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Fitzgerald, P. J.
This is an original action by Kenneth M. Wojnicz,- an inmate at the state prison at Marquette, seeking a writ of mandamus against the Michigan Department of Corrections. The complaint was filed in June 1970 and on August 25, 1970, this Court entered an order to show cause why certain funds removed from petitioner’s prison account should not be returned.
Most of the facts are set forth in the affidavit of John R. Mills, business manager of Jackson State Prison. ,In July 1966, petitioner was incarcerated in Jackson prison for a term of 3 to 15 years. A check drawn upon the United States Treasury payable to “Kenneth M. and Elizabeth Wojnicz,” representing an income tax refund in the amount of $225.50 was presented by petitioner to John R. Mills at Jackson prison. The instrument which already bore the signature of Elizabeth Wojnicz was then indorsed by petitioner and the full amount of $225.50 was credited to Wojnicz’s account in the inmates’ account ledger and deposited in the institution’s special account in the National Bank of Jackson. In August 1966, petitioner and his account records were transferred to the state prison at Marquette.
Subsequently, in the early part of 1970, Elizabeth Wagner, petitioner’s former wife, presented a claim against the government for $112.75 which represented her share of the proceeds of the income tax refund, claiming that her signature had been forged upon the instrument. As a result of this claim, the United States Treasury Department instituted reclamation proceedings against the Jackson prison as last indorser on the allegedly forged instrument. In April 1970, respondent paid $225.50 out of the inmates’ benefit fund as restitution to the treasury. On or about May 8, 1970, petitioner’s share of the proceeds, $112.75, was returned to the prison by the treasury.
The sole issue is whether the Corrections Department may appropriate funds from an inmate’s account in the absence of notice and a hearing. Petitioner contends that he is being deprived of his property, which amounts to $112.75, without due process of law. He argues that the Corrections Department under the guise of reasonable regulation of state prisoners has, in effect, determined him to be a forger, without ever charging him with an act of forgery, by virtue of the appropriation of the amounts in question from his account.
It is the position of the Corrections Department that Wojnicz owed it $112.75 which it had previously removed from the inmates’ benefit fund to pay off the amount of the check reclaimed by the Treasury Department.
It has long been a basic legal principle within this country that one cannot be deprived of his property by state action without due process of law. In Rassner v. Federal Collateral Society, Inc., (1941), 299 Mich 206, 220, the Supreme Court characterized the importance of “due process” as applied to property rights by stating:
“ ‘Without the guaranty of “due process” the right of private property cannot be said to exist, in the sense in which it is known to our laws. The principle, known to the common law before Magna Charta, was embodied in that character (Coke, 2d Inst. 45, 50), and has been recognized since the Revolution as among the safest foundations of our institutions. Whatever else may be uncertain about the definition of the term “due process of law,” all authorities agree that it inhibits the taking of one man’s property and giving it to another, contrary to settled usages and modes of procedure, and without notice or an opportunity for a hearing.’ Ochoa v. Hernandez [1912], 230 US 139, 161 (33 S Ct 1033, 57 L Ed 1427).”
Therefore, it becomes apparent that minimum standards of due process would require reasonable notice as well as an opportunity to be heard before one is deprived of his property rights. Ridenour v. County of Bay (1962), 366 Mich 225; Trellsite Foundry & Stamping Company v. Enterprise Foundry (1961), 365 Mich 209. Petitioner now claims that he had no knowledge of the actions taken against his account until May 12, 1970, when prison officials informed him both of his $112.75 “debt” to the inmates’ benefit fund and of their intent to remove one-half of all amounts received by petitioner until he had satisfied the alleged obligation.
Defendant presently seeks to justify its actions by reliance on those cases which uphold the right of prison authorities to impose reasonable regulations upon the conduct of inmates. In addition, considerable emphasis is placed on Kimble v. State of Michigan Corrections Department (ED Mich, 1968) 300 F Supp 1122, aff’d (CA6, 1969) 411 F2d 990, where the Federal district court upheld a confiscation by prison officials of contraband money. These cases are easily distinguished and, therefore, not applicable to the case at hand. In Kimble, an inmate, in violation of prison regulations, possessed $350 in cash which he claimed was obtained through the sale of cigarettes. The prison disciplinary board conducted a hearing, at which time prison officials as well as the inmate offered their statements and the board rendered a decision. The district court held that the confiscation was within the disciplinary discretion of the prison officials. In the present case, no such hearing was granted, nor was the petitioner notified of the confiscation from the inmates’ fund until it actually occurred.
As a result of petitioner’s incarceration within the State Prison, he does not enjoy the full benefit of Federal and State procedural safeguards. However, he should not be denied in toto his constitutional rights merely because of the need to regulate prison conduct. An individual’s rights should not be so easily disregarded, and as noted in Nolan v. Scafati (D Mass, 1969), 306 F Supp 1, a bare minimum of due process is required which, if applied to the facts of the case at hand, would take the form of notice to petitioner as well as a hearing. While the courts generally refuse to interfere with prison regulations and policy, a showing of “constitutional deprivations” necessitates the courts’ intervention. Vida v. Cage (CA6, 1967), 385 F2d 408.
Therefore, the writ of mandamus is granted and defendant ordered to return all amounts appropriated from plaintiff’s account and the claim on the alleged debt for the remaining $79.25, or for the total amount claimed, being $112.75, shall be pursued in accordance with standards of dne process. The request for interest is not granted, such being considered de minimis.
No costs allowed, petitioner having paid no fees, being a prisoner indigent and appearing in propria persona.
All concurred.
Const 1963, art 1, § 17, and US Const, Am 14. | [
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Quinn, P. J.
This is a condemnation action filed July 3, 1968, pursuant to PA 1966, No 295, as amended* (MCLA §§213, 361 et seq.-, Stat Ann 1970 Cum Supp §§ 8.261[1] et seq.). The condemnation is incidental to plaintiff’s urban renewal project no. 1. Pursuant to MCLA § 213.368 (Stat Ann 1970 Cum Supp §8.261 [8]), defendants filed motions to review necessity. They also moved to dismiss the proceedings. After extensive hearings and consideration of briefs, the trial judge filed his written opinion which contains detailed findings of fact and conclusions of law. On the basis of this opinion, an order entered November 21, 1969, denying review of necessity and granting dismissal as to defendants Francis J. and Genevieve Wery, Bret S. and Cygred Riley, Estate of Riley, Bowlin, Weston, Ginka, Sonia and Tina Lewis, Mildred E. L. and Zulema M. Hayes and Kontas. The dismissal was for failure of plaintiff to comply with PA 1968, No 189, § 4(2) (c). (MCLA 1969 Cum Supp § 125.74[2] [c]; Stat Ann 1969 Cum Supp § 5.3504 [2] [c]). The latter act was an amendment to PA 1945, No 344 (MCLA § 125.71 et seq.; Stat Ann 1969 Rev § 5.3501 et seq.). All other grounds of dismissal raised in the pleadings were denied.
Plaintiff appealed the order of dismissal and defendants Bret S. and Cygred Riley, Estate of Riley, Bowlin, Weston, Ginka, Sonia and Tina Lewis, Mildred E. L. and Zulema M. Hayes, and Kontas filed a cross-appeal on the denial of their motion to review necessity.
PA 1969, No 336 (MCLA 1970 Cum Supp § 125-.84; Stat Ann 1971 Cum Supp § 5.3513 [14]) became effective November 28,1969. It provided an exemption for urban renewal projects initiated prior to June 22, 1968, from the provisions of MCLA 1969 Cum Supp § 125.74(2) (c), supra, under certain conditions on passage of a resolution by the local legislative body. On the basis that project no. 1 was initiated prior to June 22, 1968, that the conditions specified in PA 1969, No 336, were met, and that Lansing city council had passed the required resolution, plaintiff filed its motion May 8, 1970 to dismiss its appeal and to remand the action for further proceedings. July 7, 1970, this Court dismissed plaintiff’s appeal and ordered that the cross-appeal be prosecuted to conclusion, hence remand was not ordered. That order has not been appealed from, and we consider the present status of this appeal to be an appeal on those issues related to the denial of defendants’ motions to review necessity.
MCLA § 213.368 (Stat Ann 1971 Cum Supp § 8. 261 [8]), limits review of necessity to persons having a justiciable interest claiming fraud or abuse of discretion, or both, on the part of Lansing city council in determining necessity of the taking of all or any part of the property. As to each ground of fraud or abuse of discretion, or both, asserted by defendants as a basis for review of necessity, the trial judge made findings of fact and concluded that no fraud or abuse of discretion was shown. Our review of the record does not convince us that these findings were clearly erroneous (OCR 1963, 517.1), and those findings support the conclusions of the trial judge.
Affirmed and remanded to the trial court for further proceedings on plaintiff’s complaint in condemnation with costs to plaintiff.
All concurred.
By PA 1967, No 206. | [
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Per Curiam.
Defendant, charged with first-degree murder, was convicted by a jury of second-degree murder and sentenced to life imprisonment.
There was no dispute surrounding the specific facts of the crime itself. The evidence adduced at trial, most simply put, reveals that the defendant shot and killed one Margo Garcia on December 25, 1968, following an argument over the treatment of a dog owned by the victim’s brother. In light of the posture of the case as presented to this Court there is no need for further elaboration of the facts.
On appeal, defendant alleges the court committed reversible error in the following instances: (1) error by the trial court in not permitting defendant’s trial counsel to actively participate in the voir dire examination of veniremen; (2) error by the trial court in denying defendant’s motion for mistrial based on testimony of a prosecution witness concerning defendant’s prior criminal record; and (3) error by the trial court in not determining before trial that the jury panel was a fair cross-section of the citizenry.
I
The trial court may permit attorneys to conduct the examination of prospective jurors or may itself conduct the examination, it being a discretionary matter with the trial court. GCR 1963, 511.3.
Error, if any, in the conduct of voir dire by the trial court must arise in the manner of conducting it or in the refusal to ask proper and relevant questions submitted to the court. In the instant case counsel concedes that the court summarized the questions he had submitted. Defendant, however, contends that the court violated his right to counsel under the Sixth Amendment to the United States Constitution by refusing to allow counsel to conduct the voir dire. We fail to see how defendant was denied the effective assistance of counsel in the instant case. A reading of the record amply demonstrates that the trial court conducted this voir dire in a fair and judicious manner.
II
No direct reference was ever made at trial to a prior conviction or record of the defendant. An unresponsive answer of a prosecution witness referred to defendant’s prior “trouble” and “probation”. No emphasis was placed upon this testimony by the prosecutor and the trial court issued corrective instructions to the jury following the testimony in question and at the conclusion of the evidence. While there are circumstances where improper statements are brought to the attention of the jury which are of such a nature that the court’s instruction cannot remove the prejudicial effects, such is not the case here. The trial court correctly instructed the jury and it is apparent that the defendant was not prejudiced by the unresponsive answer complained of by the defendant.
III
The record is devoid of any evidence of a systematic exclusion of Chicanos, i.e., people of Mexican- American heritage, from the jury panel. This issue was never raised at trial and there was no challenge to the jury roll. Trial counsel did not challenge the jury box nor did he seek the aid of the trial court in determining whether there were Mexican-Americans on the jury in this case. Matters not raised at trial cannot be raised for the first time in the Court of Appeals unless manifest injustice is shown. People v. Wright (1967), 6 Mich App 495; People v. Pearson (1970), 24 Mich App 270; People v. Leroy Morgan (1970), 24 Mich App 660.
Affirmed. | [
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Holbrook, J.
This is an appeal as of right from a non jury conviction on a charge of carrying a concealed weapon in an automobile. MCLA § 750.227 (Stat Ann 1962 Bev § 28.424).
On December 6, 1969, a complaint and warrant were issued charging defendant with carrying a concealed weapon in an automobile. Defendant waived examination and after a nonjury trial on May 6, 1970, defendant was convicted, and on May 27, 1970, defendant was sentenced to serve four years’ probation. An order appointing appellate counsel was entered on July 13, 1970, and a claim of appeal was filed on July 22, 1970. An order denying a delayed motion for a new trial was entered on October 2, 1970.
Pertinent facts developed at trial were the following :
Two Detroit police officers on routine patrol saw an automobile parked in the street with the motor running and no occupants. The car was parked in front of a theatre in a no standing zone. There was no key in the ignition. A screwdriver was lying on the front seat. A larceny check on the car was called in by radio and the officers were informed that the car was not listed as stolen. The officers then searched the car and found a .38-caliber revolver in the glove box. They seized and removed the gun from the car.
The officers then stationed themselves across the street to await the return of the driver of the car. Shortly thereafter, defendant entered the car. After he got inside, the officers approached and arrested him for carrying a concealed weapon in an automobile.
The record does not indicate that defendant made any pretrial motion to suppress the pistol as illegally seized evidence. It is a general rule that any motion to suppress evidence must be made before trial if the defense counsel is aware of the evidence at that time. People v. Smith (1969), 19 Mich App 359; People v. Harper (1966), 3 Mich App 316. Here defendant waived the preliminary examination. However, there appears to be little doubt that defendant was aware of the seizure of the pistol and the question of the legality of that seizure. The orderly conduct of a trial necessitates that such motions and the resultant hearing be disposed of before trial. However, this Court can still consider the issue, even though no pretrial motion was made, if the lack of that motion was decisive in the defendant’s conviction. People v. Degraffenreid (1969), 19 Mich App 702. The defendant did object to the admission of the gun at trial, and the trial court ruled it to be admissible.
Defendant raises two issues on appeal. First, that the pistol should have been excluded from evidence because it was illegally seized and, second, the evidence was insufficient to find the defendant guilty beyond a reasonable doubt.
A police officer may make a warrantless search and seizure, either before or after an arrest, if he has probable cause to believe that a felony has been or is being committed. People v. Zeigler (1960), 358 Mich 355. Whether or not a search and seizure was reasonable and, therefore, legal depends upon the facts known to the officers at the time of the search. People v. Zeigler, supra; People v. Wade (1970), 23 Mich App 132. The people’s brief does not address itself to the question of whether the search and seizure was reasonable except to state:
“The search of the vehicle followed two misdemeanors being committed in the presence of the police officers — namely, an illegally parked vehicle in a no standing zone left with the motor running.”
The people also assert that the search was incident to a lawful arrest. However, the facts that brought about the arrest for having a concealed weapon in the automobile came to light after the search, whereas the facts to justify and make the original search reasonable necessarily had to be present beforehand.
The fact that forbidden fruit (a weapon) was discovered does not change the principle. This Court in People v. Giacalone (1970), 24 Mich App 492, 494, correctly stated:
“We know of no constitutional doctrine, judicially approved, which permits the validation of an illegal search on the basis of the results it obtains.”
In the instant case, the facts were not sufficient to give the officers probable cause to believe that a felony had been or was being committed. The fact that the car was parked in a no standing zone and directly in front of a theatre is not in and of itself justification for a search and seizure. A violation of the motor vehicle code cannot justify, by itself, a search and seizure. People v. Lee (1963), 371 Mich 563, 567, 568. People v. Zeigler, supra.
We cannot rule that the gun was admissible under the proviso of the search and seizure section of the Michigan Constitution, excepting searches and seizures of weapons and narcotics outside the curtilage of a dwelling, because it has been declared violative of the Federal Constitution. People v. Pennington (1970), 383 Mich 611.
Because the officers did not have probable cause to search the car, the pistol was illegally seized and, therefore, was inadmissible as evidence. Mapp v. Ohio (1961), 367 US 643 (81 S Ct 1684, 6 L Ed 2d 1081, 84 ALR2d 933); People v. Lee, supra.
The defendant, at the scene of the arrest, denied any knowledge of the gun. At trial, he explained why he had parked the automobile where he did, i. e., he had an urgent call of nature and it required his immediate attention. He further testified that his car had been stolen and that when it was returned to him, the keys were missing and he used a screwdriver to start the automobile. He stated that at the time the automobile was stolen, he reported it to the police.
Defendant’s conviction is also defective because the prosecution offered no proof that the defendant “operated or occupied” the vehicle with the weapon located therein. This is an essential element of the offense required by the statute MCLA § 750.227 (Stat Ann 1962 Rev § 28.424). Without this essential element of proof the conviction must be set aside.
Reversed.
All concurred.
The applicable statute provides in essential part that:
“Any person who shall * * * carry a pistol concealed on or about his person, or, whether concealed or otherwise, in any vehicle operated or occupied by him * * * without a license to so carry said pistol as provided by law, shall be guilty of a felony.” | [
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Per Curiam.
Defendant was convicted by a jury of armed robbery, MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797), and from this conviction he appeals, contending that the conduct of the prosecutor was so prejudicial as to deny him a fair trial. The record indicates that the conduct of the prosecutor was not such as to prejudice unduly the defense’s case, and the admonition by the trial judge to the jury to disregard the prosecutor’s statements was sufficient to prevent reversible error. People v. Burnstein (1933), 261 Mich 534; People v. Williams (1968), 11 Mich App 62.
During the trial, a police officer testified that, after having given the defendant his constitutional warnings, the defendant declined to make a statement. The following colloquy took place between the police officer and the prosecutor:
“Q. (Prosecuting Attorney): And after you advised him of his rights, did you talk to him further about this?
“A. (Prosecution witness): Tried to.
“Q. And did he decline to answer any questions?
“A. He preferred not to make any statements.”
At the outset, we note that no objection was made to the question or answers by the defense counsel, and no motion to strike the testimony or request for curative instructions was made. It is oftentimes said that a timely objection at trial to the introduction of allegedly improper evidence is a prerequisite to appellate review. People v. Fry (1969), 17 Mich App 229. Defendant alleges that, inasmuch as this constituted an impermissible comment upon defendant’s previous exercise of his privilege to remain silent, his failure to object does not preclude review upon appeal. People v. Wilson (1969), 20 Mich App 410.
Other than this brief colloquy between the prosecutor and the police witness, the prosecutor made no other references or argument regarding this defendant’s right to remain silent. The judge instructed the jury that the defendant had a right and a privilege to remain silent and that no adverse inference could be drawn from such silence. While not convinced that the above colloquy constituted an abridgement of defendant’s right to remain silent, we shall assume that it did, but we find the other evidence against this defendant was overwhelming and, if any error was committed, it was harmless beyond a reasonable doubt. Chapman v. California (1967), 386 US 18 (87 S Ct 824, 17 L Ed 2d 705), reh. den. 386 US 987 (87 S Ct 1283, 18 L Ed 2d 241). Compare People v. John Willie Williams (1970), 26 Mich App 218; also People v. Seales (1969), 16 Mich App 572; also People v. Hicks (1970), 22 Mich App 446; also People v. Bigge (1939), 288 Mich 417.
Defendant also raises the issue whether the in-court identifications by witnesses were based upon their identifications at a lineup which was conducted during a period of illegal detention. This Court deems it crucial that the defendant did not make timely objection on this issue. People v. Childers (1969), 20 Mich App 639. See People v. Adams (1969), 19 Mich App 131. Furthermore, defendant’s brief furnishes no indication that the delay was improper, unreasonable, or was used for the purpose of obtaining evidence against the defendant. See People v. Farmer (1968), 380 Mich 198; People v. Ball (1968), 15 Mich App 5.
Defendant’s last contention of error is that the trial court excluded from the consideration of the jury a possible verdict on an included offense, citing the recently decided case of People v. Lemmons (1970) , 384 Mich 1. In Lemmons, the defendant (as here) was charged with robbery armed. There was no request to charge on the lesser included offense; the charge as given by the court was:
“There are only two possible verdicts as to each defendant. You may find the defendant, naming them individually, guilty of robbery armed or not guilty. There are no included offenses.” People v. Lemmons, supra, p 2.
The Supreme Court held that the trial court erred reversibly when it excluded consideration of any lesser included offenses.
In the instant case, no request to charge on the lesser included offenses was made and no objection to the charge was made, although ample opportunity was afforded both counsel. Furthermore, defense counsel here made a request to charge as follows:
(Defendant’s Bequest to Charge No. 1) “The information in this case charges the defendant with robbery armed. It is for you to decide whether or not the prosecution has proven a case of robbery armed. If it has not done so in accordance with the law as I shall give it to you, it is your duty to render a verdict of not guilty and acquit the defendant.”
It is evident that no request to charge was made regarding any lesser included offenses and the trial judge charged the jury substantially in accord with defendant’s request.
Finally, the trial judge did not affirmatively exclude the consideration of any lesser included offenses, as in Lemmons. People v. Jones (1935), 273 Mich 430; People v. Allie (1921), 216 Mich 133. See People v. Netzel (1940), 295 Mich 353; People v. John Willie Williams (1970), 26 Mich App 218; People v. Herbert Van Smith, Jr. (1971), 30 Mich App 384. No reversible error was committed here.
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Per Curiam.
Defendant was convicted of pandering by a jury on September 8, 1969, and was sentenced to serve 3 to 20 years in prison. He is before this Court on appeal by right.
Defendant first contends that he was unduly prejudiced by the admission of allegedly illegally seized evidence. However, defendant made no motion below to suppress the evidence; and, therefore, we will not reverse unless the admission of that evidence was decisive in determining defendant’s guilt.
Our review of the record convinces us that a new trial at which the evidence in question would be suppressed would serve no useful purpose. It is our opinion that defendant would again be convicted, based upon the other evidence presented against him. We do not, therefore, need to discuss the issue of whether or not the search was in fact illegal.
Defendant next contends that an incorrect statement made by the prosecutor during closing argument requires reversal. The statement referred to was that defendant had been convicted of second-degree murder in Indiana, when in fact defendant had only been convicted of second-degree burglary in that state. Defendant made no objection to the statement at the trial, but now contends that the remark was so prejudicial that it deprived him of a fair trial.
The rule is that this court will reverse a conviction based upon a prejudicial remark made during closing argument, only when the prejudice could not have been rectified by a curative instruction on the part of the trial judge, where the prejudicial remark was not objected to at the trial below. Here, the trial judge could have easily corrected the misstatement made by the prosecutor. Therefore, we will not reverse since the remark was not objected to below.
Affirmed.
MOLA § 750.455 (Stat Ann 1954 Rev § 28.710).
People v. Degraffenreid (1969), 19 Mich App 702, 716.
People v. Humphreys (1970), 24 Mich App 411. | [
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Per Curiam.
By his plea of guilty, defendant was convicted of attempted larceny in a building, MCLA § 750.360 (Stat Ann 1954 Rev § 28.592) and MCLA § 750.92 (Stat Ann 1962 Rev § 28.287), and was sentenced to a term of one to two years. On appeal, he contends that, in accepting his guilty plea, the trial court erred in failing to: (1) ascertain defendant’s participation in the offense; (2) ascertain the truth of the plea; (3) inform defendant of the nature of the acccusation against him; and (4) inform defendant of the consequences of his plea.
After a careful review of the record in light of the requirements of GrCE. 1963, 785.3 and of the decisions in People v. Barrows (1959), 358 Mich 267; People v. Dunn (1968), 380 Mich 693; People v. Atkins (1966), 2 Mich App 199; People v. Leach (1966), 2 Mich App 713; and People v. Bartlett (1969), 17 Mich App 205, we find no reversible error. We are convinced that the defendant pled guilty because he was in fact guilty — that is our main concern. People v. Dunn, supra.
Affirmed. | [
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Per Curiam.
This is another one of many appeals from a guilty plea to a lesser included offense of the crime with which the defendant was charged. Defendant was originally charged with the crime of robbery armed. He demanded and was given an examination at which hearing he was represented by counsel. He was first arraigned in the Becorder’s Court for the City of Detroit on March 4, 1968, and stood mute, and the court entered a plea of not guilty on his behalf. On April 16, 1968, defendant again appeared before the court with his counsel present, at which time his counsel stated as follows:
“Mr. O’Connell: Your Honor, my name is James O’Connell, I represent the defendant, Fred Stage.
“I have advised him of his constitutional right to a trial by jury or trial by yourself, sitting without a jury.
“He has elected to waive that right and wishes to offer a plea at this time to the included offense of assault with intent to rob, being armed.”
Upon ascertaining that the prosecuting attorney had no objections, the judge proceeded to question the defendant to ascertain that his plea was made freely, voluntarily, and understandably. The court also inquired and was informed by the defendant in his own words that he had entered a bar at Harper and Gratiot and robbed the bartender at gun point of approximately $300. The plea of guilty was accepted by the court, and defendant was sentenced on April 30, 1968, to a prison term of from 10 to 20 years. Defendant was represented by his attorney at all of the proceedings.
On appeal, defendant asserts that the trial court failed to comply with the requirements of GrOR 1963, 785.3. We have carefully reviewed the record and find that the trial judge fully complied with the rule. People v. Minson (1970), 24 Mich App 692; People v. Wade (1970), 24 Mich App 518. Defendant’s claim of error is without merit.
Defendant also asserts that it was reversible error for the trial court to inform him before accepting his plea that once the plea was taken, it could not be withdrawn. The withdrawal of a guilty plea is not of right but within the sound discretion of the court. People v. Irwin (1970), 24 Mich App 582; People v. Zaleski (1965), 375 Mich 71. While the statement of the judge was technically incorrect, it was evidently made for the purpose of impressing upon the defendant that he should be sure about making his plea of guilty because he would not have an absolute right to withdraw his plea. Defendant does not indicate how he has been harmed by the statement of the trial judge or that it has resulted in any prejudice to him. It is considered by this Court at most harmless error.
Affirmed.
MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797).
MCLA § 750.89 (Stat Ann 1962 Rev § 28.284). | [
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Per Curiam.
Defendant appeals as of right from a plea-based conviction on the charge of assault with intent to rob and steal being armed, MCLA § 750.89 (Stat Ann 1954 Rev § 28.284). The people move to affirm.
Defendant claims that the trial court erred in accepting his plea for the reason that the interrogation of the trial judge did not show that the complainant was put in fear by the toy pistol used by the defendant in the hold-up.
Under the provisions of MCLA § 750.89 (Stat Ann 1954 Rev § 28.284), it is not necessary that the victim of an assault with intent to rob being armed be put in fear. That section provides:
“Sec. 89. Assault with intent to rob and steal being armed — Any person, being armed with a dangerous weapon, or any article used or fashioned in a manner to lead a person so assaulted reasonably to believe it to be a dangerous weapon, who shall assault another with intent to rob and steal shall be guilty of a felony, punishable by imprisonment in the state prison for life, or for any term of years.”
The interrogation by the trial judge showed the defendant entered the store, pulled a toy pistol on the salesgirl, took the money from the cash register, and left the store. Clearly the statements of the defendant are sufficient to justify the acceptance of a plea of guilty to the offense charged. There was no miscarriage of justice by the trial judge’s acceptance of the plea. People v. Dunn (1968), 380 Mich 693.
The motion to affirm is granted. | [
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Bronson, J.
Plaintiff, Bryce Petrie, after being granted leave to file a quo warranto proceeding in Antrim County Circuit Court, filed a motion for summary judgment. The motion sought to have defendant, Robert Curtis, ousted from the office of Sheriff of Antrim County and have plaintiff declared the person legally entitled to the office. The court granted plaintiff’s motion for a summary judgment. Defendant appeals as of right to this Court from the trial court’s order.
The uncontroverted facts, as set forth in plaintiff’s affidavit filed with his motion for a summary judgment, can be briefly stated. Plaintiff, as a write-in candidate, opposed defendant in the general election held November 5, 1968, for the office of Sheriff of Antrim County. Although a recount indicated that plaintiff lost the election by a total of 98 votes, the County Board of Canvassers refused to count an additional 140 votes as representing valid write-in votes for plaintiff because plaintiff’s name was not properly designated. Specifically, 132 of the disqualified votes simply designated a vote for “Petrie”; two votes designated “Bryan Petrie”; three votes, “Petry”; one vote, “Petrie, B.”; one vote, “B. L. Petrie”; and a final vote for “Pettries”.
Plaintiff further stated in his affidavit that “Petrie” is not a common name in the county and that no other male person named “Petrie” was a candidate for public office in the election; that plaintiff was juvenile officer of the county probate court and well known to the voters; that plaintiff’s write-in campaign was widely publicized locally; and that plaintiff believed that all 140 uncounted votes referred to were intended for him.
The circuit court ruled that the 132 votes designated “Petrie” logically could refer only to plaintiff and pursuant to G-CR 1963, 117.2(3) granted plaintiff’s motion for a summary judgment. The court’s order provided for the ouster of defendant, Robert Curtis, and declared that plaintiff was legally entitled to hold the office of Sheriff of Antrim County. Plaintiff is presently serving in the position.
For reasons about to be stated, we hold that the trial court erred by counting the 132 ballots marked “Petrie” as valid votes for plaintiff, Bryce Petrie. We need not comment on the remaining eight votes since our determination of their validity or invalidity would not affect the outcome of the election.
Under established Michigan law, write-in ballots which do not contain the “Christian name” of the candidate are invalid. People, ex rel. Attorney General, v. Tisdale (1843), 1 Doug (Mich) 59; People, ex rel. Lake, v. Higgins (1854), 3 Mich 233; People, ex rel. Williams, v. Cicott (1868), 16 Mich 282. Since the 132 ballots contained the surname “Petrie” only, and did not contain plaintiff’s “Christian name”, “Bryce”, they could not legally be considered votes for the plaintiff.
The rule established by Michigan case law, which may permit the intent of the electorate to be frustrated by a mere technicality, as evidenced by the instant case, appears to be contrary to the rule in every other jurisdiction. See 26 Am Jur 2d, Elections, § 268 p 96; 86 ALR2d 1025.
Our view on the issue is similar to that of Chief Justice Cooley, as expressed in his dissenting opinion in Cicott, supra, p 317:
“I regret that my brethren are disposed to still follow the case of People v. Tisdale, 1 Doug (Mich) 59, notwithstanding the majority are of opinion that it is unsound in principle. The case has no support, as I think, either in the authorities or in the analogies of the law, and no court outside the state has ever followed it. It is true, as my brethren have remarked, that it lays down a rule easy of application, and one that is no more unfair to one candidate than to another; but it does not seem to me to be sufficient reason for retaining an unsound rule that it is impartial in its infliction of injustice. In every case where it becomes important to apply the rule at all, it has the effect to defeat the clearly expressed will of the electors.”
Although we are deeply disturbed by a rule which effectively disenfranchised 132 voters on a mere technicality, we are, nevertheless, bound by precedent, however ancient. But Avhat was done by our Michigan Supreme Court in 1843 can be undone by our Michigan Supreme Court in 1971.
Judgment reversed. No costs.
All concurred. | [
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Per Curiam.
Appealing his jury conviction of armed robbery, defendant poses substantially two questions.
I. Should the trial court have permitted the defendant to call alibi witnesses although no notice of alibi was given?
The alibi statute reads as follows:
“Sec. 20. Whenever a defendant in a criminal case not cognizable by a justice of the peace shall propose to offer in his defense testimony to establish an alibi on behalf of the defendant, * * * such defendant shall at the time of arraignment or within 10 days thereafter but not less than 4 days before the trial of such cause file and serve upon the prosecuting attorney in such cause a notice in writing of his intention to claim such defense and the names of witnesses to be called in behalf of such defendant to establish such defense known to him at that time. Names of other witnesses may be filed and served before or during the trial by leave of the court and upon such conditions as the court shall determine. In cases of a claimed alibi such notice shall include specific information as to the place at which the accused claims to have been at the time of the alleged offense.
“Sec. 21. In the event of the failure of a defendant to file the written notice prescribed in the preceding section, the court may in its discretion exclude evidence offered by such defendant for the purpose of establishing an alibi * * * of such defendant as set forth in the preceding section.”
The complaint filed in district court alleged the offense on a named victim at Muskegon Heights on or about February 21, 1969. At the preliminary examination, during which the defendant was personally present and was represented by counsel who cross-examined the witnesses, the victim and other persons testified more exactly to the date, hour, and place. At the conclusion of the examination the district judge ordered the prosecutor to notify counsel for defendant within 10 days as to the date, time, and place on which reliance would be placed at trial, and bound the defendant over for trial.
At the defendant’s arraignment six days later he stood mute. Neither at the arraignment nor during the intervening 3-1/2 months until the trial did the defendant give notice of alibi or take any action to require the prosecutor to fix the date, time, and place on which reliance would be placed.
Assuming that the district court had authority to make the order as to fixing of the date, time, and place within 10 days after the preliminary examination, that court lost jurisdiction to enforce its order upon the filing of its return to circuit court. MCLA § 766.13 (Stat Ann 1954 Rev § 28.931); In re Elliott (1946), 315 Mich 662, 675. Had the defendant believed it necessary to fix the date, time, and place for the purpose of giving notice of an alibi defense, he should have moved the circuit court for an appropriate order either under the provisions of MCLA § 767.51 (Stat Ann 1954 Rev § 28.991) or under the court’s inherent authority to act in the interests of justice. The defendant cannot now be heard to complain of a situation created by his own inaction.
The court set June 19 as the date of trial. When the defendant failed to appear for trial his bond was cancelled and a bench warrant issued for his arrest. After defendant was apprehended the court set the trial date as July 1. Defendant made no motion for a continuance.
On July 1, just before the trial began, defendant’s counsel requested permission to present alibi witnesses. He made the same request at the conclusion of the people’s case. The court denied each request. The record sustains the court’s unchallenged reasons for denial:
“It seems * * * this defendant should have advised his counsel that he had an alibi for that date and time. Now, obviously, he didn’t do this until yesterday * * * lam quite well aware of the difficulty of defense counsel * * * particularly when the defendant is in jail and can’t be outside helping counsel find names and getting addresses correct, so on and so forth. But, what concerns me in this case is that this defendant did not # * * and has not, at least on the face of things, cooperated with his counsel * * * where counsel can ascertain who these alleged alibi witnesses are, what their names are, where they live, and give counsel an opportunity to have them * * * present in the time that the statute calls for, # * * to give notice to the prosecutor. Now, I lay that lack firmly on the shoulders of the defendant. It seems to me that the very first thing the defendant would tell his counsel, if in truth such facts existed, that I wasn’t even there at that time and date. Yet, apparently he didn’t do this until yesterday.”
At trial the victim and other witnesses testified to the same date, time, and place as they had testified at the preliminary examination almost four months before. Defendant’s counsel used the transcript of this examination for impeachment, but not as to these matters.
No notice having been given, because of defendant’s failure to co-operate with his counsel, defendant was properly precluded from presenting alibi witnesses at the trial, whether such witnesses had been produced by the defendant or had been subpoenaed by the prosecutor at the request of defendant’s counsel for the benefit of the defendant. The trial court did not abuse its discretion.
II. Does the Michigan statute which requires notice of an alibi defense deprive a defendant of his liberty without due process of law because it fails to require the prosecuting attorney to advise the defendant of details of the alleged offense?
These statutory provisions pertaining to an alibi defense protect the public by preventing a defendant on trial from suddenly producing witnesses whose credibility the prosecutor had no opportunity to investigate before trial.
Defendant argues that the statute is void for want of mutuality, in that it requires the defendant to state specific information as to his whereabouts at the time of the alleged offense, but does not require the prosecutor to specify the date, time, and place of the offense.
The alibi statute does not violate due process requirements because it fails to require the prosecutor to state the date, time, and place of an alleged offense. The trial court’s denial of a motion to compel the prosecutor to furnish this information might or might not result in such a violation, depending upon the circumstances of the particular case. Here, the circumstances do not even require that such a determination be made.
Affirmed.
MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797).
MOLA §§ 768.20, 768.21 (Stat Ann. 1954 Rev §§ 28.1043, 28.1044).
MCLA § 768.2 (Stat Ann 1954 Rev § 28.1025). It is doubtful whether the defendant could have shown either that the grounds for such a motion did not arise out of his own fault or negligence or that diligent efforts had been made to secure the witnesses, as required by GCR 1963, 503.
After posting bond March 25, defendant’s freedom from jail continued for approximately three months, terminating with his arrest pursuant to a warrant issued when he failed to appear on the first trial date.
People v. MoFadden (1956), 347 Mich 357, 362, 363. | [
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Per Curiam.
Plaintiffs appeal from an order dismissing their action for failure to appear on date of trial. Pursuant to GCR 1963, 820.1(7), we order reinstatement of this action and remand it for trial.
By stipulation filed July 31, 1969, counsel for the parties adjourned the original trial date from August 21, 1969, to November 17, 1969. The trial court file discloses no order pursuant to this stipulation, which probably accounts for the fact that plaintiffs’ counsel was assigned for trial on another case on November 12, 1969. Pursuant to local rule, plaintiffs’ counsel, on learning of the conflicting assignments, sought a second adjournment from the presiding judge. Although defendants consented to the adjournment, it was not granted. Plaintiffs’ counsel’s engagement in a jury trial in another court prevented his appearance on November 17, 1969, for trial of this action.
The Wayne Circuit Court must have local rules to control the flow of litigation. Those rules were followed in this case; they would not have been followed had the presiding judge known that this action was adjourned for trial on November 17, 1969, as far back as July 31, 1969. An order pursuant to the stipulation of July 31, 1969 would have disclosed this fact to the presiding judge. Plaintiffs’ action is lost unless it is reinstated. Defendants did not oppose the appellate relief sought, so no costs are awarded. | [
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Per Curiam.
The defendant was convicted by a jury following a three-day trial for the crimes of indecent liberties with a male minor and gross indecency. The court placed the defendant on probation for a period of five years. Defendant appeals as of right.
Defendant’s first assignment of error relates to certain references made by the prosecutor in his opening and closing statements. It is defendant’s contention that the statements, which revealed the manner by which the police were informed of the incident, were not factually established by the evidence presented. A review of the record discloses that the statements were based upon a fair inference from established fact. Furthermore, defendant has failed to convince this Court that the statements were of a prejudicial nature and contributed to an improper verdict. People v. DeBeaulieu (1944), 308 Mich 173, 175; People v. Peck (1907), 147 Mich 84, 95.
Defendant also contends that the trial court committed reversible error by failing to grant defendant a mistrial when a member of the jury, after the trial had commenced, informed the court that he knew the father of a res gestae witness.
An examination of the juror, conducted in chambers by the trial judge, revealed that the juror did not become aware of the relationship between the father and the res gestae witness until the juror recognized the father in court. The juror, responding to questions by the trial judge, stated that he was casually acquainted with the witness’ father, but that they had not seen each other in over three years. The juror stated that his acquaintance with the witness’ father would not affect his ability to render an impartial verdict.
The defendant has failed to make a showing to this Court that actual prejudice resulted from the above-described situation. People v. Nick (1960), 360 Mich 219. See, generally, Anno: 11 ALR3d 859.
Judgment affirmed.
MOLA § 750.336 (Stat Ann 1954 Rev § 28.568).
MOLA § 750.338 (Stat Ann 1954 Rev § 28.570). | [
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R. B. Burns, J.
Mrs. Cachola slipped and fell on a broken fruit jar and its contents while shopping at the defendant’s supermarket. Defendant denied plaintiffs’ charge of negligently operating the supermarket and, in addition, stated that Mrs. Cachola was not injured by the fall. Defendant also pleaded that Mrs. Cachola was guilty of contributory negligence.
Plaintiffs appeal from the jury’s verdict of no cause of action. Plaintiffs claim three errors, only one of which will be discussed in this opinion.
Plaintiffs claim the trial judge erred when he denied plaintiffs’ motion for a mistrial. The motion was made after defendant’s counsel made the following statement:
“Dr. Prisbie, you’re currently under indictment in the United States Federal court for failing to report taxable income ?”
Plaintiffs immediately moved for a mistrial. The trial judge sustained the objection but did not grant the motion for a mistrial.
“The Court: May I say, ladies and gentlemen of the jury, the issuance of an indictment is an allegation. One is presumed to be innocent until proven guilty beyond a reasonable doubt; so the issuance of an indictment in and of itself has no bearing in this cause unless there’s some disposition.
“You made a statement and, therefore, I’ll instruct the jury to disregard it and you asked him if there was and I’m not going any further. Therefore, I’m telling the jury to disregard the question and I’ll sustain the objection of Mr. Zeff.”
As stated in People v. Milhovich (1971), 31 Mich App 582, 585:
“Although the court instructed the jury to disregard the testimony, by ‘that time * * * the damage had already been done to defendant’s cause in the minds of the jurors.’ People v. Greenway (1962), 365 Mich 547, 550.”
The defense deliberately, with a calculated risk that the error would be declared harmless, injected a prejudicial statement into the proceedings.
This Court continues to have appeals wherein attorneys have deliberately attempted to introduce inadmissible evidence and ask objectionable questions for the calculated purpose of prejudicing the other party’s right to a fair trial. The practice should stop. Attorneys who attempt such tactics should realize they risk a reversal.
Reversed and remanded for a new trial.
Costs to plaintiffs.
Levin, J., concurred. | [
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Per Curiam.
Plaintiff Norman Dillard was awarded a verdict of $50,000 by a jury, for injuries suffered when defendant’s automobile struck the rear end of plaintiff’s automobile. Defendant’s motion for a new trial was granted by the trial court. The plaintiff thereupon moved for a rehearing on the motion for a new trial. The trial court, after the hearing, decided to deny the motion for new trial provided plaintiff would agree to reduce the judgment to $20,000. Although the plaintiff did not agree to the reduction in the jury verdict, the trial court ordered that a motion for new trial be denied and judgment entered for $20,000. From this order, plaintiff appeals.
The standard of appellate review in a personal injury case from a trial court’s remittitur of a jury verdict was recently set forth in Stevens v. Edward C. Levy Company (1965), 376 Mich 1, 4, wherein the Court stated:
“In point is the following quotation from 6 Callaghan’s Michigan Pleading & Practice (2d ed), §41.13, (p 397), cited with approval in Weeks v. Hyatt [1956], 346 Mich 479, 490:
“ ‘As long as the- amount awarded is within the range of the evidence, and within the limits of what reasonable minds might deem just compensation for such imponderable items as personal injuries sustained and pain and suffering, the verdict rendered should not be set aside.’
“We approve, also, from 9 Michigan Law & Practice, Damages, § 61, pp 62, 63:
“ ‘There is no fixed criterion for determining when an award of damages is excessive, but if an award is within the scope of the testimony, fairly represents the judgment of the jury, and does not appear to have been the result of prejudice, passion, partiality, sympathy, or corruption, it will generally be sustained, whether attacked as excessive or inadequate. However, if an award is so excessive as to shock the judicial conscience, it will be reduced.
“ ‘The permanency of an injury has a bearing on whether an award is excessive.’
“In Cleven v. Griffin [1941], 298 Mich 139, this Court 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 [1934], 266 Mich 397; Weil v. Longyear [1933], 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 & Co. [1927], 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. Watrous v. Conor, supra; Michaels v. Smith [1927], 240 Mich 671. The verdict was within the range of the testimony and not excessive.’
“In Majewski v. Nowicki [1961], 364 Mich 698, we said:
“ ‘There is nothing to indicate that the verdict was reached as a result of passion, prejudice, mis take of law or of fact, or that it amounts to an injustice to defendants or is contrary to the evidence. We can only conclude that the entering of an order requiring remittitur constituted an abuse of discretion.’ ”
Applying these principles to the instant case, we conclude that the trial court abused its discretion in requiring the remittitur. The verdict, as rendered by the jury, was within the range of the testimony presented. Medical testimony, if accepted as true by the jury, established that Norman Dillard was suffering from a protruded disc in his back. The proofs as to pain, suffering, permanency of injury, medical and hospital expenses, and loss of wages were sufficient to justify the verdict. Although the verdict is a substantial one, we cannot say that it shocks our judicial conscience. Watrous v. Conor (1934), 266 Mich 397; Stowers v. Wolodzko (1969), 19 Mich App 115; Shirley v. The Drackett Products Company (1970), 26 Mich App 644.
Accordingly, we set aside the remittitur and remand for entry of judgment on the verdict. Costs to plaintiff.
“Plaintiff” will be used throughout to refer to Norman Dillard, the injured party, and Stuyvesant Insurance Co., his subrogee. | [
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O’Hara, J.
This litigious little drama arises from a boundary dispute between adjoining property owners. Its origins lie at least as far back as 1955 when plaintiffs initially sued defendant. For a lack of progress, the court entered a dismissal without prejudice. Subsequently, in 1967, plaintiffs again brought suit alleging that defendant, who owned lot 4, was trespassing on their land [lot 5] and, in general, doing acts destructive to its value. Plaintiffs sought a permanent injunction restraining similar acts and $5,000 in damages. In his answer the defendant denied most allegations made and, additionally, pleaded a counterclaim which sought judicial recognition of a certain “old line fence” as the legal boundary between the parties’ land.
Prior to his opening statement at the trial, defendant’s counsel admitted the allegations in plaintiffs’ complaint and consented to the entry of a permanent injunction restraining defendant from entering upon lot 5. No damages were awarded. Thereupon, a recess was called and the trial judge directed that surveyors representing the parties attempt settlement of the remaining issue as to the property line between lots 4 and 5. The negotiations proved fruitless.
Upon resumption of the trial, the defendant promptly moved to dismiss his counterclaim “without prejudice”. Plaintiffs objected strenuously contending that defendant should either present his proofs at that time or that any dismissal, alternatively, should be “with prejudice”. The trial judge noted that he was powerless to compel a litigant to offer his proofs and that the only issue remaining was whether the dismissal would be with or without prejudice. Still, defendant did not indicate a willingness to offer his proofs. Hence, the trial court dismissed the counterclaim with prejudice. Also denied was defendant’s post-trial motion for a court order authorizing him to proceed with his proofs on the counterclaim.
On this appeal of right defendant assigns as error the dismissal of his counterclaim with prejudice.
Once a litigant has proceeded to trial on his counterclaim, both GrCB. 1963, 504.1 (2) and ante cedent case law recognize that the “granting or refusal of leave to dismiss * * * is a matter of practice resting in the discretion of the court, which discretion is to be exercised with reference to the rights of both the parties”. City of Dearborn v. Michigan Turnpike Authority (1955), 344 Mich 37, 47. See, also, Danziger v. Village of Bingham Farms (1961), 362 Mich 629.
Under the circumstances, the trial judge should, and in fact did, weigh the competing interests of the parties along with any resultant inconvenience to the court from further delays. He could hardly ignore the unsettling effect of the boundary dispute on the land in question. Any reasonable resolution of the dispute included the determination of the boundaries between lots 4 and 5. For the court to hold otherwise would have denied plaintiffs the relief sought and also would have rendered the considerable investment of judicial energy for naught.
Our examination of the record indicates that the trial court sought resolution of the impasse via all reasonable means and that the learned judge exhibited admirable restraint during the proceedings. As an indication of the court’s thoroughness, we need look no further than the following excerpt from the record:
“The Court [addressing defendant’s counsel]: The court is of the opinion, Mr. Watson, that this is the day set for trial. The case has been pretried. We have tried several days to settle the case. We have exhausted every means of pretrial discovery. We have had at least three surveyors in chambers to go over the problem in an attempt to settle it, without avail. We are here for trial this morning.
“The plaintiffs, Dr. Granger and his wife, are entitled to their day in court. They are entitled to their day in court on your complaint today. So the court under the circumstances has no choice hut to dismiss your complaint as you pray for. But the court would add that it should be dismissed with prejudice.”
Since it was defendant who elected not to put in his proofs, he cannot he heard to allege an abuse of judicial discretion by the judge in dismissing with prejudice.
Affirmed. Costs to the plaintiffs.
All concurred.
“Except as provided in subrule 504.1(1), an action shall not be dismissed at the plaintiff’s instance unless by order of court upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the court shall not order the action dismissed over the defendant’s objection unless the counterclaim can remain, pending for independent adjudication by tbe court. Unless otherwise specified in the order, a dismissal by order of court under this paragraph is without prejudice.” | [
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Fitzgerald, P. J.
This appeal arises from a verdict and judgment of no cause of action by plaintiff against defendant on a wrongful death action arising from the death of Michael Lloyd. Plaintiff alleged that decedent’s death resulted from his exposure to toxic spraying chemicals while employed by defendant and that such exposure was occasioned by defendant’s failure to instruct the decedent in the use and dangers inherent in such chemicals.
Decedent was employed by defendant as a fruit sprayer and was exposed to several toxic pesticides and fungicides. Defendant argued that decedent’s death was from “Goodpasture’s Syndrome” and was unrelated to exposure to the chemicals, and that decedent was properly instructed as to the use and necessary precautions in handling the chemicals.
Plaintiff’s first assignment of error is that plaintiff’s case was prejudiced by the trial court’s denial of a continuance so that plaintiff’s expert witness could complete additional experiments upon tissue samples taken from the deceased’s body. It is unnecessary to decide the question whether the denial of the continuance was an abuse of discretion on the part of the trial court, for the record clearly shows that no prejudice resulted from the denial. Plaintiff’s expert witness testified that he had completed all the tests necessary to make a diagnosis and that the additional tests were in the nature of pure research.
Plaintiff’s next assignment of error is that the trial court, by questions directed by the court to certain witnesses, indicated to the jury that the court had formed an opinion as to the outcome of the case, resulting in denial of a fair trial to plaintiff. A review of the trial record, and particularly those portions in which the court questioned witnesses, fails to convince this Court that the trial court did not remain impartial. We also note that the court cautioned the jury during its instructions that the court had no right to indicate an opinion and that the jury should bring in whatever verdict they found was warranted by the evidence.
The most complex assignment of error relates to the testimony of two jury members, peremptorily excused and then permitted to testify as expert witnesses.
The question is specifically stated thus:
“Was it prejudicial error for the court to allow two jury members, who had been seated and excused, to testify in behalf of defendant over objection, as expert witnesses, giving their opinions as to the proper method of pesticide spraying and their opinion as to the physiological consequences of using certain sprays, and as to the standard of practice in the industry where no proper foundation has been laid.”
It is obvious that the question actually presents a bifurcated problem:
1) Was it error to allow excused jurors to testify at all and,
2) If proper, were they qualified as experts'?
The second question gives us little pause. The determination of qualifications of expert witnesses is a matter for the discretion of the trial court and appellate courts will not interfere unless there is a clear showing of abuse of discretion. Accetola v. Hood (1967), 7 Mich App 83. No abuse of discretion appears in allowing these witnesses, who had long experience in fruit spraying, to testify to accepted methods of spraying and the precautions observed in spraying. A more complex issue arises in allowing former jury members, Oakley Lardie and Dale Christopher, to testify at all.
On the surface, the practice does not appear exemplary, though no Michigan cases rule specifically on this point. To resolve the issue requires a study of the jury make-up for the term of court where the instant case was heard.
Dehors the record is a letter from the County Clerk for Grand Traverse County, obtained by request of this Court and approved by counsel, delineating the situation.
“We have cheeked the court docket for the September, 1969 term of court and more specifically the jurors who served during that term. There were three cases, the first case was heard September 15 and 16, 1969. That trial resulted in an out of court settlement the second day, and Mr. Oakley Lardie was one of the jurors seated. The jury did not deliberate.
“On December 2, 1969 a jury trial was held, which resulted in an out of court settlement on the first day. At that trial Dale Christopher was seated as a juror. The jury did not deliberate.
“The third and final case which this jury heard was the Blue case held December 15, 16, 17, and 18, 1969. This was the only case of the three in which the jury actually deliberated. It was also the last case heard by this jury panel. Mr. Lardie and Mr. Christopher were called to the jury box but both were excused by pre-emptory [sic] challenge.
“Very truly yours,
/s/ Anita Kucera
Clerk of Circuit Court”
The two witnesses had been excused and had never sat together on a jury in this term of court. In effect, they were not jurors, but excused jurors, though they were certainly acquainted with the jury through their prior service.
6 Wigmore on Evidence, 3d ed, § 1910, pp 593-595, resolves the issue before this Court and approves the practice of calling an excused juror having any relevant knowledge as a witness.
The case of Commonwealth v. Sutton (1952), 171 Pa Super 105 (90 A2d 264), though a criminal case where jury safeguards have traditionally met or exceeded civil cases, states the general rule today:
“The jury in this case was selected on voir dire and a Mrs. Madeline Ewing was challenged by the Commonwealth. Mrs. Ewing was later called by the Commonwealth to testify as to the bad reputation of the appellant and he contends that the court below erred in permitting' this witness to testify. This contention is ruled against him by Commonwealth v. Sullivan, 91 Pa Super 544, in which we stated at page 549: ‘Jurors are not incompetent as witnesses in either criminal or civil issues. They have no interest that disqualifies them and there is no rule of public policy that excludes them. Knowledge of the facts of a case does not disqualify a juror: Howser v. Commonwealth, 51 Pa 332; State v. McDonald, 73 NC 346.’ ”
We can only conclude from an extensive review of authority that no prejudice resulted from the events that transpired in the case on review. Though the practice of allowing jurors to testify adds a dimension to the trial of a lawsuit that at first blush appears incompatible with standard practice, we can find no prejudice resulting and, indeed, the practice is uniformly condoned.
Plaintiff’s last assignment of error regards the trial court’s instructions to the jury. Since counsel failed to object to the instructions as given, the question of instruction is not preserved for review by this Court. GrCR 1963, 516.2. We would also note that while plaintiff urges that the trial court failed to give certain requested instructions, the record on appeal is devoid of any reference to any requested instructions. Since this Court cannot pass upon a silent record, we would caution counsel of the necessity of making sure that any requests to charge are made part of the trial court record.
Affirmed. Costs to appellees.
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Fitzgerald, J.
This is an appeal from the Court of Claims after a judgment for the claimant in the amount of $14,700, representing supplemental purses paid by the claimant to winners of exclusive Michigan-bred races in July 1966.
MCLA § 431.31 et seq. (Stat Ann 1970 Cum Supp § 18.966[1] et seq.) provides for state supplements to be paid to thoroughbred racing associations to supplement the purses for races exclusively for Michigan-bred horses. The funds come from the state’s share of horse-racing income. Provision is also made for breeders’ awards.
Pursuant to this legislation, 1954 AACS, R 285-.807.1 was adopted and published. Generally, this regulation sets forth eligible races, provides for allocation of funds for the races as designated by the Director of Agriculture, and reimbursement by the director of any eligible race association that pays out total purses (including supplements) to the owners of winning horses.
It appears that the claimant paid out the following supplements in July 1966 and then sought reimbursement from the state.
1966 Sixth Book July 1, 1966 $ 600
“ “ “ July 5, 1966 1,200 $ 1,800
U Seventh Book July 6, 1966 1,400
U a July 7, 1966 U 1,000
ÍÍ a July 8, 1966 « 1,100
u July 9, 1966 U 2,000
u July 11, 1966 u 1,100
ÍÍ July 12, 1966 ÍÍ 900
« July 13, 1966 u 800
u July 14, 1966 a 800
u July 15, 1966 a 1,000
u July 16, 1966 a 2,000
u July 18, 1966 u 800 12,900
$14,700
The issue in this case is whether the state, through the Director of Agriculture, approved the supplements, thus entitling claimant to he reimbursed.
On June 1, 1966, defendant sent a letter to claimant setting forth certain steps that were necessary to get approval of supplemental payment schedules. However, as the trial court found, it does not appear that defendant used the correct procedure required by MCLA § 24.74 (Stat Ann 1969 Rev § 3.560[10]), to make these rules effective. Specifically, it does not appear that the proposed requirements were published in the Administrative Code so as to make them effective. Thus, the question is really whether or not the defendant approved the supplemental payments to claimant under 1954 AAOS, R 285.807-.2B, which provides:
“The allocation of funds for said races and the dates and track whereat said races are to be run shall be designated by the director of agriculture with the advice of the Michigan racing commissioner, representatives of the licensed thoroughbred racing associations and the Michigan thoroughbred breeders’ association.”
The trial court found that the defendant did, in fact, approve the supplements paid out by claimant and thus must reimburse claimant for the contested amount.
Two of the races in question (July 1 and July 5, 1966) were in the sixth condition book (race program) and the rest of the races were in the seventh condition book. To avoid confusion, each condition book will be dealt with separately in this opinion.
As to the two races in the sixth condition book, defendant contends that the supplemental payments in these two races were never approved; thus, claimant cannot seek reimbursements for the $1,800 paid.
On June 24,1966, claimant sent a letter to defendant, which defendant received on June 27,1966, concerning the supplemental purses to be paid during the sixth condition book. This included the races run on July 1 and 5, 1966, which are at issue here. This letter listed the supplemental purses to be paid on July 1,1966, as $2,100 and the supplemental purse on July 5,1966, as $2,500.
On June 30, 1966, defendant wrote to claimant concerning these races and stated the following:
“I am approving this schedule as per agreement reached and contingent upon available funds to supply these purses.”
It would appear that these amounts were thus approved by defendant. However, on June 30,1966, claimant sent a corrected list of supplemental purses for the races to be run on July 1, 1966, and July 5, 1966. This revised list lowered the supplemental purses to be paid on the July 1, 1966, race (from $2,100 to $600) and also lowered the supplemental purse to be paid on the July 5, 1966, race (from $2,500 to $1,200).
The next communication concerning these two races occurred on July 6, 1966, in which claimant wrote to defendant and listed the races that had been run in the sixth condition book, including the races on July 1 and July 5, 1966.
On July 13, 1966, defendant then wrote to claimant and stated:
“Thank you for submitting the list of Michigan-bred races and the appropriate winning horses (concerning the sixth condition book).”
The record does not indicate an approval by the defendant of the reduction in the supplements of July 1 and July 5, 1966, although a higher supplement was earlier approved.
The Court of Claims ruled that defendant “acknowledged said revised list of supplements without dissent” in the July 13,1966, letter. This Court cannot overrule the findings of the Court of Claims unless we deem them to be clearly erroneous, GrCR 1963, 517.1. The record does not indicate, nor do the arguments of defendant persuade us, that the findings of the Court of Claims concerning the races in the sixth condition book were clearly erroneous.
Concerning the races held in the seventh condition book, defendant argues that the supplements were not approved because claimant did not follow the proper procedure as set down by defendant in his letter of June 1, 1966.
Claimant counters that these supplements were approved by letter from defendant dated July 7, 1966, and that the requirements promulgated by defendant in his June 1,1966, letter were of no force and effect because he did not comply with MOLA § 24.74 (Stat Ann 1969 Rev § 3.560[10]), which requires publication. The amount in issue here is $12,900.
On June 30, 1966, claimant wrote to defendant and listed the races and supplements to be run and paid from July 6 through July 17,1966, the seventh condition book.
On July 7,1966, defendant responded to claimant’s letter of June 30,1966, and the interpretation of this letter is the crux of this lawsuit. The text of the letter is:
“Mr. Richard A. Connell, President
Hazel Park Racing Association, Inc.
1650 East 10 Mile Rd.
Hazel Park, Michigan
“Dear Mr. Connell:
“Thank you for your letter of June 29, which pre sented statistics relative to the program at Hazel Park.
“I have reviewed the conditions, purses and supplements pertaining to the seventh condition book and it appears to be satisfactory. I am returning it to you for the appropriate signatures as per my letter of June 1, 1966, regarding the procedure for submitting condition books for approval.
“Sincerely,
B. Dale Ball, Director
“BDB :REM:AP
Enclosures”
The Court of Claims found this letter to constitute “full and unequivocal approval” of the races and supplements listed by claimants in its June 30 letter.
At first blush, it is difficult to see how this letter could constitute “full and unequivocal approval” of the race supplements, especially in light of the last sentence, which says:
“I am returning it to you for the appropriate signatures as per my letter of June 1, 1966, regarding the procedure for submitting condition books for approval.”
However, as the Court of Claims noted, it does not appear that the procedures set up by the defendant in the letter of June 1, 1966, were of any force or effect because they were not published as required by MCLA § 24.74 (Stat Ann 1969 Rev § 3.560 [10]). If these procedures were not in effect, the question then becomes, did the defendant give approval in his letter of July 7, 1966?
Testimony given below appears to shed some light on the matter. During the proceedings on December 11, 1969, Ralph E. Morrow, the deputy director of a service bureau of the Michigan Department of Agriculture, who assists in the state’s supplemental program, testified in the following manner regarding the meaning of the letter.
“It appeared that the conditions and the purses, and the supplements pertaining to the seventh booh appears to he satisfactory.” (Emphasis supplied.)
While this was qualified by the later statement in the letter that it was being returned for appropriate signatures, the required procedures were of no force and effect because they were not published as required by MCLA § 24.74 (Stat Ann 1969 Rev § 3.560[10]). Therefore, if the procedure was of no force and effect, a reasonable interpretation of the letter is that it is, in fact, approval on the part of the director. This interpretation by the Court of Claims is not clearly erroneous so as to require our reversal. GrCR 1963, 517.1.
Affirmed. No costs.
All concurred. | [
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Holbrook, J.
The facts in this case show that the Village of Marcellus, at a meeting of its village council held August 26,1969, approved by resolution a contract for the construction, planning, and financ ing of a sewage disposal system for the Village of Marcellas.
The Marcellas Village Coancil approved this contract by a ananimoas vote.
On September 9, 1969, the Coanty of Cass passed a resolation by the Board of Sapervisors of Cass Coanty, Michigan, to approve the establishment of a sanitary sewage system in the Village of Marcellas to be known as Cass Coanty Sanitary Sewage Disposal System No 1 (Village of Marcellas). Farther, the contract, exhibit “A”, for the constraction, financing, operation, and maintenance of the system, negotiated by and between the Village of Marcellas and the Cass Coanty Board of Pablic Works, acting for the coanty, was approved by a ananimoas vote of the sapervisors. At the same meeting, a resolation was passed providing for the issaance of bonds as set oat in the contract.
The contract, exhibit “A”, was signed by officials for the board of pablic works and the Village of Marcellas.
On Janaary 13, 1970, the board of sapervisors amended the bond resolation to offer the bonds at a maximnm interest rate of eight per cent per annum. On April 7,1970, a resolation to amend the contract of September 9,1969, was presented to the Marcellas Village Coancil. The amendments were to sections 7, 9, and 10 of the first contract and are set forth in the seven-page contract of April 14, 1970 (exhibit “B”), which also provided that, “[t]his contract shall become effective apon approval by the Coancil of the Village.”
The resolation to amend was pat before the coancil consisting of six trastees elect. All members of the coancil were present, together with the village president. The vote on the resolation to adopt the amended contract resulted in three trustees voting “yea” and three trustees voting “nay”. The village president proceeded to vote to break the tie, voted “yea”, and declared the resolution passed.
On April 14, 1970, the Cass County Board of Supervisors approved the amended contract, exhibit “B”, previously passed upon by the Marcellus Village Council.
On April 15,1970, Frances M. McCarthy, plaintiff, and taxpayer in the Village of Marcellus, filed a civil action in the Circuit Court for the County of Cass against the Village of Marcellus, Cass County Board of Supervisors, and Cass County Board of Public Works. The complaint set out the basic facts of the contracts as hereinbefore referred to as exhibit “A” and “B”. Further, the complaint stated that the amended contract was not passed by a two-thirds vote of the Marcellus village council as required by statute. The complaint alleged that any action under the amended contract would be invalid and contrary to the laws of the State of Michigan and to the detriment of the plaintiff. Plaintiff prayed that the amended contract be declared invalid and null and void.
The defendants, by their attorneys, answered plaintiff’s complaint. Defendant Village of Marcellus filed on the same date a “Motion For Summary Judgment Or, In The Alternative, For Accelerated Judgment”. The motion supported by an affidavit declared: plaintiff failed to state a claim, no genuine issue as to any material fact, and plaintiff lacks legal capacity to sue.
On May 4, 1970, plaintiff filed “Objections To Motion” declaring: the village by operating under the amended contract would subject plaintiff to taxes and assessments levied for payment since plaintiff is a resident and taxpayer of the village. Further, the material issue is that the Village of Marcellus seeks to operate under an invalid contract, and the contract affects plaintiff’s property and financially.
Defendant, Village of Marcellus, argued that: the amended contract provided for a reduction in cost, that reduction does not require a two-thirds vote within MCLA § 65.5 (Stat Ann 1961 Rev § 5.1268), and that if the requirement of two-thirds remains, the case of City of Croswell v. Helm (1938), 284 Mich 404, created an exception when all trustees elect are present and voting.
Plaintiff, Frances M. McCarthy, argued that: the amended contract was a taxing act, that under MCLA §65.5 (Stat Ann 1961 Rev § 5.1268) it required a two-thirds vote, four “yeas” out of seven voting is not two-thirds, and that Groswell is not an exception under these facts.
The Court stated in its opinion:
“Gentlemen, let me say at the outset here that insofar as the issue that has been raised as to whether or not the plaintiff, Frances McCarthy, has standing in this court to question the validity of this contract, I rule that she does. She has standing in this court.
“The issue is whether or not the contract that was presumedly approved by the village counsel [sic] is a valid contract because admittedly everybody admits that when the question came up, three voted ‘aye’ and three voted ‘nay’, and then the village president stepped in and cast a vote that was counted as ‘aye’, and it made four votes in favor and three against. That is the issue that we have here.
“I also for the purpose of this decision and ruling on the motion that has been presented here, I hold that on the basis of the exhibits, the contracts, the pleadings, that this particular contract that was up for decision and to be voted upon required a two-thirds vote of the trustees elect. It comes within the meaning of § 65.5.
“Now, as I read Croswell v. Helm, the Supreme Court has said that the Legislature in its wisdom enacted a provision there, and it says: ‘He shall have no vote upon any question except in case of tie’. To provide for a deadlock and to provide an exception which says you must have two-thirds majority of the trustees elect, the Supreme Court has considered that carefully, and says we have to read § 64.1 in conjunction with § 65.5, and reading the thing as a whole it makes sense to us. This is what the Supreme Court has said that where we have a six-member body, we have a method of getting away from a stalemate.”
The court properly held that the particular resolution required a two-thirds vote of the trustees elect and comes within the meaning of MCLA § 65.5 (Stat Ann 1961 Rev § 5.1268). However, the trial court further found that when reading MCLA § 64.1 (Stat Ann 1961 Rev § 5.1243) and City of Croswell v. Helm, supra, together, that this constituted an exception to the statute.
The court entered a summary judgment against plaintiff and in favor of defendant, Village of Marcellus, and all defendants pursuant to GCR 1963, 117.2(3).
Plaintiff appeals and raises three issues which we restate as one issue as follows:
Was the resolution in question effectively adopted by the council of the Village of Marcellus consisting of six trustees when their votes were three “ayes”, three “nays”, and one “aye” by the president of the village, where the resolution had to do with the building of a sewer system in the village and the imposing of a tax to pay for the long-term bonds to be issued thereunder?
The learned trial judge in determining the motion for summary judgment or accelerated judgment relied on the case of City of Croswell v. Helm, supra. In that case, the city, desiring to resume the operation of an electrical power plant, authorized by proper ordinance the advertising for bids for the furnishing of machinery and equipment to the city. This ordinance provided that the entire cost of the equipment should he paid out of the revenues to he derived from the operation of the plant. When the lowest bidder was determined, an ordinance was adopted directing the mayor and city clerk to enter into a contract with the bidder upon its giving a performance bond, “subject to the approval of said contract and sáid bond” by the council. When the action upon the contract and bond was presented for approval, four of the six aldermen were present. Two voted for approval and two voted against approval. The mayor then voted “aye” and declared the agreement approved. The trial court ruled that the action of the city council was ineffective and the Supreme Court affirmed ruling that CL 1929, § 1908 (Stat Ann § 5.1703), required the vote of a majority of all the aldermen elected to office “except as herein otherwise provided”. Inasmuch as there were six elected aldermen, the vote of two aldermen for the proposal and two against could not be passed by a tie-breaking vote by the mayor in favor of the proposal. The Court said on p 408:
“There was not a concurring affirmative vote on this resolution of ‘a majority of all the aldermen elected to office.’ 1 Comp Laws 1929, § 1908. A majority of six cannot be less than four; and unless, therefore, there is some provision in the statute for effective action by less than such a majority, the resolution was not legally adopted.”
The Court in Croswell referred to the case of Bishop v. Lambert (1897), 114 Mich 110, which is helpful because it can be applied to the issue raised in the instant case. There it was determined that the action taken did not provide for the imposing of a tax, but was for the purpose of paying for the salary of firemen from funds already raised. All six aider-men elect were present when the action was taken. Three voted “aye” and three voted “nay” and the mayor voted “aye” and declared the action passed. The Court stated on pp 113, 114 as follows:
“In the case of Tennant v. Crocker, 85 Mich 337, it was held that a resolution authorizing the purchase of land for streets by a committee was the creation of an obligation which, not having been provided for in the annual appropriation bill, could only be discharged through taxation, and that all contracts incurring liability for the payment of money constitute the basis for which taxes may be levied, and are in effect an appropriation of so much money to be raised by tax for that purpose. It was said, further, that—
“ Tt is just as essential that every resolution or ordinance incurring a liability which must be met by taxation should be passed by a two-thirds vote of all the aldermen elect as it is that the appropriation bill should be passed by such vote.’ ”
The Court was able to approve the vote of three for and three against and an affirmative vote in favor by the mayor because it determined that the action did not provide for the amount to be paid to the firemen to be raised by taxation.
Now it is true that the provisions pertaining to passing of ordinances and resolutions hy a fourth class city and by a village are similar. However, in both the Groswell and Bishop cases, the action taken did not require a two-thirds vote of the aider-men elected to office, but only required a majority vote.
In the instant case, the contract in question required the village to impose taxes to pay for the bonds to be issued. The applicable statute is MCLA § 65.5 (Stat Ann 1961 Rev § 5.1268) which provides:
“But no office shall be created or abolished nor any tax or assessment be imposed; street, alley or public ground be vacated, real estate or any interest therein purchased, leased, sold, or disposed of, or any public improvement ordered, unless by a concurring vote of 2/3 of all the trustees elect, which vote shall be taken by yeas and nays, and entered upon the journal; no money shall be appropriated except by ordinance or resolution of the council, nor shall any such ordinance be passed, nor any resolution appropriating money be adopted, except by a concurring yea and nay vote of 2/3 of all the trustees elect.” (Emphasis supplied.)
The village council is permitted to pass ordinances for various purposes by a majority vote of the council, as provided in MCLA § 66.1 (Stat Ann 1961 Rev § 5.1271). In these instances, MCLA §64.1 (Stat Ann 1961 Rev § 5.1243) which states in part as follows, is applicable:
“The president shall be the chief executive officer of the village. He shall preside at the meetings of the council. He shall he deemed a member of the council, but he shall have no right to vote upon any question except in case of a tie, in which case he shall give the deciding vote.”
Had the ordinance or resolution in question been one to accomplish a purpose requiring only a majority vote as provided in MCLA § 66.1 (Stat Ann 1961 Rev § 5.1271), the president could have legally cast the deciding vote as provided in MCLA § 64.1 (Stat Ann 1961 Rev § 5.1243). However, in the instant case, the action had do to with imposing a tax which is governed by MCLA § 65.5 (Stat Ann 1961 Rev § 5.1268), which requires a two-thirds vote of all the trustees elect in order to be effective. The statute, MCLA §65.5 (Stat Ann 1961 Rev § 5.1268), requires the subject resolution to be passed by a concurring vote of two-thirds of all the trustees elect which would be four of the six trustees. Only three of the trustees voted in favor and therefore the requirements of the statute were not met. MCLA § 64.1 (Stat Ann 1961 Rev § 5.1243) does not apply to the facts in this case. Also, see Tennant v. Crocker, supra.
In ruling on the issue raised in this appeal, we have accepted two general rules of law as follows:
(1) The grant of any power to tax, made by the state to municipal corporations, will be, according to the rule accepted by virtually all the authorities, construed with strictness. 16 McQuillin, Municipal Corporations (3d ed), § 44.13, p 46; Remus v. City of Grand Rapids (1936), 274 Mich 577; Wilcox v. Board of Commissioners of Sinking Fund of City of Detroit (1933), 262 Mich 699; Whitney v. The Common Council of the Village of Hudson (1888), 69 Mich 189.
(2) An ordinance or resolution cannot be amended, repealed, or suspended by another act by a coun cil of less dignity than the ordinance or resolution itself. 6 McQuillin, Municipal Corporations, 1969 Rev, § 21.04, p 199; City of Saginaw v. Consumers’ Power Co. (1921), 213 Mich 460; Whitney v. The Common Council of the Village of Hudson, supra.
The order of the trial court granting summary judgment in favor of the defendants is set aside and the matter remanded to the trial court for further proceedings not inconsistent with this opinion.
All concurred.
MCLA §65.5 (Stat Ann 1961 Rev § 5.1268).
MOLA §88.7 (Stat Ann 1949 Rev § 5.1703).
“The style of all ordinances shall be: 'The village of * * * ordains.’ All ordinances except as herein otherwise provided shall require, for their passage, the concurrence of a majority of the council. No ordinance imposing a penalty shall take effect in less than 20 days after its passage.” (Emphasis supplied.) | [
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J. H. Gillis, P. J.
Defendant, Willie J. Harper,
was charged with first-degree murder* and, when brought to trial, tendered his counseled plea of guilty to second-degree murder. The court conducted an examination as to the degree of murder pursuant to MCLA § 750.318 (Stat Ann 1954 Rev § 28.550), and determined that at most defendant could be guilty of manslaughter. Defendant then offered a plea of guilty to manslaughter which the court accepted.
A month later, without defendant having been sentenced, the court set aside the conviction, ruling that the examination under the statute was improper since defendant had confessed and pleaded guilty to a specific degree of murder and the court did not have the authority to reduce the charge on its own motion. See People v. Carl (1968), 11 Mich App 226, 228. The case was reassigned to the same judge and defendant offered a plea of guilty to second-degree murder which was then accepted. Following sentencing, defendant Harper was granted leave to file a delayed appeal.
On appeal, defendant Harper, in propria persona, attacks his conviction and sentence for second-degree murder on the basis that he was twice put in jeopardy for different degrees of the same crime. We are told that his guilty plea to the lesser included offense of manslaughter operated as an acquittal of the greater offenses. Cf. Mullreed v. Kropp (CA 6, 1970), 425 F2d 1095. Thereafter, Harper contends he could not be convicted, following the trial court’s vacation of the manslaughter plea, of the greater offense of second-degree murder.
The people contend that defendant Harper waived the asserted jeopardy bar by his failure to raise the question at the second plea proceeding.
This case demonstrates once again that the guilty plea and the jeopardy clause prove litigious — as well as strange — bedfellows.
We view with caution the oft-repeated claim, raised here by defendant Harper and, unfortunately, accepted by some courts, that a guilty plea to a lesser, or related, offense necessarily implies defendant’s innocence of the greater offense whenever at some subsequent proceeding defendant invokes an alleged jeopardy bar. As this case indicates, all too frequently appellate courts are invited to adjudicate such claims in a mechanistic fashion; a reviewing court is asked to apply the jeopardy bar without regard to the milieu in which the jeopardy claim is asserted. The Tenth Circuit Court of Appeals put the point well when it recently observed:
“It is true that a guilty plea is as final as a jury verdict but the double jeopardy implications re verberating from a guilty plea and a jury verdict are not identical.” Ward v. Page (CA 10, 1970), 424 F2d 491, 493. (Emphasis supplied.)
The jeopardy reverberations said by defendant Harper to follow as necessarily incident to his plea of guilty to manslaughter in this case ring in our judicial ears in precisely the opposite direction. With all deference to Harper’s in propria persona efforts, we affirm defendant’s conviction of second-degree murder entered on his twice tendered, finally accepted, guilty plea.
I
After careful study of the record, we are satisfied that Harper, on learned advice of counsel, deliberately chose to forego any alleged violation of his right not to be twice placed in jeopardy for the same offense. By his counseled plea, defendant avoided the risk of what, on this record, appears to be the substantial certainty of a conviction after trial of murder in the first degree. *But for the prosecutor’s agreement to allow defendant “in the best interests of justice” to enter a plea to the lesser-included offense of second-degree murder, Harper could have been required to run the gantlet of what, almost assuredly, would have resulted in a conviction of first-degree murder. What was done here in no wise conflicts with the underlying rationale of the jeop ardy clause: “[T]o make rare indeed the occasions when the citizen can for the same offense be required to run the gantlet twice.” Gori v. United States (1961), 367 US 364, 373 (81 S Ct 1523, 1528, 6 L Ed 2d 901, 907). (Dissenting opinion by Mr. Justice Douglas.) On the contrary, by virtue of what fairly appears as a negotiated plea Harper avoided running the gantlet even once. Nothing in the jeopardy clause, state or Federal, requires that we set aside Harper’s plea on jeopardy objections first raised by Harper, in propria persona, at this late appellate stage.
A fair reading of the record in this case indicates that, as a matter of strategy, defendant on advice of counsel opted to bargain anew for the probable quid pro quo — a sentence less than the mandatory term of life imprisonment — -notwithstanding putative objections of double jeopardy at trial below. The record contains a memorandum of law asserting an alleged jeopardy bar to any proceeding other than sentencing of the defendant for manslaughter. However, this objection was never pressed at trial; instead, the trial judge noted on the record:
“Upon a re-examination of the law, the court was satisfied that it was wrong; that where there is a specific degree of homicide charge and a plea is intelligently and voluntarily offered to that degree of homicide there is no authority in the court’s — or obligation on the part of the court to take testimony for the purpose of fixing the degree of homicide. Accordingly, the court decided to put everything back in the same status that it was before the grievous error was made and so the offer of a plea by the defendant was set aside and the matter was sent back to the Presiding Judge for reassignment to another judge for trial, or offer of a plea, as the ease may be.
“The Presiding Judge saw fit to send it hack to me. I indicated that I would still he reluctant to proceed with the matter unless there was an agreement on the part of the prosecution, as well as the defense, that I should retain jurisdiction and that agreement was placed on the record and today was set as the date for trial.
“The present status of the case, therefore, is that you are right where you were when you first came into the court room June 8, 1967.
“We can take it from there.
“Mr. Henry [defense counsel]: May it please the court, my name is Milton Henry. I appear on behalf of the respondent, Willie James Harper, at this time. We would like to enter a plea, if the court would accept the same, to the crime of murder in the second degree.
“I have discussed the matter fully with Mr. Harper. I have had occasion to go over the evidence with him and he advises me that in view of all that had happened and in view of the actual circumstances he still wishes to enter a plea to the charge of murder in the second degree.” (Emphasis supplied.)
Since the trial court was without authority to accept defendant’s manslaughter plea on its own motion, such acceptance was a nullity; defendant’s manslaughter conviction was void; and the trial judge properly set the conviction aside. What was said in People v. Garcia (1969), 19 Mich App 465, 467, applies here as well:
“When the trial court vacated defendant’s plea, the posture of the case was as before the rearraignment, a plea of not guilty to an open charge of murder.”
Contrary to defendant’s expressly abandoned position at trial — an abandonment grounded upon considerations of strategy — Harper could lawfully have been retried for murder in tbe first degree. Cf. People v. Garcia, supra; People v. Burt (1970), 29 Mich App 275.
Tbe trial judge made tbe nature of tbe strategem of which we write perfectly clear when be noted at Harper’s sentencing:
“Counsel, Mr. Henry, has done an exceptional job representing you, trying to make tbe best of what some other lawyer would regard as a hopeless situation. You are really fortunate in that the charge against you is murder in the second degree rather than murder in the first degree. If it were murder in the first degree there would be no alternative but to sentence you away for the rest of your life. Murder in the second degree is punishable in Michigan by any number of years up to life.”
Harper was sentenced to a period of incarceration for no more than 20 years.
To recapitulate: By his plea, Harper avoided the risk of a mandatory life sentence; he chose rather to opt for the probability, later realized, of a lesser term of years. Since defendant as a matter of strategy decided at trial to abandon what he now so vigorously voices as his jeopardy objection, we hold on appeal that defendant is bound by his bargain — a bargain freely and voluntarily entered. Again, nothing in the Constitutions, state or Federal, requires a contrary conclusion.
For authority, we need go no further than to note that it is well established that a deliberate choice of strategy waives the jeopardy defense. See Henry v. Mississippi (1965), 379 US 443, 450, 451 (85 S Ct 564, 569; 13 L Ed 2d 408, 414, 415). Such a choice is obvious in this case. The record makes it abundantly clear that, while a jeopardy defense was putatively considered at trial, it was later wholly abandoned. There is no need for this Court to resurrect the alleged jeopardy bar where the defendant — to complete the metaphor — deliberately chose to bury the defense at trial. Compare: People v. Bower (1966), 3 Mich App 585; People v. McPherson (1970), 21 Mich App 385.
II
Although we might rest solely on the ground that defendant Harper waived any claim to double jeopardy, we think it appropriate to add a final observation.
It is simply time for some clear thinking regarding the recently obfuscated nexus between the guilty plea and the jeopardy clause. Those familiar with jeopardy jurisprudence will undoubtedly recognize our reference to the recent opinion of the Sixth Circuit Court of Appeals, Mullreed v. Kropp, supra.
We hereby express total disagreement with the Mullreed opinion. It ignores the importance of the plea milieu. Compare Ward v. Page, supra. We agree, rather, with every contention raised on behalf of the State of Michigan in Mullreed and think the Sixth Circuit’s opinion should not and need not be followed in Michigan. This is especially true with regard to Judge Phillips’ characterization of Michigan law appearing at pp 1100, 1102:
“We think the conviction and sentence necessarily show that the trial court found an evidentiary concurrence of the elements required for the conviction, otherwise the conviction on the guilty plea would not have been lawful.
* # *
“It is apparent that the conviction on the lesser offense requires an affirmative finding that the actor was not armed with a dangerous weapon. This determination necessarily is inconsistent with a concurrent or subsequent finding that he committed robbery while armed.”
Such is not the State of Michigan’s law. For complete explication, see People v. Sylvester Johnson (1970), 25 Mich App 258.
Defendant Harper’s conviction upon his plea of guilty to the reduced charge of second-degree murder is affirmed.
MCLA § 750.316 (Stat Ann 1954 Rev § 28.548).
MCLA § 750.317 (Stat Ann 1954 Rev § 28.549).
MCLA § 750.321 (Stat Ann 1954 Rev § 28.553). This determination -vvas made on the sole basis of defendant’s rather elusive, forgetful, and exculpatory description of the fatal event.
This conclusion is based upon a complete review of the preliminary examination in this case, see People v. Bradshaw (1970), 28 Mich App 354, as well as a review of the several plea proceedings. The examination was on a charge of first-degree murder. At its conclusion defendant was bound over for trial on a charge of first-degree murder. The testimony for the people at the examination was quite conclusive. There were several eyewitnesses to the later charged offense.
Such an expression, entered on the record by the prosecutor in this case, indicates a negotiated plea. For a discussion, see LaFave, “The Prosecutor’s Discretion in the United States,” 18 Am Jur of Comp L 532, 540 (1970).
Defendant makes no claim that Ms plea was involuntary. Furthermore, it is appropriate on this point to quote the recent pronouncement of the United States Supreme Court in Brady v. United States (1970) 397 US 742 (90 S Ct 1463, 1470; 25 L Ed 2d 747, 758, 759): “We decline to hold, however, that a guilty plea is compelled and invalid under the Fifth Amendment whenever motivated by the defendant’s desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged.
“[W]e cannot hold that it is unconstitutional for the State to • extend a benefit to a defendant who in turn extends a substantial benefit to the State and who demonstrates by his plea that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind wMch affords hope for success in re habilitation over a shorter period of time than might otherwise be necessary.
“A contrary holding would require the States and Federal Government to forbid guilty pleas altogether, to provide a single invariable penalty for each crime defined by the statutes, or to place the sentencing function in a separate authority having no knowledge of the manner in which the conviction in each case was obtained. In any event, it would be necessary to forbid prosecutors and judges to aeeept guilty pleas to selected counts, to lesser included offenses, or to reduced charges. The Fifth Amendment does not reach so far.” | [
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Per Curiam.
Defendants own a farm in Ingham County consisting of 145 acres. It formerly belonged to Mr. Frederick’s mother, now deceased. When she owned the farm, the State Highway Department took a portion of it to improve US 127. .As a result of this taking, seven acres east of the highway containing the farm buildings was cut off from the rest of the farm. To provide access to the west part of the farm, the highway department granted the owner a 50-foot right-of-way across US 127 and constructed a service road along and adjacent to the west side of US 127.
In 1965, the highway department decided to convert US 127 into a limited-access highway. To do so, it commenced proceedings under MCLA § 213.171 et seq. (Stat Ann 1954 Rev § 8.171 et seq.) to close the 50-foot right-of-way and take 15/100 of an acre of land at the northwesterly corner of the seven-acre parcel. Because the proposed change made numerous properties, including the Frederick property west of the highway, inaccessible to a public road, the highway department built a service road abutting the Frederick property on the west and connecting with existing public roads.
In its determination of necessity, the highway department estimated the Frederick damages at $500.
At the trial the state, over objection, was permitted to claim and introduce testimony showing that the new service road benefited the west remainder, and the trial court instructed the commissioners concerning benefits. The state’s appraiser estimated the damages at $9000. The commissioners awarded the owners $13,500 after deducting benefits of $15,000.
Thereafter, after a hearing the trial court allowed the owners’ appraiser $1700 for his services although his charge to them was for $2400.
On appeal the owners claim that the trial court erred in permitting benefits to be assessed against the property and in reducing the appraiser’s charges by $700.
The substance of appellants’ claim concerning benefits is twofold. They claim, first, that because the state did not claim benefits in its estimate of damages nor in its petition for determination of damages, benefits could not be considered. Secondly, they claim that the new service road was not a benefit to the property within the meaning of MCLA § 213.188 (Stat Ann 1954 Rev § 8.189)
The state claims that the service road does in fact benefit the west remainder and whether termed general or special is irrelevant since Michigan law makes no distinction between the two types of benefits, as is done in some jurisdictions. See 13 ALR3d 1149. It is the position of the state that if the service road is not considered in determining value, the owners would be compensated as if the west remainder were landlocked.
An examination of the provisions of MCLA § 213-.171 et seq. (Stat Ann 1954 Rev § 8.171 et seq.) discloses a plan established by the legislature for the acquisition of land for highway purposes. When the state cannot acquire the necessary land by purchase, it must hold a hearing and make a written determination of necessity stating therein the damages which it considers should be paid as compensation. The statute calls this instrument the “determination”. It is to be filed with the State Highway Department, recorded in the office of the Register of Deeds and notice thereof must be given to the owner. If the owner does not accept the stated sum, the state is entitled to possession upon tender of the amount, unless the state has determined that benefits equal or exceed damages. Thereafter, the state must file a petition for the appraisal of damages.
From the foregoing it is apparent that when the state makes a determination of necessity it must set forth therein its estimate of damages to be paid as compensation for the taking of the property. Obviously, the amount so estimated is the amount to be paid the owner and if benefits are claimed the same must be stated and deducted in arriving at the amount to be “paid as compensation”. The state misreads the statute when it contends that benefits need be stated only when the same equal or exceed damages. This circumstance simply obviates tender.
Thus, we believe the trial court erred in allowing testimony to be offered concerning benefits. However, we do not believe the same was prejudicial to the owners requiring reversal. When the state estimated the owners’ damages at $500, it must have been apparent to them that this very nominal amount to be paid as compensation for taking 0.15 of an acre of land and for closing the right-of-way across US 127 was due in large measure to the new service road along their west remainder. We are not persuaded that the ruling of the trial judge denied appellants substantial justice, especially where the state at the trial revised its estimate of damages to $9000. GrCR 1963, 529.1.
No Michigan authority is cited in support of the owners’ construction of MCLA § 213.188, supra, concerning benefits. An examination of the authorities cited in 145 ALR 7, and in the current annotation in 13 ALR3d 1149, shows that there is no uniformity of opinion on the subject. Any attempt to reconcile the decisions is hopeless.
We believe that, instead of trying to decide when a benefit is “general” and when “special”, the better view, as expressed in some of the decisions, is that the term “benefits” when in issue is relevant only as it relates to the value of the remainder.
This is particularly true in Michigan where the measure of just compensation for a partial taking is the difference between the market value of the entire property before the taking and the market value of what remains after the taking; or, to put it another way, by the amount to which the value of the property from which the part is taken is diminished. State Highway Commissioner v. Sypher (1944), 310 Mich 93; In re Widening of Fulton Street (1929), 248 Mich 13. As stated in Township of Custer v. Dawson (1914), 178 Mich 367, 371:
“What the statute, under the Constitution, aims to do is to give the owner fair value for what is taken. In other words, to place him in such a position that the value of what he retains, plus the damages awarded, shall equal the value of his property before the highway was laid out.”
Benefits then, where authorized by statute, are are a factor to consider in determining the value of the remainder.
We have no difficulty here in concluding that the service road was a part of the highway project and materially affected the after value of the Frederick farm. It was properly considered by the court commissioners as a benefit within the meaning of MCLA § 213.188, supra.
Upon this record we are satisfied that the award before us meets the constitutional and statutory tests of “just compensation,” as construed by our Supreme Court, and, indeed, appellants do not claim otherwise.
MCLA §213.190 (Stat Ann 1954 Rev §8.191) gives the court authority to fix witness fees. No duty is imposed to approve the charges claimed. The appraiser-witness testified concerning his services after which the court fixed his fees at $1700. The allowance of costs is discretionary. State Highway Commissioner v. Goodman (1957), 349 Mich 311; Block v. Schmidt (1941), 296 Mich 610. Absent a clear showing of abuse of discretion the lower court’s determination must stand.
Affirmed.
“If any discontinued highway shall be upon lands through which a new highway shall be laid out, the same may be taken into consideration in estimating the damages sustained by the owner of such lands; and in like manner the benefits accruing to owners of lands by reason of laying-out, altering, widening or otherwise improving any highway or of changing the line thereof, shall be taken into consideration in determining the damages to be paid to any such owner as compensation for the taking of any of his property for any such highway purpose. In each such case, the board or commissioner having the matter in charge, or the court commissioners, as the case may be, shall state such fact and the amount deducted on account thereof in the determination, or report, as the case may be: Provided, however, That benefits shall not be taken into consideration as above stated in case there is any assessment levied on the abutting property by reason of the laying-out, altering, widening or otherwise improving said highway.” | [
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Bronson, J.
These cases involve the issue of what constitutes “incurable insanity” under the Workmen’s Compensation Act. MCLA § 412.10(b) (6) (Stat Ann 1968 Rev § 17.160[b] [6]).
The record discloses that both plaintiffs had been receiving compensation for 500 weeks as the result of personal injuries which arose out of and in the course of their employment. The controversy relates to the appeal board’s disposition of plaintiffs’ cases wherein both plaintiffs sought additional compensation for total and permanent incapacity on the grounds of incurable insanity. MCLA § 412.10(b) (6) (Stat Ann 1968 Rev § 17.160[b] [6] )
The referee found that both plaintiffs were incurably insane and thus entitled to compensation for total and permanent disability. On appeal to the Workmen’s Compensation Appeal Board, the referee’s decision as to plaintiff Sprute was affirmed, but the referee’s determination as to plaintiff Zeitz was reversed. From these dispositions the cases come to our Court on appeal.
Attempting to avoid confusion, we shall deal with the specifics of each case seriately. Before proceeding, we shall address ourselves to a matter common to both cases; that is, the meaning to be applied to the statutorily provided disability of “incurable insanity”. No reported case law has been found in this state interpreting the meaning of “incurable insanity” as set forth in MCLA § 412.10(b) (6). (Stat Ann 1968 Rev § 17.160 [b] [6]).
However, in Savior Borg v. Fisher Body Division of General Motors Corporation (1969), W.C.O. 1246, 1258, the following test for determining incurable insanity was established by the Workmen’s Compensation Appeal Board:
“* * * when an employee is possessed of sufficient mental capacity to enter into a contract of employment and does satisfactorily perform the work assigned and later suffers injury during the course of such employment, which affects or destroys his mental capacity to the degree that he is deranged and unfit to be employed because of the unreliability of his behavior with concomitant danger to himself and others, he is insane within the meaning of the term as used in the workmen’s compensation statute.”
It is this definition of incurable insanity, presently challenged in these appeals, on which the appeal board relied in deciding the two cases presently before this Court. Defendants argue that the Borg test is unduly broad. Defendants urge this Court to establish a test for “incurable insanity” similar to the tests which exist in other areas of the law (i. e., criminal law, civil commitment, testamentary capacity, etc.). Although plaintiff Sprute does not specifically challenge the Borg test, which was incorporated by the appeal board in deciding that Sprnte was incurably insane, plaintiff Zeitz argues that the Borg test of incurable insanity is too narrow and inconsistent with the legislative intent.
We cannot accept defendants’ contention that the test for insanity in the area of workmen’s compensation law should be similar to the test utilized in the areas of criminal law or probate law. We subscribe to the view expressed by the majority in Borg (p 1260) that incurable insanity “in this field of social legislation * * # is designed to compensate and not to incarcerate for the injury received”. The guiding principle, when attempting to provide a test for incurable insanity in the area of workmen’s compensation law, is that the test should encompass the situation where the employee’s permanent disabling condition is of such a nature that the employee is unfit to work.
With this principle in mind, we reject the test announced by the appeal board in Borg because we believe that the test is too restrictive. Although a portion of the test established in Borg is consistent with the above-mentioned principle, the phrase “because of the unreliability of his behavior with concomitant danger to himself and others” is too restrictive.
Having rejected the Borg test for incurable insanity as being too restrictive, we shall attempt to formulate a test to be used in future cases. In providing a test for incurable insanity under The Workmen’s Compensation Act, we believe that the best approach is to present a broad definition, consistent with the basic principle that the employee’s disabling condition makes him unfit for employment. Such a test would be designed to permit the fact finder to allow compensation only when the injury has affected the employee’s mental capacity to the extent that it precludes him from gainful employment.
Clearly, incurable insanity would include persons who are required to be institutionalized and removed from society as the result of their work-related injury. Contrariwise, we do not believe that the legislature would intend that an employee suffering from nervous indigestion should be considered incurably insane under MCLA § 412.10(b) (6) (Stat Ann 1968 Rev § 17.160 [b] [6]). As pointed out in the Borg opinion, it is the gray area between these extremes to which a workable test must address itself.
We believe the following test is broad enough to be consistent with the basic principle involved so as to guide the fact finders in making their determination. An employee is incurably insane under MCLA § 412.10(b) (6) (Stat Ann 1968 Rev §17-.160 [b] [6]) if the occupationally-related mental or emotional illness *6which 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
With this test in mind, we address ourselves to the cases presently before us. In Sprute, using the more restrictive test as announced in Borg, the finders of fact held that plaintiff was totally and permanently disabled because he was incurably insane under MCLA § 412.10(b) (6) (Stat Ann 1968 Eev § 17.160 [b] [6]). We sustain this finding of fact because it is supported by competent evidence and because the findings support a conclusion that Sprute would be incurably insane under the broader test announced in this opinion.
With respect to the appeal board’s decision as to plaintiff Zeitz, in which the board found plaintiff not to be incurably insane under the restrictive test established in Borg, we remand the case pursuant to MCLA § 413.12 (Stat Ann 1968 Eev § 17.186) for a redetermination on the issue of incurable insanity. On remand, the determination is to be made on the basis of the test for incurable insanity which has been set forth in this opinion.
All concurred.
Replaced by MCLA 1971 Cum Supp § 418.361(2) (f) (Stat Ann 1971 Cum Supp § 17.237[361] [2] [f]). The Legislature has subsequently enacted the Workmen’s Compensation Act of 1969. MCLA 1971 Cum Supp § 418.101 et seq. (Stat Ann 1971 Cum Supp § 17.237 [101] et seq.). Since the instant cases were decided under the prior act, and further noting no substantive changes in the sections relevant to these eases, the discussion will relate to the prior statute. Appropriate cross-references to the Workmen’s Compensation Act of 1969 may be found in the conversion tables located in the cumulative supplements.
If the parties are found to be incurably insane under MCLA § 412.10(b) (6) (Stat Ann 1968 Rev § 17.160[b] [6]), they may, subject to the limitations and requirements of MCLA § 412.9 (Stat Ann 1968 Rev § 17.159), be entitled to compensation for “the duration of such permanent and total disability”.
We do not mean to imply that the unreliability of an employee’s behavior and the concomitant danger to himself and others are not factors which may properly be considered in determining the issue of incurable insanity. But we do reject the premise that this situation presents the only basis for determining that the employee is unfit for work.
The employee’s incapacity must, of course, result from an injury arising out of and in the course of his employment. MCLA § 412.1 (Stat Ann 1968 Rev § 17.151).
We note that although a redetermination must be made at the end of 800 weeks for an employee previously found to be incurably insane, MCLA § 412.9 (Stat Ann 1968 Rev § 17.159), we are of the opinion that if the employer or carrier believed that the employee’s condition has changed prior to this time, they may request that the employee submit to an examination as provided by MCLA § 412.19 (Stat Ann 1968 Rev § 17.169).
MCLA § 413.12 (Stat Ann 1968 Bev § 17.186).
Although the Workmen’s Compensation Appeal Board found plaintiff to be incurably insane within the meaning of MCLA § 412.10(b)(6) (Stat Ann 1968 Bev § 17.160 [b] [6]), the appeal board limited the employer’s liability to a period not to exceed 800 weeks:
“Plaintiff’s injury occurred prior to the effective date of Act #195 of Public Acts of 1956, but after Act #175 of 1954 which listed incurable insanity as constituting permanent and total disability. The employer’s total liability for payment of weekly compensation is therefore limited in any event to a period not to exceed 800 weeks from the date of injury. (Act #198 of Public Acts of 1953 and Act #175 of 1954, which were in effect at the time of plaintiff’s injury)”.
While it is accurate to state, for the reasons given, that the employer’s liability shall not exceed 800 weeks, it does not mean that plaintiff Sprute would be unable to receive compensation for a longer period. Since plaintiff’s injury occurred on February 3, 1956, PA 1955, No 250 (effective June 25, 1955) would be applicable. PA 1955, No 250 changed PA 1954, No 175, which had limited compensation for total disability to 800 weeks maximum. Under PA 1955, No 250, although a conclusive presumption existed that 800 weeks was the maximum disability, at the expiration of this period a further determination is to be made “in accordance with the fact as the fact may be at that time”. If the employee remains incurably insane, payments are to be made from the Second Injury Fund “for the duration of such permanent and total disability according to the full rate provided in the schedule of benefits.” PA 1955, No 250. See MCLA § 412.9 (Stat Ann 1968 Bev § 17.159). | [
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Per Curiam.
This appeal arises out of a suit to compel the administratrix of the estate of Chi Yeh Han to pay the plaintiffs certain assets in her hands which represent wages due and owing to the deceased at the time of his death. From a judgment in favor of defendant, plaintiffs appeal.
Shortly after joining the faculty of Michigan Technological University, Chi Yeh Han executed a form entitled “Beneficiary Designation”, which directed the university to pay all compensation due him at the time of his death to his son, Power Li Han. Chi Yeh Han died on February 19, 1967, and his will, dated April 18, 1966, was admitted to probate. The will bequeathed all his property to his wife and children. Over the objection of the legal guardians of Power Li Han, the university paid the money to the probate court for distribution according to the terms of the will. The plaintiffs then initiated the present suit to compel the administratrix of the will to deliver the wages in question to Power Li Han as provided in the beneficiary designation form.
The plaintiffs contend that the lower court incorrectly interpreted the meaning of MCLA § 408.522 (Stat Ann 1968 Rev § 17.272), and the beneficiary designation form executed pursuant to it.
The statute in question reads as follows:
“In case of the death of any employee, the employer, including the state and any political subdivision thereof only for the purpose of this section, may pay the wages due to such deceased employee to the spouse, children, father or mother, sister or brother of the deceased employee. Preference shall be given to these persons in the order named unless the employee, by a sworn statement which has been filed with the employer prior to death, has established a different order, without requiring letters of administration to be issued upon the estate of the deceased employee. If the deceased employee does not leave a spouse, children, father, mother, sister or brother surviving him, the employer may pay the wages due such deceased employee to the creditors of such deceased employee as follows: Undertaker, physician, hospital, boardinghouse keeper and nurse, each their pro rata share of wages due such employee, upon a sworn statement of the amount due, without letters of administration being issued. ‘Wages’ includes reimbursement for travel or other expenses which were due to the deceased employee. Payment of such wages shall be a full discharge and release of the employer from the wages so due and paid.” MCLA § 408.522 (Stat Ann 1968 Rev § 17.272). (Emphasis supplied.)
The lower court held that the statute in question is permissive in nature and that the mere filing of a sworn statement to change the order of preference does not make it mandatory. It is plaintiffs’ position that the statute is permissive, but once a sworn statement is filed changing the order of preference, there arises an enforceable contract to pay earned wages to the designee.
In interpreting a statute, the words therein must be given their ordinary and usual meaning unless it appears from the context or otherwise that a different meaning was intended. Jewel Tea Company, Inc. v. Board of Pharmacy (1953), 335 Mich 673. Applying'this rule to the case at bar, we are of the opinion that the statute imposes no duty on an employer to pay wages of an employee to a member of his family if, during his lifetime, he has filed a sworn statement designating a beneficiary. Significantly, the statute in question uses both the word “may” and the word “shall”. Prom this it can be inferred that the legislature intended to convey a different meaning by those words: “may” being permissive; “shall” being mandatory. See McLogan v. Craig (1969), 20 Mich App 497. The obvious import of the statute is that the employer “may” pay earned wages to a member of the deceased’s family, and only if he chooses to do so, is he obligated to pay according to the preferences set forth in the statute or as changed by the deceased during his limetime. The “shall” refers to the question of who shall get paid, not to the question of the employer’s obligation to pay.
Furthermore, an evaluation of the purpose of the statute confirms this interpretation. The clear import of the statute is to provide for the expeditious handling of the numerous but relatively small claims made against employers for wages due a deceased employee. An employer is permitted to obtain a full discharge where he pays in accordance with the aforementioned provisions, even though probate of the estate has not yet begun. The purpose of the statute, then, is to benefit the employer, rather than to establish a tool to be used by the employee as part of his estate planning.
Nor can we accept plaintiffs’ contention that the beneficiary designation form, in and of itself, is a contract to pay the named beneficiary at the death of the employee. The provisions of the form are as follows:
“Superseding any previous instruction, I hereby designate the person named below as my beneficiary to receive all compensation due to me in the event of my death while an employee of Michigan Technological University. I understand that the death of the named beneficiary, divorce of my spouse (husband or wife) if named as beneficiary, or my separation from the College voids this designation. I also understand that this designation may be canceled or changed only by filing a new form with the College personnel office.”
At the bottom of the form, the signatures of Chi Yeh Han and a representative of the college appear. It hardly requires comment that the above language does not purport to set forth contractual obligations. In fact, plaintiffs have failed to demonstrate the existence of a meeting of the minds, consideration, or any other of the essential elements of contracts. In such a case, it is our duty to affirm.
For the foregoing reasons, the judgment of the lower court is affirmed.
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Per Curiam.
By Ms plea of guilty, defendant was convicted of receiving and concealing stolen property, contrary to MCLA § 750.535 (Stat Ann 1971 Cum Supp § 28.803.) The people have filed a motion to affirm that conviction. GCR 1963, 817.5(3).
It is manifest that the questions presented, on which decision of the cause depends, are so unsubstantial as to need no argument or formal submission.
Defendant was not required to establish by his own testimony each of the elements of the offense. People v. Donald T. Moore (1970), 21 Mich App 150; People v. Melvin (1969), 18 Mich App 652; People v. Bartlett (1969), 17 Mich App 205. The record contains a factual basis for the truth of the plea. Bartlett, supra. The trial court did explain to defendant his right to a trial by jury. The court was under no obligation sua sponte to inquire whether defendant had previously offered out-of-court admissions or confessions. People v. Osterhout (1970), 25 Mich App 238. Finally, the assertion that defendant’s plea was involuntary because of unfulfilled plea-bargaining promises by the prosecuting attorney cannot be made for the first time on appeal. People v. Horvath (1970), 25 Mich App 649; People v. Minson (1970), 24 Mich App 692; People v. Dorner (1970), 24 Mich App 306; People v. Kenny Smith (1969), 20 Mich App 307.
Motion to affirm is granted. | [
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Per Curiam.
Defendant appeals a plea-based conviction of uttering and publishing. MCLA § 750.249 (Stat Ann § 28.446).
Certain procedural errors are alleged to have occurred prior to the acceptance of defendant’s plea on October 7, 1968. These allegations of error are without merit and do not provide grounds for reversal. Where a defendant enters a plea of guilty to a charge against him, he waives any defects in the prior proceedings, including any defects which may have occurred at the arraignment before the examining magistrate. People v. Tate (1946) 315 Mich 76; People v. Quicksall (1948), 322 Mich 351; People v. Gant (1966), 4 Mich App 671, 674.
Defendant’s final issue is framed in the following question:
May a guilty plea by an accused, represented by counsel, stand as against an after-made allegation that the plea was directly induced by the existence of an illegally-obtained confession in the possession of the police at the time the plea was made?
Controlling precedent and rule has been established in People v. Temple (1970), 23 Mich App 651, followed in People v. Irwin (1970), 24 Mich App 582. In the Temple case we held:
“The plea is voluntary if it is knowingly and understandably made with the benefit of counsel, irrespective of the existence of the illegally obtained confession.”
The instant record indicates that the trial judge examined the defendant in painstaking detail as to the reason for his plea, explained to him in precise terms all of his pre-plea alternatives, and pointed out fully and fairly the consequences of the plea; and that the defendant was represented by counsel with whom he conferred. We are convinced that the plea was voluntary and that there was no miscarriage of justice. People v. Dunn (1968), 380 Mich 693.
Affirmed. | [
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Hoee, J.
At the time this appeal was processed criminal action No 22600, People v. Calvin Williams and other defendants, was awaiting trial in the Genesee County Circuit Court. Milton R. Henry of the Genesee County and Michigan Bar was the attorney of record for the defendants. The background of Mr. Henry’s appearance of record in that case is of interest. Sometime prior to the commencement of the Calvin Williams action, Mr. Henry had been adjudged guilty of contempt of court by Genesee County Circuit Judge Mansour because of repeated failures to attend scheduled proceedings in criminal cases pending before Judge Mansour. Judge Mansour imposed fines for such contempt. Henry refused to pay the fines. Judge Mansour issued an order to show cause for Henry to appear at a hearing to determine whether he should be imprisoned for failure to pay the fines previously levied. Mr. Henry appeared in response to the show cause order and at the hearing agreed on the record he would never again appear before Judge Mansour on any matter in exchange for Judge Mansour’s agreement to vacate the previously entered contempt order.
But then came the case of the People v. Williams. Mr. Henry had represented the defendants in the complex and extensive district court proceedings. The defendants were bound over to the circuit court for trial. The case was assigned to Judge Mansour. Mr. Henry attempted to enter his appearance on their behalf in the circuit court before Judge Man-sour. The order mentioned above was then modified on the record by agreement between Judge Mansour and Henry. The agreement was this: Henry was permitted to enter his appearance to conduct the defense of the defendants in the Genesee County Circuit Court before Judge Mansour on two conditions (1) that Henry attend court on all matters duly scheduled and (2) if unable to do so, that he provide qualified alternate counsel to protect the rights of the defendants. This on-the-record agreement was made at a hearing held September 15,1969. The dialogue between Henry and the court at that particular hearing is of note:
Henry said:
“But I will say this: You are not to ever appoint any attorney for my client. I will make sure that if I’m not here there will be other competent counsel— .”
Later Henry said:
“Let me explain what I said. I will represent them. If I’m not here, I said competent counsel would appear in my stead of counsel. And that competent counsel will be counsel which I choose and not you. That’s what I’m saying.”
With the above as background — here is what then transpired:
1. On March 24, 1970, the criminal calendar was called. By local court rule, attorneys of record are required to attend this call and advise the court as to the most convenient time .for scheduling trial of criminal cases. Case number 22600 was called. Henry did not appear nor did any other counsel appear for the defendants.
2. The trial court then scheduled People v. Williams, No 22600, for trial to commence May 5, 1970.
3. About one week prior to the scheduled trial date, the prosecutor’s office filed and served notice on Henry of its intent to amend the list of res gestae witnesses indorsed on the information. At this time, Henry made known his intention to seek a continuance (of the scheduled trial date) and Henry himself refiled motions of his own that had been previously dismissed because of his failure to appear and argue or procure witnesses in support thereof.
4. The motions scheduled by the prosecutor were duly argued but after they had been heard by the court there was not sufficient time for the court to then entertain the motions which had been refiled by Henry. The court then rescheduled the hearing on Henry’s motions for May 4, 1970, at 10 a.m., that being the earliest date which Henry informed the court he would have open prior to the scheduled trial date of May 5, 1970.
5. Henry did not appear on the rescheduled motion date of May 4, 1970, to argue his motions nor did any other counsel appear for the defendants on that date.
6. On May 4, 1970, the trial court ordered a continuance of not only the hearing on Henry’s defense motion hut also of the trial itself which had been scheduled for the following day and this was done notwithstanding that approximately 150 witnesses were indorsed on the information and subpoenaed by the prosecuting attorney.
7. On May 4,1970, the trial court adjudged Henry in willful contempt for failure to appear in court on the scheduled hearing date of Henry’s motions or to provide alternate counsel on that date. The contempt proceedings were summary and conducted without Henry being notified thereof or being present. After finding Henry in contempt, Judge Mansour fined him $250 and ordered he be taken into custody and held until he purged himself of the contempt by either appearing himself or providing alternate counsel for his clients in the pending criminal case. A bench warrant for Henry’s arrest was issued May 6, 1970.
8. On May 7, 1970, Henry filed with this Court an emergency petition for superintending control, but on May 8, 1970, this Court dismissed Henry’s petition for superintending control stating in its order of dismissal that Henry had a remedy available to him by way of emergency appeal.
9. Henry then filed an emergency appeal and on May 11, 1970, this Court ordered that the execution of the bench warrant heretofore issued by the trial court for the arrest of Henry be stayed pending the disposition of this appeal.
Under the facts as set forth above was the failure of Henry to appear (or provide alternate counsel to appear) before the trial court on May 4, 1970, as previously ordered, a direct contempt committed in the immediate view and presence of the court so that the trial court could invoke its contempt powers, be they inherent, via court rule or statute, to punish summarily? We think not.
The tendency of appellate review courts has been to narrowly construe the powers of trial courts to punish summarily. In re Scott (1955), 342 Mich 614; In re Collins (1950), 329 Mich 192; In re Oliver (1948), 333 US 257 (68 S Ct 499, 92 L Ed 682).
We hold that Henry’s failure to appear in court (under the facts set forth above) was not a contempt committed in the immediate view and presence of the court and accordingly the court did not have the power to punish by summary proceedings.
The compelling reason a court may not invoke summary proceedings and punish for contempt one who fails to appear in court when required is that the reason for the absence of such person may not be within the personal knowledge of the judge. Another important reason is that under such circumstances immediate punishment is not absolutely essential to preserve the power and dignity of the court nor to prevent then and there an abuse of the court’s orders. Immediate punishment is not necessary to quell a disturbance nor to prevent then and there an instant obstruction or interference with the orderly administration of justice. It is only when such narrow instances have occurred and even then only under the very eye and face of the court that the due process of law requirements must yield so as to permit the court to invoke its summary contempt powers.
In all other cases due process of law requires that one charged with contempt be advised of the charges against him, be afforded a hearing on those charges, and thereby have a reasonable opportunity to meet the charges by defense or explanation.
"We fully appreciate that when Milton Henry failed to appear as ordered on May 4,1970, the administration of justice was seriously damaged. His very absence was certainly within the personal knowledge of the trial judge. But why wasn’t he there:aye-there’s the rub. Only a hearing can bring forth the reason or reasons and due process of law requires there be a hearing. The immediate punishment imposed by the trial judge via summary proceedings did not have the salutary effect of permitting the scheduled hearing to proceed nor did it prevent the abortion of the trial scheduled the following day. Thus the clear and compelling necessity was absent.
The order of Judge Mansour of May 4, 1970, adjudging Milton Henry guilty of contempt of court and the punishment imposed in such order is hereby vacated.
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R. B. Burns, P. J.
Plaintiff appeals a judgment notwithstanding the verdict entered by the trial court in November of 1969. This action involves a boundary dispute and title to 7.32 acres of land in Clare County. Plaintiff and defendants are adjoining landowners. Plaintiff received his interest in the land through his father’s estate. His father purchased the land in 1926 at a tax sale. Due to the failure to comply with the statutory notice requirements the interest under the tax deed was never perfected. Defendants received their interest from Veda Saupe’s father who purchased the land in 1908.
A fence was constructed around 1900 and maintained for many years by both plaintiff and defendants. In 1949 plaintiff had the land surveyed and it was discovered the true boundary line was some distance south of the fence. The plaintiff erected a new fence on the true boundary line which was torn down by the defendants.
In 1953 plaintiff instituted a suit in ejectment claiming he was the owner of the land and that the defendants had ousted him from possession. Defendants’ answer denied the allegations and raised affirmative defenses: imperfect title in the plaintiff for failure to comply with the statutory notice to perfect his tax deed and a claim of adverse possession from 1908 until 1953.
The trial court dismissed the case on the grounds that neither the plaintiff nor his father had complied with the statutory requirements of notice to perfect title. MCLA § 211.140 (Stat Ann 1960 Rev § 7.198). Judgment was entered March 25,1960.
Next plaintiff filed a bill in chancery to quiet title' to the property. He named Elizabeth Rosenthal and all those who might claim under her as defendants. Elizabeth Rosenthal was the last named grantee in the chain of title prior to plaintiff’s father. The Saupe’s, defendants in the first action, were not named in the hill or served with process. A decree quieting title was entered May 5, 1960.
December 1961, plaintiff filed this action in ejectment against the defendants. Plaintiff alleged that he was in possession of the property May 5, 1960, and that defendants entered onto the premises on or about September 20,1960, and continued to withhold possession from the plaintiff.
Defendants moved to dismiss this action on the grounds of res judicata, claiming the issue in this case was decided in the 1953 action. The motion was denied. Defendants renewed the motion to dismiss at the opening of trial, at the close of plaintiff’s proofs and again after the jury had returned its verdict. The trial judge took all motions under advisement and reserved ruling under the Empson Act. CL 1948, § 691.691 (Stat Ann § 27.1461) ,
The jury returned a verdict for the plaintiff and defendants filed a motion for judgment notwithstanding the verdict, which was granted.
Plaintiff claims the trial court erred by granting the judgment notwithstanding the verdict as the defendants had not moved for a directed verdict during the trial.
At the time the trial took place, a motion for a directed verdict at the close of plaintiff’s proofs or at the close of all proofs was a condition precedent for making a motion for a judgment notwithstanding the verdict, and the grounds for the judgment notwithstanding the verdict had to be the same grounds as urged for the directed verdict. Fitzgerald v. Bixler (1962), 368 Mich 160.
In addition, the trial judge stated as his reason for granting a judgment notwithstanding the verdict that the verdict was contrary to the great weight of the evidence. Such a consideration was grounds for a new trial but not a proper consideration for a judgment notwithstanding the verdict. Davis v. Belmont Creamery Co. (1937), 281 Mich 165.
In the case of Draws v. Levin (1952), 332 Mich 447, the plaintiff sued the defendant for malpractice. The operation took place in 1939 and plaintiff instituted suit in 1945. The trial judge directed a verdict against the plaintiff on the grounds that the plaintiff had failed to establish any fraudulent concealment on the part of the defendant and plaintiff had failed to show any actionable negligence. The Court stated (pp 453, 454):
“The trial judge, in the absence of any proof of fraudulent concealment, might have properly directed a verdict for the defendant on the sole ground that the action was not begun within the statutory period of 2 years from December 5,1941.
“ ‘The fact that the trial court assigned a wrong reason for a correct result does not affect the disposition of the case in this Court. H. H. King Flour Mills Co. v. Bay City Baiting Co., 240 Mich 79.’ Goldman v. Grand T.W. R. Co., 287 Mich 289, 296.”
In the present case, prior to filing the answer, defendants moved to dismiss the case on the grounds of res judicata, claiming the 1953 action decided the issue raised in this case. The trial judge denied the motion on the grounds that the legal status of the parties had changed since the first action because of the decree quieting title in the plaintiff.
In the case of Kirby v. Michigan C. R. Co. (1926), 236 Mich 286, the Court held that a person desiring to quiet title to real estate must use due diligence and make a reasonable effort to discover all persons who claim an interest in the property; that the defendant, being in possession of the land and not being personally served, was not bound by the decree quieting title.
The Saupes were persons known to the plaintiff who claimed an interest in the land and, not being personally served, they were not bound by the decree quieting title. The legal status of the parties was not changed between the first and second ejectment suits. The trial judge should have granted defendants’ motion to dismiss on the grounds of res judicata.
As stated in Draws v. Levin, supra:
“ ‘The fact that the trial court assigned a wrong reason for a correct result does not affect the disposition of the case in this Court.’ ”
Affirmed. Costs to defendants.
All concurred.
Repealed by RJA 1961. For current provision see OCR 1963, 515. | [
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Per Curiam.
This case arises out of a quo warranto action to try title to tbe office of City Comptroller of Grand Bapids. From a judgment that defendant was ineligible to continue in office, be appeals.
In May of 1968, the defendant, Bicbard Harper, was elected to a four-year term as City Comptroller of Grand Bapids. As comptroller, Harper became a city official and subject to Title V, § 23 of the city charter which provided:
“Holding Other Offices Prohibited. Sec. 23. No member of the city commission shall accept any civil appointment, except that of notary public, during the term for which elected nor shall any city official become a candidate for any office other than a city office while holding any other office under the city.”
On June 15, 1970, Harper filed nominating petitions in order to run in the Democratic primary election to select a candidate for the office of 92nd district State Representative. The city attorney advised the commission that Harper was no longer eligible to hold office and that they could either bring an action of quo warranto or proceed under Title Y, § 24(a) of the charter which provided:
“Removal of Officers or Employees. Sec. 24(a). Any officer or employee of the city, except judges, justices of the peace, or those whose removal is otherwise provided for under this charter, may be removed by the city commission for official misconduct or for unfaithful or improper performance of the duties of his office or employment or for ineligibility.” (Emphasis supplied.)
The commission authorized the city attorney to take the necessary steps to initiate quo warranto proceedings. Application was made to the Attorney General requesting that he bring the quo warranto action and, when he declined, the city attorney applied to the circuit court for leave to file a complaint of quo warranto. The circuit court granted leave and the suit was commenced. The court found that defendant was ineligible and declared the office of comptroller vacant. Defendant subsequently lost the primary election and now appeals.
Defendant’s three assignments of error question whether quo warranto was the proper remedy, whether the city was the proper party to bring the action, and whether defendant was a “candidate” for office within the meaning of the charter.
First, it is defendant’s contention that the circuit court did not have jurisdiction to entertain the quo warranto action, because the right to pass upon his eligibility to hold office had been delegated to the city commission in Title Y, § 24(a) of the charter. As authority for this contention, defendant cites Houston v. McKinlay (1966), 4 Mich App 94. The Houston case was based upon McLeod v. State Board of Canvassers (1942), 304 Mich 120, 129, which laid down the following proposition:
“The weight of authority in other jurisdictions adheres to the rule of law that where constitutional or statutory provisions make a legislative body the sole judge of the election and qualifications of its own members, the final decision rests in such body, and courts cannot interfere. [Citations omitted.] The same rule obtains in this state. As to representative in congress, see Belknap v. The Board of Canvassers of Ionia County, [1893] 94 Mich 516; as to members of a common council under a city charter, People, ex rel. Dafoe, v. Harshaw, [1886] 60 Mich 200 (1 Am St Rep 498); as to members of the state legislature, The Auditor General v. The Board of Supervisors of Menominee County, [1891] 89 Mich 552.”
We point out that the charter in the case at bar does not make the city commission the exclusive judge of the qualifications of city officials; it merely provides that any officer umay be removed” by the commission (Emphasis supplied). Furthermore, it is unlike the provisions in the Houston and McLeod cases in that it does not limit the authority of the commission to that of passing upon the qualifications of its own members. The charter provision here extends to removal of any officer or employee of the city. Under these circumstances, we are reluctant to hold that the cases put forth by the defendant would bar the city from seeking a writ of quo warranto, which is the customary procedure by which eligibility to hold office is determined. See Dick v. City of Melvindale (1935), 271 Mich 419; Sempliner v. Fitzgerald (1942), 300 Mich 537.
Second, defendant contends that the City of Grand Rapids was not the proper party to bring the action. GCR 1963, 715.2(3), (4) provide:
“(3) Application to Attorney General. Any person may apply to the attorney general to have the attorney general bring the actions specified in sub-rule 715.2(1). The attorney general may require the person to give security to indemnify the state against all costs and expenses of the action. The person making the application, and any other person having the proper interest, may be joined as parties plaintiff.
“(4) Refusal of Attorney General to Bring the Action. If, upon proper application and offer of security, the attorney general refuses to bring the action, the person may apply to the appropriate court for leave to bring the action himself. Leave to bring the action may be granted by the court.” (Emphasis supplied.)
Defendant urges that the City of Grand Rapids is not a “person” within the meaning of the court rule.
Although the court rule does not give a definition of “person,” the word “person” is commonly held to embrace bodies politic and corporate as well as individuals, e.g., MCLA § 8.37 (Stat Ann 1969 Rev § 2.212 [12]). We can see no reason for a different rule here, especially in light of the trend to provide more liberal requirements in the area of who may-petition for a writ of quo warranto. The personal interest of the relator, or lack of it, is no longer relevant. The most important considerations in granting leave to file quo warranto:
“ * * * would be whether an appropriate application was made to the Attorney General, in cases where required, and whether the application discloses sufficient apparent merit to justify further inquiry by quo warranto proceedings.” 4 Honigman & Hawkins, Michigan Court Rules Annotated (2d Ed), Rule 715, p 237.
It is obvious that both of these requirements were met here.
Finally, defendant maintains that one is not a true “candidate” for office until he has been nominated in the primary. Plaintiffs, on the other hand, maintain that the word “candidate” applies to persons running either in primary or regular elections. Unfortunately, the city charter does not define “candidate”. We must therefore look elsewhere for the solution to our problem.
Counsel for the parties have not cited, and we have been unable to find, a single Michigan case which is squarely in point. It appears, however, that the great majority of state and Federal courts which have passed upon the question have adopted a definition of “candidate” similar to that set forth in the New York case of Matter of Burns v. Wiltse (1951), 200 Misc 355, 357 (108 NYS 2d 62, 65):
“The term ‘candidate’ is not defined in the election law. The meaning of the term is that ordinarily and customarily understood. Primarily it means one who seeks an office or honor; the secondary meaning is one who is selected by others as a contestant for office.”
In accordance with the weight of authority, we hold that a participant in a primary election is a candidate for office within the meaning of the charter and that Richard Harper was ineligible to continue as a city official after June 15, 1970.
For the foregoing reasons, the judgment of the lower court is affirmed.
Affirmed.
The case of Line v. Board of Election Canvassers of Menominee County (1908), 154 Mich 329, cited by defendant, is inapposite.
See generally 6 Words and Phrases, pp 61-64.
See Norris v. United States (CA 8, 1936), 86 F2d 379. | [
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Per Curiam.
Sherrill Burian was charged with receiving and concealing stolen property with a value of more than $100, MCLA § 750.535 (Stat Ann 1971 Cum Supp § 28.803). She was arraigned without representation of counsel on September 19, 1969, and her plea of guilty was accepted.
On appeal, defendant contends that the trial court erred in that she was not advised of her right to counsel in accordance with GCR 1963, 785.3(1). At the arraignment, the defendant was examined by the court in the following manner:
“Q. Do you have a lawyer ?
“A. No.
“Q. Do you want a lawyer?
“A. No.
“Q. Do you waive your right to a lawyer?
“A. Yes.”
GCR 1963, 785.3(1) provides:
“Arraignment. If the accused is not represented by counsel upon arraignment, before he is required to plead, the court shall advise the accused that he is entitled to a trial by jury and to have counsel, and that in case he is financially unable to provide counsel the court will, if accused so requests, appoint counsel for him. If the accused states he will procure counsel or requests that counsel be appointed, a reasonable time thereafter shall be allowed for counsel to consult with the accused before his plea shall be taken.”
The people cite the cases of People v. Stearns (1968), 380 Mich 704, and People v. Everson (1969), 16 Mich App 739, as standing for the proposition that the trial court has substantially complied with the court rule. However, in Stearns, the defendant was informed by the trial court that he had “a right to have a lawyer” and in Everson the defend ant was asked, “Do you know you are entitled to have [a lawyer] ?”
In the case at bar, defendant was in no way informed of her right to have a lawyer. Her subsequent waiver of her right to a lawyer could not, therefore, be considered an intelligent waiver. We find that the court rule was not complied with and the plea must, therefore, be vacated.
Reversed and remanded. | [
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Per Curiam.
At oral argument March 4, 1971, counsel for defendants conceded that the issues raised on appeal were without substance and that the trial court properly disposed of this action. We applaud his candor and commend him for the high quality of advocacy thus exhibited.
Counsel for defendants did express concern over an issue of back pay, and if there was any way we could solve this issue, we would. The record will not permit us to do so.
Plaintiff’s complaint sought to have his resignation declared null and void on the basis that it was involuntary. This relief was granted and plaintiff was reinstated as a police officer, “with all rights and benefits from September 12,1968”. We have no way of determining those rights and benefits, but from present experience, it appears likely that plaintiff and defendants can make that determination amicably without further litigation.
The trial court is affirmed with costs to plaintiff. | [
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Per Curiam.
The sole question presented on this appeal is whether PA 1968, No 188 (MCLA 1970 Cum Supp § 38.413a [Stat Ann 1970 Cum Supp §5.1191(13.1)]) is constitutional. The trial court held that the act was unconstitutional on two grounds: First, it was the trial court’s ruling that art 11, § 6 of the Constitution of 1963 precludes the legislature from passing an act governing administration of a local civil service system. Second, the trial court held that Act No 188 was a violation of the equal protection of the laws.
PA 1968, No 188, effective June 21, 1968, amends PA 1941, No 370 (MCLA § 38.401 et seq. [Stat Ann 1961 Rev § 5.1191(1) et seq.]) by adding a new section 13a. Act No 370 is the act which establishes the Wayne County Civil Service Commission. The new section 13a provides in pertinent part:
“Any county employee in the classified service who has held a provisional appointment or provisional promotion continuously in the same class and agency for a period of 6 months as of July 1, 1968, shall be granted regular status in the class of positions in which such provisional appointment or provisional promotion is held.”
On June 20, 1968, the plaintiffs filed a complaint in anticipation of the Governor’s signing the act. The complaint sought a temporary restraining order to prevent the Wayne County Civil Service Commission from dismissing, demoting, or reclassifying any employees who had held provisional status for more than six months. The complaint also sought judicial interpretation of the act, a determination of the date on which it became effective, and the effect of the act on various classes of employees. The restraining order was issued. The status quo, as of June 20,1968, has been maintained through the restraining order and an order granting an emergency stay of proceedings issued by this Court on February 6, 1970.
The trial court’s ruling that Const 1963, art 11, § 6 removed the power of the legislature to legislate with respect to local civil service systems was based on constitutional convention debate and on OAG, 1965-1966, No 4507, p 349 (August 29, 1966) which rules that art 11, § 6 is self-executing. This section of the 1963 Constitution has been judicially interpreted in the case of Sloan v. Warren Civil Service Commission (1970), 26 Mich App 555. The Court’s holding in Sloan is not addressed to the issue of legislative power.
As a general rule the principles of statutory construction apply to construction of the Constitution. There is a presumption that words in the Constitution have been used according to their plain, natural import, and a court is not at liberty to disregard the plain meaning of the words in order to search for some other conjectured intent. American Youth Foundation v. Township of Benona (1967), 8 Mich App 521. The legislature’s power to legislate is unlimited, except as expressly limited by the Constitution. Attorney General, ex rel. O’Hara, v. Montgomery (1936), 275 Mich 504; Huron-Clinton Metropolitan Authority v. Boards of Supervisors of Five Counties (1942), 300 Mich 1.
The language of art 11, § 6 is permissive. Local governments may establish civil service systems. Once those systems are established they are independent of legislative control. Sloan v. Warren Civil Service Commission, supra. The fact is not disputed that Wayne County has not acted under art 11, § 6 and, therefore, the Wayne County Civil Service Commission is still organized under PA 1941, No 370. Article 11, § 6 must be read to intend the plain meaning of its words. Its words do not, in their plain meaning, prevent the legislature from amending statutes which organize local civil service systems not organized under art 11, § 6. The opinion of the Attorney General which rules that art 11, § 6 is self-executing simply means that no legislation is required to enable local governmental units to adopt local civil service systems and that once they are adopted they automatically supersede the legislative system. The trial court’s interpretation of art 11, § 6 is not supported by the clear meaning of the words of the section.
We are of the view that the trial court also erred in concluding that Act No 188 creates a discriminatory classification which violates the equal protection clauses, US Const, Am 14, § 1 and Const 1963, art 1, § 2.
There is a presumption that a statute passed hy the legislature is constitutional, Cady v. City of Detroit (1939), 289 Mich 499.
In Gauthier v. Campbell, Wyant & Cannon Foundry Company (1960), 360 Mich 510, the Supreme Court reviewed the standards to be applied when determining whether a statutory classification violates the equal protection clause.
At page 514, the Court stated:
“ ‘The standards of classification are:
“ ‘1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.’” (Citation omitted.)
In reviewing the constitutionality of Act No 188, this Court must keep in mind that any interpretation of the act which indicates that the legislature acted reasonably in creating the classifications established in the act will require a holding that it is constitutional.
There are two possible interpretations of Act No 188. The first, suggested by the plaintiffs and the only one considered by the trial court, is that Act No 188 establishes a new method for provisional employees to attain regular status, i.e., any employee who maintains provisional status in a position for six months automatically attains regular status. The second interpretation is that Act No 188 is “one shot” legislation, i.e., all employees who had held provisional status for six months on July 1, 1968, were automatically granted regular status on that date and that is all.
Into each of these interpretations a reasonable, not arbitrary, legislative intent can be read. The first interpretation can support the following legislative intent: From July 1, 1968 on, the Wayne County Civil Service Commission shall fill all provisional appointments through regular competitive means within six months or else, in the interest of governmental efficiency, those employees who have held the positions provisionally will automatically hold them with regular status. The second interpretation can be justified by the following legislative intent: The Wayne County Civil Service Commission has a huge back-log of provisional employees who have held their positions for over six months. In the interest of governmental efficiency, Act No 188 will grant all employees who have held provisional status for six months on July 1, 1968, regular status, thus clearing up the backlog and allowing the Wayne County Civil Service Commission to operate its regular promotional procedures with greater efficiency.
Both of these interpretations of Act No 188 indicate a reasonable legislative purpose. It is apparent that the classification created by the act has a rational basis. We find no violation of equal protection of the law.
We think it inappropriate at this stage to resolve which of the above interpretations of Act No 188 is correct. That is a question to he decided in the first instance by the trial court together with the other unresolved issues in the case. It suffices here to note that under either interpretation, the act would be constitutional.
The judgment of the trial court declaring PA 1968, No 188 unconstitutional is reversed. Otherwise the ease is remanded for further proceedings consistent with this opinion. | [
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Per Curiam.
Defendant was found guilty by a jury of armed robbery and was sentenced to a term of 15 to 20 years in prison. On appeal he contends that reversible error was committed by the failure of the prosecution to produce at trial an indorsed res gestae witness, prejudicial identification procedures, denial to trial counsel of time to confer with the attorney present at the lineup, and by an additional charge being given to the jury after they had been deliberating for some time.
Kenneth Baker, stock boy in the grocery store at the time of the robbery, was a witness to the crime and was indorsed as a res gestae witness. By indorsing the name of a witness on the information the prosecutor becomes duty bound to produce him at the trial. The prosecutor may be excused from producing the witness if he shows due diligence in attempting to produce him, People v. Kern (1967), 6 Mich App 406; People v. Zabijak (1938), 285 Mich 164. The record in this case clearly shows that a letter addressed to Kenneth Baker at his last known address was returned to the police department by the postal authorities with an indication that Kenneth Baker had moved from his last known address. Thereafter the police contacted the postal authorities and were informed that there was no forwarding address; the postman on the route stated that he had no knowledge of a forwarding address; the mother of Kenneth Baker was contacted and she indicated that her son was not residing at their home, but was staying with his grandmother; a visit by the police was made to the address of the grandmother but they received no response; and school authorities had no record of Kenneth Baker. While the trial court did not explicitly rule that due diligence had been shown by the prosecutor, it is clear from the record that reasonable efforts to locate the witness had been made by the prosecution and such a ruling should have been made. Thus, in accordance with the powers granted to this Court by GrCB. 1963, 820.1(7) we so hold. We note fur ther from the record that defense counsel was aware of the witness being absent, and yet at the time of the instructions by the court made no objection as required by GCR 1963, 516.2. Thus, it is clear that defense was satisfied that reasonable efforts had been made to locate the missing witness. "We find no error.
The complainant was called to police headquarters on three occasions to look at photographs. She identified defendant first from his picture and then in a lineup. Pretrial identification is proper and will be set aside only if found to be so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States (1968), 390 US 377 (88 S Ct 967, 19 L Ed 2d 1247). The record discloses that the identification procedures were not suggestive and that the in-court identification was based on complainant’s own recollections independent of photographs or lineup.
Defendant next charges that it was error for the trial court to refuse to stop proceedings so that defense counsel could confer with the attorney present at the lineup. Counsel was aware that a lineup had been held and should have known that an attorney was present. United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149). Failure to confer with the lineup attorney prior to trial was counsel’s own negligence and a continuance was properly refused. GCR 1963, 503.1.
Finally, defendant assigns as error the giving of the following instruction after the jury had been deliberating for some time:
“Members of the jury, it appears that you are having some difficulty in arriving at a verdict in this case. I would remind you and each and every one of you, that you took an oath to fairly and impartially hear this case and render your judgment thereon.
“I have no way of knowing how you are guided or where you are in the deliberations of this case, but I would say this to you in conferring together you ought to pay proper respect to each other’s opinion and to each other’s argument.
“In order to bring twelve minds to a unanimous result, you must examine the evidence submitted to you with fairness and proper regard in deference to the opinion of others as well as to your duty as jurors to fairly decide this case.”
Here, as in People v. Maxwell (1966), 3 Mich App 264, 268:
“A fair reading of this colloquy convinces us that it was a reasonable interrogation of the jury designed to obtain a considered verdict rather than to force a hasty one. See People v. Pizzino (1945), 313 Mich 97, and People v. Kasem (1925), 230 Mich 278.”
Affirmed.
MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797). | [
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Per Curiam.
Defendant appeals his nonjurytrial conviction of unarmed robbery. MCLA § 750-.530 (Stat Ann 1954 Rev § 28.798). His appeal as serts there was not sufficient evidence as a matter of law to support his conviction.
Appellate courts do not constitute reviewing fact finders and do not hear cases anew upon the evidence presented in a criminal case. People v. Eagger (1966), 4 Mich App 449; People v. Arither Thomas (1967), 7 Mich App 103. Further, the test is not whether the verdict is against the great weight of the evidence, hut whether the evidence warrants a finding of guilty beyond a reasonable doubt of the crime charged. People v. Williams (1962), 368 Mich 494, 501; People v. Schram (1965), 1 Mich App 279; People v. Jones (1965), 1 Mich App 633; People v. Washington (1966), 4 Mich App 453; People v. Galarno (1966), 3 Mich App 491.
The victim in this case was Amado Settles. Defendant admitted he knew that Amado Settles wanted to procure the services of a girl and further that he knew Amado Settles was carrying a substantial amount of money. The evidence shows Amado Settles walked around “behind” the Traffic Jam Bar where he was grabbed, beaten and robbed of his money by a small group of men. The evidence further shows that defendant was one of the men who beat Amado Settles. The only reasonable inference which the trial court, sitting without a jury, could draw from these facts was that defendant willingly and knowingly participated with others in a plan or scheme to rob Amado Settles while unarmed.
Where there is evidence from which the court could reasonably find a defendant guilty beyond a reasonable doubt, a reviewing court will not interfere with the trier of the facts’ determination. People v. Ford (1969), 19 Mich App 519, 521, dealing with armed robbery in a jury trial.
In the instant case there was ample evidence to support a finding of guilty beyond a reasonable doubt by the trial court. Defendant was given a fair and impartial trial and there was no miscarriage of justice. MCLA § 769.26 (Stat Ann 1954 Rev § 28.1096).
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Per Curiam.
Defendants appeal the trial court’s decision to grant plaintiff’s motion for a new trial. The trial court, in a written opinion, granted the new trial on the basis that the jury’s verdict “shocks the judicial conscience” because it was “against the great weight of the evidence”. Speculating on the jury’s rationale in returning such a verdict, the trial court stated, “Apparently, there is a natural prejudice against people in this type of business, the home modernization business”.
The parties contracted for the plaintiff to remodel the defendants’ home for $4,755. After the remodeling work was completed defendants refused to pay plaintiff on the grounds that the work had not been completed according to the contract and that plaintiff had failed to perform the work in a good and workmanlike fashion.
Plaintiff filed suit to foreclose a mechanic’s lien in the amount of $4,755, and defendants counterclaimed for $10,000 and demanded a jury. It was not until after the jury was selected and the first witness sworn that the court and the parties realized that the case was equitable in nature. The judge discussed the matter with both counsel in chambers and informed them that the case would be tried as a jury case. When counsel were asked by the judge if there were any objections, neither attorney objected.
The jury returned a verdict of no cause of action against the plaintiff and $1,200 in favor of the defendants. The question presented for appeal is whether the trial court erred in granting plaintiff’s post-verdict motion for a new trial.
The granting of a new trial rests in the discretion of the trial court. Detroit Tug & Wrecking Co. v. Circuit Judge (1889), 75 Mich 360; J. L. Hudson Co. v. Barnett (1931), 255 Mich 465; People v. Poole (1967), 7 Mich App 237; Benmark v. Steffen (1968), 9 Mich App 416.
The rule laid down in Benmark v. Steffen, supra, to determine if the trial judge has exercised his discretion properly is to the effect that if the reasons assigned by the trial judge for his action are legally recognized and the reasons are supported by any reasonable interpretation of the record, he acted within his discretion.
GCR 1963, 527.1(3), (4), and (5) support the trial judge’s reasons for granting a new trial. After reviewing the record we conclude the trial court’s decision was not unreasonable.
Affirmed. Costs to plaintiff.
Orders granting new trials are reviewable upon leave granted. Benmark v. Steffen (1968), 9 Mich App 416. | [
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W. R. Brown, J.
This is an action for contribution for 50% of the damages sustained to premises insured by both plaintiff and defendant. The parties agreed on a stipulated statement of facts and plaintiff thereupon moved for summary judgment. This motion was denied and judgment was entered against plaintiff and dismissal was ordered on January 10, 1977. Plaintiff claims an appeal as of right.
The owners and mortgagors of a home purchased a policy of fire insurance from Farmers Insurance Exchange naming a mortgage company as the loss payable party. The property was later conveyed by warranty deed filed February 27, 1973. The mortgage company agreed to the assumption of the mortgage by the new owner on March 10, 1973, but did not notify Farmers of the change of ownership. The new owners obtained a policy of insurance from State Farm Fire and Casualty Company, effective March 14, 1973, and the same mortgage company named as mortgagee-insured in the first policy issued by Farmers was designated as the mortgagee-insured in the policy issued by State Farm. Although Farmers was not notified of the change of ownership by the mortgagee, it did receive actual notice and issued a notice of cancellation on March 1, 1973, with a cancellation date of April 5, 1973. The notice of cancellation also provided for a partial refund of the premium. On March 28, 1973, the insured property was damaged by fire. Both plaintiff and defendant investigated the loss but Farmers rejected the claim. State Farm adjusted the loss, made payment to the mortgagee, and thereafter sought contribution from Farmers.
The policy reads in relevant part as follows:
"[T]his insurance as to the interest of the mortgagee * * * shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy; provided, that in case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee [or trustee] shall, on demand, pay the same.
"Provided also, that the mortgagee [or trustee] shall notify this Company of any change of ownership or occupancy or increase of hazard which shall come to the knowledge of said mortgagee [or trustee] and, unless permitted by this policy, it shall be noted thereon and the mortgagee [or trustee] shall, on demand, pay the premium for such increased hazard for the term of the use thereof, otherwise this policy shall be null and void.”
The trial court held that the actual notice to Farmers of the change of ownership did not obviate the requirement of notice from the mortgagee and thus held the policy null and void. We reverse.
With actual notice of the change of ownership, the purpose of this clause was fulfilled. Farmers was apprised of any increase in hazard caused by the change of ownership and occupancy. Even though apprised of this change, pursuant to which it issued a notice of cancellation on March 1, 1973, Farmers did not opt for immediate cancellation, but extended the coverage to April 5, 1973. By so doing, Farmers waived its right to declare an immediate cancellation and forfeiture of coverage. See First Baptist Church of Jackson v Citizens’ Mutual Fire Insurance Co, 119 Mich 203, 207; 77 NW 702 (1899). See also Serbinoff v Wolverine Mutual Motor Insurance Co, 242 Mich 394, 400-401; 218 NW 776 (1928). Having done so, Farmers may not escape liability "by the simple expedient of a retroactive, nunc pro tunc termination of coverage”. Kaczmarck v La Perriere, 337 Mich 500, 506; 60 NW2d 327 (1953).
A reversal on the ground stated above still leaves unanswered whether plaintiff can recover contribution. It is generally held that an insurer may not recover contribution where it has paid the full amount of a loss even though its obligation is only to pay the proportion of the loss that the amount insured by such insurer bears to the whole insurance on the property. 44 Am Jur 2d, Insurance, § 1818, p 743. One authority regards this as the majority rule. 16 Couch on Insurance 2d, § 62:157, pp 568-569. We decline to follow this rule and instead hold that contribution may be obtained in Michigan.
By statute, the standard fire insurance policy in Michigan requires only pro rata liability where there are two insurance policies covering the same property. MCLA 500.2832; MSA 24.12832. Under this statutorily mandated policy, plaintiff and defendant were each legally obligated to pay only one-half of the claim and defendant was unjustly enriched by plaintiff’s payment of the full claim. However, MCLA 500.2836(4); MSA 24.12836(4) gives a statutory right of subrogation that includes contractual as well as tort rights of action. We believe the legislative intent expressed in this latter statute favors contribution in this situation. Had plaintiff sought a declaratory judgment prior to payment, it would have been entitled to an order declaring Farmers liable for half of the damages and State Farm liable for half of the damages. See Horr v Detroit Automobile Inter-Insurance Exchange, 379 Mich 562, 566-567; 153 NW2d 655 (1967). Believing as we do that public policy should favor prompt payment of insurance claims, we hold that no different result follows from the payment to the insured prior to seeking a judicial determination of the right to contribution.
Reversed and remanded for proceedings not inconsistent with this opinion. | [
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P. R. Mahinske, J.
This worker’s disability compensation case presents a question of the proper test for disability following a discharge from favored work.
Plaintiff was hired by defendant in 1955. Her initial job consisted of gluing vinyl coverings on auto arm rests, a job which involved stretching the vinyl with her hands. On June 3, 1955, plaintiff felt a pain in her wrist when pulling on a piece of vinyl. After receiving first aid therapy and pain pills, plaintiff saw the company doctor who put her wrist in a cast. Because of her injury, plaintiff was transferred to lighter work, picking up pieces of scrap, which she could perform using only one arm.
In September, 1955, plaintiff was hospitalized for a wrist operation. After a brief period of disability from this operation, plaintiff returned to a job drilling holes in the arm rests for screws. This job caused her pain, however, because the machine jerked. Consequently, plaintiff was transferred back to the scrap job.
After performing the scrap job for eight months to one year, plaintiff began experiencing pain in her left elbow in 1956. Because of this pain, plaintiff transferred to a job sorting and tying scrap vinyl material. According to the testimony of both plaintiff and her supervisor, this job was one of the easier ones at the Livonia Fisher Body plant. However, plaintiff continued to experience worsening pain.
For almost four months in 1959, plaintiff received compensation benefits for chronic epicondylitis (tennis elbow). In addition between 1959 and 1966, plaintiff took approximately two years of sick leavé for reásoñs hot reflected in defendant’s records.
G)n March 13, 1966, déféndant fired plaintiff. According to plaintiff’s testimony; the reason for héf discharge was that she made a false statement against another employee. Thé parties stipulated that the reason for her termination Was not plaintiff’s physical condition. After her discharge, plaintiff workéd briefly as a telephone solicitor at Montgomery Ward during the Christmas season. Subsequent to this, plaintiff could not find á job within her physical capabilities. She could not do housework because of her elbow. Her brief employment ás a governess ended because she Was incapable of lifting tíié smallest child in the family.
Plaintiff filed a petition for compensation benefits and, following a hearing before an administrative law judge, her claim was denied. She appealed to thé Workmen’s Compensation Appeal Board (WCAB), which affirmed on the basis of failure to give timely notice. This Court reversed the Board’s determination oh the question of notice and remanded for a ruling as to whether plaintiff incurred a wOrk-rélatéd disability (Order No. 24774).
In response to the ordér of this Court, the Appeal Board rendered a decision on November 18, 1975; With three separate opinions. The "majority” of two found that plaintiff’s Work after 1956 was "favored work”, but that plaintiff was not disabled at the time of her discharge. The concurrence agreed as to the finding of no disability, but found that the date of injury Was March 13, 1966. The two dissénting members agreed with the concurring opinion as to the last day of Work date of injury but Would have found plaintiff disabled because after her original injury she could no longer compete ih the field of common labor:
In Adair v Metropolitan Building Co, 38 Mich App 393; 196 NW2d 335 (1972), this Court held that even if an employee is not disabled from performing former duties with his employer, he may be disabled for compensation purposes because of a loss of earning capacity in the entire field of unskilled labor. The Supreme Court has ruled that favored work does not establish a wage-earning capacity which can defeat a claim for compensation. Lynch v Briggs Manufacturing Co, 329 Mich 168, 172; 45 NW2d 20 (1950). See also Evans v United States Rubber Co, 379 Mich 457, 465; 152 NW2d 641 (1967).
The record made below clearly indicates that plaintiff did favored work for 11 years after her initial injury which necessitated surgical intervention. Plaintiff testified that while she performed this work she experienced almost constant pain. Both medical experts testified below that there was indication of post-1956 aggravation of plaintiff’s elbow condition.
In the face of the above record and findings it appears that the conclusion reached by the majority opinion of the WCAB is a misapplication of the law as interpreted by the courts. This Court has ruled that if an employee is injured but not immediately disabled, and with further work the injury slowly evolves into a disability, the fact that the worker continues to perform his job does not establish a capacity to earn. Medacco v Campbell, Wyant & Cannon Foundry Co, 48 Mich App 217, 221; 210 NW2d 360 (1973).
Plaintiff’s documented evidence of work loss substantiates her unrebutted claim of continuing pain in her employment. Since the majority of the WCAB found plaintiff not entitled to benefits, it is apparent that they neglected to temper the medi cal testimony against prior decisions of this Court, and that their conclusion of fact is premised on an incorrect assumption of law. Therefore, this Court is not restricted by the limited scope of review of factual determinations of the WCAB. Medacco, supra, Vanderbee v Knape & Vogt Manufacturing Co, 48 Mich App 488, 490; 210 NW2d 801 (1973), Moore v Gundelfinger, 56 Mich App 73, 77-78; 223 NW2d 643 (1974).
The WCAB and defendant rely upon the theory that there can be no disability since the record supports a finding that plaintiff could still do the favored, light work which she did for a long period of time after initial injury. Plaintiff does not claim she was injured by the favored work she did subsequent to her initial injury. Plaintiff merely claims that the favored work aggravated her initial injury. The uncontradicted evidence shows that plaintiff could no longer perform the job being done when she was first injured. Dr. Carpenter found no disability in performing the light work, but his further testimony suggests that plaintiff would be disabled from doing the nonlight work job she had at the time of the original injury. Dr. Lipton, the other doctor who testified below, found that plaintiff was disabled in the field of common labor generally.
This Court has recognized that an unskilled worker is entitled to compensation benefits if her injuries prevent her from competing within the field of common labor. See Medacco and Adair, supra. In Adair, the Court quoted with approval the Appeal Board’s ruling:
" 'at the time of plaintiffs injury he was employed in the field of unskilled labor. This is a field of labor normally referred to as common labor requiring no particular skill to perform and the field encompasses the whole spectrum of unskilled work. A common laborer’s right to receive compensation is not solely contingent upon his inability to perform a specific unskilled job to which he may have been assigned at the time of his injury but it is dependent upon his inability to compete with others in the general field of labor where his injury occurred.’ ” Adair v Metropolitan Bldg Co, supra, pp 401-402.
The Michigan Supreme Court in Evans, supra, was confronted with a like situation where an injured employee was unable to perform the common labor he was performing at the time of injury. He was given lighter work to do. The Court classified this work as "favored work” and stated that such work did not establish a wage-earning capacity in common labor. The Court stated:
"In our opinion, performance of favored work no more establishes wage-earning capacity in common labor if there be several such jobs in the plant performed as well by able-bodied as by injured men than it would if created only to take care of plaintiffs specific, injured condition.” Evans v United States Rubber Co, supra, p 465.
Clearly, the state of the law is that the word "work” in MCLA 418.401(a); MSA 17.237(401)(a), defining "disability”, is interpreted to mean the entire spectrum of common labor, but excludes favored work as a basis for finding a disability or not.
The finding of the WCAB was clearly based upon an improper standard, that is to say, plaintiffs ability to perform the particular favored work job she was last doing with defendant. We, therefore, reverse and remand to the WCAB for findings of fact after application of the proper legal standard.
Plaintiffs date Of injury issue was decided in her fávor by three members of the Appeal Board. Finding evidence in the record to sustaifi this factual determination, we do not disturb it on appeal. Sosnowski v Dandy Hamburger, 384 Mich 221, 224; 180 NW2d 761 (1970). Plaintiffs daté Of injury was March 13, 1966.
Plaintiffs "moral turpitude” issue is not discussed herein, inasmuch as plaintiff prevailed on this issue before the WCAB, and defendant concedes that a discharge for reasons less than an act of moral turpitude doés not relieve an employer of liability for compensation benefits. We express no opinion on the position taken by another panel of this Court in Scott v Kalamazoo College, 77 Mich App 194; 258 NW2d 191 (1977).
Reversed and remanded. Costs to plaintiff. | [
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J. H. Gillis, P. J.
Plaintiff, Berlin and Farro Liquid Incineration, Inc., commenced this action in Genesee County Circuit Court seeking judicial review of administrative orders entered by the defendants, the Michigan Department of Natural Resources (hereinafter referred to as DNR), the Air Pollution Control Commission (hereinafter referred to as APCC) and the Water Resources Commission (hereinafter referred to as WRC).
The orders entered by the respective defendants terminated the operation of plaintiff’s waste incineration facilities located near Swartz Creek, Michigan.
Plaintiff was originally issued a permit to install and operate a waste incinerator on April 21, 1971. Late in 1973, defendant, APCC, commenced administrative proceedings against plaintiff for alleged air pollution violations. As a result of these proceedings, plaintiff entered into a consent agreement to abate the pollution problem on April 20, 1974.
The terms of the consent agreement required plaintiff to install pollution control equipment at its incineration facilities over the next 18 months. The agreement also imposed other requirements upon plaintiff which were designed to abate the pollution problems caused by the incinerator.
In May, 1975, defendant APCC found plaintiff in violation of the consent order and referred the matter to the Attorney General. Shortly thereafter, defendant DNR issued an emergency cease and desist order suspending plaintiffs licenses for hauling and disposing of liquid wastes, and terminating the operation of plaintiffs liquid waste incinerator.
Defendant DNR then issued an administrative complaint charging plaintiff with failure to abate particulate emissions from its waste incinerator in accordance with the consent order.
A hearing examiner appointed by defendant DNR conducted an evidentiary hearing on December 10, 1975.
The owners of plaintiff corporation admitted noncompliance with the consent order but asserted that good faith efforts had been made to acquire and install the necessary equipment. Plaintiff also stated that a supplier had delayed acquisition of the equipment which would have placed plaintiff in compliance with the state emission standard and the consent order.
Defendant APCC sets the emission standard for incinerators like plaintiffs at .1 pound of particulates per 1,000 pounds of flue gas. Defendant APCC did not actually test plaintiffs incinerator to determine if a violation existed. The violation of the emission standard was based on test data submitted by plaintiff with its original application for a permit to operate the incinerator. This data revealed that plaintiff’s incinerator was grossly violating the emission standard.
Water pollution was also the subject matter of the hearing. Plaintiff stores approximately 2-1/2 million gallons of liquid waste in two open lagoons.
While this situation was not an immediate pollution threat, normal accumulations of rain and snow could eventually cause the lagoons to overflow. This undoubtedly caused defendant DNR also to suspend plaintiffs license to haul liquid wastes since plaintiff might begin to store more than its capacity since the incinerator was shut down.
The hearing examiner made certain findings of fact in respect to both air and water pollution but regarded himself as lacking authority to make a final decision and referred his findings to defendants, APCC and WRC.
Defendant WRC issued its final order on March 25, 1976, with modifications to the findings made by the hearing examiner in respect to water pollution.
Defendant APCC adopted the findings of the hearing examiner with respect to air pollution and ordered plaintiff to permanently cease and desist from any operation of the incinerator until the consent order was complied with.
The circuit court affirmed the administrative orders entered by the respective defendants and plaintiff appeals as of right.
Plaintiff first contends that the consent order it entered into with defendant APCC is an election of remedies barring further administrative action by defendants, APCC and WRC.
Plaintiffs argument is based upon its interpretation of specific sections of the Air Pollution Act, MCLA 336.11 et seq.; MSA 14.58(1) et seq., and the Water Resources Act, MCLA 323.1 et seq.; MSA 3.521 et seq. The Air Pollution Act authorizes air polluters and the APCC to enter into consent agreements to abate air pollution problems.
Plaintiff claims that agreements entered into pursuant to this section can only be reviewed by a circuit court, and directs us to MCLA 336.26; MSA 14.58(16) and MCLA 336.27; MSA 14.58(17) in support of this contention.
Plaintiff misconstrues the purpose and intent of the aforementioned sections. MCLA 336.18; MSA 14.58(8) pertains to criminal penalties for violations of the Air Pollution Act. MCLA 336.27; MSA 14.58(17) grants the APCC the general authority to bring appropriate actions in circuit courts "to enforce any and all laws, rules and regulations relating to the provisions” of the act. Neither section limits the APCC from taking further ad ministrative action on voluntary consent agreements entered into in accordance with MCLA 336.18; MSA 14.58(8).
The language of MCLA 336.18(3); MSA 14.58(8)(3) expressly authorizes the APCC to take further administrative action if there is a violation of a consent agreement.
"if in the opinion of the commission the person violates the terms of the agreement or contract the commission can proceed to enforce the conditions of the agreement or contract by order or by the institution in a court of competent jurisdiction of an action for specifíc performance or such other legal or equitable relief as the commission deems appropriate.” (Emphasis supplied.)
The WRC is also expressly authorized to pursue further administrative action after a violation of an agreed-on course of action. MCLA 323.7(1); MSA 3.527(1).
Accordingly, we rule that the APCC and the WRC can institute further administrative action against a polluter after it has entered into an agreement concerning a pollution problem with such a polluter.
Plaintiff next contends that defendant DNR did not possess the authority to institute emergency administrative action on the basis of the consent agreement executed between plaintiff and defendant APCC. We disagree.
On or about September 16, 1975, defendant DNR issued an emergency order to plaintiff by which plaintiff was ordered to cease and desist from any operation of its liquid waste incinerator; to cease and desist from transporting, carrying, hauling or removing any liquid industrial waste from the premises of another to plaintiff’s premises or to any other premises; and to cease and desist from accepting any liquid industrial waste at its premises. In addition, plaintiffs license to transport or carry liquid industrial waste and the site certification of its premises were also suspended.
Section 92 of the Administrative Procedures Act authorizes such action.
"If the agency finds that the public health, safety or welfare requires emergency action and incorporates this finding in its order, summary suspension of a. license may be ordered effective on the date specified in the order or on service of a certified copy of the order on the licensee, whichever is later, and effective during the proceedings. The proceedings shall be promptly commenced and determined.” MCLA 24.292; MSA 3.560(192).
The director of defendant DNR made the appropriate finding in accordance with the aforementioned statute and issued the emergency order. Plaintiff claims that defendant DNR lacked the authority to take such action.
Plaintiff argues that only defendant APCC possesses the authority to issue such orders. Plaintiff directs us to executive order #1973-2a which provided for the transfer of the WRC and the APCC to defendant DNR via a "type II transfer”. A "type II transfer” is defined by MCLA 16.103(b); MSA 3.29(3)(b) as follows:
"Under this act, a type II transfer means transferring of an existing department, board, commission or agency to a principal department established by this act. Any department, board, commission or agency assigned to a type II transfer under this act shall have all its statutory authority, powers, duties and functions, records, personnel, property, unexpended balances of appropriations, allocations or other funds, including the functions of budgeting and procurement, transferred to that principal department(Emphasis supplied.)
However, executive order 1973-2a contains provisions that seemingly divest the defendant DNR of authority to make an emergency order.
"The Water Resources Commission shall continue to exercise independent authority with respect to quasi-judicial functions in the rule-making, enforcement, and issuance of orders in the water pollution control functions. In all other areas it shall serve in an advisory capacity to the Natural Resources Commission and staff.
"The Air Pollution Control Commission shall continue to exercise independent authority with respect to quasi-judicial functions in the rule-making, enforcement, and issuance of orders in the air pollution control function. In all other areas it shall serve in an advisory capacity to the Natural Resources Commission and staff.”
Such a hybrid "type II transfer” can be construed to grant either the DNR and the individual commissions the authority to act in areas of air and water pollution or restrict action in such areas to the individual commissions alone.
This Court construes the order to grant concurrent jurisdiction to defendant DNR and the individual commissions. The alternate interpretation of the order proposed by the plaintiff would present serious constitutional questions. MCLA 16.104; MSA 3.29(4) mandates that a principal department not have less authority than a subordinate agency:
"Except as otherwise provided by this act, or the state constitution, all executive and administrative powers, duties, and functions, excepting those of the legislature and the judiciary, previously vested by law in the several state departments, commissions, boards, officers, bureaus, divisions, or other agencies are vested in the following principal departments * * * (Emphasis supplied.)
If the WRC and APCC have greater authority than their superior agency, the DNR, a question arises as to whether they are de facto principal departments, contrary to the constitutionally imposed limit of 20. Const 1963, art 5, § 2, MCLA 16.104; MSA 3.29(4).
We do not believe that the Governor intended to violate the constitution of this state by increasing the number of principal departments beyond the constitutionally imposed limit of 20. Accordingly, we rule that defendant DNR possessed the authority to issue the emergency cease and desist Order which resulted in the cessation of operation of plaintiffs incineration facilities.
Pláintiff finally claims that the administrative decisions made by the respective defendants are invalid in that they are not supported by sufficient evidence.
The standard of review in respect to decisions made by administrative agencies is whether or not the decision is supported by competent, material and substantial evidence as reflected by the whole record. Const 1963, art 6, § 28.
Defendant APCC adopted the findings of the DNR hearing examiner and in addition found that compliance with the consent order was necessary to prevent air pollution from plaintiffs incinerator. The hearing examiner also found that plaintiff had violated other provisions of the consent agree ment besides failing to install the appropriate pollution control devices.
One of plaintiffs owners admitted noncompliance with the provisions of the consent order. Plaintiff attempts to excuse this noncompliance by alleging that it made good faith efforts to order and install the pollution control devices.
However, even if this good faith effort could be found to justify and excuse plaintiff’s noncompliance in respect to the pollution control equipment, it would not excuse plaintiffs failure to adhere to the remaining conditions of the consent order.
Based upon this record, we find that the decisions entered by the respective defendants are supported by competent, material and substantial evidence. The other issues raised on appeal do not merit discussion by this Court.
Accordingly, the trial court’s order is affirmed. No costs, a public question being involved.
The consent agreement was not an admission of wrongdoing by plaintiff.
The permit application reveals that plaintiff's incinerator could be emitting as much as 2.8 pounds of particulates per 1,000 pounds of flue gas which is almost 30 times as much as the emission standard set by the APCC.
"(1) If a written complaint is filed with the commission and the commission believes, or if the commission believes that any person is violating this act or any rule promulgated by the commission by causing or permitting air pollution, the commission shall make a prompt investigation. If after such investigation it ñnds that a viola tion of any rule of the commission exists, it shall endeavor to enter into a voluntary agreement with such person as provided in subsection (2).
"(2) In consideration of the provisions of this section or other sections of this act the commission, after due notice and opportunity for public hearing, may enter into a voluntary agreement or a performance contract with a person to abate pollution under conditions agreed upon by the commission and the person, which agreement may provide for the enforcement of its terms by speciñc performance.
"(3) If in the opinion of the commission the person violates the terms of the agreement or contract the commission can proceed to enforce the conditions of the agreement or contract by order or by the institution in a court of competent jurisdiction of an action for speciñc performance or such other legal or equitable relief as the commission deems appropriate.
"(4) Whenever a person other than a party to the agreement feels himself aggrieved by an agreement entered pursuant to subsection (2), he may file a sworn petition with the commission within 30 days of the issuance of notice of the agreement setting forth the grounds and reasons for his complaint and asking for a hearing of the matter involved. Thereupon the commission shall set a date for a hearing to be held not more than 60 days from the date the petition is filed and shall notify the petitioner thereof. At the hearing the petitioner and any other interested party may appear, present witnesses and submit evidence. A final order or determination of the commission upon the matter following the hearing shall be conclusive, unless reviewed in accordance with Act No. 306 of the Public Acts of 1969, as amended, in the circuit court for the county of Ingham or for the county in which the person resides.” MCLA 336.18; MSA 14.58(8). (Emphasis supplied.)
The executive order was executed by Governor William G. Mil-liken.
An agent of plaintiff corporation admitted noncompliance with the consent order at the administrative hearing. | [
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R. B. Burns, P. J.
Plaintiffs appeal from an order of the circuit court suppressing a pistol from evidence. We reverse.
Defendant was arrested for driving under the influence of intoxicating liquor, contrary to MCLA 257.625; MSA 9.2325. There was snow along the side of the road which hampered parking the vehicle. Consequently the automobile was impounded. After the car was impounded an officer conducted an inventory search of the vehicle. The officer found a pistol under the front seat on the driver’s side. Defendant was therefore charged with carrying an unlicensed pistol in a vehicle, contrary to MCLA 750.227; MSA 28.424.
Defendant filed a motion to suppress the pistol from evidence and the trial judge granted the motion.
The validity of inventory searches of impounded cars was decided by the United States Supreme Court in South Dakota v Opperman, 428 US 364; 96 S Ct 3092; 49 L Ed 2d 1000 (1976). Chief Justice Burger, writing for the Court, stated:
"Police will * * * frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.
"When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles’ contents. These procedures developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody, United States v Mitchell, 458 F2d 960, 961 (CA9 1972); the protection of the police against claims or disputes over lost or stolen property, United States v Kelehar, 470 F2d 176, 178 (CA5 1972); and the protection of the police from potential danger, Cooper v California, [386 US 58, 61-62]; 87 S Ct 788; 17 L Ed 2d 730 (1967). The practice has been viewed as essential to respond to incidents of theft or vandalism. See Cabbler v Commonwealth, 212 Va 520, 522; 184 SE2d 781, 782 (1971), cert denied, 405 US 1073, 92 S Ct 1501; 31 L Ed 2d 807 (1972), Warrix v State, 50 Wis 2d 368, 376; 184 NW2d 189, 194 (1971). In addition, police frequently attempt to determine whether a vehicle has been stolen and thereafter abandoned..
"These caretaking procedures have almost uniformly been upheld by the state courts, which by virtue of the localized nature of traffic regulation have had considerable occasion to deal with the issue. Applying the Fourth Amendment standard of 'reasonableness,’ the state courts have overwhelmingly concluded that, even if an inventory is characterized as a 'search,’ the intrusion is constitutionally permissible.” 428 US at 369-371; 96 S Ct at 3096-3097; 49 L Ed 2d at 1005-1006. (Footnotes omitted.)
The order of suppression is hereby set aside and the cause remanded for trial. | [
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R. B. Burns, J.
Defendant was charged with possession of a controlled substance, phencyclidene. MCLA 335.341(4)(b); MSA 18.1070(41)(4)(b). Prior to trial he moved to suppress evidence obtained in a search of his person and to quash the information. The motion was denied and we granted an interlocutory appeal.
The facts indicate that two Detroit police officers received a radio call to investigate two allegedly drunken persons in an alley. Upon their arrival at the alley, the officers found defendant and a companion. The intoxicated companion was arrested for disorderly conduct. Defendant did not appear intoxicated, but when he was asked for his identification, he replied that he was Sergeant Mash, a Detroit police officer. When asked for his badge number, defendant replied that he was working for Sergeant Mash. Defendant was then arrested for failure to produce identification, handcuffed, and searched. Marijuana was found immediately, and phencyclidene was found later at the station in a pack of defendant’s cigarettes.
It is defendant’s theory that the Detroit ordinance which allows a police officer to arrest an individual for failure to produce identification is unconstitutional, that the search incident to his arrest was therefore unlawful, and that the evidence must be suppressed. It is plaintiffs theory that we should avoid the issue of the constitutionality of the ordinance, because even if the ordinance is unconstitutional, the police officer’s good faith reliance thereon would preclude application of the exclusionary rule. The purpose of the exclusionary rule is to deter unlawful police conduct, and "where official action was pursued in complete good faith, the deterrence rationale loses much of its force”, Michigan v Tucker, 417 US 433, 447; 94 S Ct 2357, 2365; 41 L Ed 2d 182, 194 (1974). See United States v Carden, 529 F2d 443 (CA 5, 1976), United States v Kilgen, 445 F2d 287 (CA 5, 1971).
We cannot subscribe to plaintiffs theory. If, as defendant argues, the ordinance is void for vagueness, subject to arbitrary and discriminatory application, and used as a pretext for unlawful search and seizure, suppression of evidence obtained pursuant to a search incident to arrest thereon will deter unlawful police conduct, and the exclusionary rule should therefore apply. See Powell v Stone, 507 F2d 93, 98 (CA 9, 1974), rev’d on other grounds, 428 US 465; 96 S Ct 3037; 49 L Ed 2d 1067 (1976), United States ex rel. Newsome v Malcolm, 492 F2d 1166, 1174-1175 (CA 2, 1974), Hall v United States, 459 F2d 831, 841-842 (DC Cir, 1972).
At the time of defendant’s arrest, Detroit Municipal Code § 39-1-52.3 read as follows:
"When a police officer has reasonable cause to believe that the behavior of an individual warrants further investigation for criminal activity, the officer may stop and question such person. It shall be unlawful for any person stopped pursuant to this section to refuse to identify himself, and to produce verifiable documents or other evidence of such identification. In the event that such person is unable to provide reasonable evidence of his true identity the police officer may transport him to the nearest precinct in order to ascertain his identity.”
The ordinance has been slightly amended since defendant’s arrest, but there are no significent changes.
The ordinance is void for vagueness.
First, it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden * * * ”. United States v Harriss, 347 US 612, 617; 74 S Ct 808, 812; 98 L Ed 989, 996 (1954), see Papachristou v City or Jacksonville, 405 US 156; 92 S Ct 839; 31 L Ed 2d 110 (1972). An innocent citizen cannot generally know when a police officer has reasonable cause to believe that his behavior warrants further investigation for criminal activity, and therefore cannot know when refusal to identify himself will be a crime. Nor does the ordinance define which of today’s numerous forms of identification will satisfy a police officer’s desire for verifiable documents. This lack of specificity "encourages arbitrary and erratic arrests”, Papachristou v City of Jacksonville, supra, by delegating to police officers the determination of who must be able to produce what kind of identification.
Second, the ordinance seeks to make criminal, conduct which is innocent. Papachristou v City of Jacksonville, supra, Detroit v Sanchez, 18 Mich App 399, 401-402; 171 NW2d 452, 453 (1969).
"Personal liberty, which is guaranteed to every citizen under our Constitution and laws, consists of the right of locomotion, — to go where one pleases, and when, and to do that which may lead to one’s business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all other citizens. One may travel along the public highways or in public places; and while conducting themselves in a decent and orderly manner, disturbing no other, and interfering with the rights of no other citizens, there, they will be protected under the law, not only in their persons, but in their safe conduct. The Constitution and the laws are framed for the public good, and the protection of all citizens, from the highest to the lowest; and no one may be restrained of his liberty, unless he has transgressed some law. Any law which would place the keeping and safe conduct of another in the hands of even a conservator of the peace, unless for some breach of the peace committed in his presence, or upon suspicion of felony, would be most oppressive and unjust, and destroy all the rights which our Constitution guarantees.” Pinkerton v Verberg, 78 Mich 573, 584; 44 NW 579, 582-583 (1889).
While police may under certain circumstances intrude upon a person’s privacy by stopping him and asking questions, Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), there can be no requirement that the person answer. "[WJhile the police have a right to request citizens to answer voluntarily questions concerning unsolved crimes they have no right to compel them to answer.” Davis v Mississippi, 394 US 721, 727 fn 6; 89 S Ct 1394, 1397 fn 6; 22 L Ed 2d 676, 681 fn 6 (1969). Accord, Terry v Ohio, supra, at 34; 88 S Ct at 1886; 20 L Ed 2d at 913 (White, J., concurring).
Third, the ordinance undercuts the probable cause standard of the Fourth Amendment. Papachristou v City of Jacksonville, supra, People v Berck, 32 NY2d 567; 300 NE2d 411; 347 NYS2d 33 (1973). A police officer may make only a limited search of a person he has stopped on suspicion, and then only if he has reason to believe the person is armed and dangerous. Terry v Ohio, supra. The Detroit ordinance sanctions full searches on suspicion, without regard for dangerousness, of those persons whose activities fall within the vague parameters of the ordinance.
Since the ordinance is void, the search incident to arrest for violation of the ordinance was unlawful. The evidence should have been suppressed and the information quashed.
Reversed.
The amendment, Detroit Ordinance No 158-H (October 19, 1976), makes clear that refusal to identify oneself is a crime. This was implicit in the ordinance as it read at the time of defendant’s arrest, since the ordinance authorized arrest for failure to identify oneself. | [
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Per Curiam.
Defendants appeal as of right from a judgment in favor of plaintiff following a bench trial in which the trial court awarded plaintiff specific performance of a contract. The judgment ordered defendants to admit plaintiff, upon the payment of $250,000, as a limited partner in a partnership organized by defendants. It also provided that that amount was to be reduced by $175,000 to compensate plaintiff for the profits he would have received had defendants admitted him to the partnership in a timely fashion.
In 1974, defendants became interested in constructing a nursing home in Pasadena, Texas. The property was acquired and an application for a Housing and Urban Development (HUD) mortgage was submitted. In 1975, a need and necessities certificate was issued by the State of Texas. However, defendants were unable to raise the additional financing they needed to put their plan into operation. Therefore, on the advice of their attorneys, they contacted plaintiff to arrange to find a limited partner who could contribute $300,000 to the venture. Of that amount, plaintiff was to receive $50,000 for his services.
Plaintiff obtained a person named Leroy Barnes who was willing to invest the necessary capital. Since HUD approval was required of all investors, defendants’ agreement with plaintiff contained the following provision:
"5. Mr. Barnes’ participation in the partnership is subject to HUD approval. Immediately upon the execution of all pertinent douments, HUD will be so notified. In the event that Barnes is not approved by HUD you will have the right and the obligation to obtain a substitute limited partner(s) substantially on identical terms and conditions. You will be the sole judge of when to effect the substitution. If Mr. Barnes is substituted, Mr. Barnes will receive back all funds theretofore contributed by him to the Partnership together with interest at the rate of 15 percent per annum on such funds until repaid. The undersigned will personally bear the foregoing interest expense.”
In April, 1977, HUD rejected Barnes as an investor. Plaintiff appealed that decision. However, in December, 1977, he withdrew the appeal when he learned that Barnes had been convicted of a drug offense earlier in December.
A dispute exists concerning when defendants notified plaintiff that they were rescinding the agreement. Defendants claim that, in November, 1977, they tendered to Barnes the funds he had previously advanced to them, and substituted Mortimer Building Company as the new partner at that time. Plaintiff claims that the rescission occurred in January, 1978.
In any event, plaintiff claims that the agreement permitted him to substitute himself as the limited partner and that defendants refused to permit him to do so. He claimed, and the trial court agreed, that he was entitled to specific performance of the contract.
The remedy of specific performance is an equitable remedy. Derosia v Austin, 115 Mich App 647, 652; 321 NW2d 760 (1982). Therefore, our review is de novo. We sustain the findings of the trial court unless convinced, on review of the evidence, that we would have reached a contrary result. Behring v Northern Michigan Exploration Co, Inc, 104 Mich App 300, 306; 304 NW2d 560 (1981). We are convinced that a contrary result should have been reached in this case.
Defendants contend, and we agree, that the agreement entered into between plaintiff and defendants did not give plaintiff a right to substitute himself in place of Barnes. In our opinion, the agreement created an agency relationship between plaintiff and defendants with plaintiff acting as agent on behalf of defendants for the purpose of securing an investor. The term "agent” was defined by the Supreme Court in Stephenson v Golden, 279 Mich 710, 734-735; 276 NW 849 (1937):
" 'An agent is a person having express or implied authority to represent or act on behalf of another person, who is called his principal.’ Bowstead on Agency (4th ed), 1.
" 'An agent is one who acts for or in the place of another by authority from him; one who undertakes to transact some business or manage some affairs for another by authority and on account of the latter, and to render an account of it. He is a substitute, a deputy, appointed by the principal, with power to do the things which the principal may or can do.’ 2 CJS 1025.
"The term 'agent’ includes factors, brokers, etc. 2 CJS 1025.
"As said in Saums v Parfet, 270 Mich 165; 258 NW 235 (1935):
" ' "Agency” in its broadest sense includes every relation in which one person acts for or represents another by his authority’ 2 CJ 419.
"' "Whether an agency has been created is to be determined by the relations of the parties as they in fact exist under their agreements or acts.” 21 RCL 819.
"' "The characteristic of the agent is that he is a business representative. His function is to bring about, modify, affect, accept performance of, or terminate contractual obligations between his principal and third persons. To the proper performance of his functions, therefore, it is absolutely essential that there shall be third persons in contemplation between whom and the principal legal obligations are to be thus created, modified or otherwise affected by the acts of the agent.” 1 Meechem on Agency (2d ed), 21.’
"A broker is an agent with special and limited authority, one who is employed by another to negotiate for specific property with the custody of which he has no concern. 9 CJ 508; 8 Am Jur 989.” See Maxman v Farmers Ins Exch, 85 Mich App 115, 121; 270 NW2d 534 (1978).
In addition to requiring plaintiff to obtain an investor, the agreement entered into between plaintiff and defendants required plaintiff to obtain an alternate investor if Barnes was not acceptable to HUD. Furthermore, the agreement authorized plaintiff to bind defendants to accept an investor who met the conditions set forth in the agreement and who was acceptable to HUD. These provisions lead to the inescapable conclusion that plaintiff was employed to act on defendants’ behalf and that he was their agent. This conclusion is further supported by the definition of securities "agent” which is contained in the Uniform Securities Act. MCL 451.801(b); MSA 19.776(401)(b).
Having thus determined that plaintiff was employed as defendants’ agent, it follows that he was not permitted to personally profit from the agency relationship except to the extent that he was specifically permitted to do so by the agreement, or unless defendants expressly assented. In Golden, supra, the Court stated the following:
" 'One occupying a confidential and fiduciary relation to another is held to the utmost fairness and honesty in dealing with the party to whom he stands in that relation. Torrey v Toledo Portland Cement Co, 158 Mich 348; 122 NW 614 (1909).’ Pikes Peak Co v Pfuntner, supra [158 Mich 412; 123 NW 19 (1909)].
" ' "Except with the full knowledge and consent of his principal, an agent authorized to buy for his principal cannot buy of himself; an agent authorized to sell cannot sell to himself; an agent authorized to buy or sell for his principal cannot buy or sell for himself; nor can an agent take advantage of the knowledge acquired of his principal’s business to make profit for himself at his principal’s expense.” ’ ” 279 Mich 736.
Since the agreement did not specifically authorize plaintiff to substittue himself for Barnes, we are compelled to conclude that the trial court erred in ruling that plaintiff was entitled to the remedy of specific performance. Plaintiff’s exclusive remedy, if any, was to bring an action at law to recover his commission. Laker v Soverinsky, 318 Mich 100, 104; 27 NW2d 600 (1947). Whether any commission was in fact due is open to question in view of the uncontroverted evidence presented at trial that during the period plaintiff was purporting to act for defendants he also entered into an agreement with Barnes whereby Barnes agreed to pay plaintiff $200,000 to act on his behalf in arranging for Barnes’ participation in the partnership venture. Plaintiff admits that he failed to disclose his relationship with Barnes to defendants. However, this issue we find unnecessary to decide, instead leaving its resolution to the jury on retrial.
Defendants also claim that plaintiff was acting as a real estate broker in conducting this transaction and that he was barred from bringing this action by MCL 339.2501(a); MSA 18.425(2501)(a), which requires persons who negotiate the purchase or sale of a business or business opportunity to be licensed. We do not agree that plaintiff was engaged in the negotiation for the purchase or sale of a business or business opportunity within the meaning of the statute. He was only authorized to obtain an investor, not to effect a sale of the entire business. See Hague v DeLong, 292 Mich 262; 290 NW 403 (1940). Rather it appears that plaintiff was engaged in the sale of a security. See MCL 451.801(1); MSA 19.776(401)(1); Prince v Heritage Oil Co, 109 Mich App 189, 196; 311 NW2d 741 (1981).
In view of our disposition of the first issue, we find it unnecessary to address the remaining claims made by defendants.
The judgment of the trial court is reversed, and the case is remanded for a new trial. Costs to defendants. | [
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Per Curiam.
Defendant was charged with obstruction of justice pursuant to MCL 750.505; MSA 28.773, which provides for punishment of offenses indictable at common law. After a jury trial, defendant was found guilty and sentenced to serve 30 days in the county jail and two years on probation. Defendant appeals by right.
I
The information charging defendant stated:
"One Steven Duane Somma, late of 47128 Forton, Mt. Clemens, Michigan, did, with intent to obstruct the due course of justice, then and there wilfully and unlawfully dissuade, hinder, or bribe a person, to-wit: Gary Treumer, for the purpose of influencing said Gary Treumer to make false statements to authorities to seek dismissal of a criminal charge to which said Gary Treumer was a complaining witness, to-wit: the charge of assault with a dangerous weapon then pending against one Dennis William Berger, being Case No. S-2936-79, before the 76th District Court for Isabella County, Michigan; contrary to law as punishable by MCL 750.505; MSA 28.773.”
Defendant contends that this information was improper in that it charged defendant with obstruction of justice but listed the elements of the separate crime of incitement or procurement of perjury, MCL 750.425; MSA 28.667. Perjury, however, involves a false statement while under oath, MCL 750.423; MSA 28.665. The information does not charge defendant with inciting or procuring a false statement under oath.
Defendant also argues that the information omits an essential element of obstruction of justice, namely that defendant prevented or attempted to prevent a witness from testifying at trial. Defendant points out that the trial court’s instructions to the jury also contained no such element. It is true that in People v Boyd, 174 Mich 321; 140 NW 475 (1913), and People v Coleman, 350 Mich 268; 86 NW2d 281 (1957), the crime of obstruction of justice involved preventing a witness from testifying at trial. However, a large number of offenses at common law have come with the passage of time to be collected under the name of "obstruction of justice”. People v Davis, 408 Mich 255, 286-292; 290 NW2d 366 (1980) (opinion of Levin, J.). An obstruction of justice has been defined as an interference with the orderly administration of the law. People v Ormsby, 310 Mich 291, 299; 17 NW2d 187 (1945). See also 58 Am Jur 2d, Obstructing Justice, §2, p 855, and 67 CJS, Obstructing Justice or Governmental Administration, §§ 2-3, pp 120-121. It was an offense at common law to wilfully and corruptly hamper, obstruct, and interfere with a proper and legitimate criminal investigation. 67 CJS, Obstructing Justice or Governmental Administration, § 9, p 134. We are persuaded that the elements of the offense stated in the information and the instructions here fall within the definition of obstruction of justice. Moreover, it appears to us that, by bribing the complaining witness to make false statements to the police to obtain dismissal of the charge, defendant was attempting to prevent a trial on that charge and thus attempting to prevent the complaining witness from testifying at such a trial.
II
Evidence produced at a pretrial hearing showed that the police gave the complaining witness a tape recorder to record telephone conversations with defendant. After some conversations were recorded, the tape was listened to by police officers, who then returned the tape to the complaining witness so that subsequent conversations could be recorded on the same tape. Apparently, the tape was then accidentally erased by the complaining witness’s wife. There was no evidence that the police acted in bad faith and no evidence that anything material to the case, exculpatory or inculpatory, had been recorded. The conversation in which defendant offered to bribe the complaining witness took place before the tape recorder was obtained. No request by the defense for the tape had been made before erasure.
Defendant argues that the foregoing requires reversal of his conviction and dismissal of the charge, or at least a new trial at which the jury would be instructed that it could infer that the contents of the tape would be favorable to defendant. Defendant relies on Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963), in which the Court held that defendant was denied due process where the prosecution withheld specifically requested material evidence irrespective of whether the evidence was withheld in good faith or in bad faith. However, where the withheld evidence was not requested, a denial of due process exists only where the evidence was sufficient to create a reasonable doubt which might not otherwise exist. United States v Agurs, 427 US 97; 96 S Ct 2392; 49 L Ed 2d 342 (1976). Nothing suggests that the contents of the tape were material, much less sufficient to create a reasonable doubt.
Even if we were to accept defendant’s suggestion and assume that the contents of the tape were material despite the evidence to the contrary, defendant would not be entitled to reversal. Absent intentional suppression or a showing of bad faith, the loss of evidence which occurs before a defense request for it does not require reversal. People v Amison, 70 Mich App 70, 77-80; 245 NW2d 405 (1976), lv den 402 Mich 815 (1977); People v Oliver, 111 Mich App 734, 744-745; 314 NW2d 740 (1981). See also United States v Augenblick, 393 US 348, 355-356; 89 S Ct 528; 21 L Ed 2d 537 (1969). This was not a case like People v Anderson, 42 Mich App 10; 201 NW2d 299 (1972), in which the Court held that the prosecution had a duty to preserve evidence of photographs shown to the victim for identification purposes; the prosecution here had no duty to have defendant’s conversations taped because defendant had access to those conversations as a party to them. Oliver, supra, p 746.
III
On the last day of trial, after the defense had rested, counsel for defendant represented to the court that he had received that morning a telephone call from the complaining witness’s estranged wife, who was in the State of Washington at the time. Counsel stated the contents of the telephone call as follows:
"* * * Mrs. Treumer informed me this morning that she and her husband had made an agreement regarding any money received from Mr. Somma, and that that money would be split, split evenly between the parties, I’m sorry. She further indicated to me, your Honor, that this money and the attempt to gain the money from Mr. Somma was pursuant to a prior agreement between the husband and wife, and that they were in need of this money. Apparently, your Honor, Mr. Treumer has had a long history of alcoholism and was hospitalized while he was stationed in Germany for alcoholism and treated for same. He’s also had a prior involvement in a bar fight in 1973. And she further indicated to me that there is some concern regarding his filing of certain papers with the federal government for divorce benefits. Apparently there are some quarter payments and child support payments that he is receiving at this time that are against regulations and would further strengthen the motivation of the complaining witness * *
Counsel requested an adjournment to produce Mrs. Treumer or, alternatively, evidence corroborating her story. Adjournment of a trial is committed to the sound discretion of the trial court. See, for example, People v Wadkins, 101 Mich App 272, 277; 300 NW2d 542 (1980). Similarly, reopening of a case after the defense has rested is committed to the trial court’s sound discretion. People v Van Camp, 356 Mich 593, 602-603; 97 NW2d 726 (1959). On this record, we cannot say that the trial court abused its discretion. Mrs. Treumer was in Washington, had previously refused to testify, and did not agree to testify in her telephone conversation with counsel. There was therefore no reason to believe that she could be produced in the foreseeable future. Much of what she told counsel, such as her husband’s history of alcoholism, was irrelevant, even to her husband’s credibility. Her statement that she and her husband agreed to split the money received from defendant suggests that her husband entertained thoughts of accepting the bribe, but that would hardly provide a defense to a defendant accused of offering a bribe to her husband.
Defendant subsequently made a motion for a new trial, based in part on the telephone conversation with Mrs. Treumer. The trial court denied the motion. In People v Duncan, 96 Mich App 614, 616-617; 293 NW2d 648 (1980), the Court explained that granting or denial of a motion for a new trial based on newly discovered evidence was committed to the sound discretion of the trial court and that such a motion would be granted only if defendant met the following four-part test:
"(1) the evidence itself, not merely its materiality, was newly discovered; (2) the evidence is not cumulative; (3) it is such as to render a different result probable on a retrial of the case; and (4) the party could not with reasonable diligence have discovered and produced it at trial.”
The evidence was not such as to render a different result probable on retrial, both for the reasons stated above and because such testimony coming from a wife in the process of divorcing her husband would not be very credible. Moreover, no reason appears why defendant could not, with reasonable diligence, have discovered such evidence before trial. We cannot say that the denial of the motion for a new trial was an abuse of discretion.
Affirmed. | [
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Danhof, C.J.
Defendant pled guilty to cruelty to a child in violation of MCL 750.136; MSA 28.331 and was sentenced to two years incarceration. She appeals her conviction as of right.
The sole issue presented concerns the ability of the plea-taking court to rely on photographs to supplement the factual basis for defendant’s plea. Defendant admitted that she struck her child with a belt. However, she was unable to describe the precise nature of the injuries inflicted. Therefore, the prosecutor and defense counsel stipulated to the admission of a series of photographs which depicted the victim’s condition. Defendant agreed to that procedure. After viewing the photographs, the court ruled that sufficient factual support was established for the plea.
Defendant claims that factual support for a plea of guilty may be supplied only by examination of the accused.
The Supreme Court has established the procedure to be employed for the purpose of taking a plea of guilty or a plea of nolo contendere. GCR 1963, 785.7. It has established different procedures for a guilty plea than a plea of nolo contendere. Where a plea of guilty is entered, the court is required to establish factual support for the plea by questioning the defendant. GCR 1963, 785.7(3)(a). Where a plea of nolo contendere is entered, the court may not question defendant about his involvement. Instead, the court is required to state why such a plea is appropriate and also conduct a hearing to establish support for the plea. GCR 1963, 785.7(3)(b).
In view of the foregoing, we agree with defendant that, where the defendant fails to substantially admit guilt in entering a plea of guilty, the parties may not avoid the procedural requirements of the court rule merely by stipulating to the admission of other evidence to provide support for the plea. If defendant is unwilling or unable to admit the facts giving rise to the plea, the appropriate plea is one of nolo contendere if the court can state adequate reasons for acceptance of such a plea. See Guilty Plea Cases, 395 Mich 96, 132-135; 235 NW2d 132 (1975).
Although we agree that the procedure employed is objectionable where defendant does not substan tially admit guilt, we do not agree that such supplementation may never occur where a substantial admission has been made by direct questioning of defendant. The purpose of the requirement of direct questioning is to insure that the plea is both voluntarily and intelligently made. People v Kedo, 108 Mich App 310, 316; 310 NW2d 224 (1981). These constitutional protections may be satisfied even where defendant fails to admit all of the elements of the offense. People v Booth, 414 Mich 343, 358-360; 324 NW2d 741 (1982). In Booth, supra, the Court quoted from North Carolina v Alford, 400 US 25; 91 S Ct 160; 27 L Ed 2d 162 (1970), wherein the United States Supreme Court stated:
" '[T]he Constitution is concerned with the practical consequences, not the formal categorization of state law. * * * Thus, while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime. ’ 400 US 37. (Emphasis added.)” Booth, supra, pp 359-360.
In Guilty Plea Cases, supra, p 129, the Supreme Court authorized a procedure for supplementation after remand in cases in which an appellate court has found that an insufficient factual basis was established to support acceptance of the plea. Subsequent decisions of this Court have held that the post-remand supplementation may be supplied by evidence other than defendant’s admissions if defendant substantially admitted guilt at the initial plea hearing. Kedo, supra; People v Brown, 96 Mich App 565; 293 NW2d 632 (1980). In our opin ion, such supplementation may also occur at the initial plea hearing as long as: (1) there is a substantial admission of guilt by defendant; (2) defendant is unable to supply a specific fact; and (3) the parties stipulate to the admission of the other evidence.
We are not unmindful of the Supreme Court’s decision in People v Schneff, 392 Mich 15; 219 NW2d 47 (1974), which held that a guilty plea is not properly accepted where the trial court relies on testimony taken at the preliminary examination even where the parties stipulate to the use of such evidence. However, we agree with People v Davis, 109 Mich App 521, 527-529; 311 NW2d 411 (1981), and People v McKnight, 102 Mich App 581; 302 NW2d 241 (1980), that the continued validity of Schneff, supra, is suspect following the Supreme Court’s decision in Guilty Plea Cases, supra, and that, in any event, Schneff, supra, does not bar the use of such evidence only to establish a single fact outside the knowledge of defendant.
In the present case, defendant admitted that, after becoming extremely upset with her daughter, she beat the child with a leather belt and that the beating was long-lasting and severe. However, defendant was not able to describe the nature of the injuries inflicted. It is readily apparent that in child cruelty cases the nature and severity of the injuries inflicted will often be outside the knowledge of the accused. Therefore, we find that it was not error for the plea-taking court to rely on the photographs to establish the missing fact.
Affirmed. | [
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M. F. Cavanagh, J.
In the original appeal of this case we held, inter alia, that the trial court did not err in refusing to allow the defense of comparative negligence to go to the jury where the plaintiff had alleged that the defendant breached its duty of care and caution while employing the plaintiff in an inherently dangerous activity. Brown v Unit Products Corp, 105 Mich App 141, 153-154; 306 NW2d 425 (1981). Defendants Unit Products Corporation and H. F. Campbell Company sought leave to appeal to the Supreme Court. By order of that Court, their application for leave to appeal was held in abeyance pending the Court’s decision in Hardy v Monsanto EnviroChem Systems, Inc, 414 Mich 29; 323 NW2d 270 (1982). Now, in lieu of granting leave to appeal, the Supreme Court has remanded the case to this Court for reconsideration in light of the subsequent decision in Hardy, supra.
In our decision in Brown, supra, we concluded that the defense of comparative negligence would only be available if the defense of contributory negligence had been available, prior to the Supreme Court’s holding in Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979). This ruling is no longer viable in light of the Supreme Court’s recent holding that the defense of comparative negligence is available as a defense in cases where the defense of contributory negligence was not formerly available. Hardy, supra, p 38.
In Hardy, the Supreme Court was faced with the issue of whether the defense of comparative negligence was available when a worker alleged negligence in the failure of his or her employer to provide adequate safety devices on the job. The Court concluded that the public policy of promoting safety in the workplace would be enhanced by the application of the principles of comparative negligence. 414 Mich 39. The Court based its conclusion upon two principal considerations: (1) if a worker is charged with some responsibility for his or her own safety-related behavior, it will give him or her a financial incentive to act in a reasonable and prudent fashion; and (2) application of comparative negligence will reward safety-conscious employers, who should not be held liable for damages in excess of the amount causally related to any negligence on their part. 414 Mich 41. The Court repeated its conclusion in Placek, supra:
" 'What pure comparative negligence does is hold a person fully responsible for his or her acts and to the full extent to which they cause injury. That is justice.’ 405 Mich 661.” 414 Mich 45.
To hold otherwise, the Court concluded in Hardy, would be clearly unjust.
We are persuaded that Hardy also suggests that the defense of comparative negligence should be available in situations involving inherently dangerous activities. Although the theory behind the inherently dangerous activity doctrine is similar to that of strict liability, the doctrine does not require the imposition of absolute liability. Vannoy v City of Warren, 15 Mich App 158, 163; 166 NW2d 486 (1968), lv den 382 Mich 768 (1969), remanded on other grounds 382 Mich 771 (1969). The fact that the employer in these circumstances may not delegate his or her duty of care and caution need not relieve the worker of the duty to take care in a prudent fashion in the light of known risks and dangers. Here, as in Hardy, the application of comparative negligence principles to workplace negligence situations encourages safer behavior by both employers and workers and results in a more equitable resolution of injuries and damages when concurrent negligence exists on the part of both the employer and the worker.
We thus hold that the trial court erred in refusing to allow the defense of comparative negligence to go to the jury. We reaffirm our holdings with respect to the other issues previously decided. The case is reversed and remanded to the trial court for proceedings consistent with this opinion.
Bronson, P.J., concurred. | [
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D. E. Holbrook, Jr., P.J.
This dispute arose out of a conflict between the respective rights of a condominium unit owner and the condominium association and its board of directors. The condominium involved is Riverside Park Place, a 60-unit highrise apartment complex in Ann Arbor. Plaintiff, the owner of a unit in that condominium, appeals as of right the trial court’s orders upholding defendant board’s decision denying plaintiffs request to enclose the balcony of plaintiffs unit, ordering plaintiff to submit to an inspection of the condominium unit, and finding Dr. Cohan in contempt for refusing to submit to the inspection. Plaintiff additionally appeals the trial court’s award of attorney fees.
First, plaintiff claims the trial court erred in upholding the board’s decision denying plaintiffs request to enclose the balcony. For purposes of this appeal, we assume arguendo that the board had authority to consider plaintiffs request to enclose the balcony. The inquiry then is whether the board properly applied the "rule of reason” in denying the request. Hidden Harbour Estates, Inc v Norman, 309 So 2d 180 (Fla App, 1975). Under the "rule of reason”, a condominium association’s board must demonstrate that it acted reasonably in denying a unit owner’s special request.
While Michigan has little case law on the subject of this dispute, Michigan has enacted a detailed condominium statute which expressly states that:
"A co-owner shall not do anything which shall change the exterior appearance of a condominium unit or of any other portion of the condominium project, except to the extent and subject to the conditions as the condominium documents may specify.” MCL 559.147(1); MSA 26.50(147X1).
Under art VI, § 3, of the bylaws of Riverside Park Place Condominium (hereinafter bylaws), the board is given authority to approve alterations to common elements (Master Deed, art IVb[2] defines balconies as limited common elements), but only if such alterations "do not impair * * * the appearance of the condominium”.
In Sterling Village Condominium v Breitenbach, 251 So 2d 685 (Fla, 1971), the plaintiff brought suit to enjoin the defendant from installing glass "jalousies” in place of wire screening on two balconies. There, as here, the balconies were specifically defined in the master deed as "limited common elements”. The court found that "the substitution of glass jalousies for wire screen was a material and substantial alteration”. Sterling, supra, p 688. In making this determination, the court noted that the substitution "is a change in the elements and specifications of the enclosures” and that "this change affects the function, use and appearance of the building”. Sterling, supra, p 687.
We find Sterling to be controlling here. Our case is even more appropriate for a finding of a material alteration than Sterling. There, the balconies were at least surrounded by some material before the unit owner saw fit to add glass enclosures. Here, plaintiff proposed to add glass to open balconies where there is presently no enclosure material at all. The alteration in the present case is therefore an even more significant change of function and element than in Sterling. Certainly, plaintiffs proposed alteration is far more substan tial in nature than the other types of alterations referred to in Bylaws, art VI, § 3, which prohibits, without board approval, "the erection of antennas, lights, aerials, awnings, doors, shutters, or other exterior attachments or modifications”.
These latter types of alterations, ornamental or accessory in nature, have far less impact on the appearance of the balcony than plaintiff’s proposed glass enclosure, a structural change which would encompass the entire balcony.
We agree with the court in Sterling, supra, p 688 that:
"Every man may justly consider his home his castle and himself as the king thereof; nevertheless his sovereign fiat to use his property as he pleases must yield, at least in degree, where ownership is in common or cooperation with others. The benefits of condominium living and ownership demand no less. The individual ought not to be permitted to disrupt the integrity of the common scheme through his desire for change, however laudable that change might be.”
After reviewing the record, we conclude the board did not act unreasonably or arbitrarily in denying plaintiff’s request. Accordingly, the trial court did not err in upholding their decision.
Plaintiff next contends that the trial court erred in upholding defendants’ request to inspect plaintiff’s unit. Plaintiff argues that until defendants can establish an actual violation, no inspection or entry is justified. We disagree. The condominium documents do not expressly grant a right to the board to request access for purposes of inspection for suspected violations. However, we hold such a right is "impliedly authorized by various documents and by the inherent realities of a condomin ium project”. The board must, at reasonable times, have the right to request an inspection of the premises so as to ensure compliance with the terms of the condominium agreement, statutes, rules and regulations. This is true where, as in the case herein, the board merely suspects a violation may have occurred but has not yet been able to prove its existence. If defendants had to first prove the existence of a violation within a unit before requesting an inspection of the unit, defendants would be unable to guarantee the safety and structural integrity of the building. This practical consideration supports defendants’ interpretion of Bylaws, art XI, § 1(c). In short, plaintiffs interest in privacy must yield to defendants’ interest in monitoring unsafe conditions which may be hidden inside various units. In Hidden Harbour Estates, supra, pp 181-182, that court recognized that:
"[I]nherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic subsociety of necessity more restrictive as it pertains to use of condominium property than may exist outside of the condominium organization. The Declaration of Condominium involved herein is replete with examples of the curtailment of individual rights usually associated with private ownership of property.”
We agree and hold that the trial court’s order requiring plaintiff to submit to an inspection of the unit was proper._
Since the trial court’s inspection order was not reversibly erroneous, plaintiffs disobedience of that order was unjustified and the contempt proceedings were appropriate. The contempt shall stand until such time that Dr. Cohan purges himself by permitting the scheduled inspection. We need not address plaintiffs claim that Dr. Katz is biased and should not conduct the inspection. This issue is moot since Katz is no longer available to conduct such inspection and defendants have agreed to designate another person, subject to the review of the trial court.
Finally, plaintiff contends that the trial court erred in awarding attorney fees in favor of defendants. There were two aspects to the action before the trial court. First, plaintiff filed a complaint, alleging that defendants improperly denied plaintiffs request to enclose the balcony. In this regard plaintiff cites Papalexiou v Towers West Condominium, 167 NJ Super 516; 401 A2d 280 (1979), for the proposition that attorney fees may not be awarded to a condominium association where the action is brought by a unit owner rather than the association. We agree. In the present case, as in Papalexiou, the complaint required the association to defend its conduct; the association was not enforcing an action against plaintiff. To the extent that the attorney fees awarded to defendant arose out of the defense to plaintiffs complaint, the fees were improper under Papalexiou.
The remaining portion of the action before the trial court involved defendant’s counterclaim requesting an opportunity to inspect plaintiffs unit. As stated earlier, the trial court properly ordered plaintiff to submit to an inspection. Plaintiffs subsequent refusal to submit to that order was by itself a sufficient "default” to justify an award of attorney fees to defendants. See Bylaws, art XI, § (l)(b); MCL 559.206(b); MSA 26.50(206)(b). We hold the trial court properly awarded costs and attorney fees incurred by defendants in prosecuting their counterclaim for inspection. Accordingly, we remand this case to the trial court with instructions to reduce its award of attorney fees to those incurred in the course of prosecuting the counterclaim only.
Affirmed as modified. Remanded for proceedings consistent herewith. No costs, neither party having fully prevailed.
See MCL 559.147(1); MSA 26.50(147); 1979 AC, R 559.509; Bylaws, art VI, § 3; Bylaws, art VI, § 12; Bylaws, art XI, § í(c). | [
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D. E. Holbrook, Jr., J.
This matter was previously before this Court, at which time we reversed defendant’s conviction and remanded to the trial court for entry of a judgment of conviction on the reduced charge , of voluntary manslaughter and resentencing with an option being afforded the people to retry defendant on the charge of second-degree murder. We did so because of error by the trial court in its determination of the law on qualified self-defense. Said case is reported in 100 Mich App 418; 298 NW2d 750 (1980).
Thereafter, on April 1, 1981, the Supreme Court remanded the case to us for resolution of issues raised by the defendant but not addressed in our original opinion. 411 Mich 867 (1981). The reason for our failure to address defendant’s remaining allegations of error in our original opinion was because we felt that resolution of the aforesaid was dispositive.
Initially we turn to the final issue raised by defendant in his original brief which is a claim that he is entitled to a new trial because testimony was taken in his absence, without waiver, while he was incarcerated in the Wayne County Jail. On Tuesday, April 10, 1976, the court recessed for the day with the intention of resuming testimony the following morning. Defendant was returned to the Wayne County Jail. In defendant’s absence John Bozigar was recalled as a witness and gave further expert testimony concerning the direction of the bullets as they passed through a curtain which was located in the house which was the scene of the alleged offense. Being absent from the court, it is apparent that defendant was not present during this testimony. On the following morning a stipulation of fact was entered into by the defense counsel and the prosecutor regarding the substance of the testimony taken the prior day. The record reflected that the court observed that the defendant nodded his head in apparent agreement with that stipulation. As a curative measure the trial judge proposed that there be a stipulation as to the facts that he thought the witness established. The following occurred:
"Miss Clark [Assistant Prosecutor]: I assume the stipulation would be that he examined the curtain from a hanging position and although the bullets did enter the shiny side of the curtain, it was his opinion that they came from the dining room toward the living room.
"The Court: Is that the stip?
"Mr. Burgess [defense counsel]: Yes.
"The Court: You and your client agree with that?
"Mr. Burgess: Yes.
"The Court: Let the record show the defendant nodded.
"Mr. Burgess: Thank you very much.”
It is therefore necessary for us to determine if the defendant waived his presence at trial on the day following his absence. While there are few Michi gan cases which address the requirements of a valid waiver of a defendant’s presence at trial, the standard is set forth in People v Ewing, 48 Mich App 657; 211 NW2d 56 (1973), which quoted from People v Grimmett, 388 Mich 590, 598; 202 NW2d 278 (1972):
" 'Waiver is defined in Johnson v Zerbst, 304 US 458, 464; 58 S Ct 1019, 1023; 82 L Ed 1461, 1466 (1938), as "an intentional relinquishment or abandonment of a known right or privilege.” The Court added, " 'courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and * * * we 'do not presume acquiescence in the loss of fundamental rights.’ ” Thus, waiver consists of two separate parts: 1) a specific knowledge of the constitutional right; and 2) an intentional decision to abandon the protection of the constitutional right. Both of these elements must be present and if either is missing there can be no waiver and no finding of consent.’ ” Ewing, supra, 660.
The record before us fails to disclose that the defendant had specific knowledge of his constitutional right to be present nor does it disclose an intentional decision to abandon the protection of his constitutional right.
Since if either of the foregoing is missing there can be no waiver and no finding of consent, it is apparent to us that defendant’s conviction must necessarily be reversed. Moreover, we do not deem a nod of the head to constitute acquiescence as to either his knowledge of constitutional rights nor of his decision to abandon the protection thereof. The trial judge should have specifically addressed the defendant and advised him that he had a constitutional right to be present while the testimony was being taken on the preceding day and, further, should have asked the defendant if it was his decision to abandon such right. We cannot con done what took place in the instant case on a silent record indicating little more than a nod of the head. There should have been verbal questions and verbal answers.
As to defendant’s remaining allegations of error, not heretofore considered, we have thoroughly reviewed and examined same and find them to be without merit. People v Oster, 67 Mich App 490, 495; 241 NW2d 260 (1976); People v Moss, 70 Mich App 18; 245 NW2d 389 (1976); People v Van Horn (On Remand), 64 Mich App 112, 115; 235 NW2d 80 (1975); People v Newby, 66 Mich App 400; 239 NW2d 387 (1976); People v Mitchell, 402 Mich 506, 513; 265 NW2d 163 (1978); People v Eisenberg, 72 Mich App 106; 249 NW2d 313 (1976); People v Bright, 50 Mich App 401; 213 NW2d 279 (1973).
Reversed and remanded for trial on the charge of second-degree murder. | [
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Beasley, J.
On August 27, 1979, plaintiff, Auto-Owners Insurance Company, filed an action for contribution against defendant, Southern Michigan Mutual Insurance Company. Plaintiff sought a judgment in the amount of $17,679.92 for defendant’s pro-rata share of a settlement paid by plaintiff to an insured for damages sustained to a house insured by both plaintiff and defendant. After defendant’s motion for summary judgment grounded upon GCR 1963, 117.2(1) was denied, the parties stipulated to have the trial court decide the matter on the pleadings, briefs, affidavits, and depositions. On September 28, 1981, the trial court awarded judgment in favor of plaintiff. Defendant appeals as of right.
The record reveals that on June 25, 1977, defendant issued a homeowner’s insurance policy of one year’s duration to James Elrod in the amount of $22,000. Shortly thereafter, on August 4, 1977, Elrod obtained a one-year policy of insurance through plaintiff on the same premises with coverage in excess of $50,000. As a result of the insured property being severely damaged by a fire on February 12, 1978, plaintiff paid a total of $50,514.06 to Elrod for his property losses.
On the basis that two insurance policies covered the damaged premises, plaintiff claimed in the trial court that the loss should be apportioned between the two insurance companies. In our state, where two or more insurance policies cover the same property, an insurance company’s obligation to the insured is limited to the proportion of the loss that the amount insured by the company bears to the entire amount of insurance.
Where, as here, two insurance policies cover the damaged property, an insurance company may either institute a declaratory judgment action to determine the amount of its liability or seek contribution subsequent to paying the insured under the insurance policy.
In response to plaintiff’s complaint, defendant claimed that it was not liable for contribution to plaintiff on the basis that the insurance policy which it issued to the owner of the damaged property was automatically cancelled by substitution when the owner obtained a subsequent policy of insurance from plaintiff.
The insured, James Elrod, testified in his deposition that he purchased the subject property in 1975 for $22,000. When he secured the second insurance policy on August 4, 1977, he did not intend to "double insure” the premises. He further testified that he did not cancel his policy with defendant prior to the fire, defendant did not tender a premium refund, and he believed that his agent at plaintiffs company would cancel the policy issued by defendant.
In its written opinion, the trial court found that: (1) the insurance policy provided by defendant to Elrod did not prohibit the purchase of another policy, (2) the acquisition of a second insurance policy did not automatically cancel the policy issued by defendant, and (3) Elrod and defendant did not mutually agree to cancel the insurance policy.
In this matter of first impression, we are called upon to decide if the taking out of a new policy of property insurance by a property owner, who has the intention that it will supersede the existing insurance policy, constitutes a cancellation of the existing insurance where the original policy does not provide for automatic cancellation upon the insured’s purchase of another policy on the property.
A similar issue was addressed by the North Carolina Supreme Court in Baysdon v Nationwide Mutual Fire Ins Co. There, the court held that, unless an insured communicates his intention to cancel the policy of the company which orginally insured him, his purchase of a new policy covering the same risk does not act as a unilateral cancellation of the earlier policy, even if the insured intended to cancel the policy.
Likewise, in MFA Mutual Ins Co v Southwest Baptist College, Inc, it was held that an earlier policy of insurance was not automatically can-celled by the purchase of another policy. That court relied primarily on the fact that the original policy did not contain a clause which provided for termination upon the acquisition of another policy.
The following pertinent clauses are found in the homeowner’s policy provided by defendant to the insured, James Elrod:
"Apportionment-Section 1:
"Loss by fire or other perils not provided for in 6b below:
"This Company shall not be liable for a greater proportion of any loss from any peril or perils included in this policy than:
"(1) the amount of insurance under this policy bears to the whole amount of fire insurance covering the property, or which would have covered the property except for the existence of this insurance * * *
"(2) for a greater proportion of any loss than the amount hereby insured bears to all insurance, whether collectible or not, covering in any manner such loss or which would have covered such loss except for the existence of this insurance.
"Pro rata liability. This Company shall not be liable for a greater proportion of any loss than the amount hereby insured shall bear to the whole insurance covering the property against the peril involved, whether collectible or not.
"Other Insurance: Other insurance covering the described dwelling building (except insurance against perils not covered by this policy) is not permitted.”
Like the trial court, we find that the policy furnished by defendant did not provide for automatic cancellation in the event that the property owner acquired a subsequent policy. The policy’s clause which states that "[o]ther insurance covering the described dwelling building * * * is not permitted” does not inform the property owner of the eifect of a subsequent policy. Furthermore, two of the quoted clauses indicate that defendant limited its liability in case the insured owned more than one policy covering the same risk.
Our reading of the Baysdon case, supra, convinces us that the mere procurement of substitute insurance by a property owner with the intent to replace the existing insurance does not, ipso facto, constitute a cancellation of the existing insurance policy. Additional support for this holding is contained in the following passage:
"A number of cases give some support to the proposition that the taking out of a new policy of property insurance, with the intention on the part of the property owner that it take the place of the existing insurance, in and of itself constitutes a cancellation of the existing insurance. However, other, more recent, decisions completely reject the view that the mere taking out of new insurance on property already insured in and of itself acts as a cancellation of the prior policy. Such rule applies also to a disability income protection policy. It appears that the overwhelming weight of modern authority favors the rule that a loss should be divided on a pro-rata basis where there is overlapping coverage and where the parties have not agreed to the contrary.
"Even where the insured does intend to cancel an existing policy and is in the process of obtaining substi tute coverage, notice is required to fix the date when the old policy will terminate.” (Footnotes omitted.)
Since the policy furnished by defendant to Elrod had not been cancelled by mutual consent or an affirmative policy clause, we find that the insured on the date his property was damaged had overlapping insurance policies. Accordingly, we affirm the judgment awarded by the trial court.
Affirmed.
See Standard Policy Form at MCL 500.2832; MSA 24.12832, line 86 et seq.
State Farm Fire & Casualty Co v Farmers Ins Exchange, 80 Mich App 567; 264 NW2d 62 (1978).
259 NC 181; 130 SE2d 311 (1963).
381 SW2d 797 (Mo, 1964).
In accord with the holdings in Baysdon and MFA Mutual Ins Co, supra, are, among others, Glens Falls Ins Co v Founders’ Ins Co, 209 Cal App 2d 157; 25 Cal Rptr 753; 3 ALR3d 1058 (1962); Ector v American Liberty Ins Co, 138 Ga App 519; 226 SE2d 788 (1976); Franklin v Carpenter, 309 Minn 419; 244 NW2d 492 (1976); Northern Ins Co v Mabry, 4 Ariz App 217; 419 P2d 347 (1966). Contra, Strauss v Dubuque Fire & Marine Ins Co, 132 Cal App 283; 22 P2d 582 (1933); Bache v Great Lakes Ins Co, 151 Wash 494; 276 P 549 (1929).
Our holding here does not, of course, preclude an insurance company from raising other defenses to the policy such as fraud, deceit, cancellation by mutual consent, and/or an affirmative termination clause in the policy.
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D. C. Riley, P.J.
These cases involve the scope of the doctrine of governmental immunity. Specifically, the issues here are whether the administration and supervision of a speech therapy program by a public school is a governmental function within the meaning of MCL 691.1407; MSA 3.996(107), and if so, whether the school principal, psychologist, and speech therapist who are directly responsible for the administration and supervision of that program are also insulated with the cloak of governmental immunity.
Plaintiffs’ cause of action arises out of an alleged misdiagnosis of Maureen Brosnan’s "language impairment”. The facts of this case, as gleaned from a reading of plaintiffs’ complaint, are as follows. Prior to entering kindergarten in the Livonia public school system in September of 1977, Maureen was given a speech evaluation test by defendant Ken Thompson, who is a speech therapist for the defendant Livonia Board of Education. Thompson diagnosed Maureen as having a "delayed articulation” problem. Upon entering kindergarten, Maureen began receiving training and therapy associated with such a problem. This treatment lasted for nearly two years. During this period, however, Maureen was not suffering from a "delayed articulation” problem but rather from a "language impairment”.
Maureen’s parents, Bridget and Maurice Bros-nan, individually, and Bridget, as next friend of Maureen, brought an action against the Livonia Public Schools, Livonia Board of Education, and Ken Thompson, as well as against the principal of Maureen’s school, Venna Johnson, and the school psychologist, Charles Ruckhaber. Plaintiffs alleged, in part, that defendants failed to use reasonable care in maintaining diagnostic procedures and failed to properly diagnose Maureen’s language impairment.
The trial court granted a motion for summary judgment pursuant to GCR 1963, 117.2(1), filed by two of the defendants, the Livonia Public Schools and the Livonia Board of Education, holding that they were immune from tort liability pursuant to the doctrine of governmental immunity. Plaintiffs appeal as of right in docket number 60170. The trial court also denied a motion for summary judgment filed by the three remaining individual defendants which was also brought under rule 117.2(1). The court’s denial was premised on the ground that they were not entitled to governmen tal immunity as the activity in question did not go to the "traditional activities of running a school system and is not necessarily of the essence of running the school system”. On April 29, 1982, this Court granted the individual defendants’ application for leave to appeal in docket number 61739. These two appeals were subsequently consolidated.
A motion for summary judgment pursuant to GCR 1963, 117.2(1), failure to state a claim upon which relief can be granted, tests the legal sufficiency of a plaintiffs claim. It is the duty of the reviewing court to accept as true all well-pled facts in the complaint and to determine whether these claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Duhame v Kaiser Engineering of Michigan, Inc, 102 Mich App 68, 71; 300 NW2d 737 (1980), lv den 411 Mich 955 (1981).
The precise question in this case is one of first impression. Several recent decisions of this Court have held that the operation of a public school is a governmental function. Bozarth v Harper Creek Bd of Ed, 94 Mich App 351; 288 NW2d 424 (1979) (screening, hiring, and supervision of school teachers); Deaner v Utica Community School Dist, 99 Mich App 103; 297 NW2d 625 (1980) (conducting a combative sports physical education course); Churilla v East Detroit School Dist, 105 Mich App 32; 306 NW2d 381 (1981) (administration and supervision of a junior high school football program); Smith v Mimnaugh, 105 Mich App 209; 306 NW2d 454 (1981) (failure to provide sufficient crossing guards or overhead crosswalk in front of an elementary school); Everhart v Roseville Community Schools, 108 Mich App 218; 310 NW2d 338 (1981) (operation of an elementary school playground); Gaston v Becker, 111 Mich App 692; 314 NW2d 728 (1981) (hiring and supervising of public school teachers); Weaver v Duff Norton Co, 115 Mich App 286; 320 NW2d 248 (1982) (operation of a building trades class pursuant to a vocational education program); Regulski v Murphy, 119 Mich App 418; 326 NW2d 528 (1982) (construction of a home pursuant to a building trades class). However, no case has considered the question of whether a public school district’s administration and supervision of a speech therapy program is a governmental function.
MCL 691.1407; MSA 3.996(107) provides in part:
"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function.”
The task of determining whether a particular activity of government is a "governmental function” within the meaning of the quoted statute has proven to be a continuing source of difficulty for both bench and bar of this state. However, recent decisions of this Court have consistently begun their analysis of this question with a review of the Supreme Court’s holdings in Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978), and Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978). In Parker, the Court held that the operation of a public governmental hospital is not a governmental function, while in Perry, the Court held that the operation of a state mental hospital is. While these two decisions might appear at first glance to be inconsistent, a closer examination reveals that the Supreme Court has developed three separate classification schemes or tests for determining whether a particular activity is a governmental function. In reviewing claims of governmental immunity, the Court has consistently adhered to these tests. Although the unfortunate passing of Justice Moody and the recent changes in the membership of the Supreme Court cast some doubt on the continued validity of Parker, supra, and Perry, supra, our holding today is governed by the rationale of these decisions.
Former Justice Fitzgerald and Justices Kavanagh and Levin defined the term "governmental function” to include only those activities "sui generis governmental — of essence to governing”. Under this "sui generis” test, the scope of governmental immunity is limited to those activities which are of such a "peculiar nature” that they could only be done by government.
The proponents of the "sui generis” test specifically rejected the "common good of all” test favored by former Chief Justice Coleman and Justices Ryan and Williams.
In casting the crucial "swing vote” in both Parker, supra, and Perry, supra, the late Justice Moody utilized a slightly different approach to the "sui generis” test, suggesting:
"[A]s a basic guideline, the crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government. Unless liability would be an unacceptable interference with government’s ability to govern, activities that fall outside this perimeter, although performed by a government agency, are not governmental functions and therefore not immune.” Parker, supra, p 200.
Justice Moody also rejected the Fitzgerald bloc’s conclusion, as stated in its dissenting opin ions in Thomas v Dep’t of State Highways, 398 Mich 1; 247 NW2d 530 (1976), that a function is not governmental unless the particular activity involved has "no common analogy in the private sector”.
As Justice Moody’s analysis suggests that an essential government activity may have a common analogy in the private sector, his interpretation of the "sui generis” test clearly extends immunity to a broader range of government activities than would the Fitzgerald bloc. See Littlejohn & DeMars, Governmental Immunity After Parker and Perry: The King Can Do Some Wrong, 1982 DC L Rev 1, 17.
Moreover, it is of singular importance to the case at bar that Justice Moody’s holding in Perry, supra, i.e., that the operation of a state mental hospital is a governmental function, was based, at least in part, upon the fact that the government played a pervasive role in the area of mental health and that the Legislature had expressed a public policy in favor of fostering treatment and care for the mentally handicapped.
In determining whether a particular governmental activity is a governmental function, this Court looks to the precise activity giving rise to the plaintiffs claim (here, the misdiagnosis of a language impairment and negligent administration of speech therapy) rather than the overall or principal department operations (here, the operation of an elementary school). Galli v Kirkeby, 398 Mich 527, 536; 248 NW2d 149 (1976); Weaver v Duff Norton Co, supra.
Assuming, without deciding, that the private sector is capable of administering speech tests and speech therapy to all of the elementary school students in the state who suffer from various speech impediments, it is still clear that a majority of the Justices who voted in Parker, supra, and Perry, supra, would hold that the defendants in this case were involved in a governmental function.
In Parker, supra, p 204, Justices Ryan, Williams, and Coleman held that the operation of a municipally owned general hospital was a governmental function, stating:
"Manifestly, the examination, diagnosis and treatment of patients at a public hospital are activities intending to promote the general public health and are exercised for 'thé common good of all’.”
See, also, Perry, supra, p 213.
Similarly, in the case at bar, it must be said that the examination, diagnosis, and treatment of students at a public elementary school are activities intended to promote the general public health and are exercised for "the common good of all”. These three Justices, therefore, would hold that defendants are immune from liability for their negligence, if any, in performing that function in the case at bar.
Moreover, we are persuaded that under Justice Moody’s version of the "sui generis” test, the defendants’ complained-of activity in the case at bar was a governmental function. Significant to our conclusion in this regard is the fact that MCL 380.1751; MSA 15.41751 provides that a school district must provide special education programs and services for handicapped persons in its district. MCL 380.4; MSA 15.4004 defines "handicaps” to include mental, physical, emotional, behavioral, sensory, and speech handicaps. Further, the defendants’ participation in the speech program was consistent with our constitutionally mandated pub- lie policy in favor of services for handicapped persons. Const 1963, art 8, § 8. Finally, it must be noted that the government plays a pervasive role in the area of public education and that the number of private schools available to deal with the educational needs of the public is inadequate. See Bokano v Wayne-Westland Community Schools, 114 Mich App 79; 318 NW2d 613 (1982).
Thus, we conclude that the defendants Livonia Board of Education and Livonia Public Schools were engaged in a governmental function and, therefore, the trial court was correct in granting their motion for summary judgment.
A question remains, however, as to whether the trial court erred in denying the individual defendants’ motion for summary judgment. There is a split of authority within the Court as to the proper analysis to employ for determining whether public employees are protected by governmental immunity. One school of thought focuses on whether the employee was carrying out a discretionary or ministerial act. Under this approach, a public employee is only immune from tort liability for those acts which are discretionary in nature. O’Toole v Fortino, 97 Mich App 797, 811; 295 NW2d 867 (1980). On the other hand, other panels of this Court have adhered to a test where the question is merely whether the public employees were acting within the scope of their employment. If so, they cannot be held liable. Gaston v Becker, supra.
We find it unnecessary to decide to which school of thought we will subscribe as it is clear that under either approach the individual defendants were entitled to the defense of governmental immunity.
As discussed above, the operation of a speech therapy program in a public school is a govern mental function. It is undisputed that the individual defendants were acting within the scope of their employment during the period when the alleged acts of negligence occurred and, thus, under Gaston, supra, they were entitled to governmental immunity.
The individual defendants would also prevail under the discretionary-ministerial test as authorized in O’Toole, supra, as the acts involved were surely discretionary. The administration and supervision of a speech therapy program necessarily involves the exercise of subjective judgment based on the individual’s special training, knowledge, and skills. See Cook v Bennett, 94 Mich App 93, 100; 288 NW2d 609 (1979).
Thus, we conclude that the trial court erred in denying the individual defendants’ motion for summary judgment.
Affirmed in part; reversed in part; and remanded for proceedings not inconsistent with this opinion. No costs, a public issue being involved. | [
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Per Curiam.
Both plaintiff and defendants Detroit General Hospital and City of Detroit appeal as of right from a jury verdict in favor of plaintiff in this medical malpractice action. The jury found no cause of action against defendant Lucas and awarded a $50,000 verdict against the City of Detroit and Detroit General Hospital, reducing it by 50% due to plaintiffs comparative negligence.
Defendants appeal the trial court’s admission of testimony of plaintiffs medical expert witness, Dr. George Miller, regarding the applicable standard of care in the emergency room treatment of gunshot wounds. Plaintiff cross-appeals the trial court’s instruction to the jury on comparative negligence.
In Michigan, the test for determining whether a witness is qualified as an expert witness in a medical malpractice action is whether the witness is familiar with the appropriate standard of care. Swanek v Hutzel Hospital, 115 Mich App 254, 257; 320 NW2d 234 (1982); Francisco v Parchment Medical Clinic, PC, 407 Mich 325, 327; 285 NW2d 39 (1979). The witness must possess the necessary learning, knowledge and skill, or practical experience that would enable him or her to competently testify about that area of medicine. Siirila v Barrios, 398 Mich 576, 591; 248 NW2d 171 (1976); Swanek, supra. This Court will not reverse a trial court’s ruling on the qualifications of an expert witness absent an abuse of discretion. Wood v Posthuma, 108 Mich App 226, 230; 310 NW2d 341 (1981); Swanek, supra.
Defendants argue that Dr. Miller’s 20-year absence from an emergency room setting precluded him from testifying on the standard of care applicable in a city hospital emergency room. Defendants further argue that no evidence was introduced to establish that Dr. Miller was familiar with the treatment of gunshot wounds. We do not agree.
In Haisenleder v Reeder, 114 Mich App 258; 318 NW2d 634 (1982), plaintiffs filed a medical malpractice action against a hospital and two doctors alleging the negligent treatment of their 16-year-old son, resulting in his death. The decedent had been rushed to the emergency room due to symptoms associated with Reyes Syndrome. At trial, plaintiffs sought to introduce the expert testimony of Dr. Baublis, a medical doctor, who had last practiced in an emergency room setting while a resident during the years 1956 through 1959. The trial court refused to admit the doctor’s testimony on the ground that his knowledge of the standard of care applicable in an emergency room setting was theoretical only and not the result of recent, personal experience in an emergency room. This Court reversed the trial court’s ruling in Haisenleder, holding that the witness’s absence from the emergency room setting from 1959 to 1972 was not dispositive of his ability to testify about the appli cable standard of care. Dr. Baublis had also testified that he was engaged in consultation work and stated that he was familiar with the applicable standard of care. 114 Mich App 265.
The ruling of Haisenleder is applicable to the present case. Although Dr. Miller has long been removed from emergency room practice, he did testify about his many years of experience as a surgeon, including his extensive experience in orthopedic surgery. Dr. Miller testified that he was familiar with the standard of care applicable in this case. There is nothing in the record to suggest that the trial court abused its discretion in admitting the testimony of Dr. Miller as an expert medical witness. Dr. Miller’s 20-year absence from an emergency room setting goes to the weight of his testimony and not to its admissibility.
Plaintiff has filed a cross-appeal challenging the trial court’s reading of the standard jury instruction on comparative negligence, SJI 11.01.
In Michigan, pertinent portions of the Michigan Standard Jury Instructions must be given in every civil action so long as the instruction is applicable and so long as it accurately states the applicable law. GCR 1963, 516.6(2); Javis v Ypsilanti Bd of Ed, 393 Mich 689, 697; 227 NW2d 543 (1975).
In the present case, defendants introduced evidence which, if believed, established that non-life-threatening bullet wounds are routinely observed for a period of weeks before a final decision is made to remove a bullet or leave it in place. Defendants also introduced evidence which, if believed, established that plaintiff had been instructed to return to the hospital for a check-up three weeks after the shooting but that he failed to do so. Dr. Krome testified that if plaintiff had continued his periodic check-ups as instructed, it is possible that the bullet would have subsequently-been removed. This evidence sufficiently establishes the applicability of an instruction on comparative negligence.
Moreover, the standard jury instruction given, SJI 11.01, accurately stated the applicable law in Michigan. With the adoption of the pure form of comparative negligence in this state in Placek v Sterling Heights, 405 Mich 638, 662; 275 NW2d 511 (1979), liability for damages in a negligence action is apportioned on the basis of the relative fault of plaintiff and defendants. The trial court did not err in giving the standard jury instruction on comparative negligence.
The judgment is affirmed and the case is remanded to the trial court for a determination of the amount, if any, of attorney fees to which plaintiff may be entitled pursuant to the local court rule, WCCR 403.15(d).
Affirmed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. | [
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R. B. Burns, J.
Plaintiff, acting in propria per sona, was granted a delayed application for leave to appeal from an April 16, 1981, circuit court order granting summary judgment to defendant, pursuant to GCR 1963, 117.2(3). Defendant filed a motion to affirm pursuant to GCR 1963, 817.5(3), which this Court denied on September 15, 1982.
Plaintiff’s complaint alleged that the Marquette Prison administration reneged on a promise to allow him to transfer his legal papers and materials with him to Kinross Correctional Facility. Plaintiff’s legal materials exceeded the institutional transfer limits as set out in a Bureau of Correctional Facilities policy directive, which allows a prisoner to transfer one duffel bag and one foot locker. Plaintiff’s complaint sought an ex parte temporary restraining order preventing defendant from denying plaintiff access to and actual possession of the legal materials which he was not allowed to transfer with him to Kinross Correctional Facility.
The trial court dismissed without opinion plaintiff’s complaint on April 16, 1981. Plaintiff now appeals, claiming that he was denied due process of law because the trial court failed to consider his motion for summary judgment and arguments. Plaintiff claimed that the affidavits filed by defendant in support of its motion for summary judgment did not comply with the pertinent court rules, GCR 1963, 117.3 and 116.4, and that defendant’s motion for summary judgment failed to state a valid defense to the complaint because the policy directive had not been properly promulgated as a rule in accordance with the Administrative Procedures Act, and was not proper authority upon which the court could rely in dismissing his complaint.
We find that any defects in the affidavits submit ted were not prejudicial. Plaintiffs claim is one which would place form over substance. While it is true that the affidavits do not specifically state that they are made on personal knowledge and that the affiant, if sworn as a witness, can testify competently to the facts contained therein, the affidavits show on their face that the affiants were speaking from personal knowledge and would be able to testify competently if sworn as witnesses. Therefore, the court rules were followed although not in the express language of GCR 1963, 117.3 and 116.4.
However, we find merit in plaintiffs claim that the circuit court erroneously relied upon the Department of Corrections policy directive. The policy directive was not promulgated as a rule within the meaning of the Administrative Procedures Act as defined in MCL 24.207; MSA 3.560(107), or that of a properly adopted guideline pursuant to MCL 24.224; MSA 3.560(124). The trial court erred in relying upon the policy directive as a departmental rule when it has not been officially adopted as a rule or even a guideline.
According to MCL 791.206; MSA 28.2276, the director of the Department of Corrections, with the approval of the commission, "shall promulgate rules and regulations” to provide "for the management and control of state penal institutions”. Because the policy directive was not properly promulgated pursuant to the Administrative Procedures Act, it is without legal authority. The rule-making procedures of the Administrative Procedures Act may not be circumvented. County of Delta v Dep’t of Natural Resources, 118 Mich App 458; 325 NW2d 455 (1982). See also Mallchok v Liquor Control Comm, 72 Mich App 341; 249 NW2d 415 (1976).
Therefore, although defendant’s conduct is certainly not egregious, as plaintiff was even allowed to take two extra briefcases full of legal materials with him, in the absence of a properly adopted rule or regulation, plaintiff is entitled to take all of his legal materials with him when he is transferred from one prison to another.
Plaintiffs claim that his motions were not considered is without merit, as it appears that the motions were considered and denied. Furthermore, plaintiff’s claim that he is denied access to the courts fails because he has access through the mail and his status as a prisoner was presumably conferred through due process of law.
Reversed and remanded to the trial court for proceedings consistent with this opinion. | [
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D. F. Walsh, J.
Defendant City of Warren Police and Fire Civil Service Commission affirmed the decision of defendant Police Commissioner Charles L. Groesbeck to deny permanent employment to probationary police officer plaintiff Mark Szymanski. On appeal, the circuit court affirmed. Plaintiff now appeals the circuit court decision.
Plaintiff’s one-year term as City of Warren probationary police officer began in January, 1980. On January 23, 1981, plaintiff was notified in a personnel order from defendant police commissioner that based on "unsatisfactory reports” and "collective recommendation”, he would not receive a permanent appointment. Plaintiff requested a hearing before defendant civil service commission. He also requested and received the contents of his personnel file.
At the February 18-19 hearing, plaintiff moved to dismiss the termination notice because he had not been given written notice of specific charges of misconduct. The commission ruled that there was no statutory requirement that a person in plaintiff’s position be given such notice. Following the testimony of several witnesses, the commission ruled that there was competent, material and substantial evidence supporting the denial of permanent employment to plaintiff. The commission discerned the following reasons, each relevant to plaintiff’s fitness for police work, justifying the police commissioner’s decision:
"The first one was the evaluation reports were unsatisfactory, specifically citing that Mark Szymanski suffered from an attitudinal problem towards the job; that he had difficulty in adjusting to the job.
"Secondly, that he lacked good judgment in dealing with the job and with the public, in general. For example, he had an inability, as alleged, to communicate with the public on their level, and that his public relations activities were found to be lacking.
"Next, he had an inability to accept advice, both from his superior officers and the more experienced officers to whom he was assigned for training during his probationary period. There was testimony that he was argumentative to that proffered advice, and that he was inattentive to it.
"Next, it was alleged and testified to that Mark Szymanski had an inability to relate to and get along with the other officers to the point where some of the witnesses who testified felt that it had reached serious proportions so as perhaps to create a morale problem.
"And, lastly, that there was a lack of improvement in the evaluation reports over the probationary term from the beginning to the close, after counseling by his superior officers in areas where those reports indicated that Officer Szymanski was deficient.”
In his appeal to circuit court plaintiff renewed his objection to the failure of the authorities to provide him with "timely and adequate charges and reasons for termination”. He also argued that his discharge was illegal and void because only the mayor, not the police commissioner, had the authority to issue the termination notice.
The circuit court found that there was competent, material and substantial evidence supporting the administrative determination that plaintiff had been denied permanent employment because of his failure to satisfy the expectations of his superiors. The court found no insufficiency in the notice to plaintiff that he would be denied permanent employment "based upon unsatisfactory reports concerning his conduct and his capabilities in the performance of his dutes”. And, citing the City of Warren charter, the court ruled that the police commissioner was the proper person to issue the termination notice. Plaintiff challenges these latter rulings on appeal to this Court; we address the rulings in reverse order.
Section 11 of the firemen and policemen civil service act, MCL 38.501 et seq.; MSA 5.3351 et seq., provides in pertinent part:
"(a) * * * All original appointments to any positions in the police departments, within the terms of this act, shall be for a probationary period of 1 year after the completion of legally required courses of basic training. At any time during the probationary period the appointee may be dismissed for such cause, in the manner provided in this act. If at the close of this probationary term, the conduct or capacity of the probationer has not been satisfactory to the appointing officer, the probationer shall be notified within 10 days, in writing, that he will not receive permanent appointment, whereupon his employment shall cease; otherwise his retention in the service shall be equivalent to his final appointment. The probationer shall be entitled to a hearing before the commission as provided in section 14.
"(b) Every position, unless filled by reinstatement, shall be filled only in the following manner: The appointing officer shall notify the civil Service commission of any vacancy in the service which he desires to fill, and shall request the certification of eligibles. The commission shall forthwith certify, from the eligible list, the name of the person who received the highest average at preceding examinations held under the provisions of this act within a period of 2 years next preceding the date of such appointment. The appointing officer shall, thereupon, with sole reference to the relative merit and fitness of the candidate, make the appointment so certified. As each subsequent vacancy occurs, precisely the same procedure shall be followed. When an appointment is made under the provisions of this section, it shall be, in the first instance for the probationary period, as provided in this act. The term 'appointing officer’ as used in this act shall be construed to mean the mayor or principal administrative or executive officer in any city, village or municipality.” MCL 38.511; MSA 5.3361.
In § 17 of the act the Legislature has given the following definition to the term "appointing power”:
"The term 'appointing power’ includes every person or group of persons who, acting singly or in conjunction, as a mayor, city manager, council, common council, commission, or otherwise, is or are vested by law with power and authority to select, appoint or employ any person to hold any office, place, position or employment subject to civil service.” MCL 38.517; MSA 5.3367.
Under the provisions of the City of Warren charter, the police commissioner, who is appointed by the mayor, is the executive director of the police department. The commissioner is designated "the appointing authority” for the police department and is "responsible for the appointment of all division heads and personnel of the department”. City of Warren Charter, §§ 7.17, 7.19.
Plaintiffs argument that, pursuant to § 11(b), supra, the mayor of the City of Warren is the "appointing officer” for purposes of § 11(a), and that any termination notice to a probationary police officer at the end of his or her term must come from the mayor, is unpersuasive.
In isolation, § ll(b)’s definition of "appointing officer” suggests that only the mayor’s evaluation of the probationer’s conduct or capacity is relevant under § 11(a). Section 11, however, "does not stand alone. It exists and must be read in context with the entire act * * *.” Arrowhead Development Co v Livingston County Road Comm, 413 Mich 505, 516; 322 NW2d 702 (1982). Review of the statute as a whole reveals that the terms "appointing officer” and "appointing authority” are used interchange ably. See, e.g., MCL 38.513; MSA 5.3363. Under § 17’s expansive definition of "appointing authority”, which comports fully with the provisions of the City of Warren charter, the police commissioner is clearly the person upon whose satisfaction the permanent retention of a probationary police officer is dependent.
In our judgment, the circuit court’s ruling is the sole reasonable construction of the act and the sole construction which fully reflects the intent of the Legislature. Defendant police commissioner did not exceed his authority in issuing the termination notice in this case, and plaintiff was deprived of no statutory right by virtue of that procedure.
Plaintiff also argues that he was entitled to a written statement of specific charges of misconduct upon which the appointing authority based his decision not to retain him beyond his probationary term. According to plaintiff, § 14 of the act provides unambiguously for such detailed notice. The termination notice sent to plaintiff speaks only in general terms of "questionable progress”, "problem areas of concern”, "unsatisfactory reports”, and "the collective recommendation that [plaintiffs] employment * * * be terminated”. See fn 1, supra.
As noted above, § 11 of the act provides that a probationer whose conduct or capacity has not been satisfactory to the appointing officer is entitled to written notice that he or she will not receive permanent employment. The probationer is entitled to a civil service commission hearing "as provided in section 14”. See City of Troy v Troy Civil Service Comm, 81 Mich App 585; 265 NW2d 759 (1978).
Section 14, MCL 38.514; MSA 5.3364, provides in part that persons shall be employed only during good behavior and efficient service; that employees may be removed, discharged, suspended or deprived of privileges for various enumerated species of misconduct; that no police department employee may be removed, discharged, demoted, suspended or otherwise punished "except for cause, and in no event until he shall have been furnished with a written statement of the charges and the reasons for such actions”. The section further discusses the timeliness of the filing of charges and provides for public hearings, upon request, where a removing officer must justify his or her action. Procedures to be followed at the hearing are discussed in general terms. Discharged employees may appeal adverse decisions to circuit court. _
We are not persuaded that § 14 provides unambiguously that probationary employees who are not to be given permanent appointment are entitled to detailed notice of specific charges of misconduct. On the contrary, the statutory rights of probationary employees in plaintiff’s position are set forth in § 11; such probationers are entitled to: (1) written notice that they will not receive permanent appointment, and, if requested, (2) a civil service commission hearing concerning the appointing officer’s decision. Section ll’s incorporation of § 14 concerns only the procedures to be followed at the hearing itself. We agree with the following observations of the chairman of the City of Warren Civil Service Commission:
"Section 11 says you shall give a probationer a notice in writing within ten days [that] he will not receive permanent appointment whereupon his employment will cease. It appears to me * * * that that is the procedure preliminary to the hearing, rather than the preliminaries that are set forth in § 14 where you give written specifications and so on.”
At the § 14 hearing, it was incumbent upon defendant police commissioner to establish cause for denial of permanent employment to plaintiff. The applicable standard of "cause” was discussed by this Court in Harmon v Southfield, 91 Mich App 731, 734-735; 284 NW2d 170 (1979), lv den 408 Mich 862 (1980):
"We agree that the Legislature did not intend a probationary employee be dischargeable only for such cause as would be sufficient to dismiss a tenured employee. 'Probationer’ is defined as 'one whose fitness is being tested on a trial basis’. Webster’s Third New International Dictionary (1965). A tenured officer has proven his ability to do the job and can only be dismissed for those reasons listed in § 14. A probationary officer, on the other hand, is still undergoing evaluation to see whether he is capable of handling the many responsibilities of police work. Hence, he may be refused permanent employment where he has failed to satisfy his superior’s expectations even though his conduct is not so reprehensible as to be grounds for dismissing a tenured officer.
"Of course, as the commission noted, the appointing officer does not have unlimited discretion in denying permanent employment to a probationer. It cannot be denied for arbitrary or capricious reasons nor can the appointing officer engage in racial, sexual or other illegal discrimination.”
Thus, a probationer may be denied permanent employment if his or her conduct or abilities have not satisfied the expectations of superior officers. The filing of specific charges of misconduct is not a prerequisite to such denial. Compare, for example, MCL 38.512; MSA 5.3362. The written notice to plaintiff in this case satisfied the statutory requirements.
Finally, plaintiffs claim that certain department rules and regulations were violated is without merit. Because plaintiff was denied permanent employment under the general standard of cause described in § 11, the rules concerning specific charges of misconduct were inapplicable.
Affirmed.__
The notice, in its entirety, read as follows:
"On 1/22/81 Sergeant Albert Ingles, the Department’s Training Officer, requested an audience with the undersigned for the purpose of discussing the questionable progress and recommended action to be taken reference to the unsatisfactory probation evaluation reports submitted on the above captioned Probationary Officer, Mark Szymanski, Badge #076, by supervisory officers.
"Pursuant to Sergeant Ingles prementioned request, the undersigned informed him to advise Executive Lieutenant Charles Parks and Inspector Herbert Kauffman of the Patrol Bureau; Inspector John Bahorski of the Administrative Service Bureau and Senior Inspector Gordon Tullock to assemble at my office to collectively cause an assessment of the content of Probationary Officer Mark Szymanski’s progress reports and probationary status.
"Following an evaluation of the reports in question, discussion of the follow-up actions previously taken by Officer Szymanski’s bureau supervisors and commanding officers and by Training Sergeant Albert Ingles to make him aware of problem areas of concern, it was concluded that it would serve the best interest of the Warren Police Department to terminate Officer Szymanski’s probation at this time.
"Based upon the unsatisfactory reports received and the collective recommendation that Mark Szymanski’s employment as a Probationary Officer in the Warren Police Department be terminated. The undersigned hereby orders Probationary Officer Mark Szymanski’s dismissal from the Warren Police Department effective 1/23/81. Based upon the short notice involved and the fact that Officer Szymanski did serve the Warren Police Department for one full year, the undersigned recommends that he be provided ten (10) days severance pay in lieu of vacation time earned over the past year and payment in full for the 79-6/8 hours of accumulated overtime banked and payment for such accumulated sick time which he may be privileged to under the city’s collective bargaining agreement with the Warren Police Officer’s Association.”
The statute does not clearly provide that the notice must come from the appointing officer. For purposes of analysis, we will assume, as do the parties, that such is required.
MCL 38.514; MSA 5.3364:
"The tenure of every one holding an office, place, position or employment under the provisions of this act shall be only during good behavior and efficient service; and any such person may be removed or discharged, suspended without pay, deprived of vacation privileges or other special privileges, by the civil service commission, for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment to the public, neglect of duty, violation of the provisions of this act or the rules of the commission, or any failure of good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office: Provided, however, No member of any fire or police department within the terms of this act shall be removed, discharged, reduced in rank or pay, suspended or otherwise punished except for cause, and in no event until he shall have been furnished with a written statement of the charges and the reasons for such actions, and all charges shall be void unless filed within 90 days of the date of the violation, except in the case of a probationer, whose violations may accumulate for the probationary period. In every case of charges having been made a copy of the statement of reasons therefor and answer thereto, if the person sought to be removed desires to file such written answer, shall be furnished to the civil service commission and entered upon its records. Such answer shall be filed by the member within 5 days after service of the charges upon him. If the person sought to be removed or reduced shall demand it, the civil service commission shall grant him a public hearing, which hearing shall be held within a period of 10 days from the filing of the charges in writing and a written answer thereto. Pending the period between the making of the charges as a basis for removal and the decision thereon by the commission the member shall remain in office. At such hearing the burden shall be upon the removing officer to justify his action. In the event that the removing officer fails to make charges to the satisfaction of a member or members of a fire or police department in a city, village or municipality, such member or members of a fire or police department may present the information to the civil service commission. In event that the civil service commission fails to justify the action of the removing officer then the person sought to be removed shall be reinstated with full pay for the entire period during which he may have been prevented from performing his usual employment, and no charges shall be officially recorded against his record. A written record of all testimony taken at such hearing shall be kept and preserved by the civil service commission, which record shall be sealed and not be available for public inspection, in event that no appeal shall be taken from the action of the commission. In event that the civil service commission shall sustain the action of the removing officer the person removed shall have an immediate right of appeal to the circuit court of the county wherein the city, village or municipality is situated. Said appeal shall be taken within 90 days from the entry from the civil service commission of its final order; upon such an appeal being taken and docketed with the clerk of the circuit court of said county, the circuit court shall proceed to hear the appeal upon the original record taken therein and no additional proof shall be permitted to be introduced. The circuit court’s decision shall be final, saving the employee, however, the right to petition the supreme court for a review of the court’s decision. The removing officer and the person sought to be removed shall at all times, both before the civil service commission and upon appeal, be given the right to employ counsel to represent either of them before said civil service commission and upon appeal; should the person removed elect to appeal to the circuit court as hereinbefore provided.”
Plaintiff does not claim that adequate cause was not established at the hearing. We note only that such claim would be totally lacking in merit. | [
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Bronson, J.
I agree with the dissent that defendant’s conviction must be reversed due to the untimely decision to allow evidence of defendant’s prior convictions to be used for impeachment purposes.
I write separately to state my disagreement with the dissent’s treatment of the search and seizure issue. A drawn gun does not transform a stop into an arrest. In Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), Chief Justice Warren stated:
"We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Terry, supra, p 23.
Terry allowed significant encroachments on privacy rights in order to protect police officers in the course of their duties. To achieve this measure of protection, Terry permitted officers to "stop and frisk” a subject, under circumstances in which probable cause did not exist, without offending the Fourth Amendment. The drawing of a gun does little to add to the intrusiveness of a frisk but may add greatly to the protection afforded the officer during the stop. Protective measures, such as drawing a gun on approaching a car whose driver may be armed, do not transform a stop into an arrest; the officer may increase the risk of being shot, however, by leaving the gun in its holster. United States v Jackson, 652 F2d 244 (CA 2, 1981).
In addition, I do not think it appropriate, in Fourth Amendment analysis, to attempt to devine what a police officer would have done had a suspect not fled. It is not the planned intrusion on privacy which must be examined, it is the actual one. See Terry, supra, p 21, fn 16.
I must also disagree with the statement that "the weapon seized by the police was clearly obtained as a result” of the allegedly illegal intrusion although I do agree that the problem must be analyzed by using the "fruit of the poisonous tree” doctrine. The trial court must ask whether the act of throwing the gun from the car was a result of the allegedly illegal action. In doing so, it cannot overlook the possibility that the discarding of the gun was the result of an unreasonable response to the situation by the defendant. This Court cannot conclude, as a matter of law, that the discarding of the gun was the fruit of the allegedly illegal stop. All questions concerning the suppresssion of evidence remain open on our remand to the trial court.
Reversed and remanded.
R. J. Snow, J., concurred. | [
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R. L. Tahvonen, J.
Plaintiff appeals as of right an order of the trial court dismissing her complaint against defendant Saginaw Community Hospital. The trial court ruled that governmental immunity hatred plaintiffs action against the hospital. The court also dismissed plaintiff’s complaint against defendant Saginaw County, ruling that plaintiff failed to state a claim on which relief could be granted. Plaintiff has not appealed the latter ruling.
On February 3, 1978, plaintiffs decedent was transferred to Saginaw Community Hospital from St. Mary’s Hospital in Saginaw. He was placed in the hospital’s extended care facility after a progno sis was made that he would be in need of skilled or unskilled nursing care the remainder of his life. Decedent died on February 5, 1978. It is alleged that his death resulted from the negligence of employees of Saginaw Community Hospital.
MCL 691.1407; MSA 3.996(107) provides:
"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.”
In Parker v City of Highland Park, 404 Mich 183; 273 NW2d 413 (1978), and Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978), the Supreme Court announced the test for determining whether a governmental entity is engaged in the discharge of a governmental function. Since Justice Moody constituted the swing vote in each case, this Court has consistently applied his analysis. See, e.g., Trezzi v Detroit, 120 Mich App 506; — NW2d — (1982); Catenaro v Detroit, 115 Mich App 615, 617-618; 321 NW2d 746 (1982); Weaver v Duff Norton Co, 115 Mich App 286, 290-291; 320 NW2d 248 (1982).
As noted in Weaver, supra, the Moody analysis begins with a presumption of liability:
"Participation of modern government in our everyday existence is so pervasive that any presumption must rightly run to government responsibility and consequent liability rather than to immunity. Present realities dictate viewing immunity as a privilege, limited to those activities uniquely associated with governmental enterprise.” Parker, supra, p 199.
In determining whether a particular activity constitutes a governmental function, the focus is on the precise activity giving rise to plaintiffs claim rather than on the entity’s overall or principal operation. Weaver, supra; Churchwell v Regents of University of Michigan, 97 Mich App 463, 469; 296 NW2d 75 (1980). As stated by Justice Moody in Parker, supra, p 200:
"[A]s a basic guideline, the crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government. Unless liability would be an unacceptable interference with government’s ability to govern, activities that fall outside this perimeter, although performed by a government agency, are not governmental functions and therefore not immune.”
The activity involved in this case relates to an allegation of negligence in the performance of services by the skilled nursing care unit of the hospital. In our opinion, the hospital’s operation of a skilled nursing care unit does not constitute the performance of a governmental function. The evidence established that the services being performed by that unit were the same as those plaintiffs decedent could have received in a number of private nursing homes in the area. The fact that a large portion of the hospital’s operating budget comes from public sources does not alter our conclusion. The bulk of those funds come from Medicare and Medicaid. Those sources are also available for services performed by a private nursing home.
The trial court placed heavy reliance on the fact that the hospital, unlike a private nursing care home, is required to accept involuntary committals and may not refuse to perform services merely because the patient is indigent. The difficulty with this argument is that the doctrine of charitable immunity was abolished by the Supreme Court in Parker v Port Huron Hospital, 361 Mich 1; 105 NW2d 1 (1960). We decline to resurrect that doctrine. The test of' governmental immunity relates not to the beneficiary of the services, but rather to the nature of the services being performed. Parker, supra. As stated above, the services being performed by the county hospital are not services which can be effectively accomplished only by government.
The trial court erred by granting summary judgment in favor of the hospital.
The decision of the trial court is reversed and the case is remanded for trial on the merits. No costs, a public question. | [
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Per Curiam.
Following a bench trial, defendant was convicted as charged of larceny in a building. MCL 750.360; MSA 28.592. Defendant was sentenced to two to four years imprisonment. He appeals as of right.
Relying on dicta in People v Carmichael, 86 Mich App 418; 272 NW2d 667 (1978), lv den 406 Mich 949 (1979), defendant argues that the prosecutor abused his discretion by charging defendant with the felony of larceny in a building rather than the misdemeanor of simple larceny.
Even if Carmichael is considered competent authority for the rule that a defendant accused of shoplifting may not be charged with larceny from a building, that rule is not applicable in this case. Defendant’s act cannot be construed as shoplifting. Defendant, an employee of Hudson’s em’ployed in other than a sales position, stole money from an open cash register of his employer. Further, al though the trial court correctly found that the prosecutor need only prove that property of some value was taken by defendant, the prosecutor presented evidence that defendant took property valued over $100. The proofs showed that defendant took cash from register #273 and put that cash in his right hand. The security guard observed those actions and pursued defendant. When caught, defendant turned over the cash in his hand to the security guard. The value of that cash was $160. Moreover, the audited shortage in register #273 was $194.84, the total of the $160 cash and a $34.84 check defendant had in his possession. This evidence could convince a fact-finder beyond a reasonable doubt that the value of the stolen property was over $100. See, also, People v Bolton, 112 Mich App 626; 317 NW2d 199 (1981), and People v Ditto, 110 Mich App 654; 313 NW2d 177 (1981) , where panels of this Court rejected the argument that it was an abuse of discretion to charge a violation under the more harsh of two statutes.
Defendant’s additional allegations also lack merit.
The prosecutor presented sufficient evidence that defendant specifically intended to commit a larceny in a building. See People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), and People v Thompson, 114 Mich App 302; 319 NW2d 568 (1982) . The proofs established that defendant not only possessed a stolen check and money when he was caught but was observed taking money from his employer’s cash register and leaving with that property belonging to his employer. Such actions are sufficient for a rational fact-finder to conclude beyond á reasonable doubt that defendant intended to take the stolen property. The trial court did not clearly err in so finding.
The trial court did not err by finding that the prosecutor did not cause reversible error by failing to seek defendant’s approval of the prosecutor’s waiver of his opening statement. First, the language of GCR 1963, 507.1, is directory, not mandatory. Second, defendant did not object immediately or show how he was prejudiced by the absence of the opening statement. Finally, a trial judge as fact-finder does not benefit from a general introductory opening statement in the same manner as a jury. The trial judge can be assumed to know what elements the prosecutor must prove and apply the law to the facts presented. See People v Joseph, 24 Mich App 313, 318-319; 180 NW2d 291 (1970), and People v Clayton, 236 Mich 692, 694-695; 211 NW 42 (1926).
Affirmed. | [
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Per Curiam.
Defendant was convicted by a jury of receiving and concealing stolen property exceeding the value of $100, a 1979 Ford Bronco, MCL 750.535; MSA 28.803. He was sentenced to a term of five years probation with the first year to be served in jail. He was released on bond pending appeal. Defendant appeals as of right.
Defendant argues that the trial court erred in admitting the preliminary examination testimony of an unavailable witness into evidence rather than granting an adjournment so that the witness could testify in person. The defendant argues that without that testimony the prosecution did not present sufficient evidence that the Bronco was stolen.
One of the essential elements of the crime of receiving and concealing stolen property is that the property involved must have been stolen. People v Tantenella, 212 Mich 614, 619; 180 NW 474 (1920). The owner of the Bronco, Christopher A. Smith, testified at defendant’s preliminary examination that on a Friday night he parked and locked the vehicle in his driveway. He did not give anyone permission to take it. When he awoke the next morning, the Bronco was missing. He immediately called the police and reported the vehicle as being stolen.
The trial was scheduled for November 19, 1980. The sheriff, however, was unable to locate and serve process on Smith. As a result, the trial date was adjourned to December 16, 1980. On the second day of trial, the prosecution informed the court that Smith had been hospitalized three days prior to trial, was still in the hospital, and was undergoing extensive tests for a possible aneurysm. The people moved for the admission of Smith’s preliminary examination testimony into evidence.
The trial court immediately held a hearing on the unavailability of Smith. Keith Papas testified that he telephoned Harper Hospital and was told by Dr. Gurdjian that he was in the process of performing a spinal or lumbar puncture on Smith and did not know when Smith could be released. Detective Raymond Knuth testified that he was informed by Smith’s mother that Smith had been hospitalized due to neurological problems and that it was possible Smith was suffering from an aneurysm. Assistant Prosecuting Attorney Ronald Tyler testified that he spoke with Smith the previous day. Smith had told him that he had been having severe headaches for the last three or four days. The headaches gave Smith a severe burning sensation which Smith feared to be an aneurysm. Smith’s family has a history of aneurysms. Smith told Tyler that he had been in bed constantly and that the doctors were "holding him there”. Based on this testimony, the trial court found Smith to be an unavailable witness under MRE 804(a)(4). Smith’s preliminary examination testimony was then read into evidence.
MRE 804(a)(4) defines a witness as being unavailable if he is unable to be present because of physical or mental illness or infirmity. If a witness is unavailable, his former testimony may be read into evidence, providing the opposite party had an opportunity and motive to develop the testimony by examining the witness. MRE 804(b)(1). On appeal, defendant argues that the trial court abused its discretion in admitting Smith’s testimony because due diligence in producing the witness had not been shown. The due diligence requirement, however, applies only under MRE 804(a)(5) (the witness is absent and the proponent of his statement "has been unable to procure his attendance”). Under MRE 804(a)(4), when the witness is unable to attend due to medical problems, there is no requirement of a showing of "due diligence” to produce the witness.
Questions on admissibility of evidence are to be determined by the trial court through a proper exercise of its discretion. People v Amison, 70 Mich App 70, 74; 245 NW2d 405 (1976); see MRE 104(a). The trial court did not abuse its discretion in admitting Smith’s testimony. Smith had a suspected aneurysm and had submitted himself to a lumbar puncture. He was unable to testify due to a physical infirmity. Under such circumstances, Smith’s preliminary examination testimony was admissible under MRE 804(b)(1).
Defendant asserts further that the trial court at least should have granted defendant’s motion for an adjournment to allow Smith to be produced at a later date. The trial court noted that the jury had been sworn and that the trial was already in progress. The court noted also that there was no indication of when Smith would be available to testify.
The granting of an adjournment in a criminal case rests within the sound discretion of the trial court. People v Gross, 118 Mich App 161, 164; 324 NW2d 557 (1982). After reviewing the circumstances in this case, we are unable to find an abuse of discretion. The court was in the middle of trial and it had no indication of when Smith would be available to testify. Smith’s preliminary examination transcript was readily available. The denial of defendant’s motion for an adjournment does not evidence an abuse of discretion.
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Per Curiam.
Defendant was convicted by a jury of breaking and entering an unoccupied dwelling with the intent to commit a larceny, MCL 750.110; MSA 28.305. Defendant was sentenced to 24 months probation with the first 6 months to be spent in Gladwin County jail and was ordered to pay $1,700 restitution, a $100 fine, and $200 in costs.
During trial, the trial court informed the jury that a preliminary examination had been conducted, the purpose of which was to establish that a crime had been committed and that there was probable cause to believe that the defendant had committed the offense. The judge distinguished between probable cause and proof beyond a reasonable doubt. No objection was raised. However, we cannot say that it is inconceivable that the jury would have reached a different result but for the error.
The trial court erred in explaining the purpose of the preliminary examination to the jury. In effect, the jury was informed that there was probable cause to believe that defendant was guilty. Such an instruction is likely to place the burden of proof on the defendant to prove his innocence. The burden of proof in a criminal case may not be placed on the defendant and instructions of the trial judge susceptible of any such interpretation are erroneous. People v Clark, 340 Mich 411, 418; 65 NW2d 717 (1954). We have not found the error harmless beyond a reasonable doubt and, therefore, defendant is entitled to a new trial. We find no merit in defendant’s other assignments of error.
Reversed and remanded. | [
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D. E. Holbrook, P. J.
On October 14, 1976, defendant was convicted by a Recorder’s Court jury of three counts of criminal sexual conduct in the first degree, MCLA 750.520b(l); MSA 28.788(2)(1), and one count of attempted armed robbery, MCLA 750.529; MSA 28.797, MCLA 750.92; MSA 28.287. On November 5, 1976, defendant was sentenced from 7-1/2 to 15 years in prison on the criminal sexual conduct counts and 2 to 5 years in prison on the attempted armed robbery count. Defendant appeals as of right.
On December 23, 1975, the complainant, an 18-year old lady, accepted a ride from an acquaint anee, Allen Cousins. Mr. Cousins drove the complainant to a store where she intended to buy cigarettes. As complainant left the store, she noticed defendant standing across the street, and, according to her testimony, defendant crossed the street, approached her from the left, put his arm around her neck and placed a knife at her throat.
Mr. Cousins testified that while he was waiting in his truck outside the store he noticed the complainant lying on the street behind the truck. As he left the truck to investigate, the defendant held a knife to Cousins’ neck and demanded money. When Cousins stated that he had no money, the defendant forced Cousins and the complainant into the truck and told Cousins to drive the truck around the corner. Mr. Cousins obeyed and parked the truck at the defendant’s command. The defendant then demanded that complainant perform fellatio on him and told Cousins to get down on the floor of the truck. Cousins moved to the floor where he unlatched the truck door and ran away.
At defendant’s command, while he threatend her with a knife, complainant performed fellatio upon him in the truck. Shortly thereafter, the defendant forced the complainant out of the truck where they were met by two other men. These three men took complainant to a vacant house where they each had sexual intercourse with her in an empty back bedroom. After the three men left her, complainant ran to a nearby house and called the police. After a stop at Detroit General Hospital, complainant went to the police station where she identified the defendant as her assailant in a lineup.
The first issue raised on appeal was whether a defendant may be charged and convicted of multiple counts of criminal sexual conduct.
The defendant was charged with four counts of criminal sexual conduct in the first degree, MCLA 750.520b; MSA 28.788(2), and two counts of assault with intent to rob being armed, MCLA 750.89; MSA 28.284.
MCLA 750.520b; MSA 28.788(2) provides 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:”
The statute then lists various circumstances, any of which would render "sexual penetration with another person” to be criminal sexual conduct in the first degree. The section and subsections relevant here are as follows:
"(c) Sexual penetration occurs under circumstances involving the commission of any other felony.
* * *
"(e) The actor is armed with a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon.
"(f) The actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration. Force or coercion includes but is not limited to any of the following circumstances:
"(ii) When the actor coerces the victim to submit by threatening to use force or violence on the victim, and the victim believes that the actor has the present ability to execute these threats.” MCLA 750.520b(l)(c), (e), (f)(ii); MSA 28.788(2)(l)(c), (e), (f)(ii).
The jury considered defendant’s guilt on count one, assault with intent to rob Allen Cousins; count three, sexual penetration (fellatio) occurring during the commission of another felony; count four, sexual penetration (fellatio) while armed with a weapon; count seven, sexual penetration (intercourse) while armed with a dangerous weapon. The trial judge also instructed the jury as to the lesser included offense of attempted armed robbery. After deliberating, the jury returned the following verdict:
"THE COURT: * * * In the Case of the People of the State of Michigan versus Oliver Anthony Robinson, as to Count One, assault with intent to rob being armed, how do you find him, guilty or not guilty?
"JUROR CRAIG: Not guilty.
"THE COURT: As to attempt [sic] robbery armed, guilty or not guilty of the included offense?
"JUROR CRAIG: Guilty.
"THE COURT: Okay, as to Count Two, criminal sexual conduct in the first degree, to-wit, fellatio in the commission of another felony guilty or not guilty?
"JUROR CRAIG: Guilty.
"THE COURT: As to criminal sexual conduct in the first degree, fellatio, while armed with a dangerous weapon, guilty or not guilty?
"JUROR CRAIG: Guilty.
"THE COURT: As to criminal sexual conduct, to-wit, sexual intercourse, guilty or not guilty?
"JUROR CRAIG: Guilty.”
The evidence shows that defendant had engaged in two sexual penetrations of one victim, that being intercourse and fellatio.
On appeal, defendant claims violation of constitutional and statutory protection against double jeopardy. We find it unnecessary to discuss the constitutional issue. People v Willie Johnson, Jr, 75 Mich App 221, 224; 255 NW2d 207 (1977). We hold that the Legislature intended that but two convictions under the criminal sexual conduct act could result from one act of intercourse and one act of oral sex.
In People v Willie Johnson, supra, the Court avoided discussing the defendant’s challenge to the Michigan criminal sexual conduct act on double jeopardy grounds. The Court elected instead to find that a conviction on more than one count under the statute violated clear legislative intent. The Court held:
"We do not perceive any legislative intent, however, that proof of one or more of these aggravating circumstances could transform one criminal sexual act into many. Although the statute is not explicitly phrased in the alternative, we are of the opinion that the Legislature intended that the various aggravating circumstances be alternative ways of proving criminal sexual conduct in the first degree. Canons of strict construction and the rule of lenity, in any event, would require that result in the absence of a clear legislative intent to the contrary. Consequently, only one of defendant’s convictions may stand.” Willie Johnson, at 226-227.
This Court adopts the Willie Johnson rationale and holds that the defendant’s conviction in the instant case on three counts of criminal sexual conduct, arising out of only two acts of penetration, violated the clear legislative intent.
Defendant’s conviction as to criminal sexual conduct in the first degree, to-wit fellatio in the commission of another felony, is hereby vacated and defendant stands convicted of one count of criminal sexual conduct in the first degree (fellatio) while armed with a dangerous weapon and one count of criminal sexual conduct in the first degree, to-wit sexual intercourse.
We are cognizant in our ruling in this case of the scholarly opinion written by Judge Beasley, in People v Nelson, 79 Mich App 303; 261 NW2d 299 (1977), which dealt with multiple charges and convictions under the criminal sexual conduct statute. We disagree with People v Nelson, supra. The Judge indicates how difficult it is attempting to determine the legislative intent when a new law is passed. It involves whether the Legislature intended that a single penetration, accompanied by more than one of the statute’s enumerated circumstances, can result in multiple charges for purposes of conviction and sentence.
Judge Beasley concluded that:
"[T]he legislative purpose of the new criminal sexual conduct statute was to strengthen, not weaken, within constitutional strictures, the criminal law describing unlawful sexual conduct. Consistent with that legislative purpose is an interpretation that each listed special circumstance is the basis for a separate offense and conviction.” Nelson, supra, at 319.
Applying this reasoning to the case at bar, the defendant could be convicted and sentenced for both fellatio in commission of another felony, and fellatio while armed with a dangerous weapon.
However, we do not agree with Judge Beasley’s interpretation of the legislative intent and we require a different holding. We would agree that the passage of the criminal sexual conduct statute was to enact changes in the then existing rape law; however, it is not clear that the Legislature intended to impose multiple punishment for a single act of sexual penetration. Although the Legislature may constitutionally impose dual punishment for a single act, it must clearly appear from the face of the statute and its legislative history that the Legislature intended to do so. People v Bennett, 71 Mich App 246, 248; 247 NW2d 368 (1976). The legislative history of the criminal sexual conduct statute does not indicate that they were seeking to permit multiple convictions and punishment for one act of sexual penetration. In the absence of legislative history, any ambiguity in the statutory scheme should be resolved in favor of lenity. Bell v United States, 349 US 81, 83-84; 75 S Ct 620, 622; 99 L Ed 905, 910-911 (1955).
The rule of lenity provides that where the legislative intent is not explicit, there is a presumption against turning a single transaction into multiple offenses. Prior to the passage of the criminal sexual conduct statute, the law provided for a maximum sentence of life imprisonment for the crime of rape. The criminal sexual conduct statute also provides for a maximum sentence of life imprisonment for conviction of criminal sexual conduct in the first degree. We hold that the criminal sexual conduct statute was not intended to provide for a more severe sentence for rape, but to expand its scope so as to include the various special circumstances that could amount to criminal sexual conduct in ñrst degree. We do not feel that the Legislature intended that one act of sexual penetration, accompanied by more than one of the enumerated circumstances, could result in possible multiple life sentences.
The legislative intent of protecting the victim and society by the passage of the criminal sexual conduct statute is present in this holding. A defendant may be convicted and punished for each act of sexual penetration. However, if more than one of the statute’s enumerated circumstances accompanies the act of penetration, then the prosecutor should charge in the alternative and have the jury bring in a verdict in accordance with proper instructions.
Affirmed in part and reversed in part.
MCLA 750.520b(l); MSA 28.788(2X1).
1952 PA 73. Repealed by 1974 PA 266. | [
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J. R. McDonald, J.
Defendant James Edward Terry was convicted by a Detroit Recorder’s Court jury of carnal knowledge of a female minor (statutory rape), MCLA 750.520; MSA 28.788, November 11, 1975. The alleged offense took place on September 25, 1974, and was not affected by the repeal of the above section of the penal code. See saving clause provision of 1974 PA 266, § 2, eff April 1, 1975. On December 1, 1975, defendant was sentenced to a prison term of 3-1/2 to 10 years. Defendant appeals by right.
The complainant in the instant case was defendant’s common-law wife’s 12-year-old sister, who was staying with the couple for the summer. Defendant was providing for her support. It was alleged that defendant had raped the complainant while his common-law wife was absent from the house.
At trial, the prosecution was allowed to introduce, over defendant’s objection, evidence of two alleged similar acts of defendant.
The victim of one such alleged similar act testified at trial. She was a minor. She said it was difficult for her to remember what had happened. Upon being allowed to read a statement she had made to police some nine months after the incident, she said her memory was refreshed. It appeared, however, that her memory was incomplete, and the statement made to the police indicated that more had happened than that to which the witness testified at trial. The prosecutor was allowed to read portions of her previous statement in the form of questions, which the witness answered in the affirmative.
Defendant took the stand and denied the wit ness’s allegations. On cross-examination, the prosecutor asked the defendant if he knew "a woman by the name of Sandra Lawson”. Defendant said he did. The prosecutor then asked if the defendant had ever had any trouble with Miss Lawson. Defense counsel objected. The trial court responded that the witness was endorsed and all the prosecutor was doing was "laying groundwork”. Cassandra (Sandra) Lawson was the victim of the second alleged similar act of defendant sought to be introduced by the prosecution. She was an endorsed people’s witness, and had apparently been subpoenaed to appear, but refused to do so. The trial court denied the prosecutor’s request for a bench warrant to force Cassandra Lawson to appear. Defendant’s attorney did not agree to waive the production of this endorsed witness. It is conceded by both parties, and the record reflects, that the court failed to take testimony as to whether or not the prosecutor exercised due diligence.
Evidence introduced at trial included two pair of the complainant’s panties. One pair was seized by police from the complainant’s bedroom during a warrantless search of the defendant’s home after consent to the search by the complainant.
The second pair of panties was given to police by the complainant at the hospital where she was examined following the alleged rape. Both pair of panties were stained with blood and seminal fluid. The seminal fluid was found to have come from a male with the same blood type as the defendant.
Defendant’s common-law wife was called by the prosecution as a res gestae witness. She said she did not believe the defendant had raped her sister. The prosecutor showed the witness a statement allegedly made by her shortly after the incident to an unidentified police officer. She said she remem bered talking to police about the incident, but said she refused to sign a statement "because it wasn’t the way I told him”. She said the whole thing was inaccurate. The prosecutor then read portions of the unsigned statement into the record and had the witness read other portions which she felt were untrue. The police officer who wrote the memorandum was not called as a witness.
Prior to giving his instructions to the jury, the trial court asked defense counsel whether he wished the instruction on assault with intent to have carnal knowledge with a female minor and assault and battery. Defense counsel, instead, requested an instruction on attempted statutory rape. The trial court refused, and instructed the jury only on the charged offense.
Defendant claims that the trial court committed reversible error in refusing to give a requested jury instruction on attempted statutory rape. We agree.
The duty of the trial court to instruct on lesser included offenses is determined by the evidence. If evidence has been presented which would support a conviction of a lesser included offense, refusal to give a requested instruction on the lesser included offense is reversible error. People v Phillips, 385 Mich 30, 36; 187 NW2d 211 (1971), People v Jones, 273 Mich 430, 431; 263 NW 417 (1935). If the offense is one that is necessarily included within the greater, that is, the greater could not have been committed without the lesser having first been committed, the evidence will always support the lesser, if it supports the greater. People v Ora Jones, 395 Mich 379, 390; 236 NW2d 461 (1975).
We hold that the refusal of the trial court to instruct the jury on the necessarily lesser included offense of attempted statutory rape was reversible error. People v Lovett, 396 Mich 101; 238 NW2d 44 (1976), People v Thomas, 399 Mich 826; 249 NW2d 867 (1977). We note that where this Court found a similar error in People v Herbert Ross, 73 Mich App 588, 594; 252 NW2d 526 (1977), it concluded that the jury found that the crime of attempted rape had been committed since they found the defendant guilty of the greater offense of assault with intent to rape. The Court therefore adopted the remedy employed by the Supreme Court in People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975), and remanded the case for entry of a judgment of conviction of the lesser included offense of attempted rape, and for resentencing. The trial court was given the option, upon notification of the prosecution prior to resentencing, to grant a new trial on the charge of assault with intent to commit rape. We do not find that to be an appropriate remedy in the instant case, because of other error committed by the trial court.
Defendant next contends that it was reversible error to allow the prosecutor, over defense objection, to read into evidence portions of an unsigned, unacknowledged written statement allegedly made by a witness to a police officer, who was not called as a witness.
At issue here is a prior inconsistent statement allegedly made by the defendant’s common-law wife to an unidentified police officer. The witness denounced the statement as untrue, and said that is why she refused to sign it. The prosecutor then pressed her as to what portions were untrue, and, in so doing, read portions of the statement into the record.
In his dissent in People v Rodgers, 36 Mich App 211; 193 NW2d 412 (1971), expressly adopted by the Supreme Court in its opinion on appeal, 388 Mich 513; 201 NW2d 621 (1972), reversing this Court, Judge (now Justice) Levin discussed prior inconsistent statements. In Rodgers, the prosecution attempted to impeach an alibi witness with a statement allegedly made to a detective. The detective was called as a rebuttal witness and testified that he interviewed the alibi witness, wrote down what the witness said, and the witness refused to sign the statement. The trial court overruled defense counsel’s hearsay objection, saying it was past recollection recorded. This Court held that "The statement is not hearsay as that term is evidentially understood”. 36 Mich App at 217.
Judge (now Justice) Levin stated:
"However, merely because the statement made by King to the detective when offered to impeach King’s credibility is not hearsay, does not grant free license to introduce it by any means. Whether the earlier statement is, as here, oral or is written, the fact that it was made must be proved. If the earlier statement is written, the witness’s handwriting or signature must be proved. If the earlier statement is oral the impeaching witness must be able to testify that the inconsistent statement was in fact made.
"Just as an impeaching witness could not testify, in the name of impeachment, that Frank told him that Joe told Frank that Sara remarked to Bill that the chief defense witness had told her that the defendant had'threatened the victim, so, too, an out-of-court written memorandum of an oral statement allegedly made by the witness to be impeached may be used to prove the fact that the statement was made only if that fact— the fact that the witness made the statement — is provable by means of such a memorandum.” 36 Mich App at 224. (Emphasis added.)
Judge Levin also noted:
"A written memorandum of an oral statement made by another person, not signed by that person, necessarily reflects two statements; one written, the other oral: (1) it is the written statement of the writer of the memorandum that (2) the other person made the oral statement attributed to him.
"Since the written memorandum, not signed by the other person, is an out-of-court statement made by the writer that the other person said what is contained in the writing, the writing itself is hearsay without regard to whether the statement recorded in it is offered as substantive evidence or solely to impeach credibility. The rules of evidence concerning the proof of facts do not evaporate upon utterance, of the magic word 'impeachment’.” 36 Mich App at 225.
We are, as was Judge Levin, unable to find any authority holding that the fact that an inconsistent statement was made may be proved by the use of a memorandum of the statement not signed by the witness to be impeached without a showing that the person who made the memorandum cannot testify from present memory refreshed.
If the detective who wrote the memorandum had been called in the instant case, he could have testified that the conversation between himself and defendant’s common-law wife occurred. He could have testified to the best of his recollection as to what she said, and he could have referred to the memorandum to refresh his memory. Foundation could even possibly have been laid for introducing the memorandum as past recollection recorded.
Proper foundation was not laid in the instant case. We hold that the reading of portions of the unsigned, unacknowledged memorandum into the record was reversible error.
Defendant also claims that the trial court erred in excusing the production of an endorsed witness for the prosecution.
"[T]he prosecuting attorney is not obliged to place on the stand an indorsed witness who is not a res gestae witness; the prosecuting attorney’s duty is performed when he either produces such a witness in court and gives the defendant an opportunity to examine him or satisfactorily explains why the witness cannot be produced in court.” People v O’Dell, 10 Mich App 87, 92; 158 NW2d 805 (1968). The defendant having expressly indicated he would not waive the endorsed witness, it was the prosecutor’s duty to produce the witness, at least for cross-examination, or to make a proper showing of why she was not present or could not be produced at the trial. The prosecutor may be excused from producing an endorsed witness if he makes a showing of due diligence. People v Woodward, 21 Mich App 549, 554, 555; 175 NW2d 842 (1970). The mere service of a subpoena does not constitute due diligence. The prosecutor must not only issue subpoenas, but he must also use "other means at hand” to produce endorsed witnesses. People v O’Dell, supra, 94-95.
We are not convinced that the failure to produce the endorsed witness was properly excused by the trial court. As defendant’s conviction must be reversed for other reasons, we direct the trial court to require on retrial that the prosecution either produce the endorsed witness or make a showing of due diligence in the attempt to do so.
Defendant next contends that the trial court erred in permitting to be introduced in evidence the pair of complainant’s panties seized during the warrantless search of the defendant’s home. The prosecution claims that the consent of the complainant to the search made the evidence admissible. While we doubt the validity of the prosecution’s claim, we find it unnecessary to decide whether the panties were improperly seized from the defendant’s home. The second pair of panties was unquestionably properly obtained from the complainant at the hospital. They proved the same facts as did the pair of panties obtained at the defendant’s home. We hold, therefore, that the evidence was cumulative. Any error which might have occurred was harmless. People v Norwood, 70 Mich App 53, 57-58; 245 NW2d 170 (1976), People v Swan, 56 Mich App 22, 31; 223 NW2d 346 (1974). Since the defendant’s conviction must be reversed for other reasons, we direct the trial court to hold an evidentiary hearing before admitting the pair of complainant’s panties seized during the warrantless search of the defendant’s home.
Finally, the defendant argues that reversible error was committed in permitting the reading . into evidence of portions of another witness’s prior written statement after the witness had stated that the writing had refreshed her memory and had testified concerning the occurrence described in the written statement.
The witness was a minor and the victim of a prior rape allegedly committed by the defendant. After refreshing her memory from a statement given to police nine months after the incident, she testified that the defendant had forced her into his bedroom and made her undress, but that was all that had happened. The prosecutor then read portions of the witness’s prior statement which indicated sexual intercourse had also occurred. The witness said the statement was true.
As a general rule, a party cannot impeach his own witness. People v Lee, 307 Mich 743; 12 NW2d 418 (1943). However, a recognized exception to that rule is allowed where the prosecutor is surprised by the testimony of his witness. People v White, 65 Mich App 56, 62; 236 NW2d 583 (1975). The reluctance of the witness, a minor, to relate, before a courtroom full of strangers, the intimate details surrounding the alleged rape is understandable. We do not find the method chosen by the prosecutor to bring out the painful details, by reading of portions of the statement with acknowledgment by the witness that they were true, was unreasonable under the circumstances of the instant case. The surprise engendered by the witness’s testimony warranted such a tactic. We find no error.
Reversed and remanded. | [
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R. E. Robinson, J.
Defendant appeals as of right from a jury verdict which found that he held an interest in real estate deeded to him subject to a constructive trust for the benefit of his brothers and sisters. The real estate had been sold and the jury verdict resulted in an order that defendant, out of his share of the proceeds from the sale of the real estate, pay to the plaintiffs the sum of $20,431.81 plus interest thereon.
The parties to the suit are brothers and sisters. Rita Dahl, one of the plaintiffs, was mentally retarded from birth and was under the state’s care since 1945.
On June 13, 1942, the mother of the parties, Sarah, being terminally ill, conveyed by deed farm land in Canada to defendant, Bernard Dahl and his brother Edward. The consideration expressed in the deed was "natural love and affection and one dollar”.
This appeal raises 2 issues:
I
Were plaintiffs entitled to a jury trial in an action seeking to impose a constructive trust on the proceeds from the sale of real estate?
Plaintiffs timely demanded a jury, and defendant raised no objection to such demand until the pretrial conference, at which time he raised it verbally. The trial judge requested briefs on the subject. Plaintiffs complied, but defendant did not and the judge apparently based his decision to grant plaintiffs’ demand on the brief filed by plaintiffs. One is tempted to leave defendant where his dereliction has placed him.
Peripheral to the issue is plaintiffs’ claim that by raising his objection in only verbal form at the pretrial stage, and by failing to object to the trial court’s ruling, defendant has failed to preserve this issue for review. We do not agree. The issue was properly preserved for review.
Our Constitution provides:
"The right of trial by jury shall remain, but shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law.” Mich Const 1963, art I, § 14.
This Constitutional mandate is reiterated in GCR 1963, 508.1 as follows:
"The right of trial by jury as declared by the constitution shall be preserved to the parties inviolate.”
GCR 1963, 509.1 further provides that the trial shall be by jury when demanded unless the court determines that:
"[T]he right of trial by jury of some or all of those issues does not exist under the constitution.”
Both sides agree in substance with the view set forth in 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 414:
"The problem was and will remain essentially a historical inquiry — that is, whether the issue was the type which historically had been tried by the law courts or by the chancellor, as of the time when the constitutional guarantee to the right of trial by jury was adopted.”
Plaintiffs take the position that the merger of law and equity effected by art 6, § 5 of the 1963 Constitution has broadened the right to jury trial, but with this we disagree. See Fredal v Forster, 9 Mich App 215, 227; 156 NW2d 606 (1967).
Plaintiffs sought no other relief than the imposition of a constructive trust on the cash proceeds from the sale of the real estate, and the trial court’s instructions to the jury confined their deliberations to the granting or denying of only such relief.
Although they apparently concede that had the real estate not been sold by defendant, equity would have had jurisdiction to impose a trust, plaintiffs argue that sale of the real estate set the stage for an action at law for a money judgment with its attendant right to a jury trial. It isn’t necessary to answer this argument because plaintiffs did not seek a money judgment. They sought imposition of a constructive trust, and equity has jurisdiction not only to impose such, but to follow the assets upon which the trust would rest into whatever form they may be converted. Chamberlain v Eddy, 154 Mich 593; 118 NW 499 (1908), Detroit Trust Co v Struggles, 283 Mich 471; 278 NW 385 (1938). Where equity has jurisdiction, it is for the court to hear and not a jury, Chamberlain v Eddy, supra, Fredal v Forster, supra.
Finally, plaintiffs attempt to save their right to a jury with the argument that they could have sued oh a theory of assumpsit, quasi-contract or unjust enrichment and in such case would have been entitled to a jury. We find no merit in this argument as plaintiffs sued on none of these theories. Nor do we find any merit in their claim that inasmuch as they also prayed for "such further relief as the court may determine to be equitable and just”, they thereby preserved a right to jury trial.
II
Was the testimony of a witness concerning the statement of a now-deceased person admitted into evidence in violation of either the hearsay rule or the parol evidence rule?
It is agreed by both parties that defendant acquired his interest in the real estate by a valid deed from his mother in 1942. The deed was complete on its face and contained no ambiguities.
Present at the signing of the deed were defendant, Bernard Dahl; plaintiff, Edward Dahl; the mother, Sarah Dahl; the father (now deceased); and plaintiff, Florence Robair. Over objection of counsel, Florence Robair was permitted to testify that as her mother was signing the deed she heard her say in a voice loud enough for all present to hear, "I am putting this in the name of the two boys for all of you”. No one else present and able to testify heard the statement.
Professor Wigmore, recognizing that the absolute language of such a conveyance as the one before us is an obstacle which invokes the parol evidence rule, nevertheless finds that in most jurisdictions there is no objection to admission of an extrinsic, contemporaneous agreement to hold in trust for the purpose of showing that the instrument, absolute on its face, is something less than that. The good professor points out that although the reasoning by which the majority jurisdictions reach their goal varies considerably and is not always sound, he does not quarrel with the result. He draws a distinction between the act of transfer and the user of the property transferred or, put another way, between the character of the estate conveyed (fee simple, life estate, etc.) and the quality of the estate conveyed (security, trust, etc.). He then states his belief as to the proper inquiry to be made by the court: Whether the parties under all of the circumstances, appear to have intended the document to cover merely the kind of estate transferred, or to cover all possible aspects of the transfer, including that of the quality of the estate. 9 Wigmore, Evidence (3d ed), § 2437, pp 119-122, citing Bowker v Johnson, 17 Mich 42 (1868), Pinch v Willard, 108 Mich 204; 66 NW 42 (1896), Kellogg v Northrup, 115 Mich 327; 73 NW 230 (1897), Germain v Central Lumber Co, 116 Mich 245; 74 NW 644 (1898). In Schmidt v Barclay, 161 Mich 1, 5; 125 NW 729 (1910), our Supreme Court, quoting from Cornell v Hall, 22 Mich 377, 382 (1871), set forth the rule urged by Wigmore:
"' "Each case * * * must be decided in view of the peculiar circumstances which belong to it and mark its character, and * * * the only safe criterion is the intention of the parties, to be ascertained by considering their situations and the surrounding facts, as well as the written memorials of the transaction.” ’ ”
In the same section of his treatise cited above, Wigmore also reveals the error in defendant’s argument that such parol evidence is barred by the statute of frauds, i.e., here no act of reconveyance is called for.
Defendant makes much of the fact that no one of the persons present at delivery of the deed, except Florence Robair, heard the alleged statement by the mother. We think this goes to the weight of Florence’s testimony and not to its admissibility.
Defendant, in his testimony, stated that the land was to be held for those children who needed help from it and that he needed help the most. His co-grantee, plaintiff Edward Dahl, testified that, without any instructions from his mother to that effect, he felt morally obligated to divide his share among the children. He also referred to his holding as a trust.
In light of this record, it could be concluded that the parties did not intend to incorporate all of their agreements in the deed. We think the trial judge properly admitted the testimony of Florence Robair concerning the mother’s alleged oral statement.
There is ample evidence in the record made below to support the judgment of the trial court. Having reviewed that record de novo and basing our ruling on that record and not on the jury verdict, we affirm the judgment of the trial court.
No costs on this appeal, no party having fully prevailed. | [
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Per Curiam.
This is an appeal as of right from a nonjury conviction on the charge of unlawful possession of narcotics. MCLA § 335.153 (Stat Ann 1957 Rev § 18.1123).
On December 7, 1969, a complaint and warrant were issued charging defendant with unlawful possession of narcotics. Defendant waived examination and after a nonjury trial on May 6, 1970, he was convicted and on May 27, 1970, was sentenced to serve 4 years’ probation. An order denying a delayed motion for a new trial was entered on October 2,1970.
This case arose out of the transaction present in the case of People v. Character #1 (1971), 32 Mich App 40. Because the facts and rulings there are basic to a decision in this case, we make them a part of our opinion.
We add the additional facts that the police, after arresting the defendant for the charge of carrying a concealed weapon in an automobile, drove defendant to the police station, and while there, prior to placing him in jail, the police searched the defendant and found a packet of narcotics in his sock. Defendant asserts that the trial court committed error in admitting the narcotics into evidence because it was obtained through an illegal search and seizure. We ruled in People v. Character #1, supra, that the original search which resulted in the police discovering the pistol in the glove box of defendant’s car was invalid because of a lack of probable cause. We rule that the additional evidence found by the police on the person of the defendant as a result of the search and seizure at the police station could be justified only if the original search and seizure and resulting arrest were proper and based upon probable cause. There being no showing of probable cause, we rule that this search and seizure was not reasonable and the evidence seized was not admissible as evidence against defendant. Mapp v. Ohio (1961), 367 US 643 (81 S Ct 1684, 6 L Ed 2d 1081, 84 ALR2d 933); People v. Lee (1963), 371 Mich 563.
Reversed. | [
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Per Curiam.
The issue presented in the instant case is identical to the issue considered by this Court in Steel v. Wilson (1971), 29 Mich App 388.
The trial court, citing MCLA § 257.1107(3) (Stat Ann 1968 Rev § 9.2807 [3]) as authority, granted the defendant an accelerated judgment. This result is inconsistent with our holding in Steel v. Wilson, supra. Accordingly, the judgment is reversed and the case remanded. No costs, a public question being involved. | [
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T. M. Burns, J.
Plaintiff brought an action for personal injuries against Chevrolet Local Union #659 and four individuals in the Genesee County-Circuit Court. After a 3-1/2-week trial, the jury returned a verdict of no cause of action as to three of the individual defendants and a verdict of $31,560 for the plaintiff against the defendant Union Local #659 and defendant Harold Brown.
At the close of proofs, defendants moved for a directed verdict on the ground that plaintiff’s exclusive remedy was under the Workmen’s Compensation Act. The court reserved decision on the motion and allowed the case to go to the jury. After the verdict in plaintiff’s favor, defendants moved for a judgment notwithstanding the verdict, a new trial or a remittitur. The court granted the motion for the judgment notwithstanding the verdict on the ground that plaintiff and defendant Brown were employees of Union Local #659, and, as such, the exclusive remedy of plaintiff against both the defendant union local and the defendant Brown was under the Workmen’s Compensation Act.
The plaintiff appeals as of right from the judgment of the trial court dismissing the case for lack of jurisdiction. Defendant Local Union #659 cross-appealed as of right, defendant Harold Brown was granted leave to file a delayed cross-appeal.
Plaintiff, on his appeal, contends that neither he nor Brown were employees of the union local within the meaning of the Workmen’s Compensation Act.
Plaintiff was an employee of the Chevrolet Divi sion of General Motors Corporation in Flint, Michigan. In May, 1963, plaintiff was elected unit chairman of the Frame Stamping Unit of the Chevrolet Division and, as such, was authorized to sit on the Executive Board of Union Local #659. Defendant Harold Brown was also an elected official of the Executive Board of defendant union local. Both plaintiff and defendant Brown, as members of the Executive Board, were under a duty to attend monthly meetings. However, neither party received any salary from the union for performing their duties as members of the board.
Plaintiff and defendant Brown both attended a meeting of the Executive Board in December, 1963. Following the meeting which was a heated one, an altercation occurred which resulted in injuries to the plaintiff. Plaintiff then brought this suit which resulted in the verdict of $31,560, which was subsequently vacated by the trial judge.
The determination of the master-servant relationship for purposes of the Workmen’s Compensation Act no longer depends upon control. Rather, the court looks to the “economic reality” of the relationship:
“We have, however, abandoned the control test as the exclusive criterion by which the existence of an employee-employer relationship, for purposes of remedial social legislation, is determined. See Tata v. Muskovitz (1959), 354 Mich 695, which adopted as the law of this state Mr. Justice Talbot Smith’s dissenting opinion in Powell v. Employment Security Commission (1956), 345 Mich 455, 478: ‘The test is one of economic reality.’ ” (Emphasis supplied.) Goodchild v. Erickson (1965), 375 Mich 289, 293.
Justice Smith later discussed what was meant by the term “economic reality”:
“This is not a matter of terminology, oral or written, hut of the realities of the work performed. Control is a factor, as is payment of wages, hiring and firing, and the responsibility for the maintenance of discipline; but the test of economic reality views these elements as a whole, assigning primacy to no single one.”
The Supreme Court in Goodchild v. Erickson (1965), 375 Mich 289, 293, in finding the existence of an employer-employee relationship stated:
“Viewed in terms of economic reality, we cannot disagree with the appeal board’s conclusion that for purposes of assessing liability under the workmen’s compensation act Goodchild was an employee of Erickson at the time of his injury. Goodchild was a regular full-time employee of Erickson, received a single pay check from Erickson each week, and was directed by Erickson in unloading the # # * van.”
We therefore find the Supreme Court, under the “economic reality” test, looking to the following elements when determining whether or not the employer-employee relationship exists: (1) control; (2) payment of wages; (3) the right to hire and fire; and (4) the right to discipline.
In the instant case plaintiff was not hired by the union; he was an elected official. Neither could the union fire plaintiff. Plaintiff was not paid for his services ***and was not subject to the union’s control as that term has been defined in reference to the existence of the employer-employee relationship. We therefore find, under the “economic reality” test, that plaintiff was not an employee of the defendant union local and the circuit court was in error when it dismissed the case for lack of jurisdiction.
Defendants contend, however, by way of cross-appeal, that even if the circuit court was competent to hear the case, several errors committed below should prevent this court from remanding for a reinstatement of the jury verdict. Defendants raise the following issues:
I. Was there any evidence showing liability of defendant union to be submitted for consideration of the jury?
II. Is there any evidence that the conduct of the individual defendants was within the scope of their employment by the union?
III. Should the court have granted the motion of defendant union for accelerated judgment of dismissal, or in the alternative, a summary judgment on the ground that plaintiff failed to exhaust his intra-union remedies?
IV. Is there any evidence that defendant union was negligent?
We will combine Issues I and II since they must be considered together in order to arrive at a decision.
I. Was there any evidence showing liability of defendant union to be submitted for consideration of the juryi
II. Is there any evidence that the conduct of the individual defendants was within the scope of their employment by the unions
Just as a master is responsible for the torts of his servant which are committed within the scope of employment, a principal is responsible for the torts of his agent which are committed within the scope of the agency. 3 Am Jnr 2d, Agency, § 267 p 631. In the Restatement of Agency 2d, § 472, the rule is stated:
“A principal is subject to the same liability to an agent who is not a servant for damage caused by the tortious conduct of his servants, of other agents, and of other persons doing work for him, as he is to third persons.”
Thus, if the assault and battery was committed within the scope of the agency, the union, as principal, would be liable to the plaintiff, its agent.
Defendant union local does not claim that the principal-agent relationship does not exist, but rather that the union is not responsible because the altercation took place after the meeting was concluded. However, the altercation arose out of the Executive Board meeting. The assault took place just after the meeting concluded and occurred on the premises controlled by the principal union local. Plaintiff also introduced evidence which, if believed, would establish that plaintiff had made serious allegations of illegal acts by union officers and that defendant Brown had intended to silence the plaintiff to prevent embarrassment to the union. There was sufficient evidence, therefore, if believed, to establish that the acts and motive of defendant Brown were in furtherance of the business of the union local.
Defendants rely on Sands v. Abelli (SD NY, 1968), 290 F Supp 677, as standing for the proposition that the union should not be held liable for the assault and battery. However, that case involved the interpretation of a Federal statute, is factually distinguishable, and, in any event, is in no way binding upon this Court. We therefore find no merit in the first two issues raised by the defendants.
III. Should the court have granted the motion for defendant union for accelerated judgment of dismissal, or in the alternative, a summary judgment on the ground that plaintiff failed to exhaust his intra-u/nion remedies?
The cases cited by defendants to support their contention that intra-union remedies must first be exhausted before relief may be sought from the courts fall short of the goal. Each case does hold that a union member must exhaust his intra-union remedies before the courts are available to him. However, this result follows only where: (1) the employer is seeking to enforce rights under a union contract, Field v. Local 652 UAW AFL-CIO (1967), 6 Mich App 140; (2) the claim is some impropriety of union management, Duffy v. Kelly (1958), 353 Mich 682; Mayo v. Great Lakes Greyhound Lines (1952), 333 Mich 205; (3) the claim is for damages for alleged wrongful discharge, Sewell v. Detroit Electrical Contractors Association (1956), 345 Mich 93; Kennedy v. UAW-AFL-CIO Local No. 659 (1966), 3 Mich App 629.
Defendants cite no case in which a plaintiff has been precluded from bringing an action for tort in the courts because of the failure to first exhaust intra-union remedies. Plaintiff’s claim does not involve internal union problems and, therefore, defendants’ arguments do not apply to the instant problem. We find that the trial court was correct in refusing to grant a summary judgment based upon plaintiff’s failure to first exhaust his intraunion remedies.
IV. Is there any evidence that defendant union was negligent ?
The trial judge submitted the case to the jury instructing that the union could be found liable on one of two theories. The trial judge first instructed that the union could be liable for the acts of the individual defendants if their conduct in assaulting the plaintiff was within the scope of their employment. He also instructed the jury that the union could be liable to the plaintiff for negligence in failing to use reasonable care to prevent injuries to the plaintiff.
Defendant union cites the case of Bradley v. Stevens (1951), 329 Mich 556. However, that case involved the negligence of a principal in the failure to investigate and learn the reputation of an employee-agent. Since the facts are, at best, only tangentially related to the facts presented here, its only relevance is in the most general terms.
However, even were we to find in defendant union’s favor on this issue, we have already decided, in discussing defendants’ Issues I and II, that sufficient evidence was presented to support the verdict based upon the first theory upon which the case was submitted to the jury. Since the union’s negligence is not necessary to find liability under that theory, the verdict of the jury must stand.
Reversed and remanded for a reinstatement of the jury verdict.
All concurred.
MCLA § 411.1 et seq. (Stat Ann 1968 Rev § 17.141 et seq.).
Schulte v. American Box Board Company (1959), 358 Mich 21, 33 (concurring opinion).
See also: Gottlieb v. Arrow Door Company (1961), 364 Mich 450; Industro-Motive Corporation v. Wilke (1967), 6 Mich App 708; Renfroe v. Higgins Mack Coating & Manufacturing Company, Inc. (1969), 17 Mich App 259.
Plaintiff, in response to defendants’ motion for summary judgment, submitted a sworn affidavit stating that he had never received payment for attending meetings of the Executive Board. The purpose of the affidavit was, of course, to rebut defendants’ contention that plaintiff was an employee.
A eodefendant did testify that members of the Executive Board did receive payment for attending meetings. However, the issue of whether or not plaintiff was an employee of the union did not arise until after the trial and the testimony was only elicited in an offhand manner while the witness was being examined by defendants’ attorney as to the circumstance surrounding the altercation. Therefore, defendants’ reliance on the testimony as establishing that plaintiff received payment for attending meetings is not warranted.
In any event, we do not consider plaintiff’s receipt of any payment for attending meetings, whether the payments be deemed wages or payments for expenses only, to be determinative in light of defendant union’s lack of control and its inability to hire and fire the plaintiff as well as its inability to discipline him. In terms of “economic reality”, therefore, we would still be constrained to find that plaintiff was not an employee in terms of the Workmen’s Compensation Act even if it had been conclusively established that plaintiff received payments from the union for attending meetings. | [
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O’Hara, J.
Charged with armed robbery, MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797), defendant subsequently entered a guilty plea to the lesser offense of unarmed robbery. MCLA § 750-.530 (Stat Ann 1954 Rev § 28.798). The plea was accepted and defendant received a sentence of 5 to 15 years in a correctional institution, with a special recommendation for trade education. Prom his conviction pursuant to the plea of guilty, defendant appeals directly to this Court.
It has been repeatedly held by the Courts of this state that an appeal is not the appropriate means by which to challenge the voluntariness of a guilty plea. People v. Taylor (1970), 383 Mich 338, 359, 360; People v. Dorner (1970), 24 Mich App 306; People v. Kenny Smith (1969), 20 Mich App 307.
Defendant claims he entered his guilty plea to the lesser offense because of the potential life imprisonment sentence imposable for robbery armed.
We have previously held that “a fulfilled promise of charge reduction is not ground for vacating a guilty plea even if the plea was induced thereby”. People v. Jackson (1969), 20 Mich App 414, 415, citing People v. Kindell (1969), 17 Mich App 22. Whatever he the pressures inherent in the plea-bargaining system, the defendant herein was not compelled to choose from alternatives which offended against constitutional limitations. North Carolina v. Alford (1970), 400 US 25 (91 S Ct 160, 27 L Ed 2d 162). Whether defendant would have otherwise entered a guilty plea does not render his plea involuntary so long as it was “knowingly and understandingly made with the benefit of counsel”. People v. Temple (1970), 23 Mich App 651, 660. Also, see McMann v. Richardson (1970), 397 US 759 (90 S Ct 1441, 25 L Ed 2d 763); Alford, supra.
An examination of the record clearly establishes the voluntariness of defendant’s guilty plea. The learned trial judge made searching inquiries as to the basis for the plea, indicated the consequences which could ensue from such action, and ascertained that defendant had adequate opportunity to consult with counsel prior to the entry of the plea.
Defendant additionally alleges his plea was coerced because he was incarcerated prior to arraignment and was unable to furnish hail. Thus, he concludes he was not able to prepare, nor assist in the preparation of his defense.
In his allegation that pretrial detention prejudicially affected preparations for trial, defendant does not indicate how his efforts were hindered or the nature of the defense, if any, which he otherwise could have offered.
We find no merit in the claim as made. While an accused should be afforded the benefit of a reasonable opportunity to withdraw a guilty plea before sentence, the same latitude is not allowed after sentence is imposed. People v. Severn (1942), 303 Mich 337.
Under the circumstances we are compelled to conclude, after careful consideration, that there is no suggestion of a miscarriage of justice, which is required to support setting aside the judgment of conviction entered upon his plea. MCLA § 769.26 (Stat Ann 1954 Eev § 28.1096).
Affirmed.
All concurred. | [
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R. B. Burns, P. J.
The defendant appeals his conviction by a jury of the crime of breaking and entering. Defendant’s contention that the trial judge erred in instructing the jury on aiding and abetting, when the evidence did not support this additional theory, has merit. No evidence tending to support such a charge was presented at trial level; thus it was reversible error for the trial judge to explain aiding and abetting to the jury. People v. Ware (1968), 12 Mich App 512.
Defendant’s argument that the case should be dismissed since he was denied his right to a speedy trial is without merit. Contrary to defendant’s view the “180-day rule” of MCLA § 780.131 (Stat Ann 1971 Cum Supp § 28.969 [1]), is inapplicable since there is no evidence that the Department of Corrections received notice of the breaking and entering charge. In addition defendant has not presented credible evidence that he was prejudiced by his delayed trial. Prejudice as a result of delay, not the delay itself, is the guideline this Court has adopted. People v. Hernandez (1968), 15 Mich App 141. See, also, People v. Albert White (1970), 27 Mich App 432; People v. Rios (1970), 27 Mich App 54. The United States Supreme Court has also indicated that actual prejudice must be shown. Dickey v. Florida (1970), 398 US 30 (90 S Ct 1564, 26 L Ed 2d 26).
We also find that on remand the following testimony of the police officer complained of by the defendant should be excluded (“He” refers to the defendant):
“He says, ‘You think you had trouble with me before, you are really going to have trouble with me now. I guess I will have to go back to busting safes again to make expenses. There isn’t a safe in Oakland County that I can’t open. I have never tried to bust one yet that I haven’t succeeded doing,’ and at this time the only question we had asked is, ‘How do you know so much about safes?’
“He says, ‘I worked for the Mosler Safe Company in Ohio for six months.’ ”
It has very little probative value and tends to interfere with the presumption of innocence.
Reversed and remanded for a new trial.
All concurred.
MCLA 1971 Cum Supp § 750.110 (Stat Ann 1971 Cum Supp § 28.305).
MCLA § 767.39 (Stat Ann 1954 Rev § 28.979).
SUS Const, Am 6; Const 1963, art 1, § 20. | [
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Per Curiam.
Defendant appeals from the grant of a permanent injunctive order and from the order denying his motion to dismiss. He states the single issue raised on appeal as:
“Is jurisdiction conferred upon a circuit court to issue injunctive relief upon a mere filing of a petition for an injunction, without instituting an action by filing a complaint and a summons being issued?”
April 15, 1970, plaintiff filed an ex parte application for a temporary restraining order with supporting affidavits and a request for an order to show cause why the temporary restraining order should not be made permanent. The same day an order to show cause why the proposed temporary restraining order should not be made permanent was entered. This order called for defendant’s appearance on April 16, 1970, at 2 p.m, to show cause as ordered, and the order was served on defendant April 15, 1970, at about 11:45 a.m.
April 16,1970, a temporary restraining order was entered by consent of the parties, and it required defendant to show cause April 22, 1970, at 2 p.m. why the temporary restraining order should not be made permanent. April 22, 1970, defendant filed a motion to dismiss, supported by his affidavit. Thereafter, the orders appealed from were entered.
The gist of defendant’s argument below and on appeal is that plaintiff commenced no action because he filed no complaint as required by GrCB. 1963, 101. Hence, the trial court acquired no jurisdiction.
Plaintiff contends that he proceeded under GCB 1963, 718, and that it permits commencement by application supported by affidavit. We agree with plaintiff.
A reading of entire rule 718, which is part of a separate chapter of the rules relating to special proceedings, convinces us that the circuit court may entertain jurisdiction of injunctive matters on application supported by affidavit. Especially pertinent is GCB, 1963, 718.2(1):
“Except as otherwise provided by statute or these rules, no preliminary injunctions may be granted until hearing on a motion or order to show cause why a preliminary injunction should not issue. If it clearly appears from specific facts shown by affidavit or by a verified complaint that immediate and irreparable injury, loss or damage, or physical injury will result to the applicant, a restraining order may he issued ex parte pending the hearing on the motion or order to show cause.”
Affirmed with costs to plaintiff. | [
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Per Curiam.
On July 11, 1959, Bobert LeTarte was married to the appellee, Margaruette J. (Gardner) LeTarte. Mr. LeTarte was a widower with three minor children; Mrs. LeTarte was a divorcee with no children. The parties lived together as man and wife until February of 1966, when they separated. On July 1, 1966, Mrs. LeTarte filed a complaint for divorce in the Muskegon County Circuit Court.
On the morning of trial, December 16, 1969, the case was settled in open court. Mr. LeTarte withdrew his answer and allowed the case to proceed pro confesso. The parties also decided on a property settlement, which was read into the record. Then, after Mrs. LeTarte’s testimony was taken, the trial judge made the following remarks to plaintiff’s counsel:
“The Court: A judgment of divorce will enter upon presentation of the proper form incorporating therein the complete property settlement which, as I understand, has been dictated upon the record between counsel?
“Mr. Wilson: Yes. Thank you, Judge.
“The Court: Have the property settlement in by Monday, December the 22nd.”
A docket entry was made by tbe clerk indicating that a judgment of divorce was granted to the plaintiff, and the entry was signed by the judge.
On December 20, 1969, Eobert LeTarte died before a final judgment of divorce had been presented to the trial judge for his signature. Mrs. LeTarte moved to dismiss the divorce action on the ground that no final judgment had been rendered and thus the case was moot. In a written opinion dated March 30, 1970, the court granted her motion to dismiss.
The personal representative of the deceased urges that a final judgment had been rendered by the court and requests that we enter a nunc pro tunc judgment of divorce. The appellee, Mrs. LeTarte, contends that no judgment of divorce occurred prior to her husband’s death and that the lower court should be affirmed.
We are faced here with a stopwatch question on which depends the distribution of the estate of Eobert LeTarte: if we determine that no judgment was rendered, Mrs. LeTarte takes a major part of the estate by survivorship; if we determine that the above-quoted language amounts to a rendition of judgment, Mrs. LeTarte will take only the property enumerated in the property settlement.
The conceptual difference between the rendition of a judgment and entry of a judgment has long been recognized in Michigan. Blickle v. Kent Probate Judge (1920), 211 Mich 216; Lewis v. Wayne County Sheriff (1953), 335 Mich 640. The rendition of the judgment is the judicial act by which the court decides the case in favor of one party or the other. The entry of the judgment is merely the ministerial act which records that a judgment has been rendered. The entry should come second in time and must be based upon an already existing judgment. See Lewis, supra. Thus, the mere fact that a judgment was entered on the circuit court docket by the clerk is not dispositive of the issue before us.
The question, then, is whether the statements of the trial judge quoted above constitute the rendition of a judgment of divorce in favor of the plaintiff. We think that they do not.
First, the language of the court is prospective only. The judge was merely saying in effect that Mrs. LeTarte was entitled to a divorce and that as soon as he was presented with and signed a judgment, the divorce would be granted. In Heck v. Bailey (1918), 204 Mich 54, 55, where a similar problem was presented, the Court held that the following language was not a rendition of judgment:
“ ‘Dorothy M. Bailey is entitled to a divorce on the grounds as is shown by the proofs in this case, of extreme cruelty, of nonsupport and desertion.
“ ‘The older children have shown a splendid loyalty to their mother, and the decree of divorce will be signed. The only question that remains is as to the property.’ ”
We are of the opinion that the statements of the trial court in this case are parallel to those made in the Heck case and require the same result. Nor do we think it significant that in our case the parties had agreed on a property settlement while in the Heck case the parties had not. It is clear that the trial judge’s statements were prospective only, even though the parties were in accord on how the property should be divided, and in any event, the trial judge felt that only the basic elements of the settlement had been agreed upon and that it had yet to be put into writing and submitted for his review.
Also, we are inclined to give great weight to the opinion of the trial judge, since he is the one whose acts are being interpreted. In his written opinion the court said:
“After much reflection, the court is convinced that there was not on December 16, 1969, a presently operative rendition of judgment which only awaited entry. The statement of the court was entirely prospective, and more remained to be done than merely to reduce to writing the oral record made in open court.”
We hold, therefore, that the action of the court on December 16, 1969, was not a rendition of a judgment of divorce and that the parties were married at the time of Robert LeTarte’s death.
This brings us to defendant’s second issue: whether defendant is entitled to an order entering judgment nunc pro tun as of December 16, 1969, in view of the fact that the case had already been submitted.
The clear rule in Michigan and the majority of states is that where one of the parties to a divorce action has died after the trial has concluded but before judgment, the action abates because there is no longer any marriage to dissolve. Wilson v. Wilson (1889), 73 Mich 620; Heck v. Bailey, supra. Since we have already decided that Mr. LeTarte died before a judgment of divorce was rendered, entry of a judgment nunc pro tunc is improper.
Affirmed.
GCR 1963, 522.3.
See generally, 19 ALR3d 648, § 7, p 659. | [
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Per Curiam.
After a trial by jury the defendant was convicted of robbery armed, MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797). The defendant contends that the trial court erred in denying his motion for a mistrial.
The motion for a mistrial was based on the alleged prejudice caused by the presence of a sawed-off shotgun in the courtroom even though the gun was never admitted into evidence. The prosecution’s chief witness identified the gun as similar to one used in the holdup, but when an objection was made to its admission into evidence the prosecutor withdrew his motion that the gun be admitted. The motion was not renewed. The defendant admitted that he was at the scene when the crime was committed and that a sawed-off shotgun was used by the holdup men, but denied that he participated in the commission of the crime.
Under the circumstance that a shotgun like the one exhibited to the jury was used in the commission of the crime was not disputed, the issue being whether the defendant participated in committing the crime, the people’s failure to lay a proper foundation for the admission of the gun into evidence did not require the granting of a mistrial. Thus, we find no reversible error.
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Per Curiam.
Defendant was charged in two indictments handed down by a Wayne County Circuit Court Grand Jury. In Docket No. 78639 (Circuit Court No. 83-731466), defendant was indicted on one count of conspiracy to bribe a public official, MCL 750.121; MSA 28.316, MCL 750.157a; MSA 28.354(1), and three counts of bribery of a public official under an aiding and abetting theory, MCL 750.121; MSA 28.316, MCL 767.39; MSA 28.979. A. J. Williams, Morris Levine and Thomas Crawford were named as coconspirators but not codefendants.
In Docket No. 78501 (Circuit Court No. 83-371476), defendant was indicted on one count of conspiracy to cause the acceptance of a bribe by a public official, MCL 750.118; MSA 28.313, MCL 750.157a; MSA 28.354(1), and two counts of acceptance of a bribe by a public official, MCL 750.118; MSA 28.313. James Wechsler was indicted as a coconspirator and codefendant on Count I only, and Morris Levine and Edward Kobitzski were named as coconspirators but not codefendants.
Defendant waived preliminary examination in both cases. By separate orders entered May 7, 1984, the trial court dimissed all counts of the indictment in No. 78639 and Count I only in No. 78501. The prosecutor appealed from those orders, as of right in No. 78639 and by leave granted in No. 78501, and the separate appeals were consolidated by this Court.
Both indictments arose out of an alleged kickback scheme involving defendant White (elected Mayor of the City of Ecorse in November, 1979), Morris Levine (appointed Ecorse City Engineer in November, 1979), Edward Kobitzski (Levine’s representative), and other persons. We address the prosecutor’s appeals separately below.
Appeal No. 78501
Count I of the indictment charged that from June 1, 1979, to December 1, 1982, defendant White and codefendant Wechsler, along with Levine and Kobitzski, conspired to cause the acceptance of a bribe by defendant White. Wechsler was bound over following a preliminary examination. On January 26, 1984, the trial court entered an order quashing the indictment as to Wechsler, finding insufficient evidence to support the bind-over. Defendant White thereafter moved to dismiss the conspiracy count on the ground that there was no congruent intent between himself, the alleged recipient of the bribe, and the other persons who allegedly conspired to give the bribe.
The Court in People v Carter, 415 Mich 558, 567; 330 NW2d 314 (1982), defined conspiracy as:
" '[A] partnership in criminal purposes’, United States v Kissel, 218 US 601, 608; 31 S Ct 124; 54 L Ed 1168 (1910), a mutual agreement or understanding, express or implied, between two or more persons to commit a criminal act or to accomplish a legal act by unlawful means.”
The gist of the crime of conspiracy lies in the unlawful agreement. People v Atley, 392 Mich 298, 311; 221 NW2d 465 (1974). A twofold specific intent is required for conviction: the intent to combine with others, and the intent to accomplish the illegal objective. People v Carter, supra, p 568, citing Perkins, Criminal Law (2d ed), ch 6, § 5, p 629. A conspiracy may be established by circumstantial evidence, but the circumstances "must be within safe bounds of relevancy and be such as to warrant a fair inference of the ultimate facts”. People v Beller, 294 Mich 464, 469; 293 NW 720 (1940); People v Atley, supra.
We find that the trial court erred in dismissing the conspiracy count on the ground that no congruent intent existed between White and the other coconspirators. First, the trial court had no evidence to review since defendant White waived the preliminary examination. The record of codefendant Wechsler’s preliminary examination could not be used in ruling on White’s motion to dismiss.
Second, it was the prosecutor’s theory that Levine and Kobitzski not only gave certain bribes to White, but also served as middlemen or "go-betweens” for certain bribes. The prosecutor should have been permitted to offer proof at trial of a chain conspiracy involving defendant White, Levine and Kobitzski.
Wharton’s Rule, which is an exception to the general principle that conspiracy and its target offenses are separately punishable, is inapplicable to this case. Wharton’s Rule was explained in People v Carter, supra, pp 570-571:
"This rule, which operates as a substantive limitation upon the scope of the crime of conspiracy, states that an agreement by two persons to commit a substantive crime cannot be prosecuted as a conspiracy where the crime itself necessarily requires the participation and cooperation of two persons. Thus, where concerted activity and a plurality of agents are essential elements of a substantive offense, Wharton’s Rule bars a prosecution for conspiracy to commit that crime.” (Footnote omitted.)
In the present case, more than the two individuals logically necessary to complete the target offense (the recipient of and giver of the bribe) were indicted for violation of the bribery statute. Since the number of alleged conspirators exceeded the number necessary to commit the target crime, Wharton’s Rule does not apply. People v Sesi, 101 Mich App 256, 265; 300 NW2d 535 (1980), lv den 411 Mich 1077 (1981). We conclude that the trial court erred in dismissing the conspiracy count against defendant White.
Appeal No. 78639
Counts II, III, and IV charged that on three occasions in 1980 defendant White aided and abetted A. J. Williams and Thomas Crawford in giving a bribe to himself. Defendant was charged under MCL 750.121; MSA 28.316, which provides:
"Any person interested directly or indirectly in a contract with a state or municipal institution who shall corruptly give, offer or promise to any officer of such institution any bribe, gift, or gratuity whatever, with intent to improperly influence his official action under such contract, shall be guilty of felony.”
Defendant was also charged under the aiding and abetting statute, MCL 767.39; MSA 28.979, which states:
"Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.”
Defendant asserted in his motion to dismiss] and the trial court apparently agreed, that the recipient of a bribe cannot be legally charged with aiding and abetting the giving of that same bribe.
In People v Palmer, 392 Mich 370, 378; 220 NW2d 393 (1974), the Court explained the term "aiding and abetting”:
"In criminal law the phrase 'aiding and abetting’ is used to describe all forms of assistance rendered to the perpetrator of a crime. This term comprehends all words or deeds which may support, encourage or incite the commission of a crime. It includes the actual or constructive presence of an accessory, in preconcert with the principal, for the purpose of rendering assistance, if necessary. 22 CJS, Criminal Law, § 88(2), p 261. The amount of advice, aid or encouragement is not material if it had the effect of inducing the commission of the crime. People v Washburn, 285 Mich 119, 126; 280 NW 132 (1938).”
See, also, People v Cortez, 131 Mich App 316, 333; 346 NW2d 540 (1984). "To be convicted as an aider and abettor, the defendant must either himself possess the required intent or" participate while knowing that the principal possessed the required intent.” People v Turner, 125 Mich App 8, 11; 336 NW2d 217 (1983); People v Karst, 118 Mich App 34, 39; 324 NW2d 526 (1982).
In the present case, the prosecutor should have been permitted to produce evidence at trial that defendant aided and abetted the giving of a bribe in violation of MCL 750.121; MSA 28.316. The crimes of accepting a bribe and giving a bribe are separate offenses. The recipient of a bribe may act passively and simply accept the gratuity without having participated actively in the conspiracy to give the bribe or in the crime of arranging for the giving of the bribe. However, where the receipient actively participates with those who give the bribe, he is chargeable as an aider and abettor in the crime of giving the bribe. We are aware of no Michigan authority which would per se preclude prosecution for aiding and abetting the giving of a bribe merely because the accused is the recipient of the bribe. Nor has defendant presented any persuasive reason for fashioning such a rule.
Defendant relies on In re Vickers, 371 Mich 114; 123 NW2d 253 (1963). In that case the Court considered whether a woman who had an abortion could be charged under a statute which declared a person guilty of a felony who, under certain circumstances, performed an abortion upon a woman. The statute did not provide that the woman herself would be guilty of an offense. Relying on People v Meisner, 178 Mich 115; 144 NW 490 (1913), the Court held that the woman could not be convicted as an aider and abettor under the statute.
In Meisner, p 117, the Court stated:
"Where an offense can be committed only by a specified class, aiders and abettors cannot be charged as principals if they are outside the statute designation. In Shannon v People [5 Mich 71, 87 (1858)], Justice Chkistiancy says:
" 'But even in a case of misdemeanor, if the person indicted cannot legally be guilty as a principal, as is sometimes the case where the principal offense can only be committed by a certain class of persons (and the defendant does not come within that class), he cannot be indicted as a principal where he only becomes guilty by the aiding and abetting; but if indictable at all, he must be indicted speciñcally for the aiding and abetting, as a substantive offense. This must be so in the nature of things, if there were no authorities to support it.’ ” (Emphasis added.)
In this case defendant was specifically indicted as an aider and abettor under the statute. We find nothing in Vickers or Meisner which would preclude defendant’s indictment as an aider and abettor.
The prosecutor should have been permitted to show that defendant, in his discussions with Levine and Kobitzski, supported and encouraged by words or deeds the latter persons to give a bribe in violation of MCL 750.121; MSA 28.316. The evidence may show that White assisted the crime by his encouragement and solicitation of the bribes. White’s participation in the kickback scheme with knowledge that the other parties intended to give bribes is sufficient to establish accessory liability. We conclude that the trial court erred in dismissing Counts II, III and IV.
The trial court also dismissed Count I of the indictment, which charged that defendant conspired with A. J. Williams, Morris Levine and Thomas Crawford to cause the giving of a bribe in violation of MCL 750.121; MSA 28.316.
The law of conspiracy is discussed in Appeal No. 78501, infra. Since defendant waived the preliminary examination, the trial court had no evidence upon which to review the motion to dismiss. We find that the prosecutor was entitled to present evidence that defendant conspired with the other named parties to cause the giving of a bribe in violation of the statute. As discussed previously, Wharton’s Rule does not preclude the prosecution because the number of alleged coconspirators exceeded the minimum number necessary to commit the crime of bribery of a public official.
We disagree with defendant’s contention that the recipient of a bribe cannot, as a matter of law, have the necessary intent to conspire with others to give a bribe to himself. The prosecutor may be able to show that defendant had the specific intent to combine with the other coconspirators with knowledge that they intended to bribe a public official. Thus, the twofold intent necessary for conspiracy may be shown at trial. We conclude that the trial court erred in dismissing the conspiracy count.
The trial court’s orders of May 7, 1984, are reversed and the cases are remanded for trial.
Reversed and remanded.
The conspiracy count against codefendant James Wechsler was quashed following a preliminary examination. The prosecutor’s appeal from that order is the subject of a separate opinion, People v Wechsler (Docket No. 67664, decided May 15,1985 [unreported]). | [
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M. J. Kelly, J.
The issue presented in this case is whether a remand for resentencing is required where the sentencing information report (SIR) prepared by the probation department contains a recommended minimum sentence range erroneously calculated under the sentencing guidelines. We hold that a remand is required only where the defendant has preserved this issue for appellate review by specifically objecting to the error at sentencing or by filing a motion to vacate the sentence prior to filing an appeal. Since defendant in this case failed to do either, we decline to remand for resentencing and we affirm.
Defendant pled guilty to one count of felonious assault, MCL 750.82; MSA 28.277, and one count of absconding while on bond, MCL 750.199a; MSA 28.396(1). On August 3, 1984, defendant was sentenced to consecutive prison terms of from 2 to 4 years on the felonious assault conviction and from 2-1/2 to 4 years on the absconding conviction, with a credit of 146 days to be applied to both sentences. The prosecution does not challenge the trial court’s application of credit.
Prior to the sentencing hearing, a SIR had been prepared for the felonious assault conviction only, since the sentencing guidelines do not apply to convictions for absconding. As a result of the probation officer’s improper use of defendant’s other convictions and his inaccurate characterization of the assault offense to which defendant had pled, defendant scored a prior record level of F and an offense severity level of III. On appeal, defendant contends, and the prosecution agrees, that the correct score would give defendant a prior record level of C and an offense severity level of II. In real terms, the proper calculation reduces defendant’s recommended minimum sentence range of from 24 to 32 months, as reported in the inaccurate SIR, to a range of from 6 to 18 months. The trial court sentenced defendant to a term of from 2 to 4 years on his felonious assault conviction. Defendant argues on appeal that if the court had been presented with an accurate SIR, defendant may have received a lesser sentence.
On the date scheduled for sentencing, defendant made two objections to the presentence report, one of which required an adjournment of the hearing to enable the prosecutor to obtain the complaining witness’s testimony regarding the underlying circumstances of the crime. The prosecution subsequently agreed to omit from the presentence materials reference to a threat allegedly made by defendant to the victim. At the second hearing, defendant’s attorney specifically referred to the recommended minimum range of from 24 to 32 months and made no objection to its accuracy. In fact, counsel requested that the court be guided by the recommended minimum range in imposing sentence rather than by the harsher sentence sought by the prosecutor’s office. At both sentencing hearings, defendant and his attorney were provided ample opportunity to allocute and neither objected to the accuracy of the SIR.
Moreover, appellate counsel failed to move to vacate defendant’s sentence in the trial court prior to filing this appeal. Nor has appellate counsel moved for a remand to the trial court after defendant’s claim of appeal was filed.
Use of the sentencing guidelines became mandatory as of March 1, 1984. See Administrative Order No. 1984-1, 418 Mich lxxx and Administrative Order No. 1985-2, 420 Mich lxii. Since that time, this Court has been called upon to resolve a variety of first impression questions involving the use and application of these mandatory guidelines. See for example, People v Ridley, 142 Mich App 129; 369 NW2d 274 (1985), and People v Fleming, 142 Mich App 119; 369 NW2d 499 (1985). Today, we are presented with another facet in the evolving law of sentence review. Where the sentencing court actually or arguably relies upon an inaccurate SIR in imposing sentence, does the defendant have a right to be resentenced?
Recently, in People v Love, 144 Mich App 374; 375 NW2d 752 (1985), another panel of this Court had occasion to consider an inaccurate SIR in the appellate context. In that case, defendant did object at the sentencing hearing to the accuracy of the SIR but failed to specify the basis for his objection. Not until defendant had filed his brief on appeal did he articulate his specific objections to the SIR scoring and at that point the prosecutor acknowledged that the SIR used at sentencing was incorrect. The parties could not, however, agree on a corrected score. This Court recomputed defendant’s SIR and concluded that an accurate SIR did not change the offense severity level and, as a result, the actual sentence imposed was within the recommended range. The Court then went on to hold that a defendant must object to inaccurate "scoring of the guideline factors on the record with as much specificity as possible”. 144 Mich App 378.
We agree that defendants must specifically object at sentencing to alleged SIR scoring inaccuracies. Absent any record of thse alleged inaccuracies, this Court is simply not in a position to evaluate the probation officer’s computations in a reliable fashion. Where an objection is raised below, the trial court is able to further evaluate the scoring procedures by making appropriate inquiries of the probation officer, defendant and counsel. If the defendant remains dissatisfied, he or she can then raise the issue on appeal, at which time we will have a record to review. People v Love, supra.
Our holding is consistent with the general rule that a defendant must preserve at the trial court level any challenge to a sentence based on alleged inaccurate information. See People v Hart, 129 Mich App 669, 675; 341 NW2d 864 (1983), lv den 419 Mich 860 (1984), and People v Mack, 112 Mich App 605, 613; 317 NW2d 190 (1981). We are not persuaded that manifest injustice will result absent appellate review even where, as here, the prosecution agrees that the probation department submitted an inaccurate SIR. The actual sentence imposed by the trial court in this case is well in keeping with this defendant’s criminal record. The prosecutor had recommended a much harsher sentence. We have reviewed the two sentencing transcripts and we find that the sentence imposed is justified by the reasons articulated by the trial court on the record.
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Per Curiam.
Defendant appeals as of right from her sentence of from 12 to 25 years in prison for her conviction of second-degree murder. Her conviction was premised on the dismissal of a first-degree murder charge in exchange for a plea of guilty to second-degree murder. On appeal defendant requests that her case be remanded for resentencing because the trial judge inaccurately com puted the minimum sentence range under the sentencing guidelines by assigning too high a score to certain sentencing variables. The sentence is affirmed.
This is a case of first impression in Michigan and arose from the following facts.
Jannifer Williams, defendant in the instant case, was a prostitute in Flint. On July 2, 1983, a Mr. Clayton employed defendant for the purpose of having sex with her. Defendant was living with Richard Harvey.
After engaging in sex with Clayton, defendant saw he had a fair sum of money. Defendant left Clayton in the room they were in and went to tell Harvey about the money. Defendant and Harvey agreed to rob Clayton.
Defendant and Harvey returned to the room. Harvey was armed with a gun. A struggle for the gun ensued and Clayton was mortally wounded. Defendant and Harvey then dumped Clayton and the gun in a field. They were arrested on July 13, 1983, and charged with first-degree murder.
Through a plea bargain defendant pled guilty to second-degree murder and the first-degree murder charge was nol-prossed. She was sentenced to from 12 to 25 years in prison.
On appeal defendant asserts that the trial court abused its discretion at sentencing by inaccurately computing the minimum sentence range by assigning improper scores for certain of the sentencing guideline variables. Defendant, therefore, requests the case be remanded for resentencing, because a correct computation of the sentencing guideline variables would result in a lower minimum sentence recommendation.
The prosecutor ignores the sentencing guideline issues and views the issue as being whether the sentence "shocks the conscience” of the appellate court, as outlined in People v Coles, 417 Mich 523; 339 NW2d 440 (1983).
We will address that issue along with the sentencing guideline issues.
The use of sentencing guidelines became mandatory for circuit courts in Michigan on March 1, 1985. There are two series of variables on the guidelines used to determine the minimum sentence range on the sentencing grid.
The first series of variables is Prior Record Variables (PRVs). There are seven PRVs the trial court must score. When tallied up the PRV score will fall into one of six Prior Record Levels, which range from A to F. A Prior Record Level of A generally indicates no past criminal history, and a Prior Record Level of F indicates an extensive criminal past.
The second series of variables is Offense Variables (OVs). Each OV is scored for the applicable crime group, which in the case at bar is homicide, and when added up the score will fall into an offense severity level of I, II, or III. I is the least severe level; III is the most severe.
The final Prior Record Level and Offense Severity Level are then used on the appropriate crime group guideline grid, which is determined by the statutory maximum for a particular crime group. The appropratie cell on the grid showing guideline range is then determined by finding the intersection of the Prior Record Level and Offense Severity Level.
In the instant appeal, defendant claims error by the trial court’s scoring of PRV 7 and OV 25.
Defendant claims the guideline sentence range should be 72 to 169 months, instead of the 144 months to life as calculated by the trial judge, because of claimed inaccuracies in the judge’s computation.
We note there is no sentencing guideline report in the court file and there are no objections on the record to the issues raised above. However, we accept as true the assertion in defendant’s brief as to the scoring of the various sentencing guideline factors, since those assertions are uncontroverted by the prosecutor. Further, we address the issues raised because they are of first impression and will certainly be raised again.
Defendant’s first assertion of sentencing guideline error is that the trial judge abused her discretion in giving defendant one point on the Prior Record Variable (PRV) 7 for having a current relationship with the criminal justice system. The trial judge apparently considered defendant’s probation in probate court as a current relationship with the criminal justice system, since the instant offense was committed during that probation.
Defendant agrues that the trial court’s consideration of the probate court probation as a relevant factor in the scoring of PRV 7 is improper, because that probation was the result of a juvenile offense. We disagree.
First, PRV 5 is a specific variable for "prior juvenile delinquency adjudication”. It would be incongruent to exclude the element of juvenile probation from PRV 7 when juvenile adjudications are specifically addressed in PRV 5. However, if a score is given under PRV 7 because of the existence of an order of juvenile probation, then no score should be given under PRV 5; and if a score is given under PRV 5, then no score should be given under PRV 7 for a juvenile probation. Only a PRV 7 juvenile probation score was given in the instant case.
Secondly, it is illogical to argue, as defendant does, that the juvenile justice system is separate and distinct from the criminal justice system. It is not. The juvenile justice system is quasi-criminal in nature since MCR 5.900, et seq., includes the basic elements of due process. See In the Matter of Chapel, 134 Mich App 308; 350 NW2d 871 (1984). The trial judge properly used her discretion in assessing a score for PRV 7.
Defendant next argues that the trial judge abused her discretion in basing the score for Offense Variable (OV) 25, the homicide contemporaneous criminal acts variable, on the assumption that defendant had committed three or more contemporaneous criminal acts. Defendant claims only two contemporaneous criminal acts occurred with the murder: robbery and prostitution. Again, we disagree.
The trial judge may have properly concluded defendant committed three or more contemporaneous criminal acts: prostitution, robbery and conspiracy.
A conspiracy is an agreement to do an illegal act. MCL 750.157a; MSA 28.354(1). People v Braylock, 118 Mich App 54; 324 NW2d 530 (1982).
Conspiracy is a crime separate and distinct from the crime the conspirators ultimately commit. People v Tinskey, 394 Mich 108; 228 NW2d 782 (1975).
The transcript of the plea clearly shows an admission to the crime of conspiracy by defendant:
"The Court: What did you do with Richard Harvey that night?
"The Defendant: I go downstairs and ask Richard do he want to pull a robbery and Richard say, 'Yeah.’ He say, 'Yeah’ to it.”
The trial judge did not abuse her discretion in giving a score of two for OV 25.
We hold a sentencing judge has discretion as to the number of points to be scored for any PR Vs and OVs of the sentencing guidelines, provided there is evidence on the record which adequately supports a particular score. For example, in the case at bar there was ample evidence for the trial judge to conclude that defendant was a member of a professional crime ring (OV 8), in that the instant offense was part of a pattern of criminal activities over a period of time from which the offender had derived a substantial portion of her income. In this case the record shows defendant earned her living as a prostitute and Harvey was her pimp, with whom she shared her earnings. The trial court apparently used its discretion in scoring this variable. If there were any mitigating factors, the sentencing guidelines provide a means to consider them. Further, the trial court must explain why it deviated from the guideline range.
We further hold any objections to the sentencing guidelines must be made on the record at sentencing. As to defendant’s claim that error arose during the trial court’s calculation of the minimum sentence range under the sentencing guidelines, we finally hold that a minimum sentence which falls within the sentencing guideline range is proper absent a clear abuse of discretion. The minimum sentence in this case is within both the range claimed to be correct by defendant and the range found pursuant to the trial court’s calculations. Furthermore, we agree with the prosecutor that the sentence imposed here does not shock the conscience of this Court, considering the heinous nature of the crime. Coles, supra.
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Per Curiam.
Mark C. Stack (hereinafter plaintiff) was first hired by International Telephone and Telegraph, Inc. at its United Plastics Division on July 23, 1974. His employment was terminated on April 15, 1976. In August, 1976, he was rehired by a different division of ITT and was again terminated in April, 1978. In both instances, plaintiffs employment was terminated by his supervisor, defendant Marcum.
Plaintiff and his wife then filed suit against ITT and Marcum. Plaintiff alleged that Marcum tortiously interfered with his business contract, and plaintiff’s wife alleged a derivative claim against Marcum for loss of consortium. Plaintiffs and ITT entered into a settlement and the suit against ITT was dismissed.
Marcum then filed a motion for summary judgment, GCR 1963, 117.2(1), arguing that plaintiffs failed to state a claim because Marcum was acting as an agent of ITT and a corporate defendant acting through its employee cannot induce a tortious breach of its own contract. Defendant also sought summary judgment as to plaintiff-wife’s claim because it, being derivative of her husband’s claim, cannot be maintained if summary judgment is granted as to plaintiff-husband’s claim. The trial court granted defendant’s motion and dismissed the complaint. Plaintiffs now appeal as of right. We reverse.
As we stated in Hinds v Dep’t of Corrections, 126 Mich App 99, 100-101; 337 NW2d 1 (1982),
"The standard governing this Court’s review of a grant or denial of a motion based on summary judg ment based on GCR 1963, 117.2(1) is well settled. The motion is to be tested on the pleadings alone. Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974). The motion tests only the legal basis of the complaint, not whether it can be factually supported. Borman’s, Inc v Lake State Development Co, 60 Mich App 175; 230 NW2d 363 (1975). The factual allegations of the complaint are taken as true, along with any inferences or conclusions which may fairly be drawn from the facts alleged. Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion under this subrule should be denied. Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426; 202 NW2d 577 (1972).”
Defendant argues, and the trial court apparently agreed, that the tort of intentional interference with contractual relations requires three distinct entities, two of which have a contractual relationship, and a third party, unrelated to the other two, who inferieres with the existing contractual relationship. See, Wilkinson v Powe, 300 Mich 275; 1 NW2d 539 (1942). Defendant further argues that because he was acting as an agent of ITT, a party to the contractual relationship, he cannot be held liable for interfering with what is, in essence, his own contract.
An identical argument was addressed and dismissed in Seven D Enterprises, Ltd v Fonzi, 438 F Supp 161, 163-164 (ED Mich, 1977), where the court held:
"Defendant Fonzi distinguishes Wilkinson v Powe, supra, from the case at bar on the ground that in Wilkinson the defendant was a stranger to the contract between the plaintiff and a third party, while in the instant case, he is the employee and agent of one of the contracting parties. He therefore asserts that whether or not he was justified in terminating the contracts is not a question for the jury to decide and, relying on Greyhound Corp v Commercial Casualty Co, 259 AD 317; 19 NYS2d 239 (App Div 1940), asserts that as a corporate employee and officer who acted on his employer’s behalf he is immune from a tortious interference with contract suit unless he committed a separate tort apart from the alleged interference. The court disagrees. The trier of fact must decide whether the defendant acted on his employer’s behalf or for his own beneñt when he terminated the contract and lease agreements the plaintiffs had with Interstate. The fact that Fonzi was employed by Interstate to exercise the authority he used to terminate these contracts does not immunize his conduct if he used his authority to further his own ends at the plaintiffs’ expense. The inference of regularity which might attach to his actions has been challenged by the plaintiffs, and the court cannot determine on the record before it that this challenge is frivolous or without merit.” (Emphasis added.)
Accord, A S Rampell, Inc v Hyster Co, 3 NY2d 369; 165 NYS2d 475; 144 NE2d 371 (1957); Phillips v Montana Education Ass’n, 187 Mont 419; 610 P2d 154 (1980). See, generally, Anno: Liability for Procuring Breach of Contract, 26 ALR2d 1227, §42.
We agree with the Court’s analysis in Fonzi, and hold therefore that plaintiff-husband stated a valid claim against defendant, making summary judgment under GCR 1963, 117.2(1) inappropriate. Because plaintiff-husband’s claim is still viable, plaintiff-wife’s claim, being derivative in nature, is also viable.
Reversed and remanded. | [
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On Remand
Before: R. M. Maher, P.J., and Allen and M. J. Kelly, JJ.
Per Curiam.
This is the third occasion for this case before this Court. Originally, we held that because the alleged negligent acts of defendant Police Chief Walter Krasny were ministerial in nature he was not entitled to assume the cloak of official immunity to shield himself from potential liability. Young v Ann Arbor, 119 Mich App 512, 519; 326 NW2d 547 (1982). Judge Maher dissented.
Subsequently, application for rehearing was granted. Upon rehearing, we concluded that under the "scope of employment” test for individual immunity defendant Krasny would be entitled to claim official immunity. Therefore, we reversed our earlier opinion and affirmed the trial court’s direction of verdict in Krasny’s favor. Young v Ann Arbor (On Rehearing), 125 Mich App 459, 461-462; 336 NW2d 24 (1983). Judge (now Justice) Cavanagh dissented, claiming that the proper test for individual immunity remained the discretionary-ministerial test.
Justice Cavanagh was the better prophet. Upon application for leave to appeal, the Supreme Court, in lieu of granting leave to appeal, remanded the case to this Court for reconsideration in light of the Supreme Court’s opinion in Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). 422 Mich 900 (1985) (Cavanagh, J., not participating). (1985). In that case, the Supreme Court reaffirmed its support of the discretionary-ministerial test, now known as the "discretionary-decisional versus ministerial-operational” test.
Applying that test to the facts of this case, we readopt our original holding that defendant Krasny’s alleged negligence was ministerial-operational in nature. It will be recalled that the Ann Arbor facility was mandated to follow departmental rules and regulations. Defendant Krasny was responsible for overseeing and enforcing relevant policies and practices. He had no discretion, therefore, to permit deviations from those rules and regulations. Paraphrasing Ross, supra, defendant Krasny’s actions were those which involved the performance of a duty in which he had little or no choice, the execution of which might have entailed some minor decisions. Thus, under Ross, supra, defendant Krasny is not entitled to individual immunity. Having so decided, it is still necessary to determine whether the trial court properly granted a directed verdict in his favor.
On appeal from a trial' court order granting a motion for a directed verdict, this Court will view the evidence presented in the light most favorable to the nonmoving party. Cody v Marcel Electric Co, 71 Mich App 714; 248 NW2d 663 (1976), lv den 399 Mich 851 (1977); Hensley v Colonial Dodge, Inc, 69 Mich App 597; 245 NW2d 142 (1976). The proper test for determining whether the motion should be granted is whether or not evidence was offered upon which reasonable minds could differ. Armstrong v LeBlanc, 395 Mich 526; 236 NW2d 419 (1975).
It has already been established that defendant’s duty was to see that the required departmental rules and regulations were enforced. Defendant’s own testimony indicates that he did not require compliance. That evidence is sufficient to preclude the direction of a verdict in his favor. The trial court committed reversible error in so directing.
Reversed. No costs. | [
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Per Curiam:.
Defendant appeals as of right from a jury verdict of $350,000, reduced by ten percent for comparative negligence, which was awarded to plaintiff in his action for damages for injuries sustained because of the unseaworthiness of a ship operated by defendant. Thereafter, plaintiff filed a motion for judgment notwithstanding the verdict regarding the jury verdict finding plaintiff comparatively negligent. However, before that motion was decided, defendant filed its claim of appeal. Subsequently, the trial court granted plaintiff’s motion and set aside the verdict of comparative negligence. Thereafter, pursuant to MCR 7.205(F), de fendant filed an application for delayed appeal as of right from that order. Pursuant to MCR 7.250(D), we peremptorily resolve the issue on the merits in conjunction with the issues raised in defendant’s initial appeal as of right.
Defendant first argues that the trial court erred by denying defendant’s motion to dismiss for lack of jurisdiction because defendant did not have sufficient contacts with Michigan to establish either general or limited personal jurisdiction over the corporation under MCL 600.711; MSA 27A.711 or MCL 600.715; MSA 27A.715. We disagree with this contention. The defense of lack of personal jurisdiction is waived unless it is properly raised in a party’s first responsive pleading. GCR 1963, 116.2. In this case, defendant asserted only that "plaintiffs complaint fails to state a cause of action against its answering defendant for the reason that this Court lacks jurisdiction in the premises” in its answer. Defendant did not indicate in any way whether this bald assertion attacked the court’s subject matter jurisdiction, its jurisdiction over the property, or its jurisdiction over defendant. Nothing further was alleged or argued by defendant until four years later, immediately before trial. At that time, defendant asserted the court’s lack of jurisdiction, arguing not that the court did not have jurisdiction over the party or parties, but rather that, although the court did have such jurisdiction, the Michigan court was an inconvenient forum, i.e., forum non conveniens. Under these circumstances, we find that defendant waived its right to assert its jurisdictional defense.
Defendant next argues that the trial court improperly awarded prejudgment interest on the jury verdict in accordance with MCL 600.6013; MSA 27A.6013. The jury verdict did not include such interest and the interest was awarded by the court in its judgment. Defendant subsequently moved for relief from the judgment, but the motion was denied.
We find that the trial court did err by awarding plaintiff prejudgment interest on the judgment. An action in admiralty, such as plaintiffs claim of the unseaworthiness of defendant’s vessel, should be tried under the applicable rules of admiralty even when brought in a state court. Sullivan v Pittsburgh Steamship Co, 230 Mich 414, 419; 203 NW 126 (1925). Unfortunately, the federal courts, charged with interpreting those rules, have reached different conclusions on the question of whether a court may award prejudgment interest on damages sustained as the result of a maritime tort. See Canova v Travelers Ins Co, 406 F2d 410 (CA 5, 1969), cert den 396 US 832; 90 S Ct 88; 24 L Ed 2d 84 (1969), Petition of the City of New York, 332 F2d 1006 (CA 2, 1964), cert den 379 US 922; 85 S Ct 277; 13 L Ed 2d 335 (1964), and Peterson v Chesapeake & O R Co, 582 F Supp 1581 (WD Mich, 1984). In this case, because this is a matter of federal law, we follow the direction of the Sixth Circuit. Ogletree v Local 79, Service Employees International Union, 141 Mich App 738; 368 NW2d 882 (1985). On this issue, the Sixth Circuit has held that interest may not be awarded on personal injury and death claims in admiralty until the amount of damages has been fixed by judicial determination. Peterson, supra, 582 F Supp 1582, and cases cited therein. We also note that the United States District Court for the West ern District of Michigan has held, in Peterson, supra, that where the admiralty cause of action is tried solely to a jury, as it was in this case, prejudgment interest may only be granted by the jury. 582 F Supp 1583. Under either of these analyses, the trial court should not have awarded plaintiff prejudgment interest. We, therefore, vacate that portion of the judgment.
Defendant next argues that the trial court erred by instructing the jury on the issue of seaworthiness when plaintiff did not present any expert testimony to support its theory. We disagree. Plaintiff’s theory was supported by his testimony and that of a fellow crewman. Together, they presented testimony which established that plaintiff was struck with tremendous force by a cut line which came over a bitt as the capstan winch was activated and that plaintiff was in the position to be struck because of a dangerous oil slick which permeated the working area. This evidence was sufficient to establish that the vessel was not reasonably fit for its intended use. Shemman v American Steamship Co, 89 Mich App 656, 665; 280 NW2d 852 (1979), lv den 407 Mich 875 (1979). We also note that defendant did not object at trial to the giving of the instruction now complained of and that defendant has not cited any authority for the proposition defendant now asserts on appeal.
Defendant next argues that the trial court erred by denying defendant’s motion for remittitur. After reviewing the record, we conclude that the trial court did not abuse its discretion by denying the motion for remittitur. Jones v Sanilac County Road Comm, 128 Mich App 569, 592; 342 NW2d 532 (1983), lv den 419 Mich 936 (1984).
Defendant’s final claim is that the trial court erred by setting aside the jury’s verdict finding plaintiff comparatively negligent. We agree. A motion for judgment notwithstanding the verdict should be denied if, viewing the facts in a light most favorable to the motion’s opponent, reasonable persons could differ. Wilson v Chesapeake & O R Co, 118 Mich App 123; 324 NW2d 552 (1982), lv den 417 Mich 1044 (1983). The defense of comparative negligence requires evidence of some negligent act or omission by the plaintiff. Kingston v Markward & Karafilis, Inc, 134 Mich App 164, 175-176; 350 NW2d 842 (1984).
In the instant case, the ship’s captain testified that a seaman of ordinary experience would be aware of the dangers of stepping inside a bight of rope. The fellow crewman testified that in order for plaintiff to perform the task to which he was assigned at the time of the injury, it was necessary for him to work next to or amidst the bights of the lines. Plaintiff, however, testified that the first mate ordered him to stand inside the bight of the rope. The trial court described plaintiff’s testimony as "unrefuted”.
There was a question of fact as to whether plaintiff, in order to perform the assigned task, had to stand inside the bight of the rope, exposing himself to the injury which he suffered, or whether, albeit with some difficulty, he could have performed the task without stepping inside the bight of the rope. The finding of only ten percent comparative negligence suggests that the jury found that plaintiff could have avoided the injury, but only by being extremely careful and by constantly observing his position with respect to the bights of the lines and that accordingly, defendant was far more negligent for assigning plaintiff to the task without appropriate safeguards, supervision, or assistance.
Furthermore, the fact that plaintiff’s description of the first mate’s order is unrefuted means noth ing; the jury was still free to disregard this testimony as not credible, or, if credible, to give it no weight. People v Jackson, 390 Mich 621, 625, fn 2; 212 NW2d 918 (1973). The issue was whether defendant carried its burden of coming forward with some evidence of plaintiffs negligence. The captain’s testimony is precisely such evidence, for it suggests that a competent seaman would not step inside a bight of a rope to perform any task. The trial court erred in granting plaintiffs motion for judgment notwithstanding the verdict because there was evidence from which reasonable persons could disagree as to whether plaintiff was negligent.
Affirmed in part; reversed in part. The judgment is modified to the extent provided by this opinion.
We reject plaintiffs argument that this Court should not address the merits of defendant’s claims on this issue because the proceedings on the motion were not transcribed and forwarded to this Court. Defendant is appealing from the underlying judgment, and this Court is not disadvantaged in any way by the omission of the motion transcript because the trial court reached a purely legal conclusion on the issue of whether or not to award prejudgment interest. | [
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Per Curiam.
Plaintiff appeals from an order of the Macomb County Circuit Court granting defendants Wolfs’ motion for summary judgment of dismissal, GCR 1963, 117.2(1).
Defendants Herbert and Katherine Wolf held a family reunion at their home in Tuscola County. Plaintiff is a cousin of Katherine Wolf. Another cousin, defendant Richard George, brought "land skis”, two wooden planks with foot holes made from pieces of inner tube which he manufactured himself, to the reunion. A game was played with the land skis involving two teams which were to race down to a tree in the yard and back. According to defendants, everyone fell down when they played. The third time plaintiff fell, she sustained injuries to her hip and pelvis which may require long-term medical care. Plaintiff filed this action to recover damages for her injuries.
The trial court granted defendants Wolfs’ motion for summary judgment based solely on the ground that the recreational use statute, MCL 300.201; MSA 13.1485, precluded plaintiffs action against the defendant landowners. The issue on appeal is the correctness of the trial court’s application of that statute to this case.
The recreational use statute provides:
"No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant, or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant, or lessee.”
Plaintiff, citing various indications of legislative intent, argues that the statute was not intended to protect landowners from liability for injuries occurring in their backyards. Defendants Wolf own a tract of land measuring 7.8 acres, but the land ski game was allegedly played on the lawri behind the garage.
The duty of the courts is to interpret statutes as we find them. Melia v Employment Security Comm, 346 Mich 544, 561; 78 NW2d 273 (1956). A plain and unambiguous statute is to be applied, and not interpreted, since such a statute speaks for itself. Lansing v Lansing Twp, 356 Mich 641, 649; 97 NW2d 804 (1959). The courts may not speculate as to the probable intent of the Legislature beyond the words employed in the act. Id. Ordinary words are to be given their plain and ordinary meaning. Carter Metropolitan Christian Methodist Episcopal Church v Liquor Control Comm, 107 Mich App 22, 28; 308 NW2d 677 (1981).
This statute, as the trial court has already observed, is clear and unambiguous. Plaintiff was a person on the lands of another, without paying a consideration, for the purpose of an outdoor recreational use. The statute offers nothing on its face excluding from its application the backyard of residential property. If the Legislature did not intend the statute to apply to parcels of land this size, it was within its power to insert words limiting the statute’s application, e.g., to lands in their natural state. As we, however, are constrained to apply the statute as written, we cannot say that the trial court erred in relieving defendants of liability based on the recreational use statue.
The recreational use statute does not protect landowners from liability for gross negligence or for wilful and wanton misconduct. Plaintiff’s complaint, however, does not include allegations sufficient to make out a claim either of gross negligence or of wilful and wanton misconduct. McNeal v Dep’t of Natural Resources, 140 Mich App 625, 633; 364 NW2d 768 (1985); Matthews v Detroit, 141 Mich App 712, 717-718; 367 NW2d 440 (1985). The trial court correctly concluded that plaintiff had failed to state a claim of gross negligence or of wilful and wanton misconduct.
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Per Curiam.
The issue in this case is whether plaintiffs are precluded from seeking contribution from a defendant who was found not liable in an action separate from that in which plaintiffs were found liable.
Robert Hurd was injured in an automobile accident in 1979 on the Davison Freeway in Highland Park. Hurd filed a negligence action against Fred Duncan, driver of the truck, and The Singer Company, owner of the truck, in Wayne County Circuit Court. Both Duncan and Singer are plaintiffs-appellants in the instant case.
Prior to trial on that action, Hurd filed suit in the Court of Claims against the State Highway Commission, defendant-appellee in the instant action. The circuit court and Court of Claims actions were consolidated for trial.
At the consolidated trial, following opening statement by counsel for Hurd and some presentation of proofs, a directed verdict was entered in favor of the State Highway Commission. Trial continued, and Duncan and Singer were found liable and judgments were entered against them.
Appellants, Duncan and Singer, then filed this action in the Court of Claims seeking contribution from the state on the basis of comparative fault. Defendant, State Highway Commission, moved for summary judgment, contending that the issue of the state’s alleged failure to maintain the highway was res judicata, precluding an action for contribution. The Court of Claims judge agreed with the state, finding that even though Duncan and Singer were not parties to Hurd’s action against the state, res judicata applied because the trials were not separate.
From the summary judgment entered against them in their action for contribution, plaintiffs appeal as of right.
We think defendant’s motion should have been one for accelerated judgment, GCR 1963, 116.1(5), which bars claims because of a prior judgment, and we will treat it as such.
Defendant argues, and the trial court found, that the issue of defendant’s liability is res judicata, having already been litigated in the Hurd action against defendant. Res judicata bars the reinstitution of the same cause of action by the same parties in a subsequent suit. Topps-Toeller, Inc v Lansing, 47 Mich App 720, 727; 209 NW2d 843 (1973), lv den 390 Mich 788 (1973). The Michigan statute authorizing contribution, MCL 600.2925; MSA 27A.2925, established a substantive cause of action independent of the underlying suit which gave rise to it. Sziber v Stout, 419 Mich 514, 527; 358 NW2d 330 (1984). Appellants’ claim for contribution in this case is a different cause of action than Hurd’s claim of negligence; moreover, appellants were not parties to the Hurd action against defendant. Res judicata is clearly inapplicable here.
When the subsequent action is based on a new cause of action, the prior litigation is conclusive only as to issues actually litigated. This is the doctrine of collateral estoppel. People, ex rel Director of Conservation v Babcock, 38 Mich App 336, 346; 196 NW2d 489 (1972). The requirement that the respective litigants were parties or privy to a party to an action in which a valid judgment has been rendered is critical to the assertion of collateral estoppel. Howell v Vito’s Trucking & Excavat ing Co, 386 Mich 37, 42; 191 NW2d 313 (1971). This is known as privity:
" 'Under the requirement of privity, only parties to the former judgment or their privies may take advantage of or be bound by it. A party in this connection is one who is "directly interested in the subject matter, and had a right to make defense, or to control the proceedings, and to appeal from the judgment.” A privy is one who, after rendition of the judgment, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by inheritance, succession, or purchase.’ ” Howell v Vito’s, supra, p 43 (citations omitted).
Michigan also requires that there be mutuality of estoppel. Mutuality is present if both ligitants in the second suit are bound by the judgment rendered in the first suit. Stolaruk Corp v Dep’t of Transportation, 114 Mich App 357, 362; 319 NW2d 581 (1982).
In order for collateral estoppel to apply, the parties must also have had a full opportunity to litigate the ultimate issues in the former action. Fifield v Edwards, 39 Mich 264 (1878); Stolaruk, supra, p 362. The Stolaruk Court found that plaintiff had a full and fair opportunity to litigate the issue in question because both parties presented arguments on the issue and plaintiff chose not to present any additional evidence at that time.
In the instant case, in contrast, not only were appellants not parties to the prior action, but there is no indication that the issue of defendant’s negligent maintenance of the highway was fully litigated. The transcript of the Hurd trial has not been provided to us, but in aruging against the motion for summary judgment in this contribution action, appellants’ attorney explained that, in his opening statement in the Hurd trial, counsel for Hurd stated that he had no evidence against the state; counsel for the state immediately requested a directed verdict; the court held it in abeyance until a highway employee took the stand and authenticated the major trial exhibit, a chart showing the highway where the accident occurred, after which the court granted the motion for directed verdict for the state.
If this is an accurate portrayal of the trial proceedings, it would not consitutue a full litigation of the issue for purposes of collateral estoppel.
Defendant argues that appellants could have filed a claim against defendant, but never did. Appellants could have sought to file a third-party complaint against defendant, or sought to intervene in the Court of Claims action; they did neither, for reasons unknown.
However, appellants were not required to file a claim against defendant to preserve their right of contribution. MCL 600.2925c; MSA 27A.2925(3) permits a tortfeasor to seek contribution in a separate action, so that "plaintiffs caprice in choosing to join or not to join third-party defendants is not determinant of third-party plaintiffs’ right to contribution”. Sziber v Stout, supra, p 527, citing Caldwell v Fox, 394 Mich 401, 420; 231 NW2d 46 (1975). The fact that a codefendant could have filed a cross-claim does not bar by res judicata a later action against the codefendant on a cross-claim action not filed. Cook v Kendrick, 16 Mich App 48, 51; 167 NW2d 483 (1969).
In this case, matters were complicated by the fact that the potential third-party defendant was an agency of the state, against which claims for money damages may be brought only in the Court of Claims. Appellants therefore could not have impleaded the state. They could have sought to intervene in the Court of Claims action, but they were not required to do so. Although it would have been expedient for them to have attempted that route, their claim for contribution cannot be barred on collateral estoppel grounds because they did not.
The cases on which defendant relies are distinguishable. In Johnson v Bundy, 129 Mich App 393; 342 NW2d 567 (1983), the parties to the indemnification action had been parties to the original action, and that was the Court’s basis for not following Cook v Kendrick, supra. Unlike the parties in Braxton v Litchalk, 55 Mich App 708; 223 NW2d 316 (1974), it cannot be said that Hurd’s interest in prosecuting his claim against the state was substantially identical to appellants’ interest in obtaining contribution from the state. The decision in Darin & Armstrong v Ben Agree Co, 88 Mich App 128; 276 NW2d 869 (1979), lv den 406 Mich 1007 (1979), hinged on the special nature of the indemnitor-indemnitee relationship. In the instant case, although appellants asserted claims for both indemnification and contribution, they have not pursued their indemnification claim.
In conclusion, we find res judicata inapplicable here because appellants’ contribution claim is a cause of action different from those ivolved at trial. We find collateral estoppel inapplicable because it is not at all apparent that the issue of defendant’s negligence was fully litigated at trial, but even if it were, appellants were not party to that action, and their failure to intervene does not bar a separate action for contribution.
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R. L. Tahvonen, J.
Defendant Peggy Jenkins is the daughter of Matt Jenkins. Matt Jenkins died in October, 1980, when his car exploded after Frederic Grasfeder placed explosives in Jenkins’s car at the request of Jenkins’s wife, Geraldine. In this declaratory action, plaintiff, State Farm Fire & Casualty Company, asserted it was not liable to Matt Jenkins’s estate under a homeowners’ policy issued to Frederic Grasfeder. The trial court agreed, and granted summary judgment in plaintiffs favor, GCR 1963, 117.2(3) (now MCL 2.116[C][10]). Defendant Peggy Jenkins appeals as of right. We affirm.
In 1981, defendant Peggy Jenkins, as personal representative of the estate of Matt- Jenkins, filed a wrongful death action in circuit court against Geraldine Jenkins and Frederic Grasfeder. She alleged that Grasfeder negligently placed an excessive amount of explosives in Matt Jenkins’s automobile. When Mr. Jenkins operated the car, it exploded and killed him.
Plaintiff, State Farm, responded to the wrongful death action by filing the present action for declaratory judgment contesting its liability to pay any judgment against its insured, Frederic Grasfeder. State Farm claimed that it was not liable because its policy excluded coverage for a "bodily injury or property damage which is intended or expected by the insured”. Grasfeder did not respond to plaintiffs complaint and is not a party to this appeal. In granting plaintiffs motion for summary judgment, the trial court ruled that Grasfeder should have expected serious injury or death to occur when he placed the explosive device in Jenkins’s automobile.
After defendant’s claim of appeal was filed, both parties requested this Court to remand the case to the trial court to supplement the record. That request was granted. Thereafter, the trial court ordered the record supplemented with Mr. Grasfeder’s deposition and the transcript of his guilty plea to second-degree murder.
At the time he pled guilty to second-degree murder in Wayne County Circuit Court, Grasfeder told the judge:
"I am, or was, madly in love with a certain young lady, and as a result of that, I did as she requested.
"I placed an explosive device in her husband’s car, and as a result, he died.”
At his deposition, Grasfeder explained that he first met Geraldine Jenkins (then Geraldine Armstrong) in February, 1978. Although he lived in Tennessee and Geraldine lived in Michigan, an intimate relationship followed and continued on a sporadic basis until July, 1978. Thereafter, he maintained telephone contact with Geraldine until November, 1978. In December, 1979, Grasfeder learned that Geraldine had married Matt Jenkins. Grasfeder telephoned her and met her in Nashville, Tennessee, in February, 1980. Following their meeting, they renewed their friendship and kept in contact by letters and telephone calls. Grasfeder was aware during this time that Geraldine was experiencing problems with her marriage. While he was visiting in Michigan in September, 1980, Geraldine asked for his assistance in "straightening her old man out”. According to Grasfeder, Geraldine asked him to place an explosive device in her husband’s automobile in order to scare him. Grasfeder agreed to help her and returned to Tennessee to secure items needed for an explosive device. One of the items he obtained was ammonium nitrate. Grasfeder said that he had used the substance to remove obstructions while in the National Guard. Grasfeder planned to attach a device containing the ammonium nitrate to Mr. Jenkins’s transmission, disabling the automobile. Before returning to Michigan, he tested the explosive device to determine the amount of ammonium nitrate needed to cause a minor explosion. Geraldine met him when he arrived in Michigan and drove him to her husband’s automobile. Grasfeder attached the explosive device somewhere in the vicinity of the automobile’s transmission.
Grasfeder admitted that he was aware of the fact that the Michigan State Police determined that the explosion which killed Mr. Jenkins had the force of at least three sticks of dynamite and that the explosion occurred under the driver’s seat. He theorized that the dynamite had been attached to the automobile after he left and that the ammonium nitrate explosion caused the dynamite to detonate. Grasfeder denied that he ever had any intention or expectation that Mr. Jenkins would be killed by his explosive device. He also denied that any romantic link remained between him and Geraldine. He explained that they were merely good friends and that he wanted to help her because she had been physically abused by Mr. Jenkins. Grasfeder also explained that he pled guilty to second-degree murder rather than face a trial on a first-degree murder charge.
The sole issue before us is whether the trial judge erred in granting summary judgment in plaintiffs favor under GCR 1963, 117.2(3) (now MCR 2.116[C][10]). A motion for summary judgment grounded on a claim that there is no genuine issue as to any material fact is designed to test whether there is factual support for a claim or defense. Before the court can grant summary judgment, it must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome. Rizzo v Kretschmer, 389 Mich 363, 370-374; 207 NW2d 316 (1973).
In Morrill v Gallagher, 370 Mich 578, 588; 122 NW2d 687 (1963), the Supreme Court held that, where an insurance policy excludes intentional injury, both an intentional act and an intentional injury must be demonstrated. Here, the homeowners’ policy in question excludes personal liability coverage for a "[b]odily injury or property damage which is expected or intended by the insured * * (Emphasis added.) Thus, unlike Morrill v Gallagher, supra, the exclusion here is broader and encompasses both intended or expected injury.
In construing an intentional injury exclusion, courts in some jurisdictions hold that there is no difference between the terms "intended” and "expected”, while other courts recognize that the terms are not synonymous. See generally, Anno: Construction and application of provision of liability insurance policy expressly excluding injuries intended or expected by insured, 31 ALR4th 957, § 4, pp 981-983. In Linebaugh v Berdish, 144 Mich App 750; 376 NW2d 400 (1985), this Court recognized that there may be a difference between policies which exclude only intentional injuries and policies which exclude both intentional and expected injuries. Linebaugh, however, is not dispositive because the policy itself only excluded intentional injuries.
Of the Michigan cases cited by the parties, only Group Ins Co of Michigan v Morelli, 111 Mich App 510; 314 NW2d 672 (1981), construes a policy which excluded both intentional and expected injuries. In Morelli, the question was whether or not the insurance company had to defend and indemnify its insured in an assault and battery action by Nesbitt. The Court held:
"The injury sustained by Nesbitt was the natural, foreseeable, expected and anticipatory result of the intentional act of Morelli. As such, we find that both the act and injury were intentional and, thus, within the exclusion provision of the policy coverage. Hence, plaintiff had no duty to defend or indemnify defendant.” 111 Mich App 516 (emphasis added).
Thus, if the Court recognized a distinction between intentional injuries and expected injuries in Morelli, the Court found the distinction unimportant under the facts since the injuries were clearly intentional.
We believe, where a policy excludes coverage for intended or expected injuries, a distinction should be drawn between the terms "intentional” and "expected”. In order to avoid liability for an expected injury, it must be shown that the injury was the natural, foreseeable, expected, and anticipatory result of an intentional act. Morelli, supra, p 516.
In the present case, we find that the trial court correctly found that Grasfeder expected the injury which resulted when he placed the explosives in Jenkins’s car. Death or serious injury was the natural, foreseeable, expected, and anticipated result of Grasfeder’s intentional act of placing the explosives.
Grasfeder’s guilty plea to second-degree murder is dispositive. To convict of second-degree murder, the prosecution must prove beyond a reasonable doubt that the defendant intended to kill or intended to do great bodily harm or committed a wanton and wilful act the natural tendency of which is to cause death or great bodily harm. CJI 16:2:04. We are persuaded that, at the very least, Grasfeder’s plea of guilty to second-degree murder establishes that he did a wanton and wilful act, the natural tendency of which is to cause death or great bodily harm. We are further persuaded that one who commits an act that has a natural tendency to cause death or great bodily harm can reasonably expect those results to ensue from commission of the act. We are therefore persuaded that the guilty plea conclusively established that Grasfeder, at a minimum, expected death or seri ous bodily harm. That being the case, the express language of the policy excludes coverage and the trial court correctly granted summary judgment.
Affirmed.
See Putman v Zeluff, 372 Mich 553, 556; 127 NW2d 374 (1964); Morrill v Gallagher, supra, p 588; Farm Bureau Mutual Ins Co v Rademacher, 135 Mich App 200, 201-202; 351 NW2d 914 (1984); Iacobelli Construction Co, Inc v The Western Casualty & Surety Co, 130 Mich App 255, 264; 343 NW2d 517 (1983); Kermans v Pendleton, 62 Mich App 576, 579; 233 NW2d 658 (1975); Vermont Mutual Ins Co v Dalzell, 52 Mich App 686, 689; 218 NW2d 52 (1974), lv den 392 Mich 803 (1974); Hawkeye Security Ins Co v Shields, 31 Mich App 649, 654; 187 NW2d 894 (1971), which all construed policies which excluded intentional injuries.
In her supplemental brief, Jenkins argues that Grasfeder’s guilty plea should not collaterally estop her from litigating the issue of whether Grasfeder intended or expected the injury. We agree with Jenkins that because she was not a party in the criminal action, the doctrine of collateral estoppel does not bar litigation of the issue. We believe, however, that the trial judge properly found no issue of material fact. | [
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Per Curiam.
A jury returned a verdict of no cause of action in favor of the defendants in this personal injury action. The plaintiffs motion for a new trial was denied and this appeal follows as of right.
Plaintiff contends error resulted when the trial court instructed the jury on sudden emergency, SJI2d 12.02. We disagree.
An accident occurred on September 23, 1978, when an automobile driven by defendant Lan H. Bui struck James L. Farris, a pedestrian, age six years and four months. The accident happened near the intersection of Eighth Street, a four-lane east-west road, and Franklin Street, a two-lane north-south road in Traverse City. It was a clear and sunny day.
At about 6:30 p.m., defendant driver was travelling in the inner westbound lane of Eighth Street. A five-year-old daugther was a passenger in the car. There were no parked cars ahead of the defendant vehicle on either side of the street. A witness, Virginia Nash, was driving behind defendant’s vehicle.
About four or five houses east of the intersection, defendant driver observed that the plaintiif pedestrian, age six, and his brother, age eight, were on the south side of Eighth Street and were going to cross the street in a northerly direction. The point of impact was the inner westbound lane of Eighth Street.
Defendant driver saw both boys step off the curb and start to cross the street. After starting to cross, they turned around, went back and stood there talking. Defendant driver had the impression that the boys would not attempt to cross the street until her car passed. She slowed down and observed the boys as she drove. Suddenly, the plaintiif pedestrian took oif from the older brother and ran toward her vehicle. Defendant driver attempted to turn to the right trying to miss the pedestrian, but the boy hit her car. She estimated her speed at impaced to be about 5 miles per hour.
Witness Nash had a good view of the accident scene. Her testimony supported defendant’s version of what happened. She stated that at least one of the boys started to run into the street, turned around, and returned to the curb. After a moment of hesitation, he ran right back into the street, looking directly at defendant’s oncoming vehicle. Nash was amazed that the pedestrian ran out into the street since she assumed he would wait at the curb for traffic to pass.
The sole question before us is whether the proofs warrant the giving of the sudden emergency instruction pursuant to SJI2d 12.01 and 12.02.
The sudden emergency doctrine requires the circumstances of an accident to present an "unusual or unsuspected” situation. Vander Laan v Miedema, 385 Mich 226, 232; 188 NW2d 564 (1971). In the case at bar, the parties agree that the accident’s circumstances did not present an unusual situation as defined by the doctrine. The parties argue over whether the accident presented a situation that is unsuspected.
The Vander Laan Court described "unsuspected” as a potential peril within the everyday movement of traffic, and applied a two-prong test. First, it is essential that the potential peril had not been in clear view for any significant length of time. Second, it is essential that the potential peril was totally unexpected. Id.
A party who invokes the sudden emergency doctrine is entitled to a proper instruction if any evidence exists which would allow a jury to conclude that an emergency existed within the meaning of the doctrine. McKinney v Anderson, 373 Mich 414, 419-420; 129 NW2d 851 (1964); Ivy v Binger, 39 Mich App 59; 197 NW2d 133 (1972); Wright v Marzolf, 34 Mich App 612, 613-614; 192 NW2d 56 (1971). In reviewing a trial court’s instruction, trial testimony must be viewed in a light most favorable to a defendant. Id.
Reviewing the evidence in a light most favorable to defendants, we conclude that the peril was not in clear view, was totally unexpected, and therefore presented a situation not suspected by defendant driver. The proofs show that defendant driver watched the boys try to cross the street and return to the curb. She had the minor in her view, which was not obstructed. Although she did not know what the boys would do, she was under the impression that they would wait to cross the street after the traffic cleared. Nash and the minor’s brother testified that they were amazed or surprised by the darting action of the minor. On this record, some evidence was presented that the situation was not suspected, thereby warranting the sudden emergency instruction.
The proofs presented at trial warranted an instruction on the sudden emergency doctrine.
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Per Curiam.
This appeal involves a cross-claim brought by State Farm Mutual Automobile Insurance Company against Auto-Owners Insurance Company and Auto-Owners’ cross-claim against State Farm for the payment of no-fault insurance benefits to Michael Hackley (plaintiff) for injuries sustained in an automobile accident. The circuit court entered an order August 24, 1984, granting summary judgment to State Farm and requiring Auto-Owners to reimburse State Farm for benefits already paid to plaintiff and ordering Auto-Owners to continue the payment of benefits to plaintiff. Auto-Owners appeals as of right.
The facts underlying the present appeal are as follows. On November 13, 1982, plaintiff was driving a 1968 Volkswagen which was. registered and titled in his wife’s name. Neither plaintiff nor his wife were insured under any no-fault policy at the time. While traveling down Metropolitan Parkway, the vehicle’s engine stalled, and plaintiff attempted to use momentum to steer the vehicle onto the right-hand shoulder of the road. Unfortunately, the momentum was insufficient and thus the left rear portion of the vehicle intruded onto the right lane, partially blocking the road.
After several unsuccessful attempts to restart the engine, plaintiff exited from the vehicle from the driver’s door and proceeded to the rear where the engine was located. Plaintiff testified that his memory failed at this point and that he could not remember whether he reached the rear of the vehicle. However, an eyewitness testified that plaintiff was bent over inspecting the engine when he was struck by a Datsun mini-truck. Plaintiff sustained serious injuries as a result of the accident.
Before considering the dispute between the parties to this appeal, we begin by confirming plaintiff’s entitlement to first-party benefits under the no-fault act. Such benefits are available where the claimant proves "accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle”. MCL 500.3105; MSA 24.13105. Since the evidence established that plaintiff was in the process of inspect ing the vehicle’s engine to determine the cause of the stalling, the injury clearly arose out of the maintenance of the vehicle. See Wagner v Michigan Mutual Liability Ins Co, 135 Mich App 767; 356 NW2d 262 (1984). Further, the Volkswagen’s status as a parked vehicle does not stand as a bar to the recovery of benefits under the parked vehicle exclusion of section 3106(1) since an exception was provided where "[t]he vehicle was parked in such a way as to cause unreasonable risk of the bodily injury which occurred”. MCL 500.3106(l)(a); MSA 24.13106(l)(a). Plaintiffs Volkswagen was clearly parked in such a manner since the rear portion of the vehicle partially blocked the right-hand lane of the road.
The real issue presented in this appeal is which of the two insurance companies before us is responsible for the payment of no-fault benefits. As will be seen, this question turns on the interpretation to be given to the term "occupant” as contained in sections 3114 and 3115 of the act, which sections govern the priority of claims against insurers. Section 3114 provides, in pertinent part, as follows:
"Except as provided in subsections (1) to (3), a person suffering accidental bodily injury arising from a motor vehicle accident while an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:
"(a) The insurer of the owner or registrant of the vehicle occupied.
"(b) The insurer of the operator of the vehicle occupied.” MCL 500.3114(4); MSA 24.13114(4).
Section 3115 provides, inter alia, as follows:
"(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.” MCL 500.3115(1); MSA 24.13115(1).
Plaintiffs status regarding occupancy is important for the following reasons. If we were to conclude that plaintiff was not an occupant of the vehicle at the time of the accident, responsibility for the payment of PIP benefits would fall on State Farm pursuant to section 3115(l)(a), since that company insured the owner of the Datsun mini-truck which struck plaintiff. However, should we conclude that plaintiff was an occupant of the Volkswagen at the time of the accident, we find no identifiable insurer under section 3114(4) since neither the owner or registrant (plaintiffs wife) nor operator (plaintiff) of the Volkswagen had contracted for personal protection insurance coverage under the no-fault act. This being the case, section 3172 of the act becomes relevant. Under section 3172, where no insurance is found to be applicable to an injury, an insurer is assigned by the Assigned Claims Facility to provide the claimant with benefits. Section 3172 provides:
"A person entitled to claim because of accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle in this state may obtain personal protection insurance benefits through an assigned claims plan if no personal protection insurance is applicable to the injury, no personal protection insurance applicable to the injury can be indentified, or the only identifiable personal protection insurance applicable to the injury is, because of finanacial inability of 1 or more insurers to fulfill their obligations, inadequate to provide bene fits up to the maximum prescribed. In such case unpaid benefits due or coming due are subject to being collected under the assigned claims plan, and the insurer to which the claim is assigned, or the assigned claims facility if the claim is assigned to it, is entitled to reimbursement from the defaulting insurers to the extent of their financial responsibility.” MCL 500.3172; MSA 24.13172.
Auto-Owners became involved in this action when it was assigned plaintiffs claim after an application was submitted with the Assigned Claims Facility. This action was necessitated when State Farm, after paying more than $2,000 in PIP benefits, informed plaintiff that payments were being discontinued due to its belief that plaintiff was an occupant of the vehicle.
In an opinion dated June 26, 1984, the trial court resolved the dispute between the parties by concluding that plaintiff was in fact an occupant of the Volkswagen, relying upon the Michigan Supreme Court’s decision in Nickerson v Citizens Mutual Ins Co, 393 Mich 324; 224 NW2d 896 (1975), for a definition of the term "occupant”. Pursuant to sections 3114(4) and 3172, the lower court concluded that liability should fall upon Auto-Owners, and thus summary judgment under GCR 1963, 117.2(3) was granted in favor of State Farm.
As recognized by the trial court, the word "occupant” was defined very broadly in Nickerson, a pre-no-fault case, to include persons not actually inside nor in contact with the vehicle at the time of the accident. Rather, "immediate prior 'occupying’ of the insured vehicle” was sufficient to bring the claimant within the contemplation of the term. 393 Mich 331. Nickerson’s broad concept of occupancy has been cited approvingly and followed in a number of cases brought under the no-fault act. See Hawkins v Allstate Ins Co, 132 Mich App 603, 607; 347 NW2d 760 (1984); Ottenwess v Hawkeye Security Ins Co, 84 Mich App 292, 301-302; 269 NW2d 570 (1978), rev’d in part 408 Mich 164; 289 NW2d 708 (1980); Hathcox v Liberty Mutual Ins Co, 90 Mich App 511, 515-517; 282 NW2d 374 (1979); McPherson v Auto-Owners Ins Co, 90 Mich App 215; 282 NW2d 289 (1979). However, in a greater number of cases, panels of this Court have expressed a reluctance to apply Nickerson’s broad definition of the term. See Auto-Owners Ins Co v Turner, 135 Mich App 522; 354 NW2d 813 (1984); Royston v State Farm Mutual Automobile Ins Co, 130 Mich App 602; 344 NW2d 14 (1983); Griffin v Lumbermens Mutual Casualty Co, 128 Mich App 624; 341 NW2d 163 (1983); Winters v National Indemnity Co, 120 Mich App 156; 327 NW2d 423 (1982); Davis v Auto-Owners Ins Co, 116 Mich App 402; 323 NW2d 418 (1982); Kalin v Detroit Automobile Inter-Ins Exchange, 112 Mich App 497; 316 NW2d 467 (1982). A recent Michigan Supreme Court case makes clear that this reluctance was well-founded.
In Royal Globe Ins Cos v Frankenmuth Mutual Ins Co, 419 Mich 565; 357 NW2d 652 (1984), the Supreme Court was presented with a situation similar to that before us in that the insurance company responsible for the payment of no-fault benefits turned upon whether or not the claimant was an occupant of the vehicle in question. In defining the term "occupant”, the Court held that the Nickerson decision offered no application to cases arising under the no-fault act because Nickerson was a pre-no-fault case in which a private insurance contract, rather than the language of a statute, was construed. This fact was found to be significant since a rule of construction of private insurance policies is to determine the intent of the contracting parties and, failing that, to construe ambiguous terms favorably to the insured. The construction of a statute, on the other hand, requires that words be assigned their generally understood meanings consistent with the intent of the Legisature. 419 Mich 573. Another significant distinction was that, in Nickerson, the vehicle which caused the plaintiffs injuries was uninsured. Thus, if the Court had concluded that Nickerson was a nonoccupant, there would have been no recovery. 419 Mich 574. Under the no-fault act, and under the facts of the case before us, this possibility does not exist. Rather, as in Royal Globe, the only question is which of two insurance companies should be held responsible for coverage.
After giving recognition to the purpose of the no-fault act, i.e., to provide accident victims with assured, adequante and prompt reparation for their losses, the Royal Globe Court made the following statement, which we find highly significant to the resolution of the case before us:
"Although it was not so in Nickerson, under the no-fault act and the facts of this case, there is no question but that 'assured’ and 'adequate’ compensation will be forthcoming. The only question is, from whom? And, unlike the concern in Nickerson, what is more directly implicated here is the need to further the goal of the no-fault act which seeks to provide victims of motor vehicle accidents with prompt reparation for their losses. That purpose is better served in cases such as the one before us by the certainty and predictability that a literal construction of the word 'occupant’ will yield, when it is assigned its primary and generally understood meaning.” 419 Mich 575. (Emphasis supplied.)
Construing the term in a manner commanded by the Royal Globe Court, we find that plaintiff was not an occupant of his vehicle when he was struck by the oncoming truck. Plaintiff was standing behind the Volkswagen inspecting the engine when the accident occurred. Thus, he was not inside the vehicle nor was he in the process of entering or exiting from the same. Under these facts, only by utilizing the "immediate prior occupancy” test derived from Nickerson could we conclude that plaintiff was an occupant. However, since the validity of this test for use in construing the provisions of the no-fault act was rejected in Royal Globe, we conclude that plaintiff was not an occupant of the Volkswagen as that term is used in section 3114(4). Therefore, looking to the priority provisions of section 3115(1), we find State Farm, as insurer of the owner of the motor vehicle involved in the accident, responsible for the payment of no-fault benefits to plaintiff. The trial court’s order granting State Farm’s motion for summary judgment and denying Auto-Owners’ motion for same is reversed.
Reversed.
As in Royal Globe Ins Cos v Frankenmuth Mutual Ins Co, 419 Mich 565; 357 NW2d 652 (1984), the facts of the case before us make it unnecessary to decide whether a literal construction of the term "occupant” should include persons entering into or alighting from a vehicle. We mention the fact that plaintiff here was doing neither only to demonstrate our belief that plaintiff’s literal status was unquestionably that of a nonoccupant. | [
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B. A. Jasper, J.
This suit involves the validity of an ordinance enacted by defendant, the City of Wyoming, Michigan, concerning the use of temporary display signs. Plaintiff filed a complaint in Kent County Circuit Court seeking a declaratory judgment that the ordinance violates the First Amendment to the United States Constitution. After the submission of briefs and oral arguments, the trial judge granted summary judgment to defendant finding that the facts did not present a First Amendment issue. This appeal follows as of right. We find that a First Amendment issue was presented; our analysis of that issue leads us to reverse.
In July of 1982, the City of Wyoming, as part of its comprehensive sign regulation ordinance, enacted an ordinance which restricts the number of days temporary display signs are allowed to be displayed. A temporary display sign is defined under the ordinance as "[a]ny sign that is larger than 12 square feet that is not permanent and relating directly to the use of the parcel of land or building”. Wyoming Ordinance 1-82, § 60.1, (86)(c). A permanent sign is defined as "[a]ny sign permanently affixed to a building or ground and relating directly to the use of the parcel of land or building”. Id., § 60.1, (86)(b). Specifically, the ordinance limits display of a temporary sign to a total of 60 days per year. However, the ordinance limits any period of continuous display to 30 days. Any time a temporary sign is used, a permit must be obtained. The permits can lie obtained for a minimum period of 7 days to a maximum period of 30 days. Id., § 60.121(1). Permit fees are used to enforce various restrictions on the use of temporary signs, such as set-back from public right-of-ways, size, illumination, and wiring requirements.
Gordon Foster, former building inspector for the City of Wyoming and one of the individuals who helped write the challenged ordinance, testified that the mobility of temporary signs created numerous problems. These included the illegal placement of signs on public property, placement blocking the vision of traffic from business driveways and at right-of-ways, and inadequate anchoring. Other problems were hazardous temporary electrical wiring including use of extension cords exposed to the elements, and illumination by bulbs or lights imitating traffic control signals. Foster also testified that part of the perceived problem of temporary signs was aesthetics. He testified that there was evidence of 15 to 20 signs, on both occupied and unoccupied premises, with broken frames, parts hanging from them, or with only a few or no letters on their faces. These poorly kept signs were causing a particular problem in areas of blight where rehabilitation efforts were under way.
Plaintiff, a businessman in the city, testified that in the past he had used temporary signs, but had ceased using them because of the ordinance. The trial judge held that because the city did not prohibit plaintiff from advertising his business, a First Amendment issue was not presented to the court. The court held that the ordinance restricting display to 60 days a year was a valid exercise of the city’s police power under the home rule cities act.
We find that a First Amendment issue is presented by plaintiff’s complaint. Commercial speech, once excluded from the coverage of the First Amendment, now enjoys constitutional protection, Central Hudson Gas & Electric Corp v Public Service Comm of New York, 447 US 557; 100 S Ct 2343; 65 L Ed 2d 341 (1980); Virginia State Board of Pharmacy v Virginia Citizens Consumer Council, Inc, 425 US 748; 96 S Ct 1817; 48 L Ed 2d 346 (1976), although state and local governments have freer rein to regulate commercial speech than political or expressive speech. See Metromedia, Inc v San Diego, 453 US 490; 101 S Ct 2882; 69 L Ed 2d 800 (1981). In Metromedia, seven justices expressed approval of that portion of a San Diego ordinance which proscribed use of off-site billboard advertising. In doing so, five justices applied the following four-part test originally set forth in Central Hudson Gas Co, supra, pp 563-566:
"(1) The First Amendment protects commercial speech only if that speech concerns lawful activity and is not misleading. A restriction on otherwise protected commercial speech is valid only if it (2) seeks to implement a substantial governmental interest, (3) directly advances that interest, and (4) reaches no further than necessary to accomplish the given objective.” 453 US 507.
We are not called upon to determine if a total ban on this type of advertising would be permissible should the proper governmental interests be advanced. However, our application of the above test leads us to hold that the City of Wyoming’s ordinance, which permits use of temporary display signs for 60 days per year, violates the First Amendment. It is clear that the speech at issue is not unlawful or misleading. Further, traffic safety, aesthetics, and safety from electrical hazards are substantial governmental interests. See Metromedia, supra, pp 509-510. However, we hold that the ordinance is unconstitutional because it fails to sufficiently advance the governmental interests asserted or reaches further than necessary to accomplish those objectives.
Foster admitted that all of the hazards allegedly created by the temporary display signs are otherwise addressed by other provisions of the city sign code, traffic code and electrical code. Provisions of the sign code prohibit flashing lights, exposed bulbs or any illumination which would resemble traffic control signals, railroad signals, or other traffic signals. The sign code prohibits placing a sign where it is dangerous to traffic. The traffic code includes provisions requiring a minimum setback from the street. The city electrical code limits temporary wiring to a 60-day period. The city building code and life safety code each address anchoring of loose objects which might blow and hurt people. Thus, the traffic obstruction, poor anchoring and electrical hazards caused by these signs, which the city has chosen to permit, are easily remedied by restrictions short of a ban 10 months out of the year.
Additionally, limiting use of temporary signs to 60 days per year does not directly advance the government’s objective in abating those hazards. Electrical, traffic obstruction and poor anchoring hazards are as great during the 60 days of the year that use is permitted as in the remainder of the year. We find telling the following testimony of Foster:
"If there were not permits required and no inspections required, then we would not know whether there was a hazard at the site or not; we would not even know whether there was a sign at the site. As far as a limit of time is concerned, a hazard is a hazard the fírst hour that it is put in place, the ñrst minute it is put in place, and the relationship of that hazard to a speciñc length of time allowed really does not have any bearing on each other at all. The idea of requiring a permit and limiting a time is so that an inspection would be made at the time that the sign was erected and at the time it was supposed to be taken down, so that the City would be assured that no hazard was allowed, it was allowed to start or be continued.” (Emphasis supplied.)
The constitutional remedy for the above problems is either tighter restrictions, better enforcement, or both.
Foster made reference to a claim that temporary signs, even absent flashing lights, are distracting to motorists. However, limiting use of temporary signs to limited periods for grand openings, special sales, etc., would only exacerbate any distraction problem. See Dills v City of Marietta, Georgia, 674 F2d 1377 (CA 11, 1982); Metromedia, supra, pp 511-512 (periodic content change of off-site advertising may be more distracting than on-site advertising, justifying the city’s distinction between the two).
The aesthetic problem cited by Foster presents a close question. Limiting use of temporary signs to 60 days per year would certainly reduce the number of signs in disrepair at any one time. However, because the aesthetic problem cited is not a general objection to, say, a perceived garish appearance of the signs, we find that the ordinance reaches further than necessary to accomplish the city’s objectives. Foster testified that there was discussion about 15 to 20 such aesthetically unpleasing signs. Initially, we note that the bulk of the signs in disrepair were apparently on vacant premises where the signs had been abandoned for all intents and purposes. This could be remedied by limiting use of temporary signs to occupied premises. As to signs in disrepair on occupied premises, the aesthetic problems from hanging parts, broken glass, and broken frames could be remedied by restrictions in the sign ordinance or some other ordinance. The remaining problem of allegedly incomplete messages on some signs on occupied premises, even if aesthetically displeasing to council members, does not warrant the 60-day restriction imposed by the city. The relation between the 60-day restriction and incomplete lettering on signs otherwise properly maintained is too tenuous to be a reason to uphold the restrictions on those grounds.
Once the City of Wyoming decided to permit temporary advertising signs, the Constitution of the United States required it to regulate their use so as to directly advance its interests without being more extensive in regulation than necessary to serve those interests. This it failed to do. No costs, a public question being at issue.
Reversed.
A very strong argument could be made that such a total ban would be proper. See e.g., Metromedia, Inc v San Diego, supra, pp 507-508.
Foster testified that the mobility of temporary signs causes many problems in enforcement which permanent signs do not present. Foster testified that one reason for the 60-day restriction was to prevent temporary signs from becoming "permanent” signs. We believe that the requirement of a permit and a reasonable fee sufficient to effectively police the lawful use of temporary signs should be sufficient to bridge the gap in enforcement problems between temporary and permanent signs.
Gerald Mears, Director of Planning for the City of Wyoming, testified that he could not be certain of the reasons behind regulation of temporary signs since he was not involved in enactment of the ordinance at issue. He testified, however, that in general temporary signs are frowned upon as aesthetically displeasing because they are generally nearer public right-of-ways than permanent signs which are placed in a particular location on the property selected by agreement of the city and the owner. We do not review Wyoming’s ordinance in relation to these interests. We review legislation only on the basis of considerations actually contributing to its enactment. See Weinberger v Wiesenfeld, 420 US 636, 648; 95 S Ct 1225, 1233; 43 L Ed 2d 514, 524-525 (1975). Mears was not a participant in the enactment of the ordinance. Foster, who was a participant, stated that the problems of aesthetics emanated from disrepair of some temporary signs. | [
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Per Curiam.
Plaintiff appeals as of right from an order of directed verdict in favor of defendants entered February 2, 1984.
Plaintiff’s complaint was filed March 6, 1979. The complaint alleged that plaintiff’s decedent was killed, while riding his bicycle, due to the negligence of defendants in operating their respective automobiles. Plaintiffs appeal centers around defendants’ failure to be in attendance at trial. During presentation of preliminary motions, on January 18, 1984, plaintiff moved to bar all nonparty witnesses; this motion was granted since none of the parties had submitted witness lists in accord with the court’s pretrial order. Plaintiff also requested an order directing that defendants be present during jury selection. The court denied this request, noting that the motion could have been made earlier and that subpoenas could have been used to ensure their presence.
Plaintiffs attempts to serve defendants with subpoenas before trial, which commenced January 19, were unsuccessful. Plaintiffs counsel asked the court to reconsider the motion to compel attendance pursuant to GCR 1963, 506, because "our case * * * is going to come from the testimony of the defendants in this case”. The court denied this motion, noting that plaintiff had notice of the necessity of defendants’ presence at least as early as the pretrial conference held on January 11, 1984. The court stated that it would not "substitute itself for a subpoena”.
Plaintiff then moved for a continuance until January 24, because his process server had been informed that defendant Chynoweth would be out of town until January 23, 1984. The matter was put over to January 24. Plaintiffs repeated attempts at service were unsuccessful and again plaintiff made a motion to compel attendance. . The trial judge declined review of his .prior decision and refused to permit plaintiff to call defendants’ attorneys for questioning on whether there was a deliberate attempt to absent defendants. After plaintiff presented his proofs, the trial court directed a verdict for the defendants.
On appeal, plaintiff first claims that the trial court erred in refusing to compel defendants’ attendance. We disagree. There is no rule requiring a party to a suit to attend court during trial. If testimony of a party is desired, attendance may be secured by subpoena or a deposition may be taken. A party to a suit must secure the attendance of his witnesses, whether those witnesses are opposite parties or not. Bauer v Bauer, 177 Mich 169, 172; 142 NW 1074 (1913). See also 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 385. A trial court may order any party or witness to attend and testify orally in open court. MCR 2.506(A), formerly GCR 1963, 506.1. We find no abuse of discretion in the trial court’s failure to compel attendance. This case was on the docket for close to five years. Plaintiff was notified in November, 1983, that trial would commence on January 11, 1984, and trial was rescheduled for January 18, 1984. Plaintiff had substantial time to subpoena defendants. Plaintiffs request for an order to compel attendance did not come until the day of trial. Cf. Roselott v County of Muskegon, 123 Mich App 361; 333 NW2d 282 (1983). Our holding is buttressed by the fact that, after one continuance, plaintiffs subsequent unsuccessful attempt to subpoena defendants, and defendants’ failure to appear voluntarily on January 24, plaintiff failed to move for a second continuance.
We reject plaintiff’s assertion that we must remand to determine whether defendants avoided service on the instruction of their counsel. Cooper v Garden City Osteopathic Hospital, 98 Mich App 362; 296 NW2d 259 (1980), remanded on other grounds 410 Mich 863 (1980), lv den 411 Mich 962 (1981), cited by plaintiff is distinguishable. In Cooper, the plaintiff followed all proper pretrial procedures; problems arose the day of trial because defendants had apparently omitted a probative piece of evidence from properly discovered medical records.
We also reject plaintiff’s claim that the trial court’s denial of his motion denied him due process by effectively denying him the opportunity of a trial. The law did not bar the testimony of defendants; it was plaintiff’s failure to ensure their presence which denied plaintiff their testimony.
Finally, plaintiff’s claim that defendants were not entitled to a directed verdict is without merit. Plaintiff argues that defendant’s failure to testify raised a presumption of negligence because failure to produce evidence within a party’s control raises a presumption that if produced it would operate against him. That presumption does not operate, however, in the case of a witness, who is equally available or accessible to both parties by process of the court. See generally Barringer v Arnold, 358 Mich 594; 101 NW2d 365 (1960); Gibbons v Delta Contracting Co, 301 Mich 638; 4 NW2d 39 (1942).
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Per Curiam.
Plaintiff, Cynthia Dick, appeals from a circuit court order denying her petition to remove the parties’ minor children from Michigan to Colorado. We affirm.
Plaintiff, Cynthia Dick, and defendant, Arnold Dick, were married in 1971, and divorced in June, 1983. They have three children, Jason, born March 27, 1974, Greg, born May 14, 1976, and Christopher, born January 18, 1979. Pursuant to an agreement between the parties, the trial court awarded them joint legal custody of the children, and plaintiff was awarded physical custody. In recognition of both parents’ active and meaningful relationship with each child, the court granted defendant "regular, consistent, and expansive visitation”. In addition, as required by MCR 3.209(D)(1), the judgment provided that neither party could remove the children from the state without prior court approval.
On June 19, 1985, plaintiff filed her petition to remove the children from the Houghton-Hancock area to Colorado. At a hearing on the petition, she testified that she had secured a higher paying position as a nurse in Broomfield, Colorado, that there was more opportunity for advancement in the new job and that she could continue her education in the Denver area, unlike in the Houghton-Hancock area. Plaintiff felt that the more moderate climate would be beneficial to Christopher and Jason, both of whom suffer from asthma, but she introduced no competent medical evidence in support of her opinion. She also testified that the boys would attend a larger, more modern school with smaller class sizes and that they would be able to continue their religious instruction, violin lessons, and sports activities.
Defendant owns a Red Owl grocery store in Hancock. There is no question that he has a close relationship with the children. While defendant had formal visitation every Wednesday evening and on alternate weekends, his contact with the children went beyond that. He is a Cub Scout leader, takes them to hockey practices and games, coaches their Little League team, and participates in their religious instruction. He also attended their parent-teacher conferences with plaintiff. Defendant testified that a move to Colorado would be detrimental to the relationship he has with the boys.
At the time of the hearing before the trial court, plaintiff had already left her position with Portage View Hospital, leased a house in Broomfield, and was committed to selling her home in Houghton. At the time of oral argument on appeal before this Court, plaintiff had completed the move to Colorado and the children were living with their father.
MCR 3.209(D) provides that the order awarding custody of a child must state that the residence of the child may not be moved from the state without approval of the court which awarded custody. This Court will not disturb the trial court’s ruling on a petition to remove a minor child from the state unless the court made findings of fact against the great weight of the evidence, committed a palpable abuse of discretion, or made a clear legal error on a major issue. MCL 722.28; MSA 25.312(8). Scott v Scott, 124 Mich App 448, 450; 335 NW2d 68 (1983).
There is currently a split of authority among the panels of this Court as to the factors a trial court must consider when ruling on a motion for removal of a minor child from the state. Two panels, Watters v Watters, 112 Mich App 1; 314 NW2d 778 (1981), and Hutchins v Hutchins, 84 Mich App 236; 269 NW2d 539 (1978), have determined that the "best interest of the child” factors listed in the Child Custody Act, MCL 722.21 et seq.; MSA 25.312(1) et seq., should be applied. Three panels, Bielawski v Bielawski, 137 Mich App 587; 358 NW2d 383 (1984); Scott v Scott, 124 Mich App 448; 335 NW2d 68 (1983), and Henry v Henry, 119 Mich App 319; 326 NW2d 497 (1982), have adopted the four-factor test found in D’Onofrio v D’Onofrio, 144 NJ Super 200; 365 A2d 27 (1976), aff'd 144 NJ Super 352; 365 A2d 716 (1976). The trial court in the present case applied the D’Onofrio test, and we agree that that is the appropriate standard. We are not concerned with a true change of custody. A parent with joint legal custody is seeking to move to another state. In many other cases, the party requesting to change residence has both legal and physical custody. Furthermore, in factor number one of the D’Onofrio factors stated below, elements of the "best interest of the child” test are present. The trial court must of necessity measure the impact of the move on the children.
The four D’Onofrio factors which must be evaluated by a trial court when ruling on a motion to remove a minor from Michigan are:
"(1) 'It should consider the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children.
"(2) 'It must evaluate the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the noncustodial parent, and whether the custodian is likely to comply with substitute visitation orders when she is no longer subject to the jurisdiction of the courts of this State.
"(3) 'It must likewise take into account the integrity of the noncustodial parent’s motives in resisting the removal and consider the extent to which, if at all, the opposition is intended to secure a financial advantage in respect of continuing support obligations.
"(4) 'Finally, the court must be satisfied that there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parental relationship with the noncustodial parent if removal is allowed.’ ” Henry, supra, pp 323-324.
The trial court determined that the first and fourth factors did not weigh in favor of plaintiff. Plaintiff contends that the trial court abused its discretion, committed a clear legal error, and rendered a decision against the great weight of the evidence in determining that these factors were not met.
Plaintiff first points to numerous instances in which the trial court made findings of fact allegedly against the great weight of the evidence:
1. "The health of the parents is good and that of the children is relatively good with perhaps some discomfort suffered by the children whether it would be a childhood disease or just what — probably outgrown.”
Plaintiff asserts that this finding was erroneous in light of the testimony regarding the severe asthmatic condition of the youngest child. However, the court did mention the boys’ asthma, commenting that the children had received the best care possible for it. This finding is not against the great weight of the evidence. While plaintiff thought that the moderate Colorado climate might help the children’s asthma, she introduced no evidence to substantiate her belief. On the contrary, she admitted at the hearing that the children’s pediatrician did not know whether the move would improve the boys’ condition. Given the boys’ participation in a variety of physically demanding sports, the trial court’s conclusion that they were in relatively good health is not against the great weight of the evidence.
2. "The Court finds that the family resides of course in a relatively small community, Houghton or Hancock. There’s no distinguishing between them, where both disorder, crime, use of drugs is at a minimum.”
Plaintiff contends that no evidence was presented on the level of crime, disorder, and drug use in Houghton-Hancock and, therefore, that this finding is against the great weight of the evidence. As the finding merely compares Houghton and Hancock, it is not based on the question of whether the quality of life is better in Colorado or Michigan, and is irrelevant. At any rate, the court could properly take judicial notice of this fact. MRE 201.
3. "[T]here’s been no emotional trauma, no upset is present here, all of which would result, in the Court’s opinion, of moving to another environment.”
Plaintiff contends that this finding is contradicted by the evidence. Plaintiff testified that the children were looking forward to moving to Colorado, they had changed schools, homes, and friends previously without trauma, and would have relatives in Colorado. Defendant testified to the strong emotional ties he had with the children, and stated that moving them to Colorado would remove their "entire support system”. Although the boys moved from Hancock to Houghton, the two are essentially one combined city, and they did not lose their relationship with their father. Plaintiff’s relatives in Colorado are distant ones whom she has not seen often. The trial court observed both witnesses, and its finding that the boys would experience trauma in leaving behind the close relationship they had with their father is not against the great weight of the evidence.
4. "Also the fact that the minor children are boys, the Court is of the opinion that they are in need of a fatherly image and to separate them and to deprive them of this facility, this opportunity, the Court is reluctant to do.”
While there was no evidence introduced showing that because the children were male they were more in need of a fatherly image than a female child would be, there was ample evidence showing defendant’s active participation in the boys’ activities. We conclude that the trial court’s conclusion that the children were in need of a fatherly image and would be deprived of it by the move is not against the great weight of the evidence.
5. "The Court finds that the perspective [sic] advantages of the move will not improve the general quality of life for both the custodial parent and the children.”
In this statement the trial court directly evaluated factor (1) of the D’Onofrio standard, and found that it had not been met. It appears that plaintiffs quality of life would improve in Colorado. She moved to northern Michigan believing it to be a temporary move, and she does not appear to enjoy the area. She would be earning a higher salary in Colorado. Her hours would be less demanding, and she would have increased educational opportunities, as well as closer contact with relatives. However, the first D’Onofrio factor requires the trial court to consider whether the quality of life will increase for both the custodial parent and children. The test focuses on the best interests of the new family unit. Henry, supra, p 324. The increased quality of the children’s lives is weighed in the present case by balancing a larger school, religious education classes, more church activities, violin lessons, and a longer skiing season against the day-to-day presence and relation ship with their father. In considering this balance, the trial court determined that the extraordinary relationship the children have with their father outweighed the added enticements of Colorado. That finding is not against the great weight of the evidence.
6. "The Court is not satisfied that there will be a realistic opportunity for visitation in lieu — or for — opportunity — yes, for visitation in lieu of the visitation pattern now in existence for preserving and fostering a parental relationship with the noncustodial parent if removal is allowed. His visitation, contrary to the terms of the divorce judgment, would no longer be regular, consistent and expansive, but would be limited to four weeks a year. The Court is not of the opinion that writing letters, telephone calls may be substitute [sic] for the actual physical visitation between parent and children.” (The court shortly thereafter noted that the visitation proposed was two months per year.)
This finding directly addressed the fourth factor of the D’Onofrio test, and the trial court determined that it had not been met. The evidence indicated that the children visited with defendant every Wednesday evening and every other weekend, as well as during various activities such as Little League, hockey, and Cub Scouts. Under the proposed plan of visitation, the boys would live with defendant for two months per year in two four-week intervals.
The fourth D’Onofrio factor requires that the court be satisfied that the move will allow a realistic alternative opportunity for visitation which will preserve and foster the noncustodial parental relationship. The trial court determined that visitation two months per year and letters and phone calls were not a realistic alternative to the weekly pattern of visitation that had been established. Given the close relationship of the defendant and the children, we cannot conclude that the trial court’s finding is against the great weight of the evidence.
The trial court was faced with two alternatives:
1. Allow the move to Colorado and give the father visitation for two or more months per year plus frequent mail and telephone communication.
2. Refuse to allow the move and give the mother two or more months visitation per year plus frequent mail and telephone communication.
Given the equal devotion of the parents to the children and the wholesome life available to the children in Houghton-Hancock, the choice made by the trial court was fair and reasonable.
Plaintiffs final argument is that the trial court abused its discretion and committed a clear legal error by refusing to consider plaintiff’s sale of her home in Houghton and loss of employment when ruling on the petition. We disagree. The plaintiffs actions in quitting her job and selling her house were taken unilaterally and were not relevant to the trial court’s determination. Plaintiff could have waited until the trial court made its determination. Her actions, although apparently not taken in bad faith, may not be used to force the court to make findings of inadequate quality of life in Houghton, so as to enhance the desirability of a move to Colorado.
The trial court was faced with an especially difficult task in this case. Both parties are dedicated and competent parents who have the well-being of their children at heart. We conclude that the trial court, after hearing the parties’ testimony and applying the factors set forth in D’Onofrio, did not abuse its discretion in denying plaintiffs petition.
Affirmed. | [
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Cynar, J.
In this products liability action, plaintiff appeals by leave granted from an interlocutory order denying her motion to strike an affirmative defense pled by defendants and a motion in limine to preclude defendants from introducing evidence of plaintiff’s failure to use a seat belt. Plaintiff claims that she was seriously injured on April 18, 1979, when she fell out of a rear passenger door of a 1979 Mercedes-Benz automobile following a collision with a truck. Defendants are the vendor of the automobile, the American outlet for the German manufacturer of the automobile, and the manufacturers of the floor mats used in the automobile. Plaintiff claimed that a defective floor mat caused the accident by interfering with the driver’s ability to apply the brakes and that her injuries were caused by a defective door and door locking mechanism on the automobile. Defendants pled that plaintiffs injuries were proximately caused by her own negligence, including her failure to wear a seat belt.
In Romankewiz v Black, 16 Mich App 119, 125; 167 NW2d 606 (1969), the Court rejected claims that a plaintiffs failure to use a seat belt could amount to contributory negligence or a failure to mitigate injuries. The Court adopted the reasoning of Miller v Miller, 273 NC 228, 233-234; 160 SE2d 65 (1968):
"So far as our research discloses, no court has yet held an occupant’s failure to buckle his seat belt to be negligence per se. * * * If the failure to buckle a seat belt is not negligence per se, it could be contributory negligence only when a plaintiffs omission to use the belt amounted to a failure to exercise the ordinary care which a reasonably prudent person would have used under the circumstances preceding that particular accident. Since the fact and circumstances preceding any accident will vary, so must conduct constituting due care. Under what circumstances would a plaintiffs failure to buckle his seat belt constitute negligence? If a motorist begins his journey without buckling his belt, ordinarily he will not have time to fasten it when the danger of accident becomes apparent; so the duty to 'buckle up’ — if any — must have existed prior to the injury. Furthermore, it must be remembered that until one has, or should have, notice of another’s negligence, he is not required to anticipate it. On the contrary, he is entitled to assume that others will use due care for his safety and their own.” (Citations omitted; emphasis in original.)
Romankewiz was followed in Selmo v Baratono, 28 Mich App 217; 184 NW2d 367 (1970); Placek v Sterling Heights, 52 Mich App 619; 217 NW2d 900 (1974), rev’d 405 Mich 638; 275 NW2d 511 (1979); De Graaf v General Motors Corp, 135 Mich App 141; 352 NW2d 719 (1984), lv den 422 Mich 852 (1985), and Schmitzer v Misener-Bennett Ford, Inc, 135 Mich App 350; 354 NW2d 336 (1984), lv den 422 Mich 852 (1985).
We first considered the admissibility of a plaintiff’s nonuse of a seat belt as evidence of comparative negligence in Schmitzer. The Court held that under Michigan’s system of comparative negligence, evidence of a plaintiff’s failure to use a seat belt is not admissible as evidence of plaintiff’s contributory negligence or of plaintiffs failure to mitigate damages. 135 Mich App 359-360. Our holding in Schmitzer is controlling in this case.
As the Schmitzer Court stated, under the doctrine of comparative negligence the trier of fact must first find that the plaintiff was negligent. A finding of negligence can only be sustained if the plaintiff breached some statutory or common law duty. Proof that the plaintiff engaged in an injury-producing act, without more, is not a sufficient basis for establishing that plaintiff was negligent.
At the time the accident complained of occurred, the Michigan Legislature had not enacted the mandatory seat belt use law, MCL 257.710e; MSA 9.24NX5). Hence, plaintiff’s failure to wear a seat belt did not constitute negligence per se.
The common law does not provide a basis for concluding that plaintiffs failure to use a seat belt was a breach of her duty to use ordinary care. Schmitzer, supra, p 359. Plaintiffs failure to wear a seat belt was therefore not admissible as evidence of her comparative negligence.
The trial court’s interlocutory order denying plaintiffs motion is reversed.
V. J. Brennan, P.J., concurred.
We note that the mandatory seat belt use law does not apply to rear seat passengers of motor vehicles, like plaintiff herein. See MCL 257.710e(3); MSA 9.2410(5). | [
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Per Curiam.
Defendant was convicted by a Recorder’s Court of Detroit jury of breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305. He was acquitted on two counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2). On December 15, 1982, defendant was sentenced by Judge John H. Gillis, Jr., to a term of from 10 to 15 years in prison. On appeal to this Court, a motion to remand was granted to allow the defendant to move for resentencing and for the trial judge to articulate sentencing reasons on the record pursuant to People v Coles, 417 Mich 523; 339 NW2d 440 (1983). This Court retained jurisdiction, and we now review defendant’s sentence and the sentencing judge’s denial of defendant’s motion for resentencing.
Prior to trial, Judge Gillis offered defendant an eight-year sentence on both the criminal sexual conduct counts and the breaking and entering count. The plea offer was rejected by defendant on advice of defense counsel, who was convinced that defendant was not guilty of the criminal sexual conduct charges. At trial, defendant acknowledged his involvement in the breaking and entering of the home, but denied his complicity in the criminal sexual conduct offenses. Defendant testified that he and an acquaintance named Bud were drinking one night and decided to break into a home two doors away from where defendant lived. Defendant testified that Bud entered the house, but when he handed a television set to defendant, who was outside on a ladder, defendant got scared, refused to take the set and went home. Defendant contended that it must have been Bud who raped the 11-year-old girl who lived in the house and who was a victim of a criminal sexual assault that night.
A television set with defendant’s fingerprints on it belonging to complainant’s family was recovered in the vicinity of the abandoned home next door where the girl was assaulted after being dragged from her bedroom. The complainant was unable to identify her assailant.
The jury found defendant not guilty of two criminal sexual conduct counts, but guilty of breaking and entering. At sentencing, the prosecutor recommended lengthy incarceration but the presentence report recommended two years probation. Defendant was already on probation for an earlier breaking and entering. Prior to imposing sentence, the judge observed "I think the jury was correct. I don’t think he committed the sexual assault or I don’t believe the proofs were there.” The court then sentenced defendant to from 10 to 15 years in prison, commenting:
"You were convicted by a jury of breaking and entering an occupied dwelling in the nighttime. This is one of the most serious crimes there is, to invade someone’s privacy and go in a home during the night when people are sleeping. And it was clearly shown during the trial with the fingerprints produced and the ladder, etc. This is an extremely serious crime.”
Despite defense counsel’s strenuous objections, Judge Gillis refused to reopen the record or to modify the sentence imposed, without explanation.
Following this Court’s remand for the trial court to review its sentence and articulate on the record its reasons for the sentence, Judge Gillis denied the motion for resentencing, and stated his reasons for imposing the initial sentence:
"One is to protect society, and the other is to deter others from committing the similar offense.
"The facts in this case, this was one of the most serious B & Es that I’ve seen while on the bench. The complainant’s home was entered by the defendant while the family was asleep. There was testimony of a rape which the complainant, the little girl that was raped, could not identify her assailant. The defendant’s fingerprints were found in numerous places around the home.
"The jury was conviced that the defendant was the person that broke and entered the home. Of couse, the court only considered the fact of the breaking and entering and not the rape. But defendants who enter homes in the evening while people, families are asleep, this is the most serious type of breaking and entering that can occur, in the complainant’s own home and at nighttime. That’s the reason I imposed that sentence, and that’s it. So the motion for resentencing is denied.”
When defense counsel requested that the court comment on the pretrial offer of concurrent sentences of from 8 to 15 years on all three counts, the court explained: "At that time I hadn’t heard the shocking facts of the trial.”
On appeal, defendant asserts that, based on People v Coles, supra, his case should be remanded to the trial court for resentencing in accordance with the sentencing guidelines. Defendant argues that the court abused its discretion in imposing a more severe sentence for a single conviction for breaking and entering than was offered before trial for the breaking and entering plus the two counts of criminal sexual conduct, as this suggests that defendant received the higher sentence as punishment for going to trial or for not admitting his guilt to the criminal sexual conduct charges on which he was acquitted. Defendant also argues that the sentence was statistically excessive, and that the presentence report recommended two years probation.
Defendant’s primary argument is the one that concerns us. It is not per se unconstitutional for a defendant to receive a higher sentence on a trial conviction than was promised him if he would plead guilty. While confronting a defendant with the risk of more serious punishment may discourage defendant’s assertion of his constitutional right to trial by jury, the imposition of these difficult choices is an inevitable and permissible attribute of a system that tolerates plea negotiation. Bordenkircher v Hayes, 434 US 357; 98 S Ct 663; 54 L Ed 2d 604 (1978), reh den 435 US 918; 98 S Ct 1477; 55 L Ed 2d 511 (1978). Nevertheless, courts have vacated sentences which were higher than what was promised if defendant pled guilty where the record supported any inference that the higher sentence was based on defendant’s decision to go to trial rather than to plead guilty. See Anno: Propriety of sentencing justice’s consideration of defendant’s failure or refusal to accept plea bargain, 100 ALR3d 834. The record before us, however, does not offer any indication that the sentencing judge imposed the stiffer sentence after trial as a penalty for the exercise of defendant’s right to a jury trial. People v Morris, 99 Mich App 98, 101-102; 297 NW2d 623 (1980). Rather, since the judge offered a different reason for the increased sentence, we will not assume that the sentence imposed was a punishment for defendant’s exerise of his constitutional right to trial. Cf., People v Courts, 401 Mich 57; 257 NW2d 101 (1977); People v Snow, 386 Mich 586; 194 NW2d 314 (1972).
The judge’s explanation for the increased sentence was that he did not know "the shocking facts” at the time he offered the sentence bargain. We are unable to discern any facts brought out at trial that were unknown to the judge when he offered his sentence bargain and that were so shocking as to justify the increased sentence. The facts at trial supporting defendant’s conviction were that he placed a ladder against his neighbors’ house at night while they were sleeping and opened a rear window. What made the incident shocking was the abduction and rape of the 11-year-old occupant of the house — a crime of which defendant was acquitted.
In articulating his reasons for the sentence on remand, the judge stated that defendant’s fingerprints were found in numerous places around the home. In fact, the only testimony as to defendant’s fingerprints concerned the print found on the windowsill and the print found on the television set. The judge also mentioned the fact that the girl was raped and could not identify her assailant. Although the judge later stated that he was not considering the rape in imposing sentence, the record comes dangerously close to suggesting that the judge sentenced defendant for a crime — rape— he did not commit.
Courts reserve the authority to modify a sentence where inappropriate considerations appear to have improperly affected the sentence. People v Lee, 391 Mich 618, 638; 218 NW2d 655 (1974). Both this Court and the Supreme Court have vacated a defendant’s sentence and remanded for resentencing where the trial court made an independent finding of defendant’s guilt on another charge. People v Grimmett, 388 Mich 590, 608; 202 NW2d 278 (1972); People v Carter, 128 Mich App 541, 550-551; 341 NW2d 128 (1983). In Carter, as in the instant case, defendant was acquitted of the criminal sexual conduct charges, but the court in imposing sentence spoke as if defendant had assisted in committing the criminal sexual conduct.
Therefore, we vacate defendant’s sentence and remand the case for resentencing by a different judge.
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Per Curiam.
On February 14, 1983, defendant pled nolo contendere to attempted fourth-degree criminal sexual conduct, MCL 750.92; MSA 28.287, MCL 750.520e; MSA 28.788(5). He was sentenced to one year in the county jail, and he appeals as of right. We reverse.
According to complainant’s preliminary examination testimony, in the early morning of May 11, 1981, defendant knocked on her door and gave a false name. He eventually forced his way into the home by breaking the door panel. Defendant dis played a handgun and forced complainant to have vaginal and oral sex with him. Complainant identified defendant as her assailant and stated that she had previously been acquainted with him.
The alleged assault occurred on May 11, 1981. A warrant was issued and defendant was arrested on December 4, 1981. Defendant moved on October 26, 1982, to dismiss the complaint on the ground that prejudice resulted from the delay between the date of the offense and the date of arrest. He alleged, in part, that the delay resulted in the loss of potentially exculpatory blood typing evidence. The trial court denied the motion to dismiss, finding that the prosecution had carried its burden of persuading the court that the reason for the delay was sufficient to justify whatever prejudice resulted. See People v Bisard, 114 Mich App 784; 319 NW2d 670 (1982).
The Court in Bisard, supra, p.791, stated the appropriate standard for determining whether the delay in proceedings entitles a defendant to relief:
"Accordingly, we hold that, once a defendant has shown some prejudice, the prosectuion bears the burden of persuading the court that the reason for the delay is sufficient to justify whatever prejudice resulted. This approach places the burden of coming forward with evidence of prejudice on the defendant, who is most likely to have facts regarding prejudice at his disposal. The burden of persuasion rests with the state, which is most likely to have access to facts concerning the reasons for delay and which bears the responsibility for detemining when an investigation should end.”
Complainant underwent a physical examination shortly after the alleged rape, and a sexual assault evidence kit was assembled and forwarded to the State Police Crime Laboratory for testing. Among the items of evidence received by the crime lab on May 13, 1981, were vaginal and oral swabs, vaginal and oral smears and the underpants which complainant was wearing at the time of the assault. According to the lab report dated June 10, 1981, chemical testing of the vaginal swab indicated the presence of seminal stains. In addition, microscopic examination of the vaginal smear showed the presence of many spermatozoa. Finally, chemical tests and microscopic examinations showed the presence of seminal stains and spermatozoa in the crotch area of the underpants. The crime lab declined to do any secretion typing studies until known blood and saliva samples from the complainant and the defendant were submitted for comparative analyses. The lab report dated June 10, 1981, stated:
"A known blood and saliva sample from each of the parties believed to be involved in this case must be obtained before any secretion typing studies will be conducted. The length of time that elapses before these samples are obtained is crucial to the success of such typing. The evidence will be retained for 30 days awaiting these samples. After 30 days the evidence will be returned to your department without secretion typing studies.”
The evidence was in fact returned without secretion typing studies.
At the January 7, 1983, hearing on the motion to dismiss, Glen Moore, the crime lab scientist who handled this case, testified that, as a matter of department policy, secretion typing studies are not performed on specimens taken from a sexual assault victim unless known blood and saliva samples from the complainant and the suspect are submitted for comparative analyses. The witness further testified that, when known blood and saliva samples are submitted, chemical testing of seminal fluid or other body fluids obtained from the victim’s body can reveal the blood type of the person who deposited the particular body fluid involved. The blood type can then be compared to the known samples so that a. suspect may be either included or excluded from the class of possible sources of the particular body fluid involved. Mr. Moore stated that successful secretion typing tests may be performed up to one year after the specimens are collected, although such tests are sometimes performed beyond that period. The witness further stated that, given the required known blood and saliva samples, the evidence in question could still be tested for secretion typing.
In its opinion denying the motion to dismiss, the trial court relied on this testimony in finding that defendant had not suffered substantial prejudice. The court stated:
"After examination of Glen Moore, a Laboratory Scientist qualified as an expert for the purpose of this hearing, it was discovered that blood, saliva and seminal secretion studies could in fact have been performed earlier and could still be conducted. The Court finds this information to be important for the following reasons: (1) defendant may now request such tests be performed and thereby potentially receive exculpatory results and, (2) no further prejudice can be alledged by defendant should he not request that such tests be performed.”
Following the hearing, the sexual assault evidence kit was resubmitted to the laboratory along with the required known blood and saliva samples. Unfortunately, the lab report dated February 9, 1983, indicates that:
"Secretion typing studies on the vaginal swabs, victim’s underpants, and oral swabs were inconclusive due to the length of time which has passed resulting in the loss of activity of the blood grouping substances.”
Therefore, despite the trial court’s finding, the subsequent scientific testing indicates that the delay caused by the prosecution resulted in the loss of secretion typing evidence which potentially could have exculpated defendant. Accordingly, we find that defendant has clearly carried his burden under Bisard by coming forward with substantial evidence of prejudice resulting from the delay in the proceedings caused by the prosecution.
According to the hearing testimony, the delay in these proceedings and the failure timely to submit the known blood and saliva samples to the crime lab was essentially the result of the heavy caseload of the prosecution’s staff. This explanation, however, does not excuse the delay and neglect in this case.
The secretion typing tests could not prove that defendant was guilty of the act, but offered the possibility of excluding him from the class of suspects. The prosecutorial delay and neglect made it impossible to obtain the potentially exculpatory evidence, and therefore the prejudice to defendant is clear. We find that the prosecution did not carry its burden of showing a reasonable explanation for the delay sufficient to justify the substantial prejudice. Bisard, supra.
We sympathize with prosecutors who are laboring under heavy caseloads; however, cases of such a serious nature as the present one demand immediate attention. Failure to give such attention in this matter resulted in inexcusable prejudice, such that defendant was entitled to dimissal.
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Per Curiam.
Defendant was charged with armed robbery, MCL 750.529; MSA 28.797, and felony-firearm, MCL 750.227b; MSA 28.424(2). He subsequently entered a plea of guilty to the armed robbery charge in return for dismissal of the felony-firearm count. After establishing a factual basis for the plea, the trial court took the plea under advisement for consideration of defendant’s request that he be granted trainee status under the Holmes Youthful Trainee Act, MCL 762.11 et seq.; MSA 28.853(11) et seq. (HYTA). HYTA status was denied, and defendant was sentenced to from 2 to 10 years’ imprisonment with credit for 110 days served. He appeals as of right, claiming that the trial court abused its discretion in denying HYTA status.
This case arose from defendant’s securing his father’s .357 magnum revolver and using it to rob a female attendant at a Total gas station in Monroe County of $51. Defendant had no prior convictions or involvement with the criminal justice system. At the time of the taking of the plea, the trial judge remarked that in his 28 years on the bench this was the first time that anyone had ever requested that he grant HYTA status for an armed robbery offense. He indicated, however, that he "would be glad to consider these circumstances in the proper course” and that since this was a matter of discretion he would not accept the plea until he had made a determination on the HYTA request. After making its investigation, the probation department recommended against HYTA status. The trial judge indicated that after considering all the circumstances he agreed with the probation department and HYTA status was denied.
Defendant asserts on appeal that the trial court should be deemed to have relied "nearly exclusively” on the seriousness of the offense and not to have properly considered possible collateral adverse consequences to defendant of being burdened with a criminal record, as well as adverse civil consequences.
We agree with defendant that HYTA is a remedial statute and should be construed liberally. People v Brandy, 35 Mich App 53, 57; 192 NW2d 115 (1971). Contrary to the position taken by defendant, however, we find no abuse of discretion in this case. It is true that the trial court considered the seriousness of the offense in determining whether to grant HYTA status. It did so quite properly in exercising its discretion. People v Fitchett, 96 Mich App 251, 253; 292 NW2d 191 (1980). The court also considered defendant’s age and other factors, as the following portion of the record demonstrates.
"The Court: Very well. Now I have considered what your lawyer has advanced and what was said before in the presentence report, the letters that have been received also. The offense, as Mr. Bronson says, is a highly severe one. The maximum sentence is life imprisonment, as you know, because a life has been endangered here, and very much endangered. This was a pretty powerful gun you had, a 357 magnum revolver of your father’s. You robbed the attendant at the Total gas station, a Miss Powell, at gunpoint on July 16th of this year, escaping with the money, and were apprehended shortly thereafter.
"According to Mr. Blackwell’s report, you first told the police that you used a BB gun but later admitted that it was the revolver that I referred to earlier, didn’t you?
Mr. Teske: Yes, Your Honor.
"The Court: You’re still seventeen?
"Mr. Teske: Yes, your Honor.
"The Court: This is your first felony offense. Your’re a single young man. You completed the eleventh grade and now have taken your GED, as I understand?
"Mr. Teske: Yes, your Honor.
"The Court: You have indicated some interest in either vocational training or college too, to Mr. Blackwell.
"Mr. Teske: Yes.
"The Court: In his investigation, which was extensive, leads him to believe, as he reports to me, that this was an out-of-character thing for you. Of course if it were in-character, there would be no question you’d have the maximum sentence which would be life imprisonment. He does indicate though there had been problems in the past of a behavioral nature. Nothing severe, of course. He points out the need of counselling in the area of behavior modification, as well as vocational or the other training you’ve spoken of.
"Now, the Court has considered, as it said, the letters from respected citizens who know both your family and yourself. Those include the Reverend Timothy Buzan, I believe, and Reverend Gary Norton of your church in Trenton, and a treacher, Mr. Robert Price, and others, all I might say, well considered and thoughful letters. They ask the Court’s consideration of your lack of any earlier offenses and of your youth and good conduct. Certainly the Court has weighed these positive factors heavily on the scales of justice.
"Now, that same justice and the good safety of the community, plus the deterrence of others from such life threatening crimes, also requires the Court to consider the extreme seriousness of the crime referred to al ready. That is reflected in the maximum sentence provided for by the law.
"You have had a good home, I know, and have had parental guidance. In your written statément, you refer to confused thoughts, — to having such — to your need of professional counselling, I think you put it or indicated, and that you yourself don’t know why you did what you did.
"The Court must then agree with the Probation Department’s recommendation against Youthful Trainee Status for the reasons indicated. It is denied, accordingly, and your plea of guilty is accepted.”
We do not reverse where matters are committed to the sound discretion of the trial court unless there has been an abuse of that discretion. Abuse of discretion consists of more than an appellate panel merely "second guessing” the decisions of a trial judge. See Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959).
Affirmed. | [
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M. R. Knoblock, J.
Defendant was charged with carrying a pistol in a motor vehicle, MCL 750.227; MSA 28.424. After a hearing, the trial court suppressed the evidence and dismissed the case. The people appeal.
Defendant was operating his motor vehicle on a public street in the City of Detroit at approximately 11:30 in the evening when police officers observed him changing lanes without signaling, causing another driver to brake to avoid a collision. The police followed and pulled the vehicle over after observing defendant change lanes two additional times without signaling. One of the officers approached the vehicle and requested defendant’s driver’s license and vehicle registration. While doing this, the officer detected a slight odor of alcohol and noticed that the defendant’s eyes appeared to be glazed. The officer decided to perform certain field sobriety tests on defendant and requested that he exit from the vehicle for this purpose. Defendant complied._
Prior to performing the tests, the officer conducted a pat-down search of defendant and found a loaded .22-caliber pistol in his pants pocket. Defendant passed the field sobriety tests to the officer’s satisfaction, but was arrested and charged with illegal possession of the pistol.
At the hearing on the motion to suppress, the arresting officer testified that he saw nothing in defendant’s actions or appearance that made him suspect that defendant was armed but that he conducted the pat-down search as a general precautionary measure. The trial court ruled that the pat-down search was an unreasonable search and seizure in violation of the Fourth Amendment. We agree.
Since at the time of the pat-down search, the defendant was not under arrest, nor was there probable cause for an arrest, our decision in this case is governed by the "stop and frisk” rules enunciated in Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), and its progeny. Terry requires the application of a two-pronged test: whether under the factual circumstances that existed at the time of the pat-down search the police officer 1) reasonably concluded that criminal activity may have been afoot, and 2) reasonably concluded that the person with whom he was dealing may have been armed and dangerous. In determining the reasonableness of these conclusions due consideration must be given, not to the officer’s unparticularized suspicion or hunch, but to specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Terry, supra, p 27. The police officer must be "able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous”. Sibron v New York, 392 US 40, 64; 88 S Ct 1889; 20 L Ed 2d 917 (1968). No such facts appear in the record. The officer testified that he made no observation which aroused his supicion that the defendant was armed, but merely conducted the pat-down search as a routine precautionary measure for his personal safety.
We find meritless the people’s claim that their position is supported by Pennsylvania v Mimms, 434 US 106; 98 S Ct 330; 54 L Ed 2d 331 (1977), which on the contrary serves to underline the flaw in their case, In Mimms, after stopping a vehicle which was observed to have expired license plates, the police officer ordered the driver out of the vehicle. When the driver alighted, a large bulge in his coat was observed, which caused the police officer to suspect he was armed. Upon conducting a pat-down search, it was discovered that the driver was unlawfully in possession of a firearm. The Court held that once the police officer had legitimately stopped the vehicle he had the right, without more, to order the driver to exit from the vehicle and that the bulge in the jacket permitted the officer to reasonably suspect that he was armed and dangerous. The Court observed that under those circumstances, any person of reasonable caution would likely have conducted a pat-down search. It is the absence of any factual basis from which the police officer could reasonably suspect that the defendant was armed which distinguishes this case from Mimms and compels us to conclude that this search and seizure is unreasonable.
In so holding, we are mindful of the public interest in not requiring police officers to take unnecessary risks in the performance of their duties. Terry v Ohio, supra, pp 26-27. However, assessment of the reasonableness of police conduct depends on a balance between this public interest and the individual’s right to personal security free from arbitrary interference by law officers. Pennsylvania v Mimms, supra. Having applied this balancing test, we are convinced that police should be required to employ such other less intrusive measures as may be available for their own safety.
Affirmed.
Gribbs, J., concurred. | [
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W. J. Caprathe, J.
Plaintiff counter-defendant Elbode, individually, appeals as of right from the trial court’s grant of summary judgment for defendant counter-plaintiff Allstate on its counterclaim. The judgment ordered Elbode to reimburse Allstate for no-fault survivor benefits paid as a result of Elbode’s wife’s death.
We confront an issue of first impression in Michigan. Does MCL 500.3177; MSA 24.13177 require the owner of an uninsured motor vehicle not involved in the accident to reimburse the insurer for no-fault benefits paid by it as a result of the owner’s spouse’s death where the spouse was the equivalent of a pedestrian when injured? We find that it does not.
Elbode’s wife died as a result of being struck by a vehicle, driven by defendant Allstate’s insured, which crashed through the wall of a restaurant where Elbode’s wife was a patron. Elbode owned two vehicles, neither or which was involved in the accident. Since neither of these vehicles was insured, plaintiffs brought this suit against Allstate for no-fault survivor benefits. Allstate counterclaimed against Elbode individually, claiming that § 3177 of the Michigan no-fault act, MCL 500.3177; MSA 24.13177, required Elbode, as the owner of uninsured motor vehicles, to reimburse it for no-fault survivor benefits paid as a result of his spouse’s death. After both Elbode and Allstate brought motions for summary judgment, the trial court denied Elbode’s motion and granted judgment for Allstate against Elbode under §3177 of the act for survivor benefits paid by Allstate.
As the facts of the instant case were undisputed, the trial court’s grant of summary judgment in favor of Allstate was error only if the court’s interpretation of the statute here involved was incorrect. Johnston v Hartford Ins Co, 131 Mich App 349, 353; 346 NW2d 549 (1984), lv den 419 Mich 893 (1984). We find that it was.
At the time of this action, § 3177 provided:
"Sec. 3177. An insurer obligated to pay personal protection insurance benefits for accidental bodily injury to a person occupying an uninsured motor vehicle or to the spouse or relative resident in the household of the owner or registrant of an uninsured motor vehicle may recover such benefits paid and appropriate loss adjustment costs incurred from the owner or registrant of the uninsured motor vehicle or from his estate. Failure of such a person to make payment within 30 days is a ground for suspension or revocation of his motor vehicle registration and operator’s license. An uninsured motor vehicle for the purpose of this section is a motor vehicle with respect to which security as required by sections 3101 and 3102 is not in effect at the time of the accident.” (Emphasis added.)
Elbode, in effect, urges this Court to find that § 3177 requires the owner of an uninsured motor vehicle to reimburse an insurer for benefits paid only when the uninsured motor vehicle is occupied or involved in the accident. Defendant argues that § 3177 entitles it to recover benefits paid without regard to whether the uninsured vehicle was involved in the accident.
We note that the statute does not expressly provide that the uninsured motor vehicle be involved in the accident. However, we believe that the Legislature intended that the owner of an uninsured motor vehicle be required to reimburse an insurer which pays benefits to the owner’s spouse (or relative resident in the household) only when the owner’s uninsured vehicle was involved in the accident.
In so construing MCL 500.3177; MSA 24.13177, we are guided by the logic of Heard v State Farm Mutual Automobile Ins Co, 414 Mich 139; 324 NW2d 1 (1982), reh den 414 Mich 1111 (1982). The Heard case involved a person who was struck by an automobile while he was pumping gasoline into his uninsured vehicle. The insurer argued that § 3113 of the no-fault act, MCL 500.3113; MSA 24.13113, denied Heard benefits because his uninsured vehicle was invloved in the accident. Our Supreme Court found that Heard was entitled to benefits because, at the time of the accident, his vehicle was not in use as a motor vehicle, but rather was more like a stationary roadside object. 414 Mich 145. The Court opined:_
"The disqualification of an uninsured owner from entitlement to no-fault benefits is not absolute. While the no-fault act does indeed provide that the owner of an uninsured 'motor vehicle involved in the accident’ is not entitled to recover PIP benefits, the converse is equally true: the owner of an uninsured vehicle is entitled to recover PIP benefits if his uninsured motor vehicle is not 'involved in the accident’. An owner is entitled to PIP benefits, although he has not insured his vehicle, if he suffers injury in a motor vehicle accident while he is a pedestrian, a bicyclist, a motorcyclist, or a passenger in another vehicle.
"Since the penalty for failing to purchase no-fault insurance is limited to disqualification for benefits when the uninsured vehicle is involved in the accident, it begs the question to argue that Heard is 'seeking to take advantage’ of those who have contributed to the system. Because Heard’s uninsured vehicle was not involved in the accident and he was a pedestrian and not a motorist or occupant of a motor vehicle (or, if one prefers, he was more like a pedestrian than a motorist or occupant), he is as much entitled — under the terms and policies of the no-fault act — to recover from the insurer of the vehicle that struck him as is a pedestrian or motorcyclist who does not own an automobile (or a pedestrian or motorcyclist who does own an automobile but who, like Heard, has not purchased no-fault insurance) and who also has not contributed 'to the fund from which benefits are to be paid’.” (Footnotes omitted, emphasis in Heard.) 414 Mich 145-146.
It is well established that courts must not construe a statute to achieve an absurd or unreasonable result. Luttrell v Dep’t of Corrections, 421 Mich 93, 106; 365 NW2d 74 (1984), reh den 422 Mich 1201 (1985). It would be absurd to hold that an uninsured motorist may recover under Heard but must reimburse the insurer where the accident involves his spouse (or a relative resident in his household). In addition, the penalty imposed by § 3177, i.e., suspension of the owner’s license and registration, is so severe that it would be unrea sonable to enforce it where a spouse (or relative resident in the uninsured’s household) suffers damages as a pedestrian and the uninsured vehicle is not involved in the accident. Reason dictates reserving such a penalty to situations in which the uninsured vehicle was involved.
Thus, we conclude that in this case, where the uninsured vehicle was not even remotely involved in the accident, § 3177 does not require Elbode to reimburse Allstate for no-fault benefits paid as a result of Elbode’s wife’s death. We, therefore, reverse the trial court’s grant of summary judgment in favor of Allstate and remand this case for entry of summary judgment on this issue in Elbode’s favor.
Reversed and remanded.
Plaintiff also argues that his vehicle was not, at the time of the accident, subject to the registration and security requirements found in MCL 500.3101; MSA 24.13101. Section 3177 defines an uninsured motor vehicle as a "motor vehicle with respect to which security as required by sections 3101 and 3102 is not in effect at the time of the accident”. Plaintiff reasons that, since his vehicle was parked outside the restaurant and was not being "driven or moved upon a highway” during the accident, it did not have to be registered under MCL 257.216; MSA 9.1916. As it was not required to be registered, plaintiff theorizes, he was not required to maintain security on it under § 3101 and so was not "uninsured” under § 3177. As this argument was not raised in the court below and because we find such an interpretation of MCL 257.216; MSA 9.1916 illogical, we summarily reject it.
Under the priority provisions of the no-fault act, had plaintiff been insured, his insurer would have been responsible for providing survivors’ loss benefits for his wife’s death under § § 3114(1) and 3115(1), even though she was not an occupant of a motor vehicle at the time of the accident. MCL 500.3114(1); MSA 24.13114(1), MCL 500.3115(1); MSA 24.13115(1), Royal Globe Inc Cos v Frankenmuth Mutual Ins Co, 419 Mich 565, 569-570; 357 NW2d 652 (1984). Defendant was second in order of priority under § 3115(1) and only became liable for these benefits because plaintiff did not have no-fault insurance.
Section 3177 was amended in 1984 by 1984 PA 426, § 1, effective March 29,1985. It now reads in pertinent part:
"Sec. 3177. (1) An insurer obligated to pay personal protection insurance benefits for accidental bodily injury to a person arising out of the ownership, maintenance, or use of an uninsured motor vehicle as a motor vehicle may recover such benefits paid and appropriate loss adjustment costs incurred from the owner or registrant of the uninsured motor vehicle or from his or her estate. Failure of such a person to make payment within 30 days after judgement is a ground for suspension or revocation of his or her motor vehicle registration and license as defeined in section 25 of the Michigan vehicle code, Act No. 300 of the Public Acts of 1949, being section 257.25 of the Michigan Compiled Laws. An uninsured motor vehicle for the purpose of this section is a motor vehicle with respect to which security as required by sections 3101 and 3102 is not in effect at the time of the accident.”
The amendment added, inter alia, the requirement that the accidental bodily injury arise out of ownership, maintenance or use of an uninsured motor vehicle as a motor vehicle. This amendment is consistent with our interpretation of the former version of the statute, since it requires a closer connection between the bodily injury and the uninsured motor vehicle. In the instant case, the injury which occurred did not arise out of the ownership, maintenance or use of an uninsured motor vehicle as a motor vehicle. There was no causal connection between the injury which resulted in plaintiffs spouse’s death and the ownership, maintenance or use of the uninsured motor vehicle. See Denning v Farm Bureau Ins Group, 130 Mich App 777, 782; 344 NW2d 368 (1983), lv den 419 Mich 877 (1984). | [
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Per Curiam.
Plaintiff appeals as of right from an order denying her motion to set aside an arbi tration argeement and for an evidentiary hearing. Accelerated judgment was granted for defendants on the ground that a valid arbitration agreement existed pursuant to the Medical Malpractice Arbitration Act, MCL 600.5040 et seq.; MSA 27A.4040 et seq., and that therefore the circuit court lacked subject-matter jurisdiction.
On September 6, 1977, plaintiff’s decedent was treated at Providence Hospital for a burn he received to his arm while working on the radiator of his car. On September 7, 1977, after a second treatment, Mr. Metz was found dead. Plaintiff filed this suit on June 26, 1979, alleging medical malpractice.
On May 21, 1983, defendant Providence Hospital filed a motion to compel arbitration and for accelerated judgment on the ground that David Metz had executed a valid arbitration agreement on September 6, 1977, in connection with his treatment at Providence Hospital. The motion stated inter alia:
"2. That said plaintiff executed a valid Arbitration Agreement, dated September 6, 1977 (a copy of which is attached hereto and made a part hereof).
"3. That said Arbitration Agreement was prepared, presented and executed pursuant to the provisions of MCLA 600.5040 et seq. (Michigan Medical Malpractice Arbitration Act).”
On July 3, 1980, plaintiff filed a response, answering paragraphs 2 and 3 as follows:
"2. Plaintiff denies for the reason that the medical malpractice arbitration statute is unconstitutional, and that, therefore, the document purported to be an 'Arbitration Agreement’ is null, of no force, and therefore not binding on the plaintiff herein.
"3. Plaintiff neither admits nor denies.”
An order was not entered until October 5, 1983. It was signed by Oakland County Circuit Court Judge Fred M. Mester and stated in part:
"This Court has under advisement a motion compelling arbitration in this case. This issue turns on whether or not this Court fínds the Medical Malpractice Arbitration Act valid. Plaintiff signed an agreement to arbitration and waiver of jury trial pursuant to MCLA 600.5040 et seq. Now, Plaintiff seeks to litigate this matter, and not go to arbitration. The Medical Malpractice Arbitration Act has been attacked on a number of grounds and the courts have split on the question of validity of the Act. The Supreme Court granted leave to appeal on two (2) of the cases decided by the Court of Appeals, Morris v Metriyakool, 107 Mich App 110 (1981) and Jackson v Detroit Memorial Hospital, 110 Mich App 202 (1981). Since oral arguments were heard on this appeal in March of 1983, this Court sees no value in making any determination regarding the validity of the Act. Thus, this Court orders that the proceedings in this case be stayed pending the opinion of the Supreme Court regarding the validity of the Act.” (Emphasis added.)
On March 1, 1984, the Supreme Court issued its opinion in Morris v Metriyakool, 418 Mich 423; 344 NW2d 736 (1984), upholding the validity of the Medical Malpractice Arbitration Act. Providence then requested a ruling on the motion to compel arbitration. At a pretrial conference on April 6, 1984, held before Judge David F. Breck, to whom the case had been reassigned, the judge apparently indicated that any motion by plaintiff to set aside the arbitration agreement and for an evidentiary hearing was to be heard within 30 days of the pretrial conference. Plaintiff filed the motion on May 3, 1984, but it was not heard until May 16, 1984. Judge Breck denied plaintiff’s motion, stating that it was not heard timely and that in the order staying the proceedings plaintiff had failed to preserve any issue other than the constitutionality of the act.
GCR 1963, 116.3 provided that when a motion for accelerated judgment is made, both the moving party and the opposing party have the right to an evidentiary hearing to determine facts in dispute. In this case, plaintiff neither admitted nor denied that the arbitration agreement was prepared, presented and executed pursuant to the act. GCR 1963, 111.5 provided that averments in a pleading to which no responsive pleading is required shall be taken as denied or avoided. Because no response was required to defendants’ motion for accelerated judgment (see GCR 1963, 110.1), we find that plaintiff never conceded the factual issue on which the motion for accelerated judgment rested.
Defendant hospital contends that plaintiff’s 1980 response opposed arbitration on the single legal ground that the Medical Malpractice Arbitration Act was unconstitutional and waived the right to address other issues. Such a contention misconstrues GCR 1963, 116. Nothing in it required a plaintiff to list all "defenses” to the defenses raised by a defendant in a motion for accelerated judgment. Under GCR 1963, 110.1, plaintiff had no duty to respond to the motion, much less a duty to raise every possible issue of contention.
Defendants also attach undue importance to a statement in the stay order: "This issue [i.e., to compel arbitration] turns on whether or not this Court finds the Medical Malpractice Arbitration Act valid.” We do not feel the circuit court intended to preclude plaintiff from addressing factual issues, as such a ruling would have been erroneous. Since all factual issues had not been resolved, plaintiff had a right to an evidentiary hearing. Erickson v Goodell Oil Inc, 384 Mich 207, 213; 180 NW2d 798 (1970). Recently, this Court has held that when the validity of a medical arbitration agrément is at issue, the plaintiff has a right to an evidentiary hearing before a motion for accelerated judgment may be granted. May v St Luke’s Hospital, 139 Mich App 452; 363 NW2d 6 (1984); Aluia v Harrison Community Hospital, 139 Mich App 742; 362 NW2d 783 (1984).
Finally, we attach little importance to the fact that the circuit court judge’s order was based partially upon plaintiff’s failure to have her motion heard within 30 days. GCR 1963, 116.3 stated: "Any defense or objection raised under this rule whether in a responsive pleading or by motion, may be noticed for hearing by either party as if raised by motion.” (Emphasis added.) Thus, plaintiff was entitled to an evidentiary hearing by filing a notice of hearing. GCR 1963, 116.3 did not require that a motion for hearing be filed nor does it impose a limit on the timé within which a party must request an evidentiary hearing. See Kengal v Palco, 90 Mich App 338; 282 NW2d 312 (1979). Also, plaintiff’s failure to press the factual issues while the constitutional issues were being contested in this Court and the Supreme Court does not preclude plaintiff from now seeking resolution of the factual issues. Kengal, supra.
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Per Curiam.
The appellant, Freeman-Darling, Inc. (hereinafter Freeman), initiated this cause of action seeking the recovery of damages from defendant-appellee Andries-Storen-Reynaert Multi Group, Inc. (hereinafter ASR), due to ASR’s allegedly negligent failure to properly perform its contract with the State of Michigan. The trial court granted the appellee’s motion for summary judgment pursuant to GCR 1963, 117.2(1). The resulting appeal is as of right.
The instant case arose out of the construction of the Ypsilanti Correctional Facility by the State of Michigan under a "multi-prime” contract arrangement. Under this plan, rather than hire a general contractor to coordinate the construction, the state awarded nine different contracts covering various phases of the facility’s construction. Each of the nine contractors entered into separate contracts directly with the state.
Under the terms of its contract with the state, ASR was required to furnish special locking hardware for a security system to be built into the facility’s administrative/medical building. The basis of Freeman’s complaint against ASR was that, in selecting a subcontractor to perform the installation of the security locking system, ASR caused an unreasonable delay which affected Freeman’s ability to proceed with and fulfill its own contractual obligations. In causing the work delay, it was alleged that ASR breached certain duties owed to Freeman, to-wit: the duty "to perform its work in accordance with the expressed and implied terms and conditions of defendant ASR’s contract with the Owner [the state]”, and the duty "to refrain from taking actions, inactions, and making omissions, which a similarly situated construction contractor would know, and otherwise should know, would injure plaintiff and plaintiff’s conduct and execution of its work pursuant to plaintiff’s contract with the owner”.
In essence, the theory upon which Freeman seeks to recover against ASR is the "negligent interference with a contractual relationship”. We are therefore presented with an action in tort based upon the defendant’s failure to perform its contract with a third party. The issue to be resolved, then, is whether Michigan recognizes such a cause of action.
Appellant Freeman begins its argument on appeal by citing two Michigan Supreme Court cases, Clark v Dalman, 379 Mich 251; 150 NW2d 755 (1967), and Williams v Polgar, 391 Mich 6; 215 NW2d 149 (1974), for the broad generalization that "Michigan recognizes an action in tort in favor of a non-contracting party which arises out of a contractual relationship”. We believe the import of Clark and Williams was more accurately described in Crews v General Motors Corp, 400 Mich 208, 220-232; 253 NW2d 617 (1977) (opinion by Williams, J.), where Justice Williams indicated that Clark stood only for the proposition that "a duty underlying an action in tort may arise out of a contractual relationship”. Crews, supra, p 225 (emphasis supplied). However, "a tort action will not lie when based solely on nonperformance of a contractual duty”. Crews, supra, p 226 (emphasis in original).
The distinction between the above-stated propo sitions, although difficult to make, is significant. The concepts with which we are concerned were fully explored by the Supreme Court in Hart v Ludwig, 347 Mich 559;79 NW2d 895 (1956). The contract in Hart was for the care and maintenance of an orchard owned by plaintiffs which the defendant failed to complete. As in the present case, the plaintiffs alleged that defendant’s omissions were contrary to the common law and constituted negligence. In analyzing the viability of an action in tort arising solely out of the breach of a contract, the Hart Court cited the following passage from a Massachusetts case, Tuttle v Gilbert Manufacturing Co. 145 Mass 169; 13 NE 465 (1887), which involved a suit by a lessee for injuries sustained when a barn floor, which the lessor had agreed to repair, collapsed:
" 'The action of tort has for its foundation the negligence of the defendant, and this means more than a mere breach of a promise. Otherwise, the failure to meet a note, or any other promise to pay money, would sustain an action in tort for negligence, and thus the promissor be made liable for all the consequential damages arising from such failure.
" 'As a general rule, there must be some active negligence or misfeasance to support tort. There must be some breach of duty distinct from breach of contract. In the case at bar, the utmost shown against the defendant is that there was unreasonable delay on its part in performing an executory contract. As we have seen, it is not liable by reason of the relation of lessor and lessee, but its liability, if any, must rest solely upon a breach of this contract.’ ” Hart, supra, p 563.
The Court went on to identify the important distinction as being one of misfeasance, which may support an action in either tort or contract, and nonfeasance of a contractual obligation, which gives rise only to an action on the contract. The Court elaborated as follows:
"There are, it is recognized, cases in which an incident of nonfeasance occurs in the course of an undertaking assumed. Thus a surgeon fails to sterilize his instruments, an engineer fails to shut off steam, Kelly v Metropolitan R Co, [1895] 1 QB 944 (72 LT 551), a builder fails to fill a ditch in a public way, Ellis v McNaughton, 76 Mich 237 (15 Am St Rep 308). These are all, it is true, failures to act, each disastrous detail, in itself, a 'mere’ nonfeasance. But the significant similarity relates not to the slippery distinction between action and nonaction but to the fundamental concept of 'duty’; in each a situation of peril has been created, with respect to which a tort action would lie without having recourse to the contract itself. Machinery has been set in motion and life or property is endangered. It avails not that the operator pleads that he simply failed to sound the whistle as he approached the crossing. The hand that would spare cannot be stayed with impunity on the theory that mere nonfeasance is involved. In such cases in the words of the Tuttle Case, supra, we have a 'breach of duty distinct from contract.’ Or, as Prosser puts it (Handbook of the Law of Torts [1st ed], § 33, p. 205) 'if a relation exists which would give rise to a legal duty without enforcing the contract promise itself, the tort action will lie, otherwise not.’ ” Hart, supra, pp 564-565.
Applying these concepts to the facts of Clark v Dalman, supra, reveals its inapplicability to the present situation. The defendant in Clark entered into a contract with the City of Otsego to repair, clean and paint a city water tank. Plaintiff was an employee of an engineering firm responsible for inspecting the defendant’s work on the project. In carrying out its contract with the city, defendant coated the walls, floor and ladder inside the tank with an extremely slippery substance. When plaintiff went to inspect defendant’s progress, he slipped on the substance and fell to the bottom of the tank. Plaintiff sued, claiming that his injuries resulted from the defendant’s failure to notify the engineering firm that the tank had been coated with a greasy substance. In reversing a directed verdict for the defendant, the Supreme Court addressed the crucial duty of care issue as follows:
"Actionable negligence presupposes the existence of a legal relationship between parties by which the injured party is owed a duty by the other, and such duty must be imposed by law. * * *
"* * * Moreover, while this duty of care, as an essential element of actionable negligence, arises by operation of law, it may and frequently does arise out of a contractual relationship, the theory being that accompanying every contract is a common-law duty to perform with ordinary care the thing agreed to be done, and that a negligent performance constitutes a tort as well as a breach of contract. But it must be kept in mind that the contract creates only the relation out of which arises the common-law duty to exercise ordinary care. Thus in legal contemplation the contract merely creates the state of things which furnishes the occasion of the tort. This being so, the existence of a contract is ordinarily a relevant factor, competent to be alleged and proved in a negligence action to the extent of showing the relationship of the parties and the nature and extent of the common-law duty on which the tort is based.” 379 Mich 251, 260-261.
Thus, while the contractual relationship brought the parties together and furnished the occasion of the tort, the defendant owned a general duty, imposed by the common law, "to act so as not to unreasonably endanger the well-being of employees of either subcontractors or inspectors, or anyone else lawfully on the site of the project * * 379 Mich 262. To paraphrase Prosser, a relation existed which gave rise to a legal duty without enforcing the contract promise itself, and thus it was properly held that a tort action would lie. Prosser, Torts (1st ed), § 33, p 205; Hart, supra, p 565.
The same cannot be said of the case now before us. Freeman’s only allegation against ASR was that ASR failed to perform the work in accordance with the terms and conditions of its contract with the state. More specifically, ASR allegedly caused an unreasonable delay in connection with its designation of a subcontractor to perform the security locking system installation. As in Hart, ASR did not violate a duty imposed upon all, for the common law does not insist that contractors perform their work without unnecessary delay. Rather, the duty in question was voluntarily assumed by ASR when it entered into a contract with the state. The contractual relationship was not merely the occasion of a duty arising by operation of law; rather, the entire existence of the duty depended upon the contract promise. Therefore, the breach of those contractual obligations could not provide the basis for an action sounding in tort. The motion for summary judgment based upon the failure to state a claim upon which relief could be granted was properly granted.
Affirmed.
We note that the facts before us differ from those presented in Hart in that Hart concerned an action in tort based upon the breach of defendant’s promise to the plaintiff, while here plaintiff Freeman has based its cause of action upon defendant ASR’s breach of promise to a third party, i.e., the state. This distinction does nothing to change the analysis contained herein, however. Since ASR had no legal duty to perform the work in question without enforcing the contract, the legal concepts set out in Hart v Ludwig, 347 Mich 559; 79 NW2d 895 (1956), require the identical conclusion, i.e., that no action in tort will lie.
The resolution of this case does not require that we address to whom the duty to perform the contracted-for work was owed, and thus we need not consider the effect of Freeman’s third-party status in regards to the ASR-State of Michigan contract. | [
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P. J. Duggan, J.
Plaintiff was designated the beneficiary on her husband’s life insurance policy with defendant Knights of Columbus. Following her husband’s death, plaintiff submitted a claim for life insurance proceeds which was denied by defendant Knights of Columbus on the basis that her husband, Glenn Pellenz, had made false statements on his application for life insurance. Following the denial, plaintiff filed suit. Defendants sought summary judgment pursuant to GCR 1963, 117.2(1), claiming that plaintiff’s complaint failed to state a cause of action, and pursuant to GCR 1963, 117.2(3), claiming that it was undisputed that the applicant made false statements and therefore, as a matter of law, defendants were entitled to summary judgment.
Although defendants’ motion was brought pursuant to both GCR 1963, 117.2(1) and 117.2(3), it is clear that the parties and the trial judge essentially treated defendants’ motion as one brought pursuant to GCR 1963, 117.2(3). In granting defendants’ motion for summary judgment, the trial judge relied significantly on information outside of the pleadings. In particular, he relied on deposition testimony, and, based on such information, the trial judge concluded that there was no genuine issue of fact. We shall therefore review the trial court’s decision as a grant of summary judgment pursuant to GCR 1963, 117.2(3). Lawrence v Dep’t of Treasury, 140 Mich App 490, 494; 364 NW2d 733 (1985); Huff v Ford Motor Co, 127 Mich App 287, 293; 338 NW2d 387 (1983).
The life insurance application specifically inquired as to whether or not the applicant had ever received treatment, attention, or advice from any physician for any lung disease or for any disorder of the lymph glands. The applicant answered these questions in the negative. The deposition testimony of the physicians indicates that these answers were false. The deposition testimony clearly shows that Mr. Pellenz consulted with at least two physicians and was advised by these physicians that he had possible lung cancer or a tumor in the lymph nodes. We agree with the trial court’s conclusion that Mr. Pellenz knowingly caused false information to be placed on the application for insurance and that those misrepresentations materially affected the insurer’s acceptance of the risk.
Plaintiff argues that, even if her husband gave false information on the application, the agent for defendant Knights of Columbus knew that such information was false and that knowledge of the true facts on the part of the agent is imputed to the principal, thereby estopping defendant Knights of Columbus from denying coverage. See Hughes v John Hancock Mutual Life Ins Co, 351 Mich 302; 88 NW2d 557 (1958).
Defendant Knights of Columbus denies that full disclosure was made to the agent. Defendant Knights of Columbus further contends that, even if full disclosure had been made to its agent, the imputation of such knowledge to the principal is vitiated because plaintiffs deposition testimony reveals that her husband connived with its agent.
In Kane v Detroit Life Ins Co, 204 Mich 357, 364; 170 NW 35 (1918), the Court quoted from Ketchum v American Mutual Accident Ass’n, 117 Mich 521, 523; 76 NW 5 (1898), stating the general rule regarding "connivance” as follows:
"The courts have always been anxious to take care of the rights of the assured when the applicant has relied upon the agent informing the company what had been truthfully told to him about the character of the risk; but the courts never have said the company is bound by statements contained in an application, when not only the agent, but the assured, knows they are untrue, and calculated to deceive, and the application is to be forwarded to the company as the basis of its action. To so hold would put these organizations completely at the mercy of dishonest and unscrupulous agents.” (Emphasis supplied.)
The Kane Court held that, because there was persuasive proof of the assured’s fraudulent intent, the factual issue of whether defendant insurance agent had actual knowledge that the statements were false became immaterial.
The Court in Hughes, supra, while recognizing the general rule that information conveyed to the insurer’s agents will constitute information to the insurer and estop the insurer from denying coverage, did recognize that a different principle will be involved where there has been connivance between the agent and the insured:
"True, and as in the law of fraud generally, evidence tending to establish that the party accused of fraud has pertinently connived with the agent will, if believed by the trier and triers of fact, automatically vitiate such rule of imputation.” Hughes, supra, p 310.
Generally, the applicant has a right to assume that information conveyed to the agent will be communicated to the insurer. In order for defendant to be entitled to a summary judgment, the evidence must show (1) that Mr. Pellenz knowingly made material misrepresentations of fact despite disclosure of true facts to the agent, (2) that Mr. Pellenz expected and intended the false information to be submitted to the insurer, and (3) that Mr. Pellenz expected that the insurer would rely on such false information in providing insurance coverage.
The trial court held that reasonable minds could not differ as to the fraudulent intent on the part of Mr. Pellenz. We agree. Plaintiff testified that Mr. Pellenz knew that the answers recorded were false. She further testified that the agent told Mr. Pellenz that they would not indicate, on the application, the medical problems he was having (which had yet to be positively diagnosed) because "if it’s something serious I hope you make it for two years”. The testimony of plaintiff further supports the trial court’s conclusion that Mr. Pellenz was aware of the fact that the insurer would not know that the information on the application was false, but that he believed that the false statements would not make any difference if he lived for two more years.* A party is bound by his deposition testimony. Hollowell v Career Decisions, Inc, 100 Mich App 561; 298 NW2d 915 (1980). Taking all the evidence in a light most favorable to plaintiff, reasonable minds could not differ as to the fact that plaintiff’s husband knowingly made false answers on the insurance application with the intent to deceive the insurance company.
Affirmed._
The policy provided that, if it remained in effect for two years, it would be incontestable except for nonpayment of premiums. | [
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Per Curiam.
Plaintiff appeals as of right from the grant of summary judgment to defendants Mesirow and M.I.G. in this action seeking damages for the death of her husband, Guytano Pagano. We affirm and, therefore, find it unnecessary to address defendants’ cross-appeal.
Guytano Pagano was an employee at a Kroger store located in a shopping center owned by Mesirow and managed by M.I.G. On June 13, 1981, at approximately 10:50 p.m., Pagano attempted to apprehend Larry Burgess, a suspected shoplifter, just inside the exit from the store. Burgess pulled a gun, shot and fatally wounded Pagano, and fled from the store.
Plaintiff seeks relief on the theory that defendants Mesirow and M.I.G. were negligent in providing and supervising security personnel. The defendants provided security personnel to patrol and secure the common areas of the mall, particularly the parking lot. Kroger, however, had the sole responsibility to maintain security within its store.
The shopping center security service provided by defendants ceased patrol of the parking lot at approximately 9:30 p.m. each evening. Thus, there was no patrol on duty when Pagano was shot shortly before 11 p.m.
Defendants moved for summary judgment on the grounds that they had no duty to provide security inside the Kroger store where Pagano was shot. The court initially denied the motion, stating:
"I think you can raise a question * * * that the presence of the security forces generally on the property provide protection for the center, and it is intended to protect all of the members of the center or they wouldn’t provide it, and/or they would have a particular exclusion in that party’s lease, I would think.
"It is no different, really, than the forces that Hudson’s provides at Eastland, Northland. They operate for the benefit of all of the stores that are operating there, and if they were suddenly to take the position, we are going to close them at an arbitrary hour, knowing some of the parties were still operating their stores there, I think it is akin to the situation here, and I think they would be liable.”
Defendants subsequently brought a new motion supported by Williams v Detroit, 127 Mich App 464; 339 NW2d 215 (1983). In Williams, supra, the plaintiff, an alleged business invitee at an Autorama show held at Cobo Hall in Detroit, was shot by one of the Autorama exhibitors in an exhibit hall leased by Promotions, Inc., from the city. Promotions, Inc., was responsible for security for the leased premises while the city provided police patrols in the common areas of Cobo Hall. This Court ruled that the defendant should not be liable where it had not exercised control over the security of the leased premises.
The circuit court concluded that the rule of law enunciated in Williams was controlling, that its previous denial of defendants’ motion was in error, and it reluctantly granted defendants’ motion in reliance on Williams.
Plaintiff now argues that the common law principle enunciated in Williams arose from the English agrarian society and is inapplicable to the modern urban environment. However, we are not convinced that the principle should be discarded by us at this time. The Williams Court saw fit to apply the principle to a modern urban lease, in part because a majority of the Supreme Court in Samson v Saginaw Professional Building, Inc, 393 Mich 393; 224 NW2d 823 (1975), "apparently would not extend the landlord’s duty to incidents which occurred within the boundaries of the leased premises”. Williams, supra, p 470. We believe that a new direction in this area of the common law should come from the Supreme Court.
Plaintiff next argues that, even if a duty does not arise out of the relationship of the parties, defendant’s undertaking to provide security services gave rise to a duty to exercise reasonable care in the undertaking. This argument fails because defendants did not undertake to provide security on the leased premises of Kroger.
Plaintiff next argues that, in any event, defendants may be held liable for breach of their duty to maintain security in the common areas of the shopping center. Plaintiff asserts that different lighting and a security patrol would have deterred criminal activity and thus may have avoided the assault on Pagano. We disagree that defendants had the duty to provide security outside the Kroger store at all hours that the store was open. Escobar v Brent General Hospital, 106 Mich App 828; 308 NW2d 691 (1981). Even were there a duty, we note with the New Jersey Supreme Court that "there would also be exceptional uncertainty with respect to the issue of causation. This is so because of the extraordinary speculation inherent in the subject of deterrence of men bent upon criminal ventures. It would be quite a guessing game to determine whether some unknown thug of unknowable character and mentality would have been deterred if the owner had furnished * * * some additional police.” Goldberg v Housing Authority of Newark, 38 NJ 578, 590; 186 A2d, 297 (1962).
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M. R. Stempien, J.
Travelers Insurance Company appeals as of right from the trial court’s denial of its motion to intervene in Mary Lou Mason’s third-party tort action under MCL 418.827; MSA 17.237(827). We reverse.
On August 17, 1979, Mary Lou Mason (plaintiff) was injured in an automobile accident during the course of her employment with American Airlines. She was a passenger in an automobile owned by Martell Realty Corporation and Ann Arbor Inn Management Corporation and operated by James R. Scarpuzza. On November 9, 1981, plaintiff commenced a tort action against Scarpuzza, Martell, and Ann Arbor Inn alleging that the vehicle was being operated in a reckless and negligent manner and that, as a result, plaintiff "sustained and incurred hospital and medical expenses and will continue to incur same and she has incurred a great deal [of] pain and suffering and will continue to incur pain and suffering in the future and that her injuries are permanent in nature; [and that] * * * she sustained serious impairment of bodily function”.
Plaintiff received no-fault benefits for three years following the accident. On August 17, 1982, Travelers, as the workers’ compensation insurance carrier for American Airlines, began to pay plaintiff $175 a week in workers’ compensation bene fits. Through mid-April of 1984, Travelers paid $23,335 in weekly compensation benefits and $6,-456 in medical costs. On May 17, 1982, Travelers filed a notice of lien against any settlement or judgment plaintiff might secure in her lawsuit against Scarpuzza, Martell, and Ann Arbor Inn.
On July 8, 1983, Travelers filed a motion to intervene in the lawsuit pursuant to § 827(1) of the Worker’s Disability Compensation Act (wdca), MCL 418.827(1); MSA 17.237(827X1). The trial court ruled from the bench that it would grant Travelers’s intervention request provided that the parties could agree on a cost-sharing plan. Evidently no cost-sharing agreement was entered into because on August 26, 1983, the trial court issued an order denying Travelers’s request to intervene. On October 13, 1983, the trial court denied Travelers’s request for a rehearing on its intervention motion and this appeal followed.
The sole issue on appeal is whether Travelers had an unconditional right to intervene in plaintiff’s action against Scarpuzza, Martell, and Ann Arbor Inn under § 827 of the wdca. _
Travelers argues that its statutory right to intervene in this lawsuit is unrestricted and not subject to the trial court’s discretion. It maintains that the wdca provides that the apportionment of costs occurs after recovery and, therefore, that the trial court’s condition was contrary to the wdca.
As of the date of this appeal, plaintiff has not recovered a settlement or judgment in her cause against Scarpuzza, Martell, and Ann Arbor Inn.
The basis of the trial court’s decision not to allow intervention was that it believed that plaintiff was entitled to recover her costs expended thus far in the case and, if no agreement to that effect could be reached, Travelers would not be permitted to intervene in the action.
GCR 1963, 209.1 provides in relevant part as follows:
"Intervention of Right. Anyone shall be permitted to intervene in an action
"(1) when a statute of this state or a court rule confers an unconditional right to intervene * *
Section 827(1) provides that "[a]ny party in interest shall have a right to join in the action”. Because the statute grants a carrier who has paid compensation a substantive right to recover against a third-party tortfeasor, there is no question but that the insurance carrier is a real party in interest. See, e.g., Muskegon Hardware & Supply Co v Green, 343 Mich 340, 346; 72 NW2d 52 (1955); Detroit v Spivey, 68 Mich App 295, 299-300; 242 NW2d 561 (1976). Therefore, Travelers had the statutory right to intervene in plaintiff’s action against Scarpuzza, Martell, and Ann Arbor Inn.
Neither the court rule nor the wdca provides for a conditional right to intervene as proposed by plaintiff. The apportionment of expenses is not made by the court until after there has been a recover. MCL 418.827(6); MSA 17.237(827X6); Glavin v Baker Material Handling Corp, 132 Mich App 318, 324-326; 347 NW2d 222 (1984), remanded on other grounds 422 Mich 882 (1985). Therefore, the trial court incorrectly conditioned the grant of Travelers’s intervention request upon an apportionment of plaintiffs prerecovery expenses.
Plaintiffs reliance upon Harrison v Ford Motor Co, 370 Mich 683; 122 NW2d 680 (1963), is misplaced. Unlike the situation here, Harrison involved an insurance carrier which represented both sides to the controversy. The Court held that under those circumstances, because "[o]ne may not sue himself’, the insurance carrier could not intervene but, rather, had to await reimbursement from the plaintiffs recovery in the action. Harrison, supra, p 687.
For the reasons stated, we hold that Travelers had the right to intervene in the present action.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
M. J. Kelly, P. J., concurred.
There has been no claim on appeal that the workers’ compensation insurance carrier would not be entitled to share in the plaintiffs recovery because of the application of the no-fault act to the present controversy. In Great American Ins Co v Queen, 410 Mich 73; 300 NW2d 895 (1980), the Supreme Court discussed the interplay between the Worker’s Disability Compensation Act and the no-fault act with respect to the issue of reimbursement for benefits paid. Given the present posture of the case, it is unknown whether the workers’ compensation carrier will in fact be seeking reimbursement for payments which substitute for no-fault benefits "otherwise payable”. Thus, there would be no reason to deny Travelers’s request to intervene in this action on this ground. In fact, Queen permits a workers’ compensation carrier to receive reimbursement from third-party tort recoveries in the same manner as the payment of workers’ compensation benefits for non-motor vehicle related injuries when the workers’ compensation benefits do not substitute for no-fault benefits otherwise payable. 410 Mich 73, 97. In this case, plaintiff is suing for pain and suffering damages based upon her alleged serious impairment of bodily function. These are not the kind of damages "otherwise payable” under the no-fault act. See MCL 500.3135(1); MSA 24.13135(1). Therefore, the pleadings indicate that Travelers is not seeking reimbursement for payments which substituted for no-fault benefits otherwise payable. See and compare Bialochowski v Cross Concrete Pumping Co, Inc, 141 Mich App 315; 367 NW2d 381 (1985).
GCR 1963, 209.1 did not make provision for inquiring into the timeliness of an intervention request. On remand, subject to MCR 1.102, the lower court may determine whether, under MCR 2.209(A)(1), Travelers’s aplication to intervene was timely filed. | [
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Per Curiam.
Following a jury trial, General Motors Corporation was found to be liable for the negligent design of a 1973 GM truck door locking mechanism. Defendant, however, was found not to have breached an implied warranty. The jury found that plaintiff suffered damages in the amount of $50,000. That damage amount was reduced by 95% on the basis of plaintiff’s comparative negligence. Plaintiff now appeals, raising two issues.
It is undisputed that on October 4, 1977, plaintiff was injured when he fell out of a 1973 GM Astro truck. Plaintiff was employed as a "mover’s helper” for a moving company on the day in question. Plaintiff and Mr. Beard, the driver of the truck, were travelling from Leesburg, Florida, to Palm Beach, Florida, on the last leg of a trip when the accident occurred. At some point between Leesburg and Palm Beach, plaintiff fell asleep and his elbow apparently hit the door handle and the door popped open. Plaintiff fell out of the door and the truck ran over him. As a result of the accident, plaintiff suffered serious and permanent injuries.
Plaintiff testified that the GM truck was equipped with a lap seat belt but that he was not wearing it at the time of the accident. Plaintiff further testified that the truck was equipped with a sleeper berth which he did not use the majority of the time he accompanied the driver in the truck. The truck was also equipped with door locks, but plaintiff stated he never thought of using the locks while riding in the truck. Plaintiff alleged in his complaint that GM was negligent and liable for a breach of warranty in the design, manufacture and distribution of the truck because the company failed to properly design the door and handle so that it could not be opened accidentally.
Both plaintiff’s and defendant’s expert witnesses agreed that the design of the truck’s door locking mechanism was unconventional. Specifically, plain tiff’s expert opined that the design of the locking mechanism was unsafe because it allowed "accidental tripping” of the door handle which would open the door. The door’s "control lever” was designed so that one could open the door by depressing it downwards — as opposed to pulling it upward — making it easier to accidentally open the door. Also, the door was not equipped with an armrest. The door handle, however, was positioned at the normal level of a passenger’s elbow and protruded out. As a consequence, a passenger was likely to rest his arm on top of the door handle.
Plaintiff first argues that the trial court erred by allowing GM to use as a defense, and as evidence of comparative negligence, plaintiff’s failure to use a seat belt. We agree and reverse.
Two recent panels of this Court have rejected the use of the so-called "seat belt defense” even to show comparative negligence. Schmitzer v Misener-Bennett Ford, Inc, 135 Mich App 350; 354 NW2d 336 (1984); DeGraaf v General Motors Corp, 135 Mich App 141; 352 NW2d 719 (1984). Although these decisions were released after the trial in the case at bar, their holdings were presaged by earlier decisions rejecting use of the seat belt defense in contributory negligence cases. See Placek v Sterling Heights, 52 Mich App 619; 217 NW2d 900 (1974); Selmo v Baratono, 28 Mich App 217; 184 NW2d 367 (1970); Romankewiz v Black, 16 Mich App 119; 167 NW2d 606 (1969).
GM argues that Schmitzer is distinguishable from the present case since Schmitzer involved introduction of evidence of the non-use of seat belts to show that non-use of a seat belt increased the severity of the plaintiffs injuries. In the case at bar, defendant argues, plaintiffs non-use of his seat belt was a factor in the causation of the accident. Similarly, defendant seeks to distinguish DeGraaf, noting that DeGraaf involved a defect in manufacture while the present case involves a claim of a design defect.
We disagree with defendant’s argument that plaintiffs failure to wear his seat belt was an intervening or proximate cause of the accident. Defendant’s argument fails to recognize the relationship between negligence and a legal duty. That relationship was noted by this Court in Schmitzer, supra, p 358:
"Under any interpretation of comparative negligence, no matter how, or to what, negligence is compared, the trier of fact must first find that the plaintiff was negligent. Negligence will not be found merely upon proof of an act which causes injury; a finding of negligence can be sustained only where the person, in committing the injury-producing act, breached some legally cognizable duty. Butrick v Snyder, 236 Mich 300, 306; 210 NW 311 (1926); Sowels v Laborers’ International Union of North America, 112 Mich App 616, 620; 317 NW2d 195 (1981). Thus, even if we subscribe to defendants’ contention that plaintiffs’ failure to wear a seat belt proximately caused their injuries, we are still left with the question of whether plaintiffs’ failure to wear a seat belt was a breach of some legal duty.” (Emphasis in original.)
At the time of the accident, there was no statute mandating the use of seat belts. Thus, plaintiffs failure to wear a seat belt does not constitute negligence per se. At most, defendant could argue that plaintiff breached a duty to use ordinary care. Schmitzer, supra, pp 358-359. The Schmitzer Court rejected the argument that the duty to exercise ordinary care includes an obligation to wear a seat belt:
"To assert that plaintiffs had a duty to use ordinary care by 'buckling up’ at some point between entering their cars and immediately prior to the occurrence of the accidents imputes to plaintiffs the anticipation that an accident would occur. But, as a matter of law, plaintiffs had the right to assume that other drivers would obey traffic laws and use reasonable care. 'Contributory negligence cannot be imputed to a plaintiff for failure to anticipate negligent acts of a defendant.’ Koehler v Detroit Edison Co, 383 Mich 224, 233; 174 NW2d 827 (1970).
"The common law fails to provide a basis for concluding that plaintiffs’ failure to wear seat belts was a breach of their duty to use ordinary care. Moreover, imposition of such a duty is an act more appropriately performed by the Legislature. The Legislature is better equipped to consider the various issues raised by a law mandating seat-belt use, e.g., the majority of the population’s disinclination to wearing seat belts, the contradictory studies regarding the efficacy of seat belts as safety devices, and the collateral problems associated with other types of safety devices. I reiterate the conclusion of the Court of Appeals Judge Fitzgerald, in Romankewiz, supra, p 127, 'In summary, it is for the Legislature, which in its wisdom has prescribed seat belts, to prescribe any required use thereof if it chooses.” 135 Mich App 359.
We agree with the reasoning of the Schmitzer Court and find it applicable to the present case. The cause of the accident was the inadvertent opening of the door, not plaintiff’s failure to wear his seat belt. Although the latter may have caused or increased the severity of plaintiff’s injuries, we know of nothing in the record that connects the failure to wear the seat belt with the door’s opening when it should not.
Defendant also argues that evidence of plaintiff’s failure to wear his seat belt was admissible to show the reasonableness of the design of the motor vehicle as a whole. We disagree. First, it would be sufficient simply to introduce evidence that the truck was equipped with seat belts. Plaintiff’s failure to use a feature of the truck has no relationship to the question of whether the design of the truck was reasonable. Secondly, and more importantly, we do not believe that defendant could rely on a passenger’s wearing his seat belt in designing the truck since, as discussed above, the passengers were under no obligation to wear those seat belts. That is, defendant cannot escape liability for negligent design by relying on the assumption that a passenger will employ a safety device he is under no obligation to employ. We, therefore, reject defendant’s argument that the evidence was admissible to show the reasonableness of the design.
Finally, defendant argues that any error in admitting the evidence of plaintiff’s failure to wear his seat belt was harmless as the jury’s finding that plaintiff was 95% negligent was supported by other evidence on the record, including his failure to lock the door or use the sleeper berth. We are not prepared to say that the jury would have reached the same conclusion had they not received the evidence of plaintiff’s failure to use his seat belt. Accordingly, we remand the case for new trial.
Plaintiff next argues that the jury verdict was inconsistent in that defendant was found to be negligent in designing the truck door locking mechansim but found not to have breached an implied warranty. We disagree.
In Awedian v Theordore Efron Manufacturing Co, 66 Mich App 353; 239 NW2d 611 (1976), this Court held that a jury verdict finding the defendant guilty of negligence but not guilty of a breach of implied warranty was not inconsistent. See also Prentis v Yale Manufacturing Co, 421 Mich 670, 692; 365 NW2d 176 (1984) ("We do not dispute the generally recognized distinction between the elements of negligence and breach of warranty.”). We conclude that the jury verdict was not inconsistent and thus reversal is not required on this issue.
Reversed in part and remanded for a new trial consistent with this opinion. No costs, neither party having prevailed in full.
Defendant incorrectly argues that Schmitzer, supra, is without precedential value since an application for leave was pending before the Supreme Court. In fact, the Supreme Court denied leave on March 28, 1985. Schmitzer v Misener-Bennett Ford, Inc, 422 Mich 852 (1985).
We note that a different result would likely be reached for accidents occurring after July 1, 1985, the effective date of Michigan’s mandatory seat belt law. MCL 257.7Í0e; MSA 9.2410(5). The statute specifically provides that failure to wear a seat belt in violation of the statute may be considered evidence of negligence and may reduce the recovery of damages by no more than 5%. MCL 257.710e(5); MSA 9.2410(5X5). However, the accident in the case at bar occurred several years prior to the adoption of this statute. Nor is it argued that there existed an obligation at the time under Florida law, where the accident took place, for plaintiff to wear a seat belt.
From the record, it appears possible that even if plaintiff had worn the seat belt, he could nevertheless have placed his elbow on the door handle and inadvertently opened the door after falling asleep. This, the design defect, the ability of the door to be accidentally opened, existed independent of the circumstances surrounding a passenger’s use or non-use of his seat belt.
This, of course, does not apply where safety devices are passive. Thus, a manufacturer could show "crashworthiness” by referring to a design feature which, unlike seat belts, does not leave to the occupant the choice of whether to employ the safety device. | [
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V. J. Brennan, J.
Plaintiff appeals as of right from an order entered in Macomb County Circuit Court on July 17, 1984, which denied plaintiff’s motion for declaratory judgment and granted defendant’s motion for summary judgment, GCR 117.2(1). Plaintiff’s two-count complaint alleging height discrimination under the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and intentional infliction of emotional distress as a result of the alleged discrimination was dismissed.
On April 5, 1979, plaintiff filed an employment application with the City of Warren for the position of firefighter. The city has a minimum height requirement of 5 feet 8 inches for firefighters. On the employment application, plaintiff listed his height as 5 feet. 8 inches. Actually, his height is between 5 feet 6 inches and 5 feet 6 1/2 inches.
Besides completion of the employment application, to be placed on the eligibility list a firefighter applicant for the city must meet certain "preliminary requirements”, undergo written, verbal and agility tests, and be examined by the city physician. Because plaintiff’s application did not reveal any deficiencies in the preliminary requirements, plaintiff was allowed to complete the application process.
Of all the preliminary requirements and tests established by defendant, plaintiff met and passed each with the exception of the minimum 5 feet 8 inch height requirement.
After the many tests, plaintiff was examined by the city physician. When his height was measured and found to be less than 5 feet 8 inches, the examination ceased. In a letter allegedly dated December 18, 1979, (according to plaintiff) or De cember 2, 1979, (according to defendant), plaintiff was informed by the Warren Police and Fire Civil Service Commission that he had not successfully completed the examination for firefighter because he did not meet the minimum height requirement. According to defendant, plaintiff appealed the refusal of his application to the Warren Civil Service Commission and a hearing was held on December 18, 1979, during which the denial of plaintiff’s application was affirmed.
On April 8, 1981, plaintiff filed a two-count complaint against the City of Warren, alleging height discrimination in their employment practices, contrary to the prohibitions of the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. (hereafter Elliott-Larsen) and intentional infliction of emotional distress. Plaintiff prayed for monetary damages and attorney fees.
On May 19, 1981, in its answer, defendant admitted that "it was an employer and plaintiff was an applicant for the position of fire fighter within the meaning of the Michigan Elliott-Lawson [sic] Act (Mcl 37.2001) [sic]”, but denied that height was not exempted as a bona fide occupational qualification by MCL 37.2208; MSA 3.548(208). However, defendant did not plead as an affirmative defense that height was a bona fide occupational qualification. Rather, as its only affirmative defense, defendant alleged "that plaintiff is guilty of fraud by reason of his misrepresentation on his application submitted for fire fighter as to his true height and is estopped to claim discrimination by reason of this fraudulent misrepresentation”.
On September 11, 1981, plaintiff’s attorney filed a pretrial factual statement of plaintiff’s complaint and said that plaintiff "applied for employment as a fireman, stating that he was 5'8" tall because he, in fact, believed he was 5'8" tall”. On September 11, 1981, plaintiff also moved to strike defendant’s affirmative defense and moved for partial summary judgment, contending that "fraud is not an available defense to defendant if defendant relies upon a provision contrary to law”. Plaintiff, therefore, prayed that summary judgment be granted on Count I, plaintiffs height discrimination claim.
On November 10, 1981, defendant filed answers to interrogatories and stated that a rational basis existed for the height requirement. The deponent was Donald L. Soldenski. Neither the lower court file nor the interrogatories reveal what Soldenski’s job title is or what his job responsibilities were. The rational basis stated by Soldenski was based upon Soldenski’s opinion.
In an opinion dated June 30, 1982, the trial court denied plaintiffs September 11, 1981, motion to strike the affirmative defense and for partial summary judgment, finding that the alleged affirmative defense (i.e., plaintiffs misrepresentation of his height) was a legally sufficient defense. An appropriate order was entered on July 23, 1982.
In a motion filed on October 11, 1983, plaintiff requested that the trial court make legal findings to determine whether Elliott-Larsen supersedes the police and fire civil service act with respect to height requirements and moved for declaratory judgment. In a motion filed on November 4, 1983, the defendant countered plaintiffs motion and moved for summary judgment on both Counts I and II.
In an opinion dated June 25, 1984, the trial court denied plaintiffs October 11, 1983, motion and granted defendant’s motion for summary judgment on the ground that the fire and police civil service act exclusively controlled the hiring of firefighters, MCL 38.501 et seq.; MSA 5.3351 et seq. The court also determined that the fire and police civil service act permitted municipal city service commissions to adopt rules and regulations, that the defendant had adopted a rule establishing a height requirement, that height requirements "have been deemed reasonable for the proper and efficient running at [sic] a fire department”, and that it was not "his duty” to find the height requirement "unenforceable”.
An appropriate order was entered on July 17, 1984. From this order, plaintiff appeals as of right the dismissal of Counts I and II of his complaint.
The first issue for our determination is whether the Elliott-Larsen act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., applies to the minimum height requirement promulgated as a rule under the fire and police civil service act, 1935 PA 78, MCL 38.501 et seq.; MSA 5.3351 et seq., (Act 78), by the Warren Fire and Police Civil Service Commission.
Section 202 of Elliott-Larsen, MCL 37.2202; MSA 3.548(202), states:
"(1) An employer shall not:
"(a) Fail or refuse to hire, or recruit, or discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege or employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.” (Emphasis added.)
Section 201a, MCL 37.2201(a); MSA 3.548(201)(a), defines "employer” as "a person who has 1 or more employees, and includes an agent of that person”. Section 103(f), MCL 37.2103(f); MSA 3.548(103)(f), defines "person” to include, inter alia, "a political subdivision of the state”. Section 103(g), MCL 37.2103(g); MSA 3.548(103)(g), defines "political subdivision” to include, inter alia, a city. From the foregoing, it is clear that the defendant and its agents, here the Warren Civil Service Commission, are persons and defendant is an employer within the meaning and coverage of Elliott-Larsen.
Defendant contends that its civil service commission has authority under Act 78 to impose a height requirement. In § 9 of Act 78, MCL 38.509; MSA 5.3359, civil service commissions are required to "[prescribe, amend, and enforce rules and regulations for carrying into effect the provisions of this act”. In § 11, MCL 38.511; MSA 5.3361, civil service commissions are required to make rules for such "matters as are necessary to carry out the purposes of this act”. In the act’s preamble, one of the stated purposes of the act is "to provide a civil service system based upon examination and investigation as to merit, efficiency and fitness for appointment, employment and promotion” of firefighters and police officers. The city contends that its rule establishing 5 feet 8 inches as a minimum height requirement furthers the enunciated purposes of merit, efficiency and fitness and is, therefore, validly promulgated under Act 78.
Defendant further contends that Elliott-Larsen does not supersede Act 78 or rules and regulations properly promulgated thereunder. In support of this assertion, the city relies upon § 7 of Act 78, MCL 38.507; MSA 5.3357, which provides:
"On and after the date this act takes effect, appointments to and promotions in all paid fire and/or police departments of cities, villages or municipalities of any population whatsoever shall be made only according to qualifications and fitness to be ascertained by examinations, which shall be competitive, and no person shall be appointed, reinstated, promoted or discharged as a paid member of said departments regardless of rank or position, in any fire or police department of any city, village or municipality in the state of Michigan, in any manner or by any means other than those prescribed in this act. ” (Emphasis added.)
In its opinion, the trial court relied upon defendant’s interpretation of § 7 to grant defendant’s motion for summary judgment.
The Elliott-Larsen act provides that an employer may seek an exemption from the prohibitions of MCL 37.2202; MSA 3.548(202) by applying to the civil rights commission "for an exemption on the basis that religion, national origin, age, height, weight or sex is a bona fide occupational qualification reasonably necessary to the normal operation of the business or enterprise”. MCL 37.2208; MSA 3.548(208) (emphasis added). "Upon sufficient showing”, the civil rights commission "may grant an exemption to the appropriate section of’ the Elliott-Larsen act. Id.
Furthermore, MCL 37.2208; MSA 3.548(208) provides:
"An employer may have a bona fide occupational qualification on the basis of religion, national origin, sex, age or marital status, height and weight without obtaining prior exemption from the commission provided that an employer who does not obtain an exemption shall have the burden of establishing that the qualification is reasonably necessary to the normal operation of the business.”
We point out that:
"Civil rights acts seek to prevent discrimination against a person because of stereotyped impressions about the characteristics of a class to which the person belongs. The Michigan civil rights act is aimed at 'the prejudices and biases’ borne against persons because of their membership in a certain class * * * and seeks to eliminate the effects of offensive or demeaning stereo types, prejudices or biases.” Miller v C A Muer Corp, 420 Mich 355, 362-363; 362 NW2d 650 (1984).
In our opinion, Act 78 does not control this case, and it must be read together with the Elliott-Larsen act to give proper effect to both statutes.
We do not believe that the Legislature intended that Elliott-Larsen’s prohibitions against discriminatory practices could be ignored by any civil service commission having the authority to promulgate rules and set standards for employment qualifications under Act 78. The Elliott-Larsen act specifically provides for bona fide occupational requirements based upon height and other protected characteristics if the employer establishes that the height (or other) requirement "is reasonably necessary for the operation of a business”, and an exemption has not been previously applied for. MCL 37.2208; MSA 3.548(208). Act 78 is not to be used as a shield by civil service commissions to promulgate rules which may run contrary to other legislation which is designed to protect potential employees and employees from discriminatory employment practices. The Elliott-Larsen act prohibits discrimination in the hiring, firing, promotion, etc. of individuals. Act 78 concerns the hiring, firing, promotion, etc. of police officers and firefighters.
Civil rights legislation has traditionally been enacted to enable individuals to have access to opportunity based upon individual merit and qualifications and to prohibit decisions based upon irrelevant characteristics. Elliott-Larsen protects those individuals who apply for jobs and are hired under Act 78. The rule that statutes shall be construed in pari materia requires that "two or more statutes affecting a person or subject should be read together and each given effect if such can be done without repugnancy, absurdity or unreasonableness”. Rochester Community Schools Bd of Ed v State Bd of Ed, 104 Mich App 569, 578-579; 305 NW2d 541 (1981). That can be done in the present case.
If height is indeed a reasonable and necessary job qualification, Elliott-Larsen permits defendant to utilize such requirement if it can demonstrate that height is a bona fide occupational qualification. See MCL 37.2208; MSA 3.548(208). Defendant may either apply to the Civil Rights Commission for an exemption or establish the necessity of the requirement during litigation. MCL 37.2208; MSA 3.548(208). However, here, defendant has only asserted, without explanation, that the height requirement is "reasonable” and has not alleged that height is a bona fide occupational qualification. In defendant’s answers to interrogatories, Donald Soldenski (whose relationship to the defendant is unspecified) asserted that a height requirement is based upon "safety concerns for the fireman and the general public” and that "efficient teamwork is required in organized fire suppression and disparities in height under conditions of emergency reduce the efficiency and effectiveness of a firefighter team”. These conclusions, however, are not based upon any study or research but upon the conclusions drawn by Mr. Soldenski "after twenty-eight (28) years of observation and experience in the field of fire suppression”. While Mr. Soldenski states disparities in height cause inefficiencies, defendant has no maximum height requirement.
Defendant has never specifically alleged that its height requirement was imposed for strength considerations. Strength is vigorously tested by defendant through its agility test. We note that discrimination in employment based upon strength is not barred by Elliott-Larsen; therefore, defendant would have no burden to prove that strength is a bona fide occupational qualification.
Finally, we note that the United States Supreme Court in Dothard v Rawlinson, 433 US 321; 97 S Ct 2720; 53 L Ed 2d 786 (1977), affirmed a district court’s finding that Title 7 prohibited Alabama from requiring that applicants for prison guard positions stand 5 feet 2 inches tall and weigh 120 pounds. The Supreme Court also affirmed the district court’s finding that the defendant had failed to present any evidence to demonstrate that such requirements were bona fide occupational qualifications. In Dothard, the height and weight requirements were disallowed because of their disparate impact upon a protected class, i.e., females. In Michigan, height itself is the protected characteristic.
We conclude that Act 78 is not exclusive and, therefore, the explicit language of the Elliott-Larsen act requires that defendant not discriminate on the basis of height unless such is established to be a bona fide occupational qualification. Therefore, we hold that the trial court erred in granting defendant summary judgment under GCR 1963, 117.2(1) on the ground that the provisions of Act 78 controlled and that the Elliott-Larsen act did not apply to the situation at bar.
We do point out that, once promulgated, the rules made by an agency to govern its activity cannot be violated or waived by the agency that issued the rules. See De Beaussaert v Shelby Twp, 122 Mich App 128, 129; 333 NW2d 22 (1982). The civil service commission could not have waived the 5 feet 8 inch minimum height requirement to allow the plaintiff to complete the application process. The rules would have had to have been changed.
The circuit court was faced with a difficult task. If the court had decided that the Elliott-Larsen act applied here, the next step would have been to hold a hearing to determine whether the 5 feet 8 inch height requirement was indeed a bona fide occupational qualification under the Elliott-Larsen act. Under GCR 117.2(1), the hearing would have been improper. On appeal, we have no record evidence to determine whether the 5 feet 8 inch requirement is "reasonably necessary to the normal operation of the business”. MCL 37.2208; MSA 3.548(208). Therefore, we find it necessary to remand to the trial court for such a hearing.
We also point out that plaintiff did not seek reversal of the commission’s decision. Plaintiff had challenged the height requirement imposed by the commission as a violation of the proscriptions of the Elliott-Larsen act; thus, plaintiff had direct access to the circuit court to challenge the alleged discriminatory requirement. MCL 37.2801; MSA 3.548(801).
Our examination of plaintiffs allegations in Count II of his complaint for intentional infliction of emotional distress and the pertinent law in the area leads us to conclude that the alleged conduct pled by plaintiff, the imposition of a 5 feet 8 inch minimum requirement, was not so outrageous in character and so extreme in decree as to go beyond all bounds of decency. Therefore, plaintiff had failed to state a claim under GCR 117.2(1) and we affirm dismissal of Count II of plaintiffs complaint.
We direct that, on remand, the trial court, in its review of the reasons proffered by defendant for the 5 feet 8 inch restriction, should consider those reasons in light of all applicants with heights below the 5 feet 8 inch requirement, rather than with just this particular plaintiff (and his other qualifications) in mind.
Reversed as to Count I and remanded for proceedings not inconsistent with this opinion. Affirmed as to Count II.
We do not retain jurisdiction.
On July 23, 1979, during the time plaintiff was still involved in the application process with the City of Warren, plaintiff accepted an unspecified position with the Farmington Hills Fire Department. | [
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Shepherd, P.J.
Petitioner Cynthia Cain appeals as of right from a Calhoun County Probate Court order of September 6, 1984, dismissing her petition to remove respondent Betty Jo McDonald as personal representative of the estate of Bobby Lee Cain. (Docket No. 80513.) In a consolidated case, plaintiff Cynthia Cain and deceased’s children appeal from a Calhoun County Circuit Court order granting defendants’ motion for accelerated judgment on plaintiffs’ claim that legal title to certain assets was in the estate. (Docket No. 82133.) We affirm the circuit court dismissal, and affirm the probate court order dismissing the petition to remove the personal representative, but remand to the probate court for further proceedings on the issue of legal title to a sum of $25,000.
The deceased died testate by hanging himself while in the Battle Creek City Jail on January 26, 1984. The deceased’s will appointed Betty Jo McDonald (McDonald), deceased’s mother, as the personal representative of his estate. Defendant Cynthia Cain (Cain), deceased’s estranged wife, filed a petition with the probate court to remove Mc Donald as personal representative, alleging that she had been adverse, uncooperative, uncaring and hostile toward the beneficiaries of the estate; that she has not fully accounted for assets or liabilities of the estate; that she wrongfully sold an asset of the estate; and that she has conflicts with the best interests of the estate. Although Cain complains of the handling of a number of small items allegedly belonging to the estate, the major portion of the controversy surrounds the distribution of $25,000 from bank accounts with Comerica Bank in which the deceased had an interest.
On August 24, 1984, after a hearing on Cain’s petition to remove McDonald as personal representative, the probate court held that McDonald had not committed any act requiring her removal as personal representative of the estate. The court specifically found with regard to the disputed $25,-000 that because deceased and Leaborn Barker, deceased’s uncle, had signed a signature card before deceased’s death, and because deceased and Barker were living together at the time and had a long history of joint accounts together, deceased manifested a clear intent to create a joint account with Barker. The probate court opined that it was proper for the personal representative not to have inventoried the amounts because legal title to them was in the name of Barker as the survivor of the deceased. The court added that its finding did not preclude an action in the circuit court on behalf of the children for the creation of a constructive trust over such funds in their favor. On September 6, 1984, the probate court entered an order dismissing the petition, ordering the personal representative to file a second amended inventory, including the contents of a safety deposit box as assets of the estate, and ordering the widow to file a new petition requesting a homestead allowance within 30 days of the filing of the amended inventory.
On September 4, 1984, plaintiffs in the circuit court action filed a complaint requesting that the $25,000 from the joint bank account, a coin collection, property contained in a safety deposit box and approximately $400 in cash be declared assets of the plaintiffs or, in the alternative, assets of the estate of the deceased. Plaintiffs did not contend that the children had equitable title to the assets and that a constructive trust should be imposed. Rather they argued, as petitioner had argued before the probate court, that legal title belonged to the plaintiffs or the estate. Plaintiffs also sought a restraining order or injunction prohibiting the withdrawal or other distribution of the monies by either Barker or McDonald from defendant Great Lakes Federal Savings & Loan. Barker brought a motion for accelerated judgment, and a hearing on the motion was held on October 22, 1984. The circuit court, stating that the prayer for relief was to determine ownership of the money, granted the motion for accelerated judgment on the ground that the probate court, not the circuit court, had jurisdiction over the dispute.
We first address the issue of whether the probate court abused its discretion by refusing to remove McDonald from her position as personal representative of the estate. Section 574 of the Revised Probate Code, MCL 700.574; MSA 27.5574, governs removal of a personal representative by the court. It provides in pertinent part:
"If a fiduciary resides out of this state or, after due notice by the court, neglects to render his account and settle the estate according to law or to perform any order of the court or absconds or otherwise becomes unsuitable or incapable to discharge the trust, the court may remove the fiduciary by an order therefor following hearing, notice of which may be given in any manner provided by supreme court rule.”
Petitioner Cain contends that certain alleged improprieties in McDonald’s handling of estate assets and inventory of assets warrant McDonald’s removal as personal representative. Cain alleges that certain estate assets were not listed in the inventory, including a coin collection worth approximately $800, a ring and a watch, and most importantly, the $25,000 from the joint checking account. She also claims that the personal representative wrongfully sold a car Cain wanted for her own use. The probate court concluded that the $25,000 was not an estate asset and, thus, properly was excluded from the inventory. With regard to the ring, watch, and coin collection, the court held that these items were estate assets and ordered that they be included in an amended inventory. However, the court concluded that McDonald had not acted fraudulently or for her own interest and advantage, and, accordingly, her actions did not warrant removal or surcharge. The court noted that the remedy where the personal representative makes a wrong decision in good faith is not ordinarily removal, but rather intervention by the court to correct the error or, if the error cannot be satisfactorily corrected, to surcharge the personal representative. The probate court further concluded that the personal representative had not acted improperly in selling deceased’s car since it appeared initially that there was not enough money in the estate to pay the funeral expenses.
Based on our review of the record, we find that the probate court did not abuse its discretion in refusing to remove McDonald as personal representative. McDonald appears to have acted in good faith in discharging her statutorily mandated duties as personal representative. We agree that ordinarily the appropriate remedy for mistakes of the sort made here is intervention by the probate court to correct the mistake or, if the error cannot be corrected, surcharge of the personal representative.
We next turn to the question of whether the circuit court correctly determined that the probate court, rather than the circuit court, had jurisdiction over the dispute between plaintiffs and defendants regarding title to the $25,000 and other property.
We first note that the circuit court correctly rejected defendants’ argument that plaintiffs were barred from bringing the action in circuit court by the doctrine of collateral estoppel. Collateral estoppel bars the relitigation of issues previously decided when such issues are raised in a subsequent suit by the same parties based upon a different cause of action. Stolaruk Corp v Dep’t of Transportation, 114 Mich App 357, 361-362; 319 NW2d 581 (1982). Since Barker was not a party to the probate court action, collateral estoppel does not apply. Braxton v Litchalk, 55 Mich App 708, 719; 223 NW2d 316 (1974). Moreover, although the probate court appears to have decided the matter of legal title to the money, that determination was ancillary to the ultimate issue of whether the personal representative should have been removed. Consequently, the issue of title to the money was not fully litigated. Stolaruk, supra, p 362. Furthermore, the probate court specifically declined to rule on the issue of equitable title (constructive trust), thereby inviting further litigation in circuit court on this additional issue.
Although the probate court implied that it did not have jurisdiction to consider an action for imposition of a constructive trust, we note that the probate court clearly does have jurisdiction over the matter. Section 22(j) of the Revised Probate Code provides that the probate court has concurrent jurisdiction "[t]o determine an action or proceeding of a constructive trust”. MCL 700.22(j); MSA 27.5022(j). However, as noted above, the beneficiaries did not seek imposition of a constructive trust over the assets in either proceeding.
Section 21(a) of the Revised Probate Code provides that the probate court has exclusive jurisdiction over "matters relating to the settlement of the estate of a deceased person”. MCL 700.21(a); MSA 27.5021(a). Section 22(l)(a) provides that in addition to the jurisdiction conferred by section 21 and other laws, when ancillary to the settlement of an estate, the probate court has concurrent jurisdiction "[t]o determine the validity of and resolve claims involving title to real and personal property”. MCL 700.22(l)(a); MSA 27.5022(l)(a). The circuit court has original jurisdiction to hear and determine all civil claims and remedies, except where exclusive jurisdiction is given by constitution or statute to another court. MCL 600.605; MSA 27A.605.
The circuit court determined that the probate court had exclusive jurisdiction to determine title to the property. We find it unnecessary to address the issue of whether jurisdiction in this instance is concurrent or exclusive because even if the circuit court has concurrent subject matter jurisdiction, it could not consider the case because of the prior involvement of the probate court. In Schell v Schell, 257 Mich 85, 88-89; 241 NW 223 (1932), the Supreme Court, quoting from earlier cases, held:
" 'It is a familiar principle that when a court of competent jurisdiction has become possessed of a case, its authority continues, subject only to appellate authority, until the matter is finally and completely disposed of; and no court or co-ordinate authority is at liberty to interfere with its action.’
" 'Among courts having concurrent jurisdiction of any given subject-matter the court whose jurisdiction rightfully first attaches shall exercise and continue that jurisdiction free from any interference by any other court having a like jurisdiction.’ ”
Here, the probate court had decided to address the matter of legal title to the money in reaching the ultimate issue of whether the personal representative should be removed. The circuit court was therefore correct in deciding that it would not interfere with the decision made in the prior probate proceeding to address that issue.
Notwithstanding the fact that the probate court addressed the issue of title to the $25,000, we remand the case to the probate court for a hearing on the issue of whether title belongs to plaintiffs or defendants. Plaintiffs should not be held to have lost their entire case based on the probate court’s decision in an ancillary proceeding to remove the personal representative. In the earlier hearing, the parties did not conduct a full hearing on this specific question. Moreover, Barker was not even a party to the probate court action. He should be joined as a necessary party on remand pursuant to MCR 2.205.
In addition, the probate court does not appear to have fully addressed the legal question involved. The probate court simply concluded that the deceased intended to create a joint account. However, that determination does not end the inquiry. The court must also determine whether the deceased intended to vest title in Barker as the survivor. MCL 487.703; MSA 23.303 provides that the creation of a joint account is prima facie evidence of an intention to vest title to the account in the survivor. Similarly, recently approved Standard Jury Instruction 173.02 provides that the deceased must have intended the joint account to become the property of the survivor. See also Kirilloff v Glinisty, 375 Mich 586, 588; 134 NW2d 707 (1965), Richard v Richard, 58 Mich App 660, 662; 228 NW2d 512 (1975).
The decision of the circuit court is affirmed.
The decision of the probate court is affirmed in part, and the case is remanded for further proceedings in accordance with this opinion._
SJI2d 173.02 states:
"The law provides that when a (bank account/credit union account/ savings and loan association account/[_ other]) is in the name of more than one person, providing for payment to either person or to the surviving person, the balance of the money in the account upon the death of either person belongs to and becomes the property of the survivor.
"However, the account does not become the property of the survivor if:
a. (_ name of decedent) did not intend the account to become the property of the survivor, or
b. when the account was opened, (_name of decedent) did not have the mental capacity to know or understand that the account would become the property of the survivor, or
c. (the account was opened/the survivor’s name was added to the account) as a result of fraud, or
d. (the account was opened/the survivor’s name was added to the account) as a result of undue influence.
"The petitioner has the burden of proving that (_name of decedent) did not intend the account to become the property of the survivor/(_ name of decedent) did not have the mental capacity to know or understand that the account would become the property of the survivor/the account was opened as a result of fraud/ the survivor’s name was added to the account as a result of fraud/the account was opened as a result of undue influence/the survivor’s name was added to the account as a result of undue influence).”
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Per Curiam.
Following a bench trial, a judgment of no cause of action was entered in the Macomb County Circuit Court against the plaintiffs in this suit for trademark infringement and unfair competition. Defendant’s counterclaim to restrain plaintiffs from the use of the term "Variety Donuts” was also dismissed. Defendant was granted $10,205.75 in costs pursuant to GCR 1963, 316.7. Plaintiffs now appeal as of right the judgment for defendant and award of costs.
Plaintiffs are owners of the Variety Donut & Coffee Shoppe located in St. Clair Shores, Michigan. From the time the shop was opened in 1964, plaintiffs have used the term "Variety Donuts” to promote their shop and advertise their product. For instance, order forms, receipts, doughnut boxes and the sign outside their store bore the words "Variety Donuts”. The term was also used in answering the shop’s telephone and in advertisements placed in newspapers and other media.
On January 30, 1980, defendant, Dawn Donut Systems, Inc., placed an advertisement in the Detroit Free Press utilizing the term "Variety Donuts” in connection with a promotional sale of their doughnuts at 15 cents each. Plaintiff James Burke contacted Gary Hurand, the defendant’s president, and demanded that defendant cease its use of the term. Mr. Hurand declined the invitation, and the term was used again in subsequent advertising.
On March 18, 1980, plaintiffs filed their complaint in the Macomb County Circuit Court alleging trademark infringement and unfair competition through defendant’s use of the mark "Variety Donuts”. Defendant filed a counterclaim asserting prior use and a superior common-law right to the term. Further, defendant sought exclusive use and appropriation of the term in its "geographical area of expansion”, which defendant defined to include Macomb and surrounding counties.
On May 4, 1981, a mediation hearing was held, which resulted in an evaluation of no cause of action in favor of defendant. The mediation panel did not make a separate finding as to the defendant’s counterclaim, nor was it requested to do so by the parties. The mediation evaluation was accepted by defendant and rejected by the plaintiffs.
The case therefore proceeded to trial, and on December 28, 1982, the trial court issued its opinion. The trial court found that the term "Variety” was commonly used in the trade to describe a type of doughnut which is sold in numerous variations, and thus it concluded that plaintiffs had failed to establish a protectable right to exclusive use of the term "Variety Donuts”. The court also found no evidence of unfair competition. As to defendant’s counterclaim, the trial court granted plaintiffs a judgment of no cause of action on the ground that the term "Variety Donuts” was merely descriptive, thus giving no rise to rights protectable in law or equity.
Subsequent to the issuance of the trial court’s opinion, plaintiffs brought a motion for new trial while defendant moved for entry of judgment and assignment of costs pursuant to GCR 1963, 316, due to the plaintiffs’ failure to obtain a verdict 10% greater than the award of the mediation panel. Several hearings were held to determine the amount of costs awardable to defendant and the reasonableness of the attorney fees claimed, after which total costs in the amount of $10,205.75 were granted to defendant.
On appeal, we first address the plaintiffs’ claim that the trial court erred in finding that the mark "Variety Donuts” was merely descriptive, without a secondary meaning, and thus not protectable. A mark can be characterized as descriptive if it naturally and normally directs attention to the qualities, ingredients, appearance, effect, purpose or other features of the goods or services. 3 Callmann, Unfair Competition, Trademarks & Monopolies, (4th ed), § 18.03, chapter 18, p 7. We must agree with the trial court that the term "Variety Donuts” is merely descriptive. Testimony offered at trial by defendant’s president Gary Hurand revealed that the term is commonly used in the bakery industry to designate the availability of more than one type of doughnut. Hurand also indicated the defendant had long used the term "Variety Donuts”, along with similar usage of "Variety Rolls” and "Variety Breads”. This testimony was corroborated by evidence that the "Variety Donuts” term has been used throughout the state by various bakery companies aside from the defendant. In contrast, the only evidence presented by plaintiffs to support their characterization of the term as a unique mark was plaintiffs’ own statement that they had not seen any other use of the mark prior to 1978. Plaintiffs admitted, however, that they did not attend trade shows or read trade journals.
The evidence presented at trial thus clearly supported the conclusion that in the bakery industry the term sought to be protected by plaintiffs has come to refer to a particular feature of a bakery product, namely, the availability of serveral types of doughnuts. As such, the term is merely descriptive. We must therefore consider whether the trial court erred in concluding that "Variety Donuts” had not developed a secondary meaning through its usage by the plaintiffs.
As explained by this Court in Boron Oil Co v Callanan, 50 Mich App 580; 213 NW2d 836 (1973):
"Words or symbols used in connection with one’s goods, services, or business, or physical attributes of goods, not originally appropriable as a technical trademark or a trade name, are deemed to have acquired a 'secondary meaning’ when they have become associated in the minds of purchasers or customers with the source or origin of goods or services rather than with the goods or services themselves. Armstrong Paint & Varnish v Nu-Enamel Corp, 305 US 315; 59 S Ct 191; 83 L Ed 195 (1938); Barton v Rex-Oil Co, 2 F2d 402; 40 ALR 424 (CA 3, 1924).” 50 Mich App 583.
Among the factors to be considered in determining whether a mark has acquired a secondary meaning are: 1) the length and manner of its uses; 2) the nature and extent of advertising and promotion of the mark; and 3) the efforts made to promote a conscious connection in the mind of the public between the mark and the business. Boron Oil, supra, pp 583-584. Unless the plaintiff successfully established that an association with the source or origin of the goods predominates over the descriptive significance of the trademark, no secondary meaning has been acquired. Steem Electric Corp v Hartzfield-Phillipson Co, 118 F2d 122 (CA 7, 1940).
At trial, plaintiffs established that they had operated under the name "Variety Donuts” since 1964 and had used it for advertising purposes and in sponsoring local sports teams. Plaintiffs also presented five witnesses who testified that the term "Variety Donuts” had come to be associated with plaintiffs’ business. However, each of the witnesses was a regular customer or personal friend of the plaintiffs. Further, three of the witnesses admitted that the term "Variety Donuts” also meant a variety or assortment of donuts. Given the small sampling and relationship of the witnesses to the plaintiffs, we can understand the trial court’s failure to find the evidence persuasive as to the meaning of "Variety Donuts” in the appropriate market area. Further, in light of the strong evidence presented by defendant regarding the general use of the term in the bakery industry and in the advertising of similar products, the trial court’s finding that "Variety Donuts” did not ac quire a secondary meaning in the market area associated with plaintiffs’ business was not clearly erroneous.
Plaintiffs also complain of the trial court’s refusal to permit the introduction of testimony from plaintiff James Burke regarding the practice of his customers to refer to his donuts as "Variety Donuts”. We need not consider the merits of plaintiffs’ argument since, even if in error, the trial court’s exclusion of the evidence could not have been prejudicial. Aside from the fact that plaintiff Kathryn Burke was allowed to testify as to how her customers referred to her product, several of the customers themselves appeared on behalf of the plaintiffs and testified that they referred to the store, although not the product, as "Variety Donuts”. Thus, since the evidence excluded by the trial court was admitted through the testimony of other witnesses, plaintiffs were not prejudiced by the trial court’s ruling.
Plaintiffs’ next assignment of error concerns the trial court’s assessment of costs pursuant to GCR 1963, 316.7(b)(1) due to the failure to obtain a verdict 10% greater than the mediation award. Plaintiffs argue first that GCR 1963, 316 was inapplicable to this case since, under subsection 1(a), the rule is limited to civil cases "in which the relief sought consists of money damages or division of property”. Plaintiffs argue that their request for equitable relief rendered GCR 1963, 316 inapplicable. We disagree. While it is true that plaintiffs sought to enjoin defendant from further use of the mark "Variety Donuts”, they also sought a recovery for damages arising out of the appropriation of the mark. Thus, the requested relief did in fact consist, albeit partially, of money damages. We do not agree that the relief must consist exclusively of money damages before GCR 1963, 316 becomes applicable.
Plaintiffs further assert that Macomb County Local Rule 10, and not GCR 1963, 316, should have been applicable since the evaluation form prepared by the mediation panel stated that costs would be assessed in accordance with local rule 17. Again, we cannot agree. It is obvious that the evaluation form was prepared prior to the Michigan Supreme Court’s adoption of GCR 1963, 316 on May 9, 1980. However, pursuant to GCR 1963, 927.1, any local court rule which conflicts with the provisions of the general court rules is invalid. Since plaintiffs’ construction of local court rule 17 is contrary to our construction of GCR 1963, 316 in that the local rule allegedly prohibits cost assessment in any case in which equitable relief is sought, whether exclusively or not, the local rule would be superseded by GCR 1963, 316. The lack of merit in plaintiffs’ argument is further evidenced by subsection 1(b) of rule 316, which specifically provides for the application of the general court rule to mediation proceedings in all courts other than the circuit court for the third judicial circuit (Wayne County).
We also reject plaintiffs’ argument that defendant waived its right to request an application of the provisions of GCR 1963, 316 for purposes of assessing costs since it did not object to the statement contained on the mediation panel’s evaluation form that local rule 17 would govern. We cannot agree that defendant should be punished for correctly assuming that the trial court would apply the court rules mandated by the Michigan Supreme Court.
Finally, plaintiffs contend that the trial court erroneously awarded costs incurred by the defendant in the pursuit of its counterclaim, contrary to this Court’s decision in Maple Hill Apartment Co v Stine, 131 Mich App 371; 346 NW2d 555 (1984). We find no merit to this argument. As noted in the trial court’s opinion of June 4, 1984, the plaintiffs failed to offer any evidence to rebut the defendant’s representation that none of the costs requested were attributable to the counterclaim. In light of the plaintiffs’ failure to offer rebuttal evidence on this point, we cannot conclude that the trial court’s findings were clearly erroneous. Sweetman v State Highway Dep’t, 137 Mich App 14; 357 NW2d 783 (1984). Therefore, the trial court’s award of $10,205.75 in costs to defendant is affirmed.
Affirmed.
Plaintiffs seek an application of the local rule due to their belief that it prevents the assessment of costs in any case in which equitable relief is sought, whether or not money damages are also requested. We need not decide the validity of this proposition due to our conclusion regarding the applicability of the local rule. | [
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Per Curiam.
Petitioner, Donald R. Kostyu, appeals as of right from an order of the Michigan Tax Tribunal, granting the motion for summary judgment of dismissal filed by respondent, the Michigan Department of Treasury. We affirm.
In a petition filed with the Michigan Tax Tribunal, petitioner sought reimbursement of money withheld from his paycheck by Ford Motor Company pursuant to a Michigan Department of Treasury order. In that order, Ford Motor Company was advised to "disregard all prior and future MIW4’s submitted” and to withhold on the basis of three exemption allowances. Petitioner had claimed to be exempt from withholding. Thereafter, money was withheld by Ford and collected by respondent. The petition alleged that the money was improperly withheld and collected, because respondent acted without jurisdiction and beyond its authority in ordering the withholding.
Petitioner filed a motion for summary judgment pursuant to GCR 1963, 117.2(2), alleging that respondent had failed to set forth a valid defense. Respondent countered with a motion for summary judgment pursuant to Michigan Tax Tribunal Rule 205.1111(3), 1979 AC, R 205.1111(3), which is in accord with GCR 1963, 117.2(1), for failure to state a claim upon which relief could be granted. The Tax Tribunal granted the motion filed by respondent.
Petitioner, in pro per, raises numerous claims of error and grounds for appeal. After reviewing all the matters raised by petitioner, we find that none requires reversal.
The claim of petitioner that respondent did not have authority to order money withheld from petitioner’s paycheck ignores the specific Michigan constitutional authority for the imposition of an income tax. Const 1963, art 9, § 7, as well as the mandates of the Income Tax Act of 1967, MCL 206.1 et seq.; MSA 7.557(101) et seq. We also must reject petitioner’s contention that he is not an employee within the meaning of the act. Petitioner is admittedly employed at Ford Motor Company. "Employee” as defined in § 3401(c) of the Internal Revenue Code, 26 USC 3401(c), quite obviously was intended to adopt the common law meaning of employee. The primary rule of statutory contruction is to ascertain and enforce the legislative intent in enacting the provision. Melia v Employment Security Comm, 346 Mich 544, 562; 78 NW2d 273 (1956). There was clearly no intent in the Income Tax Act to exclude privately employed individuals from the withholding requirements.
Petitioner also claims that he was denied an adequate and timely hearing and was, therefore, deprived of property without due process of law. The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner; Matthews v Eldridge, 424 US 319, 333; 96 S Ct 893; 47 L Ed 2d 18 (1976). The opportunity to be heard does not necessarily mean the presentation of evidence and argument in a full evidentiary setting. In this case, MCL 205.22; MSA 7.657(22) provides that a person aggrieved by an order of respondent may appeal to the Tax Tribunal or to the Court of Claims. Petitioner chose to appeal to the Tax Tribunal in which proceedings must be conducted pursuant to Chapter 4 of the Administrative Procedures Act. MCL 205.726; MSA 7.650(26). Both petitioner and respondent filed motions for summary judgment and responses thereto in the Tax Tribunal. Respondent’s motion, which prevailed, involved only questions of law and resulted in a determination that, as a matter of law, plaintiff had not stated a claim. We find no due process infirmity in this case.
Petitioner has also raised several specific challenges to the constitutionality of the withholding or of the underlying income tax itself. As a general rule, the Legislature’s enactments are clothed with a presumption of constitutionality. People v McQuillan, 392 Mich 511, 536-537; 211 NW2d 569 (1974). This presumption is especially strong where tax legislation is concerned. American Amusement Co, Inc v Dep’t of Treasury, 91 Mich App 573; 283 NW2d 803 (1979), lv den 407 Mich 942 (1979). We have examined each of petitioner’s claims and find that none have merit. In addition, we note that petitioner’s claims regarding legal tender are simply irrelevant. Petitioner’s employer is required by law to withhold taxes. The debt is owed to the government regardless of which type of tender is chosen to be used in payment.
This matter was decided in the Tax Tribunal on a motion for summary judgment for failure to state a cause of action. Such a motion seeks to test the genuineness of a claim or defense by challenging the legal, not the factual, adequacy of pleadings. Abel v Eli Lilly & Co, 418 Mich 311, 323; 343 NW2d 164 (1984), cert den — US —; 105 S Ct 123; 83 L Ed 2d 65 (1984). A reviewing court is obligated to accept as true all well-pled facts and to determine whether a plaintiffs claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Karr v Board of Trustees of Michigan State University, 119 Mich App 1, 3-4; 325 NW2d 605 (1982), lv den 417 Mich 1100.8 (1983). Accepting all petitioner’s well-pled allegations of fact as true, there still were no questions of fact in this case. The Tax Tribunal correctly concluded, as a matter of law, that petitioner had failed to state a claim.
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Per Curiam.
In this appeal by the people we are asked to decide whether the respected trial court erred by declining the prosecution’s motion for a one week continuance of arraignment in circuit court. We answer in the affirmative and reverse.
On October 3, 1983, defendant was charged with armed robbery. Preliminary examination was held in district court on November 2, November 22, and December 16, 1983, and the case was adjuourned for the filing of briefs on a motion brought by defendant. Defendant posted bond and was released from custody on the pending charge.
Decision on defendant’s motion was made on July 10, 1984, and defendant was bound over as charged to circuit court. Arraignment in circuit court was set for July 26, 1984. In June, 1984, defendant, who had been out on bond, was arrested in Macomb County. On the date set for arraignment, all parties except defendant were present. While the Oakland County Sheriffs Department was aware of defendant’s arrest and that a writ had been issued for defendant’s custody in Macomb County, those facts had not been communicated to the prosecution. The assistant prosecutor requested a one week adjournment so that defendant could be returned by habeas corpus to Oakland. Defense counsel objected and asked dismissal of the case. The trial court responded simply: "My reaction is, case dismissed. So ordered.”
The prosecution promptly moved to set aside the order of dismissal. Hearing was held on the motion at which time defense counsel argued that statutes and case law required "arraignment without unnecessary delay”. On August 29, 1984, the trial judge denied the motion, stating:
"Well, the Court is of the opinion that in days gone by the reason for the case law and the statute are that they used to put a respondent on the merry-go-round so his lawyer couldn’t talk to him. Now, I guess it’s so a prosecutor can’t talk to him. But it seems to me that the State for purposes of a criminal case are (sic) one person and the State has an obligation to produce a body at the time and have a prompt arraignment. There was no prompt arraignment.
"The Court is of the opinion that the cause should remain dismissed.”
From an order dismissing the cause "for the failure of the People to arraign defendant in a timely fashion”, plaintiff appeals an of right.
Board discretion is given trial judges in ruling upon motions for continuances. People v Taylor, 110 Mich App 823, 832; 314 NW2d 498 (1981). A trial judge’s decision to deny a continuance will not be overturned absent a clear abuse of discretion. People v Drossart, 99 Mich App 66, 83; 297 NW2d 863 (1980). Older cases adopted the "abuse of discretion” test presecribed for civil cases in Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959). The Spalding standard has been modified for criminal proceedings. People v Charles O Williams, 386 Mich 565, 575; 194 NW2d 337 (1972); People v Merritt, 396 Mich 67, 80-81; 238 NW2d 31 (1976). Those cases employed a weighing of competing interests involved standard. As was stated in Merritt:
"However, even under Williams, whether the choice was an appropriate one varies with the facts of each case, and must inevitably involve a weighing of the competing interests involved. Where the preclusion sanction is involved these issues become: do the possible risk of false testimony and the interruption in the orderly administration of justice justify this intrusion on defendant’s right?
"Obviously, there may be occasions when defendant’s delaying tactics or clear disregard for the rules leave the trial court no other choice. At times, however, perhaps because of late discovery of witnesses despite a diligent search or other circumstances beyond the control of defendant and his or her counsel, the interest of the state in fullest discovery and a fair trial for defendant might well outweigh any negative effects on the trial process.” 396 Mich 82-83. (Emphasis supplied; footnote omitted.)
In the instant case, the trial judge gave no reasons for his ruling of July 26, 1984, dismissing the case. He simply stated: "My reaction is, case dismissed.” Thus, even under the Spalding standard it appears that the ruling was more an exercise of pique than an exercise of discretion. Certainly it is difficult for an appellate court to decide if discretion has been properly exercised when no reasons have been assigned for the decision under review.
However, the trial judge’s ruling on August 29, 1984, following the hearing on the prosecution’s motion to set aside the order of dismissal, was an exercise of discretion. We do not agree with the court’s concusión that "there was no prompt arraignment”. The trial judge’s order dismissing the case "for failure of the People to arraign defendant in a timely fashion” is not supported by precedent. While it is true that the state has an obligation to provide a prompt arraignment, it does not follow that a one week continuance would make the arraignment untimely. Arraignment was acheduled for July 26, 1984, just ten days after defendant was bound over to circuit court. Furthermore, the prosecution had requested no prior delays. Infact, the record discloses that the arraignment was the first time at which the case had been called in circuit court.
Under the balancing standard in Williams, supra, and Merritt, supra, a one week delay would appear justified. There would be no prejudice to the defendant who already was incarcerated in the Macomb County jail. Balanced against that minor inconvenience is the major inconvenience to the state in reinstating the proceedings against the defendant. The preliminary examination had lasted three days, involved the presentation of eight witnesses, and required the briefing of complex issues and the preparation of a transcript. Because of these problems 269 days had elapsed before the defendant had been bound over to the circuit court on the charge. To force the prosecution to repeat this process would result in an obvious waste of judicial resources and inevitably would raise questions concerning defendant’s right to a speedy trial. Indeed, reinstatement of the charges not only would be detrimental to the state, it would be more prejudicial and detrimental to defendant than a one week delay in arraignment.
Although the delay in arraignment was attributable to the prosecutor, bad faith was not involved. Administrative inadvertence on the part of the Oakland County Sheriffs Department which did not inform the prosecutor’s office that defendant was confined in jail in Macomb County was the primary reason for the delay. Finally, we note that no statute prescribes a specific time by which arraignment on the information (as distinguished from trial) must occur. Rather, statutes prescribing the right to a speedy trial govern the time frame. MCL 768.1; MSA 28.1024; US Const, Am VI. Under the stautes and constitution, dismissal for lack of a speedy trial is granted only if trial is unreasonably delayed. People v Collins, 388 Mich 680, 687; 202 NW2d 769 (1972). Nothing in the instant case persuades us that a delay of one week was unreasonable. In fact, a much greater delay will result by dismissal and reinstatement of the charges.
Judgment reversed and the case remanded for reinstatement of the information with instructions to proceed to arraignment.
"The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an 'abuse’ in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but pervisity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.”
In Bosak v Hutchinson, 422 Mich 712, 737; 375 NW2d 333 (1985), the Supreme Court referred to the Spalding standard but arguably diluted its recent endorsement of that standard (see Mar’s v Board of Medicine, 422 Mich 688; 375 NW2d 321 [1985]) by quoting Justice Levin’s concurring opinion in People v Tally, 410 Mich 378, 399; 301 NW2d 809 (1981). The Court thus continues to send out conflicting signals as to that much-criticized standard of appellate review. | [
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Cynar, J.
Respondent Shirley Riffe appeals as of right from the probate court’s order terminating her parental rights in her two minor sons pursuant to MCL 712A.19a(e); MSA 27.3178(598.19a)(e). Respondent Charles L. Riffe has not appealed the order terminating his parental rights. We affirm.
Respondents are the parents of two boys, David Allan Riffe, born in 1983, and Charles L. Riffe, Jr., born in 1982. On August 20, 1984, the Saginaw Valley Department of Social Services (DSS) filed a petition alleging that the probate court had jurisdiction over the minor child David pursuant to MCL 712A.2(b); MSA 27.3178(598.2)(b). On August 24, 1984, a petition was filed alleging that the probate court should exercise jurisdiction over both of the minor children of the parties, Charles, Jr., and David, for the following reasons:
"A. On 05-18-84 David. Allan Riffe was diagnosed a 'failure to thrive’ child.
"B. Said parents failed to bring David in for his scheduled doctor’s appointment on 06-04-84 thereby jeopardizing his health and well-being and also failed to reschedule another appointment with the doctor.
"C. David’s present height and weight measurements are below the chart for normal development.
"D. David’s weight has severely dropped.
"E. On 08-24-84 Charles had a severe urine burn in which both the penis and testicles were red.
"F. On 05-25-80, a petition was filed in Saginaw County Probate Court by Kathryn Morley, alleging that Rosalie Marie McKinnon, said child of Shirley Riffe, was the victim of neglect and, on 07-16-80 Rosalie Marie McKinnon was adjudicated a temporary ward of the Court under neglect jurisdiction and not returned to the care of the mother.”
A temporary order of care was entered for David on September 5, 1984, and he was placed in foster care.
On October 8, 1984, a further petition was filed with respect to Charles, Jr., alleging:
"Said parents neglect to provide proper support and necessary care and said child is deprived of his emotional well-being.
"A. On 10-06-84 a physical confrontation occurred within the home over how said child should be disciplined, thereby placing the child in danger.
"B. On 10-06-84 said child was found wearing extremely dirty clothing and had very poor personal hygiene.
"Said home by reason of cruelty is an unfit place for said child to live in.
"C. On 10-06-84 Charles, Jr. was found to have old bruises and fresh welts on the buttocks, lower back, and upper thighs.
An order of temporary care was entered on Octo-ber 8, 1984, placing Charles, Jr., in the care and custody of the Saginaw Child Receiving Home and he too was eventually placed in foster care.
A hearing was held in probate court on November 28, 1984, on the various petitions. A tentative agreement had been worked out between DSS and the respondents whereby the department would recommend that the probate court take temporary wardship of both children if respondent Shirley Riffe would enter into a parenting agreement with the department with the understanding that she would eventually be allowed to regain custody of the children if her situation improved. Respondent father pleaded no contest to the charges and indi cated he would give up any rights he had in the children. Respondent mother indicated, however, that some of the allegations in the petition were false and that she desired to go to trial. At that point, counsel for respondent Charles Riffe pointed out to the court that he had originally represented both parties. Separate counsel had been subsequently appointed for respondent Shirley Riffe because she and respondent Charles Riffe had separated. Counsel for respondent Charles Riffe was allowed to withdraw because of the potential conflict of interest. Therefore, because respondent Charles Riffe was without counsel, the hearing was adjourned to a later date.
The hearing resumed January 22, 1985, with new counsel representing Charles Riffe. As a preliminary matter, counsel for respondent Shirley Riffe moved to strike allegation (F) of the first petition which alleged that a daugther of Shirley Riffe, Rosalie Marie McKinnon, had been made a temporary ward of the court on July 16, 1980, under neglect jurisdiction and had not been returned to the care of her mother. The trial court •ruled that allegations of prior neglect of other children of a parent are properly considered by a trial court in neglect cases. The court then proceeded with the adjudicative phase of the juvenile hearing.
Respondent Charles Riffe admitted allegations (A) through (F) of the August 24, 1984, petition and allegations (A) and (B) of the petition filed on November 8, 1984. However, as respondent Shirley Riffe continued to contest the truth of the allegations, several witnesses were called.
Dr. David Booth testified that David, diagnosed as a failure-to-thrive child, had been scheduled for an office visit with him on June 4, 1984, but the appointment had not been kept. When he finally saw 10-month-old David on August 13, 1984, his height and weight were below the 5th percentile and he had received none of the appropriate immunizations normally administered to children. From August 13 to September 19, 1984, David was resident of the child receiving home. Dr. Booth saw David again on September 19, 1984. During the intervening period, David had gained two pounds, 10 ounces, and his weight was at or slightly above the 5th percentile and his height slightly below that percentile. When last seen by Dr. Booth on January 17, 1985, David’s weight had increased to the 10th percentile and his height to the 25th percentile. The increases indicated to Dr. Booth that originally David’s growth was not within the normal growth range for David, and that since his placement in a more nurturing environment of a foster home he had done extraordinarily well. Dr. Booth concluded that David’s failure to thrive was the result of a poor home situation and that a combination of emotional and physical neglect had been responsible for David’s failure to thrive.
Officer Cheryl Courtney, a member of the Saginaw Township Police Department, testified that on October 6, 1984, she and two other officers were dispatched to the Riffe home to handle a family dispute. Respondent Charles Riffe and his half-brother David Ozark had been in a fight, apparently because Ozark objected to the way respondent Charles had disciplined Charles, Jr., age 15 months. Both respondents were living in the home along with Joanne Edwards, respondent Charles Riffe’s girlfriend, David Ozark, respondent Shirley Riffe’s boyfriend, and Lea McKinnon, respondent Shirley Riffe’s mother. Officer Courtney testified that Charles, Jr., was bruised and dirty, especially his feet, and all parties, including respondents, agreed that Charles, Jr., would be better off if he were removed from the home. Officer Courtney took the child to Saginaw General Hospital for treatment and made arrangements with probate court officials to take Charles, Jr., to Saginaw County Child Receiving Home.
Dr. Clare Johnson testified that he treated Charles, Jr., at Saginaw General Hospital after he was brought to the hospital by police officers. He reported that Charles, Jr., had several fresh bruises across the buttocks area as well as some older bruises in the same area and on the top portion of the buttocks. The child was not "awfully dirty” when treated, but rather "medium dirty”.
Rita Brown, a registered nurse at Saginaw County Child Receiving Home, examined Charles, Jr., on August 21, 1984, the day after he had been removed from the Riffe home. She reported that he had a diaper rash, a rash under his neck and chin, was below weight and length for his age, and had low hemoglobin. She also reported that Charles, Jr., gained three-quarters of a pound in two days and that when he left on August 29, the rash had cleared up.
Marilyn Schreiner, an employee at Mid-Michigan Child Care Center at the First Congregational Church, testified that David came to the center on July 23, 1984. At that time he was 14 months of age. He attended the center for less than a month, only once or twice each week. However, he was so dirty when he first arrived that she bathed him. On July 23, she sent a new bottle home for him since the one he had brought was "black” and the nipple was wrapped with hair, and "there was green slime all over the nipple”. She occasionally saw Charles, Jr., who was kept cleaner than David. On August 24, 1984, she observed that David’s genital area was covered with a urine burn "like he had been in a Pamper maybe all weekend because he was so raw”.
Respondent Shirley Riffe testified that she regularly fed David three meals a day and that she never beat him. However, she objected to the way respondent Charles Riffe disciplined Charles, Jr., although she was afraid to do anything about it for fear he would hit her and place her in the hospital, as he had done in the past. Neither of the parties worked, and their daily routine was to split up the care of the children, respondent Charles Riffe being primarily responsible for the care of Charles, Jr., and respondent Shirley Riffe being primarily responsible for the care of David. Respondent Shirley Riffe testified that the responsibility was split up so that respondent Charles Riffe had more responsibility for the care of Charles, Jr., because taking care of two children was too much for her to handle and because she was trying to learn how to care for the younger child.
David Ozark, the boyfriend of Shirley Riffe, testified that the mother took care of David and that respondent Charles Riffe cared for Charles, Jr. He testified that respondent Shirley Riffe fed the children three times a day when they had money for food. He related the details of the fight he and respondent Charles Riffe had had concerning respondent Charles Riffe’s excessive disciplining of Charles, Jr., and that respondent Shirley Riffe was able to care for the two children.
Lea McKinnon testified that she lived with respondent Charles Riffe, his girlfriend Joanne Edwards, her daughter Shirley, and her two grandsons, and that respondent Shirley Riffe fed the children three times a day. A friend of the respondents, Christie Reinhard, also testified that respondent Shirley Riffe regularly fed the children.
Respondent Charles Riffe contested only allega tion (C) of the second petition. He testified that the old bruises on Charles, Jr.’s lower back and buttocks were the result of the child’s attempting to "break dance” and falling on the floor or a toy. He and respondent Shirley Riffe had decided to divide the responsibility of the children between themselves because they might get divorced. He claimed that respondent Shirley Riffe did not regularly feed David three meals a day. He also indicated that the children would be better off if they were adopted.
After reviewing the testimony, the probate judge determined that the DSS had met its burden of proving each allegation, as amended, by a preponderance of the evidence, and that the allegations were sufficient to bring both David and Charles, Jr., within the jurisdiction of the probate court.
The dispositional phase of the proceeding was conducted February 6, 1985, approximately two weeks after the adjudicative phase. Laura Patterson, a psychologist with Saginaw Psychological Services, testified that respondent Shirley Riffe refused to submit to psychological testing, although it had been scheduled on two separate occasions. The first time, she failed to show up for her appointment, and the second time, she refused to submit to the testing unless she could consult with her lawyer after she found out that the test results could be used in court. Ms. Patterson attempted to contact respondent’s attorney, but was unsuccessful.
John Szott, a protective services case worker for the DSS, testified that he initiated the investigation of the Riffe children after being informed by Dr. Booth’s office that David Riffe had been diagnosed as a failure-to-thrive child. He recommended that both children be made permanent wards of the court and be placed for adoption. This differed from his earlier recommendation that the children be placed in a temporary wardship. He stated six reasons for recommending that the children be made permanent wards of the probate court: (1) Over the course of his involvement with both Charles and Shirley Riffe, there was little effort on either parent’s part to improve their situation or to make an attempt to regain custody of the children. (2) Visitations by the parents were very irregular since August; visitations were scheduled, but not kept, and there were long periods of time with no visitation. (3) Both parents have limited mental functioning. (4) The parents have failed to cooperate in submitting to a psychological evaluation so as to better assist the DSS. (5) The general level of both parents’ parenting skills is poor. (6) Respondent father has indicated that he intends to terminate his rights in both children and place them for adoption and that both children are at an ideal age where they could easily be placed on a permanent basis.
Szott indicated he had changed his recommendation from temporary to permanent wardship because of the long pattern of neglect, because Shirley Riffe had made very little effort to improve her situation in spite of her recent signing up for parenting classes, and because Shirley Riffe’s visitation with the children was very irregular. He also indicated that the children were young and at an easily-adoptable age and that he felt that adoption was in the children’s best interest. Szott testified that both respondents had been the victims of neglect as children and that respondent Shirley Riffe was also a victim of sexual abuse as a young girl. The department had attempted to have both respondents evaluated and had attempted to get both parents to attend parenting classes, but to no avail. The home respondents lived in at the time the children were made temporary wards was dirty, cluttered, and disorganized. Szott described the apartment Shirley Rifle currently resided in with Ozark and her mother as not dirty, appropriately maintained, and not cluttered.
Respondent Shirley Rifle testified that she believed it would take about two weeks of classes for her to become a good parent.
All counsel stipulated that the probate court could take judicial notice of the probate file of Rosalie McKinnon, the daugther of respondent Shirley Rifle.
The court concluded in a lengthy opinion that there was a sufficient basis by clear and convincing evidence to support the termination of the respondents’ parental rights and that the best interests of the children warrant and mandate termination.
The respondent (hereinafter, "respondent” refers to appellant Shirley Rifle) submits two issues for our consideration. First, the respondent contends that the probate court did not use the correct burden of proof standard in assuming jurisdiction. We disagree.
The probate court cannot consider termination of parental rights without first properly establishing jurisdiction. In the Matter of Taurus F, 415 Mich 512, 526; 330 NW2d 33 (1982).
Proceedings in juvenile court are of two general types: adjudicative and dispositional. JCR 1969, 8.1 and 8.3 [now MCR 5.908(A) and 5.908(C)] describe the two types of proceedings:
"(A) Adjudicative Phase. The adjudicative phase determines whether the child comes within the court’s jurisdiction under MCLA 712A.1 et seq.; MSA 27.3178(598.1) et seq., as alleged in the petition. There is a right to jury trial.
"(B) Dispositional Phase. The dispositional phase determines measures to be taken by the court with respect to the child and adults properly within its jurisdiction if the court has determined at the adjudicative phase that the child comes within the statute. There is no right to jury trial.” JCR 1969 8.1. 403 Mich lxvi.
The admissibility of evidence and the standard of proof vary according to the type of proceeding involved.
"(A) Adjudicative Phase. Absent a valid plea in confession, only competent, relevant, and material evidence is admissible at the adjudicative phase. In a case involving an offense by a child, the rules of evidence for a criminal proceeding and the standard of proof beyond a reasonable doubt apply. In a case involving an offense against a child, the rules of evidence for civil proceeding and the standard of proof by a preponderance of the evidence apply. -
"(B) Dispositional Phase. In the dispositional phase only relevant and material evidence may be considered. Clear and convincing evidence is required to terminate parental rights.” JCR 1969, 8.3. 403 Mich lxvii. (Emphasis added.)
The probate court assumed jurisdiction after finding by a preponderance of the evidence that the material allegations in the petitions were true. It is argued that reliance on the preponderance of the evidence standard was error. Respondent, relying on In the Matter of Kurzawa, 95 Mich App 346; 290 NW2d 431 (1980), contends that the probate court could only assume jurisdiction using a "clear and convincing evidence” standard. The Kurzawa Court stated that "[t]he state carries the burden of proving the need for the court’s exercising jurisdiction by clear and convincing evidence”. 95 Mich App 354. As authority, the Kurzawa Court cited In the Matter of LaFlure, 48 Mich App 377; 210 NW2d 482 (1973), lv den 390 Mich 814 (1973), and JCR 1969, 8.3(B) [now MCR 5.908(C)].
We believe that this Court’s reliance on In the Matter of LaFlure and JCR 8.3(B) in Kurzawa, for the proposition that the state carries the burden of proving the need for the court’s exercising jurisdiction by clear and convincing evidence, was incorrect. The court rule clearly states that during the adjudicative phase the court determines whether or not the child comes within the court’s jurisdiction, and that the burden of proof is that of a preponderance of the evidence. A close reading of In the Matter of LaFlure reveals that in that case this Court was concerned with the dispositional phase, in which the court rule clearly provides that the state must prove by clear and convincing evidence that termination is warranted. See also In the Matter of Campbell, 129 Mich App 780, 785; 342 NW2d 607 (1983).
It is also noted that in Kurzawa the parents of the minor child initially sought the resources available through DSS to help their problem child. The factual allegations by the Kurzawas in their initial petition referred to the delinquency provisions of the probate code and not the neglect portions. Jurisdiction under the statute must be based on evidence of parental neglect and not on delinquency. Neither the initial nor later petitions alleged any neglect by the Kurzawas. Since the Kurzawa Court held that the probate court erred in assuming jurisdiction and therefore the proceedings were void ab initio, determining the burden of proof standard in exercising jurisdiction to be clear and convincing evidence was unnecessary in that case.
The respondent also contends that the petitioner did not prove by clear and convincing evidence that the termination of parental rights was warranted. We disagree.
The appropriate standard of review in cases involving termination of parental rights is whether the findings of the probate court are clearly erroneous. In re Cornet, 422 Mich 274, 277; 373 NW2d 536 (1985). A finding is "clearly erroneous” when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made. Mazur v Blendea, 413 Mich 540, 547; 321 NW2d 376 (1982); Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976).
The statute pursuant to which the trial court terminated respondent’s parental rights is MCL 712A.19a(e); MSA 27.3178(598.19a)(e). Section 19a(e) reads in relevant part as follows:
"Sec. 19a. Where a child remains in foster care in the temporary custody of the court following the initial hearing provided by section 19, the court may make a final determination and order placing the child in the permanent custody of the court, if it finds any of the following:
"(e) The parent or guardian is unable to provide a fit home for the child by reason of neglect.”
The state bears the burden of proving by clear and convincing evidence that termination of parental rights is warranted. JCR 1969, 8.3(B) [now MCR 5.908(C)(2)], In the Matter of Bidwell, 129 Mich App 499, 504; 342 NW2d 82 (1983); In the Matter of LaFlure, supra.
Although the amount of neglect necessary to justify termination of parental rights under section 19a(e) is not capable of precise or exact defini tion, the entry of an order taking permanent custody due to neglect must be based upon testimony of such a nature as to establish or seriously threaten neglect of the child for the long-run future. Fritts v Krugh, 354 Mich 97, 114; 92 NW2d 604 (1958); In the Matter of Bidwell, supra, p 505. The proper standard is whether the parent has been shown by clear and convincing evidence to be unfit and unable to become fit within a reasonable period of time. MCL 712A.19a; MSA 27.3178(598a); In the Matter of Atkins, 112 Mich App 528, 541; 316 NW2d 477 (1982), lv den 413 Mich 912 (1982).
After reviewing the record of the instant proceeding, we are not left with a definite and firm conviction that the trial court made a mistake in terminating the parental rights of respondent Shirley Riffe. The minor child David was removed from the home after being diagnosed by a physician as being a failure-to-thrive child. The minor child Charles, Jr., was removed from the home as a result of a police call to the family home wherein his father and mother’s boyfriend were engaged in a fistfight over the father’s disciplining of the child. At that point Charles, Jr., was bruised and dirty and was removed from the home.
Another child of respondent Shirley Riffe, Rosalie McKinnon, had been made a temporary ward of the court in 1980. At that time, respondent Shirley Riffe submitted herself to psychological evaluation, and attempts were made at counseling to improve respondent’s parenting skills. Eventually, however, the DSS recommended that Rosalie be placed with the father. In 1982, the child was discharged from probate jurisdiction, with permanent custody in the father’s care. With respect to the father’s care of Rosalie, the psychological report indicated that respondent "will most likely always be a minimal parent, without mental ability to change”.
When difficulties arose with the care of Charles, Jr., and David, the DSS provided respondent with the opportunity to submit to psychological testing and counseling. Respondent Shirley Riffe refused to submit to psychological testing and signed up for parenting classes only a week before the final dispositional hearing was scheduled. When asked how long she felt she should attend parenting classes in order to become a fit parent, she responded it would take her "about two weeks”. She also testified that the parties had split up the care of the children partially because taking care of two children was too much for her to handle.
The trial court found that the mother has a long history of neglectful behavior toward her children and that she has done very little to improve her parenting skills. We believe that the state met its burden of proving by clear and convincing evidence that the children were subjects of continuing neglect and that there is every indication that the pattern of neglectful behavior will continue and will not be remedied at any time in the foreseeable future. Therefore, the decision of the trial court that the children must be removed from the parental home and that respondent’s parental rights be terminated permanently is not clearly erroneous.
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Per Curiam.
Claimant appeals as of right from a circuit court opinion and order which affirmed a decision of the Michigan Employment Security Commission Board of Review, denying claimant’s application for unemployment benefits following his discharge by the respondent, the University of Michigan.
Claimant was employed as a custodian by respondent from September 7, 1978, through June 8, 1981. Evidence admitted in a hearing before a referee established that on June 4 or 5, 1981, claimant informed his supervisor that he was going to the doctor. The supervisor told claimant to "get back to her” with the results of his visit. Claimant failed to do so, and, in fact, did not contact his supervisor to inform her of his whereabouts for several days. Claimant’s supervisor was unable to locate claimant through his girlfriend until approximately June 9, 1981, at which time the girlfriend informed the supervisor that claimant was hospitalized under the care of a particular doctor. The supervisor’s attempts to speak to the doctor were unsuccessful because the doctor would not discuss his patient’s condition. At the hearing, respondent presented a letter purportedly written by a therapist at the hospital, on hospital stationery, which stated that claimant was admitted on June 9, 1981, for the treatment of alcoholism. Both claimant and claimant’s supervisor testified that the supervisor was aware of claimant’s alcoholism prior to June 5, 1981. Finally, claimant testified that he could not recall what he had done from June 5, 1981, until June 9, 1981, because he had had an alcoholic blackout. He stated that a friend of his had discovered him where he had been living in his truck. Claimant was terminated from his employment for failure to "call or show up for work for 3 consecutive days”, an employment requirement. On the basis of this evidence, the hearing referee concluded that the claimant’s "separation was in fact an involuntary leaving due to the claimant’s illness concerning alcoholism, and the claimant’s separation should be considered under Section 29(l)(a) of the Act, the voluntary leaving section of the Michigan Employment Security Act”. The referee further concluded that claimant’s actions constituted an "involuntary act” and so could not be considered to be disqualifying misconduct.
Respondent appealed from this decision to the MESC Board of Review. After reviewing the record and the referee’s findings of fact and conclusions of law, the Board of Review reversed, stating,
"There are no proofs in this record other than claimant’s unsupported testimony that his absences where due to alcoholism. A letter sumitted by the claimant, as establishing this fact is not adequately «identified as to the author, or the claimant’s allegation that this condition existed.
"The failure of the claimant to report for work, and his further failure to contact the employer, as required, to advise of the reasons for his continued absence show the kind of wilful disregard of the employer’s interests which have regularly been held to constitute misconduct under the Act.”
Claimant, in turn, appealed from this decision to the circuit court. The circuit court affirmed the decision of the Board of Review, finding that that decision was not contrary to law and that it was supported by competent, material, and substantial evidence because, "[t]here is no creditable proof as to why he did not report to his employer the reason that he would not be to work or that he was going into the hospital”.
On appeal from the circuit court’s opinion and order, claimant argues that the circuit court misapplied the standard of review by failing to consider evidence which contradicted the Board of Review’s findings of fact and by according no weight to the referee’s credibility determinations. While we agree that this did occur, we believe that a more fundamental error of law occurred at both the Board of Review and circuit court stages of this inquiry. Contrary to the Board of Review’s finding, the letter from the therapist at claimant’s hospital was not submitted by claimant, but rather by the respondent. In addition, even had claimant submitted the letter, we find that the letter was entitled to be given probative effect by the referee, as it was "evidence of a type commonly relied upon by reasonably prudent men in the conduct of their affairs”. The letter was signed by the therapist and was written on hospital stationery. Fi nally, we note that no objection was raised to the submission of the letter at the hearing. In addition, even without the letter in support of his position, claimant’s testimony, if believed, constituted proof of his alcoholic blackout. We do not believe that either the Board of Review or the circuit court adequately considered the implicit finding of credibility made by the referee:
"We do not require that the examiner’s findings be given more weight than in reason and in light of judicial experience they deserve. The 'substantial evidence’ standard is not modified in any way when the Board and its examiner disagree. We intend only to recognize that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board’s than when he has reached the same conclusion. The ñndings of the examiner are to be considered along with the consistency and inherent probability of testimony. The signiñcance of his report, of course, depends largely on the importance of credibility in the particular case. To give it this significance does not seem to us materially more difficult than to heed the other factors which in sum determine whether evidence is 'substantial’.” (Emphasis supplied.) Michigan Employment Relations Comm v Detroit Symphony Orchestra, Inc, 393 Mich 116, 127; 223 NW2d 283 (1974), adopting the language of Universal Camera Corp v National Labor Relations Borad, 340 US 474; 71 S Ct 456; 95 L Ed 2d 456 (1951).
Under the circumstances of this case, we find that the proper remedy is to remand to the Board of Review so that the Board may review the evidence in the proper light. We do not retain jurisdiction. In light of this disposition, we need not review respondent’s "last straw” doctrine argument.
Reversed and remanded to the MESC Board of Review for proceedings consistent with this opinion. | [
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Shepherd, J.
The defendant was charged with third-degree criminal sexual conduct (CSC), MCL 750.520d(l)(b); MSA 28.788(4)(l)(b), and bound over to the circuit court on fourth-degree CSC, MCL 750.520(e)(1)(b); MSA 28.788(5)(l)(b), at the conclu sion of his preliminary examination. Defendant appealed the magistrate’s decision to bind him over by bringing a motion to quash in the circuit court. The prosecutor filed a complaint for superintending control in the circuit court against the district court and filed a cross-appeal from the magistrate’s decision binding the defendant over on fourth-degree CSC instead of third-degree CSC. After a hearing on the merits of the prosecution’s complaint and defendant’s motion, the circuit court issued a writ of superintending control which ordered the district court judge to bind the defendant over on third-degree CSC. The district court subsequently bound defendant over on third-degree CSC. We granted defendant’s application for leave to consider the merits of the case and do not consider, whether the prosecution should have proceeded in the circuit court by way of superintending control or appeal as of right. We affirm the circuit court’s order on the merits.
I
At the preliminary examination the complainant testified that after she went to the Calumet homecoming game on the evening in question, she went to a party in Ahmeek, Michigan. Defendant was at the party and offered the complainant a ride home, which she accepted. After leaving the party at midnight, the defendant took complainant to see a home that he was building in Laurium. He then told the complainant that he had to stop at his parents’ motel in Lake Linden. After they arrived, defendant invited complainant into his motel room for a minute. She sat on the bed and watched television while the defendant went to the bathroom. Defendant returned and sat on the bed with complainant and put his arm around her waist and pulled her down onto the bed. While on top of her, defendant removed her blue jeans and panties. Complainant initially testified that she was too scared to say anything. She later testified that, as defendant was removing her pants, she told him that she did not want to do anything. According to complainant, defendant removed his own clothes while he was on top of her. Complainant gave conflicting testimony on whether the defendant removed her jacket and whether the defendant exposed her breasts. Initially, she testified that the defendant had not removed her jacket and had not exposed her breasts. Later, she testified that the defendant had removed her jacket and that the defendant had pushed her shirt and bra up over her breasts and had fondled her breasts. Complainant unequivocally testified that penetration occurred. She explained that she did not try to get away because she was frigthened, but that she did cry during the incident.
The magistrate gave the following reasons for binding defendant over to the circuit court on fourth-degree CSC rather than third-degree CSC:
"Here, of course, the People do not have the burden of proof that they do at a trial, where, of course, the proof must be beyond reasonable doubt. Now, of course, the defendant is charged with criminal sexual conduct in the third degree and the statute, of course, provides that if a person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and if any of the following circumstances exists. Well a, of course, the victim in this case was over sixteen years of age. Then we come to b, that force or coercion is used to accomplish the sexual penetration, and of course force and coercion includes but is not limited to any of the circumstances listed in section 520b, If i 25 [sic]. Now taking all the evidence and all the circumstances and all the inferences to be derived therefrom, the Court finds that the People have failed to meet their burden of proof that the crime known as third degree criminal sexual conduct was committed. However, the Court does find that the People have provided a crime not [sic] cognizable by this Court in that there is, that the crime of fourth degree criminal sexual conduct was committed and that there is probable cause to believe that the defendant committed it. Accordingly, I must bind the defendant over to the next term of the Houghton County Circuit Court on the charge of fourth degree criminal sexual conduct because there is considerable evidence in this case as to the fondling of the breasts and other portions of the body to put it within the fourth degree.”
II
Defendant first argues that the magistrate did not abuse his discretion in binding defendant over to the circuit court on fourth-degree CSC rather than third-degree CSC.
An examining magistrate’s function is to determine whether a crime has been committed and whether there is probable cause for charging the defendant with that crime. MCL 766.13; MSA 28.931. In making this determination, the magistrate has a duty to pass judgment not only on the weight and competency of the evidence, but also on the credibility of the witnesses. People v Paille #2, 383 Mich 621, 627; 178 NW2d 465 (1970); People v Talley, 410 Mich 378; 301 NW2d 809 (1981). The inquiry is not limited to a determination that the prosecution has presented evidence on each element. Rather, the magistrate must examine the whole matter and be satisfied that there is sufficient evidence to show that the crime was committed and to establish probable cause to believe defendant committed it. People v King, 412 Mich 145, 154; 312 NW2d 629 (1981). The magistrate "should not, however, discharge 'when evidence conflicts or raises reasonable doubt of [the defendant’s] guilt’, since that presents the classic issue for the trier of fact”. King, supra, pp 153-154.
"The object of a preliminary examination is not to prove guilt or innocence beyond a reasonable doubt, nor should a magistrate discharge a defendant when evidence conflicts or raises reasonable doubt of his guilt; such questions should be left for the jury upon the trial. People v Medley, 339 Mich 486; 64 NW2d 708 (1954).” People v Doss, 406 Mich 90, 103; 276 NW2d 9 (1979).
Fourth-degree CSC requires proof of sexual contact accomplished with force or coercion, or knowledge that the victim is mentally incapable, mentally incapacitated or physically helpless. MCL 750.520e; MSA 28.788(5). Under the facts of this case, the only difference between fourth-degree CSC and third-degree CSC is the element of penetration required to prove third-degree CSC. The element of force or coercion in this case is identical for both offenses. MCL 750.520b(l)(f)(i) and (ii); MSA 28.788(2)(l)(f)(i) and (ii).
We note that there are three possible interpretations of the magistrate’s ruling. Defendant argues that the magistrate bound defendant over on fourth-degree CSC because he disbelieved the victim’s testimony that the defendant had actually committed penetration. On the other hand, the prosecution argues that the magistrate incorrectly, found that the force or coercion element of third-degree CSC is different than the force or coercion necessary to commit fourth-degree CSC. In addition, we note that the bindover order itself lists MCL 750.520e(l)(b); MSA 28.788(5)(l)(b), which is sexual contact accomplished with knowledge that the victim was mentally incapacitated or physically helpless, rather than MCL 750.520e(l)(a); MSA 28.788(5)(l)(a), which is sexual contact accomplished with force or coercion.
We agree with the prosecution that if the magistrate based his ruling on the incorrect premise that the force or coercion necessary to establish third-degree CSC is different than that necessary to establish fourth-degree CSC, then the magistrate abused his discretion in binding defendant over on the lesser offense. The same can be said if the magistrate bound defendant over on subparagraph (b) (sexual contact accomplished with knowledge of victim’s mental or physical incapacity), since that element, like force or coercion, is also present in third-degree CSC. In any event, complainant’s own testimony at the preliminary examination precludes as a matter of law any finding that she was mentally incapable, mentally incapacitated or physically helpless as defined in MCL 750.520a; MSA 28.788(1).
The possibility that the magistrate found that sexual conduct short of penetration had occurred through force or coercion presents a more difficult question but we nevertheless hold that a ruling on that basis would also be an abuse of discretion. In order to arrive at this conclusion, the magistrate would have had to disbelieve the complainant’s unequivocal testimony that penetration had occurred, while at the same time believing her testimony that sexual contact had occurred through force or coercion. Since the magistrate apparently found that the complainant was a credible witness, her testimony raised a question as to defendant’s guilt and that question is properly one for the trier of fact. Doss, supra.
The circuit court properly found a clear abuse of discretion.
Ill
Defendant also argues that the prosecution failed to show probable cause to believe that the essential element of force or coercion was present. Without this element bindover on either third-degree or fourth-degree CSC would not have been proper. For the purposes of this case, force or coercion includes, but is not limited to, situations where the actor overcomes the victim through the actual application of physical force or physical violence, or where the actor forces the victim to submit by threatening to use force or violence and the victim believes the actor has the present ability to execute the threat. MCL 750.520b(l)(f); MSA 28.788(2)(l)(f).
Here, although the complainant testified that defendant had not used force or threats to remove her clothing, she did testify that he held her down and was on top of her when he undressed her. She also testified that she told defendant she did not want "to do it” and cried during the incident. She further testified that she was too frigthened to resist defendant because he was stronger than she was. Furthermore, the evidence reveals that the complainant was only 16 years old and defendant was 22 or 23 years old.
Assuming that the magistrate did intend to bind defendant over on MCL 750.520e(l)(a); MSA 28.788(5)(l)(a) and not MCL 750.520e(l)(b); MSA 28.788(5)(l)(b), we conclude that the magistrate did not abuse his discretion in finding force or coercion. Compare People v Jansson, 116 Mich App 674, 685; 323 NW2d 508 (1982); People v McGill, 131 Mich App 465; 346 NW2d 572 (1984).
IV
Defendant next argues that the magistrate deprived him of his Sixth Amendment right of confrontation by limiting cross-examination of complainant into certain areas pursuant to the rape-shield statute, MCL 750.520j(l); MSA 28.788(10X1). Defendant also argues that the rape-shield statute does not apply to preliminary examinations.
The statute provides:
"(1) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:
"(a) Evidence of the victim’s past sexual conduct with the actor.
"(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.
"(2) If the defendant proposes to offer evidence described in subsection (l)(a) or (b), the defendant within 10 days after the arraignment on the information shall file a written motion and offer of proof. The court may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1). If new information is discovered during the course of the trial that may make the evidence described in subsection (l)(a) or (b) admissible, the judge may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1).” (Emphasis added.)
Although the rape-shield statute does not appear on its face to apply to preliminary examinations, the Michigan Rules of Evidence contain parallel provisions which do apply. MRE 101, 1101. MRE 401 and 402 allow the admission of evidence when it is relevant. Evidence is relevant when it has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. MRE 404(a) provides:
"Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
"(3) * * * In a prosecution for criminal sexual conduct, evidence of the victim’s past sexual conduct with the defendant and evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease; * * *.” (Emphasis added.)
"[T]he Sixth Amendment right to confrontation requires only that the defendant be permitted to introduce relevant and admissible evidence.” People v Hackett, 421 Mich 338, 354; 365 NW2d 120 (1984). Ordinarily a complainant’s reputation for unchastity or her past sexual conduct with third persons is irrelevant and inadmissible to show consent. Hackett, supra, p 355.
In this case, the defendant sought to cross-examine the victim on two issues. The defendant began his inquiry by asking the court to allow him to ask the victim about her past sexual experience. The defendant wished to show "this was not an unusual experience for her [the victim] and this was something which she did have some knowledge of how to handle because she’d handled it in the past”. The district judge properly refused to allow the defendant to question the victim on her past sexual experiences. The victim’s past sexual expe rience was irrelevant. MRE 404(a)(3). A woman’s previous consent to sexual relations with others is not relevant to establish that she consented to intercourse with the defendant. Moreover, it is not relevant to impeach the victim’s credibility as a witness inasmuch as evidence of a woman’s chastity has nothing to do with her propensity for lying. Hackett, supra, p 352.
Defendant then desired to know when the complainant had allegedly filed another CSC charge against another person in another county. Defendant claimed "that that would be demonstrative of her state of mind and of her willingness to involve herself in the kind of conduct that occurred here”. In Hackett, supra, p 348, the Supreme Court mentioned that a defendant should be allowed to show that the complainant had made false accusations of rape in the past. There was no argument here that the complainant’s alleged CSC charge against another person was falsely made and, therefore, we conclude that this evidence was not relevant and was properly excluded by the magistrate under MRE 404(a). However, our ruling here does not preclude defendant from seeking an in camera hearing under the rape-shield statute in the circuit court to determine whether the complainant had made false accusations of rape against a third person.
It appears that the complainant may have been pregnant at the preliminary examination which was held more than one year after the alleged incident. The defendant wished to cross-examine the victim on out-of-court statements which she had allegedly made that the child which she was carrying was the defendant’s. Again, this evidence was properly excluded under MRE 404(a) because it did not show past sexual conduct with the defendant but instead showed conduct which took place long after the rape. Moreover, although the statement purported to show the source of pregnancy, that pregnancy was not the result of the CSC at issue and, therefore, was irrelevant.
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