text:
    HAYRYNEN v. WHITE PINE COPPER COMPANY.
    1. Parent and Child — Loss op Companionship — Injured Parent.
    Little statutory or prior judicial authority exists at the present time with respect to the protection and enforcement of a right of recovery for loss of companionship and injury by the children of a nonfatally injured parent.
    2. Same — Cause op Action — Tort-Feasor.
    Courts have not recognized an independent right of action in children to recover against a tort-feasor for loss of parental attention, training, affection, and support caused by nonfatal injuries to the parent.
    3. Same — Negligence—Loss op Love and Companionship.
    Actions by a ehild to recover for the loss of love and companionship of a parent eaused by negligent nonfatal injury are universally dismissed by the courts.
    References por Points in Headnotes
    [1-4] 39 Am Jur, Parent and Child § 71.
    Child’s right of action, for loss of support, training, parental attention and the like, against third person negligently injuring parent. 59 ALR2d 454.
    [5] 7 Am Jur 2d, Automobiles and Highway Traffic § 108.
    [6] 7 Am Jur 2d, Automobiles and Highway Traffic §§ 93, 94,
    [7] 1 Am Jur 2d, Actions § 1,

      4. Negligence — Parent and Child — Cause of Action.
    Children of a parent negligently injured by another held, not to have a cause of action against the person causing nonfatal injuries to the parent.
    5. Automobiles — Highways—Driver’s License Re-examination— Third-Party Beneficiary Contract.
    Third-party beneficiary contract held, not to be created where a person, on re-examination for the retention of his driver’s license by an official of the office of the secretary of State, agrees to comply with Michigan’s motor vehicle laws.
    6. Same — Driver’s License.
    A license to drive an automobile is a privilege dispensed by the State.
    7. Action — Definition—Damages.
    A cause of action consists of a plaintiff’s right and defendant’s violation of that right, or the breach of a legal duty resulting in damage to plaintiff.
    Appeal from Ontonagon; Wright (Robert R.), J.
    Submitted Division 3 October 6, 1967, at Marquette.
    (Docket No. 2,111.)
    Decided March 18, 1968.
    Complaint by Kelley Hayrynen and Kathy Hayrynen, by their father' and next friend, Douglas Hayrynen, against White Pine Copper Company, a foreign corporation, and William Briski for loss of companionship, love and affection, support, and mental strain, agony, torment, and distress by reason of injuries suffered by their father. Summary judgment for defendants. Plaintiffs appeal.
    Affirmed.

      Wisti, Jaaskelainen S Schrock, for plaintiffs.

      Humphrey é Weis for defendants.
   Fitzgerald, P. J.

The plaintiffs in this appeal are the minor children of Douglas Hayrynen, who was injured in an automobile accident on December 16, 1961, which to date has produced a multitude of lawsuits, this being the outy one to reach the appellate level.

Briefly, the accident happened as follows: Douglas Hayrynen was a passenger in an automobile returning to his home in South Range, Michigan, from his place of employment, the White Pine Copper Company in White Pine. The vehicle in which he was a passenger was owned and operated by William P. Stone. There were 4 other passengers in this vehicle in addition to the driver and Hayrynen. While operating the vehicle on the roadway known as the. Greenland road in Ontonagon county, the vehicle of the defendant White Pine Copper Company, operated by its employee, William Briski, attempted to pass another vehicle in a no-passing zone and, as a result, collided head-on with the vehicle in which Hayrynen was a passenger. As a result of this collision, the driver of the vehicle in which Hayrynen was a passenger was killed and the 5 passengers were seriously injured.

Previous lawsuits by the passengers of the Stone vehicle included separate legal actions against the defendants herein, which suits were joined in by the wives of the injured parties. The case of the driver was tried first and resulted, in a substantial award to the widow of the deceased driver of the vehicle. in which Hayrynen was injured. In this particular case, the question of liability was determined by the jury and likewise the question of damages.

Subsequent cases, including Hayrynen’s own case, were likewise tried and the liability of the defendants was admitted, the cases being tried only on the question of damages.

' The instant' case presents 2 novel questions, brought as it is by the minor children of Douglas Hayrynen. While the previous cases involve a cause of action by the injured parties themselves, or their wives suing for loss of consortium, this case was commenced in the circuit court for the county of Ontonagon by Hayrynen’s minor children. In charging defendants with willful and wanton negligence, they assert that they had, as a result of this accident, suffered and sustained a loss of companionship, love and affection of their father and that they had suffered loss of support and mental strain, agony, torment, and distress by reason of the injuries suffered by the father.

Defendants filed their answer to the complaint and, in addition, filed a motion for summary judgment alleging that the complaint failed to state a cause of action against the defendant. Following oral arguments and the filing of briefs on the defendants’ motion for summary judgment, the court entered an order allowing defendants’ motion for summary judgment, and it is from this order that plaintiffs appealed to this Court.

Two novel questions are placed before us. The first question asked is whether the children of a parent negligently injured by another have a cause of action against the person causing the injuries to the parent. This should perhaps be narrowed down to a slightly more succinct definition of their suggested cause of action as set forth in the instant case, i.e., whether they have a legally protectible interest in their familial relationship with their father.

The second question, more ingenious, asks whether a third-party beneficiary contract is created where a person, on re-examination for the retention of his driver’s license by an official of the office of the secretary of State, agrees to comply with Michigan’s motor vehicle laws and subsequently injures someone on the highways of this State,

Turning first to the question of the possibility of recovery for loss of companionship and injury by the children of an injured parent, we are forced to conclude with appellants that “there is little statutory or prior judicial authority at the present time with respect to the protection and enforcement of this right.”

The sole case that appellant cites, with even an oblique application to this case, appears in the decision of the Federal district court for the western district of Michigan, Russick v. Hicks (1949), 85 F Supp 281. This ease furnishes us little precedent and scant comfort to the plaintiffs since it does not deal with an automobile negligence case. Indeed, it involves an action against a third party for enticing a parent from the family home. The gulf between the 2 types of action will not be bridged by this Court just as it has not been bridged by any court in the past.

“It is apparent that one suffering physical injury not resulting in death may, as a result, be unable to give his minor children parental attention, training, affection, support, et cetera, in the same degree as he might have done but for the injury. This annotation seeks to determine whether the courts have recognized an independent right of action in the children to recover against the tort-feasor for such loss. The question posed may be answered briefly and in the negative. Any trend in other fields toward liberality in extending the right to recover for injury to ‘consortium’ has not been apparent in the situation here discussed, so that it appears to be the universally accepted rule at the present time that no such right of action exists.” 59 ALR2d 454.

A further definitive statement on this subject appears in 61 Columbia Law Review, p 1347, in the following words:

“The child, in contrast to the other members of the immediate family, has received little or no judicial protection of his familial interests. There appears to have been no instance at common law of a suit by a child for injury to or interference with his relationship with his parents, perhaps because a child clearly had no right to the services of a parent. Even today, suits by a child to recover for the loss of love and companionship of a parent caused by negligent injury are universally dismissed by the courts.”

Likewise, the case of Montgomery v. Stephan (1960), 359 Mich 33, while containing a scholarly and absorbing dissertation on the term “consortium” and all it implies, appears to us to offer little support to the claim of plaintiff that children have a derivative, or even comparable, cause of action.

Accordingly, we hold that the trial court acted properly in granting the summary judgment on this particular ground.

On the second question presented to us, i.e., whether a third party beneficiary contract was created during the interview that the defendant Briski had with a representative of the secretary of State’s office, enabling these plaintiffs to maintain a cause of action, we feel that we, too, may be summary in our judgment and answer the question: no.

Plaintiff states that:

“By the improper operation of the vehicle by the defendant William Briski for and on behalf of the defendant White Pine Copper Company, this agreement (to be a good driver) was violated and the father of the plaintiffs was injured and as a result the plaintiffs have a legally enforceable right to demand protection under this third-party beneficiary contract.”

In addition to a lack of proof, as shown by the record, that the defendant’s license was not suspended because he definitively agreed or promised to be a good driver, there is likewise no showing of the creation of any kind of contract. If promise there was, it was unilateral, conferring, in a sense, no benefits' on the State, a license to drive being merely a privilege dispensed by the State. The State promised him nothing and we can find no authority that a revocation interview, such as this, creates a legal right in anyone, save, perhaps, the State, which may remove or suspend the license with alacrity upon the failure of the licensee to be a good driver, promise or not.

A “parade of horribles” is conjectured by the defendants in this case if such a cause of action were created. Such a showing we do not think is necessary, particularly the specter that 8 million people might one day become beneficiaries of such interviews.

The simple and elemental fact remains that no third-party beneficiary contract was created by the interview between defendant and the State of Michigan; but over and above this, it is patent that the children of a negligently injured parent have no cause of action such as suggested in the instant suit.

In the absence of authority, we concur with the observation in Inglis v. Public School Employees Retirement Board (1964), 374 Mich 10, wherein it was said, citing 1 MLP, Action, § 3, p 108:

“In accordance with the generally approved definition of ‘cause of action,’ as consisting of plaintiff’s right and defendant’s wrong, it is necessary to give rise to a cause of action that there be a violation of some positive legal light, or the breach of a legal duty resulting in damage to plaintiff.”

Judgment of the trial court affirmed. Costs to appellees.

Burns and Holbrook, JJ., concurred.


source: Caselaw Access Project

author: Holbrook, J.

license: Public Domain

text:
    LAURENTIDE LEASING COMPANY v. SCHOMISCH.
    1. Taxation — Sales Tax — Tax on Seller.
    The State sales tax is a tax upon the seller and not upon the consumer (CLS 1961, § 205.52).
    2. Same — Sales Tax — Inclusion in Price — Presumptions.
    No presumption against defendant buyer of tangible personal property arises from the silence of defendant as to noninclusion of sales tax in the price before or at the time of defendant’s paying the price demanded (CLS 1963, § 205.52).
    3. Same — Sales Tax- — Inclusion in Price.
    The general sales tax aet creates no liability on the part of the purchaser of tangible personal property unless the tax is incorporated in or added to the price and the purchaser accepts it with such understanding (CLS 1961, § 205.52).
    4. Contracts — Sales Price — Inclusion oe Sales Tax.
    Contract by which buyer agreed to pay a specific sum for laundry equipment, sales tax not being mentioned, could not be changed by the seller later demanding the sales tax in addition to the purchase price, unless the buyer accepted the equipment with the understanding that buyer would pay the . sales tax.
    References eor Points in Headnotes
    [1] 47 Am Jur, Sales and Use Taxes § 22.
    Redemption of trading stamps or the like for merchandise as sale at retail within taxing statute. 80 ALR2d 1221.
    [2-4] 47 Am Jur, Sales and Use Taxes § 15.
    Computation of sales tax where property is turned in by purchaser. 4 ALR2d 1059.
    Sales or use tax: deduction or exemption of discount or premium in computing amount of sales. 90 ALR2d 338.
    Appeal from Dickinson; Brown (Ernest W.), J.
    Submitted Division 3 October 6, 1967, at Marquette.

      (Docket No. 2,671.)
    Decided March 18, 1968.
    Rehearing denied April 25, 1968.
    Leave to appeal granted October 10, 1968.
    See 381 Mich 782.
    Action by Lanrentide Leasing Company to recover sales tax of $1,653.85 against Daniel R. Sehomisch and Richard Y. Miller, purchasers of laundry equipment, and the First National Bank of Iron Mountain. Judgment against all defendants. Defendants appeal.
    Reversed for entry of judgment of dismissal as to all defendants.

      McNeil & Payant, for plaintiffs.

      Paul Rohm, for defendants.
   Holbrook, J.

Laurentide Leasing Company, plaintiff, brought an action to recover sales tax of $1,653.85 against defendants Daniel R. Sehomisch and Richard Y. Miller, purchasers of laundry equipment, and the First National Bank of Iron Mountain, Michigan, who transmitted the purchase money for the purchasers to plaintiff upon receipt of bill of sale.

After trial, before the court without a jury, a judgment was rendered against defendant bank upon the premise that the bank was acting as escrow agent for plaintiff and failed to comply with plaintiff’s written order, and dismissed the action against defendant purchasers because they had a right to assume the sales tax was included in the price of the laundry equipment. Subsequently, the trial judge, sua sponte, set aside the former judgment of dismissal and held all defendants liable for the sales tax, based on the premise that the defendant bank was the agent for the purchasers and that the “acts of the bank were binding on the two individual defendants as principals.”

From the judgment for plaintiff, all defendants appeal.

Appellants raise several issues for review, which for purposes of this decision can be stated in the single question: Did the trial court err in denying defendants’ motion for a directed verdict?

The pertinent facts appear to be as follows: Plaintiff leased certain laundry equipment to defendants Schomisch and Miller under a lease agreement, the terms of which do not appear in the record. Sometime prior to September 10, 1963, plaintiff and defendants Schomisch and Miller agreed to terminate the lease arrangement and agreed to purchase of the laundry equipment by Schomisch and Miller from plaintiff. The price agreed upon was $43,000. Schomisch and Miller arranged for financing with the First National Bank of Iron Mountain, Michigan. The plaintiff, on September 10, 1963, sent a letter to the defendant bank which reads as follows:

“September 10, 1963
“The First National Bank
“Iron Mountain, Michigan
“Be: Daniel B. Schomisch and
“Bichard Y. Miller-Lease l-LL-219
“Gentlemen:
“We hereby submit our claim and demand for $43,000 as the final payoff figure for the equipment under the referenced lease.
“We are enclosing a bill of sale from Laurentide Leasing Co. in favor of Daniel B. Schomisch and Bichard V. Miller. We request that you forward funds at your earliest convenience to consummate this transaction. If required, we can assign our lease instrument to the bank as evidence of the agreement between the lessee and ourselves, which will afford you documentary proof of the indebtedness for the interim period. We are also enclosing the canceled assignment of life insurance policy as collateral, which was furnished by the lessee to Laurentide Leasing.
“We trust that the foregoing documents will enable you to satisfy our claim, however, if you require additional documentation please contact the writer at your earliest convenience.”
The proffered bill of sale was not properly witnessed or acknowledged and defendant bank on September 18, 1963, sent it back to plaintiff for proper execution. In this letter, it is stated in part as follows:
“When this has been complied with we will be in a position to remit you $43,000 to cover the final payoff on this lease.”
This letter was answered by a letter from plaintiff dated September 23, 1963, to defendant bank which stated:
“Re: Daniel R. Schomisch and
“Richard Y. Miller
“Lease l-LL-219
“The First National Bank
“Of Iron Mountain
“Iron Mountain, Michigan
“Attn: Leo H. Mortensen
“Executive Yice President
“Gentlemen:
“We are returning a duly executed and witnessed bill of sale for the laundromat equipment being conveyed to your customers Daniel R. Schomisch and Richard Y. Miller, for the consideration of $43,000 net proceeds to Laurentide Leasing Company, Michigan sales tax at 4% for the account of the buyer.
“The bill of sale was executed in the presence of a notary public in and for the state of California, county of San. Francisco. We trust the receipt of this instrument will enable you to remit $43,000 to cover the final payoff on the lease.
“If you should require further documentation, please contact the writer at your earliest opportunity.”

Plaintiff had sent defendant bank a telegram on September 13, 1963, as follows:

“First National Bank=
“Iron Mountain Mich=
“Ref our letter Sept 10 Schomisch-Miller payoff our lease # 219 Michigan sales tax is for the account of the buyer net proceeds to Laurentide $43,-000 Please confirm — ’

The defendant bank replied to this telegram with a telegram to plaintiff on September 14, 1963, which reads as follows:

“Fossum-Laurentide Leasing Co.
“405 Montgomery St SFran
“Rewire 13th Schomisch-Miller payoff $43,000. O.K. Stop-
“Send releases and all documents to us for collection and remittance to cover will be made promptly
“The First National Bank Iron Mountain Michigan”

On October 4, 1963, defendant bank sent to plaintiff a certified check for $43,000 and requested plaintiff to acknowledge that the entire obligation had been fully satisfied.

Under date of October 8, 1963, plaintiff wrote defendant bank as follows:

“Attn: Leo H. Mortensen
“Executive Vice President
“Gentlemen:
“We are pleased to acknowledge receipt of your cashier check in the amount of $43,000 covering the final payoff on the laundromat equipment leased to Daniel R. Schomisch and Richard Y. Miller.
“Laurentide Leasing Company hereby acknowledges that lease l-LL-219 is completely and fully satisfied in its entirety.
“It has been a pleasure to deal with your good bank and we trust you will have a satisfactory relationship with our former lessees.”

The consideration mentioned in the first proffered bill of sale and subsequent bill of sale was stated as $43,000 with no mention whatsoever of the 4% State sales tax.

It was undisputed that Schomisch and Miller had not been informed by plaintiff or anyone else that plaintiff desired to add 4% sales tax to the $43,000 figure. Schomisch and Miller testified at the trial that the defendant bank had only specific authority from them to pay plaintiff $43,000 for a proper bill of sale conveying the laundry equipment to them. Plaintiff did not introduce any evidence to indicate that defendant bank was authorized by Schomisch and Miller to change their agreement with plaintiff in any regard. The record is barren of any evidence that Schomisch and Miller ever consented or understood that 4% sales tax was to be added to the purchase price of $43,000.

The State sales tax is a tax upon the seller and not the consumer as is evidenced in section 2 of the sales tax act which reads in part as follows:

“There is hereby levied upon and there shall be collected from all persons engaged in the business of making sales at retail, as hereinbefore defined, an annual tax for the privilege of engaging in such business equal to 4% of the gross proceeds thereof, plus the penalty and interest when applicable as hereinafter provided, less deductions allowed in sections 4 and 4a.”

In a somewhat similar case, Swain Lumber Co. v. Newman Development Co. (1946), 314 Mich 437, 441, Mr. Justice Reid stated in part as follows:

“No presumption against defendant arises from the silence of defendant as to noninclusion of sales tax in the price before or at the time of defendant’s paying the price demanded.
“The circuit judge found that the claim of mistake was not supported by the evidence. We determine that that finding is not against the weight of the evidence, and affirm the finding. The section of the statute in question (Act No 167, § 23, PA 1933 [CLS 1940, § 3663-23, Stat Ann § 7.544]) is as follows :
“ ‘No person engaged in the business of selling-tangible personal property at retail shall advertise or hold out to the public in any manner, directly or indirectly, that the tax herein imposed is not considered as an element in the price to the consumer. Nothing contained in this act shall be deemed to prohibit any taxpayer from reimbursing himself by adding to his sale price any tax levied hereunder.’
“The statute creates no liability on the part of the purchaser to pay the tax unless the tax is incorporated in or added to the price and the purchaser accepts the tangible personal property with such understanding.” (Emphasis supplied)

Plaintiff, under the law, included the sales tax in the $43,000 agreed price unless the sales tax was added and the purchasers accepted the personal property with such understanding. Plaintiff asserts that the 4% sales tax was not included in the price agreed but failed completely to show in any regard that the purchasers accepted the laundry equipment understanding that the sales tax was to be added to the $43,000 figure.

The defendant bank in the first instance was presented with a “claim and demand for $43,000 as the final payoff figure for the equipment under the referenced lease” from plaintiff. The subsequent statement in the telegram and letter from plaintiff to defendant bank stating that “Michigan sales tax is for the account of the buyer, net proceeds to Lauren-tide $43,000” constituted a change in the agreed price and to be effective under Michigan law required acceptance of the equipment by the purchasers with such understanding. This plaintiff failed to prove. It would have been simple for plaintiff to have cleared this matter directly with the purchasers or by stating in the claim and demand on defendant bank that $43,000 plus the amount of the sales tax was to be paid and transmitted to plaintiff before the bill of sale was to be delivered to the purchasers. In either case, acceptance by the purchasers or payment of the tax would have satisfied the applicable law.

The motion for directed verdict in favor of defendants should have been granted.

Reversed for entry of judgment of dismissal as to all defendants. Costs to appellants.

Fitzgerald, P. J., and Burns, J., concurred.

       PA 1933, No 167, § 2, as amended by PA 1960 (2d Ex gess), No 1 (CLS 1961, § 205.52 [Stat Aim 1960 Eev § 7.522]).


author: Burns, J.

text:
    THORNTON CONSTRUCTION COMPANY, INC. v. MACKINAC AGGREGATES CORPORATION.
    1. Contracts — Unexpressed Time of Performance — Presumption of Reasonable Time.
    A reasonable time is to be presumed without reference to parol evidence when a written contract is silent as to the time of performance.

      2. Evidence — Parol Evidence.
    The parol evidence rule is a rule of substantive law as well as a rule of evidence.
    3. Same — Parol Evidence — Objection.
    Parol evidence is ignored in a proper ease for the application of the parol evidence rule, even if the parol evidence is received without objection.
    4. Contracts — Reasonable Time — -Question of Pact.
    What constitutes a reasonable time for the performance of a contract under the terms and surrounding circumstances of the contract is a question of fact.
    5. Same — Reasonable Time — -Evidence.
    Consideration by trial judge of nature of the construction industry and written contract for sale of aggregates for road construction, which did not mention time for performance, as the best indicia of reasonableness in determining a reasonable time for performance was proper.
    References for Points in Headnotes
    [1, 5, 7] 17 Am Jur 2d, Contracts § 329 et seq.

    [2] 30 Am Jur 2d, Evidence § 1017.
    [3] 30 Am Jur 2d, Evidence § 1016 et seq.

    [4] 17 Am Jur 2d, Contracts § 330.
    [6] 5 Am Jur 2d, Appeal and Error § 839 et seq.

    [8] 5 Am Jur 2d, Appeal and Error § 962.
    [9] 5 Am Jur 2d, Appeal and Error § 1014.

      6. Appeal and Error — Finding op Fact.
    Findings of fact shall not be set aside unless clearly erroneous (GCR 1963, 517.1).
    7. Contracts — Reasonable Time por Performance.
    Finding by trial court that reasonable time for performance of written contract for removal of paving aggregates from defendant’s quarry which did not mention time, had not expired on June 14, 1963, when defendant made further performance impossible, held, not elearly erroneous, where plaintiff had removed about 1/2 the aggregates in the fall before, but refused to remove the remainder in the following spring until a third party had paid plaintiff on its account and designated a delivery point for the remaining aggregates, defendant knew that completion date for the highway project on which aggregates were used was July 15 and knew that on highway contracts there might be extensions and delays, and defendant had drawn the written contract.
    8. Appeal and Error — Remand—Damages—Additional Evidence.
    Judgment for plaintiff in nonjury aetion is remanded for the taking of additional evidence of costs incurred in order to be more specific as to amount plaintiff is entitled to recover and as to an item of plaintiff’s liability of defendant’s counterclaim needing determination for use in another action.
    9. Costs — Neither Party Prevailing in Full.
    No costs are awarded on appeal when neither party prevails in full.
    Appeal from Mackinac; Glennie (Philip J.), J., presiding.
    Submitted Division 3 October 6, 1967, at Marquette.
    (Docket No. 3,164.)
    Decided March 18, 1968.
    Rehearing denied April 25, 1968.
    Action by Thornton Construction Company, a Michigan corporation, against Mackinac Aggregates Corporation, a Michigan corporation, for breach of contract. Defendant counterclaimed. Judgment for plaintiff on claim and for defendant on part of counterclaim. Defendant appeals.
    Affirmed in part and reversed in part and remanded for new trial on issue of plaintiff’s damages.

      Norman McLean, for plaintiff.

      Brown é Brown, for defendant.
   Burns, J.

Defendant appeals a judgment of the circuit court which awarded plaintiff damages for breach of contract and only awarded defendant part of its counterclaim.

On September 22, 1962, the disputing parties in this case executed a written contract wherein Mackinac Aggregates Corporation (Mackinac) granted Thornton Construction Company (Thornton) permission to remove from defendant’s Romano pit “all of the concrete paving aggregates required for the 1-75 described as project No. BI49025 E 18 RN and C 19 RN.” After taking approximately one half of the aggregates in the fall of 1962, Thornton refused to remove the remainder of the sand and gravel in 1963 until the paver, Pierson Construction Company, paid on its account with plaintiff and designated a delivery point. Defendant allegedly considered Thornton’s action as a repudiation of the contract and sold the Romano pit equipment on June 14,1963, thereby rendering plaintiff’s performance impossible and forcing plaintiff to use other sources. Plaintiff sued for breach of contract and defendant counterclaimed. A nonjury trial resulted in a judgment for plaintiff which was substantially offset because of plaintiff’s failure to replace defendant’s stockpile of aggregates.

Defendant appeals from the trial judge’s denial of its motion for a new trial and raises the following questions:

“1. Was there a repudiation of the contract by Thornton 1
“2. Were there legally sufficient proofs to justify the $20,000 awarded to plaintiff 1”

The repudiation argument is predicated upon the existence of a time provision which defendant sought to establish by parol evidence. Defendant’s witnesses testified that it was understood that one half of the job was to be done in the fall of 1962 and one half was to be done in the spring of 1963 as soon as the weather permitted. This alleged agreement was denied by plaintiff’s witnesses. The contract itself is silent as to the time of performance by plaintiff.

“When a written contract is silent as to time of performance, a reasonable time is to be presumed without reference to parol evidence.” Brady v. Central Excavators, Inc. (1947), 316 Mich 594, 607, and authorities therein cited.

Since the parol evidence rule is a rule of substantive law as well as a rule of evidence (Salzman v. Maldaver [1946], 315 Mich 403), we conclude that the parol evidence in this case must be ignored as having no probative value even though it was admitted without objection. See 4 Williston on Contracts (3d ed), § 631.

What constitutes a reasonable time under the terms and surrounding circumstances of a contract is a question of fact. Reinforced Concrete Pipe Co. v. Boyes (1914), 180 Mich 609, 616. Although Thornton’s immediate need for aggregates suggested a sense of emergency at the time of executing the contract, the trial judge properly considered the contract and the nature of the construction industry as the best indicia of reasonableness. The completion date for the highway project referred to in the contract was July 15, 1963. Defendant had also bid on this project and was, therefore, familiar with this date. The trial court found that “Defendant also was aware that in any of such road contracts that there might he extensions and delays.” Inasmuch as defendant drafted the contract in question, it was easily within its province to include a time of the essence clause (if such a clause could be agreed upon), but not having done so, the absence of a time provision militates against defendant’s position.

In conclusion the trial court found as fact:

“The action of plaintiff in delaying production of aggregates to force Pierson to make payments were all within the reasonable time limitation as provided by the terms of the contract.”

“Findings of fact shall not be set aside unless clearly erroneous.” GCR 1963, 517.1. The trial court’s determination was not clearly erroneous on the first issue.

Regarding the second issue, we find that plaintiff’s proof of damages was inadequate to establish any certainty upon which a judgment could be based, and, therefore, the amount of damages awarded plaintiff was unduly speculative. For the sole benefit of the parties and the trial judge who must rehear the issue of damages, we have carefully reviewed the record and plaintiff’s exhibit which sets forth its theory of damages, and find the following:

1. The loss of the transformer is supported by the record.

2. The extra cost to produce stone aggregates is an unacceptable conclusion in that there was no testimony demonstrating Thornton’s basic cost of production at its Pine river quarry. It would be improper for this Court or the trial court to assume, without more precise facts, that plaintiff’s cost of operation at the Pine river quarry was identical to Thornton’s cost at the Romano pit.

3. The alleged loss due to the inability to produce sand is unrealistic. Plaintiff’s controller testified' that plaintiff’s alleged cost of 10 cents per ton was an additional expense incurred by processing the sand as a by-product of the gravel-producing operation. To be fair in computing this factor, some cost must be allocated from the total cost of producing all three aggregate classifications. The controller more or less admitted this but was not equipped to fix a factor.

4. The hauling savings to plaintiff is supported by the record.

5. The cost of reactivating the Pine river quarry is unsubstantiated by the record. The testimony of plaintiff’s controller in this regard was:

“This item was worked up by Mr. Thornton. He is more familiar with the trucking portion and the hauling portion, so I have this figure, and in checking over his items, they look reasonable to me. But, for the last 6 or 8 years I have not had too much experience, and I don’t know the current rating on that.”

“Mr. Thornton” never confirmed this item. James Thornton had already testified that the cost of reactivating the pit and the reduction in hauling expense was approximately equal. If this approximation was accurate, then plaintiff’s exhibit was in error.

6. The amount of salable aggregates contaminated and resulting in monetary loss therefrom is unspecified. on the exhibit and on the record, and hence should not be a factor upon which to base damages.

7. The amount of Pierson Construction Company’s claim against Thornton was contingent upon the result of another lawsuit at the time of the trial. An assessment against defendant based on this undetermined claim is premature until it becomes clear that Thornton is liable for the estimated amount of the damages.

The case is affirmed in part and reversed in part and remanded for a new trial on the issue of plaintiff’s damages.

No costs, neither party having prevailed in full.

Fitzgerald, P. J., and Holbrook, J., concurred.


text:
    MATTSON v. GENERAL MOTORS CORPORATION.
    1. Motions — Directed Verdict — Issue op Pact to Submit to Jury.
    The critical question in deciding whether to grant a motion for a directed verdict is whether there is an issue of faet which must be submitted to the jury.
    2. Damages — Question por Jury — Breach op Warranty.
    Plaintiff’s claim that a jury was entitled to decide the extent of damages resulting from breach of warranties held, without merit, where there was no testimony regarding the existence of an implied contract, the express warranty was never breached, and the alleged warranty implied by law was disclaimed by plaintiffs in a written new car warranty.
    3. Sales — Avoiding Implied Warranties.
    Vendor, to avoid the warranty which the law implies, must incorporate it in his contract or insert in the contract a warranty whieh will exclude all others.
    4. Same — Express Warranty Precludes Implied Warranty.
    Language that the warranty is expressly in lieu of any other warranties, expressed or implied, including any implied warranty of merchantability or fitness for a particular purpose held, expressly to exclude all implied warranties.
    References por Points in Headnotes
    [1, 2] 53 Am Jur, Trial § 332.

      '■Appeal from Iionghton; Brennan (Leo J.), J.
    Submitted Division 3 October 6, 1967, at Marquette.
    (Docket No. 2,504.)
    Decided March 18, 1968.
    Complaint by Heimo and Helen Mattson against General Motors Corporation, Buick Motor Division, a Delaware corporation, for special and consequential damages resulting from breaches of expressed and implied warranties. Directed verdict and judgment for defendant. Plaintiff appeals.
    Affirmed.

      Wisti, Jaaskelainen & Schrock/ for plaintiff.

      Messner & La Bine, for defendant.
   Burns, J.

Plaintiffs appeal from a directed verdict against their claim for special and consequential damages allegedly resulting from breaches of expressed and implied warranties.

On November 15,1963, defendant’s dealer in Hancock, Michigan, sold plaintiffs a new 1964 Buick automobile. At the time of the sale Mr. Mattson read the following new car warranty:

“Buick motor division of General Motors Corporation, as manufacturer, warrants each new motor vehicle and chassis including all equipment and accessories thereon (except tires and tubes), manufactured or supplied by Buick motor division and delivered to the original retail purchaser by an authorized Buick dealer, to be free from defects in material and workmanship under normal use and service; Buick motor division’s obligation under this warranty being limited to repairing or replacing at its option any part or parts thereof which shall, within 24 months after delivery of such vehicle or chassis to the original retail purchaser or before such vehicle or chassis has been driven 24,000 miles, whichever event shall first occur, be returned to an authorized Buick dealer at such dealer’s place of business and which examination shall disclose to manufacturer’s satisfaction to have been thus defective. The repair or replacement of defective parts under this warranty will be made by such dealer without charge for parts, and if made at such dealer’s place of business, without charge for labor. * * *
“This warranty is expressly in lieu of any other warranties, expressed or implied, including any implied warranty of merchantability or fitness for a particular purpose, and of any other obligations or liability on the part of the manufacturer, and Buick motor division neither assumes nor authorizes any other person to assume for it any other liability in connection with such motor vehicle or chassis.”

On Thursday, March 19, 1964, Mr. Mattson, his daughter, and 2 other passengers began a trip in the vehicle to East Detroit. In the vicinity of Clare, Michigan, the automobile malfunctioned and temporary repairs had to be made in order to complete the journey to East Detroit. Upon receiving instructions from defendant’s public relations department on Friday, Mr. Mattson took the ear to a Buick service agency in Flint. When he was informed that nothing could be done until Monday, he returned by bus to East Detroit. Since his daughter had to be back at school on Monday, Mr. Mattson and his daughter travelled to Hancock by bus on Saturday.

The next week Mr. Mattson was notified that the Buick had been repaired free of charge and could be picked up at any time. Plaintiffs, however, felt that they would have “more trouble” with the car and, consequently, requested the reimbursement of their purchase money. The vehicle was sold, and the difference between the selling price and the amount owed on plaintiffs’ chattel mortgage was deposited to their account at a Hancock bank. Thereafter plaintiffs commenced this civil action alleging that when Heimo Mattson took the automobile to Flint, there arose an implied contract to the effect that the automobile would be repaired immediately and that the defendant breached said implied contract, the expressed warranty, and the implied warranty. Plaintiffs asked damages for defendant’s failure to reimburse them for travel expense to and from Flint, mental anguish and the purchase price of the automobile.

In directing the verdict, the trial judge stated, “The court has come to the conclusion that the plaintiffs have failed to meet the burden of proof by a preponderance of evidence.” This clearly is the wrong standard upon which to premise a directed verdict. Moments later, however, it became apparent that the judge had misspoken and was applying the correct law; the judge said to the jury, “Had there been any elements here of disputed facts whatsoever, the case would have been submitted to you.” The critical question in deciding whether to grant a motion for a directed verdict is whether there is an issue of fact which must be submitted to the jury. 2 Honigman and Hawkins, Michigan Court Buies Annotated (2d ed), § 515, author’s comments, p 529. The trial judge not only properly employed this test, but he also made the correct determination.

Plaintiffs claim, however, that the jury was entitled to decide the extent of damages which allegedly arose because of the breach of warranties.

The proofs in this case did not justify an assessment of damages by the jury. There was no testimony regarding the alleged existence of an implied contract that the automobile would be repaired immediately. The expressed warranty was never breached; the defendant did exactly what it warranted it would do. The alleged warranty implied by law was disclaimed by plaintiffs in the new car warranty, supra. In Little v. G. E. Van Syckle & Co. (1898), 115 Mich 480, 483, the Court said:

“If a vendor * * * desires to avoid that warranty which the law implies, he must incorporate it in his contract, or insert therein a warranty which will exclude all others.”

The contract in dispute in Kolodzcak v. Peerless Motor Co. (1931), 255 Mich 47, 48, provided:

“ ‘There are no understandings, agreements or warranties, expressed or implied, not specified herein, respecting this contract or the goods hereby ordered.’ ”

This language was held to expressly exclude all implied warranties. The disclaimer in the present case has the same effect.

Judgment affirmed. Costs to appellees.

Fitzgerald, P. J., and Holbrook, J., concurred.


text:
    BOROST v. DOYLE.
    1. Appeal and Error — Equity Cases — Witnesses.
    Trial court who saw and heard the witnesses in a suit for specific performance of an oral contract to make a will is in the best position to judge their credibility, and, therefore, the Court of Appeals will not substitute its judgment for that of the trial court on questions of fact, unless the findings are clearly erroneous (GCR 1963, 517.1).
    2. Specific Performance — Oral Contract to Make a Will — Evidence.
    Trial judge’s finding that the proofs were insufficient to establish an oral contract to make a will and that if a contract existed it was abandoned by the plaintiff, held, substantiated by sufficient evidence in action for specific performance of the alleged eontraet under which deceased father would give all of his property to plaintiff son if latter would stay on deceased’s farm and perform the services required to operate the farm.
    3. Trial — Hearsay—Admissibility—Substantial Justice.
    Erroneous admission of hearsay evidence over plaintiff’s objection in trial of action for breach of oral contract to make a will is not ground for reversal of judgment for defendants, where the error did not affeet the substantial rights of the parties (GCR 1963, 529.1).
    References for Points in Headnotes
    5 Am Jur 2d, Appeal and Error § 839 et seq.

    57 Am Jur, Wills § 192 et seq.

      5 Am Jur 2d, Appeal and Error § 737.
    Appeal from Menominee; Brown (Ernest W.), J.
    Submitted Division 3 October 6, 1967, at Marquette.

      (Docket No. 2,722.)
    Decided March 18,1968.
    Leave to appeal denied May 29,1968.
    See 381 Mich 753.
    Complaint by Victor Borost against Thurman B. Doyle, administrator with the will annexed of the estate of Mike J. Borost, deceased, Dolores Alexander, Helen Turznik, Rose Dombrowski Schultz, Alex Borost, Alice Hatten, Florence Smith, and Annie Weber for specific performance of an oral contract to make a will. Judgment for defendants. Plaintiff appeals.
    Affirmed.

      Paul Rohm, for plaintiff.

      Lundgren & Sawyer, for defendants.
   Burns, J.

Plaintiff Victor Borost appeals from an order dismissing his complaint seeking specific performance of an oral agreement to make a will.

Plaintiff is the youngest child of the deceased Mike J. Borost. It was alleged in the complaint that sometime in 1947 Mike Borost promised the plaintiff that if the plaintiff would stay on the farm owned by his father and perform the services required to operate the farm, Mike Borost would give all of his property to the plaintiff. Plaintiff further averred that he relied upon his father’s promise, remained on the farm and performed the services required to operate it.

The testimony is abundant that on many occasions Mike Borost made statements to third parties to the effect that because the plaintiff had remained on the farm, upon his death all of his property would belong to the plaintiff. One witness, Betty Jean Jessel, Victor’s fiancee, testified as to a conversation with Mike Borost as follows: “He said as long as Victor stayed home and did the work and that, that the home and property was his.”

After the noon recess she was recalled to the stand and testified that Victor had wanted to go out and get a job but had promised his father that “he would stay home and do the work.”

There is also testimony in the record that during the last few years of Mike Borost’s life Victor started to work at a factory and during the summer of 1962 Mike Borost sold the cattle which practically ended the farm operation.

On December 29,1962, Mike Borost executed a will leaving his estate equally to his 8 children.

The trial judge found the testimony offered by the plaintiff indicated a testamentary intention on the part of Mike Borost rather than an existing contract to make a will and that even if there was a contract it was abandoned by the plaintiff during his father’s lifetime.

Plaintiff claims the court erred on 3 grounds:

(1) The court erred in holding that the proofs were insufficient to establish an oral contract;
(2) The court erred in holding that if a contract existed it was abandoned by the plaintiff;
(3) The court erred by allowing hearsay and self-serving testimony to be admitted over the objections of plaintiff.

In Paris v. Scott (1934), 267 Mich 400, 403, 404, the Court stated:

“In cases of this kind, the testimony of witnesses must be viewed with great caution, because of the frailties of memory, the improbability of repeating the precise language of a person since deceased, of fairly expressing the full state of mind of such person, and because the change of a word may mean the . difference between a binding contract and a mere expression of intention. Care must also be taken lest the court, out of considerations of equity or sympa-. thy, make a contract for the parties where none existed, even though such contract might or would express their desires. Where the alleged contracting parties cannot testify, their acts loom large as compared with what witnesses say they said.
“Without attacking the credibility of any of the witnesses, the case presents persuasive indices that the conversations relied upon were merely expressions of intention rather than of a contract which Fred and Alice Paris considered binding on them. # * $
“When Fred was talking of his will after her death, it is obvious he did not recognize a binding-obligation to her to leave his property to plaintiff because, in spite of his intense distress at the letter, he was still interested in learning the effect of intestacy and wanted further time to think over the matter of making a will.”

In the present case the making of a will by Mike Borost after the farming operation had ceased also indicates that decedent did not recognize a binding contract to leave his estate to plaintiff. The trial court had the witnesses before it, saw and heard them, and is in the best position to judge their credibility. This Court will not substitute its judgment for that of the trial court on appeal unless such findings are clearly erroneous. See GCB. 1963, 517.1. There was sufficient evidence to substantiate the trial judge’s finding.

Our disposition of the first claim of error makes it unnecessary to discuss the second claim of error. A review of the record indicates that hearsay testimony was admitted over the objections of the plaintiff. The trial court was in error in receiving such testimony. However, GCB 1963, 529.1 provides:

“No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice.”

The error in question did not affect the substantial rights of the parties.

Judgment affirmed. Costs to appellees.

Fitzgerald, P. J., and Holbrook, J., concurred.


author: Vander Wal, J. Levin, J.

text:
    PEOPLE v. KEYS.
    Opinion op the Court.
    1. Indictment and Information — Indorsement op Witnesses.
    The prosecuting attorney is required, by statute, to file an information with the court having jurisdiction of an offense after a proper return is filed by the examining magistrate, indorsing thereon the names of witnesses known to him at the time of filing, but names of additional witnesses may be indorsed before or during the trial by leave of court and upon such conditions as the court shall determine (CLS 1961, § 767.40).
    2. Same — Res Gestae Witnesses — -Indorsement.
    The indorsement of an additional res gestae witness after an information has been filed is, under the statute, solely a matter of judicial discretion, where it is not shown that the prosecuting attorney knew of the additional witness at the time of filing the information (CLS 1961, § 767.40).
    References por Points in Headnotes
    [1-6] 21 Am Jur 2d, Criminal Law § 328; 27 Am Jur, Indictments and Informations §§ 43, 150.
    [7, 10-12] 6 Am Jur 2d, Assault and Battery § 69 et seq.

    [8, 9] 5 Am Jur 2d, Appeal and Error § 623.
    [13] 5 Am Jur 2d, Appeal and Error § 890.
    [14,15] 53 Am Jur, Trial § 650.

      3. Same — Res Gestae Witness — Judicial Discretion — Burden of Proof.
    Indorsement of the names of additional witnesses after the filing of an information is wholly within the discretion of the court, which must be exercised with due regard to protection of an accused’s right to prepare his defense and to be accorded a fair trial, the ultimate question, on review, being whether the court abused its discretion, with the burden ordinarily on the party asserting such abuse (CLS 1961, § 767.40).
    4. Criminal Law — Indorsement of Res Gestae Witness- — Discretion of Court.
    Conviction of felonious assault need not be reversed for failure of the prosecutor to call and indorse an alleged res gestae witness, where the record indicates that defendant made no statement to the prosecuting attorney, preliminary examination was waived, prosecutor had no knowledge of the existence of the alleged res gestae witness until late in the trial, testimony as to the presence of the witness was conflicting, and defendant knew of the presence of the witness long before trial, and while basing his entire defense thereon, made no motion for indorsement of the witness on the information, sinee, by statute, the indorsement of additional witnesses after the information has been filed is a discretionary matter for the trial court, and it was not an abuse of discretion under the circumstances for the court to fail to order the indorsement (CL 1948, §§ 750.82; CLS 1961, § 767.40).
    5. Same — Indorsement of Res Gestae Witness — Waiver.
    Defendant convicted of felonious assault held, to have waived the people’s failure to eall an alleged res gestae witness, where such waiver was expressly made in open court through counsel (CL 1948. § 750.82; CLS 1961, § 767.40).
    6. Indictment and Information — Indorsement of Res Gestae Witness — Discretion of Court.
    It was not an abuse of discretion for the trial court to fail on its own motion to order that an alleged res gestae witness be indorsed upon the information, where the record does not affirmatively establish that the prosecutor had any knowledge of the identity of the witness until late in the trial, testimony is inconclusive as to whether he was, in fact, a res gestae witness, defendant made no motion to have the witness indorsed on the information although his entire defense was based on the presence of the witness, and the defendant eould, but did not, subpoena tbe witness to testify on his behalf (CLS 1961, § 767.40).
    7. Same — Felonious Assault — Instructions—Self-Defense.
    Claim by defendant, whose defense to a charge of felonious assault upon one person was that he fired his revolver iu an attempt to defend himself against knife attack by another person, that the trial court committed reversible error in instructing the jury that self-defense was not an issue in the case held, without merit, where the court instructed the jury that they must aequit defendant unless they found, beyond a reasonable doubt, that he pointed and fired a loaded revolver at the person named in the information with the intent to shoot or hurt that person, since such instruction required a verdict of not guilty if he did not shoot at the person charged regardless of whether defendant was attempting to defend himself against another (CL 1948, § 750.82).
    8. Appeal and Error — Criminal Law — Instructions—Objections.
    A party may not assign as error the giving or failure to give an instruction unless he objects before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection (GCR 1963, 516.2).
    9. Same — Criminal Law — Instructions — Self-Defense — Failure to Object.
    Claim of defendant, whose defense to a eharge of felonious assault upon one person was that he was attempting to defend himself from a knife attack by another person, that the trial court committed reversible error in instructing the jury that self-defense was not a proper issue in the case held, not properly before the Court of Appeals, where the record reveals that defendant not only failed to object to the instructions, but, after inquiry from the eourt, also specifically stated that he had no requests or remarks to make with respect to the court’s eharge (CL 1948, § 750.82; GCR 1963, 516.2).
    Dissenting Opinion.
    Levin, J.
    10. Criminal Law — Felonious Assault — Self-Defense.

      The gist of “self-defense” as a defense to a charge of felonious assault is the clavm that the defendant’s actions were justified under the circumstances in which he acted (CL 1948, § 750.82),

      11. Same — Felonious Assault — Self-Defense.

      Self-defense as justification in a prosecution for felonious assault does not require an admission by the defendant that he committed the felonious assault by firing a gun at complaining witness, because defendant could be convicted of felonious assault without proof that he fired at all or proof that he fired in the direction of the complaining witness (CL 1948, § 750-

    12. Same — Felonious Assault — Self-Defense—Instruction.

      Instruction to jury that self-defense could not be asserted in prosecution for felonious assault because the defendant denied shooting in the direction of the complaining witness was incorrect (CL 1948, § 750.82).

    13. Same — Instructions—Presumptions.

      Presumption is that the jury followed the erroneous instruction, where conflicting instructions are given, one erroneous and the other correct.

    14. Same — Instructions — Essential Ingredient — Bequest to Charge.

      A charge to the jury in a criminal case which omits a legally essential ingredient may constitute reversible error, even though the defendant has not requested a correct instruction (CL 1948, §768.29).

    15. Same — Instructions—Felonious Assault — Self-Defense.

      Failure of trial judge to charge the jury correctly on the issue of self-defense was error in case where the crux of the entire defense was whether the defendant’s admitted show of force in firing of a shot was justified, and the judge had the duty to charge the jury correctly without regard to whether there was a request for a correct charge on the issue (CL 1948, §§ 750.82, 768.29).

    Appeal from Kecorder’s Court of Detroit; Krause (Paul E.), J.
    Submitted Division 1 April 4, 1967, at Detroit.
    (Docket No. 2,008.)
    Decided March 19, 1968.
    Kehearing denied May 31,1968.
    John Keys was convicted of felonious assault.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan. Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Luvenia D. Doekett, Assistant Prosecuting Attorney, for the people.

      Perdue, Burton S Holliday, for defendant.
   Vander Wal, J.

Defendant was charged with felonious assault on Clayton Eichardson with a revolver contrary to CL 1948, § 750.82 (Stat Ann 1962 Eev § 28.277). The source of the dispute was defendant Keys’ intimate personal relationship with Jo Anne Julian, daughter of Elizabeth Eichardson by a previous marriage and wife of Dallas Julian. Jo Anne’s family apparently did not approve of her relationship with defendant Keys.

At trial there was conflicting testimony as to who was present when the shot was fired. According to Clayton Eichardson, complaining witness and stepfather of Jo Anne Julian, the gun, immediately before it was fired, was aimed directly at him. Eichardson’s testimony was substantially corroborated by that of two res gestae witnesses, his wife Elizabeth and his daughter-in-law, Juanita Marlow, the wife of Eaymond Marlow.

Defendant Keys testified that he fired the revolver into the air on the driver’s side of his automobile in order to defend himself against Eaymond Marlow, the son of Elizabeth Eichardson by a previous marriage and stepson of the complaining witness. Defendant’s story that Eaymond was approaching with two butcher knives in his hands was supported by the testimony of Brenda McCullough who was seated beside defendant Keys in his automobile when the shot was fired. Her testimony was that the shot was fired across her and out the window on her side of the automobile, but that it was fired into the air rather than directly at anyone.

The case was tried on two diametrically opposed theories. The people claimed that the assault was made upon one Clayton Richardson and the defense claimed that no assault was made upon Richardson, but that if an assault was made, it was made upon one Raymond Marlow and in self-defense.

On appeal the defendant seeks reversal of the trial court judgment and either a new trial or a court order for the entry of a verdict of not guilty. Appellant raises two issues for our consideration:

1. Did the prosecutor’s failure to indorse and call Raymond Marlow as a res gestae witness deny the accused his right to be protected against false accusation?

2. Did the trial court err in instructing the jury that the defense of self-defense was not available to the appellant?

The legislature has spoken concerning the first issue.

“All informations shall be filed in the court having-jurisdiction of the offense specified therein, after the proper return is filed by the examining- magistrate, by the prosecuting attorney of the county as informant; he shall indorse thereon the names of the witnesses known to him at the time of filing the same. The information shall be subscribed by the prosecuting attorney or in his name by an assistant prosecuting attorney. Names of additional witnesses may be indorsed before or during the trial by leave of the court and upon such conditions as the court shall determine.” CLS 1961, § 767.40 (Stat Ann 1965 Cum Supp § 28.980).

Defendant made no showing- on the record that the prosecuting attorney at the time of filing the information knew that Raymond Marlow was a res gestae witness. It is clear from the statute, therefore, that the indorsement of Raymond Marlow as a res gestae witness after the information was filed was solely a matter of judicial discretion. We quote the controlling case of People v. McCrea (1942), 303 Mich 213, 272: “The test to be applied in the present case is whether the trial court abused its discretion in ordering the names of certain witnesses, alleged to be res gestae witnesses, to be indorsed on the information after filing.” The Court in that case quoted with approval People v. Blue (1931), 255 Mich 675, 678 to the following effect:

“ ‘Under the code, the indorsement of names after filing is wholly within the discretion of the court. The discretion, of course, is judicial, not personal, must be exercised with due regard to protection of the right of an accused to prepare his defense and to be accorded a fair trial, and is to be reviewed upon the showing made and in view of the circumstances. * * * Tbe ultimate question, on review, is whether the court abused its discretion, with the burden ordinarily on the party asserting abuse.’ ” (Emphasis added.)

See, also, People v. Jackson (1947), 318 Mich 506, 509 and People v. Tamosaitis (1928), 244 Mich 258, 261.

Defendant in the instant case fails in his burden of showing an abuse of judicial discretion. It appears from the record that defendant Keys made no statement to the prosecuting attorney and waived preliminary examination. The prosecutor learned of the presence of Brenda McCullough at the scene only after the trial had begun. In his opening statement defense counsel did not mention Raymond Marlow’s name and failed to make a motion for his indorsement as a witness at any time during the trial. The first 2 witnesses for the prosecution did not testify to facts placing Raymond Marlow at the scene. There is nothing on the record to indicate that the prosecuting attorney and the court did not learn of Raymond Marlow for the first time late in the trial when Juanita Marlow testified that Raymond Mar-low had gone to the Julian home also. Brenda McCullough testified that defendant Keys was defending himself against Raymond Marlow.

After defendant Keys also testified to facts placing Raymond Marlow at the scene, the prosecutor and the court were faced with conflicting testimony upon which a conclusion of fact was to he based. On appeal we cannot concern ourselves with the judgment of the prosecutor. If the court decided that Raymond Marlow was not an eyewitness, it was not compelled to order his indorsement on the information. The only evidence to substantiate defendant’s own testimony placing Raymond Marlow at the scene was the word of defendant’s teen-age girl friend whose story did not coincide in certain important details with that of defendant. It is not established upon the record that Raymond Marlow was a res gestae witness. It was not error, therefore, to fail to indorse his name upon the information and call him as a res gestae witness. Ultimately, of course, it was for the jury to determine against whom force was offered. Considering the diametrically opposed testimony, it is clear from the jury’s verdict that the jury did not believe that Raymond Marlow was at the scene of the offense; this Court cannot and will not interfere with any supported factual determination by the jury.

There is reason to believe - from the record that although the prosecuting attorney was unaware that the defendant would claim as a defense that his altercation was with Marlow and not Richardson, nevertheless, defense counsel had full knowledge concerning Raymond Marlow’s alleged presence at the scene after interviewing his client, Keys, because that was his whole defense. Yet, counsel for defense never made a motion to require the indorsement on the information. No motion was ever made to require the prosecutor to produce Raymond Mar-low. The defendant never subpoenaed Raymond Marlow nor called him as a witness in his own behalf although he had an established right to do so. Immediately after Brenda McCullough’s testimony which placed Raymond Marlow at the scene, the following colloquy took place out of the hearing of the jury when counsel approached the bench:

“Mr. Laster: I have discussed with counsel relative to producing the balance of the witnesses listed on the information, namely David Mason, Merle Harrington, Glenn Apers, Edward Rea, Robert Carr, Keith Chesney, Robert Green, Walter Lorkowsld, and Raymond Garstecki. All of these are police officers.
“Mr. Polk: And none of them are eyewitnesses ?
“Mr. Laster: No eyewitnesses.
“The Court: Who is Merle Harrington?
“Mr. Laster: He is here. He is the one sitting there.
“The Court: I have a hard time with names. Who did she say?
“Mr. Laster: She said Raymond Marlow.
“The Court: Isn’t here?
“Mr. Laster: No. The husband of Juanita Mar-low.
“The Court: Raymond?
“Mr. Laster: Yes.
“The Court: Okay.
“Mr. Polk: We will waive them.
“The Court: Now, when the jury is gone I am going to ask your client if he waives these people.
“Mr. Polk: Yes. I know what you mean.
“The Court: All right.”

Defendant is precluded by Ms own express waiver at trial from complaining of any failure to indorse or produce Raymond Marlow.

Where the record fails to affirmatively establish that the prosecuting attorney had any knowledge of the identity of a person alleged to be an eyewitness to the crime, particularly when there has been no conclusive showing on the record that such person was, in fact, a res gestae witness and defendant has made no motion to have the alleged witness indorsed upon the information nor called such witness on his own behalf, the failure of the court to order the indorsement on its own motion does not constitute an abuse of judicial discretion. People v. McCrea (1942), 303 Mich 213, 267-275; People v Kynerd (1946) , 314 Mich 107, 113-116; People v. Bartlett (1945), 312 Mich 648, 653-656; People v. Jackson (1947) , 318 Mich 506, 508, 509; People v. Mangiapane (1922), 219 Mich 62, 68; People v. Todaro (1931), 253 Mich 367, 370; People v. Hoffman (1908), 154 Mich 145, 147; People v. Keywell (1931), 256 Mich 139, 141; People v. Hawthorne (1940), 293 Mich 15, 21; People v. Hallman (1941), 299 Mich 657, 659, 660; People v. Vick (1926), 235 Mich 475, 477-480; People v. Dimitroff (1948), 321 Mich 205, 209, 210.

With respect to the second issue, we hold that the court’s instructions were proper. Defendant is charged with feloniously assaulting one Clayton Richardson. The defendant made no claim that he was defending himself against the complaining witness Clayton Richardson.

On the issue of self-defense the trial court instructed the jury as follows:

“Now, if I was armed with a dangerous weapon, a gun, pointed it at a person with the intent to harm him even though I didn’t harm him, that would be assault. That would be felonious assault, assault with a dangerous weapon.
“That is the issue you have to decide in this case. That is what the defendant is charged with. And this is rather important, from the evidence: This intent and the assault must have been made, if there was one made — and that is a matter for you — upon Clayton Richardson. Now, if he pointed a revolver or shot at anybody else than him, as far as we are concerned in this particular case, the defendant, you have to return a verdict of not guilty. Before you can convict the defendant of this charge you must find beyond a reasonable doubt that on the day and date in question the defendant pointed a loaded revolver at or in the immediate direction of Clayton Richardson with the intent to shoot, to hurt him. Now, that is felonious assault. The people must prove every essential element of that charge beyond a reasonable doubt.
“Now, the defendant sort of claims that if he did shoot he shot in self-defense. But he can’t claim self-defense in this case because he denies he ever shot in the direction of the complaining witness. Therefore self-defense would not be available in this particular case because of the defendant’s own contention.”

It is a matter of sound logic that if defendant offered force against anyone other than Clayton Richardson the verdict must be not guilty regardless of whether defendant offered force in order to defend himself. After instructing the jury, the trial court then asked defense counsel, “Are there any further requests or remarks in relation to my charge, Mr. Polk?” to which the response was “No request, Your Honor.” Defendant is precluded by court rule from raising this objection to a jury instruction for the first time on appeal.

“No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.” OCR 1963, 516.2.

An examination of the record and transcript discloses no objection raised by defendant on this point. In open court immediately prior to the conclusion of the trial in response to a query by the court defendant expressly denied any claim of error in the instructions.

Judgment affirmed.

T. Gr. Kavanagh, P. J., concurred with Vander Wal, J.

Levin, J.

(dissenting). Clayton and Elizabeth Richardson learned during the evening of July 11, 1965, that their young grandchildren (the children of Mrs. Richardson’s daughter, Jo Anne Julian) were on the street unattended. Searching for the children, Elizabeth Richardson and a daughter-in-law knocked on the door of a neighborhood apartment where the children were last seen. The door was answered.by the defendant, John Keys, whom the Richardsons believed to have been “messing around” with Mrs. Julian. Mrs. Richardson testified she greeted the defendant as follows: “Where is my daughter, you black nigger?” Mrs. Richardson and her daughter-in-law, Juanita Marlow, testified the defendant made no audible reply; instead he left the house and headed for a parked automobile.

Mr. Richardson appeared on the street and found his wife “screaming and yelling.” He testified:

“I went to the corner and I said, ‘Where is John [the defendant] at?’ Well, John wasn’t there. He had already got out of the house and went inside of a car about three car lengths from where I was standing at and the car was parked and he pulled up to the corner and said, Who is looking for John?’ I said, ‘I am looking for John. I will knock his damn block off.’ So he was right there by the corner before you go around the corner, just up to the corner and stop. And he reached by the glove box or something. He pulled out a gun and he said he got something for me and something for my son-in-law. He reached over the top of the girl’s arm. My wife said, ‘He got a gun.’ I didn’t see it. So she started running and I backed up and he shot.
“Q. How many times ?
“A. One shot he fired, sir.
“Q. And what happened then ?
“A. Well, he drove away.”

There was other testimony that the defendant aimed and fired the gun at Mr. Bichardson.

The defendant drove the car; beside him sat Brenda McCullough, who had been babysitting for Mrs. Julian. Miss McCullough testified, contrary to the Bichardsons’ testimony, that Baymond Marlow, Mrs. Bichardson’s son, was also present. Marlow, said Miss McCullough, told the defendant “that they had something for him and told him that Dallas [Julian] had a gun and John [the defendant] said, Well, that’s nothing. I have one too.’ ” She said that Marlow ran across the street to Mrs. Julian’s house and returned with a butcher knife in each hand, whereupon the defendant took the gun out of the glove compartment, fired across her into the air and drove away. Miss McCullough said Mr. Bichardson did not appear until after the gunshot. The defendant, who related fundamentally the same events as Miss McCullough, said he fired the shot because he was “afraid” and “wanted to get away from the corner.” He wanted “Raymond and them to know that I had something too.”

As the majority opinion notes, the trial judge correctly charged the jury that if it determined the defendant did not feloniously assault Mr. Richardson, it should return a verdict of not guilty, the offense charged being felonious assault against Mr. Richardson. CL 1948, § 750.82 (Stat Ann 1962 Rev § 28.277). The allegation of error concerns the portion of the charge which immediately followed:

“Now, the defendant sort of claims that if 5he did shoot he shot in self-defense. But he can’t claim self-defense in this case because he denies he ever shot in the direction of the complaining witness. Therefore self-defense would not be available in this particular case because of the defendant’s own contention.” (Emphasis supplied.)

The defendant never claimed he fired in self-defense in the direction of Mr. Richardson. The nature of his defense is revealed by his and Miss McCullough’s testimony and this portion of the defendant’s opening statement :

“at the time that John Keys fired the shot he was not firing at the complainant. He was in fear of his life or injury, — injury, not his life. He was firing to clear the street so he could drive away. If he had not fired he would not have been able to escape and avoid serious consequences for maybe both he and the complainant. And he was actually attempting to escape and it was an act of self-defense.”

Many phrases are used without regard to their origin or literal meaning. For example, “Hobson’s choice” is no choice at all, the “lion’s share” is not a part but the whole, and so on. Looking beyond our jargon, the gist of “self-defense” is the claim that the defendant’s actions were justified under the circumstances in which he acted.

In convicting the defendant, the jury must have concluded he feloniously assaulted Mr. Richardson. The jury should have been instructed that if it reached that conclusion, it must consider the defense of justification before rendering a guilty verdict. That should have been the instruction even though the defendant refused to concede his actions constituted a felonious assault on, or were directed at, Mr. Richardson. Not only did the trial judge fail so to charge, but he also charged that because the defendant refused to admit he fired in the direction of Mr. Richardson the shot admittedly fired, the jury could not consider his defense.

Our Court recently stated on the authority of People v. Doud (1923), 223 Mich 120, 129, that in a prosecution for felonious assault with a gun it is not necessary to prove the gun was loaded. People v. Williams (1967), 6 Mich App 412, 418. Compare State v. Herron (1892), 12 Mont 230 (29 P 819, 30 P 140), adopted in People v. Doud, supra. If it were not necessary to prove the defendant’s gun was loaded, then the defendant could have been convicted of felonious assault without proof that he fired at all and, likewise, without proof that he fired in the direction of Mr. Richardson. Since he could be convicted without proof he fired in the direction of Mr. Richardson then, contrary to the judge’s charge, he need not have admitted he fired in the direction of Mr. Richardson to offer his defense of justification.

The judge’s charge that self-defense could not be asserted because the defendant denied shooting in the direction of Mr. Richardson was palpably wrong. It is clearly incorrect to charge that a defendant may not plead that he acted reasonably under the circumstances if he shoots in the air, but only if he shoots in the direction of his assailant. It was the defendant’s duty to use the least force necessary to repel the alleged assault by Mr. Marlow armed with butcher knives.

In finding the defendant feloniously assaulted Mr. Richardson, the jury did not necessarily determine the defendant’s actions were not a similar assault upon Mr. Marlow, against whom the defendant and Miss McCullough testified the actions were directed. The jury could have found defendant’s actions had been directed at more than one person, and, thus, there is no inconsistency between defendant’s assertions that he did not assault Mr. Richardson and that his actions were justified.

Even if the jury believed that Mr. Richardson rather than, or in addition to, Mr. Marlow was at the scene when the gun was fired, it could still properly bring in a verdict of not guilty of felonious assault if it believed the gun was justifiably fired. Defendant need not have abandoned his claim that Mr. Marlow assaulted him, or accepted the Richardson-Marlow version of what occurred, in order to assert that the shot was justifiably fired. These disputed questions of fact were for the jury’s, not the judge’s, resolution.

The charge to the jury that “self-defense would not be available in this particular case,” was tantamount to an instruction that the jury could not believe the defendant’s and Miss McCullough’s testimony. Defendant claimed he shot the gun into the sky to protect himself from injury and to facilitate a safe retreat. It is undisputed that the defendant was not the initial aggressor at the time of the incident. He retreated once in the face of an incendiary expletive. Whether he was justified in firing the gun, i. e., whether there was an assault against him by either Mr. Richardson or Mr. Marlow, and whether that show of force was necessary to repel it, was for the jury to decide.

In People v. Wright (1906), 144 Mich 586, 589, 590, the court set aside defendant’s conviction of assault with intent to do great bodily harm less than murder and ordered a new trial, holding it was error to instruct the jury that if it should find the complainant had no knife, it must reject the claim of self-defense (p 590):

“The charge was erroneous in making the question of self-defense turn wholly upon the question of whether Penny [the complainant] had a knife. The rule that the respondent had the right to act upon the circumstances as they reasonably appeared to him was recognized in one portion of the charge, but this portion of the charge ignores this rule.”

In this case, one portion of the charge was correct, but the. subsequent portion was clearly incorrect because, for all practical purposes, it withdrew the defense offered from the jury’s consideration.

“"Where conflicting instructions are given, one erroneous and the other correct, we must presume that the jury followed the erroneous instruction.” People v. DeWitt (1925), 233 Mich 222, 226, quoted approvingly in People v. Kanar (1946), 314 Mich 242, 253, and People v. Clark (1954), 340 Mich 411, 418.

The prosecution relies on the failure of defendants’ trial counsel to object to the charge, even though given an opportunity to do so. In a number of jurisdictions operating under provisions requiring the trial judge to instruct the jury concerning the law, it has been held that where the defendant raises and supports with evidence the issue of self-defense, the trial judge must correctly charge the jury concerning that issue even if such charge is not requested. State v. Brice (1939), 190 SC 208 (2 SE2d 391, 392) (constitutional provision); in the following, the provision is statutory: Collegenia v. State (1913), 9 Okla Crim 425 (132 P 375, 378); State v. Browers (1947), 356 Mo 1195 (205 SW2d 721, 723); State v. Bryant (1938), 213 NC 752 (197 SE 530, 533). See, also, King v. Commonwealth (1920), 187 Ky 782 (220 SW 755, 757) (dictum, but no reference to any statutory or constitutional provision).

In People v. Guillett (1955), 342 Mich 1, the Court reconciled the following sentences in the governing statute (CL 1948, § 768.29 [Stat Ann 1954 Rev § 28.1052]) :

“The court shall instruct the jury as to the law applicable to the case,” and
“The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused,”
in these words (p 7): “even with the request absent, a case may still be reversed because the charge omits a legally essential ingredient.”

In an early ease, the court observed:

“Without any requests from counsel it is the duty of the circuit judge to see to it that the case goes to the jury in a clear and intelligent manner, so that they may have a clear and correct understanding of what it is they are to decide, and he should state to them fully the law applicable to the facts. Especially is this his duty in a criminal case. In this case it was not so done. Too much reliance is often placed upon counsel by the court in this respect for requests; but this should not be done. The court must do its duty in a criminal case, whether counsel do so or not. It is to the court that the accused has a. right to look to see that he has a fair trial.” People v. Murray (1888), 72 Mich 10, 16.

Accord: People v. Macard (1888), 73 Mich 15, 26, where the factual dispute concerned, as it does here, self-defense.

In this case, the crux of the entire case was whether the defendant’s admitted show of force and firing of the shot was justified. It was of fundamental importance that the trial judge correctly charge on that issue and, therefore, he had a duty to do so without regard to whether there was a request therefor.

Recently in People v. Liggett (1967), 378 Mich 706, 714, the Supreme Court ruled that “without a request, a case may be reversed because of an erroneous or misleading charge,” and in determining whether a charge is “erroneous or misleading” a “reasonable doubt” standard is to be applied. (Emphasis supplied.)

The defendant admitted he fired a shot. Under such circumstances it was misleading for the trial judge to advise the jury, first, it could not convict unless it found .the shot was in fact fired at Mr. Richardson, or he was otherwise feloniously assaulted, and, second, that the defendant could not claim self-defense because he refused to admit he fired in the direction of Mr. Richardson. The jury was in effect told to reject the defense offered. These instructions were both erroneous and misleading. In my opinion “it has not been demonstrated beyond a reasonable doubt that the trial judge’s instructions did not contribute to defendant’s conviction.” People v. Liggett, supra, p 717.

I would reverse and order a new trial.

       Neither the children nor Mrs. Julian were with the defendant at the time of the incident.

       Prom later testimony it appears the son-in-law referred to was Dallas Julian, husband of Mrs. Julian.

       The girl referred to was Brenda McCullough who was in the car beside the defendant.

       Parenthetically, I note the defendant did not deny shooting the gnn. To say “if he did shoot” is to suggest that he denied that which he elearly admitted.

       The closing jury arguments were not transcribed and were not part of the record on appeal.

       It lias been suggested, and the trial judge must have concluded, there is a logical inconsistency in denying the assault and asserting self-defense. Whether “self-defense” in an assault or any criminal case may be so cireumseribed, or whether defendants in criminal cases may plead “inconsistent claims or defenses” either because of GOB 1963, 111.9(2) which expressly provides therefor, or independently thereof, are questions whieh, in my opinion, need not be reached in order to decide this ease. Compare State v. Murphy (Mo Sup, 1967), 415 SW2d 758, where the defense was alibi and the court held defendant was, nevertheless, entitled to alternative instructions. See GOB 1963, 785: “The provisions of the rules of civil procedure shall apply to criminal cases, except as otherwise provided by rule or statute, and exeept when it clearly appears that they apply to civil actions only, or where statutes or special court rules provide a different procedure.”

       Compare People v. Giacalone (1928), 242 Mich 16, where the Court held the trial court erred in withdrawing from the jury’s consideration the defendant’s claim of self-defense.

       Compare People v. MacPherson (1949), 323 Mich 438, 452; People v. Guillett, supra; People v. Oberstaedt (1964), 372 Mich 521, 526.

       See, also, People v. Kanar (1946), 314 Mich 242, 253, where the court observed: “The rule is well settled in this State that if an erroneous instruction is given on a material matter and the error is not corrected or eured in the charge such error must be regarded as prejudicial.”


author: T. Gr. Kavanagh, J.

text:
    LEPOFSKY v. CITY OF LINCOLN PARK.
    1. Mandamus — Issuance.
    Granting to plaintiffs in mandamus of relief prayed for before defendants had an opportunity to file answer to amended complaint and without a hearing on the issues framed by amended pleadings held, error.
    2. Same — -Municipal Corporations — Licenses—Used Auto Parts Business.
    Mandamus will not issue to compel a city and its officials to issue a license to operate a used auto parts business where there is a disputed issue of fact raised by amended pleadings in the action.
    References for Points in Headnotes
    [1] 35 Am Jur, Mandamus § 373.
    [2J 34 Am Jur, Mandamus § 184,

      Appeal from Wayne; Wise (John M.), J.
    Submitted Division 1 June 9, 1967, at Detroit.
    (Docket No. 2,872.)
    Decided March 19, 1968.
    Mandamus by Fred and Bessie Lepofsky against the city of Lincoln Park to compel the issuance of a license to operate a used auto parts business. From an order granting relief, defendants appeal.
    Reversed and remanded.

      Edward Grebs, for plaintiffs on appeal.

      Robert E. Butcher, for defendants.
   T. Gr. Kavanagh, J.

This is an appeal from an order of the Wayne county circuit court granting a writ of mandamus to compel the defendant city to issue a license to the plaintiffs to conduct an auto parts business.

Plaintiffs Fred and Bessie Lepofsky, doing business as Liberty Auto Wrecking, have been licensed to operate a used auto parts business in Lincoln Park for more than 30 years. Plaintiffs Theodore and Sidney Lepofsky, according to defendants, have never had a license. All licenses under the city ordinance are issued annually and expire on each June 30. In May, 1966, an application for a used auto parts license for the year beginning July 1, 1966, was filed in the name of Liberty Auto Wrecking, and it sought a license for 2 separate premises — 1007 and 1059 Fort street. In the original complaint filed on June 29,1966, only Fred and Bessie Lepofsky were named as plaintiffs. They alleged that the city had not yet passed upon the license application and asked the court to issue a writ of mandamus compelling the city to issue the license. Defendants filed an answer wherein they admitted that final action had not been taken on the application, but they stated that the application was considered by the mayor and city council on June 27 and that the hearing thereon was adjourned until July 5 for the claimed reason that the premises violated the city fire code because certain combustibles were being stored there. Defendants further asserted that on August 1 the city council denied the application for a license for 1007 Fort street for the following reasons:

“(a) The fence surrounding the premises does not comply with the requirements of the licensing-ordinance and constitutes a public and private nuisance ;
“(b) The applicants for license are apparently not the operators thereof and have apparently leased the premises to another person or persons, who is or are unlicensed to conduct any business on the premises;
“(c) The premises are being- used for purposes— i.e. junkyard operation — not contemplated or permitted by the license previously held by the applicants or sought in the pending application or permitted by the pertinent city ordinances.”

On August 16, 1966 a hearing was held on a contempt proceeding and on defendants’ motion for summary judgment. During argument ofr counsel it appeared that the pleadings were not in order and permission was given the parties to file amended pleadings. On October 11, 1966 an order was entered amending the complaint to include Theodore and Sidney Lepof sky as party plaintiffs and granting-defendants 20 days within which to file an answer to such amended complaint; the court further ordered that plaintiffs post a $2,500 bond in accordance with the city’s license application requirements, that a building permit be issued for the construction of a new fence around 1007 Fort street, and that a license be issued to operate the used auto parts business. Thus, before the defendants had an opportunity to file an amended answer and without a hearing on the issues framed by such amended pleadings, the court granted plaintiff the relief prayed for. We hold that it was error to grant the writ of mandamus because plaintiffs’ right to issuance of the license could not be established prior to a resolution of the factual dispute raised by the amended pleadings. See Miller v. City of Detroit (1930), 250 Mich 633.

Reversed and remanded, costs to appellant.

Fitzgerald, P. J., and Levin, J., concurred.


author: Quinn, J.

text:
      In re BARNHOLT ESTATE. RUSSELL v. ANN ARBOR TRUST COMPANY.
    1. Appeal and Error — Discretion of Trial Court.
    The action of the trial court as to matters within its judicial discretion will not be disturbed unless there is clear abuse of its discretion.
    2. Estates of Decedents — Administrators—Ancillary Administration — Discretion of Court.
    Order to transmit Michigan ancillary administration assets to a domiciliary administratrix in another Stateys discretionary.
    3. Same — Ancillary Administration Assets — Distribution by Domiciliary Administrator — Discretion of Court.
    Order to transmit cash assets of ancillary administration of estate in Michigan to domiciliary administratrix in another State for distribution iu probate proceedings in that State held, not an abuse of discretion, where the record failed to establish that creditors of the domiciliary estate, administration expenses, and estate taxes for the estate were fully paid, and requiring Michigan probate court to make such determination would place an undue burden upon it.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error §§ 772-775.
    [2, 3] 31 Am Jur 2d, Executors and Administrators § 706 et seq.

    Remission of assets by ancillary administrator to domiciliary executor or administrator. 90 ALR 1043.

      Appeal from Washtenaw; Breakey (James R., Jr.), J.
    Submitted Division 2 October 3, 1967, at Lansing.
    (Docket No. 3,156.)
    Decided March 19, 1968.
    Petition in Washtenaw probate court by Walter J. Russell, receiver for Owen R. Anderson, son of deceased, for appointment of an ancillary administrator of the estate in Michigan of Dora E. Barnholt, who died a resident of Colorado, and for determination of the heirs-at-law of deceased. Ann Arbor Trust Company appointed ancillary administrator. Walter J. Russell petitioned for distribution of the distributive share of Owen R. Anderson to himself as receiver. Marjorie A. Sylvia petitioned for funds to be distributed to herself as domiciliary administratrix for distribution under Colorado law. Probate court ordered that ancillary administrator should pay the amount of the estate to domiciliary administratrix appointed in Colorado. Walter J. Russell appealed to Washtenaw circuit court.
    Affirmed.
    Walter J. Russell appeals.
    Affirmed.

      Williams & Damon (Francis L. Williams, of counsel), for Walter J. Russell.

      Douglas K. Beading, for Marjorie A. Sylvia.

      Devine <& Devine, for Owen R. Anderson.

      Thompson & Bishop, for Ann Arbor Trust Company.
   Quinn, J.

The receiver appeals from a judgment of the circuit court which authorized and directed the ancillary administrator of the estate of Dora E. Barnholt, deceased, to transmit to the domiciliary administratrix of said estate all of the residue of the ancillary administration assets, which consisted of cash. In effect, this judgment affirmed a similar order of the probate court, from which the receiver appealed to the circuit court.

At oral argument, counsel for the receiver conceded that an order to transmit Michigan ancillary administration assets to the domiciliary administratrix is a discretionary order, perhaps because such is the law. (In re Stevens’ Estate [1912], 171 Mich 486). We hold that such an order is discretionary.

“The rule is universal that the action of the trial court, as to matters within its judicial discretion will not be disturbed unless there is a clear abuse thereof.” Attorney General v. Union Guardian Trust Company (1938), 285 Mich 308, 316.

The trial court found that the record before it did not establish that creditors of the domiciliary estate, administration expenses, and estate taxes for that estate were fully paid, and the trial court held it would place an undue burden on the probate court to require it to make such determinations, which would have to be made if distribution of the ancillary assets was made other than to the domiciliary administratrix. The record supports such findings and demonstrates sound exercise of discretion rather than abuse thereof.

Affirmed, with costs to appellees.

McG-eegor, P. J., and Levin, J., concurred.