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3804 | bafkreify5raettht5ozaqrrhfzyndm7mks2bfl6fdcjxvleqabqrku7724 | 38 Mich. 90 | Michigan Supreme Court | 1878-01-09 | 90 | John R. Long v. Robert P. Sinclair.
Breach of Warranty — Constructive Eviction.
A declaration in covenant for breach of warranty alleged that by due process of -law the plaintiff had been ejected bv a person lawfully entitled to the premises. Held unsupported by evidence that he had recovered a verdict in ejectment fixing the value of the premises and improvements, and had elected to abandon the premises and taken judgment for their value.
Case made from the Superior Court of Grand Eapids.
Submitted October 31, 1877.
Decided January 9, 1878.
Covenant for breach of warranty. The facts are stated.
D. E. Corbitt (on brief) for plaintiff.
A judgment for value in ejectment amounts to an eviction, White v. Whitney, 3 Met., 31; Eastabrook v. Smith, 6 Gray, 572; Donnell v. Thompson, 10 Me., 170; Stewart v. Drake, 4 Halst., 139; Paul v. Whitman, 3 W. & S., 407; Turner v. Goodrich, 26 Vt., 709; King v. Kerr, 5 Ohio, 154; Martin v. Atkinson, 7 Ga., 228.
Thomas B. Church (on brief) for defendant. | 1337578 | The other Justices concurred. | Michigan | 91 | 2021-08-10T18:09:48.590402+00:00 | John R. Long v. Robert P. Sinclair | Long v. Sinclair | John R. Long v. Robert P. Sinclair. | CAP | Michigan Reports | bafkreicnzowgqlyfeui74lclmsno7zxqogcf3hgxhi7zmyrcrmz344y7we | Marston, J.
The plaintiff Long brought an action of covenant for breach of warranty. In his declaration, in setting up the breach, he averred that one John McFee, who had a lawful right and title to the premises, "by due process of law, entered into the same, and upon the possession of said lands and premises, and ejected, expelled and removed the said plaintiff against his will from the possession, etc., and that the legal title or right of the said John McFee, by which he attained his judgment of ejectment against the said plaintiff, was not" etc. The proof showed an action of ejectment to have been commenced by McFee against Long to recover these and other premises, a verdict of the jury in favor of the plaintiff in that action in which they found the value of certain improvements and also of the premises had there been no improvements, an election by the plaintiff to abandon the premises to the defendant at the value as estimated by the jury, and thereupon a judgment rendered in favor of the plaintiff and against the defendant in that case for the sum of eight hundred dollars, by the jury so estimated, with costs. The defendant on the trial below in this case claimed that the evidence did not support the allegation in the declaration; that the declaration averred a judgment in an action of ejectment and an eviction thereunder, whereas the judgment offered in evidence was one for the payment of money only, and upon which a writ of possession could not issue. The court below held that the plaintiff must under his declaration prove a judgment in' ejectment according to Comp. L., § 6234, and gave plaintiff leave to amend his declaration, which was not accepted. We think the court was correct in holding that there was a variance between the allegation in the declaration and the proofs offered. In my opinion the declaration, taken altogether, avers the usual and ordinary judgment in ejectment in favor of the plaintiff, a writ issued thereon, and an actual eviction by virtue thereof, — whereas the proof showed a special money judgment, and a constructive eviction. We must not be understood as holding that under the proofs in this case the plaintiff was not entitled to recover, had his declaration been framed differently, or that a constructive eviction is not sufficient. These questions do not properly arise as the case now stands, and we do not, therefore, express any opinion thereon. The plaintiff having in his declaration deemed it proper and necessary to allege a judgment and ouster thereunder, must establish the same by proper proof. Kennedy v. Newman, 1 Sandf., 187; McCormick v. Bay City, 23 Mich., 457; Underwood v. Waldron, 12 Mich., 73; Harrington v. Worden, 1 Mich., 487.
The judgment must be affirmed with costs.
The other Justices concurred. | 38 | 650 | |
30499 | bafkreihf7fo2lvhec2kkit622u6l5bq3cofnxdya5rncv5wtcjdoblaaue | 329 Mich. 683 | Michigan Supreme Court | 1951-03-01 | Docket No. 32, Calendar No. 44,916 | 683 | In re PETITION TO ESTABLISH AND QUIET TITLE TO LANDS AND RECREATING PUBLIC RECORDS IN MONTMORENCY COUNTY. HILL, INTERVENOR.
1. Quieting Title—Record—Appearance.
Person who filed an appearance in primary or principal statutory proceedings for establishing and quieting title to lands and recreating public records of lands in a county where records have been destroyed in whole or in part, would have a right to frame an issue and be heard (CL 1948, § 561.1 et seq.).
2. Same—Pleading—Records—Misstatement of Statute Number—Jurisdiction.
Jurisdiction was obtained by circuit court in primary or principal statutory proceedings for establishing and quieting title to lands and recreating public records of lands in a county where records have been destroyed in whole or in part, notwithstanding order for appearance erroneously referred to enrolled act number rather than public act number, where such order otherwise complied with the statute and after 4 of the 7 weekly publications made thereof, was corrected, although there was no posting of the corrected notice whieh contained the purpose of the proceedings, the subject matter involved and the time and place of hearing on the petition, sueh inaccuracy being inconsequential (CL 1948, § 561.-2).
References for Points in Headnotes
42 Am Jur, Process, § § 65, 66, 95.
44 Am Jur, Quieting Title and Determination of Adverse Claims, § 5.
12 Am Jur, Constitutional Law, § § 594, 597.
12 Am Jur, Constitutional Law, § 597.
14 Am Jur, Costs, § 91.
3. Process—Substituted Service—Notice.
Whether or not there has been substantial or reasonable compliance with statutory requirements for substituted service of process and adequate notice should be determined in the light of reason as applied to the facts, the subject matter, and the issues of the particular case.
4. Quieting Title—Statutes—Records—-Intervention.
Provisions of statute relative to proceedings for establishing; and quieting title to lands and recreating public records of lands in a county where records have been destroyed in whole or in part held, to provide an effective means of quieting title with finality, since such statute must be considered in the same light as the ordinary chancery decree entered in a proceeding to quiet title and the statute particularly provides for intervention by any person having an interest in any lands, personal and substituted service of notice of intervenor’s petition upon persons known to have any interest in parcels of lands described by intervening petition and by posting of such notice on the premises (CL 1948, § 561.1 et seq.).
5. Same—Records—Primary Statutory Proceedings.
No one is deprived of property rights in the primary or principal proceedings brought under statute whose object was to provide for the establishment of and quieting title to and the recreating of the public records of lands in counties where the records have been destroyed in whole or in part (CL 1948, § 561.1 et seq.).
6. Constitutional Law—Due Process—Notice.
A fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them a reasonable opportunity to make their appearance and to present their objections.
7. Quieting Title—Statutes—Due Process—Notice—Substituted Service.
The notice and method of service provided by statute setting up procedure for establishment of and quieting title to and the recreating of the public records of lands in counties where the records have been destroyed in whole or in part held,, to comply with Pederal and State constitutional provisions as to due process, where personal notice is required insofar as persons interested are known and substituted service by publication as to others (CL 1948, § 561.1 et seq.).
8. Same—Records—Intervention—Evidence.
Evidence submitted incident to intervenors’ petition in proceedings for establishment of and quieting title to and recreating public records of lands in counties where the records have been destroyed in whole or in part held, to entitle intervenors to be decreed the owners in common of lands described in their petition (CL 1948, § 561.1 et seq.).
9. Costs—Public Question—Quieting Title—Records—Statutes —Constitutional Law.
No costs are allowed on appeal in ease primarily of public concern involving constitutionality and effectiveness of statute providing for proceedings for establishment of and quieting title to and recreating public records of lands in counties where records have been destroyed in whole or in part (CL 1948, § 561.1 et seq.).
Appeal from Montmorency; Wilcox (Arthur W.), J.
Submitted January 3, 1951.
(Docket No. 32, Calendar No. 44,916.)
Decided March 1, 1951.
Bill by Sidney G-assel, Prosecuting Attorney of Montmorency County under CL 1948, § 561.1 et seq. Fred B. Hill and another intervened and petitioned for quieting of title to lands they claimed to own. Petition dismissed. Petitioners appeal.
Reversed and decree for petitioners granted.
Harold H. Emmons, Jr. (Herbert W. Bice, of counsel), for petitioners.
Amici Curiae:
Donald K. Oillard, Philip J. Glennie, Donald M. Habermehl, Louis G. Jarboe, Lawrence D. Larke, and Arthur B. Wilkins.
Frank G. Millard, Attorney General, Edmund E. Shepherd, Solicitor General, and Daniel J. O’Hara, Assistant Attorney General, urging reversal. | 1903046 | Reid, C. J., and Boyles, Dethmers, Butzel, Care, Bushnell, and Sharpe, JJ., concurred. | Michigan | 699 | 2021-08-11T02:33:59.067804+00:00 | In re PETITION TO ESTABLISH AND QUIET TITLE TO LANDS AND RECREATING PUBLIC RECORDS IN MONTMORENCY COUNTY. HILL, INTERVENOR | In re Establish & Quiet Title to Lands & Recreating Public Records | In re PETITION TO ESTABLISH AND QUIET TITLE TO LANDS AND RECREATING PUBLIC RECORDS IN MONTMORENCY COUNTY. HILL, INTERVENOR. | CAP | Michigan Reports | bafkreihhbs3sjgfeudhz434mkulyfhzielbfh6rofilhxa7pzdmyu3gxe4 | North, J.
The relief sought in this statutory proceeding by Fred B. Hill and James Mathewson, intervening petitioners, was that a decree be entered "establishing and quieting title in petitioners" to 40 acres of land in Montmorency county, of which land they alleged they were the owners in common. The circuit judge, for reasons hereinafter noted, denied the relief sought. Petitioners have appealed.
A fire in 1943 completely destroyed the public records of Montmorency county, Michigan, particularly all of those relating to real estate. There was no independent abstract company functioning in the county. The only source of obtaining an abstract of title to real estate in Montmorency county was the office of the register of deeds. As a result of the 1943 fire the public, as well as private property owners, were left devoid of any acceptable public records of real estate titles. To provide a means of recreating public records of lands and quieting titles thereto, the legislature passed PA 1944 (1st Ex Sess), No 52 (CL 1948, § 561 et seq. [Stat Ann 1949 Cum Supp § 26.878(1) et seg.]). The act is entitled:
"An act to provide for the establishment of and quieting the title to and the recreating of the public records of lands in counties where records of title have been destroyed in whole or in any material part by fire, flood or other major disaster, and to establish the procedure therefor and to provide an appropriation to pay certain costs thereof."
We quote from the act as follows:
"Sec. 2. When the public records in the office of the register of deeds of any county have been, or shall hereafter be, lost or destroyed, in whole or in any material part, by fire, flood or other disaster, the circuit court in chancery for any such county shall have-jurisdiction and authority to hear and determine any: suit instituted under the provisions of this act, and the rights of the several parties in said suit, and it shall be the duty of the prosecuting attorney of such county, when directed by the board of supervisors of such county, to file a bill in chancery on behalf of the people of the State of Michigan and of the county to determine and quiet title in and to the lands in such county, the defendants in which shall be described as 'all persons having or claiming any interest in or lien upon the real property herein described, or any part thereof.' The court shall have jurisdiction of all real property affected by the loss or destruction of the records of the register of deeds. In case the entire records of the office of the register of deeds are not lost or destroyed, the circuit court shall take judicial notice thereof.
"Upon the filing of the bill of complaint the circuit court shall enter an order for appearance and fix a time and place for hearing. Such order for appearance shall be published for 6 successive weeks at least once each week, in a newspaper and, in every case within 30 days after the first publication of such order for appearance, a true copy shall be posted in a conspicuous place on the building in which the circuit court is sitting. The circuit judge may order such additional publications as the court shall deem necessary to give reasonable notice of the pendency of such suit.
"After the expiration of 90 days from the date of said order and upon proof of the publication provided for in the foregoing paragraph, the court on the date set for hearing or on an adjourned date therefor and upon hearing and proof thereof, shall enter a decree which shall state that the records in the office of the register of deeds have been lost or destroyed, in whole or in any material part, by fire, flood or other disaster and shall authorize the filing of intervening petitions as provided in section 5 of this act, and the issuance of orders based on testimony introduced under sections 5 and 6 of this act determining the interest or title to particular par.cels of land. The decree shall further provide that all persons entering appearance before the issuance of such decree shall be served personally or by registered mail by any petitioner in any proceedings hereafter instituted under section 5 of this act wherein such petitioner shall claim an interest in or lien upon the lands described in their appearance. Said decree shall further provide that all such appearances entered shall be recorded by the register of deeds and a reference to the book and page entered'upon a map provided for in section 8 of this act. The court is authorized to issue such further orders as it shall deem necessary." CL 1948, § 561.2 [Stat Ann 1949 Cum Supp § 26.878(2)].
From the foregoing, and other provisions of the statute hereinafter noted, it appears that the act in effect provides for a primary or principal proceeding in which jurisdiction of the trial court over the general subject matter is determined; and for supplemental or ancillary proceedings by intervening petitioners who seek adjudication of their individual rights to have title to specific parcels of real estate quieted and the record thereof recreated in the proper public records.
In the case before us no one entered an appearance as a defendant in the principal or primary proceeding. Had someone entered an appearance in the form provided by the statute, describing any land in which he claimed an interest, as required by section 2 of the act, he would have been entitled to service personally or by registered mail of notice of any subsequent intervening proceedings affecting the land described in his notice of appearance. And such appearance "recorded by the register of deeds," as provided in section 2, would afford at least some protection to a landowner against a possible claim subsequently made by an alleged innocent purchaser. Further, one who appeared in the initial proceeding might challenge the allegation in the bill of complaint of any fact essential to the assumption of jurisdiction by the court. At this point, we note that we are not in accord with the assertion in the amici curiae brief that one who had entered an appearance "had no right to frame an issue and be heard." The act by necessary implication, if not expressly, provided otherwise.
The circuit judge, for reasons hereinafter considered, held that the circuit court did not obtain jurisdiction in the primary or principal proceeding, and for that reason, among others, refused to grant the relief sought by these appealing intervenors. In the opinion filed by the circuit judge, to which reference is made in the decree, 3 reasons are stated in consequence of which he concluded "that the relief sought (by intervening petitioners, Hill and Mathewson) should be denied." We quote and consider these reasons in the following order:
(1) "Because, assuming the act to be valid, this court never obtained jurisdiction in the original action in and under which this petition is filed, notice not having been published and posted as required by the act."
The challenge to the jurisdiction of the court on the ground that notice of the original proceeding was not published and posted as required by the statute, arises from the following irregularity. In drafting the notice, i.e., the order for appearance, wherein reference to the statute under which the proceeding was had, the statute was designated as "Act No 34" (the enrolled act number) rather than No 52, which is the correct number of this act as embodied in PA 1944 (1st Ex Sess). Except for the noted inaccuracy, an order for appearance was published and posted in compliance with the act. Section 3 of the act provides: "The order for appearance shall be substantially in the folloiuing form or in such other form as may be prescribed by order of the court;" and sets forth in detail a form of the notice. Only in 2 places in the order for appearance proper is there provision for stating the number of the particular act, although there is also such provision in the statutory form provided for one desiring to appear in the proceeding. Wholly apart from this reference to the number of the act, the purpose of the proceeding, the subject matter involved, and the time and place of hearing are all clearly set forth in the notice for appearance. It is quite improbable that anyone who might have an interest in such a proceeding would be misled or otherwise prejudiced by an entire omission of the number of the act or an inaccurate statement of the number. Instead to a potentially interested party the number of the act would be quite universally inconsequential. He would be fully advised of the nature of the proceedings by the notice wholly apart from the recited act number. If perchance, in the instant case, one had checked Act No 34 (instead of Act No 52) he would have discovered that it was entirely foreign to any proceeding "to establish and quiet title to lands and recreating public records thereof," and the error in stating the number of the act would have been obvious at once. While we deem it of no material consequence incident to our decision herein, it may be noted that after 4 publications of the notice the error in stating the number of the act was corrected, under order of the court, in the last 3 publications of the notice, but there was no posting of the corrected notice.
The inaccuracy as to the number of the act was inconsequential. It was not misleading and did not result in failure of the court to acquire jurisdiction. Our conclusion in this respect is in accord with our former holdings pertaining to publication of notices incident to statutory foreclosures of real estate mortgages, which, like the proceeding in the instant case, pertains to title to lands.
In Reading v. Waterman, 46 Mich 107, a controlling issue was the regularity or validity of a statutory foreclosure. Justice Campbell, in writing the opinion for the Court, said:
"The only things absolutely required in the notice of sale are—the names of the parties original or by assignment, the date of the mortgage and of its record, the amount claimed to be due, and a description substantially agreeing with that in the mortgage."
The opinion discloses that in the body of the notice the name of the mortgagee appeared as "Dixon," whereas the name was properly "Dickson;" that the notice was first published December 18, 1852, but it was dated 10 days later, December 28, 1852, however this error was corrected in the course of the publications; that in the notice the date of the mortgage was correctly given in one instance but incorrectly in another; and that there was some irregularity in the mortgagee's name as it was signed to the notice of sale. Notwithstanding the noted inaccuracies, after reviewing the same, the Court held the foreclosure valid, and in its opinion said: "We are, therefore, of opinion that none of the mistakes were substantial, or operated in any way to the prejudice of Waterman (the mortgagor)." It is somewhat interesting to note that the holding in the Reading Case was reviewed by the United States supreme court in Bacon v. Northwestern Mutual Life Ins. Co., 131 US 258 (9 S Ct 787, 33 L ed 128), and that a headnote in the Bacon Case reads:
"This court concurs with the Supreme Court of the State of Michigan in holding that the misspelling-of the name of the mortgagee in an advertisement for the foreclosure of the mortgage by public sale under a power of sale in the mortgage in the manner required by the statutes of the State, and other errors in that advertisement which worked no prejudice to the mortgagor—as a reference in the advertisement to the record pointed out to all persons interested the means of obtaining true information and of correcting all mistakes—were not defects sufficient to defeat a title acquired at that sale."
In Peterson v. Jacobs, 303 Mich 329, the notice of a mortgage sale by advertisement failed to mention 2 assignments of the mortgage. The statutory requirements applicable to such a sale provide: "If it (the mortgage) shall have been assigned that all the assignments thereof shall have been recorded." See CL 1948, § 692.2 et seq. (Stat Ann § 27.1222 et seq.), particularly section 2. Notwithstanding this failure to comply with the statute, the Court, after referring to several other cases wherein irregularities of a somewhat similar character occurred, held in the Peterson Case that there "was not such a substantial irregularity so as to vitiate the sale."
First State Bank of Decatur v. Day, 188 Mich 228, is another case involving the validity of a mortgage sale by advertisement. The notice of the sale stated it would be held Friday, August 9th. August 9th was Saturday, and the sale was held on Saturday, August 9th. The validity of the sale was upheld notwithstanding the obvious irregmlarity in the notice, and the Court in its opinion stated:
"A trifling mistake in the notice of sale, not of such a nature as to mislead or injure any one (which notice was corrected during the course of publications), may be corrected in the subsequent publications of the notice, without affecting the validity of the proceedings."
In reaching our conclusion on this phase of the instant appeal, we have not overlooked the cases cited in the very fair and helpful amici curiae brief filed herein. The cases therein cited are to the general effect that there should be strict compliance with statutory provisions for substituted service, and "that there can be no jurisdiction without adequate notice." Streeter v. McMillan, 74 Mich 123, 128. However, in this jurisdiction, whether in a given case there has been substantial or reasonable compliance with the statutory requirements for substituted service and adequate notice, has been and should be determined in the light of reason as applied to the facts, the subject matter, and the issues of the particular case. This appears from our decisions last above cited.
(2) "Because the act in question is invalid in that it fails to provide a means of quieting title, which is its main purpose, any adjudication of rights under it remaining open to question indefinitely and never becoming final and conclusive."
We are not in accord with this conclusion of the circuit judge. He seems to have concluded that a decree granting relief to an intervening petitioner remains open to attack indefinitely, never becomes final, and therefore the provisions of the act pertaining to quieting title are ineffective. Section 7 of the act provides: "The circuit court in chancery shall have jurisdiction to determine interest or title to any parcel of land, whether the person entitled to such decree is in possession or not;" and section 8 provides: "The original or a certified copy of all decrees and orders determining interest or title to any parcel of land shall be filed with and shall be recorded without charge by the register of deeds." We think by the above provisions the act must be considered in the same light as the ordinary chancery decree entered in a proceeding to quiet title. Nothing is contained in the act indicating a lack of ultimate finality of a decree granting relief to an intervening petitioner. For the obvious purpose of protecting any person against unjust impairment of an interest he may have in the lands involved,, the act in section 5 provides:
"Any person having any interest in or lien upon any parcel or parcels of land covered by said bill of complaint may, within 3 years after the entering of the decree provided for in section 2 of this act, or after said 3 year period by permission of the court on cause shown, intervene in said proceedings and petition the circuit court to establish his interest therein or lien thereon, and said circuit court shall have jurisdiction to hear and determine such interest or lien and determine the interest of all claims adverse thereto." CL 1948, § 561.5 [Stat Ann 1949 Cum Supp § 26.878(5)].
Subject to the provision just above noted, and evidently for the purpose of affording ultimate finality to a decree granting relief to an intervening petitioner, section 5 of the act further provides:
"Service of the summons issued under said intervening petition shall be made personally or by registered mail on any person or persons known to have an interest in any of the parcels of land described in said intervening petition, and service as to persons unknown shall be deemed to have been made by the general publication provided for in sections 2 and 3 of this act. The intervening petition shall be sworn to by the moving party, his agent or attorney, and shall state that the affiant does not know and has been unable after diligent search and inquiry to as certain the names of the persons who are included as defendants therein without being named.
"All persons, other than the intervening petitioner, in actual possession of land included within the claim under any intervening petition shall be served with a copy of the summons required under this section and if personal service cannot be obtained upon such persons, then a copy of the summons shall be posted in a conspicuous place on a building used for residence purposes on such land, if any, or if there is no residence building, then on some other building thereon."
In our opinion the provisions of the act herein-before quoted, in connection with other provisions therein, afford ample procedural provisions to render the statutory proceeding and relief properly granted thereunder effective; and we think the trial judge was in error in concluding that the act "fails to provide a means of quieting title," or that "any adjudication of rights under it # [will remain] open to question indefinitely and never [become] final and conclusive."
(3) "Because the act under which the petition is filed is invalid in that the notice and method of service therein provided are entirely inadequate and do not meet the requirements of the State and Federal Constitutions for due process of law."
In view of what we have already written in this opinion, and for additional reasons about to be noted, we cannot concur in the conclusion of the circuit judge that this Act No 52 "is invalid in that the notice and method of service therein provided are entirely inadequate and do not meet the requirements of the State and Federal Constitutions for due .process of law."
In the instant cast it is important to note that by the decree in the primary or principal proceeding no one is deprived of property rights. Relative to what constitutes due process, the United States supreme court in Mullane v. Central Hanover Bank & Trust Co. (1950), 339 US 306, 314 (70 S Ct 652, 94 L ed 865), said:
"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. (Citing-cases.) The notice must be of such nature as reasonably to convey the required information, (citing case) and it must afford a reasonable time for those interested to make their appearance. (Citing-cases.) But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied. 'The criterion is not the possibility of conceivable injury but the just and reasonable character of the requirements, having reference to the subject with which the statute deals.' (Citing cases.)"
One of the headnotes in the Mullane Case reads:
"The statutory notice by publication is sufficient as to any beneficiaries (in a trust) whose interests or addresses are unknown to the trustee, since there are no other means of giving- them notice which are both practicable and more effective."
In our judgment the procedural requisites in Act No 52 as to "the notice and method of service" comply with Federal and State constitutional provisions as to due process. As bearing upon this phase of ¡ the instant case, see 34 Am Jur, Lost Papers & Records—Statutory Provisions, § 28, and Judicial Proceedings and Relief, § 29, pages 603, 604; American Land Co. v. Zeiss, 219 US 47 (31 S Ct 200, 55 L ed 82); Bertrand v. Taylor, 87 Ill 235.
The remaining matter presented on this appeal is whether the intervening petitioners, Fred B. Hil] and James Mathewson, submitted to the trial court sufficient proof to entitle them to a decree granting the relief sought. Since the circuit judge decided the case on other grounds, he did not pass upon this issue. However we hear the case de novo, and, hence, may pass upon the sufficiency of the evidence as included in the record now before us. There was no objection incident to this phase of petitioners' proceedings. We have considered the evidence submitted and find that it clearly entitles the intervening-petitioners to be decreed the owners in common of the lands described in their petition.
A decree may be taken in this Court in accord with the foregoing opinion in which decree it may be provided that as against the reasons presented on this appeal PA 1944 (1st Ex Sess), No 52, is constitutional, and that the proceedings taken under the act in the instant case were in substantial compliance with the statute and vested jurisdiction in the circuit court to hear and determine intervening pe.titioners' rights; and further, that the intervening-petitioners are the owners in common of fee title to the lands described in their petition, and that a certified copy of the decree to be entered herein may be filed and recorded, as provided in section 8 of the act, in the office of the register of deeds in Montmorency county, thereby recreating record title to said lands. The case being one primarily of public concern, no costs are awarded.
Reid, C. J., and Boyles, Dethmers, Butzel, Care, Bushnell, and Sharpe, JJ., concurred.
Statutory Form:
"STATE OF MICHIGAN
"IN THE CIRCUIT COURT FOR THE COUNTY OF .
"IN CHANCERY
"State of Michigan. In Re Petition to Establish and Quiet Title to Lands and Recreating Public Records Thereof Under Act...... of the Public Acts of 1944, First Extra Session.
"In the name of the people of the State of Michigan. To all persons claiming any interest in or lien upon the real property herein described or any part thereof including their unknown heirs, devisees, legatees and assigns, as the case may be, greetings:
"Take notice, that the record title to all of the lands in...........county is in question by reason of the loss or destruction of records in the office of the register of deeds therof, and in consequence thereof on the . . day of.............A. D. 19....., a bill of complaint was filed in the circuit court for the county of..............in chancery, to establish and quiet title to the aforementioned lands, more particularly described as: (here insert a description of the real property in said county as contained in the bill of complaint and such additional descriptive language as may be ordered by the court). Now, unless you appear on or before the .day of..................,19....., in said court, (naming a return day at least 90 days from the date of said order of appearance) and show your interest in any part of said aforedescribed real property, said bill of complaint shall be taken as confessed, and a decree entered pursuant to Act No . (here insert number of this act) of the Public Acts of 1944 Extra Session. Your appearance in this action shall be substantially in the following form or in such other form as may be prescribed by order of the court.
"STATE OP MICHIGAN
"IN THE CIRCUIT COURT POR THE COUNTY OF .
"IN CHANCERY
"In Re Petition to Establish and Quiet Title to Lands and Recreating Public Records Thereof Under Act........ of the Public Acts of 1944, First Extra Session.
"APPEARANCE
"I..............residing at.................... (Name) (Street or R.F.D.) .County of........., State (Village, town or city) of . do hereby enter my appearance and claim an interest in or lien upon the following described property to wit: .
(Signature)
(Address)
(Here type or print name and address given above)
"Subscribed and sworn to before me this.....day of............, A.D. 19......
(Name, title and address of party administering oath including commission or term expiration)
"It is further ordered that within 10 days a copy of this order be published in the.................... (a newspaper published in the county of .) such publication to be continued therein once in each week for 6 weeks in succession.
(Circuit Judge)
Countersigned:
Clerk of Circuit Court
"Any and all persons appearing hereunder shall state the address at which they can be served with process in any proceedings under this act, and shall file with the register of deeds of the county any change of address, which change shall be noted by the register of deeds on the margin of the recorded appearance." CL 1948, § 561.3 [Stat Ann 1949 Cum Supp § 26.878(3)]. | 329 | 5106 |
6709 | bafkreig6xxzk3hh2gtor4rwjskfkbyb574d4kgt3darfmmjhsct4vxpnwq | 68 Mich. App. 272 | Michigan Court of Appeals | 1976-03-25 | Docket No. 21100 | 272 | PEOPLE v FREED
1. Arrest — Michigan State Police — Authorization—Governor— Attorney General — Authorized Subordinates — Statutes.
Arrests made by officers of the Michigan State Police do not have to be personally authorized by the Governor or the Attorney General since the Legislature in enacting a statute providing for the state police to serve and execute all criminal and civil process upon direction of the Governor or the Attorney General intended that these officials act through duly authorized subordinates (MCLA 14.35, 28.6; MSA 3.188, 4.436).
2. Arrest — Michigan State Police — Service of Civil Process— Governor — Attorney General — Authorization—Statutes.
The Michigan State Police may serve civil process when directed by the Governor or the Attorney General in actions in which the state is a party; therefore, a defendant was properly arrested by the Michigan State Police, where the arrest was pursuant to a bench warrant issued by a circuit judge in an action in which the defendant was being sued by the State of Michigan, and the arrest was authorized by an Assistant Attorney General (MCLA 14.35, 28.6; MSA 3.188, 4.436).
3. Appeal and Error — Motion for Preemptory Reversal — Trial Transcript — Specificity.
A defendant’s motion for preemptory reversal which alleged that the trial judge withheld from him portions of the transcripts of the defendant’s trial should be denied where the defendant fails to specify which portions of the transcript were withheld.
Appeal from Livingston, Paul R. Mahinske, J.
Submitted February 3, 1976, at Lansing.
(Docket No. 21100.)
Decided March 25, 1976.
James D. Freed was convicted of carrying a concealed weapon and carrying a firearm with unlawful intent. Defendant appeals.
References for Points in Headnotes
[1, 2] 62 Am Jur 2d, Process §§ 8, 10.
[3] 5 Am Jur 2d, Appeal and Error § 648 et seq.
Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Thomas J. Kizer, Jr., Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Edward R. Wilson, Director and Dennis M. Powers, Special Assistant Attorney General, of counsel), for the people.
James D. Freed, in propria persona.
Before: M. J. Kelly, P. J., and V. J. Brennan and Danhof, JJ. | 2146855 | Before: M. J. Kelly, P. J., and V. J. Brennan and Danhof, JJ. | Michigan | 275 | 2021-08-10T17:23:25.454981+00:00 | PEOPLE v. FREED | People v. Freed | PEOPLE v FREED | CAP | Michigan appeals reports; cases decided in the Michigan Court of Appeals. | bafkreiayb6hpw2nusplrrd3wk7yyz3ql75ymnalbgcicfjgolj6v3fjunu | Per Curiam.
Defendant, James Donald Freed, was convicted of carrying a concealed weapon, MCLA 750.227; MSA 28.424, and carrying a firearm with unlawful intent, MCLA 750.226; MSA 28.423, on June 6, 1974, after a two-day jury trial. On July 16, 1974, defendant was sentenced to concurrent prison terms of 2-1/2 to 5 years on each count. Defendant appeals as of right.
Defendant was arrested by Michigan State Police officers pursuant to a bench warrant issued by the Ingham County Circuit Court which was hearing a tax case in which the defendant was being sued by the State of Michigan. In a search incident to the arrest, the officers found and seized a .22-caliber pistol which defendant was carrying concealed on his person without a license to do so. Defendant moved to suppress the evidence on the grounds that it was the fruit of an illegal arrest. Defendant's motion was denied.
Defendant contends that his arrest by the Michigan State Police was unauthorized and unlawful, relying on MCLA 28.6; MSA 4.436. The statute provides in pertinent part:
"Any such member of the said department may serve and execute all criminal and civil process, when directed to do so by the governor or the attorney general, in actions and matters in which the state is a party. The commissioner and said department shall be under the immediate control and direction of the governor, and any member thereof may be employed by the attorney general in any investigation or matter under the jurisdiction of his department."
Defendant contends that his arrest was in contravention of this statute, in that the arrest was not personally authorized by the Governor or the Attorney General. We disagree. We note that MCLA 14.35; MSA 3.188 provides that an assistant attorney general may:
" appear for the state in any suit or action before any court or administrative body with the same powers and duties and in like cases as the attorney general, but shall at all times be subject to the orders and directions of the attorney general."
We do not believe that the Legislature intended that the Attorney General or the Governor personally authorize each and every arrest made by an officer of the Michigan State Police. Rather, we think the Legislature intended that the Governor and the Attorney General act through duly authorized subordinates.
We are cited to no case which expressly construes the provisions of this statute, and we can find none. The Attorney General of the State of Michigan, however, has consistently opined that the Michigan State Police may serve civil process when directed by the Governor or the Attorney General in actions in which the state is a party. See 1 OAG, 1957, No 2,883, p 160 (April 12, 1957) and other opinions cited therein. We agree with the Attorney General.
In the case at bar, the arrest was authorized by an Assistant Attorney General and the State of Michigan was a party to the action. We hold that the officers of the Michigan State Police were authorized by MCLA 28.6; MSA 4.436 and MCLA 14.35; MSA 3.188 to arrest the defendant.
Defendant's reliance on the case of United States v Giordano, 416 US 505; 94 S Ct 1820; 40 L Ed 2d 341 (1974), is misplaced. There, the United States Supreme Court in construing 18 USC § 2516(1) held that the statute must be read as limiting the authority to authorize wiretaps to the officials specified in the statutory language, since the statute was intended as a prophylactic device designed to prevent abuses of the wiretap power by insuring that the power would be granted only to a small number of identifiable and politically responsible individuals. Such policy considerations are notably absent from the case at bar, so we find Giordano inapposite.
Finally, defendant contends that certain portions of the transcript were withheld from him by the trial judge. This Court has previously ruled on this matter by an order dated November 12, 197,5. Therein we denied defendant's motion for preemptory reversal,
"because the defendant-appellant has failed to specify the portions of the transcript which are allegedly being withheld by the trial judge. This denial is without prejudice to the appellant's filing in this Court of an appropriate motion specifying those portions of the transcript which he alleges are being withheld."
Since the defendant has not favored us with such a specific motion, we see no reason to disturb that portion of our November 12, 1975, order..
Affirmed. | 68 | 1100 |
5309 | bafkreigyazlawsmw2loqmftiin7uciuie326aaxv3tx6ep3bjt4uw3qag4 | 302 Mich. 381 | Michigan Supreme Court | 1942-07-01 | Docket No. 18, Calendar No. 41,470 | 381 | In re KIRKPATRICK’S ESTATE. KIRKPATRICK v. NOLAN.
Descent and Distribution — Widow’s Election — Personal Property.
When the widow of a testator elects to take under the statute rather than will, her election entitles her to take one-third of the personalty until her share amounts to $5,000 and thereafter one-sixth of the residue where testator also left four children by a former marriage surviving him (3 Comp. Laws 1929, §§ 15564, 15726).
Appeal from Wayne; Dehnke (Herman), J., presiding.
Submitted June 3, 1942.
(Docket No. 18, Calendar No. 41,470.)
Decided July 1, 1942.
Rehearing denied September 8,1942.
In the matter of the estate of Littleton Kirkpatrick, deceased. Petition by Doris B. Kirkpatrick for authority to institute suit on the surety bond of executrix Myrtice M. Nolan. Executrix Nolan and the Fidelity & Deposit Company of Maryland objected thereto. From denial of petition, petitioner appealed to circuit court. Judgment for objectors. Petitioner appeals.
Affirmed.
J. H. M. Alexander, for petitioner.
Belanger, Wood, Jacquemain & Werner, for objectors. | 1823408 | Chandler, C. J., and Boyles, Starr, Butzel, Bushnell, and Sharpe, JJ., concurred. Wiest, J., did not sit. | Michigan | 384 | 2021-08-11T02:32:29.479993+00:00 | In re KIRKPATRICK'S ESTATE. KIRKPATRICK v. NOLAN | Kirkpatrick v. Nolan | In re KIRKPATRICK’S ESTATE. KIRKPATRICK v. NOLAN. | CAP | Michigan Reports | bafkreia55w5rf4jukq4hancxsyem5rxem4n22pasasljawxtoev2mr6umy | North, J.
Plaintiff is the widow of Littleton Kirkpatrick, deceased. She and four children by a former marriage survive him. He made no provision in his will for his widow or any immediate member of his family; but instead made Myrtice M. Nolan his sole beneficiary. Plaintiff elected to take under the statute of distributions. 3 Comp. Laws 1929, § 15564 (Stat. Ann. § 27.2664). As the probate proceedings progressed it developed that the executrix, Myrtice M. Nolan, had on hand $1,572.86 belonging to the estate. Plaintiff, claiming she has preferred rights in the estate in consequence of her election to take under the statute to the extent of $5,000, demanded payment to her of all of the personalty in the estate, i. e., $1,572.86. The executrix did not comply with this demand. But she did tender to plaintiff one-third of the personalty belonging to the estate. This tender was declined by plaintiff, and she thereupon petitioned the probate court for authority to institute suit against the executrix and her surety to compel payment to plaintiff of the full amount of the $1,572.86 held by the executrix. See Act No. 228, chap. 4, § 19, Pub. Acts 1939 (Comp. Laws Supp. 1940, §16289-4 [19], Stat. Ann. 1941 Cum. Supp. § 27.3178 [269] et seq.). The probate court denied the prayer of this petition. Upon appeal to the circuit court the order of the probate court was affirmed, and plaintiff has appealed.
Plaintiff's contention is indicated by the following in her brief:
"When the widow elected to take under the election statute the effect was to prevent the legatee from receiving any part of the estate until after the widow's shares of the first five thousand dollars and one-half of one-third amounting to one-sixth of the 'personal residue' are to her paid. In the final analysis the legatee may take under the will only after the widow's election shares are paid."
This contention of appellant cannot he sustained. It is contrary to the Michigan statute and to our former decisions. ' When a widow elects to take under the statute her election entitles her "to take the sum or share that would have passed to her, under the statute of 'distributions, had the testator died intestate, until the sum shall amount to five thousand dollars, and of the residue of the estate one-half the sum or share that would have passed to her under the statute of distributions, had the testator died intestate, and in case no provision be made for her in said will, shall be entitled to the election aforesaid." 3 Comp. Laws 1929, § 15564 (Stat. Ann. §27.2664). See Act No. 288, chap. 2, § 69, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-2 [69], Stat. Ann. 1941 Cum. Supp. §27.3178 [139]). Prom the foregoing it appears that upon making her election the widow as to the first $5,000 takes ' ' the sum or share that would have passed to her, under the statute of distributions, had the testator died intestate. ' ' The pertinent portion of the statute controlling the share the widow takes in the intestate estate of her deceased husband reads as follows:
"The residue (after debts, allowance for family maintenance, et cetera), if any, of the personal estate shall be distributed as follows: One-third thereof to the widow of the deceased, and the remaining two-thirds to his children, or the issue of any deceased child or children, if any there be, by right of representation, except that if there be but one child, or the issue of such child living, then to the widow one-half of such residue and • to such child, or the issue thereof, the other half. ' ' 3 Comp. Laws 1929, § 15726 (Stat. Ann. §27.2891). See Act No. 288, chap. 2, § 93, subd; 4, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-2 (93), Stat. Ann. 1941 Cum. Supp. §27.3178 [163]).
Appellant was before this Court in the recent case of Kirkpatrick v. Nolan, 293 Mich. 42; and we therein decided adversely to her contention the same question presented by this appeal. It seems unnecessary to duplicate decision herein. See, also, Phillips v. Phillips, 91 Mich. 433.
Dismissal of plaintiff's petition in the circuit court is affirmed. Costs to appellees.
Chandler, C. J., and Boyles, Starr, Butzel, Bushnell, and Sharpe, JJ., concurred. Wiest, J., did not sit. | 302 | 886 |
15610 | bafkreieuslm2y6zbgmxmcbs2fhq6ngc2mzznoiohkyjiyulkycom4qsgbm | 381 Mich. 73 | Michigan Supreme Court | 1968-06-10 | Calendar No 13, Docket No. 51,743 | 73 | KWAISER v. PETERS.
Decision of the Court.
1. Intoxicating Liquors — -Dramshop Act — Equally Divided Court. Verdict and judgment of no cause of action in action under dramshop aet is aiiirmecl by an equally divided Court (CLS 1961, §§ 436.22, 600.230).
Separate Opinion for Reversal.
Black, T. M. Kavanagh, Souris, and O’Hara, JJ.
2. Jury — Fraternization Between Party and Juror.
Fraternization between defendant, his counsel, and one of the jurors in defendant’s tavern shortly after jury returned a verdict of no cause of action in action for damages under the dramshop act held, not grounds for reversal, absent a showing of prejudice (CLS 1961, § 436.22).
3. Same — Voir Dire Examination.
A litigant is entitled to truthful answers from a prospective juror on his voir dire examination.
4. Same — Questionnaires—False Answers — Challenges.
Giving of false answers on a “juror personal history questionnaire” by 1 of the jurors in action under dramshop act, who denied conviction of anything other than nonmoving traffic violation, when in fact he had been convicted at least 9 times of moving traffic violations, is grounds for granting a new trial since a false answer diverts counsel’s inquiry on voir dire and precludes his effective exercise of his client’s right lo challenge the juror (Const 1963, art 1, §14; CLS 1961, § 436.22; GCB 1963, 510).
References for Points in Headnotes
5 Am Jur 2d, Appeal and Error § 902.
53 Am Jur, Trial §§ 459, 900, 906.
31 Am Jur, Jury §§ 142, 143,
Separate Opinion for Affirmance.
Dethmers, O. J., and Kelly and T. E. Brennan, JJ.
5. Jury — Questionnaires—False Answers — Challenges.
Giving of false answers on the “juror personal history questionnaire” by one of the jurors in action under dramshop act held, not to be ground for reversal, where juror was given no opportunity to explain the diserepancies in the questionnaire, there is nothing in the record to suggest that his answers to the questionnaire influenced the members of the jury in rendering a verdict, there was a total absence of proof that the faulty answers resulted in a miscarriage of justice, and the jury verdict against plaintiff was by 11 of the 1% jurors (Const 196S, art 1, § 14; CLS 1961, § 4S6JS8; GCM 196S, 510).
6. Same — Questionnaires—False Answers. ' ,
Proof that one juror gave inaccurate or untrue answers on the “juror personal history questionnaire” does not nullify a jury verdict and eall for a new trial (GCM 196S, 510).
Separate Opinion for Affirmance.
Adams and T. E. Brennan, JJ.
7. Jury — Questionnaires—False Answers.
Courts should be sure questionnaires answered by jurors are reliable and truthful, and should cite for contempt a juror who has given untruthful answers, but parties to a lawsuit ought not be subjected to q new trial unless the false answers misled counsel and the result might have been affected.
Appeal from Court of Appeals Division 3, Burns, P. J., Fitzgerald and T. G-. Kavanagh, JJ.,. affirming Saginaw, Borchard (Fred J.), J.
Submitted January 11, 1968.
(Calendar No 13, Docket No. 51,743.)
Decided June 10, 1968.
6 Mich App 153, affirmed by an equally divided court.
Declaration by Gerald F. Kwaiser,- Jr., against Charles B. Peters, doing business as Peter’s Bar, and others for damages sustained by plaintiff under the civil damages provision (dramshop act) of the liquor control act. Other defendants dismissed before trial. Judgment for defendant Peters. Affirmed by Court of Appeals. Plaintiff appeals.
Affirmed by an equally divided court (CLS 1961, § 600.230 [Stat Ann 1962 Rev § 27A.230]).
Joseph J. Trogan, for plaintiff.
Stanton, Davidson & Carl, for defendant. | 1889053 | Black, T. M. Kavanagh, and O’Hara, JJ., concurred with Souris, J. | Michigan | 81 | 2021-08-11T02:34:09.658419+00:00 | KWAISER v. PETERS | Kwaiser v. Peters | KWAISER v. PETERS. | CAP | Michigan Reports | bafkreiap3fycgquncopa26jvzujf4ovnyzgnkeko6rufpuccmh4436ahgi | Souris, J.
(for reversal and remand). We granted leave to appeal for the limited purpose of determining whether the trial court erred in denying plaintiff's motion for new trial based upon allegations that a juror improperly associated with defendant and his counsel immediately after verdict favorable to defendant and that the same juror falsely answered his personal history questionnaire required by GCR 1963, 510. 379 Mich 765. The Court of Appeals affirmed the trial court. 6 Mich App 153.
At an evidentiary hearing on plaintiff's motion for new trial, witnesses testified that within about an hour after return of the jury's verdict, the defendant tavern owner and one of the jurors entered the defendant's tavern, where they were joined soon thereafter by defendant's trial counsel and several members of counsel's law firm. At least some of the group, including the juror] were served beverages. None of the witnesses heard any of the conversation of the group of which the juror was a part.
The juror, the defendant, and the defendant's lawyers were not called by plaintiff to testify at the hearing on his motion, nor did they testify voluntarily. No other proofs were offered from which it could be found that the juror was known by the defendant or his attorneys before the trial or that, they had com lmmicated about the caso privately before or during the trial. In short, this record is barren of any evidence that the plaintiff was prejudiced by the conduct of defendant, his attorneys, and the juror. The question becomes whether, absent a showing of prejudice, a new trial should have been granted because defendant and his attorneys fraternized with a juror immediately after a verdict was rendered favorable to defendant.
Just recently, in People v. Schram (1966), 378 Mich 145, where the assistant prosecutor, during the trial of a criminal case, conversed with two jurors, a majority of this Court refused relief to the defendant absent a showing of prejudice to him. Other criminal cases were cited by our majority in Schram in support of its conclusion. If prejudice must be shown affirmatively, even in a criminal case and even when the alleged misconduct occurred during trial, no less is required in a civil case in which the alleged misconduct occurred after verdict. Indeed, in Hoskin-Morainville Paper Co. v. Bates Valve Bag Corp. (1934), 268 Mich 443, this Court, unanimously, said so. A majority of this Court is not prepared to overrule Hosldn and Schram, and the other criminal cases cited in Schram. Accordingly, plaintiff's appeal on this ground must fail.
At the hearing on the plaintiff's motion for new trial, evidence was introduced to support plaintiff's claim that the same juror answered the juror personal history questionnaire, required by GrCR 1963, 510, untruthfully in several respects. For example, he wrote on the questionnaire that he never had been convicted of a crime or misdemeanor other than for a nonmoving traffic violation. However, plaintiff's evidence showed that the juror had been convicted for moving traffic violations at least nine times from 1953 through 1963. Again, with reference to this aspect of the inquiry before the trial court, the juror was not called to testify by either party. On this record, therefore, and for the purpose of this decision only, we must conclude that the juror perjured himself in answering as he did his juror's questionnaire.
We have held that a party is entitled to truthful answers from a prospective juror during his voir dire examination. Wood v. Henley (1941), 296 Mich 491, 497, and In re Petition of City of Detroit to Condemn Lands for Sewage Disposal Plant (1937), 280 Mich 708, 716. In Wood, supra, a juror failed to disclose an indebtedness to the plaintiffs. When plaintiffs discovered this fact, during trial, their motion for mistrial based thereon was denied on the ground that plaintiffs had every opportunity to know the facts before trial commenced and, in any event, mere indebtedness to a party, it was said, does not disqualify a juror. Wood, however, does acknowledge the general proposition that litigants are entitled to truthful answers on voir dire. No reason has been suggested to us for reaching a contrary conclusion with reference to the juror's questionnaire required by our court rules only since January 1, 1963.
In this case, unlike Wood, supra, the juror's false answer was not such that either litigant could have known the facts except fortuitously. Furthermore, had the question been answered truthfully, it is much more likely than not that further inquiry would have been made by either counsel or by both at the voir dire examination. As has been said before, a litigant's right to trial before an impartial jury (Const 1963, art 1, § 14) requires that he be given an opportunity to obtain the information necessary to challenge prospective jurors for cause or peremptorily. Bunda v. Hardwick (1965), 376 Mich 640 (dissenting opinion).
A false answer on a juror's questionnaire, such as was given here, diverts counsel's inquiry on voir dire and thereby precludes his effective exercise of his client's right to challenge the juror. If we are to insist upon counsel's use of the questionnaire to facilitate and expedite voir dire examinations (see Fosness v. Panagos [1966], 376 Mich 485), we must be prepared to assure counsel that the questionnaires are reliable in every material respect and, if they are not, we should be prepared to order a new trial as well as to cite the errant juror for contempt of court. The trial court, as far as this record shows, did neither in this case.
I would reverse and remand for new trial. Plaintiff should be allowed to tax his costs.
Black, T. M. Kavanagh, and O'Hara, JJ., concurred with Souris, J.
Kelly, J.
(for affirmance). I do not agree with Justice Souris' reversal and remand for new trial. I vote to affirm.
Juror Ruff us Thomas' answers on the form entitled "Juror Personal History Questionnaire" disclosed that he had been a resident of Saginaw county for 18 years; that he was 43 years old, married, and lived at home with his 7 children between the ages of II and 4; that he was employed at the Saginaw Malleable Iron Works as a "chiper"; that he had previously been employed as a barber; that he only had a seventh-grade education; that he owned a car in surecl with "Penis Insurance Co."; that he had been in an accident and that his wife had also been in an accident; that he had never served as a juror before filling out the questionnaire.
During the course of the trial, juror Ruffus Thomas asked the court to be excused from jury duty because of his sister's death and his father's involvement in a serious automobile accident. A conference with the attorneys was held in the judge's chambers, and the court suggested that juror Thomas be released from further duty and the case be allowed to proceed to a verdict by 10 of 11 jurors. Defendant's counsel agreed, but plaintiff's counsel would not, and insisted that Thomas remain on the jury. The court thereupon adjourned the trial to allow juror Thomas to make a trip to Tennessee.
This was an action against Charles B. Peters, doing business as Peter's Bar, under the civil damages provision of the so-called "dramshop act." The sole question for jury determination was whether or not the defendant, Charles B. Peters, or his agents, servants, or employees, served alcoholic beverages to one Harvey Krause so as to cause or contribute to his intoxication.
The July 13, 1965, entry in the "Docket Entries" in this case is as follows:
"Verdict of jury (4:10 p.m.). No cause for action. Jury was polled, 11 jurors affirming and 1 juror dissenting. Jury excused from further deliberations in this cause. Motion by plaintiff for 20-day stay of execution granted by the court."
No proof has been submitted to this Court as to how juror Ruffus Thomas voted. Conceding that he voted against plaintiff's claim, the record shows that there still would be 10 jurors voting "No cause of action," in addition to Thomas. And 10 jurors agreeing upon a verdict is sufficient to sustain the verdict.
We quote from the decision of the Court of Appeals affirming the judgment, 6 Mich App 153, 161, 162:
"Plaintiff does not argue that he would have challenged the juror in question had the erroneous responses been revealed prior to trial.
"It is interesting to note that the juror was limited to a seventh grade education and that he was not called to explain the discrepancies in the questionnaire. In answering the questionnaire he stated that he had insurance and listed the company as 'Fénix Insurance Company.' The problem remains: Did the juror misspell the company name or, as plaintiff implies, was he uninsured? Plaintiff has neglected to inform us and evidently has not attempted to ascertain this information. The juror admitted he had been involved in an automobile accident and that his wife had been involved in an accident. Surely these are pertinent answers calling for additional exploration by counsel. However, counsel did not pursue this leading information. It can also he observed that the juror originally answered question 43 on the questionnaire, which was: 'Have you ever been convicted of a crime or misdemeanor (other than for a nonmoving traffic violation) ?' with a 'Yes' answer. This was erased and answered, 'No.'
"There may be an explanation for these discrepancies, but evidently counsel was not interested in an explanation but only in creating error. Plaintiff has not convinced this Court that he was unduly preju diced by juror Thomas' answers to the jury questionnaire."
Nothing in this record even suggests that juror Ruffus Thomas' answers to the questionnaire influenced the members of the jury in rendering a verdict, and there is a total absence of proof that those faulty answers resulted in a miscarriage of justice.
We have never in the past and should not now hold that proof that one juror gave inaccurate or untrue answers on the questionnaire nullifies a jury verdict and calls for a new trial.
Affirmed. Costs to appellee.
Dethmers, C. J., and T. E. Brennan, J., concurred with Kelly, J.
Adams, J.
(for affirmance). I agree with Justice Souris that the courts should see to it that the questionnaires answered by jurors are reliable and truthful in every material respect. A juror who has given untruthful answers should he cited for contempt and duly punished if found guilty. On the other hand, the parties to a lawsuit ought not to he subjected to a new trial unless the false answers are shown to he such that counsel was misled and that the result might have been affected. In this case I agree with Justice Kelly that there is "a total absence of proof that those faulty answers resulted in a miscarriage of justice." I, therefore, vote to affirm the Court of Appeals, with costs to appellee.
T. E. Brennan, J., concurred with Adams, J.
People v. Kangas (1962), 366 Mich 201; People v. Nick (1960), 360 Mich 219; People v. Pizzino (1945), 313 Mich 97, and People v. Whittemore (1925), 230 Mich 435.
Other evidence tends to support plaintiff's claims that the juror answered other questions falsely, but we need not advert to these other claims, considering that they are cumulative and that the evidence supporting them is not as certain as is the evidence of the juror's moving traffic convictions.
CLS 1963, § 436.22 (Stat Ann 3968 Cum Supp § 18.993).
Const 1963, art 1, § 14: "The right of trial by jury shall remain, but shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law. In all civil eases tried by 12 jurors a verdiet shall be received when 10 jurors agree."
PA 1963 (2d Ex Sess), No 17, added section 1238 to the revised judicature act, as follows: "In all civil eases tried after January 1, 1964 by 12 jurors, a verdict shall be received when 10 jurors agree." (MOLA § 600.1238 [Stat Ann 1968 Cum Supp §27A,1238]). | 381 | 2624 |
19069 | bafkreiaw2pxo4ar2qdj6apuxztzkdfnuh5djmyrn6jgxpdp6vbquz3tlqq | 321 Mich. 225 | Michigan Supreme Court | 1948-05-18 | Docket No. 37, Calendar No. 43,953 | 225 | WHITE v. HUFFMASTER.
1. Automobiles — Place and Proximate Cause op Accident — Question poe Jury.
Where the testimony for the respective parties was in conflict as to how and where collision occurred between defendants’ automobile and motorcycle on which plaintiff was a passenger and who was the proximate cause thereof, it was for the jury to determine such matters, hence plaintiff was not entitled to a directed verdict.
2. Trial — Motion por Directed Verdict — Evidence.
In passing on plaintiff’s motion for a directed verdict it is the duty of the trial court to construe the testimony in the light most favorable to the defendants.
3. Same — Directed Verdict.
A verdict may not properly be directed in favor of either party when an issue of fact is presented for the jury’s determination.
4. Same — Form of Verdict — Negligence—Proximate Cause.
In action by motorcyclist’s passenger against defendant motorist for injuries sustained at street intersection as motorcyclist was making a left turn, the mere statement that the jurors had concluded that both the motorcyclist and defendant motorist were guilty of negligence but that the motorcyclist was the direet cause of the accident and defendant should not be held liable was not a proper verdict since it wholly ignored the matter of proximate cause or eauses of the accident.
References for Points in Headnotes
1J 5 Am. Jur., Automobiles, §§ 667, 669, 715.
1, 3] 53 Am. Jur., Trial, § 365.
2] 53 Am. Jur., Trial, § 349.
4] Automobiles: Cutting corners as negligence. 6 A.L.B. 321.
1C ] 53 Am. Jur., Trial, § 1019.
<D ,10] 53 Am. Jur., Trial. §§ 555, 836, 838.
t- /] 5 Am. Jur., Automobiles, § 324.
8, 9] 5 Am. Jur,, Automobiles, § 494.
5. Same — Verdict in Improper Form — Poll of Jury — Return to Jury Room — Discretion of Court — Mistrial.
In action between passenger on motorcycle and motorist for personal injuries sustained in intersection collision, it was not an abuse of discretion on part of trial court to return jurors to their room for further deliberations where foreman’s statement that jury felt both the motorcyclist and motorist were guilty of negligence and indicated verdict was for no cause of action, and poll of jury disclosed lack of unanimity in such conclusion, nor was it error to deny motion for mistrial under the circumstances.
6. Same — Instructions—Negligence—Confusion of Jurors — Explanation.
Where it appears that under instructions theretofore given, the jurors were confused as to what the issues were in action by motorcyclist’s passenger against motorist, it was error to fail to give such explanation as would have reasonably clarified the situation, especially where previous instructions contained contradictory and somewhat ambiguous statements and it was the first negligence case which the particular jurors had considered.
7. Negligence — Proximate Cause.
There may be more than one proximate cause of an accident occurring between two motor vehicles traveling in opposite directions where one of them attempted to make a left turn at an intersection.
8. Automobiles — Motorcycles—Negligence—Proximate Cause— Instructions.
In action by passenger on motorcycle against owner and driver of automobile with which motorcycle collided at an intersection, part of instruction which permitted jury to impute negligence, if any, of motorcyclist to plaintiff, and fact that it was not clearly explained to jury that plaintiff ■ might recover if plaintiff herself were not negligent even though both the motorcyclist and motorist were negligent held, prejudicial error.
9. Same — Motorcycle Passenger — Intersections—Negligence.
In an action for'personal injuries to passenger on a motorcycle which collided with a ear at an intersection, a jury should be instructed that it should first determine whether defendant was guilty of negligence proximatelv causing the accident and if it so found, then the negligence of the motorcyclist had no bearing in the ease.
10. Trial — Contradictory Instructions.
Where instructions give to the jury contradictory and conflicting rules for their guidance, which are unexplained, and following either of which would or might lead to different results, then the instructions are inherently defective and erroneous even though one of the instructions correctly states the law as applicable to the facts of the case.
Appeal from Wayne; Callender (Sherman D.), J.
Submitted April 8, 1948.
(Docket No. 37, Calendar No. 43,953.)
Decided May 18, 1948.
Case by Lorraine A- White, a minor, by Ann M. White, her next friend, against Ernest E. Huff-master, and another for personal injuries sustained when motorcycle on which she was riding was hit by defendants’ automobile. Verdict and judgment for defendants. Plaintiff appeals.
Reversed and remanded for new trial.
Stanley S. Krause, for plaintiff.
Carl F. Davidson, for defendants. | 1919953 | Bushnell, C. J., and Sharpe, Boyles, Reid, North, Dethmers, and Butzel, JJ., concurred. | Michigan | 235 | 2021-08-11T02:34:04.070680+00:00 | WHITE v. HUFFMASTER | White v. Huffmaster | WHITE v. HUFFMASTER. | CAP | Michigan Reports | bafkreieulualjjua5r4bpvgnjhicthpj26zb2zcqzzvbrjdvoj3ifvmgta | Caer, J.
Plaintiff sustained personal injuries in a traffic accident occurring in the city of Detroit on the 18th of May, 1946, between 10 -.30 and 11 o'clock in the evening. At the time of the accident plaintiff, a young woman 18 years of age, was riding as a guest passenger on the rear seat of a motorcycle operated in an easterly direction on Joy road. At or near the intersection of said highway with Spinoza drive the driver of the motorcycle undertook to make a left turn. He was at the time proceeding near the center line of Joy road, a four-lane highway approximately 40 feet in width. While in the north lane the motorcycle was struck by a car which was proceeding westerly :on Joy road, the injury to plaintiff resulting from the impact. Such car was operated by the defendant Ernest E. Huffmaster with the knowledge and consent of the owner, the other defendant in the case.
On the trial in the circuit court it was the claim of the plaintiff that the driver of the automobile was guilty of negligence in failing to keep a reasonable and proper outlook for other traffic on the highway and in driving at a rate of speed that was, under the circumstances, unreasonable, and which did not permit him to stop within the assured clear distance ahead. It was her position that such negligence constituted a proximate cause of the accident. She further denied any contributory negligence on her part. On behalf of defendants it was insisted that no negligence on the part of the driver of the automobile was established by the evidence and that the sole proximate cause of the accident was the negligent operation of the motorcycle by its driver. At the conclusion of the proofs, counsel for plaintiff moved that the court direct a verdict in her favor, leaving to the jury merely the question of damages. Such motion was denied and the case submitted to the jury, by which a verdict in favor of defendant was returned. A motion for a new trial was also denied. Plaintiff has appealed, claiming that said motions should have been granted and that other prejudicial errors occurred in the course of the trial.
The testimony of the witnesses was not in accord as to how and where the collision occurred. The driver of the motorcycle testified in substance that on beginning his turn to the left he crossed the center line of Joy road somewhat to the west of the center of the intersection, that he saw the defendants' car approaching, and that he accelerated the speed of the motorcycle in an attempt to avoid a collision. He placed the point of impact at the north side of Joy road, approximately in the center of Spinoza drive. He further testified that the speed of defendants' car was somewhat accelerated as it approached and entered the intersection. The driver of the automobile claimed that he approached the intersection at a reasonable rate of speed, that he saw the motorcycle approaching, that when the automobile was approximately half way across thp intersection of Joy road and Spinoza drive the motorcycle suddenly turned in front of it and that he applied his brakes but could not prevent the collision. He placed the point of impact approximately 10 feet west of the west curb of Spinoza drive and about 4 feet from the north edge of the pavement on Joy road. A police officer, called as a witness in plaintiff's behalf, testified to marks on the pavement on Joy road near the west curb line of Spinoza drive. In view of the conflicting testimony of the witnesses, it was for the jury to determine how and where the collision occurred and the proximate cause or causes thereof. Under the testimony plaintiff was not entitled to a directed verdict. In passing on the motion it was the duty of the trial court to construe the testimony in the light most favorable to the defendants. The rule is well settled that a verdict may not properly be directed in favor of either party when an issue of fact is presented for the jury's determination. Michigan Pipe Co. v. Michigan Fire & Marine Ins. Co., 92 Mich. 482 (20 L. R. A. 277); Davis v. Belmont Creamery Co., 281 Mich 165; Selman v. City of Detroit, 283 Mich. 413; Anderson v. Kearly, 312 Mich. 566.
After the jurors had deliberated for some time, they returned to the courtroom. In answer to the court's question as to the verdict that had been reached, the foreman stated:
"We feel that both were guilty of negligence, but the motorcycle driver was the direct cause.of the accident and. the defendant should not be held liable."
The court declined to receive the verdict in the form stated, and after some colloquy the foreman indicated that the verdict was one of "no cause for action." Thereupon, at the suggestion of the court, the jury was polled. In answer to the question propounded by the clerk, one of the jurors indicated that the verdict stated by the foreman was not her verdict, whereupon the court proceeded no further with the poll and directed the jurors to return to their jury room for further deliberations. Counsel for the plaintiff at the time moved for a mistrial, which motion was not granted. Before retiring, one of the jurors addressed the following.question to the court:
"May I ask one more question? Did you say that we could find the defendant guilty of negligence and also find the driver of the plaintiff- — the driver of the motorcycle guilty of negligence also?"
To this question the court replied:
"The driver of the motorcycle is not a party."
In behalf of plaintiff it is argued that the court should have accepted the statement of the foreman, above quoted, as a verdict in plaintiff's favor, inasmuch as it indicated that the jurors thought the driver of the automobile was guilty of negligence. It is also insisted that the court erred in failing to declare a mistrial, and in not making a more responsive answer to the question of the juror as to possible finding's under the charge of the court. Clearly, however, the mere statement that the jurors had concluded that both drivers were guilty of negligence was not a proper verdict. Such statement wholly ignored the matter of the proximate cause or causes of the accident. The trial court correctly advised the jury as to the form in which the verdict should be presented. Neither was there any abuse of discretion in returning the jurors to their room for further deliberations. The situation that developed when the jurors were polled was not of such character as to require the court to declare a mistrial. There was in consequence no error in the refusal to grant such motion.
The question asked by the juror as to 'possible findings that might be made clearly indicated, in connection with other occurrences, that the jurors, or some of them, were confused as to the issues in the case. It is a fair inference that the juror asking the question did not understand from the charge of the court precisely what the issues were. Under the circumstances disclosed by the record, including the charge itself, we think the trial court should have given to the jurors such explanation as would have reasonably clarified the situation. Failure to do so was error. It appears from the charge that this was the first negligence case that these jurors had considered; and the instructions of the court, as hereinafter pointed out, contained contradictory and somewhat ambiguous statements.
The principal assignments of error have reference to the charge of the court. It is claimed specifically that the court erred in instructing the jury as follows :
"Now, members of the jury, if you answer that question in the affirmative and you find that he (the driver of the automobile) was guilty of negligence— such negligence as I have pointed out — failure to exercise the degree of care in all of these respects required by these statutes and the law to protect the interests of persons likely to be affected by the lack of exercise of those faculties, then you may find a verdict for the plaintiff and against the defendant. But before you do that, you must consider and determine whether or not the driver of the motorcycle was negligent, and whether such negligence was a proximate cause of the accident and injury. As I have already indicated to you, the driving, on (the) approaching an intersection, and driving at a different angle or different side of the centerline as provided in this statute, would be, itself, negligence as a matter of law. That is a violation of the State statute, definite and specific. Considering all those circumstances, it is for you to answer that question, whether or not the driver of the motorcycle was guilty of contributory negligence, or whether he was free from negligence.
"Under the law, it is required that the plaintiff establish by a fair preponderance of the evidence, both that the defendant was negligent, and that the plaintiff was free from negligence. But in this case the driver of the motorcycle was not — is not the plaintiff. It is a passenger. And if you answer that question, that the driver of the motorcycle was negligent, you will also consider and answer the question as to whether his negligence was a proximate — contributing cause to the injury that followed."
It is argued that the language quoted might have been interpreted by the jury as meaning that plaintiff could not recover if the negligence of the driver of the motorcycle was a proximate cause of the accident. Attention is further called to the fact that throughout the charge references were made to the conduct of plaintiff's driver in such form as to suggest that his negligence was a decisive factor in the case. It should be said in fairness to the trial court that in other portions of the charge the jury wrns told that the negligence of plaintiff's driver would not preclude recovery on her part unless such negligence was the' sole proximate cause of the accident. It was not, however, clearly explained to the jury that plaintiff was entitled to recover if she was not her self guilty of negligence contributing to tbe accident, and if tbe negligence of each driver constituted a proximate cause. It has been repeatedly recognized that there may be more than one proximate cause of an accident of this character. Bordner v. McKernan, 294 Mich. 411; Banzhof v. Roche, 228 Mich. 36; Reed v. Ogden & Moffett, 252 Mich. 362; Camp v. Wilson, 258 Mich. 38; Wiles v. Railroad Co., 311 Mich. 540. We think the language quoted is subject to the objection urged, and that it, in connection with the balance of the charge, may have confused the jury. As suggested above, it seems apparent from the record that such confusion existed.
The trial court correctly told the jury that the negligence of plaintiff's driver could not be imputed to her. Bricker v. Green, 313 Mich. 218 (163 A. L. R. 697); Sedorchuk v. Weeder, 311 Mich. 6. However, in the course of the charge, he made the following-statement which plaintiff's counsel insist was error:
"As a rule, the negligence of the driver of the motorcycle would not be imputable to the particular passenger riding on that motorcycle, but that is not necessarily a determination that that negligence is not imputable. In each case, it is for you to determine."
It is quite possible that the jury understood from this statement that it rested with them to say whether the negligence of plaintiff's driver, if he was negligent, might be imputed to her if the jury thought it proper to do so. This was clearly error. The character of the instructions to be given in a case of this nature was considered in Sedorchuk v. Weeder, supra, where it was said:
"The jury should be instructed that it should first determine whether defendant was guilty of negligence and whether such negligence was a proximate cause of the accident. If the jury should so find, then the negligence of plaintiff's driver has no hearing in the case."
It cannot be said that this erroneous instruction was cured by other statements in the charge. It was not withdrawn, nor did the court indicate that he wished the jury to understand that it was in any way corrected or modified. In Pettersch v. Grand Rapids Gas Light Co., 245 Mich. 277, this Court quoted with approval the general rule on the subject of contradictory instructions as stated in 14 R. C. L. pp. 777, 778:
"Where instructions give to the jury contradictory and conflicting rules for their guidance, which are unexplained, and following either of which would or might lead to different results, then the instructions are inherently defective and erroneous. And that is true though one of the instructions correctly states the law as applicable to the facts of the case. The reason for this is that where the instructions on a material point are contradictory, it is impossible for the jury to decide which should prevail, and it is equally impossible, after the verdict, to know that the jury was not influenced by that instruction which was erroneous, as the one or the other must necessarily be, where the two are repugnant. A further reason is that conflicting and contradictory instructions in effect leave the jury without instrucr tions to guide them with reference to the law arising upon the evidence in the cause."
See, also, Herzberg v. Knight, 289 Mich. 29; Socony Vacuum Oil Co. v. Marvin, 313 Mich. 528. It cannot be said in the instant case that the jury did not follow the erroneous instructions. It must be held, in consequence, that the giving of such instructions constituted prejudicial error.
In view of the conclusions above indicated it is not necessary to consider specifically other portions of the charge on which plaintiff has assigned error. Consideration has been given to other matters raised in the briefs of counsel, but comment thereon is not required. They are of such character that in all probability they will not arise on a retrial.
Because of the errors above pointed out, the judgment is reversed and the case remanded for a new trial, with costs to appellant.
Bushnell, C. J., and Sharpe, Boyles, Reid, North, Dethmers, and Butzel, JJ., concurred.
See 1 Comp. Laws 1929, § 4697, as amended by Act No. 318, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 4697, Stat. Ann. 1947 Cum. Supp. § 9.1565).—Reporter. | 321 | 3224 |
7662 | bafkreibzryo5il4kqbdjt2hxtx7kenj5wlb3zegw62scm3iu3iy6dl7uy4 | 18 Mich. App. 435 | Michigan Court of Appeals | 1969-07-30 | Docket No. 4,857 | 435 | BOARD OF CONTROL OF EASTERN MICHIGAN UNIVERSITY v. LABOR MEDIATION BOARD
1. Constitutional Law — Colleges and Universities — -Legislative Authority — Constitutional Corporation.
A constitutional corporation such as the board of control of a state university may lawfully be affected in exercise by the legislature of its police power for the welfare of the people of the state (Const 1963, art 8, § 6).
2. Constitutional Law — Labor Relations — Public Employer — • Public Employees.
The statute prohibiting strikes by publie employees and regulating the rights of public employers and employees is within the constitutional authority of the legislature and promotes the general welfare of the people of the state by attempting to resolve labor disputes of public employees (CL 1948, § 423-.201 et seq., as amended).
3. Colleges and Universities — Labor Relations — Public Employer —Public Employee.
Eastern Michigan University held to be a publie employer and its employees to be publie employees within the meaning of the statute regulating the rights of public employees (CL 1948, § 423.201 et seq., as amended).
References for Points in Headnotes
[1, 3] 15 Am Jur 2d, Colleges and Universities § 7.
31 Am Jur 2d, Labor § 395.
Appeal from Washtenaw, William F. Ager, Jr., J.
Submitted Division 2 April 17, 1969, at Lansing.
(Docket No. 4,857.)
Decided July 30, 1969.
Leave to appeal granted March 25, 1970.
See 383 Mich 774.
Complaint by the Board of Control of Eastern Michigan University against the Labor Mediation Board for a declaratory judgment stating that plaintiff is not a public employer within the meaning of PA 1947, No 336 as amended. Judgment for defendant. Plaintiff appeals.
Affirmed.
Dykema, Wheat, Spencer, Goodnow and Trigg {James D. Tracy and Ronald Santo of counsel), for plaintiff.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Eugene Krasicky, Francis J. Carrier, and Gerald F. Young, Assistant Attorneys General, for defendant.
Before: McGregor, P. J., and R. B. Burns and Danhoe, JJ. | 2081147 | Before: McGregor, P. J., and R. B. Burns and Danhoe, JJ. | Michigan | 439 | 2021-08-10T18:10:53.114675+00:00 | BOARD OF CONTROL OF EASTERN MICHIGAN UNIVERSITY v. LABOR MEDIATION BOARD | Board of Control of Eastern Michigan University v. Labor Mediation Board | BOARD OF CONTROL OF EASTERN MICHIGAN UNIVERSITY v. LABOR MEDIATION BOARD | CAP | Michigan appeals reports; cases decided in the Michigan Court of Appeals. | bafkreifpwo6jqpcipnwjj2kr2jmvaoikgijkegrfucov3jy35etsdsphku | R. B. Burns, J.
Eastern Michigan University is an institution of higher education established by law having authority to grant baccalaureate degrees. Plaintiff is the constitutionally designated body granted the power generally to supervise and control the university. Defendant is an unincorporated state administrative agency created by PA 1939, No 176, as amended, MOLA § 423.3 (Stat Ann 1968 Rev § 17.454[3]). The university employs academic and nonacademic personnel. The American Federation of State, County and Municipal Employees (Council 7 and Local 1666) filed a petition with defendant for certification as the exclusive bargaining representative for the non-teaching employees at the physical plant department of the university, excluding supervisory, executive, administrative, stenographic and clerical employees. Defendant held a public hearing on this petition and plaintiff objected to defendant assuming jurisdiction of the matter on the basis that plaintiff was a constitutional body corporate, had exclusive control of the university, and was not subject to PA 1947, No 336. MCLA § 423.201 et seq. (Stat Ann 1968 Rev § 17.455 [1] et seq.). The board ruled that plaintiff was a public employer under the act and fell within its jurisdiction.
Following this decision by the board, plaintiff filed a complaint seeking a declaratory judgment to the effect that it is not a public employer within the meaning of PA 1947, No 336, and that to apply it to plaintiff is a violation of Const 1963, art 8, § 6. The trial court held that PA 1947, No 336, as amended by PA 1965, Nos 379 and 397, could be applied to plaintiff and that the employees of the board of control of Eastern Michigan University are public employees. • Plaintiff appeals.
Plaintiff argues first that the application of PA 1947, No 336 to it violates the rights given to the board as a constitutional body by Const 1963, art 8, § 6. Second, they allege that the employees of Eastern Michigan University cannot be considered public employees under the act since the effect is again contrary to their right under the constitution.
Plaintiff's argument on the first point is based upon the 1963 Michigan constitution's creation of a separate board of control to deal with all matters pertaining to Eastern Michigan University. Const 1963, art 8, § 6 states:
"Other institutions of higher education established by law having authority to grant baccalaureate degrees shall each be governed by a board of control which shall be a body corporate. The board shall have general supervision of the institution and the control and direction of all expenditures from the institution's funds."
The plaintiff claims this section prohibits the legislature from passing any act which in any way interferes with plaintiff's general supervision of the university. Cases have been cited by plaintiff wherein the Supreme Court has held that acts of the legislature interfered with constitutional bodies' general supervision of institutions and, therefore, were unconstitutional. Those cases have involved statutes enacted for specific purposes affecting the general supervision of the institution.
In People, ex rel Attorney General v. Regents of the University (1874), 30 Mich 473, the Court denied a writ of mandamus to compel the university to appoint, install and maintain two professors of homeopathy in the department of medicine. In Sterling v. Regents of University of Michigan (1896), 110 Mich 369, the Court held that the legislature could not direct the board of regents to establish a homeopathic medical college as a branch of the university at Detroit.
Const 1963, art 4, § 48 provides:
"The legislature may enact laws providing .for the resolution of disputes concerning public employees, except those in the state classified civil service."
The legislature has acted under this authority, prohibited strikes and provided that grievances be submitted to the defendant board. Peters v. Michigan State College (1948), 320 Mich 243, held that Michigan State College, a constitutional corporation, was subject to the provisions of the Michigan Workmen's Compensation Act as passed by the legislature; that defendant was an "incorporated public board." In Branum v. Board of Regents of the University of Michigan (1966), 5 Mich App 134, the board of regents argued that the legislature could not waive the governmental immunity of the University of Michigan as it was a constitutional corporation and not subject to the control of the legislature. The Court rejected the defendant's argument, stating on pp 138, 139:
"It is the opinion of this Court that the legislature can validly exercise its police power for the welfare of the people of this State, and a constitutional corporation such as the board of regents of the University of Michigan can lawfully be affected thereby. The University of Michigan is an independent branch of the government of the State of Michigan, but it is not an island. Within the confines of the operation and the allocation of funds of the University, it is supreme. Without these confines, however, there is no reason to allow the regents to use their independence to thwart the clearly established public policy of the people of Michigan."
The plaintiff is a public employer and its employees are public employees. The act as passed by the legislature was within the authority granted by the constitution and it promotes the general welfare of the people of the State of Michigan by attempting to resolve labor disputes of public employees.
Affirmed. No costs, a public question being involved.
All concurred. | 18 | 1218 |
6915 | bafkreidaame3j5p5lbtbilxts6esxtp5pifyoc5zhx5a4fflapjbuoptwq | 376 Mich. 237 | Michigan Supreme Court | 1965-07-13 | Calendar No. 59, Docket No. 50,687 | 237 | BENDER v. ZOBA.
1. Judgment — Correction of Decree.
A court of chancery has the power to direct the alteration or correction of a decree (CLS 1961, § 600.2321; GCR 1963, 528.1, 865.1[7]).
2. Same — Correction of Mistake in Decree — Quieting Title — Description of Premises.
Mistake in legal description of land in decree entered in suit to quiet title, rather than a misunderstanding as to the land to be included, is ordered to be corrected by entry of 1 judgment accurately and adequately describing the property in question, the Supreme Court treating both first and second suits to quiet title as 1 proceeding with the seeond suit as no more than a seeond and delayed motion to correct mistake in decree entered in first suit (CLS 1961, § 600.2321; GCR 1963, 528.1, 865.1[7]).
3. Appeal and Error — Questions Reviewable — Adverse Possession.
Claim of adverse possession presented by defendants in seeond suit to quiet title between the same parties relating to the same premises held, saved for review in event defendants decide to appeal from decree as corrected.
4. Costs — Neither Party Prevailing in Pull.
No costs are allowed on appeal in seeond suit to quiet title wherein neither party has prevailed in full.
References for Points in Headnotes
[1, 2] 30A Am Jur, Judgments §§ 591, 592, 596.
5 Am Jur 2d, Appeal and Error § 545.
20 Am Jur 2d, Costs § 16.
Appeal froDi Lake; Stephens (Rupert B.), J.
Submitted March 2, 1965.
(Calendar No. 59, Docket No. 50,687.)
Decided July 13, 1965.
Bill by Joseph Bender against Anthony J. Zoba and Velda Brown Keith, as well as their unknown heirs, devisees, legatees, wives, and assigns, to quiet title to real estate improperly described in a prior circuit court decree. Judgment for plaintiff. Defendants appeal.
Affirmed.
Eugene Christman, for plaintiff.
Nelson M. Willis, for defendants. | 1896467 | T. M. Kavanagh, C. J., and Dethmers, Kelly, Souris, O’Hara, and Adams, JJ., concurred with Smith, J. | Michigan | 241 | 2021-08-10T17:55:51.478092+00:00 | BENDER v. ZOBA | Bender v. Zoba | BENDER v. ZOBA. | CAP | Michigan Reports | bafkreihtubnjrnxodd2axgidcq3mpm5k2x5roqp3q46pjajv7wd5xvz7vi | Smith, J.
This is the second suit between the parties about the same property. - In the first suit, through misdescription, the decree did not contain all of the property awarded. That this was a mistake of plaintiff's counsel is acknowledged by defendants and confirmed by the trial judge. This, the second suit, was brought to correct the mistake, and defendants raised the defense of res- judicata. The chronicle of unfortunate events appears in the trial court's opinion in the instant case:
"This matter, was previously before the court and after the trial an opinion was rendered therein, which is presently on file. During the course of the former proceedings, the court inspected the premises and was of the opinion that the proofs, as tvell as the tangible evidence, clearly preponderated in the plaintiff's favor.. Due to an error in the bill o,f. complaint 'which was included in the decree, .the plaintiff was not awarded all of the land covered by the proofs and testimony. The error involved a'faulty legal'description of the premises rather than a misunderstanding as to the iand to be included.;
"Thereafter, plaintiff filed a motion to amend the' decree to which objection was made.by the defendants. Arguments were heard on the motion and the parties were to file briefs. A brief was filed on behalf of the defendants, although one was not filed for the plaintiff. After some considerable delay, an order was entered dismissing the motion.
"Thereafter, plaintiff again instituted a suit to quiet title, correctly describing the premises to which defendants filed a motion to dismiss. This motion was overruled for reasons set forth in an opinion also on file and the parties proceeded to trial upon the merits.
"In the instant case, plaintiff is seeking relief which the court had decided they were entitled to and had awarded him in its original opinion. The error consists in this court's denial of plaintiff's petition to amend the decree in accordance with that opinion." (Emphasis supplied.)
Under circumstances in this case, there is no question of res judicata but of simple procedural justice, of how to correct the mistake made in the decree in the first suit. Neither is this Court nor the trial court lacking in authority. By the common law of Michigan, by statute and by court rule, the authority is ample.
By earliest authority, a court of chancery has had the power to direct the alteration or correction of a decree. Bates v. Garrison, Harr Ch p 221. See, also, Cole v. Auditor General, 132 Mich 262. As to statutory authority, see Stat Ann 1962 Rev § 27 A.2321 (CLS 1961, § 600.2321), and cases annotated under notes 17 et seq. As to authority under court rules, see GCR 1963, 528.1. The trial court was not lacking in authority to correct the mistake in the court's decree.
The question before us now is what to do in this, the second suit, about a mistake occurring in the decree in the first suit, technically not before us. The answer, we think, is found in GCR 1963, 865-.1(7):
"The Supreme Court may, at any time, in addition to its general powers, in its discretion and on such terms as it deems just:
"(7) Grive any judgment and make any order which ought to have been given or made, and make such other and further orders and grant such relief, whether mentioned in the notice of appeal or not, as the case may require."
Here, the mistake is professed and conceded. Both parties had knowledge of the mistake, and the party against whom the mistake was made tried to have it corrected. The trial judge has acknowledged his error in refusing to correct the decree when first moved by plaintiff. There appearing to be no reason why the mistake should not be corrected, this Court treats both first and second suits as one proceeding. The second suit is treated as no more than a second and delayed motion to correct the mistake in the decree entered in the first suit. It is hereby ordered that the decree and the judgment appearing-in said suits in the files of the Lake county circuit be corrected by the entry of one judgment accurately and adequately describing the property in question.
Obviously, the record and briefs before us do not permit resolution of the question alluded to by defendants, as to whether the trial court was factually and legally correct in deciding for plaintiff on the adverse possession claim. It is clear that defendants have contested plaintiff's position throughout the proceedings and, therefore, have not waived their essential defense against the claim of adverse possession. Such defense shall be considered as having been saved in the event defendants seek review in accordance with the court rules. The record in both suits shall be considered as one, in the event of appeal. Time shall run from the date of entry of the amended judgment.
Remanded for further proceedings in accordance with this opinion. No costs; neither party having prevailed.
T. M. Kavanagh, C. J., and Dethmers, Kelly, Souris, O'Hara, and Adams, JJ., concurred with Smith, J.
Black, J., concurred in result. | 376 | 1170 |
37155 | bafkreighltwnktb7ewpdvxfxf5vorx5l3wmllzjwwvobo2anaeexc76wsu | 435 Mich. 307 | Michigan Supreme Court | 1990-07-16 | Docket No. 84395 | 307 | GREGG v STATE HIGHWAY DEPARTMENT
Docket No. 84395.
Argued November 8, 1989
(Calendar No. 10).
Decided July 16, 1990.
Robert B. Gregg and Nancy E. Gregg brought an action for damages in the Court of Claims against the State Highway Department as a result of injuries received by Robert Gregg when his bicycle struck a pothole located within two white lines demarking a bicycle path between the traveled portion of a highway and its paved shoulder. The court, Peter D. Houk, J., granted the defendant’s motion for summary disposition on the basis of governmental immunity, finding that the state’s duty to maintain highways did not extend to bicycle paths. The Court of Appeals, Weaver, P.J., and Gillis and M. J. Talbot, JJ., affirmed in an unpublished memorandum opinion in light of Roy v Dep’t of Transportation, 428 Mich 330 (1987) (Docket No. 104881). The plaintiffs appeal.
In an opinion by Justice Brickley, joined by Justices Levin, Cavanagh, and Archer, the Supreme Court held:
Governmental immunity is not a bar to the plaintiff’s cause of action. The plaintiff is a member of the class of travelers included in § 2 of the highway exception to the governmental immunity act, and the area of the road designated for bicycle travel comprised part of the improved portion of the highway designed for vehicular travel as defined in the act.
The highway exception to the governmental immunity act applies to any person who sustains bodily injury or damage to property because of the failure of any governmental agency to keep highways under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel. The words "designed for vehicular travel” in the act describe and define the improved portion of the highway to which the duty of a governmental agency applies. While §2 of the governmental immunity act does not apply to a bicycle path located outside the improved portion of the highway designed for vehicular travel, the alleged defect in this case occurred upon a bicycle path that unquestionably comprised part of the improved portion of the highway designed for vehicular travel and not on an installation separated and detached from the improved portion.
Justice Boyle concurred in the result only.
Reversed and remanded.
Justice Griffin, dissenting, stated that under the plain meaning of § 2 of the governmental immunity act and the holding in Roy v Dep’t of Transportation, 428 Mich 330 (1987), a shoulder of a highway is not within the exception. It is not designed for vehicular travel, but rather for the temporary accommodation of disabled or stopped vehicles. The language chosen for § 2 makes clear that the duty and liability imposed extends only to that portion of a highway designed for vehicular travel.
Chief Justice Riley, dissenting, stated that while a plain reading of the definition of shoulder in the Motor Vehicle Code precludes the extension of the government’s duty to maintain highways pursuant to § 2 of the governmental immunity act to road shoulders, the definition is logically inconsistent and does not comport with the realities of highway driving. The definition of shoulder in the code should be amended or a new definition created under the governmental immunity act to recognize that road shoulders accommodate vehicular travel and thus require the government to maintain them in a manner reasonably safe for their intended use.
Stupak & Bergman, P.C. (by Frank A. Stupak, Jr. and John Bergman), for the plaintiffs.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Brenda E. Turner, Assistant Attorney General, for the defendants. | 1982784 | Levin, Cavanagh, and Archer, JJ., concurred with Brickley, J. | Michigan | 327 | 2021-08-10T16:59:18.536484+00:00 | GREGG v. STATE HIGHWAY DEPARTMENT | Gregg v. State Highway Department | GREGG v STATE HIGHWAY DEPARTMENT | CAP | Michigan Reports | bafkreicd7b2abevmarhgiwoef4g25a6gmvy277lu4q7y2iwxk7yvmwlrf4 | Rrickley, J.
We decide in this case whether the highway exception to governmental immunity ex poses the defendants to liability for injuries suffered by a cyclist because of a defect in a designated bicycle path on the inner portion of the paved shoulder of a state highway. The Court of Appeals relied on our decision in Roy v Dep't of Transportation, 428 Mich 330; 408 NW2d 783 (1987), to affirm summary disposition in the defendant's favor. We hold that governmental immunity does not bar the cause of action set forth in the plaintiffs' complaint and reverse the decision of the Court of Appeals.
i
The plaintiff alleged he suffered injuries from a bicycle accident on September 10, 1985. The plaintiff apparently went for a ride that evening on his fourteen-speed racing bicycle. He traveled on the west shoulder of State Highway M-35 in Ford River Township, Delta County, at approximately twenty-seven miles per hour.
The plaintiff's bicycle struck a pothole, and rider and bicycle overturned. Plaintiff's complaint alleged a litany of injuries resulting from the accident, including head and back injuries, a broken collar bone, and broken ribs.
The plaintiff filed a complaint in the Court of Claims, alleging that the state had ownership, jurisdiction, and responsibility for the maintenance of highway M-35, and charging that the state had failed to inspect, repair, and warn users of defects in the bicycle path. The complaint further alleged that these negligent acts and omissions constituted the proximate cause of his injuries.
The Highway Department moved for summary disposition asserting governmental immunity and citing our decision in Roy v Dep't of Transporta tion in support. It contended that, consistent with Roy, its duty to maintain highways did not extend to bicycle paths. The Court of Claims agreed with defendant's arguments and granted summary disposition. The Court of Appeals affirmed the decision without further analysis, agreeing "that summary disposition was proper in light of our Supreme Court's recent opinion in Roy v Dep't of Transportation . . . ."
The plaintiff submitted a photograph of the accident scene with his brief, indicating a pothole located within two white lines. The lines demark a bicycle path running parallel to and seemingly between the traveled portion of the highway and its paved shoulder. The defendants have not contested the accuracy of this photograph.
Because this case was decided on summary disposition, we agree with the defendant that "the only facts before the Court are those allegations as set forth in the Complaint." The plaintiff alleged in his complaint that he was injured on a "designated bicycle path on the west shoulder of said highway . . . ." Our analysis, therefore, is based on the assumption that the bicycle path at issue comprised part of the inner portion of the shoulder closest to the roadway.
ii
A
The defendant argues that nonmotorists are not protected parties under §2 of the governmental immunity act and that such protection is afforded only to "vehicular travel." The defendant notes that the Motor Vehicle Code defines vehicles as motor vehicles. Hence a bicyclist must be excluded from protection under § 2.
We think a straightforward reading of the statute clearly and adequately refutes the defendant's assertions. The statute extends the immunity exception to "[a]ny person sustaining bodily injury or damage to his property . . . ." (Emphasis supplied.) The plaintiff certainly qualifies as one to whom the duty to maintain safe highways extends and the waiver of immunity applies.
However, the "vehicular travel" language of § 2 seized upon by the defendant clearly does not limit the class of travelers who may recover damages for injuries due to defects on the improved portion. The words "designed for vehicular travel" describe and define the "improved portion of the highway" to which the duty of the governmental agency "to keep any highway under its jurisdiction . . . safe and fit for travel" applies. MCL 691.1402; MSA 3.996(102).
B
Defendant also contends that exception to immunity under §2 does not extend to the instant case. In defendant's view, the path was not de signed for "vehicular travel" because the shoulder of the road exists solely for "emergency accommodation."
In Roy, supra, we held that bicycle paths adjacent to, but not a part of, a highway did not comprise part of the improved portion designed for vehicular traffic and hence did not remove governmental immunity from suit. We concluded in Roy:
[T]he exception to immunity found in § 2 of the governmental immunity act does not apply to bicycle paths. The [highway exception to immunity] does not apply to an "installation outside of the improved portion of the highway designed for vehicular travel." A bicycle path is not designed for vehicular travel, in the common sense of "vehicular" as relating to motor vehicle. [428 Mich 340.]
We further stated:
[T]he statute does not offer general protection to pedestrians or motorists without regard to location. The statute announces a duty to repair and maintain the highway so that the improved portion designed for vehicular travel is reasonably safe and convenient for public travel. The criterion used by the Legislature was not based on the class of travelers, but the road on which they travel. [428 Mich 341.]
The trial court and Court of Appeals erred in granting summary disposition in this case on the basis of Roy. In the instant case, unlike Roy, the plaintiff has alleged the bicycle path and the location of the defect occurred on the shoulder of the highway immediately adjacent to its regularly traveled portion. The defect here did not occur on an installation, as in Roy, separated and "de tached" from the improved portion. The allegedly defective bicycle path in this case unquestionably comprised part of the highway. " 'Shoulder' means that portion of a highway . . . ." MCL 257.1501(k); MSA 9.3200(l)(k). (Emphasis added.)
Neither the defendants nor the dissent contends that this paved shoulder is not part of the improved portion of the highway. However, they do contend that the highway's shoulder does not comprise that part of the improved portion of the highway "designed for vehicular travel." Framed this way, the crucial issue involves whether the paved shoulder of the road is "designed for vehicular travel."
The dissent cites Goodrich v Kalamazoo, 304 Mich 442; 8 NW2d 130 (1943), a case decided under a predecessor statute in support of the argument that the Legislature in enacting §2 of the current statute did not intend the shoulder of the road to be excepted from the statute's general grant of immunity. Goodrich concerned a fourteen-foot-wide paved road bounded by approximately "three-foot" wide "dirt and gravel" shoulders. The plaintiff struck a tree that was "about 30 inches from the edge of the pavement" and therefore a part of the shoulder of the road. Id. at 444. Since the dirt and gravel shoulder was only approximately three feet in width and apparently had at least one tree growing on it, it is not surprising that the court found the shoulder not to be a part of the " 'traveled' portion of the road." Id. at 446.
We would not disagree that a three-foot-wide dirt and gravel shoulder adorned with an occasional tree is not "designed for vehicular travel" under today's statute or any statute. As in Goodrich, we would probably conclude that such a shoulder was also not part of the "improved por tion" of the highway. Similarly, it does not seem surprising that when the Court of Appeals began analyzing shoulder-accident cases under our current immunity exception statute, it made no reference to Goodrich.
In Johnson v Michigan, 32 Mich App 37; 188 NW2d 33 (1971), lv den 385 Mich 762 (1971), the Court of Appeals observed correctly we think, that the shoulder from which the plaintiff was returning to the traveled portion of the road, like shoulders generally, was "designed for vehicular traffic although not of the same character as vehicular traffic on the paved portion of the highway." Id. at 39. Other Court of Appeals panels, without exception, have followed that precedent. See Van Liere v State Hwy Dep't 59 Mich App 133; 229 NW2d 369 (1975), and McKee v Dep't of Transportation, 132 Mich App 714; 349 NW2d 798 (1984).
The dissent accurately points out that the Legislature has been quick to correct the result of Court of Appeals decisions that have extended the §2 exception to governmental immunity. We find it persuasive that the Legislature has not included in those correcting amendments the result of an uninterrupted line of cases extending from 1971 that conclude that a shoulder is designed for vehicular travel.
The dissent points to §59a of the Michigan Vehicle Code, which describes the shoulder of the road, as "not designed for vehicular travel but maintained for temporary accommodation of disabled or stopped vehicles . . . MCL 257.59a; MSA 9.1859(1). Post, p 321. That the Legislature did not in our view intend this to be a definition of vehicular travel under § 2 of the governmental immunity act is made evident by another section of the Motor Vehicle Code which states: "'Shoulder' means that portion of a highway or street on either side of the roadway which is normally snowplowed for the safety and convenience of vehicular traffic." MCL 257.1501(k); MSA 9.3200(l)(k). (Emphasis supplied.)
Moreover the contention that the Legislature did not intend to include highway shoulders under the § 2 exception has an obvious flaw: it flies in the face of common experience. Any motorist who has ever experienced a highway emergency understands that shoulders are essential to a safe modern highway. To get on or off a shoulder to stop, park, or leave standing a vehicle, motorists must travel on the shoulder.
At the high speeds of modern vehicles, such an endeavor often results in significant travel, "in the ordinary sense," on the shoulder of a highway. Indeed, it seems quite extraordinary, if not fictional, to assume that vehicles do not travel on shoulders or that shoulders are not designed for vehicular travel, albeit of a temporary sort.
More technically, the Motor Vehicle Code is quite precise in its definitions. It defines roadway quite narrowly as "that portion of a highway improved, designed, or ordinarily used for vehicular travel." MCL 257.55; MSA 9.1855. On the other hand, it defines "[h]ighway or street . [as the] entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel." MCL 257.20; MSA 9.1820, and MCL 257.64; MSA 9.1864. (Emphasis supplied.) If the Legislature had intended liability for the failure to maintain safe roadways only, it seems the Legislature would have done just that. It did not.
The conclusion that shoulders do not comprise part of a highway's improved portion, taken to its logical extreme, could lead to illogical results. Such outcomes seem incongruous with a statute that plainly commands highway authorities to safely repair and maintain highways for public travel. Such outcomes surely do not "clearly express[] [the] intent of the Legislature . . . ." Post, p 318.
Finally, not only did Roy concern a bicycle path that was separate and apart from the roadway and the shoulder of the highway, but it concerned a path on which motor vehicles would have no occasion to enter for any reason. Furthermore, our analysis of Roy supports the different result in this case. In concluding our analysis in Roy, we said:
This interpretation fits within each of the interpretative clues identified above. It satisfies the express wording of § 2 which limits the duty created there to less than the full highway. It does not frustrate the policy announced in other statutes of protecting bicyclists by requiring them to use bicycle paths, where provided, in preference to roads, because bicycles on bicycle paths are not exposed to the hazards which arise from mixing bicycle and vehicular means of travel. [Id. at 341. Emphasis supplied.]
The "mixing bicycle and vehicular means of travel" is precisely what has occurred here. The white lines in this case drawn along the border of the road may have been designed to confine bicycle travel, but could not possibly have been designed to prohibit vehicular travel consistent with the shoulder's statutory purpose of accommodating disabled vehicles.
hi
Because the plaintiff is one of the "class of travelers" included in § 2 and because the area of the road designated for bicycle travel comprised part of the improved portion of the highway designed for vehicular travel as defined in that statute, we reverse the judgment of the Court of Appeals and remand the case to the Court of Claims for proceedings consistent with this opinion.
Levin, Cavanagh, and Archer, JJ., concurred with Brickley, J.
Boyle, J., concurred in the result only.
MCL 691.1402; MSA 3.996(102) provides in pertinent part:
Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency. . . . The duty of the state and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel.
MCL 257.79; MSA 9.1879 defines a vehicle as "every device . . . excepting devices exclusively moved by human power . . . ." MCL 257.4; MSA 9.1804 defines a bicycle as a "device propelled by human power . . . ."
Similarly, and contrary to dicta in Roux v Dep't of Transportation, 169 Mich App 582; 426 NW2d 714 (1988), the language and purpose of the highway immunity statute implies that the standard of care imposed on highway authorities applies to persons and not the vehicles in which they travel. It allows recovery to "[a]ny person sustaining bodily injury or damage to his property" and requires maintenance of highways "reasonably safe and convenient for public travel." Therefore, although the exception to immunity limits the duty of the state to "the improved portion of the highway designed for vehicular travel," the standard of care allows a cause of action for persons — both motorists and nonmotorists — entitled to travel on the improved portion.
We distinguished Goodrich in Ballinger v Smith, 328 Mich 23, 27-33; 43 NW2d 49 (1950), a case interpreting a statute requiring parked vehicles to display lamps on a highway. We held in Ballinger that the duty to display lamps on the highway encompassed a vehicle parked on a shoulder "intended for the use of vehicular traffic in an ordinary and reasonable manner." Id. at 32. The Court rejected Goodrich as controlling, noting that the "fact that [a tree thirty inches from the edge of the pavement] was left in [that] position necessarily leads to the conclusion that the place it occupied was not designed or maintained for traffic." Ballinger, supra at 32-33.
We think this question would be closer if the bike path had been on the outer fringes of the shoulder, thereby making vehicular travel thereon unlikely, especially if the shoulder was wide enough to accommodate both an automobile and the bike path. | 435 | 6118 |
11253 | bafkreihfsxbjuc5nwaugjnmyaaandzdi5dexhfkuf3oqiwf35ngth3q46e | 294 Mich. 160 | Michigan Supreme Court | 1940-06-19 | Docket No. 75, Calendar No. 41,076 | 160 | HUPP FARM CORP. v. NEEF.
1. Vendor and Purchaser — Finding cot Facts — Evidence.
In vendor’s suit to foreclose land contract and for deficiency, evidence held, to support finding of facts made by trial court as to time when vendees became in default, when their last payment was made, and when release of lot from mortgage was effected, as well as fact that vendor had fulfilled its agreement as to making street improvements.
As to whether part payment tolls the statute of limitations, see 1 Restatement, Contracts, § 86; binding effect of authorized conduct of a codebtor to toll the statute of limitations, see 1 Restatement, Contracts, § 127.
2. Same — Forfeiture—Default—Notice.
Default on the part of the vendee does not work a forfeiture of a land contract as it is necessary that in addition thereto the vendor give notiee of election to forfeit in order to terminate the contract relation.
3. Same — Forfeiture.
A declaration of forfeiture, to be effective, must be clear and unambiguous, conveying an unquestionable purpose to insist that the forfeiture has accrued.
4. Same — Notice of Forfeiture.
Notice to husband of forfeiture of land contract under which husband and wife were purchasers but also notifying him that delayed payments must be paid on or before a given date held, not an unqualified declaration of forfeiture.
5. Limitation of Actions — Joint Debt — Payment by One Debtor— Authority.
Payment made by one joint debtor affects the running of the statute of limitations only as to him unless such payment was authorized or ratified by the other obligor.
6. Same — Payment by Wife on Land Contract Running to Husband and Wife.
Wife’s payments, made on land contract running to her and her husband, prevented statute of limitations from running against husband where with his knowledge and consent she had made payments within six years from time suit for foreclosure and deficiency was commenced (3 Comp. Laws 1929, § 13976, as amended by Act No. 193, Pub. Acts 1937).
Appeal from Oakland; Doty (Frank L.), J.
Submitted April 18, 1940.
(Docket No. 75, Calendar No. 41,076.)
Decided June 19, 1940.
Bill by Hupp Farm Corporation, a Michigan corporation, against Arthur F. Neef and wife for foreclosure of a land contract and deficiency. Decree for plaintiff. Defendants appeal.
Affirmed.
Race, Haass $ Allen (G. Redman Moon, of counsel), for plaintiff.
Arthur F. Neef, for defendants. | 1797830 | Bushnell, C. J., and Potter, Chandler, North, McAllister, and Butzel, JJ., concurred. Wiest, J., concurred in the result. | Michigan | 166 | 2021-08-11T02:32:27.790644+00:00 | HUPP FARM CORP. v. NEEF | Hupp Farm Corp. v. Neef | HUPP FARM CORP. v. NEEF. | CAP | Michigan Reports | bafkreiag3r2kosyzpdaeuohwpa26jucfixxlqmmw6nonqhhv2z43jmzjfa | Sharpe, J.
Plaintiff, as vendor, filed its bill of complaint August 15, 1938, for specific performance of a land contract or foreclosure and deficiency judgment against defendants. A decree was entered in favor of plaintiff for tbe sum of $4,063.38. Defendants appeal.
The facts are as follows: On July 19,1926, plaintiff corporation, as vendor, entered into a land contract with defendants, as vendees, covering premises in Oakland county, the consideration for the sale being the sum of $3,840, $384 of which sum was paid upon the execution of the contract. Other terms and conditions of the contract were as follows:
"On payment of the further sum of $3,456 to be paid by the purchaser to the vendor on or before June 1,1933, together with interest on any part thereof at any time unpaid at the rate of six per cent, per annum, while the purchaser is not in default, and at the rate of seven per cent, per annum if the purchaser is in default while such default continues, payable monthly in instalments of not less than $38.50 each including interest, payable August 15th next and a like sum or more including interest on the fifteenth day of each and every month thereafter until said purchase money and the interest thereon is fully paid."
The contract further provided that "the vendor herein reserves the right to place a mortgage on said premises, which mortgage at the time it is placed shall not exceed the unpaid balance on this contract. ' ' Thereafter and on or about July 1, 1927, plaintiff corporation mortgaged these premises, together with other lots in this subdivision, for the sum of $110,000 stipulating a release price for each of said lots and for the lot in question a release price of about $1,100.
In June, 1928, a notice of forfeiture was served upon defendant Arthur F. Neef. The first paragraph of the notice reads in part, ' ' Hupp Farm Corporation elects to declare and does hereby declare said contract forfeited" and said notice then demands a surrender of the possession of the premises. But the last paragraph of the notice reads, "Amount due, $423.50, same to be paid on or before July 9, 1928."
Subsequent to the above notice and on or about July 9, 1928, payment was made on the contract in the sum of $231, $191.64 being credited on interest and paying interest to July 15, 1928, and $39.36 credited upon principal, leaving a balance on the contract of $3,155.06. The last payment made upon the contract was on November 12,1932.
August 15,1938, plaintiff corporation filed a bill of complaint praying for the foreclosure of the contract and for deficiency judgment against defendants. Defendants contend that after the notice of forfeiture was served, defendant Arthur F. Neef made no further payments; that payments subsequent to the notice were made by defendant Laura Neef; that a land contract may not be reinstated by payment made by one joint vendee solely in the latter's behalf; that payments by one joint vendee will not toll the statute of limitations as to the other joint vendee; that a blanket mortgage in violation of the express terms of the land contract justified vendee in rescinding the contract; and that failure of the vendor to make improvements should prevent specific performance of the contract.
The trial court found as a fact that the contract became in default on the part of the defendants in September, 1927; that there was no default upon the part of plaintiff in making' improvements upon the street upon which the lot in question is located; that the last payment made upon the contract was Novem ber 12,1932; and that the particular lot was released from the vendor's mortgage March 29, 1938, at a time prior to the institution of the present suit. We are in accord with the finding of facts made by the trial court.
It is urged by defendants that the land contract may not be reinstated by payment of one of the vendees. Decision upon this question depends upon the claim of plaintiff that the land contract was not forfeited by the notice served upon one of the defendants.
In Miner v. Dickey, 140 Mich. 518, this court held that default of the vendee did not by the terms of the contract work a forfeiture and notice of the election of the vendor to forfeit was required in order to terminate the contract relation.
In Maday v. Roth, 160 Mich. 289 (136 Am. St. Rep. 441), the notice to quit the premises read as follows:
"To deliver up possession of the described premises which you now hold of me as my tenants or pay to me the rent now due for said premises, for which you are justly indebted to me and which you have neglected to pay. ' '
' In deciding the'effect of this notice we said:
"Mere default had not worked a forfeiture at the time the notice to quit was served. Nor did that notice in terms constitute a declaration of forfeiture. A declaration of forfeiture must be clear and unambiguous, conveying an unquestionable purpose to insist that the forfeiture has accrued. No such purpose is deducible from the notice given."
See, also, Gyro, Inc., v. Wesbrook Lane Realty Corp., 261 Mich. 118; Detroit Trust Co. v. Lange, 267 Mich. 69.
An examination of the notice of forfeiture mailed to defendant Arthur F. Neef discloses that the first paragraph of the notice declares a forfeiture of the land contract, hut the last paragraph notifies defendant that the delayed payments must be paid on or before July 9, 1928. Such a notice is not an unqualified declaration of forfeiture and does not meet the standard raised by the authorities cited. The question of waiver of notice of forfeiture is not involved.
Defendants also urge that the statute of limitations has run against all or some portion of the obligations to pay contained in the land contract. In deciding this question we have in mind that there was no valid forfeiture of the contract and that the last payment made upon the same was November 12, 1932, and that the present suit was instituted August 15,1938.
It is the claim of plaintiff that the statute of limitations did not begin to run on the obligations in the contract until June 1, 1933, the date when the whole unpaid balance on the contract was due and payable, or if the statute of limitations had commenced to run before that time, the payments made by Mrs. Neef interrupted the running of the statute.
Defendants rely upon Curtiss v. Perry, 126 Mich. 600, to sustain the principle that a joint vendee cannot be bound by the independent dealings of another joint vendee with the vendor. Decision in the above case rested upon the proposition that the payment made by the husband was made "without the knowledge or consent" of the wife, and, therefore, did not toll the statute of limitations as to her. In the case at bar the payments made after July 23, 1927, were made after a conference between Mr. and Mrs. Neef and their attorney and as found by the trial court were made with the knowledge and consent of Mr. Neef. The above-cited case is not determinative of the facts involved in the case at bar.
In Catlin v. Mills, 140 Wash. 1 (247 Pac. 1013, 47 A. L. R. 545), it was said:
' ' The general rule is relied on that, where there are joint debtors on an obligation, a payment, after the statute has run, by one of the joint debtors binds him only and starts the statute anew as to him only. This rule has found its last statement by this court in Farmers & Mechanics Bank v. San Poil Consolidated Co., 126 Wash. 137 (217 Pac. 707), where we said:
" 'So that, generally speaking, the rule in this State is that a payment made by one of two or more joint and several makers of a promissory note will start anew the running of the statute of limitations only as to the person making the payment. But cireumstanees may arise where, although payment was made by one co-maker, the intention was that it should be made for and its effects be binding upon the other makers. So that the rule adopted by this and many other States is that a payment made by one joint debtor shall effect the statute of limitations only as to him, unless such payment was "authorized or ratified" by the other maker.'
"But this rule, as is noted in this quotation, bears the qualification that, if the payment was 'authorized or ratified' by the other joint maker, the statute then begins to run anew as to both makers, where one has made the payment after the statute has run."
In our opinion, the knowledge and consent of Mr. Neef in having his wife make the payments prevents the statute from running and the decree of the lower court is affirmed, with costs to plaintiff.
Bushnell, C. J., and Potter, Chandler, North, McAllister, and Butzel, JJ., concurred. Wiest, J., concurred in the result.
See 3 Comp. Laws 1929, § 13976, as amended by Act No. 193, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 13976, Stat. Ann. 1939 Cum. Supp. § 27.605).—Reporter. | 294 | 1949 |
16387 | bafkreig66qxbjjwjqvoa3zcbddcsbb6upye3hwedpyfgruycxbij6cbf6m | 18 Mich. App. 358 | Michigan Court of Appeals | 1969-07-29 | Docket No. 3,693 | 358 | GORDON v. GREAT LAKES BOWLING CORPORATION
1. Contracts — Performance—Substantial Performance — Definition.
The concept of what constitutes “substantial performance” of a contract is a relative one, the extent of nonperformance being viewed in relation to the full performance promised.
2. Contracts — Performance — Substantial Performance — Lease Agreement.
The doctrine of substantial performance may properly be applied to lease agreements, and therefore the trial court’s instruction to the jury that it could find defendant liable for rent under . . a lease agreement, if it found that plaintiff had substantially performed its obligations under the lease agreement, was not erroneous.
3. Contracts — Performance — Substantial Performance — Jury Question.
The questions of whether and when substantial performance of a contract took place are questions of fact to be determined by the jury.
4. Contracts — Building Construction — Sewer System — Extension.
A general building contract expressly providing for a “complete” sanitary sewer system and for “sanitary sewer connections from building to sanitary sewer” includes all necessary extensions off the land to connect to the sanitary sewer and is not limited to “onsite” construction.
References for Points in Headnotes
[1, 2] 17 Am Jur 2d, Contracts § 375 et seq.
17 Am Jur 2d, Contracts § 378.
13 Am Jur 2d, Building and Construction Contracts § 8 et seq.
[6] 13 Am Jur 2d, Building and Construction Contracts § 124.
Admissibility of oral agreement as to specific time for performance whore written contract is silent. 85 ALR2d 1269.
5. Contracts — Building Construction — Storm Drainage System —Extent op System.
A general building construction contract providing for a “complete storm drainage system” includes all necessary extensions off the land to conduct rainwater away and is not limited to “onsite” piping.
6. Contracts — Written Instrument — Time por Completion — Parol Evidence — Admissibility.
Parol evidence is not admissible to show time of performance of a contract where the written contract is complete and unambiguous but does not mention time of completion, because a reasonable time is presumed.
Appeal from Wayne, Benjamin Burdiclc, J.
Submitted Division 1 February 6, 1969, at Detroit.
(Docket No. 3,693.)
Decided July 29, 1969.
Declaration by Harold H. Gordon, Marion Gordon, Louis P. Begin, and Gita M. Begin against Great Lakes Bowling Corporation, a Michigan corporation, and Cloverlanes Bowl, Inc., a Michigan corporation, for money due under a lease. Verdict and judgment for plaintiffs. Defendants appeal.
Affirmed in part and reversed in part.
Louisell <& Barris (Robert II. Ilarlmess, of counsel), for plaintiffs.
Chris M. Young john, for defendants.
Before: Lesinski, C. J., and T. M. Burns and J. J. Kelley, JJ.
Circuit Judge, sitting on the Court of Appeals by assignment. | 2081352 | Before: Lesinski, C. J., and T. M. Burns and J. J. Kelley, JJ. | Michigan | 367 | 2021-08-10T18:10:53.114675+00:00 | GORDON v. GREAT LAKES BOWLING CORPORATION | Gordon v. Great Lakes Bowling Corp. | GORDON v. GREAT LAKES BOWLING CORPORATION | CAP | Michigan appeals reports; cases decided in the Michigan Court of Appeals. | bafkreiffypa6sesiabb524252glic6sukuqiagstyzradt3g3wxdw34pa4 | Lesinski, C. J.
On August 20, 1959, plaintiffs, landlords, entered into a written 20-year lease with defendant, tenant, Great Lakes Bowling Corporation. The lease provided in relevant part that the landlords would erect on the demised premises a building sufficient to house a 64-lane bowling establishment and a parking lot with proper drainage facilities, both according to "plans and specifications to be approved by tenant". The tenant was obligated by the lease to furnish bowling alley equipment.
The lease contained an agreement by the parties that the landlords would not be required to invest more than $540,000 for construction of the building and parking lot, and that the tenant would pay the cost of construction in excess of $540,000. Construction costs specifically were to include "any other costs attributable to the improvement of the herein described premises".
Pursuant to the lease, plans and specifications for the project were prepared by architects and approved by the tenant. When the general contract for the project was let for $557,900, defendants acknowledged their liability for $17,900, the excess over $540,000.
In addition to the admitted $17,900 liability, plaintiffs claimed their tenants also owed another $56,170.70. To recover that amount, plaintiffs instituted an action in Wayne county circuit court. A jury trial was held in which each party prevailed in part. Defendants now appeal portions of the judgment; plaintiffs do not cross-appeal.
Defendants first contend the trial court erred in failing to direct a verdict for defendants on plaintiffs' claim for rent.
The lease in relevant part provided:
"This lease shall commence on the date upon which the building and parking lot required to be constructed under this lease shall have been fully completed and the tenant shall have in stalled his entire equipment necessary for the operation of a howling alley, but in no event shall such lease commence later than 30 days after the full and final completion of the building and parking lot."
Stipulated rent under the lease was $5,333.33 per month.
Plaintiffs contend that the project was substantially completed for purposes of the lease by December 23,1960. Therefore, plaintiffs seek payment of $12,266 under the lease for rent commencing 30 days after December 23, 1960, and ending April 1, 1961. Defendants voluntarily paid rent for the period beginning April 1, 1961.
Defendants refute plaintiffs' claims, contending that since howling operations could not be commenced until after April 1, 1961, no rent was due under the lease for the prior period.
The jury awarded plaintiffs $6,133 for rent, which was one-half the rent claimed owing by plaintiffs.
As part of defendants' appeal on the rent issue, they assert that the trial court erred in instructing the jury that the doctrine of "substantial performance", which is applied in building and construction contracts, applies to lease arrangements. The instruction provided:
"I might also say while I am on the subject that it is a question of fact for your determination as to whether or not Mr. Brown's refusal to accept the building on December 23, 1960, was arbitrary, and whether or not the plaintiffs had substantially performed or fulfilled their contract on that date.
"Now, let me tell you what constitutes 'substantial performance'. While it is difficult to state what the term 'substantial performance' or 'substantial compliance' as applied to building and construction contracts means, inasmuch as the term is a relative one, and the extent of the nonperformance must he viewed with, relation to the full performance promised, it may be stated generally that there is substantial performance of such a contract when all the essentials necessary to the full accomplishment of the purposes for which the thing contracted has been constructed or performed with such approximation to complete the performance that the owner obtains substantially what is called for by the contract.
"Imperfections in the matters of detail which do not constitute a deviation from the general plan contemplated for the work, do not enter into the substance of a contract and may be compensated iii damages; do not prevent the performance as being regarded as substantial performance."
This Court in P & M Construction Company, Inc. v. Hammond Ventures, Inc. (1966), 3 Mich App 306, 314, 315, approved an almost identical "substantial performance" rule in a suit between a property owner and a contractor. Therefore, the instruction in the instant case was not in error if the "substantial performance" test applies to tenants.
While defendants contend the "substantial performance" test is inapplicable to tenants, they cite no case to support that contention. However, in Weissberger v. Brown-Bellows-Smith, Inc. (Tex Civ App, 1956), 289 SW2d 813, the substantial performance test was expressly applied to a lease arrangement requiring a landlord to construct a building for occupancy by tenants. There the tenant claimed the landlord breached the leasing agreement through noncompliance and nonperformance in that the plaster was wet, certain air conditioning ducts had to be moved, and certain lighting fixtures had to be installed. The court in examining the evidence, concluded that substantial performance was established and that such performance is regarded as full performance of a building contract. Similarly, in Noble v. Tweedy (1919), 90 Cal App 2d 738 (203 P2d 778), the court applied the "substantial performance" test to a lessor's duty to erect a bowling alley for his tenant on lessor's premises in accordance with agreed plans and specifications. See, also, 17 Am Jur 2d, Contracts, § 375.
The instructions in the case at bar indicated that the "substantial performance" rule is a relative one, the extent of nonperformance being viewed in relation to the full performance promised. By this instruction, the jury was cautioned to examine the entire lease between landlord and tenant to determine whether, by the standards of the lease, the landlord had substantially performed. No general "substantial performance" test was applied; rather, performance in relation to the lease was the test expressed by the trial court. We find that the "substantial performance" instruction given by the trial court was properly applied to the lease arrangement in the instant case. There was no error in the trial court's instruction to the jury regarding the issue.
As part of defendants' contention of trial court error concerning the claim for rent, defendants further urge that they should have received a directed verdict because no rent was due under the lease until April 1, 1961.
Neither party denies that on December 23, 1960, items still incomplete included the indoor sprinkler system, asphalt tile floor, painting and vinyl work, installation of the lawn, a screening wall on the property line, parking lot striping and lighting islands, lattice grill work, and walls in back of the snack bar, between the control desk and checkroom, and in the cocktail lounge and playroom. On April 12, 1961, the following items were still incomplete: curbing around light posts in parking lot, sod on lawn, ceiling of concourse, screening wall on property line, painting and general clean-np.
Under the "substantial performance" test, the exact date the lease was to commence was a question of fact to be determined by the jury. The jury, in awarding one-half of the rent plaintiffs alleged owing, presumably determined that "substantial performance" occurred as of January 25, 1961, and therefore that rental payments should have begun as of February 24, 1961. Upon a review of the record, we concur in the jury's determination. The trial court did not err in refusing to direct a verdict for defendants.
Defendants also contend, in two related issues, that the trial judge erred in refusing to direct a verdict for defendants on plaintiffs' claim for the cost of extension of the storm and sanitary sewers beyond the demised land. Plaintiffs claimed that the $557,900 general contract included only "on site" drainage, and that extension of the sewage system beyond the demised premises was an improvement of the premises in excess of the contract price and chargeable to the defendants under the terms of the lease. Defendants asserted that the general contract included in its $557,900 amount the cost of necessary extensions, and that no further payment is due for the extensions.
In the instant case, the lease requires the landlord to construct a building and parking lot according to plans and specifications approved by the tenant. Pursuant to the lease, defendant approved the general contract and its plans and specifications, as entered into between the landlord and the general contractor, for $557,900.
Regarding the first of these two related issues, the sanitary sewer system, the general contract expressly provided for a "complete" sanitary sewer system, and thus rebuts plaintiffs' contention that the contract included only "on site" construction. Analysis of the site plan clearly illustrates the bowling alley sanitary sewer system connected by a six-inch pipe with the public "sanitary sewer" located in the median strip of Schoolcraft road. The contract adopted the site plan by requiring that pipe be laid in locations shown on plans. Furthermore, the contract expressly provided for "sanitary sewer connections from building to sanitary sewer as indicated". The only feasible conclusion from the contract provisions, plans and specifications is that off-the-premises work entailing construction of a complete and operational sanitary sewage system under the contract was contemplated by the parties. There was no credible evidence from which a reasonable conclusion could be drawn to support plaintiffs' claim. Therefore, the trial court should have directed a verdict against plaintiffs' claim for payment for the sanitary sewer extension based upon provisions of the lease, the contract, and the contract's plans and specifications.
Regarding the second related issue, the storm sewer extension, the general contract similarly provided for a "complete storm drainage system". The site plan together with addendum 2 of the contract clearly indicates that the storm drainage pipes were to lead from the premises to a point 10 feet north of the leased premises, onto plaintiffs-landlords' adjoining land. Evidence presented by plaintiffs tending to show that only "on site" piping was in- eluded in the general contract contradicts clearly expressed, unambiguous written agreements, and is not credible. Testimony consistent with the contract includes testimony by plaintiffs' architect that storm drainage water was to be conducted through a pipe to a point outside the leased premises, and from there it was to flow into an open ditch on plaintiffs' adjoining land running north from the leased property to an open-ditch public drain. The architect testified that this was a sufficient and workable plan which was approved by the city of Livonia.
To charge the tenant, the lease requires that expenditures be approved by the tenants and that the cost be attributable to improvement of the premises. The plaintiffs have not produced credible evidence to prove that extension of the storm sewer pipe beyond the point contemplated in the general contract was necessary for improvement of the leased premises. The controversial pipe extension was installed solely on nonleased land. Moreover, the plaintiffs have not provided credible evidence of approval of the expenditure by the tenants. The trial court should have directed a verdict for defendants and against plaintiffs' claim for payment of the storm drainage extension costs.
Defendants' final claim on appeal is that it was error for the trial judge to direct a verdict against their claim for damages because of delay in completion of the bowling center. There is no question that the lease and related documents made no mention of a completion date. However, defendants contend that plaintiffs made distinct oral representations that the building would be ready by July 1, 1960.
Parol evidence is not admissible to show time of performance where a written contract is complete and unambiguous but does not mention time, because a reasonable time is presumed. Giffels & Vallet, Inc. v. Edw. C. Levy Company (1953), 337 Mich 177; 30 Am Jur 2d, Evidence, § 1060, p 199. The contract documents in this case were numerous and carefully detailed, and as the trial court observed, the parties were all experienced and had the advice of counsel. It cannot be assumed that they would leave the contract ambiguous if they intended to set a firm completion date. Parol evidence being excluded, no evidence supported defendants' claim. The trial judge properly directed a verdict against it.
Reversed in part and remanded for entry of judgment in conformity with this opinion. No costs, neither party having prevailed in full.
All concurred.
While certain additive alternates were addendums to the contract and entailed additional sewer expense for sewer extensions, when the contract was submitted, these alternates were omitted from the base price. Omission of these alternates did not remove the requirement of the general contract that off-site plumbing be completed.
Addendum 1, while altering the site plan by moving the storm sewer manhole 29 feet westward, does not change the requirement that the sewer extend north of the leased premises. | 18 | 2562 |
8304 | bafkreihqwxd2sjrebv7i2lprdv3xdsvrvw7xkwr7z2w3jozvjniftiaamq | 411 Mich. 691 | Michigan Supreme Court | 1981-11-02 | Docket Nos. 64801, 64802 | 691 | PEOPLE v McLEMORE
Docket Nos. 64801, 64802.
Argued April 7, 1981
(Calendar No. 3).
Decided November 2, 1981.
Harold McLemore was charged, while he was serving a federal sentence for bank robbery, with murder, assault with intent to commit murder, and carrying a concealed weapon. The Wayne County Prosecutor obtained writs of habeas corpus ad prosequendum from the Recorder’s Court of Detroit on several occasions to secure the temporary custody of the defendant from the Federal Correctional Institution in Milan, Michigan, for proceedings against him on the state charges. The Recorder’s Court of Detroit, Samuel C. Gardner and George W. Crockett, III, JJ., granted motions by the defendant to dismiss the charges for failure to commence trial within 120 days of the arrival of the prisoner, as required under the Interstate Agreement on Detainers. The Court of Appeals, R. M. Maher, P.J., and Bronson and A. E. Moore, JJ., affirmed in a per curiam opinion, but remanded the case to the trial court to determine whether the murder and concealed-weapon charges had been brought within 120 days (Docket Nos. 77-4827, 78-41, 78-115). The parties appeal.
In a unanimous per curiam opinion, the Supreme Court held:
A writ of habeas corpus ad prosequendum is not a detainer within the meaning of the Interstate Agreement on Detainers. The decision of that question as a matter of federal law by the Supreme Court of the United States has been followed whether the writ emanated from federal or state court. The writ of habeas corpus ad prosequendum remains available as a means for a state to seek temporary custody of an accused incarcerated in another jurisdiction. The decision by federal authorities to honor a writ in the absence of a detainer as a matter of comity does not bring into operation the provisions of the Interstate Agreement on Detainers. Since the prosecution in this case obtained temporary custody of the defendant as a result of the writ and no detainer had been lodged against the defendant, the 120-day provision for commencement of trial is inapplicable.
The judgment of the Court of Appeals is reversed, and the case is remanded to Recorder’s Court of Detroit for further proceedings.
95 Mich App 536; 291 NW2d 109 (1980) reversed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Chari Grove and Rolf E. Berg) and Hoffa, Chodak & Robiner for defendant. | 1946002 | Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. | Michigan | 695 | 2021-08-11T02:34:22.888631+00:00 | PEOPLE v. McLEMORE | People v. McLemore | PEOPLE v McLEMORE | CAP | Michigan Reports | bafkreics5tt7gcp3jhj37u3nph3kl52hbqbnypdhyxetyp5jw5ygjzfqcm | Per Curiam.
The dispositive issue is whether a writ of habeas corpus ad prosequendum constitutes a detainer within the meaning of the Interstate Agreement on Detainers, MCL 780.601 et seq.; MSA 4.147(1) et seq.
I
The prosecution, by means of writs of habeas corpus ad prosequendum issued by the Recorder's Court for the City of Detroit, secured the temporary custody of defendant from authorities at the federal prison in Milan, Michigan, to proceed against him on charges of murder, assault with intent to murder, and carrying a concealed weapon. All charges were dismissed with prejudice at the trial court level based upon a perceived violation of Article IV(c) of the Interstate Agreement on Detainers:
"In respect of any proceeding made possible by this Article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance."
II
The prosecution appealed, claiming among other things that the Interstate Agreement on Detainers was inapplicable since a writ of habeas corpus ad prosequendum is not a detainer within the meaning of the Interstate Agreement on Detainers. Although the Court of Appeals rejected the prosecution's claim, the panel nonetheless remanded the case to the trial court for further proceedings because it was unable to determine from the record whether the murder charges and a carrying a concealed weapon charge had been brought within 120 days.
Ill
The Interstate Agreement on Detainers is a congressionally sanctioned interstate compact, construction of which presents a federal question. The United States Supreme Court has ruled that the provisions of the agreement apply if a participating jurisdiction which has untried charges against a prisoner lodges a detainer with the jurisdiction where the prisoner is incarcerated and that a writ of habeas corpus ad prosequendum is not a detainer within the meaning of the agreement. United States v Mauro, 436 US 340; 98 S Ct 1834; 56 L Ed 2d 329 (1978). The decision in Mauro has been followed regardless of whether the writ emanated from federal or state court.
We conclude that the writ of habeas corpus ad prosequendum remains available as means for a state to seek temporary custody of an accused incarcerated in another jurisdiction. The decision by federal authorities to honor a writ in the absence of a detainer as a matter of comity does not trigger the provisions of the agreement. Since the prosecution in the instant case obtained temporary custody as a result of the writ and no detainer had been lodged against the defendant, the time provision for trial in Article IV(c) is inapplicable.
We reverse the judgments of the Court of Appeals and Recorder's Court for the City of Detroit, reinstate the charges against the defendant, and remand the case to the Recorder's Court for the City of Detroit for further proceedings consistent with this opinion. We do not address the issues raised on cross-appeal. Upon remand, the defendant may raise the issue involving his constitutional and statutory rights to a speedy trial as well as his claim that the murder charges should be dismissed because the prosecution breached an agreement to grant immunity. The people's motion to strike is denied as moot. We do not retain jurisdiction.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
The common-law writ of habeas corpus ad prosequendum is an order by a court directing authorities to produce a prisoner to face criminal charges. See State v Fender, — W Va —, —; 268 SE2d 120, 123 (1980).
A detainer is " 'a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction' ", United States v Mauro, 436 US 340, 359; 98 S Ct 1834; 56 L Ed 2d 329 (1978). In United States v Dixon, 592 F2d 329, 332, fn 3 (CA 6, 1979), the Court describes a detainer as
"simply a notice filed with the institution in which a prisoner is serving a sentence, advising that the prisoner is wanted to face pending criminal charges elsewhere, and requesting the custodian to notify the filing jurisdiction prior to releasing the prisoner. Filing a detainer is an informal process that generally can be done by any person who has authority to take a prisoner into custody. Furthermore, a detainer remains lodged against a prisoner without any action being taken on it. Ridgeway v United States, 558 F2d 357 (CA 6, 1977), cert den 436 US 946; 98 S Ct 2850; 56 L Ed 2d 788 (1978). See also United States v Maura, 436 US 340; 98 S Ct 1834; 56 L Ed 2d 329 (1978)."
95 Mich App 536; 291 NW2d 109 (1980). The Court of Appeals reversed dismissal of another charge of carrying a concealed weapon after finding only 97 days of unexcused delay had lapsed at the time of dismissal.
Cuyler v Adams, 449 US 433; 101 S Ct 703; 66 L Ed 2d 641 (1981).
See Foran v Metz, 463 F Supp 1088 (SD NY, 1979); United States ex rel Schlobohm v Medical Center for Federal Prisoners, 453 F Supp 618, 620 (SD Ill, 1978); Bean v United States, 409 A2d 1064, 1066 (DC App, 1979); People v Befeld, 90 Ill App 3d 772; 413 NE2d 550 (1980); State v Boone, 40 Md App 41; 388 A2d 150 (1978); Commonwealth v Florence, — Mass App —, —; 387 NE2d 152, 153 (1979); State v Kelsey, 592 SW2d 509 (Mo App, 1979); Commonwealth v Diggs, 273 Pa Super 121; 416 A2d 1119 (1979); Moore v Whyte, — W Va —; 266 SE2d 137 (1980). See generally Anno: Interstate Agreement on Detainers Act, 98 ALR3d 160, 192-195, 245-247. | 411 | 1394 |
8222 | bafkreiaqwd2qa6kixsubdzil4yergg4cxuvz3wgu2m32cbj23bz36yti7u | 40 Mich. 196 | Michigan Supreme Court | 1879-01-21 | 196 | William H. Merrick v. Peter Mayhue.
Justice’s summons — Reimn—Non-suit—Affidavit for transcript of execution. '
The following,return of service of a justice’s summons is prima facie sufficient to give the justice jurisdiction: “I hereby certify that I have personally served the within summons on the within named defendant, by reading the same and by giving a copy, on the 5th day of August, 1874.”
A justice’s summons was made returnable at one o’clock in the afternoon. It was read to defendant and a copy given him, which, however, specified one o’clock in the forenoon as the time for appearance. Defendant appeared at one in the morning, got the justice out of bed, and in plaintiff’s absence took a non-suit. But before the real time arrived he saw the original summons, which stated it correctly. Held that the non-suit was void.
.Where a justice enters judgment as against Peter Mayo in a suit begun by process against Peter Mayhue, it is competent to amend the error by following the summons, and the defect is not fatal if there is no question of identity and the transcript of execution gives the name correctly.
An unsigned affidavit for a transcript of execution is valid if properly sworn to. 1
Error to Huron.
Submitted Jan. 9.
Decided Jan. 21.
Eeplevin. Defendant appeals. The facts are stated.
Winsor & Snover and II. B. Carpenter for plaintiff in error.
If a justice’s summons is read to a defendant, it is sufficient service (Comp. L., § ’5262; Shaw v. Morehouse, 3 Mich., 74), and the return showing service cannot be impeached and gives jurisdiction, Clark v. Holmes, 1 Doug. (Mich.), 398; Facey v. Fuller, 13 Mich.. 533; N. Y. & E. R. R. Co. v. Purdy, 18 Barb., 574. An affidavit is valid if it begins with the affiant’s name (Haff v. Spicer, 3 Cai., 190), and appears to have been duly sworn to before a proper magistrate, Jackson v. Virgil, 3 Johns., 540; Shelton v. Berry, 19 Tex., 154; Crist v. Parks, id., 234; Redus v. Wofford, 4 Sm. & M., 579; Bates v. Robinson, 8 Ia., 318. The identity of parties to a record may be proved when there is a variance in the names, Reed v. Gage, 33 Mich., 180; Boyce v. Danz, 29 Mich., 148; Goodell v. Hibbard, 32 Mich., 47.
Geo. 8. Engle and John C. Shields for defendant in error.
Mayhue and Mayo are no more idem, sonans than William T. Johnson and Warren T. Johnson (Foster v. Alden, 21 Mich., 507), Edmund Darby and Edward Darby Matthews v. Dickinson, 7 Taunt., 399), McCann for McCarn, and Tarbart for Tabart (Bingham v. Dickie, 5 Taunt., 814), and Couch for Crouch (Whitwell v. Bennett, 3 B. & P., 559), and there can be no judgment on a transcript against any one but the party who suffered judgment in the first instance, Stephens v. Santee, 51 Barb., 532; a statute for transferring a judgment must be strictly complied with, Jewett v. Bennett, 3 Mich., 200; Peck v., Covell, 16 Mich., 11. | 1328423 | The other Justices concurred. | Michigan | 200 | 2021-08-10T17:10:39.020392+00:00 | William H. Merrick v. Peter Mayhue | Merrick v. Mayhue | William H. Merrick v. Peter Mayhue. | CAP | Michigan Reports | bafkreiag46vnedvxby67f2t6we2u7b7omcczzt5zyb3cjkbuhlnsovazeu | Graves, J.
Merrick was under-sheriff and received an execution for collection against Mayhue.
It was issued out of the circuit court on an entry of judgment therein in favor of one Thomas Snell and against defendant in .error, and which entry was founded on a transcript made by Samuel T. Cantelon, a justice of the peace. He seized a pair of colts and some other animals on the execution and Mayhue instituted this action of replevin and retook the property. At the trial the only subjects of controversy were whether the judgment given by the justice in favor of Snell was void for want of jurisdiction, and if not, then whether the. omission of the affiant's signature to the affidavit made to show that Mayhue had no goods and chattels in the county liable to execution, invalidated the transcript.The circuit judge instructed the jury that there was no valid judgment before the justice-and directed a verdict in Mayhue's favor. Merrick brought error.
There is no occasion to inquire to what extent and in what way a levy under a transcript execution may be assailed by objections to the proceedings before the justice. The circumstances of this case are such as to spare discussion on that subject.
The transcript was entitled "Thomas Snell vs. Peter Mayhue," and was in due form. The original summons issued by the justice on the 5th of August, 1874, and returnable " on the 15th of August, A. D. 1874, at one o'clock in the afternoon," was regular. It was returned personally served by the plaintiff in error. His certificate on the back was in these terms: "I hereby certify that I have personally served the within summons on the within named defendant, by reading the same and by giving a copy, on. the 5th day of August, 1874." This contained the evidence of service to entitle the justice to act, and no one questions its yorvma fade sufficiency. Mayhue employed counsel to defend and delivered to his counsel a paper he represented to him as the same Merrick had given as a copy of the summons.
It is not needful to examine what is claimed to be a showing that this paper so handed to counsel was the same Merrick delivered as a copy of the original summons. Let the fact be conceded.
The paper contained a palpable error. It specified one o'clock in the forenoon of August 15 instead of onei o'clock in the afternoon as the time for appearance. Mayhue's counsel taking this paper with him got the' justice out of bed at midnight, and the form of calling-the case was soberly gone through with at one o'clock in-the morning, and an entry of non-suit made.
Of course this proceeding was void. The true time for appearance had not arrived, and this nocturnal manoeuvre was without effect to anticipate it. The original summons containing the correct hour must have been-read to Mayhue, and it would be going far to say that the error in the copy misled him and caused him to. suppose the time for appearance had been fixed at one •in the morning.
However this may be, the record establishes that if he was thus misled at the moment and caused to believe that the time specified in the copy was not a mistake, he was fully and regularly apprised and in due season to protect himself, that the time in the copy was incorrect, and that the true time was one o'clock in the afternoon. His counsel testifies that subsequent to the proceeding taken at one o'clock in the morning and in the same forenoon he saw the original summons and read it and saw it was returnable at one o'clock that afternoon. There was no want of opportunity, therefore, to appear in the case and make objections.
He knew the time given in the copy was a mistake on the part of the sheriff, and he was aware of the true time fixed for appearance. If entitled to rely on the accuracy of the copy of the summons in the first place, he could not continue his reliance so far as to disregard the suit entirely, and reserve his objections for a collateral proceeding, after having seen the original summons and ascertained the truth in due season to make all objections in the same case. Whatever influence the defect in the service might have had under other circumstances, it became a mere irregularity.
It is claimed that the judgment as originally entered up by the justice was entitled "Thomas Snell vs. Peter Mayo" and not "Peter Mayhue," as in the transcript, and that this is a fatal objection.
The point is without merit. The record leaves no room for any question of identity in fact and the means were supplied to spell the name properly.
The first process was against Peter Mayhue, and if the entry made by the justice was not accurate it was competent to make it so by following the summons, and in making out the transcript he seems to have acted in that way.
The objection to the affidavit made preliminary to the transcript because the affiant failed to sign is overruled by Dickinson v. Simondson, 25 Mich., 113. Besides the cases there cited, see Soule v. Chase, 1 Robertson, 222, and In re Howard, In re Ashcroft, L. R., 9 C. P., 347: 9 Eng., 436. The case in Bobertson has been reversed, but without affecting the point here.
There are no other questions deserving notice. The record shows, that the court erred to the prejudice of plaintiff in error, and the judgment must therefore be reversed with costs and a new trial ordered.
The other Justices concurred. | 40 | 1458 | |
42460 | bafkreia7k6qwi25fwrj3mxxtfgsvu5egm355pyz62glcteowf6ysqhmtpi | 439 Mich. 186 | Michigan Supreme Court | 1992-03-23 | Docket No. 89274 | 186 | WOODS v CITY OF WARREN
Docket No. 89274.
Argued December 4, 1991
(Calendar No. 4).
Decided March 23, 1992.
Dissenting opinion by Levin, J.,
filed March 27,1992.
Charles G. Woods, a Center Line police officer, and Joanne Woods, his wife, brought an action in the Macomb Circuit Court against the City of Warren, seeking damages for injuries sustained by Sgt. Woods following a high speed chase. The court, Robert J. Chrzanowski, J., granted summary disposition for the defendant on the basis of the fireman’s rule, which provides that police officers and fire fighters may not recover for injuries sustained in the line of duty. The Court of Appeals, Doctoroff, P.J., and McDonald and Jansen, JJ., reversed in an opinion per curiam (Docket No. 108526). The defendant appeals.
In an opinion by Justice Brickley, joined by Chief Justice Cavanagh, and Justices Boyle, Riley, Griffin, and Mallett, the Supreme Court held:
The plaintiff suffered an injury from a specific risk directly connected with the performance of his duties as a police officer, justifying application of the fireman’s rule.
1. The purpose of safety professions is to confront danger. The public should not be held liable for damages for injuries occurring in the performance of the very function police officers and fire fighters are intended to fulfill. When this rationale is implicated and no other considerations outweigh it, the fireman’s rule requires dismissal of a safety officer’s suit. In this case, the plaintiff’s crash occurred while he was performing the classic police function of maintaining sight of a stolen vehicle. The fireman’s rule applies, and his suit must be dismissed.
2. It is the kind of duty, not the kind of injury, that provides the starting point for analysis. The analytical focus must be on whether the injury stems directly from an officer’s duties. If it does, the fireman’s rule applies. While the rationale might not apply in every circumstance involving injury of a safety officer, the rule is flexible and should be applied when justified. The scope of the rule includes negligence in causing the incident requiring a safety officer’s presence and those risks inherent in fulfilling the police or fire fighting duties.
References
Am Jur 2d, Negligence §§ 1210, 1504.
See the Index to Annotations under Fire Departments and Firefighters; Police and Law Enforcement Officers.
3. While the City of Warren has an affirmative statutory obligation to maintain its roads, and any person may bring a suit to enforce that obligation, MCL 691.1402; MSA 3.996(102), the statute does not remove the bar imposed by the fireman’s rule. Although the danger from slippery roads is not unique to police officers, the plaintiff’s injury flows directly from his performance of his duties as a police officer and from a specific risk that was increased by his performance of those duties.
Reversed.
Justice Levin, dissenting, stated that the majority has resolved factual issues with legal conclusions on the basis of an incomplete record. The case should be reversed and remanded for trial, and the factual issues submitted to the trier of fact for resolution.
The statutory obligation to maintain a road in reasonable repair was imposed for the benefit of all who use the road, fire fighters and police officers included. Unless the performance of duty, and not a defect of the road, causes a fire fighter’s or police officer’s injury, the officer may maintain an action for failure to keep a road in reasonable repair. The focus of the inquiry is causation. If an accident occurred because a road was defective, whether or not the officer was driving, as a result of a police chase, in a manner different than would a civilian user of the road at the same time and under the same road conditions, the fireman’s rule does not apply, and the city would be subject to liability. In this case, on the basis of the summary disposition record, it was a question of fact, and not of law, whether the plaintiff was driving in a manner different than an ordinary citizen because he was acting as a police officer and, if so, whether the accident resulted from this different behavior, and not from a defect of the road.
The rationale for the fireman’s rule may not justify barring recovery for negligence in every case in which an officer is injured in the line of duty. The majority’s statement that the fireman’s rule prevents police officers and fire fighters from recovering for injuries sustained in the course of duty should not be read to bar recovery simply because the officer was injured in the line of duty. An officer may not recover where a substantial cause of the injury is confronting a risk inherent in fulfilling police or fire fighting duties or the performance of the very functions police officers and fire fighters are intended to fulfill. It is necessary to distinguish between the risks assumed by an officer and those that are not.
The dangers that a police officer confronts by the nature óf the profession do not include the risk of injury from defects of land open to the public. The owner of such land owes no less a duty to a police officer who is present than to a member of the general public on the same premises. The city’s duty, owed to all users of a road, to keep it in reasonable repair, is not suspended if a defect of the road causes injury of a police officer. The question is ultimately one of legislative intent. There is no reason to suppose that the Legislature intended that the city would not be liable, in situations where it would otherwise be liable, if the person who suffers injuries caused by a defect of the road, and not by driving behavior during a police chase, happens to be a police officer.
183 Mich App 656; 455 NW2d 382 (1990) reversed.
Negligence — Police Officers — Fireman’s Rule.
An injury suffered by a police officer as a result of undertaking a specific risk directly connected with the performance of duties as an officer is sufficient to justify applying the fireman’s rule to prevent recovery.
Salvatore D. Palombo & Associates (by Salvatore D. Palombo) for the plaintiffs.
Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. (by Millard Becker, Jr. and David M. Shafer), for the defendant. | 2017503 | Cavanagh, C.J., and Boyle, Riley, Griffin, and Mallett, JJ., concurred with Brickley, J. | Michigan | 208 | 2021-08-10T17:25:16.933291+00:00 | WOODS v. CITY OF WARREN | Woods v. City of Warren | WOODS v CITY OF WARREN | CAP | Michigan Reports | bafkreifoffq6se4xnxw3c6e7nyq3likl6uzozevxipx5gtoinyfoalut5q | Brickley, J.
In this case, we are asked whether the fireman's rule adopted in Kreski v Modern Wholesale Electric Supply Co, 429 Mich 347; 415 NW2d 178 (1987), applies to bar a suit brought by a police officer injured following a high speed chase. Because we believe that it does, we reverse the decision of the Court of Appeals and affirm the circuit court's order of summary disposition.
I
During the early morning hours of February 2, 1986, Sergeant Charles Woods of the Center Line Department of Public Safety was on police patrol in Center Line. Reserve Officer Phillip Smart accompanied him. Around 2:50 a.m., Sergeant Woods received word that a Camaro z-28 had been stolen and was proceeding down a nearby street. Abandoning normal patrol duties, he drove to investigate. He spotted the stolen car as it drove past the street on which Sergeant Woods was then driving. Sergeant Woods notified the dispatcher that he had located the car and gave chase.
Upon seeing Sergeant Woods, the driver of the stolen car accelerated rapidly. Sergeant Woods also sped up, trying to maintain observation of the vehicle. As the two cars sped down Lawrence Street, Reserve Officer Smart began alerting other police officers of the incident so that they could saturate the area. As they drove, Sergeant Woods interrupted Officer Smart and took over radio communications himself.
Lawrence Street runs through both the City of Center Line and the City of Warren. Although starting in Center Line, the two cars quickly entered Warren. Lawrence Street, a north-south street, ends where Republic Street, an east-west street, cuts across it, forming a "t" intersection. The stolen car approached Republic Street, attempted to turn, but could not because of glaze ice on the road, drove over the curb and came to rest in the living room of an unoccupied house on Republic Street. The thief then fled on foot. Sergeant Woods meanwhile also attempted to slow down as he approached the intersection, but, because of the icy road, could not, and smashed into the same house, suffering injuries to his pelvis and hip.
On September 26, 1986, Sergeant Woods and his wife brought this action in the Macomb Circuit Court. Following discovery, the circuit court granted defendant's motion for summary disposition on the basis of the fireman's rule. Plaintiff appealed, and the Court of Appeals reversed the circuit court's order. 183 Mich App 656; 455 NW2d 382 (1990). Defendant then filed an application for leave to appeal, which we granted. 437 Mich 1035 (1991).
II
Taking plaintiff's well-pleaded allegations as true, the particular facts alleged call for application of the fireman's rule as adopted in Kreski v Modern Electric. Because Sergeant Woods' injury resulted directly from his performance of police duties, the Macomb Circuit Court's order granting summary disposition was correct.
The fireman's rule has a long and impressive common-law heritage. Michigan first embraced it in Kreski. The fireman's rule prevents police officers and fire fighters from recovering for injuries sustained in the course of duty. Id. at 358. Even though several rationales have been advanced, the most basic is "that the purpose of safety professions is to confront danger and, therefore, the public should not be liable for damages for injuries occurring in the performance of the very function police officers and fire fighters are intended to fulfill." Id. at 368. When this rationale is implicated and no other considerations outweigh it, the fireman's rule requires dismissal of a safety officer's suit. Adjudicating these disputes requires "balancing] the underlying rationales with the interest of allowing recovery when those rationales are not implicated." Id. at 371. Thus, the rule will develop mainly through case-by-case adjudication of concrete disputes. We follow that approach today.
We believe plaintiff's suit presents a clear case for the application of the fireman's rule. In both Kreski and Reetz v Tipit, Inc, a case consolidated and decided with Kreski, this Court applied the fireman's rule to bar suits brought by a fire fighter and a police officer who suffered injuries directly related to performance of their duties. This Court dismissed both suits because the injuries clearly occurred while the safety officers were performing their duties. In Kreski, a fire fighter was killed when a part of a burning building's roof fell on him. In Reetz, a police officer suffered injuries when she fell down a trap door while investigating a burglary. Each injury occurred in the performance of a duty characteristic of the particular safety officer's job.
Sergeant Woods' crash occurred while he was performing a classic police function. After receiving a radio report of a stolen car, he located it, informed the dispatcher, and pursued it. Sergeant Woods was no longer merely on patrol; he was actively engaged in one of a police officer's most common duties. Needing to maintain sight of the stolen vehicle, Sergeant Woods accelerated to speeds between forty and forty-five miles per hour. Driving at high speeds on potentially icy roads obviously increases the risk of an accident such as Sergeant Woods'. This injury clearly stems from the performance of a fundamental police function. In such circumstances, the fireman's rule "foundational policy rationale" applies, and plaintiff's suit must share the same fate as those in Kreski and Reetz, i.e., dismissal.
III
Plaintiff seeks to avoid application of the fireman's rule with four arguments. First, he argues that an affirmative statutory obligation exists to maintain roads in a safe condition. MCL 691.1402; MSA 3.996(102). That duty, he suggests, allows "any person" to bring suit against a governmental entity for injuries caused by breach of that obligation. Second, he contends that the fireman's rule ought not to apply because the injury suffered by Sergeant Woods is not "unique" to police duties. Third, he argues that a number of "exceptions" to the fireman's rule apply, allowing Sergeant Woods' suit to proceed to trial. Finally, plaintiff suggests that grammatically parsing Kreski's holding creates a basis to bring his suit to trial. We disagree with each of these contentions.
We agree that the City of Warren has an affirmative statutory obligation to maintain its roads and that "any person" may bring a suit to enforce that obligation. We do not, however, agree that this section removes the bar to plaintiff's action imposed by the fireman's rule. In Forest v Parmalee, 402 Mich 348; 262 NW2d 653 (1978), this Court indicated that the sole purpose of MCL 691.1402; MSA 3.996(102) was to provide an exception to governmental immunity. The statute neither adds to nor detracts from a plaintiff's right to proceed in the absence of governmental immunity. Forest, supra at 358.
We also reject plaintiff's second argument. Although the danger from slippery roads is not unique to police officers, Sergeant Woods' injury flows directly from his performance of his police duties and from a specific risk which, under the circumstances, was increased by his performance of those duties. As Kreski's articulation of the fireman's rule rationale indicates, the analytical focus must be on whether the injury stems directly from an officer's police functions. If the circumstances indicate that it does, the fireman's rule applies. If the circumstances indicate otherwise, it likely does not.
We reject plaintiff's suggested "uniqueness" test for another reason as well. To adopt this approach would effectively diminish the fireman's rule. Although some injuries may be incurred more commonly by police officers, no injuries are unique to them. What is unique is being called upon to perform duties which expose officers to such risks far more often than the public at large. The kind of duty, not the kind of injury, provides the starting point for analysis.
Plaintiff's next argument asserts that Kreski apparently recognizes several "exceptions" to the fireman's rule. It did not. The Kreski Court did indicate that the rationale of the fireman's rule might not apply in every circumstance involving an injury to a safety officer. It suggested, for instance, that buildings open to the public might justify a different result and that injuries resulting from intentional torts might also justify disregarding the fireman's rule. The Court did not, however, establish that those circumstances prevented application of the fireman's rule. It merely used them to indicate its willingness to apply the rule flexibly as circumstances required. That the Kreski Court chose this language to avoid rigid and formalistic adjudication does not mean it intended to defeat application of the fireman's rule when otherwise justified.
Plaintiff's final attempt to avoid the fireman's rule is to parse the Kreski holding narrowly. He points to the following language as expressive of the scope of the fireman's rule:
[A]s a matter of public.policy, we hold that fire fighters or police officers may not recover for injuries occasioned by the negligence which caused their presence on the premises in their professional capacities. This includes injuries arising from the normal, inherent, and foreseeable risks of the chosen profession. [Kreski, supra at 372.]
During oral argument, plaintiff provided a grammatical analysis of this statement, noting that between the two sentences no conjunction is used. From a grammatical standpoint the word "includes" refers to a subset, making the entire second sentence applicable only if the predicate condition precedent of the first sentence is met. As a result, he suggests that Kreski's holding should not bar his cause of action.
Plaintiff, however, overlooks an exposition of the rule that immediately follows. As this Court held: "The scope of the rule . . . includes negligence in causing the incident requiring a safety officer's presence and those risks inherent in fulfilling the police or fire fighting duties." Kreski, supra at 372 (emphasis added). Given the factual context in Kreski and Reetz, we think the latter statement more accurately reflects the law and therefore explicitly adopt it today.
In Kreski, the plaintiff died when a burning roof fell on him. The plaintiff alleged that negligence in the design of the roof led to its collapse. The reason for plaintiff's presence, however, was the fire. According to Sergeant Woods' theory, the plaintiff should have recovered. This Court, however, denied recovery because his injury was a "normal, inherent, and foreseeable risk[]" of fire fighting duties. Id. at 372. Therefore, the Court necessarily applied the latter exposition of the rule.
The application of the fireman's rule in Reetz reinforces the conclusion that the second description of the fireman's rule most accurately states the law. In Reetz, a police officer fell through an open trap door while investigating a burglary. The reason for her presence in the building was not connected with the negligence alleged, i.e., leaving the trap door open. Again, the Court found that the fireman's rule prevented recovery in two general circumstances, not one. The disposition of these cases indicates that the fireman's rule bars recovery for two types of injury: those deriving from the negligence causing the safety officer's presence and those stemming from the normal risks of the safety officer's profession.
The following opinion was filed with the Clerk of the Supreme Court on March 27, 1992, after the release of the opinion of the Court on March 23,1992 — Reporter.
None of plaintiff's arguments suffice to prevent application of the fireman's rule in this case. Sergeant Woods suffered an injury fróm a specific risk directly connected with the performance of his police duties. In the circumstances presented here, it is sufficient to justify applying the fireman's rule in Sergeant Woods' suit.
IV
Because we believe the fireman's rule applies in these circumstances, we reverse the decision of the Court of Appeals and affirm the circuit court's order of summary disposition dismissing plaintiff's suit.
Cavanagh, C.J., and Boyle, Riley, Griffin, and Mallett, JJ., concurred with Brickley, J.
Although both Sergeant Woods and his wife filed complaints, Mrs. Woods' suit is wholly derivative. We will therefore use "plaintiif" in the singular.
Although defendant did not originally make it clear, the circuit court analyzed his motion for summary disposition as one brought under both MCR 2.116(C)(8) and MCR 2.116(0(10). We analyze the question under MCR 2.116(C)(8). Kreski, supra at 352, 356. Because summary disposition is proper under subrule (C)(8), we do not reach the subrule (C)(10) issue.
The Kreski Court described the precedential backing of the fireman's rule as "impressive" and noted that the rule was "deeply rooted in common law." Id. at 357.
In the Reetz portion of its opinion, this Court noted:
[P]olice officers cannot be certain what dangers surround them when investigating a burglary. They have been trained to expect a variety of contingencies and to deal with those contingencies as they arise. It was plaintiff's duty to investigate the burglary, despite the inherent dangers. In performance of her duty, plaintiff took the premises as she found them, with no representations being made regarding their safety. [Kreski, supra at 378.]
The Court's comment applies equally to Sergeant Woods. He had received extensive training in maneuvering cars on slippery roads, and it was Sergeant Woods' duty to follow the stolen car. If the fireman's rule applied to Officer Reetz, it applies to Sergeant Woods.
As this Court in Reich v State Highway Dep't, 386 Mich 617, 623; 194 NW2d 700 (1972), explained:
The object of the legislation under consideration is to waive the immunity of governmental units and agencies from liability for injuries caused by their negligent conduct, thus putting them on an equal footing with private tortfeasors.
McGhee v Dep't of State Police, 184 Mich App 484; 459 NW2d 67 (1990).
Sergeant Woods himself echoed this: "In the course of eighteen years, I've had numerous injuries occur, that sort of goes with my type of work."
Of course, this statement should not be taken to prevent application of these "exceptions" when Kreski';s fundamental policy rationale is inapplicable.
The Kreski Court offered this explanation in response to an argument that the negligence was unrelated to the reason the fire fighter was present. "Plaintiff also argues that, since the alleged negligence is unrelated to the cause of the fire, it was unforeseeable and, thus, not inherent in fire fighting. We disagree." Kreski, supra at 372. | 439 | 7126 |
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