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Bushnell, C. J.
This is an appeal by plaintiffs Louis Rose and Tilly Rose, his wife, and Ira A. Hotchkiss, from a decree dismissing the hill of complaint in which they sought specific performance of an agreement for the sale of lands. Defendant Estella M. Gilbert for some years owned property jointly with her husband, located at the corner of Joy road and Southfield road in the city of Detroit. This property consists of 8 lots, numbers 40 to 47, inclusive, each 20x100 feet, fronting on Joy road, and an irregularly shaped parcel having a total frontage of 267.41 feet on Southfield road, with a depth of 71 feet on the southerly 127.41 feet of the Southfield frontage, and a depth of 43 feet on the remainder.
Rose and his wife offered to purchase the entire premises. After considering this offer Mrs. Gilbert accepted it, and a written agreement of purchase was executed on April 4,1945. Plaintiffs paid $1,000 and agreed to pay $7,000 more upon execution of a land contract, the balance of $27,000 to be paid in monthly instalments of not less than $200 per month during the first year and $500 per month during the second and third years. The balance of the purchase price was to be paid on or before five years, but in any event in not less than three years. The preliminary agreement contains the following:
“Deal to be closed within 15 days from date abstract or title insurance certified to date is delivered to purchaser showing marketable title.”
Three abstracts of title, but not certified to date of their delivery, were given to Rose, who requested in lieu thereof a title policy. A title policy commitment was provided showing record title in William J. Gilbert, the deceased husband of Mrs. Gilbert. Subsequently a title insurance commitment was issued on May 12, 1945, showing fee simple title in Mrs. Gilbert, subject to plaintiffs’ right to purchase.
Bose had been negotiating with parties who owned and operated a number of theaters, with a view of leasing to them the building which he and his wife intended to erect on the property in question. During these negotiations it developed that the Wayne county road commission contemplated condemnation of a large portion of-the property.
On June 21st, Mrs. Gilbert’s attorney advised Bose and his wife, in writing, that more than 15 days had elapsed since the acceptance of the offer and the delivery of a title insurance commitment showing-marketable title. He asked that the land contracts which had been provided for examination be returned, adding:
“If you still wish to complete this transaction advise me at once and I will see what Mrs. Gilbert wishes to do.”
Plaintiff Hotchkiss, who is a real-estate broker, replied the next day, calling attention to the contemplated condemnation, and the fact that the Department of Building & Safety Engineering had refused to issue a building permit. Hotchkiss suggested that the Boses might be interested, however, in purchasing the portion left after condemnation. His letter concluded with the following statement:
“Please return the deposit of $1,000 and we will be glad to negotiate the purchase of the balance of the land if Mrs. Gilbert cares to sell it.”
Her attorney replied that, in his opinion, Mrs. Gilbert was entitled to retain the $1,000 deposit as liquidated damages for breach of the agreement, and he again requested that the land contract and abstracts be returned to him.
On August 2d, plaintiffs’ present counsel advised defendant’s counsel that there had been a failure of consideration, saying:
“Therefore, my clients are willing to enter into a new agreement for the purchase of the property which will not be condemned, or if your client is not willing to make such new agreement, then my clients desire to rescind the entire transaction and have returned to them the deposit of $1,000 paid to your client in connection with said transaction.
“For your information, I have in my possession the signed land contracts which you delivered to Mr. Hotchkiss, and also the abstracts involved herein,, which I will dispose of in any manner you indicate.”
However, on July 19, 1945, a quitclaim deed was recorded, executed by plaintiffs Rose to plaintiff Hotchkiss, covering the lands in question herein and conveying to him a one-half interest therein.
On September 13, 1945, Mrs. Gilbert executed and delivered to intervening defendant Standard Oil Company, of Indiana, a 30-day option to purchase the property in question for the sum of $40,000, which option was exercised by Standard, in writing, on October 12, 1945.
The condemnation proceedings mentioned resulted in a settlement or award in the sum of $15,000 for that portion of the property taken. It was stipulated on the record that this money should be paid to Mrs. Gilbert and “credited by her on the purchase price to whichever one of the parties might eventually be decreed to be entitled to purchase the property.” The trial judge held, “both as a matter of law and as an issue of fact, that the contract agreement between the parties was rescinded and abrogated,” and that the quitclaim deed and contract agreement attached thereto should be cancelled and discharged of record.
In the decree filed in this canse, it was determined, among other things, that defendant Gilbert had performed her obligations under the preliminary agreement, and that it had been breached by plaintiffs who were in default at all times subsequent to June 19, 1945, after which date they rescinded and abrogated the same. A letter from plaintiffs, under date of September 14, 1945, notifying defendant that they were now ‘ ‘ ready, willing and able to complete said transaction as set forth in the preliminary agreement executed between the parties, and you are requested to take the necessary steps to effectuate this purpose,” was treated, as an attempt to revive the transaction subsequent to a claimed increase in real estate values following the termination of the war with Japan on August 14, 1945.
Although time was not specifically stated to be of the essence of the contract, plaintiffs’ delay in concluding the transaction is one of the determining factors in this cause. While plaintiffs ’ default does not of necessity bar the relief they seek, nevertheless specific performance is not a remedy of right but rests in the sound discretion of the court. Reo Motor Car Co. v. Young, 209 Mich. 578; Krause v. Hoffman, 239 Mich. 348; St. Pierre v. Masson, 243 Mich. 60. See, also,. Tiley v. Chapman, 320 Mich. 173.
A de novo review of the testimony requires the conclusion that in this instance sound discretion could only be exercised by the denial of specific performance. The sudden and marked increase claimed as to the value of the land after which plaintiffs sought to enforce specific performance, would make such relief unjust and inequitable under the “peculiar circumstances” of this case, and would of itself be sufficient ground for denying specific performance. Smith v. Lawrence, 15 Mich. 499; Marvin v. Solventol Chemical Products, Inc., 298 Mich. 296; and Mahon v. Sahration, 310 Mich. 563.
Furthermore, the record conclusively 'shows that plaintiffs abandoned, “rescinded and abrogated’' their agreement to purchase.
The decree dismissing plaintiffs ’ bill of complaint is affirmed, with costs to appellees.
Sharpe, Boyles, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Carr, J.
This is a suit for specific performance of. an alleged agreement in writing to enter into a land contract for the sale of certain real estate in the city of Detroit. Defendants, who were the owners of the- property, listed it with a broker who procured from plaintiffs an offer to purchase. Said offer, which was prepared on a printed form, specified the sum of $17,500 as the total consideration, with a down payment of $6,000 in cash, and the execution of a land contract providing for payments of the balance at the rate of $115 per month. Each monthly payment was to include taxes, and interest at the rate of five per cent, per annum. It was further specified that the purchasers should become entitled to possession of the property at the time of closing the transaction, and that said property should be vacated by its owners, who occupied it, on or before July 1, 1946. These provisions were subject to the further specification in the offer that defendants might continue to occupy the premises, without payment of rent, until the date stated.
Plaintiffs’ offer was delivered by them to the broker who in turn submitted it to defendants. An acceptance of the offer, printed on the form used, was signed by defendants, the following clause being added at the time by the broker immediately below the lines provided for the signatures of the sellers:
“In tbe event seller occupies bouse after July 1, 1946, it is understood and agreed that be is to pay $100 per month rent.”
It appears from tbe record that this addition to tbe acceptance was inserted following a conversation between tbe broker and Mr. Wyekoff in wbicb tbe latter stated, in substance, that it might not be possible for defendants to vacate prior to September 1, 1946. Tbe form used was then returned to plaintiffs, and Mr. Spaulding, under date of March 30, 1946, signed thereon a printed form of acknowledgment of receipt of tbe acceptance. A land contract was prepared in accordance with tbe offer, wbicb defendants refused to execute, claiming that tbe quoted clause added to tbe acceptance modified it in such manner as to make it, in effect, a counter-offer, that such counter-offer was not accepted by plaintiffs, and that in consequence no valid agreement for tbe execution of a land contract bad been made. In accordance with their position defendants notified plaintiffs that tbe counter-offer was withdrawn.
Upon defendants ’ refusal to complete tbe transaction by tbe execution of tbe proposed land contract, plaintiffs instituted tbe present suit. Following trial in tbe circuit court a decree was entered in accordance with tbe prayer of tbe bill of complaint requiring defendants to enter into a land contract for tbe purchase of tbe property in accordance with tbe terms of plaintiffs’ offer, such contract to provide for immediate possession and occupancy by plaintiffs. Provision was further made for tbe adjustment of taxes, water bills, and insurance as of the date of tbe contract. From such decree defendants have appealed, claiming that tbe circuit judge was in error in bolding that tbe addition of tbe so- called postscript to the acceptance of plaintiff’s offer did not constitute it a counter-offer, rather than an acceptance. Plaintiffs insist that the inserted clause pertained to a matter collateral to the main agreement, that it contemplated a possible landlord and tenant relationship, and was wholly independent of the alleged contract for the purchase of the property. These contentions present the issue for determination by this Court on the appeal.
The general principles governing the granting of specific performance in cases of this character have been repeatedly discussed and applied by this Court in prior decisions. Thus, in Gates v. Gamble, 53 Mich. 181, it was said:
“Until, therefore, the parties have agreed between themselves on this subject, their contract is imperfect, and it is impossible to give it effect.. The courtsv cannot perfect for the parties the contracts which they have left imperfect. The contract in this -ease was evidently provisional, and contemplated a further contract, in which we may suppose the details of the proposed arrangement would be definitely fixed upon and settled; but, if either party refuses to enter into such further contract, there is no way of compelling it. Neither is there any way of enforcing the provisional contract, when it appears that the parties have failed to agree upon essential terms. ’ ’
In Lippman v. Featherston, 247 Mich. 153, it was said:
“Greater certainty is required in an action of specific performance than an action at law. 36 Cyc. p. 589. The terms of the contract must not be so ambiguous that either party may reasonably misunderstand them. 36 Cyc. p. 590.”
And in the recent case of Steketee v. Steketee, 317 Mich. 100, it was further declared:
'“In order that courts may specifically enforce an oral agreement to convey property, plaintiff must establish by clear, satisfactory and convincing proof the terms of such agreement. ’ ’
See, also, Blanchard v. Detroit, L. & L. M. R. Co., 31 Mich. 43 (18 Am. Rep. 142); Palmer v. Pokorny, 217 Mich. 284; Czeizler v. Radke, 309 Mich. 349.
In order to be entitled to the relief sought the burden rested on plaintiffs to establish by clear and satisfactory proof a definite contract on the essential terms and conditions of which the minds of the parties met, and of such character as to be capable of specific enforcement by a court of equity. Obviously, if the so-called postscript to the acceptance of the offer amounted to a refusal to accept, unconditionally, any material part of said offer, or if, as defendants claim, it amounted merely to a counter-offer, the conclusion follows that specific performance may not properly be decreed. In the determination of the question the precise terms of the offer are of vital importance. An analysis of its provisions indicates that plaintiffs desired, first, to enter into a land contract for the purchase of the property in question, the terms of such contract being specified, and, second, to have the right to the occupancy and possession of the property under the contract and from the time of its execution or, in any event, not later than July 1, 1946. Acceptance of the offer as made would have imposed on defendants the obligation to vacate the premises on or before said date. Under the terms of the offer possession was a material part of the subject-matter of the contract into which the plaintiffs wished to enter. A contract providing merely for the sale of the property to them, on specified terms, without giving them, either expressly or by necessary implication, the right of possession, would not have been in accordance with the offer. Paragraph 17 of the hill of complaint clearly indicates plaintiffs ’ position in this regard. It reads as follows:
‘ ‘ That it is imperative that the said plaintiffs have possession and occupancy of the said property on or before July 1, 1946, according to the express terms of said agreement, or the plaintiffs will' suffer irreparable loss and damages.”
It is definitely settled, under prior decisions of this Court, that the right of a vendee under a land contract to possession of the property agreed to be purchased and sold rests entirely on the contract. In Polczynski v. Nowicki, 227 Mich. 415, 429, it was said:
“It is a well-settled rule that if not otherwise provided in the agreement the right to possession of a contract purchaser does not become operative until full payment of the purchase price. ’ ’
In Emmons v. State Land Office Board, 305 Mich. 406, 410, the statement was made that:
‘‘ The general rule is that unless the contract provides for possession, the right of a contract purchaser to possession does not become operative until full payment of the purchase price.”
See, also, Gault v. Stormont, 51 Mich. 636; Way v. Root, 174 Mich. 418; Brin v. Michalski, 188 Mich. 400; Barton v. Molin, 219 Mich. 347.
Bearing in mind that plaintiffs’ offer contemplated not only the purchase of the property under land contract, but also the right to the possession and occupancy thereof from .and after July 1, 1946, the conclusion may not. be avoided that the inserted clause in the acceptance had reference to the subject-matter of the proposed agreement. Though written below the space provided for the signatures of the sellers it must be given force and effect. Wait v. Pomeroy, 20 Mich. 425 (4 Am. Rep. 395); Hake v. Groff, 232 Mich. 233; Johnston Bros., Inc., v. Village of Coopersville, 261 Mich. 26.
It is a fair inference from the language used in the provision in question that defendants were unwilling to accept unconditionally the offer of plaintiffs insofar as the delivery of possession on or before July 1, 1946, was concerned. The testimony of Mr. Wyckoff clearly indicates that such was the fact. It was his claim that at the time plaintiffs ’ offer was submitted to him by the broker he informed the latter that defendants would not be interested in any deal unless they could remain in possession until September first. - After some discussion the broker added the clause in question, explaining according. to Mr. Wyckoff’s testimony, that it would protect defendants in their occupancy of the premises until October first, if they wished to remain,. for the reason that it would not be possible for plaintiffs to obtain possession until the later date. His statements, if made as claimed by defendant Wyckoff, indicate that the broker had in mind that the clause as written entitled defendants to remain in possession after July 1, 1946, as tenants from month to month. Defendant testified that he considered this a counter-offer and that he so stated, to the broker. The latter was a witness for plaintiffs, admitted that there. was some conversation between himself and.defendant Wyckoff, and stated that he called it to the attention of defendant that the offer made by plaintiffs was for occupancy of the property on July 1st. It is a fair inference from the testimony of the broker that he inserted the clause as a result of his conversation with defendant, telling defendant at the time that pláintiffs would be reasonable with reference to the date of occupancy. The testimony of plaintiff Boy C. Spaulding indicates that the clause in question was not explained to him by the broker in the same manner in which it had been explained to defendant "Wyckoff. Apparently Mr. Spaulding was somewhat in doubt as to the interpretation of the clause and asked the broker what it meant. A discussion followed, the details of which do not appear in the record. It is a fair inference, however, from the testimony that plaintiffs understood defendants desired the right to remain after July 1st, that plaintiffs considered the granting of such right was entirely discretionary with them, and that they were unwilling to enter into a contract except on the basis of their offer. The land contract, subsequently prepared, specified the right of possession on July 1, 1946, thus indicating clearly the position taken by plaintiffs.
The record justifies the conclusion that the defendants did not interpret the clause, inserted by the broker in the acceptance, in the same manner as did the plaintiffs. Defendants evidently believed that, under said clause, if a land contract were executed between the parties it would protect defendants by giving them the right to remain in possession as tenants from month to month, if they so desired, after July 1, 1946. Plaintiffs took the position then, as they do now, that they were entitled to consider that their offer, as originally made, had been unconditionally accepted and that it was defendants’ duty, in consequence, to enter into a contract providing for surrender of possession of the premises on July 1, 1946. However, we think that the language of the inserted provision was such as to fairly apprise plaintiffs that defendants were demanding a right with reference to possession that was not contemplated by the offer and that in con sequence the offer as made was not accepted without qualification or condition.
Under the authorities above cited, if the minds of the parties did not meet on a material part of the alleged agreement, specific performance may not properly be decreed. That possession of the property was a material element of the subject-matter is scarcely open to question. On the record before us we conclude that defendants intended to make, and actually did make, a counter-offer with reference to this part of the proposed agreement. Admittedly, the counter-offer was not accepted. On the basis of the facts before us, and the legal principles applicable thereto, the relief sought must be denied. A decree will enter in this Court reversing the decree of the trial court and dismissing the bill of complaint, with costs of both courts to defendants.
Bushnell, C. J., and Sharpe, Boyles, Beid, North, Dethmers, and Butzel, JJ., concurred. | [
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Carr, J.
Plaintiff brought suit in circuit court to recover damages for injuries sustained by him in a traffic accident occurring about 6:30 in the evening of February 11, 1946, on a highway referred to in the record as “old U. S. 12,” approximately two miles east of the city of Jackson. Immediately prior to the accident plaintiff was driving in an easterly direction on said highway, his intended destination being the Disabled American Veterans Club, located on the north side of the road. For purposes of convenience and brevity said place is hereinafter referred to as the club. A car driven by one Gordon Barcalow was a short distance behind plaintiff. At the place in question the highway was approximately 16 feet in width and was paved with black-top. No claim is made that the condition of the surface of the pavement was a contributing factor to the accident.
On each side of the club there was a driveway, the one on the east having two entrances from the road forming a Y in which was located a telephone pole. Plaintiff intended to enter the west entrance of the east driveway. While endeavoring to do so his car was struck by an automobile driven by defendant Dent and owned by defendant Klotz. The answer concedes. that said automobile was being driven with the knowledge and consent of the owner.
On the trial before a jury it was the claim of the plaintiff that defendant Dent was guilty of negligence in failing to keep a reasonable and proper outlook for the safety of others on the highway, and in failing to operate his automobile in such manner as to be able to stop the same within the assured clear distance ahead. Defendants denied negligence on the part of Dent and insisted that plaintiff’s failure to exercise due and proper care for his own safety was the proximate cause of the accident. Defendants’ motion for a directed verdict, made at the conclusion of plaintiff’s case and renewed following the introduction of defendants’ proofs, was taken under advisement by the court under the provisions of the Empson act. The case was then submitted to the jury, by which a verdict in the sum of $7,000 was returned. Defendants’ motion for judgment notwithstanding the verdict was denied. Their motion for a new trial was also denied, on condition, however, that plaintiff consent to a remittitur in the sum of $2,000. This was done and judgment was entered for the plaintiff in the sum of $5,000. Defendants have appealed.
On behalf of defendants it is contended that the trial court erred in denying the motion for judgment notwithstanding the verdict. In order to recover damages the burden of proof rested on the plaintiff to establish that defendant Dent was guilty of negligence constituting the proximate cause of the accident and that he was himself free from contributory negligence. It was the duty of the trial court, in passing- on the issues presented by the motion, to construe the evidence in the light most favorable to the plaintiff. Gayden v. Arabais, 292 Mich. 651; Butzin v. Bonk, 303 Mich. 522; Anderson v. Kearly, 312 Mich. 566.
The witnesses are not in agreement as to how the accident occurred. Plaintiff, testifying in his own behalf, stated that he approached his destination at a speed of approximately 25 miles per hour; that he was aware that another automobile was following him at a distance of approximately 150 feet; and that west of the west driveway to the club he stepped on the brake three or four times in succession for the purpose of indicating by his rear light his intention to turn, thereby reducing his speed to approximately 12 miles per hour. Plaintiff’s testimony in this regard is corroborated by that of his witness Barcalow. Whether Barcalow also reduced his speed is not altogether clear. Plaintiff further testified that at a distance of approximately 70 feet from the west entrance to the east driveway he started to turn to his left, and that as he did so he looked over his left shoulder through the side windows of his car for the purpose of observing any traffic that might be approaching from the west on the north side of the road. It was his claim that he could see west for a distance of approximately 300 feet, that he noted the Barcalow car approximately 125 feet behind him, and that he did not see the defendants’ automobile. He further claimed that prior to turning he made observations of the highway behind him by means of his rear-view mirror, and that having looked to the west after commencing his turn across the north half of the highway, he looked also to the east for the purpose of observing any traffic that might be approaching from that direction. He’ testified to such a vehicle. claiming that it was approximately four blocks away at the time of his observation. Plaintiff stated that he did not see defendants’ ear prior to the impact. On cross-examination he further testified that after he started to turn he proceeded a distance of approximately 12 to 20 feet before he was struck. In view of the point where the impact actually occurred, such testimony is inconsistent with plaintiff’s claim on direct examination that-he began to turn 70 feet west of the west entrance of the east driveway.
Gordon Barcalow, testifying in plaintiff’s behalf, stated that the impact occurred after plaintiff’s car, with the exception of the rear bumper, had practically cleared' the pavement on the north side of the road. In the main he corroborated the claims of the plaintiff as to the manner in which the latter was driving. He observed the signal given by plaintiff by means of the rear light, and the turning of plaintiff’s car toward the north. He claimed that he made observations for the purpose of determining whether there was any automobile behind him and that he saw none. According to his testimony he did not see the car driven by defendant Dent until it was passing him. Concerning this matter he said:
“A car passed me. And at that time Mr. Alley’s car was practically off the pavement and this other car hit him.’*
Whether the witness meant to say that plaintiff’s car was actually leaving the pavement at the time defendants’ automobile was passing is not clear, especially in view of his further testimony as follows:
“I looked in the back mirror when the car in front of me gave his signal. I looked in the back mirror to see if I could see a car. There was no car back there. But, just as he started turning, this car got aside of me, and I noticed Mm pass me, and that is all.”
The .testimony of defendant Dent is not in accord with that of plaintiff or of Barcalow. It was his claim in substance that he did not see plaintiff’s automobile until he turned out upon the north side of the highway in order to pass the Barcalow car; that he did not see any signal indicating that plaintiff intended to turn to the left; that he was some 30 feet past the Barcalow car before noting that plaintiff was actually turning; that he immediately applied his brakes, locking the wheels of his car; and that he was unable to stop or otherwise avoid the impact. He further claimed, in substance, that he was exercising due and proper care in the operation of his car.
An apparently disinterested witness testified that skid marks on the road, following the accident, were left by all four wheels of defendants’ car, and that they extended approximately 25 feet in an easterly direction to the point of impact. This testimony and other proofs introduced in plaintiff’s behalf indicated that defendant Dent was nearer to plaintiff’s automobile at the time he applied his brakes and locked his wheels than his own testimony suggested. As a result of the impact, plaintiff’s automobile was thrown on its right side against the telephone pole in the Y, while defendants’ car proceeded on, leaving the highway and making a U turn in an adjacent field. It is apparent that, notwithstanding the application of the brakes, defendants’ car struck plaintiff’s automobile with great force.
Under the conflicting testimony the question of defendant Dent’s negligence was for the jury. Bearing in mind that for the purpose of determining the issues here the evidence must be interpreted as strongly as possible- in plaintiff’s favor, it cannot be said that tbe proofs were not sufficient to establish a prima facie showing of a failure by said defendant to keep a reasonable and proper outlook for the safety of others on the highway, and also a failure on his part to drive in such a manner that he could stop within the assured clear distance ahead. Pavela v. Tryloff, 251 Mich. 110; Pearce v. Rodell, 283 Mich. 19; White v. Vandevelde, 284 Mich. 669.
This brings us to a consideration of the question whether, as a matter of law, plaintiff’s proofs failed to show that he was free from contributory negligence. It was unquestionably plaintiff’s duty to keep a proper outlook for his own safety, and especially to make reasonable observations, before undertaking to turn into the entrance to the club premises, for the purpose of determining that the movement could be made in safety. It was his duty, also, to give a timely signal of his intention by means of the mechanical operation of his rear light or by extending his arm from the left side of his car. It was his duty in other words to comply with the statutory requirements in this regard, as stated by the trial court in his charge to the jury. If, as a matter of law, he was guilty of negligence that contributed to the accident, the motion for a judgment notwithstanding the verdict should have been granted. On the other hand if he was not guilty of contributory negligence as a matter of law it was for the jury to weigh the testimony, to determine therefrom the actual facts, and to draw proper-and legitimate inferences from those facts. Commenting on a somewhat comparable situation, the Court said in Anderson v. Kearly, supra (p. 570):
“Having in mind that upon a motion -to direct a verdict against plaintiff, the testimony and all legitimate inferences which may be drawn from it most favorable to plaintiff must be accepted, we are of the opinion that plaintiff established a prima facie case.”
It was for the jury, also, to weigh conflicting statements made by any witness, and determine which statements, if either, were correct. In Goonen v. Railroad Co., 218 Mich. 502, it was said:
“Upon a motion to direct a verdict for defendant, the evidence must be viewed in the light most favorable to plaintiff and when so viewed the portion of his testimony sustaining the theory of subsequent negligence made an issue of fact for the jury. It was for the jury to say what effect shall be given to his testimony as a whole.”
And in Neesley v. Lord, 297 Mich. 163, it was said:
“We have repeatedly held that if the testimony of a witness on direct examination conflicts with that on cross-examination, it is for the jury to decide when, if at all, he testified truthfully, provided that the subsequent testimony is not given for the purpose of correcting or explaining the former testimony. Parnell v. Pungs, 190 Mich. 638; Union Trust Co. v. Railway Co., 239 Mich. 97 (66 A. L. R. 1515). This is particularly true upon a motion to direct a verdict for defendant, and we have held that the evidence must be viewed in the light most favorable to plaintiff, and when so viewed, if portions of the testimony sustain the theory of plaintiff, it becomes an issue of fact for the jury. Their duty is to determine what weight is to be given to the testimony as a whole. The question as -to which version was the correct one is a question for the jury and not for the court. Abbott v. Travelers Insurance Co., 208 Mich. 654. See, also, Tuttle v. Railway Co., 193 Mich. 390; Darish v. Scott, 212 Mich. 139; Goonen v. Railroad Co., 218 Mich. 502; Jordan v. Burghardt, 227 Mich. 301; Kuitula v. Abbott, 229 Mich. 84; Soberg v. Sanders, 243 Mich. 429; Evans v. City of Detroit, 255 Mich. 381.”
The mere fact that a party seeking to recover damages from another was gnilty of negligence does not bar recovery, if it is determined that such negligence did not contribute to the accident and injury. The general rule is stated in 1 Cooley on Torts (3d Ed.), page 269, as follows:
“The principle is that to deprive a party of redress because of his own illegal conduct, the illegality must have contributed to the injury. ’ ’
So in the instant case if the plaintiff was. guilty of negligence in failing to make further observations while he was crossing the north half of the road, but if such omission did not contribute to the accident, it would not amount to such contributory negligence as bars recovery in a case of this character. Likewise the omission to give a signal that defendant Dent could not have seen, if there was a negligent omission in this regard, would not preclude recovery. Arvo v. Delta Hardware Co., 231 Mich. 488; Reid v. Coon, 243 Mich. 37; Transcontinental Insurance Co. v. Daniels, 266 Mich. 562; Fitzcharles v. Mayer, 284 Mich. 122 (3 N. C. C. A. [N. S.] 565); Waling v. City of Detroit, 308 Mich. 163.
Under the testimony in this case the trial court was not in error in submitting the issues of negligence and contributory. negligence to the jury. Tuttle v. Railway Co., 193 Mich. 390; Gibbons v. Delta Contracting Co., 301 Mich. 638; McGrath v. Hargraves, 310 Mich. 510. There was substantial evidence to support the finding of the jury, and in consequence it should not be disturbed on the ground that it was against the great weight of the evidence. Major v. Southwestern Motor Sales, Inc., 314 Mich. 122; Werker v. McGrain, 315 Mich. 287. In the last cited case, it was said:
“If there is substantial evidence tending to support the verdict it should not be set aside even though this Court might be in doubt as to the ultimate facts. Pulford v. Mouw, 279 Mich. 376. The conflicting testimony, together with the physical facts and circumstances, clearly presented a question of fact for the jury’s determination. The record has been examined and we find there is substantial evidence tending to support the verdict.”
The language quoted may well be applied to the situation presented in the case at bar. In view of the conflicting testimony the issues were clearly for the jury to decide. Defendants’ motion for judgment notwithstanding the verdict was properly denied. The trial court was also correct in declining to set aside the verdict on the ground that it was contrary to the great weight of the evidence.
Defendants further claim that certain errors, of sufficient gravity to require reversal, occurred in the trial of the case. On his direct examination, plaintiff, after testifying to the observations that he claimed to have made, was asked if he then concluded whether or not he “could cross or drive into the grounds in safety.” Over the objection of defendants’ counsel that the question called for a conclusion, the following answer was taken:
“My judgment was that I had a clear road.” It appears from the record that the purpose of the testimony was to establish affirmatively that plaintiff had complied with the pertinent provision of 1 Comp. Laws 1929, §4711 (Stat. Ann. § 9.1579), paragraph .(a), as follows:
‘ ‘ The driver of any vehicle upon a highway before starting, stopping or turning from a direct line shall first see that such movement can be made in safety.”
It further appears that the trial court admitted the answer to the question solely for its bearing on plaintiff’s compliance with the statutory requirement, advising the jury at the time that it was received for that purpose only. The court further stated to the jury:
“In the long run, after the facts in the case are submitted to you, it is for you to determine whether, in the light of all the facts and circumstances here, this man’s opinion as to whether he could cross the road at that point and turn was properly made; such as a reasonably prudent person would make under the circumstances.”
As stated, "the question and answer that defendants claim were objectionable followed plaintiff’s testimony as to his observations of the highway to the west. Under the statements to them by the court, made in connection with the arguments of. counsel o.n both sides, the jury must have understood the purpose of the testimony. No inference other than that plaintiff thought he could turn in safety, could have been drawn from his statements as to his observations and his operation of his car. On the record before us the admission of the testimony in question was not error. In Schneider v. C. H. Little Co., 200 Mich. 361, plaintiff, suing to recover damages for personal injuries, was asked on direct examination the following question, and gave the answer indicated:
“Q. I will ask you whether or not the fact, after putting 100 to 110 bags of plaster in the bay window, would it at the time, or did it at the time, spell to your mind any thought of there being any danger?
“A. No, sir.”
The testimony was admitted over the objections of defendant’s counsel, and a motion to strike was denied. In discussing the alleged error this Court said (p. 375):
“The court also refused to strike from the testimony the answer of the plaintiff, that the presence of the plaster did not cause him any thought of danger. This was a fact and not a conclusion. It was a step bearing upon the question of the contributory negligence of the plaintiff, for if th'ere was danger which he fully appreciated, he might have been guilty of contributory negligence. It was therefore a fact which it was competent for him to testify to, which, it is true, might not have been controlling of the whole question; but the jury were instructed to consider what an ordinarily prudent man would have done under the whole circumstances.”
Complaint is also made of alleged errors in the court’s charge to the jury. In discussing the duties resting on the plaintiff and on defendant Dent, the trial judge read several statutory provisions relating to the operation of motor vehicles on public highways within this State, indicating to the jury that such provisions were applicable to the facts in the case. Following such reading the jury was charged in .substance that a violation of a statute need not be considered unless it was a contributing cause to the accident. In putting before the jury the duties resting upon the two drivers, it was obviously the purpose of the trial court to cover all practical aspects of the situation. Included in the provisions read were requirements as to brakes and the operation of motor vehicles with reference to stopping and to acceleration. Doubtless such provisions might well have been omitted. Herzberg v. Knight, 289 Mich. 29. Certainly the evidence in the case did not require calling them specifically to the attention of the jury. On the record before us, however, and considering the charge in its entirety, we do not think the jury was misled to the prejudice of the defendants.
Defendants also call attention to the charge of the court with reference to the duties of the driver of an automobile overtaking and passing another vehicle proceeding in the same direction. With reference to this matter, the court read from 1 Comp. Laws 1929, §4707 (Stat.Ann. § 9.1575), as follows:
“(a) The driver of a vehicle shall not drive to the left side of the center line of a highway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in safety. ”
It is the claim of the defendants that the trial court erred in calling to the attention of the jury the duty of defendant Dent when undertaking to pass the cars of Barcalow and the plaintiff. Clearly it was said defendant’s duty to make proper observations and keep a reasonable outlook for other traffic. The provision quoted from the statute declared that duty with reference to the observation of the portion of the highway that he necessarily would have to traverse in executing the contemplated movement. Thompson v. Southern Michigan Transportation Co., 261 Mich. 440. It is apparently defendants’ theory that there was no evidence tending to indicate any breach of such duty. This however was a matter for the determination of the jury. If plaintiff’s automobile had in part crossed the center line of the road at the time defendant Dent undertook to pass the Barcalow car, the observance of the duty’ imposed by the statute would have led to his discovery of that fact. Calling the attention of the jury to his duty in the premises was not error.
Defendants further complain because the declaration, while alleging the duties resting on defendant Dent substantially in the language of the statute regulating the operation of motor vehicles on public highways within this State, did not specifically refer to pertinent sections by number. In view of the issues raised by the pleadings and the theories on which the case was tried.it is apparent that defendants were not prejudiced by the omission. Furthermore, the question is not covered specifically by the assignments of error; nor was it raised in the trial court by the motion for a new trial. It does not, therefore, require consideration here. Court Rule No. 66, § 3 (1945); Hewett Grocery Co. v. Biddle Purchasing Co., 289 Mich. 225; In re Wood’s Estate, 299 Mich. 635.
Error is also assigned on the refusal of the trial court to give defendants’ requests to charge in the form in which they were presented, and, also, on the giving of requests submitted by counsel for the plaintiff. Many of defendants’ proffered requests were included in the charge as given, either in the form requested or in substantially equivalent language. Others were open to the objection that they 'were argumentative or assumed facts as proved that were in dispute. The charge fully covered the issues in the case, and defendants were not prejudiced because certain of their requests were refused. Neither.do we find that any of plaintiff’s requests, given by the court, were improperly included in the charge. Complaint is made because the court gave part of-plaintiff’s fourth request, with reference to the duty, of defendant Dent to exercise care and caution after he observed, or should have observed, plaintiff’s automobile turning" to the left. Such charge however did not, as claimed, make defendants. insurers of plaintiff’s safety. It is not comparable to the charge found objectionable in Nickels v. Hallen, 247 Mich. 291, on which defendants rely. Other requests submitted by counsel for plaintiff, and in eluded in the charge, do not require specific discussion.
In submitting to the jury the question of damages, the trial court omitted to state the rule for^ reducing to present worth an award covering future damages. It should be noted in this connection that no request to charge the rule was submitted by defendants. Such omission was discussed by the trial judge in his opinion on the motion for a new trial. As before noted, the denial of the motion was premised on plaintiff filing a remittitur in the sum of $2,000. Plaintiff did so and judgment was entered accordingly for the reduced amount. This action remedied any possible prejudice suffered by defendants because of the omission. At the time of the trial plaintiff was. 59 years of age. The court-may take judicial notice of the mortality table set forth in the schedule to 3 Comp. Laws 1929, § 12398, as amended by Act No. 81, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 12398, Stat. Ann. §24.221). Denman v. Johnston 85 Mich. 387; Tandy v. Knox, 313 Mich. 147. From said table it appears that at the time of the trial plaintiff had a life expectancy of 14.74 years. The record contains no evidence tending to show a different expectancy. Undisputed testimony indicated that plaintiff’s hospital, medical and nursing expenses resulting. from the accident exceeded the sum of $500. Presumably the jury included in its verdict compensation for damages sustained prior to the trial. If, however, the full amount of the verdict were regarded as compensation for future damages only, the amount of the remittitur was not less than the amount deductible from such future damages to reduce them to present worth on the basis of plaintiff’s expectancy of life as indicated by the mortality table, applying the statutory interest rate of 5 per cent, per annum. Defendants were not prejudiced by tbe failure to state in the charge the proper method for reducing an award for future damages to present value.
Except as above pointed out, the charge of the court with reference to the matter of damages correctly covered the subject and was fully justified by the proofs. The claim of the defendants that there was no evidence as to future pain and suffering is not supported by the record. On the trial plaintiff testified as to his physical suffering and disabilities at that time. The testimony of his physician indicated a shoulder injury of a permanent character and such as to cause limitation or disability in the moyement. of his left arm and shoulder. Another physician who treated plaintiff also testified that the sight of his right eye had been destroyed and that such condition was permanent.- The question of recovery for future damages was properly submitted to the jury.
It is also alleged that the amount of the judgment as reduced by the remittitur is excessive. The testimony in the ease indicates that plaintiff’s injuries were painful and serious. No claim is made that the expenses for hospital, medical and nursing services were not reasonably incurred. Plaintiff did not return to work until approximately four months after the accident. As above noted, he sustained a permanent injury to his shoulder, was suffering pain at the time of the trial, and had lost the sight of an eye. While he testified that he was able to distinguish a light if. close to him, his witness, an eye' specialist, stated that the loss of sight wap permanent. In view of the character of plaintiff’s injuries it cannot be said that the verdict of the jury, as reduced by the remittitur, was excessive. In Cleven v. Griffin, 298 Mich. 139, it was said:
“There is no absolute standard by which we can measure the amount of damages in personal injury cases. The amount allowed for pain and suffering must rest in the sound judgment of the triers of the facts. Watrous v. Conor, 266 Mich. 397; Weil v. Longyear, 263 Mich. 22. Courts are reluctant to disturb verdicts of juries for personal injuries on the ground that the amount is excessive. Cawood v. Earl Paige S Co., 239 Mich. 485. We do not usually substitute our judgment for that of the jury unless the verdict shocks the conscience or has been secured by improper means, prejudice or sympathy.”
The language quoted is applicable to the case at bar. There is substantial evidence in the record to support the judgment, and the Court may not properly set it aside as excessive.
Other questions raised by counsel in their brief have been considered, but are not of such character as to require further discussion. In a general way at least they are covered by what is said above with reference to the principal issues in the case. The judgment is affirmed, with .costs to plaintiff.
Bttshnell, C. J., and Sharpe, Boyles, Reid, North, Dethmers, and Btjtzel, JJ., concurred.
See 1 Comp. Laws 1929, § 4697, as amended by Act No. 318, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 4697, Stat. Ann. 1946 Cum. Supp. § 9.1565).—Reporter.
Act No. 217, Pub. Acts 1915 (3 Comp. Laws 1929, § 14531 et seq. [Stat. Ann. § 27.1461 et seq.]), as amended by Act No. 44, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 14531 et seq. ‘[Stat. Ann. 1947 Cum. Supp. § 27.1461 et seq.]).
Amended by Act No. 318, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 4707, Stat. Ann. 1947 Cum. Supp. § 9. 1575). | [
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Sharpe, J.
This is an appeal from an order dismissing a garnishment and releasing the garnishee defendant.
The facts are not in dispute and are as follows: On April 8, 1947, plaintiff began her cause of action by the filing of a declaration against defendant company. The basis of the action was that on October 18, 1946, the defendant, its servants and agents unlawfully caused plaintiff’s husband, Anthony Carr, to be arrested by the police department of the city of Hamtramck and in combination with said police department held the person of Anthony Carr from October 18, 1946, until October 21, 1946, for the purpose of extorting from said Anthony Carr certain sums of money claimed by defendant company to be due from Anthony Carr to defendant company; and that because of such, action taken by defendant company she (plaintiff) paid to defendant company the sum of $2,210 on October 21, 1946, and therefore claims recovery in the sum of $3,000.
On April 11, 1947, plaintiff signed an affidavit for a writ of garnishment directed to the National Bank of Detroit. On April 25, 1947, the National Bank of Detroit filed its disclosure and on April 17, 1947, defendant company filed a motion to quash the writ of garnishment for the following reasons:
‘ ‘ 1. That the declaration filed in this cause shows that the cause of action arises out of a tort and not upon contract;
“2. That the declaration filed in this cause does not disclose any basis, upon which a writ of garnishment can be issued or sustained;
“3. That plaintiff’s cause of action does not arise upon contract nor for damages in any given amount arising out of contract.”
On May 20, 1947, the trial judge entered an order quashing the garnishment proceedings. Plaintiff appeals.
Proceeding in garnishment is special and statutory, affording a harsh remedy, and one pursuing it must bring himself within the statute and follow its mandates. W. H. Warner Coal Co. v. Nelson, 204 Mich. 317; Weber v. Wayne Circuit Judge, 217 Mich. 561; Detroit Independent Oil Co. v. Miller, 235 Mich. 191; People’s Wayne County Bank v. Stott, 246 Mich. 540 (64 A. L. R. 427).
The statute relating to garnishment (3 Comp. Laws 1929, § 14857 [Stat. Ann. § 27.1855]), provides:
“In all personal actions arising upon contract brought in the several courts or in municipal courts of civil jurisdiction, whether commenced by declaration, writs of capias, summons or attachment, aifd in all cases where there remains any sum unpaid upon any judgment or decree rendered in any of the several courts hereinbefore mentioned or upon any transcript of a judgment filed in said courts * * * a writ of garnishment shall be issued. ’ ’
The rule followed in Michigan is that garnishment may be maintained only upon actions arising upon contract.
In Talbert v. Solventol Chemical Products, Inc., 304 Mich. 557, we said:
“By the express terms of the statute garnishment is not permissible in tort actions, but only in ‘personal actions arising upon contract’ or in suits on judgments or decrees. 3 Comp. Laws 1929, § 14857 (Stat. Ann. § 27.1855).”
The declaration filed in the case at bar charges the defendant company with directing the arrest of plaintiff’s husband by conspiracy with the Hamtramck police department. The basis of plaintiff’s action is tort and not contract. The trial court was correct in quashing the writ of garnishment.
The order dismissing the garnishment is affirmed, with costs to defendant.
■ ' Bushnell, C. J., and Boyles, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Reid, J.
On February 1, 1945, defendant, the appellant herein, was convicted on trial before a jury of the offense of offering and promising a bribe to a member of the house of representatives of the State of Michigan. A notice of motion for a new trial was filed February 17, 1945, which motion was denied on March 20, 1945. Defendant on leave granted filed his claim of appeal, August 7, 1945. Defendant sets forth eight reasons or groups of reasons as a basis for his claim for a new trial, the first four of which’are discussed at greater length than the others in the briefs filed by the parties and are as follows:
First, defendant claims he was deprived of his constitutional right to a fair and impartial trial by the denial of his two motions for-continuance of the case. Defendant’s claim in the two motions was that the mind of the public was so inflamed against him because of excitement occasioned by the murder of State Senator Warren G-. Hooper that it therefore .would be impossible for him to obtain a fair and impartial trial.
Second, defendant claims the court erred in not granting a continuance to enable defendant to meet the change in date of the alleged offense, from February 20, 1941 to February 18, 1941.
Third, defendant claims error based upon the admitting into evidence of testimony that within a minute and a half or a few minutes after the occurrence of the claimed offense the principal witness related that occurrence to his fellow members of the house of representatives.
Fourth, defendant claims prejudicial error in the latitude of cross-examination permitted to plaintiff concerning defendant’s connection with Senator Hooper, and about other matters claimed by defendant to be foreign to the issue and tb be designed to cast suspicion on the character of defendant.
In respect to the first claim as to errors, defendant recites that he was arraigned on January 8, 1945, a plea of not guilty was entered for him, and the trial set for January 29th following. On January 11, 1945, Senator Hooper was found shot to death in his car on a public highway, which occurrence 'was headlined in every daily newspaper in Michigan and broadcast on the radio. Pictures which had been taken at the scene of the crime were published, and stories of the search for the alleged murderers occupied front pages of daily newspapers in Michigan. Newspapers carried stories from which there were inferences to be drawn by the readers that defendant had something to do with Hooper’s murder. On January 17, 1945, defendant filed a motion for a continuance of the trial, and claims that a campaign of false publicity was conducted against defendant'by public officers. This motion was denied by Judge Carr, the circuit judge who had acted as grand juror. The motion was renewed on January 29th, before the trial began, before Judge Simpson, the trial judge. Judge Simpson in disposing of the motion for a continuance among other things said:
“I think that the people at the present time do not always take so seriously what they see in the paper, and do not pay any attention to it. At least, they don’t have any fixed opinions in regard to it.
“I feel it is a question entirely as to the jurors’ answers heré in court as to whether or not they can fairly and impartially try this case, or if they have such fixed opinion that they can’t set it aside for the testimony that they shall hear here in court.
‘ ‘ The motion is denied. ’ ’
Defendant claims that Judge Carr, having acted as grand juror, was disqualified to hear the motion for continuance and that his ruling was invalid and that Judge Simpson merely adopted that ruling, which action on the part of Judge Simpson defendant claims is, therefore, also invalid. However, as quoted above, Judge Simpson in reality determined to accept the results of the voir dire examination of jurors instead of merely adopting Judge Carr’s ruling. A consideration of the answers given by jurors on their voir dire examination discloses that there was not prevalent such hostile opinion against defendant as claimed by him: A fair-minded jury was obtained without excessive difficulty. The course adopted by Judge Simpson is not subject to valid objection. See People v. Swift (syllabus 2), 172 Mich. 473, People v. Connors (syllabus 5), 251 Mich. 99; People v. Raider, 256 Mich. 131, 134; People v. Schneider (syllabus 2), 309 Mich. 158. There is no occasion to determine whether Judge Carr was disqualified to pass upon the motion.
Defendant in support of Ms motion caused to be inserted into the record copies of various headlines from various papers published throughout the State, particularly three Detroit newspapers. It seems that the three Detroit papers had a. circulation in Lansing and East Lansing, but no direct showing is made as to their circulation in other parts of Ingham county, in which county the trial was held, and none of the jurors on the trial of the case are shown to be of Lansing or East Lansing.
The record does not show any challenge to the array of jurors nor any motion for a change of venue. At the conclusion of the voir dire examination of jurors, Mr. Gore (defendant’s attorney) announced, ‘ ‘ The defendant is satisfied with the jury, your Honor.” Under the entire record, we are satisfied that the trial judge properly disposed of the motion for adjournment that had been filed on January 17, 1945, and renewed on January 29, 1945.
Defendant’s claim under the second claimed error in general is that February 20, 1941 was alleged in the information as the date of the offense and defendant was not apprized until at the close of the prosecution’s opening statement that February 18, 1941 would be relied upon as the date of the commission of the offense. The warrant charged February 20, 1941 as the date. On preliminary examination witnesses for the prosecution, Gail Handy and Bert Storey, testified to February 20th and not February 18th as the date of the occurrences as to wMch their testimony was given. The date of the offense was alleged in the information with a videlicet, “heretofore, to-wit: on the 20th day of February, A. D. 1941.” Defendant seasonably filed on January 17, 1945, notice of alibi with list of six witnesses to establish the alibi. Defendant claims that he was taken completely by surprise by the announcement of the prosecutor in his opening statement that the prosecution relied on February 18, 1941 as the date, and defendant thereupon immediately moved to discharge the jury, which motion was denied. Defendant also asked for a reasonable continuance to enable him to prepare to meet the changed date, which motion was also denied. Defendant was prepared by his witnesses to show that he was in Grand Rapids at the Democratic State convention on February 20, 1941, and his six witnesses would have testified to that fact. Defendant was forced into a trial,,and as a witness testified that he was unable to say where he was on February 18, 1941, but that if he had gone to Chicago he went there to see Charles Thomas, who was sick and a friend of his, and further, that it was possible that he was in Lansing on February 18th. Defendant in support of his claim of prejudice by reason of being forced to trial under the circumstances above described cites several cases from other jurisdictions and from 22 C. J. S. p. 791.
The prosecution claims that the date being alleged in the information under a videlicet where time is not of the essence of the offense, defendant is obliged to be on guard and to be ready to answer to a different date, citing 3 Comp. Laws 1929, § 17265 (Stat. Ann. §28.991) as follows:
“Sec. 51. Except insofar as time is an element of the offense charged, any allegation of the time of the commission of the offense, whether stated absolutely or under a videlicet, shall be sufficient to sustain proof of the charge at any'time before or after the date or dates alleged, prior to the finding of the indictment or the filing of the complaint and within the period of limitations provided by law: Provided, That the court may on motion require the prosecution to state the time or identify the occasion as nearly as the circumstances will permit, to enable the accused to meet the charge.-’ ’
It is not made to appear that in the jurisdictions from which defendant cites decisions respecting change of date when defendant has given notice of alibi as to date first alleged, there are statutes similar to ours (hereinafter quoted) requiring a showing of actual prejudice by change of date on the part of the prosecution. In Michigan the defendant is, at least within reasonable bounds, required both by the presence of the videlicet in the information and by the express provision of the statute to take notice that the prosecution may, after all, offer proof of another date than that expressly alleged.
Plaintiff cites from People v. Whittemore, 230 Mich. 435, 437:
“The information alleged the crime was committed £on about the 28th day of August, A. D. 1923,’ and defendant claims there was error in not confining the prosecution to that particular day. He claims he came to trial prepared to and did establish his presence elsewhere the day alleged and he should not have been called on to meet the charge on any other day. The occasion charged was specific, and the court was not in error in letting the act charged, and not a particular day alleged under videlicet, govern. A videlicet avers a date tentatively, and unless a particular day or date is essential to a crime there is no variance if the evidence shows that the very crime charged was actually committed on a different date.”
Defendant cites People v. Price, 74 Mich. 37, in which the prosecution applied for leave to indorse on the information the names of witnesses known to the prosecution at the time the information was filed. We there held, page 41, that such belated in dorsement required a continuance over the term on motion of defendant. This was an entirely different situation than existed in the case at bar. In the Price Case, the statute was imperative that the names of known witnesses should be indorsed when the information was filed; In the case at bar the statute requires the defendant to take notice even without a videlicet that a different date may be proven.
Plaintiff claims that a variance of two days was not a fatal variance and further claims that the defendant suffered no prejudice. Defendant’s testimony on the trial shows he might have been in Chicago or he might have been in Lansing on February 18, 1941. Sixteen days after his conviction and on February 17, 1945, defendant filed a motion for a new trial. He did not support his motion by any affidavit showing actual prejudice or that he had a defense of alibi with respect to the new date, February 18, 1941. He has not at any time informed the. court of his whereabouts on February 18, 1941, except by his testimony above quoted. There is no assurance that in the event of a new trial the defendant would be in a position to offer any testimony to establish an alibi for the date, February 18, 1941.
Defendant concedes that time is not of the essence of the offense, but claims he suffered prejudice respecting his preparation and noticie of an alibi. But see 3 Comp. Laws 1929, § 17290 (Stat. Ann. § 28.1016), from which we quote in part:
“No action of the court in refusing a continuance or postponement under this section shall be reviewable except after motion to and refusal by the trial court to grant a new trial therefor and no writ of error or other appeal based upon such action of the court shall be sustained, nor reversal had, unless from consideration of the whole proceedings, the reviewing court shall find that the accused was prejudiced in his defense or that a failure of justice resulted.”
Defendant in the case at bar is required by the statute cited to make out a showing of actual prejudice by reason of change in date alleged, not merely that prejudice could have resulted to him but that it actually occurred. If on his motion for a new trial defendant in this case had been able to make a -showing that he could have produced witnesses whose testimony would tend to establish for bim an alibi as to February 18, 1941, or that he himself could testify to such an alibi, and if the court were satisfied that the showing was substantial in its nature, the court then doubtless would have concluded that actual prejudice resulted to the defendant from the change of date. No such showing was made. " The trial court might well at least have continued the case for a brief period or time to enable the defendant to prepare his defense, but the action of the court in not granting such continuance, is not shown to have resulted in actual prejudice so far as we are able to determine from the entire record in this case. Continuance is within the sound discretion of the court. The burden is on the party claiming abuse of discretion to show it. People v. Raider, supra, 134. See, also, People v. Schneider, supra, 164. We conclude the court’s action resulted in no prejudice to defendant and no new trial should be granted in consequence of denial of continuance on account of the change of date.
Defendant’s third claim of error relates to admission of testimony that witness Handy related, the occurrence of the offense to others.
In that ,connection we note that on direct examination the people’s principal witness, Gail Handy, tes tilled that on February 18, 1941, around noon he was called by telephone by Mr. Post, chairman of the State affairs committee of the house. Mr. Handy went to the second floor of the Capitol shortly after lunch and to his desk. Thereupon, defendant,- Fitzsimmons, stepped up to the rail behind witness and said: “Gail, I would like to speak to you a minute.” Mr. Handy turned around, faced defendant, and walked out of the aisle that leads into the area behind the rail, defendant putting his arm on witness’ shoulder as they casually started walking to a point very close to the east window. Then defendant said: “Gail, where do you stand on this racing bill?” Mr. Handy replied he “couldn’t tell him where he stood on it.” Defendant then said: “If you go 'along with me on it I have got $500 for you,” and further “I’ll have the bill under control then. I’ll put the money in your mail box.” The witness stated he wasn’t interested in that kind of money, testifying without objection that by the words “that kind of money” he meant bribe money; that if the bill had any merit it would come out and if it didn’t, it would stay in committee. The witness also testified that the effect of this interview was to make him a little mad and disgusted. He then went to the stairway leading to the committee room and met Bert Storey, a member of the committee. ,
“Q. Did you tell him about what had just happened?
“Mr. Walker: Oh, I will object to that. It is a matter that we argued in chambers yesterday. And at this time I would like to put our objection on the record.
“The Court: Well, he can state that he made the complaint, but he cannot go into the details of it. ’ ’
When witnesses Storey and Post testified, as hereinafter recited, that Handy told them about what had occurred, it can be considered that the jury inferred that what was meant, was what Handy had testified-to as above recited.
Defendant cites numerous authorities upon the question of statements claimed to be part of the res gestae but seems to consider of no great importance the case of People v. Johnson, 186 Mich. 516, from which we quote as follows, page 521:
“Persons in and about the house heard the shooting, and some of them saw the flashes from the guns. They at once rushed to the scene, found Mr. Laitila, and took him into the house. They were permitted to state what they saw and heard of the occurrence. Over the objection of counsel that it was hearsay, they were allowed to testify what Mr. Laitila said about the shooting. The witnesses say this conversation occurred within a few minutes of the shooting. It was admitted upon the theory that it was part of the res gestae. The doctrine of res gestae is discussed at considerable length in People v. Simpson, 48 Mich. 474; White v. City of Marquette, 140 Mich. 310; Gilbert v. Railroad Co., 161 Mich. 73; and the cases cited therein. We think these cases are authority for the admission of Mr. Laitila’s statements as to the shooting.”
Another case which, we should consider is People v. Madaj, 221 Mich. 660, in which we say at pages 661, 662:
“The first question urged by counsel relates to the admission in evidence of a statement made by the, deceased to Doctor Herrick a short time after the shooting. It was objected to as hearsay, but was received as part of the res gestae. The time was about 10 minutes after the shooting, as nearly as the doctor could fix it. The statement was not solic ited by any questioning but was voluntary and spontaneous. It related to the res gestae and was properly admitted under authority of People v. Johnson, 186 Mich. 516, and cases therein cited.”
It seems fairly clear that under the last'two authorities the testimony of the witnesses Handy, Storey and Post, objected to as hearsay, was properly admitted as part of the res gestae. See, also, Lambert v. People, 29 Mich. 71.
Mr. Handy testified on direct examination that it was about a minute or a minute and a half after leaving defendant when he (Handy) met Storey; thát he related to Storey what had just happened; that they proceeded to the ¿ommittee room, where he again related to the whole committee what had happened. Mr. Handy does not seem to have heard the remark by Storey to Post to the effect that Handy had something to relate and the record does not bear out defendant’s assertion that Post asked Handy to tell something to. the committee. Storey testified:
“I suggested to Mr. Post that Mr. Handy had something to say to the committee.”
Post testified:
“Mr. Storey told me that he thought I ought to hear from Mr. Handy before we took up the bill.”
As before noted, Handy’s testimony would bear out the proposition that he (Handy) did not hear any suggestion that he should .make a statement to the committee and he seems to have made the statement to the committee of his own motion.
We conclude that the statement by Handy to the committee was voluntary. We indicated in People v. Madaj, supra, that such a statement in order to be part of the res gestae should be voluntary. We do not overlook the sustained ruling in People v. Simpson, 48 Mich. 474, at page 479, which, admitted testimony of witness Trollope that he asked the murdered woman, “Who shot you, madam?” and she said it was John Simpson. In the case at bar, we further conclude in view of all the testimony of witnesses Handy, Storey and Post, that Handy’s statement to Storey and his statement to the committee were properly received as statements which could be found to have been voluntarily made by Handy while still under the immediate excitement engendered by defendant’s offense and well within the limits of time as indicated in the Michigan cases. There had been no such lapse of time as to indicate that it is likely that Handy could have contrived a false narration.
In his fourth contention defendant claims reversible error in respect to certain questions and answers permitted on the cross-examination of the defendant while on the stand, especially concerning Ms acquaintanceship with and associations with Frank D. McKay, William Green and Warren G. Hooper. Defendant especially accentuates that on January 29, 1945, the date of the commencement of the trial, the following article appeared in the Detroit Times:
“Fitzsimmons Goes on Trial Today on Bribery Charges Sigler to Quit Murder Quiz Temporarily Lobbyist Accused op Pacing Graft
“Hooper, principal witness against McKay, Fitzsimmons and Green, was found shot to death Jan. 11 in his automobile on M-99 near Springport. He was en route to his Albion home.”
The record is devoid of any showing that any of the jurors read this particular article. Their voir dire examination disclosed that none of them had any fixed opinion concerning the merits of the case on trial. The defendant’s testimony in answer to the various interrogatories permitted on cross-examination was left entirely undisputed. The jury had the benefit of defendant’s testimony and he revealed in some detail his acquaintanceship with and association with the three persons mentioned. We cannot say that the effect of this cross-examination was prejudicial to defendant. The prosecutor asked no question that carried the implication- or insinuation that defendant had threatened Hooper’s life or that defendant was implicated in the murder of Hooper. The cross-examination of defendant did not exceed proper bounds.
Another claimed error related to the calling of Judge Carr as a witness for rebuttal. This rebuttal was in denial of the testimony of Mr. Rush-ton, former attorney general. Mr. Rushton as a witness for defendant had testified that he had told Judge Carr about certain statements made by witness Handy. Judge Carr testified that Mr. Rushton did not discuss with him the G-ail Handy matter. The trial court committed no reversible error in permitting the rebuttal.
We have considered but determine to be unimportant claims of error concerning the claimed want of liberality of ruling during the cross-examination of witness Handy. We cannot plant error upon mere want of liberality of ruling. People v. McKernan, 236 Mich. 226, 230.
Defendant further claims that he was prejudiced by the undue chastisement by the court which occurred in the following particular on cross- examination of defendant. Defendant had been .asked how much he had made ont of a certain campaign.
“ Q. Couldn’t tell whether it was one dollar or one hundred dollars or five thousand?
“A. No.
“Q. You can’t give us any help?
“A. I don’t go out looking for money, chiseling.
“Q. Wait a minute.
“A. I worked for you for three months.
“Q. Wait a minute.
“The Court: Just a minute. Just a minute.
“A. If you want—
“The Court: Now just a minute. Just a minute.
“A. And didn’t get anything.
“The Court: Now, just a minute. Pay attention to the questions and answer the questions.
“The Witness: Let him ask me the questions properly. Let him ask the question properly.
“The Court: Now, just a minute. Are you in a contemptuous mood towards me?
“The Witness: No, sir.
“The Court: Now, I want you to pay attention to the questions <and the answers. And answer the questions.
“The Witness: Yes, sir, your Honor.
“The Court: You understand that?
“The Witness: Yes, sir, your Honor.
“Mr. Sigler: All right.
“The Court: All right.
“Q. (By Mr. Sigler, continuing): Tell this jury—
“The Court: Don’t you talk back like that to me or you will find yourself in contempt of court.
“All right, go ahead.
“The Witness: Yes, sir, your Honor.”
The defendant volunteered matter which he should not have considered necessary in the trial of his case. -By Ms conduct he invited the reprimand which he received. No error was committed by the court.
We have examined defendant’s claims of errors not referred to in detail in this opinion and find that in such respects no error was committed by the trial judge.
A careful examination of the entire record convinces us that the defendant had a fair trial. We find the evidence sufficient to justify the verdict of the jury that the defendant was guilty beyond a reasonable doubt. The judgment appealed from is affirmed. '
Bushnell, C. J., and Sharpe, Boyles, North, and Butzel, JJ., concurred.
Dethmers and Carr, JJ., did not sit. .
The trial court in admitting testimony of the statements as res gestae cited People v. Tobin, 230 Mich. 214; Ayling v. City of Detroit, 275 Mich. 338; and Sheathelm v. Consumers Power Co., 280 Mich. 106. | [
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Dethmees, J.
On June 16, 1937, plaintiffs recorded in the office of the register of deeds of Midland county the plat of McMurtry’s subdivision, containing 57 lots which they owned. After conveying 10 lots by deeds, of which 5 specified certain use restrictions and 5 did not, plaintiffs executed and, on April 5, 1938, recorded a so-called supplement to the plat, in which plaintiffs were described as owners of the 57 lots and by which certain use restrictions were sought to be imposed upon the entire subdivision. Included was a restriction forbidding sale of beer or other intoxicating liquors.
On June 2, 1941, plaintiffs conveyed lot No. 35 to defendants’ predecessors in chain of title by a deed making no reference to restrictions, but containing a warranty against encumbrances. Subsequent deeds of conveyance in the chain of title to lot No. 35, including the deed whereby defendants acquired title, are equally silent as to the restrictions and defendants purchased without actual knowledge thereof. Prior to defendants’ purchase, beer and wine had been sold for a short time on the adjacent lots numbered 36 and 37, which lots plaintiffs had sold, without restrictions, before recording the supplement.
In February of 1946, defendants obtained a license to sell beer and wine on lot No. 35 for consumption off the premises. On April 24, 1946, plaintiffs, as owners of a-remaining portion of the subdivision, filed their bill of complaint praying that defendants be,restrained from selling beer and other intoxicating liquors on lot No. 35. From decree for plaintiffs the defendants appeal.
Defendants’ first two contentions, on appeal, are (1) that the recorded supplement did not constitute constructive notice of the restrictions to defendants and (2) that the court erred in admitting it in evidence. Defendants base these contentions on the reasoning that “The plat act of 1929” (Act No. 172, Pub. Acts 1929 [3 Comp. Laws 1929, §§ 13198-13277 (Stat. Ann. §§ 26.431-26.510)]), as then amended, governed the making, approving, filing, recording, altering and vacating of plats, and that there was no provision therein made for filing or recording of a supplement to a plat imposing restrictions on the use of the previously platted premises.
The law applicable to recording of conveyances defines “conveyance” as including every instrument in writing by which the title to any real estate may be affected in law or equity, with exceptions not material here (3 Comp. Laws 1929, § 13309 [Stat. Ann. § 26.552]). When conveyances comply with formal statutory requirements as to execution (3 Comp. Laws 1929, § 13320 [Stat. Ann. § 26.563]) the register of deeds is required to enter them in the proper entry book, if left with him for that purpose, upon payment of proper fees (3 Comp. Laws 1929, §§ 13300, 13372 [Stat. Ann. §§ 26.543, 26.761]). The supplement affects title to real estate, is a conveyance as defined by the statute and, no question being raised-as to its proper execution, it was entitled to be recorded, -constituted constructive notice to defendants of the restrictions, and was admissible in evidence.
Defendants next point “to the representation in the supplement that plaintiffs then were the owners of the entire subdivision, although, in truth, they had theretofore sold 10 lots. Defendants urge that if they had known of the existence of the supplement on record and purchased in reliance thereon they would have been defrauded, because actually the restrictions could not have been enforced in their favor as relates to the 10 lots sold prior to recording the supplement. From this, defendants conclude that enforcement of the restrictions upon the use of defendants’ lot would constitute a fraud upon them. This is a non seqúitur.
Finally, defendants contend that plaintiffs are estopped by their warranty deed-to defendants’ predecessors in title to enforce restrictions not mentioned therein. In this connection defendants cite authorities for the propositions that (1) a use restriction amounts to an encumbrance; (2) a grantee in a warranty deed with full covenants may rely thereon and need not be vigilant to search the records or examine the title to discover encumbrances. Pertinent as these authorities might be in a suit by a grantee against his grantor for damages for breach of the warranty against encumbrances, they are not decisive of plaintiffs’ right to enforce the restrictions. ’ Plaintiffs’ covenant against encumbrances in the warranty deed to defendants’ predecessors in chain of title was personal to the latter, did not run with the land, and any right of action which might have accrued to them for breach thereof did not pass by deeds of the land to the defendants. Davenport v. Estate of Davenport, 52 Mich. 587; Pease v. Warner, 153 Mich. 140; Simons v. Diamond Match Co., 159 Mich. 241. The defendants had no legal right to rely on such covenant by plaintiffs, who were not their immediate grantors, and to ignore the records in the office of the register of deeds. As a matter of fact, defendant Bentley Smith testified that when they purchased the lot they had had no knowledge of such covenant and had not relied thereon. Lacking, therefore, is an element essential to defendants’ claim of estoppel; vis., a right to rely and actual reliance by them, to their detriment, upon a representation or covenant by the plaintiffs.
Decree affirmed, with costs to plaintiffs.
Bushnell, C. J., and Sharpe, Boyles, Reid, North, Butzel, and Carr, JJ., concurred. | [
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Butzel, J.
Angelo DiPonio, plaintiff, as the lowest of several bidders, was awarded a contract to build certain extensions of the sewer system of the city of Garden City, defendant. The sewers previously built have been financed through an issue of $400,000 of revenue bonds, the interest and principal being payable from the rates collected from the users of the water and sewer facilities. Shortly after the previous sewers had been built and the issue of the revenue bonds, plaintiff and defendant executed a written contract dated July 8, 1943, in accordance with plaintiff’s bid. It provided for an extension of the sewer system under an alley and certain streets designated. Plaintiff was to be paid $33,733.89 more or less for the construction, the amount to be determined in accordance with unit prices contained in plaintiff’s proposal. General as well as technical specifications and plans, which had been prepared by the engineers, were specifically designated in the contract and were to be deemed a part thereof. A firm of Detroit engineers referred to in the contract as the “engineer” had prepared the plans and specifications for the city. They were given the power and duty to superintend the carrying out of the contract and determine the sufficiency of the construction and material, and they were given the decisive word in regard to the proper performance of the contract by plaintiff. The specifications also provided that the contractor was to perform such extra and unusual work as the engineer might in writing specifically direct. The city also had the right to make alterations in the quantity of work. The contract further provided that in order to enable the contractor to prosecute the work advantageously, the engineer should make and issue to the contractor semimonthly estimates in writing of the approximate value of the materials and work furnished by the contractor and accepted by the engineer. The city agreed to pay 85 per cent, of each estimate less any amount previously paid. The remaining 15 per cent, was to be paid to the contractor upon certain conditions that plaintiff fulfilled.
A very large amount of extra work was ordered and done by plaintiff on the order of the engineer. From time to time the engineer. issued estimates which on February 28, 1944, amounted to $61,510.23. No part of this amount has been paid to plaintiff. After waiting a long time he brought the instant suit against defendant to recover this amount and interest. The case was dried without a jury and the judge awarded plaintiff a judgment of $70,641.36. Defendant appeals.
There can be no question as to the proper and satisfactory fulfillment of the contract'by plaintiff, or that the amount claimed is due him with interest if the city is liable. The city has accepted all the benefits of plaintiff’s work, and in May, 1947, at the time of the trial, 224 connections had been made by the city for owners of property who had availed themselves of the use of the new sewers built by plaintiff under the contract. The city first made a flat charge of $50 and later a $60 charge for each connection with such new sewers, but furnished the labor and materials, the cost of which the record does not show. However, the city has been collecting rates from 224 property owners and the moneys thus received have been turned over to the general operating account of the city’s water and sewer department, which was financed at least in part by the $400,000 revenue bond issue. According to the record of the auditor, the estimated net income from the owners of improved property, which had connections with sewers built by the contractor, amounted to $39.75 during the first few months after the sewers were built. The following year it amounted to $740.43, and the third year ending March 31, 1946, it amounted to $2,811.20. The city is thus collecting rates from sewers built by plaintiff, who has not received a single penny for his work and materials.
The defendant raises some question as to the contract for the extras.- The engineer, however, testified that certain additions were authorized by the common council after the contract was entered into. He had issued the directions to plaintiff. The judge stated in his opinion that the work was properly done and, as stated by the city engineer, in accord anee with the plans and specifications and in conformity with the contract. The judge further found that there was no claim that the work was not authorized or requested by the defendant. There is no assignment of error on the finding in defendant’s reasons and grounds of appeal. In fact, the city has recognized that the amount is due plaintiff if it is legally obligated to pay at the present time or in any other manner than from the proceeds from the sale of revenue bonds, when and if issued and sold.
The city strenuously contends that the entire contract is void, ultra vires, and unenforceable. It claims it had no power to make such a contract unless payment to plaintiff be limited to the proceeds of additional revenue bonds when and if ever issued and sold. The city concedes that there is some moral but not any legal liability on its part, and it would be willing to pay plaintiff if permitted to legally issue additional revenue bonds and be able to sell' them. It shows that it was refused such permission. While it made an attempt to have additional bonds in the amount of $75,000 issued long after this case was begun, it shows that this permission has been refused.
Defendant further claims that there was a distinct verbal understanding on the part of all parties that plaintiff was only to be paid from a Federal grant which it expected to receive or from the proceeds of revenue bonds when issued and sold. It insists that plaintiff knew of these conditions and distinctly understood that payment would have to be made either from the Federal grant or proceeds from revenue bonds. Time was all important when the contract was entered into. Plaintiff had a priority on materials, and sewer connections were necessary to make it possible to meet the specifications required to finance the building of- homes for workers in war in dustries. The Federal grant was not forthcoming, nor were additional revenue bonds issued. It is claimed that there are not sufficient revenues from properties with connections with the new sewers so as to justify the validation of additional bonds in the amount of $75,000.
Plaintiff, on the other hand, absolutely denies that payment to him was contingent. Nothing was stated in the contract to that effect. The terms were cash as hereinbefore stated. It is elementary that a written contract cannot be changed by parol agreements to the contrary. Plaintiff received the final estimate from the engineer showing the value of the work completed on February 28, 1944, or slightly less than eight months after the contract was entered into.
On February 14, 1944, plaintiff wrote to the mayor of defendant city stating that at the time of the making of the contract the financial position of the city was outlined, and attention was called to the need for installing the sewers so as to maintain the validity of the contractor’s priorities and permit the construction without delay. Plaintiff further stated that he was assured that the sale of revenue bonds to pay him would be consummated within 30 days after signing the contract. In reliance thereon he signed the contract and proceeded with the work. He, therefore, asked the city to pay him a fair rate of interest on the amount due him. On February 28, 1944, evidently in reply to the letter, the common council of the city unanimously passed a resolution referring to plaintiff and others, stating:
“"Whereas said contractors and engineers have proceeded with construction and engineering without payments on said contracts for such services, with the understanding that the city of Garden City was making an application to Federal "Works Agency for governmental grant for certain further construction work necessary to the city and found it advantageous to delay the necessary proceedings for the issuance of bonds to pay for the city’s share of the construction of projects already completed as aforesaid and to be completed under further projects above mentioned, for the' reason that it was not readily ascertainable by the city as to just the amo.unt of bonds to issue, and
“Whereas the above mentioned contractors and engineers have kindly agreed to proceed with the construction and engineering as aforesaid in order that the improvements be laid' for war housing needed in the emergency, and
“Whereas if the city of Garden City had made payments on contracts for such construction and engineering when the work had been completed, it would have issued bonds upon which it would now and would have been paying interest.
“Now therefore be it further resolved that the city pay to the above mentioned contractors and engineers interest upon all sums due them for construction and engineering on said project work from the date sums of money áre due under the said contracts, according to engineers’ releases and certificates, until paid, such interest to be in the same amount and at the rate provided for in the income revenue bonds which the city issues and sells for the purpose of paying for such project construction and other proper sums incidental thereto.”
No interest was ever paid. An unsuccessful effort was'made by defendant to raise the money due plaintiff before and after this suit was begun.
Defendant’s main contention is that it is a home-rule city (Act No. 279, Pub. Acts 1909, as amended), and that under clause (g) of section 3 of the act (1 Comp. Laws 1929, § 2230 [Stat. Ann. §5.2073]) and clause (a) of section 5 of the act (1 Comp. Laws 1929, § 2241, as amended by Act No. 60, Pub. Acts 1941 [Comp. Laws Supp. 1945, § 2241, Stat. Ann. 1947 Cum. Supp. § 5.2084]), its rate of taxation cannot exceed 2 per cent, of the assessed valuation of its real and personal property. It was shown that the budget for the year 1943 was prepared in the spring; of that year, was adopted by the common council on July 1, 1943, at a special session called for that purpose. This budget adopted provided for the raising of taxes in the amount of $64,783.92, or $18.20 per thousand on the assessed valuation of $3,603,266. The budget, containing no item for sewer construction, was prepared long before and adopted a week prior to the date of the contract with plaintiff. In 1944, the assessed valuation had increased to $4,334,495. Two per cent, of this amount would have netted the city $20,000 over and above the budget requirements had they remained the same as during the previous year. '
The contract was not ultra vires. In American LaFrance & Foamite Industries, Inc., v. Village of Clifford, 267 Mich. 326, we said, quoting from Webb v. Township of Wakefield, 239 Mich. 521:
“ ‘The good faith of government should never be less sacred than that of individuals. ’ "Where the executed contract is neither malum in se nor malum prohibitum, but can only be avoided because of defects in the manner of its execution, the corporation cannot retain the benefits and deny the authority. ’ ’
Defendant’s main difficulty is that it is not shown in anyway how the city was precluded from entering into a contract to build sewer extensions although under the home-rule act the city could not increase the rate of taxation for the expenses of running the city so as to exceed 2 per cent, of the real and personal property valuation. Defendant’s charter is peculiar in that it contains no limitations on the city’s right to make contracts or increase its debts unless prior thereto appropriations and necessary funds and provision for raising these funds have been made. Under section 17 of chapter 30 of the fourth-class city act (1 Comp. Laws 1929, § 2151 [Stat. Ann. § 5.1946]) and under many charters of other cities, there will be found provisions prohibiting the entering into contracts prior to a tax or assessment having been levied to pay'the cost. Cases cited by defendant referring to such cities are not in point. Defendant undoubtedly did rely upon a Federal grant, but in lieu thereof it cannot ask plaintiff to forfeit payment. Plaintiff should not be penalized because of defendant’s delay and inaction, and final inability to issue and sell additional revenue bonds. It is possible that it could have secured the validation ,of a lesser amount of revenue bonds for the time being and applied the proceeds from their sale on plaintiff’s indebtedness and then paid him the balance from other sources. It is very possible that defendant may be able to issue and sell more revenue bonds before many years have elapsed, if it continues to enjoy the growth it has had in the past. We, however, shall not indulge in speculation.
Defendant did have a right to enter into the contract. The record does not satisfy us that defendant was without funds. On October 9, 1943, shortly after the contract was entered into the city clerk wrote plaintiff stating that the city was not at that time in a position to use moneys on hand to a very great extent for the expanding program of sewer construction, and that the city was willing to enter into such construction for a $150,000 assured program. It was suggested that plaintiff could proceed to the extent of $25,000 of construction to be outlined by the engineers and by the time the construction was under way the city would have decided which way to move and would be in a position to carry on tbe complete prosecution of the original project and the sale of $150,000 of bonds and limit the proje.ct to that amount. It further stated that plaintiff was given authority to proceed with the extension of such work as was designated by the engineer and he should indicate his willingness by letter. Evidently plaintiff did not write the letter but he proceeded in accordance with the work.
The city is not only retaining the benefit of the contract but, also, collecting a revenue therefrom. In Coit v. City of Grand Rapids, 115 Mich. 493, we held:
“A municipality cannot retain the benefits of a contract which has been fully performed by the other party, and which is neither malum prohibitum nor malum in se, and at the same time deny the validity of the contract because of defects in the manner of its execution (syllabus).”
Also, see Carey v. City of East Saginaw, 79 Mich. 73; Spier v. City of Kalamazoo, 138 Mich. 652; Central Bitulithic Paving Co. v. City of Mt. Clemens, 143 Mich. 259; Peterson v. City of Ionia, 152 Mich. 678; City of Saginaw v. Consumers’ Power Co., 213 Mich. 460; Commercial State Bank of Shepherd v. School District No. 3 of Coe Township, Isabella County, 225 Mich. 656; Webb v. Township of Wakefield, 239 Mich. 521; L. W. Kinnear, Inc., v. City of Lincoln Park, 260 Mich. 250. The question of a city’s right to enter into a sewer contract was raised in Oakland County Drain Commissioner v. City of Royal Oak, 306 Mich. 124, wherein we held that there was no constitutional or statutory limitation upon political subdivisions obligating themselves to pay for future sewage disposal services as rendered.
In Holland v. Clerk of Garden City, 299 Mich. 465, we held that the council of tbe city of Garden City (the defendant in tbe instant case) bad adopted ordinance 46 pursuant to tbe provisions of Act No. 94, Pub. Acts 1933, as amended by Act No. 66, Pub. Acts 1935 and Act No. 2, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 2486-24 et seq., Stat. Ann. 1940 Cum. Supp. § 5.2731 et seq.), and bad a right to make an extension of a water supply system without a vote of the electors; that to construct a sewage system is a project of public health and safety within the sphere of activity contemplated by statute authorizing the issuance of self-liquidating revenue bonds by a city without submitting the proposition for the approval of the city’s electors.
A very similar question was raised in Morley Bros. v. Township of Carrollton, 305 Mich. 285, wherein in an opinion written by Mr. Justice North, we stated:
“Section 1 of Act No. 94, Pub. Acts 1933, as amended by Act No. 66, Pub. Acts 1935 (Stat. Ann. § 5.2731), authorizes townships and other municipalities to acquire or construct various public improvements including water supply systems. This act has been held constitutional. * * *
‘ ‘ The title of the act is so worded as to give first to the municipalities, including townships, authority to acquire or construct certain improvements (including water supply systems) and then, as an aid to carrying out such projects, the power to issue self-liquidating bonds. We can find nothing in the act which provides that only the money raised by such bond issue may be used to pay for such construction. It would not even be necessary for the township to float such a bond issue if the township had funds oii hand or other sources of income available with which sto pay for the construction of the project. ‘
“With authority being given to acquire or construct a public project as defined in the act, it must necessarily follow that authority to páy for the project is at the same time granted. The issuance of self-liquidating bonds is authorized as one means of so máldng payment, but it is not made an exclusive means of obtaining funds for such payment. * * *
“We view the plaintiff in this case as a creditor of the township and we find nothing in the cited statute which applies to creditors. The restrictions and reservations in the act apply only to holders of the self-liquidating bonds. Act No. 94 permitted the construction and therefore the contract was not ultra vires. Appellee’s contention to the contrary is not tenable. ’ ’
Defendant attempts to distinguish Morley Bros. v. Township of Carrollton, supra, from the instant ease on the ground that the township had no statutory tax limitation of 2 per cent, as provided for a home-rule city. We are not impressed with this claim. We are simply deciding whether the contract was ultra vires or not. The question is not whether defendant can levy a tax in excess of 2 per cent, of its real and personal property. The trial of the case was postponed in order to give the city an opportunity to raise the money by the issuance of revenue bonds. It was not until the latter part of 1947 when the judge entered the judgment for plaintiff. From the brief filed in this Court by the city just prior to the beginning of the present term of court, the city indicates that it disclaims any obligation to pay plaintiff unless possibly when and if it issues and sells revenue bonds. Without making any payments or doing any other act to toll the statute it would not be long before possibly the city might claim that plaintiff’s claim was outlawed.
It is suggested that there are many ways in which the city could help itself. A considerable sum can be collected by defendant over and above its current expenses by levying a full 2 per cent, on the valuation of the real and personal property. We are not satisfied from the record that a good part of plaintiff’s claim cannot be paid through the issuance of and sale of additional revenue bonds in a lesser amount than that heretofore asked by defendant. General obligation bonds can be issued by the city by a vote of three-fifths of the elector's. The electors undoubtedly have too high a moral sense to'permit the city to repudiate its debts and they also have too high a civic pride to' permit a judgment against the city to remain unpaid. Further, it is suggested that a special assessment district can be established and special assessments levied very simply without , the vote of the people. The city may issue judgment bonds to raise the money it owes under Act No. 86, Pub. Acts 1911 (3 Comp. Laws 1929, §§ 14706, 14707, Stat. Ann. §§ 27.1681, 27.1682). Other ways are also suggested. We pass on none of them. We do hold that in view of all the circumstances of this case, the contract was not ultra vires, and plaintiff is entitled to a judgment.
The judgment is affirmed, with costs to plaintiff.
Bushnell, C. J., and Sharpe, Boyles, Reid, North, Dbthmers, and Carr, JJ., concurred.
See 1 Comp. Laws 1929, § 2230 (Stat. Ann. § 5.2073); § 2241, as amended by Act No. 60, Pub. Acts 1941 (Comp. Laws Supp. 1945, § 2241, Stat. Ann. 1947 Cum. Supp. § 5.2084).—Reporter. | [
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Dethmers, J.
Defendant was arraigned in the recorder’s court for the city of Detroit on an information charging the crime of rape and entered a plea of not guilty. Before trial the prosecuting attorney filed a petition for examination of defendant by psychiatrists under Act No. 165, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 6991-1 et seq., Stat. Ann. 1945 Cum. Supp. § 28.967[1] et seq.). The petition alleged as reasons the following:
“1. The defendant is a person who. is suffering from a mental disorder and is not insane or feeble-minded, which mental disorder has existed for & period of not less than one year and is coupled with criminal propensities to the commission of sex offenses; and as such, is a criminal sexual psychopathic person;
“2. That the defendant is, at the present time, charged with the crime of rape and is now waiting for trial;
“3. That upon information and belief your petitioner avers that defendant has for several years past been suffering from the said' mental disorder, though not insane or feeble-minded, said disorder is coupled with criminal propensities to the commission of sex offenses, and as such, a criminal psychopathic person.”-
The court granted the -petition and appointed a psychiatric commission which filed a report of examination as follows:
“Your commissioners, Doctors Edward Pine and L. W. Wiren, have - examined the defendant, Shahan Artinian, both singly and collectively. They had available the examination findings of the recorder’s court psychopathic clinic. They found that the patient is neither psychiatric nor feebleminded. Under the provisions of Act No. 165, Pub. Acts 1939, the patient must be considered a criminal sexual psychopath. His behavior is compulsive in nature and he recognizes tha,t he has no control over the expression of his impulses. He has no insight into the causes of his deviated behavior.
“We recommend that in accordance with the provisions of Act No. 165 the patient be sent to an appropriate institution such as Ionia State Hospital for treatment and care. As he is now constituted he will continue to repeat this present offense.”
A hearing was held at which the only testimony introduced was that of two psychiatrists, who testified that they were the doctors appointed to the commission to examine defendant, that the report as filed embodied their findings, and that they found that defendant “is a criminal sexual psychopath within the meaning of Act No. 165, Pub. Acts 1939.” The court thereupon adjudged defendant to be a criminal sexual psychopathic person and, as pro vided in the act, ordered that he be committed to the custody of the State hospital commission.
Two years later defendant filed a motion to set aside the order of commitment and to discharge defendant because the petition filed by the prosecuting attorney failed to contain the factual showing required by the statute and because there was no evidence to support the adjudication of the court. From an order denying his motion defendant appeals.
Under Act No. 165, Pub. Acts 1939, the entire proceedings leading to a determination of criminal sexual psychopathy is initiated by and made dependent upon the filing of “a statement in loriting setting forth facts tending to show that such person is a criminal sexual psychopathic person.” The petition filed in this case alleges that defendant is a criminal sexual psychopathic person as defined in the statute, but this is supported by no allegations of a factual nature tending to show the correctness of the conclusion. Section 7 of Act No. 165 provides for the filing of a petition for the discharge of a person committed under the act upon his recovery from such psychopathy. That petition is required to be “in writing setting forth facts showing such recovery.” Concerning such a petition, we said in the case of In re Kemmerer, 309 Mich. 313, the following:
“Subsequent to his commitment, petitioner filed a petition for discharge, requested a hearing thereon in the lower court and filed a demand for a jury trial. The return of the trial judge of the recorder’s court shows that the petitioner presented no factual basis in this petition showing recovery as required by Act No. 165, § 7, Pub. Acts 1939, the act under which petitioner is committed. The act does provide for jury trial but a petition for discharge first must contain a factual showing which, if proven to .be correct, would result in a discharge. We have examined the petition and find that there is no such factual showing therein. The judge was correct in denying it.”
While the petition filed in the instant case states conclusions as to defendant’s condition, it fails to “contain a factual showing which, if proven to be correct, would result in” commitment of defendant as a criminal sexual psychopath. For reasons stated in the Kemmerer Case, this petition must be held to be fatally defective and, in consequence, the subsequent proceedings invalid.
The adjudication that defendant is a criminal sexual psychopath is based on the doctors’ report, containing no factual basis therefor, and on no further‘testimony than that of the doctors to the effect that they did so determine. Thus was the judgment of the doctors substituted for that of the court. Up to the moment defendant was ordered committed neither he nor the court had been apprised, either by the petition, the doctors’ report or by one word of testimony, as to the facts upon which it was determined that he should be so committed. He could not defend against that of which he was not apprised. Defendant was deprived of the hearing to which he was entitled under the act.
The order denying defendant’s motion to set aside the order of commitment and the order determining-defendant to be a criminal sexual psychopathic person and committing him to the custody of the State hospital commission are reversed and set aside and defendant discharged accordingly, without prejudice to the people’s right to bring such further proceedings as circumstances may require.
Bushnell, C. J., and Sharpe, Boyles, Reid, North, Btjtzel, and Carr, JJ., concurred.
See section 3. — Reporter. | [
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McGregor, P. J.
These two arson cases require us to consider once again the constitutional validity of warrantless searches conducted by state fire officials.
The defendants were convicted by a jury of conspiring to burn real property in violation of MCLA 750.157a; MSA 28.354(1). Defendant Tyler was additionally convicted of burning real property, MCLA 750.73; MSA 28.268, and burning insured property with intent to defraud, MCLA 750.75; MSA 28.270. Defendant Tompkins was sentenced to 1-1/2 to 10 years in prison and Tyler was sentenced to 1-1/2 to 10 years for each crime, sentences to run concurrently. The offenses were alleged to have occurred on January 21, 1970.
The crucial and dispositive issue on appeal is whether certain evidence was improperly admitted at trial, such evidence having been allegedly obtained by an illegal search and seizure.
Prior to this Court’s decision in People v Dajnowicz, 43 Mich App 465; 204 NW2d 281 (1972), defendants’ constitutional assault on the legality of the instant search and seizure would have had little precedential support and been of doubtful merit, in light of past Michigan decisions. However, with the advent of Dajnowicz, the issue has acquired a vitality and jurisprudential significance which demands our most careful and thorough consideration.
Our review of the transcript reveals the following pertinent facts concerning the acquisition of the evidence in question.
Between 2 and 2:30 a. m. on January 22, 1970, Chief See of the local fire department arrived at the scene of the fire and conversed with Lieutenant Lawson of the fire department. Although the blaze had been substantially extinguished, fire department equipment was still on the scene and firemen were watering the embers. See and Lawson entered the building through an open door and noted two containers on the floor, one partially filled with gasoline. After spending approximately one hour in the building, during which time Chief See noted the smell of gasoline, he called Detective Webb of the police department; Webb arrived at the scene at approximately 3:30 a. m. Detective Webb attempted to photograph the interior of the building but was unsuccessful due to the malfunctioning of his camera and the fact that the building was still filled with steam as a result of the firefighting activities. The two men spent approximately 1/2 hours in the building, when Webb left for the fire station, where he was later joined by See, who brought with him the containers. See and Webb then went to the police station, where the containers and the gasoline were stored. This evidence was admitted at trial, over defendants’ Fourth Amendment objections.
Shortly after 8 a. m., January 22, 1970, Assistant Chief Sommerville of the fire department arrived at the scene of the fire with Chief See. Sommerville and See made a cursory examination of the interior of the building which had been almost entirely consumed by the fire. Sommerville then transported See back to the fire station, picked up Detective Webb, and returned to the scene of the fire, arriving between 9 and 9:30 a. m. Further investigation by Sommerville disclosed a linear burn in the carpeting of one room, approximately equal in width to the diameter of a pencil; this burn circled through the room, through a doorway and down a flight of stairs to an exit. On the stairway, pieces of tape were found near the burn mark. Sommerville and Webb left the scene and returned with the tools necessary to remove pieces of carpeting and wood which contained the burn marks. These items were seized between 10 and 11 a. m. on the day of the fire, and were admitted into evidence at trial over defendants’ objections. In addition, certain photographs taken by Detective Webb were admitted.
Detective Sergeant Hoffman, from the arson investigation section of the Michigan State Police, took additional pictures of the premises on January 26, 1970; this film was lost in the mail when it was sent to Lansing to be developed. As a result, Hoffman rephotographed the scene on February 16, 1970; these photographs were later transposed to slides and were shown to the jury at trial, without objection. Certain additional evidence gathered by Detective Hoffman on February 16, 1970, gave rise to Fourth Amendment objections; this physical evidence included a piece of fuse found in the building and pieces of glass and other debris. Detective Hoffman testified that this addi tional physical evidence indicated that the fire had been precipitated by gasoline explosions. This evidence was admitted over objections of defense counsel.
No search warrant was issued in connection with the above investigation. Consent for the numerous searches was never obtained from defendant Tyler, the lessee of the building.
It appears that defendant Tyler had purchased the incorporated furniture businesses, conducted in the building, from one Maynard LaLonde, who leased the building to Tyler on a month-to-month basis. It is conceded that consent had been obtained from Mr. LaLonde for at least a portion of the investigation.
The dispositive issue on these appeals is whether the evidence obtained by fire and police officers from the burned premises without a search warrant was improperly admitted at trial over defendants’ objection that it was the product of an unlawful search and seizure. Simply put, do the provisions of US Const, Am IV, and Const 1963, art 1, § 11, apply to the investigation of burned premises to determine whether the fire was the result of arson where some evidence of arson is found during the process of extinguishing the fire? Our negative answer is given with full recognition that it is contrary to People v Dajnowicz, 43 Mich App 465; 204 NW2d 281 (1972), but in accord with People v Bailey, 42 Mich App 359; 202 NW2d 557 (1972).
We reject the reasoning and the result reached in Dajnowicz for several reasons, the first of which is that the precedent relied on is Camara v Municipal Court, 387 US 523; 87 S Ct 1727; 18 L Ed 2d 930 (1967), which we find inapplicable to arson investigation cases.
Camara refused to permit the warrantless inspection of his residence in violation of the housing code. This was a crime under the code, and Camara was so charged. He sought a writ of prohibition in the state court to prevent prosecution on the basis that the ordinance authorizing the inspection was unconstitutional. The state courts denied the writ. The Supreme Court reversed, holding that Camara had a constitutional right to insist that the inspectors obtain a search warrant and that he could not be constitutionally convicted for refusing to consent to that inspection.
The principle of Camara was extended to places of business by See v Seattle, 387 US 541; 87 S Ct 1737; 18 L Ed 2d 943 (1967).
The Dajnowicz Court recognized that Camara dealt with administrative investigations but went on to hold that Camara applied to criminal investigations as well, and said:
"It seems obvious to this Court that if a warrant is required in instances where there is an administrative inspection, a warrant is even more necessary where a person is under criminal investigation.” Dajnowicz, supra, 470-471; 204 NW2d 284.
The fallacy in the language quoted is that the investigation of a fire to determine if arson has been committed does not place a person under criminal investigation. It places the cause of the fire under investigation.
To buttress its holding that Camara applied to criminal investigations, the Dajnowicz Court cited State v Buxton, 238 Ind 93; 148 NE2d 547 (1958), a case we find to be inapposite. In Buxton, the initial investigation a few days after the fire disclosed no evidence of arson. Subsequent investigation with out a warrant was held to be an unreasonable search.
Secondly, state policy as legislatively established by MCLA 29.6; MSA 4.559(6) authorizes investigation of the cause and origin of fires and provides for entry of the premises without restraint. A similar statute was upheld in State v Murdock, — Mont —; 500 P2d 387 (1972).
Thirdly, as stated in Bailey, supra, the purpose of the Fourth Amendment is to safeguard privacy and security of individuals against arbitrary invasions by government officials. The privacy and security of defendants were not disturbed by the investigations involved nor were the investigations arbitrary invasions.
Fourthly, the proscription of US Const, Am IV, and Mich Const 1963, art 1, § 11, is against "unreasonable” searches and seizures. During the extinguishing of the fire, two containers were found, one partially filled with liquid, and the smell of gasoline was noted.’ With this knowledge, further investigation, search and seizure were not only reasonable, they were mandated.
On the basis of this analysis of the Fourth Amendment issue involved, we conclude that the trial court did not err in admitting the evidence in question.
We have carefully examined defendants’ remaining contentions. None require or justify reversal and all are of insufficient precedential significance to warrant extended discussion here.
Affirmed.
All concurred.
See People v Chimovitz, 237 Mich 247, 250; 211 NW 650, 651 (1927), and People v Bailey, 42 Mich App 359; 202 NW2d 557 (1972).
The statute provides: "The commissioner or any officer is authorized to investigate and inquire into the cause or origin of any fire occurring in this state resulting in loss of life or damage to property, and for such purpose may enter, without restraint or liability for trespass, any building or premises and inspect the same and the contents and occupancies thereof.” | [
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O’Hara, J.
This is an appeal of right from defendant’s jury conviction of second-degree murder. MCLA 750.317; MSA 28.549.
The record indicates that defendant, immediately after killing his spouse, went to the police station and told desk officer Joseph Raleigh that he had stabbed his wife and to have someone check on her at their home. During the course of his conversation with the defendant, Officer Raleigh took notes in longhand and within 15 to 20 minutes typed a departmental report from the notes. Pursuant to the then practice, he discarded his original notes. The officer stated at trial that he had no present independent recollection of what defendant told him. The report was introduced as past recollection recorded. Defense counsel objected to the absence of the original notes. The argument is made on appeal that introduction of the report without the officer’s fragmentary memorandum denied defendant the opportunity of "meaningful” cross-examination and was reversibly erroneous. People v Rosborough, 387 Mich 183; 195 NW2d 255 (1972).
At the outset we hold that defendant’s reliance on Rosborough is ill-founded since that case is readily distinguishable on the facts from the case at bar. Rosborough involved a complex gambling conspiracy wherein the police necessarily made extensive surveillances over an extended period of time. The officers made fragmentary notes with respect to their observations. At the end of each day, they prepared a formal report based upon their notes and their recollection of the day’s events. While the Supreme Court held it error to admit the reports as past recollection recorded in the absence of the fragmentary notes, the opinion of Justice Adams is principally concerned with possible discrepancies which might exist between the two sets of memoranda and the difficulty confronting a defendant who might wish to challenge the reports’ accuracy without the availability of the original writings (particularly in view of the fact that the officers likely would have little actual recall of the countless observations at a point much later in time).
In the present case, the situation is far different. Here the report does not involve a synopsis of the protracted surveillances or the results of detailed observations over a period of time. Significantly, the officer reduced his notes to a simple one page typewritten form within minutes of his conversation with the defendant. These considerations and the officer’s statement that the contents of his report were true to the best of his knowledge tend to establish that the report accurately stated the substance of defendant’s conversation with the police officer. Hence, we hold that defendant was not denied an opportunity to adequately cross-examine the officer as to the circumstances surrounding preparation of the report.
But assuming that distinguishing the cases factually were to be rejected by the Supreme Court should further appeal take place, we think the desk officer could hardly be expected to anticipate Rosborough adopting a rule contrary to that already established and followed in cases such as People v Hobson, 369 Mich 189; 119 NW2d 581 (1963), and People v Gorka, 381 Mich 515; 164 NW2d 30 (1969).
It is presumably this reliance factor on the prior rule by those in the field of law enforcement that underlies the refusal of the Supreme Court to give Rosborough retroactive application. For helpful annotations and case authority dealing with the troublesome issue of whether decisions announcing new rules will be given retroactive effect see inter alia: 22 L Ed 2d 821; 10 ALR3d 1371; People v Whisenant, 384 Mich 693; 187 NW2d 229 (1971); Desist v United States, 394 US 244; 89 S Ct 1030; 22 L Ed 2d 248 (1969), reh den, 395 US 931; 89 S Ct 1766; 23 L Ed 2d 251 (1969).
Defendant next claims that the people did not establish an adequate chain of custody prior to the admission of certain clothing worn by the accused when he went to the police station and reported the stabbing of his spouse.
The issue was not preserved for appellate review. As soon as the clothing was shown to the police witness, defense counsel objected to "the witness testifying in regard to the clothing”. Since the prosecutor had the right to introduce the proposed exhibits to rebut defense theories of self-defense and insanity and had not yet had the opportunity to provide the foundation, the trial judge properly overruled the objection at that time. After the witness identified the clothing, defendant chose not to question the witness to elicit facts which might have supported the earlier general objection. Under these circumstances we find no reversible error.
Defendant next takes exception to the introduction of several black and white photographs depicting the victim and the disarray of the room where the body was found. On appeal, he argues that the photographs were not material or were at least cumulative. He also contends that the pictures were of an inflammatory character and this characteristic outweighed their probative value and hence they should not have been admitted.
The test is defined by the Supreme Court in recently released People v Falkner, 389 Mich 682, 685; 209 NW2d 193, 194 (1973).
"Recalling our discussion in People v Eddington, 387 Mich 551, 562-563; 198 NW2d 297 (1972), we must determine whether these photographs were 'substantially necessary or instructive to show- material facts or conditions,’ or merely 'calculated to excite passion and prejudice.’ ”
Some of the exhibits are photographs of the deceased taken at the hospital depicting chest wounds; two other exhibits were taken at the mortuary showing wounds to the deceased’s back; and finally several exhibits are photographs of the body showing its position in the room where the stabbing took place. The room was in shambles suggesting a violent struggle.
Based upon our review of the applicable case law and a careful examination of the photographs we are led to this three-fold conclusion.
(1) The photographs were a chain in the link of evidence by which the people sought to illustrate the number, nature, and severity of the wounds as this evidence bore on the claim of self-defense.
(2) The trial judge properly exercised his discretion to impose reasonable limitations on the number of photographs so that the photos were not merely cumulative as to matters which were already adequately established by other evidence.
(3) The fact that the photos were not particularly pleasant did not render them so gruesome or prejudicial as to outweigh their substantial probative value.
Falkner, supra, was a four to three decision by the Supreme Court as to the admissibility of the pictures in that case. The question of probative evidentiary value versus a claim that the photos offered were "merely calculated to excite passion and prejudice” is highly subjective and necessarily difficult of application. It calls for an evaluation of prosecutorial motive. We have read the record with extreme care in light of Falkner. It seems to us that they bore heavily on the visceral issue of the circumstances under which the stabbing took place as those circumstances were related to the claim of self-defense. Hence, we cannot assess them as irrelevant. Given their relevance the trial judge limited the number admitted thus negativing the claim they were cumulative only. We have attempted here to apply the Falkner majority test to the best of our ability and we conclude the photographs did not offend against it.
As his final assignment of error defendant asserts that the prosecution did not meet its burden of proving defendant sane beyond a reasonable doubt at the time of the homicide.
The defendant brought forth testimony of two witnesses, a social worker and a licensed general physician, who had both recommended appellant seek psychiatric help. The social worker did not testify whether defendant knew right from wrong or was motivated by an irresistible impulse. The physician, who was not a psychiatrist, explicitly testified that in his opinion the defendant did know right from wrong when he saw him professionally. He would not undertake to answer whether defendant could have made this distinction on the date of the killing. There also was the opinion evidence of defendant’s mother-in-law that he seemed normal on the day prior to the homicide. A sufficient foundation was laid for this opinion testimony. See the opinion of now Chief Justice Kavanagh in People v Cole, 382 Mich 695; 172 NW2d 354 (1969). Additionally, defendant took the stand and testified as to the facts surrounding the demise of his wife. The jury was entitled to draw reasonable inferences as to the sanity test from this testimony.
It is axiomatic that a jury may reject expert as well as nonexpert opinion testimony tending to prove a defendant’s sanity or insanity. Considering all the facts the jury in this case could conclude he was sane beyond a reasonable doubt. The quantum of proof of sanity was based upon sufficient testimony which if believed by the jury would sustain the burden of proof on this issue beyond a reasonable doubt.
Affirmed.
All concurred. | [
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Per Curiam.
On February 22, 1971, pláintiff filed in the Wayne County Circuit Court a complaint against defendant in two counts. Count 1 alleged the following: In violation of MCLA 451.810; MSA 19.776(410) and while defendant was not a registered broker-dealer or agent in securities, defendant on August 27, 1969 delivered to plaintiff 6,250 shares of stock in Quixonic, Inc., for which plaintiff paid defendant $50,000 cash, and that on September 30, 1969 defendant similarly delivered to plaintiff 10,000 shares of Dynatron, Inc., for which plaintiff paid $50,000. Count 2 of the complaint alleged fraud on the part of defendant in the following particulars: Defendant approached plaintiff in August or September of 1968 telling plaintiff that defendant owned stock in the above-named corporations; that defendant would sell this stock to plaintiff; that defendant represented to plaintiff that defendant had superior knowledge regarding the two corporations and that they would soon "go public”; that the Quixonic stock would then have a market value of $18 or $20 per share by March or April of 1969; that the Dynatron stock would have a market value of $100 per share shortly after purchase; that defendant made these representations knowing them to be false and fraudulent. Plaintiff alleged further in Count 2 that defendant failed to deliver the shares of Quixonic until August 27, 1969, and the shares of Dynatron until September 30, 1969; that defendant delivered said shares knowing them to be worthless; that defendant promised to repay $100,-000 to plaintiff at the rate of $5,000 per month, but that, after one such payment on November 5, 1969, there were no more payments. Plaintiff alleged damages in Count 2 of $95,000.
Plaintiffs Count 1 was dismissed upon defendant’s motion for accelerated judgment based on the two-year statute of limitations in MCLA 451.810; MSA 19.776(410), the court having found that the contract of sale was made not later than December, 1968. A pretrial statement was filed by defendant in February, 1972 and adopted by plaintiff at the pretrial conference on March 24, 1972.
The parties went to trial before a jury on Count 2 of plaintiffs complaint. Defendant’s motions for a directed verdict at the close of plaintiffs opening statement and at the close of plaintiffs proofs were denied. On July 5, 1972, the jury returned a verdict in the amount of $60,000 in favor of plaintiff. Defendant’s motions for a new trial and judgment notwithstanding the verdict were denied. Defendant appeals.
Defendant claims that the trial court erred in allowing plaintiff to introduce over objection a new cause of action in his opening statement and to elicit testimony regarding the same throughout trial. We agree.
The summary of the results of the pretrial conference reveals that both parties were in agreement as to the issues framed in Count 2 of plaintiffs complaint. Therein, the parties narrowed the scope of defendant’s alleged misrepresentations, to the following:
"Count II is a claim for money damages in the amount of $95,000.00 plus interest, court costs and attorney fees. It is based, as is Count I, on the sale of certain shares of stock which occurred in November and December of 1968 for the sum of approximately $100,000.00 Plaintiff further alleges that these misrepresentations consist of the following: 1. Stock in question would go "public soon”; (a) That the Quixonic stock would have a value of $18.00 or $20.00 by March or April of 1969; (b) That the Dynatron stock would have a value of $100.00 shortly after purchase of the same; 2. That Defendant knew these statements were false and fraudulent and that Plaintiff would rely on the same.”
Plaintiffs opening statement was however devoted almost entirely to defendant’s late delivery of the promised certificates and to plaintiffs resulting inability to sell at a profit. We quote from the record:
“And what Joseph Zahar did promise my client is that he would give him some stock certificates as soon as he was able to transfer the stock certificates that he had from his possession into my client’s name. He said it would take six to eight weeks. This my client believed in. For this my client gave Joseph Zahar $100,000, believing that he would get the stock certificates within the period of time that it would take to effect a transfer through the bank register.
"The allotted time came, the allotted time went. My client tried to get a hold of Joseph Zahar. Joseph Zahar "ain’t” talking, "ain’t” available, "ain’t” around, "ain’t” nowhere. He has the $100,000, and try and find him.
"My client will testify that he even got ahold of Tony Simon and said, 'Tony, get ahold of Joe. Where are my stock certificates?’ And Tony will tell you about his conversation with Joseph Zahar.
"In the meantime this Dynatron stock went up. Had my client had these stock certificates, he could have sold at a profit. Had he paid $5 a share (I think it went up to nine) — so actually had he had these stock certificates, he could have made $40,000 just on this stock alone.
"Time went, time went, time went, and not way until August or September — August the 7th is the date on this one, the following year and September 30 of the following year on this one (indicating documents) and then subsequent to that time was the stock delivered to my client. By that time the stock was worthless. In fact, this $15,000 in Quixonic, spelled “Q-u-i-x-o-n-i-c” never went through any bank.
* * *
"Mr. Kranson (continuing): My client has given the defendant $100,000, and what we are saying is that had we had these stock certificates in our possession when we should have had delivery, we would not be here in court today.”
Absent any allegation that defendant promised delivery of the certificates at a certain time while knowing that delivery would not be made, plaintiff was proceeding on a contract theory rather than fraud. Moreover, plaintiffs statement to the effect that, if the certificates had been delivered as promised plaintiff would have made $40,000, is inconsistent with his claim of fraudulent misrepresentation of value.
The elements of actionable fraud were set forth in Papin v Demski, 17 Mich App 151, 154; 169 NW2d 351, 353 (1969):
"Initially, the burden of proof in this case, as always, was on the plaintiffs. It was essential to their cause of action based on fraud that certain facts be established. Our Supreme Court in A & A Asphalt Paving Company v Pontiac Speedway, Inc (1961), 363 Mich 634, 639 [110 NW2d 601, 604], quoted with approval the following statement relative to the essential facts:
" 'The general rule is that to constitute actionable fraud it must appear: (1) that defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery.’ ” (Aff'd 383 Mich 561, 177 NW2d 166 [1970].)
An examination of the record reveals that plaintiffs numerous references to defendant’s failure to timely deliver were not confined to the opening statement, but became the object of testimony during the course of trial, and were again alluded to in plaintiffs closing argument. Defendant objected to plaintiffs opening statement and to the introduction of a new cause of action resulting in surprise. Although GCR 1963, 118.3 permits amendments to conform to proofs, nevertheless it does not permit a party to submit his case on an entirely different theory. Adair v Thoms, 5 Mich App 195; 146 NW2d 81 (1966); Denno v Providence Hospital, 19 Mich App 547; 172 NW2d 918 (1969). The pretrial summary controls the subsequent course of the proceedings, unless modified at or before trial to prevent manifest injustice. GCR 1963, 301.3. Where the parties at the pretrial conference have narrowed the issues over which they are in dispute to specific allegations of fraud, it was error for the court to allow plaintiff to also proceed on a contract theory.
Defendant further contends that the trial court erred in refusing a requested instruction which said in essence that, if the jury should determine that defendant made representations to plaintiff and that such representations were merely honest expressions of opinion made in good faith, they would not be fraudulent even if they later proved erroneous. Upon retrial, an instruction to that effect would be in order. While plaintiff claimed that defendant had deliberately misrepresented the future value of the Dynatron and Quixonic shares, it was the claim of defendant that he was communicating to plaintiff information that had been given to himi by others. Defendant further claimed that the failure of the shares to reach their expected value was due to intervening events over which he had no control, i.e., a cease and desist order preventing trading of the Dynatron shares and the breach by a Japanese corporation of a distributorship agreement with Quixonic.
In view of our disposition of this matter, the other issues raised by defendant need not be discussed.
Reversed and remanded for new trial. Costs to defendant. | [
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Per Curiam.
Phillip J. Nauman commenced this action against Security Bank & Trust Company, Peter G. Grate and another person to recover the value of six trailers. Nauman purchased these and other trailers from the Claxton Trailer Company of Claxton, Georgia. Claxton shipped the trailers directly to Grate, who subsequently sold them to customers who financed their purchases with the bank.
Grate failed to pay Nauman as agreed. Grate’s customers defaulted in their obligations to the bank. The bank foreclosed on the strength of security interests it obtained when it financed tibe purchases.
Nauman contends that because he retained legal title to the trailers, the sales by Grate to the customers transferred no title and, therefore, the bank by foreclosing wrongfully converted his property.
Early drafts of the Uniform Commercial Code provided that all consignments were security interests subject to Article 9 (Secured Transactions). This draft provision was deleted in favor of the present language.
Under the code if a consignment "is intended as security”, then the effect of the retained title of the consignor is limited to a reservation of a "security interest”. MCLA 440.1201(37), 440.9102(2); MSA 19.1201(37), 19.9102(2). A consignment not intended as security is subject to Article 2 (Sales), more specifically MCLA 440.2326(3); MSA 19.2326(3).
The critical language, "intended as security”, focuses on the intention of the parties. The draftsmen of the code offer little elaboration of this phrase. The official comment accompanying code § 9-102 (MCLA 440.9102; MSA 19.9102) states:
"Transactions in the form of consignments or leases are subject to this Article [Article 9, Secured Transactions] if the understanding of the parties or the effect of the arrangement shows that a security interest was intended.”
Various approaches have been suggested by text writers for determining when a consignment is intended as security. See 3 Bender’s Uniform Commercial Code Service, Sales & Bulk Transfers Under U.C.C., § 11.03, p 11-10; Hawkland, The Proposed Amendments to Article 9 of the UCC—Consignments and Equipment Leases, Commercial Law Journal 108 (April, 1972); Hawkland, Consignment Selling Under the Uniform Commercial Code, Commercial Law Journal 146 (June, 1962); White & Summers, Uniform Commercial Code, p 765.
We remand for the receipt of such additional evidence as the parties may wish to offer and fact-finding on the question whether "the arrangement shows that a security interest was intended”. Official Comment, supra; see, also, Mann v Clark Oil & Refining Corp, 302 F Supp 1376 (ED Mo, 1969), aff'd 425 F2d 736 (CA 8, 1970); In re De’Cor Wallcovering Studios, Inc, 8 UCCRS 59 (ED Wis, 1970); In the matter of Gross Manufacturing & Importing Co, Inc, 328 F Supp 905 (D NJ, 1971).
If Nauman’s purported retention of title is found to be limited to the reservation of a security interest, he cannot on that basis prevail against the bank. A security interest may be enforced against a third party only if the secured party retains possession of the collateral or if the debtor signs a security agreement describing the collateral. MCLA 440.9203(1); MSA 19.9203(1). Nauman did not retain possession of the collateral. Nor is there any evidence of the requisite writing.
If it is determined that the consignment was not intended as security, the questions whether Grate was "a merchant who deals in goods of that kind” and whether the purchasers were "buyers in ordinary course of business” within the meaning of MCLA 440.2403(2); MSA 19.2403(2) would become important. If either of those questions was answered negatively, Grate’s customers would not have obtained good title and, thus, could not have created in the bank a security interest. Nauman’s interest would then prevail. The record is silent on whether Grate’s purchasers were buyers in the ordinary course of business.
We anticipate no need to consider the provisions of MCLA 440.2326; MSA 19.2326. The controversy arose when the goods were no longer in Grate’s possession. Also, Nauman failed to comply with the provisions of any of the three subdivisions, (alíe), of MCLA 440.2326(3); MSA 19.2326(3).
Remanded for further proceedings consistent with this opinion. Costs to abide the event. We do not retain jurisdiction.
Successor by merger to the originally named defendant, First National Bank of Allen Park.
The record so far made shows the following:
Nauman knew that Claxton Trailer Company was trying to set up a dealership with Grate. He also knew that trailers had been shipped to Grate and that the sales were not completed because Grate refused to pay the accompanying sight drafts. At this point, the President of Claxton came to Detroit to resolve the situation. Nauman, a local stockholder of Claxton, met with him and agreed to purchase the trailers and park them on Grate’s used car and truck lot. ¿The arrangement was that, whenever Grate found a buyer, Nauman was to bring in the certificate of origin and endorse it over to the buyer. (Nauman was under the erroneous impression that Grate could not register title of a trailer without the certificate of origin.) The profits from each sale were to be split two-thirds to Grate and one-third to Nauman.
During the years 1964-1965 some 25 to 28 trailers were purchased by Nauman and placed on Grate’s lot for sale. In some instances transactions were closed as outlined above. Nauman testified that he generally went down to Grate’s lot about every 10 to 14 days to see how business was going.
Moreover, the bank, by virtue of advances made to debtors (Grate’s customers) to enable them to acquire rights in the collateral, acquired "purchase money security interest[s]”. MCLA 440.9107(b); MSA 19.9107(b). These security interests are enforceable against a third party (Nauman) because the debtors (the six customers), in compliance with MCLA 440.9203(1); MSA 19.9203(1), signed security agreements which describe the collateral. The bank filed its security interests as required' by MCLA 440.9302; MSA 19.9302 and, by so perfecting them within 10 days (MCLA 440.9303; MSA 19.9303), obtained priority over any conflicting security interests in the same collateral. MCLA 440.9312(4); MSA 19.9312(4). | [
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Bronson, P. J.
This is an appeal from a proceeding in eminent domain. The defendant-condemnee has raised an apparent conflict between certain procedures for instructing the jury in condemnation cases and GCR 1963, 514 which authorizes general or special verdicts.
The issue:
In a condemnation case, may a jury which was instructed to find and return a specific date of taking and the value of the property on that date, ignore the uncontroverted evidence of value for the property on the exact date so found and find a value within the range of all the evidence as to value?
The factual setting is not in dispute. Proceedings in eminent domain were instituted by the City of Detroit to acquire property for a development known as the Medical Center Rehabilitation Project. The jury was to determine the "date of taking” and just compensation. The question of necessity was not in issue.
The City of Detroit claimed a date of taking on the day of trial in 1971. The city appraisal on that date was $1,700. Bessie Barak, the condemnee, claimed a prior date in November of 1965. The only evidence of value as of this prior date was an appraisal of $18,200 made by the City of Detroit. The only remaining appraisal in evidence was $5,000 in 1967. This was again by the city’s expert witness. The condemnee introduced uncontroverted testimony showing a $3,687.38 net loss for out-of-pocket expenses incurred after the claimed date of taking.
The jury found the November date of taking claimed by the condemnee. The jury also found a general verdict as to value on this date of $10,335.
The relevant jury instructions were:
"[Y]ou may select that date of taking submitted by the respondent owners, or that date of taking submitted by the city on any parcel. Also, you may find a date of taking within the range of the evidence submitted to you.
♦ * *
"I further instruct you that in reaching a verdict you must keep within the range of the testimony submitted. You may take the lowest figure submitted to you or you may take the highest figure submitted to you on any particular parcel, or you may take any figure between these two extremes.
* * *
"On Parcel 370, owned by Mrs. Barak, the city seeks a present date of taking and the owners seek a date of November of 1965. You can find either of these dates or any date in between. The city seeks a fair market value of seventeen hundred dollars. The owner seeks a fair market value of eighteen thousand, two hundred dollars. You can award either of these sums or any sum in between.
* * *
"You should work out the mathematics of your awards on tablet paper and not on the verdict roll. The verdict roll should only reñect your date of taking, the sum to be paid and your signatures.
* * *
"And, a blank [on the verdict roll] in which you would insert the amount of compensation that is to be paid to the owner, and the date of taking.
* * *
"In those cases where you may find a prior date of taking, the owners of that property are entitled to interest from the prior date of taking to the time of the award. This is not an issue to be found by the jury. It is only a mathematical computation at the interest rate which is provided by law.”
The jury was thus instructed to find and return in writing both a special verdict as to date of taking and a general verdict as to value on that date. Neither party objected to these instructions. Am inconsistent verdict, the very evil GCR 1963, 514 was meant to avoid, was the result.
GCR 1963, 514 provides:
"The court may require the jury to return a special verdict in the form of a special written finding upon each issue of fact and in such cases no general verdict shall be returned. If a special verdict is to be required, the court shall, in advance of argument and in the absence of the jury, advise counsel of this fact and on the record or in writing settle the form of the verdict. In that event the court may submit to the jury Written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issue so omitted unless before the jury retires he demands its submission to the jury. As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict.” (Emphasis supplied.)
The condemnee contends that the jury should be instructed to find a date of taking and apply a value within the range of testimony in evidence for only that date found. The city contenda that the range of all testimony of value should be used regardless of the date found by the jury. Both are impossible. GCR 514 authorizes either a special verdict or a general verdict— not both.
If a verdict as to value is brought in then it must stand alone. It cannot be mixed with special questions such as the date of taking. Under proper instruction the jury can compute a final monetary figure, including interest to the date of trial, and render only a general verdict. If, as here, value is limited to uncontradicted evidence, then special questions submitted in accordance with GCR 514 procedures can be utilized in lieu of a general verdict as to value.
We turn now to resolution of the present controversy. By past practice where there was a conflict between special questions and a general verdict the general verdict had to yield. This is consistent with the present provisions of GCR 1963, 514 which dictate that where an issue is omitted and the court does not make a finding that the issue is "deemed to have [been] made * * * in accord with the judgment on the special verdict”. GCR 1963, 514.
The special verdict here was for the prior date of taking. The only value in evidence was $18,200. To this must be added net expenses and interest legally allowable. See Cassese, supra. The net expenses were $3,687.38.
The general verdict is set aside and the case is remanded for entry of a judgment for plaintiff consistent with this opinion and the special verdict of the jury. We do not retain jurisdiction.
Remanded.
All concurred.
See generally: In re Urban Renewal, Elmwood Park Project, 376 Mich 311; 136 NW2d 896 (1965). The parties were the City of Detroit and Joseph A. Cassese. The case is commonly known as and will be hereinafter cited as the Cassese case.
The proceedings were initiated by the appellee, City of Detroit, pursuant to the provisions of its charter, acting under MCLA 125.71 et seq.; MSA 5.3501 et seq., as amended.
The Authors’ Comments of Messrs. Honigman and Hawkins in 2 Michigan Court Rules Annotated (2d ed), p 503, relating to GCR 1963, 514 provide:
"The practice of general verdicts with special questions, as a matter of right, involved some difficulties which, apparently, the new rules sought to obviate. The most serious difficulty was that of possible discrepancy between the general verdict and the answers to special questions, which would necessitate a new trial. Rule 514 reflects an apparent assumption that the advantages of special questions can be preserved, without the hazards of inconsistency with a general verdict, by using special verdicts. See the opinion of Justice Talbot Smith in Sahr v Bierd (1958), 354 Mich 353; 92 NW2d 467.”
See: Hormel Estate v Harris, 348 Mich 201, 205; 82 NW2d 450, 453 (1957). | [
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V. J. Brennan, J.
Plaintiff brought this cause of action for injuries sustained as a result of his slip and fall upon premises owned by the defendant. On February 24, 1965, plaintiff was employed by the Federal government. On that day, in the course of his duties, he went to a milk processing plant operated by the defendant for the purpose of gathering milk samples. He arrived at the plant at approximately 10:30 a.m. He testified that at that time the weather was clear, and there was no ice accumulation or debris on the lot where plaintiff parked his automobile. The lot was unpaved with undulations due to the passage of truck traffic.
At approximately 8 p.m., plaintiff left the plant carrying the milk samples he had collected, and began traversing the parking lot to his automobile. It had snowed during the day, and the parking lot was unlit. Plaintiff slipped, fell, and sustained injuries. He testified that he slipped on a snow-covered flat object, although he never saw any such object. On cross-examination, he conceded that he may have merely slipped upon the ground. Plaintiff was the only witness who testified to this incident, or to the condition of the parking lot.
The jury returned a verdict for the plaintiff, and defendant now appeals. The defendant alleges that the trial court erred by denying his timely motions for directed verdict, and judgment notwithstanding the verdict. The parties have assumed, without argument here or below, that for purposes of this litigation the plaintiff should properly be classified as an "invitee”. While that assumption is probably correct we nevertheless shall proceed on that assumption without comment.
Since a customer is an "invitee” of a store owner, we may look to the abundance of Michigan case law dealing with a customer’s slip and fall in a place of business. In Carpenter v Herpolsheimer’s Co, 278 Mich 697, 698; 271 NW 575 (1937), our Supreme Court said:
"The proprietor is liable for injury resulting from an unsafe condition caused by the active negligence of himself and his employees, Wine v Newcomb, Endicott & Co, 203 Mich 445 [169 NW 832 (1918)]; and he is liable when the unsafe condition, otherwise caused, is known to the storekeeper or is of such a character or has existed a sufficient length of time that he should have knowledge of it. Yarington v Huck, 218 Mich 100 [187 NW 298 (1922)].”
The plaintiff’s theory of the case was that he had slipped upon an unknown object, and that that object had been in the parking lot long enough to become snow covered. There was no testimony that an agent or employee of the defendant was responsible for the presence of the hypothetical object on the parking lot. Plaintiff’s theory was that since the object was present long enough to become snow covered, it was present long enough for defendant’s failure to discover and remove it to constitute negligence.
In most cases of a similar nature which have reached appellate courts in this state, there has been no question regarding what caused the plaintiff’s fall. The question has generally been one of the duration of the offending condition. See e.g. Winfrey v S S Kresge Co, 6 Mich App 504; 149 NW2d 470 (1967); Serinto v Borman Food Stores, 3 Mich App 183; 142 NW2d 32 (1966), aff'd, 380 Mich 637; 158 NW2d 485 (1968); Galloway v Sears, Roebuck and Co, 27 Mich App 348; 183 NW2d 354 (1970); Filipowicz v S S Kresge Co, 281 Mich 90; 274 NW 721 (1937); Goldsmith v Cody, 351 Mich 380; 88 NW2d 268 (1958); Evans vSS Kresge Co (On Rehearing), 290 Mich 698, 703; 291 NW 191 (1939). However, in certain cases which are similar to those enumerated above in that the cause of plaintiff’s fall was ascertainable, the Supreme Court has nevertheless denied relief to plaintiffs where they have failed to demonstrate that the condition causing their fall was sufficiently different from the surrounding area to constitute a dangerous condition. In Yearsley v City Bank, 361 Mich 574, 576; 106 NW2d 162, 163 (1960), the Court upheld the trial court’s grant of a directed verdict in defendant’s favor where the
" * * * plaintiff showed no unusual condition of the construction or surface of the floor in the area of her fall; also that she showed no variation of surface conditions as between such area and othér portions of the public quarters of the bank over which she had walked and others were walking.”
For similar results, see Zeglowski v Polish Army Veterans Association of Michigan, Inc, 363 Mich 583; 110 NW2d 578 (1961), and Nash v Lewis, 352 Mich 488; 90 NW2d 480 (1958).
Likewise, in the case before us, the plaintiff has failed to adduce sufficient evidence of a "dangerous” condition to justify submission of the case to the jury. The best that can be said for the plaintiffs evidence is that there might have been something under the snow. As the plaintiff admitted, there may well have been nothing under the snow whatsoever.
"It is a well-settled principle that on review of a trial court’s refusal to grant a motion for a directed verdict or judgment non obstante veredicto, the facts are reviewed in the light most favorable to plaintiff. Tacie v White Motor Co, 368 Mich 521, 527 [118 NW2d 479, 482 (1962)]. A test used is whether from the facts in the light most favorable to plaintiff, reasonable men could honestly reach a different conclusion. If the answer to this is 'yes,’ the question is for the jury. Ashworth v Detroit, 293 Mich 397 [292 NW 345 (1940)].” Anderson v Gene Deming Motor Sales, Inc, 371 Mich 223, 229; 123 NW2d 768, 771 (1963).
The circumstances of this case when viewed in accordance with the above standard fail to raise a jury question. A jury verdict on behalf of the plaintiff would necessarily be an inference based upon the speculation of the plaintiff. We therefore conclude that the trial court erred by failing to grant either defendant’s motion for directed verdict, or judgment notwithstanding the verdict.
Reversed and remanded for proceedings consistent with this opinion.
Walsh, J., concurred.
See Prosser, Law of Torts (3d ed), pp 405-408. | [
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Adams, J.
This is an appeal from a decision by the Court of Claims. The opinion of Circuit Judge Leo W. Corkin, sitting in the Court of Claims, reads as follows:
"Plaintiff in this action seeks a judgment determining that the application of the statutory formula for computing franchise fees does not fairly represent the extent of its business activities within the State of Michigan and that adjustments should be made under the statutory provision of MCLA 450.305e; MSA 21.208(5), and also for a judgment against defendant in the amount of $39,858.25, plus interest, for claimed excess franchise fees paid under protest. The matter was submitted to the court on stipulated facts and this serves as a basis for the court’s findings.
"International Telephone and Telegraph Corporation, hereinafter referred to as TTP, is a Delaware corporation with its principal place of business in the City of New York, N. Y., and is the successor of ITT, a Maryland corporation and Delitt Corporation, a Delaware corporation. On July 19, 1965, ITT’s predecessors were duly qualified and admitted to do business in the State of Michigan and the successor corporation, ITT, is now duly qualified and admitted to do business in Michigan.
"The franchise fees, computed and paid during the years 1966, 1967 and 1968, are measured by the financial condition of ITT as it existed on December 31, 1965, 1966 and 1967, respectively, which years are hereinafter referred to as 'annual report years 1966, 1967 and 1968.’
"At the time of filing its annual report for 1966, ITT computed and paid a franchise fee in the sum of $1,252.35. The computation of the fee was according to the statutory formula. However, ITT’s intangibles, reflecting ITT’s investment at cost in its subsidiaries, in the sum of $466,463,577.00, was subtracted from the fee base. The State of Michigan and Department of Treasury, defendants herein, hereinafter referred to as the 'State’, subsequently reassessed the franchise fee in the sum of $14,082.43. The State’s assessment was based upon computations made according to the mathematical formula set forth in the statute; MCLA 450.305; MSA 21.208. However, it included the investment, at cost, in the subsidiaries in the fee base.
"ITT subsequently submitted an amended return on a revised basis for computation of its franchise fee and in computing the fee included in both the fee base and in the denominator of the property factor of the apportionment formula the investment at cost in its subsidiaries. In addition, the wage factor was divided by three, i.e., it was weighed by one-third (1/3), and the sales factor reflected intrastate sales (sales from Michigan sources to Michigan destinations) as well as sales from Michi gan (sales generated from the Michigan sales office). With the exceptions in the apportionment formula in regard to the property, wage and sales factors, ITT’s computation was according to the method utilized by the State. The revised franchise fee amounted to $3,519.30.
"The State rejected ITT’s revised computation. ITT subsequently paid the difference under protest in the sum of $13,821.08, plus interest in the sum of $924.20.
"At the time of filing its annual report for 1967, ITT computed and paid a franchise fee based upon the same method of computation described above, i.e., it made adjustments in the property, wage and sales factors of the apportionment formula. The sum paid by ITT was $3,335.37. If computation of the 1967 franchise fee by ITT had been in accordance with its original method submitted on its initial 1966 annual report, as indicated above, wherein the sole adjustment was the exclusion from the fee base of its investment at cost in its subsidiaries, this would have resulted in a fee of $1,538.44.
"Subsequently, the State of Michigan assessed a fee based upon statutory construction as for 1966 in the sum of $14,035.07, plus interest of $401.24. ITT paid the difference of $10,699.70 under protest together with interest in the sum of $401.24.
"At the time of filing its annual report for 1968, ITT computed and paid a franchise fee based upon the same method of computation as for 1967, Le., it made adjustments in the property, wage and sales factors of the apportionment formula. The sum paid by ITT was $4,764.67. If computation of the 1968 franchise fee by ITT had been in accordance with its original method submitted in its initial 1966 annual report, wherein the sole adjustment was the exclusion from the fee base of its investment at cost in its subsidiaries, this would have resulted in a fee of $6,993.91.
"Subsequently, the State of Michigan assessed a higher fee, based upon statutory construction, in the sum of $20,922.90. ITT paid the difference under protest together with interest in the sum of $807.91.
"ITT’s' assets consist of two general categories: real
and personal properties utilized for the manufacturing and marketing of various products and product lines; and intangible personal property consisting of investment at cost in various corporations, substantially all of which are wholly owned subsidiary corporations. For annual report years 1966, 1967 and 1968, ITT’s interest in its subsidiaries carried at investment cost, was as follows:
1966 $466,463,577
1967 $498,270,930
1968 $483,225,979
"The certificates of stock ownership and the bonds, notes and debentures of ITT representing investments in subsidiary corporations in its investment portfolio during the years in question, were located at its home office in New York, N. Y.
"In addition to ITT, the parent corporation, the following subsidiaries of ITT have been admitted and were doing business in Michigan for the annual report years 1966, 1967 and 1968, and paid the following franchise fees during those years:
"Corporation Subsidiaries 1966 1967 1968
"Federal Electric Corporation $ 10 $ 10 $ 12
"Avis Rent-A-Car Systems, Inc. 3,889 5,366 5,389
"International Telephone and Telegraph Credit Corp. 1,266 1,109 902
"ITT Consumer Services — 2,130 564
«ITT Systems Constructors Corp. 10 10 —
«ITT Terryphone Corporation 213 244 210
"Kellogg Credit Corporation 45 40 72
"Systems Installations, Inc. 10 10 12
"ITT Abrasive Products — 3,446 3,728
"Hamilton Management Corp. 33 85 103
"Totals $5,476 $12,450 $10,992
"(Dashes indicate that the corporation was not admitted or doing business in the State during that year.)
"Of the corporate subsidiaries listed in paragraph above, ITT Abrasive Products is incorporated and has its principal place of business in Michigan.
"ITT’s business activities consist of two separate functions:
"(a) ITT manufactures and sells telephone, radio, electronic, and various industrial products such as pumps and controls and related equipment and services through approximately thirty-eight divisions. These divisions are not separate corporations but are organizations within ITT created to carry out various functions with regard to a product or line of products.
"(b) ITT is a holding company for numerous subsidiaries located throughout the world to which it provides management advisory services from headquarters in New York, these services include: Legal, financial, tax, business planning, engineering, and research and development. These subsidiaries are engaged in business in widely diverse fields including automobile rentals, hotel operation, home construction and other consumer services; food processing and services; insurance and other business and financial services; defense and space programs; natural resources; education and publishing; manufacturing of consumer and industrial products such as telecommunications equipment; and operation of telephone companies. The operations of these subsidiaries are not integrated with the manufacturing and sales activities of the ITT parent corporation as set forth in subparagraph (a) above.
"For the years 1966, 1967 and 1968 ITT had dividend income from investments in subsidiaries and proceeds from the sales of investments in subsidiaries which under generally accepted accounting principles are treated as part of general working capital.
"During annual report years 1966, 1967 and 1968, divisional activities of ITT, the parent corporation, in this State were restricted to those expressly enumerated in the following paragraphs:
"ITT Nesbitt of Philadelphia, Pa., a manufacturer of water heaters and air conditioners, carried on sáles activities within the State. ITT Nesbitt did not carry on any manufacturing activities, maintained no inventory and owned no real estate within the State. Tangible personal property consisted of office equipment. ITT Nesbitt employed a six-man sales staff during the years in question.
"ITT Marlow of Midland Park, N.J., and Longview, Texas, a manufacturer of water, irrigation, sewage and swimming pool pumps, had one employee in the State of Michigan engaged in sales activities. It carried on no manufacturing activities within the State, maintained no inventory and owned no real or tangible personal property within the State.
"ITT Wire and Cable-Royal of Pawtucket, R.I., a manufacturer of wire and cable, maintained an inventory in the State. ITT Wire & Cable-Royal carried on no manufacturing or sales activities within the State and owned no real or tangible personal property other than inventory. The inventory is housed in a public warehouse in Detroit.
«ITT & Gossett, of Martin Grove, Illinois, a manufacturer of pumps, motors and compressors, carried on sales activities within the State. ITT Bell & Gossett carried on no manufacturing activities, maintained no inventory and owned no real or tangible personal property within the State. ITT Bell & Gossett employed one person within the State in a sales position. ITT Bell & Gossett withdrew from the State during 1965 (annual report year 1966).
"ITT Cannon Electric of Los Angeles, California, a manufacturer of electrical connectors and related wiring devices carried on sales activities within the State with one employee. ITT Cannon Electric carried on no manufacturing activities, maintained no inventories, and owned no real or tangible personal property within the State. ITT Cannon Electric withdrew from the State during 1965 (annual report year 1966).
"ITT General Controls of Glendale, California, a manufacturer of automatic controls, carried on sales activities within the State with one employee. ITT General Controls carried on no manufacturing activities, maintained no inventories and owned no real or tangible personal property within the State. ITT Cannon Electric withdrew from the State during 1965 (annual report year 1966).
"ITT reported the following facts for purposes of apportionment. ITT through its divisions, had activities in Michigan as set forth in subparagraph (a) below. ITT through its divisions had activities everywhere as set forth in subparagraph (b) below.
"In ITT’s view it represents a new concept in corporate organization claiming to have two distinguishable entities. One entity is a holding company that does not carry on specific marketing, manufacturing or other operational activities, but rather, holds capital stocks, bonds and notes in subsidiaries and performs certain management functions for them. The other entity consists of operating divisions which carry on all phases of business activity, including management, manufacturing, sales and other operational activities.
"It is no doubt true that in light of the large and diverse activities of ITT’s divisions and subsidiaries throughout the U.S. and foreign countries, its business activities in Michigan are minimal. Also, several of ITT’s subsidiaries of the holding company entity are qualified to do business in Michigan and paid franchise fees independent of ITT.
"It is ITT’s contention that its investment in subsidiaries, as shown above for the three years in question, should not be included in its net worth when applying the statutory formula for determining the franchise fee except as special adjustment provisions are applied. This is a phase of the issue presented by the case and a point of disagreement between the parties. Plaintiff would exclude all investments at cost in subsidiary corporations (which it designates "intangibles”) which have no relation to the divisional operations of ITT in Michigan from the fee base, or by way of compromise use the method it used in computing its alternate tax.
"Another point of disagreement between the parties appears in their application of the 3-factor apportionment formula. They are in agreement on the property and wage factors. However, ITT would have the sales factor computed on the basis of its intrastate sales plus sales generated by its Michigan sales offices. In making its computation the State treats as Michigan sales all tangible personal property delivered to a Michigan destination.
"As applied by the State, the 3-factor formula results in an apportionment to Michigan of approximately one-half (.5%) per cent of the entire net worth of ITT. In view of the fact that more than one-half of such net worth consists of ITT’s investments in subsidiaries and affiliates, the issue of whether such apportionment offends the due process and interstate commerce provisions of the Federal Constitution is presented.
"ITT recognizes that franchise fees are imposed by the State of Michigan on corporations, both foreign and domestic, for the privilege of conducting business within the state, MCLA 450.304 [MSA 21.205]; that the franchise fee is in the amount of five mills upon each dollar of the corporation’s paid-up capital and surplus, MCLA 450.304 [MSA 21.205]; that corporations that are subject to such taxes in states other than Michigan have the fee base apportioned to Michigan by multiplying the paid-up capital and surplus by a fraction consisting of three factors, to wit: property, payroll and sales, MCLA 450.305 [MSA 21.208]; and that the fee base and the three factors are defined by statute. As the court understands ITT’s position it does not question the propriety or constitutionality of the three-factor apportionment as a general matter, but only as it is applied to corporations having plaintiffs particular capital structure.
"Assuming that statements made in defendants’ brief are substantially correct, ITT’s Michigan property factor rose from .0192% in 1966 to .0332% and .033189% in 1967 and 1968, approximately l/30th of 1%. Its Michigan payroll factor varied between .0497% and .035059%, less than l/20th of 1%. However, Michigan destination sales were approximately 1-1/2% of plaintiffs total receipts.
"Using the statutory apportionment formula resulted in allocation percentages of .05501% for 1966, .0516% for 1967, and .5765% for 1968. Thus it would appear that the statutory formula would attribute to Michigan approximately 1/2 of 1% of ITT’s capital and surplus,
"Both parties cite from Cleveland-Cliffs Iron Co v Corporation & Securities Commission, 351 Mich 652 [88 NW2d 564] (1958), in support of basic principles. This case, including the dissenting opinion of three justices, extending for some 43 pages presents a very thorough discussion of the principles required for a constitutional application of the Michigan corporation franchise fee tax. However, the majority did find that certain corporate stocks of steel companies owned by the taxpayer and comprising about 27% of the taxpayer’s total assets should be included in determining book value net worth.
"In order that the issue presented in this case is kept in proper perspective, it should be kept in mind that in spite of all the argumentive emphasis on the intangibles constituting the holding company assets of ITT’s business we are not dealing with a tax on tangible or intangible property. As was said in Cleveland-Cliffs, supra (p 680 [88 NW2d p 572]):
" 'With respect to this tax the legislature does not purport to tax any specific asset, tangible or intangible, out-State or in-State. It does not impose a tax upon steel stocks, or upon appellant’s Minnesota mining properties, its fleet of vessels, its "vast” timber and ore lands, or any other specific property. What it says to the foreign corporation, simply put, is this: You are conducting activities within our borders for which we levy a franchise tax. We measure your local activities by a fair apportionment of your total value as a going concern.
" 'Such result is what our apportionment formulae seek to achieve.’
"Thus the intangibles are a factor in a formula to be used in computing the franchise fee. For this reason the case of Norfolk & Western R Co v Missouri State Tax Commission, 390 US 317; 88 S Ct 995; 19 L Ed 2d 1201 (1968), on which ITT places great reliance does not address itself to the issue presented in this case as it involved an ad valorem tax assessment of the plaintiffs rolling stock in the state, based on a statutory formula. Also, the factual situation would appear to this court to be substantially different from the standpoint of plaintiff’s proofs.
"In Cleveland-Cliffs, supra, the Court attempts to define the problems to be met in satisfying the requirement of due process and the commerce clause in determining the constitutionality of a corporate franchise fee. At pages 685-686 [88 NW2d at 575] the Court says:
" 'As to the constitutional objections made, we recognize that there cannot be a sharp differentiation (save as matter of verbiage) between the due process and commerce clause arguments. There are areas of over lap. Nevertheless, clarity of thought may be aided by a rough separation of the problems. Put with considerable oversimplification, and yet essentially accurately, our problem in the due process area is one of legislative jurisdiction. We look to see whether or not the State has reached out beyond its territorial limits, with respect either to property or activitiés, in the exercise of its taxing power. The problem is one of nexus, or whether we have "a sufficiently substantial and close connection with the transaction, whether by virtue of tax benefits conferred in general police protection and otherwise or on account of ideas of territorial sovereignty concerning occurrence of 'taxable incidents’ within its borders, to furnish the due process foundation necessary to sustain the exercise of its taxing power.” Rutledge, J., concurring in International Harvester Co v Department of Treasury, 322 US 340, 356; 64 S Ct 1019, 1034; 88 L Ed 1313, 1323 (1944). As expressed by Mr. Justice Frankfurter (Wisconsin v JC Penney Co, 311 US 435, 444; 61 S Ct 246, 250; 85 L Ed 267, 270-271; 130 ALR 1229, 1233 [1940]), "The simple but controlling question is whether the State has given anything for which it can ask return”.’
"Again at pages 690-691 [88 NW2d at 577-578] the Court says:
" 'Much of what has been said heretofore with respect to the due process clause is equally applicable to the problems presented by the commerce clause, as it is, indeed, to the problems of constitutional equality. Nevertheless there is a difference in emphasis. The commerce clause is, as a factual and economic matter, concerned with impediments to the free flow of commerce between the States. These may, of course» arise from a rapacious extra-jurisdictional levy by a taxing State, but obstruction equally effective may result from an exorbitant taxation by a taxing State having ample jurisdiction as a matter of due process, as well as by a more modest tax capable of use so cumulative as to be destructive.
" 'The commerce clause problem is this: Has this State, in imposing this tax, unduly burdened interstate commerce? What is a "burden” as the term is here employed? When is the burden "undue”? In answering these inquiries the older cases employed a simple direct-indirect dichotomy. If the tax bore directly upon interstate commerce it was forbidden. If its impact were only remote, or indirect, it was upheld. In later years we saw the emergence of the multiple burdens theory (Western Live Stock v Bureau of Revenue, 303 US 250; 58 S Ct 546; 82 L Ed 823; 115 ALR 944 [1938]), though more recent decisions (e.g., Freeman v Hewit, 329 US 249; 67 S Ct 274; 91 L Ed 265 [1946]) cast serious question upon its present utility, suggesting, in the language of the astronomer, that we may have been viewing a nova. The problem is complicated further by the fact that differing taxes often involve entirely dissimilar considerations and result in differing impacts upon the economy. In addition, those cases involving business exclusively interstate in character (e.g., Spector Motor Service, Inc, v O’Connor [340 US 602; 71 S Ct 508; 95 L Ed 573 (1951)]) present unique and difficult problems not here presented to us.’
"With these principles in mind the court has also considered National-Standard Co. v Department of Treasury, 384 Mich 184 [180 NW2d 764] (1970), and particularly United Air Lines Inc v Department of Treasury, 29 Mich App 242 [185 NW2d 192] (1970).
"In United the Court in upholding the State’s assessment of a franchise fee said (p 246 [185 NW2d p 193]):
" 'One of plaintiff’s attacks on the computation of the 1967 franchise fee it paid under protest is that the fee exceeds "reasonable limits”. In support of this position, plaintiff argues and the trial court found that the fee exacted is 37% of the gross revenues produced from the privilege granted by the state, i.e., the right to do an intrastate business in Michigan. The flaw in this argument and the error in the trial court’s finding is that it fails to take into account plaintiff’s interstate business originating in Michigan, a factor plaintiff concedes to be appropriate. If the franchise fee exacted is divided by the total gross revenue of plaintiff derived from intrastate business and interstate business originating in Michigan, the fee exacted is .00264% of plaintiff’s gross revenue derived from intrastate business.
" 'Plaintiffs argument and the trial court’s finding that application of the statutory formula to plaintiffs paid-up capital and surplus results in an apportionment to Michigan of plaintiffs paid-up capital and surplus that is disproportionate to plaintiffs business in Michigan are similarly fallacious. The argument and the finding consider only plaintiffs intrastate activity and ignore plaintiffs interstate activity originating in Michigan.
" 'We hold that application of the State formula to plaintiffs paid-up capital and surplus is within reasonable limits and that the tax rate was applied to a fair proportion of plaintiffs business done within the State of Michigan.’
"While it would appear from the facts that plaintiffs franchise fee corresponds to from 15.9% to 29.4% of its Michigan property and from 16.8% to 34.4% of Michigan wages paid, in terms of Michigan source receipts it amounts to .21^ per $100 of receipts for 1966 and 1967 and .28j¡! per $100 of receipts in 1968.
"In the opinion of the court there would appear to be nothing unreasonable or unconstitutional in using plaintiffs Michigan source receipts whether from intrastate or interstate sales as the sales factor in the statutory formula.
"Further, this court would not consider a franchise fee based on 1/2 of 1% of plaintiffs net worth as violating either due process or the commerce clause. The court would agree with defendant that the holding company phase of plaintiffs operation does in fact have a nexus in Michigan because of the supplying of 'management functions’ to several subsidiaries which do business in Michigan.
"Although plaintiffs investment in subsidiaries is intangible in nature, it is a part of the corporate net worth. In [National-Standard v Department of Treasury], supra, at pp 196-197 [180 NW2d at p 770], the Court said:
" 'If the money had been spent to buy stock of another company, for the construction of an industrial plant, or for the acquisition of another business, the cash invested from American Standard’s treasury would still be reflected on its books as an asset, having merely been altered to another form of property.’
"In this case plaintiff, like National-Standard and Cleveland-Cliffs, acquired stock in other companies.
"ITT also claims it is being subjected to double taxation because several of its corporate subsidiaries have paid Michigan franchise fees for the years 1966, 1967 and 1968. These subsidiaries have their own separate franchises and net worth and are separate legal entities. Their privilege to do business in Michigan is separate and distinct from that of ITT. So while it is true that the franchise fee of the subsidiaries is based on their net worth which in turn is a portion of ITT’s net worth, the court is of the opinion that this does not constitute double taxation to ITT.
"Judgment may enter for defendants upholding the determination and redetermination of plaintiff’s franchise fee. Costs to defendants.”
Issue I: The Taxpayer's Contentions
We have set forth the entire Court of Claims’ opinion because of its excellent statement of the facts and careful discussion of the legal issues as presented in that Court. On this appeal, we have found some difficulty in determining what the contentions of the taxpayer are. ITT sets forth three questions in its brief:
"1. In applying the statutory formula, and specifically with respect to the sales factor, was it permissible to treat as Michigan sales all tangible personal property delivered within the State?
"2. As it was applied to International Telephone and Telegraph Corporation for the involved period, was the statutory tax apportionment formula with respect to the annual franchise fee unreasonable or unconstitutional?
"3. Did double taxation occur upon the application of the statutory tax allocation formula with respect to the annual franchise fee to be paid by International Telephone and Telegraph Corporation when certain of its subsidiaries also paid the Michigan franchise fee?”
The answer to question 1, as correctly stated by the Court of Claims, is to be found in United Air Lines, Inc v Department of Treasury, 29 Mich App 242; 185 NW2d 192 (1970), leave to appeal denied 384 Mich 837 (1971). The answer to question 3 is correctly stated by the Court of Claims judge in the next to the last paragraph of his opinion. The proposition that each corporation is a separate, total entity is developed in the course of this opinion.
In its reply brief, ITT states:
"[I]t should be clear that our argument is centered upon the tax base and not one of the three factors which are taken into consideration with respect to the apportionment formula.”
And again:
"Our argument is not with the factors. Rather, it is our position that the 'key’ to the entire formula, that is, the tax base, must be adjusted in this case so as'to delete therefrom our investments in certain of our subsidiary corporations.”
Later in its reply brief, the taxpayer asserts:
"[B]oth.of our characteristics, that is, non-unitary and multiform, preclude taking into consideration all of our paid-up capital and surplus in the tax base.”
The taxpayer further argues:
"[C]apital outside of a state can be considered in computing a corporate franchise tax only if the business involved is a unitary enterprise.”
Consequently, we conclude that the issue before us is that stated in question 2 of the taxpayer’s brief, as more explicitly set forth in the above quotations from ITT’s reply brief.
Issue II: Unitary versus Multiform Corporations
ITT bases its claim for relief upon the provisions of MCLA 450.305; MSA 21.208, which read as follows:
"(5) If the allocation and apportionment provisions of this act do not fairly represent the extent of the taxpayer’s business activity in this state, the taxpayer may petition for or the department may require, in respect to all or any part of the taxpayer’s business activity, if reasonable:
"(a) Separate accounting;
"(b) The exclusion of any 1 or more of the factors;
"(c) The inclusion of 1 or more additional factors which will fairly represent the taxpayer’s business activity in this state; or
"(d) The employment of any other method to effectuate an equitable allocation and apportionment of the taxpayer’s income.
"An alternative method will be effective only with prior approval of the commission.”
While ITT engages in business in 57 countries and in virtually all of the 50 states, its business activities, as detailed by Judge Corkin, consist of two separate functions. First, as an operating company it functions through approximately 38 divisions which are not separate corporations. Second, as a holding company it operates through numerous subsidiary corporations whose operations are not integrated with the manufacturing and sale activities of the parent corporation, but which subsidiaries receive certain management advisory services from ITT’s headquarters in New York. Fifty per cent of ITT’s net worth is attributable to subsidiary corporations. Each subsidiary doing business in Michigan is paying its own franchise taxes. Since the businesses of the various subsidiaries are non-unitary with the business of ITT, carried on through its divisions, it is ITT’s position that its investments in the subsidiary corporations should be eliminated from the tax base.
ITT’s position is probably best stated by Mr. Justice Holmes in Wallace v Hines, 253 US 66, 69-70; 40 S Ct 435, 436-437; 64 L Ed 782, 786 (1920). In that case, North Dakota attempted to levy an excise tax by a formula which assessed a portion of the railroad’s total property equal to the proportion of its main trackage within the state to Its total main trackage. Justice Holmes wrote:
"The only reason for allowing a state to look beyond its borders when it taxes the property of foreign corporations is that it may get the true value of the things within it, when they are part of an organic system of wide extent, that gives them a value above what they otherwise would possess. The purpose is not to expose the heel of the system to a mortal dart — not, in other words, to open to taxation what is not within the state. Therefore no property of such an interstate road situated elsewhere can be taken into account unless it can be seen in some plain and fairly intelligible way that it adds to the value of the road and the rights exercised in the state. Hence the possession of bonds secured by mortgage of lands in other states, or of a land grant in another state, or of other property that adds to the riches of the corporation, but does not affect the North Dakota part of the road, is no sufficient ground for the increase of the tax — whatever it may be — whether a tax on property, or, as here, an excise upon doing business in the state.”
Other cases cited by ITT place even greater stress upon the concept that a state may tax only the operation within the state. For instance, in Commonwealth v Kirby Estates, Inc, 432 Pa 103; 246 A2d 120 (1968), the taxpayer, primarily a holding company, had made an investment in Pennsylvania real estate. The Pennsylvania Court found that the taxpayer’s presence in Pennsylvania was limited to the ownership of real estate unconnected with its ownership of stocks. The Court concluded that the state franchise tax could only be applied to that part of the corporation’s business done in Pennsylvania since the operations outside Pennsylvania were wholly unrelated. Its $77,565.57 investment in Pennsylvania had produced a net income of $646.82 and a Pennsylvania franchise tax of $3954.74. See also Commonwealth v Columbia Gas & Electric Corp, 336 Pa 209; 8 A2d 404 (1939); Morewood Realty Corp v Commonwealth, 6 Pa Commw 244; 294 A2d 219 (1972).
In the case of Hans Rees’ Sons, Inc v North Carolina, 283 US 123, 135; 51 S Ct 385, 389; 75 L Ed 879, 908 (1931), the formula which North Carolina attempted to use to assess an income tax in connection with the manufacturing business of the appellant in North Carolina was found by the United States Supreme Court to be "a percentage of income out of all appropriate proportion to the business transacted by the appellant in that state”. In that case, the manufacturing business of the appellant extended over several states, and North Carolina’s formula attempted to tax practically all of the corporation’s income to North Carolina. The case can, of course, be distinguished from the present one because of the nature of the tax, but it does illustrate the broad general principle that a state may tax only that which pertains to the state.
Again, in Norfolk & W R Co v Missouri State Tax Commission, 390 US 317, 326; 88 S Ct 995, 1002; 19 L Ed 2d 1201, 1208 (1968), a state ad valorem tax on the railroad’s rolling stock within the state was stricken down for the reason that "rigid application of the mileage formula led to a grossly distorted result”.
While the above cases and numerous others, irrespective of the particular kind of tax, stress the concept that a state’s taxing power stops at its borders, there has been a steady liberalization in legal interpretation of the ways in which a state may formulate its own statutes to tax businesses which operate within the state. For example, in Butler Bros v McColgan, 315 US 501, 506; 62 S Ct 701, 704; 86 L Ed 991, 995-996 (1942), the formula used by California to assess a franchise tax con verted an $82,851 loss (based on separate bookkeeping by the corporation of its operations within the state) into a $93,500 profit. The United States Supreme Court said:
"We read the statute as calling for a method of allocation which is 'fairly calculated’ to assign to California that portion of the net income 'reasonably attributable’ to the business done there.”
The Court held that it was proper to take into account, based upon unity of use and management, the business of the corporation both inside and outside of the state.
Turning to Michigan cases, as Judge Corkin concluded, probably the key case is Cleveland-Cliffs Iron Co v Corporation & Securities Commission, 351 Mich 652; 88 NW2d 564 (1958). In that case, the Michigan Supreme Court considered the wideranging nature of the various business activities of Cleveland-Cliffs, noting that the corporation was carrying on extensive operations in iron ore, coal, a steamship line, and timber, as well as being involved in a chemical company, a power and light company, a hospital, a motel, a real estate company, and so on. The Court concluded (p 670; 88 NW2d p 567) that Cleveland-Cliffs was "an extensive economic complex” and that all of the operations of the corporation, including its holdings in steel stocks, could be taken into account in determining the Michigan business activity tax. The Court considered whether Cleveland-Cliffs’ business activity was unitary and concluded (p 683; 88 NW2d p 574) that it would characterize the business as such "were the issue here controlling”. However, the Court went on to find (p 684; 88 NW2d p 574) "that the unitary concept does not here control”. The tax, computed on a formula taking into account all operations of Cleveland-Cliffs, was upheld. Judge Corkin has ably analyzed and extensively quoted from this case so that it requires no further comment here.
In Wisconsin & Michigan Steamship Co v Corporation & Securities Commission, 371 Mich 61; 123 NW2d 258 (1963), Justice Souris pointed out that Duluth, SS & AR Co v Corporation & Securities Commission, 353 Mich 636; 92 NW2d 22 (1958), severely limited the earlier and more restrictive decisions in Gartland Steamship Co v Corporation & Securities Commission, 339 Mich 661; 64 NW2d 886 (1954), and Panhandle Eastern Pipe Line Co v Corporation & Securities Commission, 346 Mich 50; 77 NW2d 249 (1956). Justice Souris wrote (pp 71-72, 73; 123 NW2d pp 263, 264):
"Whether or not the privilege granted a taxpayer to do an intrastate business is exercised has nothing whatever to do with the right of a state, unhampered by the commerce clause, to charge for such' privilege a fee based upon a reasonably allocated portion of the taxpayer’s capital and surplus. What Michigan says to the taxpayer, in effect, is this: 'Separate and apart from your unquestioned right to exercise your corporate franchises in interstate commerce within this State, without imposition by this State of a fee for the exercise of that right, you may also pursue your business within this State in matters not involving interstate commerce, but only upon payment of a fee for that privilege. That fee will be measured by determination of that portion of your total paid-up capital and surplus available for such intrastate business, whether or not the privilege actually is exercised by you.’
* * *
"There is no constitutional reason, absent discrimination between domestic and foreign corporations, why a state may not determine corporate franchise fees on the basis of the potential capital, — the financial power or capital potency, — reasonably available to a corporation for use within the taxing jurisdiction, whether or not actually so used.”
A corporation is a single entity capable of functioning in protean fashion. The various forms and shapes it may take are practically unlimited, as are its methods and modes of operation. It may elect to carry on a completely integrated vertical operation from raw material to finished product by means of a single corporate entity, or may utilize separate divisions, or may create subsidiary corporations for each phase of its operations. It may operate as a manufacturer of a single specialty product, or of many products; as a wholesaler or retailer in one or many products; as an owner of other corporations — the possibilities are practically without limit. How a corporation is to operate is a decision for it to make within the bounds of its charter powers. So, in the case of ITT, its decision to operate along two broad general lines was one made by it, certainly not by the State of Michigan. The ultimate fact is that, no matter how it operates, it is a single, corporate entity and is treated as such in the statute. See National-Standard Co v Department of Treasury, 384 Mich 184, 198-204; 180 NW2d 764, 770-773 (1970).
If a state were obliged each year to make an analysis of the nature of a corporation’s various operations and then determine the corporate franchise fee accordingly, the task would be practically insuperable in view of the complexity of corporate operations and the many forms they may assume. For this reason we think that the State of Michigan has wisely decided to treat each corporation as a separate entity. The corporation determines what form or structure it will assume. The formula for determining a franchise tax is up to the state, providing always the formula results in a fair franchise fee.
ITT opens its reply brief with this statement:
"The appellees erroneously declared that the constitutionality of the statute per se had been placed in issue. As noted on page 15 of our brief, we specifically declined to make such an argument. Rather, it is our position that the mechanical application of the apportionment formula, as urged by the appellees, would be unconstitutional in this case due to its particular facts.” (Emphasis added.)
This leads us to an analysis of the application of the apportionment formula.
Issue III: The Heavy Burden
In Norfolk & W R Co v Missouri State Tax Commission, supra, the United States Supreme Court found the statutory formula to be unconscionable under the facts in that case, but noted that when a taxpayer challenges a formula it has a "heavy burden” to bear.
ITT, while conceding that the "application of the apportionment formula” is the test of constitutionality, has declined this burden, stating in its reply brief as follows:
"In light of the above legal propositions and conclusions, there is no need to engage in a 'numbers game’ and we respectfully decline the appellees’ invitation to do so. By emphasizing statistics, the appellees have lost sight of the relevant legal restrictions on taxation involved and presented in this case.”
In view of ITT’s position, we content ourselves with these short excerpts from the brief of the Attorney General analyzing the application to ITT of the apportionment formula:
"The franchise tax demanded by the Michigan statute corresponds to 29.4% of ITT’s Michigan property in 1966, 12.3% of its Michigan property in 1967, and 15.9% of its property in 1968. The fee, as a percentage of the Michigan wages paid by ITT is of similar significance, varying from 16.8% to 34.4%. However, in terms of Michigan-source receipts of ITT, the state demands as franchise tax twenty-one cents for each $100 of receipts in the years 1966 and 1967, and twenty-eight cents per $100 of those receipts in 1968.
* * *
"If we examine this in another light, we see that ITT’s Michigan property factor rose from .0192% in 1966 to .0332% in 1967 and .033189% in 1968; approximately l/30th of 1%. Its Michigan payroll factor varied between .0497% and .035059%; less than l/20th of 1%.
"On the other hand, Michigan destination sales were approximately 1-1/2% of its entire receipts.
"Mathematical addition of the three factors and division of the aggregation by the number of factors [three] result in a Michigan allocation percentage for ITT for the years 1966, 1967 and 1968 amounting to .05501%, .5016% and .5765% respectively. In other words, formulary apportionment, as provided by the Michigan franchise tax law attributes to this State approximately one-half of 1% of ITT’s capital and surplus.”
In this case, the burden was upon ITT to show that the apportionment formula does not fairly represent its Michigan activity. Under Michigan’s formula, 99-1/2% of ITT’s total worth has been excluded in assessing the Michigan franchise tax. The trial judge has ably analyzed the fairness of the tax imposed. We agree with his analysis.
The Court of Claims is affirmed. Costs to defendants.
All concurred.
"7Upon request for rehearing, the parties acknowledge that the Court was in error. The Michigan franchise tax exacted from United Air Lines was .264% of the gross revenues originating in Michigan, i.e., it amounted to a little more than twenty-six cents for each $100 of ticket purchases in Michigan.
"In the case at bar, the franchise tax exacted by the state varies from twenty-one to twenty-eight cents for each $100 of Michigan receipts of ITT.” (Footnote by the trial court.)
Appeal to the United States Supreme Court was dismissed November 9,1971 for want of a substantial Federal question. 404 US 931; 92 S Ct 283; 30 L Ed 2d 245 (1971). See also Matson Navigation Co v State Board of Equalization, 297 US 441; 56 S Ct 553; 80 L Ed 791 (1936).
There is no showing in this case that the taxpayer sought prior approval of the Michigan Corporation and Securities Commission to use an alternative method to compute the tax. No issue has been raised as to the failure of ITT to seek prior approved of the commission. Since our holding is adverse to ITT, the procedural question need not be considered.
Unlike the trial judge, we do not find it necessary to determine whether these activities establish a nexus between Michigan and the operations of the subsidiary corporations.
See F W Woolworth Co v Director of Division of Taxation, 45 NJ 466; 213 A2d 1 (1965).
See National-Standard Co. v Department of Treasury, 384 Mich 184, 192; 180 NW2d 764, 767-768 (1970).
For a statement to like effect, see Butler Bros v McColgan, 315 US 501, 507; 62 S Ct 701, 704; 86 L Ed 991, 996 (1942).
See footnote 1, supra, and United Air Lines, Inc v Department of Treasury, 29 Mich App 242; 185 NW2d 192 (1970). The Michigan franchise fee exacted from United Air Lines was .264% of the gross revenues originating in Michigan, i.e., the fee amounted to a little more than 26¡¿ for each $100 of ticket purchases in Michigan. The parties in the instant case point out that the figure appearing in the United opinion (.00264%) is erroneous, and agree that .264% is correct. (Footnote by the author of this opinion.) | [
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V. R. Payant, J.
National Indemnity appeals as of right from an order of partial summary judgment in which the trial court found that National Indemnity and DAIIE were liable in equal proportion for plaintiffs no-fault insurance benefits.
The underlying facts are not in substantial dispute. On November 10, 1978, Robert Winters, plaintiffs decedent, was operating a tractor-trailer which he owned and leased to his employer, Allied Delivery System, Inc. (Allied). Willie Penilton also owned a tractor which he leased to Allied. Winters’s vehicle became disabled and Penilton was dispatched by Allied to go out to Plymouth Road to pick up the trailer, which he did. Penilton drove east on Plymouth Road and found Winters at a general store. Penilton offered to drive Winters back to Allied. They first drove back to the site of the disabled tractor to retrieve some paperwork. After they got the paperwork, Penilton got back in his tractor and pulled away from where Winters was standing and began to turn to straighten out the tractor. Winters told him to pull across the road and he would get in after the tractor was straightened out. Penilton next saw Winters lying in a ditch after he was hit by a car driven by Richard Sanocki. Sanocki testified that he swerved to avoid the tractor-trailer which was blocking both lanes of traffic and struck Winters, who was standing on the shoulder of the road.
The Winters and Penilton tractors were insured by St. Paul Fire & Marine Insurance (St. Paul) under a policy issued to Allied. Winters’s tractor was also insured by National Indemnity with a policy of "bobtail” coverage. DAIIE insured Winters’s personal vehicle.
The trial court granted St. Paul’s motion for summary judgment, finding that Winters was not an occupant of Penilton’s truck at the time of the accident. The court also found that no exclusions in National Indemnity’s policy applied in order to relieve it of liability. Consequently, the court granted summary judgment in favor of plaintiff against National Indemnity and DAIIE and distributed the liability for plaintiff’s no-fault benefits equally between the two insurers since they were in the same order of priority.
On appeal, National Indemnity challenges the trial court’s entry of summary judgment in favor of St. Paul based on its findings that Winters was not an occupant of his employer’s vehicle, nor was he a "named insured” on St. Paul’s policy. It further contests the order of partial summary judgment holding itself and DAIIE equally responsible for plaintiff’s no-fault benefits.
Initially, we note that National Indemnity lacks standing to appeal the summary judgment in favor of St. Paul where it filed no cross-claims against St. Paul and plaintiff accepted the trial court’s ruling. It is a well-recognized rule that "one party cannot claim another party’s appellate opportunities”. Kewin v Melvindale-Northern Allen Park Public Schools Bd of Ed, 65 Mich App 472, 483; 237 NW2d 514 (1975).
While this precludes our consideration of whether Winters qualifies as a named insured under his employer’s policy, we still must address the question of occupancy since it is relevant in determining priority between the defendant insurance companies. See Davis v Auto-Owners Ins Co, 116 Mich App 402; 323 NW2d 418 (1982). There is no doubt that plaintiff is entitled to no-fault benefits in that Mr. Winters’s injuries arose out of the operation of a moving motor vehicle as a motor vehicle. MCL 500.3105; MSA 24.13105; Shinabarger v Citizens Mutual Ins Co, 90 Mich App 307, 314-315; 282 NW2d 301 (1979), lv den 407 Mich 895 (1979). Once it is established that a claimant is entitled to no-fault benefits, it is necessary to determine which insurance company is liable for those benefits. MCL 500.3115; MSA 24.13115 provides, in pertinent part:
"Sec. 3115. (1) Except as provided in subsection (1) of section 3114, a person suffering accidental bodily injury while not an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:
"(a) Insurers of owners or registrants of motor vehicles involved in the accident.
"(b) Insurers of operators of motor vehicles involved in the accident.”
Section 3115 only applies if Winters was not an "occupant” of the Penilton tractor-trailer at the time of the accident. If he was an occupant of the Penilton tractor-trailer at the time of the accident then MCL 500.3114(3); MSA 24.13114(3) applies and his employer’s insurer, St. Paul, would be primarily liable.
In the recent case of Kalin v DAIIE, 112 Mich App 497; 316 NW2d 467 (1982), this Court re viewed the case law surrounding the "occupancy” issue. In that case, the plaintiff was injured when he was struck by a moving vehicle on his third trip to a store from his delivery truck. The Court held that plaintiff was not an "occupant” under the statute. In reaching its decision, the Court noted there was a distinction between the term "occupying” as used in an automobile insurance policy and the term as used in the statute. Language in an insurance policy is to be strictly construed against the insurer but statutory provisions are to be interpreted according to their commonly accepted meanings. The Court further distinguished those cases which found the plaintiff to be an "occupant”, noting that the plaintiff’s injuries were not sustained "immediately” after occupying his employer’s vehicle and the injury was not as a result of any contact with the vehicle. The Court concluded that, at the very least, immediate prior occupancy was necessary to a finding of "occupancy” under the statute. Id., pp 502-506; cf. Davis v Auto-Owners Ins Co, supra.
In the instant case, Winters had left the Penilton vehicle to retrieve paperwork from his own vehicle. He had crossed the street and told Penilton that he would wait until he turned around before entering the vehicle. Winters was simply walking along the shoulder of the road as a pedestrian waiting for Penilton to turn around. Under these facts, we uphold the trial court’s finding that Winters was not an occupant, there being no immediate prior occupancy and no physical contact with the tractor-trailer prior to the accident.
Since Winters was not an occupant, St. Paul, the employer’s insurer, is not liable for plaintiff’s no-fault benefits. The priority provisions of § 3115 therefore govern in determining liability as be tween National Indemnity and DAIIE, Winters’s personal insurer.
National Indemnity claims that its "bobtail” policy on Winters’s tractor was intended to cover the tractor only when it was not being used under Allied’s lease, which intent is evidenced by the policy’s contingent liability endorsement which, if applicable, is void as contrary to public policy because it limits the statutorily required coverage. We find that the trial court properly concluded that none of the exclusions listed in the contingent liability endorsement applied given the facts in this particular case. Winters’s tractor was not being used for transporting goods or for loading or unloading (exclusion 2). It was also not being used for towing or transporting any trailer or semitrailer (exclusion 3). Finally, since Winters was not an occupant, Allied, Winters’s employer, had not provided other valid and collectible insurance applicable to the accident. Hence, exclusions 4 and 5 do not apply. Because we find the exclusions to be inapplicable on their face, we need not address the public policy issue.
The final issue before us concerns whether the trial court erred in holding National Indemnity and DAIIE equally liable for plaintiffs no-fault benefits. The basis for equal contribution among insurers is found in MCL 500.3115(2); MSA 24.13115(2), which states:
"(2) When 2 or more insurers are in the same order of priority to provide personal protection insurance benefits an insurer paying benefits due is entitled to partial recoupment from the other insurers in the same order of priority, together with a reasonable amount of partial recoupment of the expense of processing the claim, in order to accomplish equitable distribution of the loss among such insurers.”
DAIIE contends that National Indemnity stood • in a higher order of priority as the insurer of Winters’s tractor which, because of its close proximity to the accident, was a vehicle involved in the accident. In support of its contention, DAIIE cites State Farm Fire & Casualty Co v Citizens Ins Co of America, 100 Mich App 168; 298 NW2d 651 (1980).
In State Farm, supra, the claimant was injured while driving a van insured by the plaintiff. The injured claimant and her husband also owned other vehicles insured by the defendant. The Court held that plaintiff was in a higher order of priority, being the insurer of the motor vehicle involved in the accident. The Court further noted that plaintiff had no right to partial recoupment from defendant for the personal protection insurance benefits paid since it had insured the claimant against the particular risk she incurred, whereas defendant had not insured against the same risk. Id., pp 177-178.
We agree with the trial court that State Farm is distinguishable from the instant case. Unlike the claimant in State Farm, Winters was not an occupant of any vehicle involved in the accident. We specifically reject the argument that a vehicle’s close proximity to the scene of the accident is the same as being "involved” in the accident under the statute. If the Legislature had so intended, it would have clearly worded the statute in those terms.
Thus, because Winters was not an occupant of any motor vehicle involved in the accident, there is no clear reason for establishing any priorities between National Indemnity and DAIIE. We therefore affirm the trial court’s order of partial summary judgment which divided the liability for plaintiffs no-fault benefits equally between the two insurers.
Affirmed.
Appellant does not claim that Winters was an occupant of his own tractor-trailer at the time of the accident.
MCL 500.3114(3); MSA 24.13114(3) provides:
"(3) An employee, his or her spouse, or a relative of either domiciled in the same household, who suffers accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer, shall receive personal protection insurance benefits to which the employee is entitled from the insurer of the furnished vehicle.”
The "Contingent Liability Endorsement” provided, in relevant part:
"1. such insurance only applies to the named insurer.
"2. such insurance does not apply during such time as the automobile is used for transporting goods or merchandise, or while such goods or merchandise is being loaded or unloaded from the insured automobile.
"3. such insurance does not apply while the power unit (tractor) is used for the towing or transporting of any trailer or semi-trailer, or while the power unit is in the process of having a trailer or' semitrailer attached to or detached from it, unless such trailer of [sic] semi-trailer is owned by the named insured and specifically described in this policy.
"4. such insurance does not apply during such time as the named insured is operating, maintaining or using the automobile for or on behalf of any person or organization.
"5. such insurance does not apply during such time as the named insured is acting as an agent or employee of any person or organization.
“provided, however, such person or organization has provided other valid and collectible insurance, whether primary, excess or contingent in accordance with chapter 31 of the Michigan Insurance Code.” | [
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Per Curiam.
Defendant pled guilty to larceny in a building, MCL 750.360; MSA 28.592. Sentenced to 26 to 48 months in prison, she appeals as of right, raising three claims of error.
I
Defendant initially contends that there was an insufficient factual basis to support acceptance of her plea. GCR 1963, 785.7(3)(a). The record reflects the following colloquy between the defendant and the court:_
"The Court: How did you steal the coat out of the Woolco store?
’’The Defendant: I was trying on the coat, and Mr. Bonner was holding my coat, my coat, and he said he was going over in another department, and he laid my coat up over my shoulders, and I went to show my sister. And I had a cigarette in my hand, and the lady that sits at the front desk told me I had to put it out, and then she said I was trying to steal the coat.
’’The Court: Were you trying to steal the. coat?
’’The Defendant: No, I wasn’t.
’’The Court: Why are you pleading to larceny in a building then?
’’The Defendant: Because I really don’t have no other choice. I am already sentenced.
’’The Court: I can’t accept your plea.
"(Whereupon the defendant Bonner entered the courtroom.)
"Is this Bonner? Okay.
"I guess we will just have to try the case later on. You can’t plead guilty if you are not guilty.
"Do you want to change what you had to say?
’’Defendant Frost: Well, I can say I was trying to.
’’The Court: Were you trying to steal it or not?
’’Defendant Frost: Yes, sir.
’’The Court: Now, really, don’t say it just because you want to plead guilty.
’’Defendant Frost: Yes, sir, I was trying to steal it.
’’The Court: Had you and Eugene Bonner talked about it beforehand?
’’Defendant Frost: No.
’’The Court: So you were wearing the Woolco coat that you hadn’t paid for?
"Defendant Frost: Uh-huh.
’’The Court: Underneath your own coat?
’’Defendant Frost: Yes, sir.
’’The Court: And you were going outside when they stopped you?
’’Defendant Frost: Uh-huh.
’’The Court: And you say that you were trying to get away with that coat without paying for it?
"Defendant Frost: Uh-huh.”
Despite the trial court’s admonition to defendant not to say that she was trying to steal the coat just because she wanted to plead guilty, defendant insisted on admitting the requisite intent. We find the factual basis sufficient under People v Haack, 396 Mich 367; 240 NW2d 704 (1976), and accordingly reject this claim of error.
II
Defendant next contends that the prosecution abused its discretion by charging her with larceny in a building rather than shoplifting. We disagree. Defendant was caught red-handed trying to walk out of a Woolco store with a $34 coat underneath her own jacket. Under the circumstances of this case, we find no abuse of prosecutorial discretion. See People v Rush, 118 Mich App 236; 324 NW2d 586 (1982).
Ill
Finally, defendant contends that her conviction must be reversed on the ground that her plea bargain was illusory. According to defendant, she pled guilty in reliance on the prosecution’s promise not to recommend consecutive sentencing. Defendant also submits that consecutive sentences could not have been imposed, and that therefore her plea was induced by an illusory bargain.
In response, the prosecution insists that the promise not to recommend consecutive sentencing was not part of the agreement, but was a gratuitous, kindly gesture. The record does not support this contention. Both the trial court and defendant apparently regarded tliis promise as part of the bargain.
In recognition of the probability that the above claim is not a winning argument, the prosecution also insists that consecutive sentencing was actually possible inasmuch as defendant committed the crime while another felony charge was pending. See MCL 768.7b; MSA 28.1030C2). The pending charge was attempted larceny in a building, MCL 750.92; MSA 28.287, MCL 750.360; MSA 28.592. Larceny in a building is punishable by a term of four years in prison. MCL 750.92; MSA 28.287 provides in part:
"Any person who shall attempt to commit an oífensé prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration, or shall be intercepted or prevented in the execution of the same, when no express provision is made by law for the punishment of such attempt, shall be punished as follows:
"3. If the offense, so attempted to be committed is punishable by imprisonment in the state prison for a term less than five [5] years, or imprisonment in the county jail or by fine, the offender convicted of such attempt shall be guilty of a misdemeanor, punishable by imprisonment in the state prison or reformatory not more than two [2] years or in any county jail not more than one [1] year or by a fine not to exceed one thousand [1,000] dollars * * *.” (Emphasis supplied.)
Thus, it is clear that the pending charge — attempted larceny in a building — was a misdemeanor, not a felony. The prosecution cites MCL 761.1(g); MSA 28.843(g) in support of its contention that the pending charge was a felony since it was punishable by imprisonment for over one year. This general definitional section, however, must give way to the attempt statute’s (MCL 750.92; MSA 28.287) specific classification of the pending charge as a misdemeanor. See, e.g., Linski v Employment Security Comm, 358 Mich 239, 244-245; 99 NW2d 582 (1959):
" 'It is an old and familiar principle, closely related to the rule that where an act contains special provisions they must be read as exceptions to a general provision in a separate earlier or subsequent act, that where there is in the same statute a specific provision, and also a general one which in its most comprehensive sense would include matters embraced in the former, the particular provision must control, and the general provision must be taken to affect only such cases within its general language as are not within the provisions of the particular provision.’ 50 Am Jur, Statutes, § 367.”
Since the charge pending against defendant was not a felony but a misdemeanor, consecutive sentences could not have been imposed. Hence, her plea was induced by an illusory bargain, and she must be given an opportunity to withdraw her plea. Accordingly, we remand this case to the trial court in order to afford defendant an opportunity to withdraw her plea; if she fails to do so within a reasonable time, then her conviction is hereby affirmed.
Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
MCL 768.7b; MSA 28.1030(2) provides:
"Sec. 7b. When a person, who has been charged with a felony and pending the disposition of the charge, commits a subsequent offense which is a felony, upon conviction of the subsequent offense or acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere for the subsequent offense, the following shall apply:
"(a) The sentences imposed for conviction of the prior charged offense and a subsequent offense, other than a major controlled substance offense, may run consecutively.
“(b) The sentences imposed for conviction of the prior charged offense and a subsequent offense which is a major controlled substance offense shall run consecutively.”
We observe that the prosecution has erroneously cited "MSA 28.1082” in support of its contention that consecutive sentencing was possible. We wish to remind the prosecution that it cannot expect this Court to correct the prosecution’s faulty research.
MCL 761.1(g); MSA 28.843(g) provides:
"(g) 'Felony’ means a violation of a penal law of this state for which the offender, upon conviction, may be punished by death or by imprisonment for more than i year, or an offense expressly designated by law to be a felony.” | [
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J. H. Gillis, J.
Defendant was charged with first-degree felony murder, MCL 750.316; MSA 28.548. He was convicted of second-degree murder, MCL 750.317; MSA 28.549, and sentenced to 25 to 40 years imprisonment. This appeal is brought as of right. GCR 1963, 806.1.
Defendant raises six issues on appeal and requests remand for an evidentiary hearing on the question of whether he was denied effective assistance of counsel with regard to his attorney’s failure or refusal to subpoena certain witnesses.
The testimony of the witnesses who were pres ent at trial indicates that during the evening of November 20, 1978, Eddie Godlove answered a knock at his door and was confronted with a male and a female. The man grabbed Godlove, announced a stick-up, and hit Godlove with a gun when Godlove began to yell. The gun discharged, hitting the female accomplice (Shirley Howard) in the neck. The man fled, leaving the woman lying on the floor. She died sometime later.
Mr. Godlove could not identify the man involved in the attempted robbery. Jessie Tolbert testified, however, that he and defendant’s brother, Ronald Hall, had joined six other people (including defendant and Ms. Howard) in a Detroit restaurant earlier in the evening of November 20, 1978, in an attempt to borrow some guns owned by defendant and a friend. Tolbert intended to rob Godlove but was unable to persuade defendant and his friend to give up their firearms. However, Tolbert testified that the discussion soon turned to how such a robbery could be committed. Apparently, unnamed members of the group decided that a female should knock on Godlove’s door and one or more of the men would rush in as soon as the door was opened.
Tolbert and Ronald Hall left the restaurant with two other members of the group (Daisy Brewster and Bunny). Later, defendant’s brother received a phone call at Tolbert’s house which prompted the two men to drive past Godlove’s home "to see if the girl was dead”. Because numerous police officers were at the Godlove home, Tolbert and Ronald Hall merely drove by and returned to Tolbert’s home. Several days later, however, Tolbert asked defendant what had happened and was told that Ms. Howard had knocked on Godlove’s door, the door was opened, and defendant followed Howard and Bob Fierson into the home and saw Fierson attempt to hit Godlove with the gun. Howard was shot when the gun inadvertently discharged. Defendant and Fierson immediately ran out, leaving Howard lying on the floor. Fierson was one of the men who was with the group in the restaurant when Tolbert, Ronald Hall, Ms. Brewster and Bunny left.
Defendant’s claim that the trial court erred in admitting into evidence photographs of the God-love entry hall which depicted a bloodstained carpet is rejected. The admission of such photographs rests with the trial court’s discretion. People v Eddington, 387 Mich 551; 198 NW2d 297 (1972). The court’s decision will be upheld if the photographs were "substantially necessary or instructive to show material facts or conditions” and it does not appear that they were offered in an attempt to "excite passion or prejudice”. People v Falkner, 389 Mich 682, 685; 209 NW2d 193 (1973). We find that no error occurred here. The photographs were probative of the question whether the "robbers” had actually entered the home, as was stated by Mr. Godlove. Because they depicted only a bloodstained carpet, we do not find an intent to prejudice the jury.
We also find unpersuasive defendant’s argument that he was prejudiced when a woman began to cry in the courtroom. Although the woman was believed to be Ms. Howard’s mother, we find no reversible error in the event. Defendant cites no authority in support of his claim and we have found nothing which requires reversal on this ground.
Defendant’s challenge to Tolbert’s testimony that he (Tolbert) and Ronald Hall drove by God-love’s house to see if Ms. Howard was dead is premised on the hearsay rule. Defendant argues that Tolbert’s testimony that Ronald Hall received a phone call after which Tolbert and Hall drove by Godlove’s house "[t]o see what was said really happened * * * to see if the girl was dead”, constitutes hearsay admitted to prove the truth of the matter asserted. This argument is unavailing. The testimony indicated only that someone called defendant’s brother at Tolbert’s house and told him that Shirley Howard had been killed during the robbery attempt at Godlove’s house. This may have been hearsay, but its admission into evidence was harmless at best; Ms. Howard’s death had already been established by other evidence.
The only potentially prejudicial inference flowing from the challenged testimony was that defendant had made the telephone call. We do not deem such an inference likely enough to require reversal. Nothing in the testimony made it more reasonable to infer that the caller was defendant instead of one of the other individuals involved.
Defendant also argues that Tolbert’s testimony as to the restaurant meeting was inadmissible hearsay which was highly prejudicial to the defendant. The prosecutor argues that the statements were made in furtherance of a conspiracy and were thus admissible under MRE 801(d)(2)(E). We agree.
The cited court rule permits the admission into evidence of coconspirator’s statements "during the course and in furtherance of the conspiracy on independent proof of the conspiracy”. This exception to the hearsay rule was applied to cases in which no conspiracy had been charged, before the enactment of the Michigan Rules of Evidence, People v Stewart, 46 Mich App 282, 285; 207 NW2d 907 (1973), aff'd 397 Mich 1; 242 NW2d 760 (1976) , modified 400 Mich 540; 256 NW2d 31 (1977) , People v Shepherd, 63 Mich App 316, 322; 234 NW2d 502 (1975), People v Adams, 48 Mich App 595, 599; 210 NW2d 888 (1973), and People v Woodfork, 47 Mich App 631, 633; 209 NW2d 829 (1973). We see no policy reason why it cannot continue to be applied in such cases.
Our review of the record discloses prima facie evidence of a conspiracy independent of the restaurant meeting testimony. Mr. Godlove’s testimony established that two people attempted to rob him and that one was shot in the process. The acts of the then unknown robbers circumstantially established that they were engaged in a concert of action. Tolbert’s testimony reiterating defendant’s admitted participation in the robbery attempt establishes his connection to the conspiracy or concert of action. This was an essential element of the independent proofs. It was admissible under MRE 801(d)(2)(A), as a party admission which did not rise to the status of a confession. See, e.g., People v Porter, 269 Mich 284, 289-291; 257 NW 705 (1934). See, also, People v Moncure, 94 Mich App 252, 257-261; 288 NW2d 675 (1979).
Tolbert’s testimony in this regard was admitted after he testified to the restaurant meeting. While some authority exists for the proposition that the independent proof of the conspiracy must be offered and admitted before the coconspirator’s statements can be admitted, People v Scotts, 80 Mich App 1; 263 NW2d 272 (1977), we adhere to the rule that "[t]he order of presentation of the proofs was unimportant, as it is clear that [the] trial court may vary the order of proofs and admit the coconspirator’s statements contingent upon later production of the independent evidence required under MRE 801(d)(2)(E). See MRE 104(b).” People v Losey, 98 Mich App 189; 296 NW2d 601 (1980). In the case at bar, the sum of the proofs established an independent basis for the conspiracy. Tolbert’s testimony as to the restaurant meeting was, therefore, properly admitted into evidence.
Following Tolbert’s testimony at trial, Police Officer Smith, who interviewed Tolbert and took his statement, was examined. Defendant now claims that Officer Smith’s testimony concerning what Tolbert told him was highly prejudicial hearsay testimony. This issue was preserved below by defense counsel’s objection.
The officer’s testimony established that, although not included in the written statement signed by Tolbert, he (Tolbert) did tell the officer about the restaurant meeting. Defendant cites no authority in support of his argument on appeal; the prosecutor argues that the challenged testimony falls within the MRE 803(3) "state of mind” exception to the hearsay rule.
MRE 803(3) is inapplicable here because it relates only to the "declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health)”. Officer Smith’s testimony concerned only whether Tolbert told Smith about the restaurant meeting at the time the signed statement was made. A careful analysis of the officer’s testimony reveals that it was admitted either to bolster the credibility or weight of Tolbert’s testimony or to rebut perceived charges of recent fabrication in response to influence being brought to bear on Tolbert.
Tolbert communicated his story to the police when he was arrested on a capias warrant on or about August 1, 1979. Tolbert testified at trial that he believed defendant’s brother and some other people called the police and told them where to find Tolbert, who was hiding because he knew an outstanding warrant existed. After his arrest, he told the police that he knew who had killed Ms. Howard, in an effort to "do” to Ms. Howard’s accomplices what they had done to him. Tolbert also testified that he had been in an altercation with defendant because Tolbert sold some "dummy” dope which he told the buyer came from defendant. Thereafter, approximately five days before Tolbert’s arrest, defendant and five friends, all but one of whom were armed, beat Tolbert. Finally, Tolbert testified that he discussed the attempted robbery during which Ms. Howard was killed with the police in an attempt to get a good deal with regard to the capias warrant.
Tolbert’s testimony as to the restaurant meeting was attacked by defense counsel because Tolbert’s signed statement contained no mention of the subject. The officer was asked whether Tolbert had mentioned the meeting in an apparent effort to convince the jury that Tolbert had not fabricated the testimony after his first conversation with the police on August 1, 1979. Thus, the prosecutor sought to introduce evidence of a prior consistent statement to rehabilitate Tolbert’s credibility by countering the effect of the signed (prior inconsistent) statement containing no mention of the restaurant meeting.
In Brown v Pointer, 390 Mich 346; 212 NW2d 201 (1973), a defendant’s testimony was impeached by the introduction of a written affidavit. Following the defendant’s further testimony that the statements in the affidavit were untrue, another witness testified that defendant had made a prior statement consistent with his trial testimony. On appeal, the Michigan Supreme Court noted that, although consistent statements of a witness are generally not admissible as substantive evidence, they are allowed for the limited purpose of rebutting charges of recent fabrication.
"It has been said, however, that they are often 'allowed a limited admissibility for the purpose of supporting the credibility of a witness, particularly to show that a witness whose testimony has allegedly been influenced told the same story before the influence was brought to bear.’ McCormick, Evidence (2d ed), § 251, p 604. The authors of this recent revision of McCormick assert that the trend of decision supports the admission of consistent statements; they reason that '[t]he witness can be cross-examined fully. No abuse of prepared statements is evident. The attack upon the witness has opened the door.’ McCormick, Evidence, op cit.” 390 Mich 346, 351-352.
In Brown, the Supreme Court upheld the lower court’s ruling admitting evidence of the prior consistent statement. Our review of the record in the instant case leads us to a similar conclusion. When Tolbert first spoke to Officer Smith, he allegedly told Smith about the restaurant meeting. Because that meeting was not noted in the signed statement memorializing Tolbert’s interview with Smith, Tolbert’s credibility was attacked by the implication that he had fabricated that portion of his testimony after his first meeting with Smith, in an attempt to secure a better deal with regard to the capias warrant. Under these circumstances, Smith’s testimony was admissible, not as substantive evidence, but for the limited purpose of rehabilitating Tolbert’s credibility after the defense charge of recent fabrication.
The final issue requiring discussion is defendant’s remand request. The evidentiary hearing requested by defendant is argued to be necessary to determine whether defendant’s trial counsel should have insured the appearance at trial of the individuals allegedly present in the restaurant when the robbery was planned. Defendant alleges that he was not there. Tolbert testified that he was. Defendant stated at trial that he did not participate in the attempted robbery or talk with Tolbert about it after the fact. No one was able to identify defendant as being at Godlove’s house. It thus appears that the production of the requested witnesses could have materially aided the jury in resolving the question of defendant’s guilt.
Under People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973), we remand for the hearing requested by defendant. Implicit in this conclusion is our finding that the issue was not waived by defendant’s failure to seek such a hearing before appeal. Because the issue questions the effective assistance of trial counsel, it would not be fair to require trial counsel to have sought such a hearing regardless of whether the judge would have granted it. Further, GCR 1963, 817.6(1) mandates that a motion to remand be granted if it "identifies an issue sought to be reviewed on appeal, and shows that a testimonial record must be developed to support the issue or that the issue should be initially decided by the trial judge”. While the mandatory nature of the rule is inapplicable here for failure to file the motion within the time provided, this Court has the discretion to grant a motion to remand which is filed later in the appellate process. People v McCall, 403 Mich 858 (1978).
On remand, the trial court is to conduct an evidentiary hearing and make findings on tbe question whether trial counsel’s failure to call as witnesses some or all of the individuals allegedly present at the restaurant while the robbery was being planned deprived the defendant of the effective assistance of counsel and significantly affeeted the outcome of the trial.
Defendant’s remaining allegation of error does not require discussion.
Remanded for proceedings consistent with this opinion, We retain jurisdiction.
D. C. Riley, P.J., concurred. | [
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R. R. Ferguson, J.
Defendant was convicted by a jury of first-degree felony murder, MCL 750.316; MSA 28.548, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to mandatory prison terms of life for the murder conviction and two years for the felony-firearm conviction. He appeals as of right. We affirm.
Two witnesses testified that as they entered a bar they saw defendant and another individual, identified as defendant’s brother, standing outside. Shortly thereafter, two men entered the bar and announced a holdup. One of the men, wearing a ski mask which covered his face, carried a rifle. The other man, wearing nothing over his face, carried a handgun. One of the witnesses testified that defendant was the man wearing the ski mask. The second witness testified that he saw defendant and the other individual in the vestibule of the bar immediately before the holdup. The bar patrons were told to lie on the floor and the perpetrators began collecting their wallets. During the course of the robbery, one Raymond Pertile struggled with the masked man and was shot several times, apparently by the other perpetrator. He died' of multiple gunshot wounds.
The primary issue on appeal concerns the identification of defendant. Both witnesses who identi fied defendant at trial also testified that they identified him as one of the two perpetrators of the crime at a hearing conducted approximately five months prior to trial. Although the nature of that hearing was not disclosed to the jury, the reference was to a probation revocation hearing. Defendant contends that it was error to allow the witnesses to testify as to the earlier identification because defendant was not represented by counsel at that hearing.
Defendant failed to object to any of the testimony concerning the pretrial identification on the basis that it was obtained in the absence of counsel. Appellate review is, therefore, precluded absent a finding of manifest injustice. People v Moss, 397 Mich 69; 243 NW2d 254 (1976); People v King, 107 Mich App 208, 210; 309 NW2d 207 (1981). We find no manifest injustice with regard to the testimony of the first witness because the testimony was first elicited by defendant on cross-examination. Prior to this time, the prosecutor had informed both the court and defense counsel that he would not question either witness about the hearing during direct examination. It is apparent upon a review of the record that defense counsel elicited the testimony in an attempt to suggest that the witness’s in-court identification should be discredited because it was based upon the prior identification. We believe this to be a matter of trial strategy with which we will not interfere. People v King, supra. It would be unfair for defendant to be able to suggest that the witness’s in-court identification was tainted as being based only on an out-of-court observation and preclude the prosecutor from questioning the witness further in an attempt to rehabilitate her on redirect examination. We find no manifest injustice in the admission of this testimony.
It was the prosecutor who first elicited the testimony concerning the pretrial identification from the second witness. Although it may have been improper for the prosecutor to elicit this testimony on direct examination, we find no manifest injustice. It is apparent through defense counsel’s questioning of the first witness that it was his strategy to use the pretrial identification to discredit the witnesses’ in-court identifications. He opened the door to this line of questioning.
Defendant next asserts that the trial court erred in allowing two police officers to testify, over a hearsay objection, that the man several witnesses identified in a lineup as being one of the perpetrators was named Joseph Hunt, defendant’s brother. Each of those witnesses testified that he or she identified Joseph Hunt as one of the perpetrators. Defendant’s only objection is that the officers could not testify as to the name of the person identified because that would be hearsay. Although the courts of this state have not addressed this particular issue, it has been held that evidence of a name by which a person is known is not within the rule excluding hearsay evidence. See State v Shields, 619 SW2d 937 (Mo App, 1981), and authorities cited therein. The officers’ testimony was not inadmissible on hearsay grounds.
Defendant next argues that the trial court’s instruction on felony-firearm requires reversal. We disagree. Since no objection was made to the instruction, reversal is not warranted unless the court failed to instruct on an essential element of the offense or a basic or controlling issué, or the instruction is so misleading and confusing as to result in a miscarriage of justice. In thé present case, the court read the felony-firearm statute, MCL 750.227b; MSA 28.424(2), and the informa tion to the jury. We find this was sufficient. The statute clearly states the two elements of the offense, namely, that defendant carried or possessed a firearm, and that the firearm was carried or possessed during the commission of any felony or attempted felony. Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374, 397-398; 280 NW2d 793 (1979). We reject defendant’s argument that the court’s failure to state that defendant must knowingly carry or possess the firearm was fatal. We also reject defendant’s claim that the court’s failure to define "firearm” requires reversal. Although the trial court failed to give CJI 11:9:01, subds (6) and (9), which define firearm, those subsections are optional and are to be given only where a clarifying instruction is warranted. Inasmuch as defendant never argued that the rifle in question was not a firearm, the trial court was not required to give CJI 11:9:01, subds (6) and (9), and its failure to do so will not constitute error.
Defendant also claims that the jury’s verdict was ambiguous and should be set aside. The jury found defendant guilty of "felony murder, robbery armed”. Defendant contends that the verdict is ambiguous because it fails to state whether defendant was guilty of first- or second-degree murder. Although the court did not use the phrase "felony murder” in defining first-degree murder, it did state that to find defendant guilty of first-degree murder the jury must find that at the time of the act which caused the death of Pertile, the defendant was committing or attempting to commit or assisting another in the commission of the crime of armed robbery or larceny. At another point in the instructions the court read the first-degree murder statute and instructed the jury that they could find defendant guilty of that crime only if they found that it was committed during the perpetration of a larceny or an armed robbery. Finally, the jury was given a verdict form containing seven possible verdicts. Included within those verdicts was a finding of guilty of felony murder, armed robbery; guilty of felony murder, larceny; or guilty of murder in the second degree. The jury found defendant guilty of felony murder, armed robbery.
A jury verdict will not be void for uncertainty if the jury’s intent can be clearly deduced by reference to the pleadings, the counts charged and the entire record. People v Rand, 397 Mich 638, 643; 247 NW2d 508 (1976). Viewing the record as a whole, we find no ambiguity in the jury’s verdict.
Defendant’s final contention on appeal is that he was denied the effective assistance of counsel. In particular, defendant contends that trial counsel should have moved to suppress evidence of the prior identifications, should have moved to suppress evidence of his prior convictions and should have obtained a clarification of the jury’s verdict. In light of our earlier determination that trial counsel’s use of the prior identifications was a matter of trial strategy, we do not find that the failure to move to suppress those identifications constitutes ineffective assistance of counsel. People v Currelley, 99 Mich App 561; 297 NW2d 924 (1980), lv den 411 Mich 904 (1981). Also, in light of our earlier determination that the jury verdict was not ambiguous, we find no ineffective assistance on counsel’s part for his failure to seek a clarification.
Appellate counsel also asserts that, but for trial counsel’s failure to suppress evidence of defendant’s prior convictions, defendant would have testified at trial and, presumably, would have had a reasonable likelihood of acquittal. This conten tion is not borne out by the record. In pretrial pleadings, counsel indicated that defendant was not going to testify at trial. In a motion for a temporary restraining order filed prior to trial, counsel specifically stated that defendant was not going to take the stand in his own defense. It is reasonable to conclude that trial counsel did not move to suppress evidence of defendant’s convictions because defendant was not going to take the stand. Defense counsel need not make unnecessary motions. In summary, we do not find trial counsel ineffective for his failure to move for a clarification of the verdict. We do not find that any of these claimed errors constitute a "serious mistake” the absence of which would have given defendant a reasonable likelihood of acquittal. People v Garcia, 398 Mich 250; 247 NW2d 547 (1976); People v Means (On Remand), 97 Mich App 641; 296 NW2d 14 (1980).
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J. H. Gillis, J.
This is an appeal from a decision of the Michigan Tax Tribunal. It involves the petitioner’s right to tax exemptions for numerous parsonages occupied by rabbis and their families. The respondent denied all but one of the claimed exemptions. On appeal to the Tax Tribunal, however, all of the exemptions were granted. Respondent appeals as of right.
Congregation B’nai Jacob is a Michigan corporation duly organized and existing under MCL 450.178 et seq.; MSA 21.179 et seq. It is "doing business” under the name "Kollel Institute for Advanced Religious Learning”.
The members of Congregation B’nai Jacob are Orthodox Jews. A principal aspect of their faith is the belief that no form of motorized transportation may be used on the Sabbath or any Jewish holiday. To accommodate this belief, the congregation has purchased seven parcels of land adjacent to the Kollel. Rabbis and their families live in the homes on these parcels.
The Kollel itself is described as follows in the parties’ agreed statement of facts:
"Within the Kollel are classrooms, lecture rooms and a library for scholarly inquiry into the Talmud — the organic Jewish law. However, the Kollel is also a fully equipped synagogue with a sanctuary, a copy of the Torah, and all accoutrements necessary to function as a viable Orthodox synagogue. In fact, the Kollel is used as a synagogue in order to celebrate the Jewish Sabbath as well as all holy days or festivals. All Jewish religious functions as well as weddings, Barmitzvahs, [and] circumcision of male children * * * are celebrated at the Kollel.”
In 1977, petitioner requested tax exemptions for seven parcels of land, six on which rabbis live with their families, and the Kollel. The city granted the exemption for the Kollel, but denied the others. Tax exempt status for five residential parcels for 1978 is also at issue.
Pursuant to the fifth subsection of MCL 211.7; MSA 7.7, "[a]ll houses of public worship, with the land on which they stand, the furniture therein and all rights in the pews, and also any parsonage owned by any religious society of this state and occupied as such” is entitled to tax exempt status. The issue raised by this case is whether more than one parsonage per "religious society” may be exempted. Respondent denied the exemptions; the Tax Tribunal construed the statute as permitting such exemptions.
On appeal from a Tax Tribunal decision, this Court is "bound by the factual determinations of the Tribunal. Ironwood v Gogebic County Board of Comm’rs, 84 Mich App 464, 469; 269 NW2d 642 (1978). Where, as here, no fraud is alleged, our review is limited to the question of whether the Tribunal committed an error of law [or] adopted a wrong principle. Consolidated Aluminum Corp, Inc v Richmond Twp, 88 Mich App 229, 231; 276 NW2d 566 (1979), Const 1963, art 6, § 28”. Michigan National Bank, Lansing v City of Lansing, 96 Mich App 551, 553; 293 NW2d 626 (1980).
The Tribunal’s decision granting the exemptions reasoned as follows: (1) the rabbis assigned to petitioner’s congregation are members of the clergy who reside on the land in question; (2) the rabbis are duly ordained and thus the properties are parsonages; (3) the statute’s language exempting "any” parsonage connotes an unlimited number of parsonages; (4) the lack of a limit coupled with the actual good faith use of the property in an appropriate manner requires that the property be exempted; (5) such a result will not lead to abuse of the law because financial considerations will naturally limit the number of "parsons” a congregation can afford; and (6) abuse, if any, should be remedied by the Legislature.
There being no dispute that the rabbis are duly ordained or that they are each equally responsible for the religious needs of the congregation, we agree that the houses occupied by the rabbis are parsonages. See, St Joseph’s Church v Detroit, 189 Mich 408, 413; 155 NW 588 (1915). The critical issue is whether the Tax Tribunal correctly determined that a given congregation may have multiple tax exempt parsonages. In line with the Tribunal’s reasoning, we think that such multiple exemptions are within the scope of the statute.
Exemptions, as the antithesis of tax equality, are to be strictly construed. Asher Student Foundation v East Lansing, 88 Mich App 568, 571; 278 NW2d 675 (1979), lv den 406 Mich 999 (1979). However, as the Tax Tribunal recognized, "[t]he language of the Legislature in exempting from taxation is as much entitled to obedience as that imposing taxation”. Detroit Home & Day School v Detroit, 76 Mich 521, 525; 43 NW 593 (1889).
The statute in question, MCL 211.7; MSA 7.7, states that "any” parsonage may be exempted from taxation. It does not state that the parsonage or a parsonage is tax exempt, despite the fact that "any” is generally defined as meaning more than one. See, e.g., Webster’s Third New International Dictionary (1965), p 97; Black’s Law Dictionary (4th ed, 1951), p 120. See, also, Harrington v Inter-State Business Men’s Accident Ass’n, 210 Mich 327, 330-331; 178 NW 19 (1920).
As was stated in Fuller Central Park Properties v City of Birmingham, 97 Mich App 517, 524; 296 NW2d 88 (1980):
"The primary rule of statutory construction is that the Legislature is presumed to have intended the plain meaning of the words used by it. In interpreting statutes, all words and phrases should be construed according to the common and approved usage of the language. Correct and proper interpretation means giving effect to every word of the statute. Every effort must be made to avoid declaring any portion of the Legislature’s language to be surplusage.” (Footnotes omitted.)_
If the word "any” is to be given its common and approved usage, it must be construed as meaning more than one. This gives effect to every word in the statute without reaching a nonsensical or strained result. If such a construction leads to abuse by taxpayers, the Legislature will have to remedy that situation when it arises. We can do no more than apply the statute as it is written.
Affirmed.
Now, MCL 211.7(e); MSA 7.7(e).
The parties have stipulated that no fraud is alleged.
The parties stipulated to this fact, and it is one upon which we place substantial reliance in resolving the issue.
"[T]he word 'any’ has a well defined meaning not only to the laity but also to the courts. This court has on at least two occasions considered it. In Hopkins v Sanders, 172 Mich 227, where the word 'any’ was found in an act, this court, speaking through Justice Steere and having reference to the act, said:
" 'In broad language it covers "any final decree” in "any suit at law or in chancery” in "any circuit court.” "Any” means "every,” "each one of all,” ’ * * 210 Mich 330. | [
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T. M. Burns, P.J.
Defendants appeal as of right a May 24, 1979, lower court order denying their motion to set aside a default judgment entered in favor of plaintiff in an action by plaintiff for recovery on a promissory note. We affirm.
Under the provisions of GCR 1963, 520.4, a default judgment may be set aside by a trial judge in certain circumstances:
"For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 528 [GCR 1963, 528]. If personal service was made upon the party against whom the default was taken, it shall not be set aside unless application to have it set aside is made either before the entry of judgment or within 4 months after the default was regularly filed or entered except as provided in Rule 528. Any order setting aside such default shall be conditioned upon the party against whom the default was taken paying the taxable costs incurred by the other party in reliance upon the default, except as prescribed in subrule 526.8 [GCR 1963, 526.8]. Other conditions may be imposed as the court deems proper. A proceeding to set aside default or a default judgment, except when grounded on want of jurisdiction over the defendant, shall be granted only if good cause is shown and an aifidavit of facts showing a meritorious defense is filed.”
Plaintiff filed the instant action for recovery on a $15,000 promissory note bearing an interest rate of 7-1/2% per annum on October 17, 1977. According to its terms, the note was due and payable on February 19, 1974. Although served with a summons and complaint, defendants failed to answer or otherwise appear. On December 8, 1977, a default judgment was taken in favor of plaintiff against defendants in the amount of $21,233.96, which represented the amount of the principal due and owing at an interest rate of 7-1/2% per annum from the date of the note, February 19, 1973. The default judgment also provided for the recovery of interest at the rate of 7-1/2% per annum from the date of the judgment to its satisfaction.
Approximately one year after judgment was taken, on December 6, 1978, defendants filed a motion to set it aside. In their motion, defendants alleged that the note’s interest rate of 7-1/2% per annum violated the state usury law. MCL 438.31; MSA 19.15(1). Defendants requested, in the alter native, either that the default judgment be set aside and they be granted a new trial, or that the interest in the judgment be stricken and that the judgment be amended to permit plaintiff to recover only the amount of the principal of the note. On January 30, 1979, the lower court issued a written opinion denying defendant’s motion and on May 24, 1979, an order denying that motion was issued. Subsequently, defendants filed a motion for a rehearing and reconsideration that was denied on June 18, 1979.
A trial judge’s decision not to set aside a default judgment will not be reversed on appeal absent a clear abuse of discretion. O'Neill v O'Neill, 65 Mich App 332, 336; 237 NW2d 315 (1975). The policy of this state is against setting aside default judgments that have been regularly entered. Zinn v Fischer Distributing Co, 27 Mich App 591; 183 NW2d 859 (1970), lv den 384 Mich 796 (1971).
"Good cause” sufficient to set aside an entry of default under the above cited court rule includes such matters as "(1) a substantial defect or irregularity in proceedings upon which the default was based, (2) a reasonable excuse for failure to comply with the requirements which created the default, or (3) some other reason showing that manifest injustice would result from permitting the default to stand”. Harrison v VMC Building Corp, 71 Mich App 458, 460; 248 NW2d 584 (1976) (quoting 2 Honigman & Hawkins, Michigan Court Rules Annotated [2d ed], Comments, p 662).
We perceive no proper allegation of "good cause” in defendant’s motion that would permit setting aside the default judgment. That is, defendants have not offered a "reasonable excuse” for failing to respond timely to plaintiffs complaint, nor have they shown that a manifest injustice would result if the judgment were not set aside. Although defendants are correct in their argument that the 7-1/2% per annum interest rate on the note exceeded the 7% maximum allowable interest rate in Michigan, see MCL 438.31; MSA 19.15(1), defendants fail to cite any reason why this usury defense, which is in the nature of an affirmative defense that must be raised in a party’s first responsive pleading, was not timely asserted. Further, defendants failed to comply with the prerequisites for setting aside a default judgment when they neglected to attach an affidavit of facts showing a meritorious defense to their motion to set aside the default judgment. GCR 1963, 520.4. Kiefer v The Great Atlantic & Pacific Tea Co, Inc, 80 Mich App 590, 595; 264 NW2d 71 (1978). Under these facts then, we must affirm the lower court order denying defendants’ motion to set aside the default judgment. We cannot say that the lower court’s ruling in this matter was an abuse of discretion.
However, there is one aspect of the default judgment that we cannot affirm. The Michigan statute providing for interest on money judgments, MCL 600.6013; MSA 27A.6013, states in pertinent part:
"Interest shall be allowed on any money judgment recovered in a civil action, such interest to be calculated from the date of filing the complaint at the rate of 6% per year unless the judgment is rendered on a written instrument having a higher rate of interest in which case interest shall be computed at the rate specified in the instrument if such rate was legal at the time the instrument was executed. In no case shall the rate exceed 7% per year after the date judgment is entered * *
Pursuant to the provisions of this statute, defendants’ failure to raise their usury defense in their first responsive pleading cannot serve to authorize interest above the legal rate on the note from the date of plaintiffs complaint to the date that the judgment is satisfied. Therefore, that portion of the default judgment permitting interest at the rate of 7-1/2% per annum from the date that plaintiff filed her complaint to the date that the judgment is satisfied must be vacated. Alpine Construction Co v Gilliland, 50 Mich App 568; 213 NW2d 824 (1973). Plaintiff is entitled to recover interest computed only at the rate of 6% per annum from October 17, 1977, the date that she filed her complaint, to the date that the judgment is satisfied.
Affirmed as modified.
MCL 600.6013; MSA 27A.6013 was amended by 1980 PA 134 (effective June 1, 1980) and now provides for assessment of interest at the rate of 12% per annum on civil judgments. However, the amendatory act was not in effect at the time that judgment was entered in this case and does not affect our result. | [
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R. M. Maher, P.J.
The plaintiff was injured in an automobile accident on June 7, 1975. The defendant, Detroit Automobile Inter-Insurance Exchange (hereinafter DAIIE), was his no-fault insurer and paid him personal protection benefits for lost wages and medical expenses until February 10, 1976, when payment was terminated. On September 28, 1976, the plaintiff commenced suit against DAIIE in the Common Pleas Court for the City of Detroit for the overdue payments. The Common Pleas action was scheduled for trial on January 4, 1979. By the date of trial, the amounts allegedly owed the plaintiff exceeded the jurisdictional amount of $10,000. By agreement of the parties, the Common Pleas action was adjourned and consolidated with a circuit court action. Plaintiff commenced action in the Wayne County Circuit Court on January 31, 1979, claiming the withheld benefits, attorney fees, interest and damages for mental anguish resulting from defendant’s malicious breach of the insurance contract.
A jury trial was conducted on June 12 to 15, 1979. The jury awarded plaintiff a recovery of $5,789.30 for medical benefits, $20,228.41 for wage loss benefits, and $20,000 for "emotional distress and/or mental anguish”, for a total of $46,017.71. Subsequent to a hearing on plaintiff’s motion for entry of judgment, the trial court entered a judgment on the jury award for $46,107 together with 12 percent interest on the personal protection insurance benefits, as provided by MCL 500.3142(3); MSA 24.13142(3), and six percent interest on the amount of damages for mental anguish. The trial court also ordered the payment of $10,945 as attorney fees with 12 percent interest and $396.10 as costs with six percent interest, the interest in both instances to accrue from the date of judgment until its satisfaction. From this judgment, the defendant DAIIE appeals as of right.
The plaintiff was employed by the Ford Motor Company prior to the accident. He had an ulcer and had been injured previously in automobile accidents which occurred in 1962 and 1973. In 1968, plaintiff had surgery to repair a hernia. On June 7, 1975, plaintiff’s automobile was struck in its side by a pickup truck. Mr. Liddell suffered a broken nose and a fractured thumb, as well as three broken ribs. Subsequently, Mr. Liddell visited various physicians for various complaints including ringing in his ears, migraine headaches, stammering, disequilibrium, anxiety, depression, a bleeding ulcer, and sleep disturbance. In March of 1976, the plaintiff began seeing Dr. Lee, a psychiatrist, who treated him with psychoanalysis and chemotherapy for severe depression, which Dr. Lee felt had been precipitated by the accident of June 6, 1975.
On February 9, 1976, plaintiff went to Dr. Sadzikowski, his employer’s doctor, for a complete physical examination. Dr. Sadzikowski determined that plaintiff was capable of returning to work as of February 10, 1976, and sent DAIIE an unsolicited letter to that effect. Without checking further, DAIIE notified plaintiff of its decision to stop payment as of February 13, 1976, absent further medical proof that his condition was caused by the accident. On February 26, 1976, DAIIE received a report from Dr. Imperio that plaintiff had been hospitalized for a condition related to the accident. Defendant did not contact Dr. Imperio. Dr. Lee submitted a letter to defendant on April 5, 1976, wherein he related plaintiff’s condition to the accident. Despite this, DAIIE informed Mr. Liddell on April 13, 1976, that his disability was not related to his accident, so benefits were not forthcoming.
The first issue for our consideration is whether plaintiff can recover damages for mental anguish resulting from the breach of a no-fault insurance contract.
In Miholevich v Mid-West Mutual Auto Ins Co, 261 Mich 495, 498; 246 NW 202 (1933), the Michigan Supreme Court stated the rule for damages which are generally recoverable for a breach of contract: such damages which may fairly and reasonably be considered as arising naturally from the breach of contract itself, or such as may reasonably be supposed to have been within the contemplation of both parties at the time the contract was made, as the probable result of its breach. This is based on the classic case of Hadley v Baxendale, 9 Exch 341; 156 Eng Rep 145 (1854), which divides contract damages into two categories: "general”, or those which arise naturally from the breach, and "consequential”, which may reasonably be supposed to have been within contemplation of the parties when they entered into the contract. The Court in Miholevich then went on to allow plaintiff to recover damages for the "shame and mortification” which resulted from his arrest on a body execution when the defendant insurance company defaulted in paying a judgment under a liability insurance policy on plaintiff’s automobile. Under the law then existing, it was foreseeable that the insured would be subject to arrest for nonpayment, so plaintiff could recover for "consequential” damages.
In Stewart v Rudner, 349 Mich 459; 84 NW2d 816 (1957), the Supreme Court distinguished between those contracts which are purely commercial or pecuniary in nature, where damages for mental distress were "too remote” and not within the contemplation of the parties, and those contracts which are more personal in nature, where the injury to feelings is compensable because they .proceed "directly and naturally” from the breach. The latter type of contract would include actions for breach of promise to marry, breach of contract for lodging at a hotel, and breach of contract for burial. The Court went on to permit plaintiffs to recover for mental distress where a physician breached his contract to deliver a child by Caesarian section, resulting in the death of the infant. The Court summarized its reasoning as follows:
"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.” Id., 471.
In Jankowski v Mazzotta, 7 Mich App 483; 152 NW2d 49 (1967), this Court noted that mental suffering has long been recognized as an element in tort actions. See, e.g., Fishett v State Farm Mutual Automobile Ins Co, 3 Mich App 688; 143 NW2d 612 (1966). However, damages for mental anguish in contract cases were usually restricted to situations where there was wanton or reckless misconduct, or where the contract is of a very personal nature. In Jankowski, the defendants alleged that plaintiff, a building contractor, had deviated from specifications on the custom house he was hired to build, resulting in extreme mental anguish to the defendants. In upholding the trial court’s decision striking the request for damages for mental anguish, the Court reasoned as follows:
"The merits of these claims are not before this Court, and we make no decision on the mertis except that the 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.” Jankowski v Mazzotta, supra, 487.
In the same vein, Isagholian v Carnegie Institute of Detroit, Inc, 51 Mich App 220; 214 NW2d 864 (1974), involved a plaintiff who sued his former employer for breach of an employment contract, a situation inherently fraught with distress. In rejecting his claim for damages based on the resulting mental anguish, the Court stated that a prerequisite to recovery for mental suffering in a contract action is that the agreement contains not even an "’iota of the commercial’”. Id., 222, quoting Stewart v Rudner, supra, 472.
Two more recent decisions of this Court have analyzed the problem similarly. In Riggs v Fremont Mutual Ins Co, 85 Mich App 203; 270 NW2d 654 (1978), this Court held that a contract to insure a dwelling against a fire loss is not a contract of a personal nature, and thus plaintiffs were not entitled to recover exemplary damages when payment was denied based on defendant’s belief that plaintiffs had themselves set the fire. The Court added that the insurer had not acted maliciously, recklessly, or negligently by defending against what it believed was a fraudulent claim.
In Fletcher v Aetna Casualty & Surety Co, 80 Mich App 439; 264 NW2d 19 (1978), plaintiff’s ward was severely injured when the motorcycle on which he was riding collided with an uninsured motorist. Plaintiff attempted to "stack” uninsured motorist coverage on policies issued to both herself and her husband by Aetna. Aetna rejected plaintiff’s claim for $40,000, and refused to pay the $20,000 which it admittedly owed unless plaintiff executed a release of all claims against Aetna, including the claim that uninsured motorist coverages could be "stacked”. On appeal, plaintiff claimed exemplary damages for Aetna’s refusal to pay. This Court said:
"It is also argued by plaintiff that an award for exemplary damages should have been rendered against Aetna. In support of that position, plaintiff urges that Aetna acted in bad faith when it refused to pay the amount of its admitted liability. However, bad faith alone will not entitle an aggrieved party to recover exemplary damages from one who breaches a contract. Rather, the nature of the contract must be examined to ascertain whether it concerns 'matters of mental concern and solicitude’. Stewart v Rudner, 349 Mich 459, 471; 84 NW2d 816, 824 (1957).
"Assuming arguendo that Aetna’s breach was intentional, nevertheless, we conclude that the nature of the contract would not sustain an award of exemplary damages. The character of the contract is pecuniary only. Upon the occurrence of specified events, Aetna was to become liable for nothing more than the payment of money. While a breach by Aetna would cause plaintiff some degree of annoyance, that can be said to arise in almost every context in which a breach of contract occurs. * * * The contract in the case under review does not possess the foregoing qualities that would entitle plaintiff to exemplary damages against Aetna.” Id., 444-445.
Inexplicably, there are other cases where this Court has expanded on the holding of Stewart v Rudner, supra, by permitting a recovery of damages for mental distress in actions for breach of insurance contracts which are essentially pecuniary in nature. In McCune v Grimaldi Buick-Opel, Inc, 45 Mich App 472; 206 NW2d 742 (1973), the defendant was late in remitting its portion of the plaintiff-employee’s Blue Cross payment, resulting in cancellation of his policy. The plaintiff sought to recover, inter alia, for mental anguish, humiliation, embarrassment, and harassment by medical creditors which occurred as a result of defendant’s breach. This Court held that such damages would be appropriate, since the contract did not deal with "trade and commerce”, but with hospital and medical insurance, the provision of which is a matter of "mental concern and solicitude” to most family heads.
In Seaton v State Farm Life Ins Co, 75 Mich App 252; 254 NW2d 858 (1977), this Court held that defendant’s refusal to pay the proceeds of a life insurance policy entailed a matter of "mental concern and solicitude” and said that the jury should be instructed on mental anguish as an element of damages upon retrial.
In Palmer v Pacific Indemnity Co, 74 Mich App 259; 254 NW2d 52 (1977), the defendant failed to appeal a medical malpractice judgment which greatly exceeded the policy limits. This Court concluded that the failure to appeal constituted a breach of the contractual duty to defend, and that the plaintiffs mental distress stemming from the failure to appeal would be considered foreseeable and could properly be submitted to the jury.
After submission of the instant case, the Supreme Court clarified the issue in Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401; 295 NW2d 50 (1980). In Kewin, plaintiff brought suit for breach of a disability insurance contract. After a jury trial, a verdict of $16,500 was returned under the contract. In addition, plaintiff was awarded $75,000 for mental or emotional distress and $50,000 as exemplary damages. On appeal, this Court held that the contract involved matters of mental concern and solicitude and that damages for mental distress were properly recoverable. It was further held, however, that the damages for mental distress and the exemplary damages could not both be recovered as they were for the same mental anguish, and the $75,000 award for mental distress was vacated.
On further appeal of the case, the Supreme Court began by stating that, in general, damages for mental distress are not recoverable in an action for breach of contract. Exceptions were noted, including the case of Stewart v Rudner, supra. The Court then contrasted the wholly noncommercial situation presented in Stewart with the case of a disability insurance contract:
"The nature and object of the agreement justified the treatment accorded it in Stewart. A contract to perform a Caesarean section is not a commercial contract in which pecuniary interests are most important. Rather, such a contract involves 'rights we cherish, dignities we respect, emotions recognized by all as both sacred and personal’. Stewart, 469. Where such interests are invaded by breach of a contract meant to secure their protection, mental distress is a particularly likely result. Flowing naturally from the breach, these injuries to the emotions are foreseeable and must be compensated despite the difficulty of monetary estimation.
"Insurance contracts for disability income protection do not come within the reach of Stewart. Such contracts are commercial in nature; they are agreements to pay a sum of money upon the occurrence of a specified event, Secor v Pioneer Foundry Co, 20 Mich App 30, 35; 173 NW2d 780 (1969); 14 Michigan Law & Practice, Insurance, § 71, p 50. The damage suffered upon the breach of the agreement is capable of adequate compensation by reference to the terms of the contract. We recognize that breach of the insurance contract, as with almost any agreement, results in some annoyance and vexation. But recovery for those consequences is generally not allowed, absent evidence that they were within the contemplation of the parties at the time the contract was made. 22 Am Jur 2d, Damages, § 64, p 97. See, also, Scottish Union & National Ins Co v Bejcy, 201 F2d 163, 166 (CA 6, 1953).” Kewin, supra, 416-417.
The Court in Kewin then addressed whether Miholevich v Mid-West Mutual Automobile Ins Co, supra, provided an exception to the general rule and entitled plaintiff to recover for mental distress. As noted above, Miholevich involved an automobile collision liability insurance policy in which the insurance company agreed to satisfy judgments against the plaintiff arising from the use of his automobile. The company wilfully refused to pay such a judgment and plaintiff was arrested under the law as it then existed. Plaintiffs claim for mental distress damages was upheld on the basis that such damages were within the contemplation of the contracting parties. Since the law provided for plaintiffs arrest for nonpayment of such judgments, it was presumed the contract was entered into with an eye toward protecting against such an event. Applied to the facts in Kewin, the Court held that damages for mental distress were not similarly shown to have been within the contemplation of the parties, nor did they flow naturally from the breach of the disability insurance contract. Kewin, supra, 417-419.
Summarizing the analysis of these two exceptions to the general rule of nonrecovery, the Kewin Court concluded:
"For the above reasons, we hold that a disability income protection insurance policy contract is a commercial contract, the mere breach of which does not give rise to a right to recover damages for mental distress. The damages recoverable are those damages that arise naturally from the breach, or which can reasonably be said to have been in contemplation of the parties at the time the contract was made. Absent proof of such contemplation, the damages recoverable do not include compensation for mental anguish.” Kewin, supra, 419.
In our view, a contract for no-fault insurance benefits, like uninsured motorist coverage and disability insurance, is a pecuniary contract requiring the insurance company to pay certain sums upon the occurrence of a specified event. It is not the type of personal contract into which one enters to have a certain type of service performed, the omission of which will foreseeably result in mental distress. Nor can it be said that the damages for mental anguish which plaintiff recovered were within the contemplation of the parties. We consider that "pure” contract cases calling for payment of funds upon the occurrence of a certain event such as Palmer and Seaton have impermissibly broadened the scope of Stewart v Rudner. Accordingly, we vacate that portion of the judgment which was awarded on the basis of "emotional distress and/or mental anguish”.
The second issue is whether the trial court erred in its findings that defendant unreasonably refused to pay benefits to the plaintiff, thereby awarding attorney fees to the plaintiff.
The plaintiff prayed for and received attorney fees, which a court may award for unreasonable refusal to pay or delay in making payments under the no-fault act. MCL 500.3148(1); MSA 24.13148(1) provides:
"Sec. 3148. (1) An attorney is entitled to a reasonable fee for advising and representing a claimant in an action for personal or property protection insurance benefits which are overdue. The attorney’s fee shall be a charge against the insurer in addition to the benefits recovered, if the court finds that the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment.”
While the terms "unreasonably refused” and "unreasonably delayed” are not further defined, the case law indicates that a delay is not unreasonable where it is the product of a legitimate question of statutory construction, constitutional law, or even a bona fide factual uncertainty. See Davidson v Johnson, 76 Mich App 497, 504; 257 NW2d 139 (1977), on reh 79 Mich App 660, 666-667; 262 NW2d 887 (1977), Richards v American Fellowship Mutual Ins Co, 84 Mich App 629, 635; 270 NW2d 670 (1978), Lewis v Detroit Automobile Inter-Ins Exchange, 90 Mich App 251, 257; 282 NW2d 794 (1979).
The trial court’s finding of unreasonableness on the part of the insurance company will be disturbed on appeal only if that finding is clearly erroneous. GCR 1963, 517.1; Motorists Mutual Ins Co v Howard, 21 Mich App 146, 149; 175 NW2d 351 (1970).
The record indicates that defendant received an unsolicited report from Dr. Sadzikowski which indicated that plaintiff was capable of returning to work as of February 10, 1976. However, defendant received subsequent reports from Dr. Lee and Dr. Imperio indicating that plaintiff was unable to work as a result of the accident. The testimony of Mr. Anderson, defendant’s claim adjuster, indicated that defendant did not attempt to contact these physicians or in some other way attempt to ascertain the true situation in face of the contradictory reports. We cannot, therefore, conclude that the trial court’s finding that defendant’s conduct was unreasonable was "clearly erroneous”, and so we.affirm the trial court’s determination that plaintiff was entitled to recover attorney fees.
Next, we must decide whether the trial court erred by basing the amount of attorney fees awarded to the plaintiff on his contingent fee contract with the attorney, where there was no showing of the actual services performed.
The previously quoted statute, MCL 500.3148(1); MSA 24.13148(1), permits the attorney to recover "a reasonable fee for advising and representing a claimant”. The statute does not elaborate, and there is no case law construing this provision.
The plaintiff argues that the contingent fee arrangement is per se reasonable under GCR 1963, 928. However, this court rule is strictly limited to cases involving personal injury and wrongful death, and is therefore not applicable to the instant case, which is essentially a contract action.
Absent a legislative pronouncement on determination of reasonableness, we would adhere to the guideline enumerated in Crawley v Schick, 48 Mich App 728, 737; 211 NW2d 217 (1973), as follows:
"There is no precise formula for computing the rea sonableness of an attorney’s fee. However, among the facts to be taken into consideration in determining the reasonableness of a fee include, but are not limited to, the following: (1) the professional standing and experience of the attorney; (2) the skill, time and labor involved; (3) the amount in question and the results achieved; (4) the difficulty of the case; (5) the expenses incurred; and (6) the nature and length of the professional relationship with the client. See generally 3 Michigan Law & Practice, Attorneys and Counselors, § 44, p 275 and Disciplinary Rule 2-106(B) of the Code of Professional Responsibility and Ethics.”
See, also, Nelson v City of Dearborn, 340 Mich 544; 66 NW2d 78 (1954). While a contingent fee agreement may be considered as one factor in determining the reasonableness of a fee, it is not by itself determinative.
We therefore vacate the amount awarded as attorney fees and remand the issue to the trial court for a hearing where evidence can be submitted on the elements listed above and a new determination of attorney fees rendered.
The defendant’s next contention is that the trial court erred in awarding 12 percent interest on the attorney fees.
MCL 500.3142(3); MSA 24.13142(3) allows recovery of 12 percent interest on overdue personal protection insurance payments. This statute in its entirety provides as follows:
"Sec. 3142. (1) Personal protection insurance benefits are payable as loss accrues.
"(2) Personal protection insurance benefits are overdue if not paid within 30 days after an insurer receives reasonable proof of the fact and of the amount of loss sustained. If reasonable proof is not supplied as to the entire claim, the amount supported by reasonable proof is overdue if not paid within 30 days after the proof is received by the insurer. Any part of the remainder of the claim that is later supported by reasonable proof is overdue if not paid within 30 days after the proof is received by the insurer. For the purpose of calculating the extent to which benefits are overdue, payment shall be treated as made on the date a draft or other valid instrument was placed in the United States mail in a properly addressed, postpaid envelope, or, if not so posted, on the date of delivery.
"(3) An overdue payment bears simple interest at the rate of 12% per annum.”
In the absence of statute authorizing a special interest payment for attorney fees, the standard judgment interest rate of six percent is applicable. MCL 600.6013; MSA 27A.6013. See Schwartz v Piper Aircraft Corp, 90 Mich App 324; 282 NW2d 306 (1979). After redetermining the attorney fee award on remand, the trial court shall limit the interest on the award to six percent.
The final issue on appeal is whether plaintiff is limited in the circuit court action to benefits payable within one year prior to the filing of the complaint, where plaintiff initiated the action in Common Pleas Court and consolidated that action with a circuit court action with the consent of defense counsel.
The no-fault act contains a one-year statute of limitations in MCL 500.3145(1); MSA 24.13145(1) which provides:
"Sec. 3145. (1) An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor’s loss has been incurred. However, the claimant may not recover beneñts for any portion of the loss incurred more than 1 year before the date on which the action was commenced. The notice of injury required by this subsection may be given to the insurer or any of its authorized agents by a person claiming to be entitled to benefits therefor, or by someone in his behalf. The notice shall give the name and address of the claimant and indicate in ordinary language the name of the person injured and the time, place and nature of his injury.” (Emphasis added.)
We find this issue to be without merit for two reasons. First of all, defendant waived the right to raise the statute of limitations defense by failing to assert it in its answer in the circuit court, GCR 1963, 111.7, or by motion, GCR 1963, 116.1(5).
Second, a statute of limitations is tolled when jurisdiction over the defendant is acquired. MCL 600.5856(2); MSA 27A.5856(2). This tolling provision applies when personal jurisdiction is properly established in a court without subject matter jurisdiction and the matter is then renewed in the proper court. Kiluma v Wayne State University, 72 Mich App 446; 250 NW2d 81 (1976). This is especially true when the parties agreed by stipulation to the consolidation of the two actions.
Affirmed in part, reversed in part and remanded for redetermination of the amount to be awarded as attorney fees. We do not retain jurisdiction. No costs.
Other than the fact that the judgment awarded $89.70 more than the verdict for medical benefits and $.41 less for work loss benefits the discrepancy between the verdict and this portion of the judgment is unexplained. | [
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Per Curiam.
The dispute in this case involves the proper attorney fees due and owing to appellant after it was discharged by appellees. The dissent sets out the facts in this case. Judge Kelly also correctly states the black-letter law which provides that findings of fact are not to be disturbed unless they are clearly erroneous. A trial court’s decision is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with the conviction that a mistake has been committed. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976).
When determining disputed attorney fees, there are six factors to be considered by the court. In Crawley v Schick, 48 Mich App 728, 737; 211 NW2d 217 (1973), the Court stated:
"Where the amount of attorney fees is in dispute each case must be reviewed in light of its own particular facts. There is no precise formula for computing the reasonableness of an attorney’s fee. However, among the facts to be taken into consideration in determining the reasonableness of a fee include, but are not limited to, the following: (1) the professional standing and experience of the attorney; (2) the skill, time and labor involved; (3) the amount in question and the results achieved; (4) the difficulty of the case; (5) the expenses incurred; and (6) the nature and length of the professional relationship with the client. See generally 3 Michigan Law & Practice, Attorneys and Counselors, § 44, p 275 and Disciplinary Rule 2-106(B) of the Code of Professional Responsibility and Ethics.”
The appellant in this case contends that the trial court substantially relied on only one of the six factors, time. We do not agree. We are convinced that the court’s $75 per hour figure was not randomly chosen but was the court’s estimation of the Crawley factors. Likewise, the 140-hour figure was the court’s estimation of the time required to collect, analyze, and process the case file. While this Court may have concluded that the appellant had spent more than 140 hours during the period it represented its client or that something more than $75 per hour was an appropriate rate, the trial court’s determination is supportable. We are not left with the conviction that a mistake has been made.
The appellant also claims that the court abused its discretion in determining that certain evidence sought to be elicited from two of the attorneys for appellees was inadmissible. The dissent clearly sets forth the facts regarding this issue. Errors in the exclusion of evidence will not cause a verdict to be reversed unless the refusal to reverse is inconsistent with substantial justice. GCR 1963, 529.1. The evidence which appellant sought to introduce by questioning appellees’ attorneys, and which was excluded, was essentially presented to the court. Need it be noted that the best evidence of the quality of appellant’s work was its file which was before the court. Furthermore, inasmuch as appellant was representing itself, it had a second opportunity, as it were, to place before the court evidence of the quality of its work and its skill as an advocate.
The final issue is whether the judge erred by refusing to disqualify himself pursuant to GCR 1963, 912.2(2), on the basis of personal bias or prejudice against appellant. The judge’s statements showed his displeasure with appellant’s presentation; however, we must determine whether they rose to a level requiring disqualification. Having reviewed the case law in this area, we cannot conclude that the trial judge showed or admitted any personal animus toward appellant. Tyrrell v Tyrrell, 107 Mich App 435; 309 NW2d 632 (1981); People v Lobsinger, 64 Mich App 284, 285; 235 NW2d 761 (1975), lv den 395 Mich 802 (1975). Therefore, disqualification was not required.
Affirmed.
Costs to appellees. | [
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Per Curiam.
Petitioners petitioned the trial court for review of a grievance decision of the Michigan Civil Service Commission which denied the petitioners’ grievance protesting limitations on the "nonduty use” of Michigan State Police departmental vehicles. The trial court denied the petition for review; petitioners appeal by right.
Petitioners’ grievance stems from a 1975 policy change by respondent Michigan Department of State Police (hereafter "respondent”) which placed certain limits on the nonduty use — i.e., driving from home to work and back — of departmental vehicles. The policy statement established that nonduty use would be restricted to employees who were directly involved in the delivery of police services and subject to emergency calls. The statement specifically identified those departmental positions which were certified for nonduty vehicle use based upon the stated criterion. The positions held by the petitioners were not among those certified to continue nonduty vehicle use.
Shortly after the statement was issued, the Michigan State Police Troopers and Sergeants Association and 83 individual officers (not including the petitioners) filed a civil service grievance, challenging the respondent’s decision to exclude their positions from the list of those certified to continue nonduty vehicle use. Before the grievance could be adjudicated, the parties involved reached a settlement agreement which allowed the grievants certain specified nonduty use of their departmental vehicles. A week later, the respondent issued another directive pertaining to vehicle use. The directive reiterated the departmental policy that vehicles were assigned to positions and not to individuals and that those positions which, at that time, were allowed the nonduty use of a vehicle were to be individually evaluated as they became vacant. This, then, was the established policy when the petitioners accepted their present assignments.
Petitioners were assigned to the Private Security and Investigator Section during 1978 and 1979 and, as part of their investigative work, were required to travel extensively throughout the state. Petitioners’ section supervisor allowed them to use the vehicles assigned to the section for nonduty use until ordered to terminate such use in January, 1980. The ensuing grievance followed.
Petitioners’ argument on appeal is twofold: 1) that the trial court reversibly erred in determining that the hearing officer’s decision in favor of the respondent was supported by competent, material, and substantial evidence on the record, and 2) that the trial court should have reversed the hearing officer’s decision because the decision failed to include specific findings of fact regarding each of the arguments the petitioners had raised at the hearing.
We find that the trial court was correct in determining that the hearing officer’s decision was supported by competent, material, and substantial evidence. Respondent’s policy statements, issued before the petitioners accepted their present assignments, clearly reveal that the respondent had committed itself to a department-wide practice of assigning vehicles to positions, not to individuals and limiting the nonduty use of such vehicles to those officers who are subject to emergency call, which the plaintiffs are not. This practice was modified only to the extent of the 1975 settlement agreement which allowed certain employees the nonduty use of their departmental vehicles. Petitioners’ reliance on this agreement is misplaced; petitioners were not parties to that grievance which was settled and the resulting agreement expressly includes only the specified grievants who signed it.
Plaintiffs rely on Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), for the proposition that the respondent’s expressed employment policies justified the petitioners’ belief that, once the respondent granted them the nonduty use of state vehicles, that privilege was irrevocable as long as the petitioners continued to hold their respective positions. In Toussaint, the Michigan Supreme Court held that certain employment practices, such as hiring for an indefinite period of time but having an established policy of discharging only for just cause, can give rise to implied contractual rights in an employee grounded in the employee’s legitimate expectations based on the employer’s statements of policy. Id., 614-615. We find that the Toussaint decision is not relevant here because the rights and duties of the respective parties relative to departmental vehicle use are not regulated by implication. Rather, they are controlled by the express terms of the official policy statements which prohibit the petitioners from enjoying the nonduty use of departmental vehicles. Furthermore, the respondent did not grant the petitioners the nonduty use of their state vehicles, rather, it appears that the petitioners’ section supervisor went beyond the bounds of his authority by allowing the petitioners to engage in such use. This does not counteract the fact that, given the express policies in existence, the petitioners knew or should have known that their positions would not necessarily carry the nonduty use of a departmental vehicle, and thus, no implied contractual rights arise for the petitioners on the basis of their prior nonduty vehicle use.
We also find that the hearing officer’s decision need not be reversed merely because the hearing officer did not enter findings of fact and conclusions of law on each of the petitioners’ arguments advanced at the hearing. Five of those arguments were based on the assumption that the 1975 settlement agreement applied to the petitioners; at least those allegations were therefore resolved by the hearing officer’s finding that the agreement did not apply. The two remaining arguments raised by the petitioners at the grievance hearing, Le., (1) that the order terminating the petitioners’ nonduty vehicle use infringed on the Civil Service Department’s power to regulate conditions of employment; and (2) that it violated the petitioners’ equal protection rights, may be disposed of as a matter of law.
It is well established that an appointing authority, such as the respondent, may adopt employment regulations and policies governing its employees if there is no contrary controlling regulation issued by the Civil Service Commission. Michigan State Employees Ass’n v Civil Service Comm, 91 Mich App 135; 283 NW2d 672 (1979), lv den 407 Mich 938 (1979); MacLellan v Dep’t of Corrections, 373 Mich 448; 129 NW2d 861 (1964). Petitioners have not pointed to any Civil Service Commission regulation which was violated by the respondent’s restriction on state police officers’ nonduty use of departmental vehicles. Furthermore, in this instance the respondent, through its director, is also vested with statutory authority to prescribe the equipment that will be used by its officers. MCL 28.7; MSA 4.437. Consequently, the petitioners’ allegation that the respondent has infringed upon the exclusive jurisdiction of the Civil Service Commission by regulating vehicle use by classified employees cannot be sustained as a matter of law.
Finally, the petitioners alleged in their original grievance that they were denied the equal protection of the law because other employees, similarly situated, have been given vehicle use privileges.
Equal protection guarantees do not prohibit discrimination between different classes of persons so long as the classifications used are not arbitrary and capricious, but rather, have some reasonable basis. Tomlinson v Tomlinson, 338 Mich 274, 278; 61 NW2d 102 (1953); Welfare Employees Union v Civil Service Comm, 28 Mich App 343, 353; 184 NW2d 247 (1970), lv den 384 Mich 824 (1971).
In the present case, the respondent has pointed to a rational basis for its classification which excludes the petitioners from those entitled to continued nonduty use of departmental vehicles. The criterion for determining entitlement to this benefit was set forth in the original 1975 policy statement, which reserved the "nonduty use of departmental cars for those officers who are directly involved with the delivery of police services and are subject to emergency call”. There is nothing unreasonable about a policy which limits nonduty vehicle use to those officers who are subject to emergency call. Michigan suffers from a severe fiscal crisis; as a result, any rule which would limit the unnecessary use of state department resources (in this case, state police vehicles) has some rational basis. However, the state also has a need to ensure that officers who are on emergency call have ready access to, and proper maintenance of, their vehicles, so that they can perform their tasks with the utmost efficiency. Respondent’s rule allowing officers on emergency call to continue non-duty use of their vehicles promotes this legitimate state interest. It is worth noting that the phrase "emergency call” denotes situations in which time is most definitely of the essence; it is particularly beneficial to formulate a special rule for such situations. Although the petitioners’ investigative work is undoubtedly important, it seldom involves situations in which time is of the essence. At most, we find that the petitioners have shown that it would be somewhat more convenient for them if they were able to continue the nonduty use of their vehicles, but they have made no showing that their work is analogous to that of officers on emergency call. We find that the respondent’s policies do not deny the petitioners equal protection under the law.
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Per Curiam.
Plaintiff, Pauline Modreski, appeals by leave granted a November 26, 1979, order of the Workers’ Compensation Appeal Board which held that plaintiff failed to establish that she is incurably insane under MCL 418.361(3)(f); MSA 17.237(361)(3)(f).
Plaintiff worked for General Motors from 1955 to 1966. In 1961, while she was working, part of an automobile door fell on her hand and caused her injury. Thereafter, plaintiff worked intermittently, but her condition worsened. Benefits were paid when she could not work. In 1966, plaintiff was placed on total disability by General Motors and compensation was paid through February 27, 1972, 500 weeks from the 1961 injury. On March 23, 1972, plaintiff petitioned for benefits due to total and permanent disability, alleging:
"Injury to right wrist, arm, shoulder, neck, back, head, headaches, legs, other parts of the body, nervousness, functional complaints, aggravation of pre-existing conditions known and unknown, and the complications, developments and sequelae thereof. General disability from injury of 3-6-66, permanent and total disability from injury of 12-29-61 or 3-6-66 * * * industrial loss of use of right arm and right leg (Workmen’s Compensation Act Sec 361(2)(f) and (g).”
The hearing referee found that plaintiff met the test for incurable insanity under Sprute v Herlihy Mid-Continent Co, where this Court said:
"An employee is incurably insane * * * if the occupationally-related mental or emotional illness which impairs the employee’s mental processes is of totally disabling proportions and is likely to be of long and indefinite duration, thus making gainful employment impossible.” (Citations and footnotes omitted.)
On the basis of the testimony of plaintiff and her psychiatrist, the hearing referee determined that plaintiff was permanently and totally disabled because of incurable insanity. General Motors was ordered to pay benefits and the Second Injury Fund was ordered to pay differential benefits. The appeal board affirmed the order of the referee in a September 17, 1975, opinion. This Court denied leave to appeal on December 5, 1975, as to both defendants. By an order dated March 24, 1976, the Supreme Court held the case in abeyance and, on January 8, 1979, the Court remanded it to the appeal board for further consideration in light of Redfern v Sparks-Withington Co
On November 26, 1979, the appeal board, in a three to two decision, reversed its earlier decision to affirm the hearing referee, stating:
"This record establishes neurological or orthopedic disability on a functional basis. The organic basis that the disability might well have is not demonstrated. That disability on a functional basis is not incurable insanity has been established once and for all, at last, by the following comprehensive test set forth at 403 Mich 63, 85:
" 'We conclude that a worker’s mental illness is "insanity” if he suffers severe social dysfunction and that a worker’s intellectual impairment is "imbecility” if he suffers severe cognitive dysfunction. Social or cognitive dysfunction is "severe” if it affects the quality of the worker’s personal, non-vocational life in significant activity comparably to the loss of two members or sight of both eyes, and is incurable if it is unlikely that normal functioning can be restored.’
"To circumvent these words by a finding that a two-member functionally-based loss (falling short of industrial loss of use as measured by the standards of Burke, supra [Burke v Ontonagon County Road Comm, 391 Mich 103; 214 NW2d 797 (1974)], and DeGeer, supra [DeGeer v DeGeer Farm Equipment Co, 391 Mich 96; 214 NW2d 794 (1974)]) is indeed equal to the loss of the two members referred to in Redfern, supra, is a contradiction on its face. It would, moreover, welcome the reappearance of Spru ¿e-attendant inequities listed hereinbefore.
"The facts of the instant case are not unlike those of Redfern, supra, as set forth in 403 Mich 63, 71, fn 2. See 1978 WCABO 3149. The Redfern Court refers, not to somatic disability with functional basis, but to the employee’s mental capacity’ 403 Mich 63, 78; 'mental illness’ id., 81; and 'loss of mental function’ ibid. ”
The majority conclusion that plaintiff is not incurably insane under the above quoted test from Redfern, supra, was based on its findings that: (1) plaintiff’s mental capacity is relatively unchanged from before the work-related injury; (2) she was able to get along well with fellow employees and superiors; (3) she is no recluse, despite her physical difficulties; (4) her relationships with her neighbors and family are good; (5) she is "conversant” with her financial situation; (6) she is independent, has efficiently organized her life to accommodate her physical problems, and has a "great deal of family support”; (7) her planned move to a retirement home in Arizona evidenced her grasp of reality and sound mental health; (8) she was clear about her disabilities; (9) her divorce reflected sound mental health; and (10) the fact that she was tense, depressed, and tended to ramble did not evidence incurable insanity.
The dissenting opinion focused on the physical manifestations of plaintiffs mental disturbance. It contended that the following diagnosis by plaintiffs psychiatrist adequately supported a finding of incurable insanity under Redfern:
"Psychiatric diagnosis is (1) psychoneurotic reaction, conversion reaction, severe; (2) psychophysiologic reaction, musculo-skeletal type, severe. It is further to be noted that elements of a psychoneurotic reaction, depressive reaction type with agitation was also observed although this would seem to be of lesser clinical significance from an historical point of view. This psychopathology is psychodynamically directly related to and constitutes an outgrowth and complication of the organic pathology she has had which is noted to have been occupationally related. It is further to be noted that those periods of time that she attempted to return to work subsequent to her initial difficulty beginning over ten years ago contributed toward the aggravation and further development of the psychopathological processes, helping to stamp more firmly within her own thinking the degree of her 'helplessness’ and status of being 'an invalid’. Her condition is considered to be futile. It is my opinion that she is totally and permanently disabled because of this psychopathology. The gross interference of function of both of her legs, her back, the neck and right upper extremity precludes her performing even minimally in any type of gainful employment. She is further considered to be incurably mentally ill in terms of the psychopathology described and diagnosed.”
The standard by which this Court reviews decisions of the Workers’ Compensation Appeal Board was set out in Fergus v Chrysler Corp (After Remand):
"Findings of fact by the WCAB are conclusive in the absence of fraud, Const 1963, art 6, § 28; MCL 418.861; MSA 17.237(861). Decisions of the appeal board will be set aside only when they are contrary to law or not supported by competent, material and substantial evidence on the whole record. Tillotson v Penn-Dixie Cement Corp, 47 Mich App 427; 209 NW2d 611 (1973), lv den 390 Mich 767 (1973). Our powers of review are, thus, limited to reviewing the record for errors of law.”
The instant case presents a question of law, specifically, whether the appeal board correctly interpreted and applied the Redfem definition of incurable insanity. In Redfem, the Supreme Court formulated a definition of incurable insanity to replace that set forth in Sprute, supra. After noting that the effect of other compensable losses on the "quality of life” and the "ability to function normally in everyday life” is the point of focus in workers’ compensation cases, the Court stated:
"We are persuaded that the legislative purpose was to provide compensation for severe mental illness or cognitive loss comparable in its impact on the quality of the personal, nonvocational life of the worker to the loss of two members or sight of both eyes, the other permanent and total disability categories in the original formulation of the present total and permanent disability provisions. * * * Such a loss may also affect the worker’s wage earning capacity, but that is not determinative.” (Footnote omitted.)
The Redfem Court further stated:
"We are mindful of the imprecision of 'severe’, 'comparable’, and 'quality of life’, but nevertheless have concluded that it is better that further definition evolve in the administrative and judicial decision of individual cases, including these cases on remand.
"The central definitional question in these cases concerns the severity of dysfunction that will be regarded as satisfying the statutory standard. Derangement, personality disintegration, inability to recognize or cope with reality, may constitute the requisite dysfunction, but it also may be established by other evidence of severe social dysfunction in significant non-vocational activity having an impact on the quality of life comparable to the loss of limbs or of sight.” _
If the Redfern definition of incurable insanity is interpreted as focusing only on the mental aspects of a disability — a claimant’s grasp on reality and ability to interact with his or her environment in a healthy manner — plaintiff is not incurably insane. On the other hand, if the Redfern definition of incurable insanity is interpreted as being applicable to a claimant whose "insanity” is substantially manifested in a panoply of physically disabling symptoms, there is support for the dissenting board members’ claim that plaintiff is incurably insane.
We believe that the majority was correct in adopting the first of these interpretations and, thereby, finding that plaintiff was not incurably insane for purposes of receiving total and permanent disability benefits under MCL 418.361(3)(f); MSA 17.237(361)(3)(f).
The record in the instant case does not establish severe social dysfunction such as to satisfy the Redfern standard. Plaintiff appears to be very capable of meeting her daily needs, arranging for her future, dealing with her physical maladies, and communicating with her neighbors, friends, and relatives.
Plaintiff did not pursue her related claim of loss of industrial use of both legs and one arm before either the hearing referee or the appeal board. We do not believe that claimants who have failed to establish a loss of industrial use of two limbs should be able to circumvent this failure by claiming incurable insanity which is manifested in physical disabilities but accompanied by psychological processes which are otherwise clearly less than incurable insanity. To hold otherwise could bring about the anomalous result that a claimant who was suffering physical disabilities which did not fit within the categories listed in MCL 418.361 (3)(a)-(e) and (g); MSA 17.237(361)(3)(a)-(e) and (g) could not qualify for permanent disability if his maladies had an organic basis but might qualify if his maladies were found to have a psychological basis.
We note that any entitlement to benefits for general disability concerning the 1966 injury, ordered pursuant to the referee’s finding and affirmed by the board, was not affected by the board’s decision on remand.
Affirmed.
32 Mich App 574, 579; 189 NW2d 89 (1971).
403 Mich 63; 268 NW2d 28 (1979), Modreski v General Motors Corp, 404 Mich 823 (1979).
67 Mich App 106, 111; 240 NW2d 286 (1976), lv den 406 Mich 870 (1979).
Red fern, supra, 81.
Redfern, supra, 83-84.
This statute provides:
"(3) Total and permanent disability, compensation for which is provided in section 351 means:
"(a) Total and permanent loss of sight of both eyes.
"(b) Loss of both legs or both feet at or above the ankle.
"(c) Loss of both arms or both hands at or above the wrist.
"(d) Loss of any 2 of the members or faculties in subdivisions (a), (b) or (c).
"(e) Permanent and complete paralysis of both legs or both arms or of 1 leg and 1 arm.
"(f) Incurable insanity or imbecility.
"(g) Permanent and total loss of industrial use of both legs or both hands or both arms or 1 leg and 1 arm; for the purpose of this subdivision such permanency shall be determined not less than 30 days before the expiration of 500 weeks iron the date of injury.” | [
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Beasley, J.
On April 14, 1981, plaintiff, MGA, Inc., filed a complaint against defendant, LaSalle Machine Tool, Inc., alleging that defendant had violated a "patent license agreement” by not paying royalties to plaintiff for sales of machines covered by the license agreement. Plaintiff sought damages for the unpaid royalties and an injunction to enforce the license agreement in the future. On July 12, 1984, subsequent to a four-day bench trial, the trial judge issued a written opin ion finding that plaintiff had failed to prove by a preponderance of the evidence that the machines sold by defendant were covered by the license agreement. On Sepember 14, 1984, the trial judge entered a judgment of no cause of action.
The parties, both at trial and on appeal, argue that the determination of whether defendant has breached the license agreement rests on an interpretation of plaintiff’s patent number 3,570,656. Since this case extensively involves federal patent law issues, we must initially determine if the state courts have jurisdiction over this matter.
Jurisdiction over claims "arising under” the patent laws is exclusively vested in the federal courts. However, not all claims involving the patent laws "arise under” the patent law. In A & C Engineering Co v Atherhold, the Michigan Supreme Court quoted with approval the rule stated in 167 ALR 1114, 1118 which drew the following distinction:
"[t]he correct rule is that if the plaintiff founds his suit directly on a breach of some right created by the patent laws, he makes a case arising under those laws and only a Federal court has jurisdiction; but if he founds his suit on some right vested in him by the common law, or by general equity jurisprudence, he makes a case arising under State law and only a State court has jurisdiction.”
In determing whether a plaintiff’s suit is founded directly on federal patent laws or on state common law, a court must look to the pleadings, specifically the relief sought. In reviewing the pleadings in this case, plaintiff seeks damages and an injunction only for royalties related to the licensing agreement. Plaintiffs claim is based on the licensing agreement and rights created by state contract law. Therefore, plaintiffs claim does not "arise under” federal patent law, and the state courts have jurisdiction in this matter.
The trial judge set out his findings of fact in his opinion. Initially, he described the background facts of the case and noted that the parties had entered a "patent licensing agreement” effective January 1, 1979. Under the agreement, defendant was to report sales of "conveyor accumulator devices” covered by the patent involved in the license agreement and pay a royalty to plaintiff. After operating under the license agreement for a period, defendant desired to avoid the royalty payments and become more competitive. Defendant designed and obtained patents on its own conveyor accumulator devices and then sold these newly developed accumulator devices without paying royalties to plaintiff.
After setting out these background facts, the trial judge noted that the specific issue at trial was whether defendant’s accumulators (the "accused machines”) were covered by paragraphs 13 and 31 ("claims” in patent law terminology) of plaintiff’s patent which formed the basis for the licensing agreement. The trial court then noted the common design of conveyor accumulator devices and that this basic design had been patented prior to both plaintiff’s and defendant’s patents. The trial court further noted that defendant’s accumulators use a chain device to function, whereas plaintiff’s accumulators, under its patent, use end-to-end abutting bars.
After making these findings, the trial judge concluded that the accumulators sold by defendant were not covered by the license agreement. To reach this conclusion, the trial judge implicitly found that defendant’s accumulators were not covered by claims 13 and 31 of plaintiffs patent. Thus, the trial judge found that defendant did not breach the license agreement by selling its accumulators without paying royalties to plaintiff.
Construing patent claims is a somewhat novel experience for this Court, but the parties agree that state courts must apply patent law decisions of the federal courts in addressing patent construction issues. The guidance of the federal court decisions is necessary for a proper determination of the issues involved in this case. Thus, our analysis follows that of the federal decisions.
In general, there are two separate methods of analysis for determining whether the claims of a patent cover a certain device. The first method of anyalysis is termed "literal infringement”. The second method of analysis is termed "the doctrine of equivalents” and is often used when literal infringement is absent. We will apply the "literal infringement” analysis first, since our disposition under that anyalysis also disposes of "the doctrine of equivalents” analysis.
"Literal infringement” may be found if the accused device falls within the scope of the language of the asserted claims as properly interpreted. Thus, the asserted claims must be compared with the product accused of infringement.
A court’s comparison of the accused machines to the patent claims is broken down into two steps. First, the court must define the scope of the claims. This construction of the claims is a question of law if the language of the claims is not disputed (as in this case). Second, the trier of fact must decide whether the claims, as construed in law, cover the accused machine. This involves an issue of fact.
In the within case, the function and components of defendant’s machines are not in dispute. An accumulator is a device which operates within a conveyor system. A conveyor transports parts from one area to another. In many factory conveyor systems it is important not to have lags or gaps when parts are missing from their positions on the conveyor. Thus, if a part is removed or falls off, a method is needed to fill in the spot of the removed or lost part. Accumulators serve this role by pushing forward the parts behind the gap, thus filling the gap. Every type of accumulator uses a "sensor” to find gaps along the conveyor. Once a gap is found, a "mechanism” is used to raise a "moving component” that pushes forward the parts behind the gap. The difference in accumulators is based on the various "mechanisms” used to activate the appropriate moving components. The earliest accumulators (before both plaintiffs and defendant’s) used a pneumatic mechanism, which was often unreliable. Plaintiffs accumulator was the first to use a simple mechanical mechanism of "end-to-end bars”. The parties agree that defendant’s accumulator uses a simple mechanical mechanism of "chains and pivoting levers”. Thus, the second issue involving the factual determination of the nature of the accused machine is not seriously in dispute.
The crucial step in this case is defining the scope of the undisputed language of the claims in plaintiffs patent as a matter of law. This is the issue on which the trial court and the parties focused in four days of trial. Plaintiff asserted that claims 13 and 31 of its patent cover defendant’s chain and pivoting lever accumulators. Defendant, and the trial court, interpreted the language of those claims not to cover defendant’s accumulators.
Claim 13 includes the following devices:
"13. An accumulating feed system comprising a longitudinally arranged series of work supporting stations including a starting station at which workpieces are deposited serially, a delivery station from which workpieces are removed serially, and a plurality of intermediate stations through which workpieces are advanced intermittently and from which individual workpieces may be removed, sensing means associated with said stations to determine empty stations, feed means associated with each station except the discharge station operable to advance a workpiece from its station to the next successive station, and control means responsive to the sensing of the absence of a workpiece at the delivery or any intermediate station to activate the feed means of every station in rear of the empty station to simultaneously advance a workpiece to the next successive station, said control means comprising a series of individual separately movable elements, all of said elements being movable relative to a support in the same sense, and abutment means acting between said elements effective to ensure identical movement of all elements located in one direction from a particular element upon movement of such particular element, while the elements located in the opposite direction are not moved.” (Emphasis added.)
Claim 31 includes the following devices:
"31. An accumulating feed system comprising a series of work support stations including a starting station at which workpieces are deposited serially, a delivery station from which workpieces are removed serially, and a plurality of uniformly spaced intermediate stations between which workpieces are advanced intermittently, movable rigid sensing elements associated with said stations each having two positions corresponding to the presence or absence of a workpiece at the associated station and including an actuating portion movable between idle and actuating positions upon movement of said element, a transfer slide movable along said series of stations, means for reciprocating said slide in forward feeding and reverse strokes, a work transfer device for each station except the delivery station, and operable when activated to be moved by said transfer slide on forward feeding movement thereof to transfer a workpiece from its associated station to the station next ahead thereof, and means for controlling activation of said work transfer devices in accordance with the positions of said sensing means comprising a series of members disposed along said series of stations at intervals substantially equal to the spacing between said stations, said members being supported for like back and forth movement of the same sense between limiting positions which determine activation or nonactivation of the associated work transfer device, each of said members being independently and selectively movable between said limiting positions as a consequence of the position of the sensing element, each intermediate one of said members having one way engagement with one of the next adjacent members to effect movement thereof in the same sense as movement of said one intermediate member when said one intermediate member and said one next adjacent member occupy like positions prior to such movement, and having one way engagement with the other of the next adjacent members to effect movement thereof upon movement of said one intermediate member in the opposite sense when said one intermediate member and said other next adjacent member occupy like positions prior to such last mentioned movement.” (Emphasis added.)
It is apparent from the trial record and the trial court’s findings that the focus of interpretation for claim 13 was the phrase "abutment means”, and for claim 31 was the phrase "like back and forth movement”. Plaintiff claimed that defendant’s use of a chain and pivoting levers in its accumulators constituted "abutment means” and "back and forth movement” like the end-to-end abutting bars in plaintiffs design. The trial judge rejected this interpretation based on the evidence presented at trial.
In reviewing the trial judge’s determination of this overall question of law, we first note that a recent federal decision states:
"But when the meaning of a term in the claim is disputed and extrinsic evidence is necessary to explain that term, then an underlying factual questions [sic] arises, and construction of the claim should be left to the trier or jury under appropriate instruction.” P M Palumbo v Don-Joy Co, 762 F2d 969, 972 (CA Fed, 1985).
Extrinsic evidence was required to explain the terms in claims 13 and 31. Thus, we review the trial judge’s interpretation of the terms in the claims as an issue of fact. Under the applicable standard of review, we conclude that the trial judge’s determination that defendant’s accumulators do not fall within the terms of claims 13 and 31 of plaintiffs patent is not clearly erroneous.
The trial court heard testimony from witnesses trained in the field of patent law and accumulator design that defendant’s accumulator design did not use "abutment means” or "back and forth” motion like plaintiffs accumulator design. In addition, it was revealed that the basic accumulator design using a pneumatic design instead of end-to-end bars or a chain was patented prior to either plaintiffs or defendant’s patent. The history of plaintiffs patent revealed that when plaintiff applied for its patent, it was required to change the broad language of its claims to obtain approval. The reason for this change was so the claims in plaintiff’s patent would not encompass the basic accumulator design already patented with a pneumatic mechanism. Thus, the patentable difference in plaintiff’s design was solely attributable to its abutment means, end-to-end bar mechanism in the accumulator. Specific language covering pneumatic and flexible mechanisms (such as chains) was withdrawn from plaintiff’s patent application.
The use of this evidence in interpreting the terms of the claims such as "abutment means” and "like back and forth motion” is clearly correct. In construing claims, a number of factors may be considered, including the language of the claim, the patent specification (end-to-end bars), the prosecution history of the patent (the file wrapper), other claims in the patent, and expert testimony. In light of the evidence revealed at trial, the trial court’s factual determination that defendant’s chain mechanism accumulator was not covered by the terms of claims 13 and 31 in plaintiff’s patent was not clearly erroneous.
This conclusion is supported by the distinction drawn between two recent federal court patent cases. In both cases, the court was determining the scope of "means” language (such as "abutment means”) as a matter of law. Initially, the court noted that in interpreting "means” language in a patent claim, the issue of equivalency must be addressed under "literal infringement” analysis because of 35 USC 112, which provides:
"An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be con strued to cover the corresponding structure, material or acts described in the specification and equivalents thereof.” (Emphasis added.)
The test for equivalency is whether the allegedly infringing device employs substantially the same means to accomplish substantially the same result in substantially the same way.
In the first case, Hale Fire Pump Co v Tokai, Ltd, the court found that the prosecution history established that the claim involved was allowed by the United States Patent Office because the specific jackscrew mechanism of "releasable means” had an advantage in disassembling a pump absent in the prior basic design of two-part pumps. Based on this finding, the court limited the term "releasable means” to a jackscrew mechanism and held that the accused handle mechanism was not equivalent.
The second case, DMI, Inc v Deere & Co, distinguished the Hale Fire Pump Co decision by noting that the claims in the DMI case were not allowed by the patent examiner solely because a parallelogram mechanism was used in obtaining "compensating means”. The scope of the DMI claim was held to go beyond the specific parallelogram mechanism used by the patentee. Thus, the lower court was required to make factual findings on whether the accused machines, which used a different mechanism to obtain "compensating means”, were covered by the claim.
The within case is more closely analogous to the Hale Fire Pump Co situation, since the patent office allowed plaintiff’s patent because of the end- to-end bar mechanism of "abutment means”. Thus, as a matter of law, the term "abutment means” is properly interpreted as, and limited to, the end-to-end bar mechanism.
Given this interpretation of "abutment means” as a matter of law, the only question remaining is whether defendant’s chain mechanism is equivalent to plaintiffs end-to-end bar mechanism. This determination is necessary since, as the trial court properly found, the chain mechanism is not literally the same as the end-to-end bar mechanism. Initially, it should be noted that the determination of equivalency is an issue of fact for the trial court. However, in this case, the trial court was not required to, and properly did not, address the issue of equivalency. Based on the prosecution history of plaintiff’s patent as noted above, it is clear that the doctrine of "file wrapper estoppel” applies in this case. This doctrine is stated as follows:
"[I]f, during the prosecution of a patent application, an applicant has amended the claims or has made representations or arguments limiting or narrowing the scope of the claims in order to obtain the allowance of the claims over the prior art by the patent examiner, then the applicant is estopped from subsequently trying to expand the scope of the claims beyond those amendments, representatons, or arguments.”
Since plaintiff had to limit its patent claims to "end-to-end bars” and "abutment means” to obtain approval, it cannot now expand the patent claims to cover "chains” and "flexible means”. Plaintiff is, thus, estopped from claiming that defendant’s chain mechanism is equivalent to its end-to-end bar mechanism or "abutment means”.
In light of this estoppel of defendant’s equivalency argument, the trial court properly excluded as irrelevant testimony concerning equivalency. In summary, the trial court’s interpretation of "abutment means” and "like back and forth movement” as limited to end-to-end bar mechanisms was not clearly erroneous. In addition, the trial judge was not required to address the equivalency issue under either the "literal infringement” analysis or "the doctrine of equivalents” analysis due to the doctrine of file wrapper estoppel. The trial judge properly limited his decision to a literal application of claims 13 and 31 of plaintiffs patent. Based on his proper interpretation of the terms of claims 13 and 31, he correctly concluded that defendant’s accumulators were not covered by plaintiffs patent and the patent "license agreement” between the parties.
Since defendant’s accumulator sales were not covered by the "license agreement”, there was no breach when defendant did not pay royalties to plaintiff.
Plaintiffs claims that the trial judge, in making his decision, erroneously relied on the fact that defendant obtained patents on its accumulators, erroneously used claim 32 to limit claim 31, and erroneously took into account defendant’s motives are not supported by a reading of the trial court’s opinion. The trial court’s judgment of no cause of action was proper.
Affirmed.
28 USC 1338(a).
355 Mich 677, 681; 95 NW2d 871 (1959).
Air Products & Chemicals, Inc v Reichhold Chemicals, Inc, 755 F2d 1559 (CA Fed, 1985).
See Consolidated Kenetics Corp v Marshall, Neil & Pauley, Inc, 11 Wash App 173; 521 P2d 1209 (1974).
P M Palumbo v Don-Joy Co, 762 F2d 969 (CA Fed, 1985).
Envirotech Corp v A1 George, Inc, 730 F2d 753 (CA Fed, 1984).
Amstar Corp v Envirotech Corp, 730 F2d 1476 (CA Fed, *1984), cert den — US —; 105 S Ct 306; 83 L Ed 2d 240 (1984).
McGill, Inc v John Zink Co, 736 F2d 666 (CA Fed, 1984), cert den — US —; 105 S Ct 514; 83 L Ed 2d 404 (1984).
Palumbo, supra.
Palumbo, supra.
Graver Tank & Mfg Co v Linde Air Products Co, 339 US 605; 70 S Ct 854; 94 L Ed 2d 1097 (1950).
614 F2d 1278 (CCPA, 1980).
755 F2d 1572 (CA Fed, 1985).
DMI, Inc, supra.
15 Hale Fire Pump Co, supra, p 1282; 2 Rosenberg, Patent Law Fundamentals, § 17.02(2) (Rev. 1985). | [
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Per Curiam.
Defendants were convicted following a bench trial of attempted breaking and entering of an occupied dwelling with the intent to commit larceny, MCL 750.110; MSA 28.305 and MCL 750.92; MSA 28.287. Each defendant was sentenced to three years’ probation, with the first year to be served in the Detroit House of Correction, each appealed as of right, and the cases were consolidated on appeal.
Defendant Frost alleges that the trial court’s findings on the element of intent to commit larceny were insufficient to allow meaningful appellate review, and both defendants allege that there was insufficient evidence to support the trial court’s finding that defendants attempted to break and enter with intent to commit larceny. Our disposition of the latter issue makes any discussion of the specificity of the trial court’s findings unnecessary.
The complainant testified that he left his home in the morning, that he locked his windows and doors and that the doors were secured with deadbolt locks and a "fox police lock”. He also indicated that he gave no one permission to enter his premises and that when he returned in the evening there was extensive evidence that someone had attempted to break into his home. The arresting officers testified that at about noon of the day in question they observed the defendants standing between the screen and front door on the front porch of the complainant’s home. They indicated that, when the defendants looked in the direction of the officers’ scout car, they jumped off the porch and fled and that a pursuit ensued. The officers chased and apprehended the defendants, after which a return to complainant’s home revealed unmistakable evidence that an attempt had been made to break into the premises. Though the door lock held, the door was loose and there was fresh debris, including wood chips, lying on the ground near the lock. There were also tennis shoe prints on the door as though someone had kicked at the door in an attempt to force it open. Both defendants were wearing tennis shoes when appre hended. After hearing all the evidence, the trial court held that "the people have proven the elements, there was an attempt to break in and enter the premises * * * and they had the intent to commit the crime of larceny”.
The standard of review for sufficiency of the evidence is whether, when the evidence is viewed in the light most favorable to the prosecution, a rational finder of fact could find that the essential elements of the crime had been proven beyond a reasonable doubt. People v Petrella, 424 Mich 225; 380 NW2d 11 (1985).
Defendants were convicted of attempted breaking and entering with the intent to commit larceny. The essential elements of an attempt are: (1) an intent to do an act or bring about certain consequences which in law would amount to a crime, and (2) an act in furtherance of that intent which goes beyond mere preparation. People v Adams, 416 Mich 53, 58 fn 5; 330 NW2d 634 (1982). The essential elements of the underlying offense are: (1) the breaking of an occupied dwelling; (2) an entering of an occupied dwelling; and (3) an intent to commit a larceny. See, People v Cook, 131 Mich App 796, 809; 347 NW2d 720 (1984).
The evidence in this case, particularly when viewed in the light most favorable to the prosecution, easily supports the trial court’s finding that a breaking and entering was attempted by the defendants. The problem we face is whether there was proof beyond a reasonable doubt of the defendants’ intent to commit larceny. While we may surmise, as the trial court did, that the defendants’ intent is patent, there is no evidence in the record to support a finding of the requisite intent. We have held that no presumption of intent to steal arises solely from proof of a breaking and entering. People v Palmer, 42 Mich App 549, 552; 202 NW2d 536 (1972). While minimal circumstantial evidence is sufficient to sustain a conclusion that a defendant entertained the requisite intent, there must be some evidence reasonably leading to such a conclusion. Palmer, supra. In this case, there was no evidence presented that anything of value was in the home, and no indication of any vehicle to transport stolen goods, the only evidence being that which established the fact of defendants’ activities on the porch and their flight. There are no additional proofs to distinguish the crime of which the defendants were convicted from the lesser misdemeanor offense of attempted breaking and entering. MCL 750.115; MSA 28.310.
The prosecution has the burden of proof on all elements of a crime. People v Rios, 386 Mich 172, 181; 191 NW2d 297 (1971). In this case, the prosecution has failed to prove the additional element of intent to commit larceny.
We agree completely with the trial court’s observation that crimes of breaking and entering have created an oppressive climate of fear in recent years. There is no better evidence of that than the outrageousness of the situation in the case at bar, in which the defendants attempted to brazenly kick down the front door of a home in a residential neighborhood in the middle of the day. In view of such circumstances, it might be wise for the Legislature to make breaking and entering itself a felony. In the absence of such legislative action, however, the courts of this state may not elevate a misdemeanor to the level of a felony without proof of the requisite additional element.
Reversed and remanded for resentencing on the lesser included misdemeanor offense of attempted breaking and entering. | [
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Bashara, J.
Plaintiffs appeal from orders granting summary judgment in favor of defendant school system. Plaintiffs were employed as probationary teachers by defendants during the 1972-73 and 1973-74 school years. Both were notified in writing on April 12, 1974, that they would not be rehired for the ensuing school year. Reasons for the decision not to rehire were stated in the notification letters.
A collective bargaining agreement was in force during the 1973-74 school year. Art XII, § C provided that:
"No teacher shall be disciplined, reprimanded, reduced in rank or compensation or deprived of any professional advantage or denied continued employment without just cause. Any such discipline, reprimand, reduction in rank, compensation or advantage, or denial of continued employment including adverse evaluation of a teacher’s performance asserted by the Board or representative thereof shall be subject to the professional grievance procedure hereinafter set forth provided, however, that the arbitration step of the grievance procedure shall not be available for the adjudication of any complaint by a non-tenure teacher dealing with any matter covered by the Tenure Act. All information forming the basis for disciplinary action shall be made available to the teacher upon request.”
It is conceded by plaintiffs that meetings were held regarding the decision not to rehire them. However, it was their position that by contract, statute, and constitution they were entitled to a hearing to determine the truth of the allegations made by defendants. The trial court held that defendants had not violated plaintiffs’ contractual or statutory rights because they were only probationary teachers.
We must therefore examine each of the plaintiffs’ alternative theories to determine whether the court erred in granting summary judgment to defendants.
Plaintiffs contend the contractual language of article XII, § C stating that "no teacher shall be * * * denied continued employment without just cause” contemplates that a hearing must be held to determine whether just cause exists. However, the same provision of the contract provides that the arbitration step of the grievance procedure shall not be available to nontenured teachers.
A review of the remainder of the contract reveals several instances where the right to a hearing is available only to tenured teachers. We must conclude that as probationary teachers the plaintiffs had no right to a hearing under the collective bargaining agreement.
Plaintiffs next contend that the teacher tenure act protects nontenured teachers from an arbitrary and capricious dismissal. MCLA 38.81; MSA 15.1981, provides that "all teachers during the first 2 school years of employment shall be deemed to be in a period of probation”. The only statutory requirement for dismissal within the two year probationary period is that the teacher be notified in writing as to whether or not his work has been satisfactory, and that his services shall be discontinued, at least 60 days before the close of the school year. MCLA 38.83; MSA 15.1983.
Article IV, § 1 of the act provides that "discharge or demotion of a teacher on continuing tenure may be made only for reasonable and just cause, and only after such charges, notice, hearing, and determination thereof, as are hereinafter provided”. (Emphasis supplied.) MCLA 38.84; MSA 15.1984 specifically states that Article IV, dealing with discharge, demotion or retirement shall not apply to probationary teachers. We are thus left with the inescapable conclusion that the Legislature intended that school boards need only notify probationary teachers of the reasons for dismissal within the statutory period. Weckerly v Mona Shores Board of Education, 388 Mich 731; 202 NW2d 777 (1972).
Finally, plaintiffs argue that where no opportu nity exists for a hearing to determine the truth of the charges against them, they are denied due process of law. They claim the trial court’s finding that plaintiffs did not have a sufficient property interest to claim this protection is erroneous under settled Federal law and should be reversed.
Plaintiffs rely on The Board of Regents of State Colleges v Roth, 408 US 564; 92 S Ct 2701; 33 L Ed 2d 548 (1972), in support of their position. However, the Roth case buttresses the proposition that a nontenured teacher has no sufficient property interest to require a hearing before dismissal unless such is created by either state law, rules, or understandings securing certain benefits. As we have already held, plaintiffs acquired no rights to a hearing by contract or state statute.
Perry v Sinderman, 408 US 593; 92 S Ct 2694; 33 L Ed 2d 570 (1972), also cited by plaintiffs, is not applicable to the case at bar. There it was found the plaintiff had a continuing expectancy of employment because of the possibility of "rules and understandings” that might justify his claim to continued employment, absent just cause.
Arnett v Kennedy, 416 US 134; 94 S Ct 1633; 40 L Ed 2d 15 (1974), dealt with a Federal act which conferred the right not to be discharged except for cause. The Arnett Court held that even though the term "just cause” was used, and the employee was nonprobationary, a due process right to a hearing did not attach.
It is to be noted that Roth, supra, holds that where the reasons for nonrenewal impugn the good name, reputation, honor or integrity of the individual, a hearing to determine the truth of those charges might well be warranted. Arnett v Kennedy, supra, echoes that holding. However, in the case at bar the reasons given for nonrenewal relate strictly to job performance. They do not fall within the spectrum above stated from either Roth or Arnett.
Finally Munro v Elk Rapids Schools, 385 Mich 618; 189 NW2d 224 (1971), has clearly set forth that the Michigan teacher tenure act fully satisfies the constitutional requirements of due process.
In sum, we hold that it is the intent of the Legislature, as well as the collective bargaining agreement, that these probationary teachers are not entitled to the expectancy of a hearing to determine the merits of the reasons for discharge.
Affirmed. No costs, a public question being involved.
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D. E. Holbrook, P. J.
On July 8, 1974, the Court of Claims found no cause of action on three counts of a four-count complaint involving the alleged misrepresentation of the State Highway Department regarding the type of soil present at a bridge reconstruction site. Judgment was entered on December 12, 1974, and rehearing was denied. Plaintiff Kensington appeals as of right.
On April 7, 1971, plaintiff Kensington, as low bidder, was awarded a prime contract for reconstruction of a bridge over 1-94 in Dearborn, Michigan. The contract specified that Kensington, acting individually and through its subcontractors, was required to build a reinforced concrete wing wall at one end of the bridge. The defendant prepared and submitted certain plans and specifications which indicated that the soil in the wing wall area was soft blue clay, which has a transverse sheering resistance of 100 to 300 pounds per square foot. Kensington sublet the bridge construction work to Korneffel Company, a state-approved subcontractor. Construction proceeded until the cofferdam of the wing wall collapsed. Upon independent analysis of the soil, it became apparent that the soil was in fact very soft blue clay, which has a transverse sheering resistance of less than 100 pounds per square foot, and not soft blue clay. The cofferdam was successfully rebuilt using very soft blue clay methods. Kensington and its subcontractors then attempted to recover approximately $55,000, the added expense incurred by the requirement of the use of very soft blue clay building methods, from the highway department. On July 17, 1972, the Central Office Adjustment Board denied the vari ous claims in the final administrative step of the claim review process. The plaintiffs then filed the instant action in the Court of Claims.
The trial court found that Kensington could not maintain this action to recover damages caused by this incident. The court held that there was never a joint venture between Kensington and the subcontractors and that therefore as a matter of law, the prime contractor could not maintain this action on behalf of the subcontractors.
Both parties apparently agreed that the trial court misdirected its inquiry towards the existence of a joint venture. On appeal both parties engage in a thorough review of similar claims by contractors against the Federal government. We also agree that a review of Federal court experience, where a substantial amount of litigation in this area has occurred, is helpful. Both parties cite the same case as support for their respective positions, JL Simmons Co, Inc v United States, 304 F2d 886 (Ct Cl, 1962). We also agree that this, and subsequent cases following this case, control and that the rule is that the contractor may maintain a suit on behalf of the subcontractors when the prime contractor has reimbursed its subcontractors for the damages or remains liable for such reimbursement in the future (known as the Severin Doctrine, Severin v United States, 99 Ct Cl 435 [1943], cert den 322 US 733; 64 S Ct 1045; 88 L Ed 1567 [1944]), J L Simmons Co, supra, Hegeman-Harris & Co, Inc v United States, 440 F2d 1009 (Ct Cl, 1971), Keydata Corp v United States, 504 F2d 1115 (Ct Cl, 1974). Apparently Kensington has not reim bursed the subcontractors and, therefore, this dispute really concerns whether Kensington remains liable for such reimbursement in the future. The key to this dispute, therefore, lies in interpretation of the subcontract itself, which the trial court avoided herein by improperly ruling that the contractor could not maintain this action because Kensington and the subcontractors herein were not engaged in a joint venture. Unfortunately, this case does not fit neatly within the Simmons rule, and the subcontract language does not clearly require a particular result. The liability of the prime contractor to the subcontractor depends on proper interpretation of this subcontract. See, Blount Brothers Construction Co v United States, 346 F2d 962 (Ct Cl, 1965).
This subcontract was not interpreted by the trial court although there was testimony presented concerning the meaning of the subcontract. The subcontract herein provides in pertinent part as follows:
"3. Prime contractor to remit payment for completed work when received and evidenced by estimates prepared by the Michigan State Highway Department.
* * *
"9. The Party of the Second Part agrees to accept as complete and final, amounts and quantities as determined by the Michigan State Highway Department and the Party of the Second Part shall have no further claim against the Party of the First Part whatsoever. Payment will be made to the Second Party as the Michigan State Highway Department pays the Party of the First Part.”
These sections when read with the rest of the subcontract, do not absolve plaintiff Kensington of all responsibility or liability to the subcontractors, but rather serve to create an implied obligation on the part of the prime contractor to proceed against the government in administrative and judicial proceedings should the state fail to pay without good cause. Keydata Corp, supra, at 1121. Federal courts have clearly announced that: "To come under the 'Severin’ doctrine the defendant must show, through some contractual term or a release, that the plaintiif-prime is not liable to the subcontractor”. Blount Brothers Construction Co, supra, at 965. In the absence of clear, express exculpatory language, suit by the prime contractor in behalf of a subcontractor against the government will generally be permitted. Southern Construction Co, Inc v United States, 364 F2d 439, 447 (Ct Cl, 1966). We rule that the burden is properly on the defendant to show that the prime contractor is absolved from liability, particularly when, as here, there is no question but that recovery will properly go to the injured subcontractor. Defendant has not carried its burden of proof.
Furthermore, we think this is the just result. Contrary to the court below, as explained further by us in the next issue, we feel the prime contractor and subcontractor herein properly relied on defendant’s misrepresentations as to the soil quality, which caused the collapse of the cofferdam. To deny recovery on the basis that the subcontractor did not directly deal with the state when the state voluntarily and knowingly provided the incorrect and material information to the subcontractor would be unfair. This is particularly so when the subcontractor has not given up his rights against the prime contractor, nor signed a release, and when the contract supports a finding of an obligation on the part of the prime contractor to protect the subcontractor from wrongful action by the state.
We must take cognizance of the realities of government contracts. The state provides plans and specifications for the project and exerts substantial control over bidding procedure. The prime and subcontractors must meet many requirements imposed by the state and Federal governments. In the instant case, the contract and subcontract are set forth on State Highway Commission forms. The contract between the prime contractor and the state lists the proposed subcontract provisions and includes the subcontractor’s name and signature as a "prequalified” subcontractor. The state provided a copy of the proposed plans to the sub. The contractor is responsible to the state for the work of the subcontractor and must furnish appropriate performance and lien bonds. If the subcontractor should fail in its performance, the state may well be able to maintain an action against both prime and subcontractors, or at least if the state sued the prime, the prime in turn could join the sub, GCR 1963, 204. The state should not then be able to preclude the prime from bringing an action on behalf of the injured sub. We rule that in a normal case the prime contractor may bring an action on behalf of the sub who is injured by actions of the state contractee.
We do not consider what the result would be were there a clear exemption from liability for the prime contractor to the subcontractor for actions of the state. It would seem at first glance that since the prime contractor was not liable to the subcontractor, the prime then could not sue on behalf of the sub. However, we then reach the strange result that the state would be shielded from suit for its wrongful actions by way of a contract provision between the prime and the subcontractor. Furthermore, such a clause would be void as against public policy, particularly if such a provision were standardized in contracts between prime and subcontractors who do government work. See, Cree Coaches, Inc v Panel Suppliers, Inc, 23 Mich App 67; 178 NW2d 101 (1970), aff’d 384 Mich 646; 186 NW2d 335 (1971). The threat of direct or indirect pressure on contractors to include such a provision would soon materialize. See Mahoney v Lincoln Brick Co, 304 Mich 694; 8 NW2d 883 (1943), Federoff v Ewing, 386 Mich 474; 192 NW2d 242 (1971). This is indeed a troubling area of the law. At this time we see no reason why the state should not be liable when the trial court finds that the subcontractor justifiably relied on the representation of the state. The Court of Claims improperly found no reliance on the state’s erroneous representations as to the quality of the soil herein and that, therefore, no misrepresentation was committed by the state.
Factual inaccuracy in the state’s plans and specifications for a proposed highway construction project may give rise to a cause of action for misrepresentation if the inaccuracies have been relied upon by a contractor to his detriment. See Valentini v City of Adrian, 347 Mich 530; 79 NW2d 885 (1956), WH Knapp Co v State Highway Department, 311 Mich 186; 18 NW2d 421 (1945), Hersey Gravel Co v State Highway Department, 305 Mich 333; 9 NW2d 567 (1943), and generally 65 Am Jur 2d, Public Works and Contracts, § 177, pp 58-60. No one quarrels with the existence of this rule and the state herein admits that it erred in its soil classifications. Furthermore, the state had an engineer on the job who knew of the true nature of the soil condition. However, the trial court improperly-determined that plaintiff Kensington did not rely on this error and was not itself damaged by this fiasco.
In reviewing the Court of Claims’ decision, findings of fact will not be set aside unless clearly erroneous, GCR 1963, 517.1, Brown Brothers Equipment Co v State Highway Commission, 51 Mich App 448; 215 NW2d 591 (1974). The trial court herein based its finding of no reliance, at least in part, on its erroneous legal conclusion that Kensington could not sue on behalf of its subcontractors. However, we have determined that this action can be maintained. The subcontractor’s damages, in essence, have become the damages of the prime contractor and a finding to the contrary would be error.
A review of the record in the instant case certainly justifies a finding of reliance on the part of the subcontractor herein. In preparing its bid to Kensington, Korneffel’s president testified that if the company had known that the soil was very soft instead of soft clay, its bid would have been substantially higher. In addition, Kensington, the prime contractor, also bid in on this project and testified that its bid would also have been substantially higher had the true soil conditions been known. It certainly is reasonable to this Court for a contractor to rely on the State Highway Department’s representations of soil conditions. See Valentini, supra, W H Knapp, supra, and Hersey Gravel Co, supra. The state freely volunteered this material and erroneous information to the subcontractor. The court herein concluded, however, that "there is no testimony convincing this court that Korneffel Company relied on this misrepresentation in submitting a lower bid to plaintiff Kensington”. The court found this in spite of the following finding of fact made by the court: j'
"Korneffel Company designed the initial cofferdam based upon its past experience and review of boring information which indicated the presence of soft blue clay which was contained in the project plans. Soft blue clay is a soil designation having an average sheer strength range of one hundred to three hundred pounds per square foot. However, the State had in its possession test results which inadvertently were not set forth on the plans. These test results showed that the soil condition range on the project was from seventy five to two hundred seventy five pounds per square foot with an average of ninty five pounds per square foot. This soil condition is classified as 'very soft blue clay’.
"The Defendant’s District Engineer, Mr. Gooding, testified that he knew about this soil condition but had failed to inform the contractor.
"Korneffel, testifying for Plaintiff, claimed that he would have used an entirely different design in construction procedure had he known that he would be confronted with very soft blue clay. The engineers, Korneffel, Dr. Lamb, Coleman and Gooding [Coleman and Gooding testified for defendant] all testified that they certainly would be alerted by the words 'very soft blue clay’ and would have advised a contractor accordingly had they known of it.”
The preponderance of the evidence, indeed the only evidence, indicates that Korneffel, and to a lesser extent Kensington, relied on the inaccurate soil classification in submitting their respective bids and in constructing the cofferdam which collapsed. We rule that the trial court erred in finding that there was no reliance on the State’s misrepresentations as to the quality of the soil herein.
The trial court in its initial opinion also held that this claim was barred by the statute of limitations contained in the Court of Claims Act, MCLA 600.6431; MSA 27A.6431. In the rehearing opinion the Court of Claims seemed to indicate that it had committed error initially in holding that this statute precluded the instant action. In the instant case the Central Office Adjustment Board did not finally deny plaintiffs’ claim until July 17, 1972. The plaintiffs then filed this claim on December 1, 1972. This claim was properly brought within the one-year period. The Cooke Contracting Co v Department of State Highways #1 (On Rehearing), 55 Mich App 336; 222 NW2d 231 (1974).
Reversed and remanded for entry of judgment and proper determination of damages.
The court below found in favor of plaintiffs on the fourth count, the judgment has been satisfied and apparently that finding is final.
Initially the subcontractors were parties herein also, but they were dismissed by stipulation prior to trial herein.
See, also, Arkansas Bridge Co v Kelly-Atkinson Construction Co, 282 F 802 (CA 8, 1922); Anno. Validity, construction, and application of "no damage” clause with respect to delay in construction contract, 10 ALR2d 801 (1950); 65 Am Jur 2d, Public Works and Contracts, § 164, pp 43-44.
Section 3 and Section 9, quoted in this opinion, of the subcontract would appear to require payment of any such sums paid by the state to the subcontractor. In addition, Kensington admitted such liability at trial herein.
See Anno, 10 ALR2d 801, supra, n 3. | [
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Per Curiam.
Defendant appeals by leave granted from denial of its motion for accelerated judgment by the trial court. The Detroit Edison Company purchased from defendant General Electric a transformer which was shipped February 21, 1968 and arrived at the buyer’s place of business March 4, 1968. Damage to the transformer was discovered on April 13, 1968, after it had been installed by defendant W. D. Gale, Inc., a contractor. Suit was begun March 13, 1972, by Centennial Insurance Company, as subrogee. Defendant based its motion for accelerated judgment on the statute of limitations found in § 2-725 of the Uniform Commercial Code. MCLA 440.2725; MSA 19.2725.
"(1) An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than 1 year but may not extend it.
"(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.”
It is clear that whether tender of delivery is deemed to be made at the time of shipment by the seller or at the time of receipt by the purchaser, suit was not commenced within four years. However, plaintiff relies on the language of the contract’s express warranty in an attempt to bring this action within the stated exception of subsection 2-725(2). The warranty language is set out in the margin. We construe the language: "If it appears within one year from the date of shipment by the Company that the equipment * * * does not meet the warranties specified above * * * ”, not as a warranty for future performance, but rather, a specification of the remedy to which buyer is entitled should breach be discovered within the first year. At best, it could be argued that the clause is ambiguous. But any ambiguity must be resolved in favor of the construction we adopt here, that the language in question is not a warranty of future performance, since in order to invoke the exception the purported future warranty must be "explicitly” stated.
"Statutory use of the word has been construed in other jurisdictions. In Hvidsten v Northern Pac. Ry. Co., 76 ND 111; 33 NW2d 615 (1948), the court found there had been insufficient compliance with a North Dakota statute requiring administrative agencies to 'make and state concisely and explicitly its findings of fact * * * .’ The court incorporated the definition of explicit contained in Webster’s International Dictionary 2d ed:
" 'Explicit is defined * * * as "Not implied merely, or conveyed by implication; distinctly stated; plain in language; clear; not ambiguous; express; unequivocal.” ’ 76 ND 111, 121; 33 NW2d 615, 619.
"In Harney v Spellman, 113 Ill App 2d 463; 251 NE2d 265 (1969), as it construed §2-401(2) of the Uniform Commercial Code, the court said:
" 'The term "explicit” means that which is so clearly stated or distinctly set forth that there is no doubt as to its meaning.’ [113 Ill App 2d 463, 465], 251 NE2d 265, 266.” Binkley Co v Teledyne Mid-American Corp, 333 F Supp 1183, 1186 (ED Mo, 1971).
Plaintiff’s alternative argument that the one year repair or replacement provision constitutes a separate contract, that was breached separately from the contract of sale, is without merit. Plaintiff’s argument is in essence that by failing to remedy its first breach, the defendant committed a second breach, giving rise to a brand new cause of action and starting anew the limitations period. The fallacy of this approach is apparent. If we adopted plaintiff’s position, limitations periods could be extended for virtually infinite time. We doubt that the Legislature intended such a result.
The trial court erred in denying accelerated judgment in the defendant’s favor.
Reversed. Costs to defendant.
"The Company warrants to the Purchaser that the equipment to be delivered hereunder will be free from defects in material, workmanship and title and will be of the kind and quality designated or described in the contract. The foregoing warranty is exclusive and in lieu of all other warranties whether written, oral, or implied (including any warranty of merchantability or fitness for purpose). If it appears within one year from the date of shipment by the Company that the equipment delivered hereunder does not meet the warranties specified above and the Purchaser notifies the Company promptly, the Company shall thereupon correct any defect, including non-conformance with the specifications, at its option, either by repairing any defective part or parts or by making available at the Company’s plant, a repaired or replacement part.” (Emphasis added.) | [
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Bashara, J.
Plaintiff Stella Vitale appeals from a grant of summary judgment in favor of the defendant, Jerry Danylak.
The plaintiff and her daughter, Maria Vitale, were injured in a collision between their car and the defendant’s. The accident occurred on January 29, 1975. The next day, on the advice of her attorney, Stella Vitale went to see a doctor. She complained of a stiff neck resulting from the accident. The doctor prescribed some medicine, presumably pain killers and/or muscle relaxants. Mrs. Vitale testified in a deposition that the stiff neck continued for around one week. She saw the doctor one or two more times.
On March 31, 1975, plaintiffs Stella and Maria Vitale filed a complaint against the defendant. The complaint alleged negligence on the part of the defendant resulting in serious impairment of the plaintiffs’ body functions. On February 11, 1976, the defendant moved for summary judgment under GCR 1963, 117.2(1), claiming that neither plaintiff had demonstrated a serious impairment of body function or permanent serious disfigurement. The trial court, in an order dated April 14, 1976, granted summary judgment as to Stella Vitale.
The plaintiff’s contention that Michigan’s no fault insurance law, MCLA 500.3101 et seq.; MSA 24.13101 et seq., violates equal protection has been resolved to our satisfaction by the decision of this Court in McKendrick v Petrucci, 71 Mich App 200; 247 NW2d 349 (1976). We agree with the McKendrick Court that the no-fault law does not violate equal protection.
Plaintiff’s second issue raises an important ques tion for Michigan civil practice. Plaintiff contends that an allegation of serious impairment of body function Is always a question of fact to be decided in a full trial. If the plaintiff is correct, the trial judge erred in granting summary judgment on the grounds that the plaintiff’s claim did not constitute a serious impairment. On more general grounds, acceptance of the plaintiffs position will foreclose the application of summary judgment in all cases where a plaintiff has alleged serious impairment of body function or permanent serious disfigurement as a prerequisite for maintaining a negligence action for non-economic losses arising from an automobile accident.
Our decision on this issue hinges on the pivotal term "serious”. The plaintiff argues that only a jury or judge sitting as a trier of fact can decide if an alleged injury is "serious” because the term inherently requires that a qualitative choice be made. Such an analysis, which of necessity will involve some degree of personal opinion, is contended to be beyond the scope of inquiry on a motion for summary judgment. The defendant responds that if the term "serious” is capable of definition by a jury it is also possible for the trial judge to decide, after accepting as true all of the plaintiffs factual allegations, that no reasonable jury would find the injury sustained to be serious. We agree with the defendant that summary judgment was appropriate in the present case.
We are not unmindful of the decision reached in McKendrick v Petrucci, supra. The McKendrick Court held:
"Had the Supreme Court not previously addressed the issue, even in what is perhaps dicta, we would be inclined to say that the decision whether a particular impairment constitutes a serious impairment of body function is for the court to make. The court appears to be in a better position than the jury to discern legislative intent and to evaluate the gravity of an injury in relation to that intent. This would allow for preliminary termination of actions, such as the present one, where the cause and extent of an impairment are not disputed..
"However, we feel constrained to defer to the Supreme Court’s discussion of the issue and to assign to the trier of fact the question whether a serious impairment of body function exists. Where resolution of a case requires the trier of fact to make 'qualitative inferences’, summary judgment will usually not be appropriate. * * * Since it cannot be said with certainty that no reasonable jury could view plaintiffs impairment as serious, summary judgment was improper.” (Citation omitted.) 71 Mich App at 212.
The McKendrick Court’s reliance on language of the Michigan Supreme Court refers to the decision in Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441; 208 NW2d 469 (1973). The Supreme Court was faced with the question of whether the phrases "serious impairment of body function” and "permanent serious disfigurement” were sufficient for legal interpretation. The Court held:
"[T]hat such phrases are capable of legal interpretation and, indeed, that juries or judges sitting without juries frequently have and do interpret comparable phrases bearing upon various facets of the law. Such findings result from denominated fact questions and thus are within the exclusive province of the triers of fact. Only when interpretation approaches or breaches permissible limits does it become a question of law for the Court. Such questions must be approached on a case by case basis. ” (Emphasis added.) 389 Mich at 477-478.
We do not read the language of the Supreme Court as a complete prohibition of the use of summary judgment whenever a "serious impairment” or "permanent serious disfigurement” is alleged in the pleadings. While we recognize that generally the trier of fact must make the qualitative decision of whether a particular injury is serious or permanent, it does not follow that the trial judge is in all cases precluded from consideration of those questions.
The Supreme Court held that where the legal interpretation of the terms in question "approaches or breaches permissible limits” the interpretation becomes a question of law for the trial court. While the opinion did not specify where the "permissible limits” are drawn, this Court is of the opinion that if any class of cases could approach such limitation, the case at bar must be included in that class. The plaintiffs sole injury arising from the accident was a stiff neck, which was treated with minimal medication and subsequently disappeared within a week. While not intending to denigrate the plaintiffs suffering, this Court is left with the conclusion that her injury was, at best, minor. We do not feel that the trial judge erred in finding that her injury did not meet the standard of "serious impairment of a body function”.
The statute’s elimination of tort liability for noneconomic damages, except where the enumerated conditions result, is inherently directed toward a reduction in the number of litigated suits. The McKendrick Court succinctly outlined this policy objective:
"Procedure, of course, should serve the substantive goals that law seeks to achieve. One of the obvious goals of a scheme of no fault automobile reparations is to keep minor personal injury cases out of court. This is not necessarily an end in itself, since it also furthers the objective of returning more of the automobile insurance premium dollars to accident victims. But when the decision that an injury falls within the class of injuries that, under no fault, should be excluded from judicial remedy is only made when the litigation process has been completed, much of the desired efficiency is lost.
" '[I]f the procedural system cannot find a way to keep cases that belong in no-fault out of the courthouse, the system is not going to work.’ Schwartz, No Fault Insurance: Litigation of Threshold Questions under the New York Statute—the Neglected Procedural Dimension, 41 Brooklyn L Rev 37, 53.” 71 Mich App at 211.
If summary judgment is held to be unavailable in any case where the plaintiff alleges an injury in one of the required categories, this desired efficiency will be at best wishful thinking. The result of requiring trial where the injury alleged is of a clearly superficial nature would perpetrate a system of needless litigation. We do not believe the Legislature intended to foreclose a trial judge’s ability to decide such cases at the earliest possible date.
In holding that summary judgment is available where the alleged injuries fall below certain definitional limits we do not mean to impose any strict rules for formulation of those limitations. Terms such as "serious” do not easily lend themselves to a delineated set of guidelines. As stated by the Supreme Court, each case must be handled individually. We are confident that the trial bench can, as in all cases of summary judgment, exercise this procedure with care and concern for justice.
Affirmed. Costs to defendant.
MCLA 500.3135; MSA 24.13135. Liability for noneconomic losses also remains where a death has resulted.
The McKendrick Court held that summary judgment was improper where the plaintiff had alleged suffering persistent pain in her shoulder and tendonitis arising out of an accident. The Court found it was not certain that a reasonable jury could not find this injury to be serious. Even under this Court’s analysis the facts alleged in McKendrick would have precluded summary judgment. | [
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N. J. Kaufman, J.
A Wayne County Circuit Court jury denied plaintiff recovery against defendants General Electric Co. (GE) and Graybar Electric Co. (Graybar) in this action for indemnity or contribution. Prior to the case being submitted to the jury, at the close of plaintiff’s proofs, defendant Environmental Designs Associates (Environmental) was granted a directed verdict by the trial judge. This appeal is taken from these adverse determinations.
While the record is vast, only certain facts, correctly set forth in plaintiff’s brief, are necessary to understand the posture of this case on appeal. In September,' 1971, one Anthony Rich and two co- employees were employed by Environmental, which had been engaged to paint a mural on the First National Building in Detroit. For this purpose, Environmental rented a powered scaffolding device to be used on the exterior of the building so that men and equipment could be raised or lowered to various desired positions. The staging device was designed and manufactured by Spider Staging Inc., and rented to Environmental by Spider Staging Sales Co.
Without unnecessary details, an accident occurred during the operation of this equipment which caused severe personal injuries to Rich. As a result of the accident and the serious injuries which ensued, Rich sued Spider Staging Inc., Spider Staging Sales and Richard Crudele, Spider’s sales representative who negotiated the lease with Environmental, claiming that all three either breached various warranties or were negligent. Defendants denied liability.
It appears that shortly after the accident, plaintiff Fireman’s Fund (the insurer of the two Spider Stagings) hired an electrical engineering expert to inspect the rotor brake system on the equipment. The stated findings of his inspection were that there was an accumulation of brake lining residue, worn brake linings and a scored brake drum. Eventually, plaintiff claimed, further testing showed that a solenoid, an electrical device manufactured by GE, which had been integrated into the braking system by Spider Staging, operated intermittently and then failed completely.
Consistent with these findings, defendant added GE, Graybar (the distributor of the solenoid), and Environmental as third-party defendants seeking indemnity or contribution. As noted previously, the theory against GE and Graybar was, in es sence, that through intermittent malfunctioning the solenoid caused the braking system to fail, thereby causing the accident to occur.
The theory of liability articulated against Environmental was that Environmental, purportedly by virtue of both common law and the rental agreement previously entered into, owed Spider indemnification.
Rich settled his case against Spider Stagings for $730,000. The action against Crudele was dismissed. The case then proceeded to trial on the third-party indemnity and contribution actions with Fireman’s Fund, the insurer of the two Spider Stagings and the party who paid the settlement, being substituted as the real party in interest. As noted earlier, Environmental obtained a directed verdict and the jury returned a verdict in favor of the remaining defendants.
Plaintiff presses on appeal four arguments: (a) the trial court erred in granting Environmental’s motion for a directed verdict where, we are told, the indemnity provision contained in the rental agreement unequivocally provided that the lessor (Spider) may be indemnified for its own negligence from the lessee (Environmental) for personal injuries sustained by Environmental’s employee; (b) the trial court abused its discretion by not allowing rebuttal testimony by plaintiffs expert concerning his view that there is always evidence of exterior charring on the outside of a solenoid casing that has overheated as a result of low voltage; (c) the trial court abused its discretion by not allowing plaintiffs expert to testify concerning alleged similar instances of solenoid malfunction which occurred 1966 through 1971 in laboratory tests; and (d) the trial court erred in awarding the defendants as costs, expert fees and expenses incurred in preparation for trial.
(a)
In the case at bar, the indemnity clause in question reads as follows:
"I/We the undersigned, do hereby rent and accept the above listed equipment and acknowledge that it is in good working condition and agree to pay the stipulated rental therefor and agree to take care of all the said equipment and to use it in a proper manner and agree that in the event any of the rented equipment is lost or destroyed before it is returned, to promptly pay to the company the fair value of such rented property, in cash, and if damaged or injured in any way, to pay an amount equal to the reasonable cost of repairing the same, and further do hereby exonerate, indemnify and save harmless the company from all claims and liabilities to all parties for damage or loss to any person, persons or property in any way arising out of or during the use of said equipment. ” (Emphasis supplied.)
As a starting point in interpreting this clause, we note that:
"[t]he general rule in the interpretation of all contracts, including indemnity contracts, is to ascertain the intention of the parties. Klever v. Klever (1952), 333 Mich 179 [52 NW2d 653]; Smeader v. Mason (1954), 341 Mich 139 [67 NW2d 131]; Sobczak v. Kotwicki (1956), 347 Mich 242 [79 NW2d 471]. However, with regard to contracts indemnifying one against his own negligence, it is generally stated:
" 'It is well settled that a contract of indemnity will not be construed to indemnify the indemnitee against losses resulting to him through his own negligent acts, where such intention is not expressed in unequivocal terms.’ 27 Am Jur, Indemnity, § 15, p 464.
"In Buffa v. General Motors Corporation (ED Mich, 1955), 131 F Supp 478 at p. 482, the court stated:
" 'As a general proposition, a contract of indemnity which purportedly indemnifies against the consequences of one’s own negligence is subject to strict construction and will not be so construed unless it clearly appears from the language used that it was intended to have that effect.’
" 'It is also clear, however, that such clauses [indemnity clauses] are construed most strictly against the party who drafts them and the party who is indemnitee. Michigan Chandelier Co. v. Morse (1941), 297 Mich 41 [297 NW 64]; In re Traub Estate (1958), 354 Mich 263 [92 NW2d 480].’ ” Meadows v Depco Equipment Co, 4 Mich App 370, 375-376; 144 NW2d 844 (1966).
An examination of the principles contained in Meadows, supra, can leave no doubt that generally these indemnity provisions must clearly describe the indemnitor’s obligation to indemnify the indemnitee. The great utility of this rule, policy considerations aside, is that it prevents parties from skillfully devising arguments at a later date that highly malleable, ambiguous language, in fact, evidences the parties’ intent that one party should provide indemnity to the other even where it is for the indemnitee’s own negligence. Thus, our focus must be on whether this language clearly sets forth such an intention on the part of the parties.
Doing so, there is no basis to justify a conclusion that a clear intent on the part of the parties existed. On the contrary, the inference seems plain that the language is susceptible to many varied meanings. We think the reasoning set forth in Geurink v Herlihy Mid-Continent Co, 5 Mich App 154, 158; 146 NW2d 111 (1966), wherein the appellant put great emphasis on the sweeping language, "any damage or injury suffered on the site of the work”, is equally applicable herein:
" 'The phrase stressed heavily is indeed broad. But the broad, all-inclusiveness of language used is itself one of the indicia which the law regards as insufficient. The purpose to impose this extraordinary liability on the indemnitor must be spelled out in unmistakable terms. It cannot come from reading into the general words used the fullest meaning which lexicography would permit.’ ”
Plaintiff strenuously objects to our reliance on the rule of strict construction to affirm the trial court. Specifically, plaintiff urges that the rules of strict construction when interpreting these clauses have been relaxed by the Supreme Court’s disposition in Vanden Bosch v Consumers Power Co, 394 Mich 428; 230 NW2d 271 (1975). The order rendered there declared, in part, "[although not 'expressly’ stated in the agreement, we are persuaded from our reading of that agreement, in light of the surrounding circumstances, that the parties intended that Consumers Power be indémnified against liability for its own negligence of the type precipitating this litigation”. Vanden Bosch, p 428. What was said by the Supreme Court in Vanden Bosch must be read in light of the circumstances contained therein. No language in the Supreme Court’s order gives support to plaintiff’s reliance on that case herein. Moreover, we think this Court has previously recognized the surrounding circumstances doctrine.
"We can agree that as in Hoek v. Township of Allen-dale (1910), 161 Mich 571, 575 (21 Ann Cas 118) [126 NW 987] where the defendant told plaintiff he 'would stand back of him’ or in Rikerd v. Addison Fur Corp. (1933), 263 Mich 436, 438 [248 NW 862] where one assured told another that he would not 'stand any loss,’ that it was in the province of the jury to determine the intention of the parties.” (Emphasis in original.) Meadows, supra, at 377.
See also Klann v Hess Cartage Co, 50 Mich App 703; 214 NW2d 63 (1973).
But it is clear that before a party can avail himself of this doctrine, these surrounding circumstances must be demonstrated. Such is not the case here.
In the case at bar, Crudele testified for Spider that no one from Environmental saw the equipment rental form contract containing the indemnity clause prior to the equipment’s delivery to Environmental. Crudele further testified that there was no discussion of the indemnity clause between himself and Mr. O’Haverty, Environmental’s president, when the latter signed the contract in Crudele’s presence on the delivery of the equipment. Significantly, at no other time, Crudele conceded, was this contractual provision discussed. This hardly amounts to the type of surrounding circumstances from which the clear intention of the parties can be gleaned.
For the reasons stated above, we think the trial judge correctly granted Environmental a directed verdict.
(b)
At trial, plaintiff’s expert, one Squillace, testified on direct examination that it was his opinion that the solenoid failure or malfunction was the result of a manufacturing defect. Without being able to specify exactly what the manufacturing defect was, Squillace testified that it could have occurred in one of three ways. However, after specifying these three ways, he did recognize on direct examination that there could be other causes for solenoid failure, including overheating from low voltage.
Defendant’s expert, Schultz, responded, as expected, that there was no manufacturing defect in the solenoid. He contended the defect in the brakes could have occurred in any number of ways. On cross-examination he was asked:
"Q (By Mr. Joselyn continuing). Now, when under voltage is the cause, if under voltage is the cause of solenoid failure, are you not also going to see some evidence of that, physical evidence of that on the outside of the exterior portion of the solenoid such as a searing or burning or anything of that kind?”
He replied:
"A Again, that is not necessary. Overheating could cause a solder to come loose or something to open without burning up the coil completely.”
Thereafter, plaintiff proffered rebuttal evidence on a separate record to "demonstrate through expert testimony that overheating in the field always causes some exterior evidence of damage”.
After hearing the offered testimony, the trial judge refused to allow the testimony into evidence. Plaintiff claims reversible error was occasioned by this refusal. We disagree.
It is well settled that the scope of rebuttal in civil cases is within the sound discretion of the trial judge. See, e.g., Doyle Vacuum Cleaner Co v F J Siller & Co, 55 Mich App 601; 223 NW2d 86 (1974), and Barrows v Grand Rapids Real Estate Board, 51 Mich App 75; 214 NW2d 532 (1974). The trial judge rejected this evidence because, among other reasons, it properly belonged in the case in chief. We note that the plaintiff previously went into this area in his case in chief. We are of the view that this case falls into the category of those where "the line of demarcation between rebuttal evidence and that which should properly be given in chief * * * is more or less obscure”. Barrows, supra, p 97. Thus, the matter was within the sound discretion of the trial court; and it was not abused herein. Moreover, we note that any conceivable prejudice by this ruling was alleviated by the trial judge’s great liberality in allowing other rebuttal evidence in. Doyle, supra.
(0
At trial, plaintiff attempted to introduce evidence that there had been previous laboratory failures of GE solenoids and, moreover, that these failures had been communicated to both GE and Graybar. Also, plaintiff sought to admit the results of laboratory tests performed on the solenoids in 1973, some two years after the accident occurred. The trial judge refused admittance of this evidence based upon his view that the probative value of the evidence was outweighed by its prejudicial effect.
The general rule in allowing evidence of this type was set forth in Savage v Peterson Distributing Co, Inc, 379 Mich 197, 202; 150 NW2d 804 (1967), wherein the Court stated:
" 'An issue as to the existence or occurrence of partic ular fact, condition, or event, may be proved by evidence as to the existence or occurrence of similar facts, conditions, or events, under the same, or substantially similar, circumstances.’ ”
With this in mind, we are again urged to find an abuse of discretion in the trial judge’s refusal to admit this proffered evidence. We decline. The trial judge opined, and the plaintiff concedes, that the tests sought to be admitted by plaintiff, where the solenoids had failed completely in laboratory tests, were unlike the situation herein where the solenoid had operated in the field, but later was alleged to have intermittently malfunctioned. We cannot disagree with him.
(d)
As noted earlier, plaintiff objects to the taxation, as an item of costs, of the preparation fees incurred by the prevailing parties’ expert witnesses. MCLA 600.2164; MSA 27A.2164, has been consistently construed to mean that the trial court is empowered in its discretion to authorize expert witness fees, including preparation fees. Haynes v Monroe Plumbing & Heating Co, 48 Mich App 707, 721; 211 NW2d 88 (1973), Caradonna v Thorious, 17 Mich App 41, 46-47; 169 NW2d 179 (1969), Gundersen v Village of Bingham Farms, 1 Mich App 647, 649; 137 NW2d 763 (1965), State Highway Commissioner v Rowe, 372 Mich 341; 126 NW2d 702 (1964). Thus, no error was occasioned by the trial judge’s actions here.
For the reasons hereinabove stated, we affirm. Costs of this appeal to defendants.
We note that initially recovery was also sought against Environmental by way of contribution. This ground, however, was abandoned during trial. | [
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Weaver, J.
Defendant Charles Ray Fisher was twice convicted by a jury of first-degree murder of his wife. MCL 750.316; MSA 28.548. Both convictions were set aside, the first by the trial judge for alleged prosecutorial misconduct. The second conviction came before this Court following a decision by the Court of Appeals that none of the eleven issues raised by defendant required reversal. This Court decided defendant had been denied a fair trial because of the admission of hearsay evidence regarding the victim-wife’s state of mind, peremptorily reversed his conviction, and remanded the case to the trial court for a third trial.
Before a third trial, the prosecutor moved for permission to introduce certain oral and written statements of the victim-wife that were relevant to the issue of motive and premeditation. The trial judge granted the motion. The Court of Appeals denied defendant’s application for leave to appeal, and denied rehearing. This Court granted leave to appeal solely on the issue whether the trial court erred in granting the people’s motion to admit the decedent-wife’s oral and written statements with conditions. We affirm the trial court’s ruling and hold that the trial court did not err, and that the admission of evidence in accordance with the trial court’s ruling was proper.
i
LAW OP THE CASE
Defendant argues that this Court rejected in toto the victim-wife’s oral and written statements in its earlier ruling. Defendant suggests that in our previous peremptory reversal we intended to close the door to any evidence of the decedent-wife’s state of mind. Such an argument misconstrues our order. We stated "defendant-appellant was denied a fair , trial by the admission of hearsay evidence regarding the victim’s state of mind,” and despite limiting instructions the prejudice of the evidence outweighed its probative value.
In order to reach the issue whether the trial court erred in granting the people’s motion to admit the decedent-wife’s oral and written statements with conditions, we must first determine whether or not the "law of the case” doctrine applies. The doctrine as generally stated provides:
[I]f an appellate court has passed on a legal question and remanded the case for further proceedings, the legal questions thus determined by the appellate court will not be differently deter mined on a subsequent appeal in the same case where the facts remain materially the same.
Defendant maintains that our earlier peremptory reversal left no opening for the admission of any evidence, and thus is the law of the case.
In the peremptory reversal order we stated:
[We have] concluded that the defendant-appellant was denied a fair trial by the admission of hearsay evidence regarding the victim’s state of mind. . . . While limiting instructions were given in this case, we believe that under the circumstances there was such a great likelihood of prejudice that the evidence should have been excluded because the relevance of the evidence was substantially outweighed by the prejudice. MRE 403. [Emphasis added.][ ]
In light of the order and in preparation for the third trial of defendant, the people moved to admit only "relevant, nonhearsay or hearsay excepted evidence that was not substantially more prejudicial than probative, with the further understanding that the trial court give the jury a strongly worded cautionary instruction during preliminary instructions, during trial, and during the court’s final charge to the jury . . . .”
This evidence was broken down into nine categories.
1. Statements by decedent-wife regarding her feelings for the defendant.
2. Statements by decedent-wife regarding her feelings about the state of her marriage to the defendant.
3. Statements by decedent-wife about or relationships with men other than the defendant.
4. Statements by decedent-wife about her desire to pursue an education and career in transcultural nursing.
5. Statements about decedent-wife’s intent to enter Wayne State University’s program in transcultural nursing.
6. Statements about decedent-wife’s desire for independence from the defendant.
7. Statements about decedent-wife’s insistence on visiting her cousin/lover in Germany.
8. Statements about decedent-wife’s intentions to divorce or separate from the defendant during the marriage.
9. Statements made by decedent-wife that directly contradict statements made by the defendant about her to others.
The trial judge ruled that statements, both oral and written, that were shown to be relevant to the issue of motive and the elements of premeditation and deliberation would be admitted with limiting instructions. In granting the motion, the trial judge adopted the people’s recommendations, and further ruled that a list of nonhearsay evidence would be prepared by the parties, that objections to entry of the evidence could be made in front of the jury, but that the evidence would be admitted.
Though defendant argues to the contrary, the trial court was acting within its power in so ruling. As we stated in Sokel v Nickoli, 356 Mich 460, 464; 97 NW2d 1 (1959), "The power of the lower court on remand is to take such action as law and justice may require so long as it is not inconsistent with the judgment of the appellate court.” Likewise, the doctrine of the law of the case has no application where a case is remanded without directions to the lower court; in such a case the lower court would enjoy the same power as if it made the ruling itself. Lyon v Ingham Circuit Judge, 37 Mich 377 (1877); Garwood v Burton, 274 Mich 219, 222; 264 NW 349 (1936).
Though clearly this Court felt some evidence of the victim’s state of mind was inadmissible hearsay, more prejudicial than probative, and not cured by limiting instructions, defendant’s position that all of the proffered evidence in categories 1 to 9 was meant to be excluded is not justified. To sanction such a result would not further the causes of justice. As stated in Taines v Munson, 42 Mich App 256, 259-260; 201 NW2d 685 (1972):
To straightjacket proceedings subsequent to a decision on a case by an appellate court by making assumptions regarding the disposition of arguments which the appellate court did not see fit to consider is not, in our opinion, the wisest of policies.
Leave to appeal was granted in this case to resolve the apparent ambiguity surrounding this Court’s previous order.
In granting leave, we likewise asked the parties to "be as specific as possible in identifying and discussing the testimony and documents they contend should be admitted into or excluded from evidence, as the case may be.” 445 Mich 945 (1994). This the parties did not do. _
II
Within the nine discrete categories of evidence sought to be admitted are literally hundreds of proposed exhibits, many of which were admitted during the second trial of sixteen days’ duration. The trial judge stated that the parties should develop a list of oral or written statements made by the victim that were known to the defendant. The court ruled that these statements were not hearsay and that it would admit those statements that are especially relevant to the issues of motive and the elements of premeditation and deliberation. The trial court also ruléd that it would also admit certain statements made by the victim that were not known to the defendant:
The people’s intent to present certain other material not known to the Defendant but which can be properly considered to be admissible as non-hearsay circumstantial evidence as to the existence and extent of marital discord which is admissible as proof of a motive for Defendant to kill his wife will also be permitted at the trial. That material described on page 29, Sec. n and thereafter will be allowed it being the impression of the court that they are not violative of the Supreme Court’s ruling.
We agree with the conclusion reached by the trial court. It is well accepted that evidence that demonstrates an individual’s state of mind will not be precluded by the hearsay rule. Several legal scholars have commented on the nonhearsay use of such evidence:
Wherever an utterance is offered [into] evidence [for] the state of mind which ensued in another person in consequence of the utterance, it is obvious that no. assertive or testimonial use is sought to be made of it, and the utterance is therefore admissible, so far as the hearsay rule is concerned. [6 Wigmore, Evidence (Chadbourn rev), § 1789, p 314. Emphasis added.]
Likewise, in 4 Weinstein, Evidence, j| 801(c)[01], pp 801-94 to 801-96:
An utterance or a writing may be admitted to show the effect on the hearer or reader when this effect is relevant. The policies underlying the hearsay rule do not apply because the utterance is not being offered to prove the truth or falsity of the matter asserted.
Specifically, statements by murder victims regarding their plans and feelings have been admitted as hearsay exceptions in a number of jurisdictions. In United States v Donley, 878 F2d 735, 737-739 (CA 3, 1989), cert den 494 US 1058 (1990), a statement by the victim’s wife that she intended to move out of the apartment and separate from the defendant-husband was found admissible to show marital discord and motive. Likewise, in Whitmire v State, 789 SW2d 366 (Tex App, 1990), statements of the decedent-husband that he wanted to end the marriage with the defendant-wife were found admissible. See also United States v Hartmann, 958 F2d 774, 782 (CA 7, 1992), in which statements made by the victim-husband about the "dismal state of his marriage” to the defendant-wife, his removal of her as beneficiary from his life insurance policy, and statements of his fear of being killed by the defendant-wife and her codefendant lover all were found admissible under a state of mind exception to the hearsay rule.
In the.case at hand, marital discord, motive, and premeditation are all at issue. Thus, the statements of the victim-wife are admissible to show the effect they had on the defendant-husband. This testimony will not offend the hearsay rule because it does not constitute hearsay.
The victim-wife’s statements that were not known to the defendant about her plans to visit Germany to be with her lover and her plans to divorce the defendant upon her return are hearsay. They are admissible, however, because they satisfy the exception to the hearsay rule for "statement[s] of the declarant’s then existing . . . intent, plan . . . [or] mental feeling . . . .” MRE 803(3). The victim, five days before, her fatal assault, wrote in her journal:
The way I’m feeling right now is that I want to go [to Germany]. ... I am afraid if I allow my self to let my defenses down with Charles [the defendant] he will manipulate me into forgetting about the importance of my career, traveling, having children I will resent in the future. He manipulated me into marriage, . . . now by telling my father about my plan to go to Europe. I am sick of this manipulation of me. I want to get away from it.
Ill
The remaining issue is whether the probative, value of the proffered testimony is substantially outweighed by any unfair prejudice. Obviously, evidence offered against a party, by its very nature is prejudicial, otherwise there would be no point in presenting it. The pivotal consideration is whether the probative value of the testimony is substantially outweighed by unfair prejudice. MRE 403. As discussed in People v Goree, 132 Mich App 693, 702-703; 349 NW2d 220 (1984), courts must balance these two competing principles:
We are quick to dispense with the recurrent notion that evidence should be excluded under MRE 403 because it simply "prejudices” the cause of the objecting party. Obviously, evidence is offered by an advocate for the always clear, if seldom stated, purpose of "prejudicing” the adverse party. Recognizing this, the Supreme Court in adopting MRE 403 identified only unfair prejudice as a factor to be weighed against probative value. This unfair prejudice refers to the tendency of the proposed evidence to adversely affect the objecting party’s position by injecting considerations extraneous to the merits of the lawsuit, e.g., the jury’s bias, sympathy, anger, or shock.
There is no rule requiring the prosecution' to use only the least prejudicial evidence per se to establish facts at issue. Even if the defendant were to stipulate all the facts concerning the relationship between his deceased wife and himself, and to the best of our knowledge he has not offered to do so, the decision whether to admit this evidence would remain within the discretion of the trial court. See People v Hall, 83 Mich App 632, 640; 269 NW2d 476 (1978); People v Green, 74 Mich App 351, 357-358; 253 NW2d 763 (1977).
Thus it is necessary to weigh the probativeness or relevance of the evidence. Specifically, relevant evidence is any fact that is of consequence to the determination of the action. People v McKinney, 410 Mich 413; 301 NW2d 824 (1981). The purpose of admitting relevant evidence is to provide the trier of fact with as much useful information as possible. People v Hampton, 407 Mich 354; 285 NW2d 284 (1979).
Hence, the question becomes whether the statements made by the victim-wife and known to the defendant provide any facts of consequence, or in other words raise an issue of motive for the defendant to kill his wife. If they do, then they are relevant with regard to the issues of motive, premeditation, and deliberation as well.
In cases such as the instant case, in which the proofs are circumstantial and the only witness is the accused, evidence of motive would be highly relevant. People v Shaw, 9 Mich App 558, 566; 157 NW2d 811 (1968), aff’d 383 Mich 69; 173 NW2d 217 (1970). In fact, numerous prior cases have upheld the admissibility of evidence showing marital discord as a motive for murder, or as circumstantial evidence of premeditation and deliberation. We do not need to restate those holdings, but simply reaffirm them. Since the proffered evidence would illustrate the extensive marital discord in defendant’s marriage and thus provide a motive, we believe that it is highly relevant and more probative than prejudicial.
Evidence of marital discord is relevant to motive just as evidence of marital harmony would be relevant to show lack of motive. Discord or lack of discord in an ongoing relationship obviously has some tendency to make the existence of a fact in controversy more or less probable — whether or not the accused ended the relationship as it is alleged he did. Whether the marital discord is of a type that would provide a motive for murder is an issue of weight, not admissibility.
iv
In our peremptory reversal order, we excluded "hearsay evidence regarding the victim’s state of mind” where its "relevance . . . was substantially outweighed by the prejudice.” The people properly interpreted this order to mean that any of decedent-wife’s statements that expressed fear of the defendant, or that depicted significant misconduct of the defendant tending to show him to be a "bad person,” were inadmissible. However, this order did not preclude from admission the vast majority of the remaining proffered evidence. We agree with this reasoning and would find the admission of evidence in accordance with the trial court ruling proper.
Boyle, Riley, and Mallett, JJ., concurred with Weaver, J.
439 Mich 884 (1991).
The trial judge ruled:
The court will arrange for a mutually agreed upon time and place and date for the purpose of developing a list of such type of data and evidence to be used at trial. The list should as much as possible be made up of oral or written statements by the victims which were known to or by the Defendant. Such are or should be non-hearsay in nature and in a factual content. The court specifically will avoid any effort to allow the admission of the entire contents of all oral and written statements but will consider those oral and written statements which are especially relevant to the issues of motive and the elements of premeditation and deliberation.
See n 1.
Id., n 1 supra at 884.
CAF Investment Co v Saginaw Twp, 410 Mich 428, 454; 302 NW2d 164 (1981) (citations omitted).
Defendant’s sole authority for this proposition is Johnson v White, 430 Mich 47; 420 NW2d 87 (1988). Johnson is inapposite. The issue in Johnson was whether the appellate court had authority to readdress an issue that was not raised before us and that we did not direct be considered on remand. We held it did not. Id. at 49.
Note 1 supra at 884-885.
See also Meyering v Russell, 85 Mich App 547; 272 NW2d 131 (1978).
As noted in the oral argument:
Mr. Puleo: I think part of the problem is the parties have not sat down and actually compiled a list and have the judge go over those — okay, this is going to come in — this is not.
Justice Boyle: Okay, so we get to deal with it conceptually as the judge did?
Mr. Puleo: That I think is part of the problem.
On page 24 of the people’s motion, the people have itemized 9 types of statements they will seek to introduce at trial — the court sees no problem with allowing them — even over objections by the defense — but an exchange between the parties will be had.
Non-hearsay circumstantial evidence as to the existence and extent of discord shall be admitted when in the form of state ments that the victim made reasonably in point of time before her demise — this specifically relates to the purpose of establishing a motive for defendant to want to kill his wife. (Here a factor to be kept in mind is that this kind of testimony is not being offered for the proof [sic] of the matter asserted but to establish the state of mind of the person who performed the thing or made this statement.)
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
Then existing mental, emotional or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or'physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will. [MRE 803(3).]
Although relevánt, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair ' prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
"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 401.]
See also People v Nash, 110 Mich App 428; 313 NW2d 307 (1981), aff’d in part 418 Mich 196; 341 NW2d 439 (1983), evidence of motive is always relevant in a murder case; People v Mihalko, 306 Mich 356; 10 NW2d 914 (1943).
People v Rotar, 137 Mich App 540; 357 NW2d 885 (1984); People v Johnson, 24 Mich App 1; 179 NW2d 658 (1970); People v Burkhart, 165 Mich 240; 130 NW 597 (1911); People v Zabijak, 285 Mich 164; 280 NW 149 (1938); People v Lewis, 95 Mich App 513; 291 NW2d 100 (1980); People v Nash, n 13 supra; People v Furman, 158 Mich App 302; 404 NW2d 246 (1987).
Note 1 supra at 884, 885.
Assessment of the effect of particular evidence, and whether it is cumulative, distracting, or otherwise substantially more prejudicial than probative, is a contextual evaluation of the life cycle of a given proceeding. An appellate court can rarely determine in an interlocutory appeal that unfair prejudice will require exclusion of a specific piece of relevant evidence. "The probative value of . . . evidence and its true potential for prejudice is often unclear until the proofs are actually presented.” People v VanderVliet, 444 Mich 52, 90; 508 NW2d 114 (1993). The trial court will have to rule on defense objections to specific statements brought under MRE 403 in light of the proofs admitted at that point. | [
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Brickley, C.J.
At issue in this appeal is the coordination of worker’s compensation and early pension benefits pursuant to MCL 418.354; MSA 17.237(354). In particular, plaintiffs contend that they were compelled to accept early payment of their retirement benefits and are therefore exempt from coordination of these benefits under MCL 418.354(l)(d); MSA 17.237(354)(l)(d). We hold that plaintiffs’ interpretation of this statutory provision is erroneous and that MCL 418.354(l)(d); MSA 17.237(354)(l)(d) does not preclude coordination where an employee is required to accept early pension benefits. We therefore affirm the disposition of . these cases by the Court of Appeals and remand them to the hearing referees for further proceedings consistent with this opinion.
i
On February 8, 1985, Stroh Brewery Company announced its plan to close its brewery and to permanently lay off all brewery employees effective December 31, 1985. As a result of the plant closing, Stroh liquidated its employee pension plan and paid its employees pension benefits. Plaintiff Riss, age fifty-three at the time, received $64,505.13 in a lump sum. Plaintiff Drouillard, then age fifty-four, received $52,748.03 in a lump sum.
At the time the liquidation plan was announced, the contract plan administrator for the pension fund conducted meetings to explain the effect of the liquidation. Different classes of employees were invited to the meetings (salaried, hourly, able and disabled employees), and defendant prepared pension distribution applications for all employees. Riss attended one of these meetings; Drouillard did not attend the meetings and instead received his pension distribution information by mail.
At these assemblies the contract plan administrator gave all employees several forms, including a benefit election form. This form provided the employees with two choices regarding their pension benefits. First, employees could have their pension monies held in a trust, which would then be transferred to an insurance annuity until the employee requested distribution. Second, employees could take receipt of their pension benefits either in the form of a single lump-sum payment or rolled over into an individual retirement account. It is significant to plaintiffs’ argument that they were told that it would be in their best interests to reject the trust option.
Defendant’s contract plan administrator testified that he instructed Stroh’s employees that if they left their pension monies in the trust it would earn no interest and therefore it was not wise to leave the money in the trust. It is disputed whether the plan administrator told the employees that they had the option of leaving the money in the trust. However, he did advise that persons with questions about the effect of payouts on their worker’s compensation benefits should seek legal counsel.
Paul Drouillard began working for Stroh’s as a general laborer on June 4, 1956. At some point during the late 1960’s or early 1970’s, Drouillard injured his back while at work. He occasionally aggravated this injury, and he sometimes missed work as a result. On February 19, 1985, Drouillard slipped and fell on oil and allegedly sustained injuries to his neck, right shoulder, back, and musculoskeletal system. Drouillard never returned to work after this accident.
Drouillard received worker’s compensation benefits from defendant from February 20, 1985 until June 26, 1985. He filed a petition for continuing worker’s compensation on July 2, 1985. On November 20, 1985, Drouillard received the lump-sum pension payment of $52,748.03 from the trust fund. In March, 1986, the magistrate found that Drouillard had sustained an aggravation of his preexisting degenerative arthritic condition and granted an open award of worker’s compensation benefits. The magistrate held that Stroh could coordinate Drouillard’s medical and social security benefits, but held that Stroh provided insufficient proof to allow coordination of pension benefits. The Worker’s Compensation Appeal Board submitted an order reversing the magistrate in this regard, stating that the worker’s compensation payments were subject to coordination in accordance with §§ 354(l)(d) and 354(13).
Gerald Riss began work for the Stroh Brewery Company on April 2, 1956. During his employment he sustained injuries to his back, right shoulder, and wrist. Riss injured his back in 1957, 1965, and 1975. In 1965, his injuries required surgery, and he missed six months of work, returning to restricted light-duty work. In 1973, Riss injured his shoulder, which also required surgery; however, he did not miss work at that time. In 1973, and again in 1982, Riss sustained injuries to his wrist. From 1982 to 1985, this injury became progressively worse. However, he continued to work through May 28, 1985. He had surgery on his wrist two days later and was unable to return to work before Stroh closed the plant on May 31, 1985. Riss received benefits from May 31, 1985, through July 30, 1985. After recuperating from the wrist surgery, Riss was capable of returning to restricted work, but did not do so.
In May, 1988, Riss was granted an open award of worker’s compensation by the hearing referee. The hearing referee allowed Stroh to "coordinate sickness and accident benefits, unemployment benefits, and pension benefits received by plaintiff, in accordance with the [worker’s compensation] act.” The wcab opined that the funds were set aside for retirement and' because Riss did not retire, but instead was terminated, and because Stroh had shut down the plant, the payments were not for retirement. Instead, the board classified the benefits as "severance benefits] involuntarily received,” which are not within the purview of the coordination language of § 354. 1991 WCABO 761, 771.
The Court of Appeals consolidated these cases and affirmed the wcab determination in Drouillard and reversed the wcab determination in Riss. See Drouillard v Stroh Brewery Co, 199 Mich App 67; 501 NW2d 229 (1993). Citing Barr v Stroh Brewery Co, 189 Mich App 549; 473 NW2d 716 (1991), the Court determined that the lump-sum payouts were subject to the coordination language of the worker’s compensation act. Drouillard, supra at 71.
II
Worker’s compensation is one unit in a loosely connected system of wage-loss protection that also includes unemployment compensation, social security old-age, disability, and survivors benefits, aid to families with dependent children, and general assistance. Franks v White Pine Copper Div, 422 Mich 636, 654; 375 NW2d 715 (1985). Such wage-loss legislation is designed to restore to employees a portion of wages lost because of three major causes of wage loss: physical disability, unemployment, and old age. The crucial operative fact is that of wage loss; the cause of the wage loss merely dictates the category of legislation applicable. See, generally, 4 Larson, Workmen’s Compensation, § 97, p 18-9 (1995 Supp, p 106).
Because most social legislation in Michigan was implemented in unrelated fragments, failure to coordinate resulted in an accumulation of benefits. For example, before coordination, it was not unusual for an employee to collect both unemployment and worker’s compensation benefits at the same time. However, if an employee undergoes a period of wage loss, it does not follow that he should receive multiple wage-loss benefits simultaneously. An employee can experience only one wage loss and, in any logical or coherent system, should receive only one wage-loss benefit at any one time. Id.
As part of the 1981 amendments of the worker’s compensation act, the Legislature added § 354, which provides for the coordination of wage-loss benefits. The purpose of this legislation was to prevent duplicate wage-loss payments while main taining suitable wage-loss benefits. The coordination of worker’s compensation and early pension benefits pursuant to § 354 presents a complicated set of issues previously only considered by the Court of Appeals.
III
Plaintiffs concede that under MCL 418.354(l)(d); MSA 17.237(354)(l)(d), pension benefits ordinarily are subject to coordination. However, the statute itself provides exceptions. For example, subsection 354(l)(e) allows the employer to reduce the proportional amount of the pension where the employee has also contributed to the pension. Additionally, subsection 354(14) prohibits an employer from co ordinating a disability pension plan that was in existence on March 31, 1982.
Plaintiffs contend that they are exempted from coordination by MCL 418.354(12); MSA 17.237(354X12). In reference to this provision, plaintiffs contend that subsection 354(12) precludes coordination in all cases in which an employer "compels” employees to accept early retirement or pension benefits. We first note that it is not clear that plaintiffs were compelled to accept early retirement benefits. It is apparent that plaintiffs were told that the more expedient course would be to accept their pension benefits. However, it is also true that this was general advice to a disparate audience and plaintiffs were specifically instructed to seek legal advice if they had questions. However, even accepting arguendo plaintiffs’ contention that they were compelled to accept early pension benefits, we believe that the conclusion that subsection 354(12) thereby precludes coordination only follows from a forced reading of the statute.
The cardinal rule of statutory construction is to discern and give effect to the intent of the Legislature. Murphy v Michigan Bell Telephone Co, 447 Mich 93, 98; 523 NW2d 310 (1994). It has long been an accepted principle of statutory construction, in discerning the legislative will through its enactments, to construe a statute so as to give full effect to all its provisions. See, e.g., Malonny v Mahar, 1 Mich 26 (1847). Subsection 354(12) provides:
Nothing in this section shall be considered to compel an employee to apply for early federal social security old-age insurance benefits or to apply for early or reduced pension or retirement benefits. [Emphasis added.]
As indicated by the emphasized language, we be lieve a clue to the proper interpretation of subsection 354(12) can be found in the language "Nothing in this section” and "to apply.” A plain and straightforward interpretation of this provision shows that the Legislature was addressing something less than is claimed by the plaintiffs. This statute clearly and unambiguously provides that Michigan’s coordination statute itself should not be interpreted to compel application for early pension benefits.
This interpretation is supported by reading subsection 354(12) in conjunction with the rest of the coordination statute. In fact, this Court is so required; in the interpretation of statutes, effect must be given, if possible, to every word, sentence and section and, to that end, the entire act must be read to be an harmonious and consistent enactment as a whole. Dussia v Monroe Co Employees Retirement System, 386 Mich 244, 248; 191 NW2d 307 (1971). Subsection 354(3) provides that employers shall be notified of an employee’s eligibility for social security benefits and that employees shall apply for social security benefits when eligible. Subsection 354(4) provides that an employer can withhold worker’s compensation benefits until an employee timely applies for social security benefits. In light of these two provisions, subsection 354(12), and particularly its "Nothing in this section” language, manifestly means that an employer cannot withhold worker’s compensation benefits in order to "compel” an employee to apply early for social security or pension benefits.
The Legislature could have, but did not, easily written the statute to read clearly and unambiguously as the plaintiffs would like: "Coordination of benefits will not apply if the employer compels the employee to receive early or reduced pension, retirement or other benefits that can be coordinated.” We believe that subsection 354(12) was intended only to void any inference that § 354 itself might permit or encourage employers to coerce early application for social security or pension benefits by withholding worker’s compensation. It was not written to apply to all cases in which an employee is required or "compelled” to accept early retirement benefits. To have written the statute in such a manner would defeat the twin purposes of the coordination statute, i.e., the elimination of duplicative wage-loss benefits while maintaining a suitable level of wage-loss payment.
IV
Contrary to the argument of the plaintiffs, MCL 418.354(l)(d); MSA 17.237(354)(l)(d) was intended only to void any inference that Michigan’s worker’s compensation coordination statute might permit or encourage employers to coerce early application for social security or pension benefits by withholding worker’s compensation. We therefore affirm the disposition of these cases by the Court of Appeals and remand them to the hearing referees for further proceedings consistent with this opinion.
Levin, Boyle, Riley, and Weaver, JJ., concurred with Brickley, C.J.
The legislative history of MCL 418.354; MSA 17.237(354) provides:
Coordination of benefits has been a major concern of employers for years. Public Act 357 coordinated workers’ compensation with unemployment compensation (effective January 1, 1982) but failed to address coordination with Social Security and other insurance and pension plans. By coordinating workers’ compensation benefits with Social Security and other benefits, Senate Bill 595 would provide a major savings to employers in the cost of workers’ compensation while maintaining adequate benefit levels for disabled workers.
From its creation in 1912, workers’ compensation in Michigan has been intended as a means of protecting an employee’s ability to earn wages by replacing wages lost because of a disability resulting from an on-the-job injury. Since 1912, other public and private wage replacement insurance programs have appeared with the result that many employees now receive wage-loss benefits from two, three, or four different programs providing a total wage "replacement” greater than the wages the employee earned while on the job, while employers who must contribute to these programs find themselves paying more than once to replace the wages of a single employee. Such a situation is contrary to the basic philosophy of Michigan’s wage-loss system and discourages some disabled employees from returning to work. Coordination of benefits, as proposed in Senate Bill 595, would reduce the overlap between the various public and private wage replacement programs while ensuring adequate wage-loss benefits to injured employees. [Senate Legislative Analysis, SB 595, adopted as 1981 PA 203, Coordination of Benefits, Supporting Arguments (January 7, 1982).]
Barr v Stroh Brewery is the only published Michigan opinion that addresses a fact pattern similar to that presented in this case. In Barr, the plaintiff was receiving worker’s compensation when Stroh divested itself of the plaintiff’s employing unit and terminated its pension plan for those employees. The plaintiff was informed of his options, which included immediately, receiving a pension of slightly more than $600 per month or having an amount of money equal to his share in the pension plan rolled over into an ira. The plaintiff selected the second option and received a draft for over $56,000, rolling over $30,000 into an ira and keeping the balance. The Court of Appeals held that all of the monies paid to an employee from a pension fund when an employer closes its business are subject to coordination.
The application of the coordination statute in the context of pension benefits is confused by prior, conflicting Court of Appeals actions. In Knox v Stroh Brewery Co, unpublished order of the Court of Appeals, issued August 18, 1992 (Docket No. 129690), the plaintiff received a lump-sum check from the liquidated pension fund that he then rolled over into an ira. The magistrate in that case disallowed coordination, ruling that a lump-sum payout that was rolled over into an ira is not subject to coordination until the plaintiff receives the payout as taxable income. The wcac affirmed and the Court of Appeals denied the defendants’ delayed application for leave to appeal. Conversely, in Lemke v Stroh Brewery Co, unpublished order of the Court of Appeals, issued July 23, 1992 (Docket No. 130194), the Court of Appeals peremptorily reversed a wcac decision refusing to coordinate a lump-sum payment that was immediately rolled over into an ira, and then remanded Lemke to the wcac for further proceedings consistent with Barr.
The relevant subsections of MCL 418.354(1); MSA 17.237(354X1) provide:
This section is applicable when either weekly or lump sum payments are made to an employee as a result of liability pursuant to section 351, 361, or 835 with respect to the same time period for which . . . pension or retirement payments pursuant to a plan or program established or maintained by the employer, are also received or being received by the employee. Except as otherwise provided in this section, the employer’s obligation to pay or cause to be paid weekly benefits other than specific loss benefits under section 361(2) and (3) shall be reduced by these amounts:
(d) The after-tax amount of the pension or retirement payments received or being received pursuant to a plan or program established or maintained by the same employer from whom benefits under section 351, 361, or 835 are received, if the employee did not contribute directly to the pension or retirement plan or program.
MCL 418.354(3); MSA 17.237(354)(3) provides:
In the application of subsection (1) any credit or reduction shall occur pursuant to this section and all of the following:
(a) The bureau shall promulgate rules to provide for notification by an employer or carrier to an employee of possible eligibility for social security benefits and the requirements for establishing proof of application for those benefits. Notification shall be promptly mailed to the employee after the date on which by reason of age the employee may be entitled to social security benefits. A copy of the notification of possible eligibility shall be filed with the bureau by the employer or carrier.
(b) Within 30 days after receipt of the notification of possible employee eligibility the employee shall:
(i) Make application for social security benefits.
(ii) Provide the employer or carrier with proof of that application.
(iii) Provide the employer or carrier with an authority for release of information which shall be utilized by the employer or carrier to obtain necessary benefit entitlement and amount information from the social security administration. The authority for release of information shall be effective for 1 year.
MCL 418.354(4); MSA 17.237(354)(4) provides:
Failure of the employee to provide the proof of application or the authority for release of information as prescribed in subsection (3) shall allow the employer or carrier with the approval of the bureau to discontinue the compensation benefits payable to the employee under section 351, 361, or 835 until the proof of application and the authority for release of information is provided. Compensation benefits withheld shall be reimbursed to the employee upon the providing of the required proof of application, or the authority for release of information, or both.
We recognize that while subsection 354(12) refers to both social security and pension benefits, subsections 354(3) and (4) refer only to social security benefits. We note that on submission, the House of Representatives amended subsection 354(12) and added the language "or to apply for early or reduced pension or retirement benefits.” 1981 Senate Journal 2575. The original bill contained reference only to federal social security old-age insurance benefits. We interpret this amendment to subsection 354(12) to require that pension benefits be treated as the statute clearly intends social security benefits be treated. Any other interpretation of this statute would lead to incongruous and unreasonable results. | [
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Per Curiam:.
The Wayne County Prosecuting Attorney sought to have the defendants’ business establishment padlocked as a nuisance. Instead, the circuit court issued only an injunction against certain activities. The Court of Appeals affirmed. We vacate the judgments of the circuit court and the Court of Appeals and remand the case to the circuit court for reconsideration.
I
The Court of Appeals provided this account of the facts:
"Dizzy Duck” is an assumed name registered by defendant Greenfield Eight Restaurant Company, Inc. Defendant Boyce J. Maxwell is the incorporator, president, resident agent, and owner-operator. The Dizzy Duck is a small establishment located in Detroit, where patrons pay an entrance fee for admission, which offers adult entertainment, such as nude dancing.
Six police officers gave testimony concerning an undercover investigation and subsequent raid on the Dizzy Duck. Four employees of the Dizzy Duck also testified; three of them were dancers and were granted immunity. There were four activities that were investigated: nude dancing, "lap dancing,” the "Fantasy Room,” and assignation for prostitution.
Concerning the nude dancing, there was a stage area for individual and group female nude dancing. There was also a plexiglass shower enclosure on stage for "shower dances” where patrons would pay extra to see a dancer shower.
For a fee of $20 for one song, or $30 for two songs, the female employees would perform a "lap dance” for a customer. During these lap dances a dancer would straddle a customer’s legs and move herself about the customer’s legs and groin area while holding onto either the customer or a pair of handles mounted on the wall. Although some touching of dancers by patrons was observed, an employee hired for security testified that it was a rule that customers were not supposed to "get too friendly” with their hands during lap dances.[ ]
The women also solicited to take the men back to the Fantasy Room, which was in a more se eluded area of the building. For a fee upwards of $65, customers would be placed in a room opposite one of the dancers, where they could see each other through a plexiglass partition. The women would then dance and sometimes masturbate, while the men watched. The women encouraged the men to masturbate along with them while in the Fantasy Room.[ ] Evidence technicians found sperm in samples taken from the fantasy room walls and plexiglass partition.
There was also testimony by the police officers that while on the premises the dancers would solicit for acts of prostitution to occur off the premises. One of the dancers also testified that solicitation for prostitution occurred at the Dizzy Duck and she had done so herself. She explained that if the dancers paid their manager enough money, they "could get away with anything,” including leaving with a customer. Another employee who was hired for security testified that the rules of the Dizzy Duck prohibited prostitution or solicitation for prostitution. However, there was some evidence that the owner knew about his dancers’ soliciting for prostitution because at least one of the dancers made complaints to him about different treatment in letting certain women leave with customers. [203 Mich App 250, 253-255; 511 NW2d 907 (1994).]
In light of this evidence, the prosecutor filed a civil action, asking the circuit court to padlock the Dizzy Duck on the ground that it was a nuisance under MCL 600.3801; MSA 27A.3801. _
Following an evidentiary hearing, the circuit court denied the defendants’ motion for directed verdict. Later, the court made a finding that assignation had occurred at the Dizzy Duck, and that it was an abatable nuisance. The court also found that lap dancing, when it involved contact between the groin areas of the employee and the customer (even when those areas are clothed) was an abatable nuisance.
However, the circuit court concluded that these activities were not "so pervasive” that it was necessary to padlock the Dizzy Duck. Instead, the court entered an order in which it enjoined:
1. Assignation, or the solicitation for acts of prostitution;
2. Lap dancing, where there is significant direct contact through clothing or otherwise of the female genital area and the male groin area.
Following additional proceedings on the issue whether the defendants were in contempt of that order, the circuit court entered an amended order that enjoined:
1. Assignation, or the solicitation for acts of prostitution;
2. Lap dancing, where there is significant direct contact through clothing or otherwise of the female genital area and the male groin area, and where the main purpose of contact is for masturbation of the male penis. [Emphasis supplied.]
The prosecutor appealed both orders, arguing that the trial court should have defined the nuisance more broadly, and should have padlocked the Dizzy Duck rather than merely enjoining certain activities. The defendants cross appealed, essentially arguing that the circuit court’s order was too broad.
Over a vigorous dissent, the Court of Appeals affirmed the orders of the circuit court.
The prosecutor has applied to this Court for leave to appeal.
ii
In its opinion, the Court of Appeals considered the meaning of the statutory phrase "lewdness, assignation or prostitution.” It appears that all three panel members agreed both that "assignation” means solicitation of acts of prostitution, and that assignation was taking place on the premises.
The majority and the dissent were in wide disagreement, however, regarding the meaning of the words "prostitution” and "lewdness.” The majority held that prostitution is limited to "the performance of sexual intercourse for hire,” meaning penile-vaginal penetration. 203 Mich App 258, 260. Lewdness was defined by the majority as "those sexual acts of a nature similar to sexual intercourse: anal intercourse, fellatio, cunnilingus, and masturbation performed on another where done for hire.” 203 Mich App 260.
Thus, the majority "easily” concluded that nude dancing is not prostitution or lewdness. 203 Mich App 257. The majority further held that lap dancing is not prostitution and "does not constitute lewdness unless it is done for the purpose of masturbation.” 203 Mich App 260. The fantasy-room activities were said not to be lewdness, since the masturbation "was performed by the customer on himself while watching a dancer. Thus, there was no masturbation performed for hire.” 203 Mich App 260.
Regarding whether it was necessary to padlock the Dizzy Duck, the majority said that, "[w]hile. abatable activity occurred on the premises of the Dizzy Duck, it is not a bordello.” The majority thus found it "eminently reasonable for the trial court to limit its remedy in the first instance to merely enjoining the prohibited conduct rather than closing the establishment.” 203 Mich App 261-262.
The dissenting opinion in the Court of Appeals disagreed with the majority’s limited definitions of both prostitution and lewdness. The dissent proposed a broad definition of prostitution, stating that. "[i]n my view, prostitution is the conduct of all persons, male or female, who engage in sexual activity as a business.” 203 Mich App 265. The dissent found it "quite probable that the Legislature that adopted the red light abatement act in 1915 meant the term lewdness’ to describe that activities of a male involved with a female prostitute,” id. at 272, but also cited approvingly more general dictionary definitions of lewdness, id. at 272-273, as grounds for disagreement with the majority’s limitation on the reach of that term.
Of more importance to the disposition of the present case, the dissent disagreed with the majority’s effort to articulate distinct meanings for the terms "prostitution” and "lewdness,” id. at 266, fearing that doing so in the present civil action could impose unforeseen and unwarranted complications in the criminal arena:
[T]he majority’s effort to distinguish acts of prostitution from acts of lewdness could result in the unnecessary elevation of the burden of proof in the context of the criminal enforcement of prostitution offenses. Under current practice, the prosecutor need not prove the exact nature of the sexual activities purchased. The majority’s construction will permit an objection for failure to allege whether an act of prostitution or an act of lewdness has been committed, and may require further specificity in proof.
We do not need to draw a bright line distinction between the terms "prostitution” and "lewdness” in order to resolve this case. Our former cases have never done so. The terms "prostitution” and "lewdness” certainly historically have had overlapping elements and will continue to do so.
In light of its analysis of the definitions of prostitution and lewdness, as well as the overlap in the reach of those terms, the dissent found that the lap dancing, some of the nude dancing, and the fantasy room activities at the Dizzy Duck were either prostitution or lewdness. The dissent opined that all the lap dancing constituted the performance of an unlawful sexual act for hire and thus fell within a broad definition of prostitution, as well as being lewd conduct. The dissent found the majority’s distinction between ordinary lap dancing and lap dancing for the purpose of masturbation "essentially unenforceable.” Id. at 270-271. While not explicitly eliminating the other activities in question from its definition of prostitution, the dissent focused its analysis of the nude danc ing described in the dissent and the fantasy room activities as abatable lewd activity associated with prostitution.
The dissent favored padlocking the Dizzy Duck, because "the remedy fashioned was inadequate to cure the proven nuisances . . . .” 203 Mich App 263. The dissent concluded:
I dissent from the majority’s attempt to fashion a new definition of prostitution and lewdness not heretofore recognized in Michigan. Michigan’s citizens must be permitted to call a halt to urban blight and contamination of their neighborhoods from red light districts. The people of the State of Michigan have declared their intent; the executive branch has moved to enforce that intent through legitimate means. All the process that is due, and then some, has been afforded the defendants in this state’s courts. The remedy fashioned is inadequate to cure the harms. [203 Mich App 276.]
Ill
A
In People v Warren, 449 Mich 341, 347; 535 NW2d 173 (1995), we held that "sexual stimulation of a customer’s penis by direct manual contact, in exchange for money,” is prostitution. In reaching this conclusion, we rejected the narrow view offered by the Court of Appeals majority in the present case, who would limit the word "prostitution” to sexual intercourse (penile-vaginal penetration). We declined in the criminal action at issue in Warren, however, to undertake the task of determining the exact range of behavior that would fall within the term "prostitution.” In the present civil action, we find it similarly unnecessary to categorize the activity at the Dizzy Duck as either prostitution or lewdness. It is also unnecessary to the disposition of the matter before us for this Court to adopt the broad definition of prostitution proposed in this case by the dissent.
The nuisance abatement statute includes within its list of abatable conduct both lewdness and prostitution. The majority in the Court of Appeals held that only- certain instances of lap dancing constituted lewdness, while finding that other lap dancing, as well as all the nude dancing and fantasy room activities, did not constitute either lewdness or prostitution. The dissent disagreed, finding that all the activities in question were either lewdness or prostitution, and that the conduct was so pervasive at the Dizzy Duck as to warrant padlocking the establishment. Because we agree with the dissent that all the conduct in question constituted at least lewdness, we find it unnecessary to consider whether some of the activity might also constitute prostitution, or if the definition of those terms overlap.
B
Although variations of the word "lewd” appear in several Michigan statutes, the decisions of this Court provide no clear guidance with regard to the meaning of the word. In State ex rel Wayne Co Prosecutor v Diversified Theatrical Corp, 396 Mich 244; 240 NW2d 460 (1976), this Court treated the word "lewdness” as being essentially synonymous with the word "prostitution.” However, two things must be said of Diversiñed Theatrical. First, it concerned a motion picture theater. We are not called on today to rule on an issue concerning filmed or videotaped depictions of sexual activity. Principles governing the regulation of filmed activity cannot automatically be applied to live exhibitions. Second, this Court expressed substantial reservations about the Diversified Theatrical analysis in Michigan ex rel Wayne Co Prosecutor v Levenburg, 406 Mich 455; 280 NW2d 810 (1979). Noting that Diversiñed Theatrical indicated that only acts of assignation or prostitution are "lewd,” 396 Mich 248-250, this Court said in Levenburg, "We do not accept this dictum as controlling . . . .” 406 Mich 463. This Court then focused on the word "assignation,” leaving for another day the term "lewdness.” 406 Mich 464. The Court did not explore further the meaning of the word until it decided Michigan ex rel Wayne Co Prosecutor v Bennis, 447 Mich 719; 527 NW2d 483 (1994).
Statutory terms are normally interpreted in light of their ordinary meaning, MCL 8.3a; MSA 2.212(1), but definitional aids provide only general instruction in the present case. _
Thus, we are left with the fact that "lewdness” has been understood to have a meaning closely related to the word "prostitution.” Diversified Theatrical, 396 Mich 250, n 13; Chicago v Geraci, 30 Ill App 3d 699, 702-704; 332 NE2d 487; 80 ALR3d 1013 (1975). The breadth of what might be lewd cannot be determined, but lewdness does include some sexual activities that stop just short of prostitution, as well as scandalous sexual exhibitions.
As described in the record of this case, lap dancing is lewd. An almost-nude female employee squirming in the lap of a customer for his sexual arousal is conduct that carries one right up to the line where prostitution begins. In State ex rel Miller v Private Dancer, 83 Ohio App 3d 27; 613 NE2d 1066 (1992), there is an extended discussion of whether lap dancing is lewdness. The Miller court said that "lap dancing was lewd and tended to incite sensual desire or imagination,” id. at 32, and we agree.
The activities in the fantasy room were also lewd. While there was no physical contact whatever between the employee and the customer, an exhibition of masturbation by an employee who urges a customer to masturbate in her presence is certainly a scandalous sexual exhibition. It is, therefore, lewd conduct.
For the same reasons, the nude dancing was lewd to the extent, and only to the extent, that it involved masturbation or other sexual activity, as described by the Court of Appeals dissent, on stage.
c
The circuit court found that none of the activity taking place at the Dizzy Duck was prostitution. It found two activities that were abatable nuisances —assignation for prostitution, and lap dancing when done for the purpose of masturbation. We find that all the lap dancing was lewd conduct, and that the activities in the fantasy room and a portion of the nude dancing were lewd conduct.
In light of these holdings, we vacate the judgments of the circuit court and the Court of Appeals, and remand this case to the circuit court for further consideration of the issue whether the establishment should be padlocked. MCR 7.302(F)(1).
Brickley, C.J., and Cavanagh, Boyle, Riley, Mallett, and Weaver, JJ., concurred.
During the "lap dances,” the male customers were fully clothed. The female employees were topless. Their genital areas were covered with extremely brief garments ("G-strings”).
Only in the fantasy room did male customers expose their genitalia.
Any building, vehicle, boat, aircraft, or place used for the purpose of lewdness, assignation or prostitution or gambling, or used by, or kept for the use of prostitutes or other disorderly persons, or used for the unlawful manufacture, transporting, sale, keeping for sale, bartering, or furnishing of any controlled substance as defined in [MCL 333.7104; MSA 14.15(7104)], or of any vinous, malt, brewed, fermented, spirituous, or intoxicating liquors or any mixed liquors or beverages, any part of which is intoxicating, is declared a nuisance, and the furniture, fixtures, and contents of the building, vehicle, boat, aircraft, or place and all intoxicating liquors therein are also declared a nuisance, and all controlled substances and nuisances shall be enjoined and abated as provided in this act and as provided in the court rules. Aliy person or his or her servant, agent, or employee who owns, leases, conducts, or maintains any building, vehicle, or place used for any of the purposes or acts set forth in this section is guilty of a nuisance. [MCL 600.3801; MSA 27A.3801, as amended by 1988 PA 2.]
Michigan ex rel Wayne Co Prosecutor v Levenburg, 406 Mich 455, 466; 280 NW2d 810 (1979), amended 407 Mich 1147 (1979).
Nude dancing at the Dizzy Duck frequently involved lewd live stage exhibitions outside the First Amendment’s ambit. For example, some nude dancers openly masturbated on stage. One dancer bent over and separated her buttocks to let a customer blow into her anus; another dancer sprayed breast milk on the assembled crowd, [id. at 267.]
“Nude dancing at the Dizzy Duck frequently involved lewd stage exhibitions outside the First Amendment’s ambit.” Id. at 267. "[T]he complaint alleged and the proofs established that nude dancing was substantially connected to and related to prostitution.” Id. at 268. “The activities in the Fantasy Room amounted to lewd live conduct associated with prostitution.” Id. at 275.
See also Michigan ex rel Wayne Co Prosecutor v Bennis, 447 Mich 719, 727, 743; 527 NW2d 483 (1994) (opinion of'Riley, J.).
Like the Court of Appeals, we see no error in the circuit court’s finding that assignation was taking place at the Dizzy Duck.
MCL 600.2938(1), 600.3801, 750.167(i), 750.335, 752.364(1)(b), 750.448, 750.449, 750.449a, 750.452, 750.454; MSA 27A.2938G), 27A.3801, 28.364G), 28.567, 28.579(364)(l)(b), 28.703, 28.704, 28.704(1), 28.707,28.709. .
See n 4.
Lewd. Obscene, lustful, indecent, lascivious, lecherous. The term imports a lascivious intent. It signifies that form of immorality which has relation to moral impurity, or that which is carried on in a wanton manner.
Lewdness. Gross and wanton indecency in sexual relations. Gross indecency so notorious as to tend to corrupt community’s morals. Licentiousness; that form of immorality which has relation to sexual impurity. Moral turpitude. Open and public indecency. Sensuality; debauchery.
Any act which the actor knows is likely to be observed by others who would be affronted or alarmed and hence it is a criminal offense. Model Penal Code, § 251.1. Lewdness is specifically made an offense under some state statutes, and is included under more general clauses in others. [Black’s Law Dictionary (5th ed). Citations omitted.]
In Levenburg, we rejected the notion that the words "lewdness” and "assignation” are synonymous with the word "prostitution.” We do not, however, reject the notion that the terms are closely related.
We are mindful of our experience in People v Brashier, decided with People v Lino, 447 Mich 567; 527 NW2d 434 (1994). There we were asked to determine whether the gross indecency statute was violated by conduct that was quite unfamiliar. MCL 750.338; MSA 28.570. We limited our analysis in Lino/Brashier to the facts presented in those cases, and we likewise decline here to rule on facts not before us.
In Bennis, three justices of this Court stated that "the common definition of Tewdness’ includes a lustful and obscene display of illicit sexual activity.” 447 Mich 726. Those justices also said that "it is limited to those instances in which an act of lewdness occurs in furtherance of or for the purpose of prostitution.” Id.
N 5. We are well aware that there is a body of law concerning the extent to which nude dancing may be subject to protection under the First Amendment. We offer no opinion on that subject today. Rather, we simply hold that public masturbation and sexual activity are lewd conduct. | [
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Weaver, J.
The case before us involves the intertwined evidentiary issues of undue prejudice, character, religious beliefs, and the rules of procedure regarding rebuttal.
In June, 1986, defendant Francis Vasher was babysitting his four-year-old granddaughter and two other three-year-old girls. The events of that night resulted in Vasher being shot by the father of one of the girls and convicted by a jury of three counts of first-degree criminal sexual conduct. The evidence at trial showed that defendant performed various acts of sexual penetration on all three girls.
At trial the prosecution called all three victims, several of their parents, the officer in charge of the case, and the doctor who had examined one of the victims. Vasher took the stand in his own defense. During direct examination, Vasher denied having assaulted the children. He claimed that he always treated them as he would his own children. On cross-examination, Vasher said that on the basis of the Bible, he believed fourteen was an acceptable age for a girl to bear children. However, he denied that he had said young, girls should be initiated into sex by their own family members. On rebuttal, the prosecution called Sherry Culkar, the mother of one of the victims. She testified that Vasher had told her that it used to be common practice for family members to introduce young girls to sexual intercourse.
The Court of Appeals reversed defendant’s convictions, finding that the prosecutor’s questions violated the statutory ban against inquiry into religious freedom, that certain testimony outlining defendant’s sexual philosophy was both more prejudicial than probative and inadmissible character evidence, and that certain rebuttal testimony was improper. The people sought leave to appeal, which we granted. 447 Mich 987 (1994). We reverse the decision of the Court of Appeals.
i
We turn first to the statutory ban against inquiry into religious beliefs. On cross-examination, Vasher was asked:
Q. But you do believe in having sex with young children, don’t you?
A. No, I do not.
Q. Mr. Vasher, haven’t you time and time again expressed your philosophy to a number of people that children should be taught by either their father, their brother, their uncle or their grandfather what it is like to have sex?
A. No, ma’am, never.
Q. You never said that to anyone, sir?
A. No.
Q. Have you told people, sir, that anything over twelve, it is too late.
A. No.
Q. Well, how young would you go, Mr. Vasher?
A. I think according to the Bible the Blessed Virgin was fourteen when she conceived Christ. And I believe that God makes no mistake. Apparently, fourteen is an adequate age for a woman to produce a child.
Q. And fourteen, then, is an adequate age for you to engage in sexual relationships with a child,. is that true, is that your statement?
A. If there was a love relationship, and they were wanting to get married, I think that would be between the two consenting adults.
Q. So, if you loved a fourteen year old, then you .would have sex with her, is that what you are telling us?
A. No. I am not saying that.
Mr. Cripps: Your Honor, at this point, we all know we are here on a charge involving very young children. His feelings about young .adults having premarital sex or whatever is not relevant, to the charge in relation to small children here. I am afraid we are getting far afield. I would like to lodge an objection.
Ms. Diehl: I think we are talking about having sex with minor children, which is against the law. And I think it is very relevant if his philosophy is he thinks there is nothing wrong with it.
The Court: I will sustain the objection.
Q. (By Ms. Diehl): You know who Sherry Culkar is, don’t you?
A. Yes, I do.
Q. She was married to your son, Frank, Jr., is that correct?
A. They lived together.
Q. They lived together?
A. Yes.
Q. Did you tell her that girls of thirteen should have sex with men in the family such as uncles, fathers, grandfathers so they know what sex is like, know what good sex is?
Q. (By Ms. Diehl): Did you tell Sherry Culkar that?
A. No.
Q. Did you tell Sherry Culkar it is a right or duty of a father, grandfather, uncle to instruct young females?
A. No, I did not.
Q. You have a sister by the name of Miss Philomena Hart?
A. Hurd. Yes. Yes, I do.
Q. Did you tell her that anything over twelve years old is too old for you?
A. No, I certainly haven’t.
Q. Do you know Shirley Byers?
A. Yes, I do.
Q. Did you voice to her your philosophy concerning young girls being that they should have sex at the time their period starts or it is too late; and the best person to teach a young girl sex was her father, brother or uncle?
A. No, I did not.
Vasher argues, and the Court of Appeals agreed, that any questioning about Vasher’s "sexual philosophy” was forbidden after Vasher’s nonresponsive answer that his belief that fourteen was "an adequate age for a woman to produce a child” was based on the Bible. This one statement was the only reference made in this context of any religious belief held by Vasher. MCL 600.1436; MSA 27A.1436 provides: "No witness may be questioned in relation to his opinions on religion, either before or after he is sworn.” The threshold question is whether these questions have no reference to "opinions on the subject of religion . . . .” People v Jenness, 5 Mich 305, 319 (1858).
Clearly, the prosecutor’s question "how young would you go” was not designed to elicit defendant’s religious beliefs. Vasher’s answer, phrased in terms of the Bible and the Virgin, does bring in his religion. This nonresponsive answer does not itself create error requiring reversal. A prosecutor has no duty to caution a witness to refrain from discussing religion in an answer. People v Sommerville, 100 Mich App 470, 487; 299 NW2d 387 (1980). However, defendant did not open himself to questioning about his religious beliefs by making this voluntary statement. People v Bouchee, 400 Mich 253; 253 NW2d 626 (1977). Here the followup questions by the prosecutor did not refer to Vasher’s interpretation of the Bible, but instead focused on what Vasher believed was an adequate age for a girl to begin sexual relations. Therefore, we find no impropriety.
We wish to make clear that we in no way alter the rule set forth in People v Hall, 391 Mich 175; 215 NW2d 166 (1974), that the Legislature has forbidden that questions on the subject of religion be asked during the course of a criminal proceeding. However, a subject does not become taboo when a- witness makes a nonresponsive answer referring to religious beliefs. Fpr example, if a witness says he is truthful because his religion forbids him to lie, this answer does not preclude questioning him further about and even impeaching him on his veracity. See in contrast, the lines of questioning in People v Jenness, supra (a witness for the prosecution was asked by the defendant’s counsel whether she believed in God, and whether she had at one time disavowed a belief in a Supreme Being), People v Hall, supra (the prosecutor asked the defendant whether he believed in the Supreme Being), and People v Bouchee, supra (the prosecutor asked the defendant if he was a member of any church and followed that up by asking which church it was, the Court asked the defendant whether accepting the Bible would stop him from having sexual relations with a woman to whom he was not married, and the prosecutor asked a defense witness, a minister, whether the defendant was a religious man and further questioned him regarding whether he was a practicing Christian).
Because defendant was not questioned concerning his religious beliefs, MCL 600.1436; MSA 27A.1436 does not apply.
ii
The Court of Appeals found that the evidence showing defendant had said it was acceptable for family members to initiate young girls into sexual activity was more prejudicial than probative. MRE 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” (Emphasis added.) By omitting this key concept of "substantially outweighed,” the Court of Appeals applied the wrong standard of admissibility to the evidence.
In this context, prejudice means more than simply damage to the opponent’s cause. A party’s case is always damaged by evidence that the facts are contrary to his contentions, but that cannot be grounds for exclusion. What is meant here is an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one. In the pungent phrase of Judge Sloan in State v Rollo, 221 Or 428, 438; 351 P2d 422 (1960), the party "is entitled to hit as hard as he can above, but not below, the belt.” McCormick, Evidence (2d ed), § 185, p 439.
The Court of Appeals apparently felt that the evidence concerning defendant’s sexual philosophy was unfairly prejudicial because it might lead the jury to believe that defendant acted in conformity. Evidence presents the danger of unfair prejudice when it threatens the fundamental goals of 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). The perceived danger here is that the jury would decide that this evidence is more probative of a fact than it actually is. The Court of Appeals seems to have concluded that the jury would be shocked by the heinous nature of defendant’s expressed sexual philosophy to the extent that it would conclude that anyone capable of holding such beliefs surely also would be capable of acting on them. Our review of the record convinces us that the danger of unfair prejudice resulting from the admission of this evidence was minimal. The probative value was not substantially outweighed by its prejudice. We find no error.
in
The Court of Appeals also found that the prosecutor’s questions regarding defendant’s sexual philosophy were designed to impeach defendant’s credibility by attempting to show that he possessed a bad general character. The Court of Appeals found that these questions were "an attempt to show that he possessed repugnant beliefs and that he acted consistently with those beliefs.” This line of analysis is inaccurate.
Defendant introduced evidence that he had a close, grandfatherly, loving relationship with the girls and that this precluded him from ever harming them. On direct examination defendant testified:
Q. Now, you heard allegations of sexual activity between you and one or two of these children.
Did you at any time on that date or any date have any sexual activity with [either of the children]?
A. None whatsoever. I love those children like they are my own. They call me grandpa, Paw-Paw Frank, because they love me.
Q. Are you telling the Jury . . .
A. (Interposing): They wasn’t forced to call me Paw-Paw Frank. They did it of their own volition.
Q. Are you telling the Jury the truth?
• A. Absolutely. I am a Born Again Christian. I do not lie.
Mr. Cripps: No further questions.
Once a defendant has placed his character in issue, it is proper for the prosecution to introduce evidence that the defendant’s character is not as impeccable as is claimed. People v Johnson, 409 Mich 552, 558-560; 297 NW2d 115 (1980). Defendant attempted to establish that he was a loving family man who would not consider molesting young girls; the prosecution was entitled to rebut this. On cross-examination, the prosecutor attempted to rebut the defendant’s assertion of good character by questioning the defendant about his views regarding sex with family members and young girls. Such rebuttal testimony is admissible under MRE 404(a)(1).
IV
Finally, we consider whether the Court of Appeals was correct in finding certain rebuttal testimony was improper.
On rebuttal, the prosecution called Sherry Culkar, who had previously lived with Vasher’s son and is the mother of one of the victims. The disputed testimony is as follows:
Q. (By Ms. Diehl): And what is Mr. Vasher’s philosophy about having sex with young children?
A. From what I understand, when we all lived in the house on Lincoln Street, when [the victim] was first born, he told me about way back in the olden days, the farmers and the Indians used to break the children, so that in later life they would know whether they got a fair deal or not.
Q. Did he tell you it was the right and duty of fathers, grandfathers, uncles to instruct young females so they would know what good sex was?
A. Exactly.
The Court of Appeals held that this violated either the rule that extrinsic evidence may not be used to impeach a witness on a collateral matter, citing People v Teague, 411 Mich 562, 566; 309 NW2d 530 (1981), or the rule that the prosecutor may not divide the evidence on which the people rest their case, citing People v Losey, 413 Mich 346, 352; 320 NW2d 49 (1982).
A party is free to contradict the answers that he has elicited from his adversary or his adversary’s witness on cross-examination regarding matters germane to the issue. As a general rule, however, a witness may not be contradicted regarding collateral, irrelevant, or immaterial matters. 98 CJS, Witnesses, §§ 632-633, pp 649-655 and People v McGillen No 1, 392 Mich 251; 220 NW2d 677 (1974). Here, the rebuttal evidence was narrowly focused on refuting defendant’s denial that he had told Ms. Culkar about his belief that it was acceptable for family members to initiate young girls into, sexual activity. This in turn was in direct response to defendant’s testimony on direct examination in which he stated that he had not had sexual activity with the young girls because "I love those children like they are my own. They call me grandpa, Paw-Paw Frank, because they love me.” Because this was a matter so closely bearing on defendant’s guilt or innocence, it was not error for the prosecutor to have impeached defendant.
Next we turn to the question whether this evidence should have been introduced on direct examination rather than on rebuttal. The longstanding rule is that it is not proper to divide the testimony on which the people propose to rest their case, and nothing that tends to prove the commission of the crime itself or its immediate surroundings can be classed as rebutting evidence under ordinary circumstances, if at all. People v Quick, 58 Mich 321, 323; 25 NW 302 (1885). The purpose of this general rule is to prevent the prosecution from "sandbagging” the defendant by introducing new, substantive evidence on rebuttal that should have been introduced in its case in chief. People v Bennett, 393 Mich 445; 224 NW2d 840 (1975). This rule is generally aimed at preventing the unfair ordering of proofs. People v Dyson, 106 Mich App 90, 97; 307 NW2d 739 (1981). As the Dyson Court recognized, "the Bennett opinion is aimed at the ruse of eliciting a 'denial’ of some statement not properly in the case so as to interject an issue under the guise of rebutting the 'denial.’ The 'denial’ by the defendant is used as a spring board for introducing substantive evidence on a collateral matter.” Id. at 98. Here, however, we have already recognized that the rebuttal testimony did not concern a collateral matter, but, instead focused on evidence that was material and relevant.
This Court has stated that when the rebuttal testimony at issue was a simple contradiction of the defendant’s testimony that directly tended to disprove the exact testimony given by the. witness, it was proper rebuttal testimony. People v Sutton (After Remand), 436 Mich 575, 597, n 23; 464 NW2d 276 (1990). Here, the rebuttal evidence was properly limited to being a simple contradiction that refuted a specific statement made by the defendant on cross-examination. People v Sutton, supra; People v McGillen No 1, supra at 266-267. We find that the trial court did not abuse its discretion in allowing the evidence to be admitted. People v Utter, 217 Mich 74, 83; 185 NW 830 (1921).
We reverse the decision of the Court of Appeals and reinstate defendant’s convictions and sentences.
Boyle, Riley, and Mallett, JJ., concurred with Weaver, J.
When Milford Anderson was told of an assault by defendant on his daughter, he went to talk to defendant, taking along his .22 caliber rifle. After some conversation, Anderson shot defendant in the groin. Anderson was eventually convicted of careless discharge of a firearm.
The Court of Appeals said: "Finally, whatever probative value the sexual philosophy evidence possessed, it was outweighed by its potential for unfair prejudice.”
Rebuttal is limited to the refutation of relevant and material evidence — hence evidence bearing on an issue properly raised in a case. [Bennett, 393 Mich 449.]
In his dissent, Justice Cavanagh asserts that the "Court” did not make this statement. This is a misstatement; Chief Justice Brickley expressly joined in Justice Boyle’s analysis "regarding admissibility of defendant’s responses and further questioning resulting therefrom.” People v Sutton (After Remand), 436 Mich 575, 600; 464 NW2d 276 (1990). | [
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Boyle, J.
We are asked in these cases to extend the limitation period for the civil actions brought by plaintiffs who allege they were sexually abused as children by the defendants, but were unable to timely file claims because of repression of the memory of abuse. We must decide whether (1) the discovery rule is applicable to determine the time . of accrual of the claims triggering the running of the limitation period for plaintiffs’ tort actions of assault and battery, negligence, and intentional infliction of emotional distress, or (2) if the limitation period can be extended by the one-year statutory grace period allowed after removal of the disability of insanity under MCL 600.5851(1); MSA 27A.585K1).
We hold that neither the discovery rule nor the insanity disability statute addresses the exception claimed to extend the time allowable for bringing suit in these cases. The question of tolling the allowable time for bringing claims allegedly due to repressed memory is appropriately addressed to the Legislature.
The Court of Appeals decision in Lemmerman is reversed, and both cases are remanded to the trial courts for proceedings consistent with this opinion^ MCR 2.116(C)(7).
i
A
LEMMERMAN v FEALK
Plaintiff Marlene Lemmerman alleges that she was sexually and physically abused by her father and aunt for approximately ten years, beginning in 1939, when she was three. Plaintiff asserts that during the period in which these assaults were occurring she attempted to tell her mother about the abuse, but that her mother denied the allegations, took no action to halt the abuse, and on at least one occasion responded by threatening her with a pair of scissors. As a coping mechanism, plaintiff maintains that she developed a second personality who took her place during the abusive episodes. It is alleged that this personality dissociation repressed plaintiff’s active memory of the abuse.
On May 19, 1989, plaintiff alleges to have confirmed her knowledge of sexual abuse through a confrontation with her father, who was a patient in a psychiatric hospital at the time of the encounter. Plaintiff alleges that, after several months of therapy, she realized that the sexual abuse was not her fault and was thus able to seek legal redress. Plaintiff’s father passed away in May, 1990.
On May 18, 1990, plaintiff filed a complaint in circuit court against her mother, her father’s estate, and her aunt, setting forth allegations of assault and battery and intentional infliction of emotional distress by all defendants, and negligence by her mother and father. Pursuant to a defense motion for summary disposition under MCR 2.116(C)(7), the trial court dismissed the plaintiff’s action. The court found the insanity disability grace period provision of MCL 600.5851; MSA 27A.5851 was not available to toll the statute of limitations because plaintiff lacked the corroboration of allegations of abuse required by Meiers-Post v Schafer, 170 Mich App 174; 427 NW2d 606 (1988).
On appeal, the Court of Appeals reversed the decision of the trial court. 201 Mich App 544; 507 NW2d 226 (1993). The Court held that the discovery rule was applicable to determine when the plaintiff’s cause of action accrued. The Court also found that when the plaintiff knew or should have known that she had a cause of action was a question of fact. Id. at 548-553. In addition, the Court found the provisions of MCL 600.5851; MSA 27A.5851 applicable, holding that there were questions of fact regarding whether the plaintiff suffered from insanity and, if she did, when that disability had been removed. 201 Mich App 553-554. The Court found that corroboration was not necessary under either theory. We granted leave to appeal and ordered that the case be argued together with Williford v Bieske. 445 Mich 934 (1994).
B
WILLIFORD v BIESKE
Plaintiff Gale Williford alleges that her father, Irwin Bieske, repeatedly sexually abused her, forced her into prostitution, and assaulted and battered her from December, 1942, when the she was five, throughout her adolescence. Plaintiff alleges that she regressed into another state of mind as a means of escaping the abuse and, as a consequence, repressed memory of the abuse until her memory of these acts was revived during psychological therapy sessions in 1992.
On April 19, 1993, plaintiff filed a complaint in circuit court against her father, alleging intentional infliction of emotional distress and assault and battery. Defendant moved for summary disposition, pursuant to MCR 2.116(C)(7), claiming that plaintiff’s action was barred by the applicable limitation period because she provided no corroboration of her allegations of sexual assault. The motion was initially denied pending discovery, and on reconsideration the trial court found that plaintiff’s action could survive summary disposition under the terms of MCL 600.5851; MSA 27A.5851, if corroborating evidence of the allegations was uncovered during discovery.
Leave to appeal to the Court of Appeals was denied for lack of merit, citing Lemmerman, supra. We granted leave to appeal, directing that the case be argued along with Lemmerman. 445 Mich 934 (1994).
n
As a general rule, untimely filed tort claims are barred by the statute of limitations. Claims for assault and battery normally must be brought within two years after they accrue, and claims for negligence and intentional infliction of emotional distress must be brought within three years after they accrue in order to avoid the limitation bar. MCL 600.5805(2), (8); MSA 27A.5805(2), (8). A 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. The time of the wrong triggering the running of the limitation period is the date a plaintiff’s injury results from a breach of duty. Larson v Johns-Manville Sales Corp, 427 Mich 301, 309; 399 NW2d 1 (1986) (citation omitted).
The statute of limitations bars plaintiffs’ claims in the instant cases, absent some exception, because the assaults are alleged to have occurred some forty to fifty years ago. Such assaults would inflict immediate damage on the children so abused. Subsequent damage arising after the initial assaults would not give rise to a new cause of action or renew the running of the limitation period. Larson, supra at 315-316.
Plaintiffs claim that the statute of limitations is tolled because either the discovery rule or the insanity disability grace period serves to extend the limitation period for claims by adults of child hood sexual abuse that has been repressed from the victims’ active memories. For reasons discussed below, we find that neither the discovery rule, which has been developed through our common-law authority, nor the statutory exception appropriately applies to extend the period for filing suit in this context.
A
The policy goals underlying statutes of limitation are well established:
[Statutes of limitation] encourage the prompt recovery of damages; they penalize plaintiffs who have not been industrious in pursuing their claims; they "afford security against stale demands when the circumstances would be unfavorable to a just examination and decision”; they relieve defendants of the prolonged fear of litigation; they prevent fraudulent claims from being asserted; and they " 'remedy . . . the general inconvenience resulting from delay in the assertion of a legal right which it is practicable to assert.’ ” [Lothian v Detroit, 414 Mich 160, 166-167; 324 NW2d 9 (1982). Citations omitted!]
"In summary, the primary purposes behind statutes of limitations are: 1) to encourage plaintiffs to pursue claims diligently, and 2) to protect defendants from having to defend against stale and fraudulent claims.” Larson, supra at 311.
Despite the importance of these goals, we have recognized that the tension between the need to protect against stale claims and the injustice of precluding some claims requires application of a discovery rule in certain circumstances. When a plaintiff would otherwise be denied a reasonable opportunity to bring suit because of the latent nature of the injury or the inability to discover the causal connection between the injury and the defendant’s breach of duty owed to the plaintiff, we have applied the discovery rule to prevent unjust results. "[Bjecause 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.” Chase v Sabin, 445 Mich 190, 196; 516 NW2d 60 (1994).
Where the discovery rule is found to be appropriate, a "plaintiff’s claim accrues when the plaintiff discovers, or through the exercise of reasonable diligence, should have discovered ... (1) an injury, and (2) the causal connection between plaintiff’s injury and the defendant’s breach [of duty to the plaintiff].” Moll v Abbott Laboratories, 444 Mich 1, 16; 506 NW2d 816 (1993).
"This Court has recognized specific situations in which the discovery rule must be utilized to prevent unjust results.” Id. at 17. We have found such situations present, e.g., where there has been a negligence action brought against a hospital and its agent before statutory characterization of such negligence as medical malpractice, Chase, supra, in pharmaceutical products liability actions, Moll, supra, and in asbestos-related products liability actions, Larson, supra. In each of those cases, we have weighed the benefit of application of the discovery rule to the plaintiff against the harm this exception would visit on the defendant and the important policies underpinning the applicable statute of limitations. Balancing is facilitated where there is objective evidence of injury and causal connection guarding against the danger of stale claims and a verifiable basis for the plaintiffs’ inability to bring their claims within the statuto rily proscribed limitation period. Thus, in Chase, supra at 197-199, we noted that the plaintiff’s negligence action based on treatment received in 1963 would now be characterized as a medical malpractice action to which we had previously applied the discovery rule. In addition, while the plaintiff’s claim was stale, the defendants generally controlled the medical records that constituted the evidence on which the plaintiff would generally rely and were "in a superior position to recognize the occurrence of a negligent act.” Id. at 200. In Moll, supra at 14-15 (quoting Bonney v Upjohn Co, 129 Mich App 18, 33-34; 342 NW2d 551 [1983]), we also noted the superior position of drug manufacturers in discovering dangers inherent in the use of their products. Also counseling in favor of application of the discovery rule was the documentary, and thus continuously reliable, nature of most relevant evidence in pharmaceutical products liability cases and the increase in knowledge in the scientific community regarding the causal relationship between certain drugs and injury or disease that occurred over time. Finally, in Larson, supra at 311-313, we applied the discovery rule to asbestos-based products liability actions because the latent nature of asbestos injuries made it difficult for plaintiffs to diligently pursue their claims, while the longer period in which defendants were vulnerable to suit did not make it appreciably more difficult for them to defend.
In those instances in which we have applied the common-law discovery rule to extend the statute of limitations, the dispute between parties has been based on evaluation of a factual, tangible consequence of action by the defendant, measured against an objective external standard. The presence of this external standard addresses the concern for reliable fact finding that is the underlying rationale for precluding untimely claims. Unlike the present claims, where liability must be determined solely by reference to one person’s version of what happened as against another’s, the fact-finder’s determination of liability is measured against an objective standard of care, such as the standard of care in the relevant profession or industry, at the time of the injury. Thus, despite the passage of time, an objective standard can be recreated for evaluation by the factfinder. In such contexts, confidence in the outcome does not hinge on whether a defendant remembered the particular operation resulting in the plaintiff’s claim of malpractice, or whether the individuals who exposed product liability plaintiffs to latent injuries are still available to explain their decisions.
A number of other jurisdictions have recently considered the propriety of the application of the discovery rule to cases in which the plaintiffs have claimed inability to pursue tort actions on the basis of alleged sexual assault as a result of repressed memory of the events. A growing collection of the legal literature has also addressed the limitation problem. From these sources, we find particularly pertinent to our conclusion the decision in Tyson v Tyson, 107 Wash 2d 72; 727 P2d 226 (1986) (superseded by statute, see Wash Rev Code Ann 4.16.340).
In Tyson, the Washington court was confronted with a request from a twenty-six-year-old plaintiff to apply the discovery rule to preserve her tort claims. These claims arose out of alleged sexual assaults by her father that occurred when she was between the ages of three and eleven. The court cautioned that "[t]he discovery rule should be adopted only when the risk of stale claims is outweighed by the unfairness of precluding justified causes of action.” Id. at 76. In examining past application of the discovery rule, the court noted that, as a threshold, such risk can only be outweighed when "objective, verifiable evidence of the original wrongful act and the resulting physical injury” is present. Id. In explaining the rationale for the need for such evidence, the court stated that
[b]ecause of the availability and trustworthiness of objective, verifiable evidence in [cases applying the discovery rule], the claims were neither speculative nor incapable of proof. Since the evidentiary problems which the statute of limitations is designed to prevent did not exist or were reduced, it was reasonable to extend the period for bringing the actions. [Id. at 77.]
The Washington court declined to extend the discovery rule to repressed memory cases because of the absence of "empirical, verifiable evidence” of the "occurrences and resulting harm” alleged by the plaintiff. Id.
B
Plaintiffs assert that in addition to delaying accrual of their causes of action through use of the discovery rule, the insanity provision of our statute providing a grace period for bringing action after certain disabilities are removed also applies to delay the limitation period applicable to their claims. Pursuant to MCL 600.5851(1); MSA 27A.5851(1), inter alia, a person who is entitled to bring a cause of action, but is insane when the claim accrues, is allowed a one-year grace period after the disability is removed to file suit, even though the limitation period for that action has run. Insanity is defined for purposes of the statute to mean "a mental derangement such as to prevent the sufferer from comprehending rights he or she is otherwise bound to know . . . .” MCL 600.5851(2); MSA 27A.5851(2).
Although the definition of "insanity” provided in the statute was adopted from an earlier opinion of this Court, Valisano v Chicago & NW R Co, 247 Mich 301, 304; 225 NW 607 (1929), we have had little opportunity to consider the reach of the disability grace period as it applies to the disability of insanity. Most other jurisdictions consider ing the question have rejected claims of repressed memory as constituting insanity for purposes of tolling the statute of limitations. Anno: Running of limitations against action for civil damages for sexual abuse of child, 9 ALR5th 321, § 11, pp 353-359. Lower courts in this state have generally treated claims of insanity in order to avoid limitation periods as questions of fact "unless it is incontrovertibly established either that the plaintiff did not suffer from insanity at the time the claim accrued or that he had recovered from any such disability more than one year before he commenced his action.” Makarow v Volkswagen, 157 Mich App 401, 407; 403 NW2d 563 (1987). See also Hill v Clark Equipment Co, 42 Mich App 405; 202 NW2d 530 (1972); Davidson v Baker-Vander Veen Construction Co, 35 Mich App 293; 192 NW2d 312 (1971).
In Makarow, the plaintiff was injured in an automobile accident in New York and filed a products liability action in Michigan against the automobile manufacturer more than five years after the accident. The manufacturer responded to plaintiff’s claim by filing a motion for accelerated judgment on the basis, inter alia, of the filing of the action outside the applicable limitation period. Id. at 405. The plaintiff answered that he had been unable to bring his claim earlier because his accident-based insanity at the time of accrual had rendered him unable to work with his retained attorneys to pursue any legal rights he might have had against the defendant. Id. at 407. The Court of Appeals held that, although the plaintiff’s assertions of insanity were sufficient to require denial of the defendant’s motion under Michigan’s statutory insanity grace period, our borrowing statute required consideration of the tolling provisions of the state of New York, where the accident occurred. Id. at 410-412. Under that state’s insanity-tolling provision, as a matter of law, the plaintiff was not insane because there was no evidence that he "suffered from an overall inability to function in society.” Id. at 414.
In Hill, the plaintiff was injured when a heavy bale of cardboard fell on him while stacking bales with a forklift manufactured by the defendant. The plaintiff commenced his personal injury action against the defendant, alleging ordinary and gross negligence, breach of implied warranty, and strict liability, almost three years after the accident. He asserted that his claims should be allowed under the statutory insanity grace period because he had suffered from a condition of traumatic insanity due to the accident at the time of accrual, causing him to be unable to comprehend or assist his retained attorney in asserting any cause of action against the defendant. Id. at 407. The Court acknowledged that the plaintiff had been able to secure social security and worker’s compensation benefits and spoke to an attorney over a year before commencing the action against the defendant. Evidence was presented, however, suggesting that arrangement for benefits had been made by others on the plaintiff’s behalf. There was nothing in the record regarding the nature of the plaintiff’s discussions with the attorney, and the defendant offered no evidence supporting its claim that the plaintiff was sane. Id. at 408, 411-412. On the basis of this evidence, the Court of Appeals found that the question of the plaintiff’s sanity was a disputed question of fact._
In Davidson, the plaintiff was also injured in a work-related accident. He commenced an action within the applicable limitation period, alleging negligence in the application of acid to the walls and floor of a school, but sought to add several defendants over four years after suffering injury. Two of the added defendants sought accelerated judgment on the basis of the failure to commence action against them within the applicable limitation period. Id. at 296-297. The plaintiff responded that he suffered from a lifelong mental infirmity that had precluded his ability to comprehend possible action against the added defendants. Id. at 298-299. The Court of Appeals again criticized the defendants for failing to present evidence supporting their allegation of sanity and refused to find that retention of an attorney was conclusive proof of the plaintiff’s ability to comprehend his rights. Id. at 300-301. The Court noted that affidavits had been filed on the plaintiff’s behalf suggesting, inter alia, that the plaintiff was "unable to attend to personal and business affairs,” that "it was necessary to explain to him matters the ordinary person would understand,” and that "he was unable to comprehend simple legal procedures.” Id. at 298. On the basis of the proofs presented, the Court concluded that the plaintiff’s insanity, as defined by the statute, was a question of fact.
We need not address the soundness of the lower courts’ application of the insanity grace period in these cases beyond noting that in each instance, no question was raised regarding the speculative nature of the plaintiff’s claim or the inability of the factfinder to render a reliable verdict. In each case there was a factually verifiable consequence of some action by the defendant, as well as an objective external standard against which to measure the defendant’s conduct. The question impli eating the insanity grace period was whether the plaintiff had the ability, before commencement of the action outside the limitation period, to aid in pursuit of the claim against the objecting defendant. Where it was eventually concluded that the plaintiff suffered from insanity, as defined by the statute, the same confidence existed in the trier of fact as existed when the discovery rule was properly applied to extend the limitation period. The critical issue in determining whether to allow a plaintiff’s claim to survive either by way of the common-law discovery rule or the statutory disability grace period thus becomes whether the overarching policy goals normally protected by the statute of limitations remain inviolate. Stated more succinctly, there must be some indicia of assurance of reliable fact finding.
c
Application of the discovery rule and insanity grace period in the cases before us would endanger precisely those policy goals advanced' by statutes of limitation. The absence of verifiable evidence creates "circumstances [that] would be unfavorable to a just examination and decision” and would increase the danger of the assertion of fraudulent or speculative claims. Lothian, supra at 167.
We approvingly quote the following summary of the Washington court in Tyson, supra at 79, articulating the basis for the decision not to apply the discovery rule to extend the limitation period for repressed memory cases:
It is proper to apply the discovery rule in cases where the objective nature of the evidence makes it substantially certain that the facts can be fairly determined even though considerable time has passed since the alleged events occurred. Such circumstances simply do not exist where a plaintiff brings an action based solely on an alleged recollection of events which were repressed from her consciousness and there is no means of independently verifying her allegations in whole or in part. If we applied the discovery rule to such actions, the statute of limitations would be effectively eliminated and its purpose ignored. A person would have an unlimited time to bring an action, while the facts became increasingly difficult to determine. The potential for spurious claims would be great and the probability of the court’s determining the truth would be unreasonably low.
We emphasize that our decision today does not in any way invite or signal affirmation of a claim supported by "objective and verifiable evidence,” whatever that phrase might encompass, that would allow pursuit of plaintiffs’ claims through application of the discovery rule or insanity grace period. If true, the defendants’ conduct was reprehensible, and the absence of such facts makes neither a plaintiff’s injury nor a defendant’s moral responsibility less genuine. We hold only that those devices, absent legislative action subsequent to this opinion, are not presently available for pursuit of repressed memory tort actions. The presence of merely corroborative evidence does not adequately protect the interests addressed by the statutes of limitation or bring these cases within the zone of comfort occupied by those cases in which we have allowed the limitation period to be extended through either the discovery rule or insanity grace period. In cases such as Chase, Moll, and Larson, supra, no question remained regarding whether there was harm to the plaintiff or whether reliable evidence existed to evaluate whether the harm was a consequence of the defen dants’ actions. The questions remaining for the trier of fact were whether the evidence was sufficient to fulfill the burden of proof that the defendant’s action resulted in the plaintiff’s harm, and whether those actions constituted a breach of an objectively identifiable duty of care at the relevant time. Both questions could be evaluated by the factfinder by reference to expert testimony and tangible evidence supporting and rebutting the factual cause of injury and whether it was or was not a result of a breach of the defendant’s duty of care to a consumer or patient at the time of the injury. Where the existence of injury, as well as the existence and reliability of any evidence of a causal link to the defendants, turns simply on one person’s word against another, assurance of a reliable resolution of the relevant issues is problematic. In short, we cannot conclude with any reasonable degree of confidence that factfinders could fairly and reliably resolve the questions before them, given the state of the art regarding repressed memory and the absence of objective verification.
Adoption of the plaintiffs’ position would leave a determination of the onset of a limitation period an open question within the subjective control of the plaintiff. Placing a plaintiff in this discretionary position to allege the onset of the disability of repressed memory and the termination of that condition within an applicable grace period would "vitiate the statute of limitations as a defense” and is a circumstance we have rejected in the past. Moll at 16 (refusing to adopt a rule that the limitation period for actions against des producers should only commence after the plaintiff "perceived herself to be injured”). We therefore hold that neither the discovery rule nor the statutory grace period for persons suffering from insanity extends the limitation period for tort actions allegedly delayed because of repression of memory of the assaults underlying the claims. While the Legislature may ultimately resolve the threshold reliability question in favor of plaintiffs claiming repressed memories, neither device is presently available to extend the limitation period for repressed memory tort actions, even upon presentation of allegedly "objective and verifiable evidence” of a plaintiff’s claim.
hi
Our decision should not be read as án expression of opinion that assault-based tort actions that plaintiffs have allegedly been unable to commence because of memory repression should never be recognized. We hold only that the devices presently available to this Court to allow actions beyond the statutory limitation period are inappropriate vehicles by which to allow these claims to survive a statute of limitations challenge. Neither the discovery rule nor the insanity disability grace period contemplates the situations presented to us by plaintiffs’ claims.
The more appropriate forum for resolution of the question whether persons alleging repression of memory of past assaults should be allowed to pursue claims against their accused attackers is the legislative arena. There is justifiably deep and widespread social concern over, and condemnation of the incidents of, sexual assaults of minor chil dren. The reprehensible nature of such acts also carries with it, however, the potential for unwarranted castigation of those unjustly accused of such acts because of the alleged reawakening of memories by a phenomenon not yet fully understood or accepted by the medical and psychological community. See Report of the Council on Scientific Affairs, American Medical Association, Memories of Childhood Abuse, CSA Report 5-A-94 (recommending, inter alia, a policy statement that the ama considers recovery of memories of childhood sexual abuse to "produce results of uncertain authenticity”). No matter how honestly believed by the alleged victim, questions continue to be raised concerning the accuracy and authenticity of repressed memories that return. Ernsdorff & Loftus, Let sleeping memories lie? Words of caution about tolling the statute of limitations in cases of memory repression, 84 J Crim L & Criminology 129, 154-162 (1993).
The Legislature has clearly demonstrated its ability to consider the question of extension of the limitation period for actions based on sexual abuse of children and act where it deems appropriate. In 1987, the Legislature amended MCL 767.24(2); MSA 28.964(2), to provide that where the alleged victim of child sexually abusive activity or criminal sexual conduct is under eighteen years of age at the time of the commission of the offense, an indictment for that offense may be found and filed either within the normal six-year period after commission of the offense or by the time the alleged victim reaches the age of twenty-one, whichever is later. 1987 PA 255. Our state Legislature has recently considered legislation addressing the proper limitation period for tort actions based on injury resulting from sexual abuse — the very question posed before us today. HB 4518. A number of other states’ legislatures have already considered the issue.
IV
In the context of these cases, we decline to apply the discovery rule or disability tolling statute to indefinitely extend the time limitation for bringing tort actions based on alleged sexual abuse of the plaintiffs when they were children. Neither the discovery rule nor the grace period extended to plaintiffs suffering from the disability of insanity comprehends extension of the limitation periods as a result of repression of memory of the alleged sexual assaults. We defer to the Legislature to consider the appropriateness of extending the limitation period for commencement of suit in such situations.
The decision of the Court of Appeals in Lemmerman is reversed. Both Lemmerman and Williford are remanded to the trial courts for proceedings consistent with this opinion.
Brickley, C.J., and Levin, Cavanagh, and Mallett, JJ., concurred with Boyle, J.
The pertinent part of the statute states:
[I]f the person first entitled to make an entry or bring an action under this act is . . . insane at the time the claim accrues, the person . . . shall have 1 year after the disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run.
According to plaintiff’s account of this encounter, she showed her father a picture of herself as a child, and told him he "had done something very bad to this little girl.” Plaintiff’s father responded "I’m sorry. I loved you so much. You were so beautiful — so intelligent.” Plaintiff asserts that her father said he was sorry approximately six times and told her that God would never forgive him.
Unpublished order of the Court of Appeals, issued November 24, 1993 (Docket No. 168619).
Once an injury has resulted from a breach of duty, all the elements necessary for an action in tort are usually present. "Generally, a well-pleaded claim for personal injury must allege that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached that duty, (3) the defendant’s breach was the proximate cause of the plaintiff’s injury, and (4) damage.” Moll v Abbott Laboratories, 444 Mich 1, 16; 506 NW2d 816 (1993).
While MCL 600.5851(1); MSA 27A.5851G), inter alia, allows a person who is under the age of eighteen at the time a claim accrues one year after reaching that age to bring an action, this grace period does not affect the timeliness of the present actions. Both plaintiffs were past the age where this provision of the statute was of consequence when they filed their complaints.
No allegations are presented in these cases for consideration of uncertain future consequences from the assaults that would warrant taking plaintiffs’ actions out of this general rule. Id. at 316-319. We emphasized in Larson, in which we adopted such a rule for certain asbestos-related injuries, "that the rule we develop in this case for subsequent damages is premised on the unique nature of the asbestos situation and is not applicable in other areas.” Id. at 319-320.
In Chase, supra at 193-194, the plaintiff lost his eye one year after cataract surgery in 1963. The plaintiff had never been informed of difficulty during the eye surgery, but in 1988 plaintiff’s counsel discovered evidence of possible negligence in the administration of anesthesia and consequential damage to the eye in hospital records of the surgery. In Moll, supra at 6-11, the plaintiffs discovered reproductive problems as adults that were possibly linked to exposure to diethylstilbestrol (des) manufactured by the defendants and prescribed to their mothers when pregnant. The plaintiffs had no knowledge of their mothers’ ingestion of the drug until they were adults. The more difficult issue in Moll was determination of the time when the plaintiffs discovered their injury and the possible causal link between that injury and their exposure to des. Larson, supra at SOS-SO?, concerned wrongful death actions related to exposure to asbestos. The diseases related to such exposure have a latency period between exposure and the development of the diseases of ten to forty years.
See anno: Running of limitations against action for civil damages for sexual abuse of child, 9 ALR5th 321.
See, e.g., Ernsdorff & Loftus, Let sleeping memories lie? Words of caution about tolling the statute of limitations in cases of memory repression, 84 J Crim L & Criminology 129 (1993); comment, Adult survivors of childhood sexual abuse and the statute of limitations: The need for consistent application of the delayed discovery rule, 20 Pepperdine LR 1359 (1993); note, Easing access to the courts for incest victims: Toward an equitable application of the delayed discovery rule, 100 Yale L J 2189 (1991).
The disability must exist at the time of accrual of the claim, and successive liabilities cannot be tacked. MCL 600.5851(3), (4); MSA 27A.585K3), (4).
The definition of "insanity” added to § 5851 by amendment, 1961 PA 236, § 5851, is in conformity with the definition in Valisano. See MSA 27A.5851, Committee Notes, pp 205-206. '
Valisano was decided on the basis of res judicata and election of remedy. Id. Therefore, this Court had no occasion to analyze the merits of the plaintiff’s claim under the definition of insanity provided.
Because the accident occurred in Alabama, the Court of Appeals found that Alabama’s one-year limitation period for plaintiff’s personal injury claims applied. Id. at 407.
See part iii.
We do not address the result of those repressed memory cases wherein long-delayed tort actions based on sexual assaults were allowed to survive summary disposition because of the defendants’ admissions of sexual contact with the plaintiffs when they were minors. Meiers-Post, supra; Nicolette v Carey, 751 F Supp 695 (WD Mich, 1990). Such express and unequivocal admissions take these cases outside the arena of stale, unveriflable claims with which we are concerned in the present cases.
Wartik, A question of abuse; adults who suddenly remember that they were victims of child abuse, Am Health: Fitness of Body & Mind, May 1993, p 62, summarizes the debate:
The so-called recovered-memory phenomenon has divided the psychotherapeutic community. Although some psychiatrists think shocking experiences really can vanish from consciousness for decades at a time, only to reemerge with crystal clarity years later, others do not. Skeptical scientists say too many accounts of long-past abuse conflict with findings on how we store and recall experience. Most recovered "memories,” they believe, are subconscious efforts to actually resolve old hurts, in many cases spurred by an increasing number of books, support groups and psychotherapists who see sexual abuse at the root of virtually all psychic pain.
It has been reported that only five states make no provision for tolling or extending the limitation period for criminal actions in childhood sexual abuse cases. Ernsdorff & Loftus, supra at 150-153, n 112.
After the Washington Supreme Court decision in Tyson, supra, the Washington Legislature enacted a law expressly providing for application of the discovery rule to causes of action based on childhood sexual abuse. Wash Rev Code Ann 4.16.340 allows, inter alia, that claims based on intentional conduct may be brought for injuries suffered as a result of childhood sexual abuse within three years of (1) the abusive act causing injury, (2) discovery of the causal link between the act and the injury, or (3) the time the victim should have discovered that the act caused the injury. The limitation period is tolled in all such cases until the plaintiff reaches eighteen and runs from the date of the last act of sexual abuse.
At least twenty-eight other states have passed or considered legislation extending the period of limitation for sexual-abuse-related civil actions. Ernsdorff & Loftus, supra at 145-147. | [
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Levin, J.
The question presented is whether the Mayor of Detroit must obtain approval from the Detroit City Council before implementing a savings plan designed to reduce a projected budget deficit. The Court of Appeals held that city council approval was necessary before implementation. We hold that, while city council approval is required before specific budget appropriations can be reduced, the mayor may act to reduce expenditures pending approval of his budget recommendations.
i
In April, 1989, Detroit Mayor Coleman Young delivered his annual budget message for fiscal year 1989-90. At that time, Mayor Young anticipated a budget surplus of about $9.6 million for fiscal year 1988-89. Mayor Young expressed concern, however, about rising medical insurance costs and uncertainty regarding contract negotiations with labor unions representing the city’s civilian and uniformed employees. In June, 1989, the city council adopted the budget for the new fiscal year beginning July 1, 1989.
In his quarterly financial report to the city council, dated December 14, 1989, Budget Director Walter Stecher indicated that, as of the quarter ended September 30, 1989, the city faced a projected budget deficit of between $49 million and $60 million for fiscal year 1989-90. On January 16, 1990, Mayor Young issued a press release, stating that he was ordering "immediate reductions in City spending to save $28 million by the end of the fiscal year June 30 . . . .”
A savings plan was implemented calling for the layoff of 722 city workers (including 500 police officers), a hiring freeze, the cancellation of nine new police training classes, a delay in purchasing new police vehicles, reductions in overtime, and restrictions on city employee travel. In response to the mayor’s announcement, the city council unanimously passed a resolution asking the mayor to submit a deficit-reduction plan, including all necessary budgetary amendments, and supporting information detailing the effect of the proposed amendments on city programs and services.
Budget Director Stecher wrote to the city council, advising that the necessary budget transfers would be forthcoming within two weeks. He indicated that the transfers would not represent all the actions that would be taken to eliminate the budget deficit, but merely would reflect the admin istration’s first steps implementing the savings plan. Stecher met with the council several days later, at which time he revealed that the city’s deficit was actually $81 million. The council once again requested a comprehensive deficit-elimination proposal from the mayor and Stecher.
During the last two weeks of January, 1990, Stecher submitted a series of budget recommendations to the council that would reduce appropriations for personnel by $5,806,800, and defer payment of $11,750,000 for automotive equipment until the following fiscal year. Also transmitted were amendments for increasing appropriations for lay-off benefits of $1,000,000, employee hospitalization of $4,806,800 and $1,700,000, worker’s compensation of $4,000,000, and the public liability reserve fund of $5,050,000, all of which were projected to run deficits.
In February, Stecher transmitted proposed amendments for transferring appropriations within the police department of $7,470,000 by reducing appropriations for fringe benefits and certain new hiring, and by increasing appropriations for the criminal investigation division, the police executive division, the personnel bureau, and the management bureau.
All these recommendations were rejected by the council on January 26, 1990, on the basis that they did not constitute a comprehensive savings plan and because they were not accompanied by sufficient supporting information.
The council passed a second resolution, once again asking for "a comprehensive proposal to amend the 1989-90 Detroit City budget to address the entire eighty-one million projected budget deficit” and requesting a response by February 1. This resolution was followed by a letter from City Coun cil President Maryann Mahaffey to Mayor Young reiterating the council’s demands.
Mayor Young responded to the city council on February 6, 1990, asking for timely action on the previously submitted budget recommendations. Three days later, the council rejected "the three budget transfer requests tendered by the administration purportedly for the purpose of budget deficit reduction plans already implemented by the Executive Branch,” and again requested that new recommendations, along with supporting information, be submitted to the council by February 26. This rejection was followed by a letter to Mayor Young from Council President Mahaffey in which she stated that the council’s rejection of the amendments was not on the merits, but that the "Council has a very fundamental difference of opinion with the Administration on the role of Council in a savings plan/budget amendment procedure.”
In response, the mayor resubmitted his budget recommendations for the savings plan. These recommendations were again rejected by the council on March 7. The council then filed this action for mandamus in the circuit court to compel Mayor Young to present a comprehensive plan supported by documentary information. The circuit court partially granted both parties’ motions for summary disposition, pursuant to MCR 2.116(C)(10), and held that the mayor must submit budget recommendations to the city council, but need not obtain its approval before implementation. In addition, the court held that the mayor need not accompany his recommendations with supporting information and documentation.
The Court of Appeals affirmed in part and reversed in part. The Court affirmed the circuit court’s determination that supporting information was not necessary, but reversed regarding the question of council approval, holding that such approval must be obtained before implementation of any deficit-reduction proposal. In so ruling, the Court relied on § 17 of the Uniform Budgeting and Accounting Act (ubaa), MCL 141.437; MSA 5.3228(37).
The Court of Appeals disagreed with the circuit court that the proposed savings plan did not include "deviations” from the original budget under § 17 because certain provisions of the plan involved mere refusals to expend appropriated funds. The Court observed that the plan as a whole consisted of proposals for increases and decreases in particular appropriations. The Court held that since these changes had not been authorized under the previously adopted budget, the provisions of the plan constituted deviations requiring city council approval.
The Court added that § 17 of the ubaa requires city council approval of the mayor’s deficit-reduction program before implementation because the statute clearly states that, if it appears that there will be a budget deficit, the mayor must make recommendations that "if adopted” would eliminate the budget shortfall. The Court also reasoned that permitting the mayor to proceed with implementation of a plan without first obtaining council approval raised the possibility that the executive actions would become retrospectively illegal if the budget recommendations subsequently failed before the council.
We granted leave to appeal.
n
A
The mayor contends that the only issue presented is whether the mayor needed city council "approval prior to implementing decisions not to spend the full amount of funds previously appropriated or not to spend in excess of appropria tions.” The mayor contends that, because an appropriation is not a "mandate” to spend, he was not obliged to obtain council approval before implementing those portions of the savings plan constituting decisions not to spend appropriated amounts. The Court of Appeals rejected this characterization because it concluded that the mayor’s savings plan consisted of more than the mere refusal to spend. We agree insofar as this particular savings plan would have resulted in transfers between budgeted items (deviations) or reductions in budgeted appropriations without council approval.
Insofar as the savings plan included "deviations” from the city budget for fiscal year 1989-90, city council approval was required under § 17 of the ubaa. The first three sentences of § 17 provide:
Except as otherwise provided in section 19, a deviation from the original general appropriations act shall not be made without amending the general appropriations act. The legislative body of the local unit shall amend the general appropriations act as soon as it becomes apparent that a deviation from the original general appropriations act is necessary and the amount of the deviation can be determined. An amendment shall indicate each intended alteration in the purpose of each appropriation item affected by the amendment.
Thus, reallocation or diversion of previously budg eted funds from one use to another could only have been accomplished with council approval.
The opening three sentences of § 17, concerning deviation or alteration in the purpose and use of an appropriation item, are immediately followed by one sentence providing that the legislative body may require the executive to provide it with periodic reports on the financial condition of the city or other local unit.
The next three sentences concern the procedures to be followed when there must be a reduction in appropriations to meet a revenue shortfall:
If, during a fiscal year, it appears to the chief administrative officer, or the fiscal officer in local units which have not elected or designated a chief administrative officer, or to the legislative body that the actual and probable revenues from taxes and other sources in a fund are less than the estimated revenues, including an available surplus upon which appropriations from the fund were based and the proceeds from bonds or other obligations issued under the fiscal stabilization act or the balance of the principal of these bonds or other obligations, the chief administrative officer or fiscal officer shall present to the legislative body recommendations which, if adopted, would prevent expenditures from exceeding available revenues for that current fiscal year. The recommendations shall include proposals for reducing appropriations from the fund for budgetary centers in a manner that would cause the total of appropriations, to not be greater than the total of revised estimated revenues of the fund, or proposals for measures necessary to provide revenues sufficient to meet expenditures of the fund, or both.
Thus, by its terms, these sentences of § 17 require, first, that the mayor develop and submit recommendations for reducing expenditures when a revenue shortfall has been identified, and, second, that the city council approve or reject the recommended reductions in appropriations.
B
We agree with the mayor that an appropriation is not a mandate to spend. As executive, the mayor has the responsibility and the discretion to implement programs while taking advantage of "efficiencies and economies” that will save money in their operation. Nothing in § 17 precludes the mayor from achieving the goals of the adopted budget at less than the appropriated amount.
Nor does § 17 preclude the mayor from taking steps in advance of action by the city council to prevent escalation of an impending fiscal crisis. Section 17 speaks only of deviations or alteration in the purpose or use of appropriations and the process that must be employed in redefining the city’s official budget priorities when there is a shortfall in revenue. The mayor is under no obligation under § 17 to continue to spend money in a manner that may ultimately be dangerous to the city’s financial health by spending up to appropriated amounts. Although other city ordinances, charter provisions, state laws, or collective bargaining agreements might require the city to expend some minimum amount of money, an appropriation alone does not. Thus, the mayor may stop spending subject to council approval of his recommendations without violating the ubaa.
In Detroit City Council v Stecher, 430 Mich 74; 421 NW2d 544 (1988), the Court reviewed an attempt by the Detroit City Council to amend unilaterally the mayor’s budget recommendations by transferring appropriations before submitting them to the mayor for final approval. This Court reviewed the budget appropriation process, including § 17 of the ubaa and various sections of the Detroit City Charter, and concluded that such unilateral action was not authorized. The Court held that, under those provisions, the council may only accept or reject the mayor’s budget recommendations. In so holding, the Court discussed the balance that was struck between the executive and legislative powers by § 17 of the ubaa:
The council’s power to reject the recommendations of the mayor is consistent with the phrase "if adopted” in the above-quoted section [§ 17 of the ubaa]. This power does not, however, require the ability to unilaterally amend the recommendations. It must be noted that the Legislature has placed the most important requirements for the content of the budget amendment in the portion that describes the responsibilities of the mayor in formulating recommendations. Only the mayor is responsible for ensuring that the proposals submitted "would prevent expenditures from exceeding available revenues for that current fiscal year.” Similarly, the mayor is solely responsible for recommending proposals for "reducing appropriations from the fund for budgetary centers in a manner that would cause the total of appropriations to not be greater than the total of revised estimated revenues of the fund, or proposals for measures necessary to provide revenues sufficient to meet expenditures of the fund, or both.”[ ]
Reasoning from Stecher, the Court of Appeals said that the implication of the limitation on the city council’s power to amend was that council approval was necessary in order to go forward with implementing deficit-reduction proposals. We read § 17 somewhat more narrowly than the Court of Appeals. Section 17 unambiguously requires legislative approval for any budget deviation or alteration of appropriations, and for any budget recommendation from the mayor designed to reduce appropriations to balance the city’s budget. In advance of legislative adoption, during times of fiscal crisis, the mayor nevertheless has the power and duty to take measures to avoid exacerbating a projected budget shortfall. If the city council fails to approve the mayor’s recommendations, the original budget appropriations stand until the mayor and the city council can come to agreement.
Underlying § 17 is the notion that the legislative body is a necessary player in any effort to reorganize a municipality’s budget priorities. Even in times of financial crisis, the determination of budget priorities is a collaborative process between municipal administrative and legislative officers under the ubaa. However, while § 17 prevents the executive branch from unilaterally modifying the city’s budget and appropriations, it does not preclude executive action designed to prevent the city from continuing to operate at a deficit pending city council approval.
The decision of the Court of Appeals is affirmed in part and modified consistent with this opinion.
Brickley, . C.J., and Cavanagh, Boyle, and Mallett, JJ., concurred with Levin, J.
The mayor observed concerning his savings plan:
Many of the elements of the savings plan are designed to curb spending that is projected to be in excess of budgetary limits. This means that some measures do not generate any appropriation, surplus, but they reduce a projected deficit. Because they do not generate a surplus, they do not require Council action.
The mayor said that "[t]he amendments submitted to you represent all the areas requiring your action in the entire series of steps taken thus far to diminish the projected budget problem by the $28 million estimated savings.” Finally, Mayor Young noted that, although the $81 million figure was no more than a "projection,” a sizeable deficit was probable, thereby requiring additional plans for savings in excess of $28 million later in the fiscal year, to be supplemented by a withdrawal from the budget stabilization fund. See MCL 141.441 et seq.; MSA 5.3230(1) et seq.
Council President Mahaffey referred to this Court’s decision in Detroit City Council v Stecher, 430 Mich 74; 421 NW2d 544 (1988), and stated that the council interpreted the case to mean that
once a budget deficit is projected it is the Mayor’s responsibility to make recommendations on a “savings plan” to Council. Once the Mayor and Council agree on what the savings plan will be, the budget amendments will be generated to reflect fiscally the savings plan that is being operationally implemented.
The council resolution rejecting the recommendations stated:
City Council believes that it is clear in the State of Michigan Uniform Budgeting and Accounting Act, the City Charter and the City Council vs Stecher court case that it is council’s responsibility to act on recommendations from the mayor that would reduce a projected budget deficit, not just on the resultant budget transfers.
On April 4, 1990, the circuit court issued a writ of mandamus ordering the mayor and Stecher to submit recommendations within seven days to the council that would prevent expenditures from exceeding revenues for the fiscal year. The next day, the mayor resubmitted budget recommendations identical to the ones offered on March 7. The council rejected these submissions on April 11.
Following delivery of the mayor’s budget message for fiscal year 1990-91 and budget hearings, on May 4, the mayor again submitted the budget transfers. These were finally approved by the council on May 25, 1990.
202 Mich App 353; 509 NW2d 797 (1993).
Section 17 provides:
Except as otherwise provided in section 19, a deviation from the original general appropriations act shall not be made without amending the general appropriations act. The legislative body of the local unit shall amend the general appropriations act as soon as it becomes apparent that a deviation from the original general appropriations act is necessary ■ and the amount of the deviation can be determined. An amendment shall indicate each intended alteration in the purpose of each appropriation item affected by the amendment. The legislative body may require that the chief administrative officer or fiscal officer provide it with periodic reports on the financial condition of the local unit. If, during a fiscal year, it appears to the chief administrative officer, or the fiscal officer in local units which have not elected or designated a chief administrative officer, or to the legislative body that the actual and probable revenues from taxes and other sources in a fund are less than the estimated revenues, including an available surplus upon which appropriations from the fund were based and the proceeds from bonds or other obligations issued under the fiscal stabilization act or the balance of the principal of these bonds or other obligations, the chief administrative officer or fiscal officer shall present to the legislative body recommendations which, if adopted,- would prevent expenditures from exceeding available revenues for that current fiscal year. The recommendations shall include proposals for reducing appropriations from the fund for budgetary centers in a manner that would cause the total of appropriations to not be greater than the total of revised estimated revenues of the fund, or proposals for measures necessary to provide revenues sufficient to meet expenditures of the fund, or both. The recommendations shall recognize the requirements of state law and the provisions of collective bargaining agreements. ■
202 Mich App 358.
Id. at 358-359.
448 Mich 851 (1995). The Court of Appeals noted that the issues are moot, but nevertheless addressed the issues because they are of public significance and may recur. Citing In re Ford, 187 Mich App 452, 454; 468 NW2d 260 (1991). 202 Mich App 355.
This Court has decided to address the issues because they are capable of repetition while evading review. Socialist Workers Party v Secretary of State, 412 Mich 571, 582, n 11; 317 NW2d 1 (1982).
The parties have not raised or briefed the question of the city council’s standing to sue under the ubaa. In Stecher, n 2 supra at 80-81, this Court concluded that it would not address the question whether the Attorney General is given exclusive enforcement power under the statute. See MCL 141.440; MSA 5.3228(40). See also Rayford v Detroit, 132 Mich App 248; 347 NW2d 210 (1984). In the absence of a claim and briefs regarding the city council’s standing, we do not address this issue.
Thus, council approval was required for the proposed reduction of appropriations for personnel by $5,806,800 and for deferring payment of $11,750,000 for automotive equipment until the following fiscal year. Similarly, council approval was required for increasing appropriations for lay-off benefits of $1,000,000, employee hospitalization of $4,806,800 and $1,700,000, worker’s compensation of $4,000,000, and the public liability reserve fund of $5,050,000.
One of the purposes of § 17 is to promote uniform budgets and avoid deficit spending. See Rayford, n 10 supra. Although the statute refers to the procedures to be followed when there is a revenue shortfall, it is unclear whether the city’s deficit was caused by such a shortfall or an excess in expenditures. The parties have proceeded on the basis that § 17 governs the resolution of this case. They have not raised or briefed the question whether § 17 is applicable in the circumstances of the instant case.
[A]n appropriation of a larger amount than is necessary for a particular purpose does not obligate the city to pay or expend the full amount. [64 CJS, Municipal Corporations, § 1888, p 454.]
See OAG, 1989-1990, No 6,607, pp 271-272 (December 5, 1989) discussing the term "efficiencies and economies.” Const 1963, art 5, § 20, states that "[n]o appropriation shall be a mandate to spend.” The Attorney General has interpreted this provision to prevent state departments from reducing the gross amounts appropriated for specific programs.
In Opinion of the Justices to the Senate, 375 Mass 827; 376 NE2d 1217 (1978), the Supreme Judicial Court of Massachusetts discussed the discretion left open to executives to implement programs in the context of the power of that state’s governor. The Massachusetts court stated,
Inasmuch as it is the function of the executive branch to expend funds, it must be implied that the "supreme executive magistrate,” as head of one of the three coequal branches of government, is not obliged to spend the money foolishly or needlessly. The executive branch is the organ of government charged with the responsibility of, and is normally the only branch capable of, having detailed and contemporaneous knowledge regarding spending decisions. The constitutional separation of powers and responsibilities, therefore, contemplates that the Governor be allowed some discretion to exercise his judgment not to spend money in a wasteful fashion, provided that he has determined reasonably that such a decision will not compromise the achievement of underlying legislative purposes and goals. [Id. at 836.]
While not expressly binding on local government, the principles and policies embodied in Const 1963, art 5, § 20, and the above-cited case, apply to local government.
The charter provides:
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. [§ 8-211.]
The Court observed in Stecher, supra at 88-89, that § 8-211 "is primarily a procedural provision that specifies the process by which the city budget may be amended during the course of a fiscal year.” This Court found no conflict between the provisions of the ubaa and the Detroit Charter. Id. at 89.
This Court said:
When, during a fiscal year, it becomes apparent that the budget of the City of Detroit will not balance, the mayor has the responsibility and the power to make recommendations to the city council for appropriations transfers in order to achieve a balanced budget to comply with the provisions of the ubaa. MCL 141.437; MSA 5.3228(37). The council may only accept or reject the proposals as submitted by the mayor. Id., Detroit Charter, § 8-211. Accordingly, we hold that the council may not unilaterally amend these proposals before submitting them to the mayor for final approval and implementation. [Id. at 77.]
We do not read the last two words in the last sentence — "and implementation” — quoted above as a decision by this Court that the mayor may not partially close the checkbook during a fiscal crisis before council approval of his recommendations for reducing appropriations. Quite obviously, the mayor cannot implement a recommendation for reducing appropriations that had been previously enacted by the city council until the recommendation for reduction is approved by the city council. It does not follow that he may not reduce expenditures to avoid exacerbating the fiscal crisis while he is considering what to recommend and the council is considering his recommendations.
Id. at 88.
Id. at 87.
202 Mich App 359.
The District of Columbia Court of Appeals similarly concluded in Barry v Bush, 581 A2d 308 (DC App, 1990). Section 31-104 of the DC Code provided that both the mayor and the council may establish the maximum amount of funds that could be allocated to the district’s board of education. The court held that any attempt to deviate from the previously established maximum in the budget required the participation of both the mayor and the council. Thus, the mayor could not unilaterally reduce the board’s budget in times of fiscal crisis, because such an act would be establishing a new maximum for the board without council participation.
See also In re Broderick v New York City, 295 NY 363, 370-372; 67 NE2d 737 (1946) (under a city charter provision, agency directors may not transfer an appropriation from one line to another without Board of Estimate approval).
In the instant case, the city council eventually approved Mayor Young’s recommendations after conducting hearings on the budget for the following fiscal year. See n 4. Therefore, we need not opine what might or should happen if the city council and the mayor remain permanently at loggerheads over the proposed budget recommendations. | [
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Brickley, C.J.
This case involves liability of a nonmanufacturing seller for personal injuries that plaintiff Eric Seasword sustained while using a drill that is alleged to have been negligently designed. Plaintiff seeks recovery from defendant Hilti, Inc., on the basis of Hilti, Inc.’s, status as: (1) the nonmanufacturing seller or distributor of the drill (seller theory), (2) the apparent manufacturer of the drill, or (3) the subsidiary corporation of the manufacturer of the drill.
In this appeal, we are asked to decide whether the Court of Appeals erred by affirming the summary disposition of plaintiff’s apparent-manufacturer theory and parent-subsidiary theory of liability. For the reasons explained herein, we decline to adopt the apparent-manufacturer doctrine, and we affirm the decision of the Court of Appeals regarding- the summary disposition of plaintiff’s parent-subsidiary theory of liability.
i
PACTS
Plaintiff, Eric Seasword, was injured by a power drill while working for his employer on January 4, 1984. A plate attached to the drill bore the name and address of defendant, Hilti Incorporated. Imprinted in the drill itself were the words "hilti” and "Made in Liechtenstein.” The drill was designed and manufactured by Hilti A.G., a Liechtenstein corporation who was not made a defendant in this case.
In his amended complaint, plaintiff alleged that the drill was' defective in its design and that Hilti, Inc., was subject to liability because it sold, distributed, and held itself out as the manufacturer of the drill.
Defendant denied plaintiff’s allegations and moved for summary disposition pursuant to MCR 2.116(C)(8) and MCR 2.116(C)(10). To support the denial that it sold the injurious drill, defendant submitted a sworn affidavit from its in-house counsel, stating that the drill had been "designed and manufactured by Hilti A.G. and sold f.o.b. at its place of origin.” The affidavit further stated that Hilti A.G. was a foreign corporation, based in Liechtenstein and "distinct and separate” from Hilti, Inc.
In response to the motion for summary disposition, plaintiff asserted, for the first time and as an additional theory, that defendant could be liable as a subsidiary of Hilti, A.G., the manufacturer._
On August 11, 1988, the trial court granted summary disposition for defendant on all counts, including plaintiff’s parent-subsidiary claim. Plaintiff appealed.
The Court of Appeals, in an unpublished decision, . reversed the summary disposition of plaintiff’s seller theories of liability because it concluded that defendant failed to present sufficient evidence to support a finding that defendant did not sell the drill. It affirmed the summary disposition of plaintiff’s parent-subsidiary theory because plaintiff presented no evidence creating an issue of fact on that claim. On remand from this Court, the Court of Appeals also rejected plaintiff’s apparent-manufacturer theory, finding it inconsistent with Michigan’s products liability law and explaining that it would impose strict liability on a nonmanufacturing seller.
Having retained jurisdiction on remand, we now address the issues that plaintiff has submitted for review of which the most jurisprudentially significant is whether we should supplement Michigan’s products liability jurisprudence with an apparent-manufacturer doctrine.
A. HOLDING OUT
The apparent-manufacturer theory, also referred to as the "holding out theory,” is based on 2 Restatement Torts, 2d, § 400, p 337, which provides:
One who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.
This theory simply permits a factfinder to "transfer” the manufacturer’s liability to that separate entity holding itself out as the manufacturer. When the doctrine applies, the nonmanufacturer is, in reality, substituted for the manufacturer.
The Model Uniform Product Liability Act (upla) and many states have adopted some form of the apparent-manufacturer theory. In the context of the upla and contemporary product liability laws of many other states, the apparent-manufacturer doctrine serves the purpose of assuring that some entity in the product enterprise remains answerable for injuries caused by defective products.
We believe, however, that Michigan’s existing theories of seller liability and related tort doctrines, including piercing the corporate veil and successor liability, as well as laws of agency, fraud, and misrepresentation, preclude the need for an apparent-manufacturer doctrine and diminish the doctrine’s utility. Because nonmanufacturing sellers in Michigan continue to be answerable for design defects under existing tort theories, we find it unnecessary to adopt an additional theory under which nonmanufacturing sellers could be accountable for injuries caused by an allegedly defective product.
Accordingly, while the apparent-manufacturer doctrine' serves important interests, not the least of which are accountability, protecting consumer expectations, and deterring abuse of corporate structures to evade tort liability, we believe that those objectives are adequately accomplished by existing laws and therefore do not necessitate an apparent-manufacturer doctrine. Thus, we decline to supplement our current products liability jurisprudence with the apparent-manufacturer doctrine.
B. PARENT-SUBSIDIARY THEORY
Plaintiff’s related theory of liability is premised on the alleged parent-subsidiary relationship between defendant and the manufacturer of this drill. We believe that the summary disposition of that claim was proper.
It is a well-recognized principle that separate corporate entities will be respected. Wells v Firestone, 421 Mich 641, 650; 364 NW2d 670 (1984). Michigan law presumes that, absent some abuse of corporate form, parent and subsidiary corporations are separate and distinct entities. See, e.g., Herman v Mobile Homes Corp, 317 Mich 233, 243; 26 NW2d 757 (1947); Gledhill v Fisher & Co, 272 Mich 353, 357-358; 262 NW 371 (1935). This presumption, often referred to as a "corporate veil,” may be pierced only where an otherwise separate corporate existence has been used to "subvert justice or cause a result that [is] contrary to some other clearly overriding public policy.” Wells, supra at 650; Helzer v F Joseph Lamb Co, 171 Mich App 6, 9; 429 NW2d 835 (1988). More specifically, Michigan courts have generally required' that a subsidiary must "become 'a mere instrumentality’ of the parent” before its separate corporate existence will be disregarded. Maki v Copper Range Co, 121 Mich App 518, 524; 328 NW2d 430 (1982). See also Shirley v Drackett Products Co, 26 Mich App 644; 182 NW2d 726 (1970).
This law makes it clear that in order to state a claim for tort liability based on an alleged parent-subsidiary relationship, a plaintiff would have to allege: (1) the existence of a parent-subsidiary relationship, and (2) facts that justify piercing the corporate veil. Plaintiff’s parent-subsidiary theory is fatally deficient with respect to the second element.
While plaintiff’s pleadings lack any indicia of a parent-subsidiary theory of liability, plaintiff did disclose that theory in response to the defendant’s motion for summary disposition and the trial court considered it. Specifically, in opposition to summary disposition, plaintiff alleged that Hilti, Inc., was a subsidiary of Hilti A.G., the admitted manufacturer. Accepting that allegation as true, plaintiff has not stated a claim based on a parent- subsidiary relationship because plaintiff has alleged no facts, nor offered any proof that defendant and Hilti A.G. have abused their presumably separate and distinct corporate forms. Absent such allegations or facts, plaintiff has failed to state a valid claim of parent-subsidiary liability.
Plaintiff characterizes the disposition of its parent-subsidiary theory as a "stealth” motion for summary disposition. When a covert theory of liability is uncovered by a stealth motion for summary disposition and that theory is legally insufficient, the interest of fairness sought to be advanced by pretrial procedure is not offended. Summary disposition pursuant to MCR 2.116(C)(8) was properly granted on plaintiff’s parent-subsidiary theory.
We vacate the decision of the Court of Appeals, but affirm its earlier decision to the extent that it held that the summary disposition of plaintiff’s parent-subsidiary theory of liability was proper. Remanded for further proceedings consistent with this opinion.
Cavanagh, Boyle, Riley, and Mallett, JJ., concurred with Brickley, C.J.
Levin, J.
(separate opinion). This Court should adopt the apparent-manufacturer doctrine.
Weaver, J., took no part in the decision of this case._
Whether the Court of Appeals erred in reversing the summary disposition of plaintiff’s theories of seller liability, is not an issue currently before this Court. Our earlier order granting defendant’s cross appeal of that issue has been vacated because, in light of the procedural posture and our review of the record, we were no longer persuaded that the issues raised by the defendant should now be reviewed by this Court.
Plaintiff amended his complaint in response to defendant’s initial motion for summary disposition when it was established that Hilti A.G., not Hilti, Inc., was the designer and manufacturer of the drill.
Per curiam, issued June 11, 1992 (Docket Nos. 119456, 120839).
Id.
444 Mich 947 (1994) (directing the Court of Appeals to decide whether, and to what extent the apparent-manufacturer theory should or should not be adopted in this case).
207 Mich App 609, 613-614; 525 NW2d 501 (1994).
44 CFR 62714.
Sears, Roebuck & Co v Morris, 273 Ala 218, 221-222; 136 So 2d 883 (1961); Dildine v Clark Equipment Co, 282 Ark 130, 137; 666 SW2d 692 (1984); Cravens, Dargan & Co v Pacific Indemnity Co Inc, 29 Cal App 3d 594, 599; 105 Cal Rptr 607 (1972); Burkert v Petro Plus of Naugatuck, Inc, 216 Conn 65; 579 A2d 26 (1990); Fahey v Rockwell Graphic Systems, Inc, 20 Mass App 642, 650; 482 NE2d 519 (1985); Hebel v Sherman Equipment, 92 Ill 2d 368; 65 Ill Dec 888; 442 NE2d 199 (1982) (finding no liability under the theory); Dudley Sports Co v Schmitt, 151 Ind App 217, 222-223; 279 NE2d 266 (1972); Tice v Wilmington Chemical Corp, 259 Iowa 27, 41; 141 NW2d 616 (1966); Davis v United States Gauge, 844 F Supp 1443, 1448 (Kan, 1994); Penn v Inferno Mfg Corp, 199 So 2d 210 (La App, 1967); Armour & Co v Leasure, 177 Md 393, 411-412; 9 A2d 572 (1939); Coca Cola Bottling Co v Reeves, 486 So 2d 374, 378 (Miss, 1986); Swindler v Butler, 426 SW2d 78, 83 (Mo, 1968) (assumed doctrine applied); Comm’r State Ins Fund v City Chemical Corp, 290 NY 64, 69-70; 48 NE2d 262 (1943); Rulane Gas Co v Montgomery Ward & Co, Inc, 231 NC 270, 273-275; 56 SE2d 689 (1949); Forry v Gulf Oil Corp, 428 Pa 334, 344-345; 237 A2d 593 (1968); Sears, Roebuck & Co v Black, 708 SW2d 925 (Tex App, 1986); Zamora v Mobil Corp, 104 Wash 2d 199, 202-205; 704 P2d 584 (1985).
In addition to the various substantive laws, Michigan’s long-arm statute and accompanying personal jurisdiction jurisprudence offer a procedural means of protecting the interest of accountability. See Jeffrey v Rapid American Corp, 448 Mich 178; 529 NW2d 644 (1995) (comprehensive overview of personal jurisdiction jurisprudence).
At least in the context of tort liability, relevant factors in showing that a subsidiary is a "mere instrumentality” of its parent might be that the parent and subsidiary shared principal offices, or had interlocking boards of directors or frequent interchanges of employees, that the subsidiary is the parent’s exclusive distributing arm, or the parent’s revenues are entirely derived from sales by the subsidiary. See, e.g., Shirley v Drackett Products Co, supra; see also Bathory v Procter & Gamble Distributing Co, 306 F2d 22 (CA 6, 1962).
One who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer. [2 Restatement Torts, 2d, § 400, p 337.]
See cases so holding cited in the majority opinion, p 546, n 8.
See also Prosser & Keeton, Torts (5th ed), § 101, pp 706-707; 63 Am Jur 2d, Products Liability, § 165, pp 142-144; 1A Frumer & Friedman, Products Liability, § 601[2][b]; 1 Madden, Products Liability (2d ed), § 4.4, pp 121-124; 5 Harper, James & Gray, Torts (2d ed), § 28.28, pp 548-553. | [
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D. E. Holbrook, P. J.
Wallace Stremler lost control of the truck he was driving while proceeding in the northbound lane of US Highway 131 in Grand Rapids and was thrown from the truck, which injury caused his death. Plaintiff, as administratrix of the estate, brought suit against the defendant, Michigan Department of State Highways. A complaint was filed in the Court of Claims on November 13, 1973, which in pertinent part stated:
" * * * That on November 20, 1970 at approximately 4 a.m. in the northbound lane of U.S. 131, commonly known as the "S” curve in the City of Grand Rapids approximately 500 to 600 feet south of the Market Street exit when plaintiffs deceased was proceeding north that said driver lost control of said vehicle without fault on his part due to conditions then and there existing in conjunction with the improper design and possible improper speed posted at said time that said deceased was killed thereby when thrown from said truck.
" * * * That said design, construction and maintenance is a nuisance. That said Highway Department had control over the design, construction and maintenance of said highway. That authorizing, maintaining, construction and design of said "S” curve as an expressway or freeway was improper. Further, the Michigan Department of State Highways has had notice of the inordinate number of accidents caused by the "S” curve and has attempted to alleviate some of the conditions but has failed to change or alleviate the basic problem of the "S” curve itself, thus has maintained a nuisance. That the Michigan Department of State Highways is therefore liable because of the design, construction and maintenance of said nuisance.”
Defendant moved for accelerated judgment, in accordance with GCR 1963, 116.1(5), based upon MCLA 691.1411(2); MSA 3.996(111X2). Defendant also moved for summary judgment, in accordance with GCR 1963, 117.2(1), asserting that plaintiff had not stated a claim upon which relief could be granted, as the highway department was immune from tort liability as one of the principal departments of the State of Michigan. By opinion, the Court of Claims granted defendant’s motion for summary judgment. An order for accelerated judgment was entered and the complaint was dismissed. Plaintiff has here appealed and set out four issues, two of which are admittedly proffered in order to preserve such issues for further appeal and will not be discussed here.
I
Plaintiff claims that the action herein is founded on nuisance and, as such, is outside the scope of MCLA 691.1402; MSA 3.996(102). This assertion is premised upon MCLA 691.1407; MSA 3.996(107), which provides:
"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein said government agency is engaged in the exercise and 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 hereby affirmed. ” (1964 PA 170, § 7, Eff. July 1, 1965.) (Emphasis supplied.)
Williams v Primary School District #3, Green Twp, 3 Mich App 468, 475-476; 142 NW2d 894, 897 (1966), was a wrongful death action brought by the parents of a 6-year-old girl who died while using playground equipment situated on the defendant’s premises. This writer wrote:
"Plaintiffs cite the case of Royston v City of Charlotte, 278 Mich 255; 270 NW 288 (1936), wherein Mr. Justice Wiest stated on p 260; NW 290:
" 'Acts in the discharge of governmental functions which create a nuisance per se do not come within the immunity otherwise accorded. Want of care in maintenance, however, presents the question of negligence only, and not that of a public nuisance, which must rest on inherent danger even under the best of care.’
"To better understand whether the piece of play ground equipment in our case comes within the designation of a nuisance we turn to Prosser on Torts (3d ed), Nuisance, §87, pp 592-594 for enlightenment and find:
" 'There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word "nuisance”. It has meant all things to all men, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie. There is general agreement that it is incapable of any exact or comprehensive definition. Few terms have afforded so excellent an illustration of the familiar tendency of the courts to seize upon a catchword as a substitute for any analysis of a problem; the defendant’s interference with the plaintiff’s interests is characterized as a "nuisance”, and there is nothing more to be said. With this reluctance of the opinions to assign any particular meaning to the word, or to get to the bottom of it, there has been a rather astonishing lack of any full consideration of "nuisance” on the part of legal writers. * * * A private nuisance is a civil wrong, based on a disturbance of rights in land. The remedy for it lies in the hands of the individual whose rights have been disturbed. A public or common nuisance, on the other hand, is a species of catch-all criminal offense, consisting of an interference with the rights of the community at large, which may include anything from the obstruction of a highway to a public gaming-house or indecent exposure. As in the case of other crimes, the normal remedy is in the hands of the State. The two have almost nothing in common, except that each causes inconvenience to someone, and it would have been fortunate if they had been called from the beginning by different names. Add to this the fact that a public nuisance may also be a private one, when it interferes with the enjoyment of land, and that even apart from this there are circumstances in which a private individual may have a tort action for the public offense itself, and it is not difficult to explain the existing confusion.’ (Emphasis supplied.)
"Applying the definition of nuisance to the facts of our case we are constrained to conclude that the playground equipment in question does not constitute a private nuisance for it was not a civil wrong based on a disturbance of rights in land, or a public nuisance, for it did not interfere with the rights of the community at large, nor was the maintenance of such equipment a criminal offense. At most under plaintiffs’ allegations, this piece of equipment would be dangerous if used by children of tender age without proper supervision. Plaintiffs did not plead facts to show that the 'Giant Stride’ equipment was a nuisance per se. If it became dangerous, it did so by reason of the manner in which or by whom it was used.”
Under Williams, supra, we find in the instant case there is no disturbance of rights in land, and no assertion that it is nuisance per se, i.e., as a matter of law. Plaintiff would have had to plead a great deal more in order to substantiate a claim of public nuisance in the context of this case.
"It is * * * the settled law of this state that the construction and maintenance of public highways is the exercise of a governmental function for the public discharge of which no liability exists except as created by statute.” 12 Callaghan’s Michigan Civil Jurisprudence, Highways & Streets, § 400, p 414.
In Blackwelder v Concord, 205 NC 792, 795, 796; 172 SE 392, 393; 90 ALR 1495, 1497, 1498 (1934), the Court said:
"There are many cases in the books permitting the recovery of damages for negligent construction of streets and for lack of ordinary care in the maintenance thereof, but such cases do not control the decision of the case at bar. The injury in this case results from the plan adopted or the exercise of the judgment of the governing authorities, and not from negligence in the execution of the plan in the construction and maintenance of the streets. Therefore the motion for nonsuit should have been allowed. Rollins v Winston-Salem, 176 NC 411; 97 SE 211 [1918].”
Conditions in streets and public places which render the use thereof dangerous or inconvenient present issues referable to the law of negligence. 18 McQuillin, Municipal Corporations (3d ed rev), § 53.47, p 248. When the defect in a public right of way is a natural consequence of negligence in original construction, there need not be notice, actual or constructive, of the duty to repair where the governmental entity was charged with notice from the beginning. 19 McQuillin, supra, § 54.105a, pp 293, 294. Defective design may lead to a continuing obligation to correct such defect and, should a governmental entity fail to do so, when on notice that such is necessary, liability may be based upon its negligence in failing to correct the defect. Hargis v City of Dearborn Heights, 34 Mich App 594, 601; 192 NW2d 44, 48 (1971), and Ebel v Saginaw County Board of Road Commissioners, 386 Mich 598, 607; 194 NW2d 365, 369 (1972), where the Court wrote:
"Since a nuisance may be 'public’ or 'private’, 'civil’ or 'criminal’, compliance with the orders of a regulatory commission such as the Public Service Commission, are usually held to preclude a charge of 'public’ or 'criminal’ nuisance. It cannot be said however that under all circumstances compliance with an order of the commission absolves a railroad from liability for maintaining a nuisance in fact. See 58 Am Jur 2d, Nuisances, §§ 229, 230, pp 833-835.
''No state agency is free to maintain a nuisance, and hence it cannot permit or require another person to do so.” (Emphasis supplied.)
Nuisance may be a result of negligence under MCLA 691.1402; MSA 3.996(102). Cf. Weckler v Berrien County Road Commission, 55 Mich App 7; 222 NW2d 9 (1974), Detroit Bank & Trust Co v Dept of State Highways, 55 Mich App 131; 222 NW2d 59 (1974), lv den, 392 Mich 820 (1974). When properly alleged, noticed, filed under the statute and within the statute of limitations, the question of whether decedent’s injury and damage was proximately caused by one or more of the acts of negligence (which may be the basis of nuisance) is one of fact.
In Kilts v Board of Supervisors of Kent County, 162 Mich 646, 651; 127 NW 821, 822 (1910), Justice Hooker wrote:
"We are of the opinion that a nuisance involves, not only a defect, but threatening or impending danger to the public, or, if a private nuisance, to the property rights or health of persons sustaining peculiar relations to the same, and that the doctrine should be confined to such cases. While adjudicated cases have been so variable that courts generally regard a technical and comprehensive definition difficult if not impracticable, the trend of opinion seems to be that the circumstances must be examined with a view to ascertaining whether the alleged condition is one so serious as to interfere with the comfort of life and enjoyment of property, or so threatening as to constitute an impending danger to persons in the enjoyment of their legitimate rights.” (Emphasis in original.)
Cf. Fraley v City of Flint, 54 Mich App 570, 574; 221 NW2d 394, 397 (1974), Hargis, supra, and Mullins v Wayne County, 16 Mich App 365; 168 NW2d 246 (1969).
Much of plaintiffs argument is based upon Buckeye Union Fire Ins Co v State of Michigan, 383 Mich 630, 644; 178 NW2d 476, 483 (1970). Liability in that case was founded upon nuisance and a taking of private property without just compensation. The Court said that the State had permitted a nuisance to continue so as to interfere with and damage the property of plaintiff. The Court said: "There is no sovereign immunity applicable to a situation of nuisance as we have in this case”. (Emphasis supplied.) Of Buckeye, this Court said in Kelley v East Lansing, 50 Mich App 511, 513; 213 NW2d 557, 558 (1973): "The Buckeye case recognizes an exception from the sovereign immunity statute for a nuisance which contravenes the constitutional prohibition against the taking of property without just compensation”. Cf. Cooperrider, 1971 Annual Survey of Michigan Law — Torts, 18 Wayne L Rev 503, 521 (1972). We think that a fair reading of Buckeye, and proper interpretation thereof, discloses that the case may be limited to situations where a public nuisance has resulted in the taking of private property without just compensation.
As plaintiff has not alleged facts sufficient to fall within any of the foregoing situations where nuisance might be said to be the foundation of a cause of action outside of the statute, her cause of action in order to go forward must be under the statute. See Campbell v Detroit, 51 Mich App 34, 37; 214 NW2d 337, 338 (1973).
II
It is firmly established that a state agency is entitled to immunity from tort liability when a tort occurred while the agency was engaged in a governmental as opposed to a proprietary function. See Bofysil v Dept of State Highways, 44 Mich App 118, 124; 205 NW2d 222, 226 (1972), citing Daszkiewicz v Detroit Board of Education, 301 Mich 212; 3 NW2d 71 (1942). Torts caused by negligence give rise to immunity which is absolute except to the extent that it is abrogated by legislation. See McNees v Scholley, 46 Mich App 702, 707; 208 NW2d 643, 646 (1973). See generally 2 Harper & James, Law of Torts, §29.4, pp 1614, 1615. In Longstreet v County of Mecosta, 228 Mich 542, 551; 200 NW 248, 251 (1924), the Court said:
"That the construction and maintenance of public highways is the discharge of a governmental function, for the improper discharge of which no liability exists except as created by statute, is the settled law of this State (Gunther v County Road Commissioners, 225 Mich 619; 196 NW 386 [1923] where the authorities are reviewed at length).”
Where a statute attempts, in derogation of common law (see McEvoy v Sault Ste Marie, 136 Mich 172, 186-187; 98 NW 1006, 1010-1011 [1904]), to create liability, it must be strictly construed. See also Detroit v Putnam, 45 Mich 263, 265; 7 NW 815, 816 (1881). Thus, the only actions which might lie against the State for defective design of roadways are those specified by the statute, in addition to the judicial exceptions for nuisance above. Cf. Campbell, supra.
Ill
Assuming that plaintiff’s cause of action does properly fit within the statute, we must determine if the action was brought before the statute of limitations ran. Plaintiff has relied upon Rhule v Armstrong, 384 Mich 709; 187 NW2d 223 (1971). We find that that case is distinguishable in that the act in question (the wrongful death act, MCLA 600.2922; MSA 27A.2922) failed to set out a statute of limitations. As such, the general tort statute of limitations was the proper limitation period. Rhule is only authority for the proposition that if it may be said that MCLA 691.1411(2); MSA 3.996(111X2) is inapplicable to the cause of action herein then the general statute of limitations for actions against the State is appropriate.
While finding that the two-year statute of limitations was tolled, this Court, in Forest v Parmalee, 53 Mich App 505; 219 NW2d 806 (1974), reh granted, September 24, 1974, found that the statute, MCLA 691.1411(2); MSA 3.996(111X2), applied to an action based upon bodily injury or property damage resulting from the failure of a governmental agency to keep highways in reasonable repair and a condition reasonably safe and fit for travel. In Busha v Dept of State Highways, 51 Mich App 397; 215 NW2d 567 (1974), the plaintiffs contended that defendant should have been subject to the general three-year statute of limitations. The Court upheld the validity of the two-year statute and found that plaintiffs’ failure to file an action, which arose from a motor vehicle accident, within that two-year period foreclosed any action. See also Bonner v Moore, 52 Mich App 80; 216 NW2d 458 (1974) (action based on negligent maintenance of a county highway) and Pfaff v Ogemaw County Road Commissioners, 354 Mich 575; 93 NW2d 244 (1958).
As plaintiff’s action was filed more than two years after the date of the injury, we are unfortunately constrained to find that the action could not be maintained.
Affirmed. No costs, the construction of a statute being involved.
Plaintiff asserts that (1) MCLA 691.1401 et seq; MSA 3.996(101) et seq (the governmental immunity act) is unconstitutional as a denial of due process of law and equal protection, and (2) MCLA 691.1411(2); MSA 3.996(111X2) [the two-year statute of limitation for actions founded on MCLA 691.1402; MSA 3.996(102)] is an arbitrary and unreasonable classification.
"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 and fit 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 1909 PA 283, as amended, being 1948 CL 224.21. 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. No action shall be brought against the state under this section except for injury or loss suffered on or sifter July 1, 1965. Any judgment against the state based on a claim arising under this section from acts or omissions of the state highway department shall be payable only from restricted funds appropriated to the state highway department or funds provided by its insurer.” MCLA 691.1402; MSA 3.996(102).
This Court in Maki v East Tawas, 18 Mich App 109, 115-116; 170 NW2d 530, 532 (1969), aff'd 385 Mich 151; 188 NW2d 593 (1971), quoted from Denny v Garavaglia, 333 Mich 317, 331; 52 NW2d 521, 527-528 (1952), which quoted from Beckwith v Town of Stratford, 129 Conn 506; 29 A2d 775 (1942), thusly:
"' "Apart from nuisances which have their origin in accident, nuisances resulting in personal injury fall into three general classes. Beven, Negligence (4th ed), p 426, note. One class includes nuisances which result from conduct which is in itself a violation of law, and as to them it has been held on high authority that contributory negligence is not a defense, Delaney v Philhern Realty Corp, 280 NY 461, 465; 21 NE2d 507 (1939); but with such nuisances we have no concern in this case. A second includes nuisances which are intentional, using that word as meaning not that a wrong or the existence of a nuisance was intended but that the creator of them intended to bring about the conditions which are in fact found to be a nuisance. The other class includes nuisances which have their origin in negligence, which in its essence is an absence of care. Nuisances falling in the second class are those which we characterize as absolute and against which contributory negligence is not a defense. To hold that contributory negligence should not be a defense as regards them and should be as to the last class of nuisances rests upon the essential difference in the nature of the wrong committed. Negligence consists in a failure to exercise due care, and to a nuisance grounded on negligence, contributory negligence is for that reason an appropriate defense. Winfield, Torts, p 501. Where, however, the essence of the wrong is conduct which is intentional, in the sense in which we have used that word, that conduct goes beyond a mere lack of proper care, and there is not the same balance of obligation between the duty of one person to guard another from an injury from such a lack and the duty of the other not to fail to exercise a like care in his own protection. See Bohlen, Studies in the Law of Torts, p 527. The fact that contributory negligence is not a defense as against reckless misconduct presents a somewhat analogous situation.” ’ ” (Citations omitted.)
Also see 18 McQuillin, Municipal Corporations (3d ed rev), § 53.49,. pp 258, 259, where it is said:
" 'The wrongfulness must have been in the acts themselves, rather than in the failure to use the requisite degree of care in doing them, and therein lies the distinction, under the facts of this case, between "nuisance” and "negligence,” the one is a violation of an absolute duty; the other a failure to use the degree of care required in the particular circumstances — a violation of a relative duty. A nuisance may be created or maintained with highest degree of care, and the negligence of a defendant, unless in exceptional cases, is not material.’ In brief, a municipal corporation is liable for maintaining or contributing to the maintenance of a nuisance to the same extent as is an individual, and it may be jointly liable with others for the maintenance thereof.” (Footnotes omitted.)
If plaintiff wished to assert an intentional nuisance as outlined in Maki, supra, fn 3, such should have been pled.
In Annotation: Liability of municipality for injury to person or property due to improper plan for or defects in original construction of street or highway, 90 ALR 1502, p 1503, it is written:
"The courts, however, have enunciated the general rule that a municipality is not liable for injuries resulting from its adoption of an improper plan for a street or highway, but by numerous limitations, qualifications, and provisos have left little scope for its actual operation.”
Cf. Ferris v Board of Education of Detroit, 122 Mich 315, 318; 81 NW 98, 99 (1899), where the Court said:
"The trial court was of the opinion that the defendant, being a municipal corporation, could not be held liable for negligent injuries under the common law, and, there being no liability created by statute, the plaintiff could not recover. It is conceded by counsel for plaintiff that municipal corporations are not generally held liable, under the common law, for negligent injuries to individuals arising from defective plans of construction of public works or failure to keep the same in repair; but it is contended that, where the injury is the result of the direct act or trespass of the municipality, it is liable, no matter whether acting in a public or private capacity. We are satisfied that counsel for plaintiff are right in this contention.” (Emphasis supplied.)
Cf. Hobbs v State Highway Dept, 58 Mich App 189; 227 NW2d 286 (1975).
Likewise distinguishable is In re Woods Estate, 49 Mich App 412; 212 NW2d 240 (1973), where plaintiffs’ decedent had been decapitated by a steel beam from a barricade which had been erected because of construction. Also distinguishable is Harry v Muskegon, 41 Mich App 642; 200 NW2d 460 (1972), which was based upon irrepair and traffic obstruction which rendered "the street unsafe or unfit for travel”. Generally cf. 39 Am Jur 2d, Highways, Streets and Bridges, §§ 429, 431, pp 826, 827, 828.
Likewise, in 19 McQuillin, Municipal Corporations (3d ed rev), § 54.61a, pp 146,147, it is said:
"While it is generally held that there is no municipal liability for injuries resulting from the adoption of defective plans for the construction of public ways, this means no more than that a municipality is not liable for negligence or errors of judgment in the adoption of a plan for the construction of a public work. Accordingly, when a defect created by carrying out the adopted plan, and inherent in the plan itself, causes a condition so palpably and manifestly unsafe that no prudent man would approve its continued existence, the municipality may be held liable for failure to correct the defect. Furthermore, the right to devise plans has never been held to excuse the city from negligence of construction or maintenance of such plans. As soon as a municipality begins to carry out a plan of making public improvements, it acts ministerially and is bound to see that the work is done in a safe and skillful manner.” (Footnotes omitted.)
In 18 McQuillin, supra, §53.49, p 258, it is said: "But to create liability, however, the structure must have been inherently and imminently dangerous and a menace to the safety of the deceased, and the municipality must have created or participated in the creation of the dangerous and menacing condition.”
Cf. Prosser, Torts (3d ed), § 77, pp 528, 529.
This is consistent with the late Dean Prosser’s statement that:
"One anomaly is the generally accepted view that the municipality is liable if it can be found to have created or maintained a nuisance, even though it be in the course of an otherwise 'governmental’ function. The origin of this seems to be found in the idea that the creation of a private nuisance amounted to a taking of land without compensation, or that the city, as a landowner, was necessarily a proprietor, and subject to the responsibilities of one toward other landowners. If this was the explanation, it was soon lost to sight when the principle was extended to public nuisances where neither consideration is involved. Since liability for nuisance rests in many cases upon nothing more than negligence, for which in theory the municipality is not liable, the result has been a rather hopeless attempt to distinguish between the two, which has added confusion to the law of both nuisance and municipal corporations.” Prosser, supra, fn 7, § 125, pp 1009,1010.
For a discussion of the early development of governmental tort immunity, see Detroit v Blackeby, 21 Mich 84 (1870), majority opinion of Chief Justice Campbell, p 105 and dissent of Justice Cooley, p 117. Generally see Cooperrider, The Court, The Legislature, and Governmental Tort Liability in Michigan, 72 Mich L Rev 187 (1973).
Cf. Larkin v County of Saginaw, 11 Mich 88, 91 (1862), where Chief Justice Martin wrote: "What would be a nuisance if erected by an individual is not such when erected by authority of law and by the public, so as to confer a right of private action against the public therefor; and the same principle I think controls in this case that would had the bridge been built by authority of the Legislature.” | [
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T. M. Burns, J.
On May 22, 1972, plaintiff Percy B. Hill purchased a new 1972 Volkswagen from Tom Sullivan VW Company and executed an automobile retail installment contract with that company. The cash purchase price was $2,380. Plaintiff paid a down payment of $350, and the time balance of $2,446.92 was to be paid in 36 consecutive monthly installments of $67.97, commencing June 20, 1972. Under this agreement, Tom Sullivan VW Company retained a security interest in the vehicle.
The contract was later assigned to defendant Michigan National Bank of Detroit. Under the contract, the secured party was given the right to repossess the vehicle in the event of default by the purchaser in any of the payments. Paragraph 7 of the security agreement provides that:
"In the event of a default the Second Party shall have the right, without notice or demand, to take immediate possession of the Goods, wherever the same may be located, without legal process unless such repossession cannot be accomplished without a breach of the peace * * * All rights and liabilities of the parties hereto concerning the retaking, retention, redemption, and resale of the Goods, and the disposition of the proceeds thereof, shall be governed by the applicable provisions of the Uniform Commercial Code as adopted in the State of Michigan.”
Pursuant to this contractual provision and pursuant to the applicable provision of the Michigan Uniform Commercial Code, MCLA 440.9503; MSA 19.9503, the defendant, on June 21, 1973, at a time when plaintiffs account was delinquent for two months, repossessed the vehicle from the driveway in front of plaintiffs residence for nonpayment of installments. The vehicle was removed without any confrontation between plaintiff and defendant’s agents. On that same day, defendant sent plaintiff a notice of repossession and sale, said notice advising plaintiff of the sum needed to redeem the vehicle and informing him that if . not redeemed, the vehicle would be sold at public auction on July 6, 1973.
On July 2, 1973, plaintiff filed his complaint in Wayne County Circuit Court and obtained an ex parte restraining order enjoining the bank from proceeding with the repossession sale. The complaint sought injunctive relief and damages of $250,000. After a show cause hearing, an order was entered on July 11, 1973, dissolving the temporary restraining order.
On July 25, 1973, defendant filed a motion for summary judgment of dismissal in accordance with GCR 1963, 117.2(1) for plaintiff’s failure to state a claim upon which relief could be granted. After a hearing and oral argument, the lower court granted the motion on August 24, 1973. On September 12, 1973, plaintiff filed a petition for rehearing, which after another hearing and oral argument, was denied on September 21, 1973. Plaintiff now appeals as of right from the trial court’s dismissal of his complaint. The Attorney General was granted leave to intervene in this appeal, and has filed a brief urging this Court to grant the relief requested by the plaintiff.
The controlling issue raised by plaintiff on appeal is whether self-help repossession pursuant to MCLA 440.9503; MSA 19.9503, constitutes state action and thus denies plaintiff his Fourteenth Amendment right to due process of law. Plaintiff argues that MCLA 440.9503; MSA 19.9503, denies due process because no notice or opportunity to be heard is accorded the owner of the vehicle prior to the seizure by the secured party. In its opinion, the trial court found otherwise, concluding that there was no state action in connection with defendant’s repossession of plaintiffs vehicle.
A thorough research of Michigan case law indicates that there is no Michigan case directly in point which deals with this particular issue. However, there is a considerable amount of authority from other jurisdictions, both state and Federal, that have upheld a secured creditor’s right to voluntarily repossess a defaulting debtor’s vehicle without prior notice or hearing.
Most recently, in Turner v Impala Motors, 503 F2d 607 (CA6, 1974), the Sixth Circuit Court of Appeals considered and rejected arguments identical to those presented by plaintiff in the instant case. In that case, Tennessee’s statutory implementation of the Uniform Commercial Code’s § 9-503 was challenged as being unconstitutional. Like the plaintiff in the case at bar, the plaintiff in Turner relied on Fuentes v Shevin, 407 US 67; 32 L Ed 2d 556; 92 S Ct 1983 (1972), which held that notice and a hearing are required before the execution of a prejudgment writ of replevin. Like plaintiff Hill, the plaintiff in Turner argued that: (1) the presence of state action is indicated by the fact that the state has authorized and encouraged repossession by secured creditors; (2) the Tennessee statute deprives the debtor of his rights to notice and an opportunity to be heard; and (3) the waiver provision contained in the contract does not exclude the requirements of notice and a judicial hearing on the waiver prior to the repossession.
Replying to the plaintiffs arguments, the Court, speaking through Circuit Judge Peck, stated:
"However, in the recent case of Mitchell v W T Grant Co, 42 USLW 4671; 94 S Ct 1895; 40 L Ed 2d 406 (1974), it would appear that Fuentes has been effectively overruled. See concurring opinion of Powell, J., id at 4678; 94 S Ct 1895; and the dissenting opinion of Stewart, J., id at 4682; 94 S Ct 1895. In Mitchell, judicial sequestration procedures in Louisiana, similar to the replevin statutes struck down in Fuentes, allowed a creditor to obtain, on an ex parte basis from a judicial authority, a writ of sequestration upon submission of an affidavit and posting of a security bond. Thereupon a public official, without providing notice and a hearing to the debtor, seized the property. Distinguishing judicial control over the process from the court clerk’s control in Fuentes, the Supreme Court found the procedure was not invalid.
"Prior to Mitchell, the challenge to the Commercial Code’s self-help repossession provisions generated considerable litigation. However, the only federal appellate courts to have met the issue to date have failed to find significant state action present.” (Citations omitted) 503 F2d at 610.
In affirming the district court’s dismissal of the suit for failure to state a cause of action, the Court, in concluding that a finding of state action was not justified, stated at pp 611-612:
"It is clear that in this case the state did not exert any control or compulsion over the creditor’s decision to repossess. The private activity was not commanded by the simply permissive statute. While mere existence of the statute might seem to suggest encouragement, we conclude that the effect of the statute is only to reduce a creditor’s risk in making repossessions. As a practical matter, a creditor’s decision is more likely to be principally influenced by the economics of the situation than by the presence of a permissive statute.
"We fail to see where the creditor has sought to invoke any state machinery to its aid. Rather, the creditor has simply relied upon the terms of its security agreement pursuant to the private right of contract. Compare Shelley v Kraemer, 334 US 1 (1948). Assuming that the statute was non-existent, the remedy of self-help repossession could still be utilized based on its common law heritage and the private right to contract. We fail to see how the creditor is attempting to enforce any right in reliance upon a constitutional or statutory provision as in Reitman or is even asserting any state-created right. Rather, we see a creditor privately effectuating a right which was created in advance by contract between the parties. At best, the right is one that is merely codified, but not created, in the statute.”
Such is the case here. MCLA 440.9503; MSA 19.9503 is simply a permissive statute. Defendant’s decision to repossess was not compelled by the statute; it was made in reliance upon the terms of its security agreement pursuant to the private right of contract. Furthermore, absent the statute, defendant could still utilize the remedy of self-help repossession because that common law right was long recognized in Michigan prior to the enact ment of MCLA 440.9503; MSA 19.9503. Finally, as in Turner, we are of the opinion that the common law right of self-help repossession has merely been codified by our present statute.
Therefore, we hold that self-help repossession pursuant to MCLA 440.9503; MSA 19.9503 does not constitute state action within the meaning of the due process clause of the Fourteenth Amendment. Accordingly, the trial court’s action in granting defendant’s motion for summary judgment was proper.
Since due process rights may not be invoked until there is a finding of state action, The Civil Rights Cases, 109 US 3; 3 S Ct 18; 27 L Ed 835 (1883), in light of our holding, it is unnecessary for us to consider plaintiff’s claim that he did not voluntarily waive his rights to notice and an opportunity to be heard.
Plaintiff also contends that the trial court erred in dismissing his complaint because the trial court failed to consider plaintiff’s claims that the repossession was not peaceful and that the contract provision in question was unconscionable. We disagree.
In its opinion, the trial court stated that the plaintiff was not required by MCLA 440.9503; MSA 19.9503 to give up the property being repossessed, and that if the repossession could not be conducted peacefully, then defendant would have been required to seek the aid of the state through judicial process. Since defendant did not seek the aid of the state through judicial process, it is quite apparent that the trial court concluded that the repossession was peaceful. While we think that the trial court should have addressed this question more directly, we will not reverse its findings merely on this question of semantics.
As to the contention that the trial court erred in failing to consider plaintiffs claim that the contract provision was unconscionable, we point out to the plaintiff that while he did argue this point to the court during oral argument, his complaint fails to allege this contention. A motion based solely on GCR 1963, 117.2(1) is to be tested by the pleadings alone. Todd v Biglow, 51 Mich App 346, 349; 214 NW2d 733 (1974). Since this argument concerning unconscionability is not in the pleadings, plaintiff cannot now complain that the trial court erred in not considering this oral claim.
Finally, we have carefully considered plaintiffs remaining allegations of error. These claims were either not preserved on appeal or do not require decisional discussion.
Affirmed.
This right of repossession is similar to that codified in MCLA 440.9503; MSA 19.9503 which states:
"[R]ight to possession of collateral after default.
"Sec 9503. Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action. If the security agreement so provides the secured party may require the debtor to assemble the collateral and make it available to the secured party as a place to be designated by the secured party which is reasonably convenient to both parties. Without removal a secured party may render equipment unusable, and may dispose of collateral on the debtor’s premises under section 9504. PA 1962, No. 174, § 9503, Eff Jan 1,1964.”
US Const, Am 14: [N]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of law, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Federal cases that have so ruled include Gibbs v Titelman, 502 F2d 1107 (CA 3, 1974); Nowlin v Professional Auto Sales, Inc, 496 F2d 16 (CA 8, 1974); James v Pinnix, 495 F2d 206 (CA 5, 1974); Shirley v State National Bank of Connecticut, 493 F2d 739 (CA 2, 1974); Adams v Southern California First National Bank, 492 F2d 324 (CA 9, 1973); Pease v Havelock National Bank, 351 F Supp 118 (D Neb, 1972); Greene v First National Exchange Bank of Virginia, 348 F Supp 672 (WD Va, 1972); Oller v Bank of America, 342 F Supp 21 (ND Cal, 1972); McCormick v The First National Bank of Miami, 322 F Supp 604 (SD Fla, 1971).
Other jurisdictions that have upheld this right include: Chrysler Credit Corp v Tremer, 267 So 2d 467 (Ala Civ App, 1972); Messenger v Sandy Motors, Inc, 121 NJ Super 1; 295 A2d 402 (1972); Frost v Mohawk National Bank, 74 Misc 2d 912; 347 NY Supp 2d 246 (1923); Brown v United States National Bank of Oregon, 509 P2d 442 (Or, 1973).
Tennessee Code Annotated (TCA) § 47-9-503 is identical to Michigan’s version contained in MCLA 440.9503; MSA 19.9503.
See e.g., Tanahill v Tuttle, 3 Mich 104, 111 (1854); Thurber v Jewett, 3 Mich 295, 298 (1854); Bateman v Grand Rapids & Indiana Railroad Co, 96 Mich 441; 56 NW 28 (1893); Tuomista v Moilanen, 310 Mich 381, 384, 17 NW2d 222 (1945); National Cash Register Co v Richards, 159 Mich 128; 123 NW 587 (1909); Wiggins v Snow, 89 Mich 476; 50 NW 991 (1891). | [
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Danhof, P. J.
Plaintiff appeals, on leave granted, from a decision and order of the Workmen’s Compensation Appeal Board reversing that part of a hearing referee’s award of compensation for continuing disability.
Plaintiff was employed on an engine assembly line in one of defendant’s automobile plants. In December, 1967, plaintiff suffered an injury to his right hand when an engine fell from the line. Plaintiff experienced swelling, pain and numbness in his hand which required hospitalization and surgery on three separate occasions over the course of the following year. Between these hospital stays, plaintiff returned to work where he was given favored employment which required the use of only one hand in the engine tear-down department. He continued at this favored work from December, 1968 until April, 1970. In April, 1970, plaintiff left work after suffering an episode of nervous tremors brought on, he testified, by loss of sleep and anxiety caused by swelling, pain and numbness in his hand. While still away from work on May 23, 1970, plaintiff severely injured a leg in an accident in a parking lot. Plaintiff underwent surgery for the leg injury which involved the insertion of plates, pins and screws and which necessitated the wearing of a cast for 14 months.
When the cast was removed in June, 1971, plaintiff reported back to work. He was given a physical examination by a company doctor and placed on two job restrictions arising from his hand and leg injuries. No work could be found for him in the tear-down department within the restrictions imposed by these dual disabilities. Therefore, he was laid off, and he sought work elsewhere without success.
Plaintiff applied for compensation, and the hearing referee determined that plaintiff had "sus tained a loss of industrial use of his right hand” and he further found "that the plaintiff has been continuously disabled and is presently disabled as a result of the aforementioned injury to his right hand”. The Workmen’s Compensation Appeal Board affirmed the referee’s findings and award of compensation at the rate of $69 per week from February 5, 1968, the date on which it was determined that the plaintiff had sustained the loss of the industrial use of his right hand. However, the board reversed the finding that the plaintiff was entitled to continuing compensation for loss of wage earning capacity. In arriving at this conclusion, the board apparently adopted a "but for” test, reasoning that had plaintiff not suffered the noncompensable leg injury, he would still be able to engage in the favored work previously assigned to him. The majority opinion states, "In the matter before us the record establishes that were it not for the non-work connected leg injury plaintiff would be back on the tear-down job continuing in his established wage earning capacity”. From this determination, the board went on to conclude that the defendant was not liable for a continuing disability because: "When disablement from earning wages is resultant from successive injuries and the second injury is non-work connected, compensation will not be granted. See Whitt v Ford Motor Co, 383 Mich 726 [178 NW2d 917 (1970)].”
At the outset, it should be noted that Whitt v Ford Motor Co, supra, does not support the board’s position. Whitt involved the Second Injury Fund which is liable for compensation payments only when the second injury arises out of and in the course of employment regardless of how the first injury was incurred. In this respect, the facts in Whitt are dissimilar to those in the present case.
The board also cited two of its own decisions in support of its conclusion in this case. One of these decisions has been before this Court in Medacco v Campbell, Wyant & Cannon Foundry Co, 48 Mich App 217; 210 NW2d 360 (1973). In that case, plaintiff had suffered a hand injury in 1964, but he remained on the same job at the same wage until he became permanently disabled in 1968 because of a heart attack. The referee, as here, awarded continuing compensation based upon the hand injury. The board, as here, reversed this determination holding that the plaintiff’s noncompensable heart condition caused his wage loss since he had been able to work despite the hand injury. This Court restated the board’s conclusion and reversed its decision with a discussion of the relation between the prior hand injury and the loss of wage earning capacity that is of direct applicability to the present case:
"The board decided that the plaintiff’s noncompensable heart condition and not his hand injury accounted for the post-January 22, 1968 wage loss and therefore the referee erred in determining that plaintiff was totally disabled as a result of his 1964 hand injury. The rule is that '[I]t is loss of wage earning capacity — not actual loss of wages — which is compensable’. Sims v R D Brooks, Inc, 389 Mich 91, 93; 204 NW2d 139, 140-141 (1973); MCLA 412.11; MSA 17.161 (now MCLA 418.371; MSA 17.237[371]). The Workmen’s Compensation Appeal Board found that plaintiff’s wage loss was due to his noncompensable heart condition, but made no specific finding as to the effect of the hand injury on plaintiff’s earning capacity, other than implying that since there was no apparent wage loss until the heart attack, there could be no compensable disability from the hand injury. The board’s legal reasoning was erroneous.” (Medacco, supra, 48 Mich App at 221; 210 NW2d at 363)
The board’s holding that because the plaintiff suffered subsequent disabling injury he cannot receive compensation for the original job connected disability is also refuted by the opinion in Medacco. Again relying on Sims v R D Brooks, Inc, supra, and citing the policy behind the Workmen’s Compensation Act, this Court held that: "Assuming that the appeal board meant to hold that an intervening, noncompensable, totally disabling heart condition renders a prior work-related disability noncompensable, we must disagree with the appeal board’s conclusion.” Medacco, supra, 48 Mich App at 227; 210 NW2d at 366.
In the present case, the board’s error is more egregious because rather than suffering from a second noncompensable but totally disabling condition, plaintiff here contends that he has fully recovered from the second injury and it is the prior hand injury coupled with the medical classification given him by the defendant which prevents him from working. If the plaintiff’s hand injury has resulted in his continuing disability, preventing the performance of even favored work, the subsequent injury to his leg will not in and of itself defeat his claim for compensation. Lynch v Briggs Manufacturing Co, 329 Mich 168; 45 NW2d 20 (1950). These considerations, however, approach the area of fact finding, an area this Court must avoid in order to confine its review to issues of law. On remand, the Board will make findings of fact with regard to the proper legal standard. Wright v Thumb Electric Cooperative, 49 Mich App 714; 212 NW2d 607 (1973).
Reversed and remanded for further proceedings consistent with this opinion. Costs to plaintiff. | [
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Per Curiam.
The defendant was originally charged with breaking and entering an occupied dwelling (MCLA 750.110; MSA 28.305). He pled guilty to the added offense of breaking and entering an unoccupied dwelling (MCLA 750.110; MSA 28.305). The trial judge sentenced him to 4 to 10 years in prison on November 26, 1973, to run concurrently with another sentence in another case given defendant the same day. The defendant appeals as of right.
Defendant claims the trial judge, the Honorable George R. Deneweth, did not take the plea in accordance with the requirements of GCR 1963, 785.7(2). The following excerpts clearly show the judge fully developed all areas:
"Mr. Sulek [assistant prosecutor]: May it please the court, this is People versus David Mark Stomps, Criminal File C-73-609.
"The defendant was arraigned before this honorable court on September 18, 1973. Bond in the amount of one thousand dollars was set and not furnished. The charge of [sic] breaking and entering an occupied dwelling, a violation of M.S.A. 28.305.
"Your Honor, the defendant is present before the court represented by counsel, Mr. Ronald Haerens.
"The people at this point would like to enter a motion and add count two, being breaking and entering of an unoccupied dwelling, for the reasons that the defendant has already pled guilty to attempted breaking and entering on court file C-73-282.
"Further, that file C-73-677 is currently pending and, as part of the plea process, that file would be dismissed.
"Further, your Honor, it is my understanding that Ronald Haerens will waive the formal production of an amended information and a reading thereof.
"Mr. Haerens [defense counsel]: Yes, your Honor, that is right.
"The Court: All right. You are asking then to add count two to file C-73-609, which would be breaking and entering, and reducing it from a ten-year to fifteen-year felony?
"Mr. Sulek: From fifteen to ten.
"The Court: I am sorry. Fifteen to a ten. And Sergeant Hanna, you are in charge of this matter are you not?
"Officer: Yes, sir.
"The Court: I am sure you know much more about this thing than I do. What is your feeling with regard to the addition of count two or the whole arrangement that has been worked out?
"Officer: I think, considering perhaps the defendant’s age, and circumstances of the cases involved, I agree with the addition of the second count.
"The Court: You would think it would be in order?
"Officer: I do.
"The Court: Okay, under those circumstances, I will accept it, if there is no objection.
"Mr. Haerens: No objection, your Honor.
"The Court: How does the defendant plead to count one?
"Mr. Haerens: Your Honor, I am advised by my client he will plead guilty to count two.
"The Court: I would like to ask him some questions on the record.
"Mr. Haerens: Yes, your Honor.
* * *
"The Court: You do have a prior criminal record because, as a matter of fact, you have been convicted by a plea in this Court now of attempted B and E, isn’t that right?
"Respondent [defendant]: Yes.
"The Court: You are awaiting sentence on that charge at the present time, is that correct?
"Respondent: Yes.
"The Court: It is also my understanding that the one you are pleading guilt [sic] to, now, was committed while you were out on bond on the other one?
"Respondent: Yes.
"The Court: You understand that these sentences could run consecutively?
"Respondent: Yeah.
"The Court: Do you also understand that, as part of the plea bargaining process here, that the prosecutor has agreed to recommend to this court that these sentences run concurrently rather than consecutively. Do you understand that?
"Respondent: Yes.
"The Court: Do you have any charges pending against you?
"Respondent: Yes.
"The Court: Well, you have possession of a stolen motor vehicle, C-73-677. You have one in District Court?
"Respondent: Yes.
"The Court: What is that?
"Respondent: Possession of a stolen motor vehicle.
"Mr. Sulek: I believe it is UDAA, your Honor.
"The Court: Do you understand that the only promises that have been made here today are that the charges concerning the possession of a stolen motor vehicle, the UDAA, unlawfully driving away an automobile, are to be dropped, and therefore Ronald Haerens and the prosecution have reduced this breaking and entering, cutting it from a fifteen to a ten-year felony, and that the prosecution is going to recommend to this court that you serve your sentence in those two cases, the one you are convicted on as well as this one, concurrently rather than consecutively. Do you understand that?
"Respondent: Yes.”
The defendant raises other issues that this Court, having reviewed the record and transcript, finds to be without merit.
Conviction affirmed.
This case was consolidated and heard together with defendant’s appeal in #19871. We have chosen, however, to issue separate opinions in each of these cases. Also, a review of our Supreme Court’s recent opinion in People v Shekoski, 393 Mich 134; 224 NW2d 656 (1974), as applied to these facts does not require a different holding. | [
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Quinn, P. J.
October 2, 1973, defendant pleaded guilty to assault with intent to rob being armed, MCLA 750.89; MSA 28.284. He was sentenced and he appeals on a single issue, namely: was it reversible error for the trial court to accept the plea when the factual basis underlying the plea failed to disclose that he was armed?
Reluctantly, but unhesitatingly, we must answer yes. The plea was taken subsequent to the effective date of GCR 1963, 785.7. The record does not disclose that defendant was armed. GCR 1963, 785.7(3)(c) required the trial judge to reject the plea. Failure to do so constituted reversible error, GCR 1963, 785.7(5).
So long as GCR 1963, 785.7 is in effect, trial judges taking pleas and judges of the Court of Appeals reviewing pleas taken should forget they are judges. Their function in these proceedings is clerical. Their job is to see that GCR 1963, 785.7, chapter and verse, is, or has been, meticulously complied with as to all matters of substance, including t’s crossed and i’s dotted, People v Shekoski, 393 Mich 134; 224 NW2d 656 (1974).
Reversed and remanded. | [
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Van Valkenburg, J.
The defendant was originally charged with second degree murder. MCLA 750.317; MSA 28.549. After negotiating a plea to manslaughter, MCLA 750.321; MSA 28.553, the defendant appealed and this Court reversed in an order dated May 21, 1973. On remand further negotiations were conducted and the defendant pled guilty to a charge of attempted manslaughter. MCLA 750.321; MSA 28.553; MCLA 750.92; MSA 28.287. The defendant now appeals contending that it was error to accept his plea because there is no such crime as attempted manslaughter. We affirm.
We preface our discussion by noting that the fact that the record shows that the defendant is guilty of the completed offense is not a ground for setting aside a conviction of attempt. People v Bradovich, 305 Mich 329; 9 NW2d 560 (1943). Thus, the fact that the victim died would not prevent an attempt conviction.
We must reject the defendant’s argument that there is no such thing as attempted manslaughter. While there can be no such thing as attempted involuntary manslaughter, where the theory is voluntary manslaughter there can be an attempt. See LaFave & Scott, Criminal Law, § 59 p 423. The draftsmen of the proposed Michigan Revised Criminal Code state the rule as follows in their comments to Section 1001, p 82, of the code:
"The proposed definition of attempt follows the conventional pattern of limiting this inchoate crime to purposeful conduct, i.e., the actor must have an 'intent to commit a specific offense.’ Thus, where criminal liability rests on the causation of a prohibited result, the actor must have an intent to achieve that result even though violation of the substantive offense may require some lesser mens rea. Reckless driving, for example, does not constitute attempted manslaughter. A person charged with the substantive crime of manslaughter may be liable as a result of negligence or recklessness causing death, but the same recklessness would not be sufficient if the victim did not die and the actor were only charged with attempt; here, the state would have to show an intent to achieve the prohibited end result, death of the victim. In this area, as in others if the substantive crime requires only recklessness, the mens rea requirement for an attempt is substantially higher than that for the substantive crime.”
We also believe that a plea to attempted manslaughter may be accepted even when the only possible theory is involuntary manslaughter. A guilty plea to an attempt charge entered as a part of a plea bargain may be accepted even though a jury conviction on the same charge might have to be reversed. We reject the dicta to the contrary contained in a footnote to People v Brandon, 46 Mich App 484; 208 NW2d 214 (1973). On several occasions this Court has upheld pleas to attempt charges when, at least arguably, a jury conviction would have been reversed. People v Pickett, 21 Mich App 246; 175 NW2d 347 (1970); People v Miller, 25 Mich App 586; 181 NW2d 610 (1970); People v Burgan, 27 Mich App 216; 183 NW2d 413 (1970). We see no reason for departing from the rule of these cases.
The court rule, GCR 1963, 785.7(3)(c), provides that the factual basis for the plea must be placed on the record. This factual basis may support a finding that the defendant is guilty of either the crime charged or the crime pled to. Where the factual basis would support a finding of manslaughter a plea to attempted manslaughter may be accepted. When a plea is otherwise proper, a defendant may plead guilty to an attempt, even though a jury conviction might be improper.
In People v Foster, 19 NY2d 150; 278 NYS2d 603; 225 NE2d 200 (1967), the New York Court of Appeals was faced with a contention that a plea to attempted involuntary manslaughter was a nullity, had no basis in law, and violated due process. The Court answered these contentions as follows:
"[There is no violation] * * * when a defendant knowingly accepts a plea to attempted manslaughter as was done in this case in satisfaction of an indictment charging a crime carrying a heavier penalty. In such case, there is no violation of defendant’s right to due process. The defendant declined to risk his chances with a jury. He induced the proceeding of which he now complains. He made no objection or complaint when asked in the presence of his counsel whether he had any legal cause to show why judgment should not be pronounced against him, and judgment was thereafter pronounced. As a result the range of sentence which the court could impose was cut in half — a substantial benefit to defendant.”
The defendant has received the benefit of his bargain and we decline to hold that it was error to accord him this benefit.
Affirmed.
V. J. Brennan, P. J., concurred. | [
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Garland, J.
This case comes to this Court on appeal from a decision of the Workmen’s Compensation Appeal Board affirming the referee’s decision that plaintiff is partially disabled but has not sustained "loss of industrial use” of his left hand.
Plaintiff was employed as a tree artisan by the City of Detroit, Parks and Recreation Department, Forestry Division. Briefly, the job requires the handling of heavy equipment in the repair, planting, removal and trimming of trees. While feeding brush into a "clipper” during the course of his employment on July 28, 1969, the plaintiff suffered a serious injury. through the amputation of the four fingers of his left hand. Neither the thumb nor the palm were injured. Following hospitalization and a period of recuperation, he returned to work in October 1969. >For the injuries so received, the defendant paid the plaintiff compensation benefits in the amount of $92 per week for 109 weeks. After these benefits ceased in September 1971, plaintiff filed a claim for an additional 106 weeks of compensation claiming the loss of the industrial use of his left hand.
Upon his return to work in October, the plaintiff could no longer handle the saws and pruning devices used by a tree trimmer. He continued as a part of the crew as a laborer in raking and cleaning up debris. In the performance of this work, the plaintiff used his left hand to control and guide the rake by grasping it between his thumb and the remaining stubs of his fingers.
At the hearing before the referee, it was elicited from plaintiff that while he could hold nothing with his left hand, he was able to guide the rake in some measure, although the rake, at times, slipped from his hand. Plaintiff further testified that even guiding the rake in this manner resulted in pain which was of such a nature as to cause him to lose time from his work.
Also testifying at the hearing was a Dr. Horvath who after reviewing the reports of plaintiffs regular physician and examining the plaintiff stated:
"Primary use of the left hand in this man would be the wrist of the hand, where the right hand does the primary work and the left one is his assister or supporter * * * . Perhaps he could prop a rake into his hand or a broom or something of that sort that didn’t require a great deal of pressure and have his left hand acting as an assistant to the right one.”
The doctor then testified that in his opinion the plaintiff had not suffered loss of the industrial use of his left hand. His opinion was based on the assumption that as long as the thumb remains mobile, there may be some use of the hand. Moreover, a "pinch grasp” still remained "since there is some stumps which can oppose the thumb”.
In upholding the referee’s decision that the industrial loss of use had not occurred, the appeal board pointed to the plaintiffs use of the injured hand to a limited degree in earning wages and to the testimony of Dr. Horvath. It did find, however, that at the time of the injury the plaintiff was engaged in skilled labor.
In this appeal, the plaintiff argues that both the referee and the appeal board applied an incorrect legal standard in determining that plaintiff had not lost the industrial use of his hand. Plaintiff contends that the correct standard is whether the hand can still be used for grasping or prehension which is the principal function of the hand. Indeed, until 1968 the standard which plaintiff urges was the law in Michigan, Mitchell v Metal Assemblies, Inc, 379 Mich 368; 151 NW2d 818 (1967); Lovalo v Michigan Stamping Co, 202 Mich 85; 167 NW 904 (1918).
However, in 1968 the Supreme Court adopted a new standard whereby the question of whether there has been an industrial loss of use must be determined:
"[T]here must be that total incapacitating loss of use which renders the organ or member industrially useless for any type of work, skilled or unskilled. To hold otherwise we think would be a logical contradiction. Plaintiffs injury has not amounted to the actual physical loss tantamount to destruction or amputation contemplated by the specific loss schedule. The test is not the degree of loss measured by the requirements of the skill of the injured workman. The test is the degree of loss as compared with actual physical loss by destruction or amputation.” Hutsko v Chrysler Corp, 381 Mich 99, 102-103; 158 NW2d 874 (1968). In accord is Chaffin v Grand Rapids Metalcraft, 38 Mich App 200; 196 NW2d 20 (1972).
This total incapacity standard for loss of industrial use of the injured appendage has recently been reaffirmed by the Supreme Court, DeGeer v DeGeer Farm Equipment Co, 391 Mich 96; 214 NW2d 794 (1974). Thus it seems quite clear that the fundamental premise for plaintiffs appeal is erroneous.
Moreover, there clearly is evidence in the record which supports the decision of the referee and the appeal board that plaintiff has not lost the industrial use of his left hand under the Hutsko standard. Thus, Dr. Horvath’s testimony was that the plaintiff could make a limited industrial use of his left hand. Plaintiff’s own testimony did not negate that of the doctor because he himself stated that he could use the hand for periods of time without it aching. In these circumstances, the factual determination made below is conclusive and the decision of the Workmen’s Compensation Appeal Board is affirmed. | [
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Bebeau, J.
The defendant, Lloyd L. Little, was found guilty in a bench trial of the felony of carrying a dangerous weapon, to wit, a 20-gauge shotgun, in a vehicle. MCLA 750.227; MSA 28.424.
At approximately 8:10 p.m. on August 3, 1972, two plainclothes officers of the Pontiac police department responded to an anonymous tip that a group of armed men had gathered near the corner of Douglas and Mechanic Streets, in front of an apartment in the City of Pontiac. As the officers approached the corner on Mechanic Street from the east, they saw a Ford Mustang parked on the south side of the street facing them. As they drove by, three or four men exited the car. The officers continued past the car and turned around some distance away. As they turned, an Oldsmobile pulled up behind the Mustang and then four or five men got out of it. At this point two uniformed officers arrived. None of the four officers could positively state that he saw defendant Little exit either car, but the officers testified that, except for one woman, no one entered or left the area around the two cars.
One of the officers recognized one of the men, Charles Cummings, as being wanted on an outstanding felony warrant. As Cummings was being arrested, the other eight men were told to line up and put their hands on the cars where they were standing. Defendant Little was standing next to the Oldsmobile, and he was searched. An officer testified he saw five people exit the Oldsmobile when he approached the vehicle and he took down their names.
After Cummings was arrested, the officers observed a loaded sawed-off shotgun lying on the rear seat of the Mustang. Later another loaded sawed-off shotgun was also found in the Mustang. One of the officers then saw through the Oldsmobile window a 20-gauge shotgun which had its stock on the floor board and its barrel pointed toward the ceiling. The gun was not loaded, but slugs and shells were found lying next to it in the seat and on the dashboard. All three guns were removed and the remaining eight men were arrested for carrying a dangerous weapon in an automobile.
Eight of the nine codefendants waived a jury trial and were tried and convicted. Defendant appeals as of right.
The statute under which the defendant was charged and convicted reads in pertinent part: "Any person who shall carry a * * * dangerous weapon * * * in any vehicle operated or occupied by him * * * shall be guilty of a felony.” MCLA 750.227; MSA 28.424. Defendant argues on appeal that insufficient evidence was produced at trial to establish the element of carrying beyond a reasonable doubt.
After hearing the evidence, the trial court found that the defendant had occupied one of the automobiles and that he knew of the presence of the weapon in that vehicle. The testimony of the police that the defendant was among the group of men who got out of the cars and that no outsider had entered that group does establish that the defendant must have occupied one of the cars. Furthermore, the open display of weapons in the cars gives rise to an almost compelling inference that the defendant knew of their presence. The defendant argues, however, that no direct evidence was presented to show that he actually carried any of the weapons, and that if the finding of carrying was based on his knowledge of the existence of the weapons, that it was impermissible as an inference built on an inference.
In order to convict under this statute, the prosecution must show that the defendant occupied a vehicle and that he knew of the presence of a weapon in that vehicle. People v Smith, 49 Mich App 630; 212 NW2d 768 (1973); People v Meadows, 26 Mich App 675; 182 NW2d 721 (1970).
Because of the absence of direct evidence of the actual and sole physical custody in the defendant, he says his conviction should be reversed. He may have some support in a dissenting opinion of this Court in Smith, supra, for that claim. This theory would permit the carrying in a vehicle of five guns on the floor of a vehicle occupied by four passengers and a driver, none of whom had the weapons strapped to their bodies or in their hands.
The prosecution need not show physical possession of the weapons in order to convict. It is sufficient to show that carrying the weapon in the vehicle was within the scope of a common unlawful enterprise participated in by all defendants. People v Pearce, 20 Mich App 289; 174 NW2d 19 (1969). Participation in the common enterprise imputes to each member participation in carrying weapons used to further its cause. The trial court found such an enterprise. We quote from the court’s opinion:
"The inferences as to evidence of common participation are drawn from the following facts: one, we had groups of men in each car; two, although they were not all dressed alike, they were dressed somewhat similarly. They were approximately the same age. There were guns in each car. There was ammunition in each car. There was some evidence that some of them knew each other. There was conversation about the vehicle. Some of them were clustered in discussion. The cars were in conjunction with one another. The court believes that from the evidence it can infer that there was common participation in the acts of carrying these weapons.”
We find that the record supports the facts found by the trial judge and the inference drawn from them.
The defendant contends that the inference of his participation is drawn from the inference that he knew of the presence of the guns. If this were true, the conclusion that he carried the guns would be impermissible as an "inference on an inference”. People v Atley, 392 Mich 298; 220 NW2d 465 (1974); People v Petro, 342 Mich 299, 307-308; 70 NW2d 69, 70 (1955). Most courts subscribe to the view that guns are frequently used to commit crimes and to effectuate escape.
The inference of participation is independent of the inference of knowledge; however, the former is based upon the facts found by the judge in the excerpt quoted above. The latter derives from an independent source, the open way in which the guns were carried. Thus, there was no inference based upon an inference.
Finally, defendant objects to a statement by the prosecutor to one of the witnesses. During the examination of one of the police officers, the prosecutor asked him if he saw any of the men in the courtroom that he had seen on the evening in question. He then stated:
"Walk anywhere you want to in the courtroom. The defendants ordinarily at a trial sit at the counsel table.
"I can represent to this officer, your Honor, that the defendants other than defendant Cummings, are in the courtroom.”
The trial court sustained defense counsel’s objection to the prosecutor’s remark. While we do not wish to support prosecutorial conduct of this type, we do not find that it prejudiced the defendant’s case sufficiently to require reversal. The other officer made a positive in-court identification of the defendant untainted by the prior error. The court explicitly relied upon the second officer’s testimony as to identity. Thus, the error cannot be said to have affected the judgment of the finder-of-fact.
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O’Hara, J.
The first and most important thing to be understood and emphasized in this case is that it is not the traditional accounting case between joint tenants or tenants in common.
The threshhold issue of any right of either joint tenant to an accounting was not raised in the court below. It is not raised, briefed or argued in this case.
The action began with plaintiff’s complaint alleging malicious destruction of six acres of growing strawberry plants on a portion of the jointly-owned land. The multiple count complaint also seeks double or triple damages pursuant to statutes claimed by plaintiff to apply. The actual damage claimed is $16,000. The ad damnum clause is for $48,000,_
The answer denies the allegation of malicious damage by plowing up the strawberries. It raises the affirmative defense that defendant can’t be guilty of an act of trespass on land of which he . has co-equal rights with the plaintiff.
He asserts further that by reason of the indivisible nature of the estate he could not be guilty of waste or conversion as alleged. Additionally he counterclaims contending that the land in question was not put to its optimum financial use, that he was excluded from his rightful co-equal management and control and deprived of his rightful fair rental value of the portion unlawfully used by plaintiff.
All of the foregoing is denied by plaintiff in his reply to the answer and his answer to the affirmative defenses.
The trial judge, prior to the trial proper, denied plaintiffs petition for a preliminary injunction from harvesting any of the strawberries in growth on the 18 acres of the involved parcel. At the same time he entered the following order. We quote:
"IT IS ORDERED AND ADJUDGED that plaintiffs motion for preliminary injunction be, and the same hereby is, denied.
"HOWEVER, IT IS FURTHER ORDERED AND ADJUDGED that both plaintiff and defendant are entitled to harvest the approximate eighteen (18) acres of strawberries in the following manner:
"First, the defendant shall forthwith divide said eighteen (18) acres into two (2) parcels; Second, the plaintiff shall then have his choice of which one of the two (2) parcels he desires to harvest and once this selection is made plaintiff shall have the sole right to harvest the strawberries growing on the parcel he so chooses; Third, defendant shall have the sole right to harvest the strawberries growing on the remaining parcel; Finally, each party shall keep a full and complete accounting of all monies received and disbursed in connection with the harvesting of the strawberries on their respective parcels and each shall submit said accounting to the other party and to the court.”
The parties complied and each filed his accounting as ordered. Plaintiff filed written objections to defendant’s accounting. Defendant filed a reply thereto. Neither party sought an evidentiary hearing in connection with the accounting in the court below. Hence the right of neither one thereto is before us on appeal.
The trial judge thereupon proceeded to adjudication. He made a specific finding of fact that the alleged malicious destruction of the six acres of growing plants was not done by the defendant. The finding is not clearly erroneous and we are not free to disturb it. Jarosz v Caesar Realty, Inc, 53 Mich App 402; 220 NW2d 191 (1974). We have studied the opinion of the learned and experienced trial judge with extreme care. With his holding and his opinion we have no disagreement. The difficulty we face is that either by inadvertence or mathematical miscalculation, he did not do that which he expressly said he was going to do.
We have reworked the figures he used and applied his ratio decidendi thereto. We come up with the following anomalous result. What the trial judge did may be thus summarized:
Costs Plaintiff Defendant
Preparatory costs $ 7,757.89 $ 0
Harvesting & incidental costs after 5/21/73 11,751.89 8,785.95
Total costs $19,509.78 $ 8,785.95
Receipts
Income from harvest on each 9-acre plot $22,724.10 $11,958.25
Result $ 3,214.32 $ 3,172.30
Net profit Net profit
In calculating expenses versus receipts the judge allowed plaintiff to subtract only one half of his preparatory expenses, but at the same time defendant was required to pay nothing to plaintiff for these expenses.
If we read the court’s opinion in chief and his brief opinion on the motion for reconsideration we think the following computation is mathematically mandated.
PREPARATORY COSTS — $15,515.79—before the court order of May 21, 1973, should have been divided between the parties equally. Therefore:
Costs Plaintiff Defendant
Preparatory expenses $ 7,757.89 $ 7,757.89
Harvesting & incidental costs after 5/21/73 11,751.89 8,785.95
Total costs $19,509.78 $16,543.84
Receipts
Income from harvest on each 9-acre plot $22,724.10 $11,958.25
Result $ 3,214.32 $ 4,585.59
Net profit Net loss
We regret the necessity of remand. We suspect the trial judge may be somewhat disenchanted with the problems generated by the litigious brothers Falkner who were before him in a previous full blown trial in 1968. That case also ended up in this Court in 1970. See Falkner v Falkner, 24 Mich App 633; 180 NW2d 491 (1970).
We think the error, miscalculation or inadvertence, whatever it may be, is better reconsidered in the trial court with its facilities for taking further testimony if deemed necessary or possibly a revised accounting.
To the extent of his finding that defendant was not guilty of the claimed malicious destruction of the growing plants the trial judge is affirmed. As to the accounting aspect of the case the order denying the reconsideration is vacated and the case remanded for further proceedings. In this respect plaintiff has prevailed. Neither party having prevailed in full we award no costs.
On the question of whether and under what circumstances a cotenant must account for benefits derived from commonly held lands, see generally: Everts v Beach, 31 Mich 136; 18 AR 169 (1875); Wilmarth v Palmer, 34 Mich 347 (1876); Moreland v Strong, 115 Mich 211; 73 NW 140 (1897); Fenton v Miller, 116 Mich 45; 74 NW 384 (1898); Owings v Owings, 150 Mich 609; 114 NW 393 (1908); Nott v Gundick, 212 Mich 223; 180 NW 376 (1920); Zwergel v Zwergel, 224 Mich 31; 194 NW 505 (1923); Frenzel v Hayes, 242 Mich 631; 219 NW 740 (1928); Forler v Williams, 257 Mich 686; 241 NW 823 (1932); Walton v Walton, 287 Mich 557; 283 NW 687 (1939); Sullivan v Sullivan, 300 Mich 640; 2 NW2d 799 (1942); MCLA 554.138; MSA 26.1108. See also: 27 ALR 184; 51 ALR2d 388; 48 CJS, Joint Tenancy, § 9, p 932; 20 Am Jur 2d, Cotenancy and Joint Ownership, §§ 41-42, 46, pp 132-134, 137-138.
We also note a slight discrepancy between the defendant’s profit as stated in the defendant’s own accounting and as found in the trial court’s opinion. Defendant states that he derived a net profit of $3,172.30 from the crop. The trial judge noted defendant’s profit as being some $3,172.20.
The generally accepted rule seems to be that where a cotenant must account for rents, profits or the value of occupancy and use, he is entitled to a credit with respect to reasonable expenditures incurred incident to protection or maintenance of the property. See 20 Am Jur 2d, Cotenancy and Joint Ownership, § 52, p 142, citing inter alia Fenton v Miller, 116 Mich 45; 74 NW 384 (1898); Walton v Walton, 287 Mich 557; 283 NW 687 (1939). See also 51 ALR 2d 388, 464, and Moreland v Strong, 115 Mich 211; 73 NW 140 (1897). | [
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Bashara, J.
Defendant was convicted in a bench trial of violating the Michigan Weights and Measures Act, MCLA 290.631; MSA 12.1081(31), and was sentenced to one day in jail.
It is undisputed that on August 9, 1973, Mr. Ronald R. Reedy, a food inspector for the Michigan Department of Agriculture, the sole prosecution witness, entered a Wrigley Supermarket to test the weight of the contents of pre-packaged meat in the display case. He testified that of the 40 packages tested, 33 weighed less than the marked weight. He further testified that above the meat display there was a picture of the defendant which described him as the "meat manager” or the "mas ter butcher”. Mr. Reedy further testified that defendant greeted him when he entered the store; that defendant assisted him in checking the weights; that he had spoken to the defendant in the meat department on one or two prior occasions; and that defendant and the store manager were shown copies of the report. On cross-examination, Mr. Reedy testified he did not know defendant’s responsibilities as meat manager.
The record also disclosed that, along with defendant, Wrigley’s Supermarket was charged with the violation of the statute in question. At a separate proceeding, Wrigley’s pled guilty to the charge and was fined.
Defendant moved for a directed verdict of acquittal at the close of the people’s proofs, arguing that the prosecution had failed to establish a prima facie case. The motion was denied.
The issue dispositive of this appeal is whether the trial court erred in denying defendant’s motion for a directed verdict.
MCLA 290.631; MSA 12.1081(31), reads in pertinent part:
"Any person who, by himself or by his servant or agent, or as the servant or agent of another person, performs any of the acts enumerated in this section shall be guilty of a misdemeanor.
"(e) Sell, or offer or expose for sale, less than the quantity he represents of any commodity, thing or service.”
Our research discloses no reported Michigan decisions construing this statute. It is then incumbent upon us to analyze the acts which must be proven to uphold a conviction. Under the express terms of this statute, a defendant may be held responsible for selling or offering or exposing for sale short-weight meat if (1) he (defendant) did it by himself, or (2) if it was done by his (defendant’s) servant or agent, or (3) if the act was done by him (defendant) as an agent or servant of a principal.
The trial court, in considering a defendant’s motion for a directed verdict of acquittal or dismissal in a criminal case, must look at the people’s proofs and determine whether there is any evidence at all, either direct or circumstantial, on each material element of the offense. People v Wesley Brown, 35 Mich App 153; 192 NW2d 281 (1971). If there is no evidence at all on any of the elements, the motion must be granted.
A review of the transcript reveals that there was no evidence that the defendant did the short weighing himself, nor that it was done by his servant or agent. When defendant produced his defense, a defense witness, Mrs. Wrona, who was a former employee of Wrigley’s Supermarket, testified that she had inadvertently failed to properly adjust the pricing-labeling machine. She thus testified that it was by her neglect that the short weighing resulted. The defendant testified that although he had the responsibility for spot checking Mrs. Wrona’s work, he did not have the authority to hire or fire her. Since this case presents a motion for directed verdict, we decline to address the question of whether Mrs. Wrona was defendant’s servant or agent.
We are not unmindful of the sometime-stated rule that a reviewing court will affirm the denial of defendant’s motion for a directed verdict even though the prosecution has failed to produce any evidence on a crucial element of the offense, if the subsequent testimony of the defendant supplies the deficiency. People v Qualls, 9 Mich App 689; 158 NW2d 60 (1968); People v Garcia, 33 Mich App 598; 190 NW2d 347 (1971). Both Qualls and Garcia, supra, rely on People v Barlow, 134 Mich 394; 96 NW 482 (1903), as their authority for this rule. Upon examining the holding in Barlow, we find that the Court denied defendant’s motion for a directed verdict not for the reason stated in Qualls and Garcia, supra, but because the prosecutor had made out a prima facie case. The court simply held that defendant’s testimony only strengthened the people’s case.
We think the better rule is that if the people without the aid of defendant’s proofs do not establish some evidence on every element, a directed verdict for acquittal or a motion to dismiss must be granted if requested.
We, therefore, hold the trial court erred when it failed to grant a directed verdict in defendant’s favor.
We recognize, as did the trial court, the protection this statute was intended to afford the consuming public. We are in total agreement with the purpose of this statute and would urge its strict enforcement. However, when an individual stands to be convicted of a crime, the prosecution must be prepared to prove each and every element of the offense charged beyond a reasonable doubt. Failure to do so must result, upon proper motion, in a directed verdict or dismissal.
Reversed.
Although this testimony was admitted at trial without objection, it was clearly hearsay and would have been inadmissible had it been objected to.
We should note that where a trial is held without a jury, the proper motion at the conclusion of the people’s proofs is one for dismissal under GCR 1963, 504.2. Since no issue was made of this at trial, we shall consider defendant’s motion for directed verdict of acquittal as a motion to dismiss. | [
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Bronson, J.
The facts necessary to a proper resolution of this appeal are adequately stated in Judge O’Hara’s concurring opinion. We have chosen to follow a different approach than that adopted by Judge O’Hara.
The appeal board clearly found that because of a "combination of factors” — claimant’s mild hearing loss, his limited exposure to loud noise at work, and his apparent ability to engage successfully in everyday or telephone conversation — Eckman failed to establish an essential element of his claim: the causal connection between his hearing loss, whatever its degree, and his employment with Ex-Cell-O. The board concluded that Eckman failed to prove that his injury "arose out of and in the course of his employment”. There is ample support in the record for this finding and the decision to deny benefits is affirmed on that basis alone.
Whether the board determined in addition that Eckman failed to establish that his hearing loss was disabling is a question we need not consider here. If that question was indeed reached and considered by the board, it was unnecessarily, and perhaps incorrectly, decided. Unnecessarily, because the failure of Eckman to establish the required causal link between the injury and his employment eliminates any need for further inquiry. Incorrectly, because the board seemed to emphasize the extent of claimant’s hearing loss rather than the effect that hearing loss, however slight, had on his ability to obtain employment. The latter standard is the one properly applicable to cases of this type. Hutsko v Chrysler Corp, 381 Mich 99, 102; 158 NW2d 874 (1968).
The decision of the Workmen’s Compensation Appeal Board which affirmed the hearing referee’s determination that Eckman was not entitled to benefits is based on substantial, competent evidence. The board’s findings are accordingly conclusive, MCLA 418.861; MSA 17.237(861), and the decision based thereon is affirmed, for the reasons discussed above.
Affirmed.
Danhof, P. J., concurred. | [
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N. J. Kaufman, J.
Defendants, A. F. Smith & Son, Inc. (Smith) and Boone & Darr, Inc. (B&D), appeal from a decision of the Washtenaw County Circuit Court rendered April 18, 1978, which denied their right to recover on a payment bond furnished by plaintiff, John A. Hall Construction Company (Hall) and secured by United States Fidelity & Guaranty Co. (USF&G).
On March 19, 1971, Hall submitted its successful bid as general contractor for the construction of Ypsilanti Public High School. Pursuant to the terms of the construction contract, Hall provided a labor and material bond, with itself as principal and USF&G as surety. Hall then entered into a subcontract agreement with JS&J Construction Co. (JS&J) to supply the mechanical and electrical labor and materials.
JS&J was a wholly-owned subsidiary of Hall, John A. Hall being president of both corporations. JS&J entered into a contract with A. F. Smith & Son, Inc. (Smith) to supply electrical work for the project and into another contract with Boone & Darr, Inc. (B&D) for the mechanical portion of the contract. Performance was secured with bonds issued by Seaboard Surety Company for Smith and Fidelity & Casualty Company of New York for B& D. During the course of construction, invoices were rendered by Smith and B&D to JS&J and payments were made by JS&J.
In the latter stages of construction, disputes arose among the parties which resulted in the filing of suit by Hall and JS&J against Smith and B&D. Counterclaims were filed by defendants against Hall and JS&J. A third-party complaint was filed against USF&G seeking recovery on the bond secured by them.
On May 22, 1975, motions for summary judgments were filed by Hall and USF&G. Hall’s motion was based upon the absence of any contractual relationship between it and the defendants, founded on the allegation that Hall and JS&J were separate and distinct corporations. Hall also requested voluntary dismissal of its claims against defendants. Both requests were granted and an order dismissing Hall’s action was filed October 2, 1975. USF&G’s motion for summary judgment was denied by the same order. In its opinion, the lower court concluded that since defendants alleged adequate notice under MCL 129.207; MSA 5.2321(7), and USF&G failed to controvert this allegation, a question of fact remained, thus precluding summary judgment.
Trial commenced October 1, 1975, and, after extensive inquiry, the circuit court concluded that Hall directed and controlled the entire construction project and that JS&J was merely a "shell” corporation. Accordingly, on January 23, 1976, Hall Construction was reinstated as a party-plaintiff.
Further proofs were submitted and Hall filed a motion for reconsideration of the court’s order for reinstatement. This motion was granted and, on May 31, 1977, Hall was again dismissed as a party to the action.
On August 22, 1977, USF&G moved for dismissal or judgment in its favor on the ground that defendants had failed to establish compliance with MCL 129.207; MSA 5.2321(7). In an opinion rendered eight months later, the court found JS&J’s claims against defendants to be without merit, except for a $2,614.41 claim against B&D. The court held that defendants were entitled to judgment on their counterclaims against JS&J for $155,573.36 (B&D) and $72,957.32 (Smith). The court found that the absence of a direct contractual relationship between defendants and Hall and the fact that Hall and JS&J were separate and individual corporations precluded defendants’ recovery against Hall. The court further held that defendants’ failure to comply with MCL 129.207; MSA 5.2321(7) foreclosed defendants’ suit against USF&G, and that action was, therefore, dismissed. Defendants appeal from the circuit court’s decision denying their right to recover on the payment bond furnished by Hall and secured by USF&G.
Defendants raise three issues, two of which have been properly preserved for appeal. Defendants first contend that they established a "direct contractual relationship” between themselves and Hall which would allow recovery on the payment bond.
The focus of this controversy is the language of MCL 129.207; MSA 5.2321(7). This section entitles a "claimant” who has furnished labor or material in the performance of the contract to sue "on the payment bond for the amount, or balance thereof, unpaid at the time of the institution of the civil action”. Crucial to the present controversy, however, is that language of the section which reads in pertinent part:
"Sec. 7 * * * A claimant not having a direct contractual relationship with the principal contractor shall not have a right of action upon the payment bond unless (a) he has within 30 days after furnishing the first of such material or performing the first of such labor, served on the principal contractor a written notice, which shall inform the principal of the nature of the materials being furnished or to be furnished, or labor performed or to be performed and identifying the party contracting for such labor or materials and the site for the performance of such labor or the delivery of such materials, and (b) he has given written notice to the principal contractor and the governmental unit involved within 90 days from the date on which the claimant performed the last of the labor or furnished or supplied the last of the material for which the claim is made * * *. Each notice shall be served by mailing the same by certified mail * * *.”
Defendants’ first issue centers on that portion of the statute requiring a "direct contractual relationship with the principal contractor”. The question is whether the defendants established a "direct contractual relationship” with Hall and are thereby entitled to the protection afforded by the statute.
In support of their position, defendants point to the intricate relationship between Hall and JS&J, noting that JS&J is a wholly-owned subsidiary of Hall, John Hall was the sole shareholder of Hall and was the president of both corporations. The corporations had the same vice-president and identical boards of directors.
Additionally, defendants assert that the alleged JS&J representatives who were running the operation of the project were not from JS&J, but were from Hall. There was no performance or payment bond secured from JS&J by Hall.
It is clear to this Court that the proofs reveal two separate corporate entities controlled by one individual who had established adequate safeguards to shield the parent corporation but had secured no protection for parties dealing with the "shell” corporation. Although defendants admit to having only express contractual ties with the "shell” corporation, they claim that the owner and president of the parent corporation functioned in a dual capacity such that the two corporations should be regarded as one.
Guidance in interpreting the phrase, "direct contractual relationship” is provided by judicial interpretation of the Federal counterpart of the Michigan notice statute. The Miller Act, 40 USC 270a et seq., provides a scheme similar to that set forth in MCL 129.201 et seq.; MSA 5.2321(1) et seq. Like § 7 of the Michigan statute, 40 USC 270b sets forth the notice requirements for recovery on the payment bond, providing:
"That any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made * *•
In interpreting the foregoing statute, the Fifth Circuit Court of Appeals found a sufficient contractual relationship to allow recovery on the bond in a situation somewhat analogous to the case at bar. In National Surety Corp v United States, 378 F2d 294 (CA 5, 1967), an individual who controlled the general contracting corporation caused that corporation to assign the contract to another company also controlled by him. In concluding that a materialman who dealt solely with the assignee had a direct contractual relationship with the general contractor, the court stated:
"After a careful review of the record, we are convinced there is ample evidence to support the findings and the judgment of the district court. There are several reasons why International should be considered the same entity as Construction and thus a prime contractor, rather than a subcontractor, with regard to the application of the notice provision. First of all, Uhlhorn himself caused Construction to assign the FAA contract to International; this assignment, although made without the knowledge or consent of Surety, squarely placed International in the position of prime contractor. Furthermore, some applications for permits to import equipment or materials without duty purported that International was the general contractor. Moreover, various contracts with subcontractors executed by Uhlhorn refer to International as the 'general contractor’. Finally, stationery of both Construction and International was used interchangeably to make purchase orders with the name of one company blotted out and the name of the other substituted.” 378 F2d 294, 295-296.
While the fact situation in the instant case is distinguishable from National Surety Corp, supra, this Court concludes that, given the manner in which the subject corporation functioned, the same rationale should apply. The court’s conclusion that “William B. Uhlhorn operated in the form of Construction or International whenever it suited him” corresponds to our conclusion in this action that John Hall was personally running the entire operation, either as Hall Construction or as JS&J.
Hall and JS&J began this action as joint-plaintiffs, with Hall alleging a right of recovery based on its status as a third-party beneficiary to the contracts between defendants and JS&J. This right to recover was on claimed backcharges which, according to testimony of John Hall, had not been billed to Smith or B&D prior to the institution of this suit. In contrast, the contract balances claimed by defendants Smith and B&D were balances invoiced long before initiation of suit. The similarity between the backcharges and the claimed contract balances of B&D and Smith are evident:
CONTRACT BALANCES DUE CLAIMED BACKCHARGES Hall — JS&J
B&D $155,187.77 $140,623.76
Smith 72,957.52 70.540.54
$228,145.29 $211,164.30
Subsequently, in his dual capacity as president of both corporations, John Hall executed an agreement, which was admitted into evidence at trial, whereby backcharges of $215,937.01 were accepted by JS&J and whereby JS&J released Hall from any further liability for claims by JS&J which might arise in connection with the Ypsilanti High School construction project. After this agreement was reached and Hall was subjected to counterclaims of defendants for unpaid contract balances, Hall moved to remove itself from the case and to voluntarily dismiss its plaintiff’s complaint.
A final point which leads this Court to conclude that JS&J and Hall were one entity for purposes of the bonding statute is the absence of any payment bond between the two firms. While Hall was required by the Ypsilanti School Board to provide a payment and performance bond, no similar action was compelled as to JS&J. Although defendants knew of the separate corporate status of JS &J, their trial testimony indicated that reliance was placed upon the presence of John Hall as the controlling force behind both corporations.
The control exercised by John Hall over the two corporations, the unique backcharge arrangement instituted by Hall in his dual capacity, and the absence of a payment bond by JS&J to protect defendants mandates our conclusion that for the purposes of the bonding statute defendants had a direct contractual relationship with the general contractor, Hall. Therefore, the statute notice provisions were not applicable and defendants are entitled to collect against the payment bond.
As the second issue on appeal, defendants argue that "substantial compliance” with the notice requirements of MCL 129.207; MSA 5.2321(7) affords the subcontractor the right to proceed against the bonding company.
MCL 129.207; MSA 5.2321(7) requires that notices be sent to the principal contractor and the governmental unit, infra. Plaintiffs correctly argue on appeal that the statute requires a minimum of three notices: two notices to the principal contractor and one to the governmental unit. While the notices were not sent by certified mail, defendants established that Hall had actual knowledge of the nature of materials being furnished and labor to be performed by defendants. Arguably then, the 30-day notice requirement was satisfied by defen dants. The record indicates that defendants had supplied labor or materials or both through mid-August of 1973. On November 14, 1973, John Hall caused a letter to be sent to the project architect indicating the existence of litigation between defendants and plaintiffs. Defendants assert that this notice satisfied the 90-day requirement set forth in the statute. Plaintiffs do not contest the timeliness of the notice but argue that the governmental unit was not adequately informed. The facts disclose that defendants did not conform to the letter of the law set forth in MCL 129.207; MSA 5.2321(7) in providing notice. The question becomes whether their attempted compliance satisfies the statutory requirements.
The outcome of the foregoing question is controlled by Charles W Anderson Co v Argonaut Ins Co, 62 Mich App 650; 233 NW2d 691 (1975), lv den 395 Mich 815 (1975). In a split decision, this Court held that where a party fails to comply with either notice requirement of the statute, that party "shall not have a right of action upon the payment bond”. 62 Mich App 650, 654. The Court concluded that "such explicit language leaves very little room for judicial construction”. Id. In so holding, the plaintiffs’ "substantial compliance” argument was dismissed by the Court. In a strong dissent, Judge Brennan argued that the majority’s reliance on cases interpreting an entirely different statute was misplaced. Accordingly, he claimed the strict construction rationale of those decisions was inapplicable, given the most recent legislative mandate. Defendants place great weight upon Judge Brennan’s analysis. This Court is not convinced that the dissenting position is correct. The statutory mandate compels specific notice within a certain time period. However, the rigid application of the 90-day notice requirement works no injustice in the case at bar since defendants are entitled to recover on the basis of a direct contractual relationship with the principal contractor.
Finally, defendants argue that the notice requirements of MCL 129.207; MSA 5.2321(7) may be waived by an alteration of the principal contract. Review of the record and of the lower court’s opinion indicates that this issue was not addressed in the proceedings below. While it is recognized that a surety may obligate itself by bond terms more restrictive than the statute, see Hub Electric Co, Inc v Gust Construction Co, Inc, 585 F2d 183 (CA 6, 1978), this Court concludes that review of this issue is not here appropriate. "The function of an appellate court is restricted to the test of questions which, in the court below, have been raised and saved for review.” Oakland County v Detroit, 81 Mich App 308, 313; 265 NW2d 130 (1978), lv den 403 Mich 810 (1978). Again, however, we note that since there existed a direct contractual relationship between defendants and the general contractor, Hall, our resolution of this issue would not affect our disposition of this case.
Reversed and remanded for proceedings in conformity with this opinion. | [
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N. J. Kaufman, P.J.
On September 4, 1979, an order of summary judgment was entered in Wayne County Circuit Court against cross-plaintiffs, the claimed beneficiaries of a trust fund agreement, GCR 1963, 117.2(1). At the same time, a motion was granted awarding attorney fees to the attorney who was appointed by the court to represent these claimed beneficiaries. It is from the granting of both these motions that cross-defendants now appeal.
The controversy surrounding the claimed error in the grant of summary judgment concerns a pension plan that was instituted by cross-defendant Criminal Justice Institute, hereinafter referred to as CJ. Bank of the Commonwealth was named trustee of the pension plan assets which were to be held in trust for the benefit of certain CJ employees. The language of the plan specifically provided that no rights would vest in the plan until covered employees had completed five continuous years of service. CJ also retained the right to revoke or amend the trust pursuant to the provisions of the pension plan agreement. When CJ terminated, no employee had performed five continuous years of service.
We find no merit in cross-plaintiffs’ claim that provisions of § 401(a) of the Internal Revenue Code, requiring distribution, were incorporated by reference into the Pension Plan. Although CJ expressed an intent that the plan constitute a qualified plan under the provisions of the Internal Revenue Code, we find that Code provisions cannot be incorporated into the plan in order to circumvent the clear and unambiguous language contained therein. We also find no merit in cross-plaintiffs’ claims of unjust enrichment. Since the language of the pension plan provided that no rights would vest until after five continuous years of service, and as cross-plaintiffs do not allege that any of the beneficiaries of the trust performed such required service, cross-defendants will not be unjustly enriched if the pension plan funds are distributed in accordance with the terms of the plan.
The Michigan courts have consistently treated pension plan agreements as contracts to which general contract principles apply. Borngesser v United Dairy Workers Pension Fund Committee, 375 Mich 697; 135 NW2d 381 (1965), George v Waber, 343 Mich 218; 72 NW2d 121 (1955), Green v Copco Steel & Engineering Co, 22 Mich App 16; 176 NW2d 690 (1970).
In Cotter v Blue Cross & Blue Shield of Michigan, 94 Mich App 129; 288 NW2d 594 (1979), the Court set forth the following standard for testing the sufficiency of a motion for summary judgment brought under GCR 1963, 117.2(1) when the case is based upon an underlying contract:
"GCR 1963, 117.2(1) states that the movant is entitled to summary judgment in his favor when the opposing party has failed to state a claim upon which relief can be granted. A motion based on GCR 1963, 117.2(1) challenges the legal sufficiency of a plaintiffs complaint and is to be considered by an examination of the pleadings alone. It is the duty of the reviewing court to accept as true the well-pleaded facts in the plaintiffs complaint and determine whether those claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Koenig v Van Reken, 89 Mich App 102, 104; 279 NW2d 590 (1979). In a case based upon contract, as here, the court may examine the contract in conjunction with the motion for summary judgment. Soloman v Western Hills Development Co, 88 Mich App 254, 256; 276 NW2d 577 (1979).” Cotter v Blue Cross & Blue Shield of Michigan, supra, 135-136.
In their motion for summary judgment, cross-defendants argued that as it was undisputed that none of the counter-plaintiffs had performed five years of continuous service, none of the beneficia ries of the trust had asserted a claim upon which relief could be granted.
It is a general principle of contract law that where the provisions of a contract are clear and unambiguous, the contract language is to be construed according to its plain sense and meaning. New Amsterdam Casualty Co v Sokolowski, 374 Mich 340; 132 NW2d 66 (1965).
Cross-plaintiffs call upon the aid of equity to determine their rights in the assets of the fund. However, in Green v Copco Steel, supra, the Court unequivocally stated that equity has no power to contravene the clear and unambiguous provisions of a pension plan agreement.
Because we agree that the contract in the case before us was likewise clear upon its face and further agree that cross-defendants were not unjustly enriched when the fund was retained by them, we affirm the circuit court’s grant of summary judgment.
The second issue raised on appeal, the grant of attorney’s fees to the cross-plaintiffs’ attorney, creates greater difficulties. A brief explanation of said attorney’s entry into the case in issue is appropriate here. Cross-plaintiffs’ attorney did not represent any of the parties to this litigation prior to being ordered to do so. By court order, he became the representative of the known and unknown beneficiaries of the trust fund and the past and present employees of CJ.
As a general rule, attorney fees may not be awarded as costs unless authorized by statute or court rule. GRP, Ltd v United States Aviation Underwriters, Inc, 70 Mich App 671, 680; 247 NW2d 583 (1976). However, Michigan courts have recognized certain exceptions to this general rule. In Merkel v Long, 375 Mich 214; 134 NW2d 179 (1965), the Court declared that equity has inherent power to require payment of attorney fees from a trust where the result is beneficial to the trust (dicta). The trial judge’s action in appointing an attorney for cross-plaintiffs and awarding fees to him may be likened to an appointment of an attorney to aid in the interpretation of such trust so that the distribution of the assets can be properly determined. MCL 555.63(c)(2); MSA 26.79(13)(c)(2) provides for expenses incurred in maintaining or defending any action to construe the trust, or protect it or the property or assure the title of any trust property. While we realize that this language generally applies to attorney fees for the attorney representing the trustee, we also note that the nature of our legal system is adversarial, and that the award of fees to an attorney representing those wishing to construe a trust to include them is not wholly inappropriate. With two parties, each claiming an interest in a corpus in the nature of a trust, we feel that an adversarial proceeding was the best way to allow the court to view both sides. The appointment of the attorney and the award of fees in this situation was a method of arriving at the proper construction of the trust.
A recent Federal case, United Operating Co v Karnes, 482 F Supp 1029 (SD NY, 1980), is somewhat on point in this matter. There plaintiff brought a derivative action against corporate directors for giving discounts in order to obtain business. Eventually plaintiff’s counsel came to the conclusion that it would not be in the best interest of the corporation and its shareholders to continue the action, and its dismissal was approved. There was, however, vigorous disapproval concerning the payment of any fee to plaintiffs counsel. The propriety of the requested fee was the only issue remaining in this case. There, the court stated the issue as being addressed to the discretion of the court in the exercise of its equitable powers. Plaintiffs counsel maintained that the corporation had received substantial benefit as a result of the litigation in rectifying its accounting procedures and controlling illegal discounts. The court stated:
"While this is undoubtedly of some benefit to the company and its shareholders, however, in light of the realities of the market place, it cannot be said to be an income producing one. Indeed, the major benefit to the company is the termination of this expensive and time-consuming litigation.” Id., 1031.
Plaintiffs counsel was awarded fees and costs, such as the court deemed reasonable.
In the case before us, the trustee bank commenced litigation by filing an interpleader suit. The past and present employees were made defendants in that suit. Upon the motion of trustee bank and without objection by any defendant, an attorney was appointed by the court to represent past and present employees as well as unknown beneficiaries of the trust fund. The lower court adjudicated their rights and brought the litigation to a close. At the end of the proceedings, said attorney took the stand and testified to the amount of work he had done. He was cross-examined by opposing counsel. His requested fees were found by the court to be reasonable.
Trustee bank, having requested the court appointment of a legal representative for defendant beneficiaries, and defendant governmental bodies, by not opposing such appointment, under circumstances where the compensation of such legal counsel for the funds under court control reasonably should have been expected, should not now be permitted to oppose court approval of reasonable attorney fees for appointed counsel from such funds.
We believe that the attorney in question relied upon the powers of the court in ordering his appointment. We further believe that he fulfilled his duties in adequately representing cross-plaintiffs to aid these litigants, but also in the reasonable expectation of being remunerated for his services. This Court is accustomed to balancing equitable and statutory rights. See Michigan Republican State Central Committee v Secretary of State, 408 Mich 931, 932; 292 NW2d 134 (1980) (Coleman, C.J.).
On balance, here, we believe that principles of equity must prevail over strict statutory interpretation. We, therefore, find that fairness demands our upholding the award of attorney fees as being within the discretion of the trial court.
Affirmed. No costs, neither side having prevailed in full.
We note that the appointment of an attorney to represent those claiming to be trust beneficiaries was first requested by trustee, Bank of the Commonwealth. It is, thus, even more clear that such appointment was for the purpose of properly construing the trust and could, therefore, easily fall within the provisions of MCL 555.63(c)(2); MSA 26.79(13)(c)(2). | [
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Per Curiam.
On February 1, 1980, defendant was convicted by a jury of murder in the commission of a larceny, MCL 750.316; MSA 28.548, felony murder. Defendant was sentenced to life imprisonment and the court recommended that defendant never be released.
The decedent in this case was beaten to death in her home with a hammer on March 27, 1979. That morning she had driven her family’s new automobile to a dealership for service repairs. A manager at the dealership had assigned defendant to drive decedent home as the decedent’s automobile was in need of major repairs.
The prosecutor’s case was that defendant sought a sexual encounter with decedent and was rebuffed. He then stole items from her purse and repeatedly struck her with a hammer, resulting in her death. Defendant’s rendition of the facts in this case, based on a statement he sought to suppress, was that decedent was the sexual aggressor, that, after verbally abusing defendant, decedent picked up the hammer and started toward defendant, and that then, in self-defense, he took the hammer away from her and struck her several times. Defendant in his statement further indicated that afterward, he went into another room and picked up decedent’s purse and emptied it without taking anything.
The first issue is whether the pretrial statement of defendant is inadmissible as substantive evidence because there was no cessation of interrogation by the police after the defendant requested to speak with his attorney. The statement defendant sought to suppress indicated that he had acted in self-defense. Defendant does not claim he was not given his rights under Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). Instead, he contends that once he asserted his right to counsel any interrogation should have ceased until his attorney was present.
The police officers testified at the Walker hearing that they called defense counsel’s office three times but were unable to contact counsel. The officers informed defendant that counsel was not immediately available. During this period, defendant telephoned and spoke with his family. The police testified that defendant volunteered the statement in issue because he wanted to "get if off his chest”. At the Walker hearing, defendant testified that, after he requested to speak to his counsel, the police continued to interrogate and threaten him. After hearing the testimony and reviewing the case law, the court concluded that the defendant knowingly waived his right to counsel and freely chose to make a statement to the police._
The trial court’s ruling following a Walker hearing will only be reversed if this Court possesses a definite and firm conviction that a mistake was committed. People v McGillen #1, 392 Mich 251, 257; 220 NW2d 677 (1974). In determining whether a mistake has been made, this Court reviews the entire record and makes an independent determination. Id.
Defendant casts this case as one where there was repeated interrogation after he asserted his right to counsel. The prosecutor argues the case as one where defendant initiated the conversation after the interrogation had ceased. Once the accused indicates that he wishes to remain silent and speak to his attorney, the interrogation must cease. Miranda, 474.
Defendant cites Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed 2d 378 (1981), which involved continued interrogation after the accused asserted his right to counsel. The Court wrote that the waiver of that right "must not only be voluntary, but constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege”. Edwards, supra, p 482. The trial court in this case did not commit the error of the Edwards trial court, as here the court focused on whether defendant knowingly and intelligently relinquished his right to counsel. Id.
In People v Parker, 84 Mich App 447, 453; 269 NW2d 635 (1978), a panel of this Court concluded that a person can waive his right to counsel, subsequent to invoking it, without an attorney. The burden of showing a knowing and intelligent waiver is upon the prosecution. Id.
Our review of the record leads us to conclude that defendant did indeed knowingly and intelligently waive his right to counsel. We also conclude that defendant was not interrogated after he asserted his right to counsel but that he initiated the inculpatory conversation. See Edwards, supra, p 484. Therefore, the trial court’s failure to suppress the confession was not reversible error.
The defendant also argues that the trial court erred in refusing to give instructions on manslaughter and duress. He avers that a voluntary manslaughter instruction should have been given as the inculpatory statement demonstrated he only killed the victim to keep her from killing him. Defendant contends that, since she attacked him first, there was sufficient provocation to support a manslaughter charge. The inculpatory statement supposedly also supports an instruction regarding duress which could be the basis for the manslaughter charge.
It should be noted that defense counsel did not argue self-defense, which would be a basis for a manslaughter charge, in this case. Instead, counsel attacked the credibility of the inculpatory statement to show it was a total fabrication by defendant to get him out of a "jam”.
Counsel argued that the inculpatory statement indicated that defendant acted out of duress and requested that an instruction be given as to duress. The court correctly denied the request. It was then argued that because of duress, a manslaughter instruction should be given. The trial court concluded the duress theory was not applicable in this case and neither instruction was given.
The court is required to instruct on all requested lesser included offenses which are supported by the evidence. People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975), People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975). The question of when does the evidence support an instruction and conviction of the lesser offense was subject' to lengthy discussion in Chamblis. The Court stated:
"In determining whether the instruction should be given, the trial court should consider whether, if the defendant had been originally charged only on the lesser offense, the evidence adduced at trial would have supported a guilty verdict on that charge. If it would have, the requested instruction must be given.” Id., 423.
To know whether the evidence is sufficient to support a voluntary manslaughter verdict, that crime must be defined. "Voluntary manslaughter is the killing of another intentionally, but in sudden heat of passion, due to adequate provocation, but without malice.” 3 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1658, p 692. The only evidence in this case to support the manslaughter charge was defendant’s statement. We conclude that if manslaughter was the only crime charged, there was sufficient evidence to convict him of it. Therefore, the court reversibly erred in not instructing on manslaughter as requested.
This result is reached while realizing defendant repudiated the theory of self-defense and argued that the statement was fabricated. Our criminal justice system begins with the presumption that a person is innocent until proven guilty and allows an accused to argue inconsistent alternatives. Defendant’s posture is permissible and he should not be penalized because of it. It is the jury’s province to choose among the competing theories and evidence; the court’s duty is to fully and properly instruct the jury. The prosecutor would have this Court focus on defendant’s theory of the case to determine if the instruction should have been given, but this would be incorrect. The focus is on the evidence presented. Chamblis, supra.
The jury was instructed on first-degree murder and first-degree felony murder, both of which carry maximum sentences of life imprisonment. MCL 750.316; MSA 28.548. The jury should have had the manslaughter instruction before them. It cannot be predicted what the jury would have concluded had they been so instructed and each side given an opportunity to argue the manslaughter aspects of this case. As the Court stated in People v Vaughn, 409 Mich 463, 466; 295 NW2d 354 (1980):
"Juries are not held to any rules of logic * * *. The ability to convict or acquit another individual of a crime is a grave responsibility and an awesome power. An element of this power is the jury’s capacity for leniency.”.
The remaining issues defendant raises need not be addressed. However, in passing, defendant also argues the felony-murder conviction was improper because the evidence, at best, only showed he stole something from the victim’s purse after the murder. We do not address this issue but note the prosecutor must bring forth some evidence from which the trier of fact can conclude the murder occurred in the perpetration or attempt to perpetrate one of the specified felonies. MCL 750.316; MSA 28.548.
Reversed and remanded.
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
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Per Curiam.
Plaintiff, Helen V. Smillie, appeals of right from the October 26, 1979, judgment of no cause of action entered by the trial judge after a bench trial was held in the within case.
Plaintiff is the beneficiary under a group life insurance policy on her late husband, Charles M. Smillie II. Defendant insurer has paid plaintiff $60,000 in benefits based upon Plan V of this group life insurance policy and this sum is not in controversy. Rather, the present lawsuit seeks to compel defendant to pay plaintiff $40,000 increased coverage on decedent. Defendant contends that the insurance plan (Plan 100), which would have been the basis for the increased benefits, never went into effect as to decedent.
This Court has recently addressed the rules of construction to be applied to insurance contracts:
"Insurance policies must be construed in accord with the ordinary and popular sense of the language used therein. Michigan Mutual Liability Co v Mesner, 2 Mich App 350, 353; 139 NW2d 913 (1966). Insurance policies drafted by the insurer must also be construed in favor of the insured to uphold coverage. Shepard Marine Construction Co v Maryland Casualty Co, 73 Mich App 62, 64; 250 NW2d 541 (1976). This same rule applies to exclusion provisions in the policy. Kalamazoo Aviation, Inc v Royal Globe Ins Co, 70 Mich App 267, 270; 245 NW2d 754 (1976). To be given full effect, an insurer has a duty to clearly express the limitations in its policy. Francis v Scheper, 326 Mich 441, 447-448; 40 NW2d 214 (1949), Union Investment Co v Fidelity & Deposit Co of Maryland, 549 F2d 1107, 1110 (CA 6, 1977), and Ornamental Iron & Stair Co v General Accident & Life Assurance Corp, Ltd, 68 Mich App 259, 263; 242 NW2d 544 (1976). A technical construction of policy language which would defeat a reasonable expectation of coverage is not favored. Crowell v Federal Life & Casualty Co, 397 Mich 614, 623; 247 NW2d 503 (1976).” State Farm Mutual Automobile Ins Co v Ruuska, 90 Mich App 767, 777-778; 282 NW2d 472 (1979), lv gtd 407 Mich 948 (1979).
Additionally, in Foremost Life Ins Co v Waters, 88 Mich App 599, 604; 278 NW2d 688 (1979), this Court stated:
"Any ambiguities are liberally construed in favor of the insured. Kalamazoo Aviation, Inc v Royal Globe Ins Co, 70 Mich App 267; 245 NW2d 754 (1976), lv den 399 Mich 871 (1977). The court’s duty is to ascertain the meaning which the insured would reasonably expect. Zurich Ins Co v Rombough, 384 Mich 228, 233; 180 NW2d 775 (1970).”
The trial court held controlling the following clause, contained in a rider to the master policy:
"Each eligible Employee is to be insured, subject to the provisions of subparagraph (2) below:
* * *
«II * * *
"(a)
provided that no Employee who is not actively at work performing all of the duties of his employment with the Employer at his customary place of employment on the date his insurance is to become effective shall be insured until he returns to active work and the performance of all such duties.”
We agree. See MCL 500.4434; MSA 24.14434, Germain v Aetna Life Ins Co, 285 Mich 318; 280 NW 773 (1938). But see, Freeman v Massachusetts Mutual Life Ins Co, 27 Mich App 572; 183 NW2d 832 (1970).
Thus, to be covered by the increase in coverage offered by Plan 100, decedent had to meet two specific requirements set out in the paragraph quoted above. He had to be: (1) "actively at work performing all of the duties of his employment”; and (2) performing his work "at his customary place of employment”.
The parties did not cite, nor could we locate, any Michigan cases interpreting similar language in an insurance contract.
However, the Wisconsin Supreme Court in Rabinovitz v Travelers Ins Co, 11 Wis 2d 545; 105 NW2d 807 (1960), interpreted almost identical language in a similar factual situation to deny coverage to an employee under a group life insurance policy.
The group life policy in Rabinovitz provided that no employee who was not actively at work at his customary place of employment on the date his coverage was to become effective would be insured until he returned to active work. The group policy in question became effective as of March 1, 1958, and the particular employee was confined to a hospital from February 21, 1958, until April 1, 1958, when he died. Under these facts, the Wisconsin Supreme Court held that there was no coverage for the particular employee (whose job consisted of contacting buyers and sellers and supervising others) even though he was not required to do all his work at any particular place and may have performed his duties while in the hospital. In reaching this conclusion, the Wisconsin Supreme Court stated:
"The clause in this group life insurance policy requiring an employee to be actively at work performing all of the duties of his employment at his customary place of employment in order for the insurance to be in effect as to such employee is a condition of the policy because no medical examination was required. The purpose of the clause is to provide a test to determine the reasonably good health of an employee and to exclude an employee in such a poor state of health that he cannot fully perform all his duties at his customary place of employment on the date the policy is to become effective as to him. This is a reasonable requirement. Among the duties of this employee were contacting sellers and buyers and supervising and advising other employees. It is stated that the employee was not required to perform any specific duties and he performed all his duties while in the hospital. Accepting this as true on the motion, the actual claim of the plaintiff is that the employee had no customary place of employment or that place was wherever he happened to be at the moment — in this case, in a hospital. He happened to be there, not because required by his employment or because it was advantageous to his employer, but because of his state of ill-health. To construe the words of the contract to mean that this employee’s customary place of employment was in the hospital, or wherever he happened to be at any given moment, would render the clause in the policy meaningless.” 11 Wis 2d 545, 552-553.
We agree with the Rabinovitz analysis and hold that plaintiff is not entitled to the increased benefits; Plan 100 never became effective as to decedent because he was confined to a hospital in Florida from May 20, 1977, until his death on June 4, 1977, and the effective date of the increased coverage was June 1, 1977.
On appeal, plaintiff urges that resolution of the instant case turns on the construction given to the phrase "actively at work” as it is used in the certificates, booklets and renewal forms accompanying the policy. However, even if arguendo we accept plaintiff’s argument that the phrase "actively at work” is the only limitation to effective coverage, plaintiff would still not be successful. This is because the trial court specifically found that decedent was not "actively at work” on or after June 1, 1977. Since this finding of fact by the trial court was not clearly erroneous, it must be upheld. GCR 1963, 517.1. See also Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976). Finally, plaintiff also makes reference to another portion of the master policy which delineates employees eligible to be insured and maintains that that clause is in conflict with the clause dealing with when coverage becomes "effective”. We find this argument to be without merit since the two clauses plaintiff argues are in conflict address two separate subjects and do not create an ambiguity concerning the effective date.
Affirmed.
Bronson, P.J., concurs in the result only. | [
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J. H. Gillis, P.J.
Defendants appeal as of right the Gogebic County Circuit Court’s September 5, 1979, order granting a writ of mandamus. The writ ordered defendants to transfer and return to the Gogebic County Clerk all books, records and accounts taken from the clerk’s office by defendant controller. Defendant board of commissioners was also ordered to return to the clerk all duties required of him by law, and provide sufficient funding for equipment, supplies, and staff. Defendants also appeal the circuit court’s September 7, 1979, order appointing a special prosecuting attorney to represent plaintiff, retroactive to the date the suit was filed.
The findings of fact as stated by the circuit court are adopted in pertinent part as follows:
"Plaintiff Melvin R. Peterson is the County Clerk of Gogebic County, a constitutionally created office, and as clerk he is vested with certain powers, duties, and responsibilities as prescribed by various statutes enacted by the Michigan Legislature.
"Defendant Board of Commissioners is the supervisory board of Gogebic County with duties and powers defined by the Michigan Constitution 1963, Article 7, and by the provisions of Michigan Statutes, particularly Public Act 1851, No. 156, as amended. (MSA 5.321 et seq.)
"Defendant Rick Minkin is employed as County Controller, whose powers and duties are defined by the provisions of MCL 46.13(b), as amended, MSA 5.336(13b) [sic],
"Plaintifs predecessor in office as Gogebic County Clerk was George P. Hakala, and Charles Londo preceded Rick Minkin was County Controller.
"The records and proceedings of the Board of Commissioners show that Richard A. Sofio, vice chairman and member of the Court House Jail and Grounds Committee, proposed establishing [the] office [of controller], The resolution * * * contained a description of the duties of such controller, and it was approved by such committee. Thereafter, on April 24, 1974, the Finance and Budget Committee approved that the County Board advertise for applications to this position. * * * on July 30, 1974, at a meeting of the Finance and Budget Committee, Charles A. Londo was employed [as controller]. * * *
"Apparently the only official action by the full Board in the creation of the office and selection of the controller concerned the authorization of an annual salary * * * for the controller.
"The minutes of the Board of Commissioners do not show any authorization given or approval made as to the actions of the Court House Jail and Grounds Committee or the Finance and Budget Committee. Hence all actions involving the creation of the office of controller were taken by sub-committees, and the full board has never approved such actions.
"The County Finance Budget and Auditing Committee acts only in an advisory capacity similar to other committees of the board. * * *
"Plaintiff’s predecessor, George P. Hakala, by oral and written communication objected to the creation of the position of county controller, as well as the removal of books, records, and accounts from his office.
"Controller Charles Londo wrote all department heads: 'Effective Monday, September 30, 1974, all pay checks will be issued by this office. This is a change from the past procedure whereby the pay checks have been delivered to the departments by the county clerk. No exceptions will be made to this policy, except for extenuating circumstances.’
"Charles Londo, by letter dated April 17, 1975, directed to Richard Sofio, chairman of the Gogebic County Board of Commissioners, requested that certain functions and duties maintained by the county clerk be transferred to his office. These included general fund cost classification records, payroll records, files of paid vouchers, [and] supply of blank checks, and further requested such transfer be completed by May 1, 1975.
"The testimony further indicates the position of bookkeeper was transferred from the county clerk’s office to the controller’s office, along with the transfer of various books, records, and accounts from the clerk’s office. The removal of such materials was done without the approval of the county clerk or a court order.
"The controller petitioned the full board for a bookkeeper and advised the board of his accounting system. The controller received approval April 23, 1975.
"The controller and his office employees are not appointed as deputy county clerks.
"Plaintiff has demanded the return of such records, and the controller and members of the board of commissioners have refused such demand.
"The payroll warrants and payroll checks of county officers and deputies were issued upon warrants and payroll checks signed only by the controller during the period of employment of Controller Londo, and during a portion of the employment of Controller Minkin, and such warrants and payroll checks are presently signed by Controller Minkin and the Gogebic County Treasurer.
"No resolutions have been passed by the Defendant Board of Commissioners authorizing the signing of a bank signature card or other device permitting the controller to sign warrants or checks. Lacking such authorization the controller has executed a bank signature card authorizing him to sign checks drawn on Gogebic County.
"The method of accounting by the controller provides that the claims and accounts shall be maintained in a series of books. Claims are forwarded directly to the controller’s office by claimants. These claims are placed in a clipboard in chronological order of receipt and entered in the claims and accounts ledger. The clipboard and ledger are submitted to the Finance and Budget Committee meetings. A member of the committee initials the original claims and another member checks each claim that is allowed in the claims and accounts ledger. Approval or disapproval is also noted in the ledger.
"Thereafter, the claims and accounts ledger and the list of claims and accounts * * * are forwarded to the clerk’s office. This is done at a period which exceeds the present four-day requirement under Act 629 of 1978. The clerk then prepares the agenda for the full county board meeting, which is based upon the claims and accounts ledger, and lists them as received by him from the committee. The agenda is then supplied to the board members prior to the meeting.
"After the books are returned to the controller prior to the board meeting, the controller prepares the warrant for the board’s signature, along with the cash control forms. The warrants are then furnished to the clerk and to the treasurer for their signatures and returned to the controller’s office. At the regular board meeting the board will approve or disapprove the claims and accounts as recommended by the committee, and the proper signed claims and accounts are then sent out by the controller.
"This accounting procedure by the controller’s office discloses that the county clerk does not sign the claims and accounts records of the board of commissioners, and that the bills, claims, and charges against the county are filed with the controller’s office and not with the county clerk prior to their being audited and approved by the county board. The county clerk has no knowledge concerning the bookkeeping or accounting systems used internally by the controller’s office.
"The commissioners hold their position on a part time basis, and it further appears that none of the commissioners is a professional accountant or versed in accounting procedures.
"The general ledger is kept and maintained in and by the county treasurer’s office, and not by the controller.
"The county clerk’s office has a system of accounts and accounting relating to its own daily operating procedures which involves a book of receipts and expenditures, a book containing listings of receipts and expenditures, a record of transmittal of funds received by the clerk’s office to the county treasurer, including a bank deposit ticket, a record of transmittal and receipt of transmittal from the treasurer’s office. This system constitutes the accounts and accounting of the county clerk’s office.
"The record shows the controller has never audited the accounts and accounting of the county clerk’s office, nor have other departmental offices been so audited since this office was created. It therefore appears the county controller has not developed a system of checks and balances with respect to control of public moneys and finances. The state, however, does audit the county periodically.
"The controller does not have possession nor control of books of account of the Probate and District Courts.”
Defendants’ claims are several:
(1) Improper rendition of an order to show cause why a writ of mandamus should not issue;
(2) Improper issuance of the writ of mandamus;
(3) Error in the ruling that the controller was not authorized to sign payroll checks;
(4) Error in the ruling that the controller could not have possession of the board’s books and accounts; and
(5) Error in the appointment of a special prosecuting attorney.
I
Defendants first claim that an order to show cause why writ of mandamus should not issue was improperly granted under GCR 1963, 714.2, be cause the complaint did not disclose a need for immediate action and because, as a result, all of the usual pretrial procedures were circumvented to the disadvantage of the trial and appellate courts.
Under GCR 1963, 714.1(2), the "circuit courts have jurisdiction in all mandamus proceedings involving the action or non-action of any officer or board of any county”. In such cases, the plaintiff may file an ex parte motion for an order to show cause. If it is established that immediate action is necessary, the order shall issue. GCR 1963, 714.2(1). The facts on which the court shall determine the existence of a necessity for immediate action are those stated in the ex parte motion.
In this case, plaintiff’s motion for an order to show cause was contained in its complaint. See, GCR 1963, 714.2(1). The facts pleaded in the complaint alleged that defendants were in possible violation of several criminal statutes, that there had been an attempt at unlawful tampering with the books, and that there had been a breakdown in the general checks and balances of the county government. If true, these actions were ongoing and, consequently, were sufficient to establish the necessity for immediate action. Under such circumstances, the order to show cause was properly issued.
II
Defendants’ claim that the writ of mandamus should not have issued was grounded on the argument that defendants were not obligated to do the act on which the writ was based and that the act sought to be enforced was discretionary rather than ministerial in nature. Defendants further state that the improper grant of the writ is re- fleeted in the fact that the trial judge had to resolve a conflict between MCL 46.4 and 46.5; MSA 5.324 and 5.325, the statutes setting forth the county clerk’s duty to supervise certain books, records and accounts, and MCL 46.13b; MSA 5.336, the statute which empowers the county controller to act as chief accounting officer of the county, with supervision of the accounts and accounting of every office in the county.
"Mandamus lies only when there is a clear legal duty incumbent on the defendant and a clear legal right in the plaintiff to the discharge of such duty. Miller v Detroit, 250 Mich 633; 230 NW 936 (1930). The specific act sought to be compelled must be of a ministerial nature, that is, prescribed and defined by law with such precision and certainty as to leave nothing to the exercise of discretion or judgment. Taylor v Ottawa Circuit Judge, 343 Mich 440; 72 NW2d 146 (1955), Bills v Grand Blanc Twp, 59 Mich App 619; 229 NW2d 871 (1975), State Board of Education v Garden City School District, 62 Mich App 376; 233 NW2d 547 (1975).” Board of County Road Comm’rs of Oakland County v State Highway Comm, 79 Mich App 505, 509; 261 NW2d 329 (1977), lv den 402 Mich 907 (1978).
As applied in this case, the clear legal right in the plaintiff, which the lower court found, was the right to have possession and control of the books and accounts of the board of commissioners. The clear legal duty in the defendants, as found by the lower court, was the duty to leave the books and accounts in the county clerk’s possession and control. The fact that the lower court had to construe the interrelationship between the county clerk’s statutes and the controller’s statute does not, in and of itself, mandate a finding that neither the right nor the duty are clear.
Under MCL 46.4; MSA 5.324, the county clerk is designated as the clerk for the board of commissioners. This statute also states that, in such position, the clerk is responsible for, among other things, preserving and filing "all accounts acted upon by the board, and in no account [shall he] allow such accounts to be taken from his office”. MCL 46.5; MSA 5.325, further provides that "the books, records and accounts of the county board of commissioners shall be deposited with their clerk”. While such documents are to be made available to the public under the Michigan Freedom of Information Act, 1976 PA 442; MCL 15.231 et seq.; MSA 4.1801(1) et seq., no one may remove them from the clerk’s office and refuse to return them, MCL 750.491; MSA 28.759, and the officer in custody shall not permit their removal except by court order, subpoena duces tecum, or for purposes of an audit. MCL 750.492; MSA 28.760. It is thus clear that, standing alone, these statutes, singly or together, were violated when the Gogebic County Controller secured possession and control over the books and accounts of the board and refused to return them to the county clerk.
Under MCL 46.13b; MSA 5.336, a county such as Gogebic is empowered, through its board of commissioners, to appoint a county controller. Further:
"The controller shall be the chief accounting officer of the county and shall have charge and supervision of the accounts and accounting of every office, officer and department of the county, the whole or any part of the expense of which are borne by the county. The controller shall see that a system of accounting is installed and properly kept by every office, officer and department of the county in strict accord with the provisions of law, and in addition to which he may prescribe and direct the keeping of such other accounts and records and the making of such reports as in his judgment are necessary to properly record and report the financial transactions of the county. All county officers or employees shall furnish such information respecting all county matters in their charge as the controller shall require. The controller shall keep in his office a general ledger in which shall be set up controlling accounts which shall show at all times the assets and liabilities of the county, and of each and every of its funds. The controller shall examine regularly the books and accounts of the several officers, agents and departments of the county and report his findings to the board of supervisors at such times as they shall prescribe.” (Emphasis supplied.)
The language of this statute, on its face, does not conflict with the provisions of §§ 4 and 5 noted above. Rather, it suggests that the controller should oversee (supervise) the books and accounts of all county offices and departments. It says nothing about possession of such accounts; such an arrangement would complicate rather than streamline county finances. And yet, if the controller were intended to have custody and control over the board’s books and accounts, the statute should so state, since such would clearly contradict the clerk’s statutes. Further, if possession and control of the board’s accounts was found to be mandated by the above statute, the controller would likewise have to assume possession and control over all county books and accounts; clearly, the statute does not distinguish between the accounts of one office or department and those of another.
While the statute setting forth the county clerk’s duties as clerk of the board has been in force since the 1850’s, the controller’s statute was not enacted until 1927. See, 1927 PA 257. As first enacted, § 13b was not significantly different from the current version. The only substantive amendments which were made through the years in volved the qualifying characteristics of the counties whose boards may appoint a controller (1927 PA 257; 1929 PA 132; and 1969 PA 49), and the power to also appoint a board of auditors instead of a controller. 1969 PA 49.
Statutory interpretation is primarily concerned with ascertaining the intent of the Legislature. Melia v Employment Security Comm, 346 Mich 544, 562; 78 NW2d 273 (1956). When construing a statute, effect should be given to every part thereof, insofar as is possible. Id. If these rules are applied to the statutes on which the instant parties make their cases, it is seen that neither irreconcilably conflicts with the other. Rather, we interpret the statutes to provide that, notwithstanding the county clerk’s exclusive possession and control of the board’s books and accounts, or any other officer’s or department’s possession and control of the books and accounts which relate thereto, a county board of commissioners may appoint a county controller who will oversee all of the books and accounts for every county office or department. In this regard, the controller is to see that a system of accounting is implemented "by every office, officer or department”. He is to keep a general ledger in his office in which are set up controlling accounts which always reflect the financial status of the county. Finally, he is to examine the books and accounts of "the several offices, officers and departments and report his findings to the board”.
The scheme provided by the interrelationship of §§ 4 and 5 and § 13b may be envisioned as a network which is wheel-shaped. The controller is the hub; the several offices, officers and departments which by their nature require the keeping of individual books and accounts are the spokes. Each spoke has day-to-day responsibility for its books and accounts, albeit under a system of accounting imposed by the controller. The financial data gathered in each of the books and accounts is tunneled to the board through the controller, whose general ledger will then reflect an up-to-date overall view of the county’s finances. In this manner, a person or entity interested in a financial picture of the county need only go to the controller’s general ledger rather than to each of the books and accounts seriatim.
We hold that there is no statutory basis on which the controller could take possession and control of the board’s books and accounts. We have acknowledged that such possession and control is by statute placed in the county clerk. The conclusion is thus inescapable that the board and the controller have (had) a clear legal duty to leave unchanged the clerk’s clear legal right to such possession and control. Thus, the writ of mandamus was properly issued, there being no question that the return of the books and accounts required no exercise of discretion on the part of either defendant.
Ill
Defendants further claim that the finding of the trial court that the controller was not authorized to sign payroll checks was erroneous. We disagree.
MCL 45.403; MSA 5.913, states that the county clerk shall sign the warrants for the payroll of certain officers (sheriff, under-sheriff, deputy sheriffs, county clerk, county treasurer, register of deeds, and the deputies of such officers). The controller thus had no authority to sign the checks for these officers.
Moreover, we agree with the trial court’s finding that, because the controller was not properly hired, he had no authority to sign any other payroll checks. MCL 46.13b; MSA 5.336, empowers the board to appoint the controller, by a majority vote of its members-elect. In this case, the controller was apparently hired by a subcommittee of the board, and the full board never formally ratified that action. However, the subcommittee which effected the hiring was composed of all the members of the board. By acting as a subcommittee, it was suggested, the board was able to circumvent the requirement that all board meetings be public. MCL 15.263; MSA 4.1800(13). In any event, until the controller’s appointment was formally ratified through the board’s "official resolutions and proceedings, [and] recorded in its official minutes”, the action of the subcommittee was apparently a nullity. Crain v Gibson, 73 Mich App 192, 200; 250 NW2d 792 (1977), lv den 400 Mich 828 (1977).
IV
Failing our acceptance of the defendants’ position on the above questions, it is argued that the clerk’s statutes, MCL 46.4 and 46.5; MSA 5.324 and 5.325, are unconstitutional because they were enacted in violation of Const 1963, art 4, § 24, the title-object clause, or because they were repealed by implication when § 13b was enacted. We reject both claims.
1851 PA 156, as amended, is entitled "an act to define the powers and duties of the boards of supervisors of the several counties, and to confer upon them certain local, administrative and legis lative powers; and to prescribe penalties for the violation of the provisions of this act”. Section 4 of the act designates the county clerk as clerk of the board of commissioners and sets forth his duties in that regard. Section 5 provides that the books and accounts of the board are to be kept in the clerk’s office, but are open to public inspection under the Freedom of Information Act. As these two provisions are "germane, auxiliary to, or incidental to the general purpose of the act”, Loomis v Rogers, 197 Mich 265, 271; 163 NW 1018 (1917), because they speak to the custody and control of documents which the board is required to keep, there is thus no violation of Const 1963, art 4, § 24.
Neither do we find a repeal by implication. Repeals by implication are not favored, Yarger v City of Hastings, 375 Mich 413, 417; 134 NW2d 726 (1965), nor presumed. Covert Twp Assessor v State Tax Comm, 53 Mich App 300, 304; 218 NW2d 807 (1974), aff'd 407 Mich 561 (1980). Such a construction is to be avoided, if any reasonable construction of the statute permits such a result. Loose v Dearborn Heights, 24 Mich App 87, 89; 180 NW2d 105 (1970). The favored construction, as noted earlier, is one which gives effect to every section of the act. Melia v Employment Security Comm, supra.
Our analysis of the interrelationship of §§ 4 and 5 and § 13b, supra, is a reasonable interpretation of the statute which gives effect to all three sections. There is no basis on which to premise a finding that § 13b repealed §§ 4 and 5, by implication or otherwise.
V
Finally, we find that the trial court did not err in appointing a special prosecutor to represent the plaintiff. MCL 49.153; MSA 5.751 provides that the prosecutor shall prosecute or defend all civil suits in which the county may be interested. Here, the county was interested in the suit by plaintiff against the county board of commissioners and the county controller. Further, by the time the lower court appointed a special prosecutor, the county prosecutor had elected to represent the board and controller in defense of plaintiff’s claims. Clearly, he could not also represent plaintiff under such circumstances. Consistent with MCL 49.160(1); MSA 5.758(1), the trial court’s appointment of a special prosecutor was proper.
On review of defendants’ claims on appeal we find no error. The judgment and orders of the lower court are therefore affirmed.
Affirmed. No costs, a public question being involved.
The circuit court’s order stated in part: "That defendant, Gogebic County Board of Commissioners reinstitute the functions and duties of the Gogebic County Clerk as required by law and by the opinion of this Court with respect to the above mentioned items.”
It is noted in this regard that meetings at which applicants for employment or appointment to a public office are interviewed must also be public. MCL 15.268(0; MSA 4.1800(18)(f). | [
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Bashara, J.
The defendant was charged with 12 counts of receiving or concealing stolen property valued over $100, MCL 750.535; MSA 28.803. Pursuant to a plea-bargain agreement, the trial court accepted defendant’s plea of guilty to eight of the offenses, and the remaining four charges were dismissed.
Defendant alleges on appeal that he was entrapped by police officers and that the defense of entrapment is not waived by a plea of guilty. This is an issue of first impression. However, there are cases which hold that nonjurisdictional defects are waived by the plea. See People v Ginther, 390 Mich 436, 440; 212 NW2d 922 (1973). On the other hand, a guilty plea does not waive jurisdictional defects or "complete defenses”, i.e., those issues that concern the state’s authority, as opposed to capacity, to bring a defendant to trial. People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976) (plea of guilty in prosecution barred by double jeopardy), People v Beckner, 92 Mich App 166, 169; 285 NW2d 52 (1979) (plea of guilty to charge brought under inapplicable statute).
The waiver doctrine has been liberally applied in favor of waiver due to the state’s interest in finality of guilty pleas. People v Hill, 86 Mich App 706; 273 NW2d 532 (1978). Entrapment is not a jurisdictional defense. Furthermore, we do not believe that it is a "complete defense”. By pleading guilty, the defendant not only admits that he committed the crime but also that he did so with the requisite intent and of his own free will. Therefore, we hold that the defendant is precluded from raising the entrapment issue after a plea of guilty has properly been entered.
Defendant argues that, in seven of the eight offenses, he was the thief, thereby precluding his conviction for receiving or concealing stolen property. Review of the transcript reveals that the defendant admitted stealing and selling the cars.
People v Kyllonen, 402 Mich 135; 262 NW2d 2 (1978), is controlling. In Kyllonen, the defendant signed a confession that was admitted at trial in which he admitted stealing a truck and then concealing it and attempting to sell it. Another defendant, whose appeal was consolidated with Kyllonen’s, was caught in a high speed chase just after stealing a car from an acquaintance. Both defendants were convicted of receiving or concealing stolen goods.
On appeal, the defendants argued that the receiving or concealing statute did not encompass theft. The Court of Appeals affirmed the convictions, holding that a thief could be convicted under the receiving or concealing statute as long as he was not also convicted of larceny.
The Supreme Court examined the legislative history of the receiving or concealing stolen goods statutes and determined that the "everyday understanding of the language employed excludes the person who committed the larceny”. Id., 145.
The Court concluded:
"Therefore, the statute should be strictly construed to exclude thieves who conceal property they have stolen. Under the Michigan statutory scheme, thieves are to be punished for larceny. Persons who help thieves or others conceal stolen property are to be punished for aiding in the concealment of stolen property.” Id., 148.
However, the Court stated exceptions to this rule. Most importantly, the Court stated:
”A sale or other transfer of stolen property by the thief marks the end of the original crime of larceny. After this, aid rendered by the thief which has a tendency to conceal the property from the owner’s observation may be considered aid rendered to another and may be punishable under MCL 750.535; MSA 28.803. The transferee may become the principal felon, guilty of buying or receiving as the case may be, and the thief may become his assistant. Similarly, if the thief transfers stolen property and then buys or receives it back, he may be prosecuted and convicted under this statute.” Id., 149-150. (Emphasis added.)
The Court reversed the convictions because the jury may have convicted the defendants of receiving or concealing stolen property because it believed the defendants were thieves.
The record does not establish a sufficient factual basis for the seven convictions. Those cases are remanded to the trial court. The prosecutor shall there be given an opportunity to supplement the record to show that the defendant helped to conceal the property after he sold it to the undercover officers.
If he is able to do so and there is no contrary evidence, the convictions shall be affirmed. If the prosecutor is unable to establish the missing element, the convictions shall be set aside. If contrary evidence is produced, the matter shall be treated as a motion to withdraw the guilty plea, and the court shall decide the matter in the exercise of its discretion. Guilty Plea Cases, 395 Mich 96, 129; 235 NW2d 132 (1975), cert den sub nom Sanders v Michigan, 429 US 1108; 97 S Ct 1142; 51 L Ed 2d 561 (1977).
Finally, the defendant argues that the remaining conviction should be reversed because of an insufficient factual basis to establish the crime. Defendant argues that his testimony that the projector is worth more than $100 is only his opinion and not enough to establish that element. We disagree. It is the defendant’s word that establishes all the elements in every guilty plea. We see no reason to disbelieve his statement that a sound projector is worth at least $100. A factual basis for acceptance of a plea of guilty exists if an inculpatory inference could be drawn from facts admitted by the defendant, even if an exculpatory inference could also be drawn as now asserted by the defendant. Id., 130.
The conviction in lower court case #78-07382 is affirmed. The remaining cases are remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Affirmed in part, reversed in part and remanded.
J. H. Gillis, P.J., concurred.
Lower court cases #78-07375 through #78-07381 comprise the seven cases involving the theft of automobiles. The eighth conviction, #78-07382, has not been challenged on this bases. The record establishes that the defendant was not the thief in case #78-07382. | [
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Per Curiam.
Plaintiff Red Run Golf Club (hereinafter Red Run) brought this action to recover for fire damages not covered by its insurance; plaintiff Hartford Fire Insurance Company joined the action to recover monies paid to plaintiff Red Run. The trial court directed verdicts in favor of each of the defendants and awarded defendant Walter Kidde & Company, Inc. (hereinafter Kidde), actual attorney fees. Plaintiffs appeal as of right.
In 1974, plaintiff Red Run hired defendant Stainless Equipment Manufacturing Co. (hereinafter Stainless) to do the construction on the renovation of the plaintiff’s kitchen. Defendant Stainless did some of the work itself and subcontracted other portions. Defendant Detroit Fire Extinguisher Company, Inc. (hereinafter Detroit), was subcontracted to lay out and install an automatic fire extinguishing system, which also had a manual control, in the kitchen. Defendant Detroit bought this system from defendant Kidde, pursuant to plaintiff Red Run’s instructions.
In 1977, a fire occurred in one of the broilers in plaintiff Red Run’s kitchen. The automatic fire extinguishing system, which was supposed to activate when heat-sensing devices, known as fusible links, melt and release a dry chemical substance to smother the fire, did not operate, and plaintiff’s employees did not activate the manual control. At trial, it was necessary to determine whether the system’s fusible links and manual pull were properly located. This entailed a consideration of both the system’s design, for which defendant Kidde was responsible, and the system’s installation, for which defendant Detroit was responsible. Plaintiffs alleged theories of negligence, products liability, and breach of warranty.
On appeal, the plaintiffs first argue that the trial court erred by refusing to allow the plaintiffs’ expert witness to testify regarding the placement of the fusible links. We begin by noting that it is well settled that the determination of whether an expert witness is qualified to testify rests within the sound discretion of the trial court; this Court will not reverse the determination of a witness’s status unless there has been an abuse of that discretion. People v Potter, 115 Mich App 125; 320 NW2d 313 (1982); People v Kearney, 72 Mich App 28, 33; 248 NW2d 687 (1976), lv den 399 Mich 844 (1977). Furthermore, the admissibility of test results and experiments performed by experts and nonexperts is also a matter within the wide discretion of the trial judge, and before such test results can be admitted, a proper foundation must be laid to show that the test in question properly duplicated the actual conditions giving rise to the lawsuit. Vanderberg v General Motors Corp, 96 Mich App 683, 688; 293 NW2d 676 (1980). Thus, a test, to have any probative value whatever, must recreate the original conditions of the occurrence. Elliott v A J Smith Contracting Co, Inc, 358 Mich 398, 417; 100 NW2d 257 (1960).
Here, the testimony of the plaintiffs’ alleged expert was offered to prove that the placement of the fusible links in the automatic fire extinguishing system was improper. His conclusion was based on a series of temperature measurement tests he had taken under a commercial kitchen hood during a series of controlled fires; only five tests were taken on the type of broiler used in plaintiff Red Run’s kitchen. The witness had never tested fusible links under actual or comparable conditions in any of his experiments. The trial court expressed its concern over the fact that the witness’s proffered opinion and conclusion were based upon pure theory rather than actual application and testing of that theory. Since the witness’s theory was that the temperature above the broiler under the hood would not reach the level necessary to melt the fusible links due to their location, the trial court inquired of the witness whether he would be able to predict with any reasonable degree of certainty what the heat would have been on top of the broiler based upon the description of the fire given by previous witnesses. Plaintiffs’ witness responded that he could not, that the fire as described was most unusual, and that none of his testing involved a similar phenomenon. After lengthy questioning and argument, the trial court ruled that the plaintiffs’ witness could not be qualified as an expert in relation to the triggering of the fusible links because his theory and proffered opinion were not based on any test procedures which simulated the type of fire at issue and thus the prejudicial effect of his testimony outweighed its probative value as far as the jury was concerned. Under these circumstances, we cannot say that the trial court’s decision to exclude testimony from the plaintiffs’ expert witness regarding the placement of the fusible links was a clear abuse of discretion.
Plaintiffs next argue that the trial court erred by granting directed verdicts in favor of each of the defendants. On appeal, the plaintiffs argue that the directed verdicts were improper because: (1) defendant Detroit negligently installed the manual pull and the fusible links in the automatic fire extinguishing system; (2) defendant Kidde defectively designed the system; and (3) defendant Stainless breached certain warranties and is vicariously liable for defendant Detroit’s negligence.
The standard of review of a motion for directed verdict is well settled. As this Court stated in Hayes v General Motors Corp, 106 Mich App 188, 192; 308 NW2d 452 (1981):
"A trial court in considering a motion for directed verdict must view the testimony and all legitimate inferences in a light most favorable to the nonmoving party. If the evidence establishes a prima facie case, the motion must be denied. In slightly different terms, this Court has held that a motion for directed verdict should be denied when the facts, when viewed in a light most favorable to the nonmovant, are such that reasonable persons could honestly reach different conclusions.” (Citations omitted.)
In addition, directed verdicts in negligence actions are viewed with disfavor since the determination of liability greatly depends upon the resolution of conflicting factual matters. Cole v Rife, 77 Mich App 545, 549; 258 NW2d 555 (1977). We will discuss the propriety of a directed verdict as it applies to each individual defendant.
Defendant Detroit was subcontracted by defendant Stainless to install the automatic fire extinguishing system in plaintiff Red Run’s kitchen. Plaintiffs allege that defendant Detroit was negligent in placing the system’s fusible links and the manual pull. There was conflicting testimony as to whether the links’ location conformed to the specifications or the intent of the system’s instructional manual. The senior project engineer for defendant Kidde, who partially designed the system and authored 90% of the system’s instructional manual, testified that the links could be positioned in three different places but his testimony was unclear as to whether defendant Detroit had positioned the links in any of those three places. Furthermore, the fire inspector for the City of Royal Oak testified that insufficient heat had reached the links and that he believed that this fact explained why the automatic system did not trigger. Based on this testimony, combined with the fact that the system’s links were not activated by the fire, the jury could have found that the links were improperly placed. As to the alleged negligence in placing the manual pull, there was conflicting testimony as to whether the manual pull was on an exit path from the broiler’s hood, as required by the system’s instructional manual. In light of this evidence, we find that a directed verdict in favor of defendant Detroit was erroneous; a jury could have found that defendant Detroit was negligent in positioning the fusible links and was negligent by failing to place the manual pull on an exit path as required.
Plaintiffs’ theory of liability regarding defendant Kidde is one of products liability, i.e., the system manufactured by defendant Kidde was defectively or negligently designed. Two theories of recovery in products liability actions are recognized in this state: that of negligence-and that of implied warranty. Johnson v Chrysler Corp, 74 Mich App 532, 535; 254 NW2d 569 (1977), lv den 400 Mich 861 (1977). In Abel v Eli Lilly & Co, 94 Mich App 59, 70; 289 NW2d 20 (1979), lv gtd 410 Mich 869 (1980), this Court stated:
"Under a negligence theory, the plaintiff must establish the traditional common-law elements of duty, breach, damage and causation. To establish breach of implied warranty, the plaintiff must show that a defect in the product, attributable to the manufacturer, caused his injuries.” (Citation omitted.)
With respect to negligent design, this Court has stated that a manufacturer’s liability is predicated upon whether he has failed to protect against a risk that is "unreasonable and foreseeable by the manufacturer”. Such a test focuses on the reasonableness of the manufacturer’s conduct since it is the duty of the manufacturer to exercise due care. Durkee v Cooper of Canada, Ltd, 99 Mich App 693, 699; 298 NW2d 620 (1980). Negligent design falls under both a negligence theory and an implied warranty theory of liability because a manufacturer has a duty to produce a reasonably fit product under either concept. Elsasser v American Motors Corp, 81 Mich App 379, 385; 265 NW2d 339 (1978).
We find that under the circumstances of this case the jury could have concluded that more than one manual pull location was required in plaintiff Red Run’s kitchen or that the fusible links should have been designed to have been placed in a different location. The fact that the National Fire Protection Association does not require that there be more than one manual pull or that the fusible links be placed in a different location does not mean that defendant Kidde’s design, which complied with such requirements, was not negligent. It is well accepted that compliance with industry or governmental standards is merely relevant, not conclusive, evidence of reasonably prudent conduct which the factfinder may consider in its determination of negligence. Marietta v Cliffs Ridge, Inc, 385 Mich 364, 369-370; 189 NW2d 208 (1971); Elsasser, supra, 386. We thus conclude that a directed verdict in favor of defendant Kidde on plaintiffs’ claim of negligent design was erroneous.
Plaintiffs claim that defendant Stainless breached an express warranty that the automatic fire extinguishing system would protect the kitchen’s broiler and an implied warranty of fitness for a particular purpose. However, the kitchen equipment was provided by defendant Stainless in accordance with plaintiff Red Run’s instructions. Although defendant Stainless contracted to provide the automatic dry chemical fire extinguishing system, plaintiff Red Run/specified that the system be one manufactured by defendant Kidde. There is no evidence that defendant Stainless made an express warranty regarding the system manufactured by defendant Kidde; a directed verdict for defendant Stainless on this theory was proper.
With respect to the implied warranty of fitness claim, the Michigan Supreme Court stated in F M Sibley Lumber Co v Schultz, 297 Mich 206, 216-217; 297 NW 243 (1941), quoting with approval from Dunn Road Machinery Co v Charlevoix Abstract & Engineering Co, 247 Mich 398; 225 NW 592; 64 ALR 947 (1929):
"' "The essence of the [implied warranty of fitness] rule is, that the contract is executory; that the particular article is not designated by the buyer; that only his need is known; that he does not undertake or is not able to determine what will best supply his need, and therefore necessarily leaves the seller to make the determination and take the risk; and if these elements are wanting, the rule does not apply. If, therefore, a known, described and defined article is agreed upon, and that known, described or defined article is furnished, there is no implied warranty of fitness even though the seller is the manufacturer and the buyer disclosed to him the purpose for which the article was purchased.” ’ ” (Emphasis added.)
Thus, since plaintiff Red Run requested defendant Stainless to provide a known, defined good which was subsequently furnished, a directed verdict in favor of defendant Stainless on the claim of implied warranty was also proper.
Furthermore, we find no basis for. the plaintiffs’ claim that defendant Stainless is vicariously liable for the fire damage. It is uncontroverted that defendant Stainless subcontracted defendant Detroit to supply and install the automatic fire extinguishing system. Generally, one who employs an independent contractor is not vicariously liable for the latter’s negligence. Misiulis v Milbrand Maintenance Corp, 52 Mich App 494, 498; 218 NW2d 68 (1974). The rationale for this rule is that an independent contractor is not subject to the control of the employer, and, therefore, the employer should not be held vicariously liable for the negligence of the independent contractor. See Nichol v Billot, 406 Mich 284, 296; 279 NW2d 761 (1979). There was no evidence presented to show that defendant Detroit was an employee subject to defendant Stainless’s control. Therefore, we find that a directed verdict in favor of defendant Stainless on the claim of vicarious liability was also proper.
Lastly, plaintiffs argue that the trial court erred by awarding defendant Kidde actual attorney fees. Under GCR 1963, 316.7(b)(1), if a plaintiff rejects a mediator’s recommendation and the case proceeds to trial, the plaintiff must obtain a verdict which is ten percent greater than the mediation evaluation or pay actual costs to the defendant. Under GCR 1963, 316.6(h)(1), failure to file a written acceptance within 20 days after the mediation panel’s evaluation is mailed to the parties constitutes rejection. In this case, the mediator recommended no cause of action regarding defendant Kidde, and plaintiffs did not clearly accept that recommendation. Since the plaintiffs’ failure to file a written acceptance of that recommendation constituted rejection of such, the trial court did not err by awarding actual attorney fees to defendant Kidde after it obtained a directed verdict at trial. However, since we have concluded that the directed verdict was erroneous, we hereby reverse the award of actual attorney fees to defendant Kidde until this case is ultimately decided. If at that time the plaintiffs fail to obtain a verdict against defendant Kidde, the plaintiffs may be required to pay the actual attorney fees to defendant Kidde.
The judgments for defendants Detroit Fire Extinguisher Company, Inc., and Walter Kidde & Company, Inc., are reversed and the case remanded.
The judgment for defendant Stainless Equipment Manufacturing Co. is affirmed. | [
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M. J. Kelly, P.J.
Plaintiff, Josephine Layton, appeals a grant of accelerated judgment, GCR 1963, 116, in favor of defendants Wayne County Board of Commissioners, William Lucas, the Wayne County Sheriff, and Frank Wilkerson, the Wayne County Jail Administrator.
On October 5, 1976, plaintiff administratrix commenced this wrongful death action to recover damages for the death of David Fregin. According to the complaint, Fregin was incarcerated in Wayne County Jail pending his arraignment on a felony charge. On his first day of incarceration, he unsuccessfully attempted suicide. Three days later, he again threatened to take his life and made another attempt. That night, he was seen by Dr. Leo Quinn, one of the jail’s psychiatrists, who diagnosed the decedent as psychotic but not acutely suicidal. Fregin was transferred from the ward reserved for inmates with mental problems to a disciplinary cell. The cell was the farthest from the guard station and contained a toilet which was nonfunctional, contained fecal waste, paper, and other debris. Fregin was also denied exercise privileges and an opportunity to walk around outside his cell. Two days after being placed in the cell, Fregin committed suicide.
Prior to Fregin’s incarceration, a three-judge panel of the Wayne County Circuit Court had issued orders to the Wayne County Board of Commissioners (commissioners), the sheriff, and the jail administrator concerning the admission, custody, care, and treatment of inmates incarcerated in the jail. This order was affirmed by the Michigan Supreme Court. See Wayne County Jail Inmates v Wayne County Sheriff, 391 Mich 359; 216 NW2d 910 (1974). After Fregin’s death, an investigation of his suicide was conducted by the three-judge panel of the Wayne County Circuit Court. The panel found that the commissioners, sheriff, and jail administrator had violated a number of the court’s orders. On November 25, 1975, the panel issued an opinion cataloging the derelictions which led to Fregin’s hanging himself with a sheet and excoriated the jail authorities for "multiple violations” of the panel’s previous orders. Plaintiff’s complaint in the instant action filed 11 months after the three-judge court issued its above reference opinion alleged 20 violations of court orders imposing specific duties on defendants Sheriff Lucas and Administrator Wilkins. We hold that plaintiff has presented a question of factual determination and reverse the grant of accelerated judgment.
The commissioners, sheriff, and jail administrator moved for accelerated judgment, claiming governmental immunity barred plaintiff’s action. On July 14, 1977, the trial court granted defendants’ motion. Plaintiff moved for reconsideration of the court’s order following the Supreme Court’s decisions in Lockaby v Wayne County, 406 Mich 65; 276 NW2d 1 (1979), and Bush v Oscoda Area Schools, 405 Mich 716; 275 NW2d 268 (1979). The trial court denied plaintiff’s motion. Plaintiff sought leave to appeal to this Court, GCR 1963, 806.2, which was granted. On January 8, 1982, this Court denied defendants sheriffs and jail administrator’s motion to dismiss.
On appeal, plaintiff argues that the public building exception to governmental immunity, MCL 691.1406; MSA 3.996(106), prevented defendants from raising the defense of governmental immunity. Defendants counter by arguing that plaintiff failed to allege specific facts which would avoid governmental immunity.
MCL 691.1407; MSA 3.996(107) grants immunity from tort liability to governmental agencies which are engaged in the exercise or discharge of a governmental function. The operation of a jail is a governmental function for which the county is immune. Lockaby, supra, pp 79, 83, 84. However, an exception to this rule exists if the jail was a defective public building. MCL 691.1406; MSA 3.996(106). The statute states in relevant part:
"Government 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 damages 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.”
Whether a public building is dangerous or defective is to be determined in light of the uses or activities for which it is specifically assigned. Lockaby, supra, p 77; Bush, supra, p 731. When determining whether a place is safe, we must consider the use or purpose it serves. Bush, supra, p 731. In Lockaby, the question addressed was whether a cell in Wayne County Jail was safe for imprisoning an inmate with mental problems.
In this case, plaintiffs complaint alleges that the jail cell, in which Fregin committed suicide, was not safe when used to incarcerate an inmate with mental problems and suicidal tendencies. As in Lockaby, supra, this allegation was sufficient to avoid accelerated judgment based upon governmental immunity. Whether the cell was defective when used to confine Fregin is a question for the trier of fact as is the question of whether the defect was a cause of his death. See Bush, supra, p 732.
When granting accelerated judgment to the county, the trial judge relied also upon Const 1963, art 7, § 6, which provides that the county is not responsible for the acts of the sheriff. However, the county may be liable individually or for the acts of its other employees. The plaintiffs complaint has alleged liability on the part of the county individually and not just from the county’s responsibility for the sheriffs actions. Therefore, it was improper to grant accelerated judgment in favor of defendants Wayne County Board of Commissioners, Sheriff, and Jail Administrator on these grounds.
In addition, accelerated judgment was granted to the sheriff and the jail administrator because the trial court found that plaintiffs complaint alleged only vicarious liability and that governmental immunity shielded the sheriff and the jail administrator from such liability. In her complaint, however, plaintiff alleged:
"Despite the duty owed the plaintiffs decedent, the defendants Lucas and Wilkerson were negligent in the following respects, among others:
"a) Failure to observe lawful court orders concerning the condition of the Wayne County Jail and its population;
"b) Failure to hire competent and diligent personnel;
"c) Failure to properly and adequately train jail personnel;
"d) Failure to properly and adequately supervise jail personnel.”
The circuit judge erred in stating that the foregoing were allegations of vicarious liability. Vicarious liability is based on principal-agent and master-servant relationships and involves the imputation of the negligence of the agent or servant to the principal or master without regard to the fault of the principal or master. Plaintiffs complaint, however, alleged personal fault on the part of the sheriff and the jail administrator rather than any vicarious liability.
Nevertheless, plaintiffs allegations of negligence may still be within the limited scope of immunity granted to governmental employees. The scope of governmental immunity for governmental employees under Michigan law is a topic of wide debate. A number of decisions of this Court have begun to freely apply governmental immunity whenever a governmental employee is "acting within the scope of his employment”. See, e.g, Lewis v Beecher School System, 118 Mich App 105; 324 NW2d 779 (1982); Gaston v Becker, 111 Mich App 692; 314 NW2d 728 (1981) (a 2-1 decision). Other decisions have continued to limit the scope of immunity for governmental employees by applying a ministerial-discretionary distinction for acts committed within the scope of employment. See, e.g., Willis v Nienow, 113 Mich App 30; 317 NW2d 273 (1982); Cook v Bennett, 94 Mich App 93; 288 NW2d 609 (1979) (a 2-1 decision). These latter cases hold that while discretionary acts committed within the scope of a governmental employee’s proper authority are accorded immunity, ministerial acts and those committed outside of the employee’s authority are not.
The ministerial-discretionary standard for according immunity to governmental employees has its roots in early Michigan common law. See Gordon v Farrar, 2 Doug 411 (Mich, 1847); Wall v Trumbull, 16 Mich 228, 236 (1867) ("it is the nature of the duties to be performed that determines its application”). Under these early decisions, a governmental officer acting in a decision-making or judicial role and not acting outside of his authority is cloaked with immunity from liability.
In 1961, an eight-member Supreme Court threatened to abolish all governmental immunity. In Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961), the Court reached a standoff (4-4) on whether the complete doctrine should be abolished. Indeed, Justice Edwards, with three other justices in support, wrote:
"From this date forward the judicial doctrine of governmental immunity from ordinary torts no longer exists in Michigan. In this case, we overrule preceding court-made law to the contrary. We eliminate from the case law of Michigan an ancient rule inherited from the days of absolute monarchy which has been productive of great injustice in our courts. By so doing, we join a major trend in this country toward the righting of an age-old wrong.” Williams, supra, p 250.
The swing opinion in the case, written by Justice Black, affirmed state governmental immunity but implied that municipal immunity should prospectively be cast aside. Williams, supra, pp 270-290. Three months later, the Supreme Court made it clear that the Williams decision "had overruled, prospectively, the rule of immunity — from tort liability — of municipal corporations; no more and no less”. McDowell v State Highway Comm’r, 365 Mich 268, 269; 112 NW2d 491 (1961) (emphasis in original).
The Legislature was not content with the prospect of losing governmental immunity. Thus, it soon passed a governmental immunity act, 1964 PA 170 (effective July 1, 1965), retaining immunity for "the state, political subdivisions, and municipal corporations”. See MCL 691.1401(d); MSA 3.996(101)(d). Section 7 of the act specifically provided:
"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein said government agency is engaged in the exercise and 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 liábility as it existed heretofore, which immunity is hereby affirmed.” MCL 691.1407; MSA 3.996(107).
The language of this section demonstrates a legislative attempt to codify common-law governmental immunity, in order to prevent the judiciary from abolishing or "modifying or restricting” the doctrine from its common-law form.
In spite -of this legislation, governmental immunity remained under attack. In 1966, a panel of this Court stated, "[i]t is clear that the public policy of Michigan is that the defense of governmental immunity to tort actions should no longer exist.” Branum v Bd of Regents of University of Michigan, 5 Mich App 134, 138; 145 NW2d 860 (1966). Then, in 1969, this Court declared the legislative codification of governmental immunity to be unconstitutional, solely because it embraced "an object not expressed in its title”. Maki v City of East Tawas, 18 Mich App 109, 120; 170 NW2d 530 (1969) (a 2-1 decision applying Const 1963, art 4, § 24), aff'd 385 Mich 151; 188 NW2d 593 (1971). Back at the Capitol, however, the Legislature quickly passed 1970 PA 155, which corrected the title-object deficiency of the original act rather than its substance. See MCL 691.1401-691.1415; MSA 3.996(101)-3.996(115). This revised act was given immediate effect. Thus, after various blows between the courts and the Legislature, governmental immunity was virtually unchanged. Common-law governmental immunity still remained for all but municipalities and statutory governmental immunity preserved governmental immunity as it existed at common law, including its extension to municipalities.
In November, 1976, the Supreme Court decided three cases on governmental immunity. In Thomas v Dep’t of State Highways, 398 Mich 1; 247 NW2d 530 (1976), the Court addressed whether the construction of a state highway was a governmental function. For purposes of the instant discussion, however, the Court made an important statement: that the Legislature’s codification of governmental immunity "must be construed as an 'affirmation’ of case-law precedent on the subject of the state’s immunity”. Thomas, supra, p 11. Thus, since prior case-law precedent extended immunity to state officials only when they acted within a "judicial” or "discretionary” capacity and not outside of their proper authority, the governmental immunity statute must be construed as encompassing this limitation as well.
Decided on the same day as Thomas, was Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976). There, the Court was faced with a unique factual setting. On April 24, 1969, the plaintiff was injured due in part to the alleged negligence of the Taylor Board of Education. The board asserted the defense of governmental immunity. The Supreme Court decided in Pittman, however, to abolish common-law governmental immunity. Since the Legislature’s 1964 attempt to codify governmental immunity was previously deemed unconstitutional, the Court found that statutory governmental immunity did not exist until 1970, the date the revised immunity statute was passed. Since plaintiffs accident occurred in 1969, and statutory immunity did not exist until 1970, the defendant board was found to be without immunity to plaintiff’s suit. Given the unusual factual setting in Pittman, where an accident occurred in 1969 and the question of immunity was not finally adjudicated until 1976, the abolition of common-law governmental immunity may have affected only the parties in the Pittman case. Any injury occurring after 1970 would be covered by the immunity statute which, as noted in Thomas, is an affirmation of the common law.
Finally, that same day, the Court decided McCann v Michigan, 398 Mich 65; 247 NW2d 521 (1976). There, in separate opinions, a majority of the Court agreed that an intentional tort was not in the exercise or discharge of a governmental function, was outside the proper scope of employment, and was not, therefore, protected by governmental immunity.
Three years later, in Bush, supra, the Court was faced with a suit brought against a teacher, a school principal, a school district superintendent, and a school district. The Court issued four separate opinions. In discussing the possible liability of the three individuals, three justices, Levin, Kavanagh, and Fitzgerald, simply stated, "[t]he complaint did state claims against the three individual defendants.” Bush, supra, p 733. No analysis was given. Justice Moody found that the three individual defendants "were performing primarily discretionary activities” and, therefore, were immune from negligence liability. Justice Williams wrote that only the ultra vires activities of public employees are not protected by governmental immunity. Justice Ryan wrote "[t]he threshold consideration in determining * * * governmental immunity defense” is whether defendant "and its employees were engaged in the exercise or discharge of a govermental function”. He conceded, however, that the Legislature intended "that this Court look to the common law for guidance in determining whether governmental immunity was applicable in each case”. Bush, supra, pp 734, 735. He found no liability on the part of the individual defendants but did not discuss the ministerial-discretionary standard. Justice Coleman concurred with Justices Moody and Ryan. Out of the four opinions of the seven justices, only Justice Williams clearly abandoned the ministerial-discretionary test.
The following month, the Court decided Lockaby, supra. Justices Levin, Kavanagh, and Fitzgerald made no decision on immunity of governmental employees. They stated:
"While the governmental tort liability act does not provide any immunity to governmental officials, the common law has recognized that governmental officials have a limited immunity. The cause has not been tried; decision on whether there is immunity should be deferred.” Lockaby, supra, p 78.
Justice Coleman found plaintiffs allegations "make out a possible case of intentionally tortious acts committed by agents of the defendants, thus potentially not within 'the exercise or discharge of a governmental function”’. Lockaby, supra, p 78. On plaintiffs negligence allegations, however, Justice Coleman stated, "the county’s officers and employees, while acting in the scope of their employment operating and maintaining a jail, are likewise immune”. Lockaby, supra, p 79. It appears, therefore, that Justice Coleman, without expressly stating such, may have abandoned the ministerial-discretionary distinction for acts committed within the scope of a governmental employee’s functions. Justice Ryan concurred with Justice Coleman. Justice Williams reiterated that "it is the ultra vires activities of public employees which are not protected by the doctrine of governmental immunity”. Lockaby, supra, p 83. Finally, Justice Moody, who a month earlier had based a governmental immunity decision on the ministerial-discretionary distinction, stated, "the officers and employees of the county, while acting within the scope of their employment maintaining a jail, primarily are performing essential public duties. Thus, they are immune from alleged negligent actions or selection of personnel.” Lockaby, supra, p 84. What Justice Moody meant by this language is not clear.
Whatever can be read from Bush and Lockaby, one fact must be conceded: the Supreme Court did not expressly abolish the ministerial-discretionary test for determining whether governmental immunity applies to governmental officials who may have been negligent in the performance of their duties.
Established rules of law are not generally abandoned merely by implication. See People v Stoeckl, 347 Mich 1, 16; 78 NW2d 640 (1956). Thus, we decline to follow the errant path of some panels of this Court which have abandoned the ministerial-discretionary test. The abolition of the standard would result in an unwarranted expansion of governmental immunity. Such an expansion should not be predicated merely on what a panel predicts "four members of the Supreme Court would now hold”. Contra, Lewis, supra, p 111.
If a public official acts outside the scope of his authority (ultra vires), immunity does not apply. If he commits an intentional tort, immunity does not apply as the act is ultra vires. If he is negligent in a ministerial role, immunity does not apply. If, however, a decision-making official is negligent in making a decision or exercising discretion, governmental immunity protects him from liability.
In the instant case, plaintiffs allegations that defendants were negligent in their hiring, training, and supervision of jail personnel are allegations of misconduct in defendants’ decision-making roles. How to properly hire, train, and supervise employees involves the exercise of discretion. Since these acts involve areas within defendants’ authority, governmental immunity protects defendants from liability from any negligent actions.
Plaintiff alleged further, however, that defendants were negligent in their "failure to observe lawful court orders concerning the condition of Wayne County Jail and its population”. These court orders were so explicit and left so little to the discretion of the sheriff and jail administrator that the duties of those officials under the orders must be classified as ministerial. Thus, any negligence by the defendants in failing to comply with the orders must be deemed outside the protection of governmental immunity. Further, violation of legally binding court orders would be outside the scope of defendants’ authority. Thus, their actions would be ultra vires. Governmental immunity does not extend to the ultra vires acts of any employee, whether committed in a ministerial or discretionary role. Plaintiffs negligence action against the sheriff and the jail administrator under clause (a) of her complaint, therefore, is not barred by governmental immunity.
Plaintiffs action against the commissioners, sheriff, and jail administrator alleging that they failed to maintain a safe public building is reinstated. Plaintiffs action against the sheriff and jail administrator alleging that they were negligent in failing to observe lawful court orders is reinstated. The trial court’s grant of accelerated judgment as to the remaining negligence counts against the sheriff and jail administrator is affirmed. | [
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Per Curiam.
Plaintiff appeals by right from a circuit court order denying the plaintiff’s motion for a corrective order based on GCR 1963, 528.1. We reverse.
This action began in 1975 when the plaintiff sued the defendant, claiming that the plaintiff and other Michigan pharmacies had received improperly reduced dispensing fees for services performed under the defendant’s prescription program. Plaintiff was granted a partial summary judgment based on the trial court’s finding that the reduced dispensing fees were in breach of contract. Thereafter, the court granted the plaintiff’s motion for class certification and approved the class action notice and response and claim forms which were sent to all the potential class members. Farmer Jack Pharmacies, Inc., returned the completed response and claim forms to the plaintiff’s attorneys, but it was not included in the class list filed in the trial court because the plaintiffs attorneys had misfiled its forms in their office. Plaintiff then moved for summary judgment, and the court’s opinion granting such confirmed that the class list (from which the Farmer Jack Pharmacies had been omitted) represented the complete and accurate identification of those parties plaintiff who were entitled to share in the judgment. We affirmed the court’s decision in Grettenberger Pharmacy, Inc v Blue Cross-Blue Shield of Michigan, 98 Mich App 1; 296 NW2d 589 (1980), lv den 410 Mich 910 (1981).
After the trial court entered an order implementing the judgment, the plaintiff moved for the corrective order which is the basis of this appeal, requesting that the trial court correct the alleged clerical error which had resulted in the omission of the Farmer Jack Pharmacies from the class list. The trial court ruled that the error alleged by the plaintiff was not a clerical mistake and thus the plaintiff was not entitled to a corrective order under GCR 1963, 528.1. We agree.
GCR 1963, 528.1 provides:
".1 Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.”
This Court recently addressed the issue of relief under GCR 1963, 528.1 in Stokus v Walled Lake School Dist, 101 Mich App 431; 300 NW2d 586 (1980), lv den 411 Mich 909 (1981). In that case, the Court noted that the purpose of GCR 1963, 528.1 is:
"* * * to make the lower court record and judgment accurately reflect what was done and decided at the trial level. When the alleged error is in the court’s action itself, as distinguished from the record made of the court’s action, the alleged error is not a clerical mistake under this rule.” 101 Mich App 433. (Citations omitted.)
The Court went on to note that when a plaintiff is not attempting to change the original judgment to more accurately reflect what was done and decided by the lower court but rather is attempting to add something to the prior judgment which was neither discussed nor decided, a motion under GCR 1963, 528.1 is unavailable. Stokus, p 434.
We find that the plaintiff here is not attempting to change the original judgment to more accurately reflect what was done and decided at the trial level but is trying to add something to the judgment not discussed below. Plaintiff is attempting to add the Farmer Jack Pharmacies to the class list so that they will be included in the judgment despite the fact that such an addition would decrease the defendant’s entitlement to funds returnable under the judgment, which was based upon a list compiled by the plaintiff’s attorneys and relied upon by the trial court as complete and accurate. Thus, although the error occurred in the clerical compilation of the class list, the ensuing court action was based upon that error and the subsequent judgment accurately reflects what was done and decided at the trial level — i.e., specified members of a class list were entitled to share in a judgment, with the defendant receiving a calculable sum in return. Under these circumstances, relief for a clerical mistake under GCR 1963, 528.1 is inappropriate.
We do not, however, intend our holding to deny the plaintiff the relief to which it should be entitled. Plaintiff should have moved under GCR 1963, 528.3(1) for relief from the trial court’s judgment and order on the basis of mistake or excusable neglect, which was clearly present in these circumstances. Since GCR 1963, 820.1, subds (1) and (7) provide this Court with the authority to amend judgments and grant such relief as the case may require, we amend the trial court’s judgment and order and direct the defendant to return $8,596.53 to the plaintiff for distribution to the Farmer Jack Pharmacies, Inc. We note that this decision results in no injustice to the defendant, whose original liability for wrongfully withheld money remains the same. By correcting this mistake, money will merely be returned to the injured party rather than being retained by the party in breach of contract.
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Per Curiam.
Defendant, General Motors Corporation (GM), appeals by leave granted an award of workers’ compensation benefits to plaintiff Frances Calvert.
Plaintiff began working for GM on April 22, 1972. Shortly thereafter, she sustained a work-related injury and began to receive workers’ compensation benefits. On January 2, 1973, she returned to favored work at a GM production facility.
On September 29, 1977, plaintiff was arrested in the plant parking lot for carrying a concealed weapon. This constituted a violation of the plant rules, and plaintiff was accordingly discharged from her position with GM. Pursuant to the plant grievance procedure, she was reinstated on July 25, 1978.
Plaintiff filed a petition for a hearing on September 20, 1978, claiming benefits for the period between her discharge and her reinstatement. Plain tiff was the only witness at the hearing. She testified that she was arrested by a city police officer in the plant parking lot upon her arrival at work. She was carrying an unloaded pistol in her purse. At the time of the arrest, she held a permit to keep the pistol at home. She was later convicted of carrying a concealed weapon in connection with this incident. Defendant introduced into evidence the plant rules and the notice of violation thereof. The plant rules state in part:
"Buick Shop Rules
"Working at Buick is, in one sense, like driving an automobile. Rules are needed to avoid trouble. By understanding them you know what is expected of you and also what you can expect of others. By observing them you will enjoy your work more, gain the cooperation of your fellow employees and open the door of opportunity to you. They represent the best way for you, for your fellow employees and for your Company to carry on a satisfactory relationship. Here are a few rules that will help you avoid "collisions” at Buick. Committing any of the following will be grounds for disciplinary action ranging from reprimand to immediate discharge, depending upon the seriousness of the offense in the judgment of Management.
"Rules Relating to Illegal and Fraudulent Acts
"35. Possession of weapons on Company premises at any time.”
The hearing referee ruled that plaintiff was entitled to the benefits she claimed, on the ground that she was "[n]ot guilty of conduct that would cause the suspension of her compensation. Plaintiff is not guilty of an act of moral turpitude within the meaning of law. Possession of a gun cannot be construed to be 'base’, 'vile’ or *depraved’ conduct.” (Emphasis in original.)
The Workers’ Compensation Appeal Board affirmed. We set forth its opinion below:
"The facts of this case are not disputed: Plaintiff had a 1972 wrist injury at work, had surgery, and continued thereafter working on a restricted basis. On September 29, 1977, she was found to have an unloaded gun in her purse in defendant’s parking lot, was arrested and eventually convicted of carrying a concealed weapon. She was accordingly discharged for violating a plant rule, and reinstated on July 31, 1978, working uneventfully since.
"The sole issue is whether the act of carrying the concealed weapon (for which she had a permit had she kept it at home) which justified the discharge, also obviates the employer’s obligation to pay compensation to a partially disabled employee when work is withdrawn from her.
"The assigned judge ruled plaintiff’s conduct was not that of moral turpitude, and that it thus did not bar her receipt of compensation. The defendant appeals. We affirm.
"The question really posed involves the application of 'moral turpitude’ as that term arises from Todd v Hudson Motor Car Co, 328 Mich 283; 43 NW2d 854 (1950), specifically limited by the court to its facts, and Garrett v Chrysler Corp, 337 Mich 192; 59 NW2d 259 (1953). Legal dictionary discussion (Black’s) which defendant pejoratively asserts the judge relied upon, says the term is " 'commonly defined as an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow man or to society in general * * *’ and goes on to construct a line roughly between malum in se and malum prohibitum acts. However, defendant responds that Todd’s act of moral turpitude was simply gambling, a malum prohibitum act, and that imposition of a difficult standard of moral turpitude places the partially disabled employee effectively beyond normal employer sanctions for misbehav ior. Defendant further argues that a concealed weapons conviction is a more serious criminal charge than gambling (Todd), or drunkenness (Garrett).
"As we view this case, we agree with the judge that carrying an unloaded gun, no matter how illegal, is not a base, vile or depraved act. We note that Todd, Garrett, and DePew v GMC, Chevrolet, 1979 WCABO 2787 (drug possession in the plant) all involved acts both disruptive of the defendant’s operation and turpitudinous in nature. It does appear that such consideration was part of the motivation of the Court in Todd and Garrett, and the board panel in DePew.
"In this case the charge was criminally serious, but was not a malum in se act, and was not disruptive of the plant operation. That it may well have been grounds for discharge we do not doubt, but we do not believe it to have been a morally turpitudinous act as the Todd and Garrett Court meant that term.
"Thus we are simply left with a situation where a partially disabled employee did not have work within her capacity provided her, and for such period of time she is entitled to workers’ compensation (Powell v Casco Nelmor Corp, 406 Mich 332; 279 NW2d 769 [1979]).”
On appeal, defendant contends that the appeal board applied an erroneous standard in determining that plaintiff had not committed an act of misconduct sufficiently serious to warrant forfeiture of her right to workers’ compensation benefits. Hence, resolution of this case requires this Court to define the proper standard.
Thirty-two years ago, the Supreme Court handed down its decision in Todd v Hudson Motor Car Co, 328 Mich 283; 43 NW2d 854 (1950). The Todd Court had to decide "whether a partially disabled employee who had been given lighter work is entitled to be awarded compensation after his discharge for gambling”. Todd, supra, p 284. The Court held that the claimant was not entitled to benefits, and summarized its reasoning as follows:
"It is the duty of a disabled employee to co-operate not only by accepting tendered favored employment which he is physically able to perform (Kolenko v United States Rubber Products, Inc, 285 Mich 159 [280 NW 148 (1938)]), but also by refraining from criminal conduct destructive to the morale of his fellow employees and his employer’s business. Where he engages in criminal gambling activities while at work and is discharged for that cause, he will not be entitled to compensation for the resultant loss of earnings. His favored employment has ceased through his own volition and turpitude and not by reason of his accidental injury.
"In the case at bar, lighter work at earnings equal to or greater than received at the date of injury was made available to plaintiff. It was not through physical inability to perform the work, arbitrary caprice of the employer, or some ordinary cause of dismissal that this employment was terminated. Plaintiff was discharged for gambling activities forbidden by law, which were in no wise in furtherance of the duties of his employment.” Todd, supra, p 289.
Garrett v Chrysler Corp, 337 Mich 192; 59 NW2d 259 (1953), afforded the Supreme Court another opportunity to address this area of the law. In Garrett, the Court held that an employee’s discharge for "voluntary drunkenness” justified forfeiture of benefits:
"In the Todd Case, we say, at page 289:
" 'Where he [the disabled employee given favored employment] engages in criminal gambling activities while at work and is discharged for that cause, he will not be entitled to compensation for the resultant loss of earnings.’
"We consider that the instant case falls within the reasoning in the Todd Case. Plaintiff Garrett was being furnished with suitable employment at no wage loss. His voluntary drunkenness was the reason for his discharge, and not his physical condition resulting from his injuries. His several voluntary acts of drunkenness, indicating and caused by his moral turpitude, decreasing his efficiency as an employee, detrimental to the morale of his fellow employees and subversive of the employment, were the efficient cause of the termination of his employment.” Garrett, supra, p 194.
The foregoing passages from Todd and Garrett have given birth to the notion, reflected in the appeal board’s opinion in the instant case, that an employee discharged for misconduct does not forfeit thereby the right to benefits unless the misconduct involves "moral turpitude”.
In Bower v Whitehall Leather Co, 412 Mich 172, 187-189; 312 NW2d 640 (1981), the Supreme Court recognized the current state of confusion in the law but did not attempt to rectify the situation:
"To determine whether benefits should be awarded in the context of the special facts of these interruption-of-work cases, Michigan courts developed a corollary to the physically capable rule. The basic rule of law that emerges from these cases is that a supervening event causing cessation of an employee’s favored work will not terminate his right to benefits as long as the event is not under the employee’s control or attributable to him.
"Thus, interruptions of work caused by voluntary actions of the employee, such as abandonment of work to participate in a strike, Pigue, failure to return without explanation at the end of a leave of absence, Pulley v Detroit Engineering & Machine Co, 378 Mich 418; 145 NW2d 40 (1966), failure to notify the employer of medical restrictions, Ayoub v Ford Motor Co, 101 Mich App 740; 300 NW2d 508 (1980), or discharge because of gambling, Todd, or drunkenness, Garrett v Chrysler Corp, 337 Mich 192; 59 NW2d 259 (1953), results in a forfeiture of benefits.
"On the other hand, stoppage of favored work due to events the employee cannot control, such as being struck by an automobile, Lynch, mandatory retirement, Evans v United States Rubber Co, 379 Mich 457; 152 NW2d 641 (1967), or non-work-related health problems, e.g., insanity, Ward v Heth Brothers, 212 Mich 180; 180 NW 245 (1920); leprosy, Sotomayor v Ford Motor Co, 300 Mich 107; 1 NW2d 472 (1942), or cancer, Powell, does not defeat compensation.
We do not. believe that the Todd or Garrett Courts intended to say that an employee would not forfeit his benefits unless he committed an act involving "moral turpitude”. We regard all such references to "moral turpitude” as extraneous language — unnecessary to the decisions in those cases.
Moreover, even assuming arguendo that "moral turpitude” is the correct test, "moral turpitude”— a legal term of art — must be defined not by reference to legal dictionaries, but by reference to the factual background of the Todd and Garrett cases. Many distinguished members of the bar would surely be surprised to learn that the Supreme Court had authoritatively declared that consump tion of alcoholic beverages is an act of "baseness, vileness, or depravity”, Moreover, many churches conduct bingo games, and we somehow find ourselves unable to conclude that the Court intended to characterize those churches (or the Legislature, for creating the Michigan State Lottery) as base, vile or depraved.
We agree with much of the reasoning employed by another panel of this Court in Porter v Ford Motor Co, 109 Mich App 728, 732; 311 NW2d 458 (1981):
"If defendant can show that plaintiff was fired for violation of company rules which would normally result in termination of a nondisabled employee, and that the violation was not caused by plaintiff’s disability, the benefits may properly be denied.
"By establishing the second prong of this test, both parties are protected. The employee is guarded against termination or harassment leading to voluntary termination as a pretext to denial of benefits. The employer is insulated against unacceptable behavior which normally would result in termination of other employees. A disabled employee who can perform that favored work, yet violates company rules to the extent that discharge is justified, in actuality is refusing to perform the favored work and thus creating a bar to compensation.”
We hold that an employee who is discharged for just cause is not entitled to workers’ compensation benefits. We define "just cause”, however, to include only voluntary acts of the employee. Where the event that results in a violation of company rules is beyond the control of the employee — such as disease or accident — the employee shall be entitled to benefits even where the same violation of company rules would justify discharge of a nondisabled employee.
The perimeters of the "just cause”, standard are best defined through case-by-case adjudication. With respect to the instant case, however, we have no difficulty concluding that plaintiff was discharged for just cause. We find eminently reasonable GM’s desire to forbid the carrying of weapons within the confines of the workplace and to effectuate this policy through the sanction of dismissal.
The judgment of the Workers’ Compensation Appeal Board is reversed. No costs, a public question being involved.
"8 * * *
"However, although the general rule in interruption-of-work cases is stated in absolute terms, a number of exceptions should be noted. Unlike Dunavant, these exceptions have not been overruled.
"In several cases the courts have granted benefits where the interruption of favored work was, at least arguably, brought about by some voluntary act of the employee. In Neagle v State Library, 6 Mich App 148; 148 NW2d 507 (1967), the Court of Appeals upheld an award of benefits to an employee who was discharged from favored employment because of misconduct, specifically for taking long coffee breaks and having the odor of alcohol on his breath. The Court affirmed the decision of the appeal board, which had found that the employer had condoned the worker’s behavior for many years and, more importantly, that the claimant’s conduct was not so egregious as to require forfeiture of benefits. Similarly, though it reserved judgment on the question whether dismissal for reasons less than moral turpitude or illegality relieves an employer of its compensation liability, another Court of Appeals panel, in Tury v General Motors Corp, 80 Mich App 379; 264 NW2d 2 (1978), upheld an award of compensation for an employee discharged from lighter work for making a false statement about a co-worker. But see Scott v Kalamazoo College, 77 Mich App 194; 258 NW2d 191 (1977). * * *” ___
See the hearing referee’s opinion, supra.
Black’s Law Dictionary (1968), p 1160.
See, also, Scott v Kalamazoo College, 77 Mich App 194; 258 NW2d 191 (1977).
We wish to point out that we also disagree with the appeal board’s conclusion that plaintiffs possession of a weapon "was not disruptive of the plant operation”. | [
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Per Curiam.
Defendant appeals as of right the trial court’s April 7, 1981, writ of mandamus ordering defendant to award plaintiffs, retired fire fighters, the status of duty disability retirees under defendant’s pension plan. A nonjury trial was held on November 6, 1979, on stipulated facts and depositions. The trial judge issued an opinion on March 18, 1981. Plaintiffs appeal that portion of the trial court’s order ruling that defendant could seek reimbursement of allegedly overpaid pension benefits from plaintiffs. On April 27, 1981, the trial court issued an order staying proceedings pending this appeal.
Because of the similarity of the parties and the issues involved, this cause is released simultaneously with our opinion in Bannan v City of Saginaw.
Both plaintiffs were employed as fire fighters by defendant. Plaintiff Braun retired on February 20, 1973, as a nonduty. disability retiree because of a psychiatric disability. The Bureau of Workers’ Disability Compensation (bureau) awarded Braun benefits for total disability. Plaintiff Pendell was retired on November 21, 1975, as a nonduty disability retiree because of a heart condition. The bureau awarded him benefits for total disability. The bureau’s decision with respect to both plaintiffs became final on or about July 27, 1977, and defendant did not appeal.
Braun and Pendell applied for duty disability retirement benefits on August 8, and July 8, 1977, respectively, pursuant to §§ 123.1 and 124.2 of the Saginaw Administrative Code.
On or about August 5, 1977, defendant, under the decision and order of the bureau, made retroactive lump sum payments of workers’ compensation benefits to each plaintiff computed from the date of plaintiffs’ respective disabilities. Braun received $26,045.60 and Pendell received $11,890.46. The sums so received were deposited in plaintiffs’ attorney’s trustee account.
On September 12, 1977, defendant demanded that Braun pay back to the city $15,002.30 and Pendell pay back to the city $10,522.65. The demand for repayment was based on § 129 of the city’s pension ordinance which provides that any workers’ compensation benefits paid or payable to a member retirant "shall be offset against any pensions payable to such member”. During the period of time encompassed by the workers’ compensation benefits, Braun and Pendell received nonduty retirement pension benefits amounting, under § 129, to overpayments of $15,002.30 and $10,522.65, respectively. Both plaintiffs were advised they could either reimburse the city in the lump sums involved or have the entirety of their ongoing pension payments offset until the respective amount of overpayment has been recaptured. On November 28, 1977, plaintiffs repaid the sums demanded. Repayment was made in a lump sum from funds on deposit in plaintiffs’ attorney’s account.
On January 18, 1978, both plaintiffs, by and through legal counsel, appeared before defendant board and submitted documents pertaining to their applications for duty disability retirement benefits. Defendant board then and there deferred action on the pending applications and requested that a representative from the city attorney’s office attend the next meeting of defendant board in order "to discuss the issues” presented by the applications. Defendant board met in the city manager’s office in the City Hall, April 19, 1978, and discussed the pending applications. The records of the pension board do not show any notice to plaintiffs or their counsel. At the meeting the plaintiffs’ applications and supporting data were reviewed, following which, on motion made by the city manager, the board "voted to receive and file” the subject applications.
In July, 1978, plaintiffs filed a complaint in circuit court seeking reimbursement of the monies returned by them to the city and directing the trustees of defendant board to accord them duty disability retirement status. On March 18, 1981, the trial court issued its opinion deciding:
(1) That because the eligibility standards under the Worker’s Diability Compensation Act and the pension ordinance of the city are the same, the city could not come to a different conclusion, and therefore, the court would sign an order requiring defendant to accord plaintiffs the status of duty disability retirants and pay pension benefits in accordance therewith.
(2) That the overpaid pension benefits constituted a "debt” owed by plaintiffs to the city, which the city could not touch under § 821(1) of the Worker’s Disability Compensation Act, MCL 418.821(1); MSA 17.237(831X1). Therefore, the court indicated that it would sign, an order awarding plaintiffs the sums of money they had returned to the city.
(3) That while defendant had no right to reimbursement out of accrued workers’ compensation benefits, defendant could look to other funds for satisfaction or withhold further pension benefits until the entire overpayment had been recaptured.
On April 7, 1981, judgment was entered implementing the trial court’s decision as to items (1) and (2). Item (3) was never reduced to judgment. Defendant appeals the judgment as to items (1) and (2). Plaintiffs, as cross-appellants, appeal the court’s decision as to item (3).
In Part I of this opinion we address the issues raised on plaintiffs’ complaint for reimbursement and for classification as duty disability retirants. Part II of the opinion speaks to plaintiffs’ cross-appeal.
I
In Bannan v City of Saginaw, supra, this Court was confronted with the question of whether the offset of workers’ compensation benefits mandated by § 129 of the ordinance applied to both nonduty disability pensions and duty disability pensions. After analyzing the several sections involved, we rejected the city’s contention that § 129 mandates that all retiree pensions, whether nonduty or duty related, must be offset by the amount of workers’ compensation paid. Instead, we held that the offset applied to all nonduty related disability pensions but did not apply to duty disabled retirants who retire after attaining age 55.
At the time plaintiffs received their lump-sum retroactive workers’ compensation payments,plaintiffs were nonduty disabled retirants drawing nonduty disability pensions under § 122.1 of the ordinance. As such, pursuant to Bannan, supra, they were subject to the offset provisions of § 129. Therefore, the city (which apparently distributed the lump sums inadvertently), properly sought reimbursement and should have been reimbursed unless (1) under § 821(1) of the Worker’s Disability Compensation Act, the obligation constituted a "debt” which the city could not touch, or (2) the board improperly denied plaintiffs’ application for duty disability status. We consider those questions separately.
At the time this action was instituted, § 821(1) of the Worker’s Disability Compensation Act, MCL 418.821(1); MSA 17.237(821X1), read:
"No payment under this act shall be assignable or subject to attachment or garnishment or be held liable in any way for any debts. In case of insolvency every liability for compensation under this act shall constitute a first lien upon all the property of the employer liable therefor, paramount to all other claims or liens except for wages and taxes which lien shall be enforced by order of the court.” (Emphasis added.)
We find no case directly on point and, thus, the question raised is of first impression. However, the clear language of the statute refers to obligations owed to third parties to whom the recipient of the workers’ compensation benefits is already in debt. The statute was obviously designed to shield workers from claims of third-party creditors to whom the injured worker was then indebted. It does not refer to the unique situation involved herein, where the distribution of benefits itself creates the alleged "debt”. Plaintiffs had not assigned the payments received to third-party creditors nor had the city sued, attached, garnisheed, or otherwise seized the payments for obligations due the city by plaintiffs. Therefore, we hold that the trial court erred in holding that defendant board improperly demanded and improperly received repayment of the sums of $15,002.30 and $10,522.65.
This brings us to the second question involved. Did the trial court err in holding that plaintiffs were so clearly and patently entitled to duty disability status that mandamus could be issued by the court ordering defendant to approve plaintiffs’ applications for duty disability retirement status?
The basis for the trial court’s grant of mandamus was the trial court’s conclusion that the tests governing entitlement to workers’ compensation benefits and pension benefits under the ordinance were the same. The identical argument was made and rejected by one of the four plaintiffs in Bannan v City of Saginaw, supra. In that case, the same trial court as is involved here issued a writ of mandamus ordering the City of Saginaw to approve plaintiff Giffin’s petition for duty disability status. The trial court reasoned that if an applicant is awarded workers’ compensation benefits, the applicant automatically qualified for duty disability retirement benefits. This Court disagreed saying:
"There is no mandate in that section for the board to apply the decision of the separate administrative agency deciding Giffin’s workers’ compensation claim. Furthermore, the standards under § 123 and the WDCA are not precisely the same.
"The trial court seems to have assumed that if the applicant draws workers’ compensation, the applicant automatically qualifies for duty-disability retirement. However, § 122 of Ordinance D, by its express reference to § 129, contemplates that nonduty disability retirees may receive workers’ compensation benefits. It is then up to the board to determine whether an employee drawing workers’ compensation benefits falls within the §§ 121-122 nonduty disability or § 124 duty-disability provisions of the ordinance.” Bannan, p 326.
Section 123 of the city’s pension ordinance speaks in terms of proximate cause. The Supreme Court has disavowed the proximate cause test for workers’ compensation eligibility. Whetro v Awkerman, 383 Mich 235, 241; 174 NW2d 783 (1970). To be eligible for workers’ compensation benefits, a claimant must show his disability "arose out of and in the course of employment” and that the employment aggravated, accelerated, or combined with the disease to produce the disability. Deziel v Difco Laboratories, Inc (After Remand), 403 Mich 1, 25-33; 268 NW2d 1 (1978). Plaintiff Braun was totally disabled by reason of his mental disorder. Deziel, supra, rejected the proximate cause test for mental disorders. In summary, we find that under § 123 the city may impose a stricter standard for an award of duty disability benefits than is applied for workers’ compensation benefits. Thus, mandamus ordering plaintiffs to be classified for duty disability should not have been issued.
Plaintiffs claim that the board acted capriciously and arbitrarily at the meeting on April 10, 1978, when it voted to receive and file the applications. According to plaintiffs, the action of "receiving and filing” was a subterfuge to avoid a clear decision on the merits. A similar procedure was followed as to plaintiff Giffin in Bannan v City of Saginaw, supra. There defendant board reviewed the evidence submitted by Giffin before voting to "receive and file” Giffin’s application for reconsideration. There, as here, plaintiff’s counsel claimed the board’s action was capricious and arbitrary. This Court rejected that claim on grounds that prior to voting to receive and file, the board carefully reviewed the several medical reports, affidavits, and data submitted by counsel.
Similarly, in the instant case, prior to voting to receive and file, the board reviewed both the medical reports, laboratory studies, and relevant evidence initially considered when plaintiffs were granted nonduty disability status and the updated evidence submitted by plaintiffs’ counsel on January 18, 1978. Far from acting arbitrarily and capriciously, plaintiffs were allowed to present evidence in their behalf and were represented before the board at the January 18, 1978 meeting. Accordingly, consistent with our holding in Ban-nan, supra, we find the board did not act capriciously and arbitrarily in the instant case.
In summary, as to Part I of this opinion, we hold that the trial court erred in awarding to plaintiffs the sums of money plaintiffs had returned to the city and in ordering defendant to accord plaintiffs the status of duty disability retirants. The judgments entered to said effect are set aside and vacated.
II
Plaintiffs have cross-appealed that part of the trial court’s opinion which holds in effect that although defendant must return to Braun and Pendell the sums of $15,002.30 and $10,522.65, respectively, defendant may still seek reimbursement from other sources, including withholding sums due plaintiffs on their ongoing retirement benefits. As noted earlier, that portion of the trial court’s opinion was never reduced to judgment. Normally, a court speaks through its judgments— "mere opinions are not reviewable”. Michigamme Oil Co v Huron Valley Building & Savings Ass’n, 280 Mich 12, 15; 273 NW 329 (1937). Thus, on sound procedural grounds the issue is not before us.
Quite apart from the technical ground for not addressing the issue, sound policy exists for no appellate review. Plaintiffs have paid the sums involved to defendant and we have held that defendant need not tender such sums back to plaintiffs. Thus, the board has been paid in full and has no need to seek reimbursement through other sources. In short, the issue is moot.
The judgments entered in favor of plaintiffs are vacated and set aside. No costs, questions of public interest being involved.
Bannan v City of Saginaw, 120 Mich App 307; 328 NW2d 35 (1982).
"If the medical committee certifies to the board, by majority opinion, that such member is physically or mentally totally incapacitated for duty as a policeman or fireman in the employ of the city, and the board finds the disability to have occurred as the natural and proximate result of causes arising out of and in the course of employment with the city, such member shall be retired by the board upon written application filed with the board by said member or his department head. Upon his retirement he shall be entitled to a pension provided in Section 124.” (Emphasis added.) | [
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Danhof, C.J.
In these consolidated appeals, we are called upon to determine, inter alia, whether a recent amendment to MCL 418.801; MSA 17.237(801), requires a finding that interest on workers’ compensation awards made after January 1, 1982, be computed at a rate of 12% per annum with respect to payments which became due prior to the effective date of the amendment.
I. Facts
A. Furman
Plaintiff, Ralph Furman, suffered a work-related injury in 1961. He was awarded benefits for partial incapacity at that time. In 1973, he petitioned for total and permanent disability benefits alleging industrial loss of use of both legs and incurable insanity. He presented the testimony of a psychiatrist which supported his claim. Defendants failed to present any contradictory evidence, whereupon in January, 1973, the hearing referee made a finding of total and permanent disability on the basis of plaintiff’s incurable insanity. That decision was not appealed.
In June, 1976, plaintiff’s 800-week conclusive presumption period ended. MCL 418.351; MSA 17.237(351). At that time, defendants discontinued paying benefits, whereupon plaintiff petitioned for a factual determination of permanent and total disability. At the hearing, defendants presented expert testimony concerning plaintiffs mental condition. Plaintiff presented contradictory evidence. The hearing referee found that there had been no material change in plaintiff’s condition since the original determination of incurable insanity was made and that plaintiffs benefits should be resumed. Defendants appealed that decision to the Workers’ Compensation Appeal Board.
Defendants did not deny that plaintiff’s condition remained unchanged after the 1973 decision. Rather, they argued that the evidence conclusively established that plaintiff had never been incurably insane, under either the definition of insanity which existed at the time the 1973 award was entered or the definition which was established thereafter.
In a split decision, the board affirmed the hearing referee’s decision by an order entered on January 14, 1982.
B. Selk
Plaintiff Selk filed a petition for benefits on July 27, 1978, claiming that she injured her hips in a work-related incident in January, 1978, and that thereafter her condition was aggravated by a further work-related incident. Contradictory evidence was presented at the hearing with plaintiff and her expert testifying that her injury was work-related. Defendant’s expert testified that plaintiffs condition was related to her normal "non-work related” activities of life. The hearing referee found in favor of plaintiff and entered an open award and ordered the payment of back benefits. By order entered January 8, 1982, the board affirmed the decision of the hearing referee.
C. Kelly
Plaintiff Kelly suffered a work-related back injury in January, 1974. Thereafter, defendants voluntarily paid benefits until plaintiff returned to work in November, 1975. Plaintiff quit his job in April, 1976, and filed a petition for benefits on November 11, 1976. Following a hearing held on April 26, 1978, the hearing referee found that plaintiff suffered a work-related injury in 1974. However, he refused to award benefits because he found that plaintiff did not have a compensable injury on April 21, 1976, the last day that he worked.
By an order entered on January 15, 1982, the board reversed the hearing referee’s decision. It found that plaintiff aggravated his pre-existing back injury while performing work for defendants after returning to work in 1975. It further found that plaintiff suffered disabling neck pain and headaches which resulted from the back injury. Therefore, it entered a retroactive award of compensation benefits from April 21, 1976, and thereafter until further order of the board.
II. 12% Interest Award
In all three of these consolidated cases, the board entered its awards after January 1, 1982, the effective date of MCL 418.801(5); MSA 17.237(801X5), which provides:
"(5) When weekly compensation is paid pursuant to an award of a hearing referee, the board, or a court, interest on the compensation shall be paid at the rate of 12% per annum from the date each payment was due, until paid.”
The board held that the amendment requires the payment of 12% interest on the entire awards, despite the fact that the bulk of the awards involved payments which became due prior to the effective date of the amendment.
We are of the opinion that the board’s application of the amendment is correct. As noted above, the amendment provides, in part, that interest on a compensation award "shall be paid at the rate of 12% per annum from the date each payment was due”. MCL 418.801(1); MSA 17.237(801X1) provides that compensation becomes due and payable 14 days after the employer is notified of the disability. These two provisions read together compel a finding that the amendment clearly and unambiguously requires that for all awards made after January 1, 1982, the 12% interest rate be computed by referring to the date payment became due without regard to the fact that payment may have become due prior to January 1, 1982. Since the language of the statute is clear and unambiguous, further interpretation is unnecessary. Owendale-Gagetown School Dist v State Bd of Ed, 413 Mich 1, 8; 317 NW2d 529 (1982).
Defendants claim that to apply the statute in this manner violates the rule that statutes are to be applied prospectively only. We agree with defendants that, as a general rule, statutory enactments are to be applied only prospectively unless the Legislature indicates its intent that they be given retrospective effect. Hughes v Judges’ Retirement Bd, 407 Mich 75, 85; 282 NW2d 160 (1979). However, as discussed above, the language used by the Legislature in this legislation convinces us that the Legislature intended that the 12% interest rate be applied to awards made after the effective date of the amendment to payments which became due prior thereto.
Even if the language used did not constitute such a clear expression of the Legislature’s intent, we would still be compelled to conclude that the board’s application of the amendment was correct. In Ballog v Knight Newspapers, Inc, 381 Mich 527; 164 NW2d 19 (1969), plaintiff filed his complaint in a personal injury action before July 21, 1965, the effective date of the amendment to MCL 600.6013; MSA 27A.6013. Prior to the amendment, the statute provided that interest on a money judgment was to be calculated from the date of judgment. Thereafter, it provided that interest should be calculated from the date the complaint was filed. The trial court ruled that plaintiff was not entitled to interest from the date his complaint was filed because to permit such an award would involve retrospective application of the amendment. The Supreme Court reversed the trial court’s decision. It ruled that the amendment was remedial in nature and quoted from Hansen-Snyder Co v General Motors Corp, 371 Mich 480; 124 NW2d 286 (1963), in holding the following:
" '[Statutes related to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of a remedy or confirmation of rights already existing will, in the absence of language clearly showing a contrary intention, be held to operate retrospectively and apply to all actions accrued, pending or future, there being no vested right to keep a statutory procedural law unchanged and free from amendment.’ ” 381 Mich 533-534.
The Court ruled that, because the Legislature failed to express an intent that the statute apply only prospectively, the trial court erred in refusing to grant plaintiff interest on his judgment computed from the date that his complaint was filed.
In our opinion, the amendment relating to the payment of 12% interest on workers’ compensation awards is also remedial in nature. See, e.g., McAvoy v H B Sherman Co, 401 Mich 419, 457; 258 NW2d 414 (1977); Lahti v Fosterling, 257 Mich 578; 99 NW2d 490 (1959). When the Florida Legislature amended its Workers’ Compensation Act to provide for a change from 6% to 12% in the rate of interest payable, it expressly provided that the 12% rate was limited to "claims arising out of injuries which occur on or after” the effective date of the amendment. Section 440.20, Fla Statutes (1978 Supp); Myers v Carr Construction Co, 387 So 2d 417 (Fla App, 1980); E & A Concrete v Perry, 379 So 2d 1015 (Fla App, 1980). If the Michigan Legislature intended that this amendment be applied prospectively only, it would have so stated in express language as it did when it amended MCL 600.6013; MSA 27A.6013, to provide for a change from 6% to 12% in the rate of interest which is to be paid on judgments. Since it did not do so, the statute must be read as operating retrospectively.
Defendants contend that the Supreme Court’s decision in Hughes v Judges’ Retirement Bd, supra, supports their claim. Defendants’ reliance on Hughes, supra, is misplaced. Hughes did not hold that a remedial statute may not be applied retrospectively. Rather, it held that judges who retired prior to the 1974 amendment to the Judges’ Retirement Act, MCL 38.801 et seq.; MSA 27.125(1) et seq., were not precluded from receiving an increase in their pension benefits in accordance with the amendment merely because the Legislature did not indicate that the amendment was to be applied retrospectively. The amendment provided that benefits were to be computed by reference to the number of years of service of the retiree. Plaintiffs had completed the requisite number of years of service, but had completed that service prior to the time that the amendment became effective. The Court held that because plaintiffs requested increased benefits not from the date of their retirement, but rather from the effective date of the amendment, the rule against retrospective application of a statute was not violated. The fact that benefits were to be computed by reference to services performed prior to the effective date of the amendment did not alter that finding. The Court stated that the mere fact that some of the requisites for the application of a statute are drawn from a time antedating its passage does not constitute a retrospective statute. Hughes, supra, p 86.
The legislation involved in Hughes, supra, did not relate to remedies or modes of procedure. However, even assuming that our analysis of this legislation is governed by the Supreme Court’s decision in Hughes, that decision does not support defendants’ position. On the contrary, it supports a conclusion that the manner in which the board applied this amendment does not even involve retrospective application of the amendment. The 12% interest provision was not held to apply to awards entered prior to the effective date of the amendment. It was held to apply only to those awards which were made on or after January 1, 1982. The fact that the board ruled that for awards entered after that date the 12% interest rate is to be computed on the entire award, despite the fact that a portion of the award became due prior to January 1, 1982, does not require a finding of retrospective application. Rather, the date on which payment became due is merely an antecedent event by reference to which the amount of interest payable is computed. Hughes, supra, held that a statute cannot be regarded as operating retrospectively merely because it relates to an antecedent event.
Defendants next claim that to apply the 12% interest rate to payments which became due prior to the effective date of the statute constitutes an unconstitutional impairment of contractual obligations. US Const, art 1, § 10; Const 1963, art 1, § 10. Our disposition of this issue is controlled by McAvoy v H B Sherman Co, supra, wherein the Supreme Court quoted from Lahti v Fosterling, supra, in holding:
" 'In Matter of Schmidt v Wolf Contracting Co, 269 App Div 201; 55 NYS2d 162 [1945], the court considered the aims and purposes of the workmen’s compensation law in attempting to arrive at the intent of the legislature to apply a retroactive amendment to workmen injured prior to the effective date of the act, held the legislature had the right to so amend, and applied retrospectively the amended provisions. It further stated it was unreasonable to assume that the legislature intended that a workman who suffers injury on one date is any less affected than one injured on a subsequent date of the same year. With reference to the defense that the contract between the employer and its insurance carrier is impaired by such an amendment and that the statute violates the due process clauses of the State constitution and the Constitution of the United States, the court said (pp 207, 208):
" ' "That argument is without merit. * * *
" ' "Liability under the workmen’s compensation law is contractual, the amendment is not thereby violative of the provisions of the Constitution of the United States. The police power of the State may be exercised to affect the due process of law clause as well as the impairment of contract clause of the Federal Constitution.
"' "The subject matter of workmen’s compensation reposes within the control of the legislature.
"' "A law enacted pursuant to rightful authority is proper, and private contracts are entered into subject to that governmental authority.” ’ Lahti, supra, 592.” 401 Mich 419. See also Cosby v Pool, 36 Mich App 571; 194 NW2d 142 (1971).
Defendants next complain that if the Legislature intended to apply the 12% rate to payments which became due prior to the effective date of the amendment, such a provision violates due process. This contention is without merit. It is clear that the Legislature’s objective in insuring that claimants are fully compensated in the event that the employer fails to pay benefits when due is a legitimate one. McAvoy v H B Sherman Co, supra. Furthermore, we are unable to say that the rate chosen by the Legislature is not reasonably related to that objective. The fact that the application of the rate to payments which became due prior to the effective date of the amendment increases the burden upon defendants does not affect our decision. In Lahti v Fosterling, supra, the Supreme Court quoted from Matter of Hogan v Lawlor & Cavanaugh Co, 286 App Div 600; 146 NYS2d 119 (1955), in holding:
" 'The due process clause of the State and Federal Constitutions does not freeze the burden of compensation liability as of the date of the occurrence of an industrial accident, beyond the power of legislative change. In carrying out its social purpose, the legislature has the power to increase the burden on the employer for disability or expenses occurring or continuing after the date of the enactment of the amendatory statute, even though the accident which gave rise to the disability or expenses had occurred prior to that time.’ ” 357 Mich 591-592.
Defendants finally complain that the board is not possessed with judicial power and that, therefore, any attempt by it to interpret the amendment is invalid. In support of their contention, defendants rely on Solakis v Roberts, 395 Mich 13; 233 NW2d 1 (1975). In Solakis, the Supreme Court stated that, because the right to an award of compensation is contractual, the board was not empowered to set a rate of interest which is different from that which was provided in MCL 438.51; MSA 19.11. However, the Court was careful to point out that the Legislature is free to provide for such a change. That is precisely what has occurred here. Since we have already ruled that the board has correctly applied the amendment, we find defendants’ contention to be without merit.
We affirm the decision of the Workers’ Compensation Appeal Board on this issue.
III. Compensation
A. Furman
The dispute which exists with respect to the award of compensation to Furman relates to the meaning of MCL 418.351; MSA 17.237(351). It provides that after a determination of total disability is made, a conclusive presumption of disability remains in effect for a period of 800 weeks commencing from the date of injury. It further provides the following:
"The conclusive presumption of total and permanent disability shall not extend beyond 800 weeks from the date of injury and thereafter the question of permanent and total disability shall be determined in accordance with the fact, as the fact may be at that time.”
Defendants contend that after the 800-week pe riod expires, the issue of plaintiffs disability is subject to complete relitigation. The board ruled that the only issue which may be resolved at the second hearing is a determination concerning whether there has been a change in plaintiff’s condition between the time of the first decision and the time that the 800-week period expires.
As noted earlier, defendants do not contend that plaintiffs condition has changed since 1973. Rather, they contend that plaintiff has never been incurably insane. The board indicated that it tended to agree with defendants’ contention. However, it ruled that, because defendants failed to appeal that decision, it was bound by the 1973 determination.
After the parties’ briefs were filed in this appeal, the Supreme Court rendered its decision in Ferns v Russ Graham Shell Service, 413 Mich 550; 321 NW2d 380 (1982). In Ferns, supra, plaintiff was injured in the course of his employment and was awarded total and permanent disability benefits. After the expiration of the 800-week period, defendants terminated benefits. Plaintiffs request for additional benefits was granted by the hearing referee. The board affirmed that determination, holding that defendant’s failure to show that defendant’s condition had changed required such a finding. In affirming the board’s determination, the Supreme Court ruled:
"We believe that the WCAB has accurately assessed the legislative intention in this regard. MCL 418.351(1); MSA 17.237(351X1) specifically provides that: 'Compensation shall be paid for the duration of the disability’. An employee who is found to be totally and permanently disabled is entitled to an 800-week 'conclusive presumption’ that he or she remains so disabled. However, on expiration of that 800-week period, the em ployee simply loses the benefit of the conclusive presumption.
"Once the legislatively-bestowed benefit of the conclusive presumption has terminated, the employer and its insurer (and indeed insofar as differential benefits are concerned the Second Injury Fund) are free, as noted by the WCAB, to 'petition for a determination of rights alleging that due to a change of condition plaintiff no longer remains permanently and totally disabled’. Clearly the employer and its insurer and the Second Injury Fund must bear the burden of establishing that the employee, who has previously been determined to be totally and permanently disabled is no longer so disabled.” Ferns, supra, p 555.
In view of the foregoing, we are of the opinion that the burden was on defendants to establish that plaintiffs condition changed between the date of the original award and the date that the board entered its decision. Defendants were not entitled to relitigate the issue of whether plaintiff was incurably insane at the time the 1973 award was entered. See, also, Gose v Monroe Auto Equipment Co, 409 Mich 147; 294 NW2d 165 (1980).
Defendants contend that, even if they were required to show a change in circumstances, such a change was shown because the legal definition of incurable insanity, for workers’ compensation claims purposes, changed between the time the 1973 award was entered and the date that the board entered its decision in this case. At the time that the 1973 award was entered, decisions concerning claims of incurable insanity were governed by the definition stated in Sprute v Herlihy Mid-Continent Co, 32 Mich App 574; 189 NW2d 89 (1971). In 1978, the Supreme Court overruled Sprute and announced a new more restrictive standard. Redfern v Sparks-Withington Co, 403 Mich 63; 268 NW2d 28 (1978). Although we tend to agree that plaintiff is not incurably insane applying the Redfern test, we cannot agree that the intervening change in the law permits the issue of plaintiff’s condition to be relitigated.
In Hlady v Wolverine Bolt Co, 393 Mich 368; 224 NW2d 856 (1975), the Supreme Court ruled that the principles of res judicata preclude the subsequent relitigation of an issue in the context of a workers’ compensation action even if there is a change in the law in the intervening period unless there is also an accompanying change in plaintiff’s physical or mental condition. That decision was reaffirmed by the Court’s decision in Gose v Monroe Auto Equipment Co, supra, p 161. Also, as noted earlier, the Court in Ferns, supra, held that defendant’s failure to establish a change in plaintiff’s "condition” following the expiration of the 800-week period precludes the board from ordering that plaintiff’s benefits be terminated.
Therefore, we find it unnecessary to determine whether the Redfern test or the Sprute test would have applied if defendants had shown that plaintiff’s condition changed between 1973 and the date the board entered its decision. Since no change of condition was shown, the intervening change in the law could not be advanced as a ground to defeat plaintiff’s claim. The principles of res judicata bar defendants from relitigating this issue. The board’s decision is affirmed.
B. Selk
Selk claimed that she had a bursitis condition in her hips which was aggravated by her employment and which was of a disabling nature. Defendant claims that plaintiff failed to satisfy her burden of proving that the condition was work-related. The hearing referee found in favor of plaintiff. The board affirmed that finding.
It is well-established that findings of fact in workers’ compensation proceedings are conclusive in the absence of fraud. Const 1963, art 6, § 28. Under this standard of review, the findings of the board are conclusive if there is any evidence to support them. Kostamo v Marquette Iron Mining Co, 405 Mich 105, 135-136; 274 NW2d 411 (1979).
In order to establish that an injury is work-related, the claimant must show a reasonable relation of cause and effect between her work and the injury. If the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability, the claimant is entitled to compensation. Kostamo, supra; Gibbs v General Motors Corp, 114 Mich App 1; 318 NW2d 565 (1982).
Plaintiff’s expert, Dr. Raymond Lipton, testified that plaintiff was suffering from chronic bursitis of the hips with a calcific deposit, on her right side. He stated that it was much more likely that her employment, rather than some other activity, caused the bursitis. Plaintiff testified that the nature of her work caused her to continuously bump her hips into objects in the workplace which resulted in her suffering severe pain. She claimed that, on one occasion, she was bumped quite severely and that thereafter she began experiencing constant pain on her right hip. Dr. John Corbett, defendant’s expert, testified that he believed that plaintiff’s condition was not caused by her employment. However, he admitted that her work activity could have aggravated her bursitis.
In our opinion, the board’s findings of fact were supported by evidence and are affirmed.
C. Kelly
Defendants claim that the board’s finding of disability with respect to Kelly is unsupported by medical testimony and that due to the complex nature of plaintiff’s complaint plaintiff’s lay testimony was not sufficient to support the board’s finding.
We find it unnecessary to determine whether the board could have relied exclusively on plaintiff’s testimony in resolving the issue of causation, because it is clear that the board’s finding was supported by the testimony of plaintiff’s expert witness, Dr. Donald Eck, and that the board relied on that testimony in making its finding.
Dr. Eck testified that he first examined plaintiff in April, 1974, and that he diagnosed plaintiff as suffering from a lumbosacral instability. Defendants do not deny that that condition was caused by a work-related accident which occurred in January, 1974. Dr. Eck noted that before plaintiff quit his job in April, 1976, he complained frequently about neck and headache pains. Dr. Eck stated that plaintiff’s disability was caused by both his back pain and his headaches. Furthermore, he testified that plaintiff’s neck pains are a result of an ascending spinal spasm.
In making its determination, the board indicated that it could rely exclusively on plaintiff’s testimony in resolving the issue of whether plaintiff’s injury was work-related. However, the board further indicated that plaintiff’s testimony was consistent with the testimony of Dr. Eck and that the best medical evidence was that which was presented by Dr. Eck.
In view of the foregoing, we are satisfied that the board based its decision on both the testimony of plaintiff and the testimony of Dr. Eck. Furthermore, we are satisfied that the testimony provided evidence to support the board’s finding. Kostamo, supra.
We also find without merit defendants’ claim that the board’s findings were inadequate. The board’s findings provided a sufficiently detailed basis for this Court to adequately perform its appellate function. Nunn v George A Cantrick Co, Inc, 113 Mich App 486, 494; 317 NW2d 331 (1982).
The board’s findings are affirmed.
IV. Summary
We affirm the ruling of the Workers’ Compensation Appeal Board that the 12% interest provision contained in MCL 418.801(5); MSA 17.237(801)(5) applies to all awards made after January 1, 1982. We also affirm the board’s decisions regarding compensation in all three cases. No costs, a question of statutory construction being central to resolution of this case.
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Per Curiam.
Following a jury trial conducted April 17, 1979, through April 20, 1979, in the Livingston County Circuit Court, defendant was found liable for medical malpractice in his diagnosis and treatment of plaintiff Loriann Clapham. The combined jury verdict in favor of plaintiffs was $133,700. Of this total, plaintiff Loriann Clap-ham was awarded $69,000 for personal damages. Additionally $57,000 was awarded for the expense of raising Joel Clapham, Loriann’s child, who was born following defendant’s failure to diagnose Loriann’s pregnancy. Each of these awards was reduced by 30% based upon Loriann’s comparative negligence, resulting in an award of $48,300 for personal damages and $39,900 to be held in trust for the expenses incurred in the rearing of the baby. Plaintiff Nancy Clapham, Loriann’s mother, received an award of $64,000, reduced by 65% based on her negligence, leaving a net total of $22,400. Loriann’s father, plaintiff Samuel Clap-ham, was awarded $35,000, with a 34% reduction due to his comparative negligence, leaving $23,100.
Loriann Clapham was 14 years old when her mother took her to defendant for a medical examination. Loriann had been complaining of dizzy spells, fainting, and missed menstrual periods. According to both Loriann and Nancy Clapham, defendant said that these symptoms were a manifestation of obesity and low blood pressure. In fact, Loriann was pregnant. Loriann saw defendant for medical services six times between October 14, 1974, and January 28, 1975. Mrs. Clapham accom panied her daughter to each appointment except one. At no time was either mother or daughter informed that Loriann might be pregnant.
According to defendant, questions were specifically posed to Loriann concerning problems with menstrual periods. However, both she and Mrs. Clapham indicated there were no problems in this regard. Defendant further denied he had ever been informed that Loriann had missed menstrual periods.
The videotaped deposition testimony of Dr. Kalman Gold, who stated that he was a specialist in obstetrics and gynecology, was shown to the jury. He stated that although his practice was based in Toledo, Ohio, he was familiar with the standard of care for a general practitioner in obstetrical care in Michigan. In his opinion, it constituted a breach of this standard of care to fail to conduct tests ruling out the possibility of pregnancy when a patient with Loriann’s symptoms seeks treatment.
Dr. Avelardo Bustillo, a general practitioner and defendant’s associate, examined Loriann on three occasions. After defendant was served with the complaint in this matter, he told Dr. Bustillo that he had suspected pregnancy during Loriann’s initial examination. Bustillo indicated that, if defendant had told him pregnancy was suspected, he would have requested Loriann’s permission to conduct specific pregnancy tests.
Loriann indicated that at the time of trial she was employed at a fast-food restaurant and was making minimum wage. Prior to her pregnancy, she intended to get training to become a registered nurse. However, when the baby was born, she dropped out of high school. Loriann also stated that, had she known she was pregnant, she would have sought an abortion. Other testimony was presented regarding the emotional and financial strain on a family where an unmarried, teenage daughter bears a child.
The issues raised on appeal fall into two basic categories — those which primarily concern the question of liability and those which primarily impact on the issue of damages. We will consider the problem of defendant’s liability first.
Defendant argues that the trial court committed reversible error by permitting the plaintiffs to amend their complaint at trial to allege as a basis for relief the deprivation of Loriann’s right to terminate her pregnancy. Michigan’s court rule regarding the amendment of pleadings provides for a liberal handling of requests to amend. GCR 1963, 118.1, Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 656-657; 213 NW2d 134 (1973). A decision to permit an amendment is one within the trial court’s discretion and will not be upset absent an abuse of discretion. Worth v Dortman, 94 Mich App 103, 113; 288 NW2d 603 (1979).
In the case at bar, the amendment offered did not differ substantially from the theories previously asserted. The defendant could not have been surprised by the amendment, given Loriann’s deposition testimony that she would have preferred an abortion had she been aware of her condition. The trial court specifically found that defendant was not surprised. Defendant is unable to show any specific prejudice resulting from the amendment. For these reasons, the trial court’s decision permitting the amendment did not constitute an abuse of discretion.
Defendant also argues that the trial court’s instruction on the standard of care was reversibly improper. It is alleged that the instruction was contrary to Michigan’s "locality rule” which pro vides that a general practitioner’s conduct will be measured by the standard of professional competence existing in his or similarly situated communities in light of the state of the art. At present, Michigan continues to adhere to the locality rule although its continuing vitality is in some doubt. See, Siirila v Barrios, 398 Mich 576; 248 NW2d 171 (1976).
In the instant case, the trial court instructed:
"A general practitioner is under a duty to use that degree of care and skill which is expected of a reasonably competent practitioner of the same class acting under the same or similar circumstances.
"In considering whether the defendant, Dr. Yanga, practiced within that standard for the purposes of this case, you may consider whether Dr. Yanga should have diagnosed pregnancy in this case based upon the general state of knowledge on the subject of pregnancy diagnosis within the medical community of general practitioners as a whole.”
It is arguable whether this instruction should fail under the locality rule. The court’s reference in the charge to a practitioner acting under "the same or similar circumstances” would embody the same community or similar communities as one of the circumstances for the jury to consider in determining if the standard of care was breached.
Assuming that the instruction was erroneous, we are convinced that the error does not constitute grounds for reversal. The only direct testimony concerning the standard of care was that of Dr. Gold. This testimony was properly limited to the applicable locality in which defendant practices. Thus, the only evidence upon which the jury could have premised its conclusion that the standard of care was breached was the testimony specifically tied to the appropriate locale. Consequently, it is difficult to see how defendant was prejudiced by the instruction, even if it was erroneous. It is an elementary principle of Michigan jurisprudence that a defect in something done by the court is not grounds for granting a new trial unless this is "inconsistent with substantial justice”. GCR 1963, 529.1.
In LeBlanc v Lentini, 82 Mich App 5, 17-19; 266 NW2d 643 (1978), lv den 403 Mich 807 (1978), this Court recognized that in some cases local standards might be uniform throughout the United States. After reaching this conclusion, the Court upheld a decision to allow a medical expert to testify on the standard of care in the local area, even though he was unfamiliar with the locale. The record in this case suggests that such a nationwide locality standard exists in respect to the tests and treatment to be performed on one who has missed menstrual periods and complains of dizzy spells and fainting. This being the case, it would make no difference if the standard of care instruction was tied to a specific locality or explicitly posited as having nationwide applicability. While the latter instruction would be technically defective, since the substantive standard is the same, it would be unnecessary and inappropriate to reverse the case for a new trial._
We also note that, while expert testimony is essential to establish that a doctor has violated the requisite standard of care in most cases, if the physician’s conduct is such that a layperson could ascertain that the medical practitioner’s acts were negligent, such testimony is not needed. Heins v Synkonis, 58 Mich App 119, 122; 227 NW2d 247 (1975), Murphy v Sobel, 66 Mich App 122, 124; 238 NW2d 547 (1975), Lince v Monson, 363 Mich 135, 141; 108 NW2d 845 (1961). We conclude that a jury could find, without specific testimony on the standard of care, that it is negligent not to give a patient who complains of the symptoms experienced by Loriann a pregnancy test. This is particularly true in light of defendant’s admission that he suspected from the initial visit that Loriann was pregnant. We note that Mrs. Clapham testified she assumed a pregnancy test had been conducted since the probable cause of her daughter’s condition was obvious. However, when defendant said nothing about the possibility of pregnancy, she did not concern herself with it.
Defendant also charges that the trial court committed reversible error in giving a modified SJI 10:07. Defendant contends that the instruction was inapplicable in this case. SJI 10:07 recognizes that a child will not exercise the same degree of care for himself as will an adult. In Moning v Alfono, 400 Mich 425, 446; 254 NW2d 759 (1977), in the context of a claim of negligent entrustment of a dangerous instrumentality to a child, the Court stated:
"[A] reasonable person will have in mind the immaturity, inexperience and carelessness of children. If, taking those traits into account, a reasonable person would recognize that his conduct involves a risk of creating an invasion of the child’s or some other person’s interest, he is required to recognize that his conduct does involve such a risk. 'He should realize that the inexperience and immaturity of young children may lead them to act innocently in a way which an adult would recognize as culpably careless, and that older children are peculiarly prone to conduct which they themselves recognize as careless or even reckless.’ 2 Restatement, supra, § 290, comment k.”
In our opinion, the same rationale is applicable to medical malpractice actions which involve a question of whether the standard of care has been breached. In this case, Dr. Yanga’s deposition was received into evidence. In his deposition, Dr. Yanga stated that it was not unusual for some patients, particularly minor patients, to attempt to hide their pregnancies. As such, the modified SJI 10:07 was germane to this matter.
Prior to submission of the case to the jury, defendant moved for a mistrial alleging that: (1) the jury was discussing the case prior to its conclusion; and (2) plaintiffs were incorrectly permitted to reopen their proofs. Defendant contends that the trial court’s decision to deny the motion constitutes reversible error.
The decision to permit a party to reopen its proofs prior to submission of the case to the jury is one entrusted to the sound discretion of the trial court. Bonner v Ames, 356 Mich 537, 541; 97 NW2d 87 (1959), Klee v Light, 360 Mich 419, 424; 104 NW2d 207 (1960). In the instant case, the judge permitted the proofs to be reopened after a juror submitted a note to him during a recess which posed questions going to the issue of Loriann’s negligence. The court specifically stated that, "I feel that it is in the best interest of the trial of this particular case that the jurors have legitimate questions answered as they have put forward”. We believe that the trial court’s stated rationale for allowing the proofs to be reopened was a sufficient reason on the facts of this case and did not constitute an abuse of discretion.
Defendant’s contention that the jury discussed the case prior to the conclusion of the trial is based on the fact that several questions were forthcoming from individual jurors during the course of trial. However, this does not prove that the jurors discussed the case among themselves. The trial court specifically charged the jurors in its preliminary instructions that if any of them had a question, he or she should write it out and give it to the court officer. Nothing which happened during the course of the proceedings leads us to believe that the jury was not simply following this instruction. Moreover, the trial court admonished the jurors not to discuss the case among themselves. The absence of evidence indicating that conversations actually occurred prohibits a finding of reversible error. People v Scott, 55 Mich App 739, 746; 223 NW2d 330 (1974).
We now turn to resolution of the issues raised concerning the assessment of damages. Defendant first contends that the jury was allowed to award damages to plaintiff Loriann for the future care of Joel when, in fact, the child was being provided for by plaintiffs Samuel and Nancy Clapham. Furthermore, defendant states that the court’s instructions also allowed Samuel and Nancy to be awarded monies for the child’s future care. Thus, the instructions are alleged to have allowed the jury to impose duplicative awards.
An examination of the record shows this claim to be without merit. Loriann did care for her child for a period of 16 months. The court’s instructions allowed the jury only to award damages to Loriann for the child’s care up to the present time. The instructions permitted the jury to award Loriann’s parents, the current guardians of the child, monies to compensate them for the care of the boy in the future. The charge did not allow duplication of the judgment for either past or future expenses incurred in the rearing of the boy. Consequently, the instructions were proper.
Defendant next contends that it was error for the court to charge the jury that it could award Samuel and Nancy Clapham damages to compensate them for the impairment of their lifestyle, costs of raising Loriann’s son, and Mrs. Clapham’s loss of earning capacity as they voluntarily assumed the duties of guardianship. The trial court agreed that Samuel and Nancy Clapham should not be able to personally profit from an award designed to provide funds for the upbringing of the child. Consequently, the judge determined that any such award returned by the jury would be placed in trust for the rearing of Joel.
We begin our analysis of this issue by holding that Mr. and Mrs. Clapham did not lose their rights to receive damages because they voluntarily assumed legal guardianship of their daughter’s offspring. Although this burden was "voluntarily assumed” in a strictly legal sense, it takes no legal scholarship to see the dubiousness in the claimed voluntariness. Once their 15-year-old daughter proved herself incapable of caring for the infant, the Claphams had the choice of acquiescing in Loriann’s decision to adopt Joel out, an alternative which would undoubtedly have been emotionally and morally wrong for them and most grandparents similarly situated, or caring for the baby themselves. Unless a decision is between alterna tives which ordinary persons would recognize as reasonable, a party is not required to mitigate damages by "choosing” the course which would be the most efficient in minimizing damages. Troppi v Scarf, 31 Mich App 240, 258; 187 NW2d 511 (1971), lv den 385 Mich 753 (1971). Cf., Romankewiz v Black, 16 Mich App 119; 167 NW2d 606 (1969). Plaintiffs were not faced with a choice most ordinary, similarly situated individuals would consider reasonable. Plaintiffs could have chosen not to care for their grandchild and witness the continuing disintegration of their family, or assume guardianship. For most, this constitutes no real choice.
We are also convinced that allowing grandparents to receive damages where they have assumed the responsibility of rearing their minor daughter’s child fosters important state policy. The Child Custody Act of 1970 provides that custody decisions are to be made to promote the "best interests of the child”. MCL 722.23; MSA 25.312(3). Although there was no custody battle in this case, guardianship with the grandparents was a clearly superior placement alternative to adoption. At the time Joel would have been put up for adoption, he was 16 months old. It is more difficult to place infants at this age than newborns, and it is possible that no satisfactory adoptive placement could have been achieved. Moreover, the evidence shows that during the period Loriann was caring for Joel, Mr. and Mrs. Clapham were actively involved with the baby. During some of the period of Loriann’s custody of the child, she and her son actually lived in the Clapham home. By 16 months of age, bonding between the baby and his mother and grandparents had already occurred. The psychological impact on the child of ripping him from his grand parents and mother, who, however immature and unable to cope with parenthood, was a familiar source of comfort and care, and placing him in alien surroundings, could be a devastating blow to the boy’s young psyche. This early rejection could haunt him for life, even assuming a suitable adoptive home was found. See, Goldstein, Freud, and Solnit, Beyond the Best Interests of the Child (MacMillan Publishing Co, 1973). To absolutely deprive grandparents of damages in circumstances such as these would weaken the primary state goal in child custody. Grandparents who would prefer to care for a minor daughter’s baby, rather than have the child adopted out, might be economically forced to allow the latter to occur. In the great majority of cases this would be bad for the grandparents, mother, and child. Indeed, the only individual to profit from such a holding would be the defendant doctor who was allowed to escape the consequences of his negligence._
The only thing novel about this case is our holding that the grandparents of a minor child’s baby may obtain damages where they provide for the infant’s care, just as the baby’s parents might have. See, Troppi, supra, Stephens v Spiwak, 61 Mich App 647; 233 NW2d 124 (1975), lv den 395 Mich 761 (1975), Green v Sudakin, 81 Mich App 545; 265 NW2d 411 (1978), lv den 403 Mich 855 (1978). We believe this is a sound and minor extension of existing precedent. A child’s grandparents cannot be treated like total strangers in respect to a claim such as the one presented here.
On appeal, defendant notes that Troppi and its progeny apply the so-called benefits rule in assessing damages. This rule provides that where a benefit, as well as a harm, is conferred by a tortfeasor, the benefits must be weighed against the elements of claimed damage. In the instant case, the trial court did not so instruct the jury. However, defendant never requested that a "benefits rule” instruction be given nor did he object to the omission. Instead, defendant simply argued that the grandparents were not entitled to damages because they voluntarily assumed guardianship. Even on appeal defendant does not directly argue that the failure to give such an instruction should be a basis for reversal. As such, any question about the benefits rule is not preserved for appeal.
Defendant lastly contends that the court’s instruction indicating that any damages assessed for the rearing of the baby would be placed in trust for this purpose constituted error in that it recognized a "wrongful life” action. We disagree. As noted previously, Michigan has recognized that liability may be imposed for the child-rearing costs of a youngster born due to a defendant’s negli gence. The monies to be placed in trust were intended to be used for the expense of raising Joel. The award did not constitute a judgment directly in the child’s favor. The infant has no right to control these funds or to spend them as he sees fit. The power of disposition rests in the grandparents with the condition that they be used to provide for Joel during his minority — precisely the reason damages for the child-rearing costs of a youngster are ever recoverable.
Affirmed.
Although we reluctantly follow the locality rule, we agree with Justices Williams and Levin in Siirila that the locality rule no longer makes any sense. The rule seems to be a throwback to the days when it was difficult to rapidly disseminate the latest medical knowledge.
Dr. Bustillo indirectly gave testimony relevant to the standard of care when he stated that had he been aware of defendant’s suspicion that Loriann was pregnant, he would have asked permission to conduct a pregnancy test. Bustillo, who was defendant’s associate, gave particularly damaging testimony. It suggested that defendant breached the standard of care routinely imposed in his own practice. It is difficult to imagine a much narrower "locality”.
The central thesis of Beyond the Best Interests of the Child is that placement decisions should safeguard the child’s need for continuity of relationship. The authors state:
"Physical, emotional, intellectual, social, and moral growth does not happen without causing the child inevitable internal difficulties. The instability of all mental processes during the period of development needs to be offset by stability and uninterrupted support from external sources. Smooth growth is arrested or disrupted when upheavals and changes in the external world are added to the internal ones.” Op. cit., 32.
The authors also note that if adoption occurs after the early weeks of an infant’s life the chances of the adoptive parents becoming the "psychological parents” (the caretakers whom the child comes to trust as the source of both physical and emotional support) vastly diminishes.
State policy also favors an active involvement between a child and his grandparents. A revision to MCL 722.27; MSA 25.312(7), approved June 18, 1980, to take immediate effect, allows the circuit courts to provide for reasonable visitation of a child by his maternal or paternal grandparents. Given this expression of legislative policy, we believe that we cannot permissibly decide this case in a way which would tend to weaken the bonds and commitment between grandparents and grandchild. The law should not act to the detriment of familial relationships. | [
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Per Curiam.
Plaintiff, Jane E. Irish, was granted a judgment of divorce on September 25, 1978. Custody of the parties’ minor children was awarded to defendant, Dwain K. Irish, Jr., while plaintiff was given the right of visitation every other weekend, one day per week, one week per month in June, July, and August, and on certain alternate holidays. On March 14, 1979, plaintiff filed a petition requesting modification of visitation on the ground that the defendant’s move to a location approximately 80 miles from plaintiff’s home had infringed upon her rights to see the children. In answer, defendant alleged that plaintiff was engaged in a lesbian relationship, and defendant asked that only nonovernight visits be permitted between plaintiff and the children while the alleged relationship continued.
At the hearing on plaintiff’s petition, plaintiff admitted the existence of a lesbian relationship with a woman who resided with her. Plaintiff testified that the relationship was stable and that it continued in private during the children’s visits, though plaintiff denied ever having sexual relations with her lover during the children’s visitation periods.
Defendant testified at the hearing that he would have no objection to the change in visitation sought by plaintiff if plaintiff were to discontinue her lesbian relationship. Testimony was also given by the friend of the court who stated that he believed that, if the sexual nature of the relation ship was openly expressed in the presence of the children, it would have a harmful effect on the children.
The trial court found that plaintiff’s lesbian relationship was detrimental to the health and upbringing of the parties’ children, especially to the parties’ son who was about eight years old, and that it would only be a matter of time until the younger child, a girl of about five years old, became aware of the relationship. The court noted that it had no objection to the plaintiff’s lesbian relationship, provided that the relationship was not exercised in the children’s presence. The trial court’s final order continued visitation as it existed but provided that while the children were visiting plaintiff no intimate sexual conduct was to take place between plaintiff and her lover in the children’s presence and that the children could not remain overnight if plaintiff’s lover were present overnight. Plaintiff appeals, and we affirm.
Plaintiff maintains that the trial court erred in restricting plaintiff’s visitation rights based solely on the fact that plaintiff is a lesbian. Plaintiff asserts that this fact was well-known to all involved in the initial custody proceedings and that it cannot, therefore, constitute clear and convincing evidence of a change in the children’s established custodial environment which, in the best interest of the children, would require a modification of visitation pursuant to §7(c) of the Child Custody Act. MCL 722.21 et seq.; MSA 25.312(1) et seq. Plaintiff also challenges the failure of the trial court to make specific findings of fact on the factors set forth in §3 of the act, MCL 722.23; MSA 25.312(3).
Prior to addressing plaintiff’s specific allegations of error we consider the threshold question of whether the provisions of the Child Custody Act cited by plaintiff are relevant to this proceeding. Initially, we note that, though the act addresses itself to "circuit court child custody disputes and actions” (emphasis added), MCL 722.26; MSA 25.312(6), this Court has held that the act also applies to disputes over child visitation. Cooper v Cooper, 93 Mich App 220, 228; 285 NW2d 819 (1979), Stevens v Stevens, 86 Mich App 258, 270; 273 NW2d 490 (1978), Henshaw v Henshaw, 83 Mich App 68, 72; 268 NW2d 289 (1978), Stevenson v Stevenson, 74 Mich App 656, 658; 254 NW2d 337 (1977).
Section 7(c) of the act, MCL 722.27(c); MSA 25.312(7)(c), provides that a modification which changes the "established custodial environment” of a child cannot be made unless there is "clear and convincing evidence that it [the modification] is in the best interest of the child”. Plaintiff has argued that the modification of plaintiff’s visitation rights was made without such clear and convincing evidence. The "clear and convincing” standard of §7(c) is applicable only where there is a change in a child’s established custodial environment. Because we are persuaded that the modification of plaintiff’s visitation rights did not constitute such a change, we find that the clear and convincing standard need not have been met. For the most part, plaintiff’s visitation rights were left untouched. If the environment of the children was changed at all by the court’s order, it was simply that the children would have less contact with their mother’s lover. Based on the mores of our society, we do not consider the continued presence of the lover of the children’s mother as an element of the children’s custodial environment which must be preserved and protected by the high standard of proof required by § 7(c).
Having found that the evidence need not have met the clear and convincing standard of § 7(c), we apply the less rigid "preponderance” standard and find that the trial court’s action was based on sufficient evidence. The provisions which the court added to plaintiffs visitation rights were reasonably drawn to prevent a situation which the friend of the court had indicated would be harmful to the children.
Section 3, MCL 722.23; MSA 25.312(3), sets forth ten factors which embody the "best interest” of a child which the trial court must consider in making an award of custody. Plaintiff’s second contention is that error occurred when the trial court failed to articulate seriatim findings of fact on each of these factors.
At the hearing on plaintiff’s petition, plaintiff began to testify regarding these factors, but her testimony was interrupted by the trial court who secured from defendant a stipulation that plaintiff was providing the children with all their physical necessities during their visits. The trial court, with the apparent acquiescence of plaintiff, limited the testimony to the issue which was contested by the parties. As plaintiffs petition was for a modification of visitation rights and not directed to the issue of custody, and as plaintiff apparently acquiesced in the limitation of testimony, we do not find that it was reversible error for the trial court to have focused solely on the contested issue.
We have reviewed the other matters raised by plaintiff and find that they do not require reversal under the standard of review enunciated in MCL 722.28; MSA 25.312(8).
Affirmed. | [
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R. B. Martin, J.
The defendant was charged with an assault with intent to commit great bodily harm less than murder. MCL 750.84; MSA 28.279. On April 22, 1980, he was convicted by a jury of felonious assault. MCL 750.82; MSA 28.277. The trial was hotly contested, and there seems to be more than the usual wrangling over matters not always material to the discovery of whether or not the charge placed against the defendant was true. We will not comment on the bickering of counsel but believe several of defendant’s points on appeal should be noted. Others need no comment.
The people claim the defendant had purposefully shot Michael Brooks with a shotgun. During the trial, a witness called by the prosecution, Ahmad Haywood, testified he could identify the gun as his brother’s. He had seen the defendant load it, and it had gone off as soon as it was closed. It was the claim of this witness and the defendant that the gun went off accidentally and it was prone to do so.
Apparently after this testimony, one of the city police officers tested the gun without the defendant’s attorney being present, although the attorney had a pretrial discovery order which would have permitted it. The officer testified he had taken shells from which the powder and shot had been removed, placed the shells in the breach, closed the breach, and then unsuccessfully attempted to make it go off accidentally. The deputy’s expertise was brought out. The defendant made a series of objections to this witness’s testimony. We find no error in the testimony. This is the kind of expertise requiring very little educational background. The defendant’s request for two or three weeks adjournment in order to meet the testimony was not reasonable under the circumstances of the case. People v Wilson, 397 Mich 76; 243 NW2d 257 (1976). Since this was his defense he could have had his experts prepared long before trial.
The defendant’s principal contention seems to be that the jury which tried him on the principal charge was discharged before he, the defendant, pled guilty to the supplemental information, reserving however the right to raise the present issue.
The record shows Judge Deake heard the trial but for some reason was absent at the time the jury came in with the verdict. Circuit Judge Ager, without objection from anyone, received the verdict. He released the jury thereafter, again without objection. We would hazard a guess he knew nothing relative to the supplemental information, and the prosecuting attorney may have forgotten it. Certainly, the defendant had no desire to remind anyone of its existence.
On June 5, 1980, the defendant was sentenced to prison for two years and eight months to four years.
On August 28, 1980, the defendant pled guilty to the habitual criminal charge reserving, as we have stated, his claim that the jury which tried him on the principal charge was improperly dismissed.
On September 4, 1980, defendant was sentenced to three and one-half to five years as an habitual offender.
He now appeals on the basis of double jeopardy in that when the jury was sworn on the principal charge he was placed in jeopardy on the supple mental charge also and the dismissal of the jury before trial on the supplement releases him from jeopardy on the supplement.
This is the exact opposite of most claims we have relative to trials on supplemental informations. Most of the time, the defendants are claiming reversible error in requiring the jury hearing the principal charge to also hear the supplemental charge.
We are concerned with the fact that so much time elapsed between the original trial on April 22, 1980, and the plea to the supplemental information on August 28, 1980. In fact, at the time of the sentencing, on the first charge, June 5, 1980, why did not the court, the prosecuting attorney, the defendant’s attorney, the probation department, or someone bring to everyone else’s attention the lack of disposition on the supplemental information?
We look at some judicial precedents on the question of dismissing the jury before the supplemental information is resolved. People v Walters, 109 Mich App 734, 739, 740, 742; 311 NW2d 461 (1981), is one. After a jury convicted the defendant on the principal charge, the prosecutor immediately wanted to proceed against him as a third offender. Apparently, the information already had the supplemental charge on it, but the defendant had not yet been arraigned on the supplemental charge.
The majority of the Court found the filing several months before trial gave the defendant enough notice so failure to arraign before trial was not grounds for dismissing the supplemental charge. However, the Court did say:
"The habitual criminal hearing is a unitary proceed ing with the trial on the principal charge. Jeopardy attaches when the jury is impaneled in the trial on the principal charge. Habitual criminal charges are not considered separate crimes, 'but rather, for deterrent purposes, [are] intended to augment the punishment for second or subsequent felonies’. People v Shotwell, 352 Mich 42, 46; 88 NW2d 313 (1958), cert den 356 US 976; 78 S Ct 1141; 2 L Ed 2d 1149 (1958). * * *
Although it is within the trial court’s discretion whether or not a new jury will be impaneled to try the habitual criminal charge when the court believes that prejudice may result if the case is presented before the original jury panel, the court may not dismiss the original jury absent the defendant’s request or consent.
* * * Because the trials on the habitual charge and the principal charge are considered unitary proceedings, the trial court’s dismissal of the jury must be considered as being mid-proceeding even though it occurred between the two hearings. Here, because the jury had been impaneled and jeopardy had attached, and because the action is treated as unitary with the trial on the principal offense, and because the jury was dismissed, sua sponte, by the trial judge without the defendant’s request or consent, we find that to try the defendant before a different jury would violate his double jeopardy rights.” Walters, supra, pp 739-740.
Judge Mackenzie dissented and said:
"Trying defendant on the charge in the supplemental information does not constitute a repeated attempt at conviction of a defendant who has been factually acquitted of the charge. * * * In the case at bar, there was no ruling consisting of a resolution in defendant’s favor of some or all of the factual elements of the offense charged. * * * Thus the Double Jeopardy Clause does not present a bar to arraignment and trial on the supplemental information.” Walters, supra, p 742.
In People v Thomas Johnson, 94 Mich App 551; 288 NW2d 456 (1980), the defendant was convicted of felonious assault by a jury and on the supplemental charge by the same jury. He claimed this violated his privilege against self-incrimination as he had testified in the basic trial and had been impeached by the prior conviction charged in the supplemental charge. The Court of Appeals held that the trial court had discretion to impanel a new jury, and the trial court had wished to do this but could not do so unless the defendant moved to dismiss the jury. The defendant refused to do this, so the court was correct in proceeding with the original jury. At pp 555-556, the Court said:
"Enhancement of punishment under MCL 760.10; MSA 28.1082, for habitual offenders is not a separate proceeding from the trial on the principal charge. * * * Jeopardy attached when the jury was initially impaneled and sworn. People v Gardner, 62 Mich 307; 29 NW 19 (1886); People v Williams, 85 Mich App 258; 271 NW2d 191 (1978). For the trial court to dismiss the jury on its own motion and impanel a new one without defendant’s consent would have violated defendant’s constitutional protection against double jeopardy.”
In People v Shelton, 412 Mich 565; 315 NW2d 537 (1981), the Court was following People v Fountain, 407 Mich 96; 282 NW2d 168 (1979), in saying the law requires the prosecuting attorney to file the information "promptly” even if the statute indicates it can be done after trial or after sentencing. The Court did not directly discuss the double jeopardy issue raised in our case. We do note the fact situation. The defendant had been jury tried and convicted. On the first day of trial, before the jury was selected, the supplemental information was filed. Immediately after the conviction on the principal charge, the defendant was arraigned on the supplemental charge. A bench trial was had, and he was convicted. The defen dant appealed in pro per. The decision still does not mention the possibility of double jeopardy as a defense to the conviction on the supplemental charge.
The Court twice directly quoted from Fountain to the effect that:
"The prosecutor is not foreclosed from proceeding against a person as an habitual offender after conviction on the current offense provided he is unaware of a prior felony record until after conviction. MCL 769.13; MSA 28.1085. The only recognized exception to this rule is. when the delay is due to the need to verify out-of-state convictions based on the 'rap sheet’.” Shelton, supra, pp 568, 569.
While we courts can call it a unitary proceeding for one purpose, it is clearly recognized that a part of the proceedings need not even be alleged or commenced before a jury verdict on the basic charge and defendant can still be proceeded against in a separately tried action.
The issues on the principal charge and the issues on the supplemental information are relative to separate facts occurring at entirely different times. Judge Mackenzie’s dissent in Walters states the better position in reference to our particular problem. Here, as there: "In the case at bar, there was no rule consisting of a resolution in defendant’s favor of some or all of the factual elements of the crime charged * * *. Thus, the Double Jeopardy Clause does not present a bar to arraignment and trial on the supplemental information.” Walters (Mackenzie, J., dissenting), supra, p 742.
Affirmed.
Cynar, J., concurs in result only. | [
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R. B. Burns, J.
This appeal arises out of claimant’s claim of employment discrimination in violation of the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Claimant, Marian Caskey, was hired by respondent in July, 1977. She was 5 feet 4 Vi inches tall and weighed approximately 250 pounds at the time she was hired. In May, 1980, several employees, including claimant, were laid off. After learning that employees with less seniority were being recalled, claimant called respondent and was informed that she had to undergo a physical examination as a condition to recall. Accordingly, she was examined at Metro Industrial Clinic on July 18, 1980. After claimant brought the written results of the examination to respondent, she was informed by respondent that she would not be recalled unless she lost 125 pounds. She then went to her family physician who also examined claimant and found that she was physically able to resume her employment.
Claimant filed charges with the Civil Rights Commission and hearings were held before a referee in July and August, 1982. At the July hearing, claimant testified that she had made efforts to find new employment but that she had been unable to find fulltime, regular work. As a result, her only employment had been caring for an elderly woman on an irregular basis, for which she was compensated $91 a month. Claimant testified that she had filled out applications "up and down Northline”, but that her efforts had been unsuccessful. Upon cross-examination, claimant admitted that the last time she had reported to the unemployment office was one to two years previously. However, she stated that she had been to the office within the prior two months to examine the microfilms of job listings. She recalled specifically applying for a position at the Kelsey-Hayes plant in Pontiac in September, 1981, the winter of 1981 or 1982 and summer of 1982.
In its decision, the commission found that respondent had unlawfully failed and refused to recall claimant because of her weight and that respondent had not shown that claimant failed to mitigate her damages. The commission also awarded claimant’s attorney, Charlene Snow, fees in the amount of $8,437, calculated at a rate of $70 per hour.
The commission’s decision was appealed to the Wayne County Circuit Court and the circuit judge upheld the decision of the commission, but increased the attorney fees awarded to Snow to a rate of $90 per hour. The court declined to rule on whether claimant was entitled to interest on the award.
The first issue we consider is whether the circuit court applied the correct standard in determining whether claimant mitigated her damages. The circuit court looked to federal cases under Title VII, 42 USC 2000e et seq., and concluded that claimant was required to use reasonable care and diligence in seeking suitable employment in order to mitigate her damages.
In Michigan, the defendant has the burden to prove that the plaintiff failed to employ every reasonable effort to mitigate damages. Williams v American Title Ins Co, 83 Mich App 686; 269 NW2d 481 (1978). This rule is applicable to both contract and tort actions. Williams, supra. The question of the appropriate standard for determining a plaintiff’s obligation to mitigate damages under Elliott-Larsen appears to present a question of first impression. However, like the circuit judge, we look to federal decisions under Title VII for guidance.
Like Elliott-Larsen, a primary purpose of Title VII is to prohibit discriminatory practices in employment. See Ford Motor Co v EEOC, 458 US 219; 102 S Ct 3057; 73 L Ed 2d 721 (1982). Because of the similarities in the statutes, Michigan courts have frequently relied on federal decisions under Title VII when deciding state employment discrimination claims.
Section 706(g) of Title VII imposes a duty to mitigate damages. However, once a claimant has presented a prima facie case of discrimination and damages, the burden of demonstrating that he failed to mitigate his damages shifts to the respondent. Rasimas v Michigan Dep’t of Mental Health, 714 F2d 614 (CA 6, 1983); Kaplan v International Alliance of Theatrical & Stage Employees & Motion Picture Machine Operators, 525 F2d 1354 (CA 9, 1975). In order to meet this burden, respondent must provide evidence to satisfy the following two-pronged test:
"The burden of proving a failure to mitigate damages in an employment discrimination suit is on defendant. Kaplan [supra, p 1363]. To satisfy this burden, defendant must establish (1) that the damage suffered by plaintiff could have been avoided, i.e., that there were suitable positions available which plaintiff could have discovered and for which he was qualified; and (2) that plaintiff failed to use reasonable care and diligence in seeking such a position.” Sias v City Demonstration Agency, 588 F2d 692, 696 (CA 9, 1978).
This test appears to be almost uniformly accepted.
We disagree with respondent’s interpretation of "reasonable care and diligence” as meaning that the discharged employee is required to make every effort to find employment. A claimant is only required to make every reasonable effort to mitigate damages and is not held to the highest standard of diligence. Rasimas, supra; United States v Lee Way Motor Freight, Inc, 625 F2d 918 (CA 10, 1979) ; Thurber, supra.
Moreover, a finding of diligence is not a condition precedent to an award of back pay. It is a respondent, not a claimant, who bears the burden of establishing that the claimant willfully failed to mitigate damages and this burden is not met merely by showing that further actions could have been taken in the pursuit of employment. "Rather, the defendant must show that the course of conduct plaintiff actually followed was so deficient as to constitute an unreasonable failure to seek employment.” Thurber, supra, p 242.
In summary, diligence in mitigating damages within the employment discrimination context does not require every effort, but only a reasonable effort and it is a respondent, not a claimant, who has the burden of establishing that the claimant failed to make an honest, good faith effort to secure employment.
Having concluded that the circuit judge applied the correct standard, we must now determine whether he was correct in finding that claimant mitigated her damages. This Court’s review of the circuit court’s findings in the present case is governed by the clearly erroneous standard of MCR 2.613(C), formerly GCR 1963, 517.1. Dixon v Ford Motor Co, 402 Mich 315; 262 NW2d 666 (1978); Civil Rights Comm v Chrysler Corp, 80 Mich App 368; 263 NW2d 376 (1977).
After reviewing the testimony of claimant and the complete lack of any contradictory testimony by respondent, the circuit court found that respondent had failed to meet its burden of proof. A review of the whole record does not leave us with the "definite and firm conviction that a mistake has been committed”. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976).
Respondent next argues that the circuit court abused its discretion in awarding claimant attorney fees at the rate of $90 per hour. The controlling criterion for evaluating a court’s award of attorney fees is reasonableness. In Wood v DAIIE, 413 Mich 573; 321 NW2d 653 (1982), the Court set forth the guidelines to be employed in computing reasonable attorney fees:
" '(1) the professional standing and experience of the attorney; (2) the skill, time and labor involved; (3) the amount in question and the results achieved; (4) the difficulty of the case; (5) the expenses incurred; and (6) the nature and length of the professional relationship with the client.’ ” Wood, supra, p 588, quoting Crawley v Schick, 48 Mich App 728, 737; 211 NW2d 217 (1973).
This Court will uphold the circuit court’s finding of reasonableness absent an abuse of discretion. Wood, supra; Nelson v DAIIE, 137 Mich App 226; 359 NW2d 536 (1984).
Our review of the record indicates that the circuit judge took into account the appropriate factors, examined those factors in light of the facts of this case, and reached a reasonable conclusion as to the number of hours to be compensated and the rate for that compensation. We find no abuse of discretion on this issue.
Finally, we turn our attention to the question of whether the circuit court erred in denying claimant’s request for interest on the award. Interest on a judgment is purely a creature of statute and if it is to be allowed at all, some statutory authority must authorize it. Motyka v Detroit, G H & M R Co, 260 Mich 396; 244 NW 897 (1932); Osinski v DAIIE, 69 Mich App 426; 245 NW2d 76 (1976).
MCL 600.6013; MSA 27A.6013 provides that interest "shall be allowed on any money judgment recovered in a civil action”. This Court noted the limited applicability of this section in Osinski, supra, p 428:
"By its express terms § 6013 applies only to a money judgment recovered in a 'civil action’ and permits interest to accrue from the date of filing the complaint. A civil action is commenced only 'by filing a complaint with the court’. GCR 1963, 101, MCL 600.1901; MSA 27A.1901.”
Because §6013 is in derogation of the common law, which does not generally allow interest on judgments, it must be strictly construed. Motyka, supra; Schwartz v Piper Aircraft Corp, 90 Mich App 324; 282 NW2d 306 (1979).
In the instant case, the proceedings were instituted by filing charges with the Civil Rights Commission, not by a complaint with the circuit court. Although the commission operates similarly to a court, it is only a quasi-judicial body created by the Legislature. We conclude that the commission proceedings did not constitute a civil action and therefore § 6013 does not authorize the payment of interest on a back pay award entered by the commission.
We also reject claimant’s contention that once the appeal was filed in the circuit court, the action was transformed into a civil action. A similar argument was raised and rejected in Morgan v Kamil, 144 Mich App 171; 375 NW2d 378 (1985). In Morgan, this Court found a distinction between a circuit court acting in an appellate capacity and when it exercises original jurisdiction. See also Porter v Board of Optometry, 41 Mich App 150; 199 NW2d 666 (1972), overruled on other grounds 394 Mich 432; 231 NW2d 642 (1975).
However, our analysis does not end here as we must also look to the authority vested in the commission by Elliott-Larsen itself. MCL 37.2605(2); MSA 3.548(605) provides that:
"Action ordered under this section may include, but is not limited to:
"(i) Payment to the complainant of damages for an injury or loss caused by a violation of this act * * *
"(k) Other relief the commission deems appropriate.”
We conclude that the provisions of subsection "k” grants the commission the authority to award interest on an award granted by the commission to a claimant under the act. In the case at bar, it appears that claimant did request that interest be granted, but the commission’s order is silent as to interest, neither granting nor denying it.
Accordingly, we reverse this case on the question of interest only and remand to the commission for determination of whether interest should be awarded to claimant in this case and, if so, in what amount.
Affirmed in part and remanded to the commission for further proceedings not inconsistent with this opinion. Claimant may tax all costs in this Court and in the circuit court.
See, e.g., Robson v General Motors Corp, 137 Mich App 650; 357 NW2d 919 (1984), lv gtd 422 Mich 935 (1985); Northville Public Schools v Civil Rights Comm, 118 Mich App 573; 325 NW2d 497 (1982); Dep’t of Civil Rights v Taylor School Dist, 96 Mich App 43; 292 NW2d 161 (1980); Civil Rights Comm v Chrysler Corp, 80 Mich App 368; 263 NW2d 276 (1977).
42 USC 2000e-5(g).
See e.g., Kaplan, supra; EEOC v Sandia Corp, 639 F2d 600 (CA 10, 1980) ; Thurber v Jack Reilly’s, Inc, 521 F Supp 238 (D Mass, 1981); EEOC v Kallir, Phillips, Ross, Inc, 420 F Supp 919 (SD NY, 1976); Rasimas, supra; Marks v Prattco, Inc, 633 F2d 1122 (CA 5, 1981).
We recognize that interest has been authorized in workers’ compensation cases even absent statutory authority to do so. See Solakis v Roberts, 396 Mich 13; 233 NW2d 1 (1975); Wilson v Doehler-Jarvis Divison of National Lead Co, 358 Mich 510; 100 NW2d 226 (1960). However, we decline to extend that rationale to employment discrimination cases.
We stress, however, that although it is within the authority of the commission to award interest if it deems it appropriate, a party does not have a right to receive interest.
Respondent urges us to treat this silence as a denial of interest. We reject that argument, believing that claimant is entitled to receive a definitive ruling by the commission on her request.
Although we offer no specific guidelines at this time for the commission to consider in reaching its decision on interest, we do note that an interest award, if deemed appropriate, should compensate claimant for delay in receiving her money and, by the same token, should remove any incentive for respondent to appeal merely to delay the payment of the judgment. | [
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Per Curiam.
Plaintiff appeals as of right from the trial judge’s judgment of dismissal after a bench trial.
The plaintiff testified that she and defendant John Sardy began living together in July, 1970. In 1975, the couple decided to purchase a house. Both plaintiff and defendant John Sardy contributed one-half of the $10,000 down payment. Plaintiff also testified that one year later John Sardy promised to give the home to her in exchange for her work in his store. Plaintiff had been working in the store from 1970 and continued to do so until 1977. Plaintiff received no compensation for her services. In addition, although the plaintiff and John Sardy never married, he was the father of a child born to the plaintiff in 1975. John Sardy denied living with the plaintiff, although he admitted that he was the father of her child. He also denied any agreement to give the house to the plaintiff. He testified that he bought the house with $10,000 cash obtained from his father and the deed to the house is presently in the name of his mother, defendant Elizabeth Sardy. In her complaint, plaintiff prayed for an order for conveyance of the property pursuant to the agreement.
At the close of proofs, the trial judge made his findings of fact on the record, which are summarized as follows:
1. Plaintiff was telling the truth insofar as she had contributed $5,000 to the down payment and she and defendant John Sardy had an oral agreement for plaintiff to take the home and defendant to have the hardware business.
2. John Sardy’s testimony was incredible and evasive to the point of perjury.
3. Defendant John Sardy had disposed of title to the home via his mother (defendant Elizabth Sardy) "for the purpose, obviously, of avoiding the consequences of this litigation”.
4. Plaintiff and defendant John Sardy were living together, had sexual relations, and "begot a child”.
The trial judge dismissed the case based on the following legal conclusions:
"The court is of the opinion that despite its findings of fact in her behalf that absent this rule of the court of equity, the court is of the opinion she does not have clean hands. That a woman or a man who lives with someone and commingles their funds in the State of Michigan, as yet there is no authority to the effect that they have any rights whatsoever in the property of the other. If this were a divorce action and the court had jurisdiction under divorce there is no question that a fair property settlement would demand the court find what she should have. But because of her lawful disability — they were not common-law husband and wife, they were not lawful husband and wife — the court has no business taking jurisdiction.
"For those reasons the cause is dismissed. The court will sign an order to that effect.”
The trial judge signed an order which stated:
"The above entitled action having been tried by the court without a jury, and the court having concluded that based on the factual findings herein that the plaintiff is entitled to the relief prayed for in her complaint, but the court having further found that the plaintiff does not have clean hands or standing in a court of equity because of her cohabitation with the defendant at the time of the accruing of plaintiff’s cause of action, therefore,
"It is further ordered and adjudged that plaintiff’s cause is dismissed with prejudice and without costs to either party.”
We first hold that the trial judge’s findings of fact are supported by the record. We further hold that the trial judge erred in his application of the law to this case. "[T]he existence of a meretricious relationship does not render all agreements between the parties illegal.” Carnes v Sheldon, 109 Mich App 204, 211; 311 NW2d 747 (1981). "The doors of courts are not closed to people who lead immoral lives when contracts between them un tainted with illegality or fraud are involved.” Burns v Stevens, 236 Mich 447, 453; 210 NW 483 (1926). In Tyranski v Piggins, 44 Mich App 570, 573-574; 205 NW2d 595 (1973), lv den 389 Mich 793 (1973), the Court stated:
"Neither party to a meretricious relationship acquires, by reason of cohabitation alone, rights in the property accumulations of the other during the period of the relationship. But where there is an express agreement to accumulate or transfer property following a relationship of some permanence and an additional consideration in the form of either money or of services, the courts tend to find an independent consideration.
"Thus, a plaintiff who can show an actual contribution of money, pursuant to an agreement to pool assets and share accumulations, will usually prevail. Services, such as cooking meals, laundering clothes, 'caring’ for the decedent through sickness, have been found to be adequate and independent considerations in cases where there was an express agreement.” (Footnotes omitted.)
Thus, the trial judge erred in dismissing plaintiffs claim on the basis that she does not have clean hands or standing because she cohabited with John Sardy. We fail to see why defendants should prevail; if we use the same reasoning as the trial judge, defendant John Sardy "does not have clean hands” either. The cohabitation of the parties is irrelevant in this case to the issue of whether a contract existed between them except insofar as it has bearing upon the weight to be given their testimony. Burns, supra, p 452. In this case, there was an agreement between the parties that the plaintiff would receive the home. Also, the agreement was supported by valuable consideration; namely, the services performed by the plaintiff on behalf of John Sardy’s business over a period of years. Further, the plaintiff contributed $5,000 toward the purchase of the home. Therefore, we reverse the judgment of the trial judge and grant to plaintiff the relief prayed for in her complaint regarding the house.
Reversed and remanded for entry of an order consistent with this opinion.
Costs to plaintiff. | [
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D. F. Walsh, P.J.
Plaintiff, Gladys Durham, appeals the Workers’ Compensation Appeal Board’s reversal of a hearing referee’s open award of workers’ compensation benefits and medical expenses.
Plaintiff was first employed by defendant Chrysler Corporation in 1970. In 1971 or 1972, she was assigned to the valve lock operation on a production line assembling engine heads. This job required her to raise both hands and press two buttons above her head more than 400 times each hour. After several months on that assignment, she began to experience pain in her shoulders, arms, hands, neck and chest; she also began to experience spells of dizziness. On May 7, 1973, the pain became so severe that she was unable to continue working.
Dr. Charles J. Lapp, plaintiff’s family doctor, tentatively diagnosed her condition in May, 1973, as thoracic outlet syndrome. This diagnosis was confirmed by a neurologist, Dr. Akemi Takekoshi.
In deposition testimony, Dr. Takekoshi described thoracic outlet syndrome:
"Basically it refers to problems at the cervical outlet, the base of the neck, and it is in a very small cramped area where the nerves and blood vessels to the arms pass in close proximity to the first rib, and they are surrounded by muscles at the base of the neck, and depending on the person’s particular anatomy, or whether they happen to have an extra rib, they can get pressure of the nerves and blood vessels being compressed by the muscles against the first rib causing a variety of symptoms, commonly weakness or numbness in the arms, pain in the arms, compression of the ulnar nerves, most commonly in the arms, frequently neck pain and headaches.”
According to Dr. Lapp:
"The immediate cause of trouble in the patient was enlargement of the neck muscles which impinged upon the nerves as they wound around these neck muscles and impinged upon the arteries to the arms, and a branch of these arteries, the basilar vertebral artery, goes up alongside the spine to the base of the brain, and if this artery gets pinched, the circulation is impaired and the patient becomes dizzy and may have neck aches, headaches and poor coordination and double vision because the base of the brain has to do with these activities.”
Plaintiff was off work intermittently between May 7, 1973, and July 8, 1974. Defendant voluntarily paid workers’ compensation benefits to her from October 21, 1973, to November 12, 1973, and from June 4, 1974, to July 8, 1974. When she returned to work, plaintiff was given a job which did not require that she lift her hands above waist level. On August 18, 1974, after working for about five weeks, she was involved in a nonwork-related automobile accident. She did not return to work after the accident. She received no-fault benefits and health and accident disability benefits for limited periods after the accident.
On July 14, 1977, plaintiff filed a petition for workers’ compensation benefits, listing the nature of her disability as "thoracic outlet syndrome, back, neck, arms, hands and shoulders”. She described her injury and disablement as follows:
"* * * worked on job Nov. 70 to 5/7/73 that required her to lift her hands over her head 430 times per hour. Developed thoracic outlet syndrome. Returned to work still symptomatic, and worked on favored employment from 7/12/74 to 8/16/74. The auto she was driving was struck by another car 8/18/74, aggravating her thoracic outlet syndrome so she could not perform the favored employment.”
Defendant stipulated that plaintiff had suffered a personal injury on May 7, 1973, while in defendant’s employ, that that injury arose out of and in the course of her employment, and that she had been disabled due to that personal injury for the periods during which workers’ compensation benefits had been voluntarily paid. For the period following payment of benefits, defendant denied that plaintiff suffered a work-related disability.
Plaintiff testified that she had been able to do the job assigned to her when she returned to work but that she had experienced some physical difficulty in that assignment. According to Dr. Lapp, plaintiff had been able to do that job until the auto accident. She received a relatively minor muscle sprain in the accident but, according to Dr. Lapp, was thereafter unable to return to work. It was also established that plaintiff underwent an operation for removal of a rib in 1975.
Dr. Takekoshi testified that people who are prone to develop thoracic outlet syndrome often experience an aggravation of symptoms when they perform work requiring them to use their hands at or above shoulder level. In his April, 1974, report to Dr. Lapp, Dr. Takekoshi stated that plaintiff had been able to perform her new work duties and that her pain and numbness had only occasionally recurred.
In 1978, two surgeons examined plaintiff at defendant’s request. Dr. Francis B. MacMillan testified that thoracic outlet syndrome is a congenital condition which is not occupationally related. While activity could have a bearing on the condition, according to Dr. MacMillan, the effect would be only temporary and would cease once the demands of the activity had subsided.
The second surgeon, Dr. Robert D. Larsen, testified that thoracic outlet syndrome is not an occu pationally induced condition. He stated that, assuming the existence of thoracic outlet syndrome, its symptoms could be precipitated by the conditions of one’s occupation but that the syndrome itself would not be affected by occupational conditions.
The hearing referee found that plaintiff had received a disabling, work-related personal injury on May 7, 1973, and that she was entitled to weekly workers’ compensation benefits until further order of the bureau. Defendant was also ordered to pay for all reasonable and necessary medical expenses incurred by plaintiff during the course of her disability.
Defendant appealed, arguing that the hearing referee erred in finding that plaintiff was disabled and, assuming disability, in finding that her disability was work-related.
The appeal board reversed the award of benefits. The board explained its rejection of plaintiff’s claim as follows:
"We are not convinced of this because of the pivotal fact that plaintiff has failed to present preponderating evidence that establishes a work contribution to the pathology that produces her symptoms and we find this as fact.
"Our view of the evidence causes us to believe that plaintiff has an internal condition that predisposes her to painful symptoms when she performs work that requires her to use her arms at or above shoulder level and we so find as fact. This type of situation does not result in a work related disability except for the period of time that the work induced symptoms prevent employment.
"We are convinced, and so find as fact, that any disabling symptoms related to plaintiff’s duties of employment were not present during her last month of employment.” (Emphasis in original.)
The appeal board’s findings of fact are conclusive in the absence of fraud. Const 1963, art 6, §28; MCL 418.861; MSA 17.237(861). It is the responsibility of this Court to determine if there is any fraud associated with those findings, and to decide if there is any competent evidence in the record to support them. Aquilina v General Motors Corp, 403 Mich 206, 213; 267 NW2d 923 (1978). Questions of law are fully reviewable. Id.
The dispositive factual issue in this case is whether plaintiff suffered a work-related disability beyond the period during which she received workers’ compensation benefits. It was plaintiff’s burden to establish such disability by a preponderance of the evidence. Aquilina, supra, p 211.
The facts in this case are strikingly similar to those in Castillo v General Motors Corp, 105 Mich App 776; 307 NW2d 417 (1981), lv den 412 Mich 895 (1982). The Castillo plaintiff began to experience pain in her back and shoulder shortly after commencing work which entailed bending and lifting. The defendant employer voluntarily paid workers’ compensation benefits to her when she was off work. Shortly after she returned to favored work, the plaintiff was injured in a nonwork-related accident. By the time she recovered from the accident, there were no jobs available in her favored-work classification. She was placed on sick leave and her employment was terminated after her sick leave expired. She filed a claim for workers’ compensation benefits. It was undisputed that she had suffered back and shoulder pain while employed by the defendant. This Court described the controversy concerning the dispositive issue:
"The only dispute concerned the deposition testimony of the two medical witnesses in the case. The deposition of Dr. Clark was introduced into evidence by plaintiff. Dr. Clark testified that plaintiff had chronic left shoulder and dorsal back strain and that her employment with defendant precipitated or aggravated her back problem. The deposition of Dr. Badgley was introduced into evidence by defendant. Dr. Badgley testified that plaintiff suffered from thoracic outlet syndrome, a congenital anomaly which had nothing to do with plaintiff’s work. Simplified, Dr. Badgley found that plaintiff suffered from an anatomical condition which, when plaintiff does a particular movement or a series of movements, becomes symptomatic and that plaintiff suffers pain. Dr. Badgley clearly testified that:
" 'Certain types of work will cause her to have symptoms, but it does not aggravate the thoracic outlet syndrome and neither did it cause it.’ ” 105 Mich App 779.
The hearing referee and the appeal board, relying on Dr. Badgley’s testimony, found as a fact that the plaintiff had not suffered a work-related disability and her claim for benefits was denied. This Court affirmed, recognizing its inability to reverse the appeal board’s evidentially supported finding of fact.
Similarly, in the instant case, the appeal board’s finding that there has been no work contribution to plaintiff’s condition is supported by medical testimony and will not be disturbed by this Court.
Plaintiff argues that the appeal board’s decision is at odds with defendant’s stipulation that plaintiff had been disabled due to a work-related injury during the periods when workers’ compensation benefits were voluntarily paid. See Dana Corp v Employment Security Comm, 371 Mich 107; 123 NW2d 277 (1963). She further argues that there is a "presumption of continuity” and that, consequently, it was defendant’s burden to prove that her disability had ceased. In support of this latter claim, she cites Aalsburg v Cashion, 384 Mich 236; 180 NW2d 792 (1970), Fowler v Hamilton Moving & Storage Co, 324 Mich 614; 37 NW2d 649 (1949), and Ferns v Russ Graham Shell Service, 413 Mich 550; 321 NW2d 380 (1982).
In our judgment, the appeal board’s decision is not contrary to defendant’s stipulation. In the stipulation defendant merely acknowledged its prior voluntary payment of workers’ compensation benefits to plaintiff. As in Castillo, the fact that plaintiff had in the past suffered disabling, work-related symptomatic manifestation of her underlying anatomical condition did not establish her right to continuing benefits. The "presumption of continuity” to which plaintiff refers is not applicable to the instant situation. Under the circumstances of this case, the burden of establishing a continuing work-related disability by a preponderance of the evidence lies with plaintiff. Aquilina v General Motors Corp, supra, p 211. There is no statutory conclusive presumption of disability in this case. Ferns v Russ Graham Shell Service, supra, is patently inapposite.
The decision of the appeal board is affirmed. | [
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D. F. Walsh, P.J.
The prosecutor appeals the dismissal with prejudice of charges filed against defendants Glenn Wright and Reginald Chestnut. In docket no. 60399, defendant Wright was charged with, and bound over to Detroit Recorder’s Court on, kidnapping, two counts of first-degree criminal sexual conduct, and felony-firearm. MCL 750.349, 750.520b(l), 750.227b; MSA 28.581, 28.788(2)(1), 28.424(2). Defendant Chestnut was charged with kidnapping and felony-firearm but was bound over to recorder’s court only on the kidnapping charge. In docket no. 61672, defendant Wright was charged with possession of heroin with intent to deliver. MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii). In each case, the trial court granted defendants’ motions to dismiss all charges, ruling that the 180-day rule had been violated. MCL 780.131 et seq.; MSA 28.969(1) et seq.
At the time of their arrests and detention in Wayne County jail, both of these defendants were parolees. Immediately after their arrests, and because of the possibility of violations of the terms of their paroles, parole holds were placed on them by the Department of Corrections. For purposes of this appeal, we accept the trial court’s finding that the prosecutor failed to take good faith action to bring defendants to trial within 180 days of the filing of the parole holds. If the 180-day rule applies to these fact the court lost jurisdiction in these cases. See People v Hendershot, 357 Mich 300; 98 NW2d 568 (1959).
1957 PA 177 provides:
"Sec. 1. Whenever the department of corrections shall receive notice that there is pending in this state any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this state a criminal offense for which a prison sentence might be imposed upon conviction, such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate and a request for final disposition of such warrant, indictment, information or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail. [MCL 780.131; MSA 28.969(1).]
"Sec. 3. In the event that, within the time limitation set forth in section 1 of this act, action is not commenced on the matter for which request for disposition was made, no court of this state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” MCL 780.133; MSA 28.969(3).
In People v Hill, 402 Mich 272, 280-281; 262 NW2d 641 (1978), the Supreme Court discussed the issue of when the 180-day period begins to run:
"We hold that the statutory period begins with the coincidence of either conditions 1 or 2 and condition 3:
"(1) The issuance of a warrant, indictment or complaint against a person incarcerated in a state prison or under detention in any local facility awaiting incarceration in any state prison;
"(2) The incarceration of a defendant in a state prison or the detention of such defendant in a local facility to await such incarceration when there is an untried warrant, indictment, information or complaint pending against such defendant; and
"(3) The prosecutor knows or should know that the defendant is so incarcerated when the warrant, indictment, information or complaint is issued or the Department of Corrections knows or should know that a warrant, indictment, or complaint is pending against one sentenced to their custody.”
The issue presented in this case is whether a person detained in a local facility, and against whom a parole hold has been filed, is under detention awaiting incarceration in a state prison. We answer this question in the negative, and hold that the filing of the parole holds in these cases did not trigger the running of the 180-day statutory period.
Until revocation of parole, it is possible that a paroled prisoner who is being detained, for whatever reason or reasons, in a local facility will not be returned to state prison to finish out his or her original sentence. Paroled prisoners who are under accusation of violation of parole are entitled to parole revocation hearings within 45 days of their return to state prison or of their availability for return to prison. The hearing may take place at the prison or locally. MCL 791.240a(l); MSA 28.2310(1X1). Such hearings are to be preceded by preliminary probable cause hearings or written notice of the charges and the evidence to be pre sented against the parolee at the fact-finding, parole revocation hearing. MCL 791.239a; MSA 28.2309(1). Only if a violation of parole is established by a preponderance of the evidence can parole be revoked. Even if a violation of parole is established, the parole board may decline to revoke parole. MCL 791.240a(6); MSA 28.2310(1X6).
Until revocation of parole, a paroled prisoner who is being detained locally, and against whom a parole hold has been filed, is not, because of the hold, awaiting incarceration in a state prison. The Hill standard is, therefore, not satisfied and the 180-day rule does not apply. Of course, a parolee, as all other defendants, is not precluded from claiming violation of his or her constitutional right to a speedy trial.
We reverse the dismissals of the aforementioned charges and remand to the trial court for further proceedings. Our order of reversal is without prejudice to the filing of motions in the trial court for evidentiary hearings in that forum for a determination of whether defendants’ paroles were revoked before entry of the orders of dismissals. If their paroles were revoked before dismissal, it shall be for the trial court to determine if the 180-day rule was violated by virtue of the delay between revocation and dismissal.
Reversed. We do not retain jurisdiction. | [
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Allen, J.
May a defendant be convicted of felony murder where the underlying felony, breaking and entering, occurred in 1978, before breaking and entering was made an enumerated felony in 1980 under MCL 750.316; MSA 28.548? This question of first impression comes to us on the following facts.
Sometime between 10 and 11 a.m. on Sunday, October 15, 1978, Martin Rueger was found lying on the ground at his home in Saginaw. The car door was open and the motor running. The back doors were open, the window of one of the doors was broken and the house was ransacked. Two portable television sets, a check protector, some clothing, three purses, a copper coffee urn, and an electric broom were missing. An autopsy revealed that Rueger had been shot five times and had bled to death. Testimony given at trial by persons in the neighborhood clearly established that the breaking and entering and subsequent shooting occurred during daylight hours, probably sometime between 8 and 10 a.m.
One year later, in October, 1979, Teresa Beville contacted the police and informed them that a woman named Brenda Whetstone had shot Martin Rueger. Ms. Beville stated that she met Brenda in the summer of 1975, that she and Brenda had a homosexual relationship, eventually moving to Flint where they shared an apartment together, and that in October, 1978, Brenda and Monica Blair brought to the apartment a television set, a vacuum cleaner, clothes, and some purses. Ms. Beville further stated that on that occasion Brenda explained that she believed she had just shot a man and was relieved when she heard on television that the man was dead so she did not have to worry about being identified. The information Ms. Beville gave the police earned her a $5,000 reward, although she did not know about the reward until after meeting the police.
As a result of the information given the police, charges of first-degree felony murder and felony-firearm were filed against defendant November 5, 1979. Count I of the information reads as follows:
"Murder First Degree — Felony
did feloniously, while in the perpetration or attempted perpetration of a Breaking and Entering of an Occupied Dwelling With Intent to Commit Larceny, kill and murder one Martin Rueger; Contrary to Sec. 750.316, CL 1970, as amended; MSA 28.548.”
Count II charged possession of a firearm while committing a felony. At trial, Teresa Beville took the stand and testified, even though she knew she did not need to testify in order to get the reward. She described the shooting as follows:
"Well, she said that he drove up behind them as they were leaving the house, getting ready to leave. They was in the car. And he went around to the back of the car and she said she could see him, his mouth moving, like he were trying to remember the license plate. He came around to the passenger’s side of the car and she shot him. She said she shot him three times and she got out and shot him some more.”
Defendant was tried by a jury, and on April 1, 1980, was found guilty of first-degree murder, MCL 750.316; MSA 28.548, and felony-firearm, MCL 750.227b; MSA 28.424(2). On June 16, 1980, defendant was sentenced to mandatory life in prison to be served consecutively to the mandatory two-year prison term for felony-firearm. She appeals of right raising three issues noted below. At oral argument on appeal, this Court sua sponte raised the issue of whether a defendant may be convicted of a felony murder when the underlying felony set forth in the information was not an enumerated felony under MCL 750.316; MSA 28.548. The Court asked the parties to submit briefs on the issue. Those briefs have been submitted.
Defendant’s issues (2) and (3), if valid, would require reversal of defendant’s conviction and remand for a new trial. Defendant’s issue (1) and the issue raised sua sponte by this Court, if valid, only require that the conviction be modified to reduce the offense to murder in the second degree and that the matter be remanded for resentencing on second-degree murder. People v Allen, 390 Mich 383, 386; 212 NW2d 21 (1973). We first discuss defendant’s issues (2) and (3).
At the preliminary examination held October 25, 1979, Leona Goff testified that she had been in the same dormitory at the county jail with defendant and at that time defendant had confided to her that she shot Martin Rueger. At the time of trial, March 26 through April 1, 1980, the prosecution was unable to find Leona Goff to subpoena her as a witness. Due to the witness’s unavailability, and after hearing testimony from several witnesses relating to attempts to find the witness, the trial court allowed the preliminary examination testimony to be read to the jury pursuant to MRE 804(b)(1).
Quoting extensively from Ohio v Roberts, 448 US 56; 100 S Ct 2531; 65 L Ed 2d 597 (1980), defendant argues that the prosecution failed to exercise due diligence in keeping track of the witness during the five-month period between preliminary examination and trial. Counsel contends that a higher degree of effort was required in this case because the charge was first-degree murder and because defendant had a constitutional right of confrontation. We do not quarrel with the admonitions in Roberts, supra, or with the claim that due diligence must be shown. We simply disagree with the conclusion that the prosecution failed to exercise due diligence. The determination of due diligence rests within the sound discretion of the trial court. People v Fournier, 86 Mich App 768, 778; 273 NW2d 555 (1978). Due diligence requires that everything reasonable, not everything possible, be done. People v Riley Williams, 57 Mich App 199, 202; 225 NW2d 691 (1974).
We have examined the record and find the prosecution made substantial efforts to locate the witness. Prior to trial the prosecutor had tried to find Ms. Goff and had even subpoenaed Rose Goff, Leona Goff’s mother. When Rose Goff failed to appear, the prosecutor obtained a bench warrant. Later, Rose Goff did appear and testified she did not know of her daughter’s whereabouts and knew of no family member who would know. The prosecutor stated he tried to reach Ms. Goff’s brother at the Grass Lake and the Muskegon correctional facilities, but the brother never answered. The process server testified that when he could not find Leona Goff at her last known address, he checked with the post office and with Consumers Power but found no forwarding address had been given. Two individuals checked with the Department of Social Services and found Leona Goff was not drawing welfare anywhere in Michigan. A trial court’s determination on due diligence will be overturned on appeal only where a clear abuse of discretion is shown. People v Bell, 74 Mich App 270, 275; 253 NW2d 726 (1977). Given the extensive efforts to find the witness, we find no abuse of discretion.
We now turn to defendant’s issue (3) mentioned earlier. Did error occur when the prosecution on redirect examination elicited testimony from Teresa Beville, the prosecution’s chief witness, as to defendant’s heroin addiction and an alleged knife attack? We think not.
Although defendant is correct in asserting that the testimony in question does not fall within the similar acts doctrine set forth in MRE 404(b), the testimony was relevant to responses made by the witness upon rigorous cross-examination by defense counsel. Repeatedly, upon cross-examination of Ms. Beville, counsel inquired why she waited a year to inform the police and why she finally decided to reveal the incident. Near the end of cross-examination, the witness responded:
"A. Well, me and my roommate — well, he knew about the situation because I told him. And after that incident that night before at this house, and me thinking about all the things she had done to me and was continually doing, might have done to somebody else, I decided the best thing to do was bring it on out in the open.” (Emphasis supplied.)
Upon redirect examination the prosecutor picked up the theme by inquiring as follows:
"You had indicated on cross-examination that during this year period of time before you called the police with your information, that Brenda had done some things to you?”
In response to this question and a follow-up question, the witness related that defendant was on heroin and that on one occasion defendant came to the witness’s home and threatened her with a knife. It is obvious that the evidence of defendant’s heroin addiction and the knife incident came to light because defense counsel "opened the door”. Defendant cannot complain of admission of testimony which defendant invited or instigated. People v Barker, 97 Mich App 253, 257; 293 NW2d 787 (1980).
In addition to having invited the testimony, defendant failed to object to its introduction at trial. It is well settled that a claim on appeal which was not raised at trial cannot be considered in the appellate court, unless a clear injustice is demonstrated. People v Eroh, 47 Mich App 669; 209 NW2d 832 (1973); People v Scott, 23 Mich App 568; 179 NW2d 255 (1970). Because defendant invited the testimony in the first place, such injustice cannot be shown.
We next turn to consideration of the remaining two issues, either of which, if valid, would call for a reduction of defendant’s conviction of first-degree murder to second-degree murder. On the date Martin Rueger was killed and his house broken into (October 15, 1978), and on November 5, 1979, the date of the information charging defendant with breaking and entering, Michigan’s felony-murder statute read:
"All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion, or kidnapping, shall be murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life.” MCL 750.316; MSA 28.548. (Emphasis supplied.)
On March 11, 1980, House Bill 4111, which became 1980 PA 28, was passed and given immediate effect. This act amended the statute by deleting the word "burglary” emphasized above, and replacing it with the words "breaking and entering a dwelling”. Likewise, the amendatory act deleted the word "rape” and replaced it with the words "criminal sexual conduct in the first or third degree”.
Since defendant must be judged by the statute as it existed at the time of the offense, the question arises whether defendant had been convicted of a felony which, at the time of the offense, was not an enumerated offense under MCL 750.316; MSA 28.548. Defendant’s brief on this issue, submitted at this Court’s request, argues that the term "burglary” refers to the common-law offense of breaking and entering a dwelling house in the nighttime, and since the breaking and entering in the instant case occurred in the daytime, defendant was wrongfully charged. In response, the brief submitted by the people argues that the common-law crime of "burglary” encompasses both breaking and entering in the nighttime and breaking and entering in the daytime. The question posed is of first impression.
Defendant correctly states the general rule that at common law the crime of burglary was a breaking and entering of a dwelling house in the nighttime. 3 Wharton’s Criminal Law (14th ed), § 337, p 211; 13 Am Jur 2d, Burglary, § 22, p 322; LaFave & Scott, Handbook on Criminal Law, § 96, p 713. The time of the offense was considered a critical element because night was the time honest men might fall prey to criminals. LaFave & Scott, supra.
In Michigan, as elsewhere, the common-law crime of burglary referred only to a breaking and entering committed in the nighttime. Cole v People, 37 Mich 544 (1877). We therefore reject the prosecution’s argument that the common-law offense of burglary encompassed daytime offenses, such as that involved in the case at bar, as well as nighttime breakings and enterings.
We observe, however, that the common-law crime of burglary has expanded to encompass daytime offenses in certain jurisdictions where the legislature has enacted new statutory definitions of the crime of burglary. 13 Am Jur 2d, Burglary, § 22, p 332. State v Williams, 189 La 355; 179 So 452 (1938); State v Petit, 32 Wash 129; 72 P 1021 (1903). Unlike the Louisiana and Washington legislatures, Michigan’s Legislature never has enacted a "burglary” statute; instead it codified a series of breaking and entering statutes. The 1835 laws include two statutes proscribing breaking and entering a dwelling house in the nighttime, essentially the common-law offense of burglary. 1838 Rev Stat, part IV, tit 1, ch 4, §§9-10. Other statr utes enacted at that time proscribed breakings of other buildings at other times and under different circumstances. 1838 Rev Stat, part IV, tit 1, ch 4, §§ 11-13. The various statutes describing different breakings were re-enacted with few substantive changes until 1964, when the distinction between night and day was abolished with respect to these crimes. 1964 PA 133. The present breaking and entering statutes also do not distinguish between night and day. MCL 750.110 et seq.; MSA 28.305 et seq.
While in other states the statutes have obliterated the distinction between day and night offenses, e.g., Williams, supra, Michigan courts have continued to. recognize the distinctions between common-law burglary and the statutory breakings. In Harris v People, 44 Mich 305; 6 NW 677 (1880), the Supreme Court wrote that "burglary is a common-law offense, distinct from statutory breakings that resemble it”. In People v Fox, 142 Mich 528; 105 NW 1111 (1905), the court found a technical error in referring to a statutory breaking in the nighttime as "burglary”.
In determining the meaning of "burglary” as it was used in the felony-murder statute in effect in 1978, we must determine what the drafters of the 1931 felony-murder statute intended. People v McDonald, 409 Mich 110; 293 NW2d 588 (1980). The subsequent modification of the statute to include breaking and entering as an enumerated felony cannot govern offenses committed before the effective date of the modification unless the drafters of the previous statute had the same intent and clearly expressed that intent. As we believe that the common-law offense of burglary included only those breakings committed nocturnally, and we observe that the courts have maintained the distinction between the common-law offense and statutory breakings, we do not believe we can broadly read the felony-murder statute as including daytime breaking and enterings amid the enumerated felonies.
Our conclusion in this respect is supported by the recent decision of another panel of this Court. People v Saxton, 118 Mich App 681; 325 NW2d 795 (1982). In that case, as in the instant case, defendant was charged and found guilty of felony murder where the underlying felony occurred in 1974 before breaking and entering was one of the enumerated felonies. Defendant argued that the breaking and entering could not be included within the term "burglary” since, as in the instant case, the breaking and entry occurred in the daytime. Likewise, as in the instant case, that defense was not raised at trial. Despite the fact that the issue was not raised at trial this Court found the error reversible, holding:
"As discussed above, burglary was a crime distinguishable from the statutory crimes of breaking and entering. As used in the felony-murder statute, the term 'burglary' referred to the common-law crime which required a breaking and entering of a dwelling house in the nighttime.
"In the present case, the breaking and entering took place in the daytime. The breaking and entering therefore fails to establish the underlying felony and defendant’s first-degree murder conviction cannot be affirmed. However, the judge necessarily found defendant guilty of second-degree murder so we order his conviction reduced to that offense.” Saxton, supra, pp 690-691.
We fully agree with Judge Brennan that the facts disclosed premeditation. So too did the testimony in Saxton. But we must disagree that the issue can be overlooked or considered waived where the crime charged was nonexistent when the offense was committed. We are directed to construe criminal statutes strictly and to resolve any ambiguity in favor of the accused. Yates v United States, 354 US 298, 304-305; 77 S Ct 1064; 1 L Ed 2d 1356 (1957); Bell v United States, 349 US 81, 83; 75 S Ct 620; 99 L Ed 905 (1955). We conclude that "burglary”, as it was used in the felony-murder statute in effect in 1978, referred only to the common-law crime.
In this case, the evidence is clear that the offense was committed during the daylight hours. The breaking and entering therefore fails to establish the underlying felony and defendant’s first-degree (felony) murder conviction cannot stand. The jury necessarily found defendant guilty of second-degree murder, however, so we order her conviction reduced to that offense.
As it is necessary to modify defendant’s conviction to second-degree murder, we need not determine whether all of the elements of felony murder were established before defendant’s confession was admitted into evidence. Defendant admits that, at the time the confession was admitted into evidence, the elements of second-degree murder had been established. We therefore see no prejudice.
Defendant’s conviction for first-degree (felony) murder is vacated. The case is remanded for entry of a conviction of second-degree murder and resentencing on that offense.
T. C. Megargle, J., concurred.
(1) Did the prosecution fail to establish the corpus delicti of felony murder prior to the admission of defendant’s confession? (2) Did the trial court violate the constitutional right to confront witnesses against defendant by ruling that the prosecution had shown due diligence in producing witness Leona Goff and by permitting admission of her preliminary examination testimony? (3) Did error occur when the prosecutor elicited testimony from a key witness as to defendant’s heroin addiction and an alleged knife attack?
"(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
"(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding:, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.”
The use of heroin and the knife attack do not show motive, scheme, plan, or system as to the killing of Martin Rueger.
Defendant’s issue (1) as set forth in fn 1 supra, and the issue raised sua sponte by this Court. | [
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Per Curiam.
In this appeal as of right we are asked to decide when a parolee is "available for return to a state penal institution under accusation of a violation of parole” within the meaning of MCL 791.240a(1); MSA 28.2310(1)(1), as amended by 1982 PA 314, § 1. Further, we must determine whether such an issue can properly be raised in a habeas corpus proceeding.
On July 13, 1984, plaintiff, Henry Hinton, was arrested and charged with felonious assault and malicious destruction of property, MCL 750.82; MSA 28.277, and MCL 750.377a; MSA 28.609(1). Allegedly, Hinton and his two brothers assaulted a patron at Rocky’s Bar, located in the City of Detroit, and proceeded to break up tables and chairs and cause other damage. At the time of this incident, Hinton was a parolee whose parole status was subject to the following conditions: (1) that he not engage in assaultive, abusive, threatening or intimidating behavior; and (2) that he not enter establishments which dispense intoxicants for consumption on the premises.
Hinton was incarcerated in the Wayne County Jail on July 13, 1984, when, following his arraignment on the criminal charges, he did not post bond. The Michigan Department of Corrections issued a parole detainer or "hold” for Hinton on July 16, 1984, pursuant to MCL 791.239; MSA 28.2309. Hinton was served with a notice of parole violations, detailing the charges against him, on July 20, 1984. On September 14, 1984, the underlying criminal charges were dismissed for insufficient evidence, pursuant to plaintiffs motion.
Following dismissal of the criminal charges, the Michigan Department of Corrections issued a parole violation warrant which was served on Hinton on September 19, 1984. A hearing on this warrant was scheduled for October 25, 1984. However, the hearing was adjourned indefinitely at the request of plaintiffs counsel, who had a scheduling conflict. Plaintiff filed a petition for a writ of habeas corpus on October 24, 1984. The writ was granted on October 29, 1984, based on the finding that plaintiff was not afforded a parole revocation hearing within 45 days of being "available for return to a state penal institution”. Defendant appels as of right.
During the pendency of this appeal, plaintiff was released from parole by the Michigan Department of Corrections. Thus, the issues raised in this appeal are technically moot. Nevertheless, this Court will review the merits of defendant’s arguments since we are persuaded that the issues are of public importance and that they are likely to recur and yet evade appellate review. People v Thompson, 125 Mich App 45, 46; 335 NW2d 712 (1983); Milford v People’s Community Hospital Authority, 380 Mich 49, 55-56; 155 NW2d 835 (1968); Colombini v Dep’t of Social Service, 93 Mich App 157, 161; 286 NW2d 77 (1979).
MCL 791.240a(1); MSA 28.2310(1)(1) provides in pertinent part:
"Within 45 days after a paroled prisoner has been returned or is available for return to a state penal institution under accusation of a violation of parole, other than the conviction for a felony or misdemeanor punishable by imprisonment under the laws of this state, the United States, or any other state or territory of the United States, the prisoner is entitled to a fact-finding hearing on the charges before 1 member of the parole board or an attorney hearings officer designated by the chairperson of the parole board.” (Emphasis added.)
The emphasized language was added to this statute by 1982 PA 314, § 1. Prior to the amendment, the statute provided for a hearing within 30 days of the prisoner’s "[having] been returned to a state penal institution”. Plaintiff maintains that he was "available for return to a state penal institution” on July 20, 1984, the day he received notice of the parole revocation charges. In contrast, defendant maintains that plaintiff was available on September 14, 1984, the day the criminal charges were dismissed and plaintiff was being held in custody solely on the authority of the parole detainer. For the following reasons, we believe that defendant’s construction of the statute is accurate. Thus, the trial court erred when it granted a writ of habeas corpus based on the alternative construction.
When called upon to construe a statute, this Court is guided by traditional rules of statutory construction. A threshold rule dictates that no judicial interpretation or construction is necessary where a statute is unambiguous on its face. However, when ambiguity exists, this Court endeavors to give effect to the intent of the Legislature. R & T Sheet Metal, Inc v Hospitality Motor Inns, Inc, 139 Mich App 249, 253-254; 361 NW2d 785 (1984). Although some deference will be given to defendant’s construction of this statute, since it is the entity charged with its administration, it is not entitled to great deference since the amendment at issue is not of long standing, having been enacted in 1982. Shelby Charter Twp v State Boundary Comm, 129 Mich App 650, 654; 341 NW2d 855 (1983), lv granted 422 Mich 857 (1985).
We believe that the case law interpreting § 791.240a(1) prior to the 1982 amendment is instructive with regard to legislative intent. A review of the case law indicates that in enacting 1982 PA 314, § 1, the Legislature was attempting to make § 791.240a(1) conform to prior judicial interpretations of this provisions.
In Feazel v Dep’t of Corrections, 31 Mich App 425; 188 NW2d 59 (1971), this Court held that the prior statutory language "returned to a state penal institution”, should not be literally construed. In Feazel, the parolee was arrested on February 11, 1969, for possession of an uncased shotgun in an automobile. He was served with a parole violation warrant on March 6, 1969, returned to prison on March 17, 1969, and afforded a hearing, after one adjournment at his own request, on April 14, 1969. The parolee maintained that the parole board lacked jurisdication to conduct the hearing since it was not afforded within 30 days of his arrest. This Court disagreed, finding that he was not incarcerated "under accusation of a violation of parole” by virture of his arrest on the criminal charges. However, this Court indicated that a parolee did not actually have to be returned to prison before the running of the 30-day period was triggered. Rather, the time period began to run "[w]hen a paroled prisoner [was] incarcerated in any penal institution [including local and county jails] under the parole violation warrant”. 31 Mich App 428.
In Ward v Parole Board, Dep’t of Corrections, 35 Mich App 456; 192 NW2d 537 (1971), lv den 386 Mich 767 (1971), the concept of "availability” in connection with the unamended version of § 791.240a(1) was directly addressed for the first time. There, a parole violation warrant had issued on March 6, 1967, but was not served. A hearing was not convened within 30 days but the parole board contended that the period did not commence running since the parolee was in custody in Oakland County as of March 13, 1967, on a charge of armed robbery. This Court held that the parolee was "unavailable” by virtue of his incarceration in Oakland County on local criminal charges. Moreover, the Court held that the onus was on the parolee to make himself available to the parole board by posting bond or obtaining his release from restraint by some alternative means. Until the parolee was released from confinement on the criminal charges, he did not gain entitlement to a hearing within 30 days.
Because of Feazel and Ward, supra, the preamendment language of § 791.240a(1) did not comport with the settled law regarding when the 30-day period commenced running. However, by adding the language "or available for return” to a state penal institution, the statutory language was reconciled with the case law. Consistent with Feasel, a parolee incarcerated in a local or county jail solely on the authority of a parole violation warrant would be entitled to a hearing within 45 days, since he would be available for return to prison. Similarly, consistent with Ward, a parolee would be entitled to a hearing within 45 days of his release on local criminal charges where a parole violation warrant had been issued but not executed; in such a situation, the parolee would not be available for return to prison until released by local authorities.
We presume that the Legislature was aware of this Court’s prior opinions when it enacted 1982 PA 314, § 1. With that in mind, we can conceive of no reason, other than reconciliation of the statute with existing case law, for enacting this specific amendment. Plaintiff points out that 1982 PA 314, § 1 also provided for hearings locally whereas, before the amendment, hearings could only be held at state penal institutions. Plaintiff concludes that the amendment should therefore be construed to mean that a parolee is "available” as of the date that he is notified of parole violation charges. However, if the Legislature had intended such a result, we believe that it would have incorporated language to indicate that the 45 days was to begin running when the parolee was available for a hearing. Since the Legislature spoke instead of availability for return to prison, we do not find plaintiff’s argument persuasive. Moreover, we note that policy considerations militate in favor of our construction of the amendment. As the Court held in Ward, supra,
"* * * the parole board does not lose jurisdiction over a parolee by deferring execution of a warrant for parole violation until the termination of other impending criminal proceedings.
"The reason for this holding is that if the parolee is convicted of a felony or misdemeanor his parole is ipso facto revoked. The hearing on alleged violations * * * becomes pointless.” 35 Mich App 461.
Application of our holding to the facts of this case indicates that Hinton was not "available for return” to prison until September 14, 1984, the date that the criminal charges were dismissed. At that time, Hinton’s incarceration was authorized solely by the parole detainer. He was therefore entitled to a hearing by October 29, 1984. Such a hearing was timely scheduled for October 25, 1984, but was adjourned at the behest of plaintiff’s counsel. We find that the lower court erred in holding that only the plaintiff could waive a timely hearing. The statute clearly provides that the hearing may be postponed for cause at the request of the parolee or his attorney. MCL 791.240a(3); MSA 28.2310(1)(3).
Defendant next argues that resolution of the issue pertaining to the meaning of the phrase "available for return” to prison was not proper in a habeas corpus proceeding. Defendant avers (1) that the proper procedure would have been to litigate the issue at the parole revocation hearing and, if resolved adversely, to pursue an appeal under the Administrative Procedures Act, MCL 24.301 et seq.; MSA 3.560(201) et seq., and (2) that the grounds for release from detention in a habeas corpus proceeding may not involve unsettled questions of law.
In Triplett v Deputy Warden, Jackson Prison, 142 Mich App 774; 371 NW2d 862 (1985), this Court held that the availability of review of parole revocation decisions under § 101 of the Administrative Procedures Act, supra, did not foreclose alternative avenues of judicial review. Citing In re Casella, 313 Mich 393; 21 NW2d 175 (1946), this Court further held that "review of a parole revocation decision is permissible upon a complaint for habeas corpus”. 142 Mich App 779. The Court noted that construing the Administrative Procedures Act as affording an exclusive avenue for review would be unconstitutional, since a prisoner’s right to file a complaint for habeas corpus is guaranteed by the state constitution. See Mich Const 1963, art 1, § 12.
We note that in Triplett and in Smith v Michigan Parole Bd, 78 Mich App 753; 261 NW2d 193 (1977) (involving a complaint for mandamus), there had actually been adjudication on whether to revoke parole. Thus, a central argument raised in those cases was that the habeas corpus or mandamus proceeding operated as a collateral attack on the parole revocation determination. In the case at bar, there had been no parole revocation hearing. Moveover, the issue raised at the habeas corpus proceeding dealt solely with whether plaintiff was being legally detained as opposed to errors attending a prior hearing. Unlike in the other two cases, this was not a stitutaion where error may have harbored pending the outcome of the hearing. Thus, defendant’s argument, urging the exclusivity of an administrative appeal, is even less compelling than in Triplett and Smith, supra.
Nevertheless, defendant maintains that the Recorder’s Court judge exceeded his authority in the habeas corpus proceeding. A complaint for habeas corpus is designed to test the legality of detaining an individual and restraining him of his liberty. In re Huber, 334 Mich 100; 53 NW2d 609 (1952); Trayer v Kent County Sheriff, 104 Mich App 32; 304 NW2d 11 (1981). If a legal basis for detention is lacking, a judge must order the release of the detainee from confinement. MCL 600.4352; MSA 27A.4352. However, the writ of habeas corpus deals only with radical defects which render a judgment or proceeding absolutely void. In re Stone, 295 Mich 207; 294 NW2d 156 (1940); Walls v Director of Institutional Services, 84 Mich App 355; 269 NW2d 599 (1978). "A radical defect in jurisdiction contemplates * * * an act or omission by state authorities that clearly contravenes an express legal requirement in existence at the time of the act or omission.” People v Price, 23 Mich App 663, 671; 179 NW2d 177 (1970).
Defendant points out that construction of the language "available for return” presented a novel question of law. Accordingly, defendant argues that any purported jurisdictional error could not be viewed as a "clear” contravention of an "express” legal requirement. We agree. Given the ambiguity in the statutory language, it was not at all clear that defendant lacked the authority to convene a hearing on the parole revocation charges. Thus, the lower court’s action was not based on a "radical jurisdictional defect” as that term is defined in Price. A radical defect would have existed if, for example, 45 days had elapsed without a hearing from the date that the criminal charges were dismissed. In that circumstance, there would be no question with respect to whether plaintiff was being legally detained. However, granting a writ of habeas corpus is inappropriate where, as here, the basis for such relief depends on choosing between two plausible constructions of a statute. For,
"[i]f it were otherwise, hebeas corpus in the trial courts of this state would open the way for the less than uniform resolution of unsettled questions of law * * * » Price, 23 Mich App 671.
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Hood, P.J.
Both parties appeal by leave granted from a circuit court decision interpreting the provisions of the landlord tenant relationship act (LTRA), 1972 PA 348, MCL 554.601 et seq.; MSA 26.1138(1) et seq.
The matter originated in the 54-A District Court when plaintiff instituted a suit against defendants for damages to a rental unit and for unpaid rent. Defendants were tenants of one of plaintiffs apartments pursuant to a written lease under which defendants had paid a required security deposit.
Proceedings in the district court and in the circuit court involved the meaning of the notice and limitation of actions provisions of §§ 9, 10, and 13 of the LTRA. Those sections, all of which bear upon our disposition of this cause, provide:
"Sec. 9. In case of damage to the rental unit or other obligation against the security deposit, the landlord shall mail to the tenant, within 30 days after the termination of occupancy, an itemized list of damages claimed for which the security deposit may be used as provided in section 7, including the estimated cost of repair of each property damaged item and the amounts and bases on which he intends to assess the tenant. The list shall be accompanied by a check or money order for the difference between the damages claimed and the amount of the security deposit held by the landlord and shall not include any damages that were claimed on a previous termination inventory checklist prior the tenant’s occupancy of the rental unit. The notice of damages shall include the following statement in 12 point boldface type which shall be at least 4 points larger than the body of the notice: 'You must respond to this notice by mail within 7 days after receipt of same, otherwise you will forfeit the amount claimed for damages.’ ” MCL 554.609; MSA 26.1138(9).
"Sec. 10. Failure by the landlord to comply with the notice of damages requirement within the 30 days after the termination of occupancy, constitutes agreement by the landlord that no damages are due and he shall remit to the tenant immediately the full security deposit.” MCL 554.610; MSA 26.1138(10).
"Sec. 13. (1) Within 45 days after termination of the occupancy and not thereafter the landlord may commence an action in a court of competent jurisdiction for a money judgment for damages which he has claimed or in lieu thereof return the balance of the security deposit held by him to the tenant or any amount mutually agreed upon in writing by the parties. A landlord shall not be entitled to retain any portion of a security deposit for damages claimed unless he has fírst obtained a money judgment for the disputed amount or filed with the court satisfactory proof of an inability to obtain service on the tenant or unless:
"(a) The tenant has failed to provide a forwarding address as required by section 11.
"(b) The tenant has failed to respond to the notice of damages as required by section 12.
"(c) The parties have agreed in writing to the disposition of the balance of the deposit claimed by the landlord.
"(d) The amount claimed is entirely based upon accrued and unpaid rent equal to the actual rent for any full rental period or portion thereof during which the tenant has had actual or constructive possession of the premises.
"(2) This section does not prejudice a landlord’s right to retain any security deposit funds as satisfaction or partial satisfaction of a money judgment obtained pursuant to summary proceedings filed pursuant to chapter 57 of Act No. 236 of the Public Acts of 1961, as amended, being sections 600.5701 to 600.5759 of the Compiled Laws of 1948 or other proceedings at law. Failure of the landlord to comply fully with this section constitutes waiver of all claimed damages and makes him liable to the tenant for double the amount of the security deposit retained.” MCL 554.613; MSA 26.1138(13). (Emphasis added.)
In the district court, defendants asserted by affidavit that they vacated the premises on August 31, 1980, and gave timely notice of their forwarding address. Plaintiff, also by affidavit, stated that it first became aware that defendants had vacated the premises on September 23, 1980, that it sent a notice of damages on October 16, 1980, well within 30 days of September 23, 1980, and that, upon defendants’ failure to respond, it instituted suit on January 16, 1981.
Defendants moved for accelerated judgment on the ground that the suit was not commenced within 45 days of the date they moved, as required by § 13(1) of the LTRA. The district court granted defendants’ motion for accelerated judgment.
Defendants then moved for partial summary judgment, seeking the return of their security deposit and the doubling of that amount pursuant to § 13(2) of the LTRA. The district court ruled for defendants, holding that, since the notice of damages was more than 30 days after actual vacation, damages were waived and the security deposit must be returned. Double damages were denied on the ground that defendants had not filed a counter-complaint seeking the same.
Upon appeal to the Ingham Circuit Court, the order of partial summary judgment was affirmed. The accelerated judgment, however, was reversed, the circuit court holding that the "damages” referred to in § 13 means those damages claimed against the security deposit and that the 45 days time limit affects only the landlord’s interest in the security deposit and does not bar a subsequent action for damages.
We agree and affirm the circuit court’s assessment of § 13. We reject and reverse, however, the determinations of the circuit court and the district court relative to the request for partial summary judgment.
The granting of summary judgment requiring the return of the security deposit was erroneous under any reasonable interpretation of the LTRA. The district court and the circuit court have interpreted the "termination of occupancy” as used in § 10 of the LTRA as automatically operative irrespective of any compliance or lack of compliance by the tenant with the notice provisions of the other sections of the LTRA. That interpretation would produce absurd results. A statute should be construed so as to avoid, not produce, absurd results. King v Director, Midland County Dep’t of Social Services, 73 Mich App 253, 258; 251 NW2d 270 (1977). For example, a landlord in a month-to-month tenancy could, conceivably, have no notice of the vacation of the premises until after the 30 days prescribed by § 10 had expired and thereby be foreclosed from claiming damages against the security deposit.
Section 10 must be read in conjunction with the other sections of the LTRA: § 3, MCL 554.603; MSA 26.1138(3), which requires the landlord to advise the tenant of the tenant’s obligation to notify the landlord of the tenant’s forwarding address and § 11, MCL 554.611; MSA 26.1138(11), which requires the tenant to notify the landlord of a new address within 4 days after termination of his occupancy. Failure of the tenant to comply with this requirement relieves the landlord of the requirement of notice of damages. Therefore, if defendants did not give timely notice to plaintiff of their forwarding address, plaintiff was not re quired to furnish a notice of damages at all, and if the evidence supports the landlord’s claim that it did not learn of the abandonment until September 23, 1980, its notice of damages of October 16, 1980, would certainly be within the obvious purpose of the section, i.e., to put all parties on notice of claims against the security deposit.
As has been noted, defendants, by affidavit, claimed to have given timely notice of their forwarding address arid plaintiff, also by affidavit, claimed that it knew nothing of the vacation of the premises until September 13, 1980.
Since plaintiff’s obligation to provide timely itemization of claimed damages pursuant to § 9 of the LTRA depends upon the unresolved and very material question of fact regarding whether defendants gave plaintiff their forwarding address, the district court was in error in granting partial summary judgment and the circuit court was in error in affirming that decision.
The circuit court was correct, however, in reversing the district court’s grant of accelerated judgment based upon § 13(1) of the LTRA.
The district court held that § 13(1) means that the failure of the landlord to institute suit within 45 days of the termination of the occupancy absolutely barred any action for damages, even an action for damages in excess of the security deposit. As noted in fn 1 infra, § 13(l)(d) specifically excepts that part of plaintiff’s claim which asks for unpaid rent. In addition, in view of the opposing affidavits, a factual dispute exists as to whether defendants furnished a forwarding address as required by § 11. Defendants also failed to respond to the notice of damages. See §§ 13(1), subds (a) and (b). For these reasons alone, accelerated judgment was improper. GCR 1963,116.3.
Of more importance, however, the district court’s interpretation of the statute subverts the clear intent of the statute. In construing a statutory provision, our primary consideration is to divine the Legislature’s intent. Citizens for Pre-Trial Justice v Goldfarb, 88 Mich App 519, 550; 278 NW2d 653 (1979). The district court’s ruling treats § 13(1) as a statute of limitations which is unrelated to the security deposit. If the section in question were a statute of limitations on all damage claims arising from a landlord-tenant relationship, it would represent an unusually, and probably unreasonably, short time limit. Appellate courts acquiesce in the enforcement of statutes of limitation when we are not persuaded that they unduly restrict access to the courts. Carver v McKernan, 390 Mich 96, 99; 211 NW2d 24 (1973).
A statute of limitations must afford a reasonable time within which a suit may be brought. Given the other sections of the LTRA, which provide for a 30-day notice of damages and a 7-day response by the tenant, there would commonly be fewer than eight days within which to commence suit for all damages, even if those damages were in excess of a security deposit. This is an unprecedentially brief time; one so brief as to be deemed unreasonable. Dyke v Richard, 390 Mich 739, 746; 213 NW2d 185 (1973).
We, however, do not deem the 45-day time limit of § 13(1) to be a statute of limitations because no legislative intent to shorten the applicable period of limitations or to abolish the common-law action for damages is expressed in the title of the statute, as required by Const 1963, art 4, § 24. The title of the landlord tenant relationship act states:
"An act to regulate relationships between landlords and tenants relative to rental agreements for rental units; to regulate the payment, repayment, use and investment of security deposits; to provide for commencement and termination inventories of rental units; to provide for termination arrangements relative to rental units; to provide for legal remedies; and to provide penalties.” (Emphasis added.)
Nothing in the title suggests that the LTRA is intended to abolish a pre-existing remedy for damages or to shorten an existing statute of limitations. See, generally, § 5805 of the Revised Judicature Act, MCL 600.5805; MSA 27A.5805. While the Legislature has great leeway in the phrasing of a title and need not provide an item by item road map of each provision of the statute, still an act may not clearly exceed the scope of its title. Const 1963, art 4, § 24 is not a hollow formality and has been given consistent adherence by the courts of this state. Maki v East Tawas, 385 Mich 151, 158-159; 188 NW2d 593 (1971).
The purpose of the LTRA was to protect tenants. As this Court said in Stutelberg v Practical Management Co, 70 Mich App 325, 338; 245 NW2d 737 (1976), lv den 398 Mich 804 (1976), quoting then circuit court Judge Blair Moody, Jr.’s, opinion:
" 'The Act is primarily aimed to protect the tenant from the landlord surreptitiously usurping substantial sums held to secure the performance of conditions under the lease. * * *
" * * The misleading practice of landlords obtaining large security deposits while charging a lesser monthly rate than their competitors and then unilaterally withholding a good portion of this deposit for unsuspected reasons is halted by the Act.’ ”
Since it is axiomatic that statutory provisions must be construed both in such a manner as to carry out the apparent purpose of the Legislature and to permit the constitutional validity of the statute to be sustained, Workman v DAIIE, 404 Mich 477, 507; 274 NW2d 373 (1979), we hold that § 13(1), in light of the overall statutory scheme of the LTRA, deals strictly with claims for damages to be secured out of security deposits, and does not in any way enhance, restrict, or affect pre-existing statutory and common-law remedies for damages or for unpaid rent.
Affirmed in part, reversed in part, and remanded.
We also note that part of the dispute in this case is for claimed unpaid rent, for which a security deposit may be used pursuant to § 13(l)(d) of the LTRA. | [
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Per Curiam.
Defendant was convicted after a jury trial of aiding and abetting his now ex-wife, Julia Evans, in obtaining assistance or relief to which she was not entitled in an amount greater than $500 by wilful false statement or fraud. MCL 400.60(1); MSA 16.460(1). He was sentenced to one year in jail under a work-release program. Defendant appeals as of right.
Defendant argues that the trial court failed to properly instruct the jury regarding the element of value over $500. The trial court instructed:
"The laws of this state provide that any person who, by means of wilful, false statement or representation, obtains or aids and abets any person to obtain either assistance or relief to which he or she is not entitled, or a larger amount of assistance or relief than that to which he or she is justly entitled, is guilty of a crime. The offense may be either the obtaining of an amount of a value of $500 or less, or the obtaining of money in excess of $500.
"For the defendant to be guilty of this offense, the prosecution must prove each of the following elements beyond a reasonable doubt. First, that on or about December 12, 1975, the defendant made a wilful, false statement or representation; two, that he did so in order to obtain, or aid or abet another person in obtaining, assistance or relief to which she is not entitled, or a larger amount of assistance or relief than that to which she was justly entitled. If you find the foregoing elements to have been proved beyond a reasonable doubt, you then will determine in the same manner whether the amount involved was $500 or less, or whether it exceeded $500.”
MCL 400.60(1); MSA 16.460(1) defines the amount of "assistance or relief’ as "the difference between the lawful amount of assistance or aid and the amount of assistance or aid actually received”. The amount of aid obtained improperly is an essential element of the offense.
The trial court has the duty to instruct the jury regarding all of the elements of the crime and any material defenses or theories. People v Reed, 393 Mich 342, 349-350; 224 NW2d 867 (1975). Appellate review is not precluded even in the absence of an objection or request for instruction by defense counsel. Defendant has the right to have a properly instructed jury pass upon the evidence. People v Liggett, 378 Mich 706, 714; 148 NW2d 784 (1967); People v JC Williams, 118 Mich App 266, 272; 324 NW2d 599 (1982).
The court’s instructions in this case were ambiguous. The court failed to clearly inform the jury of the formula to be used in determining the amount of benefits received beyond Julia Evans’s eligibility. The instructions informed the jury that defendant had committed a crime if he aided and abetted his wife either in obtaining relief to which she was not entitled or in obtaining relief in an amount greater than that to which she was entitled. The jury could have inferred that they could use either the total amount of benefits received or the amount unlawfully received to determine the amount of defendant’s fraud. We cannot guess that the jury found that defendant was living with his wife at the critical time and that, therefore, Julia Evans was not eligible to receive any assistance and thus received greater than $500 for which she was not eligible, i.e., conclude that the jury properly applied the formula. Nor can we guess that the jury found that defendant was not living with his wife at the critical time and that, therefore, Julia Evans received only $180 more in assistance than that to which she was entitled, i.e., conclude that the jury improperly applied the formula.
Finding error on the basis of the above issue, we address defendant’s other issues only briefly.
The district judge did not err by denying defendant’s motion to dismiss based on pre-arrest delay. The court found that all of the delay except for eight months was explainable. The court made no findings regarding the prosecutor’s intent, but there was no evidence of any bad faith. The court specifically found no undue prejudice to defendant because of the delay. We find no error in the lower court’s balancing of the prejudice to defendant against the reasons for and length of the delay. People v Bisard, 114 Mich App 784, 788-790; 319 NW2d 670 (1982).
Defendant was not denied a fair trial by the admission of evidence of similar acts. The evidence of which defendant complains was not admitted for any of the permissible purposes listed in MRE 404(b), and it was not admitted to show defendant’s bad character. Defendant’s receipt of unemployment compensation while employed during 1975 was part of the prosecutor’s case in chief. The prosecutor could not foresee that the trial court would direct a verdict against him as to part of the prosecutor’s case.
Reversible error did not arise through the prosecutor’s comments in closing and rebuttal arguments regarding the credibility of the testimony of defendant and his ex-wife. Defense counsel failed to object at trial to the comments of which defendant now complains. Appellate review is precluded unless the failure to review would cause a miscarriage of justice. People v Lytal, 119 Mich App 562, 570-571; 326 NW2d 559 (1982), lv den 417 Mich 1066 (1983). The prosecutor may argue that from the facts a witness, including the defendant, is not worthy of belief. People v Viaene, 119 Mich App 690, 697; 326 NW2d 607 (1982). In this case, the prosecutor’s statements regarding defendant’s and his ex-wife’s "lies” were based upon the inconsistencies in their testimony and other evidence presented at trial. This was not improper. See People v Jansson, 116 Mich App 674, 691-693; 323 NW2d 508 (1982).
Based upon the first allegation of error, defendant’s conviction is reversed and the case is remanded for entry of a judgment of conviction for misdemeanor welfare fraud under $500 or, if the prosecutor believes the ends of justice would be better served, for a retrial of the felony charge.
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Per Curiam.
Claimant appeals as of right from an order of the circuit court affirming the Michigan Employment Security Board of Review’s denial of her claim for unemployment benefits.
Claimant was employed as a waitress at Murdock’s Food and Wet Goods, the respondent restaurant, from August, 1977, until May 5, 1983. Claimant left work on that date due to complications related to her pregnancy. Specifically, claimant was diagnosed as suffering from a separation of the symphysis pubis, i.e., pubic bone, and, as a result, her physician restricted her from perform ing work which involved lifting or bending. Claimant provided her employer with a note from her doctor to that effect. Claimant testified that no discussion took place, and that her employer walked away after reading the note, whereupon she left the restaurant. Claimant assumed that the employer understood that she could no longer work due to the health problems and thus she did not return. Further, she had no intention of returning to her employment with respondent after the baby was born, and thus the separation, to her mind, was permanent.
After she terminated her employment with respondent, claimant filed a claim for unemployment benefits with the Michigan Employment Security Commission (MESC). The commission denied the request on the ground that she was not able and available to perform work, as required for elegibility by MCL 421.28(1)(c); MSA 17.530(1)(c). Claimant requested a redetermination but her claim was again denied by the commission, this time relying upon MCL 421.29(1)(a); MSA 17.531(1)(a), which provides for the disqualification of persons who have "[l]eft work voluntarily without good cause attributable to the employer * *
Claimant filed an appeal from the redetermination, whereupon a hearing was held before an MESC referee. On August 8, 1983, the referee filed his decision affirming the denial of the claim. In the opinion, the referee indicated that his decision to affirm the denial was based primarily upon claimant’s failure to give her employer an opportunity to provide her with work which would not violate the medical restrictions imposed by her doctor. He further opined that her failure to make reasonable inquiries of other job duties in an attempt to maintain the work relationship thus constituted a voluntary termination of that rela tionship. The claimant then appealed to the Michigan Employment Security Board of Review, which affirmed the referee’s decision. On appeal to the circuit court, the review board’s decision was affirmed.
Claimant argues on appeal that the referee erred in denying her claim due to her failure to request a transfer to employment that she was capable of performing since no such work existed at the restaurant. Thus, since a transfer request would have been futile, her claim should not have been denied on this basis.
Accepting the validity of the above-stated argument, we nonetheless conclude that claimant was properly denied unemployment benefits, but for a more fundamental reason. Her claim is based upon the assumption that a person who is compelled to remove herself from the labor market due to some health problem, including complications related to pregnancy, is entitled to recover unemployment benefits. We disagree, since we believe that the Employment Security Act was intended to provide relief to those persons "able and available” to perform work but who are prevented from so doing by economic forces beyond their control. I M Dach Underwear Co v Employment Security Comm, 347 Mich 465, 472; 80 NW2d 193 (1956). The act was not intended to provide a form of mandatory health or disability insurance at the expense of the employers who fund the system.
The question presented here can be posed more specifically as whether § 29(1)(a) is applicable, i.e., has claimant "[l]eft work voluntarily without good cause attributable to the employer * * Obviously, the word "voluntary”, taken alone, is capable of two meanings under these facts. In a sense, claimant’s separation from employment was involuntary since she did not choose to suffer from a medical condition which requires that she avoid the bending and lifting required in her job. On the other hand, the absence can be construed as a voluntary and wise decision based upon the advice of her doctor. The question, then, is which meaning was intended by the Legislature. We believe that the answer can be derived from the modifying phrase "without good cause attributable to the employerIn the case before us, it certainly cannot be denied that claimant left with good cause. Her own health and that of her baby were at stake. Thus, if the modifying phrase did not include the portion emphasized above, § 29(1)(a) would be clearly inapplicable. However, when the emphasized portion is included, it becomes clear that claimant was intended to be disqualified by this section. Although her termination was for good cause, it can be attributed only to her own circumstances, and not to her employer.
Claimant cites cases from other jurisdictions which would appear to support her claim. However, each of these cases is distinguishable since they involve facts or the construction of statutes dissimilar in some crucial aspect from our own. For example, in Wilson Trailer Co v Iowa Employment Security Comm, 168 NW2d 771 (Iowa, 1969), the claimant was not requesting unemployment benefits during the period of his disability, as is the claimant here. Rather, he was fired by his employer for taking an excessive absence from work after having 24 teeth extracted. His entitlement to benefits following his termination then depended upon the application of a statute which required that the claimant prove that he left his employment because of an illness or injury upon the advice of a physician, that he informed his employer immediately of the necessity for the absence, and that after recovery he returned to work with a certificate of recovery by a licensed physician. Wilson, p 775. Thus, Wilson involved the construction of a statute entirely different from our own. Further, the claimant there did not seek unemployment benefits during the period that he was unable to work due to illness, but rather for a period subsequent to his recovery when he was willing and available to return to his job, but was prevented from doing so by his employer.
In Harraka v Board of Review of Dep’t of Employment Security, 98 RI 197; 200 A2d 595 (1964), the statute provided for ineligibility where the claimant "leaves work voluntarily without good cause * * Harraka, p 200. Thus, the statute did not require that the good cause be attributable to the employer. This distinction from our own statute permitted the court to award benefits to a claimant who left work voluntarily due to his fear of exposure to chemicals, which the court found as a matter of law to be good cause. Harraka, p 203.
Another example is Deiss v Unemployment Compensation Board of Review, 475 Pa 547; 381 A2d 132 (1977). The statute involved in that case provided for ineligibility where the "unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature * * Again, if our own statute were written similarly, we could easily conclude that claimant was not disqualified since her medical problems can certainly be characterized as of a necessitous and compelling nature. However, such is not the case, and thus the cases cited by claimant are of little assistance in construing our own statute.
We conclude that the circuit court correctly affirmed the denial of unemployment benefits to claimant. The competent, material and substantial evidence presented in the record supports the board of review’s conclusion that claimant left work voluntarily without good cause attributable to her employer. MCL 421.29(1)(a); MSA 17.531(1)(a).
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P. J. Marutiak, J.
Defendant appeals of right his jury conviction on a charge of armed robbery. This matter appeared once before on a motion for peremptory reversal and was remanded to the trial court for an evidentiary hearing and the opportunity to file a motion for a new trial based on any allegations of error. The essence of the prosecutor’s case was that the defendant, after drinking with the complainant at a bar, struck the complainant on the back of the head, stabbed him three times, robbed him, then stabbed him twice more and then left.
Defendant contends he was denied a fair trial by the prosecutor’s failure to endorse and produce an alleged res gestae witness in the absence of objection by defense counsel. This matter was considered by the trial court on defendant’s motion for a new trial and the trial court found that the testimony of the unendorsed and unproduced witness, King, would have been merely cumulative of other testimony which described complainant’s condition after the brutal attack and consequently denied defendant’s claim of error. People v Willie Pearson, 404 Mich 698; 273 NW2d 856 (1979), places the burden upon the prosecution of establishing that its failure to produce a res gestae witness would not adversely affect the defendant’s right to a fair trial and that this burden could be satisfied by establishing (1) that the missing testimony would have been of no assistance to the defendant,
(2) that it merely constituted cumulative evidence,
(3) that its absence constitutes harmless error, or
(4) that the witness could not have been produced at trial. This burden was met and we find no reason to overturn the trial court’s determination that it was not error for the prosecutor to fail to produce witness King.
Defendant next contends reversible error occurred when the trial court admitted a certain boot into evidence. There was no timely objection made at trial by the defendant. Since defense counsel didn’t object to the admission of the bloodstained boot into evidence, this Court is precluded from reviewing this issue absent a showing of manifest injustice. People v Alexander, 72 Mich App 91; 249 NW2d 307 (1976). The decision to admit arguably prejudicial evidence is committed to the trial court’s discretion. People v Kramer, 103 Mich App 747; 303 NW2d 880 (1981). The judge’s decision should not be reversed unless it is clearly erroneous and indicates an abuse of discretion. People v Hughie Lewis, 97 Mich App 359; 296 NW2d 22 (1980). In the instant case, the bloodstained boot tended to show that defendant was the man who attacked the victim inasmuch as there was substantial proof that the victim bled profusely and, since the victim identified the defen dant as the assailant, the boot was probative since it corroborated the victim’s identification of the defendant as the assailant. It does not appear that the trial court abused its discretion in allowing the bloodstained item into evidence. Rather, the bloodstained boot was not more prejudicial than probative and, therefore, its admission into evidence was not error. People v Thomas Ross, 73 Mich App 287; 251 NW2d 268 (1977). This claim is without merit.
Defendant also raises as error certain prosecutorial comments in closing argument. Absent defense counsel objection or request for curative instruction, the prosecutor argued to the jury, "All of us are the people of the State of Michigan * * * and all of us have a right to be protected and secure in our person and in our property and to the protection of the law”. Thus he argued that the fact that the victim was unemployed ought not to be a determining factor in jury deliberations. The prosecutor further stated that, while defendant is entitled to a fair trial, justice is a two-way street and the people were entitled to a fair trial, also:
"Mr. Sanderson [victim] can obtain only one thing in this trial and the people can obtain only one thing, because I remind you that this is entitled in the name of the people because it affects all of us and that is justice. It is all that can be obtained. We forget that there are two sides to the coin of justice. We are not here to look for anything but one thing, and that is the truth.”
In the absence of objection by defense counsel, appellate review of allegedly prejudicial remarks by a prosecutor in closing arguments is precluded. The trial court is deprived of an opportunity to make a timely cautionary instruction and thereby eliminate any possible prejudice to the defendant. People v Duncan, 402 Mich 1; 260 NW2d 58 (1977). An exception to the preclusion rule exists where failure to consider the issue would result in a miscarriage of justice. Or, to rephrase, unless the prejudicial effect to defendant was so great that it could not have been cured by a timely cautionary instruction pursuant to defendant’s objection, appellate review is precluded. People v Tenbrink, 93 Mich App 326; 287 NW2d 223 (1979).
Defendant maintains that the prosecutor improperly stressed the stabbing of the victim in his closing argument and therefore the emotions of the jury were aroused to an issue unrelated to defendant’s guilt or innocence. The prosecutor made a single arguably prejudicial remark on elements of the crime in issue in this case. In the absence of timely objection, this Court will not reverse defendant’s conviction on this claim since a cautionary instruction would have removed any possible prejudice to the defendant.
It is also noticed that the jury was instructed by the court that the attorneys’ arguments should not be regarded as evidence. The argument which the prosecutor used here that the defendant classifies as "civic duty” is very similar to the arguments used in People v Hall, 396 Mich 650; 242 NW2d 377 (1976), and People v Edward Villarreal, 100 Mich App 379; 298 NW2d 738 (1980). They are dispositive of defendant’s claims of error as to the alleged "civic duty” arguments made by the prosecutor. In the absence of objection allowing cautionary instruction to cure prejudice and in the presence of instruction that counsels’ argument was not evidence, these remarks do not create reversible error.
Defendant claims the trial court erred when it failed to instruct the jury that armed robbery is a specific intent crime. Once again, no objections were made to the trial court’s instructions and satisfaction was expressed. Robbery is a specific intent crime and a trial court’s erroneous instruction regarding intent is a ground for reversal notwithstanding the fact that there was no request for instruction and no objections made. People v Martin, 75 Mich App 6; 254 NW2d 628 (1977). However, a trial court is not required to use the phrase "specific intent” in an instruction to the jury. While it would be preferable for the trial judge to more fully explain the intent element of armed robbery, the issue on review is whether manifest injustice resulted from the instruction given and thus reversal is required. People v Alexander, supra. The instructions, when reviewed as a whole, did not mislead the jury, were adequate and not inconsistent with substantial justice, notwithstanding the failure of the trial court to more specifically discuss specific intent. The trial court carefully explained the elements of the nature of armed robbery with clarity and precision. People v Fry, 55 Mich App 18; 222 NW2d 14 (1974). Defendant’s claim of error is rejected.
Defendant next claims denial of effective assistance of counsel, alleging the previously mentioned failures to object and, additionally, failure to adequately investigate and prepare for trial. An appropriate analysis under which a claim of ineffective assistance of counsel should be scrutinized is set forth in People v Coyle, 104 Mich App 636, 639; 305 NW2d 275 (1981):
"In Michigan, the merit of claims of ineffective assistance of counsel is determined by applying a bifurcated test. People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), reh den 399 Mich 1041 (1977). The first branch of the inquiry focuses on the Sixth Amendment right to counsel, for which the Supreme Court has endorsed the standard established in Beasley v United States, 491 F2d 687, 696 (CA 6, 1974). People v Garcia, supra, 264. To satisfy defendant’s right to counsel, his lawyer 'must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s interests, undeflected by conflicting considerations’. Id. Aside from reviewing the overall performance of counsel, an appellate court will also examine particular mistakes of counsel to safeguard defendant’s right to a fair trial, which is the other branch of the inquiry. For this purpose, the Garcia Court adopted the standard developed in People v Degraffenreid, 19 Mich App 702; 173 NW2d 317 (1969):
" 'However, even where assistance of counsel satisfies the constitutional requirements, defendant is still entitled to a fair trial. Defendant can be denied this right if his attorney makes a serious mistake. But a court should not grant a new trial unless it finds that but for this mistake defendant would have had a reasonably likely chance for acquittal.’ Garcia, supra, 266.”
At the evidentiary hearing, the trial judge rejected defendant’s claim that defense counsel did not have an adequate opportunity for conference, investigation, and preparation. Defense counsel was informed by the trial court that he could have whatever time he needed in order to prepare, and defense counsel indicated to the court that he didn’t need additional time to prepare. Thus the trial judge concluded defendant was not denied effective assistance of counsel on these grounds. We find no reason to disagree. The other allegations of ineffective counsel refer principally to the failure to object. Each of these issues was discussed earlier in this opinion and found to be lacking in merit. While defense counsel arguably should have acted by objecting to these issues his timely objection clearly would not have afforded the defendant a reasonably likely chance for acquittal. People v Garcia, 398 Mich 250, 266; 247 NW2d 547 (1976). On the motion for a new trial the trial court indicated there was sufficient foundation evidence to justify the previously mentioned boot into evidence.
It should also be noted that it is well established that this Court is reluctant to substitute its judgment for that of the trial counsel in merits of trial strategy. People v Lotter, 103 Mich App 386; 302 NW2d 879 (1981). A difference of opinion as to trial tactics does not amount to ineffective assistance of counsel. People v Penn, 70 Mich App 638; 247 NW2d 575 (1976). While defense counsel’s overall performance may indeed be less than superb, his inaction on the issues does not warrant reversal of defendant’s conviction. The complainant testified at length about the attack and robbery and clearly identified the defendant as the culprit. There was sufficient evidence to support the defendant’s conviction. Even had the defense counsel acted in all respects consistently with the defendant’s arguments on appeal, it seems that the defendant still would probably have been convicted. This claim of error is without merit.
The final issue raised is the claim that the trial court committed reversible error by failing to sua sponte instruct the jury on defendant’s theory of the case. A review oil the record reveals that defense counsel did not request the trial judge to instruct the jury on defendant’s theory of the case, that being mistaken identification of the defendant. It appears that there is a split in this Court on whether such a duty exists consistent with GCR 1963, 516.7. One panel of this Court appears to believe that a trial court must instruct on the defendant’s theory of the case even in the absence of request and that failure to do so is reversible error. People v Gayton, 81 Mich App 390; 265 NW2d 344 (1978), People v Stanley Jones, 69 Mich App 459; 245 NW2d 91 (1976), People v Newman, 107 Mich App 535; 309 NW2d 657 (1981). Some of these cases are distinguishable and most of them reflect a dissent. All of them ultimately return to People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975). We believe that reliance on Jones is misplaced. A careful reading of Jones would distinguish it from the various opinions of this Court. In Jones, defendant was charged with second-degree murder. Throughout the trial, defense counsel asserted that the shooting was accidental and ip closipg argument attempted to persuade the jury his client was not guilty of murder and that the jury might find a verdict of manslaughter. No request was made by either side for a manslaughter instruction. The trial judge, however, gave such an instruction on voluntary manslaughter without any objection and failed to give an instruction on involuntary manslaughter. This the Supreme Court held was error, stating, "Had the judge not instructed at all on manslaughter, there would be no reversible error, because no request for instruction on manslaughter was made. * * * Having undertaken to do so, however, it was reversible error to give a misleading instruction which recognized only the prosecution’s theory but not the defendant’s.” Ora Jones, supra, 393. We read Ora Jones to mean that, if the trial judge sua sponte takes upon himself to instruct on the defendant’s theory, he must then do so correctly. Ora Jones means nothing else in this context.
More persuasive is the logic of People v Tram mell, 70 Mich App 351; 247 NW2d 311 (1976), and People v Samuel Smith, 85 Mich App 404; 271 NW2d 252 (1978), rev’d on other grounds 406 Mich 945 (1979), which conclude that a trial court is not obligated to instruct on a defendant’s theory of the case when no request therefor is made or any statement thereof submitted. However, the holding that failure to summarize his theory of the case was not error was inferentially upheld when the Supreme Court in all other respects denied the application for leave.
We quote, with approval, People v Trammell, supra, 355: "The purpose of instructions is to explain the issues and legal principals [sic] which apply to the facts of a case. The court rules provide for requests and require objections, so as to establish a foundation for appeal on alleged errors in instruction.” Occasionally, we must reiterate and reemphasize the principle of jurisprudence and judicial restraint. Without question it is the duty of the trial judge to properly and adequately instruct on the law, and once he chooses to speak to speak correctly. On matters of defense, however, we should occasionally be reminded that our jurisprudence is based upon the rather unique and extremely successful fair theory of advocacy that the judge is advocate for neither the prosecutor nor the defendant. We view with alarm any tendency to move in that direction which is not required by the absolute needs of impartial judicial instruction. Supreme guidance has been given in OCR 1963, 516.7.
Affirmed.
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Per Curiam.
Plaintiffs appeal from the trial court’s order granting defendant Robert Troy’s motion for accelerated judgment pursuant to GCR 1963, 116.1(5). Mr. Troy cross-appeals from the trial court’s denial of his motion for summary judgment pursuant to GCR 1963, 117.2(3).
On May 24, 1971, plaintiffs contracted with defendant R. J. Smith Contractors, Inc. (Smith), for the construction of their residence. Shortly before the completion of the project, Mr. Troy, the building inspector for the Township of East China, inspected the structure. According to the complaint, Mr. Troy assured the plaintiffs that the structure was free of defects, even though the walls displayed cracks and separations. In July, 1979, plaintiffs commenced this action. Count I of the complaint alleged that Smith had failed to comply with the contract and with the building code of the township. Count II alleged that Mr. Troy breached his duty to inspect the plaintiffs’ residence to determine whether it complied with the township’s building code.
We find that Mr. Troy’s claim on cross-appeal is dispositive and, therefore, we decline to address plaintiffs’ allegation of error.
Mr. Troy moved for summary judgment on the ground that he was entitled to governmental immunity. This Court is divided on the proper standard to apply in assessing a public employee’s claim that he is entitled to governmental immunity. Some panels subscribe to the ministerial-discretionary test. See, e.g., Willis v Nienow, 113 Mich App 30; 317 NW2d 273 (1982). Other panels have held that a public employee is immune from liability for negligence arising out of acts performed within the scope of employment. See, e.g., Gaston v Becker, 111 Mich App 692; 314 NW2d 728 (1981). We follow the "scope of employment test”. Under that test, a public employee is immune from liability for negligence only if the duty allegedly breached is imposed upon him because of the public nature of his employment. Davis v Lhim, 124 Mich App 291; 335 NW2d 481 (1983). In the present case, Mr. Troy’s duty to determine whether plaintiffs’ residence complied with the building code of the township is basically a public duty. Therefore, Mr. Troy is entitled to governmental immunity. The trial court erred in ruling otherwise.
Reversed and remanded to the trial court with instructions to enter summary judgment in favor of defendant Robert Troy.
Reversed and remanded. No costs, a significant public question being involved. | [
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Per Curiam.
Defendant and third-party plaintiff Riise Engineering Company (hereinafter Riise) appeals as of right from the circuit court order granting summary judgment in favor of third-party defendants Jones & Laughlin Steel, Inc., and Jones & Laughlin Steel Corporation (hereinafter J & L).
This case originated as a products liability action brought on behalf of the estate of Virgil Kirin, who was killed on April 23, 1978, after falling off an argon-oxygen decarbonization (AOD) platform manufactured by Riise. The fall occurred while Kirin was performing duties within the course of his employment with J & L.
In its third-party complaint, Riise alleged that blueprints for the platform were supplied by J & L. According to Riise, J & L informed Riise that AOD operations would be fully automated and that no workers would be required or allowed on the platform during operations. Accordingly, Riise did not put safety railings around the perimeter of the platform. In its contract with Riise, J & L agreed that it would be responsible for all safety devices for the AOD platform which were not incorporated in the Riise proposals. Riise expressly limited its warranty to the design of the platform, which was valid only if the platform was not modified or misused.
After J & L approved the drawings and proposals, Riise constructed the platform and shipped it to J & L’s plant, where it was erected and placed into operation. According to Riise, approximately six months later J & L modified the design and construction of the platform without the knowledge or approval of Riise. A work area and stairway were added to the west of the platform, providing human access. The engineering firm that provided the drawings and design specifications for these additions included in the design a guard railing which would be placed around the entire perimeter of the platform. Despite this recommendation, J & L did not place a railing around approximately six feet of the platform’s north side.
On April 26, 1978, the J & L plant was extremely smoky and dusty due to plant activities. Although operations should have ceased under such conditions, J & L supervisory personnel did not stop AOD work operations. Virgil Kirin was on top of the AOD platform attempting to assist the craneman in maneuvering a materials box into its proper position. While doing so, the crane malfunctioned, allegedly due to improper maintenance, and the craneman pulled the box off the platform. At the same time, Kirin’s work glove became caught in the crane’s hook and he was dragged off the north side of the platform, through the unguarded portion, to his death.
Laura Kirin, acting as the administratrix of the decedent’s estate, filed suit against Riise, among others, claiming breach of implied warranties. This claim was settled for $300,000, and an order of judgment in favor of the estate was entered January 20, 1984. Riise filed a third-party complaint against J & L seeking to recover the amount of the settlement on the theory of implied contractual indemnity. The complaint was dismissed pursuant to the trial court’s order of January 16, 1985, which granted J & L’s motion for summary judgment. GCR 1963, 117.2(1). In an opinion dated January 8, 1985, the court held that Riise could not recover on a claim of implied contractual indemnity due to its inability to prove freedom from active fault. Riise appeals as of right.
The theory under which Riise seeks to recover was most recently outlined by this Court in Clark Equipment Co v Jones & Lamson, 144 Mich App 91, 97; 373 NW2d 249 (1985).
"The basis for indemnification rests upon the equitable principle of a right to restitution. Dale v Whiteman, 388 Mich 698, 704; 202 NW2d 797 (1972). In Michigan, a right to indemnity may arise from three sources: the common law, an implied contract, and an express contract. Skinner v D-M-E Corp, 124 Mich App 580, 584; 335 NW2d 90 (1983). Except where the right is based upon an express contract, a right to indemnity may be enforced only where liability arises vicariously or by operation of law from the wrongful acts of the party from whom indemnity is sought. Skinner v D-M-E, supra; Dale v Whiteman, supra. In other words, a right to indemnification based upon common law or implied contract is only available to a party who can plead and prove freedom from active fault. Skinner v D-M-E, supra. Furthermore, an implied contract to indemnify arises only if there is 'a special relationship between the parties or a course of conduct whereby one party undertakes to perform a certain service and impliedly assures indemnification.’ Palomba v East Detroit, 112 Mich App 209, 217; 315 NW2d 898 (1982).”
On appeal, Riise argues that the trial court erred in concluding that it could not prove freedom from active fault. Riise points out that the original plaintiffs complaint alleged only breach of implied warranties, rather than "active” negligence. This argument was rejected in Clark Equipment, supra, where it was noted that the Supreme Court in Prentis v Yale Manufacturing Co, 421 Mich 670; 365 NW2d 176 (1984), held that "in an action against a manufacturer of a product based on an alleged defect in the design of the product, the theories of breach of implied warranty and negligence involve indentical evidence and require proof of the same elements”. Clark Equipment, supra, p 101. Therefore, in basing its claim against Riise on breach of implied warranties, the original plaintiff did in fact allege that Riise was guilty of active negligence.
The inquiry does not end here, however, because the allegations contained in Riise’s third-party complaint require that we address a controversy which surrounds the case of Hill v Sullivan Equipment Co, 86 Mich App 693; 273 NW2d 527 (1978). In Hill, the original plaintiff brought suit against the designer and manufacturer of a screw conveyor for injuries sustained when his arm became caught in the conveyor. The manufacturer filed a third-party complaint against the original plaintiff’s employer, alleging that the conveyor was originally designed with a protective cover, but that the employer explicitly rejected the design and insisted on installation of the machine without the cover. As in the case now before us, the third-party complaint alleged that the conveyor was to be inaccessible to workers while the machine was in operation. On these facts, the Hill majority found that the third-party plaintiff should have been permitted to proceed to trial on its implied contractual indemnity claim.
In subsequent cases, panels of this Court have construed Hill as standing for the proposition that freedom from active fault is not a precondition to an implied contractual indemnity claim, and on that basis have declined to follow the opinion. See Skinner v D-M-E Corp, 124 Mich App 580, 585; 335 NW2d 90 (1983); Johnson v Bundy, 129 Mich App 393, 399, fn 5; 342 NW2d 567 (1983); Feaster v Hous, 137 Mich App 783, 791; 359 NW2d 219 (1984). However, as noted in Reed v St Clair Rubber Co, 118 Mich App 1, 10; 324 NW2d 512 (1982), and Clark Equipment Co v Jones & lamson, supra, p 99, Hill was unique in that the allegations of the third-party complaint, if proven, would establish that the sole cause of plaintiffs injury was the third-party defendant’s negligence. Thus, in permitting the case to go to trial, the Hill majority did not conclude that freedom from active fault was not a precondition to recovery under an implied contractual indemnity theory. Rather, the majority held only that the third-party plaintiff should be given an opportunity to prove that it was in fact completely free of any active fault in bringing about the injury.
We believe that the third-party plaintiff in the case before us should be given the same opportunity. Taking the allegations contained in Riise’s complaint as true, as we must when reviewing an appeal from an order granting summary judgment under GCR 1963, 117.2(1), Abel v Eli Lilly & Co, 418 Mich 311, 323-324; 343 NW2d 164 (1984), it would appear that Riise was completely without fault in connection with the death of Virgil Kirin. As in Hill, the employer ordered the construction of a product which was to be inaccessible to workers and specifically approved a design which did not include guardrails. Any fault on the part of Riise was even further removed by J & L’s modification of the platform to provide for human access, and then its rejection of a recommendation to completely enclose the platform’s perimeter with guardrails. If Riise can successfully establish these facts at trial, the only conclusion which can reasonably follow is that Riise was free fo active fault and cannot on that basis be denied recovery on its implied contractual indemnity claim.
Reversed and remanded for trial. | [
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(Supplemental Opinion)
Before: D. E. Holbrook, Jr., P.J., and R. B. Burns and K. B. Glaser, JJ.
Per Curiam.
On November 19, 1985, we released an opinion in this case finding that the trial court erred in allowing the introduction of evidence that plaintiff failed to wear his seat belt. That evidence was improperly used to establish plaintiffs comparative negligence. We found no other error in the original trial. We "[Reversed and remanded for a new trial consistent with this opinion”. Hierta v General Motors Corp, 147 Mich App 274; — NW2d — (1985).
Subsequently, plaintiff filed a motion for clarification and defendant filed a motion for direction, both motions seeking further explanation by this Court on the scope of the remand ordered by our original opinion. Plaintiff "assumes” that our original opinion requires retrial on all issues, while defendant argues that a retrial on the issue of comparative negligence only is required. Since we believe that a more complete explanation of the scope of remand that we intend would be helpful to the parties and to future litigants, the motions for clarification and direction are granted.
At trial, the jury returned a special verdict which found defendant liable on a negligence count but not liable on a breach of warranty claim. The jury further found that plaintiffs total damages were $50,000, but that plaintiff himself was negligent to the extent of 95%. Thus, plaintiff only received 5% of the $50,000. As discussed in our original opinion, plaintiff on appeal only challenged the introduction of the seat belt evidence and the jury’s verdict of no cause of action on the breach of warranty claim. We reversed on the seat belt issue, but left undisturbed the verdict on the warranty claim. Hierta, p 281.
The question of whether a remand for new trial solely on the issue of comparative negligence is appropriate has not been directly addressed by a court in this state. However, this Court in Sweetman v State Highway Dep’t, 137 Mich App 14; 357 NW2d 783 (1984), a case in which a member of this panel participated, did order a remand for a redetermination of comparative negligence without specifically considering whether such a remand was available.
In Sweetman, this Court concluded that the trial court, which sat without a jury, erred in applying the rescue doctrine in determining that the plaintiff was 75% negligent. It remanded for the trial court to determine if the rescue doctrine did apply and, if so, to redetermine plaintiffs comparative negligence in accordance with the principles set forth in the opinion.
The general principle of the availability of new trials limited to "some of the issues” is embodied in the court rules. MCR 2.611(A)(1). Furthermore, it is accepted that where liability is clear, a new trial may be limited to the issue of damages. Brewster v Martin Marietta Aluminum Sales, Inc, 145 Mich App 641; 378 NW2d 558 (1985). However, the Supreme Court has expressed disapproval of this practice, but will allow it "where the liability was clear”. Trapp v King, 374 Mich 608, 611; 132 NW2d 640 (1965).
Although this issue has not been addressed by a Michigan court, it has been addressed in other jurisdictions. In Bauman v Crawford, 104 Wash 2d 241; 704 P2d 1181 (1985), the Washington Supreme Court concluded that the jury had been improperly instructed on the issue of the plaintiffs own negligence. The jury found the plaintiff 95% negligent. The court concluded that a remand on the issue of liability only was necessary:
"Petitioner’s trial occurred when the comparative negligence statute was still in effect * * *. Under that statute, the jury determined the question of liability separately from the question of damages, by way of a special verdict form. On that form, the jury first deter mined respondent’s negligence, then determined petitioner’s damages award. Lastly, the jury determined petitioner’s negligence and then applied the principles of comparative negligence to decrease petitioner’s award proportionate to his degree of negligence.
"Thus, because there is no possibility of a compromise verdict under the comparative negligence statute, a new trial on the damages issue is required only if the damages award, by itself, is so low as to require a new trial to meet the ends of justice.” 104 Wash 2d 241, —; 704 P2d 1181, 1186 (citation omitted).
See also O’Kelly v Willig Freight Lines, 66 Cal App 3d 578; 136 Cal Rptr 171 (1977) (remand on issue of apportionment of damages between plaintiff and defendant appropriate); Sturm, Ruger & Co, Inc v Day, 615 P2d 621 (Alaska, 1980) (new trial on comparative negligence only).
We conclude that adoption of a rule similar to that applied by the court in Bauman, supra, is appropriate. Thus, where an error affects only the determination of comparative negligence and the jury verdict makes it clear that neither the determination of the defendant’s liability nor the total amount of damages was affected by the error, we will remand for a new trial solely on the issue of comparative negligence. Such a rule does not adversely affect the rights of the parties since they have the opportunity to challenge the finding of the defendant’s liability and the amount of damages.
In the case at bar, the only error found by this Court was the introduction of the seat belt evidence on the issue of comparative negligence. There is no reason to assume that the seat belt evidence affected the jury’s determination that defendant was not liable on the breach of warranty claim, nor does defendant challenge the finding of liability on the negligence claim. Nor is there any reason to conclude that the evidence affected the jury’s determination of total damages, which was not challenged on appeal. Further, as in Bauman, the jury, by way of a separate verdict form, determined the issues of damages and defendant’s liability separate from the issue of comparative negligence. Thus, there is no danger of a compromise verdict.
Since the parties received an error-free trial on the issues of liability and damages, we need only remand on the issue of comparative negligence. Accordingly, the scope of the new trial ordered in our original opinion is limited to a redetermination of the issue of comparative negligence only. The findings of defendant’s liability and the total amount of damages, $50,000, is undisturbed.
Remanded for further proceedings consistent with the opinions of this Court. No costs on the motions._
Or, at least, they have not brought any claims of error affecting these issues to our attention. | [
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Per Curiam.
Defendant was convicted of assault with intent to commit murder, MCL 750.83; MSA 28.278. The jury acquitted him on a charge of first-degree criminal sexual conduct, MCL 750.520b(1)(d); MSA 28.788(2)(1)(d) arising from the same incident. Defendant was sentenced on the assault conviction to serve life in prison. Defendant now appeals raising 11 issues, none of which require reversal.
According to the victim, on the night in question she was riding in a pickup truck with defendant and his brother, Elbridge Eggleston. Elbridge was driving and indicated to the victim that they were going to rape her and turned into a parking lot. In an attempt to escape, the victim unsuccessfully tried to kick out the front windshield. Defendant and his brother then threw the victim into the back of the truck. Elbridge then entered the rear of the truck, removed the victim’s shoes, blue jeans, and underwear and then raped her. Elbridge and defendant traded places and defendant then raped her. Defendant then pulled out a pocketknife and stabbed the victim six or seven times in the chest. She tried to "play dead”, but defendant continued to repeatedly rape her.
After a while, Elbridge stopped the truck, came to the back, and told defendant to let the victim go. Defendant replied that he was "going to finish the bitch off’ and "dump her in the water”. Elbridge returned to the front of the truck and resumed driving. The victim again attempted to play dead, but when she opened one eye, defendant stabbed her again. In all, the victim was stabbed 18 times.
The victim eventually managed to throw defendant off her and attempted to climb out the rear window, but defendant restrained her. She eventually fell off the truck onto a gravel road, wearing only her socks. She ran to a nearby home, where the owners summoned the police and a rescue squad. She was treated at a local hospital for multiple stab wounds, contusions, and abrasions. A cursory examination showed no evidence of rape, but she did suffer from a collapsed right lung.
Meanwhile, a state police trooper stopped defendant and his brother, who was still driving, for speeding. While conducting a sobriety test, one of the troopers noticed the cracked windshield and, upon closer examination, found blood in the back of the truck. The troopers then looked inside the truck and found a woman’s shoe, watch, underwear, and a blood-stained knife. After reporting this information over the radio, they were informed to hold the suspects for the sheriff’s department in connection with the rape and assault. The Egglestons were taken into custody and charged with rape and assault.
At trial, defendant told a substantially different version of the events of the evening in question. He admitted that the victim had been riding with his brother and him. However, defendant stated that at one point the victim began kissing him and she soon began to perform fellatio on him. According to defendant, the windshield becáme cracked when the victim hit her head against it when Elbridge stopped the truck suddenly. At some point, defendant and the victim went into the back of the truck, where the victim became angry at defendant over his inability to have intercourse with her. She then attacked him with an electrical cord and defendant pulled his pocketknife and stabbed her in self-defense. The victim then jumped from the truck.
Defendant first claims that the trial court erred in permitting a witness to testify as to defendant’s prearrest statements denying all knowledge of any material facts. Defendant asserts that the testimony of state trooper John Norvell, recalling what defendant said when asked about the blood on the truck and his clothes, constitutes impermissible commentary on defendant’s silence. As a general rule, comment at trial about a defendant’s silence is impermissible. People v Bobo, 390 Mich 355; 212 NW2d 190 (1973).
However, Bobo is inapplicable to the instant case since this is not a situation where the defendant was silent. Instead, this is an instance where the use of a voluntary statement by the defendant is at issue. This Court has held that a Bobo analysis is inappropriate where the defendant denies knowledge of any material information, not by silence, but by a verbal statement. People v Hunt, 68 Mich App 145, 147; 242 NW2d 45 (1976).
We next consider defendant’s claim that the trial court committed reversible error in admitting into evidence statements made by the defendant after being stopped by police for speeding but before being arrested or read his rights.
Defendant claims that his statements in response to questions about the blood on his brother’s truck and his clothes were made before he was read his Miranda rights, and therefore should not have been admitted at trial. Because there is no doubt that defendant was asked about the blood, and that his Miranda rights had not been read to him at that time, the pivotal issue here is whether or not the defendant’s freedom was constrained so as to mandate the giving of Miranda warnings before questioning.
In analyzing this Miranda issue, we apply the classic "custody” analysis of Miranda. People v Paintman, 412 Mich 518; 315 NW2d 418 (1982); People v Belanger, 120 Mich App 752; 327 NW2d 554 (1982).
The most basic definition of what is "custody” is that found in Miranda, which defines this term as being "taken into custody or otherwise deprived of his freedom of action in any significant way”. 384 US 444; 86 S Ct 1612; 16 L Ed 2d 706. Several years later, the Court cautioned against reading this too broadly, particularly in a "noncustodial” situation:
"Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. * * * Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him 'in custody.’ It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.” Oregon v Mathiason, 429 US 492, 495; 97 S Ct 711; 50 L Ed 2d 714 (1977). (Emphasis in original.)
Consequently, this Court has recently defined "custody” as "whether the defendant could reasonably believe that he was not free to leave”. People v Blackburn, 135 Mich App 509, 518; 354 NW2d 807 (1984).
Applying the Blackburn definition in light of Mathiason, we conclude that defendant was not in "custody” in this case. Elbridge had been stopped because he was speeding and was being administered a sobriety test when the blood and the hole in the windshield were discovered. It was only then that defendant was asked about the blood, and at that time the state troopers, while possibly suspicious, were still operating as if it were a routine traffic stop. Not until after the radio request from the sheriffs department came in did they "hold” the defendant, and that was several minutes after defendant had made the statements at issue. The whole time defendant was sitting in his brother’s truck, not in the patrol car. At no point before or during defendant’s statement did he have any reason to believe he would not be free to go after his brother received a citation.
We now consider whether the trial court erred in permitting prosecution witnesses to testify as to statements made by a codefendant. Defendant contends that two statements by Elbridge, recounted by prosecution witnesses, constituted inadmissible hearsay. The first, recounted by the victim, referred to a statement made while she was being driven home by the Egglestons:
"Q. When you left, you left Jan’s at that point?
"A. Yes.
”Q. Where did you go?
"A. They said they was taking me home and turned. We went around to Oakwood and then we turned on Oakwood, and Oakwood turns into Fort Street as you keep going down, but when we got up by Blue Jackets, Elbridge said what would you say if we said we was gonna rape you?”
The second, recounted by both state trooper Michael Scott and trooper John Norvell, dealt with Elbridge Eggleston’s response to questioning by the troopers (after being stopped for speeding) as to the source of the blood on his truck:
”Q. When you came back to the back of the truck there with the driver, which would be Elbridge Eggleston, and Trooper Scott, was this the first time you noticed this blood?
"A. Yes, sir.
"(?. When you noticed it, what did you do? Did you make any remark?
"A. I directed Trooper Scott’s attention to it.
"Q. What happened at that point?
"A. At that point, we inquired of the driver the origin of the blood on the vehicle.
”Q. Did he give you any idea where it came from?
"A. He told us his brother had taken the truck deer hunting.”
Neither of these statements constitute hearsay testimony, as they were not introduced to prove the truth of the matter asserted. Instead, there were two other purposes for the introduction of this testimony. First, it was introduced simply to show a statement was made, and this will not constitute hearsay. People v Cortez, 131 Mich App 316; 346 NW2d 540 (1984); People v Garcia, 31 Mich App 447; 187 NW2d 711 (1971). Second, and this is particularly applicable to the victim’s statement, the testimony was introduced to show the effect of the statement on the hearer, which also does not constitute hearsay. People v Lee, 391 Mich 618; 218 NW2d 655 (1974). The victim’s statement was not introduced to prove that the Egglestons intended to rape her, and the trooper’s testimony was not intended to establish that defendant had or had not gone deer hunting, or even that Elbridge knew the truth or falsity of his statement. Consequently, the trial court did not err.
We now consider defendant’s argument that the trial court erred by allowing use of evidence of two of defendant’s prior felony convictions without articulating on the record the factors considered in determining their admissibility, contrary to the requirements of MRE 609(a)(2). While one panel of this Court has mandated articulation on the record as required by the rule, People v Terryes Johnson, 122 Mich App 172; 333 NW2d 32 (1982), this is not indicative of the recent trend in decisions. The vast majority of the panels of this Court which have ruled on this issue over the past three years have held that, regardless of the language of MRE 609(a)(2), the failure of the trial court to articulate on the record the factors considered in ruling on the admissibility of evidence of prior convictions does not mandate reversal. See e.g., People v Gendron, 144 Mich App 509; 376 NW2d 143 (1985); People v Cummings, 139 Mich App 286; 362 NW2d 252 (1984); People v Ferrari, 131 Mich App 621; 345 NW2d 645 (1983); People v Steele, 115 Mich App 758; 321 NW2d 804 (1982).
We agree with the recent statement of this Court in Gendron, supra, p 517:
"Instead, we conclude that the failure to comply with MRE 609(a) is harmless error if the record reveals that the trial court was aware of its discretionary power to exclude the use of the evidence of prior convictions.”
In the case at bar, a review of the transcripts indicates to us that the trial court was aware of its discretion and did not affirmatively misapply the applicable factors. Therefore, we conclude that any error present on this issue is harmless.
The next issue to be considered is whether the trial court abused its discretion in allowing certain evidence to be presented by the prosecution in rebuttal, which defendant claims properly belonged in the people’s case in chief.
The decision to admit evidence in rebuttal is within the trial court’s discretion. People v Daleo, 43 Mich App 386; 204 NW2d 315 (1972). A defendant’s conviction should be reversed because evidence was improperly allowed in at rebuttal only if the error was "so egregious as to result in a miscarriage of justice”. People v Etchison, 123 Mich App 448, 451; 333 NW2d 309 (1983).
The evidence in question is photographs of defendant taken shortly after his arrest and a map of Monroe County. This evidence was used to contradict defendant’s testimony that the victim had assaulted him and his statement as to where the victim exited from the truck. We do not believe that the admission of this evidence was improper.
Finally, we consider whether the trial court abused its discretion in sentencing defendant to life in prison. Defendant first claims that the court improperly scored the offense under the sentencing guidelines by failing to take into account the mitigating circumstances. It is clear to us that the court did not deviate from the sentencing guidelines. After scoring defendant’s offense and prior record variables, he is placed in the HID range, which recommends a minimum sentence range of 180 months to life. Defendant’s sentence is within this range.
Had the trial court concluded that mitigating circumstances did exist, the offense would have been scored at the IID range, with a minimum sentence range of 72 to 120 months. However, we do not believe that a trial court is required to score a mitigation variable simply because the defendant requests it or because mitigation was raised at trial. The court did consider all mitigating circumstances in making his sentencing decision, but simply did not consider the evidence of mitigation significant enough to justify reducing the offense rating. The trial court was within its power and authority to do so. It cannot be said that the sentence imposed departed from the guidelines.
Nor does the sentence imposed shock our conscience. People v Coles, 417 Mich 523; 339 NW2d 440 (1983). The victim suffered a brutal attack at the hands of defendant, having been stabbed some 18 or 19 times. The attack was terminated only by the fact that the victim was able to jump from the moving truck and reach a place of safety before defendant and his brother could find her once again. A review of the sentencing transcript indicates that the trial court was deeply incensed at this crime, a feeling which we share. We find no abuse of discretion by the trial court in sentencing defendant to life in prison.
We have considered the various other issues raised by defendant on appeal and conclude that they require neither reversal nor discussion.
Affirmed.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
We recognize that a "focus” analysis has been advanced, with the key determination being whether a criminal investigation has "focused” on the defendant at the time of the questioning. People v Brannan, 406 Mich 104; 276 NW2d 14 (1979); People v Reed, 393 Mich 342; 224 NW2d 867 (1975); People v D’Avanzo, 125 Mich App 129; 336 NW2d 238 (1983).
In the instant case, there was no investigation occurring at the time defendant was asked about the blood. Thus, there could be no "focus” and that test is not applicable. The key question is whether or not defendant was in "custody” when he made the objected-to statements. | [
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Danhof, C.J.
Claimant, Bruce Farrell, appeals as of right from a circuit court order reversing a decision of the Michigan Employment Security Commission Board of Review. The board had reversed a decision of its hearing officer who had determined that claimant was excluded from benefits under § 43(h) of the Michigan Employment Security Act, MCL 421.1 et seq.; MSA 17.501 et seq. The hearing officer upheld his decision at a redetermination hearing.
Claimant was employed by the Automobile Club of Michigan as an insurance salesman. He sold homeowners, life and automobile insurance. He was compensated on a straight commission based upon a percentage of the premiums paid for the homeowners and life insurance policies he sold. However, claimant was compensated on a unit plan for the sale of automobile insurance policies. Under the plan, claimant was paid a fixed amount according to the type of auto insurance coverage sold (e.g., mandatory, uninsured motorist, comprehensive or collision coverage). Under the unit plan compensation system, claimant’s income fluctuated so that the more insurance he sold the more income he received. Approximately 90% of his income was calculated based upon the unit plan compensation system.
After claimant’s employment was terminated for unacceptable work performance, claimant was offered alternative employment which he refused to accept. He then sought unemployment benefits. Claimant raises three issues on appeal.
Claimant first contends that the circuit court exceeded its authority when it reversed the board’s decision that claimant was not excluded from the act’s coverage under MCL 421.43(h); MSA 17.547(h). He further claims that the circuit court should have deferred to the board’s decision, in light of the board’s expertise in this field, unless the ruling was contrary to the great weight of the evidence contained in the record before the circuit court.
A circuit court may review questions of fact and law on the record made before the board and may review a final order of the board, but may reverse an order only if it finds that the order is contrary to law or is not supported by competent, material, and substantial evidence on the whole record. MCL 421.38(1); MSA 17.540(1). From our review of the opinion issued by the circuit court, it appears that the sole issue raised there was a legal one. The circuit court concluded that the narrow and technical definition of "commission” given by the board to the disputed statutory provision, MCL 421.43(h); MSA 17.547(h), was contrary to law. The circuit court determined that a broader definition of "commission” was warranted in light of the principle of statutory construction found in Equitable Trust Co v Milton Realty Co, 261 Mich 571; 246 NW 500, aff'd on rehearing 263 Mich 673; 249 NW 30 (1933), and in light of the common-law definition of "commission” found in Smith v Starke, 196 Mich 311; 162 NW 998 (1917). Thus, the circuit court acted within its authority to review the board’s decision.
The circuit court was not required to defer to the board’s interpretation of the statutory exclusion, because there is no indication in the record that the board had followed a long-standing interpretation. Further, the circuit court’s scope of review was not limited to whether substantial evidence supported the board’s decision, because no factual issues were presented to the circuit court.
Claimant next argues that the circuit court erred when it reversed the board’s order which had interpreted the term "commission” narrowly. The act excludes from coverage employment defined as follows:
"Service performed by real estate salespersons, sales representatives of investment companies, and agents or solicitors of insurance companies who are compensated principally or wholly on a commission basis.”
The act does not define "commission”, and there is no legislative history to guide us in determining the Legislature’s intent. The primary rule in interpreting the act is to ascertain and give effect to the Legislature’s intent; all other rules of construction merely serve as guides to assist the courts in determining intent with a greater degree of certainty. Banks v Ford Motor Co, 123 Mich App 250, 253; 333 NW2d 239 (1983).
The circuit court applied a rule of statutory construction that when words are adopted having a well-known common-law meaning, they are used with the common-law meaning unless a contrary intent of the Legislature is shown. Equitable Trust Co v Milton Realty Co, supra, p 575. The circuit court then turned to the common-law definition of the word "commission” adopted by the Michigan Supreme Court in Smith v Starke, supra, p 314, which provides:
"The word 'commission’ implies a compensation to a factor or other agent for services rendered in making a sale. Mooney v Hough, 84 Ala 80-92 (4 So 19); 1 Bouvier’s Law Dictionary, p 548; Ralston v Kohl’s Adm’r, 30 Ohio St 92-98; Rogers v Duff, 97 Cal 66-69 (31 P 836).”
Although the legal issue raised here (i.e., the interpretation of "commission”) was decided by the Smith Court in another context, namely compensation of a real estate broker, we are persuaded that the circuit court could properly apply the broader definition. Support for acceptance of a broader definition is found in the decisions of other jurisdictions which have had occasion to consider the issue. American National Ins Co v Keitel, 353 Mo 1107, 1112; 186 SW2d 447 (1945) (the word "commission, when used to denote compensation for work performed, as is ordinarily understood, means compensation paid upon results achieved”). See also Commonwealth Life & Accident Ins Co v Board of Review of the Dep’t of Labor, 414 Ill 475, 484; 111 NE2d 345 (1953). See generally, Anno: Insurance Agents or Salesmen as Within Coverage of Social Security or Unemployment Compensation Acts, 39 ALR3d 872, §§ 5, 8, 9.
Further, the common-law definition is a reasonable one which gives every clause and word of the statute some force and meaning. United Ins Co v Attorney General, 300 Mich 200, 203-204; 1 NW2d 510 (1942). Anomalous results would be seen if an insurance salesman’s disqualification from coverage under the act depended upon the rate of his commission, (i.e., a percentage basis commission instead of a unit plan). The circuit court properly noted that the distinguishing feature of a commission is that payment of a commission is contingent upon the successful completion of sale transactions. We conclude that the circuit court correctly held that the board made an error of law in its interpretation of "commission”.
We are not required to determine whether claimant was excluded from coverage because he was principally compensated on a commission basis in light of our disposition of the previous issue.
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V. J. Brennan, J.
Defendant Sam Edward Denmark was convicted on August 25, 1975, in Grand Traverse County Circuit Court of first-degree criminal sexual conduct contrary to MCLA 750.520b(l)(b); MSA 28.788(2)(l)(b). On September 5, 1975, he was sentenced to serve from 2 to 15 years in prison and was credited with 82 days spent in county jail prior to sentencing. He appeals as of right.
The facts giving rise to this prosecution are not complicated. On June 14, 1975, defendant and his wife Janet stopped at her parents’ residence in Traverse City. In the afternoon, defendant, his wife and his wife’s younger sister Linda went fishing. Linda, complainant in this case, was 13 years old at the time, and resided with defendant’s in-laws at their home in Traverse City.
After returning from fishing, arrangements were made with defendant’s in-laws to enable defendant and his wife to attend a drive-in movie, after which they were to return to pick up their fish. During the movie, defendant became somewhat inebriated. Defendant experienced car trouble on the way home from the movie and left his wife in the car while he walked to his in-laws’ house to get help. Defendant apparently arrived at his in-laws’ house after 1 o’clock in the morning on June 15, 1975.
Upon arrival, defendant went to the room where Linda was sleeping and proceeded to have intercourse with her against her will. The victim informed her parents of defendant’s assault immediately after he left the premises. Her parents contacted the state police. A state trooper escorted Linda to the hospital where she was examined and released. Defendant was arrested on the same day the offense occurred. While in custody, and after being informed of his rights, defendant confessed his responsibility for the crime.
At his preliminary examination, at trial, and now on appeal, defendant raises several constitutional and procedural challenges to the statute under which he was charged. We will discuss each one.
Defendant initially argues that MCLA 750.520b(l)(b); MSA 28.788(2)(l)(b) is unconstitutionally vague. We do not believe so.
MCLA 750.520b(l)(b); MSA 28.788(2)(l)(b) reads as follows:
"(1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:
♦ * *
"(b) The other person is at least 13 but less than 16 years of age and the actor is a member of the same household as the victim, the actor is related to the victim by blood or affinity to the fourth degree to the victim, or the actor is in a position of authority over the victim and used this authority to coerce the victim to submit.”
Count I of the amended information under which defendant was charged reads:
"I. did engage in sexual penetration with another person, to-wit: Linda Kay Schopieray, said defendant being related to the victim by blood or affinity to the fourth degree; Contrary to Sec. 750.520b(l)(b), C.L. 1970; MSA 28.788(2)(l)(b).”
Count II was added at the conclusion of the preliminary examination at the district court’s suggestion and alleges that defendant used force or coercion to accomplish penetration. MCLA 750.520b(l)(f); MSA 28.788(2)(l)(f).
Defendant contends that the new criminal sexual conduct statute defines neither the term "affinity” nor the phrase "in a position of authority”. As a consequence, defendant could not know in advance that his alleged intercourse with the prosecuting witness was a criminal offense, thereby demonstrating that the statute is unconstitutionally vague. We do not subscribe to this theory.
Defendant does not have standing to assert that the phrase "in a position of authority” is unconstitutionally vague because he was not charged under that language. People v Conville, 55 Mich App 251, 254-255; 222 NW2d 312 (1974).
The term "affinity” is neither an unusual nor esoteric word; nor does the statute use the term in an uncommon or extraordinary context. Our courts have provided clear, legal definition of the concept on numerous occasions:
"An examination of authorities had led to the conclusion that the doctrine of affinity relationship should be limited by the following rule: Affinity is the relation existing in consequence of marriage between each of the married persons and the blood relatives of the other, and the degrees of affinity are computed in the same way as those of consanguinity or kindred. A husband is related, by affinity, to all the blood relatives of his wife, and the wife is related, by affinity, to all the blood relatives of the husband.” Bliss v Caille Brothers Co, 149 Mich 601, 608; 113 NW 317 (1907).
We also find that intercourse with a female under 16 years of age has been a crime prior to the enactment of the new statute. 1952 PA 73; MCLA 750.520; MSA 28.788. Under the new statute, intercourse with a female between the ages of 13 and 16 always amounts to at least third-degree criminal sexual conduct, even absent "affinity” or one of the other circumstances increasing the crime to criminal sexual conduct in the first degree. MCLA 750.520d; MSA 28.788(4). Consequently, we see little merit to the position that defendant lacked adequate notice under the new statute because of the unconstitutional vagueness assigned the word "affinity”. See generally People v Howell, 396 Mich 16; 238 NW2d 148 (1976).
Defendant next contends that the trial court committed reversible error in denying his motion to quash because the provisions of 1974 PA 266; MCLA 750.520a et seq.; MSA 28.788(1) et seq., modify prior rules of evidence with respect to rape cases. Defendant’s claim is that the Legislature is without authority to modify rules of evidence, a function said to be exclusively within the province of the judiciary, and that the new statute is consequently unconstitutional.
Three sections of the new act affect evidentiary questions in prosecutions for criminal sexual conduct.
MCLA 750.520h; MSA 28.788(8) provides that the testimony of the victim need not be corroborated in prosecutions for any offenses charged under sections MCLA 750.520b; MSA 28.788(2) to MCLA 750.520g; MSA 28.788(7)—that is, any charge from first-degree criminal sexual conduct through assault with intent to commit criminal sexual conduct. Under MCLA 750.520Í; MSA 28.788(9), a victim need not prove resistance in prosecutions brought for offenses under MCLA 750.520b; MSA 28.788(2) to MCLA 750.520g; MSA 28.788(7). MCLA 750.520j; MSA 28.788(10) limits the admission of evidence of the victim’s past sexual conduct in prosecutions under MCLA 750.520b; MSA 28.788(2) to MCLA 750.520g; MSA 28.788(7).
Defendant’s argument that the Legislature does not have the authority to modify common-law rules of evidence is without merit. Such authority is expressly granted by GCR 1963, 16, and recognized in GCR 1963, 601. The evidentiary sections of the criminal sexual conduct act stand as a legitimate exercise of legislative authority until superceded by court rule, Perin v Peuler (On Rehearing), 373 Mich 531; 130 NW2d 4 (1964), GCR 1963, 16, or unless found to have constitutional defects.
Defendant alleges the district court erred reversibly by binding him over on an additional count under MCLA 750.520b(l)(f); MSA 28.7880X1X0. We disagree.
The original complaint charged defendant with violation of MCLA 750.520b(l)(b); MSA 28.788(2)(l)(b), which was previously statutory rape with the added factor of a special relationship between the victim and the accused. During the preliminary examination, complainant Linda Schopieray testified that defendant hit and threatened her. Defendant placed nothing in evidence to refute the testimony of the victim. At the conclusion of the preliminary examination, the district judge suggested the inclusion of an additional count under MCLA 750.520b(l)(f); MSA 28.7880X1X0, which requires use of force to accomplish penetration. In his discretion, the prosecutor acted on this suggestion and added the second count. People v Matulonis, 60 Mich App 143, 149; 230 NW2d 347 (1975).
We believe defendant was acquainted enough with the proceedings to be aware of the criminal sexual conduct alleged in the second count. We also do not believe the district court abused its discretion by failing to require prosecution to elect between the counts. People v Stinson, 58 Mich App 243, 259; 227 NW2d 303 (1975).
However, we need not reach these questions because of later developments at trial. At the close of prosecution’s case in chief, defendant moved for a directed verdict on the second count. The trial court granted defendant’s motion on grounds that no physical injury to the victim had been shown. Consequently, we have found such error harmless beyond a reasonable doubt in similar circumstances in a bench trial. People v Oster, 67 Mich App 490, 498-499; 241 NW2d 260 (1976). We see no prejudice in the context of a jury trial which would prevent us from applying the same principle here. We find no reversible error.
Defendant next argues that the definition of "penetration” contained in MCLA 750.520a(h); MSA 28.788(l)(h) is unconstitutionally vague. We do not believe so.
In order to challenge statutory language as unconstitutionally vague, the following must be shown:
" 'A law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide without any legally fixed standards, what is prohibited and what is not in each particular case.’ Giaccio v Pennsylvania, 382 US 399, 402; 86 S Ct 518, 520; 15 L Ed 2d 447, 450 (1965).” People v Otis Adams, 34 Mich App 546, 549; 192 NW2d 19 (1971), aff'd in part, rev’d in part, 389 Mich 222; 205 NW2d 415 (1973).
Sexual penetration is defined under the statute as:
"sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body, but emission of semen is not required.” MCLA 750.520a(h); MSA 28.788(1)00.
On the basis of the complaining witness’s testimony and defendant’s confession, we have no trouble sustaining the jury finding that defendant had sexual intercourse with complainant. In his instruction, the trial court defined penetration in those terms:
"The third element is sexual penetration. By sexual penetration we mean sexual intercourse, however slight, of any part of a person’s body into the genital opening of another person’s body.”
We believe defendant and jury were adequately informed on the element of penetration. We also believe the standard set by the definition of penetration is not so vague as to leave the public without a concrete estimate of its legal meaning. See Kalita v Detroit, 57 Mich App 696, 700-703; 226 NW2d 699 (1975).
We also note that prior law closely paralleled the new statute by use of the concept of penetration. People v Kirtdoll, 391 Mich 370, 394; 217 NW2d 37 (1974), People v Harper, 43 Mich App 500, 509; 204 NW2d 263 (1972).
Finally, because no First Amendment right is involved here, any challenge to the statute on its face for reasons of vagueness must be examined in relation to the facts of the case at hand. People v Howell, supra, at 21. We feel the facts of this case do not outweigh the right of the Legislature to enact such provisions under its general police power. We do not find the term "penetration”, as defined by the new act, unconstitutionally vague.
Defendant next complains that the criminal sexual conduct statute violates the Michigan Constitution of 1963, art 4, § 24 by embracing more than one object. We do not agree.
The apparent legislative purpose of 1974 PA 266 was to proscribe forms of criminal sexual conduct. Pursuant to that purpose the act contains subsections dealing with corroboration, MCLA 750.520h; MSA 28.788(8); proof of resistance, MCLA 750.520Í; MSA 28.788(9); and admissibility of evidence, MCLA 750.520j; MSA 28.788(10).
We have found these provisions do not impermissibly modify prior rules of evidence. We also find they do not violate Const 1963, art 4, § 24. The title to an act should be given a broad reading and need not index all the contents in the act. People v Milton, 393 Mich 234, 241; 224 NW2d 266 (1974). In Milton, the Court held:
"When passing new legislation, the Legislature is free either to enact an entirely new and independent act or amend any act to which the subject of the new legislation is 'germane, auxiliary or incidental’.
* * *
"Not infrequently there will be a number of existing acts to which the new legislation would be germane, auxiliary or incidental. The legislative choice will not be held invalid merely because an alternative location for the new legislation might appear to some more appropriate.” (Footnotes omitted.) People v Milton, supra, at 241.
We believe the procedural provisions are "ger mane, auxiliary or incidental” to the object intended. We find no constitutional error.
Reversible error is alleged because the trial court refused to suppress defendant’s confession. We disagree.
The determination of whether a confession was voluntary is a factual question for the trial judge. People v Robinson, 386 Mich 551, 557; 194 NW2d 709 (1972). The sole purpose of a Walker hearing is to determine the fact of voluntariness and a reviewing court is only concerned with the correctness of that determination. See People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
The record reflects that defendant was informed of his rights on two separate occasions. Defendant testified he was literate and had finished the ninth grade. He also testified that no threats or inducements of any kind were employed by the police. He further testified that he read his typewritten statement carefully and found no inaccuracies. Defendant never informed the police about his feeling he was not entitled to an attorney and eventually admitted he understood he was entitled to one.
Under these circumstances, we feel the trial court correctly denied defendant’s motion to suppress the confession.
Defendant next contends the trial court erred by refusing to grant his motion for mistrial after prosecution’s medical expert testified she had taken a vaginal smear from complainant and pathologist had found sperm present.
The measure by which we judge denial of a motion for mistrial has been stated in the following way:
“The trial court’s denial of a motion for a mistrial will not be reversed unless it is demonstrated that such a denial constituted an abuse of discretion.” People v Coffman, 45 Mich App 480, 487; 206 NW2d 795 (1973).
Dr. Esslinger was the physician who conducted the examination of the complaining witness. The prosecutor asked the witness if she had made any findings regarding the presence of sperm. The witness answered that she had and stated that she had taken a smear from the complainant. The smear had been examined by a pathologist and found to contain sperm. The trial court sustained an objection by defendant. Plaintiff next called Dr. Tang, the pathologist who analyzed the smear. When he began testifying about the results, defendant objected on the basis the chain of evidence had not been established. The objection was sustained. While being processed, the slide had been in custody of a nurse, and the trial court felt the nurse would be required to testify before the pathologist’s testimony could be admitted. Prosecution rested its case at this point, and defendant moved for mistrial due to Dr. Esslinger’s testimony.
We do not find an abuse of discretion in the court’s denial. Dr. Esslinger’s statement that a pathologist had found sperm, though hearsay, was immediately objected to and the objection was sustained. The trial judge later instructed the jury to disregard evidence and testimony which he had ruled to be inadmissible. Defendant did not request a specific curative instruction in regard to this hearsay statement. Finally, there was ample proof of penetration by the victim’s testimony and defendant’s confession. Proof of ejaculation is not necessary. We find no miscarriage of justice. MCLA 769.26; MSA 28.1096. People v Christensen, 64 Mich App 23, 32; 235 NW2d 50 (1975), People v Robinson, supra, at 563.
Defendant argues lastly the trial judge erred by denying jury instructions stating (1) complainant was an admitted perjurer whose testimony should be discounted and (2) defendant could be convicted of "attempted penetration”. No error exists here.
We do not believe complainant’s contradictory statements about prior sexual conduct entitled defendant to an instruction that she was a perjurer. People v Longaria, 333 Mich 696, 699; 53 NW2d 685 (1952).
Neither do we believe an instruction on "attempted penetration” is appropriate where the statute itself provides for, and the court instructs on, the lesser charge of second-degree criminal sexual conduct; MCLA 750.520c; MSA 28.788(3). A charge in the second degree applies where there is only proof of contact, rather than penetration. Evidence in this case would support no other charge. We find applying the general attempt statute is proper only where no express provision for attempts exists in the statute charged. MCLA 750.92; MSA 28.287. See People v Richard Banks, 51 Mich App 685, 688, 692; 216 NW2d 461 (1974).
Having reviewed all allegations of error and finding them without merit, we sustain the judgment in the trial court.
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Bashara, P. J.
The plaintiff, Melvin Jordan, was injured at work while using a drain cleaner manufactured by the appellant. He and his wife brought an action against the appellant alleging negligence, breach of warranty, and improper labeling of a hazardous product.
The appellant brought a third-party action, GCR 1963, 204, against the appellee, the employer of the plaintiff, for contribution and indemnification. The appellee moved for summary judgment on the third-party complaint for failure to state a claim upon which relief could be granted, GCR 1963, 117.2(1), and the motion was granted. Appellant seeks review.
Our first consideration is whether the exclusive remedy provision of the Workmens’ Compensation Act, MCLA 418.131; MSA 17.237 (131), as amended by 1972 PA 285, § 1, removed the bar against a third-party impleader action for contribution against an employer, which was previously recognized to exist in Husted v Consumers Power Co, 376 Mich 41; 135 NW2d 370 (1965).
At the time Husted was decided the exclusive remedy provision of the Workmens’ Compensation Act provided:
. "Where the conditions of liability under this act exist, the right to the recovery of compensation benefits as herein provided, shall be the exclusive remedy against the employer. ” (Emphasis supplied.) 1943 PA 245, § 4.
It appeared to the Supreme Court that the intent of the Legislature, by this provision and its predecessors, was to grant an employer "outright and absolute immunity from liability [except as provided in the act] stemming from each compensable injury”. Husted v Consumers Power Co, supra, at 53. Consequently, the Court held that this section destroyed a third party’s claim for contribution. Husted v Consumers Power Co, supra, at 54.
By 1969 PA 317, § 898 the Legislature repealed 1943 PA 245, § 4, and enacted a new Workmens’ Compensation Act, Ray v Transamerica Insurance Co, 46 Mich App 647, 652; 208 NW2d 610 (1973), which adopted substantially the same exclusive remedy provision. 1969 PA 317, § 131, MCLA 418.131; MSA 17.237(131). Subsequently, the exclusive remedy provision was amended by 1972 PA 285, § 1, which states:
"The right to the recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer. As used in this section and section 827 'employee’ includes the person injured, his personal representatives and any other person to whom a claim accrues by reason of the injury to or death of the employee, and 'employer’ includes his insurer, a service agent to a self-insured employer, and the accident fund insofar as they furnish, or fail to furnish, safety inspections or safety advisory services incident to providing workmen’s compensation insurance or incident to a self-insured employer’s liability servicing contract.” (Emphasis supplied.)
The appellant asserts that since it is not an employee, it is not barred from seeking contribution.
We need not answer that contention. The decision in Husted v Consumers Power Co, supra, at 54-56, not only premised its decision on 1943 PA 245, § 4, but also concluded that the clear weight of authority prohibited contribution where there was no common liability between the third party and the employer.
The substantive rights and liabilities of all present parties are determined according to the law at the time the plaintiffs’ claims accrued on May 3, 1973. Husted v Consumers Power Co, supra, at 47. A right to contribution between joint tortfeasors existed at the time this action accrued pursuant to 1961 PA 236, § 2925(l). Parties are not joint tortfeasors if their acts are different and separate, and neither party has control or influence over the acts of others. Geib v Slater, 320 Mich 316, 320; 31 NW2d 65 (1948). It is apparent that the appellant and appellee are not joint tortfeasors for the purposes of contribution under 1961 PA 236, § 2925(1).
In Moyses v Spartan Asphalt Paving Co, 383 Mich 314, 334; 174 NW2d 797 (1970), the Supreme Court overruled what was left of Michigan’s common-law bar to contribution between nonintentional wrongdoers. To be entitled to contribution under these rules, it is required that the, wrongdoers owe a "common liability” to the plaintiff. Caldwell v Fox, 394 Mich 401, 420; 231 NW2d 46 (1975), Moyses v Spartan Asphalt Paving Co, supra, at 330.
The Court in Husted found the decision of Baltimore Transit Co v State, 183 Md 674, 679; 39 A2d 858, 860 (1944), most valuable to its analysis. That case discussed common liability as follows:
"We think these provisions make it clear that the Act is only applicable to a situation where there is a common liability to an injured person in tort. Such liability may be joint or several, but there can be no contribution where the injured person has no right of action against the third party defendant. The right of contribution is a derivative right and not a new cause of action.”
In the case at bar the appellee’s liability is purely statutory pursuant to the Workmens’ Compensation Act, and is not dependent upon culpability. The appellant’s liability, on the other hand, is grounded upon plaintiffs’ allegations of negligence, breach of warranty, and improper labeling of a hazardous product. There is no common liability. See 18 Am Jur 2d, Contribution, § 48, pp 69-70.
Moreover, the appellant’s right of contribution is derivative of the plaintiffs’ rights. Since the plain tiffs cannot sue the appellant, neither can the appellee.
The appellant’s remaining issue dealing with indemnification is controlled by Judge N. J. Kaufman’s excellent opinion in Minster Machine Co v Diamond Stamping Co, 72 Mich App 58; 248 NW2d 676 (1976).
Affirmed. Costs to appellee.
Formerly MCLA 411.4; MSA 17.144.
1969 PA 317, § 131:
"Where the conditions of liability under this act exist, the right to the recovery of compensation benefits as provided in this act shall be the exclusive remedy against the employer.”
MCLA 600.2925(1); MSA 27A.2925(1), repealed by 1974 PA 318, §2.
In Moyses v Spartan Asphalt Paving Co, 383 Mich 314, 335; 174 NW2d 797 (1970), Justice Black in overruling the common-law bar against unintentional wrongdoers and in adopting the equitable principles of contribution refers us to 18 Am Jur 2d, Contribution, §§ 1-63, pp 6-95. | [
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D. E. Holbrook, J.
On May 19, 1973, Manuel Lee Johnson, defendant, was convicted by jury of armed robbery, contrary to MCLA 750.529; MSA 28.797, and was sentenced to prison for 7 to 20 years. He appeals as of right.
On the evening of November 14, 1972, at approximately 7:30, a black male, identified by Irene Zawacki, complainant at trial, as the defendant, entered Zawacki’s Party Store in Jackson, Michigan and purchased a package of cigarettes. Mrs. Zawacki was tending the store at the time. The defendant had his left hand in his pocket and it appeared to be bulged. As defendant left he looked over the whole store. The complainant was apprehensive and called her husband on the phone; and he said he would come right down. The defendant returned to the store a few minutes later, entered and walked towards the complainant, at which time he pulled a nylon stocking from underneath his stocking cap to hide his face, which complainant said she had already seen about 10 to 15 minutes before. When defendant entered the store the second time, the complainant pressed the panic button (call for the police). Defendant came up to complainant and said: "[T]his is a hold-up. I want your money.” At the time the complainant said she observed inside his jacket either a zipped pocket or a cut pocket and a gun protruding from it. The handle of the gun had a diamond criss-cross in it. Mrs. Zawacki gave the defendant the bills in the cash register at which time he said: "I want it all.” She pulled the drawer out as far as she could and said: "That is all. * * * What about the change?” The defendant said: "I want the change too.” Mrs. Zawacki, after trying twice, pulled out the quarters and put them on the counter. Defendant grabbed them and ran out of the store. There was approximately $150 taken. Only Mrs. Zawacki and the defendant were in the store at the time of the robbery.
Shortly thereafter the defendant was arrested near the scene of the crime, while driving a blue Chevrolet Impala automobile with personal initials on the side, fitting the description of the automobile used by the robber. He was searched and had on his person $79.15, including nine $1 bills, seven $5 bills, three $10 bills, and a bunch of quarters. Detective Stiles Brown took a statement from the defendant on November 15, 1972. The trial court conducted a Walker hearing and determined that the statement given by defendant to Officer Brown was voluntary, that the warning given to defendant satisfied Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966), and that defendant waived his rights thereunder. Officer Brown testified that defendant told him that he committed the robbery and that he had an accomplice, but declined to name the accomplice. The account of defendant as to what happened that night accorded with Mrs. Zawacki’s testimony at trial. He said the gun he used was thrown from the car into the Grand River. Two witnesses for the prosecution testified that about 7:30 on the night in question they observed an automobile similar to the one defendant was driving parked crossways with its motor running in a lot neighboring the party store. One testified he saw a black man sitting inside the car at the time, and moments later observed the car pulling away with two people inside. The defendant presented the defense of alibi. Although admitting he was in the store about 6 p.m., he testified he did not return and was at his brother-in-law’s at the time of the claimed robbery. His brother-in-law and nephew testified, mainly supporting the testimony of the defendant. Defendant denied his alleged confession to Officer Brown and disputed the account of his statement to Detective Lowe, as Detective Lowe had reported it.
Ia
Defendant asserts error in the police submitting pictures including defendant’s for identification purposes to the complaining witness without counsel for the defendant being present.
Defendant cites the case of People v Anderson, 389 Mich 155, 168-169; 205 NW2d 461, 466-467 (1973) , as authority for defendant’s position that photographs of an accused person may not ordinarily be displayed to witnesses, if defendant is known to be in custody or can be readily produced for a lineup, and, if such a photographic showing is had, the accused is entitled to an opportunity to request and obtain counsel. The defendant in this case was known to be in custody and could have been readily produced for a lineup. If there were no other facts, we would be compelled to remand for the purpose of determining whether the complainant’s identification of the defendant has an independent source. However, as is stated in People v Jackson, 391 Mich 323, 341; 217 NW2d 22, 29 (1974), before such a remand is necessary, there must be a showing that there had been photographic identification by the witness or witnesses. In the instant case, Mrs. Zawacki testified she could not recall the photographic showing; and the police officer who testified he had showed Mrs. Zawacki the pictures of several persons, including defendant, said she did not identify any of the pictures as belonging to defendant. Without an identification being made of defendant at the photographic showing, any subsequent identification of defendant by the complainant would necessarily have to be independent of such showing. The testimony in the case shows that the complainant had ample time and took particular care to observe the defendant on the two occasions when he was in her store on the night in question. We find no reversible error as to this issue.
Ib
Defendant claims that the observation of defendant by complainant at three scheduled preliminary examination proceedings constituted a one-on-one confrontation so impermissibly suggestive as to render the admission of complainant’s in-court identification a denial of due process of law.
The defendant was present for a preliminary examination on three occasions: the first time he requested counsel; the second time his counsel desired adjournment for time to prepare the case; the third time the defendant waived preliminary examination. At each time Mrs. Zawacki was required to be present in order to testify. There is no question but that she observed defendant while in attendance at court at these times. There is a discrepancy as to how long she may have observed the defendant on each of these occasions. Defendant was in a holding room at the rear of the courtroom out of sight of the complainant a good share of the time.
Defendant bases his claim of reversible error in this regard on the case of People v Solomon, 391 Mich 767; 214 NW2d 60 (1974), adopting Chief Judge T. J. Lesinski’s dissent in 47 Mich App 208, 216; 209 NW2d 257, 260 (1973). It is well to ob serve the holdings per Chief Judge Lesinski’s opinion as follows:
1. A preliminary examination is a pretrial confrontation within the meaning of Stovall v Denno, 388 US 293; 87 S Ct 1967; 18 L Ed 2d 1199 (1967);
2. In ascertaining whether a confrontation is impermissibly suggestive a court must look to the "totality of circumstance” in the particular case;
3. Particularly important factors include (a) the time between the criminal act and the confrontation, and (b) the length of time that the complainant-eyewitness is with the defendant during the offense;
4. Factors peculiar to the Solomon case are: (a) allegation of police suggestions that defendant was the offender; (b) a 2-1/2 year duration between the confrontation and the robbery; (c) the identification of defendant at the preliminary examination was the only identification made by complainant; and (d) the preliminary examination was held in the judge’s chambers.
5. The rule of the Solomon dissent is narrow; it does not establish the principle that all confrontations at preliminary examinations are impermissibly suggestive.
In the instant case, there was no allegation of any police suggestions. The length of time between the robbery and the in-court indentification was six months. There was no identification of defendant at the preliminary examination, since he waived examination. The proceedings, while they lasted, took place in the courtroom, and defendant was placed in a holding room at the rear of the court. The complainant had ample time to observe defendant just prior to and during the robbery.
The following colloquy took place between complainant and the defense counsel at trial:
”Q. But, your identification was aided by the fact that you saw him in the lower court, is that correct?
"A. In person. True.
”Q. In person. Right. And, that was always without the benefit of anybody else in the same close proximity, which was Mr. Johnson’s same size, weight, build, that sort of thing, is that true?
'A. True.”
The complainant also testified that she observed the defendant at the slated preliminary examinations only "[w]hen he was visible and in my sight”. Moreover, the defendant testified that complainant saw him while he was in the holding room at the proceedings. "[S]he did come by and she glanced in the window and looked right at me.”
The above testimony shows: (1) that the complainant did not continually observe the defendant for a total of six to nine hours as the defendant now suggests; (2) that the observations at the pretrial proceedings did in fact aid the complainant in her in-court identification; and (3) the one-on-one nature of the observations may have been suggestive.
At trial defense counsel inter alia moved the complainant’s testimony be striken on the grounds they were dependent upon the "lower court” (pretrial) observations. The trial court ruled that "[t]here is sufficient evidence before the court, separate and apart from her visual contact with the defendant at the lower court examination, so that there is no taint to the extent that her testimony is inadmissible in full, because it is not reliable”. Although the complainant did admit on cross-examination that the observations aided her in-court identification, this is not to say that but for the observation she would not have been able to identify the defendant at trial. On the contrary, the two separate occasions — -just prior to and during the robbery — that complainant observed the defendant are significant. Under the totality of circumstances the nature of the pretrial in-court observations were not so impermissibly suggestive as to constitute a denial of due process by admitting the complainant’s identification testimony at trial.
We rule that the trial court’s ruling was not clearly erroneous.
II
Did the trial court commit reversible error in failing sua sponte to give a cautionary instruction on identification testimony?
The defendant asserts that in adhering to the spirit of People v Anderson, 389 Mich 155; 205 NW2d 461 (1973), an instruction to the jury is required on the inherent unreliability of eyewitness identification. Further, defendant asserts that this Court should by analogy apply a requirement that the judge instruct sua sponte regarding testimony of an accomplice.
Defendant did not at trial request either instruction nor did he object to the failure of the trial judge to give such instruction. As a general rule a failure to request an instruction or to object to the failure to give an instruction precludes defendant from raising the issue on appeal. MCLA 768.29; MSA 28.1052; GCR 1963, 516.2; People v Maybee, 44 Mich App 268, 272-273; 205 NW2d 244, 247 (1973), and cases cited therein. We must now determine if there is an exception to this rule with respect to cautionary instructions on identification testimony. In the cases of People v McIntosh, 6 Mich App 62, 69; 148 NW2d 220, 223 (1967), and People v Floyd, 15 Mich App 284; 166 NW2d 506 (1968), this Court ruled that a failure to request or timely object to an instruction on identification is fatal to an objection on appeal. We rule that the defendant’s claim that the trial court should have sua spon te instructed the jury on an accomplice’s testimony is untenable, because our Court in the case of People v Dupuie, 52 Mich App 510, 514; 217 NW2d 902, 904 (1974), concluded:
"While defendant was probably entitled to an instruction as to the caution with which an accomplice’s testimony should be viewed, there is no need for the trial court to give such an instruction sua sponte. Defendant’s failure to request such an instruction precludes his raising such failure as error on appeal.”
Defendant further asserts that we recognize that an instruction on identification testimony is included in the "essential ingredient” category and is required under the case of People v Liggett, 378 Mich 706, 714; 148 NW2d 784, 788 (1967), wherein it is stated:
"It is settled law of this State that the trial judge should instruct the jury in criminal cases as to general features of the case, define the offense and indicate that which is essential to prove to establish the offense, even in the absence of request.”
Liggett indicates certain matters including the elements of the crime, the burden of proof, and the general features of the case come under the "essential ingredient” category. We conclude that eyewitness testimony does not fall within the Liggett mandate.
Ill
Was the defendant’s constitutional privilege against compulsory self-incrimination impinged when the prosecutor elicited testimony from a prosecution witness, questioned defendant on cross-examination and commented in his closing argument on a conflict between the testimony of defendant at trial and what he had allegedly stated or failed to state in his statements to the police?
Defendant refers to his statement as testified to by Detective Lowe:
"Q. (by Mr. Grant, assistant prosecuting attorney): I see. What if anything did he tell you?
”A. He said that he was not on Cooper Street, knew nothing about an armed robbery. Said that he had come in possession of the car that he was arrested in about 7:30 in the evening. I asked him to account for the money that was found in his possession, and he could not. He said he was not employed.
”Q. He gave you no answer where that money may have come from or how it came into his possession?
"A. No sir, he did not.”
Parenthetically, contrary to defendant’s indications that trial counsel objected to the above testimony because it violated defendant’s right to remain silent, trial counsel voiced an objection only after the testimony of Lowe was complete. The objection, made out of the presence of the jury, concerned the alleged failure of the prosecutor to give trial counsel notice that the exculpatory statements of defendant to the police officer would be introduced. The trial court overruled the objection, and the issue is not raised on appeal. On cross-examination defendant testified in part as follows:
”Q. (Mr. Grant): Did he ask you where the money had come from the $79 and some cents?
'A. Yeah.
"Q. What did you tell him?
“A. Like I told him I earned it.
"Q. Did you tell him how?
"A. He didn’t ask me how.”
The prosecutor made the following comments as to the conflicting testimony:
"Detective Lowe testified that he asked Mr. Johnson about this money on the night of December 14th or November 14th, 1972. Mr. Johnson could not account for it, when he got the money. But, yesterday, almost six months later, when he took the stand, Mr. Johnson knew exactly where he had come up with this $79. Detective Lowe said he couldn’t tell him on the night of the 14th. There is another situation where somebody is not telling the truth — either Detective Lowe is getting on the stand and lying under oath that this is what Mr. Johnson told him or Mr. Johnson is being less than truthful with us, or over the period of six months now he remembers where he got the money on the night of the 14th, that was found in his possession.
* * #
"Mr. Johnson’s explanation of where that money came from. Mr. Johnson took the stand. He didn’t tell us why that night he didn’t tell the detective that it was his brother-in-law that gave him the money.”
It appears from Detective Lowe’s account of the statement that defendant did not indicate in any manner that he was exercising his right to remain silent, but rather an inability to come up with an explanation during an ongoing conversation with the detective. This accords with the fact that defendant did not object to the statement at trial on the now-asserted grounds.
Under these circumstances we are constrained to rule that defendant did not exercise his right to remain silent, and thus, the testimony as admitted and the closing argument of the prosecutor were proper.
Affirmed.
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). | [
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Per Curiam.
On July 2, 1973 defendant entered a plea of guilty to a charge of unarmed robbery, MCLA 750.530; MSA 28.798. The plea was accepted, and the defendant was sentenced to a term of 3 to 15 years in prison and he appeals as of right.
On appeal, defendant claims that the trial judge did not inform him of the maximum sentence for the offense to which the plea was offered as required by GCR 1963, 785.7(l)(b). An examination of the plea transcript substantiates this allegation, although we note from the plea transcript that the assistant prosecutor did state the maximum sentence. This, however, is insufficient compliance with the court rule. See People v Hubbard, 57 Mich App 542; 226 NW2d 557 (1975); People v Shekoski, 393 Mich 134; 224 NW2d 656 (1974).
Reversed and remanded for a new trial. | [
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Bashara, J.
This appeal arises out of a suit for damages by plaintiff tenant against its defendant landlord for the loss of profits sustained during a 17-day delay in the opening of plaintiff’s new store in the Genesee Valley Shopping Center. The jury awarded plaintiff damages of $27,000.
Plaintiff, a ladies retail store, entered into a lease agreement on January 6, 1969 whereby defendant was to construct a 55-store shopping mall. Each tenant was responsible for the construction of all interior work. Defendant’s main activity is to purchase and develop shopping centers, primarily for the J. L. Hudson Company. J. L. Hudson was to be a tenant of Genesee Valley. It was stipulated at trial that defendant in November of 1969 told plaintiff, and the other tenants, they should expect to open in July of 1970. On May 13, 1970 defendant sent a tentantive schedule of promotional activities for a July 14-16 grand opening to plaintiff. Towards the end of May labor problems were experienced in the construction industry. Some of the stores were able to continue construction while others were not. On June 30th, the defendant determined that except for the Hudson’s store, it would be necessary to postpone the grand opening. Plaintiff was notified of this on July 1 and was allowed to open on August 3, 1970.
At the close of plaintiff’s proofs, defendant moved for a directed verdict and then for a judgment notwithstanding the verdict. Defendant ar gued that there was no evidence to support a finding that they had promised plaintiff it could open on July 14, 1970. Defendant also contended that plaintiff’s proofs showed a promise only of a "mid-summer opening”.
It is axiomatic that when reviewing a motion for a directed verdict the facts must be viewed in the light most favorable to the non-moving party. Kieft v Barr, 391 Mich 77; 214 NW2d 838 (1974); Oliver v St Clair Metal Products Co, 45 Mich App 242; 206 NW2d 444 (1973).
Since there was no express contract, plaintiff’s claim must rise or fall on the applicability of the promissory estoppel doctrine. In the case of In re Timko Estate, 51 Mich App 662, 666; 215 NW2d 750 (1974), it was stated that in order for a promise to be enforceable under this doctrine, "there must be a (1) promise that the promisor should reasonably have expected to induce action of a definite and substantial character on the part of the promisee, (2) which in fact produced reliance or forbearance of that nature, (3) in circumstances such that the promise must be enforced if injustice is to be avoided”. See also Dunnan & Jeffrey Inc v Gross Telecasting Inc, 7 Mich App 113; 151 NW2d 194 (1967).
The issue thus becomes whether plaintiff produced evidence sufficient to go to the jury on the question of promissory estoppel. There were a series of letters and communications by various officers of defendant corporation informing plaintiff and other tenants to prepare for a July 14-16 opening. A letter was produced from defendant’s vice-president of development to plaintiff which stated in part:
"The Grand Opening at Genesee Valley is July 16, 1970. It is imperative that all of our tenant’s cash in, so to speak, on the large amount of customers that we are expecting at the Center during the Grand Opening days. This means that your construction department should get their contractors moving in order to complete your store so that you will be opened and doing business with the public on these days.
"We here at Shopping Centers, Inc. are spending hundreds of thousands of dollars in advertising and promotions to get people to come to our Center. As an example we are sending 60,000 invitations to 60,000 homes inviting these people to the Invitational Community Preview Days which will be on Tuesday, July 14th and Wednesday, July 15th.”
Plaintiff’s interior contractor, utilizing a series of photographs taken on July 14-16, testified that construction was completed to the point where plaintiff could have opened on July 14. Officers of plaintiffs corporation testified that key personnel had been hired for a July 14-16 opening. Most of the inventory was on hand for the date in question, and budget sheets had been prepared. Testimony showed that by preparing for an opening in reliance on defendant’s promise, injustice could have been avoided only if defendant kept its promise.
After reviewing the lengthy transcript, we hold that plaintiff did satisfy its burden of going forward on its theory of liability. The crucial issue must then be whether the trial court was correct in allowing speculative evidence as to loss of profits to be considered by the jury.
Although plaintiff operated other stores in the Flint area, the store in question was a new one and had no previous operating history.
The authority in Michigan is conflicting on whether a new business can recover lost profits as an aspect of damages. The more frequently stated rule allows no recovery of lost profits for a new business since there is no way to estimate losses. Stimac v Wissman, 342 Mich 20; 69 NW2d 151 (1955); Stern Co v Friedman, 229 Mich 623; 201 NW 961 (1925); Jarrait v Peters, 145 Mich 29; 108 NW 432 (1906). The rationale given for the rule is that prospective profits are too speculative and uncertain. Other cases have held that if prospective profits are provable with a reasonable degree of certainty, they can be recovered. Kezeli v River Rouge Lodge IOOF, 195 Mich 181; 161 NW 838 (1917); see also dissenting opinion of Judge O’Hara, in Fera v Village Plaza, Inc, 52 Mich App 532; 218 NW2d 155 (1974). In Kezeli, supra, p 188, where the Court denied recovery of lost profits, Justice Stone wrote, "Without holding that loss of profits may not upon proper showing be the basis of recovery, we must hold that no sufficient foundation was here laid for such recovery”.
In Isbell v Anderson Carriage Co, 170 Mich 304, 318; 136 NW 457 (1912), the Court wrote:
"It has sometimes been stated as a rule of law that prospective profits are so speculative and uncertain that they cannot be recognized in the measure of damages. This is not because they are profits but because they are so often not susceptible of proof to a reasonable degree of certainty. Where the proof is available, prospective profits may be recovered, when proven, as other damages. But the jury cannot be asked to guess. They are to try the case upon evidence, not upon conjecture.”
We agree with the opinion in Kezeli, supra. The sole reason for refusing to admit proof of prospective profits is that the proof may be too speculative to submit to the jury. Where a plaintiff can present proofs that are reasonably certain, he should be allowed to make his case.
In the instant matter the sheer volume of testimony did not remove plaintiffs attempted proofs of lost profits from the realm of speculation. Plaintiffs proof of the amount of lost profits depended wholly on a determination of the quantity of sales plaintiff would have made between July 14 and August 3, 1970. Mr. Sidney Melet, president of plaintiff, testified lost sales would have equaled $100,000. Michael Melet testified lost sales would have equaled $110,000. Neither witness was able to state factual reasons for their opinion other than that there were a large number of people who attended Hudson’s opening on July 14-16, 1970.
Plaintiff also offered Mr. Joseph Klein, its consultant, as an expert witness. He testified that the sales for the period in question would have equaled 175% of the sales made on the first 17 days plaintiff was open. He admitted on cross-examination that his estimate was speculative but reasonable in his opinion.
Defendant objected to the introduction of the three witnesses’ testimony concerning the amount of lost sales. Defendant argues that before expert testimony is admissible there must be a foundation for their opinion, other than mere conclusions.
We are in accord with defendant’s position; there must be facts in evidence to support an expert’s opinion. O’Dowd v Linehan, 385 Mich 491; 189 NW2d 333 (1971). In Kennedy v Bay City Taxi Cab Co, 325 Mich 668, 670; 39 NW2d 220 (1949), Chief Justice Sharpe wrote quoting from 82 ALR 1340 that:
" 'While there is some conflict on the question, it is held by the weight of authority that an expert witness having personal knowledge, must, before giving his opinion, state the facts upon which he bases it, and that he cannot, without disclosing the facts, give his opinion directly, or take them into consideration in answering hypothetical questions.’ ”
Plaintiff, citing Uganski v Little Giant Crane & Shovel, Inc, 35 Mich App 88; 192 NW2d 580 (1971), and Redinger v Standard Oil Co, 6 Mich App 74; 148 NW2d 225 (1967), argues that the testimony by its officers was competent expert testimony to establish lost sales. In Redinger, supra, there was virtually no discussion by this Court on the question of expert testimony. In Uganski, supra, the Court did allow an estimate of lost business with proofs similar to this case. However, in that case there was a six-year prior operating history from which to estimate lost business. While it is true here that plaintiff is an existing business it had no prior operating history in its new store.
A thorough review of the record discloses that no evidence was presented to the jury regarding damages other than the loss of profits. This fact was confirmed by the trial judge in his discussion with the attorneys in chambers at the conclusion of his charge to the jury. Plaintiff did not introduce any direct evidence on the question of out-of-pocket expenses. It chose to rely solely on the recovery of lost profits. We conclude that plaintiff’s testimony regarding lost sales was so speculative that the jury should not have considered it. Since there were no other proofs on damages which a jury could have considered, we hold that as a matter of law a directed verdict should have been granted in defendant’s favor.
Plaintiff has cross-appealed in this action contending that the court erred in dismissing the breach of contract count in its complaint. A review of the record and briefs discloses no merit in plaintiffs contention.
Reversed, with instruction to the trial court to enter a judgment in favor of defendant.
Costs to defendant.
The actual opening to the public was to be on July 16, 1970; however a private opening was scheduled for the 14th. | [
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V. J. Brennan, J.
Defendant, John Lovett, was charged with manslaughter (MCLA 750.321; MSA 28.553), in connection with the death of Nancy Marie Wolf which occurred as a result of an automobile accident on November 6, 1972. Defendant pled guilty to an added count of negligent homicide (MCLA 750.324; MSA 28.556), and was sentenced to from 16 to 24 months in prison. Defendant now appeals.
On June 27, 1973, defendant offered a plea of guilty to the added count of negligent homicide. The trial court rejected this plea, however, because the facts elicited during the questioning of defendant did not establish a factual basis for the plea. The case was thereupon set for trial.
On September 21, 1973, when the parties appeared for the pretrial conference, defendant’s attorney informed the court that defendant again would like to offer a plea of guilty to the added charge. The trial judge proceeded to question defendant as to his desire to plead guilty and as to what occurred on the day of the accident. The trial judge also asked defendant if he remembered the preliminary examination and whether he was satisfied that the witnesses there testified truthfully. Defendant answered both questions in the affirmative. After receiving assurances from both the defense counsel and the prosecuting attorney that the testimony adduced at the preliminary examination was admissible evidence for plea-taking purposes, the trial judge adjourned the proceedings to give himself an opportunity to read the preliminary-examination transcript. Having done so, the trial judge returned to the courtroom, asked defendant a few more questions, satisfied the remaining requirements of GCR 1963, 785.7 and then accepted defendant’s plea.
Defendant contends that the trial judge’s use of the preliminary-examination transcript at the guilty-plea proceeding requires the reversal of his conviction. We disagree.
In People v Schneff, 392 Mich 15; 219 NW2d 47 (1974), our Supreme Court held that it was error for a trial judge to use a preliminary-examination transcript to establish part of the factual basis for a plea of guilty. After examining previous decisions which dealt with establishing a factual basis, the Court stated:
"It is our opinion that MCLA 768.35; MSA 28.1058 requires the trial court to derive the factual basis for a guilty plea directly from defendant or through testimony developed at a full adversarial trial.”
The Court did not, however, reverse defendant SchnefFs conviction. The Court held that sufficient facts were adduced from defendant’s testimony at the guilty-plea proceeding, apart from those contained in the preliminary-examination transcript, to provide a factual basis for the plea. The Court therefore affirmed the acceptance of defendant’s plea of guilty. See also, People v Zuniga, 56 Mich App 231; 223 NW2d 652 (1974). While Schneff involved a guilty plea which was accepted before the effective date of the new court rule, the standard by which the case at bar must be judged, we do not find anything in the new court rule which requires that we follow a different procedure. Accordingly, we shall proceed to examine the facts adduced at the guilty-plea proceeding, apart from those contained in the preliminary-examination transcript, to determine whether a factual basis for defendant’s plea was established.
At the time defendant offered his plea of guilty he testified that on November 6, 1972, he was operating a motor vehicle on Riverview Avenue in the City of Monroe, Michigan at a speed of approximately 30 miles per hour. The speed limit in this area was stated to be 25 miles per hour. Defendant stated that as he was driving down Riverview Avenue he struck a car driven by the deceased in the rear end. When questioned about how the accident occurred, defendant stated that the deceased must have pulled out from in front of another car because he didn’t see her. When questioned further he stated that the deceased’s car was on the street in front of him but that he didn’t see it. He acknowledged, however, that he did hit her and that her death was due to the injuries she suffered as a result of the accident. The question becomes, therefore, whether the above facts establish a factual basis for a plea of guilty to negligent homicide. We believe this question must be answered in the affirmative.
Defendant was driving his automobile in excess of the speed limit established for the area and hit the deceased’s car in the rear with enough force to cause injuries severe enough to result in death. While the fact that defendant exceeded the speed limit is not sufficient, in and of itself, to establish that defendant was operating his vehicle "at an immoderate rate of speed”, MCLA 750.326; MSA 28.558; People v Spence, 250 Mich 573; 231 NW 126 (1930), we feel that the fact of his speeding, when considered together with the facts that defendant failed to maintain a proper lookout and was unable to stop his vehicle in time, provided a sufficient factual basis for this plea. Important to our decision in this regard are the facts that defendant hit the deceased’s vehicle in the rear and that defendant could only offer a possible explanation of where the deceased came from. These facts adequately show that defendant simply was not maintaining a proper lookout and that, because of this and because of his speed, he was unable to stop in time. On the basis of these facts we hold there was a sufficient factual basis for defendant’s plea and affirm his conviction. See People v Fedderson, 327 Mich 213; 41 NW2d 527 (1950).
By way of a supplemental brief filed in this Court defendant seeks to raise an additional argument. Since the issue presented therein was recently decided adversely to defendant’s position by our Supreme Court in the case of People v Milton, 393 Mich 234; 224 NW2d 266 (1974), it is clear that defendant’s claims in this regard no longer have any merit.
Conviction affirmed.
The fact that defendant’s attorney consented to the procedure here employed does not serve to eliminate the error or require a different analysis. The same was also true in Schneff but the Court stated that this did not affect the result because the procedures required in the plea process "may not be waived by the defendant”. People v Schneff, 392 Mich 15, 26, fn 3; 219 NW2d 47, 53 (1974).
People v Schneff, supra, at 25-26; 219 NW2d at 53 (footnote omitted).
GCR 1963, 785.7(3) provides, in relevant part:
“(3) Determining Factual Basis for Plea.
"(b) The court shall not accept a plea of guilty until it is satisfied that a crime was committed and, through personal interrogation of the defendant, that defendant participated therein.
"(c) 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.” | [
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R. B. Burns, P. J.
The Cherry Hill Bar in Detroit was robbed at gunpoint by two men. One of the bar’s patrons at the time of the robbery was an off-duty policeman, Stanley Rapaski. Officer Rapaski had his service revolver with him and attempted to stop the robbery. Gunshots were exchanged; one of the thieves was wounded in the leg; and officer Rapaski was killed. After awhile, defendant, wounded in the leg, turned himself in to the police. He was tried and convicted of felony murder. MCLA 750.316; MSA 28.548. He appeals the conviction.
During the course of defendant’s trial, the prosecution called Cedric Baker as a witness. Baker was allegedly present when defendant and another man prepared to rob the Cherry Hill Bar. He was allegedly present when they returned from the robbery; and he helped them dispose of what he knew to be the fruits of the robbery. When Baker was produced at trial, the defense contended that he was an accomplice to the robbery and that, therefore, the prosecution had no right to cross-examine him like other res gestae witnesses. People v Fidel; 37 Mich App 338; 194 NW2d 732 (1971); People v Lewis, 47 Mich App 450; 209 NW2d 450 (1973); and People v. Szymanski, 52 Mich App 605; 218 NW2d 95 (1974). The prosecution relied upon MCLA 767.40a; MSA 28.980(1) for its authority to cross-examine. The defense never examined the witness.
Michigan law does require the prosecution to produce all res gestae witnesses. MCLA 767.40; MSA 28.980. Because it is obliged to call these witnesses, the prosecution is not expected to vouch for their credibility and may treat them as if they were called by the defense. MCLA 767.40a; MSA 28.980(1). But it is well settled that an accomplice does not have to be called. People v Threlkeld, 47 Mich App 691; 209 NW2d 852 (1973).
"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.” Fidel, supra, at 342-343.
In short, since the prosecution did not first have Baker declared a hostile witness, it was error to allow him to be cross-examined by the prosecution.
This error was compounded because the prosecution used the cross-examination to impeach the witness. Baker could not remember anything relating to the crime even after he had been read his signed confession (out of the jury’s presence). As a result, the prosecutor began to ask him, in front of the jury, if he had ever made specific admissions (extracted from the confession) to police officers. Baker always failed to remember. This line of questioning was properly objected to, but the objection was overruled on the ground that the questioning was permissible for impeachment purposes. Since the existence of such a confession was never directly proven, the questioning was not permissible for that purpose. 1 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 438, pp 538-542; 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), §611, pp 791-792; and McCormick, Evidence (2d ed), §34-37, pp 67-75. The questioning had merely laid the foundation for the admission of Baker’s confession. As that was not submitted for admission, the questioning was immaterial, and the better practice would have been to instruct the jury to disregard it.
Defendant also claims that it was error to delve into the substance of Baker’s prior statement once it had been determined that he could not remember either the substance or having made the statement. People v Durkee, 369 Mich 618; 120 NW2d 729 (1963). While there is dicta in Durkee disapproving of the prosecution tactic that brings a witness to the stand primarily to impeach him with otherwise inadmissible and highly prejudicial material, the rule of that case concerned the adequacy of the trial court’s instruction to negate the impact the prior statement had on establishing the substantive elements of the prosecution’s case. The trial judge’s instructions were far more adequate here than those in Durkee, supra. It is still the law in Michigan that a witness can be impeached with prior inconsistent statements, even if he does not remember them, once the proper foundation is laid. People v Brown, 45 Mich App 505; 206 NW2d 730 (1973); People v Rodgers, 36 Mich App 211; 193 NW2d 412 (1971); Rodgers v Blandon, 294 Mich 699; 294 NW 71 (1940); Pringle v Miller, 111 Mich 663; 70 NW 345 (1897); and Smith v People, 2 Mich 416, 417-418 (1852).
While the prosecution was erroneously allowed to cross-examine its own witness and to confront that witness with immaterial prejudicial material, we must determine if these errors were so substantial as to require a new trial. The standard to be applied here is outlined in People v Robinson, 386 Mich 551, 563; 194 NW2d 709, 713 (1972), quoting from People v Wichman, 15 Mich App 110, 116; 166 NW2d 298, 302 (1968):
" '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?’ ”
We believe we can answer both questions in favor of a finding of harmless error. This witness’ time on the stand consumed a very small portion of the trial’s time. There were two positive eyewitness identifications of defendant as one of the armed thieves. Defendant’s fingerprints were found (on a liquor glass) at the scene of the crime exactly where the thieves had been. Defendant was seen wounded in the leg at the robbery, and he had a gunshot wound in his leg when he turned himself in to the police a short time later. His getaway car was identified down to four digits on its license plate. Furthermore, the jury instructions in this case were more specific and potent than those in Durkee, supra, when directing the jury to use evidence of a prior inconsistent statement only for assessment of credibility. In short, the possible impact of the errors was miniscule, at best, when compared with the overwhelming weight of the evidence against defendant.
Defense counsel requested discovery of all information available to the prosecution regarding the prospective jurors. People v Aldridge, 47 Mich App 639; 209 NW2d 796 (1973). The record discloses that unlike the situation in Aldridge, supra, everything the defense sought was already publicly available except for whatever personal observations prosecutors had made about the jurors on the basis of their in-court behavior. Defense counsel had simply failed to examine or compile all of the information that was as available to him as to the prosecution. Aldridge insures that the defense has equal access to police reports on the jurors and that was done here. If defense counsel is insufficiently diligent to examine those reports before the time for jury selection, Aldridge does not require the prosecution to come to defense counsel’s aid. With regard to personal observations of fellow prosecutors, we believe that information is protected by the work-product exception outlined in Aldridge, supra, at 649-650.
We have examined the other grounds for defendant’s appeal and find them meritless.
Affirmed. | [
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Allen, J.
Each of the defendants was charged with second-degree murder, MCLA 750.317; MSA 28.549, and Stinson was also charged with sodomy. MCLA 750.158; MSA 28.355. A jury found each guilty of manslaughter, MCLA 750.321; MSA 28.553, and Stinson also guilty of attempted sodomy. Moore received a sentence of 5 to 15 years in prison; Burton was sentenced to 7-1/2 to 15 years; and Stinson was sentenced to 10 to 15 years on the manslaughter conviction and 3-1/3 to 5 years on the attempted sodomy conviction. Defendants appeal.
Initially, defendants argue that the trial court erred in denying their motions for directed verdict of acquittal on the second-degree murder charge. MCLA 750.317; MSA 28.549. According to People v Hodo, 51 Mich App 628, 639; 215 NW2d 733 (1974), such a motion may be granted only where:
"there is no evidence at all, either direct or circumstantial,. on each material element of the offense charged. In the event the requisite evidence is presented, it is submitted to the trier of fact for a determination of whether such evidence established guilt beyond a reasonable doubt.” (Omitted citations.)
We must examine the evidence in a light most favorable to the people to determine whether the charge of second-degree murder was properly submitted to the jury. People v Watkins, 36 Mich App 380, 385; 193 NW2d 914 (1971), aff'd, 388 Mich 717; 202 NW2d 780 (1972). We commence our examination by stating the elements of second-degree murder.
According to 3 Gillespie, Michigan Criminal Law and Procedure, § 1639, p 1973:
"To constitute murder in the second degree there must be an unlawful killing and a purpose to kill, formed suddenly, preceding and accompanying the act, without that deliberation and premeditation which distinguishes murder in the first degree, but not such sudden provocation and stirring of the passions which precludes the exercise of reason, as would, in a legal sense, exclude the idea of malice aforethought, and thereby reduce the homicide to manslaughter.”
Murder "is an unlawful, malicious killing”, and malice aforethought is an essential element of second-degree murder. People v Carter, 387 Mich 397, 416-418; 197 NW2d 57 (1972). According to People v Morrin, 31 Mich App 301, 310-311; 187 NW2d 434 (1971), lv den, 385 Mich 775 (1971):
"Malice aforethought is the intention to kill, actual or implied, under circumstances which do not constitute excuse or justification or mitigate the degree of the offense to manslaughter. The intent to kill may be implied where the actor actually intends to inflict great bodily harm or the natural tendency of his behavior is to cause death or great bodily harm.” (Footnotes omitted.)
Homicides which are "unplanned or impulsive” or committed "in the sudden heat of passion”, and which are intentional and committed with malice aforethought are murder in the second degree. Austin v United States, 127 US App DC 180; 382 F2d 129, 137 (1967). See also People v Vail, 49 Mich App 578, 591; 212 NW2d 268 (1973), lv granted, 391 Mich 789 (1974).
People v Hansen, 368 Mich 344, 350-351; 118 NW2d 422 (1962), noted that malice required either an intent to cause the specific harm that resulted;
"or some harm of the same general nature, or an act done in wanton or wilful disregard of the plain and strong likelihood that some such harm will result.”
Pursuant to the above, People v Geiger, 10 Mich App 339, 343; 159 NW2d 383 (1968); lv den, 381 Mich 753 (1968), said "an assault by blows without a weapon may, under certain circumstances, permit a jury to infer an intent to kill”. (Omitted citations.) This inference is a permissible one, People v Martin, 392 Mich 553, 561; 221 NW2d 336 (1974), and may arise "from the totality of the circumstances”. People v McBride, 30 Mich App 201, 203; 186 NW2d 70 (1971). See also People v Person, 20 Mich App 246, 249; 174 NW2d 67 (1969). The type and duration of a beating, as well as its severity and the nature in which it was carried out are factors which a jury may examine to determine "that defendant knowingly committed an act which led to the result intended”. People v McFee, 35 Mich App 227, 232; 192 NW2d 355 (1971), lv den, 388 Mich 763 (1972).
Having defined the elements of murder of the second degree we now turn to examine the evidence applicable to each defendant, and to determine whether the charge was properly submitted to the jury.
Initially, we note that medical testimony was presented which indicated that the deceased suffered from a subdural hemorrhage which resulted from an injury to the brain. In the doctor’s opinion, this damage to the brain was caused by a "blunt force injury”, and that possibly the striking of deceased’s head with fists caused that injury. Medical evidence was also received that at the time deceased was admitted to Detroit General Hospital, he was diagnosed as having suffered a subdural hematoma approximately 24 to 48 hours previous to his admission. While the doctor was unable to state exactly when this injury occurred, and although defense counsel argued that the evidence raised a question as to whether deceased had entered the jail cell with this condition already existing, we find that the evidence was sufficient to go to the jury on the question of cause of death.
On June 8, 1972, Harold Cross, age 21, having been arraigned earlier in the traffic and ordinance division of Detroit Recorder’s Court, entered ward 218 of the Wayne County jail. Among the other persons confined therein were defendants Stinson, Moore and Burton. During the evening of June 8, and the afternoon and evening of June 9, Cross was subjected to various assaults by each defendant. At approximately 11 p.m. on the evening of June 9, Cross was taken from ward 218 to Detroit General Hospital, where he never regained consciousness and where he died on June 11, 1972.
Evidence Against Stinson: Samuel Kleckley, an inmate in ward 218, testified that Stinson and Cross initially began "joking around” and exchanged a few slaps. Apparently Stinson slapped Cross, Cross returned the slap, and Stinson struck Cross again. Apparently, one thing led to another, and Kleckley then saw Stinson kicking at Cross, and Cross began to seek refuge under one of the bunks. Other inmates in the cell block had to pull Stinson away. Cross came out from underneath the bunk, stumbled, hit his head against the bars, and was placed in his bunk by other inmates. He got up again, stumbled, and returned to his bunk. He remained there until he was carried to Detroit General Hospital.
Ernest Lockett, another inmate, said that Stinson had accused Cross of being employed by the police. He also testified that he heard Stinson tell Moore to "be cool or I will kill the dude”. Lockett also testified as to a towel beating incident, in which Stinson beat Cross with a wet, knotted towel for about five minutes.
Walter Kaminski, a fellow inmate, testified that as soon as Cross entered the ward, all three defendants began to talk to him, and after dinner Cross and defendants were singing together. On that first day, Stinson had slapped Cross. On the next day, the beating with wet towels occurred, and Stinson began to beat Cross with his fists. He also kicked him, and this lasted for about ten minutes. Kaminski testified to the incident in which Cross had sought refuge underneath his bunk where Stinson kept kicking him in the legs. Kaminski testified that later that evening Stinson beat Cross again, with Cross running around trying to avoid the beating. Stinson was striking Cross with his fists and kicking him, and was throwing shoes at him. After Cross fell to the floor, Stinson kept hitting and kicking him. Stinson never quit, and Burton and Moore had to pull him off.
Ronald Bousquette, another inmate, testified that after breakfast on the second day, June 9, Stinson and Burton began to beat Cross, and also testified about the towel beating incident. Bousquette also testified about the beating which resulted in Cross lying on the floor underneath his bunk and with Stinson continuing to kick him. Bousquette testified that Stinson beat Cross with his fists and feet and had knocked Cross to the floor. Stinson continued to kick Cross once Cross was on the floor. He said that Stinson had picked up a shoe and beat Cross with it while Cross was trying to get underneath the bunk.
Evidence Against Moore: Lockett testified that Moore, nicknamed "Duck”, hit Cross in the face with his fist about three or four times while Cross was lying on the floor. This occurred on June 8. On the second day, Lockett testified that Moore was involved in the wet towel incident, and in fact said- that all defendants were involved in that activity. Lockett said that after Stinson said he would kill Cross, Moore said "I don’t care”. Kaminski testified that although Burton and Moore pulled Stinson off while he had been beating Cross, Moore subsequently became involved in the beating of Cross. While Kaminski said that he never saw Moore attack Cross, he had previously told investigating officers that Moore had assaulted Cross. He then testified that he saw Moore attack Cross, and that Moore and Stinson had told him to hit Cross or that he (Kaminski) would get the same thing. Kaminski, however, then equivocated on his testimony, and said that he never saw Moore physically or sexually assault Cross, and that all three defendants, rather than just Moore, had told Kaminski to hit Cross.
Michael Crawford, an inmate of ward 219, testified that Moore and Cross got into a fight on the night of June 8, but said that he never saw the fight. He did say that he heard Stinson and Burton tell Moore to leave Cross alone. Ronald Bousquette, an inmate of ward 218, testified that after Cross came into the jail, Moore began beating Cross with his fists. On the second evening, after Stinson had beat Cross and Cross had been placed on his bunk, Moore kicked Cross in the back of the head. Cross then "spit up some white slime” and remained in his bunk until he was taken to the hospital.
Evidence Against Burton: Lockett testified that Burton, as well as the other defendants, beat Cross with wet towels. Kaminski also testified that Burton was involved in the wet towel incident, and whipped Cross all over his body. He said that this incident lasted for about 30 minutes. The remainder of Kaminski’s testimony regarding Burton was that Burton and Moore pulled Stinson off Cross, and that Burton called for the deputy after Cross seemed to be quite ill. Crawford testified that Burton kept telling Moore not to hit Cross.
Bousquette testified that on the morning of June 9, after breakfast, Burton discovered that he was missing some cigarettes. Apparently Stinson was also missing a small cake, and Burton and Stinson "held court” on Cross regarding the smoking of Burton’s cigarettes and the eating of Stinson’s cake. Cross admitted doing both deeds, and Stinson and Burton beat Cross. Bousquette testified that Burton beat Cross with his fist for a few minutes, striking Cross’s head and chest. Cross was trying to get away, and Burton kept hitting him. Later, Stinson and Burton beat Cross with wet towels.
Examining the evidence in a light most favorable to the people, we conclude that there was sufficient circumstantial and direct evidence against all three defendants on each element of the offense of second-degree murder. It seems clear that Stinson was the "ringleader” in this morbid enterprise, and participated in most of the beatings which led to death. Moore was an active participant, with his kick to the head of Cross while Cross was lying upon his bunk, constituting a particularly incriminating factor. Finally, Burton, against whom the least amount of testimony was presented, did strike Cross with his fist, participated in the towel beating incident which extended for 30 minutes and "held court” after Cross had taken his cigarettes. We find that the evidence was sufficient to allow a jury to infer, from the total circumstances involved herein, that defendants committed acts exhibiting an intent to kill Cross or an intent to cause a harm of a similar general nature, done in a wilful and wanton disregard of the likelihood that such harm would result. The various beatings were inflicted over a two-day period, and seemed particularly brutal and severe in light of the fact that Cross was assailed many times when he was lying either upon the floor or his bunk. Thus, we find that the trial court properly denied defendants’ motion for directed verdict, and that the charge of second-degree murder was properly submitted to the jury.
Defendant Stinson also argues that the evidence was insufficient to prove sodomy, and that the trial court should have granted his motion for a directed verdict on this charge. Specifically, defendant argues that there was no proof of penetration. According to MCLA 750.159; MSA 28.356, "any penetration, however, slight”, was sufficient to establish the offense of sodomy. Although, unfortunately, we lack testimony from the victim, we find that the testimony elicited from Lockett and Kaminski, particularly the latter’s statement that he saw Stinson insert his penis into Cross’s rectum, to be particularly persuasive and there was indeed evidence sufficient to allow this charge to go to the jury. Also, Bousquette gave an adequate description of the acts involved, and despite his later recantation that he was unable to determine whether there was penetration, we find that the evidence was sufficient to allow this question to go to the jury.
Defendants’ argument that the trial court failed to adequately explain the law of aiding and abetting as applied to the lesser offense of manslaugh ter is without merit. At trial, defense counsel merely objected to the giving of an aiding and abetting instruction on the grounds that the evidence was insufficient to support such a charge. There was no request that the trial court specifically relate aiding and abetting to the charge of manslaughter, nor was there an objection on the grounds of the trial court’s failure to do so. In such a situation, our Court generally finds that such objections have not been preserved for appellate review. People v Spaulding, 42 Mich App 492, 496; 202 NW2d 450 (1972), lv den, 388 Mich 809 (1972); GCR 1963, 516.2. We have examined the instructions at issue, and determine that they quite properly explained to the jury the law on aiding and abetting. MCLA 767.39; MSA 28.979. See People v McClary, 50 Mich App 506, 509; 213 NW2d 562 (1973). This instruction did not result in a manifest injustice to defendants.
Next, defendants argue that the trial court erred by failing to instruct the jury that extra-judicial statements made by witnesses were to be used only for impeachment purposes. During trial, witness Kleckley presented testimony which was less than helpful to the prosecutor, saying that he did not hear what defendants had previously said to deceased. The people then moved to have Kleckley declared a hostile witness, and he was then shown, out of the presence of the jury, the statement he had previously given to a sheriffs deputy regarding the activities which occurred on the night in question. Subsequent to having his memory refreshed, Kleckley testified to events at issue, and was asked by both defense counsel and the prosecutor about the previous statement made to the deputy. His credibility was not impeached, but rather, his memory was refreshed and the court had no duty to give the instruction at issue. See People v Holliday, 44 Mich App 210, 212-213; 205 NW2d 93 (1972), lv den, 391 Mich 766 (1974).
When Lockett was called to the stand, he stated "I ain’t giving no testimony”. The jury was excused, and Lockett was shown a statement he had previously given to the police. He stated that this refreshed his memory as to what he had told the police officer, but then stated that he did not remember anything. Subsequently, the jury returned to the courtroom, and Lockett was occasionally questioned as to his prior statement. Although the statement was used to refresh Lockett’s recollection, it was also used to impeach his credibility. We note that questions relating to Lockett’s prior statement were generally confined to the sodomy charge, and only two questions related to the towel-beating incident. We have previously seen that there was ample evidence presented on that point, and the error, if any, in the trial court’s failure to give the jury a limited instruction would be harmless so far as the murder charge was concerned. Thus, we confine our discussion of this issue to the sodomy charge.
Subsequent to the above testimony, defense counsel requested the trial court to instruct the jury that the extra-judicial statements should be only used to impeach the witness’s credibility, and not be used as substantive evidence. The trial judge said that he would cover this point in his general instructions. However, the trial court failed to give this limiting instruction at the end of trial. Defense counsel failed to renew his request before the jury was instructed, and voiced no objection to the trial court’s failure to instruct. People v Harrell, 54 Mich App 544, 563; 221 NW2d 411, 417 (1974) recently held:
"In the absence of a proper request or objection, the trial court’s failure to give the limiting instruction is not reversible error. People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1972).”
Assuming, arguendo, that defendant Stinson had preserved this question for appellate review, People v Charron, 54 Mich App 26, 34; 220 NW2d 216, 219 (1974), the trial court’s failure to caution the jury was harmless error in light of the other evidence of sodomy. The prosecutor, in his closing argument did not specifically refer to this impeachment testimony as showing Stinson’s guilt in the sodomy matter, and we cannot say that on the basis of this record that Stinson was denied a fair trial. See People v Paul Mathis, 55 Mich App 694, 697; 223 NW2d 310 (1974).
Previous to the selection of the jury, defense counsel requested discovery of the prosecutor’s "jury slips”. These apparently contained information on prospective jurors who had sat on other cases or who had been excused either peremptorily or for cause. This information was apparently compiled by members of the prosecutor’s staff in other trials. At first, defense counsel stated that he was not opposed to the prosecutor using the slips but that defendants would like to have that information available. He argued that fairness required that defendants be entitled to use that information also. After the prosecutor replied that this information was a request for the "work product” of the attorneys on the prosecutor’s staff, defense counsel argued that if defendants were precluded from access to this information, the trial court should order the prosecutor not to use it also. However, the trial judge ruled that this information represented the work product of the attorneys on the prosecutor’s staff and denied defense counsel’s request for this information. On appeal, defendants argue that this is prejudicial error in that it improperly allowed the prosecutor to seek a "convicting jury”. The people have responded that defendants’ argument is precluded by the unpublished per curiam opinion of People v Stowers, Docket No. 15727, released August 1, 1973.
The voting records of prospective jurors would undoubtedly be very valuable to trial counsel, and People v Aldridge, 47 Mich App 639; 209 NW2d 796 (1973), supports defendants’ argument that the trial court erred when it precluded discovery of such information. On the other hand, Judge Danhof dissented, noted that the issue should properly be resolved by the promulgation of a court rule, and agreed with the decision of United States v Falange, 426 F2d 930, 932-933 (CA 2 1970), cert den, 400 US 906; 91 S Ct 149; 27 L Ed 2d 144 (1970), in which it was stated, among other things, that the court’s focus on such an issue is, "can it be said that the jury which was sworn was prejudiced against the defendants”. 47 Mich App 639, 652-653; 209 NW2d 796, 802-803 (1973).
At the outset, we note that Commonwealth v Smith, 350 Mass 600, 603-604; 215 NE2d 897, 901 (1966), upon which the majority in Aldridge, supra, placed much reliance, 47 Mich App 639, 647-648; 209 NW2d 796, 800-801, said that while the information gathered by the police should be available to both sides, "[t]he subject could appropriately be dealt with in a rule of Court”. We align ourselves with Judge Danhof in this suggestion and on the merits of the question, and find that the record fails to disclose that the jury which was impaneled was prejudiced against defendants.
We should also point out that GCR 1963, 510.1, provides a form for a "Juror Personal History Questionnaire”. Questions 28-31 ask whether the juror had ever served as a juror, when and in what courts, whether the juror had ever been discharged from jury service, and if so, the cause of that discharge. GCR 1963, 510.3(1), provides that the completed questionnaire is to be filed with the court clerk, and 510.3(l)(c) and 510.4 allows attorneys to examine the questionnaire for use and assistance in challenging prospective jurors. See 2 Honigman & Hawkins, Mich Court Rules Anno, Author’s Comments, p 457. It is our understanding that the same or similar questionnaires are used in Recorder’s Court, and are available for counsel’s examination. We are unpersuaded that defendants were prejudiced to the extent of having been denied a fair trial, and find no manifest injustice resulting from the trial court’s denial of defendants’ request. MCLA 769.26; MSA 28.1096.
Defendants’ argument that the trial court’s jury instruction on malice aforethought and intent were misleading and erroneous, although capably argued, is without merit. The trial court’s instructions comported with Michigan case law. People v Hansen, 368 Mich 344, 350-351; 118 NW2d 422 (1962); People v Moorin, 31 Mich App 301, 310-311; 187 NW2d 434 (1971), lv den, 385 Mich 775 (1971). The trial court correctly told the jury that the difference between second-degree murder and manslaughter is the presence of malice aforethought in the former and its absence in the latter. People v Townes, 391 Mich 578, 589; 218 NW2d 136 (1974).
Defendant’s final argument is that reversible error was committed when their motion to quash the information on the basis that the elements of second-degree murder were not established at the preliminary examination was denied. According to MCLA 766.13; MSA 28.931, an examining magistrate is to bind a defendant over for trial if the magistrate determines that an offense has been committed and that there is probable cause to believe that defendant committed it. Neither the trial court nor our Court should substitute its judgment for the judgment of the magistrate, except when a clear abuse of the magistrate’s discretion has been shown. People v Sparks, 53 Mich App 452, 456; 220 NW2d 153 (1974), lv den, 393 Mich 135 (1974). See also People v Szczytko, 40 Mich App 161, 167; 198 NW2d 740 (1972), aff'd, 390 Mich 278; 212 NW2d 211 (1973).
The Court has examined the three volumes of transcript of the preliminary examination, and finds that there has been no clear abuse of discretion in the determination that a crime was committed and there was probable cause to believe that defendants committed that crime. The death of Harold Cross was established, and medical testimony was presented which indicated that his death was caused by a subdural hemorrhage, which in turn had resulted from a "blunt force trauma” to the head. The deceased was carried from ward 218 to the Detroit General Hospital in an unconscious state, and was pronounced dead on June 11, 1972.
Kaminsky and Bousquette, fellow inmates whose trial testimony has been reviewed previously, presented testimony sufficient to support the magistrate’s conclusion that there was probable cause to believe that Stinson, Burton and Moore had committed the crime of second-degree murder. The amount of testimony presented against each defendant was somewhat similar to that which was presented at trial, which we have previously found to have been sufficient to support submission of the case to a jury. Additionally, we note that Bousquette testified that after Cross began to spit up the white fluid and the deputy had been called, all three defendants told the officer that Cross had taken a shower and "fell out in the shower”. This evidence came within the admissions exception to the hearsay rule, and constituted "circumstantial evidence of [defendants’] consciousness of guilt * * * ”. McCormick, Evidence (2d Ed), §271, p 655. Defendants’ motion to quash the information was properly denied.
Affirmed.
To the extent that People v Charron, supra, holds, if indeed it does so hold, that the trial court’s failure to give a cautionary instruction previously promised by the court is error, even in the absence of reminder or objection by defense counsel, this panel disagrees. See dissenting opinion of Judge V. J. Brennan, 54 Mich App 37.
The voir dire, which occurred the afternoon of October 24, all of October 25 and the morning of October 26, 1962, was not transcribed by the court reporter, and appellate counsel, in his well-argued brief, has failed to convince us that the jurors were prejudiced against defendants. Aldridge, supra, noted that "the right of disclosure is [not] absolute,” and in fact looked to the record to see if defendants had been denied a fair trial. 47 Mich App 639, 649-651; 209 NW2d 796, 801-802. | [
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D. F. Walsh, J.
Defendant, Harnischfeger Corporation, appeals from a judgment entered pursuant to jury verdict in favor of plaintiff Hawkeye-Security Insurance Company for $48,344 and in favor of plaintiff William E. Malcolm for $25,228.60.
The facts relevant to the issues raised in this appeal are these. Plaintiff Malcolm purchased a T-200 crane manufactured by defendant Harnischfeger. Plaintiff Hawkeye-Security Insurance Company issued a policy of insurance indemnifying Malcolm for any loss he might suffer as the result of damage to the crane. Approximately 2-1/2 weeks after taking delivery of the crane, Malcolm was using it to lift a large block of concrete when one of the crane’s outriggers collapsed and the crane tipped over, causing the damage for which recovery was sought and obtained in this lawsuit. At trial, plaintiffs’ proofs included evidence that the damages resulted from both a design defect and a manufacturing defect in the building of the crane. Plaintiffs’ expert, Joseph Ryan, testified that, in his opinion, the crane collapsed because of the failure of a bolt in the assembly which joined the outrigger to the frame of the crane.
Ryan had two theories regarding the cause of the failure of the bolt to perform its function. The first involved a design defect. According to that theory the bolt was of insufficient length and deficient as to type of steel and threading. The second theory involved a manufacturing defect. In Ryan’s opinion, the bolt was overtightened during assembly, causing damage to its threads. Ryan further stated that if the one-half inch bolt had been a three-quarter inch bolt or a one-inch bolt it would not have been overtorqued and the outrigger would not have collapsed.
Relying on Owens v Allis-Chalmers Corp, 83 Mich App 74, 81; 268 NW2d 291 (1978), defendant argues that the trial court erred in not granting its motion for a partial directed verdict on plaintiffs’ design-defect theory of recovery. In Owens, a panel of this Court ruled that in design-defect products liability cases the plaintiff is required to present evidence:
"That the particular design was not in conformity with industry design standards, design guidelines established by an authoritative voluntary association, or design criteria set by legislative or other governmental regulation * *
This argument is unpersuasive for the reason that the case before us is materially distinguishable on its facts from Owens.
In Owens a forklift overturned, killing its driver. There was no allegation, however, that the forklift itself malfunctioned or that any part of it failed, causing the injuries to the plaintiff. The allegation was that had the forklift been properly designed it would have been equipped with seat belts or some other driver restraint system and that this would have prevented the injury suffered by the driver when the forklift overturned. In this case, the alleged design defect was the use of a one-half inch bolt in the assembly which joined the outrigger to the frame of the crane instead of a three-quarter inch bolt or a one-inch bolt. The evidence indicated that the bolt failed, causing the outrigger to collapse.
It may be that the Owens evidentiary rule is applicable in a case in which a party is injured in the normal use of a machine where there is no malfunction of the machine or failure of one of its parts and where the theory of recovery is that had the machine been designed differently no injury would have occurred. In cases like this, however, where the design defect causes the machine itself to fail, a plaintiff’s burden of proof is satisfied where evidence, either direct or circumstantial, is presented from which the jury could reasonably infer that some defect attributable to the manufacturer caused the accident. Holloway v General Motors Corp (On Rehearing), 403 Mich 614; 271 NW2d 777 (1978). See, Chaney v Whiting Corp, 100 Mich App 108; 298 NW2d 681 (1980). We find such evidence in this case. The trial court did not err in denying defendant’s motion for directed verdict.
The defendant also claims that it was error for the trial judge to give certain jury instructions requested by the plaintiffs in addition to the instructions given verbatim from the Michigan Standard Jury Instructions. The additional instructions emphasized the plaintiffs’ theory that the defendant’s negligence or breach of warranty arose out of the manner in which it engineered, designed, or manufactured the crane.
In Javis v Ypsilanti Board of Education, 393 Mich 689, 702; 227 NW2d 543 (1975), the Supreme Court, in interpreting GCR 1963, 516.6, stated:
"Where there is an omission of, or a deviation from an applicable and accurate SJI, prejudicial error will be presumed; provided that the erroneously omitted SJI was properly requested at trial * * *.”
In the present case, the defendant does not claim that the judge failed to give appropriate instructions from SJI. The defendant’s claim of error attacks the instructions which were given in addition to the SJI. GCR 1963, 516.6(4) provides:
"(4) This subrule does not limit the power of the courts to give additional instructions on applicable law not covered by SJI. Additional instructions when given shall be modeled as nearly as practicable after the style of SJI, making them concise, understandable, conversational, unslanted and non-argumentative.”
A trial judge has discretion regarding whether or not to give specific additional instructions requested by a party. Signs v The Detroit Edison Co, 93 Mich App 626; 287 NW2d 292 (1979). The instructions in question here appear to be a statement of the issues to be determined by the jury as authorized by SJI 25.22. We do not find the instructions to be argumentative or slanted. In our judgment, the rule promulgated by the Supreme Court in Javis, supra, does not require reversal here.
We have also considered defendant’s claim that the trial court committed reversible error in declining to give certain jury instructions requested by the defendant. We have reviewed the charge to the jury in its entirety and find that the theories of the parties and the applicable law were adequately and fairly presented to the jury. When this is accomplished, a trial judge is not required to give each requested charge in the form in which it is requested. Berline v Snyder, 89 Mich App 38, 41; 279 NW2d 322 (1979).
Finally, we have considered defendant’s remaining claims of error and find them to be without merit.
Affirmed. Costs to appellees. | [
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Per Curiam.
In exchange for dismissal of similar charges in two other files, the defendant pled guilty to delivery of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv). He was subsequently sentenced to a minimum prison term of 1-1/2 years.
On this appeal, the defendant does not challenge the validity of his guilty plea and in the trial court he did not challenge the constitutionality of the controlled substances provisions of the Public Health Code or the punishment scheme provided in that act. On this appeal, the defendant challenges the punishment scheme provided in the controlled substances act as it relates to cocaine, asserting that it violates principles of due process and equal protection and constitutes cruel and unusual punishment. None of the defendant’s arguments have merit.
Defendant’s brief does not truly address his due process argument but merely asserts a due process violation and further asserts that any equal protection violation constitutes a due process violation. Essentially, then, defendant’s argument is that the penalty provision of the controlled substances act as it relates to cocaine denies him equal protection of the law.
We note first that the statute does not, as defendant infers, classify cocaine as a narcotic drug. The statute clearly classifies cocaine as a non-narcotic drug, but imposes identical penalties. If the Legislature had classified cocaine as a narcotic drug, the defendant could at least argue that the Legislature operated under a clear mistake of fact. See Justice Swainson’s opinion in People v Sinclair, 387 Mich 91; 194 NW2d 878 (1972). We need not and do not express any opinion as to the validity of such an argument. The mere fact that similar or identical penalties are imposed does not lead to any rational conclusion that the Legisla ture operated under clearly erroneous factual assumptions.
Secondly, there is no record in this case which justifies the argument made by the defendant that the Legislature’s decision, to allow the identical maximum penalties for trafficking in cocaine as it allows for trafficking in narcotic drugs, is arbitrary or capricious and unsupported by scientific fact. The defendant urges this Court to find that the Legislature acted irrationally, using as a vehicle for that determination judicial notice of an ex parte submission to this Court of a number of presumably published articles. We decline the invitation. Such a presentation should have been made in the trial court, not in this Court. People v Stout, 116 Mich App 726; 323 NW2d 532 (1982). Secondly, the issue appears to be one upon which there can be rational debate and it is, therefore, an argument that should be presented to the legislative branch and not to the judicial branch. The judicial branch should not interfere with legislative determinations unless those determinations are so devoid of reason as to amount to arbitrariness or capriciousness. The Legislature is better equipped, because of the process of adopting legislation, than are the courts to examine the various positions of persons interested in a particular subject. A courtroom involves the views of only two lawyers in this process, together with those witnesses whom they happen to bring before the court, People v McCarty, 113 Mich App 464; 317 NW2d 659 (1982).
We have noted that the position taken by the defendant in this appeal appears to be open to a reasonable contrary argument. In People v McCarty, 86 Ill 2d 247; 427 NE2d 147 (1981), the Illinois Supreme Court was met with a similar argument, except that the Illinois statute did classify cocaine as a narcotic drug. In finding the Illinois statute to be constitutional in the face of an argument that the drug cocaine had been irrationally classified, that court noted:
"Moreover, our research has revealed that all courts which have dealt with the identical issue, with the exception of one trial court in the State of Michigan, have upheld the classification of cocaine as a 'narcotic’ for penalty purposes.” 86 Ill 2d 258.
The Illinois court then cited opinions from six state courts and nine federal circuits, all upholding the constitutionality of similar statutes. In addition, with this opinion, ten judges of this Court have authored or joined opinions upholding the controlled substances act as it relates to cocaine. None of the opinions have found the statute to be constitutionally infirm in that regard.
The defendant makes the statement in his brief that the penalty provision imposes "cruel and unusual punishment”. His brief makes no argument on that issue, and, accordingly, it need not be considered by this Court. In any event, we fail to see how the sentence imposed in this case constituted either cruel or unusual punishment.
Finally, the defendant states that the penalty provision of the controlled substances act, as it relates to cocaine, infringes on his right to privacy. The brief does not argue this position. We assume that the argument is that the Legislature lacks power to regulate by criminal sanctions the unlicensed trafficking in an admittedly dangerous drug because to do so interferes with defendant’s "right to privacy”. That argument has not met with majority favor in any published opinion of this state of which we are aware, and since the issue has not been briefed or argued by the defendant, we consider it abandoned, and properly so.
The defendant’s conviction is affirmed.
State v Bonanno, 384 So 2d 355 (La, 1980); People v Davis, 92 Cal App 3d 250; 154 Cal Rptr 817 (1979); State v Stitt, 24 Wash App 260; 600 P2d 671 (1979); State v Vernon, 283 NW2d 516 (Minn, 1979); State v Erickson, 574 P2d 1 (Alas, 1978); People v Billi, 90 Misc 2d 568; 395 NYS2d 353 (Sup Ct, 1977); Canal Zone v Davis, 592 F2d 887 (CA 5, 1979); United States v Stieren, 608 F2d 1135 (CA 8, 1979); United States v Vila, 599 F2d 21 (CA 2, 1979), cert den 444 US 837; 100 S Ct 73; 61 L Ed 2d 48 (1979); United States v Solow, 574 F2d 1318 (CA 5, 1978); United States v Lane, 574 F2d 1019 (CA 10, 1978); United States v Wheaton, 557 F2d 275 (CA 1, 1977); United States v McCormick, 565 F2d 286 (CA 4, 1977); United States v Lustig, 555 F2d 737 (CA 9, 1977), cert den 434 US 1045; 98 S Ct 889; 54 L Ed 2d 795 (1978); United States v Marshall, 532 F2d 1279, 1287-1288 (CA 9, 1976); United States v Harper, 530 F2d 828 (CA 9, 1976), cert den 429 US 820; 97 S Ct 66; 50 L Ed 2d 80 (1976); United States v Foss, 501 F2d 522, 530 (CA 1, 1974); United States v Smaldone, 484 F2d 311, 319-320 (CA 10, 1973), cert den 415 US 915; 94 S Ct 1411; 39 L Ed 2d 469 (1974); United States v Umentum, 401 F Supp 746, 748 (ED Wis, 1975), aff'd 547 F2d 987 (CA 7, 1976), cert den 430 US 983; 97 S Ct 1677; 52 L Ed 2d 376 (1977); United States v Brookins, 383 F Supp 1212 (D NJ, 1974), aff'd 524 F2d 1404 (CA 3, 1975). Contra People v Harman, Livingston Circuit Court, Docket No. 79-2584-FY, decided April 20, 1981).
People v McCarty, 113 Mich App 464; 317 NW2d 659 (1982); People v Stout, 116 Mich App 726; 323 NW2d 532 (1982); People v Kaigler, 116 Mich App 567; 323 NW2d 486 (1982); People v Campbell, 115 Mich App 369; 320 NW2d 381 (1982). | [
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Per Curiam.
Defendant was convicted by a jury of breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305. On April 21, 1981, defendant was sentenced to 7-1/2 to 15 years imprisonment. Defendant appeals. as of right raising two issues for review.
First, defendant contends that the trial court committed error requiring reversal in its instructions to the jury. This objection was not raised below. In the absence of manifest injustice, failure to make timely objection to a jury instruction precludes appellate review. People v Dixon, 84 Mich App 675, 685; 270 NW2d 488 (1978); People v Sherman Hall, 77 Mich App 456; 258 NW2d 517 (1977). Since defendant was found guilty as charged, it cannot be assumed that the instructions were not prejudicial. Therefore, we will review the issue despite the defendant’s failure to object. People v Handley, 101 Mich App 130; 300 NW2d 502 (1980); People v Harmon, 54 Mich App 393; 221 NW2d 176 (1974).
We turn now to the merits of defendant’s appeal. The trial court instructed the jury on two charges, (1) breaking and entering an occupied dwelling with intent to commit larceny and (2) attempted breaking and entering an occupied dwelling with intent to commit larceny. MCL 750.92, 750.110; MSA 28.287, 28.305. The court stated:
"Now, you have a right to find the defendant guilty of breaking and entering an occupied dwelling with intent to commit larceny, or not guilty of that count. If you find that the defendant, not guilty of the county [sic], you may pass and consider the second count: namely, attempt to break and enter occupied dwelling with intent to commit larceny therein. And, you will find him either guilty on that count, or not guilty on that count.
"To repeat, consider whether he is guilty on the count as charged: breaking and entering occupied dwelling with intent to commit larceny. If you find the defendant not guilty of that count, go to the second count. If you find him guilty of that count, then you do not go to the second count. If you found him not guilty, then go to the second count: attempt to commit breaking and entering occupied dwelling with intent to commit larceny, therein.”
This instruction undoubtedly left the jury with the mistaken impression that they had to acquit the defendant on the principal charge before they could consider the attempt charge.
It is well established that an instruction which conditions the jury’s right to consider the lesser included offenses upon a finding that the defendant is not guilty of the principal charge, constitutes error requiring reversal. People v West, 408 Mich 332; 291 NW2d 48 (1980); People v Hurst, 396 Mich 1; 238 NW2d 6 (1976). This Court has previously held that such instructions are coercive and that they unduly structure the jury’s deliberative process. People v Ronald L Johnson, 74 Mich App 250, 258; 253 NW2d 722 (1977) (T. M. Burns, J., dissenting); People v Ray, 43 Mich App 45; 204 NW2d 38 (1972). Applying these principles to the case at bar, we conclude that defendant’s conviction must be reversed.
In light of today’s holding, the second issue raised by defendant, concerning the right of allocution, is moot and will not be reviewed. LaBello v Victory Pattern Shop, Inc, 351 Mich 598; 88 NW2d 288 (1958); but, see People v Berry, 409 Mich 774; 298 NW2d 434 (1980).
Reversed. | [
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D. F. Walsh, P.J.
Defendant, Jesse Betancourt, was convicted of delivery of less than 50 grams of heroin, MCL 333.7401 subds (1), 2(a)(iv); MSA 14.15(7401) subds (1), (2)(a)(iv), and conspiracy to deliver heroin, MCL 750.157a(a); MSA 28.354(l)(a). He was sentenced to concurrent prison terms of 6 to 20 years.
I
The charges arose out of a June 14, 1979, incident. Defendant was not arrested until October 10, 1979. Prior to trial, he moved to dismiss the charges due to the four-month delay between the alleged offenses and his arrest. The court denied the motion and defendant challenges that denial on appeal.
At the evidentiary hearing on his motion to dismiss, defendant testified that he could not remember what he had done on June 14, 1979, but that he thought his friend Jesse Vela had come to his house on June 13 or June 14. At that time, Mr. Vela had agreed to take part in defendant’s daughter’s wedding. Vela told defendant that he was staying at a farm near Breckenridge. But the farm was empty when defendant tried to find Vela 2-1/2 weeks later and defendant had not seen Vela since his June visit. Defendant also testified that he had never driven the Blazer, the vehicle identified as driven by him at the time of the June 14 delivery. He had given the Blazer to his wife and children. He was unable to recall where the vehicle had been or who had used it on June 14.
Michigan State Police Detective Sergeant Andy Palmer also testified at the pretrial hearing. In 1979, Palmer was an undercover agent assigned to the narcotics unit of the intelligence section of the Department of State Police. From January, 1979, until October 10, 1979, he participated in a narcotics investigation in the Flint and Saginaw areas. According to Palmer, the Flint and Saginaw investigations were inextricably linked since "there were suspects that were floating between the two areas”. The first undercover Saginaw purchase was made on June 12. Defendant was not arrested on June 14 because the Saginaw phase of the investigation had just begun, because there was a possibility of future contacts with other suspects, and because of the ongoing Flint investigation.
The court denied defendant’s motion to dismiss, finding that the delay in arrest was due to the ongoing investigation, that the delay was not deliberate, and that defendant had not suffered undue prejudice.
On appeal defendant challenges the findings of the trial court and claims that the four-month delay in arrest deprived him of due process of law.
In ruling on defendant’s motion, the trial court applied the test enunciated in People v Hernandez, 15 Mich App 141, 147; 170 NW2d 851 (1968).
"* * * where some prejudice [due to delay between offense and arrest] is shown, as it is shown in this case, it can be permitted and not be the basis for a finding of lack of due process only where the following elements are present and shown clearly and convincingly to the trier of fact: (1) when the delay is explainable, (2) when it is not deliberate, (3) where no undue prejudice attaches to the defendant.”
The trial court’s findings were not clearly erroneous. A delay in arrest due to the ongoing nature of an undercover narcotics investigation is adequately explained for due process purposes. People v White, 59 Mich App 164; 229 NW2d 357 (1975); People v Anderson, 88 Mich App 513; 276 NW2d 924 (1979); People v Bisard, 114 Mich App 784; 319 NW2d 670 (1982). A delay is "deliberate” only when there is evidence of bad faith conduct de signed to prejudice the defendant; such evidence was not presented in this case. People v White, supra; People v Bisard, supra. Finally, defendant’s uncertain, self-serving testimony was not alone sufficient to indicate undue prejudice. Compare People v Hernandez, supra; People v Bisard, supra. See United States v Lovasco, 431 US 783; 97 S Ct 2044; 52 L Ed 2d 752 (1977); People v Lawson, 67 Ill 2d 449; 10 Ill Dec 478; 367 NE2d 1244 (1977). Since under the strict test of People v Hernandez, supra, defendant was not denied due process, a fortiori there was no error under the more flexible, balancing test enunciated in People v Bisard, supra.
II
Defendant also filed a pretrial motion to dismiss the conspiracy charge, claiming violation of Wharton’s Rule and of the constitutional prohibition against double jeopardy. The court denied the motion.
It was the prosecution theory that defendant had conspired with Jo Ann Doyle to deliver heroin and that with Doyle’s help he had delivered heroin to undercover officer Palmer.
On appeal defendant renews his challenges to the conspiracy charge. Defendant’s double jeopardy argument has been rejected by this Court. People v Gonzales, 86 Mich App 166; 272 NW2d 227 (1978), modiñed on other grounds 406 Mich 943 (1979); People v Flores, 89 Mich App 687; 282 NW2d 183 (1979), rev’d on other grounds 407 Mich 871 (1979).
Nor are we persuaded that defendant’s conspir acy conviction violated Wharton’s Rule, recently described by Justice Levin as:
"A principle of substantive criminal law that an agreement to commit an offense necessarily involving the cooperative action of two or more persons cannot be prosecuted as conspiracy, at least where the only parties to the agreement are those whose cooperative action is required to commit the substantive target offense which is the object of the conspiracy.” People v Davis, 408 Mich 255, 280; 290 NW2d 366 (1980) (opinion of Justice Levin).
See also United States v Previte, 648 F2d 73, 76 (CA 1, 1981). ("It applies when the substantive offense is of a sort that necessarily requires the active, or culpable, participation of the same two people for its successful completion.”)
Determination of the applicability of the rule requires focus on the nature of the target offense or the elements of the crime rather than on the particular factual setting of a case. People v Davis, supra, p 285, fn 6; Iannelli v United States, 420 US 770, 780; 95 S Ct 1284; 43 L Ed 2d 616 (1975). If an "agreement between the essential participants [in the target offense] is already implicit in the definition of the target offense”, the rule forecloses a conspiracy charge. People v Davis, supra, 311 (opinion of Justice Levin). The target offense must require concerted criminal activity. Iannelli v United States, 420 US 785. Also see United States v Previte, supra, 77, fn 1.
The definition of delivery of heroin does not imply an agreement between two culpable actors. As statutorily defined, "delivery” includes "the actual, constructive, or attempted transfer from 1 person to another of a controlled substance, whether or not there is an agency relationship”. MCL 333.7105(1); MSA 14.15(7105)(1). There is no requirement, implicit or otherwise, of an agreement. Nor is there a requirement of a willing or culpable transferee of the controlled substance. The law does not punish bare receipt of a controlled substance; possession with intent to delivér, or knowing or intentional possession, must be proven to support a conviction for possession. MCL 333.7401(1); MSA 14.15(7401X1), MCL 333.7403(1); MSA 14.15(7403X1). A fortiori, the intended transferee of an attempted transfer of a controlled substance is not necessarily criminally liable. The statute upon which defendant’s "target conviction” was based simply "does not necessarily require the cooperative acts of more than one person”, and Wharton’s Rule does not apply. People v Cyr, 113 Mich App 213, 221; 317 NW2d 857 (1982); People v Davis, supra, p 280 (opinion of Justice Levin).
Ill
Relying on MCL 768.27; MSA 28.1050, the so-called "similar acts” statute, the prosecutor sought the court’s permission to introduce evidence of an October 10, 1979, drug transaction involving defendant. The prosecutor argued that the evidence was relevant to defendant’s "plan, motive and scheme, modus operandi, so to speak, in the way this transaction took place”. Defense counsel argued that the prejudicial effect of the evidence would outweigh its probative effect. Without specifying the issue to which the proffered evidence was relevant or commenting on its materiality, the court ruled that the evidence was admissible, finding that its probative value outweighed its prejudicial effect. In support of its ruling the court cited People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976); People v Nieves, 92 Mich App 613; 285 NW2d 389 (1979), and People v Bates, 94 Mich App 568; 288 NW2d 655 (1980), lv den 408 Mich 933 (1980). Before and after introduction of evidence of the October 10 incident, the court cautioned the jury that the evidence was relevant only to defendant’s motive, intent, scheme, plan, system, or identity. In closing instructions, all of these purposes except motive were mentioned by the court. In his rebuttal argument to the jury the prosecutor stated that the evidence was relevant to defendant’s intent, identity, scheme, plan, or method. On appeal defendant again challenges the admission of evidence of the October 10 incident.
At trial, undercover officer Palmer testified that he contacted Jo Ann Doyle on June 14, 1979, and made arrangements to meet her at her trailer in a Buena Vista trailer park. When he arrived, she told him that she would have to call "Jesse”. She handed the phone receiver to Palmer as she dialed a number listed in a directory lying open on her dining room table. Palmer saw "Jesse B.” and two telephone numbers, a long distance number and a local one, written in the open directory. Doyle dialed the local number. A man answered the phone and told Palmer he was Jesse. Palmer handed the receiver to Doyle, who said to Jesse, "We’d like to meet you.” She asked Palmer how much he wanted and he responded, "a half a quarter”. After she clarified Palmer’s meaning, she told Jesse, "a 225 bag”. After Doyle hung up the phone, Palmer asked her why Jesse had sounded "asleep or something”. She told him Jesse had just had his tonsils out. (This fact was verified by other evidence and admitted by the defense.)
Palmer and Doyle drove to the corner of Gene-see and Hoyt in Saginaw and parked in a parking lot. A short while later, a red and white GMC Blazer pulled into the lot. Palmer saw that a Mexican male was driving the Blazer. Following Doyle’s instructions, Palmer looked away from the Blazer as Doyle left Palmer’s car with Palmer’s $225 and walked to the Blazer. When she returned, she handed Palmer a plastic baggie containing a powder later determined to contain heroin. They returned to the trailer park, where Palmer gave Doyle some of the powder as payment for her role in the drug transaction.
Two surveillance officers also testified at trial and identified defendant as the driver of the Blazer involved in the June 14 transaction. It was also determined that defendant was the registered owner of the Blazer.
In accordance with the trial court’s "similar acts” ruling, Palmer further testified that he returned to Doyle’s trailer on October 10, 1979, this time to try to purchase cocaine. Using the same directory she’d used on June 14, Doyle made a long distance phone call and asked to speak with Jesse Betancourt. Again, price and quantity were discussed. It was decided that Palmer would pay $235 for not quite a half quarter. When Doyle hung up the phone, she told Palmer that Jesse would call back when he returned to town from Merrill. A few hours later, the phone rang, Doyle answered and said, "Okay, meet you down there.” They drove to the same area where the June delivery had been made. After a few minutes, Palmer saw defendant drive up in a Lincoln Continental Mark IV. With Palmer’s $240 Doyle went over to defendant’s, car and, upon returning, handed Palmer a plastic baggie containing a powder later determined to contain heroin.
The surveillance officers who had observed defendant on June 14 also, participated in the October 10 incident. Both Doyle and defendant were arrested minutes after the October delivery.
In addition to testimonial evidence of the October 10 incident, there was physical evidence consisting of some of the marked money Palmer had given Doyle on that day, photocopies of $600 in marked money Palmer had had in his possession before giving the $240 to Doyle, and the drugs received by Palmer on October 10.
MRE 404(b) supplanted the similar-acts statute, MCL 768.27; MSA 28.1050, and was in effect at the time of defendant’s trial. The rule provides:
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crime, wrongs, or acts are contemporaneous with, or prior or subsequent to the crime charged.”
The similar-acts rule is an exception to the general rule of inadmissibility of evidence of a defendant’s other crimes. Because of the potential for prejudice inherent in the admission of a defendant’s similar uncharged bad acts, a number of evidentiary safeguards must be met before admission:
"Those safeguards, accurately summarized by the Court of Appeals in People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978), and adequately supported by citation to precedent from this Court, required at the time of trial that before evidence of the defendant’s other misconduct may be admitted: (1) there must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced; (2) there must be some special quality or circumstance of the bad act tending to prove the defendant’s identity or the motive, intent, absence of mistake or accident, scheme, plan or system in doing the act and, in light of the slightly different language of MRE 404(b) we add, opportunity, preparation and knowledge; (3) one or more of these factors must be material to the determination of the defendant’s guilt of the charged offense; and (4) the probative value of the evidence sought to be introduced must not be substantially outweighed by the danger of unfair prejudice.” People v Golochowicz, 413 Mich 298, 308-309; 319 NW2d 518 (1982) (footnote omitted).
Applying the first of these safeguards to the instant case, we find that there was substantial evidence that defendant delivered heroin to Palmer, via Doyle, on October 10, 1979.
We proceed next to consideration of the third safeguard. As in People v Golochowicz, supra, the only, conceivable justification for admission of evi dence regarding the October 10 incident was to prove the identity of Doyle’s June 14 co-perpetrator. Id., 310, 313-318. The identity of the driver of the Blazer on June 14 was genuinely controverted at trial and was, therefore, material to the determination of defendant’s guilt of the charged offense. Id., 315-316.
Turning now to the second safeguard, we are further guided by the Supreme Court’s discussion in People v Golochowicz, 310-311:
"Where, as in this case, the only conceivable justification for admission of such similar-acts evidence is to prove the identity of the perpetrator, the link is forged with sufficient strength to justify admission of evidence of the separate offense only where the circumstances and manner in which the two crimes were committed are '[s]o nearly identical in method as to earmark [the charged offense] as the handiwork of the accused. Here much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The [commonality of circumstances] must be so unusual and distinctive as to be like a signature.’ McCormick, Evidence (2d ed), § 190, p 449.”
In this case, we must determine whether common circumstances of the commission of the June 14 and October 10 deliveries were so uniquely distinguishing as to be like a signature. The relevant similarities between the two deliveries were: (1) heroin was delivered on both occasions; (2) Doyle set up both deliveries and did so by phone; (3) the same Saginaw street corner was the scene of both deliveries; (4) in both instances, Palmer stayed in his car while Doyle walked to defendant’s car to exchange Palmer’s money for the drugs; (5) Palmer received approximately the same quantity of powder and paid approximately the same price in each instance; (6) the powder was contained in a plastic baggie each time.
Admittedly the similarities just recited present us with a close question. We are not persuaded, however, that the circumstances of the two deliveries "necessarily [suggest] the employment of a special, peculiar, or unique method so distinctive as to mark” Doyle’s accomplice in the June 14 and October 10 incidents as the same person. People v Golochowicz, supra, p 321. In our judgment, therefore, admission of the evidence was not permissible under the court rule.
Even assuming the requisite similarity, however, we would nevertheless conclude that admission of the evidence of the October 10 delivery was reversibly erroneous because the prejudicial effect of the evidence substantially outweighed its probative value. Compare People v Benon, 413 Mich 530; 321 NW2d 372 (1982). This conclusion is compelled by the presumptive inadmissibility of evidence of other crimes for the purpose of proving identity, People v Golochowicz, supra, p 326, and by consideration of the following factors.
A substantial portion of the direct and redirect testimony of the prosecution’s main witness was devoted to presentation of the circumstances surrounding the October 10 incident. The same was true of the surveillance officers’ testimony. Five of the prosecution’s 13 trial exhibits concerned only the October 10 transaction. Despite the court’s cautionary instructions, an uninformed observer could have easily concluded that defendant was being tried for both deliveries.
In addition, there was testimony by two prosecution witnesses who observed the June 14 transaction and who unequivocally identified defendant as the driver of the Blazer, defendant’s vehicle, on that day. One of the surveillance officers had seen defendant several times before June 14. Insofar as it was probative of identity, therefore, the similar-acts evidence was cumulative.
We conclude that under the facts of this case the trial court’s cautionary instructions did not eradicate the prejudice which resulted from the introduction of the evidence concerning the October 10 drug delivery. "We conclude that the practical effect of disclosing the [subsequent] controlled substance transaction to the jury was to raise the possibility that the jury might conclude that because the defendant [delivered a controlled substance on October 10], he must have done it on the occasion for which he was charged.” People v Rustin, 406 Mich 527, 533; 280 NW2d 448 (1979).
We have considered the remaining issues raised by defendant on appeal and find no further reversible error. Because admission of evidence of the October 10 drug delivery was erroneous and prejudicial, we reverse defendant’s conviction. Defendant is entitled to a new trial free of the October 10 evidence.
Reversed.
In People v Clifton, 70 Mich App 65; 245 NW2d 175 (1976), this Court relied on Wharton’s Rule in reversing the defendant’s plea-based conviction of conspiracy to deliver heroin. Although the defendant had been charged with conspiracy with another person to deliver heroin to a third person, the facts established that the defendant had "conspired” to effectuate a delivery of heroin from himself to his "co-conspirator”. The Court held that the plea-taking judge had not elicited an adequate factual basis for the guilty plea.
The Clifton Court’s analysis differs significantly from ours in that the Court in that case focused on the particular factual setting of the case instead of on the statutory elements of the target offense. Even under the Clifton analysis, however, there was no violation of Wharton’s Rule in the instant case since defendant was alleged to have conspired with Doyle to deliver heroin to Palmer. See id., p 69, fn 2.
A half quarter, according to Palmer, is one-eighth of an ounce. A 225 bag is a quantity of heroin worth $225.
See, also, People v Major, 407 Mich 394, 398-399; 285 NW2d 660 (1979):
"It is the distinguishing characteristics which constitute the acts as similar within the meaning of MCL 768.27 and MRE 404(b), not the fact that all constitute the same crime or are violative of the same statute. The distinguishing, peculiar or special characteristics which are common to the acts and thus personalize them are said to be the defendant’s 'signature’ which identifies him as the perpetrator * *
Because our concern must be with discerning defendant’s "signature”, we do not attach significance to the peculiarities of Doyle’s conduct except as they relate to defendant’s involvement. Cf. People v Duncan, 402 Mich 1, 11; 260 NW2d 58 (1977).
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Per Curiam.
Plaintiff filed a complaint as a result of an automobile accident with defendant. A jury trial resulted in a verdict of no cause of action in the defendant’s favor. A motion for new trial was denied by the trial court. Plaintiff appeals.
At trial, the accounts given by witnesses to the accident varied. Plaintiff and her passenger contended that they were slowly driving down a residential street in the City of Cheboygan and were negotiating a turn into their own driveway when their automobile was hit in the rear by an automobile being driven by the defendant. Defendant contended that he was following the plaintiffs automobile from a safe distance and that when he was turning into his own driveway, the plaintiffs vehicle slid directly in his path. There was also testimony to indicate that, on the following day, plaintiff described the accident by stating that she had backed up into the path of defendant’s vehicle. All witnesses agreed that the roads were icy and slippery at the time of the accident.
Plaintiff appeals, raising two issues worthy of discussion.
Plaintiff first contends that the trial court erred in instructing the jury on the sudden emergency doctrine. This Court has considered on numerous occasions whether the facts present in a particular case justify an instruction on the sudden emergency doctrine. Hughes v Polk, 40 Mich App 634; 199 NW2d 224 (1972), lv den 388 Mich 770 (1972), Spillers v Simons, 42 Mich App 101; 201 NW2d 374 (1972), lv den 388 Mich 782 (1972), LaBumbard v Plouff, 56 Mich App 495; 224 NW2d 118 (1974), Manning v Cheboygan Area Schools, 76 Mich App 700; 257 NW2d 222 (1977), Bugar v Staiger, 66 Mich App 32; 238 NW2d 404 (1975), Dennis v Jakeway, 53 Mich App 68; 218 NW2d 389 (1974), lv den 392 Mich 801 (1974). See also Moore v Spangler, 401 Mich 360; 258 NW2d 34 (1977).
In Vander Laan v Miedema, 385 Mich 226; 188 NW2d 564 (1971), the Supreme Court held that the sudden emergency doctrine is an appropriate instruction where a party is confronted with an "unusual” or an "unsuspected” situation. From the Vander Laan decision, it would appear that the factual pattern is "unusual” if the facts present in the case vary from the everyday traffic routine confronting a motorist. Thus, a blizzard or other extreme weather condition may cause such an unusual driving environment that the normal expectations of due and ordinary care are modified by the attenuating factual conditions. "Unsuspected” facts are those which may appear in the everyday movement of traffic, but which take place so suddenly that the normal expectations of due and ordinary care are again modified by the attenuating factual conditions.
In assessing the current issue, it must be remembered that the facts are viewed in the light most favorable to the defendant. Manning, supra. With this in mind, this Court concludes that an "unsuspected” factual pattern did exist. Plaintiff argues that the situation was not "unexpected” since the defendant admitted that he had a clear view of the road ahead and had been following the plaintiff’s vehicle for some time. See Hughes, supra, Spillers, supra. However, there was testimony to indicate that, when the plaintiff attempted to negotiate her own driveway (on the left hand side of the street), she slid to the right toward the defendant’s driveway. Plaintiff’s potential peril was not in defendant’s clear view for any significant length of time and consequently was totally unexpected. Additionally, the jury did hear testimony which indicated that the plaintiff had admitted on the day following the accident that she had backed out of the defendant’s driveway and into the path of the defendant’s vehicle. Under these circumstances, the sudden emergency doctrine was properly given by the trial court.
Plaintiff also contends that the trial court erred in instructing the jury on the assured clear distance ahead statute, MCL 257.627; MSA 9.2327, and the turn signal statute, MCL 257.648; MSA 9.2348. We disagree.
We believe the assured clear distance ahead statute operative on the date of the disputed accident was applicable to a driver of any motor vehicle who was operating his motor vehicle at a rate of speed unreasonable for the circumstances and road conditions. Consequently, this statute was relevant to the plaintiffs conduct. There was evidence submitted to the jury from which they could find that the plaintiff was operating her vehicle at an unreasonable speed and, as a consequence, slid into the path of the defendant’s vehicle. As such, this penal statute could be used to establish a prima facie case of negligence against the plaintiff. Zeni v Anderson, 397 Mich 117; 243 NW2d 270 (1976).
Similarly, the trial court did not err in instructing the jury that, if they found that the plaintiff violated the turn signal statute, plaintiff could be considered prima facie negligent. Defendant testified that, before the collision, he observed neither brake lights nor a turn signal on the plaintiffs vehicle. The turn signal statute requires that a motorist give a signal before undertaking certain maneuvers. The purpose for giving the signal is obviously to warn other motorists of an intent to change directions with the vehicle being driven. In the case at bar, there was evidence which indicated that plaintiff failed to give the proper signal. It was possible for the jury to find that this failure was a proximate cause of the accident. No error was committed.
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D. F. Walsh, J.
Plaintiffs brought a malpractice action against defendants. Defendant Kasai appeals the jury verdict rendered in favor of plaintiffs.
On March 22, 1976, plaintiff Daniel L. Berwald entered Grant Community Hospital for the treatment of a boil on his face. Mr. Berwald informed the nurse who interviewed him and his treating physician, Dr. Kasai, that he was allergic to penicillin. He testified that he also told Dr. Kasai that he should receive only Terramycin as an antibiotic. Dr. Kasai, who denied being so informed, directed that Mr. Berwald be injected with Garamycin.
Following the injection, Mr. Berwald left the hospital and experienced severe chest pains, a choking feeling, and breathing difficulties. Mr. Berwald returned to the hospital where Dr. Kasai diagnosed a drug reaction or a myocardial infarct, a heart attack. Mr. Berwald received further treatment, and, although he was to be releaed the following day, his wife arranged for a discharge and transfer to a cardiologist. On August 18, 1976, Mr. Berwald underwent a successful aorta-coronary bypass graft at Blodgett Hospital in Grand Rapids. He resumed employment in October, 1976.
In a complaint filed on February 21, 1978, plaintiffs alleged that the negligent act of the ‘Garamycin injection proximately caused the heart attack. The jury returned a verdict of $125,000 in favor of Daniel Berwald and $4,500 in favor of Joan Berwald, his wife.
Defendant Kasai’s main argument on appeal is that the trial court erred in admitting evidence of acts of negligence which were not pleaded in the complaint. The sole act of negligence contained in the complaint reads as follows:
"That notwithstanding the above duties owed to Plaintiff, Defendants negligently, unskillfully, and carelessly gave to Plaintiff, an injection of Garamycin when Defendants knew or should have reasonably known that plaintiff would have an allergic reaction thereto.”
However, the trial court, over defendant Kasai’s objection, permitted plaintiffs to introduce evidence on the claims that: (1) the boil should have been cultured before treatment was begun, (2) a regular course of antibiotic treatment was preferable to the use of a single dose of Terramycin, (3) there was no medical consultation, (4) the patient should have been confined to bed rest, (5) Dr. Kasai did not use an anticoagulant, and (6) insufficient pain relief was prescribed for the patient.
There are two possible theories under which evidence of the above-mentioned acts of negligence could be found admissible. Either it was used to establish that defendant Kasai was negligent in the injection of the Garamycin, or it served as proof of additional actionable claims of negligence. We conclude that the evidence was inadmissible under the former theory and that, if admitted under the latter theory, the trial court erred in failing to direct a verdict for defendant Kasai on several of the additional claims.
It is well-established that evidence introduced to show that a defendant may have breached certain duties of care unrelated to the duty at issue is generally inadmissible at trial. McCormick, Evidence (2d ed), § 189, p 446, 1 Wigmore, Evidence (3d ed), § 199, pp 677-681. This rule of exclusion is followed because such unrelated acts of negligence merely establish a tendency to engage in negligent conduct in general and may prejudically serve to establish that a defendant was negligent in the specific act at issue. The probative value of such evidence is generally thought to be far outweighed by its prejudicial effect.
In the case at hand, plaintiffs introduced testimony relating to the conduct of Dr. Kasai subsequent to Mr. Berwald’s heart attack. Whether Dr. Kasai was negligent in failing to consult with other physicians or in failing to administer an anticoagulant is totally unrelated to the allegedly negligent act at issue — the injection of Garamycin which proximately caused the heart attack. Testimony concerning Dr. Kasai’s breach of other duties tended to show that he was a negligent doctor and, therefore, probably negligent regarding the Garamycin injection. Such evidence was highly prejudicial. Testimony concerning Dr. Kasai’s breach of other duties tended to establish that he was a negligent doctor generally. Such evidence was highly prejudicial and was not admissible for the purpose of proving the specific act of negligence pleaded in the complaint.
We next address whether the unpleaded acts of negligence were properly admitted as new, independent causes of action. We note initially that in a malpractice case the pleadings are required to be specific, indicating the exact theories of negligence to be shown. Simonelli v Cassidy, 336 Mich 635, 644; 59 NW2d 28 (1953), Serafin v Peoples Community Hospital Authority, 67 Mich App 560; 242 NW2d 438 (1976). However, GCR 1963, 118.3, authorizes liberal amendments to pleadings so that they conform to the evidence presented at trial. This court rule provides:
"When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. In such case an amendment of the pleadings to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, amendment to conform to such proof shall not be allowed unless the party desiring amendment satisfies the court that the amendment and the admission of such evidence would not prejudice the objecting party in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.”
Defendants were made aware of the unpleaded acts of negligence through the deposition testimony of Dr. Laird, plaintiffs’ expert, at least two weeks prior to trial. Defendant Kasai’s claim of unfair surprise at trial is unsupported by the record. Defendant Kasai could have requested a continuance at trial as permitted under the court rule but chose not to do so. We find that the unpleaded acts of negligence were admissible under GCR 1963, 118.3.
However, even if properly admitted at trial as independent claims of negligence, the trial court erred in failing to grant defendants’ motion for a directed verdict on the majority of these additional claims. Plaintiffs failed to present any testimony establishing that these acts of negligence proximately caused any damages to plaintiff Daniel Berwald. Dr. Kasai’s alleged failure in (1) culturing the boil prior to treatment, (2) prescribing a regular course of antibiotic treatment rather than a single injection, and (3) ordering an anticoagulant for plaintiff Daniel Berwald did not proximately cause his heart attack. Nor did plaintiff Daniel Berwald offer any testimony concerning any other damage he may have suffered as a result of these additional negligent acts. Therefore, the supplemental claims of negligence which were highly prejudicial to defendant Kasai were improperly submitted to the jury. The court’s failure to direct a verdict for defendants amounted to reversible error, and defendant Kasai is entitled to a new trial.
Defendant Kasai also asserts that the trial court erred in permitting plaintiffs’ expert to read from a medical text at trial. We agree. See MRE 707, Bivens v Detroit Osteopathic Hospital, 403 Mich 820 (1978), Stachowiak v Subczynski, 93 Mich App 245; 287 NW2d 194 (1979). However, the excerpts from the medical textbook pertained to the importance of an accurate and complete patient history prior to any antibiotic prescription. This fact was not at issue at trial, and the court, recognizing its error in admitting the statements, instructed the jury to disregard it. Under such circumstances, any error was harmless.
Further, we find no abuse of discretion in the trial court’s ruling that Dr. Laird was properly qualified as an expert witness. A specialist may testify with respect to the standard of care expected of a general practitioner as long as the witness has the requisite knowledge of that standard of care. Callahan v William Beaumont Hospital, 400 Mich 177, 180; 254 NW2d 31 (1977), Siirila v Barrios, 398 Mich 576, 593; 248 NW2d 171 (1976). Since Dr. Laird specifically stated that he was familiar with the standard of care in communities similar to the location where the malpractice occurred, we find no abuse in the trial court’s discretion regarding the qualification of this expert witness.
We also reject defendant Kasai’s claim that there was insufficient evidence presented on the issue of proximate cause to withstand defendant Kasai’s motion for a judgment notwithstanding the verdict. Two witnesses testified that there was a reasonable medical probability that the injection of Garamycin may have caused the heart attack. The trial court’s denial of defendant Kasai’s motion for a judgment notwithstanding the verdict was proper. See Sabraw v Michigan Millers Mutual Ins Co, 87 Mich App 568, 571; 274 NW2d 838 (1978).
Finally, we note that defendant Kasai requested a jury instruction to the effect that a physician is not a warrantor of cure or diagnosis. This requested instruction is a correct statement of Michigan law. Roberts v Young, 369 Mich 133, 138; 119 NW2d 627 (1963), quoting Zoterell v Repp, 187 Mich 319, 330; 153 NW 692 (1915), Skeffington v Bradley, 366 Mich 552, 556; 115 NW2d 303 (1962), Viland v Winslow, 34 Mich App 486, 488; 191 NW2d 735 (1971). While we need not decide whether the trial court’s failure to so instruct constituted reversible error we caution the trial court, upon retrial, to reconsider its ruling. A medical malpractice suit is a unique type of negligence action. We feel that more than simply the basic standard jury instructions on negligence may be necessary, especially where the requested jury instruction incorporated an explicit ruling by the Supreme Court. See, Cleveland v Rizzo, 99 Mich App 682; 298 NW2d 618 (1980).
Reversed and remanded for a new trial.
Plaintiffs’ expert admitted at trial that Mr. Berwald had been confined to bed.
The only arguably admissible additional claim of negligence was defendant Kasai’s failure to prescribe sufficient pain relief which may have contributed to plaintiff Daniel Berwald’s pain and suffering. | [
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Per Curiam.
Defendant was convicted by a jury in Macomb County Circuit Court on June 16, 1978, of carrying a weapon in a motor vehicle occupied and operated by him, in violation of MCL 750.227; MSA 28.424. On October 27, 1978, he was sentenced to serve a term of two to five years in prison. Defendant appeals as of right, pursuant to GCR 1963, 806.1.
During the early morning hours of November 20, 1977, defendant was driving northbound on Gratiot Avenue near Twelve Mile Road in Macomb County. A friend of the defendant, David Norton, accompanied him. Norton was sitting on the passenger side of the front seat of defendant’s automobile.
While stopped for a traffic light, defendant and Norton encountered four young men who were riding in two vehicles. These four young men were all friends, and they were also driving northbound on Gratiot. In response to a remark made by Norton, one of the young men held up his middle finger at Norton. After the traffic light changed to green, the three vehicles all continued northbound on Gratiot. As one of these vehicles approached defendant’s car, Norton placed a 20-gauge sawed-off shotgun out of the open window on the passenger side and aimed it at the other vehicle. A car chase ensued down some side streets. A police cruiser which happened to be in the area pulled up to the three vehicles after they had stopped. Defendant and Norton were arrested at the scene and the sawed-off shotgun was taken from defendant’s vehicle. Defendant was charged under the concealed weapons statute, MCL 750.227; MSA 28.424; Norton was charged with felonious assault, MCL 750.82; MSA 28.277.
Following his conviction, defendant moved for a new trial arguing, inter alia, that his conviction should be reversed due to the prosecutor’s failure to indorse and produce Norton as a res gestae witness at his trial. The trial judge denied the motion on the ground that Norton was an accomplice of the defendant.
While it is true that the prosecution is under a general duty to indorse and produce all res gestae witnesses, MCL 767.40; MSA 28.980, People v Carter, 87 Mich App 778; 276 NW2d 493 (1979), this rule is not without exceptions. A prosecutor is obligated to neither indorse nor produce persons who are accomplices of the defendant. People v Raider, 256 Mich 131; 239 NW 387 (1931), People v Benton, 402 Mich 47, 58; 260 NW2d 77 (1977).
In People v Raider, the Supreme Court stated the rationale for the exceptions to the res gestae rule:
"Obviously the exceptions were founded upon the recognized inclination or inducement of those close to the accused, by community of interest in the crime or relationship, to perjure themselves, if they deem it necessary, in his behalf, and the incongruity of requiring the prosecution to make such witnesses its own.” 256 Mich 131, 135-136.
The key question, then, is whether Norton was defendant’s accomplice. A person may be treated as an accomplice for purposes of the res gestae rule even though never formally charged or con victed, provided that he or she could have been charged with the same offense as the defendant. People v Threlkeld, 47 Mich App 691, 696; 209 NW2d 852 (1973). Each case must be judged according to its own facts. Id. Since Norton clearly could have been charged under the concealed weapons statute, MCL 750.227; MSA 28.424, he would be deemed an accomplice under Threlkeld whether or not he had ever been formally charged at all. This case, however, does not fall neatly within the Threlkeld rule, since Norton was, in fact, formally charged with felonious assault, MCL 750.82; MSA 28.277, an offense different from that charged against defendant. The question before us is whether the fact that Norton was charged under a different criminal statute than defendant should act to place him outside the scope of the accomplice exception.
In People v Moore, 29 Mich App 597; 185 NW2d 834 (1971), this Court was faced with the question of whether an accomplice should be made a res gestae witness once the charges are dropped. Concluding that such a witness need not be called, the Court stated:
"The reasons for the exception to the general rule apply with equal force whether or not the witness has been charged, and whether or not the action, if any, against him is still pending.” Moore, supra, 601.
This observation is equally true in the instant matter. Even though an accomplice in a criminal episode is charged with an offense different from that charged against the defendant, the "community of interest” and the resulting inducement for perjury noted by the Supreme Court in Raider, supra, still remain. Furthermore, by limiting the applicability of the accomplice exception to sitúa tions where the "accomplice” is either charged with the same offense as the defendant or not charged at all, as in Threlkeld, we would be needlessly and adversely limiting the prosecutor’s broad discretion in charging criminal defendants.
For these reasons, we hold that even though Norton was charged with a different criminal offense, he was still defendant’s accomplice for purposes of the res gestae rule since he could have been charged with the same offense as the defendant. Therefore, the prosecution was under no duty to either indorse or produce Norton at defendant’s trial.
With respect to defendant’s claim that his conviction was based on an improper pyramiding of inferences, our careful review of the record convinces us that no such error occurred at his trial.
Affirmed. | [
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Per Curiam.
On October 31, 1979, a judgment by default was entered against defendants-appellants, in Oakland County Circuit Court, in the amount of $65,217.18, plus interest and costs. From an order of December 5, 1979, denying motions to set aside the default judgment, and from an order of February 13, 1980, denying a motion for reconsideration, defendants appeal as of right, pursuant to GCR 1963, 806.1.
As their first assignment of error, defendants argue that the trial court improperly refused to exercise its discretion in ruling on defendants’ motions to set aside the default judgment. The procedure for setting aside a default is governed by GCR 1963, 520.4. The rule in Michigan was reiterated in Badalow v Evenson, 62 Mich App 750; 233 NW2d 708 (1975), where this Court stated that the setting aside of a default judgment rests in the sound discretion of the trial judge and shall be granted only if the moving party shows "good cause” for vacating the default judgment and files an affidavit of facts showing a meritorious defense. The exercise of the trial court’s discretion will be successfully challenged only if there is a clear showing of abuse. O’Neill v O’Neill, 65 Mich App 332; 237 NW2d 315 (1975), Bennett v Attorney General, 65 Mich App 203; 237 NW2d 250 (1975).
In Diversified Equipment Leasing Corp v Booth, 67 Mich App 206; 240 NW2d 482 (1976), this Court ruled that a trial court has discretion to set aside a default judgment. The trial court in Diversiñed Equipment was reversed because it specifically stated that it had no discretion to set aside the default. In the case sub judice the trial judge made no such statement. In denying defendants’ motions to set aside the default judgment, the trial court specifically found that:
"[T]he court is of the opinion that defendants have not shown good cause or a meritorious defense, as required by GCR 1963, 520.4, nor any grounds set forth in GCR 1963, 528.3.”
From the above analysis, it is apparent that the trial court did exercise its discretion in denying defendants’ motions to set aside the default judgment. Thus, defendants’ first assignment of error is without merit.
As their second assignment of error, defendants argue that the trial court should have granted defendants’ motions to set aside the default judgment because defendants showed both good cause and a meritorious defense. This Court addressed the requirements of GCR 1963, 520.4, in Asmus v Barrett, 30 Mich App 570, 574; 186 NW2d 819 (1971), stating:
"a default 'may’ be set aside only when three conditions are all fulfilled. First, good cause for failure to make timely response must be shown. Second, a meritorious defense must be established. Third, the showing of a meritorious defense must be based on an 'affidavit of facts’. GCR 1963, 520.4. Whether these three conditions are fulfilled is a matter within the discretion of the trial judge. Walters v Arenac Circuit Judge (1966), 377 Mich 37, 47; Freeman v Remley (1970), 23 Mich App 441.”
More recently, this Court held that the refusal to set aside a default judgment is not an abuse of the trial court’s discretion, when no showing of a meritorious defense was made and the defendant did not show good cause for failing to appear at the trial. Butler v Cann, 62 Mich App 663; 233 NW2d 827 (1975).
In the instant case, defendants sought to show good cause by alleging neglect and abandonment on the part of a prior attorney. Defendants were served with plaintiffs summons and complaint. The attorney now charged with neglect and abandonment by defendants never filed an appearance in the instant suit. In the case cited by defendants, White v Sadler, 350 Mich 511; 87 NW2d 192 (1957), the Supreme Court held that an attorney’s neglect is generally attributable to the client. From the facts before us, it is unclear whether the neglect should be attributed to the defendants or to their prior attorney. Nonetheless, a review of the record supports the trial court’s conclusion that the defendants failed to show good cause.
In the motion to set aside the default judgment, the defendants alleged that "Defendant, Triangle Excavating Company, has a meritorious defense to the complaint * * * in that it does not owe the money claimed against it by Plaintiff’. Attached to the motion was an affidavit of Triangle’s vice-president, who stated that he had read the motion and he believed it to be true.
GCR 1963, 520.4, requires that a meritorious defense be established "by an affidavit of facts”. In Hartman v Roberts-Walby Enterprises, Inc, 17 Mich App 724; 170 NW2d 292 (1969), lv den 383 Mich 774 (1970), this Court agreed with the trial court’s ruling that an affidavit was insufficient because it stated a mere conclusion and did not give a factual basis for that conclusion. The affidavit in the instant case, as in Hartman, contained a general conclusory denial of liability. Therefore, we cannot disagree with the trial court that the defendants have failed to show a meritorious defense based on an affidavit of facts.
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Per Curiam.
Defendant was charged with assaulting a prison employee, MCL 750.197c; MSA 28.394(3). At the preliminary examination, it was established that the defendant, a prisoner at Marquette Branch State Prison, threw a container of liquid, probably urine, in the face of a guard. Defendant was bound over for trial by the examining magistrate.
Defendant filed a motion to dismiss the charge prior to trial. The trial court granted the motion and the prosecutor appeals.
The prosecutor asserts the trial court erred in holding that the statute requires proof that the defendant was attempting an escape at the time the assault occurred. Interpretation of the statute is necessary in order to resolve the issue. It states:
"A person lawfully imprisoned in a jail, other place of confinement established by law for any term, or lawfully imprisoned for any purpose at any other place, including but not limited to hospitals and other health care facilities or awaiting examination, trial, arraignment, sentence, or after sentence awaiting or during transfer to or from a prison, for a crime or offense, or charged with a crime or offense who, without being discharged from the place of confinement, or other lawful imprisonment by due process of law, through the use of violence, threats of violence or dangerous weapons, assaults an employee of the place of confinement or other custodian knowing the person to be an employee or custodian or breaks the place of confinement and escapes, or breaks the place of confinement although an escape is not actually made, is guilty of a felony.” MCL 750.197c; MSA 28.394(3). (Emphasis added.)
The object of statutory construction is to discover and give effect to the legislative intent. Smith v City Comm of Grand Rapids, 281 Mich 235, 240; 274 NW 776 (1937). The legislative history of a statute is instructive in making such a determination. People v Hall, 391 Mich 175, 191; 215 NW2d 166 (1974), Kizer v Livingston County Board of Comm’rs, 38 Mich App 239, 247; 195 NW2d 884 (1972).
The emphasized portion of the statute was added by 1976 PA 188, formerly House Bill 5117. The two House staff analyses of the bill, which are nearly identical, state that the Legislature felt there were two deficiencies in the previous statute (1931 PA 59, § 1). First, the place of imprisonment appeared to be limited to jails and prisons. The Legislature determined that escapes from other places of legal confinement, such as mental hospitals, should also be included in the felony statute. The trial court noted the following excerpt from the analyses in its opinion:
"The bill would provide that a prisoner who knowingly assaults an employee of a place of confinement or other custodian while escaping or attempting to escape from lawful imprisonment, including lawful imprisonment at a hospital, other health care facility, or any other place, would be guilty of a felony. The bill would take effect on January 1,1977.”
We believe that the above language was directed toward the place of confinement problem and was not addressing the other stated purpose of the amendment, i.e., elevation of assaults on prison guards to felonies. Support for this interpretation of the analyses is found by reading the documents as a whole. The following statement, apparently not considered by the trial court, is also found in the analyses:
"In addition, many persons believe that corrections staff are not now adequately protected from prisoner assault by the law. Such an assault is at present a misdemeanor. Many persons believe that such an assault upon a corrections employee or custodian should also be punishable as a felony.”
We take due note that this statement does not refer to escapes.
Further support for the prosecutor’s argument that a prisoner can be charged under the statute for assaulting a prison guard without attempting to escape is found in the plain language of the law. Reading the statute in the disjunctive, it is clear that assaults or prison breaks or attempted prison breaks are prohibited. Had the Legislature wanted the assault charge to be conditioned on an attempted or successful prison break, it would have used the word "and” instead of "or”.
Finally, we believe the fact that the Legislature amended the statute to add the assault language is an indication that it intended to elevate the crime of assault of a prison guard to felony status. Any other reading of the statute would render that portion of the amendment nugatory, contrary to the rule that every part of the act should be given full effect, if possible. Webster v Rotary Electric Steel Co, 321 Mich 526, 531; 33 NW2d 69 (1948), General Motors Corp v Erves, 395 Mich 604, 617; 236 NW2d 432 (1975).
Therefore, we conclude that a prisoner who assaults a prison employee may be charged with a felony under 1976 PA 188, even though he was not attempting to escape at the time of the assault. See People v Wingo, 95 Mich App 101, 103; 290 NW2d 93 (1980).
Defendant argues that even if an assault without an escape attempt is prohibited under this statute, the requisite use of violence or dangerous weapons was not established, requiring affirmance of the dismissal.
We agree with defendant’s contention that the phrase "through the use of violence, threats of violence or dangerous weapons” applies to assaults as well as prison escapes. Where we part company is in the definition of the word "violence”, and its application to the facts of this case.
Webster defines "violent” as follows:
"(a) acting with or characterized by great physical force, so as to injure, damage or destroy (b) acting or characterized by force unlawfully or callously used * * *.” Webster’s New World Dictionary (2d ed) (1976), p 1586.
CJI 17:2:03 adds further light to the meaning of violence in assaults:
"As used in these instructions, the words "force and violence” mean any wrongful application of physical force against another person so as to harm or embarrass him.”
It is our opinion that the throwing of liquid, alleged to be urine, into the face of another person constitutes the use of "violence”, thereby satisfying the requirements of the statute.
Defendant argues that the Legislature could not have intended that simple assault and battery would be made a felony by 1976 PA 188. We disagree.
The stated purpose of the amendment as expressed in the analyses is to elevate misdemeanant assaults to the status of felonies in order to deter assaults of prison guards. There are only two misdemeanant assault statutes in Michigan, MCL 750.81; MSA 28.276, and MCL 750.81(a); MSA 28.276(1), which state:
"Sec. 81. Assault and assault and battery — Any person who shall be convicted of an assault or an assault and battery where no other punishment is prescribed shall be guilty of a misdemeanor.”
"Sec. 81a. Any person who shall assault another without any weapon and inflict serious or aggravated injury upon the person of another without intending to commit the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of a misdemeanor, punishable by imprisonment in the county jail or the state prison for a period of not more than 1 year, or fine of $500.00, or both.”
All of the other assault statutes are enumerated felonies.
Keeping in mind the legislative intent and the plain language of the statute, we see no reason to limit the statute to aggravated assaults. Had the Legislature wished to restrict the statute in such a manner, it could have easily done so.
Reversed and remanded for trial.
The trial court held that the statute was not violated in this case while declining to state the circumstances under which the statute would be applicable. However, it appears from reading the entire opinion that the court based its decision on its belief that a prison escape must be attempted at the time of the assault in order to charge the defendant under this statute. | [
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R. B. Burns, J.
Defendant pled guilty to armed robbery, MCL 750.529; MSA 28.797. He was sentenced to prison for a term of from 10 to 25 years.
Defendant’s plea was a result of a plea bargain in which it was agreed that if defendant pled guilty in the instant case the prosecution would not file a supplemental information charging defendant as an habitual offender and would drop other pending charges if defendant admitted his guilt of those other charges. The prosecutor stated that the purpose of having defendant make these other admissions of guilt was to provide additional information for the trial judge to consider when sentencing the defendant. On appeal, defendant claims that the admissions he made were coerced and that the plea process denied him due process of law and violated his right against self-incrimination.
We find that there was nothing inherently coercive in the plea agreement. The defendant was under no obligation to speak. The defendant had an opportunity to assess the value of the bargain, and he chose to enter into that agreement.
In the Federal system, the principles governing criminal sentencing are set out by statute:
"No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 USC 3577.
In Roberts v United States, 445 US 552, 556; 100 S Ct 1358; 63 L Ed 2d 622 (1980), the Supreme Court upheld these principles and reiterated its statement that:
"' "[A] judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.” ’ ”
The admissions by the defendant were properly obtained and properly considered by the sentencing judge.
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Per Curiam.
Defendant Gerald Carpenter and codefendant Lloyd George Zimmerman were convicted by a jury of four counts of armed robbery, MCL 750.529; MSA 28.797, and one count of felony-firearm, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to a prison term of from two to ten years on each armed robbery conviction, to be served concurrently, and a mandatory two year prison term on the felony-firearm conviction.
Defendant’s conviction arose out of a robbery of four individuals in the early morning hours at an apartment where one of the victims resided. Zimmerman testified that he participated in the robbery but denied possessing a weapon. He also stated that defendant was not with him during the commission of the crime. This supported defendant’s alibi theory that he was not at the scene of the crime but later went with Zimmerman to their apartment, where they were arrested. Zimmerman was renting the apartment where the arrest took place and defendant had been staying there for three or four weeks.
Defendant appeals as of right and presents numerous questions.
I
Did the trial court err by refusing to suppress evidence obtained by the police following an entry of defendant’s residence without a warrant for the purpose of arresting him?
Shortly after 1 a.m. on November 20, 1979, Wayne County deputies noted a black Cadillac parked incorrectly in an apartment complex parking lot. Ten minutes later, the deputies answered a radio call which brought them to the victim’s apartment to assist in the armed robbery investigation. At that time, the connection was made between the illegally parked black Cadillac and the robbers’ automobile. The deputies, along with two plain-clothes officers and two uniformed officers, then went to the apartment of the registered owner of the black Cadillac. The officers, with service revolvers drawn, knocked on the apartment door and announced their presence, stating that they wanted to talk to the owner of the Cadillac. A Detroit police officer testified that defendant opened the door, looked at the police, closed the door, removed the security chain lock, and then opened the door for the police to enter. Zimmerman testified that he opened the door and that defendant was standing back behind him, away from the door.
Defendant and Zimmerman were arrested and two handguns which were in Zimmerman’s bed were seized. A woman, who also occupied the apartment, was also arrested. A television set was seized along with a wrist watch and various denominations of paper money which were lying on the bed. The following day, a search warrant was issued and the police seized five pieces of jewelry, two jackets, and a wallet.
Defense counsel, at trial, sought to suppress all evidence which stemmed from the allegedly unconstitutional entry and seizure. A search and seizure without a warrant is unreasonable per se unless there exists both probable cause and circumstances establishing one of the delineated exceptions to the warrant requirement. People v Mullaney, 104 Mich App 787, 792; 306 NW2d 347 (1981).
Probable cause for an arrest has been defined as any set of facts existing at the moment of arrest which would induce a fair-minded person of average intelligence to believe that the suspect has committed a felony. People v Kyser, 106 Mich App 216, 218; 307 NW2d 447 (1981); People v Goode, 106 Mich App 129, 136; 308 NW2d 448 (1981). Defendant does not challenge the probable cause element but contends that no exception to the warrant requirement exists in this case.
The prosecutor argues that the entry into the apartment was premised on consent and, therefore, the resulting arrests and seizures were proper. There is a conflict in the testimony over whether the defendant or Zimmerman opened the door. There is no controversy over the fact that four officers, with revolvers drawn, requested admittance and that both defendant and Zimmerman were near the door, within hearing range of the request. The door was cracked open, unchained, and opened completely, apparently without either defendant or Zimmerman saying anything. This Court, from the totality of these circumstances, must determine if the "consent” was truly voluntary. Schneckloth v Bustamonte, 412 US 218; 93 S Ct 2041; 36 L Ed 2d 854 (1973).
The act of opening the door by either codefendant, both of whom are competent adults, was a tacit consent to enter the apartment. The defendants unchained the door knowing the police were present. In fact, the defendants were aware that the police were outside the building, prior to the knock on the door, because the officers were throwing stones at windows trying to awaken someone to let them into the building since the outside doors were locked and the building lacked the customary security buzzer system. As a result of the noise they were making, defendant looked out the apartment window and told Zimmerman the police had arrived.
This case, therefore, did not involve an unconstitutional entry. The consent in this case also takes it outside the scope of Payton v New York, 445 US 573; 100 S Ct 1371; 63 L Ed 2d 639 (1980). In Payton, the Court held that the Fourth Amendment "prohibits the police from making a warrant-less and nonconsensual entry into a suspect’s home in order to make a routine felony arrest”. 445 US 576. The case at bar is also factually distinguishable from Riddick v New York, consolidated with Payton, supra. In Riddick, the suspect’s three-year-old son opened the apartment door after police knocked, apparently without announcing their identity. Mr. Riddick, who could be seen in bed from the doorway, was arrested before he had an opportunity either to object or to consent to the police entering the apartment. Here, the suspects, with advance knowledge of the presence of the police, opened the door.
Defendant’s issue goes to the officers’ entry and not directly to the seizures. The trial court did not err in denying the motion to suppress the evidence. The police lawfully entered the apartment and inadvertently observed the obviously incriminatory evidence which was in plain view. People v Myshock, 116 Mich App 72; 321 NW2d 849 (1982).
II
Did the trial court err by denying defendant’s motion to suppress evidence of his 1976 federal conviction for illegal possession of a ñrearm by a prior felony offender?
The decision to admit evidence of prior convictions rests in the sound discretion of the trial court. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). Review of a trial court’s determination to admit evidence of prior convictions for impeachment purposes involves two considerations: (1) whether the trial judge recognized his discretion to decline to admit evidence of the convictions, and (2) whether the trial judge’s decision was so palpably and grossly violative of fact and logic as to amount to an abuse of discretion. People v Worden, 91 Mich App 666, 674-676; 284 NW2d 159 (1979). The factors which the court must weigh in reaching a conclusion include: (1) the nature of the prior offense, (2) whether it was for substantially the same conduct for which defendant is on trial, and (3) the effect on the decisional process if the accused does not testify. People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978).
Defendant claims that, since one of the charges before the jury was the possession of a firearm during the commission of a felony, the court should not have allowed evidence of his federal firearm conviction to be used for impeachment purposes.
The trial court recognized its discretion and realized this case involved the classic credibility contest between defendant and the prosecution’s witnesses. Therefore, the court held the probative value of evidence of the firearm conviction outweighed any prejudicial impact. The similarity between the prior conviction and the charged crime does not, per se, bar the use of evidence of the prior conviction for impeachment purposes. People v Monasterski, 105 Mich App 645, 655; 307 NW2d 394 (1981). Since the case did involve a credibility contest it was proper for the court to conclude that the probative value outweighed any prejudicial effect. 105 Mich App 655. The reference to defendant’s prior conviction totaled less than 1 page out of approximately 1,000 pages of transcript. We cannot conclude that the trial court’s decision to allow the evidence was so palpably and grossly violative of fact and logic as to amount to an abuse of discretion and, therefore, require reversal.
III
Did the trial court err by allowing the prosecutor to cross-examine defendant about a prior criminal charge, other than that ruled admissible by the court, which did not lead to a conviction?
The prosecutor, on cross-examination, asked the defendant if the federal firearm violation was the result "of a matter” on July 14, 1979. Defendant answered the inquiry in the negative and explained that he pled guilty to having a weapon in the Federal Court Building in Detroit in 1976. Defendant contends that the prosecutor’s question was an attempt to introduce evidence of a prior arrest to impeach him.
The Supreme Court said in People v Falkner, 389 Mich 682, 695; 209 NW2d 193 (1973), "that in the examination or cross-examination of any witness, no inquiry may be made regarding prior arrests or charges against such witness which did not result in conviction”. The prosecutor here failed to heed the Court’s admonition. As was stated in People v Cole, 50 Mich App 563, 566-567; 213 NW2d 814 (1973):
"It should be pointed out that the prosecution has ready access to all available means of determining whether an arrest has subsequently resulted in conviction. No difficult task or great burden is imposed on the staff or resources of the prosecutor’s office by requiring them to take this additional step in their trial preparation. Indeed, when measured against the increased reliability of the trial process, the task imposed becomes insignificant.”
The prosecutor asked if the weapons charge resulted from a matter on July 14, 1979, in Red ford Township. The specific date and place indicates that the prosecutor had investigated the matter. A competent investigation would have established that the Redford Township matter was not the federal firearm charge. The improper interjection of the Redford Township "matter” or arrest cannot be characterized as a harmless slip of the tongue. The error was prejudicial and inexcusable. People v Marshall, 73 Mich App 97, 101; 250 NW2d 557 (1976).
We find no merit in the remaining claims of error.
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Mackenzie, J.
This is an appeal from a probate court order for partial distribution of an estate. Robert L. Cole died on November 18, 1978. He left a will dated September 22, 1976, which bequeathed his entire estate to his wife, Margaret L. Cole. The will provided for distribution of the estate to the testator’s children and stepson if Margaret Cole failed to survive the testator. Margaret Cole died on February 18, 1978, and Robert L. Cole married Marion Cole, now Marion Cole Cummins, on July 21, 1978.
After a nonjury trial, the probate judge ordered that Marion Cole take half of the share of the estate she would have received had the testator died intestate, less half of the value of certain property derived by Marion Cole from the testator by means other than testate or intestate succession upon his death. Marion Cole’s share was to be computed as a percentage of the gross estate. She was also awarded interest on her share as provided in MCL 600.6013; MSA 27A.6013. Marion Cole appeals by right, while the executor of the estate cross-appeals.
MCL 700.282(1); MSA 27.5282(1) provided:
"If a decedent who was domiciled in this state dies testate leaving a surviving spouse, the fiduciary appointed to represent the estate, before the date for presentment of claims, shall serve notice on the surviving spouse of the spouse’s right to an election as provided by this section and to file with the court an election in writing that the spouse elects 1 of the following:
"(a) That the spouse will abide by the terms of the will.
"(b) That the spouse will take 1/2 of the sum or share that would have passed to the spouse had the testator died intestate, reduced by 1/2 of the value of all property derived by the spouse from the decedent by any means other than testate or intestate succession upon the decedent’s death.”
After being served with the notice required by this subsection, Marion Cole filed an election in writing electing to take the share specified in (l)(b). The election was dated November 5, 1979; the subsection was subsequently amended by 1980 PA 326, effective December 17, 1980, to add an additional alternative. This election was hardly surprising, as the will here was executed well before her marriage to the testator and thus made no provision for her. However, MCL 700.126(1); MSA 27.5126(1) provides:
"If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate the omitted spouse would have received if the decedent did not leave a will, unless it appears from the will that the omission was intentional, or unless the testator provided for the spouse by transfers outside the will and the intent that the transfers were in lieu of a testamentary provision is shown by declaration of the testator, by the amount of the transfers, or by other evidence.”
The probate judge held that Marion Cole’s election under MCL 700.282(1); MSA 27.5282(1) waived her right to the remedy afforded by MCL 700.126(1); MSA 27.5126(1). We do not agree. MCL 700.283(1); MSA 27.5283(1) states that a surviving spouse’s failure to make a timely election under MCL 700.282(1); MSA 27.5282(1) leads to a conclusive presumption that the spouse intends to abide by the terms of the will. None of the alternatives which the spouse may elect under MCL 700.282(1); MSA 27.5282(1) include the remedy for the pretermitted spouse contained in MCL 700.126(1); MSA 27.5126(1). If an election under MCL 700.282(1); MSA 27.5282(1) waived the rights of a pretermitted spouse under MCL 700.126(1); MSA 27.5126(1), those rights would necessarily be waived in every case.
The probate judge regarded Marion Cole’s written election as a binding stipulation pursuant to GCR 1963, 507.9. However, the language of a stipulation may not be construed to effect the waiver of a right not plainly intended to be relinquished. Whitley v Chrysler Corp, 373 Mich 469, 474; 130 NW2d 26 (1964). Since the stipulation here purported to be an election between the two remedies specified in MCL 700.282(1); MSA 27.5282(1), it was not plainly intended to relinquish the right to a third remedy not mentioned in the section.
On appeal, the executor does not attempt to defend the probate judge’s finding that Marion Cole waived her rights under MCL 700.126(1); MSA 27.5126(1). Instead, the executor argues that, under the facts presented here, the remedy afforded by that section was unavailable. The executor points to testimony by Marion Cole that she and the testator left their wills unchanged intentionally and to testimony by various other witnesses that Marion Cole and the testator told them before and during the marriage that they intended to keep their property separate.
MCL 700.291; MSA 27.5291 allows waiver of the rights of a surviving spouse in an estate by written agreement. No written agreement was executed here; the testimony relied on by the executor at best shows an oral agreement. The right of a pretermitted spouse under MCL 700.126(1); MSA 27.5126(1) to the same share of the estate she would have received if her spouse did not leave a will is subject to two exceptions: (1) if it appears from the will that the omission was intentional, or (2) if (a) the testator provided for the spouse by transfers outside the will and (b) if it is shown that the testator intended such transfers to be in lieu of a testamentary disposition.
Here it does not appear from the will that the omission was intentional, although an intentional omission could arguably be inferred from some of the evidence outside the will. It was not disputed that Marion Cole received certain transfers outside the will. She recovered the proceeds of an insurance policy and certain money which the testator had deposited in joint bank accounts before his death. However, the probate judge found as a matter of fact that the testator did not intend such transfers to be in lieu of a testamentary disposition.
This Court does not review appeals from probate court de novo. MCL 600.866; MSA 27A.866. Findings of fact by a probate judge sitting without a jury will not be reversed unless the evidence clearly preponderates in the opposite direction. In re Howarth Estate, 108 Mich App 8, 10; 310 NW2d 255 (1981). We cannot say that the evidence clearly preponderates in the opposite direction from the probate judge’s finding here. In this connection, we note that the executor relies largely on evidence which suggests that the testator did not intend to make any provision whatever for his wife Marion. Such evidence would not support a finding that the transfers outside the will were intended by the testator to be in lieu of a testamentary provision. If the testator intended to make no provision for Marion Cole, then he did not intend the transfers to be such a provision.
The executor also argues that the probate judge erred by computing Marion Cole’s share as a portion of the gross estate. Marion Cole relies upon a provision of the will which specified that the testator’s debts and the expenses of administering his estate were to be paid from the testator’s "residuary estate”. She also relies on certain statutory provisions which explain which assets , of a testate estate are to be used for payment of charges against the estate. MCL 700.156; MSA 27.5156 provides:
"(1) If the testator designates a specific portion of the estate to be appropriated in his will for the payment of any charges against his estate, the charges shall be paid according to the provisions of the will, and out of that portion of the estate thus appropriated insofar as it is sufficient.
"(2) If the provision made by will, or the estate appropriated, is not sufficient to pay all of the charges against the estate, that part of the estate which has not been distributed by the will, if any, shall be appropriated according to the provisions of the law for that purpose.”
MCL 700.157; MSA 27.5157 provides:
"(1) The estate given by will to any devisee shall be held liable for the payment of:
"(a) All charges against the estate.
"(b) The share of the surviving spouse in the event that the spouse elects to take against the will and the will does not provide for the estate to be used for that purpose.
"(c) The share of a child born after the execution of the will, a child or of the issue of a child omitted in the will, or of a spouse omitted in the will.
"(2) If the assets are insufficient to pay or satisfy all of the charges or requirements of subsection (1) and to pay or satisfy all devises, subject to sections 155 and 156, then the charges or requirements shall be paid or satisfied in any manner agreeable to the devisees. If the devisees fail to agree, the devises shall be paid or satisfied in the following order of priority:
"(a) Property specifically devised.
"(b) Property passing by general or demonstrative devise.
"(c) Property devised by the residuary clause.
"(3) If more than 1 person is interested in property under subsection (2), the property within that subdivision which may be appropriated to pay charges against the estate, or the other charges or requirements of subsection (1), shall be appropriated for that purpose proportionately.”
However, MCL 700.126(1); MSA 27.5126(1) indicates that the pretermitted spouse’s share of the estate is that which she would receive if the testator had not left a will. If the testator had not left a will, Marion Cole’s share would have been determined after payment of charges against the estate. See MCL 700.117; MSA 27.5117, which provides in part:
"(1) When a person dies intestate as to any or all of his property, the property shall be first appropriated to the payment of all charges against the decedent’s estate and all of the property of the decedent, or so much of it as may be necessary, may be sold for that purpose by the personal representative.
"(2) All of the heirs who, with the consent of the personal representative or otherwise, have possession of any part of the estate before all of the charges against the estate are paid or satisfied, shall hold the estate subject to those charges and shall be held to contribute according to their respective liabilities to the personal representative or to any heir from whom any part of the estate may have been taken for the payment or satisfaction of the charges.”
Since Marion Cole does not take under the will but instead takes that share she would have received had the testator not left a will, the provision of the will regarding payment of charges against the estate does not mean that such charges cannot be taken into account in determining her share. While MCL 700.157; MSA 27.5157 does not expressly indicate that a pretermitted spouse’s share is liable for payment of charges against the estate, that is because the amount of such charges was deducted from the gross estate before the pretermitted spouse’s share was computed.
We note that this result is in accord with the weight of authority from other jurisdictions. See Anno: Liability for Administration Expenses of Spouse Electing Against Will, 89 ALR3d 315.
The probate judge held that Marion Cole’s share should be determined from the value of the property listed in the amended inventory rather than the value listed in the executor’s final account. However, the share a spouse would receive if the decedent had not left a will is defined as a share of the decedent’s "estate”. See MCL 700.104; MSA 27.5104 and MCL 700.105; MSA 27.5105. MCL 700.4(6); MSA 27.5004(6) provides:
" 'Estate’ means the property of the decedent or other person whose affairs are subject to this act as the property is originally constituted and as it exists during administration. ” (Emphasis added.)
Thus the share of a pretermitted spouse should reflect changes in the value of the property during administration of the estate.
The probate judge awarded Marion Cole interest pursuant to MCL 600.6013; MSA 27A.6013, which provides for interest on "a money judgment recovered in a civil action”. However, it is a well-settled rule of statutory construction that where two statutes are in conflict, the more specific statute, enacted subsequently to the more general one, will prevail. See, for example, Manville v Bd of Governors of Wayne State University, 85 Mich App 628, 636; 272 NW2d 162 (1978). MCL 700.767; MSA 27.5767 provides for interest on "any allowed claim or allowed counterclaim in a civil action or proceeding in the probate court”. Thus interest on a money judgment in a civil action is awarded as provided in MCL 600.6013; MSA 27A.6013, except that if the action is in probate court and results in an allowed claim or an allowed counterclaim, interest is awarded as provided in MCL 700.767; MSA 27.5767. MCL 700.3(4); MSA 27.5003(4) defines "claim” in this context as including liabilities of the decedent, whether arising in tort, contract, or otherwise, liabilities of the estate arising at or before the decedent’s death, and funeral and burial expenses. "Claim” does not include estate or inheritance taxes, demands, or disputes regarding the decedent’s title to specific assets.
Here the probate judge held that a widow seeking a forced share of the estate under MCL 700.282(l)(b); MSA 27.5282(l)(b) stood in the position of a creditor of the estate. Presumably, this result would also apply to a pretermitted spouse seeking a forced share of the estate under MCL 700.126; MSA 27.5126. However, a widow’s right to a forced share of her husband’s estate cannot be characterized as a "liability of the decedent” analogous to those which constitute a claim under MCL 700.3(4); MSA 27.5003(4). The probate judge’s reliance on Tracy v Murray, 44 Mich 109; 6 NW 224 (1880), and In re McLennan’s Estate, 179 Mich 595, 602; 146 NW 265 (1914), was misplaced. Those cases treated the widow as a "creditor” only in the sense that legacies under the will could be reduced to pay liabilities of the decedent. See MCL 700.157; MSA 27.5157. Those cases cannot be read as requiring that a widow seeking to enforce her statutory rights be treated as a "creditor” for all purposes, particularly not for the purpose of a statute which had not been enacted when those cases were decided.
Because no allowed "claim” as that term was used in MCL 700.767; MSA 27.5767 was involved here, arguably MCL 600.6013; MSA 27A.6013 applied if what the widow received was a "money judgment recovered in a civil action” as that term was used in the latter section. However, the purpose of an award of interest pursuant to MCL 600.6013; MSA 27A.6013 is to compensate the prevailing party for the expenses incurred in bringing an action and for the delay in receiving money damages. Waldrop v Rodery, 34 Mich App 1, 4; 190 NW2d 691 (1971); Schwartz v Piper Aircraft Corp, 90 Mich App 324, 326; 282 NW2d 306 (1979); Wood v DAIIE, 99 Mich App 701, 709; 299 NW2d 370 (1980), rev’d in part on other grounds 413 Mich 573; 321 NW2d 653 (1982). An award of interest under MCL 600.6013; MSA 27A.6013 is mandatory in cases to which the statute applies. State Highway Comm v Great Lakes Express Co, 50 Mich App 170, 183; 213 NW2d 239 (1973).
Statutes should be construed, where possible, to give effect to their purpose. See, for example, Webster v Rotary Electric Steel Co, 321 Mich 526, 531; 33 NW2d 69 (1948). Damages are awarded in an ordinary civil action to compensate the plaintiff for loss. By compensating a prevailing party for expenses in bringing an action and for the delay in receiving money damages, MCL 600.6013; MSA 27A.6013 furthers the purpose of compensating the plaintiff for loss. A widow does not receive a forced share of her husband’s estate to compensate her for loss in the same sense that a tort or contract plaintiff receives a money judgment for damages to compensate him for loss. A widow has no right to receive a forced share of her husband’s estate before such a share is assigned to her in the ordinary course of probate. A certain amount of delay and expense is inherent in any probate proceeding. An award of interest pursuant to MCL 600.6013; MSA 27A.6013 on a widow’s forced share would not effectuate the legislative purpose of compensation for loss, because a widow loses nothing to which she was entitled by the delay and expense of probate proceedings. In this connection, we note that an award of interest on a widow’s forced share of the estate would reduce the assets of the estate and thus come at the expense of other heirs and devisees, each of whom has also suffered the delay and expense of probate proceedings. We emphasize that an award of interest under MCL 600.6013; MSA 27A.6013 is mandatory in all cases involving "a money judgment recovered in a civil action” as that term is used in the section; thus, the compensatory purpose of the section cannot be saved by limiting an award of interest to cases in which an award of a widow’s forced share is unreasonably delayed or causes a widow unreasonable expense. We therefore conclude that a probate court order awarding a widow a forced share of an estate pursuant to MCL 700.126; MSA 27.5126 is not a "money judgment recovered in a civil action” as that term is used in MCL 600.6013; MSA 27A.6013.
Reversed and remanded for further proceedings not inconsistent with the foregoing. | [
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