. 1945, § 2228 et seq., Stat. Ann. and Stat. Ann. 1946 Cum. Supp. § 5.2071 et seq.]). In its original charter, which became effective April 4, 1918, a provision was embodied providing for a .pension of $50 per month upon disability or retirement of policemen or firemen after a specified number of years of service. This provision of the charter was amended in 1923, 1929, 1937, 1942 and 1945, each amendment changing the basis upon which the amount of pension was to be determined.
Prior to the 1945 amendment, as a result of the recommendations made by an accountant employed by the city, the authorities of the city determined to bring about a revision of the pensions allowed un der the chartef, in order to protect the stability of the city’s financial situation. The city council proposed an amendment to chapter 14, the part of the charter having to do with pensions, which proposal, herein referred to as the 1945 amendment, was approved by the voters and under its provisions the pensions of both plaintiffs were reduced in amount.
The city filed a cross petition in this case and joined some 20 other cross-defendants in order that the case might be considered as a class suit and that the decree which might be entered would be binding upon all persons having an interest in the subject matter.
Plaintiff Brown was appointed a member of the fire department of the city on August 25, 1914, and resigned April 19, 1915; he was appointed a probationary patrolman, October 31, 1921, and his appointment was confirmed January 28, 1922. On October 14, 1943, he was retired from the division of police of the city pursuant to council .resolution dated- September 14, 1943, which is as follows:
“Moved that Stephen D. Brown, whose service with the division of police of the city of Highland Park, Michigan, will total more than 20 years on October 14, 1948, upon his own application, be and he is hereby rétired from said division subject to the provisions of chapter 14 of the city charter, said retirement to take effect as of October 14, 1943.
“Be it further resolved, that the said Stephen D. Brown be relieved from duty with pay from September 14, 1943.
“Carried.”
It must be noted that Brown’s" retirement wás subject to the provisions of chapter 14 of the charter, which charter by its own terms was amendable.
Plaintiff Nelson was appointed a probationary patrolman in the division of police of the city in May, 1920;’ his appointment was confirmed Au gust 22, 1920, and on and after July 1, 1945, he became eligible for retirement.
During the period of plaintiffs’ service, deductions, on percentage basis, were required by the ordinance to be made from their salaries and such deductions were credited to a fund of the city toward payment of pensions. This was done without any express agreement or protest on the part of plaintiffs so far as the record discloses.
Each of the plaintiffs claims that he has fulfilled all the conditions required of him under the charter of Highland Park in order for him to receive a pension. Each plaintiff claims that the city had no right to decrease his pension and each claims that he has a vested right to future payments as a matter of contract and that in view of the provisions of the Federal Constitution he cannot by subsequent changes in the charter be deprived of his vested rights.
Plaintiffs cite and rely upon Bowler v. Nagel, 228 Mich. 434 (37 A. L. R. 1154). Plaintiff in that case brought mandamus to compel William J. Nagel, controller of the city of Detroit, to pay an amount due plaintiff from the pension fund. In granting the writ we say, in the majority opinion written by Justice Sharpe, at pp. 440, 441,
“The moneys to be paid to retiring employees under the amendment are not gratuities. They are annuities, commonly called pensions, and in the nature of compensation for services theretofore rendered. * * Such payments are provided for in laws like that before us in the belief on the part of those favoring their enactment that the city is benefited thereby, that more efficient service is rendered, and that the long continuous service necessary to .bring the employees within its provisions justifies its payment as an economic proposition.”
The language of that opinion just cited is the part of the opinion on which plaintiffs mostly rely but the entire opinion must be read to explain the meaning of the words cited. We did not in that case decide that the granting and acceptance .of the pension constituted a contract between the employer, the city of Detroit, and the pensioner. We merely determined that as long as the pension stood unrevoked by the city, the controller was. obliged to issue the checks in accordance with the pension system.
We entertain no doubt that it is competent for the city of .Highland Park to adopt a pension system reasonable in its provisions, but the important question in this case is whether a contract was entered into on the part of the city of Highland Park with each of the plaintiffs, the obligation of which the city is forbidden by the Federal Constitution to impair. The question for us to determine in this case is not the power nor the capacity of the parties, which power and capacity are not disputed; what we must determine is whether or not under the circumstances disclosed in the record a contract is to be considered as having been entered into between the parties binding upon each and providing for a pension in the amount claimed by plaintiffs.
In the case of Attorney General v. Chisholm, 245 Mich. 285, this Court decided quo warranto proceedings brought by the attorney general of this State against certain persons to determine their rights as members of the teachers’ retirement fund board of the State of Michigan. Defendants were members of the board created by Act No. 174, Pub. Acts 1915 (2 Comp. Laws 1915, §5767 et seq.), which act was known as the teachers’ pension act, and which act was repealed by Act No. 319, Pub. Acts 1927 (2 Comp. Laws 1929, § 7094 et seq. [Stat. Ann. § 15.1 et seq.]). The board created by the act of 1915 to administer tbe teachers’ pension fund assumed to function after the act of 1927 became effective, claiming that the repealing act was unconstitutional. Among other things, the defendants in that case contended that the relations between the State and the teachers are contractual and beyond the power of the legislature to impair (p. 287). Justice Fellows in speaking of thd board, after discussing the opinion in Attorney General v. Connolly, 193 Mich. 499, says, pp. 288, 289:
“If the contributions to the fund provided for by section 6 of the act are not contributions by the teachers of their money, but are "appropriations of public money, and this Court so held in the Connolly Case, it must be manifest that a contract has not been made between the State and the teacher, and the question of impairment of contracts must be deemed to be settled by that case. While we are doubtless committed by the Connolly Case, attention should be called to the recent case of People, ex rel. Donovan, v. Retirement Board of the Policemen’s Annuity & Benefit Fund, 326 Ill. 579 (158 N. E. 220, 54 A. L. R. 940), and the valuable and exhaustive note following the report of the case in 54 A. L. R. beginning at page 943.’’
We further note later cases cited in 98 A. L. R. 505 and 112 A. L. R. 1009-1012, especially City of Dallas v. Trammell, 129 Tex. 150 (101 S. W. [2d] 1009, 112 A. L. R. 997), cited in 112 A. L. R. 1009.
We are convinced that the majority of cases in other jurisdictions establishes the rule that a pension granted by public authorities is not a contractual obligation, that the pensioner has no vested right, and that a pension is terminable at the will of a municipality, at least while acting within reasonable limits. At best plaintiffs in this case have an expectancy based upon continuance of existing charter provisions. 112 A. L. R. 1011, supra.
In this case the pension was not any part of the contract of employment. Each plaintiff upon entering the employment of the city did so with full knowledge imputable to him that the charter provisions concerning pensions could be amended. Neither plaintiff had any express contract that an irrevocable pension should be a portion of his salary.
The second question involved in this litigation is as to whether a decree signed by Circuit Judge Keidan in 1943 is res judicata of matters involved in an attack on the 1945 amendment.
In the case at bar the decree of the lower court sustained in general the claim of the city respecting its right to make changes in its pension system but the circuit, judge struck out from the decree a finding of res judicata, which finding was requested by the city. The city took a general cross appeal,', which appeal, however, is more importantly aimed at obtaining a judicial determination of res judicata.
Both parties agree that Judge Keidan’s decree is res judicata as to matters as they stood in 1943. Judg’d Keidan’s decree determined that there was no vested interest in future instalments of the pension. That determination stood unappealed from. Therefore, defendant city contends that Judge Keidan’s decree amounted to res judicata, even though the 1945 amendment had not at the date of the decree been adopted by the city. We do not find it necessary to determine that question. We determine this case against plaintiffs On the ground that they had no vested right to the pensions.
The decree of the circuit court is affirmed. A decree may be entered herein in accordance with this opinion. No costs are allowed, a question of public importance being involved. .
Bushnell, C. J., and Sharpe, Boyles, North, ' Dethmers, Butzel, and Carr, JJ., concurred. | [
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Carr, J.
This case results from an automobile accident occurring about 3:30 in the morning of February 22, 1942. Plaintiff and one Walter Glaser were riding in a truck owned and driven by defendant. Approximately four miles south of the village of Watersmeet in Gogebic county, the vehicle left the traveled portion of the highway, coming to a stop in the ditch on the left side of the road. Plaintiff sustained serious injuries, and instituted the present suit to recover damages therefor. The case was tried before a jury, which returned a verdict in plaintiff’s favor in the sum of $5,314.50. Defendant’s motion for a new-trial was denied, and he has appealed.
The record does not set forth the pleadings, but it appears that the case was tried on behalf of plaintiff on the theory that the accident resulted from defendant’s negligence in failing to keep a reasonable and proper outlook for plaintiff’s safety. It is conceded that plaintiff was asleep at the time of the accident, and no question is presented as to contributory negligence on his part. On behalf of plaintiff, testimony was offered on the trial to the effect that following the accident defendant made admissions indicating that he was asleep when the truck left the highway. Defendant denied the alleged statements, and claimed that he was fully awake at the time. It was also plaintiff’s claim that he paid defendant the sum of two dollars for the privilege of riding in the truck. Defendant denied such payment, and the issue was submitted to the jury under instructions that plaintiff could not recover unless they found from the evidence that plaintiff had paid defendant as claimed. The jury determined the issue in plaintiff’s favor, thus disposing of the claim that plaintiff was a guest passenger and that defendant was not liable in the absence of gross negligence or wilful and wanton misconduct on his part.
It is the claim of defendant that the evidence in the case did not justify the finding of the jury that defendant was guilty of negligence constituting the proximate cause of the accident. At the conclusion of plaintiff’s proofs a motion for a directed verdict was made by defendant and was denied by the trial court. It was renewed at the conclusion of the case with like result. If, as plaintiff claimed on the trial, the accident happened because defendant fell asleep while driving, negligence on the latter’s part was thereby established. Devlin v. Morse, 254 Mich. 113; Perkins v. Roberts, 272 Mich. 545. No claim is made that such conduct constituted gross negligence or wilful and wanton misconduct. If, on the other hand, defendant’s version as to what occurred is correct, the conclusion is fully justified that he was not keeping a reasonable and proper outlook. The night was clear, and no claim is made that defendant’s vision was in any way obstructed. Neither is there any proof that the truck left the highway because of coming in contact with any obstruction, or that it skidded because of a slippery condition of the surface of the road. Defendant, called for cross-examination by the plaintiff, testified that the accident happened on a gradual curve, that his windshield was clear, and that he did not go to sleep before the accident. The following excerpt from his examination by his own counsel indicates his theory as to what occurred:
“Q. Now, Bill, just how did this accident happen?
“A. I was driving down the road, hitting north, coming from the south and I don’t know what went wrong but my oil gauge was not working just right although the car had been just overhauled and I was more or less watching it and I don’t know how we got in the ditch yet.
“Q. You mentioned the oil gauge, what did the oil gauge show?
“A. The oil gauge kept dropping all the time.
“Q. What connection did the oil gauge, have with anything that happened? -
“A. I probably was looking at the oil gauge and 'if I glanced at the oil gauge I went in the ditch.
“Q. At the time the accident happened how fast do you think you were going?
“A. About 25 or 30 miles per hour.
“Q. How long do yon think you may have looked down at the oil gauge at one time ?
“A. Probably a few seconds.
“Q. Long enough to go about how far?
“A. A couple hundred feet.
“Q. You went into the ditch on the left side of this curve?
“A. Yes.”
Except as indicated by the testimony quoted, defendant offered no explanation as to the cause of his truck leaving the highway. It is apparent that he was not watching the road immediately prior to the accident. His own testimony fully justified such conclusion. It is true that an inference of negligence may not be drawn from the mere fact that an accident occurred. The doctrine of res ipsa loquitur does not obtain in this State. Watrous v. Conor, 266 Mich. 397; Weissert v. City of Escanaba, 298 Mich. 443 (10 N. C. C. A. [N. S.] 393); School District of the City of Ionia, for use and benefit of Employers’ Liability Assurance Co., v. Dadd, 308 Mich. 220. However, proper inferences may be drawn from the facts disclosing the manner in which the accident has taken place. Heppenstall Steel Co. v. Railway Co., 242 Mich. 464; Hazen v. Rockefeller, 303 Mich. 536. The testimony of the defendant, above quoted, is consistent with that of his witness, Glaser, who was riding in the car at the time óf the accident. According to the latter, he was watching the oil gauge and was carrying on a conversation with defendant with reference to it immediately prior to the accident.
It is a logical conclusion from the evidence that defendant was not keeping a proper outlook. It was his duty to observe the road and not permit his attention to be distracted by some matter that did not constitute a hazard to the operation of his car. No claim is made that an examination of the oil gauge, or any discussion concerning it, was imperative at the time. Nevertheless, defendant, according to his own admission, permitted his observation to be diverted from the road for several seconds while the car was proceeding a distance of approximately 200 feet. Under the circumstances, this did not constitute due care. In Wineman v. Carter, 212 Minn. 298 (4 N. W. [2d] 83), it was said (syllabus by the court):
“A normal boy in his sixteenth year held guilty of. negligence as matter of law in so driving an automobile that it collided with another parked on the street, the collision being the result of his inattention while picking up a lighted cigarette which he had just dropped.”
Likewise in Sheehan v. Foster, 80 Cal. App. 56 (251 Pac. 235), it was held that defendant had not exercised ordinary care and diligence for the safety of the plaintiff because, while driving 12 to 15 miles an hour, he neglected to watch the road while endeavoring to pick up the ignition key that had fallen to the floor of the car. See, also, Orme v. Farmer, 268 Mich. 425; Breckenridge v. Arms, 279 Mich. 384; Dreyer v. Otter Tail Power Co., 205 Minn. 286 (285 N. W. 707); Bashor v. Bashor, 103 Col. 232 (85 Pac. [2d] 732, 120 A. L. R. 1507). Whether defendant’s failure to observe the highway before him was due to his falling asleep, or to the reason suggested in his own testimony, the conclusion cannot be avoided that he failed to observe the duty resting on him. His claim that the evidence did not establish negligence on his part is without merit.
Error is predicated on the admission, over defendant’s objections, of the testimony of a deputy sheriff of the county, who was a witness in plaintiff’s behalf. Said witness had in his possession the report that he had taken from the defendant, following the accident, under the provisions of 1 Comp. Laws 1929, § 4722, as last amended by Act No. 318, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 4722, Stat. Ann. 1947 Cum. Supp. § 9.1590). Under the specific terms of said statute, a report so made is not “available for use in any court action.” The record indicates that the witness was permitted to examine it for the purpose of refreshing his recollection. In answer to questions propounded to him, he read from the report a statement indicating that defendant had admitted falling asleep immediately prior to the accident. It is clear from the answers of • the witness that his recollection was not refreshed, for he indicated that his testimony was based entirely upon the report, and that he had no recollection whatsoever of defendant or the statement made by him. The situation is materially different from that involved in Delfosse v. Bresnahan, 305 Mich. 621, and in Heiman v. Kolle, 317 Mich. 548. In each of these cases the witness whose testimony was challenged testified to matters within his own knowledge or recollection. The report itself was not offered in evidence and a motion to strike the testimony was, at the time, denied by the trial court. Subsequently, however, such motion was renewed and was granted prior to the submission of the case to the jury. The testimony was incompetent, but we think the action of the trial court in striking it out cured the error, under the circumstances involved in the case. Johnston Gravel Co. v. Borck, 229 Mich. 64; Morris v. Montgomery, 229 Mich. 509; Cobinco v. Robinson, 243 Mich. 170; Phillips v. Fotheringham, 277 Mich. 566. The testimony given was cumulative, three other witnesses produced by plaintiff having testified’that defendant had made to them, or in their presence,, statements indicating that he had fallen asleep prior to the accident. See Metcalf v. Peerless Laundry & Dye Co., 215 Mich. 601. Furthermore, defendant’s testimony, as above pointed out, clearly indicates that he did not exercise due care for the safety of plaintiff. Under the circumstances here presented, it cannot be said that the error in the admission of the testimony was of such character that it could not be cured by striking such testimony from the record.
During the progress of the trial, the following occurred in the examination of plaintiff’s witness, Leo Brooks:,
“Q. Where did Mr. Anys state he had left Mike?
“A. He said he left him at the Grand View Hospital and everything was all right. He said he had seen the local police in Ironwood and everything was all right and his truck was fully covered in insurance.
‘‘Mr. Wright: 1 now move for a mistrial.
“The Court: I do not think the statement came out with any premonition but came out quite spontaneously.
“Mr. Wright: It certainly is a prejudicial statement and contrary to the statute.
“The Court: I do not think it created that impression, it came out so spontaneously. However, the jury will disregard that statement. There is no. such question in this case and this has nothing whatsoever to do with the case and the jury is not to be governed at all or guided by that statement and it has no place in this trial. This is an action between. Mike Trafamczak and William Anys.”
The motion for a mistrial was denied, the trial court expressing the opinion, as indicated in the language above quoted, that the testimony was spontaneous and not anticipated by counsel. We think the trial court was correct in his conclusion and the denial of the motion for a mistrial was not erroneous. In White v. Makela, 304 Mich. 425, 436, the Court, citing prior decisions relating to the matter, said:
“We have had occasion to discuss the question here raised, and our conclusions have quite uni formly been that the mere fact that the defendant has insurance has reached the ears of the jurors during the trial does not constitute reversible error, unless an improper use of it is made by counsel for the evident purpose of inflaming the passions of the jury and thereby affecting the result or increasing the size of the verdict, or unless such testimony was designedly injected into the case for such purpose or purposes.”
In the case at bar it does not appear that any attempt was made by counsel for the plaintiff to make any use whatsoever of the statement concerning insurance. Neither does it appear that the matter was designedly injected into the case. The form of counsel’s question was not such as to call for any statement from the witness as to what defendant had said with reference to insurance.
It is also claimed by defendant that the verdict of the jury was excessive. On the basis of the evidence the claim is not tenable. While the verdict was substantial, it clearly appears that plaintiff sustained injuries of a serious nature. He had a fractured arm, severe head injuries, cuts and abrasions. He was hospitalized for a period of three weeks following the accident, and was unable to work for approximately three months. He was at the time of the occurrence 58 years of age, a laboring man in good health. At the time of the trial, in July, 1946, he claimed that he was still suffering ill effects because of his injuries, and gave testimony tending to show that his earning capacity had been materially reduced. The awarding.of damages for pain and suffering rested in the sound judgment and discretion of the jury. It cannot be said on this record that such discretion was abused, or that the size of the verdict indicates that the jury was in any way im properly influenced in returning it. Cleven v. Giffin, 298 Mich. 139; Gibbons v. Delta Contracting Co., 301 Mich. 638.
For the reasons indicated, the judgment is affirmed, with costs to plaintiff.
Bushnell, C. J., and Sharpe, Boyles, Reid, North, Dethmers, and Butzel, JJ., concurred.
See 1 Comp. Laws 1929, § 4648 (Stat. Ann. § 9.1446). | [
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Butzel, J.
The individual plaintiffs are employees of the city of Dearborn, Michigan, and members of. the retirement system created by ordinance No. 210 of the city of Dearborn, entitled:
“Ail ordinance to provide a retirement system, for employees of the city of Dearborn in the general classified civil service.”
Another plaintiff is the Municipal Employees Association of the city of Dearborn, a voluntary unincorporated association of employees of the city, the majority of which are members of the retirement system created by ordinance No. 210. The right of this association to bring suit is questioned, but irrespective of whether it had such right or not there are sufficient number of proper plaintiffs without it.
Plaintiffs filed a petition for a writ of mandamus in the circuit court for the county of Wayne against the council of the city of Dearborn and its members to compel the city council to include the sum of $140,135 in the appropriation bill for the fiscal year beginning July 1, 1947, as the city’s contribution to the annuity reserve fund under the provisions of ordinance 210. The ordinance was adopted by a vote of the electors of the city of Dearborn at a special election on November 3, 1942. Questions in regard to this same ordinance were ruled on in Mayor of City of Dearborn v. Dearborn Retirement Board of Trustees, 315 Mich. 18, and Hubbard v. Board of Trustees of Dearborn Retirement System, 319 Mich. 395.
The ordinance in general provides for the creation of a retirement system under which city employees who are members must contribute 5 per cent, of their compensation to an annuity savings fund. The ordinance further provides:
“Article 3.
‘ ‘ Section 1. The general administration and the responsibility for the proper operation of the retirement system and for making effective the provisions of this ordinance are hereby vested in the board of trustees of the retirement system. * * *
“Sec. 14. The board shall designate an actuary who shall be the technical advisor of the board in matters regarding the operation of the funds created by the provisions of this ordinance and who shall perform such other duties as are required in connection therewith.
“Sec. 15. Immediately after the establishment of the retirement system, the actuary shall make such investigation of the mortality, service and compensation experience of the members as he shall recommend and the board shall authorize, and on the basis of such investigation he shall recommend for adoption by the board such tables and such rates as are required for the proper operation of the retirement system. The board shall adopt tables and certify rates, and as soon as practicable thereafter the actuary shall make a valuation based on such tables and rates, of the assets and liabilities of the funds created by this ordinance. * * *
“Sec. 17. The board shall adopt for the retirement system such mortality, service and other tables as shall be deemed necessary, for the proper administration of this ordinance. On the basis of such tables, the actuary shall make annually an actuarial valuation of the assets and liabilities of the funds of the retirement system. * * *
“Article 7. * * *
“Sec. 2. (a) The annuity reserve fund shall be the fund in which shall be accumulated the reserves for the payment of all annuities and other benefits payable from the contributions made by the city. # * #
“(b) Upon the basis of such mortality tables, regular interest and other tables as the board shall adopt, upon recommendation of the actuary, the actuary shall annually make an actuarial valuation of'the assets and liabilities of the retirement system as of the close of the fiscal year ending June 30th. Upon the basis of such valuation, the actuary shall annually compute the amount of the city’s contribution to the annuity reserve fund, which paid annually during the future natural lifetime of the members and beneficiaries of the retirement system would be insufficient (sic) to provide payment of the annuities and other benefits to which members and beneficiaries may be entitled or are entitled to receive under the provisions of this ordinance. The board shall report to the council, on or before the first clay of March, the amount of the city’s contribution so determined and the council shall appropriate and the city shall pay such amount of contribution .into the annuity reserve fund during the ensuing fiscal year.” (Italics ours.)
The ordinance further provides that if a person ceases to be a member of the retirement fund for any reason other than his becoming a beneficiary or because of his death, he shall be paid all or part of his contributions without interest or additions upon demand on forms provided by the board. Other provisions of the ordinance do not affect the question herein involved.
The board of trustees certified to the city council the amount of $140,135 as the amount the city should contribute to the annuity reserve fund for the fiscal year beginning July 1, 1947. The amount so certified was included by the council in its annual budget adopted April 8, 1947. This item in the budget was vetoed by the mayor of the city on April 21, 1947, and the council refused to override the mayor’s veto. Plaintiffs seek to compel the council to do so by this action.
Plaintiffs contend that the council had a legal duty to override the mayor’s veto and reinstate the certified amount in the budget because of the provisions of ordinance No. 210 above quoted. They contend that the provisions of the ordinance with reference to the inclusion of the amount certified by the board of trustees in the annual budget are mandatory in character, and that the council has no discretion in the matter. As members of the retirement system, they contend that they have a direct personal, and, financial interest in the maintenance of the solvency of the "retirement system and that defendants’ failure to appropriate funds to it has jeopardized its solvency. The petition prays that the defendants be compelled to include the certified sum in, the appropriation bill for the fiscal year beginning July 1, 1947.
The city of Dearborn is a home-rule city. It cannot pass ordinances that are contrary to the charter of the city. The charter makes due provision for the adoption of the budget each year, and for the raising of money for municipal purposes by taxation. It provides for "a city council and vests in it full power and authority to exercise all legislative powers conferred upon the city by the Constitution and general laws of the State, including the power to make appropriations and to determine the amounts to be raised by taxation for municipal purposes.
Ordinance No. 210 purports to give to the board of trustees of the retirement system the power to determine the amount that the city shall contribute to the retirement fund set up by the ordinance. However, it does not set up any fixed standards to guide the board in making, a determination, other than that the board shall adopt “such mortality, service and other tables as shall be deemed necessary for the proper administration of this ordinance,” and that the amount of the city’s contribution shall be computed upon the basis of an actuarial valuation of the assets and liabilities of the retirement system under such tables. It thus passes to the board the power to determine which tables shall be adopted, and, of course, the amount of the city’s contribution depends on which tables are selected. If the board of trustees has this power, then the making of appropriations and, indirectly, the power to impose taxes has been partly delegated to an administrative board which is not responsible to or subject to the control of the people of the municipality. This would be contrary to the fundamental law as embodied in the home-rule act. The recommendation of the board of trustees is very valuable and ordinarily it would be followed. However, it is directory and not mandatory.
It is charged that the mayor, for political reasons, in a year in which he was running for re-election, vetoed the amount recommended by the board of trustees so as to lower the tax rate of the city. By the same token, if such were the case, he and the council were responsive to the will of the people as expressed at the polls at the next election. The mayor claimed that there was sufficient money in the retirement fund. It was further shown that litigation was pending in this Court by which the amount to be paid into the retirement fund was questioned. See Hubbard v. Board of Trustees of Dearborn Retirement System, supra, in which the mayor partly prevailed. It resulted in a savings of a not inconsiderable amount if spread over a period of 21 years.
The trial judge stated in the opinion in the instant case that ordinance No. 210 was in conflict with the discretionary power vested by the charter in the common council, and that under the ordinance the power to determine the amount of money to be raised by taxation was diverted from the council and mayor, where the charter vests it, to the board of trustees. He further stated:
“The ordinance itself is in conflict with these discretionary provisions of the charter. Under it the power to take money by taxation is diverted from the council and the mayor to .another source. The Dearborn council is elected by the people year by year. Every year they must go back to the voters and account to the voters for their trusteeship in financial matters. This $140,000 under this contention and in this- regard is not appropriated by the-council. The power to appropriate it - is taken by the ordinance away from the council and is reposed in the judgment and discretion of the trustees of the retirement fund and of their hired actuary. These trustees are not elected by the people, nor is the actuary.
“Can an ordinance of the city of Dearborn have the effect of amending or repealing express provisions of the charter? The answer, of course, is, No,’ as to ordinances adopted by the council in the ordinary way. This» ordinance was adopted under the initiative and under the city charter such an ordinance can be amended only by the initiative. It is 'binding mandatorily upon the members of the council. I am of the opinion that the power of the initiative is not unlimited. There are two ways in which it can be exercised. It can be exercised by way of adopting amendments to the city charter. Such amendments do, of course, have the effect of changing the city charter. Or, it can be exercised by way of the adoption of ordinances as this ordinance was adopted.
“T think common sense dictates that under these circumstances an initiated ordinance cannot be so broad as to change the intent and meaning of the city charter. It is adopted under the city charter and not as an indirect amendment of it. Given the effect contended for by petitioners it has the effect of destroying the discretionary power of the money-appropriating body, the council. It also has the effect by necessary implication of destroying the right of the mayor to veto individual items in the city budget. The position of petitioners therefore on this point is not sound.” .
The trial court, however, held that there was a contract between the employees and the city, under which the employees are bound to contribute 5 per cent, of their earnings and the city is bound to contribute the amount determined by the board of trustees. We are not in accord with this conclusion. The city has in no sense defaulted on payments of any amounts due to any employees. There has been no breach of any contract, nor does the council and mayor think there will be if the appropriation is' not made for the year. Were the city to repeal the ordinance and endeavor to keep the amounts paid in by employees, the question of breach of contract might arise. We do not anticipate such a condition, and therefore, need not discuss it, The rights of municipal employees in pension funds is fully discussed in Brown v. City of Highland Park, 320 Mich. 108.
We believe the circuit judge erred in issuing a writ of mandamus and the order is reversed and set aside, but without costs, a public question being involved.
Btjshnell, C. J., and Sharpe, Boyles, Reid, North, Dethmers, and Carr, JJ., concurred. | [
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Dethmers, J.
Plaintiff filed a petition in the Wayne county probate cpurt for probate of the will of Frederick G. Clayton. Paragraph 5 of the will reads, in part, as follows :
“Subject to the foregoing bequests and in consideration of the fact that certain employees of the F. G. Clayton Company have been faithful to its interests and to my interests, I deem it only right to make gifts to them, such gifts however to be provisional and contingent upon their continuing as active employees and actively engaged in the business carried on by the F. G. Clayton Company at the time of my death. It is my will that in case any of said persons herein named in this paragraph shall not be actively connected with said business now carried on by the F. G. Clayton Company, at the time of my death, then the gift to that one herein named shall be void and without force.
“On the conditions herein named I give to A. J. Steiner 5,000 shares of the capital stock of the F. G. Clayton Company; to James H. Neubauer 5,000 shares of said stock; to J. W. Thompson 1,000 shares; to George W. Thomas 1,000 shares.”
Paragraph 12 reads, in part, as follows:
“Subject to the provisions heretofore made in this will, I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal or mixed, and wherever the same may be situated, to the Security Trust Company, of Detroit, Michigan, in trust, for the lives of Caroline O. Donohue, my sister, and James H. Neubauer, my nephew. I direct that the net income from said trust property shall be paid one half to my sister during the term of her natural life, to be paid to her at least quarterly or more often if necessary and advisable, and the other one half of the net income from said trust property I direct shall be paid to my nephew, James H. Neubauer, during the term of his natural life, to be paid to him at least quarterly or more often if necessary and advisable. On the death of either of said beneficiaries the one half interest so held in trust for the deceased beneficiary shall be continued in said trust property for the benefit of the surviving beneficiary, the net income of the whole trust property to be paid to her or him as herein provided, the intention being that the property so held in trust shall continue to be held in trust for the lives of the two persons mentioned in this paragraph. On the death of both of said beneficiaries, Caroline O. Donohue and James H. Neubauer, all of the property so remaining in trust I give, devise and bequeath one half to the legal.heirs of Caroline O. Donohue, share and share alike, and the other half to the heirs of James H. Neubauer, share and share alike.-’ ’
Defendants, three heirs at law, filed objections to probate of the will on the grounds, generally, that James H. Neubauer was not, as described in paragraph 12, the nephew of testator, and that he was not in the employ of the F. G. Clayton Company or of testator at the time of the latter’s death, and prayed that it be denied as the will of Frederick G. Clayton “as affecting or benefiting in any manner” James H. Nenbaner.
The contest over admission of the will to probate was certified to the Wayne county circuit court upon stipulation. That court, being of the opinion that defendants’ objections involve the construction of the will and are matters for after consideration, declined to .pass on the rights of James H. Neubauer under the will and admitted it to probate. Defendants appeal.
In Dudley v. Gates, 124 Mich. 440, this Court said:
“Courts of probate have only such jurisdiction as is conferred by statute. Const. [1850] art. 6, § 13. They are not empowered to construe wills when presented for probate. The sole question, then, is, Did the testatrix execute the will? Parties in interest may appear and contest it on the ground that it was not properly executed, or was obtained through undue influence, or was forged, or that the testatrix was incompetent. If it is admitted to probate, its construction is a matter for after consideration.”
In the case of In re Barney’s Will, 187 Mich. 145, 164, this Court considered what issues are properly before the court on petition to admit a will to probate and said in relation thereto:
“It would be singular if the probate court was to assume to decide that because of the laches of a custodian of a will, or of a legatee or devisee, it would not determine the validity of a will presented for probate; more singular if it should assume to determine that the paper propounded was a will, but that, for various reasons, the legatee, or devisee, could claim no rights under it.”
Tbe ultimate question raised by tbeir objections is not, as suggested by defendants, whether tbe will was revoked in part subsequent to its execution, but ratber whether Neubauer is entitled to take under tbe terms and conditions of tbe will. As tbe circuit court properly held, that question is not before tbe court on a petition to admit tbe will to probate, but involves tbe construction of tbe will which is a matter for after consideration.
Tbe order of tbe circuit court admitting tbe will to probate is affirmed. Costs to plaintiff, Detroit Trust Company.
Bushnell, C. J., and Sharpe, Boyles, Reid, North, Btjtzel, and Carr, JJ., concurred.
See Const. 1908, art. 7, § 13.—Reporter. | [
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Dethmers, J.
(for affirmance). Defendant appeals from the department of labor and industry’s award granting compensation to plaintiff, under part 2 of the workmen’s compensation act, for disability re- suiting from a personal injury which arose out of and in the course of his employment without the happening of an accident or fortuitous event.
Employed by defendant as a core setter for over two years immediately preceding his injury, plaintiff was accustomed to setting from 90 to 125 jacket cores, weighing around 80 or 90 pounds, and lifting possibly two boxes of Hubbard cores, weighing close to 150 pounds, per day. On February 5, 1946, he engaged in the usual amount of lifting. At about 1:30 p.m. he lifted a box of Hubbard cores from a line approximately two feet above tbe floor, swung it around to one side and set it down upon the floor. As he did so, he felt a click and a sharp pain in his back, the pain shooting down through his lower left hip. He continued work until his usual quitting time at 3:30 p.m., but has been unable to work since then. About a year before plaintiff had felt a little kink in his back while working, and previously had complained about the work being too heavy and hurting his back, but never prior to February 5th had he felt the same pain in his back experienced that day.
A doctor, called as defendant’s witness, testified that X-ray pictures of plaintiff’s back, taken eight months after the injury, disclose a destructive lesion involving the fifth lumbar vertebra, and that the most probable diagnosis as to cause thereof is infection, with a possibility of cancer or malignancy of the vertebra; that the period of time during which this destructive process had been going on could not be determined (thus failing to indicate whether it ante-dated the injury of February 5th or not); that when such destructive process exists in a vertebra, heavy lifting could cause the vertebra to quash down or crumble and give the appearance which he testified was presented by the X-ray pic- fares. Accordingly, defendant urges that plaintiff’s disability results from a pre-existing diseased condition aggravated by a nonf ortuitous happening and that it is, therefore, under the holding of this Court in Hagopian v. City of Highland Park, 313 Mich. 608, noncompensable.
. Plaintiff’s doctor, on the contrary, testified that X-ray pictures disclose a compression' fracture of the spine; that this could result from weight lifting, particularly while the body was being turned to one side; that, based upon his examination of the pictures and of plaintiff and his knowledge of the history of the case, it was his opinion that plaintiff’s injury and resulting disability were due to plaintiff’s lifting the 150-pound box and swinging it to one side as he was setting it down.
The department found that plaintiff’s disability did not arise from an aggravation of a pre-existing condition, but stemmed directly from lifting the 150-pound box on February 5th. In this it is supported by the testimony of plaintiff’s doctor. We do not disturb the department’s findings of fact which are supported by competent evidence.
In consequence, there remains for consideration the question of whether a disability resulting from a personal injury which arose out of and in the course of employment, after the effective date of Act No. 245, Pub. Acts 1943, is compensable under part 2 of the workmen’s compensation act when such injury was .not occasioned by an accident or fortuitous event.
This question was duly considered and answered in the affirmative in an opinion written by Mr. Justice Bushnell in Anderson v. General Motors Corp., 313 Mich. 630, signed by three members of this Court and approved by the three additional members who signed the concurring opinion of Mr. Justice North, in which concurrence was predicated on no different grounds than an affirmative answer to this question.
Subsequently, the continued adherence of a majority of this Court to the majority view in the Anderson Case has been brought into question in Kasarewski v. Hupp Motor Car Corp., 315 Mich. 225, and in Samels v. Goodyear Tire & Rubber Co., 317 Mich. 149. The instant case affords an opportunity for clarification.
Defendant quotes language from Mr. Justice Butzel’s opinion in Hagopian v. City of Highland Park, supra, indicating that it was therein held that the 1943 amendment did not remove the element of accident or fortuitous event as a prerequisite to the right to recover for a disability resulting from personal injury. It should be noted that this opinion was signed by but four members of this Court, with a fifth concurring in the result. Furthermore, the precise question before the Court in that case must be borne in mind. It was found, as a matter of fact, that plaintiff’s claim was based on the aggravation of a pre-existing disease. The majority holding is well epitomized in Justice Butzel’s opinion as follows :
"The amended act itself was not intended to cover aggravation of pre-existing disease without an accident or fortuitous event. ’ ’
The opinion concludes by quoting from the 1943 amendment the following:
" 'Ordinary diseases of life to which the public is generally exposed outside of the employment shall not be compensable.’ ”
The observation follows that, with the inclusion of this language, it can hardly be said that the 1943 amendment broadens the act to allow an award in a .case of aggravation of a pre-existing disease without an accident or fortuitous event. That the Hagopian Case decides no more than this is clearly stated, by three of the five justices who composed its majority, in the concurring opinion written by Mr. Justice North in the Anderson Case.
But the decision in the Hagopian Case has no application, as explained in Justice North's.concurring opinion in the Anderson Case, in'instances involving a disability which is due solely to a nonaccidental or nonfortuitous personal injury arising put of and in the course of employment, as in the instant case.
Mr. Justice Bushnell’s opinion in the Hagopian Case directs attention to the number of instances in which the words “accident” and “accidental” were eliminated from the act by the 1943 amendment and the term “injury” substituted for the terms “accident” and “accidental injury.” His opinion in the Anderson Case points out that this was not done'inadvertently or merely for the purpose of substituting a term which would have equal application to accidental injury and occupational disease, but rather that the legislature acted in response to a specific committee recommendation to abolish the requirement that an injury must be accidental to make a resultant disability compensable. For these and other reasons advanced in these two opinions, which need.not be repeated here, I am persuaded that it was the legislative intent, in enacting the 1943 amendment, that disabilities resulting from personal injuries (as distinguished from disabilities resulting from the aggravation of pre-existing disease or condition) which arise out of and in the course of employment should thereafter be compensable, even though not occasioned by accident or fortuitous event.
The award of the department granting plaintiff compensation, therefore, is affirmed, with costs to plaintiff.
Bushnell, C. J., and Reid and North, JJ., concurred with Dethmers, J.
Butzel, J.
(for reversal). Part 2, §1, of Act No. 10, Pub. Acts 1912 (1st Ex. Sess.)/the original enactment of the workmen’s compensation act, read as follows so far as material to this case:
“If an employee * * * receives a personal injury arising out of and in the course of his employment, * * * he shall be paid compensation.” 2 Comp. Laws 1929, § 8417 (Stat. Ann. § 17.151).
This provision has been amended only once (by Act No. 245, Pub: Acts 1943) and it now reads as follows:
“An employee, who receives a personal injury arising out of and in the course of his employment, * * * shall be paid compensation." Comp. Laws Supp. 1945, § 8417, Stat. Ann. 1947 Cum. Supp. § 17.151.
It is obvious that no substantial change has been made in this provision during the 35 years the workmen’s compensation act has been in effect in this State. This section contains the key to the whole act, being the one which gives the employee a right to be paid compensation, and it is the ultimate basis of all cases decided under the act.
Prom the outset this Court has held that the above quoted provision does not authorize the payment of compensation for all personal injuries suffered by an employee, but for accidental injuries only. Adams v. Acme White Lead & Color Works, 182 Mich. 157 (L. R. A. 1916 A, 283, 6 N. C. C. A. 482, Ann. Cas. 1916 D, 689), in which we held that this was dictated by the fact that the title of the act was significant in describing it as one to provide ‘ ‘ compensation for the accidental injury to or death of employees. ’ ’ Thus,, under the original act, only accidental personal injuries arising out of and in the course of employment were compensable, Occupational diseases and other disabilities caused by the employment were not compensable.
Compensation for occupational diseases was provided for by the so-called “occupational diseáse amendment,” Act No. 61, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 8485-1 et seq., Stat. Ann. 1947 Cum. Supp. § 17.220 et seq.). This amendment contained a schedule of specific diseases for which compensation was to be payable if the disease was contracted in the manner therein specified. For example, silicosis was made compensable when it was caused by mining, and pneumoconiosis was made compensable when it was caused by quarrying, cutting, crushing, grinding or polishing of metal. It was held in Sutter v. Kalamazoo Stove & Furnace Co., 297 Mich. 226, that a molder in a foundry who contracted silicosis and pneumoconiosis was not entitled to compensation because he was not engaged in mining or in quarrying, cutting, crushing, grinding, or polishing of metal.
The impossibility of providing a schedule of diseases broad enough to include all occupational diseases which, should be compensable became apparent, and by Act No. 245, Pub. Acts 1943, the legislature struck the schedule from the act and substituted therefor a provision which furnishes general coverage of all occupational diseases and disabilities. This was accomplished by defining the term “per sonal injury” as follows in section 1 (c) of part of the act:
“The term ‘personal injury’ shall include a disease or disability which is due to causes and conditions which are characteristic of and peculiar to the business of the employer and which arise out of and in the course of the employment.” Comp. Laws Supp. 1945, § 8485-1; Stat. Ann. 1947 Cum. Supp. § 17.220.
The section immediately following (part 7, § 2) provides that the disablement of an employee resulting from such disease or disability shall be treated as the happening of a personal injury within the meaning of the act.
This is the only definition of the term “.personal injury” contained in the act. It is obviously not an all-inclusive definition. It merely states that the term “shall include” diseases or disabilities which are “due to causes and conditions which are characteristic of and peculiar to” the employer’s business, and which arise out of and in the course of employment. This definition does not in any way affect the- meaning which had previously been attached to the term “personal injury” as used in part 2, § 1, of the act. It merely gives the term an additional meaning. Thus, to qualify-for compensation benefits, a claimant must establish either that he has sustained an accidental injury arising out of and in the course of his employment, in which event he is claiming directly under part 2, § 1, or that he has aii occupational disease or disability which is due to causes and conditions which are characteristic of and peculiar to the business of the employer and which arose out of and in the course of the employment, in which latter case he is claiming under part 7 of the act. Mr. Justice Dethmers’ opinion would award compensation to a claimant who has not es tablished either of these propositions. He has taken the position that by Act No. 245, Pub. Acts 1943, the legislature so changed the workmen’s compensation act that it is no longer necessary that an injury be caused by an accident or fortuitous event for it to be compensable under part 2, § 1, of the act. He states that he is persuaded such was the legislative intent. A careful reading and analysis of the amendment does not leave me with the same impression.
Important changes were made in the act by the 1943 amendment in addition to the broadening of coverage as to occupational diseases already pointed out. The form of the act was changed from that of an “elective” act to that of a “compulsory” act, the employer’s and employee’s right to “elect” to be bound by the act being taken away. Also, the maximum and minimum amounts of benefits payable were generally increased, and the provision which requires the employer to furnish medical, surgical .and hospital service to an injured employee was changed so as to require that such services be provided for a longer period than previously. Several alterations were made in the procedural provisions of the act" and in the provisions touching upon the administration of the act. Numerous changes in phraseology were necessary to accomplish these modifications, but none of them affect the instant case.
My Brother points out that in a number of instances the words ‘ ‘ accident ’ ’ and ‘‘ accidental ’ ’ were eliminated from the act by the 1943 amendment and the term “injury” substituted therefor. This indicates to him. that the legislature intended to change the coverage of part 2 of the act to include nonaccidental as well as accidental personal injuries arising out of and in the course of the employment. That is not my interpretation of the change in phraseology. Such a change was made, for example, in part 1, § 10, which read as follows prior to 1943:
“Where any employer * * * contracts with any other pprson, * * * who is not subject to this act and who does not become subject to this act prior to the date of the accidental injury or death for which claim is made,” et cetera, 2 Comp. Laws 1929, § 8416, Stat. Ann. § 17.150.
The italicized word “accidental” was stricken out by the amendment. It is my belief that this word was stricken out because of the amendments made to part 7 of the act previously discussed. In addition to the meaning which the term “personal injury” had been construed to have in connection with its use in part 2, § 1, of the act, the legislature assigned the additional meaning to it that it ‘ ‘ shall include” diseases or disabilities due to causes and conditions which are characteristic of and peculiar to the business of the- employer and which arise out of and in the course of the employment. Such disabilities or diseases need not originate from an accidental cause. Thus, it was appropriate for the legislature to eliminate the word “accidental” in the above section, intending that the word “injury” as used therein should be given the same broad meaning as the term “personal injury.”
Part 2, § 1, was amended by adding the following sentence to it:
“The term ‘time of injury’ or ‘date of injury’ as used in this act shall in the case of a disease or in the case of an injury not attributable to a single event be the last day of work in the employment in which the employee was last subjected to the conditions resulting in disability or death.” Comp. Laws gupp. 1945, § 8417; Stat. Ann. 1947 Cum. Supp. § 17.151.
It is contended that if it was the intention of the legislature to compensate for a personal injury due to a single event only if such event was an accidental occurrence, then the word “accident” undoubtedly would have been used rather than the term ‘ ‘ single event. ’ ’ Such reasoning does not appeal to me. An injury attributable to a “ single event, ’ ’ i. e., an accidental or fortuitous event, is clearly compensable under the construction which the court has heretofore placed upon the workmen’s compensation act. There was no necessity for the legislature to add the quoted sentence to the act so far as compensation' coverage for accidental injuries was concerned. The quoted sentence refers to the broadened meaning which has been assigned to the term “personal injury” in part 7 of the act, i. e., to occupational diseases and disabilities due to causes and conditions which are characteristic of and peculiar to the employer ’s business. The quoted sentence from part 2, § 1, supra, means that the date of injury of an occupational disease or disability which is compensable under part 7 of the act shall be the last day of work in the employment in which the employee was last subjected to the conditions which resulted in disability or death. The use of the word “conditions” is significant. It refers, in my opinion, to conditions which are ‘ * characteristic of and peculiar to” the employer’s business.
In sections 7, 11, 12 and 15 of part 2, the word “injury” was substituted for the words “accident” and “accidental” in several places. Thus, in section 7, the phraseology was changed from ‘ ‘ Questions as to who constitute dependents * * * shall be determined as of the date of the accident to the employee” to “shall be determined as of the date of the injury to the employee. ’ ’ This does not indicate to me that the legislature intended to make nonacci dental personal injuries compensable under part 2 of the act. When the act is read as it stood before and after the 1943 amendment, it is evident that the legislature intended not only to make substantive changes, hereinbefore discussed, but also to revise and edit the act so that its provisions -make up an integrated and complete whole. The act must be read and construed in its entirety, and each provision must be deemed to have a relationship to the others. Part 7 is incomplete unless the other parts of the act are read in conjunction with it, and, by changing the phraseology in the provisions cited, the legislature more firmly united part 7 to the rest of the act.
It is significant that where the legislature intended to make a substantial modification of the act, it expressed its intent by the use of specific and definite language. No provision can be pointed to where the legislature, by such language, expressed its intent to make the change advocated in the instant case.
The case of Anderson v. General Motors Corp., 313 Mich. 630, is doubtful authority for the stand which Mr. Justice Dethmers has taken, especially when it is read in the light of Hagopian v. City of Highland Park, 313 Mich. 608, decided the same day. Subsequently, the issue was again presented to this Court in Samels v. Goodyear Tire & Rubber Co., 317 Mich. 149, and, in my opinion, that case settled the law. We there affirmed an award of compensation to a claimant who suffered from epicondylitis, an inflamation of the muscles in the region of the elbow joint, attributable to seven months of strenuous work as a tire builder. Three justices based their affirmance of the award on the ground that the claimant was disabled by an occupational disease or disability which was compensable under part 7 of the act. Three justices concurred in affirmance on the ground that plaintiff had sustained a personal injury which was compensable under part 2 of the act. Two. justices dissented from affirmance on tbe ground that there had been no finding of fact by the department of labor and industry that'claimant was entitled.to an award of compensation under part 7 of the act, and held that the cause should have been remanded to the department for’such a finding. Consideration of this dissenting opinion with the opinions of the first three justices will show that a majority of the Court were agreed that, to be compensable under part 2 of the act, a personal injury must result from an accidental or fortuitous event arising out of and in the course of the employment.
It should be pointed out that the Hagopian Case, supra, has never been overruled, but, on the contrary, its rule has been followed in Riley v. Kohlenberg, 316 Mich. 144, Poindexter v. Department of Conservation, 316 Mich. 235, O’Neil v. W. R. Spencer Grocer Co., 316 Mich. 320, and Cromie v. Florez, Inc., 317 Mich. 516. In the latter case, the entire Court concurred in denial of compensation on the ground that:
“Upon the record in this case, it cannot be said that the claimant has proved that deceased sustained an accidental injury arising out of and in the course of his employment.”
In Mooney v. Copper Range Railroad Co., 318 Mich. 120, we held that the aggravation of a preexisting diseased condition by accidental means was compensable. Such decision does not conflict with the Eagopian Case, in which we held that aggravation of a pre-existing diseased condition by nonaccidental means is not compensable. This decision was made directly in the face of the provision in part 7, §1 (o) of the act that “ordinary diseases of life * * * shall not he compensable.” (Comp. Laws Supp. 1945, § 8485-1; Stat. Ann. 1947 Cum. Supp. § 17.220.) There is no logical reason for holding that an ordinary disease of life is compensable under part 2 of the act when aggravated or accelerated by an accident or fortuitous event in the course of employment if we are to hold that a personal injury need not be accidental in origin to be compensable thereunder. The theory upon which compensation was awarded in the Mooney Case was that accidental personal injuries are compensable under part 2 of the act without regard to the provisions of part 7 of the act. If we hold that it is no longer necessary that a personal injury be of accidental origin to be compensable under part 2, then, logically, we must give the quoted clause in part 7, § 1 (e) an interpretation. which will preclude recovery under all circumstances where the claimant is suffering from an ordinary disease of life.
The same reasoning applies to cases in which we have held that a pre-existing hernia which is aggravated by an accidental or fortuitous event in the course of employment is compensable under part 2 of the act even though the act provides in part 7, § 1 (c), that a hernia must be “clearly recent in origin and-result from a strain” in order to be compensable. See Kasarewski v. Hupp Motor Car Corp., 315 Mich. 225, in which this question is discussed.
If my Brother’s interpretation of the workmen’s compensation act is correct, then, in that respect, the act is plainly unconstitutional in.that its title is not sufficiently broad to encompass such an interpretation. The title of the original act read as follows:
“An act * * * providing compensation for the accidental injury to or death of employees.”
This title has been amended only once, by Act No. 61, Pub. Acts 1937, which act embraces the occupational disease amendment. It was absolutely necessary that the title be amended to make it broad enough to cover this amendment. This was done by adding the italicized words to the title as it existed before:
“An act * * * providing compensation for the disability or death resulting from occupational injuries or disease or accidental injury to or death of employees. ’ ’
It is not claimed that the legislature intended to broaden the act, as now contended, when it thus amended the title in 1937. The purpose of the change in title was merely to make it broad enough to cover the occupational disease amendment. In my opinion, the change made was not sufficient to permit this Court to interpret the statute as advocated by my Brother.
It is quite significant that in 1947 bills were introduced in the State legislature to amend the act and the title to provide compensation for nonaccidental personal injuries arising out of and in the course of employment. None of these bills were favorably acted upon by the legislature. It is not within the province of this Court to usurp the functions of the legislature and amend the act or its title by judicial interpretation in the absence of clear and express language which dictates such an interpretation.
In the instant case, the compensation commission of the department of labor and industry held that claimant is suffering from a destructive process of the spine, the cause pf which is in question, and that the claimant is not afflicted with an ordinary disease of life. They held that the disability stemmed directly from an incident when plaintiff lifted a 150-pound box of foundry cores and immediately felt a sharp pain in his back. They awarded compensation under part 2 of the act. According to plaintiff’s testimony, he had had back trouble two years previously. Although he made light df it, he did go to the first-aid department, received some light treatments, and applied a liniment to his back which a doctor prescribed for him. He said that the pain wore off and that he lo'st no time from work, although he found himself getting tired at times. He decided the work was too heavy for him, and asked several times to be taken off the job and assigned to lighter work. This was never done. The commission did find that the claimant is disabled by an injury to his spine. It is not our function to determine whether or not the injury is attributable to the work he had been performing, i. e., whether the heavy lifting which claimant was required to do over a long period of time caused an occupational disability which is due to causes and conditions which áre characteristic of and peculiar to the employer’s business.
The award should be set aside, but the case should be remanded to the department of labor and industry to determine whether or not plaintiff suffered an occupational disability under part 7 of the act, and to make an award in accordance with its findings. No costs should be allowed on this appeal.
Sharpe, Boyles, and Carr, JJ., concurred with Butzel, J.
2 Comp. Laws 1929, § 8407 et seq., as amended by Act No. 245, Pub. Acts 1943, and as last amended by Act No. 325, Pub. Acts 1945 (Comp. Laws Supp. 1940, 1945, § 8408 et seq., Stat. Ann. and Stat. Ann. 1945 Cum. Supp. § 17.141 et seq.).
See 2 Comp. Laws 1929, § 8451, as amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8451, Stat. Ann. 1947 Cum. Supp. §17.186).—Reporter.
See for example House Bill No. 235 and Senate Bill No. 251 introduced in the 1947 session of the legislature. | [
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Reid, J.
This is an action in assumpsit in which plaintiff seeks to recover for commissions for procuring orders for defendants for manufacturing war materials, which commissions plaintiff claims he earned but which were not paid him. Defendants filed a cross declaration to recover for claimed overpayment of commissions, which overpayment defendants allege is recoverable under their contract of employment with plaintiff because of renegotiation refunds agreed on by defendants with the United States government.
The trial began before a jury but the jury was waived after a considerable portion of the testimony had been taken. The trial then proceeded before the court without a jury. Plaintiff had judgment. Defendants appealed and plaintiff took a cross appeal.
Defendants Albert Olson and Fred Wiswedel, as partners doing business under the registered name of Odel Tool & Die Company, at 8820 Grinnell avenue, Detroit, were engaged in manufacturing die-cast dies, plastic molds and other related work. Plaintiff had had long experience in sales engineering and management of production shops. He engaged to work for defendants as sales engineer, production manager and business advisor and began that employment early in February, 1942, under an oral agreement by which plaintiff was to receive 5 per cent, commission on production work and 10 per cent, commission on fixture work. An agreement for plaintiff’s employment, exhibit No. 1, dated November 1, 1942, was prepared by attorney Jarl An-deer in January, 1943, and was signed but this agreement was later displaced by exhibits Nos. 9 and 10, both actually signed in October, 1943. Exhibit No. 9 was made to relate back to and is dated as of February 10, 1942. Later ’ exhibit No. 22 was prepared and signed on January 27,1944, modifying the preceding contract of employment. Exhibit No. 9 covered the period of employment, February 10, 1942 to January 1, 1943, and the parties had no agreement during that period respecting refunds of commissions on the basis of a renegotiation of prices. Exhibit No. 10, as modified by exhibit No. 22, covered the period of employment, January 1, 1943, to and including September 5, 1944, the date of termination of employment. The three exhibits are as follows:
Exhibit No. 9
‘ ‘ Telephone: Plaza 9831
Oder Tool & Die Company
8820 Grinnell Avenue
Detroit 13, Mich.
“February 10, 1942
“Mr. Harry Gee
“710 Barrington Road
‘ ‘ Grosse Pointe Park,
‘ ‘ Michigan
“Dear Sir:
“You have informed us that you have been engaged in the representation of manufacturing concerns in the Detroit metropolitan area for many years, as your business.
“You also inform us that you are sufficiently qualified to not only represent this company in a sales capacity, but also in an engineering capacity, to handle complaints, to work out details with customers and perform administrative and technical work in connection with the business which you obtain, and also in connection with other business, which we may have.
“We are prepared to offer you, therefore, an employment arrangement with the company of 5 per cent, upon the business which you obtain for the company, and to pay to you as a drawing account against your commissions, such sums as we may agree upon from time to time, but not in excess of your sales commissions, — it being understood that you will perform such administrative and technical services and such others duties as we may assign to you.
“It is further to be understood that this agreement shall terminate January 1, 1943, unless terminated at an earlier date by either party, it being-understood that this contract shall be terminable at the will of either party and that at the time of termination an adjustment shall be made of all moneys which shall be due and owing by the company to you as of the date of termination and settlement shall be made in full as of that date and this agreement can-celled.
“It is further understood that the company will pay commissions to you only on the business which the company accepts, completes delivery on, and invoices for, less any credits or other deductions allowed on said business, being the intent that the commission shall be paid on the net business received. The company reserves the right to accept or reject any business you may obtain for its consideration.
“Very truly yours,'
Odel Tool & Die Company,
By Fred Wiswedel,
Albert Olson.
“I accept the foregoing terms
of employment.
Harry Gee”
Exhibit No. 10
“Oder Tool & Die Company
“8820 Grinnell Avenue
“Detroit 13, Mich.
“January 2, 1943
“Mr. Harry Gee
“710 Barrington Road
“Grosse Pointe Park,
‘ ‘ Michigan
"Dear Sir:
“Based upon your services performed for the company during the year 1942, and your ability to represent the company in not only a sales capacity, but an engineering capacity and also technical and administrative capacity in connection with work which you have obtained for the company, and also in connection with other work of the company which has been assigned to you, we are prepared to offer you an arrangement with the company whereby the company will pay to you 5 per cent, upon the business which you obtain for the company and to pay to you as a drawing account against your commissions, such sums as we may agree upon from time to time, but not in excess of your sales commission, — it being understood that you will perform such administrative and technical services and such other duties as we may assign to you.
“ It is further understood that this agreement shall be terminable at the will of either party at which time an adjustment shall be made of all moneys which shall be due and owing by the company to you as of the time of termination, and this agreement shall be cancelled, — it being intended that commissions will be figured up to the date of termination.
“It is further understood that as a part of this arrangement the company will pay commissions to you only upon the net business which it obtains, that is, which it accepts, completes delivery on, in voices and receives payment therefor, less any deductions for returns, credits, et cetera.
“It is further understood and agreed that if for any reason the sale price upon any business brought to this company by yourself should be reduced by any act of the United States government or any branch, agency or burean thereof, that the commissions or other moneys due and owing by the company to you will be adjusted accordingly, and, further, that this agreement shall be subject to any rules or regulations adopted by either Federal or State governments pertaining to the payment of salaries, wages, commissions or any other «form-of compensation.
“Very truly yours,
Odel Tool & Die Company,
By s/ Fred Wiswedel,
s/ Albert Olson.
“I accept the foregoing terms
of employment,
s/ Harry Gee”
Exhibit No. 22
■ “Detroit, Michigan
“January 27, 1944
“Messrs. Fred Wiswedel and
“Albert Olson
“Detroit, Michigan
"Gentlemen:
“Confirming our conversation of today in reference to the terms of my contract with you under date of January 2, 1943, wherein I am acting as your sales engineer on a percentage basis, it is agreeable to me that if for any legal reason yoii should find that my commissions are not allowed in full as items of expense, that we will make an equitable adjustment in accordance with such disallowance.
“It is my further understanding that if the government should attempt to disallow what you pay me', that you will notify me immediately so that I can defend the same as a valid item of expense.
“Yours very truly,
“ Harry Gee
“ Confirmation Correct—
“Fred Wiswedel
“Albert Olson”
Defendants in their brief urge that they were justified in terminating the contract in question because of plaintiff Gee’s contemporaneous acceptance of additional employment from other manufacturers. Defendants’ attorney Langs, who drafted the two contracts, exhibits Nos. 9 and 10, testified that it was understood that Gee’s.employment was to be exclusive. It is, however, to be noted that there was no provision to such effect incorporated in the contracts. Gee, in his testimony, denies that his employment was to be exclusive but in effect says he tried to please defendants by terminating his other employments as rapidly as he fairly could do so. Defendants had the absolute right, even arbitrarily, to terminate plaintiff’s employment (which they did on September 5, 1944).
All the orders obtained by defendants from Briggs Manufacturing Company during the period covered by plaintiff’s employment were obtained by plaintiff. The commissions claimed by plaintiff are only for the orders obtained from Briggs Manufacturing Company.
The questions for us to determine are: First, are defendants entitled under the circumstances of this case to recover for alleged overpayment of commissions on prices readjusted by the renegotiation refund agreements with the Federal government? Second, is plaintiff entitled to commissions on orders procured by Mm, which orders stood as cancelled on September 5, 1944, the date of the termination of plaintiff’s employment, but which orders were later reinstated and fully carried out? Third, is plaintiff entitled to commissions on orders in process of fulfillment on September 5, 1944, which orders were afterwards completed and paid for?
We are obliged to determine this controversy on the construction we make of the contract and agreements between the parties. The cases cited,by the parties contain no contract of the same import as the contract here involved; consequently, such decisions are not of controlling importance in deciding the case at bar.
Under the heading, first as to effect of renegotiation on the commissions, we have noted above that exhibit No. 9, covering the period, February 10, 1942 to December 31, 1942, inclusive, contains no provision for adjustment of Gee’s commissions to a renegotiated price basis, and defendants can recover nothing because of renegotiation of prices for that period. However, exhibit No. 10 does contain a provision for adjustment of Gee’s commissions to a basis of renegotiated prices under certain circumstances. Agreements for renegotiation of prices for 1943 and 1944 were made by defendants with the Federal government several months after defendants terminated Gee’s employment. Plaintiff claims that the renegotiation agreements were in fact agreements for excess profits refunds .and did not amount to renegotiation of sales prices. Plaintiff was not consulted in the making of the agreements with the government.
Defendants claim they were not required by their contracts to admit plaintiff Gee to the conferences on renegotiation. Exhibit No. 22, supra, contains a clause providing that if the government should attempt to disallow wbat defendants pay plaintiff, defendants were to notify plaintiff immediately, so that he conld defend the validity of his commissions. The renegotiations would under defendants’ theory undermine the validity of plaintiff’s commissions in part at least. It should be noted that the contracts did not expressly authorize defendants to cancel by agreement with the government any part of the rights of G-ee to commissions computed on the original prices.
The defendants in several respects by their actions indicated a practical construction of exhibit No. 10, their agreement with plaintiff, and showed what they had in view as respects their own rights as to readjustment based on renegotiation, as follows :
1. Defendants did not at any time set up in their books any item of debit against plaintiff for refunds or deductions from commissions resulting from renegotiation.
2. Defendants did not by credit on account or otherwise actually pay Briggs Manufacturing Company for renegotiated price reductions for the years 1943 and 1944 (although a refund for $53,000 was made to Briggs for 1942). The renegotiation agreements did not require such payment to Briggs, although they expressed certain price reductions, which, however, were also recited as “additional profits which should be eliminated.” The renegotiation agreements merely required that the amount of the excess profits agreed upon should be paid direct to the Federal.government.
3. The renegotiations agreed on by defendants were for lump sums, including profits on orders not obtained by plaintiff. The renegotiation agreements did not specify what particular contract or contracts were renegotiated nor the amount of reduction of price in any particular contract or contracts. Plaintiff was thus left without any means of knowing or showing whether other business which he did not procure was more profitable than business procured by bim and that therefore the decrease in prices through the renegotiation might be due partly, principally or entirely to excessive profits from business with which plaintiff was not concerned.
4. Defendants represented to the government that plaintiff’s commissions were correct, and the government took no step at-any time insofar as the record discloses to bring about a direct reduction in the amount of commissions to plaintiff and defendants seem to have taken credit in their renegotiation agreements for the full amount of Gee’s commissions without any reduction for renegotiation.
The finding of the trial judge was to the effect that under the facts of this case plaintiff is not bound to adjust his commissions on a basis of renegotiated prices. We affirm that finding.
With regard to question two, there was testimony that there were contracts obtained by plaintiff before September 5, 1944, which were cancelled prior to September 5, 1944, and renewed after that date. Plaintiff claims an additional amount should be added to the judgment for 5 per cent, on such items, or a total of $2,774.20 for such additional commissions. However, there is a showing in the record somewhat explanatory to the requirements expressly recited in exhibit No. 10, to the effect that an employee in the position of plaintiff was required to satisfy, if possible, complaints of customers. This he could not do on orders that stood cancelled as of September 5, 1944, because the complaints if any would necessarily come after shipment of the goods and plaintiff was then no longer in defendants ’ em, ployment, so that he would be unable to complete Ms work for defendants as to such reinstated business. ,%The trial court found against plaintiff, on those items that were in a state of cancellation on September 5, 1944, but later reinstated, which finding we affirm.
The third question involves commissions due Gee on the orders at hand or in process of completion which were uncancelled on September 5, 1944, but afterwards were completed, goods accepted and actually paid for. The commissions for such orders were included in a judgment for $18,728.68, in which judgment was also included the balance of commissions on orders for goods which had been fully manufactured, accepted and paid for by Briggs Manufacturing Company before September 5, 1944. The two classifications of orders were grouped together and the following is the method by which the amount of the judgment was arrived at. When the testimony was nearly all taken the court had disallowed defendants’ claim as to reduction for renegotiated prices and had also disallowed plaintiff’s claim for commissions on orders taken but which were in a #state of cancellation on September 5, 1944. There seems to have been at the close of testimony discussion not shown in the record regarding research of the records of defendants by accountants. The court had announced that the computation of plaintiff’s commissions was to include not only all orders completely fulfilled and paid for by Briggs Manufacturing Company before September 5, 1944, but also all orders that were in process of manufacture Mr fulfillment for Briggs Manufacturing Company on September 5, 1944, but later fulfilled, accepted and paid for by Briggs Manufacturing Company. The court directed the accountants to make a computation upon such basis. The result of such resurvey of the books of Odel Tool & Die Company was an nouneed by defendants’ witness Gotten, and it was agreed on- that the amount, including interest, under the aforesaid rulings of the court, was $18,728.68.
In his finding the trial court stated his rulings more formally as follows:
“The court further finds that the plaintiff is entitled to commissions on such business as was in process and orders on hand as of September 5, 1944, which the defendants had obtained and/or received from the Briggs Manufacturing Company.”
The record is barren of any showing.that any of the items that were in process of manufacture and orders that were being filled on September 5, 1944, were complained about in any way or required any further attention on the part of plaintiff Gee, but on the contrary there is testimony that there were no further acts to be performed by Gee respecting such orders. We may assume therefore that as respecting those items then in process of being filled that Gee had fully performed all the services that his contract required of him.
The amount, $18,728.68, is therefore to be considered as the sum (interest included) of the unpaid commissions on orders fully completed and paid for by Briggs Manufacturing Company before September 5, 1944, plus orders in process of completion on September 5, 1944, but afterwards fully completed and paid for by Briggs Manufacturing Company. The other orders which stood as cancelled on September 5, 1944, but were afterwards reinstated and completed, were rejected by the court, as we have heretofore shown.
We consider the finding of the trial court to be a fair interpretation and construction to be placed on exhibit No. 10. It is to be noted that in the second paragraph of exhibit No. 10 the agreement speaks of “an adjustment” at tbe time of tbe termination of the contract. The adjustment is to be made of all moneys which shall be due and owing by the company to plaintiff as of the time of termination, and in the same paragraph it is further recited that commissions will be figured up to the date of termination. It is to be observed that the contract does not speak of this adjustment as a final adjustment but merely an adjustment, and in the third paragraph of the same exhibit No. 10 the agreement recites that the company will pay commissions upon the net business which it accepts, completes delivery on, invoices and receives payment therefor, less deductions, et cetera, which indicates basis and method of computation as on total net production rather than production completed at the time of termination of contract. The second paragraph provides for termination of the contract and an adjustment of such commissions due plaintiff for work performed up to that time, whereas the third paragraph prescribes a method and basis for determining the amount of such commissions,’namely, upon net business as distinguished from gross business. The third paragraph does not exclude compensation to plaintiff for - orders received, accepted and in process of fulfillment at the termination of contract on which no further work needed to be done by plaintiff. As before noted, the contract was drafted by Mr. Langs, the attorney for defendants. Any ambiguity therein is to be resólved against the defendants. We consider that the third paragraph sets forth the-basis and method of computation of plaintiff’s commissions.
We said in the case of Milligan v. Haggerty, 296 Mich. 62, 69:
“So far as practicable or legally possible, in construing a contract each and all of its provisions should be given effect; and if there is doubt as to the meaning, the conditions and circumstances surrounding the contracting parties and the subject matter with which they are dealing may be considered in arriving at a just construction.”
In Nichols v. Seaks, 296 Mich. 154, 159, this Court cited with approval 1 Williston on Contracts (Rev. Ed.), § 37, p. 100, as follows:
“In interpreting doubtful agreements a court will, if possible, attach a sufficiently definite meaning to a bargain of parties who evidently intended to enter into a binding contract and ambiguous words in an obligation should be interpreted most strongly against the party who used them. ’ ’
Plaintiff seeks to overturn the finding of the trial court as to the total amount of business obtained from Briggs Manufacturing Company for defendants, and plaintiff considers erroneous the refusal of the court to consider figures given by witness Jenuwin. Mr. Jenuwin seems to have been an employee of Briggs Manufacturing Company. He testified he was “in charge of records, et cetera, at the Briggs Manufacturing Company,” and he was asked concerning certain figures obtained from Briggs Manufacturing Company’s records but this witness did not himself take the figures from the records and says attorney Stone furnished the figures. The testimony of Jenuwin was taken in a special record with the understanding the figures would be verified by another witness later. Such verification was not furnished and the trial court properly refused to consider the testimony of Jenuwin which appears in the special record.
While the testimony of Jenuwin as to the total business procured by plaintiff is incompetent testimony and cannot be used as a basis for the judgment, yet the testimony of plaintiff Gee that the amount is “approximately $2,000,000” was given, without objection to its competency, and plaintiff was not cross-examined as to the source or means of his knowledge. Under all the circumstances, including announcement of accountants’ computation by Colten, we determine that the finding of $18,728.68 as due plaintiff is not against the great weight of the evidence.
The judgment appealed from is affirmed. This involves a denial of the relief sought by plaintiff as cross appellant as well as being an affirmance of the judgment appealed from by defendants. No costs are awarded to either party.
Bushnell, C. J., and Sharpe, Boyles, North, Dethmers, Butzel, and Carr, JJ., concurred.
See renegotiation act, 50 USCA App. § 1191, 50 F. C. A. App. 31. | [
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Carr, J.
Plaintiff instituted equity proceedings in _ circuit court to obtain a declaration of rights under the provisions of Act No. 36, Pub. Acts 1929 (3 Comp. Laws 1929, § 13903 et seq. [Stat. Ann. § 27.501 et seq.]). The amended bill of complaint alleged that during his lifetime defendant’s decedent, Herman Faust, was the owner of a Dodge automobile, and that on the 23d of April, 1944, Mr. Faust executed an instrument in writing in the following form:
“4-23-44
Detroit, Michigan.
“I, Herman Faust, at these date, turn my car and my insurance property in Cleveland and some money to Mrs. Taylor.
Sgd. Herman Faust.
Witness: Lewis M. Breest
Witness: James Zugros, Jr. ’ ’
Plaintiff further claimed that following the execution of the quoted document the automobile remained in her possession, and that shortly before his death, in September, 1944, Mr. Faust advised plaintiff that he was going to the hospital and did not believe that he .would return alive therefrom, and he at that time gave her the keys to the car, telling her in substance that the car was hers. The record does not disclose the date of the death of Mr. Faust, which occurred at some time after his removal to the hospital.
Proceedings were instituted to probate the above instrument in writing as the last will and testament of Mr. Faust. Following a hearing, the probate court held’ that the document was not a will and hence not entitled to probate. It does not appear that any appeal was taken from such decision.
Plaintiff further asserted in her amended bill of complaint that she was entitled to the automobile in question, as against the defendant administrator, on the theory that it was a gift to her inter vivos under the writing executed by Mr. Faust in April, 1944, or, in the alternative, that it was a gift causa mortis by virtue of what Mr. Faust said and did immediately prior to his entering the hospital. The court was asked to make a determination of rights accordingly, and to require the defendant to transfer and assign the title of the automobile to plaintiff. Defendant by answer denied the material averments of the bill of complaint, and further asserted that a valid gift of the automobile to plaintiff could not have been made except by indorsing the certificate of title in accordance with 1 Comp. Laws 1929, § 4660, as amended by Act No. 160, Pub. Acts 1935 (Comp. Laws Supp. 1940, §4660, Stat. Ann. §9.1474). Admittedly, such indorsement of the certificate of title was not made. On the trial in circuit court, testimony was offered on behalf of plaintiff, tending to support the allegations of fact in the bill of complaint. The trial court came to the conclusion that there was no valid gift, because of the failure to comply with the statute in question, and accordingly entered a decree for the defendant, declaring the automobile to be an asset of the estate. Prom such decree, plaintiff has appealed.
The section of the statute above cited reads as follows:
“Sec. 3. In the event of the sale or other transfer after October 1, 1921, of the ownership of a motor vehicle for which a certain certificate of title has been issued as aforesaid, the holder of such certificate shall endorse on the back of same an assignment thereof with warranty of title in the form printed thereon with a statement of all liens or encumbrances on said motor vehicle, sworn to before a notary public or some other person authorized by law to take acknowledgments, and deliver the same to the purchaser or transferee at the time of the delivery to him of such motor vehicle, which shall show the payment or satisfaction of any mortgage or lien as shown on the original title. The purchaser or transferee, unless such person is a dealer licensed under section 14 of this act, shall within ten days thereafter present such certificate, assigned as. aforesaid, to the secretary of State, accompanied by a fee of one dollar, whereupon a new certificate of title shall be issued to the assignee: Provided, however, If such person shall, in such manner and form as the secretary of State prescribes, authorize and direct the delivery of the certificate of title to some other designated person, firm or corporation, delivery shall be made accordingly. It shall be-the duty of the secretary of State, in all certificates of title hereafter issued, to provide suitable space for such authorization. Said licensed dealer shall on selling or otherwise disposing of said motor vehicle, execute and deliver to the purchaser thereof an affidavit of conveyance or assignment in such form as the secretary of State shall prescribe, to whieh shall be attached the assigned certificate of title received by such dealer. It shall also be the duty of such licensed dealer to notify the secretary of State on forms provided by the department of State of any used car held for sale for a period greater than thirty days, such signed form to become part of the transfer record -filed by the department of State. The purchaser of said motor vehicle shall within ten days from purchase of such motor vehicle, apply for and receive from the secretary of State a certificate of title. Said certificate, when so assigned and returned to the secretary of State, together with any subsequent assignments or reissues thereof, shall be retained by the secretary of State and appropriately filed and indexed for a period of six years: Provided, "When the ownership of any motor vehicle shall pass by operation of law, the person owning .such mbtor vehicle, may, upon furnishing satisfactory proof to the secretary of State of such ownership, procure a title to said motor yehicle regardless of whether a certificate of title has ever been issued. In event of the death of an owner of one or mdre motor vehicles whose total value does not exceed five hundred dollars who does not leave other property necessitating the procuring of letters of administration or letters testamentary as is required in section 1 of chapter 53 of the judicature act of 1915, being section 15585 of the compiled laws of 1929, the surviving husband or wife or next of kin in the order named in section 2 of the said chapter, being section 15586 of the compiled laws of 1929, may make application for title, after first having furnished the secretary of State proper proof of the death of the registered owner, attaching thereto an affidavit setting forth the fact that said applicant is the surviving husband or wife or next of kin and upon proper petition, the secretary of State shall furnish applicant with a certificate of title.’’
This section was further amended by Act No. 272, Pub. Acts 1945. For obvious reasons, we are not concerned in this case with such amendment. The question at issue must be determined with reference to the statute as it read at the time of the transactions involved in the instant controversy.
The section quoted is section 3 of Act No. 46, Pub. Acts 1921. As amended by Act No. 16, Pub. Acts 1923, the title reads as follows:
“An act to protect the title of motor vehicles within this State; to provide for the issuance of certificates of title and evidence of registration thereof; to regulate purchase and sale or other transfer of ownership; to facilitate the recovery of motor vehicles stolen or otheiwise unlawfully taken; to provide for the regulation and licensing of certain dealers in used and second hand vehicles as herein defined; to prescribe the powers and duties of the secretary of State hereunder; and to provide penalties for violation of the provisions hereof.”
Said title, as well as" the provisions of the body of the act, clearly indicates a legislative purpose to protect the public against fraud and imposition in transactions involving the titles of motor vehicles, and to discourage larceny, and unlawful disposition of such vehicles. This Court in prior cases has construed the statute, applying the general rule that it is to be interpreted in accordance with the general purpose sought to be effectuated by it. In Endres v. Mara-Rickenbacker Co., 243 Mich. 5, it was held that an attempted sale of a motor vehicle, without complying with the statute as to indorsement of the certificate of title, was void. In commenting on the purpose of the act, it was said:
‘£ The act is designed to discourage and to prevent stealing of automobiles, to protect the public against crime. It states definitely a rule of sale or transfer of automobiles, and it provides the stated penalty for violation thereof.”
In Noorthoek v. Preferred Automobile Insurance Co., 292 Mich. 561, 566, it was said:
“The owner of an automobile within the contemplation of the law of this State is the person who has the certificate of title thereto. A person is the owner of an automobile when the title is registered in his name. Title follows a certificate of ownership. A license to operate an automobile may be delivered only when a certificate of title has been issued.”
In support of the conclusion reached, the? Court cited the following cases involving the interpretation of the statute. Endres v. Mara-Rickenbacker Co., supra; Ittleson v. Hagan, 245 Mich. 56; Bos v. Holleman De Weerd Auto Co., 246 Mich. 578; Kelly v. Lofts, 253 Mich. 552; Schomberg v. Bayly, 259 Mich. 135; Kruse v. Carey, 259 Mich. 157; Kimber v. Eding, 262 Mich. 670.
It is apparent from the language of the statute above set forth that the legislature sought to cover every transaction involving the transfer of a motor vehicle from the owner to another, as well as transfer by operation of law. An intent to cover the situation fully is clearly manifested by the language used. Obviously the purpose sought could not have been fully accomplished otherwise. The words “ or other transfer,” appearing in the°title of the act and in the section quoted, must be construed as applicable to transactions other than sales. In accordance with established rules of statutory construction, the words must be given their ordinary meaning, and may not properly be regarded as merely repetitious: Obviously, the expression is sufficiently comprehensive to cover gifts, both inter vivos and causa mortis. It is essential to a gift that the title shall pass to the donee. 38 C. J. S. p. 781 et seq. The fact that it is a gratuitous transaction does not in any way deprive it of its character as a transfer of title. Molenda v. Simonson, 307 Mich. 139. While a gift causa mortis is subject to possible revocation, it necessarily involves a transfer of the title, such transfer to be effectuated in a lawful manner. In re Reh’s Estate, 196 Mich. 210.
Counsel in their briefs have called attention to decisions from other States, but it appears that in each instance the determination of the question presented°has been based on the language of a controlling statute. Such being the case, a discussion of the cases cited would serve no useful purpose. The Interpretation of the Michigan statute is clearly indicated by the decisions of this Court, above cited, and supports the finding of the trial court that there was no executed gift of the automobile to plaintiff.
Judgment affirmed, with costs to appellee.
Bushnell, O. J., and Sharpe, Boyles, Reid, North, Dethmers, and Bixtzel, JJ., concurred.
See 1 Comp. Laws 1929, § 4632 et seq. (Stat. Ann. § 9.1431 et seq.). | [
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Sharpe, J.
This is a suit for specific performance of 'a contract for the sale of 3,975 shares of stock of the Grand Rapids Gravel Company.
The Grand Rapids Gravel Company was organized about 1919. The original stockholders were plaintiff, Dewey D. Battjes, his father, Nicholas Battjes, his brother, Henry N. Battjes, and W. J. Breen. The company is engaged in producing sand, gravel and mixed concrete. Henry N. Battjes died in 1944. The Michigan Trust Company and Jessie P. Battjes were ^appointed coexecutors of his estate. There are outstanding 8,450 shares of stock in the company, of which plaintiff and his family own 2,850 shares. Plaintiff, being desirous of owning a majority of the shares of stock in this company, entered into an agreement with other stockholders for the sale of 3,975 shares of stock.
The agreement entered into reads as follows:
“December 28, 1945.
“Mr. Déwey D. Battjes
Grand Rapids, Michigan
“Dear Sir:
“The estate of Henry N. Battjes, deceased, The Michigan Trust Company and Jessie F. Battjes, co-executors, Nicholas H. Battjes, John M. Battjes, Bette L. Battjes and Jessie F. Battjes, individually, offer you for prompt acceptance for purchase certain of' the stock and other assets of the foregoing individuals and/or the Estate of Henry N. Battjes, as follows:
“1. 3,975 shares of the common capital stock of Grand Rapids Gravel Company at a price of $40 per-share.
“Note: The avails of the purchase of this stock to' be deposited in escrow with the Old Kent Bank as escrow agent, under an appropriate escrow agreement providing that the same shall be held until such time as a final decision shall be arrived at respecting the alleged claim of the United States Treasury Department (Bureau of Internal Revenue) based on a further examination of the returns being made by the special agent of the bureau for the years 1936 through 1944 with particular reference to the deductibility of certain salaries paid, and with an agreement that the shares of stock of Grand Rapids Gravel Company herein agreed to be sold shall bear their pro rata share of any such tax claim and costs and charges incurred and paid in the reasonable and proper defense of such a tax claim and that the purchase price of $40 per share shall thereupon be adjusted accordingly. Certified public accountant figures prepared and furnished by Ernst & Ernst, certified public accountants, to govern.
“2. All shares of Battjes Sand & Gravel Company held and/or owned by any of the foregoing parties at the price of $30 per share.
“3. All shares of any and all of the foregoing parties in La Mar Oil Company at the price of $15 per share.
“4. As a condition precedent to selling the foregoing stock upon the terms and at the price named, you are to agree in your own behalf and on behalf of Grand Rapids Gravel Company (appropriate action of the board of directors to be taken to effectuate such agreement) that Grand Rapids Gravel Company will properly, after the consummation of this agreement, pay to Jessie F. Battjes as royalty for gravel and/or sand removed from certain of her premises located in Wyoming- township, Kent county, Michigan, during the year 1944, the sum of $5,000; for gravel and/or sand removed from said premises during the year 1945, the sum of $7,100 and that Grand Rapids Gravel Company will purchase said lands and any and all remaining gravel and/or sand deposits located therein at the sum of $3,550 upon delivery to said company of a good merchantable warranty deed conveying title to said premises.
“5. It is understood by all parties hereto that the 3,975 shares of the common capital stock of Grand Rapids Gravel Company proposed to be sold includes 700 shares of said stock now standing in the name of Gerald J. Rocks, Libbie Rocks, Roy Peets and Elizabeth Peets. Purchaser agrees that if the sellers are unable to deliver said 700 shares of the capital stock of Grand Rapids Gravel Company that he will release the sellers from any and all liability so to do and will exercise his rights and purchase all remaining shares now standing in the name of the sellers or any of them.
‘ ‘ 6. That on the consummation of the transaction, that you will execute in your own behalf and cause Grand Rapids Gravel Company, a corporation, to execute, pursuant to appropriate action of its board of directors, a full and complete release to the estate of Henry N. Battjes, deceased, Jessie F. Battjes, individually, and/or as survivor of herself and Henry N. Battjes, deceased, and/or the executors, administrators, heirs at law, devisees, legatees and assigns of Henry N. Battjes, deceased, releasing them and any of them from any and all claims which you individually, or as a stockholder of Grand Rapids Gravel Company, and Grand Rapids Gravel Company, a corporation, now have, or may hereafter have by reason of any claim or demand, liquidated or unliquidated against the said Henry N. Battjes and the foregoing. * * *
“I hereby accept the foregoing proposal.
“/a/ Dewey D. Battjes.”
During his lifetime and while president of the Grand Rapids Gravel Company, Henry N. Battjes purchased two parcels of gravel-producing land. Title to these parcels was taken by himself and his wife, Jessie F. Battjes, as joint tenants. Prior to and after the death of Henry N. Battjes, plaintiff threatened to bring an action on behalf of the corporation to recover the'sum of $300,000 as the value of these parcels of land. Following the death of Plenry N. Battjes, the gravel company entered upon these two parcels of land and commenced taking gravel without the authority of Jessie F. Battjes, as survivor of herself and her husband. It also apears that the United States government has asserted a claim against the gravel company for wrongful withdrawal of salaries by its officers from 1936 to 1944, which has been estimated to be approximately $400,000.
Shortly following the execution of the contract of December 28, 1945, the parties entered into negotiations to formulate an escrow agreement. Each of parties prepared proposed agreements but each agreement submitted was rejected by the opposite party. About May 1, 1946, the executive committee and the board of directors of the Michigan Trust Company held a meeting and determined that the formulation of an escrow agreement acceptable to all parties was impossible. Pursuant to this determination a letter was addressed to plaintiff cancelling the contract of December 28, 1945. On August 1, 1946, plaintiff began the instant suit. On September 13, 1946, a special meeting of the directors of the Grand Bapids Gravel Company was hfeld at which time an attempt was made to procure a resolution from the board of directors of the corporation as required by paragraph 4 of the contract. This attempt was unsuccessful.
The cause came on for trial and at the conclusion of all evidence the trial court entered an order dismissing plaintiff’s bill of complaint. In a written opinion the court said:
“As appears from the findings of fact and conclusions of law proposed by defendants and adopted by this court, the parties hereto agreed to enter into an ‘appropriate escrow agreement;’ that after months of negotiation they were unable to agree upon the terms and provisions of such an agreement. This ‘escrow agreement’ was an important and material item, and failure of the parties to complete their contract injdiis regard makes it impossible for this court to decree specific performance.”
Plaintiff appeals and urges that it is not necessary for the court to make a contract for the parties as the provisions in the agreement of December 28, 1945, relative to the escrow agreement are complete; that the one purpose of the escrow agreement was to leave the money with the Old Kent Bank as security for the proportionate share of any tax claimed, plus costs and expenses; and that the parties never contemplated that action under paragraph 4 was a condition precedent.
Defendants urge that a contract which is incomplete or dependent npon the execution of a collateral or supplemental contract npon which no meeting of minds has ever occurred cannot he specifically enforced; and that defendants are under no duty to perform the contract of December 28, 1945, in the, absence of timely performance of the express condition precedent by plaintiff.
The record shows that no appropriate escrow agreement was ever accepted by all parties interested. The points upon which differences arose are: The time when the escrow- agreement would terminate; the kind of protection to be provided against the diminution of corporate assets until the amount of the United States government claim is determined and 'the claim satisfied; and the source, of the funds from which payment of the purchase price into the escrow agreement would be made by plaintiff.
In Steketee v. Steketee, 317 Mich. 100, 105, we said:
“In order that courts may specifically enforce an oral agreement to convey property, plaintiff must establish by clear, satisfactory and convincing proof the terms of such agreement.
“In Czeizler v. Radke, 309 Mich. 349, 357, we quoted with approval from Blanchard v. Railroad Co., 31 Mich. 43 (18 Am. Rep. 142), as follows:
“ ‘ “The jurisdiction of equity in specific performance proceeds on the supposition that the parties have not only agreed, as between themselves, upon every material matter, but that the matters so agreed op. are of such a nature, and the subjects of enforcement so delineated or indicated, either directly or by reference to something else, or so raised to view by legitimate implication, that the court can and may collect, and in their proper relations, all the essential elements, and proceed intelligently and practically in carrying into execution the very things agreed on and standing to be performed.” ’
“We also quoted with approval from 49 Am. Jur. pp. 35, 36, § 22, as follows:
“ ‘ “Whenever it appears that material matters are'not clear, certain and complete, hut are left by the parties so obscure or undefined that the court cannot say whether or not the minds of the parties met upon all the essential particulars, or if they did, the court cannot say exactly upon what substantial terms they agreed, the case is not one for specific performance. Equity cannot make a new contract for the parties, but must enforce the contract according to its terms or not at all; the court will not make a contract for the parties or supply any material stipulation thereof.” ’ ”
In our opinion the time when the escrow agreement would terminate and the management of the corporation during the continuance of the escrow. agreement were matters of vital importance to the defendants. These questions were to be settled in the escrow agreement, but were never agreed upon. Until all matters referred to in the agreement of December 28, 1945, were settled and adjusted between the parties, plaintiff is not entitled to specific performance of the contract.
There is also an equally compelling reason why specific performance cannot be granted. Under paragraph 6 of the agreement the Grand Rapids Gravel Company was to release all claims that the corporation has or may have against the estate of Henry N. Battjes and Jessie P. Battjes, the widow, by reason of the purchase of certain gravel lands purchased in the name of Henry N. Battjes and wife. The Grand Rapids Gravel Company was not a party to the agreement and never has agreed to effectuate such a release. Such a release to the estate and to the widow was important and was a condition precedent to the selling of the stock upon the terms and at the price named.
Tlie decree of the trial court is affirmed, with costs to defendants. »
Bushnell, C. J., and Boyles, Reid, North, Butzel, and Carr, JJ., concurred with Sharpe, J. | [
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Butzel, J.
Plaintiff, Laura B. Gray, commenced the present action against Bussell B. Gray, the Gray Hub Company, a Michigan corporation, and Harold J. Baumgartner on December 9, 1943. She had previously filed a bill for separate maintenance against her husband, Russell B. Gray, and a decree has been entered therein in her favor. An appeal was taken by Russell B. Gray in the separate maintenance suit and' decision thereon has been handed down this day. The two suits were heard together, although different relief was sought in each of them, and different decrees rendered.
In the instant suit, plaintiff first charged that her husband, defendant Russell B. Gray, entered into a joint venture with her to purchase stock in the defendant Gray Hub Company. She alleged that she had accumulated certain moneys which were deposited in a joint bank account in the name of herself .and defendant Gray, and that these moneys were used to purchase stock in the Gray Hub Company. She also charged that defendant Harold J. Baumgartner had conspired with defendant Gray to defraud her. She prayed that the court determine and decree that she was entitled to one-half of all the stock owned by her husband in the Gray Hub Company and that the said Gray Hub Company be required to record the stock on its books in her name.
Defendants moved that the bill of complaint be dismissed, whereupon plaintiff amended her bill, changing her theory of action. Each bill was sworn to by her. She claims in her amended bill that she deposited $700 which she had acquired solely through her individual effort, and belonging to her sole and separate estate, in a joint bank account with defendant Gray with an express understanding between her and defendant Gray that all of such money would be solely used to acquire stock of the defendant Gray Hub Company for her. In her amended bill she renewed the charge of fraud against Harold J. Baumgartner. The relief prayed for in the amended bill was that all of the stock of the Gray Hub Company acquired by defendant Gray with funds belonging to plaintiff’s sole and separate estate, together with all dividends past and future, be turned over to her. The bill later was again amended to include a prayer for an accounting to determine the number of shares plaintiff was entitled to. The trial court found that plaintiff had failed to establish her cause of action and dismissed the bill of complaint.
Many questions are raised, but in the view we take of the case, only one need be considered: Did plaintiff sustain the burden which was upon her'to prove the allegations in her bill of complaint? It would serve no useful purpose to review in detail the 350 pages of testimony set forth in the printed record. We have read it with extreme care, and notwithstanding the showing that plaintiff was a very fine, industrious and trusting person, who was cruelly treated by defendant, we are constrained to find that she has not proved the existence of an agreement between herself and defendant, as claimed.
It is true that on March 4, 1924, plaintiff and defendant Gray opened á joint bank account with an initial deposit, of $700. Subsequent deposits were made by defendant alone until there was a total of $2,839.83 in the account. Plaintiff does not claim that any of the money deposited in this account came from her sole and separate estate except the $700 initial deposit. The first withdrawal by defendant was in the sum of $339.83 on January 22, 1925. Subsequent withdrawals were made by. him from time to time in various amounts until the account was closed on June 27, 1927. There was no withdrawal of an amount of $700.
No showing has been made that any of the money from this account was used by defendant Gray to purchase stock of the corporation.. The testimony indicates that Gray obtained a large stock holding in the Gray Hub Company through first being able to retain a small holding he had in the original company, and then increasing his interest through his share in the large earnings of the company. Plaintiff’s claim that the $700 was supposed to be used for stock is unsupported by any testimony other than her own statement, and on cross-examination she testified that the purpose of opening the joint bank account was to “save money.”
We have no sympathy for defendant Gray. He was personally served with process in the suit, but, removed himself from the State, and thus avoided the necessity of appearing at the hearing. His testimony was taken by deposition, and we give little credence to it. However, the burden was upon plaintiff to prove her charges, and she has not done so.
The decree dismissing the bill is affirmed, with costs to defendants. '
Btishnell, C. J., and Sharpe, Boyles, Reid, North, Dethmers, .and Carr, JJ., concurred.
See Gray v. Gray, post, 49.-—Reporter. | [
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Carr, J.
Plaintiff brought suit in circuit court for the specific performance of an alleged agreement between his parents James W. Phelps and Bertha Phelps for the making of mutual reciprocal wills. Defendant is plaintiff’s sister and is also executrix under the will of her father. It is plaintiff’s claim that the agreement in question was made May 17, 1922. The proofs disclose that on that date Mr. and Mrs. Phelps went together to the office of Hon. George M. Fields, probate judge of Cass county, that they discussed with Judge Fields the preparation of a will for each of them, and that in accordance with their desires wills were prepared and executed. The instrument executed by Mrs. Phelps'gave her property to her husband for his lifetime, if he survived her, with remainder to their children. It is claimed that the will of Mr. Phelps was identical with that of his wife, except that he gave his property to her for her lifetime, if she survived him, with remainder to the same beneficiaries as were designated in her will. After their execution the instruments were left in the custody of the judge of probate of Cass, county, receipts therefor being given to the parties. The judge of probate retained custody until after the death of Mrs. Phelps in November, 1941. Her will was then sent to the probate court of St. Joseph county for probate there, and the will of Mr. Phelps was delivered to him with the understanding, as it is claimed, that he would deposit it with the judge of probate of St. Joseph county, to which county the parties had removed some years previously.
James W. Phelps petitioned for the probate of the will of Mrs. Phelps. Shortly thereafter he executed to defendant deeds of all the real estate that he owned, leaving the conveyances in the custody of the scrivener. At the time a receipt was given to Mr. Phelps, reciting that the deeds were “to be delivered to his daughter, Florence Pipher. If not called for during his lifetime.” On July 25, 1942, James W. Phelps executed another will revoking all former wills and leaving all his property to the defendant, with the exception of nominal bequests of one dollar each to his son and his grandchildren. Following his death in April, 1943, the will executed the previous July was offered for probate, and received over ob jections filed by plaintiff. From the order of the probate court admitting said will to probate, plaintiff appealed to the circuit court of St. Joseph county. The proceeding is now held in abeyance pending the outcome of the present suit for specific performance.
On the trial of the instant case in the circuit court plaintiff contended that the wills executed by his parents in 1922 were, under the agreement between the parties, mutual reciprocal wills, that under said agreement neither party had the right to revoke without the consent of the other, that there was no revocation, or attempted revocation, during the lifetime of Mrs. Phelps and that, after her death, James "W. Phelps was irrevocably bound by said agreement. The trial judge concluded, on the basis of the proofs offered before him, that an "agreement had been made between Mr. and Mrs. Phelps as claimed by plaintiff, that neither could revoke his or her will without the consent of the other, and, there having been no actual revocation of either will prior to the death of Mrs. Phelps, the husband was bound by the contract. A decree for specific performance was accordingly entered in accordance with the prayer of the bill of complaint. From such decree defendant has appealed.
On behalf of appellant it is claimed that the evidence is not of sufficient strength to justify a finding that Mr. and Mrs. Phelps entered into an agreement for the making of mutual reciprocal wills, as claimed by plaintiff. It is argued that the fact that wills executed under circumstances of the character here involved are .identical, or substantially so, is not sufficient to establish an agreement to make mutual reciprocal wills. Reliance is, placed on the decision of this Court in Eicholtz v. Grunewald, 313 Mich. 666. There, however, the instruments in question were not executed at the same time and the proofs intro duced failed to establish any agreement to make mutual reciprocal wills. In the instant case the testimony of Judge Fields, which is not disputed by other - proofs, indicates that the parties were in agreement with reference to the character of the wills to be executed by them. The following quotation from his testimony seems to summarize the situation as the witness.recalled it:
“In 1922 they said they wanted their mutual wills drawn. In such way Wills would transfer their property to their children. After drawn the wills were read to them. They said that was exactly what they wanted. I informed.them the wills were mutual.”
The will of James W. Phelps was not produced in court. It may he inferred from the record that it was destroyed by him following the death of Mrs. Phelps. However, Judge Fields testified that it was identical with the instrument executed by Mrs. Phelps, except that it gave her a life interest in the property and. named her as executrix.
An agreement of the character here in question may rest in parol. Smith v. Thompson, 250 Mich. 302 (73 A. L. R. 1389); Salsbury v. Sackrider, 284 Mich. 493; Eicholtz v. Grunewald, supra. The testimony of Judge Fields was sufficiently clear and satisfactory to justify the finding of the trial judge that an agreement was made, as claimed. Obviously, Mr. and Mrs. Phelps, in 1922, desired to act together to the end that their property might be disposed of after their deaths in accordance with their desires. The testimony as to subsequent conversations between them, hereinafter discussed, shortly before the death of Mrs. Phelps, suggests that they hdd in mind then the nature of the arrangement that they had made and the necessity for mutual acquiescence in any change or modification. We think the trial court reached the correct conclusion as to the making; of the contract for mutual reciprocal wills. The validity of the contract here involved is not questioned. Neither is there any issue presented as to the right of plaintiff to bring suit in equity for specific performance. He was a beneficiary under the agreement between his parents, and if said agreement remained in force and effect until the death of Mrs. Phelps, he is entitled to the relief sought. Carmichael v. Carmichael, 72 Mich. 76 (1 L. R. A, 596, 16 Am. St. Rep. 528); Wright v. Wright, 99 Mich. 170 (23 L. R. A. 196); Burgess v. Jackson Circuit Judge, 249 Mich. 558; Getchell v. Tinker, 291 Mich. 267; Winchell v. Mixter, 316 Mich. 151. If such was the situation, the probating of the will of Mrs. Phelps, and the acceptance of benefits thereunder by Mr. Phelps, constituted a recognition and an affirmance on his part of the contract.
Defendant claims, however, that the contract made in 1922 was abrogated before the death of Mrs. Phelps by mutual agreement between her and her husband. In the consideration of this phase -of the case it must be borne in mind that we are concerned here with the agreement between the parties for the making of the wills rather than with the wills themselves as such. In discussing a situation of similar character it was said in Keasey v. Engles, 259 Mich. 178:
“The rather common expression that a joint and mutual will is irrevocable by the survivor, after the death of one party to it, is not technically and legally correct. It is the contract to make the wij.1, not the will itself, which is irrevocable. The contract is irrevocable because a court of equity, under its fraud and trust jurisdiction, will decree its specific performance. Such decree incidentally, although by indirection, enforces the will and so the latter often is called irrevocable. Doyle v. Fischer, 183 Wis. 599 (198 N. W. 763, 33 A. L. R. 733); notes in 33 A. L. R. 739, 43 A. L. R. 1024, 57 A. L. R. 607, 60 A. L. R. 627; 28 R. C. L. p. 172; 40 Cyc. p. 2117. The distinction is important because tjie estate is conveyed by the will itself, not by the contract to make a will, and, consequently, no claim of vesting under the will can be laid upon the ground of its irrevocability. Estates are vested under a joint and mutual will in the same manner as under ordinary wills. It is only the right of action to enforce the contract, if anything, which vests in the beneficiary at the death of one of the testators.”
See, also, Eicholtz v. Grunewald, supra; Winchell v. Mixter, supra.
The mere failure to change the wills, or either of them, before the death-, of Mrs. Phelps does not of itself establish that the parties did not agree to the abrogation or modification of the contract which is the subject-matter of the suit. In 69 C. J. p. 1301, it is said:
“An agreement to make mutual wills, or the execution of wills in pursuance of such an agreement, does not bind the testators to keep the property, covered thereby, for the intended beneficiaries under such wills, or prevent them from making such other disposition of it, either inter vivos or by will, as they may desire and mutually agree, while both or all still live. ”
In Sage v. Sage, 230 Mich. 477, a husband and wife executed a joint will, specifically declaring therein that neither should have the right to revoke without the written consent of the other. In terms the instrument disposed of all property that the parties might own at the time of their death. Subsequent to its making they agreed that a daughter should receive certain property in consideration for her caring for her parents during their lifetimes. Such agreement was oral but the parties acted thereon and the husband and wife received benefits there, under. Following the death of the husband the widow deeded the property to the daughter, subject to a life lease in herself. In an action brought to set aside such conveyance it was held by this Court that the husband and wife had the right to make a new agreement, pursuant to which the daughter should receive the property in question. Commenting thereon it was said:
“If this oral agreement had been reduced to writing and Ellen had made the deed after Patrick’s death in pursuance of the agreement, there would be no question about the validity of the transaction. It was not reduced to writing, but the legal effect of the oral agreement was the same as though it had been in writing, because it was performed as to Patrick and he accepted and received all of the benefits which were to go to him by virtue of it. ’ ’
And in Smith v. Thompson, supra, the Court, in sustaining the validity of an oral undertaking between a husband and wife and in holding that it could not be abrogated by the wife after the death of the husband, said:
‘ ‘ While by mutual consent the contract might have been abrogated during the lifetime of the husband, at his death it became an irrevocable obligation on the part of the wife.”
See, also, Elmer v. Elmer, 271 Mich. 517; Getchell v. Tinker, supra; Hale v. Campbell, 46 Fed. Supp. 772; Cooke v. King, 154 Ore. 621 (61 Pac. [2d] 429, 62 Pac. [2d] 20, 107 A. L. R. 881).
It may be noted that in the case at bar it was not a part of the agreement between Mr. and Mrs. Phelps that written, consent to revocation of either of the wills executed should be required. They were not precluded from abrogating o.r modifying by parol if they so agreed. The situation is subject to general principles of the law of contracts.
In support of the claim that the parties mutually agreed to modify their contract as made in 1922, and that by such modification James W. Phelps was released therefrom, defendant offered the testimony of witnesses, apparently disinterested, as to conversations between Mr. and Mrs. Phelps not long before the death of the latter. According to the testimony of the witness Charles Welker, Mrs. Phelps stated, giving her reasons therefor, that if she had not been injured in a fall she “would have had her property changed so that Ralph would not have got any of it.” Thereupon James W. Phelps said, “I will see to it that he don’t get any of mine,” and Mrs. Phelps replied, ‘ ‘I hope you do. ” Similar testimony was given by the witness Neva Jennison Poole who testified further that Mrs. Phelps stated, in substance, .that she wanted defendant to have the property because “Florence had been so good and faithful to her.” Defendant, as a witness in her own behalf, also testified, apparently without objection, to conversations between her parents in which they indicated that they were mutually agreed that the disposition of their property, as made in the mutual reciprocal wills, would be changed so that defendant would receive it. Defendant further testified that her parents discussed the matter several times, and that her father, after her mother’s death, stated that he wished to carry out the modified agreement that he and Mrs. Phelps had made. It is defendant’s claim, in substance, that the deeds above referred to and the will of Mr. Phelps, executed in July, 1943, were intended to carry out that purpose. Obviously, the deeds were not effective because -no delivery thereof, during the lifetime of the. grantor, was shown. The.receipt given by the depositary clearly indicate^ that Mr. Phelps had reserved the right to recall the deeds, if he wished, and that the parties recognized his right to do so. Under such circumstances there was no effective delivery. Weber v. Schafer, 236 Mich. 345; Hynes v. Halstead, 282 Mich. 627.
This being an equity case it is our duty to consider it de novo on therecord before us. We think the testimony above referred to is sufficient to establish that Mr. and Mrs. Phelps desired to change the agreement-into which they had entered at the time their wills were prepared in 1922, and that they were in accord as to the changes to be made. The record further shows that because of the state of health of Mrs. Phelps-it was not feasible to have new wills prepared and executed at the time, and that it was further agreed, in the event of her inability to participate in the desired changes, that Mr. Phelps would take necessary action to insure that defendant would receive their property. The testimony of the witnesses indicates that Mr. Phelps promised his wife that he would see to it that the property was so conveyed, and that Mrs. Phelps expressly approved and accepted his promise in that regard. This agreement amounted to a modification of the original contract of 1922 and operated to release James W. Phelps from complying with the terms of said contract after the death of his wife. Sage v. Sage, supra.
The parties by mutual agreement had the right to waive the performance of the obligation that Mr. Phelps had assuméd under their contract. In the exercise of such right Mrs. Phelps did not require that he alter his will during her lifetime, nor did she base his right to make such alteration on a revocation of, or a change in, her own will. His prom ise furnished the consideration for her releasing him from his obligation. The situation presented is not affected by his failure to act prior to her death, or by the probating of her will. In the light of the understanding and agreement reached in 1941, it cannot be said that Mr. Phelps acted wrongfully in changing his will. In doing so he was merely carrying out the new arrangement made between himself and his wife shortly prior to her death. Under the record before us plaintiff is not entitled to the relief sought.
A decree will enter here reversing the decree of the circuit court and dismissing the bill of complaint, with costs of both courts to defendant.
Bushnell, C. J., and Sharpe, Boyles,.Reid, North, Dethmers, and Butzel, JJ., concurred. . | [
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Boyles, J.
These parties were married March 7, 1941, and lived together (except for 15 months while the defendant was in military service) until about January 25, 1947. Two children were born of the marriage, September 24, 1941, and May 22, 1943, respectively: On February 3, 1947, plaintiff filed a bill of complaint seeking a divorce on the ground of extreme cruelty and after issue joined and a hearing in open court plaintiff was granted an absolute divorce on May 29, 1947. The decree gave plaintiff the custody of the children, $50 attorney fees, ’ $25 per week alimony, the household furniture and furnishings, and the equity in the home wjlich the parties were purchasing on contract on which $1,045 had been paid, subject to a $500 lien which the decree allows the defendant if the place should at any time hereafter be sold. The decree also requires the defendant to continue payments on a life insurance policy for $1,000 in which plaintiff is named as" the beneficiary.
The defendant appeals, claiming that the evidence fails to prove the plaintiff entitled to a decree of divorce, and that in any event the court should not have awarded the home to the plaintiff. No question is raised as to custody of the children. The plaintiff does not cross-appeal.
We conclude that the testimony in the record justifies the trial court in granting plaintiff a divorce. After the defendant came back from the service he told her several times to get a divorce, and that he was staying just for the children’s.sake. She testified:
“He said ‘I will get out, you go ahead and get your divorce.] There were times after that I told him I didn’t want to jump right into a divorce not knowing whether I could make a go of it or not. He said several times that we will stay together until the first of the year and he told me that if I didn’t get a divorce he will go down and start it. I still waited two or three weeks after that.
“He used physical violence about two weeks before (my) starting proceedings. He said he would take his clothes and leave and then he came home and wanted me to forgive and take him back. He kept trying to love me up. and everything and I didn’t want to. I told him to quit. I kept pushing him, away and he.said you want to get rough. He grabbed me and threw me on the floor and sat on me. * * *
“On one occasion, when my husband used physical violence on me, he sat on me. He did not lay me down on "the floor very carefully. He took me and threw me on the ‘floor.
“ Q. He didn’t try to hurt you at that time l
“A. Yes, I said, ‘You hurt me, let me up out of here.’ ”
The defendant admits the truth of the charges of physical violence. There were arguments over money matters and mutual wranglings which, however, would not be ground for divorce. Kolberg v. Kolberg, 312 Mich. 42. The defendant told another that he had, gotten the plaintiff: pregnant before their marriage and for that reason'he married her. Plaintiff also was permitted to testify at length as to what the defendant said and as to matters that had occurred subsequent to the filing of her bill for divorce. She did not attempt to amend her bill of complaint and no supplemental bill was filed. See Court Rule No. 25 (1945). The testimony of subsequent matters was not admissible. Rayner v. Rayner, 49 Mich. 600. However, there is sufficient competent testimony to support the decree, without resort to such inadmissible testimony, and the decree will not be disturbed for failure to amend the pleadings. Ferguson v. Ferguson, 145 Mich. 290. On appeal in a suit for divorce it must be assumed, without convincing evidence to the contrary, that the court disregarded all evidence improperly admitted. Lukshaitis v. Lukshaitis, 314 Mich. 426.
The defendant claims that the trial court should not have awarded the equity in the home to the plaintiff. The down payment of $1,000 on the .con tract was made with money borrowed by the parties from defendant’s father. The court, in effect, divided this equity between the parties. The division of property in a suit for divorce is not governed by rigid rules. The Supreme Court does not substitute its judgment as to division of property for that of' the trial judge in a suit for divorce in the absence of a clear showing of abuse of discretion. Stalker v. Stalker, 313 Mich. 209. The court, in awarding the insurance policy to the plaintiff, properly considered the interests of the children, assuming that the award for alimony might terminate in the event of the death of the defendant. The award was within the discretion of the court.
“Hereafter every decree of divorce shall determine all rights of the wife in and to the proceeds of any policy or contract of life insurance, endowment or annuity upon the life of the husband in which she was named or designated as beneficiary.” 3 Comp. Laws 1929, §12766, as amended by Act No. 220, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 12766, Stat. Ann. 1947 Cum. Supp. § 25.131).
See, also, Minnesota Mutual Life Ins. Co. v. Hendrick, 316 Mich. 253.
The court allowed plaintiff $25 per week alimony, out of the defendant’s gross earnings of about $50 per week. She was also getting $30 per week from two boarders in the home. The decree thus gave plaintiff all of the accumulated property of the defendant, at least half of his future earnings, and required him to maintain his life insurance for plaintiff’s benefit. In view of the ages of the children — 4 and 6 years respectively — and the other circumstances of the case, we consider the award of $25 per week excessive. Plaintiff does not deny being in good health, having been employed as a waitress in a beer tavern. Tbe decree may be modified to award plaintiff $18 per week alimony, and otherwise will be affirmed. No costs awarded.
Bushnell, C. J., and Sharpe, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Sharpe, J.
Plaintiff, Edwin S. George Foundation, filed a bill of complaint to restrain defendants from trespassing upon its lands, from placing boats on tbe shore of Island lake belonging to plaintiff, from allowing persons to cross plaintiff’s premises to go to the shore of the lake, and from interfering with plaintiff in the construction of a line fence.
On July 13, 1943, plaintiff filed its bill of complaint in which it is alleged that the Edwin S. George Foundation is a charitable trust created and existing under a trust indenture dated March 4,1935; that plaintiff is the owner of lands bordering on Island lake, having become the owner of said lands through a warranty deed executed by Edwin 8. George on March 4, 1935; that defendants, Bert J. Allen and Ethel Allen, his wife, obtained title to approximately three acres of land in 1923, said land being adjacent to property owned by plaintiff; that Island lake covers a portion of plaintiff’s property; that defendants cross plaintiff’s land in order to get to the lake; that defendants have placed boats on the shore of the lake belonging to plaintiff which defendants rent, lease and loan to persons desiring them; that defendants have threatened to destroy any fence which may be erected on a line between property owned by plaintiff and defendants; and that defendants have no right to cross plaintiff’s land in order to get to the waters of the lake.
Defendant Bert J. Allen filed an answer to plaintiff’s bill of complaint and admits plaintiff is the owner of a part of the northeast one-half of the northeast one-quarter of section 18, but denies there is a common boundary line between plaintiff and defendants’ properties. He alleges that defendants have exercised open and visible control over the property in dispute for a period of more than 15 years and because of such use they have acquired title by adverse possession. He also filed a cross bill of complaint and asked that title be quieted in defendant; and that plaintiff be enjoined from trespassing upon said premises. However, during the course of the trial and on motion of his attorney, the above'mentioned cross bill was dismissed.
Defendant Ethel Allen filed an answer to plaintiff’s bill of complaint in which she denies, that the purposes set forth in the trust agreement are being-carried out or are sufficiently definite to constitute the basis for a valid trust, or that the alleged trustees are functioning according to the purport of said agreement; she denies that the deefl of March 4, 1935, executed by Edwin S. George to the plaintiff foundation makes plaintiff the owner of the land. She admits that defendants have threatened to tear down any fence which plaintiff attempts to build which would separate defendants’ property from the lake and by way of affirmative answer asserts that prior to the ownership of Edwin S. George of any property bordering on said lake, the defendants acquired the ordinary riparian rights over Island lake as a shore owner, including the right to use said water for boating, bathing, fishing and domestic use; and that said right was attached to defendants ’ land when they acquired title to the same.
Prior to the trial of said cause, defendants made a motion to dismiss plaintiff’s bill of complaint for the reason that said bill of complaint does not state facts which entitle plaintiff to relief in a court of equity; and for the further reason that no line has ever been established between the premises in dispute and plaintiff is not entitled to have the question of the location of the boundary determined in a chancery suit. The trial court denied the motion stating:
“I am of the opinion that this dispute and difference between the parties here goes far beyond the mere physical location of this fence; it seems to me that one of the main things is the right of the parties here to use boats and have access to the lake or trespass upon lands that are in the possession of the plaintiff, and the main thing here, it seems to me that the plaintiff is seeking to restrain interference with lands that might not even be remotely connected with defendants’ property.”
The cause came on for trial and at the close of all evidence the trial court entered a decree determining that plaintiff is the. owner of the northeast quarter of the northeast quarter of section 18, Bloomfield township, Oakland county, Michigan; that defendants have no right, title or. interest of any kind or nature in the lands of plaintiff; that the lands of plaintiff and the lands of defendants have a common line between them,described as follows:
“Commencing at a point on the N. and S. 8th line of the N.E. % of section 18, town 2 north, range 10 east, Bloomfield township, Oakland county, Michigan, located southerly on said 8th line 1180.09 feet from the north line of said section 18; thence easterly along the E. and W. 8th line of the N.E. % of said section 18, a distance of 495.7 feet to an iron fence post located at the N.E. corner of said Allen property, said corner -being also a corner of the vacated plat of Island lake estates, Bloomfield township, Oakland county, Michigan, this line being the line located in a survey of Wilbur S. McAlpine, being offered as an exhibit in said cause and a copy thereof attached thereto for reference.”
The decree also restrained defendants from maintaining any boats on plaintiff’s property constituí ing the shore of Island lake or entering plaintiff’s-lands; and from interfering with plaintiff in the construction of a fence-on the common line between the properties of plaintiff and defendants. .
In an opinion,,the trial court made the following finding of facts:
“Plaintiff Foundation is the’owner-of the northeast % of the northeast % of section 18, Bloomfield township, Oakland county, Michigan. Plaintiff became the owner of said premises by "warranty deed dated March 4, 1935. As the entitling of this case would indicate, said title was obtained from Edwin S. George, who became the owner of said premises by a warranty deed dated March 26, 1910. Defendants became the owners of lands in said township, described as a parcel of land in the southeast % of the northeast % of section 18, described as commencing at the northeast [northwest1?] corner of the southeast % of the northeast Pi-' of section 18, thence south 16 rods, thence east 30-rods, thence north 16 rods, thence west 30 rods to the place of the beginning, containing 3 acres of land.
“The common east and west line between the Foundation’s property as heretofore described and the defendants’ property as heretofore described, is some 100 feet from the shore of Island lake. The point of beginning in this case -must, of necessity, be a factual determination by the court of the location of the east-and-west common line between the plaintiffs ’ and the defendants’ property. To this end much of the proof taken concerns itself with, the location of said line and to the end that the court might more easily follow and evaluate said proof, the property was-viewed in detail in the presence of the attorneys, parties litigant and principal witnesses. The court finds, however, that this litigation did not have its inception over any dispute as to the common boundary line nor has the location of said common boundary line at any time been the crux of the differences existing between the parties hereto. * * *
‘ ‘ The court believes and finds that there was never any real or bona fide dispute over this common east- and-west line between the years 1910 and 1929, or for a period of 19 years, nor has there been a bona fide dispute over the location of the common fence at any time. Subsequent, however, to the year 1929 the defendants saw fit to remove the fence from the common east-and-west line. Defendants found their own yard in front of and to the side of their home too small and simply expanded the same into the nearby grove by trespassing upon the land of the plaintiffs. Colonel George, a witness herein, testified that one of the defendants asked permission to permit the Allen children to play in the grove and to erect in said grove swings. Defendant Allen likewise requested permission to fish and keep a boat upon the nearby shore of Island lake. Witness George apparently raised no objection to the use of the grove by the children nor were the defendants restrained from fishing or keeping a boat for fishing purposes upon the lake. However, it was not long before the grove was used as a parking ground for cars and the nearby shore of the lake was being used as a mooring place "for several boats used in turn by fishermen other than the Allens, and as a consequence of the foregoing the land of the plaintiffs lying between the Allen house and the shore of the lake was being tréspassed upon not only by said Allens but by strangers. The proof likewise indicates that the Allens, without the permission of the plaintiffs herein, maintained a cowpen upon the plaintiffs’ property.
“Despite the use of the plaintiffs’ property by the defendants as just recited, the defendants at no time claimed that they were within their rights from the standpoint of the location of the common east-and-west line. Apparently, even to and through the date of trial, the defendants Allen have no definite conception of where the true location of the east-and-west common line is. The simple truth as the court believes and finds it to be is this: The defendants have never questioned the fact that the common line is not where it is shown to be in exhibit 11. They have not in the past nor do they now care where said common line is. They are concerned only with there not being a fence on said common line which will hamper them in their free use of the .plaintiffs ’ property as a means of ingress and egress to Island lake and to extending their front yard into the grove for parking purpose and the like.
“The defendants’ deed calls for three acres of land. Under exhibit 11 they have three acres of land. Having in mind the lay of the land immediately adjacent to the Allen home and having in mind the inviting grove and the more inviting lake, it is easy to understand why the defendants trespassed and depredated upon the premises of the plaintiffs but said trespassing and depredations which together constitute the essence of this lawsuit, are neither legally justifiable or excusable and are without any basis of right as far as the defendants are concerned. The maintaining of the boat livery and inviting and allowing the public to congregate on the land of the plaintiffs and to use the lands of the plaintiffs constitute a nuisance. The failure to permit the fence to be built and maintained upon and along the common line amounts to a nuisance. The-actions of Mr. Allen in threatening to do bodily harm to anyone who built a fence along the common line and the tearing down of a fence built on said property under the protection of an officer are all things that ought to be enjoined by a court of equity.”
Defendants appeal and urge that plaintiff is not such a real party in interest as to entitle it to bring this suit as the only color of title in plaintiff to the land in question is a deed signed by Edwin S. George alone; that the purported trust indenture was signed by Edwin S. George only as donor; and that tbe powers of Edwin S. George support tbe claim that he, rather than plaintiff, is the real party in interest.
We note that defendants in their reasons and grounds for appeal raise the following question: “Because the court held that the plaintiffs were such real parties in interest as to entitle them to bring this action.”
In the answer filed by Ethel Allen she denies that the deed executed on March 4, 1935, makes plaintiff the owner of the land in dispute, while in the answer filed by Bert J. Allen there is an acknowledgment that plaintiff is the owner of a part of section 18 in Bloomfield township. It appears that at the close of plaintiff’s case the following occurred:
“Mr. Heitsch (defendants’ counsel): I want to renew my motion that this case be dismissed because primarily the only real issue in the case is the determination of the boundary line and there has no fixed and definite boundary been established in this case, and the whole thing here has been to determine where the boundary should be, rather than to protect the boundary that has been established at some previous time. \
“The Court: In connection with that motion, the court can only say that I ám more impressed than I was at the outset that this case involves more than the, the relief sought involves more than the mere fixing of the line.
“Would you care to make any opening statement. I am offering you the opportunity, I am not suggesting you make one unless you want to. * * *
“Mr. Heitsch: * * * We renew the motion to dismiss the case.
“The Court: That motion is denied. Tou may proceed.”
While defendants were making their case the following statement was made by Mr. Heitsch:
“The position of the defendant in this case is there never has been a boundary line established on the ground, along the line of these two properties, and that that is the question and the only question there is to be established here.”
It would appear from the above that the issue now raised was not a factor in the trial of the case.
In Phillips v. Farmers’ Mutual Fire Insurance Co. of Kalamazoo County, 208 Mich. 84 (7 A. L. R. 1606), there was involved an action on a fire insurance policy. At the close of all proofs both parties moved for a directed verdict. It was conceded that the only question of fact involved was the question of plaintiff’s damages. This question was submitted to the jury. The defendant afterwards, and before judgment was entered on the verdict, moved for a judgment for defendant non obstante veredicto. In an appeal defendant attempted to raise another question. We there said:
“In view of the concession made by him at the time the motions to direct were argued, we think he is foreclosed from raising this question.”
In view of the fact that defendants stated to the trial court that the only issue was that of the boundary line, we think they have waived the right to present for our consideration another issue, namely, the question of whether plaintiff is the real party in interest.
Defendants also urge that it was error upon the part of the trial court to permit Edwin 8. George to testify to facts equally within the knowledge of Emma Babcock, deceased. It appears tbat Emma Babcock died in 1917. On direct examination Edwin S. George was permitted to testify as to tbe location of a fencS in 1910 wben he purchased tbe property. Tt does not appear tbat there ever was any dispute regarding, this fence between Edwin S. George and Emma Babcock from 1910, wben be bought tbe property, to 1917, wben Emma Babcock died. Moreover, tbe testimony offered was as to tbe location of a fence and not as to any conversation bad with Emma Babcock.
It also appears tbat four other witnesses testified as to tbe existence and location of tbe fence. In Olah v. Insurance and Church Society, 255 Mich. 348, we held error in tbe admission of testimony, in a case tried without a jury, was not prejudicial where there was other competent testimony to support tbe findings of tbe trial court. Under tbe facts in tbe case at bar it was not error to admit tbe testimony of-Edwin S. George as to tbe location of tbe fence.
It is also urged tbat tbe chancery court does not have jurisdiction to settle tbe disputed boundary line between two parcels of real estate. It should be noted tbat plaintiff brought tbe present suit to enjoin defendants from trespassing on its lands. Tbe location of a boundary line was only incidental to tbe relief sought by plaintiff. In Beaver v. Zwonack, 250 Mich. 96, we held tbat parties who are in possession of a strip of land may maintain a suit to enjoin a continuing-trespass by adjoining owners, wbo also claim title. We conclude tbat under tbe record tbe trial court bad jurisdiction to bear tbe case and decide tbe issues involved therein. It is also urged that the court’s findings, of facts are against the great weight of the evidence. We' have examined the record and conclude that the evidence conclusively supports the findings of facts made by the trial court. We note that in each of the answers filed by the defendants there is an admission of the physical acts of using the lake frontage, although claimed as a matter of right.
It is urged that the trial court erred in curtailing defendants’ cross-examination of the witnesses Edwin S. George and Wilbur S. McAlpine. It appears that on cross-examination of Edwin S. George, defendants’ counsel questioned him as to the inner workings of the Edwin S. George Foundation. This line of cross-examination was objected to by plaintiff’s counsel. The trial court sustained the objection, saying: “I don’t think the court can possibly concern itself with the inner workings of the Foundation, this case doesn’t involve that.” The issue in this case was one of trespass and the trial court was right in sustaining the objection.
Wilbur S. McAlpine, a witness produced by plaintiff, is a registered land surveyor. He testified to a survey made of the property with reference to the angle at which the east-and-west eighth line of the northeast quarter of section 18 met the north-and-south eighth line in said quarter section. In answer to a question on re-cross-examination relating to the degree of an angle between two lines, he stated that' by the use of trigonometry he could determine the degree of such angle. At this point the trial court stated :
“Inasmuch as this question wasn’t asked and this angle wasn’t gone into on direct examination nor cross-examination, I don’t think the court can indulge you in sending this witness home, some place to figure out any further answers. It (If) it is just something you overlooked or want to clear up, all right we are long past this witness, or should be. Anything further?”
In view of the fact that the real issue in this cause is one of trespass, we are of the opinion that no prejudicial error was committed» in curtailing such cross-examination on this point.
It is also urged that the court was in error in refusing to grant a continuance to enable the defendr ants to produce the testimony of Nelson Shattuck by deposition. It appears that on December 6, 1943, a motion for a continuance was granted until April, 1944, and the cause finally came on for hearing on October 3, 1944. It also appears that Nelson Shattuck lives in California and on September 29, 1944, wrote a letter to defendants ’ attorney, the substance of which is not contained in the record, nor is there any evidence that such witness could give any testimony relating to the main issue in this cause. In the absence of such a showing, there was no error in refusing a continuance.
In our examination of the entire record, we arrive at the conclusion that the trial court made a proper disposition of the cause. A decree will be entered in this Court affirming the decree entered by the trial court, with costs to plaintiff.
Bushnell, C. J., and Boyles, Reid, North, Dethmers, Btjtzel, and Carr, JJ., concurred.
See 3 Comp. Laws 1929, §14219 (Stat. Ann. § 27.914).—Reporter. | [
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Sharpe, J.
Claimant, Lena Catherine Rokich, appeals from a circuit court judgment reversing a decision allowing unemployment compensation benefits by the appeal board of defendant commission.
The facts are riot in dispute and are as follows: Claimant was employed by the Packard Motor Car Company from June 12, 1944, to November 27, 1944, at which time she was laid off for lack of work. On December 14, 1944, she obtained work at Sam’s Cutrate, Inc., in Detroit and continued there until January 12, 1945, when she voluntarily quit her job because of pregnancy. Her baby was born in September, 1945. On January 24, 1946, she applied to the Michigan unemployment compensation commission for unemployment benefits. On March 6, 1946, sh§ applied for work at Sam’s Cutrate, Inc., and was informed that no work was then available.
On March 12, 1946, the commission determined that Lena Catherine Rokich had left the employ of Sam’s Cutrate, Inc., voluntarily because of pregnancy and was available for work and eligible for benefits, under section 28 (c) of the act, beginning March 6, 1946. Claimant appealed from this determination claiming that she was eligible for benefits as of January 24, 1946. On August 26, 1946, the referee affirmed the decision of the commission.
Thereafter, the Packard Motor Car Company, a base-period employer, appealed the decision of the referee to the’appeal board. The appeal board on October 28, 1946, affirmed the decision of the referee. Subsequently, upon application of the Packard Motor Car Company, review was had by the Ingham county circuit court by certiorari. On April 5, 1947, the circuit court held that claimant was disqualified for benefits for the duration of her unemployment because she left her employment because of pregnancy.
An appeal is taken to this Court by the claimant and a cross appeal is also taken by the Michigan unemployment compensation commission. Both claimant and the commission are in harmony in contending that claimant is entitled to unemployment benefits after March 6, 1946.
That part of the statute upon which decision is based is Act No. 1, § 29, Pub. Acts 1936 (Ex. Sess.), as amended by Act No. 246, Pub. Acts 1943 (Comp. Laws Supp. 1945. § 8485-69, Stat. Ann. 1946 Cum. Supp. § 17.531), which, reads in part as follows:
“Sec. 29. * * * An individual shall be disqualified for benefits:
“(a) For the duration of his unemployment in all cases where the individual has either: (1) left his work voluntarily without good cause attributable to the employer, * * *
“(g) When it is found by the commission that total or partial unemployment is due to pregnancy. ’ ’
Regulation No. 215 of the commission (Administrative Code [1944], p. 1450) interpreting section 29 (g), prescribed by Act No. 1, § 4, Pub. Acts 1936 (Ex. Sess.), as amended by Act No. 246, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8485-44, Stat. Ann. 1946 Cum. Supp. § 17.504), is as follows:
“ (4) Section 29 (g) provides that an individual shall be disqualified for benefits when it is found by the commission that total or partial unemployment is due to pregnancy.
‘ ‘ The commission accordingly prescribes:
‘ ‘ This disqualification shall begin on the first day of unemployment due to pregnancy and shall end when the individual is no longer pregnant and can establish that she meets all eligibility requirements. ’ ’
Plaintiff contends that by the language of the act, the disqualification for benefits must last until the claimant has again accepted work in good faith and has actually started such work; that by the enactment of Act No. 360, Pub. Acts 1947, amending section 29 under consideration here, which now provides:, “An individual shall be disqualified for benefits * * * (e) For the duration of her unemployment when it is found by the commission that total or partial unemployment is due to preg nancy,” it was the intention of the legislature to clarify the original act and make it declaratory of its original intention.
Claimant and the commission urge that section 4 of regulation No. 215 is a valid interpretation of section 29 (g) of the act.
The legislature, within the limits defined in the law, may confer authority on an administrative board to make rules for the purpose of carrying out the legislative policy. See G. F. Redmond & Co. v. Michigan Securities Commission, 222 Mich. 1; Argo Oil Corporation v. Atwood, 274 Mich. 47. Under section 4 of the act, the commission is empowered to make rules and regulations, not inconsistent with the provisions of the act, to carry out its provisions. The particular issue in this case is whether the regulation adopted is inconsistent with the provisions of section 29 (g).
When the 1943 amendment to the act was adopted it became the policy of the State to disqualify pregnant women from receiving unemployment benefits. The act in question states that if unemployment, either total or partial, is due to pregnancy the woman is disqualified from such unemployment benefits.. The act does not attempt to define the period of time after the birth of the child that unemployment is due to her former pregnant condition. The commission by adopting the regulation in question have attempted to fix that period of time by saying that such disqualification ceases to /'exist when she is no longer pregnant and meets all other eligibility requirements.
When the legislature adopted the 1947 amendment it provided that such disqualification should exist for the duration of unemployment when such unemployment, either partial or total, is due to preg nancy. It cannot be presumed .that the legislature by enacting the above amendment did a futile act. See Lawrence Baking Co. v. Unemployment Compensation Commission, 308 Mich. 198 (154 A. L. R. 660). It must be presumed that the legislature intended to change the existing law by the enactment óf the 1947 amendment.
It must follow that prior to the enactment of the 1947 amendment, the disqualification for benefits due to pregnancy existed only so long after pregnancy as a woman was unable to meet the standards enumerated in section 28 (c) of the act, as amended by Act No. 9, Pub. Acts 1944 (1st Ex. Sess.) (Comp. Laws Supp. 1945, § 8485-68, Stat. Ann. 1946 Cum. Supp. § 17.530). The commission by adopting the regulation in question placed its construction of the meaning of the statute in terms of length of time. In our opinion the regulation adopted was in harmony with the legislation as it existed at the time of its adoption.
Claimant’s rights are to be determined under section 29 (g) of the act prior to the 1947 amendment. She is entitled to benefits from March 6, 1946, the date on which the appeal board found she was able and available for work and had met the other eligibility requirements of the act.
The judgment of the circuit court is reversed, but without costs as the construction of a statute and regulation promulgated thereunder is involved.
Reid and North, JJ., concurred with Sharpe, J. Boyles and Dethmers, JJ., concurred iii the result. | [
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Boyles, J.
Plaintiff filed a bill of complaint in the circuit court for the county of Wayne in chancery, alleging that it is an ecclesiastical corporation, and that in March, 1940, a warranty deed of plain tiff’s church property had been unlawfully and fraudulently obtained and secretly recorded by the defendant Anna Kazanjian, without consideration, whereby the defendant Armenian Full Gospel Church claims to own said church property. The bill prayed that the deed be set aside, that the defendants account for money collected for church purposes and be enjoined from interfering with the members of the plaintiff church while worshipping in said church premises.
The defendants filed joint and several answers, issues were joined and the case heard in part by the trial judge. After some of plaintiff’s witnesses had testified, the trial judge announced:
“This case will be adjourned to. the 16th of June. On the 15th of June there will be an election held. All the members of the United Armenian Brethren Evangelical Church and also the Armenian Full Gospel Church will vote on whether or not this property shall be transferred from the Armenian Brethren Evangelical Church to the Armenian Full Gospel Church. All members, the paying members who were members of the United Armenian Brethren Evangelical Church and Armenian Full Gospel Church in 1939 shall vote on it and the court will be controlled by their vote. I hope that you will come to an understanding fin the transfer of this property. ’ ’
Thereupon- an order for said adjournment was entered in the cause, directing that an election be held in the church building on a certain date, under certain conditions, stating the question to be voted on, and directing who might vote in said election. The first order, as entered, directed that the election be conducted in accordance with the bylaws, which provided for decision by a two-thirds vote. The order was later amended by the trial judge to provide that:
“A majority of the votes cast by the aforede-
scribed eligible members, who are present at the time and place set for the said election, shall govern the election.”
From this order the plaintiff filed a claim of 'appeal, without obtaining leave therefor. The printed record and briefs have been filed and the case submitted here on briefs without oral argument.
The appellant, for reversal, claims that if it had been permitted to proceed and present its entire case and had successfully proven all the allegations set out in its pleadings, it would have been entitled to the relief prayed for. Although this is a chancery case which we hear de novo, it is obvious that no determination of the above question could be made here, in the absence of such full proofs. The essential question here is whether the plaintiff should have been permitted to proceed with its proofs, and was the trial court in error in ordering the holding of an election, under rules set up by the court, instead of hearing the case. .
This situation has recently had the consideration of this Court, and decisions were rendered which control the instant case. Judicial interference in the purely ecclesiastical affairs of religious organizations is improper. Property rights, however, are the concern of the courts. Berry v. Bruce, 317 Mich. 490; White v. Mount Beulah Baptist Church, 319 Mich. 392.
In the case at bar, the order was an improper judicial interference with the internal management of the church in ecclesiastical matters. The question of property rights should have been deter mined by the trial court, after opportunity for both sides to present their proofs. For these reasons, the order directing the holding of .an election must be set aside.
The appellees now make the claim in their brief, for the first time, that the order appealed from was interlocutory, and as such was not appealable without’ leave having been first obtained. Appellees made no motion to dismiss the appeal. Had such motion been made, it is probable that the motion would have been denied, as was done in Berry v. Bruce, supra, for the reasons announced therein at page 497. We therefore consider the issue raised on this appeal. See Toledo Pipe Organ Co. v. Paradise Theatre Co., 318 Mich. 342, 344.
The order complained of is set aside ánd the case remanded for hearing on the merits. No costs allowed.
Bushnell, C. J., and Sharpe, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Carr, J.
Plaintiff herein sustained an injury, in February, 1944, while working in the employ of defendant. It is her claim that while carrying two drums, weighing approximately 35 pounds each, she slipped, or stumbled, and fell, injuring her shoulder. She reported the occurrence to her foreman and was directed to the first-aid department maintained by defendant. After receiving treatment there she reported again to her foreman, informing him that she could not resume her regular work because her arm was hurting her. Thereupon she was assigned lighter employment, in which she continued until the latter part of August, 1945, when she was laid off with other employees. She was not. subsequently employed, but did apply for and received unemployment compensation insurance.
On June 6, 1946, plaintiff filed her application for compensation under the workmen’s compensation act of this State (Act No. 10, Pub. Acts 1912 [1st Ex. Sess.], as amended [2 Comp. Laws 1929, § 8407 et seq. (Comp. Laws Supp. 1940, 1945, §.8408 et seq., Stat. Ann. and Stat. Ann. 1946 Cum. Supp. § 17.141 et seq.)]) with the department of labor and industry. Defendant filed its answer thereto, denying plaintiff’s right to benefits under the act, and asserting in support of such denial, among other reasons, that plaintiff had not sustained a compensable injury arising out of and in the course of her employment and that claim for compensation had not been made within the time prescribed by the statute above cited. Following hearing before a deputy of the department, plaintiff was awarded compensation at the rate of $21 per week until further order. The compensation commission of the department sustained the award. Having obtained leave from this Court, defendant has appealed.
Plaintiff was a witness in her own behalf on the hearing before the deputy commissioner, testifying to the manner in which the accident happened, and the resulting injury to her shoulder. She also testified that the injury continued to cause her trouble and that she went to defendant’s first-aid department for treatment on an average of once or twipe a week as long as her employment continued. She further claimed that because of the injury she lost an average of one day per week during the time that she remained in defendant’s employ.
A physician who had examined plaintiff testified, in substance that she was suffering from a painful enlarged supraspinatus bursa which might have re- suited from trauma, for which condition the physician recommended excision. Defendant introduced medical testimony at variance with that given by plaintiff’s witness. The deputy, and the compensation commission on appeal, determined the controverted issues in favor of plaintiff, sustaining her claim to compensation. The findings of fact are summarized in the commission’s opinion as follows:
“We find as a fact that the plaintiff sustained an accidental personal injury arising out of and in the course of her employment in February, 1944; that the defendant had notice but failed to file report; that more than eight days ’ time was lost as a result of the accident, and that since the defendant failed to report the matter, claim for compensation is timely filed. We further find that the plaintiff is still totally disabled as a result of the injury, and is entitled to the compensation as awarded by the deputy commissioner.”
It is not disputed that the injury sustained by plaintiff arose out of and in the course of her employment. Defendant contends, however, that there was no evidence before the department to show that plaintiff sustained a compensable disability. Emphasis is placed on plaintiff’s continuance in the employ of the defendant for approximately 18 months after she sustained the injury to her shoulder, and on the fact that the record does not show that her wages in the lighter employment given her were less than prior to the accident. It is argued that such employment after the injury raises a presumption that plaintiff did not suffer a loss in earning capacity.
In support of its contention defendant relies on MacDonald v. Great Lakes Steel Corp., 274 Mich. 701. There plaintiff was granted compensation based on the difference between his- average weekly earnings at the time of his injury and his wage-earning capacity thereafter. From snch award he appealed on the ground that the reduction therein on the basis indicated was improper. In sustaining the action of the department this Court said:
“He makes no showing of change of physical condition or ability to work, of inability to obtain a job, that he belongs in the class of ‘nondescript’ or ‘odd lot’ labor, Hood v. Wyandotte Oil & Fat Co., 272 Mich. 190, nor that otherwise there has been a change in his actual earning capacity since his discharge. The department refused to reinstate the original award on the ground that a wage-earning capacity had been established by the employment and no change in such capacity had been shown.
“The action of the department amounts to a ruling that the actual earning of wages establishes an earning capacity under the proviso in 2 Comp. Laws 1929, § 8427 (e), that, prima facie, such earning capacity continues after the discharge of the employee from the employment in which the wages are earned and that the burden of showing a change of earning capacity when the employment ceases (in order to reinstate the original award or to decrease the set-off against it) is upon the employee. This is merely an application of the rule that the burden of proof of right to compensation and its amount is on the employee. The prima facie assumption of continuance of earning capacity is in accord with ordinary human experience and not unfair.
“The ruling does not require the employee to show a change of physical condition after his discharge. Nor does it prevent his showing his actual earning capacity after the employment ceases, as affected by his physicial condition, his ability to work, the> market for his labor and other pertinent circumstances.
“Plaintiff having failed to present evidence to rebut the prima facie showing of earning capacity resulting from actual employment, the award is affirmed. ’ ’
In Hood v. Wyandotte Oil & Fat Co., 272 Mich. 190, cited in the above quotation, it was said:
“An injured person may recover to the point where he can, if favored, perform special service, if such is obtainable, but, if none can be obtained because of his injury, his capacity to work and earn cannot be measured against his incapacity. If his injury isolates him from employment then, of course, he is not to be held to have capacity to work and earn wages. If his injury has reduced Ms capacity to work and relegated him to the rating of ‘odd lot’ or ‘nondescript’ workers for whom labór openings are extremely limited, then opportunity, within his capacity, should be made to appear. * * *
“The department found total disability. We do not weigh the evidence. The weighing scale is in other hands and, even if we think it out of balance, we cannot re-weigh. There was evidence that plaintiff has no wage-earning capacity by reason of his injuries and inability to obtain employment in his handicapped condition. ’ ’
In the case at bar rebuttal testimony of the character referred to by the court in the language above quoted was offered on behalf of plaintiff. She testified before the deputy, commissioner that, because of the condition of her shoulder, she was at the time of the hearing unable to work, that the condition was “getting worse,” and that the pain was continuous. Her medical witness further testified that the bursitis, because of its character and location, was very painful. The department found a condition of total disability, which finding is supported by plaintiff’s proofs. It must be said, therefore, that any presumption of earning capacity resulting from the fact that plaintiff was employed by defendant at very light work for approximately 18 months after the injury yields to the proof tending to show her actual physical condition as of the date of the hearing.
The scope of the review by this Court in cases of this character is limited. 2 Comp. Laws 1929, § 8451, as amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8451 [Stat. Ann. 1947 Cum: Supp. § 17.186]), provides in part as follows:
“The findings of fact made by the compensation commission acting within its powers, shall, in the absence of fraud, be conclusive, but the Supreme Court shall have power to review questions of law involved in any final decision or determination of said compensation commission.”
Under the provisions of the workmen’s compensation law the department of labor and industry is charged with the duty of considering testimony offered by the parties, determining facts therefrom, and drawing legitimate, inferences from the facts found to be established by competent proofs. Such findings and inferences, if supported by competent evidence, must be accepted by this Court. Graham v. City of Lansing, 303 Mich. 98; Wolanin v. Chrysler Corp., 304 Mich. 164; Holloway v. Ideal Seating Co., 313 Mich. 267. Defendant’s claim that plaintiff failed to establish a compensable disability cannot be sustained.
Defendant further contends that the award should be set aside on the ground that plaintiff’s claim for compensation was not seasonably filed. The determination of this issue involves a consideration of pertinent statutory provisions. 2 Comp. Laws 1929, § 8431, as last amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8431 [Stat. Ann. 1947 Cum. Supp. § 17.165]), reads as follows:
“No proceedings for compensation for an injury-under this act shall be maintained, unless a notice of the injury shall have been given to the employer within 3 months after the happening thereof, and unless the claim for compensation with respect to such injury, which claim may be either oral or in writing, shall have been made within 6 months after the occurrence of the same; or, in case of the death of the employee, within 6 months after said death; or, in the event of his physical or mental incapacity,’within the fir^t 6 months during which the injured employee is not physically or mentally in'capacitated from making a claim: Provided, however, That in all cases in which the employer has been given notice of the injury, or has notice or knowledge of the same within 3 months after the happening thereof, but the actual injury, disability or incapacity does not develop or make itself apparent within 6 months after the happening of the injury, but does develop and make itself apparent at some date subsequent to 6 months after the happening of the same, claim for compensation may be made within 3 months after the actual injury, disability or incapacity develops or makes itself apparent to the injured employee, but no such claim shall be valid or effectual for any purpose unless made within 2 years from the date the personal injury was sustained: And provided further, 'That any time during which an injured employee shall be prevented by reason of his physical or mental incapacity from making a claim, shall not be construed to be any part of the 6 months ’ limitation mentioned in this section: And provided further, That in ^11 cases in which the employer has been given notice of the happening of the injury, or has notice or knowledge of the happening of said accident within 3 months after the happening of the same, and fails, neglects or refuses to report said injury to the compensation commission as required by the provisions 'of this act, the statute of limitations shall not run against the claim of the injured employee or his dependents, or in favor of either said employer or his insurer, until a report of said injury shall have been filed with the compensation commission.”
The making of the reports referred to in the section quoted is governed by 2 Comp. Laws 1929, § 8456, as amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8456 [Stat. Ann. 1947 Cum. Supp. § 17.191]), which reads:
“Every employer who is subject to the workmen’s compensation act shall keep a record of all injuries causing death or disability of any employee arising out of and in the course of the employment, which record shall give the name, address, age, wages of the deceased or disabled employee, the time and cause of the accident, the nature and extent of the injury and disability, and such other information as the compensation commission may reasonably require by general order. Reports based upon this record shall be furnished to such commission at such, times and in such manner as it may reasonably require by general order upon forms to be procured from such commission.”
In accordance with the authority granted to it by the statute, the compensation commission of the department of labor and industry adopted certain rules, effective July 30, 1943. The first rule so adopted, which was in force and effect at the time of plaintiff’s injury, and subsequently incorporated as rule 1 in the rules and regulations adopted by the commission, effective March 31, 1944, required employers subject to the workmen’s compensation act. to report to the commission on a prescribed form within eight days after the occurrence of, first, com pensable injuries, second, occupational diseases, third, specific losses, fourth, lost-time injuries of one day more than the day or shift on which the injury occurred. The rule further required that a copy of the report be given to the injured employee.
In the case at bar it is conceded that no report was filed with the commission. Whether the defendant actually kept any record of plaintiff’s accident and injury, as required by the provisions of the statute last above quoted, does not appear. It is conceded, however, that if it was defendant’s duty to make a report, its failure to do so precludes it from now asserting that plaintiff’s claim for compensation was not seasonably filed. The concluding proviso in the section of the statutes first above quoted would clearly be applicable under such circumstances. Nicholas v. St. Johns Table Co., 302 Mich. 503, 515. Defendant insists, however, that the record in the case does not indicate that it owed such duty. It is claimed that plaintiff should have advised defendant, through its proper representatives, that her loss of time was due to her injury. Emphasis is placed on the fact that the record fails to show that any express notification of such purport was given. However, actual knowledge on the part of an employer is the equivalent of notice. Vestal v. Therminsul Corp., 291 Mich. 64; Henderson v. Consumers Power Co., 301 Mich. 564; 2 Comp. Laws 1929, § 8434 (Stat. Ann. § 17.168). Defendant was bound by notice to, and the knowledge of, its foreman and its representatives in charge of the first-aid department where plaintiff received treatments for her injury. Burke v. Michigan Stamping Co., 223 Mich. 495; Johnson v. Ford Motor Co., 240 Mich. 316; Fulford v. J. L. Hudson Co., 269 Mich. 520; LaPorte v. Kalamazoo Stove Furnace Co., 308 Mich. 687; Hutchinson v. Tambasco, 309 Mich. 597. If defendant knew plaintiff’s injury was disabling in character, it was required under the statute and the rules of the compensation commission to file a proper report. Pritchard v. Ford Motor Co., 276 Mich. 246; Paridee v. Great Atlantic S Pacific Tea Co., 278 Mich. 191.
The evidence'before the department of labor and industry indicated that defendant, through its representatives, knew that plaintiff had sustained' an injury arising out of and in the course of the employment. Said representatives further knew that she was unable to continue in her prior employment. Because of her condition she was given lighter work in which she- was continued as long as she remained in defendant’s employ. Apparently she was not asked to do the heavier work that she had done previously. Defendant was also charged with knowledge that plaintiff was receiving treatments for her shoulder condition at the first-aid department, and that she was absent from work on an average of one day per week, during the time that she continued in her employment. Plaintiff’s testimony with respect to these matters was not contradicted. Based on the proofs before it the department found that defendant had knowledge of plaintiff’s condition, the nature of the disability from which she -was suffering, the cause thereof, and its effect on her ability to work. We cannot say that the inferences drawn by the department from the established facts were not permissible.
The findings of the compensation commission that defendant had knowledge that plaintiff had suffered a disabling injury and that she had, in consequence thereof, lost time from her employment, being based on competent evidence, are binding on this Court under the statutes and cases hereinbefore cited. The determination of the commission that defendant was required to file a report must in consequence be sustained. Not having performed the statutory duty resting on it, defendant was not entitled to assert that plaintiff’s claim for compensation was not seasonably filed.
The award is affirmed, with costs to plaintiff.
■ Bushnell, C. J-., and Sharpe, Boyles, Reid, North, and Dethmers, JJ., concurred. Butzel, j., did not sit. \
See Administrative Code 1944, p. 349.—Reporter. | [
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North, J.
This is a mandamus proceeding in which plaintiffs seek to have defendant Smith, as clerk of the village of Constantine, directed to execute, as required by statute (1 Comp. Laws 1929, § 1756 [Stat. Ann. § 5.1493]), an issue of $216,000 electric light and power system mortgage bonds which had been authorized by passage of a village ordinance. The clerk’s refusal to execute these bonds is based in part upon the following contentions.
(1) That $98,000 of the issue is to refund that amount of electric light and power mortgage bonds issued in 1937 and 1939, which bonds are void because they were is sued, without lawful authority, and therefore the proposed issue for refunding the 1937 and 1939 bonds would be void, or at least not lawfully authorized.
(2) That the proposed issue of bonds purports to mortgage not only the contemplated improvements, enlargements and extensions to the village electric light and power system and the additional revenues derived therefrom, but also to mortgage its present electric system and the revenues derived from it. Defendant asserts that the village is without power to so encumber its present plant and the revenues therefrom.
Plaintiffs are the president and members of the council of the village of Constantine which was organized under the 1895 general village act. 1 Comp. Laws 1929, § 1465 et seq. (Stat. Ann. § 5.1201 et seq.). As noted later herein, the village charter was amended in September, 1947, effective October 6, 1947. In 1937, the village acquired an electric utility through the issuance of mortgage bonds in the amount of $107,000, dated June 1, 1937. In 1939, the village issued $38,000 additional mortgage bonds dated April 1, 1939, for the purpose of extending and expanding this municipal utility. At the time of the issuance of the 1937 and 1939 bonds there was no statutory or charter provision which authorized the village of Constantine to issue the above bonds. However, the village ashamed it had power to issue the bonds under article 8, § 24, of the Constitution (1908), which this Court in 1926 had held was self-executing. See Michigan United Light & Power Co. v. Village of Hart, 235 Mich. 682.
The first question presented is this: Are the bonds issued in 1937 and 1939 valid obligations! Under the authorities about to be noted the answer must be in the affirmative. At the time these bonds were issued by our holding in Michigan United Light & Power Co. v. Village of Hart, supra, article 8, § 24, of the Constitution, was judicially determined to be self-executing as to a village organized as is the village of Constantine. Even if it be assumed, as counsel herein seem, to agree, that by our later decision in Sault Ste. Marie City Commission v. Sault Ste. Marie City Attorney, 313 Mich. 644 (1946), we overruled our earlier (1926) holding in the Hart Case, supra, nonetheless the validity of the Constantine village mortgage bonds issued in 1937 and 1939 must be determined in the light of the applicable law as judicially announced in the 1926 Hart decision. In other words, since those bonds were issued during a period in which article 8, § 24 of the Constitution, was judicially held to be self-executing, their validity must be determined under that construction of the law.
‘ ‘ The general principle is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former decision is bad law, but that it never was the law. To this the courts have established the exception that where a constihitional or statute law has received a given construction by the courts of last resort and contracts have been made and rights acquired under and in accordance with such construction, such contracts may not be invalidated, nor vested rights acquired under them impaired, by a change of construction made by a subsequent decision.” 14 Am. Jur. p. 345.
The law, as just above stated, has been approved in this jurisdiction in the following cases: Metzen v. Department of Revenue, 310 Mich. 622; Donohue v. Russell, 264 Mich. 217. In the latter case we quoted with approval the following:
‘ ‘ ‘ The effect of overruling a decision and refusing to abide by the precedent there laid down is retrospective and makes the law at the time of the overruled decision as it is* declared to be in the last decision, except in so far as the construction last given would impair the obligations of contracts entered into or injuriously affect vested rights acquired in reliance on the earlier decisions.’ * * * 15 C. J. p. 960, § 358.”
We are mindful that as to $38,000 of these bonds issued in 1939, the issuance thereof was not submitted to the electors for their approval. Nonetheless as article 8, § 24, of the Constitution (1908), was at that time judicially construed, it was self-executing, and for that reason approval of the bond issue by the electors was not required. While perchance it is not essential to decision of the issue now under consideration, it may be noted in connection therewith that in 1947 the village charter was amended, and the amendment included the following:
“The previous acquirement, improvement, enlargement and extension of such a utility, in the village and the issuance of mortgage bonds therefor, are hereby ratified- and confirmed. The village may issue mortgage refunding bonds for the purpose of refunding mortgage bonds issued either before or after the effective date of this section, and such mortgage refunding bonds shall be valid obligations, notwithstanding the fact that the original bonds may have been issued without first adopting a charter amendment authorizing such issuance.”
As indicated above, the bonds issued by the village of Constantine in 1937 and 1939 are valid subsisting-obligations in accordance with the terms thereof.
The second issue presented in the instant case may be stated as follows: Can the payment of mortgage bonds issued for the improvement, enlargement or extension of an existing municipal utility be secured by a pledge of or lien upon not only such improvement, enlargement and extension and the revenues therefrom, but also by a pledge of or lien upon the existing utility and the revenues therefrom? Plaintiffs say “yes;” defendant says “no.”
We are of the opinion that by necessary inference from the context of article 8, § 24, of the Constitution (1908), a municipality which has appropriate charter provisions is vested with the power to secure payment of the mortgage bonds on a given utility by making such obligation a lien not only upon the improvement, enlargement or extension and the revenues thereof for which the proceeds of the bond issue are to be used, but the municipality may also for that purpose give a mortgage lien upon the already existing utility and revenues to be derived therefrom. Touching mortgage bond issues of the type herein involved, article 8, § 24, provides they ‘ ‘ shall be secured only upon the property and revenues of such public utility, including a franchise stating the terms upon which, in case of foreclosure, the purchaser may operate the same” in the event of foreclosure. Were it possible to market bonds the payment of which were secured only by the improvement and extension of the utility, this perplexing question would at once arise: In case of foreclosure how would it be possible for the future owners to exercise a franchise which pertained only to the utility’s improvements or extensions covered by the mortgage which secured payment of the bonds? Ordinarily such a security would be quite valueless. This cannot be answered by saying that section 24 contemplated only the issuing of mortgage bonds on the utility for its original cost, and contemplated no provision for subsequent improvements, modifica tions or extensions. In the light of every day experience, such a narrow construction of section 24 would obviously be altogether too restrictive.
In construing a very similar provision, the court in City of Middletown v. City Commission of Middletown, 138 Ohio St. 596, 606 (37 N. E. [2d] 609), said:
“May a municipality in issuing mortgage utility bonds under section 12, article 18 of the constitution, secure such bonds not only by the property acquired or constructed with the. proceeds from the sale of such bonds, but also by other property composing a part of the utility? * * *
“If the contention were to be accepted that such mortgage bonds may cover only that part of a utility actually financed therewith, a situation would arise impairing the value of "the constitutional provision, vitiating its purpose and making it difficult if not impossible to find a market for the bonds.
‘ ‘ Section 12 speaks for itself. It is not ambiguous, is self-sufficient and self-contained, and an impartial reading of it leads to the conclusion that it authorizes a municipality to secure the mortgage bonds described by the inclusion of all the property and revenues of the utility, present and future.”
In Ritchie v. City Council of Harrisville, 291 Mich. 415, the city sought to issue bonds, the payment of which was secured by a pledge of the revenue of a municipal water supply and distribution system, the cost of which was to come, in part, from the general funds of the city and the proceeds of its general obligation bonds, and also from a Federal grant. In sustaining the validity of such bonds, while perchance it was not essential to decision, we said:
“We can see no distinction between the case at bar and a case where an addition is made to an existing public project and the entire revenues thereof, after the addition is completed, are to be used in payment of principal and interest of bonds issued under the provisions of the cited statutes.”
It would seem there is little room for. distinction between pledging the entire revenues and pledging the entire utility. While the exact issue under consideration was not therein raised, in Consumers Power Co. v. City of Allegan, 248 Mich. 34, we sustained the right of the municipality to issue mortgage bonds covering the entire utility notwithstanding $185,000 of the expenditure was from the proceeds of general obligation bonds, and $255,000 from an issue of mortgage bonds. Clearly, in so doing, the payment of the mortgage bonds was secured by property other than that which was paid .for by the mortgage bond loan.
A case in this field of the law is reported in Warden v. City of Grafton, 125 W. Va. 658, 668 (26 S. E. [2d] 1). Therein the court said:
“It might be contended that section 22 limits the lien to only ‘such municipal public works acquired or constructed under the provisions of this act.’ We think, however, that this construction would defeat the whole intention and purpose of the statute. If the lien is to attach only to such part of the public works as shall have been constructed from the proceeds of the revenue bonds, then in case the bonds were issued for the enlargement or improvement of any such works, the lien would be only on an undetachable and probably unascertainable portion of the structure, and therefore would be utterly worthless. * * * Even in the case of a building wholly constructed from revenue funds upon land otherwise acquired, the lien would be on the building but not on the land and, therefore, of little or no value. ’ ’
In support of his contention defendant cites and relies much upon Lake Superior District Power Co. v. City of Bessemer, 288 Mich. 455. That case is clearly distinguishable from the one at bar. In the Bessemer Case it was charged that the city, incident to financing construction of an electric plant and distribution system proposed “to mortgage its present waterworks plant as part of the security for the bonds to be issued in connection with the municipal light plant project.” Notwithstanding the city denied an intention so to do, under the circumstances of that case the city was enjoined from mortgaging its already owned and separate utility — its waterworks plant — to secure payment of bonds issued incident to the construction and financing of a separate utility — i.e., an electric plant and distributing system. No such issue attends the instant case.
Our conclusion is that by proper procedure the village of Constantine has the power to issue mortgage bonds for the improvement, enlargement and extension of its existing electric utility, and that the payment of such mortgage bonds may be secured by a pledge of or a lien upon the whole of such electric utility and the revenues derived therefrom.
Notwithstanding decision of thes instant case turns upon a question not hereinbefore considered, we have disposed of the foregoing issues in order that interested parties may.be advised relative thereto incident to any further action looking to the consummation of this mortgage .bond issue.
Defendant makes this further contention in justification of his refusal to execute the bonds in question. He asserts that the approval of the electors is a prerequisite to the issuance of these mortgage bonds. Plaintiffs take the opposite view. The proposed bond issue has not been submitted for approval of the electors. The controversy in the instant case seems to narrow down as to whether under article 8, §§ 23-25, of the Constitution (1908), particularly under section 25, the approval of three- fifths of the electors is requisite to the validity of a mortgage bond issue of the type here in suit.
It is plaintiffs’ contention that such approval is not necessary; that there is neither statutory nor charter provision requiring such approval, and that under the constitutional provisions such approval is required only (1) as to acquiring such utility and (2) as to granting the franchise included in the mortgage; but that approval by the electors as to issuing mortgage bonds is not required by the Constitution.
In support of their position plaintiffs cite and draw inferences from the following cases. Stanhope v. Village of Hart, 233 Mich. 206; Michigan Gas & Electric Co. v. City of Dowagiac, 278 Mich. 522; and Lake Superior District Power Co. v. City of Bessemer, supra. We find nothing in any of the cited cases which justifies the inference plaintiffs seek to draw, i.e., that as to issuance of mortgage bonds approval of three-fifths of the electors voting is not required. That isgue was not presented in or passed upon in any of the decisions just above cited. But we have said that article 8, §§23-25, of the Constitution (1908), must be read together. Lake Superior District Power Co. v. City of Bessemer, supra. When so read the conclusion is quite irresistible that issuing the mortgage bonds is necessarily an integral part of the purchase of the public utility. The terms of the bonds are an essential part of the purchase price of the utility. The electors have a real; interest in the amount of such bonds, the rate of interest they bear, et cetera. The Constitution (1908), art. 8, § 25, in part provides: “Nor shall any city or village acquire any public utility * * * unless such proposition shall have first received the affirmative vote of three-fifths of the electors of such city or village voting 'thereon.” The use of the word “proposition” in the above quoted constitutional provision is quite indicative of the meaning intended by the framers of the Constitution. Fair construction leads to the conclusion that the “proposition” which must receive “the affirmative votei of three-fifths of the electors of such city, or village voting thereon” includes the matter of issuing the mortgage bonds. The construction which plaintiffs,would place upon the pertinent constitutional provisions, when read together, is altogether too- narrow and we think unjustifiable. In so concluding, we are mindful that the 1947 amendment to the Constantine village charter includes the following:
“Any issue of mortgage bonds may at the discretion of the council, be in an amount sufficient to refund outstanding mortgage bonds relating to such utility and also to make improvements, enlargements and extensions-thereto.”
But the foregoing provision is immediately followed by these words of limitation:
“The powers herein granted to the village may be exercised by the village council except where by State constitution or statute, such powers are lodged in the electors.” >
In any event, a charter provision or an ordinance which contravened the Constitution would be invalid and inoperative. In part the headnote to Stanhope v. Village of Hart, supra, reads: “where a proposed mortgage and franchise have not been submitted to the electors, erection of a proposed public utility may be enjoined by taxpayers of the municipality..” Our conclusion is that notwithstanding the contemplated $216,000 mortgage bond issue was purportedly authorized by an ordinance passed by the Constantine village council, it is still requisite to the validity of such, bond issue that it should be submitted to a vote of tbe electors and be authorized by at least a three-fifths vote of the electors voting thereon*
For the reason hereinbefore indicated plaintiffs’ application for mandamus is denied, but without costs since a public question is involved.
Btjshnell, C. .J., and Sharpe, Boyles, Reid, Dethmers, Btjtzel, and Carr, JJ., concurred. | [
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North, J.
In this suit, tried in the circuit court without a jury, plaintiff had judgment for $3,500. The defendant has appealed.
The Seward .Corporation owns and operates the Seward Hotel in Detroit. Plaintiff and his wife occupied a room in the hotel from some time in May, 1945 until the latter part of September. Relative to the circumstances which gave rise to this litigation, we quote the following. Plaintiff testified:
“I had three occasions, while living at the Seward Hotel, to leave money for safekeeping with the clerk, each time leaving about four or five hundred dollars. On the 16th of July, 1945, I had with me, $3,500 in $50 and $100 bill denominations. I got an envelope from Cliff Tuttle, the clerk down at the desk, and put the money in it. He said, ‘You will have to write on the stub how much money was in it.’ So I wrote $3,500. I sealed the envelope. * * * He gave me in return, that stub marked exhibit 1. It is a refund-er’s check. You have to refund (return) that to get your envelope. It is off the envelope. There were two (checks). The other ha'd the same number as this one. It was left on the envelope. I told him $3,500 is in the package. I signed my name on the other one and that one he tore off and handed to me. I wrote $3,500 on both of the stubs. He was to put it in the safe and keep it for me. * * *
“Q. Did Mr. Tuttle tell you that the hotel was only liable for $250 when you gave him the money?
“A. Not that I remember, sir. * * *
“I was a monthly tenant, paying my rent by the month.”
Clifton E. Tuttle, the hotel clerk who received the envelope from plaintiff, testified:
“I have been a desk clerk at the Seward Hotel four years. I know Mr. Layton. He lived at the hotel. He was a monthly tenant, paying his rent by the month. He came in for the riding season, possibly in May until it ended sometime in September. I was at the desk on July 16, 1945. Mr. Layton delivered a package to me for safekeeping. * * * I took the envelope reported to have the money in it. I told him to write his name on it, on the original ticket which remains with the envelope. I told him he must write his name on it, which he did. He did not write $3,500 on both stubs in my presence. I don’t know what he put in the safe. I accepted the envelope that he had. * * * When this envelope was handed to me by Mr. Layton, I didn’t know what was in. it! He signed his name and I handed him back exhibit 1. ’* * * I didn’t ask the contents of it.
“Q. Did anybody tell you what was in the package ?
“A. Tes, he had Mr. Ferris with him, his agent. Said there was $3,500 in there. I remarked only insured for $250.
“Q. What did they say?
“A. Didn’t say anything. Grave it to me just the same.
“The Court: He told you at the time that he gave it to you, there was $3,500?
“A. They made the remark between them.
“The Court: But you heard it?
“A. That is right. * * *
“There wasn’t any robbery, holdups or burglaries in that hotel to my knowledge, during July, August or September. Eight men had access to the vault or safety deposit box in the hotel, besides myself. Nine altogether. * * *.
“The Court: When he told you there was $3,500 in that, you still accepted it?
“A. Yes, sir. * ’ * *
“The Court: So it wasn’t custom apparently to put in value of contents.
“A. That is right. * * *
“The Court: But it says here: ‘'The contents of this envelope do not exceed a value of.’ Was that left blank in that 509 (number on plaintiff’s envelope) ?
“A. I don’t recall. I know said something about $3,500 between the two of them. That is when I explained to them insured for $250.
“The Court: But nevertheless you took it in.
“A. That is right.’’
Barbara Allen, another of the hotel clerks, testified:
“I was there in September, 1945, and saw Mr. Layton. He came up and asked for his envelope and produced the stub that goes with it. I proceeded to open the box where we kept them and there wasn’t anything in there for Mr. Layton. We have security boxes; a series of them. .Two keys to each box. It has to have a master, key and another key. I immediately called Mr. Cavanaugh (the hotel manager). I found out that Mr. Tuttle had taken in the package. Mr. Cavanaugh called Mr. Tuttle. Mr. Layton was there. The conversation related to what deposits had been made; what had happened and who had taken it in. * * *
“The Court: And it should have had the value in writing there, shouldn’t it?
“A. They write it on sometimes and sometimes they donT. * ^ *
“The Court: There is a place for the amount there?
“A. I would say all depends upon the cleric that took it in.
“I immediately called Mr. Cavanaugh. He questioned all the employees in the office. He didn’t find out where the money went. I never found out at any time that there was $3,500 in the envelope. When Layton asked for the envelope, it was the first I knew that there was $3,500 in it. So far as I know, it was never returned to him, nor has the envelope in which the money was placed ever been found.”
The initial point of divergency between these litigants seems to be this. Appellant asserts that the relation between the parties was that of landlord and tenant, and in consequence defendant, as bailee, was required to exercise only ordinary or reasonable care in performing its duties. On the contrary, appellee contends the relation or status of the parties was that of innkeeper or hotel keeper and guest, incident to which an innkeeper, as bailee, is required to exercise a much stricter degree of care. The trial judge held to the latter contention; and, for reasons hereinafter noted, we find he was correct in so holding.
It may be noted at the outset that, in passing upon the above issue, little or no weight can be given to the terminology of these parties in their pleadings or testimony, as to plaintiff being a tenant or a guest. For example, in count 1 of his declaration, plaintiff alleges he “was a tenant of the said hotel,” and defendant admits the allegation. But in counts 2 and 3 plaintiff alleges he “was a guest of the Seward Hotel,” and defendant admits the truth of each of these two allegations. On the phase of the law under consideration an extensive note appears in 12 A. L. R. 261, wherein it is stated:
“Whether a person who procures accommodation at an inn or hotel is to be regarded as a guest or as a boarder is a question of fact to be determined by a consideration of all the circumstances attending each particular case. See 14 R. C. L. p. 499. The fact that payment for the accommodation is made at a fixed rate per week, month, or the like, is merely one of the circumstances entitled to consideration, and accordingly it seems to be well settled that such a manner of payment is not of itself sufficient to change the ordinary relation of innkeeper and guest, and constitute the accommodated person a boarder dr lodger.”
While some cases may be found which seemingly are not in full accord, many cases are cited in support of the above, among them, R. L. Polk & Co. v. Melenbacker, 136 Mich. 611. In that case a headnote reads:
“Where a person went to a public hotel as a guest, and was received and treated as such, the fact that, after he had remained a week, he was charged at a weekly rate corresponding to that charged those having similar accommodations, did not change his status as a guest.”
The record before us discloses the following circumstances as criteria of the relationship of innkeeper and guest. (1) Plaintiff was not a resident of Detroit. His stay there was merely- as a jockey during the racing season. (2) He had no lease or definite term of tenancy with defendant. (3) The place where he stayed is labeled a hotel — “Seward Hotel.” Not “Seward Apartments.” (4) In the room occupied by plaintiff and his wife, as in all its rooms, defendant kept a notice posted which in part read: ‘ ‘ This hotel will not be responsible for money or jewelry left in rooms. A safe for the convenience of onr guests is in the front office.” (5) On the envelope furnished by defendant and in which plaintiff enclosed the money he turned over to.the clerk, the following was printed: “We assume no liability other than that provided for in the innkeeper’s act of this State, ’ ’ from which it might well be inferred in accepting the parcel for safekeeping defendant acted as an innkeeper. (6) While at the Seward Hotel plaintiff and his wife occupied only one room, rather than an apartment or a suite of rooms. (7) In support of its claim of nonliability, defendant throughout has strenuously insisted that it was protected by the Michigan innkeeper’s act, which obviously could not be except defendant assume the role of an innkeeper.
In view of the foregoing and other phases of the record, we conclude that the trial court was correct in holding that the relationship or status of these parties was that of innkeeper or hotel keeper and guest.
It hardly seems necessary to note that defendant was not a gratuitous bailee. The Michigan innkeeper’s statute provides: “The liability of the keeper of any inn * * * for loss of or injury to personal property of his guest, shall he that of a depository for hire.” 2 Comp. Laws 1929, § 8803 (Stat. Ann. §18.311). Plaintiff paid defendant for the services tendered by the latter to the former, including use of defendant’s safety depository. See Baehr v. Downey, 133 Mich. 163 (103 Am. St. Rep. 444, 14 Am. Neg. Rep. 84). And as bailee, defendant’s duties_ arid responsibilities were those imposed upon innkeepers by the common law, as conditionally modified by the statute. In Fisher v. Bonneville Hotel Co., 55 Utah, 588 (188 Pac. 856, 12 A. L. R. 255), it is stated:
“Beale on Innkeepers, at § 185, states that in most jurisdictions the lidbility is analogous to that of common carriers. He then says: ‘The rule as commonly stated in these jurisdictions is that the innkeeper is liable for the goods of the guest lost in the inn, unless the loss is the act of God or of a public enemy, or by fault of the owner.’ ”
But in this jurisdiction the common-law liability of innkeepers has been conditionally restricted, and thereby such liability has been, conditionally rendered less burdensome. The pertinent portion of the Michigan act is set forth in the footnote hereto. Concerning the Michigan .statute we have said: “Our statute limiting the liability of an innkeeper is in derogation of the common law, and must be strictly construed.” Davis v. Cohen, 253 Mich. 330. In part the title to the Michigan statute reads:
“An act to define the duties and liabilities of hotel keepers and innkeepers with relation to the personal property of their guests, and to provide for the protection of inn and hotel keepers.”
Reference to the' statute discloses that an innkeeper is not obligated to accept for safekeeping from a guest a bailment of a value in excess of $250 “except under special agreement as hereinbefore provided,” and that no innkeeper, unless he refuses to accept custody of the guest’s valuables, shall be liable for a guest’s loss of specified valuables if the innkeeper “keeps a copy of this section [2] printed in distinct type constantly and conspicuously suspended * * * in not less than ten conspicuous places in all in said inn, . * * * but every innkeeper shall be liable for any loss of the above enumerated articles of a guest in his inn, caused by the theft or negligence of the innkeeper or any of his servants. ”
Notwithstanding defendant relies upon the limitation of liability provided in the statute, in passing upon the issue here involved we must read the statute as a whole and apply it to the facts of the case. Doing so brings the conclusion that decision herein is controlled by the above italicized provisions in the statute. There is no controversy herein but that plaintiff delivered to defendant’s clerk the envelope containing $3,500, that it was placed in defendant’s safe and was not returned to plaintiff when demanded. In the absence of any other explanation the loss is presumed to have been caused by the theft or negligence of the innkeeper or his employees, and the innkeeper is liable to the guest. The burden of showing the absence of such theft or negligence incident to the loss is on the innkeeper.
“Under these circumstances, plaintiffs made out a prima facie case by showing the property in the defendants’ possession, and refusal or neglect to return on demand. The onus of exoneration was then upon the defendants. 3 Am. & Eng. Enc. Law (2d Ed.), 750. The rule as there stated is that, when the chattels are not returned at all, the law presumes negligence, and casts upon the bailee the onus of showing he was not negligent. This, undoubtedly, is the more modern and reasonable rule.” (Citing cases). Baehr v. Downey, supra.
To the same effect see Davis v, Cohen, supra.
Defendant herein failed to establish its freedom from liability in the above respects and plaintiff is therefore entitled to recover. The circuit judge correctly so held.
Defendant also asserts nonliability on the ground that its clerk, in accepting from plaintiff the envelope and its contents, acted outside of the. scope of his authority. This contention is based upon printed matter on the envelope which plaintiff signed. It reads:
“In accepting this envelope and contents for safekeeping, we assume no liability other than that provided for in the innkeeper’s act of this State, which has limited our liability so that in no event can we be liable for more than the amount specified in said act. The employee, accepting this envelope has no authority to accept same if the contents are valued at more than the amount specified in said act, namely, $250.
“The contents of this envelope do not exceed a value of $-.
“Signature of Depositor-.”
We think there are two reasons why defendant cannot successfully urge such defense.
(1) The record discloses that this limitation of authority was commonly disregarded by defendant’s clerks and that such disregard of this limitation was known to the president of defendant corporation. We are in accord with the circuit judge, who, in his opinion, stated:
“All of the defendant’s clerks testify that it was not the practice to fill out the amounts taken in and the president of the company testifies that he ‘was around the building. ’ * * * The president, Mr. .Kowall, was around the building. He had access to the safety deposit box including all these envelopes. He was not enforcing this printed statement. # % S»
“While it is true that the statement that the clerk had no authority to accept the .envelope was printed thereon, it is a fact that he did accept it and -that the previous conduct of the defendant through its officer, the president, constituted a waiver of the instruction and now estops the defendant from claiming the benefit of the same.”
(2) Further, defendant could not, by the printed matter on the envelope limiting the clerk’s authority but which limitation was not adhered to by defendant, deprive the guests of the statutory provision: “But every innkeeper shall be liable for any loss of the above enumerated articles of a guest in his inn, caused by the theft or negligence of the innkeeper or any of his servants. ” (2 Comp. Laws 1929, § 8804 [Stat. Ann. § 18.312]) Under the statutory provision just quoted defendant was legally obligated to reimburse plaintiff for the total amount of his loss.
The judgment entered in the circuit court is affirmed, with costs to appellee.
Bushnell, C. J., and Sharpe, Boyles, Reid, Dethmers, Butzel, and Carr, JJ., concurred. ,
Sec. 2. No innkeeper, whether individual, partnership or corporation, who constantly has in his inn a metal safe or suitable vault in good order, and fit for the custody of money, bank notes, jewelry, articles of gold and silver manufacture, precious stones, personal ornaments, railroad mileage books or tickets, negotiable or valuable papers and bullion, and who keeps on the doors of the sleeping rooms used by his guests suitable locks and bolts, and on the transoms and windows of said rooms suitable fastenings, and who keeps a copy of this section printed in distinct type constantly and conspicuously suspended in the office and in the ladies’ parlor or sitting room, bar-room, wash-room and in five other conspicuous places in said inn, or in not less than ten conspicuous places in all in said inn, shall be liable for the loss of or injury to any such property belonging to any guest, unless such guest has offered to deliver the same to such innkeeper for custody in such metal safe or vault, and such, innkeeper has refused or omitted to take it and deposit it in such safe or vault for custody, and to give such guest a receipt therefor: Provided, however, That the keeper of any inn shall not be obliged to receive from any one guest for deposit in such safe or vault any property hereinbefore described exceeding a total value of two hundred fifty dollars, except under special agreement as hereinbefore provided, and shall not be liable for any excess of such property whether received or not, but every innkeeper shall be liable for any loss of the above enumerated articles of a guest in his inn, caused by the theft or negligence of the innkeeper or any of his servants. (2 Comp. Laws 1929, § 8804 [Stat. Ann. § 18.312]) | [
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Boyles, J.
This is an appeal in the nature of mandamus from an order continuing the preliminary examination in the above case made by Honorable Chester P. O’Hara, one of the circuit judges for Wayne county sitting as the examining magistrate in Ingham county. Appellants claim that the denial of their repeated demands to conclude their preliminary examination on the charges against them and the repeated-granting of continuances for more than 18 months over their objections, is a violation of their constitutional and statutory right to a speedy examination and trial. The delay has been caused by the refusal of one Charles P. Hemans, claimed by the prosecution to be the main witness against appellants, to testify at such examination. The question here for decision is whether the refusal of Hemans to testify and the inability of the prosecution thus far to obtain his testimony constitutes good cause for a further adjournment after seven previous adjournments and for more than 18 months.
On July 20, 1946, Honorable Louis E. Coash, one of the circuit judges for Ingham county, acting as a so-called one-man grand jury under 3 Comp. Laws 1929, §17217 (Stat. Ann. § 28.943),. issued a warrant for the arrest of the appellants herein, charging them with conspiracy to obstruct legislation and wilfully and corruptly to influence the action of the legislature, by offering and receiving bribes. The defendants appeared in court and were admitted to bail. Examination before Judge O’Hara as said examining magistrate was commenced September 10, 1946, and witnesses were examined on various dates from September 10 through September 25, 1946. On the latter date the prosecution moved for a con tixiuance of the examination because of its inability to produce Hemans as a witness, due to his absence from the State. Over objections of the defendants and notwithstanding their demand that the hearing continue, the examination was adjourned to October 9, 1946.
Prior to October 9, 1946, appellants’ counsel were advised that the examination would be continued to October 16, 1946. On that date the prosecution produced Mr. Hemans as a witness for the people. He refused to answer certain questions on the ground that the answers might tend to incriminate him in a pending Federal prosecution. On September 16, 1946, he had been indicted by a Federal grand jury for leaving Michigan and traveling in interstate commerce with intent to avoid giving testimony in this matter, in violation of 48 Stat. at L. 782, as amended by 60 Stat. at L. 789 (18 USCA 1947 Cum. Supp. §408e). (He was convicted of this offense on November 8, 1946, sentenced to a Federal penitentiary for a term of four years and appealed to the United States supreme court. See Hemans v. United States [C. C. A.], 163 Fed. [2d] 228, certiorari denied October 20, 1947, 332 U. S. 801 [68 Sup. Ct. 100, 92 L. Ed.-].) Said conviction and sentence were thus affirmed.
On October 17, 1946, the examining magistrate upheld Hemans’ right to refuse to testify. To permit an appeal by the prosecution from said ruling of the magistrate, and over the objection of the defendants, the examination was then further adjourned to January 6, 1947. Thereupon the prosecution, on leave granted, appealed said ruling to this Court.
Because that appeal was still pending, and over the continued objections and opposition of the defendants, the examination was again adjourned to April 28, 1947, and defendants’ motion to dismiss was denied on that date. The examination was then adjourned to June 30, 1947, and to October 9, 1947. On July 28, 1947, the United States circuit court of appeals for the sixth circuit affirmed Hemans’ conviction of the offense charged in Federal court, whereupon, a petition for certiorari was filed in the United States supreme court and denied on October 20, 1947, as hereinbefore stated.
On October 9, 1947, the prosecution moved for a further continuance because its appeal to this Court had not been-decided, and because Hemans’ appeal from his conviction in Federal court had not been finally determined. At that time the prosecution offered an affidavit pursuant to Michigan Court Rule No. 36 (1945), as to the facts expected to be proved by Hemans as a witness and the diligence used to procure his attendance. Over strenuous protests by the defendants and notwithstanding their renewed assertions of their right to a speedy examination and trial, and despite their demands in open court that the examination be brought to a conclusion or the proceedings be dismissed, the magistrate again adjourned the examination to November 13, 1947.
On October 13, 1947, this Court affirmed the ruling’ of Judge O’Hara and upheld Hemans’ privilege against-self-incrimination. People v. Den Uyl (In re Hemans), 318 Mich. 645. Hemans’ application for certiorari from Ms conviction on the. Federal charge having been denied by the United States supreme court on October 20, 1947, both of the pending appeals had thus come to a final determination. Thereupon the examination before Judge O’Hara was resumed on November 13, 1947. Hemans again refused to answer certain essential questions and was adjudged guilty of contempt. The magistrate directed the prosecution to submit a warrant for his signature, to become effective upon the release of the witness from Federal imprisonment (presumably on November 8, 1950), then committing the witness to the county jail until such time as he would answer the questions or be discharged according to law. Hemans’ four-year sentence on which he is still confined in the Federal penitentiary, unless he should be given a good-time allowance of which this Court has not been informed, would not expire until November 8, 1950.
The prosecution then moved for a further continuance until such time as Hemans should testify, or be dead, or otherwise incapable of testifying. Over further objections of defendants and their motions to dismiss, the examination was then adjourned until March 24, 1948. The court stated that the witness would be permitted to purge himself at any time. From said order of continuance the defendants have appealed to this Court in the nature of mandamus, seeking a vacation of the order granting said continuance, and asking that the magistrate be directed to proceed forthwith to a conclusion of the preliminary examination. The question now before us for determination is whether, under these circumstances, the constitutional and statutory right of the appellants to a speedy trial has been violated.
It will be seen that the lapse of time from appellants ’ arrest to the last adjourned date of the examination is approximately 20 months, and from the commencement of the examination over 18 months. The adjourned date is during the sixth term of court after the commencement of the examination. If continuances were allowable until the expiration of Hemans’ term in the Federal penitentiary, the lapse of time between the arrest of the appellants and the time of Hemans’ release (without good-time allowance) would be more than four years.
The Michigan Constitution (1908), art. 2, § 19, provides:
“In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury. ’ ’
The statutory provisions which apply to the question at bar are as follows:
“The State and accused shall be entitled to a prompt examination and determination by the examining magistrate in all criminal causes and it is hereby made the duty of all courts and public officers having duties to perform in connection with such examination, to bring them to a final determination without delay except as it may be necessary to secure to the accused a fair and impartial examination.” 3 Comp. Laws 1929, §17193 (Stat. Ann. § 28.919).
“The magistrate before whom any person is brought on a charge of having committed an offense not cognizable by a justice of the peace, shall set a day for examination not exceeding 10 days thereafter, at which time he shall examine the complainant and the witnesses in support of the prosecution, on oath in the presence of the prisoner, in regard to the offense charged and in regard to any other matters connected with such charge which such magistrate may deem pertinent.” 3 Comp. Laws 1929, § 17196 (Stat. Ann. § 28.922).
“Any magistrate may adjourn an examination for an offense not cognizable by him if the same be necessary, to the same or a different place in the county as such magistrate shall deem necessary; # # * Provided, That no adjournments, continuances or delays of such examination shall be granted by such magistrate except for good cause shown.” 3 Comp. Laws 1929, § 17199 (Stat. Ann. § 28.925).
“The people of this State and persons charged with crime are entitled to and shall have a speedy-trial and determination of all prosecutions and it is hereby made the duty of all public officers having' duties to perform in any criminal case, to bring such case to a final determination without delay except as may be necessary to secure to the accused a fair and impartial trial.” 3 Comp. Laws 1929, § 17294 (Stat. Ann. § 28.1024).
The precise question before us is as to the nature of the speedy trial thus guaranteed by the Constitution and statutes. Since they do not contain, as do the statutes of many States, a specific limitation of time that may elapse before trial, it is necessary to examine the history of these provisions and their counterparts in other jurisdictions, together with the principles laid down by judicial decision.
The right to a speedy trial may be traced, in the first instance, to the habeas corpus act of 1679 (31 Car. II, chap. 2) which provided that every person committed for treason or felony, if not indicted and tried in the second term or session, should be discharged from his imprisonment for such imputed offense. 3 Blackstone’s Commentaries, ch. 8, p. 136. It was stated by Cooley, J., In the Matter of Jackson, 15 Mich. 417, 435, 436, that the habeas corpus act created no new rights, but afforded a better means of enforcing rights already established by the common law. And the principles of the habeas corpus act have become a part of our common law. 1 Cooley, Constitutional Limitations (8th Ed.), p. 646 footnote, 718; 2 Kent’s Commentaries (14th Ed.), p. 27. It is therefore proper to look to the common law for some indication of the meaning of the phrase ‘ ‘ speedy trial. ’ ’
In United States v. Fox, 3 Mont. 512, a frequently cited case, the court said:
“Some idea of the term, ‘speedy trial’ at common law may he gathered from the fact that by that law, in order to insure the trial of all prisoners within a certain time, a patent in the nature of a letter is issued from the king to certain persons appointing them his, justices, and authorizing them to deliver his jails. Bouv. Law. Dic., title Gaol Delivery.
“The jails are thus cleared and all offenders tried, punished or delivered twice in every year, 2 Blackstone’s Commentaries (Shars. Ed.), book IV, 270.”
Many States have enacted statutes providing a time limitation upon delay of trial. The statutes are held to be supplementary to the constitutional provisions for speedy trial and enacted to give it concrete form and force. The time limit generally prescribed, with conditions of further delay, is from 60 days to three terms of court. People v. Foster, 261 Mich. 247. These statutes are a further indication of what has commonly been accepted as a reasonable time within which trial must take place. Such an indication may be seen in 3 Comp. Laws 1929, § 17252 (Stat. Ann. § 28.978). Although this section does not apply specifically to prisoners on bail, it does indicate the legislative policy upon the procedure to secure a speedy trial (People v. Foster, supra, 254). Said section provides:
“Every person held in prison upon an indictment shall, if he require it, be tried at the next term of court after the expiration of 6 months from the time when he was imprisoned, or shall be bailed upon his own recognizance, unless it shall appear to the satisfaction of the court that the witnesses on behalf of the people have been enticed or kept away, or are detained and prevented from attending court by sickness, or some inevitable accident.”
In Hicks v. Judge of Recorder’s Court of Detroit, 236 Mich. 689, the Court said:
“In view of this constitutional provision it becomes, necessary to inquire what a speedy trial means. We apprehend it means such reasonable time under all the attendant circumstances as will give the people an opportunity to present its case in court. 16 C. J. p. 439. A speedy trial does not mean that the-defendant is entitled to have his trial commence immediately after being bound over to the trial court. What would be a reasonable time in one case would be perhaps unreasonable in another. The question might be affected by the gravity of the offense, the number of witnesses involved, the terms of court, and many other circumstances. Owing to this, much must necessarily be left to the discretion of the trial court.”
In that case it was held that an order entered on the prosecutor’s motion, for an indefinite postponement, after trial had already been postponed nearly 18 months, on the charge of perjury in the probate of a will, for the reason that the will case was still pending in circuit court, was an abuse of discretion and an infringement of accused’s constitutional right. The Court granted mandamus, directing the trial court to act in the matter within 30 days.
It is clear, then, that lapse of time is not the only factor to be considered, but is one of the circumstances to be taken into account. State, ex rel. Eubanks, v. Cole, 4 Okla. Crim. 25 (109 Pac. 736, 743). The absence of a material witness is good cause for continuance for a reasonable period, where it appears probable that the witness will be produced and will testify. In Regina v. Bowen, 9 Car. & P. 509 (173 Eng. Rep. 933 [nisi prius]), a prisoner had been committed before the spring assizes for shooting, and trial was postponed to the summer assizes on the ground that the party shot was too ill to attend. At the summer assizes, the party injured having died, a true bill of murder was found against the accused. It was held, that the prosecution was entitled to postpone trial until the next spring assizes, on the ground of illness of a material witness, and the accused was not entitled to be discharged under the habeas corpus act. The court said:
“I am bound to postpone this trial. Who can prevent such an occurrence as this? I have as great a respect as any man for the habeas corpus act; but it is a human law, and must be humanly interpreted. The proviso is, that the prisoners should be indicted and tried at the second assizes: Now he is indicted, but his trial must be subject'to human contingency.”
In Ford v. Superior Court, 17 Cal. App. 1 (118 Pac. 96), cited in People v. Foster, supra, and approved in Harris v. Municipal Court of City of Los Angeles, 209 Cal. 55 (285 Pac. 699), the court made the following statement (p. 5):
“ ‘It is well to remember that this case involves fundamental rights and is of universal interest. Around those rights the English have waged their great battle for liberty. Without the narration of the conflicts to which they have given rise the history of the English people would be a dull affair. The right of the government with reference to persons accused of crime has been, and is yet, a matter of grave consideration. It led to the agitation which wrung from power the Great Charter, the Petition of Right and the Habeas Corpus Act. All the great achievements in favor of individual liberty of which the English people are so justly proud may be said to have come through contests over the rights of persons imprisoned for supposed crime.’ (In re Begerow, 133 Cal. 349, [65 Pac. 828, 56 L. R. A. 513, 85 Am. St. Rep. 178].)”
One of the circumstances which will constitute good cause for delay, again within reasonable limits of time, is the taking of an appeal, whether by the State or another party. See People v. Giesea, 63 Cal. 345, and the annotation in 56 L. R. A. 513, 519. The right of speedy trial should not operate to deprive the State of a reasonable opportunity of fairly prosecuting criminals. State v. Keefe, 17 Wyo. 227 (98 Pac. 122, 22 L. R. A. [N. S.] 896, 17 Ann. Cas. 161). The prosecution is entitled to a reasonable time in which to secure the attendance of witnesses. State v. Pratt, 20 S. D. 440 (107 N. W. 538, 11 Ann. Cas. 1049).
It is sometimes said that a speedy trial means a trial regulated by fixed rules of law, and that delay created by operation of those rules is not included in the meaning of the constitutional provision. See Nixon v. State, 10 Miss. 497, 507 (41 Am. Dec. 601); Arrowsmith v. State, 131 Tenn. 480 (175 S. W. 545, 547, L. R. A. 1915 E, 363; Ex parte Munger, 29 Okla. Crim. 407 (234 Pac. 219, 221). But the rules of law must be such as to insure the protection of the constitutional guarantee.
There is a conflict of decision as to the rights of an accused at liberty on bail. Some courts hold that at least the statutory limitations of time do not apply. Hammond v. State, 39 Neb. 252 (58 N. W. 92); State v. Williams, 35 S. C. 160 (14 S. E. 309). But in this State an accused on bail does not lose his constitutional privilege. Hicks v. Judge of Recorder’s Court, supra, 691. This Court and others have recognized that the privilege is a protection, not only against the hardships of imprisonment, but also against the harassment of being subjected, to accusation, with its harmful effect on the defendant’s reputation and business affairs. See State v. Keefe, supra; Pines v. Woodbury District Court, 233 Iowa, 1284 (10 N. W. [2d] 574); Ford v. Superior Court, supra; Harris v. Municipal Court of City of Los Angeles, supra. The fact that defendant is at liberty is a fact to be taken into consideration with the others in determining whether the case has been delayed for an unreasonable time. People v. Foster, supra, 252; People v. Shufelt, 61 Mich. 237, 241.
Again, it is argued that unless the State is at fault, a continuance should always be granted. State v. Mollineaux, 149 Mo. 646 (51 S. W. 462); Ex parte Meadows, 71 Okla. Crim. 353 (112 Pac. [2d] 419); Commonwealth v. Carter, 28 Mass. (11 Pick.) 277. But the latter case involved no constitutional provision and the question was not as to the right of a speedy trial, but rather as to the right to bail. In the first two cases the defendant had acquiesced m the delay, which is not the situation here. 'Where neither the State nor the defendant has been at fault and the delay is due to other, circumstances, there must yet,, be a limit to the time during which trial is delayed. No showing has been made in the case at bar, that the refusal of Hemans to testify has been procured by or connived at by the defendants. Under those circumstances something more must be shown to justify so long a delay, than the materiality of his testimony. It must be shown that there is a reasonable probability of his testifying at the adjourned date. See Benton v. Commonwealth, 90 Va. 328 (18 S. E. 282), and 91 Va. 782 (21 S. E. 495), in which a continuance of one month to await expiration of.the imprisonment of defendant’s alleged accomplice, a convicted felon, so that he might be a competent witness, was held reversible error. (The strictness of the decision as to the time inyolved was due, however, not to the constitutional guarantee but to a statutory requirement.) In Ford v. Superior Court, supra, at 10, 11 and 12, it was held that the absence alone of an indispensable witness from the State is not good cause for delay. There must also be shown the probability that he will testify. The court said:
‘ ‘ To this need only be added that a showing made in support of an application for a continuance by either party, in a civil or criminal case, must contain a definite statement of facts from which it may be reasonably inferred that the absent witness will return or can be brought back to the jurisdiction within such time as to prevent an unreasonable delay in the trial of the case and be available as a witness at the time to which the continuance is ordered.
“As a matter of course, the rule is applied with ever-increasing rigidity where repeated continuances are asked for, and in such a case a stronger showing of diligence and certainty is required in support of each successive application. . * * *
“As to the third requirement it appears that the witness, taking advantage of the situation, as might be expected of any man in his predicament, placed himself without the jurisdiction of the court and beyond all reach of process. The facts of this case do not warrant the ‘inference that in all likelihood he will return,’ but if such an inference could be fairly deduced from any of the circumstances surrounding the departure of the witness, it would be immediately met and overcome by his expressed intention that if he ever returned to this jurisdiction it would not be at a time when he could be compelled to attend and testify in any of the cases pending against petitioner. However that may be, it is certain that no such remote inference as is here relied upon will suffice as a showing of good cause for the indefinite postponement of the trial of a criminal case. It concerns the public that there should be an end of litigation in criminal as well as in civil cases, and the law will not tolerate the repeated and never-ending postponement of a trial upon the vague hypothesis that at some indefinite time in the future a fugitive witness may possibly return to tbe jurisdiction, and thus be available as a witness in the case. ”
Hemans has more than two and one-half years yet to serve on his Federal sentence and nothing in this record indicates any reasonable probability that he will testify on behalf of the State during that time. Nor is there any fair indication as to the length of time after the lapse of said two and one-half years, during which Hemans might continue to refuse to testify, even though under the compulsion of continued sentences for contempt for said refusal,, such as are now contemplated by the prosecution. And in this connection, while the immediate question here refers to the length of time during which a delay in concluding the preliminary examination may be had, that issue has a direct bearing on the right of the appellants to a speedy trial and the determination of the charges against them. They have the right to an examination' before a magistrate, and obviously they cannot be tried for the felony with which they are charged until after they have been bound over to the circuit court of Ingham county, which court would have jurisdiction of such trial.
In Commonwealth v. Brummer, 8 Phila. 607, it was held that defendant should be discharged under the fourth-term rule, having been, imprisoned four terms without a trial, where continuance had been granted by the court to obtain a witness who was permanently residing beyond the jurisdiction of the court, and there was no probability, that he could be produced.
And in Regina v. Bridgman, Car. & M. 271 (174 Eng. Rep. 503), it was held that prisoners were entitled to be discharged from their recognizances where the trial had been postponed for two assizes, and there was no prospect of the prosecuting wit ness soon returning from India, where he had gone as a soldier.
We do not go so far as to hold with Lord Mansfield, C. J., who said in King v. D’Eon (K. B. 1764), 1 Blackstone’s W. Rep. 510 (96 Eng. Rep. 295):
. “Three things are necessary to put off a trial. 1. That the witness is really material, and appears to the court so to he. * * * 2. That the party who applies has been guilty of no neglect. 3. That the witness can be had, at the time to which the trial is deferred.”
We do hold that there must be a probability, as distinguished from a mere possibility, that the witness can be had at the time to which the examination is deferred, and that he will testify.
We do not agree with appellee’s argument, that because each continuance alone was for a brief period and might have been justified standing by itself, therefore the constitutional guarantee has not been exceeded. The delay is to be regarded in its entirety, in weighing it against the causes for further delay.
Nor do we agree that defendants have not been injured. Aside from the damage to their reputations, and the mental harassment of being made to await trial, injury is conclusively presumed, where constitutional rights are invaded. People v. Murray, 89 Mich. 276 (14 L. R. A. 809, 28 Am. St. Rep. 294).
No authority has been found on the question raised, whether denial of a speedy trial is denial of due process under the Fourteenth. Amendment to the United States Constitution. In view of our disposition of this case, that question need not be considered.
Because of the gravity of the offense with which defendants are charged, we are reluctant to grant the order requested. But the Court should not deny a right so important. In re Begerow, supra. We have seen no case in which a trial has been delayed this long, without the acquiescence of the defendant.
It is for the examining magistrate, to decide whether the testimony already adduced is sufficient to bind the defendants over to the circuit court for trial, whether to afford an opportunity for further testimony, or to discharge the defendants. Reasonable opportunity should be allowed the examining-magistrate for such decision. Mandamus will issue directing- the examining magistrate to proceed with and conclude the examination within 60 days, or directing the magistrate to otherwise dismiss said charges and discharge the defendants.
Bushnell, C. J., and Sharpe, Reid, North, Dethmers, and Butzel, JJ., concurred. Carr, J. did not sit. | [
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North, J.
George Geanakopoulos, having been convicted on trial by jury of statutory rape and sentenced, has appealed. The offense is charged to have been committed March 3, 1943, on one Katherine Bokach, who became 16 years of age March 20, 1943. Through Mrs. Geanakopoulos, Katherine, about the middle of February, 1943, was employed to work in a Port Huron restaurant which was owned and operated by George Geanakopoulos. Incident to her employment it was arranged that Katherine should have an upstairs room at the Geanakopoulos home in Port Huron. Her hours of employment were from midnight to 8 a. m.
According to Katherine’s testimony, as she came down the stairs in the Geanakopoulos household shortly before midnight, March 3, 1943, on her way to her work, the defendant who was in the hallway, took hold of Katherine’s arm and “pulled” her to the adjoining sitting room; that he kissed her several times, and then took her by the arm into his bedroom which was “next to this sitting room,” and there had sexual intercourse with her.
In his testimony the defendant denied having had sexual intercourse with Katherine or that he was present in the Geanakopoulos home at the time of the alleged offense. He sought to prove a defense in the nature of an alibi by witnesses who testified that at the time of the. alleged offense he was at his restaurant. He also presented character witnesses who testified in his behalf.
Without the matter having been previously in any way referred to at the trial, the attorney who then represented defendant, on cross-examination of Katherine had her testify in response to his questions that on a later date (March 27, 1943) than the offense charged and shortly after Katherine became 16 years of age, she had sexual intercourse with defendant in her upstairs room at the Geanakopoulos home. The attorneys representing defendant on this appeal now assert that the admission of the testimony as to subsequent sexual relations constituted error, and, also, that the trial judge was in error in charging the jury that the only use the jury could make of the testimony relating to subsequent relations would be in passing upon “the credibility ©f either of the two witnesses, ’ ’ meaning Katherine and defendant. There is no merit to either of these alleged grounds of error. The record clearly discloses that attorney Mann, defendant’s trial counsel, even after the court had called to his attention that the testimony of subsequent acts was at least of doubtful admissibility, insisted it was admissible as bearing upon credibility. In defendant’s brief his counsel now say: . .
‘ ‘ The testimony of the incidents of March 27,1943, was not admissible for any purpose, and the trial court should have charged the jury not to consider it for any purpose whatsoever.”
The position now taken by defendant’s counsel is directly contrary to that taken by defendant’s attorney at the trial; and further defendant did not request the court to charge the jury that the testimony should not be considered for any purpose. See People v. Barringer, 311 Mich. 345; 3 Comp. Laws 1929, § 17322 (Stat. Ann. § 28.1052). As indicated, the testimony of which defendant now complains was brought; into the case in his behalf by his own attorney. Hence it might well be said in the instant case, as in People v. Prevost, 219 Mich. 233, 245: “If any ill effects resulted from it in the minds of the jurors the defendant has the satisfaction of knowing that no one was to blame for the outbreak but himself.” Earlier in tlie Court’s opinion in the Prevost Case, concerning an alleged prejudicial answer made by a witness on cross-examination by the prosecutor, it is said:
‘‘This was not responsive to the prosecutor’s question, but defendant’s counsel made no objection to the answer nor did they move to strike it out. Failing to do this they cannot now complain. ’ ’
Another alleged error is presented by the following question in defendant’s brief:
“Did the trial court err in refusing to permit defendant to cross-examine prosecutrix as to having boy friends in her room after March 3, 1943?”
In the above respect the contents of the record is indicated by the following questions asked on cross-examination of Katherine:
“Q. Did you ever have soldier friends come over to see you? * * *
“Q. And during the time you were there (at the .G-eanakopoulos home), were there soldiers and sailors that came to see you ? * * *
“Q. Were soldiers and sailors in your room upstairs ? ’ ’
Objection to .each of the above questions was sustained ; but the court ruled that the inquiry would be proper if “confined to prior to the date of this’’.alleged offense. Thereupon the cross-examination continued as follows:
“Q. Now, between that date that you went there (to the Geanakopofilos home) and the 3d of March did you have soldiers and sailors in your room upstairs?
“A. No, I didn’t. * * ^
“Q. You swear there weren’t soldiers and sailors in-your room between the time you went there and March 3, 1943 ?
“A. No, there wasn’t any there.”
The court’s ruling did not constitute prejudicial error. The fact that Katherine may have had boy friends as callers would not have a material bearing upon her credibility. Defendant’s counsel at no time advised the court he proposed to prove that there were immoral relations between Katherine and her callers, nor is such a claim asserted in this Court.
Defendant further contends the trial court erred in permitting, over objection, on defendant’s cross-examination, the following:
“Q. "Were you responsible, George, for a child being born to a woman in your employ at one time ?
“A. No, sir, the first time I ever hear in my life anything like that.
“Q. Your answer then to that question is ‘no’?
“A. No.”
Defendant on direct examination had testified that he previously had pleaded guilty to a charge of adultery and in that answer he stated: ‘ ‘ That is the only time I have ever been involved with the law.” Regardless of whether there was any connection between his direct testimony and the above cross-examination, the latter did not constitute error. In People v. La Londe, 197 Mich. 76, a headnote reads:
“In a criminal prosecution for (statutory) rape, a question asked defendant on cross-examination as to whether he had been responsible for the birth of a child by a woman employed in his” office a number of years prior to the offense charged, while inadmissible to show that defendant had been guilty of similar offenses, was admissible as affecting Ms credibility.”
Incident to another phase of this appeal, defendant presents the following questions :
“Did the trial court err in stating to the jury that prosecutrix was not arrested, that she was in custody of the probate court, when, as a matter of fact, she was in the custody of the Port Huron police'?
“Was it error to permit the arresting officers of Katherine Bokach to testify to a collateral issue that the proceedings for the unlawful.taking of the fur coat of defendant’s daughter were dismissed?”
Presentation of the pertinent factual background necessitates recital of the following. Defendant’s daughter Lillian, who was living in her parent’s home, went on a visit to Detroit. In Lillian’s absence Katherine and a girl friend, who at times stayed in Katherine’s room, took possession of a fur coat and a fur jacket which belonged to Lillian. The two girls wore the garments to. a dance but thereafter both the coat and the jacket were returned to the Greanakopoulos home. For some reason not appearing in the record, Katherine’s girl friend destroyed the jacket by burning it in the furnace of the Greanakopoulos home. Lillian made complaint to the Port Huron police and as a result the two girls were taken into custody. Katherine was taken by police officers to the juvenile quarters, where she was questioned by the police matron and other officers. It was while being so questioned on April 23d that Katherine first revealed the circumstances out of which the present prosecution arose. Evidently defendant’s counsel relied upon the testimony disclosing in detail the foregoing as being the motive which led Katherine to unjustly charge, as defendant asserts, that he committed the offense for which he was prosecuted. Some controversy arose between counsel as to whether incident to Katherine’s having been taken into custody by the police it was proper to term it an “arrest,” she being a juvenile. All the details of what occurred incident to the taking of the coat, and jacket and Katherine’s subsequent detention were covered by the testimony. It finally culminated in the following:
“The Court: Well, I doubt very much if a juvenile is arrested, Mr. Mann, when they are detained by the probate court, I think that is the purpose of the law.
“Mr. Mann: I will eliminate the word ‘arrested.’ ”
We are finable to find that any prejudice to defendant resulted from the trial court having stated in the presence of the jury, “I don’t think you do arrest a child. In all probability she was detained by the juvenile authorities. The police might take some part in it.”
The record does not disclose that either of the police officers testified “that the proceedings for the unlawful taking of the fur coat of defendant’s daughter were dismissed,” or that either officer testified to that effect. Had such testimony been given, it would not have constituted prejudicial error. Further, so far as disclosed by the record, no objection was made to any of the testimony of either officer.
Defendant complains of the charge to the jury in this respect. The circuit judge in an effort to make clear to the jury a statement that the main offense of statutory rape included the lesser offenses of assault with intent to commit rape and, also, assault and battery, charged the jury as follows:
“This jury is, of course, not familiar with questions of rape. You probably are more or less familiar with — somewhat familiar perhaps with, we’ll say, the charge of murder. Now, to explain what I mean, or to give you some clarity in the instructions I am to give you, in a charge of murder ordinarily that includes murder in the first degree, murder in the second degree and the charge of manslaughter, the two other charges being less than murder, and it is the duty of the courts to instruct the jury on all three of those charges. So, the charge of rape includes two lesser charges known as assualt with intent to commit the crime of rape, and the offense known as assault and battery. That one, I suppose, you have heard about, assault and battery. * * *
“Now, let’s have it clear-; you can find him guilty, if he committed that act of March 3, 1943. * * *
“If you believe beyond a reasonable doubt that what the young woman said on March 3, 1943 happened, whether she consented or whether she didn’t consent makes ho difference, your verdict should be guilty.” _
We are not impressed with defendant’s contention that:
“This instruction had no bearing whatever upon any issue in this case. It could only tend to confuse the jury. It was extremely prejudicial, for it squarely brought before the jury- a vicious crime which should never have been called to the jury’s attention, and had no proper place in this case.”
The court’s reference above to a charge of murder, et cetera, was to a phase of the law that is quite commonly known to persons who serve as jurors. It was not prejudicial under the record in this case, which, we think is materially different from the circumstances disclosed in the case of People v. Cismadija, 167 Mich. 210, upon which defendant relies.
Nor do we find merit in defendant’s contention that the verdict was ‘ ‘ contrary to the overwhelming weight of the competent evidence.” Instead, our review of the record brings the conviction that the testimony was ample, as the jury found, to establish defendant’s guilt beyond a reasonable doubt.
Defendant’s remaining contention meriting comment is that the trial court erred in denying defendant’s motion for a new trial based upon after-discovered evidence. Defendant stresses that the only testimony at the trial of the case as to Katherine’s age at the time of the alleged offense was that given by Katherine, whereas it might have been corroborated by other members of her family who were present at the tidal. Katherine’s testimony as to her age was not controverted at the time of the trial. In connection with defendant’s motion for a new trial on the ground of newly-discovered evidence the testimony off Rev. Peter P. Karaffa, formerly pastor of an Orthodox Greek Catholic Church'in Detroit, was taken. According to this testimony the witness, who had kept for his personal use a record of Ms church activities in a small paper bound book, baptized Katherine June 20, 1926, and his record disclosed that she was born April 20, 1926. Entries in the witness’ memorandum book appear in chronological order but they are in pencil and except as to dates are almost wholly written in Russian. Obviously if the witness’ record was correct Katherine was past 16 years of age at the time of the alleged offense. The trial judge found the testimony of Rev. Karaffa “tobe unsatisfactory. ’ ’ In opposition to defendant’s showing on the motion, affidavits of Katherine’s mother and father were submitted, and, also, school records, all of which were in accord with Katherine’s testimony at the trial, that her birth occurred March 20, 1927. And the school records show the birth of Katherine’s brother,'John Bokach, as April 22, 1926, which was the month in which Rev. Karaffa’s record fixed Katherine’s birth. Still further a certified copy from the birth records in Wayne County was produced, and from this it also appeared that Katherine was born March 20, 1927. However the original birth certificate was not filed in the county clerk’s office until November 16, 1942. In view of the foregoing the trial judge was correct in denying the motion for a new trial on the ground of newly-discovered evidence. Under the record incident to the motion for a new-trial it is not at all probable that a different result would be obtained if a new trial were granted. See Marion v. Savin, 315 Mich. 448.
Other reasons and arguments presented by defendant on this appeal have been considered, but we do not find in them justification for setting aside the verdict of guilty rendered by the jury or the sentence imposed by the trial judge. The judgment entered is affirmed.
Bushnell, C. J., and Sharpe, Boyles, Reid, Butzel, and Carr, JJ., concurred. Dethmers, J., did not sit.
See Act No. 328, § 520, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-520, Stat. Ann. § 28.788).—Reporter.
See, also, People v. Zesk, 309 Mich. 129. | [
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Caer, C. J.
While in the employ of defendant on July 7, 1943, plaintiff sustained an injury to her right eye, of such a character as to be compensable under the provisions of the workmen’s compensation law of this State, Act No. 10, Pub. Acts 1912 (1st Ex. Sess.), as amended (2 Comp. Laws 1929, § 8407 et seq. [Stat. Ann. § 17.141 et seq.]). A small piece of steel which she was endeavoring, by the use of pliers, to insert into an airplane wing assembly, slipped, striking the eye in such manner as to cause a laceration of the cornea as well as other injuries to the member. Some two or three weeks 'later it became necessary to remove a part of the lens in order to alleviate the resulting condition. Following this operation plaintiff was discharged from the hospital on August 11, 1943. Under date of' September 20, 1943, defendant filed its report of the injury to plaintiff with the department of labor and industry.
Three or four months after the injury plaintiff resumed her employment at the plant of the defendant. Her work then consisted of inserting screws in pieces of metal. She continued at this labor for nearly a year, receiving treatment during such period for the eye condition. She was again hospitalized in July, 1944, at which time a second operation on the eye was' performed. Thereafter she was again employed by defendant until November 20, 1944, when she was laid off because of lack of work.
An agreement between plaintiff and defendant was filed with the compensation commission of the department of labor and industry on-September 24, 1944, reciting that plaintiff had lost industrial vision in her right eye on July 7,-1943, and providing for compensation at the' rate' of $18 per week for a total of 100 weeks from the date of the injury. This agreement was approved by the compensation commission, and defendant made payments in accordance with its terms for the period referred to therein.
Early in 1945, plaintiff entered the employ of the Pittsburgh Die & Casting Company, at Swissville, Pennsylvania, where she worked until the middle of June, 1945, when she qqit because she caught her hand in a press and was fearful of further injury. Shortly thereafter she went to California where she was employed in a drug store for a short period in October. It is her claim that she quit this employment because of difficulty in distinguishing-various pieces of money that she was required to handle in her work.
On November 27,1945, plaintiff filed a petition for further compensation, in which she referred to the accidental personal injury sustained by her on July 7, 1943, and the compensation that had been paid under the agreement above mentioned. She stated further that since July 5, 1945, she had been disabled in the employment in which she was engaged at the time of the injury and was, for that reason, entitled to further compensation. She further alleged that her condition had become progressively worse, to such an extent that her earning capacity was thereby affected. Based on these averments she asked that she be granted such relief as “she is entitled to under the workmen’s compensation law of Michigan.” To this petition defendant filed its answer, asserting, among other defenses raised, that plaintiff was not- entitled to relief because she had failed to give proper notice to defendant of the condition for which she sought compensation, and that she had not made- proper claim therefor. A hearing before a deputy commissioner of the department of labor and industry resulted in an award to plaintiff of $18 per week for total disability, beginning June 6, 1945. On appeal the compensation commission modified the award in accordance with its finding that plaintiff had been totally disabled since July 1, 1945, and payment of compensation was ordered to begin from the later date. In other'respects the commission’s order af firmed the award of the deputy. From.such order' defendant has appealed.
After discussing the evidence in the case at some length the compensation commission summarized its findings as follows:
“We find that plaintiff has been totally disabled since July 1, 1945 as the result of the accidental personal injury she sustained on July 7, 1943 when employed by the Murray Corporation of America. We further find that plaintiff’s disability is due to a definite pathology in the injured eye which is separate and apart from and in addition to that caused by the loss of vision in the right eye. We further find that such complications are not the usual and natural result of the loss of vision in an eye. We further find there is no relationship between the disabling symptoms and- the loss of vision in the right eye except that both are due to the accident.”
The commission also found specifically that there was no “pathology other than that caused by -¿he direct injury to the right eye.” Dr. Barnett, an ophthalmologist, testified in plaintiff’s behalf, and stated that on an examination made by him he found that the lens had been removed from the eye, but the greater part of the capsule remained and had undergone degenerative changes resulting’ in the formation of little cysts. He testified further that these cysts might break, causing irritation and releasing fluid. It is plaintiff’s claim in substance that the condition causing her disability at the time she filed her petition for further compensation manifested itself in headaches, irritation, and “tearing” of the eye.
The findings of fact set forth in the opinion of the compensation commission are supported by evidence and are, therefore, binding on the court. 2 Comp. Laws 1929, § 8451, as amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8451, Stat. Ann. 1946 Cum. Supp. § 17.186), Tjernstrom v. Ford Motor Co., 285 Mich. 450; Hayward v. Kalamazoo Stove Co., 290 Mich. 610; Ryder v. Johnson, 313 Mich. 702. On the basis of such finding the situation before us involves an injury to the eye, resulting, first, in immediate loss of vision, for which loss compensation has been paid, and, second, in the development and final manifestations of the condition for which plaintiff seeks further compensation in this proceeding..
Defendant does not question the specific findings of fact set forth in the opinion of the compensation commission. It contends, however, that the award made should bé set aside because of plaintiff’s failure to give defendant notice of the condition for which she sought compensation under her petition of November 27,1945, and to file her claim based on such alleged condition within the time prescribed by statute. As before noted, both of these defenses were raised by the answer to plaintiff’s petition. , It is .claimed that the provisions of, 2 Comp. Laws 1929, § 8431 (Stat. Ann. § 17.165), are applicable. Said section, as of the date of the injury, read as follows:
“Seo. 15. No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury shall have been given to the employer within three months after the happening thereof, and unless the claim for compensation with respect to such -injury, which claim may be either oral or in writing, shall have been made within six months after the 'occurrence of the samé; or, in case of the death of the employee, within six months after said death; or, in the event of his physical or mental incapacity, within the first six months during which the injured employee is not physically or mentally incapacitated from making a claim: Provided, however, That in all cases in which the employer has been given notice of the injury, or has notice or knowledge of the same within three months after the happening thereof, but the actual injury, disability or incapacity does not develop or make itself apparent within six months after the happening of the accident, but does develop and make itself apparent at some date subsequent to six months after the happening of the same, claim for compensation may be made within three months after the actual injury, disability or incapacity develops or makes itself apparent to the injured employee, but no such claim shall be valid or effectual for any purpose unless made within two years from the date, the accidental personal injury was sustained: And provided further, That any time during which an injured employee shall be prevented by reason of his physical or mental incapacity from making a claim, shall not be construed to be any part of the six months’ limitation mentioned in this section: And provided further, That in all cases in whichx the employer has been given notice of the happening of the accident, or has notice or knowledge of the happening of said accident, within three months after the happening of the same, ¿nd fails, neglects or refuses to report-said accident to the industrial accident board* as required by the provisions of this act, the statute of limitations shall not run against the claim of the injured employee or his dependents, or in favor of either said employer or his insurer, until a report of said accident shall have been filed with the industrial accident board.”
It is argued by defendant, in effect, that since plaintiff’s condition of total disability did not develop from the loss of vision of the eye, but rather from the original injury, the requirements of the section quoted with reference to the giving of notice and the filing of claim applied to plaintiff’s claim. Emphasis is placed on the finding of the compensation commission that such disability “is due to a definite pathology in the injured eye which is separate and apart from and in addition to that caused by the loss of vision in the right-eye.’’ In effect, it is argued that the same notice was required to be given defendant of the condition set forth in plaintiff’s petition as was prescribed by the statute with reference to original claims. Appellee insists that notice of the injury itself, following its occurrence, and the knowledge of defendant with reference thereto, constituted a sufficient compliance with the requirement of the section above quoted. Attention is called to decisions of this Court declaring the purpose of the notice to the employer. It has been pointed out therein that such purpose is to enable the employer to inquire into the alleged accident and injury8 while the facts are accessible, as well as to take steps that may minimize the loss. Johnson v. Bergland Lumber Co., 231 Mich. 34; Littleton v. Railway Co., Inc., 276 Mich. 41.
Defendant cites and relies on Stackhouse v. General Motors Corp., 290 Mich. 249. In that ease the plaintiff suffered an accidental injury resulting in the amputation of portions of the little finger and of the ring finger on his left hand. Pursuant to an approved agreement he was paid compensation therefor. Nearly four years'later he filed a petition for further compensation, claiming that in -t^e accident the middle finger of the left hand was also injured, and was in such .condition at the time of the filing of the petition as to prevent the plaintiff from working at ordinary labor. It was also claimed that the ends of the stumps of the fingers partially am putated were sore and sensitive. In the original agreement for compensation, based on the partial loss of the two fingers mentioned, nothing was said concerning an injury to the middle finger. The department of labor and industry granted further compensation, but this Court reversed the award on the ground that the claim for compensation for the injury to the middle finger was not filed within the statutory period and, in consequence, the right to recover therefor was barred, citing 2 Comp. Laws 1929, § 8431, above quoted.^ It was further held that the tenderness of the stumps of the amputated fingers was a natural result of the amputation and, therefore, not compensable. The reasons for the conclusion reached as to the withholding of compensation for the injury to the middle finger were indicated in the following language:
“A claim for an injury not covered by an award or agreement for compensation is an original claim and must be filed within the time specified therefor. Ehrhart v. Industrial Accident Commission of California, 172 Cal. 621 (158 Pac. 193, Ann. Cas. 1917 E, 465); Carrico v. Templeton Coal Co., 87 Ind. App. 145 (159 N. E. 695); Miller v. National Roofing Co., 216 App. Div. 612 (215 N. Y. Supp. 547). A claim for a permanent injury or impairment sustained at the outset is an original claim, even though not considered in or covered by a prior award or agreement, and must be filed within the time required for the filing of an original claim. Union Drawn Steel Co. v. Thompson, 89 Ind. App. 380 (165 N. E. 258); Denasoff v. Foundation Co., 86 Ind. App. 272 (155 N. E. 521); Zeller v. Mesker, 85 Ind. App. 659 (155 N. E. 520). And it is not covered by 2 Comp. Laws 1929, §8453 (Stat. Ann. §17.188). A claim for a specific injury is barred if not made within the required time, even though a claim for another and distinct injury arising out of the same accident was timely filed. Union Drawn Steel Co. v. Thompson, supra; Denasoff v. Foundation Co., supra; Zeller v. Mesker, supra; Murphy v. W. O. Cook Construction Co., 130 Kan. 200 (285 Pac. 604). See, also, 71 C. J. p. 1017.”
The opinion of the Court must be construed in the light of the facts under consideration. It is apparent that in the accident in which plaintiff Stackhouse was involved three fingers on his left hand were injured. In other words, the occurrence resulted in damage to each of the (¿bree members mentioned. Had there, been an injury to one finger only, with two or more distinct results ensuing, the situation would be more analogous to the facts in the instant case than it actually is. Plaintiff’s failure to-call attention to the injury to the middle finger at the time of the settlement agreement under which compensation was paid to him was not explained. It must be assumed that he was aware, immediately following the accident, that three fingers had been injured, but for some reason he chose to say nothing at that time concerning the middle finger.
In the case at bar the total disability for which plaintiff sought compensation under her petition of November 27, 1945, was apparently not .known to plaintiff, defendant, or the department of labor and industry, at the time the compensation agreement was made and approved in September, 1944. In fact, under the finding of the compensation commission, the condition of total disability actually began on July 1,1945. Nor are we concerned with injuries to different members, or different parts of the body. There was but one injury to plaintiff’s eye, which injury was caused by the piece of steel striking it, lacerating the cornea and causing, also, other damage, resulting finally in the degeneration of the capsule and the formation of the cysts described by Dr. Barnett. As before noted, there was, nnder the findings of the compensation commission, one injury with two distinct results. Of such injury defendant had notice. In the Stackhouse Case the plaintiff sought to recover for the results of an injury of which the employer did not have notice, and claim for compensation for which was not filed within the statutory period.
If the requirements of the statute above quoted are applicable to plaintiff’s claim for compensation for total disability the award cannot be sustained. As stated the report of the accident and injury was filed by defendant on September 20, 1943. The two-year period within which original claims for compensation are required to be filed, if applicable, began to run from that date. Tinney v. City of Grand Rapids, 274 Mich. 364. A claim subject to such a limitation as to time of filing is barred if presented to the department of labor and industry after expiration of the prescribed period. Peterson v. Fisher Body Co., 201 Mich. 529; Anderson v. Ford Motor Co., 273 Mich. 522; La Luke v. Consumers Power Co., 299 Mich. 625. Under the facts in the instant case, however, we are unable to agree with defendant’s contention that the decision in Stackhouse v. General Motors Corp., supra, is controlling. The case at bar does not involve distinct injuries sustained in an accident, but rather two results of a single injury. The department of labor and industry acquired jurisdiction of the case by virtue of the original proceedings taken before it. Such jurisdiction continued for the purpose of further proceedings for compensation as the development of conditions, brought about by the original injury, might require. The statute in question did not impose on the plaintiff the duty of giving notice of such further development nor did it require plain tiff’s claim for further compensation based thereon to be presented within a prescribed period, as contended by defendant. The requirements in said section as to notice to the employer, and the' limitations with respect to filing claims, did not apply. In Jelusich v. Wisconsin Land & Lumber Co., 267 Mich. 313, 319, it was said:
“Counsel for defendant next contend that plaintiff’s claim is barred by the statute of limitations (3'Comp. Laws 1929, § 13976 ). The limitation within the compensation act, 2 Comp. Laws 1929, § 8431, does not apply, as it relates only to notice of the injury and the making of the first claim. Plaintiff’s disability was continuous and so would not come within the two-year limitation. The statute does not provide any limitation for the making of claims for further compensation under • 2 Comp. Laws 1929, § 8453. These may be made whenever there has been a change in the physical condition of the plaintiff. ’ ’
Other decisions indicating the circumstances under which a petition for further compensation may be ínade are West v. Postum Co., Inc., 260 Mich. 545; Wilson v. Tittle Brothers Packing Co., 269 Mich. 501; Kubiak v. Briggs Manfg. Co., 286 Mich. 329. See, also, annotation to Nelson v. Cambria Coal Co., 178 Tenn. 389 (158 S. W. [2d] 717, 160 S. W. [2d] 412), as reported in 165 A. L. R. 1.
The opinion of the compensation commission made no mention of the claims of the defendant based on the statute above quoted. It is contended, therefore, that such defenses were ignored, although pleaded in defendant’s answer.. In determining that plaintiff was entitled to an award it may be assumed that the commission took into account all facts established by the evidence and the department file in the case, and that dne consideration was given arguments of counsel based on the record. .In the absence of any specific determination by the commission of a matter in controversy this Court is entitled to look to the record for the purpose of determining if the conclusion evidenced by the award was supported by evidence. Thayer v. Berkey & Gay Furniture Co., 220 Mich. 332; Goines v. Kelsey Hayes Wheel Co., 294 Mich. 156; Criss v. Taylor Produce Co,, 313 Mich. 457. There is, however, no dispute with reference to the facts pertaining to the defenses urged in this Court. Under such facts the provisions of the statute relied on by defendant were not a bar to the granting of compensation to plaintiff for the total disability founc] to exist.
The award is affirmed, with costs to plaintiff,
Butzel, Bushnell, Sharpe, Boyles, Reid, North, and Dethmers, JJ., concurred.
This section was amended by Act No. 245, Pub. Acts 1943, effective July 30, 1943 (Comp. Laws Supp. 1945, § 8431, Stat. Ann. 1946 Cum. Supp, § 17,165).
The powers and duties of the industrial aeeident board have been transferred to the department of labor and industry and are administered by the compensation commission thereof and the board abolished. See 2 Comp. Laws 1929, §§ 8310, 8312, as amended by Act No. 241, Pub. Acts 1943 (Comp. Laws Supp. 1945, §§ 8310, $312, Stat. Ann. 1946 Cum. Supp. §§17.1, 17.3). — Repokeeb.
Stat. Ann. § 27.605.—Reporter.
Stat. Ann. § 17.188.—Reporter. | [
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Boyles, J.
The defendant was 16 years of age at the time he is alleged to have committed a felony. He was past 17 at the time when the present criminal proceeding was started against him in the recorder’s court of Detroit. The only question for decision is whether the recorder’s court has jurisdiction without a waiver from the juvenile division of the probate court. A motion to quash was made in recorder’s court, denied, and on leave granted the defendant appeals from the order of denial.
On September 7,1946, the defendant was arrested on a charge of robbery armed on that date, in the city of Detroit. He was then 16 years of age, and on September 8th was removed to the juvenile detention home. On September 11th a complaint was filed and a warrant issued. On September 23d the defendant became 17 years of age. On October 28th the defendant was arraigned in the recorder’s court of Detroit on an information charging said felony, and Ms counsel moved to quash all proceedings against him on the ground that the recorder’s court had no jurisdiction to try him without a waiver of jurisdiction from the juvenile court. On November 25th said motion to quash was granted. The defendant had not moved to have the proceeding transferred to the juvenile division and this Was in legal effect a dismissal of the charge pending against him at that time. On the same date, November 25th, another complaint was filed in recorder’s court charging that the defendant, on September 7, 1946, while armed with a dangerous weapon, assaulted one Edwin Sikorski and feloniously took $86 from his person. On this complaint a warrant was then issued. On December 9th an information was filed in recorder’s court by the prosecuting attorney charging the defendant with the above offense, the defendant was then arraigned, stood mute, and a plea of not guilty was entered. On December 16th defendant’s. counsel filed a motion to quash this proceeding on the grounds (1) that the defendant had already been in jeopardy; (2) that he was under the age of 17 years when the offense was committed and no waiver had been obtained from the juvenile court; (3) that proceedings were commenced September 11th while the defendant was 16 years of age and that the recorder’s court obtained no jurisdiction at that time or any time thereafter, the necessary waiver not having been procured. On January 9, 1947, the motion to quash was denied and on leave granted, this appeal is taken from the order of denial.
The first proceeding came to an end when the court, on November 25, 1946, granted the motion to quash all that proceeding. The defendant had not yet been placed in jeopardy and there was no bar to the subsequent proceeding.
“The respondents were not in jeopardy until a jury of twelve men should he selected and sworn.” People v. Barker, 60 Mich. 277, 290 (1 Am. St. Rep. 501).
“No proceeding in a criminal ease can operate as a bar to further prosecution until the accused has been put in jeopardy, and this can not occur until he has been placed upon trial.” Gaffney v. Missaukee Circuit Judge, 85 Mich. 138, 139.
“A person is in jeopardy when he is put upon, trial in a court of justice charged with a violation' of law.” People v. Powers, 272 Mich. 303, 307.
The jurisdiction and powers of the juvenile division of the probate court are governed by Act No. 54, Pub. Acts 1944 (1st Ex. Sess.), as amended by Act No. 22, Pub. Acts 1946 (1st Ex. Sess.) (Stat. Ann. 1946 Cum. Supp. §§ 27.3178[598.1]-27.3178[598.28]), which act repealed chapter 12 of Act No. 288, Pub. Acts 1939 (the probate code), governing the jurisdiction and powers of said juvenile division, and in lieu thereof added chapter 12a to said probate code for the same purpose. The provisions- of said Act No. 54, as amended (Stat. Ann. 1946 Cum. Supp. §§ 27.3178[598.2]-27.3178 [598.4]), which are pertinent to the present case are as follows:
‘ ‘ Seo. 2. Except as provided herein, the juvenile division of the probate court shall have:
“(a) Exclusive original jurisdiction in proceedings concerning any child under 17 years of age found within the co’unty
“(1) Who has violated any municipal ordinance or law of the State of the United State's;
“Seo. 3. If during the pendency of a criminal charge against any person in any other court, it shall be ascertained that said person is under the age of 17 years, it shall he the duty of such other court to transfer -such case without delay, together with all the papers, documents, and testimony connected therewith, to the juvenile division of the 'probate court of the county in which such other court is situated or in which said person resides. # * *
“Sec. 4. In any case where a child over the age of 15 years is accused of any act the nature of which constitutes a felony, the judge of probate of the county wherein the offense is alleged to have been committed may, after investigation and examination, including notice to parents if address is known, and upon motion of the prosecuting attorney, waive jurisdiction; whereupon it shall be lawful to try such child in the court having general criminal jurisdiction of such offense.”
The last above quoted section 4 must be read together with the first above quoted part of section 2. Under section 2, the juvenile division is given exclusive original jurisdiction of a child under 17 years of age, who has violated any law of the State. It does not confer exclusive original jurisdiction of a child who is over 17 years of age, who has violated any law of the State. Section 4, as applied to the circumstances of this case, means over 15 and under 17 years of age.
Section 3, above quoted, does not require that it shall be the duty of any other court wherein a criminal charge is pending, to transfer the case to the juvenile division, where the child is over 17 years of age. It only makes it the duty of such court to transfer the case to the juvenile division “if during the pendency of a criminal charge * # * it shall be ascertained that said person is under the age of 17 years.”
In the case - at bar, the defendant was over the age of 17 years when the proceeding in recorder’s court, which he now seeks to have quashed, was begun. The motion to quash was properly denied. The earlier proceeding which was started while the defendant was under 17 years of age, and which was quashed on defendant’s motion, has no bearing on the present case.
Counsel for the defendant argue that the jurisdiction of the juvenile division is determined by the date when the offense was committed, not by the date when the defendant is brought into a court of criminal jurisdiction charged with the offense. This question was answered by the Court in People v. Ross (1926), 235 Mich. 433, under the original probate court-juvenile division act (Act No. 6, Pub. Acts 1907 [Ex. Sess.], as amended). The effect of the pertinent provision of the law at that time was substantially the same as under the present statute, in so far as this question is concerned. See 3 Comp. Laws 1929, §§ 12834," 12835, 12839. In the Ross Case, supra, Mr. Justice Wiest wrote for the Court in the majority opinion, as follows (pp. 440, 442):
“Construction of the juvenile court act is aided by consideration of all of its provisions, and, when this is done, it clearly appears that it is the age of the child when charged in a criminal proceeding with a felony rather than his age at the time of the commission of a felony that is contemplated.
“The learned circuit judge accepted the act of 1923 as it reads, and held the language that, in any case where a child over the age of 15 years is charged with a felony, the judge of probate may waive jurisdiction, contemplates the age at the time of the charge in a court of criminal jurisdiction, and not the age at the time of committing the felony. The circuit judge was right.” >
As presently worded, section 2 of the act refers to any child under 17 “who has violated any # * law of the State;” section 3 provides for transfer to the juvenile division if “during the pendency of a criminal charge,” it shall he ascertained that the person is under 17 years of age; section 4 refers to any case where a child over 15 “is accused of any act the nature of which constitutes a felony.”
‘ ‘ One is not in law charged with a felony, within the meaning of this statute, until the charge is made in a court having criminal jurisdiction. * ■ * *
“A charge is the first step in the prosecution of a crime; it is an accusation in legal form, made in the course of procedure for the apprehension of an offender and his trial before a court of competent jurisdiction.” People v. Ross, supra, pp. 443, 444.
The defendant was over the age of 17 years when charged with, or accused of, a felony, in the recorder’s court, and the recorder’s court had jurisdiction without a waiver from, or transferring the case to, the juvenile division.
The order denying the motion to quash is affirmed and the case remanded.
Carr, C. J., and Btjtzel, Btjshnell, Sharpe, Reid, North, and Dethmers, JJ., concurred. | [
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North, J.
Bessie S. Kilpatrick is a sister of William H. Kilpatrick, deceased. His will, which 'was probated in the Wayne county probate court, contained a trust provision involving a substantial portion of his estate. This sister, claiming to be a beneficiary in her brother’s testamentary trust, filed a petition in the Wayne county probate court for a “final judicial settlement of trust estate.” The relief sought was denied, and on appeal to the circuit court a like result followed. Decision below in effect was that his sister had no beneficial interest in William H. Kilpatrick’s testamentary trust. She has appealed to this -Court.
The outcome of this litigation turns-on the construction to' be given to the William H. Kilpatrick will and, also, to the will of his widow by whom he was survived for approximately eight years. After máking certain specific bequests William H. Kilpatrick made the following provisions in his will.
“V. I give, devise and bequeath all of the rest, residue and remainder of my property and estate * * * to my wife, Eugean S. Kilpatrick, and Detroit Trust Company, a Michigan corporation of Detroit, Michigan, to take, have, hold and dispose of, under and in pursuance hereof, in trust, nevertheless, for the uses and purposes herein stated, and no.other, that is to say:
“1. The trustees shall pay to my wife, Eugean S. Kilpatrick, the entire net income from the trust property and estate in approximately equal monthly instalments during her entire lifetime; and in addition thereto the trustees shall assign, transfer, convey and pay over to her such part of the principal of the trust estate as she may from time to time request in writing. * *
“2. I give, devise and bequeath to my wife, Eugean S. Kilpatrick, the right and power to dispose of by her last will and testament, all of the rest, residue and remainder of the trust property and estate. A general residuary clause in her will shall not be deemed to be an exercise of said power of appointment, and my wife shall be deemed not to have exercised said power of appointment if 2 years shall elapse after the time of her death without the corporate trustee having actual knowledge that she has made a will which has been presented for probate to some court of competent jurisdiction and which purports to exercise said power of appointment.”
The next paragraph of William H. Kilpatrick’s will in substance provided that if Eugean S. Kilpatrick “shall not have legally disposed of ail of the rest, residue and remainder of the trust property and estate by her last will and testament” the' corporate trustee shall assign and transfer one-half “of all of’ the rest, residue and remainder of the’ trust property and estate to the heirs at law” of his wife who shall take “as though she had died intes tate, and all-of the rest, residue, and remainder of the trust property and estate to my (his) sister, Bessie S.- Kilpatrick.”
Subsequent to the probation of "William H. Kilpatrick’s will and approximately eight years, after ■his death Eugean S. Kilpatrick died testate. Her will was received for probate in the Wayne county probate court. -Following some preliminary provisions in her will Mrs. Kilpatrick provided for five special bequests from .her own estate; thereafter her will beginning with paragraph 5 contains the following:
“5. By the last will and testament of my husband, William H. Kilpatrick, dated January 29, 1932, the right and power was lodged with me to dispose by last will and testament of all of the rest, residue and remainder of. the trust property and estate as the same were constituted by said last will and testament of my husband. The within will constitutes the exercise of the power of appointment lodged with me by said last will and testament of my husband.
“6. I give and bequeath to Detroit Orthopedic Clinic, a Michigan corporation, for its general purposes, the sum of $5,000.
“7. I make the following cash bequests from the trust estate of my husband, upon the condition, in each instance, that the bequest shall be effective if and only if the legatees named shall survive me. ’ ’
Hnder the above paragraph the testatrix provided for six specific bequests totalling $6,400, the first of these being $5,000 to Bessie S. Kilpatrick. Thereafter the will proceeds as follows:
“8. All the rest, residue and remainder of the trust property and estate as to which I have the’ power of appointment under the last will of my husband, William H. Kilpatrick, I give, devise and bequeath in equal shares to such of my nieces, (naming 13 nieces) as shall survive me.”
In the next paragraph of her will Mrs. Kilpatrick disposed of “All of the rest, residue and remainder” of her own estate (as distinguished from the trust property) in equal shares to such of her 13 nieces named in paragraph 8 of her will as should survive the testatrix.
Determination of this litigation hinges on the sole question of whether or not the manner in which Mrs. Kilpatrick made a testamentary disposition of the property which at the time of her death constituted the corpus of the testamentary trust created by the will of William EL Kilpatrick was in compliance with the power granted her by his will. The specific claim of appellant is that Mrs. Kilpatrick did not exercise the power of appointment in compliance with her husband’s will wherein it provided: “A general residuary clause in her will shall not be deemed to be an exercise of said power of appointment,” but instead in attempting to exercise the power of appointment Mrs. Kilpatrick resorted to the use of a general residuary clause.
The court’s duty is to ascertain and render effective the intent and the purpose sought to be accomplished by William H. Kilpatrick when he included in his will the provision just above quoted. Our consideration of this case brings the conclusion that by that provision he sought to provide against a thoughtless .or inadequately considered final disposition of the portion of his estate to which the power of appointment applied. Or perchance the testator had been advised that there was some question as to whether it was legally possible to exercise such a power of appointment by a general residuary clause (See In re Proestler’s Will, 232 Iowa, 640 (5 N. W, [2d] 922); 3 Restatement of Law of Prop erty, p. 1913), and sought to avoid that hazard by including in his will the provision under consideration.
There can be no question from the record before us but that Mrs. Kilpatrick by the terms of her will sought to fully comply with the requirements of her husband’s will. In paragraph 5 of her will she ■spoke as follows: “The within will'constitutes the exercise of the power of appointment lodged with me by said last will and testament of my husband. ’ ’ She then proceeded in paragraph 6 of her will to give $5,000 to the Detroit Orthopedic Clinic; and continuing in paragraph ? she says: “I make the following cash bequests from the trust estate of my husband,” and then provided for six bequests varying in amounts to six designated beneficiaries. As to the balance of the property constituting the corpus of her husband’s testamentary trust the testatrix provided in paragraph 8 'of her will that it should go in equal shares to each of 13 beneficiaries whom she named and otherwise identified. In -the foregoing manner Mrs. Kilpatrick by definite and specific bequests disposed of all of the property to which the power of appointment in her husband’s will appertained. By the express terms of paragraph 8 of the will the testatrix rendered it quite impossible that there should be any undisposed of portion as a remainder of the trust estate to which a residuary clause would be applicable. She accomplished this by providing in that paragraph that the remainder of the trust property was given, devised and bequeathed in equal shares “to such of” the 13 named beneficiaries “as shall survive me.” Having done so, we think it would be a clear distortion of the fact to say that her disposition of the trust property was made by “A general residuary clause in her will;” notwithstanding in making the 13 bequests last above noted the testatrix referred to tbe property covered by such bequests as: “All of tbe rest, residue and remainder of the trust property and estate as to which I have the power of appointment.” ■
And it is somewhat worthy of note that in the succeeding’ parágraph of her will Mrs. Kilpatrick embodied a residuary clause by which she disposed of all the rest, residue and remainder of “my estate ; ’ ’ but this residuary clause* by its very terms excluded any portion of the trust property concerning which her husband’s will had given her a power of appointment.
We do not overlook the phase of the law stressed by appellant and typified by the following, which purportedly is a quotation from the appellant’s brief in Pitman v. Pitman, 314 Mass. 465, (50 N. E. [2d] 69), as reported in 150 A. L. R. 509, 511:
“The granting of a power by one person to another to dispose of the property of the first person either by will or by deed imposes a fiduciary position upon the-donee of the power. The power must be exercised ip^the utmost good faith, for the purpose created, and in the exact manner provided in the instrument creating the power.” (Citing numerous cases.)
But it is our conclusion that by the terms of her will Mrs. Kilpatrick literally carried out the intent and purpose and fully complied with the power of appointment contained in her husband’s will. The judgment entered in the court below is affirmed,' and the case will be remanded to the circuit court to be certified to the probate court for further proceedings. Costs to. appellees.
Carr, C. J., and Butzel, Bushnell, Sharpe, Boyles, Reid, and Dethmers, JJ., concurred. | [
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Bixtzel, J.
On petition of Elsie Howard, we issued a writ of habeas corpus to inquire into the cause of detention of her daughter, Evelyn Aslanian, in the Wayne County Training School, Northville, Michigan. By ancillary writ of certiorari we have the record of the proceedings in the probate court of Wayne county which resulted in the commitment of the girl as a feeble-minded person in 1941, when she was 14 years of age.
Petitioner alleges that her daughter was illegally committed to an institution without due process of law; that the application for admission as a feeble-minded person stated conclusions rather than facts; that the probate court failed to take proofs and in-* vestigate the facts prior to entering the order of commitment; that petitioner was not served with notice; that petitioner ’s daughter, Evelyn Aslanian, was not present at the hearing; that the father of the girl, Edward Aslanian,, who had signed the' application was not present at the hearing; and that the physicians’ certificates, dated November 13 and 15, 1940, Were refiled, and used at the hearing on April 3, 1941, without a re-examination of the girl.
The statute in effect at the time of the hearing, Act No. 151, § 11, Pub. Acts 1923, as amended by Act No. 283, Pub. Acts 1925 (2 Comp. Laws 1929, § 6888 [Stat. Ann. § 14.811]), required that the petition state the facts upon which the allegation of mental disease was based, that the interested parties be served with notice of hearing, that the court appoint two reputable physicians to examine the alleged mentally diseased person and file a report, that an inquest be instituted, proofs taken and a full investigation made of the facts, and that, except where it would be improper or unsafe, the alleged mentally diseased person should have the right to be present at the hearing.
The application for admission of Evelyn Aslanian as a feeble-minded person, states:
“Patient was examined by the Detroit board of education on 10-17-40 given an I 2.52. [I. Q. 52.?] She attended special grades. She is a sex delinquent. She is a behavior problem in the home. ’ ’
The return of the probate judge shows that the original petition was filed on October 31, 1940, by the girl’s father and apparently refiled on March 24, 1941. Petitioner states as her belief that her daughter was confined'do the Wayne County Detention Home on temporary order during this entire period, which, if true, was in direct contravention of the statutory prohibition against temporary detention in excess of 30 days except by special order of the court which was not had herein. The return of service indicates that the girl was served but that the mother could not be located. There is no showing that Evelyn Aslanian was present at the hearing on her commitment or that she was represented by counsel or a physician. Neither of the parents appeared at the hearing. The entire pro-eeeding in the probate court consisted of the following questions put by the judge to a social worker interested in the case: »,
“Q. The father signed this petition?
“A. Yes.
“Q. Is the mother married again?
“A. Yes.
“Q. She is 14 years old?
“A, Yes.,
“Q. She is feeble-minded?
“A. Tes.
“Q. She is a problem in the home?
“A. Yes, a very serious sex délinquent.
“Q. - And the father wants her committed to the Wayne County Training School?
. “A. Yes.
“Q. And the mother, has she said anything about it?
“A. The father has been given custody of her.
“Q.. Is the father able to pay?
“A. No.
“The Court: She is committed to the Wayne County Training School at public expense.”
The physicians’ certificates are couched in the most general terms. One of the physicians stated that the girl was handicapped by an unfortunate home environment; that sfye suffered from myopia which retarded her mental development; and that her mental age was much below her actual age of 14 years. The other physician'stated that she was cooperative, her orientation good, her sum total of knowledge fair, but that she lacked initiative in thought and could not “differentiate between the various divisions of arithmetic,” repeat numbers of over four digits or “form sentences of three given words.”
It is readily apparent from the foregoing that the probate court did not conduct a proper inquest, take sufficient proofs or make a full investigation of the facts, without which the -order- of commitment is a nullity. In re Davis, 277 Mich. 88. See, also, In re Miller, 303 Mich. 81; In re Clifford, 303 Mich. 84; In re Maffett, 304 Mich. 173. Moreover, there was no showing that Evelyn Aslanian was present at the hearing nor was there any indication that it would have been improper or unsafe for her to have been present which, without more, renders the order of commitment a nullity. In re Roberts, 310 Mich. 560. The prosecuting attorney agrees with petitioner that a proper inquest was not had and that there was not a sufficient showing that the alleged feeble-minded girl was present at the hearing. The attorney general also concedes that the proceeding’s were fatally defective. It thus becomes unnecessary to pass upon the sufficiency of the petition for admission, notice to the mother and the physicians’ certificates.
In view of the fact that the original proceedings were fatally defective, it is unnecessary to pass upon the subsequent proceedings wherein the mother sought to have her daughter declared a sane and mentally competent person. It would appear that at the time she was committed, the girl was not only feeble-minded and a sex delinquent, as charged in the petition, but that she was a behavior problem as disclosed by the record. In the subsequent proceeding after the commitment there is a showing by a letter from one in authority that the girl had infected a 16-year-old boy with a venereal disease, that she had had illicit and incestuous relations, and also, had undergone an abortion. There seems to be a disagreement among the doctors, however, as to whether she is feeble-minded at the present time or not. If necessary, proper proceedings may be brought at any time to safeguard both the girl and the public.
.The proceedings in the probate court were fatally defective. An order may be entered releasing Evelyn Aslanian, without prejudice to any further proceedings.
Carr, C. J., and Bushnell, Sharpe, Boyles, Reid, North, and Dethmers, JJ., concurred.
Subsequently amended by Act No. 299, Pub. Aets 1941; Act No. 250, Pub. Aets 1943 (Comp. Laws Supp. 1945, 8 6888, Stat. Ann. 1946 Cum. Supp. § 14.811). | [
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Butzel, J.
In June, 1934, two examiners of the .department of insurance reported to the commissioner of insurance for the State of Michigan that a partial examination of the books and records of the Lapeer 'Farmers’- Mutual Fire Insurance Association, hereinafter referred to as the association, revealed that the business of 'that company was being conducted improperly. They recommended a thorough reorganization. A similar report was made in June, 1935. On August 19; 1935, at a special meeting, the board of directors of the association passed a resolution directing the secretary to petition the commissioner of insurance to take charge of the affairs of the association. On September 6,1935, the attorney general upon'relation of the commissioner of insurance filed a bill of complaint in the circuit court for the county of Ingham, in chancery, to dissolve the association and place it in the hands of a receiver. On September 17, 1935, an order was entered appointing John C. Ketcham, commissioner of insurance, receiver of the association and directing him to collect the assets and liquidate -the association in accordance with statutory provisions (3-Comp. Laws 1929, §12263 et seq., as amended [Stat. Ann. 1943 Rev. §§ 24.40-24.48]) and under the direction and supervision of the court. A supplemental order was entered on September 30, 1935, appointing William G. Simpson deputy receiver of the association with similar instructions from the court. The supplemental order fixed the deputy receiver’s bond at $10,000.
In the 11% yearns since this receivership was instituted, litigation involving the association has been. before this Court eight times (Simpson v. Goodrich, 280 Mich. 351; In re Dissolution of Lapeer Farmers Mutual Fire Insurance Association (Claim of Crawford), 280 Mich. 363; In re Dissolution of Lapeer Farmers’ Mutual Fire Insurance Association (Claim of Rice), 295 Mich. 218; Attorney General, ex rel. Commissioner of Insurance, v. Lapeer Farmers Mutual Fire Ins. Ass’n (West’s Appeal re Assessment), 297 Mich. 174; Attorney General, ex rel. Commissioner of Insurance, v. Lapeer Farmers Mutual Fire Ins. Ass’n (Claim of Ivory), 297 Mich. 188; Attorney General, ex rel. Commissioner of Insurance, v. Lapeer Farmers Mutual Fire Ins. Ass’n (Appeal of Rice), 300 Mich. 320; Commissioner of Insurance v. Lapeer Circuit Judge, 302 Mich. 614; Emery v. Clark, 303 Mich. 461), not including’ an appeal from a contempt proceeding arising from liti gation concerning the association (In re Gilliland, 284 Mich. 604), and the instant case. The foregoing does not include the multitude of other'suits arising out of this receivership in various circuit courts in this State.
On December 23, 1935, the Ingham county circuit court, in chancery, entered an order authorizing the receiver to levy an assessment. An assessment was levied and in Simpson v. Goodrich, supra, this Court held it to be invalid because it was not made in accordance with the order of the circuit court. A second'assessment was held invalid by the circuit court. A third assessment was levied in July, 1940, and upheld by this Court in Attorney General, ex rel. Commissioner of Insurance, v. Lapeer Farmers Mutual Fire Ins. Ass’n (West’s Appeal re Assessment), supra.
In April, 1936, "William G. Simpson, the deputy receiver, filed a petition seeking the allowance of certain claims among which was that of William E. Ivory, the secretary-treasurer of the association from January, 1927, to June, 1935, in the amount of $5,095.13. An appeal was taken from the order allowing that claim and in Attorney General, ex rel. Commissioner of Insurance, v. Lapeer Farmers Mutual Fire Ins. Ass’n (Claim of Ivory), supra, this Court disallowed the claim on the ground that Ivory was largely responsible for the mismanagement of the affairs of the defunct insurance association. On August 19, 1938, deputy receiver Simpson began a suit against Ivory as an officer and director of the company and the Michigan Surety Company, the surety on his bond. On January 27, 1940, a judgment was entered for plaintiff Simpson in the sum of $1,950.38. On August 16,1941, the then commissioner of insurance and statutory receiver of the association, Eugene P, Berry, instituted suit against Edward Murphy and other officers and directors of the company alleging maladministration in office. The decree of the court, entered August 31, 1946, disallowed certain fees and compensation to the various officers and directors of the association.
The present commissioner of insurance, David A. Forbes, testified in the lower court in the instant case on April 19, 1946, that the total assessment roll, spread in 1940, amounted to $198,540.10; that the total amount collected "by the receiver was $99,399.92; that at the inception of the receivership there was due creditors a total of $90,115.37, in approved claims; and that during all this time the creditors had received only a 5 per cent, dividend which totaled $4,503.99. The commissioner further testified that there is currently due creditors a total amount of '$94,263.83, which is approximately $4,000 more than was due them in 1935, when the receivership was instituted. The present deputy receiver, Richard IV. Atwell, stated that uncollected assessments are in excess of $96,000, of which approximately $20,000 are in judgments, and that in his opinion not more that one-third of the uncollected assessments is collectible. He estimated the cash on hand as approximately $45. Costly litigation and other expenses of the receivership have consumed most of the funds realized from paid assessments. Appellants dispute the accuracy of many of the foregoing„ figures; but the record shows that-they are sufficiently accurate to indicate the background against which the creditors ’ plan which gave rise to the instant case was evolved.
After extended creditors’ conferences attended by the present commissioner of insurance, a plan was worked out whereby it'was hoped that the receivership might be brought to a long overdue termination •with something salvaged for the benefit of wearied creditors. The plan provided that members of the association who had not as yet paid their assessments would pay to a trustee their original assessment plus 50 per cent, thereof, and that the members who' had already paid their assessments would contribute an additional 50 per cent., and upon such payments being made, those members would be relieved of any further liability. The fund thus collected would then be turned over to a creditors ’ committee of three trustees. The statutory receiver would thereupon transfer all claims for all assessments not paid as provided for in this plan and all judgments to the three trustees of the creditors’ committee, and the creditors would accept the proceeds of the voluntary contributions plus recoveries upon such assessments and judgments in full settlement of their claims. Charles A. Stier was selected as trustee and the various members of the association were circularized with the result that approximately $35,000 has been voluntarily paid to the trustee. This voluntary fund is not an asset of the receivership but is in the nature of an incentive bonus that the creditors would receive in addition to their share of liquidated assets if and when the plan is carried out. The trial judge found that 52 creditors had agreed to the plan while eight had either neglected or refused to accept it. As shown by the record, a power of attorney, signed by 48 creditors, authorized Charles A Stier, Fred C. Ballard and Herbert ~W. Smith to represent creditors with full authority to receive the assets of defendant association from the receiver, to receipt for same in full settlement of their claims and to distribute said assets pro rata among the creditors. The commissioner of insurance stated that creditors’ claims totaled $94,263.83, of which the nonassenting creditors’ claims, according to appellants’ own calculations, represent a total of $12,211.67.
The testimony clearly indicates that this plan-would benefit all of the parties concerned and that a continuance of the receivership would be a loss rather than a gain to the creditors. Mr. Walter Foster, formerly attorney for the receiver, waived his preferred claim in the sum of $8,652.50, on condition that the plan be adopted. This in itself would be a substantial benefit to the other creditors.
On April 25,1946, David A. Forbes, the incumbent commissioner of insurance and receiver of defendant association,' petitioned the circuit court for the county of Ingham for authority to, transfer the assets of the association, consisting of unpaid assessments and judgments, to the trustees of the creditors’ committee in accordance with the aforementioned plan of liquidation. Of the more than 4,500 interested members and creditors, of the association, the answer and objection to the commissioner’s petition was signed by 134, of whom 5 are indicated as creditors.
In granting the prayer of the petition, Judge Eger observed:
“It is apparent that little can be' accomplished by continuing the receivership. The smallness 'of the individual assessments, the large amount of litigation, the several appeals to the Supreme Court, the general antagonism of many of the members, and other factors have made its handling an expensive .process, with little reward to creditors. Unless this plan is put into operation they will receive nothing. If this proposal had come up some years ago it would necessarily have been denied, but in view of the history of this receivership I feel that it represents the only salvation, and that only partly, for those who have suffered losses.”
A decree was entered on May 6, 1946, authorizing the commissioner and receiver to transfer, the assets of the association to the creditors trustees and ordering the latter to give receipt in full satisfaction of liability to the receiver, and to the member policy holders who have paid their assessments; the decree provides that upon the failure of the trustees or the nonassenting creditors to give releases and discharges, the decree' shall constitute such. The proposed trustees are ordéred to give individual bonds in the amount of $5,000, running to the commissioner of insurance for the protection of the creditors and members of the association. The court retains jurisdiction over the trustees as to any matters which may require further adjudication; and the decree directs that a,written report of their activities be filed with the .court semiannually, with a copy to the commissioner of insurance. The .decree also provides that any nonassenting creditor or any member of the association who has paid his assessment in full may, within 90 days from the date of, the decree and not afterwards, institute at his own expense on behalf of himself or himself and others of his own class ah action or actions against any former commissioner of insurance, ás receiver, and their deputies in charge, excepting therefrom the present receiver and the present deputy, with the proviso that any such action or actions shall be without cost or liability on the part of the present receiver, his deputy or the trustees. The decree further orders that upon transfer of the assets of the association by the receiver to the creditors’ trustees and upon the filing of the receiver’s final account and receipts, the receiver, David A. Forbes, and his deputy, Eichard Atwell, be automatically discharged as receiver and deputy receiver, respectively, and that the respondent association be dissolved and its charter terminated and forfeited without further order of the court. Appellants, who are nonassenting creditors and objecting members of the association, appeal from the decree. The contentions' of the appellants are discussed seriatim:
!.■ Appellants claim that rights of action exist against the various receivers and deputy receivers of the association which constitute assets of the receivership. They particularly allege that the receivers and deputy receivers are liable for permitting causes of action to outlaw in failing to proceed promptly against the officers and directors of the association. Although belatedly brought, the question of the liability of the officers and directors of the insolvent association was litigated in Berry v. Murphy, Lapeer Circuit Court Chancery No. 4972, in which the court disallowed certain fees and compensation claimed by the various officers and directors. In his opinion in that case, Judge Dehnke stated:
‘1 The history of the defunct insurance association and of the receivership is set out in large part in the opinions filed in this and other circuit courts, and in the Supreme Court, in cases growing out of the receivership. These all indicate, in line with the testimony in this case, .that, while it is true that the officers and directors did not measure up to their responsibilities, the deeper and more fundamental cause of the decline and final collapse of the .structure was the failure of the membership to appreciate the necessity and importance of selecting for these positions of responsibility men qualified by training and experience to operate an insurance company efficiently and successfully. Secretary-treasurer Ivory lacked this experience and training’, and told the membership so when his selection was proposed. (Note opinion in Simpson v. Ivory, Chancery case, Lapeer county). He was elected, nevertheless, again and again, by the members (not the directors), in annual meeting. The same lack of good judgment was exhibited in the election of most of the directors. The test was not ability and qualification, but general reputation and personal acquaintance, and back of it was the notion that to pay the salaries necessary to obtain qualified management would be a waste of money. This, I should say, was the mortal cancer which had been gnawing at the vitals of the organization, and had become incurable long before September, 1935.”
Thus it would appear highly problematical that a judgment greater than that realized could have been had even if the action had been brought more promptly. Appellants object to any consideration of Berry v. Murphy, supra, on the ground that it is outside the record, notwithstanding that their own exhibits, Nos. 33 and 34 included in the record, are the bill of complaint and the calendar entries, respectively, in that case. Looking at the entire record de novo, and considering the many cases involving this association previously decided in this Court, we might reach the same conclusion arrived at. by Judge Dehnke were the exact question before us. Appellants raise many questions, but the cases cited by them refer to the outlawing of liquidated not unliquidated claims. Query, whether an insurance commissioner acting in his capacity as statutory receiver of this defunct insurance association is liable for a possible mistake of judgment in not having gone to the expense of bringing suit against officers and director's of the insolvent company when it appeared that chances or recovery were most remote? The entire question, however, is academic in view of the fact that the decree of the lower court preserves the right of nonassenting creditors and dissatisfied members of the association who have paid their assessments in full, to proceed against all of the receivers and deputy receivers, excepting only the incumbents, at their own expense. There is no deprivation of valuable rights. If the non-assenting creditors and dissatisfied members regard seriously the alleged causes of action against former receivers and deputy receivers, they are free to pursue their remedy within the prescribed period. of time. The 90-day period shall begin with the entry of the final decree in this Court, and the recovery, if any, shall be for the benefit of all creditors, or in the remotest contingency, after their payment in full, for the benefit of all members of the association. In connection therewith, the trial court observed that the possibility of any member receiving any reimbursement for assessments paid seemed most remote.
2. Appellants contend that the nonassenting creditors cannot be compelled to submit to the sale of the assets of the receivership, as provided for in the decree, and urge that there must be a public offering for sale of such assets after due and proper notice. In support of this contention they cite Court Rule No. 53 (1945), section 1 of which provides that a receiver, appointed in a suit upon a creditor’s bill, may sell desperate debts, and all other doubtful claims to personal property, at public auction, giving at least 10 days’ notice of the time and place of such sale. It will be noted, however, that the above court rule applies to a receiver in a suit upon a creditor’s bill and is not.made applicable to the receiver of an insurance company whose rights and duties are defined by statute. 3 Comp. Laws 1929, § 12269 (Stat. Ann. 1943 Rev. §24.46) provides:
“The commissioner of insurance or his deputy or special deputy, acting under the provisions of this chapter , in any liquidation proceedings, shall have all the powers of a receiver in insolvency proceedings, and may do and perform any act for the protection of the assets or the recovery of the same, and for the settlement or discharge of the obligations of the insurance company, that may be necessary or that may he directed hy the court"
We are of the opinion that the powers granted the commissioner coupled with the broad discretionary powers of the court are sufficient to embrace the sale of assets provided for in the decree of the ■lower court. To insure the highest return possible, however, and to allay appellants’ fears, this being a court of equity, we ,do order that the decree be so modified as to provide that after the trustees shall have received from the commissioner of insurance an assignment of the assets of the receivership, the trustees, upon proper showing and at such time as may be determined by the trial judge.and pursuant to published notice of the date and place, shall proceed to a public sale of all such assets; that whatever moneys shall be realized from such sale above the cost thereof shall be disbursed to the creditors of the association in like proportions as the so-called voluntary fund, with the further provision that should such sale produce a sum more than sufficient to pay all of the claims of creditors,. the surplus shall be distributed pro rata among those members of the association who have paid their assessments in full. The decree shall also provide that the trustees shall pay a first dividend of at least 90 per cent, of all moneys paid in to them within 60' days after the entry of the final decree in-the instant case, in this Court which decree shall also1 remand the ease to the trial court for such further action as may be necessary.
3. Appellants contend that the proposed creditors’ trustees are not proper persons to handle the money of nonassenting creditors. This contention is based on the alleged hostility of one of the trustees toward appellants and the conduct- of another of the trustees in an entirely different matter and in no way justifying the characterization of him by appellants. The trial judge stated in his opinion that no objection of any kind was made to the persons selected as trustees. And in view of the fact that all three have been ordered to give individual bonds in the amount of $5,000, with the court retaining jurisdiction over their activities, we are not persuaded that there is a basis for disqualifying any of the proposed creditors’ trustees.
4. Appellants contend that the decree does not legally and equitably protect all parties. They claim that inasmuch as the agreement and declaration of trust provides that if the moneys collected in the aggregate shall be unacceptable to all the creditors as full payment of their claims, then each member shall have returned to him the amount he has contributed. While the agreement calls for consent on the part of all creditors, a result seldom obtainable, the vast majority have subscribed to it and have shown no disposition to withdraw. We hold that unless a very large number indicate their desire to withdraw at once, the agreement shall be binding upon those members who have paid the full 150 per cent, of their original assessment. A cancellation of the agreement shall be without prejudice to the presentation of an application to the trial court for an order following in the main the provisions of this same agreement. The situation presented herein differs entirely from that in Detroit Trust Co. v. Stormfeltz-Loveley Co., 257 Mich. 655 (88 A. L. R. 1263), where we held that a court could not deprive a dissenting bondholder of his full rights under a mortgage contract. Here, we are dealing solely with a debtor-creditor relationship which the insurance commissioner and a court of equity are fully protecting. After 11% years of costly and litigious experience, the court of equity approved of the only feasible and practical method to salvage something for the creditors. None of the directors have offered any plan by sale or otherwise that would realize as much for the creditors as the consummation of the present plan will.
Appellants also object that the decree does not order the trustees to distribute the assets of the receivership to the creditors. Such distribution is implicit in any plan of liquidation and is adequately safeguarded herein by reason of the court’s retention of jurisdiction and supervision over the activities of the creditors’ trustees. Appellants further contend that the decree fails to protect them properly in that the bonds of the trustees run to the commissioner of insurance who by the very terms of the decree is to be discharged and released once he turns over the assets of the receivership to the creditors’ trustees. This contention fails to consider the fact that the commissioner of insurance, who is an officer of the State with certain prescribed statutory duties in the premises, is the logical per-' son to protect the interests of all parties concerned herein, and was thus properly designated by the court.
5. Appellants claim that the decree permits the release and discharge of the receiver without his filing a final account and without giving all interested parties due notice thereof and a right to be heard thereon. "We note that the decree provides as follows:
“It is further ordered, adjudged and decreed that upon the transfer of .the said assets by David A. Forbes, as receiver, to the creditors’ trustees,' and upon the filing of the receiver’s final account and receipts, the petitioner, David A. Forbes and his deputy, Richard Atwell, be automatically discharged as receiver and deputy receiver-respectively.”
This is interpreted as requiring the receiver, as a condition precedent to his discharge, to file a final account which shall be acceptable to the court. Such an account would be acceptable to the court only after proper notice to interested parties who shall have an opportunity to be heard thereon.
6. Appellants contend that the decree permits persons other than the commissioner of insurance and his deputy to act as liquidators of the association contrary to statutory provision. They cite 6 Comp. Laws 1929, § 12266 (Stat. Ann. 1943 Rev. § 24.43) which provides:
‘ ‘ Such liquidation shall be made by and under the direction of the commissioner of insurance who may deal with the property and business of such corporation in his own name as commissioner or in the name of the corporation, as the court may direct, and shall be vested by operation of law with title to all the property, contracts and rights of action of such corporation as of the date of the order so directing him to liquidate.”
It must be recognized that the purpose of the statute is to provide' for efficient liquidation wdth the least possible delay. In the instant case such liquidation is effected when the receiver transfers the assets to the trustees for the.benefit of creditors in consideration of the discharge of their claims. Cf. Gockstetter v. Williams (C. C. A.), 9 Fed. (2d) 354, wherein it was held that the receiver of an insolvent national bank might sell' collectible debts, rather than make actual collection and that such sale was not invalid on the theory that the receiver was thus being relieved of statutory duties.
7. Appellants claim that the decree deprives them of their rights and property without due process of law and equal protection of the law, and impairs their contract rights, contrary to and in violation of the Constitutions of the United States and the State of Michigan. The contention is made that the decree impairs the contract existing’ between appellants and the association by attempting to substitute creditors’ trustees for the official liquidator of insurance companies designated by statute. It has already been demonstrated, however, that this particular plan of liquidation does not constitute an abandonment of statutory duties on the part of the commissioner of insurance but rather is within their general purport. It has also been shown that the discharge of the receiver is contingent upon his filing a final account on which a hearing shall be had after due notice to interested parties.
8. Finally, appellants have filed a motion to remand, claiming that the trial court was disqualified to hear and determine the matters involved in the instant case. They allege that Judge Eger, who heard the case in the lower court, was formerly a member of the law firm which served as general counsel for George D. MaDan, a judgment creditor of the association, and was, therefore, biased and prejudiced in this litigation. The mere fact that the MaDan claim is in the amount of $198.70, as compared with total creditors’ claims in excess of $94,000, and has already been reduced to judgment, indicates that the motion to remand is entirely without merit.
In view of the fact that this receivership is over 11% years old, the further fact that unless this plan is adopted it is highly improbable that anything will be realized for the creditors, and in the last analysis, that a court of equity has a plain duty in the prem ises when confronted with the peculiar facts in this case, we affirm the decree of the trial court as herein modified. Neither of the parties having fully prevailed, no costs will he allowed.
Bushnell, Sharpe, Reid, and North, JJ., concurred. Carr, C. J., and Boyles and Dethmers, JJ., did not sit. | [
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Bttshnell, J.
This appeal, in the nature of certiorari, from the department of labor and industry raises questions of whether defendant Lake Superior Lumber Corporation filed a proper report and whether plaintiff Earl .0. Thompson’s claim was seasonably made.
When Thompson entered the employ of defendant in 1939, his eyesight .was normal. On January 24, 1940, while trimming the butt of a tie, a piece of wood about 2 inches long caught on the saw and struck plaintiff’s left eye. This injury was immediately reported to the defendant’s personnel manager, Francis O. Pidgeon. Thompson was treated by the defendant’s physician, Dr. McHugh, since deceased, who told him that his optic nerve was bruised but that his vision would clear up. Plaintiff only lost one day’s work, and defendant reported the matter as a noncompensable accident.-
Thompson claims that in May of 1940 he spoke to Pidgeon about his injury and was told that he would be taken to Ironwood sometime, presumably for the purpose of having his eye examined by a specialist. According to Thompson, nothing was done about the matter and he continued at his regular work. Pidgeon testified that he did not recall any claim for compensation having been made by Thompson in' 1940. Thompson was cross-examined by the deputy commissioner and testified as follows:
“Q. .Now, in talking with Mr. Pidgeon in the spring of 1940, that yas asking for medical aid — you wanted your eye examined?
“A. Yes.
“Q. Tell us what you said to him about compensation?
“A. I asked him if I wasn’t entitled to some sort of compensation if my eye didn’t clear up.
“Q. At that time you didn’t know what condition your eye was in?
“A. I really didn’t know what condition my eye was in. I was under the impression from what Doctor McHugh told me that it was going to clear up.
“Q. Then between that conversation of May, 1940,, and the fall of 1943, do you know how many more times you talked to Mr. Pidgeon?
“A. Possibly two times and there was at least two different conversations.
“Q. But you, of your own accord, never went to any doctor even though you noticed that blurring of the eye, you never went to any doctor.
“A. No.
“Q. Were you able to do your work all right?
“A. I have done my work all right.”
Sometime in the fall of 1943 Thompson got some dirt and'sawdust in his right eye and noticed he could not see with his left eye when his right was closed. On November 30,1944, when some foreign substance was removed from his right eye by Dr. William P. Strong, a physician for the lumber company, it was discovered that Thompson had no industrial vision in his left eye. He was then taken by Pidgeon to Dr. Lieberthal at Ironwood, and later sent to Dr. Hendrickson, who attributed the loss of vision to a “retinal detachment,” which he said could be due to an injury. Thompson was later examined by several doctors of his own selection, including specialists at the University of Michigan hospital. Subsequent conversations between Thompson and of ficers of the defendant lumber company resulted in their .denial of liability and his institution of the instant proceedings. Defendant based its denial of liability on the grounds that plaintiff’s injury did not result from the accident of January 24, 1940, and, in any event, no claim for compensation was made by Thompson within the statutory period.
The department held that Thompson’s injury was the result of the 1940 accident and that his claim for compensation had been seasonably made. Compensation of $12.92 per week, being two-thirds of his weekly wage of $19.38, was granted for the specific period of 150 weeks from November 30, 1944.
There is evidence to support the finding of the department that Thompson made his claim for compensation in May of 1940. Defendant lumber .company had notice of the injury within three months after it happened, and there is testimony upon which the department based its findings that Thompson’s oral claim was made to Pidgeon within six months after the occurrence of the injury. Thus the requirements of 2 Comp. Laws 1929, § 8431 (Stat. Ann. § 17.165), were satisfied.
Defendant contends that Thompson’s loss of vision occurred in the fall of 1943. The department held, however, that the loss occurred on November 30, 1944.- This was the date of the last injury to Thompson’s right eye, for which he was afterwards treated by Dr. Strong.
An award based upon competent, testimony must be affirmed on review by certiorari. Cornish v. Jackson & Tindle, Inc., 285 Mich. 566, cited by appellants as controlling, is distinguishable, for the reason that the award in that case was reversed because the department’s finding was totally unsupported by the evidence.
When Dr. Strong told Pidgeon in December of 1944 that Thompson had no vision in his left eye, the requirements of 2 Comp. Laws 1929, § 8456 (Stat. Ann. §17.191), as amended by Act No. 245,.Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8456, Stat. Ann. 1946 Cum. Supp. §17.191), became applicable. This section reads:
“Every employer who is subject to the workmen’s compensation act shall keep a record of all injuries causing death or disability of any employee arising out of and in the course of the employment, which record shall give the name, address, age, wages of the deceased or disabled employee, the time and cause of the accident, the nature and extent of the injury and disability, and such other information as the compensation commission may reasonably require by general order. Reports based upon this record shall be furnished to such commission at. such times and in such manner as it may reasonably require by general order upon forms to be procured from such commission.”
In accordance with this section, as amended, the commission adopted the following rule:
“Employers subject to the workmen’s compensation act must report to the commission on form 100 within 8- days after occurrence:
“1. Compensable injuries.
“2. Occupational diseases.
“3. Specific losses.
“4. Lost time injuries of one day more than the day or shift on which injury occurred.”
Although defendant lumber company properly reported the 1940 injury on a noncomp ensable form, it was nevertheless required in 1944 to report Thompson’s loss of vision after the accident on Novemner 30, 1944, when its employment personnel manager was informed by the company’s doctor of this specific loss.
The award is affirmed, with costs to appellee..
Carr, C. J., and Butzel, Sharpe, Boyles, Beid, North, and Dethmers, JJ., concurred.
Administrative Code 1944, p, 349.—Beporeer, | [
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Reid, J.
This is an action at law brought by the plaintiff as administrator of the estate of G-rzgorz Kurys, deceased, against the defendant, the widow of the deceased, to recover the sum of $5,350 claimed by the plaintiff to have been the money of the deceased. Defendant claims that she was- a joint owner with her husband of the money, which was contained in a metal box in the residence of defendant and her'husband, and that she became the sole owner of the money by survivorship. The jury’s verdict was in favor of the plaintiff and from the judgment thereon defendant appeals.
Defendant and deceased were married in August, 1934, and lived together in Flint, Michigan, as husband and wife, until his sudden death, December 17, 1941. Deceased had adopted Walter Kurys several years prior to his marriage to the defendant so that the adopted son, Walter, and defendant are the only heirs-at-law of deceased. Defendant had a son by a prior marriage and owned some rentable property which became hers on the death of her former husband. Deceased during his last 20 years was an employee of the Buick Motor Company in Flint.
Defendant was put on the witness stand by plaintiff for general cross-examination and to show the amount, $5,350, that was in the metal box at deceased’s death, which amount plaintiff was apparently unable to prove in any other way. Under such circumstances, defendant’s testimony was for consideration by the jury even as to matters equally within the knowledge of deceased. See In re Estate of Dunlap, 94 Mich. 11; Kwiecinski v. Newman’s Estate, 137 Mich. 287; Geisel v. Burg, 283 Mich. 73. See, also, 64 A. L. R. 1148 and 107 A. L. R. 482; also, 3 Comp. Laws 1929, §14219 (Stat. Ann. §27.914).
Defendant testified that at the time of her marriage to deceased she had $190 and deceased had $700, that the two sums of money were placed together in the metal box in question, and that deceased said, “We have for starting,” and that the $890, along with moneys later deposited in the box, was owned by- defendant and the deceased jointly. Deceased was fearful of the safety of putting his money in the bank. The metal box in question was used as the family purse, and the expenses of the household, including taxes and the purchase of a new refrigerator and a gas range, were provided for by money taken from the box in question. Defendant further testified that when she needed money for the family living expenses she went to the box to obtain it.
Defendant further testified her husband gave her a key to the box in 1935, but the testimony of the witness Cutler would establish that the key had been stamped by him in 1939 or later and therefore of course it could not have been given by deceased to defendant before that time. This discrepancy is relied on by plaintiff, who claims that the testimony of defendant having been shown to be incorrect in a material particular, the jury were justified in rejecting her testimony entirely, including her testimony that deceased constituted himself and defendant the joint owners of the money in the metal box, with right of ownership in the suryivor. We find no error in the manner in which this disputed question of fact was submitted to the jury.
After'the case had been submitted to the jury the following occurred:'
“The Court: Members of the jury; Have you agreed upon a verdict, and if so, who will speak?
“The Foreman: We.have.
“The Court: You have agreed upon a verdict?
“The Foreman: Yes.
“The Clerk: For whom do you find?
“The Foreman: ‘We have decided to turn over the contents of the box to the administrator except $1,000 to Mrs. Kurys.’
“The Court: Well, now, that is not it. You have to find the amount. Dó you know what was in the box? Now, that is what you have to find, a certain amount.
“A Juror: Well, that is one thing that bothered us. We don’t know how much was in the box.
. “Another Juror: Do we take the amount that was given in the testimony?
“The Court: If you believe the testimony in this case. As I instructed you, if there was no testimony your verdict would be that of no cause for action. It is not for the defendant to prove the property belongs to her. It is for the plaintiff to prove by a preponderance of the evidence the amount of money that belonged to the estate that was in that box. The burden of proof is on the plaintiff, not on the defendant. Now, you return to your jury room, and if you can determine from the testimony in the case that they have proved the amount of money that was in the box, it is for you to find whether the plaintiff has proved by a preponderance of the evidence they are entitled to a certain amount, then you come in and return your verdict, as to whether on the first count or second count, and if on the second count it is double the amount. On the first count it is just for the amount. Just return and see if you can figure out what the judgment is.”
The verdict thus announced by the jury was well well within the limits of the testimony and therefore was proper for the jury to render as to sub-’ stance, but, of course, was incorrect as to form.
■ The testimony was all one way, that the amount of money in the metal box at deceased’s death was $5,350. The court’s question asked by him of the jury as to whether they knew what was in the metal bo.x might well arouse uncalled for speculation as to the amount. It was the duty of the court, since the amount was not in dispute, to have indicated to the jury that they could deduct from the amount of money shown by undisputed testimony to be in the metal box, the amount that the jury had announced that they had found was defendant’s money, $1,000, and in consequence the verdict would be for the plaintiff for the remainder, $4,350.
The jury again retired to the jury room and after further deliberation, returned a verdict for the plaintiff for the full amount of money that was in the metal box at deceased’s death, $5,350, without deducting the $1,000 which the jury had theretofore found was the property of defendant. Defendant’s testimony uncontradicted had furnished an ample basis for a finding that defendant had deposited much more than $1,000 of her money in the metal box.
The court’s statement, “Well, now, that is not it,” was erroneous. While that statement was correct as to the form of the verdict, it was incorrect as to the- substance, and was evidently construed by the jury as a statement by the court that their verdict was incorrect in substance as well as form, hence the substantially different verdict which was later rendered.
For this error the judgment is reversed. In view of our ruling, other claimed errors become unimportant. The cause is remanded to the trial court with instruction to set aside the verdict and grant a new trial; costs to await the result.
Carr, C. J., and Butzel, Bushnell, Sharpe, Boyles, North, and Dethmers, JJ., concurred.
See 3 Comp. Laws 1929, §14220 (Stat. Ann. § 37.915). — Be-PORTER. ,
Act No. 288, chap. 2, § 55, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-2[55], Stat. Ann. 1943 Rev. § 27.3178[125]). | [
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Butzel, J.
George F. Hilborn, referred to herein as the decedent, lived with his invalid wife Ernmla in a house owned by him in Carrollton, Michigan. He also owned three vacant lots a half block distant from his home. Decedent was over 80 years old and suffered from palsy; nevertheless, he was able to get about and required only a very limited amount of care. His invalid wife, however, was in need of considerable assistance which he was unable to give her because of his advanced years. In July, 1938, 'defendant George Hilborn, a nephew of decedent, and wife were persuaded to make their home with the elderly couple and to care for them for the balance of their lives; and in return therefor, decedent deeded his house and .three lots to Mr. and Mrs. George Hilborn. This arrangement lasted until the latter couple separated seven months later as the result of their own domestic, difficulties, at which time they reconveyed the property to the decedent. Shortly thereafter, plaintiffs herein, George Sunday and Mary, his wife, who was the daughter of Emma Hilborn by a previous marriage, went to live with the old couple. Plaintiffs allege in their bill of complaint that decedent promised them that if upon their marriage they would come and live with him and support him and his wife, that on his death he would leave them all of the property, of which he died seized, in payment for his care and maintenance. Most of the furnishings in the home were owned by the old couple. -They each received a small old age pension allowance monthly, but otherwise they had no income.
In August, 1942, Emma Hilborn died. Decedent continued living- with plaintiffs until October of that year when he left for Kendall, Michigan, to make his home with his sister,' Ida Leyerse, defendant herein. On November 27, 1942, decedent sold his house in Carrollton to the Bishop of the Catholic Church for $1,600, taking $800 in cash and a note for the same amount made payable to defendant Leverse. On that same day he gave a quitclaim deed of the three lots to defendant George Hilborn. When decedent sold the house he stated that he was leaving the household furnishings to plaintiffs. The latter claim that ’ the furnishings are worth only $100. Defendants' state that they are worth four or five times that amount, George F. Hilborn died on February 21, 1943, at the age of 85. Plaintiffs continued to live in the house and paid rent to the Bishop whose title they concede.
The testimony is conflicting as to whether plaintiffs properly maintained and supported decedent. There is proof that decedent was dissatisfied with the treatment he received from plaintiffs; that he complained that he frequently had to cook his own meals; and that he sometimes visited neighbors to get something to eat. Also, there was testimony to the effect that the house was anything but peaceful and quiet. It is not clear whether plaintiffs claim that decedent promised to will the disputed property to them or not. They allege, however, that decedent fraudulently disposed of the property during his lifetime and that defendants are equally guilty of fraud. They claim that they are entitled to recover the note in the hands of defendant Leverse, the payments made thereon, and the three lots deeded to defendant Hilborn.
Plaintiff Mary Sunday testified that she had filed a petition for the probate of decedent’s estate, but had failed to take any further steps after learning that the vacant lots had been deeded to defendant. Hilborn. Conceivably,- this might indicate that plaintiffs regarded their claim as a debt due from the estate. The strongest testimony in support of plaintiffs’ claims is that of George Ingram, a brother of Mrs. Sunday, who stated that he had heard decedent tell plaintiffs prior to their marriage that he wanted them to get married and to come and make their home with decedent and his wife and that “when we pass away this property all belongs to you.” When asked what property the decedent referred to, the witness stated: “All the property he had there was-the understanding I had of it.” Decedent’s statement did not specifically include the three lots; and the fact that the statement was made in his home might indicate that he had in mind only the house and its furnishings. Another witness stated that she had heard decedent tell plaintiffs that “they were to get a square.deal for taking care of him and the property would be theirs, the house where they were living at that time.” We are not persuaded that plaintiffs have sustained the burden of proving that decedent promised to leave them the three lots.
It cannot/be contended that there was anything very unusual in plaintiffs’ support of Emma Hilborn, who was Mrs. Sunday’s mother. Nor was it unnatural for decedent to have given the note to his sister, Ida Leverse, with whom he spent his last months. By the same token, he may have felt obligated to his nephew, George Hilborn, who had cared for him and his wife in 1938 and who was a frequent visitor thereafter. We regret that the opinion of the trial judge was not included in the record, in the absence of which we can only draw inferences of fact from the decree dismissing the bill of complaint. The record, however, does not convince us that the judge was in error. The judge had the opportunity of seeing and heading the witnesses and of judging their credibility. Plaintiffs seek to have the transfers made by the decedent set aside and an order entered requiring defendants to turn over the disputed property to them. The alleged oral agreement and the fulfillment thereof by plaintiffs have not been proved by clear and convincing evidence, as the result of- which plaintiffs are not entitled to the relief they seek herein. Vandercook v. Kurtz, 297 Mich. 87; Kerns v. Kerns, 303 Mich. 23. This does not preclude plaintiffs from pursuing any other method, if there is any, to collect any sums they claim are due them.
The decree dismissing the bill is affirmed, without costs, defendants not having filed a brief.
Care, C. J., and Bttshnell, Sharp®, Boyles, Reid, North, and Dethmers, JJ., concurred. | [
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North, J.
Leave having been granted, this. appeal was brought by the people (see 3 Comp. Laws 1929, § 17366, as amended by Act No. 132, Pub. Acts 1941 [Comp. Laws Supp. 1945, §17366, Stat. Ann. 1946 Cum. Supp. §28.1109]) from certain rulings and orders made by Honorable Chester P. O’Hara while sitting as an examining magistrate in a preliminary examination wherein the defendants herein were charged with the criminal offense of common-law conspiracy to wilfully, wrongfully and unlawfully obstruct the due course of legislation, and to wilfully and corruptly affect and influence the action of the Michigan legislature. The rulings and orders from which the appeal was taken are more specifically hereinafter set forth.
While not literally accurate in all details, the factual background of the instant appeal may be stated as follows: In July, 1946, a so-called one-man grand jury investigation was being conducted by one of the Ingham county circuit judges. Charles F. Hemans, appellee herein, as a witness in the grand-jury proceeding's declined to answer certain questions propounded to him on the ground that answers thereto might tend to incriminate him. Thereupon the circuit judge acting as a grand juror granted Hemans immunity from prosecution as to any offense concerning which his answers might tend to incriminate" him.' (3 Comp. Laws 1929, § 17220 [Stat. Ann. § 28.946]). The immunity having been granted, Hemans thereupon answered the questions propounded to him. Subsequently the one-man grand juror issued a warrant for the arrest of the defendants herein charging them with the offense above noted. "While Hemans was named as a co-conspirator he was not made a defendant. Thereafter Hemans departed from the State of Michigan and ultimately arrived in Washington, D. C. He refused to return to Michigan to testify as a witness in the preliminary examination in the case against these defendants. In September, 1946, Hemans was indicted by a Federal grand jury for allegedly leaving the State of Michigan and traveling in interstate commerce with the intent to avoid giving testimony in the cause pending against these defendants. See 18 USCA, 1946 Cum. Supp. § 408e. He was taken into custody* brought to the State of Michigan, and produced as a witness at an adjourned hearing of the preliminary examination of' the defendants herein. In the course of Hemans’ examination as a witness he was asked certain questions which he refused to answer, asserting that answers thereto might tend to incriminate him in the above-noted prosecution against him then pending in the Federal court for the eastern district of Michigan, southern division. The circuit judge presiding at the preliminary examination of the - defendants herein sustained the position taken by Hemans and declined to require him to answer. The examination was adjourned, and the original appeal allowed herein was from the above ruling of the circuit judge. In brief the ruling was made on the ground that the answers sought from witness Hemans might tend to incriminate him in the then pending Federal prosecution; and that immunity granted by a State court would not afford protection to Hemans in the Federal case.
Hemans, who did not testify in his own" defense, was subsequently convicted in the Federal prosecution. Thereafter a motion was made by the people before the examining magistrate that he set aside the former order whereby Hemans’ assertion of his constitutional rights against self-incrimination had been sustained. In support of the motion it was urged among other things that since the Federal prosecution had been concluded by a verdict of guilty, Hemans was no longer in a position to decline to testify at the examination on the ground that his testimony might be self-incriminating; that since Hemans had failed to testify in the Federal case or to assert that his testimony was an essential element or ingredient to the prosecution of that case, he was no longer in position to assert such a contention in the instant case; and that by reason of the conviction in the Federal case “the danger of self-incrimination therein by answers to questions propounded in this case would be remote, fanciful, speculative, and not reasonably to be expected to arise out of the ordinary course of the law.” In effect the same ruling was made as at the earlier hearing in the examination; and the people by supplemental proceedings have embodied in this appeal this later ruling denying the motion to set aside the former ruling. Incident to making this later ruling, the examining magistrate made the following statenient, with which we are in accord:
“I do not believe that the verdict of guilty concludes that case in the Federal court, nor does it render the danger of self-incrimination remote or fanciful or speculative, as alleged in this motion; and that does not become true, in my judgment, until such time as the time for appeal passes and the person convicted commences to serve the sentence imposed upon him without further right of appeal except by a special leave of the court, because, in my judgment, * * * if the case should for any reason be reversed and sent back for a new trial, the danger of self-incrimination again arises.”
As appears from Hemans v. United States, decided by the United States Circuit Court of Appeals for the 6th district, July 28,1947,163 Fed. (2d) 228, Hemans’ conviction in the United States district court was appealed and affirmed. We have been advised by the clerk of the United States Supreme Court that an application to that court for certiorari has been made in behalf of Hemans, which as yet has neither been granted nor denied. Hence final determination of the Federal prosecution of Hemans has not yet been accomplished. Decision of the instant case has been withheld because of the pending Federal prosecution, but we are of the opinion that orderly procedure forbids further delay.
As above noted, the circuit judge sitting as an examining magistrate sustained Hemans in his refusal to answer certain questions propounded to him on the ground of his constitutional right against sélf-incrimination (Michigan Const. 1908, art. 2, §16), notwithstanding Hemans, as a witness in a one-man grand-júry proceedings, had been granted immunity from prosecution in the State courts for any offense concerning which his testimony, relating to the same subject matter, might tend to in-_ criminate him. See code of criminal procedure. 3 Comp. Laws 1929, §17220 (Stat. Ann. § 28.946). In challenging the above ruling appellant presents the questions hereinafter reviewed.
For the purpose of decision herein it .may be assumed appellant is correct in asserting that the Fifth Amendment to the Federal , Constitution wherein it provides: “nor shall (any person) be' compelled in any criminal case to be a witness against himself,” does not apply to prosecution under State laws. See the recent decision in Adamson v. California, 332 U. S. 46 (67 Sup. Ct. 1672, 91 L. Ed. 1903, 171 A. L. R. 1223). Aside from the above reference to the Fifth Amendment to the Federal Constitution appellant’s primary contention as stated in the brief is:
“The privilege guaranteed by article 2, § 16, of the (Michigan) Constitution of 1908, i.e., that ‘no person shall be compelled in any criminal case to be a witness against himself,’ should■ (not), in the circumstances of this case, be extended to protect a State witness from testifying as to matters that might tend to incriminate him in a pending prosecution under a law of the United States.”
On several occasions this Court has expressed itself as to the scope of immunity from self-incrimination that is afforded by article 2, § 16, of the State Constitution, just above quoted. See In re Watson, 293 Mich. 263; In re Schnitzer, 295 Mich. 736; In re Ward, 295 Mich. 742; and In re Cohen, 295 Mich. 748. The three cases last above cited were simultaneously handed down (December 11, 1940) after painstaking consideration of the phase of the law now under consideration. In the Ward Case we said:
“As said in Be Schnitser, ante, 736, and in Be Cohen, post, 748, Ward cannot be required to give answers ‘that will lead straight to Federal prosecution.’ ”
And in the Cohen Case we quoted from the Watson Case the following:
“We are of the opinion that the privilege against self-incrimination exonerates from disclosure whenever there is a probability of prosecution in State or Federal jurisdictions.”
We are aware that holdings at variance with the above can be found in other jurisdictions, including holdings in the Federal courts. Nonetheless we adhere to our previous holdings, not alone on the ground of established precedent, but rather that the holdings in the above cited cases are essential to render fairly effective the quoted State constitutional provision against self-incrimination. It seems like a travesty on verity to say that one is not subjected to self-incrimination when compelled to give testimony in a State judicial proceeding which testimony may forthwith be used against him in a Federal criminal prosecution. And it is self evident that immunity granted-under a-State statute would be of no avail in a Federal prosecution. Appellant’s contention just above considered is not tenable.
Next in appellant’s brief it is urged:
“Having accepted immunity from prosecution, Hemans should not be allowed to assert his constitutional privilege for the purpose of escaping prosecution for a subsequent criminal act in violation of a Federal law basically designed to conserve State sovereignty. ’ ’
And in this connection appellant further asserts:
“Hemans’ course of conduct clearly evinces mala fides in assertion of his privilege against self-incrimination. ’ ’
It is important to note that when, incident to giving testimony before the grand juror, Hemans was granted immunity, he was not then confronted with probable Federal prosecution; but when later he was called upon to testify before the circuit judge sitting as an examining magistrate, Hemans was in custody charged with a Federal offense alleged to have been committed after Hemans was a witness in the one-man grand-jury proceedings. It was on this' latter occasion when Hemans was a witness before the examining magistrate that for the first time there arose the circumstance which afforded reason for Hemans’ assertion that the testimony sought from him would tend to self-incrimination in the Federal case. Whether under those circumstances Hemans acted in good or in bad faith is quite beside the point. The quoted constitutional inhibition against self-incrimination applies alike to sinner and saint. The words of the Constitution are “no person shall be compelled in any criminal case to be a witness against himself.” We find nothing in. this record which would justify holding that Hemans forfeited his constitutional right as to self-incrimination.
On this phase of the case'appellant cites and relies upon Alderman v. People, 4 Mich. 414 (69 Am. Dec. 321); Foster v. People, 18 Mich. 266; and Hamilton v. People, 29 Mich. 173. Each of these cited cases is distinguishable from the instant case because of this very material fact. In each of the three cases the party attempting to assert privilege and thereby avoid giving the testimony sought to be elicited was a joint wrongdoer who had consented to become a witness and had given'testimony disclosing his own guilt. The purport of the holdings in the cited cases is disclosed by the following:
“An accomplice who consents to become a witness for the people on the trial of his associates for the offense charged, must disclose all that he and his associates may have said or done in relation to such offense, and can not be excused from testifying to statements made by him to his attorney, on the ground of their being privileged communications.” Alderman v. People (syllabus), supra.
“An accomplice who has given testimony criminating himself, as well as his co-defendant, on whose trial he testifies, cannot refuse to answer fully on cross-examination concerning the entire transaction of which he has undertaken to give an account, and in which he has shown himself guilty.” Foster v. People (syllabus), supra.
Clearly the situation presented in the instant case is materially different than in the cases just above cited. Hemans at no time volunteered to give nor did he give any self-incriminating testimony in the prosecution of the people’s case against Simon D. DenUyl, Charles B. Bohn, et al., which prosecution gave rise to the instant appeal. Instead, when called as a witness in the examination in the DenUyl case Hemans, who then was in custody charged with a Federal offense, for the first time was confronted with the circumstance in consequence of which he asserted his constitutional right as to giving- self-incriminating testimony. Further, two of the three cited cases do not involve an assertion of the constitutional right against self-incrimination. The cited cases are not in point in the instant ease.
Appellant makes the further contention that the circuit judge erred in sustaining Piemans ’ refusal to testify “on the theory that his testimony might aid the prosecution of the Federal offense in the district court of the United States.” Later and after Hemans had been convicted in the United States district court, appellant amplified the record on this appeal and therein asserted that the circuit judge was in error in denying, subsequent to He-mans’ conviction, the people’s motion to set aside the former ruling which sustained Hemans in his refusal to give the testimony sought.
This phase of the appeal raises the question as to whether after all Hemans’ answers to the propounded questions might have tended to self-incrimination in the Federal prosecution. In his order sustaining Piemans’ refusal to answer the questions propounded the ' circuit judge acting as the examining magistrate quoted two of these questions, and we embody them in an accompanying note. Mere reading of these questions quite conclusively discloses that Hemans’ answers not only might have aided in prosecuting him in the Federal case, but clearly an affirmative answer by Hemans to either question would have been of material aid in prosecuting the Federal charge. An essential element of the offense with which Hemans was charged is that he left the State of Michigan “with intent * * * to avoid giving testimony in any criminal proceedings in such place in which the commission of a felony is charged.” It is quite impossible to say that an affirmative answer which might have been given by Hemans to either of the questions would not have tended materially to establish “an intent” on his part by leaving the State to avoid giving testimony in the criminal prosecution against DenUyl and. others. Hence to have required Hemans to answer would have been to compel him to give testimony which could be used against him in a criminal case in violation of his constitutional right. Appellant’s contention is not sustainable wherein it is asserted: “The testimony sought to be evoked from the witness Hemans, could not possibly * * * aid the Government of the United States in obtaining a conviction of Hemans on the Federal charge pending against him.”
As intimated above, the circuit judge was not in error in refusing, after Hemans had been convicted, to set aside the order theretofore made sustaining Hemans ’ refusal to answer the questions involved in this appeal. At the time of the later ruling the case against Hemans had not been prosecuted to a final conclusion. It is still pending in the Federal courts. In the event of Hemans being granted a new trial the testimony which Hemans refused to give, had he answered, might still be used against him in violation of his constitutional right.
The rulings from which this appeal was taken were correct at the time they were made and are affirmed. The matter is still pending before the ex amining magistrate and lie is authorized to proceed therein.
Butzel, Bushnell, Sharpe, Boyles, Reid, and Dethmers, JJ., concurred. Carr, C. J., did not sit.
‘1 Question Number One
“Let me ask you, Mr. Hemans, did you, between the dates of January 1, 1941 and December 31, 1941, receive from one Simon D. DenUyl, certain moneys with the agreement and understanding, either at the time of receiving the said money by you, or previous thereto, between you and the said Simon D. DenUyl, that said moneys would be used by you to pay certain legislators in the State of Michigan, to influence their actions and votes upon legislation restricting branch banking in, the State of Michigan?
“Question Number Two
“Did you, between January 1, 1941 and December 31, 1941, enter into an understanding and agreement with one Simon D. DenUyl, to cooperate with and assist him, and other persons whom he represented, and with whom he was associated, or cooperating with, to influence, by certain methods, including the payment of moneys to, legislators of the State of Michigan to influence their actions and votes upon legislation restricting branch banking in the State of Michigan, and did you subsequently act upon this agreement?” | [
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Sharpe, J.
Plaintiff, Chester A. Ferris, is a resident of the city of Detroit and is a duly and legally elected member of the house of representatives of the State of Michigan. He filed a petition in the Supreme Court for a writ of mandamus commanding defendants, the auditor general and the treasurer of the State of Michigan, to honor and pay his certified account of expense in accordance with the provisions of Act No. 5, Pub. Acts 1947.
Upon the filing of the mentioned petition we issued an order to show cause. Defendants filed an answer and return to the order to show cause and assert that the act in question offends article 5, § 9, of the State Constitution and is void for that reason.
Plaintiff relies upon the following sections of the act in support of his petition:.
“Sec. 5. Each member of the legislature and the president of the senate shall receive, at the expense of the State, 1 copy of the laws, journals, and documents of the hoiise of which he is a member. He shall, while absent from his usual place of residence 'while in attendance at regular or extra sessions of the legislature and while in the discharge of his official duties in the service of the State, be reimbursed for actual expenses incurred for room and meals in the same amounts as are paid to State officers, for like expenses while absent on business of the State, hot to exceed $7.50 per diem.
“Sec. 6. The expense accounts of the members of the legislature and the president of the senate shall be paid by the auditor .general on vouchers approved and submitted by the secretary of the sen-. ate and the clerk of the house of representatives, out of appropriations made for the expenses of the legislature in accordance with the accounting laws of tlie State.”
Phillip C. Kelly, having been permitted /to intervene as defendant, urges that where compensation and expenses of members of the legislature are fixed by the Constitution of the State of Michigan, such compensation or expenses may not be increased by an act of the legislature, the same being contrary to article 5, § 9, of the Michigan Constitution (1908), which provides:
“The compensation of the members of the legislature shall be three dollars per diem during the term for which they are elected, and they shall receive no further compensation than as specified in this section for service when the legislature is convened in extra-session. Members shall be entitled to ten cents per mile and no more for one round trip to each regular and special session of the legislature by the usually traveled route. Each member shall be entitled to one copy of the laws, journals and documents of the legislature of which he is a member, but shall not receive, at the expense of the State, books, newspapers or perquisites of the office not expressly authorized by this Constitution.”
The attorney general, while representing the auditor general and the State treasurer, has filed a brief in which he urges that the act in question is a valid exercise of legislative power and not in violation of the Constitution; that the expression “compensation for services ’ ’ in the Constitution does not prevent or inhibit the legislation which is designed to reimburse members of the legislature for necessary subsistence expenses while they are away from their homes and in the service of the State; and that the allowance in question is not d “perquisite of the office” in support of which he relies upon Ware v. City of Battle Creek, 201 Mich. 468 (L. R. A. 1918E, 673), and State, ex rel. Harbage, v. Ferguson, 68 Ohio App. 189 (36 N. E. [2d] 500).
In the Ware Case, supra, the ordinance of the city of Battle Creek provided for a salary for the city attorney and, also, provided that he should not be entitled to any fees or perquisites of office in addition to his salary. At a later date the common council adopted a resolution providing for the payment of $40 per month for office expense. Plaintiff, as city attorney, brought action to enforce such. payment. The trial court entered judgment against plaintiff. Upon appeal we quoted with approval the definition of “perquisite” from Bouvier’s Law Dictionary: “Perquisite means something gained by a place or office beyond the regular salary or fee. ’ ’ In holding that the allowance for rent of the office which was actually used by the city attorney in the discharge of his official duties was not a perquisite of office within the meaning of the ordinance, we said:
“The word ‘perquisite’ means some emolument or profit beyond the salary which was paid to the city attorney, and can not be said to mean moneys which were allowed him for expenses, because there was no profit or emolument tó him in the allowance for office rent, which he had to disburse.”
In the ease of State, ex rel. Harbage, v. Ferguson, supra, the court of appeals of Franklin county, Ohio, held that a statutory provision that each member of the legislature shall receive travel allowance of five cents a mile from and to his place of residence once a week during sessions in addition to his salary is not void as violating a constitutional provision that such members shall receive fixed compensation prescribed by law and no other allowance as such travel allowance is reimbursement for travel expenses. In the opinion it is stated that “to invalidate a statute the repugnancy between the statute and the Constitution must be plain, clear, substantial, palpable, strong,' manifest, obvious, necessary, free from doubt and incapable of a fair reconciliation.” The court also made the following observations:
“It frequently happens that one is engaged at a fixed salary or compensation, in addition to which he has an allowance for expenses. If such an allowance goes to increasing the fixed salary, then we would be required to say that it is forbidden, as, for instance, there could be no allowance made for hotel' and living expenses, and such an item would seem to fall within the intention of the drafter of the constitutional provision, when it was provided that there should be no other allowance in the payment of postage or ‘otherwise.’ ”
The Ware Case is not authority for the allowance of personal expenses, such as room, meals and other incidentals. Nor can it be said that the Ferguson Case is such authority, as the court clearly indicated that hotel and living expenses would fall within the prohibited constitutional provision.
By the great weight of authority there is a distinction between legislative or governmental and personal expenses. Those expenses incurred in the performance of official duties as in the Ware Case are allowable, while purely personal expenses are considered as perquisites of office, and being such are forbidden by constitutional provision.
In State, ex rel. Attorney General, v. Turner, 117 Kan. 755 (233 Pac. 510), it is said:
. “All legislative expenses may be properly paid. The expenses that may be paid are not those that are incurred by a member of the legislature because he is at the capital city; they are those that are incurred by him in the performance of his duties. They are legislative expenses, not personal ex-' penses. The distinction between expenses that are legislative and those that are personal is that legislative expenses are those that are necessary to< enable the legislature to properly perform its functions, while those that are personal are those that must be incurred by a member of the legislature in order to be present at the place of meeting — expenses for his personal comfort and convenience which have nothing to do with the performance of his duty as a member of the legislature. Personal expenses are those incurred for rooms, meals, laundry, communications with their homes, and other things of like character,”
Other jurisdictions in harmony with the above statement are recorded in the following decisions: Dixon v. Shaw, 122 Okla. 211 (253 Pac. 500, 50 A. L. R. 1232); Gallarno v. Long, 214 Iowa, 805 (243 N. W. 719); State, ex rel. Banker, v. Clausen, 142 Wash. 450 (253 Pac. 806); Ashton v. Ferguson, 164 Ark. 254 (261 S. W. 624); Jones v. Hoss, 132 Ore. 175 (285 Pac. 205); Peay v. Graham, 162 Tenn. 153 (35 S. W. [2d] 568).
The act in question provides that a member of the legislature while in the discharge of his official duties at a session of the legislature shall be reimbursed for actual expenses incurred for.room and meals, not to exceed $7.50 per diem. Such an allowance for board and room, if .permitted by the act here under consideration, would thereby become a perquisite of the office and as such is prohibited by the Constitution., It, therefore, follows that the act in' question in unconstitutional for the reasons above stated.
The petition for a writ of mandamus is denied, but without costs as the construction of a public act is involved.
Carr, C. J., and Butzel, Bushnell, Boyles, North, and Dethmers, JJ., concurred with Sharpe, J. | [
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Sharpe, J.
This -is a suit for an injunction and a declaratory judgment against the State land office board. By stipulation followed by a court order Anthony F. Posnik was added as a party defendant.
The facts are not in dispute. In September, 1942, certain property in the city of Detroit was offered for sale under the provisions of Act No. 155, § 8, Pub. Acts 1937, as amended (Comp. Laws Supp. 1945, § 3723-8, Stat. Ann. 1946 Cum. Supp. § 7.958), by the State • land office board through its supervisory sales agent, Tri-County Land Agency, Inc., at an appraised value of $9,600. No offers to purchase were received at this price. A' short time prior to February 11, 1946, the same property was re-appraised at $7,500.
On February 15, 1946, plaintiff made an offer of $9,100 with the Tri-County Land Agency; Inc., using the standard offer-to-purchase form. February 22d of the same year fell on Friday and the manager of the building in which the offices of the State land office, board and the Tri-County Land Agency, Inc., are located informed the manager of the Tri-County Land Agency, Inc., that heating in the building on Saturday would be discontinued. Whereupon, the manager of the Tri-County Land Agency, Inc., posted a notice of closing on the office bulletin board and sent out a standard form letter to all parties whose offers had been raised by plaintiff’s offer that the office would be closed Friday, February 22, 1946, and that “you- will have until Monday, February 25, to raise the above” offer.
Plaintiff called at the office of the agency on Saturday, February 23d and found it closed. On Monday, February 25th, plaintiff at about the hour of 11 a.m., again called at the office and was informed that the time for raising offers would not expire until 4 p.m. on that day. At about 4:15 p.m. on the same day, plaintiff again called the agency by telephone and was informed that a higher offer than his had been received. Two days later he received, through the mails, a notice of a receipt of a higher offer with instructions that he was permitted to raise the higher offer which had been received. Plaintiff did not enter an offer raising* any of the four higher offers received subsequent to his first and only offer. The final of the' four higher offers, received subsequent to the offer of plaintiff, was in the amount of $12,100 made by Anthony F. Posnik on March 18, 1946.
The cause came on for,trial and the trial court held that the purchase offer made by plaintiff was a binding agreement; and that the refusal of the land office board to accept the balance' of the purchase price and its refusal to give a conveyance of the land was arbitrary, unreasonable, capricious and contrary to the agreement. A decree was entered in harmony with the opinion filed by the trial court.
Defendant State land office board appeals and urges that the State land office board is empowered to reject any offer at any time prior to delivery of deed or land contract for such reason as it deems sufficient in all cases where the land is sold under the provisions of Act No. 155, §8, Pub. Acts 1937, as amended; and that the State land office board would not be committing an abuse of discretion if it rejects any or all offers for lands being sold under the provisions of section 8 of the above act, as amended, under the circumstances of this case.
Under Act No. 155, §11, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 3723-11, Stat. Ann. 1946 Cum. Supp. § 7.961):
‘ ‘ The State land office board is authorized to promulgate such rules and regulations as may be necessary to carry out the purposes and provisions of this act.”
In Emmons v. State Land Office Board, 305 Mich. 406, we said: ‘ ‘ The • board had a right to make reasonable rules and regulations.”
Section 4 of rules and regulations adopted by the State land office board pertaining- to the private sale of State-owned lands under section 8 of State land office board act by exclusive supervisory agents, Michigan Administrative Code 1944, p. 426, reads as follows:
‘ ‘ Offer Subject to Higher Offer for Seven Days. 4. Each offer will be held for a period of seven, days from the day the offer is received. If, the 7th day falls on a legal' holiday the offer will be held by the board until the close of the following business day. During said seven-day period no further offer will be received unless such further offer is in an amount increased by $25, or not less than 10 per cent, of the minimum sale price, whichever is the larger. ”,
Section 6 (pp. 426, 427) of the above rules, in part, reads as follows:
“Deed or land contract, as the case may be, shall be issued in the exact name, or names, as designated in the ‘offer to purchase.’ The board reserves the right to reject any offer at any time prior to delivery of deed or land contract, and in the evenl of rejection by the board, it - will return the. deposit accompanying the offer. ”
"When plaintiff paid his initial deposit for the land involved in the case at bar, he received a receipt or acknowledgment of which the following is a copy:
“Date: 2-15-1946.
“The undersigned hereby acknowledges receipt of the sum of $1,820 as a deposit in accordance with the terms and provisions of the above offer, and ágrees to accept no other offers for the sale of the above lands after 7 days from the date hereof while this offer remains in force.
“Tri-County Land Agency, Inc., “Supervisory 'Sales Agent for “State Land Oeeice Board, “By: Charles E. Parady.”
A similar situation arose in Porter v. State Land Office Board, 308 Mich. 324. In that case plaintiffs on August 3, 1943, bid the sum of $255 for a parcel of land, which was in excess of its appraised valuation. On October 8, 1943, the village of Saugatuck ,had adopted a resolution requesting defendant board to convey the lands in question to the village for public purposes. Defendant land board rejected plaintiff’s bid in .order to make a conveyance to the village. Plaintiffs urged that the confirmation of sale, the payment of the bid price, and the certificate of purchase created a contract obligating defendant board to execute and deliver a quitclaim deed of the lands in question. We there said:
“The memorandum of salé signed by plaintiffs and the certificate of sale signed by defendant board both provided in substance that the sale was subject to the provisions of the act and to the rules and regulations of the board. The board had the right under section 11 of the.act to adopt reasonable rules and regulations. Emmons v. State Land Office Board, 305 Mich. 406. It adopted a rule whereby it reserved ‘the right- to reject any or all bids at any time prior to delivery of deeds or contracts’ to purchasers. The subsale at whibh plaintiffs presented their bid was held August 3,1943, and the board had not delivered deed to plaintiffs when, on October 8th, the village of Saugatuck requested a transfer of the lands for public purposes. If the board’s rule was reasonable and valid, it had the right to reject plaintiffs ’ bid on October 8th. It is clear that the rule protected -the right of municipalities under section 8 to acquire lands for public purposes ‘at any time prior to delivery’, of a deed to the highest bidder at a sale held in pursuance of said action. By reference, the rule in question became a part of the confirmation of sale and. of the dertificate of sale. The board could not have retained plaintiffs’ payment and refused to give a deed beyond a reasonable length of time, but the period from the sale on August 3d to the request of the village on October 8th was not an unreasonable delay. Under the circumstances shown we cannot say that such rule was unreasonable.
“Plaintiffs contend that the-rule deprived them of vested property rights as purchasers of the lands, without due process of law. The sale was held, plaintiffs’ bid was presented, the price was paid, and the certificate of purchase was issued, subject to the provisions of the act and the rules and regulations of the board, that is, subject to the right of the village of Saugatuck, under section 8, to acquire the lands for public purposes, and the right of the board, under its rules and regulations, to reject plaintiffs’ bid at any time prior to delivery of deed. Therefore, as plaintiffs acquired' no absolute right to the lands, the board’s rejection of their bid did not deprive them of property rights without due process of law.”
It should be noted that the reason for rejecting plaintiffs’ bid in the above case was,,.because the village of Saugatuck requested a transfer of the lands for public purposes, while in the case at bar plaintiff’s bid was neither accepted nor rejected owing to the fact that a restraining ordér was issued when plaintiff began the instant suit enjoining the board from disposing of the property to any person other than plaintiff.
We can assume that the board would, have accepted the higher bid if it had not been restrained by a court order. It should be noted that the certificate of sale in each case provided in substance that the sale was subject to the provisions of the act and to the rules and regulations of the board.
In view of the fact that a declaratory decree is sought, we shall discuss the question of the right of the board to arbitrarily reject any bid. The discretion of the board must be exercised in a reasonable manner.
In Taylor v. Robertson, 16 Utah, 330, 336 (52 Pac. 1), it was said:
“Discretion, when; vested in an officer, however, does not mean absolute or arbitrary power. The discretion must be exercised in a reasonable manner, and not maliciously, wantonly, and arbitrarily to the wrong and injury of another. This is held to be the rule applicable to public officers who are bound to exercise their deliberate judgment in the discharge of their official duties, and is applicable to all inferior magistrates and others called to the performance of functions in their nature and character quasi-judicial, while acting within their jurisdiction and the legal scope of their powers as fixed by law.”
In heavy v. City of Jackson, 247 Mich. 447, we quoted with approval from 3 McQuillin on Municipal Corporations (2d Ed.), § 1340, as follows:
“ ‘The exercise of discretion to accept or reject bids will only be controlled by the courts when necessary to prevent fraud, injustice or the violation of a trust. The court will indulge the presumption that the authorities acted in good faith in awarding the contract.’ ”
In our opinion the action of the board in permitting bid to be made on March 18th, under the circumstances of this case, was not an arbitrary act nor an abuse of, discretion. It, therefore, follows that plaintiff’s bill of complaint should be and is dismissed and the restraining order dissolved, with costs to State land office board.
Carr, C. J., and Btjtzel, Bushnell, Boyles, Reid, and North, JJ., concurred. Dethmers, J., did not sit. | [
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Sharpe, J.
(for reversal). This is an appeal from an order denying a ..motion to dismiss plaintiff’s bill of complaint.
The facts are not in dispute and are as follows: On November 26,1945, defendants Leslie L. Mitchell and Miriam Mitchell, his wife, were the owners of a parcel of real estate in Detroit, Michigan. On the above date, they entered into an agreement to sell said property to plaintiff, the written memorandum of which is as follows:
“Nov. 26, 1945
“Received of Louis Goldberg,
“Five Hundred ($500.00) deposit on the sale of our home, located at 18948 Wisconsin Avenue, Detroit, Mich. Balance $13,000.
“(Signed) Leslie L. Mitchell
“(Signed) Miriam Mitchell
“Accepted:
‘ ‘ (Signed) Louis Goldberg. ’ ’
On May 16, 1946, plaintiff tendered to defendants the sum of $13,000 representing the balance due on the purchase price. The defendants refused to accept the amount offered and on May 18, 1946, returned to plaintiff the initial $500 paid upon the purchase price. On June 18, 1946, plaintiff began' suit for specific performance of the alleged contract.
On July 1, 1946, defendants filed a motion to dismiss plaintiff’s bill of complaint in which it is alleged :
“2. ■ That the alleged contract to sell as set up in plaintiff’s bill of complaint is not sufficient under the statute of frauds to bind defendants to make a sale.
“3. That the memorandum does not state the time or times of payments upon the sum remaining due, and is an insufficient compliance with the statute of frauds to support a bill for specific performance.
“4. That the said writing does not contain a sufficient memorandum of the terms to satisfy the statute of frauds since the time'of performance is not stated.”
On July 19, 1946, the trial court entered an order denying the motion to dismiss. Upon leave granted, defendants appeal and urge that the receipt in question is not sufficient to satisfy the statute of frauds (3 Comp. Laws 1929, § 13413 [Stat. Ann. § 26.908]), as the terms of payment and time of performance are not specifically stated. Plaintiff urges that the contract involved in this case fixes the property, parties, price and terms of payment; and that under the terms of payment plaintiff may pay the balance.
In Cooper v. Pierson, 212 Mich. 657, we said:
“It has been held by this Court that a memorandum to be sufficient under the section involved :?• * * must be complete in itself and leave nothing to rest in parol. * * * And that it must be certain, and definite as to the parties, property, consideration, premises and time of performance.”
In Cramer v. Ballard, 315 Mich. 496, 503, we said:
“The general rule of law is well settled in this State, that in order to satisfy the statute of frauds the memorandum must be complete in itself and leave nothing to rest in parol.” •
There are, however, two exceptions to the above rule. Consideration need not be expressed in the memorandum, see Benedek v. Mechanical Products, Inc., 314 Mich. 494, and the property, although not completely described, is sufficiently identified if it be described by name so as to be identified by extrinsic evidence not contradictory of the contract, see Cramer v. Ballard, supra.
The facts in the case at bar do not come within either of the above exceptions. It must be conceded that the terms of payment and time of performance are not specifically stated in the instrument involved in the present case.
In Gault v. Stormont, 51 Mich. 636, we said:
, “For, though it (receipt) specified the purchase price, it failed to express the timé or times of payment, and there ,is no known and recognized custom to fix what is thus,left undetermined. A memorandum, to be sufficient, under the statute, must be complete in itself, and leave nothing to rest in parol. ”
In Windiate v. Leland, 246 Mich. 659, the issue involved the sale of land evidenced by a receipt, a copy of which reads as follows:
“$200.00
“Pontiac, Michigan,
July 21, 1920.
“Received from Frank Tyack, two hundred and no-100 dollars to apply on the purchase price of land at Silver Lake, payment to begin November 1, 1920; purchase price agreed on eight thousand dollars.
“John Windiate,
“Per L. M. Eaton.”
We there said (p. 666):
“In order to satisfy the statute of frauds, the memorandum must.be complete in itself and leave nothing to rest in parol. The receipt given by John Windiate to Tyack does not comply with this requirement. * # # The only thing Tyack agreed to do was to pay the' purchase price. But, under the uniform holdings of this Court, payment of the purchase price alone is not sufficient to take the case out of the statute.”
It is to be noted that the receipt in the above case fails to state the terms of the payments and the time when, all payments are to be made. In the case at bar, the receipt fails to state the amount of' the payments and the.time at which payments are to be completed. In our opinion the receipt does not comply with the requirements of the statute of frauds. The trial court was in error in failing to dismiss plaintiff’s bill of complaint.
The decree should be reversed, and a decree should be entered in the Supreme Court dismissing plaintiff’s bill of complaint, with costs to defendants.
Carr, C. J., concurred with Sharpe, J. | [
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Bushnell, J.
Leave to appeal in the nature of certiorari was granted to appellants Marshall Furnace Company and Michigan Mutual Liability Company in order to resolve doubt with respect to a recent amendment to the workmen’s compensation act. The basic question concerns the construction of Act No. 10, pt. 7, § 4, Pub. Acts 1912 (1st Ex. Sess.), as added by Act No. 61, Pub. Acts 1937, and as amended by Act No. 245, Pub. Acts 1943 and Act No. 318, Pub. Acts 1945 (Comp. Laws Supp. 1945, § 8485-4, Stat. Ann. 1946 Cum. Supp. § 17.223).'-Part 7 came into the workmen’s compensation law by Act No. 61, Pub: Acts 1937, and covers occupational diseases. The schedule of diseases for which compensation was provided in the 1937 act included silicosis and pneumoconiosis. Temporary or permanent total disability or death from silicosis or other dust disease was compensable in an amount not to exceed an aggregate total of $3,000. The aggregate amount payable, according to part 7, § 4 of the act, was to be computed in the following manner:
i{If disablement or death occurs during the first calendar month in which this act becomes effective not exceeding the sum of five hundred dollars; if disablement or death occurs during the second calendar month after which this act becomes effective not exceeding the sum of five hundred and fifty dollars; thereafter the total compensation and benefits payable for disability and death shall increase at the rate of fifty dollars each calendar month. The aggregate amount payable shall be determined by the total amount payable in the month in which disablement or death occurs. In no event shall such compensation exceed an aggregate total of three thousand dollars. ’ ’
In 1943, under Act No. 245, many changes were made in the workmen’s compensation act. The schedule of diseases in part 7 was eliminated and in place thereof other appropriate language was substituted. In section 4, with which we are concerned, the method of computing compensation for silicosis and other dust disease remained unchanged, although the aggregate total of compensation was increased from $3,000 to $4,000.
By Act No. 318, Pub. Acts 1945, further changes were made in section 4. The aggregate total was increased to $6,000; and although the method of computing compensation was retained, the amount added during the second calendar month was increased from $50' to $75, and from $50, to $75 each calendar month thereafter. The 1945 amendment contains this proviso:
“That rights accruing prior to the effective date of this amendatory act shall be preserved and governed by the provisions of this section prior to the' effective date of this amendatory act.”
The 1945 amendment was ordered to take immediate effect and was approved May 28, 1945. It is with the quoted language of the proviso that we are presently concerned.
Plaintiff Edward Hosier entered the employ of Marshall Furnace Company in 1941. He worked regularly as a molder from the date ofs his employment, except for occasional layoffs because of lack, of work, until April 26, 1943, and from that date continuously to- June 30, 1945 without any layoffs. During the summer of 1943 he consulted a physician because of occasional vomiting spells and was treated for secondary anemia.. An X-ray of his lungs, made on August 16, 1943, showed evidence of silicosis, but he continued to work until June 30, 1945, when he was given a week’s vacation with pay. Because it was believed that a few weeks’ rest would he beneficial, he did not return to work at the end of his vacation. On September 18, 1945, he secured a statement from his doctor that he was suffering from silicosis and no longer was able to work as a molder. In the light of this statement the employer on October 15, 1945, filed a report of industrial injury, reading: “Claims silicosis.” In this report under the heading “Date of Injury” the employer stated, “last day worked, June 30, 1945.”
Dr. Howard, a specialist in diseases of the lungs, after an X-ray study, made on November 6, 1945, testified that Mosier was suffering from “type two. pneumoconiosis with extensive involvement of both lungs. ’ ’
The department of labor and industry determined that Mosier was entitled to compensation of $21 per week from July 9, 1945, but not to exceed an aggregate of $2,300. This gross amount was computed by the department in the following manner:
“From July 30, 1943 to August, 1943 (the first month silicosis resulting from molding became compensable)... $ 500
From August 30, 1943 to July 9, 1945 (the date of disablement found by the commission) 24 months at $75....... 1,800
Total $2,300”
Defendants contend that the computation should be as follows:
“From July 30, .1943 to August 30, 1943. $ 500
From August 30, 1943 to May 25, 1945 (the effective date of Act No. 318 of
1945) 21 months at $50............ 1,050
From May 25, 1945 to June 30,1945 (the , actual date of disablement) 1 month at $75.....................-....... 75 .
Total $1,625”
Defendants point out that although the difference in the two computations is only $675, it is important to have a determination of the issue‘raised in this case so that uniformity may be had in calculating benefits under the present law.
They argue that the department did not follow the course prescribed by this Court when we said in King v. Davidson, 195 Mich. 157, 159:
“In construing this act, its words are to be taken and construed in the sense in which they are understood in common language, taking into consideration the text and subject-matter relative to which they are employed. ’ ’
They further point out that:
“If reasonably possible the statute should be so construed as to render all of its provisions operative and to carry out the purpose and intent of the enactment.” Munson v. Christie, 270 Mich. 94, 104.
See, also, Clickner v. Ingham County Road Commission, 278 Mich. 429.
They urge that the application of these principles of statutory construction requires the conclusion that Mosier’s rights are to be preserved and governed by the law as it read up to May 28,1945. They further claim that Act No. 318, Pub. Acts 1945, applies only to rights accruing after May 28,1945, and therefore Mosier can only benefit by one monthly increase factor of $75 after May 28th.
Mosier argues from the language in Casson v. Graham Paige Motor Co., 312 Mich. 452 (a hernia case), that liability attaches as of the date of disablement. See, also, Ramsey v. Bendix Aviation Corp., 314 Mich. 169 (19 N. C. C. A. [N. S.] 590), where it was held in a chrome poisoning case that the liability of defendant should be determined as of the date of the employee’s disablement.
¥e have not heretofore construed the language in controversy and are without the benefit of any direct controlling authority. But see Stewart v. Lakey Foundry & Machine Co., 311 Mich. 463. Mosier could not have become entitled to compensa tion until lie suffered a disablement; nor could the aggregate total of his compensation be determined until after the disablement occurred.
The formula for computing the aggregate amount has remained unchanged since its inception in 1937, except as to one of its factors, i.e., from $50 to $75 per month. ,We can see no distinction between the change in this factor of the formula and other changes which have been made in the compensation act, such as the recent increase of the maximum weekly compensation from $18 to $21 per week, or changes that have been made in illness and burial expenses, or amounts to be awarded dependents. See Act No. 10, pt. 2, §§ 1, 8, 9, 10, Pub. Acts 1912 (1st Ex. Sess.), as amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, §§ 8417, 8424, 8425, 8426, Stat. Ann. 1946 Cum. Supp. §§17.155, 17.158, 17.159, 17.160).
Without the language of the proviso here in dispute it might be argued with some force that Mosier is only entitled to compensation in the aggregate of $575, or, at best, $650. The language of the proviso was to protect employees against such an eventuality. The maximum benefit payable is controlled by the amount stated in the 1945 amendment, without regard to the act as it existed before its amendment. Those employers, employees and insurers who are subject to the act are at all times aware that it is within the power of the legislature to increase or decrease compensation or change the method employed in computing its amount. The fact that computation of compensation does begin at a time prior to an amendatory act does not deprive an employee of the benefits of such amendatory act if his disablement occurs subsequent to the effective date of such act. On the other hand, any right-to compensation which had accrued by reason of a disablement prior to the effective date of the amendatory act was preserved and governed by the language of the proviso and is controlled by the act formerly in effect. It was the clear intent of the legislature to leave no doubt that such a right was not extinguished by the enactment of the 1915 amendment.
The award of the department of labor and industry is affirmed, with costs to appellee.
Carr, C. J., and Butzel, Sharpe, Boyles, Reid, North, and Dethmers, JJ., concurred. | [
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Bushnell, J.
Defendant Dorothy'Jackson wasinformed against on March 30, 1946, for maintaining a house of ill-fame. When arraigned on April 13th, she stood mute and a plea of not guilty was entered.
At the trial on April 15th, before the jury was impaneled, defendant’s attorney advised the court that after the information was handed him on the 13th he found that Cora Bigelow, who was indorsed thereon as a witness, was not a certain Cora Jones. Claiming that both Cora Jones and Martha Williams, who rented rooms from the defendant, were material witnesses, he moved the court to order their names indorsed on the information. The discussion between court and counsel developed the fact that neither of these witnesses was produced at the examination. Counsel told the court that, because of the necessity of investigating the identity of the witness, this was the first opportunity he had to ask that Cora Jones be indorsed on the information as a witness for the people.
The court called attention to the fact that the examination was held in the justice court on February 18th, the return of the justice had been filed on the 24th, and the information was filed on March 30th. Consequently, the names of the people’s witnesses had been available to defendant and her counsel since March 30th. After an extended colloquy Nthe court declined to require the prosecutor to indorse the names of the two persons on the information.
At the close of the people’s case defendant moved to dismiss the complaint and warrant, which motion was denied. Sufficient testimony was introduced by the people to support the allegations .of the information, and the trial judge properly denied the motion.
Defendant testified in her own behalf that she had lived on the premises for four years and that she had rented separate rooms to Cora Jones and Martha Williams, for which they paid her by the week. She testified that on the night in question she w¡ent to Battle Creek, leaving Cora Jones and Martha Williams in her apartment. She could not remember what time she returned because she had been drinking.. After undressing; she put on her robe and went to sleep on a studio couch in the living room and was awakened by the police officers, who arrested her. She disclaimed renting’ the rooms .for immoral purposes. After a jury verdict of guilty, 'defendant was sentenced.
Defendant was granted leave to appeal and argues that the failure of the prosecutor to call Cora Jones and Martha Williams, alleged prostitutes and material witnesses, constituted an infringement of her rights under article 6 of amendments to the Constitution of the United States and article 2, § 19 of the Michigan Constitution (1908). She also insists that the refusal of the trial judge to require the prosecutor, to indorse the names of these material witnesses on the information is reversible error under the provisions of 3 Comp. Laws 1929, § 17254 (Stat. Ann. §28.980).
This statute requires .that the prosecuting attorney indorse on the information the names of the wit nesses known to Mm at the time of filing the same, and that “names of other witnesses may be indorsed before or during the trial by leave of the court and upon such conditions as the court shall determine. ’ ’
The Court said in People v. Blue, 255 Mich. 675, 678:
“The indorsement of names after filing is'wholly within the discretion of the court. The discretion, of course, is judicial, not personal, must be exercised with due regard to protection of the right of an accused to prepare his defense and be accorded a fair trial, and is to be reviewed upon the showing made and in view of the circumstances.”
In People v. Kynerd, 314 Mich. 107, the names of certain persons claimed to be res gestae witnesses were not indorsed on the information. At the trial held a nionth and 10 days later defendant moved that the prosecutor be required to produce these witnesses. Defendant knew their names but remained silent from the date of filing the information until the trial. It was held, under .the circumstances, that the trial judge did not abuse his discretion in declining to order the indorsement of their names and their production by the prosecutor as witnesses. The facts in the instant case are sufficiently analogous to be controlled by decision in the Kynerd Case.
Furthermore, from our “examination of the entire cause” it does not “ affirmatively appear that the error complained of has resulted in'a miscarriage of justice.” 3 Comp. Laws 1929, § 17354 (Stat. Ann. § 28.1096).
The conviction and sentence are affirmed.
Carr, C. J., and Btjtzel, Sharpe, Boyles, Reid, North, and Dethmcers, JJ., concurred. | [
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Bushnell, J.
Tbe separate appeals of tbe plaintiffs in four street intersection collision cases are presented in a single record. It contains tbe plead ings, testimony, judgment, et cetera, in only one of these cases which, by stipulation of counsel, are said to be identical with the other three.
About 5 o’clock on the morning of May 7, 1944, plaintiff John Yukich was driving his automobile northerly on Chase road approaching Tireman avenue in the city of Detroit. Chase road, north of the intersection of Tireman, is known as Hubbell avenue. His wife, Helen Yukich, and their friends,1 Edward Borse and Olga Makohon, plaintiffs in the other three cases, were passengers in the Yukich car. A bus operated by defendant city of Detroit (department of street railways), was proceeding westerly on Tireman avenue.
Yukich testified that as he. approached Tireman, which is a through street, he came to a complete stop '.at the south crosswalk and looked east and west. He observed the lights of a vehicle on Tireman at Strathmoor, the first block east of Chase, which he judged had crossed that intersection at a speed of between 20 and 25 miles an hour. Believing that he had plenty of time to cross ahead of this vehicle, Yukich proceeded, and as he reached the center of the intersection he suddenly realized that the approaching vehicle had doubled its speed. He then noticed the headlights of a bus, which was “swerving” into him. It is his contention that the collision occurred when not more than one foot of the rear end of his automobile was within the.Tireman intersection.
The bus driver, James R. Mitchell, testified that the weather was clear, his bus headlights were lighted, but there were no lights inside the bus as he had no passengers on board. He was proceeding to the end of his run at Tireman and Greenfield about 6 or 7 blocks west of Chase road, where he had a few minutes layover. He testified that as he approached Tireman and Hubbell he saw an automobile traveling north on Chase, which did not stop at the intersection but proceeded across at a speed of about 35 miles an hour,- that when he first observed this car it was only 30 or 35 feet away; that he expected it to stop before crossing Tireman, and when it did not he applied his brakes and turned to the right in an attempt to avoid a collision.
The questions of the negligence of defendant’s driver and the contributory negligence of Yukich were submitted to a jury, which rendered a verdict in each of the four cases of no cause of action. After denial of the several motions for new trial on behalf of each plaintiff, they have each appealed from a judgment entered upon the jury’s verdict.
The questions raised here have to'do with claimed errors in the court’s charge to the jury, improper comment by defendant’s counsel upon excluded testimony, and the court’s ruling on plaintiff Yukich’s objection thereto. Appellants also insist that the trial court improperly, on its own motion, submitted special questions to the jury notwithstanding plaintiff’s objections, which were improper both in form and substance, and that the court erred in charging the jury that Yukich’s negligence, if any, was imputable to the occupants of his car.
Plaintiffs argue that the court erred in charging the jury on the question of imputed negligence. The consolidated trial of the four actions was concluded on October 13, 1945. Decision in Bricker v. Green, 313 Mich. 218 (163 A. L. R. 697), was rendered on January 7, 1946. Motions for. new trials in the instant cases were filed on November 2, 1945. Amendments to these motions were allowed on February 8, 1946, and the court’s opinion denying the motions was filed on October 11, 1946. In Bricker v. Green, at page 236, we said:
“The rule of imputed negligence as announced and applied in Lake Shore & Michigan Southern Railroad Co. v. Miller, 25 Mich. 274, and in subsequent cases of like character, is overruled, so far as pending and future cases are concerned.”
The instruction when given was a correct statement of the law at that time. However, following-decision in Bricker v. Green, we have applied the rule there announced to cases subsequently reviewed. See Husted v. McIntosh, 313 Mich. 507; Moore v. Rety, 314 Mich. 52; Ansaldi v. City of Detroit, 314 Mich. 73; Major v. Southwestern Motor Sales, Inc., 314 Mich. 122; Simmons v. Rubin, 314 Mich. 183; Herman v. Metal Office Furniture Co., 317 Mich. 185.
The trial judge charged the jury as follows:
“Now, I will charge you if he (Yukich) did not have his headlights on that as a matter of law he was guilty of negligence because the law provides that a driver who is driving during the hours of darkness must have his headlights on and it is negligence, too, as a matter of law to be on dark streets without your headlights on. If you are not able to say affirmatively that Mr. Yukich did have his headlights on then his case stops right there. He cannot recover because he is guilty as a matter of law of negligence on his own count.”
We do not understand this to be a correct statement of the law, because there must have been some causal connection between the accident and the absence of Yukich’s headlights in order to make such negligence proximate and contributory. See Hanser v. Young, 212 Mich. 508; Diederichs v. Duke, 234 Mich. 136, and authorities therein cited.
During the cross-examination of plaintiff Yukich, the records of the Receiving Hospital were presented. They were properly admitted only in part, but excluded iu the absence of the doctor making the diagnosis insofar as they suggested that Yukich at the time was under the influence of alcohol. Defendant’s counsel, however, argued to the jury that plaintiff was unwilling to have these records in evidence. This argument was deemed prejudicial by plaintiff’s counsel, but the court ruled that it was not. This prejudicial error is unlikely to occur at a new trial.
The trial judge, without" request of counsel for either party, submitted on his own motion and over objection of plaintiff’s counsel four special questions as follows:
“1. Did John Yukich have enough chance to observe the bus from the time he saw it at the far side of Strathmoor until it crossed that street to enable him to determine accurately that it was going 20 to 30 miles per Hour?
“2. Did John Yukich have time, and did he make sufficient observation of the bus when it was about Í00 feet east of Chase road, to determine accurately and trustworthily that it was then going 40 to 60 miles per hour?
“3. Did John Yukich look away from the bus after concluding it was going 20-30 miles per hour at the west side of Strathmoor and then look again at it and see it 100 feet east of him?
“4. Was the rear end of Vukich’s car north of the north curb of Tireman avenue when the bus hit the car?”
The record, however, fails to show whether these questions were ever answered by the jury. If erroneous in substance, it is of small moment whether or not they were answered as prejudicial error resulted from the language therein. One driving a car approaching an intersection is not required to “accurately and trustworthily” determine the speed of an approaching vehicle.
The proper rule is stated in Kerr v. Mayes, 250 Mich. 19:
“Where a driver reaches a road intersection in advance of another and under conditions of relative distances and speeds as would induce in a reasonably prudent man the belief that he can cross in safety* he is not guilty of negligence in proceeding.”
See, also, the elements required as stated in Ayers v. Andary, 301 Mich. 418, 425; Francis v. Rumsey, 303 Mich. 526, 532, et seq., and Waskelis v. Continental Baking Co., 310 Mich. 649, 653.
The language used by the trial judge imposed too great -a burden upon plaintiffs.
Appellants also question the propriety mf the submission of special questions on the court’s own motion. The statute, 3 Comp. Laws 1929, § 14290 (Stat. Ann. §27.1019), provides the manner and form in which special questions shall be submitted. Both it and the applicable rule, Court Buie No. 37, § 6 (1945), are- silent as to the right of the court to submit such questions without the request of either-party.
We accept and adopt the language found in 53 Am. Jur. p. 738:
“Although the submission -of special questions, when requested, is required by statute, the court is not thereby forbidden, in the exercise of its inherent power, from submitting on its own motion special questions which will aid in reaching a proper verdict, its right in this respect being coextensive with its pojver to give instructions generally.”
Because of the improper burden placed upon plaintiffs in stating in the special questions to the jury that Vukich was required to “accurately and trustworthily” determine the speed of the approaching bus, a new trial must be granted as to each plaintiff. Because of this determination it is unnecessary to pass upon the other questions presented by appellants.
The several judgments are vacated and new trials are granted, with costs to appellants.
Carr, C. J., and Butzel, Sharpe, Boyles, Beid, North, and Dethmers, JJ., concurred. | [
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Reid,' J.
The bill of complaint in this cause was filed for specific performance of a verbal agreement to, reconvey lands and for an accounting. Defendant appeals from a decree in favor of plaintiff.
Plaintiff’s wife Elvira Jedlick was made a party defendánt to the amended bill. Her death has been suggested of record.
On August 18, 1937, plaintiff and his wife entered, into a land contract for the purchase of the premises in question (then their residence) for $3,353.98,'of which $703.98 was paid down and 'the balance, $2,650, was to be paid within one year, with interest at 6 per cent., in monthly payments of not less than $40. Plaintiff made monthly payments under the terms of the contract but as the end of the year came near, he found himself unable to make the payment of the balance then unpaid on the contract, or to secure a loan to make the payment required, and was in dagger of losing his interest .in the premises. The defendant,' his mother-in-law, had some property of her own, which was, subject to a lieu! and to some taxes, and it was agreed between plaintiff and his wife and defendant that defendant would take a deed of the premises,in question, borrow $3,500 at the' bank, and mortgage her own premises and the premises in question as security.
It is plaintiff’s claim, denied by defendant, that it was further agreed that defendant was to hold the title to the premises in question as security only and that defendant was to give plaintiff and his wife a land contract by which they were to buy back the premises in question and that plaintiff was to make the payments requisite to redeem the premises from his share of the mortgage debt, $2,401.61, and that'upon plaintiff’s completing the payments required to repay his share of the mortgage debt, defendant was to reconvey the property in question to plaintiff and his wife.
Defendant gave a mortgage for $3,500 covering the premises in question and also the property she had owned prior to the arrangements between the parties. From the proceeds of the mortgage the lien and taxes on the property owned by defendant were paid, and, also, the unpaid balance on the land contract to. plaintiff and wife. The vendor executed a deed of the premises in question to plaintiff and wife in pursuance of land contract. Plaintiff and wife deeded the premises in question to defendant by warranty deed, September 12, 1938.
Plaintiff claims that he made the payments necessary to pay his share of the mortgage debt during the period, September 15, 1938. to April 14, 1944, except for a relatively small balance which he claims' he can make arrangements to pay and thus procure ■the release of the premises in question. Plaintiff fuither claims that during the period above indicated after the giving of the mortgage, he was in actual possession of the premises in question and made valuable repairs- and improvements thereon, including painting the house outside and inside, putting linoleum in the kitchen and bathroom, putting in cupboards, plumbing, new steps and new porch, which had become rotten, besides improvements each year on the yard.
The mortgagee bank still holds the mortgage for the unpaid mortgage debt, $1,640.23. '
The decree appealed from required plaintiff to pay defendant $1,022.81, and required defendant to convey the premises in question to plaintiff by warranty deed.
The real question at issue is whether there existed the agreement to reconvey which plaintiff claims.
The assistant cashier of the mortgagee bank, Tom K. Taylor, testified that "when the mortgage was executed, it was .said by all the parties that plaintiff was to make the payments on the mortgage until he had paid off the amount that he owed, his part of the obligation. The mortgage department clerk of the same bank testified that plaintiff made nearly all the payments but that his wife may have made a few payments. Plaintiff testified to-the making of the agreement on which his claim is founded.
We consider the trial court came to a correct conclusion when it found that the agreement to re-' convey was actually made.
Possession and improvements have been found important matters where specific performance of an oral agreement respecting title of real estate is sought.
Some of the cases decided by this Court which establish the general principle on which plaintiff relies, are: Twiss v. George, 33 Mich. 253; Lamb v. Hinman, 46 Mich. 112; Fairfield v. Barbour, 51 Mich. 57; Welch v. Whelpley, 62 Mich. 15 (4 Am. St. Rep. 810); Taft v. Taft, 73 Mich. 502; Russell v. Russell, 94 Mich. 122; Briggs v. Briggs, 113 Mich. 371; Pike v. Pike, 121 Mich. 170 (80 Am. St. Rep. 488); Ruch v. Ruch, 159 Mich. 231; Howe v. Benedict, 176 Mich. 522; Hogan v. Hogan, 187 Mich. 278.
As Mr. Justice North, speaking for the Court, said in the recent case of Boelter v. Blake, 307 Mich. 447, 451:
“In this jurisdiction there are many decisions to the effect "that although oral agreements to convey .land are void under the statute of frauds above cited (3 Comp. Laws 1929,, § 13413 . [Stat. Ann. § 26.908]), yet under the related section of the statute (3 Comp. Laws 1929, § 13415 [Stat. Ann. § 26.910]), a court of equity has the power to grant specific performance of agreements of which there has been part performance; and such relief should be granted when as between the parties an equitable result will thereby be accomplished. Willard v. Shekell, 236 Mich. 197.”
The 'decree appealed from granted specific performance. That decree is affirmed. Costs to plaintiff.
Carr,- C. J., and Butzel, Bttshnell, Sharpe, Boyles, North, and Dethmers, JJ., concurred. | [
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Fitzgerald, J.
Defendant appeals by leave granted from a 1963 jury conviction of first-degree murder, for which he was sentenced to life imprisonment, and from the trial court’s finding that defendant’s confession, obtained during a Walker hearing, was voluntary.
An armed robbery of a party store in Detroit on February 1, 1963, resulted in the shooting death of its two proprietors by an assailant armed with a sawed-off shotgun. On February 5, defendant was arrested on an unrelated charge of armed robbery. Unable to post $10,000 bail for that offense, he was returned to the Wayne County jail. On February 15, defendant was arraigned for the murder of the party-store proprietors. From February 6 to February 15, defendant was interrogated regarding the murders. During this time, defendant was placed in several lineups, but was not identified as to any complicity in the shooting deaths.
While defendant was in custody for the unrelated robbery charge, detectives William Chubb and Andrew Lovechuk searched defendant’s apartment. No attempt was made to obtain a search warrant, and permission to search the premises was neither sought nor given. The fruits of the search included a sawed-off shotgun barrel, shotgun shells, and a hacksaw. On February 13, while still in custody on the armed robbery charge and prior- to his arraignment on the first-degree murder charge, defendant was confronted with the results of the search. He stated, "Well, I suppose if you have that much, I’ll take you down and show you where the shotgun is”. After locating the shotgun and returning to police headquarters, defendant orally confessed to shooting both proprietors of the party store.
At trial, the shotgun, shotgun barrel, shells, hacksaw, and the confession were admitted into evidence. The question as to the voluntariness of the confession was submitted to the jury. Testimony was obtained from another suspect in the identical murder case, indicating that defendant was subjected to physical abuse prior to the confession. In addition, another inmate testified that defendant’s face was swollen and footmarks were observed on the back of his coat. Defendant himself testified that he was knocked down while wearing handcuffs, kicked in the eye, and was struck on the knee by the barrel of a gun. He further testified that on the day following the alleged beating he was taken to the prison medical facility for examination and later to the Detroit Receiving Hospital for treatment of a bruised eye and cut lip.
On November 7, 1963, defendant was convicted by a jury of first-degree murder. Counsel was appointed but efforts to obtain the trial transcript were not successful until 1967. Defendant’s application for delayed appeal was filed early in 1968, and on August 20, 1968, this Court denied defendant’s application for delayed appeal without prejudice, remanding the cause to the trial court for a Walker hearing to determine the voluntariness of defendant’s confession. At the hearing, the trial judge determined that defendant’s confession of February 13, 1963, was voluntary. This appeal followed.
We are asked to decide whether the trial court erred in determining that defendant’s confession was voluntary. Reviewing courts are concerned with the correctness of the trial court’s determination and are required to examine the entire record and make an independent determination of the ultimate issue of voluntariness. People v Robinson, 386 Mich 551; 194 NW2d 709 (1972); People v Summers, 15 Mich App 346; 166 NW2d 672 (1968). Reversal of the trial court’s finding of fact may occur where such findings are clearly erroneous.
"A finding is 'clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v United States Gypsum Co, 333 US 364, 395; 68 S Ct 525, 542; 92 L Ed 746, 766 (1948); 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 597.
The confession admitted into evidence was given orally while defendant was in custody between the hours of 10:30 p.m. and midnight on the evening of February 13, 1963. Officer Lovechuk testified as follows:
"I asked him if he was in this store and pulled this robbery. I had explained to him prior to that — I had explained to him that this gun was the gun that fired the shell that was found in front of this confectionery store. He said he did go in. He said he held the place up. He was holding up the smaller man, made him empty his pockets, and the bigger man made a lunge at him and he shot him, and the other man ran around the counter and he followed him. And as the man got into the bathroom, he stuck the shotgun up to the back of his head and pulled the trigger. And I wanted to get into details, very fine details with him on it, and he wouldn’t go into detail. He said, 'I shot him, so I shot him’. He said, 'So what else do you want?’ I asked him if he would be willing to go before a prosecutor and make a formal statement on this robbery and murder. He said he would if in our statement we would put that we would only charge him with manslaughter, promise to charge him with manslaughter.”
Review of the testimony obtained at the Walker hearing, together with the circumstances preceding thé confession, convinces us that the trial court erred in determining that defendant’s confession was given voluntarily. Evidence of physical force, the coercive nature of the defendant being confronted with illegally seized evidence, and reliance by the trial court upon matters other than those concerning the voluntariness of defendant’s confession at the Walker hearing lead us to this conclusion.
Interrogation of defendant commenced between 1 and 3 o’clock in the afternoon of February 13, 1963. At least five officers participated in this session, the actual duration of which cannot be determined from the record. Defendant was then removed to the 9th floor of Detroit Police Head quarters at approximately 7 o’clock in the evening for further interrogation. Between 9 and 10 o’clock, defendant was taken by four police officers to uncover the shotgun hidden in a snow bank. Interrogation resumed upon their return to headquarters, and defendant confessed at approximately 10:30. He was returned to jail at midnight.
Taking the testimony most favorable to the prosecution, defendant was interrogated for at least four hours prior to the confession and was subject to possible interrogation for nine hours. During this time five officers questioned the defendant at length. Just prior to his confession, the defendant unexplainably collapsed. James Tomlin-son, also suspected of committing the identical murders, heard "hollering” sounds from an adjacent room as though someone were being beaten. Upon entering the interrogation room, Tomlinson testified, he saw the defendant, his face swollen, lying on the floor. Defendant himself testified that he was physically beaten. The following day, defendant was taken to the Detroit Receiving Hospital and treated for a bruised and swollen eye and cut lip. A medical aid at Wayne County jail testified that defendant had a contusion on his left ankle and complained of eye discomfort as a result of an injury or blow suffered.
Prior to his confession, defendant was confronted with the shotgun barrel, shells, and hacksaw obtained from his apartment in a warrantless search conducted by the police. The hacksaw was found on defendant’s bed, while the barrel and shells were discovered inside a hole in the back porch wall. The owner of the apartment lived on the first floor and gave the officers permission to search a vacant upstairs apartment. After a fruitless search, the officers knocked upon defendant’s door and a girl answered. They entered, asked the location of defendant’s room, and discovered a hacksaw on his bed. The hacksaw was clearly the product of an illegal search and seizure and was therefore inadmissible at trial. The prosecution failed to show that the occupant of defendant’s apartment consented to the search. Consent must be proved by clear and positive testimony and must be shown to have been made without duress or coercion, actual or implied. People v Kaigler, 368 Mich 281; 118 NW2d 406 (1962). Further, a joint occupant of an apartment may not consent to a search of another occupant’s private room. People v Flowers, 23 Mich App 523; 179 NW2d 56 (1970).
The shotgun barrel and shells were discovered in a wall of the upstairs rear porch, a common area accessible to all residents. However, the consent to search given by the landlord was restricted to the upstairs vacant apartment and the attic. Consent to search does not permit the search of other areas not particularly specified.
"It is elementary that the obtaining of a search warrant may be waived by an individual and he may give his consent to search and seizure; but such waiver or consent must be proved by clear and positive testimony and there must be no duress or coercion, actual or implied, and the prosecutor must show a consent that is unequivocal and speciSc * * * .” People v Kaigler, supra, at 294; 118 NW2d 413. (Emphasis in original.)
In the instant case, the police officers exceeded the limits specified in the consent granted them by conducting a search of the upstairs rear porch.
The use of the illegally seized evidence undoubtedly had a coercive influence on defendant’s decision to confess and consequently it must be consid ered involuntarily made. Further, the shotgun, barrel, shells, hacksaw, and the confession itself should have been ruled inadmissible. However, since no objection was made at trial, the standard of review set forth in People v Bukoski, 41 Mich App 498, 501; 200 NW2d 373, 375 (1972), is applicable:
"Where a defendant raises a constitutional question for the first time on appeal, we must ask two questions: (1) was the evidence decisive, and (2) was the evidence erroneously admitted into evidence. People v Gunn, 34 Mich App 106; 190 NW2d 793 (1971).”
The evidence sought to be excluded was decisive. The police firearms and ballistics expert connected the gun, the sawed-off barrel, the hacksaw, and the shells with each other and with a shotgun cartridge and shell wadding found at the scene of the crime. The prosecution cites no authority yet contends the searches were conducted with consent. Our review of the record discloses that consent from the occupant of defendant’s apartment was wholly lacking. The consent given by the landlord was limited to two specific areas, neither of which was the location of the discovered evidence.
Finally, our review of the lower court opinion clearly indicates that the trial judge did not confine his consideration to the narrow issue of the voluntariness of the defendant’s alleged confession at the Walker hearing. His concern centered upon defendant’s actual guilt rather than the voluntariness of the confession. Taking the evidence adduced at the Walker hearing alone, it is our independent judgment that defendant’s confession was not given voluntarily.
It was reversible error to admit defendant’s involuntary confession at trial. People v Summers, supra. Review of the Walker hearing evinces a firm conviction that defendant’s confession was given involuntarily and a new trial should be granted. None of the evidence illegally obtained should be admitted.
Reversed and remanded for a new trial.
All concurred.
MCLA 750.316; MSA 28.548.
People v Walker, 374 Mich 331; 132 NW2d 87 (1965).
MCLA 750.529; MSA 28.797. | [
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Walsh, J.
Plaintiff’s decedent, a press operator at Molloy Manufacturing, was fatally injured when a piece of fractured metal shot out from an unguarded press, piercing his chest. Plaintiff widow sued defendant workmen’s compensation insurance carrier as a third-party tortfeasor. MCLA 418.827; MSA 17.237(827). She alleged that defendant’s negligent safety inspection proximately caused her husband’s death.
Plaintiff claims the trial court erred in directing a verdict of no cause for action in favor of defendant at the close of plaintiff’s case. Plaintiff’s case consisted of defendant’s safety consultant’s uncontradicted testimony and certain excluded expert testimony, preserved on a separate record. Mr. Viening, the safety consultant, testified that he first visited Molloy Manufacturing on October 10, 1968. He observed a press where a workman had been killed in a September accident similar to the decedent’s. On that occasion, he recommended that steel barrier guards be installed on all similar presses to prevent ejection of projectiles. Molloy’s supervisory personnel rejected that proposal, opining that steel barrier guards might create safety hazards by obstructing vision. They indicated that their engineering department would look into development of a plastic barrier guard. Mr. Viening’s suggestions were later reduced to writing and communicated via his home office to the employer. The written recommendations, received November 5, 1968, suggested strengthening quality-control procedures, intensifying training for new and transferred employees, and installing barrier guards. The letter further provided that Molloy had agreed to complete one of three safeguarding methods. Mr. Viening returned to the plant in November, 1968, for unrelated purposes. On December 10, 1968, prior to placement of barrier guards, decedent’s fatal accident occurred.
Plaintiff relies on the rule that one who undertakes a gratuitous act must conform to a standard of due care or face liability for the consequences of negligence. Hart v Ludwig, 347 Mich 559, 564; 79 NW2d 895, 898 (1956). Specifically, an insurance carrier (prior to October 30, 1972) does not share the employer’s immunity from suit, but must conform to a standard of due care in inspecting the employer’s premises. Ray v Transamerica Insurance Co, 10 Mich App 55; 158 NW2d 786 (1968), leave to appeal denied 381 Mich 766 (1968); Banner v Travelers Insurance Co, 31 Mich App 608; 188 NW2d 51 (1971); Megge v Lumbermens Mutual Casualty Co, 45 Mich App 119; 206 NW2d 245 (1973); Ray v Transamerica Insurance Co, 46 Mich App 647; 208 NW2d 610 (1973); Ruth v Bituminous Casualty Corp, 427 F2d 290 (CA 6, 1970), refusing to apply Kotarski v Aetna Casualty & Surety Co, 244 F Supp 547 (ED Mich 1965), aff'd 372 F2d 95 (CA 6, 1967). In adopting this view, Michigan joins a loose majority of jurisdictions which find no statutory support for a grant of immunity to the insurer. We specifically decline to disaffirm this view, despite the criticism Ray, supra, engendered.
While we recognize the insurer’s nonimmune status, we nonetheless hold that the trial court properly directed the verdict for defendant. The standard for review of entry of directed verdicts requires us to construe the evidence in favor of the nonmovant. When this Court reviews the grant of a directed verdict, the test is whether, giving plaintiffs proofs their strongest probative force, the evidence was sufficient to justify submission to the trier of fact. Parker v Associates Discount Corp, 44 Mich App 302; 205 NW2d 300 (1973). Evidence adduced at trial must be sufficient to create jury questions on the appropriate legal issues. The governing law can be found at 2 Restatement of Torts 2d, § 324A, p 142, which provides:
"One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if:
"(a) his failure to exercise reasonable care increases the risk of harm, or
"(b) he has undertaken to perform a duty owed by the other to the third person, or
"(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”
Assuming an undertaking by defendant, no evidence showed that defendant increased the risk of harm, undertook performance of the employer’s obligation of providing its employees a safe place to work, or defendant’s conduct induced reliance of the employer or employee on the insurer. Testimony shows, to the contrary, that the employer rejected the insurer’s suggestions, neither relinquishing any control to the insurer, nor relying on defendant’s recommendation.
The instant case is factually distinct from Ray, supra, Megge, supra, and Ruth, supra, inter alia. For example, in Megge, supra, jury questions clearly arose from conflicting evidence. In that case, one witness testified that thorough inspections occurred on a monthly basis, while another witness testified that cursory inspections occurred annually. The plant manager testified further that he relied on these inspections. In Ruth, supra, the insurer had, since 1960, on a total of 16 or 17 occasions, regularly inspected a plant lacking any safety program or safety engineering operation. Again, in Ray, supra, an insurance engineer had regularly visited the employer who followed some recommendations while rejecting others. The Court in Ray expressly held that reliance is a relevant consideration in determining the extent of the undertaking. Even if we conclude that the insurer’s actions amounted to assistance in the employer’s duty to provide a safe place to work, here, distinct from Ray, no evidence shows that the employer relied on that undertaking. The trial court correctly directed a verdict for defendant.
Next, plaintiff asserts that the trial court abused its discretion in excluding the testimony of an expert not knowledgeable in Michigan safety engineering or consulting operations.
The Maryland safety expert’s testimony relates to legal conclusions about the duty of Michigan safety consultants. We refuse plaintiffs invitation to establish a national standard for safety engineers or consultants like that for medical specialists, set forth in Naccarato v Grob, 384 Mich 248; 180 NW2d 788 (1970). The state of the art cannot at this time be logically analogized to medical specialties.
Affirmed. Costs to defendants.
All concurred.
MCLA 418.827; MSA 17.237(827), after amendment by 1972 PA 285, effective 10-30-72, now provides:
"(8) The furnishing of, or failure to furnish, safety inspections or safety advisory services incident to providing workmen’s compensation insurance, or pursuant to a contract providing for safety inspections or safety advisory services between the employer and a self-insurance service organization or a union shall not subject the insurer, self-insured service organization or the accident fund, or their agents or employees, or the union, its members or the members of its safety committee, to third party liability for damages for injury, death or loss resulting therefrom.”
The cause of action having accrued in 1968, this amendment is inapplicable to the present proceedings. The governing statute at the time the cause accrued, MCLA 413.15; MSA 17.189, provides, in part:
"Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other them a natural person in the same employ or the employer to pay damages in respect thereof, * * * such injured employee or his dependents or their personal representative may also proceed to enforce the liability of such third party.”
We read with interest Glendening’s commentary, "Torts” 15 Wayne L Rev 493, 502 (1968). Ray v Transamerica, 10 Mich App 55; 158 NW2d 786 (1968), is faulted for begging the question, i.e., framing the issue in terms of the employee’s "common-law right to sue” assumes the existence of that right. We disagree. Larson, in his work, explains that third party actions help implement two distinct social policies. The values sought to be achieved are first: to make the injured worker whole, and, once accomplished, to place the ultimate loss on the wrongdoer. He notes further that so long as antiquated relief schemes are not updated by legislatures, pressures to find third party tortfeasors can only increase. 2 Larson, Workmen’s Compensa tion § 72.10 if, p 174 ff. Given that context, we think slight departures from absolute fidelity to deductive principles of logic are quite forgivable sins.
Especially as this prong of the rule is explained in Ray v Transamerica Insurance Co, 46 Mich App 647; 208 NW2d 610 (1973). See infra. | [
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Lesinski, C. J.
Defendant was convicted by a bench trial of assault with intent to do great bodily harm less than the crime of murder. MCLA 750.84; MSA 28.279. He was sentenced to six to ten years and appeals as of right.
The only substantial issue raised on appeal presents a search and seizure question which arose in particularly unconventional circumstances.
When defendant was arrested for assaulting his wife in their trailer park home, he was without footwear. Sheriff’s officers had obtained a valid warrant to search defendant’s mobile home and seized certain evidence, overlooking defendant’s boots. Defendant repeatedly requested officers at the jail to bring him his boots, as he wanted to wear them to the preliminary examination.
An officer asked the defendant where the boots were and he replied that they were at his mobile home. The officer called the owner of the trailer park, told her that the defendant wanted his boots, and asked her if she would remove them from defendant’s home and bring them to the Sheriff’s Department.
The trailer park owner located the boots at the defendant’s home, and noticing a "big gob” of hair wedged between the heel and the sole of one of the boots, took them to the courthouse instead of the Sheriff’s Department. The officer at the courthouse also observed the hair and noticed what appeared to be bloodstains on the boots. He thereupon seized the boots as evidence. No warrant at this time was obtained.
The trial court denied the defendant’s motion to suppress the boots and they were admitted into evidence. Two of defendant’s daughters, who witnessed the assault, testified that the defendant had repeatedly "stomped” on his wife, and identified the boots as those which the defendant was wearing at the time of the assault. Expert testimony established that the blood on the boots was human blood and the hair was "similar” to that of the victim.
Defendant contends on appeal that the boots were improperly admitted into evidence. Even though no warrant was obtained to seize the boots, to uphold the defendant’s argument would be inconsistent with the provisions of US Const, Am IV, and Const 1963, art 1, § 11 of the Michigan Constitution, as interpreted by decisions of the United States and Michigan Supreme Courts.
The initial query in any search and seizure problem is whether or not there was a search. The controlling test determinative of this quéstion is whether the police activity has violated the defendant’s reasonable expectation of privacy. Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967). A defendant has a reasonable expectation of privacy in regard to the shoes he is wearing even though in custody, People v Trudeau, 385 Mich 276; 187 NW2d 890 (1971), and in regard to shoes lying in his closet, People v Eddington, 387 Mich 551; 198 NW2d 297 (1972).
However, we feel there is no reasonable expectation to privacy concerning a pair of boots which a defendant requests the police to bring to him. The defendant’s act of requesting the police to obtain the boots clearly indicates a lack of concern over protecting any privacy in regard to the boots. We hold that the action of the police in requesting the trailer park owner to bring the boots to the station, and her subsequent delivery of the boots to an officer at the courthouse, did not constitute a search.
Given that there is no police activity amounting to a search, or even if the activity were to be considered a search, the next point of inquiry is whether or not the "seizure” without a warrant was reasonable under the circumstances.
As stated in Harris v United States, 390 US 234, 236; 88 S Ct 992, 993; 19 L Ed 2d 1067, 1069 (1968):
"It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” (Emphasis supplied.)
The Court in Coolidge v New Hampshire, 403 US 443, 466; 91 S Ct 2022, 2038; 29 L Ed 2d 564, 583 (1971), elaborated upon the plain view doctrine:
"[T]he 'plain view’ doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. Harris v United States, 390 US 234 [88 S Ct 992; 19 L Ed 2d 1067 (1968)]; Frazier v Cupp, 394 US 731 [89 S Ct 1420; 22 L Ed 2d 684(1969)]; Ker v California, 374 US [23] at 43 [83 S Ct 1623 at 1635; 10 L Ed 2d 726 at 743 (1963)]; Cf Lewis v United States, 385 US 206 [87 S Ct 424; 17 L Ed 2d 312 (1966)].
"What the 'plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure. ” (Emphasis supplied.)
In the instant case, the seizing officer clearly had a "right to be in the position to have that view”, Harris, supra; and clearly had a "legitimate reason for being present unconnected with a search directed against the accused,” Coolidge, supra. The boots presented to him by a third party as a direct result of the request of the accused were in his plain view. The boots were incriminating upon their face. The officer to whom the boots were delivered was familiar with the details of the crime. Upon observing the hair and the appearance of blood obvious on the face of the boots, the officer was justified in seizing the incriminating evidence observed in his plain view.
Upholding the seizure without a warrant in this case does not conflict with the decisions of the Michigan Supreme Court in Trudeau, supra, and Eddington, supra. The rationale of the Trudeau case for not applying the plain view doctrine to a seizure of shoes worn by an in-custody defendant was that there was no probable cause to seize the shoes, only a mere suspicion. The seizure of the boots in this case was supported by sufficient probable cause. The officer who took the boots into police custody was the investigating officer at the scene of the crime and was thus aware that the boots belonged to a prisoner charged with assault of his wife and was aware of the circumstances of the assault. Upon seeing hair wedged into a boot and the appearance of bloodstains, there was probable cause for a man of reasonable caution to believe that the boots were connected to the crime.
The Eddington case, supra, held that seizure of shoes taken from the defendant’s closet without a warrant was justified if reasonable in light of all the circumstances. In this case, the seizure of the hoots was reasonable under this test. The police had already obtained a warrant to search the entire mobile home. The defendant implicitly consented to observation of the boots and waived his reasonable expectation of privacy by requesting the jail officers to bring him his boots. Once the officer observed in plain view the incriminating evidence clear from the face of the boots, he had probable cause to seize the boots and under the plain view doctrine it was reasonable for him to seize the boots as evidence.
Defendant’s contention as to the sufficiency of the evidence is without merit. As the trial court aptly observed:
"This court finds that the credible evidence and proof by the people is not only beyond a reasonable doubt, but is indeed overwhelming that the defendant specifically intended to and did commit the crime in question.”
Affirmed.
All concurred. | [
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Bronson, P. J.
This appeal involves a dispute between the defendants, Chrysler Corporation and Arthur B. Myr Sheet Metal Industries, Inc., concerning the effect of a clause in a contract between them. The plaintiffs are not directly involved. Their claim against the defendants awaits the determination of this appeal.
Arthur B. Myr Sheet Metal Industries, Inc. (hereinafter "A. B. Myr”) was performing a construction contract for Chrysler. This contract included an indemnification clause running in favor of Chrysler. Two related issues arise as a result of this indemnification clause:
1. Whether MCLA 691.991; MSA 26.1146[1] affects indemnification clauses entered into prior to the effective date of the act when the indemnitee’s act of negligence occurred after the effective date of the act, and;
2. Whether an interpretation that it does would violate the contract clause of the Federal (Art I, § 10) and State Constitutions (Const 1963, art 1, § 10).
The trial court granted A. B. Myr’s motion for summary judgment, finding that MCLA 691.991; MSA 26.1146(1) made such indemnification clauses in construction contracts void and unenforceable as against public policy. We granted leave to consider the question which was specifically unanswered in Blazic v Ford Motor Co, 15 Mich App 377, 381; 166 NW2d 636, 638 (1968).
The contract between A. B. Myr and Chrysler was signed early in 1966. The indemnity invalidating act was effective on March 10, 1967. After this effective date, on March 17, 1967, the plaintiff was injured.
Our analysis begins with the statute, which reads:
’A covenant, promise, agreement or understanding in, or in connection with or collateral to, a contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure, appurtenance and appliance, including moving, demolition and excavating connected therewith, purporting to indemnify the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee or indemnitee, his agents or employees, is against public policy and is void and unenforceable.” (Emphasis supplied.) MCLA 691.991; MSA 26.1146(1).
In City of Lansing v Lansing Twp, 356 Mich 641, 648; 97 NW2d 804, 808 (1959), the Michigan Supreme Court explained that:
"[T]he cardinal rule of statutory construction is to ascertain and give effect to the intention of the Legislature. If the language of a statutory provision is unambiguous, the intent must be determined accordingly.”
The Court further quoted from American Jurisprudence to the effect that a plain and unambiguous statute is to be applied and not interpreted. This we do. The language of the statute is clear. It applies to all existing contracts. The statute did not apply in Blazic, supra, because the indemnitee’s act of negligence occurred before the effective date. Thus in Blazic the indemnification agreement was no longer inchoate on the effective date of the new act.
Our analysis of the first question requires that we consider whether this application improperly impairs the obligation of existing contracts. Relying on authority of the United States Supreme Court this Court in Michigan Transportation Co v Secretary of State, 41 Mich App 654; 201 NW2d 83 (1972), has recently concluded that rights under existing contracts are not absolute. Where there is a valid exercise of the state’s police power which only incidentally affects the existing contract then the state enactment is not prohibited.
Chrysler does not challenge the validity of the new statute. Neither has Chrysler shown that the statute does not rest on a reasonable basis, but is essentially arbitrary. City of Lansing, supra, at 650-651; 97 NW2d 809-810. Clearly the indemnity clause presently under consideration was only an incidental aspect of the main construction contract between Chrysler and A. B. Myr. Consequently, since the impact of the statute was only incidental, leaving the bulk of the construction contract unimpaired, and presumably the state interest in adopting the statute was significant, we can only conclude that the contract clause has not been violated.
Affirmed. No costs, a public question being involved.
All concurred.
See: 50 Am Jur, Statutes, § 225, p 207. | [
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Bronson, J.
We are called upon to determine which creditor has greater rights to a certain fund. Plaintiff-appellee, National Bank of Detroit (hereinafter NBD), claims priority as a secured creditor pursuant to Article Nine of the Uniform Commercial Code. Defendant Westinghouse Electric Corporation claims priority pursuant to MCLA 570.151 et seq.; MSA 26.331 et seq. The issue for decision is:
Whether an unsecured creditor claiming under MCLA 570.151, which imposes a trust fund for materialmen and laborers, takes priority over a prior perfected security interest in all present and after-acquired contract rights, accounts, general intangibles, and chattel paper.
The record reveals that on August 28, 1970, faulty plumbing, installed by defendant Eames and Brown in a commercial building in Southfield, Michigan, caused water damage to electrical work in the building. This plumbing work was insured by defendant Aetna Life and Casualty Company. Aetna undertook to pay all claims for the water damage and accordingly hired Continental Electric Company to oversee the repairs. Continental had already signed a security agreement covering "present and future accounts, contract rights, chattel paper and general intangibles” with NBD. Continental then hired Westinghouse to supply labor and materials for the repairs. The work was completed and Westinghouse claimed $54,420.26 for labor and materials. Continental had become insolvent in the interim and prior to payment NBD exercised its rights under the security agreement. NBD gave notice to Aetna, Continental, and Westinghouse that payment should be made directly to NBD. Instead, Aetna paid the money directly to Westinghouse and received a hold harmless agreement in return. NBD brought action for this fund and was awarded a judgment on September 20, 1972 pursuant to GCR 1963, 117.2(3). Defendants appeal of right.
Westinghouse claims priority exclusively under the building contract fund act (hereinafter the "Act”). They argue that NBD never had any rights to this money because the insolvent contractor, Continental, never had any interest in the fund. They argue that Continental's only interest was a duty to hold and then pay the fund to its laborers and materialmen, in this case Westinghouse.
NBD’s position with regard to the fund is threefold. NBD first argues that the Act only applies to funds actually paid to the contractor. NBD concludes that its interest had attached irrevocably before the contractor had been paid and consequently no rights could ever accrue in favor of Westinghouse under the Act. NBD asserts secondly that Westinghouse has voluntarily advanced unsecured credit to Continental by failure to obtain a mechanic’s lien as provided by MCLA 570.1; MSA 26.281. NBD’s third argument is similar. NBD correctly asserts that Westinghouse could have partially protected itself by perfecting a security interest of its own using the provisions of Article Nine. Westinghouse would have prevailed (with respect to the materials cost) had they obtained such an interest either by retaining possession or perfecting a purchase money security interest in the materials provided.
The arguments of NBD are persuasive. NBD is clearly a secured creditor, having complied with all the requirements of Article Nine. Westinghouse can prevail only if the Act gives it a status superior to the secured position of NBD. The Act does not so provide for three reasons.
First, the Act is a penal provision making violation a felony. The Act is not intended to determine priority between conflicting creditors. The Act’s intent is to provide that when funds come into the hands of a contractor the funds shall be properly applied. Secondly, NBD’s security interest attached and was perfected by filing (which gave Westinghouse constructive notice of the interest) from the instant the contract between Continental and Westinghouse was signed. Thus, any possible priority status claimed by Westinghouse would a fortiori have to arise after the NBD interest was perfected. Westinghouse could also have requested a subordination agreement from NBD. Finally, the Act does not create a lien with Article Nine priority as contemplated by MCLA 440.9310; MSA 19.9310.
Westinghouse, having failed to secure a priority by filing a mechanic’s lien or perfecting a security interest, must stand in the position of an unsecured creditor. The building contract fund act, for the reasons given above, accords them no priority over NBD, a prior secured creditor under Article Nine of the Uniform Commercial Code.
Affirmed. Costs to plaintiff.
All concurred.
MCLA 440.9101 et seq.; MSA 19.9101 et seq.
This act is often erroneously referred to as the builders trust fund act. The act is actually penal in nature as evidenced by the preamble, which reads:
"AN ACT to protect the people of the state-from imposition and fraud in the building construction industry and to provide penalties for the violation of this act.” (Emphasis supplied.)
"Sec. 1. In the building construction industry, the building contract fund paid by any person to a contractor, or by such person or contractor to a subcontractor, shall be considered by this act to be a trust fund, for the benefit of the person making the payment, contractors, laborers, subcontractors or materialmen, and the contractor or subcontractor shall be considered the trustee of all funds so paid to him for building construction purposes.
"Sec. 2. Any contractor or subcontractor engaged in the building construction business, who, with intent to defraud, shall retain or use the proceeds or any part therefor [thereof], of any payment made to him, for any other purpose than to first pay laborers, subcontractors and materialmen, engaged by him to perform labor or furnish material for the specific improvement, shall be guilty of [a] felony in appropriating such funds to his own use while any amount for which he may be liable or become liable under the terms of his contract for such labor or material remains unpaid, and may be prosecuted upon the complaint of any persons so defrauded, and, upon conviction, shall be punished by a fine of not less than 100 dollars or more than 5,000 dollars and/or not less than 6 months nor more than 3 years imprisonment in a state prison at the discretion of the court.
"Sec. 3. The appropriation by a contractor, or any subcontractor, of any moneys paid to him for building operations before the payment by him of all moneys due or so to become due laborers, subcontractors, materialmen or others entitled to payment, shall be evidence of intent to defraud.” (Emphasis supplied.)
See generally: MCLA 440.9102; MSA 19.9102, MCLA 440.9203; MSA 19.9203, and MCLA 440.9204; MSA 19.9204.
See: MCLA 440.9305; MSA 19.9305, and White and Summers, Uniform Commercial Code, § 23-10, pp 814-818.
See: MCLA 440.9107; MSA 19.9107, defining a purchase money security interest. MCLA 440.9303; MSA 19.9303, regarding perfection. MCLA 440.9302(1); MSA 19.9302(1), which requires filing, and MCLA 440.9312(4); MSA Í9.9312(4), regarding priority. Westinghouse had 21 days after placing the materials in the hands of Continental in which to file and perfect its security interest. See: MCLA 440.9304(5); MSA 19.9304(5), and MCLA 440.9304(6); MSA 19.9304(6).
It should be emphasized that the purchase money security interest available to Westinghouse under Article Nine applies only to the materials and not the labor supplied.
The parties agree that NBD has properly perfected a security interest in all accounts, contract rights, general intangibles and chattel paper. See: MCLA 440.9303; MSA 19.9303, MCLA 440.9302(lXe); MSA 19.9302(l)(e). Westinghouse claims that the fund in question never came within the above categories; however, the contract between Continental and Westinghouse was a "contract right” before performance and an "account” after performance. See: MCLA 440.9105(c); MSA 19.9105(c), and MCLA 440.9106; MSA 19.9106.
We are not unaware of the common-law concept raised by Westinghouse that "an assignee cannot have greater rights than his assignor”. The parties refer us to Gilmore, The Assignee of Contract Rights and His Precarious Security, 74 Yale LJ 217 (1964). Professor Gilmore was considering “[t]he assignment of rights to the payment of money to be earned by performance under contracts which are, wholly or in part, executory at the time the assignment is made”. Gilmore, supra, at 221. That is not our case. At the time of the assignment to NBD there was no contract in existence between Continental and Westinghouse.
Westinghouse contracted with Continental with constructive knowledge of NBD’s prior security interest. This constructive knowledge resulted from NBD’s proper filing of their security interest. The official comment to section 9-103 states the policy consideration (for filing) which is "to allow subsequent creditors [Westinghouse] of the debtor-assignor [Continental] to determine the true status of his affairs”. (MCLA 440.9103; MSA 19,9103, comment 2.)
The priority rights of Westinghouse must be considered with regard to this knowledge. This knowledge is generally fatal to a later claim which is not based on a superior rule of priority. See: MCLA 440.9301(l)(d); MSA 19.9301(l)(d) and Comment, Contract Rights as Commercial Security: Present and Future Intangibles, 67 Yale LJ 847 (1958); Coogan, Intangibles as Collateral Under the Uniform Commercial Code, 77 Harv L Rev 997 (19&4) for pre- and post-code effects of a subsequent creditor’s knowledge of an existing assignment.
MCLA 440.1102(3); MSA 19.1102(3), MCLA 440.9201; MSA 19.9201, MCLA 440.9316; MSA 19.9316.
MCLA 440.9102(2); MSA 19.9102(2), MCLA 440.9104(c); MSA 19.9104(c), and MCLA 440.9310; MSA 19.9310 provide that certain liens created by operation of law have priority over perfected security interests. The building contract fund act is not such a lien. This act, if indeed it creates a lien (a question we need not decide), creates a lien on money. MCLA 440.9310, supra, specifically refers to "a lien upon goods”. The definition of goods (MCLA 440.9105 [1] [f]; MSA 19.9105 [1] — [f]) expressly excludes money. | [
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Per Curiam.
On October 15, 1966, plaintiffs sustained personal injuries in an automobile accident. At the time of the accident they were insured against injuries sustained by virtue of uninsured motorist coverage in their own insurance policy. This policy afforded benefits not to exceed $10,000 for each of the two plaintiffs.
The plaintiffs instituted arbitration proceedings against their carrier pursuant to the provisions of the policy. The parties subsequently entered into a voluntary settlement for less than policy limits and discontinued the arbitration proceedings.
On August 17, 1970, the plaintiffs obtained a judgment against Mr. and Mrs. Henry Ford, the uninsured tortfeasors, for amounts in excess of the policy limits under the uninsured motorist sections of their own policies. Plaintiffs then attempted to satisfy this judgment against the Motor Vehicle Accident Claims Fund claiming an amount equal to the difference between the voluntary settlement they reached with their carrier and the amount of their judgments. The fund paid only the difference between the judgment and the policy limits. Procedurally, the Court of Claims decided in favor of the plaintiffs and defendant fund appealed.
The issue for decision is:
Whether the Motor Vehicle Accident Claims Fund is liable for the difference between a voluntary settlement and policy limits as negotiated without the fund as a party and where the plaintiffs subsequently obtained a judgment against the uninsured tortfeasor in excess of the policy limits.
This very issue has recently been considered by another panel of our Court. Brunner v Secretary of State, 48 Mich App 535; 210 NW2d 786 (1973). In Brunner the Court considered our prior decision dealing with a settlement effected after contested proceedings. Green is distinguishable from the instant case, which arose from a voluntary settlement. In Brunner it was reasoned that:
"Although there is no indication in the case at bar of fraud or collusion between plaintiff and his insurer, extension of the Green holding to the present facts would place the fund at the mercy of future private settlements which are negotiated in the absence of the Secretary of State, over which he has no power of approval, and which — unlike Green —are not concluded by an independent, impartial arbitrator whose presence would preclude any inference of impropriety.” (Brunner, supra, at 541-542; 210 NW2d at 790.)
We find the reasoning and result of Brunner persuasive. The fund, where there has been only a voluntary settlement, is only liable for the difference between the policy limit and the subsequent judgment against the uninsured tortfeasor. The judgment of the Court of Claims is reversed and the case is remanded for proceedings not inconsistent with this opinion.
Reversed and remanded.
MCLA 257.1101 et seq.; MSA 9.2801 etseq.
Green v Blicharski, 32 Mich App 15; 118 NW2d 113 (1971). | [
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Bashara, J.
Plaintiff filed a complaint for divorce on September 9, 1969, alleging that defendant was guilty of extreme and repeated cruelty. A series of motions, requests, and hearings initiated by defendant resulted in trial being delayed until April 22, 1971. Defendant, during these delays, was also experiencing difficulties in securing his release from commitment to Kalamazoo State Hospital and in retaining an attorney to adequately represent him. At the commencement of trial on April 22, 1971, defendant requested a second adjournment in order to obtain legal counsel. The court adjourned trial on the divorce until July 30, 1971, but allowed testimony to be taken regarding various property matters.
On July 30, 1971, defendant was present in court and represented by attorney Peter Hirsch acting as his guardian ad litem. Mr. Hirsch requested a further adjournment at that time, again for the purpose of giving defendant time to secure legal counsel for the divorce. The motion was denied and the parties proceeded to testify as to each other’s guilt in the marriage. The court did not enter orders or findings subsequent to the July 1971 hearing, but did entertain motions by each of the parties. The defendant’s motion of November 1971 to reopen proofs and plaintiff’s motion for leave to amend her complaint to "no-fault” grounds were both granted in early 1972.
The court set March 1, 1972, as the date for further proceedings on the divorce question. Defendant was then represented by attorney Robert Pangle, who at the start of the proceeding requested another adjournment. Mr. Pangle advised the court that another member of his law firm was retained by defendant and the defendant was un happy that Mr. Pangle would be representing him. When that request was denied, plaintiff proceeded with her proofs as to the breakdown of the marriage, but defendant refused to participate in the trial in any way. The judgment of divorce was entered on March 20, 1972, and it is from that order that defendant now appeals.
Defendant first asserts error in the trial court’s refusal to grant him continuances on July 30, 1971, and March 1, 1972, as previously stated. The defendant’s request for a continuance on July 30, 1971, was made so that he could retain an attorney. Defendant, however, was continuously advised that he should retain an attorney for the pending divorce proceedings. He refused the offers of the Legal Aid Society and insisted that he had retained an attorney, Mr. Robert Siegrist, for both a habeas corpus matter and the divorce. It appears Mr. Siegrist did agree to pursue the habeas corpus action, but indicated he had no intention of representing defendant in the divorce. There was no reason on July 30, 1971, for the court to believe that defendant would obtain counsel in the future. Defendant had already dismissed one fine attorney, Mr. James Dunn, refused to benefit from the Legal Aid Society’s attorneys, and ignored the trial court’s previous warnings to obtain counsel.
GCR 1963, 503.1 states that:
"It is the policy of this rule to encourage the diligent preparation and trial of cases. Continuance for any cause shall not be granted unless , a showing is made and the court finds that the grounds for continuance do not arise out of the fault or negligence of the moving party and the court finds that substantial justice more nearly will be obtained.”
The question of whether to grant or deny a continuance is within the trial court’s discretion. Mitchell v Bousson, 29 Mich App 222, 224; 185 NW2d 52, 53 (1970). In Mitchell the court denied an adjournment and found that substantial justice would be more nearly obtained by going forward rather than continuing the cause. The Court there stated:
"In our responsibility to assure that defendant in this case has representation, we may not overlook the correlative right of the plaintiff to his timely day in court.” 29 Mich App 222, 225; 185 NW2d 52, 53.
It was this type of concern for the rights of both parties that led the trial court in the case before us to deny the continuance. The court recognized that the divorce action was nearly two years old and defendant’s neglect would cause trial to be delayed even longer. The fact that defendant and his guardian ad litem were present and able to participate in the proceeding is also to be considered in reviewing the trial court’s decision. The applicable standard for review of a trial judge’s alleged abuse of discretion was stated in Spalding v Spalding 355 Mich 382; 94 NW2d 810 (1959). The Court in Spalding, pp 384-385; 94 NW2d at 811-812, stated:
"We have held repeatedly, and we again hold, that we will not interfere with the discretion of the trial chancellor in these cases unless a clear abuse thereof is manifest in the result reached below. The kind of determination before us requires a weighing of human and economic factors of the utmost complexity, a weighing that can best be accomplished at the local level, not in these chambers. * * * In order to have an 'abuse’ in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias. So tested, we perceive no error in the proceedings below nor in the determination made.”
Applying this standard to the court’s decision to deny a continuance on July 30, 1971, we do not find his choice was "so palpably and grossly violative of fact and logic” that it would constitute an abuse of discretion. Spalding, supra, at 385; 94 NW2d at 812.
The requested continuance on March 1, 1972, was due to defendant’s unwillingness to be represented by Mr. Pangle. The court referred to prior proceedings in this cause and to defendant’s relationships with attorneys in denying the continuance. Using the Spalding standard, we again find that the court made a logical and reasoned choice not to continue the case until November of 1972, when it would first be free to hear testimony.
Defendant next avers that the trial court erred in allowing plaintiff to amend her complaint to come within the "no-fault” divorce act which provides as follows:
"Section 3. The provisions of this amendatory act shall apply to all actions for divorce or separate maintenance commenced on or after the effective date of this act. An action for divorce or separate maintenance pending at the effective date of this act shall be consummated in accordance with and subject to the law in force at the time the action was commenced except that the provisions of this amendatory act shall be made applicable to a pending action for divorce or separate maintenance if either party amends his respective complaint or counterclaim at any time before trial to allege the new grounds for divorce or separate maintenance by use of the statutory language prescribed in this amendatory act.”
The motion to amend was properly filed after the act’s effective date of January 1, 1972, but subsequent to the start of trial in 1971. It is apparent that the Legislature sought to facilitate the transition to the new act by allowing amendments before trial as of right. The discretion of a trial judge, however, to grant leave to amend pleadings in all other situations pursuant to GCR 1963, 118.1 has not been impaired. Indeed, the Michigan General Court Rules are part of the "law in force” at the time this action was commenced. The issue then, is whether the trial court abused its discretion in allowing the amendment pursuant to GCR 1963, 118.1. In Grove v Story Oldsmobile, Inc, 31 Mich App 613, 617; 187 NW2d 923, 926 (1971), this Court stated that "surprise and disadvantage to the adverse party” were two factors to be considered by the trial judge in his determination to grant or deny amendments. A review of the record in the instant cause would disclose that defendant had more than five weeks for preparation of his defense to the "no-fault” grounds. In addition, much of plaintiff’s earlier testimony and exhibits were used to support her theory on the new grounds. The previous opportunity to hear the testimony and the time allowed for preparation serve to defeat the claim of surprise and disadvantage. The disadvantage here, if any, was to plaintiff who chose to complain on new grounds when the record reveals sufficient evidence to support a finding of extreme and repeated cruelty under the prior statute. Logic and common sense compel this Court to affirm the trial court’s decision and terminate an already lengthy and acrimonious dispute.
Defendant’s final assertion is that the Michigan "no-fault” divorce act is unconstitutional. Because this challenge was raised for the first time on appeal we will not now consider it. State Highway Commission v Wright, 42 Mich App 660; 202 NW2d 724 (1972).
Affirmed.
All concurred.
MCLA 552.8; MSA 25.88.
MCLA 552.6; MSA 25.86 (History Note).
" * * * Otherwise, a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave shall be freely given when justice so requires. * * * ” | [
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Per Curiam.
The people appeal the decision of Thomas Roumell, Wayne County Circuit Court judge, granting defendant’s motion to dismiss three prosecutions pending in Recorder’s Court. The factual background of this appeal is complex and is set forth with detail.
Defendant was indicted for uttering and publishing, possession of marijuana, and sale and possession of heroin. The warrants for these offenses were issued on April 1, 1968, June 2, 1968, and June 30, 1968, respectively. While at liberty on bond for these charges, defendant was arrested for carrying a concealed weapon. At the conclusion of trial for this offense held on April 30, 1969, defendant was found guilty and sentenced to serve a prison term of two to five years. After a motion for new trial was denied, defendant filed a claim of appeal. On May 14, 1970, this appeal was dismissed by joint stipulation and accompanied with the people’s dismissal without prejudice of the three pending charges. At this time defendant submitted himself for service of the sentence on his concealed weapons conviction. Defendant has subsequently avoided this sentence by flight and presently is a fugitive.
Oh September 2, 1970, defendant sought post-conviction relief by filing a delayed motion for new trial, which was denied. The prosecutor responded to this collateral attack upon the concealed weapons charge by filing a motion in Recorder’s Court to reinstate the three charges previously dismissed. The motion was denied by the examining magistrate with the suggestion that the prosecutor obtain new warrants.
The prosecutor’s office secured the reissuance of these warrants between September 25 and October 2, 1970, which defendant challenged by filing a motion to dismiss in Recorder’s Court. This motion was denied on the grounds that the prior order denying the people’s motion to reinstate the "old” warrants was simply a directive to obtain "new” warrants.
Defendant appealed this decision to the Wayne County Circuit Court by a complaint for superintending control. Following the submission of briefs and presentation of oral argument, Judge Thomas Roumell by written opinion granted defendant’s motion to dismiss. This decision was predicated upon a finding that defendant’s constitutional right to a speedy trial was violated by the two-year delay between the issuance and reissuance of warrants for the three challenged offenses. An order dismissing the charges with prejudice and enjoining their future prosecution was subsequently entered, from which the people appeal.
The single meritorious issue raised for our consideration is stated as follows:
Was the defendant denied his constitutional right to a speedy trial by a delay of two years between the original issuance of three warrants and their reinstatement?
The analytical key is the balancing test first announced in Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972). Michigan has adopted the four factors in Barker. The factors are: length of delay, reason for the delay, defendant’s assertion of his right, and prejudice to the defendant. These elements must be balanced after consideration of each in turn.
Length of delay. For each warrant approximately 24 months elapsed between issuance and dismissal. Four more months passed before the prosecutor’s motion to reinstate. Length of delay is a triggering mechanism. Mere length alone is not determinative. It must be balanced with the remaining factors. Long delays are not alone a denial of the constitutional right to a speedy trial.
Reason for delay. Delay attributable to the defendant or an aggressive defense cannot support a demand for speedy trial. Defense delays in this case have been substantial. These include illness of the defendant, illness of defendant’s attorneys, substitution of attorneys, motions to suppress and requests for adjournment to await disposition of other cases. While these warrants were pending defendant was charged with a concealed weapons violation. Further delay is attributable to a defense desire to dispose of this charge prior to the pending and more serious narcotics warrants. Defendant next alleges that his right to a speedy trial has been "chilled”. Defendant asserts an alleged exchange of his right to appeal the concealed weapons charge for dismissal of the three pending warrants. Without deciding and to facilitate our analysis we assume that such a bargain was made, breached by the people, and was a contributing factor of delay on the pending warrants. This delay creates no presumption of prejudice which can tip the speedy trial scale. If anything was "chilled” it was defendant’s appeal of the concealed weapons charge, not the right to speedy trial on the pending warrants. In any event the delay has been attributed to the people.
Necessity for demand. The failure to demand a speedy trial no longer operates as an automatic waiver. Grimmett, supra, at 605; 202 NW2d at 285. It is an element to be weighed in the balance. Collins, supra, at 688; 202 NW2d at 773. The defense delays for motions, illness, and time adjournments indicate a less than aggressive posture towards the attainment of a speedy trial. Certain of these adjournments were for the express purpose of delay while awaiting disposition on other charges. Even counter-balancing the period encompassed by the alleged bargain, the failure to demand a speedy trial during the remaining period reinforces the conclusion that defendant did not get a speedy trial because defendant did not want a speedy trial. We must weigh this factor against the defendant.
Prejudice to the defendant. We find no prejudice to the defendant personally. Defendant was not incarcerated during the delay. He was even free during the appeal of the concealed weapons conviction. There was also no prejudice to the defense. None has been demonstrated and our review of the record discloses none.
All the factors must be balanced. No prejudice to either the defense or the defendant has been shown. Length of delay alone is not determinative. Substantial portions of the delay are attributable to the defendant. No assertion of the right by motion for speedy trial or motion to dismiss was made. The defendant only belatedly asserted his right in this proceeding. Balancing all the required elements, no denial of the right to speedy trial has been demonstrated.
The May 4, 1971, decision of the circuit court must be reversed. However, we observe that the circuit judge had neither the Barker nor Collins opinions available at the time of his decision. Although we have assumed the existence of a bargain for our analysis, this question remains to be decided. The decision of the circuit court is reversed, the injunction from further prosecution is dissolved and the Recorder’s Court denial of defendant’s motion to dismiss the new warrants is affirmed.
Reversed and remanded.
MCLA 750.249; MSA 28.446.
MCLA 335.153; MSA 18.1123.
MCLA 335.152; MSA 18.1122 and MCLA 335.153; MSA 18.1123.
MCLA 750.227; MSA 28.424.
People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972), and People v Collins, 388 Mich 680; 202 NW2d 769 (1972).
See, for example, the permissible delays in: Barker v Wingo, supra (5 years); People v Grimmett, supra (19 months); and People v Collins, supra (15 months).
Again to facilitate analysis we construe the alleged chilling effect against the people. | [
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Per Curiam.
This case has been previously ap pealed to this Court, The Gray Eagles, Inc v Lucchesi, 37 Mich App 322; 194 NW2d 373 (1971). The case was ordered, "Reversed and remanded for trial as to plaintiffs bailment theory of strict liability”. On retrial, the trial court ordered the trial limited to plaintiffs bailment theory of strict liability. Plaintiff took this interlocutory appeal contending the reversal and remand was for a complete new trial, including plaintiffs negligence theory.
This is a recurring problem. It should be laid to rest. When an appellate court specifies the limits of a new trial as it did in this case, the trial court is proscribed from exceeding those specified limits.
The trial judge was correct. We affirm. Costs to the defendant.
The Gray Eagles, Inc v Lucchesi, 37 Mich App 322, 324; 194 NW2d 373, 374 (1971). | [
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O’Hara, J.
Defendant appeals of right his jury conviction of second-degree murder. MCLA 750.317; MSA 28.549.
The meritorious issue on appeal is claimed instructional error. We set forth that portion of the charge defendant contends was reversibly erroneous.
"Now in most cases, there is a third verdict, of course, the verdict of not guilty. I would say, in this regard, that you have heard the defendant testify in this case. There is no question here, no way that you could find that he did not kill his wife. He stated to you that he did. This killing was unlawful and felonious. There has been no excuse offered, which is excusable or justifiable under the law, so that your main duty here will really be to determine whether or not this is murder in the second degree or manslaughter.”
The quoted excerpt is fatally infirm. The plea of not guilty itself put the question of guilt or innocence of any offense in issue.
Later in the charge the trial court repeated the substance of the foregoing instruction.
"As I’ve stated to you in ordinary cases you would have a third verdict, possible verdict of not guilty. In this case, it would appear from the statements made to you in open court and uncontradicted, the defendant did kill his wife, and that there would not be — there was no legal justification for this killing, so your verdict will be one of two, we find the defendant guilty of murder in the second degree, or we find the defendant guilty of manslaughter.”
The learned trial judge himself apparently had second thoughts about the matter. After the jury had retired and during its deliberations he recalled them and gave this additional instruction:
"In calling you in, I just wanted to make this clear on the record, that defense counsel had called it to the court’s attention that it might have left you with the impression that you could not bring in a not guilty verdict, and I want to clear that up on the record while you’re still in deliberations, and this is not done, in any way, to influence your decision in this case.
"Does either counsel have anything to say?
"Mr. Schwartzly [defense counsel]: Nothing, your Honor.
"Mr. Dill [assistant prosecutor]: Nothing, your Honor.”
We are well aware of the fundamental precept of appellate review, "no objection, no error saved”. Assuming arguendo that defense counsel’s quoted acquiescence was acquiescence to the whole charge, still there are times when a right so fundamental is violated that a reviewing court must act upon its own. We do so here.
We are well aware also of the statute and court rule proscribing setting aside judgments of conviction for instructional error absent a manifest miscarriage of justice. Both the rule and the statute are subject to judicial supervision in their application. Neither can obtain where a fundamental right is so violated as to amount to a deprival of due process.
Such we think is the situation here. The two reversibly erroneous instructions and the mildly curative instruction may well have placed the jury in such a quandary that is was unsure of what its obligation to the defendant was. We cannot speculate that it rejected the infirm instructions and followed the later one which accorded to defendant the right to a not-guilty verdict which his plea of not guilty entitled him.
The judgment of conviction is reversed.
All concurred.
MCLA 769.26; MSA 28.1096.
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Bronson, P. J.
Plaintiff, a fireman for the City of East Detroit, challenged the constitutionality of East Detroit Charter, Chapter 19, § 5, in a declaratory judgment proceeding. Chapter 19, § 5, provides:
"Section 5. Qualiñcations. All officers and employees shall be elected or appointed with reference to their qualifications and fitness, and for the good of the public service, and without any reference to their political faith or party affiliations. Except in case of skilled laborers, not obtainable within the City, only bona ñde residents of the City shall be employed, provided they can be obtained at the going wage.” (Emphasis supplied.)
The complaint alleged that plaintiff had requested permission to change his residency from the City of East Detroit, but his superiors advised that such action would be considered a voluntary resignation. Plaintiff asserted that the cited provision violates the equal protection and due process clauses of both the Federal and state constitutions, and claimed the case presents an actual controversy. Defendant filed a delayed answer. At the pretrial conference the court set a hearing date for the submission of proofs. Both parties appeared at the hearing, but neither offered proof in support of these positions. Nevertheless, the trial judge in a written opinion upheld the validity of the statute. Plaintiff asserts on appeal that the trial court erred reversibly because the charter provision bears no relationship to public health, safety, and welfare. Further, he argues that the provision creates an unreasonable, arbitrary, and discriminatory classification unrelated to the object of the provision and totally unsupported by natural distinguishing facts.
We cannot review the trial court decision because the parties failed to submit proofs on the record. GCR 1963, 521.2 provides that "[t]he procedure for obtaining declaratory relief pursuant to this rule shall be in accordance with these rules”. The declaratory judgment proceeding is thus subject to conditions applicable to other actions. Fundamental to maintenance of this, as other actions, is the existence of a record. Once the issues have been framed, the court should hear the merits of the controversy on the record. Mayor of Dearborn v Dearborn Retirement Board of Trustees, 315 Mich 18; 23 NW2d 186 (1946). See, also, GCR 1963, 521.4.
Alternatively, the existence of an "actual controversy” is condition precedent to invocation of declaratory relief. GCR 1963, 521.1; Welfare Employees Union v Civil Service Commission, 28 Mich App 343; 184 NW2d 247 (1970); Corporation & Securities Commission v American Motors Corp, 4 Mich App 65; 143 NW2d 767 (1966). While this Court has liberally construed the test for declaratory relief, and will grant relief in the interests of justice, the lack of any record from which to determine the existence of an actual controversy strips this Court of its powers of de novo review. McComb v McComb, 9 Mich App 70; 155 NW2d 860 (1967). Not only must plaintiff plead the facts entitling him to the judgment he seeks; he has the additional burden to prove each fact alleged. Plain tiffs must allege and prove an actual justiciable controversy before affirmative relief can be granted. 26 CJS, Declaratory Judgments, § 147, p 348. Failure to follow this elementary principle deprives this Court of its constitutionally ordained function. Const 1963, art 6, § 28, provides:
"All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such ñnal decisions, ñndings, 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.” (Emphasis supplied.)
The trial court improvidently entered a judgment in favor of defendant, City of East Detroit. The judgment is vacated and the cause remanded for proceedings not inconsistent with this opinion. On remand, the parties should consider the nature of the interest and test to be applied in light of Shapiro v Thompson, 394 US 618; 89 S Ct 1322; 22 L Ed 2d 600 (1969); Krzewinski v Kugler, 338 F Supp 492 (D NJ, 1972); King v New Rochelle Municipal Housing Authority, 442 F2d 646 (CA 2, 1971), but cf. Detroit Police Officers Association v Detroit, 385 Mich 519; 190 NW2d 97 (1971)
Reversed and remanded. We do not retain jurisdiction.
All concurred.
See, also: "Residence Requirements After Shapiro v Thompson”, 70 Colum LR 134 (1970), for analysis of the implications of Shapiro, supra. | [
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Van Valkenburg, J.
Plaintiffs were laid off from their jobs at defendant corporation and thereafter filed for unemployment benefits. Defendant corporation allocated certain vacation pay to the layoff period and asserted that plaintiffs were therefore not entitled to benefits for those weeks in which they received vacation pay. The Employment Security Commission referee determined that the allocation of the vacation pay to the layoff period was proper, and therefore plaintiffs were not unemployed within the meaning of MCLA 421.48; MSA 17.552; thus plaintiffs were not entitled to unemployment compensation for those weeks to which the vacation pay was allocated. Plaintiffs appealed to the Employment Security Appeal Board, which affirmed the findings and determination of the referee. Plaintiffs appealed to Macomb Circuit Court, where the court affirmed the decision of the appeal board and dismissed the appeal of plaintiff Boyer by reason of the fact that he was not a resident of Macomb County. Plaintiffs thereafter appealed to this Court.
The statute in question, MCLA 421.48; MSA 17.552, provides in pertinent part:
"An individual shall be deemed 'unemployed’ with respect to any week during which he performs no services and with respect to which no remuneration is payable to him * * * .
* * *
"All amounts paid to a claimant by an employing unit or former employing unit for a vacation or a holiday * * * shall be deemed remuneration in determining whether an individual is unemployed under this section and also in determining his benefit payments under section 27(c), for the period designated by the contract or agreement providing for the payment, or if there is no contractual specification of the period to which such payments shall be allocated, then for the period designated by the employing unit or former employing unit: Provided, however, That payments for a vacation or holiday made, or the right to which has irrevocably vested, after 14 days following such vacation or holiday, and payments in the form of termination, separation, severance or dismissal allowances, and bonuses, shall not be deemed wages or remuneration within the meaning of this section.”
The question of whether a claimant can be denied unemployment benefits by reason of the vacation pay provisions of MCLA 421.48, supra, can only be determined by referring to the contract of employment to ascertain whether the employer can designate the time at which vacations must be taken. See Rich Manufacturing Corp v Lindsey, 376 Mich 241; 137 NW2d 140 (1965); see, also, Renown Stove Co v Unemployment Compensation Commission, 328 Mich 436; 44 NW2d 1 (1950); Hubbard v Unemployment Compensation Commission, 328 Mich 444; 44 NW2d 4 (1950).
The pertinent parts of the collective bargaining agreement entered into by plaintiffs’ union with defendant corporation provide:
"Section 7. Vacation
"(a) Employees with continuous and active service shall be eligible for a vacation and vacation allowance in accordance with the following schedule.
one (1) through five (5) years 10 days
6th year (sixth anniversary) 11 days
7th year (seventh anniversary) 12 days 8th year (eighth anniversary) 13 days
9th year (ninth anniversary) 14 days
10th year (tenth anniversary) 15 days
To be eligible for a vacation as provided for in this Section, an employee must have worked eighty percent (80%) of the regularly scheduled working hours of the plant between his anniversary date of the preceding year and his anniversary date of the particular vacation year.
"(b) Employees laid off by the Company because of lack of work or an employee inducted into Military Service under the Selective Service Act, as amended, and who have the required service shall receive a prorata vacation allowance at the time of termination based upon 1/12 of the vacation pay for which he is eligible for each month and major fraction of the month from his last anniversary date to the date of termina tion provided that he has worked at least 80% of the regularly scheduled working hours of the plant between his last anniversary date and his termination date. An employee shall be determined to have worked a major fraction of the month if he has worked a minimum of 85 S/T hours. * * *
"(c) The vacation pay allowance under this article shall be computed at the employee’s regular base hourly rate of pay, including shift differential of record and cost-of-living allowance, if any, less normal standard deductions. Employees eligible for vacation will receive their vacation pay allowance on their anniversary date.
"(d) The determination of whether there shall be a vacation or vacation pay in lieu of a vacation shall be solely at the discretion of the Company. Supervision will give consideration to the seniority of his employees when scheduling vacations.”
The operation of these contractual provisions is easily understood. After one year of continuous and active service an employee becomes eligible for a vacation and vacation pay in accordance with the schedule set forth in § 7(a) of the contract. On that first anniversary date the employee would be paid his vacation pay allowance pursuant to the provisions of § 7(c). The vacation time would not necessarily be taken at the time the vacation pay allowance was given to the employee. Not only is the scheduling of vacation time within the discretion of the company, but also the determination of whether there will be vacation or vacation pay in lieu of a vacation, as provided in § 7(d). It is thus within the sole providence of the company to determine whether and when vacations are to be taken.
Since by the contract the company had the right and power to determine when vacations were to be taken, and in light of the absence of a contractual designation of the vacation period, defendant cor poration properly allocated and designated that the plaintiffs’ accrued and unused vacation time and pay should be allocated to the period of the layoff. Plaintiffs were thus not unemployed within the meaning of MCLA 421.48, supra, and were therefore not entitled to unemployment benefits for those weeks.
Likewise, since pursuant to § 7(b) of the contract an employee who is laid off because of lack of work is entitled to a pro-rata vacation allowance equal to 1/12 of the vacation allowance for which he is eligible for each month since his anniversary, the company properly designated that said vacation pay be allocated to the layoff period. While plaintiffs assert that said payments were in the nature of bonuses, a reading of the contract provisions belies that position. It is clear that the drafters of the contract intended to have vacation time accrue through the year, but it was only to vest upon the coming of the anniversary date, upon layoff or termination because of lack of work or upon induction into the armed services. Since plaintiffs were laid off because of lack of work, their right to the accrued pro-rata share of their vacation allowance vested. Having vested and having been paid by defendant corporation, defendant corporation had the right to designate what period said vacation allowance would apply.
While the question of whether the circuit court’s dismissal of Boyer’s appeal was proper is rendered moot by our holding herein, we would note that the circuit court quite properly dismissed Boyer’s appeal. Boyer was an Oakland County resident and therefore he could not properly appeal the commission’s ruling to the Macomb Circuit Court. See Alvarado v Ford Motor Co, 45 Mich App 382; 206 NW2d 480 (1973).
Affirmed. No costs, a public question being involved.
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Per Curiam.
Defendant Bell appeals from the order of the trial court denying his motion for summary judgment. Plaintiff cross-appeals from an order granting summary judgment to defendants Seay, Thomas and Sikes. These orders were entered in plaintiff’s action for declaratory relief and restraint of arbitration proceedings commenced by defendants on claims for damages under an uninsured motorist provision of plaintiff’s insurance policy issued to defendant Bell.
On June 18, 1970, Bell was a passenger in his motor vehicle, as were the other defendants. Aubrey Thomas was operating the vehicle with permission when it was involved in an accident with an uninsured motorist. All defendants claimed they sustained injuries in the accident and filed claims with plaintiff under the uninsured motorist provision of defendant Bell’s policy.
Driver Thomas was under 25 years of age at the time of the accident. By special endorsement, the policy involved was null and void and of no benefit and effect as to any loss or damage arising from an accident that occurred while Bell’is vehicle was being operated by anyone under 25 years of age. On the basis of this endorsement, plaintiff denied defendants’ claims and they requested arbitration pursuant to a policy provision therefor.
In response to plaintiff’s action for declaratory relief and restraint of arbitration, defendants moved for summary judgment on the basis that the exclusionary provision relied on by plaintiff that excluded coverage when a driver under 25 years of age drives the insured vehicle was con trary to public policy and therefore invalid. In granting the orders appealed from, the trial court held that the exclusionary provision was valid but that it only applied to claims by the named assured.
Allstate Insurance Co v Motor State Insurance Co, 33 Mich App 469; 190 NW2d 352 (1971); Robinson v Mendell, 45 Mich App 368; 206 NW2d 537 (1973); Blakeslee v Farm Bureau Insurance, 388 Mich 464; 201 NW2d 786 (1972), all sustain defendant Bell’s contention that the exclusionary provision involved is void as contrary to public policy. The conclusion is not altered by MCLA 500.3009(2); MSA 24.13009(2) which provides:
"When authorized by the insured, automobile liability or motor vehicle liability coverage may be excluded when a vehicle is operated by a named person. ”
This statute took effect on December 29, 1971; this was subsequent to the effective date of the insurance policy and the accident involved, which occurred June 18, 1970. The force of the statute is clearly limited to a "named person” and does not apply to under 25 year old drivers as a class.
The foregoing conclusion obviates discussion of defendants’ contention that plaintiff’s action was premature.
As to defendant Bell, the trial court is reversed and summary judgment shall enter below as to Bell; otherwise the trial court is affirmed. Defendants may recover costs. | [
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Bronson, J.
On July 23, 1971, defendant, Edward Beamon, was charged with second-degree murder. A jury found him guilty of manslaughter on February 9, 1972. He was sentenced on May 6, 1972, to serve 3-1/2 to 15 years in prison. Defendant appeals by right.
In spite of adequate opportunity, the prosecutor has failed to file any brief or other written objection to this appeal. Without the benefit of the prosecutor’s position this Court is forced to act first as the prosecutor’s advocate and then as an impartial reviewer of the merits. The prosecutor’s silence seriously impairs our adversary process of appellate review. This Court cannot condone unexplained prosecutorial silence in cases involving issues of legal significance.
Defendant has briefed and argued several issues for our review. The common denominator of these allegations of error, if sustained, is their bearing bn defendant’s claim of self-defense. The operative facts will facilitate our consideration of these questions.
Defendant and the deceased were neighbors. A quarrel developed between their children. During the respective fathers’ attempts to resolve this quarrel a fatal scuffle developed. Defendant’s theory of this altercation was self-defense and accident. Defendant claims the fatal shots were fired while the parties were facing each other. The people attempted to show the shots were fired at the deceased’s back. The resolution of this factual dispute was pivotal to the theory of both the people and the defendant.
Eyewitness testimony on this point is conflicting. Other than this counterbalancing eyewitness testimony three areas of proof were possible to resolve the question of where the bullets entered deceased. First, a postmortem analysis of the actual wounds. Second, an examination of the tee shirt through which the bullets passed. Finally, examination of the work shirt worn by deceased at the time of his death. All would have materially aided in determining the question.
The people called a forensic pathologist who had conducted over 300 postmortems in cases involving violent death. There is no dispute concerning the pathologist’s qualifications as an expert. It was the pathologist’s opinion, based on his examination of the actual wounds, that the entrance wounds were in the front, thus supporting defendant’s theory of self-defense and accident.
The deceased’s tee shirt was removed at the hospital by the coroner along with the outer work shirt. The shirts were given to the police. The record is not entirely clear but it appears the two shirts were placed in the same evidence retention envelope. Although an examination of the tee shirt may have shed light on the entrance-exit issue, no such examination was made. The tee shirt disappeared from police custody sometime prior to trial.
The third and last item, the work shirt, was examined. However, this evidence is not without taint akin to the unexplained loss of the tee shirt. The coroner testified that when he removed the shirts there was blood around one of the holes in the back of both the tee shirt and the work shirt. At trial there was no blood on the work shirt, nor was there blood on the work shirt at the time it was examined by the state police firearms expert. It appears that the shirt may have been laundered. The admissibility of this shirt must therefore be considered in light of certain basic principles.
When offering real evidence [the work shirt] an adequate foundation for admission requires "testimony first that the object offered is the object which was involved in the incident, and further that the condition of the object is substantially unchanged”. McCormick, Evidence (2d ed), § 212, p 527. Factors to be considered in making this determination include the nature of the article, the circumstances surrounding the preservation and custody of it, and the possibility of intermeddlers tampering with it. If, after considering such factors, the trial judge is satisfied that in reasonable probability the article has not been changed in important respects, he may permit its introduction in evidence. Applying these principles our review of the present record indicates insufficient foundation testimony on these factors to support admission of the work shirt. No chain of custody was established for the work shirt from time of removal to the time of trial. Furthermore there was testimony that the work shirt was not in the same condition at trial as when removed at the hospital. Admission of the shirt without proper foundation was error.
Defendant next claims that admission of evidence of other crimes for impeachment was error. One of the complained of prosecutorial questions was: "Didn’t you attack a lady in the police station with a cane one time?” Questioning concerning prior convictions has recently been considered by our Supreme Court in People v Falkner, 389 Mich 628; 209 NW2d 193 (1973). Falkner held:
"We hold that in the examination or cross-examination of any witness, no inquiry may be made regarding prior arrests or charges against such witness which did not result in conviction; neither may such witness be examinéd with reference to higher original charges which have not resulted in conviction, whether by plea or trial.” Falkner, supra, at 695; 209 NW2d at 199.
To the extent the prosecutor’s questioning deviates from this rule it was error.
Admission of the work shirt was prejudicial. It was the opinion of the firearms expert, based on the work shirt, that the bullets entered in the back. This opinion goes to the heart of the defense. The jury deliberated for ten hours over a period of two days. Viewing the record in its entirety we cannot say that the jury might not have reached a different result if the Falkner rule was carefully followed and the work shirt had been properly excluded.
Since the issue may arise again on retrial we turn to defendant’s claim that the instruction on self-defense shifted the burden of proof to defendant. The precise instruction given was considered by a panel of this Court in People v Fredericks, 36 Mich App 632, 636; 194 NW2d 42, 44 (1971). In Fredericks it was expressly found that the instruction did not place the burden of proof upon the defendant. If the defendant feels the instruction could be reworded to accord greater clarity, then on retrial he should present the trial court with such an instruction.
Reversed and remanded.
All concurred.
MCLA 750.317; MSA 28.549.
MCLA 750.321; MSA 28.553.
It is this writer’s personal view that the prosecutor’s failure to respond in certain circumstances is tantamount to admission that the defendant’s allegations of error are meritorious. See, generally, People v Walma, 26 Mich App 326 (1970), and People v Hatfield, 46 Mich App 149; 207 NW2d 474 (1973).
The failure to provide a brief in this case is even more difficult to understand in light of the assistance to prosecutors offered by the Prosecuting Attorneys Appellate Service.
Our review of the record has disclosed this error. It was not raised on appeal. However, to prevent a miscarriage of justice we consider it sua sponte. See: People v Sanders, 43 Mich App 698, 703; 204 NW2d 706, 708 (1972) (concurring opinion of Bronson, J.); People v Deqraffenreid, 19 Mich App 702; 173 NW2d 317 (1969); and People v Mattice, 38 Mich App 333; 196 NW2d 345 (1972) (opinion by Quinn, J.).
See, also: 7 Wigmore, Evidence (3d ed), § 2129, pp 564-569, wherein Professor Wigmore explains the importance of properly authenticating real proof. | [
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Carr, C. J.
Plaintiffs in this action seek a decree for the specific performance of an option for the purchase of certain real estate in the city of Rockford, Michigan. The trial court granted the relief sought and defendants have appealed. Said option was incorporated in a written lease of the property which the defendants, as owners, executed to the plaintiffs July 7, 1943. The instrument demised the premises for a term of one year from and after the first day of July, preceding its execution.
The lease, which was largely in printed form, required plaintiffs to pay the sum of $420 for the term specified, in instalments of $35 on the first day of each, month, in advance, 'together with taxes and insurance. Plaintiffs were given the right to pay at any time larger sums than were due on the lease and to have the éxcess applied either on rents subsequently accruing or on the purchase' price of the premises if the option to purchase therein contained was exercised. Paragraph 8 of the lease in which the terms of the option were specified was as follows:
“8. In part consideration hereof, said first party agrees to withdraw said premises from market and sale during the term of this lease, and all extensions thereof, and at its expiration or at any time prior thereto, if second party shall have complied with all its conditions and shall then elect to purchase said premises, and shall give first party written notice of such election previous to such'expiration, first party will thereupon sell second party said premises for the sum of $4,000 and interest thereon at 6 per cent, per annum, computed monthly from the date hereof, less all sums said second party shall have paid under this lease for rent of said premises, aside from insurance and taxes, and less interest on said sums at 6 per cent, per annum- computed from the several dates of payment. •
“If the purchasers exercise their option to purchase they shall be entitled to a land contract dated back to May 1, 1942 the date they took possession and the rents paid since that day are to be computed as payments monthly, the interest deducted and the balance applied on the principal, just the same as a contract from that date*would be.”
Plaintiffs first went into possession of the property in May, 1942, under a verbal agreement. Following* the execution of the lease they continued in possession, making payments of rent, taxes, and insurance in substantial compliance with the terms of the lease. Defendants claim that plaintiffs did not fully perform their obligations within the time specified but. the trial court found that there had been no material default on plaintiffs’ part. Such finding is fully supported by the evidence.
It is the claim of the plaintiffs that the option to purchase was exercised before the expiration of the year specified in the lease. Plaintiff Robert W. Starr testified on the trial in circuit court that on June 30, 1944, he wrote to defendants-from South Bend, Indiana, inclosing a check for the rent due on the following day, and specifically requesting from defendants a land contract for the purchase of the property in accordance with the specifications in the lease. The .receipt of the check referred to was not seriously questioned by defendants but they denied having received any such letter as plaintiff Robert W. Starr claims he wrote to them.
It will be noted that the language of the lease providing for the option did not specifically authorize sending the required written acceptance by mail. It was, therefore, incumbent on plaintiffs, if they were required to give such notice before the expiration .of the year from and after July 1, 1943, to establish that the letter in question was received by defendants on or before July 1, 1944. The time of the receipt of notice, if it was received, rather than the time oflts mailing, is controlling. Burhans v. Corey, 17 Mich. 282. In 39 Am. Jur. p. 250, it is said:
“Where a contract requires notice, but does not specify the manner in which the notice is to be given, mere mailing of the notice is not sufficient unless it is received, in the absence of express provisions in the contract to the contrary, and if the mn tice is mailed in proper time, but is not received until after the time fixed for giving notice, it is ineffective.”
There is no showing in the record before us as to the usual course of time within which a letter mailed in South Bend, Indiana, would, at the time of the transaction in question, have reached Rockford. Furthermore, defendants resided on a-rural route.' If it be assumed that the letter and check were sent together, as plaintiffs claim, there is no proper basis for a finding that they were actually received by defendants at their home, on the day-following the mailing. The conclusion follows that plaintiffs have failed to show the exercise of the option on or before July 1, 1944.
This brings us to the consideration of the question whether the lease should be construed as providing for an extension. The provisions with reference to payment of rent, taxes and insurance, imposed obligations on the plaintiffs, not only during the life of the lease, but, also, during “all extensions thereof.” Similar language,was used in the paragraph of the printed form with reference to repairs; and paragraph 8, above quoted, required that the lessors withdraw the premises from sale “during -the term of this lease, and all extensions thereof. ’ ’ These provisions are in accord with paragraph 4 which reads as follows:
“4. At the expiration of this lease, if said second party shall have made all payments therein specified and complied with all its terms in time and manner as- therein set forth, he or they shall be entitled to an extension thereof for - years on the same terms as therein set forth, and the covenants of this lease shall apply to all extensions thereof, and the extensions be treated as if a part of the original term.”
It is the claim of plaintiffs that they had an election to extend the lease and all of its covenants, that they evidenced such election by remaining in possession after July 1, 1944, and that such possession was so continued pursuant to the terms' and provisions of the lease. Defendants insist that plaintiffs were not entitled to an extension, emphasizing that the blank in paragraph 4 was not filled out. On the basis of such omission it is contended, in substance, that the parties did not intend to give plaintiffs the privilege of an extension.
The parties used a printed form of lease, so worded as to indicate an' intent to provide for an extension or extensions. It may be assumed that they did so with full knowledge of the presence of such provisions. It is significant; also, that paragraph 4, above quoted, was not stricken out. Had this been done the intention of the parties would have been clearly shown. The principle is firmly established, however, that ambiguous provisions in a lease of this character must be construed against the lessor or lessors. Thus in Park Building Co. v. George P. Yost Fur Co., 208 Mich. 349, 357, it was said:
“It is a recognized rule of construction that where more than one meaning is permissible that inost favorable to the lessee must prevail; Pere Marquette R. Co. v. Wabash R. Co., 141 Mich. 215.”
Of like import is Patterson v. Butterfield, 244 Mich. 330. See, also, Kaufmann v. Liggett, 209 Pa. 87 (58 Atl. 129, 67 L. R. A. 353, 103 Am. St. Rep. 988).
The provisions of the lease with reference to the privilege of extension on the.pgrt of the lessees may not be ignored because of the failure of the parties to fill out the blank. Such failure may well be regarded as indicating that the lessors either did not care to specify a definite term for the extension or did not think it necessary to do so. When a blank in an instrument is not filled, such blank may be rejected as surplusage if it appears that the parties so intended. In such a case the intent is to be inferred from the transaction and its details. Hall v. First National Bank of Kenmore, 226 App. Div. 190 (234 N. Y. Supp. 432); N. E. D. Holding Co. v. McKinley, 246 N. Y. 40 (157 N. E. 923); 17 C. J. S. p. 417. If the blank is ignored, and the lease construed as providing for an extension “for years,” then the privilege granted to the lessees was, under the common-law rule recognized by some authorities, for an added term of two years, that being the shortest period that may be regarded as satisfying the phrase. The principle is stated in 5 Bacon’s Abridgment, p. 623, as follows:
“If a man makes a lease for years, without saying how many, this shall be a good lease for two years certain, because for more there is no certainty,- and for less there can be no sense in the words. ’ ’
A similar statement is found in Denn v. Cartright, 4 East, 31 (102 Eng. Rep. 740); Bishop of Bath’s Case, 3 Coke’s Rep., p. 323; 1 Washburn on Real Property (6th Ed.), p. 350. In accordance with the rule of construction referred to the supreme court of Washington, in Boston Clothing Co. v. Solberg, 28 Wash. 262 (68 Pac. 715), held that a lease for “one or more years” constitutes a term of two years, citing Wood, Landlord and Tenant (1st Ed.), §291; and Gear, Landlord-and Tenant, §25. This decision was cited and followed in Metcalf Auto Co. v. Norton, 119 Me. 103 (109 Atl. 384), where it was held that a lease or agreement to lease for years or for a term of years is a good lease or agreement for two years. The application of this rule in the case at bar involves treating the blank as surplusage and the privilege of extension as one for years, leading to the conclusion that plaintiffs had the privilege, under the lease as drawn, of an extension for two years.
The lease in question may also be construed, and its provisions given force and effect, by eliminating from paragraph 4 the phrase “for - years.” Such elimination would result in giving to plaintiffs the right to an extension without specific designation as to the length thereof. It is definitely settled by authority, however, that an agreement for an extension or renewal of a lease, without designation of the added period, is to be considered as contemplating an extension or renewal for a period equal to the original term. In Karn v. DiLorenzo, 95 Conn. 267 (111 Atl. 195), it was said:
“It has uniformly been held that a general covenant ‘to renew,’ implies a renewal on the same terms and for the same time as the original lease? and therefore.is sufficiently certain to be enforceable.”
In King v. Wilson, 98 Va. 259 (35 S. E. 727), a lease was given for a 10-year period subject to the following provision “Renewable or pay for the improvements at their valuation.” It was recognized that the clause quoted meant that the lease wajs renewable for another 10-year period at the option of the lessee. In reaching this conclusion it was said:
“It is well settled that a general covenant for renewal, such as the one in question, does not imply a perpetual renewal. The most the lessor is bound to give on such a covenant is a renewal for one term only. ’ ’
Of like import are Duggan v. Krevonick, 169 Va. 57 (192 S. E. 737); Penilla v. Gerstenkorn, 86 Cal. App. 668 (261 Pac. 488); Austin v. Newham, (1906) 2 K. B. 167 (6 Ann. Cas. 102). In the note in Ann. Cas., following the case last cited, it is said:
“A lease containing a general promise to renew, without specifying the duration of the term of renewal, has usually been held to refer to the terms of the lease in which such language is used, so as to be, in effect, an agreement to renew for the same term as the original lease.”
The statement is supported by the citation of authorities.
Applying the suggested method of construction in the case at bar leads to the conclusion that plaintiffs were entitled to the privilege of an extension of the lease for one year. We think that such result is more consistent with the actual intention of the parties than the interpretation resulting in an extension for two years, ¡above discussed. We accept it for that reason, although it is obvious that insofar a§? the case at bar is concerned whether the extension contemplated by .the lease is regarded as for one year or for two years is not material.
Plaintiffs continued in possession of the property after July 1, 1944, and in fact were still in possession at the time of the trial in the circuit court. Their election to accept the privilege of extension granted by the lease was evidenced by such possession. Formal notice of the intention was not required to be given defendants, there being no provision in the lease imposing such requirement. In Delashman v. Berry, 20 Mich. 292 (4 Am. Rep. 392), the lease involved was for a term of one year “with the privilege of having the same three years at the same rent, at the option of the lessee.” Proceedings were brought to oust the lessee who had remained in possession a few days after the expiration of the term of one year without otherwise giving notice of his intention to avail himself of the privi-, lege granted by the option. In determining that snch notice was not necessary it was said:
‘ ‘ Such a notice had it been given would have been .a notice only of the lessee’s intention to continue the same occupation, upon the same terms as before. And upon principle it would certainly seem that the actual continuance of such occupation was the best and most conclusive evidence of his intention to continue. And, as it was at his option to have the term expire at one year or three years, and he had covenanted to deliver up possession at the end of the term; but one inference could legally and properly be drawn from such continuance, after the year, vis: that he intended to continue rightfully according to the terms of his lease, rather than lorongfully in defiance of its provisions. If he elected to remain at all after the first year, he must be held to have elected under, and according to, the terms of the lease which gave him no right to elect a term of five days, a month or any other period, except the optional term provided by the lease, which in this case could not have been less than one year,- if in. fact, less than two years, after the expiration of the first.”
The Court further recognized that a different situation might be presented under a lease'providing for a renewal by the execution of a further in-' strument, in which event notice by the lessee might be required. . A distinction between an extensión provision and a renewal provision was considered by the Iowa supreme court in Andrews v. Marshall Creamery Co. (1902), 118 Iowa, 595 (92 N. W. 706, 60 L. R. A. 399, 96 Am. St. Rep. 412), where it was said: .
“There seems to be no doubt under the authorities that, where a lease provides that the tenant may have, at his option, an extension for a specified time after the expiration of the term agreed upon in the lease, or may occupy for an extended term including the term specified, the mere holding over after the expiration of the specified term will constitute an election to hold for' the additional or extended term,- and the tenant, after holding over beyond the first term without any new arrangement, is bound for the additional or extended term, as fully and completely as though that term had been originally included in the lease when executed. Delashman v. Berry, 20 Mich. 292 (4 Am. Rep. 392); Terstegge v. First German Mutual Benevolent Society, 92 Ind. 82 (47 Am. Rep. 135); Montgomery v. Board of Commissioners of Hamilton County, 76 Ind. 362 (40 Am. Rep. 250); Peehl v. Bumbalek, 99 Wis. 62 (74 N. W. 545); Harding v. Seeley, 148 Pa. 20 (23 Atl. 1118); Mershon v. Williams, 62 N. J. Law, 779 (42 Atl. 778); Clarke v. Merrill, 51 N. H. 415. According to this view, the continuance in possession is sufficient proof of an election to enjoy the privilege of extension provided for. Kramer v. Cool, 7 Cray (73 Mass.), 550; Stone v. St. Louis Stamping Co., 155 Mass. 267 (29 N. E. 623); Holley v. Young, 66 Me. 520.”
The extension of the lease operated to extend the option to purchase. Under paragraph 4 of the instrument, hereinbefore quoted, all covenants in the lease applied to extensions, and the extensions were required to be treated “as if a part of the original term.” A further provision in paragraph 8, whereby the lessors covenanted to withdraw the premises from sale, during, the term of the lease and all extensions thereof, further indicates the intention of the parties. Clearly the parties contemplated that if the lessees exercised the privilege of extension the option to purchase would be likewise extended.
In Meadow Heights Country Club v. Hinckley, 229 Mich. 291, defendants executed to plaintiff a lease for a 10-year period with the privilege of renewal for five additional years on the same terms. The lessee continued in possession during the renewal period, and gave notice of its election to exercise the option to purchase the property for $125 per acre, as provided in the. lease. In holding that plaintiff was entitled to a decree for specific performance the Court said in part:
‘ ‘ The parties agreed that the option to purchase might be exercised at any time before the termination of the lease. When did this lease terminate? The lease was a present demise for the period of 15 years at the option of plaintiff. Delashman v. Berry, 20 Mich. 292 (4 Am. Rep. 392); Flynn v. Bachner, 168 Mich. 424 (Ann. Cas. 1913 C, 641). The lease itself extended the term. Luthey v. Joyce, 132 Minn. 451 (157 N. W. 708, L. R. A. 1916 E, 1235); Bergstein v. Bergquist, 152 Minn. 358 (189 N. W. 120). The parties contracted for a 15-year holding by plaintiff, if plaintiff so desired, and certainly there could be no termination of the lease until the right to hold thereunder ended. The lease expressed no new purpose and carried no limitations during the extended period. The lease constituted the option to purchase a covenant running with the demise of the land.”
Likewise, in Thomas v. Gottlieb Bauernschmidt Straus Brewing Co., 102 Md. 417 (62 Atl. 633), the lease contained provisions for extensions and, also, an option to purchase during the first extension of the tenancy. The lessee undertook to exercise the option during such extension. There, as in the case at bar, it was expressly provided that all covenants should continue in force during extensions. It was held accordingly that the lessee was entitled to specific performance on the ground that fie fiad exercised tfie option witfiin tfie time specified fiy tfie lease and in accordance with tfie provisions thereof. Tfie same conclusion was reached in Waters v. Wambach, 140 Md. 253 (117 Atl. 751); Schaeffer v. Bilger, 186 Md. 1 (45 Atl. [2d] 775, 163 A. L. R. 706), and Ackerman v. Loforese, 111 Conn. 700 (151 Atl. 159). In Masset v. Ruh, 235 N. Y. 462 (139 N. E. 574), a lease was given, for a term of three years with tfie privilege of renewal for a like period, and, also, with an option to purchase at a specified price “during tfie term and existence of tfie lease.” Tfie lease was renewed in accordance with these provisions and it was field tfie lessee could exercise the option to purchase at any time during tfie extended term. As in Meadow Heights Country Club v. Hinckley, supra, it was field that tfie lessees fiad a lease for tfie original term of three years and for an extended term of like duration as well.' Citations of other cases, recognizing and applying tfie rule laid down in tfie decisions above discussed, will be found in tfie annotation following Sherwood v. Tucker, (1924) 2 Ch. 440, as reported in 37 A. L. R. 1239, and, also, in tfie annotation following, Schaeffer v. Bilger, supra, as reported in 163 A. L. R. p. 706.
Plaintiffs exercised tfie option in tfie instant case during tfie extension of tfie lease by giving to defendants written notice of their desire to. do so. Assuming that tfie letter claimed to have been written by Robert Starr on June 30, 1944, was not received by defendants, subsequent letters, .which defendants admitted came to them in tfie due course of tfie mails, piay properly be construed as demanding a contract pursuant to tfie option clause of tfie lease. Plaintiffs’ exhibit 2, a letter dated August 12, 1944, written by plaintiff Robert Starr to defendant John Hoick, specifically requested that a' contract be prepared, presented to the plaintiff Beatrice J. Starr for her signature, arid then forwarded to the writer. Further reference to the contract was made in a letter written by plaintiff Robert Starr to defendant John Hoick, enclosed in an envelope bearing a postmark indicating that it was' mailed from Silver City, New Mexico, on September 7, 1944. This letter is not in the printed record, but is included in certain original exhibits forwarded by counsel for defendants to the clerk of this Court. Plaintiffs clearly undertook to exercise the right granted to them by the option provision of the lease.
It is further claimed that the validity of the lease is open to question on the ground that it was not signed by plaintiff Beatrice J. Starr. On the record before us there seems to be some question as to whether said plaintiff actually signed the instruí ment. The suit was originally started by plaintiff Robert W. Starr alone. He attached to his bill of complaint, as exhibit A, a copy of the lease which indicated that the instrument had not been signed by Beatrice J. Starr. On the trial, however, defendants’ duplicate of the lease was introduced in evidence as exhibit 4. It has been returned to this Court with other exhibits above mentioned. This exhibit bears the purported signature of Beatrice J. Starr. Her testimony on the trial was not specific as to whether she had actually signed it or not. Whether .she did so1 is immaterial. In accordance with leave granted by.the court she intervened as. a party plaintiff, asserting interest with that of the other plaintiff under the lease and the option to purchase. It is apparent that the terms and conditions of the lease were accepted by both lessees. They held possession of the property in accordance with its terms. Under 3 Comp. Laws 1929, § 13413 (Stat. Ann. §26.908), a lease of land for a longer period than' one year' is void unless in writing and signed by the lessor or lessors.' Such requirement is not imposed on lessees. The validity of the lease in the instant case was not dependent on the signatures of the plaintiffs, or either of them.
• The trial judge correctly determined that plaintiffs were entitled to the relief sought. The decree is affirmed, with costs to appellees.
Butzel, Bushnell, Sharpe,. Boyles, Reid, North, and Dethmers, JJ., concurred. | [
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Bttshnell, C. J.
This is an appeal from a decree entered April 5, 1946, in which plaintiff Laura B. Gray was granted separate maintenance and defendant Bussell B. Gray was ordered to pay to the friend of the court as permanent alimony for the support and maintenance of plaintiff the sum of $50 per week, together with all existing arrearages in the temporary alimony theretofore ordered. By this decree, plaintiff was given the exclusive use of the homestead of the parties and defendant was required to pay all taxes, insurance and major repairs thereon. He was also, required to pay plaintiff’s attorney fees and costs in the sum of $2,282.59.
The parties were married in Pennsylvania in 1905. They have one child, a daughter, who was born in 1906. During the early years of their married life plaintiff did all her own work and also worked for others in order to augment the limited family income. After the parties came to Detroit in 1910. the defendant became more successful, and in 1922 he was earning about $135 per week. About that time lie organized a company for the manufacture of hubs for automobiles, which became a financial success. While the parties were living happily together, defendant became interested in another woman, left his home and built one for her, where he afterwards lived under an assumed name. In 1943 he requested his wife to consent to a divorce and, after her refusal, went to Nevada, where he was later joined by the woman with whom he had been associating.
The records of the El Cortez Hotel at Reno, Nevada show that Gray arrived at Reno on September 15, 1943, and lived at this hotel until January 24, 1944. The other woman registered as a guest at this same hotel on December 1, 1944, and lived there until Gray’s departure. Gray testified in the instant case that he was not acquainted with anyone in Reno prior to September 16, 1943; nor was he gainfully employed while there. He admitted paying an employee of the hotel $5 for his services as a resident witness in the. Nevada case. He said he returned to Michigan about December 14, 1943, after which he went back to Reno for a short while, and again returned to Michigan after January 23, 1944.
On November 9,1943, plaintiff was served, by registered mail, with a notice of divorce proceedings in Nevada, but she did not enter her appearance therein. An uncontested decree of divorce was granted by the district court for the county of Washoe, Nevada on December 10, 1943. Defendant immediately discontinued providing support of any nature for his wife, and shortly thereafter married the other woman. Upon his return to Detroit a few weeks later he resumed his active management of the Gray Hub Company, a Michigan corporation, no change in its administration having been effected during his absence. Litigation between plaintiff and defendants Gray Hub Company, Gray, its president and principal stockholder, and Harold J. Baumgartner, its treasurer, is dealt with in the case of Gray v. Gray Hub Company, ante, 39, decided herewith.
The bill of complaint in the instant case was filed on November 15, 1943. Defendant appeared specially, and on January 6, 1944, filed a motion to dismiss on the ground that the separate maintenance action was barred by reason of the divorce which he had obtained in Nevada on December 10, 1943. This motion was denied. Personal service was subsequently had upon the defendant in Michigan-on February 6, 1944, and an order was entered on-August 9th requiring him “to pay $50 a week as temporary alimony * * * commencing February 10, 1944.”
Defendant, having' been cited for failure to pay temporary alimony, instituted proceedings in the United States District Court to prevent enforcement of a contempt order in the State court. He based his right to relief in the Federal court upon the Nevada decree. United States District Judge Picard filed an opinion in which he concluded, as a matter of law, that, although full faith and credit should be given by Michigan courts to the Nevada divorce decree, the bona tides of the divorcing parties’ domicile could be questioned. Because of this he held that the Michigan court could proceed with the separate maintenance suit, and the Federal court would not prevent the enforcement of the contempt order. Gray v. Gray, 61 Fed. Supp. 367.
Plaintiff’s bill, as amended, is planted upon the right of separate maintenance, as provided in 3 Comp. Laws 1929, § 12794 et seq. (Stat. Ann. § 25.211 et seq.), rather than under 3 Comp. Laws 1929,
§ 12728 (Stat. Ann. § 25.86). Nor did she seek any relief that might have been obtained under 3 Comp. Laws 1929, § 12761 (Stat. Ann. § 25.118).
In his appeal from a decree for separate maintenance Gray argues that the Nevada decree of divorce can not be collaterally attacked and must receive full faith and credit in Michigan. He further insists that his wife did not sustain the burden of proof and that the awards of alimony and attorney fees are excessive.
The first of these questions received attention in People v. Dawell, 25 Mich. 247 (12 Am. Rep. 260). In a comprehensive opinion, written by Mr. Justice Cooley, this Court sustained a conviction of bigamy where the husband obtained a divorce in Indiana, either by collusion or fraud, from his wife when both of the parties were then living in Michigan. It is there stated (p. 256) :
‘ ‘ It has been held invariably, that a foreign judgment is open to be assailed by evidence showing a want of jurisdiction.”
The following observation from the Dawell Case is still applicable (pp. 257, 265):
' “But it is said that if the parties appear in the case, the question of jurisdiction is precluded. That might be so if the matter of divorce was one of private concern exclusively. But such is not the case under our laws, nor will it ever be until it comes to be understood that parties have the right to marry and unmarry at pleasure, and that if they choose to trade spouses, it is the concern of nobody but themselves. Such an understanding would require a considerable change in the existing laws of this State. As those laws now- are, there are three parties to every divorce proceeding; the husband, the wife, and the State; the first two parties -representing their respective interests as individuals; the State concerned to guard the morals of its citizens, by taking care that neither by collusion nor otherwise, shall divorce be allowed under such circumstances as to reduce marriage to a mere temporary arrangement of conscience or passion. * * " *
“To permit one of our own citizens who had obtained a decree of divorce abroad, to turn his wife out of doors in this State under it, would be scarcely less preposterous than to suffer a writ of possession to be executed in this State on a judgment in ejectment rendered abroad. If, however, the absurdity of the case were its worst feature, the public would be less concerned with it than they are now; but we can not shut our eyes to the fact, that these divorces are always fraudulent, are often obtained by perjury, in many cases are had secretly, and without any suspicion on the. part of one party that such a proceeding is being taken, and that they tend, in defiance of our laws, to make marriage a mere provisional arrangement, which the parties may break up at will. Moreover, the foreign court has no power to make such provisions for the wife and children as, in many cases, would be necessary to prevent their being thrown upon the charities of the world, and if it had, it would generally be kept in ignorance of the facts, and therefore incompetent to make such provision.”
Mr. Justice Cooley further said (p. 254):
“Now I understand the rule to be, that to give the courts of any State jurisdiction over the marriage relation between a husband and his wife, one of the parties, at least, must have a domicil within that State. Some of the judicial decisions make further requirements; but no court has ever held that any less could be demanded. It is, then, and must be, admitted on all hands, that while these parties had their residence within this State, the courts of Indiana had no authority to consider the question of divorcing them. That was a matter which pertained exclusively to the authorities of this State. _ Our legislation forbids plural marriages, but establishes exceedingly liberal regulations for divorce, under which parties who are wronged in their marriage relations are enabled to have them severed, on showing cause. But we do not think it conducive to good morals, or public decency, that married parties should be allowed to change spouses at discretion, or that a husband who had tired of his wife, whose charms perhaps had faded in the bearing and nursing of his children, should be at liberty at any time, by going through some formal proceeding in court, to turn her out of his doors, that he might supplant her with some fresher beauty. All our legislation has been framed in the belief that the marriage tie should be indissoluble, except upon cause shown; and of the sufficiency of this cause the parties themselves are not allowed to be the judges. This is the view that obtains in this State. It may be right, or it may be wrong. There have been those within the limits of the State who thought polygamy proper, and others who have believed that marriage should be only during the good pleasure of the parties; but the prevailing sentiment has condemned these notions as licentious and demoralizing, and has forbidden, under severe penalties, their practical realization within this State. If other States or countries hold different opinions, they can embody them in their own legislation, if they see fit; but it will be conceded that they have no right to invade our jurisdiction to right any wrongs which they may suppose to exist in our laws upon this subject. ’ ’
See, also, Reed v. Reed, 52 Mich. 117 (50 Am. Rep. 247); Van Inwagen v. Van Inwagen, 86 Mich. 333; and O’Dell v. Goff, 153 Mich. 643.
In Re Elliott’s Estate, 285 Mich. 579, we said, in rejecting the claim of nullity of a foreign divorce:
“All that appellee claims is that the testimony adduced before the North Dakota court was insufficient to warrant a finding by that court that the proponent had established a residence in North Dakota. While the courts of this State may, under proper circumstances, make an independent investigation of the facts in order to determine the question of whether a complainant in a foreign divorce proceeding was a bona fide resident of the foreign State, it is not the province of this Court to review findihgs, of fact made by a court of a sister State. ’ ’
That case and Pratt v. Miedema, 311 Mich. 64, are distinguishable from the instant case on their facts. In the former we held that there was no question that the moving party had established a domicile in the foreign jurisdiction. He went to Bismarck, North Dakota in the summer of 1907, with the intention of making it his permanent place of residence, homesteaded lands, and voted at elections thereafter. He did not secure his divorce until December of 1908, and did not remarry until 1927. In the latter case, after having been denied a divorce in 1941 in Michigan, plaintiff went to Nevada and there obtained a pro confesso decree, which was subsequently held invalid by the circuit court in Michigan. She then returned to Nevada, where a decree was granted her in 1943, in which case her husband appeared, filed an answer, offered proof, and raised the question of the validity of her domicile in Nevada. We therefore held that the alimony provisions of the Nevada decree were enforceable in Michigan, because defendant was bound by the decree in the cfise in which he had appeared.
The first question propounded in this appeal was exhaustively discussed in the recent cases of Williams v. North Carolina, 317 U. S. 287 (63 Sup. Ct. 207, 87 L. Ed. 279, 143 A. L. R. 1273), and Williams v. North Carolina, 325 U. S. 226 (65 Sup. Ct. 1092, 89 L. Ed. 1577, 157 A. L. R. 1366). See, also, In re Estate of Anna Holmes, 291 N. Y. 261 (52 N. E. [2d] 424, 150 A. L. R. 447), and Cohen v. Cohen, 319 Mass. 31 (64 N. E. [2d] 689, 163 A. L. R. 362), and, also, the authorities therein annotated.
There is no longer any question in the light of these authorities of the right of a State to inquire into and determine whether or not domicile was acquired in a foreign jurisdiction in which a divorce decree is granted.
Our review of the testimony requires the conclusion that defendant did not acquire a bona fide domicile in the State of Nevada, and that when he secured a pro confesso decree of divorce there in a proceeding in which his wife did not participate and in which she was not personally served with process, such decree is not entitled to full faith and credit in Michigan.
Furthermore, the District Court of the United States disposed of this matter in Gray v. Gray, supra, in accordance with the applicable law of Michigan, and no appeal was taken therefrom.
We have further examined the needs of plaintiff and the financial ability of defendant and conclude, as did the trial judge, that, in the light of the testimony presented, the sum of $50 per week is a proper amount for the defendant to pay for his wife’s support.
The services rendered by her attorney were both extensive and successful; and while the amount of time spent, viz., 533% hours out of eourt and 14% days in court, is considerable, any unnecessary effort on his part was due solely to defendant’s unwillingness to support his wife. If defendant could afford to secure a Nevada divorce, after having previously provided a separate home for the other woman and assumed the expense of her maintenance, there is no reason, in the light of his income as disclosed by this record, why he should not pay his wife the amount ordered, together with her attorney fees of $2,000.
We are mindful of the fact that, in order to sustain a decree in an action brought under 3 Comp. Laws 1929, § 12794 et seq. (Stat. Ann. § 25.211 et seq.) we must hold that, so far as this State is concerned, plaintiff and defendant are still legally husband and wife, and we so hold.
The decree of separate maintenance is affirmed, with costs to appellee.
Sharpe, Boyles, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred.
See Constitution of the United States, art. 4, § 1.—Reporter. | [
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North, J.
In this suit for specific performance of an agreement to sell real estate plaintiffs as purchasers had decree, and defendants have appealed.
As of October 1, 1945, defendants in writing accepted plaintiffs’ written offer to purchase the property in suit for $10,700. The written offer to purchase provided: “Time is the essence of this agreement.” It also provided for “possession on or before 60 days after date of closing,” which was to be “within 20 days after delivery of the abstract or policy of title insurance.” No question is raised as to the sufficiency of the written agreement or as to the regularity of its execution by the respective parties. Simultaneously with signing their offer to purchase plaintiffs paid to defendants’ agent $500 to apply on the purchase price. The defenses urged are: (1) That plaintiffs incident to their demand for performance of the agreement by defendants did not tender payment of the balance of the purchase price, nor was tender made when suit was brought; and (2) plaintiffs failed to show by competent testimony that within the period for closing the transaction they were ready and able to perform by paying the purchase price.
The record convincingly discloses that within the time provided for performance and before plaintiffs demanded performance, Mr. Hendrickson definitely informed plaintiffs that defendants would not surrender possession of the property. Under such circumstances a tender of the purchase price by plaintiffs would have been an idle ceremony and the fact that plaintiffs did not make such tender cannot be asserted as a defense. Upon filing- tlieir bill of complaint plaintiffs therein made* tender of performance in these words: “Plaintiffs * * have been and are now ready and willing to complete the transaction and carry ont on their part of the terms of said agreement.” Further, Mr. Hendrickson when testifying for defendants said: “I am not willing to now (to give possession to plaintiffs) because I haven’t any other place to go. * * * I did not refuse to deliver possession of the home (which is clearly contrary to the record). I do now.” Obviously if tender had been made it would not have been accepted, and as the trial court found: “That refusal (by defendants) to perform excused performance by the plaintiffs and excused tender of performance by the plaintiffs.” . \
‘ ‘ The trial court found that tender, if made, would have been refused, and there, is ample evidence to support this finding. * * *
“ ‘The law does not require a useless formality. A formal tender is not necessary where a party has shown by act or word that it would not be accepted, if made.’ Mahnk v. Blanchard, 233 App. Div. 555 (253 N. Y. Supp. 307).” Weinburgh v. Saier, 303 Mich. 640, 645.
As to plaintiffs’ ability to perform, i. e., to pay the purchase price of $10,700, the record discloses the following. As above noted, at the time plaintiffs signed their offer to purchase they deposited with defendants’ agent, who negotiated the sale, $500 to be applied on the purchase price; and before plaintiffs demanded performance they had definitely arranged for a mortgage loan of $6,300, and before Mr. Hendrickson informed Mr. Hanesworth that defendants would not perform the contract, plaintiffs had consummated a sale of the property in which they were living. While the record does not disclose how much ready cash or other available means the Hanesworths received incident to the sale of their property, Mr. Hanesworth testified that within the time for performace he was ready, willing and able “to go through with your (his) part of the deal.” The record in the above respects stands uncontradicted. The trial court found that plaintiff established “their ability to perform.” There is no merit to the asserted defense that plaintiffs did not show by competent testimony their ability to perform within the terms of the sales agreement. .
The decree entered in the circuit court is affirmed, with costs.
Bttsi-inell, C. J., and Sharpe, Boyles, Reid, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Reid, J.
The individuals who are named as plaintiffs separately operate beauty parlors and are separately engaged as cosmetologists in the practice of hair dressing and it appears from the record that plaintiffs are duly licensed to so practice. Plaintiffs filed the bill of complaint to obtain an injunction restraining defendant State board of examiners of barbers from interfering with plaintiffs in the practice of their occupation and from collecting or attempting to -collect from plaintiffs, fees provided for in the act to regulate barbering and hair cutting, hereinafter referred to as the barbers act, being Act No. 382, Pub. Acts 1927 (2 Comp. Laws 1929, § 8691 et seq.), as amended by Act No. 307, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 8691-1 et seq., Stat. Ann. and Stat. Ann. 1947 Cum. Supp. § 18.91 et seq.). The lower court adopted plaintiffs’ theory as to the disputed construction of the statute but refused to issue the writ prayed for and dismissed the bill. From the decree, plaintiffs appeal. Defendant State board took a general cross appeal.
The Journeymen Barbers, Hairdressers and Cosmetologists’ International Union of America, A. F. of L., Local No. 552 of Detroit, Michigan, the United Master Barbers Association of Michigan, Inc., and the State Barbers Association of Michigan, a Michigan nonprofit corporation, upon leave granted in the lower court intervened as defendants. The interveners merely sought to defeat the purposes of the bill. Plaintiffs sought no relief as against the interveners.
Barbering and dressing of women’s hair are both ancient occupations. It is made to appear in this case that the clipping and thinning of women’s hair has always constituted a part of hair dressing from the earliest times. Long before the word “cosmetology” was employed, hair dressers, now sometimes called stylists, thinned and snipped women’s hair without regulation by the State. After the first enactment pertaining to barbers in 1899, and notwithstanding the several amendments to the barbers act, until 1943, a period of. 44 years, no systematic effort was made by the State barbers board to bring women’s hair stylists within the provisions of that act. Prior to 1943, cosmetologists and women’s hair stylists had not complied with the barbers act, and had not considered themselves as being within that act, and had not been threatened with prosecution if they did not comply with the provisions of that-act, excepting that some members of the defendant board claim sporadic efforts had been made to enforce the barbers act against the cosmetologists.
In 1943 defendant barbers board and its members sent a circular letter, exhibit No. 1, to cosmetologists licensed under the cosmetology act, threatening action against them unless they complied with the provisions of the barbers act. This was followed up by a similar letter, exhibit No. 2. The barbers board made complaints against hair stylists registered under the cosmetology act and prosecuted some of them for noncompliance with the barbers act.
Regulatory statutes under the police power have been adopted for the supervision of both occupations, barbering and cosmetology, by the State of Michigan. The barbers act was first enacted in 1899, being Act No. 212, Pub. Acts 1899, and it was thereafter followed by Act No. 235, Pub. Acts 1901 and. Act No. 387, Pub. Acts 1913 (2 Comp. Laws 1915, §§ 6828-6849). That earlier act, with its amendments, was repealed by Act No. 382, Pub. Acts 1927, which act was amended by Act No. 106, Pub. Acts 1933 and Act No. 307, Pub. Acts 1937. The first regulatory act applying to women’s hair stylists was enacted as the cosmetology act by Act No. 176, Pub. Acts 1931, and was amended by Act No. 323, Pub. Acts 1937 and Act No. 303, Pub. Acts 1945 (Comp. Laws Supp. 1940, 1945, § 8714-1 et seq., Stat. Ann. and Stat. Ann. 1946 Cum. Supp. § 18.131 et seq.).
Plaintiffs contend that, tlie cosmetology act under which they operate does not require a license from the defendant, State hoard to do hair dressing and hair styling as practiced by cosmetologists. Defendants contend that hair dressing and hair styling as practiced by cosmetologists is, in fact hair cutting within the meaning of the barbers act' and hence, a license by the State board of examiners of barbers to do such is necessary.
Section 2 (b) of the cosmetology act (Comp. Laws Supp. 1940, § 871A-2, Stat. Ann. 1946 Cum. Supp., §18.132) contains the following:
“The provisions of this act shall not authorize any registered cosmetologist to cut or clip the hair of any person unless he or she has first obtained a license to [do so] under the provisions of Act No. 382 of the Public Acts of 1927.’’
In construing the words, “cut or clip the hair of any person,” we must have in mind the following statement of what constitutes practicing the occupation of a barber, the doing of which without a barber’s license constitutes a violation of the barbers act. Section 18 of the act (2 Comp. Laws 1929, § 8708 [Stat. Ann. § 18.109]) contains the following:
“To shave, trim the beard or cut the hair of any person, or to perform any work customarily done by barbers as such, for hire or reward, shall be construed a's practicing the occupation of a barber within the meaning of this act. ’ ’
It will be noted that the cosmetologist who merely cuts or trims the hair of her lady customer as an incident to her work is not performing the worl? customarily done by a barber. The trial court held:
“To hold that such hair cutting, clipping, et cetera, as is incidental to hair dressing and hair styling, within the meaning of the cosmetology act, is hair cutting within the meaning of the barber act, would, in the court’s opinion do violence to the legislative intent expressed in both or either acts. * * * On.the other hand, when hair cutting, as practiced on the individual or on customers in general, becomes the important or main feature of the process, and not the incident thereto, then the requirements of section 2 (b) * * * [Comp. Laws Supp. 1940, § 8714-2, Stat. Ann. 1946 Cum. Supp. § 18:132] apply, and such operator must obtain a license in accordance with the aforementioned provision.”
We consider that the legislature intended that a licensed cosmetologist should be permitted to do all that cosmetologists customarily do in their regular and ordinary work but did not intend that a licensed cosmetologist should assume to do the work customarily and ordinarily done by a licensed barber.
Prevention of spread of communicable diseases is a matter that seems to be taken care of in both the barbers act and the cosmetology act, and there is no showing in the record of any need on account of public health or sanitation for requiring the licensed cosmetologist to be submitted to the requirements of the barbers act.
Defendants frankly call the court’s attention to a late Minnesota case, State v. DeGuile, 160 Minn. 191 (199 N. W. 569), where it was held that a woman conducting a beauty parlor could bob and cut women’s hair without violating the Minnesota barber statutes of 1921. Defendants further cite Johnson v. Ervin, 205 Minn. 84 (285 N. W. 77).
Plaintiffs claim that the barbers act if construed as contended for by defendant State board would violate the due process clauses of the Federal and State Constitutions. We do not adopt the construction of the barbers act contended for by defendant board; therefore, such claim of plaintiffs need not be considered nor decided in this case. As we construe the barbers act we find that that act does not violate the Federal or State Constitutions.
We conclude that it was not the intention of the legislature that a licensed cosmetologist should be considered guilty of a violation of the provisions of the barbers act merely because without a barber’s license she clips or trims hair as an incident to her work, if the clipping or trimming of hair is of the type that cosmetologists customarily and ordinarily do and is performed on the same customer and on the same occasion as other work such as is customarily done by a cosmetologist.
The trial judge came to a like conclusion but considered it not necessary to grant a writ of injunction. The defendant board had put out circulars threatening cosmetologists with prosecution for doing what we find the cosmetologists, duly licensed as such, had a lawful right to do. The defendant board acted outside of the sphere of its lawful activities and did not offer to discontinue its unlawful activities. It was subject to being enjoined and should be enjoined in the instant case.
Act No. 38, Pub. Acts 1947, which amended section 2 of Act No. 176, Pub. Acts 1931, as amended by Act No. 323, Pub. Acts 1937, could of course have no effect in determining the rights of the parties involved in this case as the rights of the parties stood at the time the suit was instituted, but would effectively dispose of the principal propositions advanced by the defendant board as far as concerns matters occurring after the effective date of said Act No. 38.
We may assume compliance with Act No. 38, Pub. Acts 1947, but cannot assume that defendants without injunction will certainly refrain from bringing any prosecutions for matters occurring before the effective date of Act No. 38, Pub. Acts 1947; therefore, an injunction may issue if found necessary.
We concur in the finding by the trial judge construing the act under which this suit was brought, Act No. 382, Pub. Acts 1927, as amended, but consider that a writ should issue if found necessary, forbidding the defendants from interfering with or molesting the plaintiffs in the lawful practice of their occupation of beautician, beauty operator and cosmetologist, including the cutting of women’s hair in connection therewith, and from attempting to collect from them the fees provided for in Act No. 382, Pub. Acts 1927, as amended.
The decree appealed from is reversed. A decree may be entered herein in accordance with this opinion and the'case is remanded to the trial court for further proceedings if found necessary. No costs are allowed, a question of public interest being involved.
Bushnell, C. J., and Sharpe, Boyles, North, Butzel, and Carr, JJ., concurred. Dethmers, J., did not sit.
Section 2 was amended by Act No. 323, Pub. Acts 1937. — Reporter. | [
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Nobti-i, J.
This is an automobile accident case in which plaintiff’s decedent, John Swartz, a pedestrian, sustained fatal injuries as the result of being struck by a Buick automobile owned by defendant, Henry Dahlqnist, Sr., and driven by his son, Henry Dahlqnist, Jr. On trial by jury plaintiff, administrator of the estate of John Swartz, deceased, had verdict; but on their motion for judgment non obstante veredicto, judgment for defendants was en tered by tbe court. Plaintiff has appealed. We herein refer to Henry Dahlquist, Jr., as the defendant ; and in disposing of the ease assume that he was guilty of actionable negligence. The principal issue is this: Was the circuit judge correct in holding plaintiff’s decedent was guilty of contributory negligence as a matter of law?
On the evening of January 20, 1942, about 7 o’clock, defendant was driving his father’s automobile in a southerly direction on South Saginaw street in the city of Pontiac. At the place of accident the street is 80 feet wide from curb to curb. In the center there are'double lines of streetcar tracks. The portion of the street occupied by these car tracks is paved with brick, and the remainder of the street is asphalt surfaced. Westerly of the brick paved portion there is room in the traveled portion of the street for three lines of cars, one for parked cars and two lanes for cars traveling in a southerly direction. At the time and place of the accident automobiles were parked along the westerly curb of the street. Defendant was driving in the lane next adjacent to the parked cars. The fair inference from the record is that he was proceeding somewhat in excess of the posted speed limit of 30 miles per hour. His car skidded upwards of 70 feet on a dry pavement. Defendant testified that he did not see plaintiff’s decedent until “he was about 10 feet, in front of my car. ’ ’
Plaintiff’s decedent was an able-bodied man 27 years of age. In crossing the street he was walking slowly in a westerly direction. He was not crossing at an intersection, but instead was crossing a short distance north of where the north line of Turk street, if extended, would cross South Saginaw street. However, Turk street which joins Saginaw street on the easterly side does not intersect the latter street. The undisputed testimony is that plaintiff’s decedent from tbe time he left tbe center of Saginaw street did not stop but instead continued walking slowly in a westerly direction.
. Francis Pubis, a witness for - plaintiff, was driving a motor vehicle on South Saginaw street in tbe same direction defendant was driving; and at tbe time of tbe accident/ was somewhere between 100 and 200 feet to tbe rear of defendant’s automobile. We quote bis testimony as to what be observed incident to tbe accident:
“I saw Mr. Swartz from tbe time I was on tbe railroad track (about 450 feet north of tbe point of accident) on South Saginaw street until be was bit. He was walking across tbe road from east to west. * * *
“And I saw this man down tbe street, down on South Saginaw and be was — when I first saw him we was at tbe railroad tracks, in tbe middle of tbe road, middle of South Saginaw and be started right on across and I never thought much about it. The car kept moving south and tbe man kept moving towards tbe car and I remember saying at tbe time ‘if that man doesn’t burry up, be is going to be bit’ and then be disappeared from view and I just forgot about it and just like that. (witness snapped bis finger) I saw him fly through the air. * * *
“Tbe Buick was driving in tbe right lane as close to tbe parked cars as practical. * * *
“He (Swartz) was walking from east to west.
“Q. Was there anything to prevent him from seeing tbe car approaching from tbe north?
“A. No. That is what I — -
“Q. At any time so far as you could see, did be stop as be was going from east to tbe west?
“A. No, be never stopped, I am certain. * * *
“Q. At any time did be change bis direction or bis course so far as you could see?
“A. No. There was nothing between us other than my truck and tbe Dahlquist car. Tbe man was in motion at all times that I saw him. He just seemed to be poking along. He was walking slowly across the road. * * *
“I am sure I saw him clearly. * '* * This man was just poking along. We (he) wasn’t creeping I don’t mean bnt he walked across the road slow. It wasn’t fast’. If the man had stopped or run across the road, he would have been safe. ’ ’
Another of plaintiff’s witnesses, Henry Howell, at the time of the accident was driving a motor vehicle south on Saginaw street somewhat at the rear of the Dahlquist and Pullis vehicles. In part he testified:
“I was driving approximately 30 miles an hour. Hearing a scream first called my attention to the accident. Following the scream I saw a man fall out from in front of a car, Mr. Swartz, as he was identified to me later. * * * He was lying east and west on the pavement; his body, his head towards the east and feet toward the west. * * * I would say he was lying in the third — just out of the second lane if there were lanes there. * * * When he struck he was thrown to the left, to the east. * * *
“Q. Now, the injured man said something to you there, did he not?
“A. That is right.
‘ ‘ Q. Could you put it in your own words to the jury just what the injured man said?
“A. The injured man said: ‘I didn’t see him.’
“I heard the driver of the car make a statement at the scene of the accident that he didn’t see the pedestrian and the pedestrian said he didn’t see the ear. ” i
A police officer who arrived at the scene shortly after the accident was called by plaintiff as a witness. In part he testified:
“The man (Swartz) on talking to him complained of pain and evidenced pain. He was not too clear as to what had hit him. In fact he didn’t know the car had struck him and could not recall exactly how he came to be struck. * * *
“The marks on the car are on the left of the center. ’ ’
We quote the following from defendant’s testimony :
“When I first saw the man he w-as walking. I was 10 or 15 feet from him. He was a foot or two to the left of the left front fender. The left front part of the bumper and hood just to the left of the center of the car, struck the man.”
Careful review of the record has disclosed no testimony which amplifies or materially conflicts with that above quoted. There is no testimony of confusing or distracting circumstances incident to the accident. Nor is there any testimony that plaintiff’s decedent made any observation for approaching traffic or that he took any other precaution for his own safety. Notwithstanding plaintiff’s contention to the contrary, since there were eyewitnesses to this accident, no presumption arises that plaintiff’s decedent exercised reasonable care when crossing the street. Pulford v. Mouw, 279 Mich. 376; Black v. Ambs, 307 Mich. 644. Construing the testimony most favorably to plaintiff, as we must on this appeal, we are unable to escape the conclusion that under the testimony produced at the trial plaintiff’s decedent was guilty of contributory negligence as a matter of law.
Plaintiff’s motion for a new trial was denied, and he urges that such denial constituted error. In his brief plaintiff in this respect presents only his claim of newly-discovered evidence, which consists of testimony which might be given on a new trial by Dick Keyes, who was a passenger in defendant’s car at the time of the accident. Plaintiff’s showing is that after the trial he discovered that Dick Keyes at the time of the accident made a statement to the prosecuting attorney as follows:
“Q. (By the prosecuting attorney) What direction was the man (plaintiff’s decedent) walking in?
“A. I tbink I saw him as soon as anyone. It looked as though he was going at an angle and going practically parallel with the cars. Going south and taking his time, going practically,south.”
The sole affidavit in support of the- motion for a new trial was made by one of plaintiff’s attorneys. In his affidavit he set forth: ‘ ‘ That the facts therein (in the motion for a new trial) stated are true as he verily believes.” In the motion a reason urged for granting the same is: “Because of certain newly-discovered testimony, discovered by the plaintiff since the trial of this cause.” But in the attorney’s affidavit in support of thé motion is the following: “Deponent further says that since the trial of said cause he has discovered certain testimony, of which he had no knowledge at the time of the trial of said cause.” Thus there is no showing under oath as to whether or not plaintiff at the time of the trial had knowledge of the so-called newly-discovered evidence or whether he had made a reasonably diligent effort to discover the mentioned testimony prior to the trial. Further, with the exception of the general statement that discovery was after the trial of the case, there is no showing as to when or under what circumstances the discovery was made. The motion was not accompanied by an affidavit of Dick Keyes as to what testimony he could give nor any explanation of the absence of such affidavit. Further, the record discloses that prior to the trial plaintiff’s attorneys were aware that the prosecuting attorney had taken one or more statements incident to this accident. This clearly appears from the cross-examination of defendant by plaintiff’s counsel from which we quote briefly:
‘‘Q. Henry, did you ever make a statement to anyone pertaining to this accident?
“A. Yes, sir. To the prosecutor.
“Q. Did you ever, have asked you this question and make this answer — ‘How far away from him were you when you first saw him? Answer, About 10 feet. He was about 10 feet in front of my car.’ ”
On a motion of this character the following is requisite: •
“To entitle one to a new trial upon this ground (of newly-discovered evidence) it should be- shown: First, that the evidence, and not merely its materiality, be newly discovered; second, that the evidence be not cumulative merely; third, that it be such as to render a different result probable on a retrial of the cause; fourth, that the party could not with reasonable diligence have discovered and produced it at the trial.” Marion v. Savin, 315 Mich. 448, 455, quoting Canfield v. City of Jackson, 112 Mich. 120.
We are not persuaded that if the above noted evidence were produced at a new trial a different result would probably be obtained. Nor can we conclude that plaintiff or his attorneys, to whom it was evidently known that the prosecuting attorney had taken statements of witnesses concerning the accident, exercised reasonable diligence. Had they done so they would have timely discovered the evidence offered in support of the motion. The circuit judge was not in error in denying plaintiff’s motion for a new trial.
The judgment entered in the circuit court is affirmed, with costs to appellees.
Bushnell, C. J., and Sharpe, Boyles, Reid, Dethmbrs, Butzel, and Carr, JJ., concurred. | [
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North, J.
Plaintiff, a Detroit real estate broker, brought this suit to recover commission on the basis of a nonexclusive listing given him by defendant for the sale of the 25-story National Bank Building in Detroit. The listing was in the form of a letter written by defendant to plaintiff, which reads:
“We wish to confirm our recent conversation with your representatives in which you were advised that we would pay a commission of 1% per cent, on the gross sale price of the property commonly known as the National Bank Building and located at the corner of Woodward Avenue and Cadillac Square, Detroit, Michigan.
“This property is listed for sale by us at $6,000,000. The commission will be paid to you only upon such sale as is actually produced by you, and in no sense.is this arrangement to be considered or construed as an exclusive listing or option.”
Simultaneously defendant delivered to plaintiff at his request, in the form of a letter, additional information, including statements as to manner of operation of the building, that a purchase would be on the basis of fee title of the property, subject to rental, tax, insurance, et cetera, to be adjusted as of the date of closing the sale, that defendant would retain its personal property located in the building, also the cash on hand in its operating corporation, accounts receivable, but would be responsible for its outstanding liabilities such as accounts payable. Therein was also given a list of some of the outstanding long-term leases, the rates of rental per square foot, and items of cost of operating the build ing. It was understood by plaintiff and tbe parties concerned in the later negotiations that the transaction included not only the sale of the real estate but also of an attendant going business.
On trial in the circuit court without a jury defendant had judgment. Plaintiff has appealed. Successful prosecution of plaintiff’s case required him to prove that he produced a purchaser ready, able and willing to -buy on the terms of plaintiff’s listing or on terms agreeable to defendant; or, in the alternative, that the sale to plaintiff’s prospective purchaser was prevented by defendant’s bad-faith termination of pending negotiations. The circuit judge after hearing the case at length decided that plaintiff had failed in the above particulars and rendered judgment accordingly.
Plaintiff’s prospective purchaser was the General Realty & Utilities Corporation of New York. After the representatives of the defendant owner and of the prospective purchaser were brought together all negotiations were conducted directly between them without any participation on the part of plaintiff. While negotiations were pending and before the parties were able to agree upon all the essential terms of the sale the negotiations were terminated by defendant. On this appeal. plaintiff takes the position that “because defendant unreasonably thwarted the closing by selling the property to a third party while the negotiations for closing with the purchaser were still proceeding,” plaintiff is entitled to recover. Thus the issue squarely presented is this: Did defendant act within its legal rights when it terminated negotiations with plaintiff’s prospective purchaser on March 15 or 16, 1946?
Without implying that we. are in full accord therewith, we quote in a more amplified form plaintiff’s theory of his right to recover, as stated in his brief:
“1. Where a broker has been employed under a nonexclusive agreement and the broker has secured a prospective purchaser with whom the owner has commenced to negotiate, and the closing has proceeded to the point that general agreement is reached between the owner and the purchaser as to the price and terms of payment, the owner has the duty to the broker to deal fairly with the purchaser' in all details relating to the closing, so as not to unreasonably prevent its consummation,- and if the owner, while negotiations are still pending, sells the property to another without notice to broker or purchaser and without giving the purchaser an opportunity to close the broker is entitled to recover his commissions.
“2. Where the owner agrees with the purchaser to hold the property for him until a certain date and thereafter proceeds to close the sale and by act and deed extends the time thereof and then, while such closing is proceeding, without notice or further opportunity to the purchaser sells to a third person, the broker is entitled to recover his commission.”
An abbreviated statement of the factual situation is sufficient. Following contact brought about by plaintiff between defendant and the prospective purchaser, active negotiations looking to consummation of a sale began between the parties on March 8, 1946. While others in behalf of the respective parties participated in the negotiations, primarily defendant was represented by its president — Mr. Zur Schmiede, and the prospective buyer by Mr. Wagner. On March 8th, Wagner came from New York and negotiations were taken up in Detroit with Zur Schmiede. The latter agreed to hold the matter open until March 14th, to enable the purchaser’s board of directors to take action authorizing the prospective purchase; Such action was taken and Wagner, together with officers of the purchasing corporation, arrived in Detroit March 14th. That afternoon negotiations were resumed including a detailed consideration of a contract which had been prepared by attorney Klein of Detroit, who had been retained in this matter by the prospective purchaser. During the negotiations, which were continued until late that evening and were renewed the following afternoon, numerous controversial details of the sale developed and were discussed. For example, it developed that defendant did not have title to a portion of an alley over which its building had been constructed, that a Mr. Goldstone, who had inspected the building in behalf of the prospective purchaser, had discovered that the steel beams in a portion of the building were affected by a rust condition which it was thought might impair the structural integrity of the- building, that there was a question as to which of the parties should pay approximately $90,000 for extensive alterations required to meet the needs- of a prospective tenant, also a question as to possible cancellation of an outstanding contract for improvement of elevators in the building, and there developed disagreement as to how much time the prospective purchaser should have in which to examine and pass upon the abstract of title, but according to some testimony 20 days was finally agreed upon and it is not claimed that this latter controversial matter blocked a sale.
There can be no question but that at the close of the conference on March 15th the parties had as yet failed to agree upon important details of a contract for the sale. It was simply a case wherein negotiations were still in progress. Perhaps the issue which particularly stood in the way of consummating the sale was the rust condition of structural steel in the building. None 'of the parties seem to have had any reliable information at that time as to how se rious or how costly a matter was presented by this rust condition, or to what extent it impaired the structural strength of the building. At least the prospective buyer did not, and in consequence was unwilling to contract to accept the building “as is.” Mr. Wagner wanted to have an expert come from New York, in the light of whose judgment the prospective purchaser would determine whether or not it would assume the attendant risk. The negotiations were suspended in the afternoon of the 15th without the defendant herein consenting to the delay incident to procuring an inspection and report by the New York expert as to the condition of the building. As the matter stood at that stage of the negotiations it was still an open question as to whether the parties would be able to agree upon terms of a contract for the sale of the property. But the parties arranged that they would get together again at 9:30 on the morning of the 16th and continue the negotiations.
On March 13th, the defendant had received an offer from one Silberstein to purchase the property for $5,910,000, with a deposit which was good until noon of March 19th. On the evening of the 15th Zur Schmiede contacted Silberstein and made an appointment with him which resulted in the signing of a contract that evening, but dated March 16th, for the sale of the property “as is, in their present condition” to Silberstein for the price above noted. The following morning,. March 16th, Zur Schmiede went to the office of attorney Klein and informed him, and, also, the representatives of plaintiff’s prospective purchaser, who came to Klein’s office later, that the deal with the General Realty & Utilities Corporation of New York was off.
Thus the legal issue presented is as to whether, under the circumstances of this case, defendant in terminating negotiations with plaintiff’s prospective purchaser acted within its legal rights, or whether on the contrary, as plaintiff herein asserts, in discontinuing negotiations with plaintiff’s prospective purchaser defendant herein acted in bad faith, and thereby deprived plaintiff of a commission for the sale of this property to which he was lawfully entitled.
In passing upon the above issue it is important to have the following in mind. Defendant held title to the National Bank building merely as a liquidating trustee of the First National Bank of Detroit, and obviously its duty was to dispose of the property with reasonable promptness and on the most favorable terms obtainable.. In its sale to Silberstein defendant was not required to pay a commission. Hence, from a financial standpoint defendant neither gained nor lost by selling to Silberstein for $5,910,000 instead of to plaintiff’s prospective purchaser for $6,000,000, which would have incurred payment of a $90,000 commission. Hence, an inference of bad faith cánnot be drawn by assuming an attempt on defendant’s part to gain financially. While defendant did not inform-plaintiff’s prospective purchaser of Silberstein’s pending offer, nonetheless in the course of the negotiations plaintiff’s prospective purchaser was repeatedly advised of the necessity of prompt action. -For- example, Mr. Zur Schmiede on March 8th, said to Mr. Wagner, “we have people dealing on this property, and we just simply cannot overlook an opportunity to sell the building.” Defendant did not sell to a purchaser who in any sense was procured by plaintiff, and in that respect certain cases cited in plaintiff’s brief are not at all in point. A binding written memorandum of sale was never executed by plaintiff’s prospective purchaser and defendant, nor did plaintiff’s prospective purchaser ever even orally agree or offer to purchase on the terms of plaintiff’s listing. Instead the negotiations were on the basis of a sale including certain personal property of defendant which was expressly “excluded from the sale” under the “additional information” furnished plaintiff simultaneously with his listing. And it would seem that by having made the concession as to including such personal property defendant evidenced good faith in an effort to close the sale with the prospect produced by plaintiff. Nor can it be overlooked that the listing given by defendant to plaintiff expressly provided:
“The commission will be paid to you only upon such sale as is actually produced by you, and in no sense is this arrangement to be considered or construed as an exclusive listing or option.”
Without attempting to review or note all of the multiplicity of authorities bearing upon decision of cases of this type, we are content to note that in general terms the applicable law is as follows:
“If plaintiff (the broker) fully performed on his part and defendant’s malconduct rendered it impossible to make ‘settlement of the sale’ according to the land contract he had signed, he is estopped from taking advantage of his own wrong.” Greenberg v. Sakwinski, 211 Mich. 498, 504.
“In the absence of a contract providing otherwise, the nonconsummation of a transaction due to the fault of the principal does not deprive the broker of his right to compensation.” 12 C. J. S. p. 221.
“It is a rule of universal recognition that the principal must act in good faith toward the broker, and in the event of his failure to do so the broker will not be deprived of his commissions solely by reason of his employer’s breach of duty. * * * Thus, a broker’s right to the remuneration agreed upon is not defeated if his principal in wrongfully revoking his authority or in withdrawing the property offered for sale is actuated by the fraudulent motive of avoiding the payment thereof. * * * Nor can an employer prevent the recovery of commissions by changing the terms which were originally proposed to the broker and upon which the latter has secured a buyer.” 8 Am. Jur. p. 1066.
“In order that a revocation of a broker’s authority may defeat his right to commissions or'other compensation it must be made in good faith and not as a mere device to appropriate the benefit of his services and efforts and at the same time escape the payment of commissions earned or about to be earned.” 12 C. J. S. p. 151.
“It is a well-established rule of law that, when no time is agreed upon, a broker is entitled to a reasonable time in which to get results, and the principal cannot even revoke the authority within that time, unless it is done in good faith, and not to escape paying commissions.” Friedenwald v. Welch, 174 Mich. 399.
“Where no definite term is fixed by the contract of employment a real estate broker has a reasonable time in which to effect a sale. Thereafter the principal may terminate his authority and relieve himself from liability unless such action is taken in bad faith for the purpose of depriving the broker of the fruits of his labor when it was about to prove effectual.” Goodman v. Marcol, Inc. (syllabus), 261 N. Y. 188 (184 N. E. 755, 88 A. L. R. 714).
The foregoing seems to be largely summed up in the following:
“The right of a broker to a commission is fixed at the time of his discharge in good faith. It depends on whether he has done the thing he under took to do before Ms, authority was terminated. * * * As applied to the ordinary contract of employment to sell property, for which there is no consideration other than the commission to be paid the broker and which may be considered as a mere offer that does not become an enforceable contract until it is performed by the broker, the rule means that where the owner in good faith revokes the agency or authority or withdraws the offer before the broker procures a purchaser ready, willing and able to purchase on the owner’s terms, the broker is not entitled to compensation for procuring a purchaser thereafter or to a commission on a subsequent sale by the owner.
“Conversely, the owner cannot defeat the right of the broker to a commission or other compensation by terminating the agency after the broker has procured a purchaser ready, willing, and able to buy the property on the terms suggested by the owner and has communicated that fact to the owner.” 12 C. J. S. p. 150.
A meeting of minds between defendant and plaintiff’s prospective purchaser was never accomplished. As hereinbefore noted, active negotiations looking to the consummation of a sale to plaintiff’s prospective purchaser began on March 8th and were continued to and including March 15th, and defendant actively participated in such negotiations in an obviously good-faith effort to consummate a sale. "We think the conclusion is unavoidable that under the circumstances of this case plaintiff herein was given a reasonable time and opportunity within which to close the sale. Especially is this true since defendant had an offer from another prospective buyer which was good only until March 19th. If as much time were consumed with that prospective buyer as with plaintiff’s prospect in reaching an agreement as to details of the sale, the limited time, which in- eluded an intervening Sunday, to March 19th’ was fast expiring. As a matter of fact the record discloses that the ultimate sales contract with Silberstein was not finally consummated until March 18th.
It conclusively appears from this record that plaintiff did not produce a purchaser who was ready, willing and able to purchase the property on the terms of the listing given by defendant to plaintiff. The trial judge who heard and considered the testimony which is set forth in substantially 800 pages of the printed record, in his opinion said: “It is the court’s opinion that they-were no closer to a deal at that time (March 15th), if not further from a deal, than when they started, and that the plaintiff’s prospective purchaser, acting through Mr. Wagner, never at any time made any offer to buy on the defendant’s terms.” The record abundantly establishes the fact that in terminating the negotiations on the morning of March 16th with plaintiff’s prospective purchaser, defendant did not act in bad faith, nor in so doing was defendant motivated by a desire to avoid payment of a commission. As hereinbefore noted a savings of that character was not accomplished by defendant’s sale to Silberstein. Defendant did not reap any benefit from plaintiff’s efforts. In terminating the negotiations with plaintiff’s prospective purchaser defendant acted within its legal rights; and plaintiff, under the record in this case, is not entitled to recover.
In view of our conclusion herein it is unnecessary to pass upon defendant’s cross appeal. The judgment entered in the circuit court is affirmed, with costs to appellee.
Bushnell, C. J., and Sharpe, Boyles, Reid, Dethmers, Butzel, and Carr, JJ., concurred. | [
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North, J.
Corna Schondelmayer, plaintiff, is the son of Cathrin Schondelmayer and her deceased husband, Charles Schondelmayer. The relief sought is specific performance by defendant of an alleged agreement between her and her husband to make a joint mutual will, and injunctive relief whereby defendant would be restrained from disposing of property in violation of the terms of the alleged joint mutual will. Defendant and her husband signed the alleged joint mutual will, and so far as appears on the face of the instrument it was executed with all requisite formalities. The trial court granted the 'injunctive relief sought after having first adjudged and decreed as follows:
“That on the 14th day of March, 1942, Charles Schondelmayer, now deceased, and the said defendant, Cathrin Schondelmayer, executed a joint and mutual will which contains an agreement therein for the executing of a joint and mutual will, and that said will was duly executed and witnessed, and the court now finds that said will is a valid will, and that on the death of Charles Schondelmayer, said will became irrevocable by the survivor, defendant in this cause, Cathrin Schondelmayer.”
The defendant appealed. Subsequent to her appeal to this Court Mrs. Cathrin Schondelmayer died, and the appeal is now being prosecuted by the administrator of her estate who has been substituted of record as defendant. Notwithstanding such substitution we herein refer to Mrs. Schondelmayer as defendant and appellant. <
Other than above noted, the following statement of the factual background of this litigation is sufficient for decision in the instant case. At the time of making the alleged joint mutual will the issue of the marriage of Charles and Cathrin Schondelmayer consisted of three adult sons. By the terms of the testamentary instrument their son Conrad was to receive a designated farm subject to certain conditions ; a like provision as to another farm was made for their son Carner; and Corna, plaintiff herein, was to receive other designated real estate which included the home farm of Mr. and Mrs. Schondelmayer, and he was also to receive the balance of the estate of every description, subject however to the' provision in the will that: “The funeral expenses of the survivor, just debts, cost of markers and the expense of administration shall be paid out of his, Corna Schondelmayer, share of the estate.” The foregoing provisions of the will were made subject to ownership of all their property in the survivor of the testators. Title to the real property which the three sons were to receive was held jointly in entireties by Charles and Cathrin.
Subsequent to the execution of the testamentary instrument, the plaintiff herein and his wife moved onto the home farm of his parents. About a year later, February 11, 1945, Charles Schondelmayer died. Thereafter Cathrin continued to live on thq home farm with Corna and his family until Thanksgiving, 1946. She then went to live with her son Carner and was still living with him when this suit was heard in the trial court. Subsequent to Charles’ demise the testamentary instrument here in suit was read to the family. Later the instrument was received in\ probate court as the last will and testament of Charles Schondelmayer. However, the widow gave notice of her election to take under the statute rather than under the will. Her election so to do was accepted and approved by the probate court, but her right to so elect was challenged by Corna and that issue is still .pending on appeal to the circuit court.
About a year and a half after Charles Schondelmayer’s death, trouble arose in the household occupied by Cathrin and her son Corna. Ultimately litigation developed incident to which there were three suits. One of these suits was brought by Cathrin against Corna, one by Corna against Cathrin and his two brothers, and the other was incident to the probate court’s allowance of Cathrin’s election in her husband’s estate to take under the statute rather than under the will, from which holding of the probate court Corna appealed tó the circuit court as just above noted. However, we are not materially concerned with the litigation which preceded the instant suit brought by Corna in January, 1947, except as the record thus ’ discloses the hostile relations- existing between plaintiff and defendant herein and, hence, has a bearing upon their credibility as witnesses in this case.
Because it is somewhat pertinent to decision herein, it may also be noted that Cathrin, to some extent, accepted the benefits which accrued to her under the will. Shortly after the death of her husband, at her request, Corna took $4,000 from the safe in the home, and with the exception of $100, the sum so withdrawn from the safe, wherein her husband kept the money, was divided by her equally between the three sons. Cathrin also received $1,230 in payment of a mortgage, and divided this between her sons Carner and Conrad. And after her husband’s death she ceased to collect from Carner and Conrad the portion of the milk checks which prior to his death seemed to have been paid to Charles, and which items evidently w¿re a part of his estate.
Of the four questions presented in appellant’s brief the first two are as follows:
“1. Was the will executed March 14, 1942, by Cathrin Schondelmayer jointly with Charles Schondelmayer, a valid will as to Cathrin Schondelmayer?
“2. Was the will executed March 14, 1942, irrevocable on the death of Charles Schondelmayer, or at the time the will was.filed?”
The above questions do not, with strict accuracy, present the basic issue which will control decision herein. Instead that issue is this: Was the testamentary instrument here invoJved executed as their joint mutual will, by Cathrin and her husband in accordance with an agreement between them that it was their joint mutual will? In Eicholtz v. Grunewald, 313 Mich. 666, we said:
“However, the mere fact alone that two identical wills are made by husband and wife does not suffice to establish an oral agreement to make mutual reciprocal wills, each to be binding on the other. * * *
“ ‘It is contract to make joint and mutual will, not will itself, that is irrevocable by survivor after death of one party to it.' Keasey v. Engles (syllabus), 259 Mich. 178.”
And in Thompson on Wills (3d Ed.), p. 238, § 153, the author states:
“As a general rule, a mutual or joint will may be revoked by either of the comakers, provided it was not made in pursuance of a contract. But where such will has been executed in pursuance of a compact or agreement entered intp by the testators to devise their separate property to certain designated beneficiaries, subject tó a life estate or other interest in the survivor, it is generally held irrevocable when, upon the death of one, the survivor avails himself of the benefits of the devise in his favor. ’ ’
On this appeal we must first determine whether under the record the trial court was correct in decreeing that Charles and Cathrin Schondelmayer “executed a joint"and mutual will which contains an agreement therein for the executing of a joint and mutual will. ’ ’
"We are not in accord with appellant’s contention that a recital in the will itself of the agreement by the parties to constitute the instrument their joint mutual will is not competent evidence of such contract. The will involved in the instant case contains the following:
“It is hereby agreed that whichever is deceased first, be it Charles Schondelmayer hr Cathrin Schondelmayer, the survivor shall pay the funeral expenses and all just debts of either or both, and shall thereafter become the sole owner of any and all property owned by either or both of them. The said survivor shall live as he or she has been accustomed, using so much of the income or principal as may be necessary for his or her comfort of [or ?] convenience.
‘ ‘ This instrument is hereby declared to be the last will ,and testament of either, as the said survivor, and after the decease of the said survivor, the estate shall be divided as follows.”
Immediately following the foregoing, the will contains the provisions for the three sons as above noted. The words just above quoted from the will, which was solemnly executed by the respective parties, must be held to be competent evidence of an understanding and- agreement between the parties that after the death of one of them the will should be and remain the last will and testament of the survivor in accordance with the terms of which disposition should be made of the estate.
“A contract incorporating the mutual will of the parties is sufficient evidence of the agreement in pursuance of which the will was executed.
“Upon the death of one party to a contract to make mutual will, the agreement underlying the will becomes irrevocable and right of action to enforce it vested in the beneficiaries.” Getchell v. Tinker (syllabi), 291 Mich. 267.
But this record contains the testimony of Cathrin Schondelmayer wherein she states in substance that when she signed the instrument here in suit she did not know its contents. Obviously if such were the fact, Cathrin did not know of the contractual provision of the instrument just above quoted, and in that event there would not have been a meeting of minds between her and her husband and a valid contract to make a joint mutual will could not have resulted. In this respect the record presents a controlling issue of fact. In consequence thereof we review Cathrin’s testimony and other testimony on this phase of the case quite in detail. The following is from Cathrin’s testimony:
"Charlie nevef talked to me about drawing a will prior to his death. I never entered into any' agreement with my husband, Charlie, in regard to making a will for any certain or partial disposition of the property. There were papers signed and witnessed by people by the name of Fish, but I do not know what they were. I was not informed that I was signing a will at that time. * * *
“When Mr. and Mrs. Fish came to my house, I signed the paper but I did not know what I was signing. I did not read it; it was closed up so that I could not read it. I did not ask to read it, nor object to signing it. Charlie did not tell me what it was. * * *
“I did not know that there was a will signed by the Fish’s. * • •
“The will signed by Mr. and Mrs. Fish was read (to members of the family) after my husband’s death by Mr. Lynn. * * * :
“I will tell you the truth, I hated Lillian Schondelmayer (Coma’s wife).. * * * I hated Lillian Sehondelmayer from the time my boy married her. I tried to get along with her, some, but there was no use trying. * * * She often called me an old liar (and the record discloses Cathrin returned the compliment in like terms). We did not speak to each other for at least a year or more. * * *
“Q. Is it your claim that you have a right to dispose of the property in Middleville (the home farm) by will?
“A. I think I have. * * * I threatened to sell the farm home last fall after trouble arose between Coma and I; and I am going to sell it, too. ’ ’
Among other circumstances disclosed by the record tending to establish the incredibility of Cathrin’s testimony, we note the following:
Mrs. Neva Fish, who together with her husband, Harry J. Fish, were witnesses to the execution of the will, testified: “Mr. Sehondelmayer asked us to come up and witness them sign their will. ’ ’ While this statement was not made in defendant’s presence, nonetheless it is somewhát indicative that Mr. Schondelmayer was not seeking to suppress knowledge of the fact that the testamentary instrurbent was a joint will. And nothing appears in this record tending to disclose a reason why Charles Sehondelmayer might wish to keep from his wife full knowledge concerning the nature and contents of the will. The witness also testified:
“There was no conversation that I recall, about the will when I signed it. * * * Neither was there anything said that indicated Cathrin Schondelmayer did not know it was a will she was signing. * * * I would have known it was a will from the form. * * * I do not recall as anything was said, they simply got the papers around and signed them and we witnessed them. * * *
‘ ‘ The Court: Did Charlie Schondelmayer have the will in his pocket or where did it come from?
“A. They had it at the home.”
The other subscribing witness, Harry J. Fish, gave testimony much to the same effect as that above quoted, and further testified:
“They had some sort of a table or desk (in the dining room where the will was executed) and after he (Charles Schondelmayer) got his papers all spread out and all ready to sign, he signed them, as I recall, first. I do not know where he got the document. ’ ’
The foregoing testimony conflicts with defendant’s testimony that when the will was signed, “it was closed up so that I could not read it.” Nor, at least inferentially, does it check with defendant’s testimony, “There were papers signed a'nd witnessed, * * * but I do not know what they were. ’ ’
While advanced in years, Cathrin Schondelmayer, at least up to the time of her husband’s death, was an active woman. In her household affairs she informed her husband of needed supplies and he purchased them. She joined with him in counting nearly $5,000 which they had in the home, and in putting the money away for safe keeping. The record contains a lease in the execution of which Cathrin joined her husband. ’She had signed an earlier will which she testified was read to her and which was witnessed by two persons. While the record does not disclose who drafted the will here in suit, the instrument was there in the Schondelmayer household at the time Mr. and Mrs. Fish came to witness its execution, and Mrs. Fish testi fied: “They simply got the papers around and signed them and we witnessed them.” It would be difficult in considering this record as a whole to conclude that Cathrin did not know the nature of the transaction at the time the will was executed and the occasion for the presence of Mr. and Mrs. Fish; notwithstanding Cathrin’s testimony: “There were papers signed and witnessed by people by the name of Fish, but I do not know what they were.” The very paper Cathrin signed contained the usual witnessing clause wherein it is stated:
“On this 14th day of March, A.D., 1942, Charles Schondelmayer and Cathrin Schondelmayer * * * signed the foregoing instrument in our presence, and declared it to be- their last will and testament. ’ ’
Further, when subsequent to the death of Charles Schondelmayer, the will was read to the members of the family, Cathrin neither expressed disapproval nor surprise at the contractual provisions contained therein and hereinbefore quoted. Nor did she make any claim that she did not previously know that she and her husband had executed such a will. Her contention in that respect seems to have been an aftermath of the development of hostile relations between Cathrin and Corna and his wife.
Our review of this record brings the conclusion that the trial judge was correct in determining that the will in suit was the joint mutual will of Charles and Cathrin Schondelmayer, executed by them pursuant to their agreement so to do, and in consequence of the death of Charles Schondelmayer it was thereafter not subject to revocation. The decree entered in the circuit court is affirmed in the above respect, and also as to the injunctive relief therein granted. However our decision herein is not res judicata of the validity or invalidity of the will should it be contested in some other proceedings on grounds not involved in the instant case.
In a case wherein from a legal viewpoint the factual background was strikingly similar, we said:
. “There is no doubt but it is competent for a person to make a valid agreement binding himself to make a particular disposition of his property by last will and testament. (Citing numerous cases. See, also, Wright v. Wright, 99 Mich. 170 [23 L. R. A. 196]; Winchell v. Mixter, 316 Mich. 151, 163.) * * *
‘‘The nonfulfillment of this contract upon the part of Ann Carmichael (the surviving widow) would be a fraud which equity will not allow. Therefore it will decree the performance of the agreement upon Ann Carmichael, or take such steps qs shall be necessary to prevent her from violating her part of the contract in fraud of the rights of these complainants (beneficiaries under the will).” Carmichael v. Carmichael, 72 Mich. 76, 85 (1 L. R. A. 596, 16 Am. St. Rep. 528).
Because of our holding hereinbefore, and because the death of Cathrin Sckondelmayer while this appeal has been pending has rendered certain aspects of the case moot, there is no occasion for reviewing other questions presented in appellant’s brief. In view of the circumstafices just noted, a decree in accordance with our decision herein should be entered in this Court affirming the trial court’s decree in the particulars noted. Appellee will have costs of both courts.
Bushnell, C. J., and Sharpe, Boyles, Reid, Dethmers, Butzel, and Carr, JJ., concurred.
See Act No. 288, chap. 2, § 69, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-2[69], Stat. Ann. 1947 Cum. Supp. § 27.3178 [139]). — Reporter. | [
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Sharpe, J.
This is an appeal from an award of the compensation commission of the department of labor and ihdustry denying plaintiff compensation.
Plaintiff began employment with defendant company January 14, 1944, and was paid a weekly wage of $54.60. Prior to the above employment she had never suffered from any skin condition. Her job involved grinding tools and piston rings. In the course of her work, she came in contact with a soluble oil and steel dust. During the month of January, 1945, she developed an irritation on her arms and face. She was laid off from January 29, 1945, to February 12, 1945, during which period her rash cleared up; but when she returned to work her rash reappeared. On February 26, 1945, she left work and remained home until March 12, 1945, when she again returned to work but only for a day as the rash reappeared. She received compensation until May 21, 1945. On May 22,1945, she returned to defehdant’s plant but the company doctor refused to allow her to work in the machine shop. Plaintiff has not had any dermatitis since May 22, 1945.
Plaintiff filed her claim for compensation. The commission in denying an award said:
“The work done by the plaintiff while in the defendant’s employ would have to be classed as common labor or at best semiskilled work.. We do not believe that up to now, at least, it can be said that even with a sensitivity to oil and metal dust that this claimant could be said to be either partially or totally disabled in the common-labor market. ’ ’
Plaintiff urges that her hypersensitivity to oil and dust has so restricted her employment opportunities that she has become an “odd lot” or “nondescript” employee and entitled to compensation.
The department found that plaintiff was not disabled in the common-labor market. There is competent evidence to support such a finding of fact. She has operated a rewinding machine in a paper mill, trimmed the framework and interior of cars, operated ber own tailor sbop, and worked in a dollar store and drug store. Her capacity for work at common labor is not restricted except in shops where she comes in contact with oil and dnst.
The award of the department of labor and industry denying compensation is affirmed, with costs to defendants.
Bushnell, C. J.; and Boyles, Reid, North, Dethmers, Btjtzel, and Carr, JJ., concurred. | [
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Carr, J.
On November 8, 1934, defendant was appointed by the probate court of Wayne county as general administrator of the estate of Frank H. Addison, deceased. He continued to act in that capacity until November 14, 1940, at which time the court entered an order discharging the administrator, releasing his bond, and closing the estate. In accordance with provisions of the city charter personal property listed in the inventory filed by defendant was assessed for the years 1936, 1937 and 1938, the aggregate amount of the taxes being $834.80. Said taxes were not paid and, on September 6, 1945, the city brought suit against defendant to recover the amount thereof with interest. The declaration alleged that defendant became personally liable for the taxes “because of failure to pay same prior to the closing of the estate and the distribution of the assets thereof.” Defendant filed answer, pleading therein the statute of limitations, 3 Comp. Laws 1929, § 13976, as last amended by Act No. 72, Pub. Acts 1941 (Comp. Laws Supp. 1945, § 13976, Stat. Ann. 1947 Cum. Supp. § 27.605). Under the provisions of said statute all personal actions, with certain exceptions, are required to be commenced within six years after the causes therefor accrue. The limitation applies to suits of the character here involved. In re Atkinson’s Estate, 305 Mich. 323.
The trial court came to the conclusion, after listening to the proofs and arguments of the parties, that plaintiff’s theory was correct and that the right of action against defendant accrued at the time of final distribution of assets and the closing of the estate. It appears from the record that the assets of said estate were sufficiently large to permit payment of the taxes as they accrued. Judgment for plaintiff in the amount claimed was entered and defendant has appealed. It is his claim, in substance, that the running of the statute of limitations was not tolled by the probate court proceeding, that proceedings might have been brought prior to the closing of the estate for the purpose of enforcing payment of the taxes, and that, in consequence, the statute had run against plaintiff’s right of action against defendant at the time this suit was brought.
The assessments in question were made against “Frank H. Addison Estate, Edmund J. Stafford, Administrator, 1226 Dime Building, Detroit, Michigan. ’ ’ The form of the assessment is not challenged. It clearly indicated that the assessment was made against defendant, and in accordance with the provisions of the State statutes and the city charter.
Title 6, chap. 4, § 1, of the charter in effect when the taxes became due, provided as follows:
“All city taxes shall be due and payable on the 15th day of July in each year, and on that date shall become a lien on the property taxed. The owners or occupants or parties in interest to any real estate assessed hereunder shall be liable to pay such taxes, and all assessments levied in accordance herewith. The owners or persons in possession of any personal property shall pay all taxes assessed thereon.”
Section 26 of said chapter referred to the collection of taxes on personal property and read, in part, as follows:
“On and after the 26th day of August in each year and at any time until the taxes mentioned herein are paid, the city treasurer shall enforce the collection of all unpaid taxes which are assessed against the property or value other than real estate. If such taxes shall remain unpaid the city treasurer shall forthwith levy upon and sell at public auction the personal property of any person refusing or neglecting to pay such tax, or collect the same through the courts. * * * The city treasurer shall have power in the name of the city to prosecute any person or corporation refusing or neglecting to pay such taxes or any special assessment by a suit in the circuit court for the county of Wayne, and he shall have, use and take all lawful ways and means provided by law for the collection of debts to enforce the payment of any such tax or any special assessment. The .tax rolls or unit cards after the tax has been transferred thereto shall be prima facie evidence of the indebtedness of such person and the regularity of the proceedings by which such tax or assessment, was assessed and levied. All city taxes upon personal property shall become on said 15th day of July a lien thereon and so remain until paid, and no transfer of the personal property assessed shall operate to divest or destroy such lien. ’ ’
Provisions of like character are found in the general law of the State relating to the assessmént and collection of property taxes. 1 Comp. Laws 1929, § 3429, as amended by Act No. 38, Pub. Acts 1934 (1st Ex. Sess.) (Comp. Laws Supp. 1940, § 3429, Stat. Ann. § 7.81). The provisions of the general State tax law are applicable to cities and villages “where not inconsistent with their respective charters.” 1 Comp. Laws 1929, § 3500 (Stat. Ann. § 7.161) In re Atkinson’s Estate, supra; Standard Accident Insurance Co. v. City of Detroit, 307 Mich. 720. At the time of the assessment involved in this case, all personal property, with certain exceptions not material here, was required to be assessed to the owner in the township in which such owner was an inhabitant, on the second Monday of April of the year for which the assessment was made. 1 Comp. Laws 1929, § 3401 (Stat. Ann. § 7.13).
It was further provided in 1 Comp. Laws 1929, § 3402 (Stat. Ann. § 7.14), that:
“The personal property belonging to the estates of deceased persons, in the hands of the executors, administrators or trustees appointed under the last will and testament of such deceased person, or by any court of competent jurisdiction, shall be assessed to them in the township and in the school district where the deceased last dwelt, until they shall give notice to the supervisor or other assessing officer that the estate has been distributed to the legatees or beneficiaries or other persons entitled thereto. If such deceased was a nonresident of the State such property shall be assessed in the township where situated, to such executors, administrators or trustees or to the person in'possession.”
In accordance with the provisions of the State statute it was said in Michigan Trust Co. v. City of Grand Rapids, 262 Mich. 547, 550 (89 A. L. R. 840):
“The legal estate in personal property upon the death of the owner thereof, vests absolutely in his executor or administrator. Foote v. Foote, 61 Mich. 181.”
See, also, Parks v. Crippin-Norris, 101 Mich. 71; In re Reidy’s Estate, 164 Mich. 167.
The claim of defendant that an action might have been brought against him prior to the distribution of the assets of the estate and the closing thereof, to enforce collection of this tax, is based on the charter and statutory provisions above mentioned. It is insisted that the assessments were made against him personally and that, under the law, he was personally liable. Undoubtedly, he might have paid the taxes and then have asked in his accounting that the probate court credit him with such payment; or he might have petitioned the court for an order authorizing and directing him to pay the taxes out of the assets of the estate. It is doubtless true, also, that the plaintiff might have petitioned the probate court for an order directing payment of the taxes as a proper administration expense. The record discloses that plaintiff requested payment from defendant from time to' time but does not indicate any reason for the failure to make, or to enforce, such payment. The taxes having been assessed and levied after the death of the decedent, claims based thereon conld not have been properly filed against the estate.
In Township of Orion v. Axford, 112 Mich. 179, plaintiff, under date of February 10, 1896, brought suit to recover the amount of a tax assessed, for the year 1895, on certain personal property in the possession of defendant as administrator of the .estate of Diana L. Axford, deceased. Defendant was appointed as such administrator in October, 1894. The estate was settled and defendant discharged by order of the probate court on July 5, 1895. It was claimed on behalf of the plaintiff that the defendant had withheld distribution of the assets until after the making of the assessment and confirmation thereof by a board of review and then had brought about the closing of the estate in order to avoid payment of the tax. Plaintiff recovered judgment in the circuit court, which was affirmed by this Court on appeal. Statutory provisions analogous to those above cited were quoted, and the Court said:
‘‘ The plain provisions of these sections leave little room for construction. Manifestly, the executor is ‘the person to whom the tax is assessed,’ within the meaning of this section. Not only is this true, but there is no other person to whom the property can be assessed, in a case like the present, where no notice has been given that the estate has been distributed to the parties interested. - If, then, the tax cannot be recovered of the executor or administrator, it cannot be recovered at all; and such a legislative purpose is not to be inferred. It is idle to suggest that the township must resort to the method of filing a claim against the estate. First, this is not such a claim as constitutes a debt against the estate, within the statute requiring creditors to exhibit their claims before commissioners. See Croswell, Executors & Administrators, § 428; Schouler, Executors & Administrators, § 318. An equally conclusive an swer to this suggestion is that the tax was not spread, in this ease, until after the estate was distributed. The only way in which this statute can be made effective is to so construe it that the executor, when closing the estate, must provide for current taxes, or, being required to pay the taxes on the estate after distribution, must resort to the distributees for reimbursement.”
It is interesting to note that in the Township of Orion Case, the declaration was on the common counts in assumpsit. Plaintiff’s claim was apparently based on the theory that defendant was personally liable for the tax assessed on the property, and such was the claim of counsel for plaintiff in their briefs filed in this Court. It was not claimed that defendant’s action in distributing the assets of the estate was of such wrongful character, as to create a cause of action against him based thereon. The language above quoted from the opinion of Justice Montgomery may-not properly be construed as indicating that the judgment was sustained on any such basis. Obviously, the case was brought, tried in the circuit court, and submitted to this Court, on the theory that the tax was a debt for which the defendant was liable because the tax on the property had been properly assessed against him. With reference to assessments of personal property assets of an estate, see, also, Herrick v. City of Big Rapids, 53 Mich. 554; Avery v. Dewitt, 72 Mich. 25.
The right to bring an action against an executor or administrator, personally, to recover taxes assessed against personal property of an estate under statutory provisions similar to those of Michigan, and analogous to the charter provisions of the city of Detroit, has been upheld by the courts in other States. In Inhabitants of Dresden v. Bridge, 90 Me. 489 (38 Atl. 545), the court considered a provision of a statute declaring that: “The personal property of deceased persons in the hands of their executors or administrators not distributed, shall be assessed to the executors or administrators.” Like the Michigan statute, the statute of Maine provided that the procedure indicated should be followed until the distribution of the property and the giving of notice thereof to assessing officers. Commenting on the statute, it was said:
“Such assessment makes the executor or administrator personally liable for the tax. Being personally liable, a suit for the tax should be brought against him personally, and not against the property of the deceased in his hands. ’ ’
Recovery was, however, denied because the assessment yms found not to be in the form required by statute. Citing the Dresden Case, it was held in Inhabitants of Eliot v. Prime, 98 Me. 48 (56 Atl. 207), that the defendant executor was personally liable for the tax in question. A like result was reached in City of Rockland v. Farnsworth, 111 Me. 315 (89 Atl. 65).
In People v. Continental Illinois National Bank & Trust Co., 360 Ill. 454 (196 N. E. 515), suit was brought to recover from the defendant executor the amount of a tax levied on decedent’s personal property. The provisions of the Illinois statute involved were analpgous to those of Michigan, above cited. In sustaining the right of recovery it was said:
“An executor stands in the shoes of his testator with respect to his personal property, and his ownership of the property is but a continuation of the ownership of the decedent. This court has repeatedly held that in matters of taxation the legal representative, after his appointment and until the property is distributed, is regarded by the statute as the legal owner and possessor of the property of his decedent and is personally responsible for the taxes. ’ ’
Of similar import is Bogue v. Laughlin, 149 Wis. 271 (136 N. W. 606, 40 L. R. A. [N. S.] 927, Ann. Cas. 1913 C, 1367). See, also, State, Dilts, Prosecutor, v. Taylor, 57 N. J. Law, 369 (30 Atl. 599), and the annotations in 119 A. L. R. 405 etseq., and 131 A. L. R. 822 et seq.
Under the statutes of this State and the charter provisions of the city of Detroit relating to assessments on personal property and the collection of taxes so levied the assessments in question were properly made against defendant. He became personally liable therefor, and such liability was not postponed until the date of distribution of the assets and the closing of the estate. Suits to recover each assessment might have been instituted on the 26th day of August, or thereafter, of the year in which the assessment sought to be recovered was made. Such personal liability was not created by closing the estate without payment of the taxes, but logically, as held in Township of Orion v. Axford, supra, it continued beyond such action. If carried out to its logical conclusion plaintiff’s contention, if sustained, would mean that tax-collecting authorities may not enforce, by appropriate action, the payment of a tax assessed against personal property belonging to an estate and in the hands of the executor or administrator, until the distribution of assets and the closing of the estate. We do not think that this was the intention of the legislature in the enactment of statutes relating to the subject matter, nor do the charter provisions of the city of Detroit, involved in this case, suggest any such situation.
For the reasons indicated we conclude that the statute of limitations, having been properly pleaded, was a bar to recovery against defendant. The judg ment is, therefore, reversed and the ease remanded with directions to enter judgment in accordance herewith. Defendant may have costs.
Bushnell, O. J., and Sharpe, Boyles, Reid, North, Dethmers, and Butzel, JJ., concurred. | [
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Bowles, J.
Plaintiff, as executor of the estate of Norman McPherson, deceased, filed a bill of complaint in the circuit court for Oakland, county in chancery to recover from the defendant the proceeds of two joint bank accounts standing in the name of Norman McPherson and the defendant at the time of McPherson’s death. No 'question has- been raised that the plaintiff has an adequate remedy at law. Issue was joined in the case, proofs taken, and the trial court entered a decree:
“That the joint bank accounts * * * were so established merely for the convenience of the above deceased and that the statutory presumption relative to joint bank accounts has been overcome by testimony offered by the plaintiff, and further that the defendant herein has in no manner established any interest in, or right to said accounts, * * * that the plaintiff as executor of said deceased’s estate is entitled thereto, said accounts being in the amount of $5,646, and it further appearing said defendant, J. Joe Wessels, has heretofore withdrawn the funds in said accounts. * * * '
“It is ordered, adjudged and decreed that the joint bank accounts established by the above named deceased, Norman McPherson, * * * be and the same hereby are funds and property of the estate of the above deceased.”
The defendant, for reversal, claims that the plaintiff did not ‘ ‘ overcome the presumption of the statute;” that the result reached was contrary to the law and the evidence; and that certain evidence of statements alleged to have been made by the deceased to other persons not in the presence of the defendant were inadmissible, erroneously received, and relied upon by the trial court.
That part of the joint bank account statute material to the issue is as follows:.
“When,a deposit shall be made, in any bank by any person in the name of such depositor or any other person, and in form to be paid to either or the survivor of them, such deposits thereupon and any additions thereto, made by either of such persons, upon the making thereof, shall become the property of such persons as joint tenants, and the same to gether with all interest thereon, shall he held for the exclusive use of the persons so named and maybe paid to either during the lifetime of both, or to the survivor after the death of one of them, and such payment and the receipt or acquittance of the same to whom such payment is made shall be a valid and sufficient release and discharge to said banking institution for all payments made. on account of such deposits prior to the receipt by said bank of notice in writing not to pay such deposit in accordance with the terms thereof. * * *
“The making of the deposit in such form shall, in the absence of fraud or undue influence, be prima facie evidence, in any action or proceeding, to which either such banking institution or surviving depositor or depositors is a party, of the intention of such depositors to vest title to such deposit and the additions thereto in such survivor or survivors.” 3 Comp. Lays 1929, § 12063, as amended by Act No. 286, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 12063, Stat. Ann. 1943 Rev. § 23.303).
The concluding paragraph of the above section was added by Act No. 286, Pub. Acts 1937. However, in a ease involving the creation of a joint bank account under the statute in effect before said paragraph was added (See 3 Comp. Laws 1929, § 12063), this Court had held as follows:
“The creation of a joint bank account does not conclusively establish title in the. surviving depositor after the death of one of the depositors but merely creates a presumption of ownership in the survivor rebuttable by competent evidence to the contrary (3 Comp. Laws 1929, § 12063).” Van’t Hof v. Jemison (syllabus), 291 Mich. 385.
The above conclusion has been followed in subsequent decisions.
“A rebuttable or prima facie presumption has no weight as evidence; it may establish a prima facie case, but, if challenged by rebutting evidence, the presumption cannot be weighed against the evidence, and upon introduction of supporting evidence, the actual evidence introduced is then weighed without giving any evidential force to the presumption itself.” Hill v. Hairston (syllabus), 299 Mich. 672.
To the same effect, see Allstaedt v. Ochs, 302 Mich. 232; Manufacturers National Bank v. Schirmer, 303 Mich. 598; Mitts v. Williams, 319 Mich. 417.
Appellant relies on Lau v. Lau, 304 Mich. 218. While some statements therein seemingly tend to support appellant’s position, contrary to the above conclusions of law, they must be read in connection with other statements of the law of the case, and the case is distinguishable from the case at bar by the facts. The controlling question in the instant case is the same as the controlling question in Mitts v. Williams, supra, stated therein as follows:
“The question in the instant case is therefore whether the competent evidence offered by’plaintiff on the trial was of such character as to establish with the requisite^ degree of certainty that the deposit was made in the names,of the parties jointly for the purpose claimed by plaintiff, and with the intention and understanding that defendant should have no interest therein.”
Defendant J. Joe Wessels, to support his claim at the hearing before the trial court, relied on the “presumption” created by the statute above quoted, and the testimony of one Steinbaugh, a business associate of the defendant as well as a friend of the deceased, who testified (without objection as to materiality) as follows:
“My full name is Albert Steinbaugh. I live at Fairwood avenue, Pleasant Ridge. My business_ is undertaking, funeral directing. I am associated with Mr. Wessels. Our business is located at 23257 Woodward avenue, Ferndale. I knew Norman McPherson in his lifetime. I presume I had known him close to 25 years. In the summer of 1945 he didn’t discuss with me any of his business affairs a great deal. Norman wasn’t so very much of a hand to say very much about his business. He had talked with me about making a joint bank account. That conversation took place at my office. I- don’t know that I can fix the time and date approximately when that took place, only I would imagine it was sometime in August. * * *
“Q. Did the question of the joint bank account come up later than that?
“A. Yes.
“Q. When did he talk about a joint bank account?
“A. Well, it was as I recall after his brother was buried, after the funeral. I don’t know how soon afterwards.
“Q. What did he say?
“A. Why he said ‘I made up my mind to go to Florida this winter and I want to put some money in the bank and when I get down there if I need any I want you to send me some. ’
“Q. What did you tell him?
“A. I says ‘Mac, I can’t help you becauseT am figuring on going to Florida myself this winter’ so that was all the conversation there was.
“I later learned he had made arrangements with Mr. Wessels about á joint bank account. I was present at a conversation between Mr. Wessels and Mr. McPherson about.the joint bank account. -
“Q. When was that?
“A. Well, later, I would say about two weeks after he came to me and wanted to put it jointly with me — I would say it was about two weeks.
“ Q. Can you give us any idea as to how long that was before he was killed?
“A. I think — that’s pretty hard for anyone to say.
“Q. It was during the summer of 1945?
“A. Oh, yes, sure.
“Q. Where did the conversation take place?
“A. In the office.
“Q. Tell us what was said?
“A. Well, as I recall it, Mac told me he had put it in jointly with Joe and Joe happened to be there in the office too and these may not be the exact words but as near as I can recall Wessels asked him ‘What will I do with the balance if you should die or anything’ and he said ‘I’d just as soon you would have it as anybody else. ’ ’ ’
Inasmuch as the above alleged statements were made by Mr. McPherson after the joint bank accounts in question were made, the testimony would have been, inadmissible, under, the ruling in Mitts v. Williams, supra, if objection thereto had been made.
On behalf of the plaintiff, the following facts and circumstances are undisputed:
Norman McPherson was an elderly widower, without children. His next of kin were a brother George and a sister Mary, both unmarried, residing in Ontario, Canada. In 1942 he executed a will bequeathing his property to his brother and sister, or to the survivor in the event one of them predeceased him. Plaintiff David C. Pence was named therein as executor. The deceased’s brother George died in July, 1945, and decedent himself was killed in an automobile accident in Ontario on September 27, 1945, while returning froip a visit to his sister. The aforesaid will was duly admitted to probate in Oakland county, and David C. Pence confirmed by the court as executor. Thereupon this bill in chancery was filed by said executor to recover the joint bank deposits which are the subject matter on this appeal.
At the hearing, the trial court admitted as evidence the testimony of a disinterested witness, as to statements made to her by the deceased both before and after the joint hank accounts were created, not in the presence of the defendant, concerning his money and his bank accounts. Appellánt insists that this evidence was hearsay and incompetent, and on that ground appellant mainly relies for reversal. There is no doubt but that the result reached by the trial court was to some extent based on the testimony which the appellant claims should not have been received.
In part, appellant relies on cases where testimony was excluded on the ground it was equally within th$ knowledge of the deceased. But the witness whose testimony appellant would exclude, under that rule, was not an “opposite party” within the inclusion of the statute, nor was such witness a surviving partner, an agent, or one who was in any way interested in the subject matter of the controversy. See 3 Comp. Laws 1929, §14219 (Stat. Ann. § 27.914).
“An opposite party, within the meaning of the statute barring testimony of opposite parties as to matters equally within the knowledge of a deceased person, is one whose personal and financial interests, either immediate or remote, are antagonistic to the like interests of the protected party (3 Comp. Laws 1929, § 14219).” Salsbury v. Sackrider (syllabus), 284 Mich. 493.
“Statute barring testimony of opposite parties upon matters which must have been equally within the knowledge of a deceased person does not exclude the testimony of third parties as to matters equally within the knowledge of the deceased and admission of testimony of a disinterested third party as to such matters does not permit admission of the testimony of a litigant whose interests are adverse to the estate of the deceased person (3 Comp. Laws 1929, § 14219).” In re Einfeldt’s Estate (syllabus), 286 Mich. 537.
The record discloses that the testimony of the disinterested witness which appellant claims was inadmissible showed statements made by the deceased to this witness not in the presence of the defendant, both before and after the deceased had made the joint bank account deposits here in question. The trial court received this testimony for the purpose of showing the decedent’s intentions and state of mind at the time the joint bank accounts were created, to rebut the statutory presumption. Said witness testified that the deceased, in discussing his bank accounts with her, made reference to his intention to leave his property to his sister Mary. To the extent that this testimony purported to disclose statements allegedly made by the deceased not in the presence of the defendant, after the joint bank deposits were made, and decedent’s statements made at that time referring to his will and his intentions in disposing of his property thereunder, the testimony of this witness was not admissible to show his intentions with reference to the deposits at the time they were made. On the other hand, much of the testimony adduced from this witness was admissible. It was proper to show the decedent’s intentions and arrangements prior to his making the joint bank accounts, to rebut the presumption of joint ownership between the deceased and the defendant. Mitts v. Williams, supra.
We have difficulty in determining from the record to what extent the testimony of said witness had reference to inadmissible statements made by the deceased subsequent to his making the joint bank deposits. The bank account books were not offered in evidence, but there is no doubt as to the dates when the joint accounts were made. The bill alleges, and the defendant’s answer admits, that on July 10, 1945, the deceased deposited $3,000 in the Manufacturers’ National Bank of Detroit, Highland Park branch, in a joint bank account with the defendant J. Joe Wessels, and that on July 11, 1945, he deposited $2,646 in the Wayne-Oakland Bank in the city of Boyal Oak, in a joint account with the defendant. But the record is. not plain as to the time of the several conversations between said witness and the decedent, whether they were before or after the above dates.
The controlling problem is to ascertain from the record before us the admissible testimony and from that source determine whether such testimony, added to the facts and circumstances of the case, when weighed against the testimony hereinbefore referred to adduced by the defendant, sufficiently proves plaintiff’s claim that the defendant has no right to the joint bank accounts. The statutory presumption disappeared when the testimony was received, and no longer weighs in the balance in determining the weight of the evidence. Nor do we need to consider those situations where the defendant would be entitled to the joint bank accounts as a gift inter vivos, Lumberg v. Commonwealth Bank, 295 Mich. 566, or a gift causa mortis, Loop v. DesAutell, 294 Mich. 527. The defendant makes no such claim, and there is no proof of a delivery of the bankbooks during the lifetime of the decedent. See Molenda v. Simonson, 307 Mich. 139.
Decision in the instant case hinges on the admissible testimony of one Mrs. Shiflett, a widow with whom Norman McPherson roomed and boarded beginning in May, 1945, about two months before he made the joint bank account deposits. He was unemployed, sómiretired, and “around the house a good bit.” Material to the issue here, she testified as follows:
“After he came to live with me I discussed with him business affairs. He started those conversations.
..“Q. And how long after he came to live at your house did these conversations yon tell about — mention — take place, when did they start?
“A. . Immediately.
“Q. Immediately after he got there?
“A. Before he came there.
“Q. They were discussed before he came?
“A. Yes.
‘ ‘ Q. Had you — did you ever discuss at .any time anything about any money he had?
“A. Yes. * * ’*
“Q. What was the subject matter of your first discussion about Mr. McPherson’s account?
“Mr. Eeitsch (defendant’s attorney): I object to the first discussion as not being sufficient identification of time and place.
‘ ‘ The Gourt: Fix the time and place.
“Q. When did you have your first discussion? You say he came in May?
“A. Yes.
“Q. Do you remember roughly the date?
“A. It was just after Y. J. day.
“Q. Pardon?
“A. Just after, the war was over, during the time I was helping to sell his furniture. I don’t remember the date. It was Somewhere around Y. day.
“Q. How long after that time did you have the discussion?
“A. Immediately. He had this money in the bank and wanted to take part of it to his sister. She was kind of taking care of his affairs and he went to see his sister and she could not take care of it, so he asked me if I might.
“Q. Asked you if you would take care of it for him?
“A. Yes, he did.
“Q. Your response to that was what?
“A. No.
“Q. Following that discussion did you have any further discussion with him about his bank account?
“A. He asked me — lie said lie didn’t want to leave it all in one bank and what I wonld do if it was mine and I said I wonld take part of it and pnt it in a couple of banks and he said which ones would you go to and I said I would take some to the National Bank at Highland Park and some to the Wayne-Oakland and he had some in Ferndale. Afterwards he told me he had.
“Q. Did you have a further discussion — anything about his establishing of these accounts?
“A. Yes, he told me he would like to have Mr. Steinbaugh take care of it. He wanted to go to Florida and wanted somebody to cash checks and deposit them and send money when he needed it after he got there if he got out of money and he wanted somebody to draw money and take care of his bills and expenses and he went to see Mr. Steinbaugh and I think Mr. Steinbaugh refused and later he came back- — he came back several days later and said to me — showed me the books and told me Joe had taken -it — that would be Mr. Wessels.
“Q. At this time did he say anything about what Mr. Wessels was to do with the money?
“Mr. Heitsch: I object to that as incompetent, irrelevant and immaterial.”
Under the rule laid down in Mitts v. Williams, supra, the objection should have been sustained, and we do not consider the further testimony of this witness. Statements made by Mr. McPherson after the joint bank deposits had been made, not in the presence of the defendant, were self-serving statements, hearsay, and inadmissible to show the state of mind and the intent of the deceased at the time the joint deposits were made. The same rule applies to statements made by the deceased after the joint bank accounts, were deposited, to the effect that he then said that his sister was to have his property.But in regard to the time when some of such statements were made, this witness testified:
‘ ‘ Q. Did you have any such conversation between May and tbe latter part of July, when he left?
“A. Yes.
“Q. Was that — when was that relative to the establishment of this bank account we are talking about?
“A. It was before and after. He always told me he wanted her to have it. # * *
“Q. Did you have any conversation with Mr. McPherson relative to what Mr. Wessels had told him about establishing this joint bank account?
“A. He said — he called him Joe — he said Joe said he would have to sign with him in order to get. the money to send to him or pay his bills.
“Q. He had. been talking about going to Florida?
“A. Yes, he had wrote and engaged a room.”
The circuit judge who saw and heard the witnesses concluded that the joint bank accounts were created merely for the convenience of the deceased, without any intention that the defendant should become entitled to the same. While this Court hears chancery cases de novo, we give consideration to the greater opportunity afforded the trial court who sees and hears the witnesses, and we do not reverse unless we would have reached an opposite conclusion. On weighing thfe testimony, we cannot say that-the court reached the wrong result. We conclude that the evidence entitled to consideration is of sufficient strength and clarity to establish plaintiff’s claim as to the intention and understanding of the parties with reference to the deposits. It follows that plaintiff is entitled to a decree for the amounts withdrawn by the defendant and the trial court so held.
The decree is affirmed, with costs to appellee.
Bushnell, C. J., and Sharpe, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Boyles, J.
Plaintiff herein, as a resident of Washtenaw county and one of the testamentary trustees of the estate of Alfred Lucking, deceased, the owner of real estate in the city of Ann Arbor, filed this bill of complaint in the circuit court for the county of Washtenaw in chancery, said to be on behalf of himself and all other taxpayers of said city, and naming as defendants the people of the State of Michigan, the regents of the university of Michigan, and the city of Ann Arbor. The prayer of the bill seeks the following relief:
That the board of regents of the university be es-topped from claiming that the lands, buildings and equipment of the. university within the city limits are exempt from taxation by said city; that said' property be placed upon the general tax rolls of said city; that the university hospital, the athletic buildings and stadium, the Michigan Union and the Michigan League buildings, and the Hill auditorium, not used solely for educational purposes, be placed upon said tax rolls; that an accounting of the purposes and uses and values of all other university property be had and that their taxability or nontaxability be determined by the court; that the defendants State of Michigan and regents of the university be required to account to the city of Ann Arbor for all sums of money expended since the enactment of the Michigan Constitution (1908) for the protection, support, upkeep and maintenance of the lands, buildings and equipment of the university within the corporate limits of said city of Ann Arbor, and that final “judgment” be entered therefor against the State of Michigan and said board of regents; that the State of Michigan and the said board of regents be enjoined from claiming any exemption from taxa tion in the future except as an educational corporation or institution, and then only as to such lands, buildings and equipment as are occupied and used solely for educational purposes; that the exemption from taxation by the city of Ann Arbor of the property of the university of Michigan within the city limits be decreed to be invalid as the taking of said city’s property and its taxpayers’ property without due process of law and without the equal protection of the laws; that the tax exemption statutes of the State of Michigan be adjudged to be unconstitutional as a violation of the 14th amendment of the Federal Constitution, and the Constitution of Michigan; that a “judgment” be entered against the people of the State of Michigan and the board of regents of the university in favor of the city of Ann Arbor for all sums expended by said city to maintain the university of Michigan since the effective date of the Michigan Constitution (1908); that the city of Ann Arbor be required to protect and enforce the rights and interests of the taxpayers of said city as against the people of the State of Michigan and the board of regents of the university; that the court require the people of the State of Michigan and the board of regents of the university to account to the plaintiff and the city of Ann Arbor for the reasonable value of all services furnished by said city to the people of the State of Michigan arid said board of regents since August 28, 1929; and that the court find by a declaratory “judgment” the rights of the plaintiff as an individual, and as representing the taxpayers, and enforce the same against the people of the State of Michigan, the regents of the university, and the city of Ann Arbor, by final judgment and injunction of the court.
On filing the bill of complaint, service of process on the people of the State of Michigan was made by serving summons on the governor and the attorney general. The attorney general, on behalf of the people of the State of Michigan, entered a special appearance and moved to set aside the service of process on the ground that the State could not be sued without its consent and that the State had not so consented. The board of regents of the university filed an answer in the form of a motion to dismiss the bill of complaint on the above ground, that the plaintiff was not authorized to institute the suit, and that the bill of complaint did not state facts sufficient to constitute a valid cause of action in equity or at law. The city of Ann Arbor did not file a motion to dismiss, but filed an answer to the bill of complaint, concluding with a prayer that the bill of complaint be dismissed.
Judge Robert M. Toms of the Wayne circuit court, sitting in the Washtenaw circuit, after hearing the motions and considering briefs filed, entered an order setting aside the service of process as to the people of the State of Michigan, and dismissing the bill of complaint both as to the defendant board of regents and the defendant people of the State of Michigan. The trial court held that inasmuch as no motion to dismiss had been made by the city of Ann Arbor, the cause would stand at issue as between the plaintiff and that municipality. From the aforesaid order of dismissal, the plaintiff appeals. The record here does not indicate what further action, if any, has been taken in the case against the city of Arm Arbor.
The bill of complaint, consisting of some 70 paragraphs, consists mainly in statements of law, conclusions therefrom, and arguments in relation thereto. However, well-pleaded material allegations of fact must be taken as true. The substance of the bill of complaint is that city of Ann Arbor is now and has been giving free fire and police protection and other city services to the property owned by the people of the State of Michigan, under the control of the board of regents, for which no compensation' has yet been paid to the said city of Ann Arbor; that the State of Michigan should pay into the treasury of the city of Ann Arbor as a reasonable value for such services at least $200,000 per year; that the regents of the university have received from said city the same fire protection and other city services as do all property owners and taxpayers, that the students in the university have received municipal advantages and facilities, including fire and police protection and the use and enjoyment of city parks and streets, transportation, lighting and water, the same as used by taxpayers of said city; that for those reasons the State of Michigan is estopped from claiming that the lands, buildings and equipment of the university of Michigan within said city limits are exempt from taxation by said city; that some of said lands, buildings and equipment are actually used and occupied, as noneducational facilities for profit-making purposes, that upwards of $20,000,000 of the assets of the university are unlawfully exempted from taxation of the city of Arm Arbor in that they are not occupied solely for educational purposes.
As to the defendant, the people of the State of Michigan, the controlling question here is whether this suit may be maintained by a taxpayer against the people of the State of Michigan without the express consent of the State to be sued, for the purpose of compelling the State to account to and pay the city of Ann Arbor for moneys expended by the city for police and fire protection and other services rendered by the city to the board of regents of the university. The answer is “No.” Cunningham v. Macon & Brunswick R. Co., 109 U. S. 446 (3 Sup. Ct. 292, 609, 27 L. Ed. 992); Hans v. Louisiana, 134 U. S. 1 (10 Sup. Ct. 504, 33 L. Ed. 842); United States v. Sherwood, 312 U. S. 584 (61 Sup. Ct. 767, 85 L. Ed. 1058); McDowell v. Warden of Michigan Reformatory at Ionia, 169 Mich. 332; Missouri Tie & Lumber Co. v. Sullivan, 275 Mich. 26; Manion v. State Highway Commissioner, 303 Mich. 1; Mead v. Michigan Public Service Commission, 303 Mich. 168; McNair v. State Highway Department, 305 Mich. 181.
The order of the circuit court setting aside the service of process on the governor and the attorney general and dismissing the bill of complaint as against the people of the State of Michigan as defendant is affirmed.
As to the board of regents of the university of Michigan as defendant, it is obvious that a money judgment cannot in this suit be lawfully entered against said defendant; and, if so entered, could not be enforced. It is equally obvious that if such relief were sought by writ of mandamus, such writ cannot issue in a chancery court and, furthermore, no circuit court has jurisdiction to issue a writ of mandamus against State officers such as the regents of the university. 3 Comp. Laws 1929, § 15186 (Stat. Ann. § 27.2230). The Michigan Constitution (1908), art. 11, § 5, provides that the board of regents shall have general supervision of the university and direction and control of all expenditures from the university funds. Appellant places much reliance on Act No. 98, § 1, Pub. Acts 1929 (1 Comp. Laws 1929, § 441), as amended by Act No. 214, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 441, Stat. Ann. 1947 Cum. Supp. § 4.191). However, this act is not mandatory but permissive only and merely authorizes the State administrative board, the board of regents of the university and other public agencies to contract for the furnishing of sewage and garbage disposal facilities, lights, water, fire protection, and other public facilities. The act does not form any basis for a decree to compel the board of regents to enter into such contracts.
The lands, buildings and equipment under the management, supervision and control of the board of regents of the university are public property, owned by the State of Michigan. Such public property belonging to the State is exempt from property tax. 1 Comp. Laws 1929, § 3395, as last amended by Act No. 24, Pub. Acts 1946 (1st Ex. Sess.) (Stat. Ann. 1947 Cum. Supp. § 7.7). Auditor General v. Regents of the University of Michigan, 83 Mich. 467 (10 L. R. A. 376); City of Detroit v. George, 214 Mich. 664; People, for use of Regents of the University of Michigan, v. Brooks, 224 Mich. 45; James A. Welch Co., Inc., v. State Land Office Board, 295 Mich. 85.
Appellant points to the Constitution (1908), art. 11, § 10, which provides that ‘ ‘ the legislature shall maintain the university, ’ ’ and from this argues that the court in chancery should compel the board of regents to account to the city of Ann Arbor for-moneys expended by the city for police and fire protection and other services provided by the city for the university property; or a fortiori that the city should be compelled to levy a tax on the State property under the control of the board of regents to provide for such services. Appellant’s argument that the legislature is not properly maintaining the university, perhaps might be addressed to the legislature. However, we do not conceive that it is within the province of the court in chancery to compel such action. As well stated by the trial judge, the arm of the chancellor may be long, but it is not that long.
Appellant devotes much time to argument that the statutes which exempt State-owned property under the control of the board of regents are unconstitutional. However, appellant does not point to any provision in either the United States Constitution or the Michigan Constitution (1908) which imposes any limitation upon the power of the State legislature to exempt property from taxation. The tax-levying authority of the State is vested in the legislature, and this necessarily includes the power to exempt property from taxation. Auditor General v. MacKinnon Boiler S Machine Co., 199 Mich. 489; Harsha v. City of Detroit, 261 Mich. 586 (90 A. L. R. 853).
The court has no power to compel the city of Ann Arbor to levy a tax upon State property within the control of the board of regents which the legislature has declared exempt from property taxation. The legislative classification of property into exempt and nonexempt categories does not in itself necessarily offend the due process or equal protection clauses of either the State or Federal Constitutions. 26 R. C. L. p. 253, 254, §§ 224, 225; Union Steam Pump Sales Co. v. Secretary of State, 216 Mich. 261; Banner Laundering Co. v. State Board of Tax Administration, 297 Mich. 419.
It is not for the court to consider the propriety of a contract between the city of Ann Arbor and the board of regents for the city to furnish police or fire protection or other public facilities for State property within the corporate limits. Nor is the city of Arm Arbor here before us seeking affirmative relief against the people of the State of Michigan or the board of regents. The plaintiff herein does not rep resent the municipality. The levying of municipal taxes is a matter of municipal prerogative and concern to be exercised by the proper authorities of the city of Ann Arbor. The court in chancery cannot substitute its judgment for that of the proper municipal authorities, or the board of regents, as to whether taxes should be levied or contracts entered into to provide for the furnishing of police facilities by the city. We are unable to conclude from the facts and circumstances alleged in appellant’s bill of complaint that either the appellant or the taxpayers of the city of Ann Arbor are being deprived of property without due’process of law. The relief sought by appellant does not come within the jurisdiction of a court of chancery, at least in so far as such relief is sought against the people of the State of Michigan or the board of regents of the university. Any issues between the plaintiff and the city of Ann Arbor are still pending in the circuit court and are not here for decision.
The order dismissing the bill of complaint as to said defendants is affirmed and the cases -remanded. No costs, questions of public interest being involved.
Bushnell, C. J., and Sharpe, Reid, North, Butzel, and Carr, JJ., concurred. Dethmers, J., did not sit.
See U. S. Const, am. 14; Mich. Const. 1908, art. 2, §16.—Reporter.
See U. S. Const. am. 14; Mich. Const. 1908, art. 2, § 1.—Reporter. | [
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Sharpe, J.
Plaintiffs filed a bill of complaint for the purpose of having the officers and officials of the city of Highland Park enjoined and restrained from enforcing a certain zoning ordinance of the city of Highland Park.
Tbe agreed facts are as follows: On October 1, 1942, plaintiffs, Max Fass and Mina Fass, bis wife, were engaged in tbe business of operating a retail poultry market at 14454 Oakland avenue in tbe city of Highland Park. In tbe operation of tbis market' plaintiffs killed, defeathered and dressed tbe poultry on tbe premises and completed tbe sale to tbe customer within a short period of time. Effective October 1, 1942, the city of Highland Park adopted a zoning ordinance, tbe purpose of which, among other things, was to establish districts wherein certain businesses would be permitted. For tbe purpose of tbis opinion we shall refer to manufacturing districts where tbe killing of poultry on tbe premises is permitted and business districts where tbe sale of poultry is permitted, but not including tbe killing of tbe same on tbe property. It appears that on or about July 19, 1943, plaintiffs became tbe owners of three lots located at tbe southeast corner of Oakland avenue and Six Mile road, a distance of approximately 2,000' feet north of plaintiffs ’ place of business known as 14454 .Oakland avenue; that tbe purchase price of these lots was $9,000; that on April 23, 1945, plaintiffs caused a letter to be addressed to L. C. Whitsit, city engineer of tbe city of Highland Park, requesting a permit to construct a building to be used for tbe sale at retail of dressed and live poultry only; that tbe board of zoning appeals gave an opinion that tbe proposed use of tbe building for tbe sale of dressed and live poultry only, but not including tbe killing of tbe same on tbe property, was a use permitted 'in a business district; that a building permit was issued to plaintiff Max Fass on July 23, 1945, which permit expressly provided that tbe killing of chickens on tbe property was not permitted; that plaintiff Mina Fass, under tbe name of McNichols Poultry Market, applied for and re ceived a license from the city clerk of Highland Park to sell dressed and/or live poultry, fresh.meats and sandwich meats at retail.; that this license was issued September 14, 1945, and a similar license was issued for the license year commencing May 1, 1946; that on November 19, 1945, plaintiff Mina Fass petitioned the city council of Highland Park to extend the license issued on September 14, 1945, to include the storage and killing óf poultry on the premises, which was denied by the city council; that-after plaintiffs received their license in September, 1945, for the sale of dressed and live poultry at the new location, Max Fass killed and dressed poultry on the premises of the McNichols Poultry Market; that on April 10, 1946, plaintiffs filed their bill of complaint for the purposes- hereinbefore mentioned; and that after said date plaintiff Max Fass took the live chickens, sold at the new location, down to the old location for killing and defeathering and brought them back to the new location, for delivery to the customer.
The cause came on for trial and the court found that the zoning ordinance ivas constitutional, valid and reasonable; that plaintiffs were conducting a generally recognized retail store in a business district not different from three other poultry markets in the business district of Highland Park; and that the killing, defeathering and dressing of poultry is instrumental and an integral part of the operation of a retail poultry market.
A decree was entered restraining the defendants from interfering with the operation and conduct of the retail poultry business of plaintiffs as to the killing, defeathering and .dressing of poultry on the premises of plaintiffs; decreeing that the proper officers of Highland Park shall not refuse to issue or renew licenses to plaintiffs for the year beginning May, 1947, and thereafter for the conduct of their retail poultry business; limited the number of chickens or other poultry that could be kept or killed upon the premises each day; and decreed that the killing, defeathering and-dressing of poultry is incidental to and an integral párt 'of plaintiffs ’ poultry business.
Defendants appeal and urge that the use of a poultry market where live fowl are kept, killed and scalded, defeathered and sold to retail customers on the premises is prohibited in the B-2 or business district as provided in the zoning ordinance of the city of Highland Park.
In coming to our conclusions in this controversy we have in mind that plaintiffs did not file a cross appeal, hence the constitutionality of the zoning ordinance is not an issue in this cause. Plaintiffs urge that the use made of the building is -an incidental and integral part of the operation of a poultry market.
A zoning ordinance must be construed reasonably with regard both to the objects sought to be attained and to the general structure of the ordinance as a whole. Under the zoning ordinance, B-2 or business district buildings may be used for generally recognized retail stores and shops for making merchandise to be sold on the premises. The zoning ordinance also provides under manufacturing districts: “Facilities for the handling and sale of poultry or game, including storage and killing of same, for sale on the premises exclusively'at retail, such use to be subject to the approval of the board.” From the above it was clearly the intent of the ordinance that the killing and defeathering of‘live poultry was to be confined to manufacturing districts and was not to be carried oh in business districts.
The record shows that plaintiffs are selling poultry at the rate of 2,000 per month; that there are only three poultry markets in the city of Highland Park similar to plaintiffs’ establishment where chickens are kept and killed and sold to retail customers; that at the time of the enactment of the zoning ordinance these three poultry markets had a license to kill and defeather poultry; and that between May 1, 1946, and May 1, 1947, there were 104 places in the city of Highland Park licensed to sell nieat and poultry which was killed and dressed in another place. The above facts do not sustain plaintiffs ’ claim that the killing and dressing of poultry is an incidental and integral part of the operation of a poultry- market. We are constrained to hold that the trial court was in error in holding that the use made of the premises was incidental and an integral part of plaintiffs’ retail poultry store.
The decree of the trial court is reversed. Plaintiffs’ bill of complaint is dismissed and the license granted plaintiff by the city of Highland Park can-celled. A decree will be entered in the Supreme Court in harmony with the above. Defendants may recover costs of both courts.
Bushnell, C. J., and Boyles, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Carr, J.
Plaintiff herein claims the right to recover from the State certain taxes paid by it for the calendar years 1940 to 1944, inclusive, on intangible personal property. The payments in question were made under the provisions of Act No. 301, Pub. Acts. 1939 (Comp. Laws Supp. 1940, § 3658-1 et seq., Stat. Ann. 1940 Cum. Supp. §7.556 [1] et seq.), the constitutionality of which was upheld by this Court in Shivel v. Kent County Treasurer, 295 Mich. 10. The act specifies the classes of intangible personal property subject thereto, provides the rates of taxation and method of computation, allows deductions in certain instances, and directs the manner of making returns and tax payments. It further provides that any taxpayer considering himself aggrieved by being required to pay an excessive tax may bring action in the circuit court of the county deemed to be the situs of the property subject to taxation-to recover any amount unlawfully levied. The present action has been brought under this provision.
The act of 1939, above cited, was amended by Act No. 233, Pub. Acts 1941, but without changing the provisions involved in the present controversy. It was also amended by Act No. 165, Pub. Acts 1945, and Act No. 175, Pub. Acts 1947. Such amendments, however, being subsequent to the period for which the taxes involved in this suit were paid, are material only to the extent that they may tend to throw light on the interpretation of pertinent provisions of the statute as enacted.
The statute included accounts receivable as intangible personal property subject to taxation in accordance with the procedure outlined. Section 3 (Comp. Laws Supp.1940, § 3658-3, Stat. Ann. 1940 Cum. Supp. § 7.556 [3]) made provision for certain deductions and exemptions in determining the amount of tax liability. Insofar as material to the present controversy, it read as follows:
“Sec. 3. Deductions and exemptions, (a) In computing the tax imposed under this act for any tax year the following deductions may be made: * * *
“(2) From accounts receivable, including notes given in lieu thereof, subject to tax under this act, accounts payable by the taxpayer, including notes given in lieu thereof, if such accounts payable or notes are incurred or given in connection with the business from which the accounts receivable or notes in lieu thereof are derived.”
The provision quoted was re-enacted in the amendment of 1941, above cited, and was in force and effect, by virtue of the original statute and said amendatory act, during the five-year period for which plaintiff paid the taxes that it now seeks to recover. Whether it is entitled to do so depends on the interpretation of section 3 (a), subsection 2.
The declaration alleged that during each of the years from 1940 to 1944, inclusive, plaintiff was indebted to various persons on outstanding mortgage bonds and long-term construction notes and that the amount of such liabilities greatly exceeded, in each year, its accounts receivable. With reference to such liabilities it was specifically averred as follows:
“All of said mortgage bonds and construction notes represented the funding of short-term bank borrowings and accounts payable incurred for labor and material required in building, and expanding plaintiff’s transmission lines, plants and equipment in order to make electric energy available to its customers. The indebtedness represented by said bonds and notes was incurred to enable plaintiff to produce tbe electricity, steam, gas and water sold to its customers from whom its accounts receivable are derived.”
Plaintiff based its cause of action on the theory that the bonds and notes in question were given by it in connection with the business from which, the accounts receivable were derived, and that in consequence they were deductible. The answer filed by defendants to the declaration in effect conceded the material facts alleged, but denied the conclusions of law. Thereupon plaintiff filed a motion for summary judgment, supported by affidavit of merits setting forth that during the period from 1915 to 1932, plaintiff paid out for additional operating plants and facilities the sum of $252,622,110.08, and that during such period general refunding bonds were issued in the sum of $134,000,000 face value. The affidavit further alleged that the entire proceeds of the sale of the bonds were used to pay for the “acquisition and construction of additional facilities for the manufacture and distribution of electricity, steam, gas and water.” It further appeared from the affidavit that during the period from 1932 to 1940, the said bonds were refunded, and that the new issues were outstanding .during the years involved in this controversy. Plaintiff claimed that it was entitled to deduct them from its accounts receivable.
The affidavit of merits also set forth liabilities incurred during the period from July 1, 1937, to December 31, 1939, in connection with the purchase of additional plant and equipment, and the issuance of $10,500,000 of construction notes which, by their terms, were payable on or before July 1, 1945, with specified annual payments. The funds derived from the construction notes were used to discharge obligations incurred in plant expansion. The affidavit further stated that “np part of the proceeds of the bonds and construction notes mentioned in the preceding paragraphs hereof was used to augment working capital or for any purpose other than to satisfy the company’s obligations incurred in plant expansion.” Plaintiff asserted that these construction notes were also deductible from its accounts receivable.
Defendants filed an affidavit in opposition to the motion for summary judgment, denying therein plaintiff’s claim that it was entitled to deduct the mortgage bonds and construction notes in question from its accounts receivable under the pertinent provision of the statute. Defendants also filed a motion for judgment on the pleadings, which motion was granted on hearing. Plaintiff has appealed.
Under Act No. 301, Pub. Acts 1939, as originally enacted, the administration thereof was vested in the State tax commission, which was authorized to adopt rules and regulations necessary for the administration of the act. In accordance with such authority, the commission, in November, 1940, adopted among other regulations Rule No. 9, which read as follows:
“Notes payable which represent current financing in the regular course of business of the taxpayer will be considered accounts payable under the act. However, notes which in fact represent long-term liabilities or capital financing will not be considered accounts payable.”
By Act No. 122, Pub. Acts, 1941, which was amended by Act No. 103, Pub. Acts 1945 (Comp. Laws Supp. 1945, § 3695-1 et seq., Stat. Ann. 1947 Cum. Supp. § 7.657 [1] et seq.), the administration of the act was transferred to the department of revenue which by its Rule No. 11 declared that:
‘ ‘ Only such obligations which in fact are accounts-payable, or notes given in lien thereof, under sections 3 (a-2) of the act are deductible as accounts payable.”
In Rule No. 25, effective December 31, 1943, the department further indicated its interpretation of the statute in the following language:
“An account payable is an obligation owing by a person on open account.
“The taxpayer may deduct from accounts receivable or notes given in lieu thereof the sum of his accounts payable or notes given in lieu thereof, provided the accounts payable or notes given in lieu thereof are incurred in or given in connection with the business from which said receivables are derived. To deduct notes payable from such receivables, the taxpayer must show that the note or notes payable were given in lieu of an account or accounts payable. ”
Presumably the defendants in refusing to permit, plaintiff to deduct its mortgage bonds and construction notes from its accounts receivable for the purpose of computing its taxes relied on these rules; It is their claim in the instant case, in substance, that said rules indicated the proper interpretation of the pertinent provisions of the statute. Plaintiff insists that the rules quoted were inconsistent with the legislative intent and were, in consequence, unauthorized. The language of the statute is, of course, controlling, although this Court recognizes that if such language is ambiguous the executive construction given to it by those charged with carrying out the will of the legislature is entitled to careful consideration. Boyer-Campbell Co. v. Fry, 271. Mich. 282 (98 A. L. R. 827); Detroit Board of Education v. Superintendent of Public Instruction, 304 Mich. 206; Aller v. Detroit Police Department Trial Board, 309 Mich. 382.
It is the duty of the court in interpreting the language of the statute in issue here to ascertain and declare the intention of the legislature. Kales v. City of Oak Park, 315 Mich. 266. That intent when so ascertained must control. In Acme Messenger Service Co. v. Unemployment Compensation Commission, 306 Mich. 704, it was said:
“In approaching the question of law involved, we do not consider the wisdom or the policy of the legislature in the enactment. People v. Powell, 280 Mich. 699 (111 A. L. R. 721). The function of the court is to apply the fundamental rules of statutory construction and thereby seek to determine the legislative intent. If the language of the statute is plain and unambiguous, no interpretation is necessary. In re Chamberlain’s Estate, 298 Mich. 278.”
In considering the question before us it must be borne in mind that the statutory provisions directly involved are not those in terms imposing taxes on accounts receivable or other forms of intangible personal property, but rather provisions allowing certain deductions from such accounts. In practical effect accounts receivable are exempt from taxation to the extent of the deductions therefrom authorized by the statute. As a general rule an éxemption from taxation is subject to a somewhat strict construction. It may not rest in inference or implication. It must be granted in clear and specific terms. Doane v. Railway Co., 247 Mich. 542; Remus v. City of Grand Rapids, 274 Mich. 577. The language of section 3 (a) (2), above quoted, clearly" indicates that the accounts receivable therein referred to, from which deductions are authorized, are such as have been derived by the taxpayer from his business. Construing the language used in connection with the other provisions of the act, and in the light of the general purpose sought to be accomplished, it clearly appears that-the legislature intended to tax that species of property represented by obligations owing to one engaged in conducting a business and derived from such business but to allow a deduction therefrom of obligations, whether in the form of open accounts or merged in notes, arising out of that business. It may be considered that the expression “in connection with,” standing alone, is somewhat lacking in certainty. However, the reference to the accounts receivable may properly be regarded as indicative of an intent on the part of the legislature to permit the deduction of accounts- payable arising from the same source as do the accounts receivable. Such interpretation is clearly in keeping with the general purpose suggested by the language employed. If the legislature had intended to permit a taxpayer to offset against the accounts received by him in the conduct of his business obligations that had been incurred in the erection of plants and facilities for the transaction of the business, it is fair to assume that such intent would have been indicated in clear terms. We think that the interpretation of the statute, contended for by plaintiff would mean increasing the permissible deductions, and thereby increasing the amount of the exemption, by the inclusion of obligations of a character not contemplated by the legislature. Such was the conclusion reached by the trial court in a well-reasoned opinion in which the practical consequences that would result from an acceptance of plaintiff’s theory were indicated in the following statement:
“In other words, no large corporation would pay intangible taxes on its accounts receivable as all of them have outstanding bond issues in a large amount of money. The court cannot believe that the legislature so intended, but did intend that accounts payable should be the accounts which are similar to the accounts listed in the accounts receivable. ’ ’
The trial court held accordingly that plaintiff’s mortgage bonds and construction notes, given for the purpose of increasing its capital assets, were not deductible from its accounts receivable. Applying well-recognized rules of statutory construction we think that the conclusion reached was correct.
Plaintiff calls attention to certain decisions of the State board of tax appeals, created by Act No. 122, Pub. Acts 1941, hereinbefore cited, in which, it is claimed, said board disapproved of Rule No. 9 of the State tax commission, and the subsequent rules 11 and 25 of the department of revenue. The decisions cited are Doty Discount Corp. v. Department of Revenue, decided February 17, 1943; E. M. Doty, Inc., v. Department of Revenue, decided June 2, 1943; and A. R. Glancy, Inc., v. Department of Revenue, decided February 3, 1944. Apparently in these cases the plaintiff corporations borrowed money for the purpose of carrying on their respective businesses and gave notes therefor. The status of bonds or notes given for capital financing was not in issue. However, in the first decision, the statement was made by the board of tax appeals that:
“It does not make any difference whether appellant’s payables constitute current or long-term or capital financing, because the intangible tax act makes no distinction between current and long-term .or capital financing. ’ ’
This statement was quoted in each of the opinions in the subsequent decisions cited. On the basis of the facts involved it may be questioned if the actual holding of the tax appeal hoard in any of these próceedings was at variance with that of the trial court in the case at bar. It is clear, however, that differences of opinion existed between the department of revenue and the tax appeal board with reference to the interpretation of the statute. The status of the appeal board was considered by this Court in F. M. Sibley Lumber Co. v. Department of Revenue, 311 Mich. 654, and it was pointed out that under the statute the board is “a tax collection agency” and not a judicial body. It is conceded by appellant that its decisions are not entitled to the. force and effect of judicial precedents. At most they are entitled to consideration on the basis of executive or administrative interpretations of statutory .provisions involved in. proceedings before the board. Statements that are merely dicta must be regarded, as above indicated, as expressions of opinion only. The issue in the case at bar must be determined by reference to the statutory provision above discussed. Rudolph Wurlitzer Co. v. State Foard of Tax Administration, 281 Mich. 558.
Plaintiff also emphasizes the amendment to section 3 (a) (2), above quoted, made by Act No. 165, Pub. Acts 1945. No change, except in phraseology, was made by the amendatory act in the language of the subsection as originally enacted in 1939. However, additions were made thereto so that after the taking effect of the amendatory act it read as follows:
“Sec. 3. Deductions and exemptions, (a) In computing'the tax imposed under this act for any tax year the following deductions may be made:
“(2) From accounts and notes receivable, subject to a tax under this act, accounts and notes payable by the taxpayer, if such accounts payable or notes are incurred or given in connection with the business from which the accounts receivable.,or notes are derived: Provided, That for the purpose of this provision, accounts payable shall include only current open trade accounts and shall not include dividends, taxes excepting those taxes levied upon or collected from persons other than the taxpayer and received or retained by the taxpayer for remission to a governmental agency, accruals, contingent liabilities or other similar items, and notes payable shall not include bonds, debentures or any obligations due more than 1 year after date of issuance. In case a taxpayer has both income-producing and nonincome-producing receivables the deductions shall first be made from nonincome-producing receivables and the balance, if any, may be deducted from income-producing receivables. For the purposes of this provision bank accounts shall not be considered as accounts receivable. For the purpose of this provision land contracts receivable shall be considered to be accounts receivable and mortgages payable on the same property covered by the land contract may be deducted therefrom.”
Said subsection, as quoted, was re-enacted without change in Act No. 175, Pub. Acts 1947. Based on the language added thereto by the 1945 amendment, counsel for plaintiff argue that the legislature must be presumed to have intended to change the meaning of the subsection as it read prior to such amendment. In support of the contention reliance is placed on the decision of this Court in Lawrence Baking Co. v. Unemployment Compensation Commission, 308 Mich. 198. There, as in Bonifas-Gorman Lumber Co. v. Unemployment Compensation Commission, 313 Mich. 363, and other decisions of like import, it was recognized that a change by amendment in the phraseology of a statute is presumed to indicate, in the absence of a manifest intent to the contrary, a legislative purpose to change the meaning. In the case at bar, however, as before stated, no substantial change was actually made in the language the interpretation of which is controlling. The situation now before us is not analogous to the facts involved in the cases cited.
We are primarily concerned here with the intent of the legislature of 1939, in the enactment of the original statute, and of the legislature of 1941, which re-enacted, as above noted, the provisions under consideration. The opinion of the legislature ás to the interpretation of a statute, when clearly expressed, is entitled to the utmost respect. People v. Oakland County Treasurer, 312 Mich. 140. See, also, Iron Street Corp. v. Unemployment Compensation Commission, 305 Mich. 643, where it was said:
"The controlling test as to the meaning of a statutory provision is always the legislative intent when family ascertainable. But the 'intent’ referred to is the one entertained by the legislature at the time of the passage of the act, and not the intent expressed by a subsequent amendment. In the instant ease, to interpret the subsequent amendment as an indication of the legislature’s original intent would be mere speculation, not judicial construction.”
Defendants insist that the language incorporated in section 3 (a) (2) by the amendatory act of 1945 should be construed as declaratory of the legislative intent in the enactment of the original subsection. It is obviously true that the amendment was in accord with the rules and regulations of the State tax commission and the department of revenue, above quoted, insofar as the matter at issue in the present case is concerned. The practical situation existing at the time of the amendment concerned the divergent views- of the department of revenue and the tax appeal board, units of the tax-collecting machinery of the State. It is obvious that the department did not acquiesce in the views of the appeal board as expressed in the decisions of that board, above discussed. Rule No. 25, above quoted in part, effective December 31, 1943, was adopted after the decisión of the first two cases, and the third case was pending at the time. It was but natural that the legislature should" have undertaken to clarify the situation through and by.the use of clear and specific language. It is conceded that under the statute in its present form plaintiff is not entitled to deduct from its accounts receivable its mortgage bonds and construction notes issued in connection with the extension of its plants and facilities. There is much force in defendant’s contention that under the circumstances involved the legislature, in adopting the 1945 amendment, did not intend that its action should be construed as now claimed by plaintiff. It is significant, also, that the amendment to section 3 (a) (2), was subsequent to the opinions of the appeal board, and that the legislature did not in said amendment, or by action prior- thereto, indicate its disapproval of the rules adopted by the State tax commission and the department of revenue.
In 1 Sutherland Statutory Construction (3d Ed. 1943), p. 418, § 1931, it is said:
“If the amendment was enacted soon after controversies arose as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act — a formal change — rebutting the presumption of substantial change. ’ ’
See, also, Attorney General v. Lewis, 151 Mich. 81; Hambel v. Lowry, 264 Mo. 168 (174 S. W. 405); John Morrell & Co. v. Unemployment Compensation Commission, 69 S. D. 618 (13 N. W. [2d] 498).
In view of the factual situation existing at the time of the amendment it is a logical conclusion that the primary purpose of the legislature was, as above indicated, to clarify tbe statute because of tbe differences of opinion existing between tbe department of revenue and tbe board of tax appeals. Plaintiff’s claim as to tbe force and effect to be given tbe amendment is not tenable. Tbé presumption on wbicb sucb claim is based does not obtain.
For tbe reasons above stated tbe judgment of tbe trial court is affirmed. In view of tbe nature of tbe question involved no costs are allowed.
Bushnell, C. J., and Sharpe, Boyles, Reid, North, and Dethmers, JJ., concurred. Btjtzel, J., did not sit.
Comp. Laws Supp. 1945, § 3658-1 et seq.
Stat. Ann. 1947 Cum. Supp. § 7.556 (1) et seq.
3 Comp. Laws 1929, § 14260 (Stat. Ann. §27.989). | [
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Bushnell, C. J.
A decree of divorce was granted to plaintiff Harry A. Fischer on February 4, 1946. Defendant Dorothy B. Fischer was awarded the care, custody, and education of their 5-year-old son. Plaintiff was ordered to pay $6 per week for his support, maintenance, and care.
On May 9, 1947, defendant sought an amendment of the alimony provisions of the decree of divorce. Testimony on this issue was taken by the trial judge who heard the original cause. It was claimed by defendant that plaintiff testified at the original trial that he was earning only $30 per week. This he denied, and he also claimed that he is now earning less than at the time of trial. When the decree was entered the minor son was living with his mother in the country. They subsequently moved to Grand Rapids, where the boy has since attended school. The mother testified that she wanted the boy’s time occupied on Saturdays by talcing music lessons. She stated that, because of a fractured ankle, she was not financially able to properly care for him on $6 per week, and that their cost of living had increased. The joint farm property that was awarded to her had been recently rented for $23 per week.
At the conclusion of the testimony the trial judge stated that because of the conflicting claims he would “check the testimony over taken in the former case” adding, “I just don’t remember.” We are not provided with, any further statement by the trial judge as to the result of his investigation, other than that expressed in the modified decree entered on June 16, 1947, in which plaintiff was ordered to pay the sum of $12 per week.
Plaintiff’s appeal raises the single question of whether a proper showing was made by the. defendant to support the modification of the decree of divorce. Plaintiff’s testimony established that at the time of the original hearing he was earning about $70 per week, and that at the time of the subsequent hearing he was earning about $60 per week.
We recently said in Renn v. Renn, 318 Mich. 230:
“The increased cost of living affects plaintiff as adversely as it does defendant and applies with equal force to the cost of maintaining the child.”
The claimed inequity of the original decree does not of itself afford a basis for its modification. An application to modify a divorce decree is neither a rehearing of the original case nor a review of the equities. Sherman v. Kent, 223 Mich. 200.
The right to modification is preserved by 3 Comp. Laws 1929, §12748 (Stat. Ann. § 25.106), which reads:
“After a decree for alimony or other allowance, for the wife and children, or either of them, and also after a decree for the appointment of trustees, to receive and hold any property for the use of the wife or children as before provided, the court may, from time to time, on the petition of either of the parties, revise and alter such decree, respecting the amount of such alimony or allowance and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any decree respecting any of the said matters which such court might have made in the original suit. ’ ’
Notwithstanding the application was for the modification of a decree recently entered, nevertheless such modification-is within the trial court’s discretion. We have repeatedly held that we will not interfere with the exercise of that discretion unless it has been abused. Austin v. Austin, 308 Mich. 139, and authorities cited therein at page 142. See, also, Stalker v. Stalker, 313 Mich. 209; Billingsley v. Billingsley, 315 Mich. 417, and the quotation therein from Bialy v. Bialy, 167 Mich. 559, 565 (Ann. Cas. 1913A, 800). There is competent testimony to support the modified decree, and we cannot say, in the light of the record before us, that the trial judge abused his discretion.
• The modified decree is affirmed, with costs to appellee.
Sharpe, Boyles, Beid, North, Dethmers, Btttzel, and Carr, JJ., concurred. | [
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Butzel, J.
Because of the nature of the questions involved, it becomes necessary to set forth an unusually long statement of facts. Prior to November 6, 1939, George A. LeBlanc, appellee, was the owner of one half of the 1,000 shares of outstanding-common stock of the Beard Paper Company, one of the appellants, and of 75 shares of its preferred stock. The common stock has. a par value of $1 per share, and the preferred stock is $100 par value. The other 500 shares of common stock were owned by Donald' E. Beard, Ruth M. Beard, his former wife, and other members of the Beard family. LeBlanc and Beard ran the corporation as if it were a partnership and made withdrawals- for individual use without proper corporate action. Shortly prior to November 6, 1939, Beard represented to LeBlanc that if the corporation could interest one T. Kirk Hill of Los Angeles, California, allegedly a man of wealth and ability, in investing- in the corporation, its financial condition would be strengthened and its business enlarged. It was proposed that LeBlanc and Beard each sell half of their respective holdings of common stock to Hill. Appellee claims that it was also agreed that if such a transaction was entered into, Beard would reduce his salary from the corporation $100 per month and also pay an indebtedness which he owed for preferred stock within a year.
LeBlanc claims that it was on the strength of these representations and agreements that he sold 45 shares of his preferred stock and 251 shares of his common stock to Hill for par value. He also sold 7% shares of the preferred stock to Ruth M. Beard, and one share of common stock to Marion F. Dudek, who became treasurer of the corporation. LeBlanc transferred the balance of his common stock, 248 shares, to himself as trustee for his son, George Patrick LeBlanc, a minor. The book value of the common stock is not disclosed in the record.
Beard and members of his family also transferred 251 shares of common stock to Hill, and one share to Paul Dainty, who later became vice-president and then president of the company. Following these various transfers, the names of the stockholders and their holdings of common stock in the corporation were as follows: T. Kirk Hill, 502 shares; George A. LeBlanc in trust for George P. LeBlanc, 248 shares; Donald E. Beard, 10 shares; Ruth M. Beard, 238 shares; Paul Dainty, 1 share; Marion F. Dudek, 1 share.
On October 16, 1940, after holding the stock for slightly less than a year, Hill transferred his 502 shares of common stock and 45 shares of preferred stock, all of which stock had a par value of $5,002, to Ruth M. Beard. In an affidavit, Marion F. Dudek stated that shortly before and after this transfer, Donald E. Beard borrowed sums aggregating $5,000 from the corporation, but that these, loans, together with interest thereon, were repaid by Beard from time to time, the last payment having been made on June 24, 1943.
LeBlanc claims that the entire Hill transaction was nothing more than a maneuver by Beard to enable him and his family to become holders of more than 75 per cent, of the common stock and thus obtain absolute control of the corporation to the exclusion of LeBlanc’s interest. This claim is fortified by two letters written by Beard to LeBlanc. In the first letter, dated December 22, 1939, Beard said:
“We must admit, George, that you and I have taken thousands of dollars out of the company to promote our various other enterprises and investments, which should have stayed in the company as working capital. All this is over and we might as well realize-it, right down to the smallest detail.”
The other letter, dated January 31, 1941, is quite persuasive of Beard’s purposes. He said in it:
“I made up my mind that before 1939 was over that yóur voice in the affairs of the corporation would be very much in a minority.
“Now then, George, you might as well make up your mind to a few things. There is never going to be a salary for you and there is not ever going to be any division of profits to the common stockholders. ’ ’
On May 5, 1941, LeBlanc, as plaintiff, filed a bill in the Wayne circuit court in chancery against the corporation, Donald E. Beard, then president, Ruth M. Beard, chairman of the board and director, Paul Dainty, vice-president and director, Marion P. Dudek, treasurer and director, and Doris Willert, secretary and director. In his hill he set forth the various stock transfers, and alleged that Hill never participated in the activities of the corporation, nor was his connection of any benefit whatsoever to the corporation or its stockholders. He further alleged that the corporate management thus came under the complete domination of Donald E. Beard who thus was able to carry out his preconceived plan to deprive plaintiff of both past and future dividends; that were it not for such action plaintiff would have received $2,000 and upwards in dividends, and, also, dividends in the future which would aggregate many thousands of dollars. He further alleged that notwithstanding Beard’s promise that he would reduce his salary $100 per month in order to induceLeBlanc to sell to Hill, as a matter of fact he increased his salary and drew $4,193.43 more than he was entitled to.
He further alleged that Beard appropriated for himself large sums for traveling and entertaining-under the guise of spending it for the corporation. He further charged that during 1943, Beard withdrew from the corporation the sum of $6,900, and, in order to give such withdrawal the semblance of legitimacy, he directed the board of directors to pass a resolution authorizing loans to him up to and not to exceed $7,000.
He further charged that Beard in, the manner aforesaid, appropriated sums aggregating upwards of $13,000, which amount should be returned to the corporation for distribution to the stockholders. He alleged that because of the action of all of the directors in permitting such withdrawals they also should be held individually and jointly liable for Beard’s misappropriations; and further, because as a result of the legal proceedings instituted by him for the return of sueli moneys misappropriated, the condition of the corporation will be bettered, and he should be allowed his costs and expenses.
We have only given the gist of the charges in the bill of complaint, which prays for an accounting and the return to the corporation of all sums misappropriated, costs and attorneys’ fees, and the appointment of a receiver to receive and collect all assets belonging to the corporation, including .those recovered because of the misappropriations. It asks that the receiver be given the usual powers and authority of a receiver. It does not directly ask for the-return of the stock transferred by LeBlanc to Hill and obtained from the latter by Beard or his former wife with the moneys borrowed by Beard from the corporation, which, according to the treasurer, were repaid with interest. Following a motion to quash on. the ground that LeBlanc had transferred his stock to himself as trustee for George Patrick LeBlanc and was no longer interested, it was stipulated that the name of plaintiff be corrected and amended to read ‘ ‘ George A. LeBlanc in trust for George Patrick LeBlanc. ’ ’ An answer was filed denying the charges of misappropriation and the defendants expressly denied that they participated in any transaction which they did not honestly believe to be for the best interests of the corporation.
On the day defendants’ answer was filed, the corporation instituted a suit at law against LeBlanc to recover $2,000 because of LeBlanc’s alleged failure to keep up fire insurance on corporate property, by reason of whiph the company suffered a $2,000 fire loss which was not covered by insurance. An additional suit at law was brought by the corporation to recover $470.02 alleged to have been misappropriated by LeBlanc. In the latter case, recovery for the amount claimed was had before a justice of the peace for the city of Wyandotte. An appeal from this judgment was taken to the circuit court for the county of Wayne by LeBlanc.
Thus, there were two law suits and one chancery suit pending when the parties agreed to submit all their controversies to arbitration under the statute (3 Comp. Laws 1929, § 15394 et seq., as amended by Act No. 182, Pub. Acts 1941 (Comp. Laws Supp. 1945, § 15394, Stat. Ann. 1943. Rev. § 27.2483 et seq.). The arbitration agreement was entered into on .November 5, 1942. It sets forth the fact that three suits were pending between the parties, and it was agreed that the controversies involved therein were to be arbitrated in accordance with the statute above cited, and that a judgment or decree should be rendered in the Wayne circuit court on any award made. Unfortunately, instead of selecting impartial arbitrators, the respective attorneys for the parties were appointed to act in that capacity. They selected a Mr. Hosie to act as a third arbitrator. The three suits were discontinued by stipulation of the parties.
After a period of approximately four years had elapsed, an award was made and signed by Hosie and LeBlanc’s attorney and arbitrator. It was not signed by the arbitrator who at that time was attorney for Beard, et al., appellants, but it is not necessary under the statute that the award be unanimous.
The award held that there was no merit in either of the suits at law brought by the corporation, but that the charges made in LeBlanc’s equity suit had been proved. The allegation in the bill of complaint that Beard had received $4,193.43 in salary and bonuses more than he was entitled to was found to have been proved. Respecting the allegation that Beard had appropriated unto himself sums of money from the corporation for. traveling and entertain ment expenses which were not expended by him for such purposes, the arbitrators said:
“It cannot be disputed that Beard used and operated the corporation as if it were his own private business and undeniably he paid little attention to whether items for entertainment and traveling were for the benefit of the corporation or for himself, personally. It would require an exhaustive audit to discover the extent' of the diversion of corporation funds involved in said items, which audit the arbitrators have not the time to delve into.”
The arbitrators upheld LeBlanc’s claims that Beard had withdrawn $6,900 and upwards from the corporation during 1940 to which he was not entitled and that Beard had compelled the board of directors to pass a resolution authorizing loans to be made to him in amounts not to exceed $7,000. They also found that LeBlanc had proved the general allegation in the bill that by appropriating sums of money in the form of excessive salaries, bonuses, traveling and entertainment expenses, customers ’ commissions, and loans, the defendants had taken from and deprived the corporation of sums of money aggregating $13,000 and upwards. The award concluded as follows:
“The proofs show that at least $25,000 of the corporate (although we believe an exhaustive audit would show a larger diversion) funds and property were so converted, and except for the consummation of the above mentioned preconceived plan of said Beard, LeBlanc and he would have continued to be equal owners of-said business, therefore one-half of the total of funds and property so converted should belong to said LeBlanc.
“A receiver should be appointed for the .corporation by the proper court and this decision and award confirmed and judgment entered by said court in accordance with this decision and award.”
The decision and award of the arbitrators, pursuant to the arbitration agreement, was filed in the circuit court for the county" of Wayne in chancery and a motion was made to confirm the award. A motion to vacate the award was thereupon filed by the Beard interests, and the motions came on for hearing. After long arguments and the filing of various affidavits by interested parties, the trial judge stated that he would confirm the award. He also stated that he entertained some doubt as to his right to appoint a receiver in an arbitration proceeding under the statute, but in order that the entire matter could be presented to this Court, in the event of an appeal, he would appoint a receiver and fix his bond. He stated that the receiver was to qualify but not to act until the final decision by this Court.
It developed in the arguments and in an affidavit that the Beard Paper Company is now out of business, having sold out through the action of the stockholders after the Beard interests acquired the Hill stock.
We shall only pass upon a few of the many questions raised on appeal. The award must be vacated because it is not definite or final, and the arbitrators imperfectly executed their powers. The arbitration statute provides:
“Sec. 9. Any party complaining of such award, may move the court designated in such submission, to vacate the same, upon either of the following grounds: * * *
“4. That the arbitrators exceeded their powers', or that they so imperfectly executed them, that a mutual,- final and definite award on the subject matter submitted was not made.” (3 Comp. Laws 1929, §15402 [Stat. Ann. 1943 Rev. §27.2491].)
“Seo. 10. Any party to such submission, may also move the court designated therein to modify or correct such award, in the following cases:
“1. Where there is an evident miscalculation of .figures, or an evident mistake in the description of any person,’ thing or property referred to in such award.” (3 Comp. Laws 1929, §15403 [Stat. Ann. § 27.2492].)
There has been an evident miscalculation of figures. In the bill of complaint a misappropriation of $13,000 and upwards was charged, and in the decision and award of the arbitrators specific misappropriations totalling $13,093.43 were found proved. It was noted in the award that further misappropriations, for traveling and entertainment expenses, were made-, the amount of which could only be determined by an exhaustive audit, ‘ ‘ which audit the arbitrators have not the time to delve into.” The amount of the award is for “at least $25,000,” but nowhere in it is there a statement which, with any degree of definiteness, explains how the sum was arrived at. The award states that the true amount cannot be arrived at without an audit, which audit the arbitrators did not make. This would indicate that the amount of the award was arrived at through conjecture. Unfortunately, no record was kept of the testimony at the hearings conducted by the arbitrators, nor was this necessary, so that we are unable to refer to it to determine how the total amount of the award was arrived at. But even were we to hold that the amount of the award is sufficiently definite and correct, there is a more serious question. There is no way to determine from the award how much of it plaintiff is entitled to, or even that he is entitled to anything under it except by way of dividends. If the award is for corporate funds misappropriated by Beard, then it would seem proper that the amount of the award should be paid to the corporation and used to pay creditors, if there are any, and then to pay dividends to stockholders. The award said:
"Obviously, the moneys and property diverted by the actions of Beard and the directors dominated by him belonged to the corporation and its stockholders and should be returned to the rightful owners(Italics ours.)
It then went on to state that except for the consummation of Beard’s preconceived plan, "LeBlanc and he would have continued to be equal owners of said business, therefore one-half of the total of funds and property so converted shopld belong to said LeBlanc.” But thére is no finding that one-half of the Hill stock should be returned to LeBlanc, or what, if anything, he must pay to reacquire it. LeBlanc is the owner of record of only about 25 per cent, of the stock of the corporation. Such a stock holding would not entitle him to half of the funds and property misappropriated.
An affidavit of defendant Dainty states that he and all the other directors were under the complete domination of Beard; that on one occasion he was handed $740 by Beard with instructions'to deposit it in his (Dainty’s) bank account and at the same time was ordered to sign a cheek in the same amount drawn on his bank payable to Beard and/or his wife, whereupon he was handed a certificate for 740 shares of Beard Paper Company stock issued in his name and was ordered to sign a blank assignment on the reverse side. The affidavit states that Beard drew corporate funds to pay taxes on property not belonging to the corporation; that Beard stated in a letter that this was to be done ££ regardless of who likes it or who don’t-like it, these are my definite orders;” that Beard dictated the list of officers in ad vanee of the meetings, ordered that the minutes of the meetings be sent to him for examination and correction before being entered in the minute book, and even did this at one time although he was out of town when the meeting was held.
All these facts, including Beard’s letter of January 31, 1941, from which we quoted, indicates that Beard did have the preconceived plan of obtaining complete control of the corporation and did make illegal withdrawals of funds. The difficulty arises, however, from the fact that the award is indefinite and completely lacks finality. This fact is again illustrated by the record where the arbitrator for appellee, who was also his attorney, stated in argument :
“Now to say that there is a definite judgment for $25,000-or any other sum would be contrary to the award. * * * During the war we have been informed, * # * that great profits were made * # * and only a receiver can determine that.
“I will say this, that the liability of Beard and the others'in this matter may run considerably more than $25,000 or even $30,000 * * * and I do not think this court nor I can say that the ultimate liability of the corporation and Beard and the rest of them to LeBlanc is only a definite sum. We do not know what it is. We want the receiver to find it out. And when all these manipulations are gone into by the receiver who takes possession of the books and records, then we can find out what it is.”
The award leads the parties right back to the courts which they sought to avoid through arbitration proceedings. We find nothing whatsoever in the statutory arbitration proceedings that permits the appointment of a receiver and the continuation of protracted litigation. The trial judge expressed some doubt as to Ms right to appoint a receiver, and only appointed one so that this Court could pass upon the question. There is no reason why a proper audit could not have been made by the arbitrators. The award attempts to pass on to the court, ácting through a receiver, the duty to order an audit and thus consider the very questions that should have' been decided by the arbitrators. The award necessitates further court proceedings.
It is true that in affirming an award and entering judgment, the court has power to enforce the conditions of the award by ordering the transfer of, certain assets, et cetera, but there is no provision whatsoever for the appointment of a receiver with the duty to make an audit, et cetera. The statutory award in arbitration proceedings is very similar to that made in a common-law arbitration. We believe that the case of Mather v. Day, 106 Mich. 371, applies. In that case, we stated (quoting syllabus):
“Where an award of arbitrators leaves the amount due from one party to the other to be determined from an examination of certain books of account, and such accounts are so incomplete that the amount awarded cannot be computed therefrom without the aid of other evidence, the award' is void for uncertainty.”
“An award that is so uncertain and ambiguous in some of its parts that it cannot be enforced is void in toto, although sufficiently definite in other respects; and especially is this so in a case where it was the intent of the parties that all differences existing between them with reference to the subject-matter of the submission should be determined by the arbitrators.”
We are much impressed by the charges made by appellee as shown by the present record, and if they are true, lie should be entitled to the appointment of a receiver in an equity suit. See Miner v. Belle Isle Ice Co., 93 Mich. 97 (17 L. R. A. 412).
The award must be vacated, and the order of the circuit court reversed. We do not believe that much, if anything,, can be accomplished by resubmission of the questions to the arbitrators. The only way of properly disposing of the many questions involved with finality is in a suit in equity. The present proceedings were begun on the equity side of the court. The same subject-matter and the same parties would be involved in an equity suit, in which the appellee would be the plaintiff and the .appellants would be the defendants. It is, therefore, ordered that, without bringing a new action, the appellee may file a bill of complaint against the appellants within 30 days from the time that this decree is handed down, and that-appellants may have 15 days in which to answer. It is recommended that the case be set for immediate hearing’. If plaintiff deems it advisable, on proper motion he may add additional parties defendant.
An order will be entered in accordance with this opinion, but without costs.
Bushnell, C. J., and Sharpe, Reid, Dethmers, and Carr, JJ., concurred with Btjtzel, J. Boyles and North, JJ., concurred in the result. | [
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North, J.
This suit in chancery was brought by plaintiff, Clara Parkinson, both in her individual right and as administratrix of the estate of her husband, George Parkinson, deceased. Briefly stated, the only relief sought by plaintiff as to which the record contains any semblance of merit, is that certain United States savings bonds purchased by the deceased but payable to defendant, his daughter by a former marriage, or that the proceeds of the bonds, be decreed to be part of the assets of tbe George Parkinson "estate. Plaintiff’s claim to relief as stated in tbe prayer of ber amended bill is: “That tbe use of the funds amounting to $3,487.50 for the purchase of tbe bonds in tbe name of Frances M. Wood, was a fraud against tbe rights of Clara Parkinson.”
By her cross bill defendant sought delivery to her of the bonds by plaintiff on tbe theory that defendant was tbe owner of these bonds. Defendant and cross-plaintiff bad decree in tbe circuit court. Plaintiff has appealed.
The factuál background of tbe alleged fraud upon which plaintiff relies is as. follows. In May, 1943, George Parkinson sold a farm for $7,706.30. He agreed with plaintiff that if she would join in tbe conveyance (thus releasing ber right of dower) tbe proceeds from tbe sale would be deposited in their names in a joint bank account. The down payment of $2,395 was so deposited June 12, 1943 by plaintiff, and about a month thereafter Mr. Parkinson signed tbe card held by tb,e bank incident to tbe joint account. Tbe balance of tbe purchase price, $5,311.30 was paid to tbe bank cashier for Mr. Parkinson. It was never deposited in tbe joint account. Instead, at various times between July 27 and August 14, 1943, Mr. Parkinson purchased United States savings bonds in tbe amount of $4,650 for which be paid $3,487.50, evidently out of tbe money be bad received for tbe purchase of bis farm. Each of tbe bonds so purchased was made payable to defendant, Frances M., Wood. Tbe bonds were placed in a safety deposit box rented in 1927 by Mr. Parkinson and to which be and defendant each bad a key. No one except defendant and ber father bad access to tbe box; but defendant did not open tbe box during tbe time tbe bonds were depos ited therein. After the death of Mr. Parkinson these bonds were found in the safety deposit box.
Plaintiff claims that Mr. Parkinson perpetrated a fraud on her by securing her signature to the farm deed whereby she released her right of dower under their agreement that the purchase money received should be deposited in a joint bank account in their names, when, in fact, Mr. Parkinson did not so deposit the final payment, but used $3,487.50 thereof to purchase the bonds payable to the defendant. Plaintiff further claims that since defendant gave no consideration for the bonds and the deceased did not surrender possession or control of the bonds,” they should be decreed to be plaintiff’s property or assets of Mr. Parkinson’s estate, which will be shared equally by plaintiff and defendant, he having died intestate March 12, 1944. In connection with the above it is plaintiff’s claim that because of lack of delivery of the bonds a valid gift inter vivos was not consummated.
It is not claimed that the estate of Mr. Parkinson would be insolvent if the bonds in suit are not found to be included in the assets. Insofar as plaintiff asserts right of recovery on the ground of fraud perpetrated upon her by Mr. Parkinson, her claim for resultant damages would not give the equity court jurisdiction. As to that phase of her claim, plaintiff would have an adequate remedy at law, and recoyery could not be had in this suit in equity. The trial court so held. See Morten v. Zevalkink, 304 Mich. 572.
Our review de novo of this record brings the conclusion that decision can be and should be based on the sole question as to whether, under the circumstances of this case, title of these United States savings bonds passed to defendant. As appears from numerous judicial decisions, gifts of United States savings bonds are held to be valid under circumstances as to actual delivery which, if the gifts had been of ordinary choses in action, would not be sustained. This has come about in consequence of the provisions of the Federal law governing the issuance and payment of United States savings bonds.
While the question of validity of a gift on the ground of nondelivery was not involved, nonetheless because of the statement of the reasons in consequence of which gifts of United States savings bonds are sustained in the absence of delivery to the donee is so plainly set forth, we quote in full the head notes in Harvey v. Rackliffe, 141 Me. 169 (41 Atl. [2d] 455, 161 A. L. R. 296):
“Treasury regulations in respect to the transfer of United States war savings bonds are a proper exercise of the power given to the secretary of the treasury by the congress; and they accordingly have the force and effect of Federal law.
“Under the" provisions of the Federal Constitution congress has the power ‘to borrow money on the credit of the United States,’ and ‘to make all laws which shall be necessary and proper for carrying into execution’ this power. Article 6, clause 2, provides that these laws ‘shall be the supreme law of the land; and the judges'in every State shall be bound thereby. . . . ’
“The capacity of the Federal government to borrow money depends on, the inviolability of its obligation, on its ability to 'carry it out strictly in accordance with its terms. If the State may treat the bonds here involved, or the proceeds of their sale, as the property of some person other than the one whom the contract has designated, the govern ment has thereby been prevented from carrying out the agreement into which it has entered.
“In this case there was a contract with the United States for the benefit of a third party whose rights arise solely from the contract and in no sense by reason of a grant or gift; this contract gives the beneficiary a present, vested, though defeasible interest; it is governed by Federal law and must be enforced in accordance with its letter and its spirit uniformly throughout the United States; and no State statute or rule of law may stand in the way of such enforcement.
“Because of the supremacy of Federal law a State rule has no application to this contract.”
The issue of whether it is necessary to validly consummate the gift to the payee by another who purchased United States savings bonds that there must be delivery of the bonds is passed upon in Ibey v. Ibey, 93 N. H. 434 (43 Atl. [2d] 157). We quote from the head notes in the State report:
“United States government bonds purchased and made payable in the event of death to named beneficiaries are valid contracts for the benefit of third parties.
“A gift inter vivos may be perfected although no delivery is actually made where such gift is created by virtue of the terms of a savings bond of the United States government.”
In Myers v. Hardin, 208 Ark. 505 (186 S. W. [2d] 925), there was no delivery of the savings bonds to the payee named therein. The hqlding as expressed in the head note in the South Western Reporter is as follows:
“United States government bonds, issued to testatrix payable on death to various named beneficiaries and found in testatrix’ lockbox after her death, became the absolute property of beneficiary named in each immediately upon testatrix’ death provided beneficiary survived testatrix.”
In Inheritance Tax Division v. Chamberlin Estate, 21 Wash. (2d) 790 (153 Pac. [2d] 305, 156 A. L. R. 552), the holding of the court in the particular undeh consideration appears from the following head note:
“A gift of war savings bonds to the named payees was compléted at the time the donor furnished the consideration and directed the issuing officer to provide for the registration of the donees as owners of the bonds, even thoitgh the donor retained physical” possession of the bonds (which were found in his safety deposit box after his death), where it is clear that he intended to make the proceeds of the bonds available to the named payees.”
A holding by the Florida supreme court, in Re Briley’s Estate (April 6, 1945) reported in 155 Fla. 798 (21 South. [2d] 595), is in accord with.the above authorities.
In appellant’s brief numerous cases are cited to the point that delivery is essential to validity of a gift inter vivos; but with the exception of a single case about to be'noted, the cited cases do not involve gifts of United States savings bonds of the type and controlling terms here involved, and therefore are not here-in point. Appellant cites Deyo v. Adams, 178 Misc. 859 (36 N. Y. Supp. [2d] 734), (1942), holding, as stated in appellant’s brief, .“that the proceeds of United States savings bonds purchased in the name of the decedent, payable on his death to his sister, belonged to the estate for the reason that the transaction was invalid as a gift,” because decedent kept possession and control of the bonds. But the holding in the Deyo Case has been overruled, or at least is not in accord with a more recent, New York decision in Re Kalina’s Will, 184 Misc. 367 (53 N. Y. Snpp. [2d] 775), (1945), which, in harmony with the courts of other States hereinbefore noted, as stated in the syllabus holds:
“The right of beneficiary to enforce payment of nontransferable United States bonds upon registered owner’s death is superior to any expectant rights of registered owner’s surviving spouse.”
Our conclusion is that, under the circumstances of the instant case, George Parkinson by the purchase of the bonds in suit, made at his direction payable to defendant, consummated a gift of the bonds or the proceeds thereof to defendant. In reaching our conclusion we have deemed it unnecessary to refer to or rely upon Act No. 178, Pub. Acts 1945 (Comp. Laws Supp. 1945, § 9439-1, Stat. Ann. 1947 Cum. Supp. § 26.1261), which appellant contends cannot be retroactively applied in the instant case. Appellant’s contention in that respect is contrary to the holding in Re Kalina’s Will, supra. We do not herein pass upon that issue.
In part, appellant’s brief is devoted to the contention that on this appeal we should find a constructive trust in hex favor as to these savings bonds or the proceeds thereof. Plaintiff cannot be granted relief of that character for the reason, among others, that nothing relative to a trust is alleged in her bill of complaint nor is any such relief therein prayed. And under such circumstances, it is obvious that the case was not presented to the trial court on that claim or theory.
The decree entered in the circuit court is affirmed but with the proviso that our decision herein is not to be considered res judicata in any subsequent proceedings on the, law side of the court brought by plaintiff herein on the theory of fraud to which reference has herein been made. A decree will be entered in this Court accordingly. Appellee will have costs of this Court.
Bushnell, C. J., and Sharpe, Boyles, Reid, Dethmers, Butzel, and Carr, JJ., concurred.
See 31 USCA, § 757c.—Reporter. | [
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Dethmers, J.
Defendant Beese Jones is the owner of a bar operated uiider a class “C” liquor license. Defendant Indemnity Insurance Company is the surety on defendant Jones’ statutory bond filed with his application for the license.
During Jones’ absence and while a bartender employed by him was in charge of the place, plaintiff entered, ordered certain drinks and paid the waitress who served him. Thereafter he was served a drink which he claimed he had not ordered and for which he refused to pay the waitress. The bartender then attempted to collect from plaintiff and, upon his continued refusal to pay, struck him, causing plaintiff to lose the sight of an eye. Although the waitress testified that, in accord with the practice in the place, she-had paid the bartender for the drink before she served it to plaintiff, and while defendants claim that, in consequence, the bartender was acting as the agent of the waitress in attempting to collect from plaintiff, the undisputed testimony of this same waitress is that it was the bartender’s duty and responsibility and his uniform practice, as an employee of defendant, to see to it that patrons paid the waitresses for drinks served.
Upon trial the court dismissed the case against defendant Indemnity Insurance Company. The jury returned a verdict for plaintiff and against defendant Jones in the amount of $7,500. Defendant Jones appeals and plaintiff cross-appeals from the order dismissing as to defendant Indemnity Insurance Company.
’ Defendants’ brief, containing, under the, heading of “argument,” some 37 pages of testimony taken, page after page, from the printed record, is not too helpful to the Court. Under the heading of “questions involved” defendants list five questions, the first four of which inquire whether the court erred in refusing (1) to direct a verdict for defendant Jones at the close of plaintiff’s proofs, (2) to direct a verdict for defendant Jones at the close of defendants’ proofs, (3) to grant defendant Jones’ motion for a judgment non obstante veredicto, (4) to grant defendant Jones’ motion for a new trial.
As, a fifth question, involved, defendants ask whether the court erred in refusing to give two of defendants’ requests to charge. The first request was predicated on the assumption that the bartender struck plaintiff while acting as the agent of the waitress and outside the scope of his duties as defendant’s .employee.- The instructions given by the court fairly and adequately covered defendants’ claim in this respect, properly leaving it to the jury to determine the correctness of this claim under all the testimony on the subject. The second request was, in effect, that defendant as employer would not be liable for a blow struck by his employee, the bartender, in the course of an argument between the bartender and plaintiff. There was no testimony as to an argument between them independent of that attendant upon the bartender’s attempt to collect and plaintiff’s refusal .to pay. ./Consequently, and iu view of the undisputed testimony that the bartender was acting within the scope of his employment in seeking to enforce payment, defendants were not entitled to such instruction as requested.
As relates to the first four questions, the burden of defendants’ argument, as set forth in their brief, seems to be that defendant Jones was entitled to a directed verdict and thereafter to a judgment non obstante veredicto or a new trial because (1) the bartender struck in self-defense, .(2) the bartender’s act was willful and wanton and, therefore, outside the scope of his duties and authority as defendant’s em ployee, (3) the bartender was at the time acting as an agent of the waitress rather than of the defendant. These claims of the defendants were all fairly submitted to the jury under the court’s instructions. The jury evidently did not believe these claims. There is ample evidence to the contrary and the jury’s verdict, so far from being contrary to, is, in fact, supported by the great weight of the evidence.
As authority for the proposition that an employer is liable for injuries resulting from an assault inflicted by an employee while acting within the scope of his employment, see: Canton v. Grinnell, 138 Mich. 590; Zart v. Singer Sewing Machine. Co., 162 Mich. 387; Moffit v. White Sewing Machine Co., 214 Mich. 496.
Verdict and judgment for plaintiff against defendant Reese Jones are affirmed, with costs in both courts to plaintiff against said defendant.
The defendant Indemnity Insurance Company has executed defendant Jones’ appeal bond as surety. 'The question of,the defendant company’s liability as surety on the liquor bond having become, therefore, as plaintiff concedes, moot, we decline to consider it. Both defendants having been represented by the same attorney and defendant Indemnity .Insurance Company having filed no separate brief, no costs aré allowed to either that defendant or the plaintiff on the cross appeal.
Bushnell, C. J.,- and Sharpe, Boyles, Reid, North, Butzel, and Carr, JJ., concurred.
See Act No. 8, § 22, Pub. Acts 1933 (Ex. Sess.), as amended by Act No. 281, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 9209-37, Stat. Ann. 1947 Cum. Supp. § 18.993).—Reporter. | [
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Butzel, J.
Plaintiff, Paul A. Yampolsky, brought suit for damages for injuries sustained in an automobile accident that occurred at 1 o’clock in the afternoon of November 25, 1943. Upon the conclusion of plaintiff’s proofs before a jury, defendant moved for a directed verdict on the ground that plaintiff was guilty -of contributory negligence as a matter of law. Decision upon this motion was reserved by the trial judge under the Empson act (3 Comp. Laws 1929, §§ 14531-14534, as amended by Act No. 44, Pub. Acts 1939 [Comp. Laws Supp. 1940, § 14531, Stat. Ann. and Stat. Ann. 1947 Cum. Supp. §§ 27.1461-27.1464]). Defendant then put in his proofs, and the case was submitted to the jury, which returned a verdict for plaintiff for $1,625. Defendant thereupon filed a motion for judgment non obstante veredicto, and the trial judge granted it, ordering that judgment of no cause of action be entered for defendant. Plaintiff appeals from this order.
Notwithstanding some glaring inconsistencies in plaintiff’s testimony, we give it full credence in determining whether the motion for judgment non obstante veredicto was properly granted. According to plaintiff, the accident occurred as follows. Plaintiff was driving north on LaSalle boulevard in the city of Detroit, and defendant’s car, being driven by bis agent, was traveling west on Lothrop avenue, an intersecting street. The pavements were dry and the weather clear. LaSalle boulevard is about 40 feet wide, Lothrop is about 30 feet wide, and both streets are of equal importance. As plaintiff neared the intersection, he slowed down from 15 miles per hour to 7 or 8 miles per hour. He looked first to his left (west) and then to his right (east), and to the east he saw defendant’s car approaching 150 feet away at a speed of approximately 30 miles per hour. He made this observation when he was about 20 feet from the sidewalk line', which would place him about 45 to 50 feet from the center of the intersection. Plaintiff looked again to the east when he reached the intersection, and at that time defendant’s car was 100 feet away and had slowed down. Plaintiff testified that he concluded defendant’s driver intended to stop or slow down to yield the right of way to him, and that he proceeded to cross the intersection, accelerating his speed as he did so. When he reached the middle of the intersection, plaintiff looked ¿gain to the east and discovered defendant’s car bearing down on him about 35 or 40 feet, two car lengths away at 40 to 45 miles per hour. Plaintiff attempted to further accelerate his car and to swerve to the left to avoid a collision. It was too late to do so, however, and the accident occurred.
Plaintiff contends that under such circumstances the issue of his contributory negligence was a question for the jury, and that the trial judge erred in ruling that plaintiff was guilty of contributory negligence as a matter of law.
Plaintiff relies upon the rule followed in Stuck v. Tice, 291 Mich. 486, and Strong v. Kittenger, 300 Mich. 126. In Stuck Case we held that the issue of contributory negligence was properly submitted to the jury where it appeared that the driver of plaintiff’s vehicle had maintained a continual watchfulness, had proceeded at a constant rate of speed, and had seen defendant’s vehicle slow down so as to give the impression that it was either being brought to a stop or that it was going to be turned, there being a question of fact presented upon which reasonable minds might differ as to whether or not plaintiff acted prudently in proceeding across the intersection under such circumstances. In the Strong Case the same issue was presented and we adhered to our decision in Stuck v. Tice, supra.
The present case differs from both the cited cases in the following respect: In the instant case it appears from plaintiff’s own testimony that not only was the speed of defendant’s vehicle reduced as it approached the intersection, but also the speed of plaintiff’s vehicle was reduced. Plaintiff testified that he had been traveling 15 miles an hour, and that as he started to cross the intersection he was traveling only 7 or 8 miles an hour. The obvious inference is that he slowed down as he came up to the intersection. If the plaintiff slowed down, it would convey the same impression to the driver of defendant’s vehicle that the reduction in speed of defendant’s vehicle conveyed to plaintiff. Under such circumstances, the rule of Stuck v. Tice, and Strong v. Kittenger should not be applied.
De Vries v. Owens, 295 Mich. 522, another case in which the rule of Stuck v. Tice was applied, also differs from the case at bar in that there the plaintiff was proceeding on a through highway and defendant upon an intersecting road of inferior importance. Defendant had a duty to stop before entering upon or crossing the through highway. Plaintiff reduced his speed when he saw defendant approaching the intersection, and, when he saw defendant reduce the speed of his car as if to observe, the law and stop before entering upon the through highway, plaintiff resumed his previous rate of speed and proceeded into the intersection. "We held that plaintiff was not guilty of contributory negligence as a matter of law and that there was an issue of fact for the jury as to whether or not plaintiff acted in a reasonably prudent manner. In the instant case, neither of the streets on which the parties were traveling had a superior right of way over the other. In fact, it appears that defendant’s driver had the technical right of way under the statute (1 Comp. Laws 1929, § 4712 [Stat. Ann. § 9.1580]), she. being to the right of plaintiff as they each approached the intersection. For this reason, De Vries v. Owens is distinguishable.
Stuck v. Tice, supra, has frequently been quoted with approval by us as authority for another proposition than the one discussed above:
“Normally, * * * when two cars collide on a bright clear day at the intersection of thorough fares of equal importance, both drivers are to blame. * * * When two cars meet at an intersection, it becomes the duty of both drivers to slow down-and respect each other’s rights.”
See Ann Arbor Construction Co. v. Russ, 312 Mich. 527; DiMatteo v. Smith, 309 Mich. 640; and Stephens v. Koprowski, 295 Mich. 213. In the latter case we said:
“It is incumbent on driyers approaching an intersection to use care commensurate with the dangers reasonably to be anticipated.”
And in Block v. Peterson, 284 Mich. 88, we said:
“One is not free from contributory negligence who observes an automobile coming on the intersecting street and then proceeds to cross without giving further heed to the oncoming vehicle until the instant before or at the time of the collision. ’ ’
See, also, Sonfilian v. Wiedman, 291 Mich. 697.
In the instant case, if plaintiff had continued to observe defendant’s car after he looked at it the second time, he most certainly would have realized that a collision was imminent if he continued into the intersection. Traveling only 7 or 8 miles per hour, he could easily have brought his car to a stop short of the point where the collision occurred. Under such circumstances, we can only hold that plaintiff did not exercise that degree of care which a reasonably prudent person would have exercised, and that he was guilty of negligence which was a contributing cause of the accident. In doing so, we reiterate the rule that normally when two cars collide at an intersection of streets of equal importance on a bright clear day, with no other cars or obstructions to view present, both drivers are to blame. Under such circumstances both drivers have the duty of exercising reasonable care to avoid an accident; otherwise they proceed at their own risk, and must suffer the consequences of their negligence.
The judgment is affirmed, with costs to defendant.
Bushnell, C. J., and Sharpe, Botles, Reid, North, Dethmers, and Carr, JJ., concurred. | [
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Bushnell, C. J.
This is an appeal by plaintiffs George Hoekzema and wife from a judgment en tered in favor of defendants Edward Van Haften and Ms brother, Ray Van Haften, in a new trial ordered in Hoekzema v. Van Haften, 313 Mich. 417.
The facts reported in that opinion need not be repeated here. At the second trial, because of the opinion rendered by this Court and certain stipulated facts, the gross unpaid amount due defendants on the purchase of a dairy herd, farm, and equipment was $10,093.59. From this the jury deducted $2,876.85, which was determined by it to be the amount plaintiffs were damaged because of the' contaminated condition, of the farm and buildings and the diseased condition of the dairy herd sold to them, less an off-set item of $200, which the jury found should be charged to plaintiffs for work performed by defendants after the sale. The net verdict in favor of defendants was therefore $7,416.74.
On plaintiffs ’ motion, for a new trial a remittitur of $1,916.74 was ordered in lieu thereof, which was accepted by defendants, thus reducing the judgment in favor of defendants to $5,500, and the new trial was denied.
Plaintiffs on this second appeal seek another new trial with instructions as to the items of. damages that may be recovered therein. It is argued that because of errors in the second trial the jury did not correctly determine the amount due defendants, which plaintiffs contend should not have exceeded $620.96.
There is a wide difference in the testimony presented with respect to the cost of keeping and feeding this herd of diseased cattle involved in this litigation. Melvin Weaver, a nephew of plaintiffs, who managed and operated the farm they had purchased from the Van Haftens, testified that the total cost was $7,698.08. Edward Van Haften testified that this cost over the same period of 16 months was $3,708. The jury determined this cost to be only $2,876.85.
Appellants argue that this jury of ‘ ‘ fellow farmers” of the Van Haftens exhibited prejudice against Hoekzema, a Grand Bapids contractor. They say that this prejudice was increased by the exclusion of testimony offered in support of damages suffered beyond feed and labor costs.
We quote the following in order to show what was excluded:
“Q. Up until the time this case came down from the Supreme Court can you tell us- how much legal expense you had incurred?
“Mr. Clark: I object to that, it is immaterial.
“The Court: Objection sustained.
“Q. Can you give us the items of cost that were not included in yesterday’s testimony. I mean the taxes and the operating charges for running the farm other than charges for labor and feed? For 1944 and 1945?
“A. Yes.
“Q. Will you tell us what they were?
“Mr. Linsey: I object to that, your Honor. That certainly can’t be an element of damage here.
“The Court: Objection sustained.
“Mr. Geib: If the court please, the plaintiff rests.”
The items of taxes, operating charges and legal expenses were properly excluded from the jury’s consideration of damages suffered within the language of the declaration. Franklin Co. v. Buhl Land Co., 264 Mich. 531.
The amount of damages as determined by t]ie jury may have been inadequate in the light of the testimony, but that was cured by the remittitur imposed and accepted. This determination by the trial judge was as fair and accurate as could be ascertained from the testimony presented.
In our former opinion, 313 Mich. 417, 427, we said:
“There may be some question to be determined by a jury whether plaintiffs are entitled to any extra amount for disinfecting the barn and pasture. According to the record it is claimed that sunshine and a thorough cleansing of the barn with disinfectant will accomplish this. This, however, is a jury question. ’ ’
There is a sharp dispute in the record as to how the Bang’s disease with which the dairy herd was infected was brought to the farm. Defendants claim that it might have been caused by Weaver’s lack of care of the barn and premises and that there was none in the herd when it was turned over to plaintiffs. Ray Van Haften, one of the defendants, testified:
“We always keep our farm in good condition. We sterilized with lime and solution.”
' As to this question, the jury was charged as follows:
“With reference to this claim, I charge you that if you find from the evidence that plaintiff has sustained damage because of the farm being contaminated, as distinguished from the herd, that plaintiff is entitled to recover such damages as have been established by the evidence. And of course, you will have to determine that amount and state the same— or you determine that amount.
“Now, in connection with that, I told you a while ago that the plaintiff claims that this farm has been contaminated and that he has been damaged thereby.
“On the other hand, the defendants claim they didn’t contaminate the farm, that the farm was contaminated by the plaintiffs through and by their employees. And so if you determine that the plain tiffs themselves contaminated the farm, then I say they couldn’t recover damages for contaminations, if they were to blame themselves for contaminating it. ”
Appellants argue that the jury was thereby permitted “to find that the farm as distinguished from the herd was not contaminated by defendants.” The conflicting testimony on this question is analyzed and that offered by defendants is characterized by appellants, in part at least, as false.
The weight to be given the testimony of various witnesses was a problem for the jury. Davis v. Buttars, 201 Mich. 244, and Faulkner v. Parish Manufacturing Co., 201 Mich. 182. The charge given with respect thereto was proper aqd in accordance with the view taken by this Court in the opinion rendered in the first review.
The jury was further instructed'as.follows:
“Upon the question of the amount of damage to plaintiffs arising out of the fact that the farm was contaminated, if there is evidence of damage, you may award such an amount as you find is covered by the evidence. ’ ’
Mr. Linsey, attorney for defendants, then said:
“Mr. Linsey: If the court please, I wouldn’t want to sit here and have that charge go to the jury without raising some question, because there is no proof in the record of that.
“The Court: I understand that.
. “Mr. Linsey: I just want my — I want that put on the record.
“The Court: That is all right. I am going to say to the jury that this jury are made up largely of farmers, they know about these things, but here is evidence that Bangs disease was on the, place. You heard all this evidence about what will remove Bangs disease. Sunshine, I understand, sunshine, various things can be done, and so on. This hap pened a couple of years ago or over: I think that you have heard the testimony as to the facts and the fact that nobody can come on and say, well, that damage would be exactly so much because that is impossible. Still, if you find this farm has been contaminated and is contaminated because of this disease, you may allow it by such an amount as will, in your judgment, fairly compensate him for the damage of contamination. But, as I said to you, if you should find that this contamination was caused by the plaintiffs’ employee, then you cannot allow anything for contamination.
“Mr. Geib: If the court please, I ask leave to make a suggestion, if I may, that if that charge is. to go to the jury, I request the additional charge that the jury cannot find that Weaver brought that contagion to the farm unless they find it by a preponderance of the evidence.
“The Court: Well, that is true.”
Appellants say there was- no “lawful evidence” to sustain defendants’ claim that plaintiffs were indebted to them for a certain wage item. This question does not merit extensive discussion. Both of the Van Haftens testified that they worked on the farm after July 1st, helping with the harvesting and threshing, and were not paid for their services, which they said were worth $200.
The court’s charge to the jury with respect to this item was adequate and proper.
Plaintiffs requested the court to submit the following special questions to the jury:
“1. What is the correct state of the account between plaintiffs and defendants for caring for, feeding and selling the defendants contaminated herd of cattle?
“(a) Total credits due plaintiffs $........
“(b) Total credits due defendants $........
“ Balance due Plaintiff or
Defendant $.........
“2. "What damage did plaintiffs sustain by reason of the fact that the farm, as distinguished from the herd, was contaminated by Bang’s disease?”
We recognize that it has always been the law in this State that when special questions, correct in form and substance, and properly submitted, -are offered, the trial judge has no discretion, and his refusal to submit them to the jury constitutes error. Babbitt v. Bumpus, 73 Mich. 331 (16 Am. St. Rep. 585); Zucker v. Karpeles, 88 Mich. 413; Harbaugh v. People, ex rel. Cicott, 33 Mich. 241; Sherwood v. Railway Co., 82 Mich. 374 (4 Am. Neg. Cas. 100); and the numerous other authorities upon this point. The submitted questions should not have been submitted because they are obviously not in conformity with the statutory requirements that they ‘ ‘ shall be each, in single, short sentences readily answered by yes or no.” 3 Comp. Laws 1929, § 14290 (Stat. Ann. §27.1019).
The judgment, as modified by the remittitur was not excessive, nor did the trial judge unduly emphasize the amount that plaintiffs admittedly still owed defendants on the unpaid purchase price of the dairy herd, farm, and its equipment. The important question was how much should be deducted from this unpaid balance, for. the damages which plaintiffs suffered by reason of the diseased condition of the cattle.
The trial judge had this to say on the subject of costs in the opinion he filed on plaintiffs’ motion for a new trial:
“This subject has plagued the court throughout this case; the plaintiffs have insisted that they are .entitled to costs, and defendants have insisted, as the amount of their recoupment exceeds the amount of allowance to plaintiffs, they are entitled to costs.
“When this case was before the Supreme Court, it did not see fit to help us in the matter. They content themselves with: ‘Further objection is made to the allowance of costs to defendants in the lower court. In view of our decision plaintiffs will recover costs of the lower court;’ the decision reversed the ‘lower’ court and granted a new trial,
“Judge Searl, in his P & P (Pleading and Practice), § 465 fails to discuss or decide. But he does say that if the set-off is equal to plaintiffs’ demand, the verdict should be no cause of action and so on.
“3 Comp. Laws 1929, § 14136 (Stat. Ann. § 27.830) declares that ‘judgment shall be rendered for the defendant.’ But no mention is made of costs. However, we see no logic or reason why, if ‘judgment’ is for a defendant, he is not entitled to costs.
“Much, argument is directed to the deceptions practiced. The court has pointed out, in the absence of the jury, on the trial that the ‘tangled web’ was not woven by one party alone. This case would never have arisen if both parties to this suit had not entered upon the plan to keep the realtors from collecting a commission. The ‘sale’ would have been made in March, 1944, at a time when’ the evidence shows that defendants did not ‘know’ or even have reason to suspect any disease in the herd. Probably .both expected to reap some advantage thereby. ”
Plaintiffs prevailed in the lower court in that they had their damages assessed in reduction of an admitted amount due and unpaid on the purchase price. Therefore, plaintiffs should have been allowed costs below. They have, however, as appellants not prevailed here on their second appeal and, therefore, defendants, as appellees, are entitled to their costs in this Court. After these costs are taxed the cause must be remanded to the trial court for correction of its records so that the costs we direct to be assessed in the lower court may be de ducted from tlie judgment entered there for defendants, and that judgment corrected accordingly and the costs there allowed defendants, vacated.
Judgment affirmed, with costs in this Court to defendants and costs in lower court to plaintiffs. Remanded for correction of costs.
Sharpe, Boyles, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Butzel, J.
Plaintiff, as executor of the estate of John K. Hanna, alleges that his decedent sustained severe injuries, which later caused his death, while walking on a sidewalk in Grand Bapids, Michigan, through being struck by an automobile owned by the defendant and being negligently operated by one'Phil Baker. It appears that the car had been left at a service station owned and operated by one Walter J. Hayes for servicing, and that the car was being backed up across the sidewalk by Baker, an employee of Hayes, at the time of the accident. Decedent died eight months after the accident. Neither Hayes nor Baker are joined as defendants in this action, plaintiff predicating his right to recover solely on the statute which imposes liability upon the owner of a motor vehicle for negligence of persons operating it with his consent. (1 Comp. Laws 1929, §4648 [Stat. Ann. § 9.1446]) There is no allegation that defendant is guilty of any act of negligence, and plaintiff concedes in his statement of reasons and grounds for appeal that defendant did not in any manner participate in causing the decedent’s injury.
Defendant, in his answer, denies that either Hayes or Baker were negligent, and he further denies that the decedent’s death resulted from the injuries he received in the accident. As a special defense, he has shown that a suit brought by decedent in his lifetime against Walter J. Hayes to recover damages for injuries arising out of the alleged accident "was dismissed with prejudice following a settlement wherein Walter J. Hayes paid plaintiff’s decedent $2,550 and decedent executed a receipt specifically releasing Walter J. Hayes and Phil Baker, his employee, from any and all claims, demands, actions and causes of action which plaintiff’s decedent had or might thereafter have arising out of the accident. The other defenses raised need not be discussed.
Defendant made a motion for judgment on the pleadings. This motion set forth the facts regarding the previous suit, the dismissal with prejudice, the receipt of $2,550 by plaintiff’s decedent, and the release. A copy of the release was attached to the motion. The words “and all other persons” were stricken ont from it where they appeared on the release form after the names of Hayes and Baker. In the release it is stated that the money paid in consideration thereof “is paid in full satisfaction and discharge of all claims and demands by reason of the damages, losses, and injuries mentioned above,” referring to the accident. The trial judge granted the motion, and plaintiff has appealed.
In opposition to the. defense of release and satisfaction set up by defendant, plaintiff relies on Act No. 303, § 2, Pub. Act$ 1941 (Comp. Laws Supp. 1945, § 14497b, Stat. Ann. 1947 Cum. Supp. § 27.1683 [2]), which provides:
“It shall be lawful for all persons having a claim or cause of action against 2 or more joint tortfeasors to compound, settle with, and discharge, at any time prior to rendition of a judgment in said qction, any and everyone or more of said joint tortfeasors for such sum as such person may deem fit, without impairing the right of said person or persons, to demand and collect the balance of said claim or cause of action from the remaining joint tortfeasors, against whom such person, or persons, has such claim or cause of action, and not so released.’’
The determinative question presented on this appeal is whether Walter J. Hayes, the service station owner, Phil Baker, his employee, and the defendant are joint tort-feasors within the meaning of the above quoted act. If defendant is not a joint tortfeasor, he cannot be held liable, for in that event the release of Hayes and Baker also released him.
To answer this question, we must determine the nature of the liability which was created by 1 Comp. Laws 1929, §4648 (Stat. Ann. § 9.1446). There is no question but that under this statute defendant was liable with Hayes and Baker on decedent’s cause of action. However, liability for a tort is not the same as liability as a joint tort-feasor. Defendant’s liability is purely statutory, and the státute creating it is in derogation of the common law. The statute must be strictly construed and we may not go beyond it to impose liability. Wieczorek v. Merskin, 308 Mich. 145. As to the nature of the liability, our' Court approved the following rule in Riser v. Riser, 240 Mich. 402 (27 N. C. C. A. 518):
‘ ‘ The liability of the owner of a motor vehicle for damages caused by the negligent operation thereof by another person, rests upon the doctrine of agency, express or implied.
“The liability is based upon the doctrine of respondeat superior.”
We have recognized that the owner’s liability is different from that of the driver of the car. For example, in Wieczorek v. Merskin, supra, we held that although the owner’s liability is the same’ whether the driver is guilty of gross or ordinary negligence, the statute imputes only ordinary negligence to him and not gross negligence. Thus, the owner is not guilty of the gross negligence of the driver.
In Frye v. City of Detroit, 256 Mich. 466, we were called upon to decide whether persons committing two different torts almost concurrently were joint tort-feasors. In holding that they were independent tort-feasors, we quoted from Dickson v. Yates, 194 Iowa, 910 (188 N. W. 948, 27 A. L. R. 533), as follows:
“ ‘It is not the injury, but the wrongful act, which creates the liability. If the acts of the different persons are different and separate when done, they may not be called joint acts because they happen to occur at the same time or at different times and affect the same person, neither party having any design in the matter of any control or influence over the acts of the other. ’ ”
The same reasoning applies in the instant case. Defendant is guilty of no tortious act; he did not participate in the commission of the tort; and his liability arises only by operation of law. He is not a joint tort-feasor, but his statutory liability is based upon the doctrine of respondeat superior. It may be compared with that of a surety for the honesty of an employee, whose obligation differs from that of his surety. Thus, section 2 of Act No. 303, supra, is not a bar to the defendant’s plea in this case.
By the great weight of authority, a valid release of either the master or servant from liability for tort operates to release the other. See annotation, 126 A. L. R. 1199, and cases there cited.
Plaintiff, in his brief, calls attention to a number of cases from other jurisdictions, many of them from inferior courts, in which the term “joint tort-feasor”was used. There is no question but that the term has frequently been used carelessly. The question here presented was not considered in Conover v. Hecker, 317 Mich. 285, in which all of the defendants were guilty of negligence. Kallas v. Lincoln Mutual Casualty Co., 309 Mich. 626, and Larabell v. Schuknecht, 308 Mich. 419, involved covenants not to sue, and the rule as to such covenants differs from the rule as to releases. See Garstka v. Republic Steel Corp., 294 Mich. 387, 396, and cases there cited.
The trial judge properly held that defendant was not a joint tort-feasor and his order granting defendant’s motion for judgment of no cause of action is affirmed, with costs to defendant.
Bushnell, O. J., and Sharpe, Boyles, Reid, North, Dethmers, and Carr, JJ., concurred. | [
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Boyles, J.
This is an automobile personal injury damage case tried by jury, resulting in verdict and judgment for the plaintiff in the sum of $5,000. During the trial, and also after verdict, the defendants made appropriate and ’timely motions for a directed verdict, for judgment notwithstanding verdict, and for a new trial, all of which were in due course denied. On this appeal, the defendants are seeking reversal claiming that such motions should have been granted,.or that defendants should be granted a new trial, on the grounds (1) that the proofs showed plaintiff to be guilty-of contributory negligence as. a matter of law, (2) fail to show that the automobile was being driven by defendant Betty Lewis, the daughter of -defendant Henry C. Lewis, with his knowledge or consent, (3) improper statements of plaintiff’s counsel in opening the case and in his argument' to the jury, (4) error in permitting certain questions on cross-examination of the defendant Betty Lewis.
On January 28, 1944, the plaintiff was struck and injured by an automobile owned by defendant Henry C. Lewis while being driven by his daughter Betty, then 17 years of age. Plaintiff and the defendant Betty Lewis both were employees of WilcóxRich Corporation, a manufaeturing_concern which ha.d two plants on opposite sides of Rust street running east and west in Saginaw. About a half hour before midnight on said January 28th the plaintiff left that plant of his employer, which was situated on the south side of Rust street, went east along the south sidewalk to a private driveway which led from the sidewalk to the street, said driveway being the outlet of a parking lot owned by the Raymond Products Company. The plaintiff claims that he then looked both ways along said driveway, and then proceeded down the driveway for the purpose of crossing Rust street and entering another parking lot on the opposite side. While in this driveway plaintiff was struck by the automobile of the defendant Henry C. Lewis, driven by the defendant Betty Lewis. She was driving the automobile out of the Raymond parking lot down said driveway, between the sidewalk and the curb line of Rust street, for the purpose of entering Rust street. Thus far the facts are not in dispute.
Plaintiff’s Contributory Negligence.
The plaintiff testified that he and his companion, who was a fellow employee of Wilcox-Rich, turned into the Raymond driveway from the sidewalk, walked the 3 or 4 feet to reach the curb, and stopped in the driveway near the curb, that they waited there for 2 or 3 cars to pass on Rust street, that plaintiff did not see any automobile coming down from behind him in the driveway, did not hear any horn or see any lights coming back of him, and while standing there was struck by the defendants’ automobile coming down the driveway behind him. He testified that' when he entered the driveway he looked both ways, no automobile was coming out of the parking lot, that they walked down the driveway about three feet and stopped at the curb. His testimony was corroborated by that of his companion, who testified that he . was also hit by the automobile and “spun around” but not knocked down. This witness testified that the automobile continued on across the street, that the plaintiff was carried by it across the street, that the headlights and taillight of the automobile were not turned on, and that no horn was sounded. He testified that he and the plaintiff had made a square turn from' the sidewalk into the driveway, that they did not cut across the corner, and that they were in the driveway when struck.
The testimony of the defendant Betty Lewis is to the contrary. She testified that she finished working at 11:30 p.m., got into the automobile, turned on the lights and motor, drove out to the sidewalk, stopped, then started again. As to how the accident happened, she testified:
“I stopped right by the sidewalk just when I got to the sidewalk, and then I didn’t see anybody and I started again. After I had stopped before I got to the sidewalk, I started again, and there was 2 men that ran, they started right in front of the car, and I couldn’t stop. They were running. I don’t remember what gear I was in, but I was just starting up there. I ,was excited. When they ran in front of the car I tried to stop, but I couldn’t. I just couldn’t stop. I became excited and confused and I just couldn’t move. * * *
“I didn’t see the plaintiff until he ran in front of the car. When he ran in front of it, my car was about halLway down the' driveway. The first time I saw him, he was in front of the car and I don’t remember seeing the- other man. The first time I saw the plaintiff here, he was right in front of my car, and I can’t say how far the plaintiff was in front of my car when I saw him first. This all happened in an instant, and thére wasn’t very much time, and when I saw him in front of my car, I became confused then, and I didn’t move my foot. I couldn’t move. I tried to, but I couldn’t apply my brakes. * * * I don’t know which way the plaintiff was facing when I saw him there first. The only thing I actually know is that he was there in the driveway when I saw him first, and he was running. He was running toward the other parking lot across the street.”
Obviously both stories could not be true. The driveway where the accident occurred was a private driveway. It was the duty of Betty Lewis to come to a full stop before entering Rust street. 1 Comp. Laws 1929, § 4713, as last amended by Act No. 318, Pub. Acts 1939 (Comp. Laws Supp. 1940, §4713, Stat. Ann. 1947 Cum. Supp. § 9.1581). The trial court properly refused to direct a verdict for the defendants, or to set aside the verdict on defendants’ motion for judgment notwithstanding the verdict on the ground that the plaintiff was guilty of contributory negligence as a matter of law. Under the conflicting testimony in the case, its credibility and the question whether plaintiff was guilty of contributory negligence were for the jury.
Knowledge or Consent of the Owner.
At the trial this question became the controlling issue in the case and is now mainly relied upon by the defendants for reversal. Admittedly, the defendant Henry C. Lewis was the owner of the automobile and at the- time of the injury it was being driven by his daughter Betty Lewis. The applicable statute (3 Comp. Laws 1929, § 4648 [Stat. Ann. § 9.1446]) provides:
‘ ‘ The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle whether such negligence consists of a violation of the provisions of the statutes of the State or in the failure to observe such ordinary care in such operation as the rules of the common law require. The owner shall not be liable, however, unless said motor vehicle" is being driven with his or her express or implied consent or knowledge. It shall be presumed that such motor vehicle is being driven with the knowledge and consent of the owner if it is driven at the time of said injury by his or her father, mother, brother, sister, son, daughter, or other immediate member of the family. ’ ’
At the time of the accident defendant Henry O. Lewis was in Florida. Obviously his daughter Betty was driving his automobile on the night in question without his personal knowledge. The precise question therefore is whether she was driving the automobile at that timé with his consent, -express or implied. There is some question whether Betty had his express consent to use the car in going to and from her work. They both specifically testified that he had told his daughter not to drive the car except for an emergency, but there is some testimony to the effect that she might use the car to go to work if she was late, and Betty admitted that she was late for wor^ on the night in question. He admitted that he left the automobile, the keys and the title with his daughter. He stated that,he wanted his daughter to be able to drive the car or dispose of it if a fatal accident happened-to him on his journey to Florida. Although he knew she had jio driver’s license he left the automobile in her charge. It was in good running order, had gasoline, all that his daughter needed to do was put the key in and run it. He knew Betty had driven the car before, without his consent. On -cross-examination he admitted that he
“left her in complete charge of the car and the title. * * *
“Q. So you more or less left her with the understanding that if an emergency happened that she could use it?
“A-. I don’t remember using words to that effect, but if you put it that way, it might be.”
Betty testified she was late for work that day, and her father admitted that his daughter being late for work might be termed an emergency. At the conclusion of all the testimony, counsel for the defendants moved for a directed verdict for the defendant Henry C. Lewis on the ground that there was no testimony to show that he had given his consent to the daughter to use the automobile. The court reserved decision, and after the verdict denied the motion.
Appellants claim that the court was in error in submitting to the jury the question whether Betty was driving the automobile with the implied consent of her father, that a judgment of no cause of action should have been entered for both the defendants notwithstanding the verdict; or that in any event a judgment of no cause of action should be entered in favor of the defendant Henry (3. Lewis and a new trial granted as to the defendant Betty. Appellants claim that the positive testimony of both Betty Lewis-and her father, to the effect that he had told her she was not to drive the automobile except in-case of emergency, had overcome the présumption %of the statute that she was driving the automobile with his consent. In that connection appellants" argue that their positive testimony to that effect is uncontradicted, wherefore it must be considered to prevail. With this contention we do not concur. There is testimony from which the jury might reack the opposite conclusion.
Mr. Justice Cooley, writing for the Court in Woodin v. Durfee, 16 Mich. 121, said:
“The most of these facts the claimant insists are entirely undisputed on the evidence; and she claims that they establish beyond question the liability of Staley on the bond, and that the judge was at liberty to so instruct the jury. But the difficulty is that the facts were hot conceded or beyond dispute: There was evidence of them which probably ought to have satisfied any one to whom it was addressed; but evidence is for the jury, and the trial judge cannot draw conclusions for them. It is -said that on some points there was no evidence of a conflicting nature; but that does not aid the claimant. A jury may disbelieve the most positive evidence, even when it stands uncontradicted; and.the judge cannot take from them their right of judgment. If they return what he thinks is a perverse verdict, he may set it aside and order a new trial; but he cannot take upon himself their functions as was done here.”
In Yonkus v. McKay, 186 Mich. 203 (Ann. Cas. 1917 E, 458), the Court said:
“But even assuming, that these facts material to the issue had been proven by plaintiff and her witnesses without direct contradiction by any witnesses for the defendant, we are of opinion that it still would not be error for the court to instruct the jury that they must find those facts proven by a fair preponderance of the evidence. To hold thát in all cases when a witness swears to a certain fact the court must instruct the jury to accept that statement as proven, would be to establish a dangerous rule. Witnesses sometimes are mistaken and some-times unfortunately are wilfully mendacious. The administration of justice does not require the establishment of a rule Which compels the jury to accept as absolute verity every uncontradicted statement a witness may make. ”
In Ricketts v. Froehlich, 218 Mich 459, in reversing the trial court where a verdict for the defendant had been directed, this Court said:
“Plaintiff’s evidence of the identity of the tort feasor responsible for this fatal accident was necessarily circumstantial. Circumstantial evidence in support of or against a proposition is equally competent with direct. As against each other their relative. convincing power is for the jury. The trial court apparently assumed that defendant’s direct denial must he taken as true against all circumstantial evidence introduced. * * * There was ample circumstantial evidence from which the jury in balancing probabilities might fairly conclude that he was the driver of-the car which caused the accident. His testimony, backed by’an impelling motive, was not so. consistent, clear and convincing that the jury was bound to accept it in its entirety as conclusive proof. It was for them and not the court to pass upon his credibility.”
“If testimony, though not directly contradicted, is contrary to circumstances in evidence, or if it contains inherent improbabilities or contradictions which alone or in connection with other circumstances in evidence may excite suspicion as to the truth of the testimony, it may be disregarded by the jury. Uncóntradicted testimony may be disentitled to conclusiveness because, from lapse of time or other circumstances, it may be inferred that the memory of the witness is' imperfect as to the facts to which he testified, or that he recollects what he professes to have forgotten.” Cuttle v. Concordia Mutual Fire Ins. Co., 295 Mich. 514.
In Wingett v. Moore, 308 Mich. 158, this Court said:
“The controlling question presented on this appeal is stated by appellant Moore as follows:
“ ‘Was there, either at the close of plaintiff’s proofs or at the close of all the proofs, any substantive evidence to present a jury question as to the credibility of witnesses, or to permit the jury to determine whether or not the operator of defendant’s ear was, at the time and place of the accident, driving the same with the knowledge or consent, either express or implied, of the defendant?’ ”
In the above case the Court affirmed a verdict and judgment for the plaintiff under circumstances where consent by the owner of an automobile for its use by another had been implied from the facts and circumstances of the case.
Appellants rely on Christiansen v. Hilber, 282 Mich. 403, where the Court (syllabus) held:
“Testimony of unimpeached witnesses, who testify distinctly and positively to a fact and who are uncontradicted, should be credited and has the effect of overcoming a mere presumption.”
However, in that case the testimony was positive and uncontradicted by any facts or circumstances, that the truck was bought, kept and used solely for business purposes, that the owner never gave anyone any permission to use it for pleasure purposes, and that it was used by the owner’s son for pleasure purposes on the occasion in question without the owner’s knowledge or consent. Likewise, in Merritt v. Huron Motor Sales, Inc., 282 Mich. 322, also relied upon by appellants, the owner had loaned his automobile to the defendant Schuon at Ann Arbor for the express purpose of going to Brighton, on the condition that it would be returned to the owner at his home by .10 o ’clock p.m. so that he could use it. Instead of returning the automobile- within the time limit set, the borrower later was driving the automobile to Detroit,, in the opposite direction from Ann Arbor, with three companions, at the time of the accident. The holding of the Court in that case, in nowise controlling under the facts and circumstances of the instant case, was that:
“There is no substantive testimony in this record tending to support the essential element of plaintiff’s case, namely, that at the time and place of the accident this automobile was being driven with the express or implied consent or knowledge of appellant.”
It is readily apparent from an examination of its. decisions that this Court has held, under statutes and circumstances differing from those in the case at bar, that a presumption disappears when competent testimony to rebut the same has been adduced; and that a presumption cannot be weighed in the balance in considering the effect of such testimony when so received. This question has more frequently arisen under 3 Comp. Laws 1929, § 12063, as amended by Act No. 286, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 12063, Stat. Ann. 1943 Rev. § 23.303), providing that the making of a joint bank deposit shall be considered prima facie evidence of an intention to vest title to the same in the survivor. Such presumption disappears and has no weight as evidence when challenged by rebutting testimony. Allstaedt v. Ochs, 302 Mich. 232; Manufacturers National Bank v. Schirmer, 303 Mich. 598; Mitts v. Williams, 319 Mich. 417; Pence v. Wessels, ante, 195.
The same result has been applied with like effect with reference to the presumption that a deed of property to one in a confidential and fiduciary relationship will be considered as having been procured through undue influence until rebutted by competent testimony. (Hill v. Hairston, 299 Mich. 672), and also to the presumption of a mother’s fitness for custody of a child under 12 years of age (Eichholtz v. Eichholtz, 319 Mich. 42).
The precise question now before us is as follows: Under what facts and circumstances, as shown by the testimony, is it proper for the trial court to submit to the jury as an issue of fact, and as a jury question, whether the automobile was being driven by the defendant Betty Lewis with her father’s implied consent. "While an automobile in and of itself is not a dangerous instrumentality (Brinkman v. Zuckerman, 192 Mich. 624; Tanis v. Eding, 265 Mich. 94), we must give recognition to the fact that an automobile, if driven by an inexperienced, incompetent or reckless driver, partakes of the nature of a dangerous instrumentality by reason of the danger which lies in the possible improper methods of its use. This fact removes the presumption that the automobile is being driven with the owner’s knowledge or consent from the field of those statutory presumptions applying to joint bank accounts, undue influence, or custody of a minor child, and the like. The difficulty of showing the consent of the owner except by evidence of facts and circumstances, where the owner and the driver may be the only persons who can directly testify that no consent was given to drive the car, has a distinct bearing on the construction of the statutory presumption here involved. As originally enacted, this statute (Act No. 302, § 29, Pub. Acts 1915 [1 Comp. Laws 1915, § 4825]) provided that in the event of an automobile being driven by an immediate member of his family, it should be conclusively presumed that it was being driven with the owner’s knowledge or consent. This was retained by Act No. 287, Pub. Acts 1925, but, removed by an amendatory act, Act No. 56, Pub. Acts 1927 (1 Comp. Laws 1929, § 4648 [Stat. Ann. § 9.1446]). Since that time this Court has held that the statutory presumption of the consent of the owner may be overcome by direct and credible evidence to the contrary. Transcontinental Ins. Co. v. Berens, 254 Mich. 613; Karl v. Gary, 255 Mich. 621.
Prom the foregoing we conclude that not all presumptions have the same effect. As has been said, some presumptions disappear when competent evidence to the contrary is adduced to rebut the same. Other presumptions differ as to effect. The presumption of legitimacy of a-child born in lawful wedlock is one of the strongest known to law, founded upon public policy. Kotzke v. Kotzke’s Estate, 205 Mich. 184. The presumption of innocence of crime can be overcome only by evidence that convinces of guilt beyond a reasonable doubt. The statutory presumption now under consideration in the instant case can be overcome only by evidence that is clear, positive and credible. Transcontinental Ins. Co. v. Berens, supra; Karl v. Gary, supra; Christiansen v. Hilber, supra. This would seem to cast upon the defendants here the burden of producing clear, positive and credible proof to overcome the presumption that the defendant Betty Lewis was driving’her father’s automobile at the time of the injury with at least her father’s implied consent.
In O’Dea v. Amodeo, 118 Conn. 58, 63-67 (170 Atl. 486) the nature and functions of rebuttable presumptions are discussed at length. The case involved the effect of a statutory presumption that an automobile operated by the husband, wife, father, mother, son or daughter of the owner was operated with the owner’s authority. After analyzing the effect of various rebuttable presumptions, the court said:
“But where the circumstances involved in an issue are peculiarly within the knowledge of one party and his power to bring them before the court, in certain instances the law deems it fit that he should have the burden not merely of offering some substantial countervailing evidence but of proving such circumstances. * * *
“The statute involved in this case in terms goes no farther, after stating the presumption, than to put the burden of rebutting it upon the defendant, and our question is, what did the legislature intend by this provision. If in this instance the intent of the legislature was to do no more than to establish a presumption which would he rebutted by the production of substantial countervailing evidence, the last provision in the statute would serve no purpose, and we must assume that by its inclusion the legislature intended some further effect. * * *
‘ ‘ To construe the statute as meaning that the presumption would be rebutted as soon as substantial countervailing evidence was offered, would necessarily mean that, when the defendant had offered such evidence, the presumption would not only cease to operate, but the burden of proof would be upon the plaintiff unaided by inferences from the facts which gave rise to the presumption, and in the absence of sufficient evidence to sustain that burden the defendant must prevail, even though the trier entirely disbelieved the testimony offered by the defendant.- * * * However that may be, the situation presented is similar to those to-which we have referred where the presumption rests upon the fact that the circumstances involved in the issue are peculiarly within the knowledge of the defendant, and as to which we have said that unless the defendant proves the actual circumstances of the case, the presumption is riot rebutted. * * *
“In the instant case the plaintiff offered no evidence, -other than that the car was operated by the son of the owner, to support his contention that the automobile which caused the accident was maintained by the defendant as a family-car and that the son was operating it within the scope of a general authority to do so. . The defendant testified that the car was not maintained for the general use of the members of his family and both he and his son testified that the latter had no general permission to operate it, that on the occasion in question he had no permission to use it and that the father did not know that he had taken it until after the accident occurred. * * * ,
“In certain respects the testimony of both father and son was contradicted and they were 6f course much interested witnesses. * * * In this sitúa tion. we cannot say that the jury were compelled to accept as true the testimony of the father and son.”
In Scott v. Wallace, 251 Mich. 28, one Herrig was driving an automobile owned by the defendant Wallace and became involved in a collision with the plaintiff’s car. The question whether Herrig was driving the car with the owner’s consent was submitted to the jury, resulting in a verdict for the plaintiff, Herrig and Wallace were not members of the same family, hence the issue of a presumptive consent was not involved. Defendant Wallace had left his automobile and his car key with his wife while he was away on a trip, and testified that, he told her not to let anyone else drive it. She allowed Herrig to drive it and the accident resulted. The Court held that the question of the owner’s consent was for the jury.
See, also, Kerns v. Lewis, 246 Mich. 423; Reitenga v. Kalamazoo Creamery Co., 288 Mich. 161 (8 N. C. C. A. [N. S.] 28).
“The statutory liability of an owner of an automobile where it is used by another is predicated upon owner’s consent to the use of it by another and damages arising from resultant negligent operation and is not avoided by operation in violation of owner’s instructions to operate it in a certain way or only when the driver was alone or accompanied by nonpaying passengers (1 Comp. Laws 1929, § 4648).” Sweeney v. Hartman (syllabus), 296 Mich. 343.
In Allen v. Massachusetts Mutual Life Ins. Co., 149 Neb. 233 (30 N. W. [2d] 885), decided by the Nebraska supreme court February 6, 1948, the question was as to the effect of the presumption that death is not caused by suicide. The trial court was upheld in submitting to the jury the question of fact, whether the presumption had been overcome by the evidence, and in instructing the jury that the burden of proof to overcome the presumption was on the defendant, in that case the insurance company.
The credibility to be given the testimony of the defendants in the case at bar was for the jury. Jurors in testing credibility have the advantage of hearing the witnesses and observing their demeanor and manner of testifying on the witness stand. The record before us indicates that both defendants were evasive under cross-examination and to some extent their testimony was uncertain on material issues in the case. They were not disinterested witnesses. Henry C. Lewis admitted that he did not remember exactly what he told his daughter about her using the automobile. We do not substitute our judgment for that of the jury as to the credibility or the weight to be afforded the defendants’ testimony. We conclude that the trial court properly left the jury to decide as a question of fact whether the defendant Betty Lewis was driving the automobile with her father’s consent.
Plaintiff’s Counsel’s References to the Presumption.
In his opening statement to the jury and again in his argument to the jury after the closing of the proofs, counsel for the plaintiff referred to the statutory presumption that the use of the automobile by defendant Betty Lewis was with the owner’s consent. There is no merit in defendants’ claim that their motion for a new trial should have been granted because plaintiff’s counsel had been permitted to do so. At the beginning of the trial the statutory presumption existed, that the automobile was being driven by his daughter Betty with the knowledge or consent of the defendant Henry C. Lewis, the owner. At that time, before the taking of any testimony, the presumption might control. Eichholtz v. Eichholtz, supra; Mitts v. Williams, supra; Pence v. Wessels, supra. Counsel for the plaintiff had the right to refer to the statutory presumption. Under the circumstances of this case the question whether the presumption had been overcome or rebutted by the testimony was still in the case, to be submitted to the jury after the proofs were closed.
The trial court permitted cross-examination of Betty Lewis as to whether she had been charged with failing to yield the right of way to a pedestrian, as a result of the accident. She admitted having received two traffic tickets, one for failing to yield the right of way and one for not having a driver’s license. She admitted over defendants’ objection that her father “took it (the ticket) down and paid the fine.” Doubtless counsel for the defendants made too much showing of importance of this matter before the jury. However, it was not error to permit the cross-examination. Zimmerman v. Goldberg, 277 Mich. 134; Socony Vacuum Oil Co. v. Marvin, 313 Mich. 528.
Other claimed errors have been examined and are considered to have no substantial merit. The judgment is affirmed but without costs, appellee not having filed a brief in this Court.
Btjshnell, C. J., and Sharpe, Reid, North, Dethmers, Btjtzel, and Carr, JJ., concurred. | [
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Dethmers, J.
The marriage of. the parties occurred in 1919 to which were born two children, both grown and self-supporting at commencement of suit. Plaintiff seeks divorce on the grounds of desertion. Defendant’s cross bill charges nonsupport. Prom decree of divorce for defendant, plaintiff appeals.
The proofs show that in 1932 the parties and their children were living with and in the home of plaintiff’s parents in Grand Rapids; that plaintiff was unemployed and personally making no contribution to his family’s support; that defendant was employed and furnished support for herself and children, supplementing that received from plaintiff’s parents; that defendant lost her job and, finding no other employment in Grand Rapids, secured work that year in Detroit where she went to live with her mother, taking the older son with her and being joined there later by the younger son; that from then on defendant supported herself and two sons without aid from plaintiff, except for a sum. of less than $100 which he sent her between 1932 and 1937, and that'thereafter, when times had improved and plaintiff was steadily employed, he furnished no support for defendant and the two sons whatsoever; that plaintiff asked defendant to return to him at the home of his parents but that his mother wrote defendant that they could not return. Defendant testified that plaintiff’s parents were very domineering, that there wag no home life in their home for the boys, that she could not stand it there any longer, and that plaintiff never offered nor attempted to provide a home of their own for his family. Under such circumstances we think that defendant was justified in leaving plaintiff at his parents’ home and going to Detroit and securing employment to support herself and children and that her departure and continuing to reside in Detroit with her mother did hot constitute desertion, and that plaintiff’s subsequent failure, when he was again employed, to provide a home for his family or to contribute to their support amounted to nonsupport entitling defendant to a decree of divorce.
Defendant’s cross bill prays that she be granted $5,000 to reimburse her for the support of the two sons from 1932 until they became self-supporting, but asks for no alimony, property settlement or provision in lieu of dower. The court decreed that in lieu of dower plaintiff should pay defendant $2,500 for which defendant should have a lien on real estate owned by plaintiff. As to this plaintiff charges error because (1) defendant’s crosg bill does not ask for a provision in lieu of dower; (2) under 3 Comp. Laws 1929, § 12746 (Stat. Ann. § 25.104), a wife shall be entitled to her dower only when divorce is decreed for the causes therein specified but not in cases of divorce on the grounds of nonsupport as in the instant case; (3) under 3 Comp. Laws 1929, §12747 (Stat. Ann. § 25.105), the court may impose a lien on the husband’s real estate only to secure payment of alimony or allowance for child support.
Attention is directed to 3 Comp. Laws 1929, § 12766 (Stat. Ann. § 25.131), which reads in part as follows:
“When any decree of divorce is hereafter granted in any of the courts of this State, it shall be the duty of the court granting such decree to include in it a provision in lieu of the dower of the wife in the property of the husband.”
(This language remains unchanged in the amendment contained in Act No. 220, Pub. Acts 1939. See Comp. Laws Supp. 1940, § 12766, Stat. Ann. 1947 Cum. Supp. § 25.131.)
In Spratler v. Spratler, 203 Mich. 498, we held that 3 Comp. Laws 1929, § 12766, repealed 3 Comp. Laws 1929, § 12746, by implication and that under said section 12766, in all cases of divorce, the court is empowered to fix a provision in lieu of dower. The court must, under the latter statute, make provision in lieu of dower in all cases of divorce (Mulvihill v. Westgate, 306 Mich. 202; Ritzer v. Ritzer, 243 Mich. 406; Wagner v. Wagner, 237 Mich. 371) and may make it without any award for alimony. McFarlane v. McFarlane, 298 Mich. 595. Such provision in lieu of dower may be fixed as a lien on the husband’s real estate. Harner v. Harner, 255 Mich. 515.
The decree of the trial court is, affirmed, with costs to defendant.
Bushnell, C. J., and Sharpe, Boyles, Reid, North, Butzel, and Carr, JJ., concurred. | [
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North, J.
This is an appeal by defendants, the employer and insurance carrier, from an award of compensation to plaintiff. The sole question presented is this: Did the injury which plaintiff sustained arise out of and in the course of his employment by defendant Tanis? The fact's are not controverted.
Plaintiff, Frank Haggar, was employed by defendant Tanis as a fireman to care for several furnaces located in three separate buildings. Five of these furnaces were located in one of such buildings and one in each of the others. Each of the three buildings- was located on the east side of South Burdick street in the city of Kalamazoo; but it was a distance of four blocks between the most northerly building and the most southerly building, the other being between the two. Plaintiff lived in a room provided for him in, one of the buildings, but there was no provision at his rooming quarters for preparation of meals. o As to his meals, plaintiff testified: “I always went to the restaurant. ’ ’ His working hours were from 6 or 6:30 a.m. to 9 or 10 p.m. He testified : ‘ ‘ The two boilers, I looked at them three times a day; morning, noón and night and the others two hours or oftener if they needed it. ’ ’
About 5 p.m. on the. day of the accident, plaintiff after attending the furnace in the most northerly of the three buildings, located at the northeast corner of South Burdick and South streets, went to a restaurant on South street for lunch. In doing so he crossed from the east side to the west side of South Burdick street and proceeded west on the north side of South street about half a block to the Park Cafe where he ate his lunch. In returning to his work he walked east on the north side of South street to the northwest corner of the two mentioned streets. He then crossed South street on the west side of South Burdick, and waited on the west side of that street at the southwest corner of the inter section for the green light. He then started to cross South Burdick street where the accident happened, resulting in seriously injuring plaintiff.. He testified as follows:
“It happened between 5:30 and 6 o ’clock at night. * * * I was about midway of the street. * * * There were two cars came from the east and made a left turn and headed me off and I stopped there and was going to turn and go back to the curb and I got struck as I was turning around to look if there was another car. * * * I was going back to the Cedar Dwellings (one of the threé buildings) * * * to close the draft on the furnace and check up on the other fires.”
In contending that his injury arose out of and in the course of his employment, plaintiff cites and relies upon the following eases: Kunze v. Detroit Shade Tree Co., 192 Mich. 435 (L. R. A. 197A 252); Haller v. City of Lansing, 195 Mich. 753 (L. R. A. 1917E, 324); Favorite v. Kalamazoo State Hospital, 238 Mich. 566; Morse v. Railroad Co., 251 Mich. 309; and Schlichenmayer v. City of Highland Park, 253 Mich. 265. Each of the above cases is distinguishable from the instant ease because decision therein hinged upon a finding of one or the other of the following attendant circumstances:
(1) That, if the injury occurred on the street, the employee at the time of the injury was found to have been actually engaged in performing duties incident to his employment.
(2) Or that the injury occurred on the employer’s premises over which he had control and while the employee was engaged in conduct which had the express or implied approval of the employer, and which conduct had at least an indirect connection with the employment, even though the employee was attending his personal wants or needs.
Plaintiff also relies upon Thiede v. G. D. Searle & Co., 278 Mich. 108. But that ease is distinguishable from the instant ease because it was therein found that the employee, a traveling salesman, who lost his life in a hotel fire, in staying at the hotel “ ‘did the usual and natural thing in the course of his employment;’ ” and further, the employer “ ‘expected and required its employees to stop at hotels. ’ ” In other words, the‘plaintiff in that case in staying at the hotel when the fire occurred was doing something contemplated and required by his employment.
Plaintiff also calls our attention to two cases from other jurisdictions, but we do not find in them authority in support of the award in the instant case. In Goetz v. J. D. Carson Co., 357 Mo. — (206 S. W. [2d] 530), the employee, to whose dependents compensation was awarded, as he was leaving a place into which he had gone for a soda, sprained his anide, from which a pulmonary embolism developed causing his death. His employment was that of collecting accounts for the defendant, and in the discharge of his duties the employee went on foot throughout a large area in the city of St. Louis. Obviously at the time and place of his injury this employee, as in Kunze v. Detroit Shade Tree Co., supra, had not departed from the ambit of his employment. Such is not the fact in the instant case. And it may be noted that in its opinion in the Goetz Case, the Supreme Court of Missouri said: “It is indeed a close question whether- there is evidence sufficient upon which it can be reasonably determined the deceased was injured by accident in the course of his employment.”
In the other case from a foreign jurisdiction upon which plaintiff relies, Cardillo v. Hartford Accident & Indemnity Co. (C. C. A.), 109 Fed. (2d) 674, the employee was the driver of a sight-seeing vehicle in and about Washington, D. C. For the purpose of getting his noon-day lunch he drove the vehicle about two miles from the point where otherwise he would have been waiting for passengers whom he was sent to pick up. On his return to the place where he was to take on the passengers his vehicle overturned and the employee was injured, and he was awarded compensation. But the opinion of the court fairly discloses that plaintiff and other fellow employees commonly drove their vehicles to places where they ate their meals, and this was done with employer’s consent. The employing company’s president and manager testified:
“Q. Is it in violation of the company’s rules for one of your drivers to use the car in going a short distance for his lunch?
“A. Well, now, not while he is on a job like that; I would say that there is nothing against it.
“Q. For instance, if on‘e of your drivers drops a party of passengers at the Congressional Library, he would not be compelled to take the most direct route back to the Commodore Hotel, but he could take any other route that he wanted to, a few blocks one way or the other?
“A. That would be all right; yes.’’
There is no comparable testimony in the instant case. Referring to the quoted testimony, the court-said: “The manager’s testimony would support a finding that Green Line (the employer) and its drivers understood that a man did not abandon or interrupt his employment by driving a reasonable distance to get lunch. ’ ’. The controlling factual distinction between the Cardillo Case and the instant case is obvious.
Decision herein is controlled by cases wherein, under comparable circumstances, we have held that the injury did not arise out of and in the course of the employment. Incident to this phase of the law we have held:
“The determination as to whether or not an injury to an employee arose ‘out of and in the course of’ employment necessarily rests on the particular facts and circumstances disclosed hy the record of the case.
“To arise ‘out of’ the employment the injury sustained must have a causal connection with the work to he performed; must be one which follows as a natural incident to the employment, be connected with it, and not the result of a risk. disassociated therefrom.
“An injury is received ‘in the course of’ employment, as that term is used in the workmen’s compensation act, when it comes while the workman is doing the duty which he is employed to perform.
“Under the test that an injury, to be compensable under the workmen’s compensation act, must have arisen out of and in the course of the employment, an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment would not be compensable.” Murphy v. Flint Board of Education (syllabi), 314 Mich. 226.
The applicability of our holdings in the Murphy Case to the facts under consideration in this case is apparent from the following. Each of the three buildings in which plaintiff rendered service was located on the east side of South Burdick street. In doing his work plaintiff at no time had occasion for crossing South Burdick street or for entering upon the portion of that street which was used by its vehicular traffic. In so doing plaintiff departed from the ambit of Ms employment, entered upon a course of action disassociated from Ms work, and was doing that which was solely incident to his personal desires , or needs. "While he was so acting his employer was not charged with the risk of plaintiff incurring injury, because such an injury could not be said to have arisen .out of and in the course of his employment. From the time of plaintiff’s departure from his area of work on the east side of South Burdick street, he was not acting in the course of his employment. His mission was personal and at the time of the accident he had not returned to a place where his work required him to be. And there was no “causal connection” between his work and the accident. In its legal aspect the situation is no different than it would have been if plaintiff had left his place of employment and gone a greater distance for his evening meal.
We are not in accord with the reasoning or holding of the commission as indicated by the following in its opinion:
“Did he step out of his employment at the time he went to the Park Cafe to eát? If so, when did he return to his employment"? It may be that he was not in the course of his employment when he was in the Cafe eating. * * * , In our opinion, it would not be necessary for him to cross to the east side of Burdick street and actually be on that side of the street in order to be in the course of his employment. ’ ’
The department’s opinion just noted is contrary to our holdings. In Dent v. Ford Motor Co., 275 Mich. 39, the employee was only five feet outside the employer’s exit gate when injured; and in Simpson v. Lee & Cady, 294 Mich. 460, the employee, on his way to work, had approached within inches of Ms place of employment when he was injured. In each of these cases compensation was denied on the ground that the injury did not occur while the employee was within the ambit of his employment and hence it could not be said that his injury arose out of and in the course of his employment.
We said in Conklin v. Industrial Transport, Inc., 312 Mich. 250, 255:
‘ ‘ The slight deviation from the usual route over highway 127 is not the controlling factor, but rather the fact that deceased made this deviation for the sole purpose of carrying out a personal mission. In other words, the deviation had no connection with the business of the employer, but was made for the pleasure of deceased. He had departed from the scope of his employment and at the time and place of his accident was engaged in a pleasure trip'to visit his friend, Burch.”
And in the same ease we quoted from Jeffries v. Jodawelky, 304 Mich. 421, 424, the following:
“ ‘A deviation occurs when a route (or place), which might otherwise have been permissible, is selected, to carry out a mission personal to the employee.’ ”
In a legal sense the following cases are much in the field of the instant case, and are in accord with our holding herein. Lipinski v. Sutton Sales Co., 220 Mich. 647; Furino v. City of Lansing, 293 Mich. 211; Cherewick v. Laramie & Son, Inc., 295 Mich. 570; Rucker v. Michigan Smelting & Refining Co., 300 Mich. 668; Meehan v. Marion Manor Apartments, 305 Mich. 262; and Rector v. Ragnar-Benson, Inc., 313 Mich. 277.
Our review of this record brings the conclusion that plaintiff under the uncontradicted proof did not sustain an injury which arose out of and in the course of his employment by defendant Tanis. The award is vacated, with costs to appellant.
Btjshnell, C. J., and Sharpe, Boyles, Reid, Dethmers, Btjtzel, and Carr, JJ., concurred.
See 2 Comp. Laws 1929, § 8417, as amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8417, Stat. Ann. 1947 Cum. Supp. § 17.151).—Reporter. | [
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Butzel, J.
Plaintiff, John H. Buck, sought a divorce from defendant, Margaret -Buck, on tbe grounds of adultery and extreme cruelty. Defendant denied the charges and filed a cross bill alleging extreme cruelty.* Tbe parties were married on June 14, 1925. They have two children, a boy born January 31, 1933, and a girl born February 8, 1941. The court below, after a full hearing, awarded plaintiff a divorce on grounds of extreme cruelty. He awarded custody of the boy to plaintiff and custody of the girl to defendant. The decree provided for a properly settlement whereunder plaintiff was ordered to pay defendant $3,000 within 90 days from ‘the entry of the decree, and, also, to pay the sum of $15 a week for the support of the little girl. It awarded no alimony for the support of defendant. The trial court found that there was no evidence supporting the charge of adultery.
Plaintiff appeals from this decree, asking its vacation and the granting of a new hearing. He contends that the trial court erred in refusing to allow either of the parties to testify as to the charge of cruelty, and in not permitting the son of the parties, 14 years of age at the time of the hearing, to testify as to the charge of adultery. Plaintiff further claims that .the trial court erred in finding that there was no evidence of adultery. Defendant did not cross appeal.
The main portion of plaintiff’s bill of complaint is devoted to charges of adultery. Except in one instance, which was not proven, the time, place and circumstances of the alleged adultery are not set forth with any degree of particularity in the bill of complaint. When plaintiff sought to testify, the trial court refused to allow him to do so because adultery was charged in the bill of complaint. The same ruling was made when defendant was called by plaintiff for cross-examination. The trial judge based his ruling on 3 Comp. Laws 1929, § 14221 (Stat. Ann. § 27.916), which reads as follows:
“A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent, except in suits for divorce * * * but in any _action or proceeding instituted by the husband or wife, in consequence of adultery, the husband, and wife shall not be competent to testify.”
Plaintiff contends that the statute only precludes him from testifying as to the charge of adultery, and that he should have been permitted to testify as to other matters in issue in the case. It is not claimed that either plaintiff or defendant should have been allowed to testify with regard to the charge of adultery. We fail to see how plaintiff has been aggrieved by the refusal of the trial court to allow him to testify. Plaintiff’s charges of extreme cruelty, were found by the trial court to be proved in the decree. A careful reading of the record leads' us to the conclusion that the decree is correct. At most, plaintiff’s testimony could do no more than augment the evidence on the charge of cruelty, and could not, under the circumstances, affect the result which was reached. We, therefore, find it unnecessary to decide whether plaintiff should have been allowed to testify as to acts of cruelty. Plaintiff’s attorney contends that it might have become necessary for plaintiff to testify as to jurisdictional facts in that an admission in the pleadings as to such facts is not sufficient to confer jurisdiction upon the court under the ruling in Smith v. Foto, 285 Mich. 361 (120 A. L. R. 801). However, jurisdiction was amply proved by the facts disclosed by other witnesses, and there is, therefore, no reason to discuss the question in the instant case.
The trial court also refused to allow the 14-year-old son of the parties to testify as to acts, of adultery claimed to have been committed by defendant in 1941, at which time the boy was only 8 or 9 years of age. Under the circumstances of this case., plaintiff has no reason to complain of this ruling. No other evidence was presented by him to prove the acts of adultery. We have held that a divorce on grounds of adultery may not be awarded when no evidence to support the charge is offered other than the testimony of the young children of the parties. Kneale v. Kneale, 28 Mich. 344; Crowner v. Crowner, 44 Mich. 180 (38 Am. Rep. 245). In the Kneale Case, we said:
“The evidence relied upon to prove adultery is mainly circumstantial, except what is given by the children of the parties, who are called to testify to the adulterous conduct of their mother, witnessed by them at an age when they could scarcely be supposed able to understand the significance of facts sworn to. Leaving out this evidence, the case would not be established; and we think it exceedingly unsafe to grant a divorce on the testimony of such children,, and are not disposed to encourage a practice of such evil tendency as the calling them as witnesses against their mother for such a purpose, and at such an age.”
The same reasoning applies to the instant case. Even if the trial judge had allowed the boy to testify, we would be loath to sustain a decree of divorce on grounds of adultery which is based upon the uncorroborated testimony of a young child of the parties as to what' took place some five years before the hearing and when he was not yet in his teens.
The practice of calling children of the parties as witnesses in a divorce action has been repeatedly disapproved by this Court. Counsel, if possible, should refrain from doing so. It is bad from a social viewpoint though not legally forbidden. Radzinski v. Radzinski, 234 Mich. 144; Ames v. Ames, 231 Mich. 347. In view of all the circumstances, the judge was not willing to brand the defendant as guilty of adultery in the absence of positive proof. The boy is devoted to his father and in his over anxiety to testify against his mother persisted in giving testimony against her after he was ordered by the court to desist. His recalling indecencies that occurred years before when he was still a young lad is shocking and difficult to believe. The trial judge made the following statement in his opinion:
“In the opinion of the court, there is no evidence of adultery. Practically all of the testimony of the plaintiff was that of young boys that he has allowed to congregate about this filling station, and, in the opinion of the court, he has made a rendezvous of a questionable character for these young lads. * * * Most all of the testimony of these young boys and girls occurred when they were somewhere in the neighborhood of 10 to 12 years of age, and they did not make a very good impression upon the court.”
We hear a chancery case de novo, and even if the judge erred in some of his rulings, as, for example, in stating that he granted the divorce solely because there was too much hatred and anijnus between the parties and it was apparent they would never live together again, we feel that he reached a correct result.
The principal question which plaintiff has raised, although not stated in his brief, in exactly the same form in the statement of questions involved, is whether the property settlement was fair to plaintiff and whether the custody of the little girl should have been given to defendant. Plaintiff complains that at the close of the proofs the court announced that it would appoint a real estate dealer to appraise the plaintiff’s property. Such an appraiser was not appointed. Plaintiff himself offered the testimony of an accountant who audited the books of the plaintiff’s filling station and grocery store business over a period of several years. He testified that at the time of the trial the plaintiff had current assets amounting to $1,733.46, and that the value of the building including cabins on the property was $6,000. He further testified that the plaintiff had current liabilities of $597.26, leaving net assets of $7,136.20. It is not clear whether the value of the vacant land upon which the buildings stand is included in this statement of assets. This property was purchased on land contract by plaintiff and defendant jointly for $2,250, payments being made over a period of 12 or 13 years. The vendor in this contract testified that he visited the property about once a week during that period, and that he had observed Mrs. Buck assisting in the business and working in the filling station and store. When the deed was given', it was made out to plaintiff alone. The testimony seems quite conclusive, that defendant worked hard in building up the property, that originally she was entitled to a joint deed upon the contract being paid úp, and that she had an interest in the, property. Using the figures offered by plaintiff as to his financial condition, we believe that the court did not err in awarding defendant $3,000 and in giving plaintiff 90 days in which to pay such sum. He accepted plaintiff’s own figures, and did not require the findings of an appraiser.
The little girl has been in the custody of the mother for at least 18 months, prior to the hearing. Defendant has been making $15 a week by tending the children of a school teacher at the latter’s home while the teacher is away. The little girl is being kept at the home of defendant’s mother, where she is being well cared for, both morally and physically. Witnesses testified as to the good character of de fendant and her exemplary behavior during a period of over 18 months prior to the hearing. Unquestionably plaintiff has been a hard-working and industrious man. He worked at a nearby factory, while defendant looked after the home and the business. However, testimony was introduced to show that plaintiff’s filling station and store are an unfit place in which to bring up a little girl. The judge so found. Rough talk was used about the premises, drunkenness did exist there, beer was sold to be taken off the premises, but, according to testimony, it was consumed on or near the premises. The custody of young children, particularly of little girls, always presents, a difficult question. However, the good of the child is paramount to everything else, and the conscientious judge stated that it was his first consideration: The order of custody and the frequency and length of time the father can visit the little girl or have her with him are always subject to change upon proper motion and proofs. However, if the mother continues to conduct herself in the manner as she has during a long period prior to the hearing, there will not be any occasion to make any change as to the custody of the child.
We affirm the decree of the trial judge, but without costs except the $100 fee the trial judge awarded defendant’s counsel.
Bushnell, C. J., and Sharpe, Boyles, Reid, North, Dethmers, and Carr, JJ., concurred. | [
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North, J.
This is an appeal by the defendants in a mandamus proceeding heard in the Wayne county circuit court. Plaintiff is the chief deputy circuit court clerk in Wayne county. In administering its official duties the civil service commission of Wayne county, herein referred to as defendant or the commission, classified plaintiff, who occupied two official positions, as clerk IY and as executive secretary I of the Wayne county road commission. Plaintiff testified, “My beginning salary in that position as chief court clerk was $3,600. At the time I started my appeal it was $3,600. I am being paid now a salary of $4,710. I get the maximum now. ’ ’ Presumably the above figures pertain only ter plaintiff’s position as chief deputy circuit court clerk, but do not include an additional annual salary as fixed by the civil service commission of $1,000 for plaintiff’s services as clerk of the road commission.
Plaintiff asserts that by reason of the character of the official duties performed by him he was and is entitled to be classified as court executive II in which classification the maximum annual salary was $7,590, but in May, 1947, was increased to $8,050; and that his annual salary as clerk of the road commission . should have been fixed at $1,200. Briefly stated the grounds upon which plaintiff asserts he is entitled to relief in this mandamus proceeding are: (1) That his “erroneous classification by said civil service commission * * * (was) wilfully and deliberately made, ’ ’ and that in its classification of plaintiff the commission’s action was and “is arbitrary, unauthorized, erroneous, and contrary to the rights of plaintiff;” and (2) in fixing plaintiff’s annual salary as secretary of the road commission at $1,000 instead of $1,200, the action of the civil service commission was “arbitrary and discrimina tory.” After an extended hearing in the circuit court, mandamus issued which gave plaintiff the relief sought, effective retroactively to August 1, 1943, as to classification and as to salary which plaintiff claims he should have received. Defendants have appealed.
Civil service in Wayne county became effective November 20, 1942, under Act No. 370, Pub. Acts 1941 (Comp. Laws Supp. 1945, § 1464-11 et seq., Stat. Ann. 1947 Cum. Supp. §5.1191 [1] et seq.), from which we quote the following :
‘ ‘ Sec. 12. General powers and duties. The powers and duties of the (civil service) commission shall be as follows: * * '*
“(b) Shall from time to time make, in accordance with the provisions hereof, rules adapted to carry out the purposes of this act and not inconsistent with its provisions for the examination and selection of persons to fill the offices and positions in the classified service, which are-required to be filled by appointment, and for the selection of persons to be employed in the service of the county; * * *
“(f) The classification shall be subdivided into groups and shall be based upon, and graded according to the duties and responsibilities of such positions, and shall be so arranged as to permit the filling of the higher grades through promotion. All salaries shall be uniform for like service in each grade of the classified service as the same shall be classified and standardized by the commission. Such classification and standardization of salaries shall not be final until approved by the board of supervisors, and such salaries shall not be paid except in accordance with such classification and standardization;
“(g) Shall have such other powers and perform such other duties as may be necessary to carry out the provisions hereof. * * *
“Sec. 18. All payrolls shall be approved by tbe civil service commission, or by its secretary when so authorized by the commission, before payment.”
In conformity with its statutory duty the civil service commission formulated specifications for the various positions in the classified service. There were approximately 400 grades or classifications. Because of plaintiff’s contention that he is entitled to be placed in the classification of court executive II, we have copied in footnote A appended hereto
the requisites of that classification as set forth in the commission’s specifications. And in footnote B are the commission’s specifications for clerk IV, wherein plaintiff was classified by the commission.
Plaintiff’s claim to relief appears to be based primarily upon his contention that the record before the commission, incident to plaintiff’s petition for reclassification, established that his qualifications and the duties performed by him were such that he clearly came within the classification of court executive II, rather than that of clerk IV. In this connection he points out and complaints of the fact that the commission in determining its classifications did not place any of the deputy clerks of the circuit court of Wayne county in a class of court executive, notwithstanding such classification was given to certain clerks employed in inferior courts, such as the court of common pleas for the city of Detroit, the circuit court commissioner’s court of Wayne county, the probate court of Wayne county, the juvenile division of that court, and clerks for the friend of the court for Wayne county. It is in the above particulars plaintiff asserts that the commission in the discharge of its official duties acted arbitrarily, capriciously and in an unauthorized manner.
Plaintiff had been employed in Wayne county service since March, 1935, and since December, 1937, in connection with the office of the county clerk. Prom time to time he was advanced in his position with an increase of salary. Because of his previous employment he automatically qualified under civil service without the requisite of an examination. It appears from the record that in originally putting civil service into effect in Wayne county, classification of the employees, numbering approximately 5,000, was made by tbe commission, in part at least, on tbe basis of questionnaires filled out and submitted to tbe commission by tbe employees. In April, 1943, plaintiff submitted to tbe commission bis questionnaire wbicb disclosed tbat at tbat time he was employed as “chief court clerk” in tbe county clerk’s office, with a salary of $3,720. In June, 1943, plaintiff also submitted a classification questionnaire wbicb contained a detailed description of tbe duties performed by him. Plaintiff was given tbe classification of an executive, but tbat designation was changed December 1, 1943, to clerk IV. In April, 1944, tbe commission notified plaintiff tbat it bad determined to reallocate bis position in the clerk’s office from tbat of executive to tbe class of clerk IV, effective as of December 1, 1943. This was neither a promotion nor a demotion. Rather it was only a change in tbe name or designation of the same classification.
Plaintiff was dissatisfied with bis classification as clerk IV and sought reclassification by tbe commission as “court executive #2.” Apparently many conferences were bad between plaintiff and representatives of tbe commission; also between county clerk Lingeman, who appointed plaintiff, and tbe commission. A so-called “desk audit” was made by tbe commission in December, 1944, of tbe duties performed by plaintiff. This ‘ ‘ desk audit ’ ’ and another made in June, 1945, cover more than 35 pages of tbe record now before this Court. In February, 1945, plaintiff was given a bearing by tbe commission. Tbe record discloses tbat a prolonged and most thorough investigation and consideration of plaintiff’s petition for reclassification was made, but plaintiff’s petition tbat be be reclassified from clerk IV to court executive II was refused by tbe com mission. The mandamus proceedings now before us for review followed.
This appeal is in the nature of certiorari. Primarily decision herein hinges on whether the circuit judge, in granting mandamus on the record made before him, exceeded his jurisdictional powers. In re Fredericks, 285 Mich. 262 (125. A. L. R. 259); Public Welfare Commission of Detroit v. Civil Service Commission of Detroit, 289 Mich. 101. The authorities about to be noted disclose sound principles of law which must be observed in this type of cases.
“If the civil service system as set up by the people of Detroit is to be effective, there should be finality to the findings made by the commission and review by courts should be limited to the narrow confines of the office of the writ of certiorari.” Public Welfare Commission of Detroit v. Civil Service Commission of Detroit, supra.
“The civil service commission has broad discretionary powers, but it cannot act arbitrarily.” People, ex rel. Sweeney, v. Rice, 279 N. Y. 70 (17 N. E. [2d] 772).
“While mandamus is the proper remedy to compel a municipal civil service commission to correct an illegal classification of positions in the public service, it will not lie when the determination of the commission does not constitute an abuse of discretion and it cannot be said, therefore, to be illegal.” Matter of Dill (syllabus), 185 N. Y. 106 (77 N. E. 789).
“The courts will not by mandamus attempt to control the discretion of subordinate bodies acting within the limits vested in them by law, unless the action is so capricious and arbitrary as to evidence a total failure to exercise discretion.” State, ex rel. Farmer, v. Austin (syllabus), 186 Wash. 577 (59 Pac. [2d] 379).
“Mandamus will not lie in matters involving discretion on the part of a public agency unless its action is so arbitrary and capricious as to evidence a total failure to exercise discretion; and civil service commissions come within the rule and have a discretionary power in the matter of classification.” State, ex rel. Reilly, v. Civil Service Commission of Spokane (syllabus), 8 Wash. (2d) 498 (112 Pac. [2d] 987, 134 A. L. R. 1100).
“The determination of facts and the propriety of action of administrative boards is not a judicial function.” Mann v. Tracy, 185 Cal. 272 (196 Pac. 484).
In Goodfellow v. Civil Service Commission, 312 Mich. 226, 232, Justice Reid, speaking for the Court, said:
“We must not usurp the functions of an administrative body. This the Constitution of the State forbids. Constitution (1908), art. 4.
“The trial court in the instant case was correct in holding that the review of the action of the civil service commission of the city of Detroit is by appeal in the nature of certiorari, in which appeal we do not determine administrative policies, nor purely administrative questions. The bill of complaint in the instant case petitioned the court to determine administrative matters, which bill of complaint was properly dismissed.”
A thorough examination of the record on this appeal fails to disclose any testimony in justification of a finding that the defendant commission in classifying plaintiff as clerk IY acted capriciously or arbitrarily, or that the commission’s act in so classifying plaintiff was other than an honest attempt to perform its statutory duty in that respect. In so holding we have in mind plaintiff’s testimony as to the character and details of his duties and responsibilities, and that he believed they were such that his position should be classified as court executive II. Also, we are mindful of the testimony of county clerk Lingeman, who, in testifying concerning plaintiff herein, said:
“I hold him responsible to me for the ordinary carrying out of the mechanical functions of the 18 circuit courts, and visiting judges. * * *
“Here I am, the clerk of the highest court in the county, where every decision of the lower courts can be appealed to the court of which I am clerk, and some of these lower courts have from one to four executives I and II, and in my entire set-up there isn’t a single court executive I or court executive II. * * * I have positively stated orally or in writing, to the civil service commission, and its members that I believe, and it was my opinion and judgment, that Bischoff’s position as classified clerk IV, was entitled to a higher classification.”
There is no claim of personal animosity in this matter. At the hearing in the circuit court the following occurred:
“The Court: Is there any personal animosity in the set-up anywhere?
“Mr. Nelson: I must answer that, as counsel (for plaintiff), I have not experienced one item of personal animosity; we just want the present classification changed from clerk IY to court executive II. I think that is the substance of it — a little assistance in_ getting around to justice for the circuit court clerk. ’ ’
County clerk Lingeman, testifying in behalf of plaintiff, said:
“I know there have been innumerable hearings and on Mr. Bischoff’s matter. I know that I have appeared myself and I will say this: I have never been denied the right to appear before the commission, nor has there ever been a time that they have not given me a respectful hearing when they were all there. There is no question involved that there has been a tendency to close the door to presentation of any facts we had. ”
The civil service commission is composed of three members, each of whom testified in the circuit court as also did others who were members of the commission’s staff. The uncontroverted record is to the effect that plaintiff’s petition for reclassification was given painstaking consideration; and the only fair conclusion from the record is that a difference of opinion exists' between plaintiff and the commission as to plaintiff’s proper classification. It is not possible from this record to conclude that in classifying plaintiff as clerk IY the commission acted capriciously, arbitrarily, or in bad faith.
A phase of the record much stressed by plaintiff in support of his contention may be outlined as follows : In the commission’s classification of employees no one serving in connection with the Wayne county circuit court is classified as court executive I or court executive II, the latter being the higher of the two classifications. But there is one or more such classified employees in connection with the work of the probate court, the common pleas court, the Wayne county circuit court commissioners, and the friend of the court. Obviously each of the above is inferior to the circuit court of Wayne county; and from this plaintiff urges that the commission’s failure to classify any of the clerks who serve in connection with the Wayne county circuit court as court executive, discloses arbitrary and capricious conduct on the part of the commission in failing to make a proper and uniform classification.
The facts disclosed by the record do not justify plaintiff’s contention or conclusion. Without, referring in detail to the commission’s specifications relative to the classifications of clerk IY and court executive II, the following may be noted. In part the specifications pertaining to “executive,” later changed to clerk IY, are:
“Nature of work in this class: Employees in this class perform supervisory and technical.work in the direction of a large specialized clerical unit or as assistants fo the chief administrator of a large county department. The supervision received by executives is of a general nature and decisions are ordinarily unreviewed except in unusual situations or upon complaints.”
Clearly plaintiff’s position as a deputy county clerk fits into the above specifications. He is not at the head of the-county clerks of Wayne county. He is a subordinate. In plaintiff’s classification questionnaire, signed by him and filed with the commission, the following appears:
“Who tells you what work to do and how to do it? (G-ive name and title) — Edmund B. Sullivan, chief deputy clerk; Caspar J. Lingeman, Wayne county clerk.”
The following is from plaintiff’s testimony:
“In my position, it is a fact that I report to Lingeman, the county clerk, and that upon him devolves the executive and administrative responsibility relating to my position. He is my boss, if that’s what you mean. * * * It is a further fact, in the county clerk’s office, that there is another employee higher than my own position, as division head, to whom I report, the chief deputy clerk, Edmund B. Sullivan. He is not under civil service, not classified at all, because he is the chief deputy in the office of county clerk, Lingeman.”
County clerk Lingeman, referring to plaintiff, testified,'as previously noted:
“I hold him responsible to me for the ordinary carrying, out of the mechanical functions of the 18 circuit courts, and visiting judges.”
From the foregoing it quite conclusively appears? that plaintiff’s responsibilities are not immediately to the judges of the Wayne county circuit court. Instead he has'two superiors in the county clerk’s department; and further, plaintiff does not receive supervision “from a judge or official of comparable rank.” This leads to noting in part the specifications for the class of employees designated as “court executive.” We quote from that specification:
‘ ‘ Class Title: Court executive
“Nature of work in this class: Employees in this class perform highly responsible administrative work in supervising the clerical and technical activities of a major court. General supervision is received from a judge or official of comparable rank and operations are ordinarily circumscribed by statutory provisions, but, within these limitations, these employees have complete responsibility for all court operations not requiring judicial determinations.”
It scarcely needs to be noted that if county clerk Lingeman and his chief deputy clerk Sullivan were subject to civil service classification, the former, and possibly the latter, would fall within the specifications just above quoted; but by statutory provisions (Act No. 370, § 10, Pub. Acts 1941 [Comp. Laws Supp. 1945, § 1464-20, Stat. Ann. 1947 Cum. Supp. § 5.1191(10)]) neither of these two is subject to civil service. Nonetheless as to the Wayne county circuit court they serve as court executives. As to his contact with the judges of the'Wayne county circuit court, county clerk Lingeman testified:
’ “I make my own personal contacts more directly with the executive judge, Judge Jayne. * * If there is some matter that comes up that I feel should be brought to the attention of all the judges, I then first contact Judge Jayne, as executive judge, and present it to him, and he, in turn, conveys the wishes or will of the other judges to me, and we have always had this very pleasant and satisfactory arrangement.’’
In contrast with plaintiff’s position the following appears as to the employees who are classified as court executives in the other courts or court departments hereinbefore noted. Court executives II have no superior in their own department intervening between them and the “judge or official of comparable rank” under whom they serve. Apparently in the exercise of its judgment the civil service commission concluded that since the comparable positions in the circuit court were occupied by county clerk Lingeman and his chief deputy Sullivan, notwithstanding they were not under civil service, the classification of court executive I or court executive II should not be made applicable to any of the employees in the county clerk’s department. Further,' from its investigations incident to making classifications the commission found that the nature and character of the work performed by those who were classified as court executives, incident to the work of the noted inferior courts and court departments, differed very widely from the work and responsibilities of plaintiff in his subordinate position in the county clerk’s department. The commission’s classification of plaintiff as clerk IV was in no sense based upon the assumption that the circuit court was not “a major court. ’ ’ In view of the disclosed circumstances there is no justification for finding that the civil service commission acted either arbitrarily or capriciously or in bad faith in not classifying plaintiff as a court executive.
There-is no merit to plaintiff’s further complaint that his annual salary as secretary of the Wayne county road commission was fixed by the civil service commission at $1,000 instead of $1,200, thus making his total annual salary $5,710. It is true that the road commission adopted a resolution agreeing to pay plaintiff as its secretary an annual salary of $1,200 and recommended such to the civil service commission. The civil service commission was not bound by the road commission’s recommendation. Instead, it was the duty of the civil service commission to determine what,’ under all the circumstances, would be proper compensation for plaintiff’s services rendered in this secondary'capacity ás a part-time employee. The civil service rules contain the following:
“Sec. 6. An employee who shall simultaneously hold two or more positions described in section 2 of these regulations shall receive as full compensation'only such portion of the salaries of the respective positions prescribed in the salary schedule as the civil service commission shall determine, notwithstanding anything else contained to the contrary. ’ ’
Plaintiff seems, in’ part at least, to base his claim on the ground that incident to his services as secretary of the road commission he was required to work overtime. On this phase of the controversy civil service commissioner Yon Moll testified:
“I recall that the salary our commission concluded should be given him (plaintiff) for the road commis sion work was $1,000. Salary of $1,000 was arrived at in this way: Mr. Bischoff stated he was under the necessity of working on Saturdays, because of his work during the time spent with the county road commission, and under the regulations of our pay plan, no employee could earn more than $1,000 in any one year for overtime beyond the 6 days’ work.”
The action of the civil service commission in the particular under consideration was clearly within the scope of its authority. It was not arbitrary, malicious, capricious, or in bad faith. Nothing appears in this record which would justify a modification of its determination by the intervention of a court.
It would be of no service to review in further detail herein the two-volume record on this appeal, consisting of more than 700 pages. We have given it thorough consideration, but find nothing therein which would justify intervention in oi^ modification of the determination of the Wayne county civil service commission in fixing plaintiff’s classification or his compensation. In the instant case the circuit judge sought by hearing de novo to substitute his judgment for that of the civil service commission in the discharge of one of its administrative functions. In attempting to do so he acted without jurisdiction. The courts cannot supplant or function as civil service commissions.
From our review in the above matter it is not to be inferred that under the circumstances of the instant case mandamus was a proper remedy. The method of our review has been prompted by reason of the fact that defendants did not, in the circuit court, challenge plaintiff’s right to seek relief by mandamus. That issue was not presented to the trial judge. But it.is strenuously urged by defendants in this Court; and it may be urged here for the first time because it presents a matter of jurisdic tion. Warner v. Noble, 286 Mich. 654; Township of Warren v. Raymond, 291 Mich. 426. Whether under other circumstances, presenting a different type of issue, mandamus would be a proper remedy, need not be and is not decided herein. However, so that an erroneous inference may not arise from our present opinion, we note, and we trust with finality, that under the record in the instant case wherein the commission acted in the exercise of its vested powers, the sole remedy available to plaintiff was certiorari. A summary disposition of this appeal might have been made on that ground. See In re Fredericks, supra; Goodfellow v. Civil Service Commission, supra.
The writ of mandamus issued by the circuit court is quashed and the case dismissed. Because it is so requested in defendants’ briefs, no costs are allowed.
Bushnell, C. J., and Sharpe, Boyles, Retd, Dethmers, Butzel, and Carr, JJ., concurred.
A
“Class title:
Court executive
“Nature of work in this class:
‘ ‘ Employees in this class perform highly responsible administrative work in supervising the clerical and technical activities of a major court. General supervision is received from a judge or official of comparable rank and operations are ordinarily circumscribed by statutory provisions, but, within these limitations, these employees have complete responsibility for all court. operations not requiring judicial determinations.
“Court executives ordinarily direet a variety of activities relating to court operations and handle, subject to approval of policies and major decisions, the management phases of the organization’s work. In this capacity, they participate in the employment, training, assignment and discipline of personnel, prepare budget and purchase requests, and prepare and review departmental procedures, reports, and plans of organization.
“An important phase of the work of court executives is the wide variety of official and publie contacts in which they participate. In this connection, these employees prepare important and varied correspondence and confer with governmental officials, attorneys and others. They may also be required to prepare reports and summaries of court activities and accounts of the receipt and disposition of funds paid into the court.
“Essential knowledge, abilities and skills: “Thorough knowledge of the statutory powers and limitations of the court concerned.
“Thoróugh knowledge of the purpose, functions and scope of the court concerned.
“Thorough knowledge of modern office practices and equipment.
“Considerable knowledge of management practices such as those relating to personnel management, budgeting, and purchasing.
“Ability to plan and integrate the activities of a number of specialized units performing clerical and technical work in connection with the operation of a major court.
“Ability to develop effective and economical court procedures and to suggest reorganization of functions in the interests of economy and efficiency.
“Ability to establish and maintain satisfactory relationships with judicial and other governmental officials, subordinates, attorneys, and the public.
“Ability to prepare reports and to handle a variety of correspondence.
“Desirable experience and training:
“Considerable supervisory experience in an important phase of the activity of the court concerned, and completion of the twelfth school grade; or considerable successful practice as an attorney, and graduation from an accredited law school.”
B
“Glass title: Executive (.changed to clerk IV)
“Natwre of work in this class:
‘.‘Employees in this class perform supervisory and technical work in the direction of a large specialized clerical unit or as assistants to the chief administrator of a large county department. The supervision received by executives is of a general nature and decisions are ordinarily unreviewed except in unusual situations or upon complaints.
“Executives are responsible for making major decisions concerning procedures to be followed in the unit, for offering advice and counsel to subordinate employees, and for handling a variety of management problems for an administrative superior. These employees participate in such departmental operations as employing, training, and assigning employees, preparing budget and purchase requests, and preparing or compiling work procedures.
“Some assignments in the class of executive require considerable specialized knowledge of departmental operations such as those relating to tax procedures, court procedures, preparation and review of legal documents, or insurance activities but, in general, the most significant factors in these positions are those relating to departmental administration. All of the positions in this class require considerable understanding of the functions and scope of the' particular department’s activities so that work may be scheduled and organized effectively. In connection with their duties, employees in this class may be called upon to handle a variety of subjects, and to prepare and review reports and memoranda.
“Essential knowledge, abilities and skills:
“Thorough knowledge of the functions and scope of the organization in which the position is found.
“Thorough knowledge of modern office practices and equipment.
“Considerable knowledge of management activities such as those relating to personnel management, budgeting, and purchasing.
“Ability to plan, organize, and coordinate the activites of a large group of employees performing specialized clerical operations.
“Ability to develop effective procedures for clerical operations and to train new employees in such procedures.
“Ability to establish and maintain satisfactory relationships with administrative officials, subordinate employees and with the public.
“Desirable experience and training:
“Considerable supervisory experience in clerical work, some experience in tbe particular department in which the position is found, and completion of the twelfth sehool grade, preferably supplemented by some college training in business administration or law.” | [
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Butzel, J.
Plaintiff, Andrew McCrea, brought suit against Jean Jerkatis and John Jerkatis, his sister- and brother-in-law, for specific performance of an alleged contract of-sale of an 80-acre farm in Barry county. Defendants had previously begun an ejectment action against plaintiff involving the same property. The two cases came on to be heard at the same time in the court below, and it .was stipulated that the equity case should be heard first, and that, if defendants prevailed therein, judgment should be entered in their favor in the ejectment suit, subject to the right of plaintiff to make a counterclaim for the value of improvements, et cetera, made by him to the property.
Defendants acquired legal title of record to the farm in 1935 as tenants by the entireties. Plaintiff went on the farm in 1931 or 1932 under a share-crop agreement with the former owner. Plaintiff’s mother lived with him on the farm until her death in 1939 or 1940. There is testimony that the defendants purchased the farm when it was offered for sale by the former owner so that plaintiff’s mother and plaintiff would have a place to live.
Plaintiff testified that in 1935 or 1936 he had a discussion with the defendants at their home in Chicago, and that the defendants agreed to sell the farm to him for a cash price of $400, or if he “couldn’t pay the $400 cash, it was to be $500 then, on time. ’ ’ In his bill of complaint plaintiff sets this date as July 1, 1935. He testified that $200 was paid by him to the defendant Jean Jerkatis, but that no arrangement was made as to when the balance was to be paid.
There is a dispute as to whether the defendant John Jerkatis was present at the time of a conversation in regard to the sale of the farm. In March, 1936, plaintiff had a conversation with Jean Jerkatis relative to the purchase of the farm, and a price of $500 was discussed. Mrs. Jerkatis contends that no definite agreement was made. Plaintiff testified that Mr. Jerkatis was present when the sale was discussed, but Mr. Jerkatis testified that he never had any conversation with plaintiff in regard to the-sale of the farm, never was present when his wife had any discussion with plaintiff in regard to the sale, never gave his wife any authority to deal with anyone, or make arrangements for the sale or dis.posal of the farm, and that when he learned she had received $200 from plaintiff, he told her to return the money. He further testified that when he asked later whether she had done so, she said she would return it eventually. Mrs. Jerkatis corroborates this testimony. The trial judge believed the defendants.
It appears that plaintiff has paid the taxes on the property, including certain back taxes for the years 1929 through 1934. The taxes were very small. Except for the taxes annually paid on the moratorium, they did not amount to $10 a year. Plaintiff also put a new roof on the house, repaired the chimney, installed electricity in the house, repaired the barn, and erected and repaired some fences.
The parties stipulated that the reasonable rental value of the farm from March, 1936, to August 1, 1945, was $5 per month, and $15 per month thereafter. Plaintiff received the proceeds of an oil lease for one year in the amount of $80, without objection by defendants. The property is at present insured against fire in the amount of $'3,600. During the 10 or 11 years prior to the time the instant suit was begun plaintiff made no payments or tender of payments to defendants except the $200 paid to Jean Jerkatis in 1935.
In 1941 Mrs. Jerkatis wrote the plaintiff a letter as follows:
“You took over the farm four or five years, now, and haven’t made the slightest effort to pay me a cent. * * *
“And when you received your bonus, this one and that one was saying, ‘Why don’t you sell to Andy? He will have a home for the rest of his life. ’ And that was the biggest mistake I made in my life. I have had nothing but grief ever since.
“To hear some of them talk, you. would think I got a fortune from you. And here is exactly what I got: $200.
“I paid $21 for taxes since you took it over, and I gave you $10 when you were here, for glasses, which leaves me $169. You have had the place 4 or 5 years,—we will say 4. Interest at five per cent., which is around $64; that leaves me $105. * * *
“You owe me $300, $21 taxes, $10 glasses, $64 interest,-—$395. That is figuring you have the place four years. If it is five, it is $400. That would leave you about $90. So if you prefer I will leave you have the place to January, 1942, at which time you will pay me $5 a month. ’ ’
Defendants plead the statute of frauds, and plaintiff contends that the letter quoted above constitutes a sufficient memorandum of the transaction to remove the case from the operation of the statute. We shall discuss this question first.
There are two reasons why this letter is not a sufficient memorandum to satisfy the statute of frauds. In the first place, it is not signed by the defendant John Jerkatis, one of the parties to be charged, and without whose signature a deed could not be given. No fraud whatsoever has been shown on the part of defendant John Jerkatis, and in this respect the case differs entirely from Hatch v. Wolack, 316 Mich. 258, on which plaintiff relies. He never consented to the sale, but on the contrary, opposed it, and did nothing whatsoever to lead plaintiff into buying the property.
In the second place, it is not possible to determine from the letter what terms of payment were agreed upon by both the parties. In a recent case, Goldberg v. Mitchell, 318 Mich. 281, this Court was equally divided on the question whether or not a memo randum which states the amount agreed upon as the sale price of real estate, but fails to state the time or terms of payment is a sufficient memorandum to satisfy the statute of frauds. Four justices took the position that it is essential that the memorandum state the terms of payment and the time when payments are to be made. In an accompanying opinion, also signed by four justices, the view was taken that the general rule is that where the memorandum is silent as to terms of payment, it will be presumed that the sale was for cash, and the memorandum is sufficient to satisfy the statute though it fails to state the terms of payment, provided other terms of payment were not actually agreed upon by the parties. In the inslant case, we have a conflict of testimony as to what the terms of payment actually agreed upon were. Plaintiff concedes that he did not agree to pay cash. He claims that no arrangements were made as to how the balance was to be paid. On the other hand, defendant Jean Jerkatis claims that there were terms and the balance was to be paid within one year.
Goldberg v. Mitchell, supra, decided by an equally divided court, made no law. Under neither opinion in that case would plaintiff be entitled to the relief he is seeking.
The trial judge held that the plaintiff’s equities were not such as to move a court of equity to grant specific performance, a remedy of grace and not of right. MacGlashan v. Harper, 299 Mich. 662, 667. We shall not cite the many other cases to like effect. There was no abuse of judicial discretion.
The trial judge, in an opinion applying to both the instant case and the ejectment case, stated:
“While normally the plaintiff would be entitled to the return of the $200, he has been on the premises for approximately 11 years without the payment of rent, other than taxes and insurance. He, however, has repaired the roof at a cost of $168, built a chimney at a cost. of $100, and installed electricity at $75, making a total of $343, for which he should be given credit in the ejectment case, inasmuch as under the holding herein the plaintiff in that case is entitled to judgment for possession. Plaintiff, however, admitted receiving $80 of oil-lease money, for which the defendants should be given credit, thereby showing a balance of $263 due the plaintiff by the defendants for improvements, in the ejectment case. So far as the taxes and insurance are concerned, if the contract had been valid the plaintiff would have been obliged to pay the same.
“The amount of $263 shall be payable within 15 days, and likewise the defendants shall have the right of possession within the same time. No costs are-to be taxed.”
This decree furnishes an equitable settlement of the rights of the parties. It is affirmed, but, also, without costs!
Bushnell, C. J., and Sharpe, Boyles, Beid, North, Dethmers, and Carr, JJ., concurred.
See 3 Comp. Laws 1929, §13413 (Stat. Ann. §26.908).—Reporter. | [
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