diff --git a/mich/1173593.json b/mich/1173593.json new file mode 100644 index 0000000000000000000000000000000000000000..5b79676589c47148e85404f7d2112557dc3a669b --- /dev/null +++ b/mich/1173593.json @@ -0,0 +1 @@ +"{\"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,\\\" 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.\"}" \ No newline at end of file diff --git a/mich/1684652.json b/mich/1684652.json new file mode 100644 index 0000000000000000000000000000000000000000..5e2616d30cff0ad30b8533a7b0166de0064fb45b --- /dev/null +++ b/mich/1684652.json @@ -0,0 +1 @@ +"{\"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.\"}" \ No newline at end of file diff --git a/mich/1770601.json b/mich/1770601.json new file mode 100644 index 0000000000000000000000000000000000000000..6c07db139f5829bcfed636db07f255799a8da892 --- /dev/null +++ b/mich/1770601.json @@ -0,0 +1 @@ +"{\"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.\"}" \ No newline at end of file diff --git a/mich/1772650.json b/mich/1772650.json new file mode 100644 index 0000000000000000000000000000000000000000..227c472da16ad267133926e6cbb834b7193e0352 --- /dev/null +++ b/mich/1772650.json @@ -0,0 +1 @@ +"{\"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.\"}" \ No newline at end of file diff --git a/mich/1772734.json b/mich/1772734.json new file mode 100644 index 0000000000000000000000000000000000000000..26f8fae65b2bd8e0c9e8e07467f9834e41e2ae75 --- /dev/null +++ b/mich/1772734.json @@ -0,0 +1 @@ +"{\"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.\"}" \ No newline at end of file diff --git a/mich/1786049.json b/mich/1786049.json new file mode 100644 index 0000000000000000000000000000000000000000..b72011fa22099901f8d4ffbf405e4f9d94656f16 --- /dev/null +++ b/mich/1786049.json @@ -0,0 +1 @@ +"{\"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.\"}" \ No newline at end of file diff --git a/mich/1797819.json b/mich/1797819.json new file mode 100644 index 0000000000000000000000000000000000000000..e7d6d0bbb378c60d55cea3e2f9615844326c731a --- /dev/null +++ b/mich/1797819.json @@ -0,0 +1 @@ +"{\"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.\"}" \ No newline at end of file diff --git a/mich/1800024.json b/mich/1800024.json new file mode 100644 index 0000000000000000000000000000000000000000..cf16466bb6799c4172ac905fc43e7468f32f4dac --- /dev/null +++ b/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.\"}" \ No newline at end of file diff --git a/mich/1819795.json b/mich/1819795.json new file mode 100644 index 0000000000000000000000000000000000000000..6263cf7c7e3670042001f10dc1639e72afbe460f --- /dev/null +++ b/mich/1819795.json @@ -0,0 +1 @@ +"{\"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.\"}" \ No newline at end of file diff --git a/mich/1823390.json b/mich/1823390.json new file mode 100644 index 0000000000000000000000000000000000000000..0a357cab1fd66ac48519216c4222657d2d1d203c --- /dev/null +++ b/mich/1823390.json @@ -0,0 +1 @@ +"{\"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.\"}" \ No newline at end of file diff --git a/mich/1841490.json b/mich/1841490.json new file mode 100644 index 0000000000000000000000000000000000000000..b9704bbe3679bfa56f1eb75a53c4f6af9bf4fe15 --- /dev/null +++ b/mich/1841490.json @@ -0,0 +1 @@ +"{\"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.\"}" \ No newline at end of file diff --git a/mich/1841658.json b/mich/1841658.json new file mode 100644 index 0000000000000000000000000000000000000000..f277bc3fe0055d25d0b0c8fc3bdfc8770459e122 --- /dev/null +++ b/mich/1841658.json @@ -0,0 +1 @@ +"{\"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.\"}" \ No newline at end of file diff --git a/mich/1862488.json b/mich/1862488.json new file mode 100644 index 0000000000000000000000000000000000000000..81a17d55dfe6dc42a06584f01541fc010e6c3ea5 --- /dev/null +++ b/mich/1862488.json @@ -0,0 +1 @@ +"{\"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.\"}" \ No newline at end of file diff --git a/mich/1863866.json b/mich/1863866.json new file mode 100644 index 0000000000000000000000000000000000000000..1153415f5e740919282bc4b33f6a43c0d1060ebe --- /dev/null +++ b/mich/1863866.json @@ -0,0 +1 @@ +"{\"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.\"}" \ No newline at end of file diff --git a/mich/1864807.json b/mich/1864807.json new file mode 100644 index 0000000000000000000000000000000000000000..055a832effa11d6ff859d3d236eb5cab91b5a6c7 --- /dev/null +++ b/mich/1864807.json @@ -0,0 +1 @@ +"{\"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.\"}" \ No newline at end of file diff --git a/mich/1865745.json b/mich/1865745.json new file mode 100644 index 0000000000000000000000000000000000000000..0a5effe89821e38378d5cc0a9b9c08c84059c4a5 --- /dev/null +++ b/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.\"}" \ No newline at end of file diff --git a/mich/1867714.json b/mich/1867714.json new file mode 100644 index 0000000000000000000000000000000000000000..8a8fe025fe8ada54ad3db15387c07f2914a8d362 --- /dev/null +++ b/mich/1867714.json @@ -0,0 +1 @@ +"{\"id\": \"1867714\", \"name\": \"COLLINS v. HULL\", \"name_abbreviation\": \"Collins v. Hull\", \"decision_date\": \"1932-01-04\", \"docket_number\": \"Docket No. 222, Calendar No. 36,014\", \"first_page\": \"507\", \"last_page\": \"511\", \"citations\": \"256 Mich. 507\", \"volume\": \"256\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T17:03:46.691749+00:00\", \"provenance\": \"CAP\", \"judges\": \"McDonald, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred with Butzel, J. Clark, C. J., concurred in the result.\", \"parties\": \"COLLINS v. HULL.\", \"head_matter\": \"COLLINS v. HULL.\\n1. Negligence \\u2014 Emergency\\u2014Degree of Care.\\nOne placed in emergency through no fault of his own is not bound to exercise same degree of care as if emergency did not exist.\\n2. Motor Vehicles \\u2014 Negligence.\\nAutomobile driver who drove at rate of 40 to 45 miles per hour over rough road cut up with ruts, with loose gravel in middle, resulting in ear\\u2019s swerving and striking ear going in opposite direction, was properly found guilty of negligence.\\n3. Husband and Wife \\u2014 Husband Entitled to Wife\\u2019s Services as HOUSEKEEPER' \\u2014 DEATH.\\nHusband is entitled to wife\\u2019s services as housekeeper, and therefore he alone may recover for loss thereof through wrongful killing of wife.\\n4. Death \\u2014 Survival Act \\u2014 Wife\\u2019s Services as Housekeeper\\u2014 Damages.\\nIn administrator\\u2019s action under survival act for wrongful death of wife, testimony as to value of her services as housekeeper should not have been considered in assessing damages, since husband alone may recover therefor.\\n5. Appeal and Error \\u2014 Law Action Tried Without Jury Considered De Novo \\u2014 Damages.\\nWhile Supreme Court, under Michigan Court Hule No. 75, may' consider action for damages tried without jury de novo, it is unwilling to determine correctness of amount of damages without some indication by trial judge as to what amount should be.\\n6. Death \\u2014 Damages\\u2014Pain and Suffering.\\nIn action under survival act, judgment for $4,000 for death of married woman 60 years of age, was justified, where she lived for four days after accident, during which time she was conscious and suffered very great pain.\\nAs to care required in sudden emergency not to injure another person, see annotation in 37 L. R. A. (N. S.) 60.\\nAppeal from Kent; Brown (William B.), J.\\nSubmitted October 23, 1931.\\n(Docket No. 222, Calendar No. 36,014.)\\nDecided January 4, 1932.\\nCase by William H. Collins, administrator of the estate of Alma Collins, deceased, under the survival act, against Ivan E. Hull for personal injuries resulting in the death of plaintiff\\u2019s decedent. Judgment for plaintiff. Defendant appeals.\\nAffirmed.\\nWilliam J. Branstrom, for plaintiff.\\nRodgers & Dunn, for defendant.\", \"word_count\": \"1499\", \"char_count\": \"8676\", \"text\": \"Butzel, J.\\nPlaintiff, William H. Collins, sues as administrator of the estate of Alma Collins, his wife, whose death resulted from injuries sustained by her in a collision between a Buick car driven by defendant, Ivan E. Hull, and a Whippet car driven by Collins, and in which decedent was riding. At about 2:30 on July 13, 1930, Collins, accompanied by decedent and others, was driving carefully in a westerly direction along, the north side of M-44, a very rough and pitted road with loose gravel scraped together by gravel trucks, in the center. Defendant was driving in an easterly direction along the south side of the road at a rate of about 40 to 50 miles per hour, but keeping towards the center. Defendant claims that when about 200 feet from the Collins car, and while driving down from a knoll, he lost control of the steering gear of his car, which turned slightly towards the north side of the road. Defendant failed to apply his brakes or slacken his speed, and his car hit the left front wheel and fender and scraped the side of the Collins car with such force that the Collins car was turned over on its right side and the Hull car, after proceeding a rod further, went into a ditch. Decedent was thrown out of the car and sustained severe and painful injuries, from which she died four days later.\\nDefendant attributes the accident to the fact that there were ruts in the road and a pile of loose gravel in the center, and that notwithstanding his efforts to avoid a rut, he struck one while slightly turning his wheel. He claims that as a result, the car turned to the northeast, and that when he reached for the brake and clutch, his right knee struck against the ignition lever and the key locking the steering* apparatus, with such force, so as to injure and cut his knee in two places; that in some inexplicable manner the ignition lever broke off and fell to the floor, and the key was half turned and bent, locking the steering rod so that he could not turn the wheel or steer the car. He further claims that, owing* to his confusion in the emergency that arose, he failed to apply his brakes although they were in good condition; he admits that it. was probably true, as stated by another witness, that he could have stopped the car within a distance of 50 feet from the Collins car. Had he applied his brakes and stopped the car, or even reduced its speed, the force of the impact would have been very much lessened. The mechanic who examined defendant's car after the accident testified that he found the ignition lever broken off and the key turned in the lock. The local Buick dealer testified that it was physically impossible for the lever to be broken, the key turned, and defendant's knee hurt in the manner described, and that the collision itself caused all the damage. We are impressed on reading the record, including the testimony of defendant's own witness, that the damage was caused by the collision. The trial judge, however, found liability because defendant made no effort to apply his brakes and bring the car to a standstill. One placed in an emergency through no fault of his own is not bound to exercise the same degree of care as if the emergency did not exist. Myler v. Bentley, 226 Mich. 384 (23 N. C. C. A. 859). When, however, one drives at a rate of 40 to 45 miles per hour over a rough and pitted road cut up with ruts, and with loose gravel in the center, and strikes some uneven rut that causes his car to swerve, he is not without fault, nor is he driving in the manner that a careful and prudent driver would under like conditions. Defendant's negligence in this regard was the first link in the causal chain that led to the accident. The record overwhelmingly supports the finding of the trial court that the defendant was guilty of negligence. The court assessed the damages at $4,000.\\nTestimony was admitted showing that decedent was a housewife, living with her husband; that she was 60 years of age, and that the prevailing wage of housekeepers was from $7 to $10 a week. The suit was brought under the survival act (3 Comp. Laws 1929, \\u00a7 14040 et seq.). Decedent's husband was entitled to her services as a housekeeper, and he alone can recover for them. McCauley v. Railway, 167 Mich. 297. The testimony in regard to decedent's services as housekeeper should not have been taken into consideration in assessing damages in the present case. However, the trial judge, who tried the case without a jury, stated in rendering judgment:\\n\\\"I think myself that the question of earnings in this case would be highly speculative and problematical. ' '\\nHe should have said that it would not be considered at all. In rendering judgment, he further said:\\n_ \\\"Without further comment on the subject, I will simply say that under all the circumstances in the case, including pain and suffering, and. whatever earnings have been in contemplation, I will render a judgment for the plaintiff] in the sum of $4,000.\\\"\\nThe amount of the judgment reflects the fact that the trial judge gave but little, if any, consideration to the earnings in contemplation, but, if he did, a judgment for $4,000 exclusively for pain and suffering, was fully justified. While, under Michigan Court Buie No. 75, we may consider the case de novo, we are unwilling to determine the correctness of the amount of damages without some indication by the trial judge who has heard all of the testimony and seen the witnesses, of what the amount should be. We are impressed by the record, however, that $4,000 is a fair amount in the present case. Decedent lived four days, during which she was conscious' and suffered very great pain. While the monetary compensation can not be measured with any degree of certainty, nevertheless, plaintiff is entitled to a substantial amount for the pain and suffering-endured by decedent. Oakes v. Van Zomeren, 255 Mich. 372. We have affirmed judgments for larger amounts in cases of infants who only survived a few hours after receiving fatal injuries. Swaczyk v. Detroit Edison Co., 207 Mich. 494; Ignaszak v. McRay Refrigerator Co., 221 Mich. 10; Love v. Railroad Co., 170 Mich. 1, 8; Mulvihill v. Railway, 231 Mich. 123. In Stone v. Sinclair Refining Co., 230 Mich. 472, we affirmed a judgment for $4,000 exclusively for pain and suffering in the case of a married woman who lived only four hours after the accident.\\nThe judgment of the lower court is affirmed, with costs.\\nMcDonald, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred with Butzel, J. Clark, C. J., concurred in the result.\"}" \ No newline at end of file diff --git a/mich/1880570.json b/mich/1880570.json new file mode 100644 index 0000000000000000000000000000000000000000..0a27e03963a4f41b0f9420d2d752eef58063c15c --- /dev/null +++ b/mich/1880570.json @@ -0,0 +1 @@ +"{\"id\": \"1880570\", \"name\": \"MANUFACTURERS' FINANCE CORP. v. ESTATE OF ANDARY\", \"name_abbreviation\": \"Manufacturers' Finance Corp. v. Estate of Andary\", \"decision_date\": \"1934-10-01\", \"docket_number\": \"Docket No. 13; Calendar No. 37,555\", \"first_page\": \"1\", \"last_page\": \"6\", \"citations\": \"269 Mich. 1\", \"volume\": \"269\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T02:33:51.116902+00:00\", \"provenance\": \"CAP\", \"judges\": \"Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, and Edward M. Sharpe, JJ., concurred. Btjtzel, J., did not sit.\", \"parties\": \"MANUFACTURERS\\u2019 FINANCE CORP. v. ESTATE OF ANDARY.\", \"head_matter\": \"MANUFACTURERS\\u2019 FINANCE CORP. v. ESTATE OF ANDARY.\\n1. Bills and Notes\\u2014Trade Acceptances\\u2014Holder in Due Course.\\nHolder of trade acceptances whieh are negotiable instruments is deemed prvma facie to be a holder in due course (2 Comp. Laws 1929, \\u00a7 9308).\\n2. Same\\u2014Trade Acceptances\\u2014Contemporaneous Agreement.\\nTrade acceptances executed and delivered contemporaneously with sales agreement, in effect a chattel mortgage, held, negotiable instruments.\\n3. Same\\u2014Trade Acceptances\\u2014Good Faith\\u2014Presumptions.\\nUnsupported claims of bad faith held, insufficient to overcome statutory presumption that purchaser of trade acceptances for value before maturity purchased same in good faith without knowledge of claimed defenses thereto and was a holder in due course (2 Comp. Laws 1929, \\u00a7 9308).\\n4. Same\\u2014Breach of Warranty\\u2014Defense\\u2014Holder in Due Course.\\nIn suit by holder in due course of trade acceptances mere knowledge of assignor\\u2019s warranty as to talking movie machine for which acceptances were given, is not equivalent to knowledge and notice of fraud in the warranty or breach of it which may be set up as a defense or furnish basis for action against plaintiff by acceptor (2 Comp. Laws 1929, \\u00a7\\u00a7 9306, 9308).\\n5. Executors and Administrators \\u2014 Contracts \\u2014 Personal Liability.\\nExecutrix\\u2019s use of her official title in making contract does not avoid her personal liability thereon in absence of stipulation exempting her in ease her authority to act for the estate is found lacking.\\n6. Corporations\\u2014Foreign-\\u2014Admission to do Business\\u2014Actions.\\nRecovery from acceptor by holder in due course of trade acceptances is not precluded by fact that neither it nor its assignor, both foreign corporations, had not been admitted to do business in the State (Comp. Laws 1929, \\u00a7\\u00a7 10118, 10120, 14027).\\nAppeal from Chippewa; Runnels (Herbert W.), J.\\nSubmitted June 13, 1934.\\n(Docket No. 13, Calendar No. 37,555.)\\nDecided October 1, 1934.\\nAssumpsit by Manufacturers\\u2019 Finance Corporation, a New York corporation, against the Estate of J. M. Andary, Mary Andary, as executrix thereof and individually, on trade acceptances. Cross-declaration for breach of alleged warranties. Judgment for defendants on cross-declaration. Plaintiff appeals.\\nReversed.\\nHudson & Coates, Buteel, Levin <& Winston (Carl L. Whitchurch and A. J. Levin, of counsel), for plaintiff.\\nF. T. McDonald, for defendants.\", \"word_count\": \"1456\", \"char_count\": \"8955\", \"text\": \"Bushnell, J.\\nPlaintiff, a New York corporation, submitted this action against defendants, on 39 trade acceptances totaling $1,462.50, to trial without a jury. It claimed to have purchased the paper for value before maturity from Biophone Corporation, a New Jersey corporation, without any notice of adverse claims. Neither company was admitted to do business in Michigan.\\nDefendant executrix admitted the operation of the Colonial Theatre in the city of Sault' Ste. Marie by the estate; the purchase of a talking moving picture machine, and the execution of the papers involved; but averred that she was not lawfully authorized to bind the estate. The good faith purchase of the trade acceptances by plaintiff is denied. It was claimed that both the equipment and its installation were imperfect and the apparatus was not a \\\"first quality and pure tone talking movie machine\\\" as represented by seller's agents.\\nTestimony was taken before the court without a jury and the cause submitted on February 29, 1932. Almost a year and a half later, over plaintiff's formal objection, the court permitted defendants to amend the pleadings by adding a cross-declaration, claiming damages because of seller's breach of express and implied warranties. Several months later a judgment was entered for defendants in the sum of $5,000, with nothing to plaintiff, which appeals.\\nThe estate paid $1,000 at the time it purchased the machine, and thereafter made 65 weekly payments of $37.50 each, it being sharply disputed whether failure to make the 39 other weekly payments was due to dissatisfaction with the performance of the equipment or inability to secure a credit on its indebtedness, the seller having in the meantime placed on the market an improved machine at a lower price.\\nAmong the exhibits are the acceptances, reciting the purchase of goods by the acceptor; the license agreement, the hybrid nature of which is recognized in seller's assignment, in which it is described as a ' ' conditional sale contract/lease/chattel mortgage; ' ' the guaranty by seller of the acceptances, therein designated as \\\"notes;\\\" and various correspondence between defendants and the seller, but nothing indicating any dealings between the parties to this controversy, prior to suit. The assignment covering the acceptances, the first of which matured June 3, 1929, is dated April 23, 1929. Defendants' last payment was made to seller on April 27, 1929. The correspondence indicates faulty operation of certain parts of the apparatus, ancl shows unsuccessful attempts to secure a reduction from the purchase price. Nowhere is there any intimation of a transfer of title to the notes. Defendants were apparently unaware of the transfer, because seller was informed that a trade acceptance was protested and the letter of defendants added:\\n\\\"And we will protest all others until we get the adjustment that is rightfully ours.\\\"\\nThe first theatrical production of sound pictures was late in 1928. At the time of installation of the machine in question, January, 1929, the industry was in an experimental stage; trained operators were few and producers had not yet been able to turn out high quality records. Whatever may have been the reasons for the unsatisfactory performance in defendants' theatre, the case presents questions of law upon which the entire controversy may be determined.\\nIf the' trade acceptances are negotiable instruments, plaintiff is deemed prima facie to be a holder in due course. 2 Comp. Laws 1929, \\u00a7 9308. We held in Federal Commercial & Savings Bank v. International Clay Machinery Co., 230 Mich. 33 (43 A. L. R. 1245), that similar trade acceptances were negotiable instruments and this is true notwithstanding their execution and delivery contemporaneously with a sales agreement which was in effect a chattel mortgage. Northwestern Finance Co. v. Crouch, 258 Mich. 411.\\nWe have searched the record for testimony tending to overcome the statutory presumption and all we find is that plaintiff examined the license agreement prior to the purchase of the paper-, but there is no showing of any knowledge of defendants' claim, nor is there anything in the contract by which plaintiff may have been put on notice.\\nUnsupported claims of bad faith are not sufficient. Courts require competent evidence of a preponderating nature for the determination of litigated disputes.\\n\\\"Where the testimony of plaintiff's bona fides is undisputed, it is the duty of the court to so charge the jury; and that question should not be submitted to them.\\\" Van Slyke v. Rooks, 181 Mich. 88.\\n\\\"A holder in due course holds the instrument free from any defect of title of prior parties and free from defenses available to prior parties among themselves, and may enforce payment of the instrument for the full amount thereof against all parties liable thereon.\\\" 2 Comp. Laws, 1929, \\u00a7 9306.\\nWe held in East Lansing State Bank v. Keil, 213 Mich. 17, that mere knowledge and notice of a warranty are not equivalent to knowledge and notice of fraud in the warranty \\u2022 or breach of same. Such breach could not be set up as a defense in a suit by the purchaser. Miller v. Ottaway, 81 Mich. 196 (8 L. R. A. 428, 21 Am. St. Rep. 513). Neither does such a breach give rise to an action against a good-faith holder who has no knowledge of the breach of warranty. See Hakes v. Thayer, 165 Mich. 476, 487; National Bank of Commerce of Detroit v. B. W. Marr & Co., 254 Mich. 333, and Lincoln Investment Co. v. Metros, 257 Mich. 215.\\nMere use of an official title does not avoid personal liability in the absence of an express stipulation of such exemption in the event of lack of the trustee's authority to bind cestuis que trustent. Feldman v. Preston, 194 Mich. 352; Chappus v. Lucke, 246 Mich. 272, and Marshall Field & Co. v. Himelstein, 253 Mich. 355.\\nWithout further discussion of the facts, we hold that neither plaintiff nor its assignor were doing business in Michigan and, therefore, 2 Comp. Laws 1929, \\u00a7 10118, 10120, and 3 Comp. Laws 1929, \\u00a7 14027, are not applicable in the instant case. See Cleveland Cooperage Co. v. Detroit Milling Co., 235 Mich. 57, 60.\\nThe seller, Biophone Corporation, was not a party to the action. The buyer's claim, if any, was against the seller and the issues raised by the cross-declaration could not be tried in the instant case.\\nThe judgment heretofore entered is reversed. The cause is remanded to the trial court for entry of a judgment for plaintiff. Costs to appellant.\\nNelson Sharpe, C. J., and Potter, North, Fead, Wiest, and Edward M. Sharpe, JJ., concurred. Btjtzel, J., did not sit.\"}" \ No newline at end of file diff --git a/mich/1909879.json b/mich/1909879.json new file mode 100644 index 0000000000000000000000000000000000000000..36506f58782a7fc68f3d41ca0b7027d88f29a6e0 --- /dev/null +++ b/mich/1909879.json @@ -0,0 +1 @@ +"{\"id\": \"1909879\", \"name\": \"PEOPLE v. HERBERT VAN SMITH, JR.\", \"name_abbreviation\": \"People v. Van Smith\", \"decision_date\": \"1972-10-31\", \"docket_number\": \"No. 2; Docket No. 53,284-1/2\", \"first_page\": \"457\", \"last_page\": \"463\", \"citations\": \"388 Mich. 457\", \"volume\": \"388\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T00:56:13.137781+00:00\", \"provenance\": \"CAP\", \"judges\": \"Swainson, J., concurred with T. G. Kavanagh, J.\", \"parties\": \"PEOPLE v HERBERT VAN SMITH, JR.\", \"head_matter\": \"PEOPLE v HERBERT VAN SMITH, JR.\\nOpinion op the Court\\n1. Criminal Law \\u2014 Instructions\\u2014Lesser Included Offenses.\\nThe law is well established that where a request to instruct the jury has been made the duty of the trial judge is determined by the evidence; if the record contains evidence which would support a conviction of a lesser included offense it is reversible error to refuse to give it.\\n2. Burglary \\u2014 Instructions\\u2014Lesser Included Offenses.\\nA verdict of guilty of the charge of entry without breaking with intent to commit a larceny, or entry without the owner\\u2019s permission, would have been clearly sustainable where defendant was charged with breaking and entering a business place with intent to commit larceny, defendant testified that he entered the building without breaking in order to get his companion to leave and, at the time of defendant\\u2019s apprehension, miscellaneous papers and the plant manager\\u2019s bank book were on his person and hence it was error to refuse defendant\\u2019s request for instructions to that effect (MCLA 750.110, 750.111, 750.115).\\n3. Criminal Law \\u2014 Instructions\\u2014Statutes\\u2014Court Rules.\\nNeither in a statute, a section of The Code of Criminal Procedure, nor the applicable court rule is the time for requests for jury instructions prescribed; the statute simply charges the court with the responsibility of instructing the jury and the court rule provides that written requests should be made at or before the close of evidence, but neither forecloses oral requests nor limits the time for making them (MCLA 768.29; GCR 1963, 516).\\nReferences for Points in Headnotes\\n53 Am Jur, Trial \\u00a7 800.\\n13 Am Jur 2d, Burglary \\u00a7 69.\\n53 Am Jur, Trial \\u00a7 536.\\n53 Am Jur, Trial \\u00a7 827.\\n21 Am Jur 2d, Criminal Law \\u00a7 218.\\n4. Trial \\u2014 Instructions\\u2014Objection\\u2014Preserving Question \\u2014 Court Rules.\\nThat part of the court rule concerning jury instructions which touches objections precludes assigning as error the giving or failing to give an instruction only if the objection is not made before the jury retires to consider its verdict (GCR 1963, 516.2).\\n5. Criminal Law \\u2014 Instructions\\u2014Lesser Included Offenses \\u2014 Objection.\\nFormal objection to failure to give requested instructions on lesser included offenses was not necessary where the request for instructions was made before the jury began its deliberations.\\n6. Criminal Law \\u2014 Lesser Included Offenses \\u2014 Instructions\\u2014 Waiver.\\nThe court\\u2019s obligation to instruct the jury on the applicable law gives rise to a right in the jury to be properly instructed whether requested by counsel or not, and whether or not any request be in writing; when the evidence would support a conviction on lesser included offenses the court\\u2019s failure to instruct thereon can neither be excused nor waived by the parties (MCLA 768.29; GCR 1963, 516).\\nDissenting Opinion\\nT. E. Brennan\\n7. Criminal Law \\u2014 Instructions\\u2014Lesser Included Offenses.\\nA criminal trial is concerned with the rights of the defendant; if the defendant for tactical or other reasons chooses to permit the case to go to the jury on the principal charged offense without mention of lesser included offenses, that, too, is bis right.\\nAppeal from Court of Appeals, Division 1, Lesinski, C. J., and Bronson and Engel, JJ., affirming Recorder\\u2019s Court of Detroit, Joseph A. Gillis, J.\\nSubmitted April 4, 1972.\\n(No. 2\\nApril Term 1972,\\nDocket No. 53,284-1/2.)\\nDecided October 31, 1972.\\n30 Mich App 384 reversed.\\nHerbert Van Smith, Jr., was convicted of break ing and entering a business place with intent to commit larceny. Defendant appealed to the Court of Appeals.\\nAffirmed. Defendant appeals. Reversed and remanded for new trial.\\nFrank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Gerard A. Poehlman, Assistant Prosecuting Attorney, for the people.\\nMartin I. Reisig, Assistant Defender, for defendant on appeal.\", \"word_count\": \"1653\", \"char_count\": \"9876\", \"text\": \"T. G. Kavanagh, J.\\nThe def\\u00e9ndant was convicted by a jury in Detroit's Recorder's Court of breaking and entering a business place with intent to commit larceny.\\n. His appeal to the Court of Appeals and to this Court raises the question of the propriety of the trial court's refusal to instruct the jury on the lesser included offenses of entering without breaking with intent to commit larceny and entering without breaking without permission.\\u00ae\\nIn its opinion affirming the conviction, the Court of Appeals noted the trial court's error in failing to recognize entry without breaking and entry without permission as lesser offenses included in the principal charge, but excused his refusal to instruct on them on the ground that the request was not made before the judge commenced his charge to the jury and hence was not timely.\\nWe hold that such interpretation of GCR 1963, 516 is unwarranted and erroneous and that the requested charge should have been given.\\nThere is no question here, as there was in People v Wynn, 386 Mich 627 (1972), whether there was in fact a request to charge. The following colloquy took place immediately after the court instructed the jury:\\n\\\"The Court:\\n\\\"Now you will retire to the jury room and enter into full discussion of the case. Do not begin your deliberations as there may be further instructions. I'll instruct you when to begin your deliberations.\\n\\\"You may retire to the jury room.\\n\\u2666 # *\\n\\\"The Court: Are the People satisfied with the instructions?\\n\\\"Mr. La Bret [assistant prosecuting attorney]: Yes, your Honor.\\n\\\"Mr. Fink [attorney for defendant]: Your Honor, what about lesser and included offenses involved in this?\\n\\\"The Court: Well, what would there be?\\n\\\"Mr. La Bret: Entering without breaking. Is that an included offense?\\n\\\"The Court: He said he wasn't going to steal anything so there's no lesser offense that I can see.\\n\\\"What lesser offense would there be? He wasn't committing any crime at all according to him.\\n\\\"Mr. Fink: Entering without owner's permission.\\n\\n\\\"The Court: Well, I'll deny it. There was no request prior to this.\\n\\\"Anything else?\\n\\n\\\"The Court: All right. Open the jury room door.\\n\\\"There are no further instructions. You may begin your deliberations.\\\"\\nThis was a request to charge, made before the jury began deliberations, which was denied by the court.\\nThe trial court's responsibility for instructing the jury as contained in MCLA 768.29; MSA 28.1052 is:\\n\\\"The court shall instruct the jury as to the law applicable to the case . The failure of the court to instruct oh any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused.\\\"\\nThe law is well established that where a request has been made the duty of the trial judge is determined by the evidence. If the record contains evidence which would support a conviction of a lesser included offense it is reversible error to refuse to give it. People v Jones, 273 Mich 430 (1935).\\nIn the case before us the record contains the defendant's testimony that he entered the building without breaking in order to get his companion to leave. Miscellaneous papers and the plant manager's bank book were on his person at the time of his apprehension.\\nUnder these circumstances a jury verdict of guilty to the charge of entry without breaking with intent to commit a larceny, or entry without the owner's permission would have been clearly sustainable and hence it was error to refuse his request for instruction to that effect.\\nThe Court of Appeals held that the request was not timely made because it was not made before the instruction to the jury was begun.\\nNeither in the statute nor the applicable court rule, GCR 1963, 516 is the time for such request prescribed. The statute, MCLA 768.29 quoted above, simply charges the court with the responsibility for instructing the jury. The court rule provides that written requests should be made at or before the close of evidence, but neither forecloses oral requests nor limits the time for making them.\\nThat part of the rule (516.2) which touches objections, precludes assigning as error the giving or failing to give an instruction only if the objection is not made before the jury retires to consider its verdict. Here the request was made before the jury began its deliberations, and although no formal objection was made we hold it was not necessary. See People v Shirk, 383 Mich 180, 193 (1970).\\nIn People v Wynn, supra, where a majority of this Court found that no request had in fact been made, there was dicta to the effect that a request for instruction had to be in writing under GCR 1963. We now hold that the court's obligation to instruct the jury on the applicable law gives rise to a right in the jury to be properly instructed whether requested by counsel or not, and whether or not any request be in writing. When the evidence would support a conviction on lesser included offenses the court's failure to instruct thereon can neither be excused nor waived by the parties.\\nReversed and remanded for new trial.\\nSwainson, J., concurred with T. G. Kavanagh, J.\\nT. M. Kavanagh, C. J., and Adams and Williams, JJ., concurred in the result.\\nMCLA 750.110; MSA 28.305.\\nMCLA 750.111; MSA 28.306.\\nMCLA 750.115; MSA 28.310.\\n30 Mich App 384 (1971).\"}" \ No newline at end of file diff --git a/mich/1922780.json b/mich/1922780.json new file mode 100644 index 0000000000000000000000000000000000000000..ad8f0537038bec599931bf31527ab01ed4afc5ac --- /dev/null +++ b/mich/1922780.json @@ -0,0 +1 @@ +"{\"id\": \"1922780\", \"name\": \"PEOPLE v. SANFORD; PEOPLE v. GARDNER\", \"name_abbreviation\": \"People v. Sanford\", \"decision_date\": \"1978-04-17\", \"docket_number\": \"Docket No. 57633\", \"first_page\": \"460\", \"last_page\": \"500\", \"citations\": \"402 Mich. 460\", \"volume\": \"402\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T21:53:51.485862+00:00\", \"provenance\": \"CAP\", \"judges\": \"Coleman and Blair Moody, Jr., JJ., concurred with Williams, J.\", \"parties\": \"PEOPLE v SANFORD PEOPLE v GARDNER\", \"head_matter\": \"PEOPLE v SANFORD PEOPLE v GARDNER\\nDocket No. 57633.\\nArgued May 3, 1977\\n(Calendar No. 4).\\nDecided April 17, 1978.\\nDwight Sanford and Reginald L. Gardner were convicted by a jury in Recorder\\u2019s Court of Detroit, Robert L. Evans, J., of assault with intent to rob being unarmed. This appeal concerns issues of the prosecutor\\u2019s discretion in choosing what crime to charge, the admissibility of evidence, and the instructions to the jury. Defendants claim that to allow the prosecutor to charge either the crime charged in the instant case, assault with intent to rob unarmed, with a maximum sentence of 15 years imprisonment, or attempted robbery unarmed, with a maximum sentence of 5 years, deprives the accused of due process of law and the equal protection of the laws, and subjects him to cruel and unusual punishment. The complainant and a police officer testified, over objection, to circumstances of the complainant\\u2019s identification of the defendants. Defendants objected to instructions given to the jury on the reliability of identification by witnesses, which were not identical to the ones they requested. The trial court failed to instruct the jury, other than during their orientation, that the verdict must be unanimous, but the defendants neither requested such an instruction nor objected to the failure to give it, and all jurors acknowledged their verdict of guilty. The Court of Appeals, Bronson, P.J., and V. J. Brennan and D. E. Holbrook, Jr., JJ., affirmed (Docket Nos. 21030, 21149). Defendants appeal. Held:\\nReferences for Points in Headnotes\\n[1, 2] 6 Am Jur 2d, Assault and Battery \\u00a7\\u00a7 10, 108.\\n67 Am Jur 2d, Robbery \\u00a7 79 et seq.\\nAttempt to commit assault as criminal offense. 79 ALR2d 597.\\n[3] 6 Am Jur 2d, Assault and Battery \\u00a7 4.\\n[4] 6 Am Jur 2d, Assault and Battery \\u00a7\\u00a7 2, 3.\\n[5] 75 Am Jur 2d, Trial \\u00a7 884.\\n76 Am Jur 2d, Trial \\u00a7 112 et seq.\\n[6] 75 Am Jur 2d, Trial \\u00a7\\u00a7 576, 854-860.\\n[7-15] 29 Am Jur 2d, Evidence \\u00a7\\u00a7 367-373.\\nAccused: extrajudicial or pretrial identification of accused, admissibility of evidence as to. 71 ALR2d 449.\\n[9] 29 Am Jur 2d, Evidence \\u00a7\\u00a7 493, 497.\\n[10-12] 29 Am Jur 2d, Evidence \\u00a7 373.\\n[14,15] 29 Am Jur 2d, Evidence \\u00a7\\u00a7 372, 373.\\nThe convictions are affirmed.\\nJustice Williams, with Justices Coleman and Blair Moody, Jr., concurring, wrote:\\n1. Attempted robbery unarmed may be committed by simply putting a person in fear; but assault with intent to rob unarmed requires an assault with force and violence. Therefore the offenses are different and the prosecutor\\u2019s discretion to charge under either statute is not unconstitutional. The Court of Appeals erred, however, in stating that the victim must be put in reasonable fear of immediate harm as an element of the crime of assault. A criminal assault may be made upon a person even though he has no knowledge of the fact at the time. A simple criminal assault is either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery.\\n2. Defendants received a fair trial even though the trial court did not instruct the jury on the requirement of a unanimous verdict because the jury had been substantially instructed on this requirement in their orientation and there was actually a unanimous verdict.\\n3. The defendants had requested a detailed cautionary instruction to the jury on the reliability and credibility of testimony concerning identification. The cautionary instruction given by the trial judge was substantially the one requested by defense counsel. Taking the charge to the jury as a whole, there was no prejudice to the defendants by the judge\\u2019s failure to give the exact instruction requested.\\n4. Testimony of the police officer and the complainant on the circumstances surrounding the complainant\\u2019s identification of the defendants prior to their arrest is not objectionable as hearsay. The officer did not testify as to the truth of the complainant\\u2019s identification of the defendants but to the fact that the identification was made and the circumstances surrounding it. It is within the discretion of the trial court to admit into evidence testimony limited to the circumstances surrounding an identification of the defendant by a complainant, even though there is danger in the use of prior consistent statements in relation to identification issues.\\n5. The identification in the instant case was not arranged by the police but initiated by the complaining witness who saw the defendants in a store the day after he was assaulted and called the police. There is no claim that the identification was unfair or biased, or was a denial of the defendants\\u2019 constitutional rights. The testimony of the police officer was limited to the circumstances of that identification procedure, and the trial judge did not admit into evidence the identification procedure used at the preliminary examination. Therefore, the trial judge did not abuse his discretion in admitting prior consistent testimony about identification of the defendants.\\nJustice Ryan, joined by Justice Fitzgerald, concurring, wrote separately that under the case law at the time of trial the police officer\\u2019s testimony concerning the actual identification of defendants by the complaining witness was inadmissible hearsay. The officer\\u2019s testimony consisted of a repetition of the witness\\u2019s words and a description of his assertive conduct when identifying the defendants which goes beyond the testimony of the circumstances surrounding an identification which was permitted under former case law. However, the testimony did not unfairly prejudice these defendants because the complaining witness and the police officer were both available at trial for cross-examination which could expose any unfairness in the setting, any hesitancy in the identification, and any inconsistency in the testimony of the complaining witness and the police officer. Furthermore, this testimony would now be admissible under the Michigan Rules of Evidence if a new trial were granted. Therefore, the error does not warrant reversal of the defendants\\u2019 convictions.\\nChief Justice Kavanagh and Justice Levin, concurring, agreed that attempted robbery and assault with intent to rob are distinct offenses. The recently adopted rule of evidence, MRE 801(d)(1), permits the introduction of a witness\\u2019s prior statement of identification where the prior identification occurred at a time and in circumstances that make that identification more probative than in-court identification. In the instant case the police did not arrange the confrontation. It occurred by chance the day after the offense. It is clear that the victim\\u2019s identification of the defendants was free of the taint of suggestive circumstances. The rule of evidence was not designed to permit testimony by persons other than the identifying witness; the question whether other persons may testify regarding a prior identification and, if so, under what circumstances, raises issues under the Confrontation Clause and has been the subject of considerable discussion. Whether the police officer\\u2019s testi mony concerning that identification was properly admitted into evidence is not addressed because the error, if any, was harmless beyond a reasonable doubt.\\nThe judgment of the Court of Appeals is affirmed.\\n65 Mich App 101; 237 NW2d 201 (1975) affirmed in part.\\nOpinion of the Court\\n1. Indictment and Information \\u2014 Robbery\\u2014Attempt\\u2014Assault With Intent to Rob.\\nAssault with intent to rob being unarmed and attempted robbery unarmed are different offenses; therefore, the discretion in a prosecuting attorney to charge a defendant under either of two statutes, assault with intent to rob being unarmed or attempted robbery unarmed, does not deprive the accused of due process of law and the equal protection of the laws, or subject him to cruel and unusual punishment, even though the statutes prescribe a maximum sentence of 15 years imprisonment for the former offense and 5 years for the latter (MCL 750.88, 750.92, 750.530; MSA 28.283, 28.287, 28.798).\\n2. Robbery \\u2014 Attempt\\u2014Assault With Intent to Rob \\u2014 Elements of Crime.\\nAttempted robbery unarmed may be committed by simply putting a person in fear; but assault with intent to rob unarmed requires an assault with force and violence (MCL 750.88, 750.92, 750.530; MSA 28.283, 28.287, 28.798).\\n3. Assault \\u2014 Elements of Crime.\\nThe crime of assault does not necessarily include, as an element, a requirement that the victim be put in reasonable fear of immediate harm (MCL 750.81; MSA 28.276).\\n4. Assault \\u2014 Words and Phrases.\\nA simple criminal assault is either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery (MCL 750.81; MSA 28.276).\\n5. Criminal Law \\u2014 Instructions to Jury \\u2014 Unanimous Verdict.\\nA defendant received a fair trial, even though the trial court did not instruct the jury on the requirement of a unanimous verdict, where the jury was substantially instructed on the requirement during their orientation and there was in fact a unanimous verdict.\\n6. Criminal Law \\u2014 Instructions to Jury \\u2014 Witnesses\\u2014Credibility\\u2014 Identification.\\nThere was no prejudice to a defendant in a trial court\\u2019s failure to give a detailed cautionary instruction to the jury on the reliability or credibility of testimony concerning identification exactly as requested where the cautionary instruction given by the trial judge, taken as a whole, was substantially the one requested by defense counsel.\\n7. Criminal Law \\u2014 Evidence\\u2014Admissibility\\u2014Hearsay\\u2014Identification \\u2014 Circumstances.\\nTestimony of a third party limited to the circumstances surrounding an out-of-court identi\\u00f1cation of a defendant by the complaining witness is not hearsay and may be admitted into evidence, in the discretion of the trial court, subject to such considerations as whether the identi\\u00f1cation procedures were unfair, biased, or a violation of the constitutional rights of the accused.\\n8. Criminal Law \\u2014 Evidence\\u2014Admissibility\\u2014Identification\\u2014Circumstances \\u2014 Prior Consistent Statement.\\nAdmission of testimony limited to the circumstances surrounding an identi\\u00f1cation of the defendant by a complainant is within the discretion of the trial court, even though there is danger in the use of prior consistent statements in relation to identi\\u00f1cation issues.\\n9. Criminal Law \\u2014 Evidence\\u2014Admissibility\\u2014Hearsay\\u2014Words and Phrases.\\nHearsay is a statement, other than one made by the declarant at a trial or hearing, offered in evidence to prove the truth of the matter asserted; therefore, testimony of a police officer, which was offered to show that he had seen the circumstances of an out-of-court identi\\u00f1cation of a defendant by a complainant and not to prove the truth of the identi\\u00f1cation, was not hearsay.\\n10. Criminal Law \\u2014 Evidence\\u2014Admissibility\\u2014Identification\\u2014 Prior Consistent Statement.\\nTestimony by a police officer who was present at an out-of-court identi\\u00f1cation of defendants by the complainant, which was not arranged by the police but initiated by the complainant who saw the defendants in a store the day after he was assaulted and called the police, was properly admitted in a trial for assault in the court\\u2019s discretion where there is no claim that the identi\\u00f1cation was unfair, biased, or a denial of the defendants\\u2019 constitutional rights, the testimony was limited to the circumstances of the identi\\u00f1cation procedure, and the testimony of the identi\\u00f1cation procedure used at the preliminary examination was not admitted.\\nConcurring Opinion by Ryan, J.\\nFitzgerald, J.\\n11. Criminal Law \\u2014 Evidence\\u2014Admissibility\\u2014Hearsay\\u2014Identification \\u2014 Circumstances.\\nThe testimony of a third party concerning an extrajudicial identi\\u00f1cation of a defendant by the complaining witness was admissible under former case law only insofar as such testimony was offered to prove the circumstances surrounding the identi\\u00f1cation, providing the circumstances had independent relevance to the issues in the case.\\n12. Criminal Law \\u2014 Evidence\\u2014Admissibility\\u2014Hearsay\\u2014Identification.\\nAdmission into evidence of hearsay testimony by a police officer concerning the complaining witness\\u2019s out-of-court identi\\u00f1cation of the defendants was not reversible error where both the police officer and the complaining witness testi\\u00f1ed at trial and were subject to cross-examination so that the defendants were not unfairly prejudiced by the testimony; furthermore, ordering a new trial would be an empty gesture where the evidence would be admissible under the new rules of evidence if a new trial were granted (MRE 801[d][1]).\\nConcurring Opinion by Kavanagh, C.J., and Levin, J.\\nSee headnote 1.\\n13. Criminal Law \\u2014 Evidence\\u2014Admissibility\\u2014Hearsay\\u2014Identification.\\nThe rules of evidence permit the introduction of a witness\\u2019s prior statement of identi\\u00f1cation when the prior identi\\u00f1cation occurred at a time and in circumstances that make that identi\\u00f1cation more probative than in-court identi\\u00f1cation (MRE 801[d][lj).\\n14. Criminal Law \\u2014 Evidence\\u2014Admissibility\\u2014Hearsay\\u2014Identification.\\nTestimony by an identifying witness of his prior out-of-court statement of identi\\u00f1cation of the defendant to police is properly admissible into evidence where the police did not arrange the confrontation which occurred by chance the day after the offense and the witness\\u2019s identi\\u00f1cation was free of the taint of suggestive circumstances (MRE 801[d][l]).\\n15. Criminal Law \\u2014 Evidence\\u2014Admissibility\\u2014Hearsay\\u2014Identification.\\nWhether persons other than the identifying witness may testify regarding a prior identi\\u00f1cation by the identifying witness raises issues under the confrontation clause; however, the error, if any, in admitting into evidence testimony by a police officer concerning the complaining witness\\u2019s identi\\u00f1cation of the defendants was harmless beyond a reasonable doubt where the defendants did not offer any evidence to dispute the identi\\u00f1cation, and the officer\\u2019s testimony did not tend to in\\u00f1uence the jury\\u2019s resolution of a disputed issue (MRE 801[d][l]).\\nFrank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Research, Training & Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.\\nCarl Ziemba for defendants.\", \"word_count\": \"11944\", \"char_count\": \"72972\", \"text\": \"Williams, J.\\nIntroduction\\nThis case concerns an attack upon Mr. Anderson, the complaining witness, by three men. The day after the attack Mr. Anderson called the police to inform them that he had seen his attackers. The police then accompanied Mr. Anderson to a poolroom where he pointed out the defendants. At trial Mr. Anderson and a police officer were permitted, over objection, to testify to the circumstances of the poolroom identification. The Court of Appeals found no reversible error. We agree.\\nAt the conclusion of the trial, defense counsel requested special jury instructions on reliability of witness identification testimony. The trial judge did not give the exact instructions requested but gave substantially similar ones. Defense counsel, who expected not to be present during the giving of the instructions had previously made an objection if the requested instructions were not given. The Court of Appeals found no reversible error. We agree.\\nThe trial judge failed to instruct the jury that their verdict must be unanimous. The jury was instructed on the requirement of unanimity during their orientation. The record reveals that all jurors acknowledged that they agreed on the verdict. Defense counsel neither requested an instruction on unanimity nor objected to the trial judge's failure to give it. The Court of Appeals found no reversible error. We agree.\\nBefore the Court of Appeals defense counsel alleged a violation of defendants' right to due process and equal protection. Defendants were convicted of assault with intent to rob not armed, MCLA 750.88; MSA 28.283 which carries a 15-year maximum sentence, and sentenced to 2 to 15 years imprisonment. Defense counsel cqntends attempted robbery unarmed, MCLA 750.530; MSA 28.798 and MCLA 750.92; MSA 28.287 is an identical offense with a five-year maximum sentence. Therefore he alleges defendants' rights were violated because of the discretion given to the prosecutor to charge either offense when both are identical. The Court of Appeals found the statutes prohibited different offenses and therefore were not identical. We agree the statutes are not identical, but for reasons different from the Court of Appeals. Affirmed.\\nI \\u2014 The Facts\\nDwight Sanford and Reginald Lee Gardner were charged in a one-count information with the commission of the offense of assault with intent to rob being unarmed, MCLA 750.88; MSA 28.283.\\nThe complainant, Booker Anderson, testified that on February 26, 1974 at about 5:45 p.m. he went to the Sherman Drug Store near Owen and Oakland in the City of Detroit. When he returned to his car and was unlocking the door someone grabbed him. Two persons hit him on the side of the head and tried to throw him down. They tried to get into his pocket and said that there was money in the pocket, A third person came and grabbed him and he was dragged to an alley and the culprits kept saying there was money in the pocket. Then they broke and ran. The culprits got nothing.\\nAt trial Mr. Anderson identified defendants Gardner and Sanford as two of the men who attacked him. Mr. Anderson testified he had one false eye and his glasses were broken in the struggle. He also testified he had never seen the defendants before that day, but he had seen them in the drug store when he walked into the drug store.\\nMr. Anderson also testified on direct examination to having identified the defendants the day after the attack. Mr. Anderson saw the defendants in the same drug store and called the police. By the time the police arrived defendants were in a poolroom. The police joined Mr. Anderson at the poolroom. Mr. Anderson then pointed the defendants out to the police. The relevant portions of that testimony follow:\\nC'Q. (By Mr. Morgan [prosecuting attorney]): Okay. Now, the next day, Mr. Anderson, February 27, did you have occasion to go back to the drug store?\\n\\\"A. I went back to the drug store.\\n\\\"Mr. Ziemba [defense counsel]: Objection. This is entirely irrelevant, your Honor.\\n\\\"The Court: Overruled.\\n\\\"Mr. Ziemba: Thank you.\\n\\\"Q. (By Mr. Morgan): Would that be in the afternoon some time?\\n\\\"A. Yes. I went back to the drug store, and I saw them come in the drug store.\\n\\\"Q. Who came in the drug store?\\n\\\"A. Those two here.\\n\\\"Mr. Ziemba: May I have a continuing line of this question? [sic]\\n\\\"The Court: Yes.\\n\\\"Mr. Ziemba: Thank you.\\n\\\"Q. (By Mr. Morgan): You saw Mr. Gardner and Mr. Sanford?\\n\\\"A. That's right.\\n\\\"Q. Did they do anything in the drug store?\\n\\\"A. They got a pack of cigarettes, I think, and walked out.\\n\\\"Q. Okay. What did you do next, sir?\\n\\\"A. I called a policeman.\\n\\\"Q. Did some police officers come?\\n\\\"A. That's right.\\n\\\"Q. What did you do next?\\n\\\"A. When I called the police, they circled around up and down Owen and Oakland, and then went in the poolroom.\\n\\\"Q. After the police went into the billiard room, what did you do, sir?\\n\\\"A. I went in there, too.\\n\\\"Q. What did you do next?\\n\\\"A. They was standing around there looking.\\n\\\"Q. Who do you mean, they?\\n\\\"A. They was looking, the police, and I pointed him out and him out because them was the ones who robbed me.\\n\\\"Q. You pointed Mr. Gardner and Mr. Sanford out?\\n\\\"A. That's right.\\n\\\"Q. What were they doing in the poolroom?\\n\\\"A. He was playing pool.\\nr'Q. Mr. Sanford?\\n\\\"A Yes, and he was playing checkers.\\n\\\"Q. Were there any other people in the poolroom?\\n\\\"A. Yes, about 15 to 16 people, something like that.\\n\\\"Q. Mr. Anderson, did you testify at a prior hearing in this matter?\\n'A. I [sure] did.\\n\\\"Q. At that particular time, did you have occasion to identify the defendants?\\n\\\"Mr. Ziemba: I object to this. This is highly objectionable.\\n\\\"The Court: Objection sustained.\\n\\\"Mr. Ziemba: I ask that the answer [sic] be stricken and the jury be instructed to disregard the answer [sic],\\n\\\"Mr. Morgan: Your Honor, may we approach the bench?\\n\\\"The Court: Yes.\\n(Whereupon a discussion was held off the record.)\\n\\\"Q. (By Mr. Morgan): Mr. Anderson, is there any doubt in your mind that these are two of the men who attempted to rob you on February 26?\\n'A. That's right. That's the two right there.\\\"\\nThe trial judge did not permit Mr. Anderson to testify to the identification procedure used for the preliminary examination. At the preliminary examination, at the request of the defense counsel, the complainant was excused from the courtroom and the defendants were seated in the audience. The complainant then entered the courtroom and took the witness stand. He was asked to identify the men who assaulted him, and identified defendants in the audience.\\nA police officer, over objection, confirmed complainant's testimony concerning the identification made February 27, 1974 in the poolroom. After this testimony the parties rested.\\nAt the close of the trial defense counsel requested, in writing, a special instruction on the reliability of witness identification testimony. The trial judge gave an instruction which was substantially similar.\\nThe court did not instruct the jury that their verdict had to be unanimous. Defense counsel neither requested such an instruction nor objected to the trial judge's failure to give it. The record reveals that the jury was instructed on the unanimity requirement during their orientation in the following manner:\\n\\\"Again, for 12 people or 6 people to reach a unanimous decision in a criminal trial is a difficult thing; and you have to listen to the opinions of each of your fellow jurors.\\\"\\nThe record also reveals,\\n\\\"that all the jurors acknowledged to the trial judge that they agreed on the verdict\\\". People v Sanford, 65 Mich App 101, 106; 237 NW2d 201 (1975).\\nThe jury convicted the defendants of assault with intent to rob unarmed. Both defendants received prison sentences of 2 to 15 years.\\nThe Court of Appeals affirmed defendants' convictions in People v Sanford, 65 Mich App 101; 237 NW2d 201 (1975).\\nWe granted leave to appeal on the issues raised in defendants' application, the four discussed above. We affirm defendants' convictions, but on issue I for reasons different from the Court of Appeals.\\nII \\u2014 Comparison op Two Criminal Statutes\\nThe defendants contend the offense defined in MCLA 750.88; MSA 28.283, assault with intent to rob being not armed is identical to the offense of attempted robbery unarmed, defined in MCLA 750.530; MSA 28.798 and MCLA 750.92; MSA 28.287.\\nThe Court of Appeals in discussing defendants' first issue stated:\\n\\\"Defendants next contend that the crime they were convicted of, assault with intent to rob being unarmed, is the same offense as attempted unarmed robbery. They contend that since assault with intent to rob being unarmed carries only a 15-year maximum sentence, and attempted unarmed robbery carries only a 5-year maximum, it is a denial of equal protection to have two statutes, with different penalties, prohibiting the same conduct. We disagree with defendants' theory that the two statutes are aimed at prohibiting the same conduct.\\\" 65 Mich App 101, 103.\\nMCLA 750.88; MSA 28.283 provides:\\n\\\"Assault with intent to rob and steal being unarmed \\u2014Any person, not being armed with a dangerous weapon, who shall assault another with force and violence, and with intent to rob and steal, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 15 years.\\\" (Emphasis added.)\\nMCLA 750.530; MSA 28.798 provides:\\n\\\"Robbery unarmed \\u2014 Any person who shall, by force and violence, or by assault or putting in fear, feloniously rob, steal and take from the person of another, or in his presence, any money or other property which may be the subject of larceny, such robber not being armed with a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 15 years.\\\" (Emphasis added.)\\nMCLA 750.92; MSA 28.287 provides:\\n\\\"Attempt to commit crime \\u2014 Any person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration, or shall be intercepted or prevented in the execution of the same, when no express provision is made by law for the punishment of such attempt, shall be punished as follows:\\n\\\"2. If the offense so attempted to be committed is punishable by imprisonment in the state prison for life, or for 5 years or more, the person convicted of such attempt shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or in the county jail not more than 1 year.\\\"\\nDefendants were convicted under MCLA 750.88; MSA 28.283, the statute with the greater penalty, and sentenced to terms of not less than 2 nor more than 15 years imprisonment. They allege that their convictions were violative of due process and equal protection under the laws of the Fifth Amendment and Fourteenth Amendment to the United States Constitution and under Const 1963, art 1, \\u00a7 17, because identical crimes are given different statutory penalties.\\nThe assault with intent to rob unarmed statute is conjunctive; there must be an assault with force and violence. The attempted robbery unarmed statute is disjunctive; the offense can be accomplished either by force and violence, or by assault, or putting in fear. Attempted robbery unarmed may therefore be committed simply by putting someone in fear while assault with intent to rob unarmed requires an assault with force and violence. Therefore the offenses, assault with intent to rob unarmed and attempted robbery unarmed, are different.\\nWe affirm the result of the Court of Appeals on this issue.\\nIll \\u2014 Definition of Criminal Assault\\nAlthough we affirm the Court of Appeals result on the above issue we disagree with their definition of \\\"criminal assault\\\".\\nThe Court of Appeals said:\\n\\\"Michigan criminal law, however, defines a criminal assault as any intentional, unlawful offer of violence to another with the apparent present ability to carry out the offer, creating a reasonable fear of immediate injury. People v Carlson, 160 Mich 426; 125 NW 361 (1910), Tinkler v Richter, 295 Mich 396; 295 NW 201 (1940); but see People v Syakovich, 32 Mich App 356; 188 NW2d 642 (1971). An \\\"assault\\\" requires that the victim be put in reasonable fear of immediate harm; 'force and violence' does not. A person may be 'forcefully and violently' attacked and robbed while never even seeing his assailant. The same person may not, however, be 'assaulted' unless he perceives the danger. Because MCLA 750.88; MSA 28.283 requires an assault as an element, and because MCLA 750.530; MSA 28.798 requires either an assault or force and violence, the two statutes prohibit different crimes. The prosecutor properly has the discretion to charge defendants under either statute. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672; 194 NW2d 693 (1972).\\\" 65 Mich App 101, 105 (emphasis added).\\nIn short the Court of Appeals defines criminal assault to include a requirement that \\\"the victim be put in reasonable fear of immediate harm\\\". That has not been the law of Michigan nor do we believe it to be the preferable policy.\\nA general definition of criminal assault is found in 2 Michigan Law & Practice, Assault and Battery, \\u00a7 31, which reads as follows:\\n\\\"A criminal assault is an attempt or offer to do corporal injury, with a present intention and ability.\\\"\\nPeople v Doud, 223 Mich 120, 123; 193 NW 884 (1923), offers the following definition:\\n\\\"An assault, under practically all definitions, must carry on the face of its attendant circumstances an offer or attempt with force or violence to do a corporal hurt to another.\\\"\\nPeople v Sheffield, 105 Mich 117, 118-119; 63 NW 65 (1895), defined assault in almost identical words:\\n\\\"An assault involves 'every attempt or offer, with force and violence, to do a corporal hurt to another.' \\\"\\nIt will be noted that none of these definitions include the Court of Appeals requirement of \\\"reasonable fear of immediate harm\\\". One earlier case, People v Lilley, 43 Mich 521; 5 NW 982 (1880), specifically rejected that requirement in the following words:\\n\\\"What then constitutes an assault in law? It might be somewhat difficult to reconcile all the authorities upon this subject, and we shall not attempt it. Some of the tests, as putting the person assaulted in fear, cannot be relied upon, as evidently an assault may be made upon a person, even although he had no knowledge of the fact at the time.\\n\\\"An assault is defined to be an inchoate violence to the person of another, with the present means of carrying the intent into effect. Threats are not sufficient; there must be proof of violence actually offered, and this within such a distance as that harm might ensue if the party was not prevented.\\\" 43 Mich 521, 525-526 (emphasis added).\\nIn deriving its definition of assault, as the earlier quotation from its opinion indicates, the Court of Appeals relied on two Supreme Court cases. It acknowledged that an earlier Court of Appeals case, People v Syakovich, 32 Mich App 356, 357; 188 NW2d 642 (1971), had adopted a contrary interpretation.\\nWhat warrant, then, do the two cited Supreme Court cases give the Court of Appeals to reach its decision? Tinkler v Richter, 295 Mich 396; 295 NW 201 (1940), is a civil case. Traditionally, \\\"the word 'assault' represented an entirely different concept in criminal law than it did in the law of torts\\\". Perkins on Criminal Law (2d ed), Assault, p 114. As a consequence, dependence on a civil law definition gives little support to the Court of Appeals position.\\nThe other case the Court of Appeals relied on, People v Carlson, 160 Mich 426; 125 NW 361 (1910), gives ambiguous support to the Court of Appeals. The pertinent language from that case follows:\\n\\\"There are numerous definitions of what constitutes an assault given by courts and textwriters. We cite two, which, taken together, may be said to include all necessary elements:\\n\\\" 'An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect.' 3 Cyc, p 1020.\\n\\\" 'An assault is any unlawful physical force, partly or fully put in motion, creating a reasonable apprehension of immediate injury to a human being.' 2 Bishop on Criminal Law (7th ed), \\u00a7 23.\\\" 160 Mich 426, 429.\\nWhile the introductory language presenting the definitions of the two treatises, \\\"We cite two, which taken together, may be said to include all the necessary elements\\\" is susceptible to the conjunctive interpretation given by the Court of Appeals in this case making the Bishop definition a necessary element along with the Cyclopedia definition, a disjunctive interpretation is also possible, namely that either the Bishop or the Cyclopedia definition is sufficient alone. The facts in Carlson do not establish either the conjunctive or the disjunctive interpretation because the record disclosed facts that would satisfy either or both definitions.\\nIt may be of some significance that while Carlson has been cited in a subsequent Michigan case, People v Doud, 223 Mich 120, 123, 125, the requirement \\\"that the victim be put in reasonable fear of immediate harm\\\" was not mentioned in case law until the Court of Appeals mentioned it in this case, while, on the other hand, Carlson did quote Lilley on how much action is necessary to create an assault without any comment on the fact that Lilley had held a person could be assaulted, \\\"although he had no knowledge of the fact at the time\\\" and hence no fear.\\nAs a consequence of this history of the Michigan cases and the fact that, as Perkins on Criminal Law (2d ed), pp 116-117 says:\\n\\\"[T]here has been a tendency in many [jurisdictions] to add the tort liability theory as an additional ground. Where the tort theory has been added, a simple criminal assault 'is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery,' \\\"\\nwe prefer to read Carlson as quoting Bishop as an alternate or additional definition of assault rather than as a required element in every definition of assault. We are fortified in this conclusion by the fact that Bishop said that fear was not a sine qua non for assault. 2 Bishop on Criminal Law (9th ed), \\u00a7 33, reads as follows:\\n\\\"\\u00a7 33.1. Injury without Fear \\u2014 Actual fear, created in the mind of the assailed person, while doubtless in proper circumstances it may be an element in assault, is not always and as of course necessary.\\\" (Emphasis added.)\\nSee also 2 Burdick, Law of Crime, \\u00a7 339, p 3; Commonwealth v Slaney, 345 Mass 135, 139; 185 NE2d 919, 922 (1962), which says the Bishop requirement that fear be an element has been much criticized and that \\\"in this Commonwealth neither fear, nor terror nor apprehension of harm is an essential ingredient of the common law crime of assault\\\".\\nIn conclusion, we hold that the Court of Appeals definition of assault in this case is incorrect and we specifically overrule it. We adopt what Perkins on Criminal Law (2d ed), p 117, says is the majority rule, namely \\\"a simple criminal assault 'is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery' \\\". We also hold that either the Cyclopedia or the Bishop definition in Carlson is an adequate definition of a form of assault and that both forms are actionable in the criminal law.\\nIV \\u2014 Unanimous Verdict\\nDefendants' second issue on appeal is whether the failure of the trial judge to instruct the jury that their verdict must be unanimous requires reversal. The Court of Appeals stated:\\n\\\"Defense counsel, who is also counsel on appeal, neither requested such an instruction nor objected to the trial judge's failure to give it. Under these circumstances, we would reverse only to prevent a miscarriage of justice. See People v Fry, 55 Mich App 18; 222 NW2d 14 (1974); GCR 1963, 516.2. Since the record in this case reveals that the jury was instructed on the unanimity requirement during their orientation, and that all the jurors acknowledged to the trial judge that they agreed on the verdict, we find no miscarriage of justice.\\\" 65 Mich App 101, 105-106.\\nWe agree that the convictions should not be reversed for this failure, but for reasons similar to those stated in the concurrence in People v Burden, 395 Mich 462, 469-470; 236 NW2d 505 (1975).\\nIn the concurrence in Burden we examined the situation to determine if there were sufficient factors present to show that the jury had been substantially instructed as to the need for unanimity and that the verdict, in fact, had been unanimous. We apply the same analysis to this case.\\nFirst, the jury was advised of the requirement of a unanimous verdict during their orientation. They were informed as follows:\\n\\\"Again, for 12 people or 6 people to reach a unanimous decision in a criminal trial is a difficult thing; and you have to listen to the opinions of each of your fellow jurors.\\\"\\nAlthough the trial judge should instruct a jury in a criminal case that their verdict must be unanimous, in view of the circumstances, this language is adequate to advise the jury of their obligation to reach a unanimous verdict.\\nSecond, as noted by the Court of Appeals \\\"all the jurors acknowledged to the trial judge that they agreed on the verdict\\\". 65 Mich App 101, 106. There was actually a unanimous verdict.\\nIt is these factors which lead us to conclude that defendants received a fair trial, even though no instruction was given to the jury by the trial court on the requirement of a unanimous verdict.\\nV \\u2014 Identification Instructions\\nOn the issue of jury instructions on identification the Court of Appeals ruled:\\n\\\"The failure of the trial judge to give defendants' requested identification instruction was not erroneous, as the judge did give an instruction that was substantially similar to the one requested.\\\" 65 Mich App 101, 106.\\nWe agree with the conclusion of the Court of Appeals.\\nWithout the entire requested charge (page one is now missing) it is difficult to assess how far the trial judge deviated from the requested charge. Yet, defense counsel's oral request and page two of his written request provide us with the general nature of the instruction he requested.\\nAt the close of the trial defense counsel requested a special instruction on witness identification stating:\\n\\\"the only one [instruction] I would anticipate asking the court would be an instruction to the effect that testimony as to the identification of a defendant by complainant who admits never having known that person before the criminal encounter, is at best an opinion and not a statement of fact and that it must be approached with great care and weighed very carefully by the jury.\\\"\\nDefense counsel submitted an instruction in writing on the point mentioned. The second page reads as follows:\\n\\\"You must consider the credibility of each identification witness in the same way as any other witness, consider whether he is truthful and consider whether he had the capacity and opportunity to make a reliable observation on the matter covered in his testimony.\\n\\\"I emphasize that the burden of proof on the prosecutor extends to every element of the crime charged, and this specifically includes the burden of proving beyond a reasonable doubt the identity of the defendant as the perpetrator of the crime with which he stands charged. If after examining the testimony, you have a reasonable, doubt as to the accuracy of the identification, you must find the defendant not guilty.\\n'United States v Telfaire, 152 US App DC 146; 469 F2d 552 (1972), United States v Barber, 442 F2d 517 (CA 3, 1971), United States v Edward, 439 F2d 150 (CA 3, 1971).\\\"\\nAfter submitting the request defense counsel stated:\\n\\\"The request is broadly to the effect that testimony as to identification by a witness who had never seen the person identified before the alleged offense was an expression of belief by that witness.\\n\\\"I most respectfully ask the court to give that instruction, as submitted to the court, to the jury.\\n\\\"If the court decides not to give that instruction, I would at this time voice an expressed objection to the court's instruction as being inadequate.\\\"\\nIt is clear that defendants wanted a detailed instruction on the reliability and credibility of identification witness testimony, including the fact that such testimony is at best an opinion and not a statement of fact and that it must be approached with great care and weighed very carefully by the jury.\\nA review of the instruction on witness identification given by the trial judge reveals substantially the same type of instruction that was requested by defense counsel. The trial judge said:\\n\\\"The third element then has to do with identity. Then, the question is whether or not there is proof beyond a reasonable doubt that these two defendants were the persons who in fact assaulted Mr. Booker Anderson with the intent to rob him. The defendants, Mr. Gardner and Mr. Sanford, are alleged to be the two persons who participated in this offense.\\n\\\"I charge you as a matter of law that identification is often an expression or [sic] the belief of the witness and, of course, you jurors are not obligated to take the expression or [sic] the belief of the complaining witness in this case and adopt it as your own.\\n\\\"In this case you must, in order to determine whether or not the defendants each of them or either of them assaulted Mr. Anderson, intending to rob him, you must look at the opportunity they [sic] may have had, to make the observation and the other facts and circumstances which convinces you as to the identification.\\n\\\"You may take the testimony of Mr. Booker Anderson. And, if it seems reasonable and creditable, adopt it, as any other facts about which testimony has been given in the case. Or, you may take that testimony as it relates to that or any other facts in this case and examine it carefully as to whether or not it has been proven to the third element [identification].\\\"\\nAgain, at the end of the charge to the jury, the trial judge instructed the jury on witness testimony. The trial judge said:\\n\\\"In this case as in any other, case, ladies and gentlemen, the determination you will be making is to give the credibility of the witnesses. You as jurors have the sole judgment. You have the right to consider certain characteristics of the witnesses and the manner in which they testify before you.\\n\\\"If in the event there is a conflict of testimony of one witness, you are not bound to that testimony which seems unreasonable with other facts in the case. You should not reject the testimony of one witness without reason. You may accept the testimony of the witness [not] withstanding. You may also disregard the testimony entirely of that witness, if there is misrepresentation, in your own objection [sic], \\\"\\nTaking the jury charge as a whole we can find no prejudice to the defendants due to the trial judge's failure to give the exact instruction requested.\\nVI \\u2014 Prior Identification\\nDefendants contend it was error \\\"for the trial judge to permit, over objection, testimony by the complainant and by a police officer as to the circumstances of defendants' arrests\\\", because it was \\\"irrelevant\\\" and \\\"merely gratuitously bolstered complainant's in-court identification by hearsay\\\". The Court of Appeals stated that after reviewing the issue \\\"discussion is without merit\\\". 65 Mich App 101, 106.\\nWe find the question to be whether, over objection, the trial judge should permit testimony concerning an extrajudicial identification by the witness who made the identification and/or by a third party, in this instance a police officer, who witnessed the identification. The problem is whether such testimony is hearsay and if so whether there is an exception which would allow one or both witnesses to testify.\\nThere is a split among the jurisdictions on this question. In Gilbert v California, 388 US 263, 272-273, fn 3; 87 S Ct 1951; 18 L Ed 2d 1178 (1967), the United States Supreme Court did not distinguish the two types of testimony and observed:\\n\\\"There is a split among the States concerning the admissibility of prior extrajudicial identifications, as independent evidence of identity, both by the witness and third parties present at the prior identification. See 71 ALR 2d 449. It has been held that the prior identification is hearsay, and, when admitted through the testimony of the identifier, is merely a prior consistent statement. The recent trend, however, is to admit the prior identification under the exception that admits as substantive evidence a prior communication by a witness who is available for cross-examination at trial. See 5 ALR 2d Later Case Service 1225-1228.\\\"\\nWe agree with the position taken in the Federal Rules of Evidence, which removes the testimony of the identifier from the hearsay category. The Federal Rule of Evidence 801(d)(1)(C) states:\\n\\\"Rule 801. Definitions\\n\\\"The following definitions apply under this article:\\n\\\"(d) Statements which are not hearsay. A statement is not hearsay if\\u2014\\n\\\"(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (C) one of identification of a person made after perceiving him.\\\"\\nWe find that the testimony of the third party limited to the circumstances surrounding the identification is not objectionable as hearsay and is admissible at the discretion of the trial judge subject to such considerations as whether the identification procedures were unfair, biased, or a violation of the accused's constitutional rights.\\nA. Testimony by the Identi\\u00f1er.\\nObjections to this type of testimony have usually been based either on its character as hearsay or on the theory that it amounts to impermissible bolstering of the victim's testimony by a prior consistent statement. In my concurring opinion in People v Poe, 388 Mich 611; 202 NW2d 320 (1972), the importance of such testimony was noted:\\n\\\"This case strongly highlights a psychological and legal problem deserving the most serious consideration of the bench and bar. In reading the record and my Brother Adam's [sic] opinion, one cannot escape the emphasis on what the witnesses at pretrial identification said and did. Such matters as whether or not an identifying witness did or did not identify the defendant; whether the identifying witness identified another person; whether the identification was 'positive' or 'hesitant'; what the identifying witness said; what the police records of the lineup do or do not show; etc., all are heavily stressed. And no wonder, because punishment or discharge depends on whether the jury finds beyond a reasonable doubt that the witnesses identified the 'right' man.\\n\\\"From this emphasis on what happened and what was said at the pretrial identification procedures it is apparent that both parties thought the jury would be influenced by identifying witness' impressions at the time nearest the crime. This actually is logically and psychologically sound. An important consideration underlining my concurrence in this case is the proposition that, all things being equal, identifications made prior to trial are inherently more reliable than those made 'in court' ('That's the man'). Wigmore has characterized in-court identifications as 'violently suggestive.' Wigmore, Evidence \\u2014 Corroboration by Witness' Identification of an Accused on Arrest, 25 Ill L Rev 550, 550-551 (1931); see also 4 Wigmore, Evidence (3d ed), \\u00a7 1130; Comment, Prior Identi\\u00f1cation Evidence & the Hearsay Objection, 30 Rocky Mt L Rev 332 (1958); Wall, Eye-Witness Identification in Criminal Cases, pp 26-27, 181 fn 2, and Chapter V (1971, 2d printing). However, in Gilbert v California, 388 US 263; 87 S Ct 1951; 18 L Ed 2d 1178 (1967), the United States Supreme Court made testimony as to pretrial identification procedures subject to per se exclusion if the defendant was without counsel. Kirby, supra [Kirby v Illinois, 406 US 682; 92 S Ct 1877; 32 L Ed 2d 411 (1972)], restricted this per se exclusion to post-'indictment' situations. This writer believes that the per se exclusionary rule should be eliminated entirely and an appropriate rule of special qualification of such evidence on the basis of the fairness of the procedures substituted.\\\" 388 Mich 611, 623-625.\\nThe Federal system adopted such a rule by enacting the Federal Rules of Evidence, Rule 801(d)(1)(C), supra.\\nThis Court's most direct pronouncement on the subject was made in conclusory fashion in People v Londe, 230 Mich 484; 203 NW 93 (1925). There the Court said:\\n\\\"It was proper for the witnesses who had seen the men at the time of the robbery to testify that they later identified the defendant as one of them. And it was equally proper for the officer to testify under what circumstances the identification was made. That is as far as the witnesses were allowed to go in giving their testimony. Counsel's objection is without merit. It does not require further discussion.\\\" 230 Mich 484, 487.\\nTherefore, a literal interpretation of Londe would make the testimony concerning the prior identification by the declarant admissible, if the extrajudicial identification was fair. This is consistent with the Federal Rules of Evidence 801(d)(1)(C) and our own proposed Michigan Rule of Evidence 801(d)(1)(C), which is identical to the Federal Rule. 399 Mich 1002.\\nIn this case, we are not dealing with the traditional pre-trial line-up, arranged by the police once the suspect is in custody, but a situation where the complaining witness initiated the identification process. Mr. Anderson observed the defendants in a store the day after he was attacked. After observing the defendants, Mr. Anderson called the police and upon their arrival pointed out the defendants, who by then were in a poolroom. There is no suggestion that the identification was unfair, biased or a denial of the defendants' constitutional rights. Surely, so close to the time of the crime this identification had more probative value than one at trial some months later.\\nUnder the law as expressed in Londe, and our proposed Michigan Rule of Evidence 801(d)(1)(C), testimony of Mr. Anderson concerning his extrajudicial identification of the defendants is not hearsay. It is a special type of prior consistent statement which is not subject to the usual requirement that it be used solely to rebut a charge of recent fabrication or improper influence or motive and is admissible.\\nB. Testimony of Third Party.\\nOur case law and that of other jurisdictions do not present a clear case for admission of this type of testimony. While most jurisdictions admit the testimony of the identifier as to an extrajudicial identification, most jurisdictions do not admit the testimony of a third party to an extrajudicial identification, except in limited circumstances. The objections to the testimony of the third party are generally the same as those to the testimony of the identifier: its character as hearsay or that it amounts to a bolstering of the identifier's testimony. Where admitted, such testimony has usually been limited to (1) rebuttal of testimony tending to impeach or discredit the testimony of the identifying witness or (2) testimony of the circumstances surrounding the identification.\\nThis Court spoke on the admissibility of such testimony in Londe, and allowed the testimony of a police officer as to the circumstances under which the identification was made.\\nIn Poe, although the police officer's testimony and handwritten notes concerning the pretrial identification were held inadmissible hearsay, we acknowledged the rule in Londe, and said: _\\n\\\"Londe restricts the police officer's testimony to 'what took place' and under 'what circumstances the identification was made' and not, as here, the nature or quality of the identification.\\\" 388 Mich 611, 618.\\nIn Poe, the facts indicated that the pretrial identification procedures, arranged by the police, were arguably unfair. This Court said:\\n\\\"The witnesses were shown a number of police mug shots the night of the holdup and again the next morning. Defendant's photo was in both groups. This would be within standard and proper identification procedures. However, two of the witnesses recalled having been shown photos on the day of the showup and Fannie Evans stated that when she went to the police station for the showup, she was permitted to see defendant before the showup. T really didn't look at the others [in the showup] because I saw him [defendant] before I even got there and I recognized him.' When Gary Harbin viewed defendant at a showup, men used for it, besides the 32-year old defendant, were two teenagers and a 58-year old man.\\\" 388 Mich 611, 616.\\nThis Court concluded that:\\n\\\"In this case, however, we have identification procedures prior to trial that are at least open to the suspicion of unfairness.\\\" 388 Mich 611, 619.\\nIn this case there is no suspicion that the identification of defendants by the complaining witness was unfair. Mr. Anderson saw the defendants in the drug store. He called the police. When the police arrived, Mr. Anderson pointed out the defendants. This type of identification procedure is one of the fairest available.\\nIn People v Hallaway, 389 Mich 265; 205 NW2d 451 (1973), we held it was impermissible to permit a police officer to relate the description of the suspect given to him at the scene of the crime by an eyewitness who also testified at trial. The testimony was objected to as being hearsay. Since it was also a prior consistent statement and no prior inconsistent statement had been admitted, it was held inadmissible. In that case we were not dealing with the limited question of testimony of the circumstances of the extrajudicial identification procedure, but with the description that was given by the witness to a third party. The difference is crucial to the admissibility of the testimony.\\nIn this case the officer testified to an event he had witnessed, the identification of the defendants by Mr. Anderson, the complaining witness. He was not testifying to the truth of the identification statement but to the fact that it was made and the circumstances surrounding it. Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Since the police officer was not testifying to prove that the defendants were the alleged assailants, but only to show that on February 27, 1974 he witnessed an event, the identification of the defendants by Mr. Anderson, his testimony was not hearsay.\\nEven though not objectionable as hearsay, such testimony is still within the category of prior consistent statements. There is danger in the use of prior consistent statements in relation to identification procedures. We noted the weakness of witness identification procedures in People v Anderson, 389 Mich 155; 205 NW2d 461 (1973). Keeping in mind the dangers inherent in piling on such testimony, we do see value in such testimony when limited to the circumstances surrounding the event, and we find it is within the discretion of the trial judge to allow or disallow such testimony.\\nIn this case we find that the trial judge recognized he had the discretion to allow or disallow the testimony of the police officer and that he did not abuse his discretion. First, the record does not contain any suggestion that the identification procedure which took place on February 27, 1974 was unfair, biased or a violation of the constitutional rights of the defendants. Second, the record reveals that the trial judge limited the testimony of the police officer to the circumstances of the identification procedure. Third, the trial judge did not allow testimony concerning the identification procedure which was used at the preliminary examinations. These factors show that the trial judge did not abuse his discretion and therefore the testimony of the police officer as to the February 27, 1974 identification was properly admitted.\\nConclusion\\nWe find assault with intent to rob not armed, MCLA 750.88; MSA 28.283 and attempted robbery unarmed, MCLA 750.530; MSA 28.798 and MCLA 750.92; MSA 28.287 are not identical crimes. Assault with intent to rob not armed requires the use of force and violence. Attempted robbery unarmed may be committed without force and violence simply by putting another in fear.\\nWe find sufficient evidence in the record to establish that defendants received a fair trial, even though no instruction was given by the trial judge on the requirement of a unanimous verdict, because in their \\\"orientation\\\" the jury had been instructed on the necessity for a unanimous ver diet and the jury had in fact returned a unanimous verdict.\\nWe find the instruction given by the trial judge on witness identification testimony substantially similar to that requested by defendant. We find no prejudice to the defendant due to the trial judge's failure to give the exact instruction requested.\\nWe find the testimony of the complaining witness about calling the police and identifying the defendants to them in a pool hall the day after the crime is not hearsay and was properly admitted under the law expressed in Londe. The testimony of the police officer, a third party who witnessed the extrajudicial identification and testified only to the circumstances of the identification procedure, was properly admitted within the discretion of the trial judge.\\nWe affirm.\\nColeman and Blair Moody, Jr., JJ., concurred with Williams, J.\\nThe essential elements of assault with intent to rob being unarmed are (1) an assault with force and violence, (2) an intent to rob and steal, and (3) defendant being unarmed. The crime necessarily requires an assault and the requisite intent, but not necessarily the taking.\\nThe essential elements of an attempted unarmed robbery are (1) an attempted felonious taking of property from the person of another or in his presence, (2) by force and violence or by assault or by putting in fear, and (3) defendant being unarmed.\\nAn assault with intent to rob being unarmed necessarily involves an attempt or offer to do corporal injury, with the present intention and present ability to carry out the offer. In other words, there must be a criminally assaultive act.\\nAttempted unarmed robbery may or may not include a criminal assault. An attempted unarmed robbery may also be accomplished by force and violence or by putting in fear. Attempted unarmed robbery does not necessarily require an assault. Therefore, it is obvious that the defendant need not possess the present ability to carry out the offer.\\nTherein lies what we believe to be the policy rationale for attaching a 15-year maximum sentence to assault with intent to rob being unarmed while requiring only a 5-year maximum sentence for attempted unarmed robbery.\\nAn assault with intent to rob being unarmed necessarily involves an offer to do injury with the present ability to carry out that offer. Hence, the crime is always more dangerous vis-\\u00e1-vis potential victims.\\nAttempted unarmed robbery does not necessarily require an assault so, by definition, the present ability to carry out the offer need not exist. Hence, under certain circumstances, that crime is less dangerous vis-\\u00e1-vis the possibility of actual bodily harm to the victims.\\n71 ALR2d 449, \\u00a7 7, Testimony of identifier, p 460; \\u00a7 13, Testimony of third person, p 482.\\nAfter this opinion was written but before it was signed this Court adopted the Michigan Rules of Evidence including MRE 801(d)(1) which now reads as follows:\\n\\\"(d) Statements which are not hearsay. A statement is not hearsay if\\u2014\\n\\\"(1) Prior statement of witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving him; or\\\".\\nIt should be noted that our rule MRE 801(d)(1), which is in accord with the Federal Rules of Evidence 801(d)(1)(C), is consistent\\n\\\"with '[t]he recent trend to admit the prior identification under the exception that admits as substantive evidence a prior communication by a witness who is available for cross-examination at trial.' The New Jersey and California codifications are to the same effect and New York reached this result by judicial construction. Although there was conflicting authority within the federal jurisdictions prior to the adoption of the federal rules, a number of circuits had been moving in this direction.\\\" 4 Weinstein, Evidence, \\u00b6 801, p 801-104.\\nWe believe the rule of our case is not inconsistent with our MRE 801(d)(1). We further believe an analysis, on a case by case basis, should be made to determine whether the prior identification should be near in time and if so how near in time to the transaction involving the person to be identified; and also whether any prior identification regardless of its relation to the time of the critical transaction and date of testifying at the trial of case, should be admitted.\\nSee 4 Weinstein, Evidence, \\u00b6 801, p 801-106.\\nA prior identification may\\n\\\"be suspiciously unreliable. The 'recent trend' in identification cases is a two-pronged affair. It recognizes that unreliability is not due to the lack of cross-examination at the time the statement is made \\u2014 the principal danger against which the hearsay rule protects \\u2014 but rather is due to the procedures by which the pre-trial identification is elicited\\\".\\n71 ALR2d 449, \\u00a7 13, Testimony of third person.\\nPeople v Hallaway, 389 Mich 265, 275; 205 NW2d 451 (1973).\"}" \ No newline at end of file diff --git a/mich/1926646.json b/mich/1926646.json new file mode 100644 index 0000000000000000000000000000000000000000..af9ead1d3a8ec0cd6a87125695e60dbc5feb6369 --- /dev/null +++ b/mich/1926646.json @@ -0,0 +1 @@ +"{\"id\": \"1926646\", \"name\": \"Horace Gray v. Charles D. Gibson and Others\", \"name_abbreviation\": \"Gray v. Gibson\", \"decision_date\": \"1859-05-13\", \"docket_number\": \"\", \"first_page\": \"300\", \"last_page\": \"326\", \"citations\": \"6 Mich. 300\", \"volume\": \"6\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T00:23:24.959974+00:00\", \"provenance\": \"CAP\", \"judges\": \"Martin Ch. J. concurred.\", \"parties\": \"Horace Gray v. Charles D. Gibson and Others.\", \"head_matter\": \"Horace Gray v. Charles D. Gibson and Others.\\nAn agreement for the formation of a limited partnership, executed under the laws, of New York, but not recorded so as to become effectual for the purpose do-, signed, has no tendency to prove an actual general partnership between the par-, ties named in it, in the absence of extrinsic evidence to show that they had actually entered into business as partners.\\nWhere plaintiffs sue as partners, not upon any contract made or dealings had by them, as such, witli defendant, nor upon negotiable paper, and the partnership is. put in issue, the real question to ho submitted to the jury is, whether plaintiffs, are partners as between themselves, and not whether they have, in any way,, made themselves liable as partners to third persons. And it is erroneous for the-Court to charge the jury that if the evidence shows the plaintiffs have made themselves partners as to third persons, they have in fact become general partners, and as such are entitled to maintain the action.\\nWhether persons are partners bite?\\u2019 se, is to be determined by the understanding- and intention of the parties as between themselves; and they can not be made such without the assent of every member, and his actual intention to bocomo. a partner.\\nHeard December 2d and 3d, 1858.\\nDecided May 13th, 1859.\\nError to Wayne Circuit.\\nCharles D. Gibson, William II. Mason, and Amasa Mason, brought replevin against Gray in the court below, for a quan-. tity of wheat. Gray pleaded the general issue, and gave no-, tice under that plea that the wheat was the property of one- Ells, and that he took the same as sheriff of the county of Wayne, by virtue of certain attachments issued to him against the property of Ells.\\nOn the trial before a jury, plaintiffs gave in evidence Title I., of Chapter IY., Part II. of the Revised Statutes of New York; and then called one Graves as a witness, who testified as follows:\\n\\u201c I have knowledge respecting the formation of a partner\\u25a0ship between the plaintiffs; there was an agreement of partnership reduced to writing, and signed in my presence, March Vth, 1858. I have not seen that agreement since September, 185V; it was then in the office and custody of the clerk of Erie \\u2022county, New York. I asked the clerk to allow me to take the original agreement out of his office for the purposes of this trial, but he refused to allow me to do so. Mr. George Perkins, the subscribing witness to the original agreement, does \\u2022not reside in the state of Michigan. I have a copy of that paper, which I took in pencil at the time I last had it. I \\u2022then examined the signatures to original; they were genuine. There were acknowledgments of the execution of the certificate appended.\\u201d\\nThe plaintiffs then offered in evidence the copy which the Vitness testified to having so made. Defendant objected,\\u2014\\n1st. That it was not a copy of the whole paper filed with the clerk \\u2014 the certificates of acknowledgment being essential .parts of the instrument;\\n\\u20222d. If the paper was not, in fact, acknowledged, then, it not being such a paper as the county clerk was authorized to receive and file, it was not legally'in his custody, and therefore no reason is shown why the original was not produced and proved;\\n3d. The paper does not show a general partnership was formed, nor tend to prove i,t.\\nThe Court overruled the objections, and admitted the .paper in evidence, and defendant excepted. The instrument was as follows:\\n\\u201c This is to certify that the -undersigned have formed a limited partnership, pursuant to the provisions of the Revised Statutes of the state of New York, to be conducted under the name or firm of Charles D. Gibson: that the general nature of' the business intended to be transacted, is the Commission and Exchange business: That Charles D. Gibson, who lives in the city of Buffalo, county of Erie, and state of New York, is the general partner: That William H. Mason, who resides in\\nThompson, Windham county, and state of Connecticut, and Amasa Mason, who 'resides in the city of Buffalo, county of Erie, and state of New York, are the special partners: That the said William H. Mason has contributed the sum of fifteen thousand dollars, as capital, to the common stock, and the said Amasa Mason has contributed the sum of ten thousand dollars, as capital, to the common stock: That the said copartnership is to commence on the 10th day of March, 1853, and is to. terminate on the 10th day of March, 1858. Dated this '7th day of March, 1853. \\u201cWill. H. Mason, [l. s.]\\u201d \\u201cAmasa Mason, [l. s.]\\u201d \\u201cCharles D. Gibson, [l. s.]\\u201d \\u201cWitness; George Perkins, to W. H. Mason.\\u201d\\nThe plaintiffs then offered in evidence a paper, purporting to be a copy of the same instrument, with certificates attached of the acknowledgment of execution thereof by each of the signers, one before a commissioner of deeds in New York, and the other before an officer in Connecticut; to which copy was annexed the certificate of the clerk of Erie county, New York, that the original, with the certificates of acknowledgment endorsed, was filed in his office, March ^th, 1853, together with an affidavit, of which the following is a copy:\\n\\\"Erie County,' City of Buffalo, ss.: Charles D. Gibson, being duly sworn, deposes and says, that he resides in the city of Buffalo, Erie county, and state of New York; that he is the general partner named in the above certificate; and that the sums specified in the above certificate to have been contributed, by each of the special partners therein named, to the common stock, have been actually, and in good faith, paid in cash.\\u201d (Signed and sworn to.)\\nThe clerk further certifies that these instruments were never recorded in his office.\\nThe clerk\\u2019s certificate was verified in the manner provided by the act of Congress for the authentication of records.\\nTo the introduction of this certified copy, defendant \\u2022 objected,\\u2014\\n1st. That the act of Congress, providing for the authentication' and exemplification of office books, does not extend to \\u201cfiles\\u201d \\u2014 to papers filed, but not recorded;\\n2d. That the law of New York, under which it is claimed these papers were filed with the county clerk, requiring that they should be recorded, and as it appears they have not been, they can not be made evidence;\\n3d. There is witness to but one signature;\\n4th. That the officer before whom William II. Mason acknowledged the certificate in Connecticut was not author, ized to take the same by the laws of New York;\\n5th. That the acknowledgment of the certificates by Gibson and Amasa Mason does not appear to have been made before an officer authorized by the law of New York to take the same:\\n6th. There is no provision in the law of New York by which a limited partnership can be converted into a general partnership until after the record of the certificates and affidavits; and as these papers are shown not to have been recorded, no limited partnership could have been proved; hence the papers offered do not even tend to prove the existence of a general partnership between the plaintiffs.\\nWhich objections were overruled by the Court, and the papers read in evidence.\\nPlaintiff then introduced in evidence the laws of New York governing the acknowledgment of such instruments, one of which specified certain oificers authorized to take the same, but not including commissioners of deeds, and another permitted such acknowledgments to be taken before any officer authorized to take acknowledgments to conveyances of lands. He also introduced the following section from the Bevised Statutes of that state, admitted to be still in force:\\n\\u201c Copies of all papers duly filed in the office of the county clerk, and transcripts from the books of the records kept therein by such clerk, with the seal of his office affixed, shall be evidence, in all courts, in like manner as if the originals were produced.\\u201d\\nPlaintiffs then called one Sawyer as a witness; who testified as follows:\\n\\u201cIn the fall of 1853, I had business transactions with Gibson. I was going to Chicago. He asked me to take along some of his blank acceptances, and if I found an opportunity to advance them in produce to go forward, to do so. I was to have the' produce shipped to him at Buffalo. I agireed to do so. I took the acceptances, which were blank drafts, without signature, date, or amount, with the name of Charles D. Gibson written across the face, with me to Chicago. I made an arrangement with Ells to advance him one dollar per bushel on 15000 bushels of wheat for Mr. Gibson. I don\\u2019t remember that I stated who Mr. Gibson was. Think Ells said he had heard of him. After I made the arrangement with Ells, I left for Milwaukee, and was absent three days. On my return to Chicago I had another interview with Ells. I asked him in regard to the shipping of the wheat. He gave me a bill of leading which I mailed to Gibson, at Buffalo, on the evening of October I5th.\\u201d\\nThe plaintiffs then introduced and proved the bill of lading, which was in the following words:\\n\\u201cN. B. Ells, Commission Merchant.\\n\\\"Chicago, Oct. 15th, 1853.\\n\\u201cShipped, in good order and well conditioned, by N. B. Ells, as agent and forwarder, for account and risk of whom it may concern, on boat the bark called the North Star, Whereof John Wake is master, now lying in this port, and bound for Buffalo, N. Y., the following articles, being marked and numbered as in the margin, and to be delivered in like good order at the port of Buffalo, N. Y, (the dangers of navigation excepted), unto the consignee named in the margin, or their assigns. Freight and charges to be paid as noted below. In witness whereof, the master of said vessel hath affirmed to three bills of lading, all of this tenor and date, one of which being accomplished, the others to stand void.\\n\\\"Acct. of N. B. Ells. Care Chas. D. Gibson, Buffalo, N. Y. 14172 45-1 OOths bushels wheat. Freight to Buffalo, fifteen cents per bu.\\n(Signed) \\u201c John Wake.\\u201d\\nOn the evidence being closed, defendant asked the Court to charge the jury, that in order to recover as plaintiffs, the plaintiffs must show a right as between themselves to do so, and are bound by the agreement made among themselves. The Court declined this request, but charged that if the evidence showed that the plaintiffs had made themselves partners as to third persons, they had, in fact, become general partners, and as such Avere entitled to maintain this action. To Avhich refusal to charge, and charge as given, defendant excepted.\\nA verdict having been rendered for plaintiffs, and judgment given thereon, defendant brought error.\\nThe errors assigned in this Court were,\\u2014\\n1st. That the judge erred in admitting in evidence the sworn copy of the certificate;\\n2d. That he erred in admitting in evidence the exemplified copy of the certificate;\\n3d. That he erred in charging the jury that if plaintiffs had made themselves partners as to third persons, they had in fact become general partners, and were entitled to sue as such.\\nH. K. Clarke, and S. T. Douglass, for plaintiff in error;\\n1. A writing dejwsited with a public officer does not become a public writing unless such deposit be authorized by law. \\u2014 2 S. & Ii. 23; I A. H. Marsh. 24; 5 Day, 298.\\n2. The certificate of a i^iblic officer is not admissible in evidence unless expressly made so by law.\\u2014 3 Bet. 28; 7 Wend. 377; 1 Wash. C. G. 333; 3 Ibid. 529. The j>aper which plaintiff below desired to prove, not having been recorded, of course it can not be urged that a copy of it could be an exemplification of any \\u201coffice book\\u201d under the act of Congress. Nor are files, \\u2014 papers filed, but not recorded \\u2014 records.\\u2014 3 Denio, 238; 3 Bouv. Inst. 370.\\n3. The agreement to form a special partnership between plaintiffs, did not tend to prove the formation of a general partnership. The two things are radically different, and proving the one, proves in the most enphatic manner that they had not made an agreement for the other.\\n4. If testimony be iuprojjerly admitted which may have influenced the verdict, the judgment rendered on such ver, diet will be reversed. The Court will not inquire whether there was sufficient proof in the case of a general partnership without the certificate. It is enough to know that the jury were allowed to consider proofs which were calculated to mislead them. \\u2014 3 Wend. 418; 11 Ibid. 83; 1 Dana, 155; Ibid. 502; 2 Bibb, 89; II Bonn. 469; 11 Ired, 632.\\n5. A liability as partners does not constitute a partnership in fact.\\u2014 Coll, on Bart. \\u00a7\\u00a778 to 98.\\nJ. M. Howard, and W. Gray, for defendants in error:\\n1. The law of NeAv York provides for the filing, as well as recording, of an agreement for a limited partnership. When filed with the clerk, though not recorded, it becomes subject to his official custody, and no power is given him to part with or remove it. Such being the case, it was, competent to prove its contents by a sworn copy.\\nIt was also competent to prove it by a copy authenticated under the act of Congress of 1804.\\u2014 See Story on Const. 180; 10 Barr, 158. That files belonging in a public-office are public record\\u2019s, see 3 Dane's Abr. 308, et seq.; Bom., B. D., verb. \\u201c BeeordP\\n2. The recording of such an agreement, under the law of New York, operates in favor of the special partners simply as an exemption from, or rather a limitation of, their common law liability to creditors. In the present case, in consequence of the failure to record, the parties had not gone far enough to secure this exemption to the Masons, and the agreement must be therefore viewed as a similar one. would have been viewed if not filed. If acted upon, it indubitably made them partners as to third persons, whether it was recorded or not. The test of the \\u00a1Partnership is, the commimity of interest of the parties in the stock. Such an agreement may not be complete evidence of the existence of a partnership, but was competent to go to the jury.\\n3. The charge of the judge, that if plaintiffs had made, themselves partners as to third persons, they had become general partners, and were entitled to sue as such, is in accordance with the principles of the law of partnership* and with adjudged cases. \\u2014 See Coll, on Part. \\u00a75; 14 Yt., 540; 21 BMcl 433.\", \"word_count\": \"9272\", \"char_count\": \"52798\", \"text\": \"Christiancy J.:\\nThe view we have taken of the question presented by the third assignment of error, renders it unnecessary to. determine those raised by the first and second.\\n' We shall therefore notice the matters covered by the first and second assignments of error only so far as they may tend -to throw light upon the question raised by the third. We think it unnecessary to the decision of the cause to determine whether the copies of the certificates were duly proved as copies, or were admissible as such; because we think the original certificate, with the due preliminary proof of execution, could not, of itself, without evidence almnde, have any tendency to show a partnership of any kind between the plaintiffs. If admissible at all for such a purpose, it must have been in connection with acts of the parties tending to show they had actually gone into business as partners. The only purpose for which such a certificate was authorized by the New York statute was, we think, when the same should be duly recorded, to create a limited partnership under the statute as to third imrsons. We do not think the statute contemplates this as necessarily the agreement or contract of partnership between the parties themselves; certainly not as the only agreement, though doubtless the parties might make it so. But whether the record of this certificate could be admissible evidence for the plaintiffs, for any other purpose than to show a limited partnership restricting the liability of the special partners, may well be questioned; as this would seem to be the only purpose, beneficial to the partners, for which the statute authorized the record. And it is perhaps still more questionable whether the affidavit filed with the certificate, could, if duly authenticated, be admitted for any purpose in favor of the plaintiffs as general partners in this case, to prove the facts set forth in it, any more than if such affidavit had been made on the trial of the cause. But however this may be, the certificate in this case not having been recorded, did not, and was not claimed to, have the effect to create a limited partnership (see PT. JT. JR. 8. Part 2, Title 1, Qhap. 4), and the only natural'and legitimate inference to be drawn from the unrecorded certificate alone, would seem to be that the attempt to create such limited partnership had been abandoned; but we are unable to perceive how this, of itself, without other evidence, could warrant the further inference, or tend in any degree to prove, that the jfiaintiffs had formed a general partnership, or any partnership whatever, or that they had gone into business as partners. It is probably true that this inference of abandonment might have been rebutted by proof of the subsequent acts of the parties, tending to. show they had gone into and carried on business in accordance with its terms; and though the tendency of this evidence might be only to prove them, in some degree, special partners as between themselves, it would, as we shall endeavor to show, be equally available to them in the present suit.\\nIt is also true, that, without the aid, and even in contradiction of the certificate, the plaintiffs might have proved a partnership between themselves, by written or oral proof, by their mode of doing business, joint contribution of capital, participation in profit and loss; or by showing that they actually carried on the business in question ostensibly as partners, and that they recognized each other as partners in the business as between themselves; and it is possible, that such facts might have a greater tendency to prove such partnership when taken in connection with this unrecorded certificate than if considered alone ^without reference to it. The certificate, in this view, might, if properly proved, be admissible as tending to explain such extrinsic facts, and the acts of the parties. But, standing alone, without any extrinsic evidence tending to show that they had actually entered into business as partners, it could not, we think, tend to prove an actual partnership between the plaintiffs; and if no such extrinsic evidence wag given, we think it would have been the duty of the Court to charge the jury that there was no legal evidence from which they were authorized to find the fact of such partnership.\\nThere may have been other evidence bearing upon this point; it Avas conceded on the argument that there Avas some slight evidence of this kind; but the case does not disclose it, and of its precise character we are not informed.\\nBut the partnership was controverted by the defendant; and the charge of the Court on Avhich the third assignment -of error was based, was manifestly, we think, intended to apply, to all the evidence in the ca\\u00e1e bearing upon this question, whatever that evidence might be, and to furnish to the .jury a legal standard for weighing and applying the evidence.\\nThe charge was, that, \\\"If the evidence showed that the plaintiffs had made themselves partners as to third persons, they had, in fact become general partners, and as such were entitled to maintain this action.\\\"\\nWas this charge correct? The plaintiffs had sued jointly for the wheat; they were therefore bound to show a joint right to, or interest in the wheat as between themselves. They sued as partners, and claimed the joint right or interest in no other way. It was necessary, therefore, to prove a partnership which would constitute such joint right or interest. But, though this joint right would depend upon the fact whether they were partners as between themselves, it was in no way material whether, as between themselves, they were general or special partners, or what was the share of each in the capital, or what special stipulations existed between them, not inconsistent with the existence of a partnership. If partners at all as to this wheat, they would have a joint interest in it, and a joint right of action in respect to it; they would be general partners as to third persons. Had they perfected their arrangement for the creation of a limited partnership, the right of action would have vested in one of the partners only, though, as between themselves, they would still have had' a joint interest. But it is the statute alone which gives the right of action to the single partner; and in cases not coming within the statute, it is not competent for partners, by any arrangement between themselves, to vary their right of action against third persons, nor'to give the right to one of their members to bring an action hi his own name against strangers. \\u2014Radenhurst v. Bates, 3 Bing. 470; Clark v. Howe, 23 Me. 560; Davies v. Hawkins, 3 M. & S. 487, and see Horback v. Huey, 4 Watts, 445. Had the Court charged the jury that if they should find that the plaintiffs went into business as partners under and in pursuance of this certificate, and were so in business at the time this transaction occurred, the plaintiffs would be general partners, and entitled to sue as such, the charge would not have been erroneous if the certificate was properly in evidence, because, as to the distinction between general and special partners, it would have been immaterial, and such a charge would substantially have submitted the question whether the plaintiffs were partners as between themselves, and would not have given to the jury a false standard by which to estimate,the evidence. But this is not the fair import of the charge as given, nor could it have been, we think, so understood by the jury.\\nTaking this charge in connection with the request in answer to which it was given \\u2014 and the request maybe looked to for the purpose of understanding the charge, though its refusal is not assigned for error \\u2014 the effect of the charge is to deny the necessity of showing any partnership or joint right as between the plaintiffs themselves, and to instruct the jury that any thing which would make them partners as to third persons, would enable them to sue and recover as such. This was applying the same rule in all respects to the proof of partnership of plaintiffs, as would be applicable had they been sued as partners'. We do not understand this to be the law, especially in a case like the present. Had the plaintiffs held themselves out to defendant as partners, and had he contracted with them as such in respect to this wheat, they might, perhaps, have maintained an action as partners against him for any thing growing out of the contract, without showing that they were strictly partners as between themselves. \\u2014 Bond v. Pittard, 3 M. & W 358. Or if the suit had been upon a written contract made expressly with all the plaintiffs as partners, or upon negotiable paper, endorsed in blank, &c., no partnership, perhaps, need be proved. But here the suit is not upon a contract. The defendant is a stranger to the firm. The name of the firm is that of a single individual. The blank acceptances with which the wheat is claimed to have been purchased, were in the name of Charles D. Gibson alone, and the wheat consigned to his name. There is nothing, therefore, in the name of the firm, or in the transaction connected with the purchase and shipment of the wheat, prima facie, to suggest the idea of a partnership; nor, as an act of the parties, can it tend to prove an actual partnership. No doubt a partnership can be proved in such .a case as well as in ordinary eases, though it woidd require evidence at least as strong as that usually required to establish a partnership between plaintiffs. At least, there is nothing to take the case out of the general rule, that the right of action by partners depends upon the contract of partnership as existing between themselves.\\u2014 Coll. on Part. 3d Am. ed. (by Perkins) \\u00a73, 5, and 6.\\nThe question, whether persons are partners inter se, is to be determined by the understanding and intention of the parties \\u2014 or, in other words, the contract, as between themselves; and no partnership, as between the parties, can be formed without the assent of every member, and his actual intention to become such. But several persons may become partners as to third persons, and liable to be sued as such, by holding themselves out as partners to the world, or to any particular person with whom they may deal, by verbal admissions and declarations, by acts which niay justify third persons in believing them to be partners, and in a great variety of ways, without any actual partnership between themselves, and even contrary to their own express contracts with each other. These are elementary principles in the law of partnership, and hardly require the citation of authorities.\\u2014 See Coll. \\u00a7 78 to 98; Pars. Mer. Law, 166; Bird v, Hamilton, Walk. Ch. 361.\\nThough much of the same kind of evidence usually adduced to prove the partnership of defendants (partnership as to third persons) is often admissible also as tending to show a partnership between plaintiffs (partnership inter se), yet much which would be admissible for the former purpose Would be wholly inadmissible for the latter, such as the naked admissions of the parties; and much, if not most of that which would be equally admissible for either purpose, such as acts of the parties, would have much more decisive weight and significance to prove a partnership against defendants, than to prove the like partnership in their favor if plaintiffs. Mr. Greenleaf in his work on Evidence, vol. 2, \\u00a7483 speaking of evidence to prove partnership of defendants, very properly says: \\\"The utmost strictness of proof is not required; for though, when they sue as plaintiffs, they may well be held to some strictness of proof, because they are conusant of all the means whereby the fact of partnership may be proved, yet when they are defendants, the facts being less known to the plaintiff, it is sufficient for him ^to prove they have acted as partners, and. that by their habit and' course of dealing, conduct and declarations, they have induced those with whom they have dealt to consider them as partners.\\\"\\nThe question of partnership which should have been submitted to the jury was, whether the plaintiffs were partners as between themselves: the question actually submitted, was, whether they had rendered themselves partners as to third persons; the fair import of which is, that if the evidence was such as would be sufficient 'to render them liable' as partners, it was sufficient to enable them to recover as such. The charge submitted a question not properly involved in the cause; it gave the jury an erroneous standard by which to estimate and apply the evidence, and the verdict does not determine the real question involved, because that question was not submitted to them.\\nThe charge was therefore equally calculated to mislead, whether the certificate was properly in evidence or not,\\u2014 whether it was the only evidence of partnership, or was accompanied with other evidence tending to show that plaintiffs had gone into business as partners. It is difficult to conceive any state of the evidence (short of the admission of the partnership) in which this charge would not be calculated to mislead.\\nFor this error, the judgment must be reversed, and a new trial granted.\\nMartin Ch. J. concurred.\\nManning J.:\\nI think the sworn copy of the certificate of partnership was properly admitted to go to the jury. Three objections were taken to it:\\n1st. \\\"That the paper produced by the witness was not a copy of the whole paper filed with the clerk, the certificates of acknowledgment being essential parts of the instrument,\\\" &o.\\n2d. \\\"That if the certificate of partnership was not, in fact, acknowledged by the plaintiffs, then, it not being such a paper as the clerk of Erie county was authorized to receive and file in his office, it was not legally in his custody.\\\"\\nThese objections do not very clearly state what I suppose to be the real objection intended. The first objection would seem to be that the certificates of acknowledgment were a part of the certificate of partnership; and the second, that there was no evidence that the certificate of partnership had been acknowledged. As the certificates of acknowledgment are no part of the certificate of partnership, which is a complete instrument in itself without them, and as the witness stated that certificates of acknowledgment were appended to the original certificate of partnership on file, I suppose the objection intended in each case to be this: That the copy should contain a transcript of the certificates of acknowledgment, to enable the Court to determine whether the acknowledgments were taken by proper officers, and in due form; the objection assuming these facts to be essential to the legal custody of the certificate of partnership by the clerk.\\nThe rule requiring the best evidence to be adduced, refers, not to the weight of evidence, but to its quality, when com pared Avitli other evidence to prove the same fact, in possession -of the party, or Avithin his reach by due process of law. The reason of the rule \\u2014 and it is to that we should look in determining its applicability in a given case- \\u2014 -seems to be, that when superior evidence is attainable, the law presumes a sinister or improper motive in offering secondary evidence. It can not, on principles of ordinary prudence, othenvise account for a party's willingness to hazard his case- on such evidence, when that which is more satisfactory and conclusive is at his command. All suspicion, however, is remoAred, and secondary evidence is allowed, provided it be the next best, when it is shoAvn, to the satisfaction of the Court, that, without any fault of the party, the superior evidence is not to be had. Hence oral eAddence is received of the contents of a bond, or other written contract, after proof of its execution and loss or destruction ; or, if it be in possession of the adverse party, after due notice to produce it on the trial, and its refusal; and when a contract, or other writing, to give it legal effect, is required to bo placed in custody of the law, and to be kept at a particular place, and it is shown to be in such custody, as in the case before us; its non-production, I think, is sufficiently accounted for within the reason of the rule we have been considering, to admit secondary evidence of its contents. \\\"Rules of evidence,\\\" says Thompson J., \\\"are adopted for practical purposes in the administration of justice; and must be so applied as to promote the ends for which they were 'designed.\\\"\\u2014 United States v. Reyburn, 6 Pet. 367.\\nIf the object of plaintiffs had been to prove a partnership under the statute, the form of the acknowledgments, and the officers before whom they were taken, would have been material to enable the Court to determine Avhether the act had been complied with. As the evidence, however, was not offered with that view, but to prove a partnership outside of the statute, the only question was whether a sufficient shoAving had been made to admit secondary evidence. Did the evidence offered for that purpose show the certifi cate of partnership in the legal custody of the clerk of Erie county? I think it did. The law relative to the reception and filing of papers, and the subsequent power of the officer over them, I understand to be this: He may refuse to receive them when they are not properly authenticated, and, if he err in refusing them, the injured party may compel their reception by mandamus: That, when received and filed, they cease to be private papers, and become public records; and. that the officer can not afterwards, by any act of his, divest the public of its interest in, or control over, th.em.. His sub-, sequent powers are those of a custodian only. He can not undo what he has already done. , Such a power would be extremely dangerous, in such an officer, and, if sanctioned by law, would open a door that might be used for the worst off purposes. It was therefore immaterial whether the certiii-. cate of partnership should, or should not, have been received and filed in the first instance, as it was acknowledged, and the requirements of the law seem to have been complied with, in form, if not in substance; for, admitting the officer-erred in receiving it, it was still in his official custody.\\nThe third objection was, the certificate did not tend tQv prove a general partnership. I think it did, and shall notice, this objection more particularly hereafter.\\nThe plaintiffs next offered in evidence, duly authenticated under the act of Congress, a copy of the certificate of part-, nership, with the certificates of acknowledgment, and a copy of an affidavit of Charles D. Gibson, stating that the capital mentioned in the certificate had been paid to the partnership;. the statute requiring such an affidavit to be made and filed, with the certificate. The evidence was objected to, and an exception was taken to the ruling of the court admitting it,.\\n1st. Because the act of Congress of 1804, providing for the authentication of office books, does not extend to \\\"files\\\"\\u2014 to papers \\\" filed, but not recorded.\\\"\\nI have already stated that when contracts, or other writings, to give them a legal effect they would not other wise have, are required by law to be deposited with, and to be kept by, a public officer, they are, when so deposited, in 'custody of the law; that the public has an interest in them; and that they cease to be private papers, and become public property. And when they come in possession of the officer in strict compliance with law, they are, in my opinion, public records within the meaning of the Constitution of the United States, and of the act of Congress of 1804. They are memorials of acts affecting the public, and for that reason are required to be placed in its keeping. The public interest is asserted by the law in requiring the deposit. The act of Congress, it is said, does not extend \\\"to papers filed but not recorded.\\\" I see no ground for the distinction. Enrollment is not essential to a record. The files and journal entries of our courts are the only records we have of their judgments \\u2014 the common law judgment record having been abolished. The objection admits, that if the certificate had been recorded, that is, transcribed into a book, the -transcript Would be a record within the act. When the original is to be permanently left with the officer, and is not deposited for recording only, I see no good reason for the transcript being \\u00a1a record and the original not; or why a copy of the former, Which is itself but a copy, should be better evidence than a copy of the original.\\nThe second objection is, that as the statute of New York required the certificate to be recorded, and it was not, a copy of it Could not be made evidence. Why not evidence? Because it was not recorded, and therefore was no record; and not being a record, could not be exemplified under the act of Congress. Viewed in this light, for I can not see its bearing in any other, this objection is a repetition, in a roundabout way, of the one I have just been considering, and is already answered.\\nThe third and fourth objections were abandoned on the \\u2022Argument.\\nThe fifth objection is \\\"That the acknowledgment of the certificate by Charles D. Gibson and Amasa Mason does not appear to have been made before an officer authorized by the law of New York to take the same.\\\"\\nThe acknowledgment was before a commissioner of deeds,,, who is not one of the officers named in the act authorized to take the acknowledgment. By a subsequent statute, which was in evidence, it might be taken by any officer authorized to take the acknowledgment of conveyances of land; but no.. statute was in evidence showing commissioners of deeds could take such acknowledgments. For that reason, we are asked to reverse the judgment, and send the case back to-the court below for a new trial. If the acknowledgment was not before a proper officer, the certificate is no record 5 and if not a record, it could not be exemplified under the act Congress. The question is of no importance as it respects, the certificate of partnership, for that was already in evidence, and a subsequent error in admitting a second copy would not vitiate the prior evidence. It is important, how-, ever, as it respects the certificates of acknowledgment and the affidavit of Gibson. At first view it seems a little sur-, prising that plaintiffs' attorney, with the Revised Statutes of\\\" New York in his hands, should not have turned to the law-authorizing commissioners of deeds to take acknowledgments;, of conveyances of real estate. But on looking into the bill of exceptions, it is obvious to my mind how the omission occurred. The statute providing for limited partnerships, was the only statute of New York in evidence when the objection, was made and overruled. After the evidence had been re-, ceived, and not before, as appears from the bill of exceptions, the statute was introduced and read in evidence, authorizing the acknowledgment to be taken by officers empowered to take acknowledgments of conveyances of real estate. This,, undoubtedly was supposed at the time to be a complete-answer to the objection, more especially as the name, commissioner of deeds, would of itself seem to indicate the duties of the office, and as no further objection was made. If defendant was not satisfied with it as an answer, he should have renewed Ms objection, varying it to suit the new aspect of the ease, and pointing out particularly the still existing defect, that plaintiffs might obviate it by further testimony, if in their power. Not having done so, he must be considered as having assented to the sufficiency of the evidence for that purpose.\\nThere is another reason, equally conclusive with me, why the judgment should not, on this account, be disturbed. When the error is one for which a new trial will not be granted, there would be an absurdity in reversing the judgment. In Duncan v. Duboys, 3 Johns. Cas. 125, the Court refused to grant a new trial because the printed statute book was read in evidence of a private act, when, from an exemplification of the act, it appeared the printed book was correct. In High v. Wilson, 2 Johns. 46, which was an action of trespass for taking goods, defendant justified as sheriff, under an execution against one Blanchard. On the trial it was objected, that defendant, to make out a justification under the execution, must prove the judgment on wMch the execution issued. The objection was overruled; and a verdict having been rendered for defendant, plaintiff moved for a new trial. On the motion, the judgment record was produced, and the Court refused a new trial, although the judge erred in admitting the execution in evidence without proof of the judgment. \\u2014 See Burt v. Place, 4 Wend: 591; Watson v. Delafield, 2 Cai. 224. In these cases the admissibility of the evidence depended on the existence of a record that was not produced and proven at the trial; and the subsequent motion for a new trial failed, on the record being produced, as the truth of it, had it been used on the trial, could not have been controverted. In the case before us the objection is, that the evidence should not have been permitted to go to the jury, because the plaintiffs did not produce a statute of the state of New York authorizing commissioners of deeds to take acknowledgments of conveyances of real estate. May not this Court now look into the statutes of that state to see whether there is such a law? I have no hesitation in saying we may. We have a statute declaring' printed copies of the statutes of sister states, \\\"if purporting to be published under\\\" their authority, \\\"shall be admitted in all courts, and in all proceedings within this state, as prima facie evidence of such law.\\\" \\u2014 Comp. JO. \\u00a74315. The question, If purporting to be published under authority of the state, is a question for the Court to decide, upon inspecting the printed copy. It is not, under the statute, a question of fact for the jury; and it seems to me we may look into the statutes of New York to decide a question of law, made on the trial under a statute of that state, in the same way we would look into our own statutes to decide a question raised under them. When the statute is one of a sister state, it should be produced and read on the trial for the information of the Court, which is not supposed to know the statute laws of other statesbut if it is not, and the decision is in conformity with the statute, it is not a good ground for reversing the judgment. We are as well prepared now, after having looked into the statutes of New York, to decide a commissioner of deeds could take the acknowledgment, as we would be had the statute been read on the trial; and under such circumstances, it would be sacrificing substance to form to send the case back for a new trial.\\nThe sixth and last objection is, that \\\"there is no provision in the law of New York by which a limited partnership can be converted into a general partnership, until after the record of the certificate and affidavit; and, as these papers are shown not to have been recorded, no limited partnership could have been proved; hence the papers offered do not even tend to prove the existence of a general partnership between the plaintiffs.\\\"\\nIt is a sufficient answer to the first part of this objection, to say that the evidence was not offered to prove a limited partnership, or that such a partnership had afterwards become a general partnership. The latter part of the objection \\u2014 that the papers do not tend to prove a general partnership \\u2014 is a repetition of the third objection taken to the sworn copy; which I have already answered in part, and shall hereafter liotiee more fully.\\nThree exceptions were taken to the charge of the Court. The first was waived on the argument. The other two are as follows:\\nThe Court was asked to charge the jury, \\\"That in order to recover as plaintiffs, the plaintiffs must show a right as between themselves, to do so, and are hound by the agreement made among themselves.\\\" The Court declined so to charge, but charged the jury that if the evidence showed that the plaintiffs had made themselves partners as to third persons, they had, in fact, become general partners, and, as such, wore entitled to maintain then action. To which refusal and charge, the defendant excej>ted.\\nThe error assigned on this part of the record is, that the circuit judge erred in charging the jury that if the plaintiffs had made themselves liable as partners to third persons, they had become partners in fact, and were entitled to sue as such.\\nThe charge was erroneous, in stating that if plaintiffs had made themselves liable as partners to third persons, they might sue as partners. To sustain an action as partners, plaintiffs must be partners in fact. A partnership must actually exist between them, and they must have a joint interest in the subject-matter of the suit. Two or more persons Who are not partners, by holding themselves out to the world as partners, will make themselves liable as partners to persons deceived thereby into dealing with them as partners. Though not partners in fact, the law, in such circumstances; to prevent fraud, imposes on them the liability of partners. The evidence of a partnership in such cases is not of a positive and direct character, but circumstantial only \\u2014 that is, it is not of a partnership in fact, but of circumstances from which a partnership may be inferred \\u2014 and the evidence may be such as not only to warrant a verdict of partnership as to third persons, but of a partnership in fact; the only difference being, the evidence should be stronger to find a partnership in fact, than to warrant a verdict of partnership as to third persons only. There was nothing in the character of the evidence before the jury, so far as it appears from the bill of exceptions, calling for this discrimination in the charge of the Court.\\nThe error was in charging the jury on a rule of law having nothing to do with the case. The evidence was of a partnership in' fact, and not of circumstances only from which a partnership might be inferred. I do not see how the jury on this part of the case, could have rendered a different verdict from the one they did. The evidence consisted of a written admission of the partnership, signed by all of the plaintiffs, and acknowledged by them before an officer authorized by law to take the acknowledgment. It states they had formed a limited partnership, under the name or firm of Charles D. Gibson, and that William Mason had contributed fifteen thousand dollars capital, and Amasa Mason ten thous- and dollars. It also states the business to be transacted by the partnership, and that the partnership was to commence on the 10th of March, 1853, and to terminate on the 10th of March, 1858. The certificate is dated on the 7th of Mar oh, 1853. It was acknowledged by William Mason on the 10th of that month \\u2014 the day the partnership was to commence; and by Amasa Mason, and Gibson, on the 14th, or four days afterwards. On the last mentioned day, Gibson made an affidavit that the capital mentioned in the certificate had actually, and in good faith, been paid in cash; and three days thereafter, that is, on the 17th day of March, the certificate and affidavit were filed with the clerk. If these acknowledgments and acts of the plaintiffs \\u2014 all of which took place long before the transaction giving origin to the present suit \\u2014 \\u2022 are not evidence in their favor, it is not easy to comprehend _the legal principle admitting articles of partnership as such evidence.\\nIt is objected that the evidence consists -wholly of plaintiffs' admissions; and that, although such admissions are evidence between themselves, as well as in favor of third persons, of a partnership, they are not evidence in their favor against third persons. The admissions are something more than dry, naked declarations: they are a part of the res gestae \\u2014 part and parcel of acts done by plaintiffs, in pursuance of law, with a view to limit the liability of two of the partners. They are found embodied in a certificate which the law requires shoidd eim brace them, and which, without them, would be nugatory, Starkie on Evidence, vol. 1, p. 52, says: \\\"In general, where the evidence is offered as a mere fact which is connected with the matter in dispute, and not with a view to affect the party, otherwise than as the actual existence of the fact affects the nature of the transaction itself; then, although it was a transaction between others, yet, as a mere fact, and part of the res gestee, it is evidence. Suppose, for instance, that goods consigned by A to B are injured by the defendant while they are in the hands of the carrier; in an action for the wrong, brought either by A or B, according to the circumstances, it would be competent to either of them, being plaintiff, to establish Ids right of property in the goods, by proof of such an agreement between them, as either loft the right of property and of action in himself, or vested it in him, by the delivery to the carrier; this would bo, it is true, nothing more than an agreement between A and B to which the defendant was not privy, but it would be evidence against him, not as concluding any right of his without his assent, but as affecting the nature of the transaction itself, and showing to whom the injury was done.\\\"\\nIf the certificate was to be treated as an admission only, I shoidd still hold it competent evidence for plaintiffs of a partnership. An admission by A that he and B are partners, is evidence against A of such partnership in favor of B or a third person, but it is not evidence against B. If it were, it would be in A's power to subject B and his property to the payment of A's debts;- \\u2014 -nay, more, it would enable A to claim an interest in B's property, by declaring the existence of a partnership between them. The sole object of the rule is to protect B against the dishonesty of A. Now it is clear, the reason of the rule does not apply to admissions made by both A and B, or by all of the partners; and where the reason of a rule of evidence ceases, the rule itself is of no force. To apply it in such a case would impede the administration of justice, by throwing as an obstacle in its way what was intended only to rid it of impurities. Such an admission is evidence of a partnership in fact, because made by all of the partners \\u2014 the admission of each one concluding him individually; and \\u00e1 partnership in fact, is a partnership as to all the world. There is no such thing as a partnership between the parties themselves, and not as to third persons. It is not essential to a partnership that it should be public, or known to the world. All rights acquired, and all debts incurred, by it, are partnership rights and liabilities, whether the persons dealing with it had notice of the partnership or not. If ignorant of its existence at the time, a subsequent discovery works no injury to them: if creditors, it gives them a larger number of persons to whom they may look for payment: if debtors, their liability is not increased, as it is matter of no moment to them whether a sum of money they are owing, when paid, goes to one or more persons, so long as they can not be called on to pay a second time.\\nIn the case before us, the partnership business was to be carried on in the name of Gibson, and the wheat in controversy was purchased in his name. Admitting the Avheat belonged to him individually, the judgment record will bo a bar to any future action by him, as he is one of the plaintiffs.\\nWhen several persons are jointly interested in a contract the action must be brought in the name of all, or the plaintiffs will be nonsuited on the trial. It was to bring themselves within this rule of law \\u2014 to show a joint interest,in the wheat between themselves, and not their right to it against defendant, that made it necessary for plaintiffs to prove the partnership. The question of partnership affects defendant in no way except as to the form of the remedy against him; viz. whether the action should be in the name of Gibson alone, or of all the plaintiffs. It has nothing to do with the right to the wheat between him and plaintiffs; and, however determined, makes nothing against his right, or that of any other person, to the wheat. It is a question of right as to the wheat between the plaintiffs alone; and the right being established as between them, the form of the remedy follows as a necessary incident. Hence, \\\"a father who holds out to the world that his son is his partner, and who sends bills and signs receipts in their joint names, in an action brought in his own name, is not precluded from proving that his son is not a partner.\\\"\\u2014 Glossop v. Colman, 1 Stark. 25 (2 E. C.L. 279); Kell v. Nainby, 10 B. & C. 20 (21 E C. L. 17).\\nDid the certificate tend to prove a general partnership? At common law, all partners are alike liable for the debts of the firm. The only difference between, a common law partnership and a limited partnership under the act (for they are both partnerships) is, that in the latter the liability of some of the partners is limited to the capital invested by them in the partnership. This is a personal privilege, conferred by the statute when its provisions have been strictly complied with, but not otherwise. In the case before us the act was but in part complied with. The cer, tifieate was made and acknowledged, and, with the requisite affidavit, was filed. But it was not recorded. Why it was not, does not appear. It may have been from various causes; as ignorance of the law requiring it to be recorded, or negligence in not paying the clerk for making the record, or a subsequent determination not to claim the benefits of the act. From whatever cause, it did not put an end to the partnership, but left it as if nothing had been done under the act \\u2022 \\u2014 \\u2022 an unlimited partnership, or partnership at common law. Gibson, who was to be the general partner, and in whose name the business was to be done, states, in his affidavit filed with the certificate, that each of the other partners had \\\" actually and in good faith paid in cash\\\" the sum named in the certificate to have been contributed by him. The partnership was then launched, if not before, and there is no evidence of a subsequent dissolution.\\nAs the error in the charge was on a point of law not involved in the case, and could not have injured the defense, I think the judgment should be affirmed.\\nCampbell J. did not sit in the case, having been counsel for one of the parties.\\nJudgment reversed.\"}" \ No newline at end of file diff --git a/mich/1928830.json b/mich/1928830.json new file mode 100644 index 0000000000000000000000000000000000000000..0eb44127669f61cbb997623df8fb75bb86e6eeb2 --- /dev/null +++ b/mich/1928830.json @@ -0,0 +1 @@ +"{\"id\": \"1928830\", \"name\": \"People v. Hunt\", \"name_abbreviation\": \"People v. Hunt\", \"decision_date\": \"1977-03-24\", \"docket_number\": \"Docket No. 58454\", \"first_page\": \"918\", \"last_page\": \"918\", \"citations\": \"399 Mich. 918\", \"volume\": \"399\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T00:06:07.732156+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"People v Hunt.\", \"head_matter\": \"People v Hunt.\\n(Docket No. 58454.)\\nCase below, Court of Appeals No. 20283, order of February 11, 1976.\\nRobert M. Hunt, in propria persona, appellant.\", \"word_count\": \"31\", \"char_count\": \"193\", \"text\": \"Request for appointment of counsel denied.\"}" \ No newline at end of file diff --git a/mich/1931135.json b/mich/1931135.json new file mode 100644 index 0000000000000000000000000000000000000000..d1ce6f440889466a7bf1d8e59b8bc211fac0dae4 --- /dev/null +++ b/mich/1931135.json @@ -0,0 +1 @@ +"{\"id\": \"1931135\", \"name\": \"ERLANDSON v. GENESEE COUNTY EMPLOYEES' RETIREMENT COMMISSION\", \"name_abbreviation\": \"Erlandson v. Genesee County Employees' Retirement Commission\", \"decision_date\": \"1953-06-22\", \"docket_number\": \"Docket No. 17; Calendar No. 45,596\", \"first_page\": \"195\", \"last_page\": \"204\", \"citations\": \"337 Mich. 195\", \"volume\": \"337\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T22:37:40.541061+00:00\", \"provenance\": \"CAP\", \"judges\": \"Dethmers, C. J., and Butzel, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.\", \"parties\": \"ERLANDSON v. GENESEE COUNTY EMPLOYEES\\u2019 RETIREMENT COMMISSION.\", \"head_matter\": \"ERLANDSON v. GENESEE COUNTY EMPLOYEES\\u2019 RETIREMENT COMMISSION.\\n1. Counties\\u2014Employees\\u2019 Retirement Commission.\\nThe determinations of county employees\\u2019 retirement commission: as to who are or are not members of a county retirement system are adjudications upon benefits and privileges of those who seek membership and constitute action of a judicial nature (PA 1851, No 156, \\u00a7 12a, as amended by PA 1945, No 68).\\n2. Constitutional Law\\u2014Determinations oe Questions or Right,. Obligation, or Property.\\nAn act which determines a question' of right, obligation, or property, as the foundation upon which it proceeds, is to that extent judicial.\\n3. Counties\\u2014Employees\\u2019 Retirement Commission\\u2014Certiorari.\\nThe decision of a county employees\\u2019 retirement commission as . -to amount of service credit to which county employees were entitled is a determination which is reviewable solely by certiorari (PA 1851, No 156, \\u00a7 12a, as amended by PA 1945, No 68).\\n4. Certiorari\\u2014Scope oe Review;.\\nAppeals in the nature of certiorari are limited in seope, .as questions of fact may not be reviewed, disputed facts determined or weight of evidence reviewed; it being permissible to consider only errors of law.\\n5. Same\\u2014Jurisdiction-\\u2014Scope oe Review., -\\nThe right of inquiry which may be exercised upon common-law certiorari is not limited to the jurisdiction of the inferior tri bunal or body over the particular subject matter, but extends to the manner in which that jurisdiction is exercised and readies all errors of law.\\nReferences eok Points in Headnotes\\n[1,2] 10 Am Jur, Certiorari \\u00a710; 11 Am Jur, Constitutional Law \\u00a7 202; 14 Am Jur, Courts \\u00a7 160.\\n[3] 40 Am Jur, Pensions \\u00a7 39.\\n[4,5,8] 10 Am Jur, Certiorari \\u00a7\\u00a7 5, 13, 19.\\n[7] 10 Am Jur, Certiorari \\u00a7\\u00a7 3, 19.\\n[9-11] 50 Am Jur, Statutes \\u00a7 261 e't seq_.\\n[11] 40 Am Jur, Pensions \\u00a7\\u00a7 15, 23.\\n6. Same\\u2014Appellate Court\\u2019s Examination of Evidence.\\nAn appellate court examines the evidence on certiorari not to determine whether the probabilities preponderate one way or the other but simply to determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts proved, whether that inference would or would not have been drawn by the appellate tribunal.\\n7. Same-hRecord\\u2014Action of Appellate Court.\\nReview on certiorari is confined to the matters shown in the record and the court is limited in its decision to affirmation, reversal or quashing of the proceedings reviewed.\\n8. Same\\u2014Jurisdiction\\u2014Circuit Court\\u2014County Employees\\u2019 Retirement Commission\\u2014Circuit Court Stenographers.\\nAction of circuit court on review by certiorari of determination of county employees\\u2019 retirement commission as to when plaintiff circuit court stenographers first came under the retirement act in referring the matter to the commission for purpose of bringing them under the act as of the date of their first employment as assistant circuit court stenographers and directing the commission to ascertain amount of participation the petitioners were entitled to was not within the relief permitted on review by certiorari (PA 1852, No 156, \\u00a7 12a, as amended by PA 1945, No 68).\\n9. Statutes\\u2014Definitions.\\nIt is within the legislative power to define the sense in which' words are employed in a statute.\\n10. Same-\\u2014Definitions.\\nA statutory definition supersedes. the commonly accepted, dictionary, or judicial definition and where an act passed by the legislature embodies a definition, it is binding on the courts.\\n11. Counties\\u2014Circuit Court Stenographers\\u2014Employees\\u2019 Retirement System.\\nPlaintiffs who, as assistant circuit court stenographers, received \\u25a0 their salaries from the official stenographer until eventually appointed as official additional stenographers, were not employees of the county entitled to participate in county employees\\u2019 retirement system as term \\u201cemployees\\u201d is defined in pertinent statute and county ordinance (CL 1929, \\u00a7 13659; CL 1948, \\u00a7 691.306; PA 1851, No 156, \\u00a7 12a, as amended by PA 1945, No 68; Genesee County Employees\\u2019 Retirement Ordinance, \\u00a7\\u00a72 [t], 16 [8]).\\nAppeal from Genesee; Gadola (Paul V.), J.\\nSubmitted April 16, 1953.\\n(Docket No. 17, Calendar No. 45,596.)\\nDecided June 22, 1953.\\nCertiorari by Oscar S. Erlandson and another against Genesee County Employees\\u2019 Retirement Commission to review order of commission. Order reversed with directions to the defendant. Defendant appeals.\\nReversed and remanded for affirmance of order of defendant.\\nNeither cut & Neithercut, for plaintiffs.\\nJohn G. David, Genesee County Corporation Counsel (Richard C. Fruit, of counsel), for defendant.\", \"word_count\": \"2889\", \"char_count\": \"17831\", \"text\": \"Adams, J.\\nThis is an appeal from a judgment entered by the circuit court in Genesee county on an appeal by writ of certiorari from a decision of the Genesee county employees' retirement commission, defendant and appellant.\\nFor some years prior to February 1, 1949, Oscar S. Erlandson and Leona Shively, plaintiffs and appellees, were assistant circuit court stenographers for the seventh judicial circuit (Genesee county), acting by appointment of the official stenographer of the Genesee circuit under the provisions of CL 1948, \\u00a7 691.305 (Stat Ann \\u00a7 27.335), which reads:\\n\\\"Sec. 5. Every stenographer may, subject to the approval of the circuit judge, appoint 1 or more assistants, who shall take and file the oath of office as prescribed in section 3, and shall have power to act in the place of said stenographer, and whose compensation shall be paid by the stenographer. The stenographer or the circuit judge shall have power to revoke such appointment at any time!\\\"\\n\\u2022' On December 20, 1945, the board of supervisors of Genesee county adopted the Genesee county employees' retirement ordinance under authority granted by PA 1851, No 156, \\u00a7 12a, as added by PA 1943, No 249, and amended by PA 1945, No 68. The ordinance created the Genesee county employees' retirement commission,, provided for contributions from county general funds and from employees to a retirement fund, prescribed the powers and duties of the commission, and established retirement benefits for employees. It became effective on January 1, 1946.\\nPA 1851, No 156, as amended in 1945, defines an employee in the following manner:\\n\\\"The term bounty employee,' when used in this section is' hereby defined to include all persons who receive more than 50 per cent of all compensation for personal services, rendered to governmental units, from county funds' or county road funds, except persons engaged for special services on a contract or fee basis.\\\"\\n. The county' ordinance likewise defined an employee : .\\n\\\"Sec. 2(t): 'Employee' shall' mean any person who receives 50 per cent or more of all compensation- for personal services, rendered-.to governmental units,-from the funds of Genesee county or of the several offices, boards and departments .thereof; including the board of county road commissioners.\\\"\\n\\\"Sec. 16(c): The membership of the retirement system shall not include (1) any person engaged for special services on a contract or fee basis.\\\"\\nThe seventh judicial circuit, by law, has 3 circuit judges'. The 3 judges were served by 1 official stenographer (CL 1929, \\u00a7 13659 [Stat Ann \\u00a7'27.181]) and 2 assistants. As previously stated, the 2 assistants were appointed by the official stenographer and their compensation was paid by him.\\nIn 1947, CL 1929, \\u00a7 13659 (Stat Ann \\u00a7 27.181), was repealed by the legislature with the result that CL 1948, \\u00a7 691.306 (Stat Ann \\u00a7 27.336), became operative in Genesee county. This section provides for the appointment by the governor of additional stenographers for all judges in the circuit and, pursuant thereto, the 2 plaintiffs were appointed circuit court stenographers on February 1, 1949. Thereafter, their salaries were paid from the general funds of Genesee county. At substantially the same time, they became members of the retirement system.\\nSubsequent to the enactment of the retirement ordinance but prior to their appointment as stenographers, plaintiffs petitioned the retirement commission to be made members of the retirement system and to be given service credit for the period that each had served as an assistant court stenographer, which in the case of plaintiff Erlandson was 28 years, and in the case of plaintiff Shively, 21 years. This service credit was significant in that the ordinance provided for retirement benefits in proportion to the period of service of each employee.\\nNo action on plaintiffs' petition was had by the commission until July 11, 1949, when they determined that the plaintiffs' should have their service credit computed from February 1, 1949, the date of their appointment as circuit court stenographers and likewise the date when their salaries were first paid directly from county funds. This determination by the commission was made pursuant to authority granted under section 16, subsection d, of the county ordinance which state's:\\n\\\"In all case of doubt, the retirement commission shall decide who is a member of the- retirement sys tem within the meaning of the provisions of this ordinance.\\\"\\nFollowing the decision of the commission, plaintiffs petitioned the circuit court of Genesee county for leave to file a writ of certiorari, and upon the granting of such leave, a petition for writ of certiorari was filed setting forth the facts as herein stated and attaching a copy of the ordinance. A writ of certiorari issued, and an answer was returned by the commission. In the return the commission made reference to the statute under the provisions of which plaintiffs were appointed and pointed out that prior to February 1, 1949, salaries of the assistant stenographers were paid by the official court stenographer as provided by law. The answer \\u2022 further stated that the record did not show the amount of salaries paid to petitioners, that no contributions to a reserve for retirement benefits had been received from either the county or from the plaintiffs for their particular benefit, and that sufficient facts had not been presented on the record from which a computation of those contributions \\u2022 could be made.\\nOn April 4, 1951, a judgment was entered by the circuit court to the following effect:\\n\\\"The matter is referred to the Genesee county retirement commission, the respondents herein, to ascertain the amount of participation petitioners are entitled to, and to immediately bring them under the retirement act as of the date of their first employment as assistant circuit court stenographers for this circuit.\\\"\\nFrom that judgment defendant takes this appeal.\\nDefendant questions the jurisdiction of the circuit court to review the decision of the Genesee county retirement commission on certiorari. Section 16, subsection d, of the county ordinance, pre viously quoted herein, grants authority to the commission in all cases of doubt, to decide who is a member of the retirement system within the meaning of the provisions' of the ordinance. No method of appeal from their decision is provided. Their determinations of those who are or are not members of the retirement system are adjudications upon benefits and privileges of those who seek membership and their action is judicial in nature.\\n\\\"Whenever an act determines a question of right, obligation, or property, as the foundation upon which it proceeds, it is to that extent judicial.\\\" 10 Am Jur, p 534, \\u00a7 10.\\n\\\"If the civil service system as set up by the people of Detroit is to be effective, there should be finality to the findings made by the commission and review by the courts should be limited to the narrow confines of the office of the writ of certiorari.\\\" Public Welfare Commission of Detroit v. Civil Service Commission of Detroit, 289 Mich 101.\\nConfirming that opinion, this Court, when asked to rule on the propriety of a decision of the Wayne county civil service commission, said:\\n\\\"However, so that an erroneous inference may not arise from our present opinion, we note, and we trust with finality, that under the record in the instant case wherein the commission acted in the exercise of its vested powers, the sole remedy available to plaintiff was certiorari.\\\" Bischoff v. County of Wayne, 320 Mich 376, 394.\\nAppeals in the nature, of certiorari are limited in scope. Questions of fact may not be reviewed. Brown v. Blanchard, 39 Mich 790. Disputed facts cannot be determined. Hyde v. Nelson, 11 Mich 353. Nor can the weight of evidence be reviewed. Linn v. Roberts, 15 Mich 443. Only errors of law may be considered.\\n\\\"A review cannot be had by writ of error in these special or extraordinary proceedings, not according to the course of the common law. The power of reviewing upon common-law certiorari even the judicial proceedings of inferior tribunals and bodies, which are not according to the course of the common law, has long been exercised. The right is not limited to an inquiry as to jurisdiction of the inferior tribunal or body over the particular subject matter, but extends to the manner in which that jurisdiction is exercised. It may reach all errors of law.\\\" Hartz v. Wayne Circuit Judge, 164 Mich 231, 234.\\n\\\" 'The office of a certiorari is not however to review' questions of fact, but questions of law. And in examining into the evidence the appellate court does so not to determine whether the probabilities preponderate one way or the other but simply to determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts proved, whether that inference would or would not have been drawn by the appellate tribunal.' \\\" Jackson v. People, 9 Mich 111 (77 Am Dec 491), as quoted with approval in Carroll v. City Commission of City of Grand Rapids, 266 Mich 123.\\nReview on certiorari is confined to the matters shown in the record (Whitbeck v. Common Council of the Village of Hudson, 50 Mich 86) and the court is limited in its decision to affirmation, reversal or quashing of the proceedings reviewed.\\n\\\"It was there held that certiorari is not a flexible remedy, but permits only affirmation, reversal or quashing of the proceedings reviewed.\\\" Bettendorf v. F. W. Woolworth Co., 329 Mich 409.\\nWe conclude that certiorari was the appropriate and exclusive means of reviewing the determination of the Genesee county employees' retirement commission, but that in such review the circuit court could only affirm or reverse the commission's decision.\\nThe judgment of the circuit court exceeds the limits prescribed for reviews in the nature of certiorari. It. refers the matter to the commission for the purpose of bringing\\u00bb the plaintiffs under the retirement act as of the date of their first employment as assistant circuit court stenographers and further directs the commission to ascertain the amount of participation that petitioners are entitled to. While the judgment, in effect, reverses the decision of the commission in its finding that the plaintiffs' service credit should be computed from February 1,1949, it goes beyond mere reversal to require affirmative action by the commission. It establishes larger service credit and directs a determination of the extent of plaintiffs' participation in the system. The judgment as entered' is not within the permitted relief available on a writ of certiorari.\\nAs we have said, the reviewing court on certiorari looks only to the record of the proceedings in the lower tribunal and may consider only errors of law which are apparent in that record. From the record before us we are informed that the plaintiffs were appointed under the provisions of CL 1948, \\u00a7 691.305 (Stat Ann \\u00a7 27.335), which states that their compensation \\\"shall be paid by the stenographer.\\\" In the commission's return to the petition, it is admitted that plaintiffs' compensation prior to February 1, 1949, was paid by the official stenographer. That statement is nowhere denied. We further find that section 2, subsection t, of the Genesee county retirement ordinance, which is attached to the petition, defines an employee entitled to membership in the' system as follows:\\n\\\" 'Employee' shall mean any person who receives' 50 per cent or more of all compensation for personal services, rendered to governmental units, from the funds of Genesee county or of the several offices, boards and departments thereof, including the board of county road commissioners.\\\"\\nThe definition in the ordinance closely follows the statutory definition found in the enabling legislation.\\n\\\"It is within the legislative. power to define the sense in which words are employed in a statute.\\\" 50 Am Jur, p 253, \\u00a7 261.\\n\\\"A statutory definition supersedes the commonly-accepted, dictionary, or judicial definition. Where an act passed by the legislature embodies a definition, it is binding on the courts.\\\" 50 Am Jur, p 254, \\u00a7262.\\nIt is thus apparent from the record that the plaintiffs did not receive 50% or more of their personal compensation for services rendered governmental units from the funds of Genesee county or of the several offices, boards or departments thereof. Their compensation, by law and as a matter of record, was paid to them by the official stenographer.\\nWe conclude, therefore, that the plaintiffs' employment prior to February 1, 1949, did not bring them within the definition of \\\"employee\\\" as used in the Genesee county retirement ordinance and as used in the enabling legislation, and that the circuit judge was in error when he held that they were entitled to service credits from the date of their original appointments as assistant stenographers.\\nThe order of the circuit court is vacated. The cause is remanded to the circuit court with direction to affirm the order of the Genesee county employees' retirement commission dated July 11, 1949. Costs to appellants.\\nDethmers, C. J., and Butzel, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.\\nSee CL 1948, \\u00a7 46.12a (Stat Ann 1945 Cum Supp \\u00a7 5.333[1]).\"}" \ No newline at end of file diff --git a/mich/1932092.json b/mich/1932092.json new file mode 100644 index 0000000000000000000000000000000000000000..f2d9d373d855ef8dcd8aaf7beedfbf7775af5270 --- /dev/null +++ b/mich/1932092.json @@ -0,0 +1 @@ +"{\"id\": \"1932092\", \"name\": \"Ward et al., plaintiffs in error, vs. Willson, defendant in error\", \"name_abbreviation\": \"Ward v. Willson\", \"decision_date\": \"1853-01\", \"docket_number\": \"\", \"first_page\": \"1\", \"last_page\": \"11\", \"citations\": \"3 Mich. 1\", \"volume\": \"3\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T20:31:16.274313+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ward et al., plaintiffs in error, vs. Willson, defendant in error.\", \"head_matter\": \"Ward et al., plaintiffs in error, vs. Willson, defendant in error.\\nIn a complaint for an attachment under the boat and vessel law, (ch. 122, E. S.) before an officer authorized to perform the duties of a Judge of the Supreme Court at Chambers, it is not necessary to aver that at the time of the application the vessel is within the county where the application is made. Otherwise where such application is to a Judge of a Court of Eocord; in which case the application must be made in the county where the vessel is.\\nIt is not necessary in order to confer jurisdiction upon the officer before whom a complaint under the boat and vessel law \\u00cd3 made, to sgt forth in the complaint that the services, &c., for which the claim is made, were rendered in this State.\\nIn a complaint under the boat and vessel law, a description of the vessel as \\u201ca vessel navigating the waters of this State,\\u201d is equivalent to the averment required by the law, that such vessel is used in navigating, &c.\\nTo a declaration on a bond given under the provisions of the boat and vessel law, there was a plea of general issue and a notice therewith, that defendants would show in mitigation and recoupment of plaintiffs\\u2019 demand, that he fraudulently conducted himself while rendering the services claimed for, and injured defendant\\u2019s property. Proof that plaintiff while employed as cook on the boat, willfully destroyed the hose of the boat, is inadmissible to sustain the claim, such matters having no connection with the employment of plantilf. Such proof covering the whole time of plaintiffs\\u2019 service, is equally inadmissible to show a forfeiture of wages; even if the doctrine of forfeiture prevailed.\\nError to Wayne Circuit Court.\\nA suit was originally brought by defendant in error before a justice of the peace to recover for work and labor performed on th,e steamboat Buby. The defendant in error having made a complaint before the Becorder of the city of Detroit, ex officio Circuit Court Commissioner, in pursuance of Ch. 122, B. S. 1846, entitled \\u201c of proceedings for the collection of demands-against ships, boats and vessels,\\u201d caused the boat to be attached for the claim, and the plaintiffs in error in order to release the' boat executed a bond under the provisions of Sec. 13 of the statute. This action is brought on the bond.\\nOn the trial before the justice, the plaintiffs in error pleaded the general issue, and the defendant in error offered in evidence the bond and. also the proceedings had before the commissioner; to which the plaintiffs in error objected, for the reason that the complaint does not state:\\n1. That the services were rendered in the State of Michigan;\\n2. That the boat, at the time of rendering the service, was* used or intended to be used in navigating the waters of said State;\\n3. That said boat, at the time said complaint was made,, was within the county of Wayne.\\nThese objections were overruled, and the bonds and proceedings were read. The defendants below during the trial, asked a witness introduced by them, the question, \\u201c Do yon know of plaintiff\\u2019s (the defendant in error) having whilst en gaged on said boat wilfully cut and destroyed the hose belonging to said steamboat ? \\u201d The justice would not allow this question, and judgment was rendered against plaintiffs in error for damages and costs. The cause was removed by certiorari to the Wayne Circuit Court, where the judgment was affirmed. The defendants below bring this writ of error. The errors assigned are set forth in the opinion of the Court.\\nDavidson & Holbrook, for plaintiffs in error.\\nD. McGibbon, for defendant in error.\", \"word_count\": \"3610\", \"char_count\": \"20473\", \"text\": \"By the Court,\\nGreen, P. J.\\nThe first question which presents itself for consideration in this case, is whether the application made by the defendant in error to the Circuit Court Commissioner, for the purpose of obtaining a warrant against the steamboat Buby, was sufficient to confer jurisdiction upon the officer.\\nSection 1, of chapter 122, of the Eevised Statutes, provides that \\\" every ship, boat, or vessel, used in navigating the waters of this State, shall be subject to a lien thereon.\\n\\\" 1. Eor all debts contracted by the master, owner, agent, or consignee thereof, on account of supplies furnished for the use of such ship, boat, or vessel: on account of work done, or materials furnished by mechanics, tradesmen or others, in or about the building, repairing, fitting, furnishing or supplying such ship, boat or vessel,\\\" &e.\\nSection 2 authorizes any person having any such claim or demand as is specified in the preceding section, to make application to any officer authorized to perform the duties of a Justice of the Supreme Court at Chambers, or to any Judge of a court of record' in the county within which such ship, boat, or vessel shall then be, for a warrant to enforce the lien of such claim or demand, and to collect the amount thereof.\\nThe 3d section provides that \\\"such application shall be in writing, and shall specify the particulars of such demand, and in whose favor the same accrued, and the amount due the \\u2022creditor or claimant, over and above all payments and discounts as near as may be, and shall be verified,\\\" &c.\\nThe complaint or application in this case was in writing, and contains all the particulars required by the express language of the statute, and is unquestionably sufficient to confer jurisdiction upon the commissioner, unless it was necessary to go beyond the language, and state what the statute has-been construed to imply in order to constitute the claim a lien upon the boat, that the contract was made within this State, or the services rendered within it:\\nThe application was as follows:\\nTo J. H. Bagg, Becorder of the city of Detroit, and eco officio Circuit Court Commissioner for the county of Wayne.\\nSamuel Willson complains and says, that \\\" he has a claim against the steamboat Nuby, a vessel navigating the waters of the State of Michigan, amounting to the sum of fifty-eight dollars and one cent, and accrued in favor of the said complainant, the particulars whereof are for services rendered on said vessel as cook thereon, during the fall of 1851, and complainant further saith, the sum of fifty-eight dollars and one cent is justly due the said complainant, over and above all payments and discounts,' as he verily believes.\\\" This complaint was signed by Willson, and verified by his affidavit on the second day of December, 1851.\\nThe counsel for the plaintiffs in error allege that the qomplaint was void, and did not give the officer jurisdiction to issue warrant, because:\\n1. It did not state that the services were rendered within the State of Michigan.\\n2. It did not state that the boat was used in navigating the waters of this State, and\\n3. It did not state that such boat was within the county of Wayne, at the time said complaint was made.\\nIn support of the first proposition, the counsel cited 1 Mich. Reports, 469; 16 Ohio R., 91,178. The ease of the Steamboat Champion vs. Jantzen, (16 Ohio R., 91,) was \\u00e1 suit brought by Jantzen against the steamboat by name, to recover damages occasioned by an alleged assault and battery committed upon him by the mate of the boat. There was no question of jurisdiction arising upon the complaint of the pleadings in the case. On the trial, the plaintiff below to sustain the issue on his part, offered' to prove an assault and battery committed upon him by the mate of the boat, at Ilawesville, in the State of Kentucky, and another at Vicksburgh, in the State of Mississippi. . This proof was objected to on the part of the defendant below, and was admitted by the court. An exception was taken to the ruling of the court admitting the evidence, and the cause went to the Supreme Court on a bill of exceptions, when it was held that water craft navigating waters entirely beyond the jurisdiction of the State of Ohio, and not bordering thereon when the assault and battery was committed, was not reached by the statute of' that State authorizing suits against boats, &c., by name, in certain cases.\\nThe case of Goodsell vs. the Brig St. Louis, (16 Ohio. R., 178,) was decided upon the proofs. The repairs for which the plaintiff' claimed to recover, were made in the city of Detroit, and it was held that he could not maintain an action for such repair's against the vessel by name, under the statute, and that the act of the Legislature of the State of Michigan, entitled \\\" an act to provide for the collection of demands against boats and vessels,\\\" which was produced on the trial, gave no such remedy in the courts of Ohio.\\nIn the case of Bidwell vs. Whittaker, (1 Mich. R., 469,) no question was made upon the complaint-, but it was decided in that case that .a claim for work done and materials furnished for the repairing of a boat in the city of Buffalo, at the request of the owner or master, did not constitute a lien upon the boat under- the provisions of chapter 122 of the Revised Statutes of this State.\\nIt is a sufficient answer to the second proposition that the complaint did expressly state that the steamboat Ruby was \\\" a vessel navigating the waters of the State of Michigan,\\\" which is equivalent to saying that it was \\\" a vessel used in navigating the waters of the State.\\\" The purport of the language is the same. It cordd not be a vessel navigating the waters of this State, unless it was used for that purpose. The complaint was not therefore defective in this respect.\\nIn regard to the third objection to the complaint, that it did not state that such boat was within the county of Wayne at the time the complaint was made, it may be remarked, that the statute does not require that the vessel should then be within the county when the application is made to an officer authorized to perform the duties of a Justice of the Supreme Court at Chambers, but only when it is made to a Judge of a Court of Record.\\nIn the latter case, the application must be made to a Judge within the county in wdiich the boat shall then be, but not so, as in this case, when the application is made to a Circuit Court Commissioner, who is one of the class of officers referred to in the former part of section 2. The language of the statute certainly does not require it, and no good reason is perceived for enlarging it by implication; on the contrary it is very obvious that the. remedy of a claimant, under the statute, might in many cases be entirely impracticable, unless the application could be made to some officer out of the county in wdiich the vessel may then be. A person in this city might have a lien upon a steamboat lying- at the dock within the corporate limits of the town, and before he could make his complaint the boat might be navigating the waters of a foreign jurisdiction. So in the case of a boat running- from Chicago to Toledo, and navigating the waters of this State, but not stopping within any county of this State a sufficient length of time to enable liim to make his application for a warrant before such boat would be beyond the limits of the county.\\nThis view of the provisions of section 2 renders it unnecessary to inquire whether, under a different construction of it, the omission to state in the application that the boat was then within the county when it is made, could affect the jurisdiction of the officer.\\nThe second and third propositions of the counsel under their first point, are therefore untenable.\\nIt remains to be determined whether the first proposition is a more substantial one. It will have been observed that the authorities cited in support of it, do not by any means determine the question. They show that for services rendered, and materials furnished, and injuries done beyond the boundaries of this State, no lien attaches to the vessel under our statute, for the reason that the statute laws of this State have not any extra territorial force, but they do not determine the question now under consideration.\\nIt is true that the written application of the claimant, verified by a proper affidavit, is all that the Commissioner has to act upon until a sale of the vessel is made, or the warrant of seizure is discharged by the giving of the bond for that purpose. No further proof is required to be made before the officer to establish the claim, or to show that it i's a subsisting lien upon the vessel, but upon the receipt of the application he is to issue his warrant to the Sheriff of the county, commanding him to attach the vessel, &c. Upon the return of such warrant by the Sheriff, the officer is required immediately to cause a notice to be published, stating therein, amongst other things, that such ship, boat or vessel, her tackle, apparel and furniture, will be sold for the payment of the claim against it, unless the owner, consignee, or commander thereof, or some person interested therein, appear and discharge such warrant according to law, within three months from the first publication of such notice. Within the time limited by the notice any person having a lien under the statute upon the property so seized, may deliver to the officer an account in writing, of Ms demand accompanied by sucb affidavit as is prescribed in relation to tbe first application for a warrant; and such person thereupon becomes entitled to tbe same benefits, and subject to tbe same responsibilities, as tbe claimant at whose instance sucb warrant originally issued.\\nAt any time before an order of sale made, tbe owner, consignee, or commander, or any person interested in tbe vessel, may apply for an order to discharge tbe warrant, and upon giving tbe bond required by tbe 18th section, sucb warrant is required to be discharged.\\nThe condition of tbe bond is, that tbe obligors therein will pay tbe amount of all sucb claims as shall have been exhibited, which shall be established! to have been subsisting liens upon such ship, boat or vessel, pursuant to tbe provisions of tbe statute, at tbe time of exhibiting tbe same respectively.\\nOn tbe trial of an issue in a suit upon tbe bond-, tbe claimant must prove bis demand, and must establish it to'have been a subsisting lien upon tbe vessel at tbe time when it was exhibited; and however full and particular the complaint might be, it would be no evidence on such' trial, of any of the facts therein stated. Tbe application is not regarded as establishing any thing, and would no more be competent evidence upon tbe trial in favor of the plaintiff, than would tbe affidavit accompanying tbe writ in a replevin suit be evidence on tbe trial of an issue upon tbe merits of tbe ownership or right of possession of the property by the plaintiff; or tbe unlawful taking or detention of it by tbe defendant.\\nThis is the only mode provided by tbe statute by which the owner or person interested in tbe vessel seized, can contest tbe validity of a claimant's demand, , or his rights to enforce it as a lien, before a sale of tbe vessel has taken place. After a sale, however, and at the time appointed by the officer for a distribution of tbe proceeds of tbe sale, sucb officer is to bear tbe proofs and allegations of tbe parties, and make distribution among the creditors who shall have exhibited their claims in conformity to the statute, unless the claims of such creditors, or some of them, shall be contested by the owner, agent, consignee, or master of the vessel, or some other of such creditors ; in which case a trial may be had by the officer, or by a jury if requested by either party, and an appeal may be taken to the Circuit Court if either party shall consider himself aggrieved by the determination of such officer, of the verdict of such jury.\\nFrom this examination of the statute, it appears evident that the application which a claimant is required to make in order to obtain a warrant for the seizure of a vessel, is not required to be as technical and formal as a declaration. But it is said that the complaint must, upon the face of it, show a case within the jurisdiction of the officer. This position is undeniable. The rule in regard to jurisdiction, that no presumption is to be made in favor of inferior tribunals, but that their jurisdiction must appear upon the face of their proceedings, has been too often declared, and is too well settled in this Court to require any citation of authorities to support it.. The facts upon which jurisdiction arises, must be either expressly set forth, or stated in such manner as to render them certain by legal intendment. It does not, however, follow that in a proceeding of this kind, it is necessary that the complaint should negative every fact or implication of law arising from facts which might constitute a good defence to the. claim. Nor do I understand such to be the law. It was necessary that the complaint should set forth such a claim as the statute declares shall constitute a lien upon the boat, and that was sufficient to give the officer jurisdiction to issue his warrant' to enforce the lien. If in fact the services for which the party claimed were rendered out of this State, and such claim did not therefore constitute a lien, that was matter of defence, and it was the right of the defendants below to give a bond in discharge of the warrant, and contest the claim in a suit to be brought on the bond; or after a sale, to go before the offfi cer, and allege the fact as an objection to the claim, and have it tried there.\\nThere is another view of this question which I have not yet adverted to. Assuming that it was necessary, as was contended on the argument, that in order to confer jurisdiction upon the commissioner, the complaint should show' that the services were rendered within this State, although this fact is not expressly stated, yet it is set forth in such a manner as to render it certain by legal intendments. The complaint was made on the second day of December, 1851, and states that the steamboat Ruby is a vessel navigating the waters of this State, and that the claim accrued for services rendered by the applicant as cook on said boat during the fall of the year 1851. It can hardly be disputed that the fair legal intendment from the facts thus set forth, is that the services were rendered within this State.\\nBeing satisfied that the Commissioner had jurisdiction to proceed upon the application, the result is that the bond given by the plaintiffs in error to obtain a discharge of the warrant,. was good and valid, and it becomes unnecessary to determine whether it would have been invalid if the officer had acted without jurisdiction in the case.\\nThe second and last point made by the counsel for the plaintiffs in error, assumes that the Justice before whom this case was originally tried, erred in refusing to admit evidence that the defendant in error, while in their employment as cook on board the steamboat Ruby, willfully cut and destroyed the hose belonging to the said boat, and it was insisted that they had a right to prove, under the general issue by them pleaded, that the plaintiff below', by his willful misconduct in cutting the hose of the boat, has forfeited his wages for the last month of his services, or from the last pay day.\\nThe plea of the defendants below was the general issue, under which they gave notice that they would show \\\" in mitigation and in recoupment of the plaintiffs' demand, that the plaintiff fraudulently conducted himself while rendering said services, and did injury to the property of the owners of said boat. They also gave notice of a set-off.\\nIt does not appear, from the Justice's return to the Circuit Court, for what purpose the question was put to the witness, nor what ground of objection was stated. If any inference can be drawn from the record, it is that this testimony was offered for the purpose of establishing the defendants right to a recoupment of damages under their notice, no other object being declared.\\nEor that purpose it was inadmissable, the matter proposed to be proved having no connection with the employment or services' of the plaintiff below. This was not controverted upon the argument, nor was it claimed that the damages resulting from the alleged injury was the subject of set-off. It was equally inadmissible for the purpose of showing a forfeiture of wages. The question was too broad, covering the whole time of the service, even if the doctrine of forfeiture of wages contended for were conceded, which it is not necessary to decide.\\nThe judgment of the Circuit Court must be affirmed with costs to the defendant in error.\"}" \ No newline at end of file diff --git a/mich/1954654.json b/mich/1954654.json new file mode 100644 index 0000000000000000000000000000000000000000..af00c8f3ddda0ac4fdc2f2ac5de9b81b32cf6b95 --- /dev/null +++ b/mich/1954654.json @@ -0,0 +1 @@ +"{\"id\": \"1954654\", \"name\": \"John L. Thompson v. Henry Moesta\", \"name_abbreviation\": \"Thompson v. Moesta\", \"decision_date\": \"1873-04-29\", \"docket_number\": \"\", \"first_page\": \"182\", \"last_page\": \"188\", \"citations\": \"27 Mich. 182\", \"volume\": \"27\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T18:35:19.181925+00:00\", \"provenance\": \"CAP\", \"judges\": \"Christiancy, Ch. J., and Graves, J., concurred.\", \"parties\": \"John L. Thompson v. Henry Moesta.\", \"head_matter\": \"John L. Thompson v. Henry Moesta.\\nTrover: Bailment: Seasonable care: Conversion: Charge to the jui'y. In an action of trover for the conversion of certain machinery and tools which the defendant leased of the plaintiff and failed to restore at the end of his term, a charge to the jury that a failure on the part of the defendant to keep and care for the goods as a prudent man would of his own, would put an end to the relation of bailor and bailee and render him guilty of the conversion and entitle the-plaintiff to bring trover without any demand, is too broad where the- evidence of want of due care points only to a portion of the property, and as to that, only shows an exposure to possible injury which does not appear to have resulted in fact.\\nTrover: Evidence: Assent: Conversion: Demand. In such a case proof that a mortgagee of the property told the plaintiff none of it must be removed until the mortgage was paid or reduced and the plaintiff replied \\u201call right,11 and that the mortgagee communicated this to the defendant aiid urged him not to let the property go till the mortgage was reduced, is evidence from which assent of the plaintiff to the retention of the properly might have been found; and if he gave such assent he could not hold defendant liable in trover after-wards without first withdrawing the assent and demanding the property.\\nTrover: Offer to deliver: Presumption: Conversion. In tiie absence of evidence of any demand and distinct refusal to deliver up the property, in such case,\\u00bb, notice to the plaintiff that he must remove the property or defendant would charge him rent, is equivalent to an offer to deliver, and rebuts the presumption of conversion; and the fact that such offer was made, not to plaintiff directly, but to another who communicated it to plaintiff, does not lessen its effect. \\u2014 Campbell,. J., dissenting.\\nHeard April 18.\\nDecided April 29.\\nError to Wayne Circuit.\\n8. Lamed smdMinoch & Balcer, for plaintiff in error.\\n0\\u25a0 Kirchner, for defendant in error.\", \"word_count\": \"1946\", \"char_count\": \"11178\", \"text\": \"Cooley, J.\\nThompson leased certain premises of Moesta, and also certain machinery and tools in use in a shop thereon. The machinery and tools appear to have been previously mortgaged by Moesta to one Hasselbacher, and though it is not. distinctly stated in the record, that the mortgage was over due' at the time this controversy arose, that fact is to be. inferred. There was evidence in the case that Hasselbacher told Moesta that he must not remove any of the property mortgaged until the mortgage was paid or reduced; thatMoesta replied, \\\"All right/' and Hasselbacher communicated this to Thompson, and told him not to let the property go until the mortgage was .reduced; that Hasselbacher after-wards consented to an engine and boiler being taken out and sold, which was done, and then Hasselbacher told Thompson to let the balance of the things go on demand,, and Thompson, who had then become tenant of tbe shop to another person, told Hasselbacher, \\u2014 wbo communicated the same to Moesta, \\u2014 that he wanted to repair his shop, and if the thiDgs were not taken away he should charge rent for them.' Moesta did not come fox1 them, but sued Thompson in trover for the value, and in the court below recovered judgment.\\nIt is sought to sustain this judgment on two grounds: First: That Thompson, while the property was in his possession, suffered it to be so abused and injured as to render-himself liable as for a conversion. The evidence on that point is, that when Moesta took away the engine and boiler, he took down for the purpose of taking away, some gearing and shafting, but for some reason left it lying upon the shop floor; that Thompson, finding it in his way, put it into the yard, where it lay for about two days, as Moesta says, in the rain and mud. Moesta says further that this usage would injure such articles, but Thompson testified that they were not in fact injured at all, and neither Moesta nor any other person undertook to deny this statement. Thei'e was no evidence to show injury to other articles, and no claim to' that effect.\\nThe circuit judge charged the jury that if Thompson failed to keep and care for the goods as a, prudent man would of his own, the relation of bailor and bailee was at an end, and the defendant was at the time guilty of the conversion of the .property, and the plaintiff could recover in this action without proving any demand. This instruction would seem to refer to all the property, and must have been undei'Stood by the jury as authorizing and requiring them to find for the plaintiff for the value of all the articles if they found a failure to observe due care and diligence in the keeping of any of them. There was nothing in the case to warrant so broad a charge. Even as to the gearing and 'shafting, it is exceedingly difficult to say that under the circumstances there was any such abuse shown as should have been referred to the jury on the question of conversion, for Moesta had actually taken it into his own possession, and if instead of removing it, he left it in Thompson's way, it is very manifest that the latter, even if not justifiable in what he did, could not justly be held liable to pay the value of the property because in putting- it out of the way he exposed it to a possible injury which nobody ventures to say has actually resulted.\\nSecond: It is said Thompson was liable because he denied the right of his lessor, and obeyed the direction of Hasselbacher, not to surrender the property. On this point the circuit judge was requested to instruct the jury:\\n\\u2022 1. That if the jury are satisfied that defendant only refused to deliver the property because so notified by Ifasselbacher on an agreement by Hasselbacher to that effect with Moesta, then there is no conversion, and plaintiff cannot recover.\\n2. That if the jury are satisfied that defendant informed Hasselbacher that Moesta must remove the property or he would charge rent, and Hasselbacher did so inform Moesta, that this is equal to an offer to deliver the property, and rebuts the presumption of any conversion.\\nEach of these requests was denied. The first, we think, should have been given. There was some evidence of Moesta's assent to the retention of the property by Thompson as Hasselbacher requested, and if he gave such assent, he certainly could not hold Thompson liable in trover afterwards without first withdrawing the iissent and demanding the property.\\n' The second should also have been given. There was no evidence that Thompson ever distinctly refused to deliver the property up. If he agreed with Hasselbacher to do so, and even if he informed Moesta of this, it would be going very far to treat such an agreement or such information as being in itself a refusal. But treating it as such, it might still be withdrawn by an offer to give up the property. And though in this case the offer to surrender the property was not made to Moesta directly, but was communicated to Hasselbacher, yet this circumstance is immaterial if in fact it was afterwards communicated to Moesta before proceedings were instituted; and this the evidence tended to show' was the case.\\nOur conclusion is that the judgment- should be reversed,, with costs, and a new trial ordered.\\nChristiancy, Ch. J., and Graves, J., concurred.\\nCampbell, J.\\nMoesta sued Thompson for the conversion of certain personal chattels leased to him with the privilege of purchasing,, but which, he did not elect to purchase.\\nIt appeared that the- property was subject to a- chattel-mortgage to Mrs.. Hasselbacher, but the date, terms and. conditions of the mortgage did not appear, \\u2014 the fact having been brought out on cross-examination.\\nAfter the lease expired, it appeared by the testimony of both parties- that Thompson refused to give up the property without Hasselbacher's consent, the latter having directed! him not to let the articles go until the mortgage was paid or reduced. A portion of the property was taken a.way, consisting of an engine and boiler. Certain shafting and a lathe were taken down at the same time, but not removed, and Thompson put them- in his yard for a time, where Moesta claims they were exposed to the weather, and after-wards. claims- to have put them- under cover. The lease' covered several tools and loose articles also.\\nThe questions, presented, arise out of certain charges and refusals to charge.\\nThe court, among.- other things, charged the jury that if Thompson failed to keep and care for the goods as a prudent .and careful man would care for his- own property, the-relation of bailor and bailee was- at an end, and the defendant was at the -time, guilty of the conversion, of- the property, and the plaintiff could recover in this action without proving any demand- And further charged as follows: \\\"The-main question in the case,, gentlemen of the j.ury, as you-will see, is whether there was any demand, and that is for you- to determine upon the whole case, the whole evidence in the case. Was Thompson willing to deliver up the property, or did he refuse to let the plaintiff Moesta have-it, or did he place himself in a position where a demand was not necessary?\\\"\\nIt does not appear whether the whole charge was given or not. It is insisted by counsel for defendant in error that the charge in regard to conversion by misusing the property could not have been understood or intended as-applying beyond the property misused; and that the latter-clause of the general charge was justified by the conduct of Thompson, shown by his own testimony, in denying Moesta's title. If this ground is correct, the other becomes immaterial, and none of the other errors assigned would, be important. I think that there is no evidence in the cause-which could exonerate Thompson from liability for his denial of Moesta's rights. By the terms of the lease he was bound- to restore the property to Moesta as his lessor* It does not appear what the terms of the mortgage were, and it cannot be assumed, without proof, that Mrs. Hasselbacher had, at the time the lease expired, such control as would justify Thompson in obeying her orders in defiance of Moesta. He was bound to return the property, or make out a right to retain it which Moesta would have been estopped from denying. There is no evidence in any way tending to show this, except a statement made by' Hasselbacher and denied by Moesta, that Hasselbacher told the. latter he must not remove the property from the shop until the mortgage was paid or reduced, and that Moesta replied, \\\"All right,\\\" and Hasselbacher told this to Thompson and-directed him to let nothing go until the mortgage should! be reduced.\\nThere was nothing in this talk, if it was had, which created any agreement, or in any way changed the rights of the parties, and it is not claimed that Moesta joined in giving Thompson any such directions.\\nAs the ease stood in the circuit, defendant there admitted he had asserted Hasselbacher's rights as paramount, and refused to recognize Moesta's. This was a clear conversion, and no further fact was necessary to give a right of action. \\u2014 Caunce v. Spanton, 7 M. & G., 903; 2 Greenl. Ev., \\u00a7 644.\\nI think the judgment should.be affirmed.\"}" \ No newline at end of file diff --git a/mich/1971477.json b/mich/1971477.json new file mode 100644 index 0000000000000000000000000000000000000000..a705443cd477870abd3f01f75670a29ff6364c24 --- /dev/null +++ b/mich/1971477.json @@ -0,0 +1 @@ +"{\"id\": \"1971477\", \"name\": \"PEOPLE v. YOUNG\", \"name_abbreviation\": \"People v. Young\", \"decision_date\": \"1983-11-22\", \"docket_number\": \"Docket No. 67373\", \"first_page\": \"1\", \"last_page\": \"30\", \"citations\": \"418 Mich. 1\", \"volume\": \"418\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T19:53:35.314764+00:00\", \"provenance\": \"CAP\", \"judges\": \"Williams, C.J., and Kavanagh, Levin, and Ryan, JJ., concurred with Brickley, J.\", \"parties\": \"PEOPLE v YOUNG\", \"head_matter\": \"PEOPLE v YOUNG\\nDocket No. 67373.\\nArgued April 7, 1983\\n(Calendar No. 14).\\nDecided November 22,1983.\\nJeffrey A. Young was convicted by a jury in the Alpena Circuit Court, Philip J. Glennie, J., of first-degree murder as a result of a homicide committed during a burglary. The Court of Appeals, Cavanagh, P.J., and D. E. Holbrook, Jr., and Pierce, JJ., affirmed (Docket No. 44489). The defendant appeals, arguing that the first-degree murder statute in effect at the time of the crime referred to common-law burglary and required proof of all of the elements of common-law burglary, including breaking and entering in the nighttime, to support a conviction of first-degree murder, that evidence of the results of blood analyses should not have been admitted without a showing that the method of analysis used, serological electrophoresis, enjoyed general scientific acceptance, and that evidence of the results of blood analyses should not have been admitted to include the defendant within the class of persons who could have committed the crime.\\nIn an opinion by Justice Brickley, joined by Chief Justice Williams and Justices Kavanagh, Levin, and Ryan, the Supreme Court held:\\nThe statute in effect at the time of the defendant\\u2019s crime required, to support a conviction of firstdegree murder for a murder committed during a burglary, proof of the breaking and entering of a dwelling in the nighttime with an intent to commit a felony. Inferences regarding the defendant\\u2019s guilt drawn from blood analyses should not have been admitted into evidence without first determining whether the technique used, serological electrophoresis, has achieved general scientific acceptance for reliability among impartial and disinterested experts. A decision on the admissibility of such analyses to include an accused in the class of possible perpetrators must await development of a record on the scientific acceptance of electrophoretic analysis.\\nReferences for Points in Headnotes\\n[1] 13 Am Jur 2d, Burglary \\u00a7\\u00a7 8 et seq., 22, 24.\\n40 Am Jur 2d, Homicide \\u00a7 72.\\n[2, 3] 29 Am Jur 2d, Evidence \\u00a7\\u00a7 823, 824.\\n31 Am Jur 2d, Expert and Opinion Evidence \\u00a7\\u00a7 68,122.\\n1. Until 1980, burglary was enumerated in the first-degree murder statute as aggravating conduct which would support a conviction of first-degree murder. To convict a defendant of first-degree murder for a murder committed during a burglary, the people, as in this case, were required to prove the historic common-law elements of burglary, namely, that the defendant broke and entered a dwelling in the nighttime with the intent to commit a felony. 1980 PA 28 substituted breaking and entering of a dwelling for burglary with no distinction as to the time of day at which the crime occurs. Because the victim was killed during the morning hours, the nighttime element was not shown.\\n2. Testimony by expert witnesses in criminal cases regarding novel scientific evidence which will aid in identifying a defendant may be admitted so long as it is established that the method of obtaining the evidence has achieved general scientific acceptance among impartial and disinterested experts in its field. In this case, the people\\u2019s expert who testified about blood analyses using the technique of serological electrophoresis to place the defendant in the class of persons who could have committed the crime was not impartial and disinterested, and the record was devoid of impartial and disinterested opinion that the technique is sensitive and specific in measuring what it purports to measure. The case must be remanded to the trial court for an evidentiary hearing to determine whether the technique has achieved general scientific acceptance for reliability among impartial and disinterested experts.\\nJustice Boyle, concurring in the result, wrote that for purposes of admitting scientific evidence it is necessary to determine that both a scientific technique and the principle or theory which underlies it are generally accepted by members of its field. It is also necessary that the technique be reliable. Acceptance and reliability are not synonymous. The probative value of scientific evidence is dependent on its proven reliability. The testimony of experts whose work is intimately connected with a particular scientific technique should not be precluded in laying the foundation for admission of the technique. Whether an expert witness who is offered to testify with regard to the technique is disinterested and impartial is one of the many elements to be weighed by the trial court in deciding whether the expert is competent. Once the scientific evidence is admitted, the determination of the credibility of such witnesses, their bias and interest, is for the trier of fact. To prevent the forensic scientists who develop and use a particular procedure from testifying is to needlessly limit the factfinder\\u2019s consideration of otherwise relevant and probative evidence. This case illustrates that genetic marker phenotyping of bloodstains is a procedure used routinely only in police case work, not commonly used in other scientific communities because they have no need for the resultant information.\\nReversed and remanded.\\n106 Mich App 323; 308 NW2d 194 (1981) reversed.\\nOpinion op the Court\\n1. Homicide \\u2014 First-Degree Murder \\u2014 Burglary \\u2014 Common Law.\\nThe enumeration of burglary in the former first-degree murder statute as aggravating conduct which would support a conviction of first-degree murder where a homicide occurred during a burglary required proof of all the elements of common-law burglary including the breaking and entering of a dwelling in the nighttime with the intent to commit a felony (1969 PA 331; MCL 750.316; MSA 28.548).\\n2. Criminal Law \\u2014 Expert Witnesses \\u2014 Scientific Evidence.\\nTestimony by expert witnesses in criminal cases regarding a novel form of scientific evidence which will aid in identifying a defendant may be admitted so long as it is established that the evidence has achieved general scientific acceptance among impartial and disinterested experts in its field.\\nConcurring Opinion by Boyle, J.\\n3. Criminal Law \\u2014 Scientific Evidence \\u2014 Expert Witnesses.\\nAdmission of scienti\\u00f1c evidence requires that both a scienti\\u00f1c technique used to acquire the evidence and the principle or theory which underlies the technique be generally accepted by members of its \\u00f1eld of science and also that it be reliable; expert testimony in establishing acceptance and reliability need not be limited to witnesses who are impartial and disinterested, the credibility of expert witnesses, their interest and bias, being for the trier of fact.\\nFrank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Theodore O. Johnson, Prosecuting Attorney, and Leonard J. Malinowski, Assistant Attorney General, for the people.\\nState Appellate Defender (by Ronald J. Bretz) for the defendant.\", \"word_count\": \"8437\", \"char_count\": \"53627\", \"text\": \"Brickley, J.\\nOn December 7, 1978, defendant was convicted by a jury of first-degree murder, as a result of a homicide committed during the perpetration of a burglary. Evidence linking defendant to the crime included inculpatory statements by the defendant made to a prosecution witness, fingerprints of the defendant obtained at the scene, and the results of blood analyses which included the defendant in the class of possible perpetrators. There were no eyewitnesses to the crime. There was, however, testimony at trial which established that the decedent was seen alive at 8 a.m. on May 16, 1978. The victim's body was discovered in his apartment at approximately 11:30 a.m. that same day. The apartment had been broken into and ransacked.\\nThe Court of Appeals affirmed defendant's conviction, 106 Mich App 323; 308 NW2d 194 (1981). We granted leave to appeal, 414 Mich 865 (1982).\\nDefendant raises three issues on appeal. First, whether burglary in the former first-degree murder statute referred to common-law burglary and required proof of all of the elements of the com mon-law offense including breaking and entering. in the nighttime; second, whether the results of the blood analyses were admissible at trial without a prior showing that the technique of serological electrophoresis enjoys general scientific acceptance among impartial and disinterested experts; and, third, whether the results of blood analyses are admissible to include an accused within the class of possible perpetrators.\\nWe answer the first question in the affirmative, and the second question in the negative. The answer to the third question must await development of a record by the trial court at the hearing which we order to determine if serological electrophoretic analysis has achieved general scientific acceptance for reliability, Frye v United States, 54 US App DC 46; 293 F 1013 (1923); People v Davis, 343 Mich 348; 72 NW2d 269 (1955), by disinterested and impartial experts, People v Barbara, 400 Mich 352; 255 NW2d 171 (1977); People v Tobey, 401 Mich 141; 257 NW2d 537 (1977).\\nWe retain jurisdiction.\\nI\\nDefendant begins his argument by declaring that the Legislature has never enacted a burglary statute. It follows, defendant then argues, that the term \\\"burglary\\\" in the first-degree murder statute in effect when this crime was committed must refer to the common-law crime. Citing Cole v People, 37 Mich 544 (1877), defendant avers that the elements of this offense are the breaking and entering of a dwelling house in the nighttime with the intent to commit a felony. Since proofs at trial established that the act occurred during the daytime, defendant concludes that his first-degree murder conviction cannot stand because the people failed to establish all requisite elements of the underlying felony. Conceding that the jury was properly instructed on and necessarily found him guilty of second-degree murder, defendant asks us to reduce his conviction to that of second-degree murder and remand for resentencing.\\nThe people respond by arguing that burglary has been codified in Michigan since ,1837. In addition, it is argued, the courts have looked to statutory burglary to determine the sufficiency of allegations in informations charging burglary. The people further argue that statutory burglary contained all the elements of the common-law crime until 1964, when the Legislature deleted the nighttime element from the \\\"burglary-breaking and entering\\\" statute, MCL 750.110; MSA 28.305. This, it is alleged, impliedly changed the common-law definition of burglary for purposes of the first-degree murder statute. The people acknowledge that a 1969 amendment to the first-degree murder statute did not alter the requirement for proof of a burglary. Nevertheless, it is contended, the amendment was enacted with full knowledge of the posited 1964 change in the elements of common-law burglary, thus amounting to a form of legislative ratification of a new definition of burglary. As a result, the people claim that the failure to prove the nighttime element in the case at bar should not be fatal to this defendant's conviction of first-degree murder.\\nBoth the people and the defendant rely on People v McDonald, 409 Mich 110; 293 NW2d 588 (1980). In McDonald, the defendant was convicted of first-degree murder during the perpetration or attempted perpetration of a rape. On appeal, the defendant questioned whether a felony-murder conviction could be obtained on the basis of the underlying felony of rape once the carnal knowledge statute had been repealed and replaced by the criminal sexual conduct law, criminal sexual conduct not having been added to the felony-murder statute at that time. This Court held that rape survived for purposes of prosecution under the first-degree murder statute:\\n\\\"We find the Legislature intended that the repealed carnal knowledge statute define rape for purposes of the first-degree murder statute. The conduct proscribed by the former carnal knowledge statute upon which a first-degree murder conviction was based is also presently prohibited under the criminal sexual conduct act. Consequently, the Legislature did not intend to abrogate such conduct as an aggravating circumstance required for first-degree murder. Rape, as formerly defined under the carnal knowledge law, survives for purposes of prosecution under the first-degree murder statute.\\\" 409 Mich 116.\\nIt was concluded that the rape instructions objected to were properly given by the trial court.\\nOur analysis of the sexual conduct proscribed, characterized by the term rape, as it existed at the time the first-degree murder statute was last recodified in 1931 PA 328 revealed that the prohibited sexual conduct had been codified from the common-law crime and had remained unchanged through various statutes including the present criminal sexual conduct law. The defendant's conduct always had been punishable. We looked to the 1931 recodification of the first-degree murder statute because no express legislative action to change the sexual conduct required as an aggravating circumstance to support a first-degree murder conviction had occurred in that statute in the interim. It is important to note that McDonald does not suggest that the Legislature amended the meaning of the term rape by adopting the criminal sexual conduct law.\\nRestating the arguments in terms of our analysis in McDonald, defendant would have us look to the last recodification of the first-degree murder statute in 1931 to determine the Legislature's understanding of the aggravating conduct required to support a first-degree murder conviction. Defendant's argument focuses on the failure of the Legislature to expressly amend that statute as to burglary in the interim between enactment in 1931 PA 328 and the date of this crime. The people, in contrast, would have us view a 1969 amendment to the first-degree murder statute, which retained a requirement for burglary, in the light of a 1964 amendment to MCL 750.110; MSA 28.305 which deleted the \\\"in the nighttime\\\" requirement for a statutory violation. In short, the people would have us expand the McDonald analysis in this case to include an implied amendment of the conduct required to support a first-degree murder conviction.\\nIn order to better understand our analysis, we first present a brief history of the statutes involved. That will be followed by a more detailed examination of the statutes which prohibited unauthorized entries.\\nThe Revised Statutes of 1838 deemed murder committed during a burglary to be murder in the first degree. RS 1838, pt 4, tit 1, ch 3, \\u00a7 1. Until 1980, after the commission of the crime in this case, the term burglary appeared in the first-degree murder statute as aggravating conduct which would support a first-degree murder conviction. In 1980 PA 28, the Legislature deleted the reference to burglary and substituted the phrase \\\"breaking and entering of a dwelling\\\".\\nThe Revised Statutes of 1838 also prohibited the breaking and entering of a dwelling house in the nighttime with the intent to commit a felony. RS 1838, pt 4, tit 1, ch 4, \\u00a7 10. As will be discussed, this statute was treated by this Court as the statutory codification of the common-law crime of burglary. Over time, the Legislature greatly expanded the sweep of this statute by increasing the classes of enumerated structures. Nevertheless, until 1964, the conduct prohibited always included the breaking and entering of a dwelling house in the nighttime with the intent to commit a felony. In 1964 PA 133, the nighttime element was removed.\\nIn cases which construed these statutes, this Court recognized that the Legislature had created statutory burglary. In Pitcher v People, 16 Mich 142 (1867), Pitcher was charged with statutory-burglary. He argued for a limited meaning for the words \\\"dwelling-house\\\". Justice Cooley, writing for the Court, noted:\\n\\\"The statutory definition of burglary in a dwelling-house, is the same as that of the common law; and we must infer that the statute designs simply to provide for the punishment of the common law offense, unless we discover some reason for believing that the legislature employed the definition in some new and restricted sense. No other reason is suggested, except that the words 'dwelling-house' are used with restricted meaning in prescribing penalties for other offenses \\u2014 a reason the force of which must depend upon other considerations.\\n\\\"If the statute had provided distinct punishments for burglary in the dwelling-house proper, and in the outhouses, etc., used in connection therewith a legislative intent to employ the words 'dwelling-house' in a sense not embracing such out-houses, would be very apparent; but it will be perceived, by an examination of the statute, that no such division of the common law offense has been made, and that unless the word 'dwelling-house' is used in the sections referred to in their common law sense, many burglaries will not be covered by the statute, and their punishment will consequently not be provided for at all.\\\" 16 Mich 146-147.\\nJustice Cooley found that the livestock barn into which the defendant broke and entered in the nighttime with the intent to commit a larceny fell within the meaning of the common-law term \\\"curtilage\\\". He concluded that the defendant was properly charged with burglary under the statute.\\nIn Cole v People, supra, Cole was charged with statutory breaking and entering of a store. Justice Cooley, again writing for the Court, compared the charged offense with burglary. This case has been cited by both the people and the defendant for its definition of burglary. It is noteworthy that the definition employed by Justice Cooley is consistent with both the common-law definition and the statutory definition.\\nThis Court has also looked to the statutory crime to determine the sufficiency of allegations in informations charging burglary. In Harris v People, 44 Mich 305; 6 NW 677 (1880), Harris and Williams were charged with and convicted of the statutory crime of attempted burglary. In affirming their convictions, Justice Graves, writing for the Court, noted that burglary is a common-law offense, not a crime created by the Legislature. He further noted that the statutory crime distinguished between simple burglary and aggravated burglary. He cautioned against the conclusion that the addition of aggravating factors to the common-law crime created a new crime:\\n\\\"The statute does not carve [burglary] into two. It exposes it to different grades of punishment, according as it may or may not be accompanied by the incidents specified in the statute. It may be laid according to the common law, and without referring to the facts on which the imposition of the higher penalty depends; but in such case the punishment cannot exceed the lesser penalty. The accusation will support nothing more. Where the facts are supposed to warrant it, and the higher penalty is contemplated, the crime must be described with the attending facts which justify that penalty.\\\"\\nTurning to statutory break-ins, Justice Graves continued:\\n\\\"The various breakings resembling burglary which have been declared criminal by the legislature, are distinguishable from the ancient offense of the common law. They owe their definition to the statute, and the statute must be consulted to ascertain their ingredients. When they are charged they must be set forth in substance, as in the statute, with all descriptive incidents, whether negative or otherwise. Koster v People, 8 Mich 431 (1860); Byrnes v People, 37 Mich 515 (1877).\\\" 44 Mich 307.\\nSee also Hall v People, 43 Mich 417; 5 NW 499 (1880); People v Shaver, 107 Mich 562; 65 NW 538 (1895).\\nIn sum, this Court recognized that the Legislature had codified the common-law crime of burglary in these early statutes. We construed this statutory crime by ascribing to it common-law content. The validity of informations charging burglary was tested against the requirements of the statute. Finally, our recognition of statutory burglary was frequently couched in language which compared the offense (and its common-law analogue) with statutory breakings and enterings.\\n1931 PA 328, \\u00a7 110, prohibited, inter alia, the breaking and entering of any dwelling house in the nighttime with the intent to commit a felony. Section 111 prohibited such conduct during the daytime. This distinction with respect to the time of the offense persisted until it was abolished in 1964 PA 133.\\nAt all times prior to 1980, the first-degree murder statute required, as an aggravating circumstance, conduct termed burglary. As we have seen, the common-law elements of this crime were adopted as the statutory standard by the Legislature and were consistently construed in their common-law sense by this Court. Thus, at the time the first-degree murder statute was last recodified in 1931 PA 328, the conduct historically known as burglary was prohibited by statute. That conduct included, as an element, that the act be done in the nighttime.\\nThe people do not dispute this conclusion. Rather, as previously stated, the people argue that we should look to the 1969 amendment of the first-degree murder statute. The people contend that the Legislature must be presumed to have been aware of the change effected by 1964 PA 133 and that that change \\\"must reflect the intention by the Legislature of repealing the common-law requirement for an 'in the nighttime' element of burglary\\\". We disagree with this argument in several respects.\\nIt is an elementary principle of construction that we will assign to common-law terms their common-law meaning unless the Legislature directs otherwise. We have done so with burglary. Pitcher v People, supra; Cole v People, supra; Harris v People, supra. In effect, the people ask us to disregard the plain meaning of the word that the Legislature chose to use and find, instead, that the Legislature meant breaking and entering when it said burglary in 1969 PA 331. The rationale for such an unusual request is apparently that burglary and breaking and entering have become so entwined over time by virtue of their placement in the same statute that the Legislature failed to see the difference between the two crimes and regarded them as interchangeable.\\n1969 PA 331 retained the reference to burglary. Notwithstanding the people's conjecture about the Legislature's inability to distinguish between the crimes of breaking and entering and burglary or the Legislature's treatment of the two crimes as interchangeable, we treat the retention of the term burglary as dispositive on this point. Pitcher v People, supra.\\nA review of the legislative history of the 1969 amendment to the first-degree murder statute convinces us that the Legislature intended that the underlying felony be burglary. House Bill No. 2431 was a bill to amend the Michigan Penal Code. It would have added to the first-degree murder statute, as aggravating circumstances, the crimes of larceny of any kind, breaking and entering, extortion, and kidnapping. It did not remove the reference to the crime of burglary. See 2 Michigan House J (1969), p 1188. This bill passed the House by a vote of 94 to 3 on June 3, 1969. See 2 Michigan House J (1969), pp 1859-1860. On July 1, 1969, a message was received from the Senate, returning the bill with an amendment which deleted the crimes of larceny of any kind and breaking and entering. See 3 Michigan House J (1969), p 2593; 2 Michigan Senate J (1969), pp 1738-1739. On July 2, 1969, the House voted against concurring in the Senate amendment by a vote of 86 to 9. See 3 Michigan House J (1969), pp 2601-2602. Later that day, the Senate again returned HB 2431, together with its amendment, to the House with, the message that the Senate \\\"insisted\\\" on its amendment and requested a conference. See 3 Michigan House J (1969), p 2653; 2 Michigan Senate J (1969), pp 1758-1759. At conference, compromise was achieved. In final form, the amendment to the first-degree murder statute added the crimes of larceny of any kind, extortion, and kidnapping. It is important to note that the reference to the crime of breaking and entering was stricken specifically. See 4 Michigan House J (1969), p 3225; 3 Michigan Senate J (1969), p 2266.\\nThis legislative action must be viewed against the historical backdrop of almost 150 years of legislative action distinguishing between the crimes of breaking and entering and burglary. Commencing with the enactment of the territorial laws of 1816, the crimes of burglary and breaking and entering existed side by side until 1964. It is unlikely that the Legislature did not know that the crimes were different and did not act on that knowledge. This point is underscored by the Legislature's action in 1980 PA 28 where \\\"breaking and entering of a dwelling\\\" was substituted for \\\"burglary\\\".\\nThe argument that the crimes were viewed by the Legislature as interchangeable is similarly suspect. Approximately 150 years of legislative and judicial history suggest the contrary. Even if the people's assertion is accepted as true, one might inquire why the Legislature would choose to perpetuate the inconsistency.\\nWe can only conclude that in 1969 the Legislature intended that the crime of burglary, in its common-law sense, be the aggravating circumstance for purposes of the first-degree murder statute.\\nThe people argue that the Legislature has the power to change the common law. Const 1963, art 3, \\u00a7 7. We do not disagree. The Legislature has changed the common law numerous times and knows how to do so. See 1935 PA 127, now MCL 600.2901; MSA 27A.2901 (prohibition of actions for alienation of affection); 1915 PA 314, now MCL 600.2902; MSA 27A.2902 (abolition of certain real actions known to the common law); 1958 PA 182, now MCL 600.2917; MSA 27A.2917 (limitation on liability of a merchant for conduct involving persons suspected of larceny of goods); 1941 PA 303, now found in MCL 691.561-691.564; MSA 27.1683(1)-27.1683(4) (limitation on the common-law bar to contribution among joint tortfeasors); 1972 PA 294; MCL 500.3101 et seq.; MSA 24.13101 et seq. (limitation on tort liability arising out of the ownership, maintenance, or use of a motor vehicle). This is not such an instance.\\nIn People v McDonald, supra, we looked to the first-degree murder statute at the time of its enactment to determine the Legislature's understanding of the aggravating conduct it deemed necessary to support a first-degree murder conviction. In that case, as here, the Legislature had not expressly amended the first-degree murder statute in the interim between enactment and the commission of the crime in issue. Fundamental to our view is the premise that an express change is necessary for certainty in the conduct proscribed. Such a view precludes our expansion of the holding in McDonald to include implied changes.\\nIt is noteworthy that the people's argument assumes, without authority, that the 1964 amendment to MCL 750.110; MSA 28.305 which eliminated the \\\"in the nighttime\\\" requirement did, sub silentio, amend the meaning of the common-law term burglary and thus the conduct required to be proved to support a conviction of another crime in a separate unnamed statute, the first-degree murder statute, MCL 750.316; MSA 28.548. Such a result would violate at least the spirit of the title-object clause of Const 1963, art 4, \\u00a7 24.\\nWe hold that the term burglary in the first-degree murder statute required that the people prove the historic common-law elements of that offense. It was that conduct, the breaking and entering of a dwelling house in the nighttime with an intent to commit a felony, that the Legislature proscribed as an aggravating circumstance in the first-degree murder statute until it expressly acted to amend the first-degree murder statute in 1980 PA 28. Although the defendant, conceding that the jury was properly instructed on and necessarily found him guilty of second-degree murder, properly asks us to reduce his conviction to that of second-degree murder, we decline to do so pending resolution of the remaining issues in this case following remand.\\nII\\nDuring the defendant's trial, identification evidence obtained by blood analyses using the novel technique of serological electrophoresis was admitted in evidence. Defense counsel's timely objection to the scientific acceptability of the technique was overruled. The results of the analyses were offered to demonstrate that the defendant was included in the class of persons who could have committed the charged offense. The defendant argues that these results were inadmissible at trial without a prior showing that the technique of serological electrophoresis enjoys general scientific acceptance among impartial and disinterested experts. We agree.\\nThe admissibility of scientific evidence in this state is governed by the so-called Davis-Frye rule. In Frye v United States, 54 US App DC 46, 47; 293 F 1013 (1923), a standard for admissibility of scientific evidence was articulated:\\n\\\"[W]hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.\\\"\\nIn People v Becker, 300 Mich 562; 2 NW2d 503 (1942), Justice Sharpe, writing for a unanimous Court, concluded that the results of a lie-detector test offered by defendant to prove his innocence were properly ruled inadmissible by the trial court. The opinion noted that no testimony had been offered at trial which revealed \\\"general scientific recognition\\\" of such tests at that time. The opinion concluded:\\n\\\"Until it is established that reasonable certainty follows from such tests, it would be error to admit in evidence the result thereof.\\\" 300 Mich 566.\\nIn People v Davis, 343 Mich 348; 72 NW2d 269 (1955), the admission of allegedly favorable lie-detector results was again sought by a defendant following an unfavorable trial court ruling. Mindful of the .rule in Becker, a trial record was made on the issue, and authorities were cited for the reliability of the results. After restating the rule in Becker, the Court evaluated the material before it in the context of proof of general reliability and acceptability. In a unanimous opinion by Justice Butzel, the Court declined to overrule its earlier holding in Becker. The Court identified its concern about the admission at trial of such results before general reliability and acceptance were established:\\n\\\"The tremendous weight which such tests would necessarily carry in the minds of a jury requires us to be most careful regarding their admission into evidence and we should not do so before its accuracy and general scientific acceptance and standardization are clearly shown.\\\" 343 Mich 372.\\nIn People v Barbara, 400 Mich 352; 255 NW2d 171 (1977), this Court once more considered the issue of the admissibility of lie-detector results. As before, the issue was presented by a defendant who sought the admission of allegedly favorable test results in support of a motion for a new trial following his conviction of extortion. On this issue, a unanimous Court declined the invitation to modify our traditional Davis-Frye rule. Chief Justice Williams, in an exhaustive and scholarly opinion, interpreted the phrase \\\"general scientific recognition\\\". He noted that the record was devoid of testimony by \\\"disinterested and impartial experts\\\". 400 Mich 358. Such experts were later characterized in the following way:\\n\\\"[T]he witnesses were not disinterested scientists. While one would not want an expert witness without experience or background in the technical field, one would want, where the task was to demonstrate the general scientific acceptability, an acknowledgment of the value of the device and the techniques by disinterested scientists whose livelihood was not intimately connected with it. In addition, the Davis-Frye test requires acceptability by those in certain established scientific disciplines.\\\" 400 Mich 376.\\nIn People v Tobey, 401 Mich 141; 257 NW2d 537 (1977), this Court was confronted with the admissi bility of voiceprint identification evidence. The trial court had ruled that such evidence was admissible. The Court of Appeals held that an inadequate foundation had be\\u00e9n established and reversed. We found it unnecessary to reach the foundation issue presented until a more basic question was resolved \\u2014 whether voiceprint analysis had achieved general scientific acceptance as a reliable identification technique. After noting that the expert witnesses offered as proponents of voice-print identification could scarcely be considered disinterested and impartial, and after examining the relevant literature on the subject of voiceprint analysis, Justice Levin, writing for a unanimous Court, concluded that the people, as the offering party, had failed to meet the burden of demonstrating that this novel identification evidence had gained general scientific acceptance as reliable. The standard announced in Becker and Davis, and expanded in Barbara, was specifically reaffirmed.\\nIn People v Salvadore Gonzales, 415 Mich 615; 329 NW2d 743 (1982), we last responded to an attack on the Davis-Frye rule. The trial court ruled that hypnotically refreshed testimony was admissible. Applying the Davis-Frye standard, the Court of Appeals reversed. The people appealed. In an opinion written by Justice Kavanagh, we unanimously concluded that the Court of Appeals was correct in applying the Davis-Frye test. In response to the prosecutor's argument that the Davis-Frye rule is applicable only to lie-detector tests, truth serums, drunkenness tests, and narcotics tests, Justice Kavanagh stated:\\n\\\"The prosecutor's argument that the Frye rule is inapplicable proceeds from an unduly narrow reading of the opinions invoking the Frye rule. The purpose of this rule is to prevent the jury from relying on unproven and ultimately unsound scientific methods.\\\" 415 Mich 623.\\nIn the instant case, and despite our invariant and unanimous application of the Davis-Frye rule to the admissibility of novel scientific evidence, the trial court did not conduct a Davis-Frye hearing before the results of serological electrophoresis testing were admitted into evidence. That was error.\\nBefore this Court, the people argue variously that the technique of serological electrophoresis is accurate and reliable in scientific literature, has the support of disinterested and impartial experts, and has been accepted in other states. These assertions would be persuasive of general scientific acceptance of the technique's reliability for identification if they were accompanied by a record that addressed that point. They do not. The limited record information we have before us on which to form an opinion about the reliability of the technique comes from the testimony of the people's expert witness, Mark Stolorow, a Michigan State Police employee and co-developer of the technique, who testified that he devoted approximately 90% of his work time to using the technique on bloodstain samples received at the State Police Crime Laboratory. We think this to be insufficient to determine whether the procedure enjoys general scientific acceptance among impartial and disinterested experts. Although we do not doubt that the technique of electrophoresis enjoys general acceptance as a diagnostic and a research tool, the record before us is devoid of impartial and disinterested expert opinion that serological electrophoresis is sensitive and specific in measuring what it purports to measure. People v Barbara, supra. People v Tobey, supra. In addition, the literature and case law cited by the people do not aid us at this juncture because they refer to specific procedures or methods. The record in this case does not. Stolorow's slide show at trial did go into considerable detail on a method using starch gel as the support medium. He also disclosed during cross-examination that he uses two other methods which employ different support media: an agarosestarch gel mixture and polyacrylamide gel. He testified that he used these three methods to test for five different proteins, the presence or absence of which formed the basis of his trial testimony. We will not speculate, on a matter this grave, that the methods used by Stolorow are those described in the literature and the cases.\\nThe people's other arguments fall generally into two classes: an attack on the Davis-Frye rule and the assertion that any Davis-Frye error in this case is harmless beyond a reasonable doubt. We treat these arguments in turn.\\nThe people argue that the Davis-Frye rule should be abolished because it hinders early courtroom use of technological advances in the rapidly developing discipline of forensic science. In addition, it is argued, the adoption of MRE 702 by this Court substantially undercuts the necessity for the Davis-Frye rule because the party opposing admissibility will be able to challenge general scientific acceptance during the proponent's qualification of its expert witness.\\nWe answered the people's technological advance argument in People v Salvadore Gonzales, supra, where we stated that the purpose of the Davis-Frye rule \\\"is to prevent the jury from relying on unproven and ultimately unsound scientific methods\\\". We approve the reasoning of the court in United States v Brown, 557 F2d 541, 556 (CA 6, 1977):\\n\\\"A courtroom is not a research laboratory. The fate of a defendant in a criminal prosecution should not hang on his ability to successfully rebut scientific evidence which bears an 'aura of special reliability and trustworthiness,' although, in reality the witness is testifying on the basis of an unproved hypothesis in an isolated experiment which has yet to gain general acceptance in its field.\\\"\\nWe stress that the issue is not whether this test, or any test, is an appropriate scientific undertaking. It is whether the inferences to be drawn from the test results are admissible. Inferences are admissible if they are generally accepted by impar tial and disinterested experts of the relevant scientific community.\\nThe argument of the superfluity of the Davis-Frye rule in the light of MRE 702 simply misses the point. That rule states:\\n\\\"If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.\\\" (Emphasis supplied.)\\nAt issue in this case is whether identification evidence derived from serological electrophoretic analysis of blood has achieved general scientific acceptance as being reliable. The Davis-Frye standard is the means by which the court can determine that the novel evidence offered for admission here enjoys such recognition.\\nFinally, the prosecutor argues that a Davis-Frye error here, if any, was harmless beyond a reasonable doubt because of the other evidence of defendant's guilt adduced at trial. In the light of the hearing which we order, we conclude that this argument is premature and need not be addressed at this time.\\nWe hold that the admissibility of novel scientific evidence is governed by the Davis-Frye standard. Such evidence must have achieved general scientific acceptance among impartial and disinterested experts. In this case, we are unable to determine from the record before us whether blood analysis identification evidence from the technique of serological electrophoresis is competent evidence. A Davis-Frye hearing should have been held. We remand this case to the trial court for an eviden tiary hearing to determine whether the results of serological electrophoresis have achieved general scientific acceptance for reliability among impartial and disinterested experts. We retain jurisdiction.\\nWilliams, C.J., and Kavanagh, Levin, and Ryan, JJ., concurred with Brickley, J.\\nMCL 750.316; MSA 28.548.\\nThe murder statute at the time of this crime provided:\\n\\\"All murder which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping, shall be murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life.\\\" MCL 750.316; MSA 28.548.\\nIn 1980, this statute was amended. \\\"Breaking and entering of a dwelling\\\" was substituted for the term \\\"burglary\\\":\\n\\\"Murder which is committed in the perpetration, or attempt to perpetrate arson, criminal sexual conduct in the first or third degree, robbery, breaking and entering of a dwelling, larceny of any kind, extortion, or kidnapping, is murder of the first degree, and shall be punished by imprisonment for life.\\\"\\n1980 PA-28, effective March 7,1980.\\nSee fn 2.\\nThe Revised Statutes of 1838 contained six statutes which pertained to unauthorized entries. RS 1838, pt 4, tit 1, ch 4, \\u00a7 9-14. Section 10 incorporated the common-law elements of burglary. Section 9 incorporated the common-law elements of burglary and the additional element that the perpetrator be armed or make an assault on the complainant. Sections 11 through 14 were breaking and entering statutes. In \\u00a7 11, the Legislature proscribed nighttime breaking and entering of enumerated structures not adjacent to a dwelling house. Section 12 proscribed entering in the night without breaking, daytime breaking and entering of a dwelling house, and daytime breaking and entering of enumerated structures, a person lawfully on the premises of such a structure being put in fear. Section 13 proscribed the same acts as \\u00a7 12, minus the element of being put in fear. Section 14 proscribed daytime theft from a dwelling house or other enumerated structure and nighttime theft, after breaking and entering, from a building erected for public use.\\nThe diiferentiation between burglary and breaking and entering had been in existence for more than 20 years, dating back to \\\"An act for the punishment of crimes\\\" adopted on November 4, 1815. See Territorial Laws, vol 1, \\u00a7 25, 28, 29, pp 117-119. Such diiferentiation was continued in 1820, Territorial Laws, vol 1, \\u00a7 24, 30, 31, pp 569, 571-572, and in 1827, Territorial Laws, vol 2, \\u00a7 24, 30, 31, pp 546, 548.\\nPeople's supplemental brief, p 4.\\nAt trial, Mark Stolorow, a forensic serologist employed by the Michigan State Police, was the only witness to testify about the technique of serological electrophoresis. He testified that this technique is used to test for the presence of different proteins in the blood. Since only very small samples of blood are required, the technique is well adapted to the analysis of bloodstains.\\nStolorow described the method of analysis as follows. A specimen of the sample to be analyzed is placed on a starch gel, an agarose-starch gel or a polyacrylamide gel support medium. An electric current is applied. Proteins, being electrically charged molecules, will migrate characteristically in the gel. After discontinuance of the electric current, the proteins are variously fixed and stained. The final product, called a pattern, is visually compared with patterns from samples of known protein content. The presence or absence of a protein is noted. Either result is significant.\\nThe Court of Appeals observed: \\\"We conclude that because, in the present case, defendant offered no evidence that the electrophoresis technique used to compare the blood samples was scientifically inaccurate and because the defendant has not convinced us that the accuracy of electrophoresis is seriously disputed the trial court did not abuse its discretion in admitting Mark Stolorow's testimony without first requiring that the Davis-Frye standard be met.\\\" 106 Mich App 329. This is patently incorrect. The people were the offering party in this case. As the previously recited line of unanimous precedent unequivocally demonstrates, the party offering novel scientific evidence has the burden of demonstrating general scientific acceptance for reliability among impartial and disinterested experts before the evidence may be admitted.\\nWe do not read Barbara-Tobey as precluding the testimony of a witness merely because of interest.\\nBoth the people and the defendant direct our attention to State v Washington, 229 Kan 47; 622 P2d 986 (1981), in which the Kansas Supreme Court applied the Davis-Frye standard to blood analysis identification evidence derived from the Multi-System method of serological electrophoresis and concluded that the results of this procedure had achieved general scientific acceptance. The people aver that the method used in Washington is the same as that used here.\\nMore significant to this case in its present posture, we believe, is the apparent growing controversy over the procedure's reliability, which Washington details. In Washington, Stolorow testified for the prosecution, which sought to admit bloodstain identification evidence. A co-developer, Dr. Benjamin Grunbaum, testified for the defense. Grunbaum questioned whether the evidence was reliable because of the rapid deterioration of blood outside the body. We caution that we express no opinion about the relative merits of these arguments by our observation that a controversy apparently exists.\"}" \ No newline at end of file diff --git a/mich/2039337.json b/mich/2039337.json new file mode 100644 index 0000000000000000000000000000000000000000..39a4ff2a1f12c4d61301750596ecaeab29f15188 --- /dev/null +++ b/mich/2039337.json @@ -0,0 +1 @@ +"{\"id\": \"2039337\", \"name\": \"PHILLIPS v. BUTTERBALL FARMS COMPANY, INC (AFTER SECOND REMAND)\", \"name_abbreviation\": \"Phillips v. Butterball Farms Co.\", \"decision_date\": \"1995-03-21\", \"docket_number\": \"Docket No. 97976\", \"first_page\": \"239\", \"last_page\": \"260\", \"citations\": \"448 Mich. 239\", \"volume\": \"448\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T23:07:03.730072+00:00\", \"provenance\": \"CAP\", \"judges\": \"Cavanagh, Boyle, and Mallett, JJ., concurred with Levin, J.\", \"parties\": \"PHILLIPS v BUTTERBALL FARMS COMPANY, INC (AFTER SECOND REMAND)\", \"head_matter\": \"PHILLIPS v BUTTERBALL FARMS COMPANY, INC (AFTER SECOND REMAND)\\nDocket No. 97976.\\nArgued November 2, 1994\\n(Calendar No. 14).\\nDecided March 21, 1995.\\nTeresa Phillips brought an action in the Kent Circuit Court against Butterball Farms Company, Inc., claiming that she was discharged in retaliation for exercising rights under the worker\\u2019s compensation act by requesting that medical bills for injuries suffered on the job be paid. The court, Robert A. Benson, J., granted summary disposition for the defendant, ruling that punitive damages or damages for mental or emotional distress could not be recovered. The Court of Appeals, Maher, P.J., and Sullivan and Reilly, JJ., affirmed in an unpublished opinion per curiam (Docket No. 118024). The Supreme Court vacated and remanded the case for reconsideration. 439 Mich 895 (1991). On remand, the Court of Appeals, Sullivan, P.J., and Reilly and Jansen, JJ., affirmed in an unpublished opinion per curiam, finding that the cause of action sounded in contract (Docket No. 147501). The Supreme Court again vacated and remanded the case for reconsideration in light of Dunbar v Dep\\u2019t of Mental Health, 197 Mich App 1 (1992). 442 Mich 911 (1993). On second remand, the Court of Appeals, McDonald, P.J., and Reilly and Jansen, JJ., reversed, holding that the cause of action sounded in tort, permitting damages for mental or emotional distress, but that because the plaintiff was an employee at will, only limited or nominal damages could be recovered (Docket No. 165049). The plaintiff appeals.\\nIn an opinion by Justice Levin, joined by Justices Cavanagh, Boyle, and Mallett, the Supreme Court held:\\nAlthough Phillips was an employee at will, recovery is not limited to nominal damages. If she can establish that she was discharged for exercising rights under the worker\\u2019s compensa tion act, she may recover compensation for lost wages, back and front pay, and mental or emotional distress damages.\\nReferences\\nAm Jur 2d, Wrongful Discharge \\u00a7\\u00a7 25, 26.\\nRecovery for discharge from employment in retaliation for filing workers\\u2019 compensation claim. 32 ALR4th 1221.\\n1. A cause of action seeking damages from an employer for retaliatory discharge for filing a worker\\u2019s compensation claim is independent of the contract, and sounds in tort, not contract. While the contractual relationship is \\\"at will,\\u201d it is not the source of an employee\\u2019s right to protection. The right stems not from an implied promise by the employer, but from the worker\\u2019s compensation statute.\\n2. Because this action sounds in tort, the available damages are not limited by contract principles. Thus, the plaintiff is not required to plead a separate claim for intentional infliction of emotional distress to recover damages, nor must she meet the burdens requisite to establishing that cause of action. She stated a separate and independent basis for recovery of mental and emotional distress damages. She may recover lost wages because she had a reasonable expectation that she would not be terminated for filing a worker\\u2019s compensation claim, despite the nature of the employment relationship. Because the right to recovery under the public policy exceptions to the employment at will doctrine arises independently of the employment contract, she should be compensated for lost wages. Nominal damages would not compensate her for the loss of employment, nor would they provide sufficient deterrence to employers who would violate the statute.\\nReversed and remanded.\\nJustice Riley, joined by Chief Justice Brickley, dissenting, stated that a common-law action claiming retaliation for asserting worker\\u2019s compensation rights sounds in contract, and damages are limited to traditional contract remedies. Appropriate remedies would include reinstatement and back pay from the date of the discharge to the date of judgment, not mental distress or exemplary damages. This type of wrongful discharge gives rise to a judicially created cause of action that attempts to protect an expressed state policy that is implied in every contract of employment, i.e., the right to assert worker\\u2019s compensation rights without being discharged or discriminated against. The liability associated with worker\\u2019s compensation does not derive from the fault or negligence of the employer, but from injury arising out of and in the course of employment.\\nJustice Weaver took no part in the decision of this case.\\n201 Mich App 663; 506 NW2d 606 (1993) reversed.\\nWorker\\u2019s Compensation \\u2014 Employment at Will \\u2014 Retaliatory Discharge \\u2014 Torts.\\nA cause of action seeking damages from an employer for retalia tory discharge for filing a worker\\u2019s compensation claim is independent of the contract, and sounds in tort, not contract; while the contractual relationship is \\\"at will,\\u201d it is not the source of an employee\\u2019s right to protection; the right stems not from an implied promise by the employer, but from the worker\\u2019s compensation statute (MCL 418.301[11]; MSA 17.237[301][11]).\\nDrew, Cooper & Anding (by Stephen R. Drew and Amy L. Young) for the plaintiff.\\nMiller, Johnson, Snell & Cummiskey, P.L.C. (by Craig H. Lubben), for the defendant.\\nAmicus Curiae:\\nClark, Klein & Beaumont (by Dwight H. Vincent, J. Walker Henry, and Donica T. Thomas) for Michigan Manufacturers Association.\", \"word_count\": \"6977\", \"char_count\": \"43065\", \"text\": \"AFTER SECOND REMAND\\nLevin, J.\\nPlaintiff Teresa Phillips, an employee at will, commenced this action against her former employer, defendant Butterball Farms Company, Inc., claiming that she was discharged for exercising rights under the worker's compensation act. The circuit court entered orders limiting the damages recoverable, and trial has been deferred to provide Phillips with an opportunity to appeal those orders.\\nThe Court of Appeals held that because Phillips was an employee at will, damages for lost wages will be nominal and the measure of damages for mental or emotional distress will also be limited.\\nWe hold that, although Phillips was an employee at will, recovery is not limited to nominal damages, and, if she can establish that she was discharged for exercising rights under the worker's compensation act, she may recover compensation for lost wages, back pay and front pay, and mental or emotional distress damages. The parties have not briefed or argued the issues that might arise respecting the length of front pay and mitigation of damages. We remand for trial.\\ni\\nPhillips was a probationary employee at Butterball. She injured her wrist on the job, and returned to work on August 19, 1986, five days after the injury. She alleges that she claimed benefits under the worker's compensation act by requesting that her medical bills be paid by Butterball and was met with a hostile attitude, and, approximately two weeks later, before the end of the probationary period, her employment was terminated.\\nPhillips commenced this action, and the circuit court entered the orders limiting damages. The Court of Appeals essentially affirmed the circuit court orders limiting damages.\\nThe Court of Appeals ruled that the instant case was factually similar to Dunbar v Dep't of Mental Health, 197 Mich App 1; 495 NW2d 152 (1992), and that, under Administrative Order No. 1990-6, it was bound to follow Dunbar. The Court, however, criticized Dunbar.\\nThe Court said that, because it was bound to follow Dunbar, it was \\\"compelled to conclude that plaintiff's cause of action sounds in tort, and, therefore, plaintiff may claim all the damages allowed for that cause of action, including damages for mental or emotional distress.\\\" The Court, however, limited the amount recoverable:\\n[T]he measure of damages for her mental or emotional distress necessarily will be con\\u00f1ned to proof of distress arising solely from the retaliatory nature of the discharge, because an at will employee has no reasonable expectation of being continued in employment. Similarly, whether the action be in tort or contract, damages for lost wages will be nominal because an at-will employee cannot show a reasonable expectation of continued employment. [Emphasis added.]_\\nII\\nPhillips was an employee at will. The general rule is that \\\"in the absence of a contractual basis for holding otherwise, either party to an employment contract for an indefinite term may terminate it at any time for any, or no, reason.\\\" Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 694-695; 316 NW2d 710 (1982). This Court continued that nevertheless \\\"some grounds for discharging an employee are so contrary to public policy as to be actionable.\\\" In addition to statutory causes of action for violation of explicit prohibitions, causes of action have been implied where the employee was discharged for failure or refusal to violate a law in the course of employment.\\nThis Court continued in Suchodolski that \\\"the courts have found implied a prohibition on retaliatory discharges when the reason for a discharge was the employee's exercise of a right conferred by a well-established legislative enactment. See, e.g., Sventko v Kroger Co [69 Mich App 644; 245 NW2d 151 (1976)]; Hrab v Hayes-Albion Corp, 103 Mich App 90; 302 NW2d 606 (1981). Both cases involved allegations of discharges in retaliation for having filed worker's compensation claims.\\\"\\nIn Sventko, the Court of Appeals recognized a cause of action for discharge in retaliation for filing a worker's compensation claim. The lead opinion said that \\\"while it is generally true that either party may terminate an employment at will for any reason or for no reason, that rule is not absolute.\\\" The opinion continued that \\\"the better view is that an employer at will is not free to discharge an employee when the reason for the discharge is an intention on the part of the employer to contravene the public policy of this state.\\\" The Court of Appeals thus found that, although there was no explicit statutory proscription, the public policy expressed in the worker's compensation act precluded an employer from discharging an employee for filing a claim.\\nhi\\nThe Court of Appeals initially determined that an action for retaliatory discharge sounded in tort. Subsequent panels concluded that the action sounded in contract. In Dun bar, the Court ruled that an action for wrongful discharge in retaliation for filing a worker's compensation claim sounds in tort, not contract. The Court continued that the cause of action is now statutorily-based, and that, for breach of the statutory duty, the action sounds in tort not contract.\\nButterball argues, consistent with the Court of Appeals opinions concluding that the claim sounds in contract, that the contractual employment relationship is what gives rise to Phillips' cause of action. Implied in every contract, Butterball contends, is a promise not to contravene public policy. Thus, the action for retaliatory discharge is in contract because the right not to be discharged arises out of a promise implied in the contract.\\nThis argument ignores that the source of this right against retaliatory discharge does not stem from any term agreed upon by the contracting parties, but from public policy now expressed in a statute. The duty not to retaliate against an employee for filing a worker's compensation claim arises independently from the employment contract. In Lathrop v Entenmann's, Inc, 770 P2d 1367, 1373 (Colo App, 1989), a Colorado appellate court said: \\\"[t]he duty of the employer to refrain from retaliation in violation of a state's public policy does not find its source in any private contract; it is a duty imposed by the state's legislative body; and it is one that cannot be adjusted or modified lay the private actions of an employer and a collective bargaining agent.\\\"\\nMany states now recognize a cause of action for retaliatory discharge of an employee who has filed a worker's compensation claim. The vast majority hold that such an action is grounded in tort on the basis of a public policy exception or express statutory proscription.\\nThe Nevada Supreme Court observed:_\\nWe know of no more effective way to nullify the basic purposes of Nevada's workmen's compensation system than to force employees to choose between a continuation of employment or the submission of an industrial claim. In the absence of an injury resulting in permanent total disability, most employees would be constrained to forego their entitlement to industrial compensation in favor of the economics necessity of retaining their jobs.[ ]\\nIn holding that such a cause of action sounds in tort, not contract, the Kansas Court of Appeals observed that \\\"the mere existence of a contractual relationship between the parties does not change the nature of [this] action.\\\"\\nIn enacting \\u00a7 301(11) of the Worker's Disability Compensation Act, the Legislature codified Sventko. While the contractual relationship was \\\"at will,\\\" the contractual relationship is not the source of an employee's right to protection against retaliatory discharge for filing a worker's compensation claim. The right stems not from an implied promise by the employer, but from the statute. A cause of action seeking damages from an employer who violates the worker's compensation act is independent of the contract, and sounds in tort, not contract.\\nIV\\nThe Court of Appeals, in holding that because Phillips was an employee at will, she may recover only limited or nominal damages, in effect ruled that there is no meaningful remedy for retaliatory discharge for filing a worker's compensation claim. Some employees are employed for fixed terms. Others are protected by individual or union contracts providing that the employee may only be discharged for just cause. And still others, perhaps the majority, are \\\"at will.\\\" A fixed-term or just-cause employee is protected by that term of the employment relationship. Unless employees at will are also protected from retaliatory discharge for filing a worker's compensation claim, almost no employee is protected by the prohibition against discharge of an employee therefor.\\nIn Dunbar, supra, the Court of Appeals held that, because a claim for retaliatory discharge sounds in tort, the employee can claim damages for mental distress and loss of pay resulting from the improper discharge.\\nButterball contends that the Dunbar panel erred, and argues that decisions of this Court have limited the circumstances in which an employee can obtain mental distress damages when there has been no evidence of physical injury. Butterball cites this Court's decisions in Valentine v General American Credit, Inc, 420 Mich 256; 362 NW2d 628 (1984), concerning mental distress damages for breach of an employment contract, and Roberts v Auto-Owners Ins Co, 422 Mich 594; 374 NW2d 905 (1985), concerning the tort of intentional infliction of emotional distress.\\nIn Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401, 419; 295 NW2d 50 (1980), this Court held that mental and emotional distress damages were not ordinarily available in an action for bad-faith breach of contract. The Court also declined to recognize a tort for bad-faith breach because it would \\\"open the door to recovery for mental pain and suffering caused by breach of a commercial contract.\\\" The Court said, however, that damages for mental and emotional distress may be awarded where there was allegation and proof of tortious conduct independent of the breach of contract.\\nValentine, an action for breach of contract for termination of employment without just cause, followed Kewin. Valentine did not address an action in tort that arose independently of the employment contract. Because this action sounds in tort, the available \\\"damages are not limited by contract principles.\\\"\\nOther courts that recognize an action in tort for worker's compensation retaliatory discharge have allowed recovery for mental and emotional distress, as well as lost wages. The Iowa Supreme Court said:\\nWhile it is not a crime or an act requiring a malicious motive or outrageous conduct, wrongful discharge offends standards of fair conduct and normally will cause the employee damages in lost income. In addition to his monetary loss of wages, the employee may suffer mentally. . . . We know of no logical reason why a wrongfully discharged employee's damages should be limited to out-of-pocket loss of income, when the employee also suffers causally connected emotional harm. Distressful emotions not involving bodily injury are compensable in actions for the infringement of some other interest. . . . We believe that fairness alone justifies the allowance of a full recovery in this type of tort.\\nButterball contends that allowing Phillips to recover emotional and mental distress damages would contravene Roberts, supra. There, this Court declined to recognize an action in tort for intentional infliction of emotional distress for breach of an insurance contract.\\nPhillips was not required to plead a separate claim for intentional infliction of emotional distress to recover damages for mental and emotional distress, nor must she meet the burdens requisite to establishing that cause of action. In pleading a cause of action for worker's compensation retaliatory discharge, Phillips stated a separate and independent basis for recovery of mental and emotional distress damages.\\nThe Court of Appeals stated that to permit Phillips to recover full compensatory damages would transform her \\\"at will\\\" employment contract into a \\\"just cause\\\" contract. Again, we disagree.\\nThe Court of Appeals in Sepanske said that \\\"either party to an at will employment contract for an indefinite term may terminate it at any time and for any reason, unless the employer has violated a specific public policy in discharging the employee.\\\" The Court found that an employee at will could only recover nominal damages for lost wages because \\\"[t]here is no tangible basis upon which damages may be assessed where plaintiff's expectation was for an at will position which could have been changed or from which he could have been terminated without consequence.\\\" The claim in Sepanske, however, was premised on breach of contract, not a separate tort.\\nWe hold that Phillips may recover lost wages. Phillips had a reasonable expectation that she would not be terminated for filing a worker's compensation claim, despite the at-will nature of the employment relationship. Recovery under the public policy exceptions to the employment at will doctrine arises independently of the employment contract. Phillips should be compensated for lost wages to give effect to the mandate now expressed in \\u00a7 301(11). Nominal damages would not compensate Phillips for her loss of employment, nor would it provide sufficient deterrence to employers who would violate the statute.\\nReversed and remanded to the circuit court for trial.\\nCavanagh, Boyle, and Mallett, JJ., concurred with Levin, J.\\nThe circuit court granted summary disposition in favor of Butterball dismissing Phillips' claims of handicap discrimination and breach of implied contract.\\nThe circuit court ruled that Phillips could not recover punitive damages or damages for mental or emotional distress.\\nThe Court of Appeals affirmed in an unpublished opinion per curiam, issued February 22, 1991 (Docket No. 118024). This Court vacated the judgment of the Court of Appeals and remanded for reconsideration. 439 Mich 895 (1991). On remand, in an unpublished opinion per curiam, issued May 14, 1992 (Docket No. 147501), the Court of Appeals found that Phillips' cause of action was in contract. This Court again vacated and remanded, this time for reconsideration in light of Dunbar v Dep't of Mental Health, 197 Mich App 1; 495 NW2d 152 (1992). 442 Mich 911 (1993).\\n201 Mich App 663; 506 NW2d 606 (1993).\\nThe Court said:\\nFurthermore, the Dunbar majority has presented no rationale for distinguishing between retaliatory discharge for filing a workers' compensation claim and other types of retaliatory discharge that are equally offensive to public policy. The mere fact that the Workers' Disability Compensation Act has codified the public policy against retaliatory discharge for filing a workers' compensation claim is not a sufficient basis for ignoring the underlying basis for the cause of action, i.e., that some grounds for discharge are so contrary to public policy as to give rise to an action for wrongful discharge, even though the employer-employee relationship is \\\"at will.\\\" . . . The majority in Dunbar acknowledged that a retaliatory discharge is a type of wrongful discharge, but did not explain how the explicit statutory codification of public policy against retaliatory discharge in workers' compensation cases transforms such activity into a tort action while other types of retaliatory discharge apparently give rise to contract actions. [Id. at 668.]\\nId. at 669.\\n7 Id. at 670.\\nId. at 695.\\nThe Court adverted to the following statutes:\\nMCL 37.2701; MSA 3.548(701) (Civil Rights Act); MCL 37.1602; MSA 3.550(602) (Handicappers' Civil Rights Act); MCL 408.1065; MSA 17.50(65) (Occupational Safety and Health Act); MCL 15.362; MSA 17.428(2) (The Whistleblowers' Protection Act). [Id. at 695, n 2.]\\nThe Court cited cases in which an employee was discharged for failure to file a false report, give false testimony, and participate in illegal price fixing.\\nId. at 695-696.\\nid. at 646-647.\\nId. at 647.\\nGoins v Ford Motor Co, 131 Mich App 185, 198; 347 NW2d 184 (1983).\\nIn Watassek v Dep't of Mental Health, 143 Mich App 556; 372 NW2d 617 (1985), another panel of the Court took a different approach in a case involving the discharge of an employee in retaliation for reporting abusive practices at a state mental health facility. Relying on Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), the Court stated that \\\"an action for wrongful discharge is one mainly ex contractu. An action claiming retaliatory discharge is an action asserting a specific type of wrongful discharge and thus constitutes a contract action.\\\" Watassek, supra at 564-565. The panel rejected the decision in Goins, finding that the previous panel's reliance on Sventko was misplaced because Sventko did not specify the nature of a retaliatory discharge action. Id. at 565. The Court concluded that, because the wrongful discharge occurred in the context of an employment relationship, the employment contract formed the basis of the action.\\nIn Lopus v L & L Shop-Rite, Inc, 171 Mich App 486; 430 NW2d 757 (1988), a Court of Appeals panel addressed this issue in the context of a retaliatory discharge that occurred before the filing of a worker's compensation claim. The Lopus panel agreed with the Watassek panel and rejected the ruling in Goins. Id. at 490-491. In addition, the panel found both Sventko and Goins factually distinguishable.\\nIn Mourad v Auto Club Ins Ass'n, 186 Mich App 715; 465 NW2d 395 (1991), a Court of Appeals panel ruled that retaliatory discharge actions were contract actions. In an action for wrongful termination of a just-cause employment contract, it was held that a claim for retaliatory demotion is an alternative theory of recovery from a breach of just-cause contract because both actions depend on the same facts. Id. at 726. Thus, the two could not be pleaded in the same action. In addition, the Court reaffirmed that a wrongful discharge action was in contract, not tort, citing Watassek and Lopus. Id. at 727.\\nSee text accompanying n 5.\\nA claim for retaliatory discharge under the wdca is statutorily provided, MCL 418.301(11); MSA 17.237(301X11). Thus, a statutory duty is created on the part of the employer not to discharge an employee in retaliation for the employee's filing of a workers' compensation claim. A breach of this statutory duty by an employer sounds in tort, not contract. [Dunbar, supra at 10.]\\nA person shall not discharge an employee or in any manner discriminate against an employee because the employee filed a complaint or instituted or caused to be instituted a proceeding under this act or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by this act. [MCL 418.301(11); MSA 17.237(301)(11).]\\nPhillips cites Lingle v Norge Div of Magic Chef, Inc, 486 US 399; 108 S Ct 1877; 100 L Ed 2d 410 (1988), to clarify this distinction. In Lingle the question was whether a union employee's worker's compensation retaliatory discharge claim was preempted by \\u00a7 301(a) of the Labor-Management Relations Act of 1947, 29 USC 185(a). The United States Supreme Court held that the claim was not preempted because, under Illinois law, there was an independent means for ascertaining whether there had been a violation other than from the contract itself. Although the Court looked to state law to determine whether there was preemption, the point is well taken that, at least as how Illinois has chosen to define it, the worker's compensation retaliatory discharge claim does not depend on an interpretation of the employment contract.\\nSee Love, Retaliatory discharge for Sling a workers' compensation claim: The development of a modern tort action, 37 Hastings L J 551, 554-555 (1986); anno: Recovery for discharge from employment in retaliation for Sling workers' compensation claim, 32 ALR4th 1221.\\nSee Lathrop, supra (public policy); Buckner v General Motors Corp, 760 P2d 803 (Okla, 1988) (statute); Springer v Weeks & Leo Co, Inc, 429 NW2d 558 (Iowa, 1988) (statute); Hansen v Harrah's, 100 Nev 60; 675 P2d 394 (1984) (public policy); Firestone Textile Co v Mead ows, 666 SW2d 730 (Ky, 1983) (public policy); Lally v Copygraphics, 85 NJ 668; 428 A2d 1317 (1981) (public policy and statute); Murphy v City of Topeka-Shawnee Co Dep't of Labor Services, 6 Kan App 2d 488, 492; 630 P2d 186 (1981) (public policy); In re Axel v Duffy-Mott Co, Inc, 47 NY2d 1; 416 NYS2d 554; 389 NE2d 1075 (1979) (statute); Kelsay v Motorola, Inc, 74 Ill 2d 172; 23 Ill Dec 559; 384 NE2d 353 (1978) (public policy); Frampton v Central Indiana Gas Co, 260 Ind 249, 252; 296 NE2d 425 (1973) (public policy).\\nHansen v Harrah's, n 21 supra at 64. See also Murphy, n 21 supra at 495; Kelsay, n 21 supra at 181; Frampton, n 21 supra at 251.\\nMurphy, n 21 supra at 493.\\nSee also Burk v K mart Corp, 770 P2d 24, 28 (Okla, 1989) (\\\"An employer's termination of an at-will employee in contravention of a clear mandate of public policy is a tortious breach of contractual obligations\\\"); Lally, supra at 670 (\\\"The statutory declaration of the illegality of such a discharge underscores its wrongful and tortious character for which redress should be available\\\").\\nSee n 18 for text.\\nSee Foley v Interactive Data Corp, 47 Cal 3d 654, 668; 254 Cal Rptr 211; 765 P2d 373 (1988).\\nId. at 10; see also Goins, n 14 supra at 198 (affirming an award of future damages for lost wages).\\nButterball also relies on Daley v LaCroix, 384 Mich 4; 179 NW2d 390 (1970), in which this Court considered the availability of mental distress damages in a negligence action. Daley is inapposite because Phillips states a claim for violation of public policy. Although this Court required evidence of physical injury in Daley's negligence action to support an award of mental distress damages, that limitation does not necessarily apply to intentional misconduct. See Niblo v Parr Mfg, Inc, 445 NW2d 351, 354-355 (Iowa, 1989).\\nId. at 423.\\nId. at 420-421; see also Wiskotoni v Michigan Nat'l Bank-West, 716 F2d 378, 388 (CA 6, 1983).\\nThis Court cited Harbaugh v Citizens Telephone Co, 190 Mich 421, 428; 157 NW 32 (1916), in which the Court held that the plaintiff had stated a tort claim independent of the breach of contract for which \\\"[h]is actual damages may, however, include just compensation for such annoyance and inconvenience as he may be able to show he suffered by reason of defendant's unlawful act.\\\"\\nIn Valentine, supra at 259, this Court ruled that a plaintiff may not recover mental distress damages for breach of an employment contract. The Court observed that Toussaint, n 15 supra, did not create rights that would be actionable in tort. Toussaint only dealt with a right that was enforceable because of a promise not to terminate except for cause arising out of the employment contract. Id. at 258. Thus, the \\\"obligation which gave rise to this action is based on the agreement of the parties; it is not an obligation imposed on the employer by law.\\\" Id. at 259. In contrast, the obligation not to discharge an employee for filing a worker's compensation claim is imposed on employers by law and does not stem from any term of the agreement between the employer and the employee.\\nThe Court of Appeals reliance on Sepanske v Bendix Corp, 147 Mich App 819, 829; 384 NW2d 54 (1985), in resolving Phillips' damages claim was misguided. In holding that the plaintiff was only entitled to nominal damages for the defendant's breach of a contract providing employment at will, the Sepanske panel stated, \\\"This is not a case of wrongful discharge.\\\" Id.\\nWiskotoni, n 29 supra at 388; Pratt v Brown Machine Co, 855 F2d 1225, 1242 (CA 6, 1988).\\nIn tort cases, \\\"actual damages now include compensation for mental distress and anguish.\\\" Veselnak v Smith, 414 Mich 567, 574; 327 NW2d 261 (1982); see also Wiskotoni, n 29 supra at 389. A plaintiff claiming damages for mental and emotional distress would not be entitled to exemplary damages if mental and emotional distress damages are included as part of compensatory damages. Veselnak, supra.\\nAbsent legislation regarding damages, a plaintiff claiming mental and emotional distress damages for breach of a statutory mandate will only be able to recover therefor as part of compensatory damages. Eide v Kelsey-Hayes Co, 431 Mich 26, 54-57; 427 NW2d 488 (1988).\\nSee Scott v Otis Elevator Co, 572 So 2d 902, 903 (Fla, 1990); Niblo, n 27 supra at 354-356; Cagle v Burns & Roe, Inc, 106 Wash 2d 911, 915-917; 726 P2d 434 (1986); Malik v Apex Int'l Alloys, Inc, 762 F2d 77, 80-81 (CA 10, 1985) (applying Oklahoma law); Harless v First Nat'l Bank in Fairmont, 169 W Va 673, 689-690; 289 SE2d 692 (1982); see also Wiskotoni, n 29 supra at 388; Pratt, n 32 supra at 1242.\\n34 Niblo, n 27 supra at 355.\\nId. at 611.\\nThis Court said that \\\"[t]he mere failure to pay a contractual obligation, without more, will not amount to outrageous conduct for purposes of this tort.\\\" Id. at 605. Plaintiff's anger did not establish severe emotional distress, absent some additional evidence of grief, depression, disruption of lifestyle, or treatment. Id. at 610-611.\\nSee Cagle, n 33 supra at 917; Malik, n 33 supra at 81; Harless, n 33 supra at 689-690 ('.'We believe that the tort of retaliatory discharge carries with it a sufficient indicia of intent, thus, damages for emotional distress may be recovered as part of compensatory damages\\\"). The Iowa Supreme Court stated:\\n[The tort of wrongful discharge] is distinct from the tort of intentional infliction of emotional harm, which established an independent ground for liability for damages for mental anguish caused by intentional or reckless extreme and outrageous conduct. The requirements of proof are greater, so that the law will not intervene in every case where someone's feelings are hurt or where the mental distress is not severe. [Niblo, n 27 supra at 357.]\\n201 Mich App 670.\\nN 31 supra.\\nId. at 826.\\nId. at 829; see also Environair, Inc v Steelcase, Inc, 190 Mich App 289, 294; 475 NW2d 366 (1991).\\nAs the parties have not briefed or argued the length of front pay or the mitigation of damages, we express no opinion on these issues.\"}" \ No newline at end of file diff --git a/mich/2064166.json b/mich/2064166.json new file mode 100644 index 0000000000000000000000000000000000000000..2dac6228f186af0e01e3ee8ed6310ac253a7cdbb --- /dev/null +++ b/mich/2064166.json @@ -0,0 +1 @@ +"{\"id\": \"2064166\", \"name\": \"PEOPLE v. MILLER; PEOPLE v. GARY KISH; PEOPLE v. ALFRED KISH\", \"name_abbreviation\": \"People v. Miller\", \"decision_date\": \"1970-11-30\", \"docket_number\": \"Docket Nos. 7,020, 7,059, and 7,362\", \"first_page\": \"161\", \"last_page\": \"166\", \"citations\": \"28 Mich. App. 161\", \"volume\": \"28\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T23:45:48.150316+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Lesinski, C. J., and J. H. Gillis and Beasley, JJ.\", \"parties\": \"PEOPLE v. MILLER PEOPLE v. GARY KISH PEOPLE v. ALFRED KISH\", \"head_matter\": \"PEOPLE v. MILLER PEOPLE v. GARY KISH PEOPLE v. ALFRED KISH\\n1. Criminal Law \\u2014 Included Offenses \\u2014 Indictment and Information.\\nA conviction may be had of a lesser offense not charged in the information where the lesser offense is necessarily included within the greater offense charged.\\n2. Criminal Law \\u2014 Rape\\u2014Attempted Rape \\u2014 Included Offenses.\\nAttempted rape is, by operation of law, included in the offense of rape.\\n3. Criminal Law \\u2014 Included Offenses \\u2014 Charge\\u2014Discretion.\\nThe trial judge may sua sponte charge on a lesser included offense even though the defendant has made no request for the charge or even though the defendant has objected to a charge on the lesser offense where there is evidence to support a conviction on the lesser included offense.\\n4. Criminal Law \\u2014 Mistrial\\u2014Prejudice\\u2014Appeal and Error.\\nA mistrial should not be declared because of any mere irregularity which is not prejudicial to the defendant; an alleged error in the defendant\\u2019s trial will not be reviewed unless the facts connected with the alleged error so appear in the record that the appellate court can see that the defendant has been prejudiced.\\nReferences for Points in Headnotes\\n41 Am Jur 2d, Indictments and Informations \\u00a7 312 et seq.\\n44 Am Jur, Rape \\u00a7 26.\\n41 Am Jur 2d, Indictments and Informations \\u00a7 306.\\n53 Am Jur, Trial \\u00a7 796 et seq.\\n5 Am Jur 2d, Criminal Law \\u00a7 778.\\nAppeal from Wayne, George T. Martin, J. Submitted Division 1 November 5, 1970, at Detroit.\\n(Docket Nos. 7,020, 7,059, and 7,362.)\\nDecided November 30, 1970.\\nLeave to appeal denied as to Alfred Kish January 21, 1971, and as to Miller April 13, 1971.\\n384 Mich 800, 826.\\nRichard D. Miller, Gary Kish, and Alfred Kish were convicted of the attempted rape of a female person over the age of 16 years. Defendants appeal.\\nAffirmed.\\nFrank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Thomas R. Lewis, Assistant Prosecuting Attorney, for the people.\\nJames D. O\\u2019Connell, for defendant Miller.\\nArthur J. Tarnow (Defenders\\u2019 Office \\u2014 Legal Aid and Defender Association of Detroit), for defendant Gary Kish.\\nJohn L. Kadela, for defendant Alfred Kish.\\nBefore: Lesinski, C. J., and J. H. Gillis and Beasley, JJ.\\nCircuit judge, sitting on the Court of Appeals by assignment.\", \"word_count\": \"1464\", \"char_count\": \"8863\", \"text\": \"J. H. Gillis, J.\\nDefendants appeal their jury convictions of attempted rape of a female person over the age of 16 years. MCLA \\u00a7 750.92 (Stat Ann 1962 Rev \\u00a7 28.287); MCLA \\u00a7 750.520 (Stat Ann 1954 Rev \\u00a7 28.788). The information charged the completed offense; and the testimony of the complainant, if believed, established all the elements of the crime of rape, including penetration. The defendants claimed, however, that the complainant voluntarily entered their car and that she freely consented to engage in sexual intercourse. Furthermore, it was claimed that penetration never occurred.\\nThere was testimony that defendant Miller got into the back seat of the car, removed his pants, but was unable to achieve either an erection or penetration. Defendant Gary Kish testified that he attempted to have intercourse with the complainant but was unsuccessful. Likewise, defendant Alfred Kish testified that his efforts to have sexual intercourse with the complainant were unsuccessful and that penetration did not take place. Medical testimony revealed that no sperm was found upon vaginal examination of the complainant.\\nDefendants' first contention is that their convictions must be reversed because the information in this case did not charge an attempt to commit, but only rape consummated. Moreover, defendants argue that on the evidence presented they could only be convicted of the completed offense, rape consummated, rather than the attempt. We are told that no evidence supports the jury's finding, implicit in its verdict, that defendants attempted to rape the complaining witness.\\nWe need not linger long over these threshold contentions. They are wholly without merit.\\n\\\" 'Conviction may be had of lesser offense not charged in information where it is necessarily included within greater offense that is charged.'\\n\\\"In People v. Baxter (1928), 245 Mich 229, 232, we said:\\n\\\" 'Defendant invokes the rule, operative in some jurisdictions by judicial holdings, and in others by statute, that there can he no conviction of an attempt to commit a felony if the evidence establishes consummation of the felony. This is the rule in Illinois. People v. Lardner (1921), 300 Ill 264 (133 NE 375, 19 ALR 721). But the rule is not general, and does not prevail in this jurisdiction. If an information admits of conviction of an attempt to commit a felony, an accused may be found guilty of the attempt, though the evidence shows a completed offense. People v. Miller (1893), 96 Mich 119; People v. Blanchard (1904), 136 Mich 146. Such a verdict may be illogical, but the people cannot complain, and the defendant must accept it, even though less in measure than his just deserts; at least he cannot be heard to say that he has suffered injury.\\n\\\"'In People v. Hoover (1928), 243 Mich 534, defendant was convicted of an assault, and it was urged \\\"that, under the proofs, defendant was either guilty of taking indecent liberties (the charge) or not guilty of any offense.\\\" We made answer: \\\"This argument has been made before, but not with success;\\\" citing People v. Martin (1919), 208 Mich 109; People v. Garner (1920), 211 Mich 44.'\\n\\\"The offense here charged necessarily included an attempt to commit the crime of larceny in a store, and whether followed by consummation of that purpose or not did not require that it be in a separate count in the information.\\\" People v. Bradovich (1943), 305 Mich 329, 331, 332. (Emphasis supplied.)\\nIn the present case the charged offense necessarily included an attempt to commit the offense. See MCLA \\u00a7 768.32 (Stat Ann 1954 Rev \\u00a7 28.1055). People v. Webb (1901), 127 Mich 29; see also, 2 Gillespie, Michigan Criminal Law and Procedure, \\u00a7 1073, p 1461.\\nSince the crime of attempted rape was, by operation of law, included in the offense charged, the trial court did not err in instructing the jury that they might find defendants guilty of attempted rape. \\\"Where no request to charge on the lesser offense has been made hut evidence exists to support a conviction of the lesser offense, the trial judge may, sua sponte, instruct on the lesser offense.\\\" People v. Stevens (1968), 9 Mich App 531, 534. This is true notwithstanding defense counsel's objection to such a charge. People v. Milhem (1957), 350 Mich 497. On the evidence presented, the jury could have concluded that no penetration, an essential element of the crime of rape, had occurred. Crediting complainant's testimony, except as to penetration, the jury could lawfully find defendants guilty of attempted rape. See People v. Gardner (1968), 13 Mich App 16.\\nDuring the course of trial, a pair of nylon stockings supposedly worn by the complainant on the night of the offense were displayed in open court over objection of defense counsel. The prosecution attempted to introduce these stockings in evidence, but they were withdrawn after the prosecutor discovered that he could not determine the custody thereof. A motion for mistrial on grounds of alleged prejudice was denied by the trial court. This denial is assigned as error. We find none.\\nIn People v. McDonald (1969), 17 Mich App 88, 89, this Court on an analogous record held:\\n\\\"A mistrial should not he declared in consequence of any mere irregularity which is not prejudicial to the rights of defendant. People v. Qualls (1968), 9 Mich App 689, 693. Alleged errors in the conduct of the trial will not he reviewed unless the facts connected therewith so appear in the record that the Court can see that accused has been prejudiced. People v. Nick (1960), 360 Mich 219, 229, 230.\\\"\\nWe find no prejudice sufficient to warrant the conclusion that justice has miscarried in this case. Ac cordingly, we decline to interfere with the trial court's ruling. MCLA \\u00a7 769.26 (Stat Ann 1954 Rev \\u00a7 28.1096); GrCR 1963, 529.1.\\nError is assigned regarding testimony allegedly given by the prosecutor during closing argument to the jury. The trial court disposed of defense counsel's objection as follows: \\\"Mr. Edwards [defense counsel] made a comment on the testimony and Mr. Hayes [prosecuting attorney] can make a comment on the testimony.\\\" A review of the record establishes that the prosecutor was not testifying, as alleged; he was merely making permissible comment. There was no error.\\nFinally, it is alleged that the trial court's charge on the presumption of innocence was prejudicially misleading. We have read the charge as a whole, People v. Fred W. Thomas (1967), 7 Mich App 519, and are satisfied that defendants' rights were fairly protected.\\nAffirmed.\\nAll concurred.\"}" \ No newline at end of file diff --git a/mich/2072833.json b/mich/2072833.json new file mode 100644 index 0000000000000000000000000000000000000000..d93afd0cb085a28c5505408d47080157226e185d --- /dev/null +++ b/mich/2072833.json @@ -0,0 +1 @@ +"{\"id\": \"2072833\", \"name\": \"DeCamp v. Fleckenstein\", \"name_abbreviation\": \"DeCamp v. Fleckenstein\", \"decision_date\": \"1970-06-26\", \"docket_number\": \"Docket Nos. 8,747, 8,748\", \"first_page\": \"85\", \"last_page\": \"91\", \"citations\": \"25 Mich. App. 85\", \"volume\": \"25\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T17:54:29.063482+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Holbrook, P. J., and Bronson and Munro, JJ.\", \"parties\": \"DeCamp v. Fleckenstein\", \"head_matter\": \"DeCamp v. Fleckenstein\\n1. Negligence \\u2014 Contributory Negligence \\u2014 Infants.\\nAn infant under seven years of age is incapable, as a matter of law, of contributory negligence.\\n2. Negligence \\u2014 Contributory Negligence \\u2014 Infants\\u2014Instructions to Jury.\\nRefusal to instruct the jury that they could not as a matter of law consider a minor\\u2019s contributory negligence was proper where the minor\\u2019s chronological age was eight years even though his mental age was contested and claimed to be five years and ten months.\\nReferences for Points in Headnotes\\n[1, 2] 38 Am Jur, Negligence \\u00a7\\u00a7 204-208, 294. 42 Am Jur 2d, Infants \\u00a7 142.\\n[3] 38 Am Jur, Negligence \\u00a7 357.\\n[4] 42 Am Jur 2d, Infants \\u00a7 \\u00a7 142, 146.\\n3. Negligence \\u2014 Contributory Negligence \\u2014 Infants\\u2014Mental Age \\u2014Instructions to Jury.\\nA determination that the contributory negligence of an infant of the chronological age of 8 years with the mental age of five years and ten months was a question for the jury, not a question of law, was correct.\\n4. Negligence \\u2014 Contributory Negligence \\u2014 Infants\\u2014Standard of Care.\\nThe contributory negligence of an eight-year-old minor whose claimed mental age was five years and ten months was to be determined by what a reasonably careful minor of like age, mental capacity, and experience would do or would not do under such circumstances.\\nAppeal from Kalamazoo, Raymond W. Fox, J.\\nSubmitted Division 3 May 7, 1970, at Grand Rapids.\\n(Docket Nos. 8,747, 8,748.)\\nDecided June 26, 1970.\\nComplaints by Marilyn J. DeCamp, guardian of the estate of Kenneth Wayne DeCamp, a minor, and George DeCamp, Jr., against Louis E. Fleckenstein for damages for injuries in an automobile-pedestrian accident. Verdict and judgment for defendant. Plaintiffs appeal.\\nAffirmed.\\nJames Sloan, Jr. (Randolph McCarthy, of counsel), for plaintiffs.\\nJames & Bark, for defendant.\\nBefore: Holbrook, P. J., and Bronson and Munro, JJ.\\nCireuit judge, sitting on the Court of Appeals by assignment.\", \"word_count\": \"1868\", \"char_count\": \"10861\", \"text\": \"Holbrook, P. J.\\nThe plaintiff's minor ward, Kenneth Wayne DeCamp, an infant with a chrono logical age of eight years, was struck hy defendant's car when he rode his bicycle into the street. There was testimony introduced at the trial to the effect that the minor's mental age was five years and ten months at the time of the accident. The jury below found no cause of action, and the plaintiffs, after their motion for new trial was denied, appealed to this Court.\\nThe sole question for our determination in this case is whether the rule that a minor of less than seven years of age cannot, as a matter of law, be guilty of contributory negligence, Baker v. Alt (1965), 374 Mich 492, required an instruction that the plaintiff child is presumed to he incapable of contributory negligence should the jury find his mental age to he less than seven years. The trial judge in denying the motion for new trial ruled that the question of the child's contributory negligence, under these facts, was for the jury's determination. That opinion stated in part:\\n\\\"These cases were tried to a jury and there was a verdict of no cause of action. Error is claimed in the instructions of the court to the jury. Kenneth Wayne DeCamp was a minor over seven years of age at the time of the accident. There was proof that his mental age was under seven. The court instructed the jury in part as follows: 'As to the hoy, a minor is not held to the same standard of conduct as an adult. When I use the words \\\"ordinary care\\\" with respect to the minor I mean that degree of care which a reasonably careful minor of the age, mental capacity, and experience of the minor would use under the circumstances which you find existed in this case. If is for you to decide what a reasonably careful minor of like age, mental capacity, and experience would do or would not do under such circumstances.' Counsel for the plaintiff argues that because the child's mental age was under seven years he was entitled to an instruction to the jury that the minor could not be guilty of contributory negligence. With this the court did not agree and does not now agree.\\n\\\" When a child reaches the age of seven years it is the opinion of this court that his conduct becomes a question for the jury and that he is to be held to the same standard of care as a child of like age, mental capacity, and experience. The theory of plaintiff's counsel would open a veritable Pandora's Box in that, where the child's mental age is in dispute, every jury would have to be instructed that in spite of the chronological age being seven or more if the jury found the mental age was under seven then the child could not be guilty of contributory negligence, . The age of seven years refers to chronological and this is a cutoff age which the courts have recognized for many years and which this court is not inclined to upset.\\\"\\nWe now turn to Baker v. Alt, supra, for the Court's ruling pertaining to the issue herein presented, pp 497-499, 505:\\n\\\"The third ground urged by appellant presents a question to which meticulous attention must be given. It involves a fundamental substantive rule of law. Precedent is unclear. Our answer is of importance to the jurisprudence of the State.\\n\\\"Appellant submitted the following request to charge:\\n\\\" 'I charge you in this case that plaintiff, at the time of the accident being a minor child of six years of age, he cannot be charged with contributory negligence.'\\nThe court refused the instruction. Appellant properly preserved the claim of error. The court advised counsel that be would allow tbe question to go the jury under the authority of Tyler v. Weed [1938], 285 Mich 460. If Tyler is to be understood and applied precedentially, it must be read in the light of its related antecedent written 9 years earlier. Easton v. Medema [1929], 246 Mich 130.\\n\\\"In Easton there was a 4-to-4 split on the question of whether an infant 5 years and 8 months old could he chargeable with contributory negligence. Justice Potter, wrote for the rule he attributed to Daniels v. Clegg [1873], 28 Mich 32, where the driver of a team of horses was a 20-year-old girl. It was urged by defendant that the minor-driver should have been held to the same degree of care that would have been required of her plaintiff-father. The Court rejected that rule and adopted, rather, the test of the degree of skill required by a person of her age and sex. In Justice Potter's opinion there follows immediately after a quote from Clegg an excerpt from Washington & G. R. Co. v. Gladmon, 15 Wall (82 US) 401 (21 L Ed 114). Its placement in the decision leads to the erroneous conclusion that it was included in Clegg. The excerpt reads in part:\\n\\\" ' \\\"Of an infant of tender years less discretion is required, and the degree depends upon his age and knowledge. Of a child three years of age less caution would be required than one of seven.\\\" ' Easton v. Medema, supra, 136.\\nThis quotation nowhere appears in Clegg. This citation and another from Plantza v. Glasgow Corp., 1910 Session Cases 786, reading also in part:\\n\\\" ' \\\"I reject altogether the idea that a boy of five cannot be guilty of contributory negligence.\\\" ' Easton v. Medema, supra, 136, 137.\\nare the seedlings from which the 'no age' doctrine in our State seems at least to have sprung. Carried to its ultimate, it would necessarily result in the conclusion that a creeper or 3-year-old toddler would be held to that degree of care to be reasonably expected of a creeper or toddler of the same age and experience. For this proposed rule, there were 4 votes.\\n\\\"Justice Fead, though concurring in the reversal and grant of a new trial, dissented as to the contributory negligence rule:\\n\\\" 'I concur with. Mr. Justice Potter except in his ruling that the question of plaintiff's contributory negligence was for the jury.\\n\\\" 'Regardless of the general principles governing care required of children and the weight and conflict of authority as to the age at which a child may be charged with contributory negligence (45 CJ p 1002), it is settled law of this State that a child under 6 years of age cannot be so charged. Johnson v. City of Bay City [1910], 164 Mich 251 (Ann Cas 1912B, 866), where the child was 5 years, 4 months old; Love v. Detroit, J. & C. R. Co. [1912], 170 Mich 1, the child being 5 years and 5 months of age; Beno v. Kloka [1920], 211 Mich 116, where the child was 5 years and 11 months of age, 3 months older than plaintiff here, and his alleged negligence was similar to that charged against plaintiff.\\n\\\" 'Upon this point the opinion of Mr. Justice Potter cannot prevail without overruling these cases. The circuit court properly held, as a matter of law, that, because of her age, plaintiff was not guilty of contributory negligence.' (Emphasis supplied.) Easton v. Medema, supra, 138.\\n^\\n\\\"We hereby determine that the rule in Michigan was and is, as stated by Justice McAllister in the following language:\\n\\\" 'In our determination of this case we follow the common-law rule announced by the numerous authorities, entitled to eminent respect, which hold that an infant under seven years of age is incapable of contributory negligence.' Tyler v. Weed, supra, p 488.\\\"\\nWe are of the opinion that the trial judge's decision is correct. We are not persuaded that the cases cited by plaintiffs, Henderson v. Detroit Citizens' Street-Railway Co. (1898), 116 Mich 368; Trudell v. Grand Trunk Railway Co. (1901), 126 Mich 73; and Harris v. Crawley (1912), 170 Mich 381, for their contention that the age of seven refers to mental and not chronological age actually support that position. In Henderson and Trudell our Supreme Court ruled that the judge should have directed a verdict for the defendant because the infants involved, ages eight and seven years four months, had sufficient intelligence to appreciate the danger involved and therefore were guilty of contributory negligence as a matter of law. In Harris, involving a 13-year-old girl who fell off a merry-go-round, the Court upheld a jury verdict for the plaintiff where the question of contributory negligence was submitted to the jury under essentially the same charge as given in the case at bar. None of these cases support the instant plaintiffs' contention that if the age of the minor in years is seven or more, but the mental age is under seven, contributory negligence cannot be considered but instead they indicate that the question is one of fact to be submitted to the jury. Accordingly, the trial judge did not err in refusing to instruct the jury that they could not consider plaintiff minor's contributory negligence as a matter of law but instead was correct in deciding that it was a jury question which they would determine based on what a \\\"reasonably careful minor of like age, mental capacity, and experience would do or would not do under such circumstances.\\\"\\nAffirmed. Costs to defendant.\\nAll concurred.\"}" \ No newline at end of file diff --git a/mich/2079675.json b/mich/2079675.json new file mode 100644 index 0000000000000000000000000000000000000000..efd7e8f723e78527b4f6e49edb5ab01dd3960ea9 --- /dev/null +++ b/mich/2079675.json @@ -0,0 +1 @@ +"{\"id\": \"2079675\", \"name\": \"PEOPLE v. SINCLAIR\", \"name_abbreviation\": \"People v. Sinclair\", \"decision_date\": \"1970-02-03\", \"docket_number\": \"Docket No. 2,997\", \"first_page\": \"255\", \"last_page\": \"259\", \"citations\": \"21 Mich. App. 255\", \"volume\": \"21\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T18:28:08.803566+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Lesinski, C. J., and J. H. Gillis and Quinn, JJ.\", \"parties\": \"PEOPLE v. SINCLAIR\", \"head_matter\": \"PEOPLE v. SINCLAIR\\n1. Evidence \\u2014 Polygraph Test \\u2014 Admissibility.\\nNeither the results of a polygraph test nor the conclusions of the person administering it are admissible in evidence.\\n2. New Trial \\u2014 Evidence\\u2014Polygraph Test \\u2014 Admissibility.\\nResults of three polygraph tests given to a prison inmate who signed an affidavit that he, not the defendant, had committed the armed robbery of whieh defendant was convicted, and the conclusions of the polygraph operator and of a police detective that the prison inmate had fabricated a story to absolve defendant, are inadmissible in ruling on defendant\\u2019s motion for a new trial.\\n3. New Trial \\u2014 Evidence\\u2014Witnesses\\u2014Prison Inmate \\u2014 Production.\\nDenial of a request that a prison inmate, who had made an affidavit absolving defendant of armed robbery, be produced at a hearing on defendant\\u2019s motion for a new trial was error where the question was whether there was sufficient cause to believe the absolving inmate\\u2019s confession so as to make probable a different result at a new trial, and the only fact bearing upon that confession was a police officer\\u2019s testimony denying the truth of it.\\nReferences for Points in Headnotes\\n[1, 2] 29 Am Jur 2d, Evidence \\u00a7 831.\\nPhysiological or psychological truth and deception tests. 23 ALR 2d 1306.\\n39 Am Jur, New Trial \\u00a7 165 et seq.\\nAppeal from Recorder\\u2019s Court of Detroit, Donald S. Leonard, J.\\nSubmitted Division 1 January 5, 1970, at Detroit.\\n(Docket No. 2,997.)\\nDecided February 3, 1970.\\nEthen Sinclair was convicted by a jury of armed robbery. Motion for new trial denied. Defendant appeals.\\nRemanded for rehearing on motion for new trial.\\nFrank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torino, Chief Appellate Lawyer, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.\\nJohn C. Bossenberger, for defendant on appeal.\\nBefore: Lesinski, C. J., and J. H. Gillis and Quinn, JJ.\", \"word_count\": \"1365\", \"char_count\": \"8103\", \"text\": \"Lesinski, C. J.\\nDefendant Ethen Sinclair was found guilty, following trial by jury, of armed robbery, MCLA \\u00a7 750.529 (Stat Ann 1969 Cum Supp \\u00a7 28.797). Defendant's motions for new trial were denied and this appeal was brought as of right.\\nAlthough several issues are raised on appeal, only one merits attention. Following his conviction, defendant moved for a new trial based solely on the grounds of newly-discovered evidence. On November 14, 1967, an inmate at Jackson prison, Ira Todd, signed an affidavit stating that he and not defendant Sinclair committed the crime here in question.\\nAt the hearings on defendant's motion for new trial, it developed that immediately after the Detroit Police Department learned of Todd's confession the department took several steps to determine the truth of the statement. These included a lie detector test, reverse lineups, and the questioning of Todd along with intervieivs with the three witnesses of the crime.\\nThe only witness at the hearings was the police detective in charge of the case, who described all the actions taken by the police and their results. At the close of his testimony, defense counsel requested that Todd be brought in to let the court determine the truth of his affidavit. The request was denied.\\nOn appeal defendant argues that the hearings on his motion were fundamentally unfair, thereby violating his right to due process. Two aspects of the hearings require us to agree and to remand for a new hearing.\\nAt the first hearing the fact that Todd was given three polygraph tests was brought out by a question from the Court. When defense counsel made his first indication that he would challenge the tests, the trial court stated that the results of the tests usually are not admissible evidence and the only purpose for which the tests would be considered is to determine whether the police had made an investigation of Todd's statement. At the second hearing on the motion, however, the court made the following remark in its last statement of record:\\n\\\"They did put Mr. Todd on a polygraph to determine whether or not there was any substance to his story. Although the results of a polygraph are not admissible in a proceeding in court, nevertheless, it was the conclusion of the polygraph operator and the police that this was a fabrication on the part of Mr. Todd merely to wipe off an offense for defendant Sinclair.\\\"\\nThis statement, together with the fact that it was upon questioning from the court that the polygraph test was first admitted into evidence, clearly indicates that weight was given it below.\\nIn People v. Paul F. Baker (1967), 7 Mich App 471, 475, this Court stated:\\n\\\"It is well settled in this State that the results of a polygraph test are not admissible into evidence. See People v. Becker (1942), 300 Mich 562. Neither are the conclusions of the person administering the test admissible. See People v. Welke (1955), 342 Mich 164. However, so far as we can determine, the question whether the fact that a polygraph test has been made is admissible has not been passed upon. We hold that because the results of a polygraph test are incompetent evidence, the fact that such a test was made is immaterial, and reference thereto should be excluded upon proper objection.\\\"\\nIt was, therefore, error to admit the test and give weight to the results. See, also, People v. Brocato (1969), 17 Mich App 277.\\nThe second difficulty with the hearing on defendant's motion held below was the refusal of the court to require the attendance of Todd following defendant's request that Todd be produced. Within the setting of the instant case, the question below was whether there was sufficient cause to believe Todd's confession so as to make probable a different result at a new trial. This was a factual matter. See People v. Semchena (1967), 7 Mich App 302.\\nIn denying defendant's request to have Todd produced the court responded: \\\"I don't think that it is necessary in view of the facts before the court at the present time.\\\" The only fact before the court, however, was the police officer's testimony denying the truth of Todd's statement. The court, there fore, effectively delegated tlie fact-finding process to the police department.\\nThe prosecutor argues that People v. Czarnecki (1928), 241 Mich 696, is determinative and requires affirmance. In People v. Mosden (1969), 381 Mich 506, however, the Court stated at p 512:\\n\\\"We are not unaware of the decision of this Court in People v. Czarnecki, 241 Mich 696, handed down in 1928, long before the 1963 decision of the United States Supreme Court in Townsend v. Sain [(1963), 372 US 293 (83 S Ct 745, 9 L Ed 2d 770) ]. Csarnecki is, at all events, distinguishable from the instant case in that there the defendant did not, as here, seek to have the absolving prison inmate brought into court to testify in his behalf at the hearing, nor did the trial court indicate in any way that such request would have been denied. Thus the question in the instant ease as to whether such denial is error was not there involved.\\\"\\nThis point of distinction, the first of three noted by the Court, is directly applicable to the instant case.\\nThe case is affirmed on all matters save those discussed in this opinion and the case is remanded for a rehearing on defendant's motion for new trial. If upon hearing, the trial court finds that there is sufficient evidence of the falsity of Todd's confession that his testimony would not have made a different result probable, the motion for new trial should be denied. It otherwise should be granted.\\nAll concurred.\\nThe affidavit reads:\\n\\\"People vs. Ethen Sinclair, No. A \\u2014 128917. State of Michigan, County of Jackson. Ira Todd, being first duly sworn, deposes and says that on February 11, 1966, he held up the Ward's Liquor Store at 3126 Fenkell, Detroit, Michigan.\\n\\\"Deponent further says that Ethen Sinclair, who is now serving 7-1/2 to 20 years in Jackson Prison, Michigan, is not guilty of the above crime.\\\"\\nIra Todd's signature was notarized.\\nSee People v. Keiswetter (1967), 7 Mich App 334, for the four elements required for a new trial based on newly-discovered evidence.\"}" \ No newline at end of file diff --git a/mich/2081237.json b/mich/2081237.json new file mode 100644 index 0000000000000000000000000000000000000000..c77f9618e57bab1c5e779203cf0e952ed09e17aa --- /dev/null +++ b/mich/2081237.json @@ -0,0 +1 @@ +"{\"id\": \"2081237\", \"name\": \"PEOPLE v. GOLIDAY\", \"name_abbreviation\": \"People v. Goliday\", \"decision_date\": \"1969-07-28\", \"docket_number\": \"Docket No. 5,708\", \"first_page\": \"336\", \"last_page\": \"338\", \"citations\": \"18 Mich. App. 336\", \"volume\": \"18\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T18:10:53.114675+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: J. H. Gillis, P. J., and R. B. Burns and Y. J. Brennan, JJ.\", \"parties\": \"PEOPLE v. GOLIDAY\", \"head_matter\": \"PEOPLE v. GOLIDAY\\n1. Constitutional Law \\u2014 Searches and Seizures \\u2014 Evidence.\\nThe provision of the Michigan Constitution allowing in evidence in any criminal proceeding any narcotic drug, firearm, bomb, or explosive, or any other dangerous weapon seized outside the curtilage of any dwelling house does not conflict with the United States Constitution provision on searches and seizures (US Const, Am 4; Const 1963, Art 1, \\u00a7 11).\\n2. Searches and Seizures \\u2014 Evidence\\u2014Criminal Law.\\nA .22-ealibcr rifle altered for use as a pistol and a knife obtained in a search of an automobile are admissible in evidence under the seareh and seizure clause of the Michigan Constitution (Const 1963, Art 1, \\u00a711).\\nReferences for Points in Headnotes\\n47 Am Jur, Searches and Seizures \\u00a7\\u00a7 6-8, 12, 13.\\n47 Am Jur, Searches and Seizures \\u00a7 \\u00a7 8, 18.\\nAppeal from Muskegon, Albert J. Engel, J.\\nSubmitted Division 3 June 5, 1969, at Grand Rapids.\\n(Docket No. 5,708.)\\nDecided July 28, 1969.\\nApplication for leave to appeal filed August 18, 1969.\\nThomas Goliday, Jr., was convicted of carrying a concealed weapon in a motor vehicle. Defendant appeals.\\nAffirmed.\\nFrank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Paul M. Ladas, Prosecuting Attorney, and Noel G. Petersen, Assistant Prosecuting Attorney, for the people.\\nMarcus, McCroslcey, Libner, Beamon, Williams & Dilley (Darryl R. Cochrane, of counsel), for defendant.\\nBefore: J. H. Gillis, P. J., and R. B. Burns and Y. J. Brennan, JJ.\", \"word_count\": \"612\", \"char_count\": \"3694\", \"text\": \"Per Curiam.\\nDefendant was convicted of carrying a dangerous weapon in a motor vehicle contrary to MCLA \\u00a7 750.227 (Stat Ann 1962 Rev \\u00a7 28-.424).\\nDefendant was a passenger in an automobile driven by John H. Merryweather. The car first came to the attention of the police officers because of its failure to have its lights on. When the police officer flicked the lights to inform Merryweather that his lights were out, Merryweather made a sharp turn and proceeded in the wrong direction on a one-way street. The police officers pursued the car and after several violations pulled the Merry-weather car over to the curb for reckless driving. One of the police officers noticed the defendant bend over in an action that appeared to the police officer to indicate that the defendant was hiding an object under the seat. Merryweather was 35 years of age and his two passengers were 18 years of age. The police officers searched the car looking for alcoholic beverages as they thought the minors might be in possession of alcoholic beverages, but discovered a knife and a .22 calibre rifle reconstructed in such a fashion that it could be used as a pistol. Later, bullets were found on the person of the defendant. Defendant moved in the trial court to suppress the evidence seized as fruits of an unlawful search and seizure.\\nOn appeal defendant claims that Const 1963, art 1, \\u00a7 11 violates US Const, Am 4. Const 1963, art 1, \\u00a7 11 reads:\\n' \\\"The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seised by a peace officer outside the curtilage of any dwelling house in this state.\\\" (Emphasis supplied.)\\nThis Court has already ruled that the provision of the Michigan Constitution of 1963 does not conflict with Amendment 4 of the United States Constitution. People v. Van Landingham (1967), 6 Mich App 128.\\nAffirmed.\"}" \ No newline at end of file diff --git a/mich/2108342.json b/mich/2108342.json new file mode 100644 index 0000000000000000000000000000000000000000..59850662e13898c209d227370c838be7a7b8d735 --- /dev/null +++ b/mich/2108342.json @@ -0,0 +1 @@ +"{\"id\": \"2108342\", \"name\": \"PEOPLE v. BOYNTON\", \"name_abbreviation\": \"People v. Boynton\", \"decision_date\": \"1973-04-26\", \"docket_number\": \"Docket No. 11429\", \"first_page\": \"748\", \"last_page\": \"750\", \"citations\": \"46 Mich. App. 748\", \"volume\": \"46\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T22:34:48.712989+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Danhof, P. J., and Holbrook and Bashara, JJ.\", \"parties\": \"PEOPLE v BOYNTON\", \"head_matter\": \"PEOPLE v BOYNTON\\n1. Criminal Law \\u2014 Evidence\\u2014Identification\\u2014Alibi\\u2014Question for Jury.\\nClaims of mistaken identification by a witness and alibi are matters which deal with the credibility of witnesses and generally are questions to be decided by the jury.\\n2. Criminal Law \\u2014 Jury Verdict \\u2014 Appeal and Error.\\nThe test used by the Court of Appeals in reviewing a jury verdict in a criminal case is whether or not there was sufficient evidence upon which, if believed by the jury, the defendant could be found guilty beyond a reasonable doubt.\\n3. Criminal Law \\u2014 New Trial \\u2014 Newly Discovered Evidence.\\nA new trial will be granted for newly discovered evidence only if there is a showing that (1) the evidence is newly discovered, (2) the evidence is not merely cumulative, (3) the evidence is such as to render a different result probable on retrial, and (4) the defendant could not with reasonable diligence have produced it at trial.\\n4. Criminal Law \\u2014 New Trial \\u2014 Newly Discovered Evidence.\\nThe trial court properly denied a defendant\\u2019s motion for new trial because of newly discovered evidence where the newly discovered evidence did not relate to the\\u2019 defendant\\u2019s guilt but only served to impeach an identification witness\\u2019s credibility because such evidence is not sufficient to make a different result probable on retrial.\\nAppeal from Bay, John X. Theiler, J.\\nSubmitted Division 3 March 9, 1973, at Lansing.\\n(Docket No. 11429.)\\nDecided April 26, 1973.\\nReferences for Points in Headnotes\\n58 Am Jur, Witnesses \\u00a7\\u00a7 862, 863.\\n5 Am Jur 2d, Appeal and Error \\u00a7 838.\\n5 Am Jur 2d, Appeal and Error \\u00a7\\u00a7 851, 986.\\nConrad Boynton was convicted of uttering and publishing. Defendant appeals.\\nAffirmed.\\nFrank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Eugene C. Penzien, Prosecuting Attorney, and George B. Mullison, Assistant Prosecuting Attorney, for the people.\\nJames G. Orford, for defendant.\\nBefore: Danhof, P. J., and Holbrook and Bashara, JJ.\", \"word_count\": \"704\", \"char_count\": \"4206\", \"text\": \"Per Curiam.\\nDefendant was convicted of uttering and publishing and sentenced to from 4 to 14 years imprisonment.\\nDefendant first contends that the evidence adduced at trial was not sufficient to support a finding of guilty beyond a reasonable doubt. Defendant argues that the identification by the bartender who cashed the check should not have been believed and that, in light of the testimony by his alibi witnesses, the evidence was insufficient. Claims of mistaken identification by a witness and alibi are matters which deal with the credibility of witnesses and generally are questions to be decided by the jury. People v Caldwell, 20 Mich App 224 (1969); People v Hughes, 26 Mich App 355 (1970).\\nFurthermore the test used by this Court in reviewing a jury verdict in a criminal case is whether or not there was sufficient evidence upon which, if believed by the jury, the defendant could be found guilty beyond a reasonable doubt. People v Floyd, 15 Mich App 284 (1968); People v Stewart, 36 Mich App 93 (1971). A review of the testimony in the instant case reveals ample evidence, if believed, to support a verdict of guilty.\\nDefendant further contends that the trial court erred in denying his motion for a new trial based on newly discovered evidence.\\nA new trial will be granted for newly discovered evidence only if there is a showing: (a) that the evidence is newly discovered; (b) that the evidence is not merely cumulative; (c) that the evidence is such as to render a different result probable on retrial; and (d) that the defendant could not with reasonable diligence have produced it at trial. People v Cummings 42 Mich App 108, 110 (1972); People v Kennedy, 22 Mich App 524, 528 (1970).\\nThe newly discovered evidence in the instant case does not relate to defendant's guilt as was the case in People v McAllister, 16 Mich App 217 (1969). The newly discovered evidence would, at best, serve only to impeach the bartender's credibility, which we have generally held is not sufficient to make a different result probable on retrial. People v Kennedy, supra; People v Winstanley, 20 Mich App 528 (1969). We feel this rule is applicable to the case at bar and do not believe that a different result would occur on retrial.\\nAffirmed.\"}" \ No newline at end of file diff --git a/mich/2132623.json b/mich/2132623.json new file mode 100644 index 0000000000000000000000000000000000000000..29b3eccdd04f66e9e77a9d4ba89593b44d35ca4e --- /dev/null +++ b/mich/2132623.json @@ -0,0 +1 @@ +"{\"id\": \"2132623\", \"name\": \"WILLIAMS v. SLAZINSKI\", \"name_abbreviation\": \"Williams v. Slazinski\", \"decision_date\": \"1974-08-27\", \"docket_number\": \"Docket No. 17298\", \"first_page\": \"221\", \"last_page\": \"226\", \"citations\": \"55 Mich. App. 221\", \"volume\": \"55\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T17:24:43.392964+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: V. J. Brennan, P. J., and R. B. Burns and R. L. Smith, JJ.\", \"parties\": \"WILLIAMS v SLAZINSKI\", \"head_matter\": \"WILLIAMS v SLAZINSKI\\n1. Accord and Satisfaction \\u2014 Contracts\\u2014Consideration\\u2014Extinguishment of Demand \\u2014 Foundation of Further Action.\\nAcceptance of a promise or agreement in satisfaction of a demand where based upon sufficient consideration extinguishes the original demand, and the original demand cannot be the foundation of an action.\\n2. Accord and Satisfaction \\u2014 Contracts\\u2014Consideration\\u2014Extinguishment of Demand \\u2014 Torts\\u2014Foundation of Further Action \\u2014 Affirmative Defenses \\u2014 Breach of Contract.\\nAn agreement between parties which released and discharged defendant and her insurance company from tort liability in return for certain monies and the promise of future payments extinguished the original demand- and eliminated it as the foundation of a tort action, where nothing on the record indicates that the parties to the contract intended it to operate in any other manner; the release agreement operated as a valid affirmative defense to plaintiff\\u2019s action in tort, and plaintiff\\u2019s remedy was in contract for breach of the settlement agreement, not in tort for the underlying claim.\\nReferences for Points in Headnotes\\n[1, 2] 1 Am Jur 2d, Accord and Satisfaction \\u00a7\\u00a7 51, 52.\\n[2] 1 Am Jur 2d, Accord and Satisfaction \\u00a7 5.\\n74 Am Jur 2d, Torts \\u00a7\\u00a7 69, 85 et seq.\\nAppeal from Wayne, Theodore R. Bohn, J.\\nSubmitted Division 1 May 15, 1974, at Detroit.\\n(Docket No. 17298.)\\nDecided August 27, 1974.\\nComplaint in the Common Pleas Court of Detroit by Naomi Williams against Rose Slazinski for damages for personal injuries received in a pedestrian-automobile accident. Verdict and judgment for plaintiff. Defendant appealed to circuit court.\\nAffirmed. Defendant appeals on leave granted. Reversed.\\nKenneth M. Davies, P. G, for plaintiff.\\nRouse, Selby, Dickinson, Pike & Mourad (by David J. Lanctot), for defendant.\\nBefore: V. J. Brennan, P. J., and R. B. Burns and R. L. Smith, JJ.\\nFormer circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, \\u00a7 23 as amended in 1968.\", \"word_count\": \"1475\", \"char_count\": \"9054\", \"text\": \"V. J. Brennan, P. J.\\nOn or about August 5, 1969, plaintiff, Naomi Williams, was injured when she was allegedly struck by an automobile driven by defendant, Rose Slazinski. According to plaintiff, defendant's automobile ran over her foot and knocked her down. Defendant denied liability, however, and maintained that her car did not even touch plaintiff. Approximately two weeks after the alleged accident occurred, defendant's insurer entered into a settlement agreement with plaintiff whereby plaintiff released and discharged defendant and her insurance company from all claims growing out of the accident in return for the payment of $50 for known medical expenses, $307.03 for lost wages and $300 for pain and suffering and for defendant's insurance company's promise to pay $20.24 for each day of \\\"continuous and necessary confinement indoors due to injury\\\" caused by the accident and its promise to pay all reasonable medical and hospital expenses, up to $5,000, incurred within one year of the settlement and caused by the accident. Plaintiff was given a check by defendant's insurer for $657.03 and this check was duly cashed.\\nIn September, 1969, plaintiff submitted a hospi tal bill to defendant's insurer for $1,400. Plaintiff contended that the bills were for back injuries suffered as a result of the accident. Defendant's insurer, however, felt that most of the medical bills related to a previous accident and various pre-existing physical ailments and, therefore, refused to pay the bills until their relationship to the accident was verified.\\nPlaintiff never supplied the requested verification information, but, instead, instituted the present negligence action against defendant in the Common Pleas Court of the City of Detroit. Defendant answered plaintiff's complaint by way of general denial and set up the release as an affirmative defense. Plaintiff responded contending that the release was invalid because she did not, at the time of its execution, fully understand its terms. Defendant filed a motion for accelerated judgment based on the release but her motion in this regard was denied.\\nOn the day trial was to begin defendant moved for separate trials on the questions of tort liability and validity of the release. Defendant's purpose in requesting separate trials on these issues was to prevent the mentioning of insurance in the tort action. See MCLA 500.3030; MSA 24.13030. This motion was also denied and the cause proceeded to trial.\\nIn addition to claiming the release agreement to be invalid, plaintiff's position at trial was that the failure of defendant's insurer to pay the $1,400 upon presentation of the hospital bills constituted a breach of the terms of the release agreement thereby giving her the right to sue either on the contract or for the underlying liability. Specifically, plaintiff maintained that defendant's alleged breach was sufficient to permit her to sue defend ant in tort, despite the release agreement, for negligently running over her foot and knocking her down thereby causing injury. Defendant, on the other hand, maintained that if the release was valid, then plaintiffs sole remedy was to sue in contract for breach of the release agreement. In furtherance of this position, defendant requested the trial judge to instruct the jury that if they found the release to be valid, their verdict should be no cause for action. The trial court refused to give the requested instruction and instructed the jury, instead, that if they found the release valid, but subsequently breached, they could award plaintiff damages in tort.\\nThe jury found the release valid, but breached, and awarded plaintiff $5,000.00 damages. Defendant filed a motion for new trial which was denied on March 29, 1972, and the judgment of the Common Pleas Court was affirmed by the Wayne County Circuit Court on January 9, 1973. It is from this decision that defendant now appeals upon leave granted.\\nAlthough several issues are presented by defendant for our consideration, we find it necessary to reach only one.\\nDefendant claims the trial court erred in failing to give his requested instruction. We agree. In Henderson v McRae, 148 Mich 324, 327-328; 111 NW 1057 (1907), our Supreme Court stated:\\n\\\"In matters of accord and satisfaction, there is a well defined and easily recognized distinction between two classes of agreements:\\n\\\"1. Where the agreement of the creditor is to accept the performance of the debtor's new promise or agreement in satisfaction of the demand.\\n\\\"2. Where such promise or agreement itself, based upon sufficient consideration, is accepted in satisfaction of the demand. 2 Chitty on Contracts (11th Am Ed), p 1124.\\n\\\"And in this class of cases it must clearly appear that the intention of the party was to accept such promise, and not the performance, in satisfaction of the original demand. In the first class of cases the accord must be fully executed to bar an action on the original demand. 1 Cyc p 312, and cases cited. In the second class the original demand is extinguished, and cannot be the foundation of an action.\\\"\\nSee Fricke v Forbes, 294 Mich 375; 293 NW 686 (1940); Belrose v Kanitz, 284 Mich 497; 280 NW 33 (1938). See also Hoffman v Burkhammer, 373 Mich 187; 128 NW2d 503 (1964).\\nIn the case at bar the agreement between the parties released and discharged Rose R. Slazinski and her insurance company \\\"of and from all actions, causes of action, claims and demands on account of, or in any way growing out of' the alleged accident in consideration for the \\\"payment\\\" of $675 and for the \\\"promise of payment\\\" for days of continuous confinement and hospital and medical bills caused by the accident. The language of the contract is clear. In return for the payment of a certain sum of money and the promise of future payments, plaintiff released and discharged defendant from all claims or causes of action arising out of the alleged accident. This clearly brings the contract before us into the second class of agreements recognized in Henderson v McRae, supra. Here the payment of money and the promise of payment, by the terms of the contract, was accepted in satisfaction of the demand thereby extinguishing the original demand and eliminating it as the foundation of a tort action. Nothing on the record indicates that the parties to this contract intended it to operate in any other manner. This being the case, it is clear that the release agreement operated as a valid affirmative defense to plaintiffs action in tort. See Belrose v Kanitz, supra. Plaintiffs remedy was in contract for breach of the settlement agreement, not in tort for the underlying claim. It is clear, therefore, that, under the facts of this case, the trial court erred in failing to give the instructions requested by defendant or instructions of similar import. We therefore reverse the decisions of the lower courts and order the entry of a judgment of no cause for action in favor of defendant, but without prejudice to plaintiffs right to maintain an action in contract.\\nReversed.\\nAll concurred.\"}" \ No newline at end of file diff --git a/mich/2135726.json b/mich/2135726.json new file mode 100644 index 0000000000000000000000000000000000000000..8303a82c291a81656d942e86c2a0994c75f8cb73 --- /dev/null +++ b/mich/2135726.json @@ -0,0 +1 @@ +"{\"id\": \"2135726\", \"name\": \"PEOPLE v. BILLS; PEOPLE v. DANCER\", \"name_abbreviation\": \"People v. Bills\", \"decision_date\": \"1974-05-29\", \"docket_number\": \"Docket Nos. 14442, 14257\", \"first_page\": \"339\", \"last_page\": \"358\", \"citations\": \"53 Mich. App. 339\", \"volume\": \"53\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T18:56:37.876083+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: J. H. Gillis, P. J., and Holbrook and Van Valkenburg, JJ.\", \"parties\": \"PEOPLE v BILLS PEOPLE v DANCER\", \"head_matter\": \"PEOPLE v BILLS PEOPLE v DANCER\\n1. Criminal Law \\u2014 Evidence\\u2014Sketches\\u2014Witnesses\\u2014Identification \\u2014Hearsay\\u2014Res Gestae.\\nAdmission into evidence of a sketch which was a composite picture made by a police artist from information furnished by a witness was proper, where the witness had twice viewed the subject on the day of a crime and soon after, when his memory was fresh and nothing had occurred to interfere with an accurate relating of the facts, described the subject to the artist who followed his instructions and made a composite drawing of the subject person; the fact that the witness could not identify one of the defendants as the person is not fatal to the sketch\\u2019s admissibility because the description was more reliable under the circumstances than an in-court identification, dimmed by lapse of time and memory, and it is not unusual for a witness after a lapse of time' to be unable to remember and identify a person; the sketch was admissible under the res gestae exception to the hearsay rule.\\n2. Criminal Law \\u2014 Evidence\\u2014Sketches\\u2014Witnesses\\u2014Identification \\u2014Instructions to Jury \\u2014 Accomplices\\u2014Immunity from Prosecution.\\nInstruction to the jury that a police artist\\u2019s sketch received in evidence which was based upon a witness\\u2019s description of a person he saw near the scene of the crime was to be used to determine if the sketch bore any resemblance or relation to either of two defendants was proper where the jury as finders of fact could consider the sketch in connection with one of the accomplices who was granted immunity, there was no theory of the defendants which asserted nor any evidence which showed that the prosecution\\u2019s witness was out of the car and walking around the buildings the morning of the crime, and the instructions permitted the jury to consider the sketch as depicting the prosecution witness or any other person, in accord with the witness\\u2019s testimony that it depicted a person he saw that morning on two occasions.\\nReferences for Points in Headnotes\\n21 Am Jur 2d, Criminal Law \\u00a7 369.\\n21 Am Jur 2d, Criminal Law \\u00a7 147.\\n21 Am Jur 2d, Criminal Law \\u00a7 494.\\n21 Am Jur 2d, Criminal Law \\u00a7 484 et seq.\\n21 Am Jur 2d, Criminal Law \\u00a7\\u00a7 120-123, 127, 129.\\n40 Am Jur 2d, Homicide \\u00a7 72.\\n3. Criminal Law \\u2014 Accomplices\\u2014Immunity from Prosecution \\u2014 Instructions to Jury \\u2014 Witnesses\\u2014Credibility\\nFailing to refer specifically to an accomplice, who was granted immunity by the prosecution, while giving instructions to the jury regarding credibility of witnesses, was not error where during the trial the jury was informed through the examination of the prosecution witness that he had been granted immunity on the charge and he would not be tried for that offense; with this knowledge the specific words in the instruction \\\"[y]ou may take into consideration a witness\\u2019s interest, bias or prejudice, if any, his relationship to the parties involved in the case, any motive that he might have to testify one way or the other\\u201d covered the accomplice.\\n4. Criminal Law \\u2014 Included Offenses \\u2014 Instructions to Jury \\u2014 Evidence.\\nA trial court is not required to charge the jury on lesser included offenses where there is no evidence present in a case that would show the commission of a lesser offense.\\n5. Criminal Law \\u2014 Accomplices\\u2014Immunity from Prosecution\\u2014 Cross-Examination \\u2014 Plea of Guilty \\u2014 Other Crimes \\u2014 Witnesses \\u2014 Credibility.\\nA ruling that the defense, on cross-examination of an accomplice who was granted immunity by. the prosecution, was precluded from cross-examining the witness relative to an original charge against him but could cross-examine as to the events which resulted in a plea of guilty to a reduced charge was proper; the fact that the plea of guilty was offered and accepted on an unrelated crime which was committed by the witness was the subject of limited cross-examination and the ruling did not preclude the defense from attacking the witness\\u2019s credibility by showing what was promised him by the authorities as a result of the plea of guilty.\\n6. Criminal Law \\u2014 Indictment and Information \\u2014 Aider and Abettor \\u2014 Principal\\u2014Due Process.\\nAn aider and abettor may be indicted, tried, and on conviction be punished as a principal, and no denial of due process results from charging an aider and abettor as a principal.\\n7. Homicide \\u2014 Felony Murder \\u2014 Constitutional Law.\\nThe felony-murder rule is constitutional.\\nAppeal from Wayne, John D. O\\u2019Hair, J.\\nSubmitted Division 1 April 10, 1974, at Detroit.\\n(Docket Nos. 14442, 14257.)\\nDecided May 29, 1974.\\nLeave to appeal applied for.\\nDanny L. Bills and Lee J. Dancer were convicted of first-degree murder. Defendants appeal.\\nAffirmed.\\nFrank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Thomas A. Ziolkowski, Assistant Prosecuting Attorney, for the people.\\nDaniel A. Burress, P. C, for defendant Bills on appeal.\\nJoseph S. Cohen, for defendant Dancer on appeal.\\nBefore: J. H. Gillis, P. J., and Holbrook and Van Valkenburg, JJ.\\nFormer circuit judge, sitting on the Court of Appeals by assignment pursuant to Const \\u00cd963, art 6, \\u00a7 23 as amended in 1968.\", \"word_count\": \"5846\", \"char_count\": \"33189\", \"text\": \"Holbrook, J.\\nThe record discloses the facts in this felony-murder case to show that defendants Danny Lee Bills and Lee James Dancer and Michael G. Walker were together on March 12, 1971, from about 10 p.m. until sometime after the crime took place on Saturday morning, March 13, 1971. Michael G. Walker was granted immunity and turned state's evidence and related the actions taken by the parties.\\nHe stated that they had agreed to rob the Goddard Bar and went to the bar about 1:30 or 2 a.m. on March 13. They decided there were too many people in the bar at the time. They visited the Palace Restaurant and proceeded to a poker game in Lincoln Park, where they stayed until about 9 a.m. Defendant Bills had a gun. There was some talk about getting to see the victim without having to encounter the dogs that were present at his residence above his place of business. They tried to get sleeping tablets for the dogs, but were not successful.\\nThen it was decided to call the victim, tell him they were from the telephone company, would be there to put in new wires to the bar, and ask him to have the dogs removed from the porch. They purchased an orange stocking cap at Topps in Southgate, which Walker testified was worn by Bills.\\nFrom there, the three proceeded to the bar where Bills exited the automobile wearing the cap, went around the building and came back. He advised Dancer and Walker that the owner should be told that the telephone man was upon the porch. After Dancer did the same and returned, Bills went around back and went upstairs over the bar and was seen by Walker in the presence of the owner, Charles Wasson. The car was then driven to the rear of the parking lot where Dancer and Walker remained waiting for Bills. Walker was in the passenger seat. The apartment door was then seen to fly open and defendant Bills came running down the stairs and out toward Goodard Road. The cap was not on his head and he was running bent over. Dancer then backed the automobile out of the parking lot, drove west along Goddard Road in front of what was described as Seaway Construction Company where Bills got into the back seat. Bills did not have anything with him when he returned. Walker and the two defendants then drove to the home of one Mrs. Rideout and left the car there, and went with her and others to th\\u00e9 Hut Bar in Wyandotte. Mrs. Rideout testified that the three were driven to the Palace Restaurant where Walker's car was picked up.\\nSometime later, Walker read a local newspaper and an artist's sketch purporting to be a sketch of one of the perpetrators of the crime. Thereafter, he got a call from defendant Bills concerning the sketch. The artist's sketch was based on information provided the police by Mr. Kincaid, who testified that on March 13, 1971, at about 10:30 a.m., he was working at his father's store, which was separated by a narrow parking lot from the Goddard Bar, and saw a man with an orange stocking cap looking in the window. Forty-five minutes later, he saw the same man running from the adjacent parking lot into a slow moving automobile. Thereafter, defendants Bills and Dancer were arrested and charged with first-degree murder. They were jointly tried in the Wayne County Circuit Court before the Honorable John D. O'Hair, in a jury trial that commenced March 7, 1972, and concluded April 4, 1972. Defendant Bills did not take the stand. Defendant Dancer did take the stand, denied being involved in any way and supplied testimony which conflicted with that of Walker as to the whereabouts of both defendant Bills and himself at the time of the alleged felony murder.\\nBoth defendants were found guilty as charged and sentenced to life imprisonment.\\nThe defendants raise several issues for determination by this Court. ,\\nI\\nDid the trial court err in admitting into evidence the sketch or composite picture of a person described by a witness who saw that person in close proximity of the crime and on two different occasions the morning of the crime?\\nMr. Kincaid testified he saw the subject, first with an orange stocking cap on when the subject was looking into the store, at about 10:30 a.m., March 13, 1971; and secondly, about three-quarters of an hour later when he saw the subject, bent over, running and clutching a paper sack close to his body, at which time the subject was not wearing the orange stocking cap. Mr. Kincaid went to the police station about 1:30 p.m. the same day and described the subject to Officer Killebrew's daughter and she made the composite picture. The pertinent part of this testimony is as follows:\\n\\\"Mr. Easton (assistant prosecuting attorney): I will ask that this be marked as People's Proposed Exhibit 23. (A sketch was marked as People's Proposed Exhibit No. 23 for identification by the court reporter.)\\n\\\"Q. (by Mr. Easton, continuing): Mr. Kincaid, I will show you \\u2014 again, try to keep it so it's only facing you. Have you seen that before?\\n'A. Yes, sir.\\n\\\"Q. Who drew that?\\n\\\"A. This would be Mr. Killebrew's daughter.\\n\\\"Q. That took place in the Police Department?\\n'A. Yes, sir.\\n\\\"Q. Now, looking at that, does that refresh your memory as to the description you gave, as far as you have mentioned the long side burns?\\n'A. Yes.\\n\\\"Q. Now, looking at it, is there anything else about that face you recall having described to the young lady?\\n\\\"A. It would be about the same as mine, that I gave it to her right here that I can recall.\\n\\\"Q. What I am referring to, that mustache\\u2014\\n\\\"Mr. Burress (defense attorney): I am going to object\\u2014\\n\\\"The Court: Sustained.\\n\\\"Q. (by Mr. Easton, continuing): Well, looking it over carefully, is there anything that you described here that is different than you described to the young lady?\\n\\\"Mr. Burress: Well, objection, your Honor.\\n\\\"Again, he described to the jury the basis upon which he described this person to the person drawn in the picture. It's obvious that the picture is different than the testimony.\\n\\\"The Court: I am not sure it is.\\n\\\"The question was objectionable because it was leading.\\n\\\"Mr. Easton: I will try to rephrase it.\\n\\\"Q. (by Mr. Easton, continuing): Have you had a chance to look at this?\\n\\\"A. Yes.\\n\\\"Q. Does this fairly represent the person you described to Officer Killebrew's daughter?\\n\\\"A. Yes, sir.\\n\\\"Q. As it stands there, as it is on that piece of paper, that represents the person that you saw; is that right?\\n\\\"A. Yes, sir.\\n\\\"Q. Is there any feature on that that you would like to change? Is there anything in that drawing you would now say you didn't see on March the 13th?\\n\\\"A. No, sir, not that I can recall.\\n\\\"Q. Did you only attend one sketching?\\n\\\"A. Yes, sir, that I can recall.\\n\\\"Q. This was the only sketch that you saw done in your presence?\\n\\\"A. Well, she had some, run some copies which they made on the printing press and she made a big stack of copies of the same drawing.\\n*'Q. In achieving this sketch, did you describe the eyes and nose and so on?\\n\\\"A. Yes, sir.\\n\\\"Q. The general contour of the face, did you describe that?\\n'A. Yes, sir.\\nr'Q. And the chin, the neck?\\n'A. Yes, sir.\\n\\\"Q. Did you feel that young lady, then, transferred these ideas on paper\\u2014\\n'A. Yes, sir.\\n\\\"Q. \\u2014fairly well?\\n'A. She had one of those machines in front of her, make up machines with the different eyes and noses and stuffs on the plates.\\n\\\"Q. You were able, then, to compare a lot of different eyes and noses and so on?\\n'A. Yes, sir.\\\"\\nBoth the defendants and the people cite the case of State v Ginardi, 111 NJ Super 435; 268 A2d 534; 42 ALR3d 1198 (1970). In that case the defendant urged the Court to follow the New York rule that forbids the use of a composite picture made by an artist from information furnished by a witness or victim. The New Jersey Court in its opinion pointed out that the rule in New York is the same rule which (in that state) governs admissibility of a prior identification by the witness and the fact that New York courts exclude evidence of extrajudicial identifications of a composite sketch, not because of any inherent difference between sketches and photographs but because in New York all forms of extrajudicial identifications are deemed inadmissible hearsay, unless they follow within the limited scope of the state's code of criminal procedure, or are otherwise admissible under the recent fabrication exception to the hearsay evidence rule.\\nThe New Jersey court in deciding the case stated on pages 453-454 of 111 NJ Super; pages 543-544 of 268 A2d; pages 1211-1212 of 42 ALR3d as follows:\\n\\\"New Jersey and the majority of the other states which have dealt with the question have rejected the rule and philosophy of the New York court. They have adopted the view expressed years ago by Dean Wigmore, 4 Wigmore, Evidence (3d ed 1940), \\u00a7 1130 at 208, that evidence as to a prior identification of an accused is generally more reliable than the same witness' identification of the accused at the trial. State v. Williams, 39 NJ 471, 489; 189 A2d 193 (1963), cert den 382 US 964; 86 S Ct 449; 15 L Ed 2d 366 (1965); State v Matlack, 49 NJ 491, 498; 231 A2d 369 (1967), cert den 389 US 1009; 88 S Ct 572; 19 L Ed 2d 606 (1967); State v Sinclair, 49 NJ 525, 545-547; 231 A2d 565 (1967); see also, People v Gould, 54 Cal 2d 621; 7 Cal Rptr 273, 275; 354 P2d 865, 867 (Sup Ct 1960); State v Nordstrom, 244 A2d 842, 846-847 (RI Sup Ct 1968); State v Childers, 313 SW2d 728, 731 (Mo Sup Ct 1958); Judy v State, 218 Md 168; 146 A2d 29, 31-33 (Ct App 1958).\\n. \\\"In this state, a pretrial identification, if made under circumstances precluding unfairness and unreliability, is admissible where the person who made the identification is in court as a witness; and both the identifying witness and third persons can testify about such an identification. State v Matlack, 49 NJ 491; 231 A2d 369 (1967); State v Williams 39 NJ 471, 489; 189 A2d 193 (1963), certiorari denied 382 US 964; 86 S Ct 449, 450; 15 L Ed 2d 366 (1965). [State v Sinclair, supra, 49 NJ at 545; 231 A2d at 575],\\n\\\"Further, the rule applies to pretrial identification of a photograph or photographs, State v Matlack, supra, 49 NJ at 497-498; 231 A2d 369; and the photographs may be admitted into evidence, State v Dancyger, 29 NJ 76, 91; 148 A2d 155 (1959), cert den 360 US 903; 79 S Ct 1286; 3 L Ed 2d 1255; State v O'Leary, 25 NJ 104, 115; 135 A2d 321 (1957). (It may be noted that police procedures of seeking initial identifications from photographs have received the approval of the United States Supreme Court. Simmons v United States, 390 US 377, 384; 88 S Ct 967, 971; 19 L Ed 2d 1247, 1253 [1968]).\\n\\\"What has been said with respect to the admissibility of an extra-judicial identification of a photograph is fully applicable to an extra-judicial identification of a composite sketch prepared from a description given by a victim and by him identified, when the composite was completed, as a likeness of the culprit. In each case the eyewitness' statement is that what he sees, be it a photograph or a composite sketch, looks like the offender. Indeed, the procedures used in this case in preparing the composite would appear practically to eliminate* the danger present in other extra-judicial identifications, whether of persons or of photographs, that the person or photograph to be selected was suggested to the eyewitness by others present at the identification.\\\"\\nIn the case of People v Poe, 388 Mich 611, 616; 202 NW2d 320, 322-323 (1972), the Court reiterated the law in Michigan that pretrial identifications are permissible.\\nTherefore, the reasoning of the majority opinion in Ginardi would approve the trial court's action in admitting the sketch.\\nWe now turn to the dissent in Ginardi, 111 NJ Super p 457-458; 268 A2d p 546; 42 ALR3d p 1214, wherein it is stated in part as follows:\\n\\\"Such sketches have been deemed admissible where the descriptions on which they were based were made so soon after the crime as to qualify under the 'res gestae' or 'spontaneous utterance' exception to the hearsay rule, State v Davis, 91 NJ Super 470, 474-476; 221 A2d 47 (App Div 1966), cert den 48 NJ 137; 224 A2d 323 (1966); Commonwealth v Rothlisberger, 197 Pa Super 451; 178 A2d 853 (Super Ct 1962) (dictum, 178 A2d at 853), or by way of exception based upon a justified buttressing of the in-court identification testimony of a witness whose identification of defendant has been attacked by the defense as a recent fabrication. People v Coffey, 11 NY2d 142; 227 NYS2d 412; 182 NE2d 92 (Ct App 1962). As noted above, the substance of this latter exception is now codified in this state by way of Evidence Rule 20 as one of the exceptions to the absolute prohibition of any evidence to support the credibility of a witness.\\n\\\"Admission of the sketches here involved obviously does not fall within the 'spontaneous utterance' exception, the giving of the descriptions and the attendant preparation of the sketches having taken place two days after the criminal event.\\\" (Emphasis in original.)\\nIn the instant case Mr. Kincaid viewed the subject twice on the morning of the crime \\u2014 a few minutes before and a few seconds after the crime. Soon thereafter, at 1:30 p.m., Mr. Kincaid, when his memory was fresh and nothing having occurred to interfere with an accurate relating of the facts, described the subject to the artist who followed his instructions and made a composite drawing of the subject person. It can be said that the subject description was more reliable under the circumstances than an in-court identification, dimmed by lapse of time and memory. The fact that Mr. Kincaid could not identify one of the defendants as the subject person is not fatal to the sketch's admissibility. It is not unusual for a witness after a lapse of time to be unable to remember and identify a person. Even under the ruling law stated in the dissent the sketch was admissible under the res gestae exception to the hearsay rule. We find no error in the trial judge's action in admitting the sketch.\\nII\\nDefendants claim that the trial judge erred in not instructing the jury that in considering the sketch as finders of fact they could consider it in connection with one of the accomplices who was granted immunity.\\nThis claim is based on the provision of MCLA 768.29; MSA 28.1052, which provides in part: \\\"instruct the jury as to the law applicable to the case and in his charge make such comment on the evidence, the testimony and character of any witnesses, as in his opinion the interest of justice may require\\\".\\nThe trial judge during the taking of testimony instructed the jury on this matter as follows:\\n\\\"Mr. Easton, just a moment, please.\\n\\\"Members of the jury, the court would like to correct a misstatement that it made.\\n\\\"The court, during the time it was receiving People's Proposed Exhibit No. 23 into evidence, made a statement to the effect that Mr. Kincaid gave a verbal description to an artist and that that description related to either of the defendants.\\n\\\"I do not believe that Mr. Kincaid directly made such a statement in his testimony.\\n\\\"The court received this Exhibit, People's Exhibit 23 as an artist's sketch based upon Mr. Kincaid's description of a person he saw at or in close proximity to the Goddard Bar on the morning of March 13, 1971. It is for you to determine if this artist's sketch bears any resemblance or relation to either of the defendants.\\n\\\"The point that I am attempting to make is simply that I do not believe that Mr. Kincaid at any time in his testimony stated that this artist's sketch was a picture of either of the defendants. His testimony was that this was an artist's sketch of a person whom he saw at or in close proximity to the Goddard Bar.\\n\\\"Any statement that I have made contrary to this you are to disregard, members of the jury.\\\"\\nThere was no theory of the defendants that asserted, nor was there any evidence, that Mr. Walker was out of the car and walking around the buildings the morning of the crime. Also the instructions permitted the jury to consider the sketch as depicting Mr. Walker or any other person, in accord with John Kincaid's testimony\\u2014 that it depicted a person he saw that morning on two occasions.\\nThe instructions were proper and no error resulted.\\nIll\\nDid the court err in failing to specifically refer to an accomplice, while giving the instructions to the jury regarding credibility of witnesses?\\nDefendants contend that the court erred in failing to give the jury the following instructions:\\n\\\"(4) It is proper for the defense to prove the expectation of gain of any witness for the prosecution whether founded upon any agreement with the prosecution or not, under which said witness for the prosecution testified, and if the defense have made a showing that there is or was such expectation of gain, the testimony of such witness for the prosecution must be received with great caution. People v Knoll, 258 Mich 89, 100; 242 NW 222 (1932).\\\"\\nThe trial judge gave very thorough instructions on the subject of credibility of witnesses and stated in part as follows:\\n\\\"As the sole triers of the facts, you must determine which witnesses you will believe and what weight you will give to their respective testimony. If you should conclude that any witness has knowingly testified falsely on any material issue of fact, you may disregard that witness's entire testimony. However, if you believe that there are parts of such witness's testimony that are worthy of belief or which have been corroborated by other evidence that you believe is worthy of belief, then you may accept those parts as credible and reject those parts of the witness's testimony which you feel are unworthy of belief.\\n\\\"You are the sole judges of the credibility of the witnesses and the weight to be given to their testimony. I will tell you now that credibility means truthfulness, believeability [sic] You may take into consideration a witness's interest, bias or prejudice, if any, his relationship to the parties involved in the case, any motive that he might have to testify one way or the other; the probability of the story related by him and all the other circumstances and facts in evidence which in your judgment would add to or detract from his credibility or the weight to be given to his testimony.\\n\\\"In weighing the testimony of the witness, you have a right to consider his candor and fairness, his manner and bearing while testifying before you, the reasonableness of his story, the means and opportunity of knowing the facts in the case and in all other matters that tend to impress your minds with the truth or untruth of his testimony.\\n\\\"If there is a conflict in the testimony of the witness, it is your duty to say where the truth lies. You are not bound to accept as true the statements of witnesses where they are unreasonable or inconsistent with each other or with the known facts in the case.\\\"\\nDuring the trial the jury was informed through the examination of Mr. Walker that he had been granted immunity on this felony-murder charge, and would not be tried for this offense. With this knowledge the specific words in the instruction \\\"[y]ou may take into consideration a witness's interest, bias or prejudice, if any, his relationship to the parties involved in the case, any motive that he might have to testify one way or the other\\\" covered the requested instruction. In the case of People v Knoll, 258 Mich 89, 101; 242 NW 222 (1932), it is stated:\\n\\\"Many of the trial judges believe that they may more satisfactorily perform the duty thus imposed on them by giving such instructions in their own language rather than by reading to the jury those submitted to them in the form of requests. And, when the instruction as given fairly covers the material substance embodied in the requests, error may not be predicated upon such refusal. People v Kudla, 223 Mich 137; 193 NW 844 (1923).\\\"\\nWe find that the instruction given by the court in the instant case covered the material substance embodied in the request and, therefore, rule no error resulted.\\nThe defendants also claim error by the trial court in failing to charge the jury on second-degree murder and manslaughter as lesser included offenses. Where there is no evidence present in a case that would show the commission of a lesser offense, it is not error to refuse to so charge. People v Kolodzieski, 237 Mich 654; 212 NW 958 (1927).\\nThe record discloses that Bills and Dancer with Walker planned a felony robbery \\u2014 that Bills had a gun \\u2014 that they made complete plans and carried these plans out. Dancer was the lookout man and carried out his part in the plan. The robbery, or attempted robbery, took place, and the victim was shot and mortally wounded at the time. If the jury believed that Bills and Dancer were the perpetrators of the crime, the offense could be nothing but felony murder as was charged. People v Norman, 14 Mich App 673; 166 NW2d 9 (1968); People v Stevens, 9 Mich App 531; 157 NW2d 495 (1968). Defendants' claim in this regard is untenable.\\nIV\\nDid the trial court improperly preclude the de fense from cross-examining witness Michael G. Walker relative to another charge pending against him in the same court?\\nThe fact that the witness pled guilty to the other charge was brought out by the prosecutor in his direct examination of the witness. The first mention of this matter upon cross-examination appears in the record as follows:\\n\\\"Mr. Burress: Your Honor, may I see the original of the order of immunity?\\n\\\"The Court: I believe the order to which you make reference is in another file of this court. May be Mr. Easton has a copy of it.\\n\\\"Mr. Easton: I can provide a copy of it, your Honor.\\n\\\"The Court: I think the original was considered by myself in conjunction with the witness's plea of guilty that he tended, the plea of guilty that was accepted.\\n\\\"Mr. Easton: Here's a true copy.\\n\\\"Mr. Burress: Will you mark this, please? (A document was marked as defendant's Proposed Exhibit No. 24 for identification by the court reporter.)\\n\\\"Q. (By Mr. Burress, continuing): I am going to ask you to look at that and ask if you can tell me if that's a true copy of the Order of the Immunity which you received in this case?\\n\\\"A. (Mr. Walker): Yes.\\\"\\n(The exhibit was duly admitted.)\\n\\\"Q. (By Mr. Burress, continuing): Now, Mr. Easton asked you some questions about a previous case in which you pleaded guilty, did he not?\\n\\\"A. (Mr. Walker): Yes, he did.\\n\\\"Q. He asked you if you pled guilty to the original charge and went into the maximum number of years involved in that charge, did he not?\\n\\\"Mr. Easton: Now, Mr. Burress knows full well that wasn't my question. I think it is highly improper for him to ask that question.\\n\\\"I hate to be misquoted, I didn't ask that question and he knows better.\\n\\\"I object, I am sure I can't speak for him, I can't say what his purpose is, but I think that's a highly improper question.\\n\\\"The Court: I can't recall Mr. Easton's exact line of inquiry, but there was some earlier reference to the fact that the witness had pleaded guilty to this very court to an offense and he was awaiting sentence.\\n\\\"Now, as to whether or not there was inquiry as to the sentence allowable by law, I frankly do not recall.\\n\\\"Mr. Easton: That wasn't my point, this was a side issue. It was the way I phrased that question.\\n\\\"Mr. Burress: Your Honor, so that there may be no disagreement, I anticipated this witness will be here tomorrow anyway and I will work through the direct examination and would rephrase it tomorrow if I could.\\n\\\"The Court: All right, sir.\\\"\\nOut of the presence of the jury the following took place:\\n\\\"The Court: Mr. Burress, you have a matter that you wish to put on the record?\\n\\\"Mr. Burress: Yesterday, near the close of testimony, I wished to go into an area of a prior conviction of a witness on the witness stand, of Mr. Walker.\\n\\\"There was some discussion about the extent of the testimony and I have checked the transcript, on page 62 and 63. The questions which Mr. Easton asked related to the crime that he plead [sic] guilty to and in addition to that, there was a series of questions asked as to the maximum penalty and to the potential of what he might be sentenced to when he is sentenced.\\n\\\"It is my purpose to ask whether or not the charge to which he plead [sic] guilty was a reduction or was the entire crime with which he was charged. It was my understanding that it was two counts in the indictment and if I have it correct, the first was breaking and entering a business place which would carry a maximum potential sentence of ten years and that the second was a five year penalty. We want to cross-exam ine for the purpose of showing that he was given a substantial break with respect to that charge.\\n\\\"Mr. Easton: In response to that, your Honor, I want to, first of all, indicate what Mr. Burress has said he stands corrected. He said, improperly, that he plead [sic] guilty to the original charge. That's not what he said.\\n\\\"He, Mr. Walker, testified what he plead [sic] guilty to was receiving and concealing stolen property over $100. I think that the defense is foreclosed from going into the original charge. I purposely, to kind of steal their thunder, I brought out the bad point that he pleaded guilty to the crime.\\n\\\"The Court: The court agrees with you, Mr; Easton.\\n\\\"If you're requesting a ruling in limine, you may not inquire into the charges as placed against the witness Walker. You may inquire as to any events as to which he has pleaded guilty as a result of the charge of breaking and entering being the last.\\n\\\"Mr. Easton: Your Honor, are they foreclosed from going into the circumstances? I would think they could not ask where it happened and so on.\\n\\\"The Court: That is a prerogative that rests with the proponent of the witness on redirect. It does not extend to a cross-examining party.\\n\\\"Mr. Burress: In other words, I don't want a mistrial\\u2014\\n\\\"The Court: You cannot go into the circumstances out of which the plea of guilty was taken.\\n\\\"Mr. Burress: In other words, what stolen property was received and concealed?\\n\\\"The Court: That's correct.\\\"\\nThereafter on cross-examination of the witness the following appeared:\\n\\\"Q. (by Mr. Burress): Mr. Walker, I want to ask you just a couple more questions. One of those has to do with your plea of guilty in another charge.\\n\\\"What is the maximum potential sentence on. the charge to which you plead [sic] if you know?\\n\\\"A. Five years, I believe.\\n\\\"Q. All right.\\n\\\"Detective Harshberger did indicate to you that he would come down and attempt to do what he could towards the end that you would receive probation, did he not?\\n\\\"A He indicated to me that he would come down and speak to the judge\\u2014\\n\\\"Q. And when\\u2014\\n\\\"A. \\u2014on my behalf.\\n\\\"Q. When was that?\\n'A. Pardon me?\\n\\\"Q. When was that?\\n'A. That was after the preliminary investigation.\\\"\\nThe fact that a plea of guilty was offered and accepted by the court on an unrelated crime, which was committed by the witness after the offense in the instant case, was the subject of limited cross-examination. The trial court's ruling did not preclude the defense from attacking the witness's credibility by showing what was promised him by the authorities as a result of the plea of guilty to the unrelated crime. In fact, defense did exactly that. In this case we find no abuse of discretion in placing reasonable limitations on the extent to which the defense could go into this collateral matter. People v Duke, 50 Mich App 714; 213 NW2d 769 (1973).\\nV\\nThe defendant Dancer contends that a mandatory sentence of life imprisonment for felony murder is unconstitutional as cruel and unusual punishment.\\nIt is well settled that an aider and abettor may be indicted, tried and on conviction be punished as a principal and no denial of due process results from charging an aider and abettor as a principal. People v Hooper, 50 Mich App 186, 191; 212 NW2d 786, 788 (1973), and the cases cited therein.\\nThe felony-murder rule is constitutional. People v Bufkin, 43 Mich App 585; 204 NW2d 762 (1972); People v Moore, 51 Mich App 48; 214 NW2d 548 (1974). Defendant Dancer's contentions on this issue are untenable.\\nAffirmed.\\nAll concurred.\"}" \ No newline at end of file diff --git a/mich/2147734.json b/mich/2147734.json new file mode 100644 index 0000000000000000000000000000000000000000..9ad0e1715729d3cfb74d6bd92fb0dd9eb894c9c9 --- /dev/null +++ b/mich/2147734.json @@ -0,0 +1 @@ +"{\"id\": \"2147734\", \"name\": \"MESHRIY v. SUN OIL COMPANY\", \"name_abbreviation\": \"Meshriy v. Sun Oil Co.\", \"decision_date\": \"1976-03-09\", \"docket_number\": \"Docket No. 24198\", \"first_page\": \"709\", \"last_page\": \"712\", \"citations\": \"67 Mich. App. 709\", \"volume\": \"67\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T17:55:12.258355+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Danhof, P. J., and V. J. Brennan and M. J. Kelly, JJ.\", \"parties\": \"MESHRIY v SUN OIL COMPANY\", \"head_matter\": \"MESHRIY v SUN OIL COMPANY\\n1. Appeal and Error \\u2014 Briefs\\u2014Abandonment of Issues.\\nAny issues which are neither raised nor briefed on appeal are considered abandoned.\\n2. Constitutional.Law \\u2014 Due Process of Law \\u2014 Trial.\\nDue process of law requires a fair trial and a fair determination of a controversy.\\n3. Trial \\u2014 Trial Judges \\u2014 Prejudice\\u2014Appeal and Error.\\nActual proof of claimed prejudice must be shown when an appellate court is reviewing the activities, whether judicial or nonjudicial, of a trial judge, and when none is forthcoming the appellate court must find that no violation of due process has occurred; where an appellant claims to have been prejudiced by a letter sent to and read by the trial judge but the appellant has failed to show that the trial judge was influenced by anything other than the evidence duly entered on the record, no violation of due process has occurred.\\nReferences for Points in Headnotes\\n[1] 5 Am Jur 2d, Appeal and Error \\u00a7 686.\\n[2] 16 Am Jur 2d, Constitutional Law \\u00a7\\u00a7 548, 549, 572, 582.\\n[3] 4 Am Jur 2d, Appeal and Error \\u00a7\\u00a7 182-185.\\nAppeal from Macomb, Frank E. Jeannette, J.\\nSubmitted January 8, 1976, at Lansing.\\n(Docket No. 24198.)\\nDecided March 9, 1976.\\nLeave to appeal applied for.\\nComplaint by William Meshriy and Mursell Meshriy, his wife, against Sun Oil Corporation seeking reformation of a lease. Plaintiffs\\u2019 motion for a new trial, made after trial but prior to judgment, was granted. The trial court later vacated the order for a new trial, sua sponte, and entered a judgment of no cause of action in favor of the defendant. Plaintiffs appeal.\\nAffirmed.\\nRobert J. Lord, for plaintiffs.\\nRobert E. Childs, for defendant.\\nBefore: Danhof, P. J., and V. J. Brennan and M. J. Kelly, JJ.\", \"word_count\": \"1237\", \"char_count\": \"7339\", \"text\": \"Danhof, P. J.\\nOn April 17, 1968, the plaintiffs brought the present action seeking reformation of a lease that they entered into with the defendant. Subsequent to the trial, but before judgment was entered in this matter, the plaintiffs filed a motion for a new trial on January 29, 1973. The motion was granted by the trial court in an order filed May 14, 1973. However, on November 1, 1973, the trial court vacated the above order sua sponte and entered a judgment of no cause of action as to the plaintiffs. The plaintiffs then made a second motion for a new trial, which was denied by the trial court on April 21, 1975.\\nThe plaintiffs next moved the trial court pursuant to GCR 1963, 812.2(a) to permit the plaintiffs to transmit less than the full transcript of testimony on appeal. In the motion, the plaintiffs stated they would appeal from the order denying their second motion for a new trial. Further, the plaintiffs indicated they would limit the appeal to three questions. Finally, only those transcripts subsequent to the plaintiffs' first motion for a new trial were requested for this appeal. The trial court granted the plaintiffs' motion for the record on appeal.\\nThe plaintiffs have raised three issues on appeal. For obvious reasons, responding to the third issue answers the first two. Any issues not expressly abandoned on appeal by the above actions of the plaintiffs will be considered abandoned in any event because plaintiffs have neither raised nor briefed and supported further issues. Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). See also Opal Lake Association v Michayw\\u00e9 Limited Partnership, 47 Mich App 354, 366; 209 NW2d 478 (1973), and Taylor v Klahm, 40 Mich App 255, 269; 198 NW2d 715 (1972).\\nConcisely stated, the issue raised is whether the trial court was so prejudiced by a witness's letter, which was critical of the court, that the plaintiffs were thereby denied a fair trial in a fair tribunal as required by due process of law.\\nDue process of law requires a fair trial and a fair determination of the controversy. Napuche v Liquor Control Commission, 336 Mich 398; 58 NW2d 118 (1953), Milford v People's Community Hospital Authority, 380 Mich 49; 155 NW2d 835 (1968).\\nAs to the showing required on review, Wayne County Prosecutor v Doerfier, 14 Mich App 428, 441; 165 NW2d 648 (1968) stated:\\n\\\"An appellate court must demand actual proof of claimed prejudice when reviewing the non-judicial activities of a judge, and when none is forthcoming that court must find that no violation of due process has occurred.\\\"\\nIrish v Irish, 59 Mich App 635, 639; 229 NW2d 874 (1975), indicates that actual proof of claimed prejudice must also be shown \\\"where the judicial activities of a judge are involved\\\".\\nA review of those transcripts requested by the plaintiffs for this appeal fails to show any proof of the claimed prejudice on the part of the trial judge as a result of the letter. Quite the contrary, the trial judge consistently maintained that his decision to set aside the order granting the plaintiffs' motion for a new trial and enter a judgment for the defendant was based upon his finding from the testimony that the plaintiffs had failed to carry the burden of proof. As the plaintiffs have failed to show that the trial judge was influenced by anything other than the evidence duly entered on the record, we find no violation of due process has occurred.\\nAffirmed. We do find, however, that the unfortunate delay below was not attributable to either party and we therefore decline to award costs.\\nThe plaintiffs stated that \\\"the only possible transcripts of hearings pertinent, material and necessary for review\\\" were as follows:\\n\\\"the transcripts of hearings subsequent to the plaintiffs' first motion for a new trial upon federal due process grounds filed on January 29, 1973, particularly (a) the hearing on April 16, 1973 when the Court granted the plaintiffs' motion for a new trial and dictated the reasons therefor, (b) the hearing on November 19, 1973 when judgment was entered in the defendant's favor over the plaintiffs' objections, and (c) the hearing on January [20], 1975 when the Court denied plaintiffs' second motion for a new trial on federal due process grounds and dictated the reasons therefor.\\\" Plaintiffs' motion, filed May 8,1975.\\nThe issues raised on appeal are stated by the plaintiffs as follows:\\nI.\\n\\\"Is a state trial court proceeding subject to the reach and force of the Due Process Clause of the 14th Amendment to the United States Constitution?\\nII.\\n\\\"Did the plaintiffs-appellants present and save a substantial federal claim and question for review?\\nIII.\\n\\\"Did the trial judge deprive plaintiffs-appellants of a fair trial in a fair tribunal, as guaranteed by the 14th Amendment, when he first entered an order granting them a new trial upon a due process motion therefor prior to any opinion or judgment on the merits, and then (a) received and entertained without notice a witness' letter of complaint and accusation so disparaging against the judge for granting a new trial as to make him an interested party, (b) then entered an order adjourning trial until the next trial call after expressing ambiguous concern about said letter to counsel in chambers without disclosing contents thereof, and (c) then without notice, trial, motion or any hearing on the merits subsequent to the said order granting a new trial, the accused Judge sua sponte filed an opinion permitting judgment to be entered against plaintiffs-appellants as pleaded by said witness in his said complaining and accusatory extrajudicial letter?\\\"\"}" \ No newline at end of file diff --git a/mich/2152172.json b/mich/2152172.json new file mode 100644 index 0000000000000000000000000000000000000000..350e044a934710b119f052abd59e70feee899908 --- /dev/null +++ b/mich/2152172.json @@ -0,0 +1 @@ +"{\"id\": \"2152172\", \"name\": \"PEOPLE v. LILLIS\", \"name_abbreviation\": \"People v. Lillis\", \"decision_date\": \"1975-08-28\", \"docket_number\": \"Docket No. 22431\", \"first_page\": \"64\", \"last_page\": \"73\", \"citations\": \"64 Mich. App. 64\", \"volume\": \"64\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T02:35:11.965432+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: McGregor, P. J., and D. E. Holbrook and N. J. Kaufman, JJ.\", \"parties\": \"PEOPLE v LILLIS\", \"head_matter\": \"PEOPLE v LILLIS\\n1. Searches and Seizures \\u2014 Automobiles\\u2014Reasonableness\\u2014Police.\\nThe following rules apply with respect to stopping, searching and seizing motor vehicles: (1) reasonableness is the test that is to be applied for both the stop of, and the search of, moving motor vehicles, (2) said reasonableness will be determined from the facts and circumstances of each case, (3) fewer foundation facts are necessary to support a finding of reasonableness when moving vehicles are involved, than if a house or a home were involved, and (4) a stop of a motor vehicle for investigatory purposes may be based upon fewer facts than those necessary to support a finding of reasonableness where both a stop and a search is conducted by the police.\\n2. Searches and Seizures \\u2014 Automobiles\\u2014Police\\u2014Investigatory Stop \\u2014 Available Facts \\u2014 Reasonable Man.\\nThe reasonableness of the action of a police officer in stopping a motor vehicle for investigatory purposes is measured by an objective standard and may be determined by weighing the experience and information of the officer against the degree of intrusion; where the facts available to the officer at the moment of the seizure or the search would warrant a man of reasonable caution in the belief that the action taken was appropriate, his action will be upheld, but he must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the stop.\\n3. Searches and Seizures \\u2014 Constitutional Law \\u2014 Investigatory Stop \\u2014 Suspicion\\u2014Belief.\\nThe basis for detention for an investigatory stop is reasonable suspicion or the possibility under the circumstances that criminal activity may be afoot rather than probable cause to arrest which consists of the officer\\u2019s reasonable belief or the probability under the circumstances that criminal activity is afoot.\\nReferences for Points in Headnotes\\n[1-4] 68 Am Jur 2d, Searches and Seizures \\u00a7\\u00a7 16, 34, 57.\\nValidity, under Federal Constitution, of warrantless search of automobiles \\u2014 Supreme Court cases. 26 L Ed 2d 893.\\n[2-4] 68 Am Jur 2d, Searches and Seizures \\u00a7\\u00a7 40, 43, 45, 99.\\n[4] 68 Am Jur 2d, Searches and Seizures \\u00a7 85.\\n4. Searches and Seizures \\u2014 Investigatory Stop \\u2014 Reasonable Belief \\u2014Protective Search \\u2014 Concealed Weapons.\\nA police officer making a reasonable investigatory stop who has reason to believe that the suspect is armed and dangerous may conduct a protective search for concealed weapons, limited in scope to this protective purpose.\\nAppeal from Kent, Stuart Hoffius, J.\\nSubmitted June 3, 1975, at Grand Rapids.\\n(Docket No. 22431.)\\nDecided August 28, 1975.\\nRobert J. Lillis was convicted of carrying a concealed weapon in a motor vehicle. Defendant appeals.\\nAffirmed.\\nFrank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Harold S. Sawyer, Prosecuting Attorney, Donald A. Johnston, III, Chief Assistant Prosecuting Attorney, and Craig S. Neckers, Assistant Prosecuting Attorney, for the people.\\nWilliam E. Jackson, for defendant on appeal.\\nBefore: McGregor, P. J., and D. E. Holbrook and N. J. Kaufman, JJ.\", \"word_count\": \"2680\", \"char_count\": \"15951\", \"text\": \"N. J. Kaufman, J.\\nOn October 17, 1974, after a bench trial in Kent County Circuit Court, defendant was found guilty of carrying a concealed weapon in a motor vehicle, MCLA 750.227; MSA 28.424. He was subsequently sentenced to a term of from 3 to 5 years and now appeals of right.\\nThe sole issue to be decided on appeal is whether the trial court committed error by denying defense motions to suppress the gun which the police took from defendant and which served as the basis for his conviction. The gun was discovered when police frisked defendant after they had stopped the car in which he was riding. Defendant contends that the evidence should have been suppressed because the police had insufficient cause to stop the car and to frisk defendant. Evidence at a pre-trial suppression hearing and at trial, prior to defendant's motion at the close of testimony, indicated that the Grand Rapids police, in stopping the car, were acting on a belief that an escaped prisoner was in the car.\\nThe events precipitating defendant's arrest began when the Bay County Sheriffs office informed the Kent County Sheriffs office that an individual named Freddie Tompkins had escaped from Jackson Prison and might be in Grand Rapids where he was the leader of a motorcycle club, the Outlaws. The Bay County officials had received this information from an unnamed \\\"reliable informant\\\". A picture, physical description and rap sheet of Tompkins was sent to the Kent County Sheriffs office which, in turn, forwarded the information to the Grand Rapids police.\\nAccording to the information supplied to the Grand Rapids police, Tompkins was described as being 5 feet 7 inches, weighing 150 pounds and as having a small build, fair complexion, brown hair, blue eyes and tatoos on both arms. The Bay County officials indicated that Tompkins might have a beard or moustache.\\nThis description was distributed to Grand Rapids police officers on July 15, 1974. At this time, the Grand Rapids police verified the fact that Tompkins h\\u00e1d, in fact, escaped from Jackson. Two days later, Officer Kropewnicki, while on patrol, spotted a man whom he thought was Tompkins. The suspect was riding in the back seat of a car for which Officer Kropewnicki had been looking. The officer testified that he was looking for this car because, a month earlier, it had been used by the Outlaw Motorcycle Club in a matter which he had investigated. Officer Kropewnicki based his suspicion that the rear-seat passenger was Tompkins on the prior use of the car by the Outlaws and on the fact that the suspect had \\\"medium length brownish hair\\\", a moustache, and a thin build. The officer had seen a picture of the escapee two days earlier.\\nOfficer Kropewnicki, however, felt that his view of the man in the rear seat was not good enough to justify his stopping the car and arresting the suspect. Because of this, he requested help from Officers Price and Crace who had also seen Tompkins' picture and might verify his suspicion. Price and Crace, who were on plain-clothes duty, followed the suspect car to a party store and watched its three occupants enter and leave the store. They were some 150 yards away at this point. Officer Price testified that he could not make a determination from that distance and that he relied on Officer Crace, who was looking at the three men through binoculars. Officer Crace denied that he was using binoculars and testified that he could not distinctly make out any facial features, height, weight, or age. Crace, in determining that the suspect might be Tompkins, relied on the suspect's hair length and moustache, viewed in light of the connection of the car with the Outlaws and of Officer Kropewnicki's suspicion.\\nWhen the car left the party store, a marked police car joined the others^ and on orders from Kropewnicki pulled it over. Officer Price testified that, at this point, three officers approached the car with drawn guns. Each ordered a different occupant out of the car. Officer Price asked defend ant, the passenger in the front seat, to step out of the car. At this point, Officer Price claimed he saw a bulge in defendant's waistband and, believing that defendant might have a gun, frisked that part of his body. The officer stated that he carried his gun in the same place when on plain-clothes duty. Upon discovering a gun, Price conducted a full pat down of defendant, then placed him under arrest. The other officers had discovered that the suspect in the rear seat was not Tompkins and released him and the driver.\\nOur initial determination is whether the police had sufficient cause to stop the car in which defendant was a passenger. In People v Whalen, 390 Mich 672, 682; 213 NW2d 116 (1973), the Supreme Court established rules \\\"with respect to the stopping, searching and seizing of motor vehicles and their contents:\\n\\\"1. Reasonableness is the test that is to be applied for both the stop of, and the search of moving motor vehicles.\\n\\\"2. Said reasonableness will be determined from the facts and circumstances of each case.\\n\\\"3. Fewer foundation facts are necessary to support a finding of reasonableness when moving vehicles are involved, than if a house or a home were involved.\\n\\\"4. A stop of a motor vehicle for investigatory purposes may be based upon fewer facts than those necessary to support a \\u00f1nding of reasonableness where both a stop and a search is conducted by the police. \\\" (Emphasis supplied.)\\nThe Supreme Court did not detail the parameters of \\\"reasonableness\\\" of investigatory stops. By the very nature of the rules, they must be interpreted on a case-by-case basis. In People v Whalen, supra, the Court found reasonable a stop made pursuant to a tip from an eyewitness to a robbery which had occurred shortly before the stop. The witness gave police a description of the robbers and of their car. The police stopped the car in which defendant was riding when it and its passengers fit the description.\\nIn People v Parisi, 393 Mich 31; 222 NW2d 757 (1974), the Court found the stop to have been unreasonable. There, a policeman stopped defendant's car because it was going 25 mph in a 45 mph zone, because he felt the occupants were violating a local curfew, and because of a concern that the occupants were \\\"sleeping or ill\\\". Id. at 35. The Court noted that no minimum speed laws had been broken and that the curfew did not apply to occupants of autos. As such, there was not \\\"suspicious activity\\\" enough to justify the stop. Id. at 37. Further:\\n\\\"The factual foundations for the decisions in Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), and Adams v Williams, 407 US 143; 92 S Ct 1921; 32 L Ed 2d 612 (1972), are not present here.\\\"\\nTerry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), and Adams v Williams, 407 US 143; 92 S Ct 1921; 32 L Ed 2d 612 (1972), which applied the Terry standards to determining the validity of a stop as well as of a frisk, provide some guidance. In Terry, the Court held that the actions of police oificers would be measured by an \\\"objective standard\\\":\\n\\\"would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief that the action taken was appropriate?\\\" (Citations omitted.) 392 US 1 at 21-22.\\nSee also Adams v Williams, supra at 145-146. In justifying a stop, the police must \\\"be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant\\\" the stop. Terry, supra at 21.\\nProbable cause to arrest is not necessary for an investigatory stop. What is necessary is a reasonable belief \\\"that criminal activity may be afoot\\\". Id. at 30. (Emphasis supplied.) As one commentator notes, in relation to statutes which authorize investigatory stops:\\n\\\"Probable cause is the officer's reasonable belief \\u2014 the probability under the circumstances. The basis for detention under the stop and frisk statute is reasonable suspicion \\u2014 the possibility under the circumstances.\\\" (Emphasis in original.) Stern, Stop and Frisk: An Historical Answer to a Modern Problem, 58 J Crim L C P S 532, 536 (1967).\\nSee also LeFave, \\\"Street Encounters\\\" and the Constitution: Terry, Sibron, Peters & Beyond, 67 Mich L Rev 39, 62-84 (1968).\\nCourts generally view the investigatory stop as a device necessary to the detection of crime, both committed and planned. See Tiffany, McIntyre and Rotenburg: Detection of Crime: Stopping & Questioning, Search & Seizure, Encouragement & Entrapment (Little Brown & Co, 1967), pp 9-10. Considerable discretion has been given in the investiga.tory aspect of police work. The Michigan Supreme Court in People v Whalen, 390 Mich 672, 680; 213 NW2d 116 (1973), quoted the oft-cited language of Justice Rehnquist in Adams v Williams (at 145):\\n\\\"The Fourth Amendment does not require a policeman who lacks the precise level of information neces sary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response.\\\"\\nAlthough the majority in Adams did not expressly acknowledge it, Terry also recognizes th\\u00e1t \\\"good police work\\\" is also characterized by the avoidance of intrusions upon personal privacy in violation of the Fourth Amendment.\\nThus, in adjudging police behavior, a court must examine three important factors: (1) nature and source of the information on which the stop is based, (2) the experience of the police officers involved, and (3) the degree of intrusion involved in the stop. Reasonableness may be determined by weighing the experience and information against the degree of intrusion.\\nWe find that the investigatory stop of the car in which defendant was riding was reasonable. We find that the reasonableness of this stop stems from the fact that an individual who might fit the escapee's description was riding in a car known to be used by a gang which he led and whose aid he might seek. The fact that Tompkins had escaped was verified by the police. The officers knew from information provided by a reliable source that Tompkins was a leader of a Grand Rapids motorcycle gang. It would seem reasonable to conclude that an escaped prisoner would seek the safety of an area well known to him and of friends who might conceal him. Officer Kropewnicki had personal knowledge that the car in question had recently been used by Tompkins' motorcycle gang. All three of the investigating officers had seen Tompkins' picture and physical identification within two days of the stop, and all were experi enced in police work. Their inability to obtain a precise view of the suspect is attributable to their fear of approaching close enough to alarm the suspect and to cause the occupants of the car to flee. The temporary stop of this vehicle did not amount to a degree of intrusion great enough to contravene prudent police activity based on a reasonable belief that criminal activity might be occurring.\\nHaving found the investigatory stop to have been reasonable, we must determine whether the subsequent frisk of defendant was also reasonable. We find that it was. The Supreme Court in Adams v Williams, supra, at 146, summarized the Terry standards for a protective frisk after a reasonable stop:\\n\\\"The Court recognized in Terry that the policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect. 'When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,' he may conduct a limited protective search for concealed weapons. 392 U.S., at 24. The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence . So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose. Id., at 30.\\\" (Footnote omitted.)\\nAt the time defendant was ordered out of the car, the arresting officer did not yet know that the suspect was not Tompkins. It was appropriate for the police to get all of the occupants out of the car so that none might help the escapee or, on the other hand, be accidentally injured when the police attempted to subdue him. The arresting officer stated that, when in plain clothes, he carried his service revolver in his waistband. He, therefore, immediately viewed the bulge in defendant's waistband as a threat. From these facts we find this view and the resultant frisk to have been reasonable. As such, the gun was legally seized, and the court's refusal to suppress it was correct.\\nAffirmed.\"}" \ No newline at end of file diff --git a/mich/2153328.json b/mich/2153328.json new file mode 100644 index 0000000000000000000000000000000000000000..5d49ce52825b2c0ae0e55117c6153215374b9d0b --- /dev/null +++ b/mich/2153328.json @@ -0,0 +1 @@ +"{\"id\": \"2153328\", \"name\": \"PEOPLE v. LaPINE\", \"name_abbreviation\": \"People v. LaPine\", \"decision_date\": \"1975-08-25\", \"docket_number\": \"Docket No. 19338\", \"first_page\": \"554\", \"last_page\": \"558\", \"citations\": \"63 Mich. App. 554\", \"volume\": \"63\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T00:12:18.852201+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Bashara, P. J., and J. H. Gillis and M. F. Cavanagh, JJ.\", \"parties\": \"PEOPLE v LaPINE\", \"head_matter\": \"PEOPLE v LaPINE\\nCriminal Law \\u2014 Constitutional Law \\u2014 Indigent Defendants\\u2014 Transcripts \\u2014 Payment Upon Employment \\u2014 Hardship.\\nAn indigent defendant must be provided with transcripts necessary to perfect an appeal without cost to him where he so requests, but a requirement that he reimburse the county for the costs of such transcripts upon obtaining employment after parole does not violate the state or Federal Constitutions; a court may sua sponte order a person to pay costs which have been suspended when the reason for the waiver or suspension no longer exists, provided that payment is not impossible and would not constitute an undue hardship and the rate of reimbursement fairly reflects the defendant\\u2019s ability to pay (GCR 1963, 120.6, 785.13).\\nReference for Points in Headnote\\n21 Am Jur 2d, Criminal Law \\u00a7 233.\\nAppeal from Chippewa, William F. Hood, J.\\nSubmitted June 3, 1975, at Lansing.\\n(Docket No. 19338.)\\nDecided August 25, 1975.\\nJerry LaPine was convicted, on his plea of guilty, of taking indecent liberties. Defendant appealed. Affirmed, 47 Mich App 553 (1973). Defendant\\u2019s motion for resentencing granted by the circuit court. Defendant\\u2019s motion to withdraw his guilty plea denied by the circuit court. Defendant appeals by leave granted an order of the circuit court providing him with transcript of the proceedings involving resentencing and his motion to withdraw his guilty plea on the condition that he repay the costs thereof upon obtaining employment.\\nAffirmed.\\nFrank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Farrell Elliott, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Edward R. Wilson, Director, by Aloysius J. Lynch, Special Assistant Attorney General), for the people.\\nJohn B. Phelps, Assistant State Appellate Defender, for defendant on appeal.\\nBefore: Bashara, P. J., and J. H. Gillis and M. F. Cavanagh, JJ.\", \"word_count\": \"1158\", \"char_count\": \"7091\", \"text\": \"M. F. Cavanagh, J.\\nUpon his guilty plea, the defendant was convicted of the offense of indecent liberties, MCLA 750.336; MSA 28.568, and was sentenced to a term of 30 months to 10 years imprisonment. His conviction was affirmed by this Court in People v LaPine, 47 Mich App 553; 209 NW2d 726 (1973).\\nAfter the affirmance, the defendant filed a motion for resentencing, which was granted. The original trial judge disqualified himself and another judge sentenced the defendant to the identical 30 months to 10 years term of imprisonment. Thereafter, defendant filed a motion to withdraw his guilty plea and a hearing was held. During the hearing on January 17, 1974, the defendant stated that he was due for parole in April of 1974. The trial court denied the motion. A week later, for the purpose of an appeal, the defendant requested copies of the transcripts of the proceedings for resentencing and on his motion to withdraw his guilty plea and a copy of his presentence report. On January 24, 1974, the trial court caused the following order to be entered:\\n\\\"That a transcript of the resentencing proceedings and a transcript of the hearing on the post-conviction motions, which hearing was held on January 17, 1974, be furnished to the defendant, the cost to be paid initially at public expense, but the defendant to reimburse Chippewa County for the cost of such transcripts, reimbursement to be made in installments of not less than $15.00 per month commencing one month from the date the defendant obtains employment following his release on parole.\\\"\\nLeave to appeal to this Court was granted on April 9,1974.\\nThe defendant raises a single issue on appeal: where an indigent defendant requests transcripts necessary to perfect an appeal, does the requirement of reimbursement upon obtaining employment after parole violate state and Federal constitutional provisions?\\nIn many respects, the defendant's arguments before the Court at this time are premature. The defendant was not denied a copy of the transcript at county expense. Nor did he refuse to accept them because of the reimbursement condition. Under this record, he has not been released on parole or been required to commence repayment. Thus his financial condition and his securing of employment remain speculative. Cf. People v Williams, 57 Mich App 439; 225 NW2d 798 (1975).\\nAlthough no actual harm to this defendant has yet occurred, we conclude that the issue is sufficiently ripe for our consideration because the rights of future defendants are involved and because this controversy is not merely hypothetical. See Gaillot v United States Department of Health, Education and Welfare, 464 F2d 598, 599 (CA 5, 1972).\\nGCR 1963, 785.13 provides that facsimile copies of transcripts shall be provided for a convicted indigent defendant \\\"without cost to him\\\". GCR 1963, 120.6, however, provides that where payment of costs have been suspended, the court may sua sponte order the person to pay those costs \\\"when the reason for the waiver or suspension no longer exists\\\".\\nFuller v Oregon, 417 US 40; 94 S Ct 2116; 40 L Ed 2d 642 (1974), recently upheld a state recoupment statute requiring convicted defendants, as a condition of probation, to repay all or a portion of the legal expenses met by the state. See also James v Strange, 407 US 128; 92 S Ct 2027; 32 L Ed 2d 600 (1972). The Michigan Supreme Court in People v Bohm, 393 Mich 129; 223 NW2d 291 (1974), considered the financial situation of a defendant with substantial income but also considerable debts. The Court adopted \\u00a7 6.2 (Partial Eligibility) of the ABA Standards relating to Providing Defense Services and appointed the State Appellate Defender to represent him on appeal. However, the Court stated:\\n\\\"The trial court in its discretion may enter an appropriate order for repayment.\\\" 393 Mich 129, 131.\\nWe believe that the procedure approved by the Court in Bohm for appellate attorney's fees is also applicable for the costs of providing an appealing criminal defendant with a transcript. The defendant has a right to a \\\"free\\\" transcript, People v Cross, 30 Mich App 326; 186 NW2d 398 aff'd 386 Mich 237 (1971); however, \\\"free\\\" in this context means that the defendant need not pay as a condition precedent to claiming and prosecuting an appeal. See Smith v Bennett, 365 US 708; 81 S Ct 895; 6 L Ed 2d 39 (1961).\\nThe trial court's order in this case requires the defendant to reimburse the county in installments of not less than $15 per month commencing one month from the date he obtains employment after his release on parole. In most cases, no doubt, these conditions will be consistent with the defendant's ability to pay. However, we caution the trial court that if payment is impossible or would constitute an undue hardship, these conditions should be modified or withdrawn. See People v Gallagher, 55 Mich App 613, 619-620; 223 NW2d 92 (1974). So long as reimbursement fairly reflects the defendant's ability to pay, we conclude that the trial court, after furnishing transcripts to an appealing defendant, did not abuse its discretion by imposing a requirement of reimbursement to the county after the defendant is paroled and has obtained employment.\\nAffirmed.\"}" \ No newline at end of file diff --git a/mich/2155077.json b/mich/2155077.json new file mode 100644 index 0000000000000000000000000000000000000000..2a898ccd58bcef9dd55fd8475667180470ef5cfc --- /dev/null +++ b/mich/2155077.json @@ -0,0 +1 @@ +"{\"id\": \"2155077\", \"name\": \"SAGINAW VALLEY TROTTING ASSOCIATION, INC. v. MICHIGAN RACING COMMISSIONER\", \"name_abbreviation\": \"Saginaw Valley Trotting Ass'n v. Michigan Racing Commissioner\", \"decision_date\": \"1978-07-06\", \"docket_number\": \"Docket No. 77-4086\", \"first_page\": \"564\", \"last_page\": \"577\", \"citations\": \"84 Mich. App. 564\", \"volume\": \"84\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T00:12:03.153726+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Beasley, P. J., and Allen and H. E. Deming, JJ.\", \"parties\": \"SAGINAW VALLEY TROTTING ASSOCIATION, INC. v MICHIGAN RACING COMMISSIONER\", \"head_matter\": \"SAGINAW VALLEY TROTTING ASSOCIATION, INC. v MICHIGAN RACING COMMISSIONER\\nDocket No. 77-4086.\\nSubmitted May 10, 1978, at Lansing.\\nDecided July 6, 1978.\\nThe Saginaw Valley Trotting Association, Inc. and the Saginaw County Agricultural Society entered into a 10-year renewable lease to conduct harness racing and on August 23, 1977, the trotting association applied to the racing commissioner for a track license. On October 13, 1977, the commissioner denied the application for a track license. The association and the society then filed a complaint, in the Court of Appeals, for mandamus and in addition moved that the racing commissioner be ordered to show cause why mandamus should not be entered against him. On November 18, 1977, the Court of Appeals granted the order to show cause and further ordered that the parties submit briefs on the issue of whether a complaint for mandamus in the Court of Appeals is an appropriate remedy in view of the fact that MCL 431.38; MSA 18.966[8] provides for a circuit court appeal from a refusal to grant a track license and that MCL 600.4401; MSA 27A.4401 now provides for mandamus against a state officer in circuit court, in addition to briefing the merits. Held:\\n1. The denial of a racing license by the racing commissioner should be reviewed by appeal coupled with mandamus in circuit court because circuit courts now have mandamus jurisdiction over state officers under the changes in the Revised Judicature Act, effective January 1, 1977. However, since the issue of the appropriateness of mandamus in the Court of Appeals was raised by the Court of Appeals and since the issue presented is one of first impression and plaintiffs did follow the standard procedure for mandamus as it existed up to this time, plaintiffs will not be denied access to the remedy they invoked on the ground that they brought their action in the wrong court. The decision in this case is limited to complaints for mandamus filed in the Court of Appeals after the date of this opinion and the opinion is limited to complaints for mandamus brought under the racing act.\\nReferences for Points in Headnotes\\n[1] 52 Am Jur 2d, Mandamus \\u00a7\\u00a7 7, 46 et seq.\\n[2-4, 6] 4 Am Jur 2d, Amusements and Exhibitions \\u00a7 30.\\n51 Am Jur 2d, Licenses and Permits \\u00a7\\u00a7 81, 149.\\n52 Am Jur 2d, Mandamus \\u00a7\\u00a7 26, 44.\\n[3] 52 Am Jur 2d, Mandamus \\u00a7 207.\\n[5] 4 Am Jur 2d, Amusements and Exhibitions \\u00a7 30.\\n51 Am Jur 2d, Licenses and Permits \\u00a7\\u00a7 45-47.\\n2. It was appropriate for the commissioner to take into consideration reasons appearing outside the application itself. Also, the availability of sufficient racing stock was a proper consideration; however, before full consideration can be given to this matter by the Court of Appeals, it is necessary for the commissioner to update and detail findings with supporting reasons on the question of the availability of stock.\\nRemanded to the racing commissioner, with the Court of Appeals retaining jurisdiction.\\n1. Mandamus \\u2014 Other Adequate Remedy.\\nMandamus will not issue if another adequate remedy is available.\\n2. Mandamus \\u2014 Circuit Courts \\u2014 State Officers \\u2014 Statutes\\u2014Court of Appeals \\u2014 Denial of Racing License.\\nCircuit courts now have mandamus jurisdiction over state officers; therefore, a party feeling aggrieved by the denial of a racing license by a state officer now has an adequate remedy in circuit court, and the Court of Appeals may decline to issue mandamus even though that Court has concurrent mandamus jurisdiction with circuit courts and even though a plaintiff has a choice of forum (MCL 431.38[4], 600.4401; MSA 18.966[8] [4], 27A.4401).\\n3. Mandamus \\u2014 Licenses\\u2014Denial of License Application \\u2014 Racing Commissioner \\u2014 Court of Appeals \\u2014 Circuit Court \\u2014 Statutes.\\nReview of a denial of a license by the racing commissioner should be by appeal, coupled with mandamus, in the circuit court; however, where the issue of the appropriateness of bringing the mandamus action in the Court of Appeals subsequent to an amendment of the Revised Judicature Act which gave circuit courts concurrent mandamus jurisdiction with the Court of Appeals is one of first impression and was raised by the Court of Appeals after plaintiffs had brought the mandamus action in the Court of Appeals, the plaintiffs should not be denied access to the remedy they invoked on grounds that they brought their action in the wrong court (MCL 600.4401; MSA 27A.4401).\\n4. Licenses \\u2014 Horse Track Licenses \\u2014 Denial of Licenses \\u2014 Standard of Review.\\nThe standard of review, when reviewing the denial of an application for a horse track license, is whether the racing commissioner\\u2019s denial was for good and reasonable cause or whether the rejection was arbitrary, capricious and unreasonable.\\n5. Licenses \\u2014 Horse Track Licenses \\u2014 Racing Commissioner \\u2014 Extrinsic Considerations.\\nThe racing commissioner, in considering an application for a track license, is permitted to give consideration to extrinsic circumstances such as the availability of racing stock and the opportunity for the sport to develop as part of the race track decisional process.\\n6. Licenses \\u2014 Initial Issuance \\u2014 Due Process \\u2014 Hearing\\u2014Administrative Law \\u2014 Judicial Review.\\nDue process ordinarily does not require an opportunity for a hearing where the question is whether a license should issue initially; however, in a mandamus action against the racing commissioner, despite the fact that the court cannot remand for an evidentiary hearing because no hearing is statutorily required, it is inherent in the process of judicial review that the commissioner\\u2019s reasons and conclusions be set forth in a sufficiently full and understandable manner to make review possible and, therefore, remand for more detailed findings should be made.\\nBorrello, Geyer, & Scorsone, for plaintiff.\\nFrank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and George M. Elworth, Assistant Attorney General, for defendant.\\nBefore: Beasley, P. J., and Allen and H. E. Deming, JJ.\\nCircuit judge, sitting on the Court of Appeals by assignment.\", \"word_count\": \"4203\", \"char_count\": \"25276\", \"text\": \"Allen, J.\\nPlaintiffs ask this Court to issue an order of mandamus requiring racing commissioner, Fedele F. Fauri, to issue a license to operate a harness race track at the Saginaw County Fairgrounds.\\nPlaintiff Saginaw County Agricultural Society is a quasi-public body owning the Saginaw County Fairgrounds. Plaintiff Saginaw Valley Trotting Association, Inc., is a nonprofit corporation incorporated in 1977, for the purpose, inter alia, of conducting harness racing with parimutuel betting. On August 11, 1977, plaintiffs entered into a 10-year renewable lease to conduct harness racing and, on August 23, 1977, the trotting association applied to the racing commissioner for a track license pursuant to \\u00a7 8 of the Racing Law, and for race meeting dates from May 22 through July 29, 1978, pursuant to \\u00a7 9 of the Racing Law. On September 15, 1977, the commissioner requested additional information and documentation which was promptly submitted by the trotting association. In a ruling dated October 13, 1977, the commissioner denied the application for a track license. The principal reason for denial was that, even if a track license were granted, racing dates could not be given because competition from existing tracks and the unavailability of racing stock made the grant of new racing dates inconsistent with the commissioner's duty under regulations to provide opportunity for the sport to properly develop. 1964-1965 AACS R 431.67 (Rule 339). Plaintiffs then filed this complaint for mandamus and, in addition, moved that the defendant be ordered to show cause why mandamus should not be entered against him. By order dated November 18, 1977, this Court granted the order to show cause and further ordered that the parties submit briefs on issue I, infra, in addition to the merits.\\nI. Is a complaint for mandamus in the Court of Appeals an appropriate remedy in view of the fact that MCL 431.38; MSA 18.966(8) provides for a circuit court appeal from a refusal to grant a track license and that MCL 600.4401; MSA 27A.4401 now provides for mandamus against a state officer in circuit court?\\nIn his brief submitted in response to this Court's directive to brief the above question, the Attorney General argues that the amendment to the Revised Judicature Act governing mandamus, MCL 600.4401; MSA 27A.4401, now gives a party feeling aggrieved by denial of a license an adequate remedy in the circuit court and, this being so, mandamus in the instant case must be had in the circuit court. In response, plaintiffs argue that the very same amendment contains language explicitly providing that the choice of bringing manda mus in the Court of Appeals or the circuit court is \\\"at the option of the party commencing the action\\\".\\nIn deciding which of the two points of view on this question of first impression should prevail, it is helpful to distinguish between (1) the right to seek mandamus in either the court of appeals or circuit court and (2) the discretionary right of the court in which mandamus is sought, to issue mandamus. It has always been the law that mandamus will not issue if another adequate remedy is available. Constantine v Liquor Control Comm, 374 Mich 259; 132 NW2d 146 (1965), Hazel Park Racing Ass'n, Inc v Racing Comm'r, 336 Mich 508, 518; 58 NW2d 241 (1953). Prior to the amendment, supra, it was the circuit court's inability to order issuance of the denied license which made relief in the circuit court inadequate. Schweitzer v Board of Forensic Polygraph Examiners, 77 Mich App 749, 753; 259 NW2d 362 (1977). Review in the circuit court was in the nature of certiorari, and certiorari permitted only affirmation, reversal or quashing of the proceedings reviewed. The court was without power to make an affirmative order. Constantine v Liquor Control Comm, supra, Kelly Downs, Inc v Racing Comm, 60 Mich App 539, 549; 231 NW2d 443 (1975). Where a state officer was defendant, as is the case here, the circuit court was also restricted by the rule forbidding a circuit court to issue mandamus against a state officer under any guise. Minarik v State Highway Comm'r, 336 Mich 209, 213; 57 NW2d 501 (1953), Lord v Genesee Circuit Judge, 51 Mich App 10, 16; 214 NW2d 321 (1973). But this bar was removed, effective January 1, 1977, by the amendment to \\u00a7 4401 and, today, circuit courts have mandamus jurisdiction over state officers.\\nIn our opinion, a party feeling aggrieved by denial of a racing license now has an adequate remedy in circuit court. Section 4401 as amended allows the circuit court to issue mandamus against state officers. Section 8(4) of the racing act explicitly provides that the racing commissioner's decision in refusing or revoking a track license may be reviewed by the circuit court of the county in which the track is located. MCL 431.38(4); MSA 18.966(8X4). Section 4401 and \\u00a7 8(4) combined, clearly give the party denied a racing license an adequate remedy. The remedy exists because, upon denial of the license, the party may appeal under \\u00a7 8(4) to circuit court which, upon review in the nature of certiorari now under \\u00a7 4401 may issue mandamus. We therefore conclude that in the case before us the Court of Appeals may decline to issue mandamus even though the Court has concurrent mandamus jurisdiction with circuit courts and even though plaintiff has a choice of forum under RJA \\u00a7 4401.\\nOur conclusion admittedly changes the heretofore existing rules governing review of a denial of a racing license. But we believe it is supported on both sound legal and policy grounds. As we noted earlier, it has always been the law that this Court would deny mandamus where an adequate remedy existed elsewhere. The Legislature amended the statute to give circuit courts mandamus jurisdiction over state officers but did not amend the existing rule allowing a court to decline to issue the writ where another adequate remedy is available. On policy grounds, our conclusion is supported by the Supreme Court in People v Flint Municipal Judge, 383 Mich 429, 432; 175 NW2d 750 (1970), where the Court said:\\n\\\"Reasons of policy dictate that such complaints [for superintending control] be directed to the first tribunal within the structure of Michigan's one court of justice having competence to hear and act upon them.\\\"\\nOur decision is also in conformity with the policy announced by the high Court in Superx Drugs Corp v State Board of Pharmacy (On Rehearing), 375 Mich 314, 320; 134 NW2d 678 (1975):\\n\\\"The policy of this Court is to adhere in all but extremely rare instances to the method of review of the decisions of administrative agencies which is provided by specific statutes.\\\"\\nFinally, our holding is consistent with the policy expressed in GCR 1963, 801.2:\\n\\\"Where any administrative action is subject to review concurrently by direct appeal to the Supreme Court or the Court of Appeals (or by any writ or remedy for which appeal is a substitute) and by suit, action or proceedings authorized by law in the circuit court for the same or similar ultimate relief, the circuit court shall have the duty to proceed in any such suit, action or proceeding brought in said court as if the same were the sole method of review, unless otherwise ordered by the Court of Appeals or the Supreme Court.\\\"\\nThough we conclude that review of a denial of a license by the racing commissioner should be by appeal, coupled with mandamus, in the circuit court, we acknowledge that application of the rule to plaintiffs in the present case would be unfair. The issue presented is of first impression and was raised by this Court. Plaintiffs did follow the standard procedure for mandamus as it existed up to this time. Therefore, we limit our decision in this case to complaints for mandamus filed in this Court after the date of this opinion, and will not deny plaintiffs access to the remedy they invoked on grounds that they brought their action in the wrong court. Furthermore, we limit our opinion to complaints for mandamus brought under the racing act. We do not hold that all mandamus actions against state officers must start in circuit court but we leave this issue for future decision on a case by case basis.\\nII. Was the racing commissioner's denial of the application for a race track license arbitrary, capricious and unreasonable?\\nIn reviewing the denial of an application for a horse track license, the standard of review is whether the commissioner's denial was for good and reasonable cause or whether the rejection was arbitrary, capricious and unreasonable. Mount Clemens Harness Ass'n v Racing Comm'r, 360 Mich 467, 474; 104 NW2d 363 (1960), Kelly Downs, Inc v Racing Comm'r, supra, 550. The claim that the commissioner's denial in the case before us was arbitrary, capricious and unreasonable is posited on two grounds: First, that denial of a track li cense may not be based on reasons for denial of a racing date license; Second, that the commissioner grieviously erred in concluding there would be an insufficiency of racing stock. The first ground of error presents a question of law. The second involves a question of fact.\\nWe do not read Kelly Downs, supra, as holding that in denying a track license the commissioner may not take into consideration reasons appearing outside of the application itself. While a brief section of the Court's written opinion in that case suggests such holding, we believe that the opinion, when read as a whole, holds that the commissioner's reason for denial of the application, viz.: that the administration was not prepared to extend pari-mutuel horse racing into new areas of the state \\u2014 was too general and conclusionary only. In contrast, the denial in the instant case was predicated upon specific findings of fact which, although disputed as to their accuracy by plaintiffs, were spelled out in detail in the commissioner's formal ruling.\\nAssuming, arguendo, that the holding in Kelly Downs does preclude the commissioner from taking into consideration the unavailability of race stock or the pending development of harness racing in the Flint-Saginaw region, we disagree with Kelly Downs. So narrow an interpretation of Kelly Downs is impractical, is contrary to \\u00a7 2 of the racing act, MCL 431.32; MSA 18.966(2), and is inconsistent with decisions in other courts. It would be a futile gesture to force the commissioner to grant a track license knowing full well that subsequently a racing date license would be de nied. It would also be unfair to the petitioning party. Plaintiffs' argument is inconsistent with this Court's decision in South Haven Racing Ass'n, Inc v Michigan Racing Comm'r, 42 Mich App 125; 201 NW2d 314 (1972). In that case the commissioner had denied an application for a track license and racing date license on grounds that because of the recent expansion of racing dates and until such time as such expansion could be evaluated \\\" 'it would not be in the best interest of horse racing in Michigan to expand existing facilities and programs' \\\", 42 Mich App at 126. On appeal to our Court, plaintiff argued, as does plaintiff here, that the denial was not based on any deficiency in the application for a track license but was wrongfully based on extrinsic considerations pertaining to the opportunity for the sport of horse racing to properly develop. The argument was rejected:\\n\\\"It would appear that defendant racing commissioner based his decision on sub-rule 339(a), the opportunity for the sport to properly develop. The defendant deemed it in order to observe and study the effect of his allocation of additional racing dates for the year 1971 from the view of the public welfare and the industry generally, before investigation, or an extended consideration of applications for licenses for new tracks and race meeting licenses in the State of Michigan. In that respect, we find that the letter to the plaintiff setting forth the commissioner's reasons for denying the license was only an interlocutory order pending his study of the horse racing program in Michigan for 1971. This, in our opinion, he had a right to do under the 'necessary and proper' power granted to him in the statute and under the regulations which the commissioner has prescribed.\\\" 42 Mich App at 130-131. (Emphasis supplied.)\\nThe \\\"necessary and proper\\\" power to which the Court referred is found in \\u00a7 2 of the racing act, MCL 431.32; MSA 18.966(2). In our opinion, \\u00a7 2 permits the commissioner to give consideration to such matters as the availability of racing stock and the opportunity for the sport to develop as part of the race track decisional process. Finally, we note that the commissioner's power to consider track location in relation to other existing tracks is supported by North Hampton Racing & Breeding Ass'n, Inc v New Hampshire Racing Comm, 94 NH 156, 163; 48 A2d 472 (1946). There, the court held that the racing commissioner properly denied a track license for the reason that the \\\"granting of another permit to conduct horse racing with pari-mutuel wagering in the southeastern section of New Hampshire would not be for the best interests of the State\\\". (Emphasis added.)\\nOn the factual question of whether the commissioner acted arbitrarily in finding that there was a shortage of harness stock, plaintiffs appear to be on stronger grounds. We recognize that in reviewing a finding of fact made by the commissioner, an appellate court will not superimpose its judgment over the judgment of the commissioner but will confine itself to determining whether there was good and reasonable cause to sustain the commissioner's findings. Mount Clemens Harness Ass'n v Racing Comm'r, 360 Mich 467, 474; 104 NW2d 363 (1960). As stated before, the principal reason assigned by the commissioner for denying the track license was the insufficiency of racing stock. Events transpiring subsequent in date to the denial of the license suggest that perhaps the commissioner erred on this key fact. As plaintiff's brief of December 20, 1977, and accompanying chart points out, the present Jackson racing dates overlap the major circuit (Detroit) tracks completely. If there are enough horses to race in Detroit and Jackson at the same time, it seems to follow that there would be enough horses to race in Saginaw and Detroit when Jackson was not running. The problem for this panel is that in the absence of a record we cannot determine whether the commissioner exercised his discretion reasonably. We recognize that the racing commission is not an agency within the protection of the Administrative Procedures Act and, as such, no hearing is required. Kelly Downs v Racing Comm, supra, 546. Where the question is whether a license should issue initially, due process ordinarily does not require an opportunity for a hearing. 2 Am Jur 2d, Administrative Law, \\u00a7 403, p 210; 51 Am Jur 2d, Licenses & Permits, \\u00a7 16, p 22. This being so, we also recognize we may not remand for an evidentiary hearing. But we can require the racing commissioner to be moro explicit in his findings and reasons concerning the unavailability of horses. This is particularly true in relation to new developments occurring since the original decision was made. No matter what a statute may require or not require by way of hearing, it is inherent in the process of judicial review that the agency's reasons and conclusions be set forth in sufficiently full and understandable manner to make review possible. Viculin v Dep't of Civil Service, 386 Mich 375, 405; 192 NW2d 449 (1971).\\nAccordingly, this cause is remanded to the racing commissioner for updated and more detailed findings with supporting reasons on the question of the availability of stock and the current situation in the Saginaw-Flint area. Such findings should respond to the charges of inaccuracy made by plaintiff in this appeal. The commissioner's updated report and finding should be made within 30 days of the date of this opinion. Our action in this regard is compatible with the final ruling of this Court in Kelly Downs, supra. We retain jurisdiction, deferring our decision as to whether mandamus shall issue until we have reviewed the commissioner's report.\\nRemanded in accordance with this opinion. No costs, a public question being involved.\\nThe Racing Law was amended by 1977 PA 63. Sections 8 and 9 are found at MCL 431.38, 431.39; MSA 18.966(8), 18.966(9).\\nThe commissioner ruled in part:\\n\\\"Saginaw Valley's eligibility for a track license is necessarily conditioned upon its eligibility for racing dates once such a track license is issued. It would be an exercise in futility for this office to grant a track license to an organization which would not qualify for racing dates.\\n\\\"The granting of the Genesee Raceway and Saginaw Valley track license applications at this time would raise serious questions as to the ability of one or all of the tracks in that area to conduct successful race meetings because of uncertainties as to the availability of sufficient racing stock, adequate patronage and community support, and the potentially adverse impact on non pari-mutuel horse racing at local and county fairs. The cumulative impact of these uncertainties is such that it mandates a cautious approach to track development by this office.\\\"\\nPrior to amendment, \\u00a7 4401 stated:\\n\\\"All actions for mandamus against state officers shall be commenced in the court of appeals or in the supreme court, as provided by rules of the supreme court.\\\"\\nAfter amendment by 1976 PA 317, \\u00a7 4401 reads:\\n\\\"1) An action for mandamus against a state officer shall be commenced in the court of appeals, or in the circuit court in the county in which venue is proper or in Ingham county, at the option of the party commencing the action.\\\"\\nWe reject the argument that if appeal is taken to the circuit court under \\u00a7 8(4) the scope of review is still limited by certiorari, since certiorari itself does not allow mandamus. The alleged deficiency may easily be overcome if appellant supplements his appeal with a motion for mandamus relief.\\nHowever, it would seem that the rationale of this decision would apply to most mandamus proceedings for review, of state officers' agency decisions where a remedy for review or appeal in circuit court is available under either the specific statute under which the agency proceedings were conducted, Chapter 6 of the Administrative Procedures Act, MCL 24.301 et seq.; MSA 3.560(201) et seq., or \\u00a7 631 of the Revised Judicature Act, MCL 600.631; MSA 27A.631. Where circuit court review or appeal is available under one of those sources and mandamus is sought in the Court of Appeals, this Court could properly decline to entertain the complaint on the grounds that the circuit court remedy, coupled with a complaint, motion or prayer for mandamus relief, is an available adequate remedy.\\nThe commissioner's denial included both a brief letter and a 2-1/2 page formal ruling spelling out in detail the limitations on available stock and the proximity of track licenses in the Flint-Saginaw region. See fn 2.\\n\\\"There is hereby created the office of racing commissioner, who is vested with the powers and duties prescribed in this act and also such powers necessary or proper to enable him to carry out fully and effectively all the purposes of this act.'' (Emphasis supplied.)\"}" \ No newline at end of file diff --git a/mich/2155113.json b/mich/2155113.json new file mode 100644 index 0000000000000000000000000000000000000000..371d0f1ce16153e9e7682398826df70ee3f4b902 --- /dev/null +++ b/mich/2155113.json @@ -0,0 +1 @@ +"{\"id\": \"2155113\", \"name\": \"PEOPLE v. WILLIAMS\", \"name_abbreviation\": \"People v. Williams\", \"decision_date\": \"1978-06-19\", \"docket_number\": \"Docket Nos. 77-1705, 77-2196\", \"first_page\": \"226\", \"last_page\": \"230\", \"citations\": \"84 Mich. App. 226\", \"volume\": \"84\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T00:12:03.153726+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: J. H. Gillis, P. J., and D. E. Holbrook and N. J. Kaufman, JJ.\", \"parties\": \"PEOPLE v WILLIAMS\", \"head_matter\": \"PEOPLE v WILLIAMS\\nDocket Nos. 77-1705, 77-2196.\\nSubmitted May 2, 1978, at Lansing.\\nDecided June 19, 1978.\\nCharles Williams, II, was convicted of armed robbery and assault with intent to commit murder in Oakland Circuit Court, Farrell E. Roberts, J. Defendant appeals, contending that the trial court erred in failing to exercise its discretion on the record in considering defendant\\u2019s motion to suppress his prior criminal record, that the prosecutor\\u2019s closing argument was prejudicial, and that defendant was denied effective assistance of counsel. Held:\\n1. The trial court\\u2019s failure to exercise its discretion on the record was error, but reversal is not mandated because after an in-chambers hearing on the matter defense counsel made no more mention of the motion to suppress and in fact waived the error by deliberately introducing the defendant\\u2019s prior criminal record, and because the evidence of defendant\\u2019s guilt was overwhelming.\\n2. The prosecutor\\u2019s closing argument was within the bounds of legitimate and effective advocacy.\\n3. The assistance of counsel issue is without merit.\\nAffirmed.\\nN. J. Kaufman, J. , concurs except that he would point out that the remarks of the prosecutor in closing argument, while not amounting to reversible error, were improper and should not be condoned.\\nOpinion of the Court\\n1. Criminal Law \\u2014 Evidence\\u2014Prior Convictions \\u2014 Judge\\u2019s Discretion.\\nA trial judge may in the exercise of his discretion exclude reference to a defendant\\u2019s prior conviction record, and it is error to fail to recognize that he has such discretion and, therefore, to fail or to refuse to exercise it.\\nReferences for Points in Headnotes\\n[1, 2] 5 Am Jur 2d, Appeal and Error \\u00a7\\u00a7 603, 604, 802.\\n29 Am Jur 2d, Evidence \\u00a7 320.\\n[2] 5 Am Jur 2d, Appeal and Error \\u00a7 562.\\n[3] 75 Am Jur 2d, Trial \\u00a7\\u00a7 193, 218-220.\\nSupreme Court\\u2019s views as to what courtroom statements made by prosecuting attorney during criminal trial violate due process or constitute denial of %ir trial. 40 L Ed 2d 886.\\n2. Criminal Law \\u2014 Evidence\\u2014Prior Convictions \\u2014 Judge\\u2019s Discretion \\u2014 Reversal.\\nA trial court\\u2019s erroneous failure to exercise its discretion on the record regarding a motion by defendant to exclude his prior conviction record does not mandate reversal where after an in-chambers hearing defense counsel made no further mention of his motion, defendant waived any error by then deliberately introducing his prior criminal record into evidence, and where the evidence of guilt was overwhelming.\\nConcurrence by N. J. Kaufman, J.\\n3. Criminal Law \\u2014 Prosecutor\\u2019s Comments \\u2014 Improper Argument.\\nA prosecutor\\u2019s comment, in closing argument, that a lawyer should argue the facts if the law is against him, the law if the facts are against him and attack the police if both are against him, while it did not amount to reversible error, was improper and should not be condoned.\\nFrank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Thomas S. Richards, Assistant Prosecuting Attorney, for the people.\\nJames L. Feinberg, for defendant on appeal.\\nBefore: J. H. Gillis, P. J., and D. E. Holbrook and N. J. Kaufman, JJ.\", \"word_count\": \"1314\", \"char_count\": \"7899\", \"text\": \"J. H. Gillis, P. J.\\nDefendant was tried and convicted by a jury in Oakland County Circuit Court of armed robbery, contrary to MCL 750.529; MSA 28.797, and assault with intent to commit murder, contrary to MCL 750.83; MSA 28.278. He was subsequently sentenced to concurrent prison terms of 6 to 10 years on the armed robbery charge, and 10 to 20 years on the assault charge.\\nThe charges in the instant matter stem from the robbery of a grocery store in Berkley, Michigan. Defendant, along with three others, was arrested after a two-mile chase and shoot-out on Woodward Avenue in the northern suburbs of Detroit.\\nDefendant now appeals as of right alleging several instances of error.\\nAt the beginning of trial, defense counsel made a motion to suppress defendant's prior criminal record. The trial judge responded, concluding:\\n\\\"I will take that under advisement. I'd like to know a little bit more about what kind of felonious assault occurred. Come to chambers.\\\"\\nNo ruling was ever made upon the record in respect to this motion.\\nDefendant contends that the trial court committed reversible error in failing to exercise its discretion on the record in response to defendant's motion to suppress his prior criminal record.\\n\\\"We are persuaded that a trial judge may in the exercise of discretion exclude reference to a prior conviction record, and that it is error to fail to recognize that he has such discretion and, therefore, to fail or to refuse to exercise it.\\\" People v Jackson, 391 Mich 323, 336; 217 NW2d 22 (1974).\\n\\\"On order of the Court, defendant's conviction is peremptorily reversed and a new trial ordered on the ground that defendant sought to have the court exercise its discretion to exclude prior conviction evidence, and it is apparent that the court failed to recognize that it had such discretion and failed to exercise it. See People v Jackson, 391 Mich 323 (1974). In order to comply with Jackson the trial court must positively indicate and identify its exercise of discretion.\\\" People v Cherry, 393 Mich 261; 224 NW2d 286 (1974).\\nRecent decisions from this Court indicate that the exercise of discretion must be on the record. See People v Gunter, 76 Mich App 483; 257 NW2d 133 (1977), People v Florida, 61 Mich App 653; 233 NW2d 127 (1975).\\nOur review of the record reveals that the trial court did err in failing to exercise its discretion on the record. However, this error does not mandate reversal in this case. .\\nAfter the in-chambers hearing with *the trial judge, defense counsel made no mention of his prior motion to suppress defendant's prior criminal record. Defense counsel referred to defendant's prior criminal record in his opening statement, and later, on direct examination, questioned defendant about a prior conviction. Defendant has waived any error by deliberately introducing into evidence his prior criminal record.\\n\\\"Counsel cannot sit back and harbor error to be used as an appellate parachute in the event of jury failure.\\\" People v Brocato, 17 Mich App 277, 305; 169 NW2d 483 (1969).\\nWe also note that the evidence of guilt is overwhelming in the instant case, and under such circumstances the improper admission of a prior conviction does not constitute reversible error. See People v Killebrew, 61 Mich App 129, 134; 232 NW2d 329 (1975), People v Johnson, 46 Mich App 212, 221; 207 NW2d 914 (1973).\\nDefendant next contends that the prosecutor's closing argument was so prejudicial that it denied him a fair trial. We disagree.\\nThe closing argument made by the prosecutor was well within the bounds of legitimate and effective advocacy. We find no error in respect to this issue.\\nDefendant's final allegation of error fails in light of People v Jelks, 33 Mich App 425, 431; 190 NW2d 291 (1971), and People v Garcia, 398 Mich 250; 247 NW2d 547 (1976).\\nAffirmed.\\nD. E. Holbrook, J., concurred.\"}" \ No newline at end of file diff --git a/mich/2157142.json b/mich/2157142.json new file mode 100644 index 0000000000000000000000000000000000000000..f59a23803922b445161dfdd8e701b80d61afea05 --- /dev/null +++ b/mich/2157142.json @@ -0,0 +1 @@ +"{\"id\": \"2157142\", \"name\": \"PEOPLE v. CAGE\", \"name_abbreviation\": \"People v. Cage\", \"decision_date\": \"1978-05-23\", \"docket_number\": \"Docket No. 30213\", \"first_page\": \"534\", \"last_page\": \"542\", \"citations\": \"83 Mich. App. 534\", \"volume\": \"83\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T18:24:40.204274+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: D. E. Holbrook, P. J., and N. J. Kaufman and J. E. McDonald, JJ.\", \"parties\": \"PEOPLE v CAGE\", \"head_matter\": \"PEOPLE v CAGE\\nDocket No. 30213.\\nSubmitted October 13, 1977, at Detroit.\\nDecided May 23, 1978.\\nGary Cage was convicted of armed robbery, Recorder\\u2019s Court of Detroit, James Del Rio, J. Defendant appeals, contending that the trial court erred in allowing the prosecution to introduce evidence of his prior conviction for attempted use of a stolen credit card to impeach him when he took the witness stand. Defendant also contends that the verdict was against the great weight of the evidence. Held:\\n1. The offense of attempted use of a credit card is a \\u201chigh\\u201d misdemeanor and as such may be used for impeachment purposes.\\n2. A defendant must move the trial court for a new trial in order to preserve for appeal the claim that the verdict was against the great weight of the evidence.\\nAffirmed.\\nN. J. Kaufman, J., dissented and would hold that the defendant\\u2019s conviction should be reversed because of the prosecution\\u2019s use of the defendant\\u2019s prior misdemeanor conviction to impeach the defendant.\\nOpinion of the Court\\n1. Criminal Law\\u2014Evidence\\u2014Impeachment\\u2014Prior Convictions\\u2014 Misdemeanors\\u2014Attempted Use of Stolen Credit Card.\\nImpeachment of a criminal defendant, who takes the witness stand, by means of a prior conviction of attempting to use a stolen credit card, which is a misdemeanor punishable by a prison term of not more than two years, is not improper because the term \\\"misdemeanor\\u201d in the rule which prohibits the use of prior misdemeanor convictions for impeachment purposes is a synonym for violations of municipal ordinances; impeachment should be permissible by use of prior convictions' based on a crime punishable by imprisonment in the state prison, regardless of whether it is dubbed \\\"felony\\u201d or \\\"misdemeanor\\u201d.\\nReferences for Points in Headnotes\\n81 Am Jur 2d, Witnesses \\u00a7\\u00a7 569, 571, 581, 582.\\n5 Am Jur 2d, Appeal and Error \\u00a7 545 et seq.\\n2. Appeal and Error\\u2014Criminal Law\\u2014Weight of Evidence\\u2014New Trial\\u2014Motions.\\nA defendant may not raise on appeal the issue that his conviction was against the great weight of the evidence where he has not filed a motion for a new trial with the trial court.\\nDissent by N. J. Kaufman, J.\\n3. Criminal Law\\u2014Evidence\\u2014Impeachment\\u2014Prior Convictions\\u2014 Misdemeanors\\u2014Attempted Use of Stolen Credit Card.\\nIt is improper to use a criminal defendant\\u2019s prior misdemeanor convictions to impeach the defendant\\u2019s credibility if he chooses to take the witness stand; therefore, it was improper for a trial court to allow the prosecution to impeach a defendant by introducing evidence of the defendant\\u2019s prior conviction for attempted use of a stolen credit card because that offense is a misdemeanor, not a felony.\\nFrank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Craig L. John, Assistant Prosecuting Attorney, for the people.\\nSolomon & Stern, for defendant on appeal.\\nBefore: D. E. Holbrook, P. J., and N. J. Kaufman and J. E. McDonald, JJ.\\nCircuit judge, sitting on the Court of Appeals by assignment\", \"word_count\": \"2151\", \"char_count\": \"12883\", \"text\": \"Per Curiam.\\nDefendant, charged with armed robbery (MCL 750.529; MSA 28.797), was tried and found guilty by a jury. Following sentence, defendant appeals on grounds that the trial court erred in allowing use of prior convictions for impeachment purposes, claiming that one of the prior convictions was for a misdemeanor. Defendant also appeals on the ground that the verdict of the jury was against the great weight of the evidence.\\nThe specific prior conviction in question was that of attempting to use a stolen credit card, punishable by a prison term of not more than 2 years under MCL 750.92; MSA 28.287, as a circuit court, or \\\"high\\\" misdemeanor.\\nIn People v Renno, 392 Mich 45; 219 NW2d 422 (1974), the Supreme Court, in reviewing the question of impeachment by prior convictions, said:\\n\\\"The original legislative purpose behind these statutes is obvious. They were passed to allow persons, historically disqualified at common law from testifying in a case, to testify. A compromise, however, was worked out whereby these disqualified persons could still have their credibility attacked by those prior convictions which formerly had disqualified them from testifying.\\n\\\"Not all crimes at common law disqualified a witness. Only infamous crimes disqualified a witness, and our statutes were originally intended only to allow impeachment by use of that type of criminal conviction.\\n\\\"Our Legislature saw fit to pass these statutes and to confer upon the accused a right he previously did not have at common law, that of testifying on his own behalf. The Legislature also saw fit to limit this right, permitting the defendant's credibility to be attacked in the discretion of the trial court by these prior disqualifying convictions. These statutes were passed to give rights to an accused defendant, not to take rights away from him. Allowing the use of municipal ordinance convictions for impeachment purposes does just that\\u2014it takes away rights the accused formerly had at common law.\\n\\\"We do not hesitate in this case to prohibit the further use of municipal ordinance or misdemeanor convictions used by the prosecution solely for impeachment purposes.\\\" 392 Mich 53, 55.\\nA careful reading of Renno, supra, reveals that the word \\\"felony\\\" is not used or defined in the opinion and that the only time the word \\\"misdemeanor\\\" is used in the entire opinion is in the above quotation. We have no hesitancy in assuming that as used in Renno, supra, \\\"misdemeanor\\\" is meant to be a synonym for violations of municipal ordinances and nothing more.\\nWe find this interpretation to be further buttressed by this language in People v McMillan, 68 Mich App 113, 123; 242 NW2d 518 (1976).\\n\\\"We do not think that, in Michigan, the term 'infamous crime' can necessarily be equated with the term 'felony'. In Attorney General v Montgomery, 275 Mich 504, 513; 267 NW 550 (1936), our Supreme Court defined an infamous crime as follows:\\n\\\" 'Whether a crime is infamous or not is not determined by the nature of the offense (2 Bouvier's Law Dictionary [Rawle's 3d Rev] p 1553, 1554), but by the consequences to the individuals by the punishment prescribed for such offense. Butler v Wentworth, 84 Me 25 (24 ATL 456, 17 L.R.A. 764). Crimes subject to infamous punishments are infamous crimes, and the term \\\"infamous crime\\\" means any crime punishable by imprisonment in the state prison.' (Citations omitted, emphasis supplied.)\\n\\\"It would then appear that under Montgomery, supra, impeachment should be permissible by use of prior convictions based on a crime punishable by imprisonment in the state prison, regardless of whether it is dubbed 'felony' or 'misdemeanor'.\\\"\\nAnd further at 124-125:\\n\\\"The Legislature has broken misdemeanors into two categories, some punishable by imprisonment in the state prison (see e.g. MCLA 750.414; MSA 28.646) and some punishable by a maximum of 90 days in the county jail, MCLA 750.504; MSA 28.772. We think that it would both be more logical and more in spirit with the holding of Montgomery supra, if the rule of Renno was limited to those crimes carrying a maximum of 90 days in the county jail.\\\" (Emphasis in original.)\\nHad the Supreme Court intended to include high misdemeanors or crimes with sentences greater than one year, it certainly could have, but declined to do so, for leave to appeal McMillan was denied. 399 Mich 825 (1977).\\nThe decision by the trial court in the instant case, to permit impeachment by means of the conviction of attempting to use a stolen credit card, was not error. People v Renno, 392 Mich 45; 219 NW2d 422 (1974), People v McMillan, 68 Mich App 113; 242 NW2d 518 (1976), lv den, 399 Mich 825 (1977).\\nDefendant's claim that the verdict was against the great weight of the evidence is not properly before this Court as defendant has not moved for a new trial as is required to preserve the issue for review. People v Mattison, 26 Mich App 453, 459; 182 NW2d 604 (1970), People v Towns, 69 Mich App 475, 476; 245 NW2d 97 (1976).\\nAffirmed.\\nSupporting the above interpretation of Renno, MRE 609 continues the avoidance of the felony-misdemeanor morass. See Robinson, James K., and John W. Reed, A Review of the Proposed Michigan Rules of Evidence, 56 Michigan State Bar Journal 21, 30 (January, 1977).\"}" \ No newline at end of file diff --git a/mich/2183548.json b/mich/2183548.json new file mode 100644 index 0000000000000000000000000000000000000000..f1b0367ca423e16bc41c2ddd5599f38bf2c455d3 --- /dev/null +++ b/mich/2183548.json @@ -0,0 +1 @@ +"{\"id\": \"2183548\", \"name\": \"PEOPLE v. LANGSTON\", \"name_abbreviation\": \"People v. Langston\", \"decision_date\": \"1978-11-06\", \"docket_number\": \"Docket No. 31327\", \"first_page\": \"656\", \"last_page\": \"662\", \"citations\": \"86 Mich. App. 656\", \"volume\": \"86\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T18:54:50.253895+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Danhof, C.J., and V. J. Brennan and R. H. Campbell, JJ.\", \"parties\": \"PEOPLE v LANGSTON\", \"head_matter\": \"PEOPLE v LANGSTON\\nDocket No. 31327.\\nSubmitted June 5, 1978, at Grand Rapids.\\nDecided November 6, 1978.\\nEdwin L. Langston was convicted of first-degree felony murder, Van Bur\\u00e9n Circuit Court, Meyer Warshawsky, J. The killing occurred during the commission of an armed robbery in which the defendant was an accomplice of the person who shot the victim. Defendant appeals, alleging error in the trial court\\u2019s instructions to the jury. Held:\\nIn order to be liable for murder an accomplice to a robbery must have acted with the intent to kill or in reckless disregard of a known and high degree of risk that death or serious bodily harm might occur. In this case the trial court\\u2019s instruction to the jury failed to inform the jury that malice entails a more than foreseeable risk of death and is based on the defendant\\u2019s subjective awareness of the\\\" risks and consequences of his acts. The instruction was not sufficient to support a conviction of first-degree murder.\\nReversed and remanded.\\nV. J. Brennan, J., dissented. He would hold that although the existence of malice is a question for the jury, the element of malice sufficient to elevate a killing to felony murder is established by finding that the killing occurred in the perpetration of one of the felonies enumerated in the first-degree murder statute.\\nReferences for Points in Headnotes\\n[1] 52 Am Jur 2d, Malice \\u00a7\\u00a7 1-7.\\n40 Am Jur 2d, Homicide \\u00a7\\u00a7 41-43, 50, 51, 71-79, 227, 247, 454, 472, 498-500.\\nInference of malice or intent to kill where killing is by blow without weapon. 22 ALR2d 854.\\nPresumption of deliberation or premeditation from the fact of killing. 86 ALR2d 656.\\nPresumption of deliberation or premeditation from the circumstances attending the killing. 96 ALR3d 1435.\\nWhat felonies are inherently or forseeably dangerous to human life for purpose of felony \\u2014 murder doctrine. 50 ALR3d 397.\\n[2-4] 40 Am Jur 2d, Homicide \\u00a7\\u00a7 34-40.\\n[4] What constitutes \\\"imminently dangerous\\u201d act within homicide statute. 67 ALR3d 900.\\nOpinion of the Court\\n1. Homicide \\u2014 Murder\\u2014Malice\\u2014Inference by Jury.\\nMalice, under Michigan common law, is a necessary element of murder which may be inferred by a jury from the commission of an underlying felony but may not be imputed to a defendant by the court.\\n2. Homicide \\u2014 Felony Murder \\u2014 Accomplice Liability \\u2014 Malice.\\nThe reasoning which supports the rule that Michigan does not have a felony-murder doctrine leads to the conclusion that an accomplice to a robbery may not be held liable for a murder committed in the course of that robbery unless he acted with malice.\\n3. Homicide \\u2014 Felony Murder \\u2014 Accomplice Liability.\\nAn accomplice to a robbery, in order to be held liable for a murder committed in the course of that robbery, must have acted with the intent to kill or in reckless disregard of a known and high degree of risk that death or serious bodily harm might occur.\\n4. Homicide \\u2014 Instructions to Jury \\u2014 Murder\\u2014Malice.\\nA trial court\\u2019s instructions to a jury that a murder must have been found to be \\\"fairly within the scope of a criminal enterprise and it might have been expected to happen in the course of committing this robbery with a pistol\\u201d is not sufficient to support a conviction of an accomplice to a robbery of first-degree murder because it fails to inform the jury that malice entails a more than foreseeable risk of death and is based on a defendant\\u2019s subjective awareness of the risks and consequences of his acts.\\nDissent by V. J. Brennan, J.\\n5. Homicide \\u2014 Murder\\u2014Felony Murder \\u2014 Malice\\u2014Statutes.\\nThe existence of malice, in a trial for murder, is a question for the jury; however, the element of malice sufficient to elevate a killing to felony murder is established by finding that the killing occurred in the perpetration of one of the felonies enumerated in the ffrst-degree murder statute (MCL 750.316; MSA 28.548).\\nFrank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Ward S. Hamlin, Jr., Prosecuting Attorney (by Thomas C. Nelson, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.\\nRolf E. Berg, Assistant State Appellate Defender, for defendant on appeal.\\nBefore: Danhof, C.J., and V. J. Brennan and R. H. Campbell, JJ.\\nCircuit judge, sitting on the Court of Appeals by assignment.\", \"word_count\": \"2017\", \"char_count\": \"11978\", \"text\": \"Danhof, C.J.\\nDefendant was convicted after a jury trial of first-degree felony murder under MCL 750.316; MSA 28.548, and sentenced to mandatory life imprisonment. Claiming several errors in the proceedings below, he appeals as of right.\\nDefendant mainly objects to the trial court's instructions on mens rea. By our disposition of this issue, we eliminate the need to discuss other alleged grounds for reversal.\\nAt trial, the prosecution claimed defendant had intentionally aided Ronald Wilson in the armed robbery of a store, and that Ronald Wilson, in committing that robbery, shot and killed Arretta Lou Ingraham. The people proceeded on a felony-murder theory that any killing committed in the course of a robbery is first-degree murder under MCL 750.316; MSA 28.548, and that an accomplice to the underlying felony is liable as a principal for the murder. Citing People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976), defendant argues that MCL 750.316; MSA 28.548 is not a true felony-murder statute as it only applies after murder has been found, and then only to establish the degree of the offense. Under Michigan common law, malice is still an independent, necessary element of murder which may be inferred by the jury from the commission of an underlying felony, but may not be imputed by the court.\\nWe agree with defendant and the panel in People v Fountain, supra, that there is no felony-murder doctrine in Michigan. The statutory and common law foundations for this ruling are well set out in the Fountain opinion. We add here that the ruling also is in line with the basic premise that a criminal state of mind is the essence of crime. See LaFave & Scott, Criminal Law, \\u00a7 65, pp 515-17. In addition, by requiring an independent finding of malice, the rule does not substantially thwart the goal of deterring crime, as the punishment of negligent conduct only has a marginal deterrent effect, nor does it overburden the state in prosecuting criminals, as malice may often be inferred from the nature of the underlying felony and the circumstances surrounding its commission. People v Fountain, .supra.\\nFrom this view of felony murder it follows that an accomplice to robbery cannot be liable for a murder committed in the course of that robbery unless he acted with malice. While a majority of state courts hold an accomplice liable for all the foreseeable consequences of the criminal scheme he advances, LaFave & Scott, supra, we find that accomplice liability predicated on negligence, even when the crime involves a more serious state of mind, is as obnoxious as felony murder to the basic precepts and purposes of our criminal law. Logically, we cannot accept the former doctrine while rejecting the latter. Indeed, as Professors LaFave and Scott point out, the negligence standard for accomplice liability only makes sense in the context of felony murder \\u2014 when a principal can be convicted for homicide without any showing of recklessness or intent, it is no less objectionable to hold the accomplice liable without showing he acted with a guilty mind. We find that it makes little sense to convict either the principal or accomplice under such circumstances.\\nMichigan case law also provides some support for this conclusion. Thus, the Michigan Supreme Court in People v Knapp, 26 Mich 112 (1872), broadly held that an accomplice is liable for any acts fairly within the common enterprise that might have been expected to happen. Later, it narrowed that decision in People v Foley, 59 Mich 553; 26 NW 699 (1886), by holding that an accomplice to an assault cannot be found liable for a robbery that was within the responsibility of all the assailants, but not shown as a matter of fact to be within the defendant's specific intent. The inference is that foreseeability is a necessary but not a sufficient element of accomplice liability for unintended consequences. See also People v Koharski, 177 Mich 194; 142 NW 1097 (1913); People v Belton, 160 Mich 416; 125 NW 386 (1910); People v Cleveland, 107 Mich 367; 65 NW 216 (1895).\\nWe hold, therefore, that to be liable for murder an accomplice to robbery must have acted with the intent to kill or in reckless disregard of a known and high degree of risk that death or serious bodily harm might occur.\\nIn the instant case, the only instruction that indicated a need to find some mens rea beyond the intent to aid and abet robbery was the judge's charge that the murder must have been found to be \\\"fairly within the scope of a criminal enterprise and it might have been expected to happen in the course of committing this robbery with a pistol\\\". That charge does not satisfy the test we have laid out in this opinion as it fails to inform the jury that malice entails a more than foreseeable risk of death and is based on defendant's subjective awareness of the risks and consequences of his acts. LaFave & Scott, supra, \\u00a771, p 554; CJI, 16:2:03 and commentary, pp 16-90-16-99. Although the record contains facts from which an inference of malice might have been drawn (i.e., aiding an armed robbery itself creates a risk of death), the issue must be retried and put before the jury. People v Fountain, supra.\\nReversed and remanded for a new trial.\\nR. H. Campbell, J., concurred.\"}" \ No newline at end of file diff --git a/mich/2190299.json b/mich/2190299.json new file mode 100644 index 0000000000000000000000000000000000000000..b1aaf2e3ca0e6da9e86a1e9dfadef5c98f1400cc --- /dev/null +++ b/mich/2190299.json @@ -0,0 +1 @@ +"{\"id\": \"2190299\", \"name\": \"PEISNER v. THE DETROIT FREE PRESS, INC\", \"name_abbreviation\": \"Peisner v. Detroit Free Press, Inc.\", \"decision_date\": \"1981-03-03\", \"docket_number\": \"Docket No. 78-4776\", \"first_page\": \"59\", \"last_page\": \"72\", \"citations\": \"104 Mich. App. 59\", \"volume\": \"104\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T23:27:40.135481+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: V. J. Brennan, P.J., and Bronson and H. E. Deming, JJ.\", \"parties\": \"PEISNER v THE DETROIT FREE PRESS, INC\", \"head_matter\": \"PEISNER v THE DETROIT FREE PRESS, INC\\nDocket No. 78-4776.\\nSubmitted April 21, 1980, at Detroit.\\nDecided March 3, 1981.\\nLeave to appeal applied for.\\nBalfour Peisner and Nora S. Peisner brought an action against The Detroit Free Press, Inc. and Louis Heldman, a Free Press reporter, arising out of a libelous statement published by the Free Press. Defendants counterclaimed, alleging abuse of process. Plaintiffs moved to dismiss the counterclaim, which motion was denied, Wayne Circuit Court. Plaintiffs appealed the denial by leave granted, and the Court of Appeals reversed the circuit court\\u2019s denial, 68 Mich App 360 (1977). Defendants subsequently moved for summary judgment on the grounds that the matters reported were true and that their publication was privileged, which motion was granted, Wayne Circuit Court. Plaintiffs appealed. The Court of Appeals reversed and remanded the case for trial, 82 Mich App 153 (1978). Following trial, a jury returned a verdict for plaintiffs, awarding actual and \\\"additional\\u201d damages, Wayne Circuit Court, Harold Hood, J. Defendants appeal, alleging that the trial court erred in instructing the jury on the issue of malice, in allowing the jury to consider a letter containing the plaintiffs\\u2019 demand for retraction, in allowing the jury to consider an editorial published by defendant Free Press, in allowing statements made in defendants\\u2019 pleadings to be considered as evidence of malice, and in instructing the jury on the issue of damages, and that the damages awarded were excessive and not supported by the evidence. Held:\\nReferences for Points in Headnotes\\n[1] 50 Am Jur 2d, Libel and Slander \\u00a7\\u00a7 301, 302.\\nLibel and slander: what constitutes actual malice, within federal constitutional rule requiring public officials and public figures to show actual malice. 20 ALR3d 988.\\nLibel and slander: who is a public official or otherwise within the ' federal constitutional rule requiring public official to show actual malice. 19 ALR3d 1361.\\nConstitutional aspects of libel and slander \\u2014 Supreme Court cases. 28 L Ed 2d 885.\\n50 Am Jur 2d, Libel and Slander \\u00a7\\u00a7 452, 455, 457, 458.\\n[3] 5 Am Jur 2d, Appeal and Error \\u00a7\\u00a7 548, 553.\\n[4] 50 Am Jur 2d, Libel and Slander \\u00a7\\u00a7 238-240.\\nRelevancy of matter contained in pleadings as affecting privilege within law of libel. 38 ALR3d 272.\\n[5] 50 Am Jur 2d, Libel and Slander \\u00a7\\u00a7 356, 360, 367, 550, 551.\\nValidity, construction, and application of statute limiting damages\\nrecoverable for defamation. 13 ALR2d 277.\\n[5-7] 50 Am Jur 2d, Libel and Slander \\u00a7 375.\\nLibel and slander: who is protected by statute restricting recovery unless retraction is demanded. 84 ALR3d 1249.\\n[7] 50 Am Jur 2d, Libel and Slander \\u00a7\\u00a7 190, 191.\\n[8, 10] 22 Am Jur 2d, Damages \\u00a7 237.\\n[9] 50 Am Jur 2d, Libel and Slander \\u00a7 358.\\n1. The trial court properly instructed the jury that actual malice would be shown by proof that defendants wrote or published the article in question with knowledge that it was false or with reckless disregard for whether it was false or not.\\n2. The trial court properly allowed the jury to consider plaintiffs\\u2019 retraction demand and defendants\\u2019 editorial as evidence tending to show the existence of malice at the time of the original publication.\\n3. Any error occasioned by the trial court\\u2019s failure to instruct the jury that the editorial was not actionable and in reading plaintiffs\\u2019 theory of the case was not preserved for appeal, no objection having been raised during trial and no manifest injustice having been shown.\\n4. The trial court erred in allowing the plaintiffs\\u2019 counsel to argue regarding statements made in defendants\\u2019 pleadings, but the error was harmless in light of other evidence presented prior to the argument.\\n5. The combined effect of the trial court\\u2019s instructions on actual and exemplary damages resulted in error. Compensation for the types of injury normally associated with exemplary damages was authorized by the instruction on actual damages.\\n6. The award of damages was excessive but does not constitute grounds for reversal.\\nV. J. Brennan, P.J., concurred. He would note that since Michigan does not permit punitive damages the term should be eliminated from legal parlance, especially in jury instructions where its use can lead to confusion and invite appellate review.\\nBronson, J., concurs in the result only.\\nAffirmed as to liability, reversed and remanded as to damages.\\nOpinion op the Court\\n1. Libel and Slander \\u2014 Malice.\\nActual malice in a libel case is shown where the writing or publication is with knowledge that it is false or with a reckless disregard as to whether it is false or not.\\n2. Libel and Slander \\u2014 Malice \\u2014 Privilege to Publish \\u2014 Evidence.\\nMalice in a libel case must exist at the time of the original libelous publication to overcome a qualified privilege to publish, and evidence of writings or publications of a libel which a defendant made subsequent to the original libel is admissible to show the existence of malice at the time of the original publication.\\n3. Appeal \\u2014 Preserving Question.\\nA claim of an error made during trial is preserved for appeal upon a defendant\\u2019s failure to object to the alleged error during trial or to request a curative instruction only where manifest injustice results.\\n4. Libel and Slander \\u2014 Pleadings \\u2014 Privilege.\\nStatements made in pleadings are privileged and cannot form the basis for a libel action.\\n5. Libel and Slander \\u2014 Damages \\u2014 Notice \\u2014 Retraction op Libel \\u2014 Statutes.\\nA plaintiff in an action based on libel or slander may recover only actual damages suffered in respect to his property, business, trade, profession, occupation, or feelings; exemplary and punitive damages may be recovered only where a plaintiff, prior to instituting an action, gives notice to the defendant to publish a retraction and allows a reasonable time therefor (MCL 600.2911[2]; MSA 27A.2911[2]).\\n6. Libel and Slander \\u2014 Good Faith \\u2014 Retraction op Libel \\u2014 Mitigation of Damages \\u2014 Statutes.\\nEvidence of publication of a retraction or correction in a libel action is admissible to show a defendant\\u2019s good faith and in mitigation and reduction of exemplary or punitive damages (MCL 600.2911[2][b]; MSA 27A.2911[2][b]).\\n7. Libel and Slander \\u2014 Retraction op Libel \\u2014 Nature op Retractions \\u2014 Good Faith \\u2014 Mitigation op Damages \\u2014 Statutes.\\nA retraction of a libel shall be published in the same size type, in the same editions, and, as far as practicable, in substantially the same position as the original libel to be considered on the question of the good faith of a defendant and in mitigation and reduction of exemplary or punitive damages (MCL 600.291l[2][b]; MSA 27A.2911[2][b]).\\n8. Damages \\u2014 Exemplary or Punitive Damages.\\nExemplary or punitive damages are recoverable in Michigan as compensation to a plaintiff and not as punishment of a defendant.\\n9. Libel and Slander \\u2014 Damages \\u2014 Damage to Feelings \\u2014 Statutes.\\nActual damages which a plaintiff has suffered in respect to his feelings, such as mental anguish, denial of social pleasures, embarrassment, ridicule, humiliation, mortification, or fear are compensable in defamation cases (MCL 600.2911[2][a]; MSA 27A.2911[2][a]).\\nConcurrence by V. J. Brennan, P.J.\\n10. Damages \\u2014 Punitive Damages \\u2014 Jury Instructions.\\nDamages cannot be recovered in Michigan for the purpose of punishing a defendant; thus, the term \\\"punitive damages\\u201d should not be used, especially in jury instructions, where it can lead to confusion and appellate review.\\nBalfour Peisner, in propria persona and for plaintiff Nora S. Peisner.\\nBrownson Murray, for defendants.\\nBefore: V. J. Brennan, P.J., and Bronson and H. E. Deming, JJ.\\nCircuit judge, sitting on the Court of Appeals by assignment.\", \"word_count\": \"4195\", \"char_count\": \"25724\", \"text\": \"H. E. Deming, J.\\nPlaintiff Balfour Peisner, a Detroit attorney, filed a complaint against defendants Detroit Free Press and Free Press reporter Louis Heldman on December 10, 1973, seeking damages for libel. His wife, Nora S. Peisner, joined in the complaint with a derivative claim. The basis for the action was an article written by Heldman which appeared in the Free Press on November 20, 1973. The article charged plaintiff Balfour Peisner with inadequate representation of an indi gent criminal defendant in appellate proceedings and with unethical conduct. Plaintiffs claimed that the libel was repeated in a December 1, 1973, Free Press editorial.\\nOn January 11, 1974, defendants filed a counterclaim alleging abuse of process by plaintiffs. Plaintiffs filed a motion to dismiss the counterclaim which was denied by the trial court. Plaintiffs prevailed in an interlocutory appeal to this Court and the counterclaim was dismissed. Peisner v Detroit Free Press, Inc, 68 Mich App 360; 242 NW2d 775 (1976), lv den 399 Mich 825 (1977).\\nOn June 14, 1977, defendants filed a motion for summary judgment claiming that the complaint failed to state a cause of action and that there was no genuine issue of fact because the matters reported in the article and editorial were true and their publication was privileged. The trial court granted the motion and plaintiffs appealed to this Court which reversed and remanded the case for trial. In its opinion, the panel stated that defendants had a qualified privilege to publish the article in question which could be overcome by a showing of actual malice and that summary judgment was improper because plaintiffs' pleadings raised an issue of fact as to the existence of malice. Peisner v Detroit Free Press, Inc, 82 Mich App 153; 266 NW2d 693 (1978).\\nThe case finally proceeded to trial, and, on September 15, 1978, the jury returned a verdict against defendants. Plaintiff Balfour Peisner was awarded $52,000 actual damages and $100,000 \\\"additional\\\" damages. His wife was awarded $5,-000 actual damages. Defendants were held jointly and severally liable for the actual damages while only defendant Free Press was held liable for the additional damages. Defendants' post-trial motion for a new trial and/or remittitur was denied. Defendants now appeal as of right.\\nDefendants first argue that the trial court erred in refusing to instruct the jury that, in order to show malice, plaintiffs were required to establish that defendants acted with ill will and intended to injure plaintiff by means of a falsehood. We disagree. The jury was instructed that actual malice would be shown by proof that defendants wrote or published the article in question with knowledge that it was false or with reckless disregard for whether it was false or not. This instruction conforms to the definition of actual malice set forth by the United States Supreme Court in New York Times v Sullivan, 376 US 254; 84 S Ct 710; 11 L Ed 2d 686 (1964). While the type of definition advocated by defendants finds some support in Michigan law, see, e.g., Powers v Vaughan, 312 Mich 297; 20 NW2d 196 (1945), we believe that the disputed instruction was properly rejected because it would have eliminated the \\\"reckless disregard\\\" segment of the New York Times definition. The New York Times standard has been accepted by the Michigan Supreme Court. Arber v Stahlin, 382 Mich 300; 170 NW2d 45 (1969), Wynn v Cole, 91 Mich App 517; 284 NW2d 144 (1979).\\nNext, defendants claim that the trial court erred in allowing the jury to consider a letter in which plaintiffs demanded retraction of the charges and the December 1, 1973, editorial as evidence of malice. The malice must exist at the time of the original libelous publication, and the jury in the present case was so instructed. New York Times, supra. Statements or publications of a libel which a defendant has made subsequent to the one complained of have been held admissible as evidence tending to show the existence of malice at the time of the original publication. Thibault v Sessions, 101 Mich 279; 59 NW 624 (1894), Smith v Hubbell, 142 Mich 637; 106 NW 547 (1906). We find that the retraction demand and editorial were relevant and admissible on the question as to whether the defendants acted with malice in publishing the original article.\\nDefendants also claim that the jury was improperly allowed to consider the editorial as actionable in itself. The trial judge, outside the presence of the jury, interpreted this Court's decision in Peisner, supra, 82 Mich App 153, as holding that the editorial could not itself be the basis of a cause of action. The jury, however, was never specifically instructed that the editorial was not actionable. The trial court's instructions did indicate that the only publication in question was the original article:\\n\\\"Now, I charge you, Members of the jury, that in this case in publishing this article in question on November 20th, 1973, the Defendants enjoyed what we call a qualified privilege, since under the law the press does enjoy a qualified privilege which precludes recovery for a claimed libel which is based upon the reports of matters of public interests, unless the Plaintiff establishes that the Defendants published an untruth [sic] report with knowledge of its falsity or with a reckless disregard of the truth. Now, I hold and I am charging you, Members of the jury, that the article complained of in this case is defamatory.\\\" (Emphasis added.)\\nThe judge read each side's theory of the case to the jury. Included in plaintiffs' theory was the claim that the editorial was libelous and caused injury to plaintiffs. Defendants now claim that the reading of this theory, coupled with the failure of the judge to instruct the jury that the editorial was not actionable, resulted in a damage award based in part on the publication of the editorial. Defendants did not object to the reading of plaintiffs' theory and never requested an instruction that the editorial was not actionable. Under these circumstances, any error was preserved for appeal only if it resulted in manifest injustice. Earle v Colonial Theater Co, 82 Mich App 54; 266 NW2d 466 (1978), lv den 403 Mich 816 (1978). We do not believe manifest injustice occurred in the present case. The editorial did not repeat the specific allegations of professional misconduct contained in the article, although it called for a Bar Association review of plaintiff Balfour Peisner's conduct to determine if an ethical violation occurred. It is unlikely that the jury based its finding of liability on the editorial. Furthermore, the trial court had planned to give an instruction requested by plaintiffs which contained the statement that the editorial was not actionable. However, the proposed instruction was withdrawn following a defense objection to the failure of the instruction to state that the requisite malice had to exist at the time of the original publication.\\nDuring closing argument, plaintiffs' attorney read aloud a portion of defendants' pleadings in which the defense of truth was claimed. Defense counsel's objection was overruled and his request for a jury instruction that the pleadings could not be considered as evidence of malice was denied. In the post-trial motion, defendants argued that the pleadings were privileged and thus inadmissible. Defendants now argue that the pleadings were privileged and that the assertion of truth therein was improperly used as evidence of malice. Cases relied on by defendants include Hartung v Shaw, 130 Mich 177; 89 NW 701 (1902), and Bennett v Attorney General, 65 Mich App 203; 237 NW2d 250 (1975), which held that statements made in pleadings are privileged and cannot form the basis for a libel action. In Sanders v Leeson Air Conditioning Corp, 362 Mich 692; 108 NW2d 761 (1961), the Court held that statements made in pleadings, if relevant to the issues of a case, are absolutely privileged. Based on these cases, we hold that the trial judge erred by allowing plaintiffs' counsel to make the argument based on defendants' claim of truth and by failing to give the requested instruction. However, we find that this error was harmless under GCR 1963, 529.1 due to the evidence of malice which had been presented to the jury before the disputed argument was made. This included the publication of the editorial by defendant Free Press and its refusal to retract anything in the original article, although plaintiffs had demanded retraction in a letter which pointed out specific allegations in the article which plaintiffs claimed were false.\\nDefendants raise two issues concerning the propriety of the damage award. First, they argue that the trial court's instructions improperly authorized the jury to award multiple damages for the same injury to plaintiff Balfour Peisner's \\\"feelings\\\". The instructions were based in part on MCL 600.2911(2); MSA 27A.291K2), which provides:\\n\\\"(a) Except as provided in (b), in actions based on libel or slander the plaintiff is entitled to recover only for the actual damages which he has suffered in respect to his property, business, trade, profession, occupation, or feelings.\\n\\\"(b) Exemplary and punitive damages shall not be recovered in actions for libel unless the plaintiff, before instituting his action, gives notice to the defendant to publish a retraction and allows a reasonable time to do so, and proof of the publication or correction shall be admissible in evidence under a denial on the question of the good faith of the defendant, and in mitigation and reduction of exemplary or punitive damages. The retraction shall be published in the same size type, in the same editions and as far as practicable, in substantially the same position as the original libel.\\\"\\nIn Michigan, exemplary or punitive damages are recoverable as compensation to the plaintiff, not as punishment of the defendant. Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401, 419; 295 NW2d 50 (1980). The Supreme Court stated:\\n\\\"Our review of the precedent indicates that those cases which permit recovery of exemplary damages as an element of damages involve tortious conduct on the part of the defendant. An award of exemplary damages is considered proper if it compensates a plaintiff for the 'humiliation, sense of outrage, and indignity' resulting from injuries 'maliciously, willfully and wantonly' inflicted by the defendant. The theory of these cases is that the reprehensibility of the defendant's conduct both intensifies the injury and justifies the award of exemplary damages as compensation for the harm done the plaintiffs feelings.\\\" Id., 419.\\nPart (b) of the statute quoted above does not alter the common law rules governing exemplary or punitive damages, it merely states when such damages can be awarded in libel actions.\\nThe trial court in the present case gave the following instructions on exemplary or punitive damages:\\n\\\"Now, Members of the jury, the Michigan statute which I have just quoted mentions punitive damages. Now, under our law \\u2014 and I want to correct any possible misimpressions \\u2014 under our law the purpose of these 'punitive damages' is not to punish the Defendant [sic] for their misdeeds. The purpose of these damages, which I prefer to refer to as additional damages rather than punitive damages, is to compensate the plaintiffs for injuries suffered by them because of the Defendants' actions.\\n\\\"I charge you, that although the focus is upon the Plaintiff's injuries, in measuring these additional and exemplary damages, the focus is on the Defendant's actions in determining if these additional damages should be awarded.\\n\\\"It has long been the position of the Courts of Michigan that the sting of libel will be much greater when the Defendants have acted with either knowledge of the falsity of the material, or with a reckless disregard for the truth. Since the injury is greater because [sic] the Defendant's actions, the Plaintiffs are entitled to recover greater damages than the actual damages. And this is what this punitive damages, which I referred to as additional damages means.\\n\\\"If you also decide that the Plaintiff, Mr. Peisner, is entitled to what I have labeled additional damages bacause the publishers of the \\u2014 I'm sorry. Because the publisher knew that the facts were false or because the article was published with a reckless disregard for the truth, then you may award additional damages to the Plaintiff Peisner, and these additional damages are allowed to compensate him because the sting of libel is much greater \\u2014 it's made much greater when the Defendants have acted with knowledge of the falsity.\\n\\\"You may estimate such additional damages in order to fairly compensate the Plaintiff for the purposes of such additional damages. As I said, although they're called punitive, it's not to punish the Defendants.\\\"\\nThese instructions were basically correct; however, the jury was not informed of specific types of damages to consider in awarding the additional damages. The omission is significant in view of the following instructions given on actual damages:\\n\\\"Now, if you decide that the Plaintiff husband is entitled to damages, it is your duty to determine the amount of money which reasonably, fairly and adequately compensates him for each of the elements of damage which you decide has resulted from the publication, by the Defendant. You should include each of the following items of damage which you decide have been sustained by the Plaintiff to the present time, and they include:\\n\\\"The actual damages which the Plaintiff has suffered in respect to his property or business, trade, occupation or feelings, his mental anguish, his denial of social pleasures and enjoyment, his embarrassment, ridicule, humilation, morti\\u00f1cation or fear. You may also include any of those elements of damage which you determine that the Plaintiff is reasonably certain to sustain in the future.\\n\\\"Now, which, if any, of those elements of damage has been proved is for you to decide. But you have to decide that based upon evidence and not upon speculation, not upon guess and not upon conjecture. The amount of money to be awarded for certain of these elements of damage \\u2014 such as: mental anguish, denial of social pleasures, embarrassment, mortification and ridicule and things like that \\u2014 the amount of money awarded for those elements can't be proved in a precise dollar amount. The law leaves both amounts to your sound judgment. But your verdict must be solely to compensate the Plaintiff for his damages and not to punish the Defendants.\\\" (Emphasis added.)\\nThese instructions on actual damages, standing alone, were not improper. The types of injury emphasized in the quoted portion of the instructions are compensable as actual damages in defamation cases, Long v Tribune Printing Co, 107 Mich 207; 65 NW 108 (1895), Pettengill v Booth Newspapers, Inc, 88 Mich App 587; 278 NW2d 682 (1979), and may fall under the term \\\"feelings\\\" in part (a) of the libel-damages statute.\\nThe error we perceive in the instant cases results from the combined effect of the instructions on actual and exemplary damages. Compensation for the types of injury normally part of exemplary damages, including \\\"humiliation, sense of outrage and indignity\\\", was authorized by the instruction on actual damages. If the actual-damages instruction was correctly followed, the exemplary damages awarded were a form of punishment which is not permitted in this state.\\nDefendants also claim that the damages awarded were excessive and not supported by the evidence. The trial judge denied a defense motion for remittitur, although he acknowledged that the judgment was possibly the largest libel judgment in Michigan history. While we are of the opinion that the damage award was excessive, we do not base our reversal on that ground.\\nPlaintiff Balfour Peisner's claim that he is entitled to costs because the defendants failed to file a proper statement of facts is denied.\\nThe jury's finding of liability is affirmed, but the damage award is set aside and the case remanded for a new trial on the issue of damages only.\\nNo costs, neither side having prevailed in full.\\nBronson, J., concurs in the result only.\\nA detailed statement of facts is contained in this opinion.\"}" \ No newline at end of file diff --git a/mich/2226033.json b/mich/2226033.json new file mode 100644 index 0000000000000000000000000000000000000000..63897704e93bc241282817ec6c5393d6bab4d89a --- /dev/null +++ b/mich/2226033.json @@ -0,0 +1 @@ +"{\"id\": \"2226033\", \"name\": \"BEAUMONT v. BROWN\", \"name_abbreviation\": \"Beaumont v. Brown\", \"decision_date\": \"1983-05-04\", \"docket_number\": \"Docket No. 52713\", \"first_page\": \"464\", \"last_page\": \"468\", \"citations\": \"125 Mich. App. 464\", \"volume\": \"125\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T20:03:19.841867+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Danhof, C.J., and Bronson and Wahls, JJ.\", \"parties\": \"BEAUMONT v BROWN\", \"head_matter\": \"BEAUMONT v BROWN\\nDocket No. 52713.\\nSubmitted January 7, 1983, at Detroit. \\u2014\\nDecided May 4, 1983.\\nLeave to appeal applied for.\\nRobert A. Beaumont brought an action for damages for invasion of privacy against Barry C. Brown and Arthur J. Zink, Jr. The allegations were based upon remarks contained in a letter written by defendant Zink, the personnel director of plaintiff\\u2019s employer, in regard to plaintiff\\u2019s employment. Judgment was entered on a jury verdict of no cause of action, Ingham Circuit Court, James R. Giddings, J. Plaintiff appeals. Held:\\n1. A jury question on whether the disclosed facts were private, embarrassing ones precluded a directed verdict. The trial court properly denied plaintiff\\u2019s motion for a directed verdict.\\n2. Plaintiff\\u2019s allegation of error in the jury instructions is not properly before the Court of Appeals, as plaintiff has failed to point out the alleged instruction to which he objects.\\n3. The trial court did not err in allowing testimony regarding the motivations of defendants in making the statements complained of.\\n4. Plaintiff\\u2019s other claims are without merit or are not properly before the Court.\\nAffirmed.\\n1. Privacy \\u2014 Public Disclosure \\u2014 Directed Verdict.\\nA directed verdict in favor of the plaintiff is precluded in an action for invasion of privacy based upon the public disclosure of private facts where a jury question exists as to whether the facts disclosed were private, embarrassing ones.\\n2. Appeal \\u2014 Jury Instructions \\u2014 Presenting Issue.\\nAn issue regarding jury instructions is not properly presented for review where the appellant has not quoted or cited the alleged jury instruction to which he objects; the Court of Appeals will not speculate on which instructions the appellant finds objectionable.\\nReferences for Points in Headnotes\\n62 Am Jur 2d, Privacy \\u00a7 13.\\n75 Am Jur 2d, Trial \\u00a7\\u00a7 463, 467, 521.\\n5 Am Jur 2d, Appeal and Error \\u00a7\\u00a7 623, 891.\\n5 Am Jur 2d, Appeal and Error \\u00a7\\u00a7 692-696.\\n3. Appeal \\u2014 Questions Considered on Appeal.\\nOrdinarily no point will be considered by the Court of Appeals which is not set forth in or necessarily suggested by the parties\\u2019 statement of questions involved as set forth in their briefs (GCR 1963, 813.1).\\nWilliam L. Mackay, for plaintiff.\\nFarhat, Burns, Story & Stafford, P.C. (by Vittorio E. Porco and Richard C. Kraus), for defendants.\\nBefore: Danhof, C.J., and Bronson and Wahls, JJ.\", \"word_count\": \"1160\", \"char_count\": \"7184\", \"text\": \"Per Curiam.\\nPlaintiff appeals as of right from a judgment of no cause of action on his complaint for damages caused by an alleged invasion of privacy. We affirm.\\nPlaintiffs complaint was filed in 1973. Defendants' motions for summary judgment were denied. The denial was appealed to this Court, which reversed in Beaumont v Brown, 65 Mich App 455; 237 NW2d 501 (1975). This Court held that summary judgment should have been granted on the issues of publication (or disclosure) and whether or not the disclosed facts were \\\"private\\\" ones. The Supreme Court reversed, holding that summary judgment on these issues was improper. 401 Mich 80; 257 NW2d 522 (1977). The case was remanded to this Court to consider the remaining issues in defendants' motion for summary judgment. In an unpublished opinion, this Court affirmed the original denial of defendants' motions for failure to raise the specific claims below (Docket No. 77-4976, decided June 13, 1978). This appeal follows a 19-day jury trial which resulted in a verdict of no cause of action. The facts which gave rise to plaintiffs claim are aptly described in the Supreme Court's opinion, supra.\\nWe agree with defendants that most of plaintiffs claims of error result from a misunderstanding of the prior opinions of this Court and the Supreme Court. Plaintiff claims, in essence, that the Supreme Court made findings of fact in its opinion which bound the jury in the subsequent trial. The Supreme Court's discussion, however, was limited to two issues. The Court decided that summary judgment, GCR 1963, 117.2(3), was inappropriate on the question of public disclosure. It also stated, in response to this Court's opinion, that certain facts could be found by a jury to be \\\"private\\\". It did not make any findings of fact and did not rule, as a matter of law, in plaintiffs favor on any element of the claimed tort.\\nWe begin by rejecting plaintiff's claim that his motions for a directed verdict and judgment notwithstanding the verdict should have been granted. At the very least, a jury question on whether the disclosed facts were private, embarrassing ones precluded a verdict from being directed.\\nPlaintiff claims that the trial judge incorrectly held that defendant Brown had a qualified privilege and instructed the jury thereon. Plaintiff has not properly presented this issue for our review, because he has failed to quote, or cite, the alleged instruction to which he objects. Clearly, defendant Brown was entitled to the protection of a privilege qualified to fit the occasion. See 3 Restatement Torts, 2d, \\u00a7 593, 594, 652G, pp 261, 263, 401. We decline, however, to speculate on which instructions plaintiff finds objectionable. Any error in the instructions regarding defendant Brown was al most certainly harmless, since the jury found that defendant Zink was not liable, despite the holding that defendant Zink had no conditional privilege. Plaintiff argues that the denial of his motion for a new trial, based on a charge that the jury's verdict was contrary to the great weight of the evidence, was an abuse of discretion. We find no abuse of discretion; the jury could easily have found for defendants based on the evidence.\\nPlaintiff objects to several statements made by defense counsel in closing argument. Although we find one statement (re subjects taught in law school) improper, plaintiff's objection to it was sustained. We find no error.\\nFinally, plaintiff makes numerous objections to the trial court's rulings on evidentiary matters. We have reviewed the record at length and find little merit in these objections. Defendants' motivations were relevant, because the key issue in the case was whether defendants' actions furthered a legitimate purpose. Plaintiff could not preclude the jury from considering defendants' state of knowledge in assessing his claim. Reasonableness is especially important in assessing a claim of qualified privilege. Although the trial judge ultimately ruled (incorrectly, we think) that defendant Zink had no qualified privilege, the testimony concerning the reasons for defendant Brown's actions was relevant to his claim of qualified privilege. The circumstances surrounding the letter were also relevant to the questions of injury and public disclosure.\\nThe many remaining claims are without merit, concern errors which were clearly harmless or cannot be reviewed for failure to advance them specifically at trial. To the extent that any claims of error made in appellant's brief are not ad dressed here, we accept no blame. The attention of the parties is directed to the last sentence of GCR 1963, 813.1, which states, \\\"[ojrdinarily no point will be considered which is not set forth in or necessarily suggested by the statement of questions involved\\\".\\nAffirmed. Costs to appellees.\"}" \ No newline at end of file diff --git a/mich/224066.json b/mich/224066.json new file mode 100644 index 0000000000000000000000000000000000000000..d14b88830ea8ed5b982c8ee3c000de2219a9d2b0 --- /dev/null +++ b/mich/224066.json @@ -0,0 +1 @@ +"{\"id\": \"224066\", \"name\": \"HOGAN vs. CIRCUIT JUDGE (Wayne)\", \"name_abbreviation\": \"Hogan v. Circuit Judge\", \"decision_date\": \"1895-07-13\", \"docket_number\": \"No. 14844\", \"first_page\": \"828\", \"last_page\": \"828\", \"citations\": \"1 McGrath 828\", \"volume\": \"1\", \"reporter\": \"Mandamus cases decided in the Supreme court of Michigan\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T22:01:37.635719+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HOGAN vs. CIRCUIT JUDGE (Wayne),\", \"head_matter\": \"HOGAN vs. CIRCUIT JUDGE (Wayne),\\nNo. 14844,\\n106 M., 254.\", \"word_count\": \"68\", \"char_count\": \"430\", \"text\": \"To vacate an injunction restraining the prosecution of an action against an insurance company, brought by relator, claiming to be the assignee of a policy of insurance, in Ionia County, and of garnishment proceedings, brought by different creditors of the assignor in Wayne County, the latter proceedings having been the first instituted.\\nDenied July 13, 1895, with costs.\"}" \ No newline at end of file diff --git a/mich/224102.json b/mich/224102.json new file mode 100644 index 0000000000000000000000000000000000000000..1271ab24667543e2b28d3e2865af0726a446b592 --- /dev/null +++ b/mich/224102.json @@ -0,0 +1 @@ +"{\"id\": \"224102\", \"name\": \"CHICAGO & G. T. RY. CO. vs. CIRCUIT JUDGE (Genesee)\", \"name_abbreviation\": \"Chicago & G. T. Ry. Co. v. Circuit Judge\", \"decision_date\": \"1891-12-30\", \"docket_number\": \"No. 12137\", \"first_page\": \"899\", \"last_page\": \"899\", \"citations\": \"1 McGrath 899\", \"volume\": \"1\", \"reporter\": \"Mandamus cases decided in the Supreme court of Michigan\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T22:01:37.635719+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CHICAGO & G. T. RY. CO. vs. CIRCUIT JUDGE (Genesee),\", \"head_matter\": \"CHICAGO & G. T. RY. CO. vs. CIRCUIT JUDGE (Genesee),\\nNo. 12137,\\n89 M., 549.\", \"word_count\": \"28\", \"char_count\": \"155\", \"text\": \"To vacate an order granting a new trial.\\nDenied December 30, 1891, with costs.\"}" \ No newline at end of file diff --git a/mich/225190.json b/mich/225190.json new file mode 100644 index 0000000000000000000000000000000000000000..46bb85869c4b11755d2859ea0529052947d7746f --- /dev/null +++ b/mich/225190.json @@ -0,0 +1 @@ +"{\"id\": \"225190\", \"name\": \"KELLEY vs. BOARD OF STATE AUDITORS\", \"name_abbreviation\": \"Kelley v. Board of State Auditors\", \"decision_date\": \"1895-06-19\", \"docket_number\": \"No. 14966\\u00bd\", \"first_page\": \"984\", \"last_page\": \"984\", \"citations\": \"1 McGrath 984\", \"volume\": \"1\", \"reporter\": \"Mandamus cases decided in the Supreme court of Michigan\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T22:01:37.635719+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"KELLEY vs. BOARD OF STATE AUDITORS,\", \"head_matter\": \"KELLEY vs. BOARD OF STATE AUDITORS,\\nNo. 14966\\u00bd.\", \"word_count\": \"58\", \"char_count\": \"320\", \"text\": \"To compel respondents to audit and allow relator's bill as circuit judge, for expenses incurred in going to and fro in the discharge of the duties of his office, and for hotel bills paid while holding court out of his own county.\\nOrder to show cause denied June 19, 1895.\"}" \ No newline at end of file diff --git a/mich/2253124.json b/mich/2253124.json new file mode 100644 index 0000000000000000000000000000000000000000..9d957250be97ace47ab31ad27f47799e8de6d06c --- /dev/null +++ b/mich/2253124.json @@ -0,0 +1 @@ +"{\"id\": \"2253124\", \"name\": \"PEOPLE v. DOYLE (ON REMAND)\", \"name_abbreviation\": \"People v. Doyle\", \"decision_date\": \"1983-09-27\", \"docket_number\": \"Docket No. 70477\", \"first_page\": \"145\", \"last_page\": \"159\", \"citations\": \"129 Mich. App. 145\", \"volume\": \"129\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T23:31:44.195090+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Beasley, P.J., and R. B. Burns and R. M. Maher, JJ.\", \"parties\": \"PEOPLE v DOYLE (ON REMAND)\", \"head_matter\": \"PEOPLE v DOYLE (ON REMAND)\\nDocket No. 70477.\\nSubmitted April 4, 1983, at Lansing.\\nDecided September 27, 1983.\\nLeave to appeal applied for.\\nPerry Doyle was convicted of first-degree murder by a jury in Cass Circuit Court and was sentenced to life imprisonment, James E. Hoff, J. Defendant appealed and the Court of Appeals, by a two-to-one vote, reversed, finding that, defendant\\u2019s confession was involuntary and should not have been admitted into evidence and that, absent the confession, there was no evidence of premeditation and deliberation, 117 Mich App 731; 324 NW2d 492 (1982). The people sought leave to appeal to the Supreme Court, which, in lieu of granting leave, reversed for the reasons stated in Judge Beasley\\u2019s dissent and remanded to the Court of Appeals for consideration of the defendant\\u2019s remaining issues, 417 Mich 936 (1983). Defendant raised four other issues. On remand, held:\\n1. The admission of evidence of a prior assault by defendant upon the deceased did not constitute an abuse of discretion. Evidence of the prior assault had bearing on the relationship between defendant and the victim and had a bearing on defendant\\u2019s assertion that the murder was committed without intent, premeditation, and deliberation. Furthermore, any prejudice resulting from the admission into evidence of the fact of the previous assault did not outweigh its probative value on the issues.\\nReferences for Points in Headnotes\\n29 Am Jur 2d, Evidence \\u00a7 320.\\n29 Am Jur 2d, Evidence \\u00a7 321.\\n29 Am Jur 2d, Evidence \\u00a7 322.\\n29 Am Jur 2d, Evidence \\u00a7\\u00a7 324, 326.\\n29 Am Jur 2d, Evidence \\u00a7\\u00a7 324, 325.\\n40 Am Jur 2d, Homicide \\u00a7 785.\\n40 Am Jur 2d, Homicide \\u00a7\\u00a7 263, 266.\\nModern status of the rules requiring malice \\\"aforethought,\\u201d \\\"deliberation,\\u201d or \\\"premeditation\\u201d as elements of murder in the first degree. 18 ALR4th 961.\\n40 Am Jur 2d, Homicide \\u00a7 68.\\n40 Am Jur 2d, Homicide \\u00a7\\u00a7 417-419.\\n2. Sufficient evidence was presented at trial to establish the elements of premeditation and deliberation.\\n3. The trial court did not abuse its discretion by admitting photographs of the deceased into evidence.\\n4. Defendant\\u2019s claims that the trial court erred in instructing the jury, over defense counsel\\u2019s objection, in regard to the disposition of a defendant found guilty but mentally ill and that error occurred as a result of the trial court\\u2019s refusal to give the requested \\\"short form\\u201d dispositional instruction concerning a not guilty by reason of insanity verdict are without merit.\\nAffirmed.\\nR. M. Maher, J., concurred in the result only.\\n1. Criminal Law \\u2014 Evidence \\u2014 Similar Acts.\\nThe admission of evidence of other bad acts committed by the defendant Should be carefully considered by the trial court because of the possibility or the likelihood, as the case may be, that its probative value will be outweighed by the potential for the jury to be unfairly prejudiced against the defendant.\\n2. Criminal Law \\u2014 Evidence \\u2014 Similar Acts.\\nEvidence of a criminal defendant\\u2019s similar criminal act may be admitted where: (1) there is substantial evidence that the defendant actually perpetrated the similar act sought to be introduced; (2) some special quality or circumstance of the act tends to prove the defendant\\u2019s identity, or the motive, intent, absence of mistake or accident, scheme, plan, or system in doing the act, or opportunity, preparation, or knowledge; (3) one or more of those factors is material to the determination of the defendant\\u2019s guilt of the charged offense; and (4) the probative value of the evidence substantially outweighs the danger of unfair prejudice (MRE 404[b]).\\n3. Criminal Law \\u2014 Evidence \\u2014 Similar Acts \\u2014 Materiality.\\nThe materiality requirement of evidence of a similar bad act of a defendant offered to show the defendant\\u2019s intent, motive, absence of mistake or accident, or scheme, plan or system in doing an act is satisfied only when intent, or any of the other items on the statutory list, is an important issue in the case either because it is contested by defendant or because it is necessary to establish identity (MCL 768.27; MSA 28.1050).\\n4. Criminal Law \\u2014 Evidence \\u2014 Similar Acts.\\nA proposal that the similarity of other acts shows that the act on trial was not inadvertent, unintentional, accidental, or done without guilty knowledge does not require as great a similarity with the other bad acts as those instances where a common scheme, plan, or design is sought to be proved.\\n5. Criminal Law \\u2014 Evidence \\u2014 Similar Acts \\u2014 Motive \\u2014 Intent.\\nThe motive or intent of a defendant may be shown by prior acts, even where those acts would constitute commission of another crime.\\n6. Homicide \\u2014 Evidence \\u2014 First-Degree Murder.\\nA prosecutor, in order to establish the corpus delicti of first-degree murder, must present evidence of each element of the crime, independent of the defendant\\u2019s extrajudicial confession.\\n7. Homicide \\u2014 Evidence \\u2014 Premeditation \\u2014 Deliberation \\u2014 Inferences.\\nPremeditation and deliberation may be inferred from the surrounding circumstances including prior relationships tending to show motive, a murder weapon acquired and positioned in preparation for homicide, evidence in the record supporting the inference that the killer transported the victim to a secluded location for an illicit or criminal purpose, circumstances surrounding the killing suggesting premeditation and deliberation, and organized conduct subsequent to the killing suggesting the existence of a plan.\\n8. Homicide \\u2014 First-Degree Murder \\u2014 Premeditation \\u2014 Deliberation.\\nA lapse of time sufficient to have permitted the defendant an opportunity to take a \\\"second look\\u201d at his actions must have existed in order for premeditation and deliberation to be found in a first-degree murder prosecution.\\n9. Homicide \\u2014 First-Degree Murder \\u2014 Premeditation \\u2014 Deliberation.\\nFactors to be considered in determining whether an accused had an opportunity to subject his actions to a second look in determining premeditation and deliberation include: (1) any prior relationship between the defendant and the victim indicative of a motive; (2) defendant\\u2019s actions before the murder; (3) the facts and circumstances of the homicide; and (4) the defendant\\u2019s conduct subsequent to the killing.\\n10. Criminal Law \\u2014 Evidence \\u2014 Photographs \\u2014 Homicide.\\nThe admission into evidence of photographs of the corpse of a homicide victim is a matter addressed to the sound discretion of the trial judge.\\n11. Criminal Law \\u2014 Evidence \\u2014 Photographs.\\nPhotographs which are pertinent, relevant, competent, or material on any issue in a case are not rendered inadmissible merely because they show the details of a gruesome or shocking crime.\\nFrank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William T. Grimmer, Prosecuting Attorney, and Mary C. Smith, Assistant Attorney General, for the people.\\nState Appellate Defender (by Herb Jordan), for defendant on appeal.\", \"word_count\": \"4636\", \"char_count\": \"28495\", \"text\": \"On Remand\\nBefore: Beasley, P.J., and R. B. Burns and R. M. Maher, JJ.\\nBeasley, J.\\nIn 117 Mich App 731; 324 NW2d 492 (1982), by a two-to-one vote, this Court reversed a jury verdict of guilty of first-degree murder in the within case. On March 29, 1983, the Supreme Court reversed the judgment of the Court of Appeals for the reasons stated in the dissent and remanded the case for consideration of the defendant's remaining issues. Since our earlier decision was based solely upon a finding that \\\"defendant's confession should not have been admitted into evidence\\\", and since that issue has been decided by the Supreme Court reversing this Court's conclusion, we consider that any issue with respect to admissibility of defendant's confession has been decided.\\nOn appeal, defendant raises four other issues. First, he contends that evidence of a 1975 assault upon the victim was improperly admitted as a similar bad act. Prior to calling the victim's daughter, Lydia Lucas, as a witness in his case in chief, the prosecutor made an offer of proof regarding the prior assault:\\n\\\"Mr. Grimmer: The offer is that the testimony of this witness will be that, of an incident that took place back on November 23 of 1975 in which she will testify to the effect she was returning home from being in Niles with a friend; that she went back to the residence at 111 Harding Street where she resided; when she got into the home and observed, witnessed a man in her home, a male, she observed in the back of that particular individual going into, I believe it was the bathroom, heard her mother's voice; at that time she left the particular residence and reported the incident to the police. There would be subsequent testimony which would connect up who that particular individual, that that particular individual was, in fact, Perry Doyle in the home on November 23, 1975, and at that time an assault had taken place upon Mrs. Kathryn Lucas by a Perry Doyle. The testimony is offered to show in this particular matter part of the motive and intent upon which this particular attack upon Mrs. Lucas was perpetrated.\\\"\\nOver defendant's objection, the trial court ruled that the evidence would be admissible for the limited purpose of demonstrating motive and intent.\\nThe admission of evidence of another bad act committed by the defendant should be carefully considered by the trial court because of the possibility or the likelihood, as the case may be, that its probative worth will be outweighed by the potential for the jury to be unfairly prejudiced against the defendant.\\nIn People v Golochowicz, the Supreme Court enumerated four requirements that must be satisfied before evidence of other bad acts may be introduced:\\n\\\"(1) there must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced; (2) there must be some special quality or circumstance of the bad act tending to prove the defendant's identity or the motive, intent, absence of mistake or accident, scheme, plan or system in doing the act and, in light of the slightly different language of MRE 404(b) we add, opportunity, preparation and knowledge; (3) one or more of these factors must be material to the determination of the defendant's guilt of the charged offense; and (4) the probative value of the evidence sought to be introduced must not be substantially out-, weighed by the danger of unfair prejudice.\\\" (Footnote omitted.)\\nIn People v Cobb, this Court upheld the trial court's admission into evidence of a prior bad act of the defendant because the defense of accident was claimed by defendant and, thus, his intent was a material issue in the case.\\nIn People v Spillman, we discussed the materiality requirement regarding the introduction into evidence of a prior bad act to demonstrate intent:\\n\\\"The materiality requirement, then, is designed to cover those cases where intent \\u2014 or any of the other items on the statutory list \\u2014 is an important issue in the case either because it is contested by defendant, or because it is necessary to establish identity, i.e., 'to show that defendant was the one who intended to do the act'.\\\" (Citations omitted.)\\nThe similarity of other acts to show that the act on trial was not inadvertent, unintentional, accidental, or done without guilty knowledge does not require as great a similarity with the other bad acts as those instances where a common scheme, plan, or design is sought to be proved.\\nAt issue in People v Chism was whether the defendant's motive in a first-degree murder case may be shown by his commission of prior crimes. The Chism Court held that, since motive is a relevant element in a prosecution for murder, it can be proven by prior acts, even though the prior acts constituted the commission of another crime.\\nApplying the foregoing principles to the within matter, we find that the admission of evidence of the prior assault upon the deceased did not constitute an abuse of discretion. Inasmuch as a highly contested issue at trial was whether defendant had the requisite intent to commit first-degree murder, defendant's intent and motive were relevant. Evidence of the prior assault has a bearing on the relationship between defendant and the victim and has a bearing on defendant's assertion that the murder was committed without intent, premeditation, and deliberation.\\nA primary issue at trial, if not the primary issue, was whether defendant was sane at the time of the slaying. Part of the insanity defense was based on defendant's claim that the victim was in the Mafia and was attempting to kill him. Since the prior assault occurred in 1975, at a time when defendant did not consider that the decedent was a threat to him, it was relevant to negate his claim that the murder of Kathryn Lucas was prompted by his alleged fear of her. The fact of the 1975 assault has a tendency to show that defendant's hostility toward the victim preceded any alleged belief he had that she was a member of the Mafia.\\nWe conclude that the evidentiary requirements of MRE 404(b) and People v Golochowicz, supra, were satisfied. There was substantial undenied evidence that the prior assault was committed; in fact, at the time, in 1975, defendant admitted to the Village of Cassopolis Chief of Police that he had committed the 1975 assault. That previous, serious assault tended to show that defendant fatally stabbed Kathryn Lucas with premeditation and deliberation as it had a bearing on his relationship with the victim and indicated a possible motive and intent in committing the homicide. Unquestionably, defendant's intent was material to a determination of his guilt of the charged offense of first-degree murder. Furthermore, we do not find that any prejudice resulting from the admission into evidence of the fact of the previous assault outweighed its probative value on the issues.\\nSecond, defendant argues that the prosecutor failed to present sufficient evidence at trial, apart from his confession, to establish the necessary elements of premeditation and deliberation, thereby requiring reversal of his conviction of first-degree murder.\\nIn People v Allen, the Supreme Court adopted the dissenting opinion of this Court, which held that the prosecutor, in order to establish the corpus delicti of first-degree murder, must present evidence of each element of the crime, independent of the defendant's extrajudicial confession.\\nIn People v Germain, we discussed the necessary elements of premeditation and deliberation:\\n\\\"However, the components of premeditation and deliberation need not be established by direct evidence, but may be inferred from the surrounding circumstances provided such inference originates from an adequate basis in record evidence. Such factors from which those elements may be inferred include prior relationship tending to show motive, a murder weapon acquired and positioned in preparation for homicide, evidence in the record supporting the inference that the killer transported the victim to a secluded location for an illicit or criminal purpose, circumstances surrounding the killing suggesting premeditation and deliberation, and organized conduct subsequent to the killing suggesting the existence of a plan.\\\" (Citations omitted.)\\nIn the within matter, the decedent sustained 11 stab wounds to her left hand and 6 to the right hand. The medical examiner testified that these wounds were typical \\\"defense wounds\\\", which he defined as injuries suffered in an attempt to thwart an assailant. The medical examiner further testified that the decedent bled to death from multiple \\\"slash type wounds\\\". When the body was discovered, there were signs of a struggle and the house was locked from the inside. In a letter written to the medical examiner, which was introduced by defense counsel, defendant stated that the slaying was committed without guilt or anger. Additionally, the prior assault committed by defendant upon the victim in 1975, which may have been prompted by the daughter of the victim's rejection of defendant's attempts at friendship, indicates a possible motive.\\nTo establish premeditation and deliberation, a court must find a lapse of time sufficient to have permitted the defendant an opportunity to take a \\\"second look\\\" at his contemplated actions. In People v Meadows, we described four factors indicating a sufficient opportunity for the defendant to take a \\\"second look\\\": (1) any prior relationship between the defendant and the victim indicative of a motive; (2) defendant's actions before the murder; (3) the facts and circumstances of the homicide; and (4) the defendant's conduct subsequent to the killing.\\nOur careful review of the record reveals that sufficient evidence was produced apart from defendant's statements to establish the necessary elements of first-degree murder. As the medical testimony indicated, defendant inflicted myriad stab wounds against a victim trying to defendant herself, which suggests that he had an opportunity to consider his actions and to have a \\\"second look\\\". The removal of the telephone receiver from the hook and the locking of the door of the house when leaving suggest a careful scheme or plan. Defendant's prior relationship with the victim and his unsuccessful attempts at friendship with the victim's daughter, when considered in light of the prior assault upon the victim, are suggestive of a motive to take the victim's life.\\nConsequently, we hold that the evidence presented at trial, when considered separately from defendant's confession, supported the inference that defendant murdered Kathryn Lucas with premeditation and deliberation. This is not a case where the sole evidence touching on the homicide is the brutality of the murder; rather, defendant's conduct before, during, and after the crime was sufficient to establish the necessary elements of premeditation and deliberation.\\nThird, defendant asserts that the trial court abused its discretion by admitting five photographs of the deceased into evidence. A careful review of the record discloses that defense counsel timely objected to the introduction of two photographs showing the dead body at the scene of the crime, two autopsy photographs of the victim's hands, and a photograph of the victim's head which revealed bloodstained sheets. In overruling the objections, the trial court stated:\\n\\\"The Court: Well, in viewing the photographs, while it is true a body is shown in both photographs, there are other things that are not shown in both photographs, and quite a few other things. I rule the exhibits are not cumulative.\\n'The Court: Okay. One, while the photographs are not pleasant, I do not judge them inflammatory. Two, the relevancy is obvious. The people have the burden of proving, first of all, a corpus delicti, body of the crime, a homicide, and the relevancy of these go to the point of a homicide and also to whether the wounds were self-inflicted.\\\"\\nIn People v Fuzi #2, this Court summarized the law applicable to this evidentiary issue:\\n\\\"The admission into evidence of photographs of the corpse of a homicide victim is a matter addressed to the sound discretion of the trial judge. Photographs which are pertinent, relevant, competent or material on any issue in the case are not rendered inadmissible merely because they show the details of a gruesome or shocking crime.\\\" (Citation omitted.)\\nThrough the testimony of the medical examiner, the prosecutor established that the photographs were fair and accurate representations of the murder scene and the victim's body. Thus, a proper foundation for the admission of the photographs into evidence was laid.\\nThe photographs served to buttress the testimony of the medical examiner relating to the extent and nature of the stab wounds. They also illustrate the corpus delicti. In particular, the photographic evidence reveals that multiple stab wounds were inflicted, including the many defense wounds to the hands sustained by the victim in an attempt to repel her assailant. Inasmuch as defendant contested that the murder was committed with premeditation and deliberation, as evidenced by his motion for directed verdict at the close of the prosecutor's proofs, the photographs were relevant in that they tend to show that defendant committed a methodical, merciless, and violent murder, for which he had an opportunity, during the repeated stabbings, to take a 'second look\\\".\\nLike the trial court, we do not find that the photographs were so inflammatory that they prejudiced the jurors from the proper exercise of their fact-finding task. In light of our conclusion that the evidence was relevant, we decline to hold that the trial court abused its discretion in overruling defendant's objections.\\nSimilar to the within matter is People v Wallach, where the defendant was convicted of two counts of first-degree murder. One of the issues on appeal concerned the trial court's admission of photographs depicting the two victims buried in the snow and an examination of the corpses at the morgue. Apparently, on the basis that the defendant did not deny that the victims were violently killed, the Wallach Court held that the photographs were improperly admitted. However, the error was held not to require reversal of the defendant's convictions.\\nTherefore, like in Wallach, had we found that the evidence should not have been admitted, we would not have been inclined to reverse. The evidence against defendant was overwhelming. Defense counsel conceded that defendant was the assailant, but interposed an insanity defense, and defendant's confession to the crime was introduced. The admission of the photographs, assuming arguendo that it was error to admit them, was not an error that prejudiced the jury to the extent that defendant was deprived of a fair trial.\\nWe note that this was not a murder prosecution where the identity of the assailant was in dispute. In his opening statement, defense counsel outlined the two main issues: was defendant insane at the time of the homicide and, if not, did he have the requisite state of mind necessary for conviction of first-degree murder. Based on defense counsel's framing of the issues, defendant's state of mind was the primary issue. Accordingly, any evidence shining light thereon, if not more prejudicial than probative, should be admissible for the jury to decide the case. Murder is a heinous and distasteful crime which we believe requires the jurors, as the conscience of the community, to weigh all relevant evidence, including photographs of the victim. It is of interest that the photographs, if anything, may have been beneficial to the insanity defense, as the jurors might have reasoned that a \\\"sane man\\\" would not perpetrate the type of fatal stabbing that occurred here.\\nLast, defendant claims that the trial court erred when it instructed the jury, over defense counsel's objection, in regard to the disposition of a defendant found guilty but mentally ill. Defendant also argues that error occurred as a result of the trial court's refusal to give the requested \\\"short form\\\" dispositional instruction concerning a not guilty by reason of insanity verdict.\\nThe record reveals that the trial court charged the jury on the \\\"long form\\\" not guilty by reason of insanity instruction, as found at proposed CJI 7:8:08 and the instruction relating to the disposition of a defendant found guilty but mentally ill, in conformity with proposed CJI 7:8:10. Based on this Court's holdings and analyses in People v Thomas and People v Tenbrink, we conclude that defendant's claim is clearly without merit.\\nAffirmed.\\nR. B. Burns, J., concurred.\\nR. M. Maher, J., concurred in the result only,\\nThat panel consisted of Judge R. B. Burns and visiting Judge M. B. Breighner voting to reverse, and the author in dissent voting to affirm. The Supreme Court reversed this Court's judgment at 417 Mich 936 (1983).\\nPeople v Oliphant, 399 Mich 472, 490; 250 NW2d 443 (1976).\\n413 Mich 298, 309; 319 NW2d 518 (1982). See, also, Note, Other Crimes Evidence at Trial: Of Balancing and Other Matters, 70 Yale L J 763, 767-769 (1961).\\n82 Mich App 167, 170; 266 NW2d 451 (1978).\\n63 Mich App 256, 261; 234 NW2d 475 (1975), rev'd on other grounds 399 Mich 313; 249 NW2d 73 (1976). For a comprehensive analysis of the materiality issue, see Lilly, An Introduction to the Law of Evidence, \\u00a7 45, pp 129-138.\\nMcCormick, Evidence (2d ed), \\u00a7 190, p 450, fn 42.\\n390 Mich 104; 211 NW2d 193 (1973).\\n390 Mich 118-119. Additional cases supporting this proposition are found at McCormick, Evidence (2d ed), \\u00a7 190, p 450, fn 44.\\n390 Mich 383, 385-386; 212 NW2d 21 (1973).\\n39 Mich App 483, 494-506; 197 NW2d 874 (1972).\\n91 Mich App 154, 165; 284 NW2d 260 (1979).\\nPeople v Vail, 393 Mich 460, 468-469; 227 NW2d 535 (1975); People v Hoffmeister, 394 Mich 155, 159; 229 NW2d 305 (1975), reh den 394 Mich 944 (1975).\\n80 Mich App 680, 691; 263 NW2d 903 (1977).\\n116 Mich App 277, 281; 323 NW2d 358 (1982).\\nMcCormick, Evidence (2d ed), \\u00a7214, pp 530-531; Lilly,. An Introduction to the Law of Evidence, \\u00a7 110, pp 423-424; Anno: Authentication or verification of photograph as basis for introduction in evidence, 9 ALR2d 899; People v Cyr, 113 Mich App 213, 225; 317 NW2d 857 (1982), lv den 414 Mich 888 (1982).\\n110 Mich App 37, 63-67; 312 NW2d 387 (1981).\\nThe statute providing for the \\\"guilty but mentally ill\\\" verdict is found at MCL 768.36; MSA 28.1059. In People v McLeod, 407 Mich 632; 288 NW2d 909 (1980), the Supreme Court upheld the constitutionality of the statute.\\nProposed CJI 7:8:07. This proposed criminal jury instruction provides:\\n\\\"If you find the defendant committed the act but was not criminally responsible at the time, then he is not guilty by reason of insanity. If you make such a decision, the defendant will be immediately committed to the custody of the Center for Forensic Psychiatry for evaluation of his present mental condition and such further medical and legal proceedings as are then deemed necessary;\\\"\\nProposed CJI 7:8:08 provides:\\n\\\"(1) If you find the defendant committed the act but was not criminally responsible at the time, then he is not guilty by reason of insanity. If you make such a decision, the defendant will be immediately committed to the custody of the Center for Forensic Psychiatry for a period not to exceed sixty days.\\n\\\"(2) During that time, the statute directs that the center thoroughly examine and evaluate the present mental condition of the defendant in order to reach an opinion as to whether he is mentally ill and requires medical treatment.\\n\\\"(3) Within the sixty-day period, the center will file a report with the court, prosecuting attorney and defense counsel. If the report states that the person is not mentally ill or does not require treatment, the defendant shall be discharged [from custody],\\n\\\"(4) If the report finds that the person is mentally ill and does require treatment, the Court may [will] direct the prosecuting attorney to file a petition with the Probate Court for an order of hospitalization or an order of admission to a clinical facility. If the Court so directs, the center may retain the person pending such hearing.\\n\\\"(5) If, after a hearing before the Probate Court, the defendant is found not to be mentally ill or not to be a person requiring treatment, the defendant shall be discharged [from custody].\\n\\\"(6) However, if the person is ordered hospitalized, admitted to a facility or otherwise to receive treatment, he shall not be discharged or placed on leave without prior consultation with the Center for Forensic Psychiatry. Once hospitalized, the defendant will he hospitalized until his mental condition is such that he no longer is judged to require treatment.\\\" (Footnote omitted.)\\nProposed CJI 7:8:10 provides:\\n\\\"(14) If you find the defendant committed the crime while responsible but mentally ill, then you may return a verdict of guilty but mentally ill. This verdict may be of the crime charged [or any lesser included offense].\\n\\\"(15) In most respects a verdict of guilty but mentally ill is the same as a verdict of guilty. The defendant may be imprisoned for the same period of time as he would if he were found guilty. [Alternatively, he could be placed on probation for a period of time the same as or greater than he would be if found guilty.] The distinction is that the verdict of guilty but mentally ill imposes upon the Department of Corrections an obligation to provide appropriate psychiatric treatment during the period of imprisonment or while the defendant is on probation.\\\"\\n96 Mich App 210, 221; 292 NW2d 523 (1980).\\n93 Mich App 326, 330-331; 287 NW2d 223 (1979).\"}" \ No newline at end of file diff --git a/mich/225358.json b/mich/225358.json new file mode 100644 index 0000000000000000000000000000000000000000..8e7cff3fe4f1ecb8dc5e8e7f2820f19aa16741a2 --- /dev/null +++ b/mich/225358.json @@ -0,0 +1 @@ +"{\"id\": \"225358\", \"name\": \"JOHNSON ET AL. vs. CIRCUIT JUDGE (Presque Isle)\", \"name_abbreviation\": \"Johnson v. Circuit Judge\", \"decision_date\": \"1895-11-10\", \"docket_number\": \"No. 15234\\u00bd\", \"first_page\": \"702\", \"last_page\": \"702\", \"citations\": \"1 McGrath 702\", \"volume\": \"1\", \"reporter\": \"Mandamus cases decided in the Supreme court of Michigan\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T22:01:37.635719+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOHNSON ET AL. vs. CIRCUIT JUDGE (Presque Isle),\", \"head_matter\": \"JOHNSON ET AL. vs. CIRCUIT JUDGE (Presque Isle),\\nNo. 15234\\u00bd.\", \"word_count\": \"46\", \"char_count\": \"267\", \"text\": \"To vacate order holding that in the answer to a petition for sale of land for delinquent taxes, there are no specific allegations sufficient to raise an issue.\\nOrder to show cause denied November 10, 1895.\"}" \ No newline at end of file diff --git a/mich/2256114.json b/mich/2256114.json new file mode 100644 index 0000000000000000000000000000000000000000..d40d40772b1b460279f48ba505bdbf3b2f684e3e --- /dev/null +++ b/mich/2256114.json @@ -0,0 +1 @@ +"{\"id\": \"2256114\", \"name\": \"PEOPLE v. HARAJLI\", \"name_abbreviation\": \"People v. Harajli\", \"decision_date\": \"1986-01-06\", \"docket_number\": \"Docket No. 83877\", \"first_page\": \"189\", \"last_page\": \"196\", \"citations\": \"148 Mich. App. 189\", \"volume\": \"148\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T02:07:57.915051+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Beasley, P.J., and V. J. Brennan and Cynar, JJ.\", \"parties\": \"PEOPLE v HARAJLI\", \"head_matter\": \"PEOPLE v HARAJLI\\nDocket No. 83877.\\nSubmitted November 13, 1985, at Detroit.\\nDecided January 6, 1986.\\nLeave to appeal applied for.\\nThe Special Investigation Division of the Michigan Department of Treasury (SID) received information from a citizen tip concerning alleged tax violations at Sam\\u2019s Pit Stop, owned by defendants, Zouhair Harajli and Ali Dakroub. On December 29, 1982, two SID agents visited Sam\\u2019s Pit Stop for the purpose of determining the identity of the sales tax licensee at that location. While the SID agents were visiting the premises, they proceeded to conduct a search without a warrant and illegally seized invoices and other documents in violation of defendants\\u2019 right agains't illegal searches and seizures. Included among the records seized were records identifying Royal Gas and Oil Co., and Dandy OR as suppliers of gasoline to Sam\\u2019s Pit Stop. Defendants were charged with ten counts of sales tax evasion and bound over to the Wayne Circuit Court on nine counts. Defendants brought a motion to suppress the evidence on the basis that it had been illegally seized. The people presented evidence at the hearing which, if believed, indicated that in November, 1982, Mr. Ralph Davis, head of the civil audit section of the Detroit office of the Department of Treasury, requested and received audit assignments on several wholesale distributors of gasoline in the Detroit area. Royal Oil and Dandy Oil were included in the audit assignments. As a result of information learned from the audit of Royal, Davis requested in February, 1983, a civil audit assignment of defendants\\u2019 business. At the time of his request, Davis did not know that a criminal investigation of defendants\\u2019 business was pending. Davis learned of the criminal investigation when he received the audit assignment in February, 1983. Davis then delivered information that he had gathered relative to the wholesale of gasoline by Royal Oil to defendants\\u2019 business to a SID agent and ceased further processing of the civil audit. The results of the civil audit of Dandy Oil were subsequently delivered to the SID. The court, Robert J. Colombo, Jr., J., granted defendants\\u2019 motion, holding that the doctrine of inevitable discovery did not apply and that the evidence concerning Royal Oil and Dandy Oil could not be considered even if the people established that the evidence was arrived at through means totally independent of the December 29,1982, illegal search and seizure. The people appealed by leave granted. Held:\\nReferences\\nAm Jur 2d, Evidence \\u00a7\\u00a7 408-427.\\nComment note on \\\"fruit of the poisonous tree\\u201d doctrine excluding evidence derived from information gained in illegal search. 43 ALR3d 385.\\nSee also the annotations in the ALR3d/4th Quick Index under Search and Seizure.\\n1. The court properly held that the inevitable discovery doctrine did not apply.\\n2. The court erred in holding that evidence concerning Royal Oil and Dandy Oil could not be considered even if the people established that the evidence was arrived at through means totally independent of the illegal search and seizure. If the people offer evidence concerning Royal Oil and Dandy Oil, or any other wholesale distributor, which was obtained through means wholly independent of the illegal search and seizure, it may be received during the trial.\\nAffirmed as modified.\\nSearches and Seizures \\u2014 Evidence \\u2014 Exclusionary Rule \\u2014 Independent Source Doctrine.\\nEvidence obtained in violation of the constitutional prohibition against unlawful searches and seizures is generally inadmissible; the inevitable discovery doctrine allows the admission of such evidence where the evidence would have ultimately or inevitably been discovered by lawful means; the independent source doctrine allows the admission of such evidence where it has also been discovered by means wholly independent of the constitutional violation, and the issue then is whether the connection between the lawless conduct and the discovery of the challenged evidence has become so attenuated as to dissipate the taint.\\nFrank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and E. David Brockman, Assistant Attorney General, for the people.\\nWarren H. Siegel, for defendant.\\nBefore: Beasley, P.J., and V. J. Brennan and Cynar, JJ.\", \"word_count\": \"2270\", \"char_count\": \"14188\", \"text\": \"Cynar, J.\\nDefendants were originally charged with sales tax evasion, MCL 205.27; MSA 7.657(27), in a ten-count information which alleged, inter alia, that for the last ten months of 1982 defendants evaded payment of Michigan sales tax by understanding wholesale purchases of gasoline, failing to report sales and falsifying records from the operation of a retail gas service station called Sam's Pit Stop in the City of Taylor. A preliminary examination was held on October 14, 1983, in Wayne County Circuit Court and defendants were bound over on nine of the ten charges. Defendants subsequently brought a motion to suppress the evidence on the basis that it had been seized during a search without a warrant and without consent. Defendants also moved to dismiss the charges due to selective prosecution. On January 28, 1985, the trial court granted defendants' motion to suppress the evidence seized during the illegal search and denied defendants' motion to dismiss. The people appeal the lower court's ruling to suppress the evidence by leave of this Court.\\nOn December 2, 1982, the Special Investigation Division of the Michigan Department of Treasury (SID) received information from a citizen's tip concerning alleged tax violations at Sam's Pit Stop, defendants' place of business. On December 29, 1982, two SID agents visited Sam's Pit Stop for the purpose of determining the identity of the sales tax licensee at that location. The parties concede that, while the SID agents were visiting the premises, they proceeded to conduct a search and illegally seized invoices and other documents in violation of defendants' federal and state guaranteed rights against illegal searches and seizures. US Const, Am IV; Michigan Const, 1963, art 1, \\u00a711. Included among the records seized were records identifying Royal Gas and Oil Co., and Dandy Oil as suppliers of gasoline to Sam's Pit Stop.\\nThe people presented evidence at the hearing on the motions which, if believed, indicates that in November, 1982, Mr. Ralph Davis, head of the civil audit section of the Detroit Office of the Department of Treasury, requested and received audit assignments on several wholesale distributors of gasoline in the Detroit area. Royal Oil and Dandy Oil were included in the audit assignments. As a result of information learned from the audit of Royal, Davis requested in February, 1983, a civil audit assignment of defendants' business. At the time of his request, Davis did not know that a criminal investigation of defendants' business was pending. Davis learned of the criminal investigation when he received the audit assignment in February, 1983. Davis then delivered the information that he had gathered relative to the wholesale of gasoline by Royal Oil to defendants' business to a SID agent, Lloyd Bushor, and ceased further processing of the civil audit. The results of the civil audit of Dandy Oil were subsequently delivered to the SID.\\nOn appeal the people argue that the trial court erred in granting defendants' motion to suppress because the challenged evidence was discovered by a means which was independent of the illegal seizure. We note that the people argued in the trial court that, because the evidence would have been inevitably discovered through the \\\"parallel investigation\\\" of the civil division of the department, defendants' motion to suppress should be denied.\\nThe United States Supreme Court explained the inevitable discovery and independent source exceptions to the exclusionary rule in Nix v Williams, 467 US 431, 442-444; 104 S Ct 2501; 81 L Ed 2d 377 (1984):\\n\\\"The core rationale consistently advanced by this Court for extending the Exclusionary Rule to evidence that is the fruit of unlawful police conduct has been that this admittedly drastic and socially costly course is needed to deter police from violations of constitutional and statutory protections. This Court has accepted the argument that the way to ensure such protections is to exclude evidence seized as a result of such violations notwithstanding the high social cost of letting persons obviously guilty go unpunished for their crimes. On this rationale, the prosecution is not to be put in a better position than it would have been in if no illegality had transpired.\\n\\\"By contrast, the derivative evidence analysis ensures that the prosecution is not put in a worse position simply because of some earlier police error or misconduct. The independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation. The independent source doctrine teaches us that the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position than they would have been in if no police error or misconduct had occurred. When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error of violation. There is a functional similarity between these two doctrines in that exclusion of evidence that would inevitably have been discovered would also put the government in a worse position, because the police would have obtained that evidence if no misconduct had taken place. Thus, while the independent source exception would not justify admission of evidence in this case, its rationale is wholly consistent with and justifies our adoption of the ultimate or inevitable discovery exception to the Exclusionary Rule.\\n\\\"It is clear that the cases implementing the Exclusionary Rule 'begin with the premise that the challenged evidence is in some sense the product of illegal government activity.' Of course, this does not end the inquiry. If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means then the deterrence rationale has so little basis that the evidence should be received. Anything less would reject logic, experience, and common sense.\\\" (Emphasis changed, footnotes omitted.)\\nThe trial court in this case granted defendants' motion to suppress on the basis that the doctrine of inevitable discovery does not apply to this case. We agree.\\nOur review of the record convinces us that the discovery of evidence of the wholesale purchases from Royal Oil and Dandy Oil by defendants does not involve the inevitable discovery doctrine but, rather, the independent source doctrine. As stated earlier, the evidence seized as a result of the illegal search, relative to Royal Oil and Dandy Oil, was also discovered as a result of the audit conducted by the civil division of the department. However, the evidence was apparently not discovered by the civil division until after the illegal search and seizure.\\nA trial court's decision to suppress evidence will be upheld unless the court's conclusion is found to be clearly erroneous. People v Bryant, 135 Mich App 206, 210; 353 NW2d 480 (1984). A ruling is clearly erroneous when the reviewing court is left with a definite conviction that a mistake has been made. People v Brown, 127 Mich App 436, 441; 339 NW2d 38 (1983), lv den 419 Mich 896 (1984).\\nWe must determine whether the evidence presented to the trial court was sufficient to establish that the evidence concerning the amount of wholesale distribution of gasoline to defendants by Royal Oil and Dandy Oil was discovered from a source wholly independent from the illegal search and seizure. Nix, supra, 467 US 443. The constitutional question under the Fourth Amendment was phrased in Wong Sun v United States, 371 US 471, 487, 489; 83 S Ct 407; 9 L Ed 2d 441 (1963), as whether \\\"the connection between the lawless conduct of the police and the discovery of the challenged evidence has 'become so attenuated as to dissipate the taint' \\\".\\nThe people argue that the challenged evidence was discovered as a result of an audit assignment of the Civil Audit Division which was wholly independent of the illegal search. Our review of the evidence indicates that in November, 1982, the Civil Audit Division requested and received audit assignments on several wholesale distributors of gasoline in the Detroit area, including Royal Oil and Dandy Oil. As a result of the information discovered from the audit of Royal Oil and Dandy Oil, a civil audit assignment of defendants' business was requested approximately six weeks after the illegal search and seizure. It is alleged that at the time the civil division had no knowledge of the criminal investigation pending against defendants.\\nThe trial judge ruled that the evidence concerning Royal Oil and Dandy Oil could not be considered even if the people established that the evidence was arrived at through means totally independent of the December 29, 1982, illegal search and seizure. We believe that the evidence seized during the illegal search was properly excluded by the trial judge. However, if the people offer evidence concerning Royal Oil and Dandy Oil, or any other wholesale distributor, which was obtained through means wholly independent of the illegal search and seizure, it is to be received during the trial.\\nAffirmed as modified.\\nSee Silverthorne Lumber Co v United States, 251 US 385, 392; 40 S Ct 182; 64 L Ed 319; 24 ALR 1426 (1920), where the Court held that the exclusionary rule applies not only to the illegally obtained evidence itself, but also to other incriminating evidence derived from the primary evidence. The Court emphasized, however, that such evidence does not automatically become \\\"sacred and inaccessible\\\". 251 US 392. The Court specifically stated:\\n\\\"If knowledge of [such facts] is gained from an independent source they may be proved like any others Ibid. (Emphasis added.)\\nFebruary 10, 1983.\"}" \ No newline at end of file diff --git a/mich/2274232.json b/mich/2274232.json new file mode 100644 index 0000000000000000000000000000000000000000..f51bfabe04dddeb07f87124cc4eea524bef2a88d --- /dev/null +++ b/mich/2274232.json @@ -0,0 +1 @@ +"{\"id\": \"2274232\", \"name\": \"BOATMAN v. MOTORISTS MUTUAL INSURANCE COMPANY\", \"name_abbreviation\": \"Boatman v. Motorists Mutual Insurance\", \"decision_date\": \"1987-03-03\", \"docket_number\": \"Docket No. 90800\", \"first_page\": \"431\", \"last_page\": \"440\", \"citations\": \"158 Mich. App. 431\", \"volume\": \"158\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T19:17:18.237303+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Sullivan, P.J., and Shepherd and R. M. Shuster, JJ.\", \"parties\": \"BOATMAN v MOTORISTS MUTUAL INSURANCE COMPANY\", \"head_matter\": \"BOATMAN v MOTORISTS MUTUAL INSURANCE COMPANY\\nDocket No. 90800.\\nSubmitted October 20, 1986, at Lansing.\\nDecided March 3, 1987.\\nCheryl Boatman' brought an action in the Genesee Circuit Court against Motorists Mutual Insurance Company, her no-fault automobile insurer. Plaintiff alleged that defendant was liable for personal injury protection benefits for injuries she sustained at a horse race track when the starting gate permanently affixed to an automobile failed to close, went beyond the track railing, and struck her. Defendant moved for summary disposition, arguing that the starting-gate vehicle either was not a \\\"motor vehicle\\u201d as defined in the no-fault act, or that it was not being used as a motor vehicle at the time of the injury. Defendant further argued that plaintiff\\u2019s injuries were not foreseeably identifiable with the normal use, maintenance, or ownership of a motor vehicle. Plaintiff filed a countermotion for summary disposition, contending that there were no genuine issues of material fact and that she was entitled to judgment as a matter of law. The trial court, Judith A. Fullerton, J., denied defendant\\u2019s motion and granted plaintiff\\u2019s motion, ruling that the automobile, despite the starting-gate modifications, did not cease to be a motor vehicle and that it was being used \\\"in its locomotive function\\u201d at the time of the accident and that plaintiff was entitled to all applicable no-fault benefits from defendant. Defendant filed a motion for reconsideration and reiterated the arguments it had earlier raised. Following a hearing, the trial court, over plaintiff\\u2019s objection, denied the motion, but stated on the record that the issue of whether the use of the automobile was of a type foreseeably identifiable with the use of a motor vehicle and the issue of damages remained undecided. Both parties filed motions for summary disposition on the foreseeability issue. The trial court granted defendant\\u2019s motion, finding plaintiff was not entitled to no-fault benefits, and denied plaintiff\\u2019s motion for the imposition of sanctions on defendant. Plaintiff appealed. Defendant cross-appealed from the trial court\\u2019s earlier rulings that the starting-gate vehicle was a motor vehicle and that it was being used as such at the time of the accident.\\nReferences\\nAm Jur 2d, Appeal and Error \\u00a7\\u00a7 292-308.\\nAm Jur 2d, Judgments \\u00a7\\u00a7 457, 926,1053-1056.\\nWhat constitutes \\u201centry of judgment\\u201d within meaning of Rule 58 of Federal Rules of Civil Procedure. 32 ALR Fed 772.\\nComment Note: Formal requirements of judgment or order as regards appealability. 73 ALR2d 250.\\nThe Court of Appeals held:\\n1. The judgment which the court initially entered in favor of plaintiff was a final judgment and was conclusive as to defendant\\u2019s liability for no-fault benefits. Defendant\\u2019s failure to appeal from that judgment in a timely fashion or to move for reconsideration in a timely fashion made the order by which the judgment was entered res judicata as to the issue of defendant\\u2019s liability. The trial court thus erred in reopening the liability issue by means of an inquiry into foreseeability.\\n2. Defendant\\u2019s meritless motion for reconsideration unnecessarily delayed the payment of benefits to plaintiff and may have added considerable expense to this lawsuit. The Court of Appeals remanded the case for the imposition of reasonable sanctions on defendant pursuant to court rule and a determination of plaintiff\\u2019s damages.\\nReversed and remanded.\\n1. Judgments \\u2014 Appeal \\u2014 Final Orders.\\nWhether an order is a final judgment from which a party may appeal is determined not by the order\\u2019s form, but by its effect; if an order finally disposes of the subject matter in controversy, it is a final judgment.\\n2. Insurance \\u2014 No-Fault \\u2014 Judgments \\u2014 Appeal.\\nA trial court\\u2019s grant of summary disposition in favor of a plaintiff who sought no-fault insurance benefits conclusively determined the issue of the defendant insurer\\u2019s liability where the defendant failed to appeal from the judgment or move for its reconsideration in a timely fashion.\\nBeltz & Nickola (by John D. Nickola), for plaintiff.\\nBellairs, Dean, Cooley, Siler & Moulton (by Steven W. Moulton), for defendant.\\nBefore: Sullivan, P.J., and Shepherd and R. M. Shuster, JJ.\\nCircuit judge, sitting on the Court of Appeals by assignment.\", \"word_count\": \"2993\", \"char_count\": \"18435\", \"text\": \"Shepherd, J.\\nPlaintiff appeals from a grant of summary disposition in favor of defendant. The trial court found that the injuries plaintiff sustained were not \\\"foreseeably identifiable\\\" with the normal use, maintenance or ownership of a motor vehicle, and thus ruled that plaintiff was not entitled to no-fault benefits. We hold that the trial court erred in reopening the issue of entitlement to no-fault benefits as that question was previously resolved in favor of plaintiff in a final order not appealed from by defendant. We reverse.\\nThe facts are not in dispute. On September 22, 1983, plaintiff, Diana Venier, and Sherri Everett, all of whom are Michigan residents, were injured while attending a horse race in Ohio. The injuries occurred after the starting gate, which was permanently affixed to a 1979 Cadillac, pulled away from the horses and started to leave the track. Because of mechanical failure or human error, the gate failed to close. It passed beyond the railing and into the crowd, injuring at least plaintiff, Venier, and Everett.\\nAll three sought personal injury benefits from their no-fault carriers and, when benefits were denied, filed suit. Because all three cases arose out of the same set of facts and circumstances, they were consolidated. Shortly thereafter, Venier settled with her insurance carrier and her suit was dismissed.\\nThe two remaining carriers filed a joint motion for summary disposition. On May 15, 1985, plaintiff and Everett responded to the motion. In the same document, plaintiff and Everett filed a countermotion for summary disposition, alleging that there was no genuine issue of material fact and that they were entitled to judgment as a matter of law.\\nA hearing was held on May 24, 1985. Counsel for Everett's carrier argued that the starting-gate vehicle either was not a \\\"motor vehicle,\\\" as that term is defined in the no-fault act, or that it was not being used as a motor vehicle at the time of injury. Counsel for defendant Motorists Mutual Insurance Company, plaintiffs carrier, argued a third ground, that the injuries were not \\\"foreseeability [sic] identifiable\\\" with the normal use, maintenance, or ownership of a motor vehicle. At the conclusion of argument, the trial court ruled from the bench that the vehicle was a \\\"motor vehicle\\\" under the act and that it was being used as a motor vehicle at the time the injuries were sustained. On this basis, the court denied the carriers' motion for summary disposition. In its bench opinion, the court did not mention the foreseeability issue. After the ruling, plaintiffs counsel reminded the court he had filed a countermotion for summary disposition. After confirming that plaintiff's motion was the \\\"same issue, the other way,\\\" the trial court ruled, \\\"as I just said, a motor vehicle being used as same.\\\"\\nThereafter, plaintiff's attorney noticed for entry a proposed judgment entitled \\\"Partial Judgment.\\\" Defendant filed no objection to the proposed order, and the court entered it on June 4, 1985. The order stated that, despite the starting-gate modification, the Cadillac did not cease to be a motor vehicle and that it was being used \\\"in its locomotive function\\\" at the time of the accident. The order reflected the denial of defendant's motion and the granting of plaintiffs motion, no genuine issue of material fact existing except as to the amount of damages. The order further provided that plaintiff \\\"is entitled to all applicable Michigan No-Fault benefits\\\" from defendant. The court retained jurisdiction \\\"to decide the amount in controversy if need be.\\\" As a result of this order, Everett's carrier paid her no-fault benefits and that suit was dismissed.\\nOn October 21, 1985, four and one-half months after the \\\"partial judgment\\\" was entered, defendant moved for reconsideration, arguing that the June 4, 1985, order was contrary to law on three grounds: (1) the vehicle was not a \\\"motor vehicle\\\" as defined in the act; (2) the vehicle was not being used as a motor vehicle; and (3) the injury was not foreseeably identifiable with the use of a motor vehicle. A hearing was held on the motion on November 12, 1985. Defense counsel argued that the foreseeability issue had not been previously addressed. The trial court agreed and stated that it had made no explicit ruling on the foreseeability issue either in the bench ruling or in the resulting order. Thus, the court concluded that the issue was yet to be decided.\\nOn December 23, 1985, the trial court entered an order, over plaintiffs objection, which stated that the motion for reconsideration was denied. However, it also stated that two issues remained: (1) whether the use of the Cadillac \\\"is the type of conduct that is foreseeably identifiable with the normal use of a motor vehicle\\\" and (2) damages. The effect of this ruling was to reopen the question of liability. At the hearing on plaintiffs objection to entry of the order, the court reiterated its position that it had never ruled on the foreseeability issue. At the same time, the court admitted that it \\\"may have implicitly have done so by signing the order that I signed\\\", and apologized for any confusion it may have created.\\nThereafter, both parties moved for summary disposition on the foreseeability issue. Plaintiffs motion was in the form of a motion to reconsider her initial motion for summary disposition. Both motions were heard on January 13, 1986. After hearing argument, the court granted defendant's motion for summary disposition, thereby finding plaintiff was not entitled to no-fault benefits. From the court's comments, it is not clear that the court realized it was ordering the entry of a final judgment. The court repeatedly offered to \\\"certify\\\" the question to this Court. The basis of the ruling was that the trial court was persuaded that an issue on foreseeability existed. It appears that the court granted defendant's motion simply so that this Court could review the issue, e.g., \\\"Let's find out whether this foreseeability aspect that I have been persuaded now does exist, is in fact an issue . . . ,\\\" and, \\\"If that's the law, then that'll be the law, and I don't know what it is for sure, but at this point I am persuaded there is an issue on foreseeability.\\\"\\nOn February 3, the court entered an order denying plaintiffs claim for no-fault benefits, finding that the motor vehicle's use and plaintiffs injuries were not foreseeably identifiable with the normal use of a motor vehicle. The court denied plaintiffs motion for summary disposition and granted defendant's motion for summary disposition. The court also denied plaintiffs motion for imposition of sanctions. Plaintiff appeals from that order. Defendant cross-appeals from the court's earlier rulings that the starting-gate vehicle was a \\\"motor vehicle\\\" and that it was being used as a motor vehicle at the time of the accident.\\nWe find plaintiffs first issue dispositive. The June 4, 1985, judgment was a final judgment. Defendant's failure to appeal from that judgment prevented the court from reopening the liability issue by means of an inquiry into foreseeability.\\nThe fact that the order is entitled \\\"Partial Judgment\\\" is not determinative. Whether an order is a final judgment is determined not by its form, but by its effect. If an order finally disposes of the subject matter in controversy, it is a final judgment. Attorney General ex rel Comm'r of Ins v Lapeer Farmers Mutual Fire Ins Ass'n, 297 Mich 188, 191-192; 297 NW 230 (1941).\\nThe issue is whether a judgment in a no-fault case must establish damages as well as liability for it to be final. In their commentary on former GCR 1963, 518, the rule preceding MCR 2.604, Honigman and Hawkins wrote that a partial summary judgment on issues establishing liability but leaving the issue of damages to be determined is not a \\\"true\\\" judgment, but is more in the nature of a pretrial order. 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 628. They also noted that such a judgment \\\"is not normally subject to appeal.\\\" 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 363 (emphasis supplied). MCR 2.116(J)(2)(b) appears to limit summary disposition appeals as of right to those involving a final judgment.\\nThe judgment in this case provided, however, that plaintiff was entitled to \\\"all applicable Michigan No-Fault benefits.\\\" That determination was conclusive as to defendant's liability for no-fault benefits. In the no-fault situation, at least, it was also a sufficient determination of a right to damages to render the judgment final. What expenses fall under personal protection insurance are fairly definite under the act and the case law. See MCL 500.3107; MSA 24.13107. Under this provision, an injured person receives benefits to cover the reasonable and necessary costs of medical care arising from the accident. The insured also receives work-loss benefits. From the record, we can discern no controversy over the reasonableness or necessity of the medical care plaintiff has received or the amount of the claimed work-loss benefit. Rather, the controversy appears to center solely on the issue of liability. The June 4, 1985, judgment contained a determination of a right to damages which was sufficiently specific and which was understood by the parties as an award of damages. The circuit court retained jurisdiction to decide the specific amount of damages only \\\"if need be,\\\" further suggesting the conclusiveness of the award as to liability . The June 4, 1985, judgment settled all the rights of the parties that were then in dispute. Consequently, it was a final judgment.\\nThe amount of damages in a no-fault case is a question that necessarily remains open even after the determination of liability. The damages in a no-fault case can continue for a very long period of time, i.e., for the life of the injured person. The issue can arise much later as to whether a claimed medical expense is attributable to the accident. It is necessary that a judgment such as was entered in this case be final to permit an appeal as of right on the liability issue, without affecting the insurer's right to challenge the amount of damages in an appropriate case. Swift payment of no-fault benefits is one purpose of the no-fault act. See Davey v Detroit Automobile Inter-Ins Exchange, 414 Mich 1, 10; 322 NW2d 541 (1982). That purpose was frustrated by the reopening of the liability issue in this case.\\nThe recent case of Manley v Detroit Automobile Inter-Ins Exchange, 425 Mich 140; 388 NW2d 216 (1986), is instructive. Manley was injured in an automobile accident and suffered very severe injuries requiring intensive care. At some point after benefits were paid, a dispute with the insurer arose concerning continued payment for private nursing care. Following a jury trial, the court entered a declaratory judgment requiring, among other provisions, that the insurer pay for unskilled nursing care \\\"as long as John Manley is cared for at the home of his parents\\\" or until further court order. The Manley Court stated in part:\\nDaiie contends that because the no-fault act requires a no-fault insurer only to reimburse an injured person for necessary allowable expense actually incurred, the trial judge erred in entering a declaratory judgment establishing amounts payable in the future before the expense was actually incurred. The tendency of this contention is that daiie may relitigate factual and legal issues that have already been decided when the Manleys seek payment for expenses incurred after the date of the trial. That is neither a workable nor a sound rule of law.\\nWhile a no-fault insurer is required to pay only necessary allowable expenses actually incurred, it does not follow that when a dispute arises a trial court is precluded from entering a declaratory judgment determining that an expense is both necessary and allowable and the amount that will be allowed. Such a declaration does not oblige a no-fault insurer to pay for an expense until it is actually incurred. [425 Mich 156-157.]\\nThe issue in Manley is not the same as the issue presented here. Nor does it appear that the insurer in Manley disputed liability. Nonetheless, Manley serves to emphasize the difficulty of establishing damages in a no-fault case and the need for keeping that question open. The judgment in the instant case was effectively a declaratory judgment on the issue of defendant's liability under the no-fault act. It conclusively determined that issue.\\nAs the judgment was final, defendant's failure to appeal it in a timely fashion, MCR 7.204(A), or move for reconsideration in a timely fashion, MCR 2.119(F), made the liability determination of the June 4, 1985, order res judicata as to that issue. We believe the circuit court err\\u00e9d in reopening the liability issue. Defendant's arguments concerning whether the Cadillac was a motor vehicle or was being used as a motor vehicle at the time may have merit. Those issues, as well as the trial court's alleged failure to address the foreseeability issue, should have been appealed before, as the trial court's finding of no-fault liability and benefits owed to plaintiff was determinative. The foreseeability argument is merely another aspect of the liability issue determined by the order. Those issues are not before us in this current appeal and we will not consider them in this untimely fashion. Accordingly, we reverse the grant of summary disposition and remand for further proceedings, including a determination of the amount of plaintiff's damages if necessary.\\nPlaintiff requested that the trial court impose sanctions as defendant's motion to reconsider was not well pounded under MCR 2.119(F). In light of our holding that the unappealed final judgment was res judicata as to defendant's liability, we agree. Defendant's motion has unnecessarily delayed payment of the benefits to which plaintiff is entitled, and has presumably added considerable expense to this lawsuit. We remand for the imposition of reasonable sanctions pursuant to MCR 2.113(A) and 2.114(E).\\nOur disposition renders the remaining issues moot. Reversed and remanded.\"}" \ No newline at end of file diff --git a/mich/2291007.json b/mich/2291007.json new file mode 100644 index 0000000000000000000000000000000000000000..222ec224eb43f32f9e8ec7a20928682eb0842592 --- /dev/null +++ b/mich/2291007.json @@ -0,0 +1 @@ +"{\"id\": \"2291007\", \"name\": \"MEIERS-POST v. SCHAFER\", \"name_abbreviation\": \"Meiers-Post v. Schafer\", \"decision_date\": \"1988-07-19\", \"docket_number\": \"Docket No. 96222\", \"first_page\": \"174\", \"last_page\": \"183\", \"citations\": \"170 Mich. App. 174\", \"volume\": \"170\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T19:20:02.891127+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Danhof, C.J., and Shepherd and C. L. Bosman, JJ.\", \"parties\": \"MEIERS-POST v SCHAFER\", \"head_matter\": \"MEIERS-POST v SCHAFER\\nDocket No. 96222.\\nSubmitted December 7, 1987, at Lansing.\\nDecided July 19,1988.\\nJan M. Meiers-Post brought an action in the Shiawassee Circuit Court against Robert Schafer alleging damages resulting from a sexual relationship defendant had with plaintiff while plaintiff was a high school student and defendant a teacher. Defendant admitted in a deposition to having sexual intercourse with plaintiff at various times prior to her graduation in 1974. The complaint was filed in 1986, twelve years after the last act of sexual intercourse was alleged to have occurred. Defendant moved for summary disposition and the trial court, Gerald D. Lostracco, J., granted the motion concluding that plaintiffs complaint was barred by the statute of limitations. Plaintiff appealed alleging that the period of limitation was tolled during the period following the illicit sexual relationship because she was repressing the memory of the event and that, after the memory was revived when she viewed a television program on the subject in July, 1986, she initiated suit within a month.\\nThe Court of Appeals held:\\n1. There is objectively manifested injury since defendant admitted to having had a sexual relationship with plaintiff while she was a high school student.\\n2. The statute of limitations can be tolled under the insanity clause, MCL 600.5851; MSA 27A.5851, if plaintiff can make out a case that she repressed the memory of the facts upon which her claim is predicated, such that she could not have been aware of rights she was otherwise bound to know and there is corroboration for plaintiffs testimony that the sexual assault occurred.\\nReversed and remanded.\\nDanhof, C.J., concurred in the result only._\\nReferences\\nAm Jur 2d, Limitation of Actions \\u00a7\\u00a7 138 et seq., 182 et seq., 186 et seq.\\nTime of existence of mental incompetency which will prevent or suspend running of statute of limitations. 41 ALR2d 726.\\n1. Limitation of Actions \\u2014 Minors \\u2014 Psychological Repression of Memory \\u2014 Corroboration.\\nThe period of limitation is tolled on the basis of insanity where the child victim of an illicit sexual relationship psychologically represses the memory of the events such that she could not have been aware of rights she was otherwise bound to know and where, after the memory is revived, there is corroboration that the alleged events actually occurred (MCL 600.5851, subds [1] and [2]; MSA 27A.5851, subds [1] and [2]).\\n2. Limitation of Actions \\u2014 Injuries to Person \\u2014 Minors.\\nThe period of limitation on the claim of a child victim for injuries to his person does not normally begin to run until the child reaches the age of eighteen (MCL 600.5851[1]; MSA 27A.5851[1]).\\n3. Limitation of Actions \\u2014 Insanity \\u2014 Removal of Disability.\\nA person who is insane at the time his claim accrues has one year after the disability is removed to bring his action although the applicable period of limitation has run; \\\"insane\\u201d is defined for such purposes as a condition of mental derangement such as to prevent the sufferer from comprehending rights he is otherwise bound to know; whether such person is \\\"insane\\u201d is a jury question unless it is incontrovertibly established either that the plaintiff did not suffer from insanity at the time the claim accrued or that he recovered from any such disability more than one year before he commenced his action (MCL 600.5851, subds [1] and [2]; MSA 27A.5851, subds [1] and [2]).\\nClark Shanahan, for plaintiff.\\nDonald A. Peters, for defend\\u00e1nt.\\nBefore: Danhof, C.J., and Shepherd and C. L. Bosman, JJ.\\nCircuit judge, sitting on the Court of Appeals by assignment.\", \"word_count\": \"2893\", \"char_count\": \"17900\", \"text\": \"Shepherd, J.\\nPlaintiff appeals from the summary disposition of her complaint which alleged damages resulting from a sexual relationship defendant had with plaintiff from approximately 1970 to 1974 while plaintiff was a high school student and defendant a teacher. The trial court concluded that plaintiff's complaint was barred by the statute of limitations. We reverse. We hold that the period of limitation is tolled where the child victim of an illicit sexual relationship psychologically represses the memory of the events and where, after the memory is revived, there is corroboration that the alleged events actually occurred. We do not decide whether a less restrictive rule is justified since the facts presently before us do not necessitate an examination of that issue.\\nIn his deposition, defendant admitted to having sexual intercourse with plaintiff, at various times, between the end of her sophomore year in high school, 1972, and her graduation in 1974. According to defendant, plaintiff began coming to the home of defendant and his then wife to help his wife correct school papers. His wife, too, was a teacher. Thereafter, defendant invited plaintiff to help him in correcting papers and a sexual relationship developed.\\nPlaintiff filed a complaint on August 28, 1986. In her response to the motion for summary disposition, plaintiff submitted the affidavit of Dr. David Ihilevich, Ph.D., a letter of a Dr. Allan J. Enelow, M.D., and a letter of Joan Brazelton, M.S.W., who interviewed plaintiff. They provided the following record. Dr. Ihilevich's affidavit states:\\n2. I have been requested to give an opinion in the following situation: Can a 30 year old professional female, otherwise normal, repress the recollection of a childhood seduction by a male teacher, to the extent that she is not able to pursue her legal remedies for a period of ten years and more following her majority?\\n3. The answer is that such a phenomena is possible based upon a defensive mental process known as repression. Our studies have show [sic] that this process functions independently of educa tion or intelligence as measured by various standard tests.\\nDr. Enelow's letter states:\\nWithout actually examining Ms. Post myself, and based on your account of the statements of Ms. Post and the psychiatric records that I reviewed, I find it medically probable that Ms. Post had to repress the painful experience of the guilt-laden sexual relations with her high school teacher and thus was not able to allow the memories to fully enter consciousness or to take any action about it.\\nShe could not have realized that she had a cause of action against her teacher because of the combination of internal psychological factors and the relationship of the high authority teacher to her self-concept of a low status person who must accede to authority. Thus, it is quite understandable that when she 'witnessed the television program about the sexual exploitation of students by a teacher, the entire episode that had previously been largely repressed came into consciousness and she became aware of all of its implications for the first time.\\nThe letter of Ms. Brazelton, plaintiffs therapist, states:\\nI am writing this letter to clarify the diagnosis of our mutual client Mrs. Jan Post. Mrs. Post was seen for an initial intake appointment on July 21, 1986. She reported that two weeks prior she had viewed a television program about a teacher sexually abusing his students. She stated that at the age of 15 she too had been sexually abused by her math teacher. Since viewing the program she was distressed with symptoms of nightmares, sleep disturbance, depression, anxiety, and feelings of guilt. She further stated that she was wanting to be alone and was no longer interested in significant activities. I observed her constricted affect and problems with concentration.\\nAt that time and presently her symptoms support the diagnostic criteria for Post-traumatic Stress Disorder.\\nThe Post-traumatic feature of the diagnosis is typical of persons who do not have the emotional resources to process the trauma hence deny its existence. Activities or situations that may arouse recollections of the traumatic event are avoided perhaps for years. It is not uncommon that symptoms become intensified when the individual is exposed to a situation that resembles the original trauma (i.e. the television show Mrs. Post viewed on sexual abuse). It is not unusual for the symptoms to emerge after a latency period of months or years following the trauma.\\nAfter a hearing on defendant's motion for summary disposition based on the statute of limitations, the trial court dismissed plaintiffs case.\\nThe limitation period for actions for injuries to a person is three years. MCL 600.5805(8); MSA 27A.5805(8). The issue before us is whether plaintiff's claim was barred under Michigan law. Normally, the period of limitation on the claim of a child victim does not begin to run until the child reaches the age of eighteen. MCL 600.5851(1); MSA 27A.5851(1). That section also provides that if a person is insane at the time her claim accrues, she has one year after the disability is removed to bring the action although the applicable period of limitation has run. MCL 600.5851(2); MSA 27A.5851(2) defines \\\"insane\\\" as \\\"a condition of mental derangement such as to prevent the sufferer from comprehending rights he or she is otherwise bound to know.\\\" Whether a person is insane for purposes of the above provision is a jury question unless it is incontrovertibly established either that the plaintiff did not suffer from insanity at the time the claim accrued or that she had recovered from any such disability more than one year before she commenced her action. See Makarow v Volkswagen of America, Inc, 157 Mich App 401, 407; 403 NW2d 563 (1987).\\nThere are no Michigan cases on point; that is, there are no Michigan cases which consider whether the psychological phenomena known as repression and posttraumatic syndrome can constitute insanity for tolling purposes. As it applies to the tolling statutes, we see three possible factual postures in this case. (1) Plaintiff had repressed all memory of the events of the sexual encounters with defendant and hence was unaware of any possible cause of action resulting from the events. Memories of these events were triggered by the television show and plaintiff immediately sought psychotherapy and, now, legal recourse. (2) The events remained in the backwater of plaintiffs consciousness and plaintiff suffered ongoing psychological difficulties with resulting manifestations in her everyday life. The television show, however, awakened in plaintiff the significance of the events in her high school years and the causal connection between those events and her current psychological problems and she now seeks legal recourse. (3) Finally, plaintiff consciously thought and knew of the acts engaged in by her and defendant but suffered no symptoms. However, the television show triggered a psychological reaction which has resulted in the onset of a series of debilitating symptoms. The pertinent written evidence, the letter and affidavit of the two doctors and the letter of plaintiffs therapist, are ambiguous and the complaint gives no clue as to which theory plaintiff proceeds under.\\nAlthough there are no Michigan cases on point, two courts in other jurisdictions have ruled in similar situations. In DeRose v Carswell, 196 Cal App 3d 1011; 242 Cal Rptr 368 (1987), plaintiff complained that she was sexually abused by her step-grandfather between the ages of four and eleven (1966 to 1973). Specifically, plaintiff alleged that she did not immediately discover her injuries and their causes \\\"due to the nature of the acts of the defendant, and the psychological mechanisms experienced by [plaintiff] to deny, repress and dissociate herself from the underlying events, or to seek therapeutic intervention until within the last six months.\\\" 242 Cal Rptr 370. In order to defeat the statute of limitations defense, the plaintiff in DeRose invoked the delayed-discovery rule alleging she did not appreciate \\\"the causal relationship\\\" between the assaults and emotional injuries she suffered. She claimed that her inability until recently to understand what caused the emotional injuries constituted \\\"insanity.\\\" Plaintiff did not claim that she had forgotten the events or repressed the memory of the actual assaults, but, rather, she claimed that she was unable to appreciate the \\\"causal relationship\\\" between the assaults and her emotional injuries.\\nThe California appellate court ruled in favor of defendant on the statute of limitations issue. The court refused to apply the delayed-discovery rule because plaintiff could not affirmatively show that she could satisfy the minimum conditions necessary to the application of that rule. The court held that the doctrine applies only when a plaintiff has not discovered all of the facts essential to the cause of action. Since plaintiff admitted that she knew of the factual elements of her cause of action long before, the delayed-discovery rule could not be applied.\\nIn Tyson v Tyson, 107 Wash 2d 72; 727 P2d 226 (1986), the Washington Supreme Court decided the issue whether the delayed-discovery rule could toll the statute of limitations where the victim of child sexual abuse had blocked the incidents from her conscious memory during the entire time of the running of the period of limitation. In Tyson, plaintiff claimed she was a victim of her father's sexual abuse between 1960 and 1969, from the time she was three until she was eleven years old. Plaintiff alleged that the sexual assaults caused her to suppress any memory of the acts and she did not remember the acts until entering psychotherapy in 1983. She filed a complaint within one year of initiating psychotherapy. She claimed to have repressed the memory of the events entirely.\\nRelying heavily on the policy considerations underlying the statute of limitations, the Washington Supreme Court, in a five to four decision, concluded that the delayed-discovery rule \\\"should be adopted only when the risk of stale claims is outweighed by the unfairness of precluding justified causes of action.\\\" 107 Wash 2d 76. The Washington court held that the rule should be adopted only where there is objective manifestation of injury. Since there was no such evidence in the case, the court refused to apply the delayed-discovery rule.\\nFour members of the Washington Supreme Court dissented. The dissenters rejected the conclusion that objective, verifiable evidence was a prerequisite to the application of the delayed-discovery rule. Concluding that the trier of fact determines whether a plaintiff has discovered his or her cause of action within a reasonable time, the dissent argued that the evidentiary problems which a plaintiff may encounter in convincing the trier of fact of the reasonableness of her late discovery were not the court's concern. The dissent would hold \\\"the discovery rule, which delays the accrual of a cause of action to the time when a plaintiff discovers or reasonably should have discovered all elements of that cause of action, is applicable to complaints alleging negligence and intentional torts by adult survivors of childhood sexual abuse where the trier of fact finds that the plaintiff has repressed all conscious memory of such abuse during the entire period of the statute of limitations.\\\" 107 Wash 2d 90.\\nThe issue which so troubled the Washington Supreme Court majority is not present in the instant case. The defendant here, in his deposition, admits to having had a sexual relationship with plaintiff while she was a high school student. Therefore, there is objectively manifested injury. We do not interpret that term to mean clearly visible physical injury since such evidence is unlikely to be present years after the events. We believe the Washington and California courts were concerned with cases where long after an alleged assault an adult testifies without corroboration to early childhood memories that were allegedly repressed for many years. In the instant case, the defendant's admissions cure all such concerns. Whether a rule as broad as that advocated by the Washington dissenting opinion should be adopted need not be addressed in this case.\\nThe rule we derive from the California and Washington cases, see also Raymond v Ingram, 47 Wash App 781; 737 P2d 314 (1987) (following the Tyson majority), is that the statute of limitations can be tolled under the insanity clause if (a) plaintiff can make out a case that she has repressed the memory of the facts upon which her claim is predicated, such that she could not have been aware of rights she was otherwise bound to know, and (b) there is corroboration for plaintiff's testimony that the sexual assault occurred. We believe the rule is sound. It strikes a fair balance between the risk of stale claims and the unfairness of precluding justifiable causes of action.\\nWe cannot with certainty determine whether this case fits within the narrow limits of the rule we have just announced given the ambiguity of both the complaint and the written opinions plaintiff relies on in opposing the summary disposition motion. Specifically, the expert opinion is not based on a clinical evaluation of this plaintiff that concludes that she repressed the memory of the facts upon which her claim is based. The trial court did not clearly address this issue, but given the state of the law, the trial judge cannot be faulted.\\nWe reverse the trial court's dismissal of plaintiff's cause of action and remand for further proceedings. Any further motions and answers should be fully supported by additional legal and psychiatric authority. We emphasize that the narrow rule stated herein constitutes the minimum threshold that any appellate court has allowed. Although the facts of this case appear to fall within these narrow limits, we believe further factual development is needed in light of the principles stated in this opinion. Whether a cause of action that extends these boundaries can survive summary disposition will have to await another day.\\nReversed and remanded.\\nC. L. Bosman, J., concurred.\\nDanhof, C.J., concurred in the result only.\"}" \ No newline at end of file diff --git a/mich/2297358.json b/mich/2297358.json new file mode 100644 index 0000000000000000000000000000000000000000..d5a9d51c5f11afceea7f776db2ec92af680e2428 --- /dev/null +++ b/mich/2297358.json @@ -0,0 +1 @@ +"{\"id\": \"2297358\", \"name\": \"PEOPLE v. BURNETT\", \"name_abbreviation\": \"People v. Burnett\", \"decision_date\": \"1988-03-07\", \"docket_number\": \"Docket No. 95523\", \"first_page\": \"741\", \"last_page\": \"757\", \"citations\": \"166 Mich. App. 741\", \"volume\": \"166\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T17:59:22.349729+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Cynar, P.J., and Beasley and K. B. Glaser, JJ.\", \"parties\": \"PEOPLE v BURNETT\", \"head_matter\": \"PEOPLE v BURNETT\\nDocket No. 95523.\\nSubmitted January 7, 1988, at Lansing.\\nDecided March 7, 1988.\\nLeave to appeal applied for.\\nElmer J. Burnett was convicted of conspiracy to commit first-degree murder and arson, arson, breaking and entering with intent to commit murder, two counts of first-degree murder, three counts of assault with intent to murder and possession of a firearm during the commission of a felony following a jury trial in the Genesee Circuit Court before Judge Earl E. Borradaile. Defendant appealed.\\nThe Court of Appeals held:\\n1. Defendant\\u2019s claim that the prosecutor used only innuendo and hearsay testimony to demonstrate defendant\\u2019s involvement in drug trafficking and improperly referred to his girlfriend\\u2019s house as defendant\\u2019s drug house is without merit.\\n2. Defendant\\u2019s claims that he was denied a fair trial by the trial court and as a result of the prosecutor\\u2019s conduct at trial are without merit.\\n3. Any error in the admission of evidence of a revolver acquired by defendant after he fled the state and a receipt for its purchase was harmless.\\n4. Defendant was not denied the effective assistance of counsel.\\n5. The trial court improperly instructed the jury on the requisite intent for assault with intent to murder. Defendant\\u2019s convictions on three counts of assault with intent to murder are reversed and remanded for a new trial. Defendant\\u2019s convictions and sentences for conspiracy to commit first-degree murder and arson, breaking and entering with intent to commit murder, two counts of first-degree murder and felony firearm are affirmed.\\nAffirmed in part, and reversed and remanded in part.\\n1. Criminal Law \\u2014 Trial \\u2014 Joinder.\\nOffenses may be joined for trial when they are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.\\nReferences\\nAm Jur 2d, Criminal Law \\u00a7 291.\\nAm Jur 2d, Homicide \\u00a7\\u00a7 568-582.\\nWhat constitutes attempted murder. 53 ALR3d 612.\\n2. Criminal Law \\u2014 Prosecutorial Misconduct.\\nThe test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial; questions of such misconduct are decided on a case-by-case basis by evaluating the wrongful act in the context of the record.\\n3, Criminal Law \\u2014 Assault with Intent to Murder \\u2014 Intent.\\nA defendant may be found guilty of assault with intent to murder only if there is an actual intent to kill; an intent to place the victim in fear of being murdered is insufficient (MCL 750.83; MSA 28.278).\\nFrank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert E. Weiss, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Edwin R. Brown, Assistant Prosecuting Attorney, for the people.\\nState Appellate Defender (by Mardi Crawford), for defendant on appeal.\\nBefore: Cynar, P.J., and Beasley and K. B. Glaser, JJ.\\nCircuit judge, sitting on the Court of Appeals by assignment.\", \"word_count\": \"4753\", \"char_count\": \"28523\", \"text\": \"Beasley, J.\\nDefendant, Elmer James Burnett, was convicted by a jury of conspiracy to commit first-degree murder and arson, contrary to MCL 750.157a; MSA 28.354(1), arson, contrary to MCL 750.72; MSA 28.267, breaking and entering with intent to commit murder, contrary to MCL 750.110; MSA 28.305, two counts of first-degree murder, contrary to MCL 750.316; MSA 28.548, three counts of assault with intent to murder, contrary to MCL 750.83; MSA 28.278, and possession of a firearm during the commission of a felony, contrary to MCL 750.227b; MSA 28.424(2). Defendant was sentenced to serve concurrent terms of life on the conspiracy to commit first-degree murder and arson convictions, not less than thirteen nor more than twenty yehrs on the arson conviction, not less than ten nor more than fifteen years on the breaking and entering with intent to commit murder conviction, life on both first-degree murder convictions, life on all three assault with intent to murder convictions, and a two-year consecutive sentence for the felony-firearm conviction. Subsequently, defendant's delayed application for leave to appeal was granted by this Court.\\nIn order to understand the various peripheral arguments defendant makes on appeal, it is necessary first to review the prosecutor's case.\\nThe prosecutor's theory at trial was that defendant intended to kill Robert Anderson, Thomas Batson, and a man named Mafete because of their interference with his drug business. The prosecutor elicited testimony from Gloria Ruffin, Bonnie Davis, James Anderson, Marilyn Walton, Thomas Batson and Nathaniel Grover concerning their involvement and defendant's involvement in drug trafficking.\\nThe events that gave rise to these gruesome crimes began during the evening on December 10, 1984, and continued through the night to the morning of December 11, 1984. Defendant was accompanied at various times by Nathaniel Grover, Robert Thompson, and Curtis Montana Phil-pots. At approximately 10:00 p.m. on December 10, 1984, Grover received a message from a young man that defendant and Robert Anderson had had a dispute. Grover was told that defendant wanted him to bring defendant the \\\"defender,\\\" a 12-gauge shotgun. At the time, Grover was at Gloria Ruffin's home, she being his girlfriend with whom he had lived for the past four months. Grover sold drugs out of Gloria's home.\\nGrover brought the \\\"defender\\\" to defendant and also carried with him a .38 caliber automatic pistol and a .357 caliber revolver. Defendant was at Bonnie Davis' home, she being his girlfriend. Bonnie Davis and defendant sold drugs out of her home. When Grover arrived at Davis' home, defendant told Grover that some guys, including Robert Anderson and Mafete, had \\\"disrespected\\\" him and that they were expected to return. Grover drove defendant over to defendant's wife's home. As they were on their way, defendant and Grover saw a Nova which they believed belonged to Robert Anderson. Defendant told Grover to follow the Nova, drive around the block, park and wait for him. Defendant got out of the car, took the \\\"defender\\\" with him, and fired three or four shots at the Nova. Defendant returned to the car and told Grover that \\\"[he] got that bitch.\\\"\\nRenaldo Hutson was driving the Nova at the time, and he was hit in the shoulder and hospitalized. Hutson did not know defendant.\\nGrover proceeded to drive defendant to his wife's home where defendant either changed clothes or put some in the washing machine and told Grover to clean the \\\"defender.\\\" Defendant and Grover returned to Gloria Ruffin's home around midnight or 1:00 a.m., where they began to drink, smoke marijuana and do cocaine.\\nThompson and Philpots arrived at Ruffin's home around 2:00 a.m., after stopping at Bonnie Davis' home to look for defendant. She had told them about the incident with Robert Anderson. Thompson and Philpots asked defendant what he wanted to do about the incident, and they decided to shoot at and burn Robert Anderson's home.\\nAll of the men put on gloves and defendant, Grover and Philpots armed themselves. Grover carried a .357 magnum and the \\\"defender,\\\" defen dant carried a 12-gauge pump shotgun, and Phil-pots carried a .38 caliber automatic pistol. Defendant, Grover, Thompson and Philpots all drove over to Bonnie Davis' home. Grover sent Philpots to get a rifle which he gave to Thompson upon Philpots' return to the car. Then they all drove to a gas station where Grover and Thompson filled an empty container with gasoline. They then drove over to Robert Anderson's home and parked around the corner from it. Philpots made four firebombs out of the gasoline and some empty beer bottles and gave one each to defendant, Grover and Thompson. By now it was around 3:00 or 3:30 a.m. and they all walked to Robert Anderson's driveway.\\nPhilpots lit his firebomb and ran to the back of Anderson's home. Grover lit his firebomb and threw it into the back door. Grover ran around to the front of the home after hearing gunshots coming from that direction. As he got there, Grover saw Philpots running away from the home, and Thompson was standing behind a tree in the front of the home with a .30-06 rifle. Defendant apparently was in the back of the home and came out front shortly afterwards with a 12-gauge shotgun. Grover called Philpots back to the home and they all stood in front of the home and shot at it.\\nRobert Anderson's mother, Barbara, and Robert were both hit by the shots fired into their home. Barbara was wounded and Robert was killed. After firing approximately twenty shots, they left. Phil-pots and Thompson drove off in the car and defendant and Grover began walking. As they walked through the neighborhood, defendant began shooting at the houses. One of defendant's bullets went through the front window of Lisa Carr's home, and a piece of glass hit her in the face.\\nPhilpots and Thompson came around the corner in the car, and defendant and Grover shot at it. They ceased firing after Philpots yelled that it was the wrong car. Defendant and Grover got into the car with Philpots and Thompson, and they all drove back to Gloria Ruffin's home, taking all of the guns into her home except for the .357 pistol.\\nWhile they were in the house, Thompson and Philpots began to discuss Thomas Batson. They thought that Batson was a \\\"snitch\\\" and wanted to get him out of his apartment so that Philpots could sell drugs out of the apartment. Defendant interrupted the conversation and yelled at the others for not waiting until the Andersons came out of their home to shoot. Defendant felt that only Thompson did it correctly. At some time during the conversation, they realized that the .357 pistol was missing and defendant went out to the car to retrieve it. While defendant was retrieving the pistol, Thompson stated that defendant took the .30-06 rifle from him at the Anderson home and began shooting it.\\nEventually, they all began loading their guns to go over to Thomas Batson's apartment. Defendant stated that he was going to kill Batson, and Phil-pots stated that defendant would not have to because he would do so. Defendant told Grover that he did not have to go over to Batson's apartment because he was too drunk. Grover gave defendant the keys to his car, and Philpots drove his own car.\\nDefendant, Thompson and Philpots arrived at Batson's apartment around 7:00 a.m. Batson was not at home, but Marilyn Walton, the downstairs tenant, heard talking and shooting coming from Batson's apartment. Defendant and the others shot at the back door, bed, refrigerator, walls and floor of the apartment. Some of the shots came through the ceiling into Marilyn Walton's apartment. Dur ing the course of all this, Marilyn Walton received a call from Philpots telling her not to go outside or look out of the window. The shooting in Batson's apartment continued for about ten minutes, then defendant and Thompson began to run down the street and shoot their guns.\\nA group of children, including Ray Parker, Jr., age eleven, and Alpha Breed, age fourteen, were standing at a church waiting for their school bus. Defendant and Thompson approached the children and began shooting at them. Parker was hit and died after receiving four gunshot wounds to his body. Breed, who was hit in the thigh, testified that the gunmen deliberately aimed at Parker and him and shot them. The other children scattered about the area. Defendant and Thompson ran between the houses near Eldridge and Flint Park Boulevard.\\nLadale Woods, a police officer for the City of Flint who lived in the vicinity, was leaving for work around 7:30 a.m. that morning. As he was leaving his home, Officer Woods heard \\\"three loud bangs\\\" and saw defendant and Thompson run in between the houses. Officer Woods drove his cruiser down the street \\u2022 looking in between the houses.\\nIn the meantime, defendant had run between two homes and was leaning against Marilyn Rembert's home near her bedroom window. She watched defendant as he stood against her home and loaded his gun. As he was doing so, defendant kept looking out towards the street and around the corner. By now, Officer Woods had backed up to the corner and began driving down the street again looking in between the homes. As he drove, defendant ran into the street, stood behind Officer Woods' cruiser, and fired three shots at him. The third shot entered the cruiser and Officer Woods radioed for assistance. Defendant ran between the homes, and Officer Woods backed up to find him. Officer Woods drove a short distance, and defendant reappeared in front of him and fired two more shots. Officer Woods shot back at defendant, who then fired back at Woods and ran between the houses.\\nThompson had run back to Marilyn Walton's home, went inside, took oif all his clothes but his pants and told the police he did not know what had happened. Thompson was arrested that morning.\\nDefendant managed to return to Gloria Ruffin's home, where he told Grover that Thompson had been arrested and that he had shot at a police car with a pistol and also shot a little boy. Defendant and Grover then drove over to see if Thompson had been arrested and turned around when they saw the police. On the way back to Ruffin's home, the police stopped them. They were released because the police could not tie them to the incidents.\\nGrover was arrested on December 12, 1984, at Gloria Ruffin's home. The police also seized six or seven shotguns and a pistol. On December 11, 1984, the police went to Bonnie Davis' home looking for defendant. He was not there, but the police seized a .30-06 rifle and a shotgun from the Davis home.\\nDefendant showed up at the Davis home the morning of December 12, 1984, and she told him that the police had been there. Defendant left running out of the front door and told her that he had to leave. She heard from defendant a couple of weeks later when he called, telling her that he was on the move and was, at the time, about five states away. Defendant and Bonnie Davis eventu ally were arrested in Champaign, Illinois, in June, 1985.\\nDefendant's trial began on April 8, 1986. Defense counsel did not move prior to trial to sever any counts of the information. As indicated, on April 16, 1986, the jury rendered verdicts. In the context of this evidence, defendant raises five issues on appeal.\\nFirst, defendant claims that the prosecutor used only innuendo and hearsay testimony to demonstrate defendant's involvement in drug trafficking and improperly referred to his girlfriend's (Bonnie Davis') home as defendant's drug house. We disagree. This claim of error is without merit. In the first place, this was not a case where defendant was charged with drug violations. These charges and convictions were all murder related. The drug-trafficking testimony was only in connection with the prosecutor's theory as to the motive for the Anderson murder. In fact, the trial judge instructed and cautioned the jury that the evidence of defendant's drug trafficking was for the limited purpose of demonstrating motive.\\nFurthermore, defendant's claim that the prosecutor used only innuendo and hearsay to show his drug involvement is incorrect. Similarly incorrect is defendant's claim that the prosecutor improperly referred to the Davis home as defendant's drug house. Grover testified as follows:\\nQ. J. B. [defendant] didn't have any dope house; did he?\\nA. Not as I knew of. He had a house and he had his lady start dealing the drugs out of the house on Rankin Street.\\nQ. Pardon?\\nA. Out of the house on Rankin Street he started doing drugs.\\nQ. You said. J. B. had a house where he sold drugs?\\nA. On Rankin Street, yes, sir.\\nNo objection was made to this questioning.\\nSecond, defendant claims that the trial court denied him a fair trial by permitting a police officer to testify concerning defendant's acquisition of a .44 caliber revolver after defendant fled the state when it was not alleged that defendant used the revolver in any of the charged offenses. At trial, evidence of defendant's flight first was elicited from his girlfriend, Bonnie Davis. She testified that defendant left running out of her home on December 12, 1984, after she told him that the police had been at her home. She further testified that she heard from defendant a couple of weeks later when he telephoned her saying he was about five states away from Michigan. After a series of more phone calls, she met defendant in Phoenix, Arizona, where she purchased a Cadillac for defendant. Apparently, she also gave defendant her deceased husband's identification papers which enabled him to travel about the states under the name of Tyrone Davis. She left the Cadillac with defendant and returned home. She next saw defendant in Champaign, Illinois, sometime around June, 1985, and it was there that both she and defendant were arrested.\\nLater in the trial, a police officer testified concerning defendant's arrest in Champaign, Illinois, and his transportation of defendant back to Michigan. The officer testified that, in addition to transporting defendant back to Michigan, he also carried with him defendant's personal property, including a driver's license, social security card, a Blue Cross card, all of which listed Tyrone Davis' name, and a number of receipts. This was done over defense counsel's objection that the officer's testimony was hearsay, because he lacked personal knowledge of where the receipts were found, and that the testimony was immaterial. The officer continued to testify about the receipts, including one from a jewelry store in Phoenix, Arizona, for the purchase of a revolver, holster and ammunition. Defense counsel again objected, arguing that the officer was testifying without personal knowledge of the receipts, since he did not retrieve them from defendant or the person who issued them, and that the evidence was immaterial to the offenses with which defendant was charged. The prosecutor argued that Grover established that defendant had no guns of his own and that the evidence was relevant to defendant's flight.\\nThe court stated:\\nThe Court: I'm overruling the objection. This was material he brought back with the Defendant. It's quite clear that the Defendant was in Phoenix, Arizona.\\nHe was using the name of Tyrone Davis, which Bonnie Davis testified to, which was her deceased husband's name.\\nIn fact, he took some of Tyrone Davis's documents with him. It's entirely relevant. I overrule the objection.\\nLet's bring the jury back.\\nThe officer proceeded to complete his testimony and stated that a receipt for a .44 caliber bulldog revolver and the revolver itself were found among defendant's property. After attempting to admit into evidence a photograph of three guns, including the .44 caliber bulldog revolver, the prosecutor withdrew the photo and moved on to a new line of questioning. Again, this was all done over defendant's objections.\\nDefendant contends that the evidence of the .44 caliber bulldog revolver, including the receipt for its purchase, was inherently prejudicial, inflammatory and irrelevant. He argues that the revolver was not connected to the crimes with which he was charged and that'the evidence of the revolver should have been excluded from trial. The prosecutor contends that the testimony concerning the .44 caliber bulldog revolver was relevant and material to defendant's flight. The prosecutor further argues that it was at best harmless error, given the overwhelming evidence of defendant's guilt.\\nEvidence is relevant if it has \\\"any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\\\" Here, it is undisputed that evidence of defendant's flight from Flint was admissible, relevant and material and could properly be considered by the jury as an inference of defendant's guilt. However, evidence of the .44 caliber bulldog revolver and the receipt for its purchase probably served no probative evidentiary purpose at trial.\\nHowever, in the within case, the direct and circumstantial evidence of defendant's guilt was strong and overwhelming. In contrast, the testimony that was admitted in error constitutes such a small portion of the evidence against defendant that it is wholly unlikely that without it one juror would have voted to acquit. In view of this, we believe any error here was harmless.\\nThird, defendant claims that defense counsel's failure to move for a severance of the nine counts of the information and suppress evidence of the assaults upon Renaldo Hutson and Lisa Carr denied him effective assistance of counsel. Offenses may be joined for trial where, as here, they \\\" 'are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.' \\\" The charges against defendant resulted from a series of offenses that began late in the evening on December 10, 1984, and continued to the morning of December 11, 1984. As a result of those offenses, defendant was charged with conspiracy to commit murder and arson, breaking and entering with intent to commit murder, two counts of first-degree murder, three counts of assault with intent to murder and felony firearm. These offenses occurred in succession and appear to have been prompted by defendant's intent to retaliate against those who had \\\"disrespected\\\" him. It is unlikely that defense counsel would have obtained a severance even if he had made such a motion. Under these circumstances, we see no error requiring reversal in failing to move for severance.\\nDefense counsel's failure to object at trial to the evidence of the assaults upon Renaldo Hutson and Lisa Carr may have been a mistake, but not so serious as to deny defendant a fair trial. Contrary to defendant's contention that both assaults were of minimal probative value, the record demonstrates that the assaults were relevant to the counts of the information. Renaldo Hutson was shot at because defendant and Grover believed he was Robert Anderson. Lisa Carr was assaulted shortly after defendant firebombed and shot at Robert Anderson's home. These assaults were clearly committed during the wake of violence that occurred between December 10, 1984, and December 11, 1984, and evidence of them was relevant and admissible at trial. In fact, these assaults seem to have been part of the res gestae. Furthermore, absent evidence of the assaults, we do not believe that defendant would have had a reasonable chance of acquittal or that the result would have been different.\\nFourth, defendant claims that the prosecutor's conduct at trial served to deny him a fair trial. \\\"The test of prosecutorial misconduct is whether defendant was denied a fair and impartial trial.\\\" Questions of prosecutorial misconduct are decided on a case-by-case basis, and this Court must evaluate the wrongful act in the context of the record. Defendant contends that the prosecutor acted improperly in several instances. First, defendant argues that the prosecutor repeatedly led Officer Woods on redirect examination, disparaged defense counsel's cross-examination and offered his own unsworn testimony. So viewed, the conduct complained of on appeal is trifling and not of such a magnitude as to require further comment in this opinion. We reject defendant's claims.\\nFifth, defendant claims that the trial court denied him a fair trial. Measuring his objections against the record satisfies us that defendant's claims are without merit.\\nSixth, defendant claims that the court improperly instructed the jury on the requisite intent on the charge of assault with intent to murder. No objection to the jury instruction was made by defense counsel in the trial court prior to deliberations. Although an accused has a right to a properly instructed jury, the failure to object to an allegedly erroneous instruction precludes appellate review absent manifest injustice.\\nDespite defendant's failure to object at trial, he now contends that the court improperly instructed the jury on the requisite intent for assault with intent to murder. He argues that the court's instruction that intent to place a person in fear of being murdered allowed the jury to convict defendant on all three assault charges with less than the specific intent to murder.\\nThe court instructed the jury as follows:\\nThe next offense that I will instruct you on is what is called assault with intent to murder. And that applies to Count iv, as to Barbara Anderson; vii, Alpha Breed; and vm, Ladale Woods.\\nIn each of those Counts, the Defendant is charged with the crime of assault with intent to murder. Any person who shall assault another with the intent to commit the crime of murder is guilty of this crime. The Defendant pleads not guilty to the charge in each of those Counts.\\nTo establish this charge, the prosecution must prove each of the following elements beyond a reasonable doubt.\\nFirst, that the Defendant tried to physically injure another person.\\nSecond, that he had the present ability to cause an injury, or at least believed that he had the present ability.\\nThird, that at the time he committed the assault, the Defendant intended to kill the complainant under circumstances that did not justify, excuse or mitigate the crime.\\nThe crime of assault with intent to murder cannot occur if the assault took place under circumstances which, had the person died, would have reduced the charge to manslaughter.\\nThe crime of murder is reduced to manslaughter if the killing was committed under the influence of passion or in heat of blood produced by an adequate provocation, and before a reasonable time has elapsed for the blood to cool.\\nIf you find that the crime would have been manslaughter had death resulted, then you must find the defendant not guilty of assault with intent to murder.\\nNow, as I have told you, these offenses, each and every one of them, including even the carrying of a firearm, is what we call a specific intent offense. The crimes charged in this case require proof of a specific intent before a Defendant can be convicted.\\nThe Defendant must have had more than just the intent to do certain physical acts. He must have done those acts with the desire or knowledge that a certain unlawful result would occur.\\nAs to assault with intent to murder, he must have intended either that the person be in fear of being murdered or that he intended to put that person in fear of being murdered.\\nAs to assault with intent to murder, there must be the intent either to put the person in fear of being murdered or intent to murder the individual.\\nHere, after properly instructing the jury on all the essential elements of an assault with intent to murder, the trial court erroneously instructed the jury that either an intent to murder or an intent to place the victim in fear of being murdered was sufficient to find defendant guilty of the assaults upon Barbara Anderson, Officer Ladale Woods and Alpha Breed. A defendant is guilty of assault with intent to murder only if there is an actual intent to kill.\\nWhile the jury instructions must be read as a whole and may not be extracted piecemeal in an effort to establish error requiring reversal, we believe that the court's instructions were misleading. The instructions may have permitted the jury to convict defendant of the assaults on less than the required intent to murder. Consequently, we reverse and remand for a new trial defendant's convictions of three counts of assault with intent to murder.\\nOtherwise, we affirm defendant's convictions and sentences for conspiracy to commit first-degree murder and arson, arson, breaking and entering with intent to commit murder, two counts of first-degree murder and felony firearm.\\nAffirmed in part, and reversed and remanded in part._\\nMRE 401.\\nPeople v Van Sickle, 116 Mich App 632, 636; 323 NW2d 314 (1982).\\nPeople v Philip Drake, 142 Mich App 357; 370 NW2d 355 (1985).\\nPeople v Tobey, 401 Mich 141,153; 257 NW2d 537 (1977).\\nMRE 401, MRE 402.\\nPeople v Bairefoot, 117 Mich App 225, 228; 323 NW2d 302 (1982).\\nPeople v Callington, 123 Mich App 301, 305; 333 NW2d 260 (1983).\\nPeople v Lambert, 395 Mich 296, 304; 235 NW2d 338 (1975); People v Barr, 156 Mich App 450, 463; 402 NW2d 489 (1986); People v Stokes, 134 Mich App 146, 150; 350 NW2d 767 (1984). Contra, People v Watts, 149 Mich App 502, 515; 386 NW2d 565 (1986), lv den 425 Mich 885 (1986); People v Kohler, 113 Mich App 594, 599; 318 NW2d 481 (1981).\\nPeople v Guy Taylor, 422 Mich 554, 567; 374 NW2d 1 (1985).\\nPeople v Wesley, 148 Mich App 758, 761; 384 NW2d 783 (1985), lv gtd 425 Mich 872 (1986) (sentencing issue).\"}" \ No newline at end of file diff --git a/mich/2300499.json b/mich/2300499.json new file mode 100644 index 0000000000000000000000000000000000000000..1edc88c48d22887257e7090eaa9fa9d124d9aa26 --- /dev/null +++ b/mich/2300499.json @@ -0,0 +1 @@ +"{\"id\": \"2300499\", \"name\": \"HAYES v. EMERICK\", \"name_abbreviation\": \"Hayes v. Emerick\", \"decision_date\": \"1987-09-14\", \"docket_number\": \"Docket No. 90355\", \"first_page\": \"138\", \"last_page\": \"142\", \"citations\": \"164 Mich. App. 138\", \"volume\": \"164\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T21:23:34.927845+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Wahls, P.J., and R. M. Maher and J. T. Kallman, JJ.\", \"parties\": \"HAYES v EMERICK\", \"head_matter\": \"HAYES v EMERICK\\nDocket No. 90355.\\nSubmitted March 24, 1987, at Detroit.\\nDecided September 14, 1987.\\nLeave to appeal applied for.\\nSteven R. Hayes brought a medical malpractice action in Ma-comb Circuit Court against Myron R. Emerick, D.O., arising from treatment Hayes received from Emerick while Hayes was an inmate of the Macomb County Jail. Emerick provided medical services to Macomb County Jail inmates pursuant to an agreement with Macomb County and received compensation on an \\\"individual fee for service\\u201d basis. The trial court, Lawrence P. Zatkoff, J., granted summary disposition in favor of defendant, ruling that defendant was an agent of Macomb County and that plaintiff\\u2019s claim was barred by governmental immunity. Plaintiff appealed.\\nThe Court of Appeals held:\\n1. Macomb County is obligated by law to provide medical services to inmates of its jail and defendant was acting on behalf of the county in treating plaintiff. The trial court properly ruled that defendant, as an agent of the county, was entitled to governmental immunity from tort liability.\\n2. Summary disposition was not granted prematurely and a remand for further discovery is not necessary since plaintiff failed to persuade the Court of Appeals that discovery was incomplete.\\nAffirmed.\\n1. Governmental Immunity \\u2014 Lower-Level Officials, Employees and Agents \\u2014 Tort Liability.\\nLower-level governmental officials, employees and agents are immune from tort liability only when they are: (1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority; (2) acting in good faith; and (3) performing discretionary, as _opposed to ministerial, acts._\\nReferences\\nAm Jur 2d, States, Territories, and Dependencies \\u00a7\\u00a799 et seq.; \\u00a7104.\\nState\\u2019s immunity from tort liability as dependent on governmental or proprietary nature of function. 40 ALR2d 927.\\n2. Governmental Immunity \\u2014 Tort Liability.\\nA physician who, under the terms of an agreement with a county, is obligated to provide medical services to inmates of the county\\u2019s jail on an \\\"individual fee for service\\u201d basis may properly claim governmental immunity from tort liability as an agent of the county in a medical malpractice action brought by a treated inmate.\\nBecker & Van Cleef, P.C. (by Robert Van Cleef), for plaintiff.\\nMacArthur, Cheatham, Acker & Smith, P.C. (by James G. Gross), for defendant.\\nBefore: Wahls, P.J., and R. M. Maher and J. T. Kallman, JJ.\\nCircuit judge, sitting on the Court of Appeals by assignment.\", \"word_count\": \"1159\", \"char_count\": \"7190\", \"text\": \"Per Curiam.\\nOn June 9, 1983, plaintiff, Steven Russell Hayes, filed a medical malpractice lawsuit against defendant, Myron R. Emerick, D.O. On January 8, 1986, defendant's motion for summary disposition based upon governmental immunity was granted by the trial court. Plaintiff appeals as of right.\\nPlaintiff claims two errors on appeal, alleging that (1) the trial court erred when it granted summary disposition in favor of defendant on the ground that defendant was an agent of Macomb County, and (2) either the trial court erred in granting summary disposition since discovery was incomplete or plaintiff should be allowed an opportunity on remand to conduct further discovery on the issue of defendant's status as an independent contractor.\\nMacomb County Jail employed defendant to provide medical care to the inmates. While plaintiff was an inmate of the jail, he was examined by defendant. Plaintiff's complaint set forth in a med ical malpractice action in which he asserted a claim of negligence against the defendant.\\nIn discussing individual immunity in Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 592; 363 NW2d 641 (1984), the Supreme Court stated:\\nLower level officers, employees, and agents are immune from tort liability only when they are (a) acting during the course of their employment and are acting, or reasonably believe they are acting, within the scope of their authority; (b) acting in good faith; and (c) performing discretionary-decisional, as opposed to ministerial-operational, acts.\\nPlaintiff argues that defendant was not a \\\"lower level officer, employee or agent,\\\" but rather was an independent contractor. The trial court found that the defendant was an agent entitled to governmental immunity. The defendant argues on appeal that he was either an agent or an employee.\\nIn Ross, supra, 420 Mich 624, n 38, the Supreme Court noted that \\\"the individual tortfeasor's status as an employee, agent, independent contractor, etc., . . . will generally be determined with reference to common-law tort and agency principles.\\\" Therefore, general principles of agency law must be examined. In Goldman v Cohen, 123 Mich App 224, 228-230; 333 NW2d 228 (1983), lv den 422 Mich 865 (1985), this Court reiterated the definition of the term \\\"agent\\\" found in Stephenson v Golden, 279 Mich 710, 734-735; 276 NW 849 (1937):\\n\\\" 'An agent is a person having express or implied authority to represent or act on behalf of another person, who is called his principal.' Bow-stead on Agency (4th ed), 1.\\n\\\" 'An agent is one who acts for or in the place of another by authority from him; one who undertakes to transact some business or manage some affairs for another by authority and on account of the latter, and to render an account of it. He is a substitute, a deputy, appointed by the principal, with power to do the things which the principal may or can do.' 2 CJS 1025.\\n\\\"The term 'agent' includes factors, brokers, etc. 2 CJS 1025.\\n\\\"As said in Saums v Parfet, 270 Mich 165; 258 NW 235 (1935):\\n\\\" ' \\\"Agency\\\" in its broadest sense includes every relation in which one person acts for or represents another by his authority.' 2 CJ 419.\\n\\\"' \\\"Whether an agency has been created is to be determined by the relations of the parties as they in fact exist under their agreements or acts.\\\" 21 RCL 819.' \\\"\\nThis Court is satisfied that defendant was an agent of Macomb County. The county was obligated by law to provide medical services to the inmates of its jail pursuant to MCL 791.262(f)(3); MSA 28.2322(f)(3). In order to fulfill this obligation, Macomb County contracted with defendant to provide medical care to the jail residents on the county's behalf. If defendant did not provide such services, Macomb County would be forced to retain another physician in order to meet its legal obligations. Although the defendant provided the services on an \\\"individual fee-for-service basis,\\\" he was employed on an ongoing basis. Defendant did not maintain a personal patient clientele at the county jail; rather, his work with the inmates was due solely to his contract with Macomb County to render such services. As in Goldman, defendant was acting on behalf of his principal, in this case, Macomb County, and therefore was its agent.\\nThis Court is satisfied that summary disposition was not granted prematurely and that a remand for further discovery is not necessary. Discovery was closed in this case in early November, 1984. The motion for summary disposition was not granted until January, 1986. Plaintiff did not argue at that time that further discovery was necessary. Plaintiff has failed to persuade this Court that discovery was incomplete.\\nAffirmed.\"}" \ No newline at end of file diff --git a/mich/2304847.json b/mich/2304847.json new file mode 100644 index 0000000000000000000000000000000000000000..9dab18695fe96c4e0c628397e4588a69849381e0 --- /dev/null +++ b/mich/2304847.json @@ -0,0 +1 @@ +"{\"id\": \"2304847\", \"name\": \"PEOPLE v. THINEL\", \"name_abbreviation\": \"People v. Thinel\", \"decision_date\": \"1987-06-01\", \"docket_number\": \"Docket No. 80789\", \"first_page\": \"450\", \"last_page\": \"460\", \"citations\": \"160 Mich. App. 450\", \"volume\": \"160\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T17:13:10.991819+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Hood, P.J., and Beasley and L. Townsend, JJ.\", \"parties\": \"PEOPLE v THINEL\", \"head_matter\": \"PEOPLE v THINEL\\nDocket No. 80789.\\nSubmitted January 6, 1987, at Lansing.\\nDecided June 1, 1987.\\nLeave to appeal applied for.\\nPaul E. Thinel was convicted of involuntary manslaughter by a jury in Oakland Circuit Court following the death of Carla J. Anderson in an accident wherein defendant allegedly drove while intoxicated and steered his automobile into the path of Anderson\\u2019s oncoming automobile. The trial court, Hilda R. Gage, J., sentenced defendant to from seven to fifteen years in prison. The Court of Appeals granted defendant\\u2019s delayed application for appeal, but denied a motion for remand to the trial court for consideration whether the verdict was against the great weight of the evidence. On appeal to the Supreme Court, that Court, in lieu of granting leave, reversed the Court of Appeals denial and ordered the case remanded to the trial court. 424 Mich 858 (1985). The trial court subsequently denied defendant\\u2019s motion for a new trial and defendant once again appealed.\\nThe Court of Appeals held:\\n1. The trial court precluded the jury from determining all elements of the charge against defendant by instructing the jury that \\\"it is gross and culpable negligence for an intoxicated person to guide and operate an automobile upon a public highway.\\u201d Despite overwhelming evidence indicating gross and _culpable negligence, it was nonetheless for the jury to deter mine whether defendant was grossly negligent so as to be guilty of manslaughter.\\nReferences\\nAm Jur 2d, Appeal and Error \\u00a7\\u00a7 778, 815.\\nAm Jur 2d, Automobiles and Highway Traffic \\u00a7\\u00a7 305-307, 377, 378, 383, 384.\\nAm Jur 2d, Homicide \\u00a7\\u00a7 54 et seq.\\nConstruction and application of statutes creating presumption or other inference of intoxication from specified percentages of alcohol present in system. 16 ALR3d 748.\\nValidity of legislation creating presumption of intoxication or the like from presence of specified percentage of alcohol in blood. 46 ALR2d 1176.\\nSee also the annotations in the Index to Annotations under Harmless and Prejudicial Error; Manslaughter.\\n2. Evidence of defendant\\u2019s 0.23 percent blood-alcohol level obtained under a search warrant was, pursuant to MCL' 257.625a; MSA 9.2325(1), properly ruled admissible and gave rise to a presumption that defendant was operating a motor vehicle while under the influence of intoxicating liquor.\\nReversed and remanded for a new trial.\\n1. Homicide \\u2014 Manslaughter \\u2014 Gross Negligence.\\nIn order to support a charge of manslaughter, three necessary elements must be found: (1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; and (3) the omission to use such care and diligence to avert the threatened danger when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.\\n2. Criminal Law \\u2014 Jury Instructions \\u2014 Elements of Crime \\u2014 Harmless Error Rule.\\nAn instruction to the jury that an essential element of a criminal offense exists as a matter of law is error requiring reversal; the right of the jury to determine all elements of an offense is so fundamental a right that the harmless error rule is not appropriate where the judge invades that province.\\n3. Criminal Law \\u2014 Evidence \\u2014 Blood-Alcohol Level.\\nThe amount of alcohol in a driver\\u2019s blood, as shown by chemical analysis, may be admitted into evidence in criminal prosecutions for several offenses including felonious driving, negligent homicide, or manslaughter resulting from the operation of a motor vehicle while the driver is alleged to have been impaired by or under the influence of intoxicating liquor or a controlled substance or a combination of intoxicating liquor and a controlled substance, or to have had a blood-alcohol content of 0.10 percent or more by weight of alcohol (MCL 257.625a[l][b]; MSA 9.2325[l][l][b]).\\nFrank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief, Appellate Division, and Graham K Crabtree, Assistant Prosecuting Attorney, for the people.\\nPatrick J. Brennan, for defendant on appeal.\\nBefore: Hood, P.J., and Beasley and L. Townsend, JJ.\\nRecorder\\u2019s Court judge, sitting on the Court of Appeals by assignment.\", \"word_count\": \"3035\", \"char_count\": \"18557\", \"text\": \"Per Curiam.\\nDefendant was convicted by a jury of involuntary manslaughter, MCL 750.321; MSA 28.553, in the vehicular death of Carla Jean Anderson and was sentenced to from seven to fifteen years in prison. After granting his delayed application for leave to appeal, this Court denied his motion to remand for a determination of whether the verdict was against the great weight of the evidence. Subsequently, our Supreme Court, in lieu of granting leave, reversed this denial and ordered this Court to remand to the trial court in order to hear defendant's claim. People v Thinel, 424 Mich 858 (1985). Retaining jurisdiction, this Court remanded to the circuit court which, following argument, denied defendant's new trial motion. Defendant now appeals raising several claims of error, one of which we find compels us to reverse.\\nTrial testimony showed that the victim was killed when defendant attempted to make a left turn and struck Anderson's oncoming vehicle. Witnesses testified that defendant was drunk and became abusive at the accident scene with fire department personnel, pushing them around. He had very bloodshot and glassy eyes, was incoherent in his speech, staggered and smelled very strongly of alcohol.\\nThe arresting officer testified that defendant was unable to locate the papers for the car, yet another officer easily found them in the glove box. The arresting officer smelled intoxicants in the defendant's car and defendant was unsteady on his feet. Further, defendant was abusive and thought he was registering for classes when he was at the police station. Defendant was visibly upset about his car being smashed but did not know how it happened.\\nThe other officer could also detect a strong odor of alcohol on defendant's breath. In addition, defendant's eyes were bloodshot and watery and defendant was staggering and incoherent. The emergency medical technician at Beaumont Hospital, where defendant was taken, testified that defendant smelled of alcohol, had dilated pupils, slurred his speech, weaved back and forth as he sat on the stretcher and called him and the police officers obscene names.\\nHerbert Wetherell, a Michigan State Police toxicologist, testified that defendant's blood contained 0.23 percent weight by volume of ethyl alcohol. Wetherell stated that such an amount would cause moderate to severe depression of the nervous system to the point of inability to adequately control fine muscle movement or make good judgmental decisions. Such a person would exhibit slurred speech, close to double vision and some degree of uncoordination. Conducting simultaneous tasks such as making an observation with one's peripheral vision while coordinating reflex movements such as moving the foot from the accelerator to the brake while activating a turn signal would be impaired.\\nDefendant, eighteen years old on the date of the accident, testified that he had been at a party earlier in the evening and had drunk beer and mixed drinks made with whiskey, but could not remember how much. Defendant left the party between 10:00 and 10:30 p.m., dropped off a friend, and proceeded onto northbound Rochester Road. Defendant felt that he was in sufficient control of himself to drive an automobile and saw Ms. An derson's car when he attempted the left turn but thought there was enough time to complete the turn. Defendant said that her car came faster than he thought it would.\\nIn her jury instructions on involuntary manslaughter and gross negligence, the trial judge stated:\\nThe Defendant is charged with the crime of involuntary manslaughter, in operating his motor vehicle in such a manner as to cause the death of Carla Jean Anderson.\\nA person commits the crime of manslaughter if, in doing the acts which caused the death, he acts with an unreasonable disregard for human life; that is, if he commits an act which is grossly negligent of human life.\\nThe defendant pleads'not guilty to this charge.\\nTo establish this charge, the prosecution must prove each of the following elements beyond a reasonable doubt.\\nFirst, that the Defendant was operating a motor vehicle, on or about December 23rd, 1983, at Rochester Road at Woodside, in the City of Royal Oak.\\nSecond, that he was grossly negligent in the operation of his vehicle; that is, he operated his vehicle while under the in\\u00f1uence of intoxicating liquor and turned left in the path of the victim's vehicle.\\nThird, that the Defendant's gross negligence was the cause of an accident resulting in injuries to Carla Jean Anderson.\\nFourth, that such injury was the cause of death.\\nGross negligence means more than carelessness. It means willful, wanton and reckless disregard of the consequences which might follow, from a failure to act, and indifference to the rights of others.\\nIn order to find that the Defendant was guilty of gross negligence, you must first find \\u2014 you must find beyond a reasonable doubt:\\nFirst, that the Defendant knew of the danger to another; that is, that this was [a] situation requiring ordinary care and diligence, to avoid injuring another.\\nSecond, that the Defendant had the ability to avoid harm to another, by exercise of such ordinary care.\\nThird, that the Defendant failed to use such care and diligence to prevent the threatened danger when, to the ordinary mind, it might have been apparent that the result was likely to cause serious harm to another.\\nThe operation of a motor vehicle inherently requires the exercise of ordinary care and diligence to avert injury to others. It is gross and culpable negligence for an intoxicated person to guide and operate an automobile upon a public highway.\\nThe trial court's jury instruction on gross negligence was error which requires reversal. The trial judge told the jury in this instruction that it was gross negligence to operate a motor vehicle while intoxicated. Despite the fact that the evidence of defendant's gross and culpable negligence was overwhelming, the determination of that fact should have been left to the jury. The failure to permit the jury to make the critical determination as to whether defendant's conduct amounted to gross negligence requires reversal and a new trial.\\nThe prosecution argues that the gross negligence instruction in this case was properly based upon People v Pittinger, 105 Mich App 736, 740-741; 307 NW2d 715 (1981), and People v Townsend, 214 Mich 267, 273; 183 NW 177 (1921). In Pittinger, this Court quoted Townsend for the proposition that it is gross and culpable negligence to drive an automobile while intoxicated. Pittinger was a case wherein defendant pled nolo contendere to an involuntary manslaughter charge and the Court determined that one could infer from the evidence at the preliminary examination that defendant was driving while intoxicated when the accident occurred and that such inference permits a finding of gross negligence on the part of defendant. The Pittinger Court also concluded that the operation of a motor vehicle inherently requires the exercise of ordinary care and diligence to avoid injury to others and that such exercise must be made in the form of a decision not to drive when intoxicated.\\nIn People v Florida, 61 Mich App 653, 658; 233 NW2d 127 (1975), this Court considered the trial court's jury instructions on gross negligence in an involuntary manslaughter case. The Court held that the element of gross negligence takes the place of the intent element, citing People v Campbell, 237 Mich 424, 428; 212 NW 97 (1927). The Florida Court went on to find that the trial court had failed to properly instruct the jury on the elements of involuntary manslaughter due to its erroneous definition of gross negligence. The Court held:\\nThe trial court failed to properly define gross negligence, and we find that defendant's right to have the jury properly instructed upon the elements of the crime was abridged. People v Liggett, 378 Mich 706, 714; 148 NW2d 784, 788 (1967). Therefore, we must reverse defendant's conviction and remand for a new trial. [61 Mich App 660.]\\nThe proper definition of gross negligence which is sufficient to support a conviction for involuntary manslaughter was recited in People v Jackson, 140 Mich App 283, 285; 364 NW2d 310 (1985), lv den 423 Mich 859 (1985), quoting People v Orr, 243 Mich 300, 307; 220 NW2d 777 (1928):\\n(1) Knowledge of a situation requiring the exer cise of ordinary care and diligence to avert injury to another.\\n(2) Ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand.\\n(3) The omission to use such care and diligence to avert the threatened danger when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.\\nIn People v Reed, 393 Mich 342, 349, 351; 224 NW2d 867 (1975), cert den 422 US 1044, 1048 (1975), the Supreme Court held:\\nOnce a plea of not guilty is entered, the defendant \\\"has an absolute right to a jury determination upon all essential elements of the offense. This right, emanating from the criminal defendant's constitutional right to a trial by jury, is neither depleted nor diminished by what otherwise might be considered the conclusive or compelling nature of the evidence against him. . . . [Furthermore, in a situation wherein an understandingly tendered waiver is not forthcoming from the defendant, under no circumstances may the trial court usurp this right by ruling as a matter of law on the essential element of the crime charged.\\\" United States v England, 347 F2d 425, 430 (CA 7, 1965). (Footnote omitted).\\nWe find that the right of the jury to determine all elements of an offense is so fundamental a right that the harmless error rule is not appropriate where the judge invades that province. There is a difference between commenting on the evidence and making a finding of fact for the jury. When the trial judge, as in the instant case, instructs that an essential element of a criminal offense exists, as a matter of law, we will find reversible error.\\nGenerally, jury instructions are to be viewed in their entirety to determine if any error requiring reversal occurred. People v Bender, 124 Mich App 572, 574; 335 NW2d 85 (1983). A failure to object to jury instructions which remove a factual element from the jury does not abrogate on appeal the defendant's right to have the jury properly instructed. People v Allensworth, 401 Mich 67, 70; 257 NW2d 81 (1977), cert den 435 US 933 (1978); People v Florida, supra, 660.\\nIt appears that Pittinger, supra, and Townsend, supra, have determined that once there is a finding that defendant caused an accident by driving while intoxicated, a finding of gross negligence is required as a matter of law. However, Reed, supra, 349, holds that all essential elements of the offense must go to \\u00e1 jury in a criminal case where the defendant pleads not guilty. The defendant in Pittinger, supra, pled nolo contendere in the trial court so that the circuit court judge could properly make his own determination of gross negligence from the evidence of intoxication presented at the preliminary examination. People v Pittinger, supra, 738, 740. However, in the case at bar, defendant stood mute at arraignment \\u00e1nd a not guilty plea was entered on his behalf. Defendant herein then faced a jury trial, and therefore the present case is distinguishable from Pittinger.\\nHere, the jury was not allowed to determine the three factors which must be shown to prove gross negligence, as outlined in Jackson, supra. Consequently, the jury was not properly instructed. Because under Reed, supra, the harmless error rule does not apply in a situation such as this, we are constrained to reverse.\\nWe briefly address and reject defendant's argument that because defendant's blood-alcohol level was taken pursuant to a search warrant, the statutory presumption in the implied consent statute, MCL 257.625a; MSA 9.2325(1), that he was intoxicated and the jury instructions to that effect were inapplicable. While defendant relies upon People v Hempstead, 144 Mich App 348; 375 NW2d 445 (1985), where two judges held that the implied consent statute did not apply where a search warrant was utilized to obtain a blood sample for a blood-alcohol test since there was no reliance on the implied consent statute by defendant, the hospital personnel or police, we find the Hempstead analysis inapplicable. The majority's analysis in Hempstead only seems appropriate when read in light of the old statutory provisions of the implied consent statute, which was extensively amended between 1979 and 1983, particularly in 1981 and 1983. The old provisions, which were construed in People v Keen, 396 Mich 573; 242 NW2d 405 (1976), and McNitt v Citco Drilling Co, 397 Mich 384; 245 NW2d 18 (1976), did not statutorily limit the use of the statutory presumptions to criminal prosecutions, as does the currently effective MCL 257.625a(l); MSA 9.2325(1X1).\\nUnlike the old provisions, the current statute provides that the amount of alcohol in a driver's blood, as shown by chemical analysis, may be admitted into evidence in criminal prosecutions for several offenses, including the following:\\n(b) Felonious driving, negligent homicide, or manslaughter resulting from the operation of a motor vehicle while the driver is alleged to have been impaired by or under the influence of intoxicating liquor or a controlled substance or a combination of intoxicating liquor and a controlled substance, or to have had a blood alcohol content of 0.10% or more by weight of alcohol. [MCL 257.625a(l)(b); MSA 9.2325(l)(l)(b).]\\nMoreover, the current \\u00a7 625d, MCL 257.625d; MSA 9.2325(4), allows a blood sample to be taken in the absence of consent by court order. Consequently, the issue of consent does not appear to be controlling under the currently effective implied consent statute. Accordingly, as to the issue whether a statutory presumption of intoxication applies to a case where the blood sample was obtained by search warrant, we decline to follow Hempstead.\\nBecause we find that reversal is mandated based on the court's erroneous jury instruction on gross negligence, we need not consider defendant's other issues. Defendant's conviction is reversed and the case is remanded for a new trial.\"}" \ No newline at end of file diff --git a/mich/2304923.json b/mich/2304923.json new file mode 100644 index 0000000000000000000000000000000000000000..3423fd3ac67523ac9a6bca1334f7f386a5ea1be8 --- /dev/null +++ b/mich/2304923.json @@ -0,0 +1 @@ +"{\"id\": \"2304923\", \"name\": \"HUBER v. FRANKENMUTH MUTUAL INSURANCE COMPANY\", \"name_abbreviation\": \"Huber v. Frankenmuth Mutual Insurance\", \"decision_date\": \"1987-06-02\", \"docket_number\": \"Docket No. 86577\", \"first_page\": \"568\", \"last_page\": \"579\", \"citations\": \"160 Mich. App. 568\", \"volume\": \"160\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T17:13:10.991819+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Shepherd, P.J., and Wahls and Sullivan, JJ.\", \"parties\": \"HUBER v FRANKENMUTH MUTUAL INSURANCE COMPANY\", \"head_matter\": \"HUBER v FRANKENMUTH MUTUAL INSURANCE COMPANY\\nDocket No. 86577.\\nSubmitted November 18, 1986, at Detroit.\\nDecided June 2, 1987.\\nVictor Huber was injured in an automobile accident while in the course of his employment. The vehicle he was driving was owned by him and leased to his employer, Branch Motor Express. His personal insurer was Frankenmuth Mutual Insurance Company and his employer was self-insured. Huber brought an action in the Wayne Circuit Court against Frankenmuth and Branch Motor for wage-loss benefits. During discovery, Branch Motor admitted that, under the no-fault act, it was the first-priority insurer. The court granted summary judgment for Frankenmuth and partial summary judgment to plaintiff against Branch Motor, and the case proceeded to mediation. When the case was evaluated at less than $10,000, the court remanded to the district court. Thereafter the federal bankruptcy court stayed all proceedings regarding Branch Motor. Plaintiff moved the district court to reinstate Frankenmuth as a party and the motion was granted. Frankenmuth moved to set aside the order, which motion was granted on the belief of the district judge that he had no power to modify a circuit court order. Plaintiff appealed to the circuit court, which dismissed the appeal, Richard P. Hathaway, J. Plaintiff appealed.\\nThe Court of Appeals held:\\n1. A district court has the authority to modify earlier circuit court orders in cases which have been removed to the district court due to lack of subject-matter jurisdiction in the circuit court.\\n2. Failure of the court to allow the reinstatement of Frankenmuth as a party was an abuse of discretion since the circumstances had changed and Branch Motor had become uncollectable.\\n3. The employer-employee priority provisions regarding the payment of personal injury protection insurance benefits contained in the no-fault insurance act apply only to motor vehicles owned or registered by the employer. A trip-lease arrangement, whereby the employee-owner of the vehicle leases the vehicle to the employer, who in turn insures the vehicle and authorizes the employee to use the vehicle in the course of his employment, is not equal to ownership for purposes of the employer-employee priority provisions. Frankenmuth is the next priority insurer under the circumstances.\\nReferences\\nAm Jur 2d, Auto Insurance \\u00a7 227.\\nAm Jur 2d, Courts \\u00a7 97.\\nAm Jur 2d, Judgments \\u00a7\\u00a7 679, 681.\\nValidity and construction of \\\"no-fault\\u201d automobile insurance plans. 42 ALR3d 229.\\nRemanded.\\n1. Courts \\u2014 Modification of Judgments \\u2014 District Courts \\u2014 Court Rules.\\nA district court has the authority to modify earlier circuit court orders in cases which have been removed to the district court due to lack of subject-matter jurisdiction in the circuit court (MCR 2.227, 2.613[B]).\\n2. Appeal \\u2014 Preserving Question.\\nThe Court of Appeals will generally not review an issue which was not raised and decided by the trial court; however, it will review such an issue in order to insure that a miscarriage of justice will not occur.\\n3. Judgments \\u2014 Modification of Judgments \\u2014 Court Rules.\\nThe policy behind the rule requiring litigants attempting to correct errors in judgments or orders to appear before the judge who made the judgment or order is that the original judge is best qualified to rule on the matter; in addition, such a rule tends to preserve the dignity and stability of judicial action by preventing unhappy litigants from turning to other judges to have the judgment reversed and by preventing judge shopping \\u25a0 (MCR 2.613[B]).\\n4. Judgments \\u2014 Relief from Judgments \\u2014 Appeal \\u2014 Court Rules.\\nA decision to grant relief from a judgment pursuant to the court rule allowing such relief is discretionary with the trial court and will not be disturbed absent an abuse of discretion (MCR 2.612[c][lj).\\n5. Insurance \\u2014 No-Fault \\u2014 Employer-Employee Priority \\u2014 Trip-Lease.\\nThe employer-employee priority provisions regarding the payment of personal injury protection insurance benefits contained in the no-fault insurance act apply only to motor vehicles owned or registered by the employer; a trip-lease arrangement, whereby the employee-owner of the vehicle leases the vehicle to the employer, who in turn insures the vehicle and authorizes the employee to use the vehicle in the course of his employment, is not equal to ownership for purposes of the employer-employee priority provisions.\\nHoffa, Chodak & Robiner (by Kevin O\\u2019Neill and Wayne A. Rudell), for plaintiff.\\nKohl, Secrest, Wardle, Lynch, Clark & Hampton (by Michael L. Updike), for defendant.\\nBefore: Shepherd, P.J., and Wahls and Sullivan, JJ.\", \"word_count\": \"3260\", \"char_count\": \"19851\", \"text\": \"Wahls, J.\\nPlaintiff, Victor Huber, appeals as of right from a Wayne Circuit Court order denying a motion to modify an earlier order of that court. The earlier order had granted summary judgment to defendant Frankenmuth Mutual Insurance Company.. Plaintiff sought the modification of the earlier order after defendant Branch Motor Express filed for bankruptcy, which resulted in an order from a bankruptcy court staying all proceedings in the state court action regarding Branch Motor.\\nThe underlying facts are not in material dispute. Plaintiff was involved in a motor vehicle accident on January 5, 1981, while in the course of his employment as a driver. The truck he was driving was insured by his employer, Branch Motor, and by his own personal motor vehicle insurer, Frankenmuth. Initially, both defendants paid plaintiff wage-loss benefits. When benefits were terminated, plaintiff commenced the instant suit in circuit court.\\nDuring discovery, Branch Motor admitted that, under the no-fault act, it was the first-priority insurer. Thereafter, Frankenmuth moved for sum mary judgment based on Branch Motor's admission that it was the first-priority insurer. Plaintiff opposed the motion, contending that the priorities under the no-fault act could not be admitted as a matter of law and that future events might indicate that Frankenmuth, and not Branch Motor, was the proper insurer with priority. Simultaneously, plaintiff moved for partial summary judgment against Branch Motor based on its admission that it was the proper priority insurer. Circuit Judge Irwin Burdick granted partial summary judgment to plaintiff and summary judgment to Frankenmuth, and the case proceeded to mediation.\\nSince it was evaluated at less than $10,000, Judge Burdick remanded the case to district court. At that time, plaintiff learned that Branch Motor had commenced bankruptcy proceedings. The bankruptcy court issued a stay of all proceedings regarding Branch Motor. Realizing that Branch Motor might be uncollectable, plaintiff filed a motion in district court to reinstate Frankenmuth as a party defendant. Frankenmuth failed to appear at the hearing on that motion and filed no objections. The motion was granted by District Court Judge Frederick E. Byrd on November 28, 1984.\\nApproximately one month later, Frankenmuth moved to set aside the November 28, 1984, order. In an order dated March 18, 1985, Judge Byrd amended the November 28, 1984, order by deleting that portion of his former order which had reinstated Frankenmuth. Apparently, Judge Byrd believed that he was unable to modify a circuit court order. In response, plaintiff went back to circuit court and filed a motion requesting relief from Judge Burdick's order dismissing Frankenmuth. The motion was heard and denied by Judge Richard P. Hathaway. Plaintiff then filed an appeal of the district court's refusal to reinstate Frankenmuth as a party defendant. That appeal was dismissed by Judge Hathaway.\\nPlaintiff now appeals from Judge Hathaway's denial of plaintiff's motion to modify the original circuit court order dismissing Frankenmuth.\\nPlaintiff raises three issues. The first issue deals with procedure and is of first impression. We must decide if, once a case is removed from th\\u00e9 circuit court to the district court, the district court has authority to modify preremoval circuit court orders. We hold that a district court has the authority to modify an earlier circuit court order in a case which has been removed to the district court due to lack of jurisdiction in the circuit court.\\nPlaintiff failed to raise this issue below. Generally, this Court will not review an issue which was not raised and decided by the triai court. MCR 7.203; American Way Service Corp v Ins Comm'r, 113 Mich App 423, 428; 317 NW2d 870 (1982). However, we will review such an issue in order to insure that a miscarriage of justice will not occur. Id.\\nAt issue here is MCR 2.613(B), which deals with the power to set aside a judgment, and MCR 2.227, which addresses the transfer of cases due to lack of jurisdiction.\\nMCR 2.613(B) provides:\\n(B) Correction of Error by Other Judges. A judgment or order may be set aside or vacated, and a proceeding under a judgment or order may be stayed, only by the judge who entered the judgment or order, unless that judge is absent or unable to act. If the judge who entered the judgment or order is absent or unable to act, an order vacating or setting aside the judgment or order or staying proceedings under the judgment or order may be entered by a judge otherwise empowered to rule in the matter. [Emphasis added.]\\nThe predecessor to MCR 2.613(B) was GCR 1963, 529.2:\\n2. Correction of Error by Other Judges. No judgment or order shall be set aside or vacated, and no proceeding under a judgment or order shall be stayed by any circuit judge except the one who made the judgment or order, unless he is absent or unable to act. If the circuit judge who made the judgment or order is absent or unable to act, an order vacating or setting aside the judgment or order or staying proceedings under the judgment or order may be made by any of the other judges of the circuit or any judge assigned to the circuit. [Emphasis added.]\\nThe policy behind the rule requiring litigants to appear before the judge who made the judgment or order is that the original judge is best qualified to rule on the matter. 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), Rule 529, Comment 7, p 230. In addition, such a rule tends to preserve the dignity and stability of judicial action by preventing unhappy litigants from turning to other trial judges to have the judgment \\\"reversed\\\" and by preventing \\\"judge shopping.\\\" Id. However, the old rule further provided that, if the judge who originally entered the judgment or order was absent or unable to act, action could be taken by any of the other judges of the circuit or by any judge assigned to the circuit.\\nThe new rule is basically the same as its predecessor in that it gives primary jurisdiction to the original judge. 3 Martin, Dean & Webster, Michigan Court Rules Practice, Rule 2.613, Comment 5, p 574. The only difference in the new rule is that, instead of stating that a judge of the same circuit may act as a substitute when necessary, it states that \\\"a judge otherwise empowered to rule in the matter\\\" may act as a substitute. That is, a judge who would have been qualified to hear the case initially may act as a substitute for the original judge. Usually, this rule is used to empower a subsequent judge of the same level as the initial judge to hear the case. However, there are occasions when a judge of a different level will be authorized to pass decision on a case. The most common instance is when a lower court judge is sitting by assignment. In that case, the lower court judge is treated as if he or she is a judge of the higher court.\\nHere, we have a different twist. The case was originally brought in circuit court and then sent down to district court. Thus, the second judge was neither from, nor acting at, the same level as the first judge. The question in this case then is whether the second judge was \\\"empowered\\\" to rule on the matter before him.\\nOf significance is MCR 2.227, which provides for the transfer of a case and the conferring of jurisdiction on another court. That rule states:\\n(A) Transfer to Court Which Has Jurisdiction.\\n(1) When the court in which a civil action is pending determines that it lacks jurisdiction of the subject matter of the action, but that some other Michigan court would have jurisdiction of the action, the court may order the action transferred to the other court in a place where venue would be proper. If the question of jurisdiction is raised by the court on its own initiative, the action may not be transferred until the parties are given notice and an opportunity to be heard on the jurisdictional issue.\\n(B) Procedure After Transfer.\\n(1) The action proceeds in the court to which it is transferred as if it had been originally hied there. If further pleadings are required or allowed, the time for filing them runs from the date the clerk sends notice that the file has been forwarded under subrule (A)(4). The court to which the action is transferred may order the filing of new or amended pleadings. [Emphasis added.]\\nTo simplify, when a case is transferred, the rulings of the original court become, in effect, the rulings of the new court. The new court is thus \\\"empowered\\\" to act upon those orders as if the orders were its own. Therefore, the district court in this case was authorized to modify the circuit court order dismissing Frankenmuth as a codefendant. Accordingly, once the case was transferred to the district court due to lack of subject matter jurisdiction, the circuit court's authority was by appeal only.\\nPlaintiffs second argument is that he is entitled to relief from the initial order dismissing Frankenmuth because the subsequent bankruptcy and stay of proceedings against Branch Motor left him without a viable defendant. According to plaintiff, that new development constitutes extraordinary circumstances which warrant setting aside the original circuit court order.\\nRelief from a judgment may be granted for a variety of reasons pursuant to MCR 2.612(C)(1), formerly GCR 1963, 528.3, which states, in part:\\n(C) Grounds for Relief From Judgment\\n(1) On motion and on just terms, the court may relieve a party or the legal representative of a party from a final judgment, order, or proceeding on the following grounds:\\n(a) Mistake, inadvertence, surprise, or excusable neglect.\\n(b) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under MCR 2.611(B).\\n(f) Any other reason justifying relief from the operation of the judgment.\\nA trial court's decision to grant relief based on this court rule is discretionary and will not be disturbed absent an abuse of discretion. Bye v Ferguson, 138 Mich App 196, 202; 360 NW2d 175 (1984).\\nWe conclude that, on the facts of this case, relief should have been granted. Failure to do so was an abuse of discretion. Frankenmuth was dismissed on the assumption that Branch Motor would pay the expenses of plaintiff. The order was based on Branch Motor's admission that it was liable for plaintiff's expenses because it was the first-priority insurer under no-fault, an ultimate conclusion of law for the courts. At the time the order was entered, the parties believed that Branch Motor would be able to fulfill its obligation. None of the parties contemplated that Branch Motor would subsequently be involved in bankruptcy proceedings and thus essentially become uncollectable. Therefore, once it became obvious that the circumstances had changed and Branch Motor had become uncollectable, Frankenmuth should have been reinstated as a party defendant.\\nPlaintiff's final argument is that Frankenmuth is the next proper priority insurer under the no-fault act and, as such, is liable if the first priority insurer is unable to pay.\\nAt issue is MCL 500.3114(4); MSA 24.13114(4), which states:\\n(4) Except as provided in subsections (1) to (3), a person suffering accidental bodily injury arising from a motor vehicle accident while an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:\\n(a) The insurer of the owner or registrant of the vehicle occupied;\\n(b) The insurer of the operator of the vehicle occupied.\\nCase law interpreting this provision has generally involved situations where employers have not insured vehicles used in the course of employees' employment. For example, in Lee v DAIIE, 412 Mich 505; 315 NW2d 413 (1982), plaintiffs employer, the United States Post Office, was not required to insure the vehicles used by its employees. Plaintiff sought benefits from his personal insurer, even though the personal insurer did not insure the post office vehicle. The Supreme Court stated:\\nSections 3114(4) and 3115 are concerned, of course, with priorities among personal protection insurers of owners and operators of motor vehicles and, in this case, there is no insurer of the owner of the post office vehicle. The point to be made, however, is that by reason of the combined effect of \\u00a7 3114(1) and the first clause of both \\u00a7 3114(4) and 3115 (\\\"except as provided in subsection [1] of section 3114\\\"), the personal insurer of an injured claimant may stand liable for benefits despite the fact that it has written no coverage respecting any vehicle involved in the accident and indeed that no vehicle involved in the accident has any coverage whatever. [Id., p 516.]\\nThe Supreme Court also indicated that the broader purpose behind \\u00a7 3114 and 3115 is to provide benefits whenever an insured is injured in a motor vehicle accident, whether or not a regis tered or covered motor vehicle is involved. The statutes' narrower purpose, the Court stated, is to ensure that an injured person's personal insurer stands primarily liable for such benefits, whether or not its policy covers the vehicle involved or the vehicle is insured by another no-fault carrier. Id., p 515.\\nIn response, Frankenmuth argues that plaintiff's sole remedy is found in MCL 500.3114(3); MSA 24.13114(3), which states:\\nAn employee, his or her spouse, or a relative of either domiciled in the same household, who suffers accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer, shall receive personal protection insurance benefits to which the employee is entitled from the insurer of the furnished vehicle. [Emphasis added.]\\nFrankenmuth asserts that the relevant vehicle in this case was, in effect, owned by Branch Motor, plaintiff's employer, and that therefore plaintiff cannot seek benefits under MCL 500.3114(4); MSA 24.13114(4) against Frankenmuth.\\nFrankenmuth's assertion with respect to MCL 500.3114(3); MSA 24.13114(3) is unfounded. The vehicle in question was never owned or registered by plaintiff's employer, but rather was owned by plaintiff. The particular arrangement involved a \\\"trip-lease\\\" agreement whereby plaintiff leased the vehicle to his employer, who in turn insured the vehicle and authorized plaintiff to use it in the course of his employment. Subsection (3) specifically requires the vehicle to be \\\"owned or registered by the employer.\\\" A trip-lease arrangement is not equal to ownership. Transport Ins Co v Home Ins Co, 134 Mich App 645, 654; 352 NW2d 701 (1984).\\nFurthermore, as stated above, the policy behind the no-fault act is to compensate an insured injured in a motor vehicle accident. Lee, supra. Branch Motor is in bankruptcy proceedings and there is a great likelihood that plaintiff will not be able to recover from it. Thus, Branch Motor is similarly situated to those employers who are uninsured. Therefore, Frankenmuth is the next priority insurer under MCL 500.3114(4); MSA 24.13114(4). Finally, once Branch Motor's bankruptcy proceedings have been resolved, Frankenmuth may proceed to recoup the benefits paid out to plaintiff under MCL 500.3115(2); MSA 24.13115(2).\\nRemanded to the district court for proceedings consistent with this opinion.\"}" \ No newline at end of file diff --git a/mich/2307884.json b/mich/2307884.json new file mode 100644 index 0000000000000000000000000000000000000000..ed60dedfded7fe2c49d42c43b774b5c875c46a76 --- /dev/null +++ b/mich/2307884.json @@ -0,0 +1 @@ +"{\"id\": \"2307884\", \"name\": \"PEOPLE v. HARBIN\", \"name_abbreviation\": \"People v. Harbin\", \"decision_date\": \"1989-08-23\", \"docket_number\": \"Docket No. 113343\", \"first_page\": \"654\", \"last_page\": \"661\", \"citations\": \"181 Mich. App. 654\", \"volume\": \"181\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T01:04:57.371585+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Michael J. Kelly, P.J., and Wahls and Holbrook, Jr., JJ.\", \"parties\": \"PEOPLE v HARBIN\", \"head_matter\": \"PEOPLE v HARBIN\\nDocket No. 113343.\\nSubmitted July 13, 1989, at Grand Rapids.\\nDecided August 23, 1989.\\nLeave to appeal applied for.\\nWilliam R. Harbin, Jr., was charged with escaping from the Michigan Training Unit, a prison facility run by the Michigan Department of Corrections. Following defendant\\u2019s arraignment, defense counsel requested of the prosecution the names of all res gestae witnesses and requested of the Department of Corrections all documents relating to the escape, a list of the names of all corrections officers working in the designated unit of the facility for a ten-day period preceding the escape, and a list of the names and prison numbers and the photographs of all prisoners residing in designated units of the facility on the date of the escape. A similar request was made by letter to the warden. The request to the prosecution was based on the statute which requires the prosecution to supply a list of trial witnesses, while the request on the Department of Corrections was based on the Freedom of Information Act. The prosecution supplied a five-page investigation report it had in its possession and promised to supply any additional information it obtained. Defense counsel received no reply to the request made on the Department of Corrections and received permission from the warden to interview certain persons but received no information as to the identity of the prisoners residing in the designated units. Defense counsel moved in Ionia Circuit Court to dismiss the charge on the basis that the failure of the prosecution and Department of Corrections to provide all the requested information precluded defendant from presenting his defense of duress. The trial court, James L. Banks, J., granted the motion and dismissed the charge. The prosecution appealed.\\nThe Court of Appeals held:\\nIt was error for the trial court to dismiss the criminal charge under these circumstances. Defense counsel made no effort to seek judicial enforcement of any right to compel disclosure under the Freedom of Information Act, to seek the aid of the prosecution in locating and serving witnesses or to seek a discovery order from the trial court relative to the desired documents and photographs. The record does not establish that the prosecution intentionally and persistently sought to obstruct or interfere with defendant\\u2019s defense. At best the defense motion to dismiss the charge was premature.\\nReferences\\nAm Jur 2d, Depositions and Discovery \\u00a7\\u00a7 400, 420, 426, 427.\\nSee the Index to Annotations under Discovery; Escape or Flight; Freedom of Information Acts.\\nReversed and remanded.\\nEscape \\u2014 Discovery \\u2014 Remedies.\\nIt is error for a trial court to dismiss a prison escape charge on the basis that the failure of the Department of Corrections to provide information relative to the identity of staff and prisoners who were in a particular area of the prison on a particular date pursuant to a defense request for such information made pursuant to the Freedom of Information Act denied defendant the opportunity to present the defense of duress where the defense failed to first either pursue the remedies under the Freedom of Information Act or seek a discovery order for that information from the trial court.\\nFrank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Gary M. Gabry, Prosecuting Attorney, and Raymond P. Voet, Assistant Prosecuting Attorney, for the people.\\nDavid A. Hoort, for defendant.\\nBefore: Michael J. Kelly, P.J., and Wahls and Holbrook, Jr., JJ.\", \"word_count\": \"2227\", \"char_count\": \"13606\", \"text\": \"Per Curiam.\\nThe prosecution appeals from a December 5, 1988, order of the Ionia Circuit Court dismissing the charge of prison escape, MCL 750.193; MSA 28.390, against defendant, William R. Harbin, Jr., on the basis of defendant's having been denied an opportunity to present a defense.\\\" We reverse and remand for proceedings consistent with this opinion.\\nOn May 4, 1988, a warrant was authorized for the arrest of defendant for prison escape for an incident which occurred on April 10, 1988. An arraignment was conducted on May 19, 1988, and a preliminary examination on May 31, 1988. On May 25, defense counsel, in a document entitled \\\"Appearance and Demands,\\\" requested that the prosecution provide him with, among other things, a list of the \\\"[n]ames and addresses of all witnesses required by law to testify against defendant and any other res gestae witnesses known to the prosecuting attorney or the investigating law enforcement agency.\\\" In support of this request, defense counsel cited MCL 767.40a(3); MSA 28.980(1)(3). That statute provides:\\nNot less than 30 days before the trial, the prosecuting attorney shall send to the defendant or his or her attorney a list of the witnesses the prosecuting attorney intends to produce at trial.\\nAlso on May 25, 1988, defense counsel requested that the Michigan Department of Corrections provide him with, among other things, all documents pertaining to the charge against defendant, any documents prepared by \\\"Counselor Brown\\\" and \\\"Counselor Goodman,\\\" the names of all corrections officers \\\"working in c-unit Michigan Training Unit, on or between April 1, 1988 and April 10, 1988,\\\" the \\\"names and prison numbers of all inmates residing in E-unit, Michigan Training Unit, on April 10, 1988,\\\" and the \\\"names and prison numbers of all inmates residing in c-unit, Michigan Training Unit, on April 10, 1988.\\\" In support of this request, defense counsel cited the Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq. In addition, in a letter dated June 2, 1988, defense counsel requested permission from the warden of the Michigan Training Unit, James Yarborough, to interview Counselors Brown and Goodman, to be given \\\"the names and prison numbers of the inmates residing in e unit on April 10, 1988,\\\" and to review, with defendant, any photographs in the custody of the penal institution of the inmates residing in e unit on April 10, 1988.\\nIn response to defense counsel's \\\"Appearance and Demands,\\\" the prosecution, on May 25, 1988, furnished counsel with a copy of the police report regarding the incident \\u2014 a detailed report which is five pages long and includes summaries of interviews with several inmates, officers and staff personnel \\u2014 and advised counsel that \\\"we will furnish you with any evidence or information which comes into the prosecution's possession which is both favorable to the accused and is material to either guilt, or innocence or punishment.\\\" However, it was specifically stated that the remaining \\\"demands\\\" for information were viewed \\\"as a nullity as no statute, case law or other binding authority requires the prosecution to answer or comply with same.\\\" Apparently, defense counsel never received a response to his May 25, 1988, Freedom of Information Act request to the Department of Corrections. In response to the June 2, 1988, letter to Warden Yarborough, defense counsel was informed that he was free to contact Counselors Brown and Goodman and to interview them \\\"on their own time,\\\" and that no document existed listing the names and numbers of inmates living in e unit on April 10, 1988. Defense counsel subsequently sent letters to Counselors Brown and Goodman, but received no responses. Moreover, in his appellate brief, defendant acknowledges that on July 6, 1988, defense counsel was informed by the prosecuting attorney that Warden Yarborough had located an index of the names of prisoners in the relevant portion of the correctional center in which defendant was detained and that a copy of the index was received on August 4, 1988.\\nOn June 24, 1988, defense counsel filed a motion to dismiss the charge of prison escape, arguing that the failure of the prosecution and the Department of Corrections to provide him with all of the information requested \\\"precludes [defendant's] compliance with MCLA 768.21b; MSA 28.1044(2), prejudices his defense and violates his right to due process.\\\" MCL 768.21b; MSA 28.1044(2) provides, in pertinent part, that a defendant charged with prison escape who proposes to offer testimony to establish a defense of duress must file, at the time of arraignment, within fifteen days thereafter, or at such other time as the court directs, a written notice containing, as particularly as is known to the defendant or the defense attorney, the names of witnesses to be called in behalf of the defendant to establish the defense of duress, as well as specific information relative to that defense. The trial court, at a hearing conducted on September 30, 1988, emphasizing that \\\"[w]hat I see here is a direct attempt to try to thwart the defendant's attorney's ability to go in and investigate his case,\\\" granted defendant's motion to dismiss the charge against him on the basis that defendant had been \\\"denied an opportunity to present a defense in this case.\\\"\\nWe find the trial court's action in this case as extreme as it is extraordinary. Without citing one case, statute, or any other authority, either from the bench or in its written order, the court dismissed the serious criminal charge filed against defendant. It is clear that defense counsel was getting little cooperation from the Department of Corrections regarding his requests for information. All of those requests, however, were made without the involvement of the trial court. Instead of filing the proper motions to compel the production of the information he sought, counsel instead apparently attempted to circumvent the proper procedure by making requests under the Freedom of Information Act and by filing a motion to dismiss based on the department's noncompliance with such requests. At no time did defense counsel file an action under the Freedom of Information Act to compel disclosure of the information sought, see MCL 15.235, 15.240; MSA 4.1801(5), 4.1801(10), request the prosecuting attorney to provide assistance in locating and serving process upon witnesses, see MCL 767.40a(5); MSA 28.980(1)(5), file a motion requesting the trial court to permit the delayed filing of defendant's notice of intention to claim the defense of duress, see MCL 768.21b(1); MSA 28.1044(2)(1), or file a motion for a discovery order regarding the desired documentation and photographs, see People v Freeman (After Remand), 406 Mich 514, 516; 280 NW2d 446 (1979); People v Johnson, 168 Mich 581, 584; 425 NW2d 187 (1988). See also 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), \\u00a7 554.1, p 30, 1989 Cum Supp, pp 9-13.\\nOur review of the record convinces us that the prosecution in this case did not intentionally and persistently obstruct or deliberately interfere with the defense attorney's attempts to glean information substantiating defendant's duress defense. See In re Bay Prosecutor, 109 Mich App 476; 311 NW2d 399 (1981), lv den 413 Mich 852 (1982). Instead, it reveals to us that defense counsel tried to avoid bringing a proper motion for an order of discovery regarding the information he sought from the prosecutor and the Department of Corrections, opting instead to pursue novel and extrajudicial methods. In this regard, we quote the assistant prosecuting attorney in this case, who stated at the September 30, 1988, hearing in the circuit court:\\nSo since the beginning, he [defense counsel] has yet to comply with the Michigan Court Rules[ ] which means he's got to make a request from the party, which he did in this particular case, but then the next step under the Michigan Court Rules is to come into court and then compel discovery. . . .\\nThe Defendant hasn't done that yet. He's tried to seek information through the Freedom of Information Act. When he didn't receive that information, he came in immediately with a motion to dismiss, which obviously has brought this case out another 80 days or so, and it's \\u2014 by taking his own legal shortcut \\u2014 by not following the procedure of the Michigan Court Rules \\u2014 he's trying to use this delay in the case used to his own benefit, when really actually, he's the one who has caused the delay.\\nWe are in a tough position in the Prosecutor's Office. We're caught between Defendant's rights and the Department of Corrections. We are not a part of the Department of Corrections. We can't tell the Department of Corrections what to do or we can't control the Department of Corrections. So the only way we can ask the Department of Corrections be controlled is through the Michigan Court Rules; that the Defendant come in and follow the proper avenues and make \\u2014 and that this Court can order the Department of Corrections to do these things.\\nWe find that the trial court's dismissal of the charge against defendant on the basis of defendant's having been \\\"denied an opportunity to present a defense\\\" was premature at best and an abuse of discretion at worst. Accordingly, we set aside the trial court's December 5, 1988, order, reinstate the charge of prison escape against defendant, and remand the case for further proceedings, including, if defendant so chooses, the filing of proper motions for the issuance of discovery orders regarding the documents and photographs in the custody of the prosecution and the Department of Corrections which defendant wishes to inspect.\\nReversed and remanded. We do not retain jurisdiction.\\nWe note that MCR 6.001(B) provided at that time that the \\\"discovery proceedings under subchapter 2.300 may not be taken for the purposes of discovery in criminal matters,\\\" but that this Court has stated: \\\"Even where discovery is not authorized by statute or rule, it has long since been recognized that discovery in criminal cases is a matter within the trial court's discretion.\\\" Johnson, supra, p 584.\"}" \ No newline at end of file diff --git a/mich/2311319.json b/mich/2311319.json new file mode 100644 index 0000000000000000000000000000000000000000..2748deeb503ed647aa958a65973037c66778e60d --- /dev/null +++ b/mich/2311319.json @@ -0,0 +1 @@ +"{\"id\": \"2311319\", \"name\": \"DAUBENSPECK v. AUTO CLUB OF MICHIGAN\", \"name_abbreviation\": \"Daubenspeck v. Auto Club\", \"decision_date\": \"1989-03-07\", \"docket_number\": \"Docket No. 106352\", \"first_page\": \"453\", \"last_page\": \"455\", \"citations\": \"179 Mich. App. 453\", \"volume\": \"179\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T02:08:00.141389+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Danhqf, C.J., and Beasley and Mackenzie, JJ.\", \"parties\": \"DAUBENSPECK v AUTO CLUB OF MICHIGAN\", \"head_matter\": \"DAUBENSPECK v AUTO CLUB OF MICHIGAN\\nDocket No. 106352.\\nSubmitted February 3, 1989, at Detroit.\\nDecided March 7, 1989.\\nAllan K. Daubenspeck brought an action in the Macomb Circuit Court against Automobile Club of Michigan, his no-fault insurer, for personal protection benefits for injuries he sustained when he slipped and fell on ice while filling his car with gasoline. The court, George R. Deneweth, J., granted summary judgment for defendant. Plaintiff appealed.\\nThe Court of Appeals held:\\nThe grant of summary judgment was proper. A no-fault insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle. Coverage is provided only where the causal connection between the injury and the maintenance or use of a motor vehicle as a motor vehicle is more than incidental, fortuitous, or \\\"but for.\\u201d\\nAffirmed.\\nInsurance \\u2014 No-Fault \\u2014 Personal Injury Protection Benefits.\\nA no-fault insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle; coverage is provided only where the causal connection between the injury and the maintenance or use of a motor vehicle as a motor vehicle is more than incidental, fortuitous, or \\\"but for\\u201d (MCL 500.3105[1]; MSA 24.13105[1]).\\nLaw O\\u00f1ces of Samuel I. Berstein (by Edmund O. Battersby), for plaintiff.\\nBrandt, Hanlon, Becker, Lanctot, McCutcheon, Martin & Schoolmaster (by Gregory Van Tongeren), and Nancy L. Bosh, of Counsel, for defendant.\\nReferences\\nAm Jur 2d, Automobile Insurance \\u00a7\\u00a7 351, 354.\\nSee the Index to Annotations under No-Fault Insurance.\\nBefore: Danhqf, C.J., and Beasley and Mackenzie, JJ.\", \"word_count\": \"820\", \"char_count\": \"5065\", \"text\": \"Per Curiam.\\nPlaintiff appeals as of right from an order granting summary disposition in favor of defendant, his no-fault automobile insurer, pursuant to MCR 2.116(0(10). We affirm.\\nThe facts are undisputed. Plaintiff stopped at a self-service gas station on February 7, 1986. After he finished pumping his gas but before he replaced his gas cap, plaintiff slipped and fell on ice between his car and the gas pump. This suit followed defendant's refusal to pay personal protection insurance benefits for plaintiff's resultant injuries.\\nMCL 500.3105(1); MSA 24.13105(1) provides that \\\"an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle . . . .\\\" Under this section, coverage should be provided only where the causal connection between the injury and the maintenance or use of a motor vehicle as a motor vehicle is more than incidental, fortuitous, or \\\"but for.\\\" See generally Thornton v Allstate Ins Co, 425 Mich 643, 656-661; 391 NW2d 320 (1986).\\nIn this case, plaintiff contends that refueling constitutes maintenance of an automobile and that he is entitled to benefits under MCL 500.3105(1); MSA 24.13105(1) because he was injured in the course of such maintenance. Defendant asserts that the requisite causal connection between plaintiff's injuries and the maintenance of his vehicle is lacking on these facts. The trial court, in granting summary disposition in favor of defendant, concluded that plaintiff's injuries arose from his slip and fall and that their connection to the vehicle was merely fortuitous. We agree with the trial court.\\nIn Rajhel v Automobile Club Ins Ass'n, 145 Mich App 593; 378 NW2d 468 (1985), the plaintiff sought benefits under the no-fault act for injuries sustained when she slipped and fell on ice while walking from her disabled car to a tow truck she had called. This Court concluded that coverage should not be permitted:\\n[irrespective of the question of whether plaintiff was \\\"occupying\\\" or \\\"maintaining\\\" a motor vehicle, there has simply been no causal connection established between that activity and the injury sustained. The no-fault act was not designed to compensate all injuries occurring in or around a motor vehicle. Denning v Farm Bureau Ins Co, 130 Mich App 777, 782; 344 NW2d 368 (1983), lv den 419 Mich 877 (1984). The injury sustained in the instant case was unrelated to plaintiff's maintenance, etc., of a motor vehicle, since the injury could \\\"just as well have occurred elsewhere\\\". 130 Mich App 786, i.e., its connection to a motor vehicle was merely fortuitous. [145 Mich App 595.]\\nSimilarly, in this case, even assuming that the act of refueling constitutes maintenance, the connection between the act of-pumping gas and plaintiff's slip and fall was merely incidental, fortuitous, or \\\"but for.\\\" Plaintiff was injured by losing his footing on a patch of ice, an injury which could \\\"just as well have occurred elsewhere,\\\" Rajhel, supra, not by the act of refueling an automobile. Had plaintiff been injured, for example, by fumes emitted from the gas pump or an explosion of the pump, perhaps his claim would have merit. On these facts, however, it may not be said that plaintiff's injuries arose from the maintenance or refueling of his car.\\nAffirmed.\"}" \ No newline at end of file diff --git a/mich/2327547.json b/mich/2327547.json new file mode 100644 index 0000000000000000000000000000000000000000..1ec9a2e866818c0ad469210fdc55a4e0cd70dd41 --- /dev/null +++ b/mich/2327547.json @@ -0,0 +1 @@ +"{\"id\": \"2327547\", \"name\": \"GARCIA v. CITY OF JACKSON (ON SECOND REMAND)\", \"name_abbreviation\": \"Garcia v. City of Jackson\", \"decision_date\": \"1991-07-08\", \"docket_number\": \"Docket No. 129602\", \"first_page\": \"197\", \"last_page\": \"203\", \"citations\": \"190 Mich. App. 197\", \"volume\": \"190\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T23:38:21.154107+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Cynar, P.J., and Mackenzie and Wahls, JJ.\", \"parties\": \"GARCIA v CITY OF JACKSON (ON SECOND REMAND)\", \"head_matter\": \"GARCIA v CITY OF JACKSON (ON SECOND REMAND)\\nDocket No. 129602.\\nSubmitted June 5, 1990, at Lansing.\\nDecided July 8, 1991, at 9:30 a.m.\\nLeave to appeal granted, 438 Mich 863.\\nManuel Garcia, Sr., for himself and as personal representative of the estate of Javier Garcia, deceased, and others brought an action in the Jackson Circuit Court against the City of Jackson as a result of the drowning of the decedent in a river near a dam owned by the city. The court, James G. Fleming, J., granted summary disposition for the defendant, finding that the plaintiffs failed to set forth any intentional tort that would overcome the defense of governmental immunity. The Court of Appeals, Bronson, P.J., and R. B. Burns, J. (R. C. Kaufman, J., concurring), reversed, determining that the plaintiffs did state a claim of intentional nuisance that avoided the defense of governmental immunity. 152 Mich App 254 (1986). The Supreme Court, in lieu of granting leave to appeal, vacated the judgment of the Court of Appeals and remanded the case to that Court for reconsideration in light of Hadfield v Oakland Co Drain Comm\\u2019r, 430 Mich 139 (1988). 430 Mich 877 (1988). On remand, the Court of Appeals, Cynar, P.J., and Wahls, J. (Mackenzie, J., dissenting), again reversed the decision of the trial court, finding that intentional nuisance had been pleaded and that Had\\u00f1eld did not overrule the intentional nuisance exception to governmental immunity. 174 Mich App 373 (1989). The Supreme Court granted leave to appeal, limited to whether the defendant was govemmentally immune from liability on the facts of the case, and ordered the case to be argued with Li v Feldt. 432 Mich 891 (1989). The Supreme Court decided that the Court of Appeals improperly found an exception to governmental immunity on the basis of intentional nuisance, and again reversed and remanded both Li and Garcia to the Court of Appeals to consider the existence of nuisance per se and public nuisance exceptions to immunity, and their applicability to Li and Garcia if, and to the extent that, they were properly raised before the Court of Appeals. 434 Mich 584 (1990).\\nOn second remand, the Court of Appeals held:\\nMichigan law recognizes public nuisance and nuisance per se as exceptions to governmental immunity. The factual allegations in this case can support the claim of nuisance per se or public nuisance sufficiently to avoid a grant of summary disposition for the defendant. It is appropriate to remand this action to afford the plaintiffs an opportunity to amend their pleadings to clearly state the law and facts being relied on in support of their action, and to give the defendant an opportunity to answer. Following argument, the lower court must determine whether the plaintiffs have pleaded a claim that constitutes nuisance per se or public nuisance.\\nReversed and remanded.\\nMackenzie, J., dissenting, stated that the only issue ever raised before the Court of Appeals was whether the plaintiffs pleaded a cause of action for intentional nuisance. Any further consideration of the plaintiffs\\u2019 pleadings or burdening the trial court with determining whether the plaintiffs have pleaded a claim constituting a nuisance per se or public nuisance is beyond the scope of the Supreme Court\\u2019s remand order. The decision of the trial court should be affirmed, because the plaintiffs have raised no issue other than the correctness of the trial court\\u2019s determination that the plaintiffs failed to state a cause of action for intentional nuisance, and that determination was consistent with the Supreme Court\\u2019s holding in this case after the first remand. 434 Mich 584 (1990).\\nStanton, Bullen, Nelson, Moilanen & Klaasen, P.C. (by Charles A. Nelson), for the defendant.\\nAmicus Curiae:\\nFrank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, and Stewart H. Freeman and Michael C. McDaniel, Assistant Attorneys General, for the Attorney General.\", \"word_count\": \"1978\", \"char_count\": \"12032\", \"text\": \"ON SECOND REMAND\\nBefore: Cynar, P.J., and Mackenzie and Wahls, JJ.\\nCynar, P.J.\\nFollowing a second remand from the Supreme Court, we again reverse the decision of the trial court.\\nPlaintiffs appealed as of right from an April 12, 1985, judgment of the trial court that granted the defendant's motion for summary disposition. The trial court determined that the amended complaint failed to set forth any intentional tort that would overcome governmental immunity.\\nThe Court of Appeals in its opinion of June 2, 1986, reversed the decision of the trial court, determining that the plaintiffs did state a claim of intentional nuisance that avoided the defense of governmental immunity. Garcia v City of Jackson, 152 Mich App 254; 393 NW2d 599 (1986). The Supreme Court, in lieu of granting leave to appeal, vacated the Court of Appeals judgment and remanded the case to the Court of Appeals for reconsideration in light of Hadfield v Oakland Co Drain Comm'r, 430 Mich 139; 422 NW2d 205 (1988) . 430 Mich 877 (1988).\\nFollowing the first remand by the Supreme Court, the Court of Appeals again reversed the decision of the trial court, finding that intentional nuisance had been pleaded and that Hadfield did not overrule the intentional nuisance exception to governmental immunity. Garcia v City of Jackson (On Remand), 174 Mich App 373; 435 NW2d 796 (1989) . Defendant again sought leave to appeal. The Supreme Court granted leave to appeal, limited to whether the defendant is governmentally immune from liability on the facts of the case. The Court also ordered the case to be argued with Li v Feldt, reported as Li v Wong (On Remand), 170 Mich App 256; 428 NW2d 36 (1988). 432 Mich 891 (1989).\\nOn April 30, 1990, the Supreme Court, while deciding that the Court of Appeals improperly found an exception to governmental immunity on the basis of intentional nuisance, again reversed and remanded this case and Li to the Court of Appeals to consider the existence of nuisance per se and public nuisance as exceptions to governmental immunity and their applicability to this case and to Li, if and to the extent that the exceptions were properly raised in the Court of Appeals. Li v Feldt (After Remand), and Garcia v City of Jackson (After Remand), 434 Mich 584; 456 NW2d 55 (1990).\\nFollowing the second remand, an additional brief was received in behalf of the defendant. Further, we received the Attorney General's amicus curiae brief. We again reverse the decision of the trial court.\\nThis action arose out of the drowning of Javier Garcia in the Grand River near the Holton Dam, located in the City of Jackson. The dam was built in the 1880s and was modified to its present configuration in the mid-1980s. The modifications included a \\\"box section.\\\" The box section is a five-by ten-foot submerged conduit through which water flows underground for two thousand feet. The mouth of the pipe was open and unguarded by any grating. Defendant acquired Holton Dam in 1956.\\nBefore decedent's drowning, ten-year-old Noel Jeffrey Potter drowned while swimming in the vicinity of the dam when he was suddenly sucked into the pipe and dragged under water for two thousand feet. Within thirty days after the boy's death, 1,257 residents of Jackson signed a petition urging defendant to correct and improve the dam. Garcia drowned on February 26, 1983, in the same manner as the Potter boy, but about eighteen months later. On October 10, 1983, the City of Jackson began the actual physical improvement of the dam site to enhance its safety.\\nThe complaint filed by the plaintiffs sounded in nuisance per se and nuisance in fact. Plaintiffs filed an amended complaint that contained one count of nuisance per se. A second amended complaint was filed. The form and substance of the second amended complaint was identical to the first amended complaint, except the caption of count i read \\\"wilful wanton [sic] misconduct of the owner of the Holton Dam, City of Jackson\\\" instead of \\\"nuisance per se.\\\" Although the amended complaint did not contain the word \\\"nuisance,\\\" the plaintiffs alleged that the defendant continued a dangerous condition, knowing the incidents of drowning were substantially certain to result from the condition.\\nNuisance is a nuisance. Aside from case law opinions, past legal publications regarding nuisance lend sparse assistance in the disposition of this matter. Case law on the topic often leaves the legal practitioner, trial judge, or other reader with a feeling of being present on a ship without a rudder. Often much rereading and study of an appellate opinion is needed in trying to understand not only what is written but to determine the status of tort law applicable in the category of nuisance. When understanding is indecisive, uncertainty in handling follows.\\nRelying on Li v Feldt (On Second Remand), 187 Mich App 475; 468 NW2d 268 (1991), we conclude that Michigan law recognizes public nuisance and nuisance per se as exceptions to governmental immunity. Additionally in support of our position, we are persuaded by the concurrence of Justice Boyle in Hadfield, supra.\\nIn many cases, the problem is not in identifying nuisance, but in recognizing the type of nuisance that is contended to have occurred and whether such a labelled nuisance, if proven, will avoid the defense of governmental immunity. Because of such uncertainty in an action where liability is premised on nuisance, we feel compelled to not only examine the label placed on the nuisance but also to examine the facts alleged in support of the nuisance before considering the propriety of a grant of summary disposition. In scrutinizing the legal basis of the pleadings, a court must take the factual allegations and reasonable inferences therefrom as true. Martin v Michigan, 129 Mich App 100; 341 NW2d 239 (1983). We are convinced the factual allegations in this case can support the claim of nuisance per se or public nuisance sufficiently to avoid a grant of summary disposition for the defendant.\\nWith the posture of the pleadings, as they presently exist, we deem it appropriate to afford the plaintiffs an opportunity to amend their pleadings to clearly state the law and facts being relied on in support of their action. The defendant shall have an opportunity to answer. Following argument, the court shall rule whether plaintiffs have pleaded a claim that constitutes nuisance per se or public nuisance.\\nWe reverse the trial court's grant of summary disposition, and remand this matter to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.\\nWahls, J., concurred.\"}" \ No newline at end of file diff --git a/mich/2340313.json b/mich/2340313.json new file mode 100644 index 0000000000000000000000000000000000000000..a288fab895f0a257c46db47b0e8b44e428369cc0 --- /dev/null +++ b/mich/2340313.json @@ -0,0 +1 @@ +"{\"id\": \"2340313\", \"name\": \"In re GILLIS\", \"name_abbreviation\": \"In re Gillis\", \"decision_date\": \"1994-01-19\", \"docket_number\": \"Docket No. 146001\", \"first_page\": \"320\", \"last_page\": \"323\", \"citations\": \"203 Mich. App. 320\", \"volume\": \"203\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T22:40:15.884232+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Brennan, P.J., and Reilly and R. J. Danhof, JJ.\", \"parties\": \"In re GILLIS\", \"head_matter\": \"In re GILLIS\\nDocket No. 146001.\\nSubmitted November 8, 1993, at Detroit.\\nDecided January 19, 1994, at 9:05 A.M.\\nSharmaine Gillis, a minor, was convicted following a bench trial in the Wayne County Probate Court, Juvenile Division, Y. Gladys Barsamian, J., of involuntary manslaughter and was sentenced. She appealed, alleging that the court\\u2019s findings of fact were clearly erroneous and insufficient.\\nThe Court of Appeals held:\\n1. There was sufficient evidence to support the trial court\\u2019s judgment that the respondent caused the decedent\\u2019s death, that her justification of self-defense was negated by her use of excessive force, and that she acted in a grossly negligent manner by swinging a knife at the decedent.\\n2. The trial court did not err in considering the application of self-defense to the charge of involuntary manslaughter.\\nAffirmed.\\n1. Criminal Law \\u2014 Involuntary Manslaughter \\u2014 Elements.\\nThe elements of involuntary manslaughter are: a death caused by the defendant, without legal justification or excuse, while the defendant was acting in a grossly negligent manner or while committing an unlawful act that was inherently dangerous to human life (MCL 750.321; MSA 28.553).\\n2. Criminal Law \\u2014 Involuntary Manslaughter \\u2014 Self-Defense \\u2014 Voluntary Manslaughter.\\nVoluntary and involuntary manslaughter are both characterized as the unlawful killing of another without legal justification or excuse and are distinguished from the higher crimes of murder by the absence of malice; self-defense is a valid defense to a charge of involuntary manslaughter (MCL 750.321; MSA 28.553).\\nReferences\\nAm Jur 2d, Homicide \\u00a7\\u00a7 7, 56, 70.\\nSee ALR Index under Homicide; Manslaughter.\\nFrank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O\\u2019Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, for the petitioner.\\nJoel M. Dorf, for the respondent.\\nBefore: Brennan, P.J., and Reilly and R. J. Danhof, JJ.\\nFormer Court of Appeals judge, sitting on the Court of Appeals by assignment.\", \"word_count\": \"791\", \"char_count\": \"5167\", \"text\": \"Per Curiam.\\nFollowing a bench trial before the Wayne County Probate Court, Juvenile Division, respondent was found guilty of involuntary manslaughter, MCL 750.321; MSA 28.553. Respondent was sentenced to intensive probation under the supervision of the Department of Social Services. Respondent appeals as of right, claiming that the trial court's findings of fact were clearly erroneous and insufficient to find her guilty of involuntary manslaughter. We affirm.\\nRespondent was charged with manslaughter for the stabbing death of Anthony Williams. At trial, respondent did not dispute that she had caused Williams' death by stabbing him in the heart during a fight, but claimed that she was acting in self-defense. The trial court found that respondent acted in self-defense but with excessive force, and in a grossly negligent manner; respondent was thus found guilty of involuntary manslaughter.\\nThe elements of involuntary manslaughter are: (1) a death caused by the defendant, (2) without legal justification or excuse, (3) while the defendant was acting in a grossly negligent manner or while committing an unlawful act that was inherently dangerous to human life. People v Maghzal, 170 Mich App 340, 344; 427 NW2d 552 (1988), see also People v Heflin, 434 Mich 482, 497, 507-508; 456 NW2d 10 (1990). Our review of the record indicates that, viewed in the light most favorable to the prosecutor, there was sufficient evidence to support the trial court's judgment that respondent caused Williams' death, that her justification of self-defense was negated by the use of excessive force, and that she acted in a grossly negligent manner by swinging a knife at Williams. People v Petrella, 424 Mich 221, 268-270; 380 NW2d 11 (1985).\\nHaving addressed respondent's challenge to the sufficiency of the evidence, we note that, in the main, respondent seeks to impeach the validity of the trial court's findings by claiming that the court erroneously considered self-defense in the context of a charge of involuntary manslaughter. Respondent appears to believe that self-defense is not a valid defense to a charge of involuntary manslaughter.\\nRespondent is misled by her reliance on People v Knott, 59 Mich App 105, 115; 228 NW2d 838 (1975), which incorrectly states that \\\"[s]elf-defense negates voluntary manslaughter, not involuntary manslaughter.\\\" Id. While the two offenses are distinct in many ways, they are both characterized as \\\"the unlawful killing of another without legal justiflcation or excuse . . . distinguished from the higher crimes of murder by the absence of malice\\\" (emphasis added). People v Townes, 391 Mich 578, 589; 218 NW2d 136 (1974). Townes addressed the characteristics of involuntary manslaughter under the common law; the language \\\"without legal justification or excuse\\\" applies equally to involuntary manslaughter under the statute. Heflin, supra. Thus, the trial court did not err in consider ing the application of self-defense to a charge of involuntary manslaughter, and the validity of the court's findings was not thereby impeached.\\nAffirmed.\"}" \ No newline at end of file diff --git a/mich/238683.json b/mich/238683.json new file mode 100644 index 0000000000000000000000000000000000000000..8a6fcb77ca600adf5301929daacf0f9c8486e235 --- /dev/null +++ b/mich/238683.json @@ -0,0 +1 @@ +"{\"id\": \"238683\", \"name\": \"STOVER v. GARFIELD\", \"name_abbreviation\": \"Stover v. Garfield\", \"decision_date\": \"2001-09-14\", \"docket_number\": \"Docket No. 223196\", \"first_page\": \"456\", \"last_page\": \"479\", \"citations\": \"247 Mich. App. 456\", \"volume\": \"247\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T17:20:43.051499+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Sawyer, P.J., and Griffin and O\\u2019Connell, JJ.\", \"parties\": \"STOVER v GARFIELD\", \"head_matter\": \"STOVER v GARFIELD\\nDocket No. 223196.\\nSubmitted June 12, 2001, at Detroit.\\nDecided September 14, 2001, at 9:10 A.M.\\nLeave to appeal sought.\\nWilliam C. Stover, personal representative of the estate of Charles L. Dolan, deceased, brought an action in the Genesee Circuit Court against James Garfield, D.O., and others, alleging intentional misconduct in causing the decedent\\u2019s death by improperly withholding food and water from the decedent while the decedent was under Dr. Garfield\\u2019s care. The complaint also alleged gross negligence, false imprisonment, assault and battery, violations of various state and federal statutes, and ordinary negligence. Insurance Company of the West, which insured Dr. Garfield under a professional liability policy that covered \\u201cdamages because of a professional incident to which this policy applies, which results from your rendering of, or your failure to render, professional services in the practice of your profession,\\u201d initially defended the action, while reserving its right to withdraw if the court determined that the claims fell outside the policy\\u2019s definition of professional services. The court, Robert M. Ransom, J., accepted the plaintiff\\u2019s characterizations of the action as one not sounding in medical malpractice and entered an order accordingly. The insurer then announced that the claims did not implicate the insurance policy and declined to defend the case further. The plaintiff and the defendants then stipulated the entry of a judgment in favor of the plaintiff against Dr. Garfield only, to be satisfied solely through the proceeds of the insurance policy with Insurance Company of the West. The plaintiff brought a motion for garnishment against the insurer, which alleged that it had no obligations under the policy. The insurer alleged that professional negligence was synonymous with malpractice and that the plaintiff\\u2019s characterization of the action as one not alleging medical malpractice absolved the insurer of obligations arising from Garfield\\u2019s alleged professional negligence. The court found that the policy provided broader coverage than merely for medical malpractice and, therefore, the insurer erred in deciding to withdraw from its defense of Dr. Garfield. The court found the insurer was obligated to pay the full amount of the judgment. The insurer appealed.\\nThe Court of Appeals held,-.\\n1. Pursuant to the definitions of the terms in the policy, there can be no \\u201cprofessional negligence\\u201d arising out of \\u201cprofessional services\\u201d or involving a \\u201cprofessional incident\\u201d that does not involve \\u201cmalpractice.\\u201d The concepts are synonymous. Because the trial court previously determined that the plaintiffs claims did not sound in malpractice, the professional liability policy at issue does not provide coverage for those claims.\\n2. The clear intent of the language of the policy is to provide coverage for what is commonly referred to as \\u201cmalpractice\\u201d and only for malpractice (i.e., \\u201cprofessional liability\\u201d). Once the trial court determined that the plaintiff\\u2019s claims did not involve malpractice, coverage under the policy no longer applied. The trial court erred in failing to hold that the insurer had no liability under the policy. The order of the trial court must be reversed and the matter must be remanded for the entry of a judgment in favor of the insurer.\\nReversed and remanded.\\nO\\u2019Connell, X, dissenting, stated that the clear and unambiguous language of the insurance policy provides coverage for damages arising from the plaintiffs claims, that the trial court erred in concluding that the plaintiff\\u2019s claims did not allege medical malpractice, that the plaintiff attempted to evade the medical malpractice action procedural requirements by couching the cause of action in terms of ordinary negligence and intentional misconduct, and that the insurer breached its duty to defend because the theories of recovery set forth by the plaintiff clearly fell within the coverage of the policy. The clear language of the policy provides coverage in this matter, and the actions of Dr. Garfield fall squarely within the purview of \\u201cprofessional services\\u201d and a \\u201cprofessional incident\\u201d as defined in the policy. The policy was not intended to limit coverage to damages arising solely from actions that fall within the precise definition of \\u201cmalpractice.\\u201d The order of the trial court finding the insurer liable for the amount of the settlement should be affirmed.\\nMax Dean, for the plaintiff.\\nPlunkett & Cooney, PC. (by Robert G. Kamenec), for Insurance Company of the West.\\nBefore: Sawyer, P.J., and Griffin and O\\u2019Connell, JJ.\", \"word_count\": \"6783\", \"char_count\": \"43813\", \"text\": \"Sawyer, P.J.\\nGarnishee-defendant Insurance Company of the West appeals from an order of the circuit court rejecting garnishee-defendant's motion for summary disposition and requiring garnishee-defendant to cover defendant Dr. James Garfield's obligations under a prior consent judgment with plaintiff William C. Stover, personal representative of the estate of Charles L. Dolan, deceased. We reverse and remand.\\nThe decedent was admitted to Fenton Extended Care Center in March 1994, in an advanced state of illness and age that rendered him incompetent. Defendant Dr. Garfield attended to the decedent at the facility until the decedent's death on April 22, 1994. According to the evidence, Dr. Garfield ordered discontinuation of oral and tube feeding and hydration of the decedent and of treatment for the decedent's pneumonia, several days before the latter's death, relying on instructions from the decedent's wife and her personal representative, neither of whom was legal guardian for the decedent. The nursing home had initiated procedures for acquiring the decedent's living will from the decedent's family physician but was lackluster in following up on its request. Dr. Garfield testified during his deposition that he knew of no living will associated with the decedent and had not asked about the existence of either a living will or a legal guardian.\\nThe decedent's living will included a section for indicating treatments that the declarant wished not to be provided once death was unquestionably near. The form specifically listed the following examples: cardiac resuscitation, mechanical respiration, and artificial feeding and fluids by tubes. The decedent specified that only mechanical respiration was to be withheld. The document thus strongly implied that the decedent did not consent to the withholding of artifi cial feeding or fluids by tubes, as was done in his case.\\nPlaintiff William Stover commenced action on behalf of the decedent's survivors and estate, alleging that defendants improperly withheld food and water from the decedent, in violation of the latter's written directives. Plaintiff openly took pains to avoid characterizing the action as one sounding in medical malpractice, expressly wishing to avoid the requirement of filing an affidavit of merit from a medical practitioner, as required in such actions by MCL 600.2912d. The trial court accepted plaintiff's characterizations and excused that requirement. Count I of the amended complaint alleged intentional misconduct in causing the decedent's death. Count n alleged gross negligence, false imprisonment, assault and battery, and violations of various state and federal statutes. Count m alleged ordinary negligence.\\nDr. Garfield had an insurance policy with garnishee-defendant. The policy promised to indemnify and defend Dr. Garfield in matters arising from claims against him in connection with his provision of medical services. The policy additionally capped garnishee-defendant's responsibility for Dr. Garfield's damages at $200,000, and excluded from coverage intentional misconduct and exemplary damages.\\nGarnishee-defendant initially took responsibility for the defense of this action, while reserving its right to withdraw in the event that a court determined that the claims at issue fell outside the policy's definition of professional services. Then, in response to the trial court's order stating that this was not a medical malpractice case, garnishee-defendant announced that the claims did not implicate the insurance policy and declined to defend the suit further.\\nPlaintiff and defendants then stipulated the entry of judgment in favor of plaintiff, against Dr. Garfield only, in the amount of $200,000, with interest and costs, to be satisfied solely through the proceeds of the insurance policy with garnishee-defendant. The trial court entered the consent judgment on August 24, 1998.\\nPlaintiff followed with a motion for garnishment. Garnishee-defendant resisted on the ground that garnishee-defendant had no obligations under the insurance policy, arguing that \\\"professional negligence\\\" was synonymous with \\\"malpractice,\\\" and that plaintiff's emphatic characterization of the underlying action as something other than one alleging malpractice thus absolved garnishee-defendant of obligations pursuant to professional negligence. Alternatively, garnishee-defendant argued that, to the extent that coverage existed, damages \\u2014 and thus garnishee-defendant's responsibility for them \\u2014 should be apportioned according to whether they stemmed from covered or noncovered claims.\\nThe trial court ruled that the insurance contract provided broader coverage than merely for medical malpractice and, therefore, garnishee-defendant erred in deciding to withdraw from its defense of Dr. Garfield. The court additionally held that the amount of the settlement was supportable by any of plaintiff's three theories of recovery, thus obligating garnishee-defendant for the full amount of the judgment with out need to allocate garnishee-defendant's obligations according to covered and noncovered claims.\\nGarnishee-defendant argues that the trial court erred in finding the insurance policy applicable to the claims against Dr. Garfield by its general terms and, alternatively, that if the policy did cover the matter generally, the court nonetheless failed to give effect to specific exclusions within it. This Court reviews contract language for ambiguity, and construes clear contract language, de novo. Farm Bureau Mut Ins Co of Michigan v Nikkel, 460 Mich 558, 563; 596 NW2d 915 (1999) (ambiguity); Pakideh v Franklin Commercial Mortgage Group, Inc, 213 Mich App 636, 640; 540 NW2d 777 (1995) (clear contract language).\\nAmbiguities in insurance contracts must be strictly construed against the drafter. State Farm Mut Automobile Ins Co v Enterprise Leasing Co, 452 Mich 25, 38; 549 NW2d 345 (1996). \\\"[U]nder the rule of reasonable expectation, the court grants coverage under the policy if 'the policyholder, upon reading the contract language is led to a reasonable expectation of coverage.' \\\" Fire Ins Exchange v Diehl, 450 Mich 678, 687; 545 NW2d 602 (1996), quoting Powers v DAIIE, 427 Mich 602, 632; 398 NW2d 411 (1986).\\nIn this case, the insurance policy at issue announces that garnishee-defendant's obligations under the contract extend to covering \\\"damages because of a professional incident to which this policy applies, which results from your rendering of, or your failure to render, professional services in the practice of your profession . . . .\\\" (Emphasis in original.) \\\"Professional services\\\" is defined within the contract:\\nProfessional services means the delivery of medical services by the individual Named Insured to a patient as permitted by license as a Medical Doctor or Doctor of Osteopathy. Professional services also includes the activities of the individual Named Insured: (i) as a supervisor of the activities of another person who renders medical services to a patient while acting under the direction and control of the individual Named Insured, if the individual Named Insured is legally responsible for the acts and omissions of the other person . [Emphasis in original.]\\n\\\"Professional incident\\\" is defined as \\\"an act or omission . in the furnishing of professional services by the individual Named Insured . to a patient, that may result in your liability for damages.\\\" (Emphasis in original.)\\nThe question thus becomes whether there can be \\\"professional negligence\\\" arising out of \\\"professional services\\\" or involving a \\\"professional incident\\\" that does not involve \\\"malpractice.\\\" For the reasons expressed below, we hold that such concepts are synonymous and, therefore, because it was previously determined that plaintiffs claims did not sound in malpractice, the professional liability policy at issue does not provide coverage for those claims.\\nWe begin by looking at the definition of \\\"malpractice\\\":\\nProfessional misconduct or unreasonable lack of skill. This term is usually applied to such conduct by doctors, lawyers, and accountants. Failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss or damage to the recipient of those services or to those entitled to rely upon them. It is any professional misconduct, unreasonable lack of skill or fidelity in professional or fiduciary duties, evil practice, or illegal or immoral conduct. [Black's Law Dictionary (5th ed), p 864.]\\nAlso of interest to the determination of this case is the Supreme Court's observation in Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26, 45-46; 594 NW2d 455 (1999):\\nIn Bronson v Sisters of Mercy Health Corp, 175 Mich App 647; 438 NW2d 276 (1989), the plaintiff's complaint included allegations that the defendant hospital had failed to supervise and adequately maintain its staff. The plaintiff argued that the trial court erred in granting summary disposition for failure to fide the claim within the two-year period of limitation applicable to medical malpractice claims, because the complaint stated a claim for ordinary negligence only, which is governed by a three-year period of limitation. The Court of Appeals affirmed the trial court's order of summary disposition, agreeing with the trial court that the allegations within the plaintiff's complaint involve issues of medical judgment.\\n\\\"The key to a medical malpractice claim is whether it is alleged that the negligence occurred within the course of a professional relationship. The providing of professional medical care and treatment by a hospital includes supervision of staff physicians and decisions regarding selection and retention of medical staff. [175 Mich App 652-653 (citations omitted).]\\\"\\nThe determination whether a claim will be held to the standards of proof and procedural requirements of a medical malpractice claim as opposed to an ordinary negligence claim depends on whether the facts allegedly raise issues that are within the common knowledge and experience of the jury or, alternatively, raise questions involving medical judgment. Wilson v Stilwill, 411 Mich 587, 611; 309 NW2d 898 (1981); McLeod v Plymouth Court Nursing Home [957 F Supp 113, 115 (ED Mich, 1997)].\\nIn other words, if a claim arises out of \\\"professional judgment\\\" or a \\\"professional relationship,\\\" then it involves malpractice, not ordinary negligence. Similarly, the \\\"professional liability\\\" policy at issue here refers to coverage involving \\\"professional services.\\\" We are satisfied that the clear intent of the language of the policy is to provide coverage for what is commonly referred to as \\\"malpractice\\\" and only for malpractice (i.e., \\\"professional liability\\\").\\nTherefore, once it was determined that plaintiffs claims in the case at bar did not involve \\\"malpractice,\\\" and thus did not have to comply with the statutory requirements imposed on medical malpractice claims, coverage under the policy at issue here no longer applied. Accordingly, the trial court erred in failing to hold that garnishee-defendant had no liability under the policy.\\nIn light of our resolution of the above issue, we need not address the remaining issues raised by garnishee-defendant.\\nReversed and remanded to the trial court with instructions to enter judgment in favor of garnishee-defendant. We do not retain jurisdiction. Garnishee-defendant may tax costs.\\nGriffin, J., concurred.\\nThe propriety of allowing this case to go forward as something other than a medical malpractice action in the first instance is not an issue on appeal, and so we do not reach it, and express no opinion in the matter.\\nIt is beyond dispute that plaintiffs claims do not sound in malpractice. First, in ruling on the motion for summary disposition, the trial court acknowledged that there was no malpractice claim:\\nSince there is no medical malpractice claim alleged, the plaintiff has no obligation under [MCL 600.2912d] to file an affidavit of merit. Section one of that statute provides that the plaintiffs \\u2014 or, correction, the first sentence of that section says that the: \\\"plaintiff in an action alleging medical malpractice\\\" that does not fit the case at bar, because plaintiff does not allege medical malpractice. And it is in a medical malpractice claim that an affidavit of merit, by a health professional, is required.\\nSecond, in his brief on appeal, plaintiff continues to disavow that this is a malpractice claim:\\nBecause the Michigan Medical Malpractice Statutes, and all of its Tort-reform appendages, scrupulously reserves to the medical profession the protection that its members may not be held liable under it without the opinion testimony of a peer that a departure from acceptable practice had occurred, Plaintiffs Complaint avoided reliance on the Medical Malpractice Statute.\\nAs for the arguments raised by the dissent, our dissenting colleague argues that the complaint, despite plaintiffs adamant denials, sounds in medical malpractice. The dissent suggests that we should not rely on plaintiff's representations to determine if the claim sounds in malpractice. We see no justification in rejecting a party's unequivocal representation in order to find a basis to allow the party to win. This is particularly true where, as here, the party's representation was necessary to avoid summary disposition in the first place.\\nWith regard to whether garnishee-defendant breached its duty to defend, the dissent correctly observes that there is a duty to defend a suit if the claims arguably fall within the policy coverage. Radenbaugh v Farm Bureau General Ins Co of Michigan, 240 Mich App 134, 137; 610 NW2d 272 (2000). However, garnishee-defendant did just that: it defended up to the point where the trial court determined that the case did not sound in malpractice. Because, as discussed above, the policy only covered malpractice, garnishee-defendant had no duty to defend a claim not sounding in malpractice. Therefore, it did not breach its duty to defend.\"}" \ No newline at end of file diff --git a/mich/4067119.json b/mich/4067119.json new file mode 100644 index 0000000000000000000000000000000000000000..10836dc30a465fbc81e885e111eea13c61774c23 --- /dev/null +++ b/mich/4067119.json @@ -0,0 +1 @@ +"{\"id\": \"4067119\", \"name\": \"HUDSON v. MATHERS\", \"name_abbreviation\": \"Hudson v. Mathers\", \"decision_date\": \"2009-03-19\", \"docket_number\": \"Docket No. 280396\", \"first_page\": \"91\", \"last_page\": \"98\", \"citations\": \"283 Mich. App. 91\", \"volume\": \"283\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T01:03:44.069635+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: SAAD, C.J., and DAVIS and SERVITTO, JJ.\", \"parties\": \"HUDSON v MATHERS\", \"head_matter\": \"HUDSON v MATHERS\\nDocket No. 280396.\\nSubmitted January 14, 2009, at Detroit.\\nDecided March 19, 2009, at 9:30 a.m.\\nKenyatta Hudson brought an action in the Wayne Circuit Court against Marshall Mathers (also known as Eminem), Ondre Moore, D-12, Inc., and others, alleging breach of management and partnership agreements. The court, Kathleen Macdonald, J., granted Moore summary disposition of the plaintiffs breach of contract claim against Moore and granted several of the defendants summary disposition of the plaintiffs unjust enrichment claim against them. The plaintiff appealed.\\nThe Court of Appeals held:\\n1. The trial court did not err by dismissing the breach of contract claim against Moore. Under his agreement with Moore, the plaintiff was to be paid a fee for assisting Moore in making basic career decisions. Accordingly, the plaintiff qualified as a Type B personnel agency under article 10 of the Occupational Code, MCL 339.101 et seq., and was required under MCL 339.1003(1) to be licensed. The plaintiff was not licensed and did not qualify for the exemption from licensing found in MCL 339.1003(2)(d).\\n2. The agreement with Moore provided that Georgia law governed it. The parties did not raise the choice of law provision, however, until more than 3V2 years into the litigation. Generally, the parties\\u2019 choice of law should be applied if the issue is one that the parties could have resolved by an express contractual provision, but exceptions exist. The parties\\u2019 choice of law will not be followed if (1) the state chosen has no substantial relationship with the parties or the transaction or (2) there is no reasonable basis for choosing that state\\u2019s law. The law of the state chosen will also not be applied when it would be contrary to the fundamental policy of a state that has a materially greater interest than the chosen state in the determination of the particular issue involved and whose law would apply in the absence of an effective choice of law by the parties. Both parties are Michigan residents, and they executed the agreement in Michigan. The plaintiff offered no evidence that Georgia has a substantial relationship to either the parties or the transaction. The trial court properly applied Michigan law and dismissed the plaintiffs breach of contract claim against Moore because the plaintiff was not licensed as a personnel agency. Allowing the plaintiff to proceed against Moore under an equitable theory such as unjust enrichment would defeat the statutory bar to an action found in MCL 339.1019(b).\\n3. The court properly dismissed the plaintiffs unjust enrichment claim against the other members of D-12. Unjust enrichment requires a plaintiff to prove (1) the defendant\\u2019s receipt of a benefit from the plaintiff and (2) an inequity to the plaintiff resulting because the defendant retained the benefit. If that is proved, the law will imply a contract in order to prevent unjust enrichment, but only if no express contract covers the same subject matter. The express contract between the plaintiff and D-12 governed the plaintiffs entitlement to compensation for his work as a manager, so no contract may be implied under an unjust enrichment theory.\\nAffirmed.\\n1. Agency \\u2014 Personnel Agencies \\u2014 Career Assistance \\u2014 Occupational Code \\u2014 Licensure Under Occupational Code \\u2014 Actions by Personnel Agencies.\\nA person who is to receive a fee for assisting another in making basic career decisions is a Type B personnel agency and must be licensed under article 10 of the Occupational Code; article 10 prevents a personnel agency from bringing an action for compensation for performing an act without alleging and proving that the agency and its agent are licensed under the article (MCL 339.100117], 339.1003[1], 339.1019[b]).\\n2. Conflict of Laws \\u2014 Choice of Laws \\u2014 Contracts.\\nA court should apply the parties\\u2019 choice of law provision if the issue is one that the parties could have resolved by an express contractual provision; the parties\\u2019 choice of law will not be followed if the chosen state has no substantial relationship to the parties or the transaction or if there is no reasonable basis for choosing that state\\u2019s law; a chosen state\\u2019s law will also not be applied when it would be contrary to the fundamental policy of a state that has a materially greater interest than the chosen state in the determination of the particular issue involved and whose law would apply in the absence of an effective choice of law by the parties.\\n3. Equity \\u2014 Unjust Enrichment \\u2014 Contracts \\u2014 Implied Contracts.\\nIf a plaintiff proves the defendant\\u2019s receipt of a benefit from the plaintiff and an inequity resulting to the plaintiff because the defendant retained the benefits, the law will imply a contract in order to prevent unjust enrichment, but only if there is no express contract covering the same subject matter.\\nThe Sanders Law Firm, PC (by Herbert A. Sanders), for Kenyatta Hudson.\\nPlunkett Cooney (by Mary Massaron Ross, Hilary A. Dullinger, and Peter W. Peacock) for Marshall Mathers and others.\\nBefore: SAAD, C.J., and DAVIS and SERVITTO, JJ.\", \"word_count\": \"2233\", \"char_count\": \"13641\", \"text\": \"Per Curiam.\\nIn this action alleging breach of management and partnership agreements between plaintiff and the various defendants, plaintiff appeals as of right, challenging the trial court's orders granting summary disposition of his breach of contract claim against defendant Ondre Moore under MCR 2.116(C)(10) and granting summary disposition of his unjust enrichment claim against several of the defendants under MCR 2.116(C)(10). We affirm.\\nThis Court reviews de novo a circuit court's decision with regard to a motion for summary disposition. Trost v Buckstop Lure Co, Inc, 249 Mich App 580, 583; 644 NW2d 54 (2002). A motion brought under MCR 2.116(0(10) tests the factual support for a claim. Lewis v LeGrow, 258 Mich App 175, 192; 670 NW2d 675 (2003). This Court \\\" 'must consider the available pleadings, affidavits, depositions, and other documentary evidence in a light most favorable to the nonmoving party and determine whether the moving party was entitled to judgment as a matter of law.' \\\" Michigan Ed Employees Mut Ins Co v Turow, 242 Mich App 112, 114-115; 617 NW2d 725 (2000), quoting Unisys Corp v Ins Comm'r, 236 Mich App 686, 689; 601 NW2d 155 (1999).\\nI. PLAINTIFF'S OBLIGATION TO OBTAIN A LICENSE\\nPlaintiff argues that the trial court erred by dismissing his breach of contract claim against Moore. We disagree.\\nThe state of Michigan mandates licensing of all personnel agencies pursuant to MCL 339.1003(1), which provides: \\\"A person shall not open, operate, or maintain a personnel agency in this state without first obtaining the appropriate license from the department.\\\"\\nMCL 339.1019(b) provides:\\nA personnel agency, or any licensed agent or other agent or employee of a personnel agency shall not do any of the following:\\n(b) Bring or maintain an action in a court of this state for the collection of compensation for the performance of an act or contract for services as a personnel agency without alleging and proving that the agency and its agent were licensed under this article during the performance of the act or contract.\\nUnder the Occupational Code, MCL 339.101 et seq., there are two types of personnel agencies. A \\\"Type A\\\" personnel agency is\\na person who is engaged in the business or profession of serving, assisting, or in any way aiding a client seeking employment or making basic career decisions, who puts a client in direct contact with employers, and who receives a fee from the client for the services rendered or offered to he rendered. [MCL 339.1001(k).]\\nA \\\"Type B\\\" personnel agency is\\na person who is engaged in the business or profession of serving, assisting, or in any way aiding or consulting with a client to make basic career decisions and who receives a fee from the client for the services rendered or offered to be rendered. [MCL 339.1001\\u00ae.]\\nThe two categories of personnel agencies were created in 1992, as part of a revision of article 10 of the Occupational Code by 1992 PA 253. Before the revision, there were five classes of employment agencies, with varying degrees of regulation. The 1992 revision replaced the five classes with the two categories of \\\"personnel\\\" agencies: (1) Type A agencies, which are employment agencies that place clients in direct contact with employers, and (2) Type B agencies, which are more in the nature of consulting agencies and assist clients in making basic career decisions.\\nIn this case, the management agreement states that plaintiff was to provide Moore with \\\"advice, counsel and guidance in the development of [his] career as an artist in the entertainment and entertainment-related industries\\\" and to advise and counsel Moore on various aspects of his career. Thus, the agreement was one whereby plaintiff agreed to assist Moore in making basic career decisions, and plaintiff was to receive a fee for those services. Accordingly, plaintiff qualifies as a Type B personnel agency, as defined in MCL 339.1001(Z), and was required to be licensed under MCL 339.1003(1).\\nWe disagree with plaintiffs claim that he is exempt from licensure under MCL 339.1003(2)(d), which provides an exemption for the\\nbusiness of procuring, offering, promising, promoting, or attempting to provide an engagement for an athletic event, a circus, concert, vaudeville, theatrical, or other entertainment, or of giving information as to where an engagement may be procured or provided for an actor, artist, athlete, entertainer, or performer in an athletic event, a circus, vaudeville, theatrical, or other entertainment.\\nThat exemption is not applicable here because plaintiffs contract was not a contract to procure, offer, promise, or promote any engagements for Moore, nor was plaintiff in the business of giving information about where engagements could be procured or provided for Moore. Indeed, the contract provides:\\nArtist [Moore] acknowledges that Manager [plaintiff] is not an employment agency or theatrical agent, that Manager has not offered or attempted or promised to obtain, seek or procure employment or engagements for Artist, and that manager is not obligated, authorized, licensed or expected to do so.\\nII. CHOICE OF LAW\\nIn a further attempt to avoid application of article 10, plaintiff relies on \\u00b6 14 of the contract to argue that it is not governed by Michigan law. Paragraph 14 provides:\\nJurisdiction. Notwithstanding any subsequent agreements entered into by Artist, Artist agrees that the validity, construction and effect of this agreement shall be governed by the laws of the State of Georgia.\\nWhen determining the applicable law, the expectations of the parties must be balanced with the interests of the states. Martino v Cottman Transmission Systems, Inc, 218 Mich App 54, 60; 554 NW2d 17 (1996). The parties' choice of law should be applied if the issue is one the parties could have resolved by an express contractual provision. However, there are exceptions. The parties' choice of law will not be followed if (1) the chosen state has no substantial relationship to the parties or the transaction or (2) there is no reasonable basis for choosing that state's law. Also, the chosen state's law will not be applied when it would be contrary to the fundamental policy of a state that has a materially greater interest than the chosen state in the determination of the particular issue and whose law would be applicable in the absence of an effective choice of law by the parties. Id. at 60-61.\\nBoth parties are Michigan residents, and the contract was executed in Michigan. Plaintiff did not offer any evidence showing that Georgia has a substantial relationship to either the parties or the transaction. Moreover, plaintiff filed this case in Michigan, and this case proceeded in Michigan for more than three years before the choice of law issue was ever raised. In response to defendants' prior motion for partial summary disposition (based in part on the statute of limitations), plaintiff cited Michigan law and at no time claimed that Georgia law governed the parties' agreement. It was not until more than 3V2 years into litigation, when another motion for summary disposition was filed, that the choice of Georgia law in the parties' contract was mentioned. Accordingly, the trial court did not err by refusing to apply Georgia law.\\nFor these reasons, the trial court properly dismissed plaintiffs breach of contract claim against Moore because plaintiff was not licensed as a personnel agency. Nor could plaintiff proceed against Moore under an equitable theory, such as unjust enrichment, because doing so would defeat the statutory bar to an action provided by MCL 339.1019(b). See Stokes v Millen Roofing Co, 466 Mich 660, 671-673; 649 NW2d 371 (2002).\\nIII. UNJUST ENRICHMENT\\nThe trial court also properly dismissed plaintiffs unjust enrichment claim against the other members of defendant D-12, Inc. Unjust enrichment requires a plaintiff to prove (1) the receipt of a benefit by the defendant from the plaintiff and (2) an inequity resulting to the plaintiff because of the retention of the benefit by the defendant. Belle Isle Grill Corp v Detroit, 256 Mich App 463, 478; 666 NW2d 271 (2003). If this is established, the law will imply a contract in order to prevent unjust enrichment. Id. However, a contract will be implied only if there is no express contract covering the same subject matter. Id.\\nThere was an express contract in place between plaintiff and D-12 that governed plaintiffs entitlement to compensation for his work as a manager. Accordingly, a contract may not be implied under a theory of unjust enrichment.\\nAffirmed.\"}" \ No newline at end of file diff --git a/mich/4079565.json b/mich/4079565.json new file mode 100644 index 0000000000000000000000000000000000000000..a83b3ff6045d7fc115ed717d2df98eff01fd8f42 --- /dev/null +++ b/mich/4079565.json @@ -0,0 +1 @@ +"{\"id\": \"4079565\", \"name\": \"ANZALDUA v. NEOGEN CORPORATION\", \"name_abbreviation\": \"Anzaldua v. Neogen Corp.\", \"decision_date\": \"2011-05-17\", \"docket_number\": \"Docket No. 296978\", \"first_page\": \"626\", \"last_page\": \"638\", \"citations\": \"292 Mich. App. 626\", \"volume\": \"292\", \"reporter\": \"Michigan appeals reports; cases decided in the Michigan Court of Appeals.\", \"court\": \"Michigan Court of Appeals\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T01:37:21.027042+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: OWENS, P.J., and O\\u2019CONNELL and METER, JJ.\", \"parties\": \"ANZALDUA v NEOGEN CORPORATION\", \"head_matter\": \"ANZALDUA v NEOGEN CORPORATION\\nDocket No. 296978.\\nSubmitted May 13, 2011, at Lansing.\\nDecided May 17, 2011, at 9:20 a.m.\\nSharon Anzaldua brought an action in the Ingham Circuit Court against Neogen Corporation, alleging retaliatory discharge in violation of Michigan\\u2019s public policy. In May 2007, plaintiff had cooperated with a state official who performed a boiler inspection, which led to a citation being issued to defendant. Plaintiff was terminated in June 2007. Plaintiff filed her complaint in May 2009. Defendant moved for summary disposition under MCR 2.116(C)(7) (statute of limitations), (C)(8) (failure to state a claim), and (C)(10) (no genuine issue of material fact). The court, Rosemarie E. Aquilina, J., granted the motion, concluding that the gravamen of plaintiffs complaint essentially alleged that she had been engaged in activity protected under the Whistleblowers\\u2019 Protection Act (WPA), MCL 15.361 et seq. Therefore, the court concluded that the WPA provided the exclusive remedy for plaintiffs claim and that her failure to bring her claim within the 90-day period of limitations set forth in MCL 15.363(1) required that summary disposition be granted in defendant\\u2019s favor. Plaintiff appealed. Defendant cross-appealed, arguing that the trial court had improperly made a finding of fact when deciding the motion for summary disposition.\\nThe Court of Appeals held:\\n1. The WPA provides employees protection from discharge from employment or other retaliation when, among other things, the employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body. The term \\u201cinquiry\\u201d encompasses an administrative search. Thus, plaintiff was engaged in protected activity under the WPA when she cooperated with a state officer performing a boiler inspection, and her claim was subject to the WPA\\u2019s exclusive remedy. Plaintiffs attempt to characterize her claim as one for retaliatory termination in violation of public policy, rather than a claim under the WPA, failed. Thus, plaintiff was bound by the 90-day limitations period set forth in the WHPA, and the trial court did not err by granting summary disposition in defendant\\u2019s favor.\\n2. The trial court\\u2019s decision to grant summary disposition was not premature even though discovery was not complete because plaintiff did not demonstrate a fair likelihood that further discovery could reveal anything to refute the trial court\\u2019s correct conclusion that plaintiffs exclusive remedy was under the WPA.\\n3. Defendant argued on cross-appeal that the trial court improperly made a factual finding that plaintiff was terminated because of her participation in the boiler inspector\\u2019s investigation. While a trial court may not make findings of fact or credibility determinations when deciding a motion for summary disposition, MCR 2.116(C)(8) requires a trial court to accept all well-pleaded factual allegations as true. Thus, it was apparent that the challenged statement in the trial court\\u2019s order was a summary of plaintiffs allegations rather than an improper finding of fact. Defendant failed to establish that the trial court\\u2019s statement was improper.\\nAffirmed.\\n1. Statutes \\u2014 Whistleblowers\\u2019 Protection Act \\u2014 Protected Activity \\u2014 Inquiry.\\nThe Whistleblower\\u2019s Protection Act provides employees protection from discharge from employment or other retaliation when, among other things, the employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body; an inquiry includes an administrative search (MCL 15.362).\\n2. Statutes \\u2014 Whistleblowers\\u2019 Protection Act \\u2014 Exclusive Remedy \\u2014 Period of Limitations.\\nA plaintiff asserting a claim that arises from circumstances that establish a claim for relief under the Whistleblower\\u2019s Protection Act is subject to that act\\u2019s exclusive remedy and cannot evade the act\\u2019s 90-day limitations period by recasting the claim as one for retaliatory discharge in violation of public policy.\\nPitt McGehee Palmer Rivers & Golden, PC (by Robert W. Palmer and Beth M. Rivers), for Sharon Anzaldua.\\nOade, Stroud & Kleiman, P.C. (by Ted W. Stroud), for Neogen Corporation.\\nBefore: OWENS, P.J., and O\\u2019CONNELL and METER, JJ.\", \"word_count\": \"3583\", \"char_count\": \"22855\", \"text\": \"PER CURIAM.\\nPlaintiff appeals as of right the trial court's order granting defendant's motion for summary disposition under MCR 2.116(C)(7) (statute of limitations), (C)(8) (failure to state a claim), and (C)(10) (no genuine issue of material fact). Defendant cross-appeals, arguing that the trial court made an improper finding of fact when deciding its motion. We affirm.\\nI. FACTS AND PROCEEDINGS\\nThis action arose from defendant's termination of plaintiffs employment in June 2007. In May and June 2007, defendant was in the process of establishing a laboratory for the manufacture of an equine botulism vaccine. The manufacture of this vaccine is regulated by federal and state agencies to avoid safety hazards and security breaches pertaining to the botulism organism used in the manufacturing process. Plaintiff had been selected as the Select Agent Program Alternate Responsible Official in defendant's Lansing facility. Under applicable regulations, no one could be admitted to the restricted laboratory areas (the Bot suite) without the presence and authorization of plaintiff or the primary responsible official. However, these restrictions were not to be in effect until defendant actually received the botulism agent in October 2007.\\nPlaintiff alleged that she was terminated from her employment with defendant in June 2007 in retaliation for her compliance with a state Department of Labor deputy boiler inspector, A1 Ladd. Plaintiff had escorted Ladd through the facility when he arrived for an unannounced inspection on May 3, 2007. The inspector discovered an unregistered boiler in the facility and issued a citation requiring defendant to bring the boiler into conformity with state regulations. When the inspector returned on May 14, 2007, defendant's mainte nance manager, A1 Meredith, informed plaintiff that Meredith, not plaintiff, would escort Ladd through the facility for the inspection. Meredith instructed plaintiff not to talk to Ladd and to channel all communications through Meredith. Nonetheless, plaintiff accompanied Ladd to the Bot suit and cooperated with him when he asked questions about another unregistered boiler.\\nPlaintiff filed this action in May 2009, alleging a claim for retaliatory discharge in violation of public policy because she was terminated for complying with her statutory duty to grant Ladd access to the facility to inspect the boilers. Defendant moved for summary disposition under MCE 2.116(C)(7), (8), and (10), arguing that there was no genuine issue of material fact that plaintiffs claim arose under the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq., that plaintiff had failed to state a cognizable claim independent of the WPA, and that plaintiffs claim was untimely under the WPA's 90-day limitations period, MCL 15.363. Plaintiff denied that she was engaged in protected activity under the WPA and maintained that she had pleaded a valid claim for retaliatory discharge contrary to public policy. The trial court agreed with defendant and granted its motion.\\nII. STANDARD OF REVIEW\\nThis Court reviews de novo a trial court's ruling on a motion for summary disposition. Doe v Roman Catholic Archbishop of the Archdiocese of Detroit, 264 Mich App 632, 638; 692 NW2d 398 (2004). When reviewing a motion under MCE 2.116(C)(7), a reviewing court must consider all affidavits, pleadings, and other documentary evidence submitted by the parties and construe the pleadings and evidence in favor of the nonmoving party. Id. \\\"Absent a disputed question of fact, the determina tion whether a cause of action is barred by a statute of limitation is a question of law that this Court reviews de novo.\\\" Id.\\nA motion brought under MCR 2.116(C)(8) tests whether the complaint states a claim as a matter of law. Teel v Meredith, 284 Mich App 660, 662; 774 NW2d 527 (2009). In reviewing the motion, the court accepts as true all well-pleaded allegations and construes them in a light most favorable to the nonmoving party. Id. The motion should be granted if no factual development could possibly justify discovery. Id.\\nA motion under MCR 2.116(C)(10) tests the factual support for a claim and should be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Driver v Naini, 287 Mich App 339, 344; 788 NW2d 848 (2010). The nonmoving party may not rest on the allegations in the pleadings, but must set forth, through documentary evidence, specific facts demonstrating a genuine issue for trial. Id.\\nIII. ANALYSIS\\nThe WPA provides a remedy for an employee who suffers retaliation for reporting or planning to report a suspected violation of a law, regulation, or rule to a public body. MCL 15.362; MCL 15.363; Shallal v Catholic Social Servs of Wayne Co, 455 Mich 604, 610; 566 NW2d 571 (1997). The WPA provides that an employer shall not discharge or otherwise retaliate against an employee because the employee \\\"reports or is about to report... a violation or a suspected violation of a law or regulation\\\" or because \\\"an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body.\\\" MCL 15.362. A prima facie case under the WPA arises when (1) the plaintiff was engaged in protected activity as defined by the act, (2) the plaintiff was discharged or discriminated against, and (3) a causal connection exists between the protected activity and the adverse employment decision. Shaw v City of Ecorse, 283 Mich App 1, 8; 770 NW2d 31 (2009).\\nThe underlying purpose of the WPA is protection of the public. Dolan v Continental Airlines/Continental Express, 454 Mich 373, 378; 563 NW2d 23 (1997). The statute \\\"meets this objective by protecting the whistle-blowing employee and by removing barriers that may interdict employee efforts to report violations or suspected violations of the law.\\\" Id. at 378-379. The WPA is a remedial statute and must be liberally construed to favor the persons that the Legislature intended to benefit. Chandler v Dowell Schlumberger, Inc, 456 Mich 395, 406; 572 NW2d 210 (1998). The WPA provides the exclusive remedy for such retaliatory discharge and consequently preempts common-law public-policy claims arising from the same activity. Dudewicz v Norris Schmid, Inc, 443 Mich 68, 70, 78-79; 503 NW2d 645 (1993), overruled in part on other grounds by Brown v Detroit Mayor, 478 Mich 589, 595 n 2 (2007). However, if the WPA does not apply, it provides no remedy and there is no preemption. Driver v Hanley (After Remand), 226 Mich App 558, 566; 575 NW2d 31 (1997).\\nThe WPA imposes a 90-day limitations period for a civil action arising from a violation of the act. MCL 15.363(1). In determining whether a statute of limitations applies, this Court looks to the true nature of a complaint, reading the complaint as a whole and looking beyond the parties' labels to determine the exact nature of the claim. Adams v Adams (On Reconsideration), 276 Mich App 704, 710-711; 742 NW2d 399 (2007). Accordingly, a plaintiff asserting a claim for termination in violation of public policy that arises from circumstances that establish a claim for relief under the WPA will be subject to the WPA's exclusive remedy and will not be permitted to evade the 90-day limitations period by recasting the claim as a public-policy claim.\\nPlaintiff argues that she was not engaged in protected activity under the WPA with respect to the boiler inspection because she was not requested by a public body to participate in an \\\"investigation\\\" or \\\"inquiry\\\" as those terms are used in the WPA. The WPA defines a \\\"public body\\\" as including \\\"[a] state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of state government.\\\" MCL 15.361(d)(\\u00bf). The deputy boiler inspector, as a state officer, thus falls within the definition of a public body under the WPA. However, plaintiff characterizes Ladd's boiler inspection as a \\\"routine inspection\\\" that cannot be classified as an investigation or inquiry under the WPA. The WPA does not define the terms \\\"investigation\\\" or \\\"inquiry.\\\" Terms that are not defined in a statute must be given their plain and ordinary meanings, and it is appropriate to consult a dictionary for definitions. Halloran v Bhan, 470 Mich 572, 578; 683 NW2d 129 (2004).\\nBlack's Law Dictionary (8th ed), p 844, defines \\\"investigate\\\" as \\\"[t]o inquire into (a matter) systematically\\\" or \\\"[t]o make an official inquiry.\\\" It defines \\\"inquiry\\\" in the context of parliamentary law as \\\"[a] request for information, either procedural or substantive\\\" and in the context of international law as fact-finding. Id. at 808. Random House Webster's College Dictionary (2000) defines \\\"inquiry\\\" as \\\"1. a seeking or request for truth, information, or knowledge. 2. an investigation, as into an incident. 3. a question; query.\\\" The general dictionary definition of \\\"inquiry\\\" meshes with the legal dictionary's definition of the term \\\"administrative search,\\\" which is defined in Black's Law Dictionary (8th ed), p 1378, as \\\"[a] search of public or commercial premises carried out by a regulatory authority for the purpose of enforcing compliance with health, safety, or security regulations.\\\" The activity of an administrative search thus involves an inquiry as defined in Random House Webster's College Dictionary as a seeking or request for truth, information, or knowledge. Reading these definitions together, and in view of the WPA's delineation of protected activity, it is apparent that the term \\\"inquiry\\\" in the WPA encompasses an administrative search such as the inspection carried out here by the boiler inspector. Thus, plaintiff was engaged in protected activity when she cooperated with Ladd's inspection, and her claim was therefore subject to the WPA's exclusive remedy. Dudewicz, 443 Mich at 70. Accordingly, plaintiff failed to plead a cognizable public-policy claim independent of the WPA.\\nPlaintiffs reliance on Messenger v Dep't of Consumer & Indus Servs, 238 Mich App 524; 606 NW2d 38 (1999), in support of her argument that the boiler inspection was not an investigation within the meaning of the WPA is misplaced. In Messenger, the plaintiff, a licensed physician, was prosecuted for and acquitted of manslaughter for withdrawing life support from his infant son. Id. at 527. The plaintiff presented a request under the Freedom of Information Act (FOIA), MCL 15.321 et seq., for information that the defendant, the Department of Consumer and Industry Services, had compiled regarding the plaintiffs prosecution. Messenger, 238 Mich App at 527. The defendant contended that the information was exempt from disclosure under the Public Health Code (PHC), specifically MCL 333.16238(1), which classified as confidential any information obtained in an investigation before the issuance of an administrative complaint. Messenger, 238 Mich App at 527-528. This Court held that the FOIA exemption did not apply because there had not been an investigation within the meaning of MCL 333.16238(1), explaining:\\nThe PHC does not expressly define the term \\\"investigation.\\\" In the absence of a statutory definition of a term, a court may consult dictionary definitions to determine the common meaning of a word. Popma v Auto Club Ins Ass'n, 446 Mich 460, 470; 521 NW2d 831 (1994); Weisman v US Blades, Inc, 217 Mich App 565, 568; 552 NW2d 484 (1996). Random House Webster's College Dictionary (2d ed.), p 668, defines an \\\"investigation\\\" as \\\"the act or process of investigating or the condition of being investigated\\\" or \\\"a searching inquiry for ascertaining facts; detailed or careful examination.\\\" Similarly, to \\\"investigate\\\" is \\\"to search or examine into the particulars of; examine in detail.\\\" Id. Further, \\u00a7 16221 and 16233 of the PHC, MCL 333.16221, 333.16233, instruct that, during the course of an investigation, the department may hold hearings, take testimony, and administer written, oral, and practical tests to a licensee as investigatory tools.\\nApplying the general principles of statutory construction and the common meaning of \\\"investigation\\\" to the facts of this case, we find that defendant's conduct did not amount to an \\\"investigation\\\" as contemplated by the PHC. Defendant did not engage in a searching inquiry for ascertaining facts, nor did it conduct a detailed or careful examination of the events surrounding plaintiffs alleged misconduct. Rather, by its own admission, defendant conducted only an \\\"administrative review,\\\" a \\\"monitoring and a preliminary compilation of information,\\\" a \\\"preliminary review,\\\" and a \\\"preliminary information gathering process . limited to non-intrusive measures\\\" that preceded a \\\"formal field investigation.\\\" Indeed, defendant's passive efforts at collecting information concerning the manslaughter charges filed against plaintiff consisted of nothing more than obtaining documents from public agencies and monitoring the criminal proceeding. On this record, we find that defendant's conduct is properly classified as that which precedes a formal \\\"investigation\\\" and does not rise to the level of an \\\"investigation\\\" as contemplated by the PHC. [Id. at 534-535 (citations omitted).]\\nPlaintiff contends that the boiler inspector's visits did not rise to the level of an investigation because they did not involve \\\"a searching inquiry for ascertaining facts\\\" or \\\"a detailed or careful examination of the events surrounding\\\" alleged misconduct. However, we are not persuaded that this Court's construction of the term \\\"investigation\\\" as used in the PHC, MCL 333.16238(1), requires a similarly restrictive interpretation of the terms \\\"investigation\\\" and \\\"inquiry\\\" as used in the WPA. Whereas the WPA's inclusions of protected persons must be construed broadly, Chandler, 456 Mich at 406, exemptions from disclosure under the FOIA must be narrowly construed, Booth Newspapers, Inc v Univ of Mich Bd of Regents, 444 Mich 211, 232; 507 NW2d 422 (1993). Moreover, the WOPA's protection is not limited only to persons who participate in investigations, but extends to employees who are requested by a public body to participate in \\\"an investigation, hearing, or inquiry held by that public body.\\\" MCL 15.362 (emphasis added). Indeed, the Messenger Court's construction of the term \\\"investigation\\\" as used in the PHC builds on the term \\\"inquiry\\\"; an investigation encompasses \\\"a searching inquiry for ascertaining facts; detailed or careful examination.\\\" This is consistent with the Black's Law Dictionary definition of \\\"investigation\\\" as including an \\\"official inquiry\\\" and to \\\"systematically\\\" inquire into a matter. Read together, these definitions suggest a hierarchy of governmental acquisition of information, with probing or formal investigations being required to apply the FOIA exemption and with less intrusive and less formal inquiries being sufficient to come within the scope of the WPA.\\nThe boiler inspector's inspection fits the definition of \\\"inquiry\\\" in the WPA. Accordingly, an employee who participates in an investigation or inquiry, which includes an administrative search or inspection, is a protected person under the WPA. Consequently, plaintiffs action was subject to the WPA's exclusive remedy and was therefore barred by the 90-day limitations period in that act. Dudewicz, 443 Mich at 70; MCL 15.363.\\nAccordingly, summary disposition was proper under MCR 2.116(C)(7), because plaintiffs claim was untimely, and also under MCR 2.116(C)(8) and (10), because plaintiff failed to plead or support a claim that was not subject to the WPA's exclusive remedy. Because we conclude that the WPA was plaintiffs exclusive remedy, it is unnecessary to consider the merits of plaintiffs public-policy theory.\\nWe also disagree with plaintiffs argument that summary disposition was premature because discovery was not yet complete. \\\"A motion under MCR 2.116(C)(10) is generally premature if discovery has not been completed unless there is no fair likelihood that further discovery will yield support for the nonmoving party's position.\\\" Liparoto Constr, Inc v Gen Shale Brick, Inc, 284 Mich App 25, 33-34; 772 NW2d 801 (2009). Plaintiff argues that further discovery could reveal evidence to support her claim that her termination was motivated by her cooperation with the boiler inspector. However, that was not the basis for the trial court's summary disposition decision. Plaintiff has not demonstrated a fair likelihood that further discovery could reveal anything to refute the trial court's correct conclusion that plaintiffs exclusive remedy was under the WPA and her claim was thus subject to that act's 90-day limitations period.\\nIV DEFENDANT'S CROSS-APPEAL\\nDefendant argues on cross-appeal that the trial court improperly made a finding of fact that plaintiff was terminated because of her participation in the boiler inspector's investigation. Defendant challenges the following emphasized statement that appears in both the trial court's original and amended opinions:\\nPlaintiff was requested by a public body to participate in an investigation regarding the boilers in the laboratory. Because Plaintiff's employment was terminated due to her participation in the investigation, her exclusive remedy was under the WPA. Plaintiff waited almost two years to file her claim and is therefore, barred by the 90-day statute of limitations for a WPA claim.\\nA court may not make a finding of fact or weigh credibility when ruling on a motion for summary disposition. Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). Read in context, however, it is apparent that the challenged statement was not an improper finding of fact, but a summary of plaintiffs allegations. When deciding a motion for summary disposition under MCR 2.116(C)(8), a court must accept as true all well-pleaded allegations. Teel, 284 Mich App at 662. Similarly, when deciding a motion under MCR 2.116(C)(10), a court must view the evidence and all reasonable inferences arising from the evidence in a light most favorable to the nonmoving party. Driver, 287 Mich App at 344.\\nPlaintiff alleged that her cooperation with Ladd was the reason defendant terminated her employment. For purposes of defendant's motion, the trial court was obligated to accept that allegation as true to determine whether the gravamen of plaintiffs complaint involved a termination for participating in an investigation or inquiry, which would bring her claim within the WPA. Viewed in this manner, defendant has failed to establish that the trial court's statement was improper.\\nAffirmed.\\nOWENS, EJ., and O'CONNELL and METER, JJ., concurred.\"}" \ No newline at end of file diff --git a/mich/4112644.json b/mich/4112644.json new file mode 100644 index 0000000000000000000000000000000000000000..1547ef3f6ef5fc5abe0dd1054467b4ac0d8a330f --- /dev/null +++ b/mich/4112644.json @@ -0,0 +1 @@ +"{\"id\": \"4112644\", \"name\": \"COOPER v. AUTO CLUB INSURANCE ASSOCIATION\", \"name_abbreviation\": \"Cooper v. Auto Club Insurance\", \"decision_date\": \"2008-06-25\", \"docket_number\": \"Docket No. 132792\", \"first_page\": \"399\", \"last_page\": \"418\", \"citations\": \"481 Mich. 399\", \"volume\": \"481\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T01:21:22.783835+00:00\", \"provenance\": \"CAP\", \"judges\": \"Taylor, C.J., and Corrigan and Young, JJ., concurred with Markman, J.\", \"parties\": \"COOPER v AUTO CLUB INSURANCE ASSOCIATION\", \"head_matter\": \"COOPER v AUTO CLUB INSURANCE ASSOCIATION\\nDocket No. 132792.\\nArgued January 8, 2008\\n(Calendar No. 2).\\nDecided June 25, 2008.\\nAmended, 482 Mich_.\\nAmyruth R. and Loralee A. Cooper, by their next friend and mother, Sharon L. Strozewski, brought a common-law fraud action in the Washtenaw Circuit Court against the Auto Club Insurance Association, plaintiffs\\u2019 automobile insurer, after they were injured in a vehicular accident in 1987. The action alleged that the defendant had fraudulently induced Strozewski, who had been providing in-home attendant care for her injured daughters since the accident, to accept an unreasonably low compensation rate for her services. After the court, Donald E. Shelton, J., denied each of defendant\\u2019s three motions for summary disposition on the issue of liability, the parties reached an agreement regarding damages, and the trial court entered a judgment for plaintiffs in accordance with the parties\\u2019 agreement, as well as an order approving a partial settlement. Defendant appealed as of right, challenging only its liability for damages incurred more than one year before plaintiffs filed their complaint under the one-year-back rule of the no-fault act, MCL 500.3145(1). The Court of Appeals, Murphy, EJ., and Meter and Davis, JJ., ruled that the plaintiffs\\u2019 common-law fraud claim was merely a no-fault action couched in fraud terms and reversed in part and remanded for an order of partial summary disposition in the defendant\\u2019s favor under the one-year-back rule. Unpublished opinion of the Court of Appeals, issued November 21, 2006 (Docket No. 261736). The plaintiffs sought leave to appeal, which the Supreme Court granted. 478 Mich 861 (2007).\\nIn an opinion by Justice Markman, joined by Chief Justice Taylor and Justices Corrigan, and Young, the Supreme Court held-.\\nA common-law action for fraud is not subject to the one-year-back rule because the one-year-back rule applies only to actions for recovery of personal protection insurance (FIP) benefits payable under the no-fault act for accidental bodily injury, and a fraud action is not a no-fault action but, rather, is an independent and distinct action for recovery of damages under the common law for losses incurred as a result of an insurer\\u2019s fraudulent conduct.\\n1. A fraud action is conceptually distinct from a no-fault action because a fraud action requires an insured to prove several elements that are different from those required in a no-fault action; a fraud action accrues at a different time than a no-fault action; and a fraud action permits an insured to recover a wide range of damages, such as attorney fees, damages for emotional distress, and exemplary damages, that are not available in a no-fault action. Unlike a no-fault claim, a fraud claim does not arise from an insurer\\u2019s mere omission to perform a contractual or statutory obligation; rather, it arises from the insurer\\u2019s breach of its separate and independent duty not to deceive its insureds.\\n2. The fact that the plaintiffs sought damages from the fraudulent conduct that were defined in terms of additional PIP benefits did not transform their fraud claim into a no-fault claim. When an insured\\u2019s claim arises not out of the insurer\\u2019s mere failure to pay no-fault benefits but, instead, out of the insurer\\u2019s fraudulent misrepresentations, which might have ultimately led to payment of reduced no-fault benefits to the insureds, the courts are faced with a fraud claim as opposed to a no-fault claim.\\n3. When a plaintiff states a fraud cause of action against an insurer, a court need not consider an equitable exception to the application of the one-year-back rule because the no-fault rules simply do not apply.\\n4. To limit attempts to circumvent the application of the one-year-back rule, prevent wasteful or frivolous litigation, and maintain the integrity of both the no-fault law and the common-law fraud cause of action, trial courts should exercise special care in assessing these types of fraud claims.\\nReversed and remanded to the circuit court for further proceedings.\\nJustice Cavanagh concurred in the result only.\\nJustice Weaver, joined by Justice Kelly, concurred in the result only, agreeing that the one-year-back rule applies only to actions seeking payment of no-fault personal protection insurance benefits and that a fraud action is not a no-fault action but, rather, an independent action for recovery of damages payable under the common law for losses incurred as a result of the insurer\\u2019s fraudulent conduct.\\nFraud \\u2014 Insurance \\u2014 No-Fault \\u2014 Personal Protection Insurance \\u2014 One-Year-Back Rule.\\nA common-law action against an insurer for fraud is not subject to the one-year-back rule that applies to actions seeking payment of no-fault personal protection insurance benefits (MCL 500.3145[1]).\\nLogeman, Iafrate & Pollard, PC. (by Robert E. Loge-man and James A. Iafrate), for the plaintiffs.\\nSchoolmaster, Horn, Killeen, Siefer, Arene & Hoehn (by Gregory Vantongeren) and Zanetti, John & Brown, EC. (by R. Michael John) (Gross, Nemeth & Silverman, P.L.C., by James G. Gross, of counsel), for the defendant.\\nAmicus Curiae:\\nThomas A. Biscup for the Michigan Association for Justice.\", \"word_count\": \"5908\", \"char_count\": \"36265\", \"text\": \"MARKMAN, J.\\nAt issue is whether plaintiffs' common-law cause of action for fraud is subject to the one-year-back rule of MCL 500.3145(1). Because the one-year-back rule only applies to actions brought under the no-fault act, and because a fraud action is not a no-fault action, i.e., an \\\"action for recovery of personal protection insurance benefits payable under [the no-fault act] for accidental bodily injury,\\\" MCL 500.3145(1), but instead is an independent and distinct action for recovery of damages payable under the common law for losses incurred as a result of the insurer's fraudulent conduct, we hold that a common-law cause of action for fraud is not subject to the one-year-back rule. Therefore, we reverse in part the judgment of the Court of Appeals and remand the case to the Court of Appeals for it to address the remaining issues raised by the parties.\\nI. FACTS AND PROCEDURAL HISTORY\\nIn January 1987, plaintiffs Amyruth and Loralee Cooper sustained severe brain injuries in an automobile accident that occurred while they were passengers in a car driven by their mother, Sharon Strozewski. From the time they were discharged from the hospital in October 1987, both sisters have required 24-hour attendant care. By the fall of 1989, Loralee did not need as much nursing care, but still needed attention beyond what a babysitter could provide. Amyruth has required continuous skilled nursing care, which has been provided through an agency paid by defendant, plaintiffs' automobile insurer.\\nAt the time of the accident, Strozewski was working at GTE, earning approximately $50 a day. In the fall of 1989, defendant's claims representative, Jim Hankamp, suggested to Strozewski that she quit her job and stay at home to care for Loralee full-time. Defendant offered to pay Strozewski $50 a day, and she accepted by signing an agreement. In September 1991, the parties agreed to increase the payments to Strozewski to $75 a day. In October 1998, the rate was effectively increased to $6.50 an hour and, after that, it progressively increased up to $10 an hour by October 2000. According to defendant, as of December 26, 2003, defendant had paid more than $5.6 million in personal protection insurance (PIP) benefits under the no-fault act for the girls' care.\\nPlaintiffs filed this lawsuit in 2003, alleging that defendant had failed to pay all the PIP benefits that were due under the no-fault act because it underpaid Strozewski for the attendant care she had provided to her daughters at home over the years. Defendant filed a motion for partial summary disposition arguing, among other things, that because the amended Revised Judi cature Act (RJA), MCL 600.5851(1), states that the minority/insanity tolling provision applies only to actions brought under this act, the saving provision does not apply to no-fault actions to toll the one-year-back rule of MCL 500.3145(1). The trial court denied the motion, and the Court of Appeals denied defendant's application for leave to file an interlocutory appeal. Unpublished order of the Court of Appeals, entered July 1, 2004 (Docket No. 254659). Two weeks later, the Court of Appeals issued its opinion in Cameron v Auto Club Ins Ass'n, 263 Mich App 95; 687 NW2d 354 (2004), which held that the minority/insanity provision of MCL 600.5851(1) applies only to actions filed under the RJA and, therefore, it does not toll an action brought under the no-fault act. Defendant filed an application for leave to appeal in this Court, which was denied, 471 Mich 915 (2004), as was defendant's motion for reconsideration. 471 Mich 956 (2004).\\nIn August 2004, following the Court of Appeals decision in Cameron, plaintiffs amended their complaint to assert a new cause of action for fraud. Plaintiffs alleged that defendant had fraudulently induced Strozewski to accept an unreasonably low compensation rate for her in-home attendant care services. Specifically, plaintiffs alleged that defendant had committed fraud by telling Strozewski: (1) that if she did not quit her job and accept $50 a day for providing 24-hour attendant care for Loralee, she would be personally responsible for paying for Loralee's nursing care; (2) that she had a parental obligation to provide attendant care for her children, which reduced defendant's legal obligation to pay attendant care benefits, and that if she did not agree to take care of Loralee for $50 a day, Loralee would have to be institutionalized; (3) that the attendant-care rate was not negotiable and that a higher rate was not available even though, in reality, defendant was paying other insureds as much as $7 an hour for providing similar attendant care; (4) that she was required to sign a contract before she could recover continuing no-fault benefits; (5) that case-management expenses were paid at the same rate as attendant-care benefits; and (6) that attendant care could not be paid to family members at the market rate or agency rate, i.e., the rate normally paid by the insurance agency to other caregivers. Plaintiffs allege that, as a result of defendant's fraud, they sustained the following damages: (1) inadequate payments for attendant-care services; (2) loss of payments for case-management expenses, i.e., expenses incurred for the services rendered by a case manager; (3) loss of payments for room and board expenses; and (4) inadequate payments of no-fault benefits.\\nWhile the denial of defendant's first motion for partial summary disposition was still on appeal, defendant filed a second motion for partial summary disposition, arguing that Strozewski could not recover in-home attendant-care benefits for services rendered before the filing of the complaint. The trial court denied the motion, and defendant did not file an interlocutory appeal.\\nSeveral months later, defendant filed a third motion for partial summary disposition, arguing that, under MCL 500.3145(1), plaintiffs could not recover benefits for any services that were rendered more than one year before the filing of the original complaint. The trial court denied the motion. Defendant filed an interlocutory application for leave to appeal, which was denied by the Court of Appeals. Unpublished order of the Court of Appeals, entered January 12, 2005 (Docket No. 259729). Defendant then filed a second application for leave to appeal in this Court, which was denied. 472 Mich 858 (2005).\\nAfter this Court denied leave to appeal, the parties stipulated the entry of a judgment that resolved their differences over the amounts of damages that plaintiffs would be able to recover over the various periods at issue. This judgment preserved defendant's right to appeal the trial court's adverse decisions with regard to issues that were raised by either party in defendant's three motions for partial summary disposition.\\nDefendant then filed a claim of appeal. The Court of Appeals affirmed in part, reversed in part, and remanded for entry of an order of partial summary disposition in favor of defendant. Unpublished opinion per curiam of the Court of Appeals, issued November 21, 2006 (Docket No. 261736). The Court of Appeals held that this Court's decision in Cameron v Auto Club Ins Ass'n, 476 Mich 55; 718 NW2d 784 (2006), which affirmed the Court of Appeals decision in that case, was dispositive of defendant's claim that plaintiffs may not recover PIP benefits relating to any losses incurred more than one year before plaintiffs filed their original complaint. Moreover, it held that plaintiffs' fraud claim was subject to the one-year-back rule of MCL 500.3145(1) because the claim was nothing more than a no-fault claim couched in fraud terms. We granted plaintiffs' application for leave to appeal. 478 Mich 861 (2007).\\nII. STANDARD OF REVIEW\\nIssues of statutory interpretation and other questions of law are reviewed de novo. Devillers v Auto Club Ins Ass'n, 473 Mich 562, 566-567; 702 NW2d 539 (2005). The grant or denial of a motion for summary disposition is also reviewed de novo. McClements v Ford Motor Co, 473 Mich 373, 380; 702 NW2d 166 (2005).\\nIII. ANALYSIS\\nA. FRAUD ACTIONS AND ONE-YEAR-BACK RULE\\nThe Michigan no-fault act, MCL 500.3145(1), provides, in relevant part:\\nAn action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor's loss has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced. [Emphasis added.]\\nThe one-year-back rule of this provision limits recovery of PIP benefits to those incurred within one year before the date on which the no-fault action was commenced. PIP benefits include \\\"all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person's care, recovery, or rehabilitation.\\\" MCL 500.3107(l)(a).\\nPlaintiffs argue that by alleging in their amended complaint that defendant fraudulently induced Strozewski to accept an unreasonably low compensation rate for her in-home attendant-care services, plaintiffs brought a common-law fraud claim that is distinct from a no-fault claim for benefits, and that such claim therefore is not subject to the one-year-back rule of MCL 500.3145(1). A fraud action is not subject to the one-year-back rule of MCL 500.3145(1) because the one-year-back rule applies only to actions brought under the no-fault act, and a fraud action is a distinct and independent action brought under the common law. A fraud action is not an \\\"action for recovery of [PIP] benefits payable under [the no-fault act] for accidental bodily injury.\\\" Rather, in the context of an insurance contract, a fraud action is an action for recovery of damages payable under the common law for losses incurred as a result of the insurer's fraudulent conduct. There is a distinction between claiming that an insurer has refused to pay no-fault benefits to its insureds and claiming that the insurer has defrauded its insureds. A fraud action is conceptually distinct from a no-fault action because: (1) a fraud action requires an insured to prove several elements that are different from those required in a no-fault action; (2) a fraud action accrues at a different time than a no-fault action; and (3) a fraud action permits an insured to recover a wide range of damages that are not available in a no-fault action.\\nTo assert a no-fault claim, an insured must demonstrate that the insured is entitled to benefits \\\"for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle\\\" without regard to fault, and that the insurer is obligated under an insurance contract to pay those benefits, but failed to do so timely. MCL 500.3105. To assert an actionable fraud claim, on the other hand, an insured must demonstrate:\\n\\\"(1) That [the insurer] made a material representation; (2) that it was false; (3) that when [the insurer] made it [the insurer] knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that [the insurer] made it with the intention that it should be acted upon by [the] plaintiff; (5) that [the] plaintiff acted in reliance upon it; and (6) that [the plaintiff] thereby suffered injury. Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery.\\\" [Hi-Way Motor Co v Int'l Harvester Co, 398 Mich 330, 336; 247 NW2d 813 (1976), quoting Candler v Heigho, 208 Mich 115, 121; 175 NW 141 (1919).]\\nA fraud claim is clearly distinct from a no-fault claim. First, a fraud claim requires proof of additional ele ments, such as deceit, misrepresentation, or concealment of material facts, and the substance of such claim is the insurer's wrongful conduct. Unlike a no-fault claim, a fraud claim does not arise from an insurer's mere omission to perform a contractual or statutory obligation, such as its failure to pay all the PIP benefits to which its insureds are entitled. Rather, it arises from the insurer's breach of its separate and independent duty not to deceive the insureds, which duty is imposed by law as a function of the relationship of the parties. Second, unlike an action for no-fault benefits, which arises when the insurer fails to pay benefits, an action for fraud arises when the fraud is perpetrated. Hearn v Rickenbacker, 428 Mich 32, 39; 400 NW2d 90 (1987). Finally, under a no-fault cause of action, the insureds can only recover no-fault benefits, whereas under a fraud cause of action, the insureds may recover damages for any loss sustained as a result of the fraudulent conduct, which may include the equivalent of no-fault benefits, reasonable attorney fees, damages for emotional distress, and even exemplary damages. See Phillips v Butterball Farms Co, Inc (After Second Remand), 448 Mich 239, 250-251; 531 NW2d 144 (1995); Veselenak v Smith, 414 Mich 567, 574; 327 NW2d 261 (1982); Phinney v Perlmutter, 222 Mich App 513, 527; 564 NW2d 532 (1997); Clemens v Lesnek, 200 Mich App 456, 463-464; 505 NW2d 283 (1993).\\nTherefore, \\\"[a]\\u00a1though mere allegations of failure to discharge obligations under [an] insurance contract would not be actionable in tort, where, as here, the breach of separate and independent duties are alleged, [the insureds] should be allowed an opportunity to prove [their] causes of action.\\\" Hearn, 428 Mich at 40 (citation omitted); see also Roberts v Auto-Owners Ins Co, 422 Mich 594, 603-604; 374 NW2d 905 (1985) (tort actions survive in a contractual setting as long as the tort action is based on a breach of duty that is distinct from the contract); Kewin v Massachusetts Mut Life Ins Co, 409 Mich 401, 422; 295 NW2d 50 (1980) (tort actions may survive when an insurer breaches a duty that existed \\\"independent of and apart from the contractual undertaking\\\"). \\\"[T]ort liability abolished by the no-fault act is only such liability as arises out of the defendant's ownership, maintenance or use of a motor vehicle, not liability which arises out of other conduct .\\\" Citizens Ins Co of America v Tuttle, 411 Mich 536, 542; 309 NW2d 174 (1981); see also Shavers v Attorney General, 402 Mich 554, 623; 267 NW2d 72 (1978) (the no-fault act only \\\"partially abolish[ed] the common-law remedy in tort for persons injured by negligent motor vehicle tortfeasors .\\\" [emphasis added]); Bak v Citizens Ins Co of America, 199 Mich App 730, 737-738; 503 NW2d 94 (1993) (\\\"The enactment of the no-fault act did not extinguish common-law doctrines predating that legislation.\\\").\\nThat common-law fraud claims survive even where a self-contained system, such as the no-fault system, exists is further suggested by this Court's decisions in the context of the dramshop act. The dramshop act, MCL 436.1801 et seq., states that it provides \\\"the exclusive remedy for money damages against a licensee arising out of the selling, giving, or furnishing of alcoholic liquor.\\\" MCL 436.1801(10). In Manuel v Weitz man, 386 Mich 157, 164-165; 191 NW2d 474 (1971), overruled in part on other grounds by Brewer v Payless Stations, Inc, 412 Mich 673 (1982), this Court held that the dramshop act does not abrogate actions arising out of other unlawful conduct, and that tavern owners remain liable for injuries arising out of breach of other common-law duties. Similarly, the no-fault act, which provides the remedy for injuries arising out of \\\"the ownership, maintenance or use of a motor vehicle,\\\" MCL 500.3105(1), does not abrogate actions arising out of the breach of other common-law duties. Nothing in the no-fault act or other relevant law suggests that insurers are exempt from liability for breaching other common-law duties by, for example, misrepresenting material facts and deceiving their insureds. The fact that the dispute would not have arisen in the absence of the no-fault insurance contract does not mean that the action brought by the insureds is a no-fault action.\\nDefendant argues, and the Court of Appeals appears to assert, that where the damages sought by the insureds are defined in terms of additional PIP benefits, the insureds' cause of action must necessarily be considered a \\\"no-fault action couched in fraud terms.\\\" Cooper v Auto Club Ins Ass'n, unpublished opinion per curiam of the Court of Appeals, issued November 21, 2006 (Docket No. 261736), at 2. We respectfully disagree. Although the nature of the damages sought may constitute a useful indicator of the precise nature of the claim, this factor alone cannot be viewed as dispositive.\\nThe fact that a lawsuit seeks to recover a loss that was covered by an insurance policy, alone, should not dictate the nature of a plaintiffs claims . Although the contract of insurance may be one source of the insurer's obligation to pay the loss, the insurer may also be held liable for tortious conduct that is wholly separable from its purely contractual duties.[Hearn, 428 Mich at 40-41.]\\nWhere fraudulent conduct results in the loss, or reduced payment, of PIP benefits, plaintiffs are entitled to seek damages for their entire loss, including the equivalent of the no-fault benefits. See Phinney, 222 Mich App at 532. It should not be seen as unusual that damages for fraud in a statutory context would be more than randomly related to lost statutory benefits. Simply because the insureds choose to measure their loss from the fraudulent conduct, in whole or in part, on the basis of lost PIP benefits does not transform their claim into a no-fault claim.\\nTherefore, where an insured's claim arises not out of the insurer's mere failure to pay no-fault benefits, but out of the insurer's fraudulent misrepresentations, which might have ultimately led to payment of reduced no-fault benefits to the insureds, the courts are faced with a fraud claim, as opposed to a no-fault claim. Because fraud claims are independent of and distinct from no-fault claims, the one-year-back rule of the no-fault act simply does not apply.\\nConsequently, where the insureds state a fraud cause of action, this Court need not resort to its equitable power to prevent the one-year-back rule's application. In Devillers, 473 Mich at 590-591, this Court stated that, in the context of a no-fault claim, this Court may exercise its equitable power to avoid the application of the one-year-back rule if there are allegations of fraud, mutual mistake, or other unusual circumstances. Because Devillers \\\"concerns those statutory claims brought pursuant to the no-fault act,\\\" i.e., no-fault actions, Devillers is not pertinent in cases involving independent fraud actions. West v Farm Bureau Gen Ins Co of Michigan (On Remand), 272 Mich App 58, 65; 723 NW2d 589 (2006). Thus, where the insureds state a common-law fraud claim, wholly separate from a no-fault claim, this Court need not consider an equitable exception to the application of the one-year-back rule because the no-fault rules simply do not apply.\\nB. CAUTIONARY NOTES\\nWhile insureds are entitled to pursue common-law fraud claims against insurers and their remedies are not limited by the one-year-back rule of the no-fault act, we are not oblivious to the fact that, in the initial stages of litigation, some insureds may attempt to circumvent the application of the one-year-back rule to defeat insurers' motions for summary disposition. In order to limit such practices, to prevent wasteful or frivolous litigation, and to maintain the integrity of both the no-fault law and the common-law fraud cause of action, trial courts should exercise special care in assessing these types of fraud claims, and we offer the following guidance.\\nBecause fraud must be pleaded with particularity, MCR 2.112(B)(1), and \\\"is not to be lightly presumed, but must be clearly proved,\\\" Palmer v Palmer, 194 Mich 79, 81; 160 NW 404 (1916), \\\"by clear, satisfactory and convincing\\\" evidence, Youngs v Tuttle Hill Corp, 373 Mich 145, 147; 128 NW2d 472 (1964), trial courts should ensure that these standards are clearly satisfied with regard to all of the elements of a fraud claim. As stated above, the elements of fraud in the insurance context are: (1) that the insurer made a material representation; (2) that it was false; (3) that when the statement was made, the insurer knew that it was false, or the insurer made it recklessly without any knowledge of its truth and as a positive assertion; (4) that the insurer made the statement with the intention that it would be acted upon by the insureds; (5) that the insureds acted in reliance upon the statement; and (6) that the insureds consequently suffered injury. See Hi-Way Motor Co, 398 Mich at 336.\\nIn particular, courts should carefully consider in this context whether insureds can satisfy the reliance factor. Insureds must \\\"show that any reliance on [the insurer's] representations was reasonable.\\\" Foreman v Foreman, 266 Mich App 132, 141-142; 701 NW2d 167 (2005). Because fraud cannot be \\\"perpetrated upon one who has full knowledge to the contrary of a representation,\\\" Montgomery Ward & Co v Williams, 330 Mich 275, 284; 47 NW2d 607 (1951), insureds' claims that they have reasonably relied on misrepresentations that clearly contradict the terms of their insurance policies must fail. One is presumed to have read the terms of his or her insurance policy, see Van Buren v St Joseph Co Village Fire Ins Co, 28 Mich 398, 408 (1874); therefore, when the insurer has made a statement that clearly conflicts with the terms of the insurance policy, an insured cannot argue that he or she reasonably relied on that statement without questioning it in light of the provisions of the policy. See also McIntyre v Lyon, 325 Mich 167, 174, 37 NW2d 903 (1949); Phillips v Smeekens, 50 Mich App 693, 697; 213 NW2d 862 (1973). In addition, insureds will ordinarily be unable to establish the reliance element with regard to misrepresentations made during the claims handling and negotiation process, because during these processes the parties are in an obvious adversarial position and generally deal with each other at arm's length. See Mayhew v Phoenix Ins Co, 23 Mich 105 (1871) (Where the insured has the same knowledge or means of knowledge as the insurer, the insurer cannot be regarded as occupying any fiduciary relationship that would entitle the insured to rely on the insurer's representations, and a settlement hastily made with the insurer under such circumstances will not be set aside for fraud. Insureds are bound to inform themselves of their rights before acting, and, if they fail to do so, they themselves are responsible for the loss.); Nieves v Bell Industries, Inc, 204 Mich App 459, 464; 517 NW2d 235 (1994) (\\\"There can be no fraud when a person has the means to determine that a representation is not true.\\\"). However, when the process involves information and facts that are exclusively or primarily within the insurers' \\\"perceived 'expertise' in insurance matters, or facts obtained by the insurer[s] in the course of [their] investi gation, and unknown\\\" to the insureds, the insureds can more reasonably argue that they relied on the insurers' misrepresentations. 14 Couch, Insurance, 3d, \\u00a7 208:19, p 208-26; see also Crook v Ford, 249 Mich 500, 504-505; 229 NW 587 (1930); French v Ryan, 104 Mich 625, 630; 62 NW 1016 (1895); Tabor v Michigan Mut Life Ins Co, 44 Mich 324, 331; 6 NW 830 (1880).\\nThe courts should also carefully examine whether the insureds have established both that the statements are statements of past or existing fact, rather than future promises or good-faith opinions, Hi-Way Motor Co, 398 Mich at 337; Danto v Charles C Robbins, Inc, 250 Mich 419, 425; 230 NW 188 (1930); Foreman, 266 Mich App at 143, and that they are objectively false or misleading, Hord v Environmental Research Institute of Michigan, 463 Mich 399, 411; 617 NW2d 543 (2000). Further, the insureds must demonstrate that the misrepresentations were made with the intent to defraud, Foreman, 266 Mich App at 143, and that the insureds were injured as a consequence. Hi-Way Motor Co, 398 Mich at 336. The courts must distinguish between misrepresentations of fact, i.e., false statements of past or existing facts, and mere negotiation of benefits, i.e., the mutual discussion and bargaining preceding an agreement to pay PIP benefits.\\nFinally, as with any other action, if the courts conclude that the fraud claims were frivolous or interposed without an adequate basis or for improper purposes, appropriate sanctions should be considered. See MCR 2.114.\\nIV CONCLUSION\\nBecause under MCL 500.3145(1) the one-year-back rule applies solely to no-fault actions, and because a fraud action is not a no-fault action, but, rather, constitutes an independent and distinct action for recovery of damages under the common law for losses incurred as a result of the insurer's fraudulent conduct, we hold that a common-law action for fraud is not subject to the one-year-back rule. Therefore, we reverse in part the judgment of the Court of Appeals and remand this case to the Court of Appeals for it to address the remaining issues raised by the parties.\\nTaylor, C.J., and Corrigan and Young, JJ., concurred with Markman, J.\\nCAVANAGH, J. I concur in the result only.\\nMCL 600.5851(1) provides:\\nExcept as otherwise provided in subsections (7) and (8), if the person first entitled to make an entry or bring an action under this act is under 18 years of age or insane at the time the claim accrues, the person or those claiming under the person shall have 1 year after the disability is removed through death or otherwise, to make the entry or bring the action although the period of hmitations has run. This section does not lessen the time provided for in section 5852.\\nMCL 500.3105 provides:\\n(1) Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.\\n(2) Personal protection insurance benefits are due under this chapter without regard to fault.\\n(3) Bodily injury includes death resulting therefrom and damage to or loss of a person's prosthetic devices in connection with the injury.\\n(4) Bodily injury is accidental as to a person claiming personal protection insurance benefits unless suffered intentionally by the injured person or caused intentionally by the claimant. Even though a person knows that bodily injury is substantially certain to be caused by his act or omission, he does not cause or suffer injury intentionally if he acts or refrains from acting for the purpose of averting injury to property or to any person including himself.\\n\\\"[T]he relationship between insurers and their insureds is 'sufficient to permit fraud to be predicated upon a misrepresentation.' \\\" Hearn v Rickenbacker, 428 Mich 32, 39; 400 NW2d 90 (1987), quoting Drouillard v Metropolitan Life Ins Co, 107 Mich App 608, 621; 310 NW2d 15 (1981).\\n\\\"In a fraud and misrepresentation action, the tortfeasor is liable for injuries resulting from his wrongful act, whether foreseeable or not, provided that the damages are the legal and natural consequences of the wrongful act and might reasonably have been anticipated.\\\" Phinney v Perlmutter, 222 Mich App 513, 532; 564 NW2d 532 (1997).\\nThis Court stated:\\nWe specifically approve the following statement in [De Villez v Schifano, 23 Mich App 72, 77; 178 NW2d 147 (1970)]:\\n\\\"We hold that the dramshop act affords the exclusive remedy for injuries arising out of an unlawful sale, giving away, or furnishing of intoxicants. King v. Partridge, 9 Mich App 540, 543 (1968). However, the act does not control and it does not abrogate actions arising out of unlawful or negligent conduct of a tavern owner other than selling, giving away, or furnishing of intoxicants, provided the unlawful or negligent conduct is recognized as a lawful basis for a cause of action in the common law.\\\" [Manuel, 386 Mich at 164-165.]\\nWe note that the question whether the no-fault act provides the exclusive remedy for injuries arising out of \\\"the ownership, maintenance or use of a motor vehicle\\\" is not relevant here because the insureds argue that their injuries arose out of the insurer's fraudulent conduct, not out of \\\"the ownership, maintenance or use of a motor vehicle.\\\"\\nIn Devillers, however, this Court concluded that because there was \\\"no allegation of fraud, mutual mistake, or any other 'unusual circumstance' . there [was] no basis to invoke the Court's equitable power.\\\" Devillers, 473 Mich at 591.\\nWe note that, where a case involves a no-fault claim, this Court may still exercise its equitable power if there has been a determination that genuinely \\\"unusual circumstances\\\" such as fraud or mutual mistake were present. Devillers, supra at 590-591.\\nIn Tabor, the Court held that \\\"[wjhile . a person cannot generally be justified in acting solely on the statement of his legal rights by an adverse agent in insurance controversies,\\\" relief is warranted if the statements are \\\"so mixed with unconscionable conduct as to stand differently.\\\" Id. at 331. Not only did the insurer misrepresent the applicable law regarding forfeiture of policies and pressure the ill insured to immediately comply with the insurer's demands without allowing him to obtain independent advice, but, critically, the insurer also misrepresented facts that were within the exclusive knowledge of the insurer, such as the actions taken by the insurance commissioner and by some of the insured's neighbors, which directly affected the surrender of the insured's policy. Thus, the plaintiff could recover under her fraud claim.\"}" \ No newline at end of file diff --git a/mich/7340663.json b/mich/7340663.json new file mode 100644 index 0000000000000000000000000000000000000000..7ce630b3d1f3a00af6d3e9710847f24083ee294d --- /dev/null +++ b/mich/7340663.json @@ -0,0 +1 @@ +"{\"id\": \"7340663\", \"name\": \"Dobbyn v. Progressive Michigan Insurance Company\", \"name_abbreviation\": \"Dobbyn v. Progressive Michigan Insurance\", \"decision_date\": \"2009-02-24\", \"docket_number\": \"No. 137591\", \"first_page\": \"895\", \"last_page\": \"895\", \"citations\": \"483 Mich. 895\", \"volume\": \"483\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T01:29:44.169081+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Dobbyn v Progressive Michigan Insurance Company,\", \"head_matter\": \"Dobbyn v Progressive Michigan Insurance Company,\\nNo. 137591;\", \"word_count\": \"13\", \"char_count\": \"90\", \"text\": \"Court of Appeals No. 278661.\"}" \ No newline at end of file diff --git a/mich/7343814.json b/mich/7343814.json new file mode 100644 index 0000000000000000000000000000000000000000..662e39112048848cf6bc95675d92f3c3f0310f39 --- /dev/null +++ b/mich/7343814.json @@ -0,0 +1 @@ +"{\"id\": \"7343814\", \"name\": \"People v. Steven Thomas\", \"name_abbreviation\": \"People v. Thomas\", \"decision_date\": \"2009-03-23\", \"docket_number\": \"No. 137822\", \"first_page\": \"915\", \"last_page\": \"915\", \"citations\": \"483 Mich. 915\", \"volume\": \"483\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-11T01:29:44.169081+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"People v Steven Thomas,\", \"head_matter\": \"People v Steven Thomas,\\nNo. 137822;\", \"word_count\": \"11\", \"char_count\": \"65\", \"text\": \"Court of Appeals No. 278956.\"}" \ No newline at end of file diff --git a/mich/8722880.json b/mich/8722880.json new file mode 100644 index 0000000000000000000000000000000000000000..33fc74b3c225686b0d1d6febcf38701cf0618fd2 --- /dev/null +++ b/mich/8722880.json @@ -0,0 +1 @@ +"{\"id\": \"8722880\", \"name\": \"Ezra A. Engle v. Hiram L. Chipman\", \"name_abbreviation\": \"Engle v. Chipman\", \"decision_date\": \"1883-10-17\", \"docket_number\": \"\", \"first_page\": \"524\", \"last_page\": \"526\", \"citations\": \"51 Mich. 524\", \"volume\": \"51\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T21:44:48.153339+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other Justices concurred.\", \"parties\": \"Ezra A. Engle v. Hiram L. Chipman.\", \"head_matter\": \"Ezra A. Engle v. Hiram L. Chipman.\\nServices in aid of prosecuting dttormy.\\nIn an action against a prosecuting attorney for legal services rendered by plaintiff as Ms assistant, proof that defendant promised to tell the supervisors that the bill was right, and ought to be paid, is no evidence of a recognition of personal liability, or of the actual rendering of the services.\\nA general delegation of his powers by a prosecuting attorney is against public policy, and is illegal; and it can furnish no basis which a court will recognize for any action by the person to whom the powers were delegated for personal compensation for his services.\\nA prosecuting attorney is vested with a personal discretion as a minister of justice and not as a mere legal attorney, and he must act impartially, as well in refraining from prosecuting as in prosecuting. He must guard the real interests of public justice in behalf of all concerned, and he must not become entangled with private interests or. grievances in any way connected with charges of crime.\\nA prosecuting attorney may, perhaps, employ assistants in ways not involving his official discretion or responsibility, but this discretion can only be delegated on special grounds, where an assistant has been provided for by law. *\\nError to Huron. (Wixson, J.)\\nOctober 4.\\nOctober 17.\\nAssumpsit. Plaintiff brings error.\\nAffirmed.\\nEngle & Engle for appellant.\\nGhvpmam, <& Bope and WilUam T. Mitchell for appellee.\", \"word_count\": \"721\", \"char_count\": \"4339\", \"text\": \"Campbell, J.\\nEngle sued Cbipman for legal services claimed to bave been rendered as agent of Cbipman in matters relating to bis duty as prosecuting attorney of Huron county. His claim was in substance that having decbned to act in certain cases specified, without general authority, this authority was given him, and be acted accordingly. His bill of particulars contained ten items of services in criminal proceedings. He testified that be showed bis bill to Chip-man, who, after examining it, told him to file it with the board of supervisors, and if they raised any question about allowing the bill be would tell the board the bill was right,\\u2014 that plaintiff had rendered the services and should have his pay. This was denied by defendant.\\nThe jury found a small verdict in plaintiff's favor, but rejected most of his claim. \\\"We do not think it necessary to go at length into the questions presented by plaintiff, because, as pointed out by counsel for defense, the record does not show any ease made out at all. We find nothing to show that any services were rendered, nor then value if rendered. The fact, if true, that defendant promised to make certain representations to the supervisors is no evidence of any recognition of personal liability, and no evidence of the actual rendering of the services. And in the absence of any further showing \\u2014 inasmuch as it devolves upon plaintiff to show error \\u2014 we can see nothing to base objections upon.\\nBut we are also of opinion that if the agency created was such as plaintiff claims it to have been, it was illegal. No doubt a prosecuting attorney may employ assistants in various ways not involving his official discretion or responsibility, and this is all that defendant admits he ever did. But the law has very carefully guarded the criminal interests of the State from any interested or unauthorized intermeddling. The prosecuting attorney is a very responsible officer, selected by the people and vested with personal discretion intrusted to him as a minister of justice, and not as a mere legal attorney. He is disqualified from becoming in any way entangled with private interests or grievances in any way connected with charges of crime. He is expected to be impartial in abstaining from prosecuting as well as in prosecuting, and to guard the real interests of public justice in favor of all concerned. This discretion is official and personal, and our laws have only allowed its delegation on special grounds, where an assistant has been provided for by carefully guarded legislation. It is directly contrary to public policy to allow any general delegation of a prosecutor's powers, and the courts cannot recognize any such .arrangement as forming a basis for personal compensation.\\nFor all these reasons we must decline to disturb the verdict.\\nThe judgment must be affirmed with costs.\\nThe other Justices concurred.\"}" \ No newline at end of file