text:
    WAMSER v. N. J. WESTRA & SONS, INC.
    1. Appeal and Error — Judgment Notwithstanding Verdict — Evidence.
    Facts are taken in the light most favorable to plaintiff on review of a trial court’s order granting defendant’s motion for judgment notwithstanding the verdiet.
    2. Trial — Motion for Judgment Notwithstanding Verdict — Evidence.
    It is not within the province of a trial judge to grant a motion for judgment notwithstanding the verdiet as long as there is competent evidence on which the jury’s verdiet may rest.
    3. Negligence — Definition.
    Negligence is conduct that fails to measure up to an acceptable standard.
    4. Same — Standard of Conduct — Question for Jury.
    The standard of conduct used in determining whether or not a person is guilty of negligence is that of a reasonably prudent man acting in the same or similar circumstances, and whether or not the standard is attained is a jury question; the case may be taken from the jury only under extreme circumstances where reasonable minds could not differ upon the facts, or the inferences to be drawn therefrom.
    References for Points in Headnotes
    [1 5 Am Jur 2d, Appeal and Error § 886.
    [2: 30A Am Jur, Judgments §§ 297, 300.
    [3 38 Am Jur, Negligence § 2.
    [*_ 38 Am Jur, Negligence §§ 29, 30, 344-346.
    [5] 38 Am Jur, Negligence §§ 14, 23, 27-30, 92, 94, 116, 141,
    [6“ 38 Am Jur, Negligence §§ 58, 59, 67, 70.
    [7 38 Am Jur, Negligence §§ 344-347, 351,

      5. Same — Attachment on Angle Iron to Masonry Wall — Foreseeability- — Evidence.
    Evidence that attachment of angle iron to masonry wall in new construction had been made in a negligent manner so that it could be easily detached and was caused to fall upon plaintiff, an employee of a subcontractor, by action of one of the defendant contractor’s employees and plaintiff’s foreman as latter 2 persons were removing plywood coverings of two 3' x 12' openings beneath the angle iron held, sufficient to support verdict for plaintiff for personal injuries sustained, both as to original negligence and foreseeability that iron might be loosened by others than those who had installed it.
    6. Same — Intervening Act.
    Generally, the effect of an intervening negligent act is tested by determining whether or not it was such as might reasonably have been foreseen as a consequence of the claimed negligence of the original actor.
    7. Same — Proximate Cause — Foreseeability—Question eor Jury.
    Difference on how reasonable men would act in determining such issues as negligence, proximate cause, and foreseeability presents an issue for determination by jury.
    Appeal from Kent; Searl (Fred N.), J.
    Submitted Division 3 June 6, 1967, at Grand Rapids.
    (Docket No. 2,177.)
    Decided December 6, 1967.
    Complaint by Keith R. Wamser against N. J. Westra & Sons, Inc., a Michigan corporation, for damages for injuries sustained as a result of defendant’s negligence. Defendant’s motion for judgment non obstante veredicto granted. Plaintiff appeals.
    Reversed and remanded for entry of judgment on the jury verdict.

      Marcus, McCrosky, Libner, Beamon, Williams & Dilley, for plaintiff.

      Atiaben, Massie, Vender Weyden & Timmer, for defendant.
   Burns, J.

Plaintiff, an employee of Fenestra, Inc., was injured on a construction project at the Grand Rapids public museum when an angle iron weighing some 50 pounds fell from above and struck him. An employee of defendant, the general contractor, mounted the angle iron on the side of a building approximately 9-1/2 feet above an elevated passageway which Fenestra, Inc., as subcontractor, had agreed to enclose in a metal curtain wall. Plaintiff brought suit alleging negligence on the part of defendant and seeking to recover damages for injuries sustained as a result of defendant’s negligence.

The trial court reserved decision on defendant’s motion for directed verdict under GCR 1963, 515.2. The jury returned a verdict for plaintiff, but the trial judge granted defendant’s motion for a judgment notwithstanding the verdict. The trial judge reasoned that plaintiff failed to meet his burden of proving negligence on the part of defendant. He further reasoned that even assuming negligence hy the defendant, the plaintiff had failed to show proximate cause.

Plaintiff raises the following issues:

“1. Considering all of the evidence in the light most favorable to plaintiff, were there any proofs on the basis of which the jury could have properly found defendant guilty of negligence?
“2. Considering all of the evidence in the light most favorable to plaintiff, were there any proofs on the basis of which the jury could have properly concluded that such negligence was a proximate cause of plaintiff’s injury?”

It is well settled law that in reviewing a judgment notwithstanding the verdict the facts must be taken in the light most favorable to the party opposing the motion. Kroll v. Katz (1965), 374 Mich 364, 369, citing Tacie v. White Motor Co. (1962), 368 Mich 521, 527.

The following rendition of the facts is set out in the light most favorable to the plaintiff. On the day of the injury plaintiff’s foreman, one Klenk, instructed him to remove some sand from the base of a temporary plywood enclosure over the entrance of the elevated passageway between the old museum building and the new annex. While plaintiff was so engaged, other employees of Fenestra were attempting to remove the temporary plywood enclosure.

The deck of the elevated passageway led to 2 openings in the wall, each 3 feet wide and 12 feet high separated by a pilaster 2 feet wide. Two pieces of 4-by-8-foot, 1/4-inch plywood were nailed over each opening with masonry nails. The top piece of plywood on each opening overlapped the bottom piece and was secured to it with double-headed nails. An angle iron 1/4 inch in thickness and about 10 feet long, to be used to help support the roof of the passageway, was mounted horizontally against the 2 top pieces of plywood approximately 9-1/2 feet above the elevated passageway deck. This angle iron was fastened to the masonry wall by means of a 1/2-inch lag bolt in a 3/4-inch expansion shield. A wooden cleat was nailed under each end of the angle iron in order to prevent rotation.

Carlson, another employee of Fenestra, and Klenk removed the lower panel of plywood over one of the openings with no difficulty by manually pulling it over the heads of the masonry nails. The lower panel over the other opening was more difficult to remove. Carlson kicked the panel from the inside, and then both he and Klenk pulled on it in order to loosen it. At this point the angle iron fell and struck plaintiff and knocked Mm off the elevated deck to the ground.

The law relating to the first issue is well stated in McKinney v. Yelavich (1958), 352 Mich 687, 691, 692:

“All will agree, of course, that negligence is conduct that fails to measure up to an acceptable standard. The standard now employed by the law is that of a reasonably prudent man acting under the same or similar circumstances. Whether or not the standard has been attained is, normally, a jury question. Only under the most extreme circumstances, those, in fact, where reasonable minds could not differ upon the facts, or the inferences to be drawn therefrom, can the case be taken from the jury. If honest differences of opinion between men of average intelligence might exist, the issue should not be resolved by the court alone.”

The following question presented by the plaintiff in Kroll v. Katz, supra, p 368, was held to be the determinative test in that case and is applicable to the case at hand.

“ ‘Considering the evidence in the light most favorable to the plaintiff, is there any evidence of negligence to support the unanimous verdict of the jury?’ ”

See, also, Cole v. Barber (1958), 353 Mich 427, 430.

If any competent evidence of negligence and proximate cause can be found on this record when the facts are viewed most favorably to the plaintiff, the trial court’s judgment notwithstanding the verdict must be reversed.

We have no difficulty in finding some evidence in support of the verdict on this record. There was expert testimony that the lag bolt and shield used, when properly secured in a masonry wall, would normally hold a load of about 1,500 pounds. Several qualified witnesses testified that such a lag bolt and shield must be forcibly tapped into a masonry wall with a hammer if the hole is drilled the proper size as recommended on the shield. Defendant’s employee testified that the bolt and shield were installed by simply inserting them with his fingers. Klenk testified that the hole after the accident was about 1/8 inch larger than the shield even when it was fully expanded by screwing the lag bolt all the way into the shield. Both he and Carlson testified that the fully expanded shield could be easily slipped in and out of the hole by hand after the accident. All of these facts were testified to by competent witnesses and constitute evidence that the hole was drilled too large in the first place or, perhaps, in view of the brittle qualities of masonry, the hole was of irregular shape or drilled in an unworkmanlike manner, all of which is some evidence of negligence.

It also would have been proper for the jury to consider that defendant negligently failed to remove the plywood enclosure. If there was, in fact, an agreement, such as defendant claims, that it would remove the plywood when the subcontractor was ready, the question remains why defendant failed to do so.

There was a great deal of expert testimony that in construction work it is not unusual for iron workers to remove temporary wood structures to perform a subcontract, and that tearing down insubstantial wood structures to get on with the job is not a specialized function to be performed only by carpenters. The fact that defendant’s carpenter put up the enclosure and was familiar with how the angle iron was secured, coupled with the fact that the defendant general contractor had control of the premises, tends to establish, even apart from any express contract, defendant’s duty to remove the enclosure to permit performance by the subcontractor. Failure to do so cannot be explained away by lack of notice, when, by virtue of the presence of its employees, defendant had actual knowledge of Fenestra’s readiness to begin work. We are unable to agree that the jury verdict was without any supporting evidence of negligence.

We reach the same conclusion regarding plaintiff’s second issue; there is sufficient evidence showing that the negligence was the proximate cause of the injuries sustained in spite of the intervening force applied against the bottom plywood panel by Fenestra’s employees when they were removing it. Even assuming that the force applied by Klenk and Carlson was excessive, their conduct does not necessarily mean that the original negligence of defendant ceased to be a proximate cause.

“The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about, if
“(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or
“(b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted.” 2 Restatement, Torts, § 447, quoted with approval in Comstock v. General Motors Corp. (1959), 358 Mich 163, 179.

Several witnesses testified to the effect that under the circumstances it was not unusual for the Fenestra crew to remove the plywood as they did. Only the bottom panels had to be removed in order for Fenestra to commence performance of its subcontract. If it had been necessary to remove the top panels also, it might have seemed highly extraordinary to a reasonable man that the Fenestra crew would not first remove the angle iron by unscrewing the lag bolt. Since only the bottom panels had to be removed at that time in order for Fenestra to commence work, the jury could properly find that a reasonable man would not find the acts of the Fenestra crew highly extraordinary.

The jury could property consider that heavy construction is usually done by men who are accustomed to using forceful methods in their work and who are often working under time pressure. From this the jury could conclude that defendant should have realized, if it did not order one of its employees to remove the plywood when the Fenestra crew arrived, they might choose to pull off the lower panels themselves. If the hole had been drilled too large, and we have held that the jury could have property so found, defendant should have foreseen that the slightest disturbance could bring the angle iron down to someone’s injury.

Very often men differ on how a reasonable man would act in determining such issues as negligence, proximate cause and foreseeability. This is one of those cases. The jury is the most appropriate institution known in our legal system to answer the difficult and essentially factual question of how a reasonable man would act under the circumstances. The jury in this case reached its unanimous verdict based upon competent evidence. That verdict should have been permitted to stand.

Reversed and remanded for entry of judgment on the jury verdict, with costs to appellant.

Holbrook, P. J., and Wise, J., concurred.


source: Caselaw Access Project

author: McGregor, J.

license: Public Domain

text:
    BINBEN v. CONTINENTAL CASUALTY COMPANY.
    1. Judgment — Collateral Attack — Divorce.
    The validity of an unappealed divoree judgment may not be attached by third parties except for laeh of jurisdiction.
    2. Insurance — Divorce—Judgment—Beneficiaries.
    An insurance poliey on a divorced husband’s life becomes payable to his estate, unless otherwise ordered in divoree judgment, if there is no beneficiary designated by him (CL 1948, § 552.101).
    3. Same — Divorce—Beneficiaries—Judgment—Designation.
    Proceeds of an insurance policy on a divorced husband’s life are not payable to his estate where there is a provision in the judgment ordering irrevocable designation of his 2 children as beneficiaries, such proceeds being payable to his estate only in the absence of any provision in the judgment of divorce or his own designation respecting beneficiaries (CL 1948, § 552.101).

      i. Same — Beneficiaries Under Divorce Judgment.
    Plaintiffs, children of deceased, held, entitled to proceeds of insurance policies where divorce judgment ordered irrevocable designation by husband of his minor children as beneficiaries, despite failure of insured to execute formal change of beneficiary (CL 1948, § 552.101).
    References for Points in Headnotes
    [1] 24 Am Jur 2d, Divorce and Separation §§ 477, 478.
    [2-4] 24 Am Jur 2d, Divorce and Separation §§ 834, 932,
    Appeal from Wayne; Bohn (Theodore R.), J.
    Submitted Division 1 June 7,1967, at Detroit.
    (Docket No. 2,028.)
    Decided December 6,1967.
    Rehearing denied January 15,1968.

      Complaint by Linda Lee Binben and Sharon K. Binben, minors, by Lncy K. Binben, their guardian, against Continental Casualty Company and Continental Assurance Company, foreign corporations, for proceeds of insurance policies on the life of William W. Binben, deceased. Defendants moved to interplead Mary Lou Binben, widow of William W. Binben, as party defendant. Order of inter-pleader filed and defendant insurers discharged after payment of proceeds into court. Mary Lou Binben, individually and as administratrix of the estate of William W. Binben, was added as defendant. Judgment for plaintiffs. Defendant Mary Lou Binben, administratrix, appeals.
    Affirmed.

      Frank Selwa and Anthony J. Ssymanski, for plaintiffs.

      Joseph R. Zanglin, for defendant Mary Lou Binben, administratrix.
   McGregor, J.

Linda Lee Binben and Sharon Kay Binben, plaintiffs herein, are the minor children of William Binben and Lucy K. Binben. The father, William Binben, died on January 29, 1964. The parents were divorced by a judgment of divorce entered on May 29, 1963. Among other provisions, the following appears in the judgment of divorce:

“Insurance provision
“It is further ordered and adjudged that the defendant, William W. Binben, shall designate as beneficiaries, his two minor children, Linda Lee Binben and Sharon Kay Binben, share and share alike, irrevocably, in all insurance policies now in force on the life of said defendant. Any insurance on the lives of the children or the plaintiff herein, shall be the sole and separate property of the plaintiff herein, free and clear of any claims on the part of the defendant herein;
“It is further ordered and adjudged that the defendant, William W. Binben, shall execute and deliver unto the plaintiff, any instruments necessary to carry out the above insurance provision.”

At the time of the entry of the judgment of divorce and at the time of his death, William Binben was insured by the Continental Casualty Company and the Continental Assurance Company, defendants herein, for $3,000. His former wife, Lucy K. Binben, was designated as beneficiary on both policies. William Binben, during his lifetime, did not execute a formal change of beneficiary after the entry of such judgment of divorce to make these policies payable to his children, and at the time of his death his former wife, Lucy K. Binben, the originally designated beneficiary, remained so on the policies. She, in turn, assigned any possible interest she might have under such policies to the minor children, plaintiffs herein, under an assignment attached to the original complaint.

Mary Lou Binben, the added defendant herein, is the second wife and widow of William Binben, who now claims the proceeds of this insurance as his heir at law, individually, and as administratrix of the estate of her deceased husband.

Suit was filed in behalf of the minors against the insurance companies, who filed counterclaims of interpleader, and under a court order the proceeds of these insurance policies were paid by the insurance companies into the office of the clerk of the court.

The only question involved is whether the plaintiffs are entitled to the proceeds of these insurance policies by virtue of the provisions of the judgment of divorce, the assignment of interest by Lucy K. Binben to the plaintiffs, and by virtue of the provisions of CL 1948, § 552.101 (Stat Ann 1957 Rev § 25.131).

The position of the added defendant, the second wife of the insured, is that she, as administratrix of the estate of her deceased husband and heir at law, is entitled to the proceeds under the provisions of the same section, CL 1948, § 552.101.

The facts and the applicable law support the findings of the trial court.

The provisions of CL 1948, § 552.101 read in part as follows:

“Hereafter every decree of divorce shall determine all rights of the wife in and to the proceeds of any policy or contract of life insurance, endowment or annuity upon the life of the husband in which she was named or designated as beneficiary, or to which she became entitled by assignment or change of beneficiary during the marriage or in anticipation thereof, whether such contract or policy was heretofore or shall hereafter be written or become effective, and unless otherwise ordered in said decree such policy or contract shall thereupon become and be payable to the estate of the husband or to such named beneficiary as he shall affirmatively designate: Provided, that the company issuing such policy or contract shall be discharged of all liability thereon by payment of its proceeds in accordance with its terms, unless before such payment the company shall have written notice, by or on behalf of the insured or 1 of the heirs of the insured, or any other person having an interest in such policy or contract of a claim thereunder and the aforesaid divorce.” (Emphasis added.)

Appellant here seeks to attack the ruling of the trial court in the divorce proceedings. That is not the same as attacking the authority of the court to make such ruling. In Couyoumjian v. Anspach (1960), 360 Mich 371, it was held that the validity of an unappealed decree of divorce may not be attacked by third parties except for lack of jurisdiction.

The insurance provision of the judgment of divorce, as hereinbefore quoted, is clear. Obviously, the purpose of the insurance provision in the judgment of divorce was to provide some means of support for the minor children in the event of the death of the defendant husband.

Under the statute, unless otherwise ordered in said decree, such policy or contract shall thereupon become and be payable to the estate of the husband. The insurance provision in the decree clearly authorizes payment of the insurance benefits to the two minor children. It would appear that no other construction can be followed than the plain language of the statute in this case. It is only in the absence of any provision in the decree that the proceeds are payable to the estate.

In Minnesota Mutual Life Insurance Company v. Hendrick (1946), 316 Mich 253, 256, the Court, in referring to the identical Michigan statute, stated:

“As it was not otherwise ordered in the divorce decree, the policy became and was payable to the estate of the husband, there being no other beneficiary whom he affirmatively designated.”

Further, in McCoy v. McCoy (1947), 317 Mich 478, the Supreme Court in considering the provisions of the same statute, modified the judgment to conform with the statute, in view of the absence of any provision in the decree covering the parties’ interests in certain policies of insurance.

The added defendant, Mary Lou Binben, or Mary Lou Binben as administratrix of the estate of William W. Binben, deceased, is not entitled to the proceeds of the policy, either as a beneficiary, heir, or under the terms of the statute. The insurance provision in the judgment of divorce designated as beneficiaries the two minor children, Linda Lee Binben and Sharon K. Binben, share and share alike, irrevocably, in all insurance policies then in force on their father, the divorce defendant, and such judgment of divorce provisions may not be successfully attacked by the added defendant, as herein attempted.

We affirm the learned trial judge’s determination. A judgment may be entered in favor of the plaintiffs for the money paid by the insurance companies into the office of the county clerk. Costs to plaintiffs against the added defendant, Mary Lou Binben, and against the second added defendant, Mary Lou Binben, administratrix of the estate of William W. Binben, deceased.

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


author: Wise, J.

text:
    VRIESMAN v. ROSS.
    1. Automobiles — Transfer op Title — Statutes.
    The requirements of the Michigan vehicle eode relating to transfer of title are mandatory, and failure to comply with them negates the validity of the attempted transfer, whether by sale or gift (CLS 1961, § 257.233[d]).
    References for Points in Headnotes
    [1] 7 Am Jur 2d, Automobiles and Highway Traffic §§ 29-33, 42. Civil rights and liabilities as affected by failure to comply with statute upon sale of motor vehicle. 37 ALR 1465, s. 52 ALR 701, 63 ALR 688, 94 ALR 948.
    [2-4] 39 Am Jur, Notary Public §§ 34, 46.
    [5,6] 7 Am Jur 2d, Automobiles and Highway Traffic §§ 29, 30, 33, 36, 42.

      2. Notaries — Certificate Sealed by Notary — Presumption.
    Pacts reeited in an instrument to which a notary public affixes his seal earry a statutory presumption of truth (GL 1948, § 55.113).
    3. Same — Presumption—Rebuttal.
    Statutory presumption of truth of facts reeited in instrument to which a notary public has affixed Ms seal may be rebutted by evidence whieh is clear, positive, and credible (CL 1948, § 55.113).
    4. Same — Evidence—Rebuttal of Statutory Presumption.
    Testimony of notary publie that transferor did not sign application to transfer title of motor veMele in his presence held, sufficiently clear and positive to rebut statutory presumption of truth of recitals in application (CL 1948, § 55.113).
    5. Automobiles — Notaries—Transfer of Title.
    Notorization of application for transfer of title is essential to transfer automobile title (CLS 1961, § 257.233[d]).
    G. Same — Notaries—Transfer of Title.
    Attempted transfer of automobile title by mother to herself and minor daughter held, ineffective, where transferor failed to sign application for transfer in notary public’s presence (CLS 1961, § 257.233 [d]).
    Appeal from Ottawa; Smith. (Raymond L.), J.
    Submitted Division 3 June 7,1967, at Grand Rapids.
    (Docket No. 2,343.)
    Decided December 6, 1967.
    Complaint by John Harold Yriesman against Jacquelyn Ross for damages sustained in an automobile accident caused by defendant’s mother. Judgment for defendant. Plaintiff appeals.
    Affirmed.

      Marcus, McCroslcey, Libner, Beamon, Williams & Dilley, for plaintiff.

      Scholten é Bant, for defendant.
   Wise, J.

The circuit court judge who heard this automobile negligence case ordered a judgment of no cause of action in favor of defendant, and plaintiff appeals.

The facts reveal that on February 2, 1963, an automobile being driven by defendant’s mother, Helen Y. Ross, collided with plaintiff’s truck and semitrailer which was stopped and parked on the shoulder of plaintiff’s side of US-31 in Berrien county, Michigan. It was established that the accident occurred as a result of the negligence of the defendant’s mother. Mrs. Helen Y. Ross and two children riding with her were killed. The plaintiff suffered personal injuries and his vehicle was extensively damaged.

Subsequently the plaintiff brought suit to recover damages in the amount of $15,000 asserting the liability of the defendant daughter as co-owner, pursuant to the provisions of CLS 1961, § 257.401 (Stat Ann 1960 Rev § 9.2101) of the Michigan vehicle code.

It appears that on July 1, 1958, a certificate of title to the automobile involved was issued in the names of Wilford A. and Helen Y. Ross, parents of the defendant. Following the death of Mr. Ross, Helen Y. Ross made application for and obtained a new certificate in the joint names of herself and the defendant, making the defendant the ostensible co-owner. At the time of the application for a new certificate of title the defendant was 14 years of age and presently is still a minor. Since shortly after her mother’s death, the defendant has been under the legal guardianship of her uncle, Clarence E. Scott.

The vehicle was insured with the Wolverine Insurance Company, later called Tower Insurance Group, and Helen Y. Ross was listed as the sole named insured.

Subsequent to tbe collision, the defendant joined with the administrator of her mother’s estate in making application for a duplicate certificate of title in her own name. After receiving such title, the Tower Insurance Group issued its check in the amount of $775 to the defendant in payment of the collision loss, recognizing the defendant’s insurable interest as ostensible co-owner. The plaintiff indicated that the theory of estoppel does not apply to the instant case, in that the requisite elements are lacking.

The trial court determined that ownership of the vehicle had not vested in the defendant at the time of the collision, and hence she was not an “owner” within the meaning of the Michigan vehicle code.

On appeal the plaintiff raises two questions. The first relates to whether at the time of the collision the defendant was the legal co-owner of the vehicle. The second involves a question of whether at the time of the collision the vehicle was being operated with the express or implied consent or knowledge of the defendant. The trial court did not address itself to the latter question nor will we, since it is not essential to our decision.

In this State the statutory language is explicit as to the requisites necessary for transferring legal title of a vehicle. Therefore in answering the plaintiff’s first question we look to the pertinent provision of CLS 1956, § 257.233(d), as amended by PA 1959, No 250 (Stat Ann 1960 Rev § 9.1933[d]) to determine whether the alleged transfer was validly accomplished. It reads as follows:

“The owner shall indorse on the back of the certificate of title an assignment thereof with warranty of title in the form printed thereon with a statement of all liens or encumbrances on said vehicle, sworn to before a notary public or some other person authorised by law to take acknowledgments, and deliver the same to the purchaser or transferee at the time of the delivery to him of such vehicle, which shall show the payment or satisfaction of any mortgage or lien as shown on the original title.” (Emphasis supplied.)

The requirements of the statute are in mandatory terms, and case law has made it abundantly clear that failure to comply with the provisions negates the validity of the attempted transfer. See Waldron v. Drury’s Van Lines, Inc. (1965), 1 Mich App 601; Drettmann v. Marchand (1953), 337 Mich 1.

In the instant case the plaintiff directs our attention to numerous cases which set forth the elements of a valid inter vivos gift. We find, however, that discussion of this area is unnecessary in that the statute involved determines the initial validity of the transfer of ownership to vehicle, whether by sale or gift. Taylor v. Burdick (1948), 320 Mich 25.

It is also necessary in reaching a decision that we consider CL 1948, § 55.113 (Stat Ann 1961 Rev § 5.1047), which gives presumptive validity to the truth of facts within an instrument to which a notary public affixes his seal. The presumption, however, is rebuttable, calling for clear, positive and credible evidence in opposition. Garrigan v. LaSalle Coca-Cola Bottling Co. (1961), 362 Mich 262.

At trial Mr. Nolan, the notary public whose signature appeared on the application for the new certificate of title, testified in unequivocal language that the transferor, Helen Y. Ross, did not sign the application in his presence. It is also interesting to note, although it is not essential to our decision, that the defendant’s unequivocal testimony reveals she had no knowledge of the transaction. It is evident, therefore, that the attempted transfer did not meet the requirement of the statute that the certificate of application be “sworn to before a notary public.” We conclude, therefore, that the testimony was sufficiently clear and positive to rebut the presumption afforded by the statute.

In reaching our decision we adopt the language of Dodson v. Imperial Motors, Inc. (CA 6, 1961), 295 F2d 609, which ease we find controlling. There, as here, the cause grew out of the asserted invalidity of a notary public’s certification. In. discussing the aforementioned provision of the' Michigan vehicle code, the court states at page 613:

“The plaintiffs, relying on such statute, must establish strict compliance with the transfer statute to gain the advantage of the strict liability sought to be imposed on Imperial. The language of the transfer statute is mandatory that an owner transferor ‘shall indorse on the back of the certificate of title an assignment, * * * sworn to before a notary public.’ We are not at liberty to sever from this statute an integral part thereof and hold it a nonessential.”

Based upon the prior considerations and the issues raised we conclude that at the time of the collision the defendant was not the owner of the vehicle, and concur in the decision of the trial court.

Affirmed. Costs awarded to appellee.

Holbrook, P. J., and Burns, J., concurred.

       CLS 1961, § 257.37 (Stat Ann 1960 Rev § 9.1837).

       See, currently, CLS 1961, § 257.233(d) as amended by PA 1904, No 248 (Stat Ann 1965 Cum Supp § 9.1933 [d]).


author: Fitzgerald, P. J.

text:
    PEOPLE v. REECE.
    1. Criminal Law — Armed Robbery — Lesser Included Offenses— Jury Instructions — Prejudicial Emphasis.
    Overemphasis of instructions to jury with respect to armed robbery, and insufficient or confusing instruction given on lesser included offenses, held, to be error requiring reversal of conviction of armed robbery and remand for a new trial (OLS 1961, § 750.529).
    2. Same — Instructions to Jury — Duty op Trial Judse.
    Duty of trial judge, without any request from counsel, is to see to it that a ease goes to the jury in a dear and intelligent manner, so that jurors may have a clear and correct understanding of what it is they are to deeide, and the judge should state to the jury fully the law applicable to the facts, especially in a criminal ease (CL 1948, § 768.29).
    References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 813; 53 Am Jur, Trial § 802.
    [2] 53 Am Jur, Trial § 511.
    Appeal from Recorder’s Court of Detroit; Brennan (Vincent J.), J.
    Submitted Division 1 June 8, 1967, at Detroit.
    (Docket No. 1,044.)
    Decided December 6,1967.
    Rehearing denied January 15, 1968.
    Leave to appeal denied April 3, 1968.
    See 380 Mich 763.
    Herbert D. Reece was convicted of robbery armed. Defendant appeals.
    Reversed, and remanded for new trial.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people.

      John F. Mayer, for defendant.
   Fitzgerald, P. J.

Defendant was charged with robbery armed, pled not guilty, and at trial was represented by counsel. Evidence was adduced disclosing that defendant approached complainant in a dark park, seized him, and demanded money, which was given at knife point. The complainant was able to escape and summoned aid from the police, accompanying them to aid in the search. The defendant was apprehended in the immediate vicinity of the incident with the same denomination of coins as taken from complainant, and a knife in his pocket. Defense counsel attempted to show that defendant was not the one involved, that his knife was open in his pocket for self-protection and, in general, his client was not guilty.

After lengthy instructions from the judge on the elements of armed robbery and 4 lesser included offenses, which were given at the completion of argument and then again in response to a juror’s question, the jury returned a verdict of guilty of armed robbery.

Defendant raises one unique argument on appeal. He contends the instructions individually were correct, hut read as a whole were prejudicial. He argues that too much emphasis was placed on the instruction on the elements of armed robbery and not enough time devoted to the elements of the lesser included offenses. Further, he claims the fact that a juror had to ask for additional clarification on a point indicates the original instructions were confusing.

The statute, CL 1948, § 768.29 (Stat Ann 1954 Rev § 28.1052), requires, “The court shall instruct the jury as to the law applicable to the case.” The duty of the trial judge is further defined in People v. Murray (1888), 72 Mich 10 at 16:

“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.”

A review of the record persuades us that there is merit to defendant’s contention that armed robbery was overemphasized and insufficient or confusing instruction given on lesser included offenses. While we do not find the affirmative exclusion of lesser offenses as found in People v. Jones (1935), 273 Mich 430, we are constrained to hold that the instructions were such that a fair consideration of lesser included offenses was not likely. The overpowering effect of the instructions on robbery armed negated instructions on lesser included offenses.

Judgment of conviction reversed and the cause remanded for a new trial.

Kavanagh and Levin, JJ., concurred.

       OLS 1961, § 750.529 (Stat Ann 1965 Cum Supp § 28.797).


author: Quinn, J.

text:
    PEOPLE v. BAKER.
    1. Criminal Law — Advice of Counsel.
    Trial judge’s predication of defendant’s right to counsel on a plea of not guilty held, error since the condition is not one found in the eourt rule, nor one qualifying defendant’s constitutional right to counsel before plea (Court Rule No 35A [1945]).
    Reference foe Points in Headnote
    21 Am Jur 2d, Criminal Law §§ 309, 312, 313.
    Appeal from Kent; Searl (Fred N.), J.
    Submitted Division 3 June 8,1967, at Lansing.
    (Docket No. 1,408.)
    Decided December 6, 1967.
    Carl Baker was convicted of statutory rape. Defendant appeals.
    Reversed and remanded for a new trial.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James K. Miller, Prosecuting Attorney, and Richard D. Wells, Assistant Prosecuting Attorney, for the people.

      Larry Middletown, for defendant.
   Quinn, J.

April 3, 1959, without counsel, defendant pleaded guilty to statutory rape of his daughter. April 24, 1959, he was sentenced to prison for life and with a recommendation that parole not be considered until defendant was incapable of having sexual relations. In July, 1960, defendant filed a motion for leave to file a delayed motion for new trial. By written opinion dated October 19, 1960, and by order pursuant thereto dated November 29, 1960, this motion was denied. Defendant’s application for leave to appeal from this order was denied by the Supreme Court June 28, 1961. September 9, 1965, defendant filed a motion to withdraw his plea of guilty and for leave to file a delayed motion for new trial. By written opinion dated September 13, 1965, and by order pursuant thereto dated September 20, 1965, this motion was denied, and defendant appeals on leave granted.

Defendant was arrested March 29, 1959 without a warrant by Michigan State police. April 1, 1959, a State police officer signed a formal complaint before a municipal judge in Grand Rapids charging defendant with the statutory rape of Louise Joanne Baker December 1, 1957, and with indecent liberties. A warrant charging the same offenses issued the same day; defendant waived examination and was arraigned in circuit court April 3, 1959, on an information charging both offenses. .

One of several grounds asserted by defendant for appellate relief is that he did not have the benefit of advice or assistance of counsel before being required to plead to the information. In response to this assertion, plaintiff contends defendant was fully advised of his right to counsel and chose not to exercise that right. The transcript of arraignment does not support plaintiff in this position. The pertinent portion of such transcript is as follows:

“The Court: We will arraign him on that first count first. Mr. Baker, you are charged here with a felony which means it is a serious offense for which you can be sent to prison if you plead guilty or are found guilty. You have a right to plead guilty or not guilty as you choose,—
“Respondent : (Interposing) Yes.
“The Court: Just a minute. If you plead not guilty, you have a right to a trial either by the jury or the judge as you choose and you have a right to be represented by a lawyer if you wish. If you are unable to employ one for financial reasons, the court will, if you ask it, appoint one for you, do you understand your constitutional rights ?
“Respondent: Yes, sir.
“The Court: Are you ready to plead at this time?
“The Respondent: Yes, sir.
“The Court: Do you understand the charge against you?
“Respondent: Yes, sir.
“The Court: How do you plead?
“Respondent: Guilty.”

Court Rule No 35A (1915), then in effect, was the same as GCR 1963, 785.3, which provides in part as follows:

“.3 Arraignment and sentencing. In every prosecution wherein the accused is charged with a felony, the trial court shall conform to the following practice :
“(1) Arraignment. If the accused is not represented by counsel upon arraignment, before he is required to plead, the court shall advise the accused that he is entitled to a trial by jury and to have counsel, and that in case he is financially unable to provide counsel the court will, if accused so requests, appoint counsel for him. If the accused states he will procure counsel or requests that counsel be appointed, a reasonable time thereafter shall be allowed for counsel to consult with, the accused before his plea shall be taken.”

Here the trial judge predicated defendant’s right to counsel on a plea of not guilty, a condition not found in the rule nor one qualifying his constitutional right to counsel before plea. This conclusion obviates discussion of the other questions raised on appeal.

Reversed and remanded for new trial.

Lesinski, C. J., and Gtllis, J., concurred.

       0LS 1961, § 750.520 (Stat Ann 1954 Rev § 28.788).

       CLS 1961, § 750.336 (Stat Aim 1954 Eev § 28.568).

      CLS 1961, § 767.42 (Stat Aim 1965 Cum Supp § 28.982).

         Defendant is called respondent in the transcript. CL 1948, § 612.1 (Stat Ann § 27.653), and, now, GCR 1963, 201.1 and 785.1, require that parties to an action he designated as plaintiff or defendant. — Reporter.


author: Holbrook, P. J.

text:
    PEOPLE v. RAUB.
    1. Constitutional Law — Police Power — Due Process.
    Tlie provision of the Constitution declaring that property shall not be taken without due process of law is inapplicable, where the exercise of police power is applicable (US Const, Am 14; Const 1963, art 1, § 17).
    2. Same — Police Power — Reoulation op Business.
    Any business or business practice may be regulated if such regulation is necessary to the public welfare, health, morals, and safety.
    References for Points in Headnotes
    [1] 16 Am Jur 2d, Constitutional Law § 296.
    [2] 16 Am Jur 2d, Constitutional Law §§ 296, 313.
    [3, 4] 16 Am Jur 2d, Constitutional Law § 325.
    Validity of statute or ordinance fixing closing hours for certain kinds of business. 55 ALR 242.
    [5-7] 16 Am Jur 2d, Constitutional Law §§ 297, 485-489.
    [8] 16 Am Jur 2d, Constitutional Law §§ 137, 143, 297.
    [9] 16 Am Jur 2d, Constitutional Law §§ 297, 325.
    [10] 5 Am Jur 2d, Appeal and Error §§ 760, 901.
    [11] 5 Am Jur 2d, Appeal and Error § 545.

      3. Same — Police Power — Regulation of Business — Hours of Operation.
    Hours of business may be regulated as an exercise of the poliee power where there is a necessity for regulation and a reasonable relation to publie health, welfare, peace, and safety.
    4. Same — Police Power — Car Wash — Hours of Operation.
    Ordinance forbidding coin-operated self-service ear washes to be kept open and operated between hours of 10 p.m. and 7 a.m. held, to be a reasonable exercise of the poliee power where the record showed that it was adopted after publie hearings at which there was testimony of numerous complaints from nearby residents of litter, excessive noise, beer drinking, and other disturbances at defendant’s ear wash during late evening and early morning hours, and the ordinance was adopted to alleviate these difficulties, and serves as well to thwart potential rowdiness, gang groupings, and like obnoxious activity (Detroit Ordinance 119-G, § 39-1-90.3).
    5. Same — Equal Protection — Police Laws — Classification.
    The equal protection clause admits of the exercise of a wide scope of discretion in the classification of police laws, and avoids what is done only when it is without any reasonable basis and, therefore, purely arbitrary (US Const, Am 14, §1).
    6. Same — Equal Protection — Mathematical Nicety of Classification.
    A classification in poliee laws having some reasonable basis does not offend the equal protection elause merely because it is not made with mathematical nicety or because in practice it results in some inequality (US Const, Am 14, § 1).
    7. Same — Presumptions.
    Any state of facts that can reasonably be conceived will be assumed in order to sustain a classification in police laws under the equal protection clause (US Const, Am 14, § 1).
    8. Same — Classification—Burden of Proof.
    One who assails the classification in a police law has the burden of showing that it does not rest upon any reasonable basis but is essentially arbitrary (US Const, Am 14, § 1).
    9. Same — Equal Protection of Law — Car Wash — Hours of Operation.
    Ordinance forbidding coin-operated self-serviee ear washes or places where 2 or more cars may be washed simultaneously to be kept open and operated between hours of 10 p.m. and 7 a.m., while permitting such operation for 1-staII non-eoinoperated, non-self-service car washes held, not invalid as denying equal protection of law where the classification appears reasonable because the nature of ear washes permitted to operate does not lend itself to the evils arising from the prohibited operation (Detroit Ordinance 119-Gr, § 39-1-90.3).
    10. Appeal and Error — Constitutional Question — Argument.
    Assertion, on appeal, of point that ordinance regulating operation of car washes is constitutionally invalid because it improperly delegates police duties to operators of car washes in requiring them to keep premises free of debris and litter, prevent excessive noise and rowdiness, and maintain peace, order, and safety on the premises, is not discussed in opinion when the point is not supported by eases, authorities, or compelling reasons.
    11. Same — Questions Réviewable — Car Wash — Ordinance—Charters.
    Assertion by defendant that ordinance regulating operation of ear washes is invalid because not adopted in accordance with city charter is not considered, where raised for the first time in the Court of Appeals (Detroit City Charter, title 3, ch 1, §§ 17, 18; Detroit Ordinance No 119-Gr, §§ 39-1-90.1, 39-1-90.2, 39-1-90.3).
    Appeal from Recorder’s Court of Detroit; Maher (Richard M.), J.
    Submitted Division 1 June 8, 1967, at Grand Rapids.
    (Docket No. 2,283.)
    Decided December 6, 1967.
    Rodney Raub was found guilty of keeping open and operating a coin-operated, self-service car wash between the hours of 10 p. m. and 7 a. m. in violation of an ordinance of the city of Detroit. Defendant appeals.
    Affirmed.

      Robert Reese, Corporation Counsel, and Robert D. McGlear, Assistant Corporation Counsel, for the people.

      Donald G. Schiff, for the defendant.
   Holbrook, P. J.

Defendant, Rodney Raub, was found guilty in recorder’s court of the city of Detroit, traffic and ordinance division, of keeping open and operating a coin-operated, self-service car wash between the hours of 10 p. m. and 7 a. m. in violation of ordinance No 119-G, section 39-1-90.3 of the city of Detroit. 2Defendant has appealed to this Court challenging the validity and constitutionality of the ordinance on several grounds as follows:

(1) The ordinance is an unconstitutional deprivation of property without due process of law (an unreasonable exercise of police power).

(2) The ordinance denies equal protection of law.

(3) The ordinance is void because of unlawful delegation of enforcement duties.

(4) The ordinance was not enacted in compliance with the charter of the city of Detroit.

1. Exercise or Police Power.

It is fundamental that “where the exercise of police power is applicable, the provision of the Constitution declaring that property shall not he taken without due process of law is inapplicable.” Wyant v. Director of Agriculture (1954), 340 Mich 602, 608. Also, see People v. Damm (1914), 183 Mich 554. At trial, defense counsel failed to urge or even state any particular ground or theory of unconstitutionality ; however, the trial court in rendering its decision stated as follows:

“It seems to me we have a question about a reasonable exercise of police power, and it would seem to me that the common council being the legislative body has a duty to conduct hearings and to enact laws which are for the betterment of the public health and welfare and morals of the public. And after the hearings, they have come up Avith an ordinance that restricts the operation of these businesses, probably due to several reasons, one of Avhich Avould he the fact that there are no persons whatsoever on duty at all times to see that noise and other things don’t go on throughout the middle of the night. I think that in vieAv of the fact they Avere public hearings and in vieAAi of the fact, I believe, that there is here a reasonable exercise of police power, that I’ll find the defendant guilty.”

There are essentially 3 points, to he taken in progression, necessary to a determination of the validity and constitutionality of the instant ordinance as an exercise of the police power: First, whether a coin-operated, self-service car Avash business is subject to regulation; second, whether the hours during which the business might operate may he fixed by a municipal ordinance; and third, whether there is a reasonable relationship between the remedy and the public purposes necessitating its enactment.

People v. Victor (1939), 287 Mich 506, 512 states unequivocally that “it is clear that any business or business practice may be regulated if such regulation is necessary to the public welfare, health, morals and safety.” (Emphasis supplied.) The record below indicates that the ordinance was necessary for several reasons: nearby residents had made numerous complaints of litter, excessive noise, beer drinking, and other disturbances during the late evening and early morning hours at defendant’s car wash; these complaints were testified to at several hearings held prior to the enactment of the ordinance; a complaint seeking a preliminary and permanent injunction barring the operation of the car wash during the late evening and early morning hours had been filed in Wayne circuit court on the grounds that the business constituted a nuisance.

The nature of defendant’s business is of relatively recent development. However, we find it to be a proper subject for regulation.

“The ‘police power’ is said to be a power or organization of a system of regulations tending to the health, order, convenience, and comfort of the people and to the prevention and punishment of injuries and offenses to the public. * * * It has for its object the improvement of social and economic conditions affecting the community at large and collectively with a view to bring about ‘the greatest good of the greatest number.’ Courts have consistently and wisely declined to set any fixed limitations upon subjects calling for the exercise of this power. It is elastic and is exercised from time to time as varying social conditions demand correction.” People v. Brazee (1914), 183 Mich 259, 262.

The hours of business may be regulated pursuant to the exercise of police power where there is a necessity therefore and a legitimate and reasonable relation to public health, welfare, peace, and safety. See, 16A, CJS, Constitutional Law, § 671.

The ordinance has a legitimate and reasonable relationship between the remedy adopted and the public purposes necessitating its enactment. It requires defendant to close the car wash after 10 p.m. thereby eliminating excessive noises and undesirable disturbances and a fortiori preserving to nearby residents peace and tranquillity during late evening and early morning hours with reference to public health and welfare. The ordinance also thwarts potential rowdiness, “gang” groupings, and like activity thereby sustaining public safety. We find the ordinance in question to fall within the lawful and constitutional exercise of the police power and therefore conclude that it does not constitute a deprivation of property contrary to the constitutional guarantee of due process of law.

2. Equal Protection op Law.

Defendant contends that the ordinance is invalid as a denial of equal protection of law because it applies only to coin-operated car washes or to places where 2 or more cars may be washed simultaneously.

The rule to be applied in solving classification questions was set forth in Gauthier v. Campbell, Wyant & Cannon Foundry Company (1960), 360 Mich 510, 514, and fully restated in Tracer v. Bushre (1966), 3 Mich App 494, 499, as follows:

“The standards of classification are:
“ ‘1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of diseretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.’ ”

The classification fixed by the ordinance in question does not appear to be arbitrary; and it appears to have some reasonable basis, i.e., a coin-operated or self-service car wash lacks supervision in its operation and therefore requires regulation.' Conversely, a single stall car washing facility, not coin-operated or of a self-service nature, such as those found in gasoline stations, does not lend itself to the “evils” heretofore ascribed to a coin-operated, self-service car wash and therefore does not require regulation.

3. Delegation of Enforcement Duties.

Defendant asserts the ordinance to be void because it unlawfully delegates police duties (see section 39-1-90.1 of the ordinance, supra) to the owner or operator of a wash rack or motor vehicle laundry. He intimates, but fails to state specifically or present to this Court, the existence of other ordinances of the city of Detroit regulating “every matter” contained in the particular section of the ordinance delegating such duties.

No cases, authorities or compelling reasons are given this Court as supporting this assertion of defendant — apparently there are none. An appellate court cannot effectually review matters inadequately presented and argued to it. “The appellant himself must first adequately prime the pump; only then does the appellate well begin to flow.” Mitcham v. City of Detroit (1959), 355 Mich 182, 203.

4. Ordinance Enactment.

Defendant questions the validity of the ordinance by asserting that it was not enacted in accordance with the charter of the city of Detroit. The argument propounded is that the ordinance fails to state a public emergency on its face and therefore could not take effect until the 30th day after its approval. This matter was not raised in the lower court but is raised in this Court for the first time. Therefore, it will not be considered. People v. Wright (1967), 6 Mich App 495; People v. Fore (1966), 5 Mich App 132; People v. Willis (1965), 1 Mich App 428.

Affirmed.

Burns and McGregor, JJ., concurred.

       “An ordinance * * * to provide for the regulation of wash racks and motor vehicle laundries and to regulate the hours of operation. * * *
      “Section 1. * * •
      “See. 39-1-90.1. It shall be the duty of the owner or operator of any wash rack or motor vehicle laundry to:
      “(A) Keep the premises free of debris and litter;
      “(B) Prevent excessive noise and rowdiness;
      “(C) Maintain peace, order and safety on the premises.
      “Sec. 39-1-90.2. Por the purposes of this ordinance a wash rack or motor vehicle laundry shall include all operations on the premises:
      “(A) Where two or more motor vehicles may be washed simultaneously; or
      “(B) Where facilities are provided for coin-operated or self-service washing of motor vehicles.
      “See. 39-1-90.3. Wash rack or motor vehicle laundries (as defined herein) shall not be open or operate between the hours of 10:00 p.m. and 7:00 a.m.
      “See. 2. This ordinance is declared neeessary for the preservation of the publie peace, health and safety and is hereby given immediate effect.”

         Walter v. Wayne Circuit Judge (1966), 2 Mich App 145.

       ITS Const, Am 14, § 1; Const 1963, art 1, § 17.

       ITS Const, Am 14, § 1.

       See People v. Hall (1939), 290 Mich 15; McBride v. Jacob (1918), 201 Mich 525; and Fitch v. Board of Auditors of Claims Against Manitou County (1903), 133 Mich 178.

       Charter of the city of Detroit, title 3, ehap 1, §§17 and 18.


text:
    PEOPLE v. DODSON.
    1. Sodomy — Nonjury Trial — Prejudice oe Court.
    Contention of defendant, convicted of sodomy, that the trial court, sitting as a trier of faet pursuant to waiver of jury, was unable to set aside his natural feeling of revulsion and therefore unable to give the defendant a fair and impartial trial, held, not supported by record, where there are no objections of record by the defense to the trial judge, aeting as trier of the facts, and no such claimed prejudice of the trial court is shown on a careful reading of the record (CLS 1961, § 750.158).
    2. Criminal Law — Witnesses—Nonjury Trial — Questions by Court.
    Trial court, sitting as trier of facts in a nonjury criminal trial, determines the credibility of witnesses, and has not only the right but the duty to ask material questions of witnesses, so as to elarify the matters before it.
    3. Sodomy — Evidence.
    Evidence presented in prosecution for sodomy held, sufficient to permit the trial eourt, sitting without a jury, to find defendant guilty beyond a reasonable doubt (CLS 1961, § 750.158).
    4. Criminal Law — Appeal and Error — Saving Questions for Review — Sodomy.
    The defense in a criminal trial has the duty to make timely objections for the trial record, and the Court of Appeals will not consider objections not raised before appeal unless there is a showing that justice miscarried, in a nonjury trial for sodomy, where the record is barren of objections to any questions asked by the trial court as being improper (CLS 1961, § 750.158).

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error §§ 839, 840; 53 Am Jur, Trial § 1147.
    [2] 53 Am Jur, Trial §§ 1122, 1125.
    [3] 48 Am Jur, Sodomy § 5.
    [4] 5 Am Jur 2d, Appeal and Error §§ 545, 548.
    [5] 5 Am Jur 2d, Appeal and Error §§ 778, 867,
    [6] 5 Am Jur 2d, Appeal and Error § 778,

      5. Appeal and Error — Criminal Law — Miscarriage op Justice.
    Conviction of a crime will not be reversed on appeal unless there was such error committed at the trial as would deprive the defendant of substantial rights so as to result in a miscarriage of justice.
    6. Criminal Law- — Pair Trial.
    Defendant convicted of sodomy held, not deprived of his constitutional right to a fair trial where there is nothing in the record that would move the court to find that the defendant’s rights were violated or that indicates the defendant was improperly or unjustly convicted (CLS 1961, § 750.158).
    Appeal from Recorder’s Court of Detroit; Scallen (John P.), J.
    Submitted Division 1 June 8, 1967, at Grand Rapids.
    (Docket No. 1,993.)
    Decided December 6, 1967.
    Oliver Dodson, Jr., was convicted of sodomy. Defendant appeals.
    Affirmed.

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

      ■ George A. Kelly, for defendant.
   McGregor, J.

A 16-year-old defendant was found guilty of “sodomy” under CLS 1961, § 750.158 (Stat Ann 1962 Rev § 28.355), after a waiver was obtained from the juvenile court, referring the defendant to the recorder’s court to be tried as an adult. Defendant Hied a waiyer of trial by jury and was tried and convicted by the court. Defendant contends that certain actions, rulings, and remarks of the trial court were so prejudicial as to deprive bim of his constitutional right to a fair trial, and that the prosecuting attorney was permitted to go beyond legal bounds in his examination of witnesses.

The complaining witness testified that he was 60 years of age and was standing by a drug store at about 10:30 to 11 p.m. Two boys approached him, one the defendant, and asked him, “Will you get us some whiskey?”, to which the complaining witness replied, “You’re too young.” Defendant then said, “Well, my mother says she wants it,” and thereupon, the complaining witness purchased the liquor and was invited by the defendant to “come on, go home with me.” His testimony shows that he, the complaining witness, had a couple of drinks at the defendant’s home; he testified that the defendant invited him down to the basement of his home on the pretext of showing him where he was going to make a recreation room, and that they went out' of the house, around the yard, through a door into the basement; that the defendant put a knife on him and told him to pull off his coat and lie down; that the defendant pulled the complaining witness’s pants down and “used him like a woman.” Subsequently, the witness came out of the basement and called the police, the police picked him up and took him to the hospital. The witness further testified that there was blood on his underclothes. There was some corroborating testimony by the arresting police officers and, likewise, by the attending physician who had, the same evening, examined the complaining witness at the hospital, and found some rectal trauma.

There was substantial testimony by the defend- ■ ant, his family, and friends, who denied that the defendant went to the basement with the complaining witness. Among them was his mother, whose testimony in part was that on the day in question, a number of ladies were in her home, and 7 or 8 different boys, friends of the defendant, that she met the complaining witness when he walked up and asked for a drink of whiskey, that the complaining witness sat down and drank with her and her friends. She further testified that “he had several drinks with me” and “got high,” that the defendant was in the house when the complaining witness left. The mother further testified that there were three ways to go to the basement, from “the back, inside, and out in front.” Other witnesses substantiated the defendant’s claim of not going to the basement.

During the trial, the complaining witness was recalled by the defendant’s counsel; after numerous attempts were made by defense counsel to repeat the previous day’s testimony, the trial judge said, “You had all that testimony yesterday; have you got anything that you left out, yes, something you want to call particular attention to, but you can’t go over the testimony again; we would never get through with a lawsuit. If any doubts have been raised in your own mind by your witnesses as to his testimony that’s a question of fact for me to decide, not for you to run over it again.” Defendant’s attorney replied, “Well, Your Honor, if I am precluded from asking any questions about —,” and the court answered, “You’re not precluded from anything.”

The defendant contends that the court was unable to set aside his natural feeling of revulsion, which made it impossible to give the defendant a fair and impartial trial. There are no objections of record by the defense to the trial judge acting as such. Defendant gives no citations of applicable law sustaining such claims of error. A careful reading of the record does not show such claimed prejudice hy the trial court. Questions were asked hy the trial court for an apparent clarification of the material facts, hut no timely objections were made by the defendant that such questions were improper. The trial court, pursuant to a jury waiver, sitting as trier of the facts, determines the credibility of witnesses, and such trial court not only has the right but the duty to ask material questions of witnesses, so as to clarify the matters before it. There was ample, competent evidence, if believed, for the trial court to find the defendant guilty beyond a reasonable doubt. People v. Geddes (1942), 301 Mich 258. A conviction of a crime will not be reversed unless there was such error committed at the trial as would deprive the defendant of substantial rights so as to result in a miscarriage of justice. The defendant fails to show any timely, objection on the record to any such claimed error and, likewise, fails to show reversible error in his brief. People v. Piotrowski (1966), 4 Mich App 510. The record is barren of objections to any questions asked hy the trial court as being improper. It is the duty of the defense to make timely objections for the trial record. Unless there is a showing that justice miscarried, this Court will not consider such objections when not raised until appeal. People v. Elliott (1948), 322 Mich 313; People v. Willis (1965), 1 Mich App 428, 430.

Appellant has not shown that questions put by either the court or the prosecuting attorney exceeded the scope of the testimony or matters brought out under direct examination, or that such questions were not material. The prosecuting attorney did not commit reversible error in his questions or his conduct. Defendant was not deprived of his constitutional right to a fair trial. The record fails to show that defendant’s rights were violated or that he was improperly or unjustly convicted.

Affirmed.

Holbrook, P. J., and Burns, J., concurred.


text:
    PEOPLE v. BRASHAW.
    1. Criminal Law- — Court Rules — Consequence of Plea of Guilty.
    After a plea of guilty and before sentence the court shall inform the aeeused of the nature of the accusation and the consequence of his plea (GCR 1963, 785.3[2]).
    2. Same — Constitutional Law — Waiver of Trial by Pleading Guilty.
    The natural or necessary result of the exercise of the right to plead guilty to charge of erime is to waive the constitutional right to trial and all its incidents (US Const, Am 6; Mich Const 1963, art 1, § 20; GCR 1963, 785.3).
    3. Same — Court Rules — Consequence of Plea of Guilty.
    Claim of defendant, who pled guilty to a charge of breaking and entering, that. his conviction is defective because the trial judge failed to inform him of the consequence of his plea, held, without merit, where defendant stated that he understood he would have to serve time in a jail or prison if he were convicted and that defense counsel explained he might be sentenced to up to 10 years in prison (CL 1948, § 750.110, as amended by PA 1964, No 133; GCR 1963, 785.3).
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 486, 487.
    [2] ' 21 Am Jur 2d, Criminal Law § 495.
    [3] 21 Am Jur 2d, Criminal Law §§ 486-489.
    [4] 21 Am Tur 2d, Criminal Law § 533.

      4. Same — Sentence.
    A sentence imposed by tbe trial judge within the maximum provided by statute is not subject to supervisory control by the Court of Appeals.
    Appeal from Livingston; Carland (Michael), J.
    Submitted Division 2 June 9, 1967, at Lansing.
    (Docket No. 1,618.)
    Decided December 6, 1967.
    Stephen Brashaw was convicted of breaking and entering. Defendant appeals.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Charles B. Galesman, Prosecuting Attorney, for the people.

      E. Reed Fletcher, for defendant.
   McGregor, J.

Defendant was arraigned on November 1, 1965, on a charge of breaking and entering. The court appointed counsel for the defendant. The arraignment was then adjourned until November 8, 1965, at which time the defendant pleaded guilty to the charge and was sentenced to 4 to 10. years, on December 6, 1965.

Defendant brings this appeal on the ground that the trial judge failed to comply with GCR 1963, 785.3(2): that is, that the trial judge failed to inform the appellant of the consequence of his plea; more specifically, did not inform the appellant of the maximum sentence for breaking and entering. Counsel for the appellant in his brief further says:

“The sole objection of the defendant in this cause is as to the severity of the sentence.”

The following colloquy from the arraignment is relevant:

“The Court: You understand, sir, that if you are convicted of this offense, that you might have to serve time in one of the jails or prisons of this State ?
“The Defendant: Yes, sir.”

Subsequently, at the continuation of the arraignment, on November 8, 1965, the following colloquy occurred:

“The Court: You told the Court you understood the consequences if you were convicted of this offense ?
“The Defendant: Yes, sir.”

Counsel for defendant, in his brief, says: “That in the course of conferences with the defendant, counsel had explained that he might be sentenced up to 10 years but that * * * .” While this statement of defendant’s counsel does not control our decision, it holsters the defendant’s statement to the court that he understood the consequences of his conviction.

It is clear that the trial judge did inform the defendant that he might he sent to prison if convicted. This Court, in People v. Charles A. White (1967), 8 Mich App 220, addressing itself to the meaning of “consequence of his plea” said p 224:

“The phrase ‘consequence of his plea’ hears no relation to advice by the trial judge to a defendant with respect to punishment. Any person charged with a crime has a constitutional right to trial, US Const, Am 6; Mich Const 1908, art 2, § 19; Mich Const 1963, art 1, § 20; he also has a right to plead guilty. Attorney General v. Montgomery (1936). 275 Mich 504, 529; CL 1948, § 763.2 (Stat Ann 1954 Bev § 28,855). Consequence is a natural or necessary result, Webster’s Third New International Dictionary (1964), p 482. The natural or necessary result of the exercise of the right to plead guilty is to waive the constitutional right to trial and all the incidents thereof. Such is the sense and true meaning of Court Rule No 35A (1945), and GCR 1963, 785.3.”

The second issue raised, vis., the severity of the sentence, is resolved by People v. Doran (1967), 6 Mich App 86, 88:

“The sentence imposed by the trial judge was within the maximum provided by the statute and this Court does not have supervisory control over the punishment.” People v. Pate (1965), 2 Mich App 66.

Affirmed.

Quinn, P. J., and Gillis, J., concurred.

       OL 1948, § 750.110, as amended by PA 1964, No 133 (Stat Anu 1965 Cum jlupp § 28.305).


author: PIolbrook, J.

text:
    LEWIS v. POEL.
    1. Fraud — Evidence.
    Proving of fraud requires clear, convincing, and satisfactory proofs.
    2. Same — -Preponderance op Evidence.
    Fraud must be affirmatively established by a preponderance of the evidence.
    References for Points in Headnotes
    [1-3] 24 Am Jur, Fraud and Deceit §§ 278-280.
    [4-6] 24 Am Jur, Fraud and Deceit §§ 278, 284.
    [7] 27 Am Jur 2d, Equity §§ 152, 154.
    [8] 24 Am Jur, Fraud and Deceit § 207.

      3. Same — Proof.
    Fraud is not to be presumed but more is required than mere weight or preponderance of evidence to establish fraud; it is essential that the evidence be clear, unequivocal, convincing, cogent, and leave the mind well satisfied the allegations of fraud are true.
    4. Same — Evidence—Exchange of Property — Fiduciaries.
    Evidence presented in action against those alleged to be standing in the position of the deceased fiduciary of estate for fraud on a benefieiary of the estate in arranging transfer of hotel property belonging to the estate for less than its true value, consisting of (1) an appraisal made more than 10 years before the action for fraud was instituted, showing the hotel building to be worth then $47,500, (2) an agreement between the fiduciary and his client, another beneficiary of the estate, made for the purpose of settling the accounting of the parties between themselves, setting the value at $75,000, and (3) a memorandum made by the fiduciary in discussing some of the estate matters with the same client, showing that building had a value of $30,000, held, not to show fraud in the valuation, where there was no independent appraisal or independent testimony of the value of the building at any time.
    5. Same — Evidence—Exchange of Property.
    Proofs that property exchange transaction whieh occurred in the course of the administration of an estate, in whieh the proposed transaction was approved by the probate court after a hearing, a report by the guardian ad litem of a minor beneficiary of the estate, and the taking of extensive testimony, after whieh the estate was closed with the consent of the attorney guardian for the minor beneficiary, held, not to establish fraud in an action by an assignee of the minor benefieiary against those alleged to be standing in the position of the deceased fiduciary for fraud in arranging the exchange.
    C. Same — Proofs—Contingent Fee Agreement.
    Claim of fraud by assignee of minor benefieiary of an estate in action against those alleged to be standing in the position of the deceased fiduciary of the estate, grounded on contingent fee agreement between law firm of which fiduciary was a member and another beneficiary of the estate held,. not to establish that any fraud was committed by the fiduciary against the minor beneficiary who was not a party to the contingent fee agreement, in case where the contingent fee -agreement was known to the guardian of the minor before the estate was dosed, as shown by the fact that the guardian filed objections to the 'final accounting setting forth the contingent fee agreement.
    7. Equity — Laches—Lapse op Time — Intervening Circumstances.
    Laches is an affirmative defense whieh depends not on mere lapse of time but principally on the requisite of intervening circumstances whieh would render 'inequitable any grant of relief to the dilatory plaintiff.
    8. Fraud — Laches—Fiduciaries—Death.
    Aetion for fraud, brought by assignee of 1 beneficiary of an estate against those alleged to be standing in the position of the deceased fiduciary almost 8 years after the dosing of several connected estates and after the discharge of the fiduciary, in whieh not only the fiduciary is deceased but also 2 other persons who had knowledge of some of the circumstances of the ease, held, to be barred by laches.
    Appeal from Kent; Hoffius (Stuart), J.
    Submitted Division 3 April 4, 1967, at Grand Rapids.
    (Docket No. 2,169.)
    Decided December 7, 1967.
    Rehearing denied January 30, 1968.
    Leave to appeal denied April 18, 1968.
    See 380 Mich 766.
    Bill of complaint by Alphonse Lewis, Jr., assignee of Patricia Ettress, against Frederick W. Poel, Jr., Margaret M. Poel and Rosalind Bolt Larson for an accounting and other equitable relief. Judgment for defendants. Plaintiff appeals.
    Af- . firmed.

      Alphonse Lewis, Jr., for plaintiff.

      Frederick W. Poel, Jr., for defendants.
   PIolbrook, J.

This matter concerns an action, grounded in fraud and violation of fiduciary relationship, brought by plaintiff against defendants for an accounting and other specified relief as to the distribution of 3 estates. From a judgment for defendants, plaintiff appeals. Prom a multitude of facts, the following appear to be relevant:*

Stanley L. Barnett, Sr., died intestate on March 21, 1947, leaving a widow, Bessie Barnett, and a son, Stanley Barnett, Jr. On June 27, 1948, Bessie Barnett died and on November 22, 1948, Stanley Barnett, Jr., also died. Tbe estates of Stanley L. Barnett, Sr., and Bessie Barnett had not been completely probated at the time of Stanley Barnett, Jr.’s, death. Plaintiff herein, Alphonse Lewis, Jr., at one time was the administrator of all 3 estates but was removed as snch; Menso R. Bolt was appointed successor administrator of said estates in January of 1949.

Stanley Barnett, Jr., left a 13-year-old daughter, Patricia Barnett. Thelma Barnett claimed to be the common-law wife of Stanley Barnett, Jr., and shortly after his death she retained the law firm of Menso R. Bolt and Frederick W. Poel to establish her alleged common-law marriage and to protect her rights. A contingent fee agreement was entered into between the law firm and Thelma Barnett. About this same time (at least it would so appear), the last will and testament of Stanley Barnett, Jr., was discovered and duly admitted to probate. The will provided that Thelma Barnett was to receive one-half of the estate and the remaining one-half was to go to Louise Coleman (the former wife of Stanley Barnett, Jr.) as trustee for Patricia Barnett.

As administrator, Mr. Bolt took over active management of the 3 businesses. He was able to pay off all of the debts ; and to pay Patricia Barnett and Thelma Barnett between $7,000 and $10,000 each during the period of administration.

The Kent county probate court approved an accounting which reflected a percentage payment for the management of the 3 businesses in accord with a claimed agreement. The annual accounts were filed and approved during the years of administration. The final account was filed on May 13, 1954, and approved on June 10, 1954; however, it was later amended and approved as amended on October 18, 1954. Tbe order assigning residue was executed on June 10, 1954, assigning an undivided one-balf of all real and personal property to Tbelma Barnett and an undivided one-half of all real and personal property to Patricia Barnett.

On closing the Barnett estates tbe administrator, Mr. Bolt, was discharged on December 8, 1954. He died in September of tbe following year, bis estate being closed in December, 1957.

Louise Coleman bad been appointed guardian and trustee of Patricia Barnett shortly after tbe death of Stanley Barnett, Jr., and was represented by an attorney throughout tbe probating of tbe estates; at first by Thomas Ward, now deceased, and subsequently by Arnold Levandoski, also now deceased.

Louise Coleman married Jesse Baldwin. On August 1, 1952, as guardian of Patricia Barnett she filed a petition stating that she bad received an offer from Jesse Baldwin to purchase tbe bar business.

An exchange of property between Tbelma Barnett and Patricia Barnett was contemplated whereby Patricia Barnett would be able to sell outright the bar business to Jesse Baldwin. To this end tbe petition requested court authority to sell tbe bar business to Jesse Baldwin, and court approval allowing tbe various attorney, fiduciary and management fees. In carrying out tbe contemplated transaction, J. Robert Smolensk!, an attorney, was appointed guardian ad litem for Patricia Barnett. He made a thorough investigation of tbe proposed exchange of properties between Tbelma Barnett and Patricia Barnett and filed a report recommending that tbe transaction be consummated, since it was in tbe best interest of tbe minor ward; and further, that a proposed compromise agreement as to the various fees was fair and equitable. A bearing took place in the probate court as to whether the transaction would be in the best interests of the minor ward. Based upon the testimony taken at this hearing, the report of the guardian ad litem, and the petition of the general guardian and trustee, the probate court approved the transaction; viz.,: Patricia Barnett’s guardian, on her behalf, transferred her interest in the Barnett hotel property and the Seldon avenue property to Thelma Barnett and the latter transferred her interest in the Lafayette avenue property and the bar business to the former. Thereafter, Patricia Barnett’s guardian sold the bar business to Jesse Baldwin.

Because most of the cash earnings of the businesses had been distributed during the years of administration to Patricia Barnett and Thelma Barnett, there was insufficient cash to pay the various attorney, administrator, and management fees as allowed by the probate court. As compromised by the parties and as allowed by the probate court, the then unpaid fees came to $13,000 of which Patricia Barnett was to pay one-half and Thelma Barnett one-half. The administrator, Mr. Bolt, agreed to accept $6,500 from Patricia Barnett at the rate of $100 per month. Thelma Barnett agreed to pay the remaining $6,500 plus sums due under her contingent fee agreement on a monthly basis. In carrying out this agreement, she gave Mr. Bolt and Mr. Poel a mortgage dated October 1, 1952, on the Barnett hotel property to secure payment.

Payments on the mortgage were made until 1958. In 1959, with foreclosure pending, Thelma Barnett, represented by Mr. Lewis, Jr., brought an action to set aside the 1952 mortgage. The Kent county circuit court made certain adjustments regarding the indebtedness of Thelma Barnett to Mr. Poel and Mrs. Larson, the widow of Mr. Bolt, and refused to set aside the mortgage, saying: ' “The court has not found that there was any fraud on the part of the law firm of Bolt & Poel.” Shortly thereafter, Thelma Barnett quitclaimed her interest in the Barnett hotel property to Mr. Poel.

In 1961, Mr. Poel and Mrs. Larson sold the Barnett hotel property to Mr. Lewis, Jr., Yvette H. Pittman, and Nellie M. Baldwin under a land contract. Later, the sellers instituted summary proceedings to obtain possession before the Kent county circuit court commissioner. The land contract purchasers appealed to the circuit court, which granted summary judgment for plaintiffs. That suit came to this Court and resulted in the decision of Larson v. Pittman (1966), 3 Mich App 348.

The present action arises out of an assignment of rights, claims, et cetera, dated March 6, 1962, .from Patricia Ettress, formerly Patricia Barnett, to Alphonse Lewis, Jr., plaintiff herein. The action was begun on June 1, 1962. Plaintiff’s complaint was met by a motion to dismiss, which was granted. An appeal to the Supreme Court from this dismissal resulted in the decision of Lewis v. Poel (1965), 376 Mich 167. Therein the Supreme Court referred the matter back to the trial court stating at pp 169, 170:

“We do not decide whether, under current court rules, a properly prepared, duly supported, and legally unmet motion for summary judgment should be granted as against this bill. As against defendants’ said motion to dismiss, plaintiff was entitled to a fair hearing of the merits; also of the affirmative defenses as pleaded.”

At trial, plaintiff alleged fraud in that (1) Bolt and Poel had a secret agreement or agreements with Thelma Barnett as to the transfer of assets and payment of additional fees, and (2) Patricia Barnett, plaintiff’s assignor, was injured by reason of this alleged fraud. Briefly, plaintiff’s theory is that the concealment of the contingent fee agreement between Bolt and Poel and Thelma Barnett until the lawsuit of the latter against the former in 1960, together with certain papers giving the assets of the estate various higher valuations than the valuation stated in the final account and the transfer of estate assets to Thelma Barnett, injured plaintiff’s assignor.

The trial court, after a fair hearing on the merits, entered a judgment of no cause of action against plaintiff. Two reasons for the judgment were set forth in the trial court’s opinion: plaintiff was guilty of laches and plaintiff failed to meet the burden of proof. Appealing from this judgment plaintiff raises several lengthy questions on appeal; we condense and summarize these questions as follows: (1) Whether the defense of laches is available to defendants; and (2) whether the defendants are guilty of fraud by reason of payments received under the contingent fee agreement with Thelma Barnett and the transfer of assets to Thelma Barnett.

Fraud, while easily claimed, is not easily proven. Mattery v. Van Hoeven (1952), 332 Mich 561. The proving of fraud requires clear, convincing, and satisfactory proofs — it must be affirmatively established by a preponderance of the evidence. Gardner v. Gardner (1945), 311 Mich 615; Dieterle v. Pearll (1945), 312 Mich 134; Harvey v. Lewis (1959), 357 Mich 305. Fraud is not to be presumed and something more is required than mere weight or preponderance of evidence, to establish it; it is essential that evidence be clear, unequivocal, convincing, cogent, and leave the mind well satisfied that the allegations are true. Nicholson v. Scott (ED Mich 1943), 50 F Supp 209, 212.

In disposing of the instant case, the trial judge in a thorough and well-worded opinion stated as follows:

“The testimony further indicates that the plaintiff is relying upon, I would say, two principal theories of his case, one of these being that there was testimony that an appraisal was made, known as the Fuller appraisal which has been received in evidence here as exhibit No. 11, the appraisal being made on February 22, 1952, indicating that the building [Barnett hotel building] here involved was worth the sum of $47,500.
“There is further testimony here that at some time, I believe it is in 1949, that Mr. Poel and Mrs. Barnett signed an agreement on June 11, 1949, copy of which has been received in evidence as exhibit No. 18, that the building at 58-60 Ionia has a value of $75,000, this agreement to be used for the purpose of settling the accounting of the parties hereto.
“It is further the claim of the plaintiff therefore, based upon these two documents, that the building was of higher value than is represented in the inventories and also there is the claim made that a memorandum which has been received in evidence here as exhibit No. 4, which was apparently used by Mr. Poel in discussing some of these matters with his client, Thelma Barnett, indicated that the building had a value of $30,000. There has been, however, no separate' and independent testimony im this case as to the value of the building at any given date or at the present date.
“The plaintiff relies then exclusively upon the documents which I have spoken of here, namely, the appraisal, exhibit No. 11, the alleged agreement which has been received as exhibit No. 18, and then finally a document which was used by Mr. Poel and Mrs. Barnett as exhibit No. 4. There has been no independent appraisal as of that date, there has been no independent testimony of the value of the building.
“I think it should further be pointed out that the Stanley Barnett, Jr., estate was not closed and the accounts were not allowed until some time in -1954, many months after the building apparently was transferred in 1952.. The result of this is that the court has no independent evidence to avail itself of at this time as to the true value of the building-on the date of the transfer which apparently was some time in 1952, by reason of the fact that in the guardianship estate the report of the guardian ad litem is dated August — is subsequent to the hearing-on August 15, 1952, and the licenses to sell and the conveyances are made immediately subsequent thereto.
“It should be pointed out, however, that all of the estates were closed with the full consent of the guardian for the minor here involved. At all times the guardian had counsel, first having Mr. Lewis, second having Mr. Thomas Ward, third having Mr. Arnold Levandoski. It is further apparent that the contingent fee agreement was known to the guardian by reason of the fact that she has filed three separate and distinct objections setting forth' the contingent fee agreement.
“It should further be pointed out that there has been no showing in this case of any damage to plaintiff herself [i.e., plaintiff’s assignor]. There has been no testimony that the transfer of the assets which apparently was inquired into in a much broader way than one might have suspected by the report of the guardian ad litem and the taking of extensive testimony indicates there was substantial evidence in probate court. There is, further, no independent testimony to show that the exchange which was consummated in 1952 was unfair, inequitable, or unjust at that time. All that there is shown is that there were some appraisals or some figures listed of different amounts for the value of this particular property than those that are set forth in the estates themselves.
“It should be pointed out that in the Patricia Barnett guardianship, that even after all of the statements made about the value of this particular property being worth $21,000, and that the liquor license was worth $21,000, that there was on August 13, 1954 [later corrected to 1952], an inventory filed with the court which indicated that the liquor business was subject to a contract of sale to Jesse Baldwin, approximate balance $17,000, which was apparently filed with the court before or at least dated before the report of the guardian ad litem. * *
“I come next to the fact that I have had no testimony from the assignor herself.. The assignor has not made any appearance in court to show what her knowledge of the situation was. She was born on August 28, 1935, and attained her majority then on August 28, 1956. These estates were all closed at that particular time. She attained her majority then a little less than six years before this suit is brought claiming fraud. We are handicapped in this case by the fact that three of the parties are now dead or three of the people who have knowledge of some of these circumstances are now dead. Mr. Menso B. Bolt is deceased, Mr. Arnold Levandoski is deceased, Mr. Thomas Ward is deceased.
“We have then a suit against Mr. Poel who is the attorney representing the fiduciary in these three estates and the widow of the fiduciary. *• * * Mr. Bolt’s estate was assigned and closed on February 24, 1958.
“I do not see and I am unable to understand how the widow and the beneficiary of this estate can be held liable for any alleged wrong by Mr. Bolt. There has been no other showing about this except the offering of the probate file in Mr. Bolt’s estate. Mrs. Larson, his widow, has been here in the courtroom but she has not testified and neither has there been a showing of any assignment to her of any of these interests. There has been no showing of any other way in which she is liable. * * *
“There are many cases which say that one must look at the circumstances under which the alleged fraud arose. Counsel claims that he [i.e., his assignor] is damaged by the fact that there was a contingent fee arrangement between Bolt and Poel and Thelma Barnett. I am unable to see how this could have damaged # * * plaintiff’s assignor in any way. Whether Mrs. Barnett paid the firm of Bolt and Poel $100 in addition to the fees set forth in the probate court or $1,000 or $10,000 does not have anything to do with the alleged claim of fraud here.
“I am unable to see and I do not feel that the plaintiff has carried the burden in proving a fraud which has damaged this plaintiff [i.e., his assignor] in any respect. The plaintiff [i.e., plaintiff’s assignor] received an undivided one-half of all of the assets, that is, the bar business, the hotel business, the restaurant business, the building itself and the two pieces of personal property. The plaintiff’s assignor had competent and experienced counsel, had a competent and experienced guardian ad liiem appointed for her to inquire into these matters at the time of the exchange of the properties in 1952. The plaintiff’s assignor had a guardian who> was her own mother, who has testified here in court, who appeared to be a woman of intelligence and with some ability. She had competent counsel throughout, and it seems to me that to permit this plaintiff to come into court some eight years after the closing of all of these estates and after the discharge of the fiduciary and sue one of the attorneys and the widow of one of the fiduciaries for acts which at this time are not conclusive as to fraud would be most unfair and unjust. There has been no showing that the exchange between the parties, that is, between the plaintiff’s assignor and Thelma Barnett, was in any way inequitable. There was no reliance placed upon the alleged valuation of $47,-500 by any of the parties. There was no reliance placed upon the statement of 1949 that the building was then worth $75,000, the $30,000 was in exhibit 4 only a negotiation between Mr. Poel and Thelma Barnett, and does not show anything about true value at that particular time, but only that that was the figure which was used in the determination of the fees between the parties.
“I am, therefore, of opinion that the plaintiff has failed to carry the burden of proof that there was fraud here which has brought damage to this particular plaintiff’s assignor. Accordingly, a judgment of no cause of action may be entered.”

We are in accord with the findings of fact as determined by the trial judge in his opinion.

In dealing with the other issue raised by appellant, that of laches, we find that in the case of Lewis v. Poel, supra, the Michigan Supreme Court defined laches as (p 169):

“an affirmative defense which depends not on mere lapse of time but principally on the requisite of intervening circumstances which would render inequitable any grant of relief to the dilatory plaintiff (Kelley v. Hoogerhyde, 314 Mich 37; Plasger v. Leonard, 316 Mich 174).”

Judge Iloffius, in his opinion stated:

“We are handicapped in this case by the fact that three of the parties are now dead or three of the people who have knowledge of some of these circumstances are now dead. Mr. Menso R. Bolt is deceased, Mr. Arnold Levandoski is deceased, Mr. Thomas "Ward is deceased. * * *
“In this case the plaintiff has alleged fraud. The fiduciary against whom he alleges the fraud is deceased. There are substantial authorities that the court has the right to inquire into probate matters which are closed in the court, if there can be shown fraud. The usual statute of limitations on fraud or wrongs to property or person is three years. This suit is brought almost eight years after the closing of all of the estates and after the fiduciary has been discharged.
“The court further is aware that if there has been a concealment of any fraudulent claims that the statute is extended for an additional period of two years. There has been no testimony here in open court that is any different than that testimony which was brought out in open court in January of 1960. This suit is filed June 1, 1962. * * *
“It seems to me that to permit this plaintiff to come into court some eight years after the closing; of all of these estates and after the discharge of the fiduciary and sue one of the attorneys and the widow of one of the fiduciaries for acts which at this time are not conclusive as to fraud would be most unfair and unjust.”

This finding with which we agree meets and satisfies the test set forth in Lewis v. Poel, supra, and we conclude that plaintiff’s cause is barred by laches.

Affirmed. Costs to appellees.

Burns, P. J., and R. M. Ryan, J., concurred.

       To aid in understanding the facts as presented, the people and property involved are as follows:

        People involved.

      (a) Stanley L. Barnett, Sr.: Died intestate on March 21, 1947. Owner and operator of the Barnett cocktail bar, restaurant, and hotel. Joint owner of the Barnett hotel property. Husband of Bessie Barnett and father of Stanley Barnett, Jr.
      (b) Bessie Barnett: Died intestate on June 27, 1948. Joint owner of the Barnett hotel property. Widow of Stanley L. Barnett, Sr. and mother of Stanley Barnett, Jr.
      (e) Stanley Barnett, Jr.: Died testate on November 22, 1948. Sole heir of Stanley Barnett, Sr., and Bessie Barnett. Father of Patricia Barnett by Louise Barnett. Common-law husband of Thelma Barnett.
      (d) Louise Barnett: Former wife of Stanley Barnett, Jr., and mother of Patricia Barnett. Later Louise Coleman and now Louise Baldwin. Guardian and trustee of Patricia Barnett.
      (e) Jesse Baldwin: Husband of Louise Barnett (also Coleman and now Baldwin).
      (f) Patricia Barnett: Daughter of Stanley Barnett, Jr., and Louise Barnett. Benefieiary under her father’s will of one-half of his estate. Married Bell, and subsequently married Ettress.
      (g) Thelma Barnett: Common-law wife'of Stanley Barnett, Jr. Beneficiary under Stanley Barnett’s will of one-half of his estate.
      (h) Menso R. Bolt: Attorney at law. Died on September 3, 1955. Successor administrator of the 3 estates. Husband of Rosalind Bolt (now Larson), a defendant herein.
      (i) Rosalind Bolt (now Larson) : Widow of Menso R. Bolt and a defendant herein.
      (j) Frederick W. Poel: Attorney and former law partner of the successor administrator, Menso R. Bolt. A defendant herein.
      (k) Margaret M. Poel: Wife of Frederick W. Poel and a defendant heroin.
      (l) Thomas Ward: Attorney at law. Died in 1951. Attorney for Louise Coleman, formerly Barnett.
      (m) Arnold Levandoski: Attorney at law. Died on December 24, 1961. Successor attorney for Louise Baldwin, formerly Coleman.
      (n) J. Robert Smolenski: Attorney at law. Guardian ad litem for Patricia Barnett.
      (o) Alphonse Lewis, Jr.: Attorney at law. Former administrator of the 3 estates. Purchaser of the Barnett hotel property by land contract. Plaintiff herein as assignee of Patricia Barnett.

        Property involved.

      (a) The Barnett hotel property, including hotel, restaurant, and coektail bar businesses.
      (b) Property on Seldon avenue, Grand Rapids, Michigan.
      (e) Property on Lafayette avenue, Grand Rapids, Michigan.

       The assignment reads as follows:
      “Know All Men by These Presents that I, Patricia Ettress, for and in consideration of the sum of $1 and other valuable considerations, hereinbefore paid by Alphonse Lewis, Jr., the receipt of which is hereby acknowledged, do hereby transfer, eonvey, set over and assign to said Alphonse Lewis, Jr., all my right, title, claim, interest or causes of action of any kind or nature against Frederick W. Poel, Bosalind Bolt Larson, the estate, heirs and assigns of Menso B. Bolt, the estate, heirs or assigns and law firm of Arnold Levandoski, and do hereby constitute said Alphonse Lewis, Jr. my attorney and agent in fact but at his own cost and expense to enforce and effectuate the full enjoyment of said rights.”

       By reason of CL 1948, § 704.39 (Stat Ann 1962 Bev § 27.3178 [290]) it would appear that fraudulent eoneealment on the part of defendants was the only avenue open to plaintiff in maintaining his action.