Jones v. Motorbuses

• Decision Date: 02 February 1939
• Docket Number: No. 12.,12.
• Citation: 283 N.W. 710,287 Mich. 619
• Parties: JONES v. EASTERN MICHIGAN MOTORBUSES.
• Court: Michigan Supreme Court

287 Mich. 619

283 N.W. 710

JONES

v.EASTERN MICHIGAN MOTORBUSES.

No. 12.

Supreme Court of Michigan.

Feb. 2, 1939.

Action by Jeanette Jones against the Eastern Michigan Motorbuses to recover for injuries sustained in a fall as she was alighting from the defendant's motorbus. Judgment for defendant, and the plaintiff appeals.

Judgment affirmed.Appeal from Circuit Court, Wayne County; Vincent M. Brennan, judge.

Argued before the Entire Bench.

Louis J. Colombo, Jr., and Anthony A. Vermeulen, both of Detroit (Louis J. Colombo, of Detroit, of counsel), for appellant.

Kerr, Lacey & Scroggie, of Detroit, for appellee.

NORTH, Justice.

I am in full accord with the result reached by Mr. Justice McALLISTER on the merits of the instant case. However, notwithstanding it is not necessary to decision, he has written at length concerning the power of this court under Court Rule No. 64 (1933) to review in the manner provided in the rule determinations of controverted issues of fact on appeal in nonjury law cases. His conclusion, as I understand, is that in so far as the rule provides that this court upon such appeals may review issues of fact for the purpose of ascertaining whether the determination of the lower court was against the preponderanceof the evidence, it is unconstitutional. With such conclusion I disagree.

In his opinion my brother states that the plaintiff ‘on appeal seeks to have this court weigh the evidence to ascertain whether or not it preponderates in favor of plaintiff. Counsel contends that on appeal in law cases tried before the court without a jury, the review in the Supreme Court is a trial de novo.’ My brother concludes: ‘On review of law cases, tried without a jury, we do not either re-try the issues between the parties, or weigh the evidence to determine which preponderates or has the more convincing force; nor do we hear such causes de novo, nor determine them according to the practice in equity cases. Unless the verdict or judgment is against the clear preponderance of the evidence, it is not disturbed on appeal.’

How can this court determine that the judgment of the trial court is or is not ‘against the clear preponderance of the evidence,’ unless this court weighs the evidence as presented to it in the record on appeal? If my brother's opinion could be construed to be limited by the sentence last above quoted, I could subscribe to the result reached; but unfortunately many statements in his opinion seem to me to go far beyond this limitation. In this connection he says: ‘And it is clear * * * that although this method of review [by writ of error] may be designated an appeal, such appeal does not enlarge or change the right or scope of review as heretofore existing by writ of error, which brings up the record for review of errors of law and not of fact.’

Clearly the above conclusion cannot be sustained if under our Constitution this court has the power to regulate its practice and procedure in the manner provided in Court Rule No. 64 (1933). The pertinent portion of the rule reads: ‘Upon appeal to the Supreme Court from a judgment in an action at law tried without a jury, such judgment may be affirmed or reversed, the cause remanded with directions, or a new trial ordered. Appellant may assign as error that the judgment is against the preponderance of the evidence; * * *’

The issue is whether this court under the Constitution has the power to promulgate such a rule. If it has then on appeal from a judgment in a nonjury law case, if such judgment is challenged in that particular, it is the duty of this court to determine whether ‘the judgment is against the preponderance of the evidence.’

The relevant provisions of the Constitution are found in Art. 7. They contain the following:

‘Section 1. The judicial power shall be vested in one supreme court, circuit courts, probate courts, justices of the peace and such other courts of civil and criminal jurisdiction * * * as the legislature may establish. * * *

‘Sec. 4. The supreme court shall have a general superintending control over all inferior courts; and shall have power to issue writs of error, habeas corpus, mandamus, quo warranto, procedendo and other original and remedial writs, and to hear and determine the same. In all other cases it shall have appellate jurisdiction only.

‘Sec. 5. The supreme court shall by general rules establish, modify and amend the practive in such court and in all other courts of record, and simplify the same. * * *’

Under the above constitutional provisions all judicial power is vested in the Supreme Court and other inferior courts (Sec. 1) over which the Supreme Court has supervision and control (Sec. 4). With judicial power thus vested by the Constitution, it seems too clear for argument that the power to regulate procedure is inherently vested in the Supreme Court, to be exercised under its rule making powers. The express provision of the Constitution is: ‘The supreme court shall by general rules establish, modify and amend the practice in such court and in all other courts of record, and simplify the same.’ (Sec. 5)

In reviewing determination of controverted issues of fact in nonjury law cases under Rule 64, we still act only as an appellate court. This we do under the constitutional provision: ‘In all other cases it [the Supreme Court] shall have appellate jurisdiction only.’ Sec. 4. For the purpose of exercising its powers as an appellate court, this court may inaugurate and utilize any appropriate writ or procedure as in its judgment may be deemed fit. Otherwise its plenary power granted by the Constitution to superintend and control inferior courts is restricted and does not measure up to its full constitutional investment of judicial and supervisory powers. While the Constitution provides by enumeration certain original writs which the Supreme Court has power to issue, it is worthy of note that this provision is not restricted, because the Constitution expressly gives this court power to issue ‘other original and remedial writs, and to hear and determine the same.’ But as just above noted, Rule 64 (1933) pertains solely and only to appellate procedure in the Supreme Court; and § 4, Art. 7 of the Constitution vests this court with plenary supervisory and appellate powers, and § 5 gives it rule-making power to enable it to function. No provision can be found in the Constitution which forbids review in law cases by this court by appeal. This is true because the proceeding is wholly appellate, not original, and does not involve the issuance of an original writ. But, assuming that issuance of an original writ were required on such appeals, this court by express constitutional provision is empowered to issue ‘other original and remedial writs.’

Even if we were to concede that a review of law cases in this court is confined to the same character of review formerly obtainable by writ of error, still it does not follow that issues of fact cannot be reviewed in law cases under the court rule providing for such practice. Even when appeal in law cases was by the common law writ of error, the long established practice in this jurisdiction permitted review of testimony as to essential facts, if under such writ of error there was an assignment that the finding or judgment of the court was contrary to the clear or overwhelming weight of evidence. 3 Comp.Laws 1929, § 14266; Kotzke v. Kotzke's Estate, 205 Mich. 184, 171 N.W. 442;Hamburger v. Bank of Detroit, 218 Mich. 173, 187 N.W. 535. Under Rule 64 (1933) in its review on appeal in nonjury law cases this court does nothing more nor less than to determine whether ‘the judgment is against the preponderance of the evidence,’ in event such an assignment of error is urged. It is difficult to conceive how this practice under the rule upon appeal differs materially from the former practice of this court upon issuance of its writ of error. This is true notwithstanding decisions almost without number can be found wherein in substance it is stated that the writ of error brings up for review only questions of law, not questions of fact. Such statements must be read and construed in connection with the following stated by my Brother McALLISTER in his opinion: ‘However, it is important to bear in mind that while the writ of error brings up for review only errors of law, and not of fact, a finding of fact may in itself be an error in law. Styles v. Tyler, 64 Conn. 432, 30 A. 165;Fernald v. Bush, 131 Mass. 591; The E. A. Packer, 140 U.S. 360, 11 S.Ct. 794, 35 L.Ed. 453;Bedlow v. New York Floating Dry Dock Co., 112 N.Y. 263, 19 N.E. 800,2 L.R.A. 629;Kennedy v. Porter, 109 N.Y. 526, 17 N.E. 426.’

Under Court Rule 64 (1933) it may be said that the determination by this court of whether ‘the judgment is against the preponderance of the evidence’ is a question of law rather than one of fact. This is true because, generally speaking, a judgment in a law case which is entered in favor of the party, notwithstanding the preponderance of the evidence is to the contrary, is a judgment entered in violation of law. So viewed, the scope of the appeal provided by Rule 64 (1933) is not violative of the Constitution even under the construction adopted by my brother.

I am quite in accord with my brother that since the writ of error is a writ for which provision is made in the Constitution, this court could not by the exercise of its rule-making power abolish such writ nor could the legislature by statutory enactment abolish it. But in this connection it may be noted that no attempt has been made either by rule or statute to abrogate or abolish the writ of error.

In passing it may be pertinent to note that my brother digresses from the issue under consideration when he states in his opinion: ‘The question of the unconstitutionality of Rule 75 (1931) providing for review of law cases, according to the practice in equity cases, appears never to have been raised in any adjudicated cases, or...