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O’Hara, J.
This is an appeal from an order compelling sale of entirety interest in property in an amount fixed by the trial judge. The wife, plaintiff below and appellant here, appeals of right.
The grounds for divorce were not contested. A property settlement was agreed upon in the following excerpt from the judgment.
"It is further ORDERED AND ADJUDGED that the eighty (80) acre parcel owned jointly by the parties in Newaygo County, Michigan, shall remain as joint property of the parties; however BUCKNER M. SHAHAN, Defendant, shall have the right to purchase the interest which CARMEN L. SHAHAN, Plaintiff, has in said property at any time in the future that he desires. The price that BUCKNER M. SHAHAN agrees to pay CARMEN L. SHAHAN, for her interest in said property is to be one-half (1/2) the amount agreed upon by two (2) appraisers as the fair market value of said property. One of the appraisers shall be selected by CARMEN L. SHAHAN and one shall be selected by BUCKNER M. SHAHAN. If these two appraisers are unable to agree as to the fair market value of said real property, then in such an event, the two appraisers shall agree on a third appraiser and when two of the three appraisers agree as to the fair market value of the property, that amount shall be determined as the fair market value of the property.”
Defendant husband declared his intention to purchase plaintiff wife’s interest.
One appraiser, plaintiff wife’s, established his figure on the basis of $250 per acre for the 78-acre tract. This by simple multiplication equals $19,500. One half of that figure is $9,750.
For some reason that is not clear on the record, this same appraiser then modified this estimate by affidavit submitted on behalf of the defendant husband; and fixed the value at $10,000. Half of that is $5,000. Then the defendant husband offered from the witness stand to up the figure to $6,000.
By this time we can imagine the learned trial judge became fed up with the situation and decided to take the matter into his own hands. He fixed the value of the wife’s interest at $6,000.
We are sympathetic to his well-intentioned attempt to do equity. Perhaps the law would be better had he been able to. However, and it is a crucial "however”, such is not the law. Seldom has the Supreme Court spoken in such unequivocal terms as it did in the case which controls this controversy, Dana Corp v Employment Security Commission, 371 Mich 107; 123 NW2d 277 (1963), a case not cited by either party:
"To the bench, the bar, and administrative agencies, be it known herefrom that the practice of submission of questions to any adjudicating forum, judicial or quasi-judicial on stipulation of fact, is praiseworthy in proper cases. It eliminates costly and time-consuming hearings. It narrows and delineates issues. But once stipulations have been received and approved they are sacrosanct. Neither a hearing officer nor a judge may thereafter alter them.” Dana Corp, supra, at 110.
If this be true of a simple stipulation of fact, it is all the more true of a condition agreed to in a consent judgment.
The trial judge was powerless to alter the plain unambiguous terms of the proviso.
The order entered by the trial judge is vacated. If both parties are satisfied to repudiate the quoted proviso and leave the matter to the trial court’s judgment, it can be accomplished by stipulation and amendment.
That is their business. Otherwise the determination of value must follow meticulously the terms incorporated in the original consent judgment of divorce.
The cause is remanded to the trial court for disposition in accordance herewith. Costs to appellant wife. | [
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M. J. Kelly, J.
The present action is a shareholder’s derivative suit brought by plaintiff, Marvin Mazur, against the defendants, Richard Blendea and various corporations. At trial it was agreed by court and counsel to try the issue of ownership in the defendant corporations separate from the claims of corporate abuse. The trial court concluded that plaintiff was not a shareholder and dismissed all of the consolidated lawsuits on the ground that plaintiff had failed to state a cause of action. Plaintiff’s motion for reconsideration of the judgment or in the alternative, a new trial, was denied and plaintiff’s appeal by right followed.
Plaintiff, on appeal, raises only one issue of substance, that being whether the trial court’s finding that plaintiff was not a shareholder is against the great weight of the evidence.
A shareholder’s derivative action, being equitable in nature, is reviewed de novo in this Court. See Dozier v Automobile Club of Michigan, 69 Mich App 114; 244 NW2d 376 (1976). However, the de novo review of equity cases must be reconciled with the mandate of GCR 1963, 517.1 which states that factual determinations made by a trial court sitting without a jury will not be set aside unless clearly erroneous. In Ford v Howard, 59 Mich App 548, 552; 229 NW2d 841 (1975), this Court explained:
"It is well-settled in Michigan that although chancery cases are reviewed de novo, this Court does not reverse or modify unless convinced that it would reach a different result had it occupied the position of the trial court. * * * [Citations omitted.]
"It is also true that, whether the action is in law or equity, principal regard must be given to the special opportunity of the trial court to judge the credibility of witnesses, and findings of fact will not be set aside unless they are clearly erroneous. [GCR 1963, 517.1.] * * * [Citations omitted.]”
A finding is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been committed after reviewing the entire record, although there is evidence to support the finding. Tuttle v Department of State Highways, 397 Mich 44; 243 NW2d 244 (1976).
The trial court in the present case based its decision on the credibility of defendant Richard Blendea and on the lack of credibility of the plaintiff. The trial court held "that Mr. Mazur [plaintiff] has told too many different versions in the past and is unworthy of belief on the material issues involved in this case, and hence, this Court concludes that Mr. Mazur was never an owner of any of the Car Parts companies, and further, whatever degree of involvement had existed, he relinquished when he obtained and was paid the sums of $5,540.07 and $2,500.00 by the Car Parts companies”. Although the plaintiff presented many witnesses and numerous exhibits, the evidence taken as a whole was often contradictory. After reviewing the record and giving due regard to the opportunity of the trial court to judge the credibility of the witnesses, we are not left with a definite and firm conviction that a mistake has been committed. Although the trial court could have been more specific in setting forth the underlying facts relied on in reaching its ultimate conclusion, neither the trial court’s findings of fact nor its decision is clearly erroneous.
The second issue raised by plaintiff was whether he was denied a fair trial because: (1) the trial was spread over a period of five months; (2) an additional seven months elapsed before the trial court issued its opinion and judgment; and (3) the trial court admitted confusion and poor note-taking ability during the trial. The protracted nature of the proceeding below was undoubtedly nettlesome to the parties. Such interruptions once trial has commenced can hardly be justified on the basis of an unwieldy docket. We do not condone a practice of adjourning or postponing proceedings in the vague hope that accommodation between the parties will be forced. However such does not appear to be the case here. We find no manifest injustice.
We find the note-taking issue frivolous.
Addendum
This is written after having received Chief Judge Danhof's vote to reverse because "the trial judge’s findings of fact are incomplete”. The trial court filed a seven-page opinion from which we extract some 15 factual findings as follows:
1. Plaintiff inconsistently contended that his interest in Car Parts Companies was not an ownership interest nor an equity interest but merely a security interest.
2. That plaintiff had his attorney prepare a document acknowledging that his sole interest in the Car Parts, Inc. was a security interest.
3. That plaintiff’s explanation of how the document came to be drafted was not credible.
4. That plaintiff at one time stated his activities were directed toward assisting his nephew, Mr. Siegel, in acquiring an interest in the Car Parts Companies.
5. That plaintiff suspected his nephew of improper dealings with the various companies.
6. That some of plaintiff’s machinations were directed toward deceiving his nephew.
7. That plaintiff was paid $5,540 in a check issued to him which was exchanged by him for cash in the amount of $5,540.
8. That thereafter an additional check in the sum of $2,500 was made payable to plaintiff.
9. That plaintiff’s conduct was inconsistent with allegations of ownership; but consistent with a debtor-creditor relationship.
10. That if plaintiff ever had an ownership interest he relinquished it for payments of $5,540 and $2,500 by the Car Parts Companies.
11. That plaintiff never made any cash investment for purchase of an interest in the Motor City Leasing Company but on the contrary he and his related companies were indebted to the leasing company.
12. That plaintiff was not a stockholder in Motor City Leasing Company.
13. That the claim against E & A Warehouse Limited Corp. was devoid of any basis in fact and no evidence was adduced to support such claim.
14. That the claim of ownership in E & A was based upon the giving of a favorable credit reference which was contrary to allegations that large amounts of money were owed to plaintiff’s related companies.
15. That plaintiff’s allegations were unsupported by proofs and his testimony unworthy of belief. We find compliance with GCR 1963, 517.1. The plaintiff submitted 63 exhibits and played overtones of numerous possible inferences and conclusions to be drawn therefrom. If the court rule means anything by directing that the findings be brief, definite and pertinent without over elaboration of detail or particularization of facts, it seems reasonable to conclude that the trial judge complied. The final sentence of 517.1 is:
"In the application of this principle regard shall be given to the special opportunity of the trial court to judge the credibility of those witnesses who appeared before it.”
Credibility was the whole ballgame. At the outset of the trial, the trial court heard testimony on a complaint of possible subornation of perjury. The trial court has efficiently enumerated the inconsistencies which led him to conclude that plaintiff was unworthy of belief. To require further elaboration without specific, definitive instructions to the trial court would be unduly burdensome and would result surely in another appellate review.
Affirmed. Costs to appellees.
D. E. Holbrook, Jr., J., concurred. | [
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D. E. Holbrook, Jr., J.
The plaintiffs in both cases being appealed come to this Court from summary judgments in the circuit court of Jackson County. GCR 1963, 117.
In the first case (hereinafter referred to as Oleksy), a doctor sued on behalf of himself and other contributors to the building funds of Mercy Hospital. The defendants were the Sisters of Mercy, a non-profit corporation, operating the allopathic hospital which is located in the city of Jackson. The plaintiffs sought to enjoin the Sisters of Mercy from the sale of Mercy Hospital to W. A. Foote Memorial Hospital. Their standing was predicated on the "time, talent, financial and material resources” they donated which were used to "build, expand and maintain” the hospital. It was alleged that the sale to Foote Hospital would be detrimental to themselves and the community for two reasons: first, that Foote Hospital "is not operated in a Christian atmosphere under a pro-life philosophy, but rather contrary to the preservation of the life of the unborn” and secondly, that the Sisters of Mercy would take the proceeds from the sale and relocate in some other county leaving the Jackson area with a publicly operated hospital. Bruce Barton, the Jackson County prosecutor, moved to intervene in Oleksy but the motion was denied.
An opinion was rendered in the Oleksy case denying standing to the plaintiffs and a motion for rehearing was similarly dismissed. The prosecutor then initiated his own action to enjoin the sale using GCR 1963, 715.2, an action in quo warranto against the defendants, Sisters of Mercy, for abuse of corporate power and for antitrust violations along with W. A. Foote Memorial Hospital. The circuit court, acting on a motion for summary judgment, held against the prosecutor on all counts.
I
In Oleksy all parties accepted and argued the theory advanced by the plaintiffs; to wit, that the Sisters of Mercy, a non-profit corporation, held the property (the hospital) in trust for the benefit of the people of Jackson who contributed time, talent, money and services. The trial judge concluded that in Michigan the Attorney General has exclusive authority to enforce a charitable trust. While we express no opinion on the merits, we affirm the analysis used by the trial judge.
The charitable trust act, MCLA 554.351; MSA 26.1191, recognizes trusts even though beneficiaries and objects of the trusts are indefinite. Since 1965, the Attorney General instead of local prosecuting attorneys must represent the beneficiaries of a trust where they are uncertain or indefinite. A majority of states follow this principle, using the rationale that litigation by private citizens would be vexatious and burdensome. Bogert, Trusts & Trustees (2d ed), §414 p 340; 62 ALR 881; 124 ALR 1237. See also, King v Emmons, 283 Mich 116; 277 NW 851 (1938). Accordingly, we find that Michigan public policy also requires that the Attorney General have exclusive authority to enforce charitable trusts. The lower court opinion is affirmed.
In addition, we reject the second argument advanced by plaintiffs that they should have been permitted to add the Attorney General. Permitting a party who lacks standing to initiate a controversy by adding the proper party (in this case the Attorney General) who has refused to intervene, would vitiate the basic adversarial element of litigation:
"There are always two parties to every ordinary lawsuit * * * Each of the two, in their respective roles, constitute essential elements of the litigation in which they engage.” 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 538.
The trial court in Oleksy correctly rejected the motion to add the Attorney General.
II
In Barton, the Jackson county prosecutor advanced theories based on the alleged ultra vires acts of Mercy Hospital (a non-profit corporation) and violations of state anti-trust laws between both of the Jackson hospitals. The lower court held that the Attorney General is exclusively designated to raise questions relating to abuse of corporate powers under MCLA 450.1271; MSA 21.200(271).
Standing to sue for ultra vires acts comes from various statutory provisions and the court rules. While the parties below referred to the Michigan Business Corporation Act, MCLA 450.1271; MSA 21.200(271), which gives standing to the Attorney General, we would point out that for the purposes of the new corporate law "corporation” is defined as one "for profit”. MCLA 450.1106; MSA 21.200(106). Sisters of Mercy is a non-profit corporation. However, we find that the Attorney General has corresponding power to sue a non-profit corporation under MCLA 600.3601; MSA 27A.3601. The action must be brought in quo warranto under GCR 1963, 715. In the instant case the Attorney General has refused to bring a quo warranto action. Writing a letter to the prosecutor, the Attorney General stated that he had reviewed the request and concluded that:
"All such actions may be properly litigated by you as prosecuting attorney, and if such violations do in fact exist, it is your duty to do so. No security is required. See, GCR 1963, 718.3(2).”
The primary issue on appeal involves the proper interpretation of the quo warranto court rule whenever the Attorney General refuses to act. Having read the arguments of the parties and studied the court rules we conclude that the prosecutor is without standing to bring quo warranto for either charge.
In commentary to the statute for quo warranto, MCLA 600.4501; MSA 27A.4501, the authors stated that prior procedural law was omitted in the statute, yet the substantive coverage for such actions was retained. The "procedure” for such quo warranto actions is covered by GCR 1963, 715.
In the statute, the scope of the remedy is substantially the same as prior laws. Included as matters falling within the statute, i.e., what is properly brought as quo warranto, are claims concerning the abuse of corporate power. RJA § 4521-4535, GCR 1963, 715.2(l)(cMg), People ex rel Attor ney General v Michigan Sanitarium & Benevolent Ass’n, 151 Mich 452; 115 NW 423 (1908).
While we have established that quo warranto is the proper action for abuse of corporate power we must also decide the proper procedure, i.e., the parties who bring the action.
Turning to the court rule 715.2(1), we find that only the Attorney General has the standing to bring a quo warranto action for abuse of corporate power. This standing is found under 715.2(l)(cHg).
Portions of the court rule, to wit, 715.2(2),(3) and (4), permit additional parties to bring quo warranto actions without the Attorney General:
".2 Parties.
"(1) Actions by Attorney General.
* * *
"(2) Actions by Prosecutor or Citizen. Other actions for quo warranto shall be brought by the prosecuting attorney of the proper county, without leave of court, or by any citizen of the county by special leave of the court or a judge thereof.
"(3) Application to Attorney General. Any person may apply to the attorney general to have the attorney general bring the actions specified in sub-rule 715.2(1). The attorney general may require the person to give security to indemnify the state against all costs and expenses of the action. The person making the application, and any other person having the proper interest, may be joined as parties plaintiff.
"(4) Refusal of Attorney General to Bring the Action. If, upon proper application and offer of security, the attorney general refuses to bring the action, the person may apply to the appropriate court for leave to bring the action himself. Leave to bring the action may be granted by the court.”
But these remaining sections of the rule do not permit the prosecutor to bring quo warranto for situations covered by (1). Under (2), "other actions” that may be brought by the prosecutor are actions other than those enumerated under 715.2(l)(a)-(g) where the Attorney General and the prosecutor had been given concurrent power. Therefore the right to bring the ultra vires action is vested exclusively in the Attorney General under (1) and the prosecutor’s case under (2) cannot stand. Next the prosecutor argues that he may opt to bring the action under (3) and (4) of the rule. Those portions clearly apply to citizen actions and not to the prosecutor, who has been mentioned in a separate section of the rule.
The second count of the quo warranto action alleged violations of state anti-trust laws. The applicable statutes are MCLA 445.701, 702; MSA 28.31, 32 and MCLA 445.761; MSA 28.61, under which both the Attorney General and the prosecutor are given concurrent power to bring quo warranto proceedings. The trial court below dismissed the anti-trust count initially on the premise that the anti-trust laws do not apply to non-profit corporations. See, Campbell v North Woodward Board of Realtors, Inc, 14 Mich App 714; 166 NW2d 12 (1968). We find that the trial court need not have discussed the merits of the anti-trust claim. As in the corporate count we are dealing here with an action brought under the quo warranto rule. In this instance, however, the anti-trust statute is inconsistent with the court rules because the prosecuting attorney is given concurrent power with the Attorney General to bring quo warranto. The question of standing in this case is a procedural issue. When statute and court rule conflict, the rule prevails. Buscaino v Rhodes, 385 Mich 474; 189 NW2d 202 (1971). By court rule GCR 1963, 715.2(1), anti-trust actions are within the listed situations where the Attorney General has superior authority despite conflicting statute. Applying Buscaino, MCLA 445.702; MSA 28.32 cannot be evoked by the prosecutor to circumvent the obvious intent of the court rule: that the Attorney General alone bring actions against corporations in situations (cMg).
Ill
Having resolved the Barton case on the issue of standing we need not address the matters of res judicata raised by defendants.
Affirmed. Costs to defendants.
The basis for the prosecutor’s intervention was "in the nature of quo warranto", GCR 1963, 715.2(2), based on the same theory as plaintiffs’ (charitable trust).
We cannot concede as readily as the parties have in the lower court, that the Sisters of Mercy are charitable trustees. See, Bogert, Law of Trusts (5th ed), § 54, p 203:
"If a gift is made to a charitable corporation for any or all of its purposes, with the intent that full title shall vest in the corporation, subject only to the duty of the corporation to keep within the purposes of its charter, no trust is created.”
But cf., Scarney v Clarke, 282 Mich 56; 275 NW 765 (1937).
1965 PA 12, § 1; MCLA 554.352; MSA 26.1192.
MCLA 450.117 etseq.; MSA 21.118 etseq.
The rationale of Grand Rapids v Harper, 32 Mich App 324; 188 NW2d 668 (1971), lv den, 385 Mich 761 (1971), would not apply to a prosecutor. "Any person” should be liberally defined except in cases where the rule has provided more limited application. | [
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Beasley, P. J.
Plaintiff appeals from a decision of the Workmen’s Compensation Appeal Board denying her benefits for an alleged back injury received on or about November 16, 1970.
The decision of the appeal board reversed findings of an administrative law judge which granted benefits to plaintiff.
This is the kind of close case where the temptation is great to substitute the judgment of an appellate court for that of the Workmen’s Compensation Appeal Board. This is particularly so where, as here, the appeal board voted 3-2 to reverse the administrative law judge. But to substitute our judgment would be contrary to the law.
The 1963 Michigan Constitution provides:
"Findings of fact in workmen’s compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law.” Const 1963, art 6, § 28.
This is strong, unequivocal language. This constitutional provision is implemented by § 861 of the workmen’s compensation statute which provides:
"The findings of fact made by the board acting within its powers, in the absence of fraud, shall be conclusive. The court of appeals and the supreme court shall have power to review questions of law involved in any final order of the board, if application is made by the aggrieved party within 30 days after such order by any method permissible under the rules of the courts of the laws of this state.” MCLA 418.861; MSA 17.237(861).
In the case at bar, the appeal board found that the claimant did not sustain a work-related injury on November 16, 1970, and, therefore, denied benefits to her. There was substantial conflict in the evidence. The appeal board has recited the testimony they choose to believe and upon which their decision is based. The test is not whether we, sitting as a fact-finder, would find to the contrary; rather, the test is whether the appeal board correctly understood the law and whether there is evidence to support their findings of fact. DeGeer v DeGeer Farm Equipment Co, 391 Mich 96, 100; 214 NW2d 794 (1974).
The appeal board interpreted the law correctly; if no work-related injury occurred on or about November 16, 1970, plaintiff was not entitled to benefits. No purpose would be served by our reciting the testimony included in the 43 pages comprising a decision of the majority. We would be doing exactly what we are precluded from doing, namely, evaluating and weighing the facts. The appeal board chose to believe evidence which indicated that a work-related injury did not occur on November 16, 1970. It was a permissible finding on this record.
Affirmed.
J. H. Gillis, J., concurred. | [
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D. C. Riley, J.
In challenging his jury-based conviction on a charge of first-degree murder, defendant Ronald Demetrius Green raises eight assignments of error. Of these, one warrants discussion and reversal, namely, the conduct of the trial prosecutor during cross-examination of defendant and during closing argument.
For approximately three days, the jury deliberated the guilt vel non of defendant. Following their requests for the rereading of three witnesses’ testimony and for the redefinition of (1) premeditation, (2) burden of proof vis á vis the respective roles of prosecutor and defense counsel, and (3) the possible verdicts, the jury convicted defendant of the crime charged.
Although one witness definitely placed defend ant at the scene of the slaying, the bulk of the people’s case hinged upon circumstantial evidence.
Given the lengthy jury deliberations and the relative dearth of direct evidence implicating defendant, we are unable to say that the frequent instances of prosecutorial misconduct which occurred below were harmless beyond a reasonable doubt. As Judge McGregor, writing for himself and Judge Holbrook in People v Christensen, 64 Mich App 23, 33; 235 NW2d 50 (1975), observed:
"In order to hold that the error in this case does not require reversal, however, we must also be able to say that it was 'harmless beyond a reasonable doubt’. If it is reasonably possible that in a trial free of the errors complained of, even one juror might have voted to acquit the defendant, then the error was not harmless, and the defendant must be retried.”
We hold that the prosecutor’s behavior exceeded proper bounds in, at least, the following particulars:
1. In the face of defendant’s repeated denials, and over defense counsel’s objection which was sustained, the prosecutor continually insisted that defendant had participated with two individuals (Messrs. Hill and Shannon) in killing Archie Walker. The prosecutor made these accusations even though no evidence implicating defendant with these men had been presented and even though the prosecutor doubted his own ability to supply the requisite nexus. Furthermore, despite the trial judge’s ruling that the prosecutor cease questioning defendant regarding Hill and Shannon, the prosecutor nevertheless returned to the prohibited topic in summation:
"Where are the two men? Where are those men that could come in here and say, 'We wanted him to rent the truck for us.’ They are dead. He told us they were dead. What proof do we have of that? Mr. Green simply says they are dead. Were they ever real people? Can you believe a man who will under the table get a driver’s license, a bogus driver’s license, who will use another man’s name? Were there ever two such individuals? I submit that I have given some names during this trial, a man named Shannon and a man named Hill that are as live as can be. Mr. Green may very well have made up a couple of other names because those men cannot speak here.” (Emphasis added.)
2. In an ostensive attempt to test defendant’s credibility, the prosecutor elicited from defendant admissions regarding defendant’s failure to maintain steady employment, defendant’s failure to register for the draft and defendant’s failure to file income tax returns over a period of years. In addition, the prosecutor repeatedly emphasized defendant’s cohabitation with a woman not his wife (although the prosecutor later indicated he was not condemning this relationship as illicit).
It must be remembered, however, that defendant was not on trial for poverty, or for violation of selective service, income tax or sexual conduct laws. Nevertheless, the prosecutor saw fit to inject tangential issues into the trial which could only divert the jury’s attention and possibly persuade them of defendant’s bad character. People v Johnson, 393 Mich 488; 227 NW2d 523 (1975). The prosecutor’s appellate attempt to distinguish the instant case from Johnson will not wash. Once we accept the notion that impoverished persons have a greater motive to kill for hire than the well-to-do we effectively establish a two-tiered standard of justice and demolish pro tanto the presumption of innocence. Imaginative minds can easily conjure reasons why an impecunious defendant might commit any number of crimes in return for monetary gain; but that is not to say that the law should accept these proffered reasons or that the wealthy should escape the suspicion of criminality that plaintiff urges we apply to the poor.
If the prosecutor truly intended to shake defendant’s story, other less prejudicial means were available. Defendant testified that one of the men with whom he had agreed to vend meat had died of a kidney ailment, and that the other had died from a bullet shot into the home of defendant’s mother. Defendant further testified that the incident had been reported to the authorities and that defendant himself had been shot in the arm at the same time. Surely, these allegations were suscepti ble of verification. At the very least, the prosecutor could have asked defendant to display the scar from the bullet wound. Having opted instead to employ inflammatory methods of testing credibility, the prosecutor cannot now be heard to complain.
3. The prosecutor, at closing argument, asked the jury "on behalf of the People, Officer Pack and myself’ to return a verdict of guilty as charged. In essence, this solicitation is nothing more than a thinly veiled statement that the prosecutor vouched for the veracity of witness Pack and also buttressed this endorsement with the weight of his office. See People v Erb, 48 Mich App 622; 211 NW2d 51 (1973), People v Warren, 65 Mich App 197; 237 NW2d 247 (1975), and People v Hunt, 68 Mich App 145; 242 NW2d 45 (1976).
Taken in the aggregate, the foregoing illustrations, combined with the many lesser transgressions too numerous to cite, prevent this Court from indulging the prospect that the errors were harmless beyond reasonable doubt. That defendant did not enter adequate objection is of no consequence, People v Humphreys, 24 Mich App 411; 180 NW2d 328 (1970), Erb, supra, Hunt, supra, for this case was rife with incurable prosecutorial error and, accordingly, the damage was irremediable.
Reversed and remanded.
Allen, P. J., concurred.
Evidence adduced at trial revealed that three men dressed in coveralls approached the decedent, Archie Walker, in the parking structure of Metropolitan Airport. The decedent resisted their efforts to seize him, so instead they gunned him down. A van and an automobile, both containing evidence relating to the killing, were found at the scene but defendant was not. Defendant admitted renting the van for two persons who, he claimed, had agreed to use the vehicle to sell meat in various neighborhoods. In return, they were to have shared their profits from the meat vending with him. According to defendant, the two men later died—one from an illness and the other from a bullet wound. Repeatedly, however, defendant denied any knowledge of or involvement in the murder of Walker.
The prosecution’s theory of the case is amply set out in the dissenting opinion.
The dissent suggests that defendant’s failure to object frees this Court of the duty to decide whether questions relating to defendant’s poverty necessarily deprived the accused of a fair trial. As the transcript clearly indicates, however, defendant did object, and pointedly so:
"Q. [MR. EASTON, Assistant Prosecuting Attorney] Who was supporting you? Who was providing your clothes and your meals and your ability to live?
"MR. RICARD: [Defense Attorney] Your honor, excuse me, I am going to object. I know it is Cross Examination but I wonder if we are not starting to get a little bit afield here and this question is immaterial and irrelevant as to what we are involved in here.
"THE COURT: I will overrule. I will permit it. There is a possible materiality. It is a fair question on Cross Examination.” | [
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M. J. Kelly, P. J.
Defendant pled guilty to two counts of armed robbery, MCLA 750.529; MSA 28.797, on March 12, 1976 and was sentenced to 6-1/2 to 15 years in prison. Defendant appeals by right and raises two allegations of error, one of which requires reversal.
Defendant argues that the plea proceeding was defective due to the trial judge’s failure to advise him of his right to question and confront his accusers. The following colloquy took place:
"The Court: Do you understand that you have compulsory process for obtaining witnesses in your behalf. You have the right to question them and cross examine them through your attorney.
"The Defendant: Yes, sir.”
We must hold that the plea was defective because the defendant was "not advised of his rights * * * to confront his accusers”, Guilty Plea Cases, 395 Mich 96, 121; 235 NW2d 132 (1975). Because of the fact that this was in reality a sentence bargain rather than a plea bargain (the trial judge entered into the bargaining session and there is no claim that the defendant got other than what was promised) we feel that a valid waiver of Boykin/ Jaworski rights should be presumed. However we also feel that any step in that direction should be taken by the Supreme Court and not by this Court.
The dissent implies that since one has no right to cross-examine his own witnesses, and this defendant was advised of his right to cross-examine witnesses, it necessarily connects such a right to the people’s witnesses, adverse witnesses, the defendant’s accusers. Such an interpretation is well within the realm of reason in the context of the plea bargaining, the presence, advice and participation of counsel; but falls short of literal compliance with People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972), and Guilty Plea Cases, supra, as well as GCR 1963, 785.7(g)(vi). Since a Jaworski defect cannot be corrected on remand this case must be reversed.
Reversed.
N. J. Kaufman, J., concurred.
Boykin v Alabama, 395 US 288; 89 S Ct 1709; 23 L Ed 2d 247 (1969), People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972). | [
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J. H. Gillis, P. J.
On October 19, 1974, Phyllis McPhail left her home at approximately 8:30 p.m. to go to the Hilton Market in the City of Pontiac. She took her six-month old son with her. When she failed to return, her husband conducted a search and found the automobile in the market parking lot with the keys in it and the child asleep. The police were called.
Two days later, Phyllis McPhail’s body was found floating in the Clinton River approximately one mile from the Hilton Market. Wounds were found in her back and chest.
Defendant was charged with the murder of Phyllis McPhail. A jury trial was commenced on May 12, 1975. On May 19, 1975, the jury returned a verdict of guilty of first-degree murder, MCLA 750.316; MSA 28.548. Defendant appeals as of right raising four issues. Additional facts, where necessary, will be related within the discussion of the issues pertinent thereto.
On October 24, 1974, subsequent to his arrest and after being given the Miranda warnings, defendant was interrogated by a detective from the Pontiac Police Department. The questioning took place near the location where the victim’s body was found. Defendant denied having any knowledge of the murder.
On October 28, 1974, defendant was again interrogated by the same detective. Defendant had called the detective to discuss with him alleged harassment by the guards at the jail. Defendant was again given the Miranda warnings and again denied knowledge of the murder; however, defendant did give the detective a detailed account of his whereabouts on the evening of the murder.
On January 29, 1975, subsequent to the preliminary examination, the detective, along with the assistant prosecutor handling the case, interviewed defendant at the jail. This meeting was held pursuant to defendant’s request. Defendant’s attorney was not informed of this meeting. Defendant was given the Miranda warnings after which he admitted knowledge of the alleged murder weapon and of the fact of a killing, although he denied being the perpetrator of the crime.
The trial judge conducted a Walker hearing and determined that the statements made during the course of the interviews would be admissible at trial. At trial, the statements were admitted into evidence. Defendant’s first claim is that the trial judge erred in admitting into evidence the statements made by defendant during the January 29th interview. It is defendant’s contention that statements made during an interview in which the •prosecutor participated in absence of defense counsel are inadmissible. Although there is a question as to whether the issue has been properly preserved for appeal, we will assume for argument’s sake that it has been preserved.
There is no question that but for the presence of the prosecuting attorney, the statements were admissible. People v Moore, 51 Mich App 48, 50-51; 214 NW2d 548 (1974), People v Jordan, 34 Mich App 360, 367-369; 191 NW2d 58 (1971), lv den, 386 Mich 776 (1971), cert den, 406 US 908; 92 S Ct 1616; 31 L Ed 2d 818 (1972).
Disciplinary Rule 7-104 of the Code of Professional Responsibility, Canons and Disciplinary Rules as adopted by the Michigan Supreme Court states:
"(A) During the course of his representation of a client-a lawyer shall not:
"(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.
"(2) Give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client.”
This rule is similar to Canon 9 of the Canons of Professional Ethics which provided in pertinent part:
"A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel.”
The Committee on Professional and Judicial Ethics of the Michigan State Bar interpreted Canon 9 as follows:
"On balance, we hold it improper for a prosecuting authority to interview a defendant in a criminal case without the knowledge and consent of his attorney of record.” Opinion 202, 46 Mich State B J, 29, 30 (May 1967).
There is no question in our minds that this interpretation applies to Disciplinary Rule 7-104. In case of doubt, we now take this opportunity to call to the attention of the prosecutors of this state as well as to the remainder of the state bar that it is improper and unethical for a prosecuting attorney to communicate with a criminal defendant without first notifying defense counsel and obtaining his consent regardless who initiates the communication.
Clearly, the prosecutor’s conduct in this case was improper. However, the question is not one of ethics but rather one of the admissibility of the evidence obtained during the course of the complained of interview. The trial judge determined that the statements were voluntarily given and defendant makes no claim that they were not. Rather, he contends that the meeting resulted in constitutional infringements. Although there is a dissenting minority, ethical violations such as the one in this case have not as of yet resulted in a suppression of evidence. See Judge (now Justice) Levin’s dissenting opinion in People v Patterson, 39 Mich App 467; 198 NW2d 175 (1972), and cases cited therein. We decline the invitation to join that minority.
Defendant’s second contention is that the trial judge committed reversible error in admitting into evidence, over objection, certain photographs of the victim. Defendant argues that because his defense was alibi and the nature of the wounds and the manner in which they were inflicted were stipulated at trial that the photographs had no probative value and served only to inflame and prejudice the jury.
It is well settled that the admission of photographic evidence is within the discretion of the trial judge. People v Eddington, 387 Mich 551; 198 NW2d 297 (1972). However, if the photographs serve no purpose other than to excite passion and prejudice in the minds of the jurors, then their admission is deemed to be error. People v Falkner, 389 Mich 682; 209 NW2d 193 (1973). There is no per se rule that stipulations negate admissibility. The prosecution has the burden of establishing each and every element of the charged offense beyond a reasonable doubt, and the jury must be instructed to consider each element regardless of stipulation. People v Peed, 393 Mich 342; 224 NW2d 867 (1975), cert den, 422 US 1044, 1048; 95 S Ct 2660, 2665; 45 L Ed 2d 696, 701 (1975). We have examined the photographs in this case. They depict the corpus delicti. .We find nothing gruesome or inflammatory about them. Defendant was not prejudiced.
In answering questions posed by the prosecutor during cross-examination, defendant’s chief alibi witness mentioned that he had submitted to a polygraph examination. Defendant claims reversible error.
Defendant is correct that generally evidence of polygraph examinations is inadmissible. People v Frechette, 380 Mich 64; 155 NW2d 830 (1968), People v Rodgers, 66 Mich App 658; 239 NW2d 701 (1976). However, for the following reasons, which are explained in People v Whitfield, 58 Mich App 585; 228 NW2d 475 (1975), we find no error in this case. Defense counsel did not object nor request a cautionary instruction. The reference to the polygraph examination was made by a defense witness and we do not find that the prosecutor purposely interjected the same. Additionally, the testimony in question was isolated and was not pursued nor emphasized.
Over objection by defense counsel, the trial judge gave the following instruction to the jury:
"Now, in this case the Defendant has not taken the stand. Under our law, the Defendant may take the stand or elect not to do so.
"When he does not take the stand in his own behalf, Counsel have no right to comment on that nor has the Court any right to comment about it, and you have no right to take that into consideration in any manner in arriving at your verdict.
"It is his right to take the stand or he may elect not to do so, as he shall choose, and you are not in any sense to construe that against him.”
Defendant’s final allegation is that in view of People v Hampton, 394 Mich 437; 231 NW2d 654 (1975), the trial judge committed reversible error. Hampton was decided after the trial in this case. In Hampton, our Supreme Court held:
"In a criminal case where the defendant elects not to testify, the court may instruct on the effect thereof, unless defense counsel (or the defendant acting in propria persona) expressly requests, before the Court instructs the jury, that no instruction be given on the subject in which event no instruction on the subject shall be given. In trials involving more than one defendant, the court shall give such an instruction upon the request of any defendant.” 394 Mich 437, 438. (Emphasis in original.)
Hampton established a new rule, and absent a clear statement by the Michigan Supreme Court we will not apply new rules retroactively. People v Daniels, 60 Mich App 458, 468; 231 NW2d 386 (1975) . At the time of trial, the trial judge did not err, People v Harris, 52 Mich App 739; 218 NW2d 150 (1974), lv den, 394 Mich 758 (1975), reh den, 395 Mich 908 (1975), but rather relied on a longstanding practice for which we cannot fault him, People v Garcia, 398 Mich 250; 247 NW2d 547 (1976) .
Affirmed.
D. E. Holbrook, Jr., J., concurred.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
385 Mich lxxx (1971), adopted October 4, 1971.
Specifically defendant cites US Const, Am VI and Am XIV. | [
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Danhof, C. J.
The plaintiff commenced this action in circuit court seeking to enforce certain Ohio judgments against the defendants. From summary judgment of $656,931.71 in the plaintiffs favor the defendants appeal as of right.
The plaintiffs complaint alleged that the Ohio judgments against the defendants remained unsatisfied and it prayed for entry of a judgment in this state. The defendants answered, simply denying each of the plaintiffs allegations, and asserting an affirmative defense that underlying the Ohio judgments were cognovit notes and that such notes are illegal in Michigan, hence, not entitled to full faith and credit.
Plaintiff responded with a motion for summary judgment on the grounds that (1) there was no genuine issue of material fact, and (2) the defendants failed to state a valid defense. GCR 1963, 117.2(2), 117.2(3). A proper affidavit supporting the plaintiff’s allegations was also filed. GCR 1963, 117.3.
Since denial of the essential elements of the plaintiff’s cause of action is a sufficient defense, plaintiff could not have prevailed on the theory that a valid defense was not stated. However, the defendants failed completely to respond to plaintiff’s motion on the remaining ground and no documents to support the defendants’ factual allegations are found in the court file as of the date of the hearing on the motion. The duty of the party opposing a motion for summary judgment based on sub-rule 117.2(3) is clear:
" 'Motions grounded upon sub-rule 117.2(3) must be supported by affidavits. The purpose of the affidavit is to assert the dispositive fact or facts upon which the moving party claims no genuine dispute exists. Although the Rule does not require opposing affidavits, it is the obligation of the opposing party to make a showing by opposing affidavits, testimony, depositions, admissions or documentary evidence on file that a genuine issue of disputed fact does exist as to the questioned element of the claim or defense. Durant v Stahlin, 375 Mich 628; 135 NW2d 392 (1965).’ ” Rizzo v Kretschmer, 389 Mich 363, 371; 207 NW2d 316 (1973).
The defendants having failed to respond with any of these documents, summary judgment in the absence of other considerations, would have been properly entered by the trial court on the pleadings. We do not feel, however, that summary judgment was the proper ultimate disposition of the case at the time it was granted. Summary judgment is a drastic and final remedy. The record shows that at the hearing on this motion, the defendants urged that they be given the opportunity to amend their answer so as to allege the additional defenses of illegality in the forum state, illegality in the state of judgment and denial of procedural due process in the state of judgment.
Because of the finality of summary judgment and because summary judgment may more reflect mispleading than actual justice, sub-rule 117.3 further provides:
"Each party shall be given opportunity to amend his pleadings as provided by Rule 118 unless the evidence then before the court shows amendment would not be justified.”
Rule 118 states, "[after 15 days] a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave shall be freely given when justice so requires”. If any of the additional defenses urged by the defendants at the hearing are potentially meritorious, we feel the trial court abused his discretion in proceeding to entry of summary judgment without allowing the defendants one pleading amendment. We therefore, proceed to a brief examination of these additional defenses.
The defendants first argue that Michigan courts could not, as a matter of law, honor the cognovit notes underlying the Ohio judgments. They additionally assert that such notes were or should have been equally repugnant to Ohio law and that the Ohio courts erred in entry of judgment. A judgment entered by a court of competent jurisdiction is not subject to collateral attack against the underlying obligation. Fauntleroy v Lum, 210 US 230; 28 S Ct 641; 52 L Ed 1039 (1908). The underlying obligation has been extinguished and replaced by the judgment. Union Guardian Trust Co v Rood, 308 Mich 168, 171; 13 NW2d 248 (1944). It is therefore clear that the defendants may not assert illegality of the cognovit notes in either Michigan or Ohio.
The only avenue of attack upon such a judgment available to the defendants is to demonstrate to the court’s satisfaction that the judgment was entered by a court without proper, competent jurisdiction:
"A judgment is conclusive as to all the media concludendi (United States v California & O. Land Co., 192 U.S. 355; 24 Sup. Ct. Rep. 266; 48 L ed 476 [1904]); and it needs no authority to show that it cannot be impeached either in or out of the state by showing that it was based upon a mistake of law. Of course, a want of jurisdiction over either the person or the subject-matter might be shown.” Fauntleroy v Lum, supra, at 237.
It appears that defendants have raised just such a defense in their third argument. It is possible to demonstrate, we believe, that the particular notes in 'question and procedure employed in entry of judgment, were so repugnant to due process as to deprive the rendering court of jurisdiction. See Atlas Credit Corp v Ezrine, 25 NY2d 219; 303 NYS2d 382; 250 NE2d 474 (1969).
We make no judgment on the merits of the defendant’s case. We merely observe that defendants sought leave to amend their answer to include a potentially meritorious defense. It was, therefore, error for the trial court to enter summary judgment without allowing such amendment.
The matter is remanded to the circuit court for entry of an order allowing defendants a reasonable time in which to amend their answer to raise a valid defense. Should defendants fail to so amend, summary judgment may properly be entered against them. Nothing herein shall be construed to prohibit a motion for summary judgment on the amended pleadings.
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R. B. Burns, J.
Plaintiff sued for the return of a deposit of $3,000 made to the defendant realty company toward the purchase of real estate. Defendant counterclaimed for its full commission of $10,200. The trial court granted the defendant a summary judgment for the full amount of its counterclaim. We reverse and remand for trial on the merits.
The essential facts taken from the trial judge’s opinion are as follows:
Plaintiff sought to purchase property located in East Detroit. On April 19, 1974 he signed a purchase agreement calling for the purchase of the aforesaid property and delivered a deposit check of $3,000 to defendant Arden Company. Plaintiff alleged that on April 29, 1974 the Arden Company advised the plaintiff that his offer had been rejected by the seller. He contends that he then withdrew his offer and demanded the return of his deposit. On May 3, 1974 the defendant advised plaintiff that his offer had been accepted. Plaintiff refused to close and again demanded the return of his deposit which was refused.
Plaintiff instituted the present suit. The defend ant denied the event of April 29, 1974 and counterclaimed for its full commission, $10,200.
It is the defendant’s contention that as a matter of law the offer to purchase submitted by the plaintiff was irrevocable, that it was supported by good and legal consideration, and that it remained open for its entire term.
The irrevocability clause is as follows:
"In consideration of the Broker’s effort to obtain the Seller’s approval, it is understood that this offer is irrevocable for 15 days from the date hereof, and if not accepted by the Seller within that time, the deposit shall be returned forthwith to the Purchaser.”
The trial court found:
"The main issue upon which a decision in this case turns is whether or not the aforesaid clause providing for irrevocability has adequate consideration to support it. If it did it is obvious that the Plaintiff could not revoke the Offer within the fifteen (15) day period. 1 Williston on Contracts, Sec. 61; 17 Am. Jr. Contracts, Sec. 36, page 375.
"Obviously express promises and/or considerations in the Brokerage Contract run from the Seller to the Broker. Therefore, if there is any consideration running from the purchaser to the Broker there must be promises of an implied nature existing in the relationship between these two parties. The Defendant Arden Company contends there is the necessary consideration stemming from the preparation of the Offer to Purchase and from its effort to obtain the Sellers approval of the Offer. The Court does not agree with this contention. These duties are duties which stem from the brokerage contract and place no onus on the purchaser. That being the case then, are there any implied promises from Broker to purchaser constituting the necessary consideration to support the irrevocability provision? It is almost axiomatic that the mere recitation of consideration creates only a rebuttable presumption that consid eration did in fact exist. However, it is this Court’s opinion that by virtue of the clause in question in this Offer to Purchase the Broker was barred from seeking other purchasers for the full period of fifteen (15) days which the Offer was to be held open. It is this Court’s further opinion that the detriment thus suffered by the Broker was adequate legal consideration and that it does in fact constitute consideration supporting the irrevocability clause contained in the Offer to Purchase.”
We disagree with the trial judge. The defendant was bound by its obligations to the seller to submit any offers it received to the seller irrespective of the irrevocability clause in its contract with the plaintiff. It would have been a breach of its duty and obligation to the seller not to have submitted any other offer, even within the 15-day period. As stated in Lister v Sakwinski, 206 Mich 121, 125; 172 NW 397, 398 (1919):
"When plaintiff accepted employment from Mr. La Bounty as his broker the relations of principal and agent were established. Plaintiff’s duty was to his principal. * * * The services were performed for Mr. La Bounty, not for the defendants. When plaintiff accepted employment as Mr. La Bounty’s broker he was bound to act for Mr. La Bounty alone, using his utmost good faith in his behalf. ” (Emphasis supplied.)
Under common law, a broker could not act as an agent for both parties to the transaction unless its agency relationships were fully disclosed to both principals; this rule has been codified as MCLA 451.213(d); MSA 19.803(d). As the defendant broker has made no showing that the seller was informed of the broker’s potentially conflicting roles, to the extent that it promised a performance to the purchaser, that promise was void as illegal. An unenforceable promise cannot constitute consideration.
Defendant’s claim that it was contractually bound to work exclusively in plaintiffs behalf for the 15-day period fails because any exclusive agency contract with the buyer would be invalid and unenforceable as against public policy. Rule 35 of the Michigan Department of Licensing and Regulation, governing real estate brokers and salesmen, 1973 AACS, R 338.2735, states:
"A broker or salesman, upon receipt of a written offer to purchase, shall promptly tender a written offer to purchase to the seller.” (Emphasis supplied.)
We conclude that there was a failure of consideration to support the irrevocability clause at issue. The cause is remanded to the trial court for determination of the issue as to the rejection of the original offer and withdrawal of such offer.
Reversed and remanded. Costs to plaintiff. | [
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Per Curiam.
Defendant was convicted on his plea of guilty to the charge of receiving and concealing stolen property, contrary to MCLA 750.535; MSA 28.803. He was sentenced to prison and appeals by right.
Defendant’s first claim on appeal was decided adversely to him in People v Milton, 393 Mich 234; 224 NW2d 266 (1974).
Next, defendant challenges the use of two prior convictions listed in the presentence report for purposes of imposing sentence under the holdings of the United States Supreme Court in United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972), and the Michigan Supreme Court in People v Moore, 391 Mich 426; 216 NW2d 770 (1974), claiming that he was not informed of his right to, nor provided with, assistance of counsel when the two convictions in question were obtained. At the sentencing defense counsel informed the judge that although he had seen the lengthy presentence report he had not had time to review it with his client to determine the accuracy of the list of prior convictions noted therein and "whether or not all of the procedural safeguards were provided”. This prompted the sentencing judge to inquire into the prior convictions and defendant acknowledged a total of seven, including six felonies, whereupon the judge proceeded to impose sentence.
After the sentencing defendant obtained an order from this Court directing the sentencing judge to conduct a Tucker hearing to inquire into the validity of two of the prior convictions and determine whether resentencing was necessary. At the close of the Tucker hearing the trial judge ruled that one of the convictions was validly obtained, that the other conviction had not been considered in imposing sentence, and that therefore resentencing was unnecessary. Defendant now contends that the trial judge’s determinations at the Tucker hearing were erroneous, and that resentencing is required under Tucker and Moore. We will consider each conviction separately.
With regard to the first, a Michigan breaking and entering conviction, the sentencing judge found at the Tucker hearing that defendant had validly waived his right to assistance of counsel. This finding was based upon the affidavit of Kalamazoo County Circuit Judge Raymond W. Fox, who presided at defendant’s arraignments on the breaking and entering charge in July of 1963. The affidavit states that the inside cover of the court file contained Judge Fox’s handwritten notes, which read as follows: (a) "July 22, 1963 — Information read — Wants no attorney, guilty refused.” (b) "July 29, 1963 — Amended Information read— Wants no attorney, Plea: Guilty — 2nd Count — Ac cepted — Bail, $1,000.00.” The obvious inference from these notations is that defendant was informed of his right to counsel, but declined to exercise that right, and we cannot say that the sentencing judge’s finding at the Tucker hearing that defendant waived his right to counsel was erroneous. Although Judge Fox’s affidavit is not a "photocop[y] of records establishing the constitutional validity of the prior conviction”, Moore, supra at 441, we do not read Moore to say that a judge’s affidavit, based on notations written on court records in his own hand, may not be used to establish the constitutional validity of the prior conviction. When a judge, acting in his official capacity as a member of the judiciary, executes a sworn affidavit based upon notations in his own handwriting contained in the court record, such an affidavit is the functional equivalent of the record itself.
Defendant also claims that the sentencing judge erred in considering his 1962 Idaho vagrancy conviction. Since the Idaho authorities did not respond to defendant’s request for copies of the records of the sentencing court within the reasonable time indicated in Moore, supra at 441, we are constrained to agree with defendant that the prosecutor failed to carry the burden that then fell to him of establishing the constitutional validity of the conviction. This does not end our inquiry, however. Under Moore, supra, defendant merely met the procedural requirements that must be satisfied before a defendant is entitled to a Tucker hearing by presenting evidence that the Idaho authorities had failed to respond to his request for records. In support of his claim that resentencing is required, however, defendant cites only the following exchange during the sentencing:
"THE COURT: And in October of 1962 at Hillview, Idaho, you were convicted of vagrancy?
"DEFENDANT: Yes, sir.
"THE COURT: I didn’t know they did that any more.
"DEFENDANT: Vagrancy for investigation.”
At the Tucker hearing the sentencing judge stated that "no consideration was given to the vagrancy conviction, although it was recited, and it had no effect upon the sentence, and, therefore, is not a basis for granting a resentencing, because there is no likelihood that there would be a different sentence on that point”.
In Moore, supra, the Supreme Court declined to apply a harmless error rule to defendant’s Tucker claim because "in most cases a judge can more readily resentence a convicted person than determine whether whatever consideration was given an invalid conviction at sentencing was harmless”. Id. 439. The court went on to note that "a determination of harmlessness would invite further appeal”. Id. In the instant case, however, the sentencing judge who presided at the Tucker hearing did not hold that his reliance on the 1962 vagrancy conviction was harmless error, but rather disclaimed any reliance whatsoever upon the vagrancy conviction in imposing sentence. His statement at sentencing that he "didn’t know they did that any more” lends credence to that disclaimer. Certainly defendant’s six validly obtained felony convictions provided an ample basis for imposing the maximum statutory penalty. "[M]ore importantly, the United States Supreme Court has indicated that the question is whether the sentence !might have been different’ if the sentencing judge had known that the earlier convictions had been unconstitutionally obtained.” Moore, supra at 439. Here the sentencing judge affirmatively stated at the Tucker hearing not only that he did not rely on the vagrancy conviction in imposing sentence, but also that "there is no likelihood that there would be a different sentence on that point”.
Given that the record of the sentencing contains support for the sentencing judge’s disclaimer of reliance on the vagrancy conviction, and given that there is no likelihood that a different sentence might be imposed were we to remand for resentencing, we decline to order a resentencing in this case. The record does not make it "evident that the sentencing judge gave specific consideration” to defendant’s previous invalid conviction before imposing sentence, Tucker, supra at 447; Moore, supra at 440, and there is therefore no possibility that the sentence ’"might have been different’ if the sentencing judge had known that the earlier convictions had been unconstitutionally obtained”. Moore, supra at 439, quoting Tucker, supra at 448. See People v Ford, 47 Mich App 420; 209 NW2d 507 (1973).
Affirmed.
The sentencing judge later indicated some confusion on this point when he found that defendant was represented by counsel. His confusion is understandable, since defendant was represented by counsel at the sentencing on the 1963 breaking and entering charge to which he pleaded guilty, at which time defendant was also sentenced on a forgery charge. In view of our holding with respect to the adequacy of the trial judge’s affidavit, however, we deem the sentencing judge’s apparent confusion at the Tucker hearing unimportant. | [
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Bronson, P. J.
Defendant was convicted by a jury of assault with intent to do great bodily harm less than murder. MCLA 750.84; MSA 28.279. The charge arose out of an incident occurring in front of the Redmill Bar on Woodward Avenue in Highland Park on September 11, 1974. Defendant admittedly stabbed the victim, a Mr. Rodgers, with a knife. Defendant claimed, however, that he had been defending himself from a knife attack on him by Rodgers.
Defendant received a prison sentence and now appeals raising numerous issues. We find that none require reversal, though four merit discussion.
I.
Defendant first claims error with respect to the trial court’s finding that the prosecutor had exercised due diligence in attempting to locate and produce an endorsed res gestae witness. Produc tion of the witness was excused and the prosecutor was permitted to introduce the preliminary examination testimony of that witness. See People v McIntosh, 389 Mich 82; 204 NW2d 135 (1973), People v Harringer, 65 Mich App 649; 237 NW2d 598 (1975).
The witness in question was a Miss Ella Austin, apparently the only known independent witness to the beginnings of the altercation between defendant and Mr. Rodgers. Austin had testified at the preliminary examination and had* later been endorsed as a res gestae witness. Her testimony had been somewhat corroborative of what proved to be the defendant’s version of the incident, and defense counsel demanded her production when she did not appear on the first day of defendant’s trial, a Wednesday.
It is unnecessary to recite all efforts made to locate Miss Austin. Suffice it to say that the efforts made prior to and during the trial were as intensive as in any reported case. When defendant’s trial was adjourned for the weekend on Thursday, the second day of trial, his attorney agreed with the trial judge that every possible effort had been made to produce Miss Austin.
As of Thursday evening, the prosecutor had not yet rested, and the police officer in charge of the case, a Detective Quinn, was instructed to continue his efforts to locate Miss Austin over the weekend..
On Monday morning Detective Quinn again testified as to Austin’s continued absence from the trial. He stated that she had been in the custody of the police on the previous Friday evening, having been arrested and charged with loitering. Detective Quinn spoke to her and was told that she had been out of town for the previous three or four weeks. Quinn served the subpoena on her and advised her to show up Monday to testify or she would be in contempt of court. She told him that she would definitely be there as she didn’t want any more trouble than she already had.
A bench warrant was issued on Monday for Miss Austin’s arrest. Detective Quinn attempted one final time to locate Miss Austin during the noon recess by going to the Redmill Bar and to her house, the only places she was known to frequent, but met with no success. The judge then made a finding of due diligence, held that the witness was unavailable, and ruled that the preliminary examination testimony of Miss Austin could be read to the jury.
As we review defendant’s claim that due diligence was not shown by the prosecutor’s efforts to produce this witness, we keep in mind that this question is a matter primarily within the discretion of the trial court. A finding of due diligence will be overturned on appeal only where an abuse of discretion is found. People v Harringer, supra, People v Russell, 27 Mich App 654; 183 NW2d 845 (1970).
In view of the efforts made by the prosecution to locate and produce Miss Austin, defendant’s only serious contention on the question of due diligence relates to Miss Austin’s arrest during the trial. Defendant argues that a failure of due diligence is shown by the fact that the witness was in custody at one point during defendant’s trial and yet was not produced to testify. Defendant asserts that the witness, upon coming into the custody of the police, should either have been detained in jail or required to put up a bond in order to guarantee her presence at trial pursuant to the material witness statute, MCLA 767.35; MSA 28.975.
That statute permits a court of record to require a material witness in a criminal case to "enter into a recognizance with such sureties and in such amounts as the court may determine for his appearance at any examination or trial of said cause”, or, failing to do so, to be committed to jail. By its own terms, the statute may be invoked only when "there is danger of the loss of testimony of such witness unless he be required to furnish bail or be committed”.
Research reveals that this statute has been the subject of little appellate judicial comment. We find no case in which a failure to make use of this procedure in order to detain a res gestae witness has been found to result in a failure of due diligence on the part of the prosecutor.
We do find that bail is properly ordered under this statute only when there is reason to believe that the witness will not be available when her testimony might become necessary. In re Rankin, 330 Mich 91; 47 NW2d 28 (1951). Such was not the case here.
When the subpoena was served on this witness while she was in custody, the police had no reason to believe that she would not appear to testify on the following Monday. She had appeared voluntarily at the preliminary examination and appeared to be a friend of the defendant’s. She gave a reasonable explanation for her former unavailability for service and said she would appear to testify. There was no reason to believe that she had been intentionally avoiding service or that she had any reason not to want to testify at defendant’s trial. Under these circumstances, we cannot hold that the failure of the police to seek to detain her until after her testimony at defendant’s trial amounted to a failure of due diligence.
We conclude that the trial court’s ruling that the prosecutor had used due diligence in attempting to secure the presence of this witness at trial was not an abuse of discretion.
II.
Defendant argues that misconduct by the prosecutor at trial, reflected in his cross-examination of defendant and in his closing arguments, was so prejudicial as to have denied defendant a fair trial. No objections were made at trial to the questioning or the arguments which are now the subject of these claims of error. Consequently, this Court will reverse only if the cross-examination resulted in a miscarriage of justice, People v Stoudemire, 65 Mich App 664, 668; 238 NW2d 365 (1975), or if the prosecutor’s argument was so prejudicial that appropriate cautionary instructions would not have cured any prejudice. People v Hall, 396 Mich 650, 655-656; 242 NW2d 377 (1976).
Defendant asserts that reversal of his conviction is required by the Supreme Court decision in People v Johnson, 393 Mich 488; 227 NW2d 523 (1975). In that case the defendant’s conviction for carrying a concealed weapon was reversed because of prejudicially and reversibly erroneous cross-examination of the defendant and prosecutorial argument. The prosecutor had cross-examined the defendant extensively, and nearly exclusively, on his background and his alleged predisposition to criminal activity. The cross-examination made reference to defendant’s employment and education record, his marital status, means for supporting his children, and financial history. The prosecutor then argued to the jury that they could consider in deciding whether the defendant was guilty of the alleged C. C. W., that he was "a man with two cents in his pocket and he hasn’t worked for a long time”. Johnson, supra, p 496.
The Court held that the argument and the cross-examination leading up to it were erroneous and prejudicial since defendant’s poverty and unemployment were probative neither of his guilt or innocence nor of his tendency to lie or tell the truth.
We have carefully reviewed the transcript of defendant’s trial and we do not find the abuses which required reversal in Johnson.
An examination of some 40 pages of cross-examination of the defendant reveals that only some 3-1/2 pages concerned defendant’s background and character. The prosecutor elicited testimony from the defendant indicating that defendant was married and had three children but was separated from his wife, did not know where his wife and children were, and did not contribute to their support. Defendant was employed part-time at a book store, earning up to $50 a week, and yet regularly spent time and money in the Redmill Bar.
In his closing argument, the prosecutor referred to this testimony as being a permissible source of inferences as to defendant’s character and credibility. As noted, no objections were made to any of this cross-examination or this argument, nor were cautionary instructions requested.
Johnson does not require reversal of this defendant’s conviction. The cross-examination into this defendant’s background was not nearly as long as that which occurred in Johnson, and, more importantly, the purpose for which the examination of the defendant’s background was offered, as re- fleeted by the prosecutor’s argument, was solely for purposes of examining his character and credibility, as opposed to Johnson where the purpose was shown to be to prove guilt of the charged offense.
Johnson cannot be read as forbidding all cross-examination of a criminal defendant as to his background and character. To the contrary, the Court cited approvingly the general rule as stated in People v Dye, 356 Mich 271, 277; 96 NW2d 788 (1959), to the effect that a trial court has broad discretion in regulating this type of inquiry upon cross-examination. In Dye, the Court found no abuse of discretion where the prosecutor had cross-examined the defendant about matters pertaining to the defendant’s varied marital life, his ownership of property, his professional experience and training, and numerous other related matters.
People v Dye reflects the underlying rule governing this aspect of cross-examination, well stated in 1 Gillespie, Michigan Criminal Law and Practice (2d ed), § 401, p 486:
"It is the well-settled rule that the previous life and character of a witness may be inquired into to elicit facts which may aid the jury in determining what credence they will attach to his testimony, yet, it is the duty of courts to keep such examination within reasonable bounds.”
See also, People v Gotshall, 123 Mich 474; 82 NW 274 (1900).
Defendant’s reliance on People v Hammond, 394 Mich 627; 232 NW2d 174 (1975), is unfounded. Each of the two opinions in that case was signed by only two justices. Moreover, in that case, the defendant had not taken the stand. The issue presented was whether the prosecutor’s cross-ex- animation of defendant’s wife had disparaged the character of the defendant.
We conclude that the trial judge did not abuse his discretion in permitting this cross-examination and that the prosecutor’s reference to that testimony as reflecting on defendant’s credibility was not erroneous. The inquiry into defendant’s background and character was brief, the use made thereof was proper, and defendant was not unduly prejudiced.
Defendant makes numerous other claims with respect to various parts of the prosecutor’s closing argument. These claims of prejudicial error need not be discussed in detail. No objection was made to any of the argument and we are not convinced that a cautionary instruction given on request would not have cured any possible prejudice. People v Hall, supra. Consequently, we find no reversible error.
III.
Defendant next claims that cross-examination of defendant by the prosecutor resulted in the violation of the rule set out in People v Bobo, 390 Mich 355; 212 NW2d 190 (1973), and in People v Perez, 66 Mich App 685; 239 NW2d 432 (1976). These cases enunciate the rule that the silence of an accused in the face of questioning may not be used against him at trial, subject to the exception that a defendant’s refusal to speak during interrogation is admissible to contradict assertions that a statement was made. People v Graham, 386 Mich 452; 192 NW2d 255 (1971).
In the course of the prosecutor’s case in chief, a handwritten statement which defendant had given to police officers in the course of in-custody ques tioning was introduced into evidence. The officers testified that defendant had first made an oral statement, then had put most of the oral statement in writing. The written statement was short and read as follows:
"The named person pulled a knife on me, chased me around his car and another car. Someone handed me a knife and I continued to run from this man with a knife in his hand until he started to catch up with me. I then turned around and stabbed him in the shoulder (once!) and then I ran back up near the bar where whoever gave me the knife took it back.”
Defendant on direct examination admitted making these statements. He also gave his version of the incident for which he was on trial. Previous testimony had indicated that the complainant had been cut in the face as well as in the shoulder. Defendant explained that at one point during the chase, the complainant had backed him up against a wall and lunged at him. Defendant said he had slashed out then to protect himself, cutting the complainant’s face.
Previous testimony had also indicated that it was the defendant, not the complainant, who was doing the chasing. Defendant testified that as he was being chased, he sidestepped. The complainant ran on by but kept coming back after him except when he, the defendant, defended himself by running at the complainant. When defendant finally tried to get away, the complainant again chased him, caught him, and slashed at him with his knife. Defendant then stabbed the complainant in the shoulder.
Defendant stated that he then walked back to the bar, returned the knife to its owner, and went home to change his clothes before returning to the bar.
The prosecutor cross-examined defendant about his trial testimony and about his written statement. Defendant’s claim that portions of the cross-examination resulted in a violation of Bobo because defendant’s silence was used against him is premised on the phrasing of several of the prosecutor’s questions, which asked why defendant didn’t say to the officers the things he testified to at trial. Defendant argues that such questions amounted to cross-examination as to nonutterances and constituted a violation of defendant’s right to remain silent. Perez, supra, at 689.
The flaw in defendant’s argument is that his written statement and his trial testimony were inconsistent. When defendant was asked by the prosecutor why he hadn’t told the police officers about the first stabbing when he had been pinned against a wall or that he had been chasing the complainant at some points during the altercation, the purpose and effect of those questions were not to examine why defendant had not given complete details of the incident to the police. Rather, the questions were designed to explore why defendant had initially told the police officers, in effect, that he had been continuously chased by the complainant until caught, when he was forced to defend himself, but had testified at trial that there had been several breaks in the running, that the stabbings had occurred on two separate occasions and that he had been chasing the complainant at least part of the time.
The prosecutor’s closing argument followed this same line of searching for inconsistencies, as he argued: "He [the defendant] never in this statement ever said anything at all similar to what he testified to.”
After careful examination of the record, we conclude that the cross-examination and closing argument did not constitute a comment on silence by the defendant during custodial interrogation, but rather were directed at inconsistencies between the statement actually made and the defendant’s trial testimony. The cross-examination and argument were thus not improper. People v Gant, 55 Mich App 510; 222 NW2d 784 (1974), Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971).
IV.
Defendant raises another issue concerning an alleged res gestae witness. Defendant asserts that one Danny Moore was an eyewitness to the altercation which resulted in defendant’s arrest and conviction, but was not endorsed or produced by the prosecutor. The record, however, contains no mention of any such person, much less any evidence relevant to a determination of such questions as whether he was a res gestae witness, could have been endorsed and produced, or any other relevant question. Defendant’s failure to move in the trial court for a new trial pursuant to People v Robinson, 390 Mich 629; 213 NW2d 106 (1973), precludes appellate review of this claimed error.
Defendant’s conviction is affirmed.
See, also, People v Harringer, supra, p 651. (Bail ordered initially where witness had no permanent place of residence and had received threatening phone calls.) | [
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Per Curiam.
Defendant appeals his jury-based conviction on a charge of first-degree murder, MCLA 750.316; MSA 28.548, for which he received a sentence of life imprisonment. In urging reversal, he directs our attention to three aspects of the proceedings below.
I.
Initially, defendant asserts that the following excerpt from the cross-examination of defendant at trial discloses prosecutorial error in violation of MCLA 600.1436; MSA 27A.1436, and People v Hall, 391 Mich 175; 215 NW2d 166 (1974):
"Q [Mr. Easton, Assistant Prosecuting Attorney]: Didn’t you tell the doctor this towards the end of the Brevitol statement: 'The guy didn’t want to give me any money I wanted so I just shot him’?
"A [defendant]: I guess I did say it if it’s in the statement.
"Q Then you did carry out a plan. You didn’t get what you wanted and you knew you had a gun with you and you just shot him, is that right?
"A No.
"Q It’s in the statement.
"A So. There’s a lot of lies in the statement.
"Q Now, your (sic) saying that that might be a lie too?
"A I’m not saying it might be; I’m saying it is.
"Q When do we know that your [sic] telling the truth and when your [sic] lying? We just have to take your * * * . Do you believe in God?
"THE COURT: Just a minute please, strike that question. Disregard that question, members of the jury. Are you aware that you are under oath?
"THE WITNESS [defendant]: Yes.”
In Hall, supra, the Supreme Court held that asking a defendant whether he believes in a supreme being constitutes reversible error even absent objection:
"If we were, on a case by case basis, to evaluate the entire record to determine if prejudice or manifest injustice occurred therein because of this type of question, we would emasculate our statute and the legislative intent behind it. Our statute clearly states that an accused is entitled to be tried and convicted without the question of his religious opinions ever being put in front of the judge or jury for their consideration. Whether the defendant hesitates, or unhesitatingly responds negatively or positively, or if he should quite properly refuse to respond, he still cannot avoid the risk of stimulating an offensively prejudicial reaction in some quarter of the jury. This Court feels that it is inappropriate for it to take it upon itself to determine whether or not such prejudicial reaction did in fact occur, when our statute clearly attempts to foreclose such review by forbidding the asking of the prejudicial question itself. A defendant is entitled to a trial free of such improper questions. Once the question is asked, this is no longer possible. A new trial is mandated.” 391 Mich at 182-183. (Emphasis added.)
In contrast to Hall, the swift action of the judge below differentiates the present case from the facts in Hall and from the various hypothesized responses the Supreme Court believed a defendant might display when asked about a belief in God. Here the trial judge intervened immediately, ordered the question stricken, directed the jury to disregard it and inquired whether the defendant realized he was still under oath. Hence, the defendant had no time to mull over the prosecutor’s question, to answer it or to refuse to respond. By asking defendant whether he was aware that his testimony was still under oath, the judge on one hand impressed on defendant the sense of his obligation to be truthful and on the other diverted the jury’s focus from an improper to a proper line of inquiry. We believe, therefore, that the judge’s sua sponte response effectively dissipated "the risk of stimulating an offensively prejudicial reaction in some quarter of the jury”. Id.
In addition to these factual distinctions, other considerations militate against a strict application of Hall. For one, Hall was decided on February 27, 1974, whereas the present case came to trial on January 8, 1975. Thus, there was ample time for the Hall rule to come to the attention of diligent counsel who could, if so disposed, move for a mistrial. For another, we are troubled by the practical result of Hall which gives defendants two bites at the apple. They can wait to see if the jury renders an innocent verdict; and if it does not, they can demand retrial under Hall. Finally, we note that not all questions concerning a belief in God mandate reversal. Rather, the facts must be examined in context. See People v Jenness, 5 Mich 305 (1858), People v Booth, 58 Mich App 466; 228 NW2d 425 (1975), and People v Bouchee, 62 Mich App 132; 233 NW2d 503 (1975).
Regarding this final point, People v Jenness, supra, cited approvingly in Hall, is particularly instructive. Jenness was an incest prosecution in which the witness, defendant’s niece and alleged paramour, was examined by defense counsel on voir dire regarding her religious beliefs. She testified that she held an unflinching devotion to a supreme being. On later cross-examination counsel for defendant attempted to impeach the witness by asking whether she had ever disavowed her belief in a deity. An objection was taken by the prosecution and sustained by the court. However, the decision does not reveal whether the witness answered the question or whether a curative instruction issued from the bench. At any rate, the trial proceeded to its resolution and defendant was found guilty.
Nowhere in Jenness, however, is it suggested that having heard an improper question the jury thereby was deprived of its powers of reason, overtaken by feelings of prejudice toward the witness and, hence, unable to accord her testimony fair weight. An objection to the question by the prosecution apparently sufficed to correct the error.
Accordingly, we see no reason why in the present case an objection initiated by the judge, followed promptly by a cautionary instruction, should be any less effective a remedy.
Having said all of this, we nonetheless reluc tantly reverse, compelled as we are by the clear, albeit gratuitous, dicta in Hall. However, we urge the Supreme Court to reconsider whether it believes Hall should properly apply to facts such as these. If ever a judge acted speedily to correct any possible error that may have arisen, this judge did. While we appreciate the cherished value that Hall upholds, we would not by a wooden application of Hall bestow a windfall on the defendant because of an unanswered question that slipped past the lips of a seemingly exasperated prosecutor in the middle of a month long trial. Especially is this so where the trial court did everything within its power, short of declaring a mistrial, to cabin the error before it could spread.
II.
In light of our disposition of this case we need not respond to defendant’s second assignment of error since it is unlikely to recur on retrial. Such is not the case, however, regarding defendant’s arguments on the admissibility of various confessions.
On June 3, 1974, in a basement hallway of Recorder’s Court, defendant, while under arrest for an unrelated crime and in the custody of two sergeants, grabbed at one of the officers’ guns and a struggle ensued. Officer Harold Upshaw, hearing the scuffle, rushed from the adjacent lunch room into the hallway and handcuffed defendant, but not before defendant had been dealt two blows over the head with a flashlight by one of the other policemen.
After having defendant photographed, Officer Upshaw placed defendant in an empty waiting cell, removed the manaclés, and instructed defendant to wash his hands and face in the sink at the opposite end of the cell. Officer Upshaw also told defendant to bring back a wet paper towel to the cell door and defendant did so. The officer took the towel and leaning through the cell window cleaned away some blood from the back of defendant’s head. The two then began a conversation on a number of inconsequential topics. During their talk defendant took the paper towel, wadded it into a ball and began shooting baskets at the sink at the far end of the cell. While the men talked, defendant would repeatedly retrieve the wad and shoot more baskets at the sink.
After a few minutes, defendant asked Officer Upshaw if he wanted to make some money, and the officer asked how. Defendant said that there was money on his head, about $7,000, and that he shot someone in Dearborn.
Officer Upshaw sought the victim’s name, but defendant would not reveal it unless Officer Upshaw agreed to help defendant’s girlfriend share in the reward. The officer consented. Before divulging the name, however, defendant asked Officer Upshaw how a police officer could claim a reward; the policeman’s response was that a Detroit officer could claim the reward for a crime committed in Dearborn, so there was no problem. At last, defendant told Officer Upshaw the name of the person he shot. The officer did not ask how the shooting took place and defendant offered no additional details. At no time were Miranda warnings given, however.
After learning the shooting victim’s name, Officer Upshaw contacted the Dearborn Police who sent two detectives to interview defendant that same day. Defendant was advised of his Miranda rights and he signed a waiver form. Again defendant raised the question of the reward and the detectives agreed to look into it. Defendant then acknowledged that he was present at the shooting and gave additional details short of implicating himself.
Two days later the detectives, accompanied by a Wayne County Prosecutor and a stenographer, met again with defendant. Miranda warnings were given and duly waived in writing. As before, defendant initiated talk of the reward; he agreed to confess fully if his girlfriend would be permitted to claim the reward. Defendant was permitted to call his girlfriend and was provided with the phone number of the organization offering the reward. After the call, he expressed a willingness to talk, stated that he was about to tell the truth and then outlined the details of the grisly murder in which he admitted shooting the victim five or six times in the face.
Defendant raises two appellate arguments concerning the admissibility of the confessions. First, he argues that the initial revelation to Officer Upshaw made without benefit of Miranda warnings should have been suppressed along with its poisonous fruit, namely, the two later confessions. Second, he contends that the confessions were involuntary because they were induced by promises of reward money for defendant’s girlfriend.
Prior to trial the lower court held an extensive Walker hearing and concluded that the statements were voluntary and thus admissible. The judge ruled that since the inculpatory statements to Officer Upshaw had been volunteered, no Miranda warnings were necessary. Regarding the alleged promises, the judge questioned the defendant about his familiarity with the reward program. The defendant indicated that he was well aware of it, had followed closely every account of it in the papers and appreciated the difference between making a claim for the reward and actually receiving it. Defendant readily agreed that to receive the reward, a conviction is required. The judge found that the promises involved only assisting defendant’s female friend in making a claim for the reward and that the officers had fulfilled their promises.
While this Court reviews the entire record to determine whether the judge’s ruling at the Walker hearing was correct, People v Kyllonen, 66 Mich App 467; 239 NW2d 410 (1976), we do not upset the lower court’s ruling unless it is "clearly erroneous”. People v Kelly, 30 Mich App 154; 186 NW2d 72 (1971), People v Szczytko, 40 Mich App 161; 198 NW2d 740 (1972), affirmed 390 Mich 278; 212 NW2d 211 (1973).
At the Walker hearing, Officer Upshaw testified that during his 6-1/2 years with the police department he had often been approached by prisoners with offers of money; that he had no reason to believe or disbelieve defendant’s story; that at the time he agreed to aid defendant’s girlfriend in obtaining the reward, he did not take defendant seriously; and that he had no recollection of this particular shooting until after defendant revealed the name of the victim.
Taking into account the "totality of the circumstances”, People v Reed, 393 Mich 342, 357; 224 NW2d 867 (1975), cert den 422 US 1044; 95 S Ct 2660; 45 L Ed 2d 696 (1975), we hold that Officer Upshaw was not obliged to give Miranda warnings to defendant.
The bulk of defendant’s statements, save the identity of the shooting victim, was purely voluntary and thus beyond the purview of Miranda, People v Moore, 51 Mich App 48; 214 NW2d 548 (1974), People v Griner, 30 Mich App 612; 186 NW2d 800 (1971), People v McKee, 28 Mich App 610; 184 NW2d 750 (1970).
With regard to the officer’s question concerning the identity of the victim and his comment about the reward, we stress the context in which they arose: while shooting baskets with a wadded paper towel at the sink in the far end of the cell, defendant casually initiated a conversation about an offer of money, about shooting someone in Dearborn and about a posted reward; Officer Upshaw, having heard many such offers from prisoners in the past and having no particular reason to believe defendant’s story, went along with defendant by probing a bit further. Since Officer Upshaw was a Detroit policeman, it is altogether plausible that information regarding a shooting in Dearborn would not strike a responsive chord in him and that he might not take defendant seriously. When viewed in perspective, the questions seem more akin to "preliminary exploration”, Reed, supra at 360, than to interrogation designed to elicit an admission of guilt. The officer had no way of knowing whether a crime had actually occurred or whether the defendant had concocted the story just to toy with the officer. Once defendant named the person he shot, Officer Upshaw did not press defendant for more details of the incident. Hence, this brief custodial investigation, prompted by defendant’s volunteered statements, never reached the accusatory stage and never focused on defendant. Reed, supra at 357, People v Ridley, 396 Mich 603; 242 NW2d 402 (1976). No Miranda warnings were required.
Neither are we persuaded that defendant’s confessions were tainted by alleged promises that defendant’s girlfriend would receive the reward. Defendant fully appreciated the distinction between claiming the reward and receiving it. Thus, defendant’s confession could not have been motivated by promises which he well knew could only be fulfilled upon his conviction. In any event, the record below clearly indicates that the officers permitted defendant to telephone his friend about the reward and the manner of claiming it. That was the extent of their promises.
We believe that "the circumstances of the promise[s] in the instant case were entirely compatible with the exercise by the [defendant] * * * of a free volition in the giving of the confessions, and therefore the confessions were admissible. * * * Here the promise[s were] * * * solicited by the accused, freely and voluntarily, so [he] * * * cannot be heard to say that in accepting the promise[s he was] * * * the victim * * * of compelling influences”. Taylor v Commonwealth, 461 SW2d 920, 922 (Ky, 1970). (Emphasis in original.)
Finding no clear error in the lower court’s ruling on admissibility, we hold that the three confessions may be entered as evidence on retrial.
Reversed and remanded.
It is unclear from the facts in Hall whether defendant sought a mistrial. In the case at bar, however, no mistrial was requested.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). | [
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Per Curiam.
On November 24, 1975, defendant was convicted of breaking and entering an occupied dwelling with intent to commit larceny therein, contrary to MCLA 750.110; MSA 28.305. He was sentenced on December 19, 1975, to a prison term of 8-1/2 to 15 years. He appeals contending that his confession was improperly admitted into evidence.
On March 26, 1975, Kathleen Olds witnessed an automobile collision in Grand Traverse County and was asked to summon help. Going to a nearby house Ms. Olds discovered that the glass in the door was broken and the door was open. She went inside, called the police and returned to the accident scene where she reported her observations. The police investigated the house and contacted the owner who found a shotgun, shotgun shells, food and safe missing. The items were subsequently confiscated from one of the vehicles involved in the collision which had been occupied by defendant and a companion.
Three days after the accident Detective Sergeant Martin Trombley of the county sheriffs depart ment went to Munson Hospital for purposes of interviewing defendant with regard to the breaking and entering. Defendant was hospitalized for injuries suffered during the collision. As a result of the interview, defendant confessed to the breaking and entering.
Prior to trial defendant moved to suppress his confession on the basis that Miranda warnings were not timely given and that medication he was receiving while hospitalized rendered his confession involuntary.
Following a Walker hearing, the trial court denied the motion. The court found that defendant was not questioned as to any material aspect of the crime charged until after he was advised of his constitutional rights. The court further held that defendant was aware of his rights, knowingly waived them and voluntarily confessed notwithstanding the medication being administered. The court based its determination on medical testimony offered at the hearing and on the court’s own assessment of defendant’s lucidity made after hearing a recording of the interview.
In order to be admissible at trial, statements obtained from an accused during custodial interrogation must be preceded by warnings of the accused’s constitutional rights. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966). In Michigan, an accused is entitled to such warnings prior to questioning once an investigation has focused on him. People v Reed, 393 Mich 342; 224 NW2d 867 (1975), cert den, 422 US 1044, 1048; 95 S Ct 2660, 2665; 45 L Ed 2d 696, 701 (1975), People v Ridley, 396 Mich 603; 242 NW2d 402 (1976).
In the case at bar, Sergeant Trombley, upon first entering defendant’s hospital room, asked the defendant where he was from and how he happened to arrive in the county. The officer thereafter read the defendant the Miranda warnings, defendant indicated he understood them, waived his rights, and, upon further questioning by the officer, confessed to the crime. Trombley admitted at the Walker hearing that at the time of the interview defendant was suspected of the crime.
The record reveals that questions preceding the warnings did not substantively concern the offense charged. Therefore, they fall outside the parameters of the Miranda decision. People v Van Epps, 59 Mich App 277; 229 NW2d 414 (1975). See, People v Toler, 45 Mich App 156; 206 NW2d 253 (1973) . But see, People v Mann, 49 Mich App 454; 212 NW2d 282 (1973). Miranda also bars the prosecution from proving the guilt of an accused with statements made by the accused while in custody prior to obtaining or effectively waiving the assistance of counsel. Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971), Michigan v Tucker, 417 US 433; 94 S Ct 2357; 41 L Ed 2d 182 (1974) , People v Reed, supra. In the present case, however, the statements of the defendant which were introduced into evidence followed his waiver of the right to counsel. We find that the requirements of Miranda were fully satisfied.
Defendant’s argument that his confession was involuntary also fails. While an appellate court, in reviewing a determination made at the conclusion of a Walker hearing, will examine the entire record and make an independent determination of the voluntariness of a statement, the decision of the lower court will only be reversed where the reviewing court has a definite and firm conviction that an error was committed. People v McGillen #1, 392 Mich 251; 220 NW2d 677 (1974), People v Van Epps, supra. After examining the entire record, we conclude that no error was committed by the trial court and its decision is amply supported by the evidence.
Affirmed.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). | [
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J. H. Gillis, J.
On July 3, 1974 plaintiff commenced an action against defendant to recover damages for an alleged breach of a construction contract in that defendant had failed to pay money owing which totálled $45,818.48. Defendant denied a breach and filed a counterclaim alleging that plaintiff was the breacher in failing to totally complete the project, resulting in a loss of profits to defendant, and also that plaintiff’s workmanship had been deficient in various respects. These actions were consolidated for trial with the case of Swanson Associates, Inc. v Flying Dutchman, Inc. A bench trial was conducted, resulting in a judgment for plaintiff. Defendant appeals as of right.
There is no dispute that the parties agreed in this case that plaintiff would perform work for the remodeling of the interior of the Flying Dutchman restaurant. The heart of the controversy is this: plaintiff claims that the contract was on a "time and materials” basis and defendant contends that the contract was on a "fixed sum and fixed time” basis.
The testimony at trial established that plaintiff had previously contracted with defendant for the remodeling of the exterior of the restaurant. The contract was written on a "fixed sum” basis. The work was completed and consideration paid to everyone’s satisfaction.
Shortly thereafter, in January or February of 1972, John VanAlstyne, president of defendant corporation, decided to remodel the interior of the restaurant, the subject matter of this dispute. VanAlstyne contacted Weslie Holland, the agent of Swanson, for the purpose of preparing plans and receiving bids. VanAlstyne advised Holland that the project was urgent and that he desired it to be completed by June, 1972. Preliminary drawings were prepared and the project was put out for estimates. Plaintiff submitted an estimate of $55,-000 to $60,000 based on these drawings and was chosen as the contractor for the job. Defendant secured a loan to cover this estimate. This estimate did not include mechanical and electrical costs. No written contract was ever drafted between plaintiff and defendant as to this project.
The restaurant was closed during the period of April 18 through May 11, 1972 so that the bulk of the construction could be completed. However, the crew did not arrive until April 24, 1972, and little work was accomplished. Construction continued with additional drawings being prepared on a day-by-day and week-by-week basis to reflect the working decisions as they were made. Holland stated that he was present at the job site approximately three times per week. VanAlstyne was present almost daily taking an active role in the project. Numerous changes, revisions and decisions were made as the job progressed.
Plaintiff billed defendant a total of $100,156.20 for labor and material. Defendant paid $54,337.72. Upon the failure of defendant to pay the remainder of the bill, plaintiff ceased work. Defendant has since expended additional funds for the completion of some of the unfinished work.
The trial court found a contract implied in fact and concluded that plaintiff should be paid for services rendered on a "time and materials” basis. The court then awarded plaintiff its requested damages. The trial court also concluded that defendant’s counterclaim had no merit.
The record and pleadings are complicated and confusing. We have attempted to simplify and clarify the issues presented on appeal, classifying defendant’s arguments into two major areas: a) complaints as to the findings of the trial judge, and b) evidentiary complaints.
With respect to the first area of complaint, defendant claims that the trial court failed to comply with GCR 1963, 517.1 in two respects: a) that the trial court’s finding of a contract implied in fact is clearly erroneous, and b) that the trial court failed to make sufficient findings of fact as to various disputed issues in the principal complaint and the counterclaim.
GCR 1963, 517.1 provides:
"In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. It will be sufficient if the court makes brief, definite, and pertinent findings and conclusions upon the contested matters without over elaboration of detail or particularization of facts. If an opinion or memorandum decision is filed, it will be sufficient if the findings and conclusions appear therein. The clerk shall notify the attorneys for both parties of the findings of the court. Findings of fact and conclusions of law are unnecessary on decisions of motions except as provided in sub-rule 504.2. Requests for findings are not necessary for purposes of review. No exception need be taken to any finding or decision. Findings of fact shall not be set aside unless clearly erroneous. In the application of this principle regard shall be given to the special opportunity of the trial court to judge the credibility of those witnesses who appeared before it.”
In support of the "clearly erroneous” argument, defendant directs us to various communications between itself and Swanson wherein Swanson listed the projected cost of the project to be about $60,000. Defendant further argues that it is incredible to believe that plaintiffs original estimate did not include mechanical and electrical costs and at the very least plaintiff was required to inform defendant that the estimate did not include such factors, and also to warn VanAlstyne that the cost was exceeding the estimate. Additionally, defendant submits that the procuring of the loan establishes his belief that the contract was for a "fixed sum”.
A finding of fact made by a trial judge will be set aside as clearly erroneous if the reviewing court finds that a definite mistake has been committed. Tuttle v Department of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976). We do not find a definite mistake in this case.
A contract implied in fact has been defined as one that:
"arises under circumstances which, according to the ordinary course of dealing and common understanding, of men, show a mutual intention to contract. In re Munro’s Estate, 296 Mich 80 [295 NW 567] (1941). A contract is implied in fact where the intention as to it is not manifested by direct or explicit words between the parties, but is to be gathered by implication or proper deduction from the conduct of the parties, language used or things done by them, or other pertinent circumstances attending the transaction. Miller v Stevens, 224 Mich 626 [195 NW 481] (1923). The existence of an implied contract, of necessity turning on inferences drawn from given circumstances, usually involves a question of fact, unless no essential facts are in dispute.” Erickson v Goodell Oil Co, Inc, 384 Mich 207, 211-212; 180 NW2d 798 (1970).
John Rockwell, president of plaintiff corporation, testified that it was his understanding that payments would be made on a "time and materials” basis. He also stated that his company would never have given a firm estimate based on drawings as incomplete as the ones initially submitted to him. The mechanical and electrical specifications were not determined until the equipment was already in place. This work was done by subcontractors on a "time and materials” basis and not by plaintiff itself. The types of materials and fixtures to be installed were determined on a daily basis as new drawings were prepared. Although VanAlstyne testified that he was unaware that the estimate was based on preliminary drawings, Holland testified that he was fully aware of that fact and further stated that he advised VanAlstyne to hire kitchen and bar consultants for the purpose of determining the needed specifications. Defendant’s own expert stated that any estimate based on the preliminary drawings would actually be a "guesstimate” because the materials used would greatly determine the cost.
Defendant itself places the blame for most of the misunderstandings on Swanson. We are not deciding the merits of that claim, but we do point out that the architect is the agent of the owner, not the contractor. The communications between Swanson and VanAlstyne may be relevant in determining VanAlstyne’s state of mind, but these communications do not establish the terms of the agreement, if any, between plaintiff and defendant. In fact, Swanson’s understanding that the estimate was based on preliminary drawings is binding on defendant.
The trial judge found no express agreement between the parties as to the price terms of the construction contract. He analyzed the conduct of the parties including, but not limited to, VanAlstyne’s constant presence at the job site and the need to make day-to-day determinations of desired materials due to the absence of necessary specifications in the initial drawings submitted to plaintiff and concluded that the implied contract was on a "time and materials” basis. We find no mistake in his conclusion and find ample support in the evidence.
In answer to defendant’s second contention of noncompliance with GCR 1963, 517.1, we agree with some of the claims made and find the others to lack merit. We direct the reader to Ray v Mason County Drain Commissioner, 393 Mich 294; 224 NW2d 883 (1975), and Powell v Collias, 59 Mich App 709; 229 NW2d 897 (1975), for a detailed explanation of the requirements of GCR 1963, 517.1. Most applicable to the present situation is the principle that mere conclusions without disclosure of the facts relied upon to support the conclusions do not satisfy the rule.
In the instant case, the trial judge’s opinion contains a recital of the relevant facts and claims of the parties. It then continues on to reveal the court’s conclusions and resolutions. We reprint those findings in relevant part:
"The court concludes that the owner entered into an implied contract with the contractor and architect, under the terms of which he agreed to pay them a reasonable price for labor, material, and services rendered.
"The court finds the contractor did furnish value in the amount of $100,156.20, for which it is entitled to be paid.
* # #
"The court finds no merit to defendant’s counterclaim, since the court finds the breach to be the owner’s for nonpayment.”
Although the trial judge determined that plaintiff was entitled to recover a reasonable price for the services rendered, he failed to factually determine reasonableness. Plaintiff testified that his usual markup on materials is 33-1/3 per cent. Defendant produced witnesses who testified that the general practice of the industry is to charge a 10-20 per cent markup on a "time and materials” contract. In awarding damages based on quantum meruit the trial judge must make a determination of reasonable value considering factors such as general practice of the industry. See H O Brackney & Son v Ryniewicz, 346 Mich 404, 409-410; 78 NW2d 127 (1956). The trial judge failed to determine what percentage is reasonable.
Defendant also presented witnesses who testified that plaintiff overcharged it for the wine rack. The trial judge failed to determine this contested issue.
Additionally, the trial judge failed to factually determine the merits of defendant’s counterclaim. Although the plaintiff succeeded in persuading the court that the contract was on a "time and materials” basis, it does not follow that plaintiff is relieved from liability if its workmanship is defective.
The trial judge is instructed to factually determine the contested issues including the amount of the charges, the alleged overcharge on the wine rack, and also the defective floor and failure to provide a masonry ceiling as alleged in the counterclaim.
Proceeding to the evidentiary claims, defendant contends that the trial judge erred in admitting evidence of the subcontractors’ bills. Rockwell testified that from his experience as a general contractor it was his opinion that the bills were reasonable. Defendant produced no evidence challenging the reasonableness of the subcontractor’s work. After reviewing the record, it is our opinion that Rockwell gave sufficient testimony establishing that the bills as received were entered as business records and that he used these as the basis for his bills to defendant. We find no error in admitting the bills on those grounds. Cf. R G Moeller Co v Van Kampen Construction Co, 57 Mich App 308, 314; 225 NW2d 742 (1975).
We likewise find no error in the trial judge’s refusal to compel plaintiff to produce documents of contracts with other individuals and corporate tax records. After argument on the issue, the trial judge determined that
"The probative value of such evidence does not justify the distraction that it would cause to become involved in separate problems which have very little relevancy or materiality to this case. Accordingly, the court is of the opinion that such evidence, if it were produced, is not admissible, and will not require the enforcement of the subpoena as to that evidence.”
It is well established that relevancy determinations are within the sound discretion of the trial judge. We find no abuse of discretion.
This cause is remanded to the trial court for factual determinations to be made consistent with this opinion. The trial judge is additionally in structed to deduct from whatever damages are ultimately determined the $4,847 that was not part of this project.
The remaining issues do not merit discussion, including the issue raised claiming error in the Swanson case and the alleged error in the dismissal of the defendant’s separate cause of action brought against plaintiff.
Remanded. We retain jurisdiction. No costs, neither party having prevailed in full.
Opinion After Remand (April 18,1977)
This case was originally heard by this same panel. On March 2, 1977, we released an opinion remanding this cause to the trial court for additional factual determinations.
The trial court has complied with our order submitting to us factual determinations on the necessary issues. We have reviewed those findings. We are not of the opinion that the trial court has committed a definite mistake. Tuttle v Department of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976). We therefore affirm the trial court’s decision.
Affirmed. No costs.
Swanson Associates, Inc. (hereinafter referred to as Swanson) is the architectural firm involved in this project. They also sued defendant to recover contract damages. That case is not before us now; but in order to fully understand the present factual situation, parts of that case will be included in our discussion.
Actually, the trial court did not award plaintiff everything it had requested. The trial judge declined to award interest and also gave a ten per cent credit for services plaintiff admitted he did not render. However, plaintiff’s general request for damages was awarded, i.e., the bills sent to defendant for work done and contracted by plaintiff.
These two issues claim error in circuit court cases other than the one presently before us on appeal. Accordingly, we will not address these issues. | [
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Per Curiam.
As a result of plea negotiations between the prosecution and defense counsel, defendant Junior Laverne Parney, originally charged with first-degree murder, MCLA 750.316; MSA 28.548, pled guilty at his arraignment to second-degree murder, MCLA 750.317; MSA 28.549, for the shooting death of his estranged lover, Ms. Elizabeth Kurtz. Prior to this plea, defense counsel waived the reading of the information and the second-degree murder statute. The circuit court accepted the proffered plea and later sentenced defendant to a 30- to 45-year term in prison.
I.
Initially, defendant charges that the lower court erred in permitting a social worker to determine his competence to stand trial. The prosecutor responds that defendant waived this error by his subsequent plea of guilty. See People v Nagle, 59 Mich App 345; 229 NW2d 446 (1975), and People v Miller, 62 Mich App 495; 233 NW2d 629 (1975). Based on our Supreme Court’s recent pronouncement in People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976), we reject the prosecutor’s contention.
In Alvin Johnson, Justice Williams, writing for the Court, observed:
"[I]t is clear that the United States Supreme Court, while recognizing that certain rights of defendant may be waived by a subsequent plea of guilty, does not say that is true of all rights. Certainly it is true that those rights which might provide a complete defense to a criminal prosecution, those which undercut the state’s interest in punishing the defendant, or the state’s authority or ability to proceed with the trial may never be waived by guilty plea. These rights are similar to the jurisdictional defenses in that their effect is that there should have been no trial at all. The test, although grounded in the constitution, is therefore a practical one. Thus, the defense of double jeopardy, those grounded in the due process clause, those relating to insufficient evidence to bind over at preliminary examination and failure to suppress illegally-obtained evidence without which the people could not proceed are other examples. Wherever it is found that the result of the right asserted would be to prevent the trial from taking place, we follow the lead of the United States Supreme Court and hold a guilty plea does not waive that right.” 396 Mich at 443-444. (Footnotes omitted.)
Unquestionably, the state is powerless to undertake a criminal prosecution of an incompetent defendant:
"A defendant who is determined incompetent to stand trial shall not be proceeded against while he is incompetent.” MCLA 330.2022(1); MSA 14.800(1022X1).
We believe that this right of a defendant to avoid prosecution while incompetent is one "grounded in the due process clause” and in the foregoing statute. Hence, under Alvin Johnson, supra, defendant’s later guilty plea did not waive the alleged error arising from the prior competency determination. Accordingly, we proceed to the merits of this appeal.
II.
Defendant assails the lower court’s ruling at a competency hearing held on September 30, 1975, which permitted, over objection, Ms. Constance Fortin, a social worker employed at the Center for Forensic Psychiatry, to testify and to submit a written report, dated September 23, 1975, regarding defendant’s competence to stand trial. This evaluation by Ms. Fortin was the second competency determination involving defendant undertaken by the forensic center. The first was performed on July 2, 1975, by a psychiatrist, Dr. Robert Bort, at circuit court behest to determine whether defendant could stand trial on two prior charges, carrying a concealed weapon and felonious assault with a firearm. These earlier charges arose out of a confrontation between defendant and his now deceased paramour, Ms. Kurtz, at her home. According to his admissions at the plea-taking, defendant, while out on bond on the weapons charges, returned to Ms. Kurtz’s home, quarreled with her, fatally shot her, and then unsuccessfully attempted to take his own life.
After a one-hour interview with defendant, Dr. Bort concluded that defendant was fully competent to stand trial on the weapons charges; the psychiatrist emphasized, however, that defendant:
"may have a psychotic process which is in remission because of his current treatment with moderate doses of antipsychotic medication, namely, Mellaril and Stelazine. Additional diagnoses include habitual excessive drinking and [facial] tic. Whether or not the patient has a schizophrenic process which is precipitated by his alcoholism would in part depend upon additional background history not currently available from this patient. Therefore, the diagnoses at this time must remain quite tentative. ” (Emphasis added.)
Dr. Bort’s written report was admitted at the September 30, 1975, competency hearing.
The testimony elicited from Ms. Fortin at the September 30th hearing reveals that she holds a masters degree in social work from the University of Michigan with emphasis in psychiatric casework; that she interned for eight months as an "Outreach worker” preparing mental patients for hospital release; that she worked for two years as a "Medical Social Worker” in a medical facility dealing with the psychosocial problems of disabled patients; that she interned, as part of her masters program, for unspecified periods with a community mental health program in Washtenaw County and with Mt. Carmel Hospital in Detroit. Ms. Fortin further testified that her present job description was that of forensic social worker; and that she had been employed at the forensic center for less than three months and had interviewed approximately 13 other persons prior to defendant. She also admitted that her training differed from that required of a psychiatrist; that she was not qualified to discern or evaluate medically rooted psychological problems; that in the course of a 1-1/2 hour interview with defendant she undertook "a mental status exam” of defendant, "observing [his] behavior[,] * * * appearance, * * * mood, affect, thought content, thought process, judgment [and] insight”. To complement these tests she was given a checklist drafted by two doctors at the forensic center which described a spectrum of psychiatric ills. Ms. Fortin also indicated that she had briefly discussed defendant’s situation with a staff doctor at the forensic center.
From defendant personally and from an unidentified person at the jail where defendant had been held,. Ms. Fortin learned that defendant was tak ing medication to reduce anxiety and was under the influence of these drugs during the interview. She stated, however, that it did not occur to her that this medication would have affected defendant’s reactions to her questions at the interview.
After cautious and thorough review of the record, we believe the lower court abused its discretion and thereby erred reversibly in qualifying Ms. Fortin as an expert capable of determining defendant’s competence to stand trial on the murder charge. People v Skowronski, 61 Mich App 71, 79-80; 232 NW2d 306 (1975). Further, we disagree with People v Lamont Crawford, 66 Mich App 581; 239 NW2d 670 (1976), to the extent it holds that any member of the forensic center staff, under MCLA 330.2026; MSA 14.800(1026), may determine a defendant’s competence to stand trial. Implicit within MCLA 330.2026, we believe, is the assumption that the "personnel” of the forensic center chosen "to perform examinations relating to the issue of incompetence to stand trial” must be minimally qualified to do so. Other than the fact of her employment with the forensic center, we glean no evidence from the record which shows Ms. Fortin to be equipped to determine whether defendant "is incapable because of his mental condition of understanding the nature and object of the proceedings against him or of assisting in his defense in a rational manner”. MCLA 330.2020(1); MSA 14.800(1020)(1). While she de nominates herself a "forensic” social worker, her recorded background is bereft of any indication that she is experienced in the application of psychiatric knowledge to the processes of law. Doubtless psychosomatic ailments and other organic problems can play a significant role in assessing a defendant’s competence to stand trial, and doubtless Ms. Fortin by her own admission is unqualified to make such an assessment. Nor is she qualified to decide the effects defendant’s medication had upon his answers to her questions or upon his general competence. Compare MCLA 330.2020(2); MSA 14.800(1020X2).
Four additional grounds buttress our conclusion that the lower court committed reversible error in qualifying Ms. Fortin as an expert on competence: 1. When one collates Dr. Bort’s written evaluation of July 2, 1975, with Ms. Fortin’s report of September 23, 1975, one notes a striking similarity of language that cannot be attributed to mere coincidence. Ms. Fortin acknowledged at the September 30, 1975, hearing that at the prosecutor’s request she utilized Dr. Bort’s notes and written report as an aid in her evaluation of defendant. However, we cannot tell whether Ms. Fortin independently assessed defendant’s competence, arrived at the same conclusion as Dr. Bort, and then used his wording as a matter of convenience; or, whether Ms. Fortin decided chiefly to defer to Dr. Bort’s expertise. While we note that in other areas of her report Ms. Fortin differed with the findings of Dr. Bort (thus supporting the conclusion that defendant was independently evaluated by her), we also recognize that competence is a transitory phenomenon, that is, "an ongoing concern”, People v Matheson, 70 Mich App 172, 179; 245 NW2d 551 (1976), and that defendant was entitled to an evaluation of competence based upon his mental state as of September 23, 1975, not upon the admittedly "tentative” and, by then, stale findings of Dr. Bort as parroted by Ms. Fortin.
2. Various panels of this Court have recently decided to reject the position taken in Sieling v Eyman, 478 F2d 211 (CA 9, 1973), and to hold that a defendant’s competence to plead guilty should be decided based upon the same standards employed to determine a defendant’s competence to stand trial:
"[A] finding that the defendant is able to comprehend the proceedings against him involves a conclusion that he is competent to understand all proceedings, not just a trial.” People v Matheson, supra at 181.
See also, People v Belanger, 73 Mich App 438; 252 NW2d 472 (1977).
Without intending to question the wisdom of Matheson and Belanger, we believe that, given the judicial use of a competency evaluation for dual purposes, it becomes crucial that the assessment of competence be undertaken by a fully qualified expert. The results of an erroneous determination are not difficult to fathom. A defendant erroneously found competent to stand trial who is later convicted (whether by his own plea or by jury verdict) may be shuttled off to prison to the detriment of himself and other prison inmates. Similarly, the erroneous assessment of incompetence deprives defendant and society of their day in court and raises the prospect that a possibly culpable but nondangerous defendant will avoid lengthy incarceration by means of a short respite at a mental facility. See MCLA 330.2031; MSA 14.800(1031) and MCLA 330.1401, 330.1515; MSA 14.800(401), 14.800(515).
3. The statutory procedures which become operative after a defendant is found incompetent to stand trial also suggest that assessments of competence are to be performed only by qualified medical experts. For example, if after a judicial determination of a defendant’s incompetence the court believes that there is a substantial probability that treatment would render defendant competent within the time limitations of MCLA 330.2034(1); MSA 14.800(1034)(1), then MCLA 330.2032(2); MSA 14.800(1032)(2) directs that "[t]he court shall appoint a medical supervisor of the course of treatment. The supervisor may be any person or agency willing to supervise the course of treatment, or the department of mental health.” (Emphasis added.) When this language is read together with the provision detailing the duties of the medical supervisor, see MCLA 330.2038; MSA 14.800(1038), we believe it untenable that nonmedical personnel could properly be assigned as medical supervisors of treatment.
4. We do not read 1972 PA 352 [MCLA 338.1751 et seq.; MSA 18.365(1) et seq.], the statute providing for licensing of social workers, as supportive of the proposition that social workers are qualified to render competency evaluations. While the statutory definition of social work, MCLA 338.1751(d); MSA 18.365(l)(d),* ** and the provision dealing with nondisclosure of confidential communications, MCLA 338.1764; MSA 18.365(14), might arguably be stretched to permit social-worker assessments of a defendant’s competence to stand trial, we believe that such a construction exceeds the fair intend ment of the statute. That a social worker may be required to "submit to the appropriate court a written evaluation of the prospects or prognosis of a particular case” does not mean that he or she may give opinions beyond his or her area of expertise.
III.
Since a remand for a new determination of defendant’s competence is required, we address only cursorily another issue defendant asserts on appeal: whether a plea of guilty is involuntary and hence violative of due process where the record does not establish that defendant was informed that intent to cause death is an essential element of second-degree murder. Arguing for an affirmative answer, defendant cites Henderson v Morgan, 426 US 637; 96 S Ct 2253; 49 L Ed 2d 108 (1976).
At first blush, the similarities between the instant defendant and defendant Morgan are striking:
1) Both defendants were of low intelligence.
2) Both defendants had quarrelled with their victims prior to killing them.
3) Both were charged with first-degree murder but elected to plead guilty to second degree.
4) The competency of both defendants was questioned before trial.
5) Both defendants were found competent to stand trial.
6) Neither guilty plea record contains any explicit statement that the intent to cause death is an essential element of second-degree murder. Nevertheless, Henderson v Morgan can be distinguished. There the Supreme Court based its hold ing on a factor that does not obtain in the present case. Specifically, the lower court found that defendant Morgan " 'was not advised by counsel or court, at any time, that an intent to cause the death or a design to effect the death of the victim was an essential element of Murder 2nd degree’ ” 426 US at 640.
In the instant case, however, the following colloquy between the lower court and defendant removes this case from the rule announced in Henderson:
"The Court: Mr. Gibbons [defense counsel] has explained the difference between these two charges that are placed against you?
"Defendant Parney: Yeah.
"The Court: And do you understand the difference in pleading guilty to the charge of murder in the second degree?
"Defendant Parney: Yes.”
Under both the majority opinion in Henderson, supra at 647, and the four-justice concurrence written by Justice White, Id, fn 2, p 649, a representation by counsel that the charge has been explained to defendant will suffice to avoid the Henderson defect.
In accordance with part II of this opinion, this case is reversed and remanded for a new evaluation by a qualified expert of defendant’s competence to stand trial on the second-degree murder charge, see People v McMiller, 389 Mich 425; 208 NW2d 451 (1973), Guilty Plea Cases, 395 Mich 96, 135-137; 235 NW2d 132 (1975), to be followed by a judicial redetermination of competence as required by statute.
While the opinion of the Court in Alvin Johnson garnered the signatures of only three of the five justices who heard the case, it is nonetheless controlling. Negri v Slotkin, 397 Mich 105; 244 NW2d 98 (1976).
We note that GCR 1963, 786 requires "the performance of [a] forensic psychiatric evaluation” on a defendant whose competence is questioned. (Emphasis added.) When statute and court rule collide in an area involving judicial practice and procedure, the court rule, of course, prevails. Buscaino v Rhodes, 385 Mich 474; 189 NW2d 202 (1971), People v Joker, 63 Mich App 421; 234 NW2d 550 (1975). Thus, use of the word "personnel” in MCLA 330.2026; MSA 14.800(1026) cannot override the command of GCR 1963, 786 that a possibly incompetent defendant be given a forensic psychiatric evaluation.
Dr. Bort’s report of July 2, 1975, states in pertinent part:
"Mental status examination, which was performed in private, lasted approximately one hour. The patient was an appropriately dressed, white male, appearing somewhat older than his stated age.
* ** * Conversationally, the intellectual functioning was judged to be within the low-normal range, although the general fund of information was certainly moderately lacking. * * * He was unable to interpret proverbs and this was thought to be from lack of exposure to same.”
Ms. Fortin’s report of September 23, 1975, states in pertinent part:
"Mental status examination, which lasted approximately an hour and one-half, revealed a caucasion [sic], gray-haired, 41 year old man, who appeared somewhat older than his stated age. * * * Conversationally, the intellectual functioning was judged to be within the low-normal range, although the general fund of information was certainly moderately lacking. He was unable to interpret proverbs and this was thought to be from lack of exposure to same.”
Sec. 1(d):
" 'Social work’ means the professional activity of helping individuals, groups or communities to enhance or restore their capacity for social functioning and creating societal conditions favorable to this goal. Social work practice consists of the professional application of social work values, principles and techniques to 1 or more of the following ends: helping people obtain tangible services; counseling
with individuals, families and groups; helping communities or groups
provide or improve social and health services; and participating in relevant legislative processes. The practice of social work requires knowledge of human development and behavior; of social, economic and cultural institutions; and of the interaction of all these factors.” MCLA 338.1751(d); MSA 18.365(l)(d).
"Sec. 14. (1) A person registered as a certified social worker, social worker or social work technician or an employee or officer of an agency for whom the certified social worker, social worker or social work technician is employed shall not be required to disclose a communication or any portion of a communication made by his client to him or his advice given thereon in the course of his professional employment.
"(2) A communication between a certified social worker, social worker or social work technician, or an agency of which the certified social worker, social worker or social work technician is an agent and a person counseled is confidential. This privilege is not subject to waiver except when the disclosure is part of the required supervisory process within the agency for which the certified social worker, social worker or social work technician is employed; or except where so waived by the client or a person authorized to act in his behalf. The certified social worker, social worker or social work technician shall submit to the appropriate court a written evaluation of the prospects or prognosis of a particular case without divulging facts or revealing conBdential disclosures when requested by a court for a court action. An attorney representing a client who is subject of such an evaluation shall have the right to receive a copy of the report. Where required for the exercise of a public purpose by a legislative committee the certified social worker, social worker, social work technician or agency representative may make available such statistical and program information without violating the confidentiality of the client.” MCLA 338.1764; MSA 18.365(14). (Emphasis added.) | [
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Levin, J.
The question presented is whether the Worker’s Compensation Appellate Commission erred in dismissing the employer’s appeal for failure to pay medical benefits during the appeal. We hold that the wcac did not err, .and affirm the decision of the Court of Appeals affirming the dismissal by the wcac.
i
The magistrate found that Mary Garcia was totally disabled and awarded worker’s compensation benefits to be paid by defendant McCord Gasket Corporation. The order provided that benefits were to be paid until the further order of the bureau, and that McCord shall also be "responsible for medical expense(s) pursuant to Section 315[ ] as follows: Any and all reasonable and necessary medical expenses related to plaintiff’s back et sequelae.”
A
As stated by the Court of Appeals, "[n]umerous disputes relating to the reasonableness and neces sity of various medical treatments followed.” A year after the award was entered in January, 1990, a "petition to stop benefits” was filed by McCord on January 8, 1991. A month later, on February 5, 1991, Garcia moved for dismissal of McCord’s appeal to the wcac from the magistrate’s decision asserting that McCord had "refused and denied payment of medical benefits required by the terms of the award” contrary to § 862(2), which provides that the filing of a claim for review of a magistrate’s decision "shall not operate as a stay of providing medical benefits” awarded by the magistrate, and that medical benefits shall be paid from and after the date of the award until final determination of the appeal.
McCord responded to Garcia’s motion to dismiss, stating that it had "considered all requests for payment of medical benefits and [had] paid those which were reasonable and necessary in accordance” with the magistrate’s decision, and had "denied payment on other requests which are not reasonable or necessary . . . .” McCord did not specify which "requests for payment” had been paid, and which had been denied, nor did it specify why a particular request was not reasonable or necessary.
McCord asserted that § 862(2) provides only for furnishing medical benefits "required by the terms of the award,” that the magistrate’s award in the instant case "does not provide the terms by which medical benefits would be required,” and that the award provided "no guidance” concerning "which medical providers and care and treatment [were] necessary or which amount was reasonable.”
B
The wcac, on June 20, 1991, ordered McCord to provide it within thirty days "an affirmation of the bills that have been received, the date the medical services were provided, and a showing that the bills have been paid pursuant to the magistrate’s order of January 22, 1989, awarding reasonable and necessary medical expenses related to plaintiff’s back. Failure to provide timely compliance with MCL 418.862(2) shall subject defendants’ appeal to dismissal.” (Emphasis added.)
McCord did not provide the affirmation of bills received and dates medical services were provided, and did not show that such bills had been paid. Rather, McCord responded on July 17, 1991, to the wcac order by filing a motion to remand and consolidate or hold in abeyance, stating that disputes had arisen concerning the portion of the award requiring payment of reasonable and necessary medical expenses, and stating:
What expenses or treatment are "reasonable and necessary” were not spelled out in the Magistrate’s decision and, therefore, has [sic] been a matter of differing interpretation. Defendant submits that it has paid all "reasonable and necessary” expenses since the date of the Magistrate’s decision.
McCord’s motion noted that a hearing was scheduled for July 31, 1991, on its application for a hearing objecting to the reasonableness and necessity of the medical expenses being claimed by Garcia. The motion continued that § 315 provides that all fees and charges for treatment were subject to the health care services rules, that those rules provide for resolving disputes between carriers and health care providers, and that rule 1904(6), concerning the continuation of medical benefits during an appeal, provides for expedited treatment accorded to sixty-day cases when a carrier files an application to stop or limit its liability.
The wcac, on August 30, 1991, denied the motion for remand and consolidation or to hold in abeyance, and granted Garcia’s motion to dismiss the appeal for failure to comply with § 862(2) and the wcac’s order of June 20, 1991.
c
The Court of Appeals affirmed the dismissal, holding that the wcac has the implied authority to dismiss for noncompliance with § 862(2), citing this Court’s decision in McAvoy v H B Sherman Co, 401 Mich 419; 258 NW2d 414 (1977).
The majority said that when McCord "refused to pay the medical bills as required” by the magistrate’s and wcac’s orders, it subjected itself "to the possibility of a dismissal as stated in the commission’s order.”
One of the judges on the panel dissented. He said that if the only question presented was whether. the wcac, "under its implied power to enforce § 862(2),” could properly dismiss an appeal by an employer who ignores a magistrate’s order requiring payment of medical benefits, he would join in the majority. He dissented because § 315 contemplates that the employer’s insurance carrier will "monitor closely medical treatment for injured workers with an eye to detecting both charges in excess of the schedules of maximum fees promulgated by the agency and any over-utilization.”
The dissenting judge said that the "problem in this case” was that the magistrate’s order was not "clear enough to make apparent what medical expenses are required.” It "merely recapitulates the statutory language” that obligates the employer to pay reasonable and necessary medical expenses under § 315, "albeit confining that obligation to plaintiff’s back condition. The award does not indicate what particular medical treatment ought to be included, nor does it provide criteria from which it could reliably be determined by the appellants, either in advance or in retrospect, that a particular prognosticated treatment, prosthetic, or prophylactic is within the magistrate’s concept of 'reasonable and necessary’ medical treatment related to plaintiff’s back.”
ii
McCord notes that § 862(2) does not expressly provide that the wcac may dismiss an employer’s appeal for failure to continue to provide medical benefits "until final determination of the appeal,” and contends that it lacks such power. We agree with the Court of Appeals, for essentially the same reasons set forth in McAvoy, that the wcac has the implied authority to dismiss appeals for noncompliance with § 862(2).
in
We affirm the decision of the Court of Appeals affirming the order of the wcac dismissing McCord’s appeal because § 862(2) and rule 1904(6) required McCord’s insurer to continue to provide medical benefits awarded by a magistrate during the pendency of an appeal until a different order was entered by a magistrate, the wcac, the Court of Appeals, or this Court. Rule 1904(6), paralleling § 862(2), provides in effect that the insurer’s filing of an application to stop or limit its liability does not operate as a stay, but entitles the insurer to expedited treatment.
Nor do we find the award to be ambiguous because it does not spell out the precise treatment that is within the ambit of "[a]ny and all reasonable and necessary medical expenses related to plaintiff’s back et sequelae.” Four doctors, three of whom were specialists who had treated Garcia and one of whom appears to have coordinated the treatment, testified concerning their findings and the treatments they had administered. Their testimony provided context for the language of the order, "reasonable and necessary medical expenses related to plaintiff’s back et sequelae.” McCord’s insurer was obliged to "continue to provide,” until a different order was entered by a magistrate, the wcac, the Court of Appeals, or this . Court, treat ments for Garcia’s back that were similar to those that her physicians, before the award, had provided as described in their testimony.
Magistrates do not ordinarily, if ever, spell out in an initial award of worker’s compensation the particular treatments to be administered by an injured worker’s physicians. The hearing, as here, may have concluded over a year before the award was entered. The patient, as here, may have moved from one physician to another. Different physicians often recommend and administer different treatments for the same ailment. The worker’s condition may have worsened or improved, requiring a change in treatment. A magistrate’s award cannot properly be faulted as ambiguous because it does not spell out the precise treatments to be administered in the future by the worker’s physicians.
A
Section 315(4) provides that a worker’s compensation insurer shall not pay a provider of medical services for any excessive charges or unjustified treatment, and that a provider shall return payments for excessive charges or unjustified treatment. Section 315 further provides that fees and other charges for medical treatment of injured workers shall be subject to rules promulgated by the Department of Management and Budget. Health care services rules were so promulgated, and provide a process for resolving disputes between insurers and providers.
We agree with the dissenting judge that § 315 contemplates that worker’s compensation insurers will police compliance with health care services rules by withholding payment when they conclude that the charges are excessive or the treatment is not necessary. When a dispute arises, it is to be resolved according to the dispute resolution provisions. Ordinarily, disputes are resolved without a hearing, sometimes through mediation, and, in a relatively small number of cases, following a hearing.
Seventy to eighty percent of all claims are paid voluntarily by worker’s compensation insurers or self-insured employers. In those cases, the procedures set forth in subsections 1 through 5 of rule 1904 for resolving insurer/provider disputes are applicable, and the insurer may, indeed, withhold payment until the dispute is resolved in accordance with those procedures.
When, however, compensation and medical benefits are not paid by the insurer or self-insured voluntarily, subsection 6 of rule 1904 contemplates that, after an award of compensation and medical benefits has been entered by a magistrate, the insurer or a self-insured employer will provide medical benefits until another order is entered by a magistrate, the wcac, the Court of Appeals, or this Court, relieving the insurer or the employer of its obligation to make payment.
Where benefits are not paid voluntarily, and benefits are awarded, a number of years generally will have elapsed between the injury and the entry of an award. Section 862(2) provides that medical "[bjenefits accruing prior to the award shall be withheld until final determination of the appeal.” It is thus only in the relatively smaller number of cases in which a mágistrate enters an award and a dispute arises concerning medical benefits accruing after the award that the insurer is required to make payments and cannot withhold payment until an adjudication of disputes that arise after entry of the award.
The strictures of subsection 6 of rule 1904 harmonize the language added by 1985 PA 103, providing that an appeal to the wcac "shall not operate as a stay of providing medical benefits required by the terms of the award,” with the earlier enacted language of § 315, providing that a health care provider shall not receive, and an insurer shall not pay, charges deemed by the carrier to be excessive or for unjustified treatment.
B
In the instant case, McCord, a year after the magistrate’s award was entered in 1990, filed, on January 8, 1991, a "petition to stop benefits,” on the basis of reports of physicians who had examined Garcia in November, 1990, asserting that further medical treatment was not reasonable or necessary.
This, thus, is not a case in which an insurer asserted that a particular treatment was unnecessary or that a particular charge was excessive, or even that ambiguity of an award left it in doubt regarding the extent of its responsibility. In the instant case, McCord’s insurer asserted, rather, that no further medical treatment was necessary. Section 315 and the health care services rules do not contemplate that an insurer, after an award has been entered, can withhold all payment for medical benefits absent a determination by a magistrate or an appellate tribunal that no further medical treatment is necessary.
If an insurer, simply by filing a petition to stop benefits, could deny a worker — found by a magistrate after a full hearing to have been disabled and entitled to compensation and medical benefits —payment of medical benefits until another hearing and determination by a magistrate or an appellate tribunal whether further medical treatment was justified, § 862(2), providing that "[a] claim for review . . . shall not operate as a stay of providing medical benefits required by the terms of the award,” would be deprived in many cases of meaningful effect.
c
We do not wish to be understood as saying that the wcac could not, in the exercise of discretion, refrain from dismissing an appeal where the insurer has timely sought a hearing — which, because of scheduling or other unavoidable difficulty, has been unduly delayed — respecting a claim that particular treatments, as distinguished from all medical care and treatment, are unnecessary or that particular charges are excessive.
McCord did not, following the wcac’s order of June 20, 1991 — reqúiring an affirmation of the bills received and paid — respond by showing that it had paid all bills except specifically identified bills. McCord claimed, rather, that all charges from and after October, 1990, were unnecessary and excessive because physicians had reported to it, on the basis of examinations in November, 1990, that in their opinion no further care or treatment was justified. Although McCord’s petition to stop benefits was not filed until January, 1991, it refused to pay anything at all in respect to any bill for care or treatment rendered from and after October, 1990.
Neither § 315 nor the health care services rules empower an employer to so ignore an order of a magistrate awarding medical benefits. The petition to stop benefits filed by McCord in January, 1991, was just that — a petition, not an order of a magistrate or appellate tribunal authorizing the suspension or stoppage of payment for all medical care or treatment.
We conclude, on the facts and circumstances of this case, that the wcac did not abuse its discretion in dismissing McCord’s appeal.
Affirmed.
Brickley, C.J., and Cavanagh, Boyle, Riley, and Mallett, JJ., concurred with Levin, J.
Weaver, J., took no part in the decision of this case.
201 Mich App 697; 506 NW2d 912 (1993).
The order and subsequent orders also directed defendant National Union Fire Insurance Company, McCord’s insurer, to pay the benefits, and to take other actions. There were also filings by Crawford & Company, which processes medical claims for McCord and Union Fire. Because Union Fire and Crawford, and their attorneys, were all acting for McCord, they are individually and collectively referred to as McCord.
Dated January 9, 1990, mailed January 25, 1990.
The injury dates were September 17, 1979, January 21, 1987, and March 18, 1987.
Depositions were taken and hearings were held in the fall of 1988, and the case was submitted for decision on December 1, 1988.
MCL 418.315; MSA 17.237(315).
201 Mich App 700.
Garcia’s motion asserted, and McCord admitted, that McCord had filed a notice of dispute with the bureau in October, 1990, stating that Garcia’s request to refer to a visiting nurse association and Dr. Fernando Diaz was denied by McCord pending results of independent medical examinations, and that McCord had responded to medical bills submitted by Garcia by filing another notice of dispute in December, 1990, stating that on the basis of reports attached to the notice of dispute "further medical treatment is not reasonable or necessary” and that it had indicated that it will not be paying medical bills submitted, and had filed an application to stop benefits in light of new medical reports.
The following subsection 2 was added to § 862 of the act by 1985 PA 103:
A claim for review filed pursuant to section 859a or 864(11) of a case for which an application under section 847 is filed after March 31, 1986 shall not operate as a stay of providing medical benefits required by the terms of the award. Medical benefits shall be provided as of the date of the award and shall continue until final determination of the appeal or for a shorter period if specified in the award. Benefits accruing prior to the award shall be withheld until final determination of the appeal. If the benefit amount is reduced or rescinded by a final determination, the carrier shall be reimbursed for the amount of the expenses incurred in providing the medical benefits pending the appeal in excess of the amount finally determined. Reimbursement shall be paid upon audit and proper voucher from the general fund of the state. If the award is affirmed by a final determination, the carrier shall provide all medical benefits which have become due under the provisions of the award, less any benefits already provided for. Interest shall not be paid on amounts paid pending final determination. [MCL 418.862(2); MSA 17.237(862X2).]
McCord asserted that it had "used well established guidelines for customary and reasonable charges, necessity of medical treatment backed by impartial medical evaluation and opinion by specialists in the field
See n 7.
McCord continued that it had "consulted with the State of Michigan Workers’ Compensation Health Care Services Rules where applicable as well as independent medical evaluations and opinions as to the necessity of ongoing medical treatment.”
McCord also asserted that Garcia’s motion "incorrectly suggests that no medical benefits have been provided while this appeal has been pending.” This was untrue because McCord had "paid those benefits which are reasonable and necessary as established by impartial and customary guidelines.”
Section 315 provides that an employer shall furnish to an employee who receives a work-related personal injury "reasonable medical, surgical, and hospital services and medicines, or other attendance or treatment” when needed.
Section 315 was amended by 1981 PA 195, and subsequently amended by 1985 PA 103, to provide that "fees and other charges for any treatment or attendance, service, devices, apparatus, or medicine” shall be subject to rules promulgated by the Department of Management and Budget establishing maximum charges. MCL 418.315(2); MSA 17.237(315X2).
12 3456Health care services rules were promulgated as 1991 AACS, R 418.101 et seq., and provide in part 19 (rules 1901-1905) a process for resolving differences between carrier and provider regarding charges made by providers.
Rule 1904 provides:
(1) When a carrier adjusts or rejects a bill or portion thereof pursuant to these rules, a notice given pursuant to R 418.1901(1) creates an ongoing dispute for the purpose of section 801 of the act. The time for making payment of a bill under section 801 of the act shall not run unless the bill is properly submitted according to applicable rules and statutes.
(2) Any dispute that concerns any of the following shall be resolved as if it were an application for mediation or hearing filed under section 847 of the act:
(a) The medical appropriateness of health care or a health care service.
(b) Utilization of health care or a health care service. •
(c) The need for health care or a health care service.
(d) Any dispute over the cost of health care or a health care service.
(3) Where the dispute results in the denial of medical treatment for a worker, or where there is a petition by an employer to stop its liability for medical benefits previously ordered, including proceedings under subrule (6) of this rule, the dispute shall receive the same expedited treatment accorded to 60-day cases under section 205 of the act, except that the bureau may refer the matter to mediation under section 223 of the act.
(4) A dispute under this rule may be submitted to arbitration under section 864 of the act.
(5) A dispute under this rule may be handled as a small claim under section 841(2) to (10) of the act if it meets the requirements set forth in that section.
(6) If a carrier is required by the terms of an award to provide medical benefits, the carrier shall continue to provide those benefits until there is a different order by any of the following entities:
(a) A magistrate.
(b) The appellate commission.
(c) The court of appeals.
(d) The supreme court.
This subrule shall not preclude the use of the maximum allowable payments provided by these rules for the payment of bills by- carriers. When a carrier files an application to stop or limit its liability under this subrule, it shall receive the expedited treatment provided for under subrule (3) of this rule.
(7) If the bureau believes that a provider is not in compliance with these rules, the bureau may file an application for mediation or hearing under this rule.
McCord contended that because it had filed an application for hearing seeking to stop or limit its liability, it was in compliance with § 315 and the health care services rules, and that "the dismissal of its appeal should [not] be subject'to consideration at this time, if at all.” McCord asked the wcac to remand the case to the bureau for a consolidation with the subject matter of the hearing scheduled for July 31, 1991, or hold the motion to dismiss its appeal in abeyance to allow the parties to fully develop the record relating to the dispute.
Garcia responded to the motion to remand and consolidate or hold in abeyance, stating that McCord had failed to comply with the wcac’s order of June 20, 1991, and that it was attempting to obfuscate and "delay the relief of the issues presented” in the motion to dismiss.
One commissioner would have denied both motions.
In McAvoy, this Court held that the Worker’s Compensation Appeal Board was empowered to dismiss an appeal for failure to pay seventy percent of the weekly benefits following an award,'although § 862 (MCL 418.862; MSA 17.237[862]), requiring such payment, did not expressly provide therefor. This Court said that the power to dismiss appeals for noncompliance was "necessarily implied from the statute itself.” McAvoy, p 461.
The majority continued:
What [McCord] should have done with the disputed medical bills was to pay them, or the maximum allowed under the rules if that amount was less, and then proceed with an expedited hearing as provided in Rule 1904(3) and (6), supra. [201 Mich App 705.]
201 Mich App 710. The dissenting judge continued:
This becomes important to more than the carriers when the state treasury, pursuant to the above-cited § 862(2), is brought forward as the guarantor of last resort when, despite a carrier’s best efforts, medical benefits that are unnecessary or overpriced have been provided in accordance with a magistrate’s order that is later overturned. [Id.]
Id., pp 710, 711. The dissenting judge continued:
The upshot is that, under the majority opinion, the insurance carrier must pay all medical bills that are facially related to any kind of treatment for plaintiff’s back or arguably related conditions, which obligation is limited only by the maximum fee set by administrative regulation for any individual treatment, attendance, service, device, apparatus, or medicine. . . . . . . This will then predictably create a situation, unless reversed, in which neither employees as a class, nor insurance carriers as a group, have any particular incentive under this construction of the act to challenge the necessity for or charge —within limits fixed by regulation — made for any medical service, because reimbursement from the general fund is guaranteed. . . .
The majority finds support for its position in Rule 1904(6), but the obligation imposed by the rule is in turn derivative, once again, being based on the requirement imposed "by the terms of an award to provide medical benefits.” The rule, like the statute, is written in general terms, but can only be properly understood to apply to terms of a magistrate’s award to provide medical benefits that are definite, where the requisite certainty is measured by whether the award can be made judicially enforceable under § 863. [Id., pp 712-713.]
The dissenting judge would have reversed and remanded to the wcac for a determination of the appeal on the merits, or to permit further remand to the magistrate for clarification of the order, or for joinder with McCord’s request for a hearing concerning the propriety of the charges. Id., pp 715-716.
If a carrier determines that a health facility or health care provider has made any excessive charges or required unjustified treatment, hospitalization, or visits, the health facility or health care provider shall not receive payment under this chapter from the carrier for the excessive fees or unjustified treatment, hospitalization, or visits, and shall be liable to return to the carrier any such fees or charges already collected. The department of management and budget may review the records and medical bills of any health facility or health care provider determined by a carrier to not be in compliance with the schedule of charges or to be requiring unjustified treatment, hospitalization, or office visits. [MCL 418.315(4); MSA 17.237(315X4).]
MCL 418.315; MSA 17.237(315).
R 418.101 et seq.
Bureau of Worker’s Disability Compensation Annual Report, 1993, pp 1, 10. 88,259 injuries were reported during 1993; 22,496 petitions were received.
See n 13 for text. | [
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Weaver, J.
We are asked to determine, first, whether plaintiff Detroit Fire Fighters Association and its named member-officers have standing to challenge an alleged violation of the Detroit City Charter and, second, whether the executive branch of Detroit city government may unilaterally impound budget monies. We would hold that the collective bargaining unit of fire fighters does not have a sufficiently real and adverse interest separate from the general public to confer standing in this action. On the basis of our finding of lack of standing, we would vacate the decision of the Court of Appeals regarding the second issue, and affirm with respect to the standing issue.
i
In 1989, Mayor Coleman Young submitted a written budget proposal to the Detroit City Council. The city council amended the budget to include $750,000 for a new fire department squad, whose purpose was to provide reserve manpower and to engage in certain specialized functions, such as rescue, extrication, and transport. The city council passed the amended budget, but the mayor vetoed $500,000 of the $750,000 appropriated. By a vote of eight to one the council overrode the mayoral veto, reinstating the original $750,000 appropriation. The mayor never authorized the use of the appropriation.
A number of demands were made by plaintiffs that the appropriated funds be spent, but the demands were ignored. Plaintiffs filed suit in circuit court, originally seeking injunctive relief, but later requesting a writ of mandamus to compel defendants to spend the money. During the parties’ hearing on cross motions for summary disposition, the trial court ruled that plaintiffs had standing, but that the defendants were entitled to summary disposition because the mayor was not required to consult with the city council before deciding not to spend appropriated funds. _
Both parties appealed. The Court of Appeals reversed the decision of the trial court on the issue of standing, finding that plaintiffs did not assert particularized injuries to distinguish them from the general public to such a degree that standing would be conferred against a public body and public officials. 199 Mich App 129; 501 NW2d 202 (1993). The Court of Appeals then addressed the substantive issues, stating in a footnote that "although they are now moot, . . . they are of public significance and are likely to reoccur,” id. at 131, n 1, affirming the trial court ruling that the mayor was "not required to spend the money appropriated for hiring additional fire fighters.” Id. at 133. We then granted leave to appeal.
ii
Standing is a legal concept that focuses on whether the litigant’s interest will ensure sincere and vigorous advocacy. Simply demonstrating an ability to vigorously advocate does not confer standing. Rather, demonstration that a substantial interest of the litigant will be detrimentally affected in a manner different from the public at large must be shown. Alexander v Norton Shores, 106 Mich App 287, 288; 307 NW2d 476 (1981). Standing does not address the ultimate merits of the substantive claims of the parties.
There appears no quarrel that plaintiffs would have vigorously and sincerely advocated their cause, and the record would support that position. Where the parties disagree is on plaintiffs’ claim of standing based on membership in the fire fighters union, and in plaintiffs’ reliance on the ruling iri Muskegon Bldg & Construction Trades v Muskegon Area Intermediate School Dist, 130 Mich App 420; 343 NW2d 579 (1983).
The five individually named plaintiffs also claim residency in the City of Detroit, in addition to their union membership and status as employees of the city. However, plaintiffs’ status as city employees or Detroit residents provides them with no greater interest in these proceedings than the thousands of other city employees or millions of city residents. It is well settled that all disgruntled citizens do not automatically have standing to sue a public body. "Traditionally, a private citizen has no standing to vindicate a public wrong or enforce a public right where he is not hurt in any manner differently than the citizenry at large.” Waterford School Dist v State Bd of Ed, 98 Mich App 658, 662; 296 NW2d 328 (1980).
Likewise, plaintiffs’ membership in the fire fighters union does not singularly anoint them with standing to sue the defendant. Obviously the fire fighters union would like to see additional members added to their rosters, as undoubtedly would the police union, the clerical union, and the maintenance workers union, but this is not a sufficient interest to confer standing. In Saginaw Fire Fighters Ass’n Local No 422 v Police & Fire Dep’t Civil Service Comm, 71 Mich App 240; 247 NW2d 365 (1976), the Saginaw fire fighters union and the union president filed suit against the Saginaw Police and Fire Department Civil Service Commission seeking an injunction, preventing the commission from exercising a waiver-of-residency requirement for new recruits that would have given nonresidents an equal chance for the limited job opportunities. The Court held that the union demonstrated no special injury to its current membership and could not claim standing on the basis of speculative harm to future members. Id. at 244. In this case, none of the current Detroit fire fighters members lost their jobs as a result of the budget impoundment.
Plaintiff Detroit Fire Fighters Association alleged an increased risk of injury, emotional distress, and loss of morale and efficiency as a direct result of defendants’ impoundment of budgeted monies. These allegations were supported by expert testimony offered by plaintiffs in an arbitration hearing, and offered as an appendix to plaintiffs’ pleadings in these various proceedings. It is these general, "inter alia” allegations on which plaintiffs rely to demonstrate that they will be detrimentally harmed in a manner different from the citizenry at large. These general allegations of harm, coupled with their membership in a trade organization, cause plaintiffs to believe they are entitled to standing under Muskegon Bldg & Construction Trades v Muskegon Area Intermediate School Dist, supra. Plaintiffs’ belief is misplaced.
In Muskegon Trades, the plaintiffs were an association of trade organizations who filed suit to prevent the defendant school district from receiving bids or awarding contracts that did not require payment in conformity with the prevailing wage act. The plaintiffs argued that although their members did hot have a right to be awarded the bids or contracts, substantial numbers of these workers would be affected differently than the general public in that many would receive jobs on the school project, and would be paid at less than prevailing wages. The defendant school district impliedly conceded that the plaintiffs would be harmed in a manner different from the general public when it did not raise the argument as an issue to standing. Instead, the school district raised three other arguments against plaintiffs having standing: that as an association of trade organizations plaintiffs were incapable of being employed, that the associations’ statements of corporate purpose did not indicate they were formed to act as class representatives in litigation, and that none of the individual members of the organizations had a right to a job on the defen dant’s project. The Court in Muskegon found none of the school district’s arguments persuasive, and held that the trade organization did demonstrate an adverse effect, separate from the general public, specifically, if the prevailing wage act was upheld, substantial numbers of the association’s members would receive jobs on the school district building project. This was distinctly and wholly separate from any interest of the general public.
Defendants, on the other hand, believe the appellate decision in Rayford v Detroit, 132 Mich App 248; 347 NW2d 210 (1984) is controlling. In Rayford, plaintiff police officers attempted to bring suit under the ubaa after they lost their jobs as a result of a budget cutback instituted by the mayor without prior city council approval. The Court held that the purpose of the ubaa was "to promote uniform budgets and avoid deficit spending, not to afford security of employment,” id. at 257, and found that plaintiffs lacked standing to sue under the ubaa. Though this reasoning is persuasive, it is not controlling. Factually the cases are dissimilar in that the instant case involves the Detroit City Charter, not the ubaa. Where the ubaa was designed exclusively to aid municipalities in their accounting, the Detroit City Charter is a very broad document, favoring a "strong mayor” form of government, and encompassing the "comprehensive home rule power conferred upon it by the Michigan Constitution . . . .” Detroit Charter, art 1, § 1-102. The potential areas of conflict that could arise under the charter, and that could conceivably injure a private individual in a manner different from the general public are not so remote as to be easily disposed of by this Court. The key inquiry should be whether the individual can show injury distinct from the general citizenry.
Contrast the harm suffered by plaintiffs in Muskegon Trades with one presently before the Court. Plaintiff fire fighters allege that they will suffer increased risk of death and risk of serious physical injury. As the Court of Appeals noted:
[T]his increased likelihood of physical injury is not unlike the general public’s increased likelihood of physical injury due to the lack of fire fighters. That is, it is more likely that a fire fighter who fights two hundred fires annually will be hurt than the same fire fighter who fights one hundred fires annually if only because that fire fighter is more often put at risk. But people occupying buildings that catch on fire are more likely to be injured when there are fewer fire fighters available to put out the fires. Both segments of society are at greater risk when there is a dearth of fire fighters. [199 Mich App 132-133.]
Though plaintiffs protest to this Court that the appellate ruling is an "extraordinary assertion” of probabilities, it is a logical one. We find that the harm claimed by plaintiffs is no different than that to be suffered by the general public.
hi
Although the plaintiffs have no standing to bring this action, we choose to address the substantive issue presented because it is significant to the public and likely to reoccur. In re Ford, 187 Mich App 452, 454; 468 NW2d 260 (1991). Therefore, we will consider whether the executive branch of the Detroit city government may unilaterally impound $750,000 appropriated by the Detroit City Council for an additional fire squad.
Generally, a mayor has only that authority which is expressly or impliedly conferred upon him by charter or by the council acting within the scope of the charter. 3 McQuillin, Municipal Corporations (3d ed rev), § 12.43, p 249. Neither the Detroit City Charter nor the ubaa grant the mayor express authority to refuse to spend monies appropriated by the city council for a specific purpose. "[T]he common council of the city of Detroit [and likewise the mayor] must act strictly within the powers granted to it in the charter.” Thompson Scenic R Co v McCabe, 211 Mich 133, 139; 178 NW 662 (1920).
Appropriations generally cannot be diverted to any other purpose except as provided by statute or charter. 15 McQuillin, Municipal Corporations (3d ed rev), § 39.69, p 233. The Detroit City Charter permits two methods by which to amend the budget after its adoption, neither of which were complied with here. Detroit City Council v Stecher, 430 Mich 74, 83; 421 NW2d 544 (1988). Section 8-210 addresses amendments made because of surpluses in revenues or public emergency. Section 8-211 concerns transfers of appropriations that may be made by the council upon written request of the mayor. To amend the budget, the mayor must invoke either of these sections, both of which require the joint action of the mayor and the Detroit City Council.
Thus, the Detroit City Charter contemplates a separation of powers between the executive branch —the mayor — and the legislative branch — the city council — in addressing budgetary concerns. In Stecher, supra, the Court recognized the separation of powers set forth in the charter as not being inconsistent with the ubaa and precluded the city council from unilaterally amending the mayor’s proposals to effectuate a balanced budget. Stecher, supra at 90. Just as the city council cannot make unilateral changes in the budget, the mayor cannot single-handedly alter the city council’s appropriations. To allow the mayor such power would provide a means for circumventing the legislative branch and essentially render meaningless the powers and duties granted to the city council by charter.
Additionally, although- the executive branch is granted some discretion in the expenditure of appropriated funds, it possesses no inherent constitutional power to refuse to spend in the face of clear legislative intent and statutory directive. Int’l Union, United Automobile, Aerospace & Agri cultural Implement Workers of America, UAW, Local 6000 v Michigan, 194 Mich App 489, 501; 491 NW2d 855 (1992). Here, the ' city council clearly earmarked $750,000 of the appropriation to be used to fund an additional fire squad. Thus, the mayor may not use discretion as a guise for frustrating this intention. Id.
CONCLUSION
For the reasons stated, we would affirm the decision of the Court of Appeals with regard to the issue of standing and would reverse and remand on the substantive issue.
The trial court stated, "it seems to me that the Mayor and the City are not acting outside their authority in administering the budget as they do and I do not believe that they need to go back to Council to have Council concur when they do not spend the money.” Regarding the issue of standing, the trial court ruled, "I believe that the plaintiffs have the right to standing to bring this lawsuit, but I don’t believe the lawsuit itself is entitled to succeed.”
447 Mich 987 (1994).
Standing is a jurisdictional issue that concerns the power of a court to hear and decide a case and does not concern the ultimate merits of the underlying substantive issues of the action. Weiner v Bank of King of Prussia, 358 F Supp 684, 695 (ED Pa, 1973).
Plaintiffs’ expert, John Devine, is a former fire fighter and officer in the Washington D.C. Fire Department. Mr. Devine based a number of his statements on his perusal of a bulletin prepared in 1971 by the Detroit Fire Commission which recommended "squad companies,” such as those included in the budgeted monies at issue in the instant case. Mr. Devine agreed with the statement from the Fire Commission bulletin that adding squad companies, i.e. adding additional fire fighters, “would reduce the workload on the fire fighters.”
Plaintiffs’ alleged in their complaint that they would suffer "irreparable injury including, inter alia, increased risk of death and risk of serious physical injury; risk of serious emotional distress; and harm to morale and efficiency of plaintiff dffa’s members . . . .” See Kaminskas v Detroit, 68 Mich App 499; 243 NW2d 25 (1976), in which the Court held that broad-gauge, conclusory, "inter alia” allegations, without particularized assertions injuries in fact are not sufficient to confer standing in an action against public bodies and public officials. See also Menendez v Detroit, 337 Mich 476; 60 NW2d 319 (1953), in which the Court held that mere allegations of injury without specific facts showing actual injury or damage will not confer standing.
MCR 2.111(F)(2). Defenses must be pleaded.
Defendant relied on White Lake Improvement Ass’n v City of Whitehall, 22 Mich App 262, 271-274; 177 NW2d 473 (1970), in which the Court of Appeals held that although the association itself owned no property that was affected by the alleged nuisance, the sole purpose of the association was to represent the interests of its members, many of whom were riparian landowners on the subject lake.
Defendant school district cited Michigan Licensed Beverage Ass’n v Behnan Hall, Inc, 82 Mich App 319; 266 NW2d 808 (1978), in which the Court of Appeals found that the association’s statement of corporate purpose did not indicate that it was formed to act as a class representative in litigation, and thus could not assume that role.
Defendant school district’s authority was Kaminskas v Detroit, supra, in which associations representing city employees sought an injunction to prevent the city from hiring provisional employees, allegedly in violation of the city charter. The Court held that the associations failed to allege a specific injury to any of their members.
Interestingly, none of the pleadings indicate any specific instances of increased death, injury, emotional distress or loss of morale and efficiency, despite the passage of almost one year from the time the monies were impounded and the plaintiff's’ motion for summary disposition was heard by the trial court. The pleadings were amended once, in the interim, but not to include additional allegations of harm.
Sec. 8-210. Amendments after adoption.
1. If during the fiscal year the mayor advises the city council that there are available for appropriation revenues in excess of those estimated in the budget, the city council may make supplemental appropriations for the year up to the amount of the excess.
2. To meet a public emergency affecting life, health, property or the public peace, the city council may make emergency appropriations. To the extent that there are no available unappropriated revenues to meet those appropriations, the city council may authorize the issuance of emergency notes as provided by law, this charter or ordinance.
Sec. 8-211. Transfer of appropriations.
At any time during the fiscal year upon written request by the mayor, the city council may, by resolution, transfer all or part of any unencumbered appropriation balance among the programs, services or activities within an agency or from one agency to another.
Even if amending the budget for deficit reduction purposes, the mayor must still seek council approval under the city charter as well as the ubaa. Detroit City Council v Detroit Mayor, 202 Mich App 353, 355; 509 NW2d 797 (1993).
In Int’l Union, the Court of Appeals held that the Governor could not refuse to spend funds that had been specifically appropriated to the Department of Mental Health for Lafayette Clinic. Id. at 501-502.
Defendant argues that when the city council reorganized all appropriations to the fire department and renumbered the appropriation entitled "Fire Fighting Division Operations,” it failed to earmark any part of the appropriation as designated for an additional fire squad. The city council, however, never changed the amount allocated to "Fire Fighting Division Operations”; it only changed the number given to the appropriation from 0064 to 0718. Thus, it remains clear that the council intended $750,000 of the appropriation to be used for an additional fire squad. | [
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Riley, J.
In this case, we are called on to determine whether an automobile dealership that fails to verify the existence of a purchaser’s motor vehicle insurance remains liable, as an owner, for the negligent operation of that vehicle. Specifically, we must decide whether defendant Greenfield Jeep Eagle remained the owner of a 1989 Eagle Medallion when it sold the vehicle to Jerome Parker and failed to send a copy of Parker’s insurance coverage to the Secretary of State. We conclude that under the present Vehicle Code, defendant did not remain liable as an owner of the vehicle. While it is true that defendant was compelled to apply to the Secretary of State for a new certificate of title, it was not, under the law, required to verify Parker’s insurance coverage by sending a copy of his insurance for that vehicle. The Secretary of State transferred title, and defendant was removed from liability.
i
On September 1, 1988, John Griffin, a salesman for Greenfield Jeep Eagle, sold a 1989 Eagle Medallion to Jerome Parker. In accordance with general procedure, Parker signed an RD-108 Application for Title. On the application, Parker indicated Farmers Insurance Company as his no-fault carrier. This statement, however, was fraudulent. Neither Farmers nor any other company had insured this vehicle.
On September 8, 1988, the Secretary of State received the application. Within one day, the Secretary of State issued a certificate of title, a license plate, and a vehicle registration to Jerome Parker. Unfortunately, three days later, on September 10, 1988, Parker, while driving drunk, struck plaintiff Ruby Goins, causing her serious injury. She filed suit against Parker, and on October 4, 1989, was awarded a default judgment in the amount of $250,000. Goins, however, never collected on the judgment because Parker filed for bankruptcy in June of 1990.
On August 10, 1990, the instant lawsuit was filed in Wayne Circuit Court. Plaintiff alleged that defendant was the owner of the vehicle at the time of the accident and as a result was liable for her injuries. On March 27, 1991, defendant moved for summary disposition, which was granted. Plaintiff motioned for reconsideration, which was denied on May 14, 1991. Plaintiff then appealed as of right in the Court of Appeals, which reversed. Defendant petitioned this Court for leave to appeal, and the application was granted.
ii
Defendant was granted summary disposition in accordance with MCR 2.116(0(10), which provides, "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” It is well accepted that when reviewing such a motion, we "consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the party opposing the motion, and grant the benefit of any reasonable doubt to the opposing party.” Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993). The moving party is entitled to judgment as a matter of law only if there is no genuine issue of any material fact. Stevens v McLouth Steel Products Corp, 433 Mich 365; 446 NW2d 95 (1989).
We conclude that summary disposition was appropriate. Defendant’s liability turns on whether it was the owner of the vehicle at the time of the accident. MCL 257.401; MSA 9.2101 provides:
The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of the motor vehicle whether the negligence consists of a violation of the provisions of the statutes of the state or in the failure to observe such ordinary care in the operation of the motor vehicle as the rules of the common law requires.
An "owner” is defined under MCL 257.37; MSA 9.1837 as:
(a) Any person, firm, association, or corporation renting a motor vehicle or having the exclusive use thereof, under a lease or otherwise, for a period that is greater than 30 days.
(b) Except as otherwise provided in section 401a, a person who holds the legal title of a vehicle.
(c) A person who has the immediate right of possession of a vehicle under an installment sale contract.
In Basgall v Kovach, 156 Mich App 323, 327; 401 NW2d 638 (1986), the Court of Appeals had an opportunity to interpret what is meant by the term "owner.”
Our Court has consistently held that the definition of owner as used in the Michigan Vehicle Code must be broadly construed to include persons who (1) have exclusive control over the vehicle for at least thirty days, (2) are named on the legal title of the vehicle, or (3) are conditional vendees, lessees or mortgagors with immediate right to possession. Peters v Dep’t of State Highways, 66 Mich App 560, 564-565; 239 NW2d 662 (1976). There may be several owners of a motor vehicle, within the meaning of the Michigan Vehicle Code, with no one owner possessing "all the normal incidents of ownership.” Messer v Averill, 28 Mich App 62, 65, n 2; 183 NW2d 802 (1970).
It is important to stress, however, that ownership is not cast in stone. It can be transferred. An automobile dealership can effectuate such a transfer by complying with the necessary steps provided in MCL 257.217(2); MSA 9.1917(2).
A dealer selling Or exchanging vehicles required to be titled, within 15 days after delivering a vehicle to the purchaser . . . shall apply to the secretary of state for a new title, if required, and transfer or secure registration plates and secure a certificate of registration for the vehicle ... in the name of the purchaser. . . . The purchaser of the vehicle . . . shall sign the application .... and other necessary papers to enable the dealer ... to secure the title, registration plates, and transfers from the secretary of state.
These transfers become official when either the application for title has been executed or the actual certificate of. title has been issued.
Upon the delivery of a motor vehicle and the transfer, sale, or assignment of the title or interest in a motor vehicle by a person, including a dealer, the effective date of the transfer of title or interest in the vehicle shall be the date of execution of either the application for title or the certificate of title. [MCL 257.233(5); MSA 9.1933(5).]
If a transfer is successful, then the dealer, as the previous owner, will be relieved of any liability associated with the use of that vehicle.
The owner of a motor vehicle who has made a bona fide sale by transfer of his title or interest and who has delivered possession of such vehicle and the certificate of title thereto properly endorsed to the purchaser or transferee shall not be liable for any damages thereafter resulting from negligent operation of such vehicle by another. [MCL 257.240; MSA 9.1940.]
In the instant case, the Court of Appeals examined the dealer’s actions in order to determine if a proper transfer occurred.
. Here, Jeep Eagle allegedly failed to comply with specific instructions in the dealer’s manual regarding retailing a new vehicle, improperly completed a required form, and submitted false information about an essential matter to the Secretary of State. The false information caused the Secretary of State to issue a title to Parker that it was prohibited from issuing under the statute. We believe the allegations in this case are sufficient to create a question of fact regarding whether the attempted transfer of title in this case actually transferred ownership of the vehicle from Jeep Eagle to Parker. Accordingly, summary disposition was improperly granted. [Unpublished opinion per curiam, issued September 22, 1993 (Docket No. 141584).]
A
With all respect, we are persuaded that the Court of Appeals came to the wrong conclusion. While it is true that "[t]he mandates of the Michigan Vehicle Code must be followed and our Courts have been adamant in their refusal to sanction anything less than strict compliance,” Messer, supra at 66, nowhere in the Vehicle Code is it required that a dealer verify the insurance coverage of a buyer or submit a copy of the purchaser’s insurance coverage. The no-fault act does require a purchaser to supply proof of insurance when receiving registration, but there is no 'mention that a dealer has such a responsibility.
An insurer, in conjunction with the issuance of an automobile insurance policy, as defined in section 3303, shall provide 2 certificates of insurance to each policyholder. The insurer shall mark 1 of the certificates as the secretary of state’s copy, which copy shall be filed with the secretary of state by the policyholder upon application for a vehicle registration. [MCL 500.3101a; MSA 24.13101(1).]
Plaintiff contends that defendant’s duty to supply a copy of the purchaser’s insurance coverage can be found in a manual that is issued by the Secretary of State to all automotive dealerships.
[T]he dealer must take the following to the Secretary of State branch office within 15 days after delivery of the vehicle:
(1) the completed rd-108.
(2) the m.c.o., assigned Certificate of Title, or other ownership document.
(3) proof of insurance, if a registration plate is being purchased.
(4) sales tax.
(5) title and registration fees.
Thus, plaintiff maintains that for proper title to have been issued by the Secretary of State, defendant had to submit a copy of the vehicle’s proof of insurance as required by this manual. In order for this requirement to have the force of law, however, it has to fall under the definition of a properly promulgated rule. As this Court said in Clonlara v State Bd of Ed, 442 Mich 230, 239; 501 NW2d 88 (1993), if a rule is properly promulgated, then it adopts the force and effect of law.
Rules adopted by an agency in accordance with the apa have the force and effect of law. They must be promulgated in accordance with the procedures set forth in the apa, and are not valid if those procedures are not followed. [Id.]
Specifically, a "rule” is defined as
an agency regulation, statement, standard, policy, ruling, or instruction of general applicability that implements or applies law enforced or administered by the agency, or that prescribes the organization, procedure, or practice of the agency, including the amendment, suspension, or rescission thereof, but does not include any of the following:
(h) A form with instructions, an interpretive statement, a guideline, an informational pamphlet, or other material that in itself does not have the force and effect of law but is merely explanatory. [MCL 24.207; MSA 3.560(107).]
The Secretary of State has the power to promulgate such rules.
The secretary of state may promulgate rules pursuant to Act No. 306 of the Public Acts of 1969, as amended, being sections 24.201 to 24.315 of the Michigan Compiled Laws, necessary to administer this act. [MCL 257.204(2); MSA 9.1904(2).]
MCL 24.246; MSA 3.560(146) specifically provides for the actual manner of promulgation.
Except for a rule processed pursuant to section 44(2), to promulgate a rule an agency shall file in the office of the secretary of state 3 copies of the rule bearing the required certificates of approval and adoption and true copies of the rule without the certificates. An agency shall not file a rule, except an emergency rule under section 48, until at least 10 days after the date of the certificate of approval by the committee or after the legislature adopts a concurrent resolution approving the rule. An agency shall transmit a copy of the rule bearing the required certificates of approval and adoption to the office of the governor at least 10 days before it files the rule.
Before such a rule can be adopted, notice must be given to the public.
Except as provided in section 44, before the adoption of a rule, an agency shall give notice of a public hearing and offer a person an opportunity to present data, views, questions, and arguments. The notice shall be given within the time prescribed by any applicable statute, or if none, in the manner prescribed in section 42(1). [MCL 24.241; MSA 3.560(141).]
A failure to follow these procedures, however, will prohibit a rule from having the force of law.
When promulgating rules, an agency must follow specified statutory procedures that include various notice and public hearing requirements. See MCL 24.231-24.264; MSA 3.560(131)-3.560(164). Failure to substantially comply with the procedural requirements renders the rule invalid. [Pyke v Dep’t of Social Services, 182 Mich App 619, 629; 453 NW2d 274 (1990).]
In the present case, the Secretary of State never properly promulgated the rules set forth in this manual. Moreover, there is no evidence that copies of it were filed with the Secretary of State or that notice was ever given. Because it was never properly promulgated as a rule, it could not have had the force of law. At best, the manual was merely "[a] form with instructions, an interpretive statement, a guideline, an informational pamphlet, or other material that in itself does not have the force and effect of law but is merely explanatory.” MCL 24.207(h); MSA 3.560(107)(h).
B
Hence, defendant’s failure to follow this non-promulgated requirement within the informational manuál did not prevent the transfer of ownership. This conclusion is further reinforced by the fact that "the courts have been reluctant to find lesser defects, even those involving statutory violations, fatal to the transfer of ownership.” Allstate Ins Co v Demps, 133 Mich App 168, 174; 348 NW2d 720 (1984). For example, in Schomberg v Bayly, 259 Mich 135; 242 NW 866 (1932), the Court found that a late filing of a certificate of title did not prevent the transfer of ownership even though it occurred beyond the statutorily required period. In that case, an automotive dealership sold a used car on May 27, 1923, without its certificate of title. On June 20, the dealer received the certificate of title and filed it with the Secretary of State. Four days later, the vehicle was involved in an accident that injured the plaintiff. The plaintiff claimed that the transfer by the dealer was invalid because the certificate of title was not transferred within the required ten-day period. This Court found for the defendant, stating that substantial compliance with the transfer requirements had occurred so as to effectuate the transfer.
Such delivery direct to the secretary of State, instead of to the purchaser, accomplished the statutory purpose, and was substantial, if not literal, compliance with the law. . . .
If the sale of a motor vehicle is otherwise effected, title thereto passes, and the sale becomes fully consummated, upon delivery of the certificate of title properly executed. Until delivery of the assigned certificate, title does not pass, and no sale results; but delivery of the certificate of title properly assigned, notwithstanding such delivery is belated, passes title and consummates the sale. [Id. at 138-139.]
In Long v Thunder Bay Mfg Corp, 86 Mich App 69; 272 NW2d 337 (1978), the defendant delivered a motor vehicle with an assignment of title, but failed to remove the license plates as required by statute. The vehicle was then involved in an accident. The plaintiff maintained that the defendant remained the owner of the vehicle because it had failed to remove the plates. The Court of Appeals held:
Defendant Thunder Bay Manufacturing Corporation made a bona fide sale to defendant Rice and delivered possession of the vehicle and the certificate of title properly endorsed. Therefore, under the statute, defendant Thunder Bay was not liable for damages resulting from negligent operation by another. [Id. at 70.]
Finally in Zechlin v Bridges Motor Sales, 190 Mich App 339; 475 NW2d 60 (1991), the Court of Appeals found that the improper registration of a vehicle did not prevent the transfer of ownership.
Under § 37, the vehicle’s registration does not implicate ownership. It is, in most instances, the transfer of title that signifies the transfer of vehicle ownership .... In other words, dealer compliance with the registration provisions of the Vehicle Code is not a sine qua non for transfer of ownership. [Id. at 342.]
Zechlin is particularly on point because the dealer manual, in the present case, only requires "proof of insurance, if a registration plate is being purchased.” Because complete compliance with the actual registration provisions of the Vehicle Code is not required for the transfer of ownership, we conclude that compliance with an informational manual need not be compelled.
While ownership was found to transfer in Schomberg, Long, and Zechlin, it has been found to not transfer in others. In Gazdecki v Cargill, 28 Mich App 128, 131; 183 NW2d 805 (1970), the Court held that ownership did not transfer where a car had been sold and delivered, but no change in title had been filed.
The issue, as framed, requires this Court to determine if the title of an automobile passes from a licensed automobile dealer to a prospective purchaser, where the dealer has received only a deposit on the automobile, delivers the auto with the dealer plates attached, and with no written evidence of sale.
The trial court’s interpretation — holding that the legal title of the automobile passed on delivery of the vehicle — was in error. Something more must be done by an automobile dealer to transfer ownership of an automobile to a prospective purchaser.
Similarly, in Basgall, supra, title was never formally changed. In that case, a woman divorced her husband, and, as part of the divorce settlement, the husband was awarded the car that they both owned. The certificate of title for this vehicle, however, was never changed. Thus, both' their names remained on the title. This car was then involved in an accident, and the plaintiff named the woman in the suit. She argued that she should be removed from the suit because she no longer owned the vehicle. The Court, however, found that a proper transfer never occurred even though the divorce judgment was entered.
Defendant admits that she failed to transfer title to her former husband following entry of the divorce judgment. We thus conclude that the trial court erred as a matter of law in finding that defendant was not an owner of the 1979 Monza under the Michigan Vehicle Code. [Id. at 327.]
In Michigan Mut Ins Co v Reddig, 129 Mich App 631, 635; 341 NW2d 847 (1983), the Court found that a sale of a motor vehicle without an accompanying certificate of title prevented a valid transfer of the vehicle.
Consequently, we hold that, at the time of the accident, a sale of a motor vehicle which did not include a transfer of the certificate of title as required by the statute was void. Under such circumstances, the seller remained the owner..
Gazdecki, Basgall, and Reddig all demonstrate how important the transfer of title is to the transfer of ownership. Title transfers when there has been an "execution of either the application for title or the certificate of title.” MCL 257.233(5); MSA 9.1933(5). In the present case, both occurred. The application for title was executed when defendant sent the necessary forms to the Secretary of State, and the certificate of title was executed when the Secretary of State issued a new certificate in the purchaser’s name. Thus, if a failure to follow the Motor Vehicle Code in a situation like this would not prevent the transfer of ownership, then the failure to follow the instructional manual is not sufficient either. Title was transferred and defendant no longer remained liable as the owner of the vehicle.
CONCLUSION
The -Court of Appeals erred when it found that defendant was the owner of the vehicle at the time of the accident. The Motor Vehicle Code simply requires a dealer to fill out the proper application for a certificate of title and to submit it to the Secretary of State within fifteen days. In the present case, defendant performed all these acts within the requisite amount of time, and the Secretary of State issued a certificate of title, registration, and license plate to the purchaser. Although defendant did not verify Parker’s insurance coverage by acquiring and sending a copy of his insurance certificate, this act was simply not required under the Vehicle Code. While the manual requires a dealer to submit a copy of the purchaser’s insurance to the Secretary of State, it was never properly promulgated and did not have the force of law. Thus, we conclude that there was no genuine issue with respect to defendant’s liability. We reverse the Court of Appeals decision and reinstate the trial court’s grant of summary disposition for defendant.
Brickley, C.J., and Levin, Cavanagh, Boyle, Mallett, and Weaver, JJ., concurred with Riley, J.____
Unpublished opinion per curiam, issued September 22, 1993 (Docket No. 141584).
447 Mich 1013 (1994).
Moreover, because many statutory violations of the Vehicle Code have been found not to prevent the transfer of ownership, we are persuaded that this violation of a purely informational manual did not prevent the transfer either. | [
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Cavanagh, J.
In this case, we are asked to determine whether plaintiffs can maintain a tort action where plaintiffs’ asserted injuries arose out of illegal conduct on the part of one of the plaintiffs, the plaintiff’s culpability is equal to the defendant’s and the plaintiff’s alleged entitlement to recovery is not provided for under the statutes claimed to have been violated by the defendant. We hold that, under such circumstances, the plaintiffs are precluded from bringing their action.
In this case, we have also been asked to articulate the scope of a pharmacist’s duty when filling prescriptions issued by licensed physicians. Because of our holding, any comment that we would make regarding a pharmacist’s duty would be dicta. While we consider the issue to be jurisprudentially significant, we also believe that our examination of it is best reserved for a case in which our discussions would carry binding precedential effect. Accordingly, we decline to address the issue at this time.
In view of our holding barring the plaintiffs’ claim on the basis of illegal conduct, we reverse the decision of the Court of Appeals, and affirm the order of the trial court granting the defendant judgment notwithstanding the verdict.
I. FACTS AND PROCEDURAL HISTORY
The plaintiffs, John Orzel and his relatives, filed this suit in 1983 against several defendants, claiming that each defendant negligently supplied the drug Desoxyn to John Orzel. Desoxyn, a trade name for the chemical methamphetamine, is a schedule 2 controlled substance, and; accordingly, may be lawfully obtained only with a valid pre scription. In their complaint, the plaintiffs asserted that the defendant’s negligence caused John Orzel to suffer the following damages:
John J. Orzel became physically and psychologically addicted to Desoxyn which said addiction resulted in auditory and visual hallucinations and mental illness including but not limited to paranoid schizophrenia. As a result of mental derangement and illness, plaintiff has sustained pain, suffering and disability including loss of earning capacity and has required medical aid and attention and hospital care and treatment.
The plaintiffs contend that these injuries are permanent in nature. The plaintiff relatives, further claim that the injuries cause them to experience a loss of companionship and to incur numerous medical expenditures.
When trial finally commenced in 1988, Scott Drug, was the only remaining defendant. The plaintiffs had claimed that this defendant pharmacy had breached common-law and statutory duties owed to John Orzel when it filled Desoxyn prescriptions for him without asking for identification or allowing an adequate interval between prescriptions, and where the prescriptions read for purposes of "weight control,” when they allegedly should have said "obesity.” _
In his deposition, John Orzel explained that his use of Desoxyn did not begin the first time that the defendant filled a Desoxyn prescription for him. Sometime between 1979 and 1980, he began to use Desoxyn purchased from his co-workers at General Motors. By November 1980, he was taking one to two Desoxyns a day. By January 1981, he had increased his intake to three to five Desoxyns a day. By March 1981, he began to hear voices, experience hallucinations, and suffer from paranoid delusions because of the Desoxyn use. By April 1981, he raised his Desoxyn consumption to five to six Desoxyns a day. By May 1981, his use had escalated to five to eight Desoxyns a day. By June 1981, he was consuming eight to ten Desoxyns a day. In July 1981, he was forced to take a medical leave from his job at General Motors.
John Orzel testified that he knew that his purchase and use of Desoxyn was illegal. He also indicated that he was addicted to Desoxyn by July 1981. The plaintiffs additionally contend that by July 1981, John Orzel was no longer taking Desoxyn voluntarily, and that he was suffering from amphetamine psychosis to the point of being rendered legally insane so that he could not conform his conduct to the requirements of law.
In August 1981, John Orzel started going to the Figure Eight Weight Loss Clinic one to three times a week. There he would misrepresent to the physicians that he desired to lose weight, and the physicians would write him Desoxyn prescriptions for "weight control.” It is uncontested that he never wanted or needed to lose weight, and that the only reason he went to the clinic was to obtain Desoxyn.
The defendant filled Desoxyn prescriptions for John Orzel, allegedly beginning in August 1981, and ending in January 1982. According to the evidence presented at trial, the defendant filled a total of between six to nine Desoxyn prescriptions for him, and each prescription was for a medically acceptable one month’s supply of thirty tablets.. Consequently, in total, John Orzel obtained between one hundred eighty to two hundred seventy Desoxyn tablets from the defendant. Each prescription that John Orzel presented to the defendant had been signed by a licensed physician.
John Orzel testified that during the period that defendant was filling Desoxyn prescriptions for him, August 1981 to January 1982, he was also obtaining Desoxyn from other sources. He would have some of his prescriptions from Figure Eight filled by other pharmacies. He also continued to purchase Desoxyn from his General Motors coworkers. He testified that, at his peak, he was using between ten to fifteen Desoxyns a day between August 1981, and January 1982.
In January 1982, he entered Northville Mental Hospital where he stayed until April 1982! Shortly after his discharge, he resumed his use of controlled substances, including the use of Desoxyn. No longer able to obtain prescriptions for Desoxyn, he purchased and used Desoxyn from street sources. John Orzel’s persistent use of controlled substances has resulted in further hospitalization on several occasions.
Dr. Finklestein, a psychiatrist and psychoanalyst who examined John Orzel in 1983, testified that he suffers from amphetamine psychosis, and that he is. "insane,” "mentally ill,” and "obviously crazy, in the usual sense of the word.” Dr. Finklestein attributed this psychosis to the heavy dosages of Desoxyn that John Orzel took in 1981, and opined that any subsequent drug use rendered him merely harder to treat.
Dr. Griffith, a psychiatrist who examined John Orzel in August 1986, testified that he suffers from paranoid schizophrenia induced by his Desoxyn consumption. Dr. Griffith explained that, although John Orzel was genetically predisposed to schizophrenia, the large doses of Desoxyn caused the onset of his schizophrenia.
The defendant made several motions to have this case summarily dismissed. Before trial, it filed two motions for summary disposition in which it disclaimed the plaintiffs’ allegations that it had breached duties to John Orzel in the way that it filled the Desoxyn prescriptions for him. The trial court denied both motions. A few days before the scheduled trial date, it was determined that John Orzel was competent to be deposed. During a deposition held shortly thereafter, he testified regarding the complete history of his illegal transactions with Desoxyn. In response to this testimony, the defendant immediately renewed the motion for summary disposition — but this time adding an argument that, notwithstanding any breach it may have committed, the plaintiffs were precluded from any recovery because of John Orzel’s illegal conduct in connection with Desoxyn. The trial judge took this motion, as well as a subsequent similarly based motion for a directed verdict, under advisement.
Without ruling on the motions, the trial judge instructed the jury to apply comparative negligence principles to determine the extent of each party’s responsibility for the damages, if any. The jury found the defendant negligent, and assessed plaintiffs’ damages at $3.8 million. The jury also found John Orzel to be fifty percent comparatively negligent, and the verdict was reduced to $1.9 million.
The defendant moved for judgment notwithstanding the verdict, and the trial judge granted the motion on the basis that John Orzel’s illegal acts barred the plaintiffs’ claim.
A Court of Appeals majority reversed the trial court in an unpublished opinion per curiam, issued December 14, 1993 (Docket No. 117270). The majority opined that John Orzel’s illegal conduct should not operate to bar the plaintiffs’ claim and that comparative negligence principles should apply to' determine the extent of their potential recovery. Alternatively, the majority indicated that, even assuming John Orzel’s illegal conduct would normally operate to bar recovery, the bar could not apply in this case because evidence showing that John Orzel was insane at the time that he committed his illegal acts made him unaccountable for the acts.
Dissenting, Judge Kathleen Jansen believed that John Orzel’s illegal conduct blocked the plaintiffs’ action. She also questioned his alleged insanity status in light of the legal standard for insanity under MCL 768.21a(l); MSA 28.1044(1X1).
The defendant sought leave to appeal in this Court, which we granted. 447 Mich 1007 (1994).
II. STANDARD OF REVIEW FOR JUDGMENT NOTWITHSTANDING THE VERDICT
The standard of review for judgments notwithstanding the verdict requires review of the evidence and all legitimate inferences in the light most favorable to the nonmoving party. Wads- worth v New York Life Ins, 349 Mich 240; 84 NW2d 513 (1957); Schutte v Celotex Corp, 196 Mich App 135; 492 NW2d 773 (1992). Only if the evidence so viewed fails to establish a claim as a matter of law, should a motion for judgment notwithstanding the verdict be granted. Id.
III. ACTIONS BASED ON A PLAINTIFF ’S ILLEGAL CONDUCT
A. THE WRONGFUL-CONDUCT RULE
When a plaintiff’s action is based, in whole or in part, on his own illegal conduct, a fundamental common-law maxim generally applies to bar the plaintiff’s claim:
[A] person cannot maintain an action if, in order to establish his cause of action, he must rely, in whole or in part, on an illegal or immoral act or transaction to which he is a party. [1A CJS, Actions, § 29, p 386. See also 1 Am Jur 2d, Actions, § 45, p 752.]
When a plaintiff’s action is based on his own illegal conduct, and the defendant has participated equally in the illegal activity, a similar common-law maxim, known as the "doctrine of in pari delicto” generally applies to also bar the plaintiff’s claim:
[A]s between parties in pari delicto, that is equally in the wrong, the law will not lend itself to afford relief to one as against the other, but will leave them as it finds them. [1A CJS, Actions, § 29, p 388. See also 1 Am Jur 2d, Actions, § 46, p 753.]
We shall refer to these maxims collectively as the "wrongful-conduct rule.” Michigan courts have long recognized the existence of the wrongful- conduct rule. See Lichon v American Universal Ins Co, 435 Mich 408; 459 NW2d 288 (1990); Miller v Radikopf, 394 Mich 83; 228 NW2d 386 (1975); Manning v Bishop of Marquette, 345 Mich 130; 76 NW2d 75 (1956); Cook v Wolverine Stockyards Co, 344 Mich 207; 73 NW2d 902 (1955); Budwit v Herr, 339 Mich 265; 63 NW2d 841 (1954); Piechowiak v Bissell, 305 Mich 486; 9 NW2d 685 (1943); Ohio State Life Ins Co v Barron, 274 Mich 22; 263 NW 786 (1935); Garwols v Bankers Trust Co, 251 Mich 420; 232 NW 239 (1930); McDonald v Hall, 193 Mich 50; 159 NW 358 (1916); Pantely v Garris, Garris & Garris, PC, 180 Mich App 768; 447 NW2d 864 (1989); Glazier v Lee, 171 Mich App 216; 429 NW2d 857 (1988); Imperial Kosher Catering, Inc v Travelers Indemnity Co, 73 Mich App 543; 252 NW2d 509 (1977).
The rationale that Michigan courts have used to support the wrongful-conduct rule are rooted in the public policy that courts should not lend their aid to a plaintiff who founded his cause of action on his own illegal conduct. Manning at 133. Glazier at 220. If courts chose to regularly give their aid under such circumstances, several unacceptable consequences would result. First, by making relief potentially available for wrongdoers, courts in effect would condone and encourage illegal conduct. Radikopf at 89. Second, some wrongdoers would be able to receive a profit or compensation as a result of their illegal acts. Third, and related to the two previously mentioned results, the public would view the legal system as a mockery of justice. Fourth, and finally, wrongdoers would be able to shift much of the responsibility for their illegal acts to other parties. As stated by the Court of Appeals, where the plaintiff has engaged in illegal conduct, it should be the "plaintiff’s own criminal responsibility which is determinative.” Glazier at 221.
Notwithstanding these compelling reasons for applying the wrongful-conduct rule in all cases in which the plaintiff’s claim is based on his illegal conduct, the wrongful-conduct rule is a general rule, and, like all general rules, it has its limitations and exceptions.
B. NATURE OF WRONGFUL CONDUCT
The mere fact that a plaintiff engaged in illegal conduct at the time of his injury does not mean that his claim is automatically barred under the wrongful-conduct rule. To implicate the wrongful-conduct rule, the plaintiff’s conduct must be prohibited or almost entirely prohibited under a penal or criminal statute. Cases in which the wrongful-conduct rule has been applied include: Radikopf (illegal lottery); Manning (trespass and gambling); Cook (illegal contract); Budwit (murder); Piechowiak (embezzlement); Ohio State Life Ins Co (murder); Garwols (murder); McDonald (illegal contract); Pantely (perjury); Glazier (murder); Imperial Kosher Catering (arson).
In contrast, where the plaintiff’s illegal act only amounts to a violation of a safety statute, such as traffic and speed laws or requirements for a safe workplace, the plaintiff’s act, while illegal, does not rise to the level of serious misconduct sufficient to bar a cause of action by application of the wrongful-conduct rule. See Klanseck v Anderson Sales, 426 Mich 78; 393 NW2d 356 (1986) (the plaintiff violated the motorcycle licensing statute); Longstreth v Gensel, 423 Mich 675; 377 NW2d 804 (1985) (minor plaintiff violated the statute prohibiting driving while under the influence of alcohol); Zeni v Anderson, 397 Mich 117; 243 NW2d 270 (1976) (the plaintiff violated the statute requiring pedestrians to walk on the sidewalk, or if there is no sidewalk, on the left side of the highway facing traffic); Massey v Scripter, 401 Mich 385; 258 NW2d 44 (1977) (the plaintiff violated the statute requiring bicycle riders to ride on the right side of the road); Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich 29; 323 NW2d 270 (1982) (the plaintiff violated the labor safety statute). Accord Prosser & Keeton, Torts (5th ed), § 36, p 232; Schwartz, Comparative Negligence (3d ed), § 6-3, p 145; Woods, Comparative Fault (2d ed), § 10:5, p 212.
John Orzel’s illegal conduct is of the type that warrants application of the wrongful-conduct rule. By his own admissions, as well as that of his counsel, he repeatedly violated several provisions of the controlled substances act when he obtained, possessed, and used Desoxyn without a valid prescription. The significant degree of harm and punishment associated with such violations, as well as the number of times that he committed them, makes his conduct distinguishable from a violation of a safety statute.
Under the controlled substances act, transactions involving controlled substances are almost entirely prohibited. Improper use of a controlled substance on just one occasion can have a substantially detrimental, and possibly even permanent, effect on the health of the' user. Illegal possession and use of controlled substances may also produce widespread social loss and lead to further criminal acts. The case of John Orzel stands as a testament to the destruction that can result when the provisions of the controlled substances act are violated.
Illegal acquisition, possession, and use of controlled substances carry heavy punishments. The acquisition of a controlled substance by misrepresentation is a felony; illegal possession of a schedule 1 or 2 controlled substance in an amount less than twenty-five grams of any mixture containing, that controlled substance is also a felony; and the illegal use of a controlled substance is a misdemeanor punishable by imprisonment up to one year, or a fine up to $2000, or both. John Orzel’s illegal conduct is even more egregious because he violated these provisions not just once, but repeatedly. Because his illegal acts constitute serious illegal conduct, application of the wrongful-conduct rule is appropriate in this case.
C. CAUSATION REQUIREMENT
Another important limitation under the wrongful-conduct rule involves causation. For the wrongful-conduct rule to apply, a sufficient causal nexus must exist between the plaintiff’s illegal conduct and the plaintiff’s asserted damages.
The maintenance of an action, under the general rule, may be refused or precluded only where the illegality or immorality with which plaintiff is chargeable has a causative connection with the particular transaction out of which the alleged cause of action asserted arose.
The fact that a person has been guilty of a wrong in one particular does not make him an outlaw or forfeit his right to legal protection and relief in regard to others, and does not preclude him from maintaining an action based on a separate transaction, as, where the original wrongdoing is consummated, and unrelated to the later and independent wrongdoing of the defendant
An action may be maintained where the illegal or immoral act or transaction to which plaintiff is a party is merely incidentally or collaterally connected with the cause of action, and plaintiff can establish his cause of action without showing or having to rely upon such act or transaction although the act or transaction may be important as explanatory of other facts in the case .... [1A CJS, Actions, § 30, pp 388-389.]
This Court incorporated the causation requirement into Michigan’s wrongful-conduct rule in Manning. There, the plaintiff, Mrs. Manning, filed a negligence action against a premises owner after she had fallen into a hole located on the premises, and suffered injury. Also located on the premises was a church where Mrs. Manning had been engaged in an illegal bingo game. It was after the bingo game had ended, and as she was leaving the premises, that Mrs. Manning fell into the hole. The defendant appeared to have been clearly negligent in its failure to maintain the premises in a reasonably safe condition. Nonetheless, the defendant argued that the plaintiff was not entitled to any recovery because of her participation in the illegal bingo game.
This Court rejected the defendant’s argument, explaining that, absent a showing that the plaintiff’s illegal conduct was a proximate cause of the plaintiff’s injuries, the wrongful-conduct rule could not apply to bar a plaintiff’s claim.
"[The plaintiff’s] injury must have been suffered while and as a proximate result of committing an illegal act. The unlawful act must be at once the source of both his criminal responsibility and his civil right. The injury must be traceable to his own breach of the law and such breach must be an integral and essential part of his case. Where the violation of law is merely a condition and not a contributing cause of the injury, a recovery may be permitted.” [Manning at 136, quoting Meador v Hotel Grover, 193 Miss 392, 405-406; 9 So 2d 782 (1942).]
Applying this causation requirement to the facts, the Court concluded that the wrongful-conduct rule did not apply, and that Mrs. Manning could proceed in her negligent action notwithstanding her illegal conduct. The Court emphasized that Mrs. Manning’s participation in the illegal bingo game had ended by the time she fell into the hole. Further, the Court indicated that it did not consider the prior illegal bingo game to have been "a substantial causal factor” with regard to the plaintiff’s injuries.
Application of the causation requirement to the facts in the instant case does not lead to the same result as in Manning. The plaintiffs do not dispute that the illegal conduct that John Orzel engaged in at the time he dealt with the defendant was at least a proximate cause of his asserted injuries. However, the plaintiffs argue that John Orzel’s illegal conduct cannot be considered for purposes of the wrongful-conduct rule because his illegal conduct was excused in that he was insane during the time that he dealt with the defendant. To support their insanity excuse theory, the plaintiffs rely on our opinion in Ohio State Life Ins Co v Barron, in which we approved a rule that would allow a plaintiff to pursue a cause of action based in part on a homicide committed by the plaintiff, if the plaintiff was shown to have been legally insane at the time he committed the homicide.
In view of all the facts in this case, we do not find it necessary to decide whether John Orzel was actually legally insane so that he could not be held criminally responsible for his actions. Nor do we find it necessary to determine whether the insanity-excuse exception highlighted in Ohio State Life Ins applies to illegal conduct other than homicides for purposes of the wrongful-conduct rule. Proceeding on the assumption that John Orzel did at some point become legally insane, and that such insanity would excuse the illegal acts he committed while insane, we are still able to conclude that his illegal acts, committed while he was sane, proximately caused his damages.
Under Michigan negligence jurisprudence, it is not necessary to show that a party’s conduct was "the” proximate cause of the injuries — showing that the party’s conduct was "a” proximate cause of the injuries is sufficient. Dedes v Asch, 446 Mich 99, 116; 521 NW2d 488 (1994). A review of the facts in this case makes clear that the illegal conduct that John Orzel engaged in while he was sane served as "a” proximate cause of his asserted injuries.
It is uncontested that John Orzel was sane when he first began to illegally purchase and use Desoxyn in November 1980. It was while he was sane that he decided to escalate his purchase and use of Desoxyn. The escalation continued quickly over the next several months, to the point that he became addicted to Desoxyn, and suffered hallucinations, amphetamine psychosis, and eventually, legal insanity. Dr. Griffith testified that it was John Orzel’s amphetamine psychosis that precipitated the onset of his paranoid schizophrenia. "[Addiction] to Desoxyn,” "hallucinations and mental illness including but not limited to paranoid schizophrenia,” and the pain, suffering, and monetary losses resulting from these conditions, comprise the list of the injuries set forth in the plaintiffs’ complaint. The chronology of John Orzel’s use of Desoxyn while he was sane makes plain that his illegal use during that time was the direct, immediate, and necessarily proximate cause of his addiction to Desoxyn, his hallucinations, and his mental illness — at least to the extent of being considered legally insane. With regard to any further asserted injuries, we find that John Orzel’s transactions with Desoxyn while he was sane are necessarily a proximate cause of those injuries as well.
Plaintiffs cannot be heard to argue that the causal relationship between John Orzel’s injuries and his use of Desoxyn while he was sane was too remote or incidental to be considered a proximate cause of his injuries. Under the plaintiffs’ insanity theory, John Orzel’s excessive use of Desoxyn while he was sane was sufficient to make him legally insane. Furthermore, plaintiffs argue that Orzel’s use of Desoxyn while he was insane directly and immediately led to injuries other than addiction, hallucination, and any mental illness beyond legal insanity. In our opinion, these two facts lead to the conclusion that his use of Desoxyn while he was sane was a proximate cause of these injuries. John Orzel’s use of Desoxyn while he was sane cannot be characterized as a separate transaction from his use while he was insane, because his initial consumption of the drug inevitably led to this subsequent use while he was insane. Consequently, any injuries that are a direct result of his use while he was insane are also foreseeable consequences of his use while he was sane.
The plaintiffs inadvertently concede the significant causal relationship between John Orzel’s use of Desoxyn while he was sane and his injuries insofar as they cannot establish their cause of action without relying on it: John Orzel’s use of Desoxyn while he was sane directly and proximately caused the insanity that the plaintiffs insist excuses portions of his illegal conduct, and, in turn, precludes application of the wrongful-conduct rule. In other words, John Orzel’s use of Desoxyn while he was sane is an " 'integral and essential part of [the plaintiffs’] case.’ ” Manning at 136. Unlike the illegal bingo game in Manning, which merely served as an occasion for the injury asserted, John Orzel’s illegal conduct while he was sane serves as a proximate contributing cause of his asserted injuries. In sum, the causation limita tion under the wrongful-conduct rule is satisfied by the facts of this case.
D. DIFFERENT DEGREES OF CULPABILITY
An exception to the wrongful-conduct rule may apply where both the plaintiff and defendant have engaged in illegal conduct, but the parties do not stand in pari delicti. In other words, even though a plaintiff has engaged in serious illegal conduct and the illegal conduct has proximately caused the plaintiff’s injuries, a plaintiff may still seek recovery against the defendant if the defendant’s culpability is greater than the plaintiff’s culpability for •the injuries, such as where the plaintiff has acted " 'under circumstances of oppression, imposition, hardship, undue influence, or great inequality of condition or age ....’” Pantely at 775, quoting 1 Story, Equity Jurisprudence (14th ed), § 423, pp 399-400. See also 1A CJS, Actions, § 29, pp 386-388.
It is undisputed that both John Orzel and the defendant engaged in wrongful conduct. John Orzel’s conduct was wrongful because he repeatedly made misrepresentations to doctors in order to obtain prescriptions for Desoxyn, he repeatedly presented prescriptions to be filled when they were written on the basis of such misrepresentations, he repeatedly presented prescriptions to be filled when they were written for persons with names other than his own, and he repeatedly purchased and used Desoxyn that he obtained pursuant to the false prescriptions. The defendant filled many Desoxyn prescriptions for John Orzel, and, when it did, its conduct was seriously blameworthy. The defendant filled Desoxyn prescriptions for John Orzel without first confirming his identity, it filled the prescriptions too frequently, and it filled them for arguably illegitimate purposes.
In comparing John Orzel’s wrongful conduct with the defendant’s wrongful conduct, we conclude that the two wrongdoers are equally at fault. Both parties played pivotal roles in making the illegal acts possible, and we cannot say that one party is more guilty than the other. While the plaintiffs argue that John Orzel’s culpability is less than the defendant’s because of his alleged disability, we are not convinced. Even if we were to accept the plaintiffs’ characterization of John Orzel’s status as legally insane, that status does not prompt application of the culpability exception in this case because it was John Orzel who, by his continuous illegal use of Desoxyn, caused himself to become both addicted and insane. Certainly, we regard his status as a tragedy. However, because John Orzel is ultimately responsible for causing any "great inequality of condition” in the first place, we conclude it would be ináppropriate to apply the culpability exception under these facts.
E. STATUTORY BASIS FOR RECOVERY
The final relevant exception to the wrongful-conduct rule involves where the statute that the plaintiff alleges the defendant violated allows the plaintiff to recover for injuries suffered because of the violation. Statutes that permit certain classes of persons to recover do so either explicitly or implicitly. Where a statute explicitly authorizes persons similarly situated as the plaintiff to recover, then a problem does not arise, and the courts will simply permit the plaintiff to pursue his cause of action. Where the statute is silent regarding recovery, courts are left to infer whether the Legislature clearly intended persons similarly situated as the plaintiff to be entitled to seek recovery.
To determine whether a statute implies recovery for certain types of plaintiffs, courts often apply a test from the Second Restatement of Torts. The test has been referred to as the "statutory purpose doctrine.”
The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part
(a) to protect a class of persons which includes the one whose interest is invaded, and
(b) to protect the particular interest which is invaded, and
(c) to protect that interest against the kind of harm which has resulted, and
(d) to protect that interest against the particular hazard from which the harm results. [2 Restatement Torts, 2d, § 286, p 25.]
In Longstreth, we applied the statutory purpose doctrine to conclude that the particular plaintiffs were entitled to pursue a recovery for injuries resulting from the defendant’s violation of a statute. A minor died in an automobile accident after consuming alcohol at a private wedding reception. The minor’s parents filed an action against the social hosts, claiming that they had negligently violated § 33 of the Liquor Control Act, which prohibits furnishing alcohol to minors. Section 33 was a penal statute and did not specifically indicate whether a violation of its provisions would entitle certain injured persons to civil remedies. A majority of this Court held that minors, or their representatives, were entitled to seek recovery from social hosts when the social hosts violated § 33 and caused the minors to suffer injury.
The decisive factor in the majority’s analysis was its determination that a minor "clearly falls within the class of persons which [§ 33 of the Liquor Control Act] intends to protect.” Longstreth at 696. To make this determination, the majority examined the legislative history and public policy surrounding § 33. The majority considered as significant the fact that both the Legislature (through § 33) and the people (through Const 1963, art 4, § 40) had specifically and consistently excepted minors from persons legally entitled to drink alcohol. These actions demonstrated that both the Legislature and the people unequivocally believed that minors were unable to protect themselves from the effects of alcohol, and intended legislation that would specifically so protect them. Given this strong showing of legislative and popular intent, the majority was able to decide that minors "clearly” fell within the class of persons that § 33 was designed to protect. Having also found that all the other factors under the statutory purpose doctrine had been satisfied, it concluded that underage plaintiffs, or their representatives, could seek civil remedies for violations of § 33.
When we apply the statutory purpose doctrine in the instant case, we are unable to similarly conclude that the plaintiffs are entitled to pursue civil remedies for the alleged statutory violations. The plaintiffs base their negligence claim in part on the defendant’s alleged violation of provisions of the Public Health Code that address pharmacists’ duties regarding controlled substances. Specifically, the plaintiffs claim that the defendant violated MCL 333.17759; MSA 14.15(17759) when it allegedly failed to maintain records of the prescription drugs it dispensed to John Orzel, and that it violated MCL 333.16221(c)(iv); MSA 14.15(16221)(c)(iv) when it allegedly dispensed Desoxyn for illegitimate purposes. The plaintiffs claim that they are entitled to a recovery for such violations.
The plaintiffs further argue that recent amendments of health code provisions dealing with pharmacists demonstrate the Legislature’s policy determination that plaintiffs like John Orzel are entitled to a civil remedy from a pharmacist for such violations. The amendments of MCL 333.17763; MSA 14.15(17763) and MCL 333.17768(1); MSA 14.15(17768)(1) expand the types of penalties that health professional disciplinary subcommittees can impose on licensed health care professionals who violate certain provisions of the health code, including allowing a subcommittee to "order restitution.”
We find that the instant plaintiffs are not entitled to a recovery because we are not convinced that plaintiffs like John Orzel "clearly” fall within the class of persons that the allegedly violated statutes were devised to protect. In contrast to the consistent and affirmative evidence in Longstreth showing that both the Legislature and the people intended to include the minor plaintiffs within the protected class, we have found no evidence to suggest that the Legislature intended to confer special protection on persons like John Orzel, who repeatedly and fraudulently engage in the illicit use of drugs. Nor does the overall legislative scheme indicate that the Legislature would have intended recovery for such persons. One of the primary purposes of these provisions is to prevent the illegal possession and use of controlled substances. This purpose would be inherently subverted if the courts permitted relief to illicit drug users like John Orzel. To allow plaintiffs like him to recover would in effect sanction illegal possession and use of controlled substances — and that this Court simply cannot do._
We have not been persuaded to find otherwise on the basis of the newly instituted "restitution” penalty permitted against pharmacists under MCL 333.17763; MSA 14.15(17763) and MCL 333.17768(1); MSA 14.15(17768)(1). The provisions are limited in scope to penalties that may be imposed by a disciplinary subcommittee — not a trial court. This aspect of the provisions shows that the Legislature did not have in mind a malpractice award or judgment or settlement stemming from a civil cause of action for damages when it authorized subcommittees to order "restitution.”
The legislative history supports this understanding, and provides further instruction concerning the Legislature’s aim when it enacted the amendments. We again find nothing in the legislative history to suggest that the Legislature wanted to make illicit drug users the recipients of restitution from pharmacists who illegally dispense prescription drugs. Nor do the legislative analysis documents indicate that the Legislature considered restitution for illicit users to be a necessary and effective means of preventing illegal diversion of controlled substances. Significantly, the documents do explain that the Legislature had already instituted a specific response to the problem of illegal diversion of prescription drugs. The response came in the form of a legislation package known as the "triplicate prescription” program, under which the dispensers and prescribers of controlled substances are required to maintain triplicate records regarding the dispensing or prescription of controlled substances. The Legislature has the authority to institute a policy that would allow illegal drug users to sue their illegal drug suppliers for negligence. The Legislature has not yet established such a policy, and this Court will refrain from superimposing such a policy judgment on the statutes.
Because John Orzel fails to meet the threshold requirement for recovery under statutes the defendant allegedly violated — he does not clearly fall within the class of persons that the statutes were intended to protect — we conclude that the statute-based exception to the wrongful-conduct rule does not apply in this case. However, we want to point out that merely because plaintiffs like John Orzel are not entitled to a recovery under the statutes does not mean that pharmacists who violate such statutes in connection with illicit drug users are immune from all forms of punishment. The Legislature has taken steps to assure that punishment will occur when warranted. These provisions are penal in nature, and any licensed health professional found to have violated them will be subject to discipline by the pharmacy licensing board or will be subject to criminal prosecution. Clearly, the law will not tolerate pharmacists who abdicate their professional responsibilities and permit themselves to be used as conduits through which controlled substances can be made available to the illicit drug market.
IV. CONCLUSION
Because none of the limitations or exceptions to the wrongful-conduct rule apply, we hold that plaintiffs’ claim is barred since it is based, at least in part, on John Orzel’s illegal conduct. Because the claims of John Orzel’s relatives are also based in part on his illegal conduct, we hold that their claims likewise are barred under the wrongful-conduct rule.
The decision of the Court of Appeals is reversed, and the trial court’s decision to grant the defendant judgment notwithstanding the verdict is affirmed.
Brickley, C.J., and Levin, Boyle, Riley, Mallett, and Weaver, JJ., concurred with Cavanagh, J.
Methamphetamines are similar to amphetamines, differing only in the point of attachment of a methyl (CH3) group. Like amphetamines, methamphetamines operate as stimulants and are highly addictive.
MCL 333.7214(c)(ii); MSA 14.15(7214)(c)(ii).
The evidence at trial showed that John'Orzel presented the defendant with prescriptions for Desoxyn where the prescriptions had been written for persons with names other than "John Orzel.” The defendant still filled such prescriptions and gave them to John Orzel.
Each Desoxyn prescription given to John Orzel was for one month’s supply. Nevertheless, on several occasions, the defendant filled more than one prescription for John Orzel within the same month.
According to a Board of Medicine regulation applicable to physicians, physicians must indicate on amphetamine prescriptions "whether the purpose is for thé treatment of obesity, narcolepsy, hyperactivity, or another purpose which the board has authorized by written waiver.” 1979 AC, R 338.2303(3). A disputed issue at trial was whether this regulation also governed the conduct of pharmacists so that they would be prohibited from dispensing amphetamines unless the prescription explicitly indicated that it was for one of the three purposes stated in the regulation.
From 1983 through 1986, he continued his drug use, purchasing and using mostly cocaine and Tylenol No. 4.
Accord 1A CJS, Actions, § 29, p 387; 1 Am Jur 2d, Actions, § 45, p 752.
For cases in which the plaintiff stood to profit from his wrongdoing if allowed to pursue his claim based on his own illegal conduct, see Budwit and Garwols (a plaintiff who murdered his wife sought the proceeds of an insurance policy in which he had been named a beneficiary) and Imperial Kosher Catering (a plaintiff who had been convicted of arson sought fire insurance proceeds).
The plaintiffs err when they argue that the wrongful-conduct rule only applies in cases in which the plaintiff seeks to profit from personal illegal conduct. While Michigan courts have applied the wrongful-conduct rule in such cases, see n 8, Michigan courts have also considered applying or have applied the wrongful-conduct rule in cases in which the plaintiff sought compensation for injuries stemming from his illegal conduct, rather than seeking a profit per se. See Manning (the Court contemplated applying the wrongful-conduct rule even though the plaintiff did not seek to profit from her criminal conduct); Piechowiak (the Court applied the wrongful-conduct rule even though the facts made clear the plaintiff could not and did not seek to profit from' his crime); Glazier and Pantely (the Court of Appeals applied the wrongful-conduct rule even though the plaintiff sought damages that could be characterized as compensation rather than a profit). Thus, in Michigan, the principle that one may not profit from his own wrong has been extended to tort actions where plaintiffs seek compensation for injuries resulting from their own illegal activities.
As recognized by the Court of Appeals:
"To permit a recovery . . . [would] be illogical, would discredit the administration of justice, defy public policy and shock the most unenlightened conscience. To sustain such a judgment would be to encourage and give support to the current thoughtless and carping criticisms of legal procedure, and to justify the gibe that the administration of the law is the only remaining legalized lottery.” [Imperial Kosher Catering at 545-546, quoting Eagle, Star & British Dominions Ins Co v Heller, 149 Va 82, 111; 140 SE 314 (1927).]
In cases in which both the plaintiff and the defendant equally participated in the illegal activity, Michigan courts have refrained from affording relief to one wrongdoer against another and instead espouse the view that it is better to "leave the parties where [the court] finds them.” Pantely at 774.
Suit is barred not because the defendant is right, but rather because the plaintiff, being equally wrong, has forfeited any claim to the aid of the court. See, for example, Jones v Chen nault, 323 Mich 261; 35 NW2d 256 (1948). [Pantely at-774. Accord 1A CJS, Actions, § 29, p 388; 1 Am Jur 2d, Actions, § 46, p 753.]
MCL 333.7101 et seq.; MSA 14.15(7101) et seq.
MCL 333.7407; MSA 14.15(7407) provides in pertinent part:
(1) A person shall not-knowingly or intentionally:
(c) Acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.
(d) Furnish false or fraudulent material information in, or omit any material information from, an . . . official prescription form ....
MCL 333.7403(1); MSA 14.15(7403X1) provides in pertinent part:
A person shall not knowingly or intentionally possess a controlled substance, a controlled substance analogue, or an official prescription form or a prescription form unless the controlled substance, controlled substance analogue, official prescription form, or prescription form was obtained directly from, or pursuant to, a valid prescription or order ....
MCL 333.7404(1); MSA 14.15(7404)(1) provides in pertinent part:
A person shall not use a controlled substance or controlled substance analogue unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner’s professional practice, or except as otherwise authorized by this article.
MCL 333.7407(3); MSA 14.15(7407X3).
MCL 333.7403(2)(v); MSA 14.15(7403)(2)(v).
MCL 333.7404(2)(a); MSA 14.15(7404)(2)(a).
For another application of the causation limitation see Miller v Radikopf (finding that the illegal aspect of a contractual relationship was “not an essential part of ” the agreement sought to be enforced).
See 57A Am Jur 2d, Negligence, § 765, p 682.
MCL 436.1 et seq.; MSA 18.971 et seq. Section 33 of the Michigan Liquor Control Act provides in pertinent part:
Alcoholic liquor shall not be sold or furnished to a person unless the person has attained 21 years of age. A person who knowingly sells or furnishes alcoholic liquor to a person who is less than 21 years of age, or who fails to make diligent inquiry as to whether the person is less than 21 years of age, is guilty of a misdemeanor. [MCL 436.33(1); MSA 18.1004(1).]
Const 1963, art 4, § 40 provides in pertinent part:
A person shall not sell or give any alcoholic beverage to any person who has not reached the age of 21 ... .
MCL 333.1101 et seq.; MSA 14.15(1101) et seq.
MCL 333.17759; MSA 14.15(17759) provides in pertinent part:
(1) A harmful drug shall be dispensed only:
(a) As a prescription drug.
(b) Under the control of a licensed pharmacist or prescriber, who maintains records for the dispensing of these drugs which are the same as records required for the dispensing of prescriptions.
Actually, MCL 333.16221(c)(iv); MSA 14.15(16221)(c)(iv) does not apply to pharmacists. See MCL 333.16111(1); MSA 14.15(16111X1). However, a prohibition against dispensing controlled substances for illegitimate purposes does exist with regard to pharmacists pursuant to MCL 333.7311(l)(e) and (g); MSA 14.15(7311)(l)(e) and (g).
The amendments were incorporated into the health code pursuant to 1993 PA 79, § 3, eifective April 1, 1994. The wording of the amendments essentially is the same under the two provisions. For convenience, only the wording of the amendment under MCL 333.17768(1); MSA 14.15(17768X1) is quoted here.
In a manner consistent with part 161, the disciplinary subcommittee may fine, reprimand, or place on probation, a person licensed under this part, or deny, limit, suspend, or revoke a person’s license or order restitution or community service for a violation of this part or rules promulgated under this part. [Emphasis added.]
Note that the amendment providing for restitution was also incorporated into the controlled substances act under MCL 333.7311(1); MSA 14.15(7311X1).
See HB 4076, Second Analysis, House Legislative Analysis (January 25, 1994), HB 4076, First Analysis, House Legislative Analysis (March 24, 1993), and SB 337-343, First Analysis, .Senate Fiscal Analysis (February 24, 1993).
HB 4076, Second Analysis, House Legislative Analysis, fiscal implications, p 13 (January 25, 1994). For provisions regarding the triplicate prescription see MCL 333.7334(7); MSA 14.15(7334X7), MCL 333.7334(15); MSA 14.15(7334X15).
The plaintiffs regard as significant the fact that the Legislature did not explicitly exclude illicit drug users from those entitled to restitution under the amendments. The plaintiffs point to the explicit exclusion from recovery applying to the "visibly intoxicated person” under the dramshop act, MCL 436.22(10); MSA 18.993(10), as proof that the Legislature knew how to exclude certain groups from recovery when it so desired. They argue that the fact that the Legislature did not similarly limit the recovery class under the amendments shows that no such limitation was intended.
The plaintiffs’ analogy to the dramshop act is without merit. The Legislature is presumed to know the recognized rules of the common law in effect when it drafts statutes. In re Recorder’s Court Bar Ass’n v Wayne Circuit Court, 443 Mich 110, 127; 503 NW2d 885 (1993). When the Legislature drafted the amendments providing for restitution, the wrongful-conduct rule was firmly embedded in our common-law jurisprudence. Under the wrongful-conduct rule, illicit drug users would be barred from restitution where their actions were based in part on their illegal transactions with drugs. Absent an indication that the Legislature sought to abrogate the common law when it drafted the amendments, the amendments will be read in light of the .previously established wrongful-conduct rule, so as to necessarily exclude illicit drug users from those persons who would be entitled to restitution under the amendments. | [
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Brickley, C.J.
In this case we decide whether the decisions of the tri-county hearing panel and the Attorney Discipline Board to reinstate petitioner’s license to practice law are supported by proper evidence on the whole record. We believe that a review of the entire record does not support the decision of the hearing panel or the Attorney Discipline Board to reinstate petitioner Robert McWhorter to the practice of law in this state at this time. We conclude that petitioner has not spent adequate time outside the supervision of parole authorities sufficient to demonstrate that he has a proper understanding of and attitude toward the standards imposed on members of the bar or that he will conduct himself in conformity with those standards. We therefore would reverse the decision of the Attorney Discipline Board and deny Mr. McWhorter’s petition for reinstatement, and would hold that petitioner may not reapply for reinstatement until June 28, 1997, five years from the date of his release from federal parole.
i
In December 1978, Robert McWhorter was found guilty in federal court of a ten-count indictment for the offense of aiding and abetting the manufacture of methamphetamine. 21 USC 841(a)(1), 18 USC 2(a), and 21 USC 841(b)(1)(B). He was sentenced to five years imprisonment with a special parole term of two years. As a result of this conviction, the Attorney Grievance Commission filed a formal complaint against petitioner in January, 1979. Petitioner was disbarred by order filed June 8, 1979. However, the order of disbarment was later vacated by notice dated September 15, 1980, because the United States Court of Appeals for the Sixth Circuit vacated the decision and remanded the case for trial.
Meanwhile, petitioner was convicted in Kalama zoo Circuit Court on May 29, 1980, for an unrelated incident of kidnapping, MCL 750.349; MSA 28.581, and conspiracy to kidnap, MCL 750.157a; MSA 28.354(1). As a result, a second formal complaint was filed on June 20, 1980, charging petitioner with violation of GCR 1963, 953(2) to (5), and Canon 1 of the Code of Professional Responsibility, DR 1-102(A)(3) and (4). The convictions arose out of the abduction of David Nixon from Mc-Whorter’s law office. The kidnapping was arranged by petitioner in order to extort money for the payment of McWhorter’s legal services. Petitioner’-s license to practice law was ultimately revoked, effective February 24, 1981, as a result of these convictions.
After remand on the federal charges, on October 3, 1980, petitioner was convicted of drug-related offenses in the United States District Court for the Western District of Michigan, Southern Division. A jury found petitioner guilty of conspiracy to import cocaine into the United States, aiding and abetting the manufacture of methamphetamine, and using a communication facility, i.e., a telephone, to facilitate the manufacture of methamphetamine. The jury also convicted Mc-Whorter of conspiracy to manufacture, possess with intent to distribute, and distribute methamphetamine. 21 USC 841(a)(1). Petitioner was sentenced to ten years imprisonment with a two-year special parole term.
The federal convictions arose out of petitioner’s attempt to finance a drug-smuggling trip to South America to purchase cocaine and marijuana. Mc-Whorter and an undercover Drug Enforcement Administration agent met and discussed McWhorter’s drug-smuggling scheme and his contacts with various drug sources. The dea agent told Mc-Whorter that he was interested in chemical drugs, and McWhorter responded that he knew a chemist who would manufacture drugs. Additionally, Mc-Whorter offered to render legal services to the undercover agent, proposing to set up a strawman chemical company in order to make detection of the drug scheme more difficult. On appeal, Mc-Whorter contended that he was involved in only one drug conspiracy, i.e., the manufacturing of methamphetamine in order to finance the South American drug-smuggling scheme. The United States Court of Appeals for the Sixth Circuit rejected his argument and affirmed the convictions.
Petitioner served prison terms for both his federal and state convictions. He was released on parole in 1985 and sent to a halfway house in Grand Rapids for the following two months. On June 28, 1992, he was released from federal parole. Approximately three months before being released from federal parole, petitioner filed a petition for reinstatement of his license to practice law in Michigan.
A hearing was held by the tri-county hearing panel and it was determined that petitioner had established the requirements for reinstatement pursuant to MCR 9.123(B) by clear and convincing evidence. Petitioner was therefore reinstated with conditions, including payment of expenses, continuance of weekly therapy sessions, maintenance of church activities, and monitoring by a licensed attorney every two months for one year.
The Attorney Grievance Commission filed a petition for review of the hearing panel’s decision with the Attorney Discipline Board. Petitioner filed a cross petition for review, requesting that the condi tions imposed by the hearing panel be removed. The Attorney Discipline Board remanded the case to the hearing panel, stating that there was not "sufficient evidence in the record upon which to evaluate the nature and scope of the 'supervision of federal authorities’ . . . .” In May, 1994, the Attorney Discipline Board concluded that the monitoring of petitioner by parole authorities was minimal and issued an order modifying the hearing panel’s order of reinstatement. The Attorney Discipline Board reinstated petitioner and removed the conditions imposed by the hearing panel. The Attorney Grievance Commission filed an application for leave to appeal, requesting review of the Attorney Discipline Board’s decision. We granted leave to appeal and now reverse.
ii
We review the decision of the hearing panel and the Attorney Discipline Board "for proper evidentiary support on the whole record.” Grievance Administrator v August, 438 Mich 296, 304; 475 NW2d 256 (1991). We simultaneously recognize that "[t]he power to regulate and discipline members of the bar rests ultimately with this Court pursuant to constitutional mandate.” Id. at 304. A license to practice law is "a continuing proclamation by the Supreme Court that the holder is fit to be entrusted with professional and judicial matters and to aid in the administration of justice as an attorney and counselor and as an officer of the court.” MCR 9.103(A). Cognizant of this responsibility, we review the decisions of the hearing panel and the Attorney Discipline Board to reinstate petitioner to determine if they are supported by the record as a whole.
A
In order to be reinstated, petitioner must establish that he is eligible for reinstatement by clear and convincing evidence, by proof that he has satisfied the criteria set forth in MCR 9.123(B)(1) to (7):
(1) he or she desires in good faith to be restored to the privilege of practicing law in Michigan;
(2) the term of the suspension ordered has elapsed or 5 years have elápsed since revocation of the license;
(3) he or she has not practiced or attempted to practice law contrary to the requirement of his or her suspension or revocation;
(4) he or she has complied fully with the order of discipline;
(5) his or her conduct since the order of discipline has been exemplary and above reproach;
(6) he or she has a proper understanding of and attitude toward the standards that are imposed on members of the bar and will conduct himself or herself in conformity with those standards;_.
(7) taking into account the nature of the misconduct which led to the revocation or suspension, he or she nevertheless can safely be recommended to the public, the courts, and the legal profession as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the bar and as an officer of the court ....
The record appears to support both the hearing panel’s and the Attorney Discipline Board’s determination that petitioner has complied with sub-rules 1- to 5. We are therefore concerned only with whether the record as a whole supports the conclusion that petitioner has established the requirements set forth under subrules 6 and 7.
We initially note that the decision whether to reinstate a disbarred attorney is a balancing process. Moreover, we conclude that a proper analysis of subrules 6 and 7 requires the balancing of several factors. In reviewing the various factors, we recognize that no one factor is conclusive, but, rather, each must be evaluated in light of the others. Specifically, we must consider whether petitioner has spent sufficient time outside the supervision of parole authorities to clearly and convincingly establish that he has satisfied the requirements of subrules 6 and 7.
B
The passage of time, by itself, is not sufficient to support reinstatement. The relevant inquiry is whether petitioner has spent an appreciable time outside the supervision of parole authorities in order for the hearing panel to fully evaluate the disbarred attorney’s present ability to comport with the fitness requirements. See In re Reinstatement of Callanan, 440 Mich 1207 (1992); see also August, supra. Moreover, the five-year period after which a disbarred attorney may petition for reinstatement is but "a minimum period in which rehabilitation may occur following revocation of the license to practice law; the passage of five years in no way guarantees eligibility for reinstatement.” Id. at 310. In Callanan, supra at 1207, this Court held by order that "[t]he misconduct that led to the revocation of the petitioner’s license to practice law was substantial and, because the petitioner had spent little or no time outside the supervision of federal authorities since his license was revoked, it was not possible for the hearing panel and the Attorney Discipline Board to determine the present fitness of the applicant for readmission.”
In August, an attorney was disbarred after, he was convicted of attempting to defraud the United States by conspiring with a court clerk in the United States Bankruptcy Court for the Eastern District of Michigan to manipulate the blind-draw system of assigning judges. In an attempt to avoid a judge known to carefully examine and reduce attorney fee awards, August and the clerk arranged the assignment of judges so that August’s firm avoided the judge in a significant number of cases.
August was imprisoned for approximately one year and was transferred to a halfway house. He remained there until November 19, 1985, when the district judge reduced his sentence to time already served. August filed a petition for reinstatement of his license to practice law in October, 1988. The Wayne County hearing panel denied his request.’ The Attorney Discipline Board held that August was eligible for reinstatement. 438 Mich 302-303. On appeal to this Court, we remanded the case to the Attorney Discipline Board to reexamine whether the petitioner could be recommended to a position of trust as a member of the bar. Significantly, we held that the hearing panel is not limited to a choice between reinstatement and permanent disbarment. Rather, we stated that a third alternative exists where it is determined that a sufficient period of time has not elapsed to judge whether the petitioner may be recommended for reinstatement. _
Petitioner in the present case applied for reinstatement three months before his release from his federal parole. The Attorney Discipline Board remanded the case to the hearing panel to determine the nature and scope of the federal parole authorities’ supervision. The board held that petitioner was not subject to rigid authority during his final period of parole. However, the critical consideration is not necessarily the extent of supervision, but rather the fact that petitioner was under the supervision of parole authorities at the time he applied for reinstatement. Although in these proceedings the nature and scope of supervision may be relevant, the mere fact that petitioner had not been away from the supervision of parole authorities greatly influences the determination whether he has sincerely and sufficiently demonstrated that he will be able to understand and operate within the standards of the bar. Therefore, it is only after a petitioner has spent sufficient time outside the control of parole officers that the hearing panel or the Attorney Discipline Board is able to determine whether the petitioner has been rehabilitated and may therefore be safely recommended for reinstatement. Although he may not have been subject to strict scrutiny by parole authorities, petitioner was still serving his parole and, upon petition for reinstatement, must demon strate his honorable behavior outside such authorities for a period that would enable this Court to safely recommend him to the public. To prevent the petitioner’s immediate reapplication in the present case, we hold that petitioner is not eligible for reinstatement until June 28, 1997, five years from the date of his release from federal parole.
We borrow this time span from MCR 9.123 and analogize it to the present case. For the same reasons, five years is the minimum period after which a disbarred attorney may be eligible for reinstatement, we would hold that it is a sufficient period outside the supervision of parole authorities and the contemplation of petition for reinstatement to fully evaluate his fitness to practice law. In August, supra at 310, this Court stated that five years was the minimum time in which a petitioner could apply for reinstatement, but in no way guaranteed eligibility for reinstatement. In accord with this decision, even though five years have elapsed since petitioner’s disbarment, we find that he is not eligible for reinstatement and wbuld impose this additional period of time to review his fitness. We are persuaded that this addresses the problem identified by one commentator: "The disbarred attorney may file another petition at a later date. In light of this, it would be helpful if the rules provided a minimum spacing between subsequent petitions to prevent a lawyer whose petition is denied from immediately filing another petition.” Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), p 579, author’s comment to MCR 9.123.
We further note that petitioner should not automatically be entitled to reinstatement at the expiration of five years; it is merely the minimum time before he should be permitted to apply for reinstatement because more time may be necessary to demonstrate his fitness. August, supra. If petitioner chooses to petition again for reinstatement after the specified date, he would be subject to a full review, including consideration whether he should be subject to permanent disbarment.
hi
We conclude that petitioner has not spent sufficient time away from the authority of parole officers to demonstrate by clear and convincing evidence that he may be safely recommended to the public, the courts, and the legal profession as a person fit to be consulted by others or to represent them and act in matters of trust and confidence. MCR 9.123(B)(7). Nor has sufficient time passed in order that he may demonstrate a proper understanding of and attitude imposed on members of the bar pursuant to MCR 9.123(B)(6). We therefore would reject petitioner’s application for reinstatement and would hold that he may not reapply for reinstatement until June 28, 1997, five years from the date of his release from federal parole. We therefore would reverse the decision of the Attorney Discipline Board.
Mallett, J., concurred with Brickley, C.J.
The formal complaint was dated January 10, 1979, charging petitioner with violation of GCR 1963, 953(1) to (5), GCR 1963, 969, and Canon 1 of the Code of Professional Responsibility, DR 1-102(A)(Í), (3) to (6).
Respondent remained suspended, however, as a result of an order of an Ingham County hearing panel filed on August 5, 1977. In that proceeding, petitioner was suspended from the practice of law for a period of 121 days for misconduct in handling client funds. This Court ultimately affirmed the order of discipline. State Bar Grievance Administrator v McWhorter (On Rehearing), 407 Mich 278, 282; 284 NW2d 472 (1979).
Petitioner was released from federal parole on June 28, 1992.
United States v McWhorter, 705 F2d 459 (CA 6, 1982).
447 Mich 1202 (1994).
The record "must include a list of docket entries, a transcript of testimony taken, and all pleadings, exhibits, briefs, findings of fact, and orders in the proceeding.” MCR 9.122(D).
See In re Grimes, 414 Mich 483; 326 NW2d 380 (1982); In re Freedman, 406 Mich 256; 277 NW2d 635 (1979). See also State Bar Grievance Administrator v Estes, 392 Mich 645, 649-650; 221 NW2d 322 (1974), reviewing this Court’s refusal to "substitute [its] judgment 'for that of the panel below which had an opportunity and a mandate not only to garner evidence of misconduct but to observe and assess the demeanor and credibility of the witnesses,’ ” citing State Bar Grievance Administrator v Estes, 390 Mich 585, 597; 212 NW2d 903 (1973).
See Const 1963,- art 6, § 5; see also Grimes, n 7 supra at 489-490, stating "[i]t is this Court, however, that has ultimate responsibility to oversee the conduct of the . . . members of the State Bar, and to keep unsullied the reputation of the profession.”
We do not consider MCR 9.123(B)(8) and (9) because they are not applicable in the present case.
Although each requirement under MCR 9.123(B) is interrelated, each subrule evaluates a different aspect of petitioner’s eligibility. In this manner, we held in August, supra at 310 that "subrule 6 is primarily directed to the question of the applicant’s ability, willingness and commitment to conform to the standards required of members of the Michigan State Bar. Subrule 7 shifts the focus to the public trust which this Court has the duty to guard.”
Quoting In re Raimondi, 285 Md 607, 618; 403 A2d 1234 (1979), we have previously summarized this balancing process in August, supra at 307, stating:
"On one side of the scale is placed the seriousness of the misconduct which produced disbarment and the court’s duty to society at large to see that only those persons who are worthy of the faith and confidence of the general public are permitted to handle the affairs of others. ... On the other side are placed the subsequent conduct and reformation of such individual, his present character, his present qualifications and competence to practice law, and the fact that the very nature of law practice places an attorney in a position where an unprincipled individual may do tremendous harm to his client.”
See In re Brown, 166 W Va 226, 235; 273 SE2d 567 (1980), stating: "Most courts hold that the mere passage of time alone is insufficient to warrant reinstatement.”
August was convicted under 18 USC 371 of conspiring to defraud the United States of the due administration of justice and under 18 USC 1503 of impeding the due administration of justice and attempting to influence a court clerk in the discharge of her official duties. Id. at 299.
This Court held:
Finally, we do not agree with the board’s assessment that the reinstatement criteria allow only two possibilities: that peti tioner be now readmitted or forever barred from the practice of law in this state. A third alternative is illustrated in this case, where the hearing panel determined that petitioner "could not now be safely recommended as a person of trust.” [Id. at 312-313.]
The Attorney Discipline Board stated:
[T]he testimony of the parole officers established that his reporting on a monthly basis eventually consisted of little more than perfunctory meetings during which the petitioner confirmed his continued residence and employment in Kalamazoo.
We note that even though a period of time has now elapsed since petitioner was under the supervision of parole authorities, he has been involved in his petition for reinstatement since his release from parole. Therefore, we are equally unable to safely judge whether petitioner has now been rehabilitated — even though some time has elapsed outside the supervision of parole authorities — because his actions have been under similar, if not heightened, scrutiny by the Attorney Grievance Commission, the hearing panel, and the Attorney Discipline Board. | [
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Riley, J.
At issue in this case is the admissibility of expert testimony regarding the battered woman syndrome when offered to assist the jury in understanding the complainant’s testimony and actions. We hold that expert testimony regarding the battered woman syndrome is admissible only when it is relevant and helpful to the jury in evaluating a complainant’s credibility and the expert witness is properly qualified.
Generally, battered woman syndrome testimony is relevant and helpful when needed to explain a complainant’s actions, such as prolonged endurance of physical abuse accompanied by attempts at hiding or minimizing the abuse, delays in reporting the abuse, or recanting allegations of abuse. If relevant and helpful, testimony regarding specific behavior is permissible. However, the expert may not opine whether the complainant is a battered woman, may not testify that defendant was a batterer or guilty of the instant charge, and may not comment on the complainant’s truthfulness. Moreover, the trial court, when appropriate, may preclude expert testimony when the probative value of such testimony is substantially outweighed by the danger of unfair prejudice.
In this case, the expert testimony was arguably relevant and helpful in understanding complainant’s actions in tolerating physical abuse over a period of years. Moreover, it may have been relevant in explaining why complainant did not report similar incidents earlier. On the other hand, its relevance did not reach the level found in other battered women cases that have considered this issue. Complainant did not remain in the relationship until the date of the assault and try to hide or deny the abuse, did not delay reporting this incident, and did not later retract the claim of abuse. Instead, complainant testified that the relationship ended one month before the assault, explained that she immediately reported the sexual assault, and has consistently maintained that the abuse occurred. Although the testimony was arguably relevant and helpful, on these facts, we are persuaded that a more direct connection and factual premise is necessary, and, hence, we deem the trial court’s decision to admit the testimony to be error.
Nonetheless, we deem the error harmless in light of the limited nature of the testimony and the other physical and testimonial evidence of abuse. The expert merely explained the characteristics of a battered woman. He neither testified that complainant’s behavior was consistent with such traits, nor opined about complainant’s truthfulness or whether complainant was a battered woman. Combining the physical evidence of sexual abuse with complainant’s testimony, we are persuaded that the limited nature of the expert testimony could not have affected the jury’s decision to convict. Accordingly, we reverse the decision of the Court of Appeals with respect to admission of this expert testimony, but affirm the result because of the harmless nature of the testimony.
i
Defendant was charged with first-degree criminal sexual conduct, breaking and entering an occupied dwelling with intent to commit criminal sexual conduct, and breaking and entering an occupied dwelling with intent to commit larceny. A jury acquitted defendant of both breaking and entering charges, but convicted him of first-degree criminal sexual conduct. The trial court sentenced defendant to fifteen to twenty-five years in prison.
For several years before this incident, defendant and complainant shared an on-again, off-again romantic relationship. At one point, they lived together with defendant’s mother and later moved into their own apartment. However, this latter arrangement ended after about a week, on December 13, 1989, when heated arguments and physical abuse compelled complainant to ask defendant to move out. Complainant testified that this ended their relationship, whereas defendant claimed that the relationship continued nonetheless until the date of this alleged assault. At the time of the assault, complainant was six months pregnant with defendant’s child.
At trial, complainant testified that their relationship began well, but later progressed into both verbal and physical abuse. Defendant apparently became extremely jealous of complainant; he accused her of dating other men and became angered at any intimation that she was looking at other men in person, on television, or in pictures. This jealously often turned to rage and beatings, followed by compelled sexual intercourse. Complainant described this behavior as being a "game” for defendant. Indeed, a neighbor confirmed the rage and persistent behavior, testifying that defendant frequently came to complainant’s apartment demanding to see her, and that she would refuse to let him in and tell him to leave. On many occasions, the neighbor observed defendant lurking in the laundry room waiting for complainant to arrive home.
On the afternoon of January 23, 1990, complain ant testified that defendant entered her apartment by breaking , the chain lock on the door. After verbal abuse, he proceeded to slap her with an open hand and eventually to rape her. The rape occurred after defendant grabbed complainant by the neck and forced her face into a pillow while stating: "this is what you want, this is what you are going to see your boyfriend for, I can do it better than he can.” In doing so, he scratched and left "hickeys” on the back of her neck. As a result of the intercourse, complainant endured premature labor contractions and accompanying pain. Despite knowing of the contractions, defendant immediately left the apartment after the incident. Complainant then drove herself to the hospital.
When complainant arrived at the hospital, she was crying and had bruises and scratches on her body and dried blood on her lip. She was treated for premature labor and remained in the hospital overnight. Doctors and nurses performed' a rape test and noticed that her vaginal area was red and swollen. Thereafter, hospital personnel notified the police, resulting in complainant’s consultation with Sergeant Fred Reid regarding her allegation of rape.
When released from the hospital, complainant stopped at her apartment to retrieve some clothing and drop off some material regarding the police investigation. She then went to stay with her mother. The following day complainant returned to her apartment and noticed that the damaged chain lock was missing, along with the pillow case used to muffle her screams, two business cards from Sergeant Reid, and an audio tape from the answering machine, which allegedly contained harassing messages from defendant. In an open cookbook, however, she found several written notes left by defendant describing complainant as a liar, a cheat, and other more graphic and profane names. He also made threatening remarks like "make my morning” and questioned how she could accuse him of rape. At trial, the cookbook was admitted into evidence. Defendant admitted writing these notes and taking the business cards, but denied taking anything else.
During cross-examinations and defendant’s presentation of his case, complainant was portrayed as a liar, a perjurer, a self-mutilator, and an embezzler. Defendant produced several witnesses who allegedly saw defendant and complainant together on New Year’s Eve, 1989, and several family members who saw them together after December 13, 1989, the date complainant said the relationship had ended. Defense counsel also elicited from complainant instances in which she engaged in self-mutilation, e.g., burning herself with a cigarette, in order to get defendant’s atten tion. Defendant’s theory was that complainant pursued the rape charge in retaliation for threats that defendant would report complainant’s embezzlement from her employer.
To rebut some of these claims and to help evaluate complainant’s credibility, the prosecution called in its case in chief a clinical psychologist, Dr. Louis Oken, who was trained in the field of domestic violence and the battered woman syndrome. Over defendant’s objection, Dr. Oken described the syndrome and explained that women often remain in a relationship with a boyfriend or husband even though abuse is occurring. The syndrome develops in stages, beginning with minor beatings and progressing to more severe beatings, followed by a period of nonviolence. During this period, the battered woman begins to deny, repress, or minimize the abuse rather than be outraged. He noted, however, that people react differently depending on one’s well-being and living situation, thus making it difficult through initial consultations to determine whether a person is in a battering situation.
Because he had never treated complainant or defendant, Dr. Oken limited his testimony to generalities associated with the battered woman syndrome. Accordingly, he did not indicate whether complainant’s behavior was consistent with a battered woman, did not give an opinion whether this particular complainant suffered from the battered woman syndrome or that defendant was a batterer, did not opine whether he thought complainant was being truthful, and did not comment on defendant’s guilt.
In closing arguments, both sides stressed the credibility of its witnesses. Defense counsel said complainant was not credible and that the intercourse was consensual, whereas the prosecution contended that she was credible, that her claims were consistent with physical evidence of sexual assault, and that uninterested medical personnel relayed this information. With respect to Dr. Oken, the prosecutor theorized that from complainant’s testimony and Dr. Oken’s rendition of the syndrome
you have to be convinced that she, in fact, was a battered woman, and falls into the criteria that he gave you. She went back and tried to work out that situation after sustaining numerous beatings, and you can’t understand that, and I can’t understand that, but he tells you that it is not a reasonable conclusion, but it is something that women do all the time.
After conviction, defendant sought review in the Court of Appeals, which affirmed the conviction. Unpublished opinion per curiam of the Court of Appeals, issued December 9, 1993 (Docket No. 140721) (Michael J. Kelly, J., dissenting). The Court of Appeals majority held that the expert testimony was properly admitted in order to assist the trier of fact in understanding the evidence. "While the average person without special knowledge might reject the complainant’s testimony that she remained in an abusive relationship off and on for over a year as incredible, the expert testified that it is actually quite common for people who suffer physical abuse at the hands of someone they love to continue in relationships with their abusers.” Slip op at 1.
On December 29, 1994, this Court granted leave to appeal limited to the issue whether evidence of the battered woman syndrome was admissible.
ii
Before permitting expert testimony, the trial court must find that the evidence is from a recognized discipline, as well as relevant and helpful to the trier of fact, and presented by a witness qualified by "knowledge, skill, experience, training, or education . . . .” MRE 702; People v Beckley, 434 Mich 691; 456 NW2d 391 (1990). On request, the trial judge may deem a limiting instruction appropriate and, in certain cases, may exclude the testimony because the probative value of the syndrome evidence is substantially outweighed by the danger of unfair prejudice. MRE 403; Beckley, supra at 725 (opinion of Brickley, J.); id. at 741 (opinion of Boyle, J.). On appeal, our duty is to review the decision to admit such testimony for an abuse of discretion.
A
The expert testimony in this case involved what has become known as the battered woman syndrome. Dr. Lenore Walker in her book, The Battered Woman (New York: Harper & Row, 1979), brought to the forefront this concept and explanation of abuse between husband and wife and boy friend and girlfriend. Dr. Walker defined a battered woman as
a woman who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without any concern for her rights. Battered women include wives or women in any form of intimate relationships with men. Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman. [Id. at XV.]
Dr. Walker notes that a battering or abusive relationship often results in criminal litigation either against the abuser or the abused who retaliates. When the precipitating facts of the syndrome are offered into evidence in either case, the syndrome is not easily conceptualized by lay persons. Accordingly,
[e]xpert testimony on the battered woman syndrome would help dispel the ordinary lay person’s perception that a woman in a battering relationship is free to leave at any time. The expert evidence would counter any "common sense” conclusions by the jury that if the beatings were really that bad the woman would have left her husband much earlier. Popular misconceptions about battered women would be put to rest, including the beliefs that the women are masochistic and enjoy the beatings and that they intentionally provoke their husbands into fits of rage. [State v Hodges, 239 Kan 63, 68-69; 716 P2d 563 (1986), summarizing The Battered Woman, supra at 19-31.]
In most cases, the battered woman syndrome is offered by the defendant in a case of homicide in which the defendant is claiming self-defense. As one court has explained:
[E]xpert scientific evidence concerning "battered-woman’s syndrome” does not aid a jury in determining whether a defendant had or had not behaved in a given manner on a particular occasion; rather, the evidence enables the jury to overcome common myths or misconceptions that a woman who had been the victim of battering would have surely left the batterer. Thus, the evidence helps the jury to understand the battered woman’s state of mind. [State v J Q, 130 NJ 554, 574; 617 A2d 1196 (1993).]
Although we do not express approval or disapproval of this use, we note that our Court of Appeals recently recognized that a majority of jurisdictions favor the admissibility of expert testimony on the issue of the battered woman syndrome when offered as a means of self-defense. See People v Wilson, 194 Mich App 599, 603; 487 NW2d 822 (1992), citing anno: Admissibility of expert or opinion testimony on battered wife or battered woman syndrome, 18 ALR4th 1153.
The instant case, however, falls in the minority of situations in which the evidence is offered to help evaluate the credibility of the complainant instead of exculpating the accused. Use of expert testimony in this situation is an issue of first impression for this Court. Nonetheless, our recent decision in Beckley, supra, and decisions from our sister jurisdictions guide our analysis.
B
In Beckley, this Court addressed whether expert testimony regarding the rape trauma syndrome is admissible in child sexual abuse cases in order to rebut the inference that the victim’s behavior was inconsistent with that of an actual sexual abuse victim. In a plurality opinion, we held that this expert testimony is generally admissible when the scientific or technical evidence is from a recognized discipline, the testimony is helpful to the trier of fact in understanding relevant evidence, and the expert is qualified. Id. at 711 (opinion of Brickley, J.); id. at 736-737 (opinion of Boyle, J.). Assuming these tests are satisfied, the expert may testify regarding the characteristics of the syndrome and whether the complainant’s behavior is consistent with those traits.
However, seven justices agreed that syndrome evidence is not admissible to demonstrate that abuse occurred. Id. at 724 (opinion of Brickley, J.); id. at 734 (opinion of Boyle, J.); id. at 744 (opinion of Archer, J.). The Court also agreed that the expert may not give an opinion about whether the complainant is being truthful or the defendant is guilty. Moreover, five justices agreed that where syndrome evidence is merely offered to explain certain behavior, the Davis/Frye test for recognizing an admissible science is inapplicable. Beckley, supra at 721, 734.
The basis for the three separate opinions in Beckley stemmed from disagreement regarding the necessary foundation for and the parameters of this expert testimony. Justice Brickley would limit its admission " 'for the narrow purpose of rebutting an inference that a complainant’s post-incident behavior was inconsistent with that of an actual victim of sexual abuse, incest or rape.’ ” Id. at 710 (citation omitted). Justice Archer concurred in part, but would hold that an expert only can testify in generalities and cannot discuss whether the victim’s behavior is consistent with that of other abuse victims. Id. at 744. On the other hand, Justice Boyle would allow the expert to testify about these similarities to assist the jury in deciding a fact at issue. Id. at 736.
c
Today, we extend the general holding in Beckley to expert testimony of the battered woman syndrome so that the expert may, when appropriate, explain the generalities or characteristics of the syndrome. We emphasize, however, "that the admissibility of syndrome evidence is limited to a description of the uniqueness of a specific behavior brought out at trial.” Beckley, supra at 725 (opinion of Brickley, J.). In other words, we do not adopt the battered spouse syndrome, but will permit testimony regarding specific behavior where relevant and helpful to the factfinder. Furthermore, we extend the prohibitions agreed on by seven justices in Beckley — the expert cannot opine that complainant was a battered woman, may not testify that defendant was a batterer or that he is guilty of the crime, and cannot comment on whether complainant was being truthful.
However, finding that expert testimony is generally admissible on the issue of the battered woman syndrome does not obviate the threshold determinations for every trial court — helpfulness and relevancy. Thus, we turn to the confines of its admissibility and whether the syndrome evidence in this case was relevant and helpful to the jury. We note that defendant does not seriously contest that Dr. Oken was a qualified expert, and he concedes, and we agree, that battered woman syndrome evidence is from a recognized discipline.
D
Generally, expert testimony is needed when a witness’ actions or responses are incomprehensible to average people. This may include, for example, when a complainant endures prolonged toleration of physical abuse and then attempts to hide or minimize the effect of the abuse, delays reporting the abuse to authorities or friends, or denies or recants the claim of abuse. Schroeder, Using battered woman syndrome evidence in the prosecution of a batterer, 76 Iowa LR 553 (1991). Only when those or similar facts are at issue and expert testimony would be helpful in evaluating a witness’ testimony is it permissible to admit battered woman syndrome evidence in the prosecution’s case in chief.
As one of the first jurisdictions to consider the use of the battered woman testimony against a defendant, the New Hampshire Supreme Court in State v Baker, 120 NH 773; 424 A2d 171 (1980), found it relevant and admissible in order to rebut the defendant’s evidence that he was insane at the time he attempted to murder his wife. The court found the evidence probative because it offered "an alternative explanation for the defendant’s assault on his wife.” Because the testimony directly refuted defendant’s insanity, theory, it was relevant and could not have confused or misled the jury. Id. at 775.
In the decade since Baker, courts have limited expert testimony to situations in which the complainant endured prolonged toleration of abuse, but hid or denied that it occurred, delayed reporting the underlying assault, or recanted after alleg ing the abuse to have occurred. For example, in State v Ciskie, 110 Wash 2d 263; 751 P2d 1165 (1988), the defendant was charged with four counts of raping his girlfriend. At trial, the defendant claimed that the complainant received bruises and lacerations from minor accidents. The defendant also asserted that if he was really hürting her she could have immediately sought medical attention, called the police, or ended the relationship at any time instead of months later. The explicit premise of the defense was that shé was a liar and that her behavior was inconsistent with that of an actual abuse victim.
To explain the victim’s failure to leave or immediately report these abuses, the trial judge permitted, and the Washington Supreme Court affirmed, the admission of expert testimony regarding the battered woman syndrome. "Neither logic nor law requires us to deny victims an opportunity to explain to a jury, through a qualified expert, the reasons for conduct which would otherwise be beyond the average juror’s understanding.” Id. at 265.
A similar need for expert testimony arose in Arcoren v United States, 929 F2d 1235 (CA 8, 1991), in which the complainant recanted her story four months later at trial. Immediately after the rape, the complainant flagged down a police car and reported the rape, recounted the same story to nurses, doctors, and criminal investigators, and, three days after the assault, gave a sworn statement before a grand jury. In what the United States Court of Appeals for the Eighth Circuit described as a "bizarre situation,” it held that
[a] jury naturally would be puzzled at the complete about-face she made [at trial], and would have great difficulty in determining which version of [the complainant’s] testimony it should believe. If there were some explanation for [the complainant’s] changed statements, such explanation would aid the jury in deciding which statements were credible. . . . [E]xpert testimony regarding the battered woman syndrome provided that explanation to the jury. [Id. at 1240.]
Likewise, in State v Frost, 242 NJ Super 601; 577 A2d 1282 (1990), the defendant had a three and one-half year relationship with the complainant, interrupted by the defendant’s imprisonment on theft charges. When the defendant was re leased, he returned to the complainant’s residence, believing that she was responsible for his conviction. He beat her, cut her arm, and raped her. She initially denied the abuse and told her mother not to call the police. After the victim was treated for a laceration on her arm, she went to spend the day with the defendant and their baby. She also visited the defendant while in jail pending trial.
At trial, the defendant testified that the intercourse was consensual and that the complainant was lying. The court found the expert testimony admissible: "Having heard that she spent the entire day with defendant, the jury quite properly could have concluded — based on the misconception that battered women are free to leave — that, if [the complainant] had indeed been assaulted that day, she would have immediately called for help.” Id. at 614.
Finally, in State v Borrelli, 227 Conn 153; 629 A2d 1105 (1993), the court held expert testimony admissible to explain why the complainant might have immediately reported the crime and then recanted the allegation at the hearing on the motion to dismiss and at trial. She testified at trial that she tied the defendant’s hands and feet rather than he tying hers, and that her initial allegations were offered in order to get the defendant arrested so he would be forced to undergo drug treatment. The court noted that the expert testimony "offered a different explanation, one beyond the knowledge and understanding of the average juror — that the statement was true, and the victim’s recantation was a pattern of typical behavior consistent with battered woman’s syndrome.” Id. at 171._
E
In the instant case, while there may have been some basis for the testimony, we find the necessary factual underpinnings for admission of expert testimony lacking. Certainly there may have been a question why complainant tolerated prolonged abuse without reporting it to authorities or friends. However, defendant never denied that some abuse occurred. Furthermore, complainant testified that the relationship ended one month before the assault and did not attempt to hide or deny the instant sexual assault. Moreover, complainant did not delay reporting this incident, but, instead, immediately sought medical attention with accompanying discussions with police. Two days later, a formal complaint was issued. Complainant also never recanted that the assault occurred.
The prosecution’s contention that she remained in the relationship in spite of the abuse does not by itself make it relevant and helpful to a material issue. Indeed, this contention is belied by complainant’s own testimony that the relationship ended one month before the incident. Expert testimony usually is not needed to explain alternative prosecution theories, but to explain things not readily comprehensible to an average juror. Because complainant has consistently maintained that the relationship ended in December and there is no evidence that complainant hid or minimized, delayed reporting, or recanted the abuse, we reject the prosecution’s contention that the battered woman syndrome was relevant in this case.
On this record, it was questionable whether complainant’s testimony and actions would be incomprehensible to average people so that admission of expert testimony was warranted. Our re view of the facts leads us to conclude that it was error to admit this testimony. We sympathize with trial judges who face the difficult task whether to admit such testimony in cases where the factual underpinnings are not always clear and identifiable. However, while a bright-line test may not be possible, we believe the foundational confines provided by our sister jurisdictions accurately limit the use of this testimony. Even if there are other permissible uses for the testimony, we are persuaded that the instant case is not one of them. Accordingly, we find that the trial judge abused his discretion in admitting the testimony.
hi
Although it was error to admit Dr. Oken’s testimony, we find the error harmless in light of other physical evidence of abuse, complainant’s testimony, and the limited nature of Dr. Oken’s offering. Dr. Oken merely described the basic characteristics of the syndrome and the different stages of development. He explained various responses, reactions, and methods of coping. He also indicated that there is no one set of criteria to determine whether a woman is being battered. Indeed, in his practice of counseling, he finds it difficult to determine whether a woman is being battered or the defendant is a batterer even after a number of visits, and that it is impossible to determine after just one visit. In making this observation, he never opined whether complainant’s behavior was consistent with this general criteria and, in fact, indi cated that he never met or treated complainant or defendant. Moreover, he explicitly disclaimed any intimation that complainant was being truthful or that she was a battered woman. While the testimony was lengthy, the substance and application were minimal.
The other testimony, however, revealed more than just a credibility contest. Physical evidence and testimony by medical personnel confirmed that some abusive activity occurred and that defendant was enraged with complainant. Doctors and nurses testified that complainant was crying when she entered the hospital, that she had bruises on her face and body, scratches and hickeys on her neck, and a red and swollen vaginal area. The theory that the injuries were self-inflicted was dismissed in part by the medical personnel who opined that the angle of the scratches could not have been self-inflicted.
Additionally, the cookbook containing notes by the defendant and acknowledged by him at trial corroborated complainant’s testimony of verbal abuse and rage toward complainant. Moreover, the testimony from complainant’s neighbor regarding defendant’s persistence and accompanying rejection by complainant undercut the possibility of consensual intercourse on January 23, 1990. Coupling these facts with complainant’s testimony, Dr. Oken’s testimony could not have affected the jury’s decision to convict. In other words, the limited nature of the testimony could not have given the jury the "much sought-after hook on which to hang its hat.” Beckley, supra at 722 (opinion of Brickley, J.).
Moreover, the prosecutor’s closing statement, which invited the jury to believe that complainant was a battered woman on the basis of Dr. Oken’s testimony, was not error in itself. Prosecutors are permitted to argue the evidence and make reasonable inferences in order to support their case theory. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995). However, given our holding with respect to the testimony itself, we review its effect on the jury’s verdict. In this case, we are persuaded that it could not have affected the jury’s decision. Dr. Oken testified that he could not even determine whether a person was a battered woman after one visit, let alone without ever treating complainant or defendant. Given that the prosecutor’s contention was not evidence and was based on Dr. Oken’s general explanation of the syndrome, it could hardly have been enough to tip the scale in favor of conviction.
iv
At issue in this case is the admissibility of expert testimony regarding the battered woman syndrome when offered to explain a complainant’s testimony and actions. We hold it admissible only when the witness is properly qualified and it is relevant and helpful in understanding an issue in the case. Typically, this includes an explanation of the complainant denying or minimizing the abuse, delays in reporting, or subsequently recanting the abuse.
In this case, we deem the expert testimony irrelevant and not helpful in explaining any fact in issue. Hence, the trial judge abused his discretion in admitting the testimony. Nonetheless, the limited nature of the testimony, coupled with physical and corroborating evidence of abuse, makes the error harmless. Hence, we reverse the Court of Appeals decision with respect to the expert testimony, but affirm the result because of the harmless nature of the testimony.
Brickley, C.J., and Boyle, Mallett, and Weaver, JJ., concurred with Riley, J.
See parts ii(a) and (c).
MCL 750.520b; MSA 28.788(2).
MCL 750.110; MSA 28.305. Alleged to have occurred on January 23, 1990.
MCL 750.110; MSA 28.305. Alleged to have occurred on January 25, 1990.
They dated from 1984 to 1985 and then again from 1988 to 1989, shortly before the alleged incident.
Complainant had the apartment manager change the deadbolt lock on the door and place the apartment in her name only. Apparently, however, the main door lock remained the same and thus defendant still possessed a key.
However, defendant testified that complainant invited defendant to the apartment, that he knocked on the door, and that he was asked inside. Although defendant possessed a key to the apartment, he did not use it on January 23, 1990.
Despite the contractions, by defendant’s own testimony, he left and said he would call her later. If the contractions persisted, defendant testified, he would come back and take complainant to the hospital.
Dr. Jensen testified that some of the injuries possibly could have been self-inflicted, except for the scratches that, because of the angle of the cuts, probably could not have been self-inflicted. Defense counsel attempted to explain these scratches by eliciting that they most likely were inflicted by someone with long nails. When defendant testified, he stated that he neither had long nails on January 23, 1990, nor on the date of the trial.
Defendant stated that complainant telephoned him and told him to go to the apartment and take these cards. Defendant theorized that she brought the rape charge in retaliation for defendant’s threat to report a series of incidents in which complainant stole from her employer. Defendant telephoned Sergeant Fred Reid, whose name was on the business card, and denied the rape charge. Sergeant Reid testified that defendant admitted searching the apartment on January 25, 1990. Defendant then told Sergeant Reid that he found some money orders and wanted to file a report that complainant had stolen money from her employer.
The record reveals that complainant readily admitted these types of acts.
The Court also held that evidence of prior instances of sexual abuse did not violate MRE 404(b) "because it was not an effort to prove defendant had a bad character[, but] [r]ather, it was an effort to place the charged activity in context so that the jury could better appreciate the competing claims of force and consent.” Slip op at 1. The Court further rejected claims that the verdict was against the great weight of the' evidence, that the jury verdict demonstrates jury confusion, and that his sentence was inappropriate. These issues are not before this Court.
447 Mich 1048.
See Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959); Dacon v Transue, 441 Mich 315, 328-329; 490 NW2d 369 (1992); Poet v Traverse City Osteopathic Hosp, 433 Mich 228, 251; 445 NW2d 115 (1989).
The battered woman syndrome is a subcategory of posttraumatic stress disorder. Bechtel v State, 840 P2d 1, 7 (Okla Crim App, 1992).
Opinions of Justices Brickley and Boyle, respectively,
People v Davis, 343 Mich 348; 72 NW2d 269 (1955); Frye v United States, 54 App DC 46; 293 F 1013 (1923).
Defendant does not contend that the Davis/Frye rule should apply to battered woman evidence,
Joined by Justices Levin and Griffin.
Justice Brickley would further hold that the expert may not introduce new facts on the basis of personal observations unless the evidence otherwise would be admissible.
Joined by Justice Cavanagh.
Joined by then-Chief Justice Riley.
Because the parties have not argued and the facts do not present it, we do not address whether or when the expert may testify about consistencies between the victim and an actual abuse victim. We save that discussion for another day.
In most cases, these limitations dispel any fear of unfair prejudice.
We review a trial court’s decision finding an expert qualified for an abuse of discretion. See Bahr v Harper-Grace Hosps, 448 Mich 135, 141; 528 NW2d 170 (1995). The determinative inquiry in qualifying an expert is the "nature and extent of knowledge and actual experience . . . .” Beckley, supra at 712. Given Michigan’s liberal application of expert qualification and a review of Dr. Oken’s credentials and experience, it is beyond dispute that he was properly qualified. Simply because he never treated complainant or defendant does not disqualify him. He practices in the area of domestic violence and battered spouses and has read and written extensively in the area. The trial judge did not abuse his discretion in qualifying him as an expert witness.
See Wilson, supra at 603, citing 18 ALR4th 1153 ("the majority of jurisdictions favor the admissibility of expert testimony regarding the [battered woman syndrome]”). Dr. Walker’s premise and understanding of a battering relationship has been widely accepted throughout the United States, and we now join the majority of jurisdictions recognizing the discipline.
Implicit in all these situations is the factual premise allowing a reasonable jury to infer that the complainant could be a battered woman within the meaning of Dr. Walker’s definition. See, generally, Prendergast, Evidence — The admissibility of expert testimony on battered woman syndrome under the federal rules of evidence — Arcoren v United States, 929 F2d 1235 (CA 8, 1991), cert den 112 S Ct 312 (1991), 65 Temp L R 341 (1992). In this case, this factual premise was present in the record although, for the reasons stated below, other necessary premises were absent.
We agree with the dissenting justice that rebuttal is a purpose or reason for admission of battered woman syndrome testimony; however, it is not the only one. Post at 601. Even without specific argument of counsel, the factual premises may trigger popular misconceptions in the minds of the jury, especially because adult jurors have generally experienced relationships from which they develop an understanding of what a reasonable response would be to a given situation. Under a relevant and helpful standard, expert testimony is permitted in limited situations to explain or dispel these misconceptions about a battering relationship.
Indeed, in Pruitt v State, 164 Ga App 247; 296 SE2d 795 (1982), the Georgia Court of Appeals considered the admission of expert testimony regarding the battered woman syndrome and found it to be error in admitting the testimony. The triad testimony was hotly contested with no evidence that the complainant was ever a battered woman. Accordingly, the court found error, but deemed it to be harmless in a bench trial in which the trial judge did not appear to rely on the testimony in reaching his decision. Id. at 249. See also Sanders v State, 251 Ga 70; 303 SE2d 13 (1983) (battered parent syndrome offered against defendant was error because defendant had not placed her character at issue or raised some defense necessitating such evidence).
The trial judge relied on Ciskie in admitting the instant testimony.
While permitting some testimony, the court also approved limiting the testimony when the probative value was outweighed by the danger of unfair prejudice: "The trial court properly found that there was danger of such prejudice if [the expert] were to present to the jury a diagnosis of [the complainant] as a rape victim, and accordingly barred such testimony.” Id. at 279.
The court rejected limiting expert testimony only to bolstering an assertion of self-defense. If the evidence would assist the jury in understanding the evidence, the court held, then "it is immaterial whether the testimony is presented by the prosecution or by the defense.” Id. at 1241.
It would seem anomalous to allow a battered woman, where she is a criminal defendant, to offer this type of expert testimony in order to help the jury understand the actions she took, yet deny her that same opportunity when she is the complaining witness and/or victim and her abuser is the criminal defendant. [Id. at 612.]
Accord State v Freeney, 228 Conn 582; 637 A2d 1088 (1994). See also State v Christiano, 228 Conn 456, 462; 637 A2d 382 (1994) (expert testimony regarding child sexual abuse accommodation syndrome was admissible to explain a child’s delay in reporting the incident).
We encourage trial judges to actively question counsel about the exact purpose of the testimony and any expected questioning, testimony, or other evidence that may make the testimony relevant. As with many questions not subject to a bright-line rule, "[t]he ultimate goal is an enlightened basis for the trial court’s conclusion of relevance . . . .” People v VanderVliet, 444 Mich 52, 91; 508 NW2d 114 (1993).
The trial judge instructed the jury that "[t]he lawyers’ statements and arguments are not evidence. They are only meant to help you understand the evidence on each side’s legal theories.”
However, even assuming the existence of these premises, the trial judge may still exclude the evidence when its probative value is substantially outweighed by the danger of unfair prejudice. | [
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Mallett, J.
The defendants in these consolidated cases were convicted of negligent homicide and involuntary manslaughter, respectively, both arising out of the use of automobiles. In separate decisions, the Court of Appeals reversed their convictions, holding that a defendant may be convicted of these offenses only if his culpable conduct is found to be "the” proximate cause of death. We would reverse the decision of the Court of Appeals in Kneip, and would reverse in Tims.
i
FACTS AND PROCEDURAL HISTORY
A
PEOPLE v TIMS
This case arises out of a fatal accident that took place at approximately 8:30 p.m. on Sunday, July 9, 1989. It was a clear day. Shortly before the accident, the defendant and Bobby Osborne engaged in a drag race on Jennings Road in Genesee County. The defendant was driving a blue Pontiac Trans Am. Osborne was driving a Chevrolet Z-28 Camaro.
Even after the drag race ended and Mr. Osborne had stopped at the side of the road, the defendant continued to drive extremely fast. The most complete description of the accident comes from witness Daniel Frederick, who was traveling southbound — the same direction as the defendant — in the far right lane. Earlier, he had passed between the defendant’s car and Mr. Osborne’s car as they were preparing for their race. He essentially stated that the victim, who checked for traffic before entering the road, jogged across the southbound lanes a safe distance in front of his car, which was traveling the legal speed limit. When the victim reached the northbound lanes, he was struck by the defendant’s southbound car, which had been traveling at about twice the speed limit and had swerved into the northbound lanes in an attempt to avoid him:
A. I noted that the blue car was closing the gap between our cars, you know, rapidly, and I, ah, noted that he also, as I traveled down I noted that he cut over one lane. In other words, he went into the — still in the southbound lanes, but heading— he was in the west whereas he was in the east lane cornin’ up from behind.
Q. So he is in the center?
A. Yes, that’s correct. And I continued down to the baseball players — the two guys playing base ball. I didn’t see the ball go. I assume they were hit — earlier I had seen them hit a ball, so I assumed that they were . . .
Q. Well, don’t — don’t assume. Just tell what you saw?
A. I saw a guy — there was probably, oh, a car- and-a-half, two cars ahead of me and I saw the guys that was playin’ ball in front of my car. He had an adequate amount of time. I didn’t even have to slow up.
Q. How many car lengths is this now?
A. I would estimate probably about two car lengths.
Q. How long are you calling a car length?
A. All right, let’s say car lengths would be — let’s say — well, actually it would be more than that. I would say probably 30 feet anyways.
Q. So he runs into your lane?
A. I think that would be a better explanation. A jog — kind of a slowish jog into the street. Like I said, he had plenty of time to get in front of my car. I noted that he looked at me and seen he had time and ran . . .
■ Q. Okay, you saw him look at you. You looked to the left?
A. Yeah, he looked in my direction and saw my car.
Q. Was that before he entered the street?
A. Yes, it was.
Q. Now he enters Jennings Road and he goes where?
A. Continues on across the street. Now he goes into the next lane, which would be the — still in the southbound lanes, and he went into the— which would be the westbound lane — excuse me, the western lane, and . . .
Q. You would have been in lane number 1.
A. I would have been in lane number 1. Okay. The baseball player cut in front of my car, going from 1 towards 2. All right . . .
Q. What did you see happen when he was in lane 2?
A. I glanced in my rear view mirror and the blue car was rapidly closing the gap. He was in the same lane as. the young man runnin’ — or joggin’. At that time the blue car.veered to the left to avoid him. He went over into what would be the northbound lanes, probably one-and-one-half lanes, so he was probably — his car — he had probably— from the driver’s wheel I would say he had like maybe two feet before he would have hit the curb.
Q. But where was the person?
A. Okay, in the second lane he glanced over this way to the left, but he was still running. He ran— continued to run, saw the blue car, and did like— the best way I can describe it it would be a momentary pause or stop.
He would be in — by now he was in — probably what would be lane 3. In other words, he would have been in the northbound lanes.
Q. He would have crossed the center line?
A. Yes.
Q. After he did that little pause what did he do?
A. After he did the pause he looked and then he just took a step?
Q. And then what happened?
The right front fender of the defendant’s car hit the victim, Greg Amman, whom the parties stipulated had a blood alcohol content of 0.09 percent by weight, "and kind of rolled him along the side, and at the post — around the door post it threw him off and he sort of slid ending up almost in the center line.”
The evidence supporting the verdict establishes that the defendant was driving approximately ninety miles an hour when the right front fender of his car struck the decedent, and seventy to eighty miles an hour a quarter to half a mile down the road. Mr. Frederick testified that the car struck the victim just as Mr. Tims had completed passing him. At that time, he was traveling at forty-five miles an hour himself, and the defendant was traveling at ninety miles an hour.
John Gough testified that as he was traveling northbound on the inside (west)'lane of Jennings Road about one-half to one-quarter mile south of the accident, "I seen a body flying through the air, a blue Trans Am goin’ — well, after I seen the body cornin’ in my lane, so I come to a stop, and the Trans Am went by me on the right and another car went by me on the left — a silver Camaro.” Mr. Gough, a thirty-two-year-old former drag racer, estimated that the blue Trans Am was traveling severity to eighty miles an hour at the time it passed him.
Two separate sets of recently made skid marks were observed at the scene of the accident: a set of marks sixty-one feet long, crossing the center line, and a set of skid marks twenty-nine feet long, following those. Officer Caterer testified that the gap between the two sets of skid marks could be caused by one of two factors: "the fading of the brakes or the fact that the tire was locked and sliding but just not merely making a mark on that concrete surface,” which he had previously explained does not show skid marks well.
An accident reconstruction expert who was asked about the minimum speed necessary to produce a skid mark sixty-one feet long answered that a car must be traveling at a minimum speed of about thirty-nine to forty-three miles an hour. The figure of thirty-nine to forty-three miles an hour appears to be calculated with the assumption that the defendant’s car stopped at the end of sixty-one feet. As stated previously, however, the defendant did not stop either when he struck the victim or at the end of the first skid mark, and instead drove on at a speed of between seventy and eighty miles an hour.
The defendant did not challenge the sufficiency of the evidence on appeal. Instead, he claimed that the trial court erred in instructing the jury that the defendant’s conduct must be " 'a substantial’ cause of the fatal accident.” Defense counsel, who argued in closing that the victim darted out in front of the defendant’s car and that the defendant could not have avoided the accident, had requested an instruction that the defendant’s conduct must be "the” cause of the accident. The Court of Appeals agreed that the instruction was erroneous, and reversed. 202 Mich App 335, 339-340; 508 NW2d 175 (1993). We granted the prosecutor’s application for leave to appeal. 445 Mich 862 (1994).
B
PEOPLE v KNEIP
At approximately 1:50 a.m. on August 25, 1990, Steven Barnes was killed when defendant Kneip’s vehicle struck him. Mr. Barnes, a barefoot pedestrian, clad only in a pair of shorts and carrying his tennis shoes — one in each hand — was slowly crossing Haggerty Road near Cherry Hill Road in Canton Township. This area was dark and was not illuminated by artificial lighting. Mr. Barnes had reached the left-turn lane when defendant’s vehicle approached. Defendant, who was driving south on Haggerty Road, proceeded into the left-turn lane in order to negotiate a left turn, when his vehicle struck Mr. Barnes. Defendant was not speeding, and there is no. indication that he was driving erratically. However, he was drunk. Thus, his ability to react properly was impaired. A blood alcohol test administered three hours after the accident revealed that defendant had a blood alcohol level of 0.18 percent.
A witness of the accident examined Mr. Barnes immediately after the impact and determined that he was still breathing. As a result of the impact, he was thrown from the left-turn lane into the middle of the northbound lane of Haggerty Road. His head was pointing east toward the curb, and his feet were pointing west toward the center lane of Haggerty Road. As the witness knelt over Mr. Barnes, a second car approached. The witness tried to flag the car down, but it drove over Mr. Barnes, causing severe internal injuries and narrowly avoiding contact with the witness. Expert testimony indicated that both sets of injuries were severe and independently could have resulted in Mr. Barnes’ death.
Defendant was tried in a bench trial before Detroit Recorder’s Court Judge Michael F. Sapala. The judge recognized that a conflict exists regarding the proximate cause element. He ruled as follows:
"When a number of factors contribute to produce an injury, one actor’s negligence will not be considered a proximate cause of the harm unless it was a substantial factor in producing the injury.”™
The defendant’s conduct, then, was without question a substantial cause of the death of the deceased.
The court rendered an oral opinion, finding that defendant’s negligence was "a” proximate cause of Mr. Barnes’ death. He also noted that Mr. Barnes’ contributory negligence of walking in the left-turn lane of an extremely dark road, although not considered an affirmative defense, and the negligence of the second driver both were "factors leading to the death of the deceased . . . Defendant was sentenced to five years probation, with the first year to be spent on a tether. The tether option was subsequently removed, leaving the remaining sentence intact.
The Court of Appeals reversed defendant’s conviction. Although the panel believed that "a” proximate cause is the appropriate standard, it was obligated by Administrative Order Nos. 1990-6 and 1993-4 to follow Tims. We granted the prosecution’s application for leave to appeal. 446 Mich 866 (1994).
ii
LEGAL BACKGROUND
Because the causation element for negligent homicide and involuntary manslaughter is defined by the common law, we must examine the case law of Michigan and foreign jurisdictions regarding the proximate cause elements of these crimes. Involuntary manslaughter, of which defendant Kneip was convicted, is proscribed by MCL 750.321; MSA 28.553, which does not specifically define the offense. "Involuntary manslaughter is the unintentional killing of another without malice” in combination with a specified culpable act or mental state, People v Beach, 429 Mich 450, 477; 418 NW2d 861 (1988) (emphasis added), which includes a causation component. We construe the causation element in accordance with its common-law meaning.
Negligent homicide, of which defendant Tims was convicted, is also proscribed by statute. See MCL 750.324; MSA 28.556. Although the statute includes a causation element, it provides no guidance regarding the scope of that element. Thus, the scope and necessary connection between the act and injury has been left to common law.
The common-law causation element is comprised of two components, cause-in-fact or proximate/ legal cause. In order to convict a defendant of a criminal negligence offense, the prosecutor must prove beyond a reasonable doubt that the defendant’s conduct was a factual cause of the fatal accident. Current Michigan practice is to instruct the jury that a defendant’s conduct must be "a substantial cause,” which appears to combine two verbal formulas employed in other jurisdictions: that a defendant’s negligence must be a "but for” cause, or that it must be a "substantial factor.”
Although a cause-in-fact relationship is often sufficient, cases arise in which the death is so remote from the defendant’s conduct that it would be unjust to permit conviction. In such a case, the question for the jury is whether the defendant’s conduct was the proximate or legal cause of the decedent’s death. See, e.g., People v Barnes, 182 Mich 179, 198; 148 NW 400 (1914).
in '
THE DEFENDANTS’ CLAIM OF ERROR
Each defendant raises the same arguments: he may be convicted only if his conduct was "the” cause of death, and his conviction was erroneous because the trier of fact determined only that his culpable conduct was "a” cause. The rule urged by the defendants, if accepted, would mean that the negligence of either the victim or a third party, if it was also a proximate cause of death, would be a complete defense._
The defendants’ arguments were accepted by the majority of the Court of Appeals in Tims. Although agreeing with the view that the defendant’s conduct need only be "a” substantial cause of the accident, the majority reluctantly concluded that this Court’s decisions in People v Barnes, supra, People v Townsend, 214 Mich 267, 275; 183 NW 177 (1921), and People v Layman, 299 Mich 141, 145; 299 NW 840 (1941), held that a defendant’s culpable conduct must be "the” cause of death, as opposed to "a” cause:
Although we recognize that this Court has created a conflict on this issue, we are precluded from resolving it. No conflict exists on the issue within the Michigan Supreme Court. According to our Supreme Court, in order for a defendant to be convicted of vehicular homicide, his conduct must be "the proximate cause” of the death. [202 Mich App 339-340 (Marilyn Kelly, J.).]
On this basis, the Court found that the jury instructions were error requiring reversal.
We agree with the Court of Appeals understanding that the proper test is "a” cause. There is no support in this Court’s decisions for the contrary view, and no policy justification for its adoption.
The phrase "the proximate cause” is a legal colloquialism reflecting the reality that, particularly in homicide cases, there is almost invariably only one culpable act that could be considered a direct cause — a knife being stabbed, a gun being fired, or a car driven recklessly. The phrase does not imply that a defendant is responsible for harm only when his act is the sole antecedent.
The suggestion that the presence of an additional "cause” of death could be a complete defense to negligent homicide is inconsistent with accepted notions of responsibility. Acceptance of such a proposition would require, for example, that if an infant died because it was locked in a hot car on a sunny day, and the child was left there by two parents rather than one, neither could be found criminally responsible. Similarly, if a guest died in a hotel fire that began because another guest was setting off firecrackers in a room, the latter guest’s extremely culpable conduct would be excused or mitigated if it turned out that, unknown to him at the time, another person doing the same thing also set a fire accidentally at the other end of the hotel. Such examples illustrate the basis for the sound proposition embodied in the doctrine of "a” substantial cause, that joint equal causes do not excuse culpable behavior.
A
PEOPLE v TIMS: THE ACTS OF THE VICTIM
The other "causal factor” in Tims was the alleged negligence of the victim. The defendants’ proposed rule, if accepted, would make the negligence of the victim a complete defense in prosecutions of negligent homicide and vehicular manslaughter. Our Court, however, has long held that although a victim’s contributory negligence is a factor to consider in determining whether the defendant’s negligence caused the victim’s death, it is not a defense. In People v Barnes, 182 Mich 195 (adopting State v Campbell, 82 Conn 671; 74 A 927 (1910), we noted:
"The rule of law concerning contributory negligence by the injured person, as a defense in civil actions for damages for personal injuries, had no application to this case. The State was required to prove the alleged unlawful act of the accused and its consequences, but not that the deceased exer cised due care to avoid the consequences of that unlawful act.”
We reaffirmed that rule in People v Campbell, 237 Mich 424; 212 NW 97 (1927), in which we reversed the defendant’s conviction because the trial court excluded evidence of the victim’s conduct that was relevant in determining whether the defendant was negligent. In the process, we noted that, although the victim’s negligence is admissible for that purpose, it is not a defense:
The defendant . . . testified that he was keeping a lookout, but that he assumed that no person would be walking out in that part of the highway where he was driving. The deceased were not crossing the highway. . . . Considering the darkness, the misty atmosphere, the slippery condition of the pavement, their position in the highway, the fact that there was a safer place to walk, and their knowledge of the fact that automobiles would be constantly overtaking them from the rear, were the deceased, at the time of the accident, using ordinary care for their own safety? If they were not, that fact would not be a defense, but it would be an important factor in the case which the defendant would be entitled to have the jury consider. [Id. at 431. Emphasis added.]
This longstanding Michigan rule is no aberration. It appears to be the universal rule.
In Tims, the trial court properly instructed the jury that it "must consider the conduct of Mr. Amman in determining whether the driving of Mr. Tims was a substantial cause of the accident.” Because the alleged negligence of the victim, if established, would not have required acquittal, it was proper to instruct the jury that the defendant’s conduct need only be "a” proximate cause of death.
B
PEOPLE v KNEIP: THE ACTS OF A THIRD PARTY
Kneip involves not only possible negligence by the victim, but also by a third party. It is equally well established that the negligent act of a third party is not a defense, but is only one factor to be considered in ascertaining whether the defendant’s negligence caused the victim’s death.
This Court’s decision in Townsend, although not controlling in this case, affirms the rule that the contributory negligence of a third party is not a defense. The defendant, who had driven while intoxicated, struck a tree. His passenger died in the hospital. The defendant objected to the jury instructions in his trial for involuntary manslaughter, which stated that the medical treatment received by the decedent was a defense only if it was grossly negligent. In affirming the defendant’s conviction, this Court recounted that a defendant’s act may be the cause of death even if ordinarily (as opposed to grossly) negligent treatment contributed to the death:
Defendant cannot exonerate himself from criminal liability by showing that under a different or more skilful treatment the doctor might have saved the life of the deceased and thereby have avoided the natural consequences flowing from the wounds. Defendant was not entitled to go to the jury upon the theory claimed unless the medical treatment was so grossly erroneous or unskilful as to have been the cause of the death, for it is no defense to show that other or different medical treatment might or would have prevented the natural consequences flowing from the wounds. [214 Mich 279.]
The Court quoted from a treatise in which the rule of law was "well stated”:
"He who inflicted the injury is liable even though the medical or surgical treatment which was the direct cause of the death was erroneous or unskilful, or although the death was due to the negligence or failure by the deceased to procure treatment or take proper care of the wound. The same is true with respect to the negligence of nurses or other attendants. This rule is sometimes stated with the qualification that the wound must have been mortal or dangerous; but it is usually held that the defendant is liable, although the wound was not mortal.” [Id. at 278-279.]
In Kneip, the other "causal factor” was the unidentified car that ran over the victim after he was struck by the defendant. The expert testimony, however, was that the victim would have died whether or not he had been struck by the second car. '
iv
THE POSITION OF THE DISSENTING OPINION
We are apparently unanimous in rejecting the defendants’ only claim of error. The signers of the dissenting opinion would nevertheless reverse the defendant’s conviction in Tims by establishing and applying retrospectively a rule that has not been asked for by the parties or addressed by any court at any stage of this litigation: that a "defendant’s conduct sufficiently dominated the other contributing factors ... to be fairly deemed a criminal proximate cause . . . .” Post at 111.
We note that, like the defendants’ proposed rule, the dissenters’ proposed requirement also fails the test of common sense. Insofar as it requires that a "defendant’s conduct dominate[] other contributing factors,” the justices would apparently forbid any conviction where a death was jointly caused by independent but identical acts, such as parents who leave their child in a hot car to suffocate. From both a common-sense and a legal perspective, we cannot discern any reason that a defendant whose negligent conduct causes the death of a person should be excused by virtue of the fact that another person was also negligent.
To the extent that the proposed requirement is intended to prevent drivers from being convicted for homicide for accidents that they could not have avoided, the law has prevented this unjust result for at least a century. The exacting rules of criminal causation dictate that a driver is not in fact or law the cause of a deceased’s death unless the proofs are such that a jury could find beyond a reasonable doubt that the defendant could have avoided the accident. Absent such proofs, the defendant is entitled to dismissal of the charge, a directed verdict, or an order reversing the conviction.
The rule that a defendant may not be convicted for a crime that he could not have avoided has long been settled. For example, Queen v Dalloway, 2 Cox 273 (CC, 1847) (summarized in Perkins & Boyce, Criminal Law [3d ed], p 787), involved the death of a child who suddenly ran out in front of a horse-drawn vehicle and was killed. The jury was charged that if, by the utmost care on his part, the driver could not have prevented the accident, he must be acquitted.
This Court adopted the same rule in 1914. See People v Barnes, supra. That case involved the death of a young woman, Mary Robb, who was fatally injured when she was struck by the defendant’s car. The defendant testified that as he drove within a few feet of two girls, "the Robb girl got in front of the machine.” Id. at 183. The trial judge instructed the jury that if the defendant was driving in excess of ten miles an hour,
then he may be found guilty of manslaughter, even though he made the best endeavor possible under such speed to avert the accident, and even though Mary Robb, in bewilderment, or heedlessness, or carelessness, ran in front of the automobile .... [Id. at 189.]
We reversed the defendant’s conviction because "the charge of the court eliminated all necessary connection between the speed of the car and the death of Mary Robb.” Id. at 197. "From aught that appears in this record, the injury might have occurred just the same if the respondent had been running 9 miles an hour as it would were he running 11 miles an hour.” Id. at 192.
[W]ould it be claimed here that, because respondent was by one mile per hour exceeding the legal speed limit, he would be responsible for the death of Mary Robb, if in her excitement and confusion she jumped in front of the car at a time when it was physically impossible for the respondent to stop it before inflicting the injury? Would the mere fact that a car was being operated slightly in excess of the legal speed limit make a respondent guilty of manslaughter if a person wilfully threw himself in front of the car and received injury? To ask these questions is to answer them in the negative. [Id. at 195-196.]
By claiming that it has established this principle for the first time, the dissent would invite attacks on convictions obtained under settled rules that presented the identical concept to factfinders, albeit in different words than those now decreed.
Despite protestations to the contrary, the dissent incorrectly advances the notion that a victim’s negligence can be a defense to negligent homicide under certain circumstances, rather than simply a factor for the jury to consider. Thus it appears that the dissent holds that unless defendant’s act is found to "sufficiently dominate” other causes, a defendant would apparently be entitled to acquittal even if a jury finds that
(1) the defendant was negligent,
(2) the -victim would not have died but for the defendant’s negligence, and
(3) the death was a foreseeable risk of the defendant’s conduct.
The established rule' is that the negligence of the victim, if any, should be considered in making determinations 2 and 3. The negligence of the victim is grounds for acquittal only when it shows' that the defendant was not negligent or did not cause the decedent’s death. Where the jury finds that those requirements are satisfied, the conduct of the victim is not a defense.
A
THE OSTENSIBLE JUSTIFICATION
The dissent attempts to justify the claimed need for a new rule with the claim that "the criminal standard [for causation] should remain higher [than the civil standard].” Post at 118. This argument is a non sequitur; the dissent fails to explain why the longstanding criminal standard for causation should be heightened simply because the civil standard has been lowered (by the replacement of the contributory negligence defense with comparative negligence). The relevant rules of criminal causation have been the same for more than a century, and the dissenting opinion has failed to point to any circumstances, actual or hypothetical, in which they would allow an unjust conviction. In sum, the dissenting opinion fails to provide a single reason to change these rules and thereby reverse the conviction in Tims._
The dissenting opinion relies heavily on Commonwealth v Root, 403 Pa 571; 170 A2d 310 (1961), for the proposition that criminal causation rules must be amended because they are tied to tort notions of proximate cause that have been liberalized substantially. See post at 119-122. This premise is simply incorrect. As a matter of historical fact, the rules of causation in criminal cases are not tied to the rules of causation in civil cases. For that reason, among others, the rules of criminal causation have not changed a whit in the face of expanding civil liability. The relevant rules have been the same for at least a century. First, the defendant’s conduct must be a cause of the harm sine qua non. See, e.g., People v Barnes, supra. Second, the harm must be a foreseeable risk of the defendant’s conduct. See, e.g., People v Rockwell, 39 Mich 503 (1878) (the defendant hit the victim and left him lying in a field where a horse later trampled him to death; the conviction was reversed because the death was unforeseeable). In particular, the rule that the dissenting opinion would change — that foreseeable negligence by the victim is not a defense — seems to have been settled before 1930. See anno: Negligent homicide as affected by negligence or other misconduct of the decedent, 67 ALR 922 (collecting cases holding that a victim’s negligence is no defense to negligent homicide).
To the extent that Commonwealth v Root, supra, holds that a victim’s contributory negligence can be a defense, and this is the commentators’ read ing of that case, it is no longer the law even in Pennsylvania. See, e.g., Commonwealth v Long, 425 Pa Super 170; 624 A2d 200 (1993) (holding that the victim’s intoxication was not a defense to homicide as long as the victim’s death is the natural and foreseeable consequence of the defendant’s actions). Even if other jurisdictions have "followed the Root rationale,” post at 121-122, the dissenting opinion does not point to any jurisdiction holding that a victim’s negligence can be a defense. As examples, the dissenting opinion cites decisions from New York and Maryland. Both states, however, follow the rule that the negligence of the victim is not a bar to criminal liability. See People v Cruciani, 36 NY2d 304, 306; 367 NYS2d 758; 327 NE2d 803 (1975); People v Joseph, 11 Misc 2d 219, 237; 172 NYS2d 463 (1958); Wilson v State, 74 Md App 204, 213; 536 A2d 1192 (1988).
Root has been criticized on other grounds as well. Regarding Root and Commonwealth v Redline, 391 Pa 486; 137 A2d 472 (1958), Professor LaFave explains that "to the extent that these cases rely wholly or in part upon the requirement of legal cause as a means of limiting these doctrines, they tend to distort the meaning of legal cause.” LaFave & Scott, Criminal Law (2d ed), § 3.12(h), p 298. _
B
HARMLESS ERROR ANALYSIS
Despite the fact that a majority of this Court has rejected the only claim of error in Tims, it appears that a new trial will be ordered. The Court in Tims is equally dividéd because of harmless error analysis by the dissenting justices that is factually incorrect and contrary to the standard but recently endorsed by five members of this Court. Even though we do not agree with the dissent’s proposed rule for proximate causation, we note that the instructions, arguments, and verdict show that the jury in Tims made the finding necessary to satisfy that test. Consequently, the conviction should be reinstated even under the dissent’s test.
The dissent would hold that its standard of criminal causation is satisfied when the trier of fact finds that the defendant should have been able to avoid the accident. It would affirm the conviction in Kneip because the trial judge satisfied its requirement by virtue of making the following finding:
"In this case, there was nothing wrong with the defendant’s car; the headlights were functional. In other words, all reasonably prudent drivers must be able to drive, and in fact drive in a manner so as to avoid hitting pedestrians in the roadway; even if a pedestrian’s presence is unexpected; except, of course, where you truly have a case of an individual darting in front of a car as it approaches; where you have a pure accident. That’s not the case here.
"I find that although the area is clearly dark, and at the time of the impact there was no meaningful street or store lighting; the defendant should have easily been able to avoid the deceased; especially when he was not speeding, or indeed when he was probably under the speed limit.” [Post at 127-128. Emphasis added.]
This same finding was also made by the trier of-fact in Tims. The question whether the defendant should have been able to avoid the victim was the primary focus of the trial. Counsel repeatedly argued that his client should not be convicted because he could not have avoided the accident. The jury was instructed that it must not convict the defendant if the accident was unavoidable:
Slight negligence is characterized by acts which are not naturally or inherently dangerous to life, which only an extremely careful person would have foreseen as likely to produce injury to another. The fact that an accident occurred is not in itself any evidence of negligence. Whatever is unavoidable by the exercise of due and reasonable care is not a crime. Slight negligence is not a crime. It is that degree or kind of negligence which is below or less than ordinary negligence. In this case if you find that a defendant was negligent, but his negligence was only slight negligence, then you must return a verdict of not guilty. [Emphasis added.]
Anticipating this instruction, Mr. Tims’ attorney incorporated it into his argument. In addition, the jury was specifically instructed that it should consider the victim’s negligence, if any, in determining whether the defendant was the cause of the accident.
The jurors’ decision to convict in the face of these instructions and arguments compels the conclusion that they rejected the defendant’s argument and found that the defendant could have avoided the victim with the exercise of reasonable care. Because of this finding, which is sufficient to satisfy the dissent’s "new” requirement, any technical imperfection in the instructions was not error:
Jury instructions are reviewed as a whole rather than examined piecemeal to establish error. People v Watkins, 178 Mich App 439, 450; 444 NW2d 201 (1989), rev’d on other grounds 438 Mich 627; 475 NW2d 727 (1991). Even if somewhat imperfect, there is no error if the instructions fairly presented the issues to be tried and sufficiently protected the defendant’s rights. Id. [People v Vaughn, 447 Mich 217, 232; 524 NW2d 217 (1994) (opinion of Brickley, J.).]
The dissenters’ decision to reach opposite results in these cases that are apparently identical for purposes of the relevant inquiry is inconsistent with the most basic notions of justice.
v
For the foregoing reasons, we would reverse the decisions of the Court of Appeals in Kneip, and would reinstate the defendant’s conviction. In Tims, we would reverse the decision of the Court of Appeals and reinstate the defendant’s conviction.
Boyle and Riley, JJ., concurred with Mallett, J.
Weaver, J., concurred only in People v Kneip.
For purposes of the hypothetical question, the prosecutor seems to have made the charitable assumption that the defendant was responsible for only the first set of skid marks, even though the evidence indicated that the defendant was traveling fast enough to make both sets of marks, and both sets of marks were recently made at the time of the accident.
In his closing argument, the prosecutor described this testimony incorrectly:
You heard Sergeant Caterer testify. Accident reconstruction expert. You heard him give a minimum speed of 22 when Mr. Amman was hit, or an [sic] maximum speed of 39 to 43.
The closing argument of the defendant’s attorney, however, demonstrates that the expert’s testimony was clear to the parties and the jury:
But we have presented by the prosecution an expert, who using scientific data concluded that at a minimum, based upon the slide of the young man’s body, at a minimum the speed was 22 miles an hour. Based upon the 61 foot skid mark, the minimum speed was 39 to 43 miles per hour.
The dissent states that we disregard the scientific evidence as incredulous and rely on the testimony of Mr. Gough. Post at 113, n 2. However, the dissent misinterprets our reliance on Mr. Gough’s testimony. We accept, without qualification, the scientific evidence and accident reconstructionist’s expert testimony. The expert testimony presents an opinion on the basis of hypothetical facts that were not in existence in the present case. Namely, in the hypothetical example, the defendant’s vehicle came to a stop when he struck the victim. However, in the present case, Mr. Gough witnessed the accident and testified that defendant’s vehicle did not, in fact, come to a stop when he struck the victim, but instead, continued beyond the point of impact. The source of our disagreement with the dissent’s interpretation of the facts rests with its failure to appreciate the distinction between the expert’s response to the hypothetical example and the facts as they exist in the present case.
Judge Sapala stated:
There is a serious conflict in the State of. Michigan over the issue of whether a defendant’s negligence need be the only cause of death, or only a cause of death.
Quoting from Brisboy v Fibreboard Corp, 429 Mich 541, 547; 418 NW2d 650 (1988).
See, generally, LaFave & Scott, Criminal Law (2d ed), § 3.12(b), pp 279-281.
In our nonexhaustive search, the cases are unanimous.
See, e.g., State v Malone, 819 P2d 34 (Alas App, 1991) (the victim’s contributory negligence was no defense to criminal negligence); People v Lett, 77 Cal App 2d 917; 177 P2d 47 (1947) (the victim’s contributory negligence was no defense to vehicular manslaughter); People v Maire, 705 P2d 1023 (Colo App, 1985) (the victim’s contributory negligence was no defense to vehicular homicide); Deshazier v State, 155 Ga App 526; 271 SE2d 664 (1980) (unless it was unforeseeable, the negligence of the victim is no defense in drunk driving homicide); State v Taylor, 67 Idaho 313; 177 P2d 468 (1947) (the victim’s contributory negligence was no defense to drunk driving vehicular manslaughter); State v Plaspohl, 239 Ind 324; 157 NE2d 579 (1959) (the victim’s contributory negligence was no defense to reckless homicide prosecution arising out of a drag race); State v Moore, 129 Iowa 514; 106 NW 16 (1906) ("contributory negligence, if shown, is never a defense or excuse for a crime”); State v Betts, 214 Kan 271; 519 P2d 655 (1974) (the victim’s contributory negligence was not a defense to drunk driving vehicular manslaughter); Wilson v State, 74 Md App 204; 536 A2d 1192 (1988) (the decedent’s intoxication was not a defense to vehicular manslaughter); State v Crace, 289 NW2d 54 (Minn, 1979) (the victim’s negligence was no defense in manslaughter hunting prosecution); State v Kliegel, 674 SW2d 64 (Mo App, 1984) (the victim’s negligence was no defense to vehicular manslaughter); State v Rotella, 196 Neb 741; 246 NW2d 74 (1976) (the victim’s negligence was no defense to vehicular homicide); State v Phelps, 242 NC 540; 89 SE2d 132 (1955) (the victim’s negligence was no defense to vehicular homicide); Williams v State, 554 P2d 842 (Okla Crim App, 1976) (the victim’s contributory negligence was not a defense to negligent homicide with a vehicle); Commonwealth v Long, 425 Pa Super 170; 624 A2d 200 (1993) (the victim’s intoxication was not a defense to homicide); State v Dionne, 442 A2d 876 (RI, 1982) (unless it amounts to an independent intervening cause, the victim’s conduct is •irrelevant).
Even the Pennsylvania instruction quoted by the dissent states that a victim’s negligence is not a defense unless it plays such an important role " 'that the defendant’s conduct does not amount- to a direct and substantial factor in bringing about the death.’ ” Post at 125.
See n 6.
It would appear that the expansion of civil liability has not altered even the rules of tort causation. Rather, the expansion has been focused primarily on expanding duty (adding duties to warn and duties of supervision) and abolishing privity requirements. To the extent that the liability revolution has touched causation, it has involved what expert testimony is admissible to satisfy the static rules of proximate cause.
See, e.g., LaFave & Scott, Criminal Law (2d ed), § 3.12(h), p 297: "It is submitted that the true reason for the holding in these two cases is the court’s feeling, not clearly expressed in the two cases, that A should not, in all justice, be held for the death of b who was an equally willing and foolhardy participant in the bad conduct which caused his death.” Needless to mention, the victims in the present cases were not willing coparticipants.
For example, in People v Kibbe, 35 NY2d 407, 410; 362 NYS2d 848; 321 NE2d 773 (1974), cited by the dissent, the court affirmed the defendants’ convictions for murder where they left the "thoroughly intoxicated” victim at the side of the road without his eyeglasses and where he was later hit by a truck. Despite the fact that both the victim and the truck driver might have been considered negligent, the court did not disturb the jury’s determination that the defendants had "cause[d] the death of another . . . .” Id. at 413.
Given that the instructions in Tims were sufficient to protect the defendant’s rights, the dissent’s implicit assertion that the test for harmlessness of an unpreserved nonconstitutional error is whether the error was harmless "beyond a reasonable doubt,” post at 128, is erroneous. See People v Grant, 445 Mich 535; 520 NW2d 123 (1994).
For example, Mr. Tims’ lawyer argued the following during his closing:
[M]y client’s conduct in operating his motor vehicle had nothing at all to do with the cause, of the accident. The Court is going to charge you that my client’s conduct, if he is to be guilty of anything, has to be a substantial cause of the accident. My client, as we said at the beginning of the trial, he veered his vehicle over into the fourth lane to avoid hitting whatever was in that highway to cause him to veer. He undertook to avoid that accident. The decedent ran into the roadway in front of two vehicles. There came a time when he'was in a zone of safety in the double yellow line and he moved from that zone of safety. And Mr. Fredericks told you, if he had not moved he would not have been hit. His judgment was impaired. He used bad judgment running out into the road and he used bad judgment leaving that zone of safety.
He argued the following:
Another significant part of the instruction is this. The fact that an accident occurred is not in itself any evidence of negligence. The fact that an accident occurred is not in itself any evidence of negligence. Whatever is unavoidable by the exercise of due and reasonable care is not a crime. Whatever is unavoidable by the exercise of due and reasonable care is not a crime. Any crime. My client was confronted with an unavoidable accident. A young man ran out in front of his vehicle and he did what he could do to avoid that. It was unavoidable.
In other words, the jury was given an instruction opposite the one found erroneous in Commonwealth v Molinaro, 429 Pa Super 29; 631 A2d 1040 (1993), a case relied on by the dissent. See post at 124-125.
It is obvious why the defendant does not challenge the sufficiency of the evidence to support this conclusion. The defendant could have avoided the collision by not driving ninety miles an hour on a road with a posted speed limit of forty-five. The death of a pedestrian is a natural and probable consequence of this type of negligence. | [
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Boyle, J.
"Cause” for excusing procedural default is established by proving ineffective assistance of appellate counsel, pursuant to the standard set forth in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984), or by showing that some external factor prevented counsel from previously raising the issue. MCR 6.508 protects unremedied manifest injustice, preserves professional independence, conserves judicial resources, and enhances the finality of judgments.
Six justices agree that in postconviction proceedings under MCR 6.508(DX3)(a), "good cause for failing to raise issues [of ineffective assistance of counsel] on the first appeal” is not defined as failure to comply with standard 9 of the Minimum Standards for Indigent Criminal Appellate Defense Services. The Minimum Standards require appellate counsel to raise all claims of "arguable legal merit,” and a failure to raise an arguable claim does not establish the proper test for assessing whether a defendant has established "cause” excusing a procedural default in postconviction proceedings. The definition proposed is inconsistent with the purpose and language of the Rules of Criminal Procedure, with federal authority defining ineffective assistance of trial and appellate counsel as cause, and with our holding in People v Pickens, 446 Mich 298; 521 NW2d 797 (1994).
However, we disagree with Justice Cavanagh that "federal habeas corpus jurisprudence should play only a limited role in defining the standards imposed by MCR 6.508.” Post at 402. As Justice Cavanagh notes, federal habeas corpus review and MCR 6.508 share the paramount goal of promoting finality of judgments. Post at 404. Moreover, in both the federal and state systems, the constitution guarantees only a fair trial, not a perfect one. Murray v Carrier, 477 US 478; 106 S Ct 2639; 91 L Ed 2d 397 (1986); People v Bahoda, 448 Mich 261, 292-293, n 64; 531 NW2d 659 (1995). While it is true that the state can create its own procedural rules, we presumably chose to model MCR 6.508 after the federal habeas corpus statute because it serves important state interests. As the Supreme Court has observed, the exhaustion doctrine, promotes the legitimate interest of this state in enhancing the accuracy, efficiency, and reliability of our own criminal process by assessing and resolving appellate issues shortly after trial. Murray v Carrier, supra.
We also believe that Justice Cavanagh has failed to advance a persuasive reason why the habeas corpus standard articulated in Gray v Greer, 800 F2d 644 (CA 7, 1985), not passed upon by the Court of Appeals, should be adopted here. As the Court now assumes for itself the role of adding judicial gloss to the terms."significant and obvious,” the approach marks at least a partial repudiation of the limiting purpose of MCR 6.508. The burdens on trial courts passing on postconviction claims will be clearly expanded to the extent of. demonstrating compliance with Gray and, in fact, may be further expanded. The observation that the strategic decisions of counsel will be respected "if such discretion was actually exercised,” invites the argument that a Ginther hearing with appellate counsel must be held to determine that question. Post at 405.
The Rules of Criminal Procedure "are to be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.” MCR 6.002. The specific purpose for creating the postconviction procedure was to provide finality of judgments affirmed after one full and fair appeal and to end repetitious motions for new trials. MCR 6.508(D) is identical to the federal standards for habeas corpus relief under 28 USC 2255. Postconviction relief is provided for the extraordinary case in which a conviction constitutes a miscarriage of justice.
Requiring appellate lawyers to function at a level of objectively reasonable performance encourages lawyers to accept assignments and to diligently serve their clients, as well as promoting the goal of finality in judgments. Where a procedural default is the result of ineffective assistance of counsel, the Sixth Amendment mandates that the state bear the risk of the constitutionally deficient performance. However, where the state has afforded a full and fair opportunity to reliably determine guilt and an appeal of right, assisted by constitutionally adequate counsel at public ex pense, all institutional and public interests support the conclusion that proceedings should come to an end unless the defendant’s conviction constituted a miscarriage of justice.
When ineffective assistance of counsel, based on a failure to raise viable issues, is the justification for excusing procedural default, the movant must establish ineffective assistance of counsel pursuant to the standard set forth in Strickland v Washington, supra, or that "some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v Carrier, supra at 488. MCR 6.508 is based on federal precedent and Michigan’s standard for ineffective assistance of trial counsel is the same as the federal standard. People v Pickens, supra. "Attorney error short of ineffective assistance of counsel does not constitute cause for a procedural default even when that default occurs on appeal rather than at trial.” Murray at 492.
Defining ineffective assistance of appellate counsel as the failure to raise any arguable claim would impair the independence of the profession. And because failure to raise all colorable claims will expose appellate lawyers to malpractice suits and grievances, the approach would inevitably result in flooding the appellate courts with non-meritorious claims on direct appeal. Moreover, because in hindsight, the number of claims of arguable legal merit is virtually limitless, it is predictable that lawyers either will decline representation that will expose them to grievances and civil sanctions, or will suggest that funding units should underwrite the cost of malpractice insurance.
The ultimate effect would profoundly destabilize the finality of judgments beyond what occurred under the previous procedure, and exponentially increase the burdens on appellate counsel, the Court of Appeals, and trial courts presiding in collateral matters. Such an approach is neither commanded by the constitution nor justified by sound public policy.
i
The commentary to MCR 6.508 states that the "cause and prejudice” standard is based on the United States Supreme Court decisions in Wainwright v Sykes, 433 US 72; 97 S Ct 2497; 53 L Ed 2d 594 (1977), and United States v Frady, 456 US 152; 102 S Ct 1584; 71 L Ed 2d 816 (1982). In Wainwright, the United States Supreme Court held that the "[respondent's failure to make timely objection under the Florida contemporaneous-objection rule to the admission of his inculpatory statements, absent a showing of cause for the noncompliance and some showing of actual prejudice, bars federal habeas corpus review of his Miranda[ ] claim.” Id. at 72 (reporter’s syllabus).
While Wainwright adopted the cause and prejudice standard, it left "open for resolution in future decisions the precise definition . . . .” Id. at 87. Similarly, in Frady, supra, the Court applied the cause and prejudice standard but found "it unnecessary to determine whether Frady ha[d] shown cause” and "refrained from giving 'precise content’ to the term 'prejudice’ . . . .” Frady at 168, citing Wainwright, supra at 91. Thus, while laying the groundwork for the cause and prejudice standard, Wainwright .and Frady offered limited guidance regarding the proper definition of either term.
However, in Strickland, the United States Supreme Court clearly held that to receive collateral relief on the basis of ineffective assistance of trial counsel, the defendant must meet a two-pronged test of both cause and prejudice. In addressing the "cause” prong of the test, Strickland held that the defendant must show that counsel "made errors so serious that counsel was not functioning as the 'counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. In evaluating whether counsel was ineffective, "(jjudicial scrutiny of counsel’s performance must be highly deferential,” and the court should restrain from second-guessing trial strategy. Id. at 689. "There are countless ways to provide effective assistance,” and "[ejven the best criminal defense attorneys would not defend a particular client in the same way.” Id. Thus, with regard to defaults that occur at trial, error or inadvertence is not cause for procedural default in postconviction proceedings. Murray, supra at 487.
Strickland dealt with allegations of ineffective assistance of trial counsel as cause (and prejudice) for procedural defaults in collateral proceedings. In Murray, the Supreme Court also definitively held that a failure to assert a claim on appeal whether from "ignorance or inadvertence rather than from a deliberate decision,” does not constitute cause for purposes of postconviction relief. Id. at 487. "Attorney error short of ineffective assistance of counsel does not constitute cause for a procedural default even when that default occurs on appeal rather than at trial.” Id. at 492. In Murray, the Supreme Court dismissed the respondent’s habeas corpus petition because the respondent failed to show cause for not raising his ineffective assistance claim on direct appeal. In reaching its decision, the Court squarely addressed the standard for "cause” and, applying Strickland, held that "cause” for appellate default could be established only by proving ineffective assistance of counsel pursuant to Strickland, or by showing that some factor external to the defense precluded counsel from previously raising the issue. Id.
Where trial or appellate counsel’s performance is constitutionally defective, procedural defaults will not bar a remedy for manifest injustice. However, the vestigial definition of "cause” contended for would transform postconviction proceedings into the "main event” of the criminal justice system, with significant cost to the entire system and to the public interest. If a defendant received a fair trial, was represented at trial and on appeal by a constitutionally adequate lawyer, no legitimate interest is served in excusing procedural default. .
n
The appellant contends that standard 9 of the Minimum Standards is the proper test for whether the defendant has shown "cause.’.’ Post at 412-413. Standard 9 requires an appellate attorney to assert every claim of "arguable legal merit.” Thus, an appellate attorney’s failure to raise an issue on direct appeal that would not have succeeded had it been raised, would excuse a procedural default under MCR 6.508(D). The Minimum Standards dictate only whether an attorney who is listed on the roster of attorneys at the Appellate Assigned Counsel Administrator’s office is eligible for assignments. The standards are simply the vehicle adopted by this Court to assure a standard of performance by certain attorneys who seek to represent clients at state expense. They do not establish the definition of "cause” in collateral relief. Unlike the Minimum Standards, "the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation .... The purpose is simply to ensure that criminal defendants receive a fair trial.” Strickland, supra at 689.
The commentary to standard 9 states that it is based on this Court’s opinion in People v Garcia, 398 Mich 250; 247 NW2d 547 (1976). Just last term, however, we held that "the Michigan Constitution does not afford greater protection than federal precedent with regard to a defendant’s right to counsel when it involves a claim of ineffective assistance of counsel.” People v Pickens, supra at 302. In reaching our decision we stated, "Garcia, therefore, does not stand for the proposition that the Michigan Constitution was intended to grant stronger protection than federal authority with regard to the standards applied to the issue of ineffective assistance of counsel.” Id. at 312-313. Thus, contrary to the understanding of the drafters of standard 9, our holding in Garcia does not suggest a departure from federal precedent, but rather embodies the federal standard.
Defining "cause” as any deviation from compliance with an exact set of standards was considered and rejected in the context of trial counsel performance in Strickland. The Court refused to adopt a "particular set of detailed rules for counsel’s conduct,” finding that no specific set of standards "can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.” Strickland, supra at 688-689.
Likewise, requiring appellate counsel to raise every arguably meritorious issue would undermine the strategic and discretionary decisions that are the essence of skillful lawyering. A fair trial defended by constitutionally competent trial counsel and reviewed with the representation of constitutionally competent appellate counsel is a final judgment, subject to reversal only in the extraordinary circumstances set forth in the rule.
Inherent in the definition of "arguable legal merit” is the notion that attorneys will disagree about what issues are "arguable.” By adopting a standard of arguable merit, the Minimum Standards encourage lawyers representing indigent clients on appeal to err on the side of presenting all colorable claims for relief. Although the standard undoubtedly imposes a tax on the resources of the Court of Appeals, it is arguable that the burden is justified by the institutional need to assure that appellate attorneys paid by the taxpayers of Michigan do not err on the side of underrepresentation. It is one thing, however, to encourage lawyers to raise claims on direct appeal that conceivably might succeed, and quite another to say that failure to raise all such claims is constitutionally defective. If failure to raise a claim of "arguable legal merit” constituted "cause” in collateral proceedings, the standard would constitute a frontal attack on the finality of judgments that the Rules of Criminal Procedure were adopted to promote without any benefit to the notion that collateral proceedings are intended as extraordinary protection against unreliable fact finding and unjust convictions. The standard does, not consider the presumption of competence inherent in the wide range of reasonable appellate assistance, nor does it address the fact that for purposes of appeal, as at trial, the constitution does not guarantee a perfect process, but rather one that is not constitutionally defective.
iii
Before October 1, 1989, the procedure for collateral review of criminal convictions in Michigan did not make any provision for finality of judgments. As a consequence, defendants could, and did, repeatedly seek relief without limitation. To create a uniform system of procedure, Michigan Court Rules 6.501 et seq. were enacted. The rules present a carefully balanced scheme that liberally permits ■the assertion of claims on direct appeal, whether timely or not, while at the same time introducing a concept of finality to discourage repeated trips up and down the appellate ladder.
In explaining the proper standard for collateral postconviction relief, the drafters of proposed rule 7.404, later adopted as MCR 6.508, stated:
The collateral postconviction remedy provided by subchapter 7.400 should be regarded as extraordinary. Lacking any statute of limitations, this remedy has the potential for seriously undermin ing the state’s important interest in the finality of criminal judgments. Such a cost is appropriate only to prevent manifest injustice. Stated differently, collateral postconviction remedies should have a narrower role than direct appeal; errors that may warrant appellate reversal of a conviction may not warrant postconviction relief. [Proposed Rules of Criminal Procedure, 428A Mich 50 (1987).]
Specifically addressing ineffective assistance of appellate counsel claims, the drafters stated that "ineffective assistance of counsel, as opposed to mere attorney oversight, establishes cause for failure to raise the issue.” Id. at 53.
The rules are designed to encourage raising legal issues on initial appeal rather than in post-conviction review. The United States Supreme Court has observed:
[A rule which is designed to afford] the opportunity to resolve the issue shortly after trial, while evidence is still available both to assess the defendant’s claim and to retry the defendant effectively if he prevails in his appeal . . . promotes not only the accuracy and efficiency, of judicial decisions, but also the finality of those decisions .... [Reed v Ross, 468 US 1, 10; 104 S Ct 2901; 82 L Ed 2d 1 (1984).]
MCR 6.508 was adopted to insure that the finality of criminal judgments was not diminished. Mandating that all appellate attorneys must raise all claims of arguable legal merit will tax judicial resources on direct and postconviction attack, and reintroduce a multiplicity of postconviction proceedings. Neither the guarantee of a fair trial nor a direct appeal entitles a defendant to as many attacks on a final conviction as ingenuity may devise.
IV
The facts of this case present a paradigm of the situation MCR 6.508 seeks to remedy. It has been eight years since defendant, assisted by a different lawyer than trial counsel, sought relief through direct appeal. The appeal followed a three-day jury trial at which defendant was convicted of felony murder. On direct appeal, appellate counsel raised two issues: that the jury instructions were unclear and overly broad, and that it was error for the prosecutor to inform the jury that defendant’s alleged codefendant had' already been tried.
Defendant here claims that his appellate counsel was ineffective for not arguing that his trial counsel was ineffective in failing to object to three statements made in the prosecutor’s closing argument. To excuse this double procedural default defendant must "show that [trial] counsel’s performance fell below an objective standard of reasonableness, and that the representation so prejudiced the defendant as to deprive him of a fair trial.” Pickens, supra at 303. Defendant must also show that appellate counsel’s performance fell below an objective standard of reasonableness and was constitutionally deficient.
While not insurmountable, it is clear that this burden is highly demanding. As Justice Brennan explained in Kimmelman v Morrison, 477 US 365; 106 S Ct 2574; 91 L Ed 2d 305 (1986):
In order to establish ineffective representation, the defendant must prove both incompetence and prejudice. [Strickland, supra] at 688. There is a strong presumption that counsel’s performance falls within the "wide range of [reasonable] professional assistance,” id. at 689; the defendant bears the burden of proving that counsel’s representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. Id. at 688-689. The reasonableness of counsel’s performance is to be evaluated from counsel’s perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential. Id. at 689. [Id. at 381.]
Since "[t]here are countless ways to provide effective assistance in any given case,” id. at 689, unless consideration is given to counsel’s overall performance, before and at trial, it will be "all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Ibid. [Id. at 386.]
A
Dealing with the defaults in reverse order, we first observe that under the deferential standard of review, appellate counsel’s decision to winnow out weaker arguments and focus on those more likely to prevail is not evidence of ineffective assistance. Jones v Barnes, 463 US 745, 752; 103 S Ct 3308; 77 L Ed 2d 987 (1983). Nor is the failure to assert all arguable claims sufficient to overcome the presumption that counsel functioned as a reasonable appellate attorney in selecting the issues presented. The question is whether a reasonable appellate attorney could conclude that the comments made by the prosecutor were not worthy of mention on appeal.
Since, as discussed next, two of the three comments were not improper statements of law and all were followed by proper instruction, it is evident that the improper comments argument was without merit.
B
The claimed ineffective performance of trial counsel, is based on three instances of alleged prosecutorial misconduct where trial counsel’s failure to object subjected each alleged error to the claim of forfeiture on direct appeal, see People v Duncan, 402 Mich 1; 260 NW2d 58 (1977). The question is whether trial counsel’s failure to object to the following three points during a three-day trial constituted constitutionally deficient performance: (1) the prosecutor’s alleged implication that first-degree murder is satisfied if the murder occurred during the course of the robbery without fully explaining that there must be malice sufficient for murder itself and a separate intent to commit the underlying felony, (2) the prosecutor’s explanation that "not caring” or "careless disregard” would satisfy the specific intent required for assault with intent to murder, and (3) the prosecutor’s use of "we know” in referring to the evidence produced at trial, allegedly implying that he knew something more than produced at trial, that the evidence was abundantly clear, or simply that the jury should suspend its fact-finding powers in deference to the prosecutor’s judgment. All instances of alleged defective performance occurred during closing argument. It is not disputed that all were followed by correct jury instructions.
Although we find no "cause,” we analyze each of the claims separately to provide guidance to the bench and bar.
Defendant claims trial counsel erred in failing to object to the prosecutor’s argument regarding felony murder.
Review of the relevant statements in the record indicate that the prosecutor did not misstate the law:
Whether the persons had the gun in their right hand or their left hand, whether there were fifteen bullets fired or twenty-two bullets fired may not matter. If you believed that Lee Griffin died during the robbery or an attempted robbery, that Mr. Reed shot the fatal shot or was responsible for it being fired, it would still be murder in the first degree, felony murder. If he shot Mr. Moore intending to kill, intending what happened, he’s guilty of assault with intent to murder. If he was just holding and pulled out his weapon on the participants at this bar, he’s guilty of assault with intent to rob being armed. If he’s holding a gun in his hand, he’s guilty of possessing a firearm during the commission of a felony.
For murder in the first degree, the Judge is going to define that there has to be a loss of life. Mr. Griffin lost his life. It had to be caused by an act of the Defendant. Being shot was the act that caused his death. And there had to be a mental state, a mental state of either wanting to kill or disregarding the consequences of the activity, not caring what happened, in this case, shooting a person, to the extent of shooting at the vital organs, that kind of not caring — I’m going to help my friend, I’m going to shoot you.
You don’t have to intend "I’m going to kill him.” All you have to do is, "I’m going to shoot him. I don’t care if this bullet kills or not.”
And it has to be done during an attempted robbery. This certainly was an attempted robbery. Even if Mr. Sharp may have been the one more intimately involved in the whole event — he’s taken care of — look at Mr. Reed’s responsibility, and his shooting Mr. Griffin with disregard for what’s going to happen, causing the fatal wound while a robbery is going down is murder in the first degree.
And the Court has to instruct you on murder in the second degree. That’s just a killing with a wrongful intent, a wrongful state of mind, whether part of a robbery or not. That’s murder in the second degree.
But the killing when you’re trying to advance a robbery is first, murder in the first degree. Not that it’s planned or premeditated or cold-blooded, but that it’s done during the robbery. That’s murder in the first degree. And for that we charge Mr. Reed for being involved in that act of murder in the first degree.
And we know that he also shot Mr. Moore twice, in the chest and in the arm. First in the arm would make sense. If he’s holding the gun the way he said, he would shoot him in the arm which has the gun in it, which caused him to let go of the arm [sic].
Then he shot him in the chest, for which we charge him with assault with intent to murder, intent to kill; the Defendant didn’t care what happened when he shot him. He shot him in the chest, which is a pretty serious place. He’s lucky. He was shot twice in the trunk and survived. Mr. Griffin was shot once in the trunk and he died.
I think the fact that one man died shows that the intent was to kill, to not care, not caring what the results would be. And again, Mr. Moore said that Mr. Reed was the one who was shooting at him. "I looked up and I saw him shooting at me. The second and third wounds that I received came from Mr. Reed.”
The prosecutor argued that shooting at Mr. Griffin’s vital organs satisfied the malice required for second-degree murder. He did not misstate the law or lessen the burden of proof regarding the malice requirement for murder. See People v Aaron, 409 Mich 672; 299 NW2d 304 (1980).
The prosecution concedes that the trial prosecutor misstated the intent requirement of assault with intent to murder charge. He stated:
Then he shot him in the chest, for which we charge him with assault with intent to murder, intent to kill; the Defendant didn’t care what happened when he shot him. He shot him in the chest, which is a pretty serious place. He’s lucky. He was shot twice in the trunk and survived. Mr. Griffin was shot once in the trunk and he died.
We are not bound to accept such a concession, and it may well be that the prosecutor was correctly arguing that an intention to kill may be inferred from circumstances. Nonetheless, assuming arguendo the correctness of the concession, an intent to kill is necessary to convict of assault with intent to murder. People v Taylor, 422 Mich 554, 567-568; 375 NW2d 1 (1985). We find that counsel was not ineffective in failing to object because, at the time of trial, Taylor was not yet decided.
Counsel is not ineffective for taking a position that, while objectively reasonable at the time, is later ruled incorrect. McMann v Richardson, 397 US 759, 770-771; 90 S Ct 1441; 25 L Ed 2d 763 (1970). The question is whether the position when taken was objectively reasonable pursuant to the standard set forth in Strickland, supra. We aré mindful of the Strickland Court’s warning that "it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful [or later deemed incorrect], to conclude that a particular act or omission of counsel was unreasonable.” Id. at 689. Thus, trial counsel was not ineffective in failing to object to the prosecutor’s argument.
The final claim is that trial counsel erred in failing to object to the prosecutor’s use of the term "we know” in summing up the evidence in his closing argument. This claim is based on the theory that trial counsel should have objected during the prosecutor’s closing argument because the prosecutor was impermissibly vouching for- the credibility of the witnesses. We believe a claim of this type is precisely the type of trial decision the United States Supreme Court cautioned against second guessing in postconviction collateral proceedings.
First, as a matter of law, the argument did not constitute improper vouching. It is not here disputed "that the prosecutor may not vouch for the character of a witness or place the prestige of his office behind them.” People v Bairefoot, 117 Mich App 225, 229; 323 NW2d 302 (1982); see also People v Bahoda, supra; People v Cowell, 44 Mich App 623; 205 NW2d 600 (1973). The record must be read as a whole, however, and the allegedly impermissible statements judged in the context in which they are made. People v Duncan, supra at 15-16. As noted by the Court of Appeals in Cowell, supra:
A statement cannot be taken out of context. Just as jury instructions must be read as a whole, so must the remarks of the prosecutor. The prosecutor’s remarks must be evaluated in light of the relationship or. lack of relationship they bear to the evidence admitted at trial. [Id. at 627.]
The propriety of the prosecutor’s comments "does not turn on whether or not any magic words are used.” Id. at 628. The crucial inquiry is not whether the prosecutor said "We know” or "I know” or "I believe,” but rather whether the prosecutor was attempting to vouch for the defendant’s guilt.
Read as a whole, and in the context of this case, the prosecutor’s use of "we know” does not show an attempt to place the credibility of his office behind the case or a suggestion that he possessed extrajudicial information on which defendant should be convicted. Rather, the prosecutor was-asserting that "we know,” on the basis of the evidence presented at trial and inferences drawn from that evidence, that the propositions advanced had been established. _
You should disregard anything said by an attorney which is not supported by the evidence or by your own general knowledge and experience.
Second, trial strategy supports counsel’s decision not to object. Objecting would have' invited an overruling by the trial judge and risked jury disapproval. At best, trial counsel might have obtained a direction to the prosecutor to rephrase his summary, or a charge that the lawyer’s arguments were not evidence. Trial counsel had to balance this meager benefit against the potential that the jury would believe defense counsel did not want them to hear the prosecutor’s analysis of the evidence. Trial counsel’s failure to object was a quintessential example of trial strategy. None of the omissions alleged, standing alone or together, falls below an objective standard of reasonable performance.
c
Finally, we observe that if the first prong of Strickland is satisfied because a reasonable attorney would have objected, in this collateral proceeding, the defendant could not fulfill the prejudice prong. See also People v Pickens, supra. The Strickland formulation of ineffective assistance includes both a performance component and a prejudice component. Both prongs of the test must be fulfilled and
a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffective ness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. [Id. at 697.]
To establish prejudice, "a criminal defendant . . . must show 'that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’ Lockhart v Fretwell, 506 US 364, 369; 113 S Ct 838; 122 L Ed 2d 180 (1993), quoting Strickland, supra at 687.
Defendant in this case received a fair trial and there are no circumstances that undermine confidence in the reliability of the factfinder’s determination of guilt. Given the well-established proposition that jurors are presumed to follow the law, an alleged misstatement of the law by the prosecutor is presumptively not harmful, since the trial judge instructed the jury properly.
Moreover, a witness who was himself shot twice by Mr. Reed, testified that he saw defendant fatally shoot the victim during the attempted robbery, and three witnesses identified defendant as being in the bar at the time of the shooting. Another witness for the people testified that he drove defendant to the bar on the day in question, that defendant was armed with a .38 caliber revolver, and that when defendant returned to the car, either the defendant or Sharp said "I had to shoot the dude.” A man working on a freezer identified defendant as the man with a revolver in his hand who ordered him out of the bathroom after the shots were fired. There was no prejudice or manifest injustice so that the good cause requirement should be waived._
V
We agree with the Court of Appeals that appellate counsel did not fall below the standard of Strickland by failing to claim that trial counsel was ineffective. Trial counsel’s performance was constitutionally adequate, and defendant’s counsel on direct appeal did not render ineffective assistance by failing to raise meritless claims.
Because defendant has failed to demonstrate "cause” as required by MCR 6.508(D)(3), we would affirm the decision of the Court of Appeals and reinstate defendant’s convictions and sentences.
Brickley, C.J., and Riley, J., concurred with Boyle, J.
MCR 6.508(D) recognizes that the most fundamental injustice is the conviction of an innocent person and specifically allows the court to waive "the 'good cause’ requirement of subrule (D)(3)(a) if it concludes that there is a significant possibility that the defendant is innocent of the crime.” If the petitioner in fact demonstrates that there is a significant possibility that he is innocent, the court may consider his claim without requiring the petitioner to demonstrate good cause for his failure to raise the issue in an earlier proceeding.
See n 2, post at 406.
Id. at 408.
Adopted by this Court in Administrative Order No. 1981-7.
In the debate regarding the appropriate scope of federal habeas corpus review, one cost identified by those who support a less expansive view is the inconsistency of plenary review of state decisions with the " 'constitutional balance upon which the doctrine of federalism is founded,’ ” 3 LaFave & Israel, Criminal Procedure, § 27.2, p 302, quoting Schneckloth v Bustamonte, 412 US 218; 93 S Ct 2041; 36 L Ed 2d 854 (1973). Another cost is the consumption of scarce judicial resources. Id.
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). Justice O’Connor’s words regarding the costs of such hearings are equally applicable here.
In order to determine whether there was cause for a procedural default, federal habeas courts would routinely be required to hold evidentiary hearings to determine what prompted [appellate] counsel’s failure to raise the claim in question. While the federal habeas courts would no doubt strive to minimize the burdens to all concerned through the use of affidavits or other simplifying procedures, we are not prepared to assume that these costs would be negligible, particularly since, as we observed in Strickland v Washington, 466 US 668, 690 (1984), "[intensive scrutiny of counsel . . . could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.” Nor will it always be easy to clarify counsel’s behavior in accordance with the deceptively simple categories propounded by the Court of Appeals. Does counsel act out of "ignorance,” for example, by failing to raise a claim for tactical reasons after mistakenly assessing its strength on the basis, of an incomplete acquaintance with the relevant precedent? The uncertain dimensions of any exception for "inadvertence” or "ignorance” furnish an additional reason for rejecting it. [Murray, supra at 487-488.]
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
External factors include "showing that the factual or legal basis for a claim was not reasonably available to counsel, see Reed v Ross, 468 US [1, 16; 104 S Ct 2901; 82 L Ed 2d 1 (1984)], or that 'some interference by officials,’ Brown v Allen, 344 US 443, 486 [73 S Ct 397; 97 L Ed 469] (1953), made compliance impracticable . . . Murray, supra at 488.
If reasonable legal minds can differ about whether a claim has “arguable legal merit,” the standard is reduced to one in which mere negligence or simple oversight is sufficient to fulfill the cause prong. The Supreme Court has directly rejected such a standard and has stated that "the defendant bears the burden of proving that counsel’s representation was unreasonable” and that "[ojnly those habeas petitioners who can prove under Strickland that they have been denied a fair trial by the gross incompetence of their attorneys” will be able to obtain relief. Kimmelman v Morrison, 477 US 365, 381, 382; 106 S Ct 2574; 91 L Ed 2d 305 (1986) (emphasis added).
An expansive definition of cause for failure to raise issues on appeal may actually have the effect of discouraging diligent performance on direct appeal,
MCR 6.425(F)(1)(b).
The Supreme Court has recently observed that the fundamental miscarriage of justice exception seeks "to balance the societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case.” Schlup v Delo, 513 US —; 115 S Ct 851, 865; 130 L Ed 2d 808 (1995).
The contemporaneous objection rule is supported by the notion that it is the trial that is the main event and that the person best qualified to judge error, which denies fundamental fairness, is normally defendant’s own trial lawyer. Murray, supra at 506.
While we analyze each claim of error separately, and recognize that "the right to effective assistance of counsel . . . may in a particular case be violated by even an isolated error ... if that error is sufficiently egregious and prejudicial,” Murray, supra at 496, We emphasize again that each error must be assessed in relation to "counsel’s overall performance, before and at trial.” Kimmelman, supra at 386. It is only when a defendant can demonstrate that a single egregious error, or combination of minor errors, caused counsel’s overall performance to fall below the level guaranteed by the Sixth Amendment that defendant has fulfilled the cause prong of the inquiry.
It is undisputed that the trial judge gave an appropriate instruction regarding felony murder. The prosecutor also notes that the jury asked for clarification of the difference between felony murder and second-degree murder and the trial judge reread his previous instruction. This strengthens the fact that the jury was not confused and that the prosecutor’s comments did not prejudice defendant.
Defendant does not contend that counsel should have foreseen the subsequent clarification of the law in Taylor. Smith v Murray, 477 US 527; 106 S Ct 2661; 91 L Ed 2d 434 (1986).
The trial judge instructed the jury, in accordance with CJI 17:2:01 and 17:2:02 (now CJI2d 17.3 and 17.4), as follows:
Now with regard to count two, the Defendant is charged with assault with intent to murder Johnny Ray Moore. Any person who shall assault another with the intent to commit the crime of murder is guilty of this crime. The Defendant pleads not guilty to this charge.
To establish this charge, the Prosecution must prove each of the following elements beyond a reasonable doubt:
First, that the Defendant tried to physically injure another person.
Second, that he had the present ability to cause the injuries or at least believed that he had the present ability.
Third, that at the time he committed the assault, the Defendant intended to kill the complainant under circumstances that did not justify, excuse or mitigate the crime.
Now, this also requires a specific intent, and if you find that the Defendant for any reason whatsoever did not consciously and knowingly act with the intent to kill Johnny Ray Moore, then the crime cannot have been committed, and you must find the Defendant not guilty of the crime of assault with intent to commit the crime of murder. If from all the evidence you have a reasonable doubt as to whether or not the Defendant knowingly and consciously acted with the intent to kill, then you must find the Defendant not guilty of the crime of assault with intent to commit the crime of murder.
The prosecutor made the following comments:
What we do know is that two men went to the bar. I think we know that clearly. Two men went to the bar for the purpose of holding it up, Albert Reed and Mr. Keith Sharp.
All we know is that he [Willie Burns] took the two men to the bar and that both men were armed with weapons; that Mr. Albert Reed had a .38 caliber in his belt or what looked like a .38 caliber, and Mr. Sharp had a 9 millimeter that he was playing with. So both men went to the bar armed.
He [Mr. Sharp] pulls out a gun and then a holdup is announced. We’re not sure who says it, but a holdup is announced.
But we know at some point in time Mr. Reed is seen at the door holding a gun. Mr. Sharp is at the front of the bar holding the gun. So both men are holding a gun, and they’re clearly part of the holdup attempt.
And the photograph and the sketch shows there’s some slugs in the back room. So we know Keith Sharp goes in the back of the bar, leaving twenty people in the bar. We know there must be somebody else involved in the holdup. There’s no way he could be pulling off this holdup by himself, announce a holdup and then leave the room for a minute without backup from Albert Reed, who’s standing at the door.
And according to the medical examiner’s testimony, the fatal wound that Mr. Griffin suffered in the chest was slightly downward, indicating the person shooting would have had to have been standing upward, somewhere above, to shoot in the chest, for the bullet to go a slightly downward angle. It couldn’t have been Mr. Sharp on the floor because Mr. Moore covered him as he was fighting with him. Besides that, we know that Mr. Griffin was eventually on the other side of the pool table, which would have blocked his view. So he couldn’t even see Mr. Griffin on the floor because it’s on the other side of the pool table.
We do know that a .38 was fired, and a .38 was held by Mr. Reed, and a .38 jacket was found next to the pool table.
You have the medical examiner’s testimony as to the angle being downward, and we have the .38 slug or the jacket of a .38 slug found, which could not have come out of Mr. Keith Sharp’s gun. So we know that Mr. Reed fired the fatal shot.
And we know that he also shot Mr. Moore .twice, in the chest and in the arm. First in the arm would make sense. If he’s holding the gun the way he said, he would shoot him in the arm which has the gun in it, which caused him to let go of the arm [sic].
And we certainly know that Mr. Reed was possessing a firearm, a .38. Mr. Willie Burns saw it. Mr. Alvira saw it.
What we do know is that Mr. Reed is the mobile one, the one that was able to walk around. We know that Mr. Griffin is still standing and could be turning in a certain direction, turning to face the man who’s pulling out a gun on his friend and himself.
And we do know that other shots are being fired by Mr. Reed on Mr. Moore.
See also Therrien v Vose, 782 F2d 1, 4 (CA 1, 1986), in which the United States Court of Appeals for the First Circuit, rejecting the petitioner’s habeas petition, held that the prosecutor’s use of "we know he shot them” was not prosecutorial misconduct because the prosecutor had previously instructed the jury that it was their recollection of the evidence and not his that "counts.”
Moreover, the trial court judge instructed the jury as follows:
You are the sole judges of the facts, and you alone have the solemn duty and obligation to decide this case from the evidence.
Any statements and arguments of the attorneys are not evidence, but are only intended to assist you in understanding the evidence and the theory of each party.
The proper inquiry is not whether "there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, supra at 694. An analysis that focuses "solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.” Lockhart v Fretwell, supra at 369. | [
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Brickley, C.J.
Plaintiff, Local 1064, RWDSU AFL-CIO, employed defendant accounting firm of Ernst & Young. Ernst & Young provided services for the plaintiff union during fiscal years 1984, 1985, and 1986, after which the firm provided no further services for plaintiff.
In July 1988, plaintiff became aware that one of the union’s bookkeepers had not prepared and submitted reports required by the Michigan Em ployment Security Commission for 1984 through 1988. As a result, the mesc assessed an increased contribution rate that cost plaintiff in excess of $21,000.
On October 13, 1989, plaintiff filed this lawsuit, seeking money damages from defendants in an amount equal to what the union was required to pay the mesc. Plaintiff alleges that the defendants failed to perform the duties for which they were hired and paid, including examining all plaintiff’s records, auditing its accounts, and assuring that all payments required by governmental agencies were properly computed and paid.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(7), contending that plaintiff’s claim sounded in malpractice and therefore was barred by the two-year limitation period provided by MCL 600.5805(4); MSA 27A.5805(4), as well as the six-month discovery rule also applicable to malpractice actions, MCL 600.5838(2); MSA 27A.5838(2).
The trial court denied the motion for summary disposition and held that the relevant limitation period was the six-year period provided by MCL 600.5813; MSA 27A.5813. The trial court concluded that the limitation periods contained in § 5805 do not apply because plaintiff seeks damages only for financial loss and not for injury to persons or property. Defendant appealed.
Although the Court of Appeals disagreed with the trial court that § 5805 applies only when there are claims of physical injury, it agreed that summary disposition was improper. Rejecting defendants’ contention that the malpractice limitation period applied, the Court of Appeals held that the applicable period may be found in § 5805(8) (three-year “residual” tort statute), § 5807(8) (six-year breach of contract period), or § 5813 (six-year general statute of limitations). The panel declined to decide which among those three provisions was controlling.
Except as otherwise provided in section 5838a, an action involving a claim based on malpractice may be commenced at any time within the applicable period prescribed in sections 5805 or 5851 to 5856, or within 6 months after the plaintiif discovers or should have discovered the existence of the claim, whichever is later. [MCL 600.5838(2); MSA 27A.5838(2).]
We affirm the decision of the Court of Appeals insofar as it held that § 5805 applies to common-law tort claims even when the alleged damages are solely pecuniary. However, we reverse the decision of the Court of Appeals insofar as it held that an accountant malpractice claim is not governed by the malpractice limitation period provided in § 5805(4).
i
A
Resolution of this appeal initially depends on whether this is a tort action or a breach of contract action. We read the trial court’s opinion as rejecting plaintiff’s contention that this is an action for breach of contract. By concluding that the applicable limitation period was provided by § 5813, the trial court presumably believed that this was not a breach of contract action, otherwise it simply would have concluded that § 5807(8) (breach of contract) provided the controlling limitation period. We find no clear error regarding the trial court’s finding that this is not a breach of contract action.
Accordingly, we hold that the statute of limitations for contract actions, § 5807, does not apply to this claim. The Court of Appeals erred to the extent that it suggested that § 5807(8) might apply.
B
The next question is whether § 5813, rather than § 5805, controls this case. Section 5813 provides the general period of limitation:
All other personal actions shall be commenced within the period of 6 years after the claims accrue and not afterwards unless a different period is stated in the statutes. [MCL 600.5813; MSA 27A.5813.]
Section 5805 is a more specific statute of limitations than § 5813 and therefore controls if applicable to this action. Crane v Reeder, 22 Mich 322, 334 (1871); Huron Twp v City Disposal Systems, Inc, 448 Mich 362, 366; 531 NW2d 153 (1995). It provides in relevant part:
(1) A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the periods of time prescribed by this section.
(4) Except as otherwise provided in this chapter, the' period of limitations is 2 years for an action charging malpractice.
(8) The period of limitations is 3 years after the time of the death or injury for all other actions to recover damages for the death of a person, or for injury to a person or property. [MCL 600.5805; MSA 27A.5805.]
The trial court held that § 5805 does not apply to this cause of action because plaintiff seeks damages only for financial loss and not for physical injury to persons or property. We, like the Court of Appeals, disagree.
For the reasons stated in Nat’l Sand, Inc v Nagel Construction, Inc, 182 Mich App 327, 332-337; 451 NW2d 618 (1990), we conclude that § 5805 prescribes the limitation periods for traditional common-law torts, regardless of whether the damages sought are for pecuniary or physical injury. See also Citizens for Pretrial Justice v Goldfarb, 415 Mich 255; 327 NW2d 910 (1982). We find it particularly persuasive that § 5805 applies to several causes of action that rarely or never involve physical injury. See Nat’l Sand, Inc, supra at 335. While Nat’l Sand was decided after the trial court’s opinion in this case, we believe that it represents the correct analysis concerning the scope of § 5805.
In light of the case law, we agree that § 5805 controls here._
II
Having determined that this action is governed by § 5805, we finally must decide whether the two-year limitation for malpractice actions, § 5805(4), or the three-year period provided by § 5805(8) controls.
In Sam v Balardo, 411 Mich 405; 308 NW2d 142 (1981), this Court considered the scope of § 5805(4). After noting that malpractice was not defined by the Revised Judicature Act, the Court thoroughly considered the legislative history of the statute and, consistent with rules of statutory construction, concluded that "the definition of malpractice and liability therefor are to be determined by resort to the common law.” Sam, supra at 424. We see no compelling basis for retreating from the analytical framework prescribed by Sam; principles of stare decisis favor our adherence to it. See Boyd vWG Wade Shows, 443 Mich 515, 525; 505 NW2d 544 (1993).
In concluding that accountants are not encompassed within the malpractice statute of limitations, the Court of Appeals found it dispositive that there were no reported Michigan cases of accounting malpractice before 1961. The Court of Appeals analysis is based on a peculiar reading of the phrase: "the common law” as used in Sam v Balardo, supra. The phrase "the common law” has been used in different senses. In its most general usage, it means:
[T]hose rules or precepts of law in any country, or that body of its jurisprudence, which is of equal application in all places, as distinguished from local laws and rules. [15A CJS, Common Law, § 1, P 41.]
As distinguished from legislative enactments, the common law refers to:
"[T]he embodiment of principles and rules inspired by natural reason, an innate sense of justice, and the dictates of convenience, and voluntarily adopted by men for their government in social relations. The authority of its rules does not depend on positive legislative enactment, but on general reception and usage, and the tendency of the rules to accomplish the ends of justice.” [Garwols v Bankers Trust Co, 251 Mich 420, 423-424; 232 NW 239 (1930).][ ]
If Michigan case law were our sole guide to the common law, the common law would cease to embody general precepts of universal import that are derived from reason, custom, and usage and be reduced instead to the mere rule of decision in a particular case. We simply do not believe that Sam v Balardo, supra envisioned that the common law would occupy such superficial status in our jurisprudence. Thus, while Michigan case law is certainly relevant to determining whether a particular profession is subject to malpractice under the common law, the traditional nature and origin of the common law make it clear that a consideration of judicial decisions from other jurisdictions is not prohibited here. _
Construing the instant statute by reference to the common law, as it is explained by other state decisions, is not a novel concept. In Kambas v St Joseph’s Mercy Hosp of Detroit, 389 Mich 249; 205 NW2d 431 (1973), the Court considered the statute at issue here and held that nurses were not encompassed within the two-year malpractice period. The Court looked to the common law as explained by the Ohio Supreme Court and concluded that because nurses were not traditionally subject to malpractice liability, they are not encompassed by the two-year statute of limitation. Id. at 255, quoting Richardson v Doe, 176 Ohio St 370; 199 NE2d 878 (1964). Thus, even before Sam, this Court recognized that the decisions of other states may play a role in ascertaining the scope of the statute at issue.
In Dennis v Robbins Funeral Home, 428 Mich 698; 411 NW2d 156 (1987), the Court followed the analytical framework prescribed by Sam and held that funeral directors were not encompassed by the malpractice statute of limitation. There was no suggestion that funeral directors were subject to malpractice liability under the common law as represented by decisions of other states, treatises, hornbooks, or encyclopedias. Indeed, the Court expressly noted:
Since there was no common-law cause of action for funeral director or funeral home malpractice, we find no indication that the Legislature intended to include such action within the meaning of malpractice as it is used in MCL 600.5805(4); MSA 27A.5805(4). [Id. at 702.]
The absence of a common-law cause of action, in conjunction with the absence of any decisions on point from this jurisdiction, justified the Dennis Court’s conclusion that funeral directors were not protected by the two-year malpractice statute of limitation.
To read our prior decisions construing the malpractice statute of limitation as somehow prohibiting courts from looking beyond the Michigan appellate reports when determining whether a particular profession was subject to common-law malpractice is unprecedented, and contrary to the traditional role of "the common law” in shaping our jurisprudence. In the absence of a published opinion in this state, it is entirely appropriate and indeed necessary to look to the common law as represented by other states’ decisions, hornbooks, treatises, and journals to discern the scope of common-law malpractice. To hold otherwise would impose an arbitrary limit on § 5805(4).
When one looks beyond Michigan’s appellate reports, it is clear that accountants have been subjected to common-law malpractice liability with increasing frequency since at least the mid-1900s. See, e.g., Atkins v Crosland, 406 SW2d 263, 264 (Tex Civ App, 1966), rev’d on other grounds 417 SW2d 150 (Tex, 1967); Bancroft v Indemnity Ins Co of North America, 203 F Supp 49 (WD La, 1962), aff’d 309 F2d 959 (CA 5, 1962); Carr v Lipshie, 8 AD2d 330; 187 NYS2d 564 (1961); Cochrane v American Surety Co of New York, 108 So 2d 315 (Fla App, 1959); Duro Sportswear, Inc v Cogen, 131 NYS2d 20 (NY S Ct, 1954); Feldman v Granger, 255 Md 288; 257 A2d 421 (1969); L B Laboratories, Inc v Mitchell, 39 Cal 2d 56, 60-63; 244 P2d 385 (1952); Professional Rodeo Cowboys Ass’n v Wilch, Smith & Brock, 42 Colo App 30; 589 P2d 510 (1978); Ronaldson v Moss Watkins, Inc, 127 So 467, 470 (La App, 1930); Wilmington Country Club v Horwath & Horwath, 46 FRD 65 (ED Pa, 1969); Hawkins, Professional negligence liability of accountants, 12 Vand LR 797 (1959); 1 Am Jur 2d, Accountant, § 15-19, pp 365-368 (discussing common-law liability of accountants). Courts and commentators recognizing liability for the malpractice of an accountant have not created a new cause of action, but merely have applied the common-law principles articulated in malpractice actions generally.
That accounting is a profession traditionally subject to common-law malpractice liability is not a remarkable proposition. In fact, the Legislature has recognized the practice of accounting since 1925, when it enacted a statute to' regulate the work of public accountants. 1925 PA 353. Consequently, we hold that the relevant statute of limitations is MCL 600.5805(4); MSA 27A.5805(4).
Because it is clear that accountants were, and, are subject to common-law malpractice liability, it is unnecessary in this case to conclusively construe the precise scope of MCL 600.5805(4); MSA 27A.5805(4), or to decide whether the malpractice statute of limitations applies to actions against members of all state licensed professions. We so limit our holding.
Affirmed in part and reversed in part.
Riley, Mallett, and Weaver, JJ., concurred with Brickley, C.J.
Relevant to malpractice, § 5805 of the Revised Judicature Act provides:
(1) A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the periods of time prescribed by this section.
(4) Except as otherwise provided in this chapter, the period of limitations is 2 years for an action charging malpractice. [MCL 600.5805; MSA 27A.5805.]
The date of accrual from which the two-year period begins to run is prescribed by RJA, § 5838(1):
Except as otherwise provided in section 5838a, a claim based on the malpractice of a person who is, or holds himself or herself out to be, a member of a state licensed profession accrues at the time that person discontinues serving the plaintiff in a professional or pseudoprofessional capacity as to the matters out of which the claim for malpractice arose, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim.
RJA, § 5838(2) provides the following six-month discovery rule for malpractice actions:
RJA, § 5813 provides:
All other personal actions shall be commenced within the period of 6 years after the claims accrue and not afterwards unless a different period is stated in the statutes. [MCL 600.5813; MSA 27A.5813.]
RJA, § 5805(8) provides:
The period of limitations is 3 years after the time of death or injury for all other actions to recover damages for the death of a person, or for injury to a person or property. [MCL 600.5805(8); MSA 27A.5805(8).]
RJA, § 5807 provides in relevant part:
No person may bring or maintain any action to recover damages or sums due for breach of contract, or to enforce the specific performance of any contract unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section.
(8) The period of limitations is 6 years for all other actions to recover damages or sums due for breach of contract.
204 Mich App 445, 451-452; 516 NW2d 492 (1994).
Id. at 451-452. The panel explained: "[l]t is not necessary that we determine which of those three limitation periods applies because the complaint was brought within three years, the shortest of those periods.”
Id. at 448-449.
Id. at 449-451.
It is well accepted that in ruling on a statute of limitations defense the court may look behind the technical label that plaintiff attaches to a cause of action to the substance of the claim asserted. E.g., Seebacher v Fitzgerald, Hodgman, Cawthorne & King, PC, 181 Mich App 642; 449 NW2d 673 (1989); Barnard v Dilley, 134 Mich App 375; 350 NW2d 887 (1984).
E.g., § 5805(2) (false imprisonment), § 5805(3) (malicious prosecution), and § 5805(7) (libel and slander).
Since Sam v Balardo, supra, § 5805 was amended by 1978 PA 495, 1986 PA 178, and 1988 PA 115. We believe those amendments are at least some indication of the Legislature’s acquiescence in this Court’s construction of § 5805 and therefore support our adherence to the statutory analysis offered by Sam. See Dean v Chrysler Corp, 434 Mich 655, 664; 455 NW2d 699 (1990).
See also 15A CJS, Common Law, § 1, p 41.
See also 15A CJS, Common Law, § 21, pp 78-79 explaining:
In determining what the common law is, the courts will consider as evidence, although not as conclusive, textbooks, commentaries and other standard works on the subject. Judicial decisions also constitute evidence of what the common law is, and accordingly, decisions of the courts of the states, even though contrary to English decisions, may properly be consulted.
Of course, where Michigan has expressly rejected or modified • a common-law doctrine, reference to decisions of other states applying the common law would be improper. In the context of malpractice liability, however, Michigan’s law appears consistent with the common law. | [
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Riley, J.
In this case we are called upon to determine whether personal injury inflicted during the theft of a vehicle arises out of the use of that vehicle as a motor vehicle. Specifically, we must decide whether plaintiff’s injuries to his face and ankle from the assailant’s blow were the type of injuries that arise out of the normal use of a vehicle. Because this injury was a physical attack inflicted on plaintiff, we conclude that it did not arise out of the use of the vehicle as a motor vehicle.
With regard to the matter of attorney fees, we find that there has been enough controversy over the scope of the phrase "arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle” in MCL 500.3105(1); MSA 24.13105(1), that plaintiff’s claim was not frivolous. Hence, we reverse the decision of the Court of Appeals with regard to whether personal injury inflicted during the theft of a vehicle arises out of the use of that vehicle as a motor vehicle, and we affirm regarding costs and attorney fees.
i
On the evening of June 26, 1989, plaintiff entered his parked car and found two men in the back seat. These men forced him at gunpoint to drive to a church parking lot a mile away. One of the assailants then struck him in the face with his fist and threw him to the ground. The blow was so severe that plaintiff’s cheekbone, nose, and septal area were broken. When plaintiff hit the ground, he also broke his ankle. The assailants then drove away in the car. Subsequently, plaintiff filed a claim with defendant, his no-fault insurer. Defendant readily compensated plaintiff for the loss of his vehicle, but refused compensation for his personal injuries.
On May 30, 1990, plaintiff commenced this lawsuit, alleging that his injuries were compensable under the no-fault act, MCL 500.3101 et seq.; MSA 24.13101 et seq. Defendant filed a motion for summary disposition, contending that plaintiff ’s injuries did not arise out of the ownership, operation, maintenance, or use of the motor vehicle as a motor vehicle. On August 7, 1990, the court ruled in favor of defendant, finding that plaintiff’s injuries did not arise out of the ownership or use of the motor vehicle. The court did, however, deny defendant costs and attorney fees on the ground that plaintiff’s claim was not frivolous. The Court of Appeals reversed the grant of summary disposition and affirmed the denial of costs and attorney fees. Defendant petitioned this Court for leave to appeal, which was granted on December 29, 1994.
ii
In this case, defendant was granted summary disposition pursuant to MCR 2.116(0(10), which provides that "[ejxcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” When reviewing such a motion, we "consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the party opposing, the motion, and grant the benefit of any reasonable doubt to the opposing party.” Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993). Only if there is no genuine issue of any material fact is the moving party entitled to judgment as a matter of law. Stevens v McLouth Steel Products Corp, 433 Mich 365; 446 NW2d 95 (1989).
A
We find that summary disposition was appropriate. MCL 500.3105(1); MSA 24.13105(1) provides that an insurer is required to pay benefits where accidental bodily injury arises out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle.
Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.
The Court of Appeals had an opportunity to apply this rule in the present case.
We believe that there is a direct causal relationship between the use of a motor vehicle as a motor vehicle and injuries sustained during a so-called carjacking. The physical assault only occurs because the assailants wish to take possession of the vehicle. Unfortunately, such incidents are nowadays within the ordinary risks of driving a motor vehicle. [203 Mich App 341, 344; 512 NW2d 80 (1994).]
We are persuaded, however, that the Court of Appeals reached the wrong conclusion.
Plaintiff’s injuries arose out of the blows inflicted on him by a carjacker. Hence, plaintiff suffered a personal physical attack. Generally, such an attack is not compensable. See, e.g., DAIIE v Higginbotham, 95 Mich App 213; 290 NW2d 414 (1980), Hamka v Automobile Club of Michigan, 89 Mich App 644; 280 NW2d 512 (1979), and O’Key v State Farm Mut Automobile Ins Co, 89 Mich App 526; 280 NW2d 583 (1979).
In fact, this Court recently came to this very conclusion in Thornton v Allstate Ins Co, 425 Mich 643, 661; 391 NW2d 320 (1986). In Thornton, a taxicab driver picked up a customer. As he began to drive away from the curb, the customer drew a gun, shot him in the neck, and robbed him of his money. The injured driver then filed suit against the insurer of the cab, claiming that his injuries arose out of the use of the cab. However, this Court found:
While the injuries [a gunshot wound to the neck] were perhaps "foreseeably identifiable” with the occupational or commercial use of a motor vehicle as a taxicab, the relation of the gunshot wound to the functional use of a motor vehicle as a motor vehicle was at most merely "but for,” incidental, and fortuitous.
This Court arrived at a similar result in Marzonie v ACIA, 441 Mich 522, 534; 495 NW2d 788 (1992), in which the plaintiff claimed that his injuries arose out of the use of his car. Marzonie had had an argument with someone that ended when the person began shooting at Marzonie’s car. Marzonie was hit and seriously injured. This Court found that the insurance company had no duty to cover Marzonie because his injuries did not arise out of the use of this motor vehicle as a motor vehicle.
In the present case, the testimony of the plaintiff clearly demonstrates that shots were fired during the continuation of an argument that had begun before the chase. The involvement of the automobiles was incidental and fortuitous. Although Mr. Oaks says that the plaintiff’s car was moving toward him at a "creep,” the shooting arose out of a dispute between two individuals, one of whom happened to be occupying a vehicle at the moment of the shooting.
Similarly, in Auto-Owners Ins Co v Rucker, 188 Mich App 125, 127; 469 NW2d 1 (1991), plaintiff was a victim of a drive-by shooting.
In this case, the death arose from the firing of a shotgun. Although the vehicle made it easier for the criminals to approach the scene and to escape, its use was nonetheless incidental to the injury. One shudders to contemplate whether drive-by shootings have become foreseeable. It is, however, uncontestable that they are not identified with the normal use of a motor vehicle.
In Higginbotham, supra at 222, a woman was driving in her car when her estranged husband forced her to the side of the road with his vehicle. The husband then proceeded to shoot her numerous times while she was still in her car. The Court of Appeals found that "[a]n assault by an armed assailant upon the driver of a car is not the type of conduct that is foreseeably identifiable with the normal use of a motor vehicle.”
Finally, in Shaw v Allstate Ins Co, 141 Mich App 331; 367 NW2d 388 (1985), a man and his wife were followed home by robbers. Before they could get out of their car, the robbers approached them and shot the man while he still sat in the car. The Court of Appeals found that his death did not arise out of the use of his vehicle as a motor vehicle.
This decision denying coverage, along with the others, makes sense in light of the fact that
[a]utomobile insurance spreads the risk of damages from automobile accidents among the insured population. The limitation on liability to damages "resulting from the ownership, maintenance or use of a covered auto” ensures that the risk spread is the risk of automobile accidents, and not all accidents, or more accurately, incidents, to which an automobile can be tied, however remotely. [Aetna Casualty & Surety Co v United States Fidelity & Guaranty Co, 806 F2d 302, 303 (CA 1, 1986).]
In the present case, plaintiff’s injuries did not arise out of the use of his vehicle as a motor vehicle. The carjacker simply struck plaintiff. Hence, plaintiff’s vehicle was at best the situs of the injury, which is not a sufficient condition to establish the requisite causal connection between the injury and the vehicle. Shinabarger v Citizens Mut Ins Co, 90 Mich App 307, 314; 282 NW2d 301 (1979).
The Court of Appeals, however, did find this connection and cited Gajewski v Auto-Owners Ins Co, 414 Mich 968; 326 NW2d 825 (1982), for support. In that case, an incendiary device was attached to the ignition of the plaintiff’s car. Unfortunately, the device exploded when the plaintiff attempted to start his car by turning on the igni tion. This Court found that his injuries did arise out of the use of his car because the turning on of a car’s ignition is a normal activity associated with the use of a vehicle as a motor vehicle. This situation, however, is readily distinguishable from the facts in the present case, because plaintiff’s injuries, unlike the turning on of an ignition, were not required to use the vehicle.
The Court of Appeals also improperly focused on the intent of the assailant.
We believe that there is a direct causal relationship between the use of a motor vehicle as a motor vehicle and injuries sustained during a so-called carjacking. The physical assault only occurs because the assailants wish to take possession of the vehicle. [Bourne, supra at 344.]
As stated by this Court in Thornton and Marzonie, it is improper to use the intent of the assailant in order to create the causal connection. "We reject the focus that the Florida and Minnesota courts place upon the intent of the assailant as providing the requisite nexus between the injury and the use of the motor vehicle.” Thornton, supra at 660, n 10. Further, " 'the proper focus is upon the relation between the injury and the use of a motor vehicle as a motor vehicle,’ ” not on " 'the intent of the assailant . . . .’ ” Marzonie, supra at 532, quoting 425 Mich 660, n 10.
Bourne’s injuries did not arise out of the use of his vehicle as a motor vehicle. Hence, the Court of Appeals erred in reversing the trial court’s granting of summary disposition on this issue.
B
Defendant also maintains that plaintiff’s suit was frivolous, and as a result it should be entitled to attorney fees and costs.
In addition, Farmers submits that the Court of Appeals opinion, for the most part, disregarded this Court’s opinions in Thornton and Marzonie and relied on three opinions (Gajewski, Saunders [v DAIIE, 123 Mich App 570; 332 NW2d 613 (1983)] and Mann [v DAIIE, 111 Mich App 637; 314 NW2d 719 (1981)]) which had already been distinguished from cases such as this one in Thornton and Shaw four or more years before the instant case was even filed.
Defendant is correct that if a claim is frivolous, attorney fees may be awarded. MCR 2.114(F) provides:
In addition to sanctions under this rule, a party pleading a frivolous claim or defense is subject to costs as provided in MCR 2.625(A)(2). The court may not assess punitive damages.
MCR 2.625(A)(2) provides:
In an action filed on or after October 1, 1986, if the "court finds on motion of a party that an action or defense was frivolous, costs shall be awarded as provided by MCL 600.2591; MSA 27A.2591.
In the present cáse, the Court of Appeals examined this issue and found
[w]ith respect to defendant’s issue on cross appeal, in light of our conclusion that the motion for summary disposition was improperly granted, it is clear that plaintiff’s claim was not without merit. Accordingly, the trial court properly denied defendant’s motion for costs and attorney fees. [Bourne, supra at 344.]
We are persuaded that the Court of Appeals reached the right conclusion. There has been much debate over the years regarding the scope of the phrase "arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle” in MCL 500.3105(1); MSA 24.13105(1). This fact is evidenced by the wealth of case law on this topic. Consequently, plaintiff’s claim was not frivolous and defendant was properly denied its costs and attorney fees.
hi
Plaintiff’s injuries arose out of a physical attack, which is directly akin to Thornton in which no causal connection was found by this Court when a cabdriver was shot in the neck while driving his car. We conclude that under the facts of this case there was not a sufficient causal connection between plaintiff’s injuries and the use of his motor vehicle as a motor vehicle to find liability on the part of defendant. Thus, there was no genuine issue with regard to defendant’s liability and summary disposition was properly granted by the trial court. We also find that there was sufficient confusion in this area of law so as to prevent plaintiff’s claim from being frivolous. Consequently, defendant was properly denied attorney fees and costs. Thus, the Court of Appeals decision reversing the trial court’s granting of summary disposition in favor of defendant is reversed, and its decision denying defendant attorney fees is affirmed.
Brickley, C.J., and Cavanagh, Boyle, Mallett, and Weaver, JJ., concurred with Riley, J.
203 Mich App 341; 512 NW2d 80 (1994).
447 Mich 1048.
Although plaintiff cites Saunders v DAIIE, 123 Mich App 570; 332 NW2d 613 (1983), and Mann v DAIIE, 111 Mich App 637; 314 NW2d 719 (1981), for support, we are unpersuaded. We recognize that our citing of these cases in Thornton has created some confusion, however, we do not agree that assaults are part of "the normal risk” of motoring. Nevertheless, we are prepared to examine cases employing this methodology if and when we are presented with a case that raises the issue squarely. | [
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Van Valkenburg, J.
The defendant pled guilty to delivery of a controlled substance, lysergic acid diethylamide, contrary to MCLA 335.341(lXb); MSA 18.1070 (41Xl)(b).
On February 1, 1973, defendant allegedly sold the controlled substance to an undercover police officer at 106 Beech Street in Lansing, Michigan. At trial, this officer testified that defendant had offered to sell him drugs which defendant said were mescaline. The unlawful transaction was completed when defendant extracted four blue pills from a vial containing similar pills and delivered them to the undercover officer at $1.00 apiece. This testimony by the police officer completed the first day of trial.
On the second day of trial, defendant offered to plead guilty to unlawful delivery of lysergic acid diethylamide (LSD) in exchange for the prosecutor’s dismissing another charge against him. This plea bargain had been agreed to by the prosecutor and consequently the trial court proceeded to accept the guilty plea. In establishing a factual basis for the guilty plea, defendant stated that he had delivered pills to one Kathy Mason, who in turn gave the drugs to the undercover police officer in defendant’s presence. However, defendant apparently was not aware that the drugs were LSD since he had been told they were mescaline as is indicated in the following colloquy:
"Q. (by the court): Now, earlier you said, 'I told her I had some chemicals, I didn’t know what it was’. Did you suspect what it was?
”A. (by defendant): Yes, I did.
”Q. What did you suspect it was?
"A. I suspected it was mescaline.
”Q. Why did you suspect it was mescaline?
'A. That’s what I was told when it was given to me.
”Q. I gather there’s a difference between mescaline and LSD?
'A. Yes sir.
* # *
”Q. (by the court, continuing): Well, let me ask you, Mr. Sinclair. At that time, you’ve told me you didn’t really know what it was but you thought it to be mescaline, is that correct?
''A. Yes, sir.
”Q. Did you have any reason to believe that it might also be LSD?
"A. No, I believed what I was told.
"Q. How do you distinguish between LSD and mescaline?
'A. Actually, there’s no way except for word of mouth.”
Later, the trial court again questioned defendant about the chemical nature of the delivered drugs in order to establish defendant’s knowledge that they were LSD. Defendant replied evasively, however, and never acknowledged that he knew the drugs he had delivered to the undercover police officer were LSD.
Moreover, during the plea taking defendant maintained that the pills he had delivered to the undercover officer were white instead of blue like the pills introduced into evidence against him at trial. The court advised defendant that this difference could constitute a defense on which a jury might acquit him. But, defendant replied that he doubted the jury would acquit him on that basis and therefore he still wanted to plead guilty.
In this appeal, defendant contends that the trial court erred in accepting his guilty plea without establishing the correct chemical identity of the controlled substance and his knowledge thereof. Also, defendant argues that the trial court erred in accepting his guilty plea where his statement to the court indicated a discrepancy in the authenticity of the evidence which would constitute a valid defense at a trial.
In regard to defendant’s first contention, it should be noted initially that both mescaline and LSD are hallucinogenic substances which have the same classification in the Controlled Substances Act, MCLA 335.314(c); MSA 18.1070(14)(c). Similarly, unlawful delivery of either substance is subject to the same penalty.
The pertinent court rule, GCR 1963, 785.7(3)(c), provides that a court shall not accept a guilty plea "until it is satisfied that a crime was committed” and:
"If defendant’s description of his actions and any otherwise admissible evidence presented to the court on the record during the plea taking proceedings would not substantially support a finding that defendant is in fact guilty of the charged offense or the offense to which he is pleading, the plea shall be rejected by the court.”
Quite clearly, this carefully drafted rule does not require certain proof of any specific crime at a guilty plea proceeding. Rather, the requisite proof is that which will substantially support a finding, to the satisfaction of the trial court, that defendant is guilty of the charged offense or the offense to which he is pleading. When the trial court is satisfied that the facts substantially support a finding that defendant is indeed guilty of a crime, the court may accept the guilty plea.
In the instant case, the evidence was overwhelming at the trial and at the subsequent plea proceedings that defendant had participated in a violation of MCLA 335.341(l)(b); MSA 18.1070(41Xl)(b). There was some doubt at the guilty pleading as to whether the controlled substance unlawfully delivered was mescaline or LSD. Defendant said he "suspected” the substance in question was mescaline on the basis of his vendor’s representations, but defendant admitted he had no method of independently determining the identity of the substance. Since no contention has been made that defendant misunderstood the nature of the charge against him, it can be reasonably concluded that defendant accepted the police analysis that the substance was LSD, albeit at the time of the unlawful delivery defendant suspected it was mescaline. Indeed, when defendant’s statements at the plea proceeding are carefully considered, none of them directly contradicts this conclusion.
In these circumstances, the record of the plea proceeding does substantially support a finding that defendant is in fact guilty of violating MCLA 335.341(lXb); MSA 18.1070(41Xl)(b). Conclusive proof of a factual básis for the guilty plea is not required by the court rule despite defendant’s contentions in this appeal to the contrary.
As to defendant’s other contention of error based on an alleged difference in the coloration between the pills unlawfully delivered and those introduced into evidence at trial, it is well established that a court need not reject a guilty plea merely because there are discrepancies in the evidence which indicate possible defenses to the crime. The pertinent court rule, GCR 1963, 785.7(lXa), does not even oblige the trial court to explain possible defenses to a guilty-pleading defendant, and a fortiori does not require a court to explore and establish whether a defense exists. The principle is well stated in People v Garcia, 36 Mich App 141, 142; 193 NW2d 187, 188 (1971):
"Where defendant is represented by counsel, the trial court need not make exhaustive examination as to the possible defenses, even if the testimony of the accused gives some indication that defenses might have been raised at trial.”
Accord, People v Neal, 38 Mich App 586; 196 NW2d 789 (1972).
In passing, we note that some prosecuting attorneys, in order to save needless expense and inconvenience to witnesses and jurors, have adopted a policy of not acquiescing in the acceptance of guilty pleas at the beginning of or during trial. While this may be practical, it would be difficult indeed for a court, on a constitutional basis or otherwise, to refuse a plea where all the requirements of the court rule are met. Moreover, in view of the ever-increasing number of guilty plea appeals to this Court, we feel constrained to urge most respectfully that trial judges employ meticulous care, even to the extent of having a check-off system if necessary, in order to be certain that each and every requirement of the court rule is complied with.
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Carland, J.
Elwood Johnson, plaintiff-appellee, was 65 years old at the time of the hearing and had been employed by Saginaw Foundries, defend ant-appellant, hereinafter referred to as Saginaw, from July 1951 to May 5, 1969, and employed by Valley Grey Iron Foundry, defendant-appellee, hereinafter referred to as Valley, from May 7, 1969 to October 3, 1969.
Plaintiffs primary jobs with Saginaw were those of a furnace helper, ladle man and grinder. Plaintiff testified that while so employed the atmosphere within Saginaw’s plant was contaminated with dust and smoke. In 1968 plaintiff noticed a shortness of breath. When plaintiff began to cough up black phlegm, he sought medical treatment from his family physician. On three occasions in 1968, plaintiff was hospitalized for his respiratory ailments. Shortly after being discharged from the hospital the last time for such ailment, Saginaw’s plant was destroyed by fire and plaintiff was assigned to a cleanup job.
On May 5, 1969, the last day of work for Saginaw, plaintiff suffered a groin injury when a grinding wheel which he was operating exploded. He was off work one day and on May 7, 1969, he became employed by Valley. At Valley he encountered the same atmospheric conditions as at Saginaw. He began to cough yellow phlegm at night until finally, being unable to work because of the smoke and dust, he quit on October 3, 1969. Plaintiff was thereafter employed as a janitor at Saginaw High School until June 30, 1971.
On or about August 27, 1970, plaintiff filed a petition for hearing with the Bureau of Workmen’s Compensation against Saginaw and Valley, alleging an injury to the groin on May 5, 1969, and alleging a disability of the chest, throat, lungs and related conditions as the result of exposure to unusual and excessive amounts of dust, smoke, fumes and related work environment at both Saginaw and Valley.
Thereafter, on October 27, 1971, a hearing was held before Referee Nolan for the purpose of discussing a proposed redemption of plaintiffs claim against Saginaw. Both plaintiff and Saginaw and its insurer American Mutual Liability Company participated in this hearing. Although Valley was represented by counsel at this hearing, it took no part therein.
During the course of the hearing, the referee elicited from plaintiff the fact that he, the plaintiff, understood that he was settling all claims which he might have against Saginaw.
"Referee: Now as to what’s going to happen to Valley Grey Iron Foundry and what you claim you are entitled to there, is something that will have to be tried; but what you are redeeming is your Saginaw Foundry case. Do you understand that?
"A. [plaintiff]: Yes.
"Referee: That’s where the grinding wheel exploded?
"A. Yes.
"Referee: It hit you in the groin?
"A. Yes.
"Referee: If you have any chest problems as a result of the Saginaw Foundries employment or any back trouble or anything else, that is all wiped out. Do you understand that?
"A. Yes, I understand that.
"Referee: Well, all right. Do you understand what that is? You are gambling on what might happen here. If we have a case against Valley Grey Iron and if I decide that all your problems came from the work over at Saginaw Foundries, then there is not going to be much we can do for you and your case against Valley Grey Iron. Do you understand that?
"A. Yes.
"Referee: On the other hand, if I should find that there could be some connection, then you might get more money; but, you know you are gambling on this?
"A. (No response.)
"Referee: You are settling off with one company.
"A. Well, what do you mean about gambling?
"Referee: There is no guarantee that when you come to try a lawsuit, as your attorney has explained to you, there is no guarantee that you are going to win. You were with Valley Grey Iron for five months or something like that?
"A. Yes.
"Referee: And to try and make them pay for all of the things that happened to you while you worked for 18 years over at Saginaw Foundries, you may be able to do it, but then on the other hand, you may not.”
It is clear from the foregoing that the plaintiff was advised by the referee that he was settling his claims against one company only (Saginaw). He was further advised that if he failed in his claim against Valley, that he could recover nothing further against Saginaw. He was not advised, however, that if he received an award against Valley, such award would be reduced by virtue of the terms of the proposed redemption agreement.
It clearly appears from the redemption hearing record that all parties were fully aware of the position taken by the other parties. Saginaw was told in no uncertain terms by plaintiff’s attorney that since Saginaw was not plaintiff’s last employer, plaintiff was making no claim against it for compensation as a result of the dust disease, but that plaintiff intended to proceed against Valley as to this portion of his claim. Plaintiff was also aware that it was Saginaw’s position that the redemption would prevent it from becoming liable for any apportionment or contribution in the event of an award against Valley. All parties were advised they were gambling as to the legal effect of the redemption agreement. It would therefore seem that since the parties were patently in disagreement as to the legal effect of what they were doing, that when the agreement was signed and the money paid, all parties thereby said "we are willing to take our chances”. The referee approved and the plaintiff signed the following agreement:
"Plaintiff offers and agrees to settle any and all claims for compensation benefits and all past, present and future medical, surgical and hospital expenses, under the provisions of the Michigan Workmen’s Compensation Act, by way of a redemption of liability for injuries to his back, head, legs, groin, extremities, lungs, heart, neurosis and all related problems, in the amount of $4,000.00.”
On the day following the redemption hearing, Valley moved to join Saginaw and its insurer as parties defendant pursuant to MCLA 418.435; MSA 17.237(435) "so that proper apportionment pursuant to the Workmen’s Compensation Act can be made”. The motion was granted over Saginaw’s objection.
A full compensation hearing was held December 15, 1971. The only witness was the plaintiff who testified to occupational disability because of exposure to dust and other irritants over a long period of time, The referee found the plaintiff to be disabled and fixed benefits at $74 per week. He further stated that he would normally apportion such award between the two employers in direct proportion to the length of time the employee was employed by each of the defendants. On this ratio 212/217 of the benefits would be paid by Saginaw and 5/217 would be paid by Valley. However, the referee further decided that plaintiff’s redemption acted to vitiate any derivative liability of Saginaw and would prevent apportionment. Valley was then ordered to pay as an award the sum of $1.70 per week.
The plaintiff immediately appealed this decision to the Workmen’s Compensation Appeal Board which reversed the referee by a three to two vote. The majority holding that the statute allowed plaintiff to seek and obtain full recovery from his last employer despite the redemption agreement. Saginaw sought and obtained leave to appeal.
This appeal raises issues novel to Michigan and so far as we are able to discover, novel to all other jurisdictions as well. The briefs of the parties cite virtually no authority to support the positions taken by them, and none appear to exist. Essentially, this case must turn upon our answer to the question as to the effect of the redemption agreement entered into pursuant to statute when we consider the provisions of MCLA 418.435; MSA 17.237(435).
At the time of the filing of this claim, Saginaw was faced with two possible liabilities. First a possible direct liability to plaintiff arising from the groin injury and second, a possible derivative liability of contribution to Valley in the event of an award against Valley. Hence, the essential question which must be answered on this appeal is did the redemption agreement settle both the direct and the derivative liability? The real quarrel between the parties is whether the phrase "any liability” in the redemption statute refers to only direct liability or to derivative liability as well.
As used in the act, "any liability” does not necessarily mean that only all liability may be settled. It would seem that a sensible construction of the phrase is that any liability which the par ties wish to settle may be settled. In Wehmeier v W E Wood Co, 377 Mich 176; 139 NW2d 733 (1966), the Court found the clear intention of the parties was to close out all of defendant’s liability. Here it would seem that such clear intention cannot be found from the redemption record.
The dust disease apportionment statute reads in relevant part:
"The total compensation due shall be recoverable from the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted. If any dispute or controversy arises as to the payment of compensation or as to liability therefor, the employee shall give notice to and make claim upon the last employer only and apply for a hearing against the last employer only.” MCLA 418.435; MSA 17.237(435).
Judicial construction of this statute is unanimous in holding that the employee "must” proceed against the last employer, Smith v Lawrence Baking Co, 370 Mich 169; 121 NW2d 684 (1963); Trellsite Foundry & Stamping Co v Enterprise Foundry, 365 Mich 209; 112 NW2d 476 (1961); Aseltine v Leto Construction Co, 43 Mich App 559; 204 NW2d 262 (1972).
"The party responsible for the employer’s liability on the last day of work in the employment in which the employee was last subjected to the condition resulting in disability must be charged with payment of the compensation accruing.” Aseltine, supra, p 561.
The entire structure of the act seems to contemplate the imposition of liability upon a single employer. MCLA 418.401; MSA 17.237(401) reads as follows:
"(a) 'Disability’ means the state of being disabled from earning full wages at the work in which the employee was last subject to the conditions resulting in disability.
"(b) 'Disablement’ means the event of becoming so disabled.
"(c) 'Personal Injury’ shall include a disease or disability which is due to causes and conditions which are characteristic of and peculiar to the business of the employer and which arises out of and in the course of the employment. Ordinary diseases of life to which the public is generally exposed outside of the employment shall not be compensable. A hernia to be compensable must be clearly recent in origin and result from a strain arising out of and in the course of the employment and promptly reported to the employer.”
The act first sets up a specific "time of injury” for an occupational disease which will be "the last day of work in the employment in which the employee was last subjected to the conditions resulting in disability or death”. MCLA 418.301; MSA 17.237(301).
The most reasonable interpretation of the act is that the Legislature intended to give the plaintiff a single direct action against only his last employer. Therefore, insofar as the occupational disease of plaintiff is concerned, Saginaw had no liability to plaintiff. Valley was liable in whole to plaintiff and its liability was not affected by plaintiffs redemption agreement with Saginaw. Neither could Valley’s rights to contribution from Saginaw be affected by an agreement to which it was not a party. This being so, only Saginaw’s direct liability for the groin injury was redeemed. At the time of the redemption hearing, this was understood by the plaintiff, by the referee and was at least contemplated by Saginaw’s counsel since he felt that he could, as the referee stated, "wipe out the last employer”. We agree with the finding of the appeal board that
"The redemption agreement entered into between plaintiff and defendant Saginaw Foundries prior to the joinder of Saginaw Foundries as a party defendant by the last employer Valley Grey Iron Foundry, which agreement redeemed all liability of Saginaw Foundries to plaintiff, does not bar plaintiff’s action against the last employer or the last employer’s action against Saginaw Foundries since no liability for the dust disease exists directly between defendant Saginaw Foundries and the plaintiff. The redemption agreement does bar any action which plaintiff may have had against Saginaw Foundries as a result of his other alleged injuries.”
We find no merit to Saginaw’s due process or equal protection argument. Saginaw is not here required to pay twice nor is plaintiff receiving double compensation for the same injury. The plaintiff had two claims and Saginaw has redeemed its liability for the groin injury only. Plaintiff’s claim against Valley was not affected by the redemption. The equal protection argument fails because the factual situation does not meet the legal arguments. The equal protection rule is stated in Fox v Employment Security Commission, 379 Mich 579, 589; 153 NW2d 644 (1967), where the Court states:
"It is well recognized that the legislature may make classifications of persons, provided such classifications are based on substantial distinctions and are in accord with the aims sought to be achieved. (Citing cases). However, such classification must be neither arbitrary nor capricious, but must rest on reasonable and justifiable foundations. In Haynes v Lapeer Circuit Judge [201 Mich 138, 141-142; 166 NW 938 (1918)], the rule is stated:
" 'Legislation which, in carrying out a public purpose for the common good, is limited by reasonable and justifiable differentiation to a distinct type or class of persons is not for that reason unconstitutional because class legislation, if germane to the object of the enactment and made uniform in its operation upon all persons of the class to which it naturally applies; but if it fails to include and affect alike all persons of the same class, and extends immunities or privileges to one portion and denies them to others of like kind, by unreasonable or arbitrary subclassification, it comes within the constitutional prohibition against class legislation.’ ”
In this case Saginaw complains not because it is treated unlike other members of its class but because it is treated exactly like every member of its class, i.e., that because it is required to pay its pro rata share of expenses, Saginaw wants to be placed in a separate category and treated differently because it has made a redemption settlement. It argues in effect that to treat persons differently situated equally is a denial of equal protection. There is no question of due process because Saginaw received notice and participated in the hearing.
None of the other issues argued by the appellant were raised before the appeal board and were therefore not preserved in this appeal.
The decision of the Workmen’s Compensation Appeal Board is affirmed.
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Carland, J.
The defendant was convicted by a jury of carrying a dangerous weapon in a motor vehicle contrary to the provisions of MCLA 750.227; MSA 28.424, and appeals as a matter of right.
The circumstances of defendant’s arrest which are important to the disposition of this case are not in dispute. Either in the late evening of October 11, 1973 or in the early morning hours of October 12th, police officer Bryant and his partner apprehended the defendant and one Daniel Smith as they were in the process of stealing a truck from "Walter’s Appliance” in Livonia, Michigan. At the time of this apprehension, Smith was driv ing the truck from the store’s parking lot and the defendant was following him in a Buick automobile previously rented by Smith. The police stopped both vehicles and requested that the drivers get out of the cars. After the defendant left the Buick, Officer Bryant, using a flashlight, observed a revolver on the floor of the car partially concealed under the driver’s seat.
Before the defendant’s trial, Smith, who had pled guilty to unlawfully driving away a motor vehicle, was endorsed on the information as a res gestae witness. Smith was called by the prosecution and testified that he had rented the Buick which was being driven by the defendant at the time of his arrest. Smith further testified that defendant had driven the same Buick on at least two previous occasions. However, when asked whether Smith had a gun in the Buick, he refused to answer on grounds of self-incrimination. Smith also denied making any statement to a detective Benson concerning defendant’s knowledge of the presence of the gun in the car.
At that point, the prosecutor requested the court to declare Smith to be a hostile witness for the purposes of cross-examination and impeachment, asserting that Benson would testify that Smith had told him that the defendant knew about the gun being in the car prior to his arrest. The trial court made no ruling on this request but advised the prosecutor that Smith could be cross-examined and impeached as a res gestae witness. No objection was made by the defendant to this ruling. Accordingly, the prosecutor again asked Smith whether he had made any statement to Benson in relation to the gun. Smith repeatedly denied the making of any statement of this nature. Similarly, under questioning by defense counsel, Smith dis claimed any knowledge as to defendant’s knowledge of the gun being in the car.
Detective Benson then testified on behalf of the people to the effect that Smith had stated that defendant knew about the gun and its presence in the car. He further testified that Smith later recanted his statement as to the defendant’s knowledge of the weapon.
Did the trial court err in allowing the prosecution to impeach the testimony of Smith who it is claimed was the accomplice of the defendant? The defendant explicitly concedes that Smith was a res gestae witness to the concealed weapon offense, but was Smith an accomplice of the defendant? If Smith was such an accomplice, the prosecution was under no obligation to produce or call him as a witness. Having no obligation to produce under the rule of People v Fidel, 37 Mich App 338; 194 NW2d 732 (1971), the people could not impeach Smith’s testimony with the testimony of detective Benson.
“We hold here that the right of the prosecution to impeach its own witness is derivative of, and coextensive with, the obligation to call that witness. Absent the obligation, a witness thus called becomes the people’s witness and subject to the settled rules concerning the examination of any witness voluntarily called by either party.”
In a recent similar case, People v West, 56 Mich App 37; 223 NW2d 353 (1974), it was held that where there is no rational connection between the alleged concerted activity of defendant and the res gestae witness and the charge under which the defendant was brought to trial, the accomplice exception to the res gestae witness statute is to be narrowly construed so as to compel the prosecu tion to endorse and produce the purported accomplice as a res gestae witness. In other words, where there is no direct and necessary relationship between the concerted criminal activity of defendant and the res gestae witness and the offense for which defendant is tried, then the res gestae witness does not come within the accomplice exception.
Applied to the instant case, the West principle compels the conclusion that Smith was not an accomplice within the exception to the res gestae witness statute. As in West, the carrying a dangerous weapon in a motor vehicle charge against defendant had no rational or direct relationship to their concerted criminal enterprise of stealing the truck. Thus the prosecution was under a duty to call Smith as a res gestae witness and therefore could impeach his testimony with the testimony from detective Benson about Smith’s prior inconsistent statements.
The defendant further claims that the proofs adduced at the trial were insufficient to support a finding of guilt beyond a reasonable doubt. He argues that no proofs were offered as to the knowledge of the presence of the gun on the part of the defendant. He asserts in effect that even had the statement attributed to Smith by detective Benson been in fact made, that they were hearsay as to the defendant and were not substantive proof of guilt. With this contention of the defendant, we are in agreement. The statements of Smith, even if made, were clearly hearsay as to the defendant, not binding upon him, nor would they have been substantive proof of defendant’s guilt. However, the evidence of the officer was received without objection and therefore any error arising therefrom was not preserved for appeal.
We are, nonetheless, faced with the question as to the sufficiency of the proofs. Were there facts upon which the jury might determine guilt beyond a reasonable doubt? If proof of the elements of the offense alleged was presented to the jury, its verdict must stand. The precise question was raised in People v Cunningham, 20 Mich App 699; 174 NW2d 599 (1969), where the Court spoke as follows:
"In the instant case the proof established the presence of the shotgun in the back seat of the vehicle. From this established fact the jury could have reasonably inferred that the defendant had the requisite knowledge.”
In the case at bar the proofs established the presence of the gun in a car occupied by the defendant. From these established facts, the jury could reasonably have inferred that the defendant likewise had the requisite knowledge. .
We therefore affirm. | [
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Danhof, C.J.
Plaintiff appeals as of right from an order granting a summary judgment to the City of Detroit (hereinafter defendant) pursuant to GCR 1963, 117.2(1) on the basis of governmental immunity.
Plaintiff’s complaint arose out of defendant’s operation of an emergency call and dispatch system known as the "911” emergency system. Defendant employs operators to take 911 emergency calls from the public. These operators attach priority ratings to each call based upon its nature and police units are dispatched in accordance with the priority ratings.
The complaint avers that on April 23, 1978, several 911 calls were made to unidentified operators, requesting emergency assistance at the home of plaintiff’s decedents. Plaintiff alleges the 911 operators attached an unjustifiably low priority rating to these calls and passed them on to defendant Philip Torbit, the police dispatcher, who failed to dispatch police vehicles for approximately 1-1/2 hours after receiving the first call. Plaintiff’s complaint asserts that as a result, Rosa and Gino Brigolin sustained numerous injuries that resulted in their deaths.
When defendant filed its motion for summary judgment, contending that plaintiff’s claim is barred by the principle of governmental immunity, plaintiff responded with an amended complaint that re-alleged the defendant’s and its employees’ negligence. In addition, plaintiff charged that defendant’s intentional and wanton misconduct caused the death of plaintiff’s decedents. The trial court found that the 911 system is part of the Detroit Police Department, which is a governmental function immune from tort liability. It also ruled that plaintiff’s amended complaint did not plead sufficient facts to allege intentional wrongdoing by defendant or its employees. Defendant Tor-bit made a settlement with plaintiff and the claim against the unidentified 911 operators was dismissed. From the trial court’s order of summary judgment in favor of the defendant, plaintiff raises two issues on appeal.
Initially we note that the purpose of a motion for summary judgment based on GCR 1963, 117.2(1) is to test the complaint to determine whether a plaintiff has pled facts which support a cause of action. The scope of the examination is confined to the pleadings; factual allegations of the complaint are taken as true, along with any inferences and conclusions which may fairly be drawn from the facts alleged. Rubino v Sterling Heights, 94 Mich App 494; 290 NW2d 43 (1979). When governmental immunity forms the basis of the motion, a burden rests upon the plaintiff to plead facts in avoidance of immunity. Fuhrmann v Hathaway, 109 Mich App 429; 311 NW2d 379 (1981).
Plaintiff argues that the court erred in finding that the operation of a 911 system for police emergency calls constituted a governmental function. In analyzing this issue, we first determine whether defendant was engaged in a governmental function entitled to immunity from tort liability under MCL 691.1407; MSA 3.996(107). This statute provides:
"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.”
The term "governmental function” is not defined in the statute. Of necessity, the determination of which activities may be classified as governmental functions is a task left to the courts by the Legislature. Keenan v Secretary of State, 103 Mich App 82; 302 NW2d 602 (1981). The Supreme Court is split on the interpretation of this statutory term, usually deciding whether particular activities are governmental functions on a case-by-case basis. Since this case involves an operational aspect of the Detroit Police Department, as opposed to a decisional or planning aspect, Justices Kavanagh, Fitzgerald and Levin, using the "of essence to governing” test, would find that no governmental function was involved in the act alleged to have been negligently performed. See Thomas v Dep’t of State Highways, 398 Mich 1, 22; 247 NW2d 530 (1976) (dissenting opinion of Kavanagh, C.J., and Fitzgerald, J.). Conversely, using a common-law analysis, Chief Justice Coleman, and Justices Ryan and Williams would find that the operation of a police department is a governmental function. Berger v Berkley, 87 Mich App 361; 275 NW2d 2 (1978), lv den 406 Mich 969 (1979).
Therefore, Justice Moody’s position on governmental -immunity is the key to understanding how the Supreme Court would resolve this issue. On the basis of Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978), and Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978), we conclude that the operation of a police department presents factors that would make such activity governmental under Justice Moody’s broader statement of the governmental essence test.
The government plays a pervasive role in providing for the public peace and for the safety of persons and property. MCL 117.3(j); MSA 5.2073(j); Detroit Charter, art 7, ch 11, § 7-1101. Municipal budgets include substantial appropriations for police services. Police officers are exclusively vested with powers and duties, too numerous to list, essential for the protection of public peace and safety. In short, the police perform an essentially unique activity which can be effectively accomplished only by the government. It would be incongruous to find that the operational activities of a police department are other than governmental. Therefore, we find that the operation of a police department is a governmental function entitled to immunity. Berger, supra; McPherson v Fitzpatrick, 63 Mich App 461; 234 NW2d 566 (1975).
Since the police function is governmental, we must next determine whether the particular activity at issue is related to the governmental function. If it is, immunity is warranted. See, for example, Rouse v Michigan, 109 Mich App 21; 311 NW2d 144 (1981). Operation of an emergency dis patch system is an indispensable part of the operation of a police department. Furthermore, the operation of such a system necessarily involves decision-making concerning the seriousness of each call for police assistance and the order of priority for response which should be attached to those calls. None of these activities have a "common analogy in the private sector”. Parker, supra, p 200. The fact that the operation of a 911 system may also involve the performance of other services which are unrelated to the activities discussed above is irrelevant. We are only concerned with whether this particular activity constitutes a governmental function. Cobb v Fox, 113 Mich App 249, 255; 317 NW2d 583 (1982). Accordingly, we are of the opinion that the activity involved here is essentially a unique activity associated with the operation of a police department and that immunity must be extended.
Plaintiff’s reliance on Berkowski v Hall, 91 Mich App 1; 282 NW2d 813 (1979), is misplaced. In Berkowski, a panel of this Court ruled that a municipality’s operation of emergency medical services (EMS) units is not of essence to governing. Berkowski is distinguishable in that the government does not have sole responsibility for providing on-the-scene emergency medical service. Defendant rightfully points out that the government receives substantial competition in this area from private ambulance companies. There is no. common analogy to a police department in the private sector. The. trial court did not err in granting defendant’s motion for a summary judgment on plaintiff’s claim that the 911 system was operated negligently. The pleadings fail to state a claim in avoidance of immunity.
The second issue on appeal is whether the trial court erred when it granted defendant’s motion for a summary judgment as to plaintiffs claim that the 911 operators and the police dispatcher committed intentional torts. In Lockaby v Wayne County 406 Mich 65; 276 NW2d 1 (1979), in four opinions, the Supreme Court found that immunity does not extend to intentionally tortious acts committed by a defendant’s agents, since such acts are not within "the exercise or discharge of a governmental function”.
Plaintiff contends that the unnamed 911 operators committed an intentional tort by assigning the 911 calls an unduly low priority rating. Nowhere in the complaint or the amended complaint does it appear that the 911 operators intentionally gave the 911 calls a lower priority with the knowledge that harm would result to the subjects of the calls. Similarly, the amended complaint alleges only that the police dispatcher "failed to dispatch police vehicles for approximately 1-1/2 hours after receiving the first call for emergency assistance”. Each of these allegations claim, at best, negligence of the 911 operators and the dispatcher in failing to correctly interpret the 911 calls and failing to dispatch police vehicles quickly. Further, as a matter of law, neither the allegation against the 911 operators nor the allegation against the police dispatcher alleges sufficient facts to make out a claim for an intentional tort. Therefore, the operators and the dispatcher were engaged in activity that was in the exercise or discharge of a governmental function. Thus, defendant is immune. The trial court did not err in granting summary judgment on this issue.
Accordingly, we find that the City of Detroit is protected by the cloak of governmental immunity. The trial court did not err in ruling that the plaintiff had failed to allege sufficient facts in avoidance of governmental immunity.
Affirmed. No costs, a public question.
J. R. Ernst, J., concurred.
This statement is correct in explaining the ultimate holding as applied to the unique facts of Lockaby. However, Justice Williams would add a caveat:
"[Justice Levin’s] opinion, citing McCann v Michigan, 398 Mich 65; 247 NW2d 521 (1976), states that 'a majority of the Court agreed that an intentional tort was not in the exercise or discharge of a governmental function’. The statement is not incorrect as explaining the ultimate holding under the facts of McCann, but I do not read McCann as authority for the broad proposition that intended conduct which harms another is never protected by governmental immunity. A tort is a civil wrong and conduct which is wrong within one setting can be permissible within another. For example, a police officer may not intentionally strike a citizen peacefully walking down the street, but his duty may require the police officer to intentionally strike another citizen to prevent him from murdering a third peaceful citizen. Further, McCann clearly sets limits that the conduct must be without and not within the scope of the exercise and discharge of a governmental function.” 406 Mich 82-83. | [
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Per Curiam.
Defendant was convicted in a bench trial of involuntary manslaughter, MCL 750.321; MSA 28.553, and was subsequently sentenced to five years probation, with the first nine months to be spent in the Wayne County Jail on a work-release program. Defendant now appeals as of right.
The charge against defendant arose out of the February 3, 1980, death of Fred Warren, a prisoner at the Detroit Police Department Second Precinct lock-up where defendant was employed. Warren died as a result of being struck with a blackjack on the left side by defendant. The blow was the culmination of an argument between Warren and defendant, an argument that defendant claimed was the result of Warren’s refusal to turn over his belt to defendant upon being placed in a cell. Warren apparently was a severe alcoholic whose liver and spleen were so enlarged that they were in contact. The sudden impact of the black jack caused Warren’s spleen to rupture against his hardened liver, resulting in substantial internal bleeding.
Defendant raises two issues on appeal. First, that the information charging manslaughter by an unlawful act not naturally tending to cause death or great bodily harm failed to state a crime. Second, that the trial court’s verdict was based upon an erroneous standard that deprived defendant, as a police officer, of his lawful discretion to use reasonable force.
In his first argument, defendant contends that the crime of involuntary manslaughter cannot exist unless the act committed was inherently dangerous so that the resulting death was foreseeable. The Supreme Court has defined the crime of involuntary manslaughter as one not requiring intent or foreseeability of harm. People v Townes, 391 Mich 578, 591; 218 NW2d 136 (1974). The information charging defendant was consistent with this definition, alleging that defendant killed Warren "unintentionally and without malice, by doing an unlawful act, to wit: assaulting [Warren] with a slapjack or blackjack, an act not naturally tending to cause death or great bodily harm”. We do not believe that the principle that criminal liability must reflect a culpable mental state is violated by the Townes definition of involuntary manslaughter. Cf. People v Aaron, 409 Mich 672, 708; 299 NW2d 304 (1980).
In his second argument, defendant misapplies the doctrine that a police officer has the right in making an arrest to use that force reasonable under the circumstances. People v Doss, 406 Mich 90, 101-103; 276 NW2d 9 (1979). The events that resulted in Fred Warren’s death did not involve his arrest. Mr. Warren was already arrested, had been placed in a holding cell and, presumably, was without means of escape. Under these circumstances, the severe force that was apparently utilized by defendant was unjustified. Indeed, a police department memorandum applicable to persons already arrested and imprisoned mandates that no measure of severity is justified when there is no reason to fear the prisoner’s escape. Further, even if the incident had occurred during the decedent’s arrest, a question of fact nevertheless would have existed as to whether the force used was reasonable under the circumstances.
Defendant does not specifically argue that the evidence at trial was insufficient to support his conviction. Nevertheless, because defendant has alluded to such a claim in his first argument, we agree with the dissenting opinion that such an argument bears addressing. In determining the sufficiency of the evidence supporting a conviction, we view the trial evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found the elements of the crime proven beyond a reasonable doubt. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979); People v Johnson, 112 Mich App 483, 489; 316 NW2d 247 (1982); People v Delongchamps, 103 Mich App 151, 159; 302 NW2d 626 (1981). Involuntary manslaughter has been defined as "the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty”. People v Townes, 391 Mich 578, 590; 218 NW2d 136 (1974); quoting People v Ryczek, 224 Mich 106, 110; 194 NW 609 (1923). We believe that when the evidence adduced at trial is viewed in a light most favorable to the prosecution, it is more than sufficient to allow a rational trier of fact to find beyond a reasonable doubt that defendant killed Fred Warren in the commission of an unlawful act.
Three prisoners in the Second Precinct lock-up were eyewitnesses to the alleged assault. Timothy Washington testified that he was processed by defendant at the same time that Warren was processed. He indicated that Warren and defendant argued about some medicine that was taken from Warren and over whether Warren was a "junkie”. According to Washington, the arguing continued after defendant had placed Warren within a cell. He stated that defendant reopened the cell door, stepped inside and spit at Warren. When Warren spit back, defendant took out his blackjack, ran toward the retreating Warren and struck him on the left side with the blackjack. Washington also stated that defendant kicked Warren around the knee and told him, "If he said anything else he would crack his skull”. Washington indicated that Warren slid down the wall after being struck. He also testified that while Warren was belligerent and ready to fight, he threw no punches.
Chuckie Williams, who was in the cell adjacent to Warren’s cell, testified that defendant and Warren were "passing words” as Warden was led to the cell. Williams stated that defendant taunted Warren after locking him in the cell, and then reopened the cell door and spit at Warren. Williams testified that he saw defendant pull out a blackjack, raise it over his shoulder and run into the cell. Williams lost sight of defendant but heard a hitting sound and then something hitting the wall. Williams stated that he heard defendant warn Warren that if he moved defendant would split his skull.
Claude Langston, who was in a cell diagonally across from Warren, testified that Warren staggered and spoke profanely to defendant as he was placed in the cell. Langston indicated that defendant stood outside the cell listening to Warren curse at him when Warren spit at defendant. Defendant spit back as he re-entered the cell and drew out his blackjack. Langston stated that defendant cornered Warren and that Warren attempted unsuccessfully to throw punches. According to Langston, defendant hit Warren once with the blackjack and then kicked him in the stomach.
Defendant testified on his own behalf. He stated that he suspected Warren of ingesting drugs in a bathroom and that the two exchanged words as Warren was registered. Defendant claimed that after he closed the cell door, he noticed that Warren still had his belt. When he requested the item, Warren refused and cursed him. He testified that when Warren spit at him, he spit back and entered the cell to retrieve the belt. Defendant contended that Warren began to throw punches, so he struck Warren once in the side with his blackjack. He státed that he then grabbed the belt and left the cell.
A glaring difference between the testimony of the defendant and that of the three witnesses to the incident is that none of the prisoners observed a dispute over Mr. Warren’s belt. Each of those witnesses indicated that the blow from the blackjack was the culmination of an argument and spitting contest between defendant and Warren that had begun before Warren was even placed in the cell. Viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have concluded that defendant re-entered the cell not to retrieve Warren’s belt but because he was angry at Warren and wanted to physically retaliate for Warren’s cursing and spitting. A rational trier of fact could have thus viewed defendant’s conduct as a felonious assault or an assault with intent to do great bodily harm. Moreover, even if a trier of fact accepted as true, as the trial court did, defendant’s claim that he reentered the cell to retrieve Warren’s belt, a guilty verdict could nevertheless be supported. As the trial court observed, it should have been plainly evident from the arguing that preceded the entry into the cell that Warren was not going to be cooperative and that force would be necessary to remove his belt. Thus, although defendant had a responsibility to retrieve the item, it is manifest that the task should have been accomplished with the aid of other officers to avoid the need to use severe force. As noted above, police department policy prohibited measures of severity absent a reason to fear the prisoner’s escape. A rational trier of fact could have concluded that defendant had no justification for using the force that he did, and, therefore, committed an unlawful act — at minimum a simple assault and battery — in doing so. Pursuant to the Supreme Court’s definition of involuntary manslaughter in People v Townes, supra, the offense could have been deemed proven beyond a reasonable doubt. For these reasons, we affirm defendant’s conviction and sentence.
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D. E. Holbrook, Jr., J.
Petitioner, American Title Insurance Company, pays $2,662 monthly for the nonexclusive use of an office in the City-County Building. The City of Detroit appeals as of right from the decision by the Michigan Tax Tribunal that the petitioner’s use of the office is not subject to taxation. The city contends that MCL 211.181(1); MSA 7.7(5)(1) controls:
"When any real property which for any reason is exempt from taxation is leased, loaned, or otherwise made available to and used by a private individual, association or corporation in connection with the business conducted for profit, the lessees or users thereof shall be subject to taxation in the same amount and to the same extent as though the lessee or user were the owner of such property.”
United States v Detroit, 345 Mich 601; 77 NW2d 79 (1956), states that the legislative intent of the above statute was to put businesses owning or leasing private property on an equal footing with users of tax exempt government property by eliminating any element of unfair competition between them by requiring an equal tax burden on both.
Petitioner relies on MCL 500.440; MSA 24.1440, which provides that foreign insurance companies must pay a tax equal to two percent of the premiums collected in this state. In pertinent part the statute provides:
"These specific taxes shall be in lieu of all other taxation, whether state or local, excepting for real estate owned by insurers within the state.”
The petitioner does not own the property at issue. The words "owned by” have a clear and definite meaning, i.e., denoting an absolute and unqualified title. Goodwin, Inc v Orson E Coe Pontiac, Inc, 43 Mich App 640, 645; 204 NW2d 749 (1972). The petitioner does not have an absolute and unqualified title to the subject property. It has a nonexclusive use, and the title is vested in a governmental entity.
The statutes relied upon by the respective parties initially appear to be in direct conflict in pari materia. One statute creates a specific tax in lieu of all other taxes except taxes on the ownership of real property. The other statute provides that lessees or users of property shall be subject to taxation as though they were the owner.
In interpreting statutes which cover the same general material, a fundamental rule is that they must be construed together to give meaning to both, if at all possible. Council No 23, Local 1905, AFSCME v Recorder’s Court Judges, 399 Mich 1, 10; 248 NW2d 220 (1976). Holding that the Insurance Code provision controls is consistent with the legislative intent of both statutes. In the instant case, petitioner does not possess an unfair advantage over its competition. It pays $31,944 annually for the use of an area which is also utilized by employees of other title insurance underwriters. Petitioner does not escape taxation, as it is required to pay a tax of two percent on all premiums, subject to certain deductions. We agree with the Tax Tribunal that petitioner is exempt from taxation on the subject property.
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Per Curiam.
Plaintiff Michael Muniga suffered serious and permanent injuries in an automobile accident on February 7, 1972. His automobile was a 1966 Buick LeSabre manufactured by defendant General Motors Corporation (GMC) and sold to him new by defendant P. L. Grissom & Son Buick, Inc. (Grissom). Plaintiff alleged that while driving southbound on Telegraph Road in Dearborn at a constant speed of approximately 40 m.p.h., his car accelerated suddenly to 60 to 70 m.p.h. He applied the brakes but could not stop the car. In an effort to slow his car, he struck the curb. The car struck another curb and came to rest on a small guardrail on the median. The car was dangling over the northbound lane for 15 to 20 seconds when it was hit by a northbound car.
Plaintiff brought a products liability action against defendants on July 18, 1974. In Count I, plaintiff alleged that GMC negligently designed the automobile by failing to provide adequate engine mounts, failing to provide limiting equipment that would prevent the engine from moving and opening the throttle in the event of an engine mount separation, failing to inspect and test the engine mounts, failing to ascertain the consequences of engine mount separation and failing to warn of defective engine mounts. Count I also alleged negligence by Grissom for failing to inspect for defects and in failing to warn. Count II alleged breach of implied warranty by both defendants due to defects in the engine mounts and lack of equipment to prevent movement of the engine. Defendants denied the material allegations of liability and asserted as affirmative defenses that plaintiff was contributorily negligent and that he had abused or misused the product. A jury trial resulted in judgments of no cause of action in favor of both defendants.
Plaintiff’s theory of the case was that the sudden acceleration was due to an engine mount failure that allowed the engine to rotate, opening the throttle. Defendants maintain that, at 40 m.p.h., insufficient torque was present so rotation of the engine would not occur if, in fact, the mounts had separated before impact through fatigue. Defendant also argued that the engine mounts fractured as a result of an impact in the accident — not through fatigue.
Plaintiff raises several issues on appeal. Plaintiff challenges the admissibility of evidence of certain tests performed by defendants’ expert witness.
The first test, which was performed for use in a different case, showed the effect of a frontal impact on engine mounts. For the test, a Buick 430 cubic inch engine from a Wildcat or Electra was placed into a chassis with no body, exhaust system, or fenders, and a 6,000-pound pendulum was swung to hit the front of the vehicle, resulting in a fracture of the engine mounts. High speed and regular speed cameras made films of this experiment. The engine mounts in this experimental vehicle were similar in configuration and were identical in mechanical properties to those in plaintiff’s 1966 LeSabre, but the mounts were not interchangeable because of differences in size and placement of the mounting hole. Plaintiff’s objection to admission of the film and testimony concerning the test was overruled. The witness compared photographs of stress marks on the rubber from the engine mounts from plaintiff’s car with those of the engine mounts fractured by the impact and with those separated by fatigue. The witness concluded that impact — not fatigue— caused separation of plaintiff’s engine mounts.
The admission of test results rests within the wide discretion of a trial court. Moldovan v Allis Chalmers Manufacturing Co, 83 Mich App 373, 384; 268 NW2d 656 (1978), Pohlod v General Motors Corp, 40 Mich App 583, 585; 199 NW2d 277 (1972). Experimental data are admissible if the tests from which the data are drawn involved conditions sufficiently similar to those involved in the particular case to assist the trier of fact in reaching its conclusions. Smith v Grange Mutual Fire Ins Co of Michigan, 234 Mich 119; 208 NW 145 (1926), Thorp v Dayton Tire & Rubber Co, 51 Mich App 514; 215 NW2d 600 (1974).
The trial court was acting within its discretion in admitting evidence of this test. The test was designed to show only the effect of impact-caused fracturing on the rubber in an engine mount. Defendants laid a proper foundation by showing that the engine mounts in the experiment and in plaintiff’s car had identical properties. One would expect the striations on the rubber in the test vehicle and in plaintiff’s car to form similar patterns if separated from the metal by impact. The differences between the patterns formed by impact and the patterns formed by fatigue were not subtle. The test in no way concerns the amount of force necessary to cause an engine mount to fracture, so the differences between the test vehicle and plaintiff’s automobile were immaterial.
The other test challenged on appeal was designed to measure the torque generated by driving in various conditions. Defendants’ expert witness obtained a car similar to plaintiff’s in all respects except it had no air conditioner and it was well-tuned. The left engine mount was unbolted to simulate plaintiff’s car, assuming its left engine mount had in fact been separated as alleged. The test was performed in July. The expert testified that poorer performance of the engine as a result of not being tuned or of cold weather would have generated less torque so that any differences between the road test and the actual case were biased in plaintiffs favor. The trial court admitted data and testimony regarding this test over plaintiffs objection.
As a result of this test, defendants’ expert concluded that 50 to 55 foot-pounds of torque resulted from driving the car at a constant rate of 40 m.p.h. The car was also driven with sudden acceleration to determine the torque necessary to lift the unbolted engine. The witness found this to be aproximately 450 foot-pounds and indicated that this amount of torque was generated when accelerating suddenly from a stop to 10 m.p.h. The expert witness indicated sufficient torque to lift the engine could not be generated when the car was traveling at a constant speed of 40 m.p.h.
The trial court did not abuse its discretion in admitting the evidence to show the impossibility of plaintiffs theory of the accident. The foundation was more than adequate to establish the validity of the test.
Plaintiff also alleges error in the trial court’s refusal to admit evidence of GMC’s recall of 1965 and 1967 Buick Electras and Wildcats. The purpose of this recall was to install restraining cables that would prevent engine rotation in the event of a motor mount separation. Defendants’ expert, who testified regarding impact tests performed on Electras and Wildcats, stated that mounts from the 1967 models had the same composition and exhibited identical wear characteristics to the mount used in plaintiffs car. The mounts were not, however, interchangeable due to differences in size and placement of holes. Moreover, the various parts in the engine compartment of the test vehicles and plaintiffs car were arranged substantially differently.
After arguments on defendants’ motion to exclude evidence of the recall, the trial court found such evidence to be insufficiently relevant to outweigh the possible prejudice and confusion that could result from admitting evidence of a recall of a different model car.
As a general rule, a trial court has broad discretion in ruling on the relevancy of evidence submitted at trial, Wilson v W A Foote Memorial Hospital, 91 Mich App 90, 96-97; 284 NW2d 126 (1979), Orquist v Montgomery Ward, 37 Mich App 36, 41; 194 NW2d 392 (1971). This Court will not reverse a trial court’s decision absent an abuse of discretion. Wilson, supra, 97.
MRE 401 defines relevant evidence as that which has any tendency to make "the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”. Plaintiff sought to offer the recall evidence to show that the motor mounts on plaintiffs car, like the motor mounts recalled, could separate "spontaneously, go into full throttle” and create a hazard to the public.
Evidence of the recall would have no relevance as to whether a separated engine in plaintiffs car could rotate, thus opening the throttle. The potential for rotation is determined not only by the engine mounts, but also by the parts adjacent to and adjoining the engine itself. Where testimony established that the recalled models had substantially different engine compartment layouts than plaintiffs model, evidence of the recall would have no bearing on the ability of plaintiff’s engine to rotate and go into full throttle.
Plaintiff also sought to prove, however, that the engine mounts on his car had the potential for separating through wear and fatigue, rather than only through impact. Evidence of the recall of similar engine mounts would be relevant in establishing this fact. This fact was not, however, disputed at trial, for defendant’s expert admitted that plaintiff’s motor mount could, in fact, separate through fatigue. The disputed evidence had no probative value with respect to the probability of preaccident separation of motor mounts. We therefore find no reversal error in excluding such evidence under MRE 403, which permits relevant evidence to be excluded on grounds of prejudice, confusion or waste of time.
Defendant also raises several objections to the instructions as given. No specific objections were made to the instructions on weight and exposure to known risks and no manifest injustice has been shown, so any error that might be alleged in these instructions is not properly before this Court. Javis v Ypsilanti Board of Education, 393 Mich 689; 227 NW2d 543 (1975), Reed v Stretton, 69 Mich App 519, 523; 245 NW2d 117 (1976). The instruction that there is no duty to warn of a general possibility of danger, when read in context with the other instructions on burden of proof, is not an inaccurate statement of the law. Fisher v Johnson Milk Co, Inc, 383 Mich 158, 161; 174 NW2d 752 (1970). Instructions on misuse and abuse of a product were supported by evidence that plaintiff himself had installed a rebuilt carburetor on his automobile, had experienced carburetor trouble just before the accident and was driving the car to have his carburetor replaced when the accident occurred. There was no reversible error in instructing on these defense theories.
Plaintiff also argues that the trial court erred in instructing the jury on contributory negligence. Plaintiff made no specific objections to instructions on contributory negligence. As the conduct of the plaintiff, which defendant contended was negligent and proximately contributed to the accident, would have been the sole proximate cause of the accident, such an erroneous instruction would not have affected the jury’s verdict and must be regarded as harmless. Moore v Foster, 96 Mich App 317; 292 NW2d 535 (1980).
Affirmed. Cost to defendants. | [
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M. J. Kelly, J.
On February 28, 1979, defendant, Otis Dumas, was convicted by a jury of breaking and entering, contrary to MCL 750.110; MSA 28.305. From this conviction he appeals of right and raises two issues.
The conviction arose out of an incident occurring in a Kentwood hotel room occupied by Adrian Licciardi and Robert Mitchell in the early morning hours of November 5, 1978. Licciardi testified that at about 6 a.m. he observed a person enter the room, look through some clothing and remove his (Licciardi’s) wallet. Licciardi then jumped up from his bed, which frightened the intruder and caused him to drop the wallet. The intruder then ran out of the room. Licciardi and Mitchell, who also awoke in time to see the intruder run from the room, gave immediate chase but were unable to catch him. They then called police. Both men testified they saw defendant’s face from a distance of 5 to 10 or 15 yards respectively.
Upon his arrival at the hotel, Kentwood police officer Thomas Zimmerson was directed by Licciardi and Mitchell to a green and yellow station wagon, the only vehicle in the hotel parking lot without dew on it. The car was also found to have a warm engine compartment and the keys were in the ignition. Zimmerson checked the vehicle’s registration and was informed that it belonged to the defendant. Zimmerson then summoned a detective Harrington to the scene. While at the hotel, Harrington conducted a photographic identification, during which Licciardi and Mitchell picked defendant out of seven or eight pictures. Licciardi described the man as wearing blue jeans, a brown turtle neck sweater and a blue jean jacket.
Shortly after the identification, defendant, then dressed in a pair of slacks and button-down sweater, walked around the corner of the building. Both Licciardi and Mitchell immediately identified defendant as the man who had entered their room.
During trial, defense counsel made and renewed a motion for a mistrial, arguing that the photographic identification had impermissibly tainted Licciardi’s in-court identification of defendant. The court then ordered Licciardi recalled for testimony on the independent basis of the indentification. Licciardi testified, out of the jury’s presence, that he was initially undecided between two of the photographs, and that the photograph of the defendant assisted him in being able to identify defendant at the scene and at trial. On further questioning by the prosecutor, Licciardi again admitted that the photograph helped him make the identification at the scene. However, he also claimed that his in-court identification did not depend on the photograph.
On appeal defendant argues that the trial court reversibly erred in permitting Licciardi and Mitchell to make in-court identifications of him, following an allegedly improper photographic identification. Defendant urges that his known ownership of the green and yellow station wagon and the circumstances of the breaking and entering required his formal arrest and a corporeal line-up for identification.
Photographic showups, due to their potential effect on eyewitness identifications, have been strictly limited in their application. In People v Franklin Anderson, 389 Mich 155, 186-187; 205 NW2d 461 (1973), the Supreme Court established two basic rules governing such investigatory procedures:
"1*. Subject to certain exceptions, identiñcation by photograph should not be used where the accused is in custody.
"2. Where there is a legitimate reason to use photographs for identiñcation of an in-custody accused, he has the right to counsel as much as he would for corporeal identiñcation procedures.” (Emphasis in original; footnotes deleted.)
See, also, People v Jackson, 391 Mich 232; 217 NW2d 22 (1974), and People v Currelley, 99 Mich App 561; 297 NW2d 924 (1980). Subsequent panels of this Court have applied more restrictive limitations on the use of photographic showups, by prohibiting their use in cases where a suspect is "readily available” for or can be "readily produced” at a corporeal lineup. People v McNeill, 81 Mich App 368; 265 NW2d 334 (1978), People v Smalls, 61 Mich App 53; 232 NW2d 298 (1975), People v Beasley, 55 Mich App 583; 223 NW2d 77 (1974).
Although various opinions of this Court have differed as to what circumstances will constitute reasonable availability for appearance at a corporeal lineup, there is at least uniform agreement that probable cause to arrest is sufficient. See People v Hoerl, 88 Mich App 693, 700, fn 4; 278 NW2d 721 (1979), and People v McNeill, supra, 377, finding defendant not readily available where "the police had no legal means * * * to force defendant to participate in the corporeal lineup”.
If the facts and circumstances surrounding a criminal act would lead a reasonably prudent person to believe a felony was committed and that a certain individual was the perpetrator of the offense, probable cause to arrest exists. People v Lynn, 91 Mich App 117, 122; 283 NW2d 664 (1979), lv gtd 407 Mich 902 (1979), People v Thatcher, 83 Mich App 527; 269 NW2d 210 (1978). In the instant case, at the time of the photographic identification session, the extent of information linking defendant to the breaking and entering was the presence of his car in the motel parking lot, a warm engine, and the fact that the car keys were in the ignition. The witnesses’ limited descriptions of the intruder were also provided. These facts do not suggest probable cause for arrest and thus would not mandate defendant’s presence at a corporeal lineup. Additionally, defendant was not subject to the elements of police control found to constitute ready availability in People v Smalls, supra (defendant released on bond for a pending similar offense) and People v Beasley, supra (defendant out on bond).
We decline to extend the rule of Franklin Anderson to the pre-custody, pre-interrogation, mere suspicion phase of defendant’s investigation. As noted in People v Lee, 391 Mich 618, 625; 218 NW2d 655 (1974):
"It is not feasible to require appointment of counsel in cases of pre-custody photographic showups where there is no detention of the defendant since under such a rule each photograph arguably depicts a suspect and therefore each person whose photograph appears in the photographic display, or perhaps even the 'mug book’ would require the representation of counsel. That would be impossible and absurd.”
Absent probable cause to arrest or the less restrictive incidences of police control found in Smalls and Beasley, the photographic showup herein did not impermissibly point to the defendant as perpetrator of the breaking and entering. We thus hold that defendant was not the subject of an impermissible photographic showup.
Defendant next urges that resentencing is required because he was absent from an in-chambers sentencing conference between defense counsel and the trial judge. He argues that the conference effectively denied him the right to allocution and the right to be present at all critical stages of the proceedings below. GCR 1963, 785.8(2); Const 1963, art I, § 20; MCL 768.3; MSA 28.1026. We find no error here, however, because "[tjhere is no requirement that a defendant be present during an in-chambers discussion with counsel regarding the trial court’s sentence”. People v Worden, 91 Mich App 666, 685; 284 NW2d 159 (1979). See People v Briggs, 94 Mich App 723, 727; 290 NW2d 66 (1980), lv gtd 408 Mich 958 (1980). The record also discloses that defendant was afforded an opportunity to personally address the court prior to its imposition of sentence. Defendant chose not to exercise his right to speak and may not now argue as error his decision to forego allocution. People v Brown, 96 Mich App 565; 293 NW2d 632 (1980), People v Richards, 95 Mich App 433, 438; 291 NW2d 69 (1980).
Affirmed.
We also note with approval the recent decision in People v Erwin Wilson, 95 Mich App 93, 99-100; 290 NW2d 89 (1980), as a case bearing substantial factual similarity to the instant case. Despite a finding in favor of probable cause to arrest, the Wilson Court held defendant’s photographic showup not to constitute reversible error:
"An extension of the Franklin Anderson rule to require arrest and corporeal lineup in a case such as this would pressure police, who wish to have their circumstantial evidence against a suspect confirmed by an eyewitness to the crime, to arrest the suspect as soon as they estimate that their evidence provides probable cause to do so. This pressure would have the highly undesirable effect of increasing the incidence of premature and unjustified arrest. Persons suspected of involvement in crime are the obvious victims of such an increase; even in cases in which there is probable cause to arrest, photographic showups may prove the suspicion to be misplaced and thus save the suspect from the inconvenience of arrest. The injury to the public’s interest in the apprehension of offenders is also considerable. An arrest made upon insufficient cause can lead to the permanent suppression of valuable evidence. The suspect, when released, will be forewarned and is likely to remove the evidence or himself from the jurisdiction.
"Suspects might fear that, if the authorities are free to use photographic showups when the subject of an investigation could be arrested and the more reliable corporeal lineup employed, arrests will be postponed in hope of gaining an identification from a suggestive photographic array. This fear rests upon a very insubstantial foundation. The suggestive array is itself violative of due process, and every defendant has a remedy for such improper procedures. See Simmons v United States, 390 US 377; 88 S Ct 967; 19 L Ed 2d 1247 (1968), and Franklin Anderson, supra, 167-170. In any event, there is in this case no sign of improper police activity that would call the photographic showup into question.” (Footnote omitted.) | [
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Per Curiam.
On May 16, 1980, petitioners, Barbara Jo Kinsella and Rebecca Sue Kinsella (hereafter appellants), filed a petition against the estate of Patrick Edward Kinsella, deceased, contending that they were legitimate heirs of the decedent. After a hearing held on May 27, 1980, the Chippewa County Probate Court held that appellants were not heirs of Patrick Kinsella. Appellants appeal as of right.
The record discloses that Patrick Edward Kinsella, then a sailor on a Great Lakes boat, and Rose Ann McMillan were married on May 15, 1967, after she told him she was pregnant and that he was responsible for her pregnancy. In the fall, it became evident, by reason of her doctor’s advice, that the birth would occur earlier than anticipated. This led to a discussion between Patrick and Rose Ann as to whether he was the father. On November 21, 1967, female twins were born to Rose Ann, the birth certificates indicating their names were Barbara Jo Kinsella and Rebecca Sue Kinsella.
On November 1, 1967, before the twins’ birth, Patrick Kinsella filed a sworn complaint for annulment of the marriage. In his complaint, Patrick alleged, among other things, that "defendant [Rose Ann] was in fact pregnant but admitted on or about the 1st day of June, 1967, that said pregnancy was not related to this plaintiff’.
On January 31, 1968, an attorney filed an appearance in the annulment proceedings on behalf of Rose Ann. On June 14, 1968, after Patrick and his mother, Myrtle Kinsella, testified at a hearing, a judgment of annulment of the marriage was awarded in which no reference was made to the twins. The judgment was approved by counsel for Rose Ann. Patrick remarried and three children were born of that union: Keith, Kenneth, and Kelly Kinsella, who are the appellees herein. Patrick died on August 29, 1979, at age 38.
In decedent’s [Patrick] probate proceedings, the twins petitioned the probate court to find that they are heirs at law of Patrick. On May 27, 1980, a visiting probate judge conducted a hearing and determined the sole heirs of Patrick Kinsella, deceased, to be Keith, Kenneth, and Kelly Kinsella.
The trial court held that appellants were prevented from offering evidence that they are heirs of Patrick Kinsella by virtue of the annulment judgment awarded Patrick against Rose Ann. Counsel for appellees says that the underlying basis for the annulment awarded Patrick was his claim that Rose Ann admitted to him prior to birth of the twins that he was not the father. For whatever reason, Rose Ann and her counsel did not contest the annulment. Thus, appellees claim that the annulment judgment is res judicata regarding whether Patrick was the father of the twin girls.
In resolving this matter, the starting point is § 111, subds (2), (3) of the Revised Probate Code of 1978, which provides:
"(2) If a child is born or conceived during a marriage, both spouses are presumed to be the natural parents of the child for all purposes of intestate succession. A child conceived following artificial insemination of a married woman with the consent of her husband shall be considered as their child for all purposes of intestate succession. Consent of the husband is presumed unless the contrary is shown by clear and convincing evidence. If a man and a woman participated in a marriage ceremony in apparent compliance with the law before the birth of a child, even though the attempted marriage is void, the child is considered to be their child for all purposes of intestate succession.
"(3) Only the person presumed to be the natural parent of a. child under subsection (2) may disprove any presumption, that may be relevant to the relationship, and this exclusive right to do so terminates upon the death of the presumed parent.”
Patrick Kinsella attempted to disprove the presumption that he was the twins’ father by bringing an action for annulment of the marriage. As the record indicates, the twins were not represented in the annulment proceedings. This is not unusual; the paternity act prescribes a procedure for determining filiation and requiring support where it exists. The statute does not require a guardian and separate representation for the child in a paternity case. The mere fact that a child is not separately represented in a contested annulment case or a contested paternity proceeding does not necessarily mean that the outcome of the case has no effect in a subsequent proceeding in which the child seeks to inherit as an heir at law from a deceased father.
However, a parent does not have power, merely by virtue of the parental relationship, to waive, release, or compromise claims of his or her child. In the within case, there was not a contested trial. While counsel for the mother approved the annulment judgment, that stipulation did not, and could not, under Tuer v Niedoliwka, deprive the twins of an opportunity for a full hearing on the merits to decide whether Patrick Kinsella was their father.
Consequently, we hold that the trial court erred in ruling that, in the 1980 determination of heirs hearing, the annulment judgment precluded admission of evidence that Patrick was the father of the twins. On the contrary, the 1968 annulment judgment does not preclude evidence on the paternity issue, and the transcript of the annulment hearing and the annulment judgment may be admitted as relevant evidence in the determination of heirs hearing.
Appellees contend that the mother "defaulted” in the annulment proceedings. As indicated, an attorney filed an appearance on her behalf and approved, in writing, the annulment judgment. Her attorney’s approval was not limited as to form. This was not a default with the connotation the appellees attribute to it.
Appellees also characterize the annulment judgment as res judicata of the determination of heirs issue. Res judicata requires judgment upon the same matter at issue and between the same parties or their privies. It is clear that different parties were involved in the annulment case than in the determination of heirs hearing in the probate proceedings. Where there is no identity of parties, res judicata does not apply. Neither does the doctrine of collateral estoppel apply here so as to prevent the twins from making a showing that Patrick was their father.
It may also be argued that if the twins had been represented in the 1968 annulment proceeding, they successfully could have objected "to the admission of the deceased’s testimony as to non-access”. However, when the annulment case was commenced, there were no children to be represented, as they were not yet born. As indicated, in his complaint in the annulment proceedings, Patrick Kinsella alleged that Rose Ann McMillan admitted to him prior to the twins’ birth that he was not the father. Thus, the issue in the annul ment case was whether Rose Ann fraudulently induced Patrick to marry her by misrepresenting to him that he was the father of the child (children) to be born by her. The legal theory of an annulment is that no marriage ever existed because there was fraud in the inception.
Patrick did not oifer proof of non-access to Rose Ann in the annulment hearing. Rather, his testimony was limited to her alleged admission that he was not the father. Thus, appellants assert that the presumption of legitimacy was never disproved by the deceased during his lifetime in a manner binding upon the twins. When, in 1967, Patrick Kinsella decided, whether correctly or incorrectly, that he had not made Rose Ann pregnant, the options open to him were limited. The most obvious remedy was the annulment proceeding he selected. A fair reading of his sworn complaint compels the conclusion that he sought to disprove any presumption that he was the father to be.
The fact that Rose Ann did not force a contested trial of the issue in the annulment case cannot be used as the basis for an inference that Patrick failed to disprove paternity under MCL 700.111(3); MSA 27.5111(3). To date, there simply has not been a contested trial on the question of whether Patrick was the twins’ father.
In light of the foregoing analysis, we cannot conclude that, as a matter of law, the twins are heirs at law of Patrick Kinsella. Even though the date is late, we believe the fair thing for all concerned would be a trial on the merits regarding paternity. We, therefore, set aside and reverse the trial judge’s ruling that the annulment judgment requires a finding that the twins are not heirs at law of Patrick Kinsella and remand the case to the trial court for a trial on the issue of whether the twins are heirs at law of Patrick Kinsella consistent with this opinion. In that trial, evidence of the record of the annulment proceeding will be admissible, including testimony as to Rose Ann’s directions to her attorney, her motives, and her understandings. In addition, all other evidence, including hospital and medical records, relevant and material to the issue, is admissible.
Reversed and remanded to the Chippewa County Probate Court.
Probate Judge Jack Church properly disqualified himself because he had acted as Rose Ann McMillan’s attorney in the annulment case.
MCL 700.111(2), (3); MSA 27.5111(2), (3).
MCL 722.711-722.730: MSA 25.491-25.510.
Tuer v Niedoliwka, 92 Mich App 694. 698-699; 285 NW2d 424 (1979).
Id.
Curry v Detroit, 394 Mich 327, 331; 231 NW2d 57 (1975); Ward v DAIIE, 115 Mich App 30, 32; 320 NW2d 280 (1982).
Jordan v C A Roberts Co, 379 Mich 235, 243; 150 NW2d 792 (1967).
See Anno: 78 ALR3d 846, 850.
Romatz v Romatz, 355 Mich 81; 94 NW2d 432 (1959); Gard v Gard, 204 Mich 255; 169 NW 908; 11 ALR 923 (1918). | [
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Per Curiam.
Defendant appeals as of right from his September 26, 1980, jury conviction of delivery of cocaine. MCL 333.7401, subds (1) and (2)(a)(iii); MSA 14.15(7401), subds (1) and (2)(a)(iii). He was sentenced to life probation and appeals as of right.
Defendant first argues that the controlled substances provisions of the Public Health Code violate the title-object clause of our state constitution. This argument, however, has been rejected by this Court. People v Ensign (On Rehearing), 112 Mich App 286; 315 NW2d 570 (1982); People v Trupiano, 97 Mich App 416; 296 NW2d 49 (1980), lv den 409 Mich 895 (1980).
Similarly, there is no merit to defendant’s argument that the information was inadequate because it did not name the party to whom he was alleged to have delivered cocaine. We note that the defendant failed to object to this alleged defect in the information in a timely manner. People v O’Brien, 60 Mich 8; 26 NW 795 (1886). Further, this issue was decided in a manner adverse to his position in People v Carriger, 37 Mich App 605; 195 NW2d 25 (1972), lv den 388 Mich 812 (1972). Defendant could have demanded a bill of particulars had he wished.
Defendant next claims that he was prejudiced at trial when evidence regarding two similar offenses was admitted. The record does not reflect that defendant objected to this evidence, but we have considered this issue nonetheless.
In People v Nieves, 92 Mich App 613; 285 NW2d 389 (1979), this Court enunciated a three-part test to be applied when ascertaining whether error occurred in the admission of similar act testimony. First, substantial evidence must be presented to show that the defendant had committed the prior offenses; second, there must be some special circumstances of the prior bad acts that tended to prove one of the statutory items; and third, the particular statutory item must be material to the case. To these three factors must be added the requirement that the probative value of the similar act testimony must outweigh its prejudicial effects. People v Duncan, 402 Mich 1; 260 NW2d 58 (1977).
In the present case, substantial evidence was presented to establish that defendant committed the prior offenses. With regard to the second part of the test, the statutory item established by this evidence was "knowledge”, that is, the prior sales tended to establish that defendant was a heroin dealer and not merely a narcotics user. Nieves, supra, 616-617. Further, evidence pertaining to defendant’s intent or knowledge was a material issue in this case. Finally, upon consideration of the whole record, we cannot say with firm conviction that the trial judge abused his discretion in admitting this evidence; that is, its prejudicial nature does not outweigh its probative value.
We also find to be without merit defendant’s argument that the failure to mention the principal’s name in the information on which he was convicted, on a theory of aiding and abetting, requires reversal. See People v Lamson, 44 Mich App 447; 205 NW2d 189 (1973), lv den 389 Mich 783 (1973). The distinction between an aider and abettor and a principal has been abolished in this state. MCL 767.39; MSA 28.979. Therefore, Mulligan v Commonwealth, 84 Ky 229; 1 SW 417 (1886), is distinguishable. A prosecutor need not set forth his theory of law in the information and if a criminal defendant wishes to ascertain the name of the principal, he may request a bill of particulars. Carriger, supra.
Defendant next argues that error occurred because his counsel’s argument to the jury amounted to a confession of guilt. The record discloses that defense counsel admitted defendant’s participation in two previous deliveries of controlled substances but that he did not concede defendant’s involvement with the instant one. While there are certain hazards to admitting the familiarity of a defendant with the type of crime with which he is charged, this strategy is effective to neutralize the damaging effect of a prosecutor’s evidence in some cases. Intentionally bringing up past criminal convictions does not make counsel ineffective and, in fact, it is a legitimate trial tactic. People v Armstrong, 100 Mich App 423; 298 NW2d 752 (1980), lv den 412 Mich 865 (1981). Although the tactic was not effective in this case, this Court will not substitute its judgment for that of trial counsel in matters of trial strategy. People v Lotter, 103 Mich App 386; 302 NW2d 879 (1981), lv den 412 Mich 852 (1981).
Defendant next claims that the prosecutor impermissibly shifted the burden of proof when he commented during closing argument to the jury on defendant’s failure to present a corroborating accomplice witness.
The witness in question, one Evans, had pled guilty and was awaiting sentence at the time of this trial. The record is silent as to whether, if he had been called by either side, he would have claimed his Fifth Amendment privilege. Having in mind the possibilities of a withdrawal of his guilty plea, or a successful appellate challenge to his conviction, there is reason to believe that he would have invoked his Fifth Amendment privilege if called.
It would have been error for either the prosecutor or defense counsel to call Evans as a witness under such circumstances. People v Giacalone, 399 Mich 642; 250 NW2d 492 (1977). See also People v DeGoenaga, 202 Mich 503; 168 NW 436 (1918). A ^ prosecutor should not denigrate an opponent for failure to do something which would have been improper if done. However, the record indicates that defendant failed to object to the comments of the prosecutor during closing argument. For this reason, any error has been waived. People v Clemons, 91 Mich App 68; 282 NW2d 838 (1979), remanded on other grounds 407 Mich 939 (1979).
Nor can we. agree with defendant’s argument that his counsel was ineffective because he did not object to the similar acts testimony, because he did not object to the form of the information, and because he did not object to the prosecutor’s statement in his closing argument that the defendant could have called a corroborating witness. The similar acts evidence properly was admitted into evidence and the information was not defective. Further, under the standard of People v Degraffenreid, 19 Mich App 702; 173 NW2d 317 (1969), we find it not reasonably likely that defendant would have been acquitted if defense counsel had objected to the prosecutor’s improper argument about defendant having failed to call the accomplice as a witness.
Affirmed.
We do realize that certain 19th Century cases in this state require that the person to whom contraband is furnished be identified in the information. E.g., People v Keefer, 97 Mich 15; 56 NW 105 (1893); People v Heffron, 53 Mich 527; 19 NW 170 (1884); People v Minnock, 52 Mich 628; 18 NW 390 (1884). However, they have not been relied on since Brown v Hadwin, 182 Mich 491; 148 NW 693 (1914). Further, we note that leave to appeal was denied in Carriger.
As such, this is an exception to the general rule announced in People v Jackson, 108 Mich App 346, 351-352; 310 NW2d 238 (1981). | [
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Per Curiam.
This matter is before us on appeal by leave granted, arising out of plaintiffs claim for damages for mental anguish resulting from alleged breach of contract and breach of implied warranties in the sale of a new home.
In 1968, defendant Broadland Builders, Inc., entered into a contract with plaintiff, Barbara Groh, and her husband, for the construction of a new home, including a septic tank disposal system. The structure was completed and occupied by plaintiff and her family in the following year.
Four years later the septic system began to malfunction and subsequently plaintiff brought an action against defendant for breach of contract, breach of implied warranty, negligence and fraud, and seeking to recover, in part, exemplary damages and damages for mental anguish.
At trial, plaintiff withdrew the fraud count and the trial court directed a verdict in defendant’s favor on the breach of contract and breach of implied warranty counts. The jury returned a verdict of no cause of action against plaintiff on the remaining negligence count.
On July 20, 1978, this Court reversed the trial court’s order denying plaintiff’s motion for a new trial and remanded this case for a new trial on plaintiff’s breach of contract and breach of implied warranty claims.
Defendant then filed a motion to strike any allegations in plaintiff’s complaint regarding exemplary or mental anguish damages associated with the breach of implied warranty or breach of contract claims on the ground that such damages are not recoverable in such actions as a matter of law. The trial court granted defendant’s motion, striking allegations pertaining to exemplary damages, but denied the motion with respect to mental anguish damages. Defendant’s subsequent motion for rehearing and motion for summary judgment as to the mental anguish damages were also denied.
This Court then granted defendant’s application for leave to appeal the trial court’s orders on January 20, 1981.
We note at the outset that plaintiff makes no claim of illness or physical injury arising out of defendant’s alleged breach of contract or implied warranty. Thus, plaintiff has not met the threshold for recovery of damages for mental anguish, either as "parasitic damages” incident to immediate physical injury, or as a mental disturbance resulting in immediate physical injury. See Daley v LaCroix, 384 Mich 4; 179 NW2d 390 (1970); Toms v McConnell, 45 Mich App 647; 207 NW2d 140 (1973). Plaintiff seeks to recover for mental anguish as a wholly separate and independent item of damages attributable to defendant’s breach.
Since plaintiff’s claim is premised on the dual theories of breach of contract and breach of implied warranty, we must perforce consider whether independent damages for mental anguish may be recovered under either theory.
The general rule is that damages recoverable for breach of contract are those that arise naturally from the breach or those that were in the contemplation of the parties at the time the contract was made. Hadley v Baxendale, 9 Exch 341; 156 Eng Rep 145 (1854); 5 Corbin, Contracts, § 1007, pp 70-73; Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401; 295 NW2d 50 (1980).
"Application of this principle in the commercial contract situation generally results in a limitation of damages to the monetary value of the contract had the breaching party fully performed under it. Thus, it is generally held that damages for mental distress cannot be recovered in an action for breach of a contract.” Kewin, supra, pp 414-415.
In Jankowski v Mazzotta, 7 Mich App 483; 152 NW2d 49 (1967), and Caradonna v Thorious, 17 Mich App 41; 169 NW2d 179 (1969), this Court held that damages for mental anguish may not be recovered by a homeowner for the breach by a contractor of a commercial contract to construct a home. The Court in Jankowski specifically considered and distinguished those breach of contract cases which have allowed damages for mental anguish, as exemplified by Stewart v Rudner, 349 Mich 459; 84 NW2d 816 (1957), from situations involving breach of contract to construct a home. In Jankowski, supra, p 487, this Court stated:
"[I]t is difficult to see how the appellants cannot be fully compensated by allowing only for pecuniary losses. * * * [Tjhe alleged breaches of contract could be corrected by reworking or refinishing, and the appellants could be fully compensated without resort to damages for mental anguish. The distinction between this case and the cases which allowed recovery for mental anguish for breach of contract is that here the loss involved only the pecuniary loss of having to have the job done over, while in the cases allowing recovery the situation could never be adequately corrected. In cases allowing such recovery the court could not give life to a dead child, nor could the dignity of a spoiled funeral be restored. In every case of a contract breach, there is bound to be vexation and annoyance to one or both of the contracting parties. Whether such disappointment is real or imaginary, it is the natural result of a breach of contract. Recovery for such mental anguish, however, has been properly circumscribed within rather narrow limits by the precedents and rules of law applicable in Michigan. ” (Emphasis added.)
The present complaint contains no factual allegations from which a trier of fact could reasonably infer that damages for mental anguish resulting from possible breach of contract were within the contemplation of the parties at the time the contract was made.
Turning to plaintiffs claim for recovery of damages for mental anguish due to defendant’s breach of implied warranty, we note that generally recovery under an implied warranty theory has been predicated on both principles of contract and concepts of tort, originally developing under the law relating to sales and the more recently recognized field of product liability.
"The substitution of the doctrine of implied warranty of fitness for that of caveat emptor in the field of personal property has been firmly imbedded in our jurisprudence since the Uniform Sales Act and the recent adoption of the Uniform Commercial Code. Until recently, however, the doctrine of caveat emptor has continued to be almost universally applied to the sale of real property, see 78 ALR2d 446 (Annotation). However, in the past ten years, eight states have moved away from the theory of caveat emptor and have adopted some form of implied warranty in the sale of new family dwelling houses.” Weeks v Slavik Builders, Inc, 24 Mich App 621, 624; 180 NW2d 503 (1970).
As noted at 67 Am Jur 2d, Sales, § 744, p 963:
"The broad and comprehensive rule as to the damages recoverable for breach of warranty has been that the buyer was entitled to recover from the seller only the damages which were reasonably supposed to have been contemplated or foreseen by the parties at the time the warranty was made, as the probable result of the breach. A more detailed and elaborated rule which has often been stated was that the damages recoverable by the buyer for breach of warranty should be such as might fairly and reasonably be considered either arising naturally, or according to the usual course of things, from such breach of warranty itself, or such as might reasonably be supposed to have been in the contemplation of both parties, at the time they made the warranty, as the probable result of its breach.” (Footnotes omitted.)
This Court’s decision in Weeks, supra, affirmed at 384 Mich 257; 181 NW2d 271 (1970), extended the concept of an implied warranty of fitness from the field of personal property to the purchase of new homes in Michigan. In Weeks, this Court particularly cited Schipper v Levitt & Sons, Inc, 44 NJ 70; 207 A2d 314 (1965), which allowed a claim for personal injury based on breach of implied warranty of fitness of purpose incident to the purchase of a new home.
As previously noted, however, there is no claim of physical injury to any person in the present case nor is there any fact alleged from which it can reasonably be inferred that damages for mental anguish were within the contemplation of the parties at the time of the contract. Plaintiff has cited no authority which would support a holding on our part that mental anguish damages may be recovered under a theory of breach of implied warranty when such damages would not otherwise be compensable for breach of contract, Jankowski, supra, or tort, Daley, supra. Nor are we persuaded that the criterion for recovery of damages for mental anguish under a theory of breach of implied warranty should be extended beyond those well-established parameters under theories of contract or tort.
We recognize that in B & M Homes, Inc v Hogan, 376 So 2d 667 (Ala, 1979), cited by plaintiff, the court held that the plaintiff could recover damages for mental anguish due to the defendant builder’s breach of contract to build plaintiffs home, as well as for breach of implied warranty to build the home in a workmanlike manner.
On the other hand, in Rogowicz v Taylor & Gray, Inc, 498 SW2d 352 (Tex Civ App, 1973), the court held that mental anguish damages were not recoverable, as a general rule, in an action for breach of contract in the construction of a new home, nor were such damages recoverable under a theory of breach of implied warranty.
We are not convinced that a contract for the construction of a home is of any more personal nature than a contract for payment of disability income protection insurance, Kewin, supra, nor that departure from this Court’s previous decisions in Jankowski, supra, and Caradonna, supra, is either proper or wise. Accordingly, we conclude that plaintiffs claims for damages for mental anguish should be dismissed.
Reversed. | [
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D. F. Walsh, P.J.
Plaintiff, a real estate broker, brought a suit for a portion of the commission paid to defendant Preferred Properties, Inc., for the sale of certain apartment buildings. Plaintiff appeals the trial court’s entry of summary judgment in favor of defendants.
Defendants Frederick Poel and Constance Withey owned the Hillcrest apartment complex and a house, both located in Wyoming, Michigan. On October 4, 1976, they listed this property for sale with Preferred Properties, Inc. The listing agreement provided for a 7% broker’s commission. Preferred then filed the agreement with the Grand Rapids Real Estate Board Multiple Listing Service which sent a copy to all board members, including plaintiff. Preferred also filed a statement with the board specifying that:
"[Preferred Properties] shall split commissions on cooperative sales with other members of [MLS] on the following basis: 45% to the listing office 55% to the selling office.”
Subsequent to the listing of the property, two brokers produced potential buyers who made offers to the owner. On November 4, 1976, Richard Grover, through Withey Real Estate, Inc. (controlled by Constance Withey and her husband, Lewis), offered to pay the sellers’ price but not on the terms of cash with "equity out”. Grover presented the financing arrangement of $70,000 down and the balance to be paid in annual installments of $34,000 at a 10% interest rate. On the following day, the property owners extended a counteroffer which stated that the broker had until 10 p.m. on November 11, 1976, to obtain acceptance.
On November 6, 1976, plaintiff’s client, Mr. and Mrs. Henry Sportel, offered to purchase the property for $350,000. This offer was rejected, and on November 10, 1976, the Sportels offered to buy the real estate at both the sellers’ price and payment terms. This second offer was also rejected.
At 10 a.m. on November 11, 1976, Grover accepted the owners’ counteroffer. The sale was closed on December 16, 1976, and a commission of $25,250 was paid to Preferred. As the selling office, Withey Real Estate received 55% of this sum.
On January 3, 1977, plaintiff filed a complaint against defendants. An amended complaint, filed on February 21, 1978, consisted of eight counts. Plaintiff’s claims for a portion of the commission paid to Preferred were based on express contract (Count I), conspiracy (Count II), unjust enrichment (Count III), and an implied-in-fact contract (Count IV). Plaintiff also alleged a violation of the National Association of Realtors’ Code of Ethics (Count V), conspiracy to deprive it of a lawful commission (Count VI), breach of fiduciary duties (Count VII), and conspiracy to violate the fiduciary duties (Count VIII). A second amended complaint, filed in July, 1978, included no substantive changes. On November 17, 1978, the trial court granted defendants’ motion for summary judgment on all eight counts in the complaint.
Plaintiff first argues that the trial court erred in ruling that the breach of contract allegation in the complaint (Counts I and II) did not state a claim upon which relief could be granted. The alleged express contract between plaintiff and Preferred is contained in defendant’s letter providing for the split of the commission between the "selling office” and the "listing office”. Plaintiff claims that the term "selling office” means any brokerage firm which produces the first ready, willing, and able buyer. In support of its contention, plaintiff cites the listing agreement between the property owner and the listing broker which reads as follows:
"If during the listed period, the property is sold by you or me or anyone else, or if you, or any member of the MLS [Grand Rapids Multiple Listing Service] produce a purchaser ready, willing and able to purchase the property, or within 6 months after expiration of said period a sale is made to any person to whom the property has been shown during the listed period by you or me or anyone else, I agree to pay you a commission of 7% of the sales price.”
Plaintiff claims that it produced the first purchaser ready, willing, and able to purchase and is entitled, therefore, to a share of the commission as the "selling office”. We disagree.
Under the terms of the listing agreement, the property owner agreed to pay a single commission to the listing broker at a predetermined amount. The commission was to be paid upon the occurrence of any of the following events: (1) the property is sold by the listing broker, property owner, or "anyone else”, or (2) the listing broker or any other broker produces a purchaser ready, willing, and able to purchase, or (3) within the six months after the expiration of the listing period, the prop erty is sold to anyone who was shown the real estate during that period.
The events which trigger the payment of a commission are separated by the conjunction "or”. The language is clearly in the alternative. It was certainly never within the contemplation of any party that the property owner was agreeing to pay more than one commission for the sale of the property. A commission was to be paid if the property was sold. Only if the seller refused to sell without justification was a commission to be paid to the broker for producing a purchaser ready, willing, and able to purchase. Just as the listing broker could not obtain more than one commission by producing more than one ready, willing, and able purchaser, neither could a number of cooperating brokers, acting through the Grand Rapids Multiple Listing Service, earn several commissions by producing several ready, willing, and able purchasers.
The issue in this case is whether the owner refused, without justification, to accept the offer presented by the plaintiff or was unjustifiably prevented by the listing broker from accepting plaintiffs offer. Only in the event of one of those conditions would the plaintiff be entitled to a commission for producing a purchaser ready, willing, and able to purchase.
The operative facts for the determination of this issue are not disputed. On October 4, 1976, the property was listed for sale with defendant Preferred Properties. On November 5, 1976, defendant Withey Real Estate presented an offer to purchase which was rejected by the owners. In response to that offer, however, the owners made a counteroffer to the purchaser produced by defendant Withey Real Estate and gave Withey Real Estate until 10 p.m. on November 11 to obtain acceptance of their counteroffer. The counteroffer was accepted within the time allotted.
The listing agreement which we interpret here, like any normal listing agreement, contemplates that there may be some negotiation carried on between the owners and a prospective purchaser. The parties have a right to carry on those negotiations reasonably and in good faith and in accordance with good business practices. There is nothing in this listing agreement which would preclude the owners from making a counteroffer to a prospective purchaser containing terms which varied from the terms of the listing agreement nor from allowing the prospective purchaser a reasonable time to accept the counteroffer. Whether or not the counteroffer was legally revocable by the owners, we find that the owners were not required by the provisions of the listing agreement to retract a commitment made in good faith and in accordance with good business practices because either the listing broker or a cooperating broker had subsequently produced another purchaser ready, willing, and able to purchase on the original terms of the listing agreement.
Under the agreed upon facts of this case, therefore, the listing agreement did not require the owners to terminate their negotiations with the first prospective purchaser and accept the offer presented later by the plaintiff. Since the owners sold their property in accordance with the provisions of the listing agreement and paid a commission on the sale, no commission was payable to any broker for producing a purchaser ready, willing, and able to purchase. Summary judgment on counts I and II was proper.
We next consider whether summary judgment was proper with respect to count III which alleged a contract implied in law. In order to establish a successful claim for a quasi-contractual obligation, there must be a showing of an inequitable benefit received and retained by one party at the expense of another party. Moll v Wayne County, 332 Mich 274, 278-279; 50 NW2d 881 (1952), overruled on other grounds, Brown v Dep’t of Military Affairs, 386 Mich 194, 201; 191 NW2d 347 (1971), cert den 405 US 990; 92 S Ct 1256; 31 L Ed 2d 457 (1972), Brandon Twp v Jerome Builders, Inc, 80 Mich App 180; 263 NW2d 326 (1977). In this case, defendants did not receive any benefit from plaintiff and are not retaining any compensation to which plaintiff is entitled. There is no factual basis for the contract implied in law, and summary judgment was proper.
Count IV alleges a contract implied in fact. In Erickson v Goodell Oil Co, Inc, 384 Mich 207, 211-212; 180 NW2d 798 (1970), the Court discussed the requirements for such a contract:
"A contract implied in fact arises under circumstances which, according to the ordinary course of dealing and common understanding, of men, show a mutual intention to contract. In re Munro’s Estate (1941), 296 Mich 80. A contract is implied in fact where the intention as to it is not manifested by direct or explicit words between the parties, but is to be gathered by implication or proper deduction from the conduct of the parties, language used or things done by them, or other pertinent circumstances attending the transaction. Miller v Stevens, (1923), 224 Mich 626.”
Based on the undisputed facts, no such implied contract existed in the present case. There was no demonstration of any implied agreement by way of the parties’ conduct or language to support plaintiff’s claim for a share of the commission. All obligations among the real estate brokers were spelled out in the written letter concerning the splitting of commission. We conclude that summary judgment for defendants on count IV was also proper.
Finally, plaintiff argues that counts V through VIII were improperly dismissed. These counts contain allegations of violations of a provision of the National Association of Realtors Code of Ethics that a realtor cannot seek any unfair advantage over other realtors. Plaintiff also alleged that defendants breached their fiduciary duty to deal honestly and in good faith. We find no error in the trial court’s entry of summary judgment.
When plaintiff extended the Sportels’ offer, negotiations with the ultimate buyer were still in progress. Grover’s original offer and the property owners’ subsequent counteroffer occurred prior to the offer submitted by plaintiff. The facts demonstrate that the defendants’ attempts to find a suitable buyer were ongoing and were not initiated in order to impede plaintiff’s potential involvement in the sale of the land. Under such circumstances, defendant owners’ refusal to accept the offer brought by plaintiff did not constitute any unfair business dealings.
The cases relied upon by plaintiff arise from different jurisdictions and are readily distinguishable. They involve either an express promise among brokers to work together and split a commission regardless of the party that secures the purchaser, or the failure by a listing broker to split a commission with the broker who actually procures the ultimate buyer. Neither line of cases is applicable here. We conclude that there was no factual support for the claim that the defendants breached any fiduciary duties owed plaintiff.
The decision of the trial court is affirmed. Costs to appellee.
The original complaint consisted of three counts: breach of contract, recovery as a third-party beneficiary of the listing agreement, and conspiracy to prevent the collection of the commission. On August 10, 1977, the trial court granted summary judgment in favor of defendant Constance Withey on the third-party beneficiary count. | [
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Allen, J.
In this appeal we are asked to decide whether the right of referendum set forth in the Township Rural Zoning Act, MCL 125.271 et seq.; MSA 5.2963(1) et seq., applies to charter townships. The question raised is of first impression. On December 7, 1979, the circuit court for Ingham County answered the question in the affirmative. Defendant Board of Trustees appeals of right. We affirm.
Defendant Board of Trustees (Board) is the governing body of the Charter Township of Meridian. Plaintiffs are residents and landowners in Meridian Township. On March 20, 1979, the Board amended the township’s zoning ordinance by rezoning a parcel of land owned by Eyde Construc tion Company from "rural residential” (net effective density of 1 unit per acre) to "single family low density” (net effective density of 2.6 units per acre). Within 30 days of the amendment, plaintiffs submitted petitions containing the signatures of 1,500 residents requesting a referendum on the zoning amendment. The petitions represented more than eight percent of the number of township residents voting for governor in the last gubernatorial election.
The Board denied the request by resolution on May 1, 1979, and on September 19, 1979, plaintiffs filed suit requesting declaratory and injunctive relief to compel the Board to schedule a referendum. After intervening defendants’ motion to intervene was granted, both plaintiffs and the Board moved for summary judgment. On December 7, 1979, the trial court in a written opinion and order granted plaintiffs’ motion for summary judgment. On May 20, 1980, the zoning amendment was disapproved by township voters, 2,762 votes to 884 votes.
In Stadle v Battle Creek Twp, 346 Mich 64; 77 NW2d 329 (1956), the Court held that the Township Rural Zoning Act gave the right of referendum for zoning ordinance amendments. Defendant contends that Stadle has no application because Meridian Township is not a general law township but is instead a charter township. It is defendant’s contention that in general law townships all legislative power, unless expressly delegated, is retained by the inhabitants, MCL 41.2, 41.4; MSA 5.2, 5.4, but that in charter townships, all legislative authority is vested in the township board. We do not quarrel with defendant’s statement that there are differences in the powers of the boards of general law and charter townships, but disagree that it follows that the Township Rural Zoning Act does not apply to charter townships.
Townships are provided with zoning powers by the Township Rural Zoning Act. The preamble to that act, as amended, provides in part:
"AN ACT to provide for the establishment in townships of zoning districts within which the proper use of land and natural resources may be encouraged or regulated by ordinance * * (Emphasis supplied.)
The preamble refers to "townships” and does not distinguish between charter law townships and those existing pursuant to general law. Likewise, § 1 of the act permits the enactment of a zoning ordinance by the township board of an "organized township”. MCL 125.271; MSA 5.2963(1). Organized townships exist pursuant to Const 1963, art 7, § 17. Neither the act nor the Constitution distinguishes between charter and general law townships. The primary rule of statutory construction is that the Legislature is presumed to have intended the plain meaning of the words used by it. Florentine Ristorante, Inc v Grandville, 88 Mich App 614, 619; 278 NW2d 694 (1979). The word "township” standing alone carries no intrinsic distinction between charter and general law townships and should be considered to include both within its plain meaning. Thus, we conclude that the Township Rural Zoning Act applies to charter townships as well as general law townships.
Nothing in the statute authorizing the incorporation of charter townships excludes charter townships from the referendum provisions of the Township Rural Zoning Act. Section 1 of the Charter Township Act gives to a charter township and its officers the powers of a general law township. That section grants,
"except as otherwise provided in this act, all the powers, privileges, immunities and liabilities possessed by townships, their inhabitants, and by the officers of the townships bylaw * * *.” (Emphasis supplied.)
Section 5 of the statute confers broader powers. It reads:
"Except as otherwise provided in this act, all legislative authority and powers of each charter township shall be exercised and determined by a township board * * *.” (Emphasis supplied.)
We do not read § 5 as conferring powers exclusive of the provisions of the Township Rural Zoning Act, a statute which by its terms applied to all townships and which was in existence some four years before passage of the Charter Township Act.
Calling this Court’s attention to decisions which hold that charter townships possess powers similar to incorporated cities and villages and to the fact that, during legislative consideration of the most recent amendment to the Charter Township Act, a legislative analysis of the proposed bill, HB 4030, referred to charter townships as "proto-cities”, and further directing our attention to the fact that a city zoning ordinance which does not contain a referendum provision is not subject to a referendum, defendant concludes that, likewise, a charter township ordinance containing no referendum provision is not subject to referendum. We are not persuaded. Zoning powers for townships, cities, villages and counties are spelled out in separate statutes. MCL 125.271 et seq.; MSA 5.2963(1) et seq. (townships), MCL 125.581 et seq.; MSA 5.2931 et seq. (cities and villages), MCL 125.201 et seq.; MSA 5.2961(1) et seq. (counties). The provisions of the various acts differ substantially. For example, the statute pertaining to zoning by cities contains no referendum provision.
A special statute relating to particular issues and questions must prevail over a more general statute. Mayor of Port Huron v City Treasurer of Port Huron, 328 Mich 99; 43 NW2d 77 (1950). Furthermore, the preamble to the city zoning act, supra, limits the statute:
"AN ACT to provide for the establishment in cities and villages of districts or zones within which the use of land * * * may be regulated by ordinance.” (Emphasis supplied.)
Nor are we persuaded that Stadle has been overruled by West v Portage, 392 Mich 458; 221 NW2d 303 (1974). That decision dealt with the referendum provisions of the home rule act, MCL 117.4i(6); MSA 5.2082(6), and is in no way applicable to townships. For the foregoing reasons, the judgment of the trial court is affirmed.
No costs, a public question being involved.
1947 PA 359, MCL 42.1 et seq.; MSA 5.46(1) et seq., effective October 11,1947.
The Township Rural Zoning Act, supra, 1943 PA 184, was effective July 30,1943.
Warren Twp v Municipal Finance Comm, 341 Mich 607, 619; 67 NW2d 788 (1954), Renne v Waterford Twp, 73 Mich App 685, 690; 252 NW2d 842 (1977). See also § 15, Charter Township Act, MCL 42.15; MSA 5.46(15).
House Legislative Analysis Section, Analysis of HB 4030, March 3, 1977. | [
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Bronson, P.J.
Petitioner-appellant (hereinafter petitioner) seeks review of its property tax assessments for the years 1975 through 1979.
Petitioner initially disputed its property assessment in 1974. On August 29, 1974, the township assessor for Ypsilanti Township and the agent for Congresshills Apartments, a limited partnership, entered into an agreement whereby they stipulated to an assessment of $1,573,860 for the tax years 1974, 1975, and 1976 based on a true cash value of $3,400,000 and a state equalized value of $1,700,000.
At the time the dispute originally arose, the Michigan Tax Commission had jurisdiction over assessment controversies. On August 31, 1974, the Commission was divested of its authority to hear any new cases. MCL 205.771(a); MSA 7.650(71)(a). However, the Commission retained jurisdiction over any matter heard on or before August 31, 1974, until September 30, 1974. MCL 205.771(b); MSA 7.650(71)(b). On September 30, 1974, the Commission entered an order enforcing the parties’ stipulation.
On May 25, 1979, petitioner sought review of its property assessments for the years 1975 through 1979 before the Michigan Tax Tribunal. On respondent’s motion, however, the Tax Tribunal dismissed petitioner’s appeal for the tax years 1975 and 1976. On September 14, 1979, the Tax Tribunal entered an order denying a reduction in the assessments for 1977 and 1979, which were $1,366,000 and $1,900,000 respectively. Furthermore, the Tribunal increased the 1978 assessment of the apartment complex to $1,750,000, resulting in petitioner’s liability for an additional $15,000 in taxes.
Petitioner now appeals as of right. Additional facts will be detailed where relevant to specific issues.
I
Due to the stipulation entered into between the parties for the tax years 1975 and 1976, petitioner is only entitled to relief for these years if the order entered pursuant to the stipulation was invalid. Petitioner contends that the Tax Commission order of September 30, 1974, was invalid because the matter had not been "heard” by August 31, 1974, within the meaning of MCL 205.771(a); MSA 7.650(71)(a). If petitioner is correct, the Tax Tribunal did not have jurisdiction to enter the order in dispute.
We think the Tax Tribunal resolved this issue succinctly and correctly when it wrote in its opinion on this matter:
"Clearly, the legislative intent was to limit the amount of cases heard by the STC but decided by the Tribunal. To this end, the statute provided for an early transfer of cases not yet heard by the STC (August 31, 1974), and then also provided an additional 30 days during which the STC would have an opportunity to reach a decision as to those pending cases which did not require hearing.
"The stipulation was duly entered into between the parties through their authorized representatives prior to August 31, 1974. The matter was ready for decision by the STC by August 31, 1974 and we believe that the effect of the stipulation was the same as if it had been ready for decision based on a hearing. This Tribunal considers the stipulation to be in lieu of a hearing and thus falling within the purview of MCL 205.771(b); MSA 7.650(71).”
Additionally, we note that MCL 205.771; MSA 7.650(71), became effective on July 1, 1974. Were we to accept the petitioner’s argument, we would have to conclude that no valid order based on the parties’ stipulation could be entered by the Tax Commission for the months of July and August, 1974, unless a hearing was conducted also. To require a formal hearing where the parties have agreed to a particular resolution of a dispute defeats the very purpose of a stipulation, that is: the expeditious and amicable resolution of an adjudication. Moreover, to require a formal hearing in such circumstances would constitute a gross waste of the Tax Commission’s resources and the taxpayers’ monies.
This Court has defined a hearing as a "judicial examination of the issues between the parties, whether of law or fact”. Michigan Consolidated Gas Co v Muzeck, 15 Mich App 193, 196; 166 NW2d 273 (1968). If the "hearing” that petitioner believes it was due constitutes a mere pro forma acceptance of the parties’ stipulation, it would be no true hearing at all as no independent review of the law or facts by the quasi-judicial tribunal would occur. If the "hearing” embodies a full adjudication including the taking of testimony, it would merely prolong litigation and divest the parties of their right to settle their dispute on mutually agreeable terms. See, Conel Development, Inc v River Rouge Savings Bank, 84 Mich App 415, 419, fn 5; 269 NW2d 621 (1978), lv den 406 Mich 910 (1979).
II
Petitioner next argues that, even assuming the order entered by the Tax Commission was effective, it had a right to a hearing to establish that the property was not worth as much in 1975 and 1976 as the stipulated value. Petitioner relies on the following portion of MCL 211.152(3); MSA 7.210(3), for its position that it is entitled to a review of its assessed valuation for 1975 and 1976:
"When the assessment of any property has been reviewed by the commission as herein authorized, such assessment shall not be changed for a period of 3 years without the written consent of the commission.”
We do not disagree with petitioner’s assertion that, in appropriate cases, the Tax Tribunal may review an assessment which was originally determined by the Tax Commission and "frozen” for three years. We do, however, disagree that this case represents a situation in which such review is appropriate.
The assessed valuations given petitioner in this case were not the result of a fully litigated dispute. This is not a case in which the parties vigorously disagreed on the proper assessment and presented their conflicting theories before the State Tax Commission. In such a case, it cannot be said that either party really agreed to the assessment ultimately rendered by the Tax Commission. As such, if either party believed that the Tax Commission’s assessment became unfair during the period of the "freeze” due to changed circumstances, MCL 211.152(3); MSA 7.210(3) provided a means for rectifying the problem.
Petitioner, however, would have us hold that MCL 211.152(3); MSA 7.210(3) was also intended to apply where the parties come to a mutual agreement concerning the fair property assessment. In effect, the agreement here was a stipulation of facts relative to the value of the property upon which a consent judgment was predicated. Such stipulations are binding on the parties. Thomas Canning Co v Johnson, 212 Mich 243, 249; 180 NW 391 (1920), Wechsler v Zen, 2 Mich App 438, 441; 140 NW2d 581 (1966), Shahan v Shahan, 74 Mich App 621, 623; 254 NW2d 596 (1977).
Ill
Petitioner also argues that the Tax Tribunal’s determination of the assessments for the tax years 1977, 1978, and 1979 are improperly based upon hypothetical market rents and income projections. The record reveals that the subject property was financed, built, and operated pursuant to a United States Department of Housing and Urban Development (HUD) program designed to make quality housing available to low-income families. A HUD regulatory agreement limits the amount of rents which may be charged for the apartments, and these rents are substantially below market levels for comparable housing. The mortgage on the property has a "lock-in” provision which mandates that the mortgage — and the limitation on the rate of rentals — cannot be discharged for a period of 20 years. Testimony shows that petitioner has a greater problem with payment delinquencies than similarly situated properties because of restrictions limiting rentals to persons with lower incomes.
While our authority to review the Tax Tribunal’s valuation decision is limited, we must consider whether the Tribunal committed an error of law or adopted an incorrect principle. Northwood Apartments v Royal Oak, 98 Mich App 721; 296 NW2d 639 (1980), and cases cited therein.
For the purposes of taxation, property is to be assessed in accordance with its true cash value. Const 1963, art 9, § 3. Fair market value is synonymous with true cash value. CAF Investment Co v State Tax Comm, 392 Mich 442, 450; 221 NW2d 588 (1974). The Legislature has defined true cash value as:
" 'Cash value’ means the usual selling price at the place where the property to which the term is applied is at the time of assessment, being the price which could be obtained for the property at private sale, and not at forced or auction sale.” MCL 211.27(1); MSA 7.27(1).
In CAF, supra, 454-455, the Supreme Court concluded that the State Tax Commission was required to consider actual income as a factor in determining true cash value instead of hypothetical rental income not demonstrably related to fair market value. The property in CAF was subject to a long-term lease. At the time the lease agreement was entered into, the rental rate obtained was at the then prevailing market rate. However, circum stances had changed, making the property’s rental value (and thus true cash value) much higher if it could be leased under current market conditions.
The CAF decision stands for the obvious and unremarkable proposition that a buyer will be unwilling to purchase a property based upon current rental rates available in the market where he is unable to enjoy these rates due to an existing lease. It is equally obvious that a potential purchaser will not pay the market rate for an apartment complex where, as here, current market rental rates cannot be obtained due to governmental restrictions. MCL 211.27(1); MSA 7.27(1) requires the assessor to consider the "present economic income” of the property. In CAF, supra, the Supreme Court held that "economic income” as used within the meaning of the statute means actual income. See, also, Northwood Apartments, supra. Other jurisdictions which have considered this issue have also come to the conclusion that Federal restrictions on rental income must be considered in determining the true cash value of a property. Kargman v Jacobs, — RI —; 411 A2d 1326 (1980), Community Development Co of Gardner v Board of Assessors of Gardner, — Mass —; 385 NE2d 1376 (1979), Royal Gardens Co v City of Concord, 114 NH 668; 328 A2d 123 (1974). In our opinion, the Tax Tribunal committed an error of law by basing its determination of true cash value for the years 1977 through 1979 on hypothetical rental rates which the petitioner could not legally obtain.
As was noted in CAF, supra, 455-456, the assessor is not required to solely limit its assessment decision based on actual rents received under the HUD restrictions. This is true whether the encumbrance to obtaining market income is due to a long-term lease or Federal program restrictions. For instance, in this case the petitioner was restricted in the maximum rental rates it could charge for a 20-year period. The true cash value of the subject property is thus greater than that for a comparable property whose actual yearly income is identical to that of petitioner’s, where these actual income figures truly reflect market conditions. As the remaining period of restricted rental rates declines, the price which a willing purchaser would pay for the apartment complex increases.
As a corollary to our holding that the Tax Tribunal must use actual income figures in determining the true cash value of the property, we also hold that the Tribunal must consider actual expenses in reaching a determination of fair market value, and not market averages. Again, see Northwood Apartments.
Although in this case we are concerned with governmental restrictions imposed by HUD which affect rental rates and, thus, true cash value, actual income from commercial property must be considered in all cases in which valuation is in issue.
Affirmed in part, reversed in part, and remanded for recalculation of the true cash value for the tax years 1977 through 1979 in accordance with this opinion._
This, of course, assumes that the rental rates in the market continue to be at levels in excess of the restricted rates allowed by HUD. | [
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M. F. Cavanagh, P.J.
Plaintiff, Randy Grodin, and his father, Dennis Grodin, individually and as his next friend, appeal the trial court’s grant of summary judgment in favor of Randy’s mother, Roberta Grodin. The action against defendant Dr. Daniel Cohen was not dismissed by summary judgment. Only defendant Roberta Grodin is a party to this appeal.
It is alleged that as a result of Dr. Cohen’s assurances that it was impossible for her to become pregnant, Roberta continued to take the medication tetracycline. Only after consulting a different doctor who told her she was seven or eight months pregnant did Roberta stop taking the medication. As a result of his mother’s taking the drug, Randy developed teeth that were brown and discolored.
The plaintiffs’ original complaint alleged that Dr. Cohen was liable to plaintiff Randy Grodin as a result of malpractice in not administering a pregnancy test to defendant Roberta Grodin after symptoms of pregnancy were brought to the doctor’s attention. Plaintiffs’ amended complaint asserted that defendant Roberta Grodin was negligent in her failure to seek proper prenatal care, for failure to request that Dr. Cohen perform a pregnancy test and her failure to inform Dr. Cohen that she was taking tetracycline.
The trial court granted Roberta’s motion for summary judgment, GCR 1963, 117.2(1), basing the dismissal on a mother’s immunity from suit for her alleged negligence under the second exception to the general abrogation of parent-child tort im munity provided by Plumley v Klein, 388 Mich 1; 199 NW2d 169 (1972).
In Plumley, supra, the Michigan Supreme Court in overruling the doctrine of intrafamily tort immunity held:
"We are persuaded that the modern rule best serves the interests of justice and fairness to all concerned. The case of Elias v Collins, [237 Mich 175; 211 NW 88 (1926)] supra, which provides for intra-family tort immunity is overruled. A child may maintain a lawsuit against his parent for injury suffered as a result of the alleged ordinary negligence of the parent. Like our sister states, however, we note two exceptions to this new rule of law: (1) where the alleged negligent act involves an exercise of reasonable parental authority over the child; and (2) where the alleged negligent act involves an exercise of reasonable parental discretion with respect to the provision of food, clothing, housing, medical and dental services and other care.” Plumley, supra, 8. (Footnote omitted.)
The trial court in the present case analyzed Plumley’s second exception by stating:
"The policy underlying the exceptions is 'that within the framework of parental authority and discretion, parents must be accorded immunity from litigation which in fact would disrupt family harmony and unity. The immunity is limited to transactions which are essentially parental.’ Lemmen v Servais, 39 Wis 2d 75; 158 NW2d 341, 344 (1968); see also Schenk v Schenk, 100 Ill App 2d 199; 241 NE2d 12 (1968). Thus, this Court finds that Plumley’s second exception asks essentially whether the defendant’s behavior involves the exercise of parental discretion in an area in which such discretion is ordinarily or reasonably employed.”
The Supreme Court in Womack v Buchhorn, 384 Mich 718; 187 NW2d 218 (1971), determined that a child could bring a negligence action against a tortfeasor for negligently inflicting prenatal injuries.
"In the light of the present state of science and the overwhelming weight of judicial authority, this Court now overrules Newman v Detroit [281 Mich 60; 274 NW 710 (1937)]. We hold that an action does lie at common law for negligently inflicted prenatal injury. We adopt the reasoning and result of the New Jersey Supreme Court (which also involved a common-law action):
" 'And regardless of analogies to other areas of the law, justice requires that the principle be recognized that a child has a legal right to begin life with a sound mind and body. If the wrongful conduct of another interferes with that right, and it can be established by competent proof that there is a causal connection between the wrongful interference and the harm suffered by the child when born, damages for such harm should be recoverable by the child.’ Smith v Brennan, (1960), 31 NJ 353, 364, 365, (157 A2d 497, 503).” Womack v Buchhorn, supra, 725.
Womack, supra, does not limit those who may be held liable for the negligently inflicted injury. The rationale of Smith v Brennan, supra, adopted by the Michigan Supreme Court in Womack, refers only to wrongful conduct of "another” for which compensable damages are available. As a result, the litigating child’s mother would bear the same liability for injurious, negligent conduct as would a third person.
A woman’s decision to continue taking drugs during pregnancy is an exercise of her discretion. The focal question is whether the decision reached by a woman in a particular case was a ’’reasonable exercise of parental discretion”. Plumley, supra, 8.
This Court in discussing the reasonableness of an allegedly negligent defendant’s conduct, laid the following analytical framework for the determination of the reasonableness of such conduct:
"The reasonableness of the risk of harm whether analyzed in terms of duty, proximate cause or a specific standard of care turns on how the utility of the defendant’s conduct is viewed in relation to the magnitude of the risk thereby created. Moning v Alfono, [400 Mich 425; 254 NW2d 759 (1977)] supra. In any case where there might be a reasonable difference of opinion regarding how that balance should be resolved, the question is for the jury, subject to instructions as to the legal conclusion to be drawn from its determination. Moning v Alfono, supra, Bonin v Gralewicz, 378 Mich 521; 146 NW2d 647 (1966).” Meyers v Robb, 82 Mich App 549, 554; 267 NW2d 450 (1978), lv den 403 Mich 812 (1978).
The summary judgment of the trial court in this case precluded testimony on either the utility of the use of tetracycline for the maintenance of the mother’s health, or the risk created for plaintiff Randy Grodin.
We reverse and remand for a determination of the "reasonableness” of the alleged negligent conduct. A determination that the defendant’s conduct was unreasonable would take the action out of the second exception of Plumley, supra, and thus parental immunity would not be available to defendant Roberta Grodin. A determination by a jury that the defendant mother acted reasonably in her exercise of her discretion would give rise to Plumley parental immunity and absolve her of liability.
In abolishing parental immunity and in providing for but two exceptions, our Supreme Court certainly was aware of the language utilized by our sister state, Wisconsin, in stating its exceptions to parental immunity. In Goller v White, 20 Wis 2d 402; 122 NW2d 193 (1963), cited in Plum ley, supra, the Wisconsin court phrased the second exception as follows:
"(2) where the alleged negligent act involves an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.” Goller, supra, 413. (Emphasis added.)
Instead of "an exercise of ordinary discretion”, Plumley excepts an act involving "an exercise of reasonable discretion”. The choice of the word "reasonable” appears deliberate and would seem to us to require a determination by the finder of fact, thus precluding summary judgment.
Defendant Roberta Grodin urges this Court to find the plaintiffs’ position untenable because the plaintiffs alleged two seemingly inconsistent claims as to the negligence of defendant Dr. Cohen and defendant Roberta Grodin. GCR 1963, 111.9(2) allows for the pleading of inconsistent claims. We find no error in that regard.
We reverse and remand for a determination of the reasonableness of defendant Roberta Grodin’s conduct pursuant to the factors set forth for that determination in Meyers v Robb, supra.
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Per Curiam.
Plaintiff appeals as of right from the entry of accelerated judgment for defendant Detroit Automobile Inter-Insurance Exchange and the entry of summary judgment for defendant Farmers Insurance Group.
On June 21, 1975, plaintiff was injured when his motorcycle collided with a car driven by Irene Thayer. His motorcycle was not insured for no-fault benefits. On March 2, 1976, he sued Thayer for negligence. He subsequently, on June 18, 1976, amended the complaint naming Farmers as a party defendant. The parties eventually settled the claim against Thayer and stipulated that she be dismissed from the suit.
On September 16, 1976, plaintiffs sister testified in a deposition that she owned no-fault automobile insurance with DAIIE and that that insurance covered plaintiff.
On July 6, 1977, Davidson v Johnson, 76 Mich App 497; 257 NW2d 139 (1977), was decided. It stated that in such a situation the motorcycle driver is to recover from the car owner’s insurance company. This same decision was reached in Underhill v Safeco Ins Co, 76 Mich App 13; 255 NW2d 349 (1976), released for publication July 20, 1977. Based on Davidson, the trial court granted summary judgment in the present case for plaintiff against Farmers. The order granting summary judgment was dated November 22, 1977.
That day a split on this issue developed in this Court. Hill v Aetna Life & Casualty Co, 79 Mich App 725; 263 NW2d 27 (1977), followed Davidson and Underhill in ruling that the motorcycle driver must collect from the car owner’s insurance company. However, Davidson was reversed on rehearing. 79 Mich App 660; 262 NW2d 887 (1977). The Court now ruled that the plaintiff must collect from his own insurance company. This same result was reached a few days later in Porter v Michigan Mutual Liability Co, 80 Mich App 145; 263 NW2d 318 (1977). Consequently, the parties stipulated on June 13, 1978, that DAIIE be added as a defendant.
This Court affirmed the summary judgment grant on January 5, 1979, based on Underhill, Hill, and the dissent in Porter. Kalakay v Thayer, Docket No. 77-4880, unreported per curiam opinion. However, the Supreme Court unanimously decided the issue on October 29, 1979, in Underhill v Safeco Ins Co, 407 Mich 175; 284 NW2d 463 (1979), and followed Davidson (On Rehearing) and the majority in Porter. Subsequently, the Supreme Court summarily reversed the present case. 407 Mich 943; 286 NW2d 34 (1979).
On remand, the trial judge granted summary judgment for Farmers based on the Supreme Court’s decision in Underhill. He simultaneously granted accelerated judgment for DAIIE holding that the statute of limitations had expired. MCL 500.3145(1); MSA 24.13145(1).
Suing the wrong party usually does not toll the statute of limitations. Ciotte v Ullrich, 267 Mich 136; 255 NW 179 (1934), Anno: Change in party after statute of limitations has run, 8 ALR2d 6, § 53, p 112. However, such a determination depends upon the particular circumstances of the case. Cobb v Mid-Continent Telephone Service Corp, 90 Mich App 349; 282 NW2d 317 (1979).
Plaintiff is arguing that this Court should, through its equitable powers, hold that the statute of limitations should not apply in this case to bar his suit against DAIIE. He claims that at the time he brought suit the law required him to sue Farmers — the car owner’s insurance company — and that he then sued DAIIE within a reasonable time after discovering that the law might change. In effect, plaintiff is arguing that the equitable doctrine of contra non valentem agere nulla currit praescriptio (a prescription does not run against the party who could not bring a suit) should apply to this case. See Sincox v Blackwell, 525 F Supp 96 (WD La, 1981).
To a certain extent, a statute of limitations is not always a mechanical bar. In an analogous situation, a balancing test applies. If the plaintiff files a motion to amend the complaint to add the defendant before the statute of limitations expires but the judge does not grant the motion until after the expiration, this Court will hold that the statute was tolled if the plaintiff demonstrates due diligence in discovery and complies with procedural rules. Charpentier v Young, 83 Mich App 145; 268 NW2d 322 (1978), rev’d on other grounds 403 Mich 851; 291 NW2d 926 (1978).
On balancing the interests, we look to the defendant’s conduct (whether inequitable or not) on the one hand and to see if he had actual notice. See Matti Awdish, Inc v Williams, 117 Mich App 270; 323 NW2d 666 (1982). On the other hand, we look to the plaintiff’s due diligence and capacity to sue. See, e.g., Foster v Woods, 71 Mich App 147; 246 NW2d 387 (1976), lv den 399 Mich 805 (1977).
We would most likely hold for plaintiff if in fact he could not have sued DAIIE when he sued Farmers because the law then required him to sue Farmers. However, even if we assume that plaintiff exercised due diligence in discovering that DAIIE insures his sister’s car, even if we assume that the statute did not already bar the suit at that time, and even if we assume that the six-month delay between the reversal of Davidson on rehearing and plaintiff’s suit against DAIIE was not unreasonable, we find that plaintiff did not exercise due diligence in suing DAIIE. The doctrine of contra non valentum agere nulla currit praescriptio does not apply where the delay is due to the plaintiff’s own neglect. Sincox, supra. At the time plaintiff sued Farmers and found out about DAIIE, the law was not clear but unsettled. The law did not become settled until July 6, 1977, ten months after plaintiff knew about DAIIE. As such, he should have sued DAIIE at that time in the alternative as one plaintiff in Davidson had. See Evernham v Selected Risks Ins Co, 163 NJ Super 132; 394 A2d 373 (1978). Ignorance of the law usually does not toll a statute of limitations. Richards v Mileski, 213 US App DC 220; 662 F2d 65 (1981). Therefore, we affirm the trial judge’s grant of accelerated judgment against plaintiff:
"It is not unjust to deny a plaintiffs claim when he has failed to notify a defendant within the period of limitations.” Meda v City of Howell, 110 Mich App 179, 184; 312 NW2d 202, 204 (1981).
We also affirm the grant of summary judgment for Farmers Insurance Group. Underhill, supra.
Affirmed. | [
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Per Curiam.
The contesting parties in this custody suit were divorced on November 27, 1974. There were three minor children, Ronald, Scott, and Douglas, whose ages were 12, 11, and 10 respectively in 1981. Custody of the three children at the time of the divorce was awarded to the plaintiff mother. Both parents have remarried.
By stipulation, an order was entered on June 1, 1981, granting temporary custody of Douglas, the youngest son, to the defendant father for the summer of 1981.
The father, toward the end of the summer, filed a petition for a change of permanent custody of Douglas. Apparently, this was done at the request of Douglas, who, all admitted, desired to live with his father and stepmother.
A hearing was held on August 17, 1981. Testimony disclosed that the father had an unusual amount of extended visitation, perhaps one-third of the year with all of his sons. He testified that if Douglas were to live with him he could provide a separate room, and transportation and access to some activities that the mother could not provide. He had also promised Douglas a dog. There was testimony that Douglas related well to his stepmother and that, at times he quarreled with his natural mother. The father did concede that Douglas received adequate care from his mother.
At the close of the defendant father’s proofs, the trial court granted plaintiff’s motion to dismiss the defendant’s petition. The court, in arriving at its judgment, assumed without finding that the established custodial environment, as defined by the Child Custody Act of 1970, MCL 722.21 et seq.; MSA 25.312(1) et seq., was with the mother and then applied the clear and convincing evidence rule. The court also reviewed 8 of the 11 specifically identified factors required by § 3 of the Child Custody Act of 1970, MCL 722.23; MSA 25.312(3), finding generally that the parties were equal except for the preference of Douglas to live with his father.
Prior to passage of the Child Custody Act of 1970, the criteria for determination of a child’s best interests were largely subjective and dependent upon the philosophy of the hearing judge.
The passage of the Child Custody Act of 1970 was an effort by the Legislature to standardize the criteria for determining the best interests of the child. Baker v Baker, 411 Mich 567, 576; 309 NW2d 532 (1981).
Michigan appellate courts have enforced this legislative intent by requiring trial courts to make specific findings on each of the 11 factors and arrive at custody decisions based on the sum total of these factors. Carnes v Sheldon, 109 Mich App 204, 218; 311 NW2d 747 (1981); Currey v Currey, 109 Mich App 111, 117; 310 NW2d 913 (1981); Speers v Speers, 108 Mich App 543, 545; 310 NW2d 455 (1981).
Once a decision on custody has been made, the trial court’s authority to modify its previous order is limited to changing an "established custodial environment” only when it is presented with "clear and convincing evidence that it is in the best interest of the child”. MCL 722.27(c); MSA 25.312(7)(c).
The first step in considering a change of custody petition is to determine whether an established custodial environment exists. It is only then that the court can determine what burden of proof must be applied. Baker v Baker, supra, p 579; DeGrow v DeGrow, 112 Mich App 260, 265; 315 NW2d 915 (1982).
In this case, the court did not make a finding as to the established custodial environment. The court cannot presume an established custodial environment by reference only to a custody order, but must look to the actual circumstances of each case, guided by the standardized criteria. In light of the fact that Douglas had spent perhaps more of the year 1981 with his father than with his mother, such a finding was necessary. The fact that a custody order is labeled "permanent” or "temporary” does not eliminate the requirement that the established custodial environment be determined. Blaskowski v Blaskowski, 115 Mich App 1; 320 NW2d 268 (1982); Berman v Berman, 84 Mich App 740, 747-748; 270 NW2d 680 (1978), lv den 404 Mich 828 (1979).
Child custody cases are tedious and slow. The evidence tends to be cumulative and repetitive. The trial court does have discretion to discourage cumulation and repetition. The court must hear and evaluate all evidence presented in an inquisitorial proceeding and satisfy itself that it is deciding in the child’s best interests. It must also leave a record to review. In re Custody of James B, 66 Mich App 133, 134; 238 NW2d 550 (1975).
This case requires a full hearing. The trial court did not make a finding as to whether there was an established custodial environment. It did not make a finding on each of the 11 mandatory best interests factors required by the Child Custody Act of 1970, as amended. A remand is necessary. Lesauskis v Lesauskis, 111 Mich App 811, 816; 314 NW2d 767 (1981).
Reversed and remanded for a new trial and a full hearing with instructions to develop a record as herein suggested. | [
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M. F. Cavanagh, P.J.
Defendant appeals by right from an Ingham County Circuit Court injunctive order which prohibited defendant both from terminating plaintiff employee’s employment and from withholding her pay. Defendant had attempted to fire plaintiff employee, a registered nurse, on the basis that, she had negligently supervised a male epileptic patient at Fairlawn Center who had accidentally drowned in a bathtub.
Defendant raises two issues on appeal. First, defendant argues that the trial court erred in granting injunctive relief to plaintiffs. Second, defendant argues that it did not deny plaintiff employee’s due process rights by not affording plaintiff employee a full evidentiary hearing prior to the attempted discharge.
In equity cases such as those granting or denying injunctive relief, this Court reviews the record de novo, giving due deference to the findings of the circuit court. This Court is required to sustain the findings of the circuit court unless it is convinced that, had it heard the evidence in the first instance, it would have been compelled to reach a contrary result. Groveland Twp v Jennings, 106 Mich App 504, 509-510; 308 NW2d 259 (1981).
The purpose of a preliminary injunction is to preserve the status quo pending trial or, in this case, pending plaintiff employee’s administrative appeal. An injunction should not be granted unless the party requesting it satisfies the court that, without the issuance of the injunction, he or she will suffer irreparable injury. In addition, there must be a showing that there is no adequate remedy at law. Barkau v Ruggirello, 100 Mich App 617, 623; 300 NW2d 342 (1980).
The concept of "irreparable injury” is an elusive legal term of art, "defying reduction to a mere black-letter definition”. Grand Rapids v Richardson, 429 F Supp 1087, 1093 (WD Mich, 1977). Defendant argues that loss of income and damage to reputation do not constitute the type of irreparable injury necessary to support an injunction against an employee’s dismissal pending an administrative appeal. If plaintiff employee’s claim of wrongful discharge is ultimately sustained, defendant maintains that reinstatement with full back pay would preclude any irreparable injury. In support of this proposition, defendant cites the case of Sampson v Murray, 415 US 61; 94 S Ct 937; 39 L Ed 2d 166 (1974). In Sampson, a federal employee sued for a declaration that her discharge was invalid and sought an injunction against the termination of her employment. The United States Supreme Court held that a temporary loss of income, ultimately to be recovered, and a claim of damage to reputation did not constitute irreparable injury on which to base the issuance of a temporary injunction. 415 US 91-92. In a footnote, the Court stated that cases may arise in which an employee’s discharge would have an extraordinary effect on the employee such that irreparable injury might be found, however, insufficiency of savings or difficulties in obtaining other employment were factors common to most discharged employees and would not support such a finding. 415 US 90, fn 68.
In Sampson, the Court was dealing only with rights that should be accorded to federal employees under the federal civil service statutes. Michigan has a different civil service system, and the courts in Michigan may apply different standards for preliminary injunctive relief.
We find the dissenting opinions in Sampson to be more persuasive. As Justice Douglas noted:
"Employability is the greatest asset most people have. Once there is a discharge from [employment], dismissal may be a badge that bars the employee from other federal employment. The shadow of that discharge is cast over the area where private employment may be available. And the harm is not eliminated by the possibility of reinstatement, for in many cases the ultimate absolution never catches up with the stigma of the accusation.” 415 US 95.
Justice Marshall, joined by Justice Brennan in dissent, stated:
"Many employees may lack substantial savings, and a loss of income for more than a few weeks’ time might seriously impair their ability to provide themselves with the essentials of life — e.g., to buy food, meet mortgage or rent payments, or procure medical services.
"The availability of a back pay award several years after a dismissal is scant justice for a Government employee who may have long since been evicted from his home and found himself forced to resort to public assistance in order to support his family. And it is little solace to those who are so injured to be told that their plight is 'normal’ and 'routine’. Whether common or not, such consequences amount to irreparable injury which a court of equity has power to prevent.” 415 US 101-102.
In this case, plaintiff employee is a divorced mother with a nine-year-old son who resides with her. She provides the sole financial support for that child, has no savings, and would have no means of supporting herself and her child if terminated from her job. In addition, if defendant is permitted to fire plaintiff employee for alleged patient neglect, it is unlikely that she will be able to obtain employment elsewhere as a registered nurse. We agree with the Court’s decision in Lake Michigan College Federation of Teachers v Lake Michigan Community College, 390 F Supp 103, 138 (WD Mich, 1974), rev’d on other grounds 518 F2d 1091 (CA 6, 1975), that:
"The loss of the breadwinner’s wages, even for a short period of time, constitutes specific irreparable damage. That is especially true * * * where there is testimony that several of plaintiffs are the sole support of families with several younger children.”
We find that plaintiff employee has established the type of irreparable injury necessary to support the issuance of a preliminary injunction.
Plaintiff employee has also demonstrated that she does not have an adequate remedy at law. Although it is true that plaintiff employee could ultimately be reinstated in her job with back pay, the remedy is not "as adequate, complete and certain as the relief in equity”. Steggles v National Discount Corp, 326 Mich 44, 49; 39 NW2d 237 (1949). This is because plaintiff employee’s administrative remedy was not immediately available, which is a major consideration in determining the adequacy of any legal remedy. Schantz v Ruehs, 348 Mich 680, 683; 83 NW2d 587 (1957); Van Buren Public School Dist v Wayne Circuit Judge, 61 Mich App 6, 17; 232 NW2d 278 (1975). Other Michigan cases have also held that it is proper for a trial court to grant a preliminary injunction so that employment may be maintained while the employee pursues administrative remedies. See Van Buren Public School Dist, supra; Cohen v Detroit Joint Bd Amalgamated Clothing Workers of America, 327 Mich 606; 42 NW2d 830 (1950); Baltic Mining Co v Houghton Circuit Judge, 177 Mich 632; 144 NW 209 (1913).
We hold that the trial court did not err in granting plaintiff employee the preliminary injunction. Loss of income and damage to reputation may constitute the type of irreparable injury necessary for injunctive relief. In addition, the lack of an immediately available legal remedy may demonstrate the inadequacy of the legal remedy.
Defendant’s second argument on appeal is that due process does not require it to give a civil service employee a full evidentiary hearing prior to discharging the employee for cause. Although the issue was raised below, the trial court did not rule on the constitutionality of defendant’s dismissal procedure.
Under civil service grievance procedures, employees are entitled to a full evidentiary hearing before a civil service hearing officer or an arbitrator after their dismissal. The United States Supreme Court, the Michigan Supreme Court, and this Court have held that due process does not require a full evidentiary hearing before an employee’s dismissal.
In Arnett v Kennedy, 416 US 134, 157; 94 S Ct 1633; 40 L Ed 2d 15 (1974), the Court rejected a due process challenge to a statute allowing the discharge of a federal employee without a prior evidentiary hearing. The Court arrived at its decision by balancing the interests of the government against the interests of the discharged employee and held that "a hearing afforded by administrative appeal procedures after the actual dismissal is a sufficient compliance with the requirements of the Due Process Clause”.
In Rockwell v Crestwood School Dist Bd of Ed, 393 Mich 616; 227 NW2d 736 (1975), the Court, relying in part upon Arnett, supra, held that a striking teacher’s employment may be terminated before the teacher is granted an evidentiary hear ing. Although noting that due process requires a hearing to be held at a meaningful time and in a meaningful manner, the Court found that a post-termination hearing was sufficient to protect the due process rights of a striking teacher. In addition, in Rogers v Trenton Bd of Ed, 61 Mich App 682, 689; 233 NW2d 141 (1975), this Court considered the question of whether there was a constitutional necessity for a pre-termination hearing when a teacher was placed on a leave of absence. We stated that "[t]here is no constitutional necessity for a pre-termination hearing”.
We find that due process does not require a civil service employee to be given a full evidentiary hearing before he or she is dismissed for cause. Although the effect of the trial court’s issuance of the injunction in this case will grant plaintiff a full evidentiary hearing prior to her dismissal, we uphold the granting of the injunction on the basis of the irreparable injury to plaintiff and not on the basis of any due process rights plaintiffs claim may be violated by the lack of a pre-termination hearing.
Affirmed.
Allen, J., concurred. | [
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Per Curiam.
In a four-count information, defendant, Dennis Casey, was charged with three counts of first-degree criminal sexual conduct and one count of assault with intent to commit murder. On December 3, 1980, defendant was convicted by a jury of the lesser included offense of assault with intent to commit great bodily harm less than murder, in violation of MCL 750.84; MSA 28.279, the trial court having dismissed the three counts of criminal sexual conduct after completion of proofs. After being sentenced to not less than five years nor more than ten years in prison, defendant appeals as of right, raising three issues.
First, defendant claims that it was error for the trial court to deny his motion to suppress evidence of a previous felony conviction. The record indicates that upon completion of the prosecutor’s case, defendant brought a motion in limine to suppress evidence of his conviction for two previous felonies, one for manslaughter and the other for felonious assault. The record indicates defendant was convicted of manslaughter in 1968 and was released from prison in 1974. Later in 1974, defendant was convicted of felonious assault.
Earlier in the 1960’s, defendant had been convicted of an assortment of assault and robbery offenses, but they were not involved in defendant’s motion because the prosecutor did not propose to attempt to use them to impeach.
After hearing arguments, the trial court exercised discretion and granted the motion suppressing use of the manslaughter conviction to impeach, but denied it with respect to the felonious assault conviction.
MRE 609(a) provides:
"(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if
"(1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of the punishment, and
"(2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the, record the factors considered in making the determination.”
The decision to permit impeachment of a defendant by evidence of prior convictions is within the discretion of the trial court. In People v Crawford, this Court enumerated the factors to be considered in determining whether evidence of prior convictions should be admissible to impeach a defendant’s credibility: (1) the nature of the prior offense and its relation to defendant’s credibility, (2) whether it is for substantially the same conduct for which defendant is on trial, with closely similar offenses requiring careful examination because of the likelihood of prejudice, and (3) the effect on the decisional process if the defendant refrains from testifying out of fear of impeachment.
In the within case, the trial judge balanced the foregoing factors and decided to suppress one of the two convictions.
This Court has approved of the doctrine enunciated in Gordon v United States that it is proper for a trial court to allow a defendant to be cross-examined regarding his prior felony convictions where a conflict exists between the testimony of a pivotal witness and the defendant. The following passage from Gordon, supra, is enlightening:
"[W]e note that the admission of Appellant’s criminal record here, along with the criminal record of the complaining witness, was not in a vindictive or 'eye for an eye’ sense, as Appellant argues. Rather it was received because the case had narrowed to the credibility of two persons — the accused and his accuser — and in those circumstances there was greater, not less, compelling reason for exploring all avenues which would shed light on which of the two witnesses was to be believed.” (Emphasis added.)
Since in the matter at bar there does not seem to be any question but that defendant and the complaining witness were together on the night in question, the outcome of the case primarily depended on the credibility of the witnesses; the main issue for the jury appeared to be whether defendant was acting in self-defense at the time of the incident.
We note that defendant elected not to testify on his own behalf. He presented one witness, Calvin Banes, who testified that he saw the complaining witness have oral sex with defendant and then get into a fight with him. At the motion in limine hearing, defense counsel did not apprise the trial court whether, in the event the prosecutor was permitted to use the prior conviction for felonious assault to impeach, he, defendant, would testify. Neither did he inform the trial court of the nature of defendant’s testimony, if he were to testify. However, he did state that he intended to call three witnesses on defendant’s behalf.
In People v Wilson, this Court, in following People v Jones, discussed the importance of the defendant informing the trial court of the substance of his testimony when seeking to suppress prior convictions:_
"In People v Jones, supra, this Court cited a recent federal court case, United States v Cook, 608 F2d 1175 (CA 9, 1979). In Cook, the defendant elected to remain silent after the court ruled that evidence of his prior convictions would be admissible for impeachment. On appeal, Cook asserted that the chilling effect of the court’s preliminary ruling changed the course of his trial and prejudiced his defense. In the course of reviewing and upholding the trial court’s ruling, the Court stated:
" 'In future cases to preserve the issue for review, a defendant must at least, by a statement of his attorney: (1) establish on the record that he will in fact take the stand and testify if his challenged prior convictions are excluded; and (2) sufficiently outline the nature of his testimony so that the trial court, and the reviewing court, can do the necessary balancing contemplated in Rule 609.’ Id., 1186.
"The judge in the instant case could not be expected to articulate his assessment of what effect defendant’s failure to testify would have on the decisional process when defendant did not indicate his intentions on the point. In People v Jones, supra, this Court held:
" 'Defense counsel did not assert that the defendant would testify if his record were suppressed, and neither defendant nor his lawyer said what his testimony would be. What could it be? * * * The trial judge referred to MRE 609 and permitted use, for impeachment, of defendant’s three convictions, all recent, because they involved theft, a kind of dishonesty which would be especially probative of where the truth lies in this case. We cannot say that the court’s ruling was wrong, much less an abuse of discretion, although the convictions were for the same or similar crimes.
" 'A judge who refers on the record to MRE 609(a) and quotes language in subparagraph (1) of that rule must be credited with recognition and performance of the function imposed upon him by subparagraph (2) of that rule when he decides the suppression motion.’ Id., 434. (Emphasis added.)”
Therefore, we hold that, the trial judge did not abuse his discretion by suppressing only one of defendant’s two felony convictions.
Defendant next maintains that the trial court erred reversibly by neglecting to charge the jury on the lesser offense of felonious assault. The trial judge instructed the jury on the charged offense of assault with intent to commit murder and on the lesser included offense of assault with intent to commit great bodily harm less than murder. Defendant neither requested instruction on the lesser charge of felonious assault nor objected to the instructions which were given.
Resolution of this issue is controlled adversely to defendant by People v Johnson:
"Defendant also claims that the trial judge erred in not instructing the jury on the lesser included offenses to delivery of a controlled substance. Defendant does not assert, nor does the record show, that instructions on lesser included offenses were requested. Although a trial judge may 'instruct sua sponte on a lesser included offense * * * if the evidence adduced at trial would warrant conviction of the lesser charge and defendant has been afforded fair notice of those lesser included offenses’, People v Chamblis, 395 Mich 408, 417; 236 NW2d 473 (1975), he is not required to do so unless the defendant is charged with first-degree murder. People v Henry, 395 Mich 367, 374; 236 NW2d 489 (1975); People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975). Therefore we find that the trial court did not err in failing to give instructions sua sponte on lesser included offenses to delivery of a controlled substance.”
Last, defendant contends that several errors occurred in the jury instructions. It is noteworthy that defendant neither objected to nor requested a curative instruction regarding the alleged instructional errors. Absent manifest injustice, a defendant’s failure to object to jury charges precludes appellate review. In viewing the charges in their entirety, we conclude that the jury was fairly and correctly instructed.
Affirmed.__
People v Jackson, 391 Mich 323; 217 NW2d 22 (1974).
83 Mich App 35, 39; 268 NW2d 275 (1978).
127 US App DC 343; 383 F2d 936 (1967).
See, e.g., People v Kelly, 66 Mich App 634, 637; 239 NW2d 691 (1976).
Gordon v United States, supra, p 348.
107 Mich App 470, 476-477; 309 NW2d 584 (1981).
98 Mich App 421; 296 NW2d 268 (1980).
409 Mich 552, 562; 297 NW2d 115 (1980).
GCR 1963, 516.2; MCL 768.29; MSA 28.1052; People v Dixon, 84 Mich App 675, 685; 270 NW2d 488 (1978), lv den 405 Mich 837 (1979); 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 636, pp 249-251. | [
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Cynar, J.
Plaintiff brought this original action for mandamus to compel the Attorney General to certify to the Insurance Commissioner that the articles of incorporation submitted by plaintiff are in compliance with the Insurance Code. Plaintiff also asks the Court to compel the Insurance Commissioner to issue a certificate authorizing the incorporators to proceed with the organization of Fireman’s Fund Insurance Company of Michigan.
The agreed-upon facts can be determined from an examination of the briefs of both parties. On April 9, 1980, plaintiff filed with defendant Insurance Commissioner the articles of incorporation of a proposed insurance company to be called Fireman’s Fund Insurance Company of Michigan (hereinafter Fireman’s), together with the bylaws, the plan of organization and operations, a statement by each incorporator and the stock subscription agreement. The incorporators paid the required fees for the cost of examination, investigation and processing of the application by the commissioner. Plaintiff then submitted additional information. At that point, the application was allegedly in order for review by the Attorney General and Insurance Commissioner.
Fireman’s intended to offer insurance against all hazards and risks, except life, title and mortgage insurance. Fireman’s would be a subsidiary of the American Insurance Company and belong to the Fireman’s Fund Insurance Group, a group of 16 insurance companies owned by the American Express Corporation. Fireman’s would locate its home office and principal place of. business in Southfield, where an associated company had previously located its branch office. Plaintiff then expected Fireman’s to consolidate and take over the transferable insurance business of other Fireman’s Fund companies which have written insurance in Michigan.
On August 22, 1980, the Attorney General issued an opinion holding that the Insurance Commissioner may refuse to accept the articles of incorporation of a proposed domestic insurance company where the purpose of incorporation in Michigan is to avoid the premiums tax imposed upon foreign insurers. A copy of this opinion was sent to plaintiff’s attorney. On December 12, 1980, the Insurance Bureau wrote that it was unable to complete its review of plaintiff’s application because the Attorney General had not advised the commissioner of his approval of the articles of incorporation. Plaintiff requested the Attorney General to issue a determination of approval or disapproval without delay. The Attorney General then informed the Insurance Commissioner that he would not approve Fireman’s proposed articles for the reasons expressed in the earlier opinion.
Plaintiff filed a complaint for a writ of mandamus on April 13, 1981. This Court issued an order to show cause on July 22, 1981.
As both parties make clear in their briefs, at stake is the premiums tax liability of a foreign insurer which incorporates a domestic subsidiary through which all of its business in the state is done. Foreign companies doing insurance business in Michigan pay a substantial tax on premiums on all insurance written in Michigan.
I
Plaintiff argues that mandamus is the only remedy available and that plaintiff has been forced to seek a writ of mandamus by defendant’s refusal to follow proper statutory procedures.
This Court has mandamus jurisdiction over state officials under GCR 1963, 714.1(1). An action against a state officer is proper in the Court of Appeals or the circuit court at the option of the party commencing the action. MCL 600.4401; MSA 27A.4401; Schweitzer v Board of Forensic Polygraph Examiners, 77 Mich App 749, 753, fn 5; 259 NW2d 362 (1977), lv den 402 Mich 837 (1977). When there is a plain, direct and adequate alter native remedy, courts will not permit the use of a writ of mandamus. Coffin v Detroit Bd of Ed, 114 Mich 342; 72 NW 156 (1897). Mandamus is inappropriate where there is another adequate remedy in law or in equity. Clarke v Hill, 132 Mich 434; 93 NW 1044 (1903). See, also, Oakland County Bd of Road Comm’rs v State Highway Comm, 79 Mich App 505; 261 NW2d 329 (1977), lv den 402 Mich 907 (1978), and the cases cited therein.
As to the Attorney General, plaintiff indicates that the clear legal duty to be performed is contained in MCL 500.5020; MSA 24.15020, which states in part:
"(1) Before such articles of incorporation shall be effective for any purpose the same shall be submitted to the attorney general for his examination, and if found by him to be in compliance with this code he shall so certify to the commissioner.”
If plaintiff is correct in his claim that the articles of incorporation submitted for review are in compliance with the Insurance Code, he is entitled to a writ of mandamus. His entitlement to the writ of mandamus rests on the resolution of issue II. The writ does, however, appear to be an appropriate remedy.
As to the Insurance Commissioner, plaintiff points to MCL 500.5024; MSA 24.15024, as containing the clear legal duty which he seeks to compel the commissioner to perform. Subsection 1 requires persons seeking incorporation of an insurance company to prepare and file in the commissioner’s office, with the certificate of the Attorney General certifying the articles of incorporation annexed thereto, a statement showing in full detail the plan according to which the company proposes to transact business and a copy of a prospectus and the proposed advertisements to be used to sell stock. The filing is required to contain several other items of information. Subsection 2 requires the commissioner to examine the statements and documents presented to him and states that he shall have the power to conduct any investigation which he may deem necessary and to hear the incorporators and to examine under oath any persons interested in or connected with the proposed insurance company. If, in the commissioner’s opinion, the sale of capital stock in the proposed insurance company or soliciting of membership therein would work a fraud upon the persons subscribing to such capital stock or membership, the commissioner shall refuse to license the person to proceed in the organization and promotion of the insurance company. Further, MCL 500.5040; MSA 24.15040 requires the commissioner, upon the petition of the incorporators, to cause an examination to be made concerning the capital stock to determine if the requirements concerning the same have been fully complied with. Upon being satisfied that all requirements of the Insurance Code precedent to commencing business have been fully complied with, the commissioner shall deliver to the company a certificate of authority to commence business and issue policies.
It is clear that the duties of the commissioner which plaintiff seeks to compel her to perform may not be performed before the certification of the articles of incorporation by the Attorney General. No clear legal duty has yet devolved upon the commissioner which she has breached. Mandamus ordinarily will not issue unless the defendant is under a clear legal duty to act. Hill v State Highway Comm, 382 Mich 398, 402; 170 NW2d 18 (1969). The Insurance Commissioner will not be under a clear legal duty to act unless and until the Attorney General certifies the articles of incorporation. Even then, the commissioner will not be under a duty to grant the relief sought by plaintiff until she has performed her statutory functions, under MCL 500.5024; MSA 24.15024 and MCL 500.5040; MSA 24.15040. The facts presented do not show that the commissioner has failed to perform any legal duty owed to plaintiff, clear or otherwise.
We find that this action in mandamus is an appropriate means of seeking relief against the Attorney General. At the same time, no writ may issue against the commissioner because the facts presented do not show any legal duty on her part at this time.
Defendants also claim that plaintiff has another adequate remedy, i.e., a declaratory judgment action in circuit court. We reject this claim for failure to support it with argument or authority. Plaintiff does not seek merely a declaration of rights but rather a mandate to state officers to perform their legal duties. Plaintiff clearly claims that he is entitled to immediate action on the part of defendants.
II
Although we have determined that mandamus is an appropriate remedy ajgainst the Attorney General, it remains to be decided whether the facts of this case warrant the issuance of a writ. This depends on whether the Attorney General properly refused to certify the articles of incorporation. We believe he did hot and that certification of the articles should have been granted. It appears that the discretionary determination that has been made by the Attorney General is more properly within the province of the Insurance Commissioner.
Before further analysis takes place, some clarification of the role of the Attorney General’s opinion should be made. Plaintiff submitted documents to the commissioner who submitted them for certification of the articles of incorporation by the Attorney General. The Attorney General issued an opinion stating that the Insurance Commissioner, not the Attorney General, could disapprove a filing as a domestic insurer if, after investigation, she found that the purpose for incorporation in Michigan was to avoid the premiums tax imposed upon foreign insurers. OAG 1979-1980, No 5758, p 930 (August 22, 1980). Later, the Attorney General wrote to the commissioner, with a copy to plaintiff, stating that he had disapproved the articles of incorporation for the reasons stated in his opinion. Of course, nothing in the opinion stated that he had such power.
In justifying his refusal to certify plaintiff’s articles of incorporation, the Attorney General relies on MCL 500.5020(1); MSA 24.15020(1), which requires him to certify the articles "if found by him to be in compliance with this code”. MCL 500.5008(2); MSA 24.15008(2) requires that the articles submitted contain:
"* * * Fourth, The purposes of the incorporation and the reference to the chapter of this code under which such purposes are enumerated and under which such company intends to operate * * *.”
The Attorney General suggests that these provisions are the basis for the refusal to certify. Al though plaintiff stated the purposes of incorporation, the Attorney General found that such purposes were not in compliance with the Insurance Code.
Plaintiff, on the other hand, argues that the Attorney General’s review of the articles of incorporation is a formal one, intended only to determine whether the application itself complies with the code. Plaintiff argues that, if the Attorney General finds the stated purpose to be an illegal one under the code, it reasonably follows that he may refuse to certify the articles for failure to be "in compliance with this code”.
Very few cases have interpreted the sections concerning the rules for organization of domestic stock and mutual insurers. It appears here, however, that the Attorney General has attempted to usurp the powers of the Insurance Commissioner. MCL 500.5024(2); MSA 24.15024(2) specifically provides that the commissioner shall have the power to conduct any investigation deemed necessary concerning the incorporation of a domestic insurance company.
The Court recognizes the differing treatment accorded domestic and foreign companies by the Insurance Code which may indicate a legislative intent to preclude foreign insurers from establishing shell companies within the state to gain favorable treatment.
The code contains many distinctions between domestic and foreign insurers. Fees are different for domestic insurers and foreign insurers, MCL 500.240; MSA 24.1240. MCL 500.403; MSA 24.1403 requires only foreign insurers to obtain a certificate of authority concerning solvency. Special requirements for possession of assets for foreign insurers are set forth in MCL 500.404; MSA 24.1404. Special requirements concerning the corporate purposes of foreign insurers are set forth in MCL 500.406; MSA 24.1406. The applicable deposit requirements for domestic insurers differ from those for foreign insurers as set forth in MCL 500.411; MSA 24.1411. Foreign fire, fire and marine and marine and inland insurers must also file an agreement as to competition, which is not a requirement for domestic insurers, MCL 500.422; MSA 24.1422. Foreign insurers are required to file certain documents concerning their admission to do business in the state of their origin or incorporation, MCL 500.424; MSA 24.1424. The rules concerning names for the conduct of business differ, MCL 500.454; MSA 24.1454.
Of particular importance in determining, the Legislature’s intent is the differing tax treatment accorded domestic and foreign companies. MCL 500.440; MSA 24.1440 imposes a premiums tax of two percent or three percent, depending on the type of insurance, on all premiums on business written or renewed in the state. Domestic insurers are subject to the Michigan Single Business Tax Act, MCL 208.1 et seq.; MSA 7.558(1) et seq. The single business tax is similar to a value-added tax in that it taxes what one has added to the economy in contrast to an income tax which taxes what one has derived from the economy. Stockler v Dep’t of Treasury, 75 Mich App 640, 643-644; 255 NW2d 718 (1977), lv den 402 Mich 802 (1977), app dis 435 US 963 (1978). Such a tax is more likely to impose a heavier burden on true domestic insurers than on instrumentalities of foreign insurers incorporated in Michigan because it taxes business activity as a whole.
Also indicative of a possible legislative intent to preclude the type of incorporation plaintiff seeks to make is the presence of a retaliatory tax in MCL 500.476; MSA 24.1476. The retaliatory tax imposes a tax upon insurance companies of other states equal to that imposed on Michigan companies doing business in those states where the aggregate tax burden on Michigan companies doing business in those states exceeds the burden on companies of those states doing business in Michigan. Such a tax is rendered ineffectual if companies of those states may form domestic Michigan insurers which do business only in Michigan.
All of the differences in treatment, however, simply do not give authority to the Attorney General to refuse to certify the articles of incorporation. The Attorney General made his decision without granting any opportunity to the incorporators to be heard. Considerations of whether an insurance company seeks to form a sham domestic corporation merely for the purpose of receiving preferential treatment must be made by the Insurance Commissioner after providing some opportunity to the incorporators to be heard. Such serious allegations cannot be properly considered merely by a review of the articles of incorporation and a gut reaction that something suspicious is about to occur.
Upon reaching this conclusion, we determine that the writ of mandamus sought by plaintiff against the Attorney General should now issue. No writ will issue against the Insurance Commissioner because such issuance would be premature, the commissioner never having refused to do her duty. This Court anticipates that further proceedings will be conducted by the Insurance Commissioner as guided by this opinion and that of the Attorney General when, and if, plaintiff requests the Insurance Commissioner to pursue the application.
This Court cannot reach a decision on plaintiffs argument that the premiums tax on foreign insurers is unconstitutional. Any decision now would be premature.
A writ of mandamus is granted against the Attorney General.
G. R. Cook, J., concurred. | [
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R. L. Tahvonen, J.
Plaintiff appeals the trial court’s granting of summary judgment, GCR 1963, 117.2(3), to defendant. The trial court held that, on the basis of the facts and pleadings before the trial court, there was no genuine issue of any material fact and defendant was entitled to judgment as a matter of law. We affirm.
Plaintiff is engaged in the business of anodizing aluminum, a process by which a finish is applied to previously produced aluminum sheet metal. For several years, plaintiff anodized aluminum for Prime Metals, which in turn sold the treated aluminum to Avion Coach Corporation for incorporation into Avion’s trailers and motor coaches. In 1978, some of the aluminum treated by plaintiff developed a marked yellowing, because a defect in the salt used in the anodization process caused a chemical reaction upon exposure to sunlight. Needless to say, Avion was distressed at the jaundice which its lustrous silver trailers developed and informed its supplier, Prime, that the aluminum was unacceptable and would have to be replaced. Prime, in turn, informed plaintiff that it would hold plaintiff financially responsible for the cost of replacing the defective aluminum. Plaintiff agreed that its anodization treatment had caused the damages and agreed to settle the matter by having Avion set off its accounts payable to Prime and Prime set off its accounts payable to plaintiff.
When plaintiff first learned it would he held responsible for the damages, it informed its insurance carrier, defendant, of the claim; however, defendant denied liability and refused to aid plaintiff in investigating the claim. Consequently, plaintiff agreed to the aforementioned settlement with its customers. No lawsuits of any kind were ever initiated by plaintiff against Avion or Prime, or by either Prime or Avion against plaintiff. In his affidavit, plaintiff’s president alleged that defendant refused "to investigate said claim or undertake any defense of Coil Anodizers, Inc.”
The insurance contract issued by defendant provides in pertinent part:
"The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence. The company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage * * * and may make such investigation and settlement of any claim or suit as it deems expedient.”
Two other contract provisions are pertinent to this dispute. Paragraph B(c) is a condition precedent to liability and provides:
"The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation, or incur any expense other than for first aid to others at the time of occurrence.”
Paragraph C, also a condition precedent, provides:
"No action shall lie against the company unless, as a condition precedent thereto, there shall have been full compliance with all of the terms of this policy, nor until the amount of the insured’s obligation to pay shall have finally been determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant, and the company.”
Since it is undisputed that formal proceedings were never begun and defendant never formally acquiesced in the settlement arrangement, the trial judge held .that plaintiff was not "legally obligated” for the damages incurred by Prime and Avion, and that its setoff arrangement constituted a "voluntary payment” excusing defendant from liability under the insurance contract. The trial judge also held that defendant had not waived the "no action” clause so as to excuse plaintiffs noncompliance with it, since defendant had merely denied liability and refused to investigate but had not refused to defend an existing action brought against plaintiff on the claim.
The term "legally obligated” has not been construed by this Court or by the Supreme Court. Relying on Giffels v Home Ins Co, 19 Mich App 146; 172 NW2d 540 (1969), and MacDonald v State Farm Mutual Automobile Ins Co, 14 Mich App 408; 165 NW2d 665 (1968), the trial court found this term to mean an obligation established by judicial proceedings or by formal acquiescence of the insurer to the payment obligation. In Giffels the Court upheld the trial court’s finding that an insurer was not liable pursuant to a policy which provided that "the insurer shall be liable for the property of others * * * for which the assured may be liable”. The trial court found that the plaintiff-insured’s voluntary issuance of a trade acceptance to a party damaged by the plaintiff’s business practices denied the insurer an opportunity to adjust the loss with the damaged party. The voluntary settlement, made without attempting to secure a determination of legal liability, precluded the plaintiff from recovering from the insurer.
Although these cases imply that the term "legal obligation” requires either a judicial determination of liability or a settlement between the insurer, insured and the claimant, neither case expressly defines the term.
Notwithstanding the failure of any party to this dispute to obtain a judgment or initiate any formal proceedings, plaintiff contends that it incurred a "legal obligation” since, plaintiff argues, the Michigan Uniform Commercial Code, MCL 440.1101 et seq.; MSA 19.1101 et seq., entitled Avion and Prime, as aggrieved buyers, to recoup their damages by setoff against accounts payable. Since we affirm on other grounds, we do not address the question whether a voluntary setoff agreed to by an aggrieved buyer and his seller under appropriate UCC provisions constitutes a "legal obligation”. However, we do question the applicability of the UCC to this case. Generally, the UCC applies only to transactions in goods. Lorenz Supply Co v American Standard, Inc, 100 Mich App 600, 607; 300 NW2d 335 (1980). Plaintiff’s anodization process may more properly be characterized as a service than a transaction in goods.
We affirm summary judgment for defendant because of plaintiff’s noncompliance with the unambiguous conditions of liability quoted above in paragraphs B(c) and C. The language of the contract’s "no action” clause clearly contemplates that the insured’s liability to the claimant shall first be fixed by formal judgment or be formally acquiesced in by defendant as a condition precedent to recovery. Neither a judgment nor formal consent in the three-way setoff between plaintiff, Prime, and Avion was obtained here. Accordingly, plaintiff’s settlement with Prime and Avion effectively excused defendant from liability. That plaintiff may have felt a certain "compulsion” to settle in order to retain the good will of its customers does not render the settlement any less voluntary for purposes of paragraphs B(c) and C of the contract; defendant has bargained for the contractual right to contest the liability of its insured instead of having its money given away by an agreement to which it was not a party. As noted in Giffels, supra, p 151, clauses are usually found in liability insurance policies giving the insurer the right to defend and settle any claim made against its insured and prohibiting the insured from voluntarily settling any claims without the insurer’s consent. The purpose of such clauses is to prevent collusion between the claimant and the insured and to give the insurer control over settlement negotiations. In this case, plaintiffs interest in retaining the good will of its customers may have led it to settle, believing the claim to be insured, for a larger amount than defendant may have been able to obtain had defendant conducted the negotiations. In fact, defendant did not even believe the claim to be covered, since it denied liability when plaintiff first notified it.
The trial court was also correct in ruling that the allegation that defendant had refused to "undertake any defense” did not establish waiver of the "no action” clause. To show waiver, an insured must show that the insurer both denied liability and refused to defend an action brought against the insured. Elliott v Casualty Ass’n of America, 254 Mich 282; 236 NW 782 (1931); Stephens v Pennsylvania Casualty Co, 135 Mich 189; 97 NW 686 (1903). The undisputed facts show that no lawsuit was ever brought against plaintiff.
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Per Curiam.
Defendant was charged with felonious assault, MCL 750.82; MSA 28.277. The information charged the defendant with making threats to a police officer with a pocket knife. At an arraignment before the circuit judge, a plea bargain was put on the record whereby defendant was permitted to offer a plea of guilty but mentally ill to a charge of attempted felonious assault.
The guilty plea was accepted and the defendant was sentenced to a term of 1 to 2 years with the Michigan Corrections Commission, the prison commitment to include the mental health services required by the conviction of guilty but mentally ill statute. From this conviction and sentence, defendant appeals of right.
Three issues are raised in her appeal. First, defendant claims the court erred in accepting a guilty plea to a charge of attempted felonious assault.
She relies on People v Richard Banks, 51 Mich App 685; 216 NW2d 461 (1974). In Banks, this Court held that there can be no attempt to assault and that it was reversible error to charge a jury with such a "crime”.
While not an issue in the Banks case, the Court, in a footnote, suggested:
"A corollary error is created when prosecutors accept guilty pleas to the nonexistent offense of attempted felonious assault. We are aware of People v Milton, 36 Mich App 702; 194 NW2d 1 (1971), but reject any intimation from this decision that a crime of attempted felonious assault exists which may be charged by the prosecutor in his discretion. In the future prosecutors must refrain from bargaining for guilty pleas to this nonexistent offense which could not be charged in the first instance.” Id., p 690, fn 8.
Dissenting from his colleagues in Banks, Judge Brennan stated at page 692: "Prudence demands that in the future trial courts should refrain from charging on an attempted assault situation.”
In the instant case, the prosecutor disregarded the advice of Banks and the trial court proceeded to accept a guilty plea to the charge agreed upon between the prosecution and defense. The issue here is whether this constituted reversible error.
We hold that it was not reversible error. Unlike the case here, Richard Banks was convicted at a jury trial in which the charges of felonious assault and of attempted felonious assault were submitted to the jury. Here, defendant freely tendered a guilty plea, pursuant to a plea bargain. Hence, the cases, despite the admonitions found in the dicta in People v Banks, are simply not comparable.
More on point is People v Hooper, 58 Mich App 132; 227 NW2d 250 (1975), in which the defendant pled guilty to a bargained-for charge of attempted uttering and publishing. In response to defendant Hooper’s claim of reversible error because the trial court accepted his plea to "an offense not proscribed by law”, this Court stated at pages 133-134:
"First, the contention should be, and we hope is, consigned to oblivion. The idea that one who makes a bargain for his own benefit can be released from that bargain because what he bargained for is a non-existent crime is repugnant to any sense of justice, fairness and common sense. If the language, 'shall affirmatively appear that the error complained of has resulted in a miscarriage of justice’, of MCLA 769.26; MSA 28.1096 has any meaning left, it surely applies to the contention now before us, and we so hold.”
While we do not retreat from disapproval of such made-for-bargain charges, any detriment runs to the people and the benefit runs to the defendant. Defendants should not complain when they receiye precisely what they bargained for. No prejudice is shown and no reversible error is found.
The second issue on appeal is a claim that the trial judge imposed sentence without an up-to-daté presentence report. Plaintiff is correct that a felony sentence is to be imposed only after the judge has reviewed a current presentence report and that the requirement cannot be waived. People v Brown, 393 Mich 174; 224 NW2d 38 (1974); People v McDonald, 99 Mich App 150; 297 NW2d 639 (1980).
Contrary to defendant’s claim, however, the record clearly shows that the trial judge did use a current presentence report. The trial judge stated:
"I am in receipt of a probation report on another matter which is updated, and with your consent, Mr. Yura, I can impose sentence in both cases.”
Defense counsel responded:
"I’ve had the opportunity to read that report, and I’m satisfied with it, your Honor.”
Thus, compliance with the requirement concerning presentence reports is shown.
The final issue on appeal is that the court erred in disposing of another charge against the defendant, attempted burning of personal property over $100, in the same proceeding.
The record indicates that the clerk called two cases involving the defendant, Docket Nos. 80-045 033-FZ and 81-103 936-FA. It was to the latter charge, felonious assault, that the court accepted the plea to attempted felonious assault on June 15, 1981.
The only references in the record to the attempted burning charge are the trial court’s reference to the updated probation report "on another matter” and the indication that the sentences it imposed will run concurrently.
It is not clear from the record whether the attempted burning charge was before the court for arraignment, sentencing on the basis of an earlier conviction, or was a probation violation matter. Without such information, appellate review is not possible.
This matter is affirmed as to defendant’s attempted felonious assault conviction. It is remanded to the trial court for further proceedings to complete the record regarding the sentence for attempted burning.
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D. E. Holbrook, Jr., J.
Plaintiffs appeal as of right from the judgment of the Court of Claims finding that all claims against the defendant be dismissed based on the defense of governmental immunity.
In July, 1978, a cave-in occurred along a portion of US 41 in the City of Hancock. Herman Gundlach, Inc., was hired by the Department of State Highways to repair the road. Robert Ovist (plaintiff hereinafter), who was employed as a laborer with Herman Gundlach, Inc., was engaged in the repair work when another cave-in occurred. He sustained serious injuries. Plaintiffs filed a five-count complaint alleging several theories of recovery based upon negligence, careless, reckless, and wanton misconduct, and nuisance.
Defendants filed a motion for accelerated judgment on the basis of governmental immunity and also filed a motion for partial summary judgment claiming that defendant’s duty under MCL 691.1401 et seq.; MSA 3.996(101) et seq., applies only to persons traveling on a public roadway. Defendant also asserted that claims for derivative losses were not cognizable under the governmental liability statute, and further, claimed the protection of the Worker’s Disability Compensation Act. From the Court of Claims order of dismissal, plaintiffs raise five issues on appeal.
Plaintiffs first argue that the court erred in ruling that their sole remedy was under the Worker’s Disability Compensation Act. In granting defendant’s motion for partial summary judgment under GCR 1963, 117.2(1), the trial court found that plaintiff’s exclusive remedy was under the Worker’s Disability Compensation Act, MCL 418.101 et seq.; MSA 17.237(101) et seq., because he was engaged in an employment activity at the time of his injury.
The purpose of a motion for summary judgment based on GCR 1963, 117.2(1) is to test the complaint to determine whether a plaintiff has pled facts which support a cause of action. The scope of the examination is confined to the pleadings; factual allegations of the complaint are taken as true, along with any inferences and conclusions which may fairly be drawn from the facts alleged. Rubino v Sterling Heights, 94 Mich App 494; 290 NW2d 43 (1979). While an employee’s exclusive remedy against his employer is under the workers’ compensation act, MCL 418.131; MSA 17.237(131), the act does not foreclose an employee from bringing suit against a third-party tortfeasor for injuries sustained in the course of his employment. MCL 418.827(1); MSA 17.237(827)(1); Stafford v E W Bliss Co, 86 Mich App 197; 272 NW2d 237 (1978). Plaintiff seeks to recover from defendant as the owner and possessor of the highway and not as his employer. Accordingly, to the extent that the Court of Claims found that defendant could rely on the exclusivity provision of the Worker’s Disability Compensation Act, the court’s finding was erroneous.
Plaintiffs next contend that the court erred in finding that the maintenance and repair of a highway constituted a governmental function. The question of law on this issue is whether defendant’s activities constitute a governmental function entitled to governmental immunity from tort liability under MCL 691.1407; MSA 3.996(107). This statute provides:
"Sec. 7. Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.”
The term "governmental function” is not defined in the statute. Of necessity, the determination of which activities may be classified as governmental functions is a task left to the courts by the Legislature. Keenan v Secretary of State, 103 Mich App 82; 302 NW2d 602 (1981). The Supreme Court is split on the interpretation of this statutory term, usually deciding whether particular activities are governmental functions on a case-by-case basis. In Thomas v Dep’t of State Highways, 398 Mich 1, 12; 247 NW2d 530 (1976), Chief Justice Coleman and Justice Ryan concurred with Justice Williams’ common-law analysis that the repair and maintenance of highways is a governmental function under the statute and that, as a result, the defense of governmental immunity is available to the state highway department. Conversely, using the "of essence to governing” test, Justices Kavanagh, Fitzgerald and Levin have disagreed. Thomas, supra, 21. Therefore, Justice Moody’s position on governmental immunity is the key to understanding how the Supreme Court would resolve this issue. On the basis of Justice Moody’s decisions in Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978), and Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978), we conclude that the maintenance and repair of a highway constitutes a governmental function.
The repair and maintenance of public highways present factors that would make such activity governmental under Justice Moody’s broader statement of the governmental essence test. The government plays a pervasive role in the laying out, construction, improvement, and maintenance of highways, bridges, and culverts. See Const 1963, art 7, § 16. It has appropriated substantial state funds for these purposes and has declared the safety of the traveling public as a public policy. See MCL 247.651 et seq.; MSA 9.1097(1) et seq. The number of private roads is inadequate to meet the transportation needs of the public. While private roads exist for the use of some persons, the provision of a comprehensive network of highways is a uniquely governmental function. Finally, the maintenance of a statewide highway system is an activity of such public importance and magnitude, in terms of cost, coordination of efforts, and prioritization of expenditures, that it can be effectively carried out only by the government. See Davis v Detroit, 98 Mich App 705; 296 NW2d 341 (1980). Safe public highway transporation obviously cannot be carried out without the repair and maintenance of highways. Therefore, we find that the trial court was correct in finding that the defendant was engaged in a governmental function and, thus, entitled to raise the defense of governmental immunity.
We decline to follow the dicta in the majority opinion of Lucchesi v Kent County Road Comm, 109 Mich App 254; 312 NW2d 86 (1981), which found that the construction and maintenance of roads within a county road network is not a uniquely governmental activity under the Perry and Parker standards. Our reasoning agrees with Judge Mackenzie’s remarks in her dissent that the maintenance and repair of roads is an activity of such magnitude and importance that it can only be effectively carried out by the government.
To this general grant of immunity, the Legislature has enacted an exception for the negligent maintenance of highways. MCL 691.1402; MSA 3.996(102). Plaintiffs assert that the trial court erred in finding that they could not bring an action under this exception because Mr. Ovist was injured while repairing the highway. Plaintiffs contend, based on Mechay v Detroit, 364 Mich 576; 111 NW2d 820 (1961), that the reference to public travel contained in the statute is not a restriction upon the persons to whom the duty is owed but, rather, defines the standard by which the duty is measured: to "maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel”. Defendant relies on the cases of Thomas, supra, and Michigan Power Co v Michigan, 97 Mich App 733; 296 NW2d 166 (1980), in support of its contention that the injury must result from the use of a highway to be cognizable under the highway maintenance exception.
MCL 691.1402; MSA 3.996(102) states, in part:
"Sec. 2. Each governmental agency having jurisdic tion over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency. * * * The duty of the state and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel.” (Emphasis supplied.)
Since conditions of the state’s liability are questions for the Legislature, it is not the proper function of the courts to limit or to enlarge clear statutory provisions by construction. Endykiewicz v State Highway Comm, 102 Mich App 662; 302 NW2d 271 (1981), lv gtd 411 Mich 1035 (1981). Section 2 clearly indicates that recovery is allowed for any person sustaining bodily injury or for property damage. The use of the adjective pronoun "any” prior to "person” means, in ordinary understanding, every person. The word negates the idea of exclusion. Dale v Whiteman, 388 Mich 698; 202 NW2d 797 (1972). The reference to "reasonably safe and fit for travel” contained in the statute is a statement of the state’s duty. Peters v Dep’t of State Highways, 400 Mich 50, 58; 252 NW2d 799 (1977). Section 2 limits recovery to persons injured by reason of the state’s breach of this duty. Nowhere in the statute is there a limitation upon the persons to whom the duty is owed. We will not read into the statute a requirement that, before there can be any recovery, plaintiff must show that his injury arose out of the use of a public highway for travel.
Defendant’s reliance on Thomas, supra, and Michigan Power Co, supra, is misplaced. In Thomas, the decedent was killed while engaged in widening a highway and was not killed by reason of the state’s failure to keep an existing highway "in reasonable repair, and in condition reasonably safe and fit for travel”. Further, since the decedent was killed when tunneling "under a railroad right-of-way”, he was not killed as a result of the defendant’s failure to maintain an "improved portion of the highway designed for vehicular travel”. Thus, the Supreme Court’s holding that the highway maintenance exception did not apply can be explained by the fact that the accident was not caused by reason of the highway department’s negligent maintenance of an existing highway.
In Michigan Power Co, Barbara Dutoi was severely burned as a result of a fire which was caused by a break in an underground gas line owned and maintained by the plaintiff. The gas escaped from the line and entered Ms. Dutoi’s home causing an explosion when she lit a cigarette. Plaintiff utility company brought an action in the Court of Claims for contribution and/or indemnity for any sums adjudged against it as a result of a circuit court proceeding initiated by Ms. Dutoi. In its complaint, the plaintiff alleged that the injury to Ms. Dutoi fell within the highway maintenance exception to governmental immunity. The Court of Claims granted summary judgment in favor of the State of Michigan. On appeal, a panel of this Court affirmed and held that plaintiff had failed to allege sufficient facts showing that Ms. Dutoi was injured as a result of the negligent maintenance or use of a highway. The Court stated:
"It is conceded by plaintiff that the injured person, Barbara Dutoi, was not using the public highway for traveling purposes at the time of the incident. She was in a home located off the highway right-of-way. There was no allegation that the highway was not in reasonable repair and not in condition reasonably safe and ñt for travel. Plaintiff made reference to the fact that the gas could have accumulated under the roadway and exploded thereby rendering the roadway unsafe. This was mere speculation. There were no injuries or damages caused by traveling on the road. The explosion was in the home. The defect was not in the road. ” (Emphasis added.) Michigan Power Co, supra, 735.
In ruling that the plaintiff had failed to allege sufficient facts in avoidance of governmental immunity, the Court noted that the injured party had not been using the public highway at the time of the injury but also noted that there was no allegation that the highway was not in reasonable repair and not in a condition reasonably safe and fit for travel. Contrary to defendant’s contention, the Court did not state that recovery under the statute would be limited to persons injured as a result of the use of a highway.
In this case, it is undisputed that the defendant breached its duty to maintain the highway in "reasonable repair, and in condition reasonably safe and fit for travel”. However, this duty extends only to "the improved portion of the highway designed for vehicular travel”. In their complaint, plaintiffs alleged that the defect occurred in the traveled portion of the highway. Since plaintiffs are not precluded from raising the highway maintenance exception to governmental immunity simply because Mr. Ovist was not injured as a result of use of a highway, the trial court erred in granting accelerated judgment on this ground. Plaintiffs have pled facts which support a cause of action cognizable under § 2. However, at trial plaintiffs must still prove that Mr. Ovist’s injuries were caused by defendant’s breach of its statutory duties.
Plaintiffs next assert that MCL 691.1402; MSA 3.996(102) creates a right to sue for derivative damages. This issue has been addressed by a panel of this Court in Endykiewicz v State Highway Comm, supra. In Endykiewicz, the Court distinguished Salvati v Dep’t of State Highways, 92 Mich App 452; 285 NW2d 326 (1979), and held that damages for loss of society and companionship are not recoverable under the statute in question. We agree with the holding in Endykiewicz and find that the Court of Claims did not err in dismissing the claim for derivative damages.
Lastly, plaintiffs argue that their complaint sufficiently alleged nuisance so that governmental immunity was inapplicable. We disagree.
In Rosario v Lansing, 403 Mich 124; 268 NW2d 230 (1978), and Gerzeski v Dep’t of State Highways, 403 Mich 149; 268 NW2d 525 (1978), the Supreme Court reached no clear majority view in addressing the impact of the nuisance doctrine on governmental immunity. However, a cautious reading of these cases persuaded a panel of this Court to conclude that a claim of governmental immunity is defeated where there exists either an intentionally created or continued nuisance in fact or the maintenance of a nuisance per se. Ford v Detroit, 91 Mich App 333; 283 NW2d 739 (1979). The present facts do not fit within the definitional framework of a nuisance per se.
Plaintiffs’ pleadings must be liberally construed to determine whether their complaint sufficiently alleges an intentional nuisance in fact to avoid summary dismissal. Taggie v Dep’t of Natural Resources, 87 Mich App 752; 276 NW2d 485 (1979). The complaint contains allegations that defendant owed plaintiffs a variety of common-law and statutory duties and that such duties were breached. It also contains a bare allegation that defendant’s conduct was "wilful and wanton”. However, this statement is conclusory in nature and plaintiffs have not alleged supporting facts which would indicate that the defendant intended to bring about conditions which could, in fact, be found to be a nuisance. Since plaintiffs’ allegations sound in negligence, their complaint did not sufficiently allege a nuisance within an exception to governmental immunity. Accordingly, we find that the court properly dismissed plaintiffs’ nuisance claim. See Scott v Detroit, 107 Mich App 194; 309 NW2d 201 (1981).
In conclusion, we hold that the court’s grant of accelerated judgment for defendant on the ground of governmental immunity was improper under the highway maintenance exception. We remand for trial on this allegation. Plaintiffs are not precluded from bringing suit under the exclusivity provisions of the Worker’s Disability Compensation Act. The Court of Claims order of dismissal in all other respects was proper.
Affirmed in part, reversed in part, and remanded.
N. J. Kaufman, J., concurred. | [
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S. T. Finch, J.
Facts
The plaintiff-appellant Calvary Presbyterian Church (hereinafter referred to as the Church) was begun in 1941 as a mission of the First Presbyterian Church of Flint. In 1944, the members of the mission organized themselves as the Calvary Presbyterian Church of Flint, an ecclesiastical corporation, agreeing to "worship and labor together according to the disciplines, rules and usage of the [United] Presbyterian Church in the United States of America [represented here by our defendant, hereinafter known as the Denomination] as from time to time authorized and declared by the General Assembly”. (Articles of Incorporation.)
Later, the Church formed a building committee, and in raising funds took a loan from the Denomination and gave a mortgage on the real estate as security. Upon repayment, the Denomination deeded the real estate back to the Church.
Still later, in the seventies, a majority of the members of the Church became unhappy with the evolving social and political activities and policies of the Denomination, believing that these activities and policies were contrary to the underlying founding tenets of the Presbyterian faith. In essence, the Church felt that the Denomination had gone astray, and therefore began to consider seceding from the Denomination, accompanied by the real estate. The Denomination was notified of the plans of the Church to hold a meeting to vote on the withdrawal and, according to the procedures set forth in the Book of Order (the rules of the Denomination), established an Administrative Commission to replace the Session and take over the governing of the Church and its property.
The Church filed this action asking for declaratory relief as to the ownership of the real property and injunctive relief in the interim to prevent the Denomination from acting to interfere with the Church’s withdrawal. Each party petitioned the court to restrain the other from acting. The court issued an order allowing both the Church and the Administrative Commission to meet and make decisions, but restrained them from acting on these decisions. The Church met and voted 287 to 26 to secede from the Denomination. Those members continued to worship together and use the name Calvary Presbyterian Church, but terminated their relationship with the Denomination and have affiliated with another denomination, the Evangelical Presbyterian Church. Under the aegis of the Administrative Commission, the loyal minority continues to worship as a church body under the authority of the Denomination.
Subsequently, the matter was tried by the court, which eventually ruled in favor of the Denomination, making a finding that the Denomination had been judicially determined to be hierachical in Jones v Wolf 443 US 595; 99 S Ct 3020; 61 L Ed 2d 775 (1979), and then, following the standard set forth in Bennison v Sharp, 121 Mich App 705; 329 NW2d 466 (1982), lv den 417 Mich 1100.13 (1983), declared that the property was indeed held in an implied trust for the Denomination and that the Church was not the beneficial owner, despite the unqualified language of the deed. It is from this decision that the Church appeals.
In equity cases, this Court reviews de novo but we will not reverse the trial court unless we are convinced that the court’s findings are clearly erroneous, Coffee-Rich, Inc v Dep’t of Agriculture, 1 Mich App 225, 228; 135 NW2d 594 (1965), or we would have reached a different result had we occupied the court’s position. Thom v Rasmussen, 136 Mich App 608, 612; 358 NW2d 569 (1984); Cascade Twp v Cascade Resource Recovery, Inc, 118 Mich App 580, 584; 326 NW2d 500 (1982).
Law & Discussion
The issue is narrow: Did the trial court err in applying the principles of Bennison, supra, to this dispute?
We hold that it did not. In our de novo review of the entire record, we find ample evidence to support the trial court’s findings that the Denomination was a hierarchical church, and that therefore the principles of Bennison do apply. Since we would not have reached a different result, we find no reason to disturb the conclusions of the trial court, and no reason to depart from the reasoning of this Court as enunciated in Bennison rejecting the use of the "neutral principles” test to determine church ownership in the event a church withdraws from a hierarchical denomination.
I
The Church contends that the lower court should have applied the "neutral principles” test, as permitted by Jones, supra, to the dispute, and asks this Court to do so, arguing that Bennison does not apply because the Denomination in fact is neither strictly hierarchical nor strictly congregational, in that the power of the governing body flows upwards to it from the individual church members. The Church has argued that the traditional method of classifying churches as either congregational or hierarchical is, therefore, insufficient for analysis of this case. Thus, the Church reasons, since the members of this Presbyterian denomination have given the power to the Denomination, which governs in a representative fashion, it should not be considered a true hierarchy and allowed to adjudicate its own disputes internally. This analysis fails when we analogize to our own national government. It is certainly one in which power is granted to the government by the people, but once granted, that representative government then has whatever power the law gives it — unless and until the law is changed. The people cannot refuse to follow duly enacted laws or executive decisions because they feel the current government is not true to the tenets of the founding fathers or the current electorate. We can only work to replace, through election, the current members of government with those holding beliefs more acceptable to us, and hence willing to enact laws and policies more agreeable to us.
In its supplement to the brief, the Church calls the Court’s attention to the decisions of Presbytery of Elijah Parish Lovejoy v Jaeggi, 682 SW2d 465 (Mo, 1984), cert den — US —; 105 S Ct 2361; 86 L Ed 2d 262 (1984), and First Presbyterian Church of Schenectady v United Presbyterian Church in the United States of America, 62 NY2d 110; 464 NE2d 454 (1984). In both of these cases, the appellate courts of sister states have considered Jones, supra, and have applied the neutral principles test to this denomination, without reference to the criteria of hierarchical/congregational structure. As set out in Presbytery of Beaver-Butler of the United Presbyterian Church in the United States v Middlesex Presbyterian Church, 507 Pa 255, 263-264; 489 A2d 1317 (1985), at least nine states by now have adopted this method of determining nondoctrinal disputes in hierarchical churches, reasoning that disputes over property are different than doctrinal disputes and may and should be resolved outside church hierarchy.
We see no reason in this case to follow our sister states away from the clear law of this state as pronounced in Bennison. Despite the Church’s arguments to the contrary, it is clear that this Presbyterian denomination is hierarchical and that the church government had the agreed and declared power to act as it did in replacing the Session with the Administrative Commission and in determining that the seceding Church could not take the real estate with it.
"Thus, under the polity theory, when a subordinate congregation or a faction thereof secedes from a hierarchical church, it has no right to retain church property where the governing body of the general church has determined it is no longer the congregation or its legitimate successor for which the property was originally purchased or obtained.’’Bennison, supra, p 715.
The courts should not look behind the veil of the authority of the internal governmental structure of the Denomination. We find that it would be inappropriate to apply the neutral principles test to determine disputes between people who have agreed, as a part of the establishment of their church, to resolve disputes between themselves within their internal power structure.
Times change, and it must be presumed that the original agreement to be bound by the Denomination’s decisions included the possibility that the local Church might not agree with all those deci sions. In this case the Denomination apparently changed its outlook and policies between 1941 and 1980. The majority of the members of the Church did not. They were free as individuals to leave the Denomination, but not to depart from the "rules” which the Church had originally agreed to abide by, one of which was that the Denomination could supersede the Church’s powers to govern itself by replacing its governing Session in the event of a dispute and that the Administrative Commission could determine to keep the real estate in the possession of the Denomination to the use of the nondeparting members.
Therefore, we hold that the trial court correctly found that the Denomination is hierarchical even though it possesses a representative form of government, that the decisions of that government (here, the Presbytery) are not reviewable by the state and thus the decision of the Denomination to retain the real estate upon the withdrawal of the Church is binding upon the counts.
II
The Church further argues that the Denomination is estopped from now asserting an implied trust in the real estate when, in the mid-seventies, it allowed the Church, without dispute, to sell a house similarly held. The trial court did not find, nor do we, that this created an estoppel. The fact that the Denomination did not interfere with the actions of the Church in regard to that piece of property does not forestall it from now, during this doctrinal division, asserting its right to claim and retain ownership of the remaining Church property.
Result
For all these reasons, the findings of fact and law contained in the opinion of the trial court of February 28, 1983, and its judgment of June 20, 1983, are affirmed.
Affirmed.
It should be noted that this sort of situation was developing with some frequency elsewhere, both in this Denomination and others, since, in Presbyterian Church in the United States v Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 US 440; 89 S Ct 601; 21 L Ed 2d 658 (1969), and in Jones v Wolf, 443 US 595; 99 S Ct 3020; 61 L Ed 2d 775 (1979), the Supreme Court had departed from a longstanding rule on how church disputes are decided. These new decisions created the possibility that a church which secedes from a hierarchical denomination might have the right to take real estate with it if titled in fee simple to the church. Because of this trend, the Denomination had begun to move toward requiring that all local real estate be held in express trust for the Denomination. Prior to these cases, the rule, without exception, was that if a denomination had a "hierarchical” structure, the civil law would not interfere in its affairs, and would defer to the authority, regularly exercised, of the higher office of the denomination to determine matters in dispute and to control church real estate under a theory of implied trust. Then, if the majority of the members of a church exercised their freedom to withdraw, the property would stay with the denomination, if the denomination chose to keep it. The only question under this rule is whether a denomination is organized in a hierarchical structure with a central governing body which has regularly acted within its powers, or whether it is organized in the looser "congregational” structure, with all governing powers and property ownership remaining in the individual churches.
Session is the term used to denote the equivalent of the Board of Directors of the Church corporation.
The Church never attempted to appeal this action of the Presbytery through the Denomination’s ascending chain of government (the judicatories), either before or after it affiliated with another denomination, the Evangelical Presbyterian Church, at which point it lost its rights of membership in the Denomination, including access to administrative remedies.
In using the so-called "neutral principles” test, the court applies the same principles of law as would be applied to nonreligious organizations and therefore will not declare an implied trust based solely on deference to the authority and rules of the denominational hierarchy.
At the time the Church included Presbytery of Elijah Parish Lovejoy v Jaeggi in its supplement, the case had been decided by the Missouri Court of Appeals (Docket No. 46810, decided January 31, 1984) and was on appeal to the Missouri Supreme Court, which has since reached the same conclusion.
According to witness Richard J. Heidtman, one of the withdrawing elders, the property of the Church should not have been sold without the approval of the Denomination. Although he believed this to be true only so long as the Church remained affiliated with the Denomination, there is no authority shown for this limitation on the power of the Denomination in the governing documents. | [
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Per Curiam.
Following a bench trial, the defendant was convicted of armed robbery, in violation of MCL 750.529; MSA 28.797, assault with intent to murder, in violation of MCL 750.83; MSA 28.278, and possession of a firearm in the commission of a felony, in violation of MCL 750.227b; MSA 28.424(2). Defendant appeals by right.
Defendant’s convictions stem from a restaurant robbery and hostage-taking incident. Inside the restaurant, the defendant pulled a gun from his pocket, seized the manager, and demanded all of the money in the restaurant. Throughout this episode, several res gestae witnesses later testified that the defendant repeatedly said, "I will go to jail for murder, but not robbery”. After the robbery was over, the defendant seized one of the restaurant’s employees as a hostage and began to drag him toward the door while simultaneously placing the gun at his head. The defendant was then heard to say, "I’m not going to hurt you”, but on their way out the door, the gun discharged, injuring the hostage.
On appeal, the defendant argues that the evidence presented by the prosecution does not establish that the defendant intended to shoot, much less murder, his hostage. Therefore, the defendant alleges that his conviction for assault with intent to commit murder was erroneous.
Assault with intent to murder is a specific intent crime. People v Triplett, 105 Mich App 182, 187; 306 NW2d 442 (1981); People v Fields, 64 Mich App 166, 173; 235 NW2d 95 (1975). The two elements of the offense which must be proven at trial consist of: (1) an assault; and (2) an intent by the defendant to murder the complainant at the time of the assault. People v Tait, 99 Mich App 19, 22; 297 NW2d 853 (1980). Defendant concedes that the evidence establishes the element of assault, therefore the only dispute is whether the prosecutor proved that the defendant intended to murder his hostage.
The appeal on this issue challenges both the sufficiency and the weight (credibility) of the evidence pertaining to the defendant’s intent to commit the murder. Sufficiency is determined by whether each element of the offense has been established and supported by the evidence. Credibility is based upon whether the trier of fact believes the evidence before it.
In People v Hampton, 407 Mich 354; 285 NW2d 284 (1979), the Michigan Supreme Court formulated the standard of review for challenges to the sufficiency of the evidence. An appellate court must view the evidence in the light most favorable to the prosecutor and then determine whether there was sufficient evidence of each element of the offense so that a rational trier of fact could conclude that the defendant was guilty beyond a reasonable doubt. Id., 368. In this case, we find that the prosecution introduced competent evidence which indicated that the defendant intended to murder his hostage. Testimony from res gestae witnesses indicated that the defendant repeatedly stated that he preferred to be punished for murder instead of robbery. The defendant seized a hostage even though his escape route was unimpeded and pointed a gun at the hostage’s head. Lastly, there was testimony that the defendant shot his hostage in order to prevent him from escaping. If credible, this evidence was sufficient to establish the requisite intent to commit murder.
Defendant contends that the prosecutor’s evidence of intent was insufficient because it was refuted by competent defense evidence. Defendant misunderstands the difference between the credibility and the sufficiency of evidence, which are two separate issues. We have already stated that there was sufficient evidence to establish the defendant’s intent to commit murder. The question of whether the verdict is against the great weight of evidence is not properly before this Court because the defendant did not preserve this issue for appeal by filing a motion for a new trial. People v Cage, 83 Mich App 534, 538; 269 NW2d 213 (1978); People v Flippo, 70 Mich App 652, 660-661; 247 NW2d 321 (1976).
Defendant also argues that the trial court erred in considering his defense of diminished capacity. Defendant maintains that the presence or absence of mental illness is separate from the presence or absence of legal insanity but that the trial court considered both as the same issue.
The Legislature codified Michigan law on insanity in MCL 768.21a; MSA 28.1044(1), which states in pertinent part:
"(1) A person is legally insane if, as a result of mental illness as defined in * * * section 330.1400a of the Michigan Compiled Laws, * * * that person lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.”
"Mental illness” is defined as a "substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life”. MCL 330.1400a; MSA 14.800(400a).
As this Court stated in People v Fultz, 111 Mich App 587; 314 NW2d 702 (1981), insanity and mental illness are separate defenses with different consequences. This Court observed:
"The very definition of legal insanity contained in MCL 768.21a; MSA 28.1044(1), refers to the term 'mental illness’. Insanity by definition is an extreme of mental illness. When a person’s mental illness reaches that extreme, the law provides that criminal responsibility does not attach. To put it alternatively, the statutes provide that all insane people are mentally ill but not all mentally ill people are insane.” Id., 590.
Thus, if a defendant is found to be mentally ill, he may be found not guilty, guilty but mentally ill, or, if he lacks substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law, not guilty by reason of insanity. People v Girard, 96 Mich App 594, 597; 293 NW2d 639 (1980).
We find that the trial judge failed to adequately consider the verdict of guilty but mentally ill, as provided by MCL 768.36(1); MSA 28.1059(1). The trial judge used the terms "insanity” and "mental illness” interchangeably and defined mental illness with the legal definition of insanity.
There is a three prong test for determining whether a defendant who has asserted the defense of insanity may be found "guilty but mentally ill”. To reach a verdict of "guilty but mentally ill”, the trier of fact must find all of the following beyond a reasonable doubt:
"(a) That the defendant is guilty of an offense.
"(b) That the defendant was mentally ill at the time of the commission of that offense.
"(c) That the defendant was not legally insane at the time of the commission of that offense.” MCL 768.36(1); MSA 28.1059(1).
It is clear that the trial judge found that the defendant was guilty of the offense charged and that he was not insane at the time of the commission of the offense. Thus, the first and third prongs of the test enunciated in MCL 768.36(1); MSA 28.1059(1) were applied. It is unclear whether the trial judge used the proper legal standard in determining mental illness under the second prong of this test. Therefore, we remand this case for further findings of fact, pursuant to GCR 1963, 810, said findings to be filed with this Court within 60 days from the date of the release of this opinion. We retain jurisdiction.
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Per Curiam.
Plaintiffs-appellants appeal as of right from a judgment of no cause of action rendered on December 15, 1981, following a bench trial.
Lloyd Sabin and Mary A. Sabin had been married 40 years and had two children, Jess Sabin, defendant herein, and Kenneth Sabin. Kenneth Sabin died, leaving two children, Mary Lou Scheiber and Cynthia Sabin, plaintiffs herein. On February 5, 1972, Lloyd and Mary executed identical inter vivos trust agreements. Mary named Lloyd, Jess, and herself as co-trustees. Mary Sabin became mentally incompetent in 1975 and was confined to a rest home until her death on April 13, 1978. Between May 5, and September 30, 1975, Lloyd Sabin removed cash assets approximating $130,000 from the corpus of both trusts and opened five joint bank accounts with Jess Sabin. On September 9, 1977, Lloyd Sabin removed approximately $80,000 from the trusts and opened five more joint bank accounts with Jess Sabin. Real estate approximating $80,000 was left in Mary Sabin’s trust. Lloyd Sabin died on February 7, 1978. Mary Sabin died approximately two months later on April 13, 1978.
Each trust agreement provided that upon the death of both Lloyd and Mary, the corpus of the estate was to be divided in two equal shares, one share to Jess Sabin and one share to the heirs of the settlors’ deceased son, Kenneth; namely, plain tiffs herein. On June 7, 1978, plaintiffs filed a complaint against defendant, alleging a breach of loyalty as trustee and praying for an accounting and for the removal of defendant as trustee. Plaintiffs amended their complaint on September 14, 1978, by adding an allegation that defendant exercised undue influence over Lloyd Sabin. The trial court entered an order denying defendant’s motion to strike plaintiffs’ demand for a jury trial on the issues of undue influence and damages. The Court of Appeals, in an unpublished order, upheld the trial court’s denial of defendant’s motion, and on November 12, 1981, the jury found that defendant did not exercise undue influence over Lloyd Sabin. Arguments on the equitable issue of breach of trust were held on December 15, 1981. The trial court issued a written opinion on December 15, 1981, finding that defendant did not breach his fiduciary obligation as trustee of either Lloyd’s or Mary’s trust.
On appeal plaintiffs argue that defendant was under a fiduciary obligation to administer the assets of the two trusts for the benefit of the settlors and the children of the settlors after their deaths, that defendant breached his fiduciary obligation to Mary A. Sabin by becoming part of a procedure whereby co-trustee Lloyd Sabin removed cash assets from both trusts and deposited them in joint bank accounts with himself and defendant, and that defendant thus became a direct beneficiary of a substantial part of the trust corpus to the detriment of the other beneficiaries and allowed the funds which were to be used for the care and comfort of the settlors to be exposed to outside claims and did not communicate with the other beneficiaries or seek outside advice.
Defendant answered, contending that each trust was an inter vivos trust which could be revoked in whole or in part at any time by the settlor Lloyd Sabin, that the testimony at trial showed that defendant did nothing more than to sign the account cards when his father approached him and told him he was withdrawing funds and wanted him (Jess) to sign the transfer cards, that defendant did in fact provide for his mother’s care during the two months his mother lived following Lloyd’s death and that, although ¶ 1-1.1 of the trust agreement required a written notice delivered to the trustee of any revocation or amendment to the trust agreement, the co-trustee could waive such requirement.
This Court reviews de novo cases, such as the present case, which are equitable in nature. The trial court’s findings of fact shall not be disturbed on appeal unless clearly erroneous, however, and due deference shall be given to the trial court’s opportunity to judge the credibility of the witnesses. Detroit Bank & Trust Co v Groupt, 95 Mich App 253, 267-268; 289 NW2d 898 (1980). A donor, or settlor, may establish a trust naming himself as trustee and receive the income generated by the principal held for the benefit of another. Osius v Dingell, 375 Mich 605, 614; 134 NW2d 657 (1965). A settlor may also reserve the right to use or dispose of the corpus of a trust. Goodrich v City National Bank & Trust Co of Battle Creek, 270 Mich 222, 228; 258 NW 253 (1935).
In addition to providing that the settlor may revoke or amend the agreement at any time, each agreement provides that when more than one person serves as trustee, any one of them may exercise any power and authority of the trustee. Similarly, each agreement provides that during the life of the donor, the trustee shall pay all of the net income of the trust to the donor, or to whomever the donor directs in writing, and that the trustee shall pay any part of the principal of the trust as the donor directs in writing. (Trust Agreement, Art II, 2.1).) Finally, the trust agreements provide that where the trustee is of the opinion that the donor is incapable of managing his or her affairs, the trustee may, in his discretion, pay or use the amount of income and principal from the trust necessary for the donor’s support, comfort, and welfare.
Although defendant owed a duty of good faith as a co-trustee of both trusts in dealing with the beneficiaries of the trust, Sloan v Silberstein, 2 Mich App 660, 673; 141 NW2d 332 (1966), neither trust agreement required defendant to give notice to beneficiaries of trust changes. After Mary Sabin became incompetent in 1975, the "trustee” was Lloyd and Jess Sabin. Under the terms of the trust agreements, when more than one person was serving as trustee, any one of them could exercise any power or authority of the trustee. Further, the trustee was required to pay any part of the principal of the trust as directed in writing by the donor.
The trial court found, and the record supports the court’s findings, that the transfers were not made by defendant but were made by Lloyd out of accounts which were accessible to him as owner or joint owner of the accounts with Mary. The attorney who drew the trusts testified that Lloyd made the transfers for the express purpose of decreasing the amount which otherwise would go to plaintiffs, whom Lloyd felt were money hungry. After the transfers were made, Lloyd used the income from the newly established accounts for Mary’s care. After Lloyd’s death, defendant used the income from the new accounts to the extent necessary for Mary’s care until her death. Under these circumstances and in view of the powers conferred under the trust agreements, we find no breach of trust. Certainly, we are unable to dub the trial court’s findings clearly erroneous. Detroit Bank & Trust, supra.
The only problem we perceive in the instant situation is whether Lloyd Sabin’s failure to submit his intentions in writing to Jess Sabin as technically called for in ¶ I of the trust agreements (see fn 1) rendered the transfers ineffective. The question presented is of first impression. While a trustee owes the duty to itself and to the settlor to insist on strict compliance with revocation requirements provided in a trust agreement, Hackley Union National Bank v Farmer, 252 Mich 674, 682; 234 NW 135 (1931), we opine that Lloyd Sabin properly withdrew the trust funds despite noncompliance with the writing requirement. The purpose of the notice of intent in writing was for the benefit of the trustee. The necessity of such writing, however, is not apparent in light of the fact that the settlor in the present case was also a co-trustee with full powers of the trustee. While no Michigan court has addressed this specific issue, other courts have held that a valid revocation or withdrawal from a trust estate is accomplished where the co-trustee voluntarily waives the written notice requirement contained in a trust agreement. St Louis Union Trust Co v Dudley, 162 SW2d 290 (Mo App, 1942); Miller v Exchange National Bank of Tulsa, 183 Okla 114; 80 P2d 209 (1938). In the present case, defendant was put on notice when Lloyd Sabin approached him with the bank account signature cards. When defendant signed the cards, he implicitly gave his consent to waive the writing requirement.
Accordingly* we hold that the trial court did not err in finding that defendant did not breach his fiduciary duty as co-trustee of the Lloyd Sabin trust and the Mary Sabin trust.
Affirmed. Costs to defendant.
"Donor, by a written instrument, signed and delivered to Trustee during Donor’s life, may revoke this Agreement in whole or in part and amend it from time to time in any respect except that the duties and compensation of the Trustee shall not be materially changed by any amendment without his written approval.” (Art 1-1.1 of each trust agreement.) (Emphasis added.) | [
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Per Curiam.
Plaintiff appeals as of right from an order of the Court of Claims granting defendant’s motion for accelerated judgment, GCR 1963, 116.1.
Plaintiffs decedent, Herbert J. Potes, died as a result of injuries he sustained in an automobile accident which occurred on Ballenger Highway, south of Miller Road, in Genesee County. Plaintiff filed the complaint in the instant case in the Court of Claims, alleging negligent and defective design, construction, and maintenance of a public roadway, and creation of a nuisance. The complaint also made the following averment: "The governmental agency having jurisdiction over said roadway is the State of Michigan, Department of State Highways and Department of Transportation”. Concurrently, plaintiff filed a separate action in circuit court against the Genesee County Board of Road Commissioners.
Defendant moved for accelerated judgment pursuant to GCR 1963, 116.1, subds (1) and (2), maintaining that the state had no jurisdiction over the subject roadway on the date of the accident, and that therefore the court lacked jurisdiction over the subject matter. This motion was accompanied by an affidavit swearing that Ballenger Highway was under the jurisdiction of Genesee County at the relevant time. Plaintiff submitted a counter-affidavit, sworn to by a Genesee County Road Commission official. The counter-affidavit alleged that from 1953-1954, and again from 1968-1969, the state had assumed jurisdiction over the roadway for the purpose of implementing certain expressway projects and that during these time periods the state had relocated, redesigned, and reconstructed the highway prior to restoring jurisdiction to the county.
Before defendant’s motion was heard, plaintiffs moved to consolidate this suit with the case pending in Genesee County. Since the Court of Claims judge granted defendant’s accelerated judgment motion, he never ruled on the motion to consolidate.
On appeal, plaintiff contends that the trial court should first have consolidated the cases so that a determination could be made as to which governmental unit was responsible for the alleged design and construction defects. We do not agree. In the wake of the submission of affidavits, there was no longer any dispute that Genesee County had jurisdiction over the road in question at the time of the accident; under these circumstances plaintiff’s action against the state was ripe for summary disposition.
MCL 691.1407; MSA 3.996(107) provides:
"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.”
The design, construction, and maintenance of a highway constitutes the exercise or discharge of a governmental function. Thomas v Dep’t of State Highways, 398 Mich 1; 247 NW2d 530 (1976). The only statutory exception under which the state could be liable is found in MCL 691.1402; MSA 3.996(102), which provides in relevant part as follows:
"Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe for travel, may recover the damages suffered by him from such governmental agency. The liability, procedure and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in section 21, chapter 4 of Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 of the Compiled Laws of 1948.”
Since the roadway at issue is a county road, MCL 224.21; MSA 9.121 applies. It provides, in part, as follows:
"It is hereby made the duty of the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel.”
Plaintiff maintains that, having at one time asserted jurisdiction over the road, the state re mains liable for any design or construction defects created at that time, notwithstanding the fact that jurisdiction was relinquished to the county prior to the accident. Defendant argues that the governmental immunity act limits liability to the governmental unit having jurisdiction of the road at the time of the accident. We agree with defendant.
The provisions of the governmental immunity act are to be strictly construed. Bennett v City of Lansing, 52 Mich App 289, 294-295; 217 NW2d 54 (1974), lv den 399 Mich 840 (1977). For this reason several panels of this Court have declined to give the term "jurisdiction”, as used in MCL 691.1402; MSA 3.996(102), an expansive definition. See Austin v City of Romulus, 101 Mich App 662; 300 NW2d 672 (1980), lv den 411 Mich 955 (1981); Summerville v Kalamazoo County Road Comm, 77 Mich App 580; 259 NW2d 206 (1977), lv den 402 Mich 924 (1978), and Bennett, supra, all declining to find that more than one governmental unit had jurisdiction over a particular road for the purpose of MCL 691.1402; MSA 3.996(102).
In the same spirit, we view that statutory exception as parting the immunity curtain only as to the governmental unit having jurisdiction of the subject roadway at the time of the accident. Application of this rule is compatible with the language of MCL 224.21; MSA 9.121, which places the duty to keep county roads in reasonable repair exclusively upon the counties. See Mullins v Wayne County, 16 Mich App 365; 168 NW2d 246 (1969), lv den 382 Mich 791 (1969). To hold two governmental units responsible for correcting design or construction defects could result in confusion and inefficiency. Hargis v Dearborn Heights, 34 Mich App 594; 192 NW2d 44 (1971), lv den 386 Mich 751 (1971), cited by plaintiff, is distinguishable as its factual situation accrued prior to the effective date of the governmental immunity act, MCL 691.1401 et seq.; MSA 3.996(101) et seq.
A procedural matter must now be addressed. In asserting its immunity defense, defendant filed a motion for accelerated judgment, GCR 1963, 116.1, subds (1) and (2). This Court has determined that summary judgment is the appropriate pleading for raising governmental immunity as a tort defense. Beyer v Fraternal Order of Eagles, Aerie No 668, 123 Mich App 492; 333 NW2d 314 (1983), and cases cited therein. Cf. Robinson v Emmet County Road Comm, 72 Mich App 623; 251 NW2d 90 (1976). Subrule GCR 1963, 117.2(1) will be appropriate where a plaintiff has failed to plead facts in avoidance of immunity. Here, however, such facts were pled; plaintiff’s complaint averred that defendant had jurisdiction over the subject roadway.
We believe the appropriate motion for defendant in this case was summary judgment under subrule 117.2(3), testing for the existence of a genuine issue of material fact. The clash of affidavits revealed no dispute that Genesee County, and not defendant, had jurisdiction over the road at the time of the accident. At this point the immunity statute rendered any other disputed facts immaterial, and judgment could be entered in defendant’s favor as a matter of law. An incorrectly labeled motion is considered as if correctly labeled, absent prejudice to the other party. Robinson, supra, p 637; Birch Run Nursery v Jemal, 52 Mich App 23; 216 NW2d 488 (1974), modified 393 Mich 775; 224 NW2d 282 (1974). We can discern no prejudice to plaintiff and affirm the trial court’s judgment.
There was no need for the trial court to consolidate the Genesee circuit court action with this one prior to ruling on defendant’s motion. Stricker v Dep’t of State Highways, 96 Mich App 505; 292 NW2d 240 (1980), and Hiner v State Highway Comm, 96 Mich App 497; 292 NW2d 709 (1980), lv den 409 Mich 914 (1980), may be distinguished, as in both cases a genuine dispute existed concerning which of two governmental units had jurisdiction over the roads in question.
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Per Curiam.
This is an appeal from a decision and order of the Michigan Employment Relations Commission (MERC) dated March 27, 1981.
On March 26, 1980, a petition for election was filed by the Michigan Coaches Association, Warren Consolidated School District, Local No. 1 (peti tioner) with MERC, seeking to establish a bargaining unit among certain employees of the Warren Consolidated Schools Board of Education (respondent). The proposed bargaining unit would consist of 212 coaching positions filled by 171 individuals, 106 of whom are teacher-coaches represented by the Warren Education Association (intervenor). Respondent and intervenor opposed the petition. On November 6, 1980, a hearing was conducted before Hearing Referee Joseph B. Bixler. MERC dismissed the petition, finding that petitioner sought an inappropriate unit of employees for collective bargaining.
Petitioner’s petition sought to establish a bargaining unit among employees of respondent in a unit described as:
"All personnel engaged in the supervision, direction of, and/or coaching of athletics conducted on an extracurricular basis within the school district identified above.”
Of the 171 coaches, 106 are teachers included in the instructional bargaining unit represented by intervenor. That bargaining unit is defined in the collective-bargaining agreement as:
"All regularly employed certified teachers under contract; Special Education personnel; Counselors; Co-op Consultants; Nurses; and Consultants but excluding; Administrators, Supervisors, Clerical, day-to-day Substitute teachers, Teacher interns, and other non-instructional employees.”
The remaining 65 coaches are not employed as full-time teachers in the Warren Consolidated School System. Thus, they are not members of the bargaining unit represented by intervenor.
The collective-bargaining agreement between respondent and intervenor contains wage provisions for the various coaches involved in extracurricular sports. The teacher-coaches’ pay rate is based on a percentage of each individual teacher’s base salary. As far as the record reveals, the nonteachingcoaches receive a set wage for the particular sport.
There are educational prerequisites to employment as a teacher in the Warren Consolidated School System. There are no such qualificational requirements for nonteacher-coaches. Teachers work from 7 a.m. to 2 p.m., five days a week. Coaches commence activity shortly after regular school hours and continue until the activities are completed. As nonmembers of the bargaining unit represented by intervenor, the nonteachingcoaches are not privy to the benefits, available to teachers.
MERC determined that petitioner’s proposed bargaining unit was inappropriate for collective bargaining. In doing so, it stated that the teacher-coaches were properly included in the existing instructional bargaining unit. Additionally, it concluded that the nonteaching-coaches were not an appropriate unit by themselves, since they are a fragment or a residual of a larger unit of instructors.
It should initially be noted that MERC’s findings of fact should be upheld if supported by competent, material, and substantial evidence. Const 1963, art 6, § 28; MCL 423.23(2)(e); MSA 17.454(25)(2)(e); Lansing School Dist v Michigan Employment Relations Comm, 94 Mich App 200, 204; 288 NW2d 399 (1979). Thus, MERC’s bargaining unit determination should not be disturbed unless clearly unsupported by competent, material, and substantial evidence. Detroit Board of Education v Local 28, Organization of School Administrators & Supervisors, AFL-CIO, 106 Mich App 438, 448; 308 NW2d 247 (1981). Here, MERC determined that petitioner’s proposed bargaining unit is inappropriate. As discussed more fully below, we find that MERC’s determination is supported by competent, material, and substantial evidence and should be affirmed.
In Hotel Olds v State Labor Mediation Board, 333 Mich 382, 387; 53 NW2d 302 (1952), the Supreme Court stated:
"We note the decision of the Massachusetts Labor Relations Commission, In re Salem Hotel Corp d/b/a Hawthorne Hotel and Hotel and Restaurant Workers, Local 290, AFL, 19 LRRM 1245, decided November 20, 1946:
" 'In designating bargaining units as appropriate, a primary objective of the commission is to constitute the largest unit which, in the circumstances of the particular case is most compatible with the effectuation of the purposes of the law and to include in a single unit all common interests.’
"The quoted statement in the Hawthorne Case is, so far as applicable to the instant case, in keeping with the directions of the cited proviso of the statute.”
Consistent with this statement from the Supreme Court, the policy of MERC has been to avoid the fractionalization or multiplicity of bargaining units. See Utica Community Schools, 1972 MERC Lab Op 804; Flint Osteopathic Hospital, 1971 MERC Lab Op 572; Van Buren Public Schools, 1973 MERC Lab Op 941; 53rd Dist Court (Livingston County), 1978 MERC Lab Op 82.
In the present case, petitioner seeks to excise 106 teacher-coaches from the instructional bargaining unit to join 65 nonteacher-coaches in a new unit. The thrust of petitioner’s argument is to illustrate the lack of community of interest between nonteaching-coaches and teachers. Petitioner fails, however, to demonstrate an absence of community of interest between teachers and the 106 teacher-coaches. Indeed, the two groups are as one until the end of the regular school day when coaching duties commence. MERC has recognized that coaches should be included in instructional bargaining units. See generally, Oakland Community College, 1971 MERC Lab Op 522. When a coach is also a full-time high school teacher, it cannot seriously be argued that he does not share a community of interest with his fellow teachers. Petitioner’s attempt to form a new bargaining unit, which will contain the 106 teacher-coaches, contravenes the rule enunciated in Hotel Olds, supra, and MERC’s policy against fractionalization of existing bargaining units of one employer which share a community of interest. Thus, the proposed bargaining unit is inappropriate. Since MERC’s determination in this regard is supported by competent, material, and substantial evidence, its decision should be affirmed.
Affirmed. No costs, a public question being involved. | [
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Beasley, J.
Defendant, Roger L. Lyles, was convicted by a jury of two counts of first-degree (felony) murder, contrary to MCL 750.316; MSA 28.548, and one count of assault with intent to commit murder, contrary to MCL 750.83; MSA 28.278. Defendant was sentenced to three concurrent life terms, after which he appeals as of right.
These convictions and sentences arose from a second trial. Earlier, defendant’s convictions for murder and assault with intent to murder were reversed in Lyle v Koehler, 720 F2d 426 (CA 6, 1983). The reversal of defendant’s first convictions related to the denial of defendant’s right to confrontation arising out of a letter introduced against his codefendant in the first trial. Since defendant was tried separately in the trial involved in this appeal and the letter causing the reversal of the first trial was not introduced against defendant, the issues in Lyle v Koehler, supra, are not relevant to our decision in this matter.
The charges against defendant arose out of the April 14, 1976, shootings of Feadow and Deborah Jones and Algenia Price. Feadow and Deborah Jones died from the gunshot wounds they received, while Algenia Price, although shot in the head twice, survived the attack and later testified at defendant’s trial. Price testified that four men forced their way into the Jones’s house and took various pieces of jewelry before shooting the victims.
Pursuant to Price’s description of the four men and a neighbor’s description of a car seen speeding away from the Jones’s home, police apprehended two of the four men within an hour of the shooting. Defendant was one of those two men. At a subsequent line-up, Price identified defendant as one of the attackers. A third man was apprehended approximately one month later.
Defendant raises numerous issues on appeal. First, he argues that the trial judge improperly allowed the prosecutor to introduce prior inconsistent statements of an alibi witness for the purpose of impeaching the witness’s credibility. The alibi witness in this case testified at defendant’s first trial that defendant was at his home when the shootings occurred. Before defendant’s second trial, the witness ingested PCP, which affected his memory. He could only remember some parts of his testimony from the first trial. Since the wit ness’s memory could not be refreshed, the trial judge allowed his testimony at the first trial to be read into evidence.
Upon cross-examination at the second trial, the prosecutor asked the alibi witness if he remembered giving a statement to two police officers on May 27, 1976, at the Saginaw County jail that defendant had not been with him at the time of the shooting. The witness remembered talking to the two officers, but could not remember his statement. The prosecutor then read the prior inconsistent statements of the witness into evidence from a transcript which had been prepared from a tape recording of the statements. The trial judge admitted this evidence for the limited purpose of impeaching the credibility of the alibi witness and instructed the jury accordingly.
Initially, we note that defendant did not object to the prosecutor’s use of the prior inconsistent statements of the witness. Under such circumstance, we will not reverse absent manifest injustice. Manifest injustice will not result from this court’s refusing to reverse on this issue.
The prosecutor complied with MRE 613(a) by disclosing to the witness the time, place and person to whom the prior oral statements were made. One of the purposes of the rule requiring foundational questions is to avoid surprise of the witness. This purpose was accomplished once the questions were posed.
The prosecutor also complied with MRE 613(b) in introducing the extrinsic evidence of the witness’s statements. On cross-examination, the prosecutor afforded the witness an opportunity to ex plain or deny the statements. The witness could not recollect his specific statements, but it is clear that this will not bar admission of otherwise competent, relevant and material impeaching evidence. The prosecutor’s questions alone provided a sufficient foundation for the admission of extrinsic evidence of the prior statements.
The prosecutor, and also the trial court, afforded defendant an opportunity to interrogate the witness on those prior statements during trial. In addition, although the witness experienced a lack of memory concerning his prior statements, he had provided an explanation for his prior statements during testimony at defendant’s first trial. Defendant could have read this prior testimony at his second trial, as he had done for the alibi testimony itself. Thus, defendant was afforded an opportunity to interrogate the witness for purposes of MRE 613(b).
Defendant’s argument that the decision in People v Durkee applies to this situation is without merit. In Durkee, the witness being impeached had offered no evidence against the prosecution’s case and could not even remember being questioned by police. In the within case, the prior alibi testimony of the witness was adverse to the prosecutor. In addition, the witness did remember being questioned by the police. Under such circumstances, the admission of prior statements for impeachment purposes is proper.
Defendant’s argument that his constitutional right to confrontation was abridged by the admission of the prior inconsistent statements is also without merit. The statements were not used as substantive proof, but only for impeachment purposes. Such impeachment use is entirely proper and does not abridge defendant’s constitutional right to confrontation.
Defendant next argues that the in-court identification of him by victim Price lacked a sufficient independent basis. Defendant bases this claim on his assertion that police officers improperly suggested to Price that defendant’s hair was in curlers, not braided as Price had originally stated. First, we must again note that defendant failed to move for suppression of or object to Price’s in-court identification testimony. Thus, the question of suggestiveness is not preserved for review by this Court. But, even if we were to review defendant’s claim, we would find that an independent basis existed for Price’s in-court identification of defendant under the factors listed in People v Kachar. The record establishes that Price drew on her memory of the crime and her observations of defendant in making the in-court identification. Defendant was not wearing hair curlers at the trial.
The additional claims of defendant that Price’s in-court identification was tainted due to a previous photographic line-up which included defendant’s photo and the fact that Price was interviewed by the police at the hospital without the presence of defendant’s counsel are without factual basis or legal merit.
Defendant next contends that error occurred when the trial judge questioned one of the 14 jurors in chambers with both counsel present but without defendant present. During the in-cham bers questioning, the juror indicated that she could not render a fair verdict, since she lived in the same neighborhood as the defendant. The trial judge excused the juror under the authority of MCL 768.18; MSA 28.1041.
Defendant had previously moved for the dismissal of the juror in question, but, on appeal, contends that his absence from the in-chambers questioning denied him his right of trial by jury. Our examination of the record convinces us that defendant’s absence from the in-chambers questioning of the juror did not present any reasonable possibility of prejudice to defendant. It is very unlikely that if defendant had been present he would have argued against excusing this juror and, thus, defendant’s absence does not require reversal.
Defendant also argues that the prosecutor improperly shifted the burden of proof on the issue of an alibi defense. During cross-examination, the prosecutor asked defendant if he had ascertained the house number and owner of a house where he had been just prior to his arrest. Defendant initially indicated that, despite opportunities to make inquiries, he had not pursued these matters. On appeal, defendant argues, for the first time, that the prosecutor’s questions allowed the jury to infer that he had an obligation to investigate and produce witnesses from the house. Again, defendant did not object to the prosecutor’s questions at trial. Having failed to present the trial court with an opportunity to correct any harm attributable to the prosecutor’s inquiries, defendant may not now raise this objection for the first time on appeal.
However, even if we reach the merits of defendant’s argument, the prosecutor’s questions do not require reversal. The prosecutor did not call on defendant to produce unavailable witnesses, he merely inquired into defendant’s failure to take advantage of available opportunities to pursue matters relevant to his alibi defense. This situation is analogous to a line of cases in this Court which have held that a prosecutor may inquire into a defendant’s failure to produce available witnesses or other evidence when defendant has presented an alibi defense. This is a proper way to attack the strength of the defense theory. Due to the appropriateness of the prosecutor’s line of cross-examination in this case and the fact that the trial judge clearly instructed the jury that defendant was not required to produce any evidence and that the burden of proving guilt was on the prosecution throughout the entire course of the trial, reversal is not required.
Defendant also argues that the prosecutor’s questions forced him to reveal that he had previously been convicted in his first trial. However, the record shows that, upon being asked if he had ever tried to find out who owned the house, defendant volunteered the fact that he had requested his appellate counsel from the first conviction to pursue the matter. Since defendant did not object at the time of trial, this Court will not review this issue unless manifest injustice results. Our refusal to review defendant’s voluntary statement to the prosecutor’s proper inquiries during cross-examination does not constitute manifest injustice.
Defendant also made a motion for a new trial in the trial court, arguing that the prosecution failed to use due diligence in locating alibi witnesses. The witnesses defendant wanted produced were in the house where he was arrested upon exiting. By defendant’s own admission, these potential witnesses had not seen him at the time the crime was committed. Thus, it is clear they are not res gestae witnesses since they did not observe any events constituting the crime and their value as alibi witnesses is very limited. But, even if these witnesses were properly termed alibi witnesses, the prosecution had no duty to produce them, since they only observed the conditions of defendant’s arrest. Consequently, the trial court properly denied defendant’s motion for a new trial or a hearing on the prosecution’s possible lack of due diligence in locating the alibi witnesses.
Defendant next contends that his conviction was against the great weight of the evidence presented at trial. This claim has not been preserved for appeal, since defendant has not moved for a new trial on this ground. Defendant’s argument could be characterized as a challenge to the sufficiency of the evidence, which would not require a motion for new trial prior to appellate review. The standard for reviewing the sufficiency of the evidence is whether, considering the evidence in the light most favorable to the prosecutor, a rational trier of fact could find the necessary elements of the crime beyond a reasonable doubt or if the court clearly erred. Reviewing the record as a whole, it is clear that there was sufficient evidence presented at trial to support the jury’s finding that all the elements of first-degree felony murder and assault with intent to commit murder were established beyond a reasonable doubt. The trial court did not clearly err in its verdict.
Next, defendant argues that the trial court, upon allowing the testimony of three witnesses to be reread to the jury during deliberations, had a duty to furnish the jury with the exhibits related to the reread testimony. We note that defendant did not raise this issue in the trial court and, thus, absent manifest injustice, this Court will not review the issue.
During deliberations in this case, the jury requested that specific testimony be reread. They did not request the exhibits related to the testimony. It is clear that, when a jury requests that testimony be reread to it, the reading and extent of the reading is a matter within the sound discretion of the trial court.
In People v Lobaito, the trial court refused to read a jury instruction that pertained to evidence reread to the jury. This Court found that the trial court had no duty to go beyond the jury request and did not abuse its discretion in refusing to read the instruction. In the within case, the trial court had no duty to go beyond the jury’s request and provide the exhibits that related to the reread testimony. The trial court did not abuse its discretion by not providing the exhibits and no manifest injustice exists requiring appellate review.
Defendant also argues for the first time on appeal that the prosecutor’s closing argument was improper and prejudicial. This argument is without merit. The prosecutor’s use of the word "providence” did not call on the jury to convict defendant as a religious duty, but was a general refer ence to the element of chance involved in the events of the case. Furthermore, the prosecutor could properly comment on the dubious credibility of defendant’s alibi witness who claimed to now have no memory of relevant events. The prosecutor could also properly comment on the dubious credibility of defendant’s testimony based on reasonable inferences from the evidence presented at trial. Upon our review of the prosecutor’s closing argument, we find that it was based on reasonable inferences from the evidence, was not improper and no undue prejudice resulted.
Defendant next claims that he was denied effective assistance of counsel at his trial, in violation of US Const, Am VI, and Const 1963, art 1, § 20. Initially, defendant argues that his counsel failed to object and make appropriate motions raising the issues discussed above. But, as noted above, these issues are without merit. A claim of ineffective assistance of counsel based on defense counsel’s failure to object or make motions that could not have affected defendant’s chances for acquittal is without merit.
Defendant also argues that his counsel’s failure to request jury instructions regarding codefendants and the general nature of trial testimony denied him effective assistance of counsel. In his argument, defendant is unclear as to which specific jury instructions his trial counsel should have requested. Our review of the record does not reveal any specific jury instructions which should have been requested. This Court has noted that there is a presumption that defense counsel pro vided effective assistance and that defendant must show that counsel failed to perform an essential duty owed to defendant and, thus, prejudiced defendant. In this case, defendant has failed to make that showing with regard to jury instructions. Applying both tests articulated in People v Garcia, we conclude that defendant was not denied effective assistance of counsel and his arguments on this issue are without merit.
Next, defendant claims that the trial judge erred in his instructions to the jury by removing the issue of malice from their consideration. Defendant is correct in noting that an essential element of first-degree felony murder is malice. Our review of the jury instructions in this case reveals that the trial judge first instructed the jury that it had to find malice for a second-degree murder conviction. The trial judge then went on to instruct that the jury had to find all the elements of second-degree murder for a first-degree felony murder conviction. He then instructed, specifically on first-degree felony murder, that the jury had to find malice as described in terms found in the definition of malice in People v Aaron. Thus, the trial judge did not take the issue of malice for first-degree felony murder from the jury’s consideration. Defendant’s argument is without merit.
Defendant also claims that the prosecutor failed to give him notice of two witnesses whose testimony rebutted defendant’s alibi, in violation of MCL 768.20(2); MSA 28.1043(2). First, we note that defendant failed to object to the lack of notice of alibi rebuttal witnesses and failed to raise the issue in a motion for new trial. Therefore, defendant waived any claim of error under the statute. The trial judge is under no duty sua sponte to exclude the testimony.
However, even if we address defendant’s claim on this issue, we would find no error. The two witnesses defendant characterizes as "alibi rebuttal witnesses” did not rebut defendant’s alibi for purposes of the statute. The first witness merely provided a foundation for the admission of prior inconsistent statements of defendant’s alibi witness for impeachment purposes only. This Court has clearly held that, where the rebuttal testimony is offered to impeach a defendant’s alibi witness, not to contradict the actual alibi testimony given, admission of the testimony is not prohibited by the statute.
The second witness merely rebutted defendant’s assertion that at the time of his arrest he requested that police officers check out the house he had just left for witnesses to the fact that he had been inside. Again, this testimony does not rebut defendant’s alibi testimony. Defendant testified that he was not in the house at the time the crime occurred. Thus, people inside the house could not be alibi witnesses since they could not place defendant somewhere else than at the scene of the crime when the crime occurred. Therefore, testimony of the witness did not in any way rebut an alibi of the defendant. Since MCL 768.20(2); MSA 28.1043(2) does not apply to the testimony challenged by defendant, no violation of the statute occurred when the trial court allowed the testimony.
Next, defendant argues that the trial court erred in denying his motion to suppress a handgun registered to the father of a victim, Mr. Jones, that was found on the Jones’s lawn the morning after the killings. In addition, defendant claims the trial court erred in admitting testimony concerning, and photographs of, two rifles found at the scene of the crime. We note initially that the admissibility of evidence rests within the trial court’s discretion, and the exercise of that discretion will not be overturned on appeal unless there has been a clear abuse of that discretion.
Our review of the record clearly reveals that the handgun and the two rifles were relevant to the testimony of victim Price, who testified that all of the guns had been used by the four men who entered the Jones’s home on April 14, 1976. The introduction of the guns into evidence makes the facts in Price’s testimony more probable than they would be without the evidence.
Defendant makes no plausible arguments that the admission of this relevant evidence created unfair prejudice that substantially outweighed the probative value of the evidence. Thus, the trial judge properly determined that the handgun and the rifles were relevant evidence under MRE 401, and that the probative value of the evidence was not substantially outweighted by the danger of unfair prejudice under MRE 403. Therefore, the trial judge did not abuse his discretion in admitting this evidence under MRE 402.
Defendant’s final claim on appeal is that, even if the errors argued above do not independently require reversal, taken together, these errors denied defendant due process of law under US Const, Am XIV, and Const 1963, art 1, § 20. It is true that in one case this Court has held that defects in a trial which might be considered as harmless error if each had been the only defect in the case may, if taken collectively and cumulatively, required a new trial in certain circumstances. However, in this case, pursuant to our discussion above, we have not found any errors at trial, harmless or otherwise. There are no errors to view collectively and cumulatively. Therefore, defendant’s claim here, and all those discussed above, are without merit.
Affirmed.
People v Bright, 126 Mich App 606; 337 NW2d 596 (1983).
People v Gunne (On Rehearing), 66 Mich App 318; 239 NW2d 603 (1976), lv den 400 Mich 802 (1977), cert den 434 US 861; 98 S Ct 198; 54 L Ed 2d 134 (1977).
Id.
People v Hogan, 105 Mich App 473; 307 NW2d 72 (1981), lv den 413 Mich 937 (1982).
369 Mich 618; 120 NW2d 729 (1963).
People v Coates, 40 Mich App 212; 198 NW2d 837 (1972).
Id.
People v Wilki, 132 Mich App 140; 347 NW2d 735 (1984).
People v Kacher, 400 Mich 78, 95-96; 252 NW2d 807 (1977).
People v Morgan, 400 Mich 527, 536; 255 NW2d 603 (1977), cert den 434 US 967; 98 S Ct 511; 54 L Ed 2d 454 (1977); People v Marsh, 108 Mich App 659, 665; 311 NW2d 130 (1981), cert den 459 US 854; 103 S Ct 119; 74 L Ed 2d 104 (1982).
People v McClow, 40 Mich App 185; 198 NW2d 707 (1972).
People v Ovegian, 106 Mich App 279; 307 NW2d 472 (1981); People v Gant, 48 Mich App 5; 209 NW2d 874 (1973).
People v Bright, supra.
People v Austin, 95 Mich App 662; 291 NW2d 160 (1980).
People v Hooks, 139 Mich App 92; 360 NW2d 191 (1984).
People v Davis, 122 Mich App 597; 333 NW2d 99 (1983); People v Cage, 83 Mich App 534; 269 NW2d 213 (1978).
People v Hollis, 140 Mich App 589; 366 NW2d 29 (1985); People v Anderson, 112 Mich App 640; 317 NW2d 205 (1981).
People v Bright, supra.
People v Lobaito, 133 Mich App 547; 351 NW2d 233 (1984).
Id.
See People v Roberson, 90 Mich App 196, 203; 282 NW2d 280 (1979), lv den 407 Mich 908 (1979).
See People v Gaines, 129 Mich App 439, 445; 341 NW2d 519 (1983).
People v Chinn, 141 Mich App 92, 98; 366 NW2d 83 (1985).
People v Tranchida, 131 Mich App 446, 449; 346 NW2d 338 (1984).
398 Mich 250; 247 NW2d 547 (1976), reh den 399 Mich 1041 (1977).
People v Aaron, 409 Mich 672; 299 NW2d 304 (1980).
Id.
People v Hence, 110 Mich App 154, 174; 312 NW2d 191 (1981).
People v Khabar, 126 Mich App 138; 337 NW2d 9 (1983); People v Gillman, 66 Mich App 419; 239 NW2d 396 (1976).
Gillman, supra, p 424.
Zokas v Friend, 134 Mich App 437; 351 NW2d 859 (1984).
MRE 403.
People v Brown, 76 Mich App 733, 739; 257 NW2d 233 (1977), lv den 402 Mich 843 (1977). | [
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Per Curiam.
This case involves a tort claim for injuries plaintiff allegedly sustained as a result of an automobile accident. Following a trial, the jury returned a special verdict finding that plaintiffs injuries amounted to a serious impairment of an important body function and awarded plaintiff $45,000. Defendant unsuccessfully moved for a new trial or, in the alternative, remittitur. Defendant appeals as of right. We affirm.
At the close of plaintiffs case, defendant moved for "summary judgment as a matter of law”; at the close of proofs, defendant "renewed” his motion for a directed verdict on the question of whether plaintiff had suffered a serious impairment of body function. Defendant contends that the trial court erred in denying both motions and submitting the case to the jury.
In Cassidy v McGovern, 415 Mich 483, 502; 330 NW2d 22 (1982), the Court stated:
"We hold that when there is no factual dispute regarding the nature and extent of a plaintiffs injuries, the question of serious impairment of body function shall be decided as a matter of law by the court. Likewise, if there is a factual dispute as to the nature and extent of a plaintiffs injuries, but the dispute is not material to the determination whether plaintiff has suffered a serious impairment of body function, the court shall rule as a matter of law whether the threshold requirement of MCL 500.3135; MSA 24.13135 has been met.”
The standard of review to be used in our review of the lower court’s rulings is unclear. Some panels of this Court have viewed the evidence in a light most favorable to the nonmoving party. See Van Every v SEMTA, 142 Mich App 256; 369 NW2d 875 (1985), Argenta v Shahan, 135 Mich App 477; 354 NW2d 796 (1984), lv gtd 421 Mich 858 (1985). The "clearly erroneous” standard has also been used. See Kelleher v Kuchta, 138 Mich App 45, 47; 359 NW2d 224 (1984). We find that regardless of which standard is applied in this case the trial court did not err in denying the defendant’s motions since there existed a factual dispute regarding the nature and extent of plaintiff’s injuries which was material to the determination of whether plaintiff suffered a serious impairment of body function. See Cassidy, supra, p 502.
Plaintiff testified that her injuries have significantly interfered with her normal lifestyle. She has had trouble walking since the accident, needing the use of a cane or walker. Other physical activities have been substantially reduced. She cannot sleep for extended periods of time. She can only drive short distances.
According to Dr. Edward Maxim, an orthopedic surgeon, plaintiff exhibits a right-sided limp and lower neck and trapezius muscle tenderness. He performed active and passive range-of-motion tests on plaintiff’s neck, observing considerable restriction of movement. Plaintiff’s neck and cervical spine were x-rayed, and Dr. Maxim also reviewed x-rays of plaintiff’s lumbar spine region which had been taken a month before. He diagnosed a degenerative C-5 intervertebral disk and degenerative L-4 disk, with nerve root compression. In his opinion, the degeneration of C-5 was pre-existing but had been asymptomatic; as a result of the automobile accident the degeneration of the disk accelerated and became symptomatic. He was also of the opinion that the accident aggravated plaintiff’s lumbar condition. His prognosis was that the dam age to her disks was permanent and would worsen. On cross-examination Dr. Maxim admitted the possibility that plaintiffs disks degenerated spontaneously without any trauma sustained in the accident.
The deposition of William H. Salot, an orthopedic surgeon, was read into evidence. In his opinion, plaintiffs pain and injuries would not resolve completely under any treatment. On cross-examination, he testified that plaintiffs pre-existing degenerative disk disease may have caused the pain she was experiencing and could be related to aging and arthritis.
The deposition of Dr. Michael Haas, a family practitioner who had treated plaintiff since 1969, was also read to the jury. His examination of plaintiff 14 days after the accident revealed a severe contusion and strain of the cervical and lumbrosacral spine and the abdomen with post-traumatic radiculitis. He testified that he had treated plaintiffs arthritis prior to the accident with better results than after the accident, since the accident severely aggravated her pre-existing arthritis. He also testified that all plaintiffs movements were limited.
The video deposition of Dr. Jarlath Quinn was offered by defendant. He found that plaintiff had full range of motion in her neck and diagnosed her condition as degenerative osteoarthritis which antedated the automobile accident. In his opinion, whatever soft tissue injuries plaintiff may have sustained in the accident had been resolved and such injuries did not aggravate her arthritic condition. He concluded that plaintiff did not suffer severe injury in the accident, and that the accident had no effect on plaintiffs prior health problems.
Based upon the foregoing, we conclude that it was proper for the trial court to submit this case to the jury. The testimony of plaintiff and Drs. Maxim, Salot, and Haas demonstrated that plaintiffs injuries were objectively manifested through x-rays and passive movement tests, see Williams v Payne, 131 Mich App 403; 346 NW2d 564 (1984), Salim v Shepler, 142 Mich App 145; 369 NW2d 282 (1985), Argenta, supra, and substantially affected her ability to lead a normal life, see Braden v Lee, 133 Mich App 215; 348 NW2d 63 (1984). Nevertheless, the testimony of defendant’s expert, Dr. Quinn, and defense counsel’s cross-examination of plaintiffs experts created a question as to whether the accident aggravated or made symptomatic plaintiffs pre-existing degenerative disease, and if so, the extent of the aggravation. Given this factual dispute, we find no error.
Over defense objection, the officer who responded to the accident was allowed to read from his police report plaintiffs statements at the scene of the accident. Defendant contends this testimony was inadmissible hearsay. We agree, but find that the error was harmless since both plaintiffs and defendant’s testimony established the same facts by competent evidence. See People v Slaton, 135 Mich App 328, 338; 354 NW2d 326 (1984).
Defendant also contends that the testimony of plaintiffs physical therapist regarding her medical history was inadmissible hearsay because the witness was not an M.D. subject to the hearsay exception of MRE 803(4). We are not persuaded by the argument. MRE 803(4) is not by its terms limited solely to statements made for purposes of medical treatment by physicians and we decline to read the rule so narrowly. In any event, competent testimony from four doctors established the same medical history so that the error, if any, was harmless. See Slaton, supra, p 338.
We are similarly unpersuaded by defendant’s contention that the trial court erred in denying his motion for new trial. The grant or denial of a motion for new trial rests in the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Vargo v Denison, 140 Mich App 571, 573; 364 NW2d 376 (1985). When there is competent evidence to support the finding of a jury, its verdict should not be set aside. Goins v Ford Motor Co, 131 Mich App 185, 198; 347 NW2d 184 (1983). Here, the evidence at trial supports the jury’s finding. Plaintiffs medical experts testified that the accident aggravated and accelerated her pre-existing back condition. Plaintiff testified that the aggravation of her condition significantly interfered with her normal lifestyle. We cannot say that the trial court abused its discretion in denying defendant’s motion.
Nor do we agree with defendant that the trial court abused its discretion in denying defendant’s motion for remittitur based upon GCR 1963, 527.1(4) and 527.6. In reviewing damage awards in cases tried to juries, the test is "whether the award shocks the judicial conscience, appears unsupported by the proofs, or seems to be the product of improper methods, passion, caprice, or prejudice”. Precopio v Detroit, 415 Mich 457, 465; 330 NW2d 802 (1982). Applying this test, we find that the trial court did not abuse its discretion in denying defendant’s motion. The damages awarded are "within the limits of what reasonable minds would deem just compensation for the injury”, Precopio, supra, and cannot be said to be based on prejudice, caprice, or other kindred reasons.
Affirmed. | [
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Per Curiam.
Defendant appeals his February, 1980, conviction by a jury for criminal sexual conduct in the first degree, MCL 750.520b(1)(f); MSA 28.788(2)(1)(f). Sentenced March 14, 1980, to a term of 20 to 80 years imprisonment, defendant appeals as a matter of right raising four issues, one of which is of first impression.
On the night of July 22, 1979, defendant invited Penny Giles to go with him to a mutual friend’s home. Penny, who had known defendant for some three years and had occasionally dated defendant’s brother, accepted. Instead of driving to the friend’s home, defendant drove in the opposite direction to Lime Lake where he struck Penny on the head with a beer bottle when she resisted his kisses. Defendant then drove to a cornfield where he repeatedly sexually assaulted Penny, then drove her back to her home where he dropped her off after threatening that he would kill her if she told anyone what had transpired.
On the day of trial and just before a jury was selected, the defendant moved for a continuance so that he could obtain substitute counsel. Defendant’s reasons for wanting substitute counsel are set forth in defendant’s brief. Defendant’s appointed counsel had represented defendant on a criminal sexual conduct charge which had been tried on January 15, 1980, some 40 days prior to the commencement of the instant trial. Defendant was convicted in that case and was unhappy with having the same attorney again represent him. However, those reasons were not stated to the trial court. The prosecutor informed the trial court that the case had initially been set for trial on January 15, 1980, the same date as the similar charge had gone to trial before a different judge, and that the trial date, February 25, 1980, had been scheduled and notices sent on January 21, 1980. The prosecutor explained that witnesses had been brought in for the trial and defendant had been brought in from prison. The court denied the motion for a continuance, stating that there was no good reason to grant an adjournment for the purpose stated.
In determining whether a trial court has abused its discretion in failing to grant a continuance, a reviewing court looks to the five factors set forth in People v Wilson, 397 Mich 76, 81; 243 NW2d 257 (1976). Application of those factors to the situation before us discloses no abuse of discretion. Contrary to what defendant now claims on appeal, the transcript discloses that the defendant never informed the court of the reasons why he wanted a different attorney. Those reasons appear for the first time in defendant’s brief on appeal. Further, defendant was negligent in waiting until the moment of trial before asking for an adjournment. On January 15, 1980, the prosecutor stated that he was ready to try the case immediately. A trial court cannot be found to have abused its discretion where the facts are not made known at trial.
While counsel were arguing whether certain prior consistent statements of Penny Giles should be admitted into evidence as contended by the prosecution, the jury inadvertently entered the room. The jury heard the court announce that though the argument of the prosecution was logical, opinions of the Court of Appeals would not allow the testimony in evidence. Defendant claims that this was error. We disagree. The contents of the witness’s statement were never made known to the jury. Under similar circumstances, where the jury heard an objection upheld but did not hear the testimony to which the objection was directed, this Court found no error. Schweim v Johnson, 10 Mich App 81; 158 NW2d 822 (1968). Additionally, we do not find that the court’s comment was prejudicial to the defendant. As such, no error occurred. People v Cole, 349 Mich 175, 187; 84 NW2d 711 (1957).
The third issue is of first impression. Tom Herrera was originally endorsed on the information as a res gestae witness. Subsequently, he was listed as an alibi witness on the notice of alibi filed by the defense. Nevertheless, he was called by the prosecution as a witness for the people and upon direct examination made statements inconsistent with prior statements given deputy sheriff Lazaroff. Upon redirect examination, the prosecutor began to question the witness about his prior inconsistent statements, and defendant objected on the grounds that the prosecution could not impeach its own witness. The court overruled the objection. Likewise, when the prosecutor asked deputy Lazaroff about the statement Herrera made to him, defense counsel’s objection was overruled.
The people contend that Herrera was a res gestae witness, and therefore could be impeached under MRE 607(2)(A). According to the people, Herrera was a res gestae witness because his testimony would have aided in developing disclosure of the facts surrounding the alleged commission of the charged offense. The flaw in the people’s argument is that in order to be a res gestae witness, a person must be an eyewitness to some event in the continuum of a criminal transaction. In the present case, Herrera saw defendant before he went over to Penny Giles’s house, but did not witness any event in the continuum of a criminal transaction. In our opinion, Herrera was not a res gestae witness.
The trial court ruled that Herrera could be impeached by the prosecutor because Herrera’s trial testimony surprised the prosecution. Defendant argues that the prosecutor could not have been surprised because he was notified that Herrera might be called as an alibi witness. We agree with defendant that the prosecution was not surprised. Consequently, we find that the trial court erred in allowing the witness to be impeached.
However, we find the error harmless. In People v Robinson, 386 Mich 551; 194 NW2d 709 (1972), harmless error was defined:
"Where it is claimed that error is harmless, two inquiries are pertinent. First, is the error so offensive to the maintenance of a sound judicial process that it never can be regarded as harmless? * * * Second, if not so basic, can we declare a belief that the error was harmless beyond a reasonable doubt?” Robinson, p 563.
The first inquiry is whether the prosecutor’s impeachment of his own witness was unduly offensive to the maintenance of a sound judicial process. FRE 607 allows the party calling a witness to impeach the credibility of the witness called. In Chambers v Mississippi, 410 US 284, 296; 93 S Ct 1038; 35 L Ed 2d 297 (1973), the Supreme Court characterized the "voucher” rule as follows:
"Whatever validity the 'voucher’ rule may have once enjoyed, and apart from whatever usefulness it retains today in the civil trial process, it bears little present relationship to the realities of the criminal process.
"8. The 'voucher’ rule has been condemned as archaic, irrational, and potentially destructive of the truth-gathering process. McCormick, supra, fn 7; Morgan, Basic Problems of Evidence 70-71 (1962); 3A Wigmore, supra, fn 7, § 898, p 661.”
In our opinion, the prosecutor’s impeachment of Herrera was not unduly offensive to the maintenance of a sound judicial process.
The second inquiry is whether the error was harmless beyond a reasonable doubt. In the instant case, Penny Giles identified defendant as the person who sexually assaulted her; Penny had known defendant for over three years. Defendant arrived to pick Penny up in a green Ford Maverick. Penny testified that defendant hit her on the head with a beer bottle, then repeatedly assaulted her sexually. Penny required eight stitches in her head and laboratory tests showed that she had had sexual intercourse recently. A green Ford Maverick was found abandoned on the road, and the police recovered a beer bottle, cornstalk, and fabric samples from the car’s interior. The fabric samples contained bloodstains of the same type as Penny’s blood. The beer bottle and cornstalk also contained bloodstains. The evidence against defendant was so overwhelming that all reasonable jurors would have found guilt beyond a reasonable doubt even if Tom Herrera had not been impeached by the prosecution.
Lastly, defendant contends that he is entitled to credit for 244 days that he served in the county jail prior to his conviction. Defendant was incarcerated on an unrelated charge, for which he was sentenced to 5 to 15 years imprisonment on February 13, 1980. Defendant received credit for 165 days served when he was sentenced on the other charge. Defendant is not entitled to credit for the time served prior to February 13, 1980. Brinson v Genesee Circuit Judge, 403 Mich 676; 272 NW2d 513 (1978). Defendant is not entitled to credit for the days served between February 13, 1980, and March 14, 1980, because at this time defendant was serving his prison sentence for his prior conviction. People v Monasterski, 105 Mich App 645; 307 NW2d 394 (1981).
Affirmed. | [
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Per Curiam.
Plaintiff appeals as of right from the entry of an order for summary judgment. Plaintiff’s cause of action arises out of an accident which occurred on May 27, 1976, involving a pedestrian and a motor vehicle. Plaintiff’s decedent was walking across Rogell Drive at the Detroit Metropolitan Airport when he was struck by an automobile owned and operated by Viril Combs. As a result of the collision, plaintiffs decedent suffered injuries which eventually led to his death.
At the time of the accident, plaintiffs decedent was a resident of the State of Washington and was insured by Nationwide Mutual Insurance Company (Nationwide), a certified no-fault insurance carrier in the State of Michigan. The driver of the automobile which struck plaintiffs decedent was a resident of Michigan with no-fault insurance through the defendant in this action, Cadillac Mutual Insurance Company (Cadillac Mutual), also a certified no-fault insurance carrier.
On April 20, 1977, plaintiff filed an action against Cadillac Mutual for first-party, personal injury protection benefits, claiming liability under Michigan’s no-fault insurance act, MCL 500.3101 et seq.; MSA 24.13101 et seq., specifically, MCL 500.3115(1); MSA 24.13115(1). Plaintiff claims a total of $71,978.53 in personal injury protection benefits. Plaintiff also states that Medicare paid a total of $69,592 for medical expenses and that, as of July 21, 1977, Nationwide had paid $402.83 in medical expenses.
On April 28, 1980, plaintiff filed an objection to mediation, scheduled for May 20, 1980, on the grounds that there were no factual issues in dispute and that the only unresolved issue was whether Medicare benefits might be set off against personal injury protection benefits. A case involving the same issue was then pending before the Supreme Court. LeBlanc v State Farm Mutual Automobile Ins Co, 410 Mich 173; 301 NW2d 775 (1981).
On the day of trial, September 18, 1980, both parties filed a "Stipulation and Order for Discontinuance” in which they stated that the lawsuit had been settled. The parties agreed to a dismissal with prejudice and agreed that, within 20 days of publication of the LeBlanc decision, plaintiff would be allowed to seek leave to modify the order in conformance with that holding.
The Supreme Court rendered its decision in LeBlanc on February 3, 1981, holding that Medicare benefits received by an insured need not be set off against personal injury protection benefits payable under the no-fault act. On March 5, 1981, plaintiff filed a motion for reinstatement, which was granted.
On July 24, 1981, defendant filed a motion for summary judgment which was granted on August 14, 1981, pursuant to OCR 1963, 117.2(1), on the ground that plaintiff should proceed against the decedent’s insurance carrier for personal injury protection benefits. Plaintiff appeals this order on two grounds.
Plaintiff’s first issue concerns the identity of the insurance carrier liable for the personal injury protection benefits. The case critical to our decision is Mills v Auto-Owners Ins, Inc, 413 Mich 567; 321 NW2d 651 (1982), concerning an accident between a motorcycle driven by a Wisconsin resident and a motor vehicle driven by a Michigan resident. The accident occurred in Michigan. The Supreme Court held that responsibility for payment of no-fault benefits rested with the insurer of the Michigan motor vehicle.
Mills is equally applicable to accidents involving a pedestrian and a motor vehicle. In Underhill v Safeco Ins Co, 407 Mich 175, 186; 284 NW2d 463 (1979), the Supreme Court concluded that owners and operators of motorcycles are comparable to pedestrians and owners and operators of bicycles because they are not required under § 3101 to purchase no-fault insurance.
It, therefore, appears that the trial court erred by granting a summary judgment in favor of Cadillac Mutual.
In light of our decision regarding plaintiffs first issue, we find it unnecessary to decide whether the trial court erred by considering defendant’s liability to plaintiff, contrary to the parties’ stipulation and order for discontinuance.
Reversed and remanded for proceedings consistent with this opinion. | [
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R. M. Maher, P.J.
The origin of this lawsuit reaches back in time and across jurisdictional boundaries. Plaintiffs were members of a class in an action originally filed in federal district court on November 20, 1975, alleging violations of 42 USC 1983; Title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq.; Title IX of the Education Amendments of 1972, 20 USC 1681 et seq.; and the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution. The defendants were members of the class of defendants in that action. Neither the plaintiffs nor defendants in this action were named parties in the federal case.
The federal district court certified the case as both a plaintiff’s and defendant’s class action, but only as to the claims under Title VII. Thompson v Bd of Ed of Romeo Community Schools, 71 FRD 398, 418 (WD Mich, 1976).
In an opinion issued on October 19, 1979, the federal court allowed the plaintiffs to amend their complaint to add claims under Michigan law which related back to the filing of the original complaint. The district court certified the classes as to the state claims.
In a subsequent ruling, the district court refused to decertify either the plaintiff or defendant classes. Thompson v Bd of Ed of Romeo Community Schools, 519 F Supp 1373 (WD Mich, 1981). On appeal, the Court of Appeals reversed both the plaintiff and defendant class certifications, severed the claims of the individual plaintiffs, and reversed and remanded to the district court. Thompson v Bd of Ed of Romeo Community Schools, 709 F2d 1200 (CA 6, 1983). On October 14, 1983, the federal district court issued an order providing for notice of decertification of the plaintiff and defendant classes.
On October 12, 1983, the present plaintiffs filed this cause of action in the circuit court, alleging violations of the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq.; the Michigan State Fair Employment Practices Act, MCL 423.301 et seq.; MSA 17.458(1) et seq.; the Fourteenth Amendment to the United States Constitution; and 42 USC 1983. The basis of plaintiffs’ claim is that defendants’ policies and practices treat pregnancy differently than other temporary disabilities. Plaintiffs seek compensation for sick pay, and/or back pay, plus any other damages to which they are entitled.
Defendants filed an answer stating that plaintiffs’ claims are barred by the statute of limitations, and filed a motion for accelerated judgment. In an opinion issued September 14, 1984, the circuit court granted defendants’ motion for accelerated judgment. Plaintiffs appeal as of right.
The issue on appeal is whether plaintiffs’ claims are barred by the statute of limitations or whether they were tolled during the pendency of the federal court action. The trial court opined that the issue was settled by the Supreme Court’s decision in Mair v Consumers Power Co, 419 Mich 74; 348 NW2d 256 (1984). We disagree.
In Mair, the Supreme Court held that a proceeding before a federal administrative agency does not toll the operation of the statute of limitations as it relates to a subsequent lawsuit in a Michigan state court. Mair involved a claim brought in a state circuit court subsequent to the dismissal of a complaint with the United States Equal Employment Opportunity Commission, filed pursuant to §706 of Title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq.
However, Mair can be distinguished from this case in several respects. First, in Mair, the defendant did not receive notice of the plaintiffs state claims until the filing of the action in the circuit court. The Supreme Court specifically noted, 419 Mich 84-85:
"Here, defendant was on notice of an administrative investigation under federal law, but was at no time during the period of the running of the statute of limitations put on notice of the possibility of having to defend a lawsuit under state law.” (Emphasis added.) (Footnote omitted.)
In this case, defendants received notice of the state claims against them four years prior to the filing of this action. It will be recalled that this case was filed in 1983, and the complaint in the federal court action was amended in 1979 to add the state claims (which related back to the filing of the original complaint in 1975).
Second, in Mair, the plaintiffs administrative complaint was dismissed on the merits. Then, instead of filing a lawsuit in federal court within 90 days after such a dismissal, the plaintiff filed a lawsuit in state court after the 90-day period had expired. The Supreme Court commented as to the apparent election of the plaintiff, 419 Mich 84:
"Plaintiff made a deliberate choice of that forum, and she had the opportunity to have her case decided on the merits both before the EEOC and in federal court had she filed a timely complaint there. If, indeed, plaintiff now simply wants her case decided in a different forum under different law, then that, in and of itself, would defeat the purpose of the tolling statute.”
In this case, there has never been a ruling, either by the federal court or the circuit court, on the merits of plaintiffs’ claims.
Third, and most obvious (although in an analytical sense the least significant) is that Mair was concerned with federal administrative proceedings, rather than with federal lawsuits. We could distinguish Mair solely on that ground if we wished. However, we choose to distinguish Mair on the basis of the first two considerations because they demonstrate the logic in our distinction.
Thus, without any Supreme Court decision to constrain our holding in one direction or another, we reconsider the question as to whether plaintiffs’ claims should be barred by the statute of limitations. The concerns of the Supreme Court in Mair —forum shopping and notice — are not present here.
We conclude that the plaintiffs’ claims under the Fourteenth Admendment and 42 USC 1983 are, nevertheless, barred by the statute of limitations. It will be recalled that when the federal district court certified the case as a class action, it only certified the claims under Title VII. In Crown, Cork & Seal Co, Inc v Parker, 462 US 345, 354; 103 S Ct 2393; 76 L Ed 2d 628 (1983), the United States Supreme Court held that once the operation of the statute of limitations has been tolled by the filing of a class action suit, it remains tolled until class certification is denied.
Therefore, pursuant to Crown, Cork & Seal Co, the federal district coúrt’s refusal to certify plaintiffs’ Fourteenth Amendment and 42 USC 1983 claims on May 27, 1976, caused the period of limitation on those claims to begin to run. The applicable period of limitation is only of three years duration, Gilbert v Grand Trunk Western Railroad, 95 Mich App 308; 290 NW2d 426 (1980), lv den 410 Mich 854 (1980). This cause of action was filed in October, 1983. Obviously, the period of limitation had expired on those claims.
However, the result is different for the claims under state law. It will be recalled that, although the Fourteenth Amendment and 42 USC 1983 claims were not certified, the Title VII claims were certified as a class action. Later, the complaint was amended to include the state claims, which related back to the filing of the original complaint. Therefore, the state claims were preserved by the federal district court action, and, if the federal district court action tolled the operation of the statute of limitations, the state claims are properly the subject of this lawsuit.
This Court has previously held that the filing of a federal lawsuit tolls the operation of the statute of limitations, Ralph Shrader, Inc v The Ecclestone Chemical Co, Inc, 22 Mich App 213; 177 NW2d 241 (1970), app dis 385 Mich 789 (1971). We conclude, for the reasons set forth above, that the federal district court action tolled the operation of the statue of limitations as to plaintiffs’ claims pursuant to the Elliott-Larsen Civil Rights Act and the Michigan State Fair Employment Practices Act. The trial court’s dismissal of those claims on the basis of the statute of limitations constitutes reversible error.
Affirmed in part; reversed in part. No costs.
Once class certification is denied, class members may choose to file their own lawsuits or move to intervene in the pending cause of action.
The fact that plaintiffs did not allege a Title VII violation in this case does not alter this analysis. | [
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R. B. Burns, J.
This appeal concerns the seizure of respondent’s property by the Detroit Police Department. Petitioners brought a petition for forfeiture under MCL 750.308; MSA 28.540 and MCL 750.308a; MSA 28.540(1).
Detroit police officer Joseph Monacelli testified that he and his partner, Thomas McFarland, were on routine patrol the morning of March 27, 1984, in the area of 19617 Van Dyke in the City of Detroit. Monacelli noticed a black Oldsmobile parked near the location and observed the passenger, a Mr. Czerwinski, get out of the car and walk toward the building at 19617 Van Dyke. The officers observed Czerwinski and the automobile leave the scene and twice return.
After the final return, Monacelli observed Czerwinski enter the building and come out 10 minutes later, carrying nothing in his hands. The officers arrested Czerwinski and the driver for breaking and entering. Monacelli then entered the premises to determine if there was any damage. He ob served no damage in the building but saw betting slips and other items of gambling paraphernalia.
A search warrant was subsequently obtained and members of the Detroit Police Department seized the items in question pursuant to the search warrant. Officer Elaine Kapelanski testified that she was a member of the crew that executed the warrant and that, while doing so, the telephones were constantly ringing. She answered one of the calls and received betting requests from the caller. She also testified that once, when she was standing by the front door, an envelope containing additional bet requests and money was dropped in the mail slot.
Respondent first argues that the officers’ initial entry into the building without a warrant was invalid and that the seized property was improperly admitted into evidence.
Appellate review of grants or denials of motions to suppress evidence is made on the "clearly erroneous” standard. People v Burrell, 417 Mich 439; 339 NW2d 403 (1983); People v Jackson, 123 Mich App 423; 332 NW2d 564 (1983). A finding is clearly erroneous where, although there is evidence to support it, the reviewing court is firmly convinced that a mistake has been made. People v Goss, 89 Mich App 598; 280 NW2d 608 (1979).
US Const, Am IV protects against unreasonable searches and seizures. Generally, searches without a warrant are held unreasonable. Nonetheless, an exception to the warrant requirement occurs when the search and seizure is of items in plain view. People v Whalen, 390 Mich 672; 213 NW2d 116 (1973). The "plain view” doctrine applies when an officer is rightfully in a position where the evidence is plainly visible. The initial intrusion must be justified, and discovery of the evidence must be inadvertent. Coolidge v New Hampshire, 403 US 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971); People v Harden, 54 Mich App 353; 220 NW2d 785 (1974).
We must determine whether there were sufficient "exigent circumstances” to warrant the officers’ presence inside the building. Respondent correctly states that People v Dugan, 102 Mich App 497, 503; 302 NW2d 209 (1980), establishes three kinds of probable cause in exigent circumstance cases that permit a search without a warrant:
"The 'exigent circumstances’ exception provides that when the police have probable cause to believe that a search of a certain place will produce specific evidence of that crime (the foundation requirements for issuance of a search warrant), there is no need for a warrant if the police also have probable cause to believe that an immediate warrantless search is necessary in order to (1) protect the officers or others, (2) prevent the loss or destruction of evidence, or (3) prevent the escape of the accused. People v Harris, 95 Mich App 507, 510; 291 NW2d 97 (1980). See United States v Chadwick, 433 US 1; 97 S Ct 2476; 53 L Ed 2d 538 (1977), People v Plantefaber, 91 Mich App 764, 770; 283 NW2d 846 (1979).”
Furthermore, our research, although not yielding a case with the same set of facts as the case at bar, indicates that there is a clearly established rule that public safety officials may enter a building without a warrant in order to protect persons or property, or to determine if there is a person in the premises in need of assistance. Michigan v Clifford, 464 US 287; 104 S Ct 641; 78 L Ed 2d 477 (1984); Michign v Tyler, 436 US 499; 98 S Ct 1942; 56 L Ed 2d 486 (1978); People v Reed, 112 Mich App 693; 317 NW2d 228 (1982).
In Tyler, the Court established a rule concerning entry into a building following a fire to investigate the fire:
"In summation, we hold that an entry to fight a fire requires no warrant, and that once in the building, officials may remain there for a reasonable time to investigate the cause of the blaze. Thereafter, additional entries to investigate the cause of the fire must be made pursuant to the warrant procedures governing administrative searches.” 436 US 511.
A different situation was presented to this Court in Reed. In that case, the police were summoned to an apartment after a tenant discovered his roommate and stereo missing, and blood, human flesh, and bloody towels in the bathroom. The police found blood in the stairwell and on the door leading to the defendant’s upstairs apartment. The police entered the apartment without a warrant and discovered the victim’s body. This Court affirmed the circuit court’s ruling that the entry without a warrant was allowable since the officer could reasonably conclude that there was an injured person in the defendant’s apartment in need of immediate aid.
After considering these cases, we believe that the appropriate rule to apply to the instant case is that, in addition to the factors stated in Dugan, supra, a police officer may enter a building within a reasonable time following a breaking and entering . in order to (1) secure the premises against further instrusion, (2) determine if the burglars set a fire, planted an explosive, etc., such that immediate action to prevent further property damage or personal injury is necessary, or (3) aid a victim in the building who may be injured or restrained.
There was a need to secure the premises. As discussed above, such a motive is a permissible reason to make an entry into a building without a warrant.
Another reason for the entry, given by Officer Stefanko, was that they would also check to deter mine if the perpetrators had placed a bomb or the like in the premises. This, of course, would necessitate checking every room. Furthermore, it is not entirely out of the realm of possibility since Czerwinski had not removed any property from the building. Thus, it would be reasonable for the officers to conclude that Czerwinski had gained entry for some illicit purpose other than theft. We conclude that it establishes a sufficient reason to justify the intrusion. Under the circumstances of this case, we are not left with the firm conclusion that a mistake has been made. The decision of the trial court finding the initial entry valid is affirmed.
Respondent also argues that the trial court erred in ordering the forfeiture of the computer equipment, which had not been removed from the packing boxes. Respondent’s theory is that the computer equipment belonged to the son of the owner of the premises and was merely being stored inside the building. Respondent contends that it was not shown that the computer equipment was connected to the gambling operation.
The trial court made a finding of fact that the computer equipment was subject to forfeiture. Findings of fact in a bench trial will not be disturbed on appeal unless clearly erroneous. MCR 2.613(C), formerly GCR 1963, 517.1; McRaild v Shepard Lincoln Mercury, Inc, 141 Mich App 406; 367 NW2d 404 (1985).
MCL 750.308; MSA 28.540 authorizes a police officer:
"to take into his custody all the implements, apparatus or material of gaming as aforesaid, including any articles, equipment, furniture, loud speakers and amplifying apparatus, adding machines, calculators, money changers and boxes and money found therein or in or on gambling apparatus, or material used in connection with or the promotion of gambling or a gambling place.”
MCL 750.308a; MSA 28.540(1) provides for the disposition of seized property.
We noted the broad applicability of these sections in Michigan ex rel Comm’r of State Police v One Helix Game, 122 Mich App 148, 155; 333 NW2d 24 (1982):
"The broad provisions in these sections allow for much more than the destruction of only games of pure chance. Any items used to promote gambling or a gambling place may be seized and ordered destroyed.”
After having reviewed the trial transcript, we cannot conclude that the trial court was clearly erroneous in finding that the property was subject to forfeiture.
We have considered respondent’s remaining issues and conclude that they do not merit reversal.
The decision of the trial court is affirmed. Costs to appellee. | [
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After Remand
Before: Bronson, P.J., and Mackenzie and J. H. Gillis, JJ.
Per Curiam.
Petitioner taxpayer appeals from a decision of the Michigan Tax Tribunal, which was entered after reversal and remand by this Court, Congresshills Apartments v Ypsilanti Twp, 102 Mich App. 668; 302 NW2d 274 (1981). In the present appeal, as in Congresshills, supra, the issue before this Court is whether the Tax Tribunal properly computed the true cash value of petitioner’s property for purposes of assessing taxes for the years 1977-1979. Once more, we reverse the Tax Tribunal’s computation of true cash value.
At the original hearing, before the remand in Congresshills, supra, the tribunal agreed with the parties that the proper method of determining true cash value was by capitalization of income. The tribunal adopted the capitalization rates advocated by petitioner, 13.68% for 1977; 13.6345% for 1978; and 13.9495% for 1979. None of these rates were the subject of any dispute in the appeal from those original proceedings, Congresshills, supra. The tribunal applied those rates to certain hypothetical market rental income figures advocated by the respondent township’s appraiser. This Court reversed, finding that the tribunal committed an error of law in using hypothetical rental rates which petitioner could not legally obtain as a low-income subsidized project. Congresshills, supra, p 677. The Court remanded for the purpose of recalculating true cash value based upon actual rather than hypothetical rental income.
On remand, consistent with this Court’s opinion in Congresshills, supra, the Tax Tribunal used actual income and expenses in arriving at its assessment of true cash value. The tribunal’s aggregate net operating income figure for the period in question was 55% less than before this Court’s order of remand. Nonetheless, its determination of true cash value on remand was almost identical to that which it made before remand. The tribunal reached this result by using drastically reduced capitalization rates, 6.24% for 1977; 6.1895% for 1978; and 6.201% for 1979. For reasons both substantive and procedural, we believe that the tribunal’s use of these reduced capitalization rates was erroneous as a matter of law.
First, we believe that the use of the reduced capitalization rates was substantively erroneous, in that those rates impermissibly incorporate the value of the federal interest subsidy as a real estate value. Although the tribunal’s opinion did not state that its purpose was to tax this interest subsidy, there can be little doubt that this was the tribunal’s intention. At least one of the tribunal judges stated on the record that "this tribunal * * * is * * * of the opinion that somehow the subsidy figures into the value of [the] parcel”. However, the interest subsidy is an intangible asset or benefit which cannot properly be subject to taxation as "real” or "tangible” property under Const 1963, art 9, § 3. The statute authorizing ad valorem taxation of "real property”, MCL 211.2; MSA 7.2, defines such property narrowly to include only "lands within the state, and all buildings and fixtures thereon, and appurtenances thereto” and contains no language which would permit taxation of an intangible benefit or asset such as an interest subsidy. Compare also the definition of "tangible property” contained in Black’s Law Dictionary (4th ed), p 1267, defining such property as being "necessarily corporeal” in nature. To define an interest subsidy as a tangible asset or real property subject to taxation would be to extend Michigan’s property tax laws by implication, a practice condemned in Continental Motors Corp v Muskegon Twp, 365 Mich 191; 112 NW2d 429 (1961); see also General Motors Corp v Detroit, 372 Mich 234; 126 NW2d 108 (1964).
Petitioner also demonstrates that the tribunal’s method of deriving capitalization rates disregards the actual amount of the required debt service for petitioner’s property, while erroneously projecting a positive return on petitioner’s equity. Specifically, petitioner points out that the tribunal’s capitalization rates are based upon an assumed return of six percent on the petitioner’s equity of ten percent of the value of the project — a figure based upon the maximum permissible return on equity for such projects under applicable federal regulations — rather than on petitioner’s actual return. Petitioner goes on to point out that it has never experienced the distribution projected by the tribunal but that it has instead run a substantial annual deficit. Petitioner notes the crucial factor underlying this disparity: the principal amount of the mortgage, $4,767,300, is clearly far greater than the market value of the development, a circumstance which is common in federally subsidized low-income housing developments. See Community Development Co of Gardner v Board of Assessors of Gardner, 377 Mass 351; 385 NE2d 1376 (1979), where the Court observed:
"The great dilemma in assessing federally assisted housing projects is that the 'value’ of these projects is inherently ambiguous. Construction costs are known; but these overstate the market value of the project, since in the absence of subsidy the rental stream produced by the property would not justify the actual expenditure on construction.” 385 NE2d 1378.
Accord, First Federal Savings & Loan Ass’n v Flint, 415 Mich 702; 329 NW2d 755 (1982), where our own Supreme Court cited government-subsidized construction as an example of property with a taxable market value less than its cost:
"Governments * * * for reasons of policy * * * build * * * private housing in neighborhoods where private entrepreneurs will not build, which [projects] are worth less on the market than they cost to construct.” 415 Mich 705, fn 4.
"If the government were to sell an overimprovement to a private person, market price rather than the cost of construction would govern for ad valorem tax purposes. If the government subsidizes a private enterprise in constructing such structures, the market value rather than cost would govern.” 415 Mich 706, fn 5.
In the present case, petitioner’s project is clearly one which falls within the category of those described by the Courts in Community Development Co, supra, and First Federal Savings, supra. Yet the Tax Tribunal’s cash value determination on remand differs remarkably little from that which it reached in the original proceedings, when it expressly disregarded the project’s governmental purpose and governmentally imposed rental income limitations. In short, by treating the interest subsidy as a taxable element of value comparable to the rental income of an unregulated commercial enterprise, the tribunal has completely overlooked the governmental purpose underlying petitioner’s project and has in the process imposed a tax upon an intangible benefit, contrary to Const 1963, art 9, §3.
Our conclusion in the present case is consistent with the result in Community Development Co, supra. In that case, the Court noted that it was improper for assessors to treat mortgage interest reduction payments as a subsidy in determining gross income. The Court did not say whether interest reduction payments should influence the capitalization rate, but the fact remains that in that case an undisputed capitalization rate of 18.04% was applied by the assessors. 385 NE2d 1378, fn 8. This fact alone compels the conclusion that the tribunal erred in relying on the interest subsidy as a reason to reduce the previously established capitalization rates of 13.68%, 13.63%, and 13.49%. These original rates were already substantially lower than those applied to the comparable project in Community Development Co, supra. The reduced rates on remand, 6.24%, 6.1895%, and 6.201%, contrast so sharply with those in Community Development Co, that we have little choice but to concur in petitioner’s characterization of them as "absurdly low” and erroneous as a matter of law.
Even if this Court could, as a substantive matter, justify the tribunal’s use of reduced capitalization rates on remand, we find merit in petitioner’s alternative argument that the tribunal’s disposition of the issue was procedurally improper. As noted above, the tribunal originally agreed with petitioner that the rates should be 13.685%, 13.6345%, and 13.9495% for the three tax years in question. These rates were not disputed in the first appeal to this Court, Congresshills, supra. As a result, before the remand in Congresshills, supra, neither party had occasion to address the issue of capitalization rates. Since respondent’s witnesses were all in substantial agreement with petitioner’s proposed rates, there was no occasion to even cross-examine witnesses as to the issue, let alone to submit extensive argument either before or immediately after remand. Under the circumstances, it is apparent to this Court that petitioner had no notice whatsoever that capitalization rates would be an issue on remand.
When on remand the tribunal revealed its intention to recompute the rates so as to adversely affect petitioner, it flatly refused to afford petitioner an opportunity to be heard as to the issue. The tribunal denied petitioner’s request for a de novo hearing on remand and, after announcing its finding of reduced rates, denied petitioner’s motion for rehearing requesting an opportunity to present evidence which might "show * * * that the capitalization rates adopted by the tribunal [on remand] incorporate both errors of law and errors of fact”.
In short, the foregoing reveals that the tribunal deprived petitioner of both of the essential elements of procedural due process as to the issue: (1) notice, and (2) an opportunity to be heard. See, e.g, Pavilion Apartments, Inc v State Tax Comm, 373 Mich 601; 130 NW2d 399 (1964). In the present case, as in Pavilion Apartments, supra, the taxing authority in reaching its decision relied upon certain "information”, and followed a particular line of reasoning, which was not known to the taxpayer until the decision had been made and finalized. More importantly, in the present case, as in Pavilion Apartments, supra, the petitioner taxpayer was completely deprived of an opportunity to conduct a hearing to challenge the findings which resulted from the tribunal’s unexplained process of deliberation.
Respondent makes much of the fact that the tribunal invited the parties to file briefs on the issue of whether subsidy income should be used in arriving at a capitalization rate. We attach little significance to this gesture. The mere invitation to file a brief does not translate into an effective opportunity to be heard as to this particular issue. So long as the capitalization rates were essentially undisputed, as had been the case before remand, there was no need for either party to submit any evidence as to the issue. However, once the tribunal announced its decision to reduce the rates, certain questions of fact were raised which had never been addressed at all. The parties — and particularly the adversely affected party, petitioner — needed an opportunity to go beyond merely submitting additional argument, the function of a memorandum or brief.
The only effective "hearing” would have been one in which petitioner had an opportunity to challenge the factual assumptions underlying the tribunal’s findings and, if necessary, to submit evidence of its own. Absent such an opportunity, any "hearing” afforded petitioner by the tribunal was at best incomplete.
Respondent also urges that one of petitioner’s principals, Mr. Irving Seligman, waived all objection to the tribunal’s method of calculating income and capitalization rates. In this regard, appellee places great emphasis on a single colloquy which took place between Seligman and one of the tribunal judges. We believe that respondent misplaces reliance on this colloquy and that there was no voluntary and knowing waiver of objection as to the issue. The record reveals that Seligman was not familiar with all of the mathematical principles involved in the process of capitalization. It follows that any indication of agreement with the tribunal’s methods was based on a misapprehension of the tribunal judges’ remarks, rather than any fully enlightened or well-considered statement of petitioner’s position. We also disagree with respondent’s suggestion that petitioner could have intended this brief, spontaneous colloquy to serve as a substitute for its right to a full-scale evidentiary hearing as to the issue of capitalization rates. We find that respondent’s claim of waiver strains credulity in light of the continued objections raised by Seligman and petitioner’s other representatives to the tribunal’s findings as to income, mortgage debt service, and capitalization rates and to the tribunal’s determination of true cash value. .
We also believe that the issue of waiver is far more damaging to respondent than it is to petitioner. This follows because, while Seligman’s waiver of objection was at best uninformed and spontaneous in nature, respondent’s own conduct regarding the issue of capitalization rates is remarkably consistent with the argument that respondent waived objection to the tribunal’s original findings as to those rates. This follows from our observation that, even though respondent advocated rates somewhat different from those adopted by the tribunal in its original decision, it chose not to object to the tribunal’s findings in that regard and submitted no cross-appeal challenging the original rates. Respondent’s silence as to the tribunal’s original choice of rates was hardly a fleeting and spontaneous manifestation of its acquiescence; respondent omitted for more than a year to raise any objection as to this issue while the original appeal was pending in this Court. Furthermore, respondent’s apparent acquiescence in the tribunal’s original determination of rates can hardly be characterized as the result of a misunderstanding of the principles involved in deriving those rates. All of respondent’s witnesses and representatives, including respondent’s attorney, had an extended period of time to study the principles of capitalization and to enhance their comprehension of the issue. We conclude that it Was respondent, rather than petitioner, who waived objections as to this issue.
At the very least petitioner should have had an opportunity to conduct an evidentiary hearing to challenge the tribunal’s decision to reduce capitalization rates on remand. Although, under normal circumstances, an order directing the tribunal to hold such a hearing might have been sufficient to protect petitioner’s due process rights, we believe that, under the circumstances of this case, any further order of remand would be a waste of time for all parties concerned.
We also note that there is no need to hold any hearing in order to establish a reasonable capitalization rate which would be acceptable to both parties. The rates established by the tribunal before this Court’s first order of remand were those advocated by petitioner, and those rates of capitalization have never been disputed by respondent. Given this fact, and given further that there is no demonstrable basis for the tribunal’s finding of reduced rates or, for that matter, the use of any alternative schedule of rates, we hold that the proper capitalization rates are those determined by the tribunal prior to this Court’s first order of remand: 13.685% for 1977; 13.6345% for 1978; 13.9495% for 1979. "True cash value” for petitioner’s property must be computed using these rates. Rather than entering a second order of remand directing the tribunal to substitute these rates into its formula for determining "true cash value”, we grant petitioner’s request to enter our own order incorporating cash values based upon these rates. This method of disposition is consistent with that used by the Supreme Court in CAF Investment Co v Saginaw Twp, 410 Mich 428; 302 NW2d 164 (1981).
"True cash values” for each of the tax years in question are therefore determined to be as follows:
1977 $1,380,219
1978 $1,871,048
1979 $1,390,946
The order of the Tax Tribunal establishing different cash values must be reversed, and the matter remanded for the sole purpose of computing the amount of petitioner’s tax liability based upon the foregoing cash values. The tribunal shall enter its order computing petitioner’s tax liability within 30 days of the issuance of this opinion.
Reversed.
By means of the following charts, derived in turn from affidavits, petitioner compares its actual experience for the year 1977 with that projected by the tribunal’s methods:
In its responsive brief on appeal, respondent does not even suggest how the foregoing analysis may be faulty, and nothing in its arguments here or in the proceedings below demonstrate how the tribunal’s figures, based on assumptions contrary to petitioner’s actual experience, can be justified.
Nothing in the record below nor in respondent’s brief on appeal suggests how the project in Community Development, supra, might be distinguished from petitioner’s in the present case. Certainly, neither respondent nor the tribunal has provided this Court with any explanation of circumstances which might justify the decision to use capitalization rates which differ so markedly from those found appropriate for the presumably comparable subsidized housing project in Community Development, supra. Cf. also Kargman v Jacobs, 411 A2d 1326 (RI, 1980); Royal Gardens Co v City of Concord, 144 NH 668; 328 A2d 123 (1974), where the courts approved capitalization rates of 16.4% and 16.96% for federally subsidized housing projects indistinguishable from the present one.
It is true that the original rates were not specifically "presented to and decided by this Court in prior appeal” and as such cannot fairly be characterized as the law of the case, cf. CAF Investment Co v Saginaw Twp, 410 Mich 428, 456; 302 NW2d 164 (1981). However, given respondent’s apparent waiver of objection as to these rates, noted supra, we perceive no bar to their application here.
We adopt petitioner’s proposed process for calculating true cash value (column 3) based upon the tribunal’s post-remand determination of net operating income (column 1) and its pre-remand determination of the capitalization rate (column 2):
1977 $188,883.00 .13685 $1,380,219.00
1978 $255,108.00 .136345 $1,871,048.00
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Per Curiam.
Plaintiffs appeal as of right from the December 2, 1980, lower court order granting partial summary judgment in favor of the defendant on the ground that plaintiffs’ negligence claim against defendant was precluded by the governmental immunity statute. MCL 691.1407; MSA 3.996(107). The gist of plaintiffs’ complaint is that raw sewage from the defendant village’s sewer system backed up into their home on at least six occasions between December 4, 1979, and March 29, 1980. Defendant’s motion for partial summary judgment as to the negligence count of plaintiffs’ complaint was premised on the argument that the establishment and maintenance of a municipal sewage system is a governmental function for which the governmental unit is immune from tort liability.
In Rubino v Sterling Heights, 94 Mich App 494; 290 NW2d 43 (1979), this Court held that the operation of a municipal water system is not a governmental function. Similarly, in Ross v Consumers Power Co, 93 Mich App 687; 287 NW2d 319 (1979), lv gtd 408 Mich 959 (1980), this Court found that an analogous activity, the construction of a drain, also was not a governmental function. Although this Court did find that a six-county sewer project in southeastern Michigan was a governmental function in Davis v Detroit, 98 Mich App 705; 296 NW2d 341 (1980), lv den 410 Mich 856 (1980), it did so because of the likelihood that it could not be undertaken by any private corporation.
Examining the governmental activity in the case before us, we find that it is more like that considered by this Court in Rubino and in Ross than that which was before us in Davis. Thus, we conclude that the operation of defendant’s sewer system is not an activity that can only be accomplished by the government. For this reason, its operation does not constitute a governmental function.
The December 2, 1980, lower court order granting partial summary judgment in favor of defendant is reversed and this cause is remanded for further proceedings consistent with this opinion. | [
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Bronson, P.J.
Petitioners appeal as of right from a Michigan Tax Tribunal judgment entered on January 30, 1981, affirming their 1979 real property assessment of $65,000. It is petitioners’ contention that this assessment was discriminatory and nonuniform in that the ratio of assessed to true cash value of their property exceeded the average ratio applied to all other realty within the City of Birmingham (the taxing district).
A hearing was conducted before the tribunal on November 4, 1980. No proofs were presented going to the ratio of assessed to true cash value of petitioners’ property because the parties stipulated that this property had been assessed at 50% of its true cash value. Petitioners asserted at the hearing that the average level of assessment in the taxing district lies somewhere between 34.81% and 43.32% of a given property’s true cash value.
For the assessment year 1979, the City of Birmingham contracted with the Oakland County Equalization Department to appraise all of the property in the taxing district. Apparently, this contract was entered into because Birmingham’s assessor resigned at an awkward time, and the city could not obtain another assessor with sufficient expertise and knowledge of the property within the taxing district to conduct the 1979 reappraisal.
Kelly Sweeney, who became the assessor for the City of Birmingham for the 1980 assessment year, indicated that he was present during a portion of the 1979 reappraisal process. As to the method used to determine an assessed value for petitioners’ property, Sweeney testified:
"Well, as was previously stated, the true cash value was arrived at through a reappraisal done by the Oakland County Equalization Department and through that reappraisal, every property was physically inspected. This property was entered on 12/18/1978. It was measured. The physical characteristics of the property were noted by the appraiser. It was placed — a class was placed on the property, age of construction was entered and all the physical characteristics were entered in and a value of the property was determined based upon the manual published by the State Tax Commission with respect to cost per square foot and so on and so forth and a cost approach appraisal was done, that was then compared to market sales over a 30-month period in arriving at an economic condition factor which was then applied to the depreciated reconstruction cost new of the property. That depreciated reconstruction cost new for the building was then added to the land value to arrive at a true cash value.”
William Hoover, assistant manager of the Oakland County Equalization Department, indicated that the basic adjusted-cost-of-reproduction approach described by Sweeney as used in determining petitioners’ assessment was utilized throughout the taxing district. Hoover further indicated, however, that for the City of Birmingham market data from 1977 and the first six months of 1978 were used to establish the applicable economic factors. Sales data from 1976 were not used because the market had substantially changed from that year. Thus, instead of the normal 30-month study, as is applicable to the actual assessments made within the taxing district, only an 18-month study was used. No testimony was adduced which indicated with any specificity just how the "economic condition factor” (as stated by Sweeney) or the "economic factor” (as described by Hoover) was actually derived. From the record before us, all that we can ascertain with certainty is that this factor was somehow related to market activity for the year 1977 and the first six months of 1978. There is some suggestion in the record that the analysis proceeded as follows. The sales prices of those properties actually sold were compared to their then-assessed value. If, for example, in a given neighborhood within the taxing district, the assessed values of properties sold within the 18-month period were 10% under 50% of the sales price of those properties, the cost of reproduction less depreciation of any structures in the neighborhood, which had served as the original basis for the appraiser’s asessment, would be increased by 10% (the economic factor) and added to the value of the land to achieve a true cash value figure.
Hoover admitted that actual sales prices of those properties sold during the 18-month period constituted just one factor in determining the true cash value, as determined by the Oakland County Equalization Department, of even those properties. Thus, any property sold during this period would be unlikely to have a 1979 assessment at 50% of the sales price. Instead, Hoover stated that true cash value was determined in accordance with State Tax Commission guidelines.
As to Birmingham, the Oakland County Equali zation Department was not only responsible for the 1979 reappraisal but also for conducting the 1979 equalization process. Hoover testified that the State Tax Commission required the use of a 30-month sales study to establish equalized value, and that this was done here.
The study in question was identical with the 18-month study used in the 1979 reappraisal process, except it also took into account 1976 sales for purposes of determining equalized value. For the 427 verified sales of properties which occurred in 1977, the ratio of 1979 assessed value to sales price equaled an overall average of 49.84% for all properties sold. For the 306 verified sales which occurred in 1978, the overall assessed value totaled 41.76% of sales price. The combined 1977 and 1978 sales figures, as a ratio to 1979 assessed value, showed an average assessment rate of 45.80%. However, for the purpose of determining a state equalized value for the taxing district, Hoover and his staff included 1976 sales (for which no exhibit pertaining to sales figures and ratios to 1979 assessments was submitted). According to Hoover, the 1976 sales figures, when compared to 1979 assessments, resulted in a percentage ratio of sales price to 1979 assessed price in the upper fifties. Since the State Tax Commission required the use of the 1976 sales in determining state equalized value, the ratio of true cash value to assessed value (using the State Tax Commission approach) totaled 50%.
It was petitioners’ contention that actual sales figures should be the predominant factor used in the assessment process. Petitioners introduced exhibits setting forth a market analysis. For selected sales of properties during the first and second quarters of 1978, the 1979 assessed values, as a percentage of the actual sale prices, equaled approximately 43%.
The Tax Tribunal accepted the validity of the Oakland County Board of Equalization’s approach, and rejected petitioners’ market analysis. As such, the tribunal found that respondent had met its burden of showing that the average level of assessment within the taxing district was 50% of true cash valué.
At the outset, we note that our review of Tax Tribunal determinations, when fraud is not alleged, is limited to questions of whether the tribunal committed an error of law or adopted a wrong principle. Rogoski v Muskegon, 101 Mich App 786, 789-790; 300 NW2d 695 (1980), and cases cited therein. Respondent asserts that the Tax Tribunal’s finding of uniformity of assessment levels is a finding of fact not subject to our review. This contention is accurate when the underlying principles and legal analyses adopted by the tribunal are not erroneous. Wolverine Tower Associates v Ann Arbor, 96 Mich App 780, 783; 293 NW2d 669 (1980). However, petitioners here essentially assert that the factual finding of uniformity proceeded from the tribunal’s underlying acceptance of "wrong principles”. Therefore, we believe that petitioners’ arguments must be considered on their merits.
Petitioners, relying on the statutory definition of "cash value”, MCL 211.27(1); MSA 7.27(1), contend that the tribunal erred in accepting respondent’s adjusted-reproduction-less-depreciation method of determining the 1979 assessment levels, and that the finding of uniform taxation levels at 50% of true cash value in the taxing district was a product of both this improper assessment method and the fact that, for purposes of determining uniformity of taxation, the tribunal used a sales study extending over a 30-month period and back to 1976. MCL 211.27; MSA 7.27 provides as is pertinent:
"(1) 'Cash value’ means the usual selling price at the place where the property to which the term is applied is at the time of assessment, being the price which could be obtained for the property at private sale, and not at forced or auction sale. * * * In determining the value the assessor shall also consider the advantages and disadvantages of location, quality of soil, zoning, existing use, present economic income of structures, including farm structures and present economic income of land when the land is being farmed or otherwise put to income producing use, quantity and value of standing timber, water power and privileges, mines, minerals, quarries, or other valuable deposits known to be available in the land and their value.
"(4) Except as provided in subsection (5), property shall be assessed at 50% of its true cash value in accordance with section 3 of article 9 of the state constitution of 1963.”
The tax day is December 31st of each year. MCL 211.2; MSA 7.2. We are thus concerned with whether the Tax Tribunal accepted a method of appraisal which was reasonably calculated to value all property within the taxing district at 50% of its true cash value on December 31, 1978.
True cash value need not be determined exclusively by reference to the usual selling price. There are three generally accepted approaches to ascertaining true cash value: market analysis (the approach advocated by petitioners), reproduction cost less depreciation (an adjusted method of which was used by the respondent and accepted by the tribunal), and the capitalization-of-income method (which has no applicability to evaluating the worth of residential properties). See, on the accepted approaches to assessment issues, Antisdale v City of Galesburg, 109 Mich App 627, 630; 311 NW2d 432 (1981), and cases cited therein. Nonetheless, it is equally obvious that a method must be chosen which is likely to render the most accurate results. Id., 631, and cases cited therein. Thus, we reject the implication in respondent’s brief that the tribunal can select in its discretion any accepted method, regardless of the particular circumstances of the situation. Again, for instance, the Tax Tribunal would obviously have adopted a wrong principle in using the capitalization-of-income method to determine the true cash value of single-family residential properties in Birmingham.
In our opinion, the assessment approach accepted by the Tax Tribunal in this case constituted the adoption of a wrong principle. The adjusted-cost-of-reproduction-less-depreciation method is most suitable for industrial facilities for which no market, an inadequate market, or a distorted market exists. Consumers Power Co v Big Prairie Twp, 81 Mich App 120, 129-137; 265 NW2d 182 (1978); Helmsley v Detroit, 380 F2d 169, 170-172 (CA 6, 1967), cert den 389 US 976; 88 S Ct 479; 19 L Ed 2d 469 (1967).
In the instant case, petitioners proved that the 1979 assessments for properties sold over a period extending from November 23, 1977, through June 13, 1978, almost never equaled 49%, 50%, or 51% of the earlier sales price.* Of 119 comparisons of sale prices to 1979 assessments, only five properties fell within the range of 49.0% to 51.0% of assessed value to sales price. The range of the ratio between 1979 assessed value and sales price extended from a low percentage of 29.4 to a high percentage of 58.14. The overall level of assessed value to sales price was approximately 43%. We accept the notion that the actual sales price of a property does not necessarily equal its true cash value for any number of reasons. We emphasize, however, that the comparison study relied upon by petitioners used sales which were deemed sufficiently verifiable and indicative of the market to be used in the Oakland County Equalization Department’s 18- and 30-month market studies. It defies reason that, in just the few short months between the sale of the properties in issue and the tax date, 114 of the 119 properties analyzed by the petitioners failed to have "true cash values” which fell within a ratio of from 49% to 51% of sales price. Indeed, the only explanations for this phe nomenon by respondent’s witnesses were that "sales price” was just one of many factors considered in the appraisal process and that the State Tax Commission guidelines required them to assess the taxing district’s properties in the fashion respondent utilized. For instance, Mr. Hoover indicated:
"The assessor is not supposed to establish his true cash value on, for assessment purposes, based on individual sales. He’s supposed to establish the level of assessment based on a 30-month study and it’s his job to develop the correct level of assessment or a 50% level based on a 30-month study and still maintain equity between all the properties within the unit.”
The record before us clearly indicates that the State Tax Commission requires a 30-month sales study to be prepared for purposes of state equalized valuation. It is less clear whether the State Tax Commission mandates any particular method for conducting the yearly assessments. For instance, while Hoover testified that a 30-month study was supposed to be used for assessment purposes, he acknowledged that only an 18-month study was used here. Thus, if the State Tax Commission does mandate the use of the 30-month study in the yearly reappraisal, as opposed to equalization, process, the Oakland County Board of Equalization did not feel bound by the tax commission directive. In any case, the State Tax Commission cannot permissibly mandate that an assessment procedure be used which does not result in a relatively accurate "cash value” for each property and an assessment at 50% of this cash value on the applicable tax date. See MCL 211.27(1), 211.27(4); MSA 7.27(1), 7.27(4).
The problem in this case seems to be that the Oakland County Board of Equalization was more interested in achieving a state equalized valuation factor of 1.00 than it was in accurately determining the true cash value of the properties within Birmingham on December 31, 1978. Thus, while for purposes of state equalization the Oakland County Board of Equalization, using tax commission procedures, was able to show an overall average ratio of cash to assessed value of 50%, the actual assessments of individual properties within the taxing district only equaled 50% of true cash value in rare cases.
The State Tax Commission’s scheme for equaliz ing values, although uniform throughout all 83 counties, suffers from the fact that the housing market is unlikely to remain stable over a period of 30 months. In conducting its assessments of properties in Birmingham, the Oakland County Board of Equalization corrected for the inadequacies of the 30-month study by generally undervaluing the property in Birmingham so as to be able to achieve a state equalized value of 1.00. Had the board of equalization actually rendered 1979 assessments at 50% of true cash value on December 31, 1978, the taxing district would have had a state equalized value factor of less than 1.00. Respondent asserts that the 30-month sales study is advantageous to the taxpayer in inflationary times. This contention is true for most taxpayers, but all this means is that property owners end up with assessments less than 50% of the true cash value of their property on the applicable tax date of each year because the effects of inflation are discounted. Correspondingly, however, in a deflationary market, the 30-month study will consistently overvalue the taxpayers’ properties. Moreover, in conceding that the 30-month sales study insulates the taxpayer from inflationary increases and deflationary decreases, respondent is virtually admitting that its method of calculating cash value has little to do with the true cash values of real properties on December 31st of each year.
It is our opinion that petitioners have adequately proved that the average ratio of assessed to true cash value in the taxing district for the year 1979 was 43%, and not 50% as respondent claims. If we were to give effect to the stipulation between petitioners and respondent, that petitioners’ property was assessed at 50% of true cash value, we would have to conclude that petitioners were eligible for a reduction of their property’s assessment to $58,050, representing 43% of the stipulated true cash value of $130,000, based on the uniformity clause of the state constitution, Const 1963, art 9, § 3. Brittany Park Apartments v Harrison Twp, 104 Mich App 81, 87-88; 304 NW2d 488 (1981). However, we decline to give effect to the stipulation.* **** Respondent’s agreement to this stipulation was apparently premised on its view that the assessment method it pursued would be accepted. However, we held in Brittany Park, that respondent’s adjusted-cost-of-reproduction-less-depreciation method should not have been used, and a market approach should have been utilized in stead. Before the Tax Tribunal, petitioners’ attorney admitted that the reason he was accepting respondent’s appraisal of petitioners’ property at $130,000 was because this appraised price was "probably low”. Thus, petitioners would have us utilize their method for determining the ratio of assessed to true cash value of all property within the taxing district except their own. As to their own property, they want us to use respondent’s method of valuation. To do so would result in an invalid and incongruous comparison.
The Tax Tribunal is not required to accept the valuation figure advanced by the taxpayer, the valuation figure advanced by the assessing unit, or some figure in between these two. It may reject both the taxpayer’s and assessing unit’s approaches. See Clark Equipment Co v Leoni Twp, 113 Mich App 778; 318 NW2d 586 (1982). The Tax Tribunal acknowledged that: "We must * * * make our own finding of true cash value.” See Consolidated Aluminum Corp, Inc v Richmond Twp, 88 Mich App 229; 276 NW2d 566 (1979). Here, however, the tribunal agreed that respondent’s adjusted-cost-of-reproduction-less-depreciation method of determining true cash value was proper and, in accord with this method, that petitioners’ property was properly assessed at 50% of its true cash value. In light of the fact that we reject respondent’s approach as a means of accurately establishing the true cash value of, at least, the residential properties in the taxing district, we remand this matter to the Tax Tribunal to allow petitioners to prove that under a market analysis their property is assessed at a level higher than 43% of true cash value.
Remanded for proceedings consistent with this opinion. If petitioners choose to pursue their action, they must move for a hearing on remand within 30 days of the release of this opinion. We retain jurisdiction. No costs, a public question being involved.
Actually, as to petitioners’ property, the method described by Sweeney was only the first step in the appraisal process. Using this adjusted cost of reproduction less depreciation approach, the Oakland County Board of Equalization decided that petitioners’ property had a true cash value of $187,500. However, the first assessment for 1979 was for $76,200. Following an assessor’s review this was reduced to $71,500. Then, following a complaint to the board of review, this was further reduced to $65,000.
Only those sales for which the Oakland County Board of Equalization verified both the sales price and that the sale was a bona fide arm’s length transaction were included in the data base for the 18- and 30-month studies. Reasons for rejecting a sale included unusual financing, whether personal property was also involved, whether the buyer and seller shared the same last name, and whether the sale was a probate sale.
The overwhelming number of sales analyzed actually occurred between the months of January, 1978, and June, 1978.
MCL 211.27(1); MSA 7.27(1) includes a number of factors other than "usual selling price” which might affect true cash value. However, most of those would have no bearing on the assessments in this case and, to the extent any applicable factors might affect true cash value, only location was apparently considered during the assessment process. Moreover, there is absolutely no indication in the record that any distortions caused by those factors were not simply taken into account by the forces of the market and, thereby, increased or decreased "usual selling price” accordingly.
MCL 211.27(3); MSA 7.27(3) also provides for the exclusion of amounts paid for real property in certain circumstances. This provision provides:
"(3) Beginning December 31, 1978, a city or township assessor, a county equalization department or the state tax commission before utilizing real estate sales data on real property purchases, including purchases by land contract, for the purpose of determining assessments or in making sales ratio studies for the purpose of assessing or equalizing assessments shall exclude from the sales data the following amounts to the extent that the amounts are included in the real property purchase price and are so identified in the real estate sales data or certified to the assessor as provided in subdivision (d):
"(a) Amounts paid for obtaining financing of the purchase price of the property or the last conveyance of the property.
"(b) Amounts attributable to personal property which were included in the purchase price of the property in the last conveyance of the property.
"(c) Amounts paid for surveying the property pursuant to the last conveyance of the property. The legislature may require local units of government, including school districts, to submit reports of revenue lost under subdivisions (a) and (b) and this subdivision so that the state may reimburse those units for that lost revenue.
"(d) On or after December 31, 1978, the purchaser of real property, including a purchaser by land contract, may file with the assessor of the city or township in which the property is located 2 copies of the purchase agreement or of an affidavit which shall identify the amount, if any, for each item listed in subdivisions (a) to (c) of this subsection. One copy shall he forwarded by the assessor to the county equalization department.”
It appears that when the Oakland County Board of Equalization was confronted with one of these situations, it simply eliminated the sale from the data base.
In Antisdale v City of Galesburg, 109 Mich App 627; 311 NW2d 432 (1981), two members of this panel, Judges Cynar and Bronson, disagreed over whether sales price should be taken as reflecting true cash value where extremely favorable financing terms were part and parcel of the transaction. Judge Cynar’s majority opinion held that, under the circumstances, sale prices were a proper indication of true cash value. Judge Bronson’s dissenting opinion took the position that what was being purchased was the property and a favorable financing package and that sales price consequently reflected more than true cash value. In any case, there is no indication that here the assessors’ appraisals of the 119 properties used in petitioners’ sales analysis were discounted because of financing terms.
The purpose of the state equalization process is primarily to insure uniformity of taxation between all taxing units. Thus, to the extent that the housing markets in the entire state are either all stable, all increasing, or all decreasing, the use of the 30-month sales study in determining state equalized value, as opposed to true cash value, does no real harm and may be beneficial due to the existence of an expanded data base. However, as a means of determining true cash value on December 31st of each year, the 30-month sales study is only effective in an unchanging market. Had the Oakland County Board of Equalization been more concerned with correctly assessing the property in Birmingham at 50% of true cash value on December 31, 1978, the overall assessments would have been higher, but because of the lag time embodied in the 30-month state equalization technique, the state equalized value for these properties would have had an equalization factor of less than 1.00.
Assuming the overall housing market in the State of Michigan over the 30-month period of 1976, 1977, and the first six months of 1978 was accurately reflected by the Birmingham housing market, because of the lengthy lag time, it would seem that the equalization process was actually equalizing property values at approximately 43% of true cash value, as opposed to 50%. Correspondingly, now that the housing market has depressed, a current 30-month sales study used for equalization purposes might well show, because of the lag time, that the state is equalizing property values at some percentage above 50% of true cash value.
Basically, the respondent should never have agreed to a blanket stipulation that petitioners’ property was assessed at 50% of true cash value. Since it was obvious that petitioners intended to contest the assessment approach that respondent utilized, respondent should have insisted that petitioners prove under the approach they advocated that its property was assessed at a higher ratio to true cash value than all other properties in the taxing district.
Since petitioners concerned themselves only with properties actually sold, it is unclear how they believe their market approach can be extended to other properties within the taxing district which were not sold. It is our opinion, however, that an examination of the physical characteristics of petitioners’ property in comparison with similar properties sold is probably the most efficacious approach. Thus, the appraisal method would be somewhat like that which Mr. Sweeney specified was actually done, only reversing the order in which actual market sales are considered from a last step to a first step. Instead of using the market data solely as a means of adjusting the true cash value figure derived from the cost-of-reproduction-less-depreciation method adopted by respondent, the market data would be the starting point from which adjustments of all varieties would proceed. | [
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Allen, P.J.
Does the language "other services necessary as a result of the injury upon which a claim is based”, appearing in § 1(e) of the crime victims compensation act, MCL 18.351 et seq.; MSA 3.372(1) et seq., provide for reimbursement for services apart from and in addition to medical care and nonmedical remedial treatment? Are claimed babysitting and housekeeping expenses awardable as "loss of support” under § 11(1) of the statute, MCL 18.361(1); MSA 3.372(H)(1)? These questions of first impression come to us on leave granted on the following facts.
Plaintiff’s wife, Dawn Jerome, was found strangled to death on October 2, 1979. The killer has never been found. Dawn was survived by her husband and two daughters, Amber, then age seven, and Amy, then age one. Within the time limitations set forth in the statute, plaintiff applied for ambulance costs of $78, funeral expenses of $2,180.68, and reimbursement for payments to his mother for babysitting and housekeeping, totalling $2,556 for 22 weeks. August 6, 1981, the Crime Victims Compensation Board entered an award of $78 for ambulance costs, $1,500 for funeral expenses and denied the claim for child care. Plaintiff requested a hearing which was held before the board in June, 1981. On August 19, 1981, the board affirmed its previous award. Babysitting and housekeeping expenses were denied for the following reasons:
"5. On August 19, 1980, the claimant made partial appeal of the decision and requested reconsideration for babysitting and housekeeping expenses. The claimant claimed babysitting and housekeeping expenses fall within the definition of 'out-of-pocket loss’ within the meaning of § 1(e) which states:
" ' "Out-of-pocket loss” means the unreimbursed and unreimbursable expenses or indebtedness reasonably incurred for medical care, any nonmedical remedial treatment rendered in accordance with a recognized religious method of healing, or other services necessary as a result of the injury upon which a claim is based.’
"8. After review of the evidence, the board determined that ' "other services” ’ refers back to ' "for medical care” ’ and relates to and is limited to medical type services such as physical therapy, prosthetic devices and convalescent aids and supplies and other equipment needed for the victim as a direct result of the physical injury. Babysitting and housekeeping expenses are a loss to the survivors and are not defined or compensable under this section.
"9. Although the claimant did not specifically request consideration under § 11(2), ' "loss of support” ’, the board considered that section as it might relate to the issue of babysitting and housekeeping services.”
The board also placed certain limits on the amount of attorney fees but later withdrew these limitations. Plaintiffs application for leave to appeal was granted by this Court on December 8, 1981. In the order granting leave to appeal, the parties were directed to brief, in addition to the questions raised under §§ 1 and 11, supra, two additional questions: (1) Was the board’s attempt to limit attorney fees an issue of public importance and so likely to recur that this Court should consider the issue on appeal, even though technically the issue was moot in this case; and (2) Did the board err in limiting burial expenses to $1,-500? Before considering the issues of first impression, these being the main issues in this matter, we speak to the additional questions which the parties were directed to brief.
Plaintiff obtained counsel pursuant to a contingent-fee contract. When plaintiffs application for benefits was presented, the board imposed a restriction pursuant to board "policy” that attorney fees should not exceed 10% of the benefits awarded. Realizing that the "policy” could not be implemented without promulgation of a rule properly enacted in accord with the Administrative Procedures Act, the board withdrew its objection. Thinking that the withdrawal of objection applied only to the instant case, and did not include future cases filed with the board, this Court directed that the issue be briefed. However, the Attorney General now advises that the board has abandoned any attempt to apply the limitation to other claims pending or being submitted, unless and until a rule is fully promulgated. At oral argument, the Attorney General further advised that a rule has been promulgated and is presently pending before the Joint Rules Committee of the Legislature. Since appropriate rules have been promulgated, there is no indication that the problem is likely to recur. Therefore, the matter need not be addressed. Colombini v Dep’t of Social Services, 93 Mich App 157; 286 NW2d 77 (1979).
The board has also adopted a "policy” limiting awards for funeral and burial expenses to $1,500. Like its "rule” governing attorney fees, the policy had been implemented without conforming to the procedures required for the promulgation of the rule by the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq. Without full compliance with these procedures, there is no rule and no authority to act. Williams v Warden, 88 Mich App 782, 785; 279 NW2d 313 (1979). Nevertheless, the amount of the funeral expenses was not raised in plaintiff’s application for leave to appeal, probably because by letter dated August 19, 1980, plaintiff accepted the $1,500 award plus $78 ambulance fees. At the hearing before the full board in June 1981, plaintiff did not contest the award of funeral expenses as made by the chairman of the board.
Since the chairman’s decision as to funeral expenses was not appealed to the full board, and since at oral argument on appeal, plaintiff admits this issue is not raised, we find that the award of funeral expenses is not reviewable by this Court. MCL 18.357(3); MSA 3.372(7)(3). Plaintiff did more than fail to object, he agreed to the validity of the funeral expenses award. Ball v Ex-Cell-O Corp, 52 Mich App 550; 218 NW2d 85 (1974), lv den 392 Mich 792 (1974).
Under the statute, a claimant may file for reimbursement of out-of-pocket losses. Under § 1(e), supra, an out-of-pocket loss is defined as:
" 'Out-of-pocket loss’ means the unreimbursed and unreimbursable expenses or indebtedness reasonably incurred for medical care, any nonmedical remedial treatment rendered in accordance with a recognized religious method of healing, or other services necessary as a result of the injury upon which a claim is based.” MCL 18.351(e); MSA 3.372(1)(e). (Emphasis added.)
Plaintiff argues that babysitting and child care is reimbursable under the "other services necessary” language emphasized above. The board contends that under the rule of ejusdem generis, the words "other services” relate back to medical or medically related expenditures. Under ejusdem generis, when general words follow a designation of particular subjects, the general words will ordinarily be related back and restricted to the same kind, class, or nature of the things specifically enumerated. 73 Am Jur 2d, Statutes, §214, pp 407-408. When so applied in the instant case, the words "other services” follow "medical care” and "nonmedical remedial treatment” and must be restricted to medical care, treatment or therapy necessary to the victim in order to recover from injury.
Admittedly, the words "other services necessary” are ambiguous. Where statutory language is ambiguous, interpretation of the meaning thereof may be had by long-standing rules of interpretation, including. ejusdem generis. People v Smith, 393 Mich 432, 436; 225 NW2d 165 (1975). Likewise, where a statute is ambiguous, administrative interpretation thereof should be given great weight. Szabo v Ins Comm’r, 99 Mich App 596, 598; 299 NW2d 364 (1980). Construction of a statute by those charged with the duty of executing it should not be overruled in the absence of cogent reasons therefor. Oakland Bd of Ed v Superintendent of Public Instruction, 401 Mich 37, 41; 257 NW2d 73 (1977). From the time the crime victims compensation statute first became effective March 31, 1977, until the present date, the board has consistently construed "other services necessary” to be restricted to medical care, treatment or therapy for the victim and necessary for the victim’s recovery from the injury suffered.
Furthermore, defendant’s interpretation of the out-of-pocket expenses is a reasonable interpretation. The provision was intended by the Legislature to be limited to those expenses most directly connected with the victim’s physical and mental injuries. "Other services” does not, therefore, ordi narily include payments to a babysitter and housekeeper necessitated by the victim’s death. Defendant’s denial of plaintiffs claim on this ground was not arbitrary, capricious or an abuse of discretion. MCL 24.306(e); MSA 3.560(206)(e); Pharris v Secretary of State, 117 Mich App 202; 323 NW2d 652 (1982).
Plaintiff also contends that babysitting and child care payments made by him to his mother are awardable under § 11(2) of the statute. That section reads:
"An award made for loss of earnings or support, unless reduced pursuant to this act, shall be in an amount equal to the actual loss sustained. An award shall not exceed $100.00 for each week of lost earnings or support. ” (Emphasis added.)
The board argues that this section refers only to monetary payments which have ceased as a result of the victim’s injury or death. We agree with the board. Plaintiffs wife was not employed outside the home at the time of her death, and it does not appear that plaintiff was paying her any regular amount for her services.
Reading the statute as a whole, and giving consideration to the conditions and circumstances under which it was enacted, it appears that the Legislature was primarily concerned with compensating losses which were directly attributable to the crime and could be easily calculated in monetary terms. The commonly understood meaning of the terms "earnings” and "support” is, as defendant suggests, sums of money received on a regular basis for services performed. The defendant’s denial of compensation based on this interpretation of the act was not arbitrary, capricious or an abuse of discretion. MCL 24.306(e); MSA 3.560(206)(e); Pharris, supra.
Since its inception the statute has been relatively modestly funded. While this Court appreciates the hardship imposed when plaintiff by necessity was compelled to find someone to take care of his preschool-age children, we are also aware that the more money that is paid to any one claimant, the fewer are the claimants who may be compensated. It was in this climate that the statute was passed and funded. If a greater scope of award is to be made, it should be done by the Legislature and not by judicial interpretation.
Affirmed. No costs, a question of public importance being involved.
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Butzel, J.
Decedent was a man 69 years of age and had been employed by defendant for 18 or 19 years prior to his death. He had had no recent illness other than indigestion and seemed as well as usual when he left home and went to work with a fellow employee on the night of March 10, 1937. After he was left at a gate by the fellow employee and entered the plant, he was not seen by any of those who testified at the hearing until after he was removed from the factory dead.
Defendant filed a report with the department of labor and industry, using the form for compensable accidents, but attached thereto a letter denying that an accident had occurred. Under the description of how the accident occurred, defendant stated the employee “collapsed where he was standing in front of a body conveyor, where bodies are dried by infra red light.” The report also gave the name of decedent’s foreman and of the attending physician.
Decedent’s body was taken to the county morgue where an autopsy showed that the immediate cause of death was a cerebral hemorrhage following a fractured skull. It was also revealed that decedent had three serious heart ailments. The medical examiner’s autopsy report described decedent’s condition as follows:
“One and one-half inch laceration scalp superficial, left occipital parietal region; aortitis; aortic stenosis; coronary sclerosis; old adhesions at apex of both lungs; acute passive congestion of both kidneys; moderate enlargement of the prostate gland; four and a half inch fracture stellate shaped in the left temporal bone.”
While there was testimony that decedent’s heart ailments could at any time have caused a heart attack, with a consequent fall, it was also shown that decedent might have continued to live for some time without ill effects. There was no evidence that deceased had overexerted himself, or had eaten a heavy meal, or that any particular thing had happened to him which might bring on a heart attack.
The department, on appeal by defendant from the award made by the deputy commissioner, found that an accident had occurred and awarded plaintiff $18 a week plus $200 for funeral expenses. Defendant appeals.
Defendant introduced no witnesses competent to testify and the facts hereinbefore detailed constitute the sum of the evidence before the department. Defendant, although its report indicates that it had full information in regard to the incident, gave none whatsoever, nor any reason for its failure to do so. It is. true that the burden of proving an accident rests on the one seeking the award and that an award favorable to the appellant must be based on established facts. However, in Wishcaless v. Hammond, Standish & Co., 201 Mich. 192, the court quoted from Grant v. Railway Co., 1 B. W. C. C. 17, to the effect that:
“If in such a case facts are proved the natural and reasonable inference from which is that the accident happened while the deceased was engaged in his employment, I think it falls upon the employer, if he disputes the claim to prove that the contrary was the case.”
We have frequently held that a finding that an accident occurred may be a reasonable and natural inference from a showing that the employee received a physical injury while at work. In the following cases the employee was found dead from traumatic injuries on the employers’ premises and the award was sustained notwithstanding the fact that no one saw the accident: Wishcaless v. Hammond, Standish & Co., supra; Meyers v. Railroad Co., 199 Mich. 134; Simpson v. Michigan Valve & Foundry Co., 260 Mich. 543. In Woodburn v. Oliver Machinery Co., 257 Mich. 109, the record, though not the opinion, discloses that the employee was 72 years of age, suffering from arteriosclerosis and an aneurism of the circle of Willis, one of the principal avenues of circulation of the blood in the brain. Testimony showed that this could have caused faintness and dizziness, which, in turn, could have caused the fall which resulted in death. The court said:
“No one saw Woodburn fall. All we have is that he was free from injury when he left the house and injured when he came back from his place of employment. The fact that he left home uninjured, went to defendant’s factory, was engaged in his usual and ordinary occupation therein, was found at the factory, at the foot of the stairs, in the line of travel where the discharge of his duties usually and ordinarily took him, severely injured about the head, from which injuries it is probable he died, is, we think, sufficient to raise a presumption the injuries to deceased arose out of and in the course of his employment.”
We are not unmindful of the several cases in which it was held that there was no basis in fact for the inference of an accident. However, they all can be distinguished from the instant case. In Allen v. Robert Gage Coal Co., 218 Mich. 347, Marman v. Detroit Edison Co., 268 Mich. 166, and Guthrie v. Detroit Shipbuilding Co., 200 Mich. 355, the immediate cause of death was either unknown or was not a physical injury which could be attributed to the employment. In Sadjak v. Parker-Wolverine Co., 281 Mich. 84, the employee was not shown to have been injured while at work, but was found two blocks away from the place of employment, in front of a beer garden and with the odor of alcohol on his breath. In Pucilowski v. Packard Motor Car Co., 278 Mich. 240, the employer offered evidence to show the circumstances under which the employee was injured and thus can be held to have rebutted the presumption of a compensable accident which would arise from the fact that the employee was injured while at work. In this case defendant made no effort to show the circumstances under which decedent was injured and we believe that the department was warranted, upon the established facts, in drawing the inference that decedent met with a compensable accident.
The award is affirmed, with costs to plaintiff.
Bushnell, Chandler, and McAllister, JJ., concurred with Butzel, J.
Wiest, C. J. The award should be vacated.
The department justified the inference of accidental injury on the failure of defendant to produce witnesses showing how the accident occurred.
This man was suffering from three ailments, any one of which might prove fatal and throw him to the floor. The fact that he entered the factory apparently well does not permit drawing the inference that there was an accident because, even if he appeared well, any one of his serious diseases might have caused his death at any time.
I am not prepared to hold that the burden is on the defendant to disprove the alleged accidental injury but adhere to the rule that the burden is on the plaintiff to show an accidental injury.
I am of the opinion that an affirmative finding of an accidental injury cannot be based upon an inference as was done in this case, as evidenced by the following, quoted from the opinion of the department:
“A most reasonable inference is drawn by this department, that if such witnesses (other employees of defendant) had been favorable to defendant’s case, they would have been produced. ’ ’
Sharpe, Potter, and North, JJ., concurred with Wiest, C. J. | [
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Butzel, J.
On April 2, 1936, Leon Seivers met with a fatal accident which admittedly arose in the course of and out of his employment with defendant. He left surviving him his mother, Jennie Seivers Rowe, and a sister 11 years of age, plaintiffs herein, and also a brother, Eugene Seivers, and a stepfather, Steven Rowe. The latter had married decedent’s mother in August, 1932, and thereafter became a member of the household, consisting of decedent, the mother, and the other two children. Mr. Rowe worked for defendant for several years, up to the time of decedent’s death. Since then he has worked intermittently for others as a carpenter. His weekly wages from defendant averaged $30, from which he contributed only $9 towards the family’s support. He testified that out of the balance, he contributed towards the support of a; widowed mother living in Newfoundland and paid up bills contracted before his marriage to decedent’s mother. He and Mrs. Rowe had a joint savings account of $70 at the time of Leon’s death, and he also had an investment ac count with defendant amounting to $270, but these accounts were offset by amounts owed. The family had no surplus over and above debts due and payable.
Plaintiffs applied for compensation for the death of Leon Seivers. The department found that the weekly expenses of the family were $4 for rent, $15 for groceries, $5 for clothes, and $15.37 for insurance, electricity, telephone, coal, milk, and incidentals, making a total of $39.37, which amount was required to purchase the necessities of a family living in a meagre way. To meet these expenses, decedent paid $10 a week board and also contributed an additional $12 to his mother for the support of herself and the sister. Eugene paid $10 board and had Mr. Rowe turned in his entire $30, instead of only $9, there would have been $62 a week that could have been used for the support of the family.
The department found the mother and sister to be partially dependent and awarded to them $10.54 per week for 300 weeks from the date of the accident. Defendant contends that the department was in error in holding that deceased’s mother and sister were dependent upon his contributions of $12 a week. It is claimed that the father had a duty to support the family, that his income was adequate to meet the family expenses, and that, therefore, the plaintiffs were dependent upon him, and not upon the deceased son.
There is no question but that the father had a duty to support his wife. Howe v. North, 69 Mich. 272; Root v. Root, 164 Mich. 638 (32 L. R. A. [N. S.] 837, Ann. Cas. 1912B, 740). There is a question, which need not be determined in this case, whether there was a legal dutjr on his part to support a minor stepdaughter. However, the fact that the father had a duty to support his family does not preclude a finding that they were in fact dependent upon the son.
Dependency is a question of fact to be determined as of the date of the accident, irrespective of any change in conditions subsequent thereto. At the date of the accident, the mother and sister of the deceased had no income of their own and were dependent upon others for their support. At that date, as a matter of fact, they relied upon the contributions of the son and depended upon him and did not rely on the father. The possibility that, at some future date, the father might contribute to their support, cannot preclude a finding that the plaintiffs were in fact dependent upon the deceased at the date of the accident. The question is really not whether the mother and sister could have obtained support through the father or in some other manner, but whether they did actually depend upon the son. Miller v. Riverside Storage & Cartage Co., 189 Mich. 360; Kostamo v. H. G. Christman Co., 214 Mich. 652. Notwithstanding the income of the father, plaintiffs were dependent on the contributions of the deceased at the time of the accident. Grant v. Kotwall, 133 Md. 573 (105 Atl. 758); Driscoll v. Jewell Belting Co., 96 Conn. 295 (114 Atl. 109); Henry Pratt Co. v. Industrial Commission, 293 Ill. 367 (127 N. E. 754) ; London Guarantee & Accident Co. v. Hoage, 64 App. D. C. 105 (75 Fed. [2d] 236); Frear v. Ells, 200 App. Div. 239 (193 N. Y. Supp. 324). There are some cases that uphold defendant’s contention that if the father was earning sufficient to support himself and his wife, the latter was not dependent upon the contributions of the son. Fosket v. A. J. Buschmann Co., 193 App. Div. 342 (183 N. Y. Supp. 919); Frey v. McLoughlin Bros., Inc., 187 App. Div. 824 (175 N. Y. Supp. 973); Kelley v. Hoefler Ice Cream Co., 196 App. Div. 800 (188 N. Y. Supp. 584). The weight of authority, however, is to the contrary.
In Estrin v. Workmen’s Circle Colony, 249 Mich. 186, the father of the deceased employee was a carpenter earning a substantial wage, but contributed only $7 a week towards the family expenses of $48 a week. The son contributed $25 a week. The briefs and record in that case show that the question of the effect upon the dependency of the mother, of the father’s duty and ability to support, was raised. The court held that the mother was dependent upon the son to the extent of $8 a week even though the father earned wages largely in excess of the $7 a week he contributed. Notwithstanding the headnote in Moll v. City Bakery, 199 Mich. 670, that case only holds that if a son contributed no more than the cost of his board and room, he made no contribution to the support of the others in the family, and therefore, there was no dependency upon him. Neubauer v. Levy, 252 Mich. 83, merely held that if the contributions of the son were not used for support, no dependency was established. In the instant case, there is no question but that the contributions of decedent were in excess of the cost of his support and that they were actually used to support the plaintiffs. The department was not in error in holding that plaintiffs were dependent upon the contributions of the deceased employee.
It might be claimed that if the award is correct and the income of the father is not to be considered, dependency might be claimed even if the father earned a very large sum. Such is not the instant ease. The department must decide cases on the facts before it. The listed expenditures of the family showed that rigid economy was exercised and only bare necessities were provided for. It was only a short time before decedent’s death that the mother was able to stop working herself. If the father had contributed a larger part of his earnings, the family could no doubt have lived more comfortably. But even if such were the case, it cannot be said as a matter of law, that the total family income would be more than adequate to support a family of five, and that the contributions by the son might not be reasonably necessary. Each case must be decided on its facts and not upon a supposititious set of circumstances.
Defendant also claims that even if the death of the employee did leave a deficit in the family budget, the department could not find that such a deficit applied entirely and solely to the mother and sister, and not to the rest of the family. In other words, the contention is that the contributions of decedent went to the support of the entire family, including the father and brother, and that, therefore, the plaintiffs were not entitled to the entire amount of the compensation awarded. However, it was held in Bergerhoudt v. Riter-Conley Co., 242 Mich. 438, that if the producing members of the family contributed more than the cost of their support, then all of the contributions of the decedent went to the support of the non-producing members, and that they were dependent upon him to that amount. It is apparent, from the findings of the department, that in this case, the father and brother each contributed an amount equal to, or in excess of, the cost of his support, and that the contributions of the decedent went entirely to the support of the plaintiffs.
A showing of partial dependency, to the extent found by the department, was made. The award of $10.54 a week was mathematically correct and was based upon the earnings and contributions of the deceased.
The award is affirmed, with costs to appellees.
Bushnell, Chandler, and McAllister, JJ., concurred with Butzel, J.
Potter, J. Leon Seivers, unmarried, 18 years of age, died April 2, 1936, as the result of an accident which arose out of and in the course of his employment by defendant. His mother, Jennie Seivers Bowe, and sister, Bernice Seivers, 11 years old, claimed to have been dependent on deceased and entitled to a compensation under 2 Comp. Laws 1929, §§ 8421, 8422 (Stat. Ann. §§ 17.155, 17.156).
Jennie Seivers Bowe, the mother of deceased, Bernice and a son, Eugene, married Steven Bowe in 1932, about six years after the death of James Seivers, the father of her three children. The parties were living together as one household at the time of the death of deceased. The testimony indicated Mr. Bowe contributed $9 a week to the support of the household, Eugene $10 a week for board, and Leon $10 a week for board and an additional $12 a week, $10 of which was to support the mother and sister, the remaining $2 being for clothes for the mother.
The department of labor and industry found the-above items constituted the total receipts of the family, being in all $41 a week, and that the weekly expenses for the family of five was $39.37.
The record discloses that $7 of the extra $10 given to the mother and sister of deceased by him for their mutual support was necessary for and did partially take care of the sister. The award of the department of labor and industry provided compensation at the rate of $10.54 a week for a period of 300 weeks, from April 2, 1936, or until the further order of the department, should be paid to Jennie Seivers Bowe “for the benefit of herself and her minor child, Bernice Seivers, share and share alike.”
At the time of the accident, deceased was earning $6 a day. His total earnings for one year prior to his death were $666.05. The department found deceased contributed $390 beyond the money for his board and lodging to the family budget during the year preceding his death. Relying upon Kostamo v. H. G. Christman Co., 214 Mich. 652, the department determined that the above award be entered, it being its conclusion the mother and daughter were partially dependent upon deceased.
Defendant appeals, claiming the department erred in holding plaintiffs were dependent and the deficit in the family budget applied solely to the mother and sister of deceased. Defendant contends the proof showed Mr. Rowe earned $30 a week and that amount should have been considered in establishing the family budget rather than the $9 which the department used, and that on the basis of the husband’s earnings there would be no dependency shown of plaintiffs on Leon for there would be $30 from Mr. Rowe, $10 from Eugene, $10 from Leon, $50 in all, as income over and above the $12 which Leon gave his mother and which it asserts should be considered as a gift not necessary in the support and maintenance of the family.
The issue herein depends upon whether the family income exceeded its expenses.
Plaintiffs rely upon Miller v. Riverside Storage & Cartage Co., 189 Mich. 360, where it is said:
“The test of dependency is not whether the family could support life without the contributions of the deceased, but whether they depended upon them as part of that income or means of living.”
That is, the test of dependency is whether the parties are dependent. Plaintiffs contend this case is authority for the position the $9 a week paid by Rowe, and not the $30 which he earned, was the amount to be taken into consideration as showing that actually they were dependent upon the extra $12 which Leon contributed.
In Moll v. City Bakery, 199 Mich. 670, it was held the parents of a deceased employee were not dependent upon him so as to be entitled to compensation for his death where, if the amount the son’s board cost the father was deducted from the family expenses, the father’s income was more than sufficient to meet expenses. And in Neubauer v. Levy, 252 Mich. 83, it was said:
‘ ‘ Some courts have said that parents may be partly dependent for support on a child,' although, out of the family exchequer, they pay reasonable amounts compared with their income for life insurance, on the purchase price of a home, for its repair, or other upkeep; and have suggested that modest savings may be made against a time of adversity and as a matter of family protection without departing from the realm of support. * * * But it was not the legislative intent that parents should be permitted to swell their investment account at the expense of an employer of their son. Where parents are able to save all the money contributed by the child after payment of his cost, they are not dependent on him for support.”
Estrin v. Workmen’s Circle Colony, 249 Mich. 186, is to be distinguished from the Moll and Neubauer Cases and does not lay down a doctrine contrary thereto. It was there found the father contributed about $7 a week to the family support, while his minor son contributed $25 a week. It was not shown what the father’s earnings were but rather it was testified that he was in poor health and did not work steadily.
Where the contribution, or claimed contribution, of a deceased who does not have the primary obligation, moral or legal, to support another is out of all proportion to that of the one who does have such moral and legal obligation and prefers to lie back or so claims, pocketing or otherwise spending his money and shirking his legal and moral obligation of supporting his family, it cannot be said the legislature meant to lend its aid to his dependents by penalizing the employer of deceased.
In this case, the husband contributed $9 a week out of his $30 weekly wages for the support of the family, keeping out $21, while an 18-year-old stepson is supposed to have contributed $22 towards the family expenses. The decedent’s mother was not dependent upon him because her husband’s income was more than enough to take care of their pro rata share of the family expenses of $39.37 a week. Her uncontradicted testimony is that it took all of the contributions for board of Eugene and Leon to keep them. The fact the husband paid off about $300 in bills over a four-year period from 1932 to 1936 does not relieve him of his duty to support his wife. It is claimed he sent $15 a month to his mother in Newfoundland. He worked for defendant from January 11, 1934, to April 2, 1936, five and sometimes six days a week, with the exception of 18 weeks ’ lay-off over the whole period of employment. He had $70 in the bank and $270 in an investment account with defendant on April 2,. 1936. Under such circumstances, dependency upon the deceased was not established. The husband may not fail to support his wife, pay indebtedness, contribute to the support of his mother, establish an investment account, and build up a savings bank deposit, at defendant’s expense.
With respect to Bernice, there was no legal obligation on the part of Mr. Rowe to support her. She was not his daughter. There is nothing in the record indicating lie adopted her. The rule which precludes the mother from being a dependent upon her son does not affect Bernice. The department of labor and industry found she was partially dependent on Leon for support, concluding she was supported to a greater or less degree by someone else. The mother testified it took $7 of the extra $12 contributed by Leon “at least” to clothe, feed, school and care for Bernice. There is no finding by the department this amount was actually used for the support of the sister of deceased for the year prior to the death of deceased, nor is it possible for, although $7 of the $12 was used, Leon only contributed $12 for 20 weeks. He sent the $25 a month home for the six months’ period of April to October, 1935, when he resided away from home.
The only issue involved is whether the girl, Bernice, was dependent upon Leon as of the date of the accident. The department determined she was, but, since there was no separate finding as to the amount of deceased’s contribution to each of the alleged dependents, we think the case should be reversed and remanded to the department for the reason that it disposed of the case upon an untenable legal basis and that it should be disposed of in accordance with this opinion. Nevels v. Walbridge Aldinger Co., 278 Mich. 214. The award to Jennie Seivers Rowe should be set aside, the award vacated, and the cause remanded for a separate determination of the amount of deceased’s contribution to Bernice who was found to be a dependent.
Wiest, C. J., and Sharpe and North, JJ., concurred with Potter, J. | [
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McAllister, J.
Plaintiff brought this action to recover for damages for negligence arising from injuries alleged to have been sustained while she was a passenger in a street car operated by defendant. The case was tried by the court without a jury, resulting in a judgment of no cause of action.
Plaintiff claims that through the negligent and careless operation of the street car by defendant’s motorman, she was thrown to the floor of the car and down the exit steps thereof. She testified that after getting on the car, she approached the fare box with a purse and parcel in one hand and her money in the other. She stated that just before the accident: “I kind of protected myself and as I got my change he jerked the car.” She did not definitely testify that she had hold of the railing near the fare box. The plaintiff testified that as she was standing in the aisle, the street car “jerked terribly.” Two other witnesses for plaintiff, who were passengers, testified that there were two “sudden” and “terrific” jerks.
Defendant’s conductor testified that he saw plaintiff in front of the box looking for money with which to pay her fare; that she had a bundle under her arm and a big pocketbook, but was not holding on to the rod. When she was about ready to pay her fare, the conductor testified, the street car started and plaintiff fell sidewise; he reached out and grabbed her, and a passenger from the other side also caught her.. The conductor further testified that the car started in the ordinary way with no jerk. Defendant’s motorman also testified that there was no jerk and that he started the car in the usual way.
In Selman v. City of Detroit, 283 Mich. 413, 419, it was said:
“There are cases relating to the operation of steam railroads which indicate that a negligent and sudden jerk of the train when the passenger is in the act of alighting may be ground for recovery. Wood v. Railway Co., 49 Mich. 370 (4 Am. Neg. Cas. 35); Smalley v. Railway Co., 131 Mich. 560. This court has held that sudden increases and decreases in the speed of street cars, whether a passenger is seated or standing, are subject to a different rule. Schultz v. Railways Co., 158 Mich. 665 (27 L. R. A. [N. S.] 503); Ottinger v. Railway, 166 Mich. 106 (34 L. R. A. [N. S.] 225, Ann. Cas. 1912D, 578, 3 N. C. C. A. 323); Bogart v. City of Detroit, 252 Mich. 534. Sudden jerks and jolts in the movement of railroad trains or street ears are generally accepted as among the nsnal incidents of travel which every passenger by experience has learned to expect to some extent. 10 Am. Jnr. p. 213, § 1343. Sudden jerks or jolts in stopping to let off and take on passengers, and in starting, are among the usual incidents of travel on street cars which every passenger must expect, and the mere fact that a passenger is injured thereby will not of itself make out a case of negligence which will render the carrier liable. 4 R. C. L. p. 1210 et seq., § 634. Though the carrier may be held liable if the jerk or jolt is unnecessarily sudden or violent. 4 R. C. L. p. 1210 et seq., § 634. And unusually sharp jerks or violent jolting, due to the negligent operation of the car or the negligent failure to maintain the track properly, has been viewed as imposing liability on the carrier for resulting injuries to the passenger. 10 Am. Jur. p. 214, §1343; 10 C. J. pp. 973, 974; 2 Moore on Carriers (2d Ed.), p. 1222; 1 Nellis on Street Railways (2d Ed.), p. 593. The rule is, that a street railway cannot be held liable for resulting injuries to passengers due to sudden jerks in starting, stopping or operating such conveyances if they are maintained in a serviceable condition and operated in the customary manner. ’ ’
The trial court ivas confronted with conflicting testimony. The plaintiff and her two witnesses testified that her fall was caused by unusual and terrific jerks of the street car; on the other hand, defendant’s witnesses, the motorman and the conductor, testified that there were no such jerks, and that the car was started in the usual manner.
The holding of a trial judge in a personal injury case tried by the court without a jury, on issues of negligence and contributory negligence, is affirmed where the record on appeal is such that, had the case been tried before a jury, its verdict on such questions would necessarily be sustained. Jacoby v. Schaf snitz, 270 Mich. 515. In a law case tried without a jury, the trial court is the judge of the weight of the evidence and the credibility of the witnesses; on review we do not try the issues between the parties, nor do we weigh the evidence or hear the cause de novo; concerning questions of fact, unless the finding is against the clear preponderance of the evidence, it is not disturbed on appeal. From our review of the entire record, it cannot be said that the judgment of the trial court was against the clear preponderance of the evidence.
Plaintiff further assigns error on the ground that the trial court erred in not granting a new trial on the ground of newly-discovered evidence. Affidavits in support of plaintiff’s motion for a new trial show that such evidence would consist of testimony by one of the passengers of the street car, with regard to the jerking of the car, and statements in the nature of admissions by the conductor some time after the accident. Such alleged admissions were not a part of the res gestee and would not be admissible against defendant. Moreover, the proposed witness, whose testimony was sought as newly-discovered evidence, was known by the plaintiff to be a passenger at the time of the accident and plaintiff had such knowledge at the time of the trial. Plaintiff’s reason for not calling this party as ,a witness was because she thought the witness was angry with her.
A requirement for a new trial on the ground of newly-discovered evidence is that the party could not, with reasonable diligence, have discovered and produced the evidence at the trial. People v. DeMars, 238 Mich. 259.
In Webert v. Maser, 247 Mich. 245, we quoted with approval from Canfield v. City of Jackson, 112 Mich. 120, as follows:
“'“A motion for new trial, upon the ground of newly-discovered evidence, is not regarded with favor. The policy of the law is to require of parties care, diligence, and vigilance in securing and presenting evidence.” Elliott, Appellate Procedure, § 857. To entitle one to a new trial upon this ground it should he shown: First, that the evidence, and not merely its materiality, he newly discovered; second, that the evidence be not cumulative merely; third, that it be such as to render a different result probable on a retrial of the cause; fourth, that the party could not with reasonable diligence have discovered and produced it at the trial. Hayne, New Trial & Appeal (1st Ed.), p. 251 et seq., §§ 88-92, and many cases there cited; Gray v. Barton, 62 Mich. 186. Defendant failed to make such a showing as to entitle it to a new trial. ’ ”
The trial court was not in error in refusing to grant a new trial on the ground of newly-discovered evidence.
Judgment affirmed, with costs to defendant.
Chandler, J., concurred with McAllister, J. Btjtzel, C. J., and Wiest, Btjshnell, Sharpe, Potter, and North, JJ., concurred in the result. | [
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North, J.
From January 1, 1933, to and including December 31,1933, plaintiff, John Kaminski, was a duly elected, qualified and acting circuit court commissioner for Wayne county. For compensation as such public officer by statutory provision (Act No. 724, Local Acts 1907) he was paid by the State $3,000 per annum, and by ordinance passed by the board of supervisors of Wayne county, Ms annual compensation payable by the county was fixed at $5,500, making a total of $8,500. Notwithstanding the above provisions as to compensation for his official services, plaintiff received and accepted $7,200 as his salary for 1933. This diminution in salary paid to plaintiff was due to the then current general depression, in consequence of which it may fairly be inferred from the record there was a general attempt made by the Wayne county board of auditors to reduce salaries payable to public officers and employees. Plaintiff’s term of office expired December 31, 1936. On November 23, 1936, he filed claim with the board of Wayne county auditors for unpaid salary in the amount of $1,300, together with interest thereon from January 1, 1933. The board of auditors failed to pass upon this claim. On September 23, 1937, plaintiff instituted mandamus proceedings in the Wayne county circuit court which resulted in an adjudication that the board of auditors had authority to pass upon plaintiff’s claim and the writ of mandamus issued commanding such action. No appeal was taken. On November 3, 1937, the board of auditors did pass upon plaintiff’s claim and denied the same. Whereupon plaintiff appealed to the circuit court of Wayne county. The board of auditors and the county of Wayne appeared and answered. For the reasons hereinafter considered, defendants denied plaintiff’s right to recover. The circuit- judge, who heard the case, rendered a judgment in the sum of $1,300 for plaintiff. Defendants have appealed. Plaintiff has perfected a cross-appeal, asserting that the trial judge was in error in not allowing interest on the amount recovered!
The first contention made by appellants is that the Wayne county board of auditors did not have author ity to pass upon plaintiff’s claim. This contention cannot be sustained.
“The boards of supervisors shall have exclusive power to fix the salaries and compensation of all county officials not otherwise provided for by law. The boards of supervisors, or in counties having county auditors, such auditors, shall adjust all claims against their respective counties.” Const. 1908, art. 8, § 9.
The caption or heading by which the above quoted section is prefaced reads: ‘ ‘ Salaries; claims against counties; appeals from decisions of board. ’ ’ Clearly the framers of the Constitution intended that the matter of adjusting “all claims” should include claims for salaries when contested. This is the construction which the legislature seems to have placed upon the constitutional provision.
“It shall be the duty of the board of supervisors of each county, or the board of county auditors in counties having a board of county auditors, to adjust, allow and authorize the payment of all claims against the particular county, and any claims not adjusted and ordered paid by the said board of supervisors or board of county auditors, as the case may be, except as provided in this act, shall not be paid.” 1 Comp. Laws 1929, §1186 (Stat. Ann. § 5.521).
It would seem too clear for argument that under the above quoted statute plaintiff could not assert his contested claim against the county until it had first been passed upon by the Wayne county board of auditors. The statute provides for appeal to the circuit court from either the allowance or the dis-allowance of claims by the board of supervisors or the board of auditors. 1 Comp. Laws 1929, §§ 1186, 1187 (Stat. Ann. §§ 5.521, 5.522). Atlas v. Wayne County Board of Auditors, 281 Mich. 596, upon which appellants rely, is not an authority for their contention. Instead the holding of the cited case is only to the effect that plaintiff therein did not have a valid claim for unpaid salary and therefore his petition for mandamus to compel the allowance of his alleged claim was properly denied.
The remaining contentions of appellants may be stated as follows: That plaintiff is estopped from asserting his present claim by reason of his having-accepted without protest the amount paid to him, and also by reason of his laches in failing to file his claim until nearly three years after it accrued. The record discloses that plaintiff received and accepted the sum of $7,200 for his official services from January 1, 1933, to December 31, 1933; that he did not protest to the board of county auditors or to the county treasurer about the reduction of his salary, and that he desisted from protesting knowing that if he did he would be exposed to public criticism for refusing to accept a cut in salary during a period of extreme financial depression.
A fundamental requisite of estoppel is that conduct, whether action or inaction, on the part of the one against whom the estoppel is asserted has worked to the disadvantage of the party who urges this defense. Cudahy Brothers Co. v. West Michigan Dock & Market Corp., 285 Mich. 18. Nothing appears in this record tending to show that plaintiff’s delay in asserting his right to unpaid salary has worked to the disadvantage of defendants.
“The acceptance of less compensation than that established by law for the office does not estop an officer from subsequently claiming the legal compensation.” 46 O. J. p. 1027 (where numerous cases are cited).
“We have many times held that part payment of a past due, liquidated and undisputed claim, even though accepted in full satisfaction thereof, .does not operate to discharge the debt but constitutes a payment pro tanto only.” Aston v. Elkow, 279 Mich. 232.
“ The salary of a municipal officer, when once fixed in the manner prescribed by law, can be changed only by a like compliance with the statutory conditions; and by accepting a smaller amount than that to which he is entitled the officer does not waive his right to recover the full salary.” Ruell v. City of Alpena (syllabus), 108 Mich. 290.
To the same effect, see People, ex rel. Miller, v. Board of Auditors of Wayne County, 41 Mich. 4. Many authorities are cited in a note in 70 A. L. R. 972 sustaining the following statement there made:
“The rule seems to be.well settled in most jurisdictions that a contract whereby a public officer agrees to perform services required of him by law for a less compensation than that fixed by law is contrary to public policy and void.”
This is a proceeding at law, and notwithstanding appellants’ contention to the contrary, we are of the opinion that plaintiff’s right to recover is not impaired by laches. Plaintiff’s delay of approximately 3 years in pressing his claim is decidedly short of the period of the statute of limitations by which it would be barred. Mere delay in asserting a claim for a period less than the statute of limitations does not, in the absence of exceptional circumstances, constitute such laches as will defeat plaintiff’s recovery either in law or in equity. Epstean v. Mintz, 226 Mich. 660.
As hereinbefore noted, plaintiff has perfected a cross-appeal asserting that the trial court was in error in not allowing plaintiff interest upon the amount recovered. On November. 23, 1936, plaintiff filed a claim for the money which he has now recovered. In the meantime defendants have unlawfully deprived him of the use of the $1,300 recovered. Under the circumstances he is entitled to interest at the rate of five per cent, per annum from November 23, 1936, to the date of entering judgment.
The case will be remanded to the circuit court for modification of the judgment in the particular just above indicated, but otherwise it is affirmed. Plaintiff will have costs of this court.
Wiest, C. J., and Butzel, Bushnell, Sharpe, Potter, Chandler, and McAllister, JJ., concurred.
See 3 Comp. Laws 1929, §13976 (Stat. Ann. § 27.605) — RePORTER. | [
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Carr, C. J.
On September 11, 1946, and prior thereto, an investigation was being conducted in the county of Oakland by tbe Hon. George B. Hart-rick, one of tbe circuit judges of said county, pursuant to tbe provisions of 3 Comp. Laws 1929, §17217 et seq. (Stat. Ann. §28.943 et seq.). Tbe subject matter of sucb investigation involved alleged violations of tbe statutes of the State pertaining to gambling, operation of gambling devices, bribery of public officials, and other offenses. On tbe date referred to William Oliver was summoned before Judge Hartrick and questioned concerning certain matters pertaining to tbe inquiry. During sucb examination tbe other circuit judges of Oakland county, tbe Hon. Frank L. Doty and Hon. H. Russel Holland, sat with Judgei Hartrick in an advisory capacity. At tbe conclusion of Oliver’s testimony tbe judges unanimously agreed that false and evasive answers bad been given by Oliver in answer to questions. Thereupon Judge Hartrick adjudged Oliver guilty of contempt of court and sentenced him to 60 days in tbe Oakland county jail.
Following tbe conviction and sentence a petition was filed in this Court on behalf of Oliver, asking for a writ of habeas, corpus, with accompanying-writ of certiorari, to inquire into tbe legality of bis conviction, sentence and imprisonment. On tbe fil ing of said petition the writs were issued, and Oliver, herein referred to for the sake of clarity and brevity as the plaintiff, was released on bail. The matter is before this Court on the petition and Judge Hartrick’s return.
The return sets forth that, in the course of the investigation referred to, it was called to the attention of the circuit judge, acting as a grand juror, that plaintiff was the owner of certain pin ball machines which were being operated in Oakland county, and which, it was suspected, were being used for gambling purposes; and that plaintiff had purchased from one C. A. Mitchell, doing business as the Midwest Bonding Company, a series of instruments referred to as “bonds,” for which plaintiff had paid Mitchell certain sums of money. The return further shows that Oliver was questioned before the grand jury concerning his dealings with Mitchell, and also as to the location of the bonds in' question. The testimony that Judge Hartrick and his associates concluded was false and evasive is as follows:
“Q. Now, in September of 1944 you were approached by a man named Carman A. or Carman E. Mitchell with reference to the purchase of certain bonds which were to cover pin ball machines that were owned and operated by you in the county of Oakland, that is right? '
“■A. Yes.
“Q. Where are those bonds now?
“A. Well, I destroyed them.
“Q. When?
“A. Well, I don’t remember the exact date. I imagine I destroyed it at the end of the year. You know, when going through my papers I didn’t see any use for keeping them because they had expired.
“Q\ ¡What method did you use to destroy them?
“A. 'Well, I don’t know offhand just what I did do with them, whether I burned them or threw them ont. I must have threw them out:
“Q. Did you ever buy any bonds of that kind before?
“A. No.
“Q. Never had any of that kind of bonds in your possession before in your lifetime?
“A. No, I never did.
“Q. ■ You never had an event of that kind occur in all your life did you?
“A. No..
“Q. And you want us now to understand, even in view of the fact that those were the only bonds of this type that you ever owned or handled, you want /•'us to believe that you cannot tell us now what method you employed in destroying them?
“A. ■ I just got rid of them. I imagine I threw them in the waste paper basket. That is what I usually do. I get lots of circulations, papers, things that I have no use whatever for, threw them in the waste paper basket.
“Q. "When do you think you threw them away?
“A. Possibly the end of the year, found them in there, run out, expired.
“Q. The closest thing to accuracy that you*can give us regarding those bonds, is that you, are hot sure when you destroyed them, are not shre what method you employed to destroy them?
“A. The only — I couldn’t say what I did do. Probably threw them in the trash can.
Q. That is as close as you can tell us?
“A. No, no, I don’t remember what I did do with them. I can’t say positive what I did do with them.
“Q. Where were you when C. A. Mitchell first talked to you about the purchase of these bonds?
“A. Well, to the best of my memory I was in his office. * * #
‘ ‘ Q. Who .mentioned these bonds first, you or he ?
“A. He did.
“Q. What did he tell you about them?
“A. Oh, he just handed me one, told me to look it over.
“Q. Did you look it over?
“A. Yes.
“Q. Did you read it?
“A. Yes.
“ Q. What next was said?
“A. Well, he went ahead to explain to me about the bonds, you know, what it was for.
“Q. What did he tell you it was for?
“A. To reimburse the county for any expense, extra expense they had to go to in case the machines, anybody was caught gambling on the machines or anything illegal.
“Q. Your machines are perfectly legal, are they not?
“A. They were, yes.
“Q. Did he tell you who he was going to prevent from using that gambling device?
“A. He didn’t tell.
“Q. Didn’t you ask? You know, according to the ruling they can be gambled on.?
“Q. You know people go in and bet on high scores things like that?
“Q. Did Mitchell mention that to you before you bought them?
“A. Well, he stressed upon if the county had to go to any expense, extra expense, the bonding company would pay the expense.
“Q. Did you consult the prosecuting attorney about it?
“A. No, I didn’t.
“Q '. You knew the county was involved, did you not?
“A. Well, yes.
“Q. Didn’t you think it was any of the county’s business that some stranger was making a contract for the county?
“A. No, I didn’t think anything special about J-j. # # $
“Q. Did you have any conversation with anybody else about these bonds before you, bought them ?
“A. Yes, I spoke to McNamara about it.
“Q. McNamara is now dead is he not?
“A. Yes.
“Q. Who else?
“A. I spoke to Hartley about it.
“Q. What conversation did you have with Hartley?
“A. Well, I asked him what he thought about it. He said, well, he didn’t know. He said McNamara had' an attorney and was going to see the prosecutor about them. He said he was going to .wait and see what information he got before he did anything.
“Q. You went to Hartley and asked him what he thought?
“A. I went to him or called him up, I don’t know which. Anyway I discussed it. * * #
“Q. What protection did you think you were getting out of this transaction?
“A. Well, you know, they just hand down a ruling that the machines in some places are illegal, if they caught them gambling on them, things like that. I figured it would show our good faith, we were trying to, run them legitimately.
“Q. How did you think C. A. Mitchell could enforce the law as far as your machines were concerned? '
“A. I don’t know. He didn’t say ‘Enforce the law, show our,good faith.’ We had a little sticker we put on the machines. * * *
“Q. You didn’t seek any advice from Mr. Dohany before you parted with your money, or in relation to these bonds, did you?
“A. No.”
In the brief filed on behalf of plaintiff it is contended, first, that plaintiff’s summary conviction of contempt constituted a denial of due process of law and, hence, violated article 2, § 16, of the State Constitution, and section 1 of the Fourteenth Amendment to the Federal Constitution; second, that due process of law, under both the State and Federal Constitutions, required the filing of charges,-notice of hearing to the accused, and a hearing on such charges; third, that contemptuous misbehavior toward a grand jury conducting an investigation under the statutory provisions above cited is not contempt of court. These questions were all raised in the case of In re Hartley, 317 Mich. 441; in which the conviction of Hartley for contempt, committed under circumstances analogous to those in the case at bar, was sustained by an evenly divided court. They were discussed at some length by Justice Dethmers in his opinion, and it is unnecessary to repeat what was there said. " The claims made are without merit.
This brings us to the consideration of the question whether, as a matter of fact, plaintiff was guilty of contempt of court. The return of the circuit judge as to the facts must be taken as true. This Court does not weigh the testimony but. examines it to determine- if there is evidence to support the finding. People v. Doe, 226 Mich. 5; In re Slattery, 310 Mich. 458 (certiorari denied 325 U. S. 876 [65 Sup. Ct. 1553, 89 L. Ed. 1993]), An examination of the testimony given by Oliver with reference to his dealings with Mitchell leads to the conclusion that plaintiff sought to withhold his real reason, or reasons, for paying money to Mitchell, ostensibly for the bonds. Ño copies of these instruments appear in the record in the instant case, but the return of the circuit judge states that he was satisfied, after investigation, that the instruments were the same as those sold by Mitchell to Hartley. It may be noted in this connection that , an affidavit, set forth in the record, filed by plaintiff in support of a motion for a more complete return, sets forth that said plaintiff in his testimony before the grand jury identified a duplicate of a bond purchased by him from Mitchell. It thus appears that there was testimony before th'e grand jury with reference ,to the form of the bonds that plaintiff received from Mitchell. A copy of a bond in the Hartley Case, supra, is set forth in the opinion of Justice Dethmers therein.
Plaintiff testified that he read one of the bonds, received by him from Mitchell, but his answers to questions as to why he had purchased them, and what protection he thought he was receiving through them, were vague and uncertain. The g'rand juror and his associates were fully justified in- concluding that Oliver was intentionally evasive. He offered no plausible reason whatsoever for the payments made by him to Mitchell. What was said by Justice Dethmers in the Hartley Case, supra, with reference to testimony of Hartley, may well be applied to the statements of Oliver. It is apparent that for some reason he did not wish to disclose to the grand juror the precise nature of his dealings with Mitchell.. His evasive -replies clearly tended to ob■struct the investigation and were, in consequence contemptuous in character. It is scarcely conceivable that plaintiff did not know the real reason why he took these so-called bonds from Mitchell, and paid money to the latter.
Judge Hartrick and his associates also concluded that Oliver’s answers to questions relating to his disposition of the bonds were likewise false and evasive. He first claimed that he destroyed the instruments, but in answer to further questions was unable to- tell when or where or by what means he did. so, and finally concluded by stating that he did not remember what he did with them. Concededly, however, the instruments were of an entirely different character than any that he had ever previously possessed. If, as he at one time suggested in his testimony, he wanted.to show his “good faith” in the operation of his machines, it is a reasonable inference that he would have preserved the so-called bonds.
■ The circuit judges had the advantage of hearing plaintiff’s testimony apd of noting his demeanor in giving it. The conclusion reached finds support in the record. An order will accordingly enter dismissing’ the petition and remanding plaintiff to the custody of the sheriff of Oakland county for service of his sentence in accordance with the order of the circuit judge.
Bttshnell, Sharpe, and Dethmers, JJ., concurred with Carr, C. J.
North, J.
William Oliver, herein designated as plaintiff, in September, 1946, after testifying in a so-called one-man grand jury proceedings conducted by Honorable George B. Hartrick, one of the Oakland county circuit judges, was committed under a 60-day sentence for contempt of dburt. On plaintiff’s petition we issued writs of habeas corpus and certiorari, that we might review and test the validity of his commitment. Pending the appeal he was released on giving bond. The case has been submitted to this Court, and Chief Justice Carr has written for affirmance of the sentence imposed. For reasons hereinafter noted, I am unable to concur in .that result.
The proceedings incident to the hearing before the grand juror, including questions propounded to and answers made by plaintiff, adequately appear in the opinion of the Chief Justice, and therefore are not herein repeated. Prom that opinion, and also from the record, it clearly appears that the asserted justification for finding plaintiff guilty of contempt was, as stated by the Chief Justice, “that false and evasive answers had been given by Oliver in answer to questions.” Hence the scope of our review is this: Is there any competent evidence in the record in support of the finding below that when plaintiff was testifying he gave answers- which were (1) evasive or (2) false?
As noted above, the testimony quoted in my Brother’s opinion discloses all there is in the record bearing upon the issue as to whether any of plaintiff’s answers were evasive. A careful reading of that testimony fails to disclose a single evasive answer, especially when read in connection with the whole of the quoted testimony. Instead each answer was courteous and responsive. It is true that plaintiff was not able to give positive and definite answers to some of the questions. But that circumstance must be viewed in the light of the subject matter of the examination. So far as it was relevant or material, the examination pertained to plaintiff’s conversations with one Mitchell through whom plaintiff had purchased so-called bonds incident to the operation of various pin ball machines in different localities; and to the reason why plaintiff bought the so-called bonds, also the manner in which plaintiff disposed of the bonds after they had expired by their own terms. It is important to note that the bonds were purchased in September, 1944, but plaintiff’s testimony involved herein was not given until two years later, September, 1946. Is it at all strange that when testifying in 1946 plaintiff could not give a verbatim or detailed statement of quite commonplace conversations which occurred between him and Mitchell in 1944? Again, it was a year after the bonds had expired when plaintiff was interrogated as to what disposition he had made of the then worthless papers. There is no dispute or conflict in the testimony that plaintiff destroyed the bonds or threw them out as waste paper. Can it be said that a witness who is unable to testify definitely as to how he disposed of, for example, an automobile policy that had expired á year previously is thereby shown to be evasive in his testimony or that he is guilty of giving false testimony? . If so, many an honest person would hazard being headed for jail whenever summoned as a witness.
So far as appears from the record quoted in my Brother’s opinion, plaintiff’s testimony as to his reason for purchasing the bonds is true and plausible. Nothing in the record contradicts those answers. The record affords no ground for finding them either false or evasive. Perchance the testimony of this witness was not what the examining grand juror had expected the witness would give, but neither that circumstance nor anything disclosed by this record indicates evasiveness by plaintiff as to conversations with Mitchell or his reasons for purchasing the bonds. Such a record does not justify punishment for contempt.
Likewise as to the charge that plaintiff Oliver gave false testimony and was imprisoned therefore, a diligent review of the record fails to disclose a justification. The return of Judge Hartrick to our writ of certiorari wholly fails to specify any particular answer or 'answers in plaintiff’s testimony that are shown by anything in the record to be false. Instead the return quotes plaintiff’s testimony at length, the substance of which is embodied in' the opinion herein of the Chief Justice. The return leaves it to this reviewing Court to guess which of plaintiff’s answers were, in the opinion of the circuit judge, false. Such a return is not adequate nor is it fair to the person charged. Both he and we are entitled to he- specifically informed of the claimed falsity, so that the issue may he accurately reviewed by this Court and so that plaintiff may purge himself of the contempt, if he finds occasion so to do. At no time has the circuit judge informed plaintiff (or this Court) of the precise portion of plaintiff’s testimony that was deemed to be false, instead at the close of plaintiff’s examination the judge merely announced: “Because the story (plaintiff’s testimony) doesn’t, if you want it put in language you understand, doesn’t jell. * * * I don’t think any'one person who reads your testimony, reads this record, could believe this story.” The character of the return in the instant case quite clearly discloses a lack of justification for punishment of plaintiff on the ground that he gave false testimony.
In a case of this character the record is fatally defective as^ to the charge of falsifying, unless it contains other facts or circumstances which reveal falsity or unless the testimony of. the witness intrinsically discloses falsity. It is not sufficient that a judge may have knowledge dehors the record which might justify the conclusion that the witness gave false testimony. That is the fatal defect in the instant record as to this phase of the case. On the record before us. there is no justification for concluding that plaintiff’s answers or any of them were false as against the opposite conclusion — i.e., that his -answers were true. Hence the circuit judge’s conclusion as to falsity is without justification in this record, and plaintiff should not have been committed for contempt on the ground of assumed falsification. If the circuit judge had a suspicion that plaintiff was testifying falsely, he might well have done as the court did in State v. Meese, 200 Wis. 454, 463.(225 N. W. 746, 229 N. W. 31), where it is stated:
_ “The court, however, was suspicious that the witness was not telling the truth, and on his own motion subpoenaed witnesses and ordered production of books and papers to determine the truth or falsity of the defendant’s testimony. He found that the defendant did not testify truthfully, and that because thereof he had obstructed justice.”
Had the above practice been pursued in the instant case a record might or might not have been made which would have disclosed justification for a contempt commitment. ’ But on the record before us a determination in accord with that of the circuit judge would be based on pure guess or merest conjecture. Such a record does not justify punishment for contempt of court on the grounds asserted in the instant case, in which the record is not at all comparable to that In re Slattery, 310 Mich. 458 (certiorari denied 325 U. S. 876 [65 Sup. Ct. 1553, 89 L. Ed. 1993]). The distinction is sufficiently pointed out in the opinion of Mr. Justice Boyles In re Hartley, 317 Mich. 441.
“On certiorari the Supreme Court reviews-questions of law and determines only whether there was evidence of any facts which justify findings of the trial judge.” In re Gilliland (syllabus), 284 Mich. 604.
Contempt proceedings are criminal in their nature rather than civil. Riegler v. Kalamazoo Circuit Judge, 222 Mich. 421, citing Carnahan v. Carnahan, 143 Mich. 390 (114 Am. St. Rep. 660, 8 Auu. Cas. 53). It is said In re D. Levy & Co., 73 C. C. A. 558 (142 Fed. 442):
“We are not unmindful of the general rule that the power to'imprison for contempt in such cases should be exercised with great caution, and only upon proof which establishes the facts found beyond a reasonable doubt, or which must, in any event, be clear and convincing.”
The Supreme Court of Wisconsin has said:
*‘ The power to punish for contempt is to be used but sparingly. It should not be used arbitrarily, capriciously, or oppressively.” State v. Meese, supra 458.
In United States, ex rel. Paleais, v. Moore (C. C. A.), 294 Fed. 852, a headnote reads:
“The power to punish for contempt, being far-reaching and drastic should always be exercised cautiously, and with due regard to constitutional rights. ’ ’
On the record before us, which does not contain testimony by plaintiff which was evasive- or which showed he falsified, our conclusion is that plaintiff was unjustly committed for contempt of court; and for that reason the judgment entered in the circuit court should be vacated and plaintiff’s bond released.
Butzel,' Boyles, and Reid, JJ., concurred with North, J.
For copy of bond, see In re Earfley; .317 Mich. 441, | [
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Boyles, J.
The workmen’s compensation commission awarded plaintiff reimbursement for surgical and hospital services which were incurred by plaintiff approximately 18 months after the date of a compensable injury. The defendant appeals, claiming that the applicable statute limits the right to reimbursement for medical, surgical and hospital services to the first 12 months after the injury. See Act No. 10, pt. 2, § 4, Pub. Acts 1912 (1st Ex. Sess.) (2 Comp. Laws 1929, § 8420), as last amended by Act No. 325, Pub. Acts 1945 (Comp. Laws Supp. 1945, § 8420, Stat. Ann. 1946 Cum. Supp. §17.154), The applicable part of said part 2, § 4, provides:
“The employer shall furnish, or cause to be furnished, reasonable medical, surgical, and hospital services and medicines when they are needed, for the first 6 months after the injury and thereafter for not more than an additional 6 months in the discretion of the commission, upon written request of the employee to the commission and after the employer or his insurer has been given an opportunity to file objections thereto and to be heard thereon. * * * If the employer shall fail, neglect or refuse so to do such employee shall be reimbursed for the reasonable expense incurred by or on his behalf in providing the same, by an award of the commission. ’ ’
In March, 1944, plaintiff sustained a compensable injury to his knee, applied for and was granted compensation. No question is here raised as to such •award of compensation. At a hearing before a deputy commissioner, the testimony showed that the defendant had failed or neglected to provide medical, surgical and hospital services for the injured knee, that 18 months after the injury the plaintiff consulted his. own doctor, was hospitalized, and a surgical operation performed on the injured knee. His expenses were $160 for doctor bill and $99.89 for hospital bills.' The deputy denied reimbursement. The plaintiff appealed to the full cornmis sion and on review the award of the deputy was reversed and plaintiff awarded reimbursement. Prom this award the defendant now appeals. The, controlling question is whether the statute allows reimbursement to an employee for surgical and hospital services incurred after the expiration of 12 months from the injury.
The statute is not without ambiguity, and since the amendment in 1945, it has not been construed by the Court. Plaintiff claims that it does not limit the time to 12 months from the injury, for which the employer may be required to furnish surgical and hospital services. The defendant claims that the additional 6 months’ period begins to run at the expiration of the first 6 months from the injury, and that the commission has no authority to award reimbursement unless the services were performed within that time. Some light may be shed on the question by considering the provisions of this section as they were before it was amended by Act No. 245, Pub. Acts 1943, by which act the time during or for which an employer was required to furnish medical, surgical and hospital services was changed from “during the first 90 days after the injury,” to “for the first 6 months after the injury and thereafter for not more than an additional 6 months. ’ ’ This same amendment was followed and re-enacted in Act No. 325, Pub. Acts 1945, at which time the last sentence of section 4, part 2, was added. , Prior to the 1943 amendment it provided as follows:
“During the first 90 days after the injury the employer shall furnish, or cause to 'be furnished, reasonable medical, surgical and hospital services and medicines when they are needed.” Act No. 10, pt. 2, § 4, Pub. Acts 1912 (1st Ex. Sess.), as amended by Act No. 64, Pub. Acts 1919 (2 Comp. Laws 1929, §8420 [Stat. Ann. § 17.154]).
Obviously the legislature by the 1943 and 1945 amendments intended to extend the time for which .an employer may be required to furnish medical, surgical and hospital services to an injured employee, and not merely the time during which such liability exists. While the maximum period of such liability is 12 months — the first 6 months after the injury and an additional 6 months thereafter — the statute, does not require that the two periods must be consecutive. Whether an employee should be allowed reimbursement for medical, surgical and hospital services, for, some additional 6 months’ period, subsequent-to the first 6 months, is left to the discretion of the commission. This phrase, taken in its entirety, must be considered to mean that an. employer shall furnish, or cause to be furnished, reasonable medical, surgical and hospital services and medicines for the first 6 months after the injury, and that the commission, in its discretion, may require the employer to furnish such services for .not more than an additional 6 months thereafter, not necessarily limited to 12 months from the injury.
In this case plaintiff’s injury occurred March 18, 1944. Between that date and April 22d, plaintiff went to defendant’s first aid several times for treatment. The injured knee became swollen and plaintiff made this condition known to the defendant in May, to explain absences from work. He was told at defendant’s first aid station to consult his owp. doctor. He finally did so, and the hospital and medical services for which plaintiff seeks reimbursement were incurred in September, 1945, at which time an operation was performed on the injured knee for a fractured cartilage. Plaintiff’s application for compensation for total disability was filed October 18, 1945. It did not specifically ask for “an ad justment of attorney or medical fees,” that part of the application blank being left unanswered. The deputy awarded compensation but denied reimbursement for medical and hospital expenses. On appeal, the commission awarded compensation for total disability for various periods of time between March 18, 1944, and October 18, 1945, and, also, reimbursement for hospital and medical expenses.'
The final question urged by appellant for reversal is that plaintiff is not entitled to the award for reim-' bursement for medical and hospital expenses because no written request therefor was made to the commission. Doubtless the 'appellant by this question intends to claim that ah employee has no right to an award for medical and hospital expenses incurred after the expiration of 6 months from the date of the injury unless the employee has first applied ' to the commission and obtained an order authorizing the incurring of such additional services. Orderly procedure under section 4, part 2, of the act, s.upr.a, contemplates such practice. Such a preliminary order was required by the statute laws and by judicial construction of the same in Pennsylvania, Missouri and Oklahoma, in the cases cited by-appellant (Pickens v. State Workmen’s Insurance Fund, 140 Pa. Sup. 258 [13 Atl. (2d) 896]; Johnson v. Kruckemeyer, 224 Mo. App. 351 [29 S. W. (2d) 730]; Gleason v. Brashear Freight Lines, Inc. (Mo. App.), 188 S. W. (2d) 72; Oklahoma Portland Cement Co. v. Frazier, 184 Okla. 321 [87 Pac. (2d) 328]). However, the compensation law of this State does not,require that there must first be a “special order” of the commission, as in Missouri, or an order “requiring the employer to furnish such further services,” as'in Pennsylvania,o as a condition precedent to reimbursement for medical and hospital expenses. On the contrary, it is left, to the discre tion of the commission whether the employee 11 shall be reimbursed” for such reasonable expense if the employer shall “fail, neglect or refuse” to furnish such additional services.
In the ■ instant case, at the hearing before the-deputy where defendant was represented by counsel, testimony regarding such reimbursement was received without objection, and the question of such reimbursement was heard by the deputy; and. on appeal was reviewed by the full commission. Appellant had ample opportunity “to file objections thereto and to be heard thereon,” as said section 4, part 2, requires. No question has been raised regarding the time of giving notice to the employer or the time within which claim for compensation must be filed. There is- no dispute as to the necessity for these hospital and medical services furnished to plaintiff, or as to reasonableness óf the amount of expense. The defendant has not been prejudiced by the failure of plaintiff to make'such written request to the commission. Under these circumstances we feel that a written application to the commission is not a condition precedent to the exercise by the commission of its discretion to make an order for reimbursement.
The award is affirmed, with costs.
Carr, C. J., and Bushnell, Sharpe, Reid, and North, JJ., concurred .with Boyles, J. Dethmers, J., concurred in the result. Butzel, J., did not sit. | [
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Bttshnell, J.
Agnes L. Allen'died on October 20, 1942, leaving as her heirs at law a son and daughter, defendants Claude B. Allen and Beulah Hudson, and four grandchildren, plaintiffs June Allen Rice, Evelyn Allen Brenner, and defendants Charles El Allen and Claude B. Allen, II.
Agnes L. Allen, during her lifetime, owned and occupied a modest home in Battle Creek, on which a bank held a small mortgage with a balance due thereon of $112.34. Preceding her death and while she was a patient in a convalescent home operated by Dr. M. L. Riemann, Charles H. Lockwood, an attorney, was called for the purpose of advising Mrs. Allen as to the disposition of her property. Lockwood drafted a deed conveying the property to Mrs, Allen’s son, defendant Claude B. Allen, with-a reservation of a life estate therein. Claude was not present at the time the deed was executed. He later testified that the first knowledge he had of the deed was when he received it by mail at Cleveland, Ohio, where he was then living.- He stated that he had a conversation with plaintiffs relative to the real and personal property of' his mother shortly after her death; that he told them, in answer to their inquiry as to when they would get their share of the property, that they would get it when “everything was properly taken care of.” He admitted other conversations in which he stated that each heir would get his share. ' He also testified as follows:
“Q. Did you, at the time you told them that, intend that they should receive something from this property?
“A. I did.
“ Q. Is it your present intention that they should receive something from the property?
“A. It is not, due to their conduct and their attitude towards me.”
After Mrs. Allen’s death, a letter, in her own handwriting, was found among her papers. It was dated April 12, 1940, several years prior to the execution of the deed. It reads:
£<My dear children:
This is what I wish you all to do after I am gone; first Claude is to receive five hundred $500 dollars more than the rest of you as he has given me so much, then you all are to help with my funeral expenses, then after the balance of Charlie’s funeral expenses are paid his children are to receive their share, but the funeral expenses for Charlie are to come all out of their (his childrens’) share.
With love from your
Mother. ’ ’
After his mother’s death, defendant Allen collected some insurance money, which was applied on the funeral bill. Out of the rentals of the home he paid other debts of the deceased, and, also, taxes on the property. In 1944 he mortgaged the property for $2,750, which mortgage has since been paid.
The testimony shows that the real estate has a value of $5,300 and the personal property of $275.
Plaintiffs contend that the deed in question was obtained by fraud and misrepresentation, in reliance upon Claude’s promise to pay his mother’s debts 'and divide the residue in accordance with her wishes. Plaintiffs also claim that Mrs. Allen was advised by Lockwood that it would be less expensive to convey her property by deed, reserving a life estate therein, rather than to execute a will.
A bill of complaint was filed on November 22, 1944, seeking to impose a constructive trust on the property. The court, after hearing the parties and discussing the applicable law at length, found that defendant Claude B. Allen held legal title as trustee for the uses and purposes set forth in his mother’s letter. He was ordered to sell the property and, after deducting from the proceeds all of the dece dent’s debts, to distribute the balance to her heirs at law in accordance with her wishes.
Defendant Claude B. Allen has appealed from a decree entered in conformity with the trial court’s opinion.
In Mortis v. Vyse, 154 Mich. 253 (129 Am. St. Rep. 472), the Court quoted with approval the following from 3 Pomeroy on Equity Jurisprudence (3d Ed.), § 1053:
“ £In general, whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentations, concealments, or through undue influence, duress, taking advantage of one’s weakness or necessities, or. through any- other similar means, or under any • other similar circumstances, which render it unconscionable for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same, although he may never perhaps have had any legal estate therein; and a court of equity has jurisdiction to reach the property, either in the hands of the original wrongdoer, or in the hands of any subsequent holder, until a purchaser of if in good faith and without notice acquires a higher right, and takes the property relieved from the trust. The forms and varieties of these trusts, which are termed ‘ ‘ ex maleficio” or ££ex delicto,” are practically without limit. The principle is applied wherever it is necessary for the obtaining of complete justice, although the law may also give the remedy of damages against the wrongdoer.’ ”
It is well established that fraud is never’presumed and cannot- be lightly inferred, and that the burden of proof is upon the plaintiff. Howard v. Reaume, 310 Mich. 119, 125. The following quotation in that case from Boston Piano & Music Co. v. Pontiac Clothing Co., 199 Mich. 141, 147, is particularly applicable to the facts in the instant case:
“ ‘Statements promissory in their character that one will do a particular thing in the future are not misrepresentations, but are contractual in their nature, and do not constitute fraud. Hubbard, v. Long, 105 Mich. 442; Macklem v. Fales, 130 Mich. 66. * * * 12 R. C. L. p. 254, lays down the rule in the following language: " • •
“ ‘ “ Since a fraud must relate to facts then existing or which have previously existed, the general rule is that fraud cannot be predicated upon statements promissory in their nature and relating to future actions, nor upon the mere failure to perform a promise, or an agreement , to do something at a future time, or to make good subsequent conditions which have been assured. Nor, it is held, is such nonperformance alone even evidence of fraud. Reasons given for this rule are that a mere promise to perform an act in the future is not, in a legal sense, a representation, and a failure to perform it does not change its character. Moreover, a representation, that something will be done in the future, or a promise to do it, from its nature cannot be true or false at the time when it is made. The failure to make it good is merely a • breach of contract, which must be enforced by an' action on the contract, if at all.” ’ ”
However, where fraud is alleged, much latitude is allowed in the admission of circumstantial evidence.
“ ‘And no rigid rule of evidence can be applied to measure the admissibility of circumstances, for they arise out of the condition, relation, conduct, and declarations of the parties, and those are infinitely diversified’ (Stauffer v. Young, 39 Pa. 455). This Court said in Ross v. Miner, 64 Mich. 204, 206:
“ ‘But it is quite possible that fraud can be made out by proof of subsequent acts throwing light on what was done before the dealings assailed.’ ” Krolik v. Lang, 187 Mich. 286, 291.
We, therefore, find no error in admitting the letter and other testimony.
A careful review of the record in the instant case does not disclose convincing evidence .that the deed in question was given as a result of any represen-, tations by-defendant Claude B. Allen, or any un<|erstanding or agreement upon which a constructive trust may be predicated. See Hewelt v. Hewelt, 245 Mich. 108.
The testimony is undisputed that Claude B. Allen was a dutiful son-, who aided and assisted his mother in her affairs. He was not present at the time the deed was executed and never met attorney Lockwood, who drafted the deed, until after his mother’s death. The.statements made by him were merely promissory in nature and do not constitute admissions on his part that he had acquired title to the property in a fraudulent manner.
We do not agree with the conclusion reached by the .trial judge, and are obliged to hold that the doctrine of a constructive trust is not applicable to the instant case.
The decree is vacated and one may be entered here dismissing plaintiffs’ bill of complaint. Costs to appellant.
Carr, C. J., and Butzel, Sharpe, Boyles, Reid, North, and Dethmers, JJ., concurred. | [
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North, J.
A bill of interpleader was filed by
National Bank of Detroit against Isabella Davis Wing, individually and as administratrix of the estate of Oliver D. Davis, deceased, and Edward S. Piggins, receiver of Toynton-Brown Company, a Michigan corporation in the procéss of dissolution. Harry Z. Marx, was permitted to intervene. A settlement was effected in consequence of which Isabella Wing, both individually and in her representative capacity, no longer has any interest in the subject matter of this suit. The contest for ownership of the fuilds deposited in National Bank of Detroit is between Harry Z. Marx, intervener, and Edward S. Piggins, receiver of Toynton-Brown Company. - Except as to th$ sum.of $186.04 which the receiver admits belongs to the intervener, the receiver prevailed in the trial court. Prom the decree entered the intervening defendant, Harry Z.. Marx, bas appealed to this Court.
Appellant seeks to establish his ownership of a-n account in the National Bank of Detroit created by deposits made by the Toynton-Brown Company of moneys collected from the sale of lots in Riverwood Estates Subdivision of which he was the grantor "in' deeds or the vendor in land contracts, acting as trustee for the owners. This account, known as the “Riverwood Account,” amounted to $880.67. Appellant in his amended cross' bill also seeks to recover the sum of $6,702.62 which he alleges was wrongfully retained as sales commissions by the Toynton-Brown Company from collections made on sales of .lots.
The Toynton-Brown Company was incorporated in 1938 by Charles P. Brown, Ralph E. Toynton and their wives. The general purpose of this corporation was to negotiate real estate transactions. A memorandum of policy was drafted by Charles P. Brown and approved by Ralph E. Toynton at the time the corporation was formed. It defined the respective duties of Brown and Toynton providing that Brown would “have general charge of acreage and suburban activities” while Toynton would take charge “of the general brokerage.” Charles P. Brown had previously done real estate.business as Thompson-Brown Company and as Charles P. Brown. The memorandum of policy provided:
“The old companies will be used merely as holding companies with no new business of any nature transacted by either, of them. * # s The only object of keeping the old companies as going concerns is for the purpose of completing business now in process of completion and for the purpose of liquidating obligations. The parties hereto earnestly pledge their undivided energy and support to the aggressive progress of the new company, keeping in mind always the highest standard of ethics and business practice.”
During the years 1939, 1940 and 1941, Charles F. Brown held a real estate license, issued by the Michigan corporation and securities commission, as an associate real estate broker as a member or officer of Toynton-Brown Company. In April, 1939, Harry Z. Marx authorized Toynton-Brown Company to make an offer and pay a deposit of $200 on certain real estate held by Union Guardian Trust Company in its fiduciary capacity. Charles F. Brown acted on behalf of Toynton-Brown Company. The offer to purchase was accepted and on January 22, 1940, a land contract for the sale of this real estate was executed,- Harry Z. Marx being the purchaser. In July, 1939, Charles F. Brown told Ralph E. Toynton that the Toynton-Brown Company.was to have a selling, contract on said real estate and that the company was leaving its acreage commission in the venture for* a stock interest in the property to be known as Riverwood Estates Subdivision.
The Toynton-Brown Company developed the Riverwood Estates Subdivision for the sale of individual lots, arranging for and advancing corporate funds to pay for having the real estate surveyed, and its streets graded and' gravelled. Signs offering the property for sale were erected on the property by Toynton-Brown Company. ToyntonBrown Company undertook all of the preliminary steps including the preparation of laud contracts in effecting sales of the lots in this subdivision. The land contracts were sent to Marx by Toynton-Brown Company, accompanying- letters of transmittal were written on Toynton-Brown Company stationery.
Vendees in these land contracts made their payments to Toynton-Brown Company. Until July 1, 1941, it was the practice of Toynton-Brown Company to deduct their commissions from collections and credit said commissions to the company. In June or July, 1941, a separate bank account was set up' for the deposit of collections from lots sold in Riverwood Estates Subdivision and each month thereafter Toynton-Brown Company drew cheeks against this account for" commissions earned' in the preceding month. Checks were drawn and mailed by the Toynton-Brown Company to appellant. Monthly collection reports and balance sheets pertaining to the fiscal status of lots'sold in. said subdivision were prepared and submitted to Charles F. Brown and appellant received some of them. A set of books called the Riverwood Estates books was opened. Appellant admitted somewhat reluctantly that he owned these books but denied that he knew the contents until . after dissolution proceedings were commenced. They reflected financial data pertaining to transactions involving the sale of lots in Riverwood Estates Subdivision. At the time the bill for dissolution of the Toynton-Brown Company was filed, the ledger of that company, showed that certain sums were due it from the owners of River-wood Estates Subdivision. The Riverwood Estates books also showed that these sums were owed to Toynton-Brown Company.
Appellant asserts that he- never consented to the action of Toynton-Brown Company, in selling the lots in Riverwood Estates Subdivision and did not learn that Toynton-Brown Company had sold lots in said subdivision until after dissolution proceedings were initiated. It is his claim that he entrusted the development of this subdivision to Charles F. Brown, individually, whom he had known and dealt with for years and in whom he had implicit confidence. He also asserts he opposed the formation of Toynton-Brown Company and that he stated to Charles F. Brown and Ralph E. Toynton that Toynton-Brown' Company was to have no part in the development and sale of lots in Riverwood Estates Subdivision. Appellant Marx testified in substance that when he noticed he was receiving checks for the sale of lots in said subdivision from Toynton-Brown Company, reports- anent the financial status of real estate transactions involving the sale of lots in said subdivision and letters concerning the sale of said lots written on the stationery of Toynton-Brown Company, he asked Brown for an explanation; that Brown told him these things were being done merely as an accommodation for Brown. Appellant also claims that it was his understanding that Brown individually was collecting the commissions on the sales of the lots in said subdivision, and appellant asserts that if Brown made arrangements with Toynton-Brown Company to sell lots, “then that was definitely contrary to instructions.” The sum and substance of appellant’s contention is that Toynton-Brown Company was at best a mere volunteer or interloper acting without authority of a written contract or any contract for that matter, and therefore its retention of funds collected as commissions was unlawful. Appellant does not assert a right to recover on the ground that the retained commissions were excessive.
This being an equity- case, review in this Court is de novo. Laying aside for the moment possible application of the statute of frauds, we first consider appellant’s contention that no contract, much less a written contract, existed which warranted Toynton-Brown Company’s selling lots in River-wood Estates Subdivision and retaining commissions on the sales. Incident to such consideration it may be conceded that neither a written nor an express oral- contract existed'’by which ToyntonBrown Company was authorized to sell the lots and retain commissions. However, the existence or nonexistence of such a contract is unimportant, because this is not the case of a real estate agent seeking to collect commissions on the sale of real property. Instead, it is the case of a grantor or vendor seeking to undo that which has been fully accomplished, and on the theory that had the commissions not already been paid the real estate agent for want of a contract could not collect such commissions.
Despite appellant’s denials, disavowals and explanations we think the record justifies the finding that he knew and consented to Toynton-Brown Company’s selling the lots, collecting payments and retaining commissions for its services. In this connection, it is well to note that appellant is an attorney who has had years of extensive experience in real estate transactions. Furthermore, he was acting as a trustee for the equitable owners of this subdivision and therefore doubtless was mindful of what was being done and how it was being accomplished. At the outset, appellant authorized Toynton-Brown Company to make an offer to purchase the real estate in question and to pay a deposit in connection with that offer. He received from the Toynton-Brown Company land contracts, letters, financial reports, and checks, all of which pertained to the sale of lots in Riverwood Estates Subdivision. A set of books, which we think were kept for appellant’s benefit, called the Riverwood Estates books was prepared in which the entries were in accord with the ledger entries of ToyntonBrown Company as to sales of lots in Riverwood Estates Subdivision. The entries in both sets of books are indicative of the various transactions having*, been between the Toynton-Brown Company and Marx, rather than between Brown individually and Marx.
Without further review of facts and circumstances disclosed by the record, we are of the opinion that, on the basis of facts actually within appellant’s knowledge and his own acts in relation thereto, notwithstanding appellant’s denial of such knowledge, he knew of and consented to the activities carried on, and the services rendered by, Toynton-Brown Company in his behalf and that he accepted such benefits with full knowledge and understanding. Under such circumstances, because there is no equity in appellant’s contention, he should not prevail in this equity suit, unless such a result is unavoidable perforce of the statute of frauds.
As hereinbefore indicated appellant relies on the statute of fraud-s. The pertinent statutory provision reads:
“Seo. 2. In the following cases specified in this section, every agreement, contract and promise shall be void, unless such agreement, contract or promise, or some note or memorandum thereof be in writing and signed by the party to be charged therewith, or by some person by him thereunto lawfully authorized, that is to say: * * *
“5. Every agreement, promise or contract to pay any commission for or upon the sale of any interest in real estate.” 3 Comp. Laws 1929, §13417, as amended by Act No. 261, Pub. Acts 1945 (Comp. Laws Supp. 1945, §13417, Stat. Ann. 1946 Cum. Supp. § 26.922).
The quoted provisions of the statute relate only to agreements, promises or contracts which have not been fully executed. They may not be applied to and thereby afford a basis of recovery incident to fully consummáted transactions. • Such was our recent holding in Grand Rapids Realty Co. v. Rogers, 317 Mich. 454. As being particularly applicable to the instant case see Bagaeff v. Prokopik, 212 Mich. 265 (17 A. L. R. 1292). In 37 C. J. S. at page 738, citing many authorities, it is said:
“It is well settled that the statute of frauds applies only to executory contracts, and not to those which have been executed and performed completely on both sides; in such cases the 'rights, duties, and obligations of the parties are entirely unaffected by the statute, or at least the contract is binding to the extent that it has been executed.”
The transactions here involved extended over a period of years of service of which appellant had the benefit, and either by contract or common consent the Toynton-Browii Company retained the earned commissions. The various transactions were fully executed. Appellant, having come into a court of equity, is asserting a claim that is void of equity in so far as' he was denied relief by the trial court. Out of the funds involved in this litigation appellant was decreed by the lower court to be entitled to $186.04, there being no controversy as to that amount. The balance of such funds was decreed to belong to the receiver of Toynton-Brown Company. The decree of the trial court is affirmed, with costs to appellee.
Carr, C. J., and Butzel,. Bushnell, Sharpe, Boyles, Reid,- and Dethmers, JJ., concurred. | [
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Dethmers, J.
In 1938 Burleigh. Bandall was the owner of a parcel of land 100 feet in width, the west 75 feet of which are the subject matter of this litigation. During the pendency of a suit which ultimately resulted in entry of a judgment against him for approximately $10,000 he conveyed the entire parcel to his stepson and wife, the defendants Duncan; they later conveyed to defendant Helen E. Kraker, who thereafter became Bandall’s wife. :The judgment creditors levied on the property qnd filed a creditors’ hill claiming that all of said conveyances, apparently made without consideration, were in fraud' of creditors.
The Duncans, while they held title, granted to plaintiffs a lease for a term of .years, covering the west 75 feet of the premises for use as a produce market. The lease required plaintiffs to erect a building thereon for such purpose, which, at the end of the term., would belong to the lessors. Also contained in the lease was the following provision:
“That in the event the land is to be sold, the tenant will he given first preference and allowed to purchase said land if the parties can agree on the price. ”
Plaintiffs, went into possession, constructed the building at a cost of about $3,000, have paid the rent as due and continue in possession, operating their business thereon.
With the entire 400-foot parcel subject to the $10,000 levy and about to he lost for unpaid taxes amounting to almost $5,000, defendant Helen E. Bandall sold it to the defendants Powers for $15,000, using the proceeds to pay said judgment and taxes. She made the sale without giving plaintiffs the first preference and allowing them to purcba.se as pro vided in the lease. Plaintiffs brought this suit for specific performance.
After plaintiffs had discontinued as to the defendants Duncan the trial court heard the matter, held that the option clause constituted a covenant running with the land so as to bind defendant Helen E. Randall and defendants Powers, but dismissed the bill on the grounds that, first, the covenant was too vague and indefinite to be specifically enforced because it fixed no price, and, second, that the condition of the option “in the event the land is to be sold” never occurred because Helen E. Randall had never desired to sell the west 75 feet alone, but instead desired to sell the entire parcel in order to be able to realize the $15,000 required to pay the judgment and taxes. But the record fails to disclose that Helen E. Randall ever attempted to realize the $15,000 either from a possible sale of the west 75 feet alone or by separate sales of the two parcels. Never did she afford the plaintiffs an opportunity to buy either the west 75 feet or the entire 100 feet for $15,000 or for any other figure whatsoever. She proceeded to sell to others in utter disregard of the plaintiffs and their rights under the option. Be that as it may, the fact remains that the 75 feet were sold and consequently the condition of the option “in the event the land is to be sold” did occur. -As for the objection that so-called “preference” or “first refusal” option clauses, which leave price to the future agreement of the parties, are void under the statute of frauds and unenforceable for vagueness, such objection is met when the optionor fixes a price at which he is willing to sell. The option, if adequate in other respects, thereupon becomes a definite offer, which, when accepted by the optionee, ripens into a mutually binding contract, specifically enforceable. Garelik v. Rennard, 116 Misc. 352 (190 N. Y. Supp. 371); Jurgensen v. Morris, 194 App. Div. 92 (185 N. Y. Supp. 386); R. F. Robinson Co. v. Drew, 83 N. H. 459 (144 Atl. 67); Parker v. Murphy, 152 Va. 173 (146 S. E. 254). While the case turns on a different question, adherence to this view is also expressed by this Court in Nur-Way Service Stations, Inc., v. Vandenberg Bros. Oil Co., 283 Mich. 551.
Defendants contend that specific performance is not available to plaintiffs here because the option clause created no mutuality of obligation. This contention is answered by Mr. Justice Wiest,. speaking for the Court, in the case of Tromley v. Lange, 236 Mich. 240, 241, as follows:
“It must be kept in mind that specific performance is of a bilateral contract arising out of acceptance of an option. ’ ’
In Agar v. Streeter, 183 Mich. 600, 602 (L. R. A. 1915 D, 196, Ann. Cas. 1916E, 518), this Court said:
“The tender of the money within the time limited was sufficient to make the contract otherwise evidenced by the option mutual and binding upon both parties. ’ ’
And to the same effect the following:
“While an offer to sell property, the acceptance of which is optional with the vendee, is not binding upon the vendor until accepted, its acceptance before withdrawal makes a complete and mutual contract, capable of enforcement.” Wilcox v. Cline (syllabus), 70 Mich. 517. .
Defendants insist, however, that there is no mutuality here because plaintiffs never made a tender nor accepted the offer contained in the option. But such acceptance by plaintiffs was made impossible by the defendants. Defendant Randall sold to the defendants Powers without-notice to plaintiffs and sold the property covered by the option together with the adjacent parcel for one stipulated price so that plaintiffs, even now, cannot know what amount to tender for the parcel covered by their option. Under like circumstances the supreme court of California has held that it is competent for the court to fix the option price, afford the optionee an opportunity to accept and thereupon specifically enforce the resulting contract. Wilson v. Brown, 5 Cal. (2d) 425 (55 Pac. [2d] 485); Bewick v. Mechem, 26 Cal. (2d) 92 (156 Pac. [2d] 757, 157 A. L. R. 1277). In the latter case the court said:
‘ ‘ A party who prevents fulfillment of a condition of his own obligation commits a breach of- contract * * * and cannot rely on such condition to defeat his liability.”
The terms of the lease imposed upon Helen E. Randall a duty, before selling to the defendants Powers, to fix a specific sum as the amount at which she was willing to sell the premises in question and to afford the plaintiffs an opportunity to buy the same at such figure. Her failure to do so constituted a breach of contract, making acceptance of the option by plaintiffs impossible. This situation, resulting from her own breach, may not be relied upon as a defense to plaintiffs’ suit.
Defendant Randall must be deemed to have sold the 75-foot parcel for a sum bearing such ratio to $15,000 as the value of said parcel bears to the value of the entire 100-foot parcel. Plaintiffs are entitled to purchase the 75 feet for such figure, if they so desire.
The case is therefore reversed and remanded to the trial court for a determination of the propor tionate values of the two parcels and to give plaintiffs an opportunity, within such reasonable time thereafter as may he fixed hy the trial court, to tender and pay into court a sum bearing such ratio to $15,000 as the value of the 75-foot strip is found to hear to the value of the 100-foot parcel. Upon such tender and payment by plaintiffs, the option becomes a mutually binding contract for the enforcement of which a decree will enter as prayed hy plaintiffs. Costs to plaintiffs.
Carr, C. J., and Butzel, Sharpe, Reid, and North, JJ., concurred with Dethmers, J. Bushnell, and Boyles, JJ., concurred in the result.
See 3 Comp. Laws 1929, §13413 (Stat. Ann. § 26.908). — Ru-PORTER, | [
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Sharpe, J.
This is a suit to restrain defendants from operating a street carnival on certain property leased by defendant Vie Horowitz in Dearborn township, Wayne county, Michigan.
' In September, 1944, defendant Vic Horowitz leased a parcel of vacant property on the southeast corner of Outer Drive and West Warren avenue from defendants Clarence J. Daly and Alice Daly, liis wife, to be used and occupied for an amusement park. The lease was executed September 1, 1944, and was to run for a period of 10 years, however, a prior lease existed upon the premises effective until May 1, 1945. Rental-on defendants’ lease did not begin until May 1,1945. ‘
On March 6,1945, the township board of the township of Dearborn enacted a zoning ordinance effective April 6, 1945, by which the territory in the township was divided into business, residential and agricultural districts. The property in question is in the agricultural district.
Article 10 of the ordinance, relating to the agricultural district, prescribes various uses and provides :
“[Sec. 10.01. Uses permitted # * *] (f) Carnivals, outdoor circuses or migratory amusement enterprises subject to the provisions and requirements of article 14, § .05 (i) of the board of appeals.”
Article 14, § .05, reads as follows:
“Jurisdiction. The board of appeals may, in specific cases, after due notice and hearing and sub ject to appropriate conditions and safeguards, determine and vary the application of the use, heiglit and area district regulations herein established in harmony with their general purposes and intent, as follows: * * *
‘ ‘ (i) Permit a carnival, outdoor circus or migratory amusement enterprise in an agricultural district, provided that attached to the application for a permit shall be a letter of consent from the owner or owners of the property to be used for such purpose; also an affidavit that such location is a minimum distance of 1,500 feet from any existing residential building and a minimum distance of 50 feet from the street or highway right of way.”
Section 3.07 of the ordinance provides:
“The lawful use of premises existing at the time of the adoption of this ordinance may be continued, although such use does not conform with the provisions hereof, and such uses may be extended throughout the building, provided no structural alterations or changes are made therein except those required by law or ordinance or such as may be required for safety, or such as may be necessary to secure or insure the continued advantageous use of the building during its natural life. * * *
“Wherever a nonconforming use of a building or land has been- changed to a more restricted use or to a conforming use, such use shall not thereafter be changed back to a less restricted use. .
“If a nonconforming use of a building or land is discontinued for a continuous period of 1 year, any subsequent use of such building or of the land on which the same is situated, shall be in conformity with the regulations specified by this ordinance for zoning districts in which such building and land are located.
“Immediately after the effective date of this zoning ordinance or amendment thereto, the township zoning board shall prepare a complete record of all nonconforming’ uses and occupations of lands, buildings and structures, including tents and trailer coaches, existing at the time of such ordinance or amendment. Such record shall contain the names and addresses of the owners of such nonconforming use and of any occupant, other than the owner, the legal description of the land, and the nature and extent of the use. The township board shall prescribe the procedure for making any necessary corrections, and copies of the corrected record, when approved by the township board, shall be filed in the offices of the township clerk, and the register of deeds, which record shall constitute prima facie evidence of the number, character and extent of the nonconformance at the time this ordinance or an amendment thereto becomes effective. The record of nonconformance shall be reviewed annually as the township,board shall prescribe.”
It is undisputed that defendant Horowitz failed to apply for and obtain a permit to operate his carnival in Dearborn township; and that there are residential buildings within 700 to 1,500 feet of its location. It is also undisputed that a carnival was operated upon the same premises during the summers of 1942, 1943, and 1944 and by defendants during the summer of 1945. On May 25, 1945, plaintiffs filed their bill of complaint seeking to halt the operation of a carnival upon the premises, alleging that the operation constituted a public and private nuisance. i
The cause came on for trial and the trial judge entered an order enjoining defendants from using the premises for the purpose of operating a carnival. In an opinion, the trial judge made the following finding of facts:
“However, it is true under the evidence in this case, that, prior to the time that this carnival was operating, the plaintiffs were not bothered with a great deal of parking along Outer Drive extending say four blocks with this residential section. They were not bothered by people going into the trailer camp and using their facilities. That parking and great number of people using the trailer camp facilities can be traced directly to the carnival grounds.
“While parking alone may not be considered a nuisance, the throwing of bottles and contraceptives onto the lawns of the parties along the street is a nuisance. It is a nuisance to have people from the carnival park do these things; and it is a nuisance for' the people from the carnival park to go into the trailer camp and use the toilet facilities. That can be traced directly to the operating of the carnival.
“Furthermore, we have certain other things that come into the classification ■ of nuisance. There is no question but what gambling was permitted upon the premises — open gambling; games of chance which attracted small children and teen-age children. There is testimony hqre that small children took money from their homes and spent it upon the carnival grounds. The operation of games of chance openly in this neighborhood constituted a nuisance to which the people living in that neighborhood had a right to object. There is testimony that bright lights could be seen by residents at. 750 feet to 1,750 feet away. Mr. Perfetti testified that the machinery was in such condition that it made noise. Mr. Scheer also testified how it would die down, then increasé in volume, and that would be a continuous repeated operation, and that the noise from the machinery kept the residents from going to sleep-and on a number of occasions awakened them; that the noise of the patrons who used the ferris wheel could be distinctly heard 1,750 feet away.”
Defendants do not challenge the validity of the ordinance, but urge, that the carnival was not being operated in violation, of the zoning ordinance; that at the time of the adoption of the ordinance the premises were lawfully used for the operation of a carnival; and that section 3.07 of the ordinance permits the continued use of the premises for carnival purposes.
In our opinion the operation of a carnival on the premises in question prior to the adoption of the ordinance in question was a lawful use of the premises. Section 3.07 of the ordinance permitted the continued use of such premises for carnival purposes. This section is directed to the use of the land and buildings at the time of the adoption of the ordinance and not to the persons occupying the same at that time. The ordinance does not require a permit for nonconforming operations. We do not think that actual operation or visible use is necessary on the effective date of the ordinance in order to bring such operations within section 3.07. As a rule outdoor carnivals are seasonal in nature and are" only operated during periods of spring- and summer months.
In Adams v. Kalamazoo Ice & Fuel Co., 245 Mich. 261, on August 11, 1924, defendant purchased a lot in a residential section of the city of Kalamazoo and on January 5, 1925, placed thereon a small building for use as an ice service station and commenced the use -of it on June 5," 1925. On January 26, 1925, the city of Kalamazoo adopted a zoning ordinance, designating the locality where plaintiff’s lots were located as a residence district, excluding entry of business like defendant’s, but saved existing- nonconforming uses from its operation. We there said:
“Defendant’s use of the station is seasonal. When defendant became owner of the premises, removed the old building, fitted the ground for and placed its ice station building thereon and only awaited the ice demand season to serve the public, it occupied the premises in'fact and for use in selling ice, and such was a lawful use of the premises existing at the time of the adoption of the zoning ordinance and nonconforming use expressly excepted from its provisions. Where an occupational use of the premises is seasonal, and the means for use are installed, and the opening of the season only awaited, there exists lawful occupational use of the same nature as periods of inactivity between seasons.”
In our opinion the use of the premises for carnival purposes was seasonal. There was no change or discontinuance of use of the land by either the owner or lessee. Such use for carnival purposes without a permit was lawful under section 3.07 of the ordinance. Defendant Horowitz having a lease of the premises may operate a carnival.
The trial court found that the method of operation of the carnival constituted a private nuisance. We have examined the record and conclude that the finding of facts noted in the trial' court’s opinion is supported by evidence introduced in this case; and that defendants have been guilty of maintaining a private nuisance against the rights of plaintiffs. It is within the jurisdiction of a court of equity to enjoin such a nuisance upon the complaint of private citizens who have suffered injury by the maintenance of such nuisance, see MacKenzie v. Frank M. Pauli Co., 207 Mich. 456 (6 A. L. R. 1305).
In 39 Am. Jur. p. 346, it is said:
“At one time amusements were generally deemed to be nuisances in the eyes of the law, but at present the courts are astute to guard and protect the rights of all persons to assemble for purposes of health, recreation, and amusement. However, while amuse ments, shows, exhibitions, and public performances are not nuisances per se, almost any of the common forms of amusement may constitute a nuisance when not conducted with decency, decorum, and circumspection^ or because of the noise or disturbance resulting from their operation.
“A public exhibition of any kind that tends to the corruption of morals, or to a disturbance of the peace or of the general good order and welfare of society, is a public nuisance. A merry-go-round or roller coaster may be a nuisance, on account of the noise resulting from its operation,”
The decree of the trial court enjoins defendant Horowitz from operating the carnival and defendants Daly from leasing the premises to him for carnival purposes. As a result defendant Horowitz’ business is destroyed upon those premises. We are concerned with the protection of the plaintiffs’ rights as well as the protection of a lawful business. There are certain objectionable features connected with defendant’s business which constitute a nuisance and can be discontinued without irreparable injury to defendants.
Mr. Horowitz has it within his power to prohibit gambling and other games of chance, as well as the use of intoxicating liquors upon the premises. The premises can be kept in a sanitary condition by installing toilets and thereby eliminating trespassing by patrons of the carnival upon the property occupied by plaintiffs in the trailer camp across the street from the premises where the carnival is operating. Much of the noise of the machinery in operation can be eliminated. Defendants do not have it within their control to regulate the parking of cars on the highway. This is a subject for official regulation by the township authorities.
The injunction heretofore granted will continue until such time as defendants offer satisfactory proof to the trial court that the objectionable features herein mentioned have been eliminated.
A modified decree will be entered in this Court in accordance with this opinion and the cause will be 'remanded to the circuit court in chancery of Wayne county with jurisdiction to hear and determine any further proceedings in this cause. Plaintiffs may recover costs.
Carr, C. J., and Butzel, Btjshnell, Boyles, Reid, North, aiid Dethmers, JJ., concurred. | [
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D. C. Riley, J.
Defendant Ghazi Dean, raising two issues, appeals his jury-based conviction on a charge of delivering phencyclidine, a controlled substance, under MCLA 335.341(l)(b), 335.318(l)(b); MSA 18.1070(41)(l)(b), 18.1070(18)(l)(b).
I
At the outset, defendant challenges the constitutionality of MCLA 335.356(1); MSA 18.1070(56X1), arguing that the section impermissibly shifts to defendant the burden of proving that no exception exists which would absolve him of criminal culpability. MCLA 335.356(1); MSA 18.1070(56)(1) provides:
"Sec. 56. (1) It is not necessary for the state to negate any exemption or exception in this act in any complaint, information, indictment or other pleading or in any trial, hearing or other proceeding under this act. The burden of proof of any exemption or exception is upon the person claiming it.”
To appreciate the legislative intendment behind § 56, reference must be had to another provision in the Controlled Substances Act which empowers the administrator (i.e., the State Board of Pharmacy, see MCLA 335.303[2]; MSA 18.1070[3] [2]) to except certain substances from the sanctions of the act:
"(2) The administrator may except by rule any compound, mixture or preparation containing any stimulant or depressant substance listed in subdivisions (a) and (b) from the application of all or any part of this act if the compound, mixture or preparation contains 1 or more active medicinal ingredients not having a stimulant or depressant effect on the central nervous system, and if the admixtures are included therein in combinations, quantity, proportion or concentration that vitiate the potential for abuse of the substances which have a stimulant or depressant effect on the central nervous system.” MCLA 335.318(2); MSA 18.1070(18X2).
Similarly, see MCLA 335.320(2); MSA 18.1070(20X2). See also, MCLA 335.331(1); MSA 18.1070(31X1).
At the close of the prosecution’s case in chief, defendant moved for a directed verdict contending that the phencyclidine defendant concededly transferred to an undercover officer "might be excepted” from the act, and if so, the statute places an inordinate burden on defendant to prove by complex chemical analysis that the seized drug does not have a potentially abusive, depressant effect on the central nervous system. After surveying the Michigan Administrative Code from the date of the act’s promulgation to the present, the court "ruled that the existence of the exception as a matter of law can be determined and a search by this Court indicates that there is no exception and therefore there is no burden upon the People to prove anything other than the existence of PCP [phencyclidine]”.
Earlier, however, the trial judge indicated that if an exception did indeed exist, then he "might be inclined with [defense] Counsel that chemical analysis at this point would be something that might place an undue burden on the defendant and I would likely order upon request chemical analysis for those purposes”, that is, "to see what medicinal ingredients, if any, were contained within the PCP [phencyclidine] to determine whether that substance falls within the exception”.
Our independent perusal of the Michigan Administrative Code discloses that the lower court erred in concluding that no exception exists. Rule 338.3129, 1973 AACS provides:
"Rule 29. A compound, mixture or preparation containing a depressant or stimulant substance or of similar quantitive composition shown in federal regulations as an excepted compound or which is the same except that it contains a lesser quantity of a controlled substance or other substances which do not have a stimulant, depressant or hallucinogenic effect, and which is restricted by law to dispensing on prescription is excepted from sections 14, 16, 18, 20 and 22 of the [Controlled Substances Act].”
Evidently, the administrator has ruled that any stimulative or depressive compound, mixture or preparation (or quantitatively similar concoction), which has been excepted by Federal regulations and which is required to be dispensed by prescription, is without the punitive scope of the Controlled Substances Act. Hence, under the language of § 56(1), supra, a defendant claiming the Rule-29 exception must show at a minimum that a Federal exception exists and that the chemical in question can be obtained solely by prescription. If these threshhold requirements are met, a defendant might still have to prove by chemical testing that the instant concoction is the same as a Federally excepted compound but "that it contains a lesser quantity of a controlled substance or other sub stances which do not have a stimulant, depressant or hallucinogenic effect”. Rule 29, supra. Thus, a quantitative analysis may still be required, beyond determining the foregoing threshhold matters.
The question then becomes whether the Legislature may constitutionally place the onus probandi on defendant to establish an applicable exception. It should be noted that cases interpreting the prior narcotics law, see, e.g., People v Moore, 30 Mich App 451, 453; 186 NW2d 788 (1971), are not particularly instructive since they rely chiefly on a dissimilar statute:
"Sec. 48. No indictment for any offense created or defined by statute shall be deemed objectionable for the reason that it fails to negative any exception, excuse or proviso contained in the statute creating or defining the offense. The fact that the charge is made shall be considered as an allegation that no legal excuse for the doing of the act exists in the particular case.” MCLA 767.48; MSA 28.988.
Rather, a progression of three Michigan cases on this issue, People v Rios, 386 Mich 172; 191 NW2d 297 (1971), People v Henderson 391 Mich 612; 218 NW2d 2 (1974), and People v Dempster, 396 Mich 700; 242 NW2d 381 (1976), serves as the guiding light for our decision. Rios, supra, was a narcotics prosecution under a since repealed law, see MCLA 335.366(c); MSA 18.1070(66)(c), which held that under MCLA 767.48; MSA 28.988, the people need not plead defendant’s lack of a drug license to indict defendant. The Court emphasized, however, that the statute does not shift to defendant the burden of proving his licensure; in fact, the question "whether the legislature may by appropriate legislation place the burden of the proof on the defendant to disprove an element of a crime” was intentionally avoided. 386 Mich at 174.
This issue was addressed initially by Henderson, and more definitively, by Dempster, supra. In Henderson, the defendant, charged with carrying a pistol in a motor vehicle, MCLA 750.227; MSA 28.424, argued that the people failed below to prove defendant’s lack of a gun permit, which defendant maintained was an essential element of the crime. Plaintiff in turn asserted that MCLA 776.20; MSA 28.1274(1) absolves the state of proving non-licensure. MCLA 776.20; MSA 28.1274(1), an analogue to MCLA 767.48; MSA 28.988, provides:
"Sec. 20. In any prosecution for a violation of any acts of the state relative to use, licensing and possession of pistols or firearms, the burden of establishing any exception, excuse, proviso or exemption contained in any such act shall be upon the defendant but this does not shift the burden of proof for the violation.”
Despite prior cases holding lack of license to be an element of the crime, the Court, speaking through now Chief Justice T. G. Kavanagh, stated:
"[W]e hold that upon a showing that a defendant has carried a pistol in a vehicle operated or occupied by him, prima facie case of violation of the statute has been made out. Upon the establishment of such a prima facie case, the defendant has the burden of injecting the issue of license by offering some proof — not necessarily by oficial record — that he has been so licensed. The people thereupon are obliged to establish the contrary beyond a reasonable doubt.
"We read MCLA 776.20; MSA 28.1274(1), supra, not as absolving the state from proving one element of a crime, for to do so would vitiate the presumption of innocence. Rather, we read this statute as an appropriate legislative expression that lack of a license is not an element of the offense and we are thereby prompted to reconsider our construction of the prohibiting language of MCLA 750.227; MSA 28.424, supra.” 391 Mich at 616-617. (Emphasis added.)
Recently, in Dempster, supra, the Court was asked whether MCLA 451.802(d); MSA 19.776(402)(d) of the Uniform Securities Act requires defendants "to bear an unconstitutional burden of proving innocence”. 396 Mich at 711. The Uniform Securities Act, using language almost identical to § 56 of the Controlled Substances Act, provides:
"(d) In any proceeding under this act, the burden of proving an exemption or an exception from a definition is upon the person claiming it.” MCLA 451.802(d); MSA 19.776(402)(d).
The Court in Dempster, speaking once again through Chief Justice T. G. Kavanagh, found no constitutional infirmity; rather it likened the duty to show an exception to that of an affirmative defense. Ultimately, the Court held at 713-714:
"This Uniform Securities Act provision, read in light of People v Henderson, supra, must be interpreted to mean that once the state establishes a prima facie case of statutory violation, the burden of going forward, i.e., of injecting some competent evidence of the exempt status of the securities, shifts to the defendant. However, once the defendant properly injects the issue, the state is obliged to establish the contrary beyond a reasonable doubt.”
Moreover, the Court brushed aside differences in language between the concealed weapons statute and the Uniform Securities Act, and in a footnote illustrated the intended scope of a provision permitting an exemptive defense:
"We are cognizant of the fact that the concealed weapons statute speaks of the 'burden of establishing’ the license, and states that this does not shift the 'burden of proof for the violation’. (Footnote omitted.) While that language might be preferable to that of the instant statute, the principle is not different.
In light of the teachings of Rios, Henderson, and principally Dempster, supra, we hold that once the people show a prima facie violation of the Controlled Substances Act, MCLA 335.356(1); MSA 18.1070(56)(1) then operates to impose on defendant "the burden of going forward, i.e., of injecting some competent evidence of the exempt status,” of the drug. Dempster, supra.
Since in the present case the lower court mistakenly forestalled whatever effort defendant might have made to show an applicable exception, we believe a remand for an evidentiary hearing is warranted. If on remand defendant can produce some competent evidence showing (1) that Federal regulations have excepted phencyclidine (or its chemical equivalent) and (2) that dispensing the excepted compound is required under law to be by prescription, then defendant shall be retried, or, at the prosecution’s option, dismissed. Should a retrial occur, defendant will have the same burden of production as above, and once that burden is met, the plaintiff, whether by quantitative analysis or otherwise, shall have the onus of proving beyond reasonable doubt that the exception should not apply.
If, however, defendant on remand is unable to proffer the requisite evidence, then his conviction shall stand affirmed.
We have chosen the vehicle of a remand for a hearing over the reversal and discharge approach opted for in Dempster, supra, because, unlike the somewhat amorphous term "commercial paper” analyzed in Dempster, phencyclidine is a known quantity readily recognizable by chemical testing. Hence, no ambiguity can surround its use, possession or manufacture which would deprive one of notice that such activity is clearly proscribed.
II
Defendant next assails the lower court’s decision, over both the prosecution’s and defendant’s objections, to submit the issue of entrapment to the jury. The dispute centers not on whether this was error (for it surely was ), but rather, on what remedy will best cure the error. Defendant insists that a new trial is mandated, whereas the people urge us to grant merely an evidentiary hearing. Both routes have precedential support. Compare People v Cushman, 65 Mich App 161; 237 NW2d 228 (1975), with People v Keefe, 69 Mich App 431; 245 NW2d 78 (1976).
We choose to follow People v Keefe, because of its factual similarity to the instant case. Accordingly, the defendant will be permitted an evidentiary hearing on remand where he will bear the burden of proving entrapment by a preponderance of the evidence. See People v Stanley, 68 Mich App 559; 243 NW2d 684 (1976).
In sum, then, the purpose of the remand is twofold. Irrespective of the order in which defendant chooses to raise the questions, he must either prove he was entrapped or else come forward with evidence showing that phencyclidine is an excepted compound. If the former proves fruitful, he shall be set free; if the latter, he shall, at the people’s option, be retried.
Remanded for proceedings consonant with this opinion.
Allen, J., concurred.
See 1973 AACS, R 338.3101(1).
See People v Gould, 384 Mich 71; 179 NW2d 617 (1970), People v Schrader, 10 Mich App 211; 159 NW2d 147 (1968).
"8 Probably the clearest statement of the principle intended by such a proviso is found in the Drug Abuse Prevention & Control Act, 84 Stat 1279 (1970), 21 USCA 885(a)(1):
" 'It shall not be necessary for the United States to negative any exemption or exception set forth in this title [subchapter] in any complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this title [subchapter], and the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person claiming its benefit.’ ” 396 Mich at 712-713. (Emphasis added.)
See People v Sheline, 64 Mich App 193; 235 NW2d 177 (1975), lv granted, 395 Mich 817 (1975), People v Fraker, 63 Mich App 29; 233 NW2d 878 (1975), People v Zeegers, 61 Mich App 546; 233 NW2d 76 (1975). | [
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Per Curiam.
The appellant was convicted by a jury of two counts of felonious assault, MCLA 750.82; MSA 28.277, and aiding and abetting in the commission of a crime against nature, MCLA 750.158; MSA 28.355. He appeals as of right.
The complainant became involved with Patricia Welch. He eventually purchased an automobile which he permitted her to use exclusively. Subsequently, she was involved in an automobile collision. The complainant became apprehensive about her retaining the car. He decided that after the car was repaired, he would resell it.
Ms. Welch attempted to pick up the car after it had been repaired at a dealership. She was informed that the complainant had placed a "hold” on the automobile.
Ms. Welsh called the complainant in an effort to recover the car. After the attempt appeared fruitless, Ms. Welch suggested the complainant come over to her residence to discuss the situation.
Upon entering Ms. Welch’s residence, the complainant was approached by Kenneth Wojnicz, a codefendant. Wojnicz was armed with a gun and pointed it at the complainant. The complainant was instructed to kneel, and his hands were tied behind his back. When he attempted to rise, he was struck on the head with the gun by Mr. Wojnicz.
Wojnicz ordered the complainant to remove his clothes. Ms. Welch and Mr. Wojnicz left the room with the complainant’s clothes. The complainant heard them going through his pockets and counting his money, which was approximately $215.
A few minutes later three men, one of whom was the appellant, joined Ms. Welch and Mr. Wojnicz at the scene. The appellant informed the complainant that "nobody treats his old lady that way”. The complainant was repeatedly kicked and beaten by all four men.
One of the individuals brought in battery booster cables from the complainant’s automobile and attached one of the clamps to his penis. Someone threatened to attach the other end of the booster cable to "something that would give [the complainant] a real shock”. The clamp on the. battery booster cable was removed a few minutes later.
The complainant was then dragged down to the basement by all four men. He was threatened that his parents and girl friend were also going to be brought there. They requested the name and address of the complainant’s girl friend. He responded with a false name and address. Where upon, three of the men left leaving the complainant with Wojnicz.
Subsequently, he was approached by the appellant who held a gun on the complainant and led him upstairs to the bathroom. The appellant ordered the complainant to sit in the bath tub. He hit the complainant a number of times. Then the appellant and Mr. Wojnicz urinated on the complainant.
The appellant returned to the bathroom a short time later with a gun and fired at the complainant. The bullet hit the wall above the complainant’s head. The appellant then gave the gun to Wojnicz, who also fired at the complainant. The complainant testified that the shots were 5 to 12 inches above his head.
Later, the appellant returned with a small pair of shears and threatened to cut off the complainant’s penis.
Finally, the appellant returned with Ms. Welch’s German shepherd. The appellant unsuccessfully attempted to get the dog to attack the complainant. The appellant, while holding a gun on the complainant, ordered him to "suck off the dog”. The complainant lowered his mouth to the dog’s genitals. From that point on, the record is not ^entirely clear as to what occurred. However, the evidence appears to show that complainant’s mouth was directly touching the dog’s penis.
The first issue raised by the appellant is that the coerced act with the dog is outside the purview of MCLA 750.158; MSA 28.355. Appellant relies upon People v Schmitt, 275 Mich 575; 267 NW 741 (1936), and People v Dexter, 6 Mich App 247; 148 NW2d 915 (1967), for the contention that the statute merely prohibits common-law sodomy, which is only copulation per anum.
We are of the opinion that the cases cited by the appellant are inapplicable. They deal only with situations involving acts between human beings.
MCLA 750.158; MSA 28.355 provides:
"Any person who shall commit the abominable and detestable crime against nature either with mankind or with any animal shall be guilty of a felony.”
We have been unable to discover any case law in this state dealing with sexual acts between human beings and animals, consequently we may look to other states and sources for guidance.
At common law a "crime against nature” embraced both sodomy and bestiality. Ausman v Veal, 10 Ind 355, 356; 1 Am D 331 (1858), State v Johnson, 44 Utah 18, 21-22; 137 P 632, 633 (1913), State v Poole, 59 Ariz 44, 47; 122 P2d 415, 416 (1942). In Sanders v State, 216 Ind 663, 664-665; 25 NE2d 995 (1940), the Indiana Supreme Court construed a provision similar to our statute. The Court said:
"The statute in this state defines the crime as 'the abominable and detestable crime against nature with mankind or beast.’ This court has held in common with the courts of other jurisdictions under similar statutes that the statutory definition includes both common-law sodomy and acts of a bestial character whereby degraded and perverted sexual desires are sought to be gratified contrary to nature.” (Emphasis supplied.)
There is some doubt as to whether bestiality and sodomy meant the same thing at common law. Miller, Criminal Law, § 141, p 437. This is due to the fact that commentators failed to describe these distasteful acts, but merely characterized them as sodomy or crimes against nature. In any event it has developed, although possibly incorrectly, that sodomy includes acts of bestiality. 2 Wharton’s Criminal Law & Procedure § 756, p 578; Miller, Criminal Law, supra.
Acts of bestiality have been found to occur in a broader range of conduct than that of common-law sodomy. See People v Smith, 117 Cal App 2d 698; 256 P2d 586 (1953), State v Tarrant, 83 Ohio App 199; 80 NE2d 509 (1948), Ausman v Veal, supra. In other words an act of bestiality is not strictly limited to copulation per anum.
We have been referred to numerous definitions of bestiality, but adopt the following as the clearest and most concise. An act of bestiality is a sexual connection between a man or a woman and an animal. Clark & Marshall, Crimes (6th ed), § 11.07, p 689.
We hold that acts of bestiality are expressly prohibited by MCLA 750.158; MSA 28.355. Bestiality is encompassed within the meaning of a "crime against nature” and "sodomy”. An act of bestiality is not limited to copulation per anum, but includes an act of sexual connection between a human being and an animal, such as that alleged to have occurred here.
In a prosecution for criminal activity in violation of MCLA 750.158; MSA 28.355, "sexual penetration, however slight” is required. MCLA 750.159; MSA 28.356. We note that the trial judge did instruct the jury on both sodomy and the attempt to commit sodomy. However no instruction was given as to penetration, which is an essential element of the completed offense. A re mand for a new trial is required where the charge omits an essential element. People v Liggett, 378 Mich 706, 714; 148 NW2d 784 (1967).
The appellant further claims that the trial court erred in refusing to dismiss the charge of assault with intent to commit murder at the close of appellee’s proofs. Appellant argues the evidence does not disclose an intent to kill since the shots were fired 5 to 12 inches above the complainant’s head. There was more than sufficient evidence to support the inference that the appellant intended to kill the complainant as he assaulted him. See People v Simons, 42 Mich App 400; 202 NW2d 575 (1972), see also People v Johnson, 54 Mich App 303; 220 NW2d 705 (1974), lv den, 392 Mich 800 (1974), People v Parker, 8 Mich App 414; 154 NW2d 615 (1967).
The next issue raised by the appellant is that the trial judge erroneously admitted into evidence the battery booster cables and a .45-caliber pistol. It appears that they were introduced by the appellee for probative value as to the entire series of events, as well as to corroborate the testimony of the complainant. Appellant’s counsel was specifically asked if there were any objections to the admission of these items. Appellant’s counsel made no objection, but merely requested that the court instruct the jury that the items were not to be considered evidence against the appellant. Such an instruction was given. Under these circumstances the error is waived upon appeal. People v White, 25 Mich App 176, 178; 181 NW2d 56 (1970), lv den, 384 Mich 760 (1970), People v Allar, 19 Mich App 675, 677; 173 NW2d 261 (1969), lv den, 383 Mich 758 (1970).
Appellant’s final argument is that in conducting a mid-trial voir dire of the jury, the court failed to ascertain whether the incident, giving rise to voir dire, prejudiced the jurors’ ability to render a fair and impartial verdict. There was no objection at trial, and the error is untimely raised for the first time on appeal. People v Costea, 19 Mich App 166, 168; 172 NW2d 488 (1969), lv den, 383 Mich 794 (1970).
The conviction for aiding and abetting a crime against nature is reversed and remanded for a new trial. The remaining convictions are affirmed.
MCLA 750.159; MSA 28.356:
"In any prosecution for sodomy, it shall not be necessary to prove emission, and any sexual penetration, however slight, shall be deemed sufficient to complete the crime specified in the next preceeding section.” (Emphasis supplied.)
This apparently was not the gun brandished by the appellant. | [
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J. H. Gillis, P. J.
Plaintiff Thomas Beauchamp was employed by Anklam Construction Company (hereinafter referred to as Anklam) as a laborer and pipelayer. Anklam had entered into a contract with Saginaw Township (the defendant in this case), a municipal corporation, to construct a sewer system in the undeveloped northeast section of the township. On the morning of August 28, 1973, plaintiff was engaged in laying sewer tiles in a trench being dug by an excavating crane operated by another employee of Anklam. The crane operator, in lowering the excavating bucket into the trench, accidentally caused the bucket to strike plaintiff in the head, neck and shoulder area. As a result of this blow, plaintiff was severely injured and is now a quadriplegic, permanently paralyzed from the neck down.
On August 28, 1975, plaintiffs filed a complaint against defendant municipality alleging that defendant had maintained control over the construction of the sewer system, that the construction was inherently dangerous, and that defendant negligently failed to provide plaintiff with a safe place to work, failed to require safe working procedures and equipment, and failed to warn plaintiff of the danger inherent in the work. Defendant filed a motion for accelerated and/or summary judgment claiming that by virtue of Michigan’s governmental immunity statute, MCLA 691.1401 et seq.; MSA 3.996(101) et seq., it is immune from liability. The trial court granted defendant’s motion. Plaintiff appeals as of right. He argues that defendant is not immune.
MCLA 691.1407; MSA 3.996(107) provides:
"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.”
Recently, the Michigan Supreme Court has had occasion to apply and interpret the above statute. As of this date, we have been presented with three of these decisions. These three cases contain within them 11 separate opinions. Justice Williams has summarized the general consensus to be that "the test of whether a governmental agency can claim immunity under the statute is whether the specific activity alleged against the governmental defendant falls within 'the exercise or discharge of a governmental function’ Galli v Kirkeby, 398 Mich 527, 536; 248 NW2d 149 (1976), opinion by Williams, J. Our inquiry thus becomes, is the construction of a sewer by a municipal corporation activity in discharge of a governmental function?
The majority opinion in Thomas v Department of State Highways, 398 Mich 1; 247 NW2d 530 (1976), generally defined "governmental function” as:
"a term of art which has been used by the courts of this state to describe those activities of government which due to their public nature should not give rise to liability at common law.” 398 Mich at 9.
In utilizing that definition a majority of our Supreme Court agrees that maintenance and improvement of a highway is a governmental function, Thomas v Department of State Highways, supra, the malicious activity of state hospital employees in discouraging plaintiffs customers from doing business with his newspaper is not activity within the exercise of a governmental function, McCann v Michigan, 398 Mich 65; 247 NW2d 521 (1976), and screening, hiring and supervision of school personnel are governmental functions, Galli v Kirkeby, supra.
We have been instructed that in making determinations of whether a given activity is or is not a governmental function we should analyze the given situations on a case by case basis. Our tools include the available case law, and, when the same is not clear, we are to utilize our "own creative genius” in adapting the case law to resolve the problem at hand. Thomas v Department of State Highways, supra, at 11. Our examination, analysis and resolution follow.
It developed historically that cities operated under one of two personalities. The municipality when acting as an arm of the state possessed a "public” character, but when acting for the concerns of the citizenry of the city it was functioning within its "private” personality. This public versus private analysis was utilized in evaluating questions of municipal tort immunity. If wearing the public hat, the municipal corporation was said to be performing governmentally and was immune from tort liability as was the state. On the other hand, if the activity was for the benefit of the peculiar locality, then the municipal corporation was deemed equivalent to a private corporation. See, eg., Board of Commissioners v Common Council, 28 Mich 228; 15 AR 202 (1873), Barron v Detroit, 94 Mich 601; 54 NW 273 (1893), Gilboy v Detroit, 115 Mich 121; 73 NW 128 (1897). Additionally, the city as an owner of property was regarded as a private concern. People v Hurlbut, 24 Mich 44; 9 AR 103 (1871). It was from this theory that our Supreme Court affirmed a damage award to a plaintiff who had fallen into a sewer ditch being dug on a city street. They stated:
"The sewers of the city, like its works for supplying the city with water, are the private property of the city —they belong to the city. The corporation and its corporators, the citizens, are alone interested in them— the outside public or people of the state at large have no interest in them, as they have in the streets of the city, which are public highways.” Detroit v Corey, 9 Mich 165, 184; 80 AR 78 (1861).
In Ostrander v Lansing, 111 Mich 693; 70 NW 332 (1897), the Court cited Corey and reiterated that sewer construction is a private municipal enterprise rather than a governmental function.
With the advent of extensive "home rule” legislation this public, private dichotomy of municipal tort liability was refined. Cities developed an immunity of their own and were excluded from liability "when the function exercised was for the exclusive benefit of the local public, without private advantage or emolument to the corporation.” Hodgins v Bay City, 156 Mich 687, 692; 121 NW 274 (1909). The focus shifted from a question of the locality of the function and the recipients thereof to a question of the nature of the operation and profit derived therefrom. The cases are confusing; in one situation finding liability due to an incidental profit arising from the activity, Foss v Lansing, 237 Mich 633; 212 NW 952 (1927), while in another situation finding immunity if the profit is incidental to the main purpose of the exercised function, Johnson v Board of County Road Commissioners, 253 Mich 465; 235 NW 221 (1931). Cooperrider, The Court, the Legislature, and Governmental Tort Liability in Michigan, 72 Mich L Rev 187, 229-237 (1973). One could break down the fact situations presented in the available cases, dissect their own factual components, and then determine which analysis better applies to the facts in question in order to reconcile and distinguish the seeming inconsistencies among the precedents. Rather than partake in the painful task of separating, distinguishing, applying, analyzing and reanalyzing, suffice it to say that the present message seems to thrust on the purpose of the engaged-in activity rather than on the result (profit).
" 'The underlying test is whether the act is for the common good of all without the element of special corporate benefit or pecuniary profit. If it is, there is no liability; if it is not, there may be liability. That it may be undertaken voluntarily and not under compulsion of statute is not of consequence.’. Gunther v Cheboygan County Road Commissioners, 225 Mich 619; [196 NW 386 (1923)], Johnson v Ontonagon County Road Commissioners, 253 Mich 465; [235 NW 221 (1931)], Daszkiewicz v Detroit Board of Education, 301 Mich 212; [3 NW2d 71 (1942)].” Martinson v Alpena, 328 Mich 595, 598; 44 NW2d 148 (1950). Cited with approval in Mc-Cann v Michigan, supra, at 79.
It is true that sewers have consistently been grouped on the private side of the public, private dichotomy. Sewers were originally constructed and maintained by the city as a business enterprise, Cooperrider, supra, at 229, and thought of as a strictly local concern with the remainder of the state having no interest at all in their construction or maintenance. We need not discuss at great length the importance of properly maintained sewage systems, nor the disasterous effects on the failure to so provide. Today, sewage systems are recognized as a necessary element for the health of the public in providing for disposal of waste and purification of water. The sewage system of one city, if inadequate, may have tremendous effects on a neighboring city. Detroit v Village of Highland Park, 186 Mich 166; 152 NW 1002 (1915).
" 'The drainage of a city in the interests of the public health * * * is one of the most important purposes for which the police power can be exercised.’ ” Detroit v Village of Highland Park, supra, at 184, citing New Orleans Gaslight Co v Commission, 197 US 453; 25 S Ct 471; 49 L Ed 831 (1905).
It has been held that collection of garbage by a city is a governmental function due to its role in the protection of health. Sommers v Detroit, 284 Mich 67; 278 NW 767 (1938). We cannot distinguish sewers, and find that the construction of sewers as a public health measure is a governmental function.
Plaintiff asserts that although sewer construction may be governmental in scope that in this case the sewers were constructed in an undeveloped area making the benefit not for the good of all but rather specific to defendant in that increased development would increase the tax base of the municipality. Planning and projecting are integral functions of city government. Present needs are constantly changing. It is a wise city planner who examines and analyzes growth and plans accordingly. It is more likely than not that the city will benefit from growth and prosperity, but planning for the accommodation of growth either by building a school, a park, or a sewer can hardly be said to be of special corporate benefit. The benefit is to the inhabitants of the community. The use of foresight does not change a governmental function into a nongovernmental function.
Plaintiff has failed to persuade us that defendant has derived a peculiar benefit from the construction of the sewers here in question.
Affirmed. No costs, a public question being involved.
The original complaint was filed by Thomas Beauchamp and his wife, Betty Beauchamp. Betty Beauchamp claimed damages for loss of consortium and support. Because Betty Beauchamp’s claims do not pertain to the issues presented on this appeal, we will refer to plaintiff in the singular meaning plaintiff Thomas Beauchamp.
Our reading of the most recent decisions seems to treat the motion as one of summary judgment. See McCann v Michigan, 398 Mich 65, 73, 76; 247 NW2d 521 (1976), Thomas v Department of State Highways, 398 Mich 1, 16; 247 NW2d 530 (1976), and compare Galli v Kirkeby, 398 Mich 527, 539; 248 NW2d 149 (1976), Opinion by Justice Coleman, and Robinson v Emmet County Road Commission, 72 Mich App 623; 251 NW2d 90 (1976).
Plaintiff also challenges the constitutionality of the immunity statute. We interpret Galli v Kirkeby, supra, McCann v Michigan, supra, and Thomas v Department of State Highways, supra, to affirm the constitutionality of that statute.
Galli v Kirkeby, supra, McCann v Michigan, supra, Thomas v Department of State Highways, supra.
Often a city may be engaging in a dual function. In those situations, the more practical approach is to determine the primary purpose of the activity in question. See Carlisi v City of Marysville, 373 Mich 198; 128 NW2d 477 (1964), Munson v Menominee County, 371 Mich 504; 124 NW2d 246 (1963), Dohm v Acme Twp, 354 Mich 447; 93 NW2d 323 (1958).
This analysis seems consistent with the present direction to focus on the "complained of activity” and also with the disapproval of the principle that if sin activity is nonproprietary, then it must be governmental. See McCann v Michigan, supra, at 79, and Thomas v Department of State Highways, supra, at 19, fh 7. | [
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D. E. Holbrook, J.
The plaintiffs brought this action for conspiracy to defraud, which plaintiffs claim resulted in the unlawful taking of their property by the defendants. At the oral argument, plaintiffs represented that the West Oakland Bank was named a defendant only because it held a mortgage on the property formerly owned by the plaintiffs, title of which was obtained by some of defendants as a result of the conspiracy to defraud, as alleged.
The complaint was filed on April 30, 1974, together with notices of lis pendens. The allegations charged therein set forth in part that defendants Ted Moskowitz and Irwin J. Rosenbaum sold land in Arizona to plaintiffs, which they did not own; procured loans from plaintiffs under false pretenses; and through misrepresentations involved plaintiffs in a business venture, Fashion Ring Franchise, using plaintiffs’ finances for said defendants’ sole gain. In the spring of 1973, defendants Moskowitz and Rosenbaum, acting in concert with the remaining defendants except the bank, successfully embarked on a scheme to relieve the plaintiffs of five valuable parcels of real estate by representing to them that their investments thus far made with defendants could only be safeguarded by a loan which this real estate was to secure and which was to be paid by defendants. Plaintiffs claim that at no time did they intend to convey ownership of these properties and that the entire transaction was misrepresented to them. Plaintiffs further allege that finally one of the defendants, First Petoskey Associates, a limited partnership (of several of the individual defendants) was specifically brought into being for the purpose of taking over plaintiffs’ properties (without plaintiffs’ knowledge) and did, in fact, take legal title to plaintiffs’ real estate, comprising certain warehouse facilities and business properties, including investment properties most of which plaintiffs enjoyed free and clear. As a part of the fraudulent scheme, plaintiffs allege defendants granted plaintiffs a leaseback arrangement. Plaintiffs claim they were totally ignorant of the true nature of this transaction and that they had been deceived and defrauded. Defendants moved for a summary judgment because plaintiffs had failed to allege fraud with sufficient specificity as required by GCR 1963, 112.2, and failure to state a claim upon which relief could be granted, GCR 1963, 117.2(1). Leave was granted permitting plaintiffs to make the complaint more specific insofar as it regarded the complaint of defendants’ conspiracy to defraud them of their properties, and plaintiffs sought to correct this by filing an amended complaint. The amended complaint insofar as pertinent alleged the following:
"That in the Spring of 1973, defendants, Ted Moskowitz, and Irwin J. Rosenbaum, acting on behalf of themselves and as expressly or impliedly authorized by defendants Rosalie R. Moskowitz, and International Brokers'Ltd., Inc., Seymour Levine, First Petoskey Associates, Edward M. Rader, Stuart D. Frank, Arnold N. Slutzsky, Jean Bowles, Alphonse Arjay, Robert Cowper, Jack Eccstein, Bursar Realty Corp., and West Oakland Bank, a National Association, in pursuance of a scheme to defraud plaintiffs of their properties and as a part of a plan by all said defendants to carry out said scheme and to induce plaintiffs to convey their real properties to them through First Petoskey Associates, a Partnership, which unknown to plaintiffs had earlier been set up by defendants for the purpose of acquiring their property as part of such conspiracy to defraud, falsely and fraudulently materially represented to plaintiffs with intento [sic] to deceive them and deprive them of their properties that the only way plaintiffs could 'save’ International Brokers Ltd. Inc., and obtain return of the considerable monies paid to them up to that time was if they would sign various 'legal papers’ prepared by and on behalf of all defendants, and presented to plaintiffs for signatures, so that an entity identified to plaintiffs only as First Petoskey Associates could take action to protect plaintiffs’ investment and get plaintiffs [sic]money back for them.”
Defendants renewed their motions for summary judgment, reiterating that the amended complaint failed to state a cause of action in fraud and deceit with sufficient specificity as required by the court rules. In addition, on October 30, 1974, defendant Seymour Levine, one of the alleged co-conspirators, filed an affidavit in the court which in pertinent part reads as follows:
"3. THAT your affiant, if sworn as a witness, can testify competently to the following facts, with reference to the claim of defense, set forth in the within matter:
"(a.) THAT Defendant SEYMOUR LEVINE’s only connection with this matter whatsoever, was to introduce lender, Defendant Banking Association, through an intemediary [sic] and/or BURSAR REALTY, to borrower, INTERNATIONAL BROKERS, LTD., for a loan for an undisclosed purpose or nature.
"(b.) THAT FURTHER, he only acted as independent parttime bookkeeper for INTERNATIONAL BROKERS LTD., one of the Defendants, and had no relationship to the subject property or transaction involving any property, fraud or collusion in any manner, whatsoever.
"(c.) THAT affiant believes that any transactions between Plaintiffs and the other Defendants were entirely unrelated to this Defendant.
"(d.) THAT notwithstanding the coincidental relationship between this Defendant and the Defendants INTERNATIONAL BROKERS, LTD., and BURSAR REALTY, and through an intermediary: Associates Investment & Management, Inc the banking institution, as intermediary, that this Defendant had nothing to do with the real estate transaction, loan itself, inducement or any alleged collusion or fraud involving Plaintiffs, or any alleged representation or misrepresentation.”
Defendant Edward M. Rader filed an affidavit in court concerning the transaction herein. He stated in pertinent part:
“3. That at said closing and in the presence of ARNOLD SLUTZKY [,sicl STEWART [sic] FRANK, JAMES W. O’NEIL of BURTON ABSTRACT & TITLE COMPANY, THEODORE MOSKOWITZ, IRWIN ROSENBAUM, and SEYMOUR LEVINE, prior to the execution of any documents, he explained the entire transaction to MR. & MRS. CASPER GOLDSMITH and repeated the explanation and answered questions until he was satisfied that MR. & MRS. GOLDSMITH had a full understanding of the transaction and of the provisions of all of the documents involved in said transaction.
"4. That no other statements, promises, or agreements were made, except the provisions and agreements contained in the documents constituting this transaction. Further, that there was no collusion with anyone respecting this transaction.”
A similar affidavit was filed by one James W. O’Neil at the same time that the affidavit of defendant Rader was filed. Both Rader’s and O’Neil’s affidavits were not filed until the day of the hearing. The affidavit of plaintiff Casper Goldsmith was taken August 19, 1974. The affidavits of Rader, O’Neil and Goldsmith all attested to the fact that defendant Levine was present at the real estate closing on April 26, 1973.
The trial court found that plaintiffs’ amended complaint still did not meet the requirements of GCR 1963, 112.2 and GCR 1963, 117.2(1) in that it did not state the circumstances constituting fraud with sufficient particularity and granted the motion for summary judgment to the defendants, except as to Moskowitz and Rosenbaum. An order was entered against the plaintiffs and in favor of defendant Levine on November 8, 1974, dismissing the cause with prejudice and assessing costs, including actual attorney fees in the amount of $1,455. A second summary judgment was entered November 12, 1974, dismissing plaintiffs’ action against First Petoskey Associates and the general and limited partners thereof on the grounds that there were no genuine issues as to any material facts, and failure to plead fraud with particularity. A third summary judgment was entered in favor of West Oakland Bank, dismissing plaintiffs’ cause with prejudice and assessing costs of $150.
Plaintiffs filed a motion for rehearing of the motions for summary judgments and costs on November 27, 1974. On December 24, 1974, to accommodate counsel for defendant Levine, the motion for rehearing previously scheduled for January 10, 1975, was rescheduled for March 14, 1975, and an order entered thereon. On January 15, 1975, Richard H. Scholl substituted as counsel for plaintiffs. On March 10, 1975, plaintiffs added to their motion for a rehearing, a motion to vacate summary judgments previously entered and for leave to file an amended complaint and for an order allowing this proposed amended complaint to stand as plaintiffs’ second amended complaint or in the alternative for a rehearing relative to the provisions in the summary judgments that dismissals were "with prejudice” and a rehearing relative to the award of attorney fees. The pertinent part of plaintiffs’ second amended complaint reads as follows:
"15. That, on information and belief, International Brokers Ltd., Inc., hereinafter referred to as INTERNATIONAL was used by Ted Moskowitz, hereinafter referred to MOSKOWITZ and Irwin J. Rosenbaum, hereinafter referred to ROSENBAUM, as vehicle through which they financed their existence by obtaining money through false pretenses as hereintofore set forth, and not for any ligitimate [sic] business purpose.
"16. That MOSKOWITZ and ROSENBAUM, in the spring of 1973, spurred by their previous success in defrauding Plaintiffs, conspired to obtain additional sums of money from Plaintiffs through the following scheme:
"(a) By convincing the semi-literate Casper Goldsmith that in order to protect his investment in INTERNATIONAL he would have to secure a certain loan necessary to be made by mortgaging some of his real estate.
"(b) That to re-finance the said loan, it would be necessary that Plaintiffs assign a certain document 'papers’ for obligations to be the sole responsibility of INTERNATIONAL and without any attendant risk to Plaintiffs.
"(c) That in truth, the 'papers’ to be signed were deeds and other instruments of transfer of Plaintiffs’ interest in certain properties, particularized in paragraph 16(a) through (e) of Plaintiffs’ original Complaint dated 4-30-74, transferring said described properties to a middle man and that the true nature of this transaction be entirely withheld from Plaintiffs.
"(d) That the middle man was to receive sufficient incentive to make this venture financially rewarding which was to be accomplished by a lucrative leaseback arrangement of the above described properties to the financially able Plaintiffs and by certain repurchase options which, even if Plaintiffs ever were to learn of them, could not economically be exercised, thus virtually assuring the middle man of absolute ownership of the described properties.
"(e) The middle man was to make arrangements in return for these considerations for a loan of funds from a financial institution by mortgaging properties described and referred to above and by assigning the lease-back.
"(f) Plaintiffs were to be kept ignorant of the transaction at its consummation, at which time they were to be requested to sign all necessary 'papers’, with assurances from MOSKOWITZ and ROSENBAUM that doing so would be in their best interest and would assure the security of their investment in INTERNATIONAL.
"17. That, on information and belief, Seymour Levine, hereinafter referred to as LEVINE, was an agent, employee and confidant of MOSKOWITZ and ROSENB AUM and fully aware of their activities, individually and as agents of INTERNATIONAL, in general, and as heretofore set forth in this Complaint, particularly as they pertained to and involved proposed plans for Plaintiffs, including the scheme referred to immediately above.
"18. That on information and belief, LEVINE arranged for a certain loan by INTERNATIONAL financed by Oakland National Bank, to be secured by mortgage from Plaintiffs, of real estate owned by them, at risk of forfeiture and based on false representations by ROSENBAUM and MOSKOWITZ, that Plaintiffs were thereby protecting their investment, all of which was known to LEVINE.
"19. That, on information and belief, LEVINE, in cooperation with MOSKOWITZ and ROSENBAUM in their scheme set forth in paragraph 16 of this Second Amended Complaint either alone, or together with MOSKOWITZ and/or ROSENBAUM approached Edward M. Rader, hereinafter referred to as RADER, President of Busar [sic] Realty, in an attempt to implement the said scheme and, on information and belief, apprised RADER of the same, or, in the alternative, of the essential elements of the plan and advised him that some easy money could quickly be made, on information and belief, apprising RADER of Plaintiffs’ ignorance and innocence and gullibility and of the profitability of prior transactions of MOSKOWITZ, ROSENBAUM and INTERNATIONAL in their past dealings with Plaintiffs, as heretofore set forth, and further that LEVINE thereafter collaborated with RADER in implementing and perfecting the said scheme by being involved in preparation of 'papers’, and documents to formalize and effectuate the same.
"19. [sic] That RADER, who, on information and belief, was well aware of Plaintiffs’ unawareness of the ploy incident and aware of the prior unsavory activities of MOSKOWITZ and ROSENBAUM generally, and insofar as they pertain to Plaintiffs, as heretofore set forth in this Complaint and further aware of LEVINE’s cooperation with MOSKOWITZ and ROSENBAUM, set out to and did form a limited partnership known as First Petoskey Associates, hereinafter referred to as FIRST PETOSKEY, to act as middle man in the scheme set forth in paragraph 16 hereof.
"20. [sic] That on information and belief, Arnold N. Slutzsky, hereinafter referred to SLUTZSKY, and Stuart D. Frank, hereinafter referred to as FRANK, joined RADER as general partners in FIRST PETOSKEY, after having been made fully aware of the fact that RADER knew of the proposed transaction, the relationship of the parties thereto and their prior dealings with one another.
"21. [sic] That the general partners of FIRST PETOSKEY, at all pertinent times, knew that Plaintiffs were ignorant of the true nature of the proposed transaction* or, knew, or had reason to know that the proposed transaction was against Plaintiffs’ interest, that those prompting Plaintiffs to become involved therein, were likely to strike an unfair bargain with and take advantage of Plaintiffs and that Plaintiffs had no reasonable means to discover this fact and they would be deceived by MOSKOWITZ and ROSENBAUM into believing that the proposed transaction was to their benefit, and, in any event of no risk to them.
"22. [sic] That, on information and belief, the general partners of FIRST PETOSKEY knew or had reason to believe that MOSKOWITZ and ROSENBAUM were about to take advantage of Plaintiffs in the proposed transactions set forth in paragraph 16 of this Amended Complaint, from which FIRST PETOSKEY was to profit, and that Plaintiffs would not be made aware of the true facts thereof.
"23. [sic] That FIRST PETOSKEY collaborated with MOSKOWITZ and ROSENBAUM in becoming the middle man between Plaintiffs and a lending institution as planned by MOSKOWITZ and ROSENBAUM.
"24. [sic] That, ignorant of the true nature of the transaction, Plaintiffs, on advice of MOSKOWITZ and ROSENBAUM, that the said transaction was a mere formality to protect their security in INTERNATIONAL and that it did not involve any obligation on Plaintiffs’ part and present no risk to them, deeded real estate and made assignments of other equities in real estate to FIRST PETOSKEY involving properties enu merated in paragraph 16 of Plaintiffs’ original Complaint dated 4-30-74.
"25. [sic] Hhat representations made by MOSKOWITZ and ROSENBAUM to Plaintiffs were false.
"26. [sic] That FIRST PETOSKEY, through its general partners, knew or had reason to know, of the falsity of the said representations by MOSKOWITZ and ROSENBAUM as set forth above.
"27. [sic] That LEVINE knew when he became an intermediary relative to several proposed loans to be secured by Plaintiffs and to the subsequent scheme described in paragraph 16 of this Complaint, that representations made by MOSKOWITZ and ROSENBAUM to Plaintiffs were false.
"28. [sic] That after acquiring title for equitable ownership of properties set forth in paragraph 16 of Plaintiffs’ original Complaint, FIRST PETOSKEY mortgaged and assigned these interests to West Oakland Bank.
"29. [sic] That Busar [sic] Realty Corporation, on information and belief, received a commission from the transaction alluded to in paragraph 16 of this Amended Complaint and coordinated the same, without the knowledge or consent of Plaintiffs.”
The trial court heard these motions on March 14, 1975, and denied said motions. The trial court stated in part:
"But looking at this case on the basis of the merits that were disclosed by affidavits and by the deposition of Mr. Goldsmith himself, it seemed to this Court that there was absolutely no claim established.
* * #
"At the same time a proposed amended second complaint has been filed and the Court has been requested to authorize the filing of this second amended complaint. The Court reads the second amended complaint and the Court still has the same reaction, that even if the second amended complaint were filed, there is considerable doubt in my mind as to whether the proper claim has been stated against the defendants with which we are concerned here.
"So the Court will at this time deny all motions of the plaintiffs in this cause and will return this case to its posture in which it was found when the Court entered summary and/or accelerated relief in November of 1974.”
Plaintiffs filed their first claim of appeal with this Court on April 1, 1975. This appeal was denied and returned to plaintiffs on July 25, 1975, on the grounds that the orders previously entered were not final orders and that therefore the Court did not have jurisdiction.
On August 11, 1975, plaintiffs moved for a rehearing of the earlier motions to amend their complaint, or in the alternative for entry of final judgment pursuant to GCR 1963, 518.2. This motion was heard on September 8, 1975. The court at that time did not address itself to plaintiffs’ renewed motion for leave to amend their complaint, but ordered that the prior judgments be amended so as to constitute judgments capable of appeal. Thereafter, on October 23, 1975, plaintiffs filed a motion for clarification requesting a ruling on plaintiffs’ motion for leave to file amended complaint on which the court had not ruled on September 8, 1975. The matter was heard October 30, 1975. The court suggested that a transcript be obtained of the September 8, 1975 hearing, so that the court could refresh its recollection. The transcript was furnished. The transcript indicates the court did not address itself to nor rule on plaintiffs’ motion before the court at that time for leave to amend plaintiffs’ complaint. After reading the transcript, the trial court signed an order denying plaintiffs’ motion for leave to amend their com plaint and amending the summary judgments heretofore entered making them final judgments pursuant to GCR 1963, 518. These were filed December 22, 1975. On January 10, 1976, plaintiffs filed this, their second claim of appeal in this Court.
In the first instance, we rule that the complaint was not in accord with GCR 1963, 112.2 and GCR 1963, 117.2(1), and therefore the trial court was correct in granting the summary judgments because of plaintiffs’ failure to comply with GCR 1963, 112.2 which necessarily resulted in a failure to satisfy GCR 1963, 117.2(1) (failure to state a claim upon which relief could be granted). Because the plaintiffs failed to plead fraud in the initial complaint as required by the court rule, any issue as to whether fact questions were involved in the case at that time could hardly be determined. However, we do recognize that in matters such as this a motion for summary judgment should rarely be granted.
"In cases involving state of mind, such as the scienter requirement in fraud, summary judgment will be appropriate in relatively few instances because it will be difficult to foreclose a genuine dispute over this factual question. Due regard must be allowed for the fact that cross-examination may be about the only way one party can prove such an issue.” 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), Author’s Comments, pp 360-361.
See, also, Reich v State Highway Commission, 43 Mich App 284, 289; 204 NW2d 226 (1972).
The principal issue before this Court is whether the trial court erred in refusing to grant plaintiffs’ motion to set aside the summary judgments in favor of the defendants and permit plaintiffs to file their second amended complaint.
The trial court considered the motion of plaintiffs as one asking for a new trial. However, the summary or accelerated judgments which had been entered by the trial court did not dispose of all of the litigation. GCR 1963, 518.2 provides that where a judgment or order does not dispose of all the parties to a cause of action such judgment or order is subject to review and revision at any time before entry of final judgment adjudging the claims of all the parties. See Covello v Brammer, 47 Mich App 395; 209 NW2d 615 (1973), Van Buren v B & J Moving & Storage, Inc, 54 Mich App 266; 220 NW2d 746 (1974). At the time of the summary judgments, plaintiffs’ claims against Moskowitz and Rosenbaum were not adjudicated and, therefore, said summary judgments were subject to review and revision at the time plaintiffs sought leave to file their second amended complaint.
In the case of Foman v Davis, 371 US 178, 181-182; 83 S Ct 227, 230; 9 L Ed 2d 222, 225-226 (1962), in accord with Federal Rules of Civil Procedure 15(a), it was determined:
"It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities. 'The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.’ Conley v Gibson, 355 US 41, 48 [78 S Ct 99, 103; 2 L Ed 2d 80, 86 (1957)]. The Rules themselves provide that they are to be construed 'to secure the just, speedy, and inexpensive determination of every action.’ Rule 1.”
In that case it was ruled that even though the summary judgment was properly granted, leave to amend should have been granted.
In Matson v Soronen, 57 Mich App 190, 193-194; 226 NW2d 52 (1974), this Court stated:
"The dispositive issue that confronts this Court is whether plaintiff should have been allowed to amend the complaint so as to add decedent’s parents as parties-plaintiff.
"GCR 1963, 118.1 provides that leave to amend a pleading 'shall be freely given when justice so requires’. GCR 1963, 207 states that '[pjarties may be added or dropped by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just’. Although no case so holding has been found, this Court holds that both rules should be similarly construed.
"The granting or denial of a motion to amend a pleading, and presumably, to add parties as well, is discretionary with the trial court. Grove v Story Oldsmobile, Inc, 31 Mich App 613; 187 NW2d 923 (1971). However, that discretion is not unbridled. In Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 658; 213 NW2d 134 (1973), it was stated:
" 'The discretion confided to trial judges under the standard "leave shall be freely given when justice so requires”, is not boundless. In Burg v B & B Enterprises, 2 Mich App 496, 500; 140 NW2d 788 (1966), Judge (now Justice) T. G. Kavanagh wrote, "[W]e believe that [this] language * * * imposes a limitation on the discretion of the court necessitating a finding that justice would not be served by the amendment.” ’
"The holding that justice would not be served must be supported by specific findings as to the reasons for the same. Fyke, supra, 656-657. No such findings were made by the trial court in the present case.”
Also, see, Tri-Part Manufacturing Co v Michigan Consolidated Gas Co, 1 Mich App 684; 137 NW2d 739 (1965), and Burg v B & B Enterprises, Inc, 2 Mich App 496; 140 NW2d 788 (1966).
Plaintiffs claim a conspiracy to defraud on the part of the defendants. A conspiracy is a combination of two or more persons who by some concerted action attempt to accomplish an unlawful purpose. To establish a conspiracy to defraud, one must show both an illegal purpose and damages, Stanfill v Hoffa, 368 Mich 671; 118 NW2d 991 (1962), Chilton’s, Inc v Wilmington Apartment Co, 365 Mich 242; 112 NW2d 434 (1961). In alleging conspiracy, one need not specify the exact means used in carrying out the illegal purpose. 5 Michigan Law & Practice, Pleading, §4, pp 593-594. The second proposed amended complaint together with the allegations of the previous complaint properly alleged a conspiracy to defraud by defendants. The illegal purpose on behalf of all defendants, except the bank, was claimed to be to obtain title to plaintiffs’ valuable property by misrepresentation and deceit, according to a scheme alleged, the allegation of damages is self-evident in the pleadings—whereas once plaintiffs owned valuable property, as a result of the claimed fraudulent actions of defendants, they have lost their properties to their damage. In denying plaintiffs’ motion for leave to file their second amended complaint, the trial court was required under Matson to support said denial by specific findings as to reasons for holding that justice would not be served by granting the amendment. No such findings were made by the trial court in the instant case. We rule that the trial court should have granted plaintiffs’ leave to file their second amended complaint and set aside the summary judgments in favor of the defendants heretofore entered. We so order. We further rule that the second amended complaint satisfies the pertinent court rules.
Reversed and remanded for a trial on the merits. Costs to be awarded the prevailing party below.
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J. H. Gillis, P. J.
Defendant was convicted by a jury of felonious driving. MCLA 752.191; MSA 28.661. His sentence consisted of two years probation and 20 weekends in jail plus $360 costs, a $250 fine and license revocation.
The testimony at trial established that on November 10-11, 1974 defendant had worked the afternoon shift at Fisher Body in Lansing. He left work at about 4:30 a.m. after working about 11-1/2 hours. Defendant then went to a fellow worker’s home where he and two co-workers chatted and shared some whiskey amounting to two drinks apiece. Defendant and one of the men left at about 6:30 a.m. to go out for breakfast. Defendant followed his co-worker to the restaurant. They were traveling northbound on a five-lane highway. The co-worker’s car turned left from the center lane into the parking lot of the restaurant. Subsequently, defendant turned left whereupon the victim, driving a motorcycle, collided with defendant’s car. The victim was thrown off of his motorcycle and landed near the parking area of a bank. He was severly injured.
The victim stated that he was traveling southbound and from 2-1/2 blocks away he saw the first car turn into the restaurant parking lot. He continued traveling southbound to a point in front of the restaurant where the second car (defendant’s car) turned in front of him and the collision occurred.
Defendant testified that he turned immediately after his co-worker turned and that he did not see the motorcycle. The co-worker stated that he heard the crash after he had parked his car.
Much of the trial testimony centered around defendant’s behavior after the accident. The prosecution produced witnesses who testified that defendant appeared intoxicated and that he did not pass the balance tests administered by the police at the scene. Defendant stated that the two drinks had no effect upon his driving.
Defendant contends that evidence of his intoxication was irrelevant as it concerned events subsequent to the driving in question and also that the people failed to adduce sufficient evidence to support a conviction of felonious driving. The two issues presented overlap considerably for once it is established what constitutes felonious driving, i.e., what evidence is sufficient to support a conviction, then it becomes clear as to which evidence is relevant.
We define felonious driving as the reckless or negligent driving of a vehicle upon a highway resulting in crippling injury. The statute provides:
"Every person who drives any vehicle upon a highway carelessly and heedlessly in wilful and wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property and thereby injuring so as to cripple any person, but not causing death, shall be guilty of the offense of felonious driving and upon conviction thereof shall be sentenced to pay a fine not exceeding one thousand [1,000] dollars or to imprisonment in the state prison not exceeding two [2] years or by both fine and imprisonment in the discretion of the court.” MCLA 752.191; MSA 28.661.
The statute focuses on the result of the defendant’s actions rather than on the nature of the actions. In other words, it is possible that two individuals could engage in identical conduct but yet receive different penalties by virtue of the fact that the results differed. Injury oriented penalties are not infant to our law. To illustrate, we reiterate a well-known and perhaps overused law school example. If A hits B in the nose and B suffers no physical injury, A could be charged with battery. Yet, if C hit D, a hemophiliac, in the nose and D bled to death as a result, C could be charged with involuntary manslaughter.
We find that in the instant case the evidence presented was sufficient to sustain a conviction of felonious driving. The injury is not disputed. It is therefore only necessary that the evidence support either negligent or reckless driving.
The evidence supports a finding that defendant failed to yield a right of way to the oncoming motorist. The jury could find that this occurred for a variety of reasons. For example, the possible effect of alcohol on defendant’s driving or the failure to keep a proper lookout. The jury could also find that defendant, by driving under the influence, made a conscious choice that was in disregard of the safety of others. Whatever the reason, the evidence supports the jury’s verdict.
Defendant contends that evidence of intoxication is irrelevant to the charged offense in this case. He directs us to cases in other jurisdictions that hold intoxication alone is insufficient to support a finding of reckless driving. These cases do not however stand for the proposition that evidence of intoxication is inadmissible. Aside from the well established rule that relevancy determinations are discretionary with the trial judge and additionally that in the instant case intoxication was part of the res gestae, People v Campbell, 30 Mich App 43; 186 NW2d 49 (1971), there are additional reasons for its admissibility. Such evidence is properly considered in making a determination of whether one has driven recklessly or carelessly. In this case we have an accident which resulted in severe injury. Alcohol possibly had a large effect on defendant’s perception and additionally is relevant in determining whether defendant proceeded in the face of a known danger.
Affirmed.
D. E. Holbrook, Jr., J., concurred.
Defendant contends that felonious driving is reckless driving plus crippling injury.
The reckless driving statute as amended reads:
"(a) Any person who drives any vehicle upon a highway or a frozen public lake, stream or pond or other place open to the general public, including any area designated for the parking of motor vehicles, within this state, in wilful or wanton disregard for the safety of persons or property is guilty of reckless driving.
"(b) Every person convicted of reckless driving shall be punished by imprisonment in the county or municipal jail for a period of not more than 90 days or by a fine of not more than $100.00, or by both.” MCLA 257.626; MSA 9.2326.
Felonious driving contains the additional phrase "without due caution and circumspection and at a speed or in a manner so as to endanger or likely to endanger any person or property * * * .” We interpret this to mean ordinary negligence. Ex parte Chernosky, 153 Tex Crim 52; 217 SW2d 673 (1949). We reject the interpretation that ordinary negligence cannot support criminal liability. Negligent driving resulting in death supports criminal liability, MCLA 750.324; MSA 28.556, and the same has been held constitutional, People v McMurchy, 249 Mich 147; 228 NW 723 (1930). We are troubled by the fact that negligent homicide is a high misdemeanor while felonious driving is a felony. However, the penalties are not inconsistent and we presently invite the Legislature to review these provisions. | [
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Bashara, J.
Defendant Terry Duane Burton appeals from his conviction of felony murder, MCLA 750.316; MSA 28.548.
Defendant’s first contention is that the trial court erred in denying him a new trial on the basis of newly discovered evidence. Discussion of the issue requires a recitation of the complicated factual and procedural circumstances of this case.
On June 7, 1971, a robbery occurred at the Jet Gas Station in Battle Creek, Michigan. During the course of that robbery an attendant of the gas station was shot and killed by one of the robbers. At approximately 12:20 a.m. on June 8, 1971, a few hours after the robbery and killing, defendant and one Jerry Steiner were arrested and charged with first-degree murder.
The two defendants were tried separately. At defendant’s trial the prosecution evidence consisted mainly of the testimony of two eyewitnesses to the robbery. Howard Youmans was one of the two attendants at the Jet Gas Station on the night of the robbery. He testified that two individuals entered the station as he and the deceased, James Hiscock, were closing for the night. The men wore women’s stockings over their faces. One emptied the cash register while the other, who was carrying a handgun, stood guard over Youmans and Hiscock. The attendants were ordered to lie face down on the floor. As the robbers were leaving, one of them fired a shot into Mr. Hiscock’s back. Hiscock died shortly thereafter from the wound.
At trial Mr. Youmans identified the defendant as the robber who had held the handgun and identified Jerry Steiner as the other participant.
The second eyewitness was a man known as "Poor” Sam Watkins. Watkins operated an upholstery shop directly across the street from the Jet Gas Station. On the night of the robbery he was in his shop and observed the crime from his window. Watkins testified that he recognized the defendant, with whom he had been previously acquainted, as one of the robbers. Mr. Watkins stated that he identified the defendant when he first ran from the station, and later when the defendant allegedly ran past Watkins while removing the stocking from his face.
Watkin’s statement to the police resulted in defendant’s arrest shortly thereafter. Youmans, who had previously known and implicated Jerry Steiner, did not identify the defendant until a photographic showing subsequent to the defendant’s arrest.
These two witnesses were the only link between the defendant and the crime. No physical evidence, such as fingerprints or a weapon, was introduced to show Burton’s involvement. Strands of hair found on a discarded stocking mask near the gas station did not match the defendant’s hair.
Defendant relied upon a defense of alibi. He testified that at the time of the crime he was watching television at his mother’s house. After hearing of the robbery he walked to the gas station, a short distance, to see what was going on. He stated that he saw Mr. Watkins while observing the police activity at the station.
The defense presented several witnesses, including the defendant’s mother, brother, and two of his sisters, to corroborate his alibi testimony. The defense also offered evidence of an argument between the defendant and Mr. Watkins two weeks prior to the robbery.
The defendant was convicted of first-degree felony murder and sentenced to mandatory life imprisonment in February 1972. The defendant was 17 years old at the time of his sentence.
Jerry Steiner was also convicted of first-degree murder. On appeal Steiner’s conviction was over turned. On remand Steiner entered into a plea agreement with the Calhoun County Prosecutor and pled guilty to a charge of unarmed robbery. While under oath at his plea proceeding, on December of 1974, Steiner stated that the robbery at the Jet Gas Station had been committed by himself and his brother, Clinton Steiner. His plea statement exonerated defendant Burton from any part of the murder and robbery.
In March of 1972 the defendant’s original appellate counsel filed a motion for new trial. An order denying the motion was not filed until July of 1974. Shortly thereafter the original counsel moved to withdraw from the case and present appellate counsel was appointed. A claim of appeal was filed alleging in part the existence of newly discovered evidence. On January 29, 1976, this Court ordered a hearing to be held on the issues of newly discovered evidence and the photographic identification procedures used.
The hearing was held on April 15 and July 15, 1976. Defendant’s first witnesses were his three sisters. Bobbie Carson testified that she was a member of a black separatist organization, the Republic of New Africa, which had planned and executed the robbery. She admitted taking part in the planning of the crime. Mrs. Carson stated that the defendant was not a member of the Republic of New Africa and had not been involved in the planning of or participation in the robbery. She attributed the commission of the crime to Jerry and Clinton Steiner.
Mrs. Carson testified she did not inform the defendant or his trial attorney until after he had been convicted. Her withholding of this evidence was because she felt her brother would easily be acquitted since she knew he was innocent, and she feared admitting complicity in the robbery. She stated that she informed the police prior to the defendant’s trial by way of an anonymous phone call.
Letha Taylor testified as to being a member of the Republic of New Africa. She denied helping plan the robbery. However, she admitted assisting her sister Bobbie dispose of a jacket allegedly worn by Clinton Steiner during the robbery and sprinkle pepper over Clinton’s trail in an effort to confuse tracking dogs. She maintained, as did her sister, that she withheld this information from her brother and his attorney because she felt that he would be acquitted even without her testimony and because of her fears of implication as an accessory. Mrs. Taylor reaffirmed her trial testimony that the defendant was at his mother’s house watching television while the robbery took place.
Delores Burton testified that she discovered what her sisters knew about the robbery prior to her brother’s trial but was told by them that the information had been given to the defendant’s attorney. After the conviction, Ms. Burton was informed that the information had been withheld.
Jerry Steiner was called to the stand. Over the defendant’s objections, Clinton Steiner was brought into the courtroom on the prosecution’s request. Jerry Steiner testified that he had not associated with the defendant and that the defendant was not a member of the Republic of New Africa. When questioned about the robbery Steiner admitted knowledge of who had committed the crime, but refused to divulge those names out of fear for his .family’s safety. He did state that neither the defendant, himself, nor his brother Clinton had taken part in the robbery. He main tained that he had lied at his plea proceeding in order to avoid a possible life sentence on a retrial of his murder charge.
Joseph Gonzales, a Calhoun County probation officer, was the next witness. He stated that he was Jerry Steiner’s probation officer, in connection with an unrelated misdemeanor charge, during the time period shortly after the Jet Gas Station robbery. He admitted receiving a phone call from Steiner concerning the robbery case. Officer Gonzales stated that at the time of the phone call he was not preparing any presentence or probationary reports concerning Mr. Steiner.
When questioned about the substance of the phone call Gonzales refused to answer on the grounds that the information he received from Steiner was a privileged communication. After a lengthy argument from both counsel the court ruled a statutory privilege did apply and that only Mr. Steiner could waive that privilege. On being recalled to the stand Steiner refused to waive the privilege.
The defendant also called Battle Creek police officer Lester Sturgeon to testify as to the photographic identification procedures used with Howard Youmans on the morning after the robbery.
At the continuation of the hearing the defendant was called to testify. He stated that although he had talked to his sisters during his trial and had asked them if they knew anything about the robbery, he had no knowledge of their information until six months after his conviction. He also testified that his trial attorney had repeatedly asked him to tell his family to come forward if they possessed any undiscovered evidence.
The trial judge denied the defendant’s motion for a new trial in an opinion dated September 28, 1976. The defendant’s appellate counsel thereafter brought the present appeal.
The oft-expressed standard for the granting of a new trial has recently been reiterated in People v Alexander, 72 Mich App 91; 249 NW2d 307 (1976). There the Court stated:
"The test is set forth in People v Boynton, 46 Mich App 748, 750; 208 NW2d 523, 524 (1973), as follows:
" 'A new trial will be granted for newly discovered evidence only if there is a showing: (a) that the evidence is newly discovered; (b) that the evidence is not merely cumulative; (c) that the evidence is such as to render a different result probable on retrial; and (d) that the defendant could not with reasonable diligence have produced it at trial.’ ” 72 Mich App at 94.
See also People v Clark, 363 Mich 643; 110 NW2d 638 (1961), People v Keiswetter, 7 Mich App 334; 151 NW2d 829 (1967). The granting of a new trial on these grounds is discretionary with the trial court. We will only reverse where an abuse of discretion is apparent. People v Alexander, supra.
In the present case the evidence presented at the hearing easily meets the first two requirements of the Alexander test. There is no question that the evidence is not cumulative to the trial testimony.
The evidence is also newly discovered. The trial court held that the evidence was not newly discovered since the witnesses, particularly the defendant’s sisters, had possessed their knowledge since the date of the offense. However, evidence is newly discovered if it can be shown to have been unknown to the defendant or his counsel at the time of trial. See People v LoPresto, 9 Mich App 318; 156 NW2d 586 (1967). The fact that the witnesses obtained their knowledge prior to the trial is not a decisive factor. In a practical sense to hold otherwise would render futile virtually all future claims of newly discovered evidence.
In the present case no showing was made that the defendant or his counsel was aware at the time of trial of the knowledge possessed by the defendant’s sisters or by Jerry Steiner. In fact, the testimony shows that this information was deliberately withheld from the defense.
The final two requirements of the standard for a new trial raise more difficult problems. A thorough review of the record reveals both the weaknesses of the inculpatory evidence at trial and the strength of the exculpatory evidence at the hearing on remand.
In view of the weaknesses of the trial testimony the newly discovered evidence could have a significant impact on a second jury. In itself Jerry Steiner’s plea statement implicating his brother as the second robber might create a reasonable doubt as to the defendant’s guilt. Indeed, in People v Mc-Allister, 16 Mich App 217; 167 NW2d 600 (1969), an affidavit by a person other than the defendant implicating the affiant and a third person as the sole perpetrators of an offense was sufficient to allow a panel of this Court to summarily overturn the trial court’s denial of a new trial. Adding to Steiner’s statement the corroborating testimony of the defendant’s sisters, who by their testimony would subject themselves to possible prosecution, we reach the conclusion that a reasonable doubt as to the defendant’s guilt would be probable.
This Court also finds that the defendant could not with reasonable diligence have produced this evidence at trial. Jerry Steiner, being a codefendant in the case, could have exercised his Fifth Amendment right to remain silent if called as a defense witness. The defendant testified at the hearing that he asked his sisters if they had any additional information about the robbery and received no response. The defendant’s attorney made several requests through the defendant for any new evidence. The testimony of Mrs. Taylor and Mrs. Carson shows an affirmative plan to withhold this knowledge from the defense in hopes of an acquittal. It cannot be said that even an exercise of diligence in excess of what was actually undertaken would have uncovered this evidence.
We conclude the defendant has met all four of the requirements of showing newly discovered evidence. Since a retrial is required, some of the defendant’s other issues on appeal need to be discussed to avoid recurrence.
The defendant contends that the statutory privilege afforded to the communications of defendants and probation officers does not include within its ambit the phone conversation between Jerry Steiner and Joseph Gonzales.
The statute in question, MCLA 791.229; MSA 28.2299, reads as follows:
"All records and reports of investigations made by probation officers, whether state or local, for courts of criminal jurisdiction in cases referred for such investigation by such courts, and all case histories of probationers are hereby declared to be privileged or confidential communications not open to public inspection. Judges and probation officers shall have access to such records, reports and case histories. The probation officer or the assistant director of probation, or his representa tive, shall permit the attorney general, the auditor general, and law enforcement agencies to have such access. The legislative intent is that the relation of confidence between the probation officer and probationer or defendant under investigation shall remain inviolate.”
A review of the case law reveals no prior decision delineating the scope of this privilege.
The defendant argues that the first sentence of the statute limits the privilege to communications made in the process of preparing presentence reports or other records or reports of probation officers. This limited scope of the privilege would exclude the communication in the present case since officer Gonzales testified that he was not engaged in preparing any reports at the time of Steiner’s phone call. The prosecution responds that the last sentence of the statute evidences a legislative intent to apply the privilege to all communications between a probationer or defendant and a probation officer.
We do not agree with the prosecution that the privilege extends to all communications. The statute expressly limits the privilege to records, reports, and case histories prepared by a probation officer. This intended limitation is not overcome by the final sentence since the relation of confidence is stated to exist between the probation officer and a "probationer or defendant under investigation”. (Emphasis added.) We are mindful in so interpreting the scope of the statute that the possible introduction of exculpatory evidence should not be hindered by the operation of a technical rule of evidence. See Chambers v Mississippi, 410 US 284; 93 S Ct 1038; 35 L Ed 2d 297 (1973). Therefore if the statement in the present case was made to the probation officer outside of the scope of his statu tory responsibility under this act, it should be admissible.
Defendant claims that the photographic identification procedures employed in regard to witness Youmans were suggestive and subsequently tainted his in-court identification. On remand a pre-trial hearing should be held to determine the propriety of the procedures used and, if error is found, whether an in-court identification would be supported by an independent basis. See People v Hutton, 21 Mich App 312; 175 NW2d 860 (1970). At this hearing the rules expressed in People v Anderson, 389 Mich 155; 205 NW2d 461 (1973), will be applicable.
Defendant contends that the trial judge erroneously instructed the jury on the elements of felony murder. On retrial the judge’s instructions are to be governed by this Court’s recent opinion in People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976).
The defendant’s other allegations of error are without merit.
Reversed and remanded.
This Court feels it necessary to note that the defendant’s attorney filed an extensive brief on appeal in May of 1975, and a supplemental brief in November of 1976. The prosecutor did not appear at the oral argument in this case and only filed a brief in February of 1977, after the case had been called for oral argument. This Court is of the opinion that a less than reasonable effort was put forth by the minimal treatment offered by the prosecution in the present case.
The trial court, in ruling that the identification testimony of Youmans was admissible, incorrectly used the legal test of independent basis. The court held that Youmans’ in-court identification was not error since the police, acting on Mr. Watkin’s statement, had an independent basis for the defendant’s arrest. The independent basis test does not refer to the arrest, but rather to whether the identifying witness’s in-court testimony is free of any taint created by a suggestive pre-trial procedure. | [
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Per Curiam.
Defendant appeals as of right from a circuit court order denying his request for specific rights of child visitation.
Plaintiff and defendant were married on March 14, 1964, and separated but six months later. Their son was born February 1, 1965, and plaintiff filed for divorce in November, 1965. The circuit court granted plaintiff a divorce on March 14, 1967, awarded custody of the child to the mother, and required defendant to pay $20 weekly as child support. The same order granted defendant unspecified visitation rights. Both parties have since remarried.
Defendant took up residence in New York state, while plaintiff and their son remained in the Detroit area. Prior to 1973, defendant made but two attempts to visit his child; in both instances, visitation was refused by plaintiff. Until 1973, defendant made no attempt to comply with the order to pay support.
Defendant’s father died in 1973. Over defendant’s objection, plaintiff succeeded in obtaining some $7,000 in support arrearage by having the friend of the court appointed as receiver of the legacy due to her former husband. The circuit court also denied defendant’s motion for specific periods of visitation and reduction in support, leaving untouched the original provisions of the divorce decree.
Defendant renewed his motion for specific visitation rights in September, 1974, and January of 1975. These motions were denied or adjourned. The circuit court finally held an evidentiary hearing on January 16, 1976. After hearing testimony and the parties’ arguments, the trial court ruled that the best interests of the child required that the defendant be denied all visitation rights. In view of this ruling, plaintiff waived any right to continued support payments. It is from the modification of the visitation provisions of the original divorce decree that defendant appeals.
Since 1971, the Child Custody Act, 1970 PA 91; MCLA 722.21 et seq.; MSA 25.312(1) et seq., has governed disputes over child visitation. While the act focuses on custody disputes, there can be little doubt that the act was intended to control visitation privileges as well. MCLA 722.24, 722.27, 722.27a; MSA 25.312(4), 25.312(7), 25.312(7a). Lorenz v Lorenz, 70 Mich App 356; 247 NW2d 569 (1976). Our review of the record convinces us that the trial court did not make erroneous findings nor commit a palpable abuse of discretion which would justify reversal. MCLA 722.28; MSA 25.312(8).
The defendant sought a modification of the divorce decree to force the plaintiff to allow him specific times for visitation. Under MCLA 722.27(c); MSA 25.312(7)(c) the requested modification would amount to a change in the "established custodial environment” of the child which had been established over the ten-year period of his mother’s care and support. The trial court could not grant such a modification unless persuaded by clear and convincing evidence that the change would be in the best interests of the child. We agree with the trial court that the defendant failed to meet his burden.
The trial court found that the defendant abandoned the child to its mother’s care from 1965 to 1973, a period of eight years. It was only in response to plaintiff’s attempt to collect delinquent child support payments that defendant asserted a claim to specific visitation. The parties do not dispute the adequacy of care or attention received by the child in its mother’s home.
The factor most emphasized by the trial court was the nature of the child’s relationship within a stable home environment. The record shows that the child considers his stepfather to be his real father and his half-brothers to be true brothers. The child is emotionally sensitive and even defendant admits the possibility that his late intervention after 11 years absence may traumatize the young boy. In our view the trial court, although seemingly confused as to the applicability of the Child Custody Act, supra, did consider the relevant factors for the best interests of the child, MCLA 722.23; MSA 25.312(3), and properly found that the defendant had failed to meet his burden of proof to justify modification of the established custodial environment. MCLA 722.27(c); MSA 25.312(7)(c).
The defendant also complains that the trial court impermissibly took into consideration the report and recommendations of the friend of the court. Under prior precedents, friend of the court reports are not admissible unless both parties so stipulate on the record. However, neither party objected to this evidence, and the record shows that the trial court did not rely on these recommendations in his decision. We perceive no reversible error.
Affirmed. Costs to plaintiff.
It appears from the record of the subsequent hearing that these motions for visitation were denied because defendant was then delinquent in his child support payments. While these dismissals are not directly challenged on this appeal, we note here that such practices will not stand scrutiny. To use custody or visitation privileges as an enforcement weapon runs counter to basic principles of the Child Custody Act and the principles of that statute’s precursor, 1873 PA 192. Bylinski v Bylinski, 25 Mich App 227; 181 NW2d 283 (1970), Parrott v Parrott, 53 Mich App 635; 220 NW2d 176 (1974). | [
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On Rehearing
M. J. Kelly, J.
This case was originally decided February 26, 1976, and published at 67 Mich App 470; 241 NW2d 253. We granted rehearing principally because one of the authorities relied upon by the majority was later reversed by the Supreme Court. Jeminson v Montgomery Real Estate & Co, 396 Mich 106; 240 NW2d 205 (1976).
On rehearing we reverse the decision of the trial court for the reasons outlined in the dissent at 67 Mich App 470, 478. The cause is remanded.
It is pointed out by the defendants that entirely unlike the mortgage company in Jeminson the Rancks were not active participants in the transaction involved, did not afford credit or financing and performed merely a ministerial act to acquiesce in the transaction between the immediate sellers, the Saylors, and the plaintiffs. We are not equating the Rancks’ position with the mortgage company’s position in Jeminson. We are holding only that assuming every well pleaded allegation in plaintiffs’ complaint to be true, summary judgment was erroneous.
Plaintiffs have alleged that defendants-appellees suppressed knowledge that the premises in question were uninhabitable and literally disintegrating. On favorable view we hold that plaintiff’s claim is not "so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery”. Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426, 431; 202 NW2d 577 (1972).
We consider it unnecessary to reprint here the dissenting opinion referred to above.
Reversed and remanded.
M. F. Cavanagh, P. J., concurred. | [
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Bashara, J.
Plaintiff Mary Ledbetter, widow of the deceased Dali Ledbetter, appeals by leave from a decision of the Workmen’s Compensation Appeal Board which denied her dependency benefits arising from the death of her husband.
Since the issue raised in this appeal is one of first impression in Michigan, a short summary of relevant facts is necessary. The decedent returned to work at defendant company on May 15, 1972, following a three-month leave resulting from a broken leg. In consideration of the newly-healed injury the decedent was given work which required lighter physical labor than his previous job. After his shift was completed the decedent went to the company locker room to retrieve his coat. While standing in the locker room, the decedent suddenly began shaking and foaming at the mouth, turned completely stiff, and fell to the floor. Due to his rigidity, the decedent did not attempt to break his fall. His head hit directly onto the concrete floor. The decedent’s shaking and subsequent fall were observed by two witnesses.
The decedent was taken to a hospital where one week later he died. The cause of death was found to be a fractured skull resulting in massive acute subdural hematoma.
The issue before this Court is whether injuries resulting from an idiopathic fall onto an employer’s level floor are compensable under Michigan’s Workmen’s Compensation Act. MCLA 418.101 et seq.; MSA 17.237(101) et seq. An idiopathic fall is one resulting from some disease or infirmity that is strictly personal to the employee and unrelated to his employment.
As this is novel to Michigan, we must look to other jurisdictions for guidance. A survey of idiopathic fall cases is included in Professor Larson’s comprehensive treatise on Workmen’s Compensation Law, § 12.14, pp 3-216 to 3-231. Larson relates the trend of decisions as follows:
"A distinct majority of jurisdictions, * * * have denied compensation in level-fall cases. The reason is that the basic cause of the harm is personal, and that the employment does not significantly add to the risk. A significant minority, however, make awards for idiopathic level-floor falls, but on close examination of the facts and opinions in these cases, the number is not as large as it has sometimes been thought to be.” Larson, Workmen’s Compensation Law, supra, at 3-217-3-219.
Compensation benefits in level floor fall cases have been denied in a Federal circuit and in a number of state systems. A small number of state courts have allowed compensation.
This Court is of the opinion that acceptance of the majority rule, which denies benefits in level floor cases, is the preferable result. We do not believe the sole fact that the decedent’s fall occurred on the employer’s premises justifies an award of dependency benefits to his widow.
The plaintiff strenuously argues that Michigan no longer requires a showing that the employee’s injuries were proximately caused by his employment. In Whetro v Awkerman, 383 Mich 235; 174 NW2d 783 (1970), the Michigan Supreme Court did hold that a showing of proximate causality between the employment and the injury is not a prerequisite of compensation. Whetro involved a so-called "positional risk” case. There the plaintiff was injured when a tornado destroyed a motel at which he was staying while on business for his employer.
The Court rejected the defendant’s argument that an "act of God” defeats a Workmen’s Compensation claim. Under Larson’s terminology an "act of God” would be a "neutral risk” since it arose neither from the employment or from the employee’s person. The Court held that since the employee’s work required him to be in a location where he was exposed to neutral risk, his injury had arisen "out of’ his employment. The fact that the proximate cause of the injury, the tornado, was not part of the employment did not render the injury noncompensable.
While Whetro struck down the proximate cause test for compensation it did not, as implied by the plaintiff, set forth a rule that any trauma suffered by an employee while on the employer’s premises or while on company business is necessarily compensable. Some other connection between the employment and the injury must be shown.
The test for this required connection has been stated by the Michigan Supreme Court in a decision subsequent to Whetro, supra. In Deziel v Difco Laboratories, Inc, 394 Mich 466; 232 NW2d 146 (1975), the Court held:
"The Workmen’s Compensation Act, MCLA 418.301; MSA 17.237(301), requires that injuries to be compensable must arise 'out of and in the course of employment. In cases such as these which are asserted to involve preexisting conditions the question of whether a disability arose out of the employment is resolved by the fact finder only upon inquiry regarding the work connection. The legal principle to be applied is that set forth by Professor Larson in § 12.20 of his treatise, Workmen’s Compensation Law, at 3-231: whether 'the employment aggravated, accelerated, or combined with the disease or infirmity to produce the * * * disability’.” 394 Mich at 475-476.
Although the Deziel case specifically involved psychiatric problems alleged to be caused or aggravated by the employment, the test announced is equally applicable to all cases where the injury results from some pre-existing personal condition.
The requirement that the employment be connected to the injury by way of aggravating or accelerating the harm creates a distinction between neutral risk and personal risk cases. In neutral risk cases, such as those considered in Whetro, supra, the connection is supplied by the fact that the injury occurs on the premises of the employer (or at a location where business is to be conducted) and that the employment itself required the employee to be at that location where exposure to the risk occurred. In personal risk cases, including idiopathic fall situations, the sole fact that the injury occurred on the employer’s premises does not supply enough of a connection between the employment and the injury. Unless some showing can be made that the location of the fall aggravated or increased the injury, compensation benefits should be denied.
The policy justification for this line of analysis in personal risk cases has been adequately expressed by Professor Larson:
"It should be stressed that this requirement of some employment contribution to the risk in idiopathic-fall injuries is a quite different matter from the requirement of increased risk in, say, lightning cases. The idiopathic-fall cases begin as personal-risk cases. There is therefore ample reason to assign the resulting loss to the employee personally. The lightning cases begin as neutral-risk cases. There is therefore no reason whatever to assign the resulting loss to the employee personally. To shift the loss in the idiopathic-fall cases to the employment, then, it is reasonable to require a showing of at least some substantial employment contribution to the harm. But in neutral-risk cases, the question is not one of shifting the loss away from a prima facie assignment to the employee at all, since there has never been ground for any such assignment; all that is needed to tip the scales in the direction of employment connection, under the positional-risk theory, is the fact that the employment brought the employee to the place at the time he was injured — an extremely lightweight causal factor, but enough to tip scales that are otherwise perfectly evenly balanced.” Larson, Workmen’s Compensation Law, supra, at 3-220-3-221.
While this Court firmly believes in the principle that employers should be responsible for work-related injuries of their employees, we do not feel that such responsibility should be stretched to include injuries predominantly personal to the employee.
In the present case the decedent’s fall must be termed idiopathic in nature. The plaintiff has never alleged that the seizure was caused by the employment. In addition, the plaintiff, while not actually conceding the cause of the fall, has consistently argued that the nature of the decedent’s illness is not relevant. Our discussion of the distinction between personal risk and neutral risk cases belies the plaintiff’s position. The seizure and fall was witnessed by two other employees. This matter cannot therefore be considered as one dealing with falls of unexplained or unknown origin.
The plaintiff’s remaining argument for compensation is that the concrete or cement floor onto which the decedent fell aggravated his injury. Although we recognize that a fall onto a softer surface may have lessened the impact, we are not convinced that the composition of the floor necessarily aggravated the harm. It cannot be said with certainty that had the fall occurred at a different location, away from the employer’s premises, the injuries would have been less serious.
This uncertainty distinguishes a level floor case from cases where compensation has been allowed for idiopathic falls from platforms, ladders, or onto some type of machinery. The distinction needs to be drawn, however slight. The plaintiff has not shown that the decedent’s injury arose "out of and in the course of’ his employment.
The decision of the Workmen’s Compensation Appeal Board denying dependency benefits to the plaintiff is affirmed.
It is alleged by plaintiff that decedent’s injuries were not diagnosed properly, and the improper diagnosis may have contributed to decedent’s demise. For purposes of this discussion we need not resolve that issue.
Wolff v Britton, 117 US App DC 209; 328 F2d 181 (1964), Sears, Roebuck & Co v Industrial Commission, 69 Ariz 320; 213 P2d 672 (1950), Borden Foods Co v Dorsey, 112 Ga App 838; 146 SE2d 532 (1965), Montanari v Lehigh Portland Cement Co, 282 App Div 1082; 126 NYS2d 180 (1953), Cole v Guilford County, 259 NC 724; 131 SE2d 308 (1963), Zuchowski v United States Rubber Co, 102 RI 165; 229 A2d 61 (1967).
Employer’s Mutual Liability Insurance Co of Wisconsin v Industrial Accident Commission, 41 Cal 2d 676; 263 P2d 4 (1953), George v Great Eastern Food Products Inc, 44 NJ 44; 207 A2d 161 (1965), Pollock v Studebaker Corp, 97 NE2d 631 (Ind App, 1951), General Insurance Corp v Wickersham, 235 SW2d 215 (Tex Civ App, 1950).
For a comprehensive discussion of cases dealing with falls to hard floors see Larson, Workmen’s Compensation Law, § 12.14, pp 3-227 to 3-231. | [
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R. B. Burns, J.
Plaintiff was the father of Carol Siess, deceased, and is the administrator of her estate. The defendants are members of the State of Michigan Bureau of Pardons and Paroles, the director and assistant director of the Michigan Department of Corrections, and members of the Michigan Corrections Commission.
Plaintiff instituted suit for damages and injunctive relief against the defendants for the death of his daughter, killed by a parolee.
Defendants moved for a summary judgment based on the doctrine of governmental immunity. The trial court granted the motion.
The plaintiff claims that the defendants acted outside the scope of their authority and therefore lose their defense of governmental immunity and are liable to plaintiff.
MCLA 791.235; MSA 28.2305 provides in part: "The release of a prisoner on parole shall be granted solely upon the initiative of the parole board.”
The defendants may have made a mistake in granting parole to the involved parolee but such a grant was within the scope of their authority.
MCLA 791.234; MSA 28.2304 provides: "The time of his release on parole shall be discretionary with the parole board.”
Walkowski v Macomb County Sheriff, 64 Mich App 460; 236 NW2d 516 (1975), holds that a state official is immune from suit for the consequences of his discretionary acts.
Affirmed. No costs, a public question. | [
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M. F. Cavanagh, J.
The defendant appeals his bench trial conviction for possession of cocaine with intent to deliver. MCLA 335.341(l)(b); MSA 18.1070(41)(l)(b). We reverse because the principal evidence underlying the charge was unconstitutionally seized.
We adopt the statement of facts of the dissenting opinion with but one exception. We disagree with the dissent’s assertion that our review of the evidence includes the trial testimony of Detective Parks. Defendant’s timely motion to suppress was denied by the district court. When he moved to quash the information in the circuit court, the case was remanded for further testimony by Detective Lester. Upon completion of the district court hearing, the circuit court reviewed the district court record and denied the motion to quash. People v Olajos, 397 Mich 629; 246 NW2d 828 (1976), does not change the well established rule that appellate review of the circuit court’s denial of a defendant’s motion to quash the information is restricted to the evidence presented to the magistrate, regardless of the nature of evidence pre sented at trial. People v Charles D Walker, 385 Mich 565; 189 NW2d 234 (1971), People v Hall, 375 Mich 187; 134 NW2d 173 (1965), People v White, 276 Mich 29; 267 NW 777 (1936).
While we agree that the only manner in which this search could be upheld would be as incident to an arrest, we cannot agree that the authorities had probable cause to arrest.
The informant’s tip was the crux of the authorities’ belief that a crime had been committed and that the defendant had participated in it. The cases from Aguilar v Texas, 378 US 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964), through United States v Harris, 403 US 573; 91 S Ct 2075; 29 L Ed 2d 723 (1971), lay down a double requirement for information from anonymous informants. There must be reason to conclude that the informant was credible and that his information was acquired in a reliable manner. Contrary to the dissenting opinion, we believe that this tip failed both requirements.
The only evidence on the district court record that the informant was a credible source was the police detective’s statement, "[i]t worked out pretty good before, sir”. There are no specifics whatsoever. It is only a translated version of "reliable source”. While the informant may in fact have provided much reliable information in the past, the prosecutor failed to make the necessary showing._
Moreover, there is nothing in the tip, nor in Detective Parks’ additional testimony at trial, to indicate that the information was gained in a reliable fashion. The corroborated details suggest that the informant may have seen the car and known of its destination, but none of these details indicate how the informant could forecast that the defendant made the trip to engage in a criminal transaction or more importantly, who the driver of the vehicle or defendant would be. While corroboration of many physical details would lend credence to a tip that a suspect was carrying contraband, since it would infer that the informant had gained the information by personal observation, cf. People v Chaney, 52 Mich App 474; 218 NW2d 121 (1973), lv den, 390 Mich 813 (1973), corroboration of physical detail does not infer that the informant learned of the suspect’s criminal plans in a reliable manner. Indeed, the dissenting opinion admits that the part of the tip which remained uncorroborated was the only part of the tip which indicated that a criminal transaction was contemplated.
Nor did the observations of the police furnish sufficient other reason to arrest the defendant. Loading an automobile’s trunk and driving away are as consistent with innocent departure as they are with transportation of contraband.
We find the facts in People v Walker, 64 Mich App 138; 235 NW2d 85 (1975), lv granted, 396 Mich 812 (1976), indistinguishable, and agree with that result. The evidence should have been suppressed and the charge dismissed.
D. C. Riley, J., concurred.
People v Olajos, 397 Mich 629; 246 NW2d 828 (1976), allows reference to trial testimony only if the trial court has allowed the defendant to reopen the suppression issue by a renewed motion during the trial. In this case, Detective Parks’ trial testimony was not in response to a renewed suppression motion; it came about merely as part of the prosecution’s case.
It should be further noted that the basis of the informant’s reliability was even a further step removed from the arresting officer. This "reliable tip” was received by a detective of the Genesee County Sheriffs Department, who, in turn, phoned the Oakland County Sheriffs Department, the arresting agency.
Although the people claim probable cause to arrest based upon the given facts, it is interesting to note that the wife of the defendant was with him at all times and, in fact, was the driver of the vehicle. There apparently was hot, however, sufficient probable cause to arrest her as she was released at the scene and not subsequently charged. | [
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M. F. Cavanagh, P. J.
Defendants Tyrone Norris and Clyde Poole were jury-convicted of unarmed robbery, MCLA 750.530; MSA 28.798, on June 16, 1975. On July 1, 1975, defendant Norris was sentenced to 5 to 15 years in prison; defendant Poole was sentenced to 3-1/2 to 15 years in prison. Both appeal from their convictions as of right.
Although the defendants raise several issues on appeal, we find that treatment of a single issue is dispositive. The prosecutor’s attempt to impeach the defendants’ trial testimony by their silence during and after their arrest impermissibly burdened their state and Federal Constitutional rights to remain silent.
At their trial, both defendants Poole and Norris testified that they had alibis for the night of the robbery. During the prosecutor’s cross-examination of defendant Poole, the following exchange occurred:
"Q Apparently, you were arrested about five days after this happened?
"Q Did you tell the police at that time where you were at?
"A I can’t remember.
"Q Can’t remember?
"A At the time, I couldn’t.
"Q Excuse me?
"A They really didn’t ask me.
"Q You’re sure about that?
"A Yes.
"Q Did you ever tell anybody you were at home, instead?
"A Sir?
"Q Did you ever tell anybody that you were at home instead of the Mark Three?
"A No, sir.
"Q Never told anybody that?
"A No, sir.
"Q You’re under oath.
"A Yes.”
On cross-examination of defendant Norris, the prosecutor inquired whether he had discussed his alibi with anyone after he was arrested. Defendant Norris answered no.
Although no objections were made at the time of these questions, the next morning counsel for defendant Norris moved for a mistrial on the basis of the prosecutor’s reference to Mr. Norris’ failure to make a statement to the police. The prosecutor argued that this line of questioning had been proper cross-examination. The trial court refused to grant a mistrial.
Again during the final argument to the jury, the prosecutor raised the failure of defendant Norris to come forward to the police with his alibi.
Although defendant Poole failed to object to the prosecutor’s action at trial, counsel for defendant Norris placed the question squarely before the trial judge. The offending cross-examination occurred late in the day, shortly before recess. Defense counsel made his mistrial motion at the commencement of proceedings the next morning. Even total failure to object at trial will not preclude this Court from review of an alleged infringement of the constitutional right to remain silent. People v Gant, 55 Mich App 510; 222 NW2d 784 (1974), People v Miller, 49 Mich App 53; 211 NW2d 242 (1973). The issue of the defendants’ right to remain silent was sufficiently preserved for our review.
Michigan courts have repeatedly held that an accused may not be impeached by evidence of his silence at the time of arrest or during custody. People v Bobo, 390 Mich 355; 212 NW2d 190 (1973), People v Bigge, 288 Mich 417; 285 NW 5 (1939). "To allow the prosecution to use the silence of an accused against him would place an impermissible penalty upon the exercise of his privilege against self-incrimination.” People v Swan, 56 Mich App 22, 31; 223 NW2d 346, 351 (1974). The single exception to the rule exists if the accused makes allegations on direct examination as to what was said or not said at the time of arrest or during custody. People v Graham, 386 Mich 452; 192 NW2d 255 (1971), People v Perez, 66 Mich App 685, 689; 239 NW2d 432 (1976). Neither defendant in this case testified on direct examination as to any statements made in custody.
Although the state argues that the prosecutor’s questions did not infringe the defendants’ rights, that argument comes years too late. The pattern of questions condemned in People v Bobo, supra, closely resembles what transpired in this trial:
"'Q. Did you say anything to him [the questioning police officer] about the two other men running on the street?
" 'A. He didn’t ask me.
" 'Q. I said did you say anything to him?
" A. No, I didn’t.’ ”
390 Mich at 358; 212 NW2d at 192, fn 3.
The sole remaining issue is whether this error requires reversal. Michigan courts recognize a two-step test of reversible constitutional error:
"The first step in determining whether an error is harmless is thus to ascertain whether it is unduly 'offensive to the maintenance of a sound judicial process’. An error may be intolerably offensive if it is deliberately injected into the proceedings by the prose cutor, if it deprives the defendant of a fundamental element of the adversary process, or if it is of a particularly inflammatory or persuasive kind.” People v Swan, 56 Mich App 22, 31-32; 223 NW2d 346, 351-352 (1974).
If the error does not constitute an affront to the integrity of the trial process, "we must also be able to say that it was 'harmless beyond a reasonable doubt’ ”. 56 Mich App at 33; 223 NW2d at 352. Although People v Swan held the error in that case harmless beyond a reasonable doubt, this Court warned that such errors would not be condoned in the future:
"We will find it difficult in the future to believe that prosecutors and police are ignorant of the well-established principle of law which forbids comment upon an accused’s silence or that clear violations of the principle arise from inadvertence. Deliberate violations of this rule may lead us to reverse convictions even where evidence might be overwhelming. The prosecutor who comments, or elicits comment, on a defendant’s silence thus risks the loss of a perfectly good case for no reason.” 56 Mich App at 35; 223 NW2d at 353.
We cannot find the errors in this case, harmless. The trial of these defendants took place in June of 1975, a year after Swan and two years after Bobo. The prosecutor’s comments were clearly directed at exposing the defendants’ silence while in custody, in order to cast doubt on their alibis. Unlike other cases in which similar errors were held harmless, the testimony regarding the defendants’ silence was not obtained by inadvertence, nor was it relevant to an important issue other than guilt. Even on appeal, the state refuses to admit that error occurred. We conclude that the prosecutor’s conduct was either deliberate or flagrantly negligent. Other cases have found such conduct intoler ably offensive to the maintenance of a sound judicial process, and we agree. People v Parks, 57 Mich App 738; 226 NW2d 710 (1975), People v Dunn, 46 Mich App 226; 208 NW2d 239 (1973). As this Court foresaw in 1972,
"Continued expansion of the harmless error rule will merely encourage prosecutors to attempt to get such testimony in, since they know that, if they have a strong case, such testimony will not be considered to be reversible error, yet if they have a weak case, they will use such testimony to buttress the case to gain a conviction and then hope that the issue is not raised on appeal.” People v Jablonski, 38 Mich App 33, 39; 195 NW2d 777 (1972).
(Indeed, on this appeal, defendant Poole failed to raise the error.) We believe that the Supreme Court in People v Bobo clearly stated its intention to eliminate references at trial to the accused’s exercise of his constitutional right to silence.
Reversed.
R. M. Maher, J., concurred. | [
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R. H. Campbell, J.
These cases are consolidated appeals of right from judgments entered in Oakland County Circuit Court in which a jury returned a verdict in favor of the plaintiff against defendant Nettleship Company in the amount of $75,000 and a verdict in favor of defendant Pacific Indemnity Company of no cause of action. Plaintiffs motions for additur, judgment n. o. v. or a new trial were all denied by the trial court as well as defendant Nettleship Company’s motion for judgment n. o. v. and for a new trial. Plaintiff appeals from the judgment of no cause of action entered on behalf of Pacific Indemnity Company and files a cross-appeal against defendant Nettle-ship Company claiming that the trial court erred in instructing the jury on damages. Defendant Nettleship appeals from the $75,000 judgment entered against it.
This case arises out of a malpractice suit brought against the plaintiff by a third party which resulted in an $82,000 judgment against plaintiff in August 1972. The plaintiff had malpractice insurance coverage of $10,000 with defendant Pacific Indemnity Company which he had purchased through defendant Nettleship Company, an insurance agency which specializes in professional malpractice insurance and was the sponsored insurance representative of the National Osteopathic Association. Proofs indicated that the plaintiff had been a client of defendant Nettleship Company for approximately 30 years. Plaintiff claimed that he never received any advice from defendants Nettleship Company or Pacific Indemnity Company indicating that his coverage was inadequate or that he should have more coverage. He submitted through the testimony of an insurance agent that $10,000 coverage was inadequate and that it was customary for insurance agents to advise and bring to the attention of their clients both the availability of additional insurance and the adequacy of insurance coverage. Thus, plaintiff claims that the defendants should pay for the excess judgment over his insurance coverage of $10,000.
The plaintiff also claimed that the attorney for defendant Pacific Indemnity Company promised him that they would appeal the jury verdict but they did not do so and, therefore, he had to hire an attorney to file a delayed claim of appeal which was denied by both the Michigan Court of Appeals and the Michigan Supreme Court. He sought damages in the amount of $12,000 to cover his attorney fees and costs in attempting to secure an appeal of this matter.
The insurance policy issued by Pacific Indemnity contained a clause which provided that it would defend any suit brought against the insured. The trial court, based upon the defendant insurance company’s interpretation of the policy that there were no reasonable grounds to appeal, instructed the jury that they were not to consider as items of damages the cost of an appeal, attorney fees or mental distress. The first issue is whether the trial court erred in concluding that the promise to defend provision of the insurance policy did not include the duty to appeal from an adverse decision, where the verdict exceeds the limit of the policy and the insurer believes that there are no reasonable grounds upon which to base an appeal.
We have found no Michigan cases on this point but the issue has been considered in other jurisdictions. In Kaste v Hartford Accident & Indemnity Co, 5 App Div 2d 203; 170 NYS2d 614 (1958), the court stated that it would follow the rule that the duty to defend was broader than the duty to pay. The covenant to defend would include the duty to prosecute an appeal where there were reasonable grounds for appeal. Judge Jerome Frank concurred in the result but noted his disagreement with the majority view that reasonable grounds had to justify the appeal. He noted that nothing in the insurance contract conditioned the obligation of the insurer upon such factor or limited its obligation only to supplying a defense up to the time of trial. As Judge Frank noted:
"By the terms of its policy, the defendant assumed the absolute duty to defend, for there are no words qualifying or limiting the pertinent paragraph in the insurance contract issued by it. Such a contract under established rules must, in case of doubt or ambiguity, be strictly construed against the insurer, which is responsible for the language used in the policy.
"It has frequently been stated that the duty to defend is broader than the duty to pay (Goldberg v Lumber Mutual Casualty Ins. Co. of New York, 297 N.Y. 148, 77 N. E. 2d 131). Moreover, the duty to defend is indivisible and it requires the carrier to conduct the whole defense and, if necessary to vindicate the rights of the insured, to prosecute an appeal (Mannheimer Bros. v Kansas Casualty & Surety Co. 149 Minn. 482, 184 N.W. 189).
"Where the insurance company, as here, assumes a single obligation to defend its assured, I see no reason to draw a distinction between defense prior to or on appeal, in the absence of language in the contract expressing such an intention. Nor can I find justification for implying conditions as to the prosecution of an appeal not expressed within the ambit of the policy.”
See also, Reichert v Continental Insurance Co, 290 So 2d 730, 733-734 (La App, 1974).
In Michigan, it has been the law that the duty to defend a suit is independent of the limits of the policy coverage. City Poultry & Egg Co v Hawkeye Casualty Co, 297 Mich 509; 298 NW 114 (1941). The defendant, Pacific Indemnity, asserts that the "duty to defend” on appeal should be conditioned upon whether the insurer reasonably believes that there are grounds for an appeal. The primary problem with this approach is that only if the insurance company declines to appeal, the insured seeks its own counsel and appeals alone, and wins, will it be absolutely determined that the insurance company erred and that reasonable grounds existed. This places a harsh burden upon the insured, particularly in a case such as this, where the limits of the policy are substantially below the amount of the judgment. Moreover, the mere fact that one appeals and loses does not necessarily imply that the grounds for appeal were not reasonable.
Generally, ambiguous language in insurance contracts must be construed against the insurance company and most favorably to the premium-paying insured. Zurich Insurance Co v Rombough, 384 Mich 228; 180 NW2d 775 (1970). The insurance company did not limit its duty to defend, as it could, and the insured could reasonably expect the company to take an appeal from an adverse judgment. Thus, we hold that an insurance company will be expected to proceed with an appeal, if requested by an insured, if it writes a broad "duty to defend” clause into its insurance contracts. To hold otherwise could mean that if plaintiff appealed in a malpractice suit in which judgment was in excess of the policy limits, the insurance company could pay into court the limits of its policy and the insured would be left without any assistance from the insurance company. The insured is entitled to be defended by the insurer at both the trial level as well as the appellate level unless otherwise specifically set forth in the contract of insurance. The trial court erred and thus, the judgment of no cause of action on behalf of Pacific Indemnity must be reversed.
As a result, the defendant Pacific Indemnity is liable for any consequential damages due to their breach of this duty. This includes the cost of appeal and reasonable attorney’s fees. Palmer also claims damage due to mental distress inflicted because of Pacific Indemnity’s failure to appeal this case.' The question is whether such damages, if proved, are compensable. Pacific Indemnity claims that since plaintiff is complaining about a breach of contract, he cannot recover the tort damages of mental distress.
In Stewart v Rudner, 349 Mich 459, 471; 84 NW2d 816 (1957), the Court stated:
"The cases to which reference was just made involve a clear exception, to the 'rule’ (if there now is any such) that damages for mental suffering are not recoverable in contract actions. They are. When we have a contract concerned not with trade and commerce but with life and death, not with profit but with elements of personality, not with pecuniary aggrandizement but with matters of mental concern and solicitude, then a breach of duty with respect to such contracts will inevitably and necessarily result in mental anguish, pain and suffering. In such cases the parties may reasonably be said to have contracted with reference to the payment of damages therefor in event of breach. Far from being outside the contemplation of the parties they are an integral and inseparable part of it.”
The mental anguish associated with the case at bar is not as extreme as that in Miholevich v Mid-West Mutual Automobile Insurance Co, 261 Mich 495; 246 NW 202 (1933), but is similar. In Frishett v State Farm Mutual Automobile Insurance Co, 3 Mich App 688; 143 NW2d 612 (1966), this Court held that the insurance company was liable for damages associated due to mental anguish for among other things, unjustly withholding benefits. Damages for mental suffering were allowed in McCune v Grimaldi Buick-Opel, Inc, 45 Mich App 472; 206 NW2d 742 (1973), where an employee sued his employer for the employer’s failure to maintain a health and medical insurance policy. Such insurance was characterized as a "matter of 'mental concern and solicitude’ ”. Id, p 478. In the case at bar, the mental distress of failing to appeal a severe malpractice judgment considerably in excess of the policy limits would be considered foreseeable and would be a proper matter for the jury to consider.
The defendant-appellant Nettleship Company argued that the trial court should have directed a verdict in favor of defendant-appellant as it had no duty to advise the plaintiff as to adequate malpractice coverage, either by law or because of a special relationship with the insured. The trial court properly instructed the jury that there was no duty of an insurance agent to advise his client as to adequacy of coverage, but the trial court told the jury that such an issue would exist only if they found that, through a special relationship, plaintiff should have been informed by defendant Nettle-ship Company as to the adequacy of his malpractice coverage. In this case, there was evidence of a special relationship between Nettleship and the plaintiff Palmer. The defendant was the sponsored insurance representative of the National Osteopathic Association and held itself out as an expert in the field of medical and professional malpractice insurance. Palmer had been a client for approximately 30 years. Given this, a fact situation was created regarding the question whether a special relationship existed and it would have been improper for the trial court to grant a directed verdict in favor of Nettleship.
Defendant-appellant Nettleship Company claims that the trial court erred in allowing the plaintiff to present testimony regarding the usual custom and practice within the State of Michigan concerning adequate insurance coverage. This Court has recognized that custom and usage may create a duty under special and limited circumstances— where such custom or usage is "certain, definite, uniform and notorious”. See St Gabriel Parish Credit Union v Barnett Pontiac, Inc, 16 Mich App 1, 5; 167 NW2d 459 (1969). This testimony did not constitute error.
There appears to have been introduced into evidence insurance pamphlets and other docu ments to support the expert witnesses’ testimony. This Court does not find that it was an abuse of discretion for the trial court to admit these pamphlets and writings into evidence since the exhibits pertained to the witnesses’ limited testimony on which he believed to be the customary practices among Michigan insurance agents.
The defendant-appellant also claims that the trial court erred by refusing to instruct the jury as to the agency status as between defendant Nettle-ship Company and Pacific Indemnity Company. This Court is of the opinion that the trial court should have instructed the jury as to the agency relationship between defendant Nettleship Company and defendant Pacific Indemnity Company. As this Court stated in State Automobile Mutual Ins Co v Babcock, 54 Mich App 194, 201-202; 220 NW2d 717 (1974):
"Insurance companies are bound by all acts and contracts made by their agents which are within the apparent scope of authority conferred upon them; such authority, while not actually granted, is that which insurance companies knowingly permit agents to exercise or which is held out to the public.” (Citations omitted.)
As a general rule, knowledge of, or notice to, an insurance agent as to a matter within the scope of his authority, and which is acquired while the agent is acting within the scope of his authority, is chargeable to the insurer. Wendel v Swanberg, 384 Mich 468; 185 NW2d 348 (1971). One of the issues in the case at bar was whether or not the defendant Nettleship Company was negligent in not advising plaintiff of inadequate coverage. It would appear that the principal would be liable for negligence on the part of his agent even though the plaintiff need not elect which defendant to hold liable in case of a disclosed principal. See National Trout Festival v Cannon, 32 Mich App 517, 520-521; 189 NW2d 69 (1971), Cronk v Chevrolet Local 659, 32 Mich App 394, 401; 189 NW2d 16 (1971). Thus, there was reversible error committed when the trial court did not instruct the jury as to the principal-agent relationship.
Palmer finally asserts on cross-appeal, that the trial court erred in failing to allow the jury to consider damages due to mental distress. As we have previously concluded, mental damages, if proved, can be considered by the jury. However, it is impossible for us to determine what additional damages would be and thus, the judgment must be reversed. Krajenke v Preferred Mutual Insurance Co, 68 Mich App 211; 242 NW2d 70 (1976).
For the reasons herein stated the judgments are reversed and the matter is remanded to the trial court for a new trial as to all of the parties. Costs to be awarded to plaintiff-appellant. | [
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Quinn, J.
Defendant appeals from a circuit court judgment which, on review of a Teacher Tenure Commission decision, required defendant to conduct hearings prior to recalling teachers who were laid off because of reduction in staff due to economic reasons. We reverse for two reasons:
1. The teachers involved, Chester and Glassgold, were not qualified for the positions to which they could have been recalled.
2. There is no provision in the teacher tenure act for the hearing that was ordered.
MCLA 38.105; MSA 15.2005 provides:
"Any teacher on permanent tenure whose services are terminated because of a necessary reduction in personnel shall be appointed to the first vacancy in the school district for which he is certified and qualified.”
It is undisputed on the record that both Chester and Glassgold were tenured and certified, but it is also undisputed on the record that neither was qualified for the positions to which they could have been recalled. The Tenure Commission so found on undisputed testimony and the trial court and this Court are bound by that finding, Const 1963, art 6, § 28. It is apparent that the trial judge ignored this constitutional limitation on his authority when he stated:
"In looking to the teaching certificates of Chester and Glassgold one finds that both seem to be qualified to teach a number of different grades.
"It would seem that the 'lay-off of these two teachers without a recall based on their qualifications would be equatable to a discharge. Because of the personal nature of this alleged lack of qualification and the possible damage that can be done to the two teachers, Chester and Glassgold should be allowed the same type of hearing given in the case of discharge or demotion under MCLA 38.101 [MSA 15.2001] and 38.104[MSA 15.2004].”
In stating that there is no provision in the teacher tenure act for the hearing that was ordered, we are not unmindful of Freiberg v Board of Education of Big Bay De Noc School Dist, 61 Mich App 404; 232 NW2d 718 (1975). That case is totally inapposite to the question involved in this case. Involved here is a hearing before the local school board. In Freiberg, the hearing involved was before the Tenure Commission. In Freiberg, the issue was whether the Tenure Commission had jurisdiction to hold a hearing involving budgetary matters when the teacher involved claimed that his layoff purportedly because the financial condition of the district required staff reduction was in fact a subterfuge to get rid of him. Here the issue is whether there is any statutory requirement that a local school board hold a hearing on the qualifi cations of a teacher before not recalling him from layoff due to necessary staff reduction.
MCLA 38.105 is the last section of article IV of the teacher tenure statute. That article deals with discharge, demotion or retirement and requires the local school board to hold hearings in cases of discharge and demotion. We read MCLA 38.105 as expressing a legislative intent that termination because of necessary staff reduction is not discharge or demotion requiring a hearing. If the Legislature intended otherwise, it would have provided for such a hearing. As it stands, rehiring after layoff because of necessary staff reduction is left to the judgment of the local school board.
Reversed and the decision of the Tenure Commission is reinstated. No costs as a public question is involved.
T. M. Burns, P. J., concurred. | [
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Danhof, C. J.
Defendant was convicted by a jury of conspiracy to obtain over $100 by false pretenses, MCLA 750.157a; MSA 28.354(1), and of obtaining over $100 by false pretenses, MCLA 750.218; MSA 28.415. Defendant was fined $5,000 and sentenced to two years probation on count 1 and sentenced to two years probation, with 90 days to be served in the county jail, on count 2. Defendant now appeals by right, raising four issues, only one of which requires discussion.
Defendant contends that the prosecutor’s cross-examination concerning defendant’s refusal, during police interviews, to explain certain gratuities paid to him by his codefendant violated defendant’s Fifth and Sixth Amendment rights. The gratuities were allegedly paid to defendant in return for his signatures on invoices for materials never delivered by codefendant Kilmer to defend ant’s employer. The interviews were conducted for the purpose of inducing defendant to cooperate with the police by formal offers of immunity. The interrogating officer read defendant his Miranda rights and the interview was conducted at the security office on defendant’s employer’s premises.
Defendant did not testify concerning the interviews on direct examination. On cross-examination the prosecutor began questioning defendant closely concerning his refusal to explain the gratuities to Detective Flesher, who conducted the interviews. Defendant testified that when Detective Flesher asked him to explain the gratuities at the September 20, 1973, interview he stated that "I would be glad to cooperate with him in any way I could, but I had a responsibility to my family to talk to my family lawyer in regards to my responsibility and legal rights, and I asked him if he would give me the opportunity to talk to my lawyer regarding this matter”. Not satisfied with this response, the prosecutor pressed defendant, asking whether his refusal to explain the gratuities was consistent with his previously professed dedication to his job:
"Q. If that was said, do you think that is being a dedicated man, dedicated to his job?
"A. I was dedicated, I was very much.
"Q. I’m not asking you whether you were, I am asking you if that type of response to a police officer investigating an alleged fraud is in keeping with the impression that you give with being a good company man.
’A. Like I told him, I had a responsibility to my wife and kids and they were the most—uppermost thing in my life and then the company.
“Q. I understand that.
'A. And, to me I had to check counsel and get his advise [sic] before I could go any further. I have a responsibility to my wife and my kids.
”Q. Let me ask you this, Mr. Hargrave—
"A. (Interposing) Yes, sir.
”Q. (Continuing) How does that responsibility and it is certainly a very correct responsibility, how does that responsibility interfere with your explaining to Detective Flesher why you received some two thousand dollars in checks?
’A. Well, can I state it this way, please.
"Q. The only thing I am asking you, if you would be responsive to the question, I want to know how your denial of explaining or refusing to explain to Detective Flesher the checks, how it interferes with your obligations to your family?
"A. I have always seen or heard like on television, like everyone else watches television, that people in similar cases like this, they always to seek any legal advice, and that’s in the rights that he read me, that you are entitled to this under, you know, this is guaranteed to you.
”Q. I understand that.”
To the contrary, the prosecutor apparently did not understand that; he persisted in asking defendant how his duty to his family could interfere with his "obligation” to "aid a police official in investigation”. Defendant answered that "I thought the rights that he read me intended what they said”, and that "my obligation was to provide for my family and he read anything you might say can be used against you, and I don’t remember all of the rights on the card or what he read word for word, I understood it, to me what it was at face value”.
After defendant admitted that he checked out of work for the day after the interview to seek his attorney’s advice, the prosecutor concluded with some pointed questioning:
"Q. Was it necessary to check out of work for the rest of the day to do that?
"A. Well, I called—
”Q. (Interposing) Was it of that immediate necessity?
"A. It scared the heck out of me; yes, I have never been up for anything like this, it scares the living pants off me.
"Q. But, you hadn’t done anything wrong.
'A. No.
”Q. You had to leave work and go see an attorney right away?
’A. I think it would frighten anyone.”
Defense counsel failed to object to this line of questioning, except on the ground that the question concerning defendant’s reason for refusing to explain the gratuities had been asked and answered.
The people argue on appeal that the cross-examination was proper to impeach defendant’s testimony that he was a loyal company man and that he did not believe he had violated company policy by accepting the gratuities, which he had admitted receiving. A defendant’s silence in the face of interrogation or accusation may not be used at trial, People v Dunn, 46 Mich App 226; 208 NW2d 239 (1973), and a "defendant’s refusal to speak during interrogation is admissible only to impeach his own inconsistent statements at trial”. (Emphasis added.) People v Graham, 386 Mich 452, 458; 192 NW2d 255 (1971). People v Shegog, 44 Mich App 230, 233-234; 205 NW2d 278 (1972). "The fact that a witness did not make a statement may be shown only to contradict his assertion that he did.” People v Bobo, 390 Mich 355, 359; 212 NW2d 190 (1973). The record is barren of any such assertion. When Detective Flesher revealed the purpose of the interview by confronting defendant with evidence that he had received gratuities from Kilmer, defendant refused to make any statement before consulting his attorney, as he was entitled to do.
The prosecutor’s cross-examination was improper; he elicited from defendant the facts that he had remained silent and sought counsel when asked to explain the checks. It does not answer to argue that the prosecutor was trying to impeach defendant’s testimony that he did not think he had violated company policy by accepting the gratuities. That testimony was not inconsistent with his only statement to Detective Flesher, that he would be glad to cooperate in any way he could, but that he wanted to consult his attorney first. Use of defendant’s silence at the interview to show that he did not regard the gratuities as proper at the time of the interview thus falls within the rule in Bobo; the fact that a witness did not make a statement may be shown only to contradict his assertion that he did; an assertion not present here.
We recognize that defendant was not technically under arrest nor in custody during the interview. It is obvious, however, that suspicion had focused on defendant. He was summoned to the security office, read his rights, and offered immunity at each interview. "Whether his silence was prior to or at the time of arrest makes little difference— the defendant’s Fifth Amendment right to remain silent is constant.” People v Bobo, supra, at 360. "Manifestly whenever a person is stopped for interrogation by the police, whether technically under arrest or not, the Fifth Amendment guarantees that his silence may not be used against him.” Id, 361.
Defense counsel’s failure to object does not preclude this Court from reviewing an alleged infringement of the constitutional right to remain silent. People v Gant, 55 Mich App 510, 513; 222 NW2d 784 (1974), People v Miller, 49 Mich App 53, 61; 211 NW2d 242 (1973). Nor can we conclude that the error was harmless, because it fails to pass muster under the inquiry that must precede that question. In People v Swan, 56 Mich App 22, 35; 223 NW2d 346 (1974), this Court said:
"We will find it difficult in the future to believe that prosecutors and police are ignorant of the well-established principle of law which forbids comment upon an accused’s silence or that clear violations of the principle arise from inadvertence. Deliberate violations of this rule may lead us to reverse convictions even where evidence might be overwhelming. The prosecutor who comments, or elicits comment, on a defendant’s silence thus risks the loss of a perfectly good case for no reason.”
Under the circumstances of this case, we find that the prosecutor’s cross-examination was "offensive to the maintenance of a sound judicial process”. People v Williams, 63 Mich App 531, 536; 234 NW2d 689 (1975). See People v Mobley, 390 Mich 57, 65; 210 NW2d 327 (1973).
Reversed and remanded.
The evidence against defendant was less than overwhelming. The investigation included an audit of codefendant Kilmer’s records that consumed 1-1/2 man years, but a search through the invoices signed by defendant that took the people’s principal witness "days” produced only five allegedly improper invoices. At trial, Detective Flesher admitted that he had since learned that the materials listed on one of these invoices had in fact been delivered to defendant’s employer. | [
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N. J. Kaufman, J.
Plaintiff Lillian Warvel received a whole blood transfusion August 18, 1971, in the course of childbirth at defendant Providence Hospital. On December 24, 1971, she was diagnosed as having serum hepatitis. A complaint was filed against Providence Hospital May 15, 1973, in Oakland County Circuit Court seeking damages for breach of express and implied warranties that the blood was of merchantable quality and reasonably fit for transfusion and, additionally, for loss of consortium.
In an amended complaint filed October 2, 1974, plaintiffs added as parties defendant Michigan Community Blood Center and the American Red Cross Southeastern Michigan Chapter and also added, against all defendants, counts of negligence and failure to inform of the risks inherent in blood transfusions.
In its answer, defendant Providence Hospital alleged as an affirmative defense that furnishing blood is the rendering of a service, and does not constitute a sale to which warranties attach, relying on the blood banking and transfusion act, 1967 PA 174, MCLA 691.1511; MSA 14.528(1). Defend ants filed a motion for accelerated judgment on the same basis. As applicable to this case, prior to its amendment in 1973, the act provides:
"The procurement, processing, storage, distribution or use of whole blood, plasma, blood products, and blood derivatives, for the purpose of injecting or transfusing them, or any of them, into the human body for any purposes whatsoever where there is no medical test to determine the fitness of such whole blood, plasma, blood products, or blood derivatives, is the rendering of a service and does not constitute a sale by any person participating therein, whether or not any remuneration is paid therefor.”
In response to the motion for accelerated judgment, plaintiffs requested an evidentiary hearing on the question whether in 1971 medical tests existed "to determine the fitness” of whole blood. Pursuant to an order of February 5, 1975, an evidentiary hearing was authorized, to be accomplished by deposing four expert medical witnesses. Subsequently, these depositions were submitted to Judge Hampton and oral argument on the motion for accelerated judgment was heard by Judge Hampton on July 2, 1975.
After reviewing the depositions and listening to arguments, Judge Hampton rendered his decision. The judge concluded that, based upon his view of the statute, it was the trial judge’s duty to determine what is a test under the statute and whether one existed; once it was concluded that there was a test in existence, it would then be a question for the jury to determine whether there existed an implied warranty in this particular instance and, if so, whether it was breached. However, the judge concluded that there was no recognized medical test known at the time of the transfusion which would indicate with any degree of reliability the presence of hepatitis in the blood. Accordingly, he granted partial accelerated judgment on the warranty counts. Plaintiffs appeal from this decision by leave granted.
Initially, we note that the trial judge’s characterization of his decision as an accelerated judgment is erroneous. "It was not the intention of the drafters in drafting GCR 1963, 116.1 to 'enlarge or diminish’ the defenses available under Court Rule No. 18 (1945). Motions brought pursuant to GCR 1963, 116.1 were intended to be restricted to the specific claims set forth in the rule.” (Citations omitted.)
It is obvious that the defendants’ motion in the instant case does not fit within the purview of any of the specific provisions of GCR 116. Instead, it properly should have been labeled as a partial summary judgment because "there is no genuine issue as to any material fact, and the moving party is therefore entitled to judgment as a matter of law”. GCR 1963, 117.2(3). "Although the trial judge granted the motion on the basis of accelerated judgment, we may still consider whether the summary judgment would be appropriate * * * , since there is no prejudice to the * * * [plaintiff].”
The standard of review which we are to employ when reviewing the grant of summary judgment under GCR 1963, 117.2(3) has been succinctly stated in Rizzo v Kretschmer, 389 Mich 363, 371-372; 207 NW2d 316 (1973):
" 'When summary judgment is claimed for lack of factual merit, the court must be careful not to substitute a summary hearing for a trial. The trial may be avoided only if the record presented at the hearing shows that, * * * ; or (2) an essential element of proof of the claim or defense cannot be supplied.
* * *
" 'Motions grounded upon sub-rule 117.2(3) must be supported by affidavits. The purpose of the affidavit is to assert the dispositive fact or facts upon which the moving party claims no genuine dispute exists. Although the Rule does not require opposing affidavits, it is the obligation of the opposing party to make a showing by opposing affidavits, testimony, depositions, admissions or documentary evidence on tile that a genuine issue of disputed fact does exist as to the questioned element of the claim or defense. Durant v. Stahlin, 1965, 375 Mich. 628, 135 N.W.2d 392.
* * *
" 'In motions under sub-rule 117.2(3), the court must look beyond the pleadings to determine whether a question of fact exists. The supporting affidavit, which must be filed with such a motion, identities those facts which may appear to be controverted in the pleadings but which, the mover asserts, cannot be genuinely disputed. The party opposing the motion must then come forward with a showing that there is evidence to make an issue on which a dispute truly exists. If no such showing is forthcoming, summary judgment is granted. See Durant v. Stahlin, 1965, 375 Mich. 628, 135 N.W.2d 392; Podvin v. St. Joseph Hospital, 1963, 369 Mich. 65, 119 N.W.2d 108.
* * *
" '[T]he test more carefully stated would be whether the kind of record which might be developed, within the limits indicated by the pleadings and the affidavits or other material supporting and opposing the motion for summary judgment, interpreted to give the benefit of any reasonable doubt to the opposing party, would leave an issue upon which reasonable minds might differ or upon which a directed verdict would be proper.’ (Emphasis added.)’’
With this standard in mind, let us examine the correctness of the trial judge’s ruling. We think the crucial question on this appeal is what interpretation should be placed on the language "medical test to determine the fitness of such whole blood”. While we do not necessarily endorse all of the reasoning expressed by the trial judge, we agree with the result he reached.
The trial judge was of the opinion that the phrase "medical test” meant a laboratory test. Thus, he concluded that the depositions, which stated that the lab tests were, at best, only 45-60% effective, hardly amounted to the type of a medical test contemplated by the Legislature. Plaintiffs claim that the trial judge erred in not considering the testimony in the depositions that shows with screening of blood donors, through interviews and physical examinations in conjunction with the blood tests, the effectiveness of hepatitis detection is increased to somewhere in the 90% range. It is plaintiffs’ position that this amounts to a medical test under the statute. Moreover, it is contended that whether such a test exists is a question of fact for the jury not, as the trial judge determined, a preliminary question of law for the judge. We disagree.
We perceive that the proper question for review may be stated thus: Even if plaintiffs’ assertion that the trial court erred in excluding pre-screening devices is accepted as true, does this qualify as a proper medical test under the statute. We answer this question in the negative.
In reaching this decision, we are, of course, mindful of this Court’s responsibility, when interpreting controverted statutory language, to effectuate the Legislature’s intent. Aikens v Department of Conservation, 387 Mich 495; 198 NW2d 304 (1972). To properly determine the meaning to be accorded to the disputed language, we think guidance may be found by resorting to decisions of the appellate courts of this state which have dealt with the issue of when the results of scientific or medical tests are admissible in evidence.
In People v Morse, 325 Mich 270, 273; 38 NW2d 322 (1949), the Michigan Supreme Court stated the critical factor which must be shown prior to admitting into evidence scientific test results is whether the record shows a general scientific recognition that the scientific device possesses efficacy. See also, People v Becker, 300 Mich 562; 2 NW2d 503 (1942), and People v Kozar, 54 Mich App 503; 221 NW2d 170 (1974), Iv den 392 Mich 819 (1974). Moreover, they stated a warning that the "accuracy of [these tests] can scarcely be determined by a jury on the basis of complicated, scientific testimony concerning the theory and operation of the devices in the face of a difference of scientific opinion as to their accuracy”. Morse, supra, at 274.
We are of the view that the Legislature heeded the wise counsel of the Court in Morse and envisaged a medical test which met the requirement set forth above and, moreover, intended that this was a preliminary question of law for the judge. Thus, we must determine from the evidence adduced by way of depositions in the court below whether any test, or battery of tests, at the time this injury occurred had attained a general scientific recognition for accuracy. Clearly, the answer is no.
It was undenied by all the expert witnesses that there were tests which measured the fitness of whole blood. However, it was conceded, even by plaintiffs’ experts, that no test had demonstrated reliability sufficient to have achieved general scientific acceptance for its accuracy. For this reason, we affirm the decision below. Costs of this appeal to defendant.
Stewart v Troutt, 73 Mich App 378, 382; 251 NW2d 594 (1977).
Stewart, supra, at 383. | [
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Per Curiam.
After being convicted, on his plea of guilty, of attempting to carry a concealed weapon,* defendant appeals as of right. For the reasons set forth below, we affirm.
I.
Because defendant initially challenges the propriety of his plea based upon his view that the plea was accepted without either his being fully represented by counsel or the inclusion of his waiver of the right to counsel, it is necessary to set forth in some detail the factual setting upon which his claim is based.
Prior to trial, defendant’s court-appointed counsel proffered a motion to withdraw as counsel. At the hearing on this motion, defendant stated his displeasure with present counsel and his desire to either represent himself or seek retained counsel of his own choosing. After a full hearing on this matter, the trial judge granted the motion in part; the order providing that counsel be retained in an advisory capacity only. And, to further complicate matters, defendant never retained counsel, nor did he explicitly waive his right to counsel at the plea-taking.
It is strenuously urged that upon these circumstances the plea was per se invalid. We decline to accept this reasoning and feel constrained to examine the situation more closely.
There is, to be sure, an order contained in the record which limits counsel to an advisory capacity. This would be a serious debility for a plea acceptance in most cases. Here, however, we do not think undue focus should be placed upon this factor. To weigh this factor as defendant desires, would be to force this Court to don appellate blinders and ignore what actually transpired in the court below.
A review of the record shows that defendant was accorded full and effective representation. For example, subsequent to the above order, defense counsel requested an adjournment which was granted. Thereafter, plea negotiations were entered into by him on defendant’s behalf. These negotiations eventually resulted in the reduction of the original charge of carrying a concealed weapon to attempted carrying a concealed weapon. At the taking of the plea, defense counsel participated fully and advised the court that he had consulted with the defendant regarding the plea and thoroughly informed him of his rights and options. Moreover, he participated at sentencing and, again, fully represented the defendant’s interests. Surely, from these facts, we can hardly conclude that the defendant was denied effective assistance of counsel. Accordingly, we find no reversible error was occasioned here.
II.
Next, defendant attempts to escape his conviction by arguing that the trial court lacked jurisdiction to accept defendant’s plea of guilty where, we are told, there was insufficient evidence presented at the preliminary examination to bind defendant over for trial.
Defendant embraces the following language in People v Alvin Johnson, 396 Mich 424, 444; 240 NW2d 729 (1976), for the proposition that this particular error is not waived by a plea of guilty:
"Certainly it is true that those rights which might provide a complete defense to a criminal prosecution, those which undercut the state’s interest in punishing the defendant, or the state’s authority or ability to proceed with the trial may never be waived by guilty plea. These rights are similar to the jurisdictional defenses in that their effect is that there should have been no trial at all. The test, although grounded in the constitution, is therefore a practical one. Thus, the defense of double jeopardy, those grounded in the due process clause, those relating to insufficient evidence to bind over at preliminary examination and failure to suppress illegally-obtained evidence without which the people could not proceed are other examples.” [Footnote omitted.]
Because this dicta is at odds with prior decisions of both the Michigan Supreme Court and this Court, the prosecutor invites us to disregard the language’s clear import and follow prior precedent. We decline the invitation and, instead, find Johnson inapposite to the instant factual situation.
At trial, defense counsel brought a motion to dismiss the information based upon the same ground now urged on appeal. This motion, however, was never ruled on. There can be no doubt that if this case had proceeded to trial without the defendant ever pressing for such a ruling, the error would have been waived. People v Miniear, 8 Mich App 591; 155 NW2d 222 (1967), lv den, 380 Mich 758 (1968), People v Willis, 1 Mich App 428; 136 NW2d 723 (1965), lv den, 377 Mich 693 (1965). Inasmuch as Johnson grounded its decision on what the guilty plea itself waives, we do not think it applies where the inaction of the defendant causes the purported error to be waived. Indeed, were it otherwise, it would be most surprising; inevitably it would lead to either one of two results:
(1) Prior to accepting every plea of guilty each trial judge would have to review the magistrate’s decision to bind the defendant over, or;
(2) This Court would be placed in the position of the circuit court in reviewing preliminary examination findings despite the defendant’s failure to raise the issue below.
We are sure neither result was intended by Johnson. Therefore, we must and do affirm.
MCLA 750.92; MSA 28.287 and MCLA 750.227; MSA 28.424.
See People v Bobine, 371 Mich 593; 124 NW2d 795 (1963), and authorities contained therein. Also, People v McCurtis, 19 Mich App 353; 172 NW2d 510 (1969) and People v Robbins, 6 Mich App 633; 150 NW2d 175 (1967).
Although our disposition ultimately turns on our view that Johnson is inapplicable, we note that were we to accept defendant’s argument, our review shows us that there was sufficient evidence presented at the preliminary examination to bind defendant over for trial. | [
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R. M. Maher, J.
Plaintiff appeals from an order granting defendant’s motion for summary judgment. We reverse.
Plaintiff’s complaint alleged that she was an employee of Local 326 of the UAW from October 15, 1971 until January 3, 1972. She worked under the supervision of defendant, the president of the local. The complaint alleged that defendant discharged her as an employee on January 3, 1972, because she spurned his sexual advances. Plaintiff contends that her discharge was a tortious interference with her contract of employment for which defendant should be held liable.
Defendant’s answer denied that he had proposed sexual relations with plaintiff and asserted that plaintiff’s poor work led to her discharge. Defendant then moved for summary judgment under GCR 1963, 117.2(1), for plaintiff’s failure to state a claim upon which relief can be granted.
When summary judgment is sought on the grounds that plaintiff has failed to state a claim upon which relief can be granted, the legal sufficiency of the complaint is challenged. Borman's v Lake State Development Co, 60 Mich App 175; 230 NW2d 363 (1975). All well-pleaded allegations must be taken as true, and the pleadings alone should be considered. Wynn v Cole, 68 Mich App 706; 243 NW2d 923 (1976). Defendant submitted an affidavit with his motion under GCR 1963, 117.2(1), and in ruling for defendant the trial court accepted as true the statement in the affidavit that one of defendant’s functions as president of the local is the hiring and firing of secretaries. Utilization of this statement about defendant’s role in personnel decisions was error. Nevertheless, since plaintiff has not argued that the statement was not true or that the court should not have used it, but instead argues that it does not deprive her claim of legal validity, we choose not to reverse the order on this ground. To do so would be unnecessary, for we agree with plaintiff that, even if defendant was authorized to hire and fire employees of the local, her complaint stated a claim upon which relief could be granted.
Plaintiffs complaint did not allege that her employment was for any specified term. It can therefore be assumed that the employment relationship was terminable at will by either plaintiff or the local. Although there is some authority for holding that there can be no liability for interference with at will employment, see 1 Harper & James, The Law of Torts, § 6.7, p 494, the majority position is to the contrary. Prosser states:
"[T]he overwhelming majority of the cases have held that interference with employments or other contracts terminable at will is actionable, since until it is terminated the contract is a subsisting relationship, of value to the plaintiff, and presumably to continue in effect.” Prosser, Law of Torts (4th ed) § 129, pp 932-933.
An analogous question was presented in Truax v Raich, 239 US 33; 36 S Ct 7; 60 L Ed 131 (1915), in which Raich, an at will employee of Truax, challenged an Arizona statute which limited the employment of persons who were neither "native born citizens” of the United States nor qualified electors. In answer to the assertion that Raich had no property interest at stake, because he was an at will employee, Justice Hughes wrote:
"It is said that the bill does not show an employment for a term, and that under an employment at will the complainant could be discharged at any time, for any reason or for no reason, the motive of the employer being immaterial. The conclusion, however, that is sought to be drawn, is too broad. The fact that the employment is at the will of the parties, respectively, does not make it one at the will of others. The employee has manifest interest in the freedom of the employer to exercise his judgment without illegal interference or compulsion and, by the weight of authority, the unjustified interference of third persons is actionable although the employment is at will.” 239 US at 38; 36 S Ct at 9; 60 L Ed at 134.
This quotation from Raich v Truax supports the proposition that an at will employee has a significant interest in his continued employment that will be protected against illegal interference by third persons. It also points out the most difficult obstacle facing plaintiff as she attempts to convince this Court that she has stated a cause of action against defendant. The employment relationship between plaintiff and the local was terminated by defendant, but as president of the local it is one of defendant’s functions to both create and terminate employment relationships. The "freedom of the employer to exercise his judgment” is, in fact, defendant’s freedom to exercise his judgment to determine whether the local’s interests are served by continuation or termination of plaintiff’s employment. The local must, of necessity, act through its agents. However, defendant, as the local’s agent, is not protected by any privilege for acts he performs in his own interest rather than for his principal’s interests. See Restatement of Agency (2d), §§343, 345, comment b, and §346, comment b.
Morgan v Andrews, 107 Mich 33; 64 NW 869 (1895), the first Michigan case to recognize the tort of contract interference, discussed an analogous situation. Plaintiff Morgan, an inventor, had a contract with a corporation for construction of a machine to make dress stays. The contract gave the corporation the right to reject the machine should it be considered unsatisfactory. When the corporation rejected the machine, Morgan brought suit against defendant Andrews, a stockholder in the corporation and its manager. The Court rejected Andrews’ argument that his relationship with the corporation precluded any liability for his interference with the corporation’s contracts. Justice Long wrote:
"Counsel argue, however, that the defendant stands on the same footing with Glover & Bowling, because he was interested in the corporation, and was manager, and had an interest in the machine. There was no contract relation between plaintiff and the defendant. By the terms of the contract, it was the right of Glover & Bowling to reject the machine if not satisfactory; but defendant had no right to reject, or to unlawfully and maliciously interfere with the acceptance of it by Glover & Bowling. The fact that defendant, Andrews, had an interest in the business as a stockholder would give him the undoubted right to express his opinion freely about the machine; but this action is framed upon his malicious and willful fraud and deceit in inducing the rejection. It was upon these lines that the court below let the case go to the jury, as the court charged that defendant had the right to express freely his convictions about the machine, and could be held liable only on the theory that, without good cause, and actuated by ill will and malice towards plaintiff, he sought to injure him by inducing Glover & Bowling to reject the machine.” 107 Mich at 39-40. (Emphasis supplied.)
This 19th century case may be the only reported Michigan decision to consider a corporate official’s liability for interference with corporate contracts. More recent decisions from other jurisdictions indicate that the Court’s position in Morgan v Andrews remains good law.
Many cases begin their analysis by citing the English case, Said v Butt, 3 KB 497 (1920). In dictum, Judge McCardie of the English court offered this observation:
"But the servant who causes a breach of his master’s contract with a third person seems to stand in a wholly different position. He is not a stranger. He is the alter ego of his master. His acts are in law the acts of his employer. In such a case it is the master himself, by his agent, breaking the contract he has made, and in my view an action against the agent under the Lumley v Gye principle must therefore fail, just as it would fail if brought against the master himself for wrongfully procuring a breach of his own contract * * * .
"I hold that if a servant acting bona fide within the scope of his authority procures or causes the breach of a contract between his employer and a third person, he does not thereby become liable to an action of tort at the suit of the person whose contract has thereby been broken.” 3 KB at 505-506.
The privilege of corporate officials to interfere with the corporation’s contracts is sometimes viewed as absolute, see, e.g, Greyhound Corp v Commercial Casualty Insurance Co, 259 App Div 317; 19 NYS2d 239 (1940), but most often courts follow Said v Butt and recognize a limitation of "good faith” in their application of the corporate official’s privilege, as did Michigan’s Supreme Court in Morgan v Andrews, supra. E.g, Buckley v 112 Central Park South, Inc, 285 App Div 331; 136 NYS2d 233 (1954), Mendelson v Blatz Brewing Co, 9 Wis 2d 487; 101 NW2d 805 (1960), Ong Hing v Arizona Harness Raceway, Inc, 10 Ariz App 380; 459 P2d 107 (1969), Wampler v Palmerton, 250 Ore 65; 439 P2d 601 (1968). After stating that contract interference by a corporate director is privileged when he acts in good faith and believes his actions will benefit the corporation, the Arizona court in Ong Hing v Arizona Harness Raceway, Inc, supra, wrote:
"The question of good faith and whether the director believed the act was for the best lawful interests of the corporation must be determined as of the time the inducement took place. To determine these questions it is proper for the trier of facts to ascertain whether the accused director acted to satisfy personal feelings against the third party, or to serve his own private interest with no benefit to the corporation.” 10 Ariz App at 388; 459 P2d at 115.
The Oregon Supreme Court, considering "good faith” in Wampler v Palmerton, supra, concluded:
"We do not believe that 'good faith’ as used here can reasonably mean anything more than an intent to benefit the corporation.” 250 Ore at 76; 439 P2d at 607.
Other cases dealing with this question apply the same standard even when the phrase "good faith” is not used. The privilege exists when the corporate official is "acting for and on behalf of his corporation”, May v Sante Fe Trail Transportation Co, 189 Kan 419, 425; 370 P2d 390, 395 (1962), when he is "actuated * * * by a sense of duty to the corporation”, Vassardakis v Parish, 36 F Supp 1002, 1005 (SD NY, 1941), or when he acts "in the belief that he is serving the interest of the corporation”. Tye v Finkelstein, 160 F Supp 666, 668 (D Mass, 1958). See also, 3 Fletcher, Corporations, § 1001, p 540.
We think defendant here, as a union official, should have no greater privilege to interfere with the contractual relations of the union than that accorded corporate officials with regard to corporate contracts. Both have a duty to advance the interests of the organizations they represent, but the need for vigorous representation should not excuse acts done for a strictly personal motive. The privilege a union official has to interfere with the union’s contracts depends upon the official acting with an honest belief that his action will benefit the union.
If plaintiffs allegations are true, and we note that so far she has proved nothing, then she has suffered a wrong the law should remedy. The sexual desires of an official simply cannot be equated with the legitimate interests of the organization he represents. Plaintiffs complaint sets forth an unprivileged interference by defendant with plaintiffs employment relationship with the union. The grant of summary judgment for defendant, on the basis of privilege, was improper. Plaintiff should have the opportunity to prove her allegations below. Defendant, of course, will have the opportunity to show that he acted in good faith, i.e., intending to benefit the union. He must only show that as the principal officer of the union he discharged plaintiff, not because, as she alleges, she spurned his sexual advances, but, instead, because he believed that the union would benefit by not having her as its employee.
Reversed and remanded.
M. F. Cavanagh, P. J., concurred.
Lumley v Gye, 2 El & Bl 216, 118 Eng Rep 749 (1853), is the leading modern case on tortious interference with contract. | [
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Cavanagh, J.
In these consolidated appeals, we hold that there are no genuine issues with respect to any material facts regarding plaintiffs’ public building claim, brought pursuant to MCL 691.1406; MSA 3.996(106), and federal claims against-the named individual defendants, brought pursuant to 42 USC 1983. Accordingly, defendants are entitled to judgment as a matter of law for those claims. We hold that there are genuine issues of material facts regarding plaintiffs’ remaining § 1983 claim against the City of Detroit. Therefore, the city is not entitled to judgment as a matter of law for that claim.
The decision of the Court of Appeals is affirmed and the case is remanded to the trial court for proceedings consistent with this opinion.
I
All of plaintiffs’ claims arise from Louis Jackson’s attempted suicide while in the custody of the Detroit Police Department. Jackson was arrested on December 29, 1984, for unlawfully driving away an automobile. After his arrest, he was taken to the seventh precinct station and questioned. Further investigation revealed that Jackson had an outstanding warrant for his arrest, so a "hold” was placed on him. Jackson was put in a felony cell in the male lockup section of the seventh precinct station.
Approximately an hour and a half after being arrested, Officer George Sheridan discovered Jackson standing on the sink in his cell making a noose out of his socks. Jackson was apparently going to hang himself from the exposed overhead bars in his cell. Sheridan called for help and Jackson was taken to the crisis center at Detroit Receiving Hospital for a psychiatric evaluation.
At the hospital, Jackson was eventually seen by Dr. Chen, a psychiatrist. Jackson was diagnosed as having an adjustment disorder with depressed mood and opiate dependence, and Chen recommended that he be admitted to the hospital if the charges against Jackson could be dropped. Jackson was returned to the seventh precinct station with Chen’s written and verbal admonition that Jackson be kept under suicide watch.
Upon his return on December 30, 1984, Jackson was placed in another felony cell. This cell, like all the felony cells at the station, had exposed overhead bars. The desk sergeant’s report said that Jackson was handled as a "routine” prisoner and made no mention of any special precautions or suicide watch.
Nevertheless, the "doorman” on duty (Officer Lakeemba) was aware of Jackson’s prior suicide attempt and informed the desk sergeant (Sergeant Keifel). Keifel told Lakeemba to keep a close watch on Jackson. He said that he had personally checked on Jackson three times between 2:15 and 3:30 p.m., with the last check occurring at 3:30 p.m.
The afternoon shift came on duty at 3:30 p.m. When Officer Sheridan arrived and discovered that Jackson had been returned to the lockup, he immediately informed his superior officer, Sergeant Elliot. Recognizing the risk, and somewhat ironically, Elliot told Sheridan to call "911” and have Jackson removed from the precinct. Sheridan made the call and went back to check on Jackson at approximately 3:35 p.m. He discovered Jackson hanging from a noose fashioned from some material, possibly his pants, tied to the exposed overhead bars of his cell. Sheridan immediately summoned help. Jackson was given cpr until emergency medical help arrived.
The record in this case shows that there were 128 suicide attempts in Detroit police lockups between 1978 and 1983. Eighty-six percent of them occurred in lockups with exposed overhead bars. Between June 1980 and December 1984, there were thirteen suicide attempts in the seventh precinct station alone. Moreover, the record indicates that "command personnel attempted internal policy change[s] to obviate the presence of the exposed overhead horizontal bars” in all the precincts. In fact, it appears that the city actually did remedy the problem in the third and sixteenth precinct stations sometime .during 1983-84 by welding a piece of steel over the bars. These modifications were not made to the seventh precinct station’s lockup, allegedly, "by the sole authority of Police Chief William Hart.”
The plaintiffs brought three separate suits. One against the city (filed in 1985), one against the individual officers (filed in 1987), and a medical malpractice suit against Detroit Receiving Hospital and Dr. Chen. The first two suits were consolidated.
Eventually, the defendants moved for summary disposition, pursuant to MCR 2.116(0(10), in the consolidated suit. The trial court dismissed the § 1983 claim against the city, an intentional nuisance claim, and the claims against the individual defendants. It ruled, however, that the claim regarding a defect in a public building should go forward.
The parties sought and were granted leave to appeal in the Court of Appeals. That Court reversed the decisions of the trial court on the intentional nuisance claim and the § 1983 claim against' the city, but affirmed the dismissal of the claims against the individual defendants and the public building claim. The parties moved for rehearing on the intentional nuisance claim in that Court following this Court’s decision in Li v Feldt, 434 Mich 584; 456 NW2d 55 (1990). On rehearing, the Court of Appeals reversed itself on the intentional nuisance claim, summarily affirming the trial court on that issue. The parties then filed their applications in this Court. We remanded the case to the Court of Appeals for reconsideration in light of Hickey v Zezulka (On Resubmission), 439 Mich 408; 487 NW2d 106 (1992), and York v Detroit, 438 Mich 744; 475 NW2d 346 (1991).
On remand, the Court of Appeals ultimately-held: 1) summary disposition was properly granted to the defendants on the public building claim, 2) summary disposition was properly granted the individual defendants because of the lack of any specific allegations or evidence that the individual police officers had violated Jackson’s civil rights, and 3) summary disposition was improperly granted to the city because there was enough evidence to present to the factfinder regarding the claim against the city.
ii
This case is here on a motion for summary disposition, and this procedural posture establishes our standard of review. As has often been repeated when reviewing a MCR 2.116(0(10) motion, a court must review the documentary evidence and determine whether a genuine issue of material fact exists. All reasonable inferences must be drawn in the nonmovant’s favor, thereby giving that party the benefit of any reasonable doubt. Skinner v Square D Co, 445 Mich 153, 161-162; 516 NW2d 475 (1994).
We granted leave in this consolidated appeal to consider: 1) whether the city was properly granted summary disposition on the public building claim, 2) whether the individual defendants were properly granted summary disposition, and 3) whether summary disposition was properly denied on the claim against the city. Guided by the appropriate standard of review, we will discuss each of these issues separately.
A
The first issue is whether the city was properly granted summary disposition on the public building claim. As a general matter, a governmental agency, in this case the City of Detroit, is immune from tort liability for actions taken while performing governmental functions. MCL 691.1407(1); MSA 3.996(107)(1). Although very broad, this immunity is subject to a limited number of narrowly drawn exceptions. The applicable exception in this case is the public building exception, MCL 691.1406; MSA 3.996(106).
The most recent pronouncement from this Court regarding the relationship between MCL 691.1406; MSA 3.996(Í06), and jailhouse suicides is Hickey, supra. In that case, the decedent was arrested for drunk driving by a Michigan State University public safety officer and placed in a holding cell at Michigan State. The cell had a nine- to ten-foot high ceiling and a concrete bench along one side. Above the bench was a heater supported by four metal brackets. The decedent hanged himself from a bracket.
This Court held that a five-part test determines whether the public building exception governs a particular case. To fall within the narrow confines of the exception, a plaintiff must prove that 1) a governmental agency is involved, 2) the public building in question is open for use by members of the public, 3) a dangerous or defective condition of the public building itself exists, 4) the governmental agency had actual or constructive knowledge of the alleged defect, and 5) the governmental agency failed to remedy the alleged defective condition after a reasonable period of time. Id. at 421.
The duty imposed by the public building exception relates to dangers actually presented by the building itself. As recognized in Hickey, the purpose of the public building exception is to promote the maintenance of safe public buildings, not necessarily safety, in public buildings. Thus, where proper supervision would have " 'offset any shortcomings in the configuration of the room,’ ” the public building exception does not apply. Id. at 422.
In rejecting the plaintiff’s public building claim, this Court noted that no one before Hickey had ever tried to commit suicide in a cell maintained by Michigan State, and that the cells were meant to house detainees only until they could be transported to another facility. More importantly, there was nothing wrong with that cell. There was, however, something tragically wrong with the decedent.
In Hickey, this Court was simply unwilling to allow the decedent’s intent to commit suicide to convert the heater and metal brackets into a dangerous and defective condition. At most, the claim in that case related to safety in a public building. It did not relate to the maintenance of a safe public building for the specific use and purpose for which it was assigned.
As in Hickey, the only question presented by this case is whether a dangerous or defective condition existed in the seventh precinct station felony holding cells. Thus, it is obvious that Hickey controls the resolution of the public building claim in this case even though the facts are distinguishable. Nevertheless, the plaintiffs’ claim is more closely related to safety in public buildings than it is to a defect in a public building. As we noted in Hickey:
To suggest that any physical feature of a jail cell, otherwise benign, that can conceivably become a part of a plan of one who is desperately driven to self destruction can become a "dangerous or defective condition” under the public building exception statute, simply crosses the outer limits of any reasonable reading of the intent of that statute when considered in the context of its history, purpose, and wording. [Id. at 426.]
Just as in Hickey, Jackson’s suicide attempt does not relate to the maintenance of a safe public building for the specific use and purpose for which it was assigned. It relates to safety in public buildings, and thus does not come within the narrow confines of the public building exception to governmental immunity._
B
The second issue is whether the § 1983 claims against the individual defendants were properly-dismissed. In this case, the plaintiffs claim that Jackson’s due process right to adequate medical care, as a pretrial detainee, was violated. In York, supra, this Court adopted the prevailing federal rule that a pretrial detainee’s due process rights under the Fourteenth Amendment are protected to the same extent as the rights guaranteed convicted persons under the Eighth Amendment. Thus, a plaintiff cannot establish a due process violation absent a showing of "deliberate indifference”; mere negligence does not amount to deliberate indifference. Estelle v Gamble, 429 US 97, 104; 97 S Ct 285; 50 L Ed 2d 251 (1976).
The most recent pronouncement from the United States Supreme Court regarding what constitutes deliberate indifference to a convicted person’s Eight Amendment rights is Farmer v Brennan, 511 US —; 114 S Ct 1970; 128 L Ed 2d 811 (1994). Farmer holds that to state an actionable Eighth Amendment violation, a plaintiff must prove that specific prison officials acted with "deliberate indifference” to inmate health or safety. The Eighth Amendment outlaws cruel and unusual "punishments,” not "conditions.” 114 S Ct 1979. Thus, the failure to alleviate a significant risk that an official should have perceived as a risk to an inmate’s rights, but did not, cannot be condemned as the infliction of punishment. .
This form of deliberate indifference mandates an inquiry into a prison official’s subjective state of mind. A prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of, and disregards, a substantial risk to inmate health or safety. The official must both be aware of facts from which the inference that a substantial risk of serious harm exists could be drawn, and he must also draw the inference. Farmer, 114 S Ct 1979.
Simple knowledge that a substantial risk exists is not enough, however, to impose liability. A plaintiff also must show that prison officials acted with deliberate indifference:
In addition, prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted. A prison official’s duty under the Eighth Amendment is to ensure "reasonable safety.” . . . Whether one puts it in terms of duty or deliberate indifference, prison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause. [Farmer, 114 S Ct 1982-1983. Citations omitted, emphasis added.]
We assume, given the standard of review, that the individuals involved in this case subjectively knew that Jackson was a suicide risk in light of his prior attempt and the diagnosis of Dr. Chen. We further assume that they knew it was risky to treat him as a "routine” prisoner and place him into a felony cell with exposed overhead bars. What is fatal to plaintiffs’ claims against these individuals, however, is the fact that they did, in fact, act reasonably in light of the risk.
For example, as soon as the officers realized Jackson’s suicidal tendencies, they sent him to see a psychiatrist. And when Officer Lakeemba, who knew of Jackson’s earlier suicide attempt, learned that Jackson had returned to the lockup, he immediately informed Sergeant Keifel. Jackson was checked every fifteen minutes, although the regulations required visual inspections of prisoners every thirty minutes.
Similarly, when Sheridan came on duty and discovered that Jackson had been returned to the lockup, he immediately informed his superior officer, Sergeant Elliot. Elliot immediately told Sheridan to make arrangements to have Jackson removed from the lockup. Sheridan made the arrangements and quickly went back to check on Jackson at about 3:35 p.m., only to find him hanging from the overhead bars. Only five minutes had passed between the time Keifel last checked Jackson and Sheridan found him hanging. When Sheridan did find him, he promptly cut Jackson down, and Keifel administered cpr while emergency medical help was summoned.
A prison official’s duty under the Eighth Amendment, and correspondingly the Fourteenth Amendment, is to ensure "reasonable safety,” nothing more or less. In this case, that duty was properly discharged. These officers subjectively knew of a substantial risk to Jackson’s safety, and they acted reasonably in light of the risk. By no stretch of the imagination can they be said to have disregarded a known risk.. While it may have been negligent to treat Jackson as a routine prisoner and place him in a cell with exposed overhead bars, negligence is not deliberate indifference. The actions of these officers show beyond any reasonable doubt that they were not deliberately indifferent to Jackson’s serious medical needs.
C
The final issue presented in this appeal is whether summary disposition was properly denied on the claim against the city. A governmental entity cannot be found liable under § 1983 on a respondeat superior theory. Rather, such liability can be imposed only for injuries inflicted pursuant to a governmental "policy or custom.” Monell v Dep’t of Social Services of New York City, 436 US 658, 694; 98 S Ct 2018; 56 L Ed 2d 611 (1978). There must be an affirmative link between the policy or custom and the particular constitutional violation alleged. The alleged policy or custom must be the "moving force” of the constitutional violation in order to establish liability. Id. at 694.
Such a policy may be shown by demonstrating that the city manifested a "deliberate indifference” to the medical needs of its pretrial detainees. City of Canton, Ohio v Harris, 489 US 378, 391; 109 S Ct 1197; 103 L Ed 2d 412 (1989). Acts of omission, as well as commission, may support a finding of § 1983 liability. However, an alleged policy of inaction must reflect some degree of fault before it may be considered a policy on which § 1983 liability may be based. Id. at 388.
This requirement of fault is necessary to establish the causal link between a municipal policy and a constitutional violation. Justice O’Connor elaborated on this standard in her concurring opinion in Canton:
Where a § 1983 plaintiff can establish that the facts available to city policymakers put them on actual or constructive notice that the particular omission is substantially certain to result in the violation of the constitutional rights of their citizens[,] [o]nly then can it be said that the municipality has made " 'a deliberate choice to follow a course of action . . . from among various alternatives.’ ” [Id. at 396.]
In addition, the policy or custom must originate with the decisionmaker possessing final policy-making authority with respect to the omission or commission at issue. Pembaur v Cincinnati, 475 US 469, 482; 106 S Ct 1292; 89 L Ed 2d 452 (1986) (plurality opinion). Whether a particular official has final policy-making authority is a question of state law, St Louis v Praprotnik, 485 US 112, 123; 108 S Ct 915; 99 L Ed 2d 107 (1988) (plurality opinion), to be decided as a matter of law before the case goes to the jury. Jett v Dallas Independent School Dist, 491 US 701, 737; 109 S Ct 2702; 105 L Ed 2d 598 (1989) (plurality opinion).
Finally, it is also important to note that the "deliberate indifference” necessary to give rise to municipal liability for a § 1983 action is not coextensive with the "deliberate indifference” necessary to prove an actionable violation of a pretrial detainee’s due process right to adequate medical care. The former requires an objective intent, while the latter requires a subjective one. Farmer, 114 S Ct 1981.
Applying these principles to the case at bar leads us to conclude that plaintiffs have made a prima facie showing that Jackson’s due process rights may have been violated and that the violation resulted from a city policy of inaction that may evidence a deliberate indifference to those rights. Viewing the record in a light most favorable to the plaintiffs, we conclude that the city objectively knew that the seventh precinct station cells could be dangerous when they housed suicidal detainees. The record shows that over a five-year period there, were 128 attempted suicides, the vast majority of which occurred in cells having exposed overhead bars. In the seventh precinct station alone there were thirteen attempts and one death in the four years before Jackson’s detention.
Therefore, the city’s policymakers were on notice that the failure to modify the cells with exposed overhead bars was substantially certain to result in the violation of the constitutional rights of those persons known to be suicidal who were placed in those cells in spite of their suicidal tendencies. The evidence would allow a rational trier of fact to conclude that city policymakers made "a deliberate choice to follow a course of [in]action . . . from among various alternatives” and that they were correspondingly deliberately indifferent to the rights of suicidal detainees housed in the seventh precinct station.
in
Having reviewed the documentary evidence, and drawing all reasonable inferences from that evidence in the nonmovant’s favor, we affirm the decision of the Court of Appeals. The case is remanded to the trial court for proceedings consistent with this opinion.
Boyle, Riley, Mallett, and Weaver, JJ., concurred with Cavanagh, J.
MCL 750.413; MSA 28.645.
This essentially meant that he could not be released from custody until he was brought before a judge on the outstanding warrant.
This fact is established in plaintiffs’ requests to admit of September 9, 1986, which were admitted into evidence by the trial court.
id.
The medical malpractice action is not involved in this appeal.
Unpublished opinion per curiam, issued April 26, 1990 (Docket No. 112157).
440 Mich 894 (1992).
Unpublished opinion per curiam of the Court of Appeals, issued April 27, 1993 (Docket No. 155824).
Of course, a motion brought pursuant to MCR 2.116(0(10) must be supported by documentary evidence. MCR 2.116(G)(3)(b).
Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided in this act, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed.
Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition.
For example, the cells were not temporary detention cells. Moreover, the officers involved were on notice both that the cell could be dangerous, as evidenced by numerous successful and attempted suicides, and that this particular detainee was in fact suicidal.
As we noted in York, 42 USC 1983 itself is not the source of substantive rights; it merely provides a remedy for the violation of rights guaranteed by the federal constitution or federal statutes.
It goes without saying that if one acts reasonably one is not acting with deliberate indifference. Nevertheless, reasonableness is not the standard. Thus, it is theoretically possible that one may act unreasonably but still not be deliberately indifferent.
The city argues that the plaintiffs have not shown that the omission (i.e., the failure to rectify the problem with the felony cells in the seventh precinct station) originated from a decisionmaker with final policy-making authority. We note that exactly who, or what, this decisionmaker is, is a question of law to be decided in the first instance by the trial court. The trial court in this case has not yet ruled on the issue. Therefore, it is enough for our purposes that plaintiffs allege that "command personnel” attempted to have the bars covered, but that this attempt was halted "by the sole authority of Police Chief William Hart.” | [
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Brickley, C.J.
After the statutory limitation period had apparently expired, the plaintiff filed a negligence action for injuries suffered in an automobile accident. The circuit court granted summary disposition for the defendant on the ground that the suit was untimely filed, but the Court of Appeals reversed. Because we believe that summary disposition was appropriate, we reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court.
i
This case arises from an automobile accident on the evening of June 23, 1987. Plaintiff Shirley Stephens was a passenger in a vehicle owned by defendant C. J. Dixon. The car was being driven by Mr. Dixon’s spouse, Emma J. Dixon, who is now deceased. Ms. Dixon attempted a left turn, but failed to yield the right of way to an oncoming vehicle. The cars collided, and Ms. Stephens was thrown about the passenger compartment. Her head struck and broke the windshield and also hit the car roof. She came to rest on the floor of the passenger compartment, facing the back of the vehicle, and was unconscious for a time. Ms. Stephens was not hospitalized, though she suffered contusions and abrasions. She experienced muscle pain and stiffness throughout her body, including her neck. These conditions resolved themselves within a period of weeks.
In February 1989, more than twenty months after the original accident, Ms. Stephens began to experience mild neck pain. It increased in severity over the course of several months. In December 1989, she sought medical attention. The condition was diagnosed as spondylolysis of the neck vertebrae at c-4, c-5, and c-6. Ms. Stephens describes spondylolysis as a latent condition associated with prior injuries. On February 23, 1990, Ms. Stephens underwent surgical microdiskectomy to the c-5 and c-6 vertebrae. An anterior cervical diskectomy and fusion at the c-6 and c-7 vertebrae was done on April 30, 1990, to correct a left-side radiculopathy.
On November 20, 1990, nearly forty months after the original accident, the plaintiff filed suit against Mr. Dixon. He responded with a motion for summary disposition, arguing that the suit had been filed after the three-year limitation period of MCL 600.5805(8); MSA 27A.5805(8). The circuit court granted the defendant’s motion for summary disposition, explaining simply that the facts of this case did not serve to extend the statutory limitation period.
The plaintiff appealed, and the Court of Appeals reversed the summary disposition. It held that the discovery rule tolls a statute of limitation where a plaintiff alleges a latent injury, but not where a plaintiff misjudges the severity of an injury. The case was remanded for a hearing at which the plaintiff was to be given the opportunity to persuade the circuit court to apply the discovery rule to these facts. 199 Mich App 73, 79; 500 NW2d 749 (1993). The defendant applied to this Court for leave to appeal, and the plaintiff responded with a conditional application for leave to appeal as cross-appellant. We granted leave to appeal and cross appeal on October 19, 1994. 447 Mich 987.
ii
Plaintiff argues that the limitation period for her cause of action ought to be tolled by the discovery rule. Statutes of limitation are procedural devices intended to promote judicial economy and the rights of defendants. For instance, they protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence. They also prevent plaintiffs from sleeping on their rights; a plaintiff who delays bringing an action profits over an unsuspecting defendant who must prepare a defense long after the event from which the action arose.
In Michigan, the limitation period for ordinary negligence actions such as the case at bar is three years. MCL 600.5805(8); MSA 27A.5805(8). The most complicated problem associated with statutes of limitation, and the problem presented in this case, is that of determining when they begin to run. MCL 600.5805(8); MSA 27A.5805(8) provides that "[t]he claim accrues at the time . . . the wrong upon which the claim is based was done regardless of the time when damage results.” MCL 600.5827; MSA 27A.5827. We have held that the term "wrong,” as used in the accrual provision, refers to the date on which the plaintiff was harmed by the defendant’s negligent act, not the date on which the defendant acted negligently. Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146; 200 NW2d 70 (1972). Otherwise, a plaintiff’s cause of action could be barred before the injury took place.
Another accrual problem associated with statutes of limitation occurs when a plaintiff is injured but is unaware of the injury. If the statute of limitation begins to run at the time of injury, it is possible that plaintiffs with perfectly valid claims could be prevented, through no fault of their own, from bringing their actions within the specified period of limitation. In situations such as these, the common law has developed equitable rules to mitigate the harsh effects of the statute of limitation. One such exception is the discovery rule. The discovery rule, based on principles of fundamental fairness, "was formulated to avoid the harsh results produced by commencing the running of the statute of limitations before a claimant was aware of any basis for an action.” Hammer v Hammer, 142 Wis 2d 257, 264; 418 NW2d 23 (1987).
We explained the discovery rule in Chase v Sabin, 445 Mich 190, 196-197; 516 NW2d 60 (1994). In Chase, a 1963 eye operation failed because of an event that occurred during the operation. The plaintiff was not told of the occurrence. In 1988, while pursuing an unrelated worker’s compensation claim, the plaintiff’s attorney obtained a hospital record of the surgery and learned of the event. We stated:
Similarly, because statutes of limitation do not evidence a legislative intent to extinguish a cause of action before the plaintiff is aware of the possible-cause of action, we have adopted the discovery rule in the appropriate instances. Last term ... we held that the discovery rule controls the date a pharmaceutical products liability action accrues. "If the three-year period of limitation began to run at the time of the defendant’s breach, most, if not all, claims would be barred before the plaintiff had reason to know of the injury and the cause of the injury. Such an interpretation seeks 'to declare the bread stale before it is baked.’ ” (Citation omitted.)
We note that while the discovery rule serves as an important limit on a mechanical and unjust termination of a legitimate cause of action, there can be equitable problems with the imposition of the discovery rule as well. As one commentator has stated:
While providing equitable relief to plaintiffs otherwise barred by a strict application of the statute of limitations, the discovery rule also threatens legitimate interests of the defendant which the statute protects. While it may be harsh to bar the action of a plaintiff who, through no fault of his own, did not discover his injury until after the running of the statute, it is also unfair ... to compel a defendant to answer a charge arising out of events in the distant past. The discovery rule tends to undermine the sense of security that the statute of limitations was designed to provide, namely, that at some point a person is entitled to put the past behind him and leave it there. [Olsen, The discovery rule in New Jersey: Unlimited limitation on the statute of limitations, 42 Rutgers L R 205, 211-212 (1989).]
Hence, in deciding whether to strictly enforce a period of limitation or impose the discovery rule, we must carefully balance when the plaintiff learned of her injuries, whether she was given a fair opportunity to bring her suit, and whether defendant’s equitable interests would be unfairly prejudiced by tolling the statute of limitations.
hi
In the present case, the plaintiff proposes that we take a step beyond the rule of Chase. There, we held that "the discovery rule governs the accrual date for negligence claims, pursued against hospitals and their agents, which are similar to malpractice claims.” Id. at 201. By contrast, the present case involves allegations of ordinary negligence.
In Moll v Abbott Laboratories, 444 Mich 1, 12-13; 506 NW2d 816 (1993), we noted this Court’s adoption of the discovery rule for medical malpractice cases in Johnson v Caldwell, 371 Mich 368; 123 NW2d 785 (1963), in negligent misrepresentation cases in Williams v Polgar, 391 Mich 6; 215 NW2d 149 (1974), and in products liability actions for asbestos-related diseases in Larson v Johns-Manville Sales Corp, 427 Mich 301; 399 NW2d 1 (1986). In Moll, we extended the application of the discovery rule to products liability actions for pharmaceutical products liability actions. Defendant correctly points out that in these contexts, evidentiary records are rarely diminished by the passage of time. Hence, as we stated in Larson, supra at 312, quoting Eagle-Pitcher Industries, Inc v Cox, 481 So 2d 517, 523 (Fla App, 1985), "the concern for protecting defendants from 'time-flawed evidence, fading memories, lost documents, etc.’ is less significant in these cases.” That is not the case in automobile tort liability cases, where the evidence for liability defense is often dependent on fading memories of individual witnesses.
We hold that the discovery rule is not available in a case of ordinary negligence where a plaintiff merely misjudges the severity of a known injury. This is a case in which the plaintiff was thrown about the passenger compartment with such force that her head broke the windshield. Initially rendered unconscious, she awoke to experience pain and stiffness in her neck. Many months after the accident, but still within the limitation period, she again experienced neck pain that increased to the point that medical attention was required. This plaintiff knew more than three years before she filed suit that she had suffered a neck injury as the result of the automobile accident. Indeed, this plaintiff knew or should have known from the day of the accident that a possible cause of action existed for a neck injury resulting from the accident.
A simple negligence cause of action accrues when a prospective plaintiff first knows or reasonably should know he is injured. As we stated in Connelly:
Once all of the elements of an action for personal injury, including the element of damage, are present, the claim accrues and the statute of limitations begins to run. Later damages may result, but they give rise to no new cause of action, nor does the statute of limitations begin to run anew as each item of damage is incurred. [388 Mich 151.]
Hence, "[t]he discovery rule applies to the discovery of an injury, not to the discovery of a later realized consequence of the injury.” Moll, 444 Mich 18. Plaintiff’s cause of action accrued on June 23, 1987, when she was involved in an automobile accident and knew that her neck was injured. Plaintiff had more than ample time within the limitation period to file suit and did not. It would be unfair to defendant to require him to now prepare a defense.
IV
In Connelly, supra, we held that a cause of action for tortious injury accrues "when all of the elements of the cause of action have occurred and can be alleged in a proper complaint.” Id. at 150. We further explained that there are four such elements:
(1) The existence of a legal duty by defendant toward plaintiff.
(2) The breach of such duty.
(3) A proximate causal relationship between the breach of such duty and an injury to the plaintiff.
(4) The plaintiff must have suffered damages. [Id.]
Citing Mielke v Waterman, 145 Mich App 22; 377 NW2d 328 (1985), plaintiff argues that in automobile negligence actions, there is an additional fifth element that must occur before a cause of action accrues. We reject this argument and reaffirm the rule of Connelly.
Michigan’s no-fault act establishes an injury threshold for tort liability caused by the ownership, maintenance, or use of a motor vehicle. It provides that "[a] person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.” MCL 500.3135(1); MSA 24.13135(1). In Mielke, the Court of Appeals added a fifth element to ordinary negligence suits in the motor vehicle context on the basis of this provision. It reasoned:
Serious impairment of body function is a threshold established by MCL 500.3135; MSA 24.13135 for tort liability caused by ownership, maintenance, or use of a motor vehicle. The serious impairment of body function is an essential element of the plaintiff’s cause of action, not merely a later additional item of damages. In an action like that presented here, an additional element must be added to the four essential elements specified in Connelly for an action for damages arising out of tortious injury to a person: (5) The plaintiff must have suffered a serious impairment of body function. A cause of action for damages for noneconomic losses from a serious impairment of body function cannot have accrued before the alleged serious impairment occurred.
Because plaintiff’s cause of action did not accrue until he could allege all of the essential elements of the cause of action in a proper complaint, plaintiff’s cause of action did not accrue until he discovered or should have discovered the serious impairment of body function. [Mielke at 25-27. Citations omitted.]
On the basis of Mielke, plaintiff maintains that her cause of action did not accrue until February, 1989, twenty months after her accident. She argues that only at this time did her injuries reach the threshold status of "a serious impairment of body function.” For the reasons provided below, we reject this "fifth element” argument and reaffirm the four-element test established in Connelly.
The addition of an injury threshold element in vehicular, ordinary negligence cases would corrupt the purposes of the statute of limitation. Potential defendants of such suits would be denied the benefit of repose; since the rise of an injury to the threshold level could take many years, even decades. Moreover, the cost in judicial resources would also increase. In order to promote finality and prevent overburdening of our judicial resources, we cleave to the general principle that the discovery of an injury, not its attainment of some threshold status, commences the running of the statute of limitation. Moll, 444 Mich 19.
In addition, if we were to treat serious impairment of body function as a fifth element in motor .vehicle negligence actions, we would effectively disavow our proper role vis-á-vis the Legislature. It is the duty of this Court to give effect to the intention of the Legislature in passing its enactments. Wymer v Holmes, 429 Mich 66, 76; 412 NW2d 213 (1987). It was a specific purpose of the Legislature in enacting the Michigan no-fault act to partially abolish tort remedies for injuries sustained in motor vehicle accidents and to substitute for those remedies an entitlement to first-party insurance benefits. Shavers v Attorney General, 402 Mich 554, 578-579; 276 NW2d 72 (1978). This was accomplished by means of the thresholds specified in MCL 500.3135(1); MSA 24.13135(1). Whereas the no-fault act in general and MCL 500.3135; MSA 24.13135 in particular were designed to reduce tort litigation and to promote promptness and certainty of outcome, a "fifth element” analysis would promote tort litigation as well as reduce promptness and certainty of outcome.
v
On these facts, the circuit court properly granted summary disposition. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court. MCR 7.302(F)(1).
Levin, Cavanagh, Boyle, Riley, Mallett, and Weaver, JJ., concurred with Brickley, C.J.
The facts of this case do not present a situation in which the plaintiff did not know she was injured at the date of the accident, and we express no opinion about whether the statute of limitations should be tolled in such a case. | [
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Cavanagh, J.
These two premises liability cases present the issue of the scope of the duty owed by an owner or occupier of land to its business invitees regarding steps on its premises.
i
The general principles of premises liability are well understood and need not be reexamined here. Essentially, social policy imposes on possessors of land a legal duty to protect their invitees on the basis of the special relationship that exists between them. The rationale for imposing liability is that the invitor is in a better position to control the safety aspects of his property when his invitees entrust their own protection to him while entering his property. Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 499; 418 NW2d 381 (1988). The invitor’s legal duty is "to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land” that the landowner knows or should know the invitees will not discover, realize, or protect themselves against. Id., citing 2 Restatement Torts, 2d, § 343, pp 215-216. Section 343 provided:
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger. [Emphasis added.]
A claim that the invitor has breached the duty to exercise reasonable care to protect invitees from unreasonable risks of harm has traditionally been premised on three theories: failure to warn, negligent maintenance, or. defective physical structure. Consequently, invitors may be held liable for an invitee’s injuries that result from a failure to warn of a hazardous condition or from the "negligent maintenance of the premises or defects in the physical structure of the building.” Williams, supra at 499-500.
The Restatement provided:
A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. [2 Restatement Torts, 2d, § 343A(1), p 218. Emphasis added.]
The accompanying comments provided that §§ 343 and 343A are to be read together. Where a condition is open and obvious, the scope of the possessor’s duty may be limited. While there may be no obligation to warn of a fully obvious condition, the possessor still may have a duty to protect an invitee against foreseeably dangerous conditions. Thus, the open and obvious doctrine does not relieve the invitor of his general duty of reasonable care.
When §§ 343 and 343A are read together, the rule generated is that if the particular activity or condition creates a risk of harm only because the invitee does not discover the condition or realize its danger, then the open and obvious doctrine will cut off liability if the invitee should have discovered the condition and realized its danger. On the other hand, if the risk of harm remains unreasonable, despite its obviousness or despite knowledge of it by the invitee, then the circumstances may be such that the invitor is required to undertake reasonable precautions. The issue then becomes the standard of care and is for the jury to decide.
A comment accompanying the Restatement explained:
There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.
Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. ... It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances. [2 Restatement Torts, 2d, § 343A, comment f, p 220. Emphasis added.]
We recently considered the open and obvious danger doctrine in Riddle v McLouth Steel Products, 440 Mich 85; 485 NW2d 676 (1992). There, we were concerned with jury instructions regarding the duty of a possessor of land regarding open and obvious dangers. Both the majority and the dissent agreed that § 343A applies in Michigan. Id. at 94 (majority); id. at 117 (Levin, J., dissenting). Both opinions further agreed that there is no absolute obligation to warn of open and obvious dangers. Id. at 97 (majority); id. at 123-125 (Levin, J., dissenting).
The majority in Riddle stated:
[T]he "no duty to warn of open and obvious danger” rule is a defensive doctrine that attacks the duty element that a plaintiff must establish in a prima facie negligence case. A negligence action may only be maintained if a legal duty exists which requires the defendant to conform to a' particular standard of conduct in order to protect others against unreasonable risks of harm. If the plaintiff is a business invitee, the premises owner has a duty to exercise due care to protect the invitee from dangerous conditions. Beals [v Walker, 416 Mich 469, 480; 331 NW2d 700 (1982)]. However, where the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them, an invitor owes no duty to protect or warn the invitee unless he should anticipate the harm despite knowledge of it on behalf of the invitee. Williams, supra.
Once a defendant’s legal duty is established, the reasonableness of the defendant’s conduct under that standard is generally a question for the jury. . . . The jury must decide whether the defendant breached the legal duty owed to the plaintiff, that the defendant’s breach was the proximate cause of the plaintiff’s injuries, and thus, that the defendant is negligent.
If, for example, the dangerous conditions on the premises are hidden or latent, the premises owner is obliged to warn the invitee of the dangers. Defendant’s failure to warn under these circumstances may indicate a breach of the legal duty owed plaintiff. If the conditions are known or obvious to the invitee, the premises owner may nonetheless be required to exercise reasonable care to protect the invitee from the danger. Quinlivan [v The Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244, 260-261; 235 NW2d 732 (1975)]. What constitutes reasonable care under the circumstances must be determined from the facts of the case. While the jury may conclude that the duty 'to exercise due care requires the premises owner to warn of a dangerous condition, there is no absolute duty to warn invitees of known or obvious dangers. [Id. at 95-97. Citation omitted; emphasis added.]
Thus, even though there may not be an absolute obligation to provide a warning, this rule does not relieve the invitor from his duty to exercise reasonable care to protect his invitees against known or discoverable dangerous conditions. Williams, supra at 499, citing 2 Restatement Torts, 2d, § 343, pp 215-216. Duty exists because the relationship between the parties gives rise to a legal obligation. Moning v Alfono, 400 Mich 425, 438-439; 254 NW2d 759 (1977). However, overriding public policy may limit the scope of that duty. Id. at 438.
With the axiom being that the duty is to protect invitees from unreasonable risks of harm, the underlying principle is that even though invitors have a duty to exercise reasonable care in protecting their invitees, they are not absolute insurers of the safety of their invitees. Quinlivan, supra at 261. Consequently, because the danger of tripping and falling on a step is generally open and obvious, the failure to warn theory cannot establish liability. However, there may be special aspects of these particular steps that make the risk of harm unreasonable, and, accordingly, a failure to remedy the dangerous condition may be found to have breached the duty to keep the premises reasonably safe.
This Court has decided many premises liability cases involving steps or differing floor levels. Before this Court adopted comparative negligence, the issue of openness and obviousness often arose as the affirmative defense of contributory negligence, which completely barred recovery. However, before even reaching the issue of the affirmative defense of contributory negligence, the general rule emerged that steps and differing floor levels were not ordinarily actionable unless unique circumstances surrounding the area in issue made the situation unreasonably dangerous.
For instance, in Garrett v Butterfield Theaters, 261 Mich 262; 246 NW 57 (1933), the plaintiff fell off a step where a ladies’ lounge was adjoined to a toilet room. The door opened into the toilet room, with the floor level of the lounge extending nine inches beyond the door casing. There was then a four and one-half-inch step down to the floor of the toilet room. The floors were of different colored tile and the room was well lit. The Court held that the defendant was under no "duty to prevent careless persons from hurting themselves.” Id. at 264. The Court reasoned:
Different floor levels in private and public buildings, connected by steps, are so common that the possibility of their presence is anticipated by prudent persons. The construction is not negligent unless, by its character, location, or surrounding conditions, a reasonably prudent person would not be likely to expect a step or see it. [Id. at 263-264.]
This holding was quoted in Boyle v Preketes, 262 Mich 629, 635-636; 247 NW 763 (1933). There, the Court determined that steps between two storerooms were ordinary steps that posed no concealed danger to ordinarily prudent customers. The plaintiff testified that she fell because she simply did not see the step. Id. at 633. The Court held that the defendant was not negligent.
By comparison, in Dahlem v Hackley Union Nat’l Bank & Trust Co, 361 Mich 609; 106 NW2d 121 (1960), a seventy-five-year-old plaintiff tripped on a step going into a women’s rest room in the defendant’s office building. The plaintiff had obtained a key from her physician’s staff for the rest room located down the hall. Once unlocked, the door swung out into the hallway. The Court described the setting:
It appears that said door was equipped with a spring which caused it to close after having been opened. In close proximity to the door, approximately 2% inches therefrom, within the rest room, was a step 5 or 6 inches high between the level of the corridor and that of the rest room facilities. [Id. at 611.]
The plaintiff testified that the door was heavy and that as she was stepping into the room, the door sprang shut and she tripped on the step, which she did not see. Viewing the evidence in the light most favorable to the plaintiff, the Court found that there was no warning that the door would automatically close. Id. at 616. "The extent to which the operation of the door entered into the accident was a matter for consideration by the trier of the facts.” Id. This Court unanimously held that "there were conditions here present that required submitting to the jury the issue as to defendant’s negligence.” Id.
In summary, because steps are the type of everyday occurrence that people encounter, under most circumstances, a reasonably prudent person will look where he is going, will observe the steps, and will take appropriate care for his own safety. Under ordinary circumstances, the overriding public policy of encouraging people to take reasonable care for their own safety precludes imposing a duty on the possessor of land to make ordinary steps "foolproof.” Therefore, the risk of harm is not unreasonable. However, where there is something unusual about the steps, because of their "character, location, or surrounding conditions,” then the duty of the possessor of land to exercise reasonable care remains. If the proofs create a question of fact that the risk of harm was unreasonable, the existence of duty as well as breach become questions for the jury to decide. Williams, supra at 500. If the jury determines that the risk of harm was unreasonable, then the scope of the defendant’s duty to exercise reasonable care extended to this particular risk. At any rate, the trial court may appropriately consider the specific allegations of the breach of the duty of reasonable care, such as failure to warn, negligent maintenance, or dangerous construction. If the plaintiff alleges that the defendant failed to warn of the danger, yet no reasonable juror would find that the danger was not open and obvious, then the trial court properly may preclude a failure to warn theory from reaching the jury by granting partial summary judgment.
n
In these cases, both trial courts granted the respective defendant’s motion for summary disposition on the basis of MCR 2.116(C)(10) (no genuine issue of material fact). Such motions must be supported by documentary evidence. MCR 2.116(G)(3)(b); see Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994). The trial court must review the record evidence, make all reasonable infer enees therefrom, and determine whether a genuine issue of material fact exists, giving the non-moving party the benefit of reasonable doubt. Skinner v Square D Co, 445 Mich 153, 161-162; 516 NW2d 475 (1994). On review, an appellate court must also make all reasonable inferences in the nonmoving party’s favor. Id. at 162, citing Moll v Abbott Laboratories, 444 Mich 1, 27, n 36; 506 NW2d 816 (1993).
Here, we must determine whether a genuine issue existed regarding whether the risk of falling off the defendant-invitor’s steps was unreasonable, despite the fact that the danger was obvious or known to the plaintiff-invitee. If a genuine issue existed, then summary disposition was inappropriate.
iii
MAURER v OAKLAND CO PARKS & RECREATION DEP’T
In this case, the plaintiff alleged that on June 4, 1989, as she was leaving a rest room area, she stumbled and fell on an unmarked cement step at Addison Oaks County Park. The plaintiff sued, alleging that the defendant breached a duty owed to her, a business invitee, to maintain reasonably safe premises. Specifically, the plaintiff alleged that the defendant was negligent in failing to mark the step with a contrasting color, by failing to warn of the additional step, by failing to maintain a safe premises for its invitees, or .by failing to exercise reasonable care for the safety of its invitees.
The rest room was located in a building that also housed a concession stand. There was a series of steps outside the doorway of the rest room. First, there was a six- to eight-inch step down from the doorway to a concrete slab. About four feet beyond the first step was another six and one-half-inch to seven-inch step down to another concrete slab. This concrete area also extended about four feet. At her deposition, the plaintiff testified that she and her two children were leaving the rest room area at the defendant’s park. The plaintiff saw the first step and turned around to make sure that her children also saw the step. She then tripped on the second step:
Q. So you had an accident that you claim is attributable to some problem with the step, is that correct?
A. Yes.
Q. What is the problem, as you perceive it?
A. I just didn’t see the step there.
Q. You just didn’t see the step. And is there any reason you didn’t see the step?
A. I don’t know. I just — it just didn’t — you know how you spot things; I just did not see it.
Q. What time of day was this, do you remember?
A. 12:00 noon.
Q. Referring to the step that’s shown on the top picture in Exhibit No. 1, what is it about that step that you feel is dangerous or defective?
A. I just didn’t see it.
Q. And that’s the only thing you feel about this step that is dangerous or defective, is the fact that you didn’t see it?
A. Right.
The trial court granted the defendant’s motion for summary judgment on the basis of MCR 2.116(C)(10). In so doing, the court stated:
I read the brief or briefs and also the file, that’s the reason I wanted to take a look at the pictures because I thought it was some horrendous situation out there or something. You know, I think some place somebody has, and I’m going to be the one to do it, make people responsible for themselves I think. We can’t grant relief to everybody for every little thing. This one, to me, there’s absolutely, I wouldn’t even submit it to a jury as far as the negligence of the County or the appropriate set-up there. If I did, I’d have to go around and my conscience would require me to close down about half the places I see in the state every day including my own house.
The trial court denied the plaintiff’s motion for rehearing and reconsideration. The Court of Appeals reversed and remanded for further proceedings. The defendant appealed. In lieu of granting leave to appeal, we remanded to the Court of Appeals for consideration as on rehearing granted, instructing the Court to consider Riddle, supra, and Wade v Dep’t of Corrections, 439 Mich 158; 483 NW2d 26 (1992). We further instructed that if the Court again reversed on the duty issue, it was to also consider the governmental immunity issue. On remand, the Court of Appeals again reversed the summary disposition and remanded for trial. 201 Mich App 223, 230; 506 NW2d 261 (1993). The majority of the panel concluded that summary disposition was improper, holding that a genuine issue of fact existed regarding the openness and obviousness of the danger, id. at 227, and that the steps fell within the public building exception to governmental immunity, id. at 230. We granted the defendant’s leave to appeal. 446 Mich 865 (1994).
We reverse. Here, viewing the facts in the light most favorable to the plaintiff, we conclude that there was no genuine issue of material fact for the jury and that summary disposition was appropriate. The plaintiff’s only asserted basis for finding that the step was dangerous was that she did not see it. We hold that the plaintiff has failed to establish anything unusual about the step that would take it out of the rule of Garrett and Boyle. Because the plaintiff has not presented any facts that the step posed an unreasonable risk of harm, the trial court properly granted summary disposition.
Because we find that summary disposition was proper, we do not address the governmental immunity issue.
IV
BERTRAND v ALAN FORD, INC
This premises liability action arose when the seventy-four-year-old plaintiff fell backwards off a step at the defendant’s place of business in Bloomfield Hills on July 10, 1989. The plaintiff sued, alleging that the defendant breached its duty to maintain a reasonably safe premises by failing to place a guardrail along the step or to utilize a sign warning of the step down.
At the plaintiff’s deposition, she testified that she rode with her husband to the defendant’s service garage to get a car serviced. She stated that she had been to this building six or eight times before. While the car was being serviced, she and her husband went into a lounge area. About half an hour later, they were told that the car was ready. Her husband went with a service representative back to the service area. The plaintiff followed. As she was exiting the door, other people were entering. The plaintiff walked through the door and was facing backward as she held the door open for the others to enter. The door opened out onto a sidewalk that was the width of the door. The sidewalk was an elevated walkway that ran along the side of the service area. On the left were vending machines. The cashier’s window was on the right. The door was hinged on the right and opened out. Pictures of the area reveal that a person leaving the lounge area would have to walk through the narrow passage between the open door and the vending machines, step down off the sidewalk, walk around the door, and then step back up onto the sidewálk to reach the cashier’s window. The entire length of the top edge of the sidewalk was painted bright yellow, as well as the vertical part when viewed from the service area. The plaintiff stated:
Q. Okay. Do you know what caught — as I understand it, you fell; is that right?
A. Yes. I was holding the door open for those people to come in, and when they got in, I had to step back to let the door close to go back down the walk.
Q. You were going to go back down the walk rather than going into the drive, is that it?
A. Right, yes. And if the candy machine hadn’t been there, I could have stepped over, but I had to step back and I fell down the step.
Q. Looking at [photograph] number two, I see there is a candy machine there, and if I understand your testimony, you were letting the door close and you were not able to step back, but you had to step out toward the service drive; is that it?
A. Yes.
Q. And when you stepped or when you went into the service drive, is it my understanding that you lost your balance or something or something happened to you?
A. Yes, I was stepping back.
Q. I see. You were stepping back, and as a result you stepped on the curb edge and lost your balance; is that right?
A. Yes.
As a result of the fall, the plaintiff broke the femur bone in her leg.
The trial court granted the defendant’s motion for summary disposition on the basis of Riddle. The court stated:
I don’t see anything hidden about this, nothing latent. How much are you going to warn them about the fact that that great big machine is there, it’s not blocking anything?
The Court of Appeals peremptorily reversed, reasoning that the trial court misinterpreted Riddle. Unpublished order of the Court of Appeals, entered April 23, 1993 (Docket No. 158355). We granted the defendant leave to appeal. 445 Mich 862 (1994).
We affirm. As in Maurer, we agree with the trial court that the plaintiff did not allege a jury submissible claim for liability based on a failure to warn theory because no reasonable juror would disagree that the danger of falling was open and obvious. However, the premises still may be unreasonably dangerous, but not for want of a warning. In contrast to Maurer, when we view the plaintiff’s allegations in the light most favorable to her, we find a genuine issue regarding whether the construction of the step, when considered with the placement of the vending machines and the cashier’s window, along with the hinging of the door, created an unreasonable risk of harm, despite the obviousness or the invitee’s knowledge of the danger of falling off the step. We find one of the illustrations accompanying comment f of Restatement, § 343A apposite:
The A Drug Store has a soda fountain on a platform raised six inches above the floor. The condition is visible and quite obvious. B, a customer, discovers the condition when she ascends the platform and sits down on a stool to buy some ice cream. When she has finished, she forgets the condition, misses her step, falls, and is injured. If it is found that this could reasonably be anticipated by A, A is subject to liability to B. [2 Restatement Torts, 2d, § 343A, comment f, illustration 3, p 221.]
Here, the plaintiff fell backward off a step after holding the door open for other customers to pass through in an area of the defendant’s building where customers were expected to traverse. In the light most favorable to the plaintiff, one can reasonably argue that the defendant should have reasonably anticipated a congested pedestrian traffic pattern causing an invitee to fall off the step.
We cannot find as a matter of law that the risk of harm was reasonable. Because a genuine issue existed regarding whether the defendant breached its duty to protect the plaintiff against an unreasonable risk of harm, in spite of the obviousness or of the plaintiff’s knowledge of the danger, sum mary disposition was inappropriate. Whether this risk of harm was unreasonable and whether the defendant breached a duty to. exercise reasonable care by failing to remedy the danger are issues for the jury to consider.
v
In Maurer v Oakland Co Parks & Recreation Dep’t, we reverse the Court of Appeals and reinstate the trial court’s grant of summary disposition to the defendant. In Bertrand v Alan Ford, Inc, we affirm the decision of the Court of Appeals and remand for further proceedings. We do not retain jurisdiction.
Brickley, C.J., and Boyle, Riley, and Mallett, JJ., concurred with Cavanagh, J.
2 Restatement Torts, 2d, § 343, comment a, p 216.
Section 343A, comment e, provided:
In the ordinary case, an invitee who enters land is entitled to nothing more than knowledge of the conditions and dangers he will encounter if he comes. If he knows the actual conditions, and the activities carried on, and the dangers involved in either, he is free to make an intelligent choice as to whether the advantage to be gained is sufficient to justify him in incurring the risk by entering or remaining on the land. The possessor of the land may reasonably assume that he will protect himself by the exercise of ordinary care, or that he will voluntarily assume the risk of harm if he does not succeed in doing so. Reasonable care on the part of the possessor therefore does not ordinarily require precautions, or even warning, against dangers which are known to the visitor, or so obvious to him that he may be expected to discover them.
See, generally, 62 Am Jur 2d, Premises Liability, §§ 156-158, pp 523-527.
For example, Relph v Nat’l Lumberman’s Bank, 280 Mich 77, 81; 273 NW 399 (1937).
See also Zeglowski v Polish Army Veterans Ass’n of Michigan, Inc, 363 Mich 583, 585-586; 110 NW2d 578 (1961) (no hazardous condition amounting to an unreasonable risk), Cole v Keeler Brass Co, 281 Mich 441, 446; 275 NW 201 (1937) ("no duty ... to prevent careless persons from hurting themselves”), and Relph, supra at 80-82 (no extraordinary circumstances surrounding raised platform).
A similar case is Beardsley v R J Manning Co, 2 Mich App 172, 173-174, 176; 139 NW2d 129 (1966). There, the plaintiff alleged that a sloping ramp was inherently dangerous without a warning of the step or without a handrail or other safety device. The defendants admitted the material facts but denied negligence. The panel distinguished Boyle and Garrett and found that viewed in the light most favorable to the plaintiff, there existed a genuine issue for the jury. See also Nezworski v Mazanec, 301 Mich 43, 60-61; 2 NW2d 912 (1942) (unlit platform and stairway supported jury verdict of negligence).
Garrett, supra at 263-264.
See, generally, 62A Am Jur 2d, Premises Liability, §§ 583, 585, 588, pp 144-151.
MCR 2.116(0(10) provides:
Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.
Unpublished opinion per curiam, issued August 11, 1992 (Docket No. 133237).
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Weaver, J.
We granted leave to consider whether an order of restitution should abate where a convicted criminal defendant died pending appeal of his conviction. To decide this issue it is necessary to clarify our position on the rule of abatement ab initio.
In People v Elauim, we applied the rule of abatement ab initio to dismiss an appeal from, a criminal conviction and erase the criminal conviction and accompanying penal sanctions where a defendant died pending appeal. We continue to believe that it is appropriate to dismiss an appeal upon the death of a convicted criminal defendant, but are not persuaded that abatement ab initio, when applied to compensatory sanctions, is consistent with Michigan law since the 1985 enactment of the Michigan Crime Victim’s Rights Act, MCL 780.751 et seq.; MSA 28.1287(751) et seq., and the 1988 amendment of art 1, §24 of the Michigan Constitution. Instead, we hold that where a convicted defendant dies pending appeal, the appeal should be dismissed, absent collateral consequences not presented here, and the underlying conviction and accompanying compensatory sentencing sanctions should stand. Purely penal sanctions, however, should be abated ab initio because they no longer continue to serve a purpose.
i
On September 20, 1990, defendant Louis Peters entered a plea of no contest to four counts of burning dwelling houses, MCL 750.72; MSA 28.267; two counts of burning real property, MCL 750.73; MSA 28.268; four counts of burning insured property, MCL 750.75; MSA 28.270; and one count of conspiracy to burn insured property, MCL 750.157a; MSA 28.354(1) and MCL 750.75; MSA 28.270. At sentencing, defendant was ordered to serve three years’ probation, to pay a criminal fine of $10,000, and to pay $400,000 in restitution. The restitution was to be divided between the victims, the City of Detroit ($140,000) and Michigan Basic Property Insurance Association ($260,000). Because defendant was suffering from terminal lung cancer, he was not ordered to serve time in jail.
Defendant appealed the amount of the restitution order. However, during the pendency of his appeal, defendant died. On notification of defendant’s death, the Court of Appeals remanded the case for entry of an order dismissing the case ab initio. The Court of Appeals denied the prosecutor’s motion for rehearing, and we denied the prosecution’s leave to appeal the denial of rehearing at that time. On remand, the trial court abated the criminal conviction and $10,000 fine, but held that the $400,000 order of restitution survived the abatement ab initio of the criminal case. The trial court relied on art 1, § 24 of the Michigan Constitution, which guarantees a crime victim’s right to restitution, and the reasoning of United States v Dudley, 739 F2d 175 (CA 4, 1984).
Defendant, by his attorney, appealed the trial court’s ruling regarding the order of restitution. The Court of Appeals reversed, holding that an order of restitution must be vacated when a defendant’s criminal conviction is abated ab initio because of defendant’s death. The prosecution appealed the abatement of the order of restitution. We reverse and reinstate the order of restitution.
II
There is no federal constitutional right to an appeal. However, the perception of appeal as the opportunity to finally determine a convicted defendant’s guilt or innocence is one source of the rule of abatement ab initio. Despite this perception, it is well established in the federal system that, once convicted, a criminal defendant is no longer presumed innocent. Art 1, § 20 of the Michigan Constitution does provide for an appeal of right from a criminal conviction. Even given this appeal of right, a criminal conviction in Michigan also destroys the presumption of innocence. A convicted criminal defendant must prove error requiring reversal. It is also interesting to note that the appeal of right has recently been limited. Although the recent constitutional amendment does not apply in this case, we find that the appeal of right was personal to the defendant and, therefore, died with him.
In literal application, abatement ab initio erases a criminal conviction from the beginning on the theory that all injuries resulting from the crime " 'are buried with the offender.’ ” The reasoning behind abatement ab initio varies among jurisdictions ascribing to the rule. Some jurisdictions distinguish between appeals of right and discretionary review when applying the rule. Those jurisdictions that have rejected the rule of abatement ab initio may dismiss the appeal, abate the appeal, allow the appeal to proceed notwithstanding the defendant’s death, or substitute a personal representative for the defendant.
This Court’s treatment of appeals from criminal convictions on the defendant’s death has varied. In People v Elauim, 393 Mich 601; 227 NW2d 553 (1975), this Court abated ab initio the indictment of a defendant who died pending his appeal from a conviction for first-degree murder. The Elauim Court relied on the reasoning of the United States Supreme Court in Durham v United States, 401 US 481; 91 S Ct 858; 28 L Ed 2d 200 (1971). In Durham, a criminal defendant’s indictment was abated following his death. However, in other cases this .Court has dismissed appeals from criminal convictions that were interrupted by the death of the defendant, apparently allowing' the; convic-. tions to remain intact.
We take this opportunity to clarify our position on abatement ab initio. Where a defendant dies pending an appeal of a criminal conviction, we hold that the appeal should be dismissed, but the conviction retained. The conviction of a criminal defendant destroys the presumption of innocence regardless of the existence of an appeal of right. We therefore find that it is inappropriate to abate a criminal conviction.
Further, it is better policy to allow the litigation to end and the presumptively valid conviction to stand than it is to allow the convicted defendant’s survivors to pursue litigation ad infinitum, in an effort to clear the deceased defendant’s name. We agree with the rationale offered by the Indiana Supreme Court:
The presumption of innocence falls with a guilty verdict. At that point in time, although preserving all of the rights of the defendant to an appellate review, for good and sufficient reasons we presume the judgment to be valid, until the contrary is shown. To wipe out such a judgment, for any reason other than a showing of error, would benefit neither party to the litigation and appears to us likely to produce undesirable results in the area of survivor’s rights in more instances that it would avert an injustice.[ ]
Finally, we see no state interest, under the facts presented in this case, that can be served by allowing an appeal to proceed when the defendant is not available for trial.
hi
Given our decision to dismiss an appeal and retain the conviction where a criminal defendant dies with an appeal pending, we now consider the status of fines, penalties, and orders that may accompany a criminal conviction. The majority of jurisdictions that have addressed this issue have found that the resolution turns on the purpose the fine, penalty, or order is to serve. Typically, jurisdictions have identified two purposes for the sanctions associated with a criminal conviction: penal and compensatory. The majority of jurisdictions abate or dismiss sanctions that are primarily pe nal. However, where the intent behind a fine or order is to compensate the victim, the fine'or order may survive the death of the offender. Although the distinction between penal and compensatory is helpful, it is not always clear. Indeed, with almost any sanction, it is possible to identify both penal and compensatory purposes.
In this case, we address whether an order of restitution should abate on the death of defendant. Although defendant argued that the order was a penalty because it would force him to pay a large sum of money, the order was designed to compensate the City of Detroit Fire Department and Michigan Basic for their combined costs of approximately $456,000. Pursuant to stipulation by the parties, a substantial portion of those costs were to be recouped by the victims through restitution. However, the fact that defendant, now his estate, will experience some- "financial pain” does not transform the restitution order into a primarily penal sanction. Erasing the order of restitution or even attempting to divine the portion of the order that the trial judge acknowledged he hoped would cause some "financial pain” is inconsistent with the Michigan Constitution and the Michigan Crime Victim’s Rights Act. These laws authorized the payment of restitution, because the victims had suffered significant losses as a result of defendant’s criminal conduct.
The Michigan Crime Victim’s Rights Act was enacted in 1985 in response to growing recognition of the concerns of crime victims. The act codifies a crime victim’s right to restitution, while leaving to the discretion of the sentencing judge the form the restitution will take:
[T]he court, when sentencing a defendant convicted of a crime, shall order, in addition to or in lieu of any other penalty authorized by law or in addition to any other penalty required by law, that the defendant make full or partial restitution to any victim of the defendant’s course of conduct that gives rise to the conviction, or to the victim’s estate.[ ]
In 1988, after the enactment of the Crime Victim’s Rights Act, Michigan’s Constitution was amended to further enumerate the rights of crime victims. These laws underscore the rights of crime victims and the compensatory nature of restitution in Michigan.
At sentencing in this case, the Wayne County Prosecutor’s office, on behalf of the Detroit Fire Department, and Michigan Basic, on its own behalf, presented evidence of defendant’s financial victimization of them. The prosecutor requested $179,106.24 to cover the costs incurred by the Detroit Fire Department in extinguishing the fires that were the subject of the defendant’s no contest plea. Michigan Basic reviewed a decade of records involving claims in which defendant was a named insured and discovered that it had paid defendant approximately $800,000 as a result of ninety fires. In twenty-five of those fires, involving payments of approximately $277,000, arson was suspected. After some discussion off the record, the parties orally stipulated to and the trial court adopted a $400,000 restitution figure.
On the basis of some language employed by the trial judge, counsel for defendant argued on appeal that the restitution order was primarily penal. The Court of Appeals apparently agreed. We find that the Court of Appeals and defense coun sel’s narrow focus on a few comments made by the trial judge fails to account for the totality of the trial judge’s considerations at sentencing. There is no doubt that an order of restitution would cause this defendant financial pain, but financial pain does not automatically render the order primarily penal.
The order of restitution was issued under the authority of the Michigan Constitution and the Crime Victim’s Rights Act. Art 1, § 24 and the Crime Victim’s Rights Act were intended to enable victims to be compensated fairly for their suffering at the hands of convicted offenders. It is clear that the Court of Appeals did not recognize that the trial court intended that the order of restitution defray the financial loss suffered by the victims, Michigan Basic, and the Detroit Fire Department. Once the amount of restitution was decided, the trial judge emphasized that the proration of the restitution between the victims was . a matter for them to decide and not a concern for the court or defendant.
Counsel for defendant cross appealed the voluntariness of the plea, arguing that it would be improper to allow a challenged order of restitution to stand. The Court of Appeals did not address the voluntariness of the plea, and we denied leave to appeal that issue. However, the logic that supports dismissing the appeal also supports enforcing the order of restitution.
We reverse the decision of the Court of Appeals and remand the case to the trial court for an order consistent with this opinion.
Brickley, C.J., and Boyle, Riley, and Mallett, JJ., concurred with Weaver, J.
448 Mich 851 (1995).
393 Mich 601; 227 NW2d 553 (1975).
Defendant was also ordered confined to his home for the first year of probation, to pay for the associated costs of that confinement, and not to practice real estate during his probation.
The City of Detroit estimated that it had expended approximately $179,106.24 fighting the fires that were the subject of defendant’s convictions. Michigan Basic testified that of ninety homes owned by defendant that had burned,'twenty-five were listed as resulting from arson. Michigan Basic had paid $277,000 in proceeds for those twenty-five homes.
Defendant also alleged that the plea was improperly induced and involuntary, that defendant was not informed of the consequences of his plea, and that he was denied effective assistance of counsel.
Unpublished order, entered July 16, 1991 (Docket No. 136343).
439 Mich 893 (1991). Justices Brickley, Boyle, and Riley would have granted leave.
The United States Court of Appeals for the Fourth Circuit held that the death of a defendant pending appeal required that the purely penal sanctions abate, but an order of restitution survived.
205 Mich App 312; 517 NW2d 773 (1994).
We denied defendant’s cross appeal regarding the voluntariness of his plea by order dated January 4, 1995. 448 Mich 851.
Ross v Moffit, 417 US 600, 611; 94 S Ct 2437; 41 L Ed 2d 341 (1974).
Herrera v Collins, 506 US 390; 113 S Ct 853; 122 L Ed 2d 203 (1993).
People v Rowell, 14 Mich App 190; 165 NW2d 423 (1968); People v Tate, 134 Mich App 682; 325 NW2d 297 (1984).
Rowell, n 13 supra.
The appeal of right no longer applies to guilty pleas and pleas of nolo contendere. Const 1963, art 1, § 20 as' amended December 24, 1994. On April 1, 1995, this Court amended Michigan Court Rule 7.203 to exclude convictions in criminal cases based on a guilty plea or a plea of nolo contendere from appeals of right.
Other jurisdictions allow a substitute to pursue the defendant’s appeal. See, e.g., State v Makaila, 79 Hawaii 40; 897 P2d 967 (1995). However, we see no reason to allow a substitute to pursue the appeal or to upset a presumptively valid conviction.
United States v Oberlin, 718 F2d 894, 896 (CA 9, 1983), quoting United States v Dunne, 173 F 254, 258 (CA 9,1908).
See, e.g., Hartwell v Alaska, 423 P2d 282 (Alas, 1967) (abatement from the beginning because the presumption of innocence stands until the conclusion of an appeal); Arizona v Griffin, 121 Ariz 538; 592 P2d 372 (1979) (conviction abates from the beginning because society’s interest in protection has been satisfied and punishment is impossible); Maine v Carter, 299 A2d 891 (Me, 1973) (conviction abates because it is moot and for the lack of an indispensable party).
Whitehouse v Indiana, 266 Ind 527; 364 NE2d 1015 (1977).
Vargas v Texas, 659 SW2d 422 (Tex Crim App, 1983).
State v McDonald, 144 Wis 2d 531; 424 NW2d 411 (1988).
Ohio v McGettrick, 31 Ohio St 3d 138; 509 NE2d 378 (1987).
The United States Supreme Court at least partially overruled Durham five years later when it dismissed a defendant’s petition for certiorari upon his death in Dove v United States, 423 US 325; 96 S Ct 579; 46 L Ed 2d 531 (1976). The majority of federal courts has interpreted Dove as overruling Durham only to the extent that Durham would abate ab initio convictions where the defendant had no appeal of right. We are not bound by these decisions because no federal constitutional right is implicated.
Further, the Durham Court appeared to dismiss the distinction between appeals of right and discretionary appeals: "Since death will prevent any review on the merits, whether the situation is an appeal [of right] or certiorari [i.e., a discretionary appeal], the distinction between the two would not seem to be important for present purposes.” 401 US 483, n *. See also United States v Dwyer, 855 F2d 144, 145-146 (CA 3, 1988) (Sloviter, J., concurring); State v McDonald, 138 Wis 2d 366, 370; 405 NW2d 771 (Ct App, 1987) (Sundby, J„ concurring) (affirmed in part and reversed in part) 144 Wis 2d 531; 424 NW2d 411 (1988).
People v Gratopp, unpublished order of the Supreme Court, entered January 28, 1991 (Docket No. 90262); People v Weston, unpublished order of the Supreme Court, entered June 8, 1989 (Docket No. 73131); People v McCree, 383 Mich 755 (1969); People v Lester Smith, 383 Mich 753 (1969).
See, e.g., Whitehouse v Indiana, n 19 supra at 529-530.
Haines v State, 428 So 2d 590 (Miss, 1983).
See, e.g., United States v Dudley, supra; United States v Asset, 990 F2d 208 (CA 5, 1993); United States v Cloud, 872 F2d 846 (CA 9, 1989).
id.
United States v Dudley, supra.
MCL 780.766(2); MSA 28.1287(766)(2).
Art 1, § 24(1) states:
Crime victims, as defined by law, shall have the following rights, as provided by law:
The right to be treated with fairness and respect for their dignity and privacy throughout the criminal justice process.
The right to timely disposition of the case following arrest of the accused.
The right to be reasonably protected from the accused throughout the criminal justice process.
The right to notification of court proceedings.
The right to attend trial and all other court proceedings the accused has the right to attend.
The right to confer with the prosecution.
The right to make a statement to the court at sentencing.
The right to restitution.
The right to information about the conviction, sentence, imprisonment, and release of the accused.
It showed restraint on the part of the trial judge to limit consideration of Michigan Basic’s injuries to the twenty-five suspicious fires, given defendant’s course of conduct.
The parties’ agreement included Michigan Basic’s promise not to pursue federal Rico charges against defendant.
As the parties prepared to negotiate a stipulated amount of restitution, the trial judge stated:
Here’s what I want .... I’m not telling you that I’ve already drawn a bottom line in terms of sentence, but we know as an absolute fact that Mr. Peters has cancer. He’s 67 years old, and he has lung cancer, and, quite frankly, the doctor says that not only would his sentence to prison be detrimental but that, unfortunately, only ten to 15 percent of the patients remain alive for three years. ...
If any — even with that knowledge, do not think for a second that I’m not absolutely ripped up over the thought that someone who would be the instigator and cause of this kind of conduct shouldn’t, even with the lung cancer, go to prison. Don’t think for a moment that it isn’t still in my mind, and I am really torn up about what to do here.
That said, if there were sufficient — and I don’t like — pain, real pain, and part of that, I think, would be, in this case, financial pain, that’s part of a — of a consideration . . . and identify assets to me that I can tie up, literally, so that I don’t have to worry, and I mean like bank accounts. I mean real assets.
I don’t want garbage, and as long as I’m satisfied that I know where those are and I can tie them up, I’m willing to talk, but I want pain, financial pain out of this. At least, maybe that will balance this equation out a little bit. | [
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Mallett, J.
We granted leave in this case to determine whether evidence seized in an improper police search may be used in a separate and independent civil jeopardy tax assessment proceeding. More specifically, we are asked to determine whether financial records detailing sales and purchases of narcotics that were seized during a criminal investigation pursuant to an invalid search warrant are admissible for purposes of a civil tax assessment proceeding.
The Tax Tribunal held that the improperly seized records were admissible; however, the Court of Appeals reversed in favor of petitioner Diane Kivela. We reverse the Court of Appeals determination and find in favor of respondent Department of Treasury. In the intrasovereign context, we hold that in the absence of collusion, unlawfully seized evidence may properly be admitted for purposes of an independent civil tax assessment proceeding.
i
On July 7, 1989, police officers searched the home of petitioner Diane Kivela pursuant to a search warrant. The search warrant was issued on the basis of information provided by an informant who indicated that Ms. Kivela had been selling drugs since July, 1988. As a result of the search, the police officers seized four ounces of marijuana and several financial records documenting the sales and purchases of narcotics.
Kivela was charged with possession of marijuana with intent to deliver. However, the charge was dismissed when the judge held that the search warrant was invalid because it was not supported by probable cause.
In the meantime, however, Kivela’s financial records were turned over to the Department of Treasury. On the basis of the illegally seized financial records, the department determined that Kivela owed unpaid sales, use, personal income, and single business taxes, together with penalties and interest. The department issued a jeopardy tax assessment of $26,079 for unpaid taxes on drug sales between July, 1988, and July, 1989, pursuant to MCL 205.26; MSA 7.657(26).
Kivela filed a petition with the Tax Tribunal in which she argued that the Department, of Treas ury could not use evidence seized during an illegal search as the basis for a civil tax case. Both Kivela and the Department of Treasury moved for summary disposition pursuant to MCR 2.116(C)(10). The Tax Tribunal granted the department’s motion for summary disposition, denied Kivela’s motion, and held that the evidence was admissible.
The Court of Appeals reversed, stating that "the Tax Tribunal is not permitted to base its jeopardy tax assessment upon unlawfully seized evidence, nor may the unlawful search and seizure serve as the triggering event for the tax assessment.” 200 Mich App 545, 552; 505 NW2d 11 (1993). The Court of Appeals noted:
The Michigan Constitution is construed to provide no greater protection against unreasonable searches and seizures than does the Fourth Amendment, absent a compelling reason to apply a different interpretation. Const 1963, art 1, § 11; People v Collins, 438 Mich 8, 11, 25-31; 475 NW2d 684 (1991); People v Cooke, 194 Mich App 534, 537; 487 NW2d 497 (1992). It does not necessarily follow, however, that Michigan’s exclusionary rule must be applied in the same manner as the federal exclusionary rule, nor is Michigan required to follow the interpretation offered by the Second Circuit Court of Appeals. Our Supreme Court , has acknowledged that Michigan’s exclusionary rule differs from and provides greater protection than that established by the United States Supreme Court. In re Jenkins, 437 Mich 15, 28; 465 NW2d 317 (1991). [Id. at 550.]
This Court granted the Attorney General’s application for leave to appeal. 447 Mich 987 (1994).
ii
It is undisputed that under federal authority, the financial records documenting the sales and purchases of narcotics seized from a defendant by one sovereign pursuant to an invalid search warrant, may be used as evidence in a civil tax assessment proceeding by another sovereign. United States v Janis, 428 US 433; 96 S Ct 3021; 49 L Ed 2d 1046 (1976).
In Janis, the United States Supreme Court held that evidence seized by state police officers pursuant to an invalid search warrant may be used in a civil suit brought by the Internal Revenue Service to determine the suspect’s tax liability. A Los Angeles police officer obtained a search warrant from a state court judge and seized $4,940 in cash and incriminating wagering records. The officer notified the irs that Mr. Janis had been arrested for bookmaking activities, and the irs levied upon the cash.
Although Mr. Janis was able to convince a state judge to quash the warrant in a state criminal proceeding, the United States Supreme Court held that "the judicially created exclusionary rule should not be extended to forbid the use in the civil proceeding of one sovereign of evidence seized by a criminal law enforcement agent of another sovereign.” Id. at 459-460. The Court reasoned that the deterrent effect of the exclusionary rule does not outweigh the societal cost that would result from the exclusion of incriminating evidence.
The United States Court of Appeals for the Second Circuit extended the rule of Janis to intrasovereign situations, and held that unconstitutionally seized evidence collected by federal agents could still be used by the irs to determine the suspect’s tax liability for narcotics-related income in a federal civil tax proceeding. Tirado v Comm’r of Internal Revenue, 689 F2d 307 (CA 2, 1982), cert den 460 US 1014 (1983). Similar to the reasoning in Janis, the Tirado court concluded that the deterrence rationale of the exclusionary rule was not furthered by excluding evidence that was seized without the contemplation of use in a subsequent civil tax proceeding. Thus, according to the Second Circuit Court of Appeals, the key inquiry in such cases is whether the unconstitutional search and seizure was motivated by the use of the evidence in the proceeding in which it is presented. The court stated:
Tax deficiency proceedings are too remote from the "zone of primary interest” of the narcotics agents who made the seizures in Tirado’s' apartment. As in Janis, it is not reasonable to suppose that a rule barring use of the evidence in a civil tax proceeding would have materially influenced those agents in their decision whether to make the particular seizures. . . . Nor would agents of the Drug Enforcement Agency be likely to harbor a general motivating interest in assisting the enforcement of civil tax obligations, [id. at 314.]
Therefore, Tirado does not prohibit the use of the federal exclusionary rule in all civil cases, but instead calls for an analysis of the facts of each case. Unless there is collusion between the agency that performed the illegal search and the agency seeking to admit the incriminating evidence, the evidence is admissible. See also Wolf v Comm’r of Internal Revenue, 13 F3d 189 (CA 6, 1993), and Adamson v Comm’r of Internal Revenue, 745 F2d 541 (CA 9, 1984).
The United States Court of Appeals for the Sixth Circuit has taken a different approach than that found in Tirado, although reaching the same result as the Court of Appeals for the Second Circuit in Tirado. In Wolf, federal and local law enforcement officers searched the residence of Michael Wolf on two occasions and "seized 400.2 grams of cocaine, 201 pounds of marijuana, and $143,286 in cash.” Id. at 192.
Approximately four years after Wolf pleaded guilty to one count of possession with intent to distribute approximately twelve ounces of cocaine, the irs issued a notice of deficiency to Wolf when it recalculated his taxable income to include the seized cash, cocaine, and marijuana. The irs also asserted that Wolf negligently failed to report taxable income and wrongly filed a substantial understatement of tax. Id. at 191.
The Tax Court admitted the evidence of the cocaine, marijuana, and cash, and found that Wolf’s taxes were deficient and imposed additions to the tax. Mr. Wolf appealed, and the Court of Appeals for the Sixth Circuit affirmed.
In holding that the Fourth Amendment did not bar the admission of the illegally seized evidence, the court formulated a five-pronged balancing test to determine whether to apply the exclusionary rule to civil tax proceedings. The court considered the following factors:
1. The nature of the proceeding;
2. Whether the proposed use of unconstitutionally seized material is intersovereign or intrasovereign;
3. Whether the search and the second proceeding are initiated by the same agency;
4. Absent an explicit and demonstrable understanding between the two agencies, whether there is statutory regime in which both agencies share resources, particularly resources derived from one of the proceedings; and_
5. The relationship between the law enforcement responsibilities and expertise of the seizing officials and the type of proceeding at which the seized material is being offered.
Upon reaching the decision that the exclusionary rule does not bar the admission of illegally seized evidence during a criminal narcotics investigation in a civil tax proceeding, the court stated:
In this case, the use of the seized cash and drugs as evidence in subsequent civil tax proceedings cannot be said to have been within the zone of primary interest of Agent Brawner. The secondary tax proceedings were civil in nature. They were not intended to punish Wolf for his narcotics violations. Rather, the civil tax proceedings were designed to subject Wolf to the same tax requirements to which all citizens are subject, whether their income derives from legitimate or illegitimate sources. Also, there is no indication that the criminal narcotics investigation and the secondary civil tax proceeding were initiated by the same agency. Further, there was no indication of an explicit agreement between Agent Brawner and agents of the irs. . . . The only factor suggesting a relationship between the purposes of the allegedly unconstitutional search and the secondary civil tax proceedings is the fact that both were initiated by the same sovereign. This factor alone, however, is insufficient to suggest that there exists a close relationship between the purposes of the search and the secondary proceedings. In the absence of such a relationship, it is unlikely that application of the exclusionary rule would further deter future violations. We hold, therefore, that the exclusionary rule does not apply in this case. [Id. at 195-196.]
Thus, regardless of the methodology used, both federal circuits in Tirado and Wolf have rejected the application of the exclusionary rule in civil tax proceedings.
iii
Defendant does not dispute the fact that federal authority does not bar the use of unconstitutionally seized evidence in civil tax proceedings. The defendant continues to contend that the Michigan Constitution provides a greater protection than the Fourth Amendment of the United States Constitution. The Michigan rule on this issue was established in People v Nash, 418 Mich 196; 341 NW2d 439 (1983). See also Collins, supra at 25-29, and Cooke, supra at 537.
In Nash, supra at 207-215, 225-226, this Court held that the Michigan Constitution does not pro vide a greater degree of protection than the United States Constitution unless there is a "compelling reason” to impose a different interpretation. Mr. Carrón L. Nash was convicted by a jury of second-degree murder. However, the Court of Appeals reversed and remanded the case to the trial court, finding that evidence of the victim’s body should have been suppressed because it was discovered as a result of an illegal search. This Court reversed, holding that the evidence of the body was admissible. This Court reasoned that art 1, § 11 of the Michigan Constitution does not provide any greater protection than the Fourth Amendment of the federal constitution. Furthermore, there was no "compelling reason” to do so. See, e.g., People v Beavers, 393 Mich 554; 227 NW2d 511 (1975). The Court stated that the mere fact that weapons and narcotics were involved in the crime.was not compelling enough to create a higher standard per se. Nash, supra at 215. Thus, like the holding in Tirado, supra, the scope of the Michigan exclusionary rule depends on the facts of each case. See also People v Faucett, 442 Mich 153, 158; 499 NW2d 764 (1993), and Collins, supra at 27-29.
This rule was further clarified in Sitz v Dep’t of State Police, 443 Mich 744, 749-763; 506 NW2d 209 (1993). The issue was whether sobriety checkpoint roadblocks, at which motor vehicles are stopped despite the lack of probable cause or suspicion that the driver might be intoxicated, violate art 1, § 11 of the Michigan Constitution. In finding that sobriety checkpoints violate our state constitution, the Court stated that, "claims that art 1, § 11 should be interpreted more expansively than the Fourth Amendment must rest on more than a disagreement with the United States Supreme Court.” Id. at 752-753.
Although Sitz found that Const 1963, art 1, § 11, provided greater protection than is found in the Fourth Amendment, the Court also stated that "[p]roperly understood, the Nash rule compels neither the acceptance of federal interpretation nor its rejection. In each instance, what is required of this Court is a searching examination to discover what law 'the people have made.’ People v Harding, 53 Mich 481, 485; 19 NW 155 (1884).” The Sitz Court further stated:
Today we clarify that the compelling reason test must be interpreted in the context of our observation that the [antiexclusionary-rule] proviso [of Const 1963, art 1, § 11] should not be read as "an interdiction” of the first two clauses, under which this Court "created a body of state constitutional search and seizure law and addpted an exclusionary rule, all before either was subject to a federal floor.” Nash, supra at 214. Thus, "compelling reason” should not be understood as establishing a conclusive presumption artificially linking state constitutional interpretation to federal law. As illustrated by the question presented today, a literal application of the term would force us to ignore the jurisprudential history of this Court in favor of the analysis of the United States Supreme Court announced in Sitz.
The judiciary of this state is not free to simply engraft onto art 1, § 11 more "enlightened” rights than the framers intended. By the same token, we may not disregard the guarantees that our constitution confers on Michigan citizens merely because the United States Supreme Court has withdrawn or not extended such protection. [Id. at 758-759.]
IV
On the basis of the foregoing, the Court of Appeals correctly stated that the "Michigan Constitution is construed to provide no greater protection against unreasonable searches and seizures than does the Fourth Amendment, absent a compelling reason to apply a different interpretation.” 200 Mich App 550, citing Collins, supra at 11 and 25, and Cooke, supra at 537. However, the Court of Appeals incorrectly found that the failure to apply the exclusionary rule would frustrate the deterrent purpose of the rule. We can find no compelling reason to interpret the federal and state constitutions differently. To read the exclusionary rule as providing a greater protection than that established by the federal constitution would serve to render this Court’s pronouncement in Nash, Collins, and Sitz a nullity.
We find little or no support for the conclusion that Michigan law provides a broader suppression remedy. First, in Collins, supra at 31, this Court stated that "[although a number of appellate decisions have referred to the compelling reason standard, little in the way of guidance has been provided concerning its contours and meaning.” The Court suggested, however, that the analysis start with a comparison of the text of the state and federal constitution. When comparing the texts at issue, this Court concluded that "the historical record clearly indicates that the people of Michigan had no intention of imposing more stringent restrictions on law enforcement than is mandated by the Fourth Amendment.” Id. at 32-33, citing Nash, supra at 213. _
Second, we find no "compelling reasons” to hold that the Michigan Constitution provides a greater suppression remedy. The Court of Appeals focused on three possible reasons why the Michigan and federal constitutions should be interpreted differently: (1) the failure to apply the exclusionary rule in this case would frustrate the deterrent purpose of the rule, (2) the burden on the defendant to prove, collusion between the agency that seized the evidence and the agency seeking to admit the evidence is too great, and (3) criminal cases could be used as a "mere” pretext to civil cases. 200 Mich App 550-552.
These concerns have been addressed in Janis and Tirado, supra. In Janis, the United States Supreme Court recognized that the judicially created exclusionary rule is to deter unlawful police conduct. " 'In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.’ ” Id. at 446, quoting United States v Calandra, 414 US 338, 348; 94 S Ct 613; 38 L Ed 2d 561 (1974). However, the Supreme Court held that the deterrent purpose does not extend to evidence subsequently used in civil cases because "[i]t falls outside the offending officer’s zone of primary interest.” Janis at 458. When the Janis rule was extended to intrasovereign situations, the Tirado court similarly held that the deterrent purpose of the exclusionary rule would not be furthered by barring illegally seized evidence from criminal cases.
We agree. Allowing the evidence in this case to be admitted into evidence for purposes of a civil tax proceeding would not hinder the deterrent effect of the exclusionary rule and would not increase the use of criminal cases. as a "mere” pretext for civil cases. The civil tax proceeding in this case is wholly independent of any criminal prosecutions, and there is no evidence that the law enforcement agents who seized the incriminating financial records were motivated by an unethical desire to illegally assist the Department of Treasury.
Because there is no evidence of. bad faith, collusion between agencies, or unethical behavior on the part of the law enforcement agents, allowing the evidence to be admitted in the civil tax proceeding will affect neither the deterrence of the exclusionary rule nor allow an increase in the use of criminal cases as a mere pretext for civil cases. Evidence unlawfully secured by criminal law enforcement agents with the intent to unethically and illegally assist civil law enforcement authorities is not admissible.
We do not find the burden on defendants to show collusion between agencies too great. The burden on defendants is the same for federal and state defendants, thus there is no reason to interpret the federal and state laws differently. With some of the most liberal discovery rules present in Michigan, the burden on Michigan defendants actually seems less than the burden for federal defendants. See MCR 6.201.
Furthermore, unlike the contention of the Court of Appeals, Lebel v Swincicki, 354 Mich 427, 435-440; 93 NW2d 281 (1958) and McNitt v Citco Drilling Co, 397 Mich 384; 245 NW2d 18 (1976), do not support the defendant’s arguments. Although these cases state that "Michigan’s exclusionary rule [has in certain cases been applied] in civil proceedings,” Lebel and McNitt involved removal of blood from a living person, a degree of intrusiveness not present when police armed with a warrant search one’s home. We find these cases inapplicable to the instant case.
Similarly, under the Wolf balancing test, we reach the identical conclusion that the evidence seized in the present case was properly admitted in the civil tax proceeding. By balancing each of the five Wolf factors, we conclude that an application of the exclusionary rule in the instant case would not deter future violations of the Fourth Amendment.
The first prong we must consider, is the nature of the civil tax proceeding. The tax proceeding at issue is a jeopardy tax assessment initiated by the Department of Treasury for unpaid taxes on drug sales between July, 1988, and July, 1989, pursuant to MCL 205.26; MSA 7.657(26). Unlike the dissent, we do not view this proceeding as "quasi-criminal.”
Although it is undeniable that the jeopardy statute at issue is used frequently to aid the taxing of criminal activity, the jeopardy tax statute is not quasi-criminal. Paying taxes is a task shared by all citizens of this state, criminals and noncriminals alike. The jeopardy tax statute simply aids in taxing those who "intend[ ] quickly to depart from the state or to remove property from this state, to conceal the person or the person’s property in this state, or to do any other act tending to render wholly or partly ineffectual proceedings to collect the tax unless proceedings are brought without delay . . . .” MCL 205.26; MSA 7.657(26). Thus, unlike the dissent, we do not view the jeopardy tax proceedings as a "de facto punishment for individuals who are involved in inherently suspect criminal activities.” Cavanagh, J., post at 249. Rather, we view MCL 205.26; MSA 7.657(26) as an aid that allows the Department of Treasury to tax all citizens equally, even in the face of fear that some citizens will quickly remove property or depart from this state.
Moreover, we find it unnecessary to even define a jeopardy tax assessment as criminal or quasi-criminal. The exclusionary rule is designed to protect defendants from illegal searches and sei zures, and to deter police officers from violating a person’s Fourth Amendment rights. In this case, the defendant already reaped the benefits of the exclusionary rule. She avoided a long prison sentence. If we were to extend the exclusionary to civil tax proceedings, we would not only allow this defendant to avoid a long prison sentence, but she would also be allowed to avoid paying the taxes that every citizen of this state must incur.
Second, the Wolf test requires that we determine whether the proceedings were intersovereign or intrasovereign. We find that the secondary proceedings were intrasovereign. It is undeniable that both the Western Wayne Narcotics team officers and the Department of Treasury are intrasovereign because both are agencies of this state. However, as in Wolf although intrasovereign proceedings do weigh in favor of applying the exclusionary rule, "[t]his factor alone ... is insufficient to suggest that there exists a close relationship between the purposes of the search and the secondary proceedings.” Id. at 195.
Third, it is abundantly clear that the criminal and tax proceedings were instituted by different agencies. This most definitely weighs against applying the exclusionary rule in this case. Even the dissent acknowledges that the proceedings were instituted by different agencies, but skirts the issue by recognizing that Governor Engler transferred the Tax Fraud Division from the Department of Treasury. Executive Reorganization Order No. 1992-8, issued December 18, 1992, as Executive Order No. 1992-25 (effective March 15, 1993) (may also be found at MCL 28.701; MSA 21.314[5]). It is true that there is an Executive Reorganization Order that transferred the Tax Fraud Division from the Department of Treasury to the Department of State Police; however, because the effective date of the order was not until March 15, 1993, it does not affect this case.
The last two prongs of the Wolf test require this Court to determine whether there was an "explicit and demonstrable understanding” between the two agencies involved in the case, and examine the relationship between the seizing officials and "zone of interest” of the seizing officials. The dissent argues that the record "reveal[s] curious facts” and argues that "this case reveal[s] a nexus that is simply too close for comfort . . . .” Cavanagh, J., post at 259, 260. However, the dissent acknowledges that there is "no specific proof of cooperation or collusion” in this case. Id. at 258.
In the absence of more than "curious facts” and agreeing with the dissent that there is no direct evidence of bad faith, collusion between the agencies, or unethical behavior on the part of the law enforcement agents, we conclude that the Court of Appeals incorrectly found that evidence seized in an improper police search may not be used as the basis of an independent civil jeopardy tax assess- . ment proceeding. Accordingly, we reverse the decision of the Court of Appeals and reinstate the order of the Tax Tribunal.
Brickley, C.J., and Boyle, Riley, and Weaver, JJ., concurred with Mallett, J.
MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c).
MCL 205.26; MSA 7.657(26) provides:
If the commissioner . . . finds that a person liable for a tax administered under this act intends quickly to depart from the state or to remove property from this state, to conceal the person or the person’s property in this state, or to do any other act tending to render wholly or partly ineffectual proceedings to collect the tax unless proceedings are brought without delay, the commissioner . . . shall give notice of the findings to the person, together with a demand for an immediate return and immediate payment of the tax. A warrant . . . may issue immediately upon issuance of a jeopardy assessment. Thereupon, the tax shall become immediately due and payable. If the person is not in default in making a return or paying a tax prescribed by this act, and furnishes evidence satisfactory to the commissioner . . . under rules promulgated by the department that the return will be filed and the tax to which the commissioner’s . . . finding relates will be paid, then the tax shall not be payable before the time otherwise fixed for payment.
Murphy, P.J., and Wahls, J., formed a majority, while Judge Michael J. Kelly concurred in the result only.
Wolf involved whether the exclusionary rule bars the admission of illegally seized evidence during a criminal narcotics investigation in a civil tax proceeding. In holding that the exclusionary rule does not apply to facts, the Sixth Circuit Court of Appeals commented as follows:
The Supreme Court has required that the deterrence effect must be balanced against the "substantial cost on societal interest in law enforcement by its proscription of what concededly is relevant evidence.” . . . Accordingly, to determine whether the exclusionary rule applies in any particular context, a court must determine whether application of the rule is deemed substantially likely to deter future violations of the Fourth Amendment. [Id. at 193, citing Janis at 453-454; Stone v Powell, 428 US 465, 484; 96 S Ct 3037; 49 L Ed 2d 1067 (1976); Tirado at 310.]
Adamson, like Wolf, dealt with whether the exclusionary rule bars the Internal Revenue Service from using illegally obtained evidence in a civil tax proceeding. The Ninth Circuit Court of Appeals held that because the evidence was not obtained in bad faith, the evidence was admissible for purposes of a jeopardy tax assessment against Adamson. The court stated:
"[W]e do not deal here with egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.” [Adamson, supra at 545.]
The dissent in the instant case states that " Wolf rejected Tirado’s approach that focused predominately on the 'primary zone of interest’ of the officer who had conducted the search.” Cavanagh, J., post at 243-244 (citations omitted). We wholly disagree with such a statement. The Wolf court merely stated that "[t]o rely primarily on the existence of a correlation between an officer’s expertise and authority and the subsequent proceedings, if taken to its logical conclusion, would produce bizarre results.” Wolf, supra at 194 (emphasis added). This statement by the Wolf court does not demonstrate a "rejection” of the Tirado approach, as represented by the dissent. Instead, it expresses the desire to expand the inquiry to include other important factors and to not "rely primarily on the existence of a correlation between the officer’s expertise and authority and the nature of the subsequent proceedings.” Id. (emphasis added).
Furthermore, the dissent cleverly fails to recognize that the Wolf court reached the same conclusion as the Tirado court, despite the introduction of the Wolf balancing test. Thus, unlike the dissent, we do not view the Wolf analysis as a complete rejection of Tirado, since there simply is no support for such a contention. Rather, we rationally view Wolf as an extension and clarification of Tirado.
The Tax Court, for purposes of the tax proceeding, assumed that Wolf’s Fourth Amendment rights were violated. Id. at 192, n 1.
The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state. [Const 1963, art 1, § 11.]
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [US Const, Am IV.]
People v Collins, dealt with whether recorded evidence of a conversation between Collins and a police informant without a valid search warrant was admissible in a criminal trial. This Court noted that it is now well settled that participant monitoring such as was the situation in this case does not violate the Fourth Amendment of the United States Constitution. Thus, on finding that there were no "compelling reasons” to interpret art 1, § 11 of the Michigan Constitution any differently than the Fourth Amendment, this Court held that the evidence was admissible.
[In Nash], Justice Brickley explained that when art 1, § 11 was under consideration by delegates to the 1961 convention, the focus of their concern was on the effect of the then recently decided case of Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961), which required the states to apply the exclusionary rule to Fourth Amendment violations in all cases. Fearing that Mapp had invalidated the third sentence of Const 1908, art 2, § 10, the Committee on Declaration of Rights, Suffrage, and Elections proposed at one point that the following language be substituted for that portion: " 'Evidence obtained in violation of this section shall not be used except as authorized by law.’ ” 418 Mich 211. Far from attempting to expand the protection of the state’s constitutional provision, the committee preferred the substitute language because it would permit "the possibility of a less stringent application of the exclusionary rule if allowed by federal law . . . .”31
. . . Choosing to retain the third sentence aimed at the exclusionary rule, the convention made only stylistic improvements in the wording of art 1, § 11 before adopting and recommending it to the people.
31 418 Mich 212 (quoting Committee Proposals and Reports, Constitutional Convention 1961, Supporting Report, Committee Proposal No 15, pp 7,10).
[Collins, supra at 27-28.]
The Court in Collins pointed to the following language from the Constitutional Convention of 1961:
"The time” is now and the place is here to retain in our constitution in improved form the proviso which will protect the law-abiding citizen and the law enforcement officer.
“Should this proviso later be struck down by the courts as violative of the federal constitution the resulting license of the hoodlum, the burglar, the highwayman, the bank robber, and the narcotics peddler, will be chargeable to those courts and not to this convention.” [Id. at 28, n 33, citing 1 Official Record, Constitutional Convention 1961, p 496. See also People v Smith, 420 Mich 1, 20; 360 NW2d 841 (1984), and People v Catania, 427 Mich 447; 398 NW2d 343 (1986), in which the Court did not find a meaningful distinction between the texts of the federal and state constitutions.]
The dissent in the instant case ignores the fact that there is no compelling reason to interpret the state constitution differently than the federal constitution. By failing to show a compelling reason, the dissent successfully ignores this Court’s holding in Nash, supra, where this Court stated that the Michigan Constitution does not provide a greater degree of protection than the federal constitution unless there is a "compelling reason” to do so. Nash, supra at 207-215 and 225-226. | [
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Weaver, J.
We granted leave to appeal in this medical malpractice case to clarify the permissible scope of cross-examination of expert witnesses. The Court of Appeals reversed a jury verdict of no cause of action against defendants Dr. George P. Schanz and St. Mary’s Medical Center. The Court of Appeals held that the trial court abused its discretion by allowing cross-examination of plaintiff’s expert witness regarding that expert’s prior poor surgical results and prior medical malpractice claims. We reverse the decision of the Court of Appeals and reinstate the verdict of no cause of action for Dr. Schanz and St. Mary’s Medical Center.
i
FACTS
In August 1984, plaintiff Wade W. Wischmeyer injured his back in a fall. He consulted with several doctors over the following months. In January 1985, he consulted with defendant, a neurosurgeon in private practice in Saginaw with medical privileges at defendant hospital, St. Mary’s Medical Center. On May 29, 1985, Dr. Schanz admitted plaintiff to St. Mary’s Medical Center, and on the following day performed a L4-L5 diskectomy with a posterior lumbar interbody fusion (plif). During surgery, two St. Mary’s operat ing room technicians, Mark Nichols and Leah Lowery, assisted Dr. Schanz. Plaintiff alleges that soon after surgery his pain worsened and he experienced numbness in his right leg.
Plaintiff and his wife brought this action for medical malpractice in the Saginaw Circuit Court on May 29, • 1987, alleging that Dr. Schanz breached the standard of care in his treatment of plaintiff and that his injury would not have occurred absent some negligence on the part of Dr. Schanz. Against St. Mary’s, plaintiff raised two theories: first, that St. Mary’s failed to provide a qualified neurosurgeon to assist Dr. Schanz, and second, that Mark Nichols, the operating room technician, was negligent.
Each party relied on expert testimony to establish the appropriate standards of care. Defense counsel for Dr. Schanz called two medical experts who testified that there was no malpractice on the part of Dr. Schanz. Defense counsel for St. Mary’s Medical Center called one expert who testified that there was no negligence on the part of St. Mary’s employees.
The testimony of plaintiff’s only medical expert, Dr. Ronald J. Ignelzi, consumes two hundred pages of the record. On direct examination, Dr. Ignelzi outlined his credentials at length and explained that he had performed six to ten plifs, the type of surgery performed by Dr. Schanz on plaintiff, and that he had performed hundreds of other spinal surgeries. He explained in detail how various surgeries should be performed and concluded that Dr. Schanz performed the wrong procedure on plaintiff and had performed the procedure itself incorrectly. He stated that plaintiff’s symptoms "should not have occurred unless there was some negligence at the time of the procedure.”
On cross-examination, Dr. Ignelzi acknowledged that none of the plif surgeries he had performed had been successful because he had failed to relieve his patients’ pain. However, he denied remembering four other back surgeries that failed, including three failed laminectomies and one failed dorsal rhizotomy. Plaintiff’s counsel objected to the relevancy and prejudicial nature of raising non-PLiF surgeries, but was overruled. Dr. Ignelzi also denied that he had been the subject of a prior medical malpractice action.
The jury trial spanned two weeks. After deliberating for less than one hour, the jury returned a verdict of no cause of action with respect to both defendants. On appeal, plaintiff alleged that the trial court abused its discretion by permitting certain categories of cross-examination to proceed.
ii
CROSS-EXAMINATION
Rule 61 Iff)) of the Michigan Rules of Evidence states:
A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. The judge may limit cross-examination with respect to matters not testified to on direct examination.
A broad range of evidence may be elicited on cross-examination for the purpose of discrediting a witness. The scope and duration of cross-examination is in the trial court’s sound discretion; we will not reverse absent a clear showing of abuse. The trial judge is charged with overseeing attacks on an expert’s credibility and insuring that
questions seeking to elicit evidence indicating bias, prejudice or interest and inconsistent testimony or statements are not unduly limited or improvidently extended. The trial judge must also be alert to questions which harass, intimidate or belittle a witness.[ ]
However, when a case turns on the testimony of one expert compared with that of another, the credibility of each expert is relevant to the disposition of the case. The credibility of a medical expert, therefore, is relevant to the disposition of a medical malpractice case and evidence of an expert’s credibility generally is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice.
We must address two categories of testimony elicited by the defense during its cross-examination of Dr. Ignelzi: prior poor surgical results in non-PLiF back surgeries and prior claims of medical malpractice against him. These categories of evidence are addressed separately below._
A
PRIOR POOR NON-PLIF SURGICAL RESULTS
On cross-examination, defense counsel questioned Dr. Ignelzi regarding back surgeries the doctor had performed in the past. Plaintiff’s counsel entered an objection on unspecified grounds as the cross-examination regarding prior failed surgeries began, but. was overruled after a bench conference. The questioning by defense counsel proceeded as follows:
Q. Doctor, do you recall in 1980 performing surgery on a lady named Cynthia Hughes where you performed a laminectomy and the dura was ripped in a fashion and she was later discharged with the spinal fluid leaking?
A. No, I don’t.
Q. You don’t recall that?
A. No.
Q. Certainly something like that would be so horrible that you wouldn’t forget it, would you?
A. I don’t know what you mean by horrible, but I mean I don’t recall this case.
Q. Do you recall in May of 1979 performing surgery on an individual by the name of Rodgers who underwent a cervical laminectomy and developed a Brown-Sequard syndrome postoperatively?
Counsel for plaintiff objected to the relevancy and prejudicial effect of this questioning, but was overruled.
Q. Do you recall that, where you cut into the spinal cord?
A. What was that again?
Q. In May of 1979 do you recall performing a lamin--a cervical laminectomy on a gentleman by the name of Rodgers where he developed a Brown-Sequard syndrome postoperatively?
Q. Do you recall in January of 1979 surgery performed upon a Mr. Jack Rodgers who underwent a dorsal rhizotomy and wound up a paraplegic following the operation secondary to a hematoma?
A. No.
Q. You don’t recall that?
A. No.
Again, plaintiff’s counsel initiated a bench conference, followed by:
Q. Do you recall performing surgery on a Mr. Eric Woods in August of 1977 who underwent a laminectomy and wound up with a wound infection and postoperative epidural hematoma which resulted in paraplegia?
A. No.
Q. Do you remember that case of yours?
A. I don’t even know that that was a case of mine.
There is some confusion regarding whether plaintiff’s objections arose under MRE 608(b) or MRE 403. We find that both rules were correctly considered and decided by the trial court. The court permitted inquiry into prior non-PLiF surgeries because it felt that those surgeries were rele vant to the expert’s competency. We agree. Further, the court appropriately disallowed impeachment of Dr. Ignelzi on extrinsic matters under MRE 608(b), stating that defendant would be "stuck with” Dr. Ignelzi’s answer. At the conclusion of Dr. Ignelzi’s cross-examination, the trial court properly denied plaintiff’s motion for a mistrial, again holding that the cross-examination did not violate MRE 608(b).
The Court of Appeals disagreed with the trial court’s rulings, citing Heshelman v Lombardi, 183 Mich App 72; 454 NW2d 603 (1990). However, Heshelman is not in conflict with the trial court’s ruling. In this case, Dr. Ignelzi testified that defendant should have undertaken a more conservative course of treatment, implying that a more conservative treatment would have prevented plaintiff’s injuries. Through this testimony, he placed his competency to condemn defendant in question. The cross-examination of Dr. Ignelzi regarding prior poor surgical results, therefore, did not raise extrinsic evidence prohibited by MRE 608. Because the competency of Dr. Ignelzi was properly before the court, evidence pertaining to his credibility was relevant.
It is intended that the Rules of Evidence promote the ascertainment of the truth. Where information is relevant and not unduly prejudicial, it would be unwise to apply MRE 608 so that the jury is deprived of information that would assist it in its task. We believe that this cross-examination was proper because during direct examination Dr. Ignelzi testified that he had performed hundreds of back surgeries, including plips, in order to establish his competency.
The juxtaposition of Dr. Ignelzi’s testimony on direct examination and his conclusion that plaintiff’s condition could only result from some negligence during surgery rendered Dr. Ignelzi’s ability to perform such surgeries relevant. "Gaps or weaknesses in the witness’ expertise are a fit subject for cross-examination, and go to the weight of his testimony, not its admissibility.” Because expert testimony is admitted to assist the trier of fact, it was imperative that opposing counsel be afforded the opportunity to cross-examine Dr. Ignelzi to expose thé weaknesses in his knowledge, skill, experience, training, or education.
We find further that the defendant’s line of questioning was not more prejudicial than probative. MRE 403 states in pertinent part, "[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . .” There is no question that the line of questioning was potentially damaging to Dr. Ignelzi and therefore to plaintiff’s case. We continue to believe that "[witnesses should not be subjected to personal attacks and unsubstantiated insinuations.” Nor will we tolerate studied attempts to "prejudice the jury and divert the jurors’ attention from the merits of the case.” However, evidence does not present a danger of unfair prejudice unless it threatens the fundamental goals of MRE 401 and MRE 403: accuracy and fairness. Gold, Federal Rule of Evidence 403: Observations on the nature'of unfairly prejudicial evidence, 58 Wash L R 497 (1983). Our review of the record persuades us that there was no danger of unfair prejudice resulting from this line of questioning.
B
PRIOR MEDICAL MALPRACTICE CLAIMS
On cross-examination, the following exchange between defense counsel and Dr. Ignelzi occurred:
Q. Have you ever been a defendant in a malpractice suit, Doctor?
A. No.
Q. You haven’t?
A. No.
Q. I know I’ve got it here somewhere, Doctor. I’ve just got to take a moment to find it, if I may. The case of Kristeen [sic] . . .
Q. The Superior Court of the State of California for the County of San Diego in the case of Kristine Loreago and Doris Loreago plaintiffs, versus Ronald J. Ignelzi, do you recall that?
A. I really don’t remember any suit. I never testified in any depositions in this that I’m aware of.
Q. Breach of medical professional obligation?
A. I never saw that document. I don’t recall it.
While prior failed back surgeries are relevant to the competency of an expert witness whose expert opinion regarding defendant’s failure to perform the appropriate type of surgery at the correct level is premised on the number and variety of back surgeries the expert has performed, the mere fact that an expert may have been named in an unrelated medical malpractice action is not probative of his truthfulness under MRE 608 or relevant to his competency or knowledge.
Thus, we find that it was improper for defendant to inquire into this medical malpractice action against Dr. Ignelzi. However, we find that the error was harmless. By the time that this question was raised, Dr. Ignelzi had been thoroughly discredited. He testified that plaintiff’s bad result from the plif procedure should not have occurred absent some negligence in the operating room. Then on cross-examination, he admitted that every time he had performed this surgery it resulted in failure. Consequently, his entire testimony was placed in jeopardy and any error in allowing this question about prior medical malpractice actions was harmless. Plaintiff’s counsel also rehabilitated Dr. Ignelzi on this issue on redirect examination when he elicited testimony to the effect that Dr. Ignelzi never went to trial in the malpractice case referred to by defendant.
Furthermore, because these categories of evidence are distinct, they required separate specific objections in order to preserve both for appeal. However, plaintiff did not object to this line of questioning, nor did he specifically raise the issue in his motion for mistrial. Plaintiff’s attempt to consolidate his appeal of this line of questioning with his appeal of the cross-examination regarding failed non-PLiF surgeries was improper. The Court of Appeals also failed to adequately distinguish between cross-examination regarding prior poor results in back surgeries and prior medical malpractice cases.
Under MRE 103, we review unpreserved error and reverse only if the substantial rights of a party are affected. Here no substantial rights of plaintiff were affected by this line of cross-examination.
in
st. mary’s medical center
Plaintiff alleged two theories of liability against St. Mary’s Medical Center: first, that the hospital was negligent because it did not provide a neuro surgeon to assist Dr. Schanz; and, second, under a res ipsa loquitur theory, that plaintiff would have suffered no injury absent negligence on the part of Mark Nichols. In a medical malpractice case, the plaintiff bears the burden of proving: (1) the applicable standard of care, (2) breach of that standard by defendant, (3) injury, and (4) proximate causation between the alleged breach and the injury. Failure to prove any one of these elements is fatal. Furthermore, evidence of a bad result alone is not sufficient to prevail under the theory of res ipsa loquitur. Where a plaintiff raises res ipsa loquitur in the medical malpractice context, we require that the plaintiff prove that the event (1) is of a kind that ordinarily does not occur in the absence of someone’s negligence, (2) is caused by an agency or instrumentality within the exclusive control of defendant, and (3) is not due to any voluntary action or contribution on the part of the plaintiff.
Plaintiff in this case did not establish a prima facie case under either of his theories of recovery. During Dr. Ignelzi’s cross-examination by St. Mary’s, he specifically stated that the standard of care for plif surgery did not require a second doctor in assistance and that Mark Nichols had not violated any standard of care applicable to an operating room technician. In considering St. Mary’s motion for a directed verdict at the close of plaintiff’s case, the trial judge observed:
My recollection of the evidence is that there is no credible evidence as to the liability of the defendant hospital. However, I know that this is a drastic remedy, and I don’t want to trust my own recollection . . . because I know it’s a drastic remedy.
The Court of Appeals may overturn a jury verdict only if it is against the great weight of evidence. In its summary reversal of the trial court, the Court of Appeals failed to distinguish its reasoning for reversal of the verdict of no cause of action with respect to St. Mary’s Medical Center from its reversal of the verdict with respect to Dr. Schanz. The plaintiff’s theories against each defendant were separate and distinct, and it is apparent from the record that plaintiff failed to carry the burden of proof against St. Mary’s.
We reverse the decision of the Court of Appeals with regard to both St. Mary’s and Dr. Schanz and reinstate the trial court’s verdict of no cause of action.
Brickley, C.J., and Boyle and Riley, JJ., concurred with Weaver, J.
447 Mich 1041 (1994).
203 Mich App 361; 512 NW2d 82 (1994).
After the fall, plaintiff consulted with Dr. Gruca, who treated plaintiff with medication on an out-patient basis. In November 1984, plaintiff consulted Dr. Jennings, whose video deposition was presented at trial. Dr. Jennings indicated to plaintiff that surgery would be required to alleviate plaintiff’s pain. For a second opinion, plaintiff consulted with Dr. Fields in January 1985. Dr. Fields, indicated that a type of fusion surgery would be necessary to relieve the pain, rather than a diskectomy or laminectomy, and he therefore referred plaintiff to defendant, Dr. Schanz who specialized in part in fusion surgeries.
A plif is a surgical procedure that stabilizes the spine by the insertion of bone plugs between vertebrae. Apparently, after disc has been removed by a standard diskectomy, a plif combines the medical procedure of a laminectomy, the cutting of a window in the bone, with the fusion of the bone plugs between vertebrae in vacated disc space.
Mrs. Wischmeyer claimed loss of consortium.
Plaintiff alleged that the fusion procedure was unnecessary and more invasive than necessary.
Wilson v Stilwill, 411 Mich 587, 599; 309 NW2d 898 (1981). See also 3A Wigmore, Evidence (Chadbourn rev), § 944, p 778.
Stilwill, n 7 supra at 599.
Id
Id.
MRE 401 states:
"Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
MRE 403 states in pertinent part:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ....
MRE 608(b) states in pertinent part:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided by Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness ....
When defense counsel asked if he could inquire into prior surgeries performed by Dr. Ignelzi, Judge Heathscott stated:
I would think that would go to his qualifications, and I would think so.
The court stated:
In reviewing the documents submitted by Mr. Fordney last night, I have also reviewed the Michigan Rules of Evidence, and I believe that Rule 608(b) is applicable to this situation. I am not going to allow impeachment of Dr. Ignelzi on a collateral matter, and I’m not going to allow extrinsic evidence. However, I do believe that Mr. Fordney will have the right to ask if the doctor has been terminated from hospital privileges anywhere, but you’re going to be stuck with the answer. I’m not going to allow you to go into any collateral matters, Mr. Fordney. I’m not going to allow you to use any of these documents, but you may ask if he’s been terminated from any privileges.
The extrinsic evidence and collateral matters referenced by the court involved certain federal court cases for which Dr. Ignelzi was under a gag order.
Judge Heathscott stated:
Mr. Maher, I’m not going to grant a mistrial .... Under 608(b), Mr. Fordney can cross examine about specific instances of conduct which he has done. He then must accept the answer of the doctor, and I believe that has been complied with. ... I understand your disagreeing with the suits being mentioned at all, but I want you specifically to address whether Mr. Fordney used extrinsic evidence to prove these specific instances of conduct in violation of my order.
The Court of Appeals stated in relevant part:
The trial court abused its discretion in allowing defense counsel to cross-examine plaintiffs’ expert witness, Dr. Ignelzi, regarding prior poor surgical results and prior medical malpractice claims. Heshelman v Lombardi, 183 Mich App 72; 454 NW2d 603 (1990). This line of questioning was not probative of truthfulness or untruthfulness, and constituted an improper means of impeaching the credibility of Dr. Ignelzi. Id. at 84-85. The cross-examination of plaintiffs’ expert on this basis cannot be considered harmless error. Heshelman, supra. The questions raised unproved accusations of acts' of malpractice in graphic detail and, we believe, thoroughly discredited Dr. Ignelzi before the jury. [203 Mich App 362.]
Heshelman v Lombardi, supra.
Heshelman addressed the admissibility of prior medical malpractice actions. As will be discussed in part ii(b), prior malpractice actions are not generally relevant to the competency of an expert.
MRE 102 states:
These rules are intended to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
Plaintiff acknowledges that prior plif surgeries performed by Dr. Ignelzi are relevant.
People v Gambrell, 429 Mich 401, 408; 415 NW2d 202 (1987).
MRE 702 states:
If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
The substance of the cross-examination in this case regarding prior poor surgical results is distinguishable from People v Chaplin, 412 Mich 219; 313 NW2d 899 (1981), cited by plaintiff. In People v Chaplin, this Court ruled that it was improper to impeach a witness on cross-examination by showing that she was a prostitute, because her moral character was not probative of her propensity for truthfulness. Insofar as the evidence of the witness’ prostitution was relevant to show bias, this Court held further that it should be excluded because the danger of unfair prejudice substantially outweighed its probative value.
Wayne Co Bd of Rd Comm’rs v GLS LeasCo, 394 Mich 126, 134; 229 NW2d 797 (1975) (an expert witness was repeatedly accused of lying and feigning ignorance of relevant information).
Kern v St Luke’s Hosp, 404 Mich 339, 354; 273 NW2d 75 (1978) (defense counsel repeatedly characterized the plaintiff’s expert testimony as "bought” and "collusive”).
See, e.g., Heshelman v Lombardi, supra; ECCO, Ltd v Balimoy Mfg Co, Inc, 179 Mich App 748; 446 NW2d 546 (1989). We need not decide whether evidence of prior medical malpractice would never be relevant.
MRE 103(d) states:
Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
MCL 600.2912a; MSA 27A.2912(1). See also Locke v Pachtman, 446 Mich 216, 222; 521 NW2d 786 (1994).
Locke, n 27 supra at 231.
Jones v Porretta, 428 Mich 132, 150-151; 405 NW2d 863 (1987).
Granstrom v Gray, 365 Mich 349; 112 NW2d 560 (1961); Newton v Huddle, 22 Mich App 314; 177 NW2d 222 (1970); Lake Oakland Heights Park Ass’n v Waterford Twp, 6 Mich App 29; 148 NW2d 248 (1967). | [
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Boyle, J.
The question presented is whether there was sufficient evidence from which to conclude that the defendant possessed cocaine. We hold that there was, and affirm the decision of the Court of Appeals.
i
The events leading to the arrest of the defendant took place on August 30, 1984, in a Kmart parking lot in Livonia, where it appears that undercover officers of the Livonia Police- Department gave $550 in marked funds to a woman named Laurie Clark for the purpose of purchasing cocaine. Sergeant Peter Kunst gave the money to Ms.. Clark, who then drove her car across the parking lot to a fence that ran between the Kmart parking lot and the neighboring McDonald’s parking lot. According to surveillance officers, a man got into her car, and Ms. Clark drove the car several feet before stopping. The same man then left the car, jumped over the fence into the McDonald’s parking lot, got on a motorcycle, and sped away.
The police arrested Laurie Clark and a man named Gordon Grimes for the cocaine delivery in the K mart parking lot. The police did not find any of the marked money in either Ms. Clark’s or Mr. Grime’s possession.
Backup surveillance officers followed the motorcycle for a short distance. Although they lost sight of it in traffic, they managed to record the license plate number. The motorcycle was registered to the defendant, Mark Konrad.
Shortly thereafter, a number of police officers arrived at Konrad’s home. Parked in the driveway was the motorcycle that had been at the scene of the controlled purchase. Sergeant John Jandasek testified that a woman answered the door and let the officers into the house where he arrested the defendant. At that time, the defendant said, "What you are looking for is in a locked room in the basement. I have the keys.” Sergeant Jandasek left the defendant in the custody of other police officers while he went to request a warrant to search the house.
Officer William Bryant testified that he searched the defendant incident to his arrest. In the defendant’s pockets, he found a large roll of currency and a key. Officer Bryant testified that a scout car arrived to take the defendant to the police station. As he was being led away, the defendant said to his wife, "Call Joel and tell him not to come and look at my bike.” The defendant then said to Officer Bryant, "This guy is supposed to come and look at my motorcycle. I think he wants to buy it.” The defendant’s wife asked him for a phone number, and the defendant gave it to her. Mrs. Konrad then began walking toward the kitchen where the phone was located when the defendant said to her, "Not now, do it later.”
Sergeant Kunst testified that when he arrived at the defendant’s home, still undercover, officers were already there awaiting a search warrant. As he waited, he' turned away ten to twelve people who arrived at the house during a forty-five minute period. Just after 6:30 p.m., as he was waiting in the front yard, a young man approached carrying a box. On top of the box was an egg-shaped object wrapped with masking tape and partially covered with a pair of khaki shorts and a Detroit Tigers baseball cap. As the person came close to the house, he asked Sergeant Kunst whether the defendant was home. Sergeant Kunst told the man, later identified as Joel Hamp, that the defendant was not home but that his wife was inside. Sergeant Kunst asked, "Do you have something for him?” Hamp said that he did and walked up the walkway.
As Sergeant Kunst followed, Hamp entered the house. Inside, Sergeant Sitner identified himself as a police officer. Hamp turned, knocked Sergeant Kunst to the floor, and ran out of the house.. Sergeant Kunst and another officer chased the defendant several blocks on foot, before apprehending and arresting him. The egg-shaped object, which Hamp had dropped on the lawn, contained 881.8 grams of cocaine.'
Later, Sergeant Kunst used the key taken from the defendant to open a door in the basement. There he found two scales, boxes of baggies, over one hundred zip-lock baggies, and at least fifteen partially filled or empty bottles of cutting-agents. He also found two sifters, which are used to mix cocaine with diluting powders. Behind paneling in the corner, he found just under $10,000 in cash. From the bedroom, Sergeant Kunst seized a phone with special electronic equipment.
Sergeant Kunst testified that he returned to the police station about midnight, at which point he interviewed the defendant for about thirty minutes. Sergeant Kunst testified that Konrad confessed that he had arranged to purchase cocaine from a man named Chris. He later gave $40,000 as payment for the kilogram of cocaine to a man named Todd who had come to his house. Konrad understood that Chris would be traveling either to Tennessee or Florida to obtain it. On the afternoon of August 30, 1984, Joel Hamp called Konrad and told him that "everything is together,” meaning that Hamp had the cocaine and was ready to deliver it to Konrad. They arranged that Hamp would deliver it to Konrad’s home at seven that evening. Konrad told Officer Kunst that this was to be the fourth such shipment from Chris and Joel. In each of the three previous transactions, Joel had delivered the cocaine to Konrad’s home. Konrad confessed to having earned $80,000 in the last year by selling cocaine, and described how he had spent the profits. He also told Kunst that he had purchased a special phone that could detect wire taps.
Officer Perkins also interviewed the defendant. He testified that Konrad had admitted giving $40,000 to Joel as payment for the cocaine. Perkins also testified that Konrad told him that he knew Joel would be traveling either to Florida or Tennessee to pick up the cocaine. Konrad confessed that he had recently started selling cocaine and that Joel was obtaining the kilogram at a good price.
The defendant was charged with possession with intent to deliver over 650 grams of cocaine, MCL 333.7401; MSA 14.15(7401), and with conspiracy to possess the same amount, MCL 750.157a; MSA 28.354(1). He was tried in December, 1986, and convicted of both charges, but was granted a new trial on his own motion.
In November, 1988, defendant was tried a second time and convicted by a Recorder’s Court jury. After initially reversing the defendant’s conviction, the Court of Appeals affirmed in an unpub lished opinion per curiam. The defendant applied to this Court for leave to appeal. We granted leave "limited to whether there was sufficient evidence to satisfy the element of possession . . . .” 447 Mich 1011 (1994).
n
The defendant claims that the trial court erred in denying his motion for a directed verdict of acquittal on the count of possession with intent to deliver because there was insufficient evidence that he possessed the cocaine. This claim rests on the defendant’s argument that his statements to police should have been excluded under the corpus delicti rule: "the trial court erred in denying the motion for a directed verdict because the record is devoid of any evidence whatever — aside from the evidence contained in the two statements allegedly made by defendant to the police — to support the prosecution’s theory that defendant either constructively possessed the cocaine or that he aided and abetted Hamp in Hamp’s physical possession of the cocaine . . . .” In light of our specific grant order, this argument, which concerns the admissibility of evidence rather than its sufficiency, is not well taken.
Moreover, the argument is fallacious. The corpus delicti rule is designed to prevent the use of a defendant’s confession to convict him of a crime that did not occur. See People v Williams, 422 Mich 381, 391; 373 NW2d 567 (1985); People v Hughey, 186 Mich App 585, 587-588; 464 NW2d 914 (1990). Specifically, the rule provides that a defendant’s confession may not be admitted unless there is direct or circumstantial evidence independent of the confession establishing (1) the occurrence of the specific injury (for example, death in cases of homicide) and (2) some criminal agency as the source of the injury. People v Cotton, 191 Mich App 377, 394; 478 NW2d 681 (1991).
The Legislature has established that no person may legally possess cocaine unless that person falls within a statutory exception, see MCL 333.7401; MSA 14.15(7401); MCL 333.7403; MSA 14.15(7403), and the burden of proving an exception falls on the person claiming it, see MCL 333.7531; MSA 14.15(7531). We have no common-law authority to redefine the body of this crime. Therefore, the corpus delicti was satisfied by evidence independent of defendant’s confession that the cocaine existed and was possessed by someone. See, e.g., United States v Di Orio, 150 F2d 938, 939 (CA 3, 1945) (the corpus delicti for possession of an unregistered still was satisfied by independent evidence of the existence of an unlawful still). The defendant’s contention that proof of the corpus delicti requires evidence that the cocaine was constructively possessed by the defendant is incorrect. "Proof of the identity of the perpetrator of the act or crime is not a part of the corpus delicti.” Di Orio, 150 F2d 939. It is sufficient to show that the crime was committed by someone. See also LaFave & Scott, Criminal Law (2d ed), § 1.4(b), pp 18-19. In the words of a noted authority, the position that the corpus delicti of a crime includes the identity of the perpetrator is "too absurd indeed to be argued with,” because it would require that the entire crime be proved before a confession could ever be admitted. 7 Wigmore, Evidence (Chadbourn rev), § 2072, p 526.
hi
Given that the defendant’s statements to police were properly admitted, we hold that the trial court did not err in denying his motion for a directed verdict. The defendant argues that there was insufficient evidence to establish that he possessed the cocaine in question. Proof of actual physical possession, however, is unnecessary for a conviction under MCL 333.7401; MSA 14.15(7401); proof of constructive possession will suffice. See Wolfe, supra at 508, 519-520; 489 NW2d 748 (1992). Moreover, possession need not be exclusive and may be joint, with more than one person actually or constructively possessing a controlled substance. Id. at 520; United States v Staten, 189 US App DC 100, 105; 581 F2d 878 (1978).
The essential question is whether the defendant had dominion or control over the controlled substance. People v Germaine, 234 Mich 623, 627; 208 NW 705 (1926). In the foremost discussion of what is necessary to have dominion or control over drugs, Judge Posner explained that a defendant "need not have them literally in his hands or on premises that he occupies but he must have the right (not the legal right, but the recognized authority in his criminal milieu) to possess them, as the owner of a safe deposit box has legal possession of the contents even though the bank has actual custody.” United States v Manzella, 791 F2d 1263, 1266 (CA 7, 1986). Similarly, our Court has recognized that, regarding a predecessor statute, it not only "reach[es] the actual peddler of narcotics who carries his stock in trade in hand or secretes it, but it reaches the kingpin of the nar cotics traffic who controls its disposition but never himself possesses the stuff.” People v Harper, 365 Mich 494, 507; 113 NW2d 808 (1962).
This Court also approved the notion of constructive possession in People v Bercheny, 387 Mich 431; 196 NW2d 767 (1972). The defendant, along with five others, had been convicted of possession of heroin, conspiracy to possess heroin, and control of heroin. Id. at 434. When the police entered the house where the arrest took place, the defendants "were found in a small living room in which a quantity of heroin was located, to which all of the defendants were situated in close proximity.” People v Iaconis, 29 Mich App 443, 449; 185 NW2d 609 (1971). The Court of Appeals held that the evidence was sufficient to support a finding that the defendants possessed or controlled the heroin:
The people presented evidence tending to show among other things that, on several occasions, while the premises in question were under surveillance, defendants frequently arrived at the premises and remained there for short periods of time; that certain of the defendants left the premises in a manner which indicated to an officer on the scene, who testified that he had had experience in observing persons under the influence of heroin, that they were under such an influence; that when defendants, as well as others entered the premises, they often went through a procedure, as they did on the night of the raid, i.e., they would kncsk on the door, look through a window fan, knock again, after which a blind was opened in a window, and closed again, and the door was then opened to them; that, on the night of the raid defendants were found in a small room in close proximity to heroin and narcotic paraphernalia; that one defendant, on the night of the arrests, had blood marks on his shirt and a raised black and blue mark and two red dots on his afín, and another had scars on the inner portion of both arms. [Id. at 459.]
This Court granted leave and affirmed, adopting the opinion of the Court of Appeals. 387 Mich 435.
In the present case, there is ample evidence from which a rational trier of fact could conclude beyond a reasonable doubt that the defendant constructively possessed the cocaine through his agent, Joel Hamp. See Wolfe, supra at 514. The evidence permits the conclusion that the defendant had paid for the drugs and that they were his —that is, that he had the intention and power, in the sense referred to by Judge Posner, to exercise control over them. There is evidence that the defendant made a prior arrangement with Joel Hamp and others to purchase a kilogram of cocaine, that he had already paid for the cocaine, that he told Joel to come to his house about seven that evening, and that, after he had been arrested, he had instructed his wife to direct Joel not to come. Joel arrived after 6:30 p.m. and acknowledged that he had something for the defendant.
Although most cases discussing constructive pos session through a defendant’s agents involve agents who have sold controlled substances, ' Michigan courts have recognized that defendants also may constructively possess substances that their agents have bought for them. In People v Davis, 109 Mich App 521, 527; 311 NW2d 411 (1981), the Court held that "a finder of fact could readily conclude that defendant had 'acquire[d] or obtained] possession,’ ” of prescription drugs that a co-worker had - agreed to pick up, pay for, and deliver to the defendant, "whereupon the defendant would reimburse the co-worker for the purchase price.” Id. at 525. The co-worker was apprehended by police after he obtained the prescription but before he delivered it to defendant. The panel rejected defendant’s argument that "since he never had possession of the controlled substance, the most he could have been convicted of is an attempt to obtain a controlled substance . . . .” Id.
Decisions from other jurisdictions support this result. The circumstances strongly indicate that the package carried by Mr. Hamp belonged to the defendant and merely awaited delivery. The United States Court of Appeals for the Fifth Circuit held these facts sufficient to support a finding of constructive possession in United States v Harold, 531 F2d 704 (CA 5, 1976). In that case, defendant Tom Barber was waiting in a car at Houston Intercontinental Airport while his wife picked up an air freight package addressed to him that "contained 160 balloons filled with heroin.” He apparently never took possession of the package, because the defendant and his wife, along with their passenger, Richard Harold, were arrested as she returned to the car. Nevertheless, the court rejected his challenge of the sufficiency of the evidence: "The fact that the package containing the heroin was addressed to Tom Barber, and that his wife picked it up apparently as his agent while he waited outside in his car, is enough to indicate sufficient dominion and control by Tom Barber to support the finding of constructive possession.” Id: at 705.
In addition, the evidence indicates that the defendant had already paid for the cocaine. In some circumstances, courts have held that evidence that a defendant had already paid for cocaine can be sufficient to support a finding of constructive possession. In United States v Russo, 796 F2d 1443, 1461 (CA 11, 1986), the court explained that "[wjhile the evidence might have been clearer on this point, it does tend to show that Sanchez and Granados had a financial interest in and at least part ownership of the drugs until they were distributed, sold, and Sanchez and Granados were paid. This would constitute constructive possession by Sanchez.”
The evidence that the transaction had been completed distinguishes the present case from United States v Batimana, 623 F2d 1366 (CA 9, 1980), on which the defendant relies. Like Mr. Konrad, the defendants in Batimana did not have actual possession. Unlike Mr. Konrad, however, the defendants in Batimana were shown only to have viewed the contents of the drug package and had not yet completed their transaction. "[F]or all that appears, further negotiating may have remained before Lavadia [the deliverer in Batimana] would have relinquished his dominion and control . . . .” Santiago v United States, 889 F2d 371, 376 (CA 1, 1989).
Defendant also points to the decision by the United States Court of Appeals for the Sixth Circuit in United States v Ward, 37 F3d 243, 248 (CA 6, 1994), for the proposition that "[fronting cocaine, without additional elements of control, is nothing more than a variation on the traditional buyer-seller relationship.” That case, however, was a prosecution of a continuing criminal enterprise under 21 USC 848. The passage cited by defendant concerns whether the government had proven that narcotics laws were violated by people "for whom the defendant is an organizer or supervisor . . . .” The issue, in other words, was whether the defendant controlled, supervised or managed the people selling the drugs. 37 F3d 247. The case stands for the proposition that a defendant does not supervise or manage a person within the meaning of 21 USC 848 simply by selling him cocaine on credit. It does not address the question whether the'defendant was controlling the cocaine. More importantly, it does not address the role of the person receiving, as opposed to selling, the cocaine on credit.
IV
For the foregoing reasons, we hold that there was sufficient evidence from which a rational trier of fact could conclude that the defendant possessed the cocaine in question. Because of our resolution of this issue, we need not address the sufficiency of the evidence supporting the prosecutor’s alternate theory — that the defendant aided and abetted Mr. Hamp. Therefore, we affirm the decision of the Court of Appeals.
Riley, Mallett, and Weaver, JJ., concurred with Boyle, J.
The source of the facts described thus'far is the prosecution’s response to a motion to suppress filed before the defendant’s first trial. This information was not presented at the trial in question. We include it solely as background.
Because of a court reporter error, part of the transcript of the second trial is unavailable, including portions of Officer Kunst’s and Officer Perkins’ testimony. We rely on the officers’ testimony as it appears in the transcript of the first trial because defense counsel has stipulated, both in his brief and at oral argument, that the officers’ testimony at the second trial was essentially the same as it was at the first trial.
The Court reversed defendant’s conviction on the ground that the prosecutor had violated the Interstate Agreement on Detainers. MCL 780.601; MSA 4.147(1). On the prosecutor’s application for leave to appeal, however, this Court ordered the Court of Appeals to direct the Recorder’s Court to hold a hearing and make findings about whether the defendant had ever requested a final disposition. Because it had been the prosecutor, not the defendant, who asked for a trial in state court under the iad, the Court proceeded to aifirm the conviction.
Although the defendant challenges the sufficiency of the proofs generally, he does not specifically challenge ■ the sufficiency of the evidence regarding intent to deliver. We note that the evidence, including the quantity and packaging of the substance, is sufficient to justify a finding that the possessor intended to deliver the drugs. Cf. People v Wolfe, 440 Mich 508, 524; 489 NW2d 748 (1992).
This Court also distinguished State v McGee, 473 SW2d 686 (Mo, 1971), relied on by the defendant. That case involved marijuana found in containers (the heroin in Bercheny was in open piles) in a house that the defendant shared with two friends. 473 SW2d 687. Consequently, the presence of the marijuana "did not raise the same inference as in the instant case.” 387 Mich 434-435.
Even in a case relying on circumstantial evidence, the prosecution need not negate every reasonable theory consistent with the defendant’s innocence, but merely introduce evidence sufficient to convince a reasonable jury in the face of whatever contradictory evidence the defendant may provide. People v Wolford, 189 Mich App 478, 480; 473 NW2d 767 (1991); People v Gravedoni, 172 Mich App 195, 197; 431 NW2d 221 (1988); People v Daniels, 163 Mich App 703, 707; 415 NW2d 282 (1987).
The dissenting opinion argues that "[tjhere was no evidence produced at trial from which a reasonable jury could conclude beyond a reasonable doubt that” Hamp was an agent of the defendant for the purpose of this transaction. Post at 283. The dissent appears to assume that if Hamp was not the criminal equivalent of the defendant’s full-time exclusive employee, then the defendant cannot be found responsible for any of his acts. This is not the case, even under formal agency principles' which provide for agents "authorized to conduct a single transaction or a series of transactions not involving continuity of service.” Restatement Agency, 2d, § 3(2), p 15. A "special agent” can bind a principal by contracts or conveyances that he is authorized to make. See Restatement Agency, 2d, § 161A, pp 382-383; Rowen & Blair Electric Co v Flushing Operating Corp, 66 Mich App 480; 239 NW2d 633 (1976).
We do not hold that Joel Hamp was the criminal equivalent of the defendant’s general agent, which might render the defendant liable for any cocaine Hamp possessed during that time. We hold only that there is sufficient evidence to convict the defendant of possessing cocaine that had been procured by Hamp but that belonged to the defendant. Assuming arguendo that the Restatement principles govern, it provides that wide discretion regarding the assigned transaction is consistent with special, as opposed to general, agency. Restatement Agency, 2d, comment to § 3, p 16.
This appears to reflect the practical reality that law enforcement is much more likely to detect and apprehend drug dealers than drug buyers, and that relatively greater penalties for drug dealers make them more likely to go to trial and subsequently appeal their convictions, leading to more published appellate decisions.
The dissenting opinion asserts that we have "neglect[ed] to state the active role the defendant[s] played in the distribution and sale of these drugs.” Post at 287. The dissent’s statement that "[o]bviously, a finding of constructive possession was based on much more than the defendant’s financial interest in the drugs,” id. at 288, misrepresents the Russo opinion. The passage at issue, including the portions omitted by the dissenting opinion, state that although the defendants’ involvement was more than financial, their financial interest alone would be sufficient to support a finding of constructive possession:
Sanchez contends that the evidence does not show that he was ever in actual or constructive possession of the drugs. While the evidence might have been clearer on this point, it does tend to show that Sanchez and Granados had a financial interest in and at least part ownership of the drugs until they were distributed, sold, and Sanchez and Granados were paid. This would constitute constructive possession by Sanchez. In any case, Sanchez did aid and abet the possession of the drugs at Tampa by participating in supplying them and participating in planning their importation into Tampa. His actions manifested his intent to aid in the commission of an offense, and he shared criminal intent with those who actually possessed the drugs at Tampa. When we view the evidence in a light most favorable to the government, we hold that the evidence was sufficient for the jury to find beyond a reasonable doubt that Sanchez was guilty of possessing with intent to distribute marijuana and methaqualone .... [796 F2d 1461.] | [
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Brickley, C.J.
In this case we must decide whether medical benefits provided under an out-of-state no-fault automobile insurance plan in compliance with the laws of that state may be set off as "benefits” under § 3109(1) of the Michigan no-fault act. We would hold that out-of-state insurance benefits that are required to be provided by state or federal law are "benefits” under that section and may be set off accordingly.
i
In the summer of 1990, Marisa DeMeglio was injured when her. bicycle was hit by a car in Oakland Township. The car was driven by Brian Sweeney and owned by his father, Michael Sweeney. Michael Sweeney had purchased no-fault insurance for the vehicle in Michigan from the defendant, Auto Club Insurance Association.
At the time of the accident, Marisa was twelve years old and resided with her parents in Pennsylvania. She was in Michigan to visit her grandparents. Marisa’s parents had a Pennsylvania no-fault insurance policy from State Farm, but did not maintain any personal protection insurance under § 3101(1) of the Michigan no-fault act, and were not required to do so.
Marisa’s injuries were serious, and she was hospitalized for seven days. State Farm paid for the first $10,000 of Marisa’s medical bills, as required by Pennsylvania law. 75 Pa Cons Stat Ann 1711. In addition to their policy with State Farm, Mari sa’s parents sought coverage under Mr. Sweeney’s no-fault policy with the defendant. The defendant agreed to pay all medical costs beyond $10,000. It refused, however, to duplicate the money paid by State Farm, arguing that § 3109(1) of the Michigan no-fault act compelled it to subtract benefits required to be provided by the laws of any' state from the insurance benefits otherwise payable for the injury under Michigan law.
The plaintiff filed suit against Auto Club, arguing that the money provided by State Farm was not a "benefit” under § 3109(1) and that the section was inapplicable. The trial court agreed and granted the plaintiff’s motion for summary disposition. The defendant appealed in the Court of Appeals and that Court affirmed. 202 Mich App 361; 509 NW2d 526 (1993). The defendant then appealed in this Court. We reverse.
ii
A
The Michigan no-fault act requires that any owner or registrant of a motor vehicle in this state carry automobile insurance that includes personal protection insurance. MCL 500.3101(1); MSA 24.13101(1). A person suffering bodily injury in an accident involving a motor vehicle while not an occupant of a motor vehicle, who does not own and is not required to own no-fault insurance as provided by § 3101(1) of the act, shall claim personal protection insurance benefits from the insurers of the owners or registrants of the motor vehicles involved in the accident. MCL 550.3115(l)(a); MSA 24.13115(l)(a). Because Marisa DeMeglio was not covered under a Michigan no-fault insurance policy, and was not required to obtain such coverage, Auto Club, the insurer of the owner of the only motor vehicle involved in this accident, is responsible for her medical bills.
Auto Club points out, however, that Marisa DeMeglio has already received $10,000 from her parents’ insurance policy with State Farm. The defendant argues that it should be allowed to set off this money under § 3109(1) of the no-fault act. That section provides:
Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury. [MCL 500.3109(1); MSA 24.13109(1}.]
The plaintiff, in opposition, argues that the money she received from State Farm was not a "benefit” as that word is used in this section. In order to resolve this issue, it is necessary for us to examine how this Court has previously interpreted § 3109(1).
B
The plaintiff bases her interpretation of the word "benefit” in § 3109(1) primarily on two cases decided by this Court, LeBlanc v State Farm Mut Automobile Ins Co, 410 Mich 173; 301 NW2d 775 (1981), and Profit v Citizens Ins Co, 444 Mich 281; 506 NW2d 514 (1993).
In LeBlanc, the plaintiff received Medicare benefits to pay for the extensive hospitalization and outpatient treatment he required as a result of a serious pedestrian-automobile accident. In addition to Medicare coverage, the plaintiff also possessed a no-fault policy with State Farm. State Farm willingly paid benefits with respect to items not covered by Medicare, but it refused to compensate the plaintiff for those expenses that Medicare paid. The plaintiff brought suit to force State Farm to pay the full cost of his medical expenses. Id. at 188-189.
State Farm argued that Medicare benefits were "[benefits provided. or required to be provided under the laws of any state or the federal government” and were required to be subtracted from benefits otherwise owed to the plaintiff under § 3109(1). This Court, however, found that the benefits were "other health and accident coverage” under a related section of the no-fault act, § 3109a, which provides:
An insurer providing personal protection insurance benefits shall offer, at appropriately reduced premium rates, deductibles and exclusions reasonably related to other health and accident coverage on the insured. The deductibles and exclusions required to be offered by this section shall be subject to prior approval by the commissioner and shall apply only to benefits payable to the person named in the policy, the spouse of the insured and any relative of either domiciled in the same household. [MCL 500.3109a; MSA 24.13109(1).]
This Court held that because the plaintiff had not elected to coordinate his Medicare benefits with his no-fault benefits, payments made on behalf of the Medicare program could not be subtracted from the no-fault benefits due under his policy. LeBlanc, supra at 206-207.
Similarly, in Proñt, the insured’s guardian sued the defendant insurance company, claiming that, because the insured did not elect to coordinate his policy’s work-loss benefits with his other accident coverage under § 3109a, the defendant was not entitled to subtract the insured’s social security disability benefits from those same work-loss bene fits under § 3109(1). The defendant argued that the benefits were appropriately subtracted under § 3109(1).
This Court held that social security disability benefits are benefits provided under federal law within the meaning of § 3109(1), and not, "other health and accident covérage,” within the meaning of § 3109a. On the basis of our reasoning in LeBlanc, supra, the term "coverage” was deemed to include only those benefits that are "similar” to those provided by policies of insurance issued by private insurers. This type of policy provides accident coverage that is generally available to and purchased by employers for their employees or by the employees themselves. Social security disability benefits, which are provided as part of a mandatory, comprehensive social welfare entitlement program, providing benefits to all wage earners and paid for by all taxpayers, were held to be dissimilar to this type of insurance policy. They were, however, held to be "benefits provided or required to be provided” under the laws of the federal government. Therefore § 3109(1) applied, and it was appropriate for the defendant to subtract this money from the benefits otherwise owed under its policy with the plaintiff. Proñt, supra at 287-288.
c
The plaintiff argues that in LeBlanc and Proñt this Court defined the word "benefit” in § 3109(1) to mean benefits provided as a part of a mandatory, comprehensive social welfare entitlement program generally providing benefits to all persons who have been wage earners, and dependents of such persons, largely paid for by taxes from all wage earners. See Proñt, supra at 287. We do not agree. Instead, we believe a more accurate reading of LeBlanc and Profit reveals that those cases define the parameters of the phrase "other health and accident coverage” in § 3109a, rather than those of the word "benefit” in § 3109(1).
After describing the characteristics of Medicare benefits, the Court in LeBlanc analyzed whether this type of benefit should be set off under § 3109(1) or were required to be coordinated with other health and accident coverage by § 3109a. The two sections were characterized as covering two different types of benefits that overlapped in part. LeBlanc, supra at 201. In one sense, § 3109a was more broadly interpreted than § 3109(1), because the latter section is limited in its scope to benefits from a public source:
It is indisputable that § 3109(1) contemplates benefits derived from a collateral governmental source; it is not equally indisputable that § 3109a applies only to "other health and accident coverage” obtained from a collateral private source. On its face, § 3109a is not so limited. [Id. at 202.]
We then proceeded, however, to define the scope of the word "coverage” in § 3109a to be more narrow than that of "benefits” in § 3109(1):
In a general sense, benefits are those things which promote an individual’s welfare, advantage or profit. In contrast to § 3109(1) is the later-enacted § 3109a, which more specifically speaks to other health and accident coverage. "Coverage,” a word of precise meaning in the insurance industry, refers to protection afforded by an insurance policy, or the sum of the risks assumed by a policy of insurance.
We are also of the view that the Legislature’s enactment of § 3109a, which is narrowly limited to "coverage” and which is not expressly confined to private forms of such "coverage,” evinces an intent to provide unique treatment to health and accident insurance, as opposed to other perhaps equally duplicative ’’beneñts.” [Id. at 203-204. Emphasis added; citations omitted.]
The word "coverage” is therefore a subset of the word "benefits,” although § 3109a covers some benefits that § 3109(1) does not. This is because "coverage” refers to private as well as public benefits, whereas the benefits under § 3109(1) must be "provided or required to be provided under the laws of any state or the federal government.”
The Court in LeBlanc then compared Medicare to other forms of health and accident coverage that are irrefutably within the scope of § 3109a, and concluded that there is no principled way to distinguish Medicare from these other forms of coverage. Consequently, Medicare benefits were held to fall under the impetus of § 3109a.
This Court in LeBlanc did not, therefore, define the scope of the term "benefit” narrowly, as the plaintiffs argue. Rather, we left "benefit” as a relatively open term, but held that where a benefit is also "coverage” under § 3109a, that section must be applied. This analysis has been clarified and reiterated in subsequent cases, including Crowley v DAIIE, 428 Mich 270; 407 NW2d 372 (1987), Tatum v Government Employees Ins Co, 431 Mich 663; 431 NW2d 391 (1988), and Profit, supra.
In Crowley, this Court held that § 3109(1) allowed the defendant insurance company to subtract medical benefits provided by the government pursuant to 10 USC 1071 et seq. to a serviceman in the United States Navy from benefits owed under his insurance policy. To evaluate whether these benefits fit within the definition of "benefits” in § 3109(1), we used the test set forth in Jarosz v DAIIE, 418 Mich 565, 577; 345 NW2d 563 (1984). Under the Jarosz test, state or federal benefits "provided or required to be provided” must be deducted from no-fault benefits under § 3109(1) if they: 1) serve the same purpose as the no-fault benefits, and 2) are provided or are required to be provided as a result of the same accident. Crowley, supra at 275-276, citing Jarosz, supra at 577.
Only after the Court in Crowley determined that the medical payments at issue were benefits under § 3109(1) did it turn to the question whether the payments were also "other health and accident coverage” under § 3109a. The Court found that it did not need to make this determination because § 3109a was inapplicable to the facts in question.
We have concluded that there is no need to decide in the instant case whether military medical benefits are "other health and accident coverage” within the meaning of § 3109a because § 3109a applies only to benefits payable to the person named in a no-fault policy, his spouse, and any relative of either domiciled in the same household. [Crowley, supra at 278.][ ]
The majority in Crowley did not evaluate whether the payments at issue were received as part of a large universal entitlement program. This analysis is relevant only to a determination whether a benefit is similar to private health or accident insurance and might therefore constitute coverage under § 3109a. Because we found § 3109a to be inapplicable in Crowley, this "similarity analysis” was irrelevant to the outcome of the case.
By contrast, in Tatum, the plaintiff was within the class of people eligible for the coordination of benefits under § 3109a. This Court was thereby faced with the questions it was not faced with in Crowley: whether medical care supplied by the military under 10 USC 1071 et seq. qualifies as coverage under § 3109a, and, if so, whether § 3109(1) or § 3109a should be applied.
We concluded that the medical care provided in Tatum was both a "benefit” under § 3109(1) and "coverage” under § 3109a. As a consequence, we held that § 3109a must be applied:
In short, pursuant to § 3109(1), plaintiff’s military medical benefits normally must be subtracted from his no-fault insurance benefits. Further, our resolution of Nyquist [v Aetna Ins Co, 404 Mich 817; 280 NW2d 792 (1979)] and our decision in LeBlanc require the conclusion that plaintiff’s military medical benefits constitute "other health and accident coverage” pursuant to § 3109a, requiring defendant to offer plaintiff a coordinated no-fault policy. The defendant has conceded that this did not occur. Therefore, as in LeBlanc, the setoff mandated by § 3109(1) may not be employed. [Tatum, supra at 670-671.][ ]
Finally, in Profit, the plaintiff again claimed that the benefits at issue, in this case social security disability benefits, fell under the ambit of § 3109a, whereas the defendant maintained that § 3109(1) should be applied and the benefits set off pursuant to that section. The Court used the "similarity test” from LeBlanc and concluded that social security disability benefits were not similar to those provided by policies of insurance issued by private insurers. Hence, these benefits were not "coverage” under § 3109a. They were, however, benefits provided or required to be provided under the laws of the federal government. Therefore, social security disability payments were required to be subtracted from work-loss benefits otherwise payable under a no-fáult insurance policy pursuant to § 3109(1). Profit, supra at 287-288.
In the cases discussed above, this Court has developed certain rules governing the application of § 3109(1) and § 3109a. First, whether a benefit is a "benefit” under § 3109(1) or "coverage” under § 3109a requires the application of two separate tests, the Jarosz test to determine the former, and the LeBlanc "similarity” test to determine the latter. Jarosz, supra at 577, LeBlanc, supra at 205. Second, a benefit may be a "benefit” under § 3109(1), "coverage” under § 3109a, neither, or both: The applicability of the sections is not an "either-or” proposition. Tatum, supra at 670. Third, if the benefit falls under the ambit of both sections, a court must initially apply § 3109a. The subtraction of § 3109(1) benefits from benefits otherwise payable under the no-fault insurance policy is not permitted in this situation, unless coverage was coordinated under § 3109a. Tatum, supra at 670-671; LeBlanc, supra at 206. Finally, when only one section is applicable, that section is applied without reference to the other. Crowley, supra at 278-280; Proñt, supra at 288.
We now turn to the task of applying these rules to the facts of the present case.
in
A
The first step in our analysis is to use the tests enumerated above to determine whether § 3109(1) and § 3109a apply to-the present situation. We find that while § 3109(1) is applicable, § 3109a is not.
The Jarosz test requires that state or federal benefits "provided or required to be provided” be subtracted from no-fault benefits otherwise payable to the insured under § 3109(1) if they: 1) serve the same purpose as the no-fault benefits, and 2) are provided or are required to be provided as a result of the same accident. Jarosz, supra at 577.
It is undisputed that the benefits received by Marisa DeMeglio from State Farm were required to be provided by the Pennsylvania state government. The Pennsylvania no-fault act provides:
An insurer issuing or delivering liability insurance policies covering any motor vehicle of the type required to be registered under this title . . . shall include coverage providing a medical benefit in the amount of $10,000 .... [75 Pa Cons Stat Ann 1711.]
The medical benefit is required to cover first parties with respect to injuries arising out of the maintenance or use of a motor vehicle. 75 Pa Cons Stat Ann 1712.
The medical benefit under Pennsylvania’s no-fault law was a benefit "provided or required to be provided under the laws of” Pennsylvania even though it was funded with no-fault insurance premium dollars and was paid to DeMeglio by a private insurer, State Farm, rather than tax dollars collected and disbursed by Pennsylvania. See Mathis v Interstate Motor Freight System, 408 Mich 164, 186; 289 NW2d 708 (1980).
Moreover, it is clear that these benefits serve the same purpose as the medical benefits provided by our no-fault insurance plans: to provide medical coverage in the event of an accident involving a motor vehicle. Both the benefits from State Farm and the benefits from the defendant were required to be provided as the result of the same accident. We conclude that the requirements of the Jarosz test are met under the facts of this case, and that § 3109(1) is applicable.
The same is not true of § 3109a, however. That section restricts its applicability to benefits payable to certain persons:
The deductibles and exclusions required to be offered by this section shall be subject to prior approval by the commissioner and shall apply only to benefits payable to the person named in the policy, the spouse of the insured and any relative of either domiciled in the same household. [MCL 500.3109a; MSA 24.13109(1).]
Ms. DeMeglio is not named in the relevant policy, nor is she related to anyone named therein. Consequently, § 3109a has no application to the present case. See Crowley, supra at 279-280.
B
Our conclusion that the payments made by the out-of-state insurer were benefits for purposes of § 3109(1) is further cemented by looking to the purpose behind the provision. Such an examination is important because we seek to give effect to the intent of the Legislature as expressed in the statute. Dussia v Monroe Co Employees Retirement System, 386 Mich 244; 191 NW2d 307 (1971). As Justice Boyle stated in, her concurrence in Proñt, supra at 293, § 3109(1) was designed to reduce the cost of no-fault premiums by reducing the potential liability of insurance carriers.
However, because the system was mandatory, it was imperative to contain costs so that vehicle owners or registrants could afford to purchase insurance policies. Therefore, the Legislature mandated subtraction of "[b]enefits provided or required to be provided under the laws of any state or the federal government . . . from the personal protection insurance benefits otherwise payable for the injury.” MCL 500.3109(1); MSA 24.13109(1).
The Legislature, by creating this reduction, lowered insurance premiums by reducing the risk that insurance companies are liable for.
The mandatory subtraction of benefits "provided or required to be provided” pursuant to state or federal law allows insurers to anticipate the risk being secured. If state or federal law provides that the benefit is to be provided by a source other than the no-fault insurer, the no-fault insurer is not securing that risk and can reduce the basic no-fault premium accordingly. [Id. at n 6.]
Thus, our conclusion that out-of-state insurance benefits are included in the definition of benefits under § 3109(1) undoubtedly furthers the purpose behind this provision. Insurance companies can now reduce the risk they are insuring and pass this saving on to the consumer in lower premiums.
IV
Because the benefits at issue are "[bjenefits provided or required to be provided under the laws of any state or the federal government” under § 3109(1), and because § 3109a is inapplicable to these benefits, § 3109(1) should be applied. The medical benefits provided by State Farm should be subtracted from the benefits otherwise payable for the injury under Michael Sweeney’s no-fault policy with the defendant. The defendant, of course, still would be responsible for whatever payments are required under its policy beyond the disputed $10,000.
We would reverse the decision of the Court of Appeals.
Levin and Riley, JJ., concurred with Brickley, C.J.
The United States Congress has since eliminated the operative effect of LeBlanc by enacting the Omnibus Budget Reconciliation Act of 1980,- 42 USC 1395b, which mandated that Medicare is secondary to automobile insurance where coverage under such insurance is available. See Profit, supra at 285.
We recognize that this important aspect of LeBlanc may have been unintentionally obfuscated because of footnote 53 of that opinion, which stated that, "Our characterization of Medicare receipts as 'benefits’ does not contradict our determination that such receipts do not constitute governmental 'benefits,’ as that term is employed in § 3109(1).” Id. at 206, n 53. This footnote, however, simply points out that the use of the word "benefits” in the main text was not meant to contradict the holding of the case, that Medicare receipts constituted "coverage” under § 3109a, and therefore should be evaluated under that section and not under § 3109(1). Subsequent discussion by this Court has clarified that footnote 53 should not be read as a substantive limitation on the definition of the word "benefits” as it appears in § 3109(1). See below.
The relevant provision states: "a member of a uniformed service who is on active duty is entitled to medical and dental care in any facility of any uniformed service.” 10 USC 1074(a).
The deductibles and exclusions required to be offered by this section shall be subject to prior approval by the commissioner and shall apply only to benefits payable to the person named in the policy, the spouse of the insured and any relative of either domiciled in the same household. [MCL 500.3109a; MSA 24.13109(1).]
It is worth noting that had the plaintiff in Tatum been offered and taken the opportunity to coordinate his health and accident coverage under § 3109a, it would have been appropriate to set off his government benefits under § 3109(1). Id. at 670-671. | [
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D. E. Holbrook, P. J.
This is an appeal from a decision of the Michigan Employment Relations Commission (hereinafter called MERC) ordering the defendant City of Mt. Clemens (hereinafter called city) to cease and desist from refusing to bargain with the Mt. Clemens Fire Fighters Union, Local 838, I.A.F.F. (hereinafter called union) and to submit the subject grievance dispute to arbitration.
The city charter of the City of Mt. Clemens provided for a retirement program for certain classes of employees including the member firemen of the plaintiff union.
Both 1972 and 1973 collective bargaining agreements, between the city and union, grant members of the fire department a certain number of sick-leave days for each year of employment. Unused sick-leave days are permitted to accumulate for a maximum of 94 work days, in the case of those employed in fire fighting positions, and 150 days for those in fire-prevention positions.
The Mt. Clemens City Charter contains a provision dealing with an employees’ retirement system, which is applicable to members of the fire department, as well as other city employees. However, certain specific provisions are applicable only to fire fighting personnel, and not to other employees of the city.
Under the terms of the charter, pension payments made upon death or retirement are based upon the employee’s "final average compensation”. This is defined as the average of the highest annual compensation received by a member during a period of five consecutive years of credited service.
Since the inception of the pension system, the city pursued a policy and practice of including the sick-leave payment paid to the retiring employee in the computation of his pension, without limitation as to the time when the unused and accumulated sick leave actually was earned and accrued. The sick-leave payment, for computation purposes, was generally allocated to the last year of service, rather than to the year in which it was earned and accrued.
In August of 1972 the retirement board requested an opinion from its legal advisor as to whether payments for unused and unpaid sick leave are properly includable in the computation of the "final average compensation” for purposes of establishing pension benefits for retiring city employees. It also inquired as to the proper method of the allocation of such payments.
On August 1, 1972, the city attorney advised the board that compensation paid for accumulated and unused sick leave is in the naturé of "salary or wages” and a factor to be included in the computation of "final average compensation”. He advised, however, that the computation should include only that portion of the unpaid and accumulated sick leave which was actually accrued and earned in the last five years of employment. He regarded unused and accumulated sick leave, for computation purposes, as allocable only to the years in which it was earned and accrued.
The city attorney cautioned that his conclusion was not based upon any Supreme Court decisions or precedent and that, if the board followed the same, it could expect a great deal of litigation. He advised: "Further, the retirement system is a charter provision, and in order to clearly spell out this limitation, it would take a charter amendment.”
The board, notwithstanding the qualifications and the admonitions expressed in the city attorney’s opinion on May 22, 1973, adopted the subject resolution. It changed the method of computing final compensation for retirement purposes by excluding all payments with respect to sick leave which were earned and accumulated prior to the fifth year preceding retirement. Thereupon Clifford Fanning, a member of plaintiff union, and the union through its president and vice-president filed a grievance, which the city rejected. Thereaf ter the union requested the grievance be submitted to arbitration and the city again refused on the ground that it did not involve a "grievable” item, and refused to submit the claimed grievance to arbitration.
Thereafter a charge and amended charge were filed with the MERC under the public employment relations act, 423.201 et seq.; MSA 17.455(1) et seq. (hereinafter referred to as PERA). The union charged that the city committed unfair labor practices when it unilaterally changed a condition of employment and refused to submit the ensuing grievance to arbitration under the collective bargaining agreement.
The subject grievance is based on the violation of article XV of the collective bargaining agreement which in pertinent part reads as follows:
"Section 1. Maintenance of Conditions. Wages, hours, and conditions of employment in effect at the execution of this Agreement shall, except as improved herein, be maintained during the term of this Agreement. No employee shall suffer a reduction in benefits as a consequence of the execution of this Agreement.
'!Section 2. Unilateral Changes Prohibited. The city will make no unilateral changes in wages, hours, or working conditions or conditions of employment during the term of this Agreement, either contrary to the provisions of this Agreement or otherwise.”
In article XVIII, Grievance and Arbitration Procedure, it is provided in pertinent part:
"It is mutually agreed that all grievances, disputes or other complaints arising under and during the term of this Agreement shall be settled in accordance with the procedure hereinafter outlined. Every effort shall be made to adjust controversies and disagreements in an amicable manner between the employer and the union. In the event any grievance cannot be settled in this manner, the question may be submitted by either party for arbitration as hereinafter provided: * * *
"Step 3. In the event the grievance remains unresolved after completion of Step 2 of the grievance procedure, such grievance may be appealed to arbitration by either the union or the city. It is intended herein to prevent an appeal by an individual employee without the consent of the union. Notice of such appeal shall be given to the city manager, or his designated representative, within seven (7) days of the completion of Step 2. The parties hereto agree to select the arbitrator in the following manner;
"The party requesting arbitration shall promptly thereafter file a demand for arbitration with the American Arbitration Association in accordance with the then applicable rules and regulations of said American Arbitration Association, sending a copy of such demand to the opposite party; provided that the American Arbitration Association shall be advised that no employee of the State or Federal Government, or any subdivision thereof, other than educational institutions, may be used as an arbitrator under this Agreement.
"The arbitrator shall have the authority and jurisdiction to determine the interpretation and/or application of the collective bargaining agreement respecting the grievance in question, but he shall not have the power to alter or modify the terms of this Agreement.
"Said arbitration shall be conducted under the auspices of the American Arbitration Association, and the conduct of said hearing shall be controlled by the rules of the Association. The fees of the American Arbitration Association and the fees and expenses of the arbitrator shall be paid one-half (1/2) by the union and one-half (1/2) by the employer, and all other expenses shall be borne by the party incurring them.
"So long as said arbitrator does not exceed his authority as provided herein, his decision shall be final and binding on the union, and all members of the bargaining unit, and the employer. The union will discourage any attempt by its members and will not encourage or cooperate with any of its members, in any appeal to any court or labor board from the decision of the arbitrator.”
On April 4, 1974 MERC, pursuant to MCLA 423.2 et seq.; MSA 17.454(2) et seq., issued a decision finding that the city had committed unfair labor practices, both under the provisions of PERA, MCLA 423.210(e); MSA 17.455(10)(e), and the collective bargaining agreement. It ordered, among other things, that the city cease and desist from refusing to bargain with the union, that the grievance was arguably arbitrable, and ordered the city to submit the dispute to arbitration, in accordance with the terms of the collective bargaining agreement. The city has appealed from that decision and order.
The three issues raised by the respondent city are reworded herein and are dealt with in proper order.
I
Is the claimed grievance a labor dispute or a "grievable” item under statute and the terms of the collective bargaining agreement?
Section 10(e) of PERA, MCLA 423.210(e); MSA 17.455(10)(e), required the city to bargain collectively with the representatives of its public employees. The city refused to bargain with the union on the claimed grievance. ,On this subject we turn to the recent important case of Detroit Police Officers Association v City of Detroit, 391 Mich 44, 63; 214 NW2d 803, 813 (1974), wherein Mr. Justice Swainson, speaking for the Court, said: "We summarily find that MERC was correct in holding that changes in the police retirement plan are manda tory subjects of bargaining.” We do not visualize that under the facts in the present case the order of MERC in enforcing the provisions of PERA, will conflict with the provisions of the Mt. Clemens City Charter. However, should a conflict be present this problem is solved also by the case of Detroit Police Officers Association, supra, wherein on pp 67-68; 214 NW2d at 815, it is stated in part as follows:
"To summarize, the home rule cities act does not require that the substantive terms of pension plans be voter approved. In this important respect it does not conflict with PERA. The home rule cities act and PERA can be easily harmonized by reading the home rule cities act to empower a city to set up the procedures for its pension plan in the charter and to leave the substantive terms of the plan to collective negotiation. We therefore follow the most basic tenet of statutory construction and construe these two independent acts of the Legislature to be consistent with each other.”
The grievance was founded on the claimed violation by the city of its agreement contained in article XV, viz: "The city will make no unilateral changes in wages, hours, or working conditions or conditions of employment during the term of this agreement, either contrary to the provisions of this agreement or otherwise."(Emphasis supplied.) The rights of the members of the union under the pension and retirement plan of the city as it was administered at the time of the contract was a valuable part of the conditions of employment. This is recognized in our fundamental law as provided for in Const 1963, art 9, §24, which states in part: "The accrued financial benefits of each pension plan and retirement system of the state and its political subdivisions shall be a contractual obligation thereof which shall not be diminished or impaired thereby.” The benefits provided by the city for its employees pertaining to pension and retirement are contractual and therefore become vested rights. The formula used by the city for many years in determining benefits to be paid thereunder is claimed to have been changed by the city unilaterally at a time when the collective bargaining agreement was viable. The city in refusing to bargain with the union on the subject of changes in the retirement plan of the city as required under MCLA 423.210(e); MSA 17.455(10)(e), resulted in a bona fide labor dispute.
We are constrained to rule that the subject grievance is a "grievable” item.
II
Is the Michigan Employment Relations Commission the proper forum for determining whether the collective bargaining agreement between the city and the union requires arbitration to settle the dispute?
The city asserts that (1) there is no specific mention in the collective bargaining agreement of the pension and retirement plan, and it was not the intention of the parties to submit to arbitration the subject controversy; and (2) in the absence of a statute specifically making a breach of a collective bargaining agreement an unfair labor practice, the courts are the proper forum for determining whether or not a labor dispute is arbitrable.
The authority for the jurisdiction of MERC in this matter is based upon claimed violation of § 10 of PERA; MCLA 423.210(e); MSA 17.455(10)(e): "It shall be unlawful for a public employer or an officer or agent of a public employer * * * (e) to refuse to bargain collectively with the representatives of its public employees * * * .” The city refused to bargain on the issue and also refused to submit the same to arbitration when the union requested it. We have previously ruled that police pension and retirement plans are mandatory subjects of bargaining. We rule that the benefits to be paid under a pension and retirement plan as enjoyed by the firemen belonging to the plaintiff union herein, constituted a valuable condition of employment. A change in remuneration to plaintiff via a change in the retirement plan constitutes a change in conditions of employment, and we rule MERC had jurisdiction to consider the actions of defendant city as constituting an unfair labor practice under section 10 of PERA. The fact that the collective bargaining agreement did not specifically mention benefits to be paid under the pension and retirement plan of the city does not in the least eliminate such benefits from being included in the clause requiring the city to maintain the conditions of employment during the life of the agreement.
Defendant further claims that the courts are the appropriate forum to determine if a labor dispute is arbitrable. Our PERA was patterned after the National Labor Relations Act (hereinafter called NLRA), and we look to the interpretation of that law by the Federal courts as a guide in our construction of PERA. In Detroit Police Officers Association v City of Detroit, 391 Mich 44, 53; 214 NW2d 803, 807-808 (1974), it is stated:
"Section 15 of PERA undoubtedly was patterned after § 8(d) of the National Labor Relations Act (NLRA). Both statutes use almost identical language in describing the duty to bargain. The decision by the Michigan Legislature to adopt the language of § 8(d) of the NLRA is significant. Section 8(d) has been a part of the NLRA since the Taft-Hartley amendments of 1947. The terms of §8(d) have been litigated in numerous cases before the National Labor Relations Board (NLRB) and the Federal courts. Although we cannot state with certainty, it is probably safe to assume that the Michigan Legislature intentionally adopted § 15 PERA in the form that it did with the expectation that MERC and the Michigan courts would rely on the legal precedents developed under NLRA, §8(d) to the extent that they apply to public sector bargaining. Edwards, The Emerging Duty to Bargain in the Public Sector, 71 Mich L Rev 885, 895 (1973).” (Footnotes omitted.)
Section 8(d) NLRA, 61 Stat 142 (1947); 29 USC 158(d), deals with collective bargaining requirements in almost identical terms as those employed in § 15, PERA. The provisions have been litigated in numerous cases before the courts, and such cases are authority for the courts in Michigan to rely upon in determining the correct interpretation to be placed on our PERA. The case of Smith v Evening News Association, 371 US 195; 83 S Ct 267; 9 L Ed 2d 246 (1962), involved a labor dispute commenced by a complaint in the Wayne County Circuit Court of Michigan, and was dismissed upon a motion by the defendant. It was stated therein at 371 US at 197; 83 S Ct at 268-269; 9 L Ed 2d at 249:
"In [Teamsters, C W & H v] Lucas Flour Co, [369 US 95; 82 S Ct 571; 7 L Ed 2d 593 (1962)] as well as in Atkinson [v Sinclair Refining Co, 370 US 238; 82 S Ct 1318; 8 L Ed 2d 462 (1962)], the Court expressly refused to apply the preemption doctrine of the [San Diego Bldg Trades Council v] Garmon, [359 US 236; 79 S Ct 773; 3 L Ed 2d 775 (1959)] case; and we likewise reject that doctrine here where the alleged conduct of the employer, not only arguably, but concededly, is an unfair labor practice within the jurisdiction of the National Labor Relations Board. The authority of the Board to deal with an unfair labor practice which also violates a collective bargaining contract is not displaced by § 301, but it is not exclusive and does not destroy the jurisdiction of the courts in suits under § 301. If, as respondent strongly urges, there are situations in which serious problems will arise from both the courts and the Board having jurisdiction over acts which amount to an unfair labor practice, we shall face those cases when they arise.” (Footnotes omitted.) (Emphasis supplied.)
As to whether the arbitration clause in the instant collective bargaining agreement includes the subject grievance, we turn to the case of International Association of Machinists v Howmet Corp, 466 F2d 1249, 1251-1252 (CA 9, 1972):
"The Supreme Court has established a strong presumption in favor of arbitration as the preferred method of settlement of industrial disputes. When the standard form of arbitration clause is used in a collective bargaining agreement, as it was here, 'an order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage’. United Steelworkers of America v Warrior & Gulf Co, 363 US 574, 582-583; 80 S Ct 1347, 1353; 4 L Ed 2d 1409 (1960). See also United Steelworkers of America v American Mfg Co, 363 US 564; 80 S Ct 1343; 4 L Ed 2d 1403 (1960), and United Steelworkers of America v Enterprise Wheel & Car Co, 363 US 593; 80 S Ct 1358; 4 L Ed 2d 1424 (1960), (hereinafter referred to as the Steelworkers Trilogy).
"Although arbitration is a matter of mutual agreement between the parties, and they may choose to exclude certain areas of contention from the arbitration process, the standard set by the Court for finding a dispute non-arbitrable is a strict one: There must be either an 'express provision excluding a particular grievance from arbitration’ or 'the most forceful evidence of a purpose to exclude the claim from arbitration.’ Id., at 585; 80 S Ct at 1354. Here, there is no such 'express provision’. Whether or not a particular dispute is prima facie covered by the agreement’s arbitration procedure is a question for the court to decide, see John Wiley & Sons v Livingstone, 376 US 543, 546-547; 84 S Ct 909; 11 L Ed 2d 898 (1964), and Local Freight Drivers Local 208 v Braswell Motor Freight Lines, Inc, 422 F2d 109, 112 (CA 9, 1970). The issue is therefore a simple one: is there forceful evidence of a purpose to exclude these grievances from arbitration so that the heavy presumption in favor of arbitration is overcome? We hold that there is not.”
In the instant case there was no express provision in the contract excluding a change in the pension plan to arbitration, and there is no forceful evidence present herein of a purpose to exclude the subject claim from arbitration. We find further light on the subject in the case of National Labor Relations Board v Strong, 393 US 357; 89 S Ct 541; 21 L Ed 2d 546 (1969), wherein a labor contract was negotiated in behalf of an employer, who later refused to sign the contract and to put it into effect. Unfair labor charges were presented to the National Labor Relations Board (hereinafter called NLRB). The NLRB found that the employer violated §8(aX5), NLRA and ordered it to sign the contract. It also directed the employer to pay the fringe benefits, payable under the contract had the employer signed it.
The 9th Circuit Court of Appeals ordered the enforcement of the board’s order, except as it applied to the payment of fringe benefits. It regarded that portion of the order as a direction of the employer to carry out the provisions of the contract. This, the Court said, is beyond the power of the NLRB. The Supreme Court reversed this finding, stating in part at 393 US 364; 89 S Ct at 546; 21 L Ed 2d at 549-550:
'!Arbitrators and courts are still the principal sources of contract interpretation, but the Board may proscribe conduct which is an unfair labor practice even though it is also a breach of contract remediable as such by arbitration and in the courts. ” (Emphasis supplied.)
The employer in Strong urged that the NLRB, in ordering the payment of fringe benefits reserved in the contract, was thereby inserting itself into the enforcement of the collective bargaining agreement, contrary to the policy of the NLRA. The Court on this subject stated at 393 US 360-361; 89 S a at 544-545; 21 L Ed 2d 549-550, as follows:
"The challenge of the employer, in brief, is that ordering the payment of fringe benefits reserved in the contract inserts the Board into the enforcement of the collective bargaining agreement, contrary to the policy and scheme of the statute. Admittedly, the Board has no plenary authority to administer and enforce collective bargaining contracts. Those agreements are normally enforced as agreed upon by the parties, usually through grievance and arbitration procedures, and ultimately by the courts. But the business of the Board, among other things, is to adjudicate and remedy unfair labor practices. Its authority to do so is not ’affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise * * * ’ § 10(a), 61 Stat 146, 29 USC § 160(a). Hence, it has been made clear that in some circumstances the authority of the Board and the law of the contract are overlapping, concurrent regimes, neither preempting the other. NLRB v C & C Plywood Corp, 385 US 421; 87 S Ct 559; 17 L Ed 2d 486 (1967); Carey v Westinghouse Electric Corp, 375 US 261, 268; 84 S Ct 401; 11 L Ed 2d 320, 326 (1964); Smith v Evening News Assn, 371 US 195, 197-198; 83 S Ct 267; 9 L Ed 2d 246, 249-250 (1962); Teamsters Local 174 v Lucas Flour Co, 369 US 95, 101, n 9; 82 S Ct 571; 7 L Ed 2d 593, 597 (1962). Arbitrators and courts are still the principal sources of contract interpretation, but the Board may proscribe conduct which is an unfair labor practice even though it is also a breach of contract remediable as such by arbitration and in the courts. Smith v Evening News Assn, [supra]. It may also, if necessary to adjudicate an unfair labor practice, interpret and give effect to the terms of a collective bargaining contract. NLRB v C & C Plywood Corp, [supra]. ” (Footnotes omitted.)
In the instant case the city argues that MERC exceeded its authority and usurped a judicial function when it ordered the city to submit the dispute to arbitration. We rule that MERC acted within its statutory authority. It determined in reference to the contract that the grievance was by the terms thereof, arguably arbitrable.
It did not make or attempt to make a judicial determination with respect to whether the dispute was arbitrable. This matter under the ruling is left to the arbitrator to determine. We follow the Federal cases that rule that the NLRB, MERC, and the courts have concurrent jurisdiction to hear such labor disputes based on contract. We rule that the MERC was a proper forum to hear the dispute and did not exceed its authority in ordering the matter submitted to arbitration as provided for in the collective bargaining agreement.
Ill
Does the MERC have the authority to compel the city to submit to an arbitration proceeding which could result in an order requiring the city to violate its existing city charter?
We do not believe that such an arbitration proceeding in the instant case would result in requiring the city officials to violate the city charter. Such arbitration could result, at the most, in restoring the conditions existing at the time the contract was entered into. Those conditions had been in effect for more than 20 years in determining the pension and retirement benefits to pay the firemen members of the plaintiff union.
Arguendo, a city charter’s provisions for paying pension and retirement benefits to its employees cannot prevent the setting of such benefits through collective bargaining, between a city and its employees. Detroit Police Officers Association, supra.
Affirmed. Costs to plaintiff.
"On or about May 22, 1973, the City of Mt. Clemens acting through the Retirement Board of Trustees, unilaterally changed the method of computing employees’ 'Final Average Compensation’ for the firefighters retirement system. The Mt. Clemens Fire Fighters Union, Local 838, pursuant to Article XVUI of the collective bargaining agreement, hereby notifies the city that this unilateral change in terms and conditions of employment violates the collective bargaining agreement, inter alia, Article XV, Maintenance of Conditions.”
Inland Steel Co v NLRB, 77 NLRB 1; 21 LRRM 1310, enforced 170 F2d 247 (CA 7, 1948), cert den 336 US 960; 69 S Ct 887; 93 L Ed 1112 (1949). | [
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