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mich/1173593.json

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+"{\"id\": \"1173593\", \"name\": \"Brooks v. Delrymple\", \"name_abbreviation\": \"Brooks v. Delrymple\", \"decision_date\": \"1848-01\", \"docket_number\": \"\", \"first_page\": \"145\", \"last_page\": \"150\", \"citations\": \"1 Mich. 145\", \"volume\": \"1\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T00:08:30.423050+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Brooks v. Delrymple.\", \"head_matter\": \"Brooks v. Delrymple.\\nIn an action in a justice\\u2019s court against defendant for falsely representing himself to have title to a piece of land, which plaintiff was induced to purchase of him, it was held, the title to the land must necessarily be drawn in question, and that the justice, therefore, had not jurisdiction of the case.\\n\\\"Where there are two issues \\u2014 the general issue, and an issue on a special plea \\u2014 and the jury find a verdict for plaintiff on the general issue, but rendered no verdict on the other issue, the judgment will not be reversed, if the verdict on the general issue negatives the special plea of defendant on which the other issue was joined, and the jury could not have found for plaintiff had defendant established his special plea.\\nError to Berrien (Jircuit Court.\\nBacon, for plaintiff in error.\\nDana, for defendant in error.\", \"word_count\": \"1932\", \"char_count\": \"11052\", \"text\": \"By the court,\\nWhipple, C. J.\\nFrom an examination of tlie record, it appears that Dalrymple commenced a suit against Brooks, in the court below, to recover damages for an alleged fraud in procuring certain property and a promissory note.\\nThe declaration contains three counts, differing somewhat id the statement of the manner in which the fraud was perpetra ted, yet unquestionably relating to the same transaction. A brief statement of the first count will sufficiently indicate the character of the others.\\n. It is alleged that the plaintiff was the owner of a piece of land containing about sixty acres, on which he had paid the taxes assessed thereon, according to law; that the defendant, well knowing that the plaintiff was unlettered, and unable to read or write, fraudently represented to him that he had a deed and valid tax title to the sixty acres of land \\u2014 that he had been offered $300 for it, and that he would sell the land unless the \\u00a1fiaintiff would give him $150; that the plaintiff ignorant of the nature of tax titles and of the falsehood of the representations, and induced by the threatened loss of his land, paid to the defendant $85, or its equivalent, for his pretended tax title; that in fact the defendant had no just title or claim to the land, and the pretended deed was of no binding force or effect.\\nTo the declaration, the defendant plead the general issue, and two special pleas. The first special plea alleged, in substance, that the plaintiff impleaded the defendant before a justice of the peace for the same cause of action mentioned in the plaintiff's declaration; that upon hearing the proofs and allegations of the parties, the justice adjudged, \\\" that the said plaintiff should go thereof without day, and that the defendant recover against the said plaintiff $10 29, costs,\\\" &c. The other special plea differs from the first in this, that it is averred that the suit was commenced before the same justice, but that a jury was empanneled to try the issue, who returned a verdict of \\\" no cause of action;\\\" .that thereupon the justice \\\" determined and adjudged that the said plaintiff should go thereof without da}', and that the defendant do recover his costs,\\\" &e. Appended io the pleas was a notice, embracing the same matters set out in the special pleas. To the special plea\\u00e1f the plaintiff replied, in substance, as follows: \\\" And the said plaintiff; as to the pleas by defendant secondly and thirdly above pleaded, says, the plaintiff did not implead the defendant &c. for the same identical cause and causes of action,\\\" &c. \\\" And the said plaintiff, as to the plea of the defendant by him thirdly above pleaded, and the matters, &c., says, that no verdict or judgment thereon was rendered in said justice's court,\\\" <fec., and concludes with an issue to the country. The record further discloses that the plaintiff below, on the 10th October,. 1844\\u00bb filed with the court an amended replication, in substance as follows: \\\" And the said plaintiff, as to the plea of.the defendant by him secondly above pleaded, &a., says, precludi non, because, he says, that the judgment of the court before the justice of the peace, in that plea mentiond, was a judgment of nonsuit,\\\" &c., and concludes with a verification.\\nA verdict was rendered in favor of the plaintiff below, for less than $100 and costs of suit, to reverse which the writ of error in this cause is prosecuted. The errors assigned are: 1. That the verdict and judgment being for a less sum than $100, a judgment for costs should have been rendered in favor of Brooks. 2. That the jury rendered no verdict on the issues secondly and thirdly joined between the parties.\\nBy the justices' act of 1841' (Sess. L. 1841, p. 81, sec. 1), original jurisdiction is conferred on justices of the peace in all civil actions wherein the debt or damages demanded do not exceed the sum of $100, excepting real actions, &c., and actions in which the title to real estate shall come in question. An examination of the record shows very conclusively that the title to real estate was involved. The fraud charged upon the defendant below, consisted in representing himself as having title to the land described in the declaration; upon this representation, the plaintiff below parted with his property, and executed the promissory note also set forth in the declaration. It was, therefore, incumbent on the plaintiff, upon the trial in the court below, to show the falsehood of the representation; to do this, he must necessarily have shown that the defendant had in fact no title to the land. It is clear, therefore, that the title of the defendant below to the land in question, must have been drawn in question, and that the justice of the peace had no jurisdiction of the case.\\nThe second allegation of error must have been, founded on- a .miscon ception of the state of the pleadings. The second plea was no answer to the declaration; it avers that judgment was rendered as in case of nonsuit, and was, therefore, no bar to a second suit for the same cause of action. The third plea avers that the jury returned a verdict of \\\" no cause of action,\\\" and that thereupon judgment as in case of nonsuit was rendered. This last plea might be regarded as good, inasmuch as a verdict upon the merits, rendered by a jury before a justice, would have the same force and effect as a judgment rendered by a justice, when the merits are tried without the intervention of a jury. A verdict of \\\" no cause of action,\\\" being sufficient, the words which follow may be rejected as surplusage. ' The replication is bad; but it is, perhaps, good enough for the pleas. The plaintiff, in his replication to the second and third pleas, avers that he did not implead the defendant for the same identical cause of action; and then, as to the third plea, says, that no verdict or judgment thereon was rendered in said justice's court. The plaintiff might well have disregarded the second plea, as it simply averred that a judgment of nonsuit was rendered against the plaintiff by the justice, which constituted no bar to another suit for the same cause of action. In respect to the third plea, the replication gives two answers: 1. That the plaintiff did not implead for the same identical cause of action. 2. That no verdict or judgment was rendered in the justice's court. Upon which of these propositions the plaintiff intended to rely, does not appear \\u2014 the record is silent on the subject. The next feature in this masterly exhibition of special pleading, is to be found in the amended replication filed on the 10th October, 1844. How this paper got on the record, we are not advised; we are bound, however, to suppose it rightfully there \\u2014 more especially as the defen? dant in error, in his brief, says, that by leave of the court, a new rep? lication was filed. This replication purports to be an answer to the second plea, and avers that the judgment rendered before the justice was a judgment of nonsuit. In other words, the amended replication admits precisely what the plea states, to wit, that there was a judgment of nonsuit rendered before the justice. It is to be noticed, that this amended replication takes no notice whatever of the third plea, which plea, if true, constituted a bar to the action. Nor does it conclude with an issue to the country, but with a verification. To this replication there was no rejoinder, nor was any necessary, inasmuch as the replica? tion purported to reply to the second plea, which was a mere nullity. Having sketched the somewhat remarkable history of the pleadings in this cause, we are now prepared to determine whether the second allegation of error is well founded. There is some doubt as to whether the amended replication was intended to supersede the first replication, or whether it was intended simply to remedy the difficulty apparent in the first replication \\u2014 that difficulty consisting, in the fact that, in attempting to reply to the second plea, it purports to give a partial answer to the third plea. It seems to be a more sensible view of the question, to consider the amended replication as simply an answer to the second plea \\u2014 leaving the replication to the third plea to stand. The -issues, then, on the record to be tried, were: 1. The general issue. 2. The issue formed upon the matters contained in the defendant's third plea. The record shows a verdict for the plaintiff on the first issue, but is silent as respects the second. This objection will be decisive of the case, unless the finding of the jury on the plea of the general issue, negatives the special plea; if such be its legal effect, then the jury did, in effect, pass on the issue joined on that plea. It seems to me very clear that the jury could not have found for the plaintiff on the plea of the general issue, if the defendant had successfully established his special plea. A verdict for the defendant on that plea, would have authorized a court in directing a verdict for the defendant on the first plea, the general issue, for the obvious reason that such finding necessarily implied that the plea must have been supported, and, if supported, it constituted a perfect defence to the aetion; and the failure to find for the defendant on the first issue, would be mere matter of form. Thus, if in assumpsit there be a plea of non-assumpsit and payment, and a verdict for the plaintiff on the first issue, judgment may be entered for the plaintiff, although the plea of payment remain undecided: so a verdict for the defendant on the plea of payment, will be sufficient, although the record shows no finding on the plea of the general issue. If, in an action of replevin, there be a plea of non cepit, and property in the plaintiff, or a stranger, a verdict for the plaintiff on the first plea, would not be sufficient, for the reason that such a finding would not necessarily negative the other plea; there would, in such case, be no inconsistency in finding for the plaintiff on the first plea, and for the defendant on the other.\\nUpon the whole, there are errors enough apparent on the record, but none of so weighty a character as to authorize a reversal of the judgment.\\nJudgment affirmed.\"}"

mich/1206440.json

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+"{\"id\": \"1206440\", \"name\": \"MOLLOY v. MOLLOY\", \"name_abbreviation\": \"Molloy v. Molloy\", \"decision_date\": \"2000-12-15\", \"docket_number\": \"Docket No. 224179\", \"first_page\": \"595\", \"last_page\": \"610\", \"citations\": \"243 Mich. App. 595\", \"volume\": \"243\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T01:04:04.817947+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Collins, P.J., and Jansen and Zahra, JJ.\", \"parties\": \"MOLLOY v MOLLOY\", \"head_matter\": \"MOLLOY v MOLLOY\\nDocket No. 224179.\\nSubmitted September 14, 2000, at Detroit.\\nDecided December 15, 2000, at 9:05 A.M.\\nVacated in part by order entered January 12, 2001. 243 Mich App 801.\\nPeter Molloy obtained a divorce from Wendy Molloy in the Wayne Circuit Court, Sheila Gibson Manning, J., which awarded the parties joint legal and physical custody of their child, but effectively transferred physical custody of the child from Michigan, with the defendant, to California, with the plaintiff. The trial court had granted a motion in limine by the plaintiff for an in camera interview of the child concerning the child\\u2019s preference in terms of custody and matters relating to fault of the parties. In determining custody, the trial court considered what the child said in the interview regarding the child\\u2019s preference in terms of custody and regarding several of the other best interest factors delineated in \\u00a7 3 of the Child Custody Act, MCL 722.23; MSA 25.312(3). The defendant appealed. The Court of Appeals ordered a stay of the transfer of physical custody pending resolution of the appeal or further order of the Court of Appeals.\\nThe Court of Appeals held:\\n1. MCL 7.215(H)(1) constrains the Court of Appeals to follow the holding in Hilliard v Smith, 231 Mich App 316 (1998), that the scope of a trial court\\u2019s in camera interview of a child that is the subject of a custody dispute is not limited to the reasonable preference of the child but extends to any matter relevant to the trial court\\u2019s custody decision. Accordingly, pursuant to Hilliard, the trial court in this case did not err in extending the scope of the in camera interview to best interest factors other than the child\\u2019s preference. Were it not for Hilliard, an in camera interview such as the one in this case would be held to be proper only when confined to those matters reasonably necessary to enable the trial court to determine and understand the preference of the child. Such a limitation in scope would be consistent with the language of the Child Custody Act, would avoid due process concerns relating to the absence of a record of the interview and to the nonavailability of cross-examination, would ensure meaningful appellate review of the trial court\\u2019s findings regarding best interest factors other than the child\\u2019s preference, and would avoid placing the child in a more compromising and stressful situation.\\n2. Because the trial court\\u2019s use of the in camera interview was not error in light of Hilliard, the trial court\\u2019s factual findings regarding MCL 722.23(b), (d), (e), (f), (h), (i), (k), and (1); MSA 25.312(3)(b), (d), (e), (JO, (h), (i), (k), and (1) are not against the great weight of the evidence inasmuch as the evidence does not clearly preponderate in the opposite direction.\\n3. The trial court\\u2019s determination that there was clear and convincing evidence that custody should be changed was not a palpable abuse of discretion.\\n4. The trial court erred in ordering joint legal and physical custody without first considering whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child, as required by MCL 722.26a(l)(b); MSA 25.312(6a)(l)(b). The matter must be remanded for a reevaluation of joint custody in accordance with the statute.\\nAffirmed in part and remanded.\\nZahra, J., concurring, stated that remand is necessary because the trial court failed to comply with MCL 722.26a(l)(b); MSA 25.312(6a)(l)(b) before ordering joint legal and physical custody of the child, that the judgment of the trial court should be affirmed in all other respects, and that the trial court\\u2019s extension of the scope of the in camera interview of the child should also be affirmed, not on the basis of Hilliard, but on the ground that the defendant failed to preserve the issue for appellate review in view of her stipulation to the grant of the plaintiff\\u2019s motion in limine.\\nButzel Long (by James A. Gray, III), for the plaintiff.\\nJudith A. Curtis, for the defendant.\\nBefore: Collins, P.J., and Jansen and Zahra, JJ.\", \"word_count\": \"4618\", \"char_count\": \"27270\", \"text\": \"Jansen, J.\\nIn this child custody dispute, defendant appeals as of right from a modified judgment of divorce awarding the parties joint legal and physical custody of their son. We remand for further proceedings on the issue of joint custody, but affirm the trial court's findings under the best interest factors in the ChUd Custody Act, MCL 722.23; MSA 25.312(3). How ever, we affirm the trial court's best interest findings only because we are compelled by Hilliard v Schmidt, 231 Mich App 316; 586 NW2d 263 (1998), to do so. MCR 7.215(H)(2). Were it not for the precedential effect of Hilliard under MCR 7.215(H)(1), we would reverse the trial court's decision under the best interest factors and remand for a new child custody hearing.\\nThe parties married on January 9, 1989, in the state of California. Their son, Casey Robert, was bom on July 21, 1989. They lived in California until 1997 and then relocated to Michigan. On November 4, 1998, plaintiff filed this divorce action, seeking in part legal and physical custody of their son. On January 7, 1999, defendant filed a countercomplaint, also seeking physical custody of the parties' son. On May 12, 1997, a stipulated order was entered providing for the parties to have joint legal custody during the pendency of the divorce action. Defendant was granted physical custody of their son, and plaintiff was allowed parenting time on the third weekend of each month, alternating holidays, and for two periods of two weeks in the summer.\\nA bench trial was held on October 18 and 19, 1999, regarding the division of marital assets and the custody dispute. Plaintiff was again living in California, and defendant was living in Plymouth Township. Ultimately, the trial court rendered a lengthy oral opinion on November 5, 1999, and awarded the parties joint legal and physical custody of their son. The trial court ruled that Casey would reside with plaintiff during the school year, pending defendant's anticipated move to California. On November 22, 1999, defendant moved for reconsideration regarding the custody issue, but the trial court denied the motion in an order entered on December 3, 1999. On December 14, 1999, defendant moved for modification of custody, seeking to have Casey remain with her until the end of the school year. The trial court, however, denied the motion for modification of custody in an order entered on December 17, 1999, and that same day, a modified judgment of divorce was also entered. Although the modified judgment of divorce would have allowed plaintiff to take physical custody of Casey on December 30, 1999, this Court ordered a stay of the transfer \\\"pending resolution of this appeal or further order of this Court\\\" in an order entered on December 29, 1999.\\nOn appeal, defendant argues that the trial court erred in not restricting its in camera interview with Casey to the question of his preference for purposes of factor i of the best interest factors. Defendant also argues that the trial court erred in several of its best interest findings and that the child's established custodial environment should be changed. Defendant lastly argues that the trial court abused its discretion in ordering joint legal and physical custody.\\nWe begin our analysis with the standard of review in a child custody case, which is governed by MCL 722.28; MSA 25.312(8):\\nTo expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of the evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.\\nDefendant first claims that the trial court erred in not restricting its in camera interview of the child to the issue of the child's preference for purposes of factor i of the best interest factors. Defendant further argues that she was deprived of her right to due process and a decision based on competent evidence where the trial court utilized the in camera interview.\\nAt a pretrial motion in limine, held on October 8, 1999, the trial court considered plaintiff's request that the child, who was ten years old at the time, be allowed to testify. Plaintiff's counsel stated the following:\\nI've made several requests in my Motion in Limine, your Honor. The first, and I think most controversial, would be the request that the minor child, who is 10 years of age, be allowed to testify.\\nI'm not suggesting, at this point, how that best would be accomplished. Conceivably, it could be done by, your Honor, in chambers or something of that sort. But in light of the fact that the Defendant/Counter Plaintiff is going to raise the issue of fault. And most of the incidents, I would guess, if not all of them took place in the presence of this minor child who is, certainly, the most interested in the outcome of this case.\\nI would think that rather than deciding this matter on the basis of which of two witnesses is the most convincing, perhaps a third somewhat independent party, I think that the testimony would probably be of some use to the Court.\\nI also had made a request that I believe [defendant's counsel] and I are now in agreement with that neither attorney, in any event, will talk to the youngster.\\nBut that is the first portion of my motion is that he be allowed to testify in some fashion as to not just the custody issues, but also those occurrences that he would observed [sic] dealing with the issue of fault.\\nDefendant's counsel responding by stating:\\nYour Honor, if we're going to present issues of fault then we will choose our witness and our \\\"witness is not going to be this child. This little boy is 10 years old.\\n#\\nWe think it is absolutely abhorrent to even suggest to this Court that a 10 year old child come in here and be put on the stand and subpoenaed to testify as to fault of the parents.\\nPlaintiff's counsel responded by stating that he did not want the child to testify with his parents in the court room, and asked defendant's counsel to agree to drafting questions for the child that the trial court could ask during its interview. Defendant's counsel stated that she was not inclined to prepare any questions for the child and stated, \\\"I have enough faith in this Court that the Court will ask the child questions in such a way not to pit the child [against the mother and father].\\\"\\nUltimately, the trial court did conduct an in camera interview with the child. The trial court set forth with some detail the child's indications from the interview in its findings on the record. It is clear from the trial court's findings that the trial court utilized the child's interview with regard to several of the best interest factors and went far beyond simply noting the child's preference.\\nWe initially reject defendant's argument on appeal that she was denied due process because the child did not testify in an open court room and that she was not permitted to cross-examine the child. This Court has approved, on numerous occasions, the propriety of in camera interviews of children in child custody disputes and of not subjecting the children to cross-examination by attorneys. Impullitti v Impullitti, 163 Mich App 507, 509-510; 415 NW2d 261 (1987); In re Crowder, 143 Mich App 666, 668-669; 373 NW2d 180 (1985); Lesauskis v Lesauskis, 111 Mich App 811, 814-816; 314 NW2d 767 (1981); Burghdoff v Burghdoff, 66 Mich App 608, 612-613; 239 NW2d 679 (1976); Roudabush v Roudabush, 62 Mich App 391, 394; 233 NW2d 596 (1975). As noted by these cases, the reason for utilizing in camera interviews of children in child custody disputes and having only the trial court interview the child is to lessen the emotional trauma and distress for the child in a proceeding that is already filled with trauma. Additionally, such a process protects the child from openly having to choose sides.\\nConsequently, the trial court's utilization of an in camera interview of the child was entirely proper and did not deprive either party of due process and the child's statements at the interview do not constitute incompetent evidence.\\nWe would, however, find merit with regard to defendant's argument that the trial court erred in not limiting the interview to the child's preference. Because we are bound by the rule of law established in Hilliard, pursuant to MCR 7.215(H)(1), we are compelled to follow Hilliard and find that the trial court did not err in utilizing the in camera interview to consider factors other than the child's preference regarding custody.\\nHilliard involved a similar factual situation in which the parties' son was interviewed in an in camera hearing and the scope of the in camera hearing was not limited to the child's preference regarding custody. Specifically, this Court held in Hilliard, supra, pp 320-321:\\nWhile Lesauskis, supra, and Burghdoff, supra, dealt with the propriety of in camera interviews to determine the reasonable preference of a child whose custody was at issue, we conclude that such in camera interviews should not be limited to aiding in the assessment of that single best interests of the child factor. The minor children of the parties to a custody dispute will often be among the best sources of information for a trial court regarding many of the statutory best interests factors. The trial court should be able to obtain this information from such minor children without subjecting them to the \\\"additional distress resulting from cross-examination and testifying before the parents.\\\" Lesauskis, supra, p 815. Because the predominant concern should be the welfare of the child, Heid [v AAASulewski (After Remand), 209 Mich App 587, 595; 532 NW2d 205 (1995)], we decline to follow Lesauskis and Burghdoff to the extent that those cases might be construed as limiting the scope of an in camera interview with a child of the parties to a custody dispute to a determination of the child's preference regarding custody. Rather, such an in camera interview may extend to any matter relevant to the trial court's custody decision.\\nWe respectfully disagree with this holding and, were we permitted, we would follow the line of cases limiting the scope of an in camera interview with a child in a child custody dispute to a determination of the child's preference regarding custody. See Impullitti, supra, p 510; Lesauskis, supra, p 815; Burghdoff, supra, pp 612-613.\\nThere are good reasons for limiting the scope of an in camera interview to a determination of the child's preference regarding custody, reasons that were not acknowledged in Hilliard. The best interest statute states that the \\\"reasonable preference of the child, if the court considers the child to be of sufficient age to express preference\\\" is one factor to be considered, evaluated, and determined by the court regarding its best interest findings. MCL 722.23(i); MSA 25.312(3)(i). This is only one of many factors to be considered by the trial court in its overall determination of the best interests of the child, factors that need not be given equal weight. McCain v McCain, 229 Mich App 123, 131; 580 NW2d 485 (1998). MCL 722.23(i); MSA 25.312(3)(i) provides for the child's preference only as one factor to be considered and does not include utilizing the child's inclinations with respect to any other best interest factor. Thus, the statute itself limits the child's expression to a reasonable preference, and only if the child is of sufficient age to express a preference.\\nFurther, allowing the in camera interview to exceed the scope of ascertaining the child's preference could result in the due process violation that this Court has sought to avoid. Because the in camera interview is not on the record and there is no cross-examination, and often no other attorneys present, allowing the interview to extend to any matter relevant to the trial court's custody decision could well result in due process concerns. Generally, a trial court is required to state brief, definite, and pertinent findings and conclusions on contested matters. MCR 2.517(A)(2); Fletcher v Fletcher, 447 Mich 871, 883; 526 NW2d 889 (1994). Because no record would be available of the in camera interview of the child, this Court would be reliant solely on the findings of the trial court; yet, trial courts are often reluctant to state the child's preference on the record so as not to offend the parents or place further undue stress on the child. See, e.g., Patrick v Patrick, 99 Mich App 132, 134-135; 297 NW2d 635 (1980); Gulyas v Gulyas, 75 Mich App 138, 142; 254 NW2d 818 (1977). Thus, if the trial court uses the child's interview to determine best interest factors other than only the child's preference, an appellate court would be without any form of meaningful review. Although trial courts are in a better position to make credibility determinations, weigh the evidence, and resolve factual conflicts, the court's discretion in weighing the evidence is not unlimited because it must be supported by the weight of the evidence. Fletcher, supra, p 881. Consequently, allowing the trial court to use the in camera interview with regard to any or all of the best interest factors could insulate its findings from meaningful appellate review in a way that is actually detrimental to the best interests of the child.\\nMoreover, using the child's interview to resolve credibility issues or conflicts in the testimony would be highly improper and create the types of problems that in camera interviews are supposed to alleviate: increased stress and trauma for the child. Burghdoff, supra, p 613. Although we are sympathetic with the statement in Hilliard, supra, p 320, that the \\\"children of the parties to a custody dispute will often be among the best sources of information for a trial court regarding many of the statutory best interests factors,\\\" we believe that using the in camera interview for anything more than the preference of the child could place the child in such a compromising and stressful situation that it far outweighs the need for additional information, even if the child is the best source.\\nAccordingly, were it not for the precedential effect of Hilliard, we would follow the rule of Burghdoff, supra, pp 612-613:\\nWe now hold that sound policy requires that [an in camera] conference be confined to those matters reasonably necessary to enable the circuit judge to determine and understand the preference of the child. The circuit judge should be particularly sensitive to the trauma that a custody proceeding often has for a child, because a child is often caught in the middle in a struggle between two parents, and forced to choose sides when [the child] does not want to do so.\\nHowever, because we are bound by Hilliard, we conclude that the trial court in the present case did not err in extending the scope of the in camera interview to best interest factors other than the child's preference.\\nDefendant next argues that the trial court erred in its evaluation of eight of the best interest factors and in finding that the child's established custodial environment should be changed.\\nDefendant specifically contends that the trial court erred in its evaluation of factors b, d, e, f, h, i, k, and 1. We note, again, that were we not bound by Hilliard, we would reverse and remand for a new custody hearing. This is because the trial court clearly used the in camera interview with regard to several of the best interest factors and not only the child's preference. We would find this to be error that is not harmless, and we would remand for a new hearing with specific instruction that the trial court not use the in camera hearing for any factor other than the child's preference. However, because the trial court's utilization of the in camera interview is not error in light of Hilliard, we must also conclude that, having carefully reviewed the record, the trial court's factual findings are not against the great weight of the evidence because the evidence does not clearly preponderate in the opposite direction. Fletcher, supra, pp 878-879.\\nFurther, on the basis of our review of the best interest factors and the entire record, we conclude that the trial court's determination that there was clear and convincing evidence that custody should be changed was not a palpable abuse of discretion. Id., p 880; Hayes v Hayes, 209 Mich App 385, 387; 532 NW2d 190 (1995). We note, too, that defendant has failed to brief the merits of the trial court's decision with regard to her posttrial motions to modify custody. See MCL 722.27(l)(c); MSA 25.312(7)(l)(c) (a trial court may modify or amend its previous judgments or orders for proper cause shown or because of a change in circumstances).\\nLastly, defendant argues that the trial court abused its discretion by ordering joint legal and physical cus tody. Here, the record fails to show that the trial court complied with MCL 722.26a(l)(b); MSA 25.312(6a)(l)(b), which requires it to consider \\\"[wjhether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.\\\" This omission constitutes clear legal error. Therefore, we remand for the trial court to reevaluate the question of joint custody in accordance with MCL 722.26a(l)(b); MSA 25.312(6a)(l)(b). The trial court, in its discretion, may conduct whatever hearings it deems necessary to make an accurate decision with regard to the question whether the change of custody should entail both physical and legal custody with plaintiff, joint physical and legal custody, or a combination thereof. Ireland v Smith, 451 Mich 457, 468-469; 547 NW2d 686 (1996).\\nAffirmed in part and remanded for proceedings consistent with this opinion. Jurisdiction is not retained. No taxable costs pursuant to MCR 7.219, neither party having prevailed in full.\\nCollins, P.J., concurred.\\nWe cannot agree with our concurring colleague that this issue was not preserved by defendant. It was plaintiffs request to have the child testify, and defendant specifically cautioned that the child not be pitted against the mother or the father. Moreover, it is the court's duty to independently determine the child's best interests by considering, evaluating, and determining the factors set forth in \\u00a7 3 of the Child Custody Act. See Lombardo v Lombardo, 202 Mich App 151, 160; 507 NW2d 788 (1993).\\nSee, e.g., Breneman v Breneman, 92 Mich App 336, 342-343; 284 NW2d 804 (1979), where this Court held that the trial court did not err in aHowing the parties' eleven-year-old son to testify in open court because the child was called to testify with regard to the alleged abuse and mistreatment inflicted on him by his mother and stepfather. This Court in Breneman distinguished Burghdoff on the ground that an in camera interview was the desired process to question a child with regard to the child's preference only.\"}"

mich/12094226.json

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+"{\"id\": \"12094226\", \"name\": \"CHARLES KELLY versus GEORGE JOHNSON\", \"name_abbreviation\": \"Kelly v. Johnson\", \"decision_date\": \"1836\", \"docket_number\": \"\", \"first_page\": \"174\", \"last_page\": \"174\", \"citations\": \"5 Blume Sup. Ct. Trans. 174\", \"volume\": \"5\", \"reporter\": \"Transactions of the Supreme Court of the territory of Michigan\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T22:05:04.497549+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CHARLES KELLY versus GEORGE JOHNSON.\", \"head_matter\": \"CHARLES KELLY versus GEORGE JOHNSON.\", \"word_count\": \"13\", \"char_count\": \"83\", \"text\": \"Papers in File (1809): (1) Capias and return.\"}"

mich/12304308.json

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+"{\"id\": \"12304308\", \"name\": \"In re DENG\", \"name_abbreviation\": \"In re Deng\", \"decision_date\": \"2016-03-22\", \"docket_number\": \"Docket No. 328826\", \"first_page\": \"615\", \"last_page\": \"635\", \"citations\": \"314 Mich. App. 615\", \"volume\": \"314\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T02:28:27.250914+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: SAAD, P.J., and SAWYER and HOEKSTRA, JJ.\", \"parties\": \"In re DENG\", \"head_matter\": \"In re DENG\\nDocket No. 328826.\\nSubmitted March 2, 2016, at Detroit.\\nDecided March 22, 2016, at 9:05 a.m.\\nLeave to appeal denied 500 Mich 860.\\nFollowing a petition by the Department of Health and Human Services, Jasmine K. Thuc (respondent) and her husband were adjudicated in the Kent Circuit Court, Family Division, as being unfit parents. Under MCL 712A.2(b)(l) and (2) (part of the juvenile code, MCL 712A.1 et seg.), the court, Paul J. Denenfeld, J., assumed jurisdiction over their children, made the children temporary wards of the court, and placed them in out-of-home foster care. Respondent and her husband both received a case service plan, with the aim of reuniting the family. At a permanency planning hearing, the foster care worker requested an order requiring that the children be vaccinated, but respondent objected to vaccination on religious grounds. Following an eviden-tiary hearing, the court ordered the physician-recommended vaccinations over respondent\\u2019s religious objections. Although the court recognized that parents generally enjoy the right under MCL 333.9215(2) and MCL 722.127 to prevent vaccinations on religious grounds, the court reasoned that those provisions did not apply to parents who had been adjudicated as being unfit. The court noted that MCL 712A.18(l)(f) and MCL 722.124a gave it authority to direct the medical care of children within the court\\u2019s jurisdiction, so the court, not respondent, was required to make medical decisions, including those regarding vaccinations. The trial court also determined that respondent could not raise a constitutional challenge to vaccination because respondent did not have the same level of constitutional rights with respect to child-rearing decisions as a fit parent would. The Court of Appeals granted respondent leave to appeal, and the family court stayed the enforcement of its order.\\nThe Court of Appeals held,-.\\n1. The family court did not exceed its authority by ordering vaccination of the children over respondent\\u2019s objections. Parents have a fundamental liberty interest in the companionship, care, custody, and management of their children and enjoy the right to the free exercise of religion. Following adjudication proceedings establishing a parent as unfit, however, the parent relinquishes the right to object on religious grounds to the vaccination of his or her children and must yield to the family court\\u2019s orders regarding the child\\u2019s welfare. During the dispositional phase of child protective proceedings, the court has the authority under MCL 712A.18(l)(f) to order vaccination of a child when the facts proved and ascertained demonstrate that immunization is appropriate for the welfare of the juvenile and society. A parent\\u2019s right to control the custody and care of children is not absolute, and the state has a legitimate interest in protecting the moral, emotional, mental, and physical welfare of the children. When a parent has been found unfit, the state may interfere with the parent\\u2019s right to direct the care, custody, and control of a child. The court is given broad powers under numerous statutes and court rules, including MCL 712A.18, MCL 712A.18f(4), MCL 712A.6, MCR 3.973(F), and MCR 3.975(G), to enter orders for the welfare of the child and the interests of society and to mate decisions regarding a host of issues that would normally fall to the parent to decide, including the authority to decide the child\\u2019s placement, order medical or other healthcare for the child, provide clothing and other incidental items as necessary, order compliance with case service plans, allow parental visits with the child, enter orders affecting adults, and, more generally, enter orders the court considers necessary for the interests of the child. Given respondent\\u2019s adjudication as being an unfit parent and the safeguards that afforded her due process for the protection of her rights during the child protective proceedings, there was no constitutional basis on which she could prevent the court\\u2019s interference with her control of her children and, in particular, with respect to the vaccination of her children.\\n2. Respondent also contended that she had the statutory authority to object to the vaccination of her children and that this right persisted even after her adjudication as an unfit parent. The Public Health Code, MCL 333.1101 et seq., sets forth a scheme governing vaccinations. Under MCL 333.9205, MCL 333.9208(1), and MCL 333.9211(1), parents are required to have their children immunized at certain ages and to present a certificate of immunization when enrolling their child in school or preschool programs. MCL 333.9215(2), however, provides an exception to these requirements if the parent submits a written statement indicating that the vaccination requirements cannot be met because of religious convictions or other objections to vaccination. Were respondent a fit parent entitled to the control and custody of her children, MCL 333.9215(2) would allow her to forgo the immuni zation of her children otherwise required by the Public Health Code on the grounds of a religious objection. That statute did not apply in this case, however, because the family court did not order the children\\u2019s vaccinations under any provision of the Public Health Code but instead exercised its broad authority to enter dispositional orders for the welfare of children under its jurisdiction, including the authority to enter dispositional orders regarding medical treatment. Another statute, MCL 722.124a(l), part of the childcare organizations act, MCL 722.111 et seq., provides that the family court may consent to routine, nonsurgical medical care or emergency medical and surgical treatment of a child placed in out-of-home care. MCL 722.127, however, provides that nothing in the rules adopted pursuant to that act authorizes or requires medical examination, vaccination, or treatment for any child whose parent objects on religious grounds. Respondent argued that MCL 722.127 therefore gave her an ongoing right to prevent the vaccination of her children. That provision, however, applies only in the context of the childcare organizations act, not the juvenile code, and to the extent that a conflict exists between the limitations in MCL 722.127 and a court\\u2019s broader authority under the juvenile code, the juvenile code prevails as the more specific grant of authority.\\nAffirmed.\\nChild Protective Proceedings \\u2014 Objections to Vaccinations of Children on Religious Grounds \\u2014 Unfit Parents.\\nThe Public Health Code, MCL 333.1101 et seq., sets forth a scheme governing the vaccination of children; under MCL 333.9205, MCL 333.9208(1), and MCL 333.9211(1), parents are required to have their children vaccinated at certain ages and present a certificate of immunization when enrolling their child in school or preschool programs; MCL 333.9215(2) provides an exception to those requirements if the parent submits a written statement indicating that the vaccination requirements cannot be met because of religious convictions or other objections to vaccination; if a parent is determined in the adjudicative phase of a child protective proceeding under the juvenile code, MCL 712A.1 et seq., to be unfit, however, the parent relinquishes the right to object on religious grounds to the vaccination of his or her children and must yield to the orders of the family division of the circuit court regarding the child\\u2019s welfare; during the subsequent dispositional phase, the family court has the authority under MCL 712A.18(l)(f) to order the vaccination of the children when the facts proved and ascertained demonstrate that immunization is appropriate for the welfare of the juvenile and society.\\nSpeaker Law Firm, PLLC (by Liisa R. Speaker), William A. Forsyth, Prosecuting Attorney, and James K. Benison, Chief Appellate Attorney, for the Department of Health and Human Services.\\nTerese A. Pdletta for Jasmine K. Thuc.\\nBefore: SAAD, P.J., and SAWYER and HOEKSTRA, JJ.\", \"word_count\": \"6406\", \"char_count\": \"40061\", \"text\": \"HOEKSTRA, J.\\nIn these child protective proceedings under the juvenile code, MCL 712A.1 et seq., respondent appeals by leave granted a dispositional order requiring that respondent's children receive physician-recommended vaccinations. Because the trial court has the authority to make medical decisions over a respondent's objections to vaccination for children under its jurisdiction and the court did not clearly err by determining that vaccination was appropriate for the welfare of respondent's children and society, we affirm.\\nI. FACTS AND PROCEDURAL HISTORY\\nRespondent and her husband have four children together, all under the age of six. Following a hearing on December 23, 2014, respondent and her husband were both adjudicated as unfit parents. The facts leading to this adjudication included periods of homelessness and unstable housing, failure to provide financial support and food for the children, improper supervision of the children, and respondent's mental-health and substance-abuse issues, including suicidal ide-ation prompting respondent's hospitalization. Given these circumstances, the trial court found by a preponderance of the evidence that statutory grounds existed to exercise jurisdiction over the children pursuant to MCL 712A.2(b)(l) and (2). The children were made temporary wards of the court and placed in out-of- home foster care. Respondent and her husband both received a case service plan, with the aim of reuniting the family.\\nAt a permanency planning hearing on June 3, 2015, the foster care worker assigned to the case requested an order from the trial court requiring the children to be vaccinated. Respondent objected to vaccination on religious grounds. The trial court granted petitioner's request for vaccination, but afforded respondent an opportunity to file written objections and to present evidence at a hearing. At the evidentiary hearing, respondent testified regarding her religious objections to vaccination, and the trial court also heard medical testimony from the children's pediatrician, who testified regarding the benefits of immunization, both to protect the children from disease and to protect society by preventing of the spread of disease. The pediatrician opined that the benefits of vaccination outweighed the risks, and she specified that vaccinations were recommended by the American Academy of Pediatrics and the Centers for Disease Control and Prevention.\\nFollowing the hearing, the trial court issued a written opinion and order, requiring the physician-recommended vaccinations over respondent's religious objections. The trial court indicated that it would \\\"assume\\\" that respondent's religious objections were sincere. But despite the sincerity of her objections, the trial court nonetheless concluded that respondent could not prevent the inoculation of her children on religious grounds because she had been adjudicated as unfit and had thus \\\"forfeited the right\\\" to make vaccination decisions for her children. In particular, the trial court noted that MCL 712A.18(l)(f) and MCL 722.124a afford the court authority to direct the medical care of a child within the court's jurisdiction, so that it fell to the court, and not respondent, to make medical decisions, including immunization decisions. In this context, although parents generally enjoy the right to prevent vaccinations on religious grounds under MCL 333.9215(2) and MCL 722.127, the trial court reasoned that these provisions did not apply to parents who had been adjudicated as \\\"unfit.\\\" Apart from these specific statutory provisions, the trial court determined that, more generally, respondent could not raise a constitutional challenge to vaccination because Free Exercise Clause challenges to vaccinations have been routinely rejected by the courts and, in any event, after being adjudicated as unfit, respondent did not have \\\"the same level of constitutional rights of child-rearing decisions for her children in care as a fit parent would . . . .\\\" Ultimately, the trial court concluded that it had authority to order vaccination over respondent's objections. Because it concluded that the giving of vaccines would benefit the children and society, the trial court entered an order for the children to receive the physician-recommended vaccinations.\\nRespondent filed an application for leave to appeal and a motion for immediate consideration, both of which we granted. Pending the outcome of this appeal, the trial court has stayed enforcement of its inoculation order.\\nOn appeal, respondent argues that she has the right to object to the vaccination of her children on religious grounds and that the trial court therefore erred by entering an order requiring the vaccination of her children. Relying on MCL 722.127 and briefly citing provisions in the Public Health Code, MCL 333.1101 et seq., respondent primarily claims a statutory right to object to the vaccination of her children. Interwoven with this statutory argument, respondent also emphasizes that she has a protected liberty interest in religious freedom and the determination of the care, custody, and nurturance of her children. According to respondent, under the principles set forth in Hunter v Hunter, 484 Mich 247; 771 NW2d 694 (2009), her rights survived even after she had been adjudicated unfit. Consequently, respondent contends that she has an ongoing right under MCL 722.127 to object to the vaccination of her children on the basis of her sincerely held religious beliefs.\\nII. STANDARD OF REVIEW AND RULES OF STATUTORY INTERPRETATION\\nA trial court's dispositional orders, entered after the court assumes jurisdiction over the child, \\\"are afforded considerable deference on appellate review [.] \\\" In re Sanders, 495 Mich 394, 406; 852 NW2d 524 (2014). While dispositional orders must be \\\" 'appropriate for the welfare of the juvenile and society in view of the facts proven and ascertained,' \\\" they will not be set aside unless clearly erroneous. Id., quoting MCL 712A.18(1); see also In re Macomber, 436 Mich 386, 399; 461 NW2d 671 (1990). Likewise, any factual findings underlying the trial court's decision are reviewed for clear error. In re Morris, 300 Mich App 95, 104; 832 NW2d 419 (2013). To the extent the trial court's order in this case implicates questions of statutory interpretation and constitutional law, our review of these questions of law is de novo. In re AMAC, 269 Mich App 533, 536; 711 NW2d 426 (2006).\\nThe goal of statutory interpretation is to give effect to the Legislature's intent. In re AJR, 496 Mich 346, 352; 852 NW2d 760 (2014). To ascertain the Legislature's intent, we begin with the language of the statute, giving words their plain and ordinary meaning. In re LE, 278 Mich App 1, 22; 747 NW2d 883 (2008). \\\"The Legislature is presumed to have intended the meaning it plainly expressed, and when the statutory language is clear and unambiguous, judicial construction is neither required nor permitted.\\\" In re RFF, 242 Mich App 188, 198; 617 NW2d 745 (2000).\\nIII. ANALYSIS\\nKeligious freedom and the right to \\\"bring up children\\\" are among those fundamental rights \\\"long recognized . as essential to the orderly pursuit of happiness by free men.\\\" Meyer v Nebraska, 262 US 390, 399; 43 S Ct 625; 67 L Ed 1042 (1923). \\\"Generally, the state has no interest in the care, custody, and control of the child and has no business interfering in the parent-child relationship.\\\" In re AP, 283 Mich App 574, 591; 770 NW2d 403 (2009). Instead, \\\"the custody, care and nurture of the child reside first in the parents . . . .\\\" Prince v Massachusetts, 321 US 158, 166; 64 S Ct 438; 88 L Ed 645 (1944). Indeed, \\\"[i]t is undisputed that parents have a fundamental liberty interest in the companionship, care, custody, and management of their children.\\\" In re B & J, 279 Mich App 12, 23; 756 NW2d 234 (2008). Moreover, parents and their children enjoy the right to the free exercise of religion, and parents have the right to give their children \\\"religious training and to encourage them in the practice of religious belief, as against preponderant sentiment and assertion of state power voicing it. . . .\\\" Prince, 321 US at 165. See also Wisconsin v Yoder, 406 US 205, 213; 92 S Ct 1526; 32 L Ed 2d 15 (1972).\\nHowever, a parent's right to control the custody and care of children \\\"is not absolute, as the state has a legitimate interest in protecting the moral, emotional, mental, and physical welfare of the minor . . . .\\\" Sanders, 495 Mich at 409-410 (citation and quotation marks omitted). \\\"When a child is parented by a fit parent, the state's interest in the child's welfare is perfectly aligned with the parent's liberty interest.\\\" Id. at 416. That is, \\\"there is a presumption that fit parents act in the best interests of their children.\\\" Troxel v Granville, 530 US 57, 68; 120 S Ct 2054; 147 L Ed 2d 49 (2000) (opinion by O'Connor, J.). Thus,\\nso long as a parent adequately cares for his or her children (i. e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children. [Id. at 68-69.]\\nSee also AP, 283 Mich App at 591.\\nIn contrast, when a parent has been found \\\"unfit,\\\" the state may interfere with a parent's right to direct the care, custody, and control of a child. See Sanders, 495 Mich at 418; AP, 283 Mich App at 592-593. This intervention may be initiated under the abuse-and-neglect provisions of the juvenile code by the state's filing of a petition, requesting that the court take jurisdiction over a child. Sanders, 495 Mich at 404-405; In re Kanjia, 308 Mich App 660, 664; 866 NW2d 862 (2014). Once a petition has been filed, there are two phases to child protective proceedings in Michigan: the adjudicative phase and the dispositional phase. Sanders, 495 Mich at 404. During the adjudicative phase, the court determines by accepting a parent's plea or conducting a trial regarding the allegations in the petition whether it can take jurisdiction over the child. Id. at 404-405. See also MCL 712A.2(b); MCR 3.971; MCR 3.972. The procedural safeguards in place during the adjudicative phase \\\" 'protect the parents from the risk of erroneous deprivation' \\\" of their rights. Sanders, 495 Mich at 406, quoting In re Brock, 442 Mich 101, 111; 499 NW2d 752 (1993). Ultimately, \\\"[w]hen the petition contains allegations of abuse or neglect against a parent, MCL 712A.2(b)(1), and those allegations are proved by a plea or at the trial, the adjudicated parent is unfit.\\\" Sanders, 495 Mich at 405.\\nAfter the parent has been found unfit, the trial court assumes jurisdiction over the child and the disposi-tional phase of proceedings begins. Id. at 406. \\\"The purpose of the dispositional phase is to determine 'what measures the court will take with respect to a child properly within its jurisdiction and, when applicable, against any adult....'\\\" Id., quoting MCR 3.973(A) (emphasis omitted). To effectuate this purpose, the court holds periodic review hearings at which the respondent has a right to be present, examine reports, and cross-examine the individuals making those reports. MCR 3.973(D)(2) and (E)(3); Sanders, 495 Mich at 406-407. In determining what measures to take with respect to a child, the court must consider the case service plan prepared by Michigan's Department of Health and Human Services (DHHS) as well as information provided by various individuals, including the child's parent. MCL 712A.18f(4); MCR 3.973(E)(2) and (F)(2); Sanders, 495 Mich at 407.\\n\\\"The court has broad authority in effectuating dis-positional orders once a child is within its jurisdiction.\\\" Sanders, 495 Mich at 406. And the court may enter \\\"orders that govern all matters of care for the child.\\\" In re AMB, 248 Mich App 144, 177; 640 NW2d 262 (2001). See also Macomber, 436 Mich at 389. For example, relevant to the present dispute, under MCL 712A.18(1), if the court finds that a child is under its jurisdiction, the court may enter orders of disposition that are \\\"appropriate for the welfare of the juvenile and society in view of the facts proven and ascertained,\\\" including an order to \\\"[p]rovide the juvenile with medical, dental, surgical, or other health care, in a local hospital if available, or elsewhere, maintaining as much as possible a local physician-patient relationship . . . .\\\" MCL 712A.18(l)(f). See also MCL 712A.18f(4); AMB, 248 Mich App at 176-177.\\nWith this framework in mind, the question before us in this case is a narrow one\\u2014namely, whether a parent who has been adjudicated as unfit has the right during the dispositional phase of the child protective proceedings to object to the inoculation of her children on religious grounds. We conclude that, by virtue of adjudication proceedings establishing a parent as unfit, the parent relinquishes this right and must yield to the trial court's orders regarding the child's welfare. Consequently, during the dispositional phase, the trial court has the authority to order vaccination of a child when the facts proved and ascertained demonstrate that immunization is appropriate for the welfare of the juvenile and society. MCL 712A.18(l)(f).\\nIn particular, as noted, parents have a fundamental liberty interest in the care and control of their children and a fundamental right to the free exercise of their religion, including the right to raise their children in that religion. Meyer, 262 US at 399. These rights do \\\"not evaporate simply because they have not been model parents . . . .\\\" Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982). Nonetheless, it is only \\\"fit\\\" parents who are presumed to act in the best interests of their children, and only \\\"fit\\\" parents who enjoy the control, care, and custody of their children unfettered by governmental interference. See Troxel, 530 US at 68-69; Sanders, 495 Mich at 410. In contrast, through the course of child protective proceedings, particularly the adjudicative phase, the parent loses the presumption of fitness, at which time the state becomes empowered to interfere in the functioning of the family for the welfare of the child and to infringe on the parent's ability to direct the care, custody, and control of the child. See Sanders, 495 Mich at 418; AP, 283 Mich App at 592-593. Parental rights have not been irrevocably lost at this stage, but a determination of \\\"unfitness so breaks the mutual due process liberty interests as to justify interference with the parent-child relationship.\\\" In re Clausen, 442 Mich 648, 687 n 46; 502 NW2d 649 (1993).\\nAs a result, the court gains broad powers to enter orders for the welfare of the child and the interests of society and make decisions regarding a host of issues that would normally fall to the parent to decide, including the ability to decide the child's placement, order medical care or other healthcare for the child, provide clothing and other incidental items as necessary, order compliance with case service plans, allow parental visitation with the child, enter orders affecting adults, and, more generally, enter orders that the court considers necessary for the interests of the child. MCL 712A.18; MCL 712A.18f(4); MCL 712A.6; MCR 3.973(F); MCR 3.975(G). See also Sanders, 495 Mich at 406-407. Quite simply, following adjudication, which affords a parent due process for the protection of his or her liberty interests, the parent is no longer presumed fit to make decisions for the child and that power, including the power to make medical decisions involving immunization, rests instead with the court. See MCL 712A.18(1)(f); Sanders, 495 Mich at 409-410, 418. Consequently, given respondent's adjudication as an unfit parent and the safeguards affording her due process for the protection of her rights during the child protective proceedings, we find no constitutional basis on which respondent may prevent the court's interference with her control of her children and, in particular, the vaccination of her children when the facts proved and ascertained in this case demonstrate that inoculation is appropriate for the welfare of her children and society. MCL 712A.18(l)(f).\\nAside from her espousal of general constitutional principles, respondent contends on appeal that she has the statutory authority\\u2014which was designed for the protection of her constitutional rights\\u2014to object to the vaccination of her children and that this right persists even after her adjudication as an unfit parent. With regard to immunization, Michigan has a statutory scheme, set forth in the Public Health Code, governing vaccinations. As empowered by the Legislature, the DHHS has the authority to establish procedures for the control of diseases and infections, including the ability to establish vaccination requirements. MCL 333.5111(2)(c). Regarding children in particular, the DHHS may promulgate rules related to childhood immunization, including ages for vaccinations and the minimum number of doses required. MCL 333.9227(1). Parents are required to provide for the vaccination of their children \\\"within an age period\\\" prescribed by the DHHS, MCL 333.9205, and present a certificate of immunization when enrolling their child in school or preschool programs, MCL 333.9208(1) and MCL 333.9211(1). However, as an exception to this requirement, a child is exempt from vaccination requirements if the child's parent provides a written statement indicating that the vaccination requirements \\\"cannot be met because of religious convictions or other objection to immunization.\\\" MCL 333.9215(2). See also MCL 333.5113(1) and MCL 380.1177(l)(b).\\nWe recognize that, were respondent a fit parent entitled to the control and custody of her children, MCL 333.9215(2) would undoubtedly allow her to forgo the vaccination of her children otherwise required by the Public Health Code on the grounds of a religious objection. However, this provision is inapplicable on the present facts for the simple reason that the children are not being immunized as a result of provisions in the Public Health Code. That is, the trial court did not order the children's vaccinations under any provision in the Public Health Code; rather, as discussed, the court exercised its broad authority to enter dispo-sitional orders for the welfare of a child under its jurisdiction, including the authority to enter disposi-tional orders regarding medical treatment. See MCL 712A.18(1)(f); Sanders, 495 Mich at 406. This authority is conferred on the trial court by MCL 712A.18(1)(f) of the juvenile code, following the adjudication of the parent as unfit. See MCL 712A.2(b). The juvenile code includes no provision restricting the trial court's authority to enter dispositional orders affecting a child's medical care on the basis of a parent's objections to vaccinations, and it would be inappropriate to graft on such an exception from the Public Health Code. See generally Grimes v Dep't of Transp, 475 Mich 72, 85; 715 NW2d 275 (2006) (\\\"[RJeliance on an unrelated statute to construe another is a perilous endeavor to be avoided by our courts.\\\"); Donkers v Kovach, 211 Mich App 366, 371; 745 NW2d 154 (2007) (\\\" '[C]ourts cannot assume that the Legislature inadvertently omitted from one statute the language that it placed in another statute, and then, on the basis of that assumption, apply what is not there.' \\\") (citation omitted). Instead, as a statutory matter, after a parent has been found unfit, MCL 712A.18(l)(f) affords courts the broad authority to make medical decisions for a child under their jurisdiction, and respondent cannot rely on provisions in the Public Health Code to trump this broad grant of judicial authority.\\nSimilarly, as a statutory matter, respondent relies heavily on MCL 722.127 of the childcare organizations act, MCL 722.111 et seq. The childcare organizations act concerns the care of children in childcare organizations, including childcare institutions, child-placing agencies, children's camps, nursery schools, daycare centers, foster homes, and group homes. See MCL 722.111. Under MCL 722.124a(l),\\n[a] probate court[ ] a child placing agency, or the [DHHS] may consent to routine, nonsurgical medical care, or emergency medical and surgical treatment of a minor child placed in out-of-home care pursuant [MCL 400.1 to MCL 400.121 and MCL 710.21 to MCL 712A.28] or this act. If the minor child is placed in a child care organization, then the probate court, the child placing agency, or the [DHHS] making the placement shall execute a written instrument investing that organization with authority to consent to emergency medical and surgical treatment of the child. The [DHHS] may also execute a written instrument investing a child care organization with authority to consent to routine, nonsurgical medical care of the child. If the minor child is placed in a child care institution, the probate court, the child placing agency, or the [DHHS] making the placement shall in addition execute a written instrument investing that institution with authority to consent to the routine, nonsurgical medical care of the child.\\n\\\"By its language, this statute applies to children 'placed in out-of-home care' pursuant to a variety of statutes concerning child welfare, adoption, and protection, including protective proceedings under the Juvenile Code.\\\" AMB, 248 Mich App at 178 (citation omitted). This provision is more general than the statutes relating to the court's authority to enter a dispositional order under the juvenile code in the sense that, unlike a court's authority to enter orders during the dispositional phase of child protective proceedings, MCL 722.124a(l) is not \\\"related to any particular phase in any of the varied child welfare proceedings to which it applies.\\\" Id. at 178-179. Rather, the court's authority to enter treatment under this statute \\\"pri marily depends on whether the child has been 'placed in out-of-home care.' \\\" Id. at 179.\\nAside from this provision authorizing the family court, a child-placing agency, or the DHHS to consent to a child's treatment when the child is placed in out-of-home care, the childcare organizations act states that the DHHS \\\"is responsible for the development of rules for the care and protection of children in organizations covered by this act. . . .\\\" MCL 722.112(1). In addition, MCL 722.127 of the childcare organizations act protects a parent's ability to object to medical immunization on religious grounds. It states, \\\"Nothing in the rules adopted pursuant to this act shall authorize or require medical examination, immunization, or treatment for any child whose parent objects thereto on religious grounds.\\\" MCL 722.127.\\nRespondent argues that MCL 722.127 applies to children placed in out-of-home care and it thus affords her the ongoing right to prevent the vaccination of her children. Assuming that MCL 722.127 functions as a limit on judicial authority under MCL 722.124a, the obvious flaw in respondent's argument is that MCL 722.127 plainly applies in the context of \\\"this act,\\\" and \\\"this act\\\" is the childcare organizations act, not the juvenile code. As discussed, the juvenile code contains no provision limiting the court's broad authority to make medical decisions in the face of a parental objection to vaccinations, and it is not our role to create such an exception in the juvenile code.\\nMoreover, to the extent that MCL 722.124a covers the same subject matter as provisions in the juvenile code and there is an arguable conflict between the limitations in MCL 722.127 and a court's broader authority under the juvenile code, the juvenile code prevails as the more specific grant of authority. See Detroit Pub Sch v Conn, 308 Mich App 234, 251; 863 NW2d 373 (2014); In re Harper, 302 Mich App 349, 358; 839 NW2d 44 (2013). That is, the juvenile code and MCL 722.124a of the childcare organizations act may overlap in situations, such as this one, in which a child has been placed in out-of-home care following an adjudication of parental unfitness. In those cases, the court could potentially rely on either MCL 722.124a or MCL 712A.18(1)(f) when considering the medical needs of the child. However, MCL 712A.18(1)(f) is a more specific provision insofar as it applies to the court's authority to enter dispositional orders, while MCL 722.124a applies whenever a child is placed in out-of-home care without regard to any particular phase of any of the various child welfare proceedings to which it applies. See AMB, 248 Mich App at 178-179. As the more specific provision governing the court's authority to order medical care after a parent has been adjudicated unfit during child protective proceedings, MCL 712A.18(l)(f) prevails over the court's more general authority as set forth in MCL 722.124a. See Detroit Pub Sch, 308 Mich App at 251; Harper, 302 Mich App at 358. Because the juvenile code contains no vaccination-related limitations on the trial court's broad authority to enter dispositional orders for the welfare of the children and society, the court acted within its statutory authority under MCL 712A.18(1)(f) when entering the order in this case.\\nFinally, we note that respondent's reliance on Hunter is misplaced. Hunter involved a child custody dispute between a birth mother and the children's paternal aunt and uncle, who had provided the children with an established custodial environment during a period when the mother was incarcerated and addicted to crack cocaine. Hunter, 484 Mich at 252. The trial court concluded that the mother was an unfit parent and ultimately awarded custody to the aunt and uncle, reasoning that they had an established custodial environment and the children's best interests were served by remaining in that environment. Id. at 253-256. On appeal, the Supreme Court considered provisions of the Child Custody Act, MCL 722.21 et seq., and, in particular, the interplay between the presumption in favor of parental custody set forth in MCL 722.25(1) and the presumption in favor of an established custodial environment in MCL 722.27(1)(c). Hunter, 484 Mich at 257-259. The Supreme Court concluded that the parental presumption prevails over the presumption in favor of an established custodial environment. Id. at 265-266, 273. In so holding, the Court expressly rejected the proposition that the statutory presumption in favor of natural parents applies only to fit parents. Id. at 271. The Court reasoned that MCL 722.25(1) did not mandate a fitness determination for the presumption to apply and thus the presumption contained in this provision applies to all natural parents, not merely fit parents. Id. at 270-272.\\nRespondent now argues on appeal that Hunter supports the proposition that her right to object to the vaccination of her children does not depend on whether she is a fit or unfit parent because the statutory-provisions on which she relies contain no references to \\\"fit\\\" parents. Contrary to respondent's argument, Hunter does not support her position, and it does not affect the rights of parents adjudicated as unfit in child protective proceedings. Rather, by its express terms, Hunter distinguished custody proceedings from other proceedings involving parental rights and made plain that Hunter's application was limited to cases involving the Child Custody Act. The Court explained:\\n(1) This case deals with custody actions initiated under the [Child Custody Act] involving both the parental presumption in MCL 722.25(1) and the established custodial environment presumption in MCL 722.27(l)(c). This opinion should not be read to extend beyond [Child Custody Act] cases that involve conflicting presumptions or to cases that involve parental rights generally but are outside the scope of the [Child Custody Act].\\n(2) This opinion does not create any new rights for parents. The United States Supreme Court decisions regarding the constitutional rights of parents previously discussed in this opinion provide guidance that informs our analysis. This opinion does not magically grant parents additional rights or a constitutional presumption in their favor. It does not grant unfit parents constitutional rights to their children other than due process rights. [Hunter, 484 Mich at 276.]\\nTherefore, Hunter does not apply in this case because the present case does not involve the Child Custody Act or the application of the parental presumption found in MCL 722.25(1). Instead, the proceedings are child protective proceedings under the juvenile code, which, unlike the presumption found in MCL 722.25(1), fully contemplates a trial court's assessment of parental fitness during the adjudicative phase, MCL 712A.2(b); Sanders, 495 Mich at 405, and expressly authorizes the court to order medical care for a child within its jurisdiction, after a finding of parental unfitness, during the dispositional phase, MCL 712A.18(1)(f). Quite simply, Hunter is inapplicable in the context of the child protective proceedings at hand.\\nIn sum, respondent's reliance on MCL 722.127 and the provisions of the Public Health Code is misplaced. After her adjudication as an unfit parent, respondent lost, at least temporarily, the right to make immunization decisions for her children. That responsibility now rests with the trial court, and the trial court did not exceed its authority by ordering vaccination of the children over respondent's objections given that the facts proved and ascertained demonstrate that vaccination is appropriate for the welfare of the children and society. MCL 712A.18(l)(f).\\nAffirmed.\\nSaad, P.J., and SAWYER, J., concurred with HOEKSTRA, J.\\nRespondent's husband also initially objected to vaccination of his children on religious grounds, but he did not participate in the eviden-tiary hearing and he is not a party to this appeal.\\nIn re Deng Minors, unpublished order of the Court of Appeals, entered October 23, 2015 (Docket No. 328826).\\nWhile the trial court more generally considered the right to object to childhood vaccinations on religious grounds and concluded that Free Exercise Clause challenges cannot be maintained against physician-recommended vaccines, even by fit parents, we find it unnecessary to decide this broader constitutional question and instead limit our holding to parents who have been adjudicated as unfit in the course of child protective proceedings. See generally Booth Newspapers, Inc v Univ of Mich Bd of Regents, 444 Mich 211, 234; 507 NW2d 422 (1993) (\\\"[T]here exists a general presumption by this Court that we will not reach constitutional issues that are not necessary to resolve a case.\\\").\\nRespondent does not challenge the trial court's factual findings and, on the basis of the evidence presented at the evidentiary hearing, we see nothing clearly erroneous in the trial court's conclusion that vaccination of the children served their welfare and that of society.\\nThe statute refers to the former Department of Community Health (DCH). See MCL 333.5456(1). However, the DCH merged with the Department of Human Services (DHS) and is now known as the DHHS. Ketchum Estate v Dep't of Health & Human Servs, 314 Mich App 485, 488 n 1; 887 NW2d 226 (2016), citing Executive Order No. 2015-4. The authority and responsibilities of the DCH and the DHS were transferred to the DHHS. See MCL 400.227.\\nThe authority of the probate court under this section is now exercised by the family division of the circuit court. MCL 600.1009; MCL 600.1021.\\nThe statute refers to the DHS. MCL 722.112. But as noted in note 5 of this opinion, the DHS has merged with the DCH to become the DHHS.\\nWe note that MCL 722.127 applies to \\\"the rules adopted pursuant to this act,\\\" and \\\"the rules\\\" are developed by DHHS pursuant to MCL 722.112(1). (Emphasis added.) See, e.g., Mich Admin Code, R 400.12413(l)(d). Given that the DHHS, and not the family court, develops rules under the childcare organizations act, it is questionable whether MCL 722.127 functions as a limitation on the court's authority to consent to medical care under MCL 722.124a.\"}"

mich/12555137.json

@@ -0,0 +1 @@
+"{\"id\": \"12555137\", \"name\": \"PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ray W. COLE, Defendant-Appellant.\", \"name_abbreviation\": \"People v. Cole\", \"decision_date\": \"2018-04-03\", \"docket_number\": \"SC: 156242; COA: 332258\", \"first_page\": \"245\", \"last_page\": \"245\", \"citations\": \"909 N.W.2d 245\", \"volume\": \"909\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-27T21:03:12.209792+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"PEOPLE of the State of Michigan, Plaintiff-Appellee,\\nv.\\nRay W. COLE, Defendant-Appellant.\", \"head_matter\": \"PEOPLE of the State of Michigan, Plaintiff-Appellee,\\nv.\\nRay W. COLE, Defendant-Appellant.\\nSC: 156242\\nCOA: 332258\\nSupreme Court of Michigan.\\nApril 3, 2018\\nOrder\", \"word_count\": \"96\", \"char_count\": \"560\", \"text\": \"On order of the Court, the application for leave to appeal the June 15, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.\\nI, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.\"}"

mich/12558052.json

@@ -0,0 +1 @@
+"{\"id\": \"12558052\", \"name\": \"PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Matthew Donald GILLIES, Defendant-Appellant.\", \"name_abbreviation\": \"People v. Gillies\", \"decision_date\": \"2018-10-02\", \"docket_number\": \"SC: 157820; COA: 342182\", \"first_page\": \"667\", \"last_page\": \"667\", \"citations\": \"917 N.W.2d 667\", \"volume\": \"917\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-27T21:03:22.212241+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"PEOPLE of the State of Michigan, Plaintiff-Appellee,\\nv.\\nMatthew Donald GILLIES, Defendant-Appellant.\", \"head_matter\": \"PEOPLE of the State of Michigan, Plaintiff-Appellee,\\nv.\\nMatthew Donald GILLIES, Defendant-Appellant.\\nSC: 157820\\nCOA: 342182\\nSupreme Court of Michigan.\\nOctober 2, 2018\\nOrder\", \"word_count\": \"105\", \"char_count\": \"616\", \"text\": \"On order of the Court, the application for leave to appeal the March 28, 2018 order of the Court of Appeals is considered and, it appearing to this Court that the case of People v. Carter (Docket No. 156606) is pending on appeal before this Court and that the decision in that case may resolve an issue raised in the present application for leave to appeal, we ORDER that the application be held in ABEYANCE pending the decision in that case.\"}"

mich/12559208.json

@@ -0,0 +1 @@
+"{\"id\": \"12559208\", \"name\": \"GREGORY REED AND ASSOCIATES, P.C., Plaintiff-Appellant, v. Elaine STEELE, Personal Representative of the Estate of Rosa Louise Parks, Deceased, Defendant-Appellee.\", \"name_abbreviation\": \"Gregory Reed & Assocs., P.C. v. Steele\", \"decision_date\": \"2018-12-04\", \"docket_number\": \"SC: 157694; COA: 335939\", \"first_page\": \"794\", \"last_page\": \"794\", \"citations\": \"919 N.W.2d 794\", \"volume\": \"919\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-27T21:03:25.798475+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"GREGORY REED AND ASSOCIATES, P.C., Plaintiff-Appellant,\\nv.\\nElaine STEELE, Personal Representative of the Estate of Rosa Louise Parks, Deceased, Defendant-Appellee.\", \"head_matter\": \"GREGORY REED AND ASSOCIATES, P.C., Plaintiff-Appellant,\\nv.\\nElaine STEELE, Personal Representative of the Estate of Rosa Louise Parks, Deceased, Defendant-Appellee.\\nSC: 157694\\nCOA: 335939\\nSupreme Court of Michigan.\\nDecember 4, 2018\\nOrder\", \"word_count\": \"74\", \"char_count\": \"473\", \"text\": \"On order of the Court, the application for leave to appeal the March 20, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.\"}"

mich/12560406.json

@@ -0,0 +1 @@
+"{\"id\": \"12560406\", \"name\": \"PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Allen SNYDER, Defendant-Appellant.\", \"name_abbreviation\": \"People v. Snyder\", \"decision_date\": \"2019-02-22\", \"docket_number\": \"SC: 153696; COA: 325449\", \"first_page\": \"613\", \"last_page\": \"613\", \"citations\": \"922 N.W.2d 613\", \"volume\": \"922\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-27T21:03:31.032699+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"PEOPLE of the State of Michigan, Plaintiff-Appellee,\\nv.\\nDavid Allen SNYDER, Defendant-Appellant.\", \"head_matter\": \"PEOPLE of the State of Michigan, Plaintiff-Appellee,\\nv.\\nDavid Allen SNYDER, Defendant-Appellant.\\nSC: 153696\\nCOA: 325449\\nSupreme Court of Michigan.\\nFebruary 22, 2019\\nOrder\", \"word_count\": \"63\", \"char_count\": \"396\", \"text\": \"On order of the Chief Justice, the motion of the Criminal Defense Attorneys of Michigan to extend the time for filing a brief amicus curiae is GRANTED. The amicus brief submitted on February 15, 2019, is accepted for filing.\"}"

mich/12561494.json

@@ -0,0 +1 @@
+"{\"id\": \"12561494\", \"name\": \"AUTO-OWNERS INSURANCE COMPANY, Home-Owners Insurance Company, and Caleb Casanova, Plaintiffs-Appellees, v. COMPASS HEALTHCARE PLC doing business as Compass Health, and Lansing Neurosurgery, Defendants-Appellants.\", \"name_abbreviation\": \"Auto-Owners Ins. Co. v. Compass Healthcare PLC Doing Bus.\", \"decision_date\": \"2019-04-17\", \"docket_number\": \"SC: 159038; COA: 339799\", \"first_page\": \"202\", \"last_page\": \"202\", \"citations\": \"925 N.W.2d 202\", \"volume\": \"925\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-27T21:03:32.617013+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"AUTO-OWNERS INSURANCE COMPANY, Home-Owners Insurance Company, and Caleb Casanova, Plaintiffs-Appellees,\\nv.\\nCOMPASS HEALTHCARE PLC doing business as Compass Health, and Lansing Neurosurgery, Defendants-Appellants.\", \"head_matter\": \"AUTO-OWNERS INSURANCE COMPANY, Home-Owners Insurance Company, and Caleb Casanova, Plaintiffs-Appellees,\\nv.\\nCOMPASS HEALTHCARE PLC doing business as Compass Health, and Lansing Neurosurgery, Defendants-Appellants.\\nSC: 159038\\nCOA: 339799\\nSupreme Court of Michigan.\\nApril 17, 2019\\nOrder\", \"word_count\": \"85\", \"char_count\": \"562\", \"text\": \"On order of the Chief Justice, the motion of the Coalition Protecting Auto No-Fault (CPAN) to participate as amicus curiae and to file a brief amicus curiae is GRANTED. An amicus brief from CPAN will be accepted for filing if submitted within 21 days of the date of this order.\"}"

mich/12561738.json

@@ -0,0 +1 @@
+"{\"id\": \"12561738\", \"name\": \"PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Christopher MANNION, Defendant-Appellant.\", \"name_abbreviation\": \"People v. Mannion\", \"decision_date\": \"2019-04-30\", \"docket_number\": \"SC: 158093; COA: 342768\", \"first_page\": \"849\", \"last_page\": \"849\", \"citations\": \"925 N.W.2d 849\", \"volume\": \"925\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-27T21:03:32.617013+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"PEOPLE of the State of Michigan, Plaintiff-Appellee,\\nv.\\nJohn Christopher MANNION, Defendant-Appellant.\", \"head_matter\": \"PEOPLE of the State of Michigan, Plaintiff-Appellee,\\nv.\\nJohn Christopher MANNION, Defendant-Appellant.\\nSC: 158093\\nCOA: 342768\\nSupreme Court of Michigan.\\nApril 30, 2019\\nOrder\", \"word_count\": \"62\", \"char_count\": \"400\", \"text\": \"On order of the Court, the motion for reconsideration of this Court's December 4, 2018 order is considered, and it is DENIED, because we are not persuaded that reconsideration of our previous order is warranted. MCR 7.311(G).\"}"

mich/12562457.json

@@ -0,0 +1 @@
+"{\"id\": \"12562457\", \"name\": \"Daryl L. ZIMMER, Plaintiff, v. ATTORNEY GRIEVANCE COMMISSION, Defendant.\", \"name_abbreviation\": \"Zimmer v. Attorney Grievance Comm'n\", \"decision_date\": \"2019-05-28\", \"docket_number\": \"SC: 159143\", \"first_page\": \"250\", \"last_page\": \"251\", \"citations\": \"927 N.W.2d 250\", \"volume\": \"927\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-27T21:03:36.873018+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"Daryl L. ZIMMER, Plaintiff,\\nv.\\nATTORNEY GRIEVANCE COMMISSION, Defendant.\", \"head_matter\": \"Daryl L. ZIMMER, Plaintiff,\\nv.\\nATTORNEY GRIEVANCE COMMISSION, Defendant.\\nSC: 159143\\nSupreme Court of Michigan.\\nMay 28, 2019\\nOrder\", \"word_count\": \"73\", \"char_count\": \"459\", \"text\": \"On order of the Court, the complaint for superintending control is considered, and relief is DENIED, because the Court is not persuaded that it should grant the requested relief. The motion to appoint counsel is DENIED.\\nCavanagh, J., did not participate due to her prior service as a member of the Attorney Grievance Commission.\"}"

mich/12563769.json

@@ -0,0 +1 @@
+"{\"id\": \"12563769\", \"name\": \"PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Shawn Loveto CAMERON, Jr., Defendant-Appellant.\", \"name_abbreviation\": \"People v. Cameron\", \"decision_date\": \"2019-07-10\", \"docket_number\": \"SC: 155849; COA: 330876\", \"first_page\": \"785\", \"last_page\": \"787\", \"citations\": \"929 N.W.2d 785\", \"volume\": \"929\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-27T21:03:42.222016+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"PEOPLE of the State of Michigan, Plaintiff-Appellee,\\nv.\\nShawn Loveto CAMERON, Jr., Defendant-Appellant.\", \"head_matter\": \"PEOPLE of the State of Michigan, Plaintiff-Appellee,\\nv.\\nShawn Loveto CAMERON, Jr., Defendant-Appellant.\\nSC: 155849\\nCOA: 330876\\nSupreme Court of Michigan.\\nJuly 10, 2019\\nOrder\", \"word_count\": \"722\", \"char_count\": \"4557\", \"text\": \"On November 19, 2018, the Court heard oral argument on the application for leave to appeal the April 4, 2017 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.\\nMcCormack, C.J. (concurring.)\\nI concur in the Court's order denying leave to appeal because I agree that MCL 769.1k(1)(b)(iii ) distinctly states a tax and that the appellant has not established that the statute lacks an intelligible principle or violates the nondelegation doctrine. Even so, I write separately because it's unclear to me that the statute does not prevent the judicial branch from \\\"accomplishing its constitutionally assigned functions.\\\" Nixon v. Administrator of Gen. Servs. , 433 U.S. 425, 443, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977).\\nMy concerns about the constitutionality of MCL 769.1k(1)(b)(iii ) are underscored by the troubling letters submitted by amicus curiae Michigan District Judges Association (MDJA). They describe the pressures they face as district judges to ensure their courts are well-funded. For example, one city threatened to evict a district court from its courthouse because it was unable to generate enough revenue. Another judge noted that the same city suggested that judges eliminate personnel if they could not generate enough revenue to cover the operational costs. A third judge recounted that his local funding unit referred to the district court as \\\"the cash cow of our local government.\\\"\\nThe MDJA contends that MCL 769.1k(b)(iii ) creates a conflict of interest by shifting the burden of court funding onto the courts themselves. In the MDJA's telling, MCL 769.1k(1)(b)(iii ) incentivizes courts to convict as many defendants as possible. The \\\"constant pressure to balance the court's budgets could have a subconscious impact on even the most righteous judge.\\\" MDJA Brief, p. 16. They believe that the statute thus violates the Fourteenth Amendment, because the \\\"possible temptation,\\\" Tumey v. Ohio , 273 U.S. 510, 532, 47 S.Ct. 437, 71 L.Ed. 749 (1927), of raising more revenue by increasing the number of convictions infringes defendants' due-process rights.\\nThe MDJA could be right. The United States Supreme Court has consistently overturned convictions where the presiding judge had any form of pecuniary interest in a defendant's conviction. E.g., Tumey , 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (in which a \\\"Liquor Court\\\" judge was also the mayor, and his judge/mayor paycheck came directly from court costs for convicted defendants); Ward v. Village of Monroeville , 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972) (overturning traffic convictions because a substantial portion of village income came from fines, fees, and costs imposed against defendants by the village mayor in judicial capacity; mayor's executive responsibilities for village presented a \\\"possible temptation\\\" when adjudicating traffic offenses). No matter how neutral and detached a judge may be, the burden of taxing criminal defendants to finance the operations of his court, coupled with the intense pressures from local funding units (and perhaps even from the electorate), could create at least the appearance of impropriety. Assigning judges to play tax collector erodes confidence in the judiciary and may seriously jeopardize a defendant's right to a neutral and detached magistrate.\\nThese issues have not been squarely presented in this case, and I am not comfortable answering them today and without a fully developed record. But I expect we will see them brought directly to us before long.\\nI recognize that denying leave to appeal in this case will allow our current system of trial court funding in Michigan to limp forward-at least until MCL 769.1k(1)(b)(iii ) sunsets next year. Yet our coordinate branches have recognized the long-simmering problems. The interim report of the Trial Court Funding Commission shows a potential way forward that promises to address these (and other) concerns. I urge the Legislature to take seriously the recommendations of the Commission, before the pressure placed on local courts causes the system to boil over.\\nBernstein, J., joins the statement of McCormack, C.J.\\nCavanagh, J., did not participate in the disposition of this case because the Court considered it before she assumed office.\"}"

mich/1341485.json

@@ -0,0 +1 @@
+"{\"id\": \"1341485\", \"name\": \"Detroit & Milwaukee Railroad Co. v. James W. Brown\", \"name_abbreviation\": \"Detroit & Milwaukee Railroad v. Brown\", \"decision_date\": \"1877-10-30\", \"docket_number\": \"\", \"first_page\": \"533\", \"last_page\": \"535\", \"citations\": \"37 Mich. 533\", \"volume\": \"37\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T18:28:55.054064+00:00\", \"provenance\": \"CAP\", \"judges\": \"Cooley, O. J., and Graves, J., concurred.\", \"parties\": \"Detroit & Milwaukee Railroad Co. v. James W. Brown.\", \"head_matter\": \"Detroit & Milwaukee Railroad Co. v. James W. Brown.\\nNotice of Occupancy \\u2014 Injunction to Restrain Proceedings in Ejectment.\\nOccupancy of premises by a railroad in course of construction is constructive notice of the company\\u2019s rights therein.\\nA railroad company contracted for certain lands, and under the conditions of the contract proceeded to lay its track across . them, receiving at length a deed from the only owner of whose rights it had notice. Meanwhile the same land had been set oif by deed of partition to a party who held some unrecorded claim to an undivided interest in the premises, and this party afterwards quit-claimed the land by a deed referring to the company\\u2019s occupancy. Held that an injunction would lie to restrain proceedings in ejectment brought against the company by the holder of the quit-claim.\\nAppeal from Kent.\\nSubmitted Oct. 18.\\nDecided Oct. 30.\\nInjunction to restrain suit in ejectment. Tbe facts are in the opinion.\\nThomas B. Church and G. V. N. Lothrop for complainant and appellee.\\nThe actual possession of land by a railroad company, and the formal survey and staking out of a line of road upon it, and clearing and grubbing it, constitute tbe most open notice possible of tbe company\\u2019s claims to tbe premises, Ellicott v. Pearl, 10 Pet., 442; Ewing v. Burnet, 11 Pet., 52; Longworthy v. Myers, 4 Ia., 18. As to estoppel from \\u201c acts, silence, or other conduct,\\u201d see Truesdail v. Ward, 24 Mich., 134, and cases cited; Niven v. Belknap, 2 Johns., 573; Chapman v. Chapman, 59 Penn. St., 214; Brooks v. Curtis, 4 Lans., 283; Gregg v. Von Phul, 1 Wall., 274; Thayer v. Bacon, 3 Allen, 163; Lefevre v. Lefevre, 4 S. & R., 243.\\nJ. W. de O. G. Ransom for defendant and appellant.\\nComplainant must show that defendant\\u2019s grantor had actual notice of its equities before be acquired title, or that there were facts from which actual notice might be inferred, Converse v. Blumrich, 14 Mich., 109. Constructive possession is not enough to notify a subsequent purchaser of one\\u2019s equities in the premises, Brown v. Volkening, 64 N. Y., 76; and merely locating and marking a railroad line cannot establish constructive notice of an adverse claim in the company, Cook v. Travis, 20 N. Y., 402; Chesterman v. Gardner, 5 Johns. Ch., 29.\", \"word_count\": \"851\", \"char_count\": \"4944\", \"text\": \"Campbell, J.\\nThis bill was filed to restrain Brown from asserting title by action of ejectment for so' much of a lot of land purchased by him in Grand Rapids as is occupied by the railroad of complainants.\\nBrown bought by deeds which expressly refer to the occupancy by the railroad. His purchase is therefore subject to whatever rights they had.\\nThe ease presents no questions of law and depends on a very simple state of facts.\\nIn 1853 a contract was made in writing whereby Daniel W. Coit, the owner of several government subdivisions including the laud in question, agreed with Harvey P. Yale, who was acting partly for himself and partly as a director of the Oakland and Ottawa Railroad Company, to sell to Yale an undivided interest in certain of these lands, one of the express conditions being that the railroad should pass through the lands, and a depot be built within certain specified distances. The railroad was located and the line marked and cleared, and the place of the depot was fixed. All matters having been settled the contract was as to the rest carried out by deed to an assignee of Yale in December, 1855. The previous month a partition deed was made between Ooit and one Curtis (who liad some unrecorded claim to an undivided interest in the property), and the property covered by the road was nominally within his share of the division. He conveyed to Brown in 1871, by warranty as to all but the railroad land, and by quit-claim as to that.\\nWhen Coit and Curtis made the partition deed the road had been surveyed, marked out, and clearly designated by clearing and otherwise.\\nBy statutes which are public laws the Oakland and Ottawa Railroad was authorized to become merged in the Detroit and Milwaukee Railway, whose corporate existence is admitted in the answer as a corporation cle facto in possession of the property, and its subsequent reorganization is also admitted. No further evidence is needed until the presumption of regularity is overthrown, \\u2014 even if it could be assailed by strangers collaterally.\\nAs the road was laid out in accordance with Ooit's requirement, and its location was one of the chief conditions of [his contract, we do not think there is any ground for claiming that the company was to have no rights without a further purchase. And as Curtis took his deed with constructive notice of this right, by open and evident occupancy by a road in course of construction, and his grantee took with plainer notice and actual knowledge of the occupancy, the title of Brown cannot prevail, and the bill is well founded.\\nThe decree must be affirmed with costs.\\nCooley, O. J., and Graves, J., concurred.\\nMarston, J., did not sit in this case.\"}"

mich/1343778.json

@@ -0,0 +1 @@
+"{\"id\": \"1343778\", \"name\": \"Robert Yelverton v. Mathew Steele\", \"name_abbreviation\": \"Yelverton v. Steele\", \"decision_date\": \"1877-01-23\", \"docket_number\": \"\", \"first_page\": \"62\", \"last_page\": \"64\", \"citations\": \"36 Mich. 62\", \"volume\": \"36\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T20:59:21.018735+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other Justices concurred.\", \"parties\": \"Robert Yelverton v. Mathew Steele.\", \"head_matter\": \"Robert Yelverton v. Mathew Steele.\\nTaxation: Supervisor's certificate: Review: Date: Time: Presumptions. Under a statute allowing three days for review of the assessment roll, where the sessions are not required, to last later in the day than five o\\u2019clock in the afternoon, the fact that the supervisor\\u2019s certificate to the roll is dated on the last review day, does not necessarily show that it was premature, for it would be competent for him to attach his certificate on that day and after the hour specified; and all reasonable pre. sumptions must be indulged in favor of official regularity.\\nTaxation: Equalization of valuation: Slate tax. The amount of state and county taxes levied in the several townships depending on the equalization of valuation required by the statute to be made by the board of supervisors, it is as important, as between the several townships, that this action should be taken, as is a separate valuation of estates, as between individuals; and failure to comply with this requirement invalidates the tax.\\nRecords: Informal action not recorded. The statute requiring the action taken by the supervisors in this regard to be entered upon the records, informal action which is not recorded will not answer the requirement; conjecture is inadmissible where the statute requires a record.\\nTaxation: Slate tax: Amount: Apportionment: Basis of estimate. An objection, that the tax on the face of the roll appears to be excessive, is not considered, in the absence of competent evidence what state tax was apportioned to the township, there being no basis for an estimate.\\nHeard January 19.\\nDecided January 23.\\nError to Ingham Circuit.\\nSpaulding & Qranson, for plaintiff in error.\\nLuden Heed, for defendant in error.\", \"word_count\": \"784\", \"char_count\": \"4654\", \"text\": \"Cooley, Ch. J:\\nThe validity of a tax-title for the year 1864 is the question at issue in this suit. The tax-sale was made for the state tax alone. Three objections are made to the title.\\nI. That the supervisor's certificate to the assessment roll was premature; it being dated on the third day allowed by law for reviewing the assessment roll and making objections thereto. \\u2014Laws of 1858, p. 178. The argument is, that being made on the third day, it did not allow the full three days for objections which the statute gives. The case of Westfall v. Preston, 49 N. Y., 349, affords some support to this objection, but we think the statutes differ so much as to render that case inapplicable. TJnder the New York statute it would seem that one whole day was given for the review; under our statute, three are allowed, but only until five o'clock P. M., after which it would seem entirely competent for the supervisor to attach his certificate. We must presume, in favor of official regularity, that he did not attach it prematurely.\\nII. That there was no lawful equalization of the several township assessment rolls by the board of supervisors.\\nThe statute required the board of supervisors, if they should deem the valuation of real estate in the several townships to be relatively unequal, to \\\"equalize the same by adding or deducting from the valuation of the taxable property in the township or townships such an amount as in their judgment will produce relatively an equal and uniform valuation of the real estate in the county, and the amount added to or deducted from the valuation in each township shall be entered upon the records.\\\" As the amount of state and county taxes levied in the several townships will depend on this equalization, it is as important, as between the several townships, as would be a .separate valuation of estates, as between individuals. In this case the statute was not complied with. No such record as the statute requires was made, and no formal action whatever appears to have been taken by the supervisors to equalize the rolls at all. There is, indeed, a column of. figures where under the head! of \\\"equalized valuation\\\" the sum of one hundred and forty-eight thousand dollars is set opposite the name of this town; but that this sum is the result of any action by the supervisors does not appear, and conjecture is inadmissible where the statute requires a record. The defect is fatal.\\nIII. A further objection was made, that the tax on the-face of the roll appears to have been excessive. This we-shall not consider, as there was no competent evidence showing what state tax was apportioned to this township, and consequently no basis for an estimate.\\nThe defendant appears to have claimed some rights by-possession, but the facts on which the rights depend are not found.\\nThe judgment must be reversed, with costs, and a new-trial ordered.\\nThe other Justices concurred.\"}"

mich/1346580.json

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+"{\"id\": \"1346580\", \"name\": \"James G. Wright v. Samuel V. Irwin\", \"name_abbreviation\": \"Wright v. Irwin\", \"decision_date\": \"1875-11-02\", \"docket_number\": \"\", \"first_page\": \"32\", \"last_page\": \"37\", \"citations\": \"33 Mich. 32\", \"volume\": \"33\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T17:45:57.621451+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other Justices concurred.\", \"parties\": \"James G. Wright v. Samuel V. Irwin.\", \"head_matter\": \"James G. Wright v. Samuel V. Irwin.\\nPromissory noies. The following instrument is held to he a promissory note, viz.: \\u201cPor value received I promise to pay to the Northern Central Michigan Railroad Company or bearer the sum of fifteen hundred dollars, to he paid twenty per cent, a month from the first day of July, 1871, towards the right of way ancl grading said railroad from Jonesville to the city of Lansing.\\u201d\\nPromissory notes: Evidence: Consideration: Bona fide holder. The exclusion of evidence that the promissory note sued upon was obtained with, out consideration and by false inducements and fraudulent representations is not error where the plaintiff is presumptively a bona fide holder, and before any evidence has been introduced to impeach his position as such.\\nEvidence. The exclusion of an irrelevant instrument between third parties is not error.\\nPromissory notes: Consideration: Misrepresentations. It having been made to appear that plaintiff was not a bona fide holder of the note sued upon, it was error to exclude evidence tendered to show that the only inducement for the giving of the note was the statement- to the maker by the director of the road to whom it was given, that the road would run through a named street and across his land, and that the depot would be located there, which statement was in point of fact not true.\\nHeard October 20.\\nDecided November 2.\\nError to Calhoun Circuit.\\nA. M. Quiver and Proton & Patterson, for plaintiff in error.\\nRienzi Loucl, for defendant in error.\", \"word_count\": \"1828\", \"char_count\": \"10409\", \"text\": \"Graves, Ch. J:\\nIrwin brought general assumpsit, and his ground of action was an instrument of the following tenor, dated Albion, June 19, 1871: \\\"For value received I promise to pay to the Northern Central Michigan Railroad Company or bearer the sum of fifteen hundred dollars, to be paid twenty per cent, a month from the first day of July, 1871, towards the right of way and grading said railroad from Jonesville to the city of Lansing. J. G. 'Wright.\\\"\\nThe general issue was pleaded, with notice of special matter, but no affidavit questioning the genuineness of the instrument was made.\\nThe cause was tried by jury and a verdict returned for Irwin. A bill of exceptions was settled at Wright's instance, and he brought error. At the trial Irwin produced the instrument declared on, and offered it in evidence, and the court admitted it against several objections. Tire only ground of objection which appears worthy of notice was, that the instrument was not a promissory note, and we are satisfied this was not tenable.\\nThat Wright executed and delivered the paper to the company was fully admitted by his failure to show any thing by affidavit to the contrary, \\u2014 Burson v. Huntington, 21 Mich., 415; Polhemus v. Savings Bank, 27 Mich., 44, and other cases; and the authorities are full to show that the writing is a promissory note. \\u2014 Edwards on Bills, ch. 3. It contains all the elements required, and the statement at the end, about right of way and grading, does not take away its legal quality as a promissory note.\\nWright, for an expressly admitted consideration, promised to pay the company or bearer a certain sum of money in definite instalments at specified times, and lie promised nothing else. He admits he delivered it to the company. There is no contingency, no alternative, no uncertainty. The passage superadded goes to explain how the party absolutely entitled to receive the money was expected to employ it; that is all, and it served in no manner to impair the right to exact the money promised at the times set for payment, as so much money payable by the provisions of a promissory note. \\u2014 Beardslee v. Horton, 3 Mich., 560; Knight v. Jones, 21 Mich., 161; Littlefield v. Hodge, 6 Mich., 326; Fairchild v. Ogdensburgh, Clayton & Rome R. R. Co., 15 N. Y., 337; Hodges v. Shuler, 22 N. Y., 114; Bull v. Sims, 23 N. Y., 570; Oatman v. Taylor, 29 N. Y., 649, 665; Cota v. Buck, 7 Met., 588 ; Wells v. Brigham, 6 Cush., 6; Taylor v. Curry, 109 Mass., 36; Protection Insurance Co. v. Bill, 31 Conn., 534; Holland v. Hatch., 15 Ohio St., 464.\\nThe case of Cook v. Satterlee, 6 Cow., 108, which was most relied on to support the objection, is not at all analogous. There W. F. and O. E. Clark drew a bill upon the Satterlees, and thereby requested them to pay four hundred dollars and take up a note for the amount which had been given by William and Henry B. Cook. By accejitance the Satterlees promised to do what was requested by the drawers, and the court considered that the undertaking amounted to a promise to pay four hundred dollars on the giving up of the note, and so was conditional; and, hence, as the court said, the instrument was not \\\"technically\\\" a bill of exchange.\\nWhether this view was right or wrong, it has no bearing here.\\nThere was no force in the objection to the question put to Stetson, when asked whether the note shown to him was that on a copy of which he had computed the interest.\\nWhen the plaintiff below rested, the' defendant proceeded to offer evidence for the purpose of showing, as he claimed,' that the note was obtained -without consideration and by false inducements and fraudulent representations made by one then acting on behalf of the company, and who treated for the note, and in fact received it when made.\\nOn objection by counsel for the plaintiff below this evidence was excluded. These rulings were certainly correct when they were made. Without stopping to consider whether the proof tendered, or. any part of it, would have been objectionable or not if the defendant had been in a situation at the time to advance the proposed defense as we understand it against Irwin, it is enough for the present purpose that he was not then in such a situation.\\nIrwin was presumptively a Iona ficle holder, and no evidence had then appeared to impeach his position as such and open the way to the defense. At a subsequent stage of the trial, and after these rulings, it was admitted for the purpose of the trial that Irwin took the note after it had fully matured from W. H. Brockway, who was then, and also at the 'time of the trial, a director of the company; that at the time of taking it Irwin was also a director and the president of the company, and that the note was an item of the assets retained by Brockway pursuant to a written instrument purporting to have been made by the company and Brockway under date of the 19th of August, 1871, or two months subsequent to the date of the note, and at which time Brockway was acting as one of the board of directors; that this instrument provided, amongst other things,' that Brockway, in consideration of the covenants and agreements to be kept and performed by him, should have as his own property all the notes and subscriptions then in any wise belonging to the company. Thereupon the plaintiff in error offered in evidence an instrument in writing, purporting-to have been executed between the company of the one part, by Mr. Brockway as their agent, and J. Condit Smith of the other part. This instrument bore date on the 8th day of J une, 1871, or eleven days prior to the execution and delivery of the note by Wright to the company. The admission of the paper was objected to, and the court excluded it. No explanation was given as to what was aimed at by its introduction, and as its relevancy was not apparent, the ruling was not irregular.\\nWright's counsel then offered evidence that the only inducement for his giving the note was Mr. Brockway's statement that the road would run through Center street in Albion, and across Wright's land, and that the depot would be located there, and that Wright could have sub-contracts for- construction.. This was rejected. The offer was not very precise and clear, but I am inclined to think it ought not to have been refused. The respective positions of Irwin and Brockway, their relations to the company, and their relations to each other through the company, had been shown. These and the other facts belonging to the case should be considered in connection with the proposal in question, and thus looking at the matter, the offer may be construed as importing a tender of evidence to show that the consideration -of the note consisted in benefits Wright might naturally expect, and did expect, from the final location of the road through Center street and across his land, and the location of the depot there; that Brockway being in a situation to know, and Wright not, the former assured Wright that the road and depot would be there, and hence gave Wright to understand that the sites of the road and depot were finally fixed and settled, and that Wright confided in Brockway's assurance, and was thereby caused to believe, and did believe, that it was settled and determined that the road would go through Center street and across his land, and that the depot would be there placed.\\nNow if Wright was brought to give the note by such ind\\u00facements, and Mr. Brockway was either aware that the road and depot would not be so placed, or had no good reason for believing that they would be, and in point of fact they were fixed elsewhere, it appears to me that it should be left to the jury to find that the note was obtained by fraudulent misrepresentations. \\u2014 Beebe v. Knapp, 28 Mich., 53; Bristol v. Braidwood, Ib., 191; Shaeffer v. Sleade, 7 Blackf., 178; Sawyer v. Prickett and wife, 19 Wall., 146.\\nContemplating the offer in this way, the gist of the representation proposed to be shown would not be matter of opinion, or promissory in character, but of the existence of a fact or circumstance sure to produce consequences which Wright was willing to assume, and did actually assume would be valuable to him. But the offer may be viewed in another aspect. The evidence proposed had, with other facts admitted to the jury, some tendency to show that, the company, through Mr. Brockway, their agent, obtained the note on the consideration and agreement that the road and depot were already definitely located so as to cross his land and make the depot there, and as the fact was not so, and the road and depot were made elsewhere, the note was without consideration.\\nOn the whole, it seems to me the evidence offered should have been submitted to the jury under proper instructions calling for their interpretation and application of it.\\nThe judgment is reversed, with costs, and a new trial ordered.\\nThe other Justices concurred.\"}"

mich/1409891.json

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+"{\"id\": \"1409891\", \"name\": \"Joseph O. Adams v. Auditor General\", \"name_abbreviation\": \"Adams v. Auditor General\", \"decision_date\": \"1880-04-28\", \"docket_number\": \"\", \"first_page\": \"453\", \"last_page\": \"454\", \"citations\": \"43 Mich. 453\", \"volume\": \"43\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T23:14:41.202194+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Joseph O. Adams v. Auditor General.\", \"head_matter\": \"Joseph O. Adams v. Auditor General.\\nBill to vacate assessments \\u2014 Defendants.\\nCounties and townships are necessary parties to a bill to vacate taxes assessed, where a decree would make it necessary to charge the taxes back against the county, or spread them upon the land of the township.\\nAppeal from Tuscola.\\nSubmitted and decided April 28.\\nInjunction to restrain enforcement of tax. Complainant appeals.\\nII. II. Hoyt for complainant.\\nAttorney General Otto Kirchner for defendant.\", \"word_count\": \"189\", \"char_count\": \"1138\", \"text\": \"Per Curiam.\\nComplainant sought to have certain taxes assessed against his lands declared void. As the result of such a decree would be to have such taxes charged bach by the Auditor General against the county in which the lands lie, and by the board of supervisors of such county ordered re-assessed upon the same lands, or spread upon the lands of the township, such municipalities are necessary parties, and no relief can be granted without giving them an opportunity to be heard.\\nThe appeal must be dismissed, and the record remanded, giving complainant leave to move the court below for leave to bring in such parties as he may be advised is necessary.\"}"

mich/1414136.json

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+"{\"id\": \"1414136\", \"name\": \"MANN v. SHUSTERIC ENTERPRISES, INC\", \"name_abbreviation\": \"Mann v. Shusteric Enterprises, Inc.\", \"decision_date\": \"2004-06-30\", \"docket_number\": \"Docket No. 120651\", \"first_page\": \"320\", \"last_page\": \"346\", \"citations\": \"470 Mich. 320\", \"volume\": \"470\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T21:22:20.717814+00:00\", \"provenance\": \"CAP\", \"judges\": \"Corrigan, C. J., and Taylor and Young, JJ., concurred with MARKMAN, J.\", \"parties\": \"MANN v SHUSTERIC ENTERPRISES, INC\", \"head_matter\": \"MANN v SHUSTERIC ENTERPRISES, INC\\nDocket No. 120651.\\nArgued October 15, 2003\\n(Calendar No. 8).\\nDecided June 30, 2004.\\nRoger Mann brought an action in the Wayne Circuit Court against Shusteric Enterprises, Inc., doing business as Speedboat Bar & Grill, a liquor licensee, and Badger Mutual Insurance Company for damages related to injuries sustained by the plaintiff when he slipped and fell in the icy and snow-covered parking lot of the bar after consuming alcoholic beverages in the bar. The circuit court, Sharon Tevis Finch, J., denied the plaintiffs motion for additur or a new trial after the jury had awarded the plaintiff damages reduced on the basis of fifty percent comparative negligence by the plaintiff. The Court of Appeals, Kelly, EJ., and White and Wilder, JJ., in an unpublished opinion per curiam, reversed the circuit court\\u2019s denial of plaintiffs motion for additur or a new trial. On rehearing, the same panel of the Court, in an unpublished opinion per curiam, affirmed the decision of the trial court (Docket No. 210920). The defendant liquor licensee appealed, arguing that a premises liability claim that is directly grounded in the consumption of alcohol is subject to the exclusive remedy provision of the dramshop act, MCL 436.1801(10).\\nIn an opinion by Justice Markman, joined by Chief Justice Corrigan, and Justices Taylor and Young, the Supreme Court held'.\\nThe plaintiffs suit is not barred by the exclusive remedy provision of the dramshop act if his suit is based on a claim that the plaintiffs injuries did not arise from the defendant unlawfully selling, giving, or furnishing liquor to the plaintiff.\\n1. The defendant\\u2019s knowledge of the plaintiffs intoxication is irrelevant in determining whether the defendant breached its duty to protect the plaintiff against the ice and snow in the defendant\\u2019s parking lot. The fact that the defendant knew that the plaintiff was intoxicated does not affect the duties that the defendant owed to the plaintiff-invitee. The fact that the plaintiff was visibly intoxicated does not diminish the standard of reasonable conduct by which the plaintiffs actions are judged.\\n2. In a premises liability suit, the fact-finder must consider the condition of the premises, not the condition of the injured party. A jury need decide only whether the dangerous condition in the defendant\\u2019s parking lot was open and obvious or, if so, whether there were special aspects that render even the open and obvious condition unreasonably dangerous to a reasonably prudent person.\\n3. M Civ JI 19.03, pertaining to the obligations of a premises possessor to warn of open and obvious dangers, sets forth an inaccurate statement of premises liability law in stating that a possessor must warn an invitee of an open and obvious danger if the possessor should expect that an invitee will not discover the danger or will not protect himself against it. Under Lugo v Ameritech Corp, Inc, 464 Mich 512 (2001), a premises possessor must protect an invitee against an open and obvious danger only if such danger contains special aspects that make it unreasonably dangerous.\\n4. M Civ JI 19.05, pertaining to the obligations of a premises possessor to diminish hazards arising from the accumulation of ice and snow, sets forth an incorrect instruction. Section 19.05 ignores Lugo\\u2019s \\u201cunreasonably dangerous\\u201d requirement by imposing an absolute duty on a premises possessor irrespective of whether the accumulation of snow and ice creates special aspects making such accumulation unreasonably dangerous.\\nChief Justice Corrigan, concurring, stated that the majority was correct that a premises owner has no duty to protect an invitee from open and obvious dangers on premises unless special aspects render the condition unreasonably dangerous. Lugo v Ameritech, 464 Mich 512 (2001). She did not consider the more difficult questions, whether plaintiffs cause of action is precluded by the dramshop act and whether Manuel v Weitzman, 386 Mich 157 (1971), should be overruled, because those issues were not presented in the circuit court.\\nJustice Cavanagh, joined by Justice Kelly, concurring in part and dissenting in part, stated that he concurred with the majority that the exclusivity provision of the dramshop act, MCL 436.2802(10), does not preclude the plaintiffs premises liability claim.\\nOn the bases of the Restatement of Torts, 2d, and Michigan law, M Civ JI 19.03 is an accurate instruction. A premises possessor is generally not required to protect an invitee from open and obvious dangers. But there are exceptions to this rule and the exceptions cannot be conveniently summarized by a special aspects analysis. The majority relies excessively on Lugo v Amer-itech, 464 Mich 512 (2001), for the premise that the special aspects analysis from that case is the only relevant method of analysis. Although a special aspects analysis is relevant for consideration in cases of this sort, it is not the only relevant inquiry.\\nM Civ JI 19.05 is similarly not in need of revision. Taken to a logical conclusion, today\\u2019s majority decision may imply that any accumulations of ice and snow are necessarily open and obvious dangers. The rule from Quinlivin v The Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244 (1975), that the duty of reasonable care requires that reasonable measures be taken within a reasonable time after an accumulation of ice and snow, is reflected in M Civ JI 19.05 and has been followed for nearly thirty years. The majority, in qualifying the jury instruction with the Lugo standard has added uncertainty to premises liability law.\\nJustice Weaver, concurring in part and dissenting in part, agrees with the vacation of the jury verdict in favor of the plaintiff, because on the facts of this case the licensee\\u2019s knowledge of plaintiffs intoxication is irrelevant with regard to whether the bar breached its common-law duty of care to plaintiff. The majority, by extending the \\u201cspecial aspects\\u201d rule from Lugo v Ameritech, 464 Mich 512 (2001), to cases involving the accumulation of ice and snow, without explanation overrules the decision in Quinlivan v The Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244 (1975), which held that premises possessors owe a duty to invitees to take reasonable measures within a reasonable time after an accumulation of ice and snow to diminish the hazard of injury to the invitees. Now, unless there are \\u201cspecial aspects\\u201d to an accumulation of snow and ice creating a risk of \\u201csevere harm,\\u201d premises possessors owe no duty to take reasonable measures within a reasonable time to protect invitees from the danger of snow and ice accumulations. The majority decision will create confusion in the law of premises liability because the majority does not explain why it has determined that certain snow and ice accumulations no longer require a premises possessor\\u2019s reasonable attention within a reasonable time and does not explain how the fact-finder is to distinguish between the differing types of snow and ice accumulations. Quinlivan should not be overruled without such explanation.\\nCourt of Appeals judgment reversed; jury verdict vacated; and case remanded for further proceedings.\\ni. Negligence - Premises Liability - Liquor Licensees - Dramshop Act.\\nThe exclusive remedy provision of the dramshop act does not preclude a premises liability action against a liquor licensee for injury caused by a dangerous condition on the licensee\\u2019s premises to an invitee who was served alcohol by the licensee where the injuries arose from something other than the defendant unlawfully selling, giving, or furnishing alcohol to the plaintiff. (MCL 436.1801[10]).\\n2. Negligence \\u2014 Premises Liability \\u2014 Liquor Licensees \\u2014 Open and Obvious Dangers.\\nWhether a liquor licensee, against whom a premises liability action has been brought by an invitee who was served alcohol by the licensee, has breached its duty to protect the invitee against a dangerous condition on the licensee\\u2019s premises requires a determination whether the dangerous condition was open and obvious, or whether there are special aspects that render even an open and obvious condition unreasonably dangerous to a reasonably prudent person; knowledge by the licensee of the invitee\\u2019s intoxication is irrelevant to that determination.\\nMartin N. Fealk, EC. (by Martin N. Fealk), and James D. Brittain, EC. (by James D. Brittain), for the plaintiff.\\nCheatham, Estes & Hollman, EC. (by Lee C. Estes) and (John E Jacobs, EC., by John E Jacobs, of counsel), for the defendant.\\nAmicus Curiae:\\nChasnis, Dogger & Grierson, EC. (by John A. Chas-nis), for Quick-Sav Food Stores, Ltd., and Quick-Tracker Management, Inc.\", \"word_count\": \"8593\", \"char_count\": \"53171\", \"text\": \"MARKMAN, J.\\nWe granted leave to appeal in this case to decide whether a plaintiff who suffers injury after slipping and falling in the parking lot of a bar where plaintiff has become visibly intoxicated may, notwithstanding the exclusivity provision of the dramshop act, MCL 436.1801(10), pursue a common-law premises liability cause of action against that bar. The Court of Appeals affirmed the jury's $226,000 verdict in favor of plaintiff, holding that the dramshop act did not preclude plaintiffs premises liability cause of action, and that the bar's knowledge of plaintiffs intoxication was relevant regarding whether the bar breached its duty to protect plaintiff against the ice and snow in its parking lot. Although we agree in part with the Court of Appeals and hold that the dramshop act does not preclude such a cause of action, we reject the holding by the Court of Appeals that the bar's knowledge of plaintiffs intoxication has any relevance. Lugo v Ameritech Corp, Inc, 464 Mich 512, 520; 629 NW2d 384 (2001). Accordingly, we reverse the decision of the Court of Appeals, vacate the jury verdict, and remand this case for further proceedings consistent with this opinion.\\nI. BACKGROUND\\nOn March 6,1996, during a blizzard, plaintiff entered defendant's bar and consumed nine alcoholic drinks in approximately three hours. After leaving the bar, plaintiff, who was visibly intoxicated and had a blood alcohol content of 0.25 percent, sustained injuries when he slipped and fell on ice and snow that had accumulated in defendant's parking lot during the blizzard. Accordingly, plaintiff filed a premises liability cause of action against defendant, claiming that defendant breached its duty of care by failing to warn plaintiff of the ice and snow in defendant's parking lot and failing to remove such ice and snow within a reasonable time after it had accumulated in defendant's parking lot.\\nOver defense objection to an instruction on M Civ JI 19.03, the trial court delivered both the \\\"Duty Of Possessor Of Land, Premises, Or Place Of Business To Invitee\\\" instruction and the \\\"Duty Of Possessor Of Land, Premises, Or Place Of Business To A Business Invitee Regarding Natural Accumulation Of Ice And Snow\\\" instruction. While finding plaintiff fifty percent comparatively negligent, the jury returned a $226,000 verdict in plaintiffs favor. Because plaintiff believed that the jury's failure to award noneconomic damages was against the great weight of the evidence, he filed a motion for additur or for a new trial, which motion the trial court denied.\\nDefendant appealed, raising the issues of instructional error and error in the calculation of damages. Plaintiff cross-appealed, contending that the trial court erred in denying his motion for additur or for a new trial. In its first opinion, the Court of Appeals reversed the decision of the trial court denying plaintiffs motion for additur or for a new trial. However, on defendant's motion for rehearing, the Court of Appeals affirmed the decision of the trial court in all respects.\\nDefendant sought leave to appeal in this Court, arguing that a premises liability cause of action that is alleged to be grounded in the consumption of alcohol is a dramshop action in another guise and, thus, because of the exclusivity provision of the dramshop act, plaintiff should be precluded from pursuing any other cause of action, including a premises liability action.\\nII. STANDARD OF REVIEW\\nStatutory interpretation is an issue of law that is reviewed de novo. G C Timmis & Co v Guardian Alarm Co, 468 Mich 416, 419; 662 NW2d 710 (2003).\\nIII. ANALYSIS\\nDefendant argues that plaintiffs premises liability cause of action is precluded by the exclusivity provision of the dramshop act, MCL 436.1801(10), which provides:\\nThis section [MCL 436.1801] provides the exclusive remedy for money damages against a licensee arising out of the selling, giving, or furnishing of alcoholic liquor.[ ]\\nMoreover, because the act also provides that \\\"[t]he alleged visibly intoxicated person shall not have a cause of action pursuant to this section..MCL 436.1801(9), defendant argues that plaintiff, as the alleged visibly intoxicated person, has no cause of action at all under the dramshop act.\\nPlaintiff does not contest that, if his cause of action, in fact, did arise from defendant's unlawful \\\"selling, giving, or furnishing\\\" of alcohol, he would be barred from bringing this cause of action by the dramshop act. However, plaintiff instead asserts that the act does not preclude a premises liability action filed by a visibly intoxicated person against the dramshop that unlawfully served alcohol to that person.\\nWe agree with plaintiff. Here, plaintiffs action arises from injuries he sustained after he slipped and fell in defendant's icy and snow-covered parking lot. That is, plaintiffs action is based on the claim that defendant did not sufficiently protect him as an invitee from a dangerous condition on the premises, specifically defendant's icy and snow-covered parking lot. Accordingly, this is not an action arising from the unlawful \\\"selling, giving, or furnishing\\\" of alcohol. MCL 436.1801(3). Rather, it is an ordinary premises liability action. This is made evident by considering that, had plaintiff not been served any alcohol at all by defendant, but still sustained the same injuries, plaintiff would not be precluded from asserting a premises liability action for such injuries on the basis of his invitee status.\\nBecause we hold that the dramshop act does not preclude plaintiffs premises liability cause of action, we next consider the relevancy of plaintiffs intoxication and defendant's knowledge of such intoxication. Generally, a premises possessor owes a duty of care to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land. Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185 (1995). This duty generally does not encompass a duty to protect an invitee from \\\"open and obvious\\\" dangers. Lugo, supra at 516. However, if there are \\\"special aspects\\\" of a condition that make even an \\\"open and obvious\\\" danger \\\"unreasonably dangerous,\\\" the premises possessor maintains a duty to undertake reasonable precautions to protect invitees from such danger. Id. at 517. To determine whether a condition is \\\"open and obvious,\\\" or whether there are \\\"special aspects\\\" that render even an \\\"open and obvious\\\" condition \\\"unreasonably dangerous,\\\" the fact-finder must utilize an objective standard, i.e., a reasonably prudent person standard. Id. That is, in a premises liability action, the fact-finder must consider the \\\"condition of the premises,\\\" not the condition of the plaintiff. Id. at 518 n 2. A visibly intoxicated person is held to the same standard of reasonable conduct as a sober person.\\nAccordingly, the Court of Appeals erred when it stated:\\nDefendant's service of alcohol was implicated only as it related to defendant's knowledge of plaintiffs condition as relevant to whether defendant's conduct in failing to inspect or clear the parking lot and failing to warn plaintiff was reasonable. [November 30, 2001, slip op at 4.]\\nRather, defendant's knowledge that plaintiff was intoxicated does not affect the legal duties it owes to plaintiff. That is, although defendant served plaintiff alcohol and was apparently aware that plaintiff was intoxicated, defendant does not owe plaintiff any heightened duty of care. Rather, in determining whether defendant breached its duty, the fact-finder must decide only whether a reasonably prudent person would have slipped and fallen on the ice and snow in defendant's parking lot, or whether that reasonably prudent person should have been warned by defendant of the dangerous condition.\\nIf plaintiffs extent of intoxication were considered in determining defendant's duty of care to plaintiff, such consideration, in our judgment, would circumvent the dramshop act's prohibition against permitting a visibly intoxicated person from collecting monetary damages arising from defendant's unlawful \\\"selling, giving, or furnishing\\\" of alcohol to such plaintiff. MCL 436.1801(9X10). The dramshop act protects dramshop owners by prohibiting a visibly intoxicated person from recovering damages that have arisen from the dram-shop unlawfully \\\"selling, giving, or furnishing\\\" alcohol to such person. In our judgment, the statutory protection would be nullified if dramshop owners, in premises liability actions, were held to a higher duty of care because they unlawfully sold alcohol to a visibly intoxicated person. Accordingly, a dramshop owner, as with any other property owner, has a duty toward the reasonably prudent invitee; he does not, however, have a heightened duty in the case of the visibly intoxicated invitee. Concomitantly, there is no diminished standard of reasonable conduct on the part of a visibly intoxicated invitee in comparison with any other invitee.\\nDefendant raises one last argument concerning the jury instructions. The \\\"Note on Use\\\" of M Civ JI 19.05 states that \\\"this instruction [pertaining to the obliga tions of a premises possessor to dimmish the hazards arising from the accumulation of ice and snow] should be used where applicable instead of the more general M Civ JI 19.03 [pertaining to the obligations of a premises possessor to warn of open and obvious dangers] .\\\" By-virtue of the \\\"instead of\\\" language, defendant argues that \\u00a7 19.03 and \\u00a7 19.05 are mutually exclusive and that the trial court erred in giving \\u00a7 19.03. Defendant argues that \\u00a7 19.05 applies in a single specific situation\\u2014where there is an accumulation of ice and snow\\u2014and that in such a situation, the trial court should only have instructed on \\u00a7 19.05. We disagree. Under Lugo, a premises possessor has a duty to \\\"protect\\\" an invitee from dangers that are either not \\\"open and obvious,\\\" or, although \\\"open and obvious,\\\" contain \\\"special aspects\\\" that make such dangers \\\"unreasonably dangerous.\\\" Lugo, supra at 516-517. Because the duty to \\\"protect,\\\" as that term was used in Lugo, is broader and more general than either the duty to \\\"warn,\\\" \\u00a7 19.03, or the duty to \\\"diminish\\\" a hazard caused by ice and snow, \\u00a7 19.05, we believe that the duty to \\\"protect\\\" encompasses both the duty to \\\"warn\\\" and the duty to \\\"diminish\\\" in these instructions. Accordingly, to the extent that the \\\"Note on Use\\\" of \\u00a7 19.05 implies that \\u00a7 19.03 and \\u00a7 19.05 are mutually exclusive, such an implication is unwarranted under Lugo, and the trial court did not err on this ground in delivering both instructions.\\nHowever, we believe that \\u00a7 19.03 is an inaccurate instruction. Under Lugo, a premises possessor must protect an invitee against an \\\"open and obvious\\\" danger only if such danger contains \\\"special aspects\\\" that make it \\\"unreasonably dangerous.\\\" Lugo, supra at 517. Because \\\"special aspects\\\" are not defined with regard to whether a premises possessor should expect that an invitee will not \\\"discover the danger\\\" or will not \\\"protect against it,\\\" \\u00a7 19.03, but rather by whether an otherwise \\\"open and obvious\\\" danger is \\\"effectively unavoidable\\\" or \\\"impose[s] an unreasonably high risk of severe harm\\\" to an invitee, Lugo, supra at 518, we believe that \\u00a7 19.03 sets forth an inaccurate statement of premises liability law.\\nWe further believe that \\u00a7 19.05 sets forth an inaccurate instruction. Under Lugo, a premises possessor must protect an invitee against an \\\"open and obvious\\\" danger only if such danger contains \\\"special aspects\\\" that make it \\\"unreasonably dangerous.\\\" Lugo, supra at 517. Thus, in the context of an accumulation of snow and ice, Lugo means that, when such an accumulation is \\\"open and obvious,\\\" a premises possessor must \\\"take reasonable measures within a reasonable period of time after the accumulation of snow and ice to diminish the hazard of injury to [plaintiff]\\\" only if there is some \\\"special aspect\\\" that makes such accumulation \\\"unreasonably dangerous.\\\" Section 19.05 ignores Lugo's \\\"unreasonably dangerous\\\" requirement by imposing an absolute duty on a premises possessor irrespective of whether the accumulation of snow and ice creates \\\"special aspects\\\" making such accumulation \\\"unreasonably dangerous.\\\" Such an absolute duty does not exist under Lugo.\\nW. CONCLUSION\\nWe agree in part with the Court of Appeals and hold that the dramshop act does not preclude plaintiffs premises liability cause of action because plaintiffs injuries arose from something other than defendant unlawfully \\\"selling, giving, or furnishing\\\" alcohol to plaintiff. However, we also hold that a dramshop's knowledge of an invitee's intoxication is irrelevant in determining whether that dramshop has breached its duty of care toward such invitee, and that there is no diminished standard of conduct on the part of a visibly intoxicated invitee. Accordingly, we reverse the judgment of the Court of Appeals, vacate the jury verdict, and remand this case for further proceedings consistent with this opinion.\\nCorrigan, C. J., and Taylor and Young, JJ., concurred with MARKMAN, J.\\nFormerly, MCL 423.22, before April 14, 1998.\\nPlaintiffs expert testified that given plaintiffs ingestion of so much alcohol, it was highly improbable that plaintiff could \\\"mask\\\" the degree of his intoxication. The expert apparently concluded that plaintiff was \\\"visibly intoxicated.\\\"\\nM Civ JI 19.03 states, in relevant part:\\nA possessor must warn the invitee of dangers that are known or that should have been known to the possessor unless those dangers are open and obvious. However, a possessor must warn an invitee of an open and obvious danger if the possessor should expect that an invitee will not discover the danger or will not protect [himself] against it.\\nNote on Use\\nThis paragraph is to be used in cases involving a claim of failure to warn.\\nM Civ JI 19.05 states:\\nIt was the duty of [defendant] to take reasonable measures within a reasonable period of time after the accumulation of snow and ice to diminish the hazard of injury to [plaintiff].\\nNote on Use\\nThis instruction should be used where applicable instead of the more general M Civ JI 19.03 Duty of Possessor of Land, Premises, or Place of Business to Invitee. It does not apply to public sidewalks.\\nUnpublished opinion per curiam, issued May 11, 2001 (Docket No. 210920).\\nUnpublished opinion per curiam, issued November 30, 2001 (Docket No. 201920).\\n\\\"[T]he dramshop act affords the exclusive remedy for injuries arising out of an unlawful sale, giving away, or furnishing of intoxicants.\\\" Manuel v Weitzman, 386 Mich 157, 164-165; 191 NW2d 474 (1971), quoting De Villez v Schifano, 23 Mich App 72, 77; 178 NW2d 147 (1970) (emphasis in original). An \\\"unlawful\\\" sale is a sale to either a minor or a visibly intoxicated person. MCL 436.1801(3).\\nBecause this is not an action arising from the unlawful \\\"selling, giving, or furnishing\\\" of alcohol, and because the common law recognizes a cause of action for defendant's alleged negligence, Lugo, supra at 516-517, our holding that the dramshop act does not preclude plaintiffs cause of action is consistent with the test set forth by this Court in Manuel v Weitzman, 386 Mich 157; 191 NW2d 474 (1971), as described in Millross v Plum Hollow Golf Club, 429 Mich 178, 187; 413 NW2d 17 (1987):\\n\\\"(1) Does the claim against 'the tavern owner' arise out of an unlawful sale, giving away, or furnishing of intoxicants? If so, the dramshop act is the exclusive remedy.\\n\\\"(2) If the claim arises out of conduct other than selling, giving away, or furnishing of intoxicants, does the common law recognize a cause of action for the negligent conduct? If so, then the dramshop act neither abrogates nor controls the common-law action. If not, there is no independent common-law claim.\\\"\\nSee also Jackson v PKM Corp, 430 Mich 262, 276-277; 422 NW2d 657 (1988) (applying the Manuel test as described in Millross).\\nBy his exaggerated language\\u2014\\\"the majority [is] using this case as a vehicle to rewrite Michigan premises liability law,\\\"post at 335; \\\"[t]oday's decision is simply the latest installment in the majority's systematic dismantling of the Restatement of Torts approach,\\\" id. at 336; \\\"the majority. . overrules decades of well-reasoned precedent, id.; \\\"the majority repudiates the Restatement approach,\\\" post at 342,\\u2014Justice Cavanagh is again merely raising issues he initially raised in his concurring opinion in Lugo, while in the process giving no effect to the \\\"special aspects\\\" doctrine articulated in that decision. Lugo, supra at 527. He is, of course, entitled to reargue Lugo for as long as he wishes, but it should he understood that the instant case represents nothing more than an ordinary application of the principles set forth in that opinion.\\nIn making a determination about whether an alleged dangerous condition is \\\"open and obvious,\\\" such a determination is not dependent on the characteristics of a particular plaintiff, but rather on the characteristics of a reasonably prudent person. Bertrand, supra at 617; Radtke v Everett, 442 Mich 368, 390-391; 501 NW2d 155 (1993), quoting 2 Restatement Torts, 2d, \\u00a7 283, comment c, p 13; Sidorowicz v Chicken Shack, Inc, 469 Mich 919 (2003) (Tayloh, J., concurring). By imposing an obligation upon a homeowner or other premises possessor, not merely to make his or her premises reasonably safe under ordinary circumstances, but also under every conceivable circumstance, Justice Cavanagh in his concurrence/dissent, post at 339-340, would impose a substantially increased legal burden upon such persons.\\nMoreover, \\\"an invitee,\\\" as used in \\u00a7 19.03, must be understood to refer to a \\\"reasonably prudent\\\" invitee. Lugo, supra at 523. Accordingly, a trial court must explain that this term refers to an objective invitee.\\nBecause we are seeking here to conform M Civ JI 19.05 with Lugo, and because Lugo has brought some reasonable measure of clarity to a law that had previously been in disarray, we respectfully disagree with Justice CAVANAGH'S assertion in his concurrence/dissent that, \\\"[i]n qualifying M Civ JI 19.05 with its Lugo standard, the majority has added uncertainty to Michigan premises liability law.\\\" Post at 343. Rather, the majority believes that it has moved in precisely the opposite direction by seeking to coordinate and render consistent the case law of Michigan rather than allowing, as has too often been true in recent years, multiple, conflicting expressions of the law to coexist, essentially allowing litigants to choose among inconsistent opinions in the manner that a patron at a Chinese restaurant might choose among dinner items from Column A or Column B. See, e.g., Nawrocki v Macomb Co Rd Comm, 463 Mich 143; 615 NW2d 702 (2000).\\nQuinlivan v The Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244, 261; 235 NW2d 732 (1975), must he understood in light of this Court's subsequent decisions in Bertrand and Lugo. Concerning the duty of care a homeowner or other premises possessor owes to an invitee arising from the accumulation of ice and snow, Justice Weaver relies in her concurrence/dissent on Quinlivan and asserts that \\\"premises possessors owed a duty to invitees to take 'reasonable measures . within a reasonable time after an accumulation of ice and snow to diminish the hazard of injury to the invitee.' \\\" Post at 344 (citation omitted). The majority is unprepared to hold that, absent any special aspects, and absent consideration of the open and obvious nature of a hazard, a homeowner or other premises possessor owes an absolute duty to an invitee to diminish the hazards attendant to the accumulation of ice and snow.\\nFurther, we are perplexed how Justice Weaver, in light of her concurring opinion in Lugo, supra at 544, in which she asserted that only the open and obvious standard should apply in determining whether a homeowner or other premises possessor is hable to an invitee for a dangerous condition on his premises, would now disavow the majority's supposed application of Lugo to Quinlivan on the grounds that not only are \\\"snow and ice accumulations . obvious,\\\" but \\\"the 'rigorous duty' owed by invitors to protect invitees from unreasonable harm justified] the imposition of a uniform duty on invitors regarding accumulations of snow and ice.\\\" Post at 344. Consistent with her opinion in Lugo, we are hard-pressed to understand how Justice Weaver could now conclude that a homeowner or other premises possessor has a duty of care to diminish a hazard caused by the accumulation of ice and snow, even if such hazard is open and obvious. In other words, Justice Weaver criticizes the majority in Lugo for fading to accord the \\\"openness and obviousness\\\" of a hazard exclusive consideration, whde in the instant case, she criticizes the majority for according the \\\"openness and obviousness\\\" of a hazard excessive consideration. Her positions in these two cases are wholly incompatible.\\nHowever, contrary to the dissent, post at 335, we do not reach this conclusion on the basis of our assessment of the \\\"spirit\\\" of the dramshop act, but rather on the basis of our assessment of its language.\\nAlthough the jury found plaintiff fifty percent comparatively negligent, it does not necessarily follow that the jury found that a reasonably prudent person would not have fallen in defendant's parking lot. Instead, by apportioning some negligence to plaintiff, the jury conceivably was finding only that, although a reasonably prudent person would also have fallen, such a person would not have sustained the same degree of injuries suffered by the visibly intoxicated plaintiff. We remand this case in order to enable the trial court to review de novo the proper legal standards and jury instructions in light of the facts of this case.\"}"

mich/1449367.json

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+"{\"id\": \"1449367\", \"name\": \"LASSEN v. KARRER\", \"name_abbreviation\": \"Lassen v. Karrer\", \"decision_date\": \"1898-07-12\", \"docket_number\": \"\", \"first_page\": \"512\", \"last_page\": \"514\", \"citations\": \"117 Mich. 512\", \"volume\": \"117\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T20:45:43.725918+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other Justices concurred.\", \"parties\": \"LASSEN v. KARRER.\", \"head_matter\": \"LASSEN v. KARRER.\\n1. Gaming \\u2014 Election Bet \\u2014 Recovery by Loser.\\n1 How. Stat. \\u00a7 2023, provides that any person losing any money by playing or betting on cards, or by \\u201c any other device in the nature of such playing and betting, \\u201d and paying the same to the winner, may recover in an action for money had and received. Held, that an action will not lie to recover money lost in betting on elections.\\n2. Same \\u2014 Construction of Statute.\\nThe statute, however, being remedial, should be liberally construed, and would be held, it seems, to cover betting on any game of chance.\\nError to St. Clair; Vance, J.\\nSubmitted June 9, 1898.\\nDecided July 12, 1898.\\nAssumpsit by Peter Lassen against Benjamin J. Karrer to recover money lost on an election bet. From a , judgment for plaintiff, defendant brings error.\\nReversed.\\nAtkinson & Wolcott, for appellant.\\nPhillips & Jenks, for appellee.\", \"word_count\": \"681\", \"char_count\": \"3851\", \"text\": \"Montgomery, J.\\nThis action was brought to recover $500, lost to defendant by plaintiff by betting on the result of an election. At the common law, one who lost money in prohibited gaming or betting could not recover, the rule, in the absence of statute, being that the law will leave the parties in pari delicto where it finds them. This has been so universally held that it is not necessary to support the proposition by authority. In fact, the doctrine is not controverted in this case; but the plaintiff contends \\u2014 and the circuit judge sustained the contention \\u2014that the plaintiff had a right of action by our statute (1 How. Stat. \\u00a7 2023), which provides that \\\"any person that shall lose any sum of money, or any goods or articles of value, by playing or betting on cards, or by any other device in the nature of such playing and betting, and shall, pay or deliver the same or any part thereof to the winner, the person so paying or delivering the same may sue for and recover such money in an action for money had and received to the use of the plaintiff,\\\" etc. The. single question is, therefore, whether betting on the result of an election is within the words of this statute. The earlier statutes were broader, and covered \\\" any betting whatever.\\\" 1 Comp. Laws 1857, \\u00a7 1582; 1 Comp. Laws 1871, \\u00a7 1992. The statute was amended to read as above quoted by Act No. 171, Pub. Acts 1877. Whether the more general language was omitted through inadvertence or intentionally we have no means of ascertaining; but, however this may be, the act itself must-speak, and, if it be not fairly susceptible of a construction which gives a right of action, we cannot extend its terms. We do not imply that this provision of the statute should have a strained construction. On the contrary, it is remedial in its nature, and may properly be given a liberal construction. Grace v. M'Elroy, 1 Allen, 563. We would not, therefore, hesitate to hold this provision of the statute to cover betting on any game of chance; but the question remains, Is a betting on the result of an election a device in the nature of playing and betting on cards ? We think not. The word \\\"device\\\" can hardly refer back to the word \\\"lose.\\\" It was not intended to say that, one who devises a scheme for losing may recover, but the language \\\"money lost in betting on a game of cards, or a device in the nature of such game,\\\" must be construed to mean some device or game, instituted either by the parties themselves or others, calculated to induce betting, and designed to do so. In other words, the most extended construction permissible would limit this language.to betting on games of cards played by those who made the wager, or by others, or betting on some other game of- chance or skill. An election does not fall within the definition of a game. Woodcock v. McQueen, 11 Ind. 14.\\nThe judgment will be reversed, and judgment entered for defendant, with costs of both courts.\\nThe other Justices concurred.\"}"

mich/1453869.json

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+"{\"id\": \"1453869\", \"name\": \"MOON v. MILLS\", \"name_abbreviation\": \"Moon v. Mills\", \"decision_date\": \"1899-01-20\", \"docket_number\": \"\", \"first_page\": \"298\", \"last_page\": \"300\", \"citations\": \"119 Mich. 298\", \"volume\": \"119\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T19:00:32.621514+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other Justices concurred.\", \"parties\": \"MOON v. MILLS.\", \"head_matter\": \"MOON v. MILLS.\\n1. Easements \\u2014 Right of Way \\u2014 Obstruction of Axley \\u2014 Injunction.\\nThe owner of a perpetual right of way in a private alley on which his property abuts will not be restrained, at the suit of another abutting owner having the same rights, from maintaining therein an obstruction beneficial to himself, unless the complainant shows that he is incommoded thereby.\\n2. Same \\u2014 Prescriptive Right.\\nPrescriptive rights may be acquired in land laid out for an alley.\\nAppeal from Livingston; Smith., J.\\nSubmitted January 3, 1899.\\nDecided January 20, 1899.\\nBill by Orrin N. Moon and another against Wesley J. Mills to compel the removal of obstructions from an alley. From a decree dismissing the bill, complainants appeal.\\nAffirmed.\\nJudd Yelland, for complainants.\\nW. H. S. Wood, Louis E. Howlett, and W. P. Van Winkle, for defendant.\", \"word_count\": \"904\", \"char_count\": \"5296\", \"text\": \"Long, J.\\nThis bill was filed to compel the removal of a certain platform, stairway, and water-closet from and out of an alley situate between the premises of the complainants and the defendant. The alley is 12 feet wide and 160 feet long, extending from the street to another alley at right angles with it. The complainants' premises, which are 24 feet in width, abut in the rear upon this first alley, and extend through to East street, upon which their store fronts. The defendant's premises, upon which there are three brick stores, face on Main street, and extend te the alley in the rear. The obstruction complained of is a platform 29 feet 10 inches in length, .extending partly across the rear end of the second story of defendant's buildings. Leading down from the platform into the alley is a stairway about 35 inches in width. The platform is held in place by brackets fastened against the wall, 12 feet from the ground. The water-closet is beneath the stairway, and not extending so far into the alley as the stairway itself. The stairway and platform are used for the purpose of reaching the second story of de- k fendant's buildings, these stories being used as offices, living rooms, and dressmaking parlors.\\nThe defendant purchased his premises from the heirs of Almon Whipple, in 1880 and 1881. The alley in question also belonged to that estate. The deeds to the defendant, after describing the property, recite:\\n\\\"Together with a perpetual right of way twelve feet wide, parallel with Main street, extending from Clinton street south to the alley on lot number 33 of Cowdry's addition, running parallel with Grand River street, which right of way is to be used in common by the parties of the second part, their heirs and assigns, \\u2022 and the owners, their heirs and assigns, of the several lots and parcels of land lying west and bordering on the above-described alleys, according to the recorded plat,\\\" etc.\\nSoon after the defendant purchased his premises, these three store buildings were erected, and three different stairways built in the alley leading to the upper rooms of the stores. Fires occurred in the buildings some time in 1887, when the three stairways were rebuilt. No objection seems to have been made to these obstructions by any one until the complainants purchased their property, on the opposite side of the alley, in 1897. While complainants were building their property, defendant took down the three stairways, and erected the platform and one stairway instead. No objection was made by complainants to these changes while they were being made.\\nThe case was heard in open court, and the bill dismissed. Complainants appeal.\\nWe think the testimony shows conclusively that the complainants are not injured in any manner by these obstructions. The land in this alley was never dedicated to the public by any plat, and the only ones interested in the alley are those whose property abuts thereon. Under the deeds to the defendant, he has a perpetual right of way in the alley. Any encroachment must become a serious inconvenience to the parties having the right of way before it becomes a nuisance. The claim of complainants is that, as matter of law, they are entitled in a court of equity to a removal, though they show no equitable reasons why it should be so ordered. This contention cannot be sustained. The true rule is that one of the owners in common of a way, who erects an obstruction on his part, beneficial to himself, and which does not tend to incommode one who has an equal right, cannot be compelled to remove such obstruction. 19 Am. & Eng. Enc. Law, 113.\\nThere is another reason which prevents the complainants from sustaining their claim. The defendant obtained his deeds in 1880 and 1881, and in the following iyear erected his buildings, and from that time to the present has occupied the alley by the stairways erected in the alley in the rear of these buildings. There has been a continued, uninterrupted use of the alley by the stairways, under a claim of right, for more than 1? years prior to the time of filing the present bill. Prescriptive rights may .be acquired in an alley, though it was laid out as such. Vier v. City of Detroit, 111 Mich. 646. Title may be acquired to a public highway by adverse possession. Village of Essexville v. Emery, 90 Mich. 183.\\nThe court below was correct in dismissing complainants' bill. That decree will be affirmed, with costs.\\nThe other Justices concurred.\"}"

mich/1470871.json

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+"{\"id\": \"1470871\", \"name\": \"DODGE v. REYNOLDS\", \"name_abbreviation\": \"Dodge v. Reynolds\", \"decision_date\": \"1904-03-08\", \"docket_number\": \"Docket No. 185\", \"first_page\": \"692\", \"last_page\": \"696\", \"citations\": \"135 Mich. 692\", \"volume\": \"135\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T22:28:26.925971+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other Justices concurred.\", \"parties\": \"DODGE v. REYNOLDS.\", \"head_matter\": \"DODGE v. REYNOLDS.\\n1. Evidence \\u2014 Sale\\u2014Harmless Error.\\nIn an action to recover damages for a failure to deliver fruit baskets as contracted, evidence.by defendants that plaintiff \\u25a0 had loaned them money, which they had secured by an assignment of certain accounts, if inadmissible, was not prejudicial.\\n3. Same \\u2014 Hearsay\\u2014Explanation of Testimony.\\nWhere, in such action,.plaintiff showed that defendants had published a notice that they had no agent in their employ soliciting for them or managing their business, it was permissible for defendants to show, for the purpose of explaining why the notice was published, that they had learned that plaintiff claimed to be their general agent and business manager.\\n3. Contracts \\u2014 Breach\\u2014Sale of .Goods on Commission. -\\nA' contract whereby plaintiff was to sell goods for defendants on commission was violated by his selling them at a less price than that agreed upon, justifying a refusal by defendants to furnish him further goods, where it was understood that defendants wpuld continue to sell in the same locality, and plaintiff, by such underselling, induced their customers to : buy of him.\\n4. Trial \\u2014 Instructions\\u2014Credibility of Witnesses.\\nA charge that \\u201cYou are to-believe as jurors what you would' believe as men, and there is no rule of law that requires you to believe as jurors what you would not believe as men,\\u201d was not error, where it followed a statement properly instructing them how they should weigh the testimony of the witnesses.\\n5. Contracts \\u2014 Construction\\u2014Sale.\\nWhere defendants agreed to furnish plaintiff with fruit baskets-for sale by him, but not all he could sell, and, after baskets had been furnished him for a part of the season, it developed that defendants could not manufacture more than they themselves could sell at retail, which plaintiff had understood they were to continue to do, they were under no obligation to supply him further with baskets.\\nError to Van Bur\\u00e9n; Carr, J.\\nSubmitted October 23, 1903.\\n(Docket No. 185.)\\nDecided March 8, 1904.\\nAssumpsit by Thomas F. Dodge against Sylvester Gr. Reynolds and Anson R. McRill, copartners as Reynolds \\u25a0& McRill, for the breach of a contract to supply goods. From a judgment for defendants, plaintiff brings error.\\nAffirmed:\\nWilliam J. Barnard and William G. Howard, for appellant.\\nLincoln H. Titus, for appellees.\", \"word_count\": \"1516\", \"char_count\": \"8630\", \"text\": \"Moore, O. J.\\nThe plaintiff, a resident of Lawton, had been engaged for some years in selling fruit packages. It is his claim that defendants agreed to supply him with fruit packages for the season of 1901; that, after supplying him for part of the season, they refused to do so for the balance of the season. He brought this suit to recover the damages. The case was tried before a jury, which rendered a verdict in favor of defendants. The case is brought here by writ of error.\\nThe following is the plaintiff's version of the contract:\\n\\\" I reside in Lawton, and for upwards of 10 years have been engaged in selling fruit packages, and have a warehouse there for that purpose. I make it a business. I had a conversation during the spring or fore part of the summer of 1901 with Mr. McRill, who came to me to know if I would sell baskets for them. I think he was coming from his factory, and met me near the .Michigan Central depot there one day, which I think was about the middle of May, and he says to me, ' Why cannot you sell our baskets this year just as well as to bring baskets in here, and we will give you the same commission ?' I told him that that was perfectly satisfactory to me, and I would do so. That constituted our trade, just in a few words, but it covered the whole ground. He said he would give me the same commission I was getting, which was always 10 per cent., and pursuant to that conversation I went on and sold baskets for them.\\\"\\nHis orders were filled by defendants for a time, settlements were made, and plaintiff was allowed his commis.sions in full for the orders that were filled. Later in the season defendants declined to furnish him with crates. The defendants claim they performed all the agreement they ever made with the plaintiff.\\nIt is the claim of plaintiff that the court erred in relation to the admission of evidence, and also as to portions of his charge. The defendants insist there was no error in either of these respects, and that, conceding there was, no harm was done, as plaintiff, upon his own showing, was not entitled to recover, because the contract lacked mutuality. The judge was of the opinion that, if the jury found plaintiff's version to be true, he was entitled to recover, and submitted that feature of the case to them. A considerable portion of both briefs is devoted to a discussion of the last question, but, with our view of the case, it is not necessary to decide it.\\nMr. Reynolds was examined as a witness on the part of defendants. After he had been cross-examined, he was; allowed to testify that in August the plaintiff had loaned his firm $500, to secure which it had assigned to him certain accounts. It is difficult to see upon what theory this testimony was admitted, and, upon the other hand, we do not see how any harm came of it.\\nComplaint is made because the court allowed Mr. McRill to answer the following question:\\n\\\"Did it come to the attention of the firm that Mr. Dodge claimed to be your general agent and business manager ?\\\"\\nIn making his case, the plaintiff caused to be put in evidence a notice published on the 30th of August in the. local paper, reading as follows:\\n\\\"Fruit Growers, Take Notice!\\n' ' Fruit growers will please take notice that we have no agent in our employ soliciting for us or managing our business. If you wish to buy home-made packages, call at the factory.\\n\\\"Reynolds & McRill.\\\"\\nWe think it was competent to permit an answer to the question as tending to show why the notice was published.\\nComplaint is made of that portion of the charge reading as follows:\\n\\\"If you find from the evidence that the plaintiff, Dodge, sold baskets at a less price than that agreed upon by the parties, and thereby induced customers of the defendants to purchase of him, this would be a violation of the contract between the parties, and would justify the defendants in dismissing Dodge.\\\"\\nPrior to making the arrangement between the parties, defendants had retailed their own goods, and it was expected they would continue to do so. The retail price for baskets was $19 a thousand. It was the claim of defendants that Mrs. Eaton had been a customer of theirs, but was induced to buy 10,000 baskets of the plaintiff because he sold them to her for $18.50 a thousand. Plaintiff at first claimed he got from her the full $19 a thousand, but, when confronted with the receipt, said the 50 cents per thousand was allowed to her for drayage. In view of this situation, we do not think the charge was error.\\nComplaint is made of the following:\\n\\\"You are to believe as jurors what you would believe as men, and there is no rule of law that requires you to believe as jurors-what you would not believe as men.\\\"\\nWe think this portion of the charge should be read with the following, which immediately preceded it:\\n\\\"You are to take into account, in weighing the testimony of any witness, his interest or want of interest in the result of the case, his appearance upon the witness stand, his manner of testifying, his apparent candor or want of candor, whether he is supported or contradicted by the facts and circumstances in the case as shown by the evidence. You have a right to believe all the testimony of a witness, or believe it in part and disbelieve it in part, or you may reject it altogether, as you may find the evidence to be.\\\"\\nWhen so read, we think it was not misleading, and was a proper charge.\\nComplaint is also made of the following:\\n\\\" It is not claimed in this case that plaintiff, Dodge, was made the sole or exclusive agent of defendants for the sale of these- baskets, and defendants, therefore, had a right to sell their own baskets to whomsoever they could, and, if they could not manufacture more than they themselves could sell, then they were under no obligations to supply Dodge with baskets, unless the contract, bargain, or agreement was that they were to supply him all the baskets he could sell.\\\"\\nIt has already been stated that defendants had been in the habit of retailing their goods, and plaintiff knew this fact, and expected they would continue to do so. In view of this situation, we think the charge was proper.\\nThe other assignments of error have been examined, but we do not deem it necessary to discuss them.\\nJudgment is affirmed.\\nThe other Justices concurred.\"}"

mich/1470915.json

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+"{\"id\": \"1470915\", \"name\": \"WINEMAN v. FISHER\", \"name_abbreviation\": \"Wineman v. Fisher\", \"decision_date\": \"1904-02-16\", \"docket_number\": \"Docket No. 95\", \"first_page\": \"604\", \"last_page\": \"608\", \"citations\": \"135 Mich. 604\", \"volume\": \"135\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T22:28:26.925971+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other Justices concurred.\", \"parties\": \"WINEMAN v. FISHER.\", \"head_matter\": \"WINEMAN v. FISHER.\\n1. Corporations \\u2014Labor Debts \\u2014 Stockholders\\u2019 Liability\\u2014 Declaration.\\nIn a suit commenced in justice\\u2019s court against defendant as a stockholder in a corporation, plaintiff declared in an action of assumpsit on the common counts, and specially on a certain justice\\u2019s judgment in favor of plaintiff and against the corporation for a labor debt, and alleged that recovery was sought under 3 Comp. Laws, \\u00a7 7065, making stockholders of a corporation personally liable for labor performed for the corporation. Held, that, under the liberal rules of practice in justice\\u2019s court, the declaration was sufficient.\\n3. Same \\u2014 Motion for New Trial \\u2014 Objections\\u2014Appeal.\\nWhere, in an action against a stockholder of a corporation for a labor debt, the court directed a verdict for defendant on the ground that his liability had terminated by a discharge in bankruptcy, an objection that there was no evidence that plaintiff had performed labor for the corporation, raised for the first time in opposition to plaintiff\\u2019s motion for new trial, should not be considered, either on the disposition of the motion or on appeal from the court\\u2019s order denying the same.\\n3. Same \\u2014 Evidence\\u2014Judgment and Execution.\\nOn the trial of such action, a judgment against the corporation, reciting that it was for labor performed, and an execution issued thereon, returned unsatisfied, were admissible in evidence, as against an objection that defendant, as a stockholder, was not bound thereby; and such objection was insufficient to warrant the after contention that there was no competent evidence that the claim against the corporation was for labor.\\n4. Bankruptcy \\u2014 Discharge\\u2014Liability\\u2014Burden op Proop.\\nA discharge in bankruptcy does not, by the terms of the act, release the bankrupt from claims omitted from the schedule, unless the creditor had knowledge or notice of the bankruptcy proceedings; and the burden of proving such knowledge or notice rests upon the bankrupt.\\nError to Wayne; Brooke, J.\\nSubmitted November 5, 1903.\\n(Docket No. 95.)\\nDecided February 16, 1904.\\nAssumpsit by Hugo A. Wineman against Frank E. Fisher to enforce defendant\\u2019s liability for a labor debt of a corporation in which he was a stockholder. From a judgment for defendant on verdict directed by the court, \\u2022 plaintiff brings error.\\nReversed.\\nWilliam Stacey, for appellant.\\nGeorge W. Bates, for appellee.\", \"word_count\": \"1387\", \"char_count\": \"8341\", \"text\": \"Carpenter, J.\\nPlaintiff brought this suit in justice court. His declaration was \\\"in an action of assumpsit on all the common counts, and specially on a certain judgment rendered by Justice Stein, one of the justices for the city of Detroit, on the 3d day of July, A. D. 1899, in favor of said plaintiff and against the Fisher Electrical Manufacturing Company, on a labor debt, for the sum of $251.16, and interest since the date of said judgment. Recovery is sought in this case under section 7065, 2 Comp. Laws 1897, which makes stockholders of a corporation personally liable for labor performed for the corporation.\\\" The plea was the general issue, with notice that defendant would rely upon a discharge in bankruptcy. The trial in the justice court resulted in a judgment for plaintiff.. The case was appealed' to the circuit. On the trial in that court plaintiff offered in evidence the judgment referred to, which contained this recital:\\n\\\" That the entire amount of said judgment is for labor performed by the plaintiff for the defendant prior to the 15th day of February, 1898, and that the same is a preferred claim, under Act No. 91 of the Public Acts of 1887, against the estate of the defendant.\\\"\\nHe also offered in evidence an execution returned unsatisfied. These were objected to on the ground that defendant, as a stockholder, is not bound by any judgment against the original debtor. This objection was overruled, and the judgment and execution admitted in evidence.\\nDefendant introduced in evidence a discharge in bankruptcy, dated July 12, 1899. By its terms defendant was \\\" dischai'ged from all debts and claims which are made provable by said acts against his estate, and which existed on the 17th day of May, A. D. 1899, excepting such debts as are by law excepted from the operation of a discharg\\u00e9 in bankruptcy.\\\" The schedule of liabilities in the bankruptcy proceedings did not include plaintiff's claim.\\nThe court directed a verdict for the defendant upon the ground that the discharge in bankruptcy put an end to his liability. Leave was reserved at the same time to enter a verdict for the plaintiff if, on a motion for a new trial, the court should become convinced that such a direction was proper. In opposition to a motion for a new trial, defendant was permitted to urge that the verdict was properly directed, not only because of the discharge in bankruptcy, but because the declaration did not set forth a cause of action, and also because there was no evidence that plaintiff had performed labor for the Fisher Electrical Manufacturing Company; and the court for these reasons, as well as for the reason that the discharge constituted a defense, denied the motion.\\nWe think, under the liberal rules governing practice in justice court, the declaration was sufficient. See Hartford v. Holmes, 3 Mich. 460; Cicotte v. Morse, 8 Mich. 427. It clearly apprised defendant of the claim asserted against him, and was not open to objection under the decisions of Tilden v. Young, 39 Mich. 58, and Chicago, etc., R. Co. v. Sturgis, 44 Mich. 538 (7 N. W. 213).\\nWe do not think that the objection that there was no evidence that plaintiff had performed labor for the Fisher Electrical Manufacturing Company should have been considered by the circuit judge on the motion for a new trial, nor that it should be considered by this court. Assuming that the recital that \\\"the entire amount of said judgment is for labor performed \\\" has no effect as evidence, because the statute which authorized it was unconstitutional (see Fisher v. Wineman, 125 Mich. 642 [84 N. W. 1111, 52 L. R. A. 192]), this objection should have been made before the trial court directed a verdict. That objection was not made. The objection that the judgment and execution were inadmissible in evidence because defendant, as a stockholder, was not bound thereby, was properly overruled, \\u2014 for the judgment was clearly admissible in evidence, \\u2014 and did not raise the question now under consideration. In directing a verdict for the defendant on the ground that the proceedings in bankruptcy terminated his liability for the claim in suit, the court assumed that there was evidence of such liability. To permit defendant to shift his defense after he obtained a verdict on this assumption would be manifestly unjust and unfair to plaintiff. Had the objection now under consideration been made before verdict, it is by no means certain that the court would not have permitted plaintiff to answer it by introducing additional testimony. In any event, plaintiff could then have avoided the effect of a final adjudication by submitting to a nonsuit.\\nThe important question in the case is whether the debt for which suit was brought was discharged by the bankruptcy proceeding. Section 17 of the national bankruptcy law reads:\\n\\\"A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy.\\\" Act July 1, 1898, chap. 541, 30 Stat. 550.\\nIt is apparent from this language \\u2014 and it is so held; see Tyrrel v. Hammerstein, 6 Am. Bankr. R. 430, 67 N. Y. Supp. 717 \\u2014 that the discharge does not release the bankrupt from claims omitted from the schedule, unless the creditor has notice or knowledge of the bankruptcy proceedings. There was no evidence in this case that plaintiff had such notice or knowledge. It is contended by the defendant that plaintiff was bound to prove that he did not have it. We think the burden of proving that plaintiff had such notice or knowledge rested upon defendant. See Potter's Dwarris, Stat. & Const, p. 119; Sedgwick, Stat. Constr. (2d Ed.) p. 93; 1 Chitty, Crim. Law, p. 283.\\nThe judgment of the court below must therefore be reversed, and a new trial granted.\\nThe other Justices concurred.\"}"

mich/1472820.json

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+"{\"id\": \"1472820\", \"name\": \"CATHRO v. GRAY\", \"name_abbreviation\": \"Cathro v. Gray\", \"decision_date\": \"1896-02-26\", \"docket_number\": \"\", \"first_page\": \"429\", \"last_page\": \"432\", \"citations\": \"108 Mich. 429\", \"volume\": \"108\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T00:18:16.118659+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other Justices concurred.\", \"parties\": \"CATHRO v. GRAY.\", \"head_matter\": \"CATHRO v. GRAY.\\nSpecific Performance \\u2014 When Denied.\\nEquity will not enforce the specific performance of a land contract at the suit of a vendee who, having received notice that the contract had been forfeited by reason of his failure to make the payments provided for therein, took no steps for a number of years to enforce any rights that he might have under the contract, but, on the contrary, permitted a subsequent purchaser from the vendor to take possession of the premises, and to make valuable improvements thereon.\\nAppeal from Alpena; Simpson, J., presiding.\\nSubmitted January 29, 1896.\\nDecided February 26, 1896.\\nBill by John J. Cathro against Edgar L. Gray and John J. Murphy for the specific performance of a land contract. From a decree dismissing the bill, complainant appeals.\\nAffirmed.\\nW. E. Depew, for complainant.\\nEdgar L. Gray, for defendants.\", \"word_count\": \"927\", \"char_count\": \"5303\", \"text\": \"Long, C. J.\\nIn June, 1878, defendant Gray entered into a written contract with the complainant and George Cathro, to sell and convey to them 120 acres of land in Alpena county, for the sum of $420, to be paid in annual payments of $105 each, the last payment to be August 31, 1882. The contract provided that the vendees should pay all taxes and assessments, and all back taxes since and including the year 1873, and, upon full payment being made, the vendor should convey the premises by warranty deed; but, if the payments were not made in full, the payments theretofore made should be forfeited, and the premises, with the improvements thereon, should revert, and the vendor might thereupon re-enter and take possession, or, at his option, .the vendor might enforce the payment of the money due on the contract; but no pine timber was to be taken off without the written assent of the vendor. George Cathro thereafter assigned his interest in the contract to the complainant. Defendant Gray, claiming that complainant, Cathro, had not kept up his payments in accordance with the terms of the contract, treated it as void, and on October 23,1887, entered into a written contract with defendant John J. Murphy for the sale of the lands to him for the sum of $600, the last payment of which was to be made October 25, 1891. After this contract was made, Mr. Murphy entered into possession of the premises, paid the taxes thereon, and has made more or less improvements upon the premises. Complainant now files this bill to enforce specific performance of the contract made with him, and an accounting to ascertain the amount due from him to defendant Gray, and claims to have made certain payments under the contract. The testimony was taken before a commissioner, reported to the court below, and upon such proofs that court dismissed the complainant's bill. The complainant appeals to this court.\\nIt appears that, after Cathro obtained his contract, he cut and removed from the premises quite a quantity of timber; that he did not keep up his payments, when, in the summer of 1883, Mr. Gray notified him that his contract was forfeited. After this notice was given, the complainant wrote his brother George in reference thereto, and stated in the letter:\\n\\\"If you want to keep your interest, you will have to send me a power of attorney to act for you. I do not know how you will look on it. As for myself, I would let it go, only it would leave me liable for whatever he might choose to charge me for the hardwood he claims pay for, or defend it by a lawsuit, which I may as well enter first as last.\\\"\\nThe claim by defendant Gray is that Cathro thereafter did nothing in reference to the lands, made no further payments under his contract, and that the whole matter *was ended so far as Cathro was concerned, when, in 1887, he (the defendant) made a contract of sale of the lands to defendant Murphy; that, before Murphy purchased, he had a talk with Cathro in reference to these lands. At first Cathro claimed some interest in them, and produced a contract; but Mr. Murphy testified that, upon examining it, he found that it described other lands than those in controversy here, and that Cathro then said to him that, if he wanted to go on and make a farm of it, he would never bother him; that he would likely see Mr. Gray, and settle the difficulty with him. Mr. Murphy claims that, with this understanding, he went into possession of the premises, made valuable improvements thereon, paid the contract price, and paid the taxes for the years 1887-1889; that these premises were adjoining those occupied by Mr. Cathro; and that Cathro saw him year by year making improvements, and made no objection thereto until about the time of the filing of this bill.\\nWe are satisfied from an examination of the testimony that Mr. Cathro failed in making his payments in accordance with the terms of his contract, and that Mr. Gray had the right in 1883 to terminate it; that Cathro did not seek thereafter to enforce the terms of his contract, and that Mr. Murphy, in 1887, in making the purchase, acted in good faith; that Cathro knew of Mr. Murphy's purchase; and that, while he claims that from year to year he made objections to Murphy's possession, he took no steps to enforce his claimed rights, but permitted Murphy to expend money in improvements.\\nThe decree of the court below must be affirmed, with costs.\\nThe other Justices concurred.\"}"

mich/1476752.json

@@ -0,0 +1 @@
+"{\"id\": \"1476752\", \"name\": \"PENFOLD v. SLYFIELD\", \"name_abbreviation\": \"Penfold v. Slyfield\", \"decision_date\": \"1896-07-28\", \"docket_number\": \"\", \"first_page\": \"343\", \"last_page\": \"347\", \"citations\": \"110 Mich. 343\", \"volume\": \"110\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T20:39:22.892352+00:00\", \"provenance\": \"CAP\", \"judges\": \"Grant, Montgomery, and Hooker, JJ., concurred. Long, O. J., did not sit.\", \"parties\": \"PENFOLD v. SLYFIELD.\", \"head_matter\": \"PENFOLD v. SLYFIELD.\\n1. Commencement op Suit \\u2014 Declaration\\u2014Service.\\nUnder 2 How. Stat. \\u00a7 7291, relating to the commencement of suits by declaration, service of the copy of declaration and notice of rule to plead may be made by the plaintiff in person, even though he be an officer authorized to serve process in general.\\n2. Same \\u2014 Style op Process \\u2014 Constitutional Law.\\nThe provision of the Constitution (article 6, \\u00a7 35) that the style of all process shall be \\u201cIn the Name of the People of the State of Michigan\\u201d does not apply to notice of the rule to plead served with a copy of the declaration as commencement of suit, but only to process issued by the courts.\\n3. Parties \\u2014 Joint Dependants \\u2014 Notice op Trial \\u2014 Judgment.\\nA judgment in an action against several defendants in which \\u25a0 only a joint judgment is permissible cannot be rendered with out giving notice of trial to a defendant who is not served, but who appears, and files and serves a plea of the general issue, unless the right to such notice is waived.\\nError to Benzie; Aldrich., J.\\nSubmitted April 9, 1896.\\nDecided July 28, 1896.\\nAssumpsit by Jonathan Penfold against Charles B. Slyfield and others upon an appeal bond.' From a judgment for plaintiff, defendants bring error.\\nReversed.\\nWilson & Bailey and Pratt & Davis, for appellants.\\nBmurthwaite & Fowler, for appellee.\", \"word_count\": \"1251\", \"char_count\": \"7127\", \"text\": \"Moore, J.\\nIn February, 1894, in the United States district court, Penfold obtained a judgment on a cross libel against the tug E. D. Holton, the property of the Slyfields, the amount of the judgment and costs being $2,306.21. Pending an appeal to the United States circuit court of appeals, and in order to stay proceedings, the Slyfields filed a supersedeas bond in the sum of $4,000. The sureties on the bond were the other defendants in this cause. The court of appeals affirmed the judgment of the district court in February, 1895 (13 C. C. A. 512, and 66 Fed. 362), and added the costs and damages incurred during that trial. In June, 1895, the judgment being unpaid, and the tug Holton having been sold by the Slyfields, plaintiff began suit by declaration in the circuit court for Benzie county upon the bond. The declaration, with rule to plead indorsed thereon, was served by the plaintiff personally upon all the defendants except Elmer E. Slyfield, and plaintiff made affidavit of service. All of the defendants except Elmer E. Slyfield appeared by their attorneys, and moved to quash the proceedings. The motion attacked the process served by plaintiff, upon the following grounds:\\n1. That Penfold was a deputy sheriff, and could not legally serve his own process.\\n2. That the rule to plead, indorsed on the declaration, was not sufficient, in that it was not entitled \\\"In the Name of the People of the State of Michigan,\\\" and was consequently not proper process.\\n3. That because of such defect in the rule to plead the court obtained no jurisdiction over the defendants.\\n. The court overruled the motion, and, as no further appearance or pleading was made by the defendants, their default was duly entered. In September, 1895, the cause came on for trial, in the Benzie circuit court. The attorneys for Elmer E. Slyfield appeared, and, in his behalf, filed and served a plea of the general issue, and claimed that, as no notice of trial had been served on Elmer E. Slyfield, the cause could not proceed. The court directed the trial to proceed, and as Elmer E. Slyfield's attorneys declined to take part, on the ground above stated, judgment was entered as against all the defendants, Elmer E. Slyfield being treated as a defendant not served with process.\\nSection 7291, 2 How. Stat., authorizes commencement of suits by declaration, and prescribes the method in which they may be commenced, and provides for personal service upon the defendant. It has long been .held that the service of the declaration may be made by the plaintiff. 1 Green, New Prac. (2d Ed.) 132; Grah. Prac. 459; Munn v. Haynes, 46 Mich. 140.\\nAs to the proposition that the declaration and rule to plead must run \\\"In the Name of the People of the State of Michigan,\\\" or violate article 6, \\u00a7 35, of the Constitution, which provides that the style of all process shall be \\\"In the Name of the People of the State of Michigan,\\\" it' is sufficient to say that this provision applies only to process issued by courts. Tweed v. Metcalf, 4 Mich. 588. Courts issue process of various kinds, but do not issue' declarations as commencement of suits. They are prepared and issued by the plaintiff, or some one. acting for the plaintiff. It is true that in Begole v. Stimson, 39 Mich. 298, and City of Menominee v. Menominee Circuit Judge, 81 Mich. 577, the declaration is characterized as being in the nature of process to bring the defendant into court; but nowhere is it regarded as process, within the meaning of the foregoing constitutional provision. The method of commencing suits by declaration has been in use in this State for many years. They have never been entitled \\\"In the Name of the People of the State of Michigan.\\\" To hold this was essential would revolutionize the practice, and invalidate half the judgments taken in our State courts. We think the circuit judge very properly overruled the motion to quash the proceedings.\\nThe only other question necessary to discuss here is what effect, when the cause came on for trial, did the entry of appearance of Elmer E. Slyfield, and his plea of the general issue, have upon the case? Was the effect of this action such as to make it unlawful for the court to render judgment in form against all of the defendants, after which an execution might issue that would be good against all of the defendants except Elmer E. Slyfield, who was not served with process ? Just what occurred before the trial judge, after Elmer E. Slyfield appeared in the case, we have no means of knowing, as no bill of exceptions has been settled. The record is silent as to whether he asked for a continuance of the case, announced himself ready for trial, or remained silent. All of the defendants who were served with process were in default, and as to them the case was in a condition to be heard. The record shows that plaintiff's claim was upon a joint demand, upon which his judgment must be against all or none. The defendant Elmer E. Slyfield had a legal right to appear at any time before trial. Ralston v. Chapin, 49 Mich. 276. By filing and serving his ple\\u00e1, he became entitled to notice of trial; and no judgment could be taken against him without such notice, or a waiver of his right to the same. It would seem to follow that if the judgment must be joint, and the case was not in a situation to go to judgment against one of the joint debtors, the court could not properly render any judgment. City of Detroit v. Houghton, 42 Mich. 459; Seligman v. Gray, 66 Mich. 341; Ralston v. Chapin, 49 Mich. 276; 1 Green, New Prac. (2d Ed.) 461; Bank of Genesee v. Field, 19 Wend. 643; Platner v. Johnson, 3 Hill, 476; Miller v. McCagg, 4 Hill, 35.\\nThe judgment is reversed, and a new trial ordered.\\nGrant, Montgomery, and Hooker, JJ., concurred. Long, O. J., did not sit.\"}"

mich/1491536.json

@@ -0,0 +1 @@
+"{\"id\": \"1491536\", \"name\": \"HARVEY v. ZIMMER\", \"name_abbreviation\": \"Harvey v. Zimmer\", \"decision_date\": \"1907-03-05\", \"docket_number\": \"Docket No. 23\", \"first_page\": \"371\", \"last_page\": \"372\", \"citations\": \"147 Mich. 371\", \"volume\": \"147\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T19:52:51.924385+00:00\", \"provenance\": \"CAP\", \"judges\": \"McAlvay, C. J., and Carpentr, Grant; and Moore, JJ., concurred.\", \"parties\": \"HARVEY v. ZIMMER.\", \"head_matter\": \"HARVEY v. ZIMMER.\\nSpecific Performance \\u2014 Contract to Convey \\u2014 Evidence.\\nOn a bill to enforce specific performance of an alleged oral contract, by which defendant agreed that complainant should live upon his farm and cultivate it on shares during his lifetime, and that the farm should belong to complainant on his death, evidence examined, and held, not sufficient to establish the contract.\\nAppeal from Ingham; Wiest, J.\\nSubmitted January 17, 1907.\\n(Docket No. 23.)\\nDecided March 5, 1907.\\nBill by Lizzie Harvey against Peter Zimmer to compel the specific performance of a land contract. From a decree dismissing the bill, complainant appeals.\\nAffirmed.\\nWilliam T. Webb (Q. A. Smith and O. J. Hood, of counsel), for complainant.\\nBlack & Beasoner, for defendant.\", \"word_count\": \"285\", \"char_count\": \"1752\", \"text\": \"Hooker, J.\\nComplainant's bill, filed to compel specific performance of a contract alleged to have been, made be tween her father and herself, whereby she was to live upon and farm the premises in controversy upon shares during his lifetime, and upon his death the land should become hers, was dismissed upon the hearing, and she has appealed. The question is entirely one of fact, and there is little important testimony, except that of the complainant and her husband upon one side and her parents upon the other. There is certainly no preponderance of evidence in complainant's favor, especially when we consider that her statement that the arrangement was well understood and frequently talked in the family is denied by her parents and her brothers and sisters. We are of the opinion, therefore, that the record does not justify a reversal of the decree of the learned circuit judge.\\nThe decree is affirmed, with costs.\\nMcAlvay, C. J., and Carpentr, Grant; and Moore, JJ., concurred.\"}"

mich/1500360.json

@@ -0,0 +1 @@
+"{\"id\": \"1500360\", \"name\": \"CULVER v. SOUTH HAVEN & EASTERN RAILROAD CO.\", \"name_abbreviation\": \"Culver v. South Haven & Eastern Railroad\", \"decision_date\": \"1906-05-24\", \"docket_number\": \"Docket No. 120; Docket No. 3\", \"first_page\": \"254\", \"last_page\": \"260\", \"citations\": \"144 Mich. 254\", \"volume\": \"144\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T20:36:09.499556+00:00\", \"provenance\": \"CAP\", \"judges\": \"McAlvay, Grant, Montgomery, and Moore, JJ., concurred.\", \"parties\": \"CULVER v. SOUTH HAVEN & EASTERN RAILROAD CO.\", \"head_matter\": \"CULVER v. SOUTH HAVEN & EASTERN RAILROAD CO.\\n1. Appeal and Error \\u2014 Decision on Review \\u2014 Former Review-Law of the Case.\\nThe decision of the court on error is the law of the case for all subsequent reviews of the same case.\\n3. Same \\u2014 Review\\u2014Questions Considered \\u2014 Exceptions\\u2014Necessity.\\nAlleged error of the trial court in overruling a motion for new trial cannot be considered in the absence of exception to the ruling.\\n3. Costs \\u2014 Appeal\\u2014Prolix Record and Brief.\\nWhere the record and brief on error are unnecessarily long because of the attempt of plaintiff in error to raise questions decided upon a former review of the case, plaintiff in error will be permitted on reversal to tax as costs the expense of printing only such parts of the record and brief as the court deems necessary to raise the questions open for review.\\non rehearing.\\n1. Master and Servant \\u2014 Personal Injuries \\u2014 Evidence \\u2014Question for Jury.\\nIn an action against a railroad company for injuries to a switeh man, evidence considered, and held, to present a question for the jury whether the place on the track where a witness made certain measurements was the place where plaintiff was injured. ^ j.\\n\\u20182. Same \\u2014Evidence\\u2014Admissibility \\u2014Conditions at Place op Injury.\\nPlaintiff claiming to have received his injury because of his having caught his shoe between a projecting fish-plate bolt anda spike in a tie, testimony of a witness as to measurements made from the spike hole after the accident, is not objectionable on the ground that the conditions were changed, as for the purposes of measurement they were the same.\\nError to Yan Bur\\u00e9n; Carr, J.\\nSubmitted February 13, 1906.\\n(Docket No. 120.)\\n(Docket No. 3.)\\nDecided May 24, 1906.\\nMotion for rehearing granted July 24, 1906.\\nReargued October 4, 1906.\\nFormer opinion reversed October 29, 1906.\\nCase by William Culver against the South Haven & Eastern Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.\\nAffirmed.\\nW. J. Barnard (Edward Maher, of counsel), for .appellant.\\nThomas J. Cavanaugh and L. A. Tabor, for appellee.\\nRehearing denied December 17, 1906.\", \"word_count\": \"2005\", \"char_count\": \"11213\", \"text\": \"Blair, J.\\nThis case has been previously before this 'Court, and is reported in 138 Mich. 443. Counsel for defendant then contended:\\n\\\" (1) The verdict was against the overwhelming weight of the evidence.\\n\\\" (2) That Culver was not in the exercise of ordinary care, being guilty of contributory negligence.\\n\\\" (3) That the defendant did not receive a fair trial, owing to misconduct.\\n\\\" (4) That the learned trial court erred in ruling upon evidence.\\n\\\" (5) That the learned trial court erred in charging the jury.\\\"\\nIn disposing of the case this court said:\\n\\\" 1 and 2 may be considered together. Was the verdict overwhelmingly against the weight of evidence? Can we say, as a matter of law, Culver was guilty of contributory negligence? Without going into details, we may say an examination of the record satisfies us the plaintiff presented a ease making it the duty of the trial judge to submit it to'a jury under proper instructions.\\n\\\"3. This assignment of error relates to the conduct of plaintiff's counsel during the taking of testimony and while presenting the case to the jury. We have no hesitancy in saying that if the conduct of Mr. Tabor, about which complaint is made, was the only improper conduct of counsel, we should reverse the case, and direct a new trial. The misconduct, however, was not confined to counsel upon one side. We do not feel it our duty to attempt from this record of nearly 300 pages to decide who-of the counsel was most to blame. We do say the conduct of Mr. Tabor on one side and Mr. Maher on the other, was such as ought not to be permitted in any court of record anywhere.\\n\\\"4. Did the court err in the admission of evidence? As a rule, he did not, but in one instance we think an error was made, which may have made a difference with the final result.\\n\\\"5. Did the trial judge err in his charge to the jury? He gave all of defendant's requests to charge which it was proper for him to give. . With one exception, we think the remaining portion of his charge was a correct statement of the law.\\\"\\nNotwithstanding this final determination of the law of this case, counsel for defendant now raise precisely the same questions, with a few additional ones, upon a record of 772 pages, including 330 assignments of errors, and present their argument in a principal brief of 194 pages and a reply brief of 76 pages.\\nThe error in the charge referred to in our previous opinion was corrected upon the present trial, and the only rulings of the court which are open to review upon this record are those relating to the admission of evidence and the conduct of counsel. We think the court erred in permitting the witness Johnson to testify to certain meas urements made from a spike hole long after the accident, without any showing that the condition of the track was the same as at the time of the accident. As this testimony was directed towards one of the most important issues of fact in the case, we feel constrained to reverse the case because of its reception.\\nNotwithstanding what was said upon the subject in the former opinion, counsel on both sides traveled outside the legitimate bounds of argument. We trust that upon the next trial of this case the circuit judge will, if necessary, adopt strenuous means to compel counsel to keep within their proper field of argument.\\nWe cannot consider the alleged errors of the court in overruling the motion for a new trial, for the reason that no exceptions were taken to such denial. Ginn v. Coal Co., 143 Mich. 84. The great bulk of this record and of the briefs of appellant is unnecessary in consequence of the prior decision of this court, and for that reason we shall limit appellant's taxation of costs for record and briefs to 100 pages of record and 30 pages of brief.\\nThe judgment is reversed, and a new trial granted, with costs to appellant as above limited.\\nMcAlvay, Grant, Montgomery, and Moore, JJ., concurred.\"}"

mich/1536826.json

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+"{\"id\": \"1536826\", \"name\": \"LEACH v. DETROIT ELECTRIC RAILWAY\", \"name_abbreviation\": \"Leach v. Detroit Electric Railway\", \"decision_date\": \"1902-01-07\", \"docket_number\": \"\", \"first_page\": \"286\", \"last_page\": \"290\", \"citations\": \"129 Mich. 286\", \"volume\": \"129\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T17:05:17.423847+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hooker, C. J., Moore and Grant, JJ., concurred.. Long, J., did not sit.\", \"parties\": \"LEACH v. DETROIT ELECTRIC RAILWAY.\", \"head_matter\": \"LEACH v. DETROIT ELECTRIC RAILWAY.\\n1. Trial \\u2014 Evidence\\u2014Failure to Except.\\nWhere plaintiff\\u2019s counsel, on an objection to a question asked by him and answered by a witness, stated that he would not insist on the question, and the defendant failed to except, an assignment of error based on the admission of such evidence will not he sustained.\\n2. Same \\u2014 Harmless Error.\\nWhere it was not disputed that a witness* for plaintiff was the conductor of the car in which plaintiff was a passenger, it was harmless error to allow him to testify that he said to a third person that he could tell him who was the conductor of the car.\\n3. Same \\u2014 Verdict on Former Trial.\\nWhere plaintiff\\u2019s counsel asked a witness if he had not stated that he had heard that plaintiff had recovered a verdict of $2,500 on a former trial, and the associate counsel, on objection made, stated that such was not the verdict, and the court directed the jury that the result of the former trial could have nothing to do with the case then being tried, the question was not prejudicial error.\\n4. Same \\u2014Street Railways \\u2014 Negligence\\u2014Argument oe Counsel.\\nA street-car conductor, called as a witness for plaintiff in an action against the company for personal injuries, testified, on cross-examination, that he was discharged for incompetency, and defendant introduced evidence that he was discharged for not ringing up fares. Plaintiff\\u2019s counsel argued that the company was remiss in leaving an incompetent man on the car. Held, that such statement was not prejudicial error as an argument that plaintiff\\u2019s injury resulted from the general incompetency of the conductor, but was a comment on the testimony affecting his credibility.\\n5. Same \\u2014 Instructions.\\nAn instruction that there was no evidence that the conductor was incompetent, and that defendant could not be held liable for employing him, was properly refused, so long as there was evidence of such incompetency, though the declaration did not rely upon the fact.\\nError to Wayne; Brooke, J.\\nSubmitted December 11, 1901.\\nDecided January 7, 1902.\\nCase by Angeline Leach against the Detroit Electric Railway for personal injuries. From a judgment for plaintiff, defendant brings error.\\nAffirmed.\\nThomas T. Leete, Jr., for appellant.\\nNavin & Sheehan (M. J. Lehmann, of counsel), for appellee.\", \"word_count\": \"1626\", \"char_count\": \"9296\", \"text\": \"Montgomery, J.\\nThis case was before this court at the October term of 1900. A judgment for plaintiff was reversed, and a new trial directed. 125 Mich. 373 (84 N. W. 316). The case has again been tried, and plaintiff has again recovered, and the proceedings are before us for review.\\nError is alleged upon the propounding of a question to plaintiff as to whether she had been able to pay her physician, and it is said that this was an effort to get before the jury the poverty of the plaintiff for the purpose of enhancing the damages. It appears that the question was asked and answered, and an objection noted, when plaintiff's counsel stated that he would not insist upon the question, and no -exception was taken. This is a sufficient answer to the assignment of error.\\nThe plaintiff produced as a witness one Babcock, the conductor who had charge of the car from which plaintiff fell, who gave testimony tending to-support the plaintiff's claim. Upon cross-examination the defendant sought to show, and did show, that the report given in by the conductor to the company stated the facts differently than the witness gave them on the stand, and the defense also showed on cross-examination that the witness had been discharged by the company. On redirect examination the witness was asked whether he had seen Dr. Hawkins about the case before he was discharged, and asked to state what he told him. The answer was: \\\" Mr. Hawkins was tell ing me about the accident, \\u2014 that he would like to find out who the conductor was, \\u2014 and I informed him that I could tell him who the conductor was.\\\" A motion was made to strike out this answer, and the court said, \\\"I will let it stand, in view of your cross-examination.\\\" Error is assigned upon this ruling. It is unnecessary to decide whether the case would come within the rule that a witness' testimony may be supported by showing that he had made statements in line with his testimony prior to an alleged contradictory statement, within the rule in Stewart v. People, 23 Mich. 63 (9 Am. Rep. 78), as we think it apparent at a glance that all the witness stated could not, by any stretch of imagination, be deemed to have damaged the defendant. It was not a matter in dispute as to who the conductor was on this car, and the fact that the witness manifested a willingness to tell Dr. Hawkins who the conductor was in no way bore upon the question of how the accident occurred, or whether there was any responsibility for plaintiff's injuries on the part of the company.\\nOn the cross-examination of the witness Thomas the following occurred:\\n\\\" Q. Did you tell Mr. Mainville, after your testimony on the last trial, in the city of Detroit, words of this import: You heard the old lady got a verdict for $2,500; you did all you could to prevent it; that you did pretty well yourself ; you got $10 for coming here and swearing, and your expenses ?\\n\\\"A. Not that way; no, sir.\\n\\\" Q. Did you make that statement, or words of that import ?\\n\\\"Mr. Leete: I object to that as incompetent and immaterial.\\n\\\" The Court: Take the answer.\\n\\\"Mr. Leete: Eor the further reason that it has the effect simply of bringing before this jury the result of the former trial.\\n\\\" The Court: The jury will pay no attention to that fact.\\n\\\"Mr. Lehmann: That was not the verdict in the other case. That is simply what he said about it. It wasn't the verdict.\\n' ' Mr. Navin: I have fixed the time and place for laying the foundation for the impeaching question.\\n\\\"Mr. Leete: I desire to object, and I take an exception to Mr. Lehmann's statement to your honor just now, upon the record.\\n' ' The Court: This jury will pay no attention whatever to what the result was on any former trial of this case. Simply try this case upon the testimony offered here, and upon nothing which occurred at any former trial. You may answer the question, witness. Mr. Leete, you may have an exception.\\\"\\nIt is urged by counsel that this is prejudicial, as it tended to get before the jury the result of the former trial. It will be noticed that the circuit judge very promptly informed the jury that the result of the former trial had nothing whatever to do with this trial; and, more than that, counsel for plaintiff stated at once, when the suggestion that that was the purpose was made, that the verdict on the former trial was not that stated in the question. It is very plain, therefore, that neither the purpose nor the effect was to give the jury to understand that the verdict was that stated in the question.\\nBut it is said the most damaging error is shown in connection with a statement of plaintiff's counsel. As before stated, when the witness Babcock was on the stand, he was cross-examined as to having been discharged by the company. He testified that he was discharged for incompetency. Defendant's counsel sought to show by the witness that his discharge was for not ringing up fares, but the witness insisted that the charge against him was being incompetent. On the argument to the jury, plaintiff's counsel, in the course of the argument, made the following statement:\\n\\\"Now, let us see what other testimony they have got here. Why, they have got Mr. Stanley on here. What for ? Babcock told you, gentlemen, that he was tried for being incompetent. Mr. Stanley goes upon the stand to say that that was the charge against Babcock, just as Babcock said; but that he was incompetent in the matter of not ringing up as many fares as there were passengers in the car. Well, if he was incompetent, this railroad company has been very remiss in its duty to the thousands of citizens that it carries upon its cars, in leaving an incompetent man upon a street car one minute.\\\"\\nIt is claimed that this injected into the case a new issue, as there was no claim in the declaration that the conductor was incompetent. We do not think this language should be construed as an argument to the jury that the plaintiff's injuries resulted from the general incompetency of the conductor, but we think it was rather in the nature of comment upon the force of the testimony as affecting the credibility of the witness produced by the plaintiff.\\nComplaint is also made of the refusal of the court to give the following request:\\n\\\" There is no evidence in this case that the conductor in charge of the car was incompetent, and the defendant cannot be held liable in this action for continuing him in its employment.\\\"\\nThe refusal to give this request was not error. It is now urged that the fault of the conductor vyas not the basis of the plaintiff's action, as shown by the declaration. But the request was not put upon that ground, but asks' an instruction that there was no evidence showing incompetency of the conductor. There was evidence tending to show that the conductor was incompetent, and for this reason the trial judge properly refused the request.\\nWe discover no error in the record, and the judgment will be affirmed.\\nHooker, C. J., Moore and Grant, JJ., concurred.. Long, J., did not sit.\"}"

mich/1538498.json

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+"{\"id\": \"1538498\", \"name\": \"STONER v. RIGGS\", \"name_abbreviation\": \"Stoner v. Riggs\", \"decision_date\": \"1901-07-19\", \"docket_number\": \"\", \"first_page\": \"129\", \"last_page\": \"134\", \"citations\": \"128 Mich. 129\", \"volume\": \"128\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T22:57:35.970064+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other Justices concurred.\", \"parties\": \"STONER v. RIGGS.\", \"head_matter\": \"STONER v. RIGGS.\\n1. Actions \\u2014 Incompetents\\u2014Guardians Ad Litem.\\nThe appointment of a guardian ad litem for an incompetent defendant in an action at law is unnecessary where an appearance has been entered by his general guardian as guardian and attorney.\\n2. Accounts \\u2014 Mutuality\\u2014Statute oe Limitations.\\nWhere plaintiff had charge of the loaning and collecting of defendant\\u2019s money for a series of years, and, on submitting an account of the business, defendant promised to pay him for his services, the claim therefor became a part of the mutual account, unaffected by the general statute of limitations, though it was not entered on the boobs, and the value of the services was not agreed upon.\\n3. Trial \\u2014 Evidence\\u2014Harmless Error.\\nIn an action for services in conducting defendant\\u2019s business, plaintiff was cross-examined at length as to certain checks drawn by him, but the checks themselves, not being included in the bill of particulars of set-off, were excluded, after defendant\\u2019s refusal to amend. Reid, not prejudicial.\\n4. Same \\u2014 Instructions\\u2014Preponderance of Evidence..\\nAn instruction defining the rule as to preponderance of evidence as meaning \\u201csimply that the evidence offered in favor of a proposition must be of a little better quality than that opposed to it,\\u201d if inaccurate, was not prejudicial to defendant, on whose behalf no direct testimony had been introduced.\\nError to Genesee; Wisner, J.\\nSubmitted June 6, 1901.\\nDecided July 19, 1901.\\nAssumpsit by Cicero J. K. Stoner against Fred F. Riggs for services performed and moneys expended. From a judgment for plaintiff, defendant brings error.\\nAffirmed.\\nClarence Tinker (Durand & Carton, Osborn & Mills, and J. L. Topping, of counsel), for appellant.\\nW. JEJ. Scott, for appellee.\", \"word_count\": \"1705\", \"char_count\": \"9912\", \"text\": \"Hooker, J.\\nThe plaintiff brought this action against his wife's father, an incompetent, under guardianship, serving process upon the defendant. . His guardian entered his appearance as attorney and guardian, and conducted the defense, and appears in this appeal. The items for which plaintiff claims a right to recover grow out of dealings which plaintiff alleges to be mutual. They are given in the bill of particulars, as follows:\\nThis action is brought to recover the balance of the following account:\\nFor services rendered from October 27, 1877, to July 30,1894, in oaring for the property, both real and personal, loaning and collecting, \\u00e9tc., for F. F. Riggs, at $60 per year........-.......$1,000 00\\nTo cash, one-half the family expenses from October 17, 1894, to October 6, 1895_________________________________ 201 00\\nTo cash, the family expenses from October 6, 1895, to January 4, 1896, 13 weeks, less $8.70..._________________ 93 19\\nTo cash, the family expenses from January 4, 1896, to. June 20,1897, 24 weeks. 179 21\\n-$1,473 40\\nTo care and nursing by self and wife, from March 11, 1895, to June 20, 1896, 66 weeks, 16 weeks, at $10___________ $160 00\\nLiving in Riggs'house, 50 weeks, at $7.. 350 00 \\u2022\\n- 510 00\\nThen followed fourteen items, giving dates, in 1896 and 1897, amounting to $41.60, making a total of $2,025. A claim for interest, amounting to $1,358.15, was included in the bill.\\nA bill of particulars of set-off included alleged payments of money to plaintiff in defendant's behalf at different dates in 1878, 1880, and from 1882 to October 17, 1894. A notice of the statute of limitations was given and is relied on.\\nIn support of his claim, the plaintiff testified that he had charge of defendant's business affairs, by arrangement and employment, from October 27, 1877, to July 30, 1894, during which time he loaned and received money for him, on many occasions, while he was absent in Colorado, and that during the same period he kept an account of the business, which he submitted to the defendant, showing a balance of the trust funds of $430 in his hands, and that defendant then promised to pay him for his ser- vices when he should sell his mine in Colorado. The amount was not mentioned, or payment of the $430 demanded, and the jury probably found that it was treated as an item to be applied on the service. He also testified that about October 17, 1894, he moved into the house with the defendant, under an arrangement that they were to share living expenses equally, and that they lived thus for several years, and that the defendant owes upon yearly balances for moneys expended in that transaction, also for care and nursing by plaintiff and wife in 1895, at a time when defendant was suffering from a broken leg, and for medicines and various other things.\\nThe defendant appealed from a verdict in favor of plaintiff, and has since died.\\nThe briefs of defendant's counsel state that:\\n\\\"Concerning the latter arrangement there was little controversy as between the parties. The contention made at the trial concerned the claim for services said to have been rendered between October, 1877, and July, 1894, and the testimony admitted and rejected with reference thereto, and the instructions of the court to the jury.\\\"\\n\\\"I have carefully examined the record, and there are only two questions in it: First, whether the account, as-made by Mr. Stoner, is a continuing account, or whether the same is governed by the statute of limitations; second, whether it is necessary to have a guardian ad litem appointed in a case like this.\\\"\\nWe feel justified, therefore, in treating the claim for services as the only one in dispute.\\nAt the common law, a distinction existed between actions at law and in equity.\\n\\\"At law, a lunatic defends in the same manner as ordinary persons. Process is served upon him personally; then, if an infant, he appears by guardian, and, if of full age, by attorney. * . In suits in equity the practice is different. In .those he defends by guardian ad litem, and his committee is appointed such guardian as of course, unless there is no committee, or the committee is in interest adverse to him in the suit.\\\" Van Horn v. Hann, 39 N. J. Law, 213.\\nSee Bearinger v. Pelton, 78 Mich. 114 (43 N. W. 1042), where a guardian ad litem was held necessary in a foreclosure case in chancery, where the defendant was an infant. See, also, 3 Comp. Laws, \\u00a7 10461 et seq., which seems to require the appointment of a guardian ad litem, in all suits against infants. There seems to be no such statute applicable to the insane or non compos mentis. It is said that in most States there need be no guardian ad litem, if the infant have a probate or other authorized guardian competent to act; and the case of Bearinger v. Pelton is treated as involving a statutory exception. Woerner, Guardianship, p. 66, \\u00a7 21. The same author says (section 145) that \\\" there is little, if any, difference between guardians ad litem for minors and those for insane litigants. The latter defend by general guardian or committee, if one has been appointed,\\\" etc. See, also, 9 Enc. Pl. & Prac. p. 937; 10 Enc. Pl. & Prac. p. 1229; King v. Robinson, 33 Me. 114 (54 Am. Dec. 614). In this case the guardian, who was an attorney, appeared in both capacities, and we may assume that it was with the \\u2022approval of the court, if such approval was necessary. We have considered this question, although no exception was taken upon the trial.\\nUpon the question whether the item for services was mutual, we find no authorities cited in support of the proposition that such item must be considered by itself, .and not in connection with the moneys received and paid \\u2022out by the plaintiff. We see no reason for so holding. The fact that it was not made a book item, while the others were, is not controlling, and the alleged agreement to pay for the services, made in connection with defendant's examination of plaintiff's account of the fund in his hands, would seem to make it such within the rule laid \\u2022down in the case of Kimball v. Kimball, 16 Mich. 218. See, also, Campbell v. White, 22 Mich. 186, 187; White v. Campbell, 25 Mich. 471; In re Hiscock's Estate, 79 Mich. 536 (44 N. W. 947); Lester v. Thompson, 91 Mich.245 (51 N. W. 893). The court did not err in refusing to take from the jury this question, and the question of the statute of limitations.\\nError is assigned upon the exclusion of a large number of checks relating to the business of defendant during the period that the plaintiff had it in charge. It was admitted that the items covered by them were not included in the= bill of particulars, and defendant declined to amend his-bill of particulars when told that by so doing they would be made admissible. They were present, and plaintiff' was examined at length upon many, if not all, of them. We are unable to see where the defendant suffered injury-through their exclusion.\\nWe may say the same in relation to the court's charge-upon the preponderance of evidence. It was as follows:\\n\\\" I have stated to you in what a preponderance consists. It is simply that the evidence offered in favor of a proposition must be of a little better quality than that opposed to it. You are to canvass all the evidence in the case, and, if you act in favor of the defendant [plaintiff], it must be-because you find it preponderates in his favor; but you have no right to cast aside testimony upon any particular point, unless you find it is disputed in some way, either by direct testimony or circumstantial evidence. In this case-there is no direct testimony offered in favor of the defendant, but the defense is claimed to exist by reason of certain circumstances that have been shown in the case, and that matter is entirely for your consideration; the court, has nothing whatever to do with it.\\\"\\nThe other points discussed in the briefs relate to portions-of the charge in which we find no error.\\nThe point that the item for nursing should not have-been submitted to the jury does not appear to be properly raised, and the same may be said of the denial of a motion: : for new trial.\\nThe judgment is affirmed.\\nThe other Justices concurred.\"}"

mich/1543855.json

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+"{\"id\": \"1543855\", \"name\": \"KAMMERER v. MORLOCK\", \"name_abbreviation\": \"Kammerer v. Morlock\", \"decision_date\": \"1900-12-04\", \"docket_number\": \"\", \"first_page\": \"320\", \"last_page\": \"324\", \"citations\": \"125 Mich. 320\", \"volume\": \"125\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T00:12:03.160487+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other Justices concurred.\", \"parties\": \"KAMMERER v. MORLOCK.\", \"head_matter\": \"KAMMERER v. MORLOCK.\\n1. Executors and Administrators \\u2014 Sale op Real Estate \\u2014 Fraud.\\nWhere a sale of real estate by an administrator under order of the probate court was properly advertised, and many bidders were present, and the sale was confirmed by the court, the fact that property which had been appraised at $1,100 was purchased by ,the administrator\\u2019s stepfather for $900, and that 17 months thereafter the purchaser conveyed to the administrator, and that at the same sale other property, appraised at $700, was sold for $535, was not sufficient evidence of fraud to warrant setting aside the sales.\\n2. Same \\u2014 Appointment\\u2014Notice op Hearing \\u2014 Discrepancy in Dates \\u2014 Jurisdictional Defect.\\nWhere the order and notice of hearing on a petition for the appointment of an administrator de bonis non fixed the time for the hearing as \\u2018 \\u2018 Monday, the 9th day of August next,\\u201d and the 9th day of August was not Monday, but Friday, and the order appointing the administrator was made on Monday, August 5th, the discrepancy in the date was fatal to the jurisdiction of the court, and hence all subsequent orders licensing and confirming sales of real estate by such administrator were void.\\n3. Same \\u2014 Bill to Set Aside Sale \\u2014 Minor Heirs \\u2014 Limitations.\\n3 Comp. Laws 1897, \\u00a7 9128, provides that a suit by a minor heir to set aside an administrator\\u2019s sale of real estate must be brought within five years after he becomes of age. Held, that, where a sale was void because of the illegal appointment of the administrator by whom it was made, a bill to.set aside such sale could be maintained only by those heirs of the deceased who had not acquiesced in such sale for more than five years after arriving at their majority.\\nAppeal from Berrien; Coolidge, J.\\nSubmitted October 5, 1900.\\nDecided December 4, 1900.\\nBill by Mary Kammerer and others against Frank Morlock and others to set aside an administrator\\u2019s sale. From a decree dismissing the bill, complainants appeal.\\nReversed.\\nGeorge W. Bridgman and Edward Bacon, for complainants;\\nO\\u2019Hara & O\\u2019Hara, for defendants Morlock.\\nN. A. Hamilton, for other defendants.\", \"word_count\": \"1635\", \"char_count\": \"9661\", \"text\": \"Lons, J.\\nThis bill was filed to set aside certain administrator's sales of two parcels of real estate in the city of St. Joseph. One parcel is designated in the bill as the \\\"Dwelling-House Property,\\\" and the other as the \\\"Boarding-House Property.\\\" They both belonged to Peter Breidinger at the time of his death, June 28, 1874. He left surviving him his widow and the sis complainants, his children and heirs at law, who were born, respectively, as follows: Mary Breidinger (now Kammerer), September 14, 1861; Sophia Breidinger (now Weist), July 22, 1865; Peter Breidinger, May 3, 1867; Lizzie Breidinger (now Lorenz), February 15, 1869; Frank Breidinger, April 3, 1871; Nicholas Breidinger, March 5, 1874. Frank Morlock, one of the defendants, was appointed administrator of the estate, July 14, 1874. He filed his inventory and appraisement of said estate, showing the dwelling-house property appraised at $1,000, and the boarding-house property at $1,500. There was certain other real estate, which it is not necessary here to state. The personalty was.appraised at $245. Settlement was had in 1876, before the probate court, the account showing payment to outside creditors of claims originating before the death of Peter Breidinger amounting to $1,500, and the account closes with the statement: \\\"Balance due administrator, $68.46; due creditors from estate, $800.\\\"\\nThe widow and her children continued in possession of the two properties until her death, in June, 1878. In July of that year, Frank Morlock filed a petition to be appointed administrator de bonis non of the Peter Breidinger estate, and the following month was duly appointed as administrator de bonis non. Appraisers were appointed, as well as commissioners to audit claims. The appraisers filed their inventory, stating the valuation of the boardinghouse property to be $1,100, and the dwelling-house property to be $700, and the personal property $111.50. In August, 1878, Morlock filed in the probate court his petition for license to sell both parcels of real estate, stating that the amount due to creditors was $1,300. In September, Conrad Kammerer, on petition of Morlock, was appointed guardian of the children. The two pieces of property were sold January 11, 1879, upon an order of the probate court, for the purpose of payment of the debts. The dwelling-house property, according to the report of the administrator, was sold for $525, and the boardinghouse property for $900; the sale of the boarding-house property being for one-third of the purchase price in cash, and the remainder secured by mortgage on the premises sold, payment to be made within two years from date of sale, with interest at 7 per cent. A report made by the commissioners on claims was filed in February, 1879, showing claims allowed amounting to $1,090.21. In May, 1881, Kammerer resigned his guardianship of the children, and defendant Morlock was appointed in his place, although it is claimed he never took the oath or filed any bond or made any report as such guardian; but it is claimed by the defendant that he went on paying the debts as administrator, and as guardian of the children paid to Mary and Sophia $97 each, and in May, 1888, paid two more of the children $103.75 each, and took their receipts in full for their share of the estate.\\nIt appears from the testimony that Morlock, as administrator, sold the dwelling-house property to Christian Melsheimer, and the boarding-house property to his step father, Christian Stein. In. June, 1880, Stein and wife conveyed their part of the property to defendant Morlock. It is claimed that this sale to Stein was a sham, and made bythe administrator for the purpose of acquiring title in that property to himself. As to the sale of the dwelling-house property, it is claimed that was fraudulent, in that it was sold for less than half its value. The court below found against these contentions; and, we think, very properly. There is no evidence in the record which would justify us in setting aside the sales on the ground of fraud. The dwelling-house property, which sold for #525, was inventoried at #700. The boarding-house property, which sold for #900, was inventoried at #1,100. The sale was advertised, and many bidders were present, among them relatives of the Breidinger family. One Nicholas Kibler, grandfather of complainants, made a bid on the boardinghouse property, but decided not to take it, and paid #100 to be released from his bid; and, so far as this record shows, defendant Morlock has never claimed any interest in that property since.\\nIt is claimed, however, that Stein was without means to pay his mortgage. The record shows that he held the property until June, 1880, when he deeded it to Morlock. According to the account of Morlock, in the May previous he had received on the Stein mortgage #655.65, and the mortgage was discharged May 31, 1880. The sale made by Morlock of these two pieces of property was duly reported to the probate court, and confirmed by that court, in February, 1879.\\nIt is further claimed by complainants that the order appointing Morlock administrator cle bonis non is void for want of publication and notice required by 3 Comp. Laws 1897, \\u00a7 9310; that the order and notice of hearing for the appointment fixed the time for hearing as August 9, 1878; that the order read that the hearing was to be had on \\\"Monday, the 9th day of August next,\\\" while Monday was not the 9th day of August, but the 5th day; that this was fatal to the jurisdiction of the probate court; and that all subsequent orders licensing the sale of real estate, and confirming the report of such sales, were void for that reason. The original notice of hearing was for Monday, which was August 5th, and the hearing was presumably had on that day. This was not the date fixed in the order for the hearing, and an appointment could not be made on the 5th, as the order stated that the hearing would take place on the 9th. We think the discrepancy in the date was fatal to the jurisdiction of the probate court, and that all subsequent orders licensing the sale of real estate, and confirming the report of such sales, were void. Gillett v. Needham, 37 Mich. 143. It follows that the sales of those two parcels must be set aside.\\nThere is not sufficient proof in this record by which this court can enter upon an accounting between the parties. The decree below will be reversed, and the case referred back to the court below, where an accounting may be had. It appears that but two of the complainants, to wit, Frank and Nicholas Breidinger, can take advantage of this error, and that they alone can maintain this bill. Section 6075, 2 How. Stat.; also section 9128, 3 Comp. Laws 1897. The other complainants had rested upon their fights more than five years after becoming of age. Therefore the sales can be opened only in the interests of these two. The accounting will be had on the basis of their interest in the rents and profits of the property. It has been seen, however, that the administrator has paid, under the orders of the probate court, debts against the estate, his own debt included. It would be inequitable to say that these complainants should have their shares in the property, together with rents and profits, unless it be also provided that the administrator be repaid the amount of moneys, with interest thereon, which he has paid out upon the debts of the estate. It is therefore decreed accordingly. These two complainants will recover their costs of this court.\\nThe other Justices concurred.\"}"

mich/1543931.json

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+"{\"id\": \"1543931\", \"name\": \"DUDLEY v. CONELY\", \"name_abbreviation\": \"Dudley v. Conely\", \"decision_date\": \"1900-12-04\", \"docket_number\": \"\", \"first_page\": \"300\", \"last_page\": \"306\", \"citations\": \"125 Mich. 300\", \"volume\": \"125\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T00:12:03.160487+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other Justices concurred.\", \"parties\": \"DUDLEY v. CONELY.\", \"head_matter\": \"DUDLEY v. CONELY.\\nSureties \\u2014 Replevin\\u2014Action on Bond \\u2014 Defenses \\u2014 Irregularities in Original Suit.\\nSureties upon a replevin bond cannot escape liability by setting up in defense to an action on the bond mere irregularities in the proceedings in the replevin suit. So held where the defenses interposed were that the time for settling a bill of exceptions on an appeal in the original suit was extended beyond the time stipulated, and that on the last trial it was consolidated with another cause.\\nError to Wayne; Carpenter, J.\\nSubmitted October 3, 1900.\\nDecided December 4, 1900.\\nAssumpsit by Harlan J. Dudley and Charles P. Collins against Clarence Conely and Oscar Schloeman, co-partners as Clarence Conely & Co., princip\\u00e1is, and Christian Hosbach and William Kemter, sureties, upon a replevin bond. From a judgment for plaintiffs on verdict directed by the court, defendants bring error.\\nAffirmed.\\nTarsney & Fitzpatrick, for appellants.\\nFCeena & Lightner, for appellees.\", \"word_count\": \"2074\", \"char_count\": \"11811\", \"text\": \"Long, J.\\nSuit on replevin bond. The case in which the bond was given was commenced in the circuit court for Wayne county August 14, 1894, in which Clarence Conely and a copartner were plaintiffs, and Collins and Dudley defendants. In October, 1895, verdict was given, and judgment rendered thereon in February following. That case was removed to this court, whero it was decided in 1896 (Conely v. Dudley, 111 Mich. 122 [69 N. W. 151]), and the judgment reversed. In December, 1897, the case was again tried, and a verdict directed by the court below for the plaintiffs. Time to move for a new trial and settle a bill of exceptions was extended under stipulation, and from time to time thereafter the time to settle bill of exceptions was extended, as defendants contend, up to September, 1898. The bill of exceptions was signed and filed October 25, 1898. Plaintiffs contend that the bill was settled within the date covered by the stipulations. The case was removed to this court, where it was decided March 14, 1899, and the judgment of the court below reversed. Conely v. Collins, 119 Mich. 519 (78 N. W. 555, 44 L. R. A. 844). The case was again tried in the circuit court before a jury, who returned a verdict in favor of defendants, under the charge of the court, for $362.13.\\nIt is contended here by defendants that, when that case was tried in the circuit court, the court permitted it to be consolidated with another 'case, and that but one jury sat in both cases, while plaintiffs contend that there was no consolidation. Whatever may have been the order of the circuit court as to the consolidation, it appears, upon the journal of the court that separate verdicts were rendered in each case; and the only proof that there was a consolidation is a memorandum upon the short-book kept by the clerk. It appears in the present case that the bond in replevin was signed by Conely & Co. as principals, and William Kemter and Christian Hosbach as sureties, and was for the sum of $599.30. This replevin bond was in the usual form, running to the coroner of the county, and was assigned by him to the plaintiffs in this case. The plea was the general issue, with notice that defendants Hosbach. and Kemter would insist in their defense that they had been released and discharged of and from all liability upon said bond as sureties:\\nFirst. Because of the expiration of the time in which to settle bill of exceptions on the second trial, as such time was extended beyond the time stipulated.\\nSecond. Because of the order consolidating both cases on the third trial.\\nThere is some conflict of testimony as to whether the bill of exceptions was settled within the time stipulated, and it is contended by plaintiffs' counsel that there was no proof in the case, except the short-book, that the. two cases were consolidated. It is further contended that, the journal entry showing separate verdicts, the case must be regarded as having been tried as a separate case.\\nEven if defendants' counsel be correct in saying that the bill of exceptions was settled after the time expired under the stipulations, and that these two cases were tried as one, we do not think their contention can prevail that such facts would discharge the sureties on the bond. By the bond itself, the defendants promised that:\\n\\\"If the said defendants shall recover judgment against them [Conely & Co., plaintiffs in the replevin suit], then, if the said Clarence Conely and Oscar Schloeman, plaintiffs, shall return the said property, if return thereof be adjudged, and shall pay to the defendants all such sums of money as may be recovered by such defendants against them in the said action, then the above obligation to be void; otherwise to remain in full force and virtue.\\\"\\nThe defendants herein took the property from the present plaintiffs, and judgment has been rendered in favor of the obligees in the bond.\\nCounsel for defendants rely upon Evers v. Sager, 28 Mich. 47; Fish v. Barbour, 43 Mich. 19 (4 N. W. 502); Bullock v. Taylor, 39 Mich. 137 (33 Am. Rep. 356); People v. Brown, 2 Doug. 9; Bolton v. Nitz, 88 Mich. 354 (50 N. W. 291). We think none of these cases sustains their contention. In the first the surety upon an appeal bond from justice's court was held to be released because, by stipulation between the parties, the declaration was amended in the circuit court by claiming an amount of damages beyond the jurisdiction of the justice. By this amendment the surety became liable to a larger amount than when the bond was executed by him, and it was properly claimed there that, in effect, the suit became a new suit in the circuit court; and it was held that the defendant, by his consent to the amendment, could not bind the sureties on the appeal bond. In Fish v. Barbour, supra, the action was on a bail bond in a capias proceeding. An amended declaration was filed in the case, so as' to describe the fraudulent representations differently from the first declaration by stating different localities and amounts of payment made by the plaintiff. It was held that the variance was fatal, and the sureties on the bond could not be made liable. In Bullock v. Taylor, supra, it was held that a surety for the payment of a promissory note was not bound to perform a collateral agreement between the parties, to wit, to pay attorney's fees. In People v. Brown, supra, it was held that an alteration in a bond after it had been signed by some of the sureties, and without their consent, released them. In Bolton v. Nitz, supra,, it appeared that by stipulation of the parties in a replevin suit, and without the consent of the sureties on the bond, the writ was amended .so as to describe other property* and the declaration followed the amended writ. It was held that the sureties were not liable for the amount of a judgment obtained upon that declaration.\\nThe matters complained of by defendants' counsel, if they exist as claimed, amount merely to irregularities, which do not go to the jurisdiction. There is no claim that there was any fraud or collusion by which the rights of the defendants were affected. The judgment is in the usual form of replevin. This is not like a case where a surety is simply to pay money if the principal fails to do so, but is a bond given in the course of a suit; and in such case the surety submits himself to the acts of the principal, and to the judgment as itself a legal consequence falling within the suretyship. 2 Black, Judgm. \\u00a7 587, 671.\\nIn the case of Robertson v. Davidson, 14 Minn. 554, the action was upon a replevin bond; and the sureties claimed that the judgment in the replevin case, which was not in the ordinary form of a judgment in an action of replevin, but was in the usual form of a judgment for the recovery of money only, released the sureties from their liability on the bond. It was said by the court:\\n\\\"The undertaking is not collateral in its nature. It is in effect an affirmative obligation on the part of the signers of it to return the property to the defendant in the replevin action upon a judgment to that effect, and to pay him such sum as may for any cause be recovered against the plaintiff in that action. By the terms of the instrument, therefore, upon the recovery of the judgment by the defendant in the action of replevin in the district court, the signers of the undertaking became liable to Robertson upon that instrument. We have already seen that the undertaking given by the defendants in this action is, as between them and the plaintiff, an original obligation, and the defendants were not sureties, but original promisors or obligors. The principles applicable to sureties, therefore, do not apply in this action. By the terms of the undertaking, the defendants agreed and became liable not only to return the property, if a return was adjudged, but to pay to the plaintiff such sum as might for any cause be recovered against the defendant in the action of replevin. It is true, the correct and usual form of judgment in replevin is in the alternative, for a return of the property or for the value thereof. The judgment as entered in this case, therefore, is irregular; but it is irregular only, and not void. Its regularity cannot be impeached or inquired into collaterally. It cannot, therefore, be attacked in this action. Gallarati v. Orser, 4 Bosw. 105. The defendants, therefore, are liable on the undertaking for the amount recovered in the action of replevin, and the plaintiff is entitled to judgment therefor.\\\"\\nIn Wells, Repl. \\u00a7 433, after stating that an alteration in the bond would release the surety, the author continues:\\n\\\"Nevertheless the sureties are bound by all the steps which their principal may take in good faith for the success of his suit in court, and are bound by the result of that suit. If the court have jurisdiction, the sureties are bound by such order as it may make in the case; it being the essence of the contract that the surety is answerable for his principal's conduct in the suit before judgment.\\\"\\nSee, also, Mason v. Richards, 12 Iowa, 74.\\nIn Clinton v. Laning, 73 Mich. 284 (41 N. W. 424), which was an action on a liquor bond, it was held that the sureties could not retry the original suit upon the merits; that they could only show that the judgment was not rendered by a court of competent jurisdiction, or that it was void for fraud or collusion.\\nIn Clinton v. Rice, 79 Mich. 354 (44 N. W. 790), in speaking of its opinion in Clinton v. Laning, the court said:\\n\\\"It was held in this court in Clinton v. Laning that such judgment was binding upon Rice and Potter, the sureties on the bond; the express condition of such bond being that they would pay any judgment recovered against their principals.\\\"\\nIn Gill v. Backus, 108 Mich. 417 (66 N. W. 347), the action was debt upon a bond given for the release of property which had been attached under' the log-lien law. The defendant, being a surety upon this bond, contended that, since in the lien case the amount of the lien in favor of plaintiff was less than $100, judgment should have been entered for defendant in that case for costs, and that the judgment in the lien case granting plaintiff costs was no binding upon the sureties, because it was contrary to the statute. This court held that such a defense could not be maintained. It was said:\\n\\\"The defendant Backus took no steps to review the judgment in the attachment case, and, as the bond undertakes to pay the judgment, neither Backus nor the sureties can question tbe judgment, unless it is void in whole or in part upon its face.\\\"\\nWe think it is too well settled that sureties upon replevin bonds cannot escape liability upon the bond by mere irregularities in the proceedings in the original case to need further comment here.\\nThe judgment must be affirmed.,\\nThe other Justices concurred.\"}"

mich/1545612.json

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+"{\"id\": \"1545612\", \"name\": \"RAWLINSON v. SHAW\", \"name_abbreviation\": \"Rawlinson v. Shaw\", \"decision_date\": \"1900-05-29\", \"docket_number\": \"\", \"first_page\": \"340\", \"last_page\": \"344\", \"citations\": \"124 Mich. 340\", \"volume\": \"124\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T20:59:42.098286+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other Justices concurred.\", \"parties\": \"RAWLINSON v. SHAW.\", \"head_matter\": \"RAWLINSON v. SHAW.\\nArbitration and Award \\u2014 Church Discipline.\\nWhere members of a church submit a business difference to a board of arbitrators chosen in accordance with the discipline of the church, without providing that the award shall be final, the one favored in the award will not be permitted, after a ruling by the church authorities that the award is appealable, to contest the ruling, and enforce the award in the courts.\\nError to Kent; Adsit, J.\\nSubmitted April 12, 1900.\\nDecided May 29, 1900.\\nAssumpsit by John W. Rawlinson against Solomon B. Shaw upon an award by arbitrators. From a judgment for defendant, plaintiff brings error.\\nAffirmed.\\nOutcheon & Swarthout, for appellant.\\nWalker & Fitzgerald {Myron H. Walker of counsel), for appellee.\", \"word_count\": \"1554\", \"char_count\": \"9091\", \"text\": \"Moore, J.\\nThis case has been here once before. It is reported in 117 Mich. 5 (75 N. W. 138). A reference to the reported case will make it unnecessary to state some things here that would otherwise be necessary.\\nUpon the trial, testimony was given tending to show that the parties, in compliance with the provisions of the discipline of the church of which they were both members, submitted their differences to a board of arbitrators selected in accordance with the provisions of the discipline. An award was made as stated in 117 Mich. 5. It is claimed by defendant that the terms of this award were complied with by the parties to it, but that afterwards the plaintiff was dissatisfied with it, and appealed to the quarterly conference, where the defendant protested against setting the award aside. His protest was overruled, and a second award was made. This award was satisfactory to the plaintiff, but was not to the defendant, who appealed to the presiding elder, and through him to the quarterly conference. The presiding elder was of the opinion that not more than two awards could be had, but advised defendant that he had a right to appeal from his decision to the presiding bishop of the annual conference. This was done. Bishop Walden was of the opinion that an appeal would lie from the second award to the quarterly conference, and so notified the presiding elder, and both parties to this proceeding were so notified. A meeting of the quarterly conference was called, before whom both parties appeared. The plaintiff claimed that Bishop Walden was in error in ruling that a third arbitration could be had. After one or two adjournments, on the 13th of November, 1896, the quarterly conference decided to grant a new arbitration. The plaintiff was not satisfied with this conclusion, and soon thereafter brought this suit. A trial was had before a jury, who returned a verdict in favor of defendant.\\nUpon the trial, in addition to the things above stated, several articles of the discipline of the church were introduced in evidence. A letter from Bishop Walden to the presiding elder, dated November 13, 1896, was also put in evidence, containing, among other things, the following language:\\n\\\"The bishops have agreed that, when an award has been made in a case submitted to arbitration in a disciplinary way, the award is final, unless the parties themselves agree to have a second arbitration.. I was misled by the reference made to an erroneous statement in Bishop Merrill's Digest,\\u2014 correct under former provisions of the discipline, but not now. If a third hearing has been had, and the result is satisfactory to Brothers Shaw and Rawlinson, the matter had better end there; but I presume that Brother Shaw can claim the first award, notwithstanding the subsequent irregularities.\\\"\\nThe circuit judge was of the opinion that, under the rules of the church, the defendant had a right to appeal from the second award; that he made his appeal, which was allowed by the bishop and the quarterly conference; and that plaintiff could not recover upon the second award. The court, however, submitted to the jury the questions raised by the proofs under the count in the declaration on the contract, and allowed them to pass upon the controverted questions of fact in relation thereto. It is the claim of the plaintiff that the second award was valid, that the attempt to appeal therefrom was irregular, and that he is entitled to recover thereon. Counsel in. the brief say:\\n\\\"This court will not find it necessary to the proper determination of this case to go into the tortuosities of the church law touching the question of the validity of this award. As will be seen in later paragraphs of this brief, the church lawyers are themselves lost in this mazy labyrinth, and cannot agree either with each other or with themselves as to what the ecclesiastical law is upon the question of appeals from awards. The main fact is that here is an award that answers all the requirements of a common-law award. Here was a matter of business difference (not an ecclesiastical difference or question, be it noted), referred to named arbitrators pursuant to a submission signed by both parties. There were no reservations whatever in the submission. No provisions for a review or appeal are found in it. The only reference to the church was that the arbitrators were chosen in accordance with the discipline, viz., two by each party, the four choosing the fifth, the five being members of the church. Both parties were represented by counsel, witnesses testified for and on behalf of both parties, documents were offered in evidence, arguments were made, and the award was rendered in writing, signed by all five arbitrators. The award is final and certain. There is not a word in the record of any fraud, partiality, corruption, mistake, or misconduct on the part of any of the arbitrators. The court expressly charged that there was no duress. On these facts, we claim plaintiff is entitled to a judgment; for this court has nothing to do with appeals made from a business arbitration, such as this, to ecclesiastical judicatures. The decisions and awards of tribunals created by some other organization than the laws of the land are subject to be reviewed and examined, so far as the legal rights of the parties are concerned, by the judicial tribunals of the State,, in the same manner that the awards of other arbitrators are reviewed and examined. Savannah Cotton Exchange v. State, 54 Ga. 668.\\\"\\n\\\"An arbitration and award are none the less binding because made pursuant to the regulations of a church to which the parties belong. Payne v. Crawford, 97 Ala. 604 (11 South. 725).\\\"\\nIt is true, the law favors the- settlement of disputes by arbitration; but the arbitration must be final before it can be enforced. The record discloses that the parties did not undertake either a common-law or a statutory arbitration. It was entered into because required by the rules of the church of which they were both members. The submission was a very brief paper, reading:\\n\\\"In the matter of a business difference between the parties hereunto subscribing, it is hereby submitted to the following persons, chosen in accordance with the discipline of the Methodist Episcopal Church, viz.: G. A. Buell, J. S. Valentine, W. G. Beckwith, O. R. Wilmarth, C. A. Shackleton.\\n[Signed] \\\"J. W. Rawlinson.\\n\\\"S. B. Shaw.\\\"\\nSuch a paper would not give very much authority to common-law arbitrators, or enlighten them as to what was submitted to them. It is evident that both the parties contemplated such an arbitration as the rules of the church required from its members in cases of differences between them. The articles of submission do not provide that the award shall be final and binding, and undoubtedly it was expected that it would be subject to the rules of the church. When the first award was made, the plaintiff did not treat it as final and acquiesce in it. He claimed an appeal, and, against the protest of the defendant, his appeal was granted. When the second award was made, the defendant did not .regard it as final and acquiesce in it, but appealed therefrom. The presiding elder did not think an appeal would lie from the second award, but the bishop and the quarterly conference held otherwise, and ordered that there should be another arbitration. Instead of acquiescing in this action of the church authorities, the plaintiff brings this suit. If Bishop Walden was right in the holding that an appeal from the second award would lie, then there is no final award which can be enforced. If, on the other hand, there could be but one award, as the letter of the bishop asserts, then the plaintiff has already got all he was entitled to. We think it very clear that the parties had in mind, not a statutory arbitration nor a common-law arbitration, but an arbitration subject to the rules and usages of the church, as interpreted by its officers. Those officers have ruled in such a way as not to satisfy the plaintiff. He now appeals to the .court, and, instead of submitting to the action of the church, he selects such portion of its action as is favorable to him, and asks the court to enforce it. We do not think he has an award which the courts can enforce.\\nThe judgment is affirmed, with costs.\\nThe other Justices concurred.\"}"

mich/1574149.json

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+"{\"id\": \"1574149\", \"name\": \"LEWIS v. DETROIT VITRIFIED BRICK CO.\", \"name_abbreviation\": \"Lewis v. Detroit Vitrified Brick Co.\", \"decision_date\": \"1911-02-01\", \"docket_number\": \"Docket No. 25\", \"first_page\": \"489\", \"last_page\": \"501\", \"citations\": \"164 Mich. 489\", \"volume\": \"164\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T17:05:59.577892+00:00\", \"provenance\": \"CAP\", \"judges\": \"Bird, Blair, Hooker, and Stone, JJ., concurred.\", \"parties\": \"LEWIS v. DETROIT VITRIFIED BRICK CO.\", \"head_matter\": \"LEWIS v. DETROIT VITRIFIED BRICK CO.\\n1. Master and Servant \\u2014 Independent Contractor \\u2014 Mines and Minino \\u2014 Compensation.\\nA laborer working in a mine, subject to discharge at any time by the proprietor, receiving payment for removing shale and rock, by the ton, fixing his own hours of labor, and providing certain of the tools and materials for carrying on the work, is a servant, not an independent contractor.\\n2. Mines and Mining \\u2014 Evidence\\u2014Judicial Notice.\\nThe court cannot take judicial notice that general inspection of a mine is necessary.\\n3. Same \\u2014 Safe Place \\u2014 Supporting and Timbering Drifts.\\nIt was a question for the jury whether defendant used reasonable care in providing its miners with a safe place to work, where it appeared that the operations were carried on in an old coal mine, from which the timbering was removed as operations advanced; that blasting was being done in the part of the mine in which plaintiff worked; that the mining boss knew certain rock and material in the roof were loose and liable to be jarred down, but had taken no precautions to prevent it, and that the materials fell and injured plaintiff while he was working in a part of the mine that was used as a permanent passageway.\\n4. Same.\\nWhether ordinary care required that the rock be removed or supported in its place, whether the alleged negligence was attributable to defendant, and whether plaintiff was negligent, were questions of fact.\\n5. Same \\u2014 Evidence\\u2014Assurance as to Safety.\\nWhile evidence that the agent of defendant advised plaintiff, when he went to work, that the mine was a safe one, and that plaintiff had had no previous experience in a mine, was incompetent to prove the defendant\\u2019s negligence, its admission did not prejudice defendant, since the only question of want of safety, under pleadings and evidence, related to the overhanging loose rock, and since plaintiff\\u2019s inexperience was only in question as affecting his contributory negligence.\\n6. Same \\u2014 Instructions\\u2014Contributory Negligence.\\nIn the absence of testimony tending to show that the mine boss was accustomed to examine the roof of the drift after each blast, except in the immediate vicinity of the explosion, defendant could not complain of the court\\u2019s instructions to the jury that if plaintiff followed the mine boss into the drift before the latter had time to make such examination, he was guilty of contributory negligence, the plaintiff receiving his injuries at some distance from the usual point of inspection.\\n7. Damages \\u2014 Charge of Court \\u2014 General Instructions \\u2014 Saving Questions for Review.\\nThat instructions to the jury on the question of damages were of a general character, does not require the reversal of the case, if they were correct and no requests for more specific instructions were presented.\\nError to Shiawassee; Miner, J.\\nSubmitted January 5, 1911.\\n(Docket No. 25.)\\nDecided February 1, 1911.\\nCase by William Lewis against the Detroit Vitrified Brick Company for personal injuries. Judgment for plaintiff; defendant brings error.\\nAffirmed.\\nOdell Chapman, for appellant.\\nGeorge E. Pardee and A. L. Chandler, for appellee.\\nAs to who is deemed to be an independent contractor, see note in 65 L. R. A. 447.\", \"word_count\": \"4547\", \"char_count\": \"25604\", \"text\": \"Ostrander, O. J.\\nNo testimony was introduced on the part of defendant. It is certified that the record contains the substance of all the testimony given upon the trial. In neither brief is there a statement of what the testimony for the plaintiff tends to prove. From such statements as the briefs contain, and from the record, we learn that the testimony for the plaintiff tends to prove that a part of the business of defendant is the mining of shale, or clay. The property in which the deposit of shale is found was formerly operated as a coal mine. The deposit of shale is upon a lower level than the deposit of coal. The shaft of the mine is some 50 feet in depth, ending in an entry or gallery some hundred feet or more in length, which runs north and south. On the west side of this gallery, drifts have been run into the shale, which is removed by first drilling into the face of the deposit, exploding dynamite, and, as the shale is torn down by the force of the explosion, and by picks and shovels, it is loaded in cars running upon tracks, pushed out to the main gallery, and hoisted to the surface. The drift in which plaintiff received his injury is about 12 feet wide, the deposit of shale about 17 feet in depth, and directly over the drift is a tunnel made in earlier days in pursuing a seam of coal, so that the roof of the drift is 21 or 22 feet above the bottom of the drift, and is in fact the roof of the tunnel made when the coal was taken out. In the operations in this drift, the shale was removed at the rate of about a foot a day. In the mining of coal, the roof of the mine or tunnel had been to some extent braced or propped. In drifting into the shale, when these props were reached, they were taken out and either thrown to one side or used to make ties upon which to lay the rails for the tram cars. The shale mine itself was an untimbered mine.\\nThe plaintiff, a man about 38 years of age, who had no experience in mining, applied at Flint to a Mr. Cook to obtain employment in the mine. Later, plaintiff was taken by Cook, or went with Cook, to the mine, and was there introduced to Mr. Peake, the mine boss, with the statement that he (Cook) had charge of things above ground and Peake had charge of things below ground. In the conversation it was stated there was employment for plaintiff at $2.50 a day or 30 cents a ton, and Peake, with the plaintiff and another, went down into the mine. The mine was wet, and wholly unlighted except by the oil lamps which the miners carried on their caps. Just what plaintiff was able to see upon this visit, or what investigation, if any, he made, is not very clear. Later, he went to work, at first at shoveling under the direction of the mine boss, and was afterwards given a place in the drift which has been described, and where he understood that he was working by the ton and not by the day. There were two other men at work in this drift, one of whom drilled, and the others, including plaintiff, loaded the shale and pushed the ear out and in. The explosive was handled by Peake and each shot was fired by him. Plaintiff knew the character of dynamite and the effect produced by exploding it. When a shot was ready to be fired, the men left the mine, descending again after the explosion, when it was the practice for Peake to go ahead into the drift and make some examination of the condition of the walls and roof to see whether they were safe. Plaintiff had worked one day in this drift and had begun work the second day, which was July 14, 1908. He had gone to the surface with the others, a shot had been exploded, and he, with Peake and his companions, had again gone down into the mine. Peake was up on the breast of the drift making some examination. Plaintiff and one other were some 20 or 30 feet back from the end of the drift, loading a car, when a rock weighing a ton or more fell from the roof of the old mine, smashing the car, pinned plaintiff to the bottom of the drift, and badly injured him. His companion waS also struck, but managed to avoid being crushed. Plaintiff also introduced testimony tending to show that he was assured by Peake before beginning work that the mine was a safe mine; that the rock which fell upon him was loose and was known to be loose by Peake and by others; that the attention of Peake had been directed to it by some of the men who had worked in the drift before plaintiff worked there; that in the coal mine this rock had been supported by props which had been removed; that when plaintiff began work in this drift it had been carried to a point considerably beyond that in which the rock overhung the drift; that he had no notice or knowledge of the condition of the roof, and that with the lights that were carried and with his experience it is improbable that he would have discovered or could have understood there was danger to be apprehended from the falling of this rock. The testimony with respect to the assurance that the mine was a safe mine was later stricken out.\\nThe declaration of the plaintiff contains two counts. In the first count is alleged by way of inducement the ownership and operation of the mine; that explosives were used; that plaintiff was at work under the direction and charge of defendant through its boss or foreman; that the walls of the mine were not timbered, braced up, or supported in any way. The duty of defendant and the breaches thereof which are alleged are:\\n\\\"Whereby it became and was the duty of said defendant to put in braces, timbers and supports in said roof, drifts, stopes, crosscuts and chambers of said mine, and to provide proper and suitable timbers and material to prop and support the overhanging walls of said mine, good and proper means to prevent the walls and the clay and rock therein from crumbling, caving and falling down on the plaintiff and the servants of defendant, and to duly and properly inspect said mine whereby it might be kept safe; and to furnish plaintiff with a suitable and reasonably safe place in which to perform his work as aforesaid, and not to put him in a place unsafe or surrounded with dangers and perils not fully known and understood and not assumed by the plaintiff. Yet the defendant disregarding its duty as aforesaid, to wit, July 14, 1908, and while plaintiff was so engaged in his regular employment as aforesaid, and not knowing of any unreasonable or extra-hazardous danger surrounding him, the said defendant wrongfully and negligently neglected and refused to duly and properly inspect said mine, whereby it might be kept reasonably safe for plaintiff to work, and neglected and refused to provide a reasonably safe place in which plaintiff was required to perform his work as aforesaid, by then and' there neglecting and refusing to place timbers and supports in said roof, drifts, stopes, crosscuts and chambers of said mine, and to provide proper and suitable timbers and material to prop and support the overhanging walls of said mine, good and proper means to prevent the walls and the rock and clay therein from crumbling, caving and falling down on the plaintiff and injuring him, said plaintiff, and did consign plaintiff to a place not reasonably safe, and which was surrounded with dangers and perils not fully known and understood by plaintiff, and therefore not assumed by plaintiff; and that, therefore, the requiring plaintiff to perform as aforesaid was actionable and tortious wrong and negligence of said defendant toward said plaintiff.\\\"\\nIn the second count the employment of the plaintiff is alleged; his inexperience in mining; the fact that he did not understand the situation; that he had no adequate knowledge or conception of the dangers of mining; that defendant informed him that the place was safe; and that there was no danger to the plaintiff. The duty alleged and the breaches are:\\n\\\" Whereby it became and was the duty of said defendant to provide proper and suitable timbers and material to prop and support the overhanging walls of said mine, and also inasmuch as plaintiff was inexperienced in such work and did not know of or comprehend the dangers and perils surrounding him in said work and the said dangers, not being obvious to him and not assumed by him, and furthermore inasmuch as the defendant informed plaintiff that there was no danger and' that the place was a safe place to work \\u2014 to fully and sufficiently warn and inform plaintiff of the surrounding dangers, viz., that said walls, drifts, etc., not being braced, supported or propped, that the overhanging walls and other walls were liable to cave, crumble and fall upon and against the plaintiff, injuring him, and that defendant knew or should have known of such dangers and surroundings. Yet said defendant disregarding its duty, as aforesaid, on, to wit, July 14,1908, neglected to provide proper and suitable timbers and material to prop and support the overhanging walls of said mine, and while plaintiff was engaged in his regular employment as aforesaid, and not knowing of any unreasonable or extrahazardous danger surrounding him, the said defendant wrongfully and negligently refused and neglected to warn and inform plaintiff that the place he was consigned to work was not a reasonably safe place for want of braces, props and supports in the drifts, stopes, chambers, walls, etc., of said mine, but that said defendant on, to wit, a week before wrongfully and tortiously informed plaintiff that the said place was safe and all right in which to perform his said work, and that, therefore, the requiring of plaintiff to perform under the circumstances aforesaid was actionable wrong .and negligence of said defendant toward said plaintiff.\\\"\\nAs the case for the plaintiff was developed, three principal propositions, based upon the testimony for the plaintiff, were, and are now, asserted by defendant as established and as preventing a recovery by the plaintiff. They are, first, that the plaintiff was an independent contractor; second, that the point in the mine at which plaintiff received his injury was within the area disturbed by the mining operations as they were carried on there, and constantly changing or liable to change; third, that Peake was a fellow-servant of plaintiff.\\nThe testimony relied upon to support the first proposition may be said to be undisputed, the effect of it, as defendant contends, being that plaintiff and the men with whom he was working were not under the control of defendant or its agents with respect either to the manner of doing the work or the results to be obtained. The question was left to the jury, but we are of opinion that the court might properly have instructed the jury that plaintiff was not an independent contractor. It is true the men were to be paid 30 cents.a ton for the shale mined by them, to be divided between them, excluding Peake. Their hours for labor were fixed by themselves, unless\\u2014 and upon this subject we find no testimony \\u2014 power controlled by defendant was used to hoist loaded cars, in which case it would seem they would be required to adapt their hours of labor to the hours of hoisting. They furnished lights and explosives, or the cost of them, and were generally masters of their time and of the efforts they should make. But as against these facts are those now to be stated: The mine belonged to defendant, which furnished cars, track, and the place to work. An agent of defendant handled and exploded the dynamite. Control of the interior of the mine was with defendant, which' could at any time discharge plaintiff and those working with him. Plaintiff was no more an independent contractor than a mason would be who, subject to discharge at any time, lays bricks in a building at an agreed price for a thousand bricks, the bricks, mortar and an assistant being furnished to him, although he may work or not work, or work fast or slow,- as he pleases.\\nAs to the second proposition, involving as it does the question of the duty of defendant to furnish a safe place to work, and as to the third proposition, if in view of the plaintiff's position they are material, they (as we shall later on attempt to show) presented questions of fact for the jury. Independently of these propositions and certain objections to testimony which we think present no ground for a reversal of the judgment, it does not appear to be claimed that the case for plaintiff should not have been submitted to the jury. It is not now contended that the case submitted to the jury was not the case made by the plaintiff. There was no motion for a new trial. There were requests, couched in the general form, that the evidence did not justify a verdict for the plaintiff, but the points made in argument are those which are considered above.\\nThe declaration alleges, in a very general way, that what defendant omitted to do was to inspect and to timber the mine, or to prop and support the roof and walls thereof. These are the essential averments of negligence. \\\"We do not find in the record any testimony tending to prove that the mine required timbering or the walls or roof thereof support, or that either precaution was practicable. Besides, plaintiff knew that the mine was not timbered; at least, such knowledge might have been inferred by the jury. What the testimony does tend to prove is that the particular rock or stone which fell was loose, was liable to be jarred or thrown down, and that the mine boss knew it wasloose, had been propped or supported in the coal mine, and the prop or props removed in making the shale mine. It does not appear that in any other place the roof or walls required support or that in any other respect the mine was unsafe except as all underground workings may be said to be unsafe. The drift had been opened beyond the point where the rock overhung it before plaintiff began work. It is to be inferred from the testimony that this rock could have been, and should have been, broken down and removed. There is no testimony tending to prove, and the court cannot take judicial notice of the fact, that general inspection of the mine was necessary.\\nIt is therefore evident that the material questions for the jury were (1) whether the particular condition created by the loose rock and the successive explosions rendered the place unsafe, and whether ordinary care demanded that the rock be removed or be supported in place; (2) whether, if it was negligent to leave the rock in place unsupported, it was the negligence of defendant; (3) whether plaintiff was negligent. The testimony which was produced made a case very different from the one considered in Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 33 L. R. A. 435, 58 Am. St. Rep. 505), or the one considered in Beesley v. F. W. Wheeler & Co., 103 Mich. 196 (61 N. W. 658, 27 L. R. A. 366). The drift, at the point where plaintiff was injured, was a permanent passageway, in which plaintiff found rails laid to a point many feet beyond the point where he was injured. So far as appears, it was a safe one except for the loose overhanging rock. Indeed, the work of plaintiff and his fellows did not create the roof of the drift.\\n' We are of opinion that the testimony tending to prove, as a part of the contract of hiring, the assurance that the mine was a safe place, testimony which was afterwards stricken out, and that tending to prove that plaintiff had no experience in mining, was inadmissible, under the declaration, to show the negligence of defendant, but we hold that its admission did not prejudice defendant. It did not prejudice defendant because, as has been stated, there was no question of the safety of the mine except as connected with the hanging rock, and none of the experience of plaintiff except as affecting his duty to discover the only danger which existed.\\nPlaintiff introduced some testimony tending to prove that it was a custom, not always observed, for Peake, after an explosion, to go into the drift ahead of the others and look the walls and roof over, and then call the others, and that upon the particular occasion he went into the drift and was followed by plaintiff and the others before they were called. Upon this testimony, and it was not all one way, nor was it very certain, defendant based, in part, the theory of plaintiff's contributory negligence and submitted a request. Upon this subject the court gave the following instruction, which, while not very specific, we regard as favorable to defendant.\\n\\\"This is the defendant's seventh request:\\n\\\"'And if the jury find from the evidence in this case that the plaintiff knew it was his duty to remain away after a shot was fired until Mr. Peake should examine the walls and roof, and ascertain whether there was loose rock liable to fall, and if the jury further find from the evidence that at the time of the firing of the last shot before the injury to plaintiff, the plaintiff and all those working with him including Mr. Peake went out of the mine, and that after the explosion Peake said, ' ' Come on; let's go down and see what we have got,\\\" or in any other way told the men to go with him down the shaft, and you find that the plaintiff knew that Peake went with him down the shaft, and that the plaintiff knew that Peake had not yet examined the walls or roof of the drift in the vicinity of where the shot was fired, and the plaintiff, in spite of such knowledge, with desire to get to work that he might earn more money, began working before Mr. Peake pronounced it safe or said anything to him, the plaintiff, about beginning work in the end of the drift or about the subject of whether there was loose rock or about whether it was safe, then the plaintiff was guilty of contributory negligence, and if you so find your verdict must be for the defendant.'\\n\\\"Now, that depends very much upon what you find that the plaintiff knew was the duty of Mr. Peake and what he knew was his duty at the time. If he knew at that time that it was Mr. Peake's duty before he resumed the work, or before he came near his work, that it was Mr. Peake's duty to go and investigate and if at that time when the accident happened, Mr. Peake had not made such investigation and had not signified to the plaintiff in any way that it was his duty to go to work, then the plaintiff should have waited longer, and if you find this to be the fact, then plaintiff could not recover. Vou have a right to take into consideration where Mr. Peake was at the time and where the plaintiff was at the time. As I understand the'evidence, and it is your duty to determine that fact, at the time of the accident, Mr. Peake was up toward the top where the explosion occurred, and the plaintiff was back here, some of the witnesses said, 20 or 30 feet back. Now, you should take into consideration all of those facts, what occurred between Mr. Peake and this man at the top of the mine, what Mr. Peake said to the plaintiff, or those who were with the plaintiff, and determine whether or not the plaintiff at that time violated any duty which he owed the company. If he violated any duty which in any way contributed to the injury in this case, then he could not recover. Or, in other words, if he violated any duty that he owed to the defendant, he was guilty of contributory negligence, and if that negligence contributed in any way to the injury, then the plaintiff could not recover.\\\"\\nThis Was favorable to defendant because there is no testimony tending to prove that it was the custom for Peake to examine the roof in the whole drift after each explosion or any considerable portion of it except at or near the point where the shot was fired. In other portions of the charge the jury was told that if plaintiff knew of the loose rock, or by reasonable care could have-discovered its condition, he could not recover; that plaintiff assumed the usual hazards of the employment, but had a right to rely upon the performance by the master of his duty to furnish a reasonably safe place in which to work. He instructed them also:\\n\\\" If the jury find from the evidence that the rock which fell upon plaintiff was caused to fall by the blasts which the plaintiff and those working with him, placed in the west entry and fired during the time plaintiff was working there, then the plaintiff cannot recover, and your verdict, if you so find, should be not guilty. I will amend that by saying, unless you find that the rock had been loose such a length of time and the defendant knew it, and that by the exercise of ordinary and reasonable diligence, it should have removed it.\\\"\\nThere was abundant testimony to support findings that as to his knowledge of the condition of the roof \\u2014 the dangerous condition created by the loose rock \\u2014 Peake was not a fellow-servant of plaintiff and that if the proper officers of defendant had no actual knowledge of the particular condition of the roof of this drift, they were legally chargeable with such notice.\\nThe rulings made by the court during the cross-examination of plaintiff evidence no abuse of discretion. The instructions upon the subject of the damages recoverable by plaintiff are criticised by counsel. Defendant presented no request and asked for no correction of the charge. It is not claimed that the verdict, the amount of which does not appear in the record, was excessive. The instructions might have been amplified, but their general nature, so long as the rule stated is a correct one, does not justify a reversal of the judgment. A proper rule was stated, and there was some testimony concerning the wages plaintiff was capable of earning and had earned. In view of all of the testimony and of the considerations which have been stated, we are of the opinion that the failure on the part of the court to more sharply and simply present to the jury the precise questions of fact which were involved is not a good ground for reversing the judgment. The specific objections made by the appellant cannot be sustained. Affirmance of the judgment does not imply approval of all that was done at the trial or of all that was said to the jury. The testimony for plaintiff tended to prove the negligence of defendant in not removing the rock or supporting it in the roof of the mine and absence of negligence on the part of plaintiff. That plaintiff was severely injured, there can be no doubt.\\nThe judgment is affirmed.\\nBird, Blair, Hooker, and Stone, JJ., concurred.\"}"

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+"{\"id\": \"1582701\", \"name\": \"BRANDT v. BROWN\", \"name_abbreviation\": \"Brandt v. Brown\", \"decision_date\": \"1910-03-05\", \"docket_number\": \"Docket No. 5\", \"first_page\": \"258\", \"last_page\": \"267\", \"citations\": \"160 Mich. 258\", \"volume\": \"160\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T18:04:20.496011+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hooker, McAlvay, Brooke, and Stone, JJ., concurred.\", \"parties\": \"BRANDT v. BROWN.\", \"head_matter\": \"BRANDT v. BROWN.\\nCancellation of Instruments \\u2014 Contracts \\u2014 Rescission for Fraud \\u2014 Purchaser in Good Faith.\\nIn a suit to set aside a deed of a right of way formerly owned by the complainant, and of considerable value, a decree for the complainant on the ground that the deed was obtained by fraud, is supported by testimony showing that the defendant promised, as a consideration for the release of the right of way, to convey to the complainant a right of way across other land which he had previously sold without complainant\\u2019s knowledge, and the decree as to a joint defendant is justified by evidence that the right of way was reconveyed by complainant for the benefit of the joint defendant, whose wife assisted in procuring the same.\\nAppeal from Van Bur\\u00e9n; Des Voignes, J.\\nSubmitted February 15, 1910.\\n(Docket No. 5.)\\nDecided March 5, 1910.\\nBill by Agnes Brandt against Philo M. Brown and Hattie B. Brown to set aside a deed on the ground of fraud. On petition, Lewis F. Algrem was permitted to appear as a party defendant. From a decree for complainant, defend Algrem appeals.\\nAffirmed.\\nThomas J. Cavanaugh, for complainant.\\nBarnard & Lewis, for appellant.\", \"word_count\": \"3118\", \"char_count\": \"16159\", \"text\": \"Moore, J.\\nThe complainant filed her bill of complaint against the defendants Philo M. Brown and Hattie E. Brown, setting forth in substance that a right of way was deeded by defendants Brown to herself and husband by the entireties, and that afterwards the defendant Philo M. Brown procured a deed of the same from complainant and her husband on the promise that he would secure them a right of way across the premises known as the \\\" Reece land.\\\" The defendant Algrem was not made a party defendant by said bill. Philo M. and Hattie E. Brown filed their answer to the complainant's bill of complaint, denying therein any such promise or undertaking on their part. Afterwards, on the 5th day of November, the defendant Algrem, by his agent, Mrs. Algrem, filed a petition in said cause praying therein for leave to appear and defend in said cause, and on the 14th of November, A. D. 1908, an order was made granting the prayer. Thereafter the said defendant Algrem filed an answer to the bill of complaint in said cause and specifically averred therein that he owned the land by virtue of a contract dated September 9, 1905, over which said right of way extended, and that the complainant had notice and knowledge of the fact that he had purchased the lands claimed by them. An answer was filed to this answer by the complainant. The case was heard in open court. A de cree was granted in favor of complainant as prayed. The case is brought here by appeal.\\nThe accompanying plat will aid in understanding the situation:\\nPrior to September 9, 1905, the defendant Philo M. Brown was the owner of the four parcels of land, and the right of way shown in the plat. On September 9, 1905, he made a written contract to sell to defendant Algrem the Algrem tract. This contract was recorded June 27, 1906. Mr. Brown testified that when he made the contract he reserved a right of way to the tracts shown on the map as the Brandt tracts. The Reece tract was sold by Mr. Brown July 30, 1907.\\nMarch 10, 1906, Mr. Brown sold and deeded to the complainant and her husband by the entireties the two parcels of land shown as the Brandt tracts and the right of way shown on the map. Some dispute arose between Mrs. Algrem and Mr. Brown about the land contract. On September 7, 1907, Mr. Brown procured from the complainant and her husband a quitclaim deed to the right of way, which deed was recorded September 14, 1907. Later this right of way was conveyed to Algrem by Brown. Mr. Brandt died October 15, 1907. This suit was begun December 5, 1907. The bill of complaint contained the following averment:\\n\\\"Your oratrix further shows unto the court that some time prior to the 7th day of September, A. D. 1907, the said Philo M. Brown sought out your oratrix and her said husband and implored and requested them to enter into an arrangement and understanding to deed back to him, the said Philo M. Brown and his said wife, the said right of way, and while endeavoring to procure the making of said agreement, held out many promises to your oratrix and her said husband, and eventually agreed with your oratrix and her husband that, if they would convey to the said Philo M. Brown the said right of way, he, the said Philo M. Brown and his wife, Hattie B. Brown, would convey to your oratrix and her said husband a strip of land sufficiently wide to give them passage to and from said lands so purchased by them to said Eighth street, that said way so promised would extend across the west 11J acres of the northeast quarter of the southwest quarter of said section 29, which said lands the said Philo M. Brown had before that time deeded and conveyed to Carl Reece and his wife, as hereinbefore set forth; that in compliance with said arrangement, and relying upon the promises and agreements made by the said Philo M. Brown and his ability to perform the same, your oratrix and her said husband reconveyed said right of way to the said Philo M. Brown and Hattie B. Brown, his wife.\\\"\\nMr. and Mrs. Brandt and Mr. Algrem are German, and do not speak English well. The witnesses are not at all agreed as to what occurred. It is the claim of Mr. Brown that late in August or early in September Mrs. Algrem appeared. We quote from the testimony of Mr. Brown:\\n\\\"Q. Was there anything said at anytime about fencing this right of way up on Algrem's side ?\\n\\\"A. Not until Mrs. Algrem come out and said that\\u2014 Well, do you want me to tell what she said ?\\n\\\"Q. Yes.\\n' 'A. She came out and said her husband had transferred the right of \\u2014 the papers to her, the contract, transferred it to her \\u2014 Mr. Algrem had, and that she wouldn't have a road there. Well, I told her I didn't knowhow she could hinder herself \\u2014 Mr. Brandt had a deed of it. Well, she said she wouldn't have it. ' Well,' I says, ' I paid your husband for it,' and it would have to stay right there\\u2014 have no trouble. Well, she wouldn't have it. Well, I told her that the only way for her to get out of it would be to make some bargain with Mr. Brandt, and have him throw it up; otherwise, it would remain right where it was.\\\"\\nHe further testified that Mrs. Algrem entered into negotiations with Mr. Brandt and obtained from him an agreement to surrender the deed; that\\u2014\\n\\\"Mr. Brandt told me to come over, and we would make out the papers \\u2014 that is how I got it into my head to take Harry Huff and go over to Brandt's. That was the first thing that he said about making out the deed.\\nl'Q. How did he come to say that to you ?\\n\\\"A. Why, they was talking. Mrs. Algrem had been to him, and he had agreed to surrender the deed, and he told me to come over and we would fix the matter up. That is the reason that I went over there; yes, sir.\\\"\\nMr. Brown further testified :\\n\\\"He got that right of way in'his deed, and he deeded it back to me; yes, sir. And then, and then only, did I give a deed to Algrem.\\n\\\" Q. What negotiations, if any, passed between you and Mr. Brandt for the purpose of having that right of way deeded back to you ?\\n\\\"A. Only conversation that we had that he didn't like the private right of way, and that he would like a public road, and I told him I would use my influence in getting him a public highway. He asked nothing further of me; no, sir. I promised him nothing further than that I would use my influence to get a public right of way; that was all.\\\"\\nAgain we quote from his testimony:\\n\\\"Q. That Mrs. Algrem was saying she wanted that scratched off ?\\n\\\"A. Yes, sir. I told Mrs. Algrem I had no power to get the right of way back for her. The only way for her to do would be for her to make some arrangements with Mr. Brandt to throw up the right of way. It made no difference to me whether the right of way was thrown up or not; I didn't have any interest in it one way or the other. I didn't consider I was under auy obligations to get that back for Algrem; no, sir. Or that it would be any advantage to me in any way to do it.\\n\\\"Q. Why or how did you take any interest in the matter whatever ?\\n\\\"A. Nothing; only I sold to Mr. Brandt, and I wanted him to have a right of way out. That is the reason I sacrificed money to give him one.\\n\\\"Q. Why did you have any interest, or take any interest, in getting the matter that Mrs. Algrem was talking about fixed up ?\\n\\\"A. Well, she was out there in the neighborhood of a week, I think, and harping the thing continually. She had been over there to see Mr. Brandt alone \\u2014 that is, I wasn't there \\u2014 and she claimed that Mr. Brandt misused her. I guess that they had a little 'flare up.' I had no interest in the matter myself, except to get the matter settled between Algrem and Brandt; that is all. There was no talk between myself and Brandt as to where I would try to get, or use my influence to get, the new right of way in any particular place; no, sir.\\\"\\nMrs. Algrem had a different version of the transaction; she testified:\\n\\\" I signed a petition to have my husband made a party to this suit. I know Mrs. Brandt and Mr. Brown. Have known Mr. Brown ever since my husband bought this land. I came to Pine Grove with my husband at the time he contracted for the land; yes, sir. I was representing my husband, then; yes, sir. He sent me over. I had some talk with Mr. Brown; yes, sir.\\n\\\"Q. About a right of way there ?\\n\\\"A. No, about my own land that I bought from Mr. Brown. The contract run to my husband. I talked with him about the contract; yes, sir.\\n\\\"Q. And you had a talk about a deed that he had given to Mr. Brown ?\\n\\\"A. No, I told him that I wanted my land back, for I paid for it. That is what I told Mr. Brown.\\n\\\"Q. Well, you knew that he deeded it to Mr. Brandt ?\\n\\\"A. Yes, he did.\\n\\\"Q. You knew that, didn't you ?\\n\\\"A. No, I didn't know it, but I found out after a while. I found it out when I came over a year ago last September.\\n\\\"Q. And then did you know that you got it back from Brandt ?\\n\\\"A. Yes, I knew after a while. He promised to give it back to me. I remained there until he got it back from Brandt; yes, sir. I didn't know how he got it back from Brandt \\u2014 I don't know. I know he got a deed. He talked with me and Mrs. Brandt when I went over there a year ago last September. I couldn't just tell you, but it was in the early part of September. There was a deed made while I was over there. I stayed there, yes, sir, until the deed was made.\\n\\\"Q. And you had Mr. Brown go and get it, did you?\\n\\\"A. Yes, Mr. Brown had to get it. I told Mr. and Mrs. Brandt when I went over there that I wanted my land back, and they said that they had it on their deed. It was signed to them by Mr. Brown. I said to them: ' They have signed my husband's land away.' I said that to Mr. and Mrs. Brandt. He was living then. I talked with both of them.\\\"\\nCross-examination:\\n\\\"I had a talk with Mr. and Mrs. Brandt. They were both at home; yes, sir. I went over and see Mr. Brandt at one time when his wife was away; yes, sir.\\\"\\nThere can be no reasonable doubt that Mrs. Algrem was representing her husband, and that she and Mr. Brown were acting in concert in getting the deed of the right of way from Mr. and Mrs. Brandt. Mrs. Brandt testified that after they bought the two tracts of land and the right of way they built a house and some barns, and that when the dispute arose between Mr. Brown and Mrs. Algrem, and relying upon the promise of Mr. Brown to procure for them a right of way across the tract owned by Mr. Reece, \\\"The other road was to be straight through the orchard,\\\" and without any other consideration they made the quitclaim. We quote from her testimony:\\n\\\" Before I signed the deed, and when I met Mr. Brown, I told him what my husband told me; yes.\\n\\\"Q. What did he say to that, then ?\\n\\\"A. Well, he says he promised my husband other road. The other road was to be straight through the orchard. Reece owns the land that that would cross now. Mr. Brown didn't pay me any money \\u2014 not a cent. I was not at home when Mr. Brown and Mr. Huff came there. Mr. Brown was down there many times before that. He was having trouble with Mrs. Algrem. She was going to sue him. And I please my husband to give him this road for other one, and my husband has done it to help him not to have trouble. Mr. Brown many times come over on my place. I say: 'What you want, Mr. Brown?' He says, Mr. Brown, please me to help him be a witness, then I go to Chicago \\u2014 then I come back. My husband says: ' I deed the road back to Mr. Brown.' The trouble he had with Algrem he got not enough acres. Mrs. Algrem says she got just 10 acres, and the deed calls for 12 acres. Mrs. Algrem come over one time. I had a talk with her. She said: ' I come and close that road.' She says to my husband and me: ' I close you the road.' My husband he say: 'Why?' 'Well,'she say, 'I got not enough acres. I buy 12 and I got just 10 acres, and my deed call for 12 acres.' My husband says: 'My street is deeded in Paw Paw, you could not close me the road;' and then she told me about what neighbors come to my husband and speak it over. I think Mrs. Algrem began coming there in August. My husband and Mrs. Algrem down to Mr. Brown.\\\"\\nIt will be seen that the testimony is very contradictory, but there are some things about which there is no dispute. In March, 1906, Mr. and Mrs. Brandt paid Mr. Brown nearly $1,700 for the two tracts of lan,d and the right of way which was deeded to them, and soon thereafter took possession thereof, and used the right of way, and built upon the land near the lake a house and barns of considerable value. Mr. and Mrs. Brandt declined to buy the land unless they could also buy the right of way. When Mr. Brown obtained from Mr. and Mrs. Brandt a deed of this right of way, the Brandts were without any way of ingress or egress to this very valuable property. It requires a great deal of credulity to believe this valuable right would be deeded upon the bare promise of Mr. Brown to use his influence toward getting a public highway.\\nIt is urged that it is not shown Mr. Algrem did any wrong or was to blame in any way. Mr. Brown testified:\\n\\\" I had some talk with Mr. Algrem about the making of the deed of this land. I was to sell Mr. Brandt a piece of land in back, and I told Mr. Algrem I couldn't sell him the land west of Mr. Brandt's unless I could have a right of way out for Mr. Brandt. He says: ' I am perfectly willing that you should have a right of way, as I have to have a road up and back;' and he was perfectly willing that Mr. Brandt should use it and have nothing for it. ' Well, now,' I says, 'for fear that there should be something come up that might damage, interfere with your interest, I will throw off $5 an acre for this right of way\\u2014 12-foot right of way.' Mr. Algrem was perfectly willing to do that, and we done so. That made \\u00a760 for the right of way, which fetched the land down to $70 an acre. He was to pay $75, I threw off $5 on an acre. That was before I made the deed to him; yes, sir. The contract was entered into with that understanding; yes, sir. I think Mr. Algrem wanted once to buy the land that Mr. Brandt now owns \\u2014 the one on the lake. I don't just remember what the trouble was that I didn't sell. The right of way over the Algrem land was for the benefit of land back of it \\u2014 no matter whom I sold to; no, sir. And when I did sell the land, I sold the right of way; yes, sir \\u2014as part of the consideration for the conveyance; yes, sir.\\n\\\"Q. And Algrem understood that that is what would be done ?\\n\\\"A. That is what he did.\\n\\\"Q. And his wife understood it ?\\n\\\"A. Yes, sir.\\nCiQ. And they were paid for that right of way in making the bargain as you have heretofore stated ?\\n\\\"A. Yes, sir.\\n\\\"Q. They have never since paid you back that extra five dollars per acre ?\\n\\\"A. No, sir.\\n\\\"Q. Neither did they, so far as you know, pay Brandt anything ?\\n\\\"A. No, sir.\\\"\\nMr. Algrem was in court, and neither he nor Mrs. Algrem denied the testimony just quoted. The trial judge had the great advantage of seeing the witnesses. We think the complainant very clearly established her case.\\nThe decree is affirmed, with costs.\\nHooker, McAlvay, Brooke, and Stone, JJ., concurred.\"}"

mich/1607069.json

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+"{\"id\": \"1607069\", \"name\": \"TRUMAN v. J. I. CASE THRESHING MACHINE CO.\", \"name_abbreviation\": \"Truman v. J. I. Case Threshing Machine Co.\", \"decision_date\": \"1912-03-12\", \"docket_number\": \"Docket No. 37\", \"first_page\": \"153\", \"last_page\": \"161\", \"citations\": \"169 Mich. 153\", \"volume\": \"169\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T23:07:43.527923+00:00\", \"provenance\": \"CAP\", \"judges\": \"Moore, C. J., and Steere, Me Alva y, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.\", \"parties\": \"TRUMAN v. J. I. CASE THRESHING MACHINE CO.\", \"head_matter\": \"TRUMAN v. J. I. CASE THRESHING MACHINE CO.\\n1. Damages \\u2014 Profits\\u2014Speculative Receipts.\\nAnticipated profits of an itinerant thresherman were not recoverable from a mortgagee who wrongfully took possession of the threshing machine, upon evidence offered by plaintiff which was indefinite and showed that the profits were uncertain, dependent on the weather, and on matters beyond plaintiff\\u2019s control.\\n2. Same \\u2014 Principal and Agent \\u2014 Parol Evidence Rule.\\nTestimony that defendant\\u2019s agent told plaintiff at the time the machine was purchased that he. could make $700 or more profit before the first payment became due, was inadmissible to add to the terms of the written contract which contained no such warranty. \\u2022\\n3. Same \\u2014 Fraud.\\nThe agent\\u2019s statement amounted to no more than \\u201cpuffing\\u201d used generally by salesmen.\\n4. Chattel Mortgages \\u2014 Possession by Mortgagor \\u2014 Insecurity Clause \\u2014 Good Faith.\\nInstructions to the jury that defendant must satisfy them by a fair preponderance of the evidence that it believed and had good reason to believe that its security was in danger of being impaired, that there was ground for such belief and defendant acted in good faith in seizing the threshing machine, were prejudicial error, being in conflict with a prior statement of the correct rule that if defendant acted in good faith plaintiff could not recover, though the reasons on which it acted were insufficient.\\nError to Hillsdale; Chester, J.\\nSubmitted January 26, 1912.\\n(Docket No. 37.)\\nDecided March 12, 1912.\\nTrover by Orrin B. Truman against the J. I. Case Threshing Machine Company for the conversion of a threshing machine. Judgment for plaintiff. Defendant brings error.\\nReversed.\\nLoelcerhy \\u00e9b Bowen, for appellant.\\nMiles T. Davis and Fellows <& Chandler, for appellee.\\nPlaintiff sues in an action of trover for the value of a threshing machine taken by defendant under the so-called insecurity clause of a chattel mortgage. He also seeks to recover special damages caused by said taking. The machine was sold in 1908 for $2,200, the defendant taking four promissory notes for the amount, the first of which fell due in September, 1909, and one each year thereafter. To secure the payment of these notes plaintiff gave to defendant a chattel mortgage upon the machine. This mortgage contained the usual recital that:\\n\\u201cIf said party of the second part shall at any time deem itself insecure, then, thereon, and thereafter it shall be lawful, and the said first party authorizes the second party, its successors and assigns, or its authorized agent, to treat the debt hereby secured as fully due and payable, and to take said property wherever the same may be found, and hold or sell and dispose of the same and all equity of redemp tion, at public auction or private sale, with or without notice, and on such terms as said party of the second part or its agents may see fit,\\u201d etc.\\nDuring the summer of 1909, defendant claimed to have learned facts which led it to believe that plaintiff was engaged in litigation and that he intended to run the machine until the first note came due in September and then abandon it to defendant.\\nActing on this information defendant seized the machine on August 24, 1909, and, after giving notice to plaintiff, sold it at public sale for the sum of $1,43'?, defendant itself becoming the purchaser at such sale.\\nPlaintiff brought this action the day after the seizure, and to the usual declaration in trover added a special count for damages growing out of loss of profits upon some 60 threshing contracts which he claimed to have had at the time of the seizure.\\nDefendant filed a plea of the general issue with notice that defendant was justified in the taking by virtue of the clause in the mortgage above quoted, and the acts of the plaintiff whereby the power of seizure under said clause became operative. Plaintiff had verdict for $228.28, that being the amount of his claim allowed by the jury in excess of the mortgage debt. Defendant has brought the case to this court for review.\", \"word_count\": \"2871\", \"char_count\": \"16279\", \"text\": \"Brooke, J.\\n(after stating the facts). While there are some 80 assignments of error, we will examine those only which properly arrange themselves under the following heads:\\n(1) That the court erred in admitting testimony, on behalf of plaintiff, relative to the profits which plaintiff might have made during the threshing season of 1909 had the machine not been taken from him. The objection to this line of testimony was that such prospective profits were uncertain, indefinite, speculative, and conjectural.\\n(2) That the court erred in admitting testimony relative to representations said to have been made by defendant's agent to plaintiff as to what he could earn with the machine if he purchased it. This was objected to upon the ground that it was incompetent and immaterial, and, further, that the whole contract was in writing and must govern.\\n(3) That the court erred in refusing certain requests to charge, and in the charge as given.\\nTouching the first group of assignments, we find that plaintiff was permitted to testify that he had about 60 contracts for threshing in the fall of 1909. These contracts were not in writing. Plaintiff claimed to have contracts with many persons whom he had never seen. His claim as to those was that different ones came to him and asked him to do their threshing and while there thresh what might be in the neighborhood. On cross-examination he testified:\\nc* I have given these names from a list which I have read from and which I made out a day or two ago. I went over the acreage last night. After court adjourned last night I prepared a list of the acreage which I have given here this morning. This list is an estimation of the acreage that they had when they contracted the jobs with me. I made an estimate of the acreage at the request of you fellows here yesterday. I have estimated some of the acreage these people had, and corresponded some of my jobs with other threshers that threshed the jobs after-wards. It is from what they told me, as near as I could remember, they had at the time, as near as I could remember, of what they told me when they contracted the job. I have got some of that statement off of other threshers' books that done jobs of mine after the taking away of my machine. I haven't any book accounts, nor never had, of the acres, so I must depend largely upon my memory. I haven't attempted to divide and give the number of acres of oats and the number of acres of wheat. [Plaintiff had testified on direct examination that a fair profit for threshing oats was one and one-half cents per bushel, and for wheat two and one-half cents per bushel.]\\n\\\"Q. Now, I ask you once more, have you any idea, and can you give us so as to form a good fair basis of the number of bushels of wheat, or the number of bushels of oats, that were grown and threshed upon the farms that you have named that year ?\\n\\\"A. I would have no way of knowing the number of bushels of grain, no.\\n\\\"Q. Yes; it isn't much more than guesswork, is it, Mr. Truman, as to what it would\\u2014\\n\\\"A. Well, of course, it's partially in that way, a man in threshing, he knows what the run of acreage runs, and, of course, he figures upon that, but, of course, it would be partially guesswork; a man wouldn't know how- much was in a job until it was done. My profits would depend on whether I could run right along or whether I couldn't run right along. If I should break down, had bad weather, bad grain, and bad threshing there wouldn't be much profits. Those things occur in the threshing business and in all business, I guess. I had never run a machine in that territory and didn't know what that territory \\u2014 there is a difference in territories \\u2014 I didn't know what a machine was able to make there; I never had any experience for myself in that particular territory.\\\"\\nWe have quoted these excerpts from plaintiff's testimony in order to show its unsatisfactory and indefinite character as a basis upon which to award damages for loss of profits. We think this case falls clearly within the principle laid down in Allis v. McLean, 48 Mich. 428 (12 N. W. 640), where Mr. Justice Cooley said:\\n\\\"The profits of running a sawmill are proverbially uncertain, indefinite, and contingent.\\\"\\nThe very frank and truthful testimony of the plaintiff upon this subject shows that the contingencies which enter into the business of itinerant threshing are numerous and grave. In our opinion they are much greater than are those attendant upon the operation of a sawmill. Talcott v. Crippen, 52 Mich. 633 (18 N. W. 392); Aber v. Bratton, 60 Mich. 357 (27 N. W. 564); Stevens v. Yale, 113 Mich. 680 (72 N. W. 5); Dowagiac Manfg. Co. v. Corbit, 127 Mich. 473 (86 N. W. 954, 87 N. W. 886); Quay v. Railway Co., 153 Mich. 567 (116 N. W. 1101, 18 L. R. A. [N. S.] 250).\\nIn Cushing v. Seymour, Sabin & Co., 30 Minn. 301 (15 N. W. 249), the court there, having under consider ation the loss of profits growing out of the unlawful conversion of a threshing machine, said:\\n\\\"Anticipated profits of this character are too conjectural and uncertain to furnish a proper basis for estimating the compensation to which plaintiffs are entitled for the alleged wrong. This is reasonably apparent, we think,, when it is considered that threshing is conducted in the open air and subject to contingencies of weather, breakages, delays, condition and quality of grain and state of roads, and skill and energy in operating the machine, which make it impracticable definitely to ascertain what the profits of performing particular threshing contracts will be.\\\"\\nOn this branch of the case the learned circuit judge charged the jury as follows:\\n\\\"You will further inquire and determine whether plaintiff has suffered any special damages by way of loss of profits or use of the machine. And upon this question of special damages, if you find plaintiff has been damaged in this particular, you will allow him such amount as will reasonably compensate him for the loss of profits, lost by reason of being deprived of the possession and use of this machine through the unlawful conduct of the defendant.\\\"\\nIt follows from our views, as expressed above, that this instruction was erroneous.\\nAs to the second error of which complaint is made, we find the following testimony was admitted over objections :\\nCiQ. Now, Mr. Truman, at the time you were engaged in the purchase of this machine, I ask you what representations were made to you by the agent of the J. I. Case Threshing Machine Company as to the profits, and the amount you could make with this machine before the first payment would become due September 20, 1909 ?\\n\\\"A. He said I ought to be able to make $700 or $800 with the machine.\\\"\\nThis testimony was clearly incompetent. The whole contract was in writing and contained no such warranty.\\nThe statement, if made, amounted to no more than the ordinary {' puffing \\\" used by salesmen generally. Even if the question of profits had been properly before the jury for consideration, this testimony should have been excluded. McCray Refrigerator, etc., Co. v. Woods & Zent, 99 Mich. 269 (58 N. W. 320, 41 Am. St. Rep. 599); Detroit Shipbuilding Co. v. Comstock, 144 Mich. 516 (108 N. W. 286).\\nThe third error we will consider relates to a portion of the charge. Upon the question of the right of defendant to take possession of the machine under the terms of the mortgage, the court charged as follows:\\n\\\"Evidence has been offered by defendant tending to show it felt insecure and so seized the property in question. The mortgage gave defendant that right, if in fact, acting in good faith, it felt itself insecure, as by it claimed. The first question for this jury to consider is the good faith of the defendant, and whether or not there were any reasons as a basis for it to act. You are not to judge of the sufficiency of the reasons, or whether you would haVe acted as did the defendant under the same circumstances, but you are to take into consideration all the facts as shown by the evidence on which the defendant claimed it was acting, and determine from such evidence whether or not any reasons existed and were known to the defendant at the time on which it might in good faith act, and whether or not it did act in good faith in seising said property. The reasons given may not appeal to you as good reasons, yet the defendant may have acted in entire good faith; and, if you find that to be the fact, the defendant would not be liable in this case, and your verdict under such circumstances must be no cause of action. If you find that the defendant in this case acted in good faith in the belief that it was insecure, it was justified in taking possession at the time and in the manner it did, even though the reasons assigned may not be regarded as sufficient ones by the jury. In other words, it is not necessary that it should appear that the mortgagee was in fact insecure. By the terms of the mortgage a certain discretion is vested in the mortgagee, of which the jury cannot divest it, so long as that discretion is honestly exercised. And if you find in this case that the agent of defendant sent to investigate this claim, if he was sent, reported, giving his version and his conclusion thereon, you are not to question the judgment of such agent, how ever erroneous it may have been, if you find it was based on an honest belief that the defendant was insecure in its security. If you find the defendant acted in good faith in taking the property at the time and manner claimed, then in this case there would be no conversion, and your verdict would be in favor of the defendant, and in that event there would be no need to consider the question of damages. The defendant had no right to act arbitrarily, and, before it took possession of the property for any other reason than default in payment, it must have had reasonable cause for believing that it was in danger of having its security impaired, either by reason of the neglect of the plaintiff to give proper care to the machinery, or by reason of his careless use of the same, or by reason of apprehension that the plaintiff would attempt to dispose of the property or to remove the same to some place that he had no right to take it under the terms of the mortgage. In other words, that the defendant in good faith actually believed, or had good reason to believe, that the plaintiff was in some way doing or attempting to do with the machinery that which was liable to impair its security. And, as bearing upon the question of the good faith of the defendant in taking possession of this property, you should consider all the testimony in the case, what, if anything, the defendant did in good faith in an effort to ascertain the condition of this property, the action of the plaintiff toward it, and all of the circumstances surrounding this transaction. The burden of proof in this case is upon the defendant, and the defendant must satisfy you by a fair preponderance of all the evidence that it believed and had good reason to believe that its security was in danger of being impaired, and that there was ground for such belief, and that it acted in good faith in seizing this property, otherwise the plaintiff would be entitled to recover under the instructions which I have given you and will give you hereafter. Upon all the rest of the questions in this case the burden of proof is upon the plaintiff in this case.\\\"\\nThese instructions are contradictory. In one portion thereof the jury are told that, whether the reasons which actuated the defendant were, in the estimation of the jury; good or not, the plaintiff could not recover if defendant acted in good faith. Later it is said the defendant must show by a fair preponderance of the evidence that it believed and had good reason to believe that its security was in danger of being impaired. The infirmity in this instruction is exactly that pointed out in the case of Woods v. Gaar, Scott & Co., 93 Mich. 143 (53 N. W. 14).\\nThe other assignments of error need not be considered as they are not likely to arise upon another trial.\\nThe judgment is reversed, and a new trial ordered.\\nMoore, C. J., and Steere, Me Alva y, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.\"}"

mich/1639762.json

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+"{\"id\": \"1639762\", \"name\": \"FULLER v. METCALF\", \"name_abbreviation\": \"Fuller v. Metcalf\", \"decision_date\": \"1915-12-22\", \"docket_number\": \"Docket No. 65\", \"first_page\": \"520\", \"last_page\": \"526\", \"citations\": \"189 Mich. 520\", \"volume\": \"189\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T21:22:36.845324+00:00\", \"provenance\": \"CAP\", \"judges\": \"Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.\", \"parties\": \"FULLER v. METCALF.\", \"head_matter\": \"FULLER v. METCALF.\\n1. Landlord and Tenant \\u2014 Set-off\\u2014Presumption.\\nA tenant cannot plead an independent set-off in defense of an action brought by the landlord to dispossess him for nonpayment of rent; and no presumption of law can arise against the tenant for failure to insist upon such set-off as against the rent when it falls due.\\n2. Same \\u2014 Recoupment\\u2014Delay.\\nAccordingly, it was erroneous to instruct the jury, on the trial of an action for rent, which the defense contended should be reduced by certain amounts expended for repairs or improvements that the plaintiff authorized the tenant to install, charging the cost to the former, that the failure of the defendant to insist on his set-off, when he paid the rent, raised a presumption, which was not conclusive, but which the jury had a right to consider, that all matters in difference between the parties werq settled when he made the payments. It was for the jury to say whether the delay should be treated as giving rise to an inference unfavorable to the defendant.\\n3. Same \\u2014 Evidence\\u2014Burden of Proof.\\nThe issue between the parties lay in whether or not plaintiff had authorized the defendant to make the repairs, and had promised to reimburse him. If the jury found for the defendant on this question, the delay in asserting the claim of the defense during a period of three years was not fatal to his right, but he had the burden o'f establishing his claim.\\nError to Kent; Perkins, J.\\nSubmitted June 18, 1915.\\n(Docket No. 65.)\\nDecided December 22, 1915.\\nAssumpsit by Philo C. Fuller against Samuel H. Metcalf for use and occupation of certain premises. Judgment for plaintiff. Defendant brings error.\\nReversed.\\nSmedley & Linsey, for appellant.\\nHatch, McAllister & Raymond, for appellee.\", \"word_count\": \"1801\", \"char_count\": \"10471\", \"text\": \"Person, J.\\nIn May, 1910, an arrangement was made between the parties to this action whereby the plaintiff was to lease to the defendant a barn in the city of Grand Rapids. Before the term should begin the plaintiff was to make certain changes and repairs the better to fit the building for defendant's business. Through a mutual expectation that the work would be completed so that the defendant might go into possession by the 1st day of July, he made payment of rent as from that date. It was agreed that the rent was to be at the rate of $50 per month during the first year, and thereafter at the rate of $60 per month.\\nThe defendant continued to occupy the premises for about three years, making payments of rent monthly, at the agreed rates, down to April, 1913. The plaintiff then demanded an increase to $75 per month, which the defendant would not consent to. Some ill feeling arose as the result of this, demand and refusal, and defendant delivered back possession of the, barn to plaintiff on the 30th day of June of the year last mentioned. During April, May, and June following the attempted increase of rent, defendant sent his check to plaintiff each month at the old rate of $60 per month, but the checks were refused by the plaintiff and returned to defendant.\\nAfter the surrender of possession by defendant this action was brought for the three months' rent, and defendant gave notice of set-off. On the trial the- set-off became the only question contested, inasmuch as the plaintiff conceded that he was entitled to recover only the $60 per month, and the defendant admitted that he was indebted to that extent. The defendant's set-off, which thus became the real subject of the litigation, consisted mostly of a claim for improvements and repairs to the barn made by him after he had entered into possession. It also included the amount of one-half month's rent which he thought ought to be \\u2022refunded to him, because, as he testified, the plaintiff did not complete the repairs which he was to make until about the middle of July of the first year, so as to give possession.\\nUpon the trial the defendant testified that plaintiff, who was then about to start on a business trip to New York, told him at the time of paying the first installment of rent to make such little changes and improvements to the building as he should find necessary, and that he (plaintiff) would settle for the same upon his return. He further testified that he made the changes and improvements in reliance upon such direction and promise, that he' afterwards called the plaintiff's attention to the work he had done, and that the plaintiff neither made objections thereto nor questioned his liability for the same. The plaintiff, on the other hand, denied ever having given the defendant any authority to make any changes, or add any improvements to the barn, and denied ever having promised to pay for such work. He also testified that the defendant never called his attention to the fact that he had made such changes and improvements, and that he (the plaintiff) never acknowledged, either directly or indirectly, any liability to the defendant therefor.\\nSome of the items in defendant's set-off were excluded by the trial judge from the consideration of the jury, as not coming within any promise of repayment shown in the case. The items finally submitted amounted to $105. By their verdict, however, the jury entirely rejected the claim of set-off, and allowed plaintiff the full amount of the rent, with interest. After instructing the jury that, as between landlord'and tenant, the landlord was not liable to the tenant for repairs made during the continuance of the tenancy, unless there was an express agreement between them that the landlord should pay for the same, the court proceeded with the following further instructions:\\n\\\"Now, as to all of these matters, you are to take into consideration the fact that the defendant has paid his rent on or about the 1st day of the month during the entire period of three years without making or insisting upon his alleged set-off. That is not conclusive, however. It raises the presumption, which you have a right to consider, that all matters in difference between the parties were settled at the time he paid his rent, but it is not a conclusive presumption. You have a right to take into consideration the testimony as to the understanding and agreement between the parties and what was said and what caused the delay, if anything did cause the delay. But, ordinarily, the presumption arises under such circumstances that all mat ters are settled up between the parties when one or the other pays money to the other and afterwards claims that that payment was a qualified payment, and that there is still due the person making the payment money from the person to whom the payment was made. It is for you to determine under the evidence in the case as to whether these payments of rent from time to time indicate or establish the fact that all matters of difference between these parties were settled. If you find under the evidence and the circumstances of the case that they were settled, that would end the controversy, and your verdict would be for the plaintiff for the full amount claimed. If you find that they were not settled, and these items of set-off were reserved for future determination, then you will consider these items, excluding, however, the items I have called your attention to that are not proper items of set-off in this case.\\\"\\nCounsel for defendant except to these instructions, and the instructions certainly were objectionable.\\nA tenant cannot plead an independent set-off in defense of an action brought by the landlord to dispossess him for nonpayment of rent; and no presumption of law can arise against the tenant for failure to insist upon such set-off as against the rent when it falls due. As was said in McSloy v. Ryan, 27 Mich. 110:\\n\\\"The defendant offered evidence to show that complainant had not performed his covenants in the lease in regard to improvements and repairs. As these covenants were independent of the covenant to pay rent, and this proceeding was net one in which, even if the amount of the rent was in issue, there could be any deduction of offsets, or by way of recoupment, the court did not err in rejecting this evidence.\\\"\\nThe same rule is stated in 2 Tiffany on Landlord and Tenant, p. 1766, as follows:\\n\\\"In a summary proceeding to recover possession on account of nonpayment of rent, .the tenant cannot assert that an offset or counterclaim exists in his favor to an amount sufficient to extinguish the claim for rent, whether the asserted claim on his part arises from a breach of covenant by the landlord or otherwise. It has been remarked that the object of the statute in providing an adequate and summary method of obtaining possession would be frustrated if the tenant could assert defenses of this character.\\\"\\nIt was wholly for the jury to determine whether, under all the circumstances, the defendant's delay in asserting his claim against the plaintiff, if there was such delay, should be treated as giving rise to an inference unfavorable to the existence of such claim. But the delay could not, as matter of law, be held to create a presumption that the matters offered as set-off had been settled.\\nThe burden was upon the defendant to prove that he had received authority from the plaintiff to make the repairs and improvements, and that plaintiff had promised to reimburse him therefor. These were the things that plaintiff denied, and here lay the issue. If it were found that the authority had been given and the promise made, then there was no claim by the plaintiff that the liability, once established, had ever been settled or waived by the defendant: It was improper to tell the jury, in substance, that even if the plaintiff did authorize the defendant to make the repairs and changes, and did promise to repay him for making them, it was still for them \\\"to determine, under the \\u00e9vidence in the case, as to whether these payments of rent from time to time indicate or establish the fact that all matters of difference between these parties were settled.\\\" The jury might well have understood that they were authorized to reject the items of set-off because the defendant had paid his rent without insisting upon a settlement, no matter how well those items had been established originally. This was more than a merely technical error.\\nThe judgment is reversed and a new trial ordered.\\nBrooke, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.\\nThis case, having been submitted on briefs, without oral argument, was reassigned after the death of Justice McAlvay.\"}"

mich/1669456.json

@@ -0,0 +1 @@
+"{\"id\": \"1669456\", \"name\": \"ENNEST v. PERE MARQUETTE RAILROAD CO.\", \"name_abbreviation\": \"Ennest v. Pere Marquette Railroad\", \"decision_date\": \"1913-07-09\", \"docket_number\": \"Docket No. 5\", \"first_page\": \"398\", \"last_page\": \"405\", \"citations\": \"176 Mich. 398\", \"volume\": \"176\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T19:19:36.820360+00:00\", \"provenance\": \"CAP\", \"judges\": \"Steere, C. J., and Moore, McAlvay, Brooke, Kuhn Ostrander, and Bird, JJ., concurred.\", \"parties\": \"ENNEST v. PERE MARQUETTE RAILROAD CO.\", \"head_matter\": \"ENNEST v. PERE MARQUETTE RAILROAD CO.\\n1. Railroads \\u2014 Receivers\\u2014Actions\\u2014Commencement\\u2014Process\\u2014\\u25a0 Service \\u2014 Principal and Agent.\\nService of a declaration and rule to plead upon the station agent of a railroad corporation, after the appointment f receivers by the Federal court and notice to the agent to continue his employment for the receivers as theretofore, is a valid and sufficient commencement of suit against the railroad company.\\n2. Same.\\nThe corporation continued to exist as a railroad company, although it was in the hands of receivers, and its station agent remained, for the purpose of serving process, the agent or employee of the corporation within the meaning of Act No. 260, Pub. Acts 1899 (5 How. Stat. [2d Ed.] \\u00a7\\u00a713523, 13524).\\nCertiorari to St. Clair; Law, J.\\nSubmitted June 5, 1913.\\n(Docket No. 5.)\\nDecided July 9, 1913.\\nCase by Theodore Ennest against the Pere Marquette Railroad Company for personal injuries. Defendant filed a plea in abatement, which was overruled. Defendant brings certiorari.\\nAffirmed.\\nBills, Parker, Shields & Brown, for appellant.\\nStevens, Graham & Stevens, for appellee.\", \"word_count\": \"2477\", \"char_count\": \"14430\", \"text\": \"Stone, J.\\nThis case comes into this court on certiorari to review the order of the trial judge overruling defendant's plea in abatement to the declaration. On October 24,1912, plaintiff filed a declaration against defendant in the circuit court for the county of St. Clair, on which was indorsed a rule to plead. A copy of this declaration, with notice of the rule to plead, was served on John J. Coryell, station and ticket agent at the Port Huron, Mich., station, a station along the line of the defendant railroad, on November 1, 1912. The plaintiff seeks to recover damages for personal injuries alleged to have accrued to him on December 31, 1911, by reason of the negligence of the defendant. The testimony taken on the trial of the issue formed on the plea in abatement shows that John J. Coryell had been, for about six years prior to April 5, 1912 (the date of the order creating the receivership hereinafter described), the station and ticket agent of defendant at the Port Huron station; that on that day he received notice from the receivers of their appointment, and afterwards acted under their control, and was so acting on November 1, 1912, as such station and ticket agent. That notice was as follows:\\n\\\"Detroit, Michigan, April 5, 1912.\\n\\\"12 o'clock noon.\\n\\\"All officers and agents of the Pere Marquette Railroad in the United States:\\n\\\"By virtue of an order made this day by the district court of the United States for the eastern dis trict of Michigan, in the case of the American Brake-shoe and Foundry Company against the Pere Mar-, quette Railroad Company, the undersigned have been appointed and have qualified as receivers of all the property and business of said Pere Marquette Railroad Company, of every kind and character and wherever situate and have taken possession and do hereby take possession of all such property and business and pursuant to the authority of the said court do hereby direct the continuance of said business in the names of the undersigned as receivers and until further orders substantially as it has been conducted theretofore.\\n\\\"Until further orders all agents and employees of the company connected with the business will perform the duties heretofore performed by them, and make reports and remittances as heretofore. The depositories of the company will be the depositories of the undersigned and the existing tariffs and rules and regulations will remain in force until further notice.\\n\\\"Newman Erb,\\n\\\"Dudley Waters,\\n\\\"Frank Blair,\\n\\\"Receivers.\\\"\\nThe plea in abatement (filed .with the plea of the general issue under the rule) alleges that John J. Coryell, the person upon whom the service of declaration with rule to plead was made, on November 1, 1912, was not at the date of such service an agent or employee of the Pere Marquette Railroad Company, and that the service of said declaration and rule to plead on him was wholly inoperative to bind the defendant, or to give the court jurisdiction over it. On the trial of the issue it appeared that on April 5,1912, the defendant, by the order of the district court of the United States for the eastern district of Michigan, southern division, was placed in charge of the above-named receivers. This order gave authority to the receivers, among other things, to take possession of all the railroads and other property of the defendant \\u2014 \\u2022\\n\\\"To run, manage, and operate the said railroads and property; to maintain, preserve, and protect the said property and assets, and to keep the same in proper condition and repair, so that the same may be safely and advantageously operated and used; to secure and develop the business of said railroad company; to employ and discharge and fix the compensation of all officers, managers, superintendents, attorneys, agents, and employees, as in their discretion shall from time to time be needed in the performance of their duties as such receivers; to keep the railroads and other property of said railroad company and its auxiliary companies employed and used in the manner in which they have heretofore been used and employed, so far as the said receivers, in their discretion, shall see it to be for the best interests of all parties concerned in the property and business of said railroad company; to institute and prosecute all such suits as may be necessary in their judgment for the proper protection of the property, and trust hereby vested in them; and likewise to defend all actions that may be instituted against them, and also to appear in and conduct the prosecution or defense, as the case may be, of any suits now pending or hereafter commenced in any court against the said railroad company, the prosecution or defense of which will, in the judgment of said receivers, be necessary for the proper protection of the property and business placed in their charge. That the said railroad company and its officers, directors, agents, and employees and all other persons claiming to act by, through, or under said company, and all other persons whosoever, be and hereby they are severally and collectively enjoined and restrained from interfering in any way whatever with the possession and management of any part of the property over which the said receivers are hereby appointed, or interfering in any way to prevent the discharge of their duties or their operating the same.\\\"\\nThe learned circuit judge in stating his reasons for overruling the plea in abatement, in part said:\\n\\\"As will be seen from the above brief extracts from this order, the court which made it contemplated that the receivers should operate and manage the defendant railroad temporarily. This receivership has not dissolved the corporation known as the Pere Marquette Railroad Company, nor does the proceeding contemplate the dissolution, or the winding up of the corporation. For the purpose of attaining certain ends the railroads and other property of defendant have, by order of the court, been taken from the possession and management of the regular officials of defendant, and given over to certain officers of the United States district court, called receivers. By this order the receivers are directed to operate the railroads of defendant. In other words, instead of being under the management and control of the regular officials of the corporation, the Pere Marquette Railroad was, on the 1st day of November, 1912, under the management of the receivers, but the Pere Marquette Railroad Company was still in existence. It was still a 'railroad company in this State.' It had a 'station agent' and 'ticket agent' at the Port Huron station, 'a station along the line of the railroad of such company.' This station and ticket agent was John J. Coryell, the person served in this action on November 1, 1912. It is true that the record in this case shows that said agent, on notice from the receivers, attorned to them instead of his former superiors, the officials of the company. However, the Pere Marquette Railroad Company was still 'a railroad company in this State,' though its affairs were now under a different management, and Mr. Coryell, though now under the direction of the receivers, was still the station and ticket agent of 'a railroad company in this State' within the meaning of the statute to which I shall now refer, and still is such agent. Act No. 260 of the Public Acts of 1899 (5 How. Stat. [2d Ed.] \\u00a7 13523, 13524), provides as follows:\\n\\\" 'That whenever in any suit or proceedings, either in law or equity, it shall become necessary to serve any process, notice or writing upon any railroad company in this State, it shall be sufficient to serve the same upon any station agent or ticket agent at any station or depot along the line, or at the end of the railroad of such company.' \\\"\\nThat Mr. Coryell was the station and ticket agent at the station at Port Huron, of the railroad of the defendant, there can, we think, be no question.\\nUpon whom process shall be served in order to institute a suit against the artificial person known as a corporation is in this State a matter of statute; and, as here appears, we have a special statute governing service upon railroad companies. The question here raised seems to be a new one in this State, and we are at liberty to adopt the more reasonable rule. May it be said that in this case' Mr. Coryell was, at the time of the service upon him, the proper person to receive service, notwithstanding his relation to the receivers? It is worthy of note that there was nothing in the order appointing the receivers, or in the notice served on the station or ticket agent, removing such agent from his former position. The language of the notice was significant:\\n\\\"Until further orders all agents and employees of the company connected with the business will perform the duties heretofore performed by them, and make reports and remittances as heretofore.\\\"\\nMr. Coryell might continue the agent of the company, for any purpose not inconsistent with his duty to the receivers. Such double agency is not rare. By the order appointing them the receivers, were authorized and empowered to appear and defend any suits which might be commenced against the company, the defense of which would in their judgment be necessary for the proper protection of the property and business placed in their charge. Any suit against the company to recover damages might well be said to be a suit aifecting the property which they had in charge, and service of process on the station or ticket agent at any station on the line of the road might be to the advantage of such receivers. There would be nothing incompatible in Coryell maintaining his relation to the corporation, and to the receivers at the same time. It is very evident that there is nothing found in this record justifying us in holding that he has ever been discharged from his position by either the company or the court. Outside of this State this question has been passed upon by the following courts of last resort, and the courts have differed in their conclusions: In the State of New York, in the case of Faltisko v. Railroad Co., 12 Misc. Rep. 478, 33 N. Y. Supp. 679, affirmed in 151 N. Y. 650 (46 N. E. 1146), it was held that the appointment of a receiver of a railroad company does not affect the relation of a division superintendent as \\\"managing agent\\\" of the company, on whom the statute provides process against the company may be served, where he was never removed by the company, but retains his position after the appointment of the receiver. In Tennessee, in the case of Simpson v. Railway Co., 89 Tenn. 304 (15 S. W. 735), it was held that suit against a railway corporation will not be abated upon its plea, averring that the suit had been brought after the road had passed into the hands of a receiver, and that process had been served upon a station agent of the receiver, where it appears that such agent had been originally employed by the company, and continued in the same service under the receivership. The court said:\\n\\\"It will be remembered that this is no effort on the part of the receiver to abate suits by reason of a right to intervene and compel a discontinuance of actions except in court where the receivership with litigation involving it is pending but an effort by the company to deny its agent because its road had been placed in the hands of a receiver. In such case no reason appears to us why he does not still, in a proper sense, represent the company which in another is represented by the receiver.\\\" ,\\nSee, also, Louisville, etc., R. Co. v. Cambie, 46 Ind. 277; Grady v. Railroad Co., 116 N. C. 952 (21 S. E. 304).\\nUpon the other hand, defendant has called our attention to the following cases: Cherry v. Railroad Co., 59 Ga. 446; Heath v. Railway Co., 83 Mo. 617. Cherry v. Railroad Co. has been followed by the Georgia court in Cain v. Railway, 7 Ga. App. 461 (67 S. E. 127). Defendant claims that these last-cited cases hold that when the property of a railroad company has passed into the hands of receivers, and its road is being operated by> them under an order of the court, service of process on one of the employees of the receivers will give no jurisdiction over the company. We think that the Georgia cases substantially so hold; but it is worthy of note that in Cherry v. Railroad Co. the court calls attention to the fact that the agent under the new arrangement was required to give, and did give, a bond to the State for the'faithful performance of his duties, and that the agent had ceased to act for the company, and had become the agent of the State. In Heath v. Railway Co. it appeared that the injury complained of resulted from the acts of the receiver, or his agents, within the scope of his official duty in operating the road, and that the defendant had nothing to do with it, and, by virtue of the receivership, was prohibited from operating the train, which came in contact with the plaintiff's stock.\\nWe are of opinion that the rule stated by the New York and Tennessee courts in the cases above cited is the better and more reasonable rule, and that the circuit judge did not err in overruling the plea in abatement.\\nThe order of the circuit court is therefore affirmed.\\nSteere, C. J., and Moore, McAlvay, Brooke, Kuhn Ostrander, and Bird, JJ., concurred.\"}"

mich/1684652.json

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+"{\"id\": \"1684652\", \"name\": \"BARRON v. BELONGY\", \"name_abbreviation\": \"Barron v. Belongy\", \"decision_date\": \"1924-12-10\", \"docket_number\": \"Calendar No. 31,557\", \"first_page\": \"201\", \"last_page\": \"203\", \"citations\": \"229 Mich. 201\", \"volume\": \"229\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T02:31:39.859753+00:00\", \"provenance\": \"CAP\", \"judges\": \"McDonald, Steere, Fellows, and Wiest, JJ., concurred with Moore, J.\", \"parties\": \"BARRON v. BELONGY.\", \"head_matter\": \"BARRON v. BELONGY.\\nCertiorari \\u2014 Moot Questions Will Not be Considered.\\nWhere, on certiorari to review an order of the court below granting a writ of mandamus to compel members of a school board to grant to plaintiffs the use of the auditorium of the schoolhouse on certain dates, under the provisions of Act No. 318, Pub. Acts 1917, it appears that the time when the use of said auditorium was desired has passed, that the case is academic, and that action thereon would be futile, the Supreme Court will decline to decide the questions thus presented. Clark, C. J., and Bird and Sharpe, JJ., dissenting, on the ground that the statute involved should be construed.\\nCertiorari to Wayne; Godd (George P.), J.\\nSubmitted October 7, 1924.\\n(Calendar No. 31,557.)\\nDecided December 10, 1924.\\nMandamus by Daniel D. Barron and others to compel Henry Belongy and others, constituting the school board of school district No. 4, River Rouge, Michigan, to grant the use of the auditorium of said school to plaintiffs on certain dates. From an order granting the writ, defendants bring certiorari.\\nWrit dismissed.\\nLodge & Brown, for appellants.\\nBresnahan & Groefsema (P. /. M. Hally, of counsel), for appellees.\\nCertiorari, 11 C. J. \\u00a7 341.\", \"word_count\": \"552\", \"char_count\": \"3190\", \"text\": \"Moore, J.\\nPlaintiffs made application for the use of the auditorium in the River Rouge school for the evenings of March 17, July 17, and October 17, 1924. The petition was intended to comply with the provisions of Act No. 318, Pub. Acts 1917 (Comp. Laws Supp. 1922, \\u00a7 5870 [107]). Their application was denied by the school board. A writ of mandamus was issued by the circuit judge, directing the school board to grant the use of the auditorium for those dates. The school board brought the case into this court by writ of certiorari.\\nThe case was argued and submitted in this court October 7, 1924. The last brief on the part of the plaintiffs was filed in this court November 5,1924, and the last brief on the part of the defendants was filed October 16, 1924. A recital of these dates shows that the case at this time is academic.\\nWe have often held that, when a case presents simply abstract questions of law which do not rest on existing facts, and when action by this court would be futile, we will not decide the questions thus presented. Some of the cases are Carlson v. Wyman, 189 Mich. 402; Blickle v. Board of Education, 210 Mich. 196; Tierney v. Union School District, 210 Mich. 424, and the many cases cited therein.\\nWrit is dismissed, without costs to either party.\\nMcDonald, Steere, Fellows, and Wiest, JJ., concurred with Moore, J.\"}"

mich/1770601.json

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+"{\"id\": \"1770601\", \"name\": \"STARK v. ILLINOIS BANKERS LIFE ASS'N\", \"name_abbreviation\": \"Stark v. Illinois Bankers Life Ass'n\", \"decision_date\": \"1922-10-02\", \"docket_number\": \"Docket No. 49\", \"first_page\": \"108\", \"last_page\": \"111\", \"citations\": \"220 Mich. 108\", \"volume\": \"220\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T19:50:21.583640+00:00\", \"provenance\": \"CAP\", \"judges\": \"Wiest, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.\", \"parties\": \"STARK v. ILLINOIS BANKERS LIFE ASS\\u2019N.\", \"head_matter\": \"STARK v. ILLINOIS BANKERS LIFE ASS\\u2019N.\\nInsurance \\u2014 Lute Insurance \\u2014 'Failure of Insurer\\u2019s Agent to Forward Monet in its Hands Insufficient Ground for Forfeiture.\\n\\u2022 Where a bank was appointed agent of a life insurance company to collect assessments, and a policy holder who was a depositor in said bank authorized it to pay his assessments and charge them to his account, which plan was followed for a period of years, the failure of the bank to forward an assessment until after the death of assured, although he had sufficient money on deposit to meet it when due, was the failure of the company, and forfeiture of the policy may not be based thereon.\\nError to Genesee; Brennan (Fred W.), J.\\nSubmitted June 8, 1922.\\n(Docket No. 49.)\\nDecided October 2, 1922.\\nAssumpsit by Laura May Stark and another against the Illinois Bankers Life Association on a policy of insurance. Judgment for plaintiffs on a directed verdict. Defendant brings error.\\nAffirmed.\\nCarton, Roberts & Stewart, for appellant.\\nGeorge W. Cook, for appellees.\", \"word_count\": \"1053\", \"char_count\": \"6228\", \"text\": \"Fellows, C. J.\\nJune 29, 1912, defendant issued a policy of- insurance, called a certificate of membership, upon the life of Virgil L. Stark of Flint, in the sum of $5,000. Plaintiffs were named as beneficiaries. The policy contained the usual forfeiture clause for nonpayment of assessments. The Industrial Savings Bank of Flint was the depository of defendant and its agent in collecting assessments. The testimony of defendant's secretary as to the plan used by defendant to collect assessments established this fact. Mr. Stark was a depositor of the bank and at the time of the transaction here involved had in the bank sums largely in excess of the assessment. Defendant's method of collecting its assessments was to send to its depository, the Industrial Savings Bank, on or before the first of the month, receipts for the assessments together with a list of the same, and at the same time' send notice of the assessment to the insured. The bank also displayed in its office notice that the assessments, were due. At the end of the month the bank remitted to the company the amount collected less its commission. There was an arrangement between the bank, and Mr. Stark, carried out for a period of some years,, that whenever an assessment was made by defendant the bank used sufficient of Mr. Stark's funds in its hands to pay the assessment, charged the amount to his account, and delivered the receipt to him with his canceled checks. January 1, 1920, an assessment was levied by defendant and the receipts including that of Mr. Stark were sent to the Industrial Savings Bank. The assessment was payable during the month of January. Mr. Stark's assessment was $12.50. The clerk in the bank who usually had charge of the collection of the assessments was ill, and the usual manner of taking care of Mr. Stark's assessment was not pursued. Mr. Stark died February 12th. The bank, upon discovering its failure to remit the assessment and a few days after his death, sent defendant a draft for the amount. The draft was cashed in due course -of business, but the amount of it was later tendered 'back and liability was denied. This action was thereupon brought. At the close of the proofs both sides :asked for a directed verdict. One was directed for plaintiffs.\\nAs. we have already stated, the agency of the Industrial Savings Bank for defendant was established. As such agent it had in its possession sufficient money to meet this assessment. It had authority from Mr. Stark to apply such funds to its payment. It failed to make such application. Under such circumstances, does the policy lapse for nonpayment of the assessment? Under the former holdings of this court this question must be answered in the negative. Lyon v. Insurance Co., 55 Mich. 141 (54 Am. Rep. 354) ; Albrecht v. Annuity Ass'n, 129 Mich. 444; Johnson v. Casualty Co., 184 Mich. 406 (L. R. A. 1916A, 475) ; Clifford v. Benefit Ass'n, 208 Mich. 448. In the last cited case we held (quoting from the syllabus):\\n\\\"A mutual benefit association may not declare a forfeiture of the policy of insurance where it has in its hands money belonging to the policyholder sufficient to pay and discharge the dues and assessments when due and payable.\\\"\\nAnd we there cited numerous cases from other jurisdictions where like holdings will be found. In addition to the authorities there cited see Chickering v. Insurance Co., 116 Mass. 321; Illinois Bankers' Life Ass'n v. Dowdy, 149 Ark. 72 (281 S. W. 183). The Arkansas case is particularly applicable as the facts are substantially identical with those in the instant case and the defendant was the instant defendant, and the same plan of collecting assessments above detailed was used. We quote the syllabus of that case as it appears in the Southwestern Reporter:\\n\\\"Where insurer authorized bank to collect premiums, and insured with a sufficient deposit to cover the premium directed cashier to pay the premium and to charge amount thereof to his account, before the premium became due, and the cashier agreed to do so, there was a timely payment of premium, though amount thereof was not actually entered against depositor's account until after expiration of the period of grace for payment of premium.\\\"\\nNot only has this court settled the question for this jurisdiction but our conclusion finds support in numerous other jurisdictions and is in accordance with the overwhelming weight of authority. Griffith v. Life Ass'n, 141 Iowa, 414 (119 N. W. 694), relied upon by defendant's counsel, has a tendency to sustain the opposite view, but the facts there were somewhat different, and in so far as it disagrees with our former holdings must be disregarded.\\nHere the defendant by its agent, the Industrial Savings Bank, had in its hands money belonging to the insured more than sufficient to meet the assessment; such agent had authority to appropriate and apply sufficient thereof to pay the assessment; defendant's agent did not seasonably make the application; its failure so to do was the failure of defendant which it can not now urge as a defense to its liability on the policy.\\nThe judgment must be affirmed.\\nWiest, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.\"}"

mich/1772650.json

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+"{\"id\": \"1772650\", \"name\": \"WALL v. STUDEBAKER CORPORATION\", \"name_abbreviation\": \"Wall v. Studebaker Corp.\", \"decision_date\": \"1922-07-20\", \"docket_number\": \"Docket No. 5\", \"first_page\": \"434\", \"last_page\": \"439\", \"citations\": \"219 Mich. 434\", \"volume\": \"219\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T19:40:14.285386+00:00\", \"provenance\": \"CAP\", \"judges\": \"Fellows, C. J., and Wiest, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.\", \"parties\": \"WALL v. STUDEBAKER CORPORATION.\", \"head_matter\": \"WALL v. STUDEBAKER CORPORATION.\\n1. Master and Servant \\u2014 Workmen\\u2019s Compensation Act \\u2014 Abrogates Parent\\u2019s Right of Action for Loss of Minor\\u2019s Services.\\nThe provisions of the workmen\\u2019s compensation act (2 Comp. Laws 1915, \\u00a7\\u00a7 5429, 5426) giving to minors the same power to contract, as to employment, as adults, and limiting the liability of employers to that provided in the act, abolish a parent\\u2019s right of action for the loss of services of his minor son injured while legally employed under that act.\\n2. Constitutional Law \\u2014 Workmen\\u2019s Compensation Act \\u2014 Abrogating Parent\\u2019s Right of Action for Loss of Minor\\u2019s Services Constitutional.\\nThe provisions of the workmen\\u2019s compensation act (2 Comp. Laws 1915, \\u00a7\\u00a7 5429, 5426) abolishing the parent\\u2019s right of action for loss of services of a minor child who is legally employed under the act, is not unconstitutional, the parent having no such vested right in the value of the minor\\u2019s services that it cannot be taken away by the legislature.\\nOn applicability and effect of workmen\\u2019s compensation acts in case of injuries to minors, see note \\u2019in 14 A. L. R. 818.\\nError to Wayne; Goff (John H.), J.\\nSubmitted April 28, 1922.\\n(Docket No. 5.)\\nDecided July 20, 1922.\\nCase by Fred C. Wall against the Studebaker Corporation for loss of wages of minor son in defendant\\u2019s employ. Judgment for defendant on a directed verdict. Plaintiff brings error.\\nAffirmed.\\nDohany & Dohany, for appellant.\\nBeaumont, Smith & Harris (Hal H. Smith and Albert E. Meder, of counsel), for appellee.\", \"word_count\": \"1619\", \"char_count\": \"9370\", \"text\": \"McDonald, J.\\nThe plaintiff is the father of Harry C. Wall, a minor, who was injured on the 3d day of July, 1918, while employed by the defendant. The defendant is a Michigan corporation engaged in the business of manufacturing automobiles in the city of Detroit. ' This suit was brought by the father to recover wages lost by the minor by reason of his injuries. The case was tried on a stipulated statement of facts, from which it appears that Harry C. Wall suffered injuries to his hand while working on a punch press which was operated by electricity; that the injury was the result of negligence of the defendant; that Harry C. Wall was not guilty of contributory negligence; that he did not assume the risk of his employment; that his injury was not due to any act of negligence of a fellow-servant, and that the damages sustained by the father were $500. It also appears in the stipulation that on the 17th day of August, 1912, prior to the date of the accident, the defendant filed with the industrial accident board of the State of Michigan its written acceptance of the provisions of the workmen's compensation act; that thereafter defendant conformed in all respects to the provisions of the act. That at the time it was working under, and was subject to, the provisions of the act; that Harry C. Wall had been in the employ of the defendant for several months before the accident, and that at the time of his hiring, and at no time thereafter, did he, or anybody in his behalf, give any notice in writing to the defendant that he did not consent to come under the provisions of the workmen's compensation act. That after the accident Harry C. Wall made an agreement with the defendant in regard to compensation for loss of wages due to his injuries, in which it was stipulated that he should be paid $10 per week for a total period of 25 weeks.\\nAfter this stipulation was made upon the record, upon motion of counsel for defendant, the court directed a verdict of no cause of action on the theory that the workmen's compensation act has abolished the plaintiff's cause of action for loss of services of his minor child while legally employed under that act.\\nThe plaintiff, in appealing to this court, contends that the workmen's compensation act did not abolish the right of action of a father for the loss of the services of his minor son, and that if the statute is to be so construed it is unconstitutional. We think that the plain language of this statute clearly indicates that it was the intention of the legislature to abrogate the parent's right of action for loss of services of his minor child while employed under the compensation act. Part 1, \\u00a7 7 (2 Comp. Laws 1915, \\u00a7 5429), enacts that,\\n\\\"The term 'employee' as used in this act shall be construed to mean:\\n\\\"2. Every person in the service of another under any contract of hire including minors, who are legally permitted to work under the laws of the State who, for the purposes of this act, shall be considered the same and have the same power to contract as adult employees.\\\"\\nThere can be no mistaking the meaning and effect of this section of the statute. As to employment under this act, he shall have the same power to contract as an adult. It removed his minority for the purposes of the act, and invested him with the right to contract for employment and to recover in his own name all the damages resulting from injuries. By putting him in the adult class, it removed the only basis on which the parent's right of action could be founded, and gave to the minor the right to do for himself all of the things which the parent could do for him.\\nThis view is strengthened by the language of section 4, part 1 of the act (2 Comp. Laws 1915, \\u00a7 5426), which reads as follows:\\n\\\"Any employer who has elected, with the approval of the industrial accident board, hereinafter created, to pay compensation as hereinafter provided, shall not be subject to the provisions of section one; nor shall such employer be subject to any other liability whatsoever, save as herein provided for the death of or personal injury to any employee, for which death or injury compensation is recoverable under this act, except as to employees who have elected in the manner hereinafter provided not to become subject to the provisions of this act.\\\"\\nCounsel for the plaintiff insist that the language of this section clearly conveys the intent to retain the parent's right of action; that it was the intent to abrogate the common-law liability only when a substitute was provided therefor under the terms of the act. We cannot so construe it. The language used is plain and unequivocal and expressly states that an employer electing to pay compensation, \\\"shall not be subject to any other liability whatsoever.\\\"\\nThat this was the intention of the legislature also appears in the title of the act, which reads:\\n\\\"An act relating to the liability of employers for injuries or death sustained by their employees, providing compensation for the accidental injury to or death of employees and restricting the right to compensation or damages in such cases to such as arq provided by this act.\\\"\\nCounsel for plaintiff rely on Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, in which it was said:\\n\\\"The act provides for the damages of the minor. It does not indicate that the parent's action for loss of services is affected.\\\"\\nThe question we are considering was not directly involved in that case and, as was said in Hilsinger v. Zimmerman Steel Co., Iowa (187 N. W. 493):\\n\\\"The remark was used argumentatively only in sustaining the constitutionality of the statute, and can hardly be deemed a precedent upon the question before us.\\\"\\nSome of the courts of other States have passed upon this question, but their decisions naturally rest upon the various statutes, which are not identical with ours. See Buonfiglio v. Neumann & Co., 93 N. J. Law, 174 (107 Atl. 285) ; Adkins v. Supply Co., 81 W. Va. 449 (94 S. E. 506); King v. Viscoloid Co., 219 Mass. 420 (106 N. E. 988, Ann. Cas. 1916D, 1170).\\nWe think that our statute abolishes the parent's right of action for loss of services of a minor child who has chosen to come within the provisions of the act.\\nCounsel for the plaintiff urge that if the act is to be so construed it is unconstitutional, but have not stated the specific grounds upon which their conten tion is based. We can conceive of no good reason for holding that the act in this respect is unconstitutional. The parent has no such vested right in the value of the minor's services that the legislature cannot take it away. His right is based upon the minority of the son, and is not superior to the power of the legislature to change or abolish.\\nIn Adkins v. Supply Co., supra, it was said:\\n\\\"But this concession (the right of the father to the custody and control of the minor and to the latter's earnings) does not necessarily preclude the exercise of legislative authority to change, modify, or entirely abrogate such right of compensation, or to substitute in lieu thereof another more or.less comprehensive, speedy and convenient mode of obtaining restitution for such deprivation of the minors services.\\\"\\nSee, also, Hilsinger v. Zimmerman Steel Co., supra.\\nAnd in Mackin v. Detroit-Timkin Axle Co., supra, this court, speaking by Mr. Justice Steere, said:\\n\\\"It can be assumed without misgiving that there is no vested right in any remedy for a tort yet to happen which the Constitution protects. Except as to vested rights, the legislative power exists to change or abolish existing statutory and common-law remedies.\\\"\\nWe think the act as affecting the parent's right to the minor's services is not unconstitutional.\\nJudgment is affirmed, with costs to the defendant.\\nFellows, C. J., and Wiest, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.\"}"

mich/1772734.json

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+"{\"id\": \"1772734\", \"name\": \"SPENCER v. PHILLIPS & TAYLOR\", \"name_abbreviation\": \"Spencer v. Phillips & Taylor\", \"decision_date\": \"1922-07-20\", \"docket_number\": \"Docket No. 50\", \"first_page\": \"353\", \"last_page\": \"361\", \"citations\": \"219 Mich. 353\", \"volume\": \"219\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T19:40:14.285386+00:00\", \"provenance\": \"CAP\", \"judges\": \"Fellows, C. J., and Wiest, McDonald, Clark, Bird, Sharpe, and MoorE, JJ., concurred.\", \"parties\": \"SPENCER v. PHILLIPS & TAYLOR.\", \"head_matter\": \"SPENCER v. PHILLIPS & TAYLOR.\\n1. Negligence \\u2014 'Personal Injuries \\u2014 Contributory Negligence' \\u2014Failure to Dim Lights \\u2014 Evidence\\u2014Question for Jury.\\nIn an action for personal injuries caused by a collision in the nighttime between the automobile, going east, in which plaintiff was riding, driven by her husband, and defendant\\u2019s taxicab, going west, where the collision occurred on the south side of the road, testimony by her husband that he dimmed his lights and turned from the center of the road 120 feet west of where the collision occurred, held, to present a question of fact for the jury on the issue of his contributory negligence, and the trial judge was in error in directing a verdict for defendant.\\n2. Same \\u2014 Violation of Statute No Bar to Action Unless a Causal Connection Shown.\\nThat plaintiff\\u2019s husband had not yet received his license, although paid for, and he was driving his car without license plates at the time of the accident, would not bar her right of action, since, even if he was technically guilty of violating the motor vehicle' statute and therefore guilty of negligence per se, it was in a particular which in no sense did or could cause or contribute to the accident.\\nError to Genesee; Black (Edward D.), J.\\nSubmitted April 11, 1922.\\n(Docket No. 50.)\\nDecided July 20, 1922.\\nCase by Ada L. Spencer against Phillips & Taylor, a copartnership, for personal injuries. Judgment for defendants on a directed verdict. Plaintiff brings error.\\nReversed.\\nSelden S. Miner and Leon F. Miner (Roy E. Brownell, of counsel), for appellant.\\nChandler <6 Friegel, for appellees.\", \"word_count\": \"2863\", \"char_count\": \"15950\", \"text\": \"Steere, J.\\nPlaintiff was severely injured while riding from Owosso to Flint with her husband and children in an automobile by a collision between her husband's car and a taxicab being driven from Flint to Owosso by a driver of defendants named Ordway. This action was brought to recover damages for her personal injuries imputed to the negligence of Ordway. Upon the trial the court directed a verdict for defendants. Defendants are copartners operating as a common carrier for hire a line of automobiles between Flint and Owosso running on a published schedule, making extra trips on Saturdays and Sundays. Plaintiff is a married woman over 40 years of age living in Flint with her family. Her husband, William Spencer, a carpenter by trade, owned a Ford touring car and was an experienced driver. He had the car overhauled and put in good condition during the winter, and in the spring, on April 6,1918, applied and paid for a license which he did not receive until April 15th, the day following the accident. In the meantime he put a placard on this car stating \\\"License applied for.\\\" On Sunday, April 14, 1918, he took his family in the car on a trip to visit Mrs. Spencer's parents who lived near Owosso. They had with them 5 of their children ranging in age from 2% to 17 years. Starting home that evening at about 8 o'clock they passed through Owosso and continued east on the Owosso road to Flint, an east and west thoroughfare connecting the two cities, improved as a State award road, graded and graveled for a width of about 20 feet between gutters, or side depressions about five inches in depth. The two cities are about 25 miles apart. Seventeen miles west of Flint is a highway crossing called \\\"Phelps' corner.\\\" Just east of this crossing and opposite the residence of Mr. Phelps, located on the north side of the road, their car collided with a taxicab of defendants' going west with 5 passengers, and driven by Ordway who knew the road well and was then making his third round trip on that day. He gives the time of the accident 'as \\\"shortly after 9 o'clock,\\\" and of his leaving Flint \\\"between 8 and 9 o'clock.\\\" Other witnesses time the accident as late as 10 o'clock.\\nThe collision was undisputedly a violent and serious one, breaking and disabling both cars so that they remained unmoved until other cars came for them. No one in the taxicab was thrown out or seriously hurt. Spencer had an eye put out and fell unconscious, in which condition he remained until the following day. Plaintiff who sat beside him holding their baby was found lying unconscious under the right-hand running-board of their car and taken into Phelps' house. A physician called to attend them, found her jaw was broken and that she had sustained, other serious injuries. It is undisputed the collision, occurred on the south and right side of the road to plaintiff's car, in the direction it was being driven.\\nThere was abundant testimony tending to show the negligence of the taxicab driver, undisputed, as the trial court stated, but the court directed a verdict for defendant on the ground that Spencer was shown by his own testimony to be guilty of contributory negligence in not dimming his lights \\\"in seasonable time to prevent (permit) the safe driving of defendants' car.\\\" Of this the court further said:\\n\\\"Mr. Spencer, at the time that he was in the center of the highway, driving at a point, the greatest distance, the testimony shows, to be 120 feet in a west line from the point of the accident, or 120 feet from the place of the accident, by drawing a line from where the accident occurred, north across the highway \\u2014 the undisputed testimony shows by Mr. Spencer, he being there, that he did not dim his lights, but in' turning to the right he dimmed his lights and continued along on the south side of the highway. The testimony, undisputedly, of Mr. and Mrs. Spencer both was that the lights from the defendants' car was shining into their faces and blinding them at that time.\\\"\\nApparently the court predicated contributory negligence on the proposition that Spencer did not dim his lights until the approaching car was within 120 feet of him. The substance of testimony given by Spencer and other occupants of his car upon the subject is that shortly before they crossed the intersecting highway at Phelps' corners they saw a single, approaching light in the distance and just after crossing he swung from near the center of the road to the right or south side, dimming his lights as he did so, and continued at reduced speed close along that side of the road leaving the approaching car ample room to even pass along the center, but when close to them its driver quickly swung diagonally across to the south side of the road and struck them. Ordway admits turning across to the south side of the road just before the accident. His explanation on direct-examination was\\u2014\\n\\\"When he (Spencer) got by the corner, just a little the way it looked, he came to the north side of the road, and he drove a little distance, I could not say just exactly how far the lights were in front of me, I could not see, and he got right up to me. I was thinking there was something going to happen; he was either going to hit me head on or I had to do something to get out of the way, so I just turned to my right. That is the way it did occur.\\n\\\"Q. Could you tell how far you were at that time west before you turned south as you state?\\n\\\"A. About 200 feet.\\\"\\nOn direct-examination Spencer said in part:\\n\\\"As I came across the four corners, I was in the center part of the highway, the traveled part of the road, and going about 12 miles per hour. I saw one light approaching me, a very bright light. I could not distinguish any thing but the light. I turned out of the center of the highway about 120 feet west of where the accident occurred. I turned to the right. As I turned out of the. road, to \\u2022 turn out of the road, I threw the switch over on to the; dimmer side. It dimmed the lights. I had two lights on my automobile. < It (defendants' car) was approaching me all the time. It appeared to be coming rather fast. I think it was coming about 25 miles per hour. After it got pretty near to me it turned across the road, south across the road in front of me, turned so quick I could not hardly tell what did happen, just a short time between then and the accident, just a second after it turned the accident happened. I didn't know anything after that. I was unconscious.\\\"\\nOn cross-examination:\\n\\\"I saw a light coming directly towards me. I could not tell exactly how far it was. It was up the road quite a long ways; I noticed they only had one light. As soon as I got just, by the corner, just after I saw them, I turned by the right \\u2014 the street on the right side of the road, dimmed \\u00edny car and proceeded. When I put on the dimmers and started to use the foot brakes they were down the r.oad a considerable distance.\\\"\\nPlaintiff testified in part as follows:\\n\\\"As we were approaching the Phelps corner I was riding with him in the front seat with my 2% year old baby in my lap. After we had passed the intersection of the highway I saw one light approaching; I could not tell how far it was away, it was some distance. After we passed east of the intersection of the highway my husband applied his dimmers and turned out the right hand side of the road, shortly after we passed the intersection of the highway the right hand wheel was on the edge of the grass; the light from the east continued approaching. After we had turned to the right and applied our dimmers and the machine slowed down this light seemed to be coming directly toward us, then it made' a quick turn in a southwesterly direction, turned across the road, in an instant the accident happened; all I could see was the light, I could not see the car.\\\"\\nOn cross-examination:\\n\\\"Q. Now, after you turned out to the right, did it or did it not blind you?\\n\\\"A. Not right away, it did shortly after we turned out; I don't know how far the cars were apart.\\n\\\"Q. You don't remember; you were interested; you don't remember just what did happen?\\n\\\"A. Not after the car came across in front of us, it happened so quickly I didn't know anything after that, I was not conscious that I was being thrown out of the car.\\\"\\nTheir daughter Verne, then 17 years of age, testified in part:\\n\\\"I noticed him (Spencer) turn out to the side of the road and dim his lights. Before that he was traveling in the center of the highway.\\n\\\"Q. Could you tell us how far the light was that was approaching from the east, what distance from you when you noticed your father turn out to the side of the road?\\n\\\"A. No, sir, I would say it was quite a distance. My father turned to the right. I continued noticing the light approaching us from the east. It had just one light, which was very bright. It did not become dim in any way until the crash came. After my father turned out he was on the right side of the road. The other car seemed to be coming directly towards us; it seemed to be in the center of the highway; It turned directly in front of us toward those barns. Before the time it turned, I could not say what kind of a machine was in back of this light; I could not say whether it was a motorcycle, automobile or what it was. After it turned I knew that it was a car then.\\\"\\nOn cross-examination:\\n\\\"Q. Did your father change the course of his car at all after the other car had changed its course?\\n\\\"A. No, sir, we were nearly stopped then, our car was nearly stopped when the car turned and clashed into us.\\\"\\nBoth of these cars were Fords, with the electricity for the lights supplied from the magneto, their brightness increasing or decreasing according to the speed of the motor. Spencer had provided his with a dimmer equipment. Defendant had no dimmers. After leaving Flint on that trip Ordway stopped on the road and spent some time fixing or trying to fix his lights. The testimony is undisputed that when the accident occurred but one of his lights was burning. Taking Spencer's testimony as true, he turned to his right side of the road and dimmed his lights when the taxicab was a sufficient distance away to at least make it a question for the jury whether or not he did so \\\"within a reasonable time to permit the safe driving of defendants' car\\\" so far as his lights were concerned. The issue of Spencer's contributory negligence was an issue of fact to be determined by the jury.\\nA further point, raised in court below but not passed upon, and renewed here, is that in violating the automobile law by driving his car without a license Spencer was guilty of negligence per se, which precludes plaintiff from recovery. So far as extenuating circumstances go Spencer was, in his technical violation of the statute, situated similar to Ordway who had applied for a chauffeur's license some time before the accident but did not receive it until after. Spencer had made proper application, paid the imposed specific tax and done whatever was required to entitle him to a license for his car. In lieu of his license plates he labeled it with a statement of that fact. Conceding, however, that he was technically guilty of violating the statute and therefore guilty of negligence per se, it was in a particular which in no sense did or could cause or contribute to the accident. The injury intended to be prevented by the law-violated is not the injury complained of here. If it were, a presumption might arise that its nonobservance caused the accident and resulting injury.\\nThe question just as presented here, to defeat recovery, has not been squarely passed upon by this court and the authorities elsewhere are not entirely in harmony upon it, as said in Stuch v. Town, 178 Mich. 477. We think, however, the citations there made as bearing upon that question tend to the view that neither a plaintiff or defendant can avail himself of the bare fact the opposite party was guilty of violating a statute, unless it caused or contributed to the injury. In 1 Cooley on Torts (3d Ed.), p. 269, it is said:\\n\\\"The principle is, that to deprive a party of redress because of his own illegal conduct, the illegality must have contributed to the injury.\\\"\\nIn Hughes v. Atlanta Steel Co., 136 Ga. 511 (71 S. E. 728, 36 L. R. A. [N. S.] 547, Ann. Cas. 1912C, 394), it is said in an exhaustive opinion citing numerous cases and modifying previous decisions of that court:\\n\\\"The mere fact that the plaintiff on the one hand, or the defendant on the other, was engaged in violating the law in a given particular, at the time of the happening of the accident, will not bar the right of action, of the former, nor make the latter liable to pay damages, unless such violation of law was the efficient cause of the injury.\\\"\\nIn Sutton v. Town of Wauwatosa, 29 Wis. 21 (9 Am. Rep. 534), after discussing the conflicting authorities the court says of those holding violation of the law will not avail unless causal connection is shown:\\n_ \\\"It seems quite unnecessary, if indeed it were possible, to add anything to the force or conclusiveness of the reasons assigned in some of these cases in support of the views taken, and decisions made by the courts. The cases may be summed up and the result stated generally to be the affirmance of two very just and plain principles of law as applicable to civil actions of this nature, namely: First, that one party to the action, when called upon to answer for'the consequences of his own wrongful act done to the other, cannot allege or reply the separate or distinct wrongful act of the other, done not to himself nor to his injury, and not necessarily connected with, or leading to, or causing or producing the wrongful act complained of; and, secondly, that the fault, want of due care or negligence on the part of the plaintiff, which will preclude a recovery for the injury complained of, as contributing to it, must be some act or conduct of the plaintiff having the relation to that injury of a cause to the effect produced by it.\\\"\\nThese conclusions are well sustained by the great weight of authority and the better reasoning. The case is therefore reversed, with costs to plaintiff, and a new trial granted.\\nFellows, C. J., and Wiest, McDonald, Clark, Bird, Sharpe, and MoorE, JJ., concurred.\"}"

mich/1786049.json

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+"{\"id\": \"1786049\", \"name\": \"ROWE v. VANDER KOLK\", \"name_abbreviation\": \"Rowe v. Kolk\", \"decision_date\": \"1936-12-28\", \"docket_number\": \"Docket No. 109, Calendar No. 39,204\", \"first_page\": \"564\", \"last_page\": \"570\", \"citations\": \"278 Mich. 564\", \"volume\": \"278\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T02:32:22.207850+00:00\", \"provenance\": \"CAP\", \"judges\": \"Fead, Wiest, Butzel, Bushnell, Sharpe and Toy, JJ., concurred. Potter, J., did not sit.\", \"parties\": \"ROWE v. VANDER KOLK.\", \"head_matter\": \"ROWE v. VANDER KOLK.\\n1. Automobiles \\u2014 \\u2019Host and Guest \\u2014 'Negligence \\u2014 Wilful and Wanton Misconduct.\\nSince it is impossible to mark with exact nicety the lin\\u00a9 between ordinary negligence on the one hand and gross negligence or wilful and wanton misconduct on the other, the factual aspect of each case involving the liability of a host motorist for injuries suffered by his guest passenger is, of necessity, the determining factor (1 Comp. Laws 1929, \\u00a74648).\\n2. Same \\u2014 Guest Passengers \\u2014 Wilful and Wanton Misconduct\\u2014 Evidence.\\nIn guest passenger's action against host motorist for injuries sustained when ear, traveling at about 40 miles an hour within city limits on a through highway at about 9:30 p. m. late in December, collided with rear end of truck and semi-trailer, moving slowly in the same direction, evidence that, shortly prior to starting on trip from roadhouse to city, plaintiff, defendant and another passenger had consumed a quart of sloe gin and six bottles of beer; that, notwithstanding weather was clear and cold, street lights and lights of two gasoline stations, the visibility was poor as the windshield had no defroster and space cleared by heat from palm of hand ivas insufficient; highway was slippery and truck traffic known to be heavy and defendant and other passenger did not see truck until about 15 feet therefrom held, insufficient to submit to jury question of whether host was guilty of gross negligence or wilful and wanton misconduct within meaning of guest passenger act (1 Oomp. Laws 1929, \\u00a7 4648).\\n3. Same \\u2014 Liability op Host \\u2014 Record.\\nIn guest passenger\\u2019s action against host motorist, latter held, not liable where record shows he was not guilty of gross negligence or wilful and wanton misconduct in omitting to use care and diligence to avert a threatened danger after he was chargeable with knowledge of such danger (1 Oomp. Laws 1929, \\u00a7 4648).\\nAppeal from Kalamazoo; Weimer (George V.), J.\\nSubmitted October 15, 1936.\\n(Docket No. 109, Calendar No. 39,204.)\\nDecided December 28, 1936.\\nCase by Kenneth B. Rowe against Neil Vander Kolk for personal injuries sustained while a guest passenger in defendant\\u2019s automobile. Directed verdict and judgment for defendant. Plaintiff appeals.\\nAffirmed.\\nMason, Sharpe & Stratton, for plaintiff.\\nJackson, Fitzgerald <& Dalm (Ilarry E. Rodgers,' of counsel), for defendant.\", \"word_count\": \"2026\", \"char_count\": \"11879\", \"text\": \"North, C. J.\\nPlaintiff, a guest in defendant's automobile, seeks to recover damages for personal injuries caused by defendant's car colliding with the rear end of a truck and semi-trailer traveling in the same direction on a public highway. At the close of plaintiff's proofs defendant's motion for a directed verdict was granted. This was on the ground that plaintiff had not offered testimony that defendant was guilty of gross negligence or wilful and wanton misconduct which caused the accident and, therefore, recovery was barred by the provisions of the so-called guest act. 1 \\u2022 Comp. Laws 1929, \\u00a7 4648. Plaintiff has appealed.\\nThe following statement of facts, adopted almost verbatim from appellant's brief, sets forth the testimony in the lig'ht most favorable to him:\\nThe defendant and appellee, hereinafter called the defendant, on December 23, 1935, at approximately 9:30 p. m. drove his automobile into the rear end of a truck and semi-trailer traveling south and in the same direction as defendant. The truck was lighted and was not parked on the pavement. The plaintiff was a guest in the car of defendant, and at the time of the collision was asleep in the front seat. Alfred Gunn, a mutual friend of plaintiff and defendant, was in the back seat. The collision took place on US-131 inside the- city limits of Kalamazoo. The traffic on this highway is very heavy. There are a great number of trucks that use this highway during' the night. The defendant was very familiar with the traffic conditions on this highway, and had traveled over it many times. US-131, at the time here in question, was bare in spots and in spots was covered with snow and ice. Inside the city of Kalamazoo, where the collision occurred, the pavement was covered with snow and ice, except that there was a rut in the center where the traffic had worn through to the pavement but the pavement was slippery. The defendant was familiar with this condition. At the time in question the weather was clear and very cold, windshields were rapidly frosting* over, and it was nearly impossible to maintain space on the windshield for vision without some mechanical device for that purpose. Defendant had no such device on his car. It was necessary to hold the palm of the hand flat against the windshield so that the heat from the hand would melt the frost. The collision occurred between two street lamps inside the city; there were two lighted gasoline stations on either side of the highway about 250 feet north of where' the collision happened. The locality was lighted from the street lamps and the lights on the gasoline stations. Plaintiff and defendant worked for the Lockshore Dairy Company. Plaintiff had been driving a truck throughout the day. Between 6 and 7 p. m. the plaintiff had driven to the company's farm about three miles north of Richland for milk. At that time plaintiff experienced trouble with the windshield frosting over, and found it necessary to melt the snow with his hand, but at such times slowed down the speed of his truck to a speed commensurate with safety. Defendant and Alfred Gfunn rode with him to the company's farm. After returning from the farm and completing their duties at the dairy, they divided among them a quart of sloe gin. They then got into the defendant's car and drove to the California Camp, a roadhouse three or four miles north of Kalamazoo, located on US-131. While there they each had two bottles of beer. They started for Kalamazoo from the California Camp about 9:25 p. m. and it was on their way back and after reaching the city limits that the collision happened. On the way home from the California Camp the defendant's windshield completely frosted over. He had to hold his hand on the windshield to melt the frost. His only vision consisted of the space so melted by the heat from his hand. He could only see through this opening to a certain extent. At the time of the collision the defendant was trying to make an opening on the windshield for vision. The truck loomed up all at once. Alfred Grunn who was in the rear seat saw the lights of the truck just before the impact. He says \\\"just before we hit it,\\\" probably when five or ten feet away, and that defendant applied the brakes about the same time Crunn saw the truck. Defendant estimated that the truck was 15 feet away when he first saw it. At the time of the collision defendant was driving at a speed of about 40 miles per hour. On the return trip defendant had been driving 35 to 40 miles per hour. Plaintiff was asleep and knew nothing about the collision until after it happened, but before leaving the camp he had asked defendant if he could drive all right. As a result of the impact defendant's car was practically demolished, the radiator was pushed back, the hood was pushed back through the windshield, and plaintiff was seriously injured. Defendant admitted that the frosted windshield caused the accident.\\nWe think the circuit judge, under the particular facts of this case, arrived at the right result and that the judgment entered in the trial court should be affirmed. It is not possible to mark with exact nicety a line which may be said to be the boundary between ordinary negligence on the one hand and gross negligence or wilful and wanton misconduct on the other. Instead the factual aspect of each case is of necessity the determining factor. Schneider v. Draper, 276 Mich. 259.\\nThe proximate cause of this accident was that when driving at too great a rate of speed, in view of the prevailing conditions affecting safety in driving, defendant suddenly and without warning came upon a truck proceeding in the same direction at a slow rate of speed. Yisibility was poor, the highway slippery, and truck traffic known to be rather heavy. Defendant was negligent as a matter of law; but the test in the instant case is whether there is testimony which would sustain a jury's verdict that defendant was guilty of gross negligence or wilful and wanton misconduct.\\nWhat defendant did in the instant case was in the regular course of operating his automobile, except in some respects done negligently. In other words he was not attempting some reckless act wholly dissociated with the ordinary incidents of operating his machine. Here defendant was not continuing in a course of reckless conduct by racing at 60 or 70 miles per hour when his vision was obscured by dust, going over a detour covered with loose gravel and knowing another car was immediately in front of him as in McLone v. Bean, 263 Mich. 113; nor was his conduct in driving on a par with that of the defendant in Goss v. Overton, 266 Mich. 62, where at a time when he was passing other vehicles on the highway the defendant continued driving at the rate of 60 miles per hour, with vision obscured by dust, on a highway covered with loose gravel, when he was knowingly approaching a curve. Likewise we think on the facts the instant case is distinguishable as to the question involved from Schneider v. Draper, supra, where the testimony was susceptible of the construction that the defendant, intentionally \\\"zigzagging\\\" his car from curb to curb at excessive speed, ran directly at a pole in the highway, closer than he knew he ought and for the purpose of frightening his passengers; and the same may be said of our more recent decision in Thomas v. Parsons, ante, 276, where after ample warning of the dangerous character of his driving the defendant persisted in his course of misconduct, increased his rate of speed to 70 or 80 miles per hour, and then added to the hazards by attempting to see how close he could drive to another car ahead without hitting it, for the purpose of scaring the occupants of both Ms own and the other car. In short, we are impressed with the fact that the element of deliberate recklessness, prompted by something else other than the operation of defendant's own automobile, as found in the cited cases, is lacking in the instant case. In this particular the instant case differs from the decisions of this court upon which appellant relies. Here defendant was continuing to operate his car in the same manner in which he had safely proceeded thus far on his journey back to Kalamazoo; but suddenly and without warning the proximate cause of the accident developed in the unexpected overtaking of a heavy, slow-moving vehicle.\\nA characteristic element in many, if not all, of the cases in which this court has held a question of fact was presented under the guest act is that there was continued persistency in defendant's course of misconduct after ample warning, or after it became apparent that continuance of such misconduct would result in injury to the defendant's guests. Manser v. Eder, 263 Mich. 107; Schlacter v. Harbin, 273 Mich. 465. We think that cannot be said of the instant case, except somewhat in the same sense it may be said that every person who operates a motor vehicle upon our public highways knowingly subjects Mmself and his guests to certain hazards. Under this record there is no testimony that defendant was guilty of gross negligence or wilful and wanton misconduct in omitting to use care and diligence to avert a threatened danger after he was chargeable with knowledge of such danger. As involving somewhat similar facts, see Van Blaircum v. Campbell, 256 Mich. 527; Grabowski v. Seyler, 261 Mich. 473.\\nJudgment entered in the circuit court is affirmed, with costs to appellee.\\nFead, Wiest, Butzel, Bushnell, Sharpe and Toy, JJ., concurred. Potter, J., did not sit.\"}"

mich/1797819.json

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+"{\"id\": \"1797819\", \"name\": \"WILSON v. CITY OF PONTIAC\", \"name_abbreviation\": \"Wilson v. City of Pontiac\", \"decision_date\": \"1940-06-04\", \"docket_number\": \"Calendar No. 41,203\", \"first_page\": \"79\", \"last_page\": \"88\", \"citations\": \"294 Mich. 79\", \"volume\": \"294\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T02:32:27.790644+00:00\", \"provenance\": \"CAP\", \"judges\": \"Bushnell, C. J., and Sharpe, Potter, Chandler, North, McAllister, and Wiest, JJ., concurred.\", \"parties\": \"WILSON v. CITY OF PONTIAC.\", \"head_matter\": \"WILSON v. CITY OF PONTIAC.\\n1. Taxation \\u2014 \\\"Scavenger Sale\\u201d \\u2014 Construction of Statutes.\\nIn interpreting act relative to \\\"scavenger\\u201d sale of lands of which the State had acquired title through previous tax sales, the court must ascertain the meaning of the statute, give it full force and effect, coloring the construction by the purpose of the act as it is remedial and entitled to a liberal construction (Act No. 155, Pub. Acts 1937, as amended).\\n2. Same \\u2014 Construction of Statutes.\\nIn interpreting aet relative to \\\"scavenger\\u201d sale of lands, the court is under a duty to draw inferences from the evident intent of the legislature, as gathered from a view of the law in its entirety, and render effectual the specific things which are included in the broad and comprehensive terms and purposes of the law (Aet No. 155, Pub. Acts 1937, as amended).\\n3. Same \\u2014 Lands Sold at \\u201cScavenger Sale\\u201d \\u2014 Immediate Bestoration to Tax Bolls.\\nProvision of scavenger aet that \\\"lands disposed of under contract or deed * * * shall be immediately subject to taxation by the several taxing units having jurisdiction,\\u201d when considered in connection with purpose of act stated in section relating to classification of such lands \\\"with the end in view of rehabilitating such lands as rapidly and speedily as possible and returning said lands to the tax rolls,\\u201d requires holding that when the bid oi; a purchaser at the sale is accepted by the State land office board the land shall be subject to taxation and that such purpose shall be effected upon notice of sale given by the board\\u2019s agent to the county treasurer who in turn is obliged to notify respective assessing officers who must place the properties upon the proper assessment rolls (Aet No.-155, \\u00a7\\u00a7 5, 7-9, Pub. Aets 1937, as amended by Aet No. 244, Pub. Aets 1939).\\n4. Costs \\u2014 Construction of Scavenger Act.\\nNo costs are allowed in mandamus proceeding to compel tax assessing officials to comply with \\\"scavenger aet,\\u201d in which question as to proper construction to be given certain provisions was presented (Act No. 155, \\u00a7\\u00a7 5, 7-9, Pub. Acts 1937, as amended by Act No. 244, Pub. Acts 1939).\\nMandamus by Charles L. Wilson, a taxpayer, against City of Pontiac, a municipal corporation, William R. Ransom, city assessor, and board of review of the City of Pontiac to compel the city to place immediately on its tax rolls all parcels of land sold under Act No. 155, Pub. Acts 1937, as amended. Attorney General intervened to oppose the petition.\\nSubmitted May 22, 1940.\\n(Calendar No. 41,203.)\\nWrit granted June 4, 1940.\\nCharles L. Wilson (Harry J. Merritt, of counsel), for plaintiff.\\nWilliam A. Ewart, for defendants.\", \"word_count\": \"4279\", \"char_count\": \"24190\", \"text\": \"Butzel, J.\\nThis is an original petition for mandamus by a taxpayer of the city of Pontiac to direct the .city of Pontiac to place on its tax rolls immediately all parcels of land sold under the \\\"scavenger\\\" act (Act No. 155, Pub. Acts 1937, as amended by Act No. 244, Pub. Acts 1939 [Comp. Laws Supp. 1940, \\u00a7 3723-1 et seq., Stat. Ann. \\u00a7 7.951 et seq.]), irrespective of whether the State land office board has executed deeds or contracts. The attorney general has intervened to oppose the petition.\\nAccording to the allegations of the petition, a \\\"scavenger\\\" sale was started in Oakland county on February 13, 1940, and certain lands were bid in in accordance with section 7 of the act (set forth in the margin). Some of the lands were bid in-by strangers to the title who deposited cash, but no deeds have yet been issued by the State land office board; other lands were bid in by \\\"owners\\\" as defined in section 5 (set forth in the margin), and arrangements were made to purchase on contract as permitted by section 7, but no contracts have yet been issued. In obedience to tbe duty imposed by section 7, repeated in section 9, tbe State land office board notified tbe treasurer of Oakland county, wbo in turn notified defendants of tbe sales of tbe properties offered at tbe scavenger sale. Plaintiff claims that tbe properties thus sold became taxable \\\"from tbe moment tbe gavel fell elos rng the sale, ' ' and that it was the duty of the assessing officer of the city of Pontiac or the hoard of review immediately to place these properties on the assessment rolls, even if the owner not be known at the time (1 Comp. Laws 1929, \\u00a73412 [Stat. Ann. \\u00a77.24]). Plaintiff claims that the refusal of defendants to place these properties on the assessment rolls creates an inequality in the distribution of the tax burden and increases the amount of taxes plaintiff will be obliged to pay for the year 1940. In defendants ' return to the order to show cause, the sale of the properties and notification thereof are admitted, but it is claimed that the properties should not he placed on the tax roll because no deeds or contracts have been issued, and that until such issuance the properties still belong to the State of Michigan and are exempt from the general tax laws as State lands (general property-tax law, 1 Comp. Laws 1929, \\u00a7 3395 [Stat. Ann. \\u00a7 7.7]), and that if these properties are illegally placed on the tax rolls and later ordered removed, the city of Pontiac will be charged back with the county and school taxes uncollected because of the unauthorized assessment.\\nThe sole question before us in the instant case is whether the lands are subject to taxation when a bid is accepted, or whether the power to tax is deferred until a deed or contract is executed to the successful purchaser. Section 7 provides:\\n\\\"No bid shall be accepted.unless payment in cash is made within 24 hours of the bid, and such bid shall remain open, for 24 hours. ' '\\nThe second paragraph of section 7 declares:\\n\\\"All such lands disposed of under contract or deed, except lands purchased and held by taxing units for public purposes, shall be immediately subject to taxation by the several taxing units having jurisdiction.\\\"\\nThe question is, when are the lands ' ' disposed of \\u00cd \\\" In interpreting the act our duty is to ascertain the meaning of the statute, to give it full force and effect, coloring our construction by the purpose of its enactment. The statute is remedial and is entitled to a liberal construction. Oakland County Treasurer v. Auditor General, 292 Mich. 58. It is said to be the duty of the court to draw inferences from the evident intent of the legislature, as gathered from a view of the law in its entirety; we must render effectual the specific things which are included in the broad and comprehensive terms and purposes of the law. At torney General v. Railway Co., 210 Mich. 227; Oakland County Treasurer v. Auditor General, supra. The part of section 7 quoted above states that the lands sold shall be \\\"immediately\\\" subject to taxation. Section 8 referring to other lands subject to the jurisdiction and control of the board states that they shall be classified \\\"with the end in view of rehabilitating such lands as rapidly and speedily as possible and returning said lands to the tax rolls.\\\" The general tenor of the act is to rehabilitate for tax purposes, with certain exceptions, lands acquired by the State \\\"by virtue of any tax sale.\\\" In keeping with the policy of the act, we think the word \\\"immediately\\\" in section 7 refers to the time when a bid may be accepted as provided in the first paragraph of section 7, and not the time when the transaction may be culminated by the execution of a deed or land contract. The rights of one who ultimately acquires the land spring from the acceptance of a bid though defeasible, for that is the occasion which determines the purchase price and starts running the time limitations for the favored purchasers. The expression \\\"disposed of under contract or deed\\\" following the phrase \\\"all such lands\\\" in the second paragraph of section 7 is only descriptive of the lands for which bids have been accepted in accordance with the preceding paragraph of this section.\\nThe charge is made by plaintiff and admitted by the defendants that, within the time prescribed, the State land office board by its agent in charge of its sale, in pursuance of section 7 of said act, as amended, reported to the county treasurer who, in turn, notified the defendants of the sales of the properties sold at the scavenger sale. Upon such notice, it became the duty of the defendants to place such properties on the assessment roll of the city of Pontiac for 1940 and subject them to taxation.\\nA writ of mandamus shall issue in accordance with this opinion. No costs.\\nBushnell, C. J., and Sharpe, Potter, Chandler, North, McAllister, and Wiest, JJ., concurred.\\nSec. 5. Any municipality may at any time prior to the sale provided for in section 7 of this act make application to the State land office board for the withholding of the lands in said application from the said sale, for a period of 1 year from the date the title vests in the State, and the said State land office board shall with hold sueh lauds from said sale, which lauds shall be held subject to the lien of the city for delinquent taxes and special assessments. In the event the taxes on said lands included in said application are not redeemed or paid by said municipality, sueh lands shall be offered for sale at the next succeeding sale held the following year as provided in section 7 of this act the same as though said application had not been made and the proceeds of sueh sale paid pro rata to sueh municipality as provided in section 10 of this aet.\\nThe term \\\"owner\\\" as used in this act shall mean the owner in fee, mortgagee, land contract vendee, or one having a substantial interest by way of actual investment in the property, priority to be given the one having the largest financial investment in the property.\\nThe term \\\"municipality\\\" as used in this aet shall mean any county, city, village, township or school district. The term \\\"taxing unit\\\" as used in this act shall include any municipality as herein defined and any other taxing unit in this State. (As amended by Aet No. 244, Pub. Acts 1939.)\\nSec. 7. In sufficient time prior to each second Tuesday of February after the vesting of title in the State of Michigan, the State land office board shall prepare lists of the descriptions of said parcels of land in each county of this State under its jurisdiction and control: Provided, That parcels of land conveyed or deeded under section 5 of this act shall be omitted from such lists. Under rules and regulations of the board, the several parcels of land appearing upon sueh lists shall be offered for sale separately at the office of the respective county treasurers to the highest bidder at said sale beginning on the second Tuesday of February of each year. Such sale may be continued from day to day until all parcels have been offered for sale: Provided, That no bid shall be accepted for a smaller sum than 25 per cent, of the assessed valuation of the parcel of land as fixed and determined at the last assessment for the year preceding the vesting of title in the State of Michigan as shown by the records of the county treasurer. The board may designate the several county treasurers to aet as agents of the board in the preparation of such lists and in the conducting of such sale, the expense of which shall be paid by said board, or may provide for the conducting of said sale by a representative of the board. Any county, township, city, village, school district or other taxing unit having any taxes or special assessments cancelled by the vesting of title in the State of Michigan may, either severally or in combination, bid at said sale for such lands as may be needed for public purposes, but not for resale, and shall have authority to make sueh bid and appropriate any money necessary therefor. Sueh taxing units may purchase, hold and dedicate said lands for any public purpose: but such taxing units shall not have authority to purchase and hold said lands for resale. No bid shall be accepted, unless payment in cash is made within 24 hours of the bid, and such bid shall remain open for 24 hours: Provided, That if any person having any interest in said lands as hereinafter in this section provided, shall within 24 hours following such bid, make application to the board or its representative, payment in cash shall not be required but said board may enter into an agreement with said owner for the payment of the sum bid as hereinafter provided. If payment in cash to take up such bid is not made within said 24 hour period, the land may be reoifered for sale. The term \\\"highest bidder\\\" as used in this section shall be construed to mean the person who makes the highest bid accompanied by payment within 24 hours following such bid. The amount which any taxing unit or units bidding at such sale shall pay in cash shall be only that part of such bid as may be necessary to pay the expenses of the sale plus the proportionate part of the taxes and assessments which were due to the taxing unit or units not bidding and cancelled at the time of vesting of title in the State of Michigan. The proportionate part of the taxes cancelled as to the taxing unit or units bidding shall be construed as cash for the balance of the bid. All payments shall be held in trust for and shall be turned over to the board. The successful bidder shall receive a certificate of purchase from the county treasurer or other agent designated by the board, in such form as shall be furnished by the board. Any person who, at the time of the tax sale, had any interest in any parcel of land so sold, shall have the right for a period of 30 days after such public sale as in this section provided, to meet the highest bid, by paying the amount thereof to the county treasurer, or he may on application to the said land office board enter into an agreement with such board for the payment of the sum required to meet such highest bid, in instalments to be paid over a period of not to exceed 10 years, with interest on unpaid instalments computed at the rate of 6 per cent, per annum from the date of said agreement, which agreement shall provide that said vendee shall forfeit his right thereunder by failure to meet such payment or failure to meet all current taxes and assessments during the life of such agreement before such taxes and assessments become delinquent, and receive, when instalments are fully paid, a quitclaim deed, executed as hereinafter provided.\\nAll such lands disposed of under contract or deed, except lands purchased and held by taxing units for publie purposes, shall be immediately subject to taxation by the several taxing units having jurisdiction, and the State land office board shall promptly report any disposition of such lands to the county treasurer of the county wherein the same are located, who in turn shall immediately report same to the proper assessing officers. If such bid is not met by the above-named parties in interest any city, village, township, county or school district having any taxes or special assessments cancelled by the' vesting of title in the State of Michigan shall have the right either severally or in combination for a period of 15 days after the expiration of the 30-day period above provided, to meet the highest bid, provided said lands are purchased for public use and not for resale. Such taxing units shall have priority in the exercise of such right according to the amounts of their respective tax interests at the time of vesting title in the State of Michigan. The amount which any taxing unit meeting such bid as above provided shall pay in cash shall be only that part of such bid as may be necessary to pay the expenses of the sale plus the proportionate part of the taxes and assessments which were due to the taxing unit or units not bidding and cancelled at the time of vesting title in the State of Michigan. The proportionate part of the taxes cancelled as to the municipality meeting the bid shall be considered as cash for the balance of the bid. If such bid is so mot as in this section provided, the certificate of purchase issued to such highest bidder shall be void except that the highest bidder shall bo entitled to a return of his money upon surrender of such certificate of purchase, and persons or taxing units so meeting said bid shall forthwith be entitled to receive a quitclaim deed, or in ease of instalment purchases, a land contract, covering the parcel of land so purchased, executed on behalf of the State of Michigan by the board, with the seal of the board attached. In the event that no such bid is met as heroin provided, the said highest bidder shall be entitled to receive a quitclaim deed or in case of instalment purchases, a land contract, covering the parcel of land so purchased, executed on behalf of the State of Michigan by the board, with the seal of the board attached.\\nAny conveyance executed by the board under any of the provisions of this act shall not affect in any way the rights of parties whose interest or interests in said property so conveyed shall have been assessed separately from the real estate, as provided in subsection 16 of section 8 of act number 206 of the public acts of 1893, as amended by act number 94 of the public acts of 1931.\\nNotice of such sale shall be published by the State land office board in such newspaper or newspapers having general circulation in the respective counties as the board shall designate, said notice to state the time and place of sale, and shall be published once each week for two successive weeks in the same newspaper or newspapers, the second insertion-to be not later than one week prior to the date of said sale.\\nIf any taxing unit having purchased any land under the provisions of this section for public purposes shall at any time decide not to use said land for a publie purpose, said land shall be deeded back to the State and shall be sold by the State land office board at the next regular sale. All quitclaim deeds to a taxing unit purchasing land under the provisions of this section for a public purpose shall contain a provision for the reverting of said land to the State when the same is no longer used for a publie purpose: Provided, however, That in any case where such property deeded under the provisions of this act shall have been used for a bona fide public purpose for a period of not less than 10 years, the reversionary clause of this section shall not apply. (As amended by Act No. 244, Pub. Acts 1939.)\\nSec. 8. All other lands under the jurisdiction and control of the board shall be classified with the end in view of rehabilitating such lands as rapidly and speedily as possible and returning said lands to the tax rolls. The State land office board shall make or cause to be made an appraisal of such lands. Said board shall keep on file in its offico and under its control all records of appraisals and all deeds or other records used in making such appraisals. The board, through its rules and regulations, shall provide for the filing of objections to the appraisals made, and for the conducting of hearings thereon. The determination of the board shall be final.\\nThe board is authorized to sell any of such lands to the best advantage, but for not less than the appraised valuation to be fixed by the board from time to time, to reliable purchasers, either at cash or on time payment plans, such time payments not to run for longer than 10 years from the date of such sale and the board shall, upon request by resolution of the governing body of the county, city, village, township or school district in which said lands are located, transfer such lands as such county, city, village, township or school district shall request, upon proof satisfactory to said board that such lands are needed for public purposes but not for resale, to such county, city, village, township or school district and give a quitclaim deed therefor covering such parcel or parcels of land, executed on behalf of the State of Michigan by the board, with the seal of the board attached. In ease of such request by any two or more such taxing units in which such lands are located, the taxing units shall have priority according to the amounts of their respective tax interests at the time of vesting title in the State of Michigan. Such county, city, village or township may hold such lands for any publie purpose but not for resale. If any taxing unit having acquired any land under the provisions of this section for public purposes shall at any time decide not to use said land for a public purpose, said land shall be deeded back to the State and shall be sold by the State land office board at the next regular sale. All quitclaim deeds to a taxing unit purchasing land under the provisions of this section for a public purpose shall contain a provision for the reverting of said land to the State when the same is no longer used for a public purpose: Pro vided, however, That in any ease where sueh property deeded under the provisions of this act shall have been used for a bona fide publie purpose for a period of not less than 10 years, the reversionary clause of this section shall not apply.\\nThe board is also authorized to provide for such use by the State of Michigan, or any political subdivision thereof, of any of sueh lands, and to make sueh other disposition thereof, as the interests of the State or local subdivisions may require. Within 30 days of the expiration of this act sueh board shall convey and turn over to the department of conservation all lands not sold by such board; and such board shall also assign and set over to the department of conservation all instruments and documents evidencing sales by the board under time payment plans and thereafter the department of conservation shall carry out and perform all undertakings and agreements in such instruments and documents stated to be performed by such board or by the State of Michigan. Upon the expiration of this act the said board shall deliver to the department of conservation all other papers, records and effects of every kind remaining in its possession. Whenever any lands or any interest in any lands are conveyed or turned over to the department of conservation by the said board, such department of conservation shall, in addition to any other powers which sueh department of conservation might have, be vested with all the powers, rights and duties vested in said State land office board by this aet.\\nSec. 9. The board shall be a body corporate, may sue and be sued, and shall adopt a seal of which all the courts of this State shall take judicial notice.\\nThe board is authorized, for and on behalf of the State of Michigan, to execute, with the seal of the board attached, sueh quitclaim deed or deeds, land contract or land contracts, leases for publie uses or other documents or papers as may be necessary to carry out the provisions of this\\u00b0aet. No power, either specific or implied, is hereby given to said board to enter into any lease or leases with any person, firm, copartnership, association or corporation to be used for any private purposes. Any quitclaim deed or deeds executed by the board shall convey title in fee to land vested in the board under the provisions of this act, free from any encumbrances, except as herein otherwise provided. It shall be the duty of the board to notify the assessing officer of the township or city where any land is located of any deeds, contracts, leases- or other disposition of any such land which would enable such land to be returned to the tax rolls for assessment of the interest conveyed thereby.\\nThe provisions of act number 91 of the publie acts of 1911, as amended, shall not apply to any land contract executed by the board or purchase money mortgage given to the board.\\nThe board may file any sueh land contract or mortgage with the register of deeds of the proper county without the payment of any fee or tax. All restrictions as to improvement and use of property contained in the dedication of any recorded plat shall pass with the deed made by the State to the purchaser unless on petition of a majority of the owners of the property within such plat. The land office board or director of conservation shall determine that such restrictions shall be set aside.\"}"

mich/1800024.json

@@ -0,0 +1 @@
+"{\"id\": \"1800024\", \"name\": \"KELLY v. SECRETARY OF STATE\", \"name_abbreviation\": \"Kelly v. Secretary of State\", \"decision_date\": \"1940-06-03\", \"docket_number\": \"Calendar No. 40,811\", \"first_page\": \"530\", \"last_page\": \"536\", \"citations\": \"293 Mich. 530\", \"volume\": \"293\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T19:05:59.302500+00:00\", \"provenance\": \"CAP\", \"judges\": \"Bushnell, C. J. and Potter, Chandler, North, McAllister, Wiest, and Butzel, JJ., concurred.\", \"parties\": \"KELLY v. SECRETARY OF STATE.\", \"head_matter\": \"KELLY v. SECRETARY OF STATE.\\n1. Officers \\u2014 Civil Service \\u2014 Unclassified Service.\\nThe civil service commission has no jurisdiction at all over the unclassified service (Act No. 346, Pub. Acts 1937, as amended by Act No. 97, Pub. Acts 1939).\\n2. Constitutional Law \\u2014 Administrative Construction of Statutes.\\nWhile a court would take notice of a construction given in the administration of doubtful or obscure laws by officers with a duty to perform thereunder, in the final analysis the construction of a statute remains in the judicial branch of the government.\\n3. Officers \\u2014 Civil Service \\u2014 Veterans\\u2019 Preference Act \\u2014 Unclassified Service.\\nThe civil service act does not repeal the veterans\\u2019 preference act insofar as the unclassified service is concerned (1 Comp. Laws 1929, \\u00a7\\u00a7 900-903, as amended by Acts Nos. 66, 67, Pub. Acts 1931; Act No. 346, Pub. Acts 1937, as amended by Act No. 97, Pub. Acts 1939).\\n4. Same \\u2014 Branch Manager Under Secretary of State \\u2014 Holding Over \\u2014 Veterans\\u2019 Preference Act.\\nWar veteran who held over position as branch manager under secretary of State after it was removed from classified service by amendment of the civil service act but was not appointed by then incumbent secretary of State was not, by such holding over, reappointed so as to be within the protection of the veterans\\u2019 preference act (1 Comp. Laws 1929, \\u00a7\\u00a7 900-903, as amended by Acts Nos. 66, 67, Pub. Acts 1931; \\u00a73280).\\n5. Same \\u2014 Holding Over.\\nIn the absence of a contrary binding regulation, an officer may continue after the expiration of his term to exercise the duties of his position until his successor is selected and qualified, but the right to position by an appointee expires by operation of law with the term of office of the appointing officer (1 Comp. Laws 1929, \\u00a7 3280).\\n6. Mandamus \\u2014 Reinstatement to Office \\u2014 Costs\\u2014Public Question.\\nNo costs are allowed upon denial of mandamus for reinstatement to war veteran who held over office of branch manager after position, was removed to unclassified service, and who was not reappointed by then incumbent superior, a public question being involved (1 Comp. Laws 1929, \\u00a7\\u00a7 900-903, as amended by Acts Nos. 66, 67, Pub. Acts 1931; Act No. 346, Pub. Acts 1937, as amended by Act No. 97, Pub. Acts 1939).\\nPetition by William J. Kelly for a writ of mandamus to compel Harry F. Kelly, Secretary of State, to reinstate petitioner as branch manager of the Bay County branch office of the Secretary of State.\\nSubmitted April 23, 1940.\\n(Calendar No. 40,811.)\\nWrit denied June 3, 1940.\\nRehearing denied September 6, 1940.\\nJoseph V. Cowmans, for plaintiff.\\nThomas Read, Attorney General, and Edmund E. Shepherd and Kenneth G. Prettie, Assistants Attorney General, for the defendant.\", \"word_count\": \"1905\", \"char_count\": \"11283\", \"text\": \"Sharpe, J.\\nThis is a petition for a writ of mandamus to compel defendant, secretary of State, to reinstate plaintiff as branch manager of the Bay county office of the secretary of State.\\nThe facts are not in dispute. Plaintiff, an honorably discharged war veteran, was appointed to the position of branch manager of the Bay county office of the secretary of State on January 1, 1937, by a former secretary of State and continued in the office until July 1, 1939, when a summary notice of dismissal took effect. On July 11, 1939, plaintiff filed his protest and application for a hearing under the veterans' preference act (1 Comp. Laws 1929, \\u00a7 901, as amended by Act No. 67, Pub. Acts 1931 [Comp. Laws Supp. 1935, \\u00a7 901, Stat. Ann. \\u00a74.1222]) with the governor of Michigan, but was denied a hearing upon the theory that the civil service law (Act No. 346, Pub. Acts 1937, as amended by Act No. 97, Pub. Acts 1939 [Comp. Laws Supp. 1940, \\u00a7 402-1 et seq.]) had repealed the veterans' preference act. At the time of his dismissal, plaintiff's position was in the unclassified service of the State by virtue of Act No. 97, Pub. Acts 1939, effective May 15,1939. Plaintiff remained in the unclassified service of the State until his discharge July 1, 1939, a period of 45 days.\\nPlaintiff contends that the amendatory civil service act effective May 15, 1939, specifically excludes the unclassified service from the operation of the act and does not repeal sections of veterans' preference act insofar as \\\"unclassified veterans\\\" are concerned; that plaintiff's employment from May 15, 1939, to July 1, 1939, was employment within the terms of the veterans' preference act; and that plaintiff is entitled to compensation at the rate of $1,800 per year from the date of dismissal to the date of reinstatement.\\nThe veterans' preference act (1 Comp. Laws 1929, \\u00a7 900-903, as amended by Acts Nos. 66, 67, Pub. Acts 1931) provides that no veteran shall be discharged from an office or employment in any public department except after a full hearing before the governor of the State. The civil service act (Act No. 346, Pub. Acts 1937, as amended by Act No. 97, Pub. Acts 1939) provides:\\n\\\"Sec. 28. All acts or parts of acts which are inconsistent with the provisions of this act are hereby repealed. Act number two hundred five of the public acts of eighteen hundred ninety-seven, as amended, being sections nine hundred to nine hundred three, inclusive, of the compiled laws of nineteen hundred twenty-nine (veterans' act), is hereby repealed only insofar as inconsistent with the provisions of this act.\\\"\\nThe civil service act attempts to retain all of the parts of the veterans ' preference act which can be retained consistently with the civil service act. The first six sections of the civil service act deal with the purpose of the act and with the setting up of the civil service commission. These sections are not in conflict with the veterans' preference act. The seventh section defines classified and unclassified services. Sections eight to seventeen inclusive deal with rules governing those in classified services, i. e., examinations and ratings, and rules as to suspension, lay-offs, transfers and others. In each instance, the section is specifically made to apply to classified service. Section 18 provides for regulation of hours of service, vacations and sick leaves, while section 19 provides for the making of service ratings by the director. The provisions of the act which affect the hiring and discharging of officers and employees pertain entirely to the classified services.\\nThe case of Sullivan v. State Board of Tax Administration, 290 Mich. 664, 671, dealt with the discharge of a veteran in the classified service. In speaking of the unclassified service, we there said, \\\"The civil service commission now has no jurisdiction at all over the unclassified service. ' ' The terms of the civil service act apply to the classified service.\\nIt is urged by defendant that it has been the practice of three governors of the State of Michigan to deny hearings under veterans' preference act upon the theory that in their opinion that act has been repealed by the civil service act. We have great respect for the opinion of all of our governors and will take notice of a construction given in the administration of doubtful or obscure laws by officers with a duty to perform thereunder, but in the final analysis the construction of a statute still remains in the judicial branch of our government. In our opinion, the civil service act does not repeal the veterans' preference act insofar as unclassified service is concerned.\\nIt is urged by the defendant that plaintiff's term of service expired May 15, 1939, and that he was never appointed or employed by the defendant. The record before us shows that when plaintiff was first appointed to his position, the civil service law was not in effect; that plaintiff did not pass his qualifying examination until June 26,1938; that Act No. 97, Pub. Acts 1939, became effective May 15, 1939; that the classified position plaintiff formerly held became an unclassified one' by virtue of the above act; and that from May 15 to July 1, 1939, plaintiff was in the employ of the State, but without appointment from the defendant.\\nPlaintiff contends that the case at bar is controlled by LeMont v. Van Wagoner, 267 Mich. 663. In that case, plaintiff, a war veteran, filed a petition for reinstatement as rodman in the highway department. Plaintiff had been in the employ of the department for a period of five years and in May, 1933, was notified that beginning' July 1, 1933 (the date the new commissioner took office), he would be employed on a day-to-day basis. He was discharged August 10th. We there said:\\n\\\"Plaintiff was employed by the present commissioner, although on a day-to-day basis. The statute makes no distinction as to the length of term or character of employment. Having been employed under the present commissioner, plaintiff's discharge was in violation of the statute and he is entitled to reinstatement.\\\"\\nThe opinion in the above case has for its basis the fact that plaintiff had been hired by the present commissioner. In the case at bar, it is stipulated that \\\"plaintiff was not rehired by defendant after May 15,1939.\\\" The above case has no application and is not controlling of the facts involved in the present controversy, nor does the holding over for a period of 45 days constitute a reappointment by the defendant which would give plaintiff the protection of the veterans' preference act.\\nSection 3280, 1 Comp. Laws 1929 (Stat. Ann. \\u00a7 6.593), states:\\n\\\"The person holding any office shall continue to hold the same, after the expiration of the term thereof, until his successor shall be elected or appointed and qualified.\\\"\\nIn Opinion of the Justices, 275 Mass. 575 (175 N. E. 644), it is said:\\n\\\"It is a general principle of expediency in the absence of any binding regulation that an officer may continue after the expiration of his term to exercise the duties of his position until his successor is selected and qualified. This is simply a holding over for convenience and confers no right for any defined period. * # * It prevents interruption in the performance of the public business. It commonly is in the interests of the general welfare.\\\"\\nDefendant contends that plaintiff's term of employment expired May 15, 1939, and that had it not been for the provisions of the civil service act, plaintiff's employment would have ceased on December 31, 1938, concurrently with the end of the term of office of the appointing authority.\\nIn Lockwood v. Stoll, 264 Mich. 598, we said:\\n\\\"The appointment or employment of plaintiffs by Otto Stoll did not extend beyond his term. Their right to their positions expired simultaneously with the expiration of his term. Trainor v. Board of Wayne County Auditors, 89 Mich. 162 (15 L. R. A. 95); In re Tiffany, 179 N. Y. 455 (72 N. E. 512); Banner v. McMurray, 12 N. C. 218; Egan v. City of St. Paul, 57 Minn. 1 (58 N. W. 267).\\\"\\nSee, also, Abt v. Wilcox, 264 Mich. 183.\\nFrom the above authority it is clear that the veterans ' act does not apply to veterans who have served beyond the term to which they were appointed. In the case at bar, plaintiff's term of office expired May 15,1939, by operation of law. He was not reappointed by the present secretary of State.\\nThe petition is denied, but without costs, a public question being involved.\\nBushnell, C. J. and Potter, Chandler, North, McAllister, Wiest, and Butzel, JJ., concurred.\"}"

mich/1819795.json

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+"{\"id\": \"1819795\", \"name\": \"LEWIS v. TRINKLEIN. In re DISSOLUTION OF AIR-O-CEL INDUSTRIES, INC.\", \"name_abbreviation\": \"Lewis v. Trinklein\", \"decision_date\": \"1943-04-06\", \"docket_number\": \"Docket No. 70, Calendar No. 42,101\", \"first_page\": \"542\", \"last_page\": \"557\", \"citations\": \"304 Mich. 542\", \"volume\": \"304\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T18:36:29.340584+00:00\", \"provenance\": \"CAP\", \"judges\": \"North, Btjtzel, and Sharpe, JJ., concurred with Boyles, C. J.\", \"parties\": \"LEWIS v. TRINKLEIN. In re DISSOLUTION OF AIR-O-CEL INDUSTRIES, INC.\", \"head_matter\": \"LEWIS v. TRINKLEIN. In re DISSOLUTION OF AIR-O-CEL INDUSTRIES, INC.\\nTrade Marks and Trade Names \\u2014 Injunction\\u2014Equally Divided Court.\\nDecree iii favor of purchaser from corporation\\u2019s receiver of advertising equipment, patents and registered trade marks enjoining use of registered trade name by defendant, former president of the corporation, and a new corporation, owned by him individually, is affirmed by an equally divided court.\\nAppeal from Wayne; Mnrphy (George B.), J.\\nSubmitted October 20, 1942.\\n(Docket No. 70, Calendar No. 42,101.)\\nDecided April 6, 1943.\\nRehearing denied June 7, 1943.\\nPetition by Arthur G. Lewis against Edwin J. Trinklein and Air-O-Cel Products Company, a Michigan corporation, for order to show cause why defendants should not desist from using a trade name and why defendant corporation should not be required to change its name. Prom an order of circuit court granting such petition, defendants appeal.\\nAffirmed by equally divided court.\\nJohn McNeil Burns (Dale H. Fillmore, of counsel), for plaintiff.\\nLeivis A. Stoneman (Herbert J. Pevos, of counsel), for defendants.\", \"word_count\": \"4573\", \"char_count\": \"26643\", \"text\": \"Boyles, C. J.\\nThe question for decision is whether the appellee (Arthur G. Lewis) has the exclusive right to use the registered trade mark name \\\"Aif-O-Cel\\\" as against the defendant Edwin J. Trinklein and his individually-owned corporation.\\nIn 1928 Trinklein and associates incorporated Air-O-Oel Industries, Inc., to engage in the business of selling and installing certain insulating material under the registered\\\" trade name \\\" Air-O-Cel.\\\" Trinklein was president, director, and, with his brother, a majority stockholder in the corporation. The corporation met with business difficulties and on October 7, 1941, Trinklein, with the other directors, filed a petition in Wayne county circuit court for voluntary dissolution of the corporation. On filing the petition, Trinklein was appointed temporary receiver, with authority'to take possession of the assets and continue the business. About two weeks later, on petition of intervening creditors, an order was entered by the court removing Trinklein as temporary receiver and appointing one Walter G. 'Wiseman in his stead with similar authority. On November 28, 1941, an order was entered dissolving the corporation, appointing Wiseman permanent receiver and directing him to.liquidate the business as a going concern. On January 24, 1942, the court entered an order directing the receiver to discontinue the business and to liquidate the assets, which the- receiver proceeded to do. A public sale of the assets was held by the receiver on February 11, 1942. The assets were first offered in bulk, then offered in 42 separate parcels. The bids by parcels being larger, two days later (February 13th) the receiver filed a report of sale, recommending that the sale by parcels be confirmed, and on the same day the court entered an order confirming the sale by parcels.\\nPlaintiff Lewis was the high bidder for the following parcel:\\n\\\"Advertising Equipment and Good Will\\n\\\"3 large neon signs in whse. '\\n\\\"3 large neon signs bn jobs\\n' ' 1 small convention neon sign\\n\\\"1 builders show advertising panel. Samples, advertising and vapormeters\\n\\\"Patents and Trade Marks.\\n\\\"1 thermos bottle trade mark #281-080 U. S.\\n\\\"1 trade mark Air-O-Cell #269206 U. S.\\n\\\"1U. S. #2098554\\n\\\"1 U. S. #1924515\\n' ' 1 Canadian patent #311466 ' '\\nIn the subsequent proceedings plaintiff showed that the auctioneer at the sale offered and sold this parcel \\\"together with advertising material, stationery, unfilled orders and the rights to the telephone number of Air-O-Cel Industries, Inc./\\nLewis'paid the receiver for this property. Trinklein had been the unsuccessful (next to highest) bidder for this parcel.\\nThe sale was held on February 11th, confirmed on February 13th. On the latter date Trinklein filed with the State corporation and securities' commission and with the county clerk of Wayne county an amendment to the articles of an inactive real estate corporation, \\\"Liddesdale Holding Company/' of which Trinklein was sole owner, changing its name to \\\"Air-O-Cel Products Company.\\\" When Lewis attempted to file with the county clerk of Wayne county a certificate of doing business using the name \\\"Air-O-Cel,\\\" it was refused on the ground that Trinklein had already filed the same name in the amendment to his articles of incorporation.\\nOn March 9th, Lewis filed a sworn petition with the court in the pending receivership proceeding, reciting the foregoing facts, alleging that he had been deprived of the rights purchased by him from the receiver and asking for an order requiring Trinklein and the corporate defendant herein to show cause why they should not be restrained from using the name \\\"Air-O-Cel.\\\" On March 23d, Trinklein and the other defendant filed a sworn answer denying that plaintiff herein had the right to the name, together with a motion to dismiss plaintiff's petition, which motion was denied. Lewis filed several affidavits; including those of Wiseman, the receiver; Laufenberg, a former employee of Air-O-Cel Industries, Inc.; Beinke, a former director of Air-OCel Industries, Inc., who had originated and patented the product and registered the trade name-\\\"Air-O-Cel;\\\" all of which fully substantiated the allegations in plaintiff's petition. Trinklein filed an affidavit in opposition. No testimony was taken. On April 27,1942, the circuit judge entered an order in the proceedings, stating that the matter had been heard on the sworn petition and answer, the affidavits in support thereof, and the undisputed statements of counsel made at the hearing, finding that the name \\\"Air-O-Cel,\\\" together with the advertising signs, patents and registered trade marks purchased from the receiver by Lewis were of distinct value, that the completion of the sale and transfer of assets of the receivership had been interfered with, and that the assets sold to Lewi\\u00a7 were thus rendered worthless by the acts of Trinklein. This was held to be an unlawful interference with the orders of the court in carrying out the receivership and liquidation. The court ordered the, defendants to refrain from using the name \\\"Air-O-Cel.\\\" From this order, defendants appeal.\\nThe contest thus squares away as to who has the right to use the name \\\"Air-O-Cel,\\\" as between Lewis and the defendants. That it has a definite valu\\u00e9 as a trade name is beyond doubt. In 1939, in suits started and brought to a successful conclusion by Trinklein, others had been enjoined from using Trinklein's registered trade name \\\"Air-O-Cel.\\\" Trinklein had filed sworn bills of complaint stating that he had spent large sums of money in advertising and bringing the name \\\"Air-O-Cel\\\" before the public as a trade name, that it had become synonymous with the term insulation, had acquired a high reputation with the public, and had considerable value.\\n\\\"We find no merit in defendants' claim that Lewis was not properly a party before the court, and that the court did not have jurisdiction to hear the matter and enter the order. The subject matter was before the court in the receivership proceedings. Trinklein was actually a party before the court by filing the original petition for dissolution and appointment of a receiver. Defendant Liddesdale Holding Company, noW known as Air-O-Cel Products Company, a corporation wholly owned by Trinklein, was' brought before the court in the order to show cause. Lewis became a party to the proceeding when he became a successful bidder, contracted to purchase a part of the assets from the receiver, the sale being confirmed and Lewis having paid the receiver for the same. 1 Clark on Receivers (2d Ed.), \\u00a7 489 (a), p. 669, states that a bidder and purchaser at receiver's sale \\\"becomes a party to the cause from the time he enters into a contract of purchase,\\\" citing Rice v. Ahlman (1912), 70 Wash. 12 (126 Pac. 66). In the latter case, the court said:\\n\\\"A second contention is that no process was served upon Beck making him a party to the action, and that the court could not acquire jurisdiction over him by the service of the show cause order. The show cause order was not issued nor required to subject Beck to the jurisdiction of the court. He became a party and subjected himself to the jurisdiction of the court when he became a purchaser at the receiver's sale. This was a judicial sale made under direct order from the court. The jurisdiction of the court over purchasers at a judicial sale is well' settled. From the time he enters into a contract of purchase at a judicial sale, the purchaser becomes a party to the action by voluntarily submitting himself to the jurisdiction of the court, and he may be compelled to comply with his bid by rule in the original case, ' '. citing a large number of cases.\\nIn 53 C. J. p. 221, as to the jurisdiction over the purchaser, we find the following language:\\n\\\"By virtue of being a party to the receiver's sale, a purchaser submits himself to the jurisdiction of the court under whose order the sale is made.\\\"\\nDefendants - claim that the court could not enter the order appealed from, based on the sworn petition and sworn answer and affidavits, without supporting testimony. There is no merit to this claim. Counsel could have requested the taking of proofs or the court could have ordered testimony, within its discretion. 3 Comp. Laws 1929, \\u00a7 14259 (Stat. Ann. \\u00a727.988). See, also, Clabaugh v. Wayne Circuit Judge, 228 Mich. 207. This is a petition in a dissolution and receivership matter. Sworn pleadings may have the force of evidence on hearing of motions and petitions. Court Rule No. 23, \\u00a7 7 (1933).\\nThe gist of appellants' claim seems to be that the court could not restrain Trinklein's wholly-owned corporation, Air-O-Cel Products Company, from using the trade name \\\"Air-O-Cel\\\" as a part of its corporate name. However, the case before us is more than merely a matter of compelling a corporation to refrain from using a name. It was not merely a corporate name, or the good will of an already dissolved corporation, that was sold to Lewis by tbe receiver. The right to the use of a registered trade name was sold along with tangible personal property. Upon dissolution of the corporation, its assets were transferred to the receiver. A receiver may take all appropriate steps in law or equity to protect such property. Pontiac Trust Co. v. Newell, 266 Mich. 490. The case before us is entirely distinguished by its facts from Grand Rapids Trust Co. v. Haney School Furniture Co., 221 Mich. 487 (27 A. L. R. 1020), relied upon by defendants. In that case the corporate charter had expired by limitation in 1919. There had been no reorganization under the statute, the corporation continued as a body corporate for three years only for the purpose of suits, closing its affairs, disposing of its property. The corporate name did not survive. Three years later (1922) a receiver for the corporation filed a bill to restrain another from using the corporate name and was denied the relief. The bill showed no exclusive products to which the corporate name had attached a trade meaning. Later use of the name did not interfere with the use of anything the receiver could sell and pass to others. The protection of a registered trade mark-was not involved (as in the case at bar) and the decision expressly states that the protection of a trade name extends to the party entitled to use it. A trade name may or may not be identical with the name of a corporation or business.\\nIn the case before us, something more than good will of a dissolved corporation is at stake\\u2014the use of a registered trade name. Even good will may be transferred, under exceptional circumstances, with a trade name.\\n\\\"Aside from exceptional circumstances as, for example, trade marks and trade names, Tennant v. Dunlop, 97 Va. 234 (33 S. E. 620), the rule, as stated in 28 C. J. p. 731, cited by plaintiff, is:\\n\\\" 'Good will exists as property merely as an incident to other property rights and is not susceptible of being owned and disposed of separately and apart from the property right to which it is incident. Good will may be attached to the particular place where the business is conducted; it is not, however, necessarily dependent upon locality, and it may adhere to some other principal thing, such as the reputation acquired by an established business, the tangible assets of a trade, the right to use. a particular name, trade mark, or valuable trade secret.' \\\" Maitland v. Blutslvy, 281 Mich. 669, 673.\\nThis case involves not merely the good will of a dissolved corporation and the use of a registered trade name but also the transferability of the right to use that trade name. The purpose and value of a trade name lies in the fact that it designates something to the public. In Detroit Creamery Co. v. Velvet Brand Ice Cream Co. (syllabus), 187 Mich. 312, this court held:\\n\\\"Where the trade name or mark 'Velvet Brand' had been connected by long association with the business of a firm, a license made by one of the partners after the partnership had sold its business which would tend to deceive the -public or operate as a fraud on persons accustomed to deal .with'the manufacturers was void; a trade mark being required to indicate the ownership and origin of the goods.\\\"\\nThe essential point is, that when a name becomes so familiar to the public that it attains economic value, or becomes known as a trade name, those facts exist because the public has come to' attach some- significance to the name and has come to rely upon something designated by the \\u00f1am\\u00e9. If that something is reliability, courtesy in dealing with customers, good credit, or other attributes intimately bound up with a certain business organization as such, then for a valid transfer of the name it may be necessary that the entire business be trans7 ferred along with it, or at least that enough be transferred to reasonably warrant a finding that the attributes attached to that name by the public have been transferred with it. But when there are exclusive products to which the name has attached a trade meaning, and when the trade or public attaches thereto certain scientific attributes, then to avoid confusion or fraud on the public it should be possible to transfer the name along with the rights to produce those same scientific attributes.\\nThe property sold to plaintiff Lewis had a distinct value aside from the-value of the neon signs, advertising panels, samples and other tangible personal property. The registered trade mark \\\" Air-OCel\\\" and the United States and Canadian patents sold along with tangible personal property have a value to one intending to continue the business under the trade name. The trade mark, neon signs and other personal property sold to Lewis had a direct connection with the manufacture and sale of the patented article \\\"Air-O-Cel.\\\" The neon signs, samples, advertising matter and other personal property obviously connected with the manufacture and sale of the articles had little, if any, value except for use in connection with the article itself. There is evidence in this case indicating that the patents transferred to plaintiff were patents pertaining to the preparation of the products which had come to be known as \\\"Air-O-Cel\\\" products, and there is'no showing1 that any of the assets of the business which were transferred to other persons were essential to the preparation of those identical products. The other items included in the same paicel with the patents, as well as defendant's haste to have the name acquired by his other corporation immediately after his bid failed, clearly indicate that there was an intent to transfer the right to use the name \\\"Air-O-Cel\\\" along with the other items sold in the parcel.\\n' In the present case, Lewis also purchased United States patents 2098554 and 1924515 and Canadian patent 311466. Defendants' brief admits that the trademark registration of \\\"Air-O-Cel\\\" is as follows :\\n\\\"Pocket forming elements of pasteboard or other fibrous material for lining and insulating building -walls.\\\"\\nThis pocket-forming feature is described as \\\"air cells \\\" or \\\" air pockets. ' ' It was shown that the name \\\"Air-O-Cel\\\" was not descriptive of the insulating board itself but refers to air pockets between the wall and board. The insulation- is provided by these air pockets rather than by the corrugation in the board itself. It was shown that Mr. Reinke, who originated this new method for making and applying insulation material for which he had received the patents hereinbefore stated, also at the same time originated the name \\\"Air-O-Cel\\\" for which he received the certificate of registration. Both letters patent and trade mark were assigned to the Air-O-Cel Industries, Inc. It is a reasonable inference from these facts that the trade mark \\\"Air-O-Cel\\\" was used in the manufacture as set out in the letters patent. The name \\\"Air-O-Cel\\\" had special meaning in the insulation trade. The air pocket insulation distinguished it from the ordinary type of corrugated boxboard.\\nIn Julian v. Hoosier Drill Co., 78 Ind. 408, 415,-the court said:\\n\\\"This assignment and transfer (of a patent) carried with it to the assignee the exclusive right to manufacture and sell the grain drill specified in the letters patent. It was a transfer to appellant of the right to carry on the (business in which Joseph Ingels had been engaged, and in connection with which he had used said trade mark. It was enough if the right to engage in the business was assigned; as incident to the assignment of this right, it was quite competent to assign the right to the trade mark.\\\"\\nThe above case (syllabi) further holds:\\n\\\"Property in the use of a word as a trade mark, to designate manufactured goods, such as the word 'Hoosier,' to distinguish a grain drill, may be acquired by adoption and exclusive use, and, when acquired, the unauthorized use by another of the mark, to designate similar goods, is a wrong which may be compensated by damages, and prevented by injunction.\\n\\\"A trade mark, used to designate goods manufactured under letters-patent, is assignable with the letters-patent, and the right to damages accrued for infringement is also assignable.\\\"\\nTo- the same effect, it has been further held that the right to the exclusive use of a word or symbol as a trade mark is inseparable from the right to make and sell the commodity which it has been appropriated to designate. Atlantic Milling Co. v. Robinson, 20 Fed. 217 (appeal dismissed, Rowland v. Atlantic Milling Co. [1889], 136 U. S. 648 [10 Sup. Ct. 1073, 34 L. Ed. 549]).\\nA trade mark is not copyrighted or patented, but is merely registered in the United States patent office. The right of property in a trade mark is a common-law right, merely recognized and preserved by the trade mark act of congress. La Croix v. May (1883), 15 Fed. 236.\\n\\\"The right to a trade mark exists independently of statute.\\\" Phillips v. Hudnut (1920) (syllabus), 49 App. D. C. 247 (263 Fed. 643).\\n\\\"That nothing in this 'act shall prevent, lessen, impeach, or avoid any remedy at law or in equity which any party aggrieved by any wrongful use of any trade mark might have had if the provisions of this act had not been passed.\\\" 33 Stat. at L. 730 (see 15 USCA, \\u00a7 103).\\n\\\"A trade mark has come to be recognized as a property right of immense and incalculable value, whose proprietor is entitled to the strongest protection at the hands of the proper court.\\\" A. Bourjois & Co. v. Katzel (syllabus), 274 Fed. 856.\\n\\\"One who has appropriated a trade mark, to distinguish his goods from other similar goods, has a property right in it, a right 'that will be protected by injunction against the infringing party.\\\" Liggett & Myers Tobacco Co. v. Sam. Reid Tobacco Co., 104 Mo. 53, 60 (15 S. W. 843, 844, 24 Am. St. Rep. 313).\\nThe order restraining defendants from using the name \\\"Air-O-Cel\\\" and from interfering with plaintiff's use thereof is affirmed, with costs to plaintiff.\\nNorth, Btjtzel, and Sharpe, JJ., concurred with Boyles, C. J.\\nSee 3 Comp. Laws 1915, \\u00a7 11335; Act No. 84, pt. 1, chap. 4, \\u00a7 6, Pub. Acts 1921 (Comp. Laws Supp. 1922, \\u00a7 9053 [32]).\\u2014Reporter.\\nAct of February 20, 1905, chap. 592; 33 Stat. at L. 724 et seq. (15 USCA, \\u00a7 81 et seq.)\\u2014Reporter.\"}"

mich/1823390.json

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+"{\"id\": \"1823390\", \"name\": \"McKEIGHAN v. CITIZENS COMMERCIAL & SAVINGS BANK OF FLINT\", \"name_abbreviation\": \"Mckeighan v. Citizens Commercial & Savings Bank\", \"decision_date\": \"1942-09-08\", \"docket_number\": \"Docket No. 13, Calendar No. 41,606\", \"first_page\": \"666\", \"last_page\": \"672\", \"citations\": \"302 Mich. 666\", \"volume\": \"302\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T02:32:29.479993+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chandler, C. J., and Boyles, North, Starr, Butzel, and Bushnell, JJ., concurred. Wiest, J., did not sit.\", \"parties\": \"McKEIGHAN v. CITIZENS COMMERCIAL & SAVINGS BANK OF FLINT.\", \"head_matter\": \"McKEIGHAN v. CITIZENS COMMERCIAL & SAVINGS BANK OF FLINT.\\n1. Mortgages \\u2014 Setting Aside Deeds \\u2014 Verdicts and Bindings\\u2014 Evidence.\\nIn suit to declare a deed a mortgage and to set aside deed from alleged mortgagee to a third party, evidence supported finding of trial court that defendant purchasers from such third party were not bona fide purchasers nor holders of a mortgagees\\u2019 interest.\\n2. Same \\u2014 Title\\u2014Liens.\\nA real-estate mortgage does not transfer title of the land to the mortgagee, but rather the mortgagee has a lien on the land to secure the debt.\\n3. Same \\u2014 Deed Absolute in Eorm.\\nA deed though absolute in form may be shown to be a mortgage.\\n4. Deeds \\u2014 Continued Possession by Grantor After Recording.\\nContinued possession by a grantor of land long after deed to another is recorded is sufficient to raise a presumption that he has retained some right in the land.\\n5. Mortgages \\u2014 Transfer of Notes.\\nThe right to a mortgage given to secure a note passes by transfer of the note.\\n6. Same \\u2014 Transfer of Mortgage Without Transfer of Note.\\nThe giving of a quitclaim deed by holder of mortgagee interest without assignment of the note secured by mortgage, in form a deed, was a nullity and conveyed no interest to the transferee binding upon the holders of the mortgagor interest.\\n7. Equity \\u2014 Clean Hands \\u2014 Eraud\\u2014Creditors.\\nEact that title to property was taken in the name of one person to avoid creditors of beneficial owner would not entitle defendants in suit to have deed declared a mortgage and to set aside deed given by mortgagee to deny relief on ground that plaintiff did not come into equity with clean hands where it does not appear that defendants were ever creditors of such beneficial owner.\\n8. Same \\u2014 Clean Hands \\u2014 Direct Eelation oe Misconduct to Transaction Involved.\\nMisconduct which will move a eourt of equity to deny relief must bear a more or less direet relation to the transaction concerning which complaint is made as relief is not denied under the \\u201cclean hands\\u201d doetrine because of the general morals, character or conduct of the party seeking relief.\\nAppeal from Genesee; Elliott (Philip), J.\\nSubmitted June 2, 1942.\\n(Docket No. 13, Calendar No. 41,606.)\\nDecided September 8, 1942.\\nBill by John J. McKeighan and wife against Citizens Commercial & Savings Bank of Flint, Michigan, Elizabeth C. Stockton, Hallie Short, Freda Short, Leopold L. Pearson, Genesee County Treasurer, and Vernon J. Brown, Auditor General, Fred M. Greenstreet, and John A. Mustard, constituting the State Land Office Board, to have a deed declared a mortgage and for other relief. William H. McKeighan added as party plaintiff. Cross bill by defendants Short against plaintiffs McKeighan to be declared owners in fee of property, for an accounting and other relief. Decree for plaintiffs. Defendants Short appeal.\\nAffirmed.\\nWalter C. Jones and Maurine L. Jones, for plaintiff.\\nJoseph & Joseph, for defendants.\", \"word_count\": \"1976\", \"char_count\": \"11246\", \"text\": \"Sharpe, J.\\nThis is a suit to declare a deed executed by John J. McKeighan and wife to the Citizens Commercial & Savings Bank of Flint a mortgage and to set aside a deed of the same property from the bank to Elizabeth Stockton.\\nPrior to 1926, William McKeighan had purchased 40 acres of land in the city of Flint for $20,000 and had given a mortgage to the vendor for part of the purchase price. In 1926, the mortgage was being foreclosed and at that time the balance due upon the mortgage was approximately $10,000. On April 6, 1936, John J. McKeighan, brother of William McKeighan, and Thomas Stockton borrowed money to pay off the mortgage from the Citizens Commercial & Savings Bank of Flint and executed a note to the bank. A deed to the property was given to John J. McKeighan and wife who then deeded it to the bank as security for the loan.\\nAfter the deed was given to the bank, payments were made to it on the note which was reduced to the sum of $4,600. Thomas Stockton died and on August 7, 1937, Mrs. Stockton paid the bank the balance due on the note out of the proceeds of an insurance policy which had been pledged to the bank to secure the loan. In October, 1938, the bank quit-claimed the property to Mrs. Stockton and also assigned the note to her. On November 2, 1939, Mrs. Stockton executed a quitclaim deed of the property to defendants ITallie and Freda Short in consideration of the sum of $500. The property was sold for unpaid taxes in May, 1938, and bid in by the State. The State's title became absolute on November 3, 1939, and the property was included in the lists of land to be offered for sale by the State land office board on February 13, 1940.\\nPlaintiffs John J. McKeighan, Alice McKeighan, his wife, and William McKeighan filed a bill of complaint in the circuit court of Genesee county to restrain the State land office board from issuing a certificate of purchase to any one other than the plaintiffs ; they asked that the deed given to the bank be declared a mortgage; that the deed from the bank to Mrs. Stockton be set aside; and that plaintiffs be declared the proper parties to purchase at the so-called scavenger sale to be held February 13, 1940.\\nDefendants Short filed an answer and cross bill in which they asked to be decreed the owners of the property subject to all unpaid taxes; or that an accounting be had and the mortgage foreclosed for the balance that might be found due on the same.\\nThe cause came on for trial and the court decreed that John J. McKeighan is the owner of the premises ; that he holds the lands as trustee for William McKeighan; that William McKeighan is the proper party to bid or meet the highest bid at the scavenger sale; that upon payment of $500 by plaintiff to defendants Short, they shall execute a deed of the premises to plaintiff John J. McKeighan.\\nDefendants Hallie and Freda Short are the only appealing parties. They claim that they are bona fide purchasers of the property; that at least, they hold a mortgagees' interest in the property; and that plaintiffs do not come into equity with clean hands.\\nOn the question of appellants being bona fide purchasers, the trial court made the following finding of facts:\\n\\\"On November 2, 1939, Hallie Short paid to Mrs. Stockton $500 and received from her a quitclaim deed. His purpose in making this purchase was to come within the term 'owner' above described, and thus be the one who could meet the highest bid within 30 days after the public sale, as above provided. At the time he made the purchase he heard from those who were living on the property that the McKeighans still owned it, or had an interest in it. He knew that John McKeighan had platted the property and recorded the plat after the warranty deed from John J. McKeighan and wife to the Citizens Commercial & Savings Bank was executed. He knew enough to pnt him on his guard that the warranty deed of John J. McKeighan and wife to the Citizens Commercial & Savings Bank was for security only, or in other words was in reality a mortgage, though in form a warranty deed. He testified, 'I was buying what the record showed, irrespective of what I had learned. ' And he testified that he believed he had a 'nuisance' value.\\n\\\"There was some evidence that an agent of Hallie Short went to those living on the plat and who had purchased from the McKeighans, and told them that they would have to pay $1,200 cash to save their property. ' '\\nThe record supports the finding of the trial court that defendants Short were not bona fide purchasers of the property, nor do we think they hold a mortgagees' interest in the property.\\nThe rule is well-settled that a real-estate mortgage does not transfer title of the land to the mortgagee, but rather the mortgagee has a lien on the land to secure the debt. In Wells v. Park, 233 Mich. 277, we said: \\\"It is well-settled that a deed though absolute in form may be shown to be a mortgage by oral proof.\\\" In the case at bar, the deed from McKeighan to the bank was in effect a mortgage. All interested parties treated it as a mortgage. The McKeighans made payments on the loan from the bank, platted the property, sold some pieces on contract, paid some taxes assessed against the property, exercised control over it and in all ways considered themselves the owners subject to the indebtedness owing to the bank. In Stevens v. Hulin, 53 Mich. 93, we held that continued possession of the grantor long after the recording of his deed to another is sufficient to raise a presumption that he has retained some right in the land. In the instant ease the only interest that the bank could convey to Mrs. Stockton was its mortgagee's in terest, but Mrs. Stockton did not assign tbe McKeighan note to defendants Short when she gave them a quitclaim deed of tbe property. It is clear that she bad no intention of parting with tbe debt which was owing her by McKeigban.\\nIn Atwood v. Schlee, 269 Mich. 322, we said:\\n\\\"It is elementary law that tbe right to' a mortgage, given to secure a note, passes by transfer of the note. Ladue v. Railroad Co., 13 Mich. 380, 395 (87 Am. Dec. 759); Jones v. Titus, 208 Mich. 392. The assignment of tbe mortgage by Schlee, tbe mortgagee, to Zeleznik, after Schlee bad indorsed tbe mortgage note over to tbe bank, was a nullity. Ladue v. Railroad Co., supra, 396.\\\"\\nTbe giving of tbe quitclaim deed to Hallie and Freda Short without an assignment of tbe note was a nullity and conveyed no interest in tbe property that would be binding on plaintiffs.\\nIt is also urged by appellants that plaintiffs' bill should be dismissed for the reason that they did not come into equity with \\\"clean bands.\\\" In support of this claim it is urged that William McKeigban transferred tbe land to bis brother John J. McKeigban for tbe purpose of defrauding tbe creditors of William McKeigban. There is testimony in tbe record that in 1926 title to tbe property was talien in tbe name of John J. McKeigban to avoid tbe creditors of William, but there is no evidence that Hallie Short was at any time a creditor of William McKeigban.\\nTbe misconduct which will move a court of equity to deny relief must bear a more or less direct relation to tbe transaction concerning which complaint is made. Relief is not denied merely because of tbe general morals, character or conduct of tbe party seeking relief.\\nIn Rosenthal v. Lipsitz, 251 Mich. 195, we said:\\n\\\"Relief to Commercial National Company, second mortgagee, was denied seemingly on the theory that it did not come into court with clean hands. Those to whom it sold bonds might perhaps have avoided the purchase, and in this respect it was open to censure. It took up the hohds. It was guilty of no fraud or misconduct with respect to the parties before the court, and its mortgage contract is not tainted with fraud or illegality. That its hands may be unclean with respect to matters and persons not here involved is not ground for denying relief.\\\"\\nIn the case at bar, the conduct of plaintiffs, of which appellants complain, is too far removed from the matters and persons here litigating to invoke the \\\"clean hands\\\" doctrine.\\nThe decree of the trial court is affirmed, with costs to plaintiffs as against defendants Hallie and Freda Short.\\nChandler, C. J., and Boyles, North, Starr, Butzel, and Bushnell, JJ., concurred. Wiest, J., did not sit.\"}"

mich/1841490.json

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+"{\"id\": \"1841490\", \"name\": \"MAINE v. NEUMAN\", \"name_abbreviation\": \"Maine v. Neuman\", \"decision_date\": \"1930-12-02\", \"docket_number\": \"Docket No. 132, Calendar No. 35,196\", \"first_page\": \"392\", \"last_page\": \"393\", \"citations\": \"252 Mich. 392\", \"volume\": \"252\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T19:33:35.621699+00:00\", \"provenance\": \"CAP\", \"judges\": \"\\\"Wibst, C. J., and Butzel, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred.\", \"parties\": \"MAINE v. NEUMAN.\", \"head_matter\": \"MAINE v. NEUMAN.\\n1. Appeal and Error \\u2014 Questions Open to Review.\\nWhere, in ease tried without jury, there are no findings of fact and conclusions of law, no request therefor, and no exceptions, there is nothing to review.\\n2. Same.\\nWhere there is no exception to findings, only question open to review, on assignment of error, is whether findings support judgment.\\nCase-made from Wayne; Boot (Jesse H.), J., presiding.\\nSubmitted October 22, 1930.\\n(Docket No. 132, Calendar No. 35,196.)\\nDecided December 2, 1930.\\nCase by Bobert J. Maine, by next friend, against Theodore C. Neuman, doing business as Neuman Cleaners & Dyers, in common pleas court, for personal injuries sustained in an automobile accident. From judgment for plaintiff, defendant appealed to the circuit court. Judgment for defendant is reviewed by plaintiff by case-made.\\nAffirmed.\\nJohn W. Bennett, for plaintiff.\\nVandeveer & Vandeveer, for defendant.\", \"word_count\": \"345\", \"char_count\": \"2145\", \"text\": \"Clark, J.\\nPlaintiff was injured while riding as a guest in an automobile of defendant.. Averring that his injuries were due to negligence of defendant, he brought suit in the common pleas court of Detroit. The cause was appealed and tried without a jury. Defendant had judgment, which plaintiff reviews on case-made.\\nAt the conclusion of the trial, the judge announced his decision. There are no findings of fact and conclusions of law, no request for them, and no exceptions. There is nothing to review. Simon v. Zarevich, 213 Mich. 662.\\nAssuming that the announcement of decision hy the trial judge may be treated as findings, still there is no exception thereto, and the only question, therefore, open on review, is whether the findings support the judgment, provided it is made the basis of an assignment of error. Dennison v. Carpenter, 213 Mich. 658; Kooman v. De Jonge, 186 Mich. 292; Mills v. General Discount Corporation, 222 Mich. 242.\\nGranting there is proper assignment of error raising the question, it appears that the court found no negligence of defendant. Clearly, this supports the judgment of no cause of action.\\nAffirmed.\\n\\\"Wibst, C. J., and Butzel, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred.\"}"

mich/1841658.json

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+"{\"id\": \"1841658\", \"name\": \"DELANEY v. POND\", \"name_abbreviation\": \"Delaney v. Pond\", \"decision_date\": \"1957-12-24\", \"docket_number\": \"Docket No. 34, Calendar No. 47,099\", \"first_page\": \"685\", \"last_page\": \"688\", \"citations\": \"350 Mich. 685\", \"volume\": \"350\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T00:38:35.278016+00:00\", \"provenance\": \"CAP\", \"judges\": \"Dethmers, C. J., and Sharpe, Smith, Edwards, Yoelker, Carr, and Black, JJ., concurred.\", \"parties\": \"DELANEY v. POND.\", \"head_matter\": \"DELANEY v. POND.\\n1. Easements \\u2014 Pipar\\u00edan Eights \\u2014 Mooring of Boats \\u2014 Sunbathing.\\nOwners of interior lots of a subdivision in whose favor there was dedicated an easement 10' wide across certain lots as right of access to river and lake for appurtenant riparian rights were not thereby entitled to permanently moor boats on the easement or on submerged lands of the owners of the-servient estate nor use the latter\\u2019s lands for sunbathing.\\n2. Same \\u2014 Construction.\\nThe use of an easement must be confined strictly to the purposes, for whieh it was granted or reserved.\\nAppeal from Oakland; Adams (Clark J.), J.\\nSubmitted October 10, 1957.\\n(Docket No. 34, Calendar No. 47,099.)\\nDecided December 24, 1957.\\nBill by Max W. Delaney and 10 other property owners against Arthur R. Pond and 12 other property owners in subdivision to establish rights under easement in respect to access to river and lake. Decree granting partial relief. Plaintiffs-appeal.\\nAffirmed.\\nRobert D. Heitsch, for plaintiffs.\\nBeer, Rowston <& Currah (Philip E. Rowston, of counsel), for defendants.\\nBeferences for Points in Headnotes\\n17A Am Jur, Easements \\u00a7 119.\\n17A Am Jur, Easements \\u00a7 115.\", \"word_count\": \"932\", \"char_count\": \"5435\", \"text\": \"Kelly, J.\\nPlaintiffs are owners of lots in the interior of a subdivision, and defendants own lots in the same subdivision facing on Clinton river. Plaintiffs' action in chancery is to determine rights from the grant of an easement. Plaintiffs appeal from the decree of Hon. Clark J. Adams, circuit judge of Oakland county, providing:\\n\\\"It is ordered, adjudged and decreed defendants are restrained from interfering with plaintiffs' right to access to the water of the Clinton river (new channel) and Loon lake, for the purpose of swimming, fishing, bathing, wading, and boating in those waters.\\n\\\"It is' further ordered, adjudged, and decreed the request of plaintiffs for an injunction restraining the defendants from interfering with the plaintiffs' sun bathing and permanent mooring of boats on the property included in the easement is denied.\\\"\\nThe easement in question is set forth in the dedication of the plat as follows :\\n\\\"And that the park and outlot of 'A' and the 10-foot easement along the rear of lots 23 to 31, both inclusive, all as shown on said plat, and all riparian rights appurtenant to all lots and property in said subdivision, are hereby dedicated only to the common use and enjoyment of the owners of all lots in said subdivision.\\\"\\nRestriction number 15, imposed on all the lots in the subdivision, states that:\\n\\\"A 10-foot easement has been provided for along the edge of the Clinton river (new channel) over and across lots 23 to 31, inclusive, access to this easement' being from the area designed as 'park' all of which is shown on the recorded plat. This easement is provided for access to the river and shores of Loon lake by property owners in this subdivision.\\\"\\nThe question presented' in this appeal' is whether this 10-foot easement, created to provide access to the river, gave to plaintiffs the right to moor boats on said easement or submerged lands of the owners of the servient estate (appellees).\\nThe rights granted to plaintiffs to make use of the water granted to plaintiffs no rights to the bordering land beyond that necessary to permit enjoyment of the water rights. In Douglas v. Bergland, 216 Mich 380 (20 ALR, 197), we held that the right to fish in the waters of a navigable lake does not carry with it the right to trespass upon the fast land of a riparian owner or to appropriate his property in the exercise of such right.\\nThe use of an easement must be confined strictly, to the purposes for which it was granted or reserved.; A principle which underlies the use of all easements is that the owner of an easement cannot materially increase the burden of it upon the servient estate or impose thereon a new and additional burden. See 17A Am Jur, Easements, \\u00a7 115, p 723.\\nThe chancellor in his opinion stated:\\n\\\"In the present case the extent of the easement' is limited by specific words to the right of access to Clinton river and Loon lake. Defendants' lots are privately owned and subject to the plaintiffs' easement. This right of access is clearly intended to permit the plaintiffs to exercise their right to enjoy the waters of the Clinton river and Loon lake in common with all other property owners in the subdivision. Such right, however, to enjoy the use of the adjacent waters cannot logically be construed as a right to use the lands of the defendants, for purposes other than those related to the use of the water itself.\\n\\\"It would seem to follow logically therefore, that the plaintiffs do have an unrestricted right of access to the use of the waters of Clinton river and Loon lake for the purpose of swimming, fishing, bathing, wading and boating. It does not follow that the plaintiffs have the right to sun bathe on the defend ants' property, for it cannot be said that sun bathing is a use of the adjacent waters, nor can it be said that permanent mooring a boat is included in the right to fish and boat. Obviously plaintiffs have the right to use the easement for the purpose of carrying their boats to the waters of the river and lake, but they cannot store them permanently on the easement way, nor attach them to stakes-driven into the land.\\\"\\nWe agree with the chancellor, and the decree is affirmed. Costs to appellees.\\nDethmers, C. J., and Sharpe, Smith, Edwards, Yoelker, Carr, and Black, JJ., concurred.\"}"

mich/1862488.json

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+"{\"id\": \"1862488\", \"name\": \"SECURITY BANK NORTHEAST v. DEPARTMENT OF TREASURY\", \"name_abbreviation\": \"Security Bank Northeast v. Department of Treasury\", \"decision_date\": \"1993-02-16\", \"docket_number\": \"Docket No. 131544\", \"first_page\": \"249\", \"last_page\": \"253\", \"citations\": \"198 Mich. App. 249\", \"volume\": \"198\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T23:50:33.718070+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Weaver, P.J., and Wahls and Taylor, JJ.\", \"parties\": \"SECURITY BANK NORTHEAST v DEPARTMENT OF TREASURY\", \"head_matter\": \"SECURITY BANK NORTHEAST v DEPARTMENT OF TREASURY\\nDocket No. 131544.\\nSubmitted June 1, 1992, at Lansing.\\nDecided February 16, 1993, at 9:25 a.m.\\nLeave to appeal sought.\\nSecurity Bank Northeast, and several other banks, brought an action in the Court of Claims against the Department of Treasury, seeking a declaration that \\u00a7 3(b) of the intangibles tax act, MCL 205.133(b); MSA 7.556(3)(b), entitled them to exemptions from intangibles taxes. The court, Carolyn Stell, J., ruled that the plaintiffs were not entitled to the exemptions. The plaintiffs appealed.\\nThe Court of Appeals held:\\n1. The exemptions set forth in \\u00a7 3(b) do not apply to banks.\\n2. The exemptions in \\u00a7 3(b) may not be applied to the tax liability imposed upon banks under \\u00a72(b), MCL 205.132(b); MSA 7.556(2)(b), without creating surplusage. A statutory construction that would create surplusage is to be avoided if at all possible.\\n3. The plaintiffs have presented no cogent reason to overrule the defendant\\u2019s consistent interpretation that the act disallows banks and other financial institutions from claiming exemptions listed under \\u00a7 3(b)\\nAffirmed.\\nTaxation \\u2014 Intangibles Tax Act \\u2014 Exemptions \\u2014 Banks and Banking.\\nThe exemptions from taxation listed in \\u00a7 3(b) of the intangibles tax act detail the exemptions to tax liability imposed in \\u00a7 2(a) of the act; the exemptions set forth in \\u00a7 3(b) do not apply to banks; the exemptions applicable to banks are specified in \\u00a7 2(b) of the act (MCL 205.132[a],[b], 205.133[b]; MSA 7.556[2][a],[b], 7.556[3][b]).\\nReferences\\nAm Jur 2d, Banks \\u00a7 14; State and Local Taxation \\u00a7 241.\\nSee ALR Index under Banks and Banking; Taxes.\\nWilliam R. Connolly, for the plaintiffs.\\nFrank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Richard R. Roesch and Russell E. Prins, Assistant Attorneys General, for the defendant.\\nBefore: Weaver, P.J., and Wahls and Taylor, JJ.\", \"word_count\": \"1207\", \"char_count\": \"7174\", \"text\": \"Taylor, J.\\nPlaintiff banks appeal as of right the Court of Claims ruling that certain exemptions from the intangibles tax act (ita), MCL 205.131 et seq.; MSA 7.556(1) et seq., may not be used by plaintiffs to reduce their tax base. We affirm.\\nPlaintiffs, all banks incorporated and doing business in Michigan, originally filed intangibles tax returns under \\u00a7 2(b) of the act. That subsection allows plaintiffs to compute tax liability on the basis of total deposit liability less governmental deposits, deposits of commercial banks, and items of their own issue. Later, plaintiffs filed amended returns claiming refunds for the years 1985 to 1988 on the basis that they were entitled to an exemption under \\u00a7 3(b)(8), deducting the amount of individual retirement accounts on deposit from their total deposit liability, thereby reducing their intangibles tax base. One plaintiff, Bank of Commerce, also claimed additional exemptions under \\u00a7 3(b)(6), (9), and (12a), excluding from its tax base the deposits of religious and nonprofit organizations, insurance companies, and credit unions, respectively.\\nOn January 17, 1990, the Commissioner of Revenue rejected plaintiffs' claims for refunds. Plaintiffs' motion for declaratory judgment was heard in the Court of Claims, which ruled that plaintiffs could deduct from their total deposit liability only federal and state governmental deposits, deposits of other banking institutions, and their own items of issue, but were not entitled to take advantage of the exemptions in \\u00a7 3(b).\\nThe only issue before us is whether the exemptions set forth in \\u00a7 3(b) apply to banks. For the following reasons, we hold that they do not, and affirm the decision of the Court of Claims.\\nThe preamble to the ita states as its purpose the \\\"imposition and the collection of a specific tax upon the privilege of ownership of intangible personal property and on certain enterprises, having possession of intangible personal property of another . . . . \\\"\\nSection 2(a) levies intangibles taxes upon\\neach resident or nonresident owner of intangible personal property not hereinafter exempted having a situs within this state . on the privilege of ownership of each item of intangible personal property owned by him. [MCL 205.132(a); MSA 7.556(2)(a). Emphasis added.]\\nSection 2(b) levies intangibles taxes upon\\neach bank doing business in this state . on the moneys on deposit in the bank . . . less the amount of deposit liabilities or share liabilities owing to the federal government [agency or instrumentality] . to this state [agency, instrumentality or subdivision] . or to any other bank . . . and the bank[']s own items of issue. [MCL 205.132(b); MSA 7.556(2)(b). Emphasis added.]\\nWe note that \\u00a7 2(a) exemptions are made by reference, but that \\u00a7 2(b) exemptions are made by specification.\\nSection 3, MCL 205.133; MSA 7.556(3), deals with deductions and exemptions. Section 3(a) provides for a deduction that is specifically inapplica ble to banks. Section 3(b), the subsection in dispute in this case, lists several exemptions from the intangibles tax. Unlike \\u00a7 3(a), it does not differentiate between owners of intangible personal property and banking institutions with intangible personal property of others on deposit.\\nPlaintiffs argue that the laundry list of exemptions set forth under \\u00a7 3(b) should be tacked onto the specific exemptions for banks contained in \\u00a7 2(b). However, \\u00a7 2(b) and 3(b) are clearly aimed at different types of taxpayers. The express language of \\u00a7 2(a) puts the reader on notice that some personal property may be \\\"hereinafter exempted\\\" from the tax base, but that cannot be said of \\u00a7 2(b), which is self-contained and makes no reference to other parts of the act. The \\u00a7 3(b) list thus details exemptions to tax liability imposed in \\u00a7 2(a).\\nFurther, \\u00a7 3(b) exemptions may not be applied to tax liability imposed upon banks under \\u00a7 2(b) without creating surplusage. A statutory construction creating surplusage is to be avoided if at all possible. Altman v Meridian Twp, 439 Mich 623, 634; 487 NW2d 155 (1992). Section 2(b) specifically provides an exemption for moneys on deposit in the banking institution that are owed to \\\"any other bank or building and loan or savings and loan association.\\\" This exemption is duplicated in \\u00a7 3(b) (11), which exempts \\\"[i]ntangible personal property belonging to banks, national banking associations, [and] savings and loan associations. . . . \\\" If \\u00a7 3(b) exemptions apply to taxes imposed on banks under \\u00a7 2(b), then either \\u00a7 3(b)(ll) or part of \\u00a7 2(b) would be surplusage. Because the construction creating surplusage can be avoided, it is necessary to do so.\\nMoreover, both before and after the Legislature amended the ita in 1975, defendant has consis tently interpreted the ita so as to disallow banks and other financial institutions from claiming exemptions listed under \\u00a7 3(b). We give great weight to this consistent administrative interpretation of the ita by the agency responsible for its administration, and decline to overrule it where we have no cogent reason to do so. Trumble's Rent-L-Center, Inc v Employment Security Comm, 197 Mich App 229; 495 NW2d 180 (1992).\\nAffirmed.\\nMCL 205.132(b); MSA 7.556(2)(b).\\nMCL 205.133(b)(8); MSA 7.556(3)(b)(8).\\nSee 1975 PA 229.\"}"

mich/1863866.json

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+"{\"id\": \"1863866\", \"name\": \"LOUCKS v. BAUMAN\", \"name_abbreviation\": \"Loucks v. Bauman\", \"decision_date\": \"1959-01-12\", \"docket_number\": \"Docket No. 100, Calendar No. 47,631\", \"first_page\": \"514\", \"last_page\": \"532\", \"citations\": \"356 Mich. 514\", \"volume\": \"356\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T23:58:56.769445+00:00\", \"provenance\": \"CAP\", \"judges\": \"Carr and Kelly, JJ., concurred with Dethmers, C. J.\", \"parties\": \"LOUCKS v. BAUMAN.\", \"head_matter\": \"LOUCKS v. BAUMAN.\\nWorkmen\\u2019s Compensation \\u2014 Amputation of Leg \\u2014 Total Disability \\u2014Further Compensation \\u2014 -Further Development.\\nPumper who was paid compensation for loss of left leg held, not entitled to further compensation for a period antedating 1 year of time application was filed, for total disability due to instability of right leg, where workmen\\u2019s compensation appeal board found that the total disability resulted from both the amputation of the left leg and unstable condition of the right leg which had existed since the date of the original injury-, the application being for further compensation for the original injury and not an application for compensation for a further development (CL 1948, \\u00a7 413.14).\\nSmith, Black, and Voelker, JJ., for dismissal of writ granting review.\\nReferences for Points in Headnotes\\n58 Am Jur, Workmen\\u2019s Compensation \\u00a7\\u00a7 501, 510.\\nAppeal from Workmen\\u2019s Compensation Appeal Board.\\nSubmitted April 18, 1958.\\n(Docket No. 100, Calendar No. 47,631.)\\nDecided January 12, 1959.\\nHarvey Loucks, after receiving compensation for specific injury due to amputation of leg, presented his claim against Marshall H. Bauman, Leo S. Schrot and State Accident Fund for additional compensation for loss of use of other limb: Award to plaintiff. Defendants appeal.\\nAffirmed in part, reversed in part.\\nR. L. Miles, for plaintiff.\\nHarry F. Briggs (Stanley Dodge, of counsel), for defendants.\", \"word_count\": \"5569\", \"char_count\": \"33341\", \"text\": \"Dethmers, C. J.\\nOn Jane 20, 1947, plaintiff suffered an accidental injury necessitating amputation of his left leg. On March 15, 1948, the workmen's compensation commission awarded him compensation for 200 weeks for specific loss of his left leg, payments ending April 20, 1951.\\nOn November 12, 1954, plaintiff filed application for hearing and adjustment of claim for injuries to his right leg sustained in that same accident on June 20, 1947. On June 4, 1957, the workmen's compensation appeal board made a further award to him for total disability based on its finding that, \\\"The record clearly indicates that the plaintiff has been totally-disabled from performing the work of a pumper since his injury, not only because of the amputation of his left leg but also by reason of the unstable condition of his right leg independent of his left leg.\\\" They awarded compensation from May 11, 1951, to December 31, 1952.\\nDefendants appeal and rely on CL 1948, \\u00a7 413.14 (Stat Ann 1950 Rev \\u00a7 17.188), which provides:\\n\\\"If payment of compensation is made (other than medical expenses) and an application for further compensation is later filed with the commission, no compensation shall be awarded by the commission for any period which is more than 1 year prior to the date of the filing of such application.\\\"\\nDefendants urge as controlling Lynch v. Briggs Manufacturing Co., 329 Mich 168, which applied the quoted statutory 1-year limitation on the retroactive effect of an order for further compensation. On this authority, defendants contend that, it was not competent for the appeal board to allow compensation for any period before November 12, 1953, that being 1 year prior to plaintiff's filing of his application, and that because the award, as made, is for a period antedating that date it is void and should be reversed.\\nPlaintiff relies on Morgan v. Lloyds Builders Inc., 344 Mich 524. There the plaintiff had suffered an accidental eye injury on January 14, 1948, a piece of metal having entered his eye, which, after a course of treatment, was surgically removed from his eye. In that connection he had been paid compensation from January 15 to January 31, 1948, and from December 13, 1948, to January 11, 1949. In 1951 further difficulty developed in his eye, for which he was treated by doctors, which resulted in loss of vision in the eye on May 9, 1951. On July 28, 1953, plaintiff filed an application for hearing and adjustment of claim. This Court held him entitled to compensation for loss of the eye as from May 9, 1951, the date of its loss, which was over 2 years prior to the filing of the application. This Court held the mentioned 1-year statutory limitation inapplicable because the application filed on July 28, 1953, was not, in the language of the statute, \\\"an application for further compensation,\\\" but, rather, \\\"a petition for loss of vision,\\\" which amounted to a \\\"further development\\\" occurring after the original disability for which compensation already had been paid. Thus, Morgan was distinguishable from Lynch, in which the 1-year limitation was applied, because in Lynch the application was for \\\"further compensation\\\" inasmuch as plaintiff there was held to be \\\"still totally disabled in his skilled employment because of his occupational injury of 1946\\\" (date of original injury) and there was no finding of subsequent development as in Morgan.\\nIn the instant case, plaintiff speaks of a further development, after loss of the left leg, in that the \\\"increased weight-bearing due to the loss of Louck's left leg directly contributed to and aggravated the unstable condition of his right leg.\\\" The appeal board made no such finding of fact that the disability of the right leg was a further development, and there is no testimony to support such theory in the appendix. On the contrary, the appeal board expressly found that plaintiff's total disability resulted from both the amputation of the left leg and the unstable condition of the right leg which had existed since the date of his accidental injury on June 20, 1947. This is, then, according to the finding of fact of the appeal board, not a case of a further development, resulting in a disability which did not exist when compensation-was allowed for the loss of the left leg, but, rather, an application for further compensation for a disability existing from the date of injury, on which an award of compensation may not, under the quoted language of the statute, be made for any period more than 1 year prior to filing the application on November 12, 1954.\\nThe award of the hearing referee found that plaintiff had a disability resulting from an injury which, arose out of and in the course of his employment, but that he had suffered no wage loss since November 9, 1953, that being 1 year prior to the date appearing on the application for further compensation, and that, therefore, he was not entitled to compensation benefits. The referee thus having applied the mentioned 1-year limitation of the statute and denied plaintiff compensation benefits, there was no occasion for defendant, on appeal to the workmen's compensation appeal board from the referee's finding of disability arising out of and in the course of employment, to urge the bar of the statute to compensation for any time antedating the 1-year period. Necessity therefor arose only on appeal here, after the appeal board granted compensation in violation of that statutory bar. The provision of the statute in question does not impose a limitation of actions, fixing a time limit within which actions may be brought, which may be deemed waived by defendant's failure to assert it in defense, but, on the contrary, it places a limitation on the power of the appeal board which cannot be waived by parties. We allowed appeal expressly limited to the sole question of the effect and applicability of this statutory limitation or bar. Plaintiff has briefed that question only in this Court, as has defendant, and has not raised the point that defendant failed to raise or argue the statutory bar before the appeal board. It is properly before us on this appeal.\\nThe award is reversed and set aside insofar as it provides for compensation prior to November 12, 1953.\\nCarr and Kelly, JJ., concurred with Dethmers, C. J.\\nBlack, J.\\n(for dismissal of writ). Lawyers and judges are wont to say that hard cases make bad law. Yet the contemplative student of appellate decisions knows that the antithetic soft case- \\u2014 the one of apparent insignificance and indifferent presentation\\u2014 has always been our greatest breeder of regrettable precedent. This, depending on the swing of majority vote, may become such a case.\\nOur special order granting certiorari in this case was entered November 26, 1957. It reads as follows:\\n\\\"In this cause an application is filed by defendants for leave to appeal from an order of the workmen's compensation appeal board and an answer in opposition thereto having been filed by plaintiff and due consideration thereof having been had by the court, it is ordered that the application be and the same is hereby granted, limited to the single question of appellants' claim that CL 1948 \\u00a7 413.14 (Stat Ann 1950 Rev \\u00a7 17.188) bars or limits the award currently under consideration.\\\"\\nTwo of our Brothers, assigning separate reasons, allege that the limited \\\"single question\\\" above is properly before us. One says that section 413.14 \\\"places a limitation on the power of the appeal board which cannot be waived by parties.\\\" This I shall discuss later. Another says \\\"The appeal board did apparently have the issue (of application to the case of section 413.14) before it, since its order makes, reference to the 1-year limitation date applied by the referee.\\\"\\nFirst: When this Court grants certiorari, pursuant to section 12 of part 3 of the workmen's compensation act (CL 1948, \\u00a7 413.12 [Stat Ann 1950 Rev \\u00a717.186]), do we review any question the hearing referee may have decided (we say \\\"may\\\") absent due presentation of the same question to the appeal board? Until now, the answer has been one of repose.\\nDe Witt v. Grand Rapids Fuel Co., 346 Mich 209, 218: \\\"The question so posed was not brought to the attention of the commission and it is not open to eon- sideration here (McLean v. Eaton Manfg. Co., 286 Mich 285).\\\"\\nMcLean v. Eaton Manfg. Co., 286 Mich 285, 290: \\\"The opinion of the department is silent on the question of the sufficiency of the evidence as to Dr. Foust's bill. We do not consider questions raised in a claim of appeal from a decision of the department of labor and industry unless it affirmatively appears that the point was specifically urged before the department. See Aske v. W. E. Wood Co., 248 Mich 327, where the Court said:\\n\\\" 'The rules of the department of labor and industry require an employer, if denying liability, to set forth with reasonable detail and certainty the grounds of defense relied upon. Review here is limited to points made and presented there. We will consider such points only as the record affirmatively shows were presented to the commission for decision. This record does not show that the point of loaned employee was submitted to the commission. It is not enough that the point could have been presented under the notice of contest and the evidence.'\\n\\\"See, also, Wheat v. Clark & Hulse, 227 Mich 556, where the Court held that the question of applicability of the general statute of limitations was not stated with sufficient particularity in the application for review by the department, to be considered on appeal to the Supreme Court.\\\"\\nMoore v. Fleischman Yeast Co., 268 Mich 668, 672: \\\"The department of labor and industry adopted rules of practice and procedure for carrying out the provisions of the workmen's compensation act. Rule No 15 provides that if the employer or insurer deny liability, they must file an answer setting forth with reasonable details and certainty all the essential grounds of defense, to which they will be limited both on the hearing before the deputy and on review before the commission, unless in exceptional cases and for good cause shown an amendment is permitted to he filed. Appellants based their defense almost exclusively on the ground that there was no employment. Appellants gave no notice of this additional ground of defense and plaintiff was not hound to meet it. Roach v. Kelsey Wheel Co., 200 Mich 299.\\\"\\nRaykov v. Crittall Casement Window Co., 256 Mich 28, 29, 30: \\\"At the hearing before the deputy commissioner, defendants raised the point that plaintiff had not answered their petition to stop compensation, and cited Rule No 20 of the rules of the department. The record does not show this question to have been urged before the commission on review. Therefore it will not be considered here. Aske v. W. E. Wood Co., 248 Mich 327.\\\"\\nReno v. Holmes, 238 Mich 572, 573, 574: \\\"Defendants here urge that the agreement for compensation for the loss of a foot is res judicata and cite the holdings of this Court to the effect that the commission may not grant rehearings. But no such claim was made in denying liability. In Roach v. Kelsey Wheel Co., 200 Mich 299, we considered the power of the (then) board to make rules, quoted Buie No 5 adopted by it which limited the defenses to such as are stated in the denial of liability, and said (p 305):\\n\\\" 'The rule in question was within the power of the hoard to adopt. It is reasonable and valid; it not only binds the board, and litigants before it, but it binds this Court. Being reasonable and within the power of the board, this Court must follow it and recognize it in cases coming here for review.'\\n\\\"The defense of res judicata, not having been made in defendants' denial of liability, can not he here urged.\\\"\\nDoherty v. Township of Grosse Isle, 205 Mich 592 599: \\\"The claim that Doherty was a casual employee was concededly not properly raised before the accident board nor passed upon by it. Defendant's written grounds of defense in denial of liability filed with, the board under its Rule No 5, to which defendant is limited, contains no notice of such claim. In that particular the situation is substantially as in Roach v. Kelsey Wheel Co., 200 Mich 299, where the subject is amply discussed.\\\"\\nPhrasing it from McLean's quotation of Ashe, this first question is whether the record \\\"affirmatively shows'^ that the \\\"single question\\\" of limitation (alleged in this Court under said section 413.14) was presented to the appeal board for decision. Better than Ashe's record, this one gives forth an especially forceful answer. It \\\"affirmatively shows\\\" that the mentioned \\\"single question\\\" was not submitted to the appeal board for decision and that the parties carefully confined themselves, before the referee as well as the board, to 2 specific defensive questions, neither of which is before us on account of the curtailing-scope of our said order of November 26, 1957. What is more, defendants' unamended and detailed answer, filed below November 24, 1954, makes no claim or remote hint that Mr. Loucks' present application is \\\"an application for further compensation\\\" to which said CL 1948, \\u00a7 413.14 (Stat Ann 1950 Rev \\u00a7 17.188) should be applied. By what authority, then, do my Brothers assume to decide that which the parties studiously avoided below?\\nThe Chief Justice, without reasoning or authority, answers as stated above, viz., that said section 413.14 \\\"places a limitation on the power of the appeal board which cannot be waived by parties.\\\" At this point, foregoing unanimous authorities considered, we come to major disagreement. The undersigned will not be enticed into decision of such meritorious question until, in this or some future case, the appeal hoard is ashed to determine the pivot premise thereof, namely, that an application for compensation for wage loss arising from disability, such disability having ultimately arisen from injury to a member caused by the same industrial accident in which another and specifically-compensable member is lost, becomes (when filed after payment of compensation for the specific loss) an application for further compensation within said section 413.14.\\nFor the reverse of this situation (disability award first and specific loss award second) see Morgan v. Lloyds Builders Inc., 344 Mich 524. There this Court expressly distinguished \\u2014 for the purposes of said section 413.14 \\u2014 an award of compensation for disability-caused wage loss from an award for specific loss. And Morgan does not stand alone in such regard. See opinion of Mr. Justice Smith in Jones v. Cutler Oil Co., 356 Mich 487, where the same distinction is made with irrefutable interpretive reasoning.\\nThe 2 specific defensive questions mentioned above were made the basis of a motion to dismiss before the referee. They were the only questions defendants urged before the referee. They were the only questions defendants briefed for and submitted to the appeal board. They are the 2 questions the appeal board did consider and decide as shown in its unanimous and excellently-reasoned opinion on review. Later, such 2 questions were included (along with the new \\\"single question\\\" posed under said section 413.14) in defendants' application for leave to appeal. Such 2 questions will be found in defendants' brief to the appeal board.\\nNow then: Careful reading of the complete transcript of testimony and proceedings before the referee leads to conclusion that defendants, quite understandably, were solely and exclusively interested \\u2014 in both forums below \\u2014 in obtaining a favorable answer to either of the 2 raised questions. Such answer or answers if given would have the effect of wiping out, by adjudication and once for all, every claim for compensation against defendants Mr. Loucks \\u2014 having-lost one leg and having injured the other by the accident of 1947 \\u2014 might have presented or might hereafter present following payment of the 1947 award for specific loss (of the one leg). In our view this explains the complete absence \\u2014 in pleadings, transcripts, briefs and entire record as brought here \\u2014of any address by any party to said section 413.14. It proves also that the hearing referee (if the notation upon the printed form of award shows that his purpose was that of avoiding the presented questions by applying said section 413.14) proceeded solely on his own motion and that defendants did not care to review, before the appeal board, any question aside from those actually presented. Too, it explains view of the undersigned that this Court should undertake no determination of applicability to any case of section 413.14 unless and until the appeal board has done so or has refused to do so.\\nSecond: It is said that the gratuitous and enigmatic notation of the hearing referee, as written by him into the award (quoted at margin), constitutes evidence that the \\\"single question\\\" brought here was raised before as well as decided by the referee. There being no direct or indirect reference to said section 413.14 \\u2014 anywhere in the voluminous record of testimony and proceedings as certified to ns \\u2014 and no suggestion below that Mr. Loucks' 1947 and 1954 application were related under the section so that the latter constituted \\\"an application for further compensation,\\\" it would appear that our Brothers at this point strain themselves. And, as they heave in mighty unison, we note that the Brothers receive no support.from defendants' counsel. The latter have not the temerity to suggest that either the referee or the appeal board was asked to decide any question under section 413.14.\\nEven the date (November 9,1953) specified by the hearing referee cannot be fitted \\u2014 as a matter of intention on his part \\u2014 to the statute, since the date of filing of plaintiff's application was November 12, 1954. Surely, if the referee on his own motion and without advising counsel was intent on application to the case of said section 413.14, it is fair to assume that, having identified the intended statutory provision, he would have ruled in some explicit form that defendants' application, as filed November 12, 1954, was (in the light of previous payment to plaintiff of an award for specific loss) a 1-year-limited application for \\\"further compensation.\\\" Whatever the referee may have had in mind, it was not the appeal board's job to decode his quoted cryptogram short of request by either party. In turn, such is no function of this Court on review by certiorari. Better indeed that we stick to our known appellate last.\\nBut it is said that plaintiff has briefed the \\\"single question\\\" above and has failed to \\\"raise the point that defendant(s) failed to raise or argue the statutory bar before the appeal board.\\\" To this our answer is short. The action or inaction of counsel\\u2014 indeed, their agreeable stipulation if any \\u2014 cannot serve- to make reviewable by this Court questions not brought to attention of the appeal board. Our jurisdiction, on statutory review by certiorari of decisions of the appeal board, is appellate only. We do not hear and determine compensation cases-de novo.\\nTo recapitulate: We have erred once in this case. What turns out to be a legally groundless application for certiorari was erroneously, if inadvertently, granted by our special order quoted infra. Misled\\u2014 unintentionally to be sure \\u2014 by briefs supporting and opposing defendants' application, this Court unanimously resolved to issue its writ for the sole and limited purpose of reviewing a question which, as; we now discover on review of the complete record,, is not reviewable according to consistent declarations appearing in our reports. This first error is understandable. Likewise it is easily repaired.\\nNow, by separately-submitted opinions, it is proposed that we err again. This second error, which if it receive majority support will be infinitely worse-than the first because it will have been committed with contemplated knowledge of decisive facts, impels observation that confession of the first is better than an awkwardly reasoned effort to justify it. The 2 mistakes, if one be added to the other, make up a compound of pedantic bitters this Court will have to swallow in some future case.\\nThe statute (CL 1948, \\u00a7 413.16 [Stat Ann 1950 Rev \\u00a7 17.190]) expressly commands that \\\"All questions arising under this act shall be determined by the compensation commission [now appeal board].\\\" Since the question of applicability of section 413.14 has originated here, without previous submission thereof to the appeal board, it appears to the undersigned that some of our Brethren would proceed to ignore the statute as well as the fixed rules by which our function on review (by certiorari) is expressly limited. Furthermore, standing as we now do in this particular field of interpretation of an involved and labyrinthian statute \\u2014 a statute the appeal board is steadily required to interpret and apply in a perfect maze of perplexing cases, \\u2014 we think it wise to observe that the specialized experience and training of the members of the appeal board relevantly transcend our more general learning and that this Court should, whenever possible, just for the sake of ever-needful certainty and accuracy in writing the bench law of this State, insist on the benefit of the board's views before it undertakes on certiorari to interpret and apply a specific section or sections of such statute.\\nWe would dismiss the writ as having been improvidently issued.\\nSmith and Voelkee, JJ., concurred with Black, J.\\nAPPENDIX\\n(Defendant's complete brief to the appeal board, commencing with heading \\\"Argument.\\\")\\nAKG\\u00dcMENT\\n1. Did the hearing on January 4, 1956, constitute a rehearing as to the injuries plaintiff sustained on June 20, 1947, where the workmen's compensation commission made a prior finding and order as to such injuries on March 15, 1948?\\nIt has been repeatedly held by the Supreme Court that the workmen's compensation department may not grant a rehearing. McLean v. Eaton Manfg. Co., 286 Mich 285 and Boyich v. J. A. Utley Co., 306 Mich 625. The defendants objected to the hearing in the instant case, and asked that the application be dismissed. It was said in the McLean Case, supra, 294:\\n\\\"A rehearing involves a reopening of the case for a redemption of basic facts. This the department may not permit.\\\"\\nCertainly the injuries incurred at the time of the accident on June 20, 1947 were basic facts which were determined in the findings of the workmen's-compensation commission on March 15, 1948. No-mention was made of an injury to the right leg in the commission's opinion. As a matter of fact, it could be said that the findings and order of the-commission were res judicata as to the injuries-sustained at the time of the accident. Boyich Case, supra.\\n2. Did the plaintiff give notice to his employers of an injury to the right leg and make claim for compensation benefits within the statutory period as a result of the alleged injury?\\nIn any event, there is nothing in the record of this case to indicate that the plaintiff gave notice-to the employer of an injury to the right leg as a result of the accident of June 20, 1947, nor is there-anything to indicate that the defendant employers had notice or knowledge of such an injury as now claimed by the plaintiff. No claim for such an injury was made until the plaintiff filed his application for hearing on November 12, 1954. See the letter of Attorney R. L. Miles, dated October 29, 1954, attached to the application. The plaintiff failed to comply with the statute as to notice and claim of injury.\\nRELIEN\\nDefendants contend that their motion to dismiss-should have been granted by the hearing referee] for the reasons stated, and again repeat that motion,\\u00a1 and ask further that the award of the hearing referee be set aside and reversed;\\nCertain powers and duties with reference to the administration of the workmen's compensation act, vested in the workmen's compensation commission in 1948, have been transferred to the workmen's compensation appeal board by PA 1955, No 62, ch 1, \\u00a7 10 (CLS 1956, \\u00a7408.10, Stat Ann 1957 Cum Supp \\u00a7 17.6 [16] ).\\u2014Reporter.\\nThat the reader may appraise this \\\"reference,\\\" the appeal board's complete order (not its opinion on review which is carefully confined to the questions counsel presented before it) is margin-quoted as follows:\\n\\\"This cause having come before the workmen's compensation appeal board on appeal of the defendants from the award of Hearing Referee Nolan finding that plaintiff had a disability in his right leg as a result of the injury of June 20, 1947, but that he had suffered no wage loss since November 9, 1953, and therefore denying compensation; after due consideration of the evidence taken and the arguments and briefs of counsel (the appeal board having made a finding of facts and law) and it appearing to this appeal board that the award made, as aforesaid, should be modified.\\n\\\"Therefore, it is ordered that the award of the hearing referee be and it is hereby modified and plaintiff is entitled to receive and recover compensation from the defendants at the rate of $21 per week from May 11, 1951, to December 31, 1951, inclusive, and at the rate of $8.68 per week from January 1, 1952, to December 31, 1952, inclusive.\\\"\\nBy PA 1955, No 62, the \\\"appellate functions, powers and duties\\\" formerly vested in the workmen's compensation commission were transferred generally to the newly-created workmen's compensation appeal board. See section 10 thereof, CLS 1956, \\u00a7 408.10 (Stat Ann 1957 Cum Supp \\u00a7 17.6 [16]).\\nIndeed, in their brief to the appeal board, defendants characterize it as an \\\"application for hearing.\\\" See appendix.\\nThis ease was submitted to the appeal board on briefs, pursuant to Rule No 10 of the departmental rules. Defendants' brief to the board, under the heading \\\"Argument,\\\" states and argues the desired reviewable questions. It will be found annexed hereto as an appendix.\\nThe printed form of \\\"award,\\\" signed under date of April 28, 1956, by the hearing referee, consists simply of filled in blanks plus the following finding only:\\n\\\"Plaintiff has a disability in his right leg as a result of the injury of June 20, 1947. However, he has suffered no wage loss since November 9, 1953, and is therefore not entitled to compensation benefits.\\\"\\n\\\"So the last error shall be worse than the first.\\\" Matthew 27:64.\"}"

mich/1864807.json

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+"{\"id\": \"1864807\", \"name\": \"DETROIT TRUST CO. v. DETROIT TRUST CO.\", \"name_abbreviation\": \"Detroit Trust Co. v. Detroit Trust Co.\", \"decision_date\": \"1932-06-06\", \"docket_number\": \"Docket No. 227, Calendar No. 36,392\", \"first_page\": \"386\", \"last_page\": \"388\", \"citations\": \"258 Mich. 386\", \"volume\": \"258\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T21:48:54.756556+00:00\", \"provenance\": \"CAP\", \"judges\": \"McDonald, Potter, Sharpe, North, Fead, Wiest, and Bijtzel, JJ., concurred.\", \"parties\": \"DETROIT TRUST CO. v. DETROIT TRUST CO.\", \"head_matter\": \"DETROIT TRUST CO. v. DETROIT TRUST CO.\\nWills \\u2014 Construction\\u2014Income from Trust Eund Payable from Death op Testatrix.\\nUnder provisions of mil that trustee is to pay to beneficiary during course of her natural life entire net income of certain trust fund, beneficiary is entitled to net income accruing from date of death of testatrix.\\nAppeal from Wayne; Smith (Henry H.), J., presiding.\\nSubmitted March 16, 1932.\\n(Docket No. 227, Calendar No. 36,392.)\\nDecided June 6, 1932.\\nBill by Detroit Trust Company, executor of the estate of May Walker, deceased, against Detroit. Trust Company, trustee under her will, to construe the will. Decree for defendant. Plaintiff appeals.\\nAffirmed.\\nDonnelly ds Hally, for plaintiff.\\nMiller, Canfield, Paddoch S Stone, for defendant.\", \"word_count\": \"723\", \"char_count\": \"4075\", \"text\": \"Clark, C. J.\\nCounsel are agreed that the question has not been decided by this court. It is on a paragraph of the will of May Walker, giving to trustee a sum of money \\\"to pay the entire net income of said trust fund to Mrs. Predericka McMillan Crouse during the term of her natural life,\\\" and it is: \\\"Is income payable on the trust involved from date of death of testatrix to the date of turning over the fund to the trustee 1 ' ' The trial court answered in the affirmative. The plaintiff executor has appealed.\\nThe estate was productive of income from the death of testatrix and the amount and rate thereof were found in fact by the trial court and the finding is not questioned. It is not contended that the fund is residuary nor that testatrix stood in loco parentis to the beneficiary. The legacy is of income, not a part of the corpus of the estate. And this is true although the will further provides that trustee may, in its sole discretion, use any part of the trust fund for support and maintenance of beneficiary. The gift, as regards the beneficiary alone, is of income.. Interest upon a legacy is not here sought. The attempt is to secure the legacy itself, the income of the fund from the death of the testatrix. The beneficiary is entitled to the income whenever it accrues, and, as there has been such net income from the death of the testatrix over the period in question, beneficiary should have it.\\nAuthorities on the question are divided. See 40 Cyc. p. 1881. The better rule, accepted by the trial judge, is stated in a leading case, Matter of Stanfield, 135 N. Y. 292 (31 N. E. 1013), quoting:\\n\\\"Where the income of an estate, or of a designated portion, is given to a legatee for life, we think it is clear that he becomes entitled to it whenever it accrues, and if the estate is productive of income from the death of the testator, he can require the executor to account to him for the income from that time. The rule that general legacies shall not bear interest until the expiration of one year from the grant of letters testamentary, or of administration (Matter of McGowan, 124 N. Y. 526 [26 N. E. 1098]), has no application in such a case. It is, by its terms, limited to general legacies payable out of the corpus of the decedent's estate. In the present case the bequest is not a part of the principal of the estate, or of any property possessed by the testator in his lifetime; but of that which is to arise or accrue after his death from a specified fund to be set apart for that purpose. It is the income which constitutes the respondent's legacy. He is not seeking to charge the estate with interest upon his legacy, but is simply endeavoring to secure the legacy itself and his effort, therefore, involves no infringement of the rule regulating the payment of interest upon general legacies. ' '\\nThe case was cited and approved in Matter of Bird, 241 N. Y. 184 (149 N. E. 827).\\nSome other cases supporting this view are: Martha Catron's Estate, 82 Mo. App. 416; Webb v. Lines, 77 Conn. 51 (58 Atl. 227); Flickwir's Estate, 136 Pa. 374 (20 Atl. 518); Mulcahy v. Johnson, 80 Colo. 499 (252 Pac. 816); Doherty v. Grady, 105 Me. 36 (72 Atl. 869); Ayer v. Ayer, 128 Mass. 575.\\nAffirmed. Costs to appellee.\\nMcDonald, Potter, Sharpe, North, Fead, Wiest, and Bijtzel, JJ., concurred.\"}"

mich/1865745.json

@@ -0,0 +1 @@
+"{\"id\": \"1865745\", \"name\": \"In re SHASSBERGER\", \"name_abbreviation\": \"In re Shassberger\", \"decision_date\": \"1932-01-04\", \"docket_number\": \"Docket No. 229, Calendar No. 35,902\", \"first_page\": \"1\", \"last_page\": \"6\", \"citations\": \"257 Mich. 1\", \"volume\": \"257\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T02:33:34.774431+00:00\", \"provenance\": \"CAP\", \"judges\": \"Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred.\", \"parties\": \"In re SHASSBERGER.\", \"head_matter\": \"In re SHASSBERGER.\\n1. Paupers \\u2014 Dependent Parent \\u2014 Statutes.\\nWoman 84 years of age, practically blind, feeble physically and mentally, and in need of personal attention which she is unable to pay for, and which son cannot give to her in his own home, is dependent person within meaning of statute requiring children to support dependent parents (2 Comp. Laws 1929, \\u00a78226).\\n2. Same \\u2014 Abandonment or Desertion op Child.\\nIn proceedings under 2 Comp. Laws 1929, \\u00a7 8208 et seq., to compel natural son to support dependent mother, evidence on part of son held, insufficient to establish that lie was abandoned or deserted by his mother within meaning of section 8226, releasing him from obligation to support her.\\n3. Same \\u2014 Excessive Amount for Support op Parent.\\nCourt\\u2019s order requiring natural son to pay $10 per week for support of dependent mother, held, not excessive, under circumstances, and especially in view of fact that, if it should become overburdensome, court has power to change order (2 Comp. Laws 1929, \\u00a7 8214).\\n4. Same \\u2014 Appeal and Error-Harmless Error.\\nError in unduly restricting cross-examination of dependent mother on question of her abandonment of, natural son does not require reversal of order requiring him to pay for her support, where from his own testimony it appears that he was not prejudiced by said error.\\nAppeal from Kent; Dunham (Major L.), J.\\nSubmitted November 7, 1931.\\n(Docket No. 229, Calendar No. 35,902.)\\nDecided January 4, 1932.\\nPetition by Asbley Ward, superintendent of poor of Kent county, against Gustav Mayer in the probate court to compel contribution to the support of defendant\\u2019s mother. Prom order for plaintiff, defendant appealed to circuit court. Judgment affirmed. Defendant appeals.\\nAffirmed.\\nBartel J. Jonkman, Prosecuting Attorney, and Albert H. Adams, Assistant Prosecuting Attorney, for plaintiff.\\nFreeman W. Haskins, for defendant.\", \"word_count\": \"1635\", \"char_count\": \"9488\", \"text\": \"North, J.\\nA superintendent of the poor for Kent county petitioned the probate court of said county to require Gustav Mayer, herein called the defendant, to contribute to the support of his mother, Marie Shassberger, as a dependent person within the meaning of Act No. 146, Pub. Acts 1925, being 2 Comp. Laws 1929, \\u00a7 8208 et seq. Prom the order of the probate court requiring him to make weekly contributions towards the support of his mother, the defendant appealed to the circuit court. Upon hearing in the circuit, it was ordered that the defendant pay $10 per week. Defendant has appealed.\\nThe defense mainly urged is that the defendant was abandoned by his mother before he arrived at the age of 16 years, and therefore he is not liable under the statute to contribute towards her support. The defendant also urges that the amount ordered to be paid is excessive. The statute under which this proceeding is brought in part provides:\\n\\\"No person shall be required to furnish a parent with shelter, food, care, and clothing if it .is proven that such parent abandoned, deserted or wilfully refused or neglected to support and maintain him while an infant under sixteen years of age. This act shall he deemed to create a liability as follows:\\n\\\"(a) Sons or daughters shall be liable for the support of their dependent parent or parents to the extent hereinafter mentioned;\\n\\\"(b) A parent shall be deemed to be dependent where, by reason of age, disease, or infirmity, he is unable to maintain himself.\\\" 2 Comp. Laws 1929, \\u00a7 8226.\\nMrs. Shassberger is 84 years of age, practically blind, and feeble physically and mentally. She has a life estate in a residence property which rents for $25 per month. Her condition is such that she needs personal care and attention which defendant has not and for obvious reasons cannot give to her in his own home. Prior to these proceedings she was taken to a public institution for care, but subsequently placed in a private home, where, at the time of the hearing in the circuit court, she was being cared for at an expense of $10 per week. There is no question but that she is a dependent person within the meaning of the statute.\\nTouching defendant's claim of having been abandoned by his mother, the following facts are pertinent: Mrs. Shassberger is a native of Germany. While residing there she lived with a man by the name of Wolf without the formality of a marriage ceremony. Gustav Mayer was born to these parties while so living together. It is the claim of Mrs. Shassberger, and her testimony is not disputed, that because Wolf was a drunkard she was compelled to leave his home. This she did when Gustav was about three years of age. She told Wolf she was leaving for America and he must look after Gustav. Mrs. Shassberger came to this country and shortly after her arrival married Mr. Shassberger. Evi dently they were people of limited means. Notwithstanding this, from time to time Mrs. Shassberger sent money to Germany either to Gnstav or his brother. The amounts were small, but the record does not disclose that Mrs. Shassberger was able to send more. Mr. Shassberger died about 15 or 16 years after his marriage to Mrs. Shassberger. Shortly after his death Mrs. Shassberger sent for Gustav to come to America, and furnished him with the money with which to pay his passage and entrance into this country. He arrived' in Grand Rapids in February, 1909'. He was then nearly 19 years of age. From that time he and his mother lived together in the same household for substantially 20 years, when she was taken in charge by the public authorities. Aside from his mother's contribution, Gustav, while in Germany, was maintained, as he testified, by means derived from his \\\"father's estate.\\\" He and a brother were reared on a farm, and when Gustav was 15 or 16 years of age he began to learn the shoe trade. He was working at his trade when his mother sent for him. Without reciting further details which appear in the record, it is sufficient to note we are of the opinion that defendant has not established his claim of having been abandoned by his mother. Mrs. Shassberger's testimony disclosed that she was justified in severing her relations with the man Wolf. She evidently kept in touch with her children, and, so far as her means permitted, contributed to their maintenance. It is fair to infer as soon-as she was able to do so she provided the means of bringing Gustav to her home in America; and they have continued to live together for years. Abandonment or desertion within the meaning of the statute has not been established.\\nTouching the claim of defendant that the amount ordered by the circuit judge to be paid is excessive, it may be noted that defendant's conduct, when testifying in the circuit court, was not to his credit. His ability to pay, as well as the extent of his mother's needs, were material questions. The lack of frankness and fairness on the part of the defendant is indicated by the following from his testimony:\\n\\\"Q. Haven't you some money put away, money in the bank?\\n\\\"A. Who wants to know? '\\n\\\"Q. Have you Consumers Power stock?\\n\\\"A. Yes, but I don't know how much.\\n\\\"Q. You don't know whether you have 1,000 or 500?\\n\\\"A. I had so much trouble my mind is all mixed up.\\n\\\"Q. Haven't you any other securities ?\\n\\\"A. I am paying insurance; that is all I know.\\n' ' Q. How much insurance have you ?\\n\\\"A. I don't know.\\n\\\"Q. Who receives the benefit of this insurance, who is the beneficiary?\\n\\\"A. I am myself.\\n\\\"Q. You haven't told us what the value of your securities, your stock is, whatever stocks you own?\\n\\\"A. I don't know. I have got to figure that up myself. It would not hurt me to work for somebody else, but I could not find a-job.\\\"\\nDefendant owns the remainder interest in the property in which his mother has a life estate. He also owns other residence property from which .he receives; a monthly, rental of $25 or $30. He is a man in middle age, has a trade, and is able to work, though presently not employed. For months preceding the hearing in the probate court, he had appropriated for his own use the rental income from the property in which his mother has a life estate. He testified the money was used in making improvements on this property in which he has the remainderman's interest.\\nIt is urged in appellant's brief that the amount he has been ordered to pay is in excess of the actual needs of his mother, in view of' the fact that she is now receiving the rentals from the property of which she is the life tenant; and also that the contributions in the amounts ordered will eventually pauperize defendant. \\\"We are not favorably impressed with either of these claims. It is fair to assume that the court making the order had all the facts and circumstances fully in mind, including the statutory provision which empowers the court to subsequently alter the order if found to be overburdensome to the one' required to make the contributions. 2 Comp. Laws 1929, \\u00a7 8214.\\nIt is urged in behalf of appellant that the circuit judge unduly restricted the cross-examination of Mrs. Shassberger touching the circumstances under which she left defendant in Germany, this bearing upon the question of abandonment and desertion. This cross-examination related to a material question in the case; and while it appears to have been somewhat unduly restricted, we are satisfied from defendant's own testimony that it did not result in prejudicial error.\\nThe judgment of the circuit court is affirmed, with costs to appellee.\\nClark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred.\"}"