*1 1968] 149 Pеople v. Scott. Dissenting Opinion by Kavanagh, T. M. beyond dispute quoted “It is clear that the rule 785.3(1)] [GCR something 1963, means more than given regarding certain advice be some rather rights fundamental of an accused, but that he need given opportunity not be rights.” to invoke those For given the above reasons reasons Parshay, supra, Justice I would reverse Souris and remand for a trial. LINES, TRANSAMERICAN INC., FREIGHT v. QUIMBY. Opinion of the Court. Compensation Third-Party —(cid:127) — 1. Workmen’s Tort-Feasor Em- ployer’s Subrogation Right. Amendment to the workmen’s act which abolished the election of provided remedies formerly pos- and made sible for injured who was both to receive com- pensation payments party causing injury and sue the third his provided also reimbursement to the out of recovery by employee (CLS 1961, 413.15). § 2. Statutes —Construction—“Shall”. give Courts mandatory should to the ordinary word “shall” its accepted meaning, construing when statute, unless to do lеgislative so would frustrate the intent. [ST [8] [10-12] [14] [15] [13] 2] 5] 6^ 3’ 50 Am 1, 58 Am 4] 5 Am Jur 41 Am Am20 Am50 54 Am Am54 Am58 58 Am Workmen’s Am Am 58 Am Workmen’s Jur, Jur, Pleading Jur Jur Jur Jur, Jur, Jur, Jur, Jur, Jur, Workmen’s 2d, Appeal References 2d, Equity 2d, 2d, Jur, Statutes Statutes Workmen’s Trusts Trusts Equity Costs § §§ §§ §§ Compensation and Error §§ § 218. §§ §§ 218. for Points 223, 224, 358, 15, Compensation 340-343. 10, 87, 88, 3, Compensation 16. 57. Compensation 363. § 238. 967. § in Headnotes 366. §§ § 109. 366. 60, 62, § 366. 66. 3. Same —Construction. legislative in its enactment must Sonstrue a The 'Supreme.Court provision may be construed entirety, not one if result effect this can of no manner as to render another *2 avoided. Damages— Compensation Third-Party 4. Workmen’s Action — — ' op Employer. Subrogation provides compensation for a of act which workmen’s Section- third-party injured employee against a third-party by action provides that injury and also his tort-feasor who has caused injury or resulting personal damages any recovery for re- expenses recovery, shall first death, after deduction of compensation insurance employer workmen’s imburse the or its held, employer compensation insurer give its carrier to the made between the right subrogation a to of a out settlement judg- third-party injured employee tort-feasor before and the ment, though employer not intervened even or its insurer had defendant’s, against,the third-party and action tort-feasor in statute, provided by the stat- not its own action as had started against the employer had at time of ute of limitations run the any settlement, agreement provided the that and settlement employer of the settlement claims were not included in (CLS ,1961, 413.15). § op Judgment Summary Judgment Fact. 5. — —Issue plaintiff employer Granting summary judgment of of in favor compensation for workmen’s claim- against attorney defendant attorney against his ant, by employer in claimant and action paid claimant as workmen’s amounts for reimbursement of ae- proceeds of settlement of claimant’s compensation out of tort-feasor, where com- ., third-party was error tion alleged promise that would hold and secure a defendants plaint might judgment third-party recovered tort- any that be joint employer benefit of and defendants and feasor rights employer judg- until the total of and defendants determined, promise nego- that no ment could be settlement completed knowledge and of would be without consent tiations rights employer employer and without the defend- any having determined, ants to settlement first been by promise kept would defendants that further negotiations, progress of settlement where defend- advised agreements by were ants their denied there answer fact any kind,-because pleadings disclosed that an issue of anything by not in the existed, the issue was resolved parties (CLS 1961, agreed by made statement facts §413.15). 151' Lines Prevailing Party in Pull. Costs —Neither 6. injured against its em- еmployer’s action are allowed No costs attorney workmen’s to recover ployee and his made, proceeds of a settlement paid from the claimant benefits third-party judgment, before tort-feasor by claimant with (CLS 1961, 413.15). prevails full where neither § Opinion. Separate Black, Chancery Appeal and Cases —Record. Error —
7. chancery loiver court at be so tried that when- should Suits finally dispose Supreme may appealed, Court the issue pleadings. raised Equity Jury. — right equitable equity controversies dealt with have by jury. methods is as the trial as sacred 9. Same —Common Law. prevail equity Buies where there is a shall between conflict equity the rules and the rules the common law with ref- erence to the same matter. op Employee Compensation *3 Workmen’s —Election 10. —Remedies op Employer’s Subrogation Right. Remedies — compensation designed Amendment to workmen’s act was to employee by injured eliminate choice the irreversible between compensation remedies act and under workmen’s remedies against provide third-party and to reimbursement tort-feasors employer, compensation on account workmen’s benefits of for paid, recovery by party (CLS employee out third of nn 1961, §413.15). Employer Any. op 11. Same —Reimbursement Its Insurer — compensation Adjective provision any, used in workmen’s of damages recovery against party the third “any act for * * * employer or its workmen’s reimburse the shall first carrier,” compensation and denotes is all-inclusive insurance (CL 1948, every kind”, “dll”, ail” and “each one § of “of 1952, 155). 413.15, by BA as amended No Subrogation Employer’s Compromise and Settlement — 12. Same — ' : Right. negotiating attorney a injured employee and his Actions of against third-party employee’s tort- claims settlement оf settle, employer to when to intention without notice of feasor gave dealing required notice, to a rise constructive fair attorney by bene- employee so obtained trust for of funds 149. employer’s right reimbursement, to and absence ex- fit of of press agreement is no to declaration such a construc- defense of (CLS 1961, 413.15). tive trust § Equity 13. Trust —Promise. —Constructive all, A constructive trust is not a trust at but a remedial device by equity property acquired used when has been in such cir- legal good may cumstances that the holder not in title of interest, making conscience retain the and the a beneficial promise by required the constructive trustee is neither nor relevant to the establishment the trust. Compensation Employer’s Workmen’s — Reimbursement —At- torney —Constructive Trust. Attorney compensation claimant, participated workmen’s who for against third-party in settlement action in such tоrt-feasor way proceeds as to become a constructive trustee employer’s compensa- the settlement reimbursement payments claimant, tion to should be held liable to account for proceeds hearing payment proper to determine to him after expenses recovery (CL 1948, 413.15, as amended PA § 155). No
Dissenting Opinion. O’Hara, Compensation Employer’s Right 15. Workmen’s — to Reimburse- op Against Party. ment —Notice Action Third compensation allowing Provision in amendment to workmen’s act bring third-party to action tort-feasor after receiving designed workmen’s was benefits provide separate recovery by employee, and re- fund for quirement employer employee begins notice to when action third-party designed to was cut em- tort-feasor off ployer’s right recovery against out reimbursement join (CL 1948, 413.15, in action § if failed 155). as amended PA No Appeal from Court of Appeals, Division 3, Burns, J., P. Fitzgerald and Watts, JJ., reversing Ottawa, Smith. (Raymond L.), J. Submitted November 7, *4 (Calendar No. 19, Docket No. De- 51,655.) cided September 25,1968.
ment of a plaintiff. claim. for appeal. Defendants Eeversed Court Appeals. appeals Supreme Plaintiff Court. entry Eeversed and remanded for ing of order conform- opinion. to the
Bergstrom, Slyhhouse (Richard é Shaw VanM. plaintiff. counsel), Orden, of n Bant, é Scholten defendants. Quimby’s J. Defendant claim Kelly,
third-party judgment. tort-feasor was settled before agreement provided any The settlement claims plaintiff-employer were not included in the set- tlement. had
Plaintiff not intervened in defendant’s action third-party nor had it tоrt-feasor started provided by its own action as ute of limitations had run stat- statute,
against plaintiff at the time of settlement. moneys
Plaintiff action to commenced recover the plaintiff paid had under the workmen’s defendant prior law to defendant’s settlement third-party joined with the tort-feasor and defend- Quimby’s attorney, George ant McCargar, L. Jr., as a defendant.
Defendants’ answer denied “that is en- any judgment against titled to these defendants or money either of them in sum of whatsoever.” granted plaintiff’s The trial court motion for summary judgment against both defendants. *5 381
154 Mich op Opinion the Court. 180) (5 App Appeals '(cid:127)The Court of by holding that the trial court reversed to and stated: “is not entitled be reimbursed” liability personal attorney’s question the of ... “The client to his recovered turning amounts the over in employer reimbursing not con- need the without does light which decision of the above in sidered right employer recognize to the set- of thе not tlement employee case.” in this its made question presented for determination calls § expressed 1961, 413- in legislative as CLS intent part pertinent 17.189), § (Stat Ann 1960Eev .15 paragraphs being follows: the first pay- compensation injury which “Where under circumstances was caused .act this able under creating a person liability legal than other in some employ person the em- same or natural respect pay ployer damages the ac- thereof, to taking compensation ceptance or the benefits compensation payments proceedings not shall enforce to injured such remedies, but act as election repre- dependents personal ^employee or their his or liability may proceed enforce the also sentative damages party in accordance with such injured provisions section. If the em- this represеntative dependents personal ployee or or his year after such action within does not commence personal injury, then the em- the occurrence ployer within compensation may, or its insurance carrier period of time for the commencement liability prescribed enforce statute, actions person person. in the of such other name of days before the Not less than commencement by any party party section, suit under this n notify, by registered shall mail at their last known compensation (cid:127)address, commission, workmen’s injured employee, or death, in the event of his dependents, personal representative his known or known his kin, his next of the work- Lines Cotjrt.; op TtíE Any carrier. insurance a men’s ‘ join said suit' shall have in interest judgment, entry either. the .em- “Prior carrier or insurance ployer his may their claims representative settle persоnal or his as their may appear and execute re- interest shall n *6 therefor. . leases by employee the release settlement “Such by employeror shall to action not be bar proceed compensation carrier insurance to.- its party any for interest or claim said third n might . .. have. injured employee or his event the “In the de: pendents personal representative their shall settle or proceeding injury or for or commence death, claim thereon party payment, third before recovery compensation, com-’ or workmen’s such proceedings not act as an elec-' shall mencement tion of bé'applied any moneys recovered shall so remedies provided. as herein liability third of a enforce the . “In an action to any plaintiff may party, the whiph recover amount personal dependents repfe-' employee or or his action to would entitled sentative be recover recovery against Any for in tort. injuries damages 'personal resulting or déath: n expenses recovery, only, deducting shall after employer its com reimburse the or workmen’s first pensation any paid carrier for amounts insurance compensation payable or under the act workmen’s recovery, and the date balance shall forthwith paid per-, dependents be to the or his representative sonal and shall treated an ad be as payment by employer any vance the compensation on account of benefits. payment future “Expenses recovery shall be the reasonable ex- penditures, including attorney fees, incurred in ef- fecting recovery. Attorney fees, unless other- agreed upon, among wise torneys shall divided at- for the as directed the court. expenses recovery mentioned shall b§ above Opinion op the Court. parties apportioned between tbe the court recovery.” appear said
their at the time of interests Construing court its the trial statute, this opinions stated: compensation as a law, taken workmen’s “The recognize would seem
whole, participate in carrier insurance third-party any recovery by employee from a * ** tort-feasor. any expressly provides ‘re- “This statute covery’ ‘personal injuries only’ shall or death employer ‘first reimburse or workmen’s com- its pensation paid any insurance carrier for amounts payable’ expenses or covery. Any deduction re- after damage settlement for items of personal injuries expressly would be covered by this act. this And would be true whether par- not the or its insurance carrier were ties to the suit. employer may
“The fact that have secured third-party releases from the tort-feasor does not *7 any way position in respect employer alter the in rights to his under the act. Defendants have omitted this claim from their brief and court considers it abandoned.” In contrast quote to the trial court, we the follow- ing opinion from Appeals: of the Court of employer requires “The contends that the act reim- ‘any against recovery bursement to be made from party damages resulting the third per- for * * * injuries.’ sonal interpretation given “The to the statute appellee nullify in the instant case would the sec- providing separate tion settlements and releases * * * employer or or claims interests. Freight “Transamerican Lines, Inc., is not entitled paid to agree- be reimbursed for the anof out sums Lines v. Opinion of Court. employee’s its in- a settlement ment which was against which third dividuаl claims specifically This Transamerican. claims of excludes not bar an action release does settlement employer carrier to recover its insurance compensation paid workmen’s amounts act under the party.” from the compensation legisla- From the first workmen’s recognized Michigan the em- tion this Court has ployer-insurer’s aas form to reimbursement statutory subrogation. part §3, 15, Prior to the amendment to 1952,when was en- concerned, which here with this Court is provided that: the statute acted, compensation pay- injury for is which “Where under circumstances this act was caused under able liability person creating legal some other than thereof, employer pay respect damages in the the law proceed option employee may either at at his
against person damages, or recover employer under this compensation may not and if act, but both, paid enforce for under this act company that of the insurance his benefit or for carrying insur- risk, such the commissioner may liability as the other be, case ance, person.” Michigan Employers Casualty
This Court in Co. (1922), 363, 365, v. Doucette considered quoted statutory language, defining the above the employer’s right recovery said: assignment necessary. statute confers “No right by way subrogation.” rights employer’s This decision was subse quently approved Taylor Utley Gaskin, Inc. & *8 Milling (1943), Bay 561, 305 Mich 575 and State Izak (1945), 604. 601, 310 Co.v. Mich 149. 381 Mich
158 of the Oouet. part among § 15, of other 1952 amendment The things, provides of for the deduction reasonable ex penses employer-insurer’s recovery before employee. right from the See to reimbursement Rookledge Garwood, v. 1954 decision our holding employer-insurer’s attorney discussion of fees without reimbursement recovery, expense where this Court 458): (p said “ required an to elect former statute ‘The employer pursue remedy
whether to his remedy compensation or to seek his common-law injury. party causing the Under the third employee may present the pensation statute the receive com proceedings compensa or take to enforce party. payments also tion sue the provides in that in substance, statute case recov ery against party, expenses deducting the third after recovery, judgment the amount is to be used or first reimburse the the workmen’s compensation paid insurance carrier for amounts payable under the act to date of re covery paid and the to the em balance insured ployee dependents. pertains This his statute remedy applies present and hence to action. Judd, Judd v. 125 Mich 228; Schloss, Heineman v. Mich 153; Robinson, Nash v. Miсh 146; Detroit Michigan, v. Club State 309 Mich v. 721; Stott Realty Company, Stott 288 Mich 35. Since the' change in the statute created no new cause of ac procedural merely tion and the amendment limited governs defense, the amended statute this contro ” versy.’ (Emphasis ours.) construing legislative keep In intent, we in mind holding regard mandatory our to the word “shall”1 Shiawassee (1928), Smith 241 Mich v. County School Village 366; (1903), District No. 132 Mich Durand 6, Fractional, Board, Amber Supervisors Township *9 159 Lines Opinion the Court. act and its amendments as whole, the construe and possible pro- avoiding construction of one if thus to render manner as another of in such a vision effect.2 no Appeals’ agree with the Court of con- do not
We requires act hold that the reimburse- that to clusion “ ‘any recovery against from to be ment made party damages resulting personal in- from for ” “nullify juries’ providing for the section would employer separаte and releases of or settlements employee’s or interests.” claims quote approval following plain-
We with tiff-appellant’s brief: plaintiff’s dispute the defend-
“The crux of with Appeals jugular the Court of ants and with issue—lies not —the proposition employee in the an that may employer-insurer an each and or settle release party appear’, but, a third rather, as ‘their interests shall what constitutes the ‘interest’ that each may affecting settle without interests other.”
Paragraphs quoted 1 and 5 statute above right recovery bring action, establish the Paragraph provides that and reimbursement. 1 employer employee may both and become plaintiff, paragraph the action states that may brought any damages “for to recover which repre- employee dependents personal or his in an entitled to recover actiоn sentatives will be damages recovery” “any re- for tort” and that only, personal injury sulting or death “from after expenses recovery, shall first deduction compensa- employer its workmen’s reimburse ours.) (Emphasis carrier.” tion insurance Foundry Wyant (1960), 359 Campbell, Co. Cannon 2 Joslin v. & Taylor 420; (1960), Mich. v. State ^ LSept. Í49. 38Í 16Ó Micii op tiie Court. provide for Paragraphs settlement. 3 and employer provides that both em- Paragraph 2 judgment. before to settle ployee have employee’s provides shall Paragraph release by the insurer, action a bar not be plain paragraph if 4 makes “any injury then “for or death” his claim settles expenses moneys after deduction of recovered” so ap- attorney recovery including must be first fees *10 employer-insurer. plied of the to reimbursement statutory provision allows no alternative granting approving court’s the trial order оther than summary plaintiff against judgment in favor of Quimby. Clayton L. defendant question: remains the Should defendant There Quimby’sattorney, George McCargar, L. Jr., be held ? liable complaint alleged that
Plaintiff’s on or about Quimby 1960, defendant commenced the October, county action in the circuit court for the of Jack- Quimby McCargar, having- son that defendants and ; knowledge plaintiff that intended re- intervene, quested plaintiff promising- not to do so, that if agree plaintiff Clayton so would “that defendant L. Quimby George McCargar and defendant L. would any judgment might hold and secure that be re- against third-party joint covered tort-feasor for the plaintiff benefit of and defendants and until respective rights plaintiff total and defendants could be thereto ascertained, determined or settled; Clayton Quimby that defendant L. and defendant George McCargar promise L. agree did further and exchange by plaintiff for said cоnsiderations that negotiations no completed settlement would be or accomplished knowledge without the and consent of plaintiff respective rights plain- without the 1968] 16l Lines v. op the Court. any tiff and defendants and to settlement sum having first been determined and settled, and de- promised plaintiff fendants further would be currently constantly kept advised and informed progress negotiations all of the settlement they Relying promises, and when occurred.” on said plaintiff did not intervene, and on 20, December accomplished 1963, defendants the settlement and knowledge dismissal of such action until suit. Plaintiff had no January 18,1964. any
Defendants’ answer denied “that there are representations agreements any type or or kind plaintiff rely on whatsoever which the could promises, agreements repre- the reason that such deny did not sentations exist further defendants attempting that vene in said refrаined from to inter- agreements because of
law suit promises.” George McCargar L. Defendant filed motion for ' summary judgment.
January opinion the trial filed an court disposing McCargar’s holding: of defendant motion “The law, workmen’s taken as *11 recognize whole, would seem to compensation participate any insurance carrier to recovery by from a third tort- * * * feasor. plaintiff “Was there a contract between Mc- and Cargar that the latter hold funds divided? until question, depend This is fact and the answer will upon proofs. This issue cannot be determined * # * summary on a motion. opinion “The court of that the motion for summary judgment should be denied.” Plaintiff summary judgment filed its motion for plaintiff’s and denying defendants answered con- genuine tention any that there nowas issue as to S8l Mich op the Court. except damages, material fact to the amount stating and is a “that there real issue fact.” “agreed stating An statement of facts” was filed it was: summary purposes plaintiff’s “For motion for
judgment, by parties heretofore filed in this matter, respective stipulated their counsel have and agreed upon following statement facts:”. agreed There followed in the statement of facts regard starting recitation in action—defendants’ asking plaintiff’s furnishing information, for and plaintiff’s knowledge. and settlement without any way statement, did however, not refer any agreement plaintiff between and defendants any judg- that defendants would and “hold secure might third-party ment that be recovered joint plaintiff tort-feasors for the de- benefit of respective rights plain- until the fendants total tiff and defendants thereto could ascertained” as alleged by plaintiff in its declaration. agreed
This statement of facts established that plaintiff paid on October 12, 1957, $10 to one third-party tort-feasors аnd other $700 third-party tort-feasor, and secured from them they might against plain- release of tiff. claim have opinion pass upon The trial court refused to plaintiff’s stating: motion, stipulated “The facts are silent as to how the payment of the settlement was handled. In the ordinary Quimby course events defendant attorney, McCargar, Mr. his would have named been payees of the check. If this is so, settlement both indorsed the the court hold instrument, would that both held defendants the funds as trustees. expenses Out of these funds would first come the recovery, including attorney then the fee, paid by way amount *12 1968] Quimby. Lines op the Court. accruing tbe balance with reimbursed
would be personal would be lia- There defendant plaintiff’s part defendants for bility both on of this issue there for the determination But share. hearing stipulated in facts or lieu more must The court will await the court. before thereof thereоn.” action counsel’s subsequently stating filed that
An affidavit both payees indorsers defendants were of the draft August evidently and on court, satisfied summary judgment granting was an order severally jointly and both entered defend- ants. plaintiff of his
Defendant advised selection de- McCargar attorney starting as his before fendant plaintiff disagreement showed no his action. And any or concern as to whether choice, with defendant’s the attorney paid contingent on a was to be basis way. paid in some other pleadings disclose that defendants denied any any fiduciary “there obligation” constructive trust or was any agreement any moneys to hold third-party for the bene- tort-feasors received summary judg- plaintiff. fit of Plaintiff’s motion for ment claim. abandoned way nothing There the settle- was unusual recognized and the trial court concluded, ment was ordinary stating opinion: “In the this fact an attorney, Quimby сourse of and his events defendant payees McCargar, named Mr. would have been the settlement check.” presented for
The trial first motion court summary judgment have that the court would stated agreement proof there was have as whether McCargar that defendant between plaintiff, but for the funds would be held in trust summary judgment final motion for the second and McCargar solely proof granted was on the *13 381 op Opinion the Court. payee was named as tiff claims that the sole and indorsed the check. Plain-
proof that defendant Me- Cargar payee was indorser and was sufficient to against justify summary judgment defendant Me- Cargar. specifically pro- is to
It be noted that the statute expenses recovery prior vides deduction of of judgment figure. to a division of the settlement or provides expenses The statute further a definition of recovery of as follows: “Expenses recovery shall be the reasonable
expenditures, including attorney fees, incurred in effecting recovery.” provides expenses
The statute further recovery apportioned by shall be the court be- parties appear tween the their as interests at the recovery. time of summary judgment against
The defendant at- MeCargar torney erroneously entered and was must be reversed. judgment Appeals.
We reverse the the Court judgment against affirm the We trial court’s de- Quimby judg- fendant and reverse the trial court’s MeCargar. ment defendant purpose entering is The cause remanded for the opinion. conformity with order this No costs, party prevailing neither in full. J., C. and T. M. Dethmers, Kavanagh, Adams, JJ.,
and T. E. Brennan, concurred with J. Kelly, reversal). (for agree generally J. with I Black, part (CLS Kelly’s Justice view of 3, section §17.189]), yet §413.15 [Stat Ann 1960 Rev apparent am unable to indorse his conclusion that plaintiff’s preponderating evidentiary support of allegation agreed “hold defendants —that* * * joint plaintiff for the benefit of secure. Lines t>y Black, requisite judgment to decretal defendants” —is in favor of both reimbursement defendants. appear My regard in that will reasons position procedural presently. But first to today’s stage. the cause at stipulated parties “For certain facts have summary judg plaintiff’s
purposes motion agree general being only. there Hence, ment”'; that grant of sum motion for and latest ment that this demonstrably mary judgment order, was out unanimously repeat intro that which in order Improvement Association v. of R. R. duced reversal *14 (echoed by (1965), 177, 178 175, Mich 374 Thomas May upon agreed of Berkaw v. reversal the writer (1966), Congregational Mich 239, 378 Church flower 272): 271, years many this Court in recent too occasions “On equity necessary cases to remand has found a reason known equity’s jurisdiction. specially to Sternberg Falkner Mich Baxter, 8, 18; v. 373 See Bell, v. 368 Kent 17, 25; Mich Brookfield, v. Mich 75, 76, 368 Village Kenney Novi, 367 Mich 443, v. 451; 8, Mich Crocker, 362 and Crocker v. quote Upham, Culy 135 Mich all v. of which or cite (106 Rep 388). Upham Culy this In Am St regularly appears (p 135): quoted passage “ ap- to seem wish, silence, our do not ‘We adopted procedure If we prove had case. in this legal judge disagreed on the trial with the opinion, proposition we could not in this discussed disposition should of the case. We a final have made the record for another been forced to remand have general hearing rule, suits in the court below. As chancery in the lower court at be so tried should they appealed, may finally this when are Court that, ” pleadings.’ dispose of the raised issue appeal exposes evil This anew the arrant of Mich- Pomeroy igan’s equity. 1963 “union” of law and powerfully it, mеet foresaw that evil acted 381 Opinion by Black, presently shall as we see. did So this Court in Judge (1889), Brown v. Kalamazoo Circuit 75 Mich prep- 274.1 It was indeed announced motive for profession aration and submission to the of Pome- roy’s great equity jurisprudence. on work See preface appearing every to that in work, edition particularly portion para- thereof, this of the third graph : conception system of this is the the central
“As distinctions between actions of all external abolition at law and suits equitable rights equity, legal the union and and proceeding, remedies in one equitable many important the substitution legal confidently supposed place it was methods, progress equity of time the doctrines of supremacy over obtain a those of the law in would the administration jurisprudence justice, and that the entire gradually of a State would become equitаble, equitable more more informed with no- It confessed, tions. perience must be I think, that the ex- past years points in these States directly contrary Every to a must admit result. observer careful adopted that in all the States which have procedure greater been, there has to a reformed degree, weakening, disregard or less decrease, equitable principles jus- in the administration of tice.” (Emphasis supplied by present writer.) tion mously upheld equity’s controversies dealt with which has been union as then advocated. Those Mich Law Rev 1059 and trial “Union” has turned out unchallenged (in judicial proceedings distinguished confusion power. See Justice theses) sharp The Brown Case is worth 1 Read Joiner and (pp 278-285), 274, of trial criticism declaration the attorneys judicial by jury.” opinion more of Brown of the Campbell’s litigatory (1957), providing have been responsibility. *15 Geddes, constitutionаl of constitutional pith to be a 75 Mich which, by equitable v. Kalamazoo Circuit reading- again, of which “The expense, written discussion of the constitutional reasons were compelled misguided marriage, right: Union status as a is concentrated around this more methods all of the now that “The of Justice to work under “union.” delay supported (p Law and is as sacred as the part right alleged and Judge Campbell, our trial certainly to have the Equity,” professorial reasons for (1889), spawn 1060) judicial judges unani equity more ques yet 16? v. Qtjimby. Lines by Brack, preface, Pomeroy pointed in the same out As guard equity against proceeded Parliament English judica- quoted tendency by amending the clause: ture act of 1873to include the any and “Generally, which there is matters in all equity the rules between or variance conflict with reference to law the common the rules (1 equity prevail.” shall the rules matter, same Symons] Equity Jurisprudence Pomeroy’s [5th ed, phrasing present pp xxiv. For the xxiii, equity providing rules of shall that “the amendment Halsbury’s England prevail,” Statutes of see 481]). p [2d Burrows, ed Michigan decided to when unionize Nevertheless, legislature equity, nor Court and neither this law protective provide influence of such bothered judicature in the revised act or in either clause, 1963. Now there are no Pom- Rules of the Court Every eroys no around. action Campbells upon “complaint,” brought courts, circuit now our loosely generally regarded lawsuit where- as a is in the result “judgment,” by a not a “de- is effected (GCR 518.1), all to detriment cree” experience equity now bv the unionized as all know of 1963-1968. excepted, judge Judge only no Circuit
Here,
Smith
writing case thus far
to have realized
this
seems
equitable
purely
it is
in nature.2 The
proceeding upon
theory
employer,
con-
of a
charges
pleads
the essentials and
trust,
structive
impressment
equitable
of an
for determination and
upon proceeds
by and Ms
received
lien
attorney
settlement of
sec-
when the two effected
concerning
cats,
phrasing
song
two
the Justices
Iii
old
Company, Inc.,
Spoon-Shacket
and around on this
went round
five
County
(1959),
On that occasion the
168 by Black, knowledge notice to or without lawsuit tion beneficially Aside that settlement. interested one legally purely erroneous one technical by answer de- from section sole them drawn they against pleading is that as offer fendants made agreement promise to consult with or no respect to settlement with to the account of employer, that action and the section action, having intervene in section failed Signifi- against them. cause is without stipulation paragraph of facts 7 of the here is cant judg- summary plaintiff’s upon motion which the circuit court: ment -wassubmitted de- 19, 1963, December about That on or “7. attorney, Quimby, through Clayton his L. fendant defendant McCargar, George a set- effected Jr., L. party alleged tort-feasors with the tlement for the sum both without the was effected This settlement $25,000. knowledge or the consent plaintiff, received no funds and the has participated therefrom, nor has or benefited any agreement provided way other from the settlement. The settlement by stipulation, that, the circuit alleged third-party court action tort- immediately upon feasors the dismissed, would accomplishment settlement, the third tort-feasor did cause the circuit court action it to be which dismissed, dismissal was also accоm- plished plaintiff. knowledge without or consent of the copy agreement A true of the settlement alleged with third-party effected defendants prior tort-feasors has also hereto been admitted into evidence as an exhibit and this reference incorporated.” is here duty
Now for the statute and of reimburse- thereby. ment created Since its effective date the (PA 1952 amendment 155) of section 15 1952, No widely successfully has been employed according purposeful design, exceedingly its more so than Lines *17 by Black, Opinion J. judges apt appellate know. are to Grant- detached phrasing separately paragraphed ing is its plan contradictory, the sec- central the somewhat tion application unclear or difficultof has never been plan was elimi- That central to trial courts. in our compensably choice which a in- the irrevеrsible nate required employee originally jured to was make be- compensation right the to workmen’s the tween party, permit against to some third of suit party against prosecution without of suit that third employee’sright jeopardizing to receive the compensation to the fullest to extent, and workmen’s employer provide that have on reimbursement, the “paid of workmen’s benefits account recovery,” any payable out of to or amount date or recovered from such “expenses party,
third recovery” having first been deducted. by Judge clause, reimbursement
As held
Smith
appearing
paragraph of
is
15,
fifth
section
controlling
what defendants claim
as
employs
language
The clause
of the section.
other
“any”
adjective
which
that
every
takes
as
all-inclusive
“Any”
all.”
“of
and “each one of
kind,”
“all,”
says.”
just
dis
what it
See
indeed mean
seems
“to
scope
“any”
thereof when
and the due
cussion
Harrington
employed
statutes,
in contracts and
(1920),
Ass’n
Men’s Accident
Interstate Business
v.
Agricultural
331; and
327, 330,
210 Mich
Gibson
(1937),
Now
Ins.
282 Mich
289.
Co.
Life
for the clause:
“Any recovery
for dam-
injuries
only,
personal
ages resulting
or death
recovery,
expenses
deducting
shall first re-
after
employer
compensa-
imburse
or its workmen’s
paid
pay-
any
insurance carrier
amounts
tion
compensation act
date
able under the workmen’s
recovery,
paid
and the balance shall forthwith be
dependents
personal rep-
to the
or his
Mich by Black,
pay-
pay-
an advance
treated as
he
and shall
resentative
employer
hy
future
on account
ment
ment
compensation benefits.”
controversy
precedent
respect-
having been
There
interpretation
ing
right
claimed
of section 15 and the
plaintiff employee
settle with the de-
quoted
keep
clause
all,
tort-feasor and
fendant
question
prompts gentle
have
whether it would not
morally,
-legally, equitably,
ethical-
been better—
ly
to settle for the
of intent
warn the
—to
latter, as
alerted
that the
amount so
available
intervenor,
controversy
proceed
might
have the
pending
15 action.
section
court
settled
equity,
Judge
not to
Smith
*18
But that was
rightly
be
propose
to bless
not
heeded, does
saw and
have done.
these withholders
what-
opinion,
drafted
Justice
The Court’s
Kelly,
legislature
my
fairly
in
view of what
confirms
and enacted.
conceived
when section 15 was
tended
But
appli
mere
case than the
there is more to this
legal
as
as well
There is
cation of a statute.
up
dealing
duty
speak
equitable
fair
calls
when
(Nowicki
furtive action
silence and
for more than
Podgorski
v.
32;
Mich
Sullivan
[1960],
18,
359
v.
application
218);
also
[1949], 326
Ulrich
duty
equity’s
who breaсhes that
maxims to one
of
expense
at the
and does so
his own enrichment
upon
Accordingly,
rec
the limited
of another.
prima
far, I hold the defendants
ord made thus
facie
performance
responsible
for the due
as trustees
by their
arose
which,
actions,
constructive trust
a
allegation
plaintiff’s
“no
The
benefit.
for the
veritably,
accepting
agreement,”
promise
it
is of
question
fact.
re
We
and makes no
no relevance
unanimously,
jected
in the
defense,
that kind of a
(1958),
no whatever and, clincher, a that even trust, a was said about orally promised promise would if she had so frauds. under the statute of have been unenforceable keeps land. Her is that she conclusion all this fact that in is overlooked “What any all, trust at more is not a trust the сonstructive than the vices. Justice quasi-contract contract. on is a See Scott § remedial de 462.1. Both are Trusts, Law put by Mr. constructive as was trust, The through which the ‘is formula Cardozo, prop expression. equity When finds conscience acquired that in circumstances erty has been may good legal in con not, title the holder of the equity converts the beneficial science, interest, retain Guggenheim Beatty Exploration him v. into a trustee.’ (122 378). NE It arises ., Co NY opera by operation (Of., ‘unless act or law. § [Stat supra.) Ann 1953 of law’ CL 566.106 tion quoted That § 26.906] footnote, de Rev fendant irrelevant. utterly promise to hold in trust is made no contemp trust is as constructive promises promises broken. not made as tuous promises fleeing with loot a thief his The fact that nothing. nothing He him remains construc avails (91 Lightfoot Davis, 198NY NE tive trustee. Rep 817). 119, 139 Am Fraud 29 LRA St 582, in the NS require, inception deceit, we do not nor nor chicanery guises, of its varied for it is not acquired. necessary property wrongfully It *19 unconscionably enough is that it be withheld. Mc Creary Rudenberg v. Shields, 290; Clark, 333 Mich v. Supp necessary, 72 F 381. Nor is to move the plaintiffs that chancellor’s have suffered conscience, although a in most a there is both loss loss, eases plaintiffs gain to the and a like to the defendant. (30 Carter, United States v. 217 286 US S Ct 769); Nye Co., 54 L ed Olwell v. & Nissen 26 Wash (173 139); Carey 2d 282 P2d 652, 169 ALR Safe Deposit (178 242).” Trust A & Md Co., 168 501 Mich by Black, To summarize: McCargar,
So far concerns the as defendant a lawyer, smidgen knowledge credit him with that original right plaintiff employer pro- this expired by ceed the sued tort-feasor had lim- McCargar, requested having itation when he, and cooperation received the of that to com- monly end,3 desired went with ahead this business secretly procuring retaining and of a fruits being agreed equi- section settlement. That fact, imputes ty duty timely to him the disclosure cooperating employer sepa- of intent to settle rately, no matter his conviction that section 15 au- having per- thorized what he And, did. failed to duty, equity charges per- having form such him with formed it with beneficial result. is Such this Court’s obligation by equity’s force of first and ninth max- regards ims that ; she as done should what have been imputes done, and resolute intent to fulfill an obli- gation. McCargar paid,
That defendant
should
and
as
“expenses
recovery,” goes
saying.
without
escape
That he should
on
account
re-
whatever
sponsibility equity attaches to his shrouded action
something
present nothing
else. For the
further
beyond
parties
need be said
comment that the
have
stipulated only
required
to such
are
facts
for so-
as
question
interpretation
lution of the
tion
have
said sec-
equities
payable,
any,
and
15. The
amounts
if
yet
agreed
not
as
been worked out or
to; hence
hearing
a full
of the case should now be ordered.
judgment
I would
and
reverse
Division 3
proceedings may
direct remand for such further
stipulated
It was
below:
alleged
pursuit
“5. That in
of the action
tort-feasors,
requested
sought
from the
defendants
copies
investigation
reports,
log
reports,
reports
medical
so
prosecution
preparation
as to assist them in the
of their case.
plaintiff provided
sought.”
with
defendants
the materials
*20
Lines
v.
Black,
by
.3.
Opinion
foregoing views. Plaintiff should
with
be consistent
appellate courts. Costs in cir-
of both
have costs
result.
final
should abide
cuit
part
{dissenting).
case,
This
while
O’Hara,
distinguishable
factually
American
Gamble
Company (1968),
CITY OF SAGINAW v. BUDD. op the Court. Municipal Corporations 1. Constitutional Law — —Ordinances. city declaring structurally buildings Section of ordinance unsafe held, requiring and in- a nuisance demolition unconstitutional improper police power valid as an exercise of tbe municipality improper delegation legislative and as an authority precise to an administrative official without stand- guide actions, ards to ordinance nor his where neither general building up (Saginaw code set definable standards D-511, 203[a]). Ordinance § [1] [2] [3] Am38 Am37 Am37 Am37 Jur, Municipal Corporations Jur, Municipal Corporations Jur, Municipal Corporations Jur, Municipal Corporations References por Points § 651. §§ § § in Headnotes 156. 176.