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Per Curiam.
The trial court granted summary disposition to defendants with regard to plaintiffs claims, which included a shareholder derivative claim and a breach of employment contract claim. Subsequently, the trial court granted defendant Capitol Bancoip, Ltd. (Capitol), sanctions against both plaintiff and his counsel, and granted defendants Joseph Reid and Lee Hendrickson sanctions against plaintiff. Plaintiff appeals as of right, and we affirm in part, reverse in part, and remand for further proceedings.
Plaintiff first argues that the trial court should not have granted summary disposition of his claims against defendant Access BIDCO, Inc. (Access). We disagree. The trial court properly held that plaintiff, a member of Access’ board of directors, was estopped from challenging transactions that he approved at meetings of the board of directors. A shareholder who acquiesces or participates in a corporate transaction may not later challenge the validity of the transaction in court. Burch v Norton Hotel Co, 261 Mich 311; 246 NW 131 (1933). Plaintiff was a minority shareholder and a director of Access during all but one of the transactions he now challenges, and he conceded that he voted in favor of provisions that allowed the transactions to occur, including the amount of salaries paid and the bonus pool. Although plaintiff contends that he objected to the practices at issue when he spoke privately to defendants Reid and Hendrickson, the Burch Court indicated that even if objections are made outside stockholder or directors’ meetings, a plaintiff who has not objected during such meetings has no judicial recourse. Id. at 314. Plaintiff never raised his concerns at board meetings or requested that the directors act differently with regard to the alleged improper transactions.
We do not agree that plaintiff should be excused for failing to object to or vote against the proposals by which the transactions were effected. Plaintiff claims that he acquiesced in Reid’s proposals under threat of termination of plaintiff’s employment. In other words, his employment would have been terminated if he had openly opposed those proposals at the board meetings. He argues that because he only acquiesced under threat of losing his job, he should not now be precluded from bringing his claims. While we agree that a plaintiff may maintain an action if he demonstrates that complaining to the directors or requesting them to act differently would have been futile, id. at 314-315, plaintiff here did not demonstrate that it would have been useless to challenge the actions at issue. Moreover, the directors of a corporation owe fiduciary duties to stockholders and are bound to act in good faith for the benefit of the cor poration. Production Finishing Corp v Shields, 158 Mich App 479, 486; 405 NW2d 171 (1987); Wagner Electric Corp v Hydraulic Brake Co, 269 Mich 560, 564; 257 NW 884 (1934). A “fiduciaiy duty” is “[a] duty to act for someone else’s benefit, while subordinating one’s personal interests to that of the other person.” Black’s Law Dictionary (6th ed) (emphasis added). If plaintiff failed to act for the benefit of Access because of his personal interest in his job, he himself has breached his fiduciary duty to Access’ shareholders. We will not reward plaintiff for failing to uphold his fiduciary duties in order to protect his personal interest, i.e., his job. His inaction at the board meetings is not excusable.
Next, we acknowledge that one of the transactions that plaintiff challenges, the use of Access money to finance defendant Access Venture Fund, L.P., apparently transpired after plaintiff’s employment with Access ceased. Thus, our prior ruling with regard to plaintiff’s claims against Access does not extend to this particular transaction. Nevertheless, we also conclude that summary disposition was appropriate with regard to this transaction. Plaintiff claims that the Access Venture Fund transaction violated the Michigan BIDCO Act, MCL 487.1101 et seq.-, MSA 23.1189(101) et seq., which provides that “[a] licensee shall not provide, directly or indirectly, financing assistance to an associate of the licensee.” MCL 487.1809; MSA 23.1189(809). In Claire-Ann Co v Christenson & Christenson, Inc, 223 Mich App 25; 566 NW2d 4 (1997), this Court reiterated that a private party cannot maintain an action to enforce a statute if the statute sets up a public enforcement mechanism and creates new rights that did not exist at common law. Id. at 30-31. The BIDCO Act was designed to “[p]romote economic development by encouraging the formation of ... a new type of private institution . . . .” MCL 487.1102(a); MSA 23.1189(102)(a) (emphasis added). It intended to set up its own methods of enforcement, MCL 487.1102(b) and (c); MSA 23.1189(102)(b) and (c), and, in fact, did so. See MCL 487.1701; MSA 23.1189(701) to MCL 487.1719; MSA 23.1189(719). The enforcement provisions allow the commissioner of the Financial Institutions Bureau of the Department of Consumer and Industry Services to "bring an action in the name of the people of this state” to enjoin violations of the act and enforce compliance. MCL 487.1701; MSA 23.1189(701). The act further prescribes numerous other actions that may be taken by the commissioner upon finding violations of the act. Because there is a public enforcement mechanism to address the allegations at issue, plaintiff is not entitled to sue to enforce the BIDCO statute.
We also note that plaintiff argues that because discovery was not complete, the trial court’s grant of summary disposition was premature and improper. This argument was not raised and decided by the trial court and, therefore, we will not review it. Adam v Sylvan Glynn Golf Course, 197 Mich App 95, 98; 494 NW2d 791 (1992).
Plaintiff next argues that the trial court should not have granted summary disposition in favor of Capitol. We disagree. Because plaintiff was estopped from vindicating the corporate interests of Access through a suit against Access itself, he was likewise estopped from vindicating the corporate interests of Access through an action against Capitol. The claims asserted against Capitol involve the same allegations and facts as some of the claims alleged against Access, which claims plaintiff was unable to maintain. The purpose of estoppel in the context of a derivative shareholder suit is to prevent a shareholder from challenging transactions in which the shareholder participated. See Burch, supra at 314. Because we have held that plaintiff was not entitled to relief against Access, we hold that plaintiff is also barred from challenging those same transactions through his claims against Capitol. Plaintiff may not pursue claims based on conduct and transactions that he approved. In addition, we note that plaintiff could not have been attempting to sue Capitol as a shareholder because there was no evidence that he held shares in Capitol. Finally, we also note that plaintiff argues on appeal that he should have been allowed to amend his complaint with regard to Capitol. Plaintiff did not raise this issue in his questions presented and review is therefore inappropriate. Weiss v Hodge (After Remand), 223 Mich App 620, 634; 567 NW2d 468 (1997).
Plaintiff next argues that the trial court erred in granting summary disposition of his breach of employment contract claim. We agree. There was a question of fact with regard to whether plaintiff’s employment had been terminated or he had resigned, and, if his employment had been terminated, whether that termination was in violation of his employment contract.
Plaintiff’s employment contract stated that “[t]he Employee’s employment. .. may be terminated at any time by the board of directors of Access, with or without cause . . . .” The term “cause” is exclusively defined in the contract. Plaintiff testified dining his deposition that Reid “made it clear that he didn’t want me working at the BIDCO any longer and I agreed with that.” He also stated, “I agreed that if [Reid] doesn’t want me there, it’s not working out, yeah, it’s a good idea to part ways.” In a subsequent affidavit, plaintiff claimed:
2. That to date, [plaintiff] has not resigned from Access BIDCO, nor has [plaintiff] been terminated in accordance with the terms of his employment agreement.
18. That following his repeated dissent and complaint, Joseph Reid told [plaintiff] that he was “50% of the way to firing you . . . .” [Plaintiff] indicated that he would not change his course of dissent and criticism. Reid directed that he negotiate with Attorney Lasky and enter into a separation agreement. Such agreement was never achieved. Two days later, Hendrickson asked for [plaintiff’s] keys to the Access office and told him that he did not have to come in again. Hendrickson caused him to be locked out of his telephone system, including voice mail. About one week later, [plaintiff] asked for and was granted permission to remove personal items from his desk while being watched by Hendrickson.
19. That [plaintiff] made repeated inquiry as to his status at Access and Onset because he knew of his ongoing responsibilities as a shareholder and director. At no time was [plaintiff] informed that he had been terminated nor had he resigned.
20. That all payments received by [plaintiff] after being asked to leave the premises of Access BIDCO were salary since he has not resigned or entered into a severance agreement with the Defendant, Access BIDCO, nor had he been terminated by action of the Board of Directors as required by his Employment Agreement.
Hendrickson testified that he never saw a resignation from plaintiff and that plaintiff had indicated that he was not sure if he had resigned.
Defendants produced a letter sent by Access’ attorney, also a member of Access’ board, to plaintiff, that purported to clarify the board’s position regarding plaintiff’s “separation” from employment. In the letter, plaintiff was offered six months of salary as severance pay and the issues of health insurance, vacation pay, and plaintiff’s Access stock were discussed. In addition, the letter requested that plaintiff draft a letter of resignation. Defendants also produced the affidavit of Hendrickson, which indicated that plaintiff “has been paid his accumulated vacation time and has been paid the equivalent of six month’s salary, which payments have been made by check and have been negotiated by” plaintiff.
After reviewing the record, the trial court determined that on the basis of plaintiff’s deposition testimony and “undisputed corporate documents” in the record, there was no genuine issue of material fact that plaintiff was an at-will employee, that plaintiff and Reid mutually negotiated a resignation by plaintiff with severance pay, and that plaintiff received six months of pay and his accumulated vacation pay. Our review de novo of the record leads to the opposite conclusion. Plaintiff averred that he never entered into a severance agreement. Moreover, plaintiff averred that he never resigned and that he was never informed that the board had terminated his employment. His deposition testimony that he and Reid had agreed that they should part ways does not indicate whether a resignation was negotiated or expected, or whether Reid planned on terminating or did terminate plaintiffs employment. Defendants did not produce unequivocal evidence that plaintiff resigned or approved the proposed severance agreement.
Summary disposition may be granted under MCR 2.116(C)(10) when, except for the amount of damages, there is no genuine issue concerning any material fact and the moving party is entitled to judgment as a matter of law. Stehlik v Johnson (On Rehearing), 206 Mich App 83, 85; 520 NW2d 633 (1994).
A court reviewing such a motion must consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the opposing party and grant the benefit of any reasonable doubt to the opposing party. [Id.]
Viewing the facts in the light most favorable to plaintiff, we find that there was a genuine issue of material fact regarding plaintiffs breach of contract claim, specifically whether he had resigned and accepted a severance package or whether his employment had been terminated pursuant to the terms of his contract.
In making our ruling, we note that we also disagree with the trial court that plaintiffs affidavit contradicted his deposition testimony. As previously indicated, while plaintiff acknowledged during his deposition that he and Reid agreed that they were going to end up parting ways, plaintiff never stated unequivocally that he had resigned or that he had reached a severance agreement. Plaintiffs affidavit was more specific than his deposition testimony. While it clarified and expanded that testimony, it does not directly contradict it.
Plaintiff also contends that because a genuine issue existed with regard to his contract claim, the trial court’s ruling with regard to plaintiff’s Access stock was improper. We agree. Access’ right to repurchase stock from plaintiff was conditioned on the vesting provisions in his employment contract and, apparently, on how the separation occurred. Because of our holding with regard to plaintiff’s claim for breach of his employment contract, we are unable to resolve the issue with regard to the vesting of plaintiff’s stock. This issue will need to be resolved on remand after a determination is made regarding whether and when plaintiff resigned or his employment was terminated.
Plaintiff also argues that the trial court failed to order defendants to convey to plaintiff shares he owned in defendant Onset BIDCO, Inc. Defendants concede that plaintiff is entitled to the Onset BIDCO shares. The trial court ruled that “the Onset issue has been adequately addressed by the concession.” We agree. Plaintiff is entitled to the shares.
Finally, plaintiff argues that the trial court erred in awarding sanctions. We agree. The trial court determined that plaintiff’s complaint was frivolous. While we agree that plaintiff was not entitled to relief pertaining to his allegations against Capitol, we do not find that the complaint, including the allegations against Capitol and defendants Reid and Hendrickson, rose to the level of frivolity that requires an award of sanctions; there was no showing or finding that the complaint was made to harass, embarrass, or injure any of the defendants or that plaintiff had no reasonable basis to believe that the facts supporting his claim were false, or that his position was devoid of argua ble legal merit. Cvengros v Farm Bureau Ins, 216 Mich App 261, 266; 548 NW2d 698 (1996); MCL 600.2591; MSA 27A.2591.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
In rendering our opinion that plaintiff was not able to maintain his action, we express no opinion regarding the validity, legality, or propriety of the actions about which plaintiff complains.
We note that our review of the deposition testimony is limited to the few select pages of testimony utilized by the parties in the trial court. The entire deposition transcripts were not filed in the trial court. | [
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Per Curiam.
This case involves consolidated appeals. In Docket No. 204209, intervening respondent Michigan Association of Public Insurance Adjusters, Inc., appeals by leave granted from the June 4, 1997, order of the lower court vacating the final order of the Insurance Commissioner that revoked the insurance adjuster licenses of petitioners Jeffrey W. O’Connor, Martin J. Refka, and Steven B. Taylor. In Docket No. 204234, respondent Insurance Commissioner appeals by leave granted from the same order. We reverse.
The controversy among these parties stems from the contentious relationship between Michigan and Ohio regarding the licensure of adjusters in their respective states. Ohio has a residency requirement in its licensure statute, which states that no license will be issued or renewed to an applicant who is not a resident of Ohio. See Ohio Rev Code Ann 3951.06(D). The restrictive nature of Ohio’s residency requirement was highlighted when the association’s president, a Michigan resident, and another Michigan resident set up an Ohio corporation and were unable to acquire Ohio licensing either individually or through their new corporate status. The corporation appealed the decisions, and the Ohio Supreme Court ultimately held that denial of the licensure was proper because neither the officers nor the directors of the corporation were Ohio residents. Associated Adjusters of Ohio, Inc v Ohio Dep’t of Ins, 50 Ohio St 2d 144; 363 NE2d 730 (1977). The Ohio court further stated that “[i]t is readily apparent that the individual applicants . . . have attempted to circumvent the statutory residency requirement by incorporating their enterprise in Ohio.” Id. at 148. In 1978, Michigan inserted a reciprocal provision in its licensure statute, denying licenses to applicants who reside in a jurisdiction that would deny a comparable license to a Michigan resident solely because of residency.
Petitioners are all residents of Indiana. They are all employed by Sill-Indiana, an adjusting firm that was incorporated in 1975 in Indiana, a state that does not discriminate against Michigan residents. However, Sill-Indiana is wholly owned and controlled by Robert Sill, a resident of Ohio and the owner and incorporator of Sill-Ohio, and the 1978 Michigan legislation effectively revoked the Michigan adjuster licenses of Sill-Ohio. Robert Sill is Sill-Indiana’s sole incorporator, sole shareholder, and sole director. According to the association’s interpretation of the company’s marketing brochures, Sill-Ohio is merely one company that is operated in multiple states, with petitioner Refka acting as the Indiana branch manager of the Ohio corporation and not an employee of Sill-Indiana.
Employees of Sill-Indiana apparently first applied for Michigan adjuster licenses in 1978 but were denied licensure because Sill-Indiana was controlled by an Ohio resident, although the applicants could have been licensed individually. In late 1986 and early 1987, an adjuster from the Sill corporation, who was not licensed in Michigan, came to Michigan to assist an adjuster licensed in Michigan. According to documents submitted by the association, the commissioner sent several notices of opportunity to show compliance in the matter until at some unspecified time, “the Sill compliance case and related compliance matters were discontinued with the understanding that any future unlicensed activity by Sill or any of his associates would lead to disciplinary action” and the further understanding that Sill had “agreed to support changes in the Ohio legislature to accomplish greater equity in the Ohio insurance adjusting marketplace for Michigan residents.”
In the early 1990s, petitioners in this case applied for Michigan adjuster licenses, stating on their applications that they would be representing an adjusting firm and supplying the name and address of Sill-Indiana. Petitioners claim that they found out from high-level staff at the commissioner’s office that no conflict would arise from granting licenses to them as Sill-Indiana employees. Petitioners received their licenses in 1992. The association drafted and submitted pleadings for a license revocation proceeding that were issued in May 1995 by the commissioner. The association then formally intervened in the matter, and respondents moved for summary decision.
A hearing was held on February 12, 1996. At the hearing, the association argued that licensure of petitioners meant that Sill-Ohio could avoid the retaliatory legislative intent of the Michigan statute simply by incorporating a Sill corporation in a nearby nonrestrictive state. The petitioners argued that, in order to deny them licensure, the commissioner would have to read into the statute an additional requirement that an applicant cannot work for a company that has an alter ego corporation incoiporated in a state that discriminates against Michigan residents.
The hearing referee agreed with petitioners’ construction of the statute and issued her proposal for summary decision to that effect on February 15, 1996. On October 7, 1996, the commissioner issued a ruling and order rejecting the hearing referee’s position and instead adopting the association’s argument.
On October 21, 1996, petitioners requested a stay of the revocation until they could file an appeal with the circuit court. The commissioner granted a stay on October 28, 1996. On October 30, 1996, the associa tion filed a motion to lift the stay, but the commissioner reaffirmed his decision.
Following a hearing on April 28, 1997, the circuit court reversed the commissioner’s decision and affirmed the hearing referee’s proposed decision. The trial court found that the commissioner had improperly pierced the corporate veil in considering the Ohio owner of Sill-Indiana.
Judicial review of an agency decision is limited to whether the decision is authorized by law and supported by competent, material, and substantial evidence on the whole record. Const 1963, art 6, § 28. A court may set aside an agency decision even if it is supported by substantial evidence if it is based on a substantial and material error of law. MCL 24.306(l)(f); MSA 3.560(206)(l)(f). Detroit Police Ass’n v Detroit, 212 Mich App 383, 388; 538 NW2d 37 (1995).
The construction of a statute by the agency legislatively chosen to administer it is entitled to great weight. Auto Club Ins Ass’n v Comm’r of Ins, 144 Mich App 525, 530; 376 NW2d 150 (1985). The task for this Court is to determine whether the commissioner’s construction is “sufficiently reasonable”; it should not be overruled without the “most cogent of reasons.” Id. at 530-531 (citations omitted).
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). Here it is apparent that the statute to be interpreted was enacted by the Legislature to remedy an existing injustice. See Rookledge v Garwood, 340 Mich 444, 453; 65 NW2d 785 (1954). When a statute is remedial in nature, it is to be liberally construed. Western Michigan Univ Bd of Control v Michigan, 455 Mich 531, 546; 565 NW2d 828 (1997). Liberal construction means giving words the largest, the fullest, and the most extensive meaning of which they are susceptible. Birznieks v Cooper, 405 Mich 319, 331, n 12; 275 NW2d 221 (1979).
The language at issue, which was added by the Legislature in 1978 to subsection 3 of MCL 500.1224; MSA 24.11224 provides:
Persons currently licensed and new licenses issued shall be subject to any additional restrictions under which a resident of this state would be licensed in the jurisdiction in which the applicant resides. Any such restriction shall be imposed by the commissioner upon the date set for payment of the license fee. The commissioner shall not issue a new license or accept an annual license fee continuing a current license to a person residing in a state that denies a comparable license to a resident of this state solely because of residency.
As part of the application process, the commissioner is specifically authorized by statute to investigate the applicant’s qualifications, residence, business affiliations, and any other matter the commissioner deems necessary or advisable. MCL 500.1224(2); MSA 24.11224(2).
In this case, the commissioner found that the Ohio-resident owner of respondents’ employer was not entitled to achieve “the authority of a license through the Indiana corporation that he owns.” The commissioner noted that “when the corporate form is employed to avoid the purpose of the law, the separate existence of the corporation can be disregarded,” citing C E Austin, Inc v Secretary of State, 321 Mich 426, 434; 32 NW2d 694 (1948). If petitioners were permitted to have licenses, the commissioner reasoned, Sill-Ohio would be able to adjust insurance claims in Michigan through its employees, even though Sill-Ohio itself is specifically prohibited from adjusting Michigan claims.
We find the commissioner’s interpretation “sufficiently reasonable.” Auto Club, supra at 530. Petitioners argue that the commissioner’s interpretation of the statute is unwise and unfair. Even if petitioners were correct, however, the courts may not impose a construction of a statute based on a policy decision when the Legislature has already chosen between competing policies. Stabley v Huron-Clinton Metropolitan Park Authority, 228 Mich App 363, 370; 579 NW2d 374 (1998). The wisdom of a statute is a legislative responsibility with which the courts may not interfere. Jennings v Southwood, 446 Mich 125, 142; 521 NW2d 230 (1994). We therefore reverse the decision of the circuit court vacating the commissioner’s decision.
We need not address respondent association’s claim that the commissioner improperly issued an order staying the effect of his decision, because it is moot in light of our ruling here, except to note that we find no abuse of discretion in this matter. Respondent association’s contention that petitioners do not have the statutorily required “good moral character” necessary for licensure was not decided by the trial court and is not, therefore, properly preserved for our review.
Finally, respondents argue that the commissioner was authorized to reject the hearing referee’s proposal for decision and render the final decision of the agency within a reasonable time. Petitioners respond that the final order of the commissioner could be reversed solely because it was untimely. The timeliness of the commissioner’s decision was not an issue raised in the parties’ applications for leave to appeal. In cases for which leave to appeal is granted, the appeal is limited to the issues raised in the application. MCR 7.302(F)(4)(a). Moreover, the circuit court declined to review this matter. This issue is not properly preserved for our consideration and need not be addressed.
Reversed. | [
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Markman, J.
The prosecutor appeals by leave granted an order by which the circuit court vacated a district court order denying defendant’s motion to suppress blood alcohol test results and remanded defendant’s case to the district court for an eviden-tiary hearing regarding whether the test results were reflective of defendant’s blood alcohol level at the time of his offense. The circuit court concluded that the prosecutor had failed to provide evidence to show that the results of the blood test were probative of defendant’s blood alcohol level at the time of the offense given the length of the delay between the offense and the test. We reverse the circuit court order and reinstate the district court order denying defendant’s motion to suppress.
On August 4, 1997, defendant was in a one-car automobile accident in Powell Township, Marquette County. The regional dispatch office received a call regarding the accident at 10:54 P.M., and Michigan State Police Trooper Dale Hillier was dispatched to the scene at 11:14 P.M. According to Trooper Hillier, he arrived at the accident scene between 11:45 P.M. and midnight. By the time he arrived, defendant had been taken to a doctor’s office at the nearby Huron Mountain Club. Apparently, another police officer arrived at the accident scene before Trooper Hillier, retrieved defendant from the doctor’s office, and brought him to the scene of the accident at approximately 12:20 A.M. Trooper Hillier testified that defendant denied having ingested any alcohol after the accident. Defendant was arrested at 12:42 A.M. for operating a vehicle while under the influence of intoxicating liquor (OUIL), MCL 257.625(1); MSA 9.2325(1). He was taken by patrol car to the hospital, approximately thirty miles from the accident, to have his blood drawn. Defendant had two vials of blood drawn by hospital personnel at 1:18 A.M. Test results showed a blood alcohol content of 0.27. Defendant was later charged with ouil.
Defendant filed a motion to suppress the results of the blood test. The district court denied the motion, stating:
Well, I think that some of the time was lost here because of the distances involved, and the officers, from the time that they apparently got him and placed him under arrest, it took about thirty-six minutes for them to get the test taken at the hospital. I feel that they have acted just as expeditiously as they could, and I am going to deny your motion to suppress.
Defendant then filed a delayed application for leave to appeal in the circuit court. Leave was granted, and, in an opinion issued on June 18, 1998, the circuit court vacated the district court order denying defendant’s motion to suppress, and remanded for an evi-dentiary hearing regarding the issue of the reasonableness of the time lapse between defendant’s accident and the drawing of defendant’s blood. The circuit court concluded that the time lapse was too long for the test results to be considered the equivalent of defendant’s blood alcohol content at the time of the accident, at least without expert testimony supporting such a conclusion.
The decision whether to admit evidence is within the sound discretion of the court. People v Hanna, 223 Mich App 466, 476; 567 NW2d 12 (1997). Similarly, whether the delay was reasonable is a determination left to the court. People v Jacobsen, 205 Mich App 302, 306-307; 517 NW2d 323 (1994), rev’d on other grounds 448 Mich 639; 532 NW2d 838 (1995); MRE 104(a). At the time that the circuit court heard this case, it was generally accepted that in order for the results of chemical tests of blood alcohol to be admitted into evidence, a prosecutor must meet four foundational requirements, as follows:
(1) the operator administering the test is qualified; (2) the proper method or procedure was followed in administering the test; (3) the test was performed within a reasonable time after the arrest; and (4) the testing device was reliable. [Jacobsen, supra at 305, citing People v Kozar, 54 Mich App 503, 509, n 2; 221 NW2d 170 (1974).]
The only requirement relevant in this case was whether the test was performed within a reasonable time. The circuit court in this case required that the prosecutor put forth evidence before admission of the test showing that defendant’s blood alcohol level at the time of the test was to be considered the equivalent of his blood alcohol level at the time of the accident in order to show that the test was performed within a reasonable time. To determine the proper effect, if any, that a delay in testing a defendant’s blood alcohol level should have on a drinking and driving case, we look to the law at issue and the policy surrounding Michigan’s drinking and driving laws.
We first address the “implied consent statute,” MCL 257.625a; MSA 9.2325(1), which governs the admissibility of chemical tests in drinking and driving cases. The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent and purpose of the Legislature. People v Stanaway, 446 Mich 643, 658; 521 NW2d 557 (1994); People v Gilbert, 414 Mich 191, 200; 324 NW2d 834 (1982). If statutory language is clear, it must be enforced as it is written, but if it is susceptible to more than one interpretation, we must determine what the Legislature meant by the language. People v Denio, 454 Mich 691, 699; 564 NW2d 13 (1997). “When the meaning of statutory language is questioned, a reasonable construction must be given by looking to the purpose subserved thereby, and the meaning must be derived from the statutory context within which the language is used.” People v Parsons, 142 Mich App 751, 756; 371 NW2d 440 (1985) (citations omitted). “Indeed, ‘provisions of a statute must be construed in light of the other provisions of the statute, in such a manner as to carry out the apparent purpose of the Legislature.’ Workman v DAIIE, 404 Mich 477, 507; 274 NW2d 373 (1979).” Dagenhardt v Special Machine & Engineering, Inc, 418 Mich 520, 529; 345 NW2d 164 (1984).
The implied consent statute in effect at the time of defendant’s accident provides, in pertinent part:
The amount of alcohol... in a driver’s blood or urine or the amount of alcohol in a person’s, breath at the time alleged as shown by chemical analysis of the person’s blood, urine, or breath is admissible into evidence in any civil or criminal proceeding. [MCL 257.625a(6)(a); MSA 9.2325(l)(6)(a).]
The results of the test are admissible in a judicial proceeding as provided under this act and will be considered with other competent evidence in determining the defendant’s innocence or guilt. [MCL 257.625a(6)(b)(ii); MSA 9.2325(l)(6)(b)(ii).]
Except in a prosecution relating solely to a violation of section 625(l)(b) or (6), the amount of alcohol in the driver’s blood, breath, or urine at the time alleged as shown by chemical analysis of the person’s blood, breath, or urine gives rise to the following presumptions:
If there were at the time 0.10 grams or more of alcohol per 100 milliliters of the defendant’s blood, ... it is presumed that the defendant was under the influence of intoxicating liquor. [MCL 257.625a(9)(c); MSA 9.2325(l)(9)(c).]
The statute does not expressly state what type of test is required as a prerequisite to the admission of chemical tests. Indeed, the statute itself does not require any prerequisite to admission. Instead, the Legislature simply states that the amount of alcohol in a driver’s body “at the time alleged as shown by chemical analysis of the person’s blood, urine, or breath is admissible into evidence.” MCL 257.625a(6)(a); MSA 9.2325(l)(6)(a) (emphasis added). The Legislature did not include a limit on the amount of time that the chemical analysis would continue to show the amount of alcohol “at the time alleged.” Id. Clearly, “at the time alleged” refers to the time of the offense. See State v Taylor, 132 NH 314, 318; 566 A2d 172 (1989). Pursuant to the plain language of the statute, a chemical test, regardless of the amount of time before the test is actually performed, is assumed to be a reasonable approximation of a person’s blood alcohol level at the time of the offense. The Legislature has determined that a chemical test is generally a sufficiently close indicator of a person’s blood alcohol content at the time of the offense that it must be allowed into evidence.
The statute also states that “ [i]f there were at the time 0.10 grams or more of alcohol per 100 milliliters of the defendant’s blood, ... it is presumed that the defendant was under the influence of intoxicating liquor.” MCL 257.625a(9)(c); MSA 9.2325(l)(9)(c) (emphasis added). Notably, the Legislature stated in this subsection that the presumption existed if there were 0.10 grams or more “at the time,” and not “at the time alleged.” The Legislature could have used such “alleged” language had it intended to require a prosecutor to extrapolate the blood alcohol content back to the time of the offense, and indeed the Legislature proved itself capable of using this language in other sections of the statute. Since the plain language evidences such a distinction between the words used in these sections, we are not prepared to undermine such distinction by reading the same meaning into each phrase. Instead, the phrase, “at the time” must be read not as requiring proof of a certain blood alcohol level at the time of the offense, but at the time of the test itself. Thus, the blood alcohol test results are statutorily deemed to relate back to the time of the alleged offense. In addition, the plain language of subsection 625a(9), stating that certain blood alcohol levels will result in “presumptions” that a “defendant’s ability to operate a vehicle was impaired,” MCL 257.625a(9)(b); MSA 9.2325(l)(9)(b), or that a “defendant was under the influence of intoxicating liquor,” MCL 257.625a(9)(c); MSA 9.2325(l)(9)(c), is contrary to the circuit court’s foundational requirement that additional evidence must be put forth showing the reliability of delayed tests. While the statutory language would allow the blood alcohol test results, standing alone, to provide the evidence of impairment or intoxication, the circuit court holding requires additional evidence linking the test and the offense. See Taylor, supra at 319. This holding, in our judgment, undermines the clear statutory presumption.
Further, we recognize that the intent of the implied consent statute is “ ‘to obtain the best evidence of blood alcohol content at the time of the arrest of a person reasonably believed to be driving while intoxicated’ and ultimately ‘to prevent intoxicated persons from driving on the highways.’“ Kozar, supra at 507, quoting Collins v Secretary of State, 384 Mich 656, 668; 187 NW2d 423 (1971). In order to prevent drinking and driving, and thus “protect the innocent users of streets and highways from the hazard of vehicles under the management of those irresponsible persons who insist on driving while so influenced,” State v Ulrich, 17 Ohio App 3d 182, 185-186; 478 NE2d 812 (1984); see also People v Perlos, 436 Mich 305, 327; 462 NW2d 310 (1990), the Legislature enacted the implied consent statute to enable the state to obtain convictions without being unduly burdened' in the proof of the crime. For example, persons who operate vehicles on public highways are “considered to have given consent to chemical tests of his or her blood,” rather than requiring the state to first obtain actual consent or a search warrant. MCL 257.625c(1); MSA 9.2325(3)(1). Also, persons with a certain blood alcohol level are “presumed” to be in violation of the law. MCL 257.625a(9); MSA 9.2325(1)(9). Although the Legislature could, of course, explicitly require that chemical tests be administered within a specific amount of time, or that the prosecutor set forth specific evidence as a prerequisite to admission, it did not do so here. Absent clear statutory language requiring a greater prosecutorial burden in admitting chemical tests of blood alcohol, and considering the clear purpose of the statute, we believe that a necessary inference is that the Legislature did not authorize such a burden. A requirement that the prosecution set forth preliminary evidence showing the reliability of the test results where there was any delay in testing would potentially frustrate the statute’s purpose by imposing an additional burden on the prosecutor in ouil cases.
Second, we address the practical policy aspects of the circuit court’s holding in this case. In this regard, we agree fully with the trial court’s statement quoted in Judge Smolensk’s dissenting opinion in People v Wager, 233 Mich App 1, 12; 592 NW2d 389 (1998), rev’d 460 Mich 118; 594 NW2d 487 (1999), in which the majority of a panel of this Court held that the prosecution must extrapolate a blood alcohol test back to the time of the offense in order to adrr.it the test results: “To accept the premise being postured here would mean that every time there’s a driving incident or an accident there would have to be portable medical teams, portable labs on the site, investigation, and that’s just not the statutory scheme.” Further, in a situation such as the instant one, even carrying portable labs would not reduce the delay because remote sites, including many in the sparsely populated areas of the Upper Peninsula, may take sig nificant time to reach, and even then the defendant may not be present at the site and may have to be found before a chemical test can be performed. The extrapolation requirement is not an insignificant burden. The Supreme Court of New Hampshire insightfully discussed this burden as follows:
Extrapolation, however, requires evidence that the State will rarely be able to acquire because of the defendant’s constitutional right to remain silent. Extrapolation requires evidence as to when, and in what amounts, the defendant consumed the alcohol prior to driving. Without this information, which is wholly within the defendant’s knowledge in the vast majority of cases, extrapolation of blood alcohol content back to the time of driving becomes an impossible task. The legislature could not have intended to place such an impossible burden on the State.
Second, even if the State were able to obtain evidence as to the exact time and the precise amount of alcohol consumed by the defendant prior to his driving, conclusive evidence of the blood alcohol content at the time of driving could still not be offered to the jury in the guise of a general rule because the rate of absorption of alcohol varies considerably between individuals. . . . The extrapolation evidence is further complicated by the amount of food consumed by the defendant at the time he consumes alcohol, which affects the rate of absorption. [2 D. Nichols, Drinking/Driving Litigation § 23:01 (1985).] This evidence is, again, wholly within the knowledge of the defendant. The legislature could not have intended to place such impossible roadblocks in the way of the State in prosecuting dwi cases. [Taylor, supra at 320 (emphasis added).]
We agree fully with the New Hampshire Supreme Court. While we can imagine a more reliable method of testing impaired or intoxicated driving, such as a motor vehicle that itself takes continuous readings of blood alcohol levels of its driver, this method is not yet, to say the least, required by the Legislature. Until such time as we are able to rely on such technology, the state must prosecute drinking and driving offenses with the best evidence that it can reasonably obtain. The tests currently available cannot reflect a defendant’s blood alcohol content at precisely the moment he was driving. Given this fact, most, if not all, cases, would require some additional evidence attempting to extrapolate the results to the time of the offense if extrapolation were required as a condition of admissibility. See Taylor, supra at 319. Thus, it would be increasingly difficult for the state to convict defendants of impaired or intoxicated driving where the evidence of the crime is a blood alcohol test. As a result, some unknown number of OUIL cases would be dismissed where they would not have been dismissed otherwise. The difficulty of establishing evidence of a nexus between the offense and the test results would have the effect of encouraging defendants to delay taking a blood alcohol test for as long as possible while providing no information regarding their actions near the time of the offense. A defendant’s own actions should not be allowed to effect the suppression of evidence against him.
In addition, we agree with the Supreme Court’s statement in People v Sloan, 450 Mich 160, 197, n 11; 538 NW2d 380 (1995): “Because a person’s blood-alcohol level dissipates over time, the danger to the rights of the defendant that are being protected by such a rule is not readily apparent.” In the overwhelming majority of cases, delay on the part of the police will only inure to the defendant’s benefit. Although there are exceptions to this, we believe that it would be more sensible to allow defendants to set forth evidence at trial showing the unreliability of the blood alcohol test taken in their particular cases rather than to burden the system generally by assuming that a delay is harmful to defendants in the absence of contrary evidence from the prosecutor and thereafter suppressing the results, as required by a foundational extrapolation standard. Certainly a defendant is always free to argue that a delay undermined the test results at trial, but placing an affirmative burden on the state to establish a nexus between the test results and the blood alcohol level at the time of the offense in order to even admit the test results is too onerous a procedure, in our judgment. We conclude that the statute at issue, as well as practical state policy surrounding the rule against drinking and driving, does not support a foundational extrapolation standard, which requires the prosecutor to offer evidence that the test results accurately reflected a defendant’s blood alcohol level at the time of the offense.
Third, we address the correct standard to be applied as a prerequisite to the admission of blood alcohol tests. Although the statute itself does not contain any foundational requirement, all evidence continues to be subject to all other applicable precedents and rules regarding the admissibility of evidence. The prerequisite standard for admissibility of blood alcohol tests applied by the circuit court is more than a preliminary question regarding mere admissibility; rather, it is a question regarding the effect of the evidence on the ultimate question of guilt or innocence that should properly be determined by the trier of fact. In our judgment, this is inconsistent with the statute, as well as the policy against drinking and driving.
The fact that there is a delay between the time of the offense and the time of the testing does not affect the reliability of the test results, which is shown by the proper administration of properly working equipment by a qualified operator. A delay does affect both the relevancy of the test results and, if relevant, the weight that the results may be accorded by the trier of fact in the ultimate determination of guilt or innocence. It appears that the circuit court would require a prosecutor to put forth evidence regarding the weight of the test results as a test of admissibility, when the standard for admissibility of blood alcohol tests should be limited to their relevance to a case. Pursuant to MRE 402, “[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Michigan, these rules, or other rules adopted by the Supreme Court.” Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” MRE 401. Therefore, we conclude that if the test result has any tendency to show that a defendant was more probably or less probably impaired or intoxicated when driving, and this probative value is not substantially outweighed by the “danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence,” MRE 403, the result must be admitted into evidence. Certainly there will be extensive time delays that may make a test irrelevant, although the exact length of time will depend on the circumstances of the particular case and must be left to the discretion of the trial court. Where there is “any tendency” that the test results make the existence of a defendant’s state of intoxication at the time of the offense more or less probable than without the evidence, the test result must be admitted unless it is properly excluded under MRE 403. At that point, a defendant would then be free to argue the relative merit of the evidence to the trier of fact. “Admissibility, in other words, is a question entirely distinct from the due process requirement of proof beyond a reasonable doubt.” Miller v State, 597 So 2d 767, 770 (Fla, 1991) (Kogan, J., specially concurring).
Our analysis in this case is supported by the Supreme Court of Florida, which held:
[T]he inability of the State to “relate back” blood-alcohol evidence to the time the defendant was driving a vehicle is a question of credibility and weight-of-the-evidence, not of admissibility, provided the test is conducted within a reasonable time after the defendant is stopped.
What is “reasonable” in this context will depend upon the facts of each case. As a general rule, we believe a test is conducted at an unreasonable time if the results of that test do not tend to prove or disprove a material fact, or if the probative value of the evidence is outweighed by its potential to cause prejudice or confusion. [Id.]
Similarly, where a Colorado statute permitted a jury to infer that a defendant was under the influence of alcohol if it found a certain amount of alcohol in his blood at the time of the offense “or within a reasonable time thereafter,” the “reasonable time” limitation was equated with a relevancy standard. People v Emery, 812 P2d 665, 667 (Colo App, 1990). The Colorado Court of Appeals stated:
[T]he delay in obtaining samples did not affect the validity or reliability of the test, nor did it affect the admissibility of the test results. The “reasonable time” limitation is to ensure that the request for the test is made close enough in time to the alleged offense that the results will be relevant in the determination of a defendant’s sobriety at the time of the incident. And, while the timeliness of the blood test may affect its accuracy, evidence which relates to the accuracy of a chemical test affects the weight to be accorded the evidence, rather than its admissibility. [Id. (citations omitted).]
Even more importantly, our analysis on this issue also comports with that of the Michigan Supreme Court in People v Wager, 460 Mich 118; 594 NW2d 487 (1999), in which the Court reversed the Court of Appeals decision, which had held that in order to fulfill the foundational admissibility requirement that a blood alcohol test was administered within a reasonable time, a prosecutor was required to offer evidence that the blood test results accurately reflected a defendant’s blood alcohol level at the time of the offense. The Supreme Court stated:
Looking at the origin of the rule as set forth in Kozar and the absence of a dispositive ruling on point from this Court, we are satisfied that no sound reason exists to engraft the “reasonable time” element onto the clear language of the statute. Thus, to the extent that Kozar and its progeny adopt a “reasonable time” element, they are expressly overruled. [Id. at 123-124.]
Thus, the Supreme Court held that, “[p]ursuant to the clear statutory language, test results ‘are admissible . . . and will be considered,’ MCL 257.625a(6)(b)(ii); MSA 9.2325(l)(6)(b)(ii), and the prosecutor is not required to introduce expert testimony on this issue.” Wager, 460 Mich 125-126. “To the extent that the passage of time reduces the probative value of the test, the diminution goes to weight, not admissibility, and is for the parties to argue before the finder of fact.” Id. at 126.
For the reasons stated above, we conclude that the implied consent statute and the policy regarding drinking and driving support the conclusion that the only prerequisite to admission of blood alcohol test results is a threshold relevancy requirement, as codified in MRE 401, 402, and 403. Under this standard for admissibility, we agree with the reasoning of Judge Smolenski in his dissenting opinion in People v Wager, 233 Mich App 1, 13, that “[finding nothing inherently unreasonable” solely in the delay between the time of the offense and the time of the blood test, we are “unwilling to second-guess the trial court’s considerable discretion.” In the case before us, the district court was aware that there was a delay between the accident and the blood test of about two hours and twenty-four minutes, and that defendant denied having ingested any alcohol after the accident. This delay was not so long that we can say that the test result did not have some tendency to make the fact of defendant’s intoxication at the time of the accident more or less probable. Therefore, the test result was relevant to the case, and the district court properly denied defendant’s motion to suppress the test result. Any further discussion regarding the effect of the delay should take place at trial, where it will properly influence the weight given to the result by the trier of fact.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
We note that the blood test results were not included in the lower court record. The actual results are not necessary for reaching a decision in this case because the issue here is whether the delay was reasonable. However, because there does not appear to be any dispute regarding the results, we note as background information that the test results indicated that defendant’s blood alcohol level was 0.27.
We note that even where a New Hampshire statute stated that “a court may admit evidence of the amount of alcohol in the defendant’s blood at the time alleged, as shown by a test.... Evidence that there was, at the time alleged, 10/100 percent or more by weight of alcohol in his blood is prima facie evidence . . . .” NH Rev Stat Ann § 265:89 (Cum Supp 1988) (emphasis added), the New Hampshire Supreme Court held that the language did not require the prosecutor to prove that the defendant had a 0.10 or greater blood alcohol content at the precise time he was driving because this result would be “illogical.’’ State v Taylor, 132 NH 314, 318; 566 A2d 172 (1989).
See, e.g., LaRocca, Admissibility of delayed blood test results—Commonwealth v Gonzalez, 519 Pa 116; 546 A2d 26 (1988), 62 Temple L R 757, 766, n 57 (1989).
The circuit court in this case applied a two-part test that included the reasonableness of the delay from the standpoint of the police officers’ actions, and the reasonableness of the delay with regard to the “probity of the test as to the condition of the driver at the time of the offense.” We conclude that the good or bad faith of the police officers conducting a blood alcohol test has no obvious part in determining the relevance of such a test to a drinking and driving case. While the good or bad faith of the police officers with regard to a delay may conceivably be relevant to some other inquiry, there is no allegation of bad faith on the part of the police officers in this case. Thus, we decline to speculate about the possible consequences if such an allegation were, in fact, demonstrated. | [
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Per Curiam.
Petitioners appeal as of right from the probate court’s order granting respondent’s motion for summary disposition pursuant to MCR 2.116(C)(8). We affirm.
Petitioners filed a petition to require a full accounting from respondent as the successor trustee of the Alfred H. Goldman Marital Trust and to surcharge respondent for breaching its fiduciary duties relative to the marital trust. The probate court’s order set forth the following succinct history of this case:
Alfred H. Goldman died on October 17, 1970. Surviving him were his wife, Francis [sic] Goldman [Abelcop] and a son, Barry A. Goldman. The decedent’s Last Will and Testament established two separate Trusts; a Marital Trust and a Family Trust. Only the Marital Trust is at issue in this case.
When Alfred H. Goldman died, Barry A. Goldman became the Trustee of the Marital Trust. The terms of the Marital Trust provided that the income generated by the Trust be distributed to the decedent’s surviving spouse during her lifetime but gave the Trustee, Barry A. Goldman the discretion to invade principal if necessary for the accustomed standard of living of the spouse. The Will also gave the sur viving spouse the power to appoint the remainder of the Marital Trust by Will and if she failed to do so, the remainder went to the Family Trust.
Barry A. Goldman died in 1975. Since Barry A. Goldman was the beneficiary of the Family Trust, the funds in the Family Trust were to pass to Barry A. Goldman’s estate and distributed in accordance with his Last Will and Testament. The surviving spouse of Alfred H. Goldman died on December 6, 1993 without exercising her power of appointment under the Marital Trust. . . .
According to the Petitioners, sometime in the early 1970’s, Barry Goldman distributed all of the assets of the Marital Trust to Alfred Goldman’s surviving spouse. Francis Goldman in turn created a new Trust naming Barry Goldman and NBD Bank as Co-Trustees. The Petitioners contend that this Trust was funded with the assets of the Marital Trust and that the new Trust enabled the surviving spouse to withdraw all of its assets in violation of the terms of the Marital Trust.
The gist of petitioners’ claim against respondent is set forth in ¶¶ 9, 10, and 15 of their petition, which stated:
9. . . . Nbd Bank knew, or should have known, the circumstances of Barry A. Goldman’s wrongful withdrawal of the Marital Trust assets, when he withdrew and placed them in his and nbd Bank’s hands as trustees of Francis [sic] Abelcop’s revocable trust, at the time when it accepted the appointment as co-trustee, as seen by the fact that it had a copy of the Decedent’s Will in its possession.
10. Thereafter, nbd Bank and Barry A. Goldman wrongfully permitted another transfer of all of the Marital Trust assets from the new trust when it allowed them again to be transferred to a similar revocable trust created by Frances Goldman Abelcop, but this time with Barry A. Goldman as the sole trustee. . . .
15. Nbd Bank breached its fiduciary duties as it accepted assets from Barry A. Goldman, which he then held as trustee, knowing that he was breaching his fiduciary duties to the beneficiaries by improperly distributing the assets of the Marital Trust to nbd Bank and himself as co-trustees and then nbd Bank compounded its wrong by improperly redistributing the assets to Barry A. Goldman himself [sic] to the Frances Goldman Abelcop revocable trust that had none of the protections established for the beneficiaries that existed in the Marital Trust in breach of its fiduciary duties. After the foregoing assistance to Barry A Goldman in breaching his fiduciary duties, among other improper actions, nbd Bank breached its own fiduciary duties by the following actions and inactions:
a. Nbd Bank failed to assure that the Marital Trust created in Article fifth, Paragraph 1 of the Decedent’s Will was administered in conformance therewith, which it was aware of because it had possession of the Decedent’s Will at his death when it received the funds therefrom.
b. Nbd Bank made improper distributions of principal to Frances Goldman Abelcop’s unrestricted control under her revocable trust with Barry A. Goldman acting as the sole trustee thereof, when nbd Bank allowed itself to do so because it was obligated to let Frances Goldman Abelcop invade principal that rightfully was restricted by the Marital Trust, even though it was not necessary to allow her to maintain her accustomed standard of living under the terms of the distribution provisions applicable to the Marital Trust.
c. Nbd Bank breached its fiduciary duties to the Petitioners-beneficiaries by failing to account properly to Petitioners for what happened to the principal and income of the Marital Trust to Petitioners at any time after it became involved as co-trustee of the assets of the Marital Trust.
d. Nbd Bank failed to assure that the principal and undistributed income of the Marital Trust were paid over to Petitioners-beneficiaries at the time of Frances Goldman Abelcop’s death.
First, petitioners contend that their petition stated a cause of action against respondent for its participation in the trustee’s breaches of fiduciary duty in the wrongful distribution of the marital trust assets. We disagree. A trial court’s grant of summary disposition is reviewed de novo on appeal. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion for summary disposition pursuant to MCR 2.116(C)(8) is properly granted when a claim is legally insufficient on the pleadings because the plaintiff has not stated a claim on which relief may be granted. Id. The claim must be tested on the pleadings alone and must be so clearly unenforceable that no possible factual development could justify recovery. Simko v Blake, 448 Mich 648, 654; 532 NW2d 842 (1995). All factual allegations in the complaint, as well as reasonable inferences from those facts, must be accepted as true. Stott v Wayne Co, 224 Mich App 422, 426; 569 NW2d 633 (1997).
Under the legal theory proposed by petitioners, respondent is liable to them for damages because it participated in Barry Goldman’s breach of his fiduciary duty as trustee of the marital trust. Third parties that profit from a fiduciary’s breach can be liable under certain circumstances as set forth in 3 Scott on Trusts, p 2429, § 506, quoted with approval in L A Young Spring & Wire Corp v Falls, 307 Mich 69, 106; 11 NW2d 329 (1943):
“Liabilities of third persons. Where a person in a fiduciary relation to another violates his duty as fiduciary, a third person who participates in the violation of duty is liable to the beneficiary. If the third person makes a profit through such participation, he is chargeable as constructive trustee of the profit so made.”
In LA Young Spring & Wire, General Motors executives and an engineer conspired to cause General Motors to pay royalties on a patent to a third party, then took a share of the royalties for their efforts. Id. at 106-107. The third party was a willing and active participant in the conspiracy to defraud General Motors, and the Court therefore held him jointly and severally hable for all profit he received from his wrongdoing. Id. at 106. The Court, id., also quoted Irving Trust Co v Deutsch, 73 F2d 121, 125 (CA 2, 1934), for the proposition that “ ‘[o]ne who knowingly joins a fiduciary in an enterprise where the personal interest of the latter is or may be antagonistic to his trust becomes jointly and severally liable with him for the profits of the enterprise.’ ” Similarly, in Hayes-Albion Corp v Kuberski, 421 Mich 170, 187; 364 NW2d 609 (1984), our Supreme Court quoted both of the above passages and held that a third party that knowingly participated in the defendant’s misappropriation of trade secrets from his employer was liable for both actual damages and unjust enrichment damages.
While the rules announced in Hayes-Albion and L A Young Spring & Wire could apply in the context of a third party that profited from knowingly participating in an enterprise or conspiracy by which a trustee breached his fiduciary duty to the beneficiaries of a trust, we agree with the probate court that petitioners have failed to set forth a cause of action against respondent in the present case. Petitioners did not allege that respondent participated in an enterprise or conspiracy with Barry Goldman to transfer the assets from the marital trust in violation of his fiduciary duties. Rather, petitioners alleged that respondent knew or should have known the circumstances of Barry A. Goldman’s wrongful withdrawal of the marital trust assets when it accepted the appointment as cotrustee of Frances Goldman’s revocable trust, because respondent had a copy of Alfred Goldman’s will in its possession. We conclude that respondent’s alleged actions in the present case did not constitute participation in a conspiracy or enterprise similar to those that existed in Hayes-Albion and L A Young Spring & Wire. Unlike the defendants in Hayes-Albion and L A Young Spring & Wire, respondent took no affirmative steps to assist Barry Goldman in violating his fiduciary duties and did not profit from the violation. While petitioners alleged facts from which we might reasonably infer that Barry Goldman breached his fiduciary duty by violating the provisions of the marital trust, we conclude that petitioners failed to allege facts from which we might reasonably infer that respondent knowingly participated in his alleged breach of that fiduciary duty. Accordingly, we hold that the probate court properly granted respondent’s motion for summary disposition.
Finally, petitioners contend that the probate court erred in failing to require respondent to file an accounting for the marital trust. We disagree. While the courts will strictly enforce a trustee’s duty to keep and render a full and accurate accounting of his trusteeship to the cestui que trust, Raak v Raak, 170 Mich App 786, 790; 428 NW2d 778 (1988); MCL 700.814; MSA 27.5814, we conclude that respondent had no duty to file an accounting in the present case because it was not the trustee of the marital trust. Accordingly, we hold that the probate court properly granted respondent’s motion for summary disposition.
Affirmed.
Having concluded that petitioners failed to state a cause of action against respondent for its alleged participation in Goldman’s breach of fiduciary duty, we find it unnecessary to address petitioners’ second and third issues. | [
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Per Curiam.
Respondent appeals by right from an order of the Family Division of the Midland Circuit Court terminating his parental rights and granting a petition for adoption pursuant to § 39 of the Adoption Code, MCL 710.39; MSA 27.3178(555.39). We affirm.
i
On October 1, 1985, Beth Scarcliff, petitioners’ daughter, gave birth to a son, James Robert Lang, who was fathered by respondent, her live-in boyfriend. On March 22, 1987, respondent shot and killed Beth. He was subsequently convicted and imprisoned for the crime. On the date that his mother was killed, James went to live with petitioners, his maternal grandparents, and has lived with them continuously since then. Petitioners became James’ guardians, and in May 1998 filed a petition to adopt James. A hearing was held on the petition on June 29, 1998.
During the hearing, petitioner Carrie Scarcliff testified that James had just finished sixth grade and had earned all A’s and B’s and a variety of academic and athletic awards. She testified that respondent maintained contact with James from 1990 to 1994, but respondent had not sent any cards, letters, or financial support since October 1994, when he sent James a $25 check for his birthday. She further testified that there had been no telephone calls from respondent. Petitioner testified that nothing had been done to prevent contact by respondent with James. Carrie Scar-cliff admitted that in 1991 she advised respondent that James had said he did not want to talk with respondent or to correspond with him at that time, but she testified that she never told respondent that his calls or letters were unwelcome. Scarcliff stated that her family remained in contact with respondent’s parents until his mother died. She identified a May 1998 letter from respondent’s mother asking the Scar-cliffs to adopt James.
Respondent testified that he did not want petitioners to adopt James because he loved him, he tried to be a good father, and he hoped to rebuild their rela tionship upon his release from prison. He asserted that he did everything he could do to stay in contact with James but that petitioners blocked communication between him and James because they hated him for killing their daughter. He testified that he had sent James three letters since October 1994 and got no response, with the last letter being sent in November or December 1994. Respondent stated his belief that petitioners should have made a conscious effort to talk to James to encourage him to write to respondent in prison. He explained that he had not tried to call James since October 1994 because petitioners moved and had told him that they would get in contact with him. He admitted that his relatives had petitioners’ telephone number, but he did not ask them for it. Respondent testified that he earned $11 a month in prison but, after purchasing personal items, had nothing left to send for James’ support. However, he stated that the birthday check he sent James in 1994 was money that he had saved. Respondent admitted that he had a criminal history dating back to when he was fourteen and had prior convictions of assault with intent to commit great bodily harm, malicious destruction of property, joyriding, and disorderly conduct.
The judge spoke to James in chambers and off the record. The court issued an opinion from the bench that termination of respondent’s parental rights was in the best interests of the minor child. Although the statutory basis for the termination was not cited, the court apparently terminated respondent’s parental rights under subsection 39(1) of the Adoption Code. Petitioner Carrie Scarcliff executed a form releasing her rights as guardian and consenting to the adoption of James. The court then entered an order terminating respondent’s parental rights and placed James with petitioners.
n
If a child is bom out of wedlock and the biological father does not voluntarily release his parental rights or consent to adoption, the child may not be placed for adoption until the father’s parental rights are terminated by the court as provided in § 37 or § 39 of the Adoption Code or as provided under chapter XIIA of the Juvenile Code. MCL 710.31(1); MSA 27.3178(555.31)(1). At the time of the instant proceedings and entry of the court’s order terminating respondent’s parental rights, § 39 provided, in relevant part:
(1) If the putative father does not come within the provisions of subsection (2), and if the putative father appears at the hearing and requests custody of the child, the court shall inquire into his fitness and his ability to properly care for the child and shall determine whether the best interests of the child will be served by granting custody to him. If the court finds that it would not be in the best interests of the child to grant custody to the putative father, the court shall terminate his rights to the child.
(2) If the putative father has established a custodial relationship with the child or has provided support or care for the mother during pregnancy or for either mother or child after the child’s birth during the 90 days before notice of the hearing was served upon him, the rights of the putative father shall not be terminated except by proceedings in accordance with section 51(6)[ ] of [the Adoption Code] or section 2 of chapter XIIA [the neglect provisions of the Juvenile Code], [MCL 710.39; MSA 27.3178(555.39) (emphasis added).]
The above provisions create two categories of putative fathers: those who have a custodial relationship with, or provide support for, their child and those who do not. In re Barlow, 404 Mich 216, 229; 273 NW2d 35 (1978). Pursuant to subsection 39(2), the parental rights of the former can be terminated only under § 51(6) of the Adoption Code or chapter XIIA of the Juvenile Code, while pursuant to subsection 39(1), those of the latter may be terminated upon an examination of the father’s fitness and ability to prop erly care for the child and a finding that termination is in the child’s best interests.
Respondent claims that the family court erroneously applied subsection 39(1) in determining whether respondent’s parental rights should be terminated. Respondent, however, admits that he did not provide monetary support for his son; consequently, subsection 39(2) would apply only if he had established a custodial relationship with his son. Respondent argues that subsection 39(2) was applicable because respondent tried to maintain a custodial relationship with his son, but petitioners thwarted him.
We note that respondent did not assert below that subsection 39(2), rather than subsection 39(1), of the Adoption Code was applicable in this case, and the court did not address this question. Therefore, this issue is not preserved for our review. McCready v Hoffius, 222 Mich App 210, 218; 564 NW2d 493 (1997), rev’d on other grounds 459 Mich 131; 586 NW2d 723 (1999). However, because the issue is one of law, this Court may address it if all the necessary facts are before the Court. Poch v Anderson, 229 Mich App 40, 52; 580 NW2d 456 (1998). On our review of the record in this case, we disagree with respondent’s claim that the family court should have applied subsection 39(2) in determining whether to terminate his respondent’s parental rights. We conclude that the court correctly proceeded under subsection 39(1) of the Adoption Code and did not err in terminating respondent’s parental rights under that statutory provision.
The statute does not define the term “custodial relationship,” and this Court has not had occasion to consider what constitutes a custodial relationship within the meaning of subsection 39(2) of the Adoption Code.
The interpretation of a statute is a question of law that we review de novo on appeal. In re Dawson, 232 Mich App 690, 696; 591 NW2d 433 (1998). The primary goal of judicial interpretation of a statute is to ascertain and give effect to the intent of the Legislature. Id. The first criterion in determining intent is the specific language of the statute. Id. In construing a phrase, a court is to use common sense and apply a reasonable construction that best accomplishes the purpose of the statute. In re Gaipa, 219 Mich App 80, 84; 555 NW2d 867 (1996). The fair and natural import of the terms employed, in view of the subject matter of the law, should govern, and dictionary definitions may be consulted. In re Wirsing, 456 Mich 467, 474; 573 NW2d 51 (1998); Popma v Auto Club Ins Ass’n, 446 Mich 460, 470; 521 NW2d 831 (1994). In enacting the Adoption Code, the Legislature sought, inter aha, to establish procedures to safeguard and promote the best interests of the adoptee and to provide for speedy resolution of disputes concerning a putative father’s rights where placement of a child for adoption is sought. MCL 710.21a; MSA 27.3178(555.21a); In re Barlow, supra at 228-229. Because the Adoption Code is in derogation of the common law, its provisions are narrowly construed. In re Dawson, supra at 696.
Random House Webster’s College Dictionary (1992) defines custodial as “of or pertaining to custody” and “providing protective supervision and guardianship rather than seeking to improve or cure: custodial care.” (Emphasis in original.) It defines custody as “keeping; guardianship; care” and as “the right of determining the residence, care, schooling, etc., of a child or children.” Id. Thus, a custodial relationship between a parent and child is one in which the parent exercises control and supervision over the child and responsibility for the child’s upbringing. Such a relationship requires much more than mere contact between the parent and the child.
In In re Gaipa, supra, a panel of this Court determined what constitutes “support or care” for a putative father to come within the provisions of subsection 39(2). Although addressed primarily to that question, we find that the following comments of the Court are equally applicable to the question of what constitutes a “custodial relationship” within the purview of subsection 39(2).
As indicated by the Supreme Court in Barlow, supra, the group of putative fathers that comes within the provisions of § 39(2) do so because they have established some sort of custodial or support relationship with the child or mother. It seems clear that, in demanding such an established relationship, the Legislature must have intended more than an incidental, fleeting, or inconsequential offer of support or care and therefore must have intended more than “any” contribution by the putative father. [In re Gaipa, supra at 85 (emphasis added).]
The Child Custody Act also provides guidance in construing the meaning of “custodial relationship” because both statutes share a common purpose of promoting the best interests of the child. MCL 710.21a(b); MSA 27.3178(555.21a)(b), MCL 722.26(1); MSA 25.312(6)(1), MCL 722.27(1); MSA 25.312(7)(1). See In re Barlow, supra at 236. Analogously, a court, in deciding a custody question in a divorce case, first determines whether an established custodial environ ment exists before it determines the child’s best interests. Overall v Overall, 203 Mich App 450, 455; 512 NW2d 851 (1994). A custodial environment is established if “over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.” MCL 722.27(l)(c); MSA 25.312(7)(l)(c). Thus, a custodial relationship, as does a custodial environment, suggests that an established relationship exists between the parent and the child in which the parent exercises responsibility for the care, supervision, and upbringing of the child.
Although respondent contends that the factors relevant to determining whether the putative father has provided support or care are equally applicable to determining whether he has a custodial relationship, he has not cited any authority in support of that contention and thus has waived this on appeal. In re Contempt of Barnett, 233 Mich App 188, 191; 592 NW2d 431 (1998). In any event, if the factors for determining whether the father has provided support or care could be used to establish whether he has a custodial relationship, it would effectively eliminate any distinction between the phrases “established a custodial relationship” and “provided support or care,” which is contrary to the general rules of statu tory construction. Gibson v Neelis, 227 Mich App 187, 193; 575 NW2d 313 (1997).
Given that respondent had been in prison for approximately eight years before the hearing in this matter, that respondent had not even made an attempt to contact James for approximately four years before the hearing, and that respondent did not participate in the care and upbringing of James, it cannot be said that respondent had a custodial relationship with James. Respondent’s attempts to establish a relationship with James were incidental and fleeting at best, and thus were insufficient to establish a custodial relationship. In re Gaipa, supra.
Because respondent did not have a custodial relationship with James and did not provide support or care for him, subsection 39(2) was inapplicable and the family court properly considered whether respondent’s parental rights should be terminated under subsection 39(1). The court did not clearly err in finding that termination of respondent’s parental rights was warranted under that section of the Adoption Code.
m
Respondent alternatively argues that subsection 39 should not apply at all because his lengthy incarceration effectively prohibited him from maintaining a custodial relationship or providing support or care. We disagree.
Addressing a similar argument with respect to termination under MCL 710.51(6); MSA 27.3178(555.51)(6), this Court determined that under the clear language of the statute,
no incarcerated parent exception exists. Moreover, ... an incarcerated parent may still retain the ability to comply with the support and contact requirements of the statute. Accordingly, the statute applies to respondent. [In re Caldwell, 228 Mich App 116, 121; 576 NW2d 724 (1998).]
Section 39 likewise does not contain an incarcerated parent exception. See In re Ballard, 219 Mich App 329, 336-337; 556 NW2d 196 (1996). While incarceration effectively prohibits a parent from establishing a custodial relationship with his child, it does not necessarily preclude him from providing support for the child. The regular provision of support payments within the parent’s means could establish the provision of support or care required under subsection 39(2). In re Gaipa, supra at 86. See In re Caldwell, supra at 122-123. It is undisputed that respondent did not provide any support for his minor child for a period of almost four years preceding the hearing, despite the fact that he did earn some, albeit modest, income in prison. Likewise, despite his incarceration, defendant was not prohibited from attempting to contact the child.
We affirm.
Defendant was convicted in 1990 of voluntary manslaughter and possession of a firearm during the commission of a felony in connection with the death. This Court reversed the conviction in September 1993. Defendant was retried before a different judge and convicted again. He was sentenced on July 28, 1994, to terms of nine to fifteen years and two years, respectively. This Court affirmed. People v Lang, unpublished opinion per curiam of the Court of Appeals, issued November 1, 1996 (Docket No. 179520).
Carrie Scarcliff stated that the family moved to a new home in August 1994. She testified that she sent respondent their new mailing address and, because telephone service had not yet been established, told him their telephone number would be listed in the book.
Respondent testified in the proceedings held below that his earliest possible parole date is May 2000.
See MCL 710.22(f); MSA 27.3178(555.22)®.
The court used the wrong form for terminating respondent’s rights. It used the form for termination “after release or consent,” apparently confusing petitioner’s consent to the adoption with the father’s. We note, however, that the court’s error in this regard is harmless and does not affect the validity of the termination of respondent’s parental rights.
Section 37 is not applicable in this case. It applies in general when the putative father denies interest in custody of the child, denies paternity, or cannot be identified or located. MCL 710.37; MSA 27.3178(555.37).
Subsection 51(6) is not applicable in this case. It applies when the parent having legal custody of the child remarries and that parent’s spouse petitions to adopt the child. MCL 710.51(6); MSA 27.3178(655.51)(6).
After the instant proceedings, subsection 2 of MCL 710.39; MSA 27.3178 (555.39) was amended pursuant to 1998 PA 94, effective September 1, 1998, to state:
If the putative father has established a custodial relationship with the child or has provided substantial and regular support or care in accordance with the putative father's ability to provide such support or care for the mother during pregnancy or for either mother or child after the child’s birth during the 90 days before notice of the hearing was served upon him, the rights of the putative father shall not be terminated except by proceedings in accordance with section 51(6) of this chapter or section 2 of chapter XIIA. [Emphasis indicates changes made by the amendment.]
We do not imply that the standard for determining whether a father has established a custodial relationship under subsection 39(2) is the same as the standard for determining whether an established custodial environment exists under the Child Custody Act. The concepts are analogous, however.
These include “the father’s ability to provide support or care, the needs of the mother, the kind of support or care provided, the duration of the support, whether the mother impeded the father’s efforts to provide her with support, and any other factors that might be significant under the facts of the case.” In re Gaipa, supra at 86. | [
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Danhof, J.
Plaintiffs commenced suit against defendant insurance company, as beneficiaries of a life insurance policy on the life of the deceased, alleging that the death of the insured, their, son, was “accidental” under the terms of the insurance ■ policy, and therefore, they were entitled to an additional $5,000 arising out of the double indemnity provisions of the policy. It is to be noted that the defendant company before the institution of the suit paid the face amount of the policy which was $5,000.
A jury trial was commenced in Benzie county circuit court by the plaintiffs. At the close.of the plaintiffs’ proofs, a directed verdict was entered, in favor of the defendant. A motion for a new trial was made and denied, and from this denial the plaintiffs appeal.
On appeal all testimony must be viewed in the light most favorable to the plaintiffs. A review of the record discloses there was no error committed in granting the directed verdict. Since this was an action to recover the double indemnity benefits under the policy the burden of proving that the death of the assured was accidental rested on the plaintiffs, see Dimmer v. Mutual Life Ins. Co. of New York (1938), 287 Mich 168; Turner v. Mutual Benefit Health & Accident Association (1946), 316 Mich 6. The standard in this state is whether the death of the deceased was accidental, unforeseen, involuntary or unexpected, that is, not according to the usual course of things, or not as expected; and if a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means or accidental death. Turner, supra. Also, Furbush v. Maryland Casualty Co.. (1902), 131 Mich 234. See also Hooper v. State Mutual Life Assurance Company of Worcester, Massachusetts (1947), 318 Mich 384, which case quotes with approval Furbush, supra, stating on p 391,
“It is a well established rule that where insured is intentionally injured by another, and the injury is not the result of misconduct or an assault by the insured, but is unforeseen insofar as he is concerned, the injury is accidental within the meaning of accident policies.” (Emphasis supplied.)
It is obvious from the record that the plaintiffs had not sustained the burden of proof required of them. The deceased, knowing full well that he was wanted by law enforcement officers, armed himself, and put into operation the sequence of events which resulted in his death. It is clear that his death was not an unforeseen or unexpected happening; to the contrary, it was quite predictable that great bodily injury or death will result from such activity. Accordingly, the death of the deceased was not accidental.
Nor do we think that the court erred in refusing to allow the out-of-court statement of officer Alear to be introduced as substantive evidence. It is well established that prior inconsistent statements of a witness can be used only to attack the credibility of that witness. See Rosenberg v. Mageda (1930), 251 Mich 696; Gabrish v. Morse (1960), 361 Mich 39.
Affirmed, costs to the appellee.
Holbrook, J. concurred. | [
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Danhof, J.
This is a case of alleged malpractice. On August 26, 1962, plaintiff was struck in the knee by a metal object which had been hit and thrown off by a power lawnmower operated by her husband. She was taken to defendant hospital where the laceration was cleaned, sutured, and bandaged by an intern working with a general surgical resident physician.
During the following ten days plaintiff suffered swelling in her knee and complained of much pain. On several occasions she sought medical treatment from both defendant Bernard, her family doctor, and defendant Flint Osteopathic Hospital. Plaintiff was admitted to the defendant hospital on September 3, 1962, where it was discovered two days later that her knee joint was infected. While hospitalized, plaintiff was treated with antibiotics and physiotherapy. After three weeks in defendant hospital, plaintiff transferred to the University of Michigan Hospital at Ann Arbor where surgery was performed twice upon her knee and additional treatment was provided. As a result of the infection in her knee, plaintiff suffers permanent disability.
Plaintiff began this action against the present defendants and several others, no longer parties to the suit, alleging that their negligent treatment of her had resulted in her crippled condition. Following a jury trial, a verdict of no cause of action was returned for defendants. Plaintiff’s motion for a new trial was denied and she has appealed.
Plaintiff contends that the trial court committed prejudicial error by failing to notify counsel that one of the jurors had advised the court during the trial that he was a neighbor of the plaintiff.
Plaintiff has relied on DeCorte v. New York Central Railroad Company (1966), 377 Mich 317. However, it is distinguishable on the facts from the instant case. It involved the association of a circuit court officer with jurors both in and out of the courtroom which created the opportunity to influence their decisions.
More in point are People v. Kasem (1925), 230 Mich 278, and Citizens Commercial & Savings Bank v. Engberg (1968), 15 Mich App 438. In the Kasem case the trial judge had eaten at a restaurant at the same table with the jurors. The court said,
“While there is practical unanimity in the opinion of the courts that private communications between the court and the jury are improper, there is some conflict as to whether such action will nullify the verdict. We think the better holding, and that supported by the weight of authority, is that there is no presumption of a violation of duty on the part of the court, and that to constitute reversible error it must be made to appear that prejudice to the defendant resulted therefrom.”
In the Engl erg case a juror had untruthfully answered some questions on the voir dire questionnaire. The court said,
“However, upon discovery of a juror’s false statements after a trial and verdict, a moving party must present to the court something more than the mere fact of the falsity of the answers. There must either be a showing of actual prejudice (see People v. Schram [1966], 378 Mich 145) or it must be established to the satisfaction of the trial court that the moving party would have successfully challenged for cause or otherwise dismissed the juror in question had the truth been revealed prior to trial.”
In this case plaintiff has made no showing of actual prejudice or that she could have successfully challenged for cause simply because one of the jurors was a neighbor. Plaintiff does not contend that she and the juror in question were personally acquainted. Obviously, a neighbor could be favorably disposed, unfavorably disposed, or impartial. It may well have been a trial tactic of plaintiff’s counsel to accept the juror, hoping he would be favorably inclined towards plaintiff. See People v. McKee (1967), 7 Mich App 296, leave to appeal denied 379 Mich 785. We hold that the trial court did not commit prejudicial error when it failed to notify counsel that one of the jurors had advised him during the trial that he was a. neighbor of the plaintiff.
Plaintiff’s second argument on appeal constitutes an attack upon the “Michigan rule” as expressed in DeHaan v. Winter (1932), 258 Mich 293, and DeHaan v. Winter (1933), 262 Mich 192. The rule as stated therein is:
“If a medical witness refers to a textbook as Ms authority, then the book referred to may be used to contradict him.” (258 Mich 299.)
The reason stated for the rule is:
“that the attempt is to discredit the testimony of the witness by ‘hearsay testimony of the written or spoken opinions of other persons, whom the jury have no means of examining as to their learning, their honesty, or their sources of special knowledge’ (citation omitted), which attempt can be justified on neither principle nor difficulty of cross-examination.” (262 Mich 197.)
In discussing the question whether, and in what manner and to what extent, learned treatises may be used in the cross-examination of an expert witness, four lines of authority may be distinguished. 60 ALR2d 71, §§ 1, 2, p 79. The rule expressed in the DeHaan cases is the most restrictive of the four viewpoints.
Plaintiff does not contend that the trial court failed to follow the Michigan authority. Rather, plaintiff argues that the Michigan rule is unsupportable on the basis of justice or logic, and that the modern tendency is towards a less restrictive rule on the use of textbooks in cross-examining expert witnesses.
Even if we agreed with the plaintiff, she has not cited anything in subsequent opinions of the Michigan Supreme Court that would indicate an intention to modify the rule set forth in the DeHaan cases. Therefore, we hold that the trial court acted correctly in continuing to apply it.
The third issue concerns defendants’ allegedly improper trial tactics and final argument. After reviewing the lengthy trial transcript, it is clear this lawsuit was aggressively tried. The specific language of defendants’ counsel objected to on appeal was objected to at the trial, and the objections were sustained. Later the court gave cautionary instructions to the jury regarding the language involved, and plaintiff’s counsel indicated satisfaction with that portion of the instructions. Obviously, there is no merit in plaintiff’s position on this issue as the trial court’s rulings and instructions were in her favor.
Finally, plaintiff claims the trial court erred in refusing her the right to cross-examine Dr. Derderian as an agent of defendant Dr. Bernard, CLS 1961, § 600.2161 (Stat Ann 1962 Rev §27A.2161). The decision on this issue turns on whether plaintiff established an agency relationship between the two doctors. We hold that she did not. The testimony was that Dr. Derderian was acting as a consultant to Dr. Bernard. This case is distinguishable factually from the case relied on by plaintiff, Frazier v. Hurd (1968), 380 Mich 291. In that case one of the doctors assisted the other in performing an operation and was under his direction and control. No such indicia of an agency relationship were present in the instant case.
Affirmed, costs to defendants.
All concurred. | [
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] |
Per Curiam.
Defendant was convicted by the trial court upon waiver of a jury trial of unarmed robbery and sentenced to a prison term of 3 to 15 years.
Defendant claims error in plaintiff’s failure to indorse and produce certain alleged res gestae witnesses, i.e., the three or four other youths present at the time of the robbery. One of these witnesses was arrested at the same time as the defendant. He is therefore considered an accomplice to the crime. The rule requiring the people to indorse on the information and call all res gestae witnesses does not apply to accomplices. People v. Virgil Brown (1969), 15 Mich App 600. With regard to the other witnesses, there is no evidence that the plaintiff knew their names or whereabouts until defendant mentioned them on the witness stand. Apparently they ran from the scene of the crime before the arrival of the police. The people are under no obligation to indorse the names of unknown witnesses upon the information. People v. Todaro (1931), 253 Mich 367, affirmed on rehearing (1932), 256 Mich 427. MCLA § 767.40 (Stat Ann 1969 Cum Supp § 28.980).
Defendant’s second claim of error concerns the prosecutor’s allegedly prejudicial remarks during closing argument. Again no objection was made below. Examining the record we do not find any error in the closing argument.
Defendant’s third allegation of error arises out of the colloquy had before commencement of proofs:
“The Court: Any opening statement ?
“Mr. Poehlman [prosecutor] : Waive opening statement.
“Mr. Cohn: I will waive opening statement.”
The defendant now claims that each counsel waived his own opening statement but not opposing counsel’s and therefore a violation of GrCE 1963, 507.1 occurred:
“Before the introduction of any evidence, the attorney for the party who is to commence the evidence shall make a full and fair statement of his case and the facts he intends to prove. Immediately, thereafter, or immediately prior to the introduction of evidence by the adverse party, the attorney for the adverse party shall make a like statement. The opening statements may be waived with the consent of the court and opposing counsel.”
There was no objection below to this claimed omission. We find no violation of the spirit of the rule.
Finally, defendant claims there was insufficient evidence produced at trial to support a finding of guilt beyond a reasonable doubt. We disagree. Defendant’s claim is not supported by the record.
Affirmed.
MCLA § 750.530 (Stat Ann 1954 Rev § 28.798).
MCLA § 767.40 (Stat Ann 1969 Cum Supp § 28.980). | [
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Per Curiam.
Plaintiffs are owners in fee of a lot bordering on Sam-O-Set boulevard, which in turn borders on Higgins lake. The northerly edge of the road lies in the waters of the lake. Defendants placed a dock and boat hoist in front of plaintiffs’ property near the shoreline.
On October 25,1967 the circuit judge permanently enjoined defendants from placing. their equipment in front of plaintiffs’ property and declared plaintiffs to be owners of the riparian rights in front of said property. No appeal was taken from this judgment.
Hpon failure of defendants Polvi to remove the boat hoist they were found in contempt of court pursuant to a court hearing on June 4, 1968. The order of contempt was filed December 23, 1968 and the claim of appeal on December 33, 1968.
Defendants’ argument on appeal is that plaintiffs are not entitled to riparian rights. This is not the question before the court at this time. Seven months after a judgment is entered is too late to ask for reversal of a final unappealed judgment. OCR 1963, 803.1. Defendants may not at this time attack the judgment by appealing the contempt order.
The boat hoist not having been removed, the order of contempt is affirmed.
Costs to plaintiffs. | [
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Per Curiam.
Defendant was arrested for the crime of larceny by conversion, CL 1948 § 750.362 (Stat Ann 1954 Rev § 28.594), to which he pleaded not guilty. He later withdrew this plea and entered a plea of guilty to an added lesser count of attempted larceny in a building. After a sentence of 1-1/2 to 2 years, the defendant filed a motion for stay of execution, from a denial of which defendant appeals.
The defendant contends that the lower court erred in failing to follow the procedures enunciated in People v. Taylor (1968), 9 Mich App 333. In particular, the defendant contends that the trial judge failed to inquire sua sponte whether the plea, preceded by a confession, was freely made or if he was induced to make written admissions by the prosecutor’s unkept promises, thereby forcing his guilty plea.
Our opinion in People v. Taylor, supra, relied upon by defendant herein, is not authority for the procedures to be employed in guilty plea proceedings. See People v. Taylor (1968), 380 Mich 754. Presently, there is no requirement in guilty plea proceedings that the trial judge sua sponte inquire whether a defendant had previously given an out-of-court confession. The trial judge must comply with OCR 1963, 785.3. He did so here. See People v. Bartlett (1969), 17 Mich App 205, and People v. Barrows (1959), 358 Mich 267.
Defendant now, for the first time, and by way of a bare affidavit, alleges that he was coerced into making written admissions, which induced his plea. Defendant does not protest his innocence, but, in effect, only that his sentence is too harsh.
Defendant’s arguments are inappropriate. If, in fact, he did make written admissions in reliance upon the prosecutor’s unkept promises, he has not persuaded us that he suffered any detriment. The Court finds that the trial judge was unaware of any statements made by defendant, either at the acceptance of the plea or at sentencing. The record does not support defendant’s contention that he was influenced to plead guilty by the prospect or fear that these statements would be used against him at trial. See People v. Scruggs (1968), 14 Mich App 47, 49; People v. Mayfield (1969), 16 Mich App 680, 681.
Affirmed. | [
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Per Curiam.
By leave granted, defendant appeals Ms conviction and sentence for incest, MCLA § 750-.333 (Stat Ann 1954 Rev § 28.565). He was convicted on Ms plea of guilty, February 11, 1964. His appeal attacks the plea-taking procedure on several grounds, but we note only one because it mandates reversal.
Neither the plea transcript nor the sentencing transcript contains any questioning of defendant to establish the crime and his participation therein., GCR 1963, 785.3, and - MCLA § 768.35 (Stat Ann 1954 Rev § 28.1058) require such questioning; and failure to do so is reversible error. People v. Barrows (1959), 358 Mich 267.
Reversed and remanded for such further proceedings as may be required. | [
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Fitzgerald, J.
Defendant Jerome I. Smith was tried by a jury in recorder’s court of Detroit and found guilty of carrying a concealed weapon without a license. Smith was sentenced to serve three to five years in prison and has appealed.
Smith was tried with a codefendant, Willie Kirksey. The prosecution presented evidence that at approsimately 8:10 p.m. on January 11, 1968, police observed a white 1962 Oldsmobile make an illegal left turn at E. Outer Drive and Seven Mile road in Detroit. The officer ordered the car to stop and approached the driver’s side, while his partner proceeded toward the passenger side of the car.
The officer observed a shoulder holster strap on the person of the front seat passenger, Eonnie Ingram, and commanded the passengers to leave the car. A search of the car and passengers revealed that the driver of the car, Willie Kirksey, had a loaded .32 automatic pistol in his jacket pocket. A. loaded sawed-off .22 rifle and a machete were found under the front seat. Defendant Jerome Smith was seated in the back seat and no weapons were found on his person.
Willie Kirksey took the stand and testified that his friend, Jerome Smith, requested a ride for himself and Ronnie Ingram to the E. Outer Drive and Seven Mile road area. Kirksey maintained that when they arrived at Outer Drive, he left his jacket in the car and went in a drug store for some cigarettes. When he returned, and started driving, his car was stopped by the police. He denied all knowledge of the existence of the .32 automatic in his pocket. The car was owned by Kirksey’s stepfather and always contained the machete which was used for fish cleaning.
Ronnie Ingram testified that he did not know Kirksey before January 11, 1968. He supported Kirksey’s story that Kirksey went to buy cigarettes, and said that at that time he went to the car of Frank Dollars and bought three guns. Ingram maintained that neither Kirksey nor Smith knew of the purpose of the meeting with Dollars. Ingram stated that he hid the .32 automatic pistol in Kirksey’s coat pocket and concealed the other weapons in the car.
Police Detctive Dennis Darin took the stand and introduced a statement made by Ronnie Ingram after he was incarcerated. The statement reads as follows:
“On January 11, 1968, at 8 or 8:30 p.m., Willie Kirksey picked me up at my home. We drove over to the other boy’s house and picked him up, the guy we are locked up with, Jerome Smith. Willie was driving. I was sitting in the right front seat with Jerome Smith in the back. I drove [sic] Willie to drive me to 7 Mile and Outer Drive, East Outer Drive, where I was going to meet a Larry Dyer, a white male, about 31, who works in the apartment 9740 Chrysler’s Mack Avenue and buy some guns from him. We drove to 7 Mile and East ■ Outer Drive and parked in the parking lot. Larry was waiting for us and came over and got into our car, in the back, next to Jerome Smith. He pulled guns, two hand guns out of his trousers and a sawed-off rifle out of his coat. He offered to sell me one of the hand gums for $50. I told him I wanted to try them out so he gave me a shoulder holster to carry. "Willie took the other gun and the rifle was left in the back seat with Jerome Smith. We were going to go to my house to try these guns out when we were stopped by the police. I think Larry was going to follow us in his car. I don’t know what happened to him.”
And this was signed, “Ronnie Ingram.” Ingram, however, denied making this statement.
The jury found both defendants guilty as charged.
On appeal, defendant Smith asks whether the prosecution proved beyond a reasonable doubt all of the elements of MOLA § 750.227 (Stat Ann 1962 Rev § 28.424). The statute involved reads as follows :
Sec. 227. “Carrying concealed weapons. Any person who shall carry a dagger, dirk, stiletto or other dangerous weapon except hunting knives adapted and carried as such, concealed on or about his person, or whether concealed or otherwise in any vehicle operated or occupied by him, except in his dwelling house or place of business or on other land possessed by him; and 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, except in his dwelling house or place of business or on other land possessed by him, without a license to so carry said pistol as provided by law, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years, or by fine of not more than 2,500 dollars.”
The question of the interpretation of this statute, especially as it pertains to the carrying of weapons in cars, has appeared recently many times. The essential issue posed by most of these appeals is whether knowledge and participation are required in order to convict under the statute, or whether mere presence in a car witli an unlicensed weapon violates the statute.
The prosecution argues that since knowledge is not mentioned in the statute, none is required to find a defendant guilty. In People v. Williamson (1918), 200 Mich 342, 346, the Court stated the following:
“While there is a diversity of holdings in the different states, depending largely upon varying local statutes, the great weight of authority is to the effect that the intent, or purpose with which the weapon is carried, is not an element of the statutory offense. Of course, if the weapon was carried upon his person through restraint or ignorance, that would be a good defense to the prosecution. But nothing of that kind is claimed in the instant case. The following cited cases are in point upon this question: State v. Williams (1886), 70 Iowa 52; Walls v. State (1845), 7 Blackf (Ind) 572; Ridenour v. State (1879), 65 Ind 411; Cutsinger v. Commonwealth (1890), 70 Ky 392; Strahan v. State (1890), 68 Miss 347.”
Later the Court commented that “we agree with counsel that concealment implies an assent of mind and purpose, but the word is not a technical one”, at p 349.
In 1940 People v. Moceri (1940), 294 Mich 483, was decided in a manner which seemed to eliminate the need for knowledge. Defendant Moceri was arrested as he was entering a car which had a pistol on the floor. Moceri was convicted of carrying a concealed weapon. He appealed, arguing that his conviction was against the great weight of the evidence. The Court held that “The testimony has been examined and the conviction is not against the great weight of the evidence.” (At p 485.)
The Moceri decision was distinguished in People v. Petro (1955), 342 Mich 299. In Petro, a gun was found in a secret compartment of a car. Defendant was convicted of carrying a concealed weapon. On appeal, his conviction was reversed. The Court reasoned that the concealed weapons statute contained no statutory presumption as to knowledge that guns were present in a car. The Court found that it was impermissible to pyramid inferences upon inferences, (pp 307, 308.) In other words, the jury in Petro had to infer: (a) that defendants knew of the secret compartment, and from this inference it had to infer (b) that defendants knew that guns were in this compartment.
The Court proceeded to deal with the Moceri case:
“It is the duty of courts to reverse criminal convictions based upon an inference upon an inference in the absence of a statutory presumption. My Brother relies on People v. Moceri (1940), 294 Mich 483, to affirm the conviction. In that case the police officers found a revolver on the floor of the automobile occupied by the defendant. That was an established fact. There was an inference from such fact that defendant had knowledge of the presence of the revolver.” (At p 308.)
The concealed weapons statute does not punish presence in a car where a pistol is found. The statute’s thrust is “carrying concealed weapons without a license”. In other words, the point of the statute is to punish “carrying”. Thus, to convict one who is merely present in a car necessarily rests upon two inferences: (a) an inference that he knows a pistol is present; and (b) an inference that he is carrying the pistol. Therefore, even by showing that someone knew a pistol was present should not lead automatically to a conclusion that he was “carrying” the pistol.
An analysis of a similar question was offered in People v. Eaves (1966), 4 Mich App 457. Eaves concerned a conviction for unlawful possession of narcotics. The argument propounded by appellant was that she was improperly convicted because inference was added to inference to achieve a conclusion that she threw a package of heroin from an automobile. The Court disagreed, pointing out that sufficient facts were present to warrant a finding that. defendant threw the package from the car. Principal reliance was placed on People v. Harper (1962), 365 Mich 494.
In Harper, Justice Souris analyzed the meaning of the word “possession” in the illegal possession of drugs statute. He held that the legislature used, the words “possession” and “control” in their commonly understood sense, and not in a restricted technical sense. He concluded that:
“The marijuana was placed in Harper’s car with his consent, with his knowledge that it was marijuana, and with his intent that it be placed there to aid and abet Reich in his efforts to avoid police detection of its unlawful possession. Under these' circumstances, we cannot conduje other than that the record amply supported Harper’s conviction.”
A similar approach can be taken with respect to the construction of the word “carrying”. In its ordinary meaning, there must be evidence of participation in the act of carrying in order to convict under the statute.
Applying this to the case at bar, there is a strong case for affirmance. The statement of.Ronnie Ingram, supra, read by the detective, clearly indicates a common intent and participation on the part of all the men in the car. This is clear and convincing evidence that there was knowing participation in the commission of the crime. Furthermore, the court’s instructions to the jury indicated that the weapons had to be knowingly carried:
“It is sufficient to bring tbe offense within the statute, if you find that the weapon fairly comes within the class of weapons included in the statute and defendant knowingly carried it concealed on or about his person or in any vehicle operated or occupied by him, or them.”
The charge to the jury was correct, and there was credible evidence in the record that defendant, Jerome Smith, knowingly carried the weapons found in Kirksey’s car. Accordingly, the jury verdict is affirmed.
Defendant also suggests it was reversible error to continue defendant’s trial with 11 jurors.
It appears that juror number 3 called in sick and the trial judge then consulted with the attorneys. Both attorneys stipulated that they would proceed with 11 jurors. Defendant argues that this violated the holding of People v. Hill (1868), 16 Mich 351.
In the Hill case, Justice Christiancy held that a defendant could not in a criminal case waive or stipulate to a jury trial with less than 12 jurors. Subsequently the Hill holding was reconsidered in Attorney General, ex rel. O’Hara, v. Montgomery (1936), 275 Mich 504. In Montgomery, a juror became ill, and defendant’s attorney stipulated that he would continue with 11 jurors. Justice Potter ruled in a lengthy and learned opinion that the People v. Hill case was no longer the law. He held (at p 530) that:
“If defendant in a criminal case in a court of record may orally waive a jury entirely and be tried by the court, I can see no reason why in a court of record he may not waive a trial by jury of 12 and consent to be tried by a jury of 11.”
Justice Potter continued as follows (at p 539):
“Where all these safeguards are thrown around a defendant charged with crime, where he may vol untarily confess Ms guilt and such confession may be proved ag’ainst him on the trial; where he may waive a jury trial and enter a plea of guilty and such plea of guilty is made the basis of a judgment or sentence ; where the legislature is specifically authorized to provide for a jury of less than 12 persons; where he may waive, in a court of record, upon complying with the statute, the right of trial by jury in a criminal case; and can waive the right of trial by jury, in a court of record, by his own voluntary act, regardless of the statute, there is no danger in permitting defendant in a criminal case to waive the privilege of trial by a jury of 12 persons and consent to be tried by a jury of 11 persons. He need not enjoy the right of a speedy and public trial by an impartial jury if he does not want to. He may consent to be tried by the court, or he may consent to be tried by a jury of less than 12. Under circumstances such as arose in this case, the defendant may be better satisfied to proceed with a jury consisting of 11 jurors already sworn than to take his chances upon the discharge of that jury and the impaneling of another.”
See, also, 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 572, pp 736, 737.
The 11-juror question is answered in Attorney General v. Montgomery, supra, and does not represent error.
Affirmed.
All concurred.
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Bronson, J.
Defendant, Willard Wilson, was tried and convicted before a jury in the Genesee County Circuit Court of possession of a stolen vehicle. MCLA § 257.254 (Stat Ann 1968 Rev § 9.1954). Prom that conviction defendant appeals.
During the trial, the judge repeatedly disciplined counsel, often before the jury, questioned and cross-examined witnesses, often argumentatively, and “clarified” testimony. On appeal defendant questions whether the actions and comments of the trial judge precluded the jury from rendering a fair and impartial verdict.
The trial judge made a number of comments and asked a number of questions during the trial of defendant. The trial transcript is 250 pages long, and a cataloging of all the judge’s comments would serve no useful purpose. The issue is whether the trial judge’s comments or questions were of such a nature as to unduly influence the jury and thereby deprive the appellant of his right to a fair and impartial trial. People v. Cole (1957), 349 Mich 175, 200.
In matters of trial conduct the trial judge has great power and wide discretion. People v. Cole, supra, at 199. But this power is not unlimited. If an examination of the record reveals that the veil of judicial impartiality was pierced by the trial judge, the case must be reversed. People v. Bedsole (1969), 15 Mich App 459, 462.
In People v. Cole, at 196, the Court stated:
“American Jurisprudence says upon the point in question:
“ ‘The assumption by the trial judge of the burden of cross-examining the accused in a criminal case with the use of sharp language in framing the questions is reversible error.’ 3 Am Jur, Appeal and Error, § 1056, pp 606, 607.
“We do not intimate that a trial judge may not, in the interest of justice, participate in the questioning of a witness or witnesses. We believe, however, that hostile cross-examination of a defendant in a criminal prosecution is a function of the prosecuting attorney and that a judge before whom a jury case is being tried should avoid any invasion of the prosecutor’s role. People v. Egan (1928), 331 111 489 (163 NE 357); Smith v. State (1916), 12 Okla Crim 513 (159 P 940); Annotation, 84 ALR 1172; Annotation, 57 LRA 875, 882.” (Emphasis supplied.)
A careful reading of the transcript persuades us that the trial judge too frequently interjected her personality and views into the proceedings.
Trial judges who berate, scold, and demean a lawyer so as to hold him up to contempt in the eyes of the jury destroy that balance of judicial impartiality necessary to a fair hearing.
The language of the Canons of Professional Ethics and the Canons of Judicial Ethics is not ambiguous:
“It is the duty of the lawyer to maintain towards the courts a respectful attitude, not for the sate of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance. Judges, not being wholly free to defend themselves, are peculiarly entitled to receive the support of the bar against unjust criticism and clamor.” Canons of Professional Ethics, Canon 1.
“A judge should be courteous to counsel * * * and also to all others appearing or concerned in the administration of justice in the court.” Canons of Judicial Ethics, Canon 10.
“A judge may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto.
“Conversation between the judge and counsel in court is often necessary, but the judge should be studious to avoid controversies which are apt to obscure the merits of the dispute between litigants and lead to its unjust disposition. In addressing counsel, litigants, or witnesses, he should avoid a controversial manner or tone.
“He should avoid interruptions of counsel in their arguments except to clarify his mind as to their positions, and he should not be tempted to the unnecessary display of learning or a premature judgment.” Canons of Judicial Ethics, Canon 15.
In the present case the trial judge exceeded the bounds of judicial discretion, thereby denying defendant a fair, impartial, and orderly trial.
Reversed and remanded.
All concurred. | [
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] |
Fitzgerald, P. J.
This appeal arises from an action by Abner A. Wolf, Inc., to foreclose a $25,000 real estate mortgage on property owned by the defendant, Desmer G. Walch, and his wife, both of them hereinafter referred to as defendant. By amended complaint, plaintiff also sought to foreclose a $10,000 chattel mortgage. The proceeds of both mortgage foreclosures were to be applied to an open account for groceries in the amount of $61,456.77. In his answer, defendant denied that plaintiff was entitled to the relief sought, alleging that the chattel mortgage had merged into the real estate mortgage which had been discharged. Defendant also counterclaimed for damages for misrepresentation, breach of contract and wrongful interference with business.
Defendant made demand for a jury trial, whereupon a motion to strike was filed. The motion to strike was granted as to the foreclosure proceeding's. but denied as to the counterclaim. How ever, because of the common issue as to foreclosure and counterclaim, the entire case was tried to a jury which rendered a verdict of no cause of action as to both the claim and counterclaim, in effect leaving the parties in pari causa. The trial court adopted the jury’s advisory verdict on the foreclosure proceeding pursuant to GrCR 1963, 509.4, and judgment was entered on the two verdicts.
Abner A. Wolf, Inc., is a wholesale distributor of groceries and Desmer Gr. Walch is a retail grocer who once operated stores at three locations in the state of Michigan. Defendant became a regular customer of plaintiff in 1958. In consideration of merchandise advanced for purposes of stocking the Cadillac store in 1958, defendant executed the original $10,000 chattel mortgage. This mortgage was given to secure a certain “rule-off” account. The record indicates that Walch had made regular weekly payments on the account in the amount of $150. This account was only one of several which were maintained by Wolf in its dealings with defendant.
In December of 1958, defendant executed a note and real estate mortgage in the amount of $25,000, payable in weekly installments of $250. Under the terms of the new agreement, Walch was to receive an additional $15,000 in groceries and release of the chattel mortgage.
In February of 1960, plaintiff, without authorization, transferred $29,522.52 from Walch’s Big Rapids account to the rule-off account. The following March, $4,352.16 was transferred from the Mecosta account to the rule-off account. Defendant refused to sign a note for the additional amounts, but continued weekly payments on the secured account until, in his estimation, the mortgage had been paid off. Walch then sought a release on the mortgage and Wolf refused, stating that money was still owed on the account.
Several allegations of error are made, the most meritorious, and the one to which the Court will address itself, is whether the court erred in its finding that the real estate mortgage had been discharged. Defendant contends that regular payments were made on the rule-off account until the original balance was paid in full. He further contends that the rule-off account was the only one secured by the mortgage, that he never agreed to having new amounts transferred to it, and since he had paid the entire $25,000 owed on the secured account, he is entitled to a release of the mortgage. Plaintiff retorts that when new amounts were transferred to the secured account and payments applied thereto, no objection was raised by defendant and an account stated was created. Plaintiff further contends that the balance was not paid as alleged and that the real estate mortgage should be foreclosed.
An examination of the record indicates that although defendant did not verbally agree to the transfer of the Big Bapids and Mecosta accounts to the rule-off account, he did not object. There is unrefuted evidence that plaintiff submitted the rule-off account to defendant showing the unsecured amounts and no protest was lodged. Defendant continued to make weekly payments after the unsecured amounts had been transferred and at no time directed that these payments were to be applied only against the real estate mortgage.
In the case of Larsen v. Stiller (1955), 344 Mich 279, the Court stated:
“When an account is stated in writing by the creditor and accepted as correct by the debtor, either by payments thereon without demur or by failure with in a reasonable time to question tbe state of the account as presented, it becomes an account stated.”
Hence, an examination of the case cited and its application to the facts in the instant case lead to the conclusion that when the unsecured balances were transferred to the rule-off account and payments were made thereon, an account stated was created between plaintiff and defendant. Furthermore, it appears to be a well-established principle of law that “in the absence of directions from the debtor, the creditor may apply payments to debits as he pleases.” People, for the use and benefit of Michigan Electric Supply Company, v. Vandenburg Electric Company (1955), 343 Mich 87. Therefore, since defendant gave no instructions regarding application of the weekly remittances, plaintiff was free to apply them to the unsecured portion of the account.
The plaintiff has produced evidence which indicates that approximately $14,000 owed on the rule-off account is still secured by the real estate mortgage. This was the approximate balance of the secured account when Wolf elected to apply payments to the Big Rapids and Mecosta accounts. A complete review of the record indicates that the trial court erred in holding that the real estate mortgage had been discharged. While recognizing the weight ordinarily attached to the findings of the trial court, after reviewing the evidence, we must conclude that we would have reached the opposite conclusion had we heard the testimony as stated in Koltx v. Buechele (1967), 6 Mich App 538:
“In reviewing a chancery case de novo as we do, while heavy reliance is placed upon the findings of the trial court because of its superior opportunity to observe the witnesses, there comes the occasional case which upon a complete review of the record we can say that we would have reached the opposite con elusion, had we heard the testimony. Schultz v. McCarty (1931), 253 Mich 445.”
The result in the lower court regarding the counterclaim is supported by the record and is affirmed. Other issues raised on appeal need not be ruled on, save one. The court refused defendant’s counsel the right to cross-examine defendant’s accountant who ivas' called for cross-examination by the plaintiff under the statute. The court held that defendant’s examination of his accountant Avas “direct examination.” This is contrary to Michigan case law. Johnson v. Union Carbide Co. (1912), 169 Mich 651. On any retrial, cross-examination should be permitted.
Reversed and remanded for new trial.
All concurred.
MOLA § 600.2161, Stat Ann 1962 Rev § 27A.2161. | [
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Lesinski, C. J.
Defendant Terry Louis Bynum was tried and convicted of manslaughter by a Detroit recorder’s court jury. lie appeals alleging various errors. We affirm.
On the evening of November 21, 1966, Terry Bynum was riding in a ear with his brother-in-law, Rudolph Rogers. Apparently Rogers was searching for his wife. When she was discovered, Rogers jumped out of the car and began beating her. The defendant also left the car and then became embroiled in a fight with Rogers. During the altercation Rogers sustained fatal knife wounds. The police subsequently arrested Bynum and conveyed him to police headquarters where he made a statement. At trial the plaintiff offered the statement of defendant into evidence. A Walker hearing revealed that the defendant was advised of his constitutional rights in the language of a so-called Miranda card — -the Detroit police department’s “Constitutional Rights Certificate of Notification.” The trial court admitted the statement over defense counsel’s objection.
Defendant argues that the warnings given by the police interrogators failed to conform to the guidelines set down in Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974). The certificate reads as follows:
“DETROIT POLICE DEPARTMENT “CONSTITUTIONAL RIGHTS “CERTIFICATE OF NOTIFICATION
“I understand that:
“1. I have a right to remain silent and that I do not have to answer any questions put to me or make any statements.
“2. Any statement I make or anything I say can be used against me in a Court of Law.
“3. I have the right to have an attorney (lawyer) present before I answer any questions or make any statement.
“4. If I cannot afford an attorney (lawyer), one will be appointed for me by the Court prior to any questioning.
“5. I can decide at any time to exercise my rights and not answer any questions or make any statement.
“I understand that these are my rights under the law. I have not been threatened or promised anything, and I now desire and agree to answer any questions put to me or to make a statement.
“In the presence of:
/s/ Det. Thomas McManus /s/ Terry L. Bynum
“Witness Signature
/s/ Det. Henry LaHousse 11-21-66 4:15 a
“Witness Date Time
“B This certificate of notification was read to the suspect, and he/she had an opportunity to read it. Further, the suspect was given an opportunity to ask any questions that he/she might have concerning this certificate and his/her rights.
“□ Suspect is illiterate. He/she has had the rights under the law, as defined above, explained to him/her, and has agreed to answer questions or make a statement.
“□ Suspect can read and write. The rights, as defined above, have been explained to him/ her, and he/she has agreed to make a voluntary statement but has refused to sign this form.
“REMARKS 4:15 a 11-21-66 Bynum turned over a 3" Brown & white Brown handle knife our Evid tag # 633403 /s/ Det. T. McManus 11-21-66 4:15 a
“Date Time
/s/ Det. Thomas McManus, Homicide Officer DPD Unit
Homicide Bureau
“Place /s/ Det. Henry LaHousse, Homicide
Officer DPD Unit”
It is defendant’s contention that the certificate neglects to inform him of his right to have an attorney present during interrogation. Although the certificate could'be more precise in this regard, the import of warnings 3, 4 and 5 is to that effect. We find compliance with the Miranda rule. The statement was properly admitted.
'■ Defendant’s second claim of error concerns a statement the trial judge made during the Walicer hearing. After the police officer testified as to the circumstances surrounding the interrogation, the trial court ruled the statement admissible. However, the court then withdrew its finding with the following statement in order to allow the defendant to rebut the officer’s testimony:
“No. No, he has a right to take the stand. What he says can’t be used against him. If he takes the stand later it can be used, but if he doesn’t take the stand you can’t mention it at all. Get his answers here now, he can meet this now at the Walker hearing so I am going to withdraw my finding. If you want to give him an opportunity, we have voluntariness and also direct at the trial even though I ruled that it is voluntarily admissible, as I read the case he has not had the opportunity to. take the stand.”
The defendant argues that this was not a correct statement of the rule controlling the use to which Walker hearing testimony can be put. "We disagree. People v. Walker (On Rehearing, 1965), 374 Mich 331, states:
“We therefore release our jurisdiction of the cause and direct the recorder’s court to assume jurisdiction to make a determination upon a separate record upon the issue of the voluntariness of the confession only. At this hearing, we hold the defendant may take the stand and testify for the limited purpose of making of record his version of the facts and circumstances under which the confession was obtained. We hold further that by so doing defendant does not waive his right to decline to take the stand on trial in chief, if retrial is ordered. Neither does he waive any of the other rights stemming from his choice not to testify. This we believe comports with the apparent intention of Jackson (v. Denno [1964], 378 US 368 [84 S Ct 1774, 12 L Ed 2d 908]) to require the issue of the voluntariness of a confession to be determined completely apart from and independent of the consideration of that issue by the jury which is considering guilt or innocence under established procedures.”
The trial judge said nothing inconsistent with the above language. The defendant is under no obligation to take the stand at trial. However, once he does he is subject to cross-examination the same as any other witness. People v. Lloyd (1967), 5 Mich App 717.
Defendant’s third claim of error concerns the charge to the jury. No objections were raised below. People v. Keys (1968), 9 Mich App 482. However, we exercise our prerogative in searching for evidence of a clear miscarriage of justice. We find none here. Reading the instructions as a whole, we find they present a full, fair and impartial statement of the law of the case.
Defendant’s final claim of error is that the verdict was against the great weight of the evidence. Wo repeat what we stated in People v. Washington (1966), 4 Mich App 453, 456:
“ ‘The last assignment of error reiterates an incorrect standard of proof, asserting the verdict is against the great weight of evidence. The correct standard in a criminal appeal is evidence sufficient to convince beyond a reasonable doubt.’ People v. Williams (1962), 368 Mich 494.”
See, also, People v. Weems (1969), 19 Mich App 553. Reviewing the record, we find there was sufficient evidence, if believed by the jury, to justify a finding of guilt beyond a reasonable doubt. People v. Fred W. Thomas (1967), 7 Mich App 519.
Affirmed.
All concurred.
MOLA § 750.321 (Stat Ann 1954 Rey § 28.553).
People v. Wallcer (On Rehearing, 1965), 374 Mich 331.
See Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974).
Compare People v. Ansley (1969), 18 Mich App 659, where the record of the Walker hearing revealed Miranda warnings substantially less complete than those in the instant ease. | [
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Holbrook, J.
This ease originated as an eminent domain proceeding brought by the Michigan State Highway Commission against different lot owners in a subdivision in St. Joseph township pursuant to MCLA 1969 Cum Supp § 213.361 (Stat Ann 1969 Cum Supp § 8.261 [1]).
The evidence revealed that the particular area in question had been dedicated by the owners of the plat to the township of St. Joseph as a recreational area. A motion for review of necessity pursuant to MCLA § 213.368 (Stat Ann 1969 Cum Supp § 8.261 [8]) was filed by the township which charged the plaintiff commission with fraud or abuse of discretion in the taking. St. Joseph township properly asserted that property dedicated to the public use may not be taken under the eminent domain statute since it provides only for the acquisition of private property.
The trial court ruled that the property in question had been properly dedicated to the use of the public and accepted by St. Joseph township. It further ruled that the township was estopped from asserting its ownership since it had made no improvements to the area after they accepted the dedication. This last ruling, to be tenable, would necessarily be based on abandonment of the park area by the township. See, West Michigan Park Association v. Department of Conservation (1966), 2 Mich App 254, and 1 Callaghan’s, Michigan Civil Jurisprudence, Abandonment, § 4, p 3, et seq. The court further ruled that St. Joseph township had a justiciable interest under the statute and was a proper party to review the necessity of the taking. However, the trial court declined to rule on the question of whether the attempt to condemn the park property under the facts in the case would constitute fraud or abuse of discretion.
• The statute provides:
“At the hearing the court shall determine whether or not there has been either fraud or abuse of discretion in regard to such necessity. Appear from the findings of the court may be taken as in other civil cases.” MCLA § 213.368 (Stat Ann 1969 Cum Supp §8.261 [8]). (Emphasis supplied.).
Both the opinion of the trial court and the order appealed from show that the trial court expressly deferred consideration of, and reserved decision on, this question.
Since the trial court did not make a finding on this question, this Court cannot consider the judgment as a final judgment appealable as of right under QCR 1963, 806.1.
We therefore remand the cause to the trial court for further proceedings and a determination of this question. We do not retain jurisdiction.
No costs, a public question being involved.
All concurred. | [
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] |
Per Curiam.
This is a delayed appeal from a conviction of unarmed robbery. On August 23, 1965, the defendant withdrew a previously entered plea of not guilty to the charge of armed robbery and tendered a plea of guilty to the lesser, included offense of unarmed robbery. The trial court accepted the plea and sentenced the defendant to a prison term on September 7, 1965. Court-appointed counsel was present on both occasions.
The defendant contends that his plea is invalid because the trial court failed to conduct an inquiry into the nature of his acts to ascertain the truth of the plea. At the same time, he neither contends that the court’s failure to conduct an inquiry resulted in a “miscarriage of justice,” nor alleges “such facts as would, if true, substantiate a finding that there was noncomplianee (with GCR 1963, 785.3) which resulted in a miscarriage of justice.” See People v. Winegar (1968), 380 Mich 719, 733.
GCR 1963, 785.3, like MCLA § 768.35 (Stat Ann 1954 Rev § 28.1058) requires the trial court to “examine the accused * * * and * * * ascertain that the plea was freely, understandingly, and voluntarily made * * * .” Included in this requirement is an inquiry into the nature of the defendant’s acts to ascertain the truth of the plea. People v. Barrows (1959), 358 Mich 267. The trial court in the present case totally failed to conduct the requisite inquiry. In view of this failure, we reverse the conviction and remand the case for trial. People v. Barrows, supra; People v. Perine (1967), 7 Mich App 292.
We have reviewed the record and find nothing to support a conclusion that the court’s noncompliance with the rule and statute was merely a technical one. See People v. Winegar, supra; People v. Stearns (1968), 380 Mich 704; People v. Dunn (1968), 380 Mich 693.
Reversed and remanded.
MCLA § 750.530 (Stat Ann 1954 Rev § 28.798).
MCLA § 750.529 (Stat Ann 1969 Cum Supp § 28.797). | [
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] |
Lesinski, C. J.
Defendant Allen Thomas was convicted after a nonjury trial, of breaking and entering, MCLA § 750.110 (Stat Ann 1962 Rev § 28.305). On appeal as of right this Court remanded for the purpose of establishing a testimonial record detailing the reasons for the delay in bringing defendant to trial and a redetermination by the trial court of its previous denial of defendant’s motion to dismiss. The hearing was held, and the trial court reaffirmed its denial of defendant’s motion.
At the beginning of 1967, defendant was on parole from Jackson prison where he was serving a sentence for armed robbery. On February 2, 1967, defendant was arrested on the instant charge of breaking and entering. The arraignment on the warrant was held February 3, 1967, and defendant was released on bond February 4, 1967.
While free on bond defendant made a trip to Canada in search of employment, where he was detained and questioned by Windsor police on an unrelatéd matter. Following interrogation defendant was surrendered to the custody of his probation officer who had defendant placed in the Wayne County Jail as a parole violator. On March 17, 1967, he was returned to Jackson prison.
On May 22, 1967, a writ of habeas corpus was issued for the purpose of having defendant returned for trial on the breaking and entering charge. Approximately three weeks earlier, however, defendant had undergone exploratory surgery at the prison hospital. On May 29th, the hospital administrator sent a. copy .of a memo to police officials recommending that defendant not be released for at least 30 days.
No further action was taken on the case until January 18, 1968, when a second writ of habeas corpus was issued. Defendant was arraigned on the information on January 22, 1968 and tried on April 18th and 19th.
On January 31, 1968, following the arraignment, defendant filed a motion to quash the information and dismiss the case with prejudice. The motion was based on the “180-day” rule contained in MCLA §§780.131, 780.133 (Stat Ann 1969 Cum Supp §§ 28.969[1], [3]), which provide:
“Whenever the department of corrections shall receive notice that there is pending in this state any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this state a criminal offense for which a prison sentence might be imposed upon conviction, such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate and a request for final disposition of such warrant, indictment, information or complaint. The request shall be, accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of.the parole board relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail. * # #
“In the event that, within the time limitation set forth in section 1 of this act, action is not commenced on the matter for which request for disposition was made, no court of this state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”
The motion was denied.
The issue raised on this appeal is whether the 180-day period provided by statute had run prior to defendant’s being brought to trial.
Initially, it is necessary to determine on: what, date the period started running. The prosecutor argues that it can only start when the department of corrections sends the statutory notice. Where, as-in the instant case no notices were ever sent,, this-construction would effectively mean that the statu tory period never starts. The prosecutor’s position lias been repeatedly rejected in this Court. See People v. Haynes (1967), 5 Mich App 641; People v. Farmer (1969), 16 Mich App 148; People v. Parker (1970), 21 Mich App 399.
In People v. Parker, supra, at 399, we stated:
“The statute implicitly places a duty on the prosecutor to notify the Department of Corrections within a reasonable time that an untried warrant, indictment, information or complaint is outstanding against the defendant and a duty on that department to respond. A breach of these duties cannot be later raised to bar application of the statute and, thereby, frustrate the intent of the legislature.”
From the point that it is the prosecutor’s duty to act within a reasonable time and that breach of duty will not frustrate the intent of the legislature, it follows that where, as here, no notice was sent, the law will imply notice at the time when all necessary facts to give the proper notice are known to the prosecutor’s office.
The rules governing the running of the period were set forth in People v. Pendershot (1959), 357 Mich 300, beginning at 303:
“Clearly, if no action is taken and no trial occurs within 180 days, the statute applies. If some preliminary step or action is taken, followed by inexcusable delay beyond the 180-day period and an evident intent not to bring the case to trial promptly, the statute opens the door to a finding by the court that good-faith action was not commenced as contemplated by section 3, thus requiring dismissal. The statute does not require the action to be commenced so early within the 180-day period as to insure trial or completion of trial within that period. If, as here, apparent good-faith action is taken well within the period and the people proceed promptly and with dispatch thereafter toward readying the case for trial, the condition of the statute for the court’s retention of jurisdiction is met.”
The key, therefore, is continued good-faith action by the prosecutor, following “good-faith action * * * taken within the period.” See, also, People v. Parker, supra. Once the 180-day statutory period runs out, the courts of the state lose jurisdiction, unless “the people proceed promptly and with dispatch thereafter toward readying the case for trial.”
In the instant case the prosecuting authorities were notified on May 29, 1967 that defendant could not be released from the prison hospital for at least 30 days. {Supra, footnote 3.) Accordingly, this hospitalization would have terminated on or about June 28,1967, and the 180-day statutory period would have commenced to run and terminated on or about De cember 25,1967. However, defendant remained hospitalized until August 14,1967, as revealed by the evidentiary hearing to determine the reasons for not taking action to bring the defendant to trial before January 9, 1968. Defendant was not physically able to stand trial until the August date.
Under the circumstances of this case we find that to require the prosecutor to take action to bring the defendant to trial before August 14, 1967, would be to require the prosecutor to do a useless act. Consequently, we find that the running of the statute was tolled by defendant’s physical inability to stand trial and that the 180 days under the statute commenced to run as of August 14, 1967.
All action taken by the prosecutor after August 34, 1967 indicates good-faith action to bring the defendant to trial, taken well within the time limitation of the' statute.
Affirmed.
All concurred.
By order dated January 13, 1969, retaining jurisdiction.
At a hearing before the parole board, defendant was held to have violated 'probation and his sentence was continued.
The memo reads:
“‘Subject: 106732; Thomas, Allen;
“ ‘Mr. Thomas underwent exploratory surgery following gunshot wound to the abdomen. This surgery was accomplished May 3, 1967, by Doctor Mittler. The wound is not yet healed and is still draining.
“ ‘Therefore, it is recommended he not be released upon court order for at least another thirty days.
“ ‘John A. White, Hospital Administrator.’ ”
This conclusion was impliedly reached in People v. Haynes (1967), 5 Mich App 641, where the Court stated, beginning at 647:
“Query: Did the department of corrections have notice of the June 21, 1961 disposition of the case? If it had notice of the continuance, the department’s nonaction cannot be said to have tolled the statute. The attorney general’s opinion clearly sets forth the requirement that the department of corrections has the duty to keep the prosecutor’s office ‘posted’ on the inmate’s condition under such circumstances. If the other view is taken, %.e., that it was the duty of the prosecutor to keep the case active by making the appropriate inquiries, the warden’s letter of August 11, 1965, and the affidavit of the medical director both indicate a lack of any follow-up by the prosecuting attorney. Therefore, if the department of corrections knew of the continuance of June 21, 1961, the department’s failure to give the statutory notice cannot be held to have tolled the statute to the defendant’s detriment.
“If the department of corrections did not have knowledge of the disposition of the ease on June 21, 1961, it could not, of course, give the required statutory notice to the county prosecuting attorney. The affidavit previously discussed stated that the medical records indicate that no inquiry was made concerning a status report on Haynes’ heart; and, further, that had a writ of habeas corpus been issued, he would have been returned. The prosecutor in a ease which originated in his county is certainly charged with a duty to keep his own records up to date and to give the department notice of the proceedings if he is desirous of receiving information from the department pursuant thereto. If the prosecutor did not give the department the necessary information, it would follow that the department could not be expected to give him subsequent notice.”
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J. H. Gillis, J.
Defendant was convicted, after trial by jury, of assault with intent to do great bodily harm less than murder, MCLA § 750.84 (Stat Ann 1962 Rev § 28.279), and sentenced to prison. His motion for new trial was denied and he appeals. Three issues are presented.
Defendant first contends that the people’s evidence was insufficient to prove his guilt beyond a reasonable doubt. Specifically, defendant argues that there was no evidence of any intent to do great bodily harm as required by the statute.
The complaining witness, Johnny Thompson, testified that, together with John Goodin, his father-in-law, he went to defendant’s apartment in search of his wife. Goodin knocked on the door and, after someone opened it, both Goodin and Thompson walked into defendant’s apartment. After entering, Thompson testified that he stood approximately 10 feet from defendant, that he was unarmed, and that he made no threats. According to his testimony at trial, Thompson heard someone say, “Don’t come another step.” Thompson then started to turn around and, at that point, someone in the room picked up a gun and shot Thompson in both legs. Thompson was seriously wounded and fell to the floor.
John Goodin testified that, after knocking, he alone entered defendant’s apartment. Thompson remained outside in the hallway. After entering, Goodin testified that he saw defendant sitting on a couch. Defendant was holding the butt of a rifle; the rifle’s barrel was sticking up from under a coffee table in front of the couch. Goodin moved to defendant’s right. At this point, according to Goodin, Thomp son entered the apartment and defendant then fired the rifle from underneath the coffee table hitting Thompson.
The defendant testified on his own behalf. According to his testimony, the shooting occurred while he was sitting in' bed. The rifle with which Thompson was shot was, before Thompson’s entry, sitting upright on its stock at the side of defendant’s bed. Defendant testified that, when Thompson rushed into the room, he picked up the rifle, it discharged, and Thompson.was struck. .On cross-examination, defendant admitted shooting Thompson as soon as he entered the apartment. However, he testified that the gun went off accidentally.
In view of the conflicting claims as to what occurred, the trial court properly submitted the question of defendant’s guilt, including the question of defendant’s intent, to the jury. Cf. People v. Miller (1892), 91 Mich 639; People v. Conley (1895), 106 Mich 424; People v. Davis (1946), 315 Mich 342; People v. Counts (1947), 318 Mich 45. By his own testimony, defendant admitted shooting the complaining witness. The weapon used was deadly and Thompson was seriously injured. The act itself, as well as the means employed, provided evidence of defendant’s intent to do great bodily harm. See People v. Jassino (1894), 100 Mich 536; People v. Resh (1895), 107 Mich 251; People v. Miller, supra; People v. Counts, supra. Defendant’s conviction was supported by the evidence.
Defendant’s second allegation of prejudicial error concerns certain statements made by the prosecuting attorney on final argument to the jury. Defendant contends that the statements were of a factual nature, unsupported by the evidence, and that he was thereby deprived of a fair trial. We are satisfied that two of the allegedly prejudicial statements were legitimate inferences drawn from the evidence presented. People v. Morlock (1925), 233 Mich 284. An examination of the third statement when considered in light of the testimony presented indicates the statement was not so prejudicial as to require reversal. People v. Wise (1969), 18 Mich App 21.
Defendant next urges as ground for reversal that the trial court in imposing sentence relied upon an allegedly untrue statement contained in the probation report. After reading the sentencing transcript, we are satisfied that the court’s sentence was not influenced by the statement, even if untrue. The sentence was within the statutory maximum, and, therefore, we will not interfere with the trial court’s discretionary imposition of punishment. People v. Pate (1965), 2 Mich App 66.
Affirmed.
All concurred. | [
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Per Curiam.
This action was brought to recover damages for injuries allegedly sustained as the result of medical malpractice. All parties agree that the cause of action arose, if it arose at all, on December 27,1965. On December 26,1967, the complaint and summons were filed against the defendants in the Bay county circuit court, and later the same day copies of the complaint and summons were placed in the hands of a special deputy sheriff of Saginaw county for immediate service. On March 27, 1968, the special deputy filed a return showing that proper service had been made on the defendants that day. Subsequently the defendant Taheri moved for accelerated judgment, claiming that both the 2-year statute of limitations and the 90-day grace period allowed by MCLA § 600.5856 had run and that the action was therefore barred. The trial court granted the motion, and we affirm.
Under MOLA § 600.5856, the statute of limitations is tolled for a maximum of 90 days once the complaint and summons are filed and placed in the hands of an officer for immediate service. In computing the time allowed, both under the statute of limitations and the grace period, the first day is to be excluded and the last day included. G-CR 1963, 108.6. Thus, the statute of limitations began to run in the present case on December 28, 1965 and would have lapsed on December 27, 1967, but for the plaintiffs’ placing the complaint and summons in the hands of the deputy one day before, on December 26, 1967. Under G-CR 1963, 108.6, the grace period began to run on December 27, the day after the complaint and summons were placed in the deputy’s hands. Five days passed in December, 31 in January, and 29 in February, leaving only 25 of the 90 days for service. By midnight of March 25, 1968, the plaintiffs had only one day left in which to obtain service — the one day that remained under the statute of limitations. Service was not obtained, however, until two days later, on March 27. By then the statute of limitations had run.
The trial court was correct in holding that service was obtained after the “maximum tolling period” allowed by the Revised Judicature Act had expired. See Sera v. Eberlein. (1968), 11 Mich App 139.
Affirmed.
MCLA § 600.5805 (Stat Ann 1962 Rev § 27A.5805).
(Stat Ann 1962 Rev § 27A.5856). | [
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Levin, P. J.
The defendant was convicted of breaking and entering upon his plea of guilty and, on November 29, 1967, was placed on probation for three years. He was later charged with violating conditions of his probation, pled guilty and was sentenced to serve a term in state prison. He now appeals.
The alleged probation violations were that the defendant had failed to report to his probation officer in the months of May and September, 1968 and that he was $14 in arrears in paying court costs.
At a hearing on November 25, 1968 the court explained the probation violation charges and the following colloquy then ensued:
“The Court: And do you understand that if the terms of the probation order are violated that a person, instead of being allowed to remain in the community, generally is sent to prison?
“The defendant: Yes.
“The Court: And do you understand, that is, if not a probability, at least a possibility in this case? Do you understand that?
“The defendant: Yes.
“The Court: Now, understanding the seriousness of this matter, is it your wish that you be represented by an attorney in this matter?
“The defendant: No.”
The defendant then pled guilty and the court thereupon revoked probation; sentencing was deferred.
Two days later, November 27, 1968, the defendant appeared in court for sentencing. On being asked by the judge whether he wished an attorney, he again replied in the negative. The judge then said that the defendant seemed to be performing well on probation until May, 1968,
“The Court: '* * * But then apparently something happened, you became unemployed, and you started a series of threats and other problems with your family. And, although the technical violations of your probation for wbieb you are before the court today are not serious in and of themselves, they, coupled with your actions since your being placed on probation, seem to indicate that you are not now, at least, a good probation risk.
“Is it true that you have become unemployed since we put you on probation?
“The defendant: For the last month I have been working with my brother-in-law, Art’s Auto Collision.
“The Court: That has not been a steady employment though, has it?
“The defendant: (No audible response)
“The Court: That has not been steady employment. And you have had some problems with your father and your mother, haven’t you?
“The defendant: Tes.
“The Court: Well, if you will recall, at the time I put you on probation I told you that we would hope you wouldn’t violate your probation; and I said at that time that I make this guarantee to you: that if you do violate the terms of your probation, it won’t be any question about what you would get, some prison time.
“And, unfortunately for you, you have not kept your part of the bargain; and I am going to have to keep my part of the bargain.”
The defendant was then sentenced to serve nine to ten years in state prison. For reasons we now state we reverse and remand for a new hearing.
Although the judge told the defendant before he waived counsel and pled guilty that probation violators generally go to jail and that this was a serious matter, he also told the defendant that a jail sentence was a possibility, not a probability, in his case. No doubt the defendant was greatly relieved to hear this, particularly if he recalled the judge’s “guarantee” (see footnote 3) that if he violated the terms of probation he would be sentenced to the penitentiary.
It also appears that the judge did not view the charged violations as serious; he thought they were “technical violations.” The factors which tipped the scales were the defendant’s unemployment and arguments with his parents. It was not, however, a condition of probation that the defendant obtain and retain employment and that he avoid arguments with his parents.
Under the statute (MOLA § 771.4 [Stat Ann 1954 Rev § 28.1134]) a probationer is entitled to a written copy of a charge of probation violation and to a hearing thereon. Only evidence relating to the charge may be considered and on the basis of that evidence alone is the decision whether to terminate or revoke the probationary order to be made.
We recognize that the judge’s announcement, at the conclusion of the first hearing, that he was revoking the defendant’s probation was made before he became aware of the defendant’s unemployment and arguments with his parents. That announcement was, however, clearly provisional. We say this because a decision to revoke probation is tantamount to a resolve to jail the defendant in the state penitentiary; there is no middle ground — either a defendant is on probation or in jail. And we cannot ascribe to the judge a final resolve at the conclusion of the first hearing to sentence the defend ant to the penitentiary under the circumstance that he had just minutes before advised the defendant that a penitentiary sentence was a possibility, not a probability, and the defendant waived counsel and pled guilty immediately following that statement of the judge.
"We are, therefore, persuaded that the announced decision, at the conclusion of the first hearing, to revoke probation was a nominal or provisional, and not a final, revocation, and that the final decision to revoke, to jail the defendant, was based on charges of acts which the order of probation did not require the defendant to refrain from committing. Furthermore, such charges were not stated in the notice of probation violation or mentioned in open court before the defendant pled guilty.
We recognize that in sentencing a judge may take into consideration factors other than those upon which an accused person’s conviction is based. We can also appreciate, however, that an accused person who has been “guaranteed” a jail sentence if he again appears in court might well conclude, in the few seconds that intervened in this case between the judge’s statement and his queries as to whether the defendant wished to waive counsel and plead guilty, that his salvation lies in placing himself in the judge’s hands; that he might turn a possibility of a jail sentence into a probability of a jail sentence if he shows a lack of confidence in the judge’s evaluation and prediction by demanding counsel and contesting the probation violation charges.
While a lawyer would realize that the judge’s statement was not a promise of probation, a frightened, untrained and possibly unsophisticated defendant groping for straws is likely to be misled by any intimation from a judge who, even the untutored know, holds in his hands a prisoner’s fate. A waiver of counsel and plea of guilty immediately following even a guarded intimation from a judge that the defendant may anticipate leniency is suspect.
In this case we think the defendant should be given another opportunity to demand counsel and to plead to the probation violation charges. Accordingly, he is remanded to the custody of the sheriff of Genesee county for further proceedings on the probation violation charges lodged against him.
Reversed and remanded.
All concurred.
MOLA § 750.110 (Stat Ann 1962 Rev § 28.305).
As a condition of probation the defendant was required to pay court costs of $272, $72 was to be paid at the rate of $2 per month and the balance within two years. A statutory condition of probation required that he report to his probation officer monthly. MCLA § 771.3 (Stat Ann 1954 Bey § 28.1133).
At the time the defendant was placed on probation the judge said: “I can make this guarantee to you, that if you do violate the terms of probation, there won't be any question but you will get some prison time.”
It appears from the record that the defendant, who is charged with having arguments with his parents, is a married man with children of his own.
See In re Bobowski (1946), 313 Mich 521, 523; People v. Wood (1966), 2 Mich App 342, 348.
See People v. Sutton (1948), 322 Mich 104, 111; People v. Davenport (1967), 7 Mich App 613; cf. People v. Wood, supra, p 348.
No additional information regarding the nature of the charges against the defendant or his history on probation was furnished the judge in the intervening minutes between the judge’s statement that prison was a pssibility, not a probability, and his statement revolting probation upon defendant’s plea of guilty.
See People v. George (1947), 318 Mich 329, 332; People v. Pippin (1946), 316 Mich 191, 196; People v. Sutton, supra, p 109.
The court may, indeed, revoke a probationary order if it becomes satisfied that “the probationer is likely again to engage in an offensive or criminal course of conduct, or that the publie good requires revocation or termination of probation;” furthermore, a probation order may be revoked for any “type of antisocial eonduet or action on the part of the probationer which shall satisfy such court that revocation is proper in the publie interest.” MCLA § 771.4 (Stat Ann 1954 Rev § 28.1134). But, if that is the basis upon which a probationary order is to be revoked, the probationer must be notified that it is so charged and a hearing on that charge must be held. See People v. Sutton, supra, p 111; People v. Davenport, supra. | [
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Quinn, J.
Defendant was convicted by jury verdict of possessing or having under his control marihuana, contrary to MOLA § 335.153 (Stat Ann 1957 Rev §18.1123). He was sentenced and he appeals.
About 4:50 a.na., on May 27, 1968, an automobile owned by defendant but driven by one Buchanan pulled over to the side of the road and stopped. A patrolling police ear pulled in behind. The driver of defendant’s vehicle came to the police car, produced his driver’s license, and when asked for the vehicle registration certificate, he said defendant was the owner. Defendant was still sitting in his automobile.
As the officer approached defendant’s automobile to obtain the registration certificate, he saw defendant bend down toward the floor on the driver’s side. The officer directed his flashlight through the open door on the driver’s side and to the area toward which defendant had bent down. The light disclosed a clear plastic bottle with a white top. On observing the contents of the bottle, the officer thought it contained marihuana and arrested defendant. Subsequent examination determined that the contents were marihuana. Defendant stipulated that he had no license as required by the statute cited above.
Defendant asserts four alleged reversible errors, the first of which is that there is no proof in the record that defendant knew of the presence of marihuana and that such knowledge is a prerequisite for a finding of possession. The marihuana was found in defendant’s car in an area thereof toward which defendant was seen to bend down. From these facts, the jury could infer knowledge of the presence of the marihuana, People v. Eaves (1966), 4 Mich App 457. On the basis of Eaves and the foregoing facts, defendant’s possession of marihuana was established. Possession without a license is a violation of the statute, People v. Eaves, supra, People v. Harper (1962), 365 Mich 494, and it is admitted defendant had no license.
Defendant next contends that the trial court’s failure to instruct the jury on the element of knowledge discussed in the preceding paragraph constitutes reversible error. The trial court read the information to the jury. The information was couched in the language of the statute. This gave the jury the basic elements of the crime charged, People v. Kruper (1954), 340 Mich 114. No request was made for an instruction on knowledge, and defendant was afforded an opportunity to object to the charge as given. He not only failed to object, he indicated approval of the charge as given. The alleged error relating to instructions is not before this Court. GrCR 1963, 516.2.
During cross-examination of a police officer by defense counsel, the following testimony was given:
“Q. Do you know Ronald Buchanan?
“A. Yes, I do.
“Q. How long do you know him?
“A. I have known him since that time I arrested him.
“Q. Did you know him before that time after you found out his name?
“A. No, I did not. Did I know of him?
“Q. Yes, of him?
“A. I knew of him, yes.
“Q. How did you know about him?
“A. I had a teletype stating that the subject was—
“Mr. Chalfin: That’s all.
“The Court: Just a moment {to witness) answer the question.
“The Witness: I had a teletype stating that Mr. Bnchanan and Mr. Cardenas were seen in the area of several B&E’s in Birmingham.
“Mr. Chal fin: I’ll object. Your Honor, I will call for a mistrial on that.
“The Court: Denied.
“Mr. Chal fin: I didn’t ask anything about this man here.
“The Court: Denied. You asked the question.
“Mr. Chal fin: I asked the question about Ronald Buchanan and not Arthur Cardenas.
“The Court: Just a minute. I want you to show some respect for the court.
“Mr. Chal fin: I apologize.
“The Court: I want you to be quiet for just a minute while I tell you this. You asked him how he knew about this other gentleman, and he told you how he knew. You asked for it. Motion for mistrial is denied. Please proceed.”
Later this witness testified that he had no knowledge of any formal charge being made against defendant on any breaking and entering and no proof of any such charge appears in the record.
Defendant claims it was reversible error for the trial court to deny a mistrial. In support of this contention, defendant cites People v. Askar (1967), 8 Mich App 95, and People v. Camel (1968), 11 Mich App 219.
We find neither case applicable to the case before us. Both Ashar and Camel involve proof of former offenses and such proof was elicited on direct examination by the prosecuting attorney from witnesses for the people. Plere there was no proof of a former offense and the testimony urged as a basis for mistrial came in on cross-examination by the defendant in response to a question asked by defendant.
The objection made- by defendant wa's proper and it should have been sustained. The trial court should not have forced the witness to answer. -However, it does not affirmatively appear on this record that either or both errors resulted in a miscarriage of justice, and we hold they were harmless errors. MCLA § 769.26 (Stat Ann 1954 Rev § 28.1096), GCR 1963, 529.1.
Finally, defendant seeks reversal because he contends the prosecution failed to prove that the substance found in his car was not the exempt portion of the marihuana plant. This contention is based on the statutory definition of marihuana, MCLA § 355.151(2) (f) (Stat Ann 1969 Cum Supp § 18.1121 [2] [f ]):
“All parts of the plant Cannabis - Sativa. The term ‘Cannabis’ as used in this act shall include all parts of the plant Cannabis Sativa L., whether growing or not, the seeds thereof, the resin extracted from any part of such plant, and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds, or resin; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from seeds of such plant, other compound, manufacture, salt, derivative, mixture or preparation of such mature stalks, except the resin extracted therefrom, fibre, oil, or cake, or the sterilized seed of such plant which is incapable of germination. This definition is to include marihuana and all allied plants ■ of the Cannabis family which are habit forming.”
A qualified expert testified that the substance here involved was marihuana. This was sufficient for the admission of the substance in evidence absent an objection to its admission on the ground the people had failed to prove the ' substance was not from the exempted portion of the plant. ■ No objec tion was made to the admission of the substance in evidence.
Affirmed.
All concurred. | [
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] |
T. M. Burns, J.
In 1962, the City of Madison Heights, pursuant to statutory authority MOLA §§ 125.32, 125.36, 125.37 (Stat Ann 1958 Rev §§ 5.2992, 5.2996, 5.2997), hired a land use planning firm which made a two year study of the city’s land requirements. This resulted in the adoption of the present zoning ordinance. Plaintiff S. B. S. Builders, Inc., claims to be the titleholder of three lots within the city. These lots are located in an R-2 residential zone having a minimum lot width requirement of 60 feet. Plaintiff’s lots are all 40 feet in width and were platted before the present zoning ordinance became effective. Plaintiff Seligman & Associates, Inc., a residential builder, was refused building permits on the three lots because of § 10-.503(2) of the zoning ordinance. A request was made to the Zoning Board of Appeals for a variance from the ordinance requiring the lots to be combined to comply with the 60-foot minimum provision. The request was denied, and plaintiffs brought a mandamus action in the Circuit Court of Oakland County for a judgment directing the Madison Heights’ building inspector to issue building permits for residential construction on the three 40-foot lots. The parties appeared for trial on October 31,1968. At that time, the trial court suggested that the case be settled and accordingly adjourned the trial date to November 7, 1968. "When the parties were unable to reach "a settlement, the court, upon its own motion, ordered that the writ of mandamus be issued on November 27, 1968 granting plaintiffs the relief they sought. Defendant objected to the judgment being entered without any testimony taken, the viewing of any exhibits or affording it the right of trial. Objection was also taken to the court acting on its own motion without the plaintiffs having made a motion for summary judgment. On December 4, 1968, the trial court filed an opinion wherein § 10.503(2) of the city’s zoning ordinance was found to be unconstitutional.
The trial court found that although the burden of proof was on plaintiffs, no proof was necessary as he considered the ordinance unconstitutional on its face. He said:
“By the terms of defendant’s ordinance, if five property owners each owned a single 40 foot lot within a subdivision, whether or not adjacent to each other, each could conceivably build an individual home upon his lot. However, if one man owned all five lots, he could be forced to combine the lots and build not more than three homes, each of which would have to be a minimum of 60 feet in width. Unless one or more of the sites were larger than 60 feet in width, 20 feet of land would be useless. There is no rational or legal justification for such an ordinance which deprives an owner of a substantial portion of his property solely because he happened to own more than 1 lot at the date upon which the ordinance was passed.”
In Shacket v. Township of Highland (1969), 15 Mich App 543, this Court was faced by almost the identical situation as here. The trial court in Shachet, supra, had issued a writ of mandamus peremptorily without taking testimony on the basis that as a matter of law the ordinance was invalid on its face. The Court in Shacket, supra, p 544 said:
“The ordinance * * * may or may not be valid, depending on whether such a prohibition, as it relates to plaintiff’s land, is reasonable or unreasonable. This determination is impossible without evidence.”
The trial court here found that, “[t]here is no rational or legal justification” for the ordinance. Tet, as in Shacket, supra, whether there is a “rational or legal justification” depends upon whether the restriction has some reasonable relationship to the “health, safety, or general welfare.” Such a determination cannot be made without a thorough examination of all the evidence. Shacket v. Township of Highland, supra. Therefore, the trial court erred in granting the writ without taking evidence.
On remand the plaintiffs must establish that the ordinance has no reasonable relationship to the health, safety, or general welfare of the city’s residents, or mandamus may not issue. See Rottman v. Township of Waterford (1968), 13 Mich App 271.
Further, under § 10.702(1) of the defendant’s zoning ordinance building permits are issued by the building inspector. This being an action in mandamus the building inspector is a necessary party and should be added as a party defendant. See Boron Oil Company v. City of Southfield (1969), 18 Mich App 135, 144.
Because of our decision herein the other issues sought to be raised on appeal require no further discussion.
Reversed and remanded for hearing. Costs to defendant.
All concurred.
§ 10.503(2) of Madison Heights’ zoning ordinance provides: “Nonconforming Lots: In any district in which single family dwellings are permitted, notwithstanding limitations imposed by other provisions of this ordiance, a single family dwelling and customary accessory buildings may be erected on any single lot of record at the effective date of adoption or amendment of this ordinance, provided such lot is located in a block on which 51% or more of the lots on both sides of the street are occupied by single family dwellings. Where 51% or more of the existing homes are built upon a larger lot ot; combination of lots, a building permit will not be granted for a lot of less area or width than the size of the lots of the majority of the dwellings existing at the time of passage of this ordinance. In those areas where less than 51% of the lots are built upon in a one block area, the provisions regarding the use of combined lots shall apply. Permission to use a single nonconforming lot as herein provided shall apply even though such lot fails to meet the requirements for area or width; or both, that are generally applicable in the district, provided that yard dimensions and other requirements not involving area or width or both, or the lot shall conform to the regulations for the district m which the lot is located. If two or more lots or combinations of lots and portions of lots with continuous frontage in single ownership are on record at the time of passage or amendment of this ordinance, and if all or part of the lots do not meet the requirements for lot width and area as established by this ordinance, the lands involved shall be considered to be an undivided parcel for the purposes of this ordinance, and no portion of said parcel shall be used or occupied which does not meet lot width and area requirements established by this ordinance, nor shall any division of the parcel be made which leaves remaining any lot with width or area below the requirements stated in this ordinance,” (Ord. $271.) (Emphasis supplied.) | [
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] |
Y. J. Brennan, J.
The Starlight Room of Marco’s Restaurant in Escanaba is tiered, with tables on each tier. On May 19, 1963, plaintiff Esther Jackson was attending a beauticians’ clinic in the Starlight Room when she tripped on a step of the tiered floor, fell, and injured herself. She and her husband subsequently brought this action for damages against the owners of the restaurant and the Michigan Cosmetologists Association, the sponsors of the clinic. The jury returned a verdict of no cause of action, and the plaintiffs appeal. Hereinafter, plaintiff, singular, refers to Esther Jackson.
Several of the many issues raised on this appeal merit no discussion. Those issues that do merit some discussion deal both with the evidence adduced and the instructions given below.
On direct examination of defendant Remo Sabuco, the following exchange took place:
“Q. I show you what has been now marked defendants’ exhibit 4 and ask you if you will tell me what it is.
“A. This is a piece of metal edging of exactly the same type used on the tiers in the Starlight Room. This is not a piece of the same molding but it is a piece identical in every way that I could tell with one exception that the brown plastic screw covering was black in the case of the Starlight Room.
“Q. You’re talking about this piece of plastic that comes and goes?
“A. Right.
“Q. The trim thing that covers the screws?
A. Yes, it was black in the case of the Starlight Room, otherwise it is identical as could be.
“Mr. Bridges: {defendant’s counsel) I show this to plaintiffs’ counsel and defendant’s counsel. I move the introduction of defendants’ proposed exhibit 4 into evidence.
“Mr. Fitsharris: {plaintiffs’ counsel) I object [to] the admission on the grounds it is not a piece of the identical stripping that was used there at the time of the accident. This in fact has an entirely different formation with an insert which is entirely different from what my understanding of the large piece of stripping was. The other stripping was entirely metal. This appears to have some kind of a soft substance on the surface of it.
“The Court: The objection is overruled and the exhibit is admitted into evidence. I think your objection goes to the weight rather than to the admissibility, Mr. Fitzharris. The testimony of the witness is that it’s identical to the stripping that was there in his place on the Starlight Room steps with the exception of the coloring of the plastic insert, is that correct?
“The Witness: That’s exactly correct, your Honor.
“The Court: I’ll admit it in evidence.”
Plaintiffs contend that the “surprise” exhibit was introduced in violation of GCR 1963, 301.1(7) and that its introduction was prejudicial. GCR 1963, 301.1(7), we note, requires the production at the pretrial conference of “all proposed exhibits in the possession of the attorneys in support of the main case or defense” and admission of “the authenticity of such exhibits whenever possible.”
The allegation of surprise and prejudice is raised for the first time on appeal. No attempt was made at trial to call the court’s attention to the fact that the pretrial summary did not contemplate the introduction of the exhibit. More importantly, there is no showing as to how this omission might result in prejudice to plaintiffs. See Pan-American Casualty Company v. Reed (CA 5, 1957), 240 F2d 336.
“The admission in evidence of exhibits which were not referred to and included in a pretrial order was a matter within the discretion of the trial court.” Millers’ National Insurance Co., Chicago, Ill. v. Wichita Flour Mills Company (CA 10, 1958), 257 F2d 93, 98, citing Globe Cereal Mills v. Scrivener (CA 10, 1956), 240 F2d 330.
See also Bednarsh v. Winshall (1965), 374 Mich 667. The record reveals no abuse of discretion.
Further error is alleged regarding this exhibit in that the exhibit was not part of the same edging on which plaintiff tripped. Although it is true that the exhibit was not part of the edging in question, the exhibit was clearly identified as a facsimile except for the color.
“We do not think there was any error in the use of the model which was not a facsimile in every detail. A photograph or model is used only as a ‘nonverbal mode of expressing a witness’ testimony’ (3 Wigmore on Evidence [3d Ed.], p. 175, § 790), and as a testimonial aid it may often help the jury to understand the evidence ‘more clearly than they could from the words of any witness.’ The proposed aid must be sponsored by a witness who uses it to relate his personal knowledge or scientific skill and understanding. The trial court determines, within discretionary limits, the preliminary question oi whether the model is a fair representation of the ultimate fact. When the correctness of the illustrative representation is disputed, if there is room for finding in favor of the offering party, the trial court may admit it and submit the question to the jury for ultimate determination.” Finch v. W. R. Roach Co. (1940), 295 Mich 589, 595, 596. (Citations omitted.)
We find no error in allowing the use of this exhibit.
Error is also alleged in that defense counsel was permitted to make a blackboard sketch of the Starlight Room while cross-examining plaintiff. In response to plaintiffs’ objection, the trial court ruled, “It is understood it is only a drawing and he is not trying to make it to scale.” The use of visual aids of this type is left to the trial judge’s discretion. McCormick, Handbook of the Law of Evidence, p 386, citing Finch v. W. R. Roach Co., supra. Any alleged inconsistencies or inaccuracies in the sketch were raised in the presence of the jury. There was no abuse of - discretion.
Plaintiffs allege additional error in the introduction of photographs of the Starlight Room which were concededly taken sometime before the accident.
The pretrial summary stated:
“Defendants Remo and Ida will have for introduction in evidence certain photographs which are as follows: Defendant R & I Sabuco exhibit no. 1, photograph of the Starlight Room, and exhibit no. 2, a photograph of the same room. These two photographs have certain penciled writings on the back which will be removed prior to trial. The plaintiffs’ counsel reserves the right to object to these photographs and desires to exhibit the same to his client.”
The record reveals the following:
“Mr. Bridges: I move the admission of defendants’ exhibit 2 which was admitted at pretrial.
“Mr. Fitsharris: No objection.”
The failure to object precludes our review.
In cross-examining the plaintiff, defense counsel asked her, over objection, whether she was receiving social security retirement benefits and, if she was, whether the benefits would be curtailed if her income exceeded a certain amount. Plaintiff answered “yes” to both questions. Plaintiffs now contend that defendants’ inquiry into the receipt of social security benefits violated the rule that evidence of money or benefits received from a collateral source may not be introduced by a tortfeasor to effect a reduction of the damages he must pay. This contention is without merit. The benefits in question were specifically labeled retirement benefits and there was no intimation that the payments were intended to compensate plaintiff for her injuries. Moreover, on direct examination, plaintiff had testified as follows:
“Q. Why did you sell your business?
“A. Well, because I felt I couldn’t keep up the schedule like it should be done, a place of that size, and the income was not sufficient when it was operating and it’s so hard to get the kind of help that you need in a place of that kind when you’re not able to be there to help.
“Q. Would you have sold your place of business if it hadn’t been for your physical condition?
“A. No, because I enjoyed my work very much.
* * #
“Q. How much profit were you deriving from your personal skill and professional knowledge prior to the accident?
“A. Prior to the accident?
“Q. Yes, say by the week.
“A. Well, I was averaging around $100 a week.
“Q. For the first six months after the accident you didn’t work at all?
“4, No,
“Q. So you had no income?
“A. No.
“Q. In the six months following your return to work in November, 1963, how much profit were you deriving from your personal skill and professional knowledge?
“A. Not very much.”
It was defense counsel’s avowed purpose, in light of the above testimony, to show that the alleged decrease in plaintiff’s earnings and the eventual sale of her business were precipitated, not by the accident, but by her reaching the age of retirement. In other words, the defense sought to show that plaintiff scaled down her business to keep her outside income within the limit permitted recipients while they are receiving maximum benefits. Defense counsel restricted his offer of proofs accordingly, and, in light of plaintiff’s testimony, his line of inquiry was proper.
Additional error is alleged with respect to the taking of the deposition of the physician who treated plaintiff after her accident. The circumstances attending this allegation are somewhat unique. Pursuant to GOB, 307.1, defendants were notified of plaintiffs’ intention to take the deposition:
“You are each hereby notified that the plaintiffs in the above entitled action will take the testimony of Dr. W. Gene Schroeder who is now attached to the Grand Forks Airforce Base, Grand Forks, North Dakota, on written interrogatories, copies of which are attached hereto, * * * on Tuesday the 21st day of March, 1967 at 1:30 o’clock in the afternoon of said day, local time.
“This deposition will be taken for the purpose of use as evidence in said action.
“You are at liberty to be present to cross-examine said witness, either orally or by interrogatories, if you so desire.” (Emphasis added.)
The invitation to orally cross-examine the witness was allegedly inadvertent, bnt defense counsel nevertheless went to North Dakota and orally cross-examined Dr. Schroeder after plaintiffs’ interrogatories had been answered. According to the doctor, portions of a report he had previously sent to the plaintiffs’ counsel described the plaintiff’s ailment as a common one and noted that it was not necessarily the result of the fall, but when the report was returned so that he might review the case, these portions had been deleted. Despite the harmfulness of this testimony and the inadvertence of the initial invitation, plaintiffs’ counsel read a transcript of the deposition into evidence along with the answers to the written interrogatories. Plaintiffs now allege error in that defendants did not give notice of their intent to orally cross-examine at the time Dr. Schroeder’s deposition was taken by written interrogatories. In addition they contend that the court should have prevented defendants’ counsel from strongly implying in his closing argument that the deletion was intentionally made to falsify the report.
There was ample opportunity for objection to the closing argument of counsel and to any irregularities in the taking of the deposition, but none was made. Consequently, the actions underlying plaintiffs’ allegations of error may not serve as a basis for reversal. Kujawski v. Boyne Mountain Lodge, Inc. (1967), 379 Mich 381. Even had objection been made, it is doubtful that we would reverse. Any prejudice that might have resulted from defendants’ orally deposing the doctor was initiated by the plaintiffs themselves when their counsel read the testimony into the record. And once the doctor’s testimony was on the record, counsel’s closing argument was well supported by the evidence. We again find no error.
After both sides had rested and just before jury argument, plaintiffs’ counsel requested leave to reopen the proofs, allegedly for rebuttal, arguing that they were without knowledge of certain measurements of the tier and the tables, fueasurements that had been put into evidence at the close of the defendants’ case the day before. Plaintiffs’ offer of proofs consisted of a demonstration that did not vary the measurements already in evidence. The trial court denied plaintiffs’ request “because this is something I feel you should have discovered in time to have presented it in the original case and that you could have obtained, as far as measurements are concerned, upon discovery.” There is no showing by plaintiffs of substantial prejudice which might result from a failure to reopen the proofs. A reopening of the proofs is a matter within the sound discretion of the trial court and the record reveals no abuse thereof. Knoper v. Burton (1968), 12 Mich App 644.
In instructing the jury the court outlined the issues presented for their deliberation, explaining step by step both the four different findings made possible by the evidence and the verdicts they should return once any one finding was made. After some deliberation the jury returned to the courtroom, announced that they were unable to reach a decision, and asked, “would it help if we had the charges read to us, the four situations.” The court obliged them by repeating the instruction concerning the possible findings, and the jury again deliberated. Plaintiffs contend that the trial court misinterpreted the jury’s request, that the request for the charge on “the four situations” referred instead to an instruction wherein the court had explained the damages allowable under each verdict. Plaintiffs further contend that the court erred by repeating the instruction outside the presence of, and without notice to, their counsel, GCE 1963, 516.4, and by failing to reiterate that the burden of proof respecting contributory neglig’ence is on the defendants.
Plaintiffs’ first two contentions are unsupported by the record. There is nothing to indicate that the instruction repeated was not the one requested. To the contrary, the court specifically asked whether it had correctly responded to the jury’s request and the jury foreman answered that it had. The record is silent concerning the presence or absence of plaintiffs’ counsel. The trial court, in denying plaintiffs’ motion for a new trial, said, “it is my recollection that Mr. Fitzharris was here.” In any event, repetition of an instruction in the absence of counsel is not in and of itself error:
“The court, after the jury had retired, called them in for further instructions, which were given in the absence of the parties. The instructions were taken down by the reporter in the usual manner, but it is claimed that the court erred in giving these instructions in the absence of counsel. * * * [The] cases hold that it is improper for the judge to visit the juryroom or send communications to the jury in the absence of any consent of counsel, but none of them holds that the court is made responsible for the attendance of counsel in court during trial, or when additional instructions may be given.” National Life & Trust Co. v. Omans (1904), 137 Mich 365, 367, 368, quoted with approval in Salvatore v. City of Harper Woods (1963), 372 Mich 14, 20, 21.
The instruction given at the jury’s request completely and fairly paraphrased the original; it was not prejudicial to the plaintiffs’ case. The third contention is equally lacking in substance, since the original instruction did not deal with burdens of proof. It cannot be fairly said that the court erred by failing to repeat tbe instruction on burden of proof when tbe instruction was neither requested nor part of tbe instruction for wbicb repetition was requested.
Plaintiffs raise a number of final questions regarding tbe giving, or failure to give, certain instructions. A careful review of tbe record discloses no error.
Affirmed.
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Per Curiam.
Defendant was charged with carrying a concealed weapon (pistol) upon his person without a license. CL 1948, § 750.227 (Stat Ann 1962 Rev § 28.424), conviction of which is punishable by imprisonment for up to five years or by fine. At his arraignment defendant stood mute. Later while represented by counsel defendant pleaded guilty to the crime of an attempt to carry a concealed weapon on his person, CL 1948, § 750.92 (Stat Ann 1962 Rev § 28.287). The trial court met the requirements for acceptance of a guilty plea, and defendant’s own testimony showed consummation of the crime. Defendant was sentenced to a term of 2 to 2-1/2 years in prison.
On appeal the only issue is whether defendant was convicted of any offense known to the law. Stated another way, can a crime consist solely of attempting to carry a concealed weapon upon one’s person without a license? This issue was not raised by defendant in the trial court.
An essential element of the statutory crime of carrying a concealed weapon without a license is that the weapon was concealed. Thus, a conviction for attempting to carry a concealed weapon without a license presents a paradox. If the weapon was concealed and there was no license, the crime was complete; and if it wasn’t concealed, there was no crime.
Nevertheless, the statute setting forth the punishment for attempt to commit offenses prohibited by law, CL 1948, § 750.92 (Stat Ann 1962 Rev § 28-.287), resolves this paradox adversely to the defendant herein.
Additionally, the Michigan Supreme Court has held that the fact that the evidence establishes the consummation of a crime does not prevent a valid conviction for an attempt to commit that crime. People v. Bradovich (1943), 305 Mich 329. We find the following language from People v. Baxter (1928), 245 Mich 229, 232, quoted in the Bradovich case, supra, pp 331, 332, pertinent to the instant case:
“ ‘If an information admits of conviction of an attempt to commit a felony, an accused may be found guilty of the attempt, though the evidence shows a completed offense. (Citations omitted.) Such a verdict may be illogical, but the people cannot complain, and the defendant must accept it, even though less in measure than his just deserts; at least he cannot be heard to say that he has suffered injury.’ ”
In People v. Collins (1968), 380 Mich 131, defendants pleaded guilty to an amended information charging second-degree murder. On appeal they claimed they should have been charged with first-degree murder. The conviction was affirmed on the basis that error (if any) in the formal charge was procedural only and was waived by entry of a plea thereto. The opinion concluded,
“If there is any miscarriage of justice, under these circumstances it can only be one in which the people of the State of Michigan have exacted an insufficient penalty. Putting it another way, if there has been, under these circumstances, a miscarriage of justice, it is a miscarriage which ran to the benefit of the defendants and to the detriment of the people. Of such a miscarriage of justice, only the people can complain.”
Similarly, we find no miscarriage of justice of which the defendant can complain.
Affirmed. | [
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Per Curiam.
Defendant was convicted by a jury in the recorder’s court of the city of Detroit of assault with intent to rob and steal being armed, and was sentenced to life imprisonment.
At the trial the testimony of the complaining witness was corroborated by another eyewitness, who also identified the defendant. The defense was alibi and three witnesses testified thereto. The trial court instructed the jury that there were only two possible verdicts in this case, guilty of assault with intent to rob being armed or not guilty.
On appeal the only issue presented by the defendant is whether the trial court should have given additional instructions relating to lesser included offenses. Defendant contends that an instruction on attempted assault with intent to rob being armed should have been given.
There are two reasons why this Court is not convinced by defendant’s argument. First, he did not object to the instructions given by the trial court, as required by court rule in order to preserve this issue on appeal. The record shows that when asked by the trial court, “Are you satisfied with the the instructions?” defense counsel answered, “I have no objections.” Absent a showing of manifest injustice, objections to instructions cannot be raised for the first time on appeal.
Second, no evidence was presented to support a conviction of the lesser offense. The evidence was undisputed that the crime of assault with intent to rob and steal being armed was committed, and the only defense was that of alibi. Consequently, no instruction on the lesser offense should have been given. People v. Stevens (1968), 9 Mich App 531, leave to appeal denied, 381 Mich 769; People v. Carabell (1968), 11 Mich App 519.
Affirmed.
CL 1948, § 750.89 (Stat Ann 1962 Rev § 28.284).
GCR 1963, 516.2,
Defendant claimed he was engaged in a card game at another location at the time the crime was committed. | [
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Per Curiam.
Plaintiff’s complaint alleges fraud, deceit, and reliance thereon, which, if true, would allow recovery under the Federal Bankruptcy Act (11 USO A § 35). Section 35 of the Act provides:
“(a) A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as * * *
“(2) are liabilities for obtaining money or property by false pretenses for false representations, or for obtaining money or property on credit or obtaining an extension or renewal of credit in reliance upon a materially false statement in writing respecting his financial condition made or published or caused to be made or published in any manner whatsoever with intent to deceive.”
Defendants were in serious financial difficulty and owed various amounts of money to several creditors. Pressure for payment by one of the creditors and the need for cash to make a house payment caused defendants to call plaintiff for a loan. In a telephone conversation with plaintiff’s employee, defendants listed only four of the principal creditors ; the employee, after checking these accounts, turned down the loan as a poor risk because of defendants’ credit situation. The following day plaintiff’s manager called defendant Dean Crapo and told him that because of past experience (defendant had paid a previous loan to plaintiff), and because he was thought a capable individual, plaintiff could grant the loan. Testimony concerning the actual transaction at plaintiff’s office is conflicting, but one important fact is undisputed: The defendants listed only five creditors in applying for the loan, when in fact they had 16 additional creditors, to whom they owed more than $1,000. A loan for $1,000 was approved and a check was issued to defendants. This debt and others being in default for nonpayment, defendants filed bankruptcy proceedings and were discharged as bankrupt. Plaintiff contends that the money was obtained by false representations concerning defendants’ financial condition and, therefore, the exception to the general discharge in the Bankruptcy Act applies. Defendants contend that plaintiff did not rely upon the financial statement, but that the loan was made on the basis of plaintiff’s own investigation, and that plaintiff failed to prove defendants’ intent to deceive. From a judgment for plaintiff, defendants appeal.
The only issues on appeal are whether there was sufficient and credible evidence to support the trial court’s finding that a false financial statement was made by defendants with intent to deceive plaintiff, and that plaintiff relied on this statement in granting the loan.
If the Bankruptcy Act is to prevent a bankrupt’s discharge from liability for a loan, the bankrupt must be shown to have secured the loan by false representation of such character as to meet the judicial requirements for legal fraud — that is, the bankrupt’s representations must have been material and false in fact, must have been made with an intent to deceive and defraud, and the creditors must have believed, acted, and relied upon them to its prejudice. See 17 ALR2d, Anno; Discharge in Bankruptcy — Fraud, § 113, p 1208 and the cases cited therein.
When defendants did not list all of their creditors as required, the resulting debt.total was not a true statement of the debts incurred and outstanding, making the financial statement material because of the discrepancy, and false in fact.
Defendants’ intent to deceive is found in the following testimony from the record:
“The Court (questioning defendant Dean Crapo): You said you knew what was in this kind of financial statement, having made them out before, is that right?
“A: I knew you are required to list your debts.”
Mrs. Crapo, on cross-examination, gave these answers:
“Q. At the time you signed the financial statement you knew it wasn’t a true statement of your financial condition ?
“A. Yes, I guess.
“Q. You knew it was false?
“A. (No answer)
“Q. Ton knew it was false, didn’t yon, Mrs. Crapo ?
“A. Tes.”
The pivotal issue in this appeal is whether plaintiff believed, acted, and relied upon the financial statement in making the loan, or whether, as defendants contend, the loan was made on the basis of plaintiff’s investigation and previous dealings with defendant. From the first loan refusal, defendants became fully aware that the loan was marginal and this may have prompted defendants’ failure to list all creditors as required. At any rate, only five were listed. To argue that the listed creditors were overlooked and not evaluated with reference to the loan is refuted by the refusal of the loan by plaintiff’s employee and the subsequent reconsideration by plaintiff’s manager. Common sense and ordinary procedure indicates that the plaintiff’s manager was aware of the listed outstanding debts and their amounts. Plaintiff’s manager also testified that he relied upon the information contained in the financial statement and that, if defendants had listed the debts they owed on the statement, the loan would not have been approved.
The trial court found that a false financial statement was made, that plaintiff relied on it in making the loan, and that if the false financial statement had not been made and the false information therein disclosed to plaintiff, the loan would not have been made.
A review of the present record convinces this Court that there is sufficient and credible evidence, if believed, to support the fact findings of the trial court. The necessary elements, false material statement, reliance thereon, and intent to deceive can reasonably be found from the evidence of this case. This Court will not substitute its judgment on questions of fact unless the evidence clearly preponder ates in the other direction. Baith v. Knapp-Stiles, Inc. (1968, 380 Mich 119, 125; Mutual Benefit Life Insurance Co. v. Abbott (1968), 9 Mich App 547.
Concerning defendants’ admissibility of evidence issue, we find there was no abuse of discretion in admitting the custom and procedure testimony of plaintiff’s manager as a background to the principal issue, or that the defendants were harmed thereby.
Affirmed. Costs to plaintiff. | [
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Per Curiam.
Plaintiff Motorists Mutual Insurance Company was defendant Drew’s insurer, and began its action against Howard as his subrogee to' recover money paid to him as result of damages sustained in the accident. Rudy Howard' brought his action against Drew in response to Mutual’s action. These are two separate cases which were tried together in circuit court. They involve a two-car, rear-end collision. The accident occurred at about 7:30 a.m. on M-21 east on the Morrish Road intersection in Genesee County, when Howard drove his car into the rear of Drew’s car. Morrish Road is a two-lane, paved road, with a stop sign at M-21. M-21 is a four-lane, through highway, with a median strip between the two sets of lanes. Howard contends that Drew was guilty of contributory negligence in that Drew did not make proper observation before entering the intersection; that the defendant turned wide into his lane, from which he could not pass because of. snow piled up in the median; and that the impact took place less than 50 feet from the intersection. Drew contends that he stopped at the intersection, that he had his turn indicator on, that the weather was snowy or squally, that he looked to his left and did not see any traffic, and that he made a right turn into the outside lane of M-21 and travelled slowly for 250 to 300 feet when the collision occurred. The investigating police officer testified that the only debris from the impact was in the outside lane of M-21 and was approximately 300 feet from the intersection. The trial court sitting without a jury found for Drew and Mutual; Howard appeals.
Howard contends that because Drew did not see his car approaching, his conduct was the sole cause of the accident. Drew claims this is a simple rear-end collision, making Howard guilty of negligence as a matter of law.
Howard testified that the impact occurred about 50 feet from the intersection, in the inside lane. Drew testified that the vehicles collided 250 to 300 feet from the intersection, in the outside lane. This version is completely corroborated by the investigation of the police officer.
Whatever may be the law elsewhere, it is clearly established in Michigan that an expert may render an opinion concerning the point of impact based merely upon debris found and skid marks. Dudek v. Popp (1964), 373 Mich 300; Woolner v. Ponicki (1966), 3 Mich App 590; LaFave v. Kroger Co. (1966), 5 Mich App 446; Brummitt v. Chaney (1969), 18 Mich App 59. The police officer in this case was sufficiently experienced to qualify as an expert and there was no abuse of discretion in allowing his testimony and conclusions into evidence.
The trial court, after listening to the witnesses and weighing the evidence, sitting as the trier of fact found that the collision took place in the outside lane and 250 to 300 feet past the intersection. The court further found that the wind was blowing snow across the road, making it difficult to see, and Drew was therefore not guilty of contributory negligence in failing to see Howard approaching. The trial judge concluded that the pavement must have been wet, slippery or icy, thus imposing a greater burden upon Howard to use due care in accordance with statutory provisions. MCLA §§ 257.402, 257.627 (Stat Ann 1968 Rev §§ 9.2102, 9.2327).
The court determined that Howard had violated these sections of the Michigan Vehicle Code and made the following decision:
“[A]nd had Mr. Howard had his car under control or driving within a speed capable of avoiding the — hitting the car or cars in front of him — .
# * &
“I think there was negligence on the part of the defendant (Howard) and I find no negligence on the part of the — of Mr. Drew.”
There is ample and credible evidence to support both the findings of fact and the application of the law in this case. We do not set aside findings of fact unless they are clearly erroneous. (G-CR 1963, 517.1).
Judgment affirmed. Costs to appellees.
MCLA § 257.402 (Stat Ann 1968 Rev § 9.2102) :
“[W]hen it is shown by competent evidence that a vehicle travel-ling in the same direction, overtook and struck the rear end of another vehicle * * * the driver * * * of such first mentioned vehicle shall be deemed prima facie guilty of negligence.”
MCLA § 257.627 (Stat Ann 1968 Rev § 9.2327) :
“[A]nd no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured, clear distance ahead.” | [
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] |
Levin, P. J.
The -plaintiff, Henry Tuuk, is a former tenant of the defendant corporation, Saginaw Recreation Company. The defendant, Prank Andersen, is the president and sole stockholder of the corporation. The defendants appeal a jury verdict of $401,680.
There are a number of issues, but a common question, central to most of them, is whether the relationship of the parties is governed by the conversations upon which Tuuk relies or the writings upon which the defendants rely.
Tuuk, as tenant, and the corporation, as landlord, entered into a five-year written lease of a bowling alley on June 1, 1951. After the expiration of the term of the lease on May 31, 1956, Tuuk remained on as a tenant until July 30, 1962, when he vacated the premises following the termination of his ten ancy by tbe corporation and tbe issuance of a writ of restitution in summary proceedings for possession commenced by tbe corporation.
Tuuk’s complaint seeks tbe return of money be paid tbe corporation during tbe six-year holdover tenancy, and damages for tbe conversion of personal property which be asserts tbe corporation wrongfully insisted on keeping for itself upon termination of tbe tenancy.
Tnuk’s claim, as it was presented to tbe jury, was for $410,855,- consisting of three items:
(1) money allegedly overpaid, $53,105 ($37,855 as tbe amount overpaid plus interest of $15,250);
(2) conversion of automatic pinsetter lease, $217,750 (value $174,200 plus interest of $43,550); and
(3) conversion of fixtures and equipment, $140,-000 (value $112,000 plus interest of $28,000).
I.
Bent payable by Tuuk during holdover tenancy; money allegedly overpaid by Tuuk
During tbe six-year holdover tenancy, Andersen, for tbe corporation, wrote Tuuk three letters increasing tbe rent.
(a) Tbe first letter, dated September 14, 1956, stated that tbe rent would be increased from $40,-500 to $51,300 a year for 5 years — an increase of $10,800 a year.
Shortly after tbe term of tbe lease expired on May 31, 1956, automatic pinsetters were installed in tbe bowling alley. Tbe letter stated that tbe increase in rent reflected a five-year amortization of the sum of tbe amount expended by the corporation for installation of automatic pinsetters ($31,314.73) and the amount of an old note owing by Tuulc ($13,472.73), and 6% interest on that sum for five years, and a provision for anticipated increase in property taxes.
• (b) The second letter, dated November 17, 1959, was sent after the corporation had constructed a parking lot for use in conjunction with the bowling alley. The letter stated that the parking lot cost $95,000, including the cost of the land, and that the rent would be increased to $61,875 a year beginning December 1, 1959 — an increase of $10,575 a year.
(c) The third letter, dated March 9, 1961, was sent after $14,790.29 of carpeting was installed in the bowling alley. This letter provided for a rent of $64,755 a year “starting January 1, 1961, with new lease * * * for 5 years” — an increase of $2,880 a year. A proposed lease was enclosed with the letter but was never signed by Tuuk.
Tuuk paid the increased amounts demanded by the corporation except for some installments which became due in the spring of 1962 at about the time his tenancy was terminated. He testified, however, that after he received the first letter (dated September 14, 1956) he communicated with Andersen and it was agreed that Tuuk would pay the increased rent provisionally subject to an audit.
It was Tuuk’s claim that he and Andersen agreed that the corporation’s expenditures for installation of the pinsetters ($31,314.73) would be treated as a loan by the corporation to Tuuk and that the sum of such expenditures together with the old indebtness of $13,472.73 would, indeed, be paid in the manner stated in the September 14, 1956 letter, but only until Tuuk had paid over and beyond the old annual rent of $40,500 the amounts so loaned to and already owing by Tuuk together with interest. He testified that Andersen agreed that after those amounts had been repaid in the manner indicated, the corporation would account to Tuuk for any overage that he might pay.
Andersen denied that such an oral agreement was entered into and additionally asserts as defenses the parol evidence rule, the statute of frauds, the statute of limitations, the rule of law that payments voluntarily made cannot be recovered and Tuuk’s failure to plead the so-called “audit agreement.” We do not think any of the asserted defenses are applicable; the disputed factual question of whether the oral agreement was entered into was for the jury to decide.
The failure to plead the “audit agreement” issue was waived by the defendants’ failure to object to Tuuk’s testimony on that ground. Further, it appears that the defendants were fully aware of the nature of Tuuk’s claim and, thus, were aware of the nature of the issue they were called upon to defend. The issue was joined by Andersen’s testimony denying Tuuk’s audit agreement claim. See GCR 1963, 118.3; Paul v. University Motor Sales Co. (1938), 283 Mich 587, 594; Nelson v. Stewart (1913), 174 Mich 127, 136.
Tuuk did not reply in writing to any of the three letters. The defendants contend that Tuuk’s payment of the increased amounts provided for in the letters constituted an acceptance of their terms and they invoke the parol evidence rule and the statute of frauds to protect the writings.
A writing cannot, however, prove itself. Just as the fact that Tuuk paid the increased amounts was proved by parol, he had the right to prove by parol that his payment of those amounts, by agreement with Andersen, did not constitute an acceptance of the terms of the letters and that the payments were made under separate oral agreements. See 3 Corbin on Contracts, § 582, pp MS-455 ; 9 Wigmore on Evidence, § 2431, pp 102-104.
The defendant’s argument that allowing proof of an oral agreement violates the provision of the statute of frauds which requires a lease for more than one year to be in writing (MCLA § 566.108 [Stat Ann 1953 Rev §26.908]) elides the fact that it is the defendant landlord, not the plaintiff tenant, who relies on an unsigned writing to establish a rental different (and greater) than that stated in the 1951 lease.
In Claerhout v. Tromley (1937), 282 Mich 649, upon which the defendant landlord relies, in contrast with this case, the tenant sought to remain in possession beyond the original term of the lease under an agreement which the Court found would constitute “an unexecuted change or modification in the terms of the written lease”; here the tenancy has terminated and the question is the amount of rent payable during the period of the holdover tenancy. Cf. Lawson-Erb Lumber Co. v. Graham-Paige Co. of Michigan (1938), 283 Mich 252, 258. In this case it is the landlord who relies on an “unexecuted change or modification.” (i.e., the letters) of the written lease.
The central question — a factual question— remains: were the letters addressed by the defendant landlord to Tuuk accepted by him as the embodiment of an agreement modifying the 1951 lease to increase the rent to an amount greater than the rent fixed in the lease?
Tuuk’s testimony did not seek orally to vary the terms of a contract (parol evidence rule) or to modify a contract which the law (statute of frauds) may require to be in writing. Rather, his testimony was that he orally rejected the written offer from the corporation contained in the first letter that he continue his tenancy at an increased rent, that such offer never became a contract and that the parties had an oral contract concerning Tuuk’s payment of the increased amounts different from the proposed contract set out in the offering letter.
If, as the jury by its verdict found, the contract of the parties was oral, not written, then the written offer never became a written contract and, thus, the parol testimony did not vary or modify a written contract. The law does not require that Tuuk’s alleged rejection of the written offer be in writing. It does not bar proof of an oral contract regarding the payment of indebtedness and that is what Tuuk claimed the oral contract concerned.
Tuuk had a right to prove by parol that his act of paying the amounts required under the letter did not constitute an acceptance of the letter, that the letter did not constitute an integration of an agreement of the parties and that the true contract was the oral contract concerning which he testified. See 3 Corbin on Contracts, § 577, pp 385-388. Cf. Sams v. Feldman (1955), 342 Mich 10; Canvasser Custom Builders, Inc. v. Seskin (1969), 18 Mich App 606, 611.
No part of Tuuk’s claim for the refund of over-payments accrued until a date less than six years before this action was commenced on October 30, 1963. It is apparent from the jury’s verdict that it believed Tuuk’s testimony and, thus, that it accepted his claim of an audit agreement; under this agreement no amount would have been refundable until the entire indebtedness incurred by Tuuk for installation of the pinsetters and evidenced by the old note, together with interest, had been paid. It is not claimed that this occurred until some time in 1959, a date less than six years before the date this action was commenced. Additionally, the trial judge charged the jury that it could not refund any amount paid more than six years before the action was commenced.
Tuuk’s testimony was sufficient to frame a jury issue as to whether the monthly payments paid by Tuuk to the corporation were, as the defendants claimed, “voluntary” rent payments or, as Tuuk claimed, a combination of rent payments and payments of principal and interest of indebtednesses. The defendants’ offer, reflected in the September 14, 1956 letter, to combine in one payment rent and the repayment of the old $13,472.73 indebtedness, and the inclusion of a provision for 6% interest on both that amount and the expenditures for the installation of pinsetters, made more credible Tuuk’s claim that the parties had agreed that all amounts paid in excess of the old rent would constitute repayment of indebtedness and the corporation would account to Tuuk for amounts paid in excess of the old rent and the indebtedness after an audit. That may not have been the agreement of the parties, hut the jury could properly conclude that it was if the jurors believed Tuuk, as they apparently chose to do.
We find no inconsistency in the jury instructions concerning Tuuk’s audit agreement claim. The judge charged the jury that the rent provided in the 1951 lease would govern during the holdover tenancy unless the parties entered into another agreement and, also, that since Tuuk paid the amounts set forth in the 1956 letter, the rent stated in that letter would supersede the rent provided in the 1951 lease unless, again, the parties had another agreement regarding the amounts Tuuk paid. That was a correct statement of the law applicable in this case.
We take a different view of Tuuk’s claim that there was an audit agreement in regard to the 1959 and 1961 letters. The corporation acquired land and improved it as a parking lot in 1959 at Tuuk’s request. Although Tuuk claimed that it was agreed that the additional amounts paid by him to the corporation after the 1959 and 1961 letters were sent were also subject to an audit agreement, he did not, in contrast with his claim concerning the 1956 letter, state the basis upon which the audit would be made.
There is nothing in the record which would support a finding that Tuuk justifiably expected to use the parking lot and the carpeting without payment of additional rent. Tuuk’s audit agreement claim regarding the increases in rent for the use of the parking lot and the carpeting is amorphous. It provides no basis upon which a judge or jury could make a determination concerning the amount which would be an appropriate rent upon an “audit”; this is not a case where the tenant claims that it was agreed that the rent he was required to pay was a reasonable amount or was to be determined by an ascertainable standard.
We do not think Tuuk should be heard to say that the increases in rent provided for in the 1959 and 1961 letters were subject to “audit” without more, without any statement regarding the basis upon which the parties had agreed the audit would be made. We have, therefore, concluded that it was error to have submitted that part of Tuuk’s claim to the jury. The amount of the jury verdict will be reduced by $34,175 plus interest to be computed upon remand at the rate of 6% per annum. See 5 Am Jur 2d, Appeal and Error, § 940, pp 367-369, concerning the power of an appellate court to reduce the amount of a jury verdict where an excessive amount included therein can be segregated.
II.
Ownership of lessee’s rights in the pinsetter lease
The automatic pinsetters were installed in 1956 pursuant to a ten-year lease (with an option for renewal) between the manufacturer and the corporation.
Tuuk claimed that he and Andersen had agreed that all the corporation’s rights in the pinsetter lease belonged to Tuuk. He testified that the only reason why the pinsetter lease was-entered into between the manufacturer and the corporation, and not with Tuuk,- was that there would have been a great deal of red tape involved if the lease had been entered into with anyone other than the owner of the real estate.
Early in 1962, shortly before Tuuk’s tenancy was terminated, the manufacturer wrote its lessees offering to sell them the pinsetter equipment they were leasing. The offer, if accepted, would terminate the lease. The manufacturer had no obligation to make this offer and had never before made such an offer.
The letter from the manufacturer to the corporation offered to sell the equipment at a discount from its “original value” of approximately $209,000. The corporation accepted the offer and purchased the equipment for $126,317.64.
Tuuk claimed that the corporation’s acceptance of the manufacturer’s offer to sell the pinsetter equipment and termination of the pinsetter lease constituted a conversion of his rights in that lease and his damages were $174,200. Andersen denied the agreement.
The corporation paid the manufacturer $23,000 for installation of the pinsetters; this was part of the $31,314.73 total installation cost mentioned in the September 14, 1956 letter. As previously men tioned, Tuuk claimed that the entire $31,314.73, i.e., including the $23,000 payment to the manufacturer, constituted an advance by the corporation for Tuuk which he was obligated to repay the corporation with interest. The corporation claimed it paid that amount for its own account, but the jury verdict on the “rent” overpayment issue shows it believed Tuuk.
Although the parties to the pinsetter lease were the manufacturer and the corporation, by agreement between Tuuk and the corporation it was Tuuk who paid the rent owing to the manufacturer under the pinsetter lease — approximately $206,000 during the period 1956-1962. A representative of the manufacturer testified that the purchase price of the pinsetter equipment sold by the manufacturer to the corporation was computed on a depreciated basis and did not reflect the amounts previously paid the manufacturer as rent, that it was merely coincidental that the amount of the discount (approximately $209,000) was within a few thousand dollars of the total rent which Tuuk had paid.
Tuuk also paid all expenses in connection with the use, maintenance and ownership of the pinsetter equipment.
Although a considerable amount of money is involved in this issue, it is simply an issue of fact. This factual issue was properly submitted to the jury for resolution. That intangible personal property can be the subject of conversion, see Warren Tool Company v. Stephenson (1968), 11 Mich App 274, 298.
It is of no consequence that the pinsetter lease did not grant the corporation an option to purchase and, thus, at the time when Tuuk claims' he entered into the alleged oral agreement concerning this lease, he could not have expected that he would thereby obtain an opportunity to purchase the pinsetter equipment some five years later. That opportunity, when it carné, was an adjunct of the pinsetter lease; when the corporation availed itself of that opportunity it effected a cancellation of the pinsetter lease. If, as the jury by its verdict found, all the lessee’s rights under the lease belonged to Tuuk, then so too did the opportunity to purchase. Cf. Warren Tool Company v. Stephenson, supra, p 285, footnote 6.
It is true that the pinsetter lease contained a provision prohibiting the assignment of the corporation’s interest in the lease. Because of this provision the manufacturer may not have been required to recognize the alleged agreement between Tuuk and the corporation. However, without regard to whether Tuuk was aware of that provision of the lease, the lease between the manufacturer and the corporation does not purport to be — clearly it is not — an integration also of any separate oral agreement between the corporation and Tuuk. The parol evi-’ dence rulé does not preclude proof of the alleged separate agreement between the corporation and Tuuk. See Busch v. Pollock (1879), 41 Mich 64; Sewall v. Feller (1939), 288 Mich 107; see, also, 3 Corbin on Contracts, § 582, pp 448-455.
III.
Alleged conversion of Tunit’s fixtures and equipment after his tenancy terminated
A list of personal property is attached to the 1951 lease. The lease provided that “all equipment and supplies remaining in' use or replaced because of wear and tear” shall be left on the premises at the termination of the lease. However, some of the listed items were crossed out by Andersen after they had been replaced by items newly purchased by Tuuk. Tuuk claimed that he was not required to leave the newly purchased items on the premises. In addition, at the time of termination of his tenancy, Tuuk had on the premises personal property not listed.
Shortly after his tenancy was terminated, the defendants’ attorney wrote Tuuk advising him not to remove from the premises any personal property except alcoholic beverage inventory, equipment and supplies directly related to the operation of the bar. Thereafter, on July 25, 1962, the corporation obtained an injunction prohibiting him from doing so. Subsequently, Tuuk was advised he could remove some items of personal property which the letter from the corporation’s attorneys and the injunction prohibited him from removing.
The judge submitted to the jury the questions of whether the items of personal property claimed by Tuuk were his or the corporation’s, whether Tuuk had sought to remove them within a reasonable time after the termination of his tenancy, whether the defendants had converted personal property belonging to Tuuk and, if so, the value of the property converted.
The defendants do not now assert that the judge erred in submitting to the jury the question of whether the items of personal property claimed by Tuuk were his or the corporation’s.
We also note that although the amounts involved are large, no claim is made on this appeal that there was insufficient evidence to support the values of the personal property and fixtures (or, we note parenthetically, of the pinsetter lease) adopted by the jury or that the verdict is excessive or contrary to the great weight of the evidence.
The defendants assert, rather, that the judge erred in permitting the jury to consider the injunc tion as evidence of conversion and in not directing the jury to find that Tuuk failed within a reasonable time after the termination of his tenancy to remove his personal property from the premises. We find no error. It was proper to permit the jury to consider the injunction preventing Tuuk from legally removing personal property from the premises in deciding whether he justifiably failed to remove such property following the termination of his tenancy. The injunction, together with the other evidence, including Tuuk’s testimony and the corroborating testimony of a former employee of the corporation concerning the corporation’s use of Tuuk’s personal property, precluded direction of a verdict on this issue.
In this case, in contrast with Felcher v. McMillan (1895), 103 Mich 494 (cited by the defendants), there was evidence that the defendant corporation assumed dominion over the disputed property. This justified a finding that it did more by obtaining the injunction than merely attempt to preserve the status quo until the interests of the parties in the disputed personal property could be determined.
IY.
Tuuk’s cross-appeal: right of first refusal; loss of profits on bowling-hall business; Andersen’s personal liability to pay judgment
Tuuk relies in his cross appeal on a provision in the 1951 lease which gave him “a first refusal for the continued use of said premises on the termination of this lease, but on conditions to be negotiated between the parties hereto as of such date.” We think the trial judge correctly ruled that his claim for damages for alleged breach of that provision should not be submitted to the jury. Putting aside the ques tion of whether the provision is sufficiently definite to be enforced, Tuuk obtained a jury verdict on his claim that there was an audit agreement concerning the September 14,1956 letter. Under that letter, as modified by the audit agreement, Tuuk was to retain possession of the premises for an additional five years upon payment of the installments stated in the letter, subject to audit.
While Tuuk testified that he asked Andersen for a new lease from time to time and was refused, he did not claim that Andersen agreed to an extension of the time for the negotiation of a new lease pursuant to Tuuk’s right of first refusal. We are satisfied that the September 14, 1956 letter, as modified by the audit agreement, either constituted an agreement negotiated pursuant to the right of first refusal or represented a rejection of Tuuk’s claim for a new lease and, if the latter, constituted a breach of that agreement which occurred more than six years before this action was commenced.
On his cross appeal, Tuuk additionally claims damages for loss of profits of a bowling-ball business resulting from the conversion of the equipment with which that business was conducted on the leased premises and from the cancellation of his franchise by the manufacturer of the bowling balls. The trial judge also correctly refused to submit this claim to the jury. Tuuk recovered for the conversion of the equipment used in the bowling-ball business as part of the damages allowed for the conversion of his personal property. Tuuk did not prove that like equipment could not have been purchased with which to conduct this business. Nor did he prove that he could have transferred the patronage of his customers from the location where he had conducted this business to some new location. Tuuk’s claim for loss of profits was not evidentially established.
The jury was instructed that it could bring in a verdict against both Andersen and the corporation for whatever damages it awarded Tuuk. The jury’s verdict was for the entire amount against both defendants. On the motion for a new trial, the trial judge reduced the judgment against Andersen personally to $130,821.58. While this reduction was challenged on Tuuk’s cross appeal, we see no need to address ourselves to this issue. Tuuk now concedes that the issue is academic since an appeal bond has been posted for the entire amount of the corporation’s liability.
V.
The contention that the defendants were prejudiced by improper cross-examination of Andersen
The defendants assert that the trial judge erred in permitting cross-examination of Andersen on collateral matters for the purpose of testing credibility and that the trial was not fair and impartial. In substance it is claimed that there was placed before the jury facts that may have prejudiced it against the defendants. We find no merit in these claims.
No objection was raised to the initial cross-examination of Andersen regarding Tuuk’s perpetual lease claim. This claim was later developed on a segregated record in the absence of the jury. Tuuk’s reasonable rent claim was also developed on a segregated record. Tuuk’s testimony that he was emotionally upset may be thought relevant on the question of whether he attempted to remove his personal property from the leased premises within a reasonable time after the termination of his tenancy.
Andersen was not, contrary to the defendants’ assertion, cross-examined concerning the reasonableness of the rent after the trial judge decided during the course of the trial to reject Tuuk’s perpetual lease and reasonable rent claims. The questions put to Andersen after that ruling of the court appear to have been asked in an attempt to elicit from him the basis upon which he arrived at the increased rent stated in the 1956 letter; this was entirely relevant to Tuuk’s audit agreement claim. Furthermore, there was little testimony by Andersen in response to these questions as most of his attorney’s objections to these questions were sustained.
The jury instructions, prepared after a conference between the judge and the attorneys for the parties, were not confusing or contradictory and, read as a whole, fairly presented the issues to the j^y.
In the last analysis, the central question before the jury was credibility. They were asked to decide whether the oral agreements Tuuk claimed he negotiated with Andersen had in fact been entered into. In this connection it was understandable that Tuuk’s attorney would, in developing his case, go back to the commencement of the relationship of the parties. The course of dealings of the parties would bear on the likelihood of the oral agreements testified to by Tuuk having in fact been made.
In 1940 Tuuk and another person met Andersen who thereafter built the bowling alley and rented it to them. Subsequently Andersen replaced this other person and became Tuuk’s equal partner. In 1947 the bowling alley was expanded from 20 to 40 alleys and the rent was increased. In 1951 the partnership between Tuuk and Andersen was dissolved; the bowling alley equipment and related equipment were distributed to Andersen and the bar and related equipment to Tuuk and the corporation and Tuuk entered into the 1951 lease. The trial judge did not err in permitting cross-examination of Andersen concerning the previous relationship of the parties for the purpose of testing Andersen’s credibility. See People v. MacCullough (1937), 281 Mich 15, 25; 58 Am Jur, Witnesses, § 625, pp 346, 347; McCormick on Evidence, § 29, pp 54-56.
After reading the transcripts we find ourselves in agreement with the following observation of the trial judge in denying the motion for a new trial:
“This was a very difficult case. It was very well tried by experienced counsel. The issues were presented for the jury’s determination. Numerous cautionary instructions were given to the jury throughout the trial. At no time during this lengthy trial covering a considerable length of time did either counsel do or say anything in the presence of the jury which would improperly prejudice the jury or be a basis for a mistrial. Neither counsel at any time moved for a mistrial. It became evident that both sides were willing to seek the jury’s decision on the factual issues without the slightest suggestion thatthe case should be retried before another jury.”
In summary:
(1) Tuuk was properly allowed to prove his audit agreement claim in respect to the 1956 letter, but his claim of an audit agreement in respect to the 1959 (parking lot) and 1961 (carpeting) letters was unsubstantiated.
(2) The provision in the automatic pinsetter lease prohibiting assignment did not bar Tuuk’s attempting to prove that under a separate oral agreement he had acquired all the corporation’s rights under that lease.
(3) The jury was properly instructed when it was told that the injunction which prevented removal of Tunk’s personal property could be considered, together with the other evidence, in deciding whether he justifiably failed to remove his property following the termination of his tenancy.
(4) On the cross-appeal we find no error in refusing to submit for jury consideration Tuuk’s claims of a right of first refusal as to the continued use of the premises and for loss of profits of a bowling-ball business.
Affirmed and remanded for modification of the judgment as provided for in the last paragraph of part I. No costs, neither party having prevailed in full.
All concurred. | [
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] |
Bronson, J.
On April 28, 1948, plaintiff Herbert F. Layle was appointed Quartermaster General of the State of Michigan. He served in that office until he was relieved of his position by order of the Honorable G. Mennen Williams, then Governor of Michigan and Commander-in-Chief of the state military forces.
Plaintiff sought reinstatement to his former position of Quartermaster General and this was denied. He then filed a petition for relief by mandamus in the Supreme Court of Michigan, which was denied. On January 8, 1968, McDonald v. Schnipke (1968), 380 Mich 14, was decided. After that decision, plaintiff commenced this action.
On June 6, 1957, the Michigan legislature enacted PA 1957, No 214, which act was to take immediate effect. Act No 214 provides, in part, that “the quartermaster general shall have the rank and title of brigadier general during his tenure of office and upon retirement therefrom.” On June 6,1957, plaintiff held the rank of colonel and the office of Quartermaster General.
OL 1948, § 32.12 (Stat Ann 1961 Rev § 4.604) as then effective provided that:
“Upon occurrence of a vacancy in any office in the * * # quartermaster corps * * * , said offices shall be filled by the governor from among a list of officers of the Michigan national guard, recommended upon their merits and under proper regulations, for these respective offices by the state military board.”
On September 23, 1957 the Attorney General advised the Governor that (1) Act 214 was not self-executing but was mandatory, (2) he was not obliged to promote Colonel Layle to brigadier general but that, if he did not do so, he must remove Layle as Quartermaster General and appoint someone else Quartermaster General with the rank of brigadier general, and (3) if he decided to remove Layle as Quartermaster General, that position would thereupon become vacant.
The report from the Attorney General upon which the Governor relied stated in part that:
“The position of quartermaster general as such remains the same as before the passage of this 1957 act. The change brought about is an increase in the rank or grade of the existing position and not the creation of a new position.
“* * * In view of your constitutional designation as commander-in-chief and of the powers necessarily vested in you by virtue of this office it is my considered judgment that the action of the legislature is not a self-executing promotion in rank of the incumbent quartermaster general but that the right and power of promotion in rank is imposed in you as commander-in-chief.”
At a special meeting of the State Military Board held on September 24, 1957, in the Governor’s office at Lansing, the Governor informed the board that, after due consideration of the recent changes in the military laws, he felt that there must be a new appointment made to the post of Quartermaster General. He informed the board that since PA 1957, No 214, required that “the quartermaster general shall have the rank and title of brigadier general”, and inasmuch as the incumbent Quartermaster General was a colonel, it was his intention to appoint a new Quartermaster General. With this end in mind, the Governor requested the board to present a recommended list of those officers eligible for promotion to the rank of brigadier general.
According to the minutes of the special meeting of the State Military Board, held on September 24, 1957:
“The Governor further stated that inasmuch as CL 1948, § 32.12, required him to fill vacancies in the quartermaster general corps from among a list of officers of the Michigan National Guard, recom mended upon their merits and under proper regulations * * * by the State Military Board, that he proposed to relieve the present Quartermaster General, effective midnight, 30 September 1957, and directed the Military Board to furnish him, not later than 1 October 1957, a list of qualified officers of the Michigan National Guard who might be considered for appointment as the Quartermaster General of Michigan and for promotion to the grade of brigadier general.” (Emphasis added.)
On September 25, 1957, Governor Williams sent a letter to Major General Gordon A. MacDonald, Presiding Officer of the State Military Board, which stated:
“PA 1957, No 214 requires the Quartermaster General of the State of Michigan to hold the rank of brigadier general. The incumbent quartermaster is a colonel. It is my desire to secure the recommendations of the Military Board with respect to officers eligible for promotion to the rank of brigadier general, the person ultimately selected by me thereafter to become the quartermaster general.
“CL 1948, § 32.12, requires me to fill vacancies in the quartermaster corps ‘from among a list of officers of the Michigan National Guard, recommended upon their merits and under proper regulations * * * by the State Military Board.’ In order to initiate the recommendation process I have relieved Colonel Herbert F. Layle as the Quartermaster General effective midnight, September 30, 1957.
“By this letter I wish to advise that the Military Board will be directed on October 1, 1957 to furnish me that day a list containing the names of officers of the Michigan National Guard considered by the board to be qualified for appointment to fill the vacancy existing on that date in the office of the Quartermaster General.” (Emphasis added.)
On September 28,1957, the then Adjutant General, in conformance with a written directive from the Governor, issued Special Order No 204, relieving plaintiff from duty and assignment as Quartermaster General of the State of Michigan, said order taking effect as of 12 midnight, September 30, 1957. The order further provided that plaintiff was to continue in his assignment to Headquarters and Headquarters Detachment, Michigan National Guard.
On October 1, 1957, the State Military Board met and compiled a list of those officers who were eligible and desirous of the promotion. Plaintiff’s name was among those certified eligible. On October 1, 1957, the Governor informed defendant and General Gordon MacDonald that it was his intention to appoint Colonel Ronald C. McDonald as Quartermaster General of the State of Michigan, such appointment to be effective October 1, 1957.
On April 2,1958, plaintiff filed a petition for relief by mandamus in the Michigan Supreme Court. On July 17, 1958, the Michigan Supreme Court denied plaintiff’s petition. At the time plaintiff sought relief by mandamus in the Michigan Supreme Court he was still an active member of the Michigan National Guard.
On May 20, 1968, plaintiff instituted the present action. Plaintiff here seeks judgment of the court :
1. Finding plaintiff to have been the lawful and rightful Quartermaster General with the office, military rank and title of brigadier general on June 6, 1957, and to have been entitled to discharge the duties of that position therefrom, until he reached age 64 on November 15, 1963.
2. Ordering defendant to restore plaintiff to the rank and title of brigadier general retroactive to June 6, 1957.
3. Ordering payment of full actual duty pay and allowances of the rank of brigadier general from June 6,1957 to November 15, 1963, the date plaintiff became 64 years of age, less the actual duty pay and retirement pay paid plaintiff by the State of Michigan during that period.
_ 4. Ordering retirement of plaintiff under the provisions of CL 1948, § 32.49, retroactive to November 16, 1963, with the retirement pay of a brigadier general with 30 years of service as of that date, less such retirement pay paid to the plaintiff by the State of Michigan since that date.
We 'agree with the Attorney General that PA 1957, No 214 was not self-executing and, accordingly, that Layle was not automatically promoted to brigadier general upon its passage. The act does not, however, evidence any intention of the legislature to force the removal of the incumbent because he was not a brigadier general.
If a savings clause had been inserted into PA 1957, No 214 stating, in effect, that the amendment was not intended to terminate or otherwise affect any prior appointments, this would have been a clear manifestation of the legislators’ intent; however, the absence of such a savings clause does not, per se, manifest an opposite intent. In concluding that PA 1957, No 214 does not evidence an intention to remove the incumbent Quartermaster General because he was not a brigadier general, we are influenced by the fact that CL 1948, § 32.12 (Stat Ann 1961 Eev § 4.604) provided that staff officers shall hold their positions until they reach retirement age, resign, become disabled or are retired by court-martial for cause.
It is defendant’s position that as of June 6, 1957, the effective date of PA 1957, No 214, a vacancy existed in the office of Quartermaster General. In support of this contention defendant cites the following language from Baxter v. Latimer (1898), 116 Mich 356, 364:
“An office is not vacant so long as it is supplied, in the manner provided by the Constitution or law, with an incumbent who is legally qualified to exercise the powers and perform the duties which appertain to it; and, conversely, it is vacant, in the eye of the law, whenever it is unoccupied by a legally-qualified incumbent who has a lawful right to continue therein until the happening of some future event. * # * ” (Citations omitted.)
To accept defendant’s interpretation of Baxter would create the anomalous situation that PA 1957, No 214 automatically stripped plaintiff of the tenure provided Mm by CL 1948, § 32.12 (Stat Ann 1961 Rev §4.604). This contention of the .defendant is inconsistent with the position of the Attorney General set forth in his letter of September 23, 1957 wherein he stated that the position of Quartermaster General would become vacant upon Layle’s removal and is also inconsistent with the action of the Governor, who did not rely on automatic removal under PA 1957, No 214 but, rather, attempted to remove Layle by order effective September 30, 1957.
In light of the provisions of CL 1948, § 32.12 (Stat Ann 1961 Rev § 4.604), we feel that the better interpretation of the above-quoted language from Baxter construes the time when the office-holder is to be determined qualified as the precise moment when he is appointed. Under our interpretation, PA 1957, No 214 did.not automatically create a vacancy in the position of Quartermaster General upon its effective date.
We are faced with a situation in which the legislature by and through PA 1957, No 214 so modified the office of Quartermaster General as to necessitate some affirmative act by the Governor to facilitate the implementation of the act. When the Governor refused to raise the incumbent to the rank of brigadier general, the inadequate provisions of PA 1957, No 214 left the plaintiff in limbo.
PA 1957, No 297, being:
“An act to provide a uniform code of military justice for the Michigan National Guard, not in the service of the United States, and for the Michigan State Troops, when the same shall be in existence, and to repeal acts and parts of acts,”
was approved on June 19, 1957. Since this act was not immediately effective, it became effective on September 27, 1957. Thus this act was in force some three days before the date on which the Governor’s action in relieving the plaintiff from the position of Quartermaster General became effective. In McDonald v. Schnipke (1968), 380 Mich 14, 21, the Michigan Supreme Court held that PA 1957, No 297 applies to all persons belonging to the organized militia and that the Governor violated that act in attempting to remove McDonald as Adjutant General pursuant to the Governor’s powers under art 5, § 10 of the Constitution of 1963 rather than under and pursuant to the provisions of PA 1957, No 297.
It is now some 12 years since plaintiff was relieved as Quartermaster General. In these intervening years plaintiff faithfully performed his assigned duties until he was relieved from active duty and ultimately retired at the age of 60 with the pay of a colonel with 28 years’ service.
The defendant asserts the plaintiff is barred from bringing his suit by laches and statute of limitations. In support of this claim, defendant points out the present suit was instituted over ten years after the plaintiff’s removal and, quoting from Arant v. Lane (1919), 249 US 367 (39 S Ct 293, 63 L Ed 650), approved by Jones v. Doonan (1933), 265 Mich 384, 388, states the plaintiff, “having sat idly by for almost a decade,” cannot now present any claims for relief.
This argument lacks merit. The plaintiff did not sit “idly by”, as the defendant suggests; on the contrary, the plaintiff commenced suit originally by filing a petition with the Supreme Court in 1958. The plaintiff cannot be faulted because he did not obtain the hearing he sought when he filed his earlier petition. However, as to the statute of limitations defense, we take a somewhat different view. While the plaintiff did not permit the statute of limitations to expire without taking action, the present proceed ing was not commenced until May 20, 1968. To allow the plaintiff to recover without regard to the statute of limitations would impose too great a liability; the right of the state to limit the plaintiff’s recovery to amounts that accrued within six years of the commencement of this action is a substantial one and must be protected.
The defendant also submits this claim is barred on a theory of res judicata. That theory cannot be sustained as the original case was not decided upon its merits; on the contrary, the Supreme Court on July 17, 1958, merely denied plaintiff’s petition for relief without stating any grounds for its denial. In all events, the decision of the Supreme Court was not made after a hearing on the merits.
We find that plaintiff did, indeed, suffer an actionable wrong. While plaintiff was not entitled to be promoted as a matter of right, his transfer to a position which did not require active, full-time service caused a reduction in wages from that which he received as a full-time Quartermaster General. Therefore it is our decision that plaintiff is entitled to damages equal in amount to his loss of wages which resulted from his transfer; such lost wages to be computed from May 20, 1962, the date six years before the date this suit was commenced, until such date as plaintiff shall have reached the age of 64 years. It is our further decision that plaintiff shall receive in damages such sum as is equal to the difference between the retirement pay he received from age 64 years until this date as computed on a basis of retirement at 60 years and the amount that he should have received had the retirement pay been computed on the basis of a colonel with the added four years of service. Finally, it is our decision that from this date hence plaintiff be given retirement benefits computed as if be bad served as a full-time colonel in tbe position of Quartermaster General until be reached tbe age of 64 years.
No costs, a public question being involved.
All concurred.
For example, CL 1948, § 32.11 (Stat Ann 1961 Pev § 4.603) provided, in part:
“* * * Provided, That no officer shall be appointed in any such staff corps or staff departments with rank higher than colonel. * * * The Adjutant General’s Department shall include the adjutant general of the state with rank of colonel, who shall also be inspector general of the state. The quartermaster corps shall include the quartermaster general of the state. The adjutant general and the quartermaster general shall be at the head of their various departments. * * * Nothing in this amendment shall be held or so construed as to discharge any officer from any of the various staff corps or staff departments, or to deprive any officer of the commission whieh he now holds.”
It is also interesting to note that PA 1943, No 65, whieh raised the rank of the adjutant general to brigadier general, contained a savings clause (§2) which provided:
“The provisions of this amending act shall not he construed to terminate any appointment heretofore made to any military office * * * in the military establishment of this state, * * * nor to nullify any act heretofore made by or by authority of the governor with relation to the organization, administration or use of the Michigan State Troops, or the Michigan National Guard, or of the'officers respectively thereof; and all appointments to office and all enlistments in the military establishment, shall remain effective according to the original tenor thereof.” (Emphasis supplied.)
CL 1948, § 32.12 (Stat Ann 1961 Rev § 4.604) reads, where pertinent:
“Staff officers, * * * hereafter appointed, shall have had previous military experience and shall hold, their positions until they shall have reached the age of 64 years, unless retired prior to that time by reason of resignation, disability, or for cause to be determined by a court-martial legally convened for that purpose, and vacancies among said officers shall be filled by appointment from the officers of the militia of Michigan. Upon occurrence of a vacancy in any office in the * * * quartermaster corps * * *, said offices shall be filled by the governor from among a list of officers of the Michigan National Guard, recommended * * * by the State Military Board. (Emphasis supplied.)
See Public Acts 1957, p 035.
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Lesinski, C. J.
In the early morning of October 23, 1967, three officers of the Detroit Police Department were sent to investigate suspicious noises in a bar. According to the testimony at trial, two officers entered the front door of the bar and observed one man “in the middle of the bar and two figures in the rear of the bar.” The first man, James Henderson, was shot after refusing to heed the officer’s orders. Immediately thereafter defendant Richard Higginbotham was seen crawling out a broken rear door by an officer guarding the rear of the building. Defendant Higginbotham, James Henderson and Curtis Simpson were then arrested. After a joint jury trial, Higginbotham and Simpson were convicted of breaking and entering a business place with intent to commit larceny.
Defendant’s first allegation of error concerns the trial testimony of one of the employees of the bar. A review of the record reveals the following testimony:
“Q. All right, what did you do then?
“A. That time, I heard a shot on the outside.
“Q. Anything else?
“A. They took this one over here and he admitted was two other fellows with him.”
Defendant argues that this testimony violates the doctrine espoused in Bruton v. United States (1968), 391 US 123 (88 S Ct 1620, 20 L Ed 2d 476). In Bruton, the Supreme Court reversed a conviction obtained after a postal inspector testified that he had obtained an oral confession from Bruton’s co-defendant which specifically named Bruton. In this case, however, the codefendant’s statement did not directly implicate Higginbotham. This situation was discussed in United States v. Lipowitz (CA 3, 1969), 407 F2d 597, 602, certiorari denied sub nom Smith v. United States, 395 US 946 (89 S Ct 2026, 23 L Ed 2d 466):
“In the instant case the recital before the jury by Agent Crowley of Lipowitz’s inculpatory statements was so carefully restricted that neither Smith nor Muller was mentioned by name though Lipowitz’s statement did indicate that he had confederates in the robbery, ‘other fellows.’ * * #
“In sum, we can perceive no inculpation or implication whatsoever of Smith by Lipowitz’s confession. We hold therefore that the principle of Bruton is not applicable here and that Smith was not denied his right of confrontation.”
There was no error.
Defendant’s second argument is that he was denied adequate assistance of counsel. Our Supreme Court has recognized that there is often a difference of opinion between trial counsel and appellate counsel over trial tactics. People v. Martin (1920), 210 Mich 139. Consequently, we have closely examined the record to determine whether we are presented with such a difference in opinion or with actual inadequate representation.
The transcript of trial testimony establishes that the requirements of adequate counsel were met. As we have said on several occasions, counsel that is “only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation” is not effective representation. People v. Wynn (1968), 14 Mich App 268, 269; People v. Davison (1968), 12 Mich App 429, 434; People v. Crawford (1969), 16 Mich App 92, 96. However, defendant’s trial counsel cannot be so characterized. Effective representation does not mean successful representation. The trial attorney cross-examined witnesses, objected to the entering of exhibits and attempted to impress upon the jury the importance of their function. He was handicapped by the eyewitness testimony of the police officer who observed the defendant fleeing the closed bar at 6 a.m. Under the circumstances, counsel was more than adequate.
The final issue to be discussed is whether the affidavit of Henderson exonerating the defendant requires the granting of a new trial. According to the affidavit, information was withheld from the trial court which would absolve defendant. Defendant argues that this “newly discovered evidence” should be the basis of a new trial.
It has long been the rule in Michigan that, before a new trial can be granted on the basis of “newly discovered evidence,” that the evidence must meet four requirements. The evidence must be (1) newly discovered, (2) not cumulative, (3) of such a nature as to render a different result probable on retrial, and (4) of a nature that could not have been discovered with reasonable diligence for the first trial. Canfield v. City of Jachson (1897), 112 Mich 120, 123; Pociopa v. Olson (1968), 13 Mich App 324; People v. Keiswetter (1967), 7 Mich App 334. In this appeal the third requirement is important. Defendant was seen leaving the building by a police officer. That officer arrested the defendant in the back yard of the bar. The defendant was never out of the officer’s sight. In view of such testimony, it cannot be said that a different result would be probable. A new trial is not required.
Affirmed.
All concurred.
MCLA § 750.110 (Stat Aim 1968 Cum Supp § 28.305). Henderson entered a plea of guilty to a lesser offense after trial but before rendering of the jury verdict.
The codefendant quoted in the testimony did not testify at trial. | [
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R. B. Burns, J.
Defendant appeals his conviction by a jury of breaking and entering with intent to commit larceny. MCLA § 750.110 (Stat Ann 1969 Cum Supp § 28.305).
Two police officers, while on patrol, responded to a burglar alarm from a plating company. As they pulled into the parking lot at the rear of the building they saw defendant running away from the premises. One of the officers chased the defendant and apprehended him after ordering him to halt. Other police arrived at the scene, and it was observed that a windowpane was missing along the east side of the building and that a very distinct set of footprints led from the window to the “well” area of the loading dock and then to the corner of the building from which defendant was first observed by the arresting officers. In addition an orange-colored liquid was observed around the imprints which diminished in quantity as the footprints progressed away from the window. • A snow imprint of defend ant’s boot was made at the scene and was found to be identical to the footprints.
An inspection inside the building revealed that below the area of the missing pane was a tank filled with orange-colored liquid, and on the surrounding floor was a sawdust-like material saturated with the orange liquid. A footprint similar to those outside the window was observed in this material. Close at hand was found a 40-pound nickel anode which appeared to have been recently removed from a nearby plating tank. The bag in which it was contained was wet with plating solution and liquid was running on the catwalk where it was found. An investigating officer subsequently discovered a screw outside the broken window that was similar to one allegedly found among defendant’s belongings.
The clothing and boots worn by defendant at the time of arrest were examined by an expert. A stain was found on the coat which was proved to have been caused by a nickel solution. Stains on the defendant’s boots were found to be of a type of chromium associated with the plating industry.
The defendant testified on his own behalf. He stated that he was walking past the plating company Avhen he heard the burglar alarm go off which excited him and caused him to run. He further testified that the boots he was wearing had been given to him by an employee of a plating company. He denied that he had any screws in his possession or that he had identified any screws as belonging to him. He denied that he had been in the building or involved in the break-in.
Defendant raises five questions on appeal, only three of which we shall consider.
1. Defendant claims the verdict of the jury was contrary to law and against the great weight of the evidence; that People v. Spann (1966), 3 Mich App 444, and People v. Johnson (1966), 4 Mich App 205, dictate a reversal because defendant’s testimony presented a theory of innocence consistent with the circumstantial evidence which the prosecution failed to rebut.
People v. Johnson, supra, involved a defendant convicted of the crime of breaking and entering in the nighttime who appealed on the ground that there was not sufficient evidence as a matter of law to support the conviction. The Court therein said:
“The only criminating evidence adduced was the defendant’s presence at the scene of the crime and his activities which the police regarded as suspicious. His explanation was that he lived next door to the gasoline station and no evidence was introduced to show he did not. His exculpatory statements, even if regarded as false, while they might show a consciousness of guilt are no substantive evidence of it.”
The Court reversed because it could find “no evidence in the record which supports a conclusion that negatives every reasonable theory consistent with the defendant’s innocence.” Such is not the case here. The prosecution, through the testimony of the police officers, presented evidence that supported a conclusion negating defendant’s theory of innocence, to wit: a footprint similar to those made by defendant’s boots was discovered inside the plant; footprints leading away from the broken window were identical to those made by defendant’s boots; below the window was a vat containing an orange-colored liquid and this liquid was also on the floor around the vat; the same colored liquid was present in the footprints in diminishing amounts as they progressed away from the window; and the orange color on defendant’s boots was wet when he was taken into custody.
This evidence was sufficient to negate defendant’s theory that he was merely passing by the plating company when the alarm went off.
2. Defendant claims the introduction of exhibits into evidence over the objection of the defendant constituted error.
This question involves the admission of a screw alleged to have been among defendant’s personal possessions. Defendant challenged its admission on the basis that no one person or continuous series of persons had actually seen this screw taken from his person, marked as evidence and placed in a secure place.
The admission of the screw into evidence followed a thorough hearing by the trial court to establish the chain of evidence. Two officers testified that they had been present when the defendant was searched and that there had been a screw among his possessions which was put on the counter with the rest of his belongings and given to the turnkey. There was testimony by the officer who subsequently found a second similar screw, that he had been present when the defendant’s possessions were placed in a manila envelope by the turnkey and put in the numbered drawer which corresponded to defendant’s cell. A third officer testified that the defendant had been asked to identify his possessions and that when he (the officer) returned to the turnkey’s office he was given the envelope which contained defendant’s possessions, removed the screw and marked it. We find the proof sufficient to establish the identification of this evidence.
As stated in 22A CJS, Criminal Law, § 709, pp 949-951:
“To justify the admission, a proper foundation must be laid, and such articles must be identified as the articles they are purported to be, and shown to be connected -with the crime or with the accused; however, such identification is not required to be positive, absolute, certain, or wholly unqualified, and where there is some evidence for this purpose, objections to its sufficiency go to the weight rather than the admissibility of the articles in question.”
3. Defendant claims the court’s denial of the original transcript to him was a violation of the equal protection clauses of the constitutions of the United States and of the state of Michigan.
Defendant had been tried before and convicted by a jury for the same charge in a prior trial. The court granted a new trial without setting forth its reasons. Before the second trial which is the subject of this appeal defendant’s counsel petitioned the trial court for a transcript of the original trial, with a supporting affidavit by counsel stating he felt it necessary that a transcript be provided in order for him to adequately and properly represent the indigent defendant. The petition was denied.
A similar motion was made during the trial for the transcript of testimony of two police officers, and was denied by the court.
This issue is one of first impression in Michigan. The Court of Criminal Appeals of Texas, in Perbetsky v. Texas (Tex Crim App, 1968), 429 SW2d 471, held that an indigent defendant was not entitled to a transcript of his previous trial. Illinois, in People v. Wallace (1966), 35 Ill 2d 620 (221 NE2d 655), and People v. Delafosse (1967), 36 Ill 2d 327 (223 NE2d 125), held that an indigent defendant was entitled to a transcript of the previous trials and that to deprive him of such transcript was a denial of the equal protection of the laws.
The second circuit of the United States Court of Appeals has decided this issue on two occasions. In United States ex rel. Wilson v. McMann (CA 2, 1969), 408 F2d 896, Judge Medina held that the denial of a partial transcript of the people’s witnesses to an indigent defendant denied him the equal protection of the law and due process.
In United States v. Carella (CA 2, 1969), 411 F2d 729, the defendant had been furnished during the trial with a transcript of the direct testimony of one witness. After a mistrial counsel moved that he be furnished with the entire transcript of the trial. The motion was denied. The court stated on page 733:
“We are unwilling to say that a full transcript of a lengthy former trial, much of it relating to matters of no true concern to the indigent defendant, is invariably 'needed’, however convenient it might be for counsel thus to be able to avoid having to think out what he truly requires. By no means every nonindigent defendant would indulge in such extravagance, although a truly rich one very likely would. * * * Erhart has pointed to no instance where a transcript of the previous trial could possibly have assisted him.”
In our present case defendant’s counsel filed a motion accompanied by an affidavit which stated that it was necessary that he have a copy of the entire transcript to adequately and properly represent the defendant. We agree it might be convenient for counsel to have the entire transcript of the first trial. However, we are not convinced that the majority of nonindigent defendants would indulge in such an extravagance. We think it should be incumbent upon the defendant to ascertain that portion of the transcript needed and to offer substantial reasons for the need.
During the course of the trial counsel renewed his motion and limited his request to copies of the testimony of the two police officers for impeachment purposes. The trial judge denied the request as the trial was in progress and the judge did not feel that the trial should he interrupted to secure a transcript.
A trial judge must have certain discretion in conducting a trial and he did not abuse this discretion by refusing to interrupt the trial.
The other two issues raised by defendant have been considered but do not merit discussion.
Affirmed.
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Per Curiam.
Plaintiff is the holder of a 30-year franchise granted in 1942 by defendant Oakland Township. This franchise allowed plaintiff the right to locate equipment over township highways and the right to trim and cut trees as necessary for the safety of their equipment. Such activities are, by the franchise, subject to the approval of the township.
In the course of building a new power line plaintiff obtained permission and constructed three towers over roads in the township. At one point the branches of three trees grew too near the power-line, and permission to trim them was requested. Permission was denied by defendant. Plaintiff commenced this action for mandamus in Oakland County Circuit Court contending that permission had been wrongfully refused and should now be ordered.
On August 6,1969, the trial court judge found that the refusal of the township to grant permission was unreasonable and arbitrary, and the writ of mandamus was issued. An emergency appeal and stay of proceedings followed.
Defendant contends that its refusal of permission was a proper exercise of certain of its rights under the franchise agreement. It further contends that its refusal was not arbitrary but was contingent upon the decision of the circuit court in another case, allegedly related to this one.
Recently the Supreme Court handed down Detroit Edison Company v. City of Wixom (1969), 382 Mich 673, which we think is dispositive of the issues raised by defendant here. Even if the trial court erred in granting mandamus at the time of trial, it is cleár that under Detroit Edison Company v. City of Wixom, supra, mandamus could issue on remand. Therefore, since we have the authority to grant such equitable relief under Detroit Edison Company v. City of Wixom and GCR 1963, 820.1(7), we order that the circuit court upon remand issue the writ of mandamus.
No costs, a public question being involved. | [
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Lesinski, C. J.
Defendant Donnie C. Young was convicted after a jury trial of assault with intent to rob and steal being armed, MOLA § 750.89 (Stat Ann 1962 Rev §28.284). From this conviction defendant appeals as of right.
On May 16, 1967, two men entered a motel in the city of Inkster at approximately 11 p.m. After some conversation with the clerk on duty, who was the wife of the proprietor, they produced weapons and announced that it was a holdup. Upon hearing the commotion the owner came into the front office from the adjoining living quarters, whereupon he too was held at bay. In an effort to find more money, one of the holdup men took the owner back into the living quarters and the wife followed. After a scuffle with the owner, the thief said “let’s get the hell out of here”, ran back to the front office where the other waited, scooped some money from the cash register, and the two men ran out. The owner followed them out and waved down a passing police car. The police apprehended defendant and Ronald Carter almost immediately thereafter and placed them under arrest. A cap pistol was confiscated from Young and a .22-caliber revolver from Carter. A search of Young at the police station produced $48 in currency and $12.55 in change.
At trial Young testified on his own behalf. During the course of direct examination he admitted being at the motel on the evening of the holdup. It was his contention, however, that he was suffering from a bad hangover, resulting from an afternoon in a bar, and that he was sleepy, due to his having taken some pills known as Seconals or “reds.” Under this condition, Young claimed that he was not fully aware of what was going on and that if a holdup took place he was not a knowing participant. Although he admitted handling the cap pistol in the motel and in the presence of the victims, he testified that Carter had first held it, then handed it to Young, who tried to hand it back, but kept it when Carter refused to retake it. Young stated that Carter took the owner into an adjoining room and that the owner’s wife followed when Young put the cap pistol into his pocket. There was a tussling noise in the other room, Carter reappeared saying “let’s get the hell out of here”, and they left.
During the day following the holdup Young and Carter were presented to the witnesses in a lineup. The circumstances and result of the lineup are not presented in the record.
At trial, prior to the selection of the jury, defendant moved to suppress any testimony relating to the identification at the lineup until a separate preliminary hearing on the fairness of the lineup could be held. The motion was taken under advisement. Immediately prior to the prosecution’s calling of the desk clerk, the defendant again objected, arguing that a procedure similar to a “Walicer hearing” should be held to determine “whether there was a denial of due process in its [the lineup’s] composition and in its conduct.” Again the motion was taken under advisement. When the witness tes tilled that she recognized the defendant as one of the holdup men, defendant objected for a third time. The court overruled the objection.
The first issue raised on appeal is whether defendant was denied due process by the trial court’s refusal to hold a separate preliminary evidentiary hearing.
Initially we note that the issue was properly preserved for appeal by defendant’s timely motion. People v. Childers (1969), 20 Mich App 639. We therefore turn to the merits.
It is argued by the people that the question is controlled by People v. Barrow (1969), 17 Mich App 624. There we held that United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149), which held that accused persons have the right to counsel at lineups, was not retroactive. The lineup in the instant case occurred May 17, 1967, several weeks prior to the effective date of Wade, June 12, 1967.
This argument, however, overlooks a fundamental distinction. The Wade decision established an exclusionary rule for identifications made during confrontations at which defendant was denied his right to counsel. Independent of the right to counsel, however, is the right to have a lineup not unnecessarily suggestive in nature when viewed within “the totality of the circumstances surrounding” the confrontation. Stovall v. Denno (1967), 388 US 293, 302 (87 S Ct 1967, 1972, 18 L Ed 2d 1199, 1206). Thus, whether or not a lawyer is present and whether or not the lineup took place before Wade, the right exists as an element of due process.
The distinction was clearly noted in Stovall v. Denno, supra, where the Court noted at pp 301, 302:
“We turn now to the question whether petitioner, although not entitled to the application of Wade and Gilbert to his case, is entitled to relief on his claim that in any event the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law. This is a recognised ground of attach upon a conviction independent of any right to counsel claim. Palmer v. Peyton (CA 4, 1966), 359 F2d 199.” (Emphasis supplied.)
Even prior to Wade this distinction was set forth in Palmer v. Peyton (CA 4, 1966), 359 F2d 199. There the court noted by way of footnote at p 202:
“At the reargument of this case, we requested discussion of the possible effect of the fact that Palmer was without counsel at the identification, in light of Escobedo v. Illinois (1964), 378 US 478 (84 S Ct 1758, 12 L Ed 2d 977). Cf. United States, ex rel. Stovall v. Denno (CA 2, 1966), 355 F2d 731. We do not reach Escobedo problems, however, since we conclude that the entire atmosphere surrounding the identification was a violation of due process.”
In the course of the witness’s testimony, no mention was made of the pretrial lineup. The fact that the witness did not testify regarding the prior identification does not in any way remove the taint of a prejudicial lineup if such a taint in fact exists.
Finally, the point is raised that since defendant has testified that he was present at the motel, any possible dispute as to whether the identification is correct is foreclosed. We disagree.
Tbe record in tbe instant case is absolutely devoid of any indication of wbat events occurred at tbe lineup. We are unable to say on tbe basis of sucb a record tbat tbe lineup was not conducted in an unnecessarily suggestive manner. We are also unable to say that but for tbe lineup tbe witnesses would have been able to identify defendant at trial. Moreover, but for tbe identification at trial, defendant’s testimony might not be on tbe record.
When tbe fairness of a pretrial lineup is timely raised, identification testimony of those participating in tbe lineup process should not be admitted in evidence until a separate determination is made tbat the lineup was held in a manner consistent with tbe requirements of due process, or tbat tbe in-court identification would be free of taint and would have an independent origin.
We are not satisfied beyond a reasonable doubt that the lineup did not contribute to defendant’s conviction. Chapman v. California (1967), 386 US 18 (87 S Ct 824, 17 L Ed 2d 704); People v. Teal (1969), 20 Mich App 176.
In People v. Walker (1965), 374 Mich 331, the Court held that a separate evidentiary hearing was required to determine the voluntariness of a confession. The decision was in direct response to the United States Supreme Court’s opinion in Jackson v. Denno (1964), 378 US 368 (84 S Ct 1774, 12 L Ed 2d 908, 1 ALR3d 1205). The basis for the rule set forth in Jackson was twofolded. At p 379 the Court noted that when a jury returns a general verdict of guilty:
“It is impossible to discover whether the jury found the confession voluntary and relied upon it, or involuntary and supposedly ignored it. Nor is there any indication of how the jury resolved disputes in the evidence concerning the critical facts underlying the coercion issue. Indeed, there is nothing to show that these matters were resolved at all, one way or the other.”
The second difficulty with having the jury resolve the issue was set forth earlier in Stein v. New York (1953), 346 US 156, 177 (73 S Ct 1077, 1089, 97 L Ed 1522, 1539), and cited in Jackson at p 380:
“Perhaps a more serious, practical cause of dissatisfaction is the absence of any assurance that the confessions did not serve as makeweights in a compromise verdict, some jurors accepting the confessions to overcome lingering doubt of guilt, others rejecting them but finding their doubts satisfied by other evidence, and yet others or perhaps all never reaching a separate and definite conclusion as to the confessions but returning an unanalytical and impressionistic verdict based on all they had heard.”
The same reasoning applies to pretrial confrontations. When a general verdict of guilty is returned, it is impossible to determine how a jury resolves the issue of the fairness and possible taint of a lineup or whether they resolve it at all. Further, a jury may use a pretrial identification as a makeweight to resolve doubt against a defendant despite its possibly being the result of unnecessarily suggestive circumstances.
We, therefore, remand for an evidentiary hearing out of the presence of the jury to determine whether the pretrial confrontation was “unnecessarily suggestive” and whether defendant was thereby denied due process of law. See, also, Stovall v. Denno, supra, and People v. Childers, supra. As noted in Stovall at p 302, “a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it.” This standard is to be followed on remand.
Should it be concluded that the lineup was unnecessarily suggestive, all products of the confrontation are inadmissible. However, the prosecutor is to be given “the opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification.” United States v. Wade, supra, at p 240.
On remand the question of who has the burden of proof will arise. This is especially relevant in the instant case as defendant has failed to allege any facts to support his general challenge to the fairness of the confrontation.
Of the few cases on point, People v. Blumenshine (1969), 42 Ill2d 508 (250 NE2d 152, 154), held that a defendant claiming a denial of due process “must prove that 'the confrontation conducted * * * was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied dne process of law.’ ” No reasons were given to support the conclusion that the burden should always be on defendant.
There is a major difficulty, however, with putting such a burden on the defendant in all cases. In many types of confrontations the defendant will be totally unaware of the fact that witnesses are trying to identify him. When this happens it may well be impossible for defendant to know who was present at the confrontation, what was said or what facts existed which might make it “unnecessarily suggestive”. The same is also true even where defendant knows he is being put in a lineup.
Putting the burden of proof on defendant in these situations may well result in denying him proeedurally a right which is purportedly granted substantively. In the area of constitutionally guaranteed rights (here due process) such a result is not favored.
Moreover, in the analogous case where defendant challenges the voluntariness of his confession, it has long been the law that the burden is on the prosecutor. As noted in People v. Boyce (1946), 314 Mich 608, 612, 613: “It was incumbent on the prosecution to prove that the confessions were voluntary.”
We conclude, therefore, that for identifications made at a confrontation out of the presence of defendant’s attorney, the burden is on the prosecution to show fairness.
A distinguishable situation appears to exist, however, where defendant has counsel present at the confrontation. For if counsel is present it is clearly his duty to observe and note the events and to learn, if possible, the identity of those present. Where counsel is present, it would be up to defendant to allege and factually support a claim that the confrontation was unnecessarily suggestive.
Defendant also questions the jury instructions given by the court below on several grounds. No objections were raised below although given specific opportunity by the trial court. Failure of timely objection waives such issues. People v. Allar (1969), 19 Mich App 675; People v. Mallory (1966), 2 Mich App 359; GCR 1963, 516.2.
Remanded for actions not inconsistent with this opinion.
All concurred.
People v. Walker (On rehearirig, 1965), 374 Mich 331.
See, also, Foster v. California (1969), 394 US 440 (89 S Ct 1127, 22 L Ed 2d 402); United States ex rel. Rutherford v. Deegan (CA 2, 1969), 406 F2d 217; People v. Blumenshine (1969), 42 Ill 2d 508 (250 NE2d 152); People v. Conley (1949), 275 App Div 743 (87 NYS2d 745); and People v. Gerace (1938), 254 App Div 135 (5 NYS2d 29).
A similar argument was raised by tbe prosecutor in People v. Wright (1967), 6 Mich App 495. There this Court stated beginning at p 502.
“The prosecution further argues that the voluntariness issue is now academic since defendant took the stand and testified in open court that he shot Officer Bergum. This argument is spurious for two reasons. First, it unjustifiably assumes that the confession entered into evidence had no effect upon defendant’s talcing the witness stand. It is more than idle speculation to conclude from this record that the confession’s admission placed the defendant in a position of being compelled to take the stand to explain why he had shot the officer. Secondly, the prosecution’s argument assumes that the admission of confessions involuntarily rendered would not require reversal when there is separate and sufficient incriminating evidence to sustain a conviction. In this regard the United States Supreme Court stated in Jackson v. Denno, supra, at p 376:
“ ‘It is now axiomatie that a defendant in a criminal ease is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, Rogers v. Richmond (1961), 365 US 534 (81 S Ct 735, 5 L Ed 2d 760), and even though there is ample evidence aside from the confession to support the conviction. Malinski v. New York (1945), 325 US 401 (65 S Ct 781, 89 L Ed 1029); Stroble v. California (1952), 343 US 181 (72 S Ct 599, 90 L Ed 872) ; Payne v. Arkansas (1958), 356 US 560 (78 S Ct 844, 2 L Ed 2d 975).’ ” (Emphasis supplied.)
See, also, 1 Gillespie, Michigan Criminal Law & Procedure (2d ed, 1969 Cum Supp) § 527, p 120, where it is noted:
“The issue of the voluntariness of the defendant’s confession is not rendered moot by his taking the stand and testifying ineulpatively at trial, since the introduction of the confession may have obliged him to testify defensively, and since the use in evidence of the involuntary confession requires reversal notwithstanding that there is sufficient evidence to convict aside from the confession.”
Some obvious examples are the use of one-way mirrors to observe defendant while he is being interviewed by a police ofdeer ^nd th? use of photographs, | [
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Per Curiam.
Defendant Detroit Automobile Inter-Insurance Exchange (hereinafter defendant Exchange) appeals by right the trial court’s grant of summary declaratory judgment in favor of plaintiff.
Plaintiff’s decedent, Ronald Kudek, was a self-employed mechanic. While working on the dual wheel and tire assembly of a customer’s truck the wheel exploded, resulting in the injuries that led to his death. Kudek’s personal vehicle was insured by defendant Exchange under a policy of no-fault insurance. His widow brought suit against defendant Exchange and the Michigan Mutual Insurance Company, insurer of the truck, seeking to recover personal protection insurance benefits. The parties stipulated to the facts, and brought motions for summary judgment. The trial court dismissed Michigan Mutual from the case and granted summary judgment in favor of plaintiff on the ground that there was no issue of material fact and plaintiff was entitled to judgment as a matter of law. GCR 1963, 117.2(3).
There is no dispute as to the propriety of summary judgment, nor does there appear to be a dispute as to the applicability of MCL 500.3105; MSA 24.13105, which authorizes the payment of personal protection benefits "for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle.” See Shinabarger v Citizens Mutual Ins Co, 90 Mich App 307, 313-315; 282 NW2d 301 (1979), lv den 407 Mich 895 (1979). Rather, the issue in this case is whether the truck was "parked”, so that benefits were properly denied under the exclusion for parked vehicles found in MCL 500.3106; MSA 24.13106, which states:
"Accidental bodily injury does not arise out of the ownership, operation, maintenance or use of a parked vehicle as a motor vehicle unless any of the following occur:
"(a) The vehicle was parked in such a way as to cause unreasonable risk of the bodily injury which occurred.
"(b) The injury was a direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was being operated or used or property being lifted onto or lowered from the vehicle in the loading or unloading process.
"(c) The injury was sustained by a person while occupying, entering into or alighting from the vehicle.”
Under this section, benefits are not payable for accidental bodily injury arising out of the maintenance of a "parked” vehicle, unless one of the specific exceptions apply.
Plaintiff does not try to fit into any of the exceptions, but argues instead that the truck was not parked. The term "parked” is not defined in the no-fault act, so plaintiff turns to the Michigan Vehicle Code where the following definition is found:
" 'Parking’ means standing a vehicle, whether occupied or not, upon a highway, when not loading or unloading except when making necessary repairs.” MCL 257.38; MSA 9.1838.
From this definition plaintiff contends that (1) because the truck was not on a highway, but rather in decedent’s shop, it was not "parked” and (2), in any event, the vehicle was not parked because necessary repairs were being made. Plaintiff argued in the trial court that unless this definition was adopted for purposes of the no-fault act persons injured while changing tires or making other necessary repairs on the highway would be excluded from recovering personal protection benefits. Plaintiff finally argues that the ordinary and common usage of the term "parked” does not encompass vehicles, whether on or off the highway, which are undergoing repairs.
Defendant Exchange argues that the truck in this case was clearly parked and that none of the exceptions apply. It further contends, based on the various legislative proposals considered during debate on the no-fault act, including § 1(a)(6) of the Uniform Motor Vehicle Accident Reparations Act, 14 ULA, p 51, that the Legislature did not intend no-fault benefits to be payable in cases where a person was injured while servicing a vehicle in the course of a business and while on business premises. Defendant Exchange agrees that the Legislature did not intend to deny benefits to a person injured while making necessary repairs on a highway, and would read MCL 257.38; MSA 9.1838 into the no-fault act to that extent.
A recent decision of this Court also supports the defendant Exchange’s position. In Miller v Auto-Owners Ins Co, 92 Mich App 263; 284 NW2d 525 (1979), lv gtd 408 Mich 897 (1980), the plaintiff was installing shock absorbers on his car in the parking lot of his apartment building when the car fell from the supports used to elevate the rear end, crushing his chest. The trial court defined parking as the voluntary and temporary act of leaving a vehicle not in use. Because the trial court found that the plaintiff had not left his vehicle, but instead was working on it, it held the vehicle was not parked within the meaning of the statute. After analyzing MCL 500.3106; MSA 24.13106, this Court reversed, holding the trial court’s definition to be too narrow. The Court noted that the statute excluded benefits for bodily injury arising from the maintenance of a parked vehicle, apparently wondering how a person could be engaged in the maintenance of a vehicle that had been left. The Court also observed that if the trial court’s definition were accepted, the exceptions in subsections (b) and (c) of MCL 500.3106 would be meaningless. Accordingly, the Court held the car to have been parked:
"In another context, this Court has said: 'Parking is merely one form of stopping.’ Bensinger v Happyland Shows, Inc, 44 Mich App 696, 702; 205 NW2d 919 (1973). Although every stopped vehicle clearly is not parked (e.g., vehicles stopped by a trafile jam or by a red light), we are of the opinion that a vehicle in a parking lot, with the engine stopped and the rear wheels on blocks is a parked vehicle.” Miller v Auto Owners Ins Co, supra, 266.
Although the Court made reference to the Michigan Vehicle Code’s definition of "parking” in a footnote, it did not do so in terms of the construction advocated by plaintiff in the instant case.
After careful consideration, we find we must reject plaintiffs contentions regarding the definition of "parking” found in the Michigan Vehicle Code, MCL 257.38; MSA 9.1838. That code is intended, inter alia, "to provide for the * * * regulation of vehicles operated upon the public highways of this state”. For purposes of the code there was no need to define parking in terms other than "upon a highway”. See MCL 257.672-257.675; MSA 9.2372-9.2375. The code’s definition of parking, accordingly, does not limit the definition of parking under the no-fault act to the standing of a vehicle upon a highway. We believe that under the similar factual situation present in Miller v Auto Owners Ins Co, supra, the truck in the instant case was "parked” within the meaning of MCL 500.3106; MSA 24.13106.
Despite this holding, we do not believe that it will result in a situation where persons who are injured while making repairs on the highway will be unable to recover personal protection benefits. First, we note that Michigan courts have broadly defined the term "occupying” to include those who are not actually inside a vehicle at the time of injury. See Dowdy v Motorland Ins Co, 97 Mich App 242; 293 NW2d 782 (1980). Accordingly, persons who have exited from a car temporarily in order to make repairs might still be able to recover under the exception in MCL 500.3106(c); MSA 24.13106(c). Secondly, we believe that when a vehicle is standing on a highway for the purpose of making necessary repairs, the definition found in the Michigan Vehicle Code (MCL 257.38; MSA 9.1838), which code pertains to the regulation of vehicles operated on public highways, would apply and the vehicle would not be deemed to be "parked” for purposes of the no-fault act.
Because we hold the vehicle in the instant case was "parked”, the trial court’s grant of summary judgment must be reversed. From the record before us, however, it does not appear that the trial court considered the question of whether any of the exceptions found in MCL 500.3106(a)-500.3106(c); MSA 24.13106(a)-24.13106(c) are applicable to the instant case. Accordingly, this case is remanded to the trial court for a determination of whether the instant case falls within any of the exceptions listed in the statute. See Miller v Auto Owners Ins Co, supra, 266-267. We do not retain jurisdiction.
Reversed and remanded. | [
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D. E. Holbrook, Jr., J.
On June 29, 1972, plaintiff filed a petition for hearing with the Workmen’s Compensation Bureau, claiming that he sustained personal injuries resulting from employment with the City of Detroit General Hospital. On June 13, 1973, after consultation between the hearing referee and the parties, an amended petition was filed adding the Second Injury Fund as a party and further alleging total and permanent disability due to incurable insanity. Disability benefits were awarded to the plaintiff for two years preceding the filing of the first petition.
At issue is the correct interpretation of MCL 418.381(2); MSA 17.237(381)(2), which provides:
"Whenever weekly payments are due an injured employee under this act, such payments shall not be made for any period of time earlier than 2 years immediately preceding the date on which the employee filed application for hearing with the bureau.”
The Second Injury Fund appeals by leave contending that the second petition filed by plaintiff should have been used as the measuring point for the two-year-back provision. We disagree. The two-year-back rule is similar to the statute of limitations. Just as the statute of limitations is tolled when suit is filed, so is the two-year-back rule.
Defendant cites Lynch v Briggs Manufacturing Co, 329 Mich 168; 45 NW2d 20 (1950), in which the plaintiff filed three separate petitions for adjustment of a compensation claim. The first two petitions were either withdrawn by the plaintiff or dismissed for lack of prosecution. In construing the one-year-back provision of MCL 418.833(1); MSA 17.237(833)(1), the Court held that plaintiff was entitled to benefits for one year prior to the third petition only. Lynch is distinguishable from the case at bar for two reasons. First, it interprets a different section of the act. The one-year-back rule acknowledges that the plaintiff is already receiving benefits because of an earlier petition. Second, the earlier petitions in Lynch were dismissed, and the final petition was not filed until several months later. In the instant case, the amended petition is not a new application. Plaintiffs petition was a continuing claim; it was neither withdrawn nor dismissed. Here, defendant’s rights were protected by prompt, ongoing, and uninterrupted notice.
Under MCL 418.847; MSA 17.237(847), the injured employee is required to file an application stating "* * * the general nature of any claim as to which any dispute or controversy may have arisen * * Plaintiff is required only to state the employer, along with the general nature of a potential claim. The jurisdiction of the hearing referee then vests simultaneously over the case against the employer and against the Second Injury Fund. The fund’s liability is derivative from that of the employer. White v Wienberger Builders, Inc, 397 Mich 23, 30; 242 NW2d 427 (1976). If liability is derivative, then it may also be said to be parallel, thus precluding a due process and notice argument by defendant. The statute and rules governing the application for benefits do not require that the employee list the Second Injury Fund as a defendant. Moreover, the statute provides for reimbursement to the employer by the Second Injury Fund where total and permanent disability differential benefits have been paid.
In the instant case, we are not dealing with two separate petitions in which one was withdrawn or dismissed. In such a situation, there is a danger that the parties may not be aware of the proceedings against them for an indefinite period of time. Here we have an ongoinng case. While it is true that the fund must pay additional benefits, these benefits were determined to be due to the employee. It is more consistent with the spirit of the act, being socially remedial, to consider the initial application as the measuring date for the two-year-back rule. Gomez v Campbell, Wyant & Cannon Foundry, 78 Mich App 145; 259 NW2d 400 (1977).
Affirmed. | [
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Bronson, J.
This case comes to us on a settled statement of facts. In May, 1978, plaintiffs filed a complaint for injunctive relief and damages in the Marquette County Circuit Court, requesting that the state prison in Marquette be required to conform to the Michigan Housing Act of 1917. At this same time, plaintiffs also sought a declaration that the Marquette municipal fire code was applicable to the prison.
On or about July 3, 1978, the Department of Corrections filed a motion for accelerated judgment, or alternatively, for summary judgment. On July 21, 1978, the circuit court denied the motion in its entirety. At that time, the court delivered an opinion from the bench to the effect that both the state housing act and the municipal fire code applied to the prison.
A motion for rehearing was filed on August 31, 1978. The motion was granted and the matter reheard on January 12, 1979. Following the rehearing, the circuit court reaffirmed its holding that the state housing act applied to the prison, while determining that the municipal fire code did not. An order granting in part and denying in part defendant’s motion for summary judgment was entered on January 24, 1979.
Plaintiffs then moved for a rehearing on the basis that the municipal fire code was made applicable to the Marquette state prison through the housing act. The motion was heard and denied on April 16, 1979. The denial of the motion was premised upon "a controlling question of law as to which there is substantial grounds for difference of opinion and immediate appellate court resolution of said issue may materially advance the ultimate termination of the litigation”.
Plaintiffs were granted leave to file a delayed appeal on August 20, 1979. Thereafter, on or about September 5, 1979, plaintiffs filed a claim of appeal. On September 19, 1979, defendant filed a cross-appeal, contesting the validity of the trial court’s determination that the housing act is applicable to the state prisons.
In our opinion, the learned trial court erred in deciding that the housing act was applicable to the prison, while holding that the municipal fire code was not. Marquette prison is either subject to both or neither. MCL 125.539(a); MSA 5.2891(19)(a) incorporates into the state housing act by reference the municipal fire code of the community where a building subject to the act is located. Cf. DeGaynor v Dickinson County Memorial Hospital Board of Trustees, 363 Mich 428, 432-433; 109 NW2d 777 (1961).
Essentially, resolution of this case turns on the proper construction to be given conflicting pieces of legislation. MCL 125.402(3); MSA 5.2772(3) provides in relevant part:
"Multiple dwellings of class b are dwellings which are occupied, as a rule transiently, as the more or less temporary abiding place of individuals who are lodged, with or without meals, and in which as a rule the rooms are occupied singly and without any attempt to provide therein or therewith cooking or kitchen accommodations for the individual occupants. This class includes hotels, lodging houses, boarding houses, fur nished room houses, club houses, convents, asylums, hospitals, jails and all other dwellings similarly occupied, whether specifically enumerated herein or not.” (Emphasis added.)
Although this provision does not explicitly include prisons, the inclusion of "jails and all other dwellings similarly occupied” within its ambit leads us to the conclusion that, standing by itself, the housing code applies to state prisons. This conclusion is dictated by the rules of statutory construction, particularly the rule of ejusdem generis. See, People v Smith, 393 Mich 432, 436; 225 NW2d 165 (1975).
Our analysis cannot end here, however. We must also consider the effect of legislation establishing the State Department of Corrections. MCL 791.202; MSA 28.2272 provides as is pertinent:
"The commission shall constitute the responsible authority for the administration of the penal institutions, prison industries, parole and probation of the state, subject to the limitations hereinafter set forth. The commission shall determine all matters relating to the uniñed development of the penal institutions, prison industries, parole and probation of the state and shall coordinate and adjust the agencies and penal institutions within its jurisdiction so that each shall form an integral part of a general system.” (Emphasis supplied.)
Furthermore, the Legislature expressly provided that:
"Subject to constitutional powers vested in the executive and judicial departments of the state, the department shall have exclusive jurisdiction over the follow ing: * * * (c) penal institutions * * *.” MCL 791.204; MSA 28.2274. (Emphasis added.)
Finally, the title to the act establishing the Department of Corrections states in part:
"AN ACT to revise, consolidate and codify the laws relating to * * * the administration of penal institutions * * * to create a state department of corrections, and to prescribe its powers and duties * * * and to repeal all acts and parts of acts inconsistent with the provisions of this act. ” (Emphasis added.)
The above portions of the act creating the Department of Corrections evidence a legislative intent to vest the department with complete jurisdiction over the state prisons and to nullify the applicability of any contradictory legislation. It is presumed that the Legislature has knowledge of existing laws when it enacts a statute. People v Buckley, 302 Mich 12, 21; 4 NW2d 448 (1942), Skidmore v Czapigo, 82 Mich App 689, 691; 267 NW2d 150 (1978), lv den 403 Mich 810 (1978), People v Rosecrants, 88 Mich App 667, 670; 278 NW2d 713 (1979). The housing statute was adopted in 1917, while the legislation creating the Department of Corrections was not enacted until 1953. In the absence of any evidence to the contrary, we must conclude that the Legislature intended to relieve the Department of Corrections from the obligation of maintaining the state penal institutions in compliance with the housing code.
We are not required to rest our decision solely on general rules of statutory construction, however. In Dearden v Detroit, 403 Mich 257; 269 NW2d 139 (1978), the Supreme Court construed the same provisions of the Department of Corrections act under consideration here and came to the conclusion that the department was not subject to municipal zoning ordinances promulgated pursuant to the Zoning Enabling Act. While Dearden could be limited to its facts, the sweeping language used in that opinion is clearly applicable to the instant matter.
We also note that the housing provisions of the new Public Health Code do not include the same definition of class b multiple dwellings found in MCL 125.402(3); MSA 5.2772(3). MCL 333.12202(1); MSA 14.15(12202)(1) specifically provides that under the Public Health Code temporary housing shall not constitute a dwelling and is thus not subject to the code. Although the housing provisions of the Public Health Code are not yet in effect, we consider the fact that temporary housing is excluded under the code to reflect a legislative intent that the State Department of Corrections Act supersedes the Housing Act of 1917. Had the Legislature desired Michigan housing provisions to apply to the prisons we would have expected some expression of this intent in article 12 of the Public Health Code. While it might be sound public policy to require the state penal institutions to be in compliance with state housing laws, this is a determination that must be made by the Legislature.
Since the housing chapter of the Public Health Code is not yet in effect, we decline to address plaintiffs’ contention that said chapter represents an unconstitutional delegation of legislative power.
Affirmed in part; reversed in part.
MCL 125.401 et seq.; MSA 5.2771 et seq. The Housing Act of 1917 is to be replaced by the housing provisions of article 12 of the Public Health Code, MCL 333.12201 et seq.; MSA 14.15(12201) et seq. However, pursuant to MCL 333.25103; MSA 14.15(25103), the housing act is not repealed until "all or the principal part of the rules promulgated” under MCL 333.12211; MSA 14.15(12211), take effect. These rules have not yet been promulgated.
MCL 791.201 et seq.; MSA 28.2271 et seq.
This language is currently embodied in MCL 791.202(1); MSA 28.2272(1). MCL 791.202; MSA 28.2272 was amended effective September 28, 1978. This amendment in no manner affects our analysis.
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Per Curiam.
On July 30, 1976, Lois M. Polyhronos was working as a waitress for the Coach Stop Restaurant, also known as Wagonwheel Saloon, in Troy, Michigan. Defendant, while operating a motor vehicle near the restaurant, struck an electric transformer and cut off all power to the restaurant. In the resulting darkness, Ms. Polyhronos fell and sustained serious injuries to her knee and leg. Subsequently, plaintiff, the restaurant’s in surer, began paying workers’ compensation benefits to Ms. Polyhronos.
On June 19, 1979, plaintiff sued defendant for reimbursement of benefits it had paid to the insured employee, Ms. Polyhronos. After a hearing on September 26, 1979, the trial court entered summary judgment for defendant pursuant to GCR 1963, 117.2(1).
When reviewing a summary judgment motion granted under GCR 1963, 117.2(1), this Court accepts as true all of plaintiff’s factual allegations and conclusions. The test then becomes whether plaintiff’s claim is so clearly unenforceable as a matter of law that no factual development of those allegations and conclusions would result in recovery. Antkiewicz v Motorists Mutual Ins Co, 91 Mich App 389, 393; 283 NW2d 749 (1979), Sullivan v The Thomas Organization, PC, 88 Mich App 77, 82; 276 NW2d 522 (1979).
MCL 418.827(1); MSA 17.237(827X1) recognizes the injured worker’s right to sue a third-party tortfeasor. If that worker chooses not to sue, then the insurer can sue in his place to obtain reimbursement, MCL 418.827(5); MSA 17.237(827X5). In the instant case, Ms. Polyhronos chose not to sue, so plaintiff brought suit to enforce defendant’s liability.
The Michigan no-fault insurance act was enacted as a substitute for common law tort remedies. Shavers v Attorney General, 402 Mich 554, 578-579; 267 NW2d 72 (1978). Tort liability remains only for noneconomic injury or for certain, limited economic loss. MCL 500.3135; MSA 24.13135. Since no claim regarding the economic exception of §3135 was made until appeal, that claim has been waived. Klager v Robert Meyer Co, 95 Mich App 319; 290 NW2d 132 (1980).
The specific issue here, whether an insurance carrier is entitled to reimbursement from a third-party tortfeasor of medical and wage loss benefits paid to a worker injured in an automobile accident, has been addressed by this Court in Great American Ins Co v Queen, 86 Mich App 362; 272 NW2d 659 (1978), Reliance Ins Co v Messina Trucking, Inc, 83 Mich App 159; 268 NW2d 328 (1978), and most recently in Logan v Edward C Levy Co, 99 Mich App 356; 297 NW2d 664 (1980). In each case this Court has held that although the injured party may recover noneconomic damages, an insurer which has paid only economic benefits may not.
In the instant case, plaintiffs complaint did not allege facts which would support recovery on any economic theory under MCL 500.3135(2)(a); MSA 24.13135(2)(a) or MCL 500.3135(2)(c); MSA 24.13135(2)(c). In light of the basic limitation to noneconomic recovery of MCL 500.3135; MSA 24.13135, this suit evidently was brought to seek noneconomic reimbursement. Since plaintiff has not paid any noneconomic benefits to the injured worker, it may not recover any such funds. It is clear that no factual development could have led to plaintiff’s recovery, thus, summary judgment was properly awarded below.
Affirmed. No costs, interpretation of a statute being at issue.
"(1) A person remains subject to tort liability for noneconomic loss caused by his ownership, maintenance or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function or permanent serious disfigurement.
"(2) Notwithstanding any other provision of law, tort liability arising from the ownership, maintenance of use within this state of a motor vehicle with respect to which the security required by subsections (3) and (4) of section 3101 was in effect is abolished except as to:
"(a) Intentionally caused harm to persons or property. Even though a person knows that harm to persons or property is substantially certain to be caused by his act or omission, he does not cause or suffer such harm intentionally if he acts or refrains from acting for the purpose of averting injury to any person, including himself, or for the purpose of averting damage to tangible property.
"(b) Damages for noneconomic loss as provided and limited in subsection (1).
"(c) Damages for allowable expenses, work loss and survivor’s loss as defined in sections 3107 to 3110 in excess of the daily, monthly and 3 year limitations contained in those sections. The party liable for damages is entitled to an exemption reducing his liability by the amount of taxes that would have been payable on account of income the injured person would have received if he had not been injured.”
Amended by 1979 PA 147. | [
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] |
D. F. Walsh, J.
Defendant appeals his jury conviction of the offense of taking fish in the waters of the State of Michigan with a gill net, MCL 302.1; MSA 13.1602.
On August 10, 1978, Michigan Conservation Officers observed defendant in the back of a pickup truck that was parked in the waters of Lake Michigan. A fishing boat, containing approximately 800 pounds of lake trout and whitefish entangled in gill nets, was parked alongside a truck. Both the boat and the nets belonged to Indian fishermen who were also present at the location. Defendant, a non-Indian, assisted the fishermen by pulling in the nets from the boat to the truck. The officers intervened and requested identification. Unlike the others, defendant did not produce a Bureau of Indian Affairs card. He was subsequently charged with violating MCL 302.1; MSA 13.1602.
In affirming the decision of the district court, the circuit judge stated that the instant offense involved a series of acts which included placing the net in the water, ensnaring the fish, removing the net and fish into a receptacle such as a boat, and then transferring the fish from the boat to some means of transporting the fish from the lake.
The issue on appeal is whether defendant’s conduct fits within the statutorily proscribed activity, i.e., the taking of fish in state waters with a gill net. We hold that defendant’s actions did not amount to a "taking” of fish and defendant’s conviction must be reversed.
MCL 302.1; MSA 13.1602, provides that:
"A person shall not take, catch, or kill * * * a fish in the waters of this state with * * * a net * *
The term "taking” has been the subject of prior judicial interpretation with reference to this state’s fishing laws because fish are considered to be ferae naturae and property of the state until "taken”. Aikens v Dep’t of Conservation, 387 Mich 495; 198 NW2d 304 (1972). In Lincoln v Davis, 53 Mich 375, 391; 19 NW 103 (1884), the Supreme Court likened taking to "capture”, and according to Sterling v Jackson, 69 Mich 488, 541; 37 NW 845 (1888) (Campbell, J., dissenting), one cannot obtain an interest in any ferae naturae until it has been taken into one’s own keeping. Similarly, in People v Collison, 85 Mich 105, 108; 48 NW 292 (1891), the Court stated that "no individual has any property right in [the fish] until they have been subjected to his control”. Finally, in Beach v Hayner, 207 Mich 93, 96; 173 NW 487 (1919), taking was described as tantamount to reducing to actual possession.
Based on these definitions, the term "taking” denotes the exertion of such control over an object that the object can be said to have come into one’s possession. Utilizing this meaning, we cannot regard defendant’s conduct as a "taking” of fish. Defendant’s participation in the Indians’ legal fishing expedition was limited solely to assistance in transferring the netted fish from the boat to the truck. Defendant did not partake in any activity in the boat which resulted in netting the fish. The term "taking” refers to the capturing or reducing to actual possession that occurred when the fish were retrieved from the water and placed in the boat. The fish had already been "taken” in the state waters when defendant became involved in the activity near the shoreline. In our judgment, defendant’s actions do not fall under the proscriptions of the statute.
In view of our disposition of this issue, we need not address the other arguments raised by defendant.
Defendant’s conviction is reversed and his sentence is hereby vacated.
G. R. McDonald, J., concurred. | [
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] |
D. F. Walsh, J.
Defendant, Ricky Martin, was convicted, in a nonjury trial, of prison escape. MCL 750.193; MSA 28.390. He was also found guilty of being a second felony offender. MCL 769.10; MSA 28.1082. He was sentenced to a prison term of one year and four months to seven years and six months, to be served consecutively to the sentence which was being served by him on the day of his escape.
Prior to trial the prosecution filed a motion in limine to exclude evidence of the anticipated defense of medical necessity. Defendant, another inmate, and the prison’s medical records administrator testified at the hearing on the motion. At the close of proofs, the trial court ruled that defendant would not be allowed to present the defense of medical necessity to a jury. The court’s ruling was based on its evaluation of the evidence in light of the requirements set forth in People v Hocquard, 64 Mich App 331, 337-338; 236 NW2d 72 (1975), lv den 397 Mich 833 (1976). Because of the court’s ruling, defendant waived trial by jury. The defense presented no opening statement, no witnesses and no closing argument. The court found defendant guilty of prison escape.
The Supreme Court has recently reiterated the right of a criminal defendant, in a jury trial, to have the trier of fact instructed on a defense theory when there is a request for the instruction and evidence to support it. People v Frederick Lester, 406 Mich 252; 277 NW2d 633 (1979). Once the defendant has presented some supporting evidence, it is for the jury to determine, under proper instructions, its sufficiency. People v Hoskins, 403 Mich 95; 267 NW2d 417 (1978).
In our judgment, the trial court in the instant case impermissibly invaded the province of the jury in prohibiting introduction of evidence of the defense of medical necessity. While we express no opinion as to the sufficiency of the evidence to justify an acquittal based thereon, our examination of the record convinces us that defendant presented some evidence on each of the following requisite elements.
I. There must be present, imminent and impending compulsion of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. Threat of future injury is not sufficient. People v Hocquard, supra, 337.
Defendant testified that he had had problems with his feet and eyes. With particular reference to the latter, he testified that on the day he left the prison farm he had blacked out and had almost been run over by a hi-lo. According to defendant he had "a great fear of losing [his] eyesight”.
II. There is no time to complain to the authorities or there is a history of futile complaints making any result from such complaints illusory. Id., 337.
Defendant testified that he had complained several times about his eyes and the troublesome bunions on his feet. He had also complained of migraine headaches. According to defendant, an examination at the infirmary had revealed his need for glasses. He did not receive the glasses until after the alleged escape. The two days preceding his leaving the prison farm, he had gone to the infirmary about his feet but had not been able to see a doctor. On the day he left, he complained to the foreman of migraine headaches and his feet.
III. There is no time or opportunity to resort to the courts. Id., 337.
Defendant testified that he had not attempted to go to court for a writ of mandamus or other legal action to force the prison to give him medical treatment. He further testified, however, that he had a tenth grade education, he had never before been in legal trouble, there was no legal counselor at the prison farm, and he did not know what a writ of mandamus was. According to defendant, he was not aware of any legal action which may have been available to him.
IV. There is no evidence of force or violence used towards prison personnel or other innocent persons in the escape. Id., 337-338.
That this element was established is beyond dispute.
V. The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat. Id., 338.
Defendant left the prison farm around 10 p.m. and was picked up by the police, on the road near another prison farm, at 10 a.m. the next day. According to defendant, his intention had been to seek medical help inside the main prison where he would have priority access to the infirmary. The sole prison hospital was also there.
We find that defendant presented some evidence in support of each of the elements of the defense of necessity. Except in "all but the clearest cases”, People v Harmon, 53 Mich App 482, 486; 220 NW2d 212 (1974), aff'd 394 Mich 625; 232 NW2d 187 (1975), the defense of necessity, like the analogous defense of duress, is a question for the jury. See People v Luther, 394 Mich 619, 622-623; 232 NW2d 184 (1975). Because defendant presented some competent evidence in support of his anticipated defense, the court erred in ruling that the defense could not be submitted to a jury. We reverse, therefore, and remand for a new trial.
Defendant also challenges his habitual offender conviction in several respects. His argument that it is impermissible to charge a prison escapee as an habitual offender has been rejected by the Supreme Court, People v Shotwell, 352 Mich 42; 88 NW2d 313 (1958), cert den 356 US 976; 78 S Ct 1141; 2 L Ed 2d 1149 (1958). Defendant’s constitutional challenges have also been rejected. People v Shastal, 26 Mich App 347; 182 NW2d 638 (1970), People v Potts, 55 Mich App 622, 634-638; 223 NW2d 96 (1974), lv den 396 Mich 826 (1976).
Defendant’s final claim is that delay in filing the supplemental information precludes conviction on that charge. The original information charging defendant with prison escape was filed on June 23, 1978. The supplemental information charging him as an habitual offender was not filed until October 4, 1978. Defendant was tried and convicted on the escape charge on October 12, 1978. It is not disputed that the supplemental information was filed as a direct result of defendant’s refusal to plead guilty to the escape charge.
In People v Fountain, 407 Mich 96; 282 NW2d 168 (1979), reh den 407 Mich 1152 (1979), the Supreme Court ruled that a prosecutor who has knowledge of a defendant’s prior felonies must file habitual offender charges "promptly” if at all. Fountain, supra, 98. The Supreme Court cited two purposes for the rule: the first was to provide fair notice to the accused; and the second was to avoid even the appearance of prosecutorial impropriety. Fountain, supra, 99.
With respect to the fair notice aspect of the Fountain decision, Fountain probably merely restates prior law. In People v Stratton, 13 Mich App 350; 164 NW2d 555 (1968), the proper procedure for the timing of the filing of the supplemental information was clearly described.
"Thus, as we now read sections 10, 11, 12 and 13, they contemplate 2 separate situations and procedures to be followed when the prosecutor desires to make possible the meting out of an increased penalty pursuant to the habitual criminal sections of the code of criminal procedure. The procedure set forth in section 13 is to be followed whenever it appears to the prosecutor ’’after conviction’ of the current charge that the felon has a prior felony record. However, where it appears to the prosecutor before conviction of the current charge that the accused person is a prior felon, the accused person is to be informed against as a prior offender prior to conviction on the current charge; the procedure set forth in section 13 need not be followed.” Stratton, supra, 356. (Footnote omitted.)
This procedure was approved by the Supreme Court in People v Hatt, 384 Mich 302; 181 NW2d 912 (1970). In People v Marshall, 41 Mich App 66; 199 NW2d 521 (1972), however, this Court ruled that the Stratton/Hatt procedure was not mandatory at least in the sense that failure to follow it would not preclude a prosecutor from proceeding on a supplemental information when there was some legitimate reason for not following the procedure and there was no showing that any substantial prejudice resulted to the defendant from the delay. The prosecutor would be precluded from proceeding on the supplemental information if delay for which there was no good reason substantially prejudiced the defendant.
"Clearly, the prosecutor has discretion to file a supplemental information under the habitual criminal act after conviction, and is not limited to filing such supplemental information prior to conviction of a current charge, where he has knowledge of the previous conviction.” Marshall, supra, 72-73.
However,
"* * * where no good reason exists for the delay in filing a supplemental information charging the defendant as a subsequent offender, and the delay on the part of the prosecutor substantially prejudices defendant’s rights, the filing of that supplemental information clearly denies defendant his right to due process of law.” Marshall, supra, 74.
In People v Hendrick, 398 Mich 410; 247 NW2d 840 (1976), the Supreme Court cited Marshall without disapproval and ruled that the prosecutor’s need to verify information contained in a rap sheet as to defendant’s prior felonies was a legitimate reason for not following the Stratton/Hatt procedure. In his dissent in Hendrick, Justice Levin disagreed that verifying a rap sheet was a legitimate reason for delaying the filing of a supplemental information. He went on to describe forcefully the substantial prejudice which always results to a defendant who is required to go to trial on a criminal charge, or enter a plea of guilty, without notice that conviction on that charge will result in the filing of a supplemental information charging him as an habitual offender and increasing the severity of the possible consequences of conviction on the original charge.
"While the habitual offender provisions of the Code of Criminal Procedure do not create a separate offense, providing rather for enhanced punishment for the current offense, fairness requires notice to the offender that he may face enhanced punishment where the prosecutor is aware, in advance of the trial on the current offense, of the offender’s prior record.
"The severity of the potential punishment that may be imposed is often reflected in the processing and disposition of charges against offenders. Minor offenders often are not cited; if cited they may be permitted to dispose of the matter informally, paying a predetermined fine. Accused persons aware that they will be placed on probation often plead guilty without appointment of counsel or offering a defense. Counsel need not be appointed for indigent offenders who are charged with minor offenses not subject to incarceration.
"Increased resources are generally devoted to the prosecution and defense of persons charged with serious offenses carrying long sentences. The law recognizes in many ways that the amount of process required by ordinary notions of fairness depends in part on the potential impact on the accused of the conviction.
"The nature of the accused’s response, the care with which he prepares to defend himself, will often depend on the severity of the potential punishment. It is overwhelmingly important to an accused whether upon conviction of a fourth felony, say of carrying a concealed weapon, the maximum sentence is five years or life.
"In this connection, it is noteworthy that persons sentenced as habitual offenders are not eligible for parole before the expiration of the minimum term without the sentencing judge’s approval.” Hendrick, supra, 423-424 (Levin, J. dissenting). (Footnotes omitted.)
If requiring a defendant to go to trial on a principal offense without notice that he will be charged as an habitual offender in the event of conviction on that offense is always substantially prejudicial to that defendant, as Justice Levin suggests in his Hendrick dissent, then Stratton, Hatt, Marshall and Hendrick are all reconcilable with Fountain and reveal the pre-Fountain rule of law relative to the timing of the filing of a supplemental information charging the defendant as an habitual offender to be as follows:
(1) When the prosecutor had knowledge of a defendant’s prior convictions, a supplemental information charging the defendant as an habitual offender was to be filed prior to the conviction of the defendant on the current charge. When the prosecutor learned of the defendant’s prior convictions only after the conviction of the defendant on the current charge, the information charging the defendant as an habitual offender could be filed after conviction on the current charge (Stratton/ Hatt);
(2) Failure to follow the Stratton/Hatt procedure would not preclude a prosecutor from proceeding on a supplemental information charging a defendant as an habitual offender unless
(a) no good reason existed for the delay in filing the supplemental information, and
(b) the delay substantially prejudiced the defendant’s rights (Marshall);
(3) The need to verify information contained in a rap sheet was a "good reason” for delaying the filing of a supplemental information until after a defendant’s conviction on the current offense (Hendrick — majority opinion);
(4) Requiring a defendant to go to trial on a criminal charge, or to enter a plea of guilty, without notice that upon conviction on that charge a supplemental information would be filed increasing the severity of the possible consequences of conviction was always substantially prejudicial to that defendant (Hendrick — Levin, J., dissent).
The decision of the Supreme Court in People v Fountain, supra, is consistent with the pre-Fountain rule which evolved from Stratton, Hatt, Marshall and Hendrick. Both Fountain and Jones were convicted of the current offenses with which they were charged prior to the filing of the informations charging them as habitual offenders. Since both were required to go to trial without proper notice of the severity of the possible consequences of conviction, both were substantially prejudiced, and prosecution of both habitual offender informations would have been precluded under the preFountain rule.
In the case before us here, however, the supplemental information was filed a week prior to the trial of the defendant on the prison escape charge. It provided fair notice to the defendant of the severity of the possible consequences of conviction on that charge. Therefore, with respect to the accomplishment of the first purpose for the Fountain rule, to provide fair notice to the accused, we conclude that the supplemental information was filed "promptly”.
It is with respect to the accomplishment of the second purpose of the Fountain rule, to avoid even the appearance of prosecutorial impropriety, that the Fountain decision changes the prior law relating to the timing of the filing of the supplemental information charging a defendant as an habitual offender.
Prior to Fountain the use of a potential habitual offender charge as a plea bargaining tool was not objectionable. Bordenkircher v Hayes, 434 US 357; 98 S Ct 663; 54 L Ed 2d 604 (1978), People v Roderick Johnson, 86 Mich App 77, 78; 272 NW2d 200 (1978), People v Sanders, 91 Mich App 737, 741; 283 NW2d 841 (1979), People v Jones, 83 Mich App 559, 569; 269 NW2d 224 (1978). Therefore, delay in filing the supplemental information until after plea negotiations terminated unsuccessfully, as happened in this case, would not have precluded a prosecutor from proceeding on an habitual offender charge as long as the defendant had fair notice of the prosecutor’s intent to supplement prior to going to trial or entering a plea or was not otherwise prejudiced by the delay.
After Fountain, however, an habitual offender information will not be considered "promptly” filed unless it is filed at least prior to the initiation of any plea negotiations. Use of the threat of supplementation in plea negotiations will always, it seems to us, carry with it the appearance at least of an attempt by the prosecutor to coerce a guilty plea which may not otherwise have been offered. Fountain changes the previous law, therefore, in that in order to avoid even the appearance of prosecutorial impropriety it makes the Stratton/Hatt procedure mandatory in the sense that failure to follow it will preclude the prosecution from proceeding on an habitual offender charge even absent a showing of prejudice to the defendant resulting from delay in filing the supplemental information.
We have ruled, however, that this aspect of the Fountain decision should be applied prospectively only. People v Taylor, 99 Mich App 673; 299 NW2d 9 (1980). Since the defendant in this case was convicted prior to the date on which Fountain was decided, the prosecutor will not be precluded from again proceeding on the supplemental information in the event that the defendant is convicted of prison escape on retrial.
Defendant’s convictions are reversed. The case is remanded for a new trial at which the defendant shall be permitted to present the defense of necessity. | [
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Per Curiam.
Defendants bring this appeal as of right from their March 23, 1978, jury convictions of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm at the time of commission or attempted commission of a felony, MCL 750.227b; MSA 28.424(2). Both defendants were sentenced to consecutive prison terms of two years on the felony-firearm charge and two to ten years on the armed robbery charge.
Defendants raise one issue which merits discussion. Defendants assert that the trial court erred in refusing to suppress evidence obtained pursuant to a search warrant issued on the basis of unreliable tracking-dog information.
In determining whether or not there is probable cause to issue a search warrant, the magistrate can consider only the information contained in the affidavit made before him. MCL 780.653; MSA 28.1259(3); Aguilar v Texas, 378 US 108, 109, n 1; 84 S Ct 1509; 12 L Ed 2d 723 (1964). In the present case, the affidavit was made by Deputy Sheriff Marvin Rakowski, who was the first officer on the scene. He reported that upon his arrival on the scene the complainant told him that his restaurant had just been robbed by two men and that the robbers had fled across the street toward the Parkside Apartment complex. One of the robbers fell down within 100 feet of the restaurant after the restaurant owner and one of his employees fired at the robbers. The affidavit further indicated that Officer Letts of the "K-9 Corps” and his tracking dog, Prince, arrived within 30 minutes of the robbery and were directed to the area where the robber had fallen. The robbers’ tracks were in an area of ground that had no other fresh human tracks. Officer Letts and Prince in about 13 minutes tracked the footprints to the Parkside apartment at 185 Parkside Court. Prince’s actions were observed by the officer making the affidavit. The police officers, by this time five in number, including the officer executing the affidavit, knocked on the door, waited, saw two persons standing by an open window inside the apartment, and, receiving no answer, forced open the door and arrested defendants. On the basis of the above information, the magistrate issued a warrant to search the apartment, and evidence linking defendants to the armed robbery was found therein.
In Michigan, tracking-dog evidence is admitted at trial with caution and cannot, standing alone, support a conviction. People v McPherson, 85 Mich App 341; 271 NW2d 228 (1978). See also People v Perryman, 89 Mich App 516; 280 NW2d 579 (1979), People v Norwood, 70 Mich App 53, 55; 245 NW2d 170 (1976), Anno: Evidence of trailing by dogs in criminal cases, 18 ALR3d 1221. Strict foundational requirements must be established before such evidence is admitted at trial. Norwood, supra. However, "a finding of probable cause sufficient to justify issuance of a search warrant may rest upon evidence which is not sufficient to justify conviction and which may not be legally competent in a criminal trial because it is only the probability, and not a prima facie showing, of criminal activity that is the standard of probable cause”. People v Thomas, 86 Mich App 752, 759; 273 NW2d 548 (1978), lv den 406 Mich 971 (1979). See also Draper v United States, 358 US 307, 311-312; 79 S Ct 329; 3 L Ed 2d 327 (1959). In Draper, supra, 313, the United States Supreme court explained the concept of probable cause as follows:
"* * * Probable cause exists where 'the facts and circumstances within [the arresting officers’] knowledge and of which they had reasonably trustworthy informa tion [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed. Carroll v United States, 267 US 132, 162.” (Footnotes omitted.)
Furthermore, the Supreme Court, in Spinelli v United States, 393 US 410, 419; 89 S Ct 584; 21 L Ed 2d 637 (1969), in discussing the use of affidavits to establish probable cause, stated:
"* * * In holding as we have done, we do not retreat from the established propositions * * * that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v Ventresca, 380 US 102, 108 (1965); and that their determination of probable cause should be paid great deference by reviewing courts, Jones v United States, 362 US 257, 270-271 (1960).”
In Aguilar, supra, 109, the affidavit in support of the application for a search warrant indicated only that the affiant had received "reliable information from a credible person” regarding the crime. The Supreme Court set up a two-pronged test. First, although an affidavit may be based on hearsay information, rather than on the direct personal observations of the affiant, the magistrate must be informed of some of the underlying circumstances from which the informant made his conclusions. Second, the affidavit must also recite some of the underlying circumstances from which the affiant concluded that the informant was credible or his information reliable.
While a tracking dog is not, strictly speaking, an "informant”, nonetheless the Aguilar test appears well-suited to assist a magistrate to determine the factual sufficiency of the affidavit supporting the request for such a search warrant.
There is little question in the present case regarding the sufficiency of the underlying circumstances which led Prince to the Parkside Apartments.
Regarding the second prong of the Aguilar test, the only information in the affidavit regarding Prince’s credibility is that indicating that Prince was the tracking dog assigned to Officer Letts of the police department’s K-9 Corps. The trial court concluded that this information indicated that Prince had the "qualifications to be a tracking dog”. This Court agrees and finds that the information establishing Prince’s credibility in the present case, though sketchy, was more substantial than the affidavit information regarding the informant’s credibility in Aguilar.
Furthermore, in Spinelli, supra, 415-416, the Supreme Court stated that corroboration of an informant’s tip can serve to establish probable cause even if the two parts of the Aguilar test are not satisfied completely. The other information contained in the affidavit in the present case corroborates the information supplied by Prince that the robbers were in an apartment at 185 Parkside Court. That information and the sequence of events recited is sufficient corroboration to lead to a conclusion that the affidavit in the present case did establish probable cause for the magistrate’s issuance of the warrant. Defendants’ motion to suppress evidence was properly denied.
Affirmed.
The affidavit also indicated that after entering the apartment, and while arresting defendants, the affiant observed that defendant matched the description given by the complainant. Defendants argue that their arrest was without probable cause and thus that the magistrate improperly considered the matching description information in deciding to issue the search warrant. However, if the information contained in the affidavit regarding events prior to the entry and arrest is sufficient to establish probable cause for the search warrant, then it also is sufficient to etablish probable cause for the arrest. In addition, the trial court held that without regard to any incidents of the arrest the affidavit established probable cause. See Franks v Delaware, 438 US 154; 98 S a 2674; 57 L Ed 2d 667 (1978), United States v Grunsfeld, 558 F2d 1231 (CA 6, 1977).
The Spinelli Court indicated that this first prong of the Aguilar test, the manner in which the information was gathered, is perhaps more important than the second prong. | [
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Per Curiam.
Defendant was convicted by a jury of criminal sexual conduct in the third degree, contrary to MCL 750.520d; MSA 28.788(4). He was sentenced to a prison term of from 5 to 15 years and now appeals as of right.
On December 4, 1974, nine days after the alleged criminal act took place, defendant made a voluntary exculpatory statement to the police explaining his activities on the night in question. The statement was tape recorded. Defendant took the stand during trial and, on cross-examination, the prosecutor attempted to impeach his trial testimony by questioning him about inconsistent remarks made in the earlier statement. The prosecutor informed defendant of the date and location of the prior statement and the police officer involved. Defendant admitted having made a statement but denied recollection each time he was questioned about specific remarks. In rebuttal, the prosecution called police officer Fred LaBarge, who had taken the December 4, 1974, statement. Over objection, the officer testified regarding the circum stances of defendant’s statement and the tape recording was played to the jury.
Defendant first argues that the prosecution committed misconduct by concealing the fact that defendant’s statement had been tape recorded. The original information filed in the case indicated that defendant had made a statement to Officer LaBarge on December 4, 1974, which might be used as evidence. Discovery efforts by defense counsel could have revealed the existence of the tape recording. On the first day of trial, Officer LaBarge testified that defendant had "initialed a taped statement”. Defense counsel did not request to listen to the tape before defendant took the stand on the second day of trial. Under these circumstances, we find there was no prejudicial misconduct by the prosecution.
Defendant next claims the prosecution laid an inadequate foundation for impeachment of his testimony with the prior inconsistent statements during cross-examination and for the playing of the tape in rebuttal. According to defendant, the tape recording was equivalent to a writing under MRE 613, which required disclosure of the contents of the tape recording to defendant to refresh his recollection prior to impeachment. The rule states:
"(a) * * * In examining a witness concerning a prior statement made by the witness, if written the statement must be shown to the witness and if oral, its substance and the time, place, and person to whom the statement was made must be disclosed to the witness, and on request must be shown or disclosed to opposing counsel.
"(b) * * * Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportu nity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).”
In construing MRE 613, words are to be given their ordinary meanings. See, Samuel Reiter Painting Co v Bill Miedler Homes, Inc, 87 Mich App 75; 273 NW2d 592 (1978), lv den 406 Mich 911 (1979). We believe that the plain meaning of "written” in the rule belies any claim that tape recordings should be considered as written statements. The prosecutor laid the proper foundation for impeachment by asking defendant whether he had made the prior inconsistent statements, giving the substance of the statements, indicating the time and place of the statement and naming the person to whom they were made. People v Williams, 93 Mich App 236; 287 NW2d 184 (1978).
Defendant’s claim that it was improper for the trial court to allow the tape to be played in rebuttal, where he had denied recollection of the prior inconsistent statements, lacks merit. Where a witness denies recollection of a prior inconsistent statement, proof of that statement by extrinsic evidence can be made. People v Martin, 75 Mich App 6; 254 NW2d 628 (1977), lv den 402 Mich 881 (1978), People v Lynn, 91 Mich App 117; 283 NW2d 664 (1979). Defendant relies on People v Miller, 49 Mich App 53; 211 NW2d 242 (1973), in which this Court held that introduction of a witness’s prior statements was improper impeachment where the statements concerned matters not testified to on direct examination. In the present case, defendant’s prior statement concerned his activities on the night of the crime as did his testimony on direct examination. The trial judge specifically instructed the jury that only defen dant’s testimony from the stand was to be considered as evidence and the sole purpose for admitting the recorded statement was rebuttal of such trial testimony.
The first portion of the tape recording contained the comments of police officer LaBarge summarizing the allegations made against defendant by the victim. Defense counsel objected to the officer’s comments as hearsay. The trial judge overruled the objection and instructed the jury to consider the officer’s statements not as evidence against defendant but only as a means of understanding the answers given by defendant in response to the officer’s questions. MRE 801 defines hearsay as a statement, other than one made by the declarant at trial, offered in evidence to prove the truth of the matter asserted. Officer LaBarge’s comments on the tape were offered to put the defendant’s statements in the appropriate context, not to prove the truth of the matter asserted therein. They were not hearsay.
Finally, defendant contends that the prosecutor committed misconduct by encouraging the jurors to consider the tape recording as substantive evidence. No objection was made to this allegedly improper argument, which we believe was not so improper that any prejudicial effect could not have been eliminated by a curative instruction. Appellate review of this issue is foreclosed under People v Walker, 93 Mich App 189; 285 NW2d 812 (1979).
Affirmed. | [
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] |
M. J. Kelly, J.
Following a bench trial, defendant was convicted of breaking and entering an occupied dwelling with intent to commit a larceny contrary to MCL 750.110; MSA 28.305. On January 11, 1979, defendant was sentenced to a term of 9 to 15 years imprisonment. On the date set for sentencing, the prosecution filed a supplemental information charging that defendant had been convicted of five prior felonies, MCL 769.12; MSA 28.1084. On January 18, 1979, pursuant to a plea and sentence bargain, defendant pled guilty to the habitual offender charge. The trial court vacated its original sentence and ordered defendant imprisoned for 9 to 15 years on the recidivist conviction. Defendant appeals as of right.
Addressing the issues raised by defendant in reverse order, we first consider whether there was sufficient evidence to sustain defendant’s conviction of the charged offense. It is defendant’s position that, absent any proof of a breaking, the greatest offense properly chargeable was possession of stolen property. Our review of the record convinces us that the prosecution presented sufficient evidence to support defendant’s conviction beyond a reasonable doubt.
Chris Thompson, a resident of the victimized fraternity house, testified that when he and a friend arrived at the house at 12:45 a.m., he noticed nothing unusual. Upon departure, approximately 45 minutes later (1:30 a.m.), he observed that both the front door and the side entrance french doors were open. Mr. Thompson closed the front door, left the house and returned at 1:45 a.m. at which time he closed the french doors.
Jane Schaeffer and Melanie Bennett testified that four sorority sisters, themselves included, gained entry to the house for the purpose of steal ing the fraternity composite picture. They found the front door locked and the french doors closed, but were able to gain entrance by pushing them open. Betsy Greenway testified that after the picture was removed she closed the french doors to the point that they were "barely touching” and that she could not recall any wind of sufficient force to blow them open. Their arrival and departure occurred some time between 1:10 a.m. and 1:25 a.m.
A police surveillance team observed defendant in the parking lot behind the Lambda Chi House at approximately 1:25 a.m. and he was thereafter seen placing certain objects, later identified as a television and stereo, in his car. When police stopped the vehicle shortly thereafter, the stolen items were discovered in the back seat.
Thus, the evidence supports the conclusion that when defendant approached the house the front door was locked and the french doors closed to such a degree that some force upon the doors, sufficient to support the breaking element of the offense, was necessary to gain entry. See People v Hill, 36 Mich App 679; 193 NW2d 909 (1971), and People v White, 153 Mich 617; 117 NW 161 (1908).
The substantive question remaining then, is whether the prosecution was required to negate every reasonable hypothesis consistent with defendant’s innocence since the evidence presented as to invading the house was entirely circumstantial. There is currently a split of authority on this issue. Compare People v Edgar, 75 Mich App 467, 469-474; 255 NW2d 648 (1977), and People v Davenport, 39 Mich App 252, 255-258; 197 NW2d 521 (1972). The most recent analysis, found in People v Williams, 94 Mich App 406; 288 NW2d 638 (1979), synthesizes the superficially contradictory views and the result that emerges represents a logical, reasonable standard:
"If inferences drawn from circumstantial evidence are so compelling that the trier of fact has no reasonable doubt of defendant’s guilt, that should be sufficient basis for a guilty verdict. If circumstantial evidence does not give rise to inferences of such a compelling nature as to overcome the reasonable doubt standard, then a guilty verdict could not be justified, not because the evidence was circumstantial or because of basing inferences on inferences, but rather, because of the prosecution’s failure to meet its burden of proof. If so, it would seem to follow that if the evidence persuaded the trier of fact of a defendant’s guilt beyond a reasonable doubt the prosecution’s failure to specifically disprove an innocent hypothesis advanced by defendant would not result in the setting aside of a guilty verdict. It should be recognized that there can be hypotheses of innocence advanced by defendants that would be impossible to disprove by either direct or circumstantial evidence. To require the prosecution to do the impossible would be neither sound logic nor good law. It would appear that in order for a hypothesis of innocence to negate an otherwise supported finding of guilt the hypothesis must be of such a compelling nature that it creates a reasonable doubt on the part of the fact trier.” 94 Mich App at 416-417.
The evidence presented in the instant case gives rise to the compelling inference that at the time of defendant’s arrival the house was not freely accessible and that defendant was minimally required to push open the french doors in order to enter. Defendant’s argument that the doors may well have been open is not supported by evidence of such a compelling nature as to mandate a reasonable doubt in the mind of the trier of fact. The circumstantial inference is to the contrary.
The remaining issue raised by defendant is whether the habitual offender sentence must be vacated for the prosecution’s failure to comply with the recently enunciated rule of People v Fountain and People v Jones, 407 Mich 96; 282 NW2d 168 (1979), that the supplemental information be filed with the information charging the principal offense. The supplemental information against the defendant herein was filed after his conviction on the principal offense although the prosecutor was cognizant of. his prior felonies in advance of trial. The prosecutor did, however, inform the court and defense counsel of his intention at pretrial conference.
Although authority existing prior to Fountain cautioned against the practice of supplementation following conviction, such conduct alone was not previously sufficient ground for vacation of the habitual offender sentence. People v Mohead, 98 Mich App 612; 295 NW2d 910 (1980). Since proceedings in the present case occurred several months prior to the date the Fountain opinion was issued, the question is one of retroactive application. For the sound reasons expressed in Mohead, supra, we decline to give Fountain even limited retroactive effect. Accord, People v Holmes, 98 Mich App 369; 295 NW2d 887 (1980).
For other cases giving different treatment to the question of Fountain retroactivity see People v Reese, 97 Mich App 785; 296 NW2d 172 (1980), and People v Stein, 99 Mich App 781; 298 NW2d 638 (1980), in which this Court found the rule of Fountain applicable to cases pending on appeal on the date of the Supreme Court’s decision. See also People v Taylor, 99 Mich App 613; 299 NW2d 9 (1980), where it was determined that. Fountain should receive retroactive application only "where a defendant has not received notice that a supplemental information would be filed” and the failure to so notify works a prejudice on the defendant.
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] |
M. J. Kelly, J.
On April 14, 1976, plaintiff, Margaret Cooper, filed a claim against her former employer, the University of Michigan, for unemployment benefits. On May 12, 1976, the Michigan Employment Security Commission (MESC) made a determination that the plaintiff was not entitled to unemployment benefits. On June 23, 1976, MESC made a redetermination pursuant to plaintiff’s request and affirmed the denial of unemployment benefits to the plaintiff. Plaintiff filed an appeal from this redetermination. On January 17, 1977, a hearing was held before MESC Referee Raymond K. Sewell, Jr. Referee Sewell affirmed the MESC redetermination. Plaintiff again appealed. On June 7, 1978, the Michigan Employment Security Board of Review affirmed the referee’s decision. Plaintiff again appealed. On May 16, 1979, Washtenaw County Circuit Court Judge Ross W. Campbell issued an opinion affirming the Michigan Employment Security Board of Review’s decision. Plaintiff appeals to this Court as of right.
The facts in the present case are undisputed. Plaintiff began work for the defendant on February 24, 1975. In August of 1975, the plaintiff began work in the accounting department as a clerical worker. Plaintiff’s duties required taking care of the incoming cash receipts, balancing and filing. In January of 1976, plaintiff told her immediate supervisor that she did not have enough work to do and that she had too much spare time in the afternoon. In March of 1976, plaintiff discussed her dissatisfaction with a woman in the personnel department, who advised her that she could attempt to transfer to another job. Plaintiff attempted to effect such transfer but was unsuccessful due to lack of seniority.
Plaintiff then told Elex Makarewich, the supervisor over her immediate supervisor, of her discontent with the lack of work. Plaintiff also tendered a resignation at this time. Makarewich told plaintiff that she could occasionally do some work for the accountants in the department clearing erroneous accounts. Plaintiff then withdrew her resignation in order to consider the supervisor’s proposal. After talking with an accountant, plaintiff learned that clearing the erroneous accounts would take only a few hours a month and that if she did this work, the accountants would not have enough to do. Plaintiff subsequently tendered her resignation on April 9, 1976.
On April 14, 1976, plaintiff filed her claim for unemployment benefits. This claim was denied throughout the appeals process based upon a finding that the plaintiff voluntarily left her work without good cause attributable to the employer.
MCL 421.29(1); MSA 17.531(1) provides in part:
"An individual shall be disqualified for benefits in all cases in which he:
"(a) Has left work voluntarily without good cause attributable to the employer or employing unit.”
Three issues related to the above statute are raised on appeal: (1) whether the burden of proof relevant to the above standard falls upon the claimant or employer, (2) whether an employee’s dissatisfaction with the amount of work assigned constitutes good cause, and (3) whether this determination as to the existence of good cause is a question of law or fact.
It is defendants’ position that the burden of proving eligibility for benefits rests with the claimant. Dwyer v Unemployment Compensation Comm, 321 Mich 178, 187; 32 NW2d 434 (1948), Clapp v Unemployment Compensation Comm, 325 Mich 212, 221; 38 NW2d 325 (1949). In the absence of Michigan precedent pertinent to the more specific question raised here, defendants cite cases from foreign jurisdictions which hold that when an employee voluntarily leaves employment the burden is on him to show good cause for doing so. E.g., Szojka v Unemployment Compensation Board of Review, 187 Pa Super 643; 146 A2d 81 (1958). Plaintiff relies on those cases which hold that the employer bears the burden of proof in a disqualification situation. Smith v Employment Security Comm, 89 Mich App 212, 216; 280 NW2d 489 (1979), lv gtd 406 Mich 1006 (1979), Lasher v Mueller Brass Co, 62 Mich App 171, 175; 233 NW2d 513 (1975), Fresta v Miller, 7 Mich App 58, 63-64; 151 NW2d 181 (1967).
While we are clearly presented with a disqualification question, we disagree with plaintiffs position that the employer bears the burden of proof in all cases involving an employee’s disqualification for unemployment benefits. Those cases on which plaintiff relies do not turn on the "good cause” conduct of the claimant; rather, they impose the burden of proof on the employer in the following instances. One: When the employee is to be disqualified for benefits due to the employer’s discharge for misconduct, Fresta, supra. See MCL 421.29(l)(b); MSA 17.531(l)(b). Two: When the employee is to be disqualified for failure to accept "suitable” work offered by the employer, Lasher, supra. See MCL 421.29(l)(e); MSA 17.531(l)(e). Three: When an employee is to be disqualified because his unemployment is due to a labor dispute in progress, Smith, supra. See MCL 421.29(8); MSA 17.531(8).
In each situation the conduct, knowledge, reasoning, and control of the employer is critical in order to determine whether disqualification is justified. However, potential disqualification, for benefits under MCL 421.29(l)(a); MSA 17.531(l)(a), as here, requires inquiry into whether plaintiff’s behavior in terminating employment was voluntary and plaintiff’s reasons for doing so, the answers to these questions being within the exclusive knowledge of the claimant. Plaintiff herein left work because she was dissatisfied with the amount of work assigned to her. In light of the undisputed facts attending the plaintiff’s cause, whether this motivation constitutes "good cause attributable to the employer or employing unit” is a question of law. Thomas v Employment Security Comm, 356 Mich 665, 668; 97 NW2d 784 (1959).
Cases decided in both Pennsylvania and New York, which have similar statutory schemes, provide some guidance as to whether voluntary termination of employment due to an employee’s determination of insufficient quantity of work should be considered within the purview of "good cause”.
In Sabloff v Unemployment Compensation Board of Review, 194 Pa Super 63; 166 A2d 95 (1960), a planning official voluntarily left his employment because he was not doing the type of work for which he had been employed and because he believed his general inactivity to be a waste of government funds. The Pennsylvania Court ruled that the plaintiff was disqualified from receiving unemployment benefits.
In Welker v Unemployment Compensation Board of Review, 180 Pa Super 534; 119 A2d 658 (1956), the claimant was a laboratory technician who voluntarily left her employment because there was not enough specialized laboratory analysis work to occupy her full time. The claimant decided to resign rather than do general laboratory work. The Welker Court also ruled that the plaintiff was not entitled to unemployment benefits.
In Albright v Unemployment Compensation Board of Review, 176 Pa Super 290; 106 A2d 879 (1954), a bookkeeper quit his job because he did not have enough to do. The court held that the plaintiff was not entitled to unemployment benefits.
The language of the Pennsylvania and Michigan statutes differs in that the former legislation pro vides that a person is ineligible for compensation if "his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature”. 43 Pa Stat Ann 802(b)(1). However, as Albright, supra, indicates, the above criteria is the equivalent of "good cause”.
Plaintiffs attempt to distinguish the above cases and Eisenberg v Catherwood, 29 App Div 1019; 289 NYS2d 498 (1968), on the ground that plaintiffs therein did not specifically request additional work is not persuasive since the argument fails to substantively bolster her stance that lack of work equals good cause. Furthermore, plaintiffs reliance on Kovach v Employment Division, 35 Or App 609; 582 P2d 460 (1978), Industrial Comm of Colorado v McIntyre, 162 Colo 229; 425 P2d 279 (1967), and Clay v Crooks Industries, 96 Idaho 78; 529 P2d 774 (1974), is misplaced because, as plaintiff concedes, they do not deal with an employee who has voluntarily left work for the reason offered here.
Plaintiff also directs our attention to a Wayne County Circuit Court decision, John Johnson Co v Unemployment Compensation Comm, (Docket No. 231, 402, November 19, 1943), which not only lacks precedential value but is also factually distinguishable from the present case since the plaintiff in Johnson left a part-time job to seek full-time employment.
Finally, we summarily reject plaintiff’s argument that she was subjected to a disguised lay-off when, despite the unavailability of sufficient tasks to keep her totally occupied, defendant continued to employ her at full-time hours and pay.
We conclude that plaintiff voluntarily left work without good cause attributable to her employer and is therefore disqualified for benefits.
Affirmed.
Cynar, P.J., concurred.
The Court did not address the question of the claimant’s good cause in rejecting employment since that determination is subsequent to the decision regarding the employer’s offer of work that is "suitable”.
The voluntariness of plaintiffs conduct is not at issue here. | [
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M. F. Cavanagh, J.
Plaintiffs brought this action against defendants as a result of injuries sustained by Gregory- Vargo. On the grounds of governmental immunity, MCL 691.1407; MSA 3.996(107), the trial court granted accelerated judgment to defendants Svitchan, the athletic director, Mayoros, the high school principal, Hagadone, the school district superintendent, and the Riverview Community School District. Leave to appeal was initially denied by this Court. Plaintiffs sought leave to appeal to the Supreme Court which, in lieu of leave to appeal, remanded to this Court to hear the case as on leave granted. Vargo v Svitchan, 406 Mich 943 (1979).
On June 25, 1973, Gregory Roy Vargo, a 15-year-old high school student, reported for the first of a scheduled series of weight lifting training sessions in preparation for high school football team tryouts in the Fall. This session was conducted at the high school in the gymnasium. Allegedly urged on by the coach, Dr. Donald Lessner, to perform to the utmost, Gregory Vargo pushed himself to and beyond his limits, and, while lifting a 250 to 300 pound weight, he fell and received injuries resulting in paraplegia. It is alleged Gregory Vargo’s two "spotters”, Mark Mayoros and Gary Merker, failed to react quickly enough to seize the barbell before the fall.
Plaintiffs’ complaint, twice amended, alleges that appellee Svitchan, the Athletic Director, appellee Ernest Mayoros, the Principal, and appellee Hagadone, the School Superintendent, negligently supervised Coach Lessner and allowed Lessner to abuse students and to threaten and pressure them into attempting athletic feats beyond their capabilities, resulting in Gregory Vargo’s injury. The complaint further alleges that the gymnasium facilities were inadequate and defective because lack of sufficient ventilation caused Gregory Vargo to perspire excessively, contributing to his injuries.
MCL 691.1407; MSA 3.996(107), reads:
"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 question as to whether the protection afforded a governmental unit by the above statute extends to its individual agents or employees is presently unsettled in Michigan. The state of the law in this regard has been accurately assessed by Judge Brennan in his opinion in Cook v Bennett, 94 Mich App 93, 98-100; 288 NW2d 609 (1979):
"We next address the propriety of the summary judgment in favor of the school principal, Vera Bennett. The summary judgment was based upon the lower court’s determination that the school principal was protected by governmental immunity.
"As to this particular issue the Michigan Supreme Court has not rendered any practical guidance to the bench and bar. In Lovitt v Concord School District, [58 Mich App 593, 598; 228 NW2d 479 (1975)], Judge Danhof, writing for a panel of this Court, held that the governmental immunity which protects a school district is extended to the school principal. Justices Kavanagh, Fitzgerald, and Levin would hold that a school district, and thus its employees, are not protected by governmental immunity. Galli v Kirkeby, 398 Mich 527, 531; 248 NW2d 149 (1976). Justices Williams and Ryan in Galli, supra, 531, would overrule Judge Danhof’s holding in Lovitt while Chief Justice Coleman would hold that the principal’s function of supervising the school personnel (the claimed breach in the present case) is protected by governmental immunity. Galli, supra, 542.
"The recent Supreme Court case of Bush v Oscoda Area Schools, 405 Mich 716; 275 NW2d 268 (1979), does not allay the confusion in the area. There the question of the applicability of governmental immunity to a school principal was summarily addressed. Bush, supra, 733. In that case it was alleged that the principal was apprised of the dangerous condition of the substitute lab room and failed to take appropriate action to protect the students. Justices Levin, Kavanagh and Fitzgerald found that the complaint did state a claim against the principal. Chief Justice Coleman and Justice Moody found that the principal was performing discretionary activities that are of essence to government and was thus protected by governmental immunity. Bush, supra, 734. Justice Williams in Bush, supra, 734, would hold the principal liable only for ’ultra vires acts’ in accordance with McCann v Michigan, 398 Mich 65, 73-74; 247 NW2d 521 (1976).
"It goes without saying that this area of the law is Unsettled. Although we perceive a trend in Michigan to severely limit governmental immunity, as yet the problem of its applicability must be contended with.”
The Court in Cook, supra, 100, then proceeded to evaluate the liability of the defendant principal in terms of the following test:
"The extent to which a school principal is protected by immunity is dependent upon whether the act complained of falls within the principal’s discretionary or ministerial powers. Justice Cooley, in Wall v Trumbull, 16 Mich 228, 234 (1867), draws the distinction as follows:
" 'A ministerial officer has a line of conduct marked out for him, and has nothing to do but to follow it; and he must be held liable for any failure to do so which results in the injury of another. A judicial officer, on the other hand, has certain powers confided to him to be exercised according to his judgment or discretion; and the law would be oppressive which should compel him in every case to decide correctly at his peril.’
"Discretionary acts are those of a legislative, executive or judicial nature. Sherbutte v Marine City, 374 Mich 48, 54; 130 NW2d 920 (1964). Ministerial acts are those where the public employee has little decision-making power during the course of performance, but rather his conduct is delineated.”
Employing these distinctions, the Cook Court concluded that:
"Even though the supervisory powers of the school principal are incident to her public function, she has a duty to reasonably exercise these powers in such a way as to minimize injury to students in her charge. Where the principal negligently performs this duty, government immunity does not operate to insulate her from all liability. Accordingly, the lower court’s ruling to the contrary is erroneous.” Cook, supra, 101.
In the case at bar, the plaintiffs, in their complaint, have set forth lengthy allegations concerning the purported negligence of Riverview Community High School Principal Ernest Mayoros. The plaintiffs have averred that Principal Mayoros was negligent by "inducing, suggesting, encouraging * * * intimidating and coercing plaintiff Gregory Roy Vargo * * * to attend the weight lifting session and to attempt to lift and lower heavy weights without having inquired as to his experience or capabilities to lift such weights without properly instructing him and other members of the class as to techniques of safety that would avoid injury and without providing proper mechanical and/or human safeguards * * The plaintiffs have further alleged that Principal Mayoros was negligent "by failing to stop the illegally [sic] conducting of an organized summer program for varsity football players contrary to Michigan High School Athletic Association rules”, and "by failing to promulgate adequate rules, regulations, procedures and safeguards, and by failing to properly instruct and train the coach, assistant coaches, and Athletic Director herein * * *”. The plaintiffs finally claim that Principal Mayoros was negligent because he failed to inspect the activities that were being conducted by Coach Lessner, because he permitted the use of an improperly-equipped room, and because he failed to take action upon receiving a complaint and notice that Coach Lessner was "too rough” on his prospective football players.
According to the analysis set forth in Cook, supra, it appears that the principal in the instant case should not be covered by the cloak of governmental immunity. As in Cook, Principal Mayoros had a duty to reasonably exercise supervisory powers so as to minimize injury to his students. The principal of the school maintains direct control over the use and condition of the facilities. Therefore, if the weight lifting room was, in fact, improperly equipped and designed for that use, the defendant principal would bear direct responsibility. Moreover, if the summer weight lifting program was, in fact, in violation of MHSAA rules and regulations, it would be the principal, Ernest Mayoros, who would be in charge of such a program. Finally, it must be noted that weight lifting is an activity which requires special training and supervision; overexertion and resultant injuries are foreseeable and frequent in the absence of proper supervision. If such a program was to be conducted in the high school, the principal had a duty to minimize injury to the participating students.
Although the liability (or lack thereof) of a school athletic director under the governmental immunity statute has not been previously addressed by this Court, it seems that the above reasoning and outcome should apply with equal vigor to that person who is in direct control of the athletic program under which the plaintiff is injured. In the instant case, athletic director George Svitchan was directly in charge of the football program and Coach Lessner. As athletic director, the summer weight lifting program was not only within his knowledge but was also his direct responsibility. George Svitchan was the person in a position and authority to oversee the practices and stop any unsafe activities. Due to the specialized nature of the position, Mr. Svitchan, more so than the principal, should have promulgated reasonable safety precautions and minimized injury to the students. The athletic director must be presumed to know the nature of the class and the physical requirements and limitations of its participants. One cannot say that all reasonable men would agree that no negligence could be inferred under the circumstances. That question should be left to the jury. Knapp v City of Dearborn, 60 Mich App 18; 230 NW2d 293 (1975).
We conclude that the plaintiffs’ allegations are of active, personal negligence on the part of the athletic director. The alleged liability is not based upon negligence committed as a public functionary. Since the plaintiff was injured in the course of an athletic activity, a trier of fact could find that defendant Svitchan abused a personal and direct duty to provide a safe weight lifting program. Defendant Svitchan is not entitled to the protection of the governmental immunity statute.
However, the same cannot be said for Superin tendent T. E. Hagadone. We are unable to discern in the complaint any allegations of "personal neglect” on the part of the superintendent. The essence of the plaintiffs’ allegations is that Mr. Hagadone was negligent in his supervisory responsibilities. The possible negligence of the coach (and other school employees) cannot be imputed to him merely because he was in a supervisory position. But see Bush, supra, 733.
Plaintiffs also appeal from the trial court’s decision that the defendant school district is immune from suit because it is not liable under the defective building exception to the governmental immunity statute, the pertinent part of which follows:
"Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building.” MCL 691.1406; MSA 3.996(106).
The interpretation of this statutory exception has undergone recent revision by the Michigan Supreme Court. Early cases involving the public building exception consistently held that an exemption from governmental immunity is not made out under MCL 691.1406; MSA 3.996(106) unless the injury was sustained from a structural part of the building or a fixture attached thereto. Zawadzki v Taylor, 70 Mich App 545; 246 NW2d 161 (1976), lv den 399 Mich 875 (1977), Green v Dep’t of Corrections, 30 Mich App 648; 186 NW2d 792 (1971), Jackson v Detroit Board of Education, 18 Mich App 73; 170 NW2d 489 (1969), Smith v Clintondale School Dist, 14 Mich App 153; 165 NW2d 332 (1968).
The scope of MCL 691.1406; MSA 3.996(106) was broadened in Pichette v Manistique Public Schools, 403 Mich 268; 269 NW2d 143 (1978), in which a child sustained serious injuries on a playground slide. The Michigan Supreme Court held that a slide permanently affixed to the school playground on the premises adjacent to the school building existed for the purpose of facilitating the use and enjoyment of that building and was, thus, within the statutory public building exception. The Court consequently held that the defendant school district may be liable for injuries caused by its negligence in failing to properly repair and maintain the slide. See also Schmit v Detroit, 88 Mich App 22; 276 NW2d 506 (1979).
The scope of the public building exception has recently been expanded even further in Bush, supra. That case involved a suit against the school district, the superintendent, the principal, and a teacher. There, a physical science class that had been conducted in a chemistry laboratory was rescheduled (due to increased enrollment) to meet in a nonlaboratory room, not equipped with a safety shower, ventilation or exhaust hoods, sinks, enclosed storage areas, stationary laboratory desks, and water and gas outlets as had been present in the other room. The classroom teacher had complained about the room being too crowded, about the tables moving too easily, and about the difficulty and confusion of managing too many students there.
After an experiment involving the lighting of portable alcohol burners, the students were to extinguish the burners and return them to the counter. When the plaintiff was returning her burner, she noticed a lighted burner on the counter and attempted to extinguish it. An explosion occurred and she caught fire and was injured.
While the accident occurred within a building, there was no allegation in the plaintiffs cause of action that her injury had been caused by any existing part of the building or permanently attached fixture. Rather, plaintiff averred that the defendant school district was liable under the public building provision because of the improper design of the classroom and the absence of safety devices. The trial judge granted defendants’ motion for summary judgment on the ground that the complaint failed to state a claim upon which relief could be granted. The Court of Appeals affirmed as to the school district and the superintendent and reversed as to the principal and teacher. 72 Mich App 670; 250 NW2d 759 (1976). The Michigan Supreme Court concluded that the compliant stated claims as to all defendants and remanded for trial, stating that:
"[T]he question whether a part of a building, in this case a classroom, is dangerous or defective is to be determined in light of the 'uses or activities’ for which it is 'specifically assigned’, in this case a physical science class.
"To be sure, the lack of certain safety devices did not render the classroom defective per se; it is ordinarily unnecessary to install laboratory safety equipment in classrooms. In determining whether a place is safe, one must consider the use or purpose it serves. A building may be safe for one use or purpose, but not for another. A school is not a school because it is called one, but because it is used and functions as one. If a hospital is converted into a prison, the building must be maintained as a safe prison, not as a safe hospital. The room in which Foxworth was injured had by use become a physical science room, and therefore had to meet the standards of a physical science room although it had once been a mathematics room.
"The trier of fact must determine whether the room was defective when used as a physical science classroom and, if so, whether the defect was a cause of Foxworth’s injuries. Conceding that the alleged 'course of classroom conduct * * * would be dangerous even in a properly equipped laboratory’, it is yet possible that if the room were properly equipped the accident would not have occurred or the injuries would have been less severe. The question of the significance of the defect in relation to the alleged injuries is a question of fact.” Bush, supra, pp 731-732.
Similar results were reached in Lockaby v Wayne County, 406 Mich 65; 276 NW2d 1 (1979), and Westervelt v Dep’t of Corrections, 406 Mich 941; 277 NW2d 642 (1979).
These cases make it clear that the exception to governmental immunity found in MCL 691.1406; MSA 3.996(106) is no longer to be governed by whether the instrumentality causing the injury was a fixture or structural part of the public building. Of concern now is whether the injury occurred in a "public place” and whether that public place was fit for its assigned and intended use.
In the instant case, the plaintiffs’ allegations invoking the public building exception follow the vein of Bush. The plaintiffs do not point to a particular fixture or part of the building as dangerous but aver that the defendant school district was negligent for the following reasons:
"* * * providing a school building and room that was defective and inadequate for the activity required or directed to be performed; that there was inadequate ventilation, excessive heat and perspiration which caused or contributed to the injuries sustained, and/or by otherwise failing to use due care in the ownership, maintenance, operation, utilization of such school building and/or by otherwise failing to use due care.”
The plaintiffs further allege that, at the time of the accident, the weight lifting room failed to have sufficient numbers of weight lifting safety machines or power racks to be used by the students and that the available floor mats or pads were not being used on the concrete floor to prevent possible slippage and lessen the likelihood of serious injury.
Thus, the plaintiffs in the case at bar, like the plaintiff in Bush, have alleged the existence of a dangerous condition on the basis of "fitness for intended use” and the absence of safety devices.
However, as the defendant school district notes, in the present case, unlike Bush and Lockaby, the complained-of room was being used as expected, as a gymnasium. Plaintiffs’ argument that the gymnasium was dangerous because there was inadequate ventilation and consequent excessive perspiration (causing the barbells to slip) would possibly require a distorted interpretation of the statutory exception and the concept of "dangerous or defective”. It is a common, and indeed unavoidable, experience that athletes perspire while in action. To allow the plaintiffs’ claim in this regard would be to overextend the purpose and meaning of the statute. The plaintiffs’ allegations fall more within the tenor of danger caused by the negligence (failure to exercise due care) of individual employees of the school district, rather than danger caused by the building itself. It appears from the facts that the lack of supervision, not a defect in the building, was the cause of the plaintiff’s injuries. Justice Ryan’s reasoning in his dissent in Bush, supra, 738-739, is applicable to the case at bar:
"Although I find the majority approach appealing as a substantive rule of law, I am compelled to dissent because such a construction of the 'building’ exception
does not at all square with the manifest intent of the Legislature as expressed in the governmental immunity statute, MCL 691.1407; MSA 3.996(107).
"When construing an exception to a general rule, care must be taken not to derogate from the general rule to the extent that its intent and purpose is undermined. See Grand Rapids Motor Coach Co v Public Service Commission, 323 Mich 624, 634; 36 NW2d 299 (1949). Today’s majority construes and applies the ^building’ exception in a way which significantly undermines the intent of the general immunity provision by characterizing as a building defect what is actually the behavior of the school district’s employees in utilizing a portion of the school building for a unique and highly specialized and always dangerous purpose, one for which it was not designed, constructed or intended to be used.”
In the instant case, the plaintiffs’ allegations concerning a defective or dangerous condition stem not from the condition of the building itself but from the activities or operations conducted within the building. To hold otherwise would expand the public building exception far beyond its purpose and intent and do violence to the will of the Legislature.
The order of the trial court granting accelerated judgment to defendants Ernest Mayoros and George Svitchan is reversed, the grant of accelerated judgment to defendants Hagadone and River-view Community School District is affirmed, and the matter is remanded for trial.
Reversed in part, affirmed in part.
The proper motion would have been one for summary judgment, GCR 1963, 117.2(1). However, this mislabeling is not fatal in the absence of prejudice. Butler v Wayne County Sheriffs Dep’t, 75 Mich App 202; 255 NW2d 7 (1977). | [
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R. B. Burns, P.J.
Plaintiff instituted suit against the defendants for breach of warranty. The trial judge, in a nonjury trial, granted a judgment for plaintiff against defendant Georgie Boy Manufacturing, Inc., in the sum of $7,155.* The court also awarded plaintiff court costs plus his actual attorneys’ fees as an additional cost. Defendant Georgie Boy appeals and we affirm.
On October 27, 1975, plaintiff purchased a new motor home from defendant Dick Loehr’s, Inc. The motor home had a chassis and engine manufactured by Ford Motor Company, its tires were manufactured and supplied by Goodyear Tire and Rubber Co., and it had a Mini Cruiser living assembly that was manufactured and installed by Georgie Boy. While driving home after having bought the motor home, plaintiff noticed a slight vibration in the vehicle. He thought that the vibration was due to the motor home’s nylon tires, which can develop a "flat spot” from sitting, and that the vibration would disappear when the tires warmed up. For the next four months the vehicle was only used for short city driving and for one 15-mile expressway trip to the dealer for a 1,000 mile check. Plaintiff noticed the vibration again on the trip to the dealer. In March, 1976, plaintiff and his wife took the motor home on a vacation trip to the South. At this time plaintiff discovered that the vibration did not disappear when the tires became warm. Although the trip had been planned to cover four states plaintiff shortened the trip and visited only two states because of the annoying vibration.
Upon returning home, plaintiff took the motor home to a Ford dealer who suggested that the vibration might be caused by a load distribution. Defendant Loehr’s told plaintiff that the vibration was caused by a defective tire and wheel bearing but when plaintiff took the motor home to Goodyear Tire he was told that the tires were not defective.
Finally, plaintiff contacted an attorney who wrote to Ford Motor Co., with copies to defendants, indicating the defect and demanding a cure. Georgie Boy replied and asked plaintiff to return the motor home to the Georgie Boy factory.
Eventually, it was determined that the tires, while not defective, when installed on this particular unit combined in such a way as to cause vibrations at certain speeds. Switching to a softer tire cured the vibration. There is a conflict in the testimony of the parties as to what next occurred. Richard Yost, service manager for Georgie Boy, testified that he informed Mrs. Cady that new tires would eliminate the vibration and offered to sell the new tires to her at wholesale price. He further stated that such an arrangement was unsatisfactory to Mrs. Cady.
Mrs. Cady testified that Georgie Boy never mentioned anything about the Cadys buying new tires. Mrs. Cady stated that she received a call from the service manager who told her to come and get the motor home because Georgie Boy was not going to fix it. The Cadys picked up the motor home from Georgie Boy and took it to Loehr’s to be sold. Loehr’s called and told the Cadys they could cure the vibration with new tires for $350. Mr. Cady replied that he would spend no more money on the motor home. Loehr installed new tires anyway and sold the motor home for $9,000.
The trial judge found that the vibrations were a major defect and prevented the plaintiff from using the motor home to make long trips which was the purpose of buying the vehicle. He also found that the vibrations were caused by the tires working with other parts of the vehicle and not just by the tires alone. The trial court further found that plaintiff acted within a reasonable time to revoke the contract.
Georgie Boy Manufacturing, Inc., claims that the trial court’s decision that there was a breach of warranty is not supported by the evidence, that the award of attorneys’ fees is not authorized by law, and that the trial court’s apportionment of damages — 95% attributed to defendant Georgie Boy and 5% to Loehr’s — is contrary to law and not support by the record.
Contrary to those contentions, in our opinion, the trial court’s findings that the vibrations were a major defect and that plaintiff acted within a reasonable time after discovery to rescind the contract are supported by the record.
Georgie Boy had not cited any authority to substantiate its claim that the trial court’s apportionment of damages was erroneous. The claim, therefore, will not be considered.
As to the award of attorneys’ fees, it is a general rule that attorneys’ fees are not ordinarily recoverable as costs. In the Matter of the Attorney Fees of Kelman, Loria, Downing, Schneider & Simpson, 406 Mich 497, 503; 280 NW2d 457 (1979). Indeed, most often attorneys’ fees will not be awarded absent statutory authority. State Farm Mutual Automobile Ins Co v Allen, 50 Mich App 71, 74; 212 NW2d 821 (1973).
In the present case the trial court stated, "[t]he Court does feel that under these circumstances that not just the attorney fees that we usually grant of $150.00 but the actual attorney fee is proper in the sum of $2,930.00”. Plaintiff maintains that he is entitled to recover the attorneys’ fees based upon the Michigan Uniform Commercial Code which allows the recovery of consequential damages. MCL 440.2714, 440.2715; MSA 19.2714, 19.2715. We have found no interpretation of this statute by any appellate court in this state which squarely resolves this issue.
MCL 440.2714(3); MSA 19.2714(3) provides that, ”[i]n a proper case any incidental and consequential damages under the next section may also be recovered”.
MCL 440.2715; MSA 19.2715 provides in part:
"(1) Incidental damages resulting from the seller’s breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, and commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.” (Emphasis added.)
This Court in Taxpayers & Citizens in the Public Interest v Dep’t of State Highways, 70 Mich App 385; 245 NW2d 761 (1976), and Superior Public Rights, Inc v Dep’t of Natural Resources, 80 Mich App 72; 263 NW2d 290 (1977), held that under section 3(3) of the Environmental Protection Act, MCL 691.1203(3); MSA 14.528(203X3), the clause "[c]osts may be apportioned to the parties if the interests of justice require” gave the trial judge the right to exercise his discretion to grant attorneys’ fees.
Similarly, we find that the language of MCL 440.2714, 440.2715; MSA 19.2714, 19.2715, confers on the trial court discretion to award attorneys’ fees as an element of the damages incurred as a result of a breach of warranty. Under the facts of this case, the trial court’s exercise of its discretion to award attorneys’ fees as a "reasonable expense incident to the breach” was proper.
Affirmed. Costs to plaintiff.
A judgment in the sum of $500 was awarded against defendant Dick Loehr’s, Inc. That award has not been appealed by Leohr’s.
In the judgment the trial court indicated that plaintiffs attorneys’ fees were awarded as an "additional cost”. We have not reached the issue of whether the attorneys’ fees are recoverable as a cost since we have found that they are recoverable as incidental or consequential damages. Peninsular Construction Co v Murray, 365 Mich 694, 699; 114 NW2d 202 (1962). | [
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Beasley, P.J.
On April 24, 1978, plaintiff, Bertha N. Welch, was awarded a judgment of divorce from defendant, Thomas A. Welch, which judgment provided for alimony as follows:
"It is further ordered and adjudged that the defendant, Thomas A. Welch, shall pay to the plaintiff, Bertha N. Welch, for support and maintenance, the sum of sixty dollars ($60) per week, as alimony, payable through the office of the Friend of the Court for Saginaw County, Michigan. Said alimony payments shall commence as of Monday, March 6, 1978, and shall continue for a period of five years, after which the weekly payments shall be reduced to fifty dollars ($50) per week, and continue for the lifetime of the plaintiff. In the event that plaintiff, Bertha N. Welch, shall remarry, defendant shall thereafter be relieved of his obligation to pay alimony.”
On October 13, 1980, defendant petitioned the court for a decrease in alimony. On November 18, 1980, the trial court filed an opinion holding that the alimony during the first five-year period after the divorce was alimony in gross and, as such, could not be modified. Defendant appeals as of right, claiming the trial court erred in finding that the alimony provision in the judgment constituted alimony in gross for the first five years.
Defendant’s claim is that the provision terminating alimony in the event of plaintiff’s remarriage defeats the conclusion that it was alimony in gross. He reasons that because of this provision, the alimony is not a specifically ascertainable sum either in lump sum or in installments of a definite amount.
Oknaian v Oknaian was a case similar to this, except for the crucial difference that here her remarriage would terminate alimony. In Oknaian, where the divorce judgment provided that "payments for the first five years from date of Judgment shall not be modifiable for remarriage, employment or any other cause; however, after said five-year period said alimony shall be payable to the Defendant-wife until her remarriage, or until further Order of the Court”, we found that for the first five years the payment constituted alimony in gross and, thus, was not subject to modification for change of circumstances. In the case at bar, there is no such provision preventing remarriage from terminating alimony in the first five years. This fact distinguishes this case from Oknaian. We hold that here the alimony provided in the divorce judgment for the first five years was not alimony in gross. Rather, it was a provision for permanent, periodic alimony, subject to modification in the event of change in the parties’ circumstances.
Plaintiff also claims that the security provision of the divorce judgment relating to alimony during the first five years leads to a conclusion that the alimony during the first five years was alimony in gross. The divorce judgment provides for impressing a lien in the sum of $2,600 upon real property of defendant to secure the first five years alimony. We would be more impressed by this argument if the judgment called for a lien in the amount of $15,600 (which would be $60 per week times 52 weeks times 5 years), rather than $2,600. We decline to hold that, in this case, the security provision of the divorce judgment alters our conclusion that alimony in gross was not awarded.
Accordingly, we conclude that the divorce judgment calls for permanent, periodic alimony and not alimony in gross. Since the alimony will terminate in the event of plaintiffs remarriage, it is modifiable. This case is remanded to the circuit court for further proceedings on defendant’s petition to modify alimony.
Reversed and remanded.
Firnschild v Firnschild, 67 Mich App 327, 329; 240 NW2d 790 (1976).
90 Mich App 28, 30; 282 NW2d 230 (1979).
MCL 552.28; MSA 25.106. See Graybiel v Graybiel, 99 Mich App 30; 297 NW2d 614 (1980). | [
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Per Curiam.
On August 5, 1975, the defendants were charged with four counts of murder for the shooting deaths of two men. The information charged the defendants with two counts each of felony murder and first-degree premeditated murder, MCL 750.316; MSA 28.548. Since the defendants were incarcerated in Ohio at the time, a warrant was filed with the Ohio prison as a detainer. The defendants were returned to Michigan on January 8, 1976, where they were arraigned. On January 22, 1976, the magistrate dismissed the two felony-murder counts and bound the defendants over for trial on the charge of first-degree premeditated murder. The defendants were convicted by a Recorder’s Court jury of the second-degree murder of two men. The defendants were sentenced to a term of life imprisonment for one murder and an additional term of 50 to 75 years for the second murder. Both defendants appeal from their convictions as a matter of right. Their cases have been consolidated on appeal.
In order to properly resolve this appeal, we must delve at some length into its somewhat complex factual background.
Sidney Kinnard testified at the trial that he was employed at Pete and Doll’s Party Store on October 19, 1973. At approximately 8:20 p.m., two men entered the store and stood in the back whispering to each other. One man went to the beer cooler and brought a can of beer to the counter. The other man got a bottle of red pop and also brought it to the counter. Andrew Harris, the manager, rang up the purchases and remarked, "Ninety-eight cents to you and everybody else I charge more”. The man with the beer said, "yeah, sure”, and pulled out a gun. The manager and Kinnard ducked down to the floor as a shot was fired. There were two or three more shots. The manager attempted to reach for the gun he wore at his side. At that time, the man with the beer leaned over the counter and shot Mr. Harris. Kinnard heard three or four more shots. When he got up from the floor, he saw that Mr. Harris and Mr. Ellis, a customer, were lying on the floor. The two men who had come in together were gone. No money or other object was taken from the store during the incident. Harris was found lying on his gun. A third gun which had been kept underneath the counter was recovered at the scene.
Mr. Kinnard had attended a lineup on January 8, 1976, in which both defendants were present, but failed to identify anyone. In court, Kinnard identified Lamar Potts as the man with the beer who pulled out the gun and identified Willie Lyles as the man with the pop.
The autopsy report revealed that Harris died as the result of a gunshot wound to the top of his head from a .38-caliber pistol. Mr. Ellis died from a gunshot wound which entered at the left side of his head, just behind his left ear. The gun, also a .38-caliber, was fired at close range, approximately one inch from Ellis’ skull.
Iris Clay was in the party store a few minutes before the shooting. While inside, she saw two men talking to each other near the beer cooler. As she left the store, she heard shots fired and ran across the street. She observed two men running out of the store and identified Potts as the shorter man. She said that the taller man was firing a gun as he stood at the door. She also testified that she had identified Potts at a lineup. Alonzo Richards was another customer who was inside the store when the shooting started. Earlier he had observed two men standing by the beer cooler. When the shooting began, Richards ran outside and across the street. Later he saw two men running out of the store and going around the corner into a small, dark-colored car. Richards saw a gun lying on the sidewalk on the escape route taken by the two men and also saw a pair of shoes. He pointed out these objects to the police. Richards was not asked to identify the defendants.
Oscar Johnson had accompanied Iris Clay to the party store that night. He observed two men whispering in the rear area of the store. He left the store when the shooting started and saw three men run out of the store. The first was a customer. The second man ran toward the alley to a waiting car. The third man came out, stumbled, and dropped a gun. He also lost his shoes and then proceeded into the green Pinto that the second man had entered. Someone had been sitting in the car which then sped away. Mr. Johnson returned to the store and saw the first man, who had run out, whom he identified as Alonzo Richards. Johnson gave the police a description of the men, but was not asked to identify the defendants at a lineup.
Three guns were found at the scene of the shootings. Three shots were fired by the pistol in Mr. Harris’ hand. No shots were fired from the pistol kept under the counter. Both of these were nine millimeter pistols. The .38-caliber slugs which were removed from the bodies of Harris and Ellis did not come from the .38-caliber revolver which had been dropped by one of the perpetrators outside the store. It was determined that both shots were fired from the same weapon which was never recovered. The can of beer and bottle of pop which had been left on the counter were tested for fingerprints. The print taken from the beer can was positively identified as belonging to Potts. The print taken from the pop bottle was positively identified as belonging to Lyles. The prints on the .38-caliber pistol dropped in front of the store were smudged and not usable for purposes of comparison.
The parties all stipulated for the admission into evidence of a police report taken by a Cleveland, Ohio police officer at 11:55 p.m. on October 19, 1973. This report involved a complaint filed by the defendant Potts, wherein he stated that he had been the victim of an armed robbery in Cleveland at 9:20 p.m. During the alleged robbery, Potts had received a gunshot wound to the upper right arm, lodging in his chest. He alleged further that the unknown robbers had stolen his shoes. The parties stipulated to the fact that the distance between Cleveland and Detroit is 170 miles. The defendants rested without testifying or presenting any witnesses in defense.
On appeal, both defendants contend that the magistrate abused his discretion in binding them over for trial on the charge of first-degree murder where there was no testimony to establish premeditation or deliberation. Lyles contends that there was no evidence to link him to the murders, since no one saw him with a gun, nor was there any other evidence of his participation or assistance in the killings.
In deciding whether a defendant should be bound over for trial, a magistrate need not establish his guilt beyond a reasonable doubt. It is sufficient if the magistrate determines that the charged offense was committed and that there was probable cause to believe that defendant was guilty. People v Doss, 406 Mich 90, 100-101; 276 NW2d 9 (1979). A reviewing court will overturn the magistrate’s decision to bind over only upon a finding of an abuse of discretion. Doss, supra, Wayne County Prosecutor v Recorder’s Court Judge, 92 Mich App 119; 284 NW2d 507 (1979).
Premeditation and deliberation were defined in People v Morrin, 31 Mich App 301, 329-330; 187 NW2d 434 (1971), as follows:
"Accordingly, it underscores the difference between the statutory degrees of murder to emphasize that premeditation and deliberation must be given independent meaning in a prosecution for first-degree murder. The ordinary meaning of the terms will suffice. To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem. As a number of courts have pointed out, premeditation and deliberation characterize a thought process undisturbed by hot blood. While the minimum time necessary to exercise this process is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a 'second look’.” (Footnotes omitted.)
The Court enumerated the types of evidence from which premeditation and deliberation could be inferred: a prior relationship of the parties indicating a motive, the use of a weapon which was acquired in preparation for a homicide, circumstances and events preceding the killing, and the defendant’s subsequent conduct to suggest a scheme or plan. The Court indicated that the use of a deadly weapon was not in itself sufficient unless there was evidence that it was acquired or positioned with the thought beforehand of using it to kill the victim. See also, People v Meadows, 80 Mich App 680, 691-692; 263 NW2d 903 (1977), People v Griner, 30 Mich App 612; 186 NW2d 800 (1971). In People v Berthiaume, 59 Mich App 451, 456; 229 NW2d 497 (1975), the Court made the following statement about premeditation in first-degree murder:
"Emerging from these cases is a reaffirmation of the following well established principles:
" '(1) Premeditation can be reasonably inferred from the circumstances surrounding the killing;
" '(2) a defendant may not be found guilty of first-degree murder if he did not have an opportunity to subject the nature of his response to a second look or reflection, i.e., one cannot instantaneously premeditate a murder;
" '(3) a sufficient time lapse to provide an opportunity for a 'second look’ may be merely seconds, or minutes, or hours, or more, dependent on the totality of the circumstances surrounding the killing;
" '(4) where it is factually clear that there is no evidence of premeditation the trier of fact may not consider a charge of first degree murder.’ People v Meier, 47 Mich App 179, 191-192; 209 NW2d 311 (1973).” (Emphasis in original.)
See also, People v Jesse Smith, 81 Mich App 190, 199-200; 265 NW2d 77 (1978).
We find that there was sufficient evidence presented from which we can infer the requisite premeditation and deliberation. The killer of Harris, the store manager, entered the store armed with a weapon, began shooting shortly thereafter with no provocation, and had to bend over the counter in order to fire the fatal shot. This indicates that he entered with the intention of shooting and had the opportunity for a "second look”. The customer, Ellis, was shot from behind his head at a distance of only an inch or two. This indicates that Ellis was not the victim of an accident or a cross fire, but rather denotes a deliberate execution. The perpetrators fled into a waiting car, which also implies there was a design or plan rather than a spur of the moment attack.
We also find sufficient evidence of involvement on the part of Lyles to support binding him over on the charged offense. Lyles came into the store with Potts. They stood in the back whispering together moments before the shooting began. Potts dropped his weapon, which was not the murder weapon, leading to the reasonable inference that Lyles had the murder weapon in his possession. Furthermore, Potts was apparently leaning over the counter while Lyles was standing slightly behind. Ellis was standing at the counter and was shot from behind, but at close range. Thus, it can reasonably be inferred that Lyles was the one who shot Ellis. Lyles and Potts ran out of the store together and entered the same car which had been waiting in the alley. We find that Lyles was either the principal or at least an aider and abettor and was properly bound over for trial.
The defendants allege further that the trial court had no jurisdiction over them because a period of 327 days elapsed between their return to Michigan from the Ohio State Reformatory and their trial in violation of the 120-day requirement of the Interstate Agreement on Detainers Act, MCL 780.601; MSA 4.147(1).
Article IV(c) of the act provides as follows:
"In respect of any proceeding made possible by this Article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.”
In the event of noncompliance with this provision, Article V(c) of the act requires the appropriate court to dismiss the information with prejudice.
A review of the instant record indicates that all but 118 days of the delay between January 8, 1976, when defendants were brought into Michigan, and the trial date of November 30,1976, were occasioned by defense counsel’s requests for delays and adjournments. These delays cannot be attributed to the prosecution. People v Cook, 95 Mich App 645; 291 NW2d 152 (1980), Stroble v Anderson, 587 F2d 830, 838-840 (CA 6, 1978), cert den 440 US 940; 99 S Ct 1289; 59 L Ed 2d 449 (1979). This issue is, therfore, without merit.
The defendants also allege that the trial court erred reversibly in denying defendants’ motion to suppress Mr. Kinnard’s testimony and in allowing him to identify the defendants in court where there was no proof that his in-court identification had an independent basis from the pretrial lineup at which the witness had failed to identify anyone.
In People v Anderson, 389 Mich 155, 168-169; 205 NW2d 461 (1973), the Supreme Court established the following guidelines for identification procedures:
"1. Defendant is entitled to counsel at pretrial identified procedures (Wade). [United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967)].
"2. Unnecessarily suggestive and conducive to irreparable misidentification procedures deny due process (Stovall). [Stovall v Denno, 388 US 293; 87 S Ct 1967; 18 L Ed 2d 1199 (1967)].
"3. If there was no counsel at the pretrial identification or if the procedures were unnecessarily suggestive or conducive to irreparable misidentification, then before an in-court identification may be received in evidence, the trial court must hold an evidentiary hearing out of the presence of the jury at which the people must show by clear and convincing evidence that the in-court identification had a basis independent of the prior identification procedure (Wade).
"4. Direct testimonial evidence relating to the pretrial out-of-court identification is per se excluded (Gilbert). [Gilbert v California, 388 US 263; 87 S Ct 1951; 18 L Ed 2d 1178 (1967)].
"5. On appeal, if the Court finds that the evidence was erroneously admitted under the above standards, the Court must reverse the conviction and order a new trial unless it is able to declare beyond a reasonable doubt that the in-court identification did not affect the verdict.
"6. If the record is not complete and a determination either way cannot be made, the Court should vacate the conviction and remand to the trial court for a hearing on the issue. (Footnotes omitted.)
In People v Belenor, 71 Mich App 10, 13; 246 NW2d 355 (1976), the Court considered a situation where the witness was unable to identify anyone at a pretrial photographic identification, but did identify the defendant at the examination. This Court upheld the lower court’s ruling that the photographic identification procedure had not been impermissibly suggestive and added the following pertinent observation:
"Most significantly, it does not require an abundance of common sense to realize that any possible 'suggestiveness’ in the photographic display totally failed to register with the witnesses. The photographs were shown over two weeks before the corporeal lineup in which all four witnesses failed to identify defendant. The conclusion that this procedure was not unduly suggestive is compelling. A remand is thus unnecessary. People v William Clark, 68 Mich App 48; 241 NW2d 756 (1976).”
See also, People v Manuel Johnson, 58 Mich App 347, 351-352; 227 NW2d 337 (1975).
In the instant case, defendants’ contention that the lineup tainted the witness’s subsequent in-court identification is illogical, since the witness failed to identify anyone at the lineup. Hence, we conclude that any suggestiveness did not register with the witness.
Although not argued by the defendants, we must, sua sponte, consider whether there is a basis for finding error in the fact that Kinnard’s identification of these defendants at the preliminary examination may have tainted his subsequent in-court identification.
In People v Solomon, 391 Mich 767; 214 NW2d 60 (1974), the Supreme Court adopted Chief Judge Lesinski’s dissenting opinion, 47 Mich App 208, 216-221; 209 NW2d 257 (1973), wherein he concluded that a preliminary examination is a pre trial confrontation which may be impermissibly suggestive. The factors which were to be examined on the issue of whether the preliminary examination identification was impermissibly suggestive were: (1) the time between the criminal act and the confrontation and (2) the length of time during which the witness observed the defendant during the offense. The Court must also examine the "totality of the circumstances” in each particular case. In Solomon, a police officer told the witness before the preliminary examination that they had the right man, 2-1/2 years had elapsed between the robbery and the confrontation, and the witness identified the defendant in the courtroom for the first time, after having seen defendant prior to the identification in the judge’s chambers. Since identification of the defendant was a primary issue at the trial and two other witnesses had only seen defendant’s face for a moment, this identification testimony was crucial to the outcome of the case. The matter was remanded to the trial court for a determination of whether the in-court identification had an independent basis. The rule in Solomon has been applied narrowly in subsequent cases. Manuel Johnson, supra.
In the instant case, Kinnard saw the defendants for only a brief period of time before the shooting started. The lineup took place a full two years later, at which time Kinnard was unable to identify anyone. At the preliminary examination, the defendants were sitting at the defense table when Kinnard positively identified them as the perpetrators. When questioned about his inability to identify them at the lineup, the witness answered that he did not remember their faces then and had been distracted by something else during the lineup. We would, therefore, find that, under the Solomon criteria, the preliminary examination confrontation was impermissibly suggestive and that Kinnard’s identification testimony should have been excluded unless there was a finding that the in-court identification had an independent basis under the criteria enumerated in People v Kachar, 400 Mich 78, 95-97; 252 NW2d 807 (1977). Ordinarily, we would remand the case for an evidentiary hearing.
However, in the instant case, we find that any error was harmless beyond a reasonable doubt and that a remand is not required. People v Fournier, 86 Mich App 768, 780; 273 NW2d 555 (1978). There was strong evidence linking defendants to the crime, albeit this evidence was circumstantial in nature. We deem it unlikely that the verdict would have been affected by deletion of Kinnard’s identification testimony. Therefore, we decline to remand for an evidentiary hearing on the issue of an independent basis.
We have reviewed defendants’ remaining allegations of error and find them to be without merit.
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] |
Per Curiam.
Raymond Boyd attempted suicide in Lansing on August 27, 1975, and was referred to the defendant clinic where he was counseled and released. Shortly thereafter, he committed suicide. Rubin Boyd, as administrator of his estate, filed suit for malpractice against defendant in Wayne County Circuit Court on August 8, 1977. Venue was changed by stipulation to Ingham County Circuit Court.
The case was placed on the no progress docket and dismissed on March 1, 1979. Plaintiff moved to reinstate the case, but after a hearing the motion was denied by order of May 11,1979.
Because plaintiff’s counsel calculated that the statute of limitations had not yet run, he decided to file a second complaint on May 23, 1979, rather than appeal the case which had been dismissed. Defendant successfully moved the same trial court for accelerated judgment on the basis of the statute of limitations having run, prompting plaintiff to pursue an appeal by right.
Subsequently, plaintiff applied to this Court for delayed appeal from the denial of his motion to reinstate his original complaint. At the same time he moved this Court to consolidate the two appeals in the event that the application was granted. Both the application and the motion in this Court have been granted.
At the motion hearing for reinstatement plaintiffs attorney explained that it was his partner who had stipulated to a change of venue, and, while the court had sent them notice of the change of venue, there was no court order to that effect. Furthermore, the lack of such order frustrated the filing system of the office staff, who assumed that the case was still in Wayne County and who, accordingly, had filed case-related documents in Wayne rather than Ingham County.
The record reflects a fair amount of activity between the parties prior to the case’s being placed on the no progress docket, including interrogatories from defendant, medical authorizations for records from plaintiff and correspondence concerning settlement possibilities. Neither on appeal nor at the reinstatement hearing did defense counsel indicate how his case had been actually prejudiced by the delay in the proceedings. Moreover, we note that under the local circuit court rules for Ingham County either party may initiate a demand for a pretrial conference, yet it appears that no such demand was made. And finally, although we share and appreciate the lower court’s concern for an efficient administrative schedule — as evidenced by the court’s recital of the maxim that the law aids the diligent and the vigilant, not the negligent — we are persuaded that a less drastic measure, such as an imposition of costs for delay, was warranted in this matter. Heaney v Verson Allsteel Press Co, Inc, 64 Mich App 597; 236 NW2d 155 (1975), Heins v Sutphin, 76 Mich App 562; 257 NW2d 169 (1977).
Given our ruling that the motion for reinstatement was improperly denied, the issues which plaintiff addresses in his appeal by right from the defendant’s accelerated judgment are now moot. The judgment of the lower court granting accelerated judgment to the defendant is vacated, and the lower court is directed to reinstate plaintiffs suit. So ordered.
Reversed and remanded. | [
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D. E. Holbrook, Jr., P.J.
Defendant was convicted by a jury of criminal sexual conduct in the first degree, MCL 750.520b(l)(a); MSA 28.788(2)(l)(a), and was thereafter sentenced to a 5 to 20 year term of imprisonment. Subsequent to sentencing, the prosecutor filed a supplemental information against the defendant charging him as a second felony offender in violation of MCL 769.10, 769.13; MSA 28.1082, 28.1085. Following objections to the supplemental information by defense counsel, defendant pled guilty to the same. At the plea hearing the assistant prosecutor admitted that the supplemental information was filed because defendant had previously exercised his right to a jury trial. Moreover, the prosecutor was aware of the previous conviction. Following defendant’s plea to the second offender charge, the trial judge resentenced defendant to the identical 5 to 20 years imprisonment. Defendant appeals claiming his conviction as a second offender must be set aside. We agree and reverse.
In People v Fountain, 407 Mich 96; 282 NW2d 168 (1979), the Supreme Court held that a prosecutor who knows a defendant has a prior felony record must proceed promptly, if at all, against the person as a habitual offender. In People v Reese, 97 Mich App 785; 296 NW2d 172 (1980), it was held that the rule of Fountain should be applied to future cases and to all cases which were pending on appeal at the date of the Fountain decision.
That Fountain applies to instances where a defendant pleads guilty is evident from page 96 of that opinion as it relates to the defendant Jones therein.
Here the prosecutor, although he knew of the previous conviction, waited until after sentencing to proceed with the second offender charge. Such is violative of the principle of Fountain and since this was a case pending on appeal on the date of the Fountain decision the rule set forth in Reese renders Fountain applicable to the instant case. Nor does it matter that the sentences in both instances were the same, for the ramifications of the second offender conviction are great. Accordingly, defendant’s conviction as a second offender is set aside and defendant shall serve his sentence pursuant to his conviction for criminal sexual conduct only.
Reversed.
E. E. Borradaile, J., concurs in the result only. | [
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Per Curiam.
Defendant, James A. Washington, was found guilty by a jury of first-degree premeditated murder, MCL 750.316; MSA 28.548. He was sentenced to life imprisonment and appeals by right.
The defendant has raised four issues on appeal. He first contends that the prosecutor improperly questioned witnesses and commented in closing argument on the defendant’s silence in the face of an accusatory statement.
The tacit admission rule, which permits a defendant’s silence in the face of an accusation to be used against him, is not utilized in criminal cases in Michigan. In People v Bigge, 288 Mich 417, 419; 285 NW 5 (1939), the Michigan Supreme Court reversed the defendant’s conviction where the prosecutor had stated in his opening statement, without proper objection by the defense, that he would produce a witness who would testify that the defendant had not denied his brother-in-law’s statement:
"What’s the use of going over this matter again. Charles was guilty as hell.”
The Court reasoned:
"The time has not yet come when an accused must cock his ear to hear every damaging allegation against him and, if not denied by him, have the statement and his silence accepted as evidence of guilt. There can be no such thing as confession of guilt by silence in or out of court. The unanswered allegation by another of the guilt of a defendant is no confession of guilt on the part of a defendant. Defendant, if he heard the statement, was not morally or legally called upon to make denial or suifer his failure to do so to stand as evidence of his guilt. He said nothing, and what was said in his presence by another was inadmissible, just as the court later held.” 288 Mich 417, 420.
In People v Parks, 57 Mich App 738, 750; 226 NW2d 710 (1975), the prosecutor had asked a witness whether the defendant had responded to a statement made by the witness:
"The Witness: I said it was my opinion he did it, and that his job — he could not have his job back.
”Q. (By Mr. Wilkinson): Did he respond in any way to your statement?
”A. I don’t think so.”
In that case, it was not clear if the defendant objected. The Court reversed the defendant’s conviction, noting that the adoptive or tacit admission rule in the area of criminal law has been repudiated as violative of the Fifth Amendment right against self-incrimination. See also, People v Wardell, 26 Mich App 69; 181 NW2d 788 (1970) (implicating a defendant by showing his failure to have protested his innocence when confronted with incriminating remarks held to be clear error).
The people contend that any error caused by the prosecutor’s questions and argument as to the defendant’s silence in the face of an accusatory statement was harmless error. The error in this case was not "harmless beyond a reasonable doubt”. An error is not "harmless beyond a reasonable doubt”:
"If it is reasonably possible that in a trial free of the errors complained of, even one juror might have voted to acquit the defendant, then the error was not harmless, and the defendant must be retried. If, on the other hand, the proof was so overwhelming, aside from the taint of error, that all reasonable jurors would find guilt beyond a reasonable doubt, then the conviction must stand.” People v Christensen, 64 Mich App 23, 33; 235 NW2d 50 (1975).
The main evidence in the present case was the testimony of the defendant that Clifton Driver had shot the deceased and the testimony of Clifton and his pregnant girlfriend, Thelma Howard, that the defendant had done the shooting. It is reasonably possible that the prosecutor’s injection into the evidence of the defendant’s implied admission of guilt through silence could have affected at least one juror’s decision in balancing the credibility of these three witnesses, and, thus, it cannot be said to have been "harmless beyond a reasonable doubt”.
The defendant’s second contention is that it was reversible error for the prosecutor to attempt to bolster a witness’s trial testimony by introducing, over a defense objection, testimony of a police officer that this witness had made prior consistent statements.
Evidence of prior consistent statements of a witness is generally inadmissible as substantive evidence. Brown v Pointer, 390 Mich 346, 351; 212 NW2d 201 (1973), People v Hallaway, 389 Mich 265, 276; 205 NW2d 451 (1973) (Justice Brennan concurring). Evidence of prior consistent statements is admissible, however, to rebut a charge of recent fabrication or as evidence of whether or not a witness had made a prior inconsistent statement. People v Harris, 86 Mich App 301, 305; 272 NW2d 635 (1978), People v Coles, 79 Mich App 255, 260-261; 261 NW2d 280 (1977). The evidence in the instant case must qualify under the recent fabrication exception if it is to be admissible, since no evidence of any prior inconsistent statement had been brought out during cross-examination. In Brown v Pointer, 41 Mich App 539, 548; 200 NW2d 756 (1972), rev’d on other grounds 390 Mich 346 (1973), this Court set forth the guidelines for admission of prior consistent statements to rebut a charge of "recent fabrication”:
"Michigan permits the admissibility of prior consistent statements in order to rehabilitate an impeached witness if (1) the impeachment of the sworn testimony attacked the witness as having had a motive for changing or falsifying his testimony so as to have been of recent contrivance or fabrication, and (2) if the earlier consistent statement was given at a time prior to the existence of any fact which would motivate bias, interest, or corruption. People v Miniear, 8 Mich App 591 [155 NW2d 222] (1967); People v Gardineer, 2 Mich App 337 [139 NW2d 890] (1966).”
The evidence at issue in the present case was testimony of a police officer that Clifton Driver’s testimony at trial was "the same” or "for the most part” the same as his earlier statements to the officer on the morning of the shooting and at other times thereafter. The officer did not testify as to the content of the earlier statements. This evidence was not properly admitted to rebut an implication of "recent fabrication” raised by defense counsel during cross-examination of Clifton Driver, since the prior consistent statements were not prior in time to the alleged statements brought out during cross-examination showing a possibility of recent fabrication and, therefore, did not tend to show that the witness’s version of the case re mained unchanged. See People v Therrien, 97 Mich App 633; 296 NW2d 8 (1979).
The cumulative effect of the admission of evidence of the defendant’s silence in the face of accusation and evidence that Clifton Driver’s earlier pretrial statements were consistent with his testimony at trial was to diminish the credibility of the defendant and to bolster the credibility of a witness for the prosecution. See People v Harris, supra, 305. Since the evidence presented by each side in this case was conflicting, witness credibility was crucial to the jury’s verdict. It is reasonably possible that in a trial free of these errors at least one juror might have voted to acquit the defendant. People v Christensen, supra. Therefore, this error was not harmless.
The defendant’s final two claims do not warrant extended discussion. The prosecutor did not improperly vouch for the credibility of witnesses by informing the jury of the plea bargain entered into to secure their testimony, and the trial judge did not err in failing to give a sua sponte instruction on accomplice testimony under the circumstances in this case.
Reversed and remanded for new trial. | [
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] |
M. J. Kelly, J.
Defendant Gary Jurkiewicz appeals as of right his jury conviction for breaking and entering with intent to commit larceny. MCL 750.110; MSA 28.305. At the conclusion of defendant’s trial, the jury returned with a verdict of guilty of the charged offense but mentally ill. The defendant raises a total of nine issues, only one of which merits discussion.
Defendant alleges that the trial court committed error requiring reversal when it permitted the prosecution, during its case in chief, to elicit opinion testimony from the arresting officer regarding the defendant’s sanity. It is argued that the lower court should have excluded the officer’s testimony since the prosecution failed to file a notice of rebuttal of the defense of insanity as required by MCL 768.20a(7); MSA 28.1043(1)(7). We agree.
If a prosecutor intends to rebut a properly noticed defense of insanity, MCL 768.20a(1); MSA 28.1043(1)(1), there must be filed, prior to trial, a notice of rebuttal conforming to the following statutory prerequisites:
"Within 10 days after the receipt of the report from the center for forensic psychiatry or within 10 days after the receipt of the report of an independent examiner secured by the prosecution, whichever occurs later, but not later than 5 days before the trial of the case, or at such other time as the court directs, the prosecuting attorney shall file and serve upon the defendant a notice of rebuttal of the defense of insanity which shall contain the names of the witnesses whom the prosecuting attorney proposes to call in rebuttal.” MCL 768.20a(7); MSA 28.1043(1)(7).
The penalty for prosecutorial failure to comply with the above provision is statutorily provided in MCL 768.21(2); MSA 28.1044(2):
"If the prosecuting attorney fails to file and serve a notice of rebuttal upon the defendant as provided in section 20 or 20a, the court shall exclude evidence offered by the prosecution in rebuttal to the defendant’s evidence relevant to a defense specified in section 20 or 20a. If the notice given by the prosecuting attorney does not state, as particularly as is known to the prosecuting attorney, the name of a witness to be called in rebuttal of the defense of alibi or insanity, the court shall exclude the testimony of a witness which is offered by the prosecuting attorney for the purpose of rebutting that defense.”
In this case, the prosecutor admittedly did not file a notice of rebuttal. Despite this procedural infirmity, the prosecutor posed the following direct examination question to the arresting officer during its case in chief:
”Q. (By Mrs. Morman [prosecutor]): Based on the hour to hour-and-a-half contact you had with Mr. Jurkiewicz on April 14, 1979, did you have an opinion at that time as to whether Mr. Jurkiewicz was mentally ill that evening, your own opinion, not as a psychiatrist?
"Mr. Traver [defense counsel]: Same objection, lack of foundation.
"The Court: You may proceed. The objection’s been overruled.
"A. At that time the defendant, Mr. Jurkiewicz, appeared normal to me in every way. I had no reason at all to believe that he was mentally ill in any way.”
In People v Williams, 107 Mich App 798, 800; 310 NW2d 246 (1981), this Court recognized that the purpose of MCL 768.20a; MSA 28.1043(1) was to prevent surprise at trial. The prosecution’s failure to comply with the statutory notice requirements necessitates exclusion of the proffered evidence. Id., 800. Although rebuttal evidence must be excluded if the statute is not complied with, the trial court has discretion to allow the prosecution to file a late notice of rebuttal. Id., 800. The trial judge may also call the rebuttal witness as its own expert pursuant to MRE 706. Id., 801.
In this case, the prosecution never filed a notice of rebuttal to defendant’s insanity defense. Furthermore, the prosecutor did not request permission to file a late rebuttal notice, nor did the trial court call the officer as its own expert. The officer’s testimony rebutting defendant’s insanity defense completely surprised defendant and should have been excluded. The trial court erred when it allowed the officer to rebut defendant’s insanity defense.
Reversed and remanded for a new trial.
D. C. Riley, J., concurred.
We note that this penalty for failure of a prosecutor to file the required notice of rebuttal of insanity applies with equal force to a prosecutor’s failure to file a notice of rebuttal to the defense of alibi. MCL 768.20(2); MSA 28.1043(2). | [
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Per Curiam.
Plaintiff filed suit in Wayne County Circuit Court seeking to enjoin revocation of his concealed weapon license by the Wayne County Concealed Weapon Licensing Board. The circuit court denied relief, and plaintiff appeals as of right.
Plaintiff was issued a concealed weapon license, restricted to business, home, and bank. On May 28, 1979, plaintiff’s vehicle was stopped by a Michigan state trooper in the vicinity of Lapeer, Michigan. At the trooper’s request, plaintiff produced his driver’s license, which was attached to his concealed weapon license. The officer asked if plaintiff was carrying a weapon and confiscated the weapon upon receiving an affirmative response. The local prosecutor sent the officer’s report to the defendant Wayne County Concealed Weapon Licensing Board ("licensing board”).
The licensing board convened on July 10, 1979, and revoked plaintiffs weapon license. Since no hearing was conducted, plaintiff had no opportunity to present his case to the licensing board. The board’s action was based solely on the state trooper’s report and the letter from the local prosecutor.
Concealed weapon licensing boards are specifically required to conduct a hearing before revoking any weapon license. MCL 28.428; MSA 28.96. Accordingly, the circuit court granted plaintiff’s ex parte motion for an injunctive order requiring defendants to issue a license to plaintiff and to afford him a revocation hearing.
The board conducted such a hearing on September 21, 1979. MCL 28.426(5); MSA 28.93(5) provides that a concealed weapon license "shall be an authorization to carry a pistol in compliance with this section only to the extent contained in the face of the license and the license shall be revoked by the board if the pistol is carried contrary to the authorization”. The state trooper gave testimony tending to show that when the weapon was confiscated plaintiff was not engaged in "business” and therefore was carrying a weapon "contrary to the authorization of his license”. Plaintiff and his employer testified that when the weapon was confiscated plaintiff was carrying $7,000 in cash to be delivered to the employer the following day.
In the course of the trooper’s testimony, it became apparent that he had discussed the case with the licensing board prior to the hearing and that the board had told him "the essence of what transpired before the hearing”.
After the hearing, the licensing board informed plaintiff that it had decided to cancel his license on the ground of improper use of license”. Plaintiff thereupon instituted a second civil action in Wayne County Circuit Court, once again seeking to enjoin revocation of his license. Plaintiff contended that the licensing board failed to comply with two provisions of the Administrative Procedures Act of 1969 ("APA”), MCL 24.201 et seq.; MSA 3.560(101) et seq. The circuit court held that the APA was inapplicable to the licensing board’s proceedings and denied relief, prompting this appeal.
The licensing board initially attacks the propriety of the present appeal, claiming that plaintiff "has not challenged the [circuit] court’s denial of relief’, and that therefore no grounds for appeal have been presented. To the contrary, plaintiff has properly challenged the circuit court’s holding that the APA is inapplicable to the licensing board’s proceedings. Consequently, this contention is without merit.
The purpose of the Legislature in enacting the APA was, inter alia, "to provide for state agency administrative procedures and contested cases and appeals therefrom in licensing and other matters * * 1969 PA 306, MCL 24.201 et seq.; MSA 3.560(101) et seq.
The APA defines an "agency” as "a state department, bureau, division, section, board, commission, trustee, authority or officer, created by the constitution, statute, or agency action”. MCL 24.203(2); MSA 3.560(103)(2). Clearly, the licensing board is a "board * * * created by * * * statute”. However, the APA is inapplicable to the board’s proceedings unless the board is also a "state * * * board * * * created by * * * statute”. (Emphasis supplied.) This is a question of first impression.
The licensing board is part of a uniform statewide system created by the state to control and regulate the possession of firearms. County licensing boards are not created under county governmental authority and are not subject to county control. The statute creating the licensing boards indicates substantial state involvement: (1) Each board must adhere to a comprehensive scheme of state-imposed rules; (2) a representative of the director of the Department of State Police is a member of each board; and (3) the state police check fingerprints of applicants and provide license forms.
The regulation of firearms is within the state’s police power. See, e.g., Bay County Concealed Weapons Licensing Board v Gasta, 96 Mich App 784, 788; 293 NW2d 707 (1980):
"The existence of the Concealed Weapons Licensing Board reflects the state’s legitimate interest in limiting public access to weapons * * *.”
Although the Michigan courts have not had occasion to deal with this question, other jurisdictions have addressed analogous issues. For example, the Washington Supreme Court, in holding that municipal housing authorities were excluded from the Washington Administrative Procedures Act, stated:
"We believe the legislature meant what it said when it defined 'agency’ * * * for the purpose of [the Washington Administrative Procedures Act] as 'any state board * * *.’ The legislature did not intend this definition to include local agencies * * * that are not concerned with statewide programs or that are not part of a statewide system.” Riggins v Housing Authority of Seattle, 87 Wash 2d 97, 100-101; 549 P2d 480 (1976). See Revised Code of Washington 34.04.010 et seq. (Emphasis supplied.)
The Michigan concealed weapon licensing boards administer a statewide program and are part of a statewide system. The Legislature has indicated its intent to include the boards within the APA definition of an "agency”. Accordingly, we hold that the defendant licensing board must comply with the requirements of the APA.
Since we have concluded that the plaintiff is entitled to the procedural protections of the APA, we need not decide whether similar procedural rights are mandated by the Due Process Clauses of the United States Constitution and the Michigan Constitution.
The licensing board failed to comply with two provisions of the APA. First of all, the APA provides detailed requirements for final orders of "agencies”:
"A final decision or order of an agency in a contested case shall be made within a reasonable period, in writing or stated in the record and shall include findings of fact and conclusions of law. Findings of fact shall be based exclusively on the evidence and on matters officially noticed. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting them. If a party submits proposed findings of fact which would control the decision or order, the decision or order shall include a ruling upon each proposed finding. Each conclusion of law shall be supported by authority or reasoned opinion.” MCL 24.285; MSA 3.560(185).
The licensing board’s final decision to revoke plaintiff’s license was clearly deficient under the statute, since it did not include "findings of fact” or a "statement of * * * underlying facts”. The board’s decision consisted entirely of the statement "cancelled-improper use of license”.
The board also violated § 82 of the APA, which provides in part:
"Unless required for disposition of an ex parte matter authorized by law, a member or employee of an agency assigned to make a decision or to make findings of fact and conclusions of law in a contested case shall not communicate, directly or indirectly, in connection with any issue of fact, with any person or party, nor, in connection with any issue of law, with any party or his representative, except on notice and opportunity for all parties to participate. This prohibition begins at the time of the notice of hearing.” MCL 24.282; MSA 3.560(182).
Plaintiffs hearing before the licensing board convened on September 21, 1979. After plaintiff and his employer finished their testimony, the hearing was adjourned until October 9, 1979, in order to permit the state trooper to testify before the board. In the intervening period, board members discussed the case with the state trooper, telling him "the essence of what transpired” at the earlier hearing.
Clearly, the board’s conduct amounted to communication "in connection with any issue of fact, with any person”, which is proscribed by the APA. However, the licensing board makes two arguments against affording plaintiff a remedy for this violation. First, the board argues that since it must perform both investigative and adjudicative functions, and since it has no investigative staff other than the police, "some limited degree of contact with prospective witnesses is necessary” if the board is "to function at all”. We believe such a "rule of reason” approach is unnecessary, since the Legislature has accommodated the licensing board’s need to communicate with witnesses by allowing communication prior to notice of hearing. MCL 24.282; MSA 3.560(182). Second, the board argues that improper contact with a witness does not require reversal absent an affirmative showing of prejudice. This issue requires a more lengthy analysis.
In enacting the APA "witness communication” provision the Legislature intended to combat two distinct evils. First of all, the Legislature intended to ensure the impartiality of administrative tribunals acting in an adjudicative capacity. Secondly, the Legislature intended to preserve the integrity of administrative proceedings by removing opportunities to aid witnesses in tailoring their testimony and thus permanently impairing an adverse party’s chances of obtaining a fair hearing.
Even where no prejudice is demonstrated, the proper remedy for a violation of the APA "witness communication” provision is a new hearing before a tribunal untainted by improper witness contacts. We believe that such conduct by an administrative tribunal raises a substantial possibility that it is unable to discharge its adjudicative responsibilities in an impartial manner. It is therefore inappropriate to require an affirmative showing of prejudice; the appearance of impropriety should be sufficient.
We therefore remand this case to the circuit court to supervise the appointment of a temporary licensing board for the purpose of conducting a new hearing on the question of whether plaintiff has violated the restrictions of his concealed weapon license. Since this temporary board is to function only in an adjudicative capacity, we direct the circuit court to ensure that the temporary appointees have not previously communicated with members of the defendant licensing board or any other person in reference to plaintiff’s case. In addition, the circuit court is directed to ensure that no such communication takes place prior to a final decision by the temporary board. If it is not possible to assemble such a board, the circuit court is directed to conduct the violation-of-restrictions hearing on its own.
In order to prevent any possible prejudice flowing from the original circuit court judge’s awareness of evidence which may be inadmissible at subsequent hearings, we direct the assignment of a different judge on remand. In so doing, we intimate no finding of prejudice on the part of the original judge.
Since two additional issues are likely to arise in the course of subsequent hearings, it is important to address them at this time. First of all, plaintiff argues that future testimony from the state trooper will be so tainted by the licensing board’s interference that it must be "disregarded” on the ground that either due process or the APA requires its exclusion.
We do not believe that either due process or the APA requires, absent a showing of prejudice, the permanent disqualification of a witness who has been improperly contacted by the licensing board, and plaintiff has cited no authority in support of this novel proposition. The board functions in both an investigative and an adjudicative capacity and therefore is permitted to contact witnesses while acting in an investigative role, prior to notice of hearing. MCL 24.282; MSA 3.560(182). On remand, however, if plaintiff can demonstrate to the satisfaction of the circuit court that the licensing board’s "improper communication” has permanently impaired his ability to receive a fair hearing, the state trooper must be disqualified as a witness. Even if plaintiff fails to establish prejudice, the trier of fact may consider the board’s improper communications in assessing the credibility of the state trooper’s testimony.
One additional issue merits consideration at this time. At his hearing before the licensing board, plaintiff sought to establish that he was carrying a large amount of cash to be delivered the next day to his employer when stopped by the state trooper. At the time, plaintiff was returning from a horse show near Lapeer which he had attended "for his own amusement”. The circuit court apparently felt that even if plaintiffs version of the facts were accepted, revocation of his license would still be justified, on the ground that plaintiffs conduct was beyond the authority of a weapon license restricted to "business, home and bank”. We disagree. "Business” is a broad term, and an employee carrying a weapon to protect cash to be delivered to his employer is surely on "business”. The licensing board is free to place restrictions on weapon licenses which would make it clear that such conduct is unauthorized, but they have not done so in the present case.
Since the licensing board failed to comply with the APA in revoking plaintiffs license, we order its immediate restoration under the prior restrictions until the conclusion of future proceedings in accordance with this opinion.
Reversed and remanded for further proceedings in Wayne County Circuit Court. We retain no further jurisdiction. | [
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Per Curiam.
This is an appeal from a Michigan State Tax Tribunal dismissal of the appellant’s petition for review of personal property tax assessments.
In 1970, Donald J. Smith and Richard Smith formed a partnership known as Dick & Don’s Greenhouses for the purpose of conducting a greenhouse business. In 1972, the two partners also formed a corporation named Dick & Don’s Greenhouses, Inc, (petitioner), with each partner owning 50% of the stock of the corporation. The partnership remained in existence and owned real estate and the buildings thereon. It leased both to the corporation, which operated the business.
In 1976, the partnership sold the greenhouses and other improvements to the corporation, retaining ownership of the underlying land, which it leased to the corporation. The corporation subsequently constructed additional greenhouses on the leased real estate.
In December, 1978, respondent issued a notice of assessed value to the partnership, which covered the value of the greenhouses and other buildings which had been sold to the corporation. In March, 1979, after the partnership appeared before the board of review, the township reduced the partnership’s assessed valuation to reflect the land value only and assessed the value of the greenhouses and other buildings situated upon the leased real estate as personal property of the corporation. The assessment was at a total value of $64,100.
Petitioner’s theory is that it owns buildings upon the leased land of another, which buildings are "personal property” pursuant to MCL 211.8(d); MSA 7.8(d), and that as personal property "actually being used in agricultural operations”, it is exempt from taxation pursuant to MCL 211.9(j); MSA 7.9(j). The petitioner admits that the buildings are permanently affixed to the underlying realty.
The issue is whether MCL 211.8(d); MSA 7.8(d) and MCL 211.9(j); MSA 7.9(j) apply to a situation where, as in this case, title to the buildings is severed. The Michigan State Tax Tribunal ruled that these sections do not establish an exemption under the circumstances of this case.
"This Court’s authority to review a decision of the Tax Tribunal is very limited. On appeal, we are bound by the factual determinations of the tribunal. Ironwood v Gogebic County Board of Comm’rs, 84 Mich App 464, 469; 269 NW2d 642 (1978). Where, as here, no fraud is alleged, our review is limited to the question of whether the tribunal committed an error of law of [sic] adopted a wrong principle. Consolidated Aluminum Corp, Inc v Richmond Twp, 88 Mich App 229, 231; 276 NW2d 566 (1979), Const 1963, art 6, § 28.
"For the purpose of taxation, real property includes 'all lands within the state, and all buildings and fixtures thereon’. MCL 211.2; MSA 7.2.” Michigan National Bank, Lansing v City of Lansing, 96 Mich App 551, 553; 293 NW2d 626 (1980). See also Detroit v Norman Allan & Co, 107 Mich App 186, 189; 309 NW2d 198 (1981).
The tests to be applied to ascertain whether property is real property or personal property are:
"(1) Annexation to the realty, either actual or constructive;
"(2) Adaptation or application to the use or purpose of that part of the realty to which it is connected or appropriated; and
"(3) Intention to make the article a permanent accession to the realty.. Morris v Alexander, 208 Mich 387; 175 NW 264 (1919), Peninsular Stove Co v Young, 247 Mich 580; 226 NW 225 (1929). The intention which controls is that manifested by the objective, visible facts. The permanence required is not equated with perpetuity. It is sufficient if the item is intended to remain where affixed until worn out, until the purpose to which the realty is devoted is accomplished or until the item is superseded by another item more suitable for the purpose.” Michigan National Bank, Lansing, City of Lansing, supra, 554. See San Diego Trust & Savings Bank v San Diego County, 16 Cal 2d 142; 105 P2d 94 (1940). See also Sequist v Fabiano, 274 Mich 643; 265 NW 488 (1936), Jackson Lodge No 113, BPOE v Camp, 303 Mich 370; 6 NW2d 549 (1942).
The pole barns and greenhouses which are the subject of this case are clearly real property.
What, then, was the legislative intent in passage of MCL 211.8(d); MSA 7.8(d)?
The statute provides in part:
"Sec. 8. For the purposes of taxation, personal property shall include:
"(a) All goods, chattels and effects within the state.
"(b) All goods, chattels and effects belonging to inhabitants of this state, located without this state, except that property actually and permanently invested in business in another state shall not be included.
"(c) All interests owned by individuals in lands, the fee of which is in this state or the United States, except as otherwise provided in this act.
"(d) All buildings and improvements located upon leased lands, except where the value of the real property is also assessed to the lessee or owner of those buildings and improvements.
"(e) Tombs or vaults built within any burial grounds, and kept for hire or rent, in whole or in part, and the stock of a corporation or association owning the tombs, vaults, or burial grounds.
"(f) All other personal property not enumerated in this section, and not especially exempted by law.”
The obvious purpose of the Legislature in the enactment of the above statute was to reach for taxation buildings erected on leased lands, such as airports, federal and state lands or any other lands where title to the underlying properties remains in the owners and the use is granted by, usually, long-term ground leases. The purpose of this statute is not to define what is personal property.
Section 9 of the statute provides, in pertinent part:
"Sec. 9. The following personal property shall be exempt from taxation:
"(j) Property actually being used in agricultural operations and the farm implements held for sale or resale by retail servicing dealers for use in agricultural production. As used in this subdivision, 'agricultural operations’ means farming in all its branches, including cultivation of the soil, growing and harvesting of an agricultural, horticultural, or floricultural commodity, dairying, raising of livestock, bees, fur-bearing animals, poultry, or fish, turf and tree farming, and any practices performed by a farmer or on a farm as an incident to, or in conjunction with, farming operations.”
The respondent admits that the use of the buildings in question here is for agricultural purposes.
It has long been the law of Michigan that exemption statutes are to be strictly construed in favor of the taxing unit. Ladies Literary Club v Grand Rapids, 409 Mich 748, 753; 298 NW2d 422 (1980) , Kalamazoo Nature Center, Inc v Cooper Twp, 104 Mich App 657, 664; 305 NW2d 283 (1981), Circle Pines Center v Orangeville Twp, 103 Mich App 593, 597; 302 NW2d 917 (1981).
"[S]ince taxation is the rule, and exemption the exception, the intention to make an exemption ought to be expressed in clear and unambiguous terms; it cannot be taken to have been intended when the language of the statute on which it depends is doubtful or uncertain; and the burden of establishing it is upon him who claims it. Moreover, if an exemption is found to exist, it must not be enlarged by construction, since the reasonable presumption is that the State has granted in express terms all it intended to grant at all, and that unless the privilege is limited to the very terms of the statute the favor would be extended beyond what was meant.” 2 Cooley, Taxation (4th ed), § 672, p 1403. See Detroit v Detroit Commercial College, 322 Mich 142; 33 NW2d 737 (1948). See also Ladies Literary Club v Grand Rapids, supra.
There is nothing in either MCL 211.8; MSA 7.8 or MCL 211.9(j); MSA 7.9(j) which indicates a thought on the part of the Legislature that these paragraphs be construed together. Had the Legislature seen fit to set up an exemption for buildings affixed to leased property, it would have done so in express terms.
The Legislature’s intention to grant exemption from taxation will never be implied from statutory language which will admit of any other reasonable construction, but must be expressed in unmistakable terms or appear by necessary implication from the language used. Detroit v Detroit Commercial College, supra, 148-149.
It would be a strained construction of the acts here discussed if we were to find that separately owned buildings on leased land used for agricultural purposes were exempt entirely from taxation and that the neighbor next door, because he owned the land and buildings, would be subject to tax at competitive disadvantage.
The reasonable construction is that buildings on leased land could be taxed separately as personal property for taxation purposes, but for agricultural exemption purposes the Legislature intended to exempt only common-law personal property. The intent of the Legislature was to give farmers generally relief from taxation of their farm property tools and equipment, but it did not give the same relief on buildings. We should not extend that relief to buildings on leased land by straining the law as petitioner urges.
Because of our resolution of this issue, it is unnecessary to address the other issues raised by appellant and the alternative justification advanced by the tribunal in support of its decision.
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Per Curiam.
Plaintiff appeals by leave granted, from an order entered by the Wayne County Circuit Court denying its motion for summary judgment.
Pyramid Riggers, Inc., was an employer during the years 1975 and 1976. Plaintiff alleged that defendants failed to forward withholding taxes to the State of Michigan, as required by MCL 206.351(3); MSA 7.557(1351)(3), for the months of July, September and October of 1975, and January through September of 1976. On February 3, 1977, plaintiff issued assessment notices to the individual defendants, Robert Sperandeo and Leon Watson, alleged to be corporate officers of Pyramid Riggers. Neither individual defendant contested these assessments, sought administrative or judicial review of them, nor took any other action concerning the assessment.
On July 31, 1978, plaintiff filed this complaint in circuit court, alleging that the two individual defendants and the corporate defendant were jointly and severally liable for the unpaid withholding taxes.
Plaintiff filed a motion for summary judgment contending that since the assessments were not contested to either the State Board of Tax Appeals (SBTA) or the circuit court, the assessments became final and defendants were precluded from contesting them. The trial court denied the motion, apparently on the basis that there was confusion over whether the SBTA in fact continued to exist despite its purported abolishment by statute.
On appeal, the parties concern themselves only with the issue of the existence vel non of the SBTA and the appropriate application of the doctrine of exhaustion of administrative remedies to the defendants in the present case. We conclude that summary judgment was properly denied under both GCR 1963, 117.2(2) and (3) on the basis that defendants may not be personally liable for withholding taxes in their capacity as corporate officers.
In Queen Airmotive, Inc v Dep’t of Treasury, 105 Mich App 231; 306 NW2d 461 (1981), this Court addressed the issue of the current status of the SBTA. MCL 205.779(3); MSA 7.650(79)(3) purportedly required all cases previously appealable to the SBTA to be appealed to the State Tax Tribunal after December 31, 1976. The assessments in the present case were issued in February, 1977. The SBTA, however, in fact continued to function, as the Legislature continued to enact subsequent statutes inconsistent with the intent to abolish the SBTA. Most recently, 1980 PA 162 again formally abolished the SBTA, effective December 31, 1981. In Queen Airmotive, this Court concluded that the existence and jurisdiction of the SBTA continued despite its purported abolishment in MCL 205.779. Since the SBTA, then, was the proper forum for appealing the withholding tax assessment in the present case, we must examine the appeal procedures.
MCL 206.421(3); MSA 7.557(1421) provides:
"(3) Any taxpayer aggrieved by any determination of tax liability made by the department may appeal to the state board of tax appeals under the provisions of Act No. 122 of the Public Acts of 1941, as amended, being sections 205.1 to 205.17 of the Compiled Laws of 1948, or after payment of the amount of the tax, interest and penalties found to be due by the department, he may bring an action in the circuit court of the county of Ingham to recover the amount paid. The action shall be commenced within 6 months after payment of the tax or after the adverse determination by the department of the validity of the taxpayer’s claim for refund, whichever occurs later, and shall be conducted in accordance with the statutes and rules of procedure concerning actions at law not inconsistent with the provisions of this act.”
MCL 205.7; MSA 7.657(7) provides in pertinent part:
"Any person, firm or corporation aggrieved by any assessment, decision, or order of the department of revenue may pursue any appropriate procedure provided by law for the judicial review of the issues involved or have an appeal from such assessment, decision or order to the state board of tax appeals hereby created at any time within 30 days after such assessment, decision or order.”
The "any appropriate procedure provided by law” involves three possibilities as described in Craig v Detroit Police Dep't, 49 Mich App 599; 212 NW2d 235 (1973), rev’d on other grounds 397 Mich 185; 243 NW2d 236 (1976). In Craig, the Court determined that:
"The question of what is an appropriate course to pursue does not appear to have been answered by the courts of this state. We believe that the following alternatives would be available: (1) suit in the Court of Claims which generally has exclusive jurisdiction of claims against state agencies; (2) an action for mandamus directed to state officers commenced in the Court of Appeals after appropriate petitions before proper administrative officers have been rejected; (3) complaint filed in circuit court alleging unconstitutionality of a statute on its face, Asta v Dep’t of Revenue, 338 Mich 505; 61 NW2d 608 (1953).” (Footnotes omitted.) Craig, supra, 602.
See also Campbell v Dep’t of Treasury, 77 Mich App 435; 258 NW2d 508 (1977).
In addition to the procedures outlined in Craig, defendants could have appealed the assessment to the SBTA within 30 days, or paid the tax and brought a refund action in the circuit court. There is no evidence in the present case that defendants followed any of the statutory appeal procedures. Once the SBTA makes a decision, a further appeal is provided for in MCL 205,9; MSA 7.567(9), which provides in pertinent part:
"Any tax found due from appellant to the state of Michigan by the state board of tax appeals shall be payable within 30 days after the decision of said board. The appellant may, within said period, pay the said tax under protest and within 30 days following such payment file claim for the recovery thereof in the court of claims of this state. In said court of claims trial shall be de novo.”
There is similarly no evidence that defendants followed this appeal procedure. Thus, while it is clear that an appeal to the SBTA was not the exclusive remedy available to defendants, the record does not indicate that defendants followed any of the other available appeal procedures.
Plaintiff now contends, therefore, that defendants are precluded from contesting the assessments under the doctrine of exhaustion of administrative remedies. That doctrine, however, which provides that there may be no resort to the courts until appropriate administrative remedies are exhausted (see Attorney General v Diamond Mortgage Corp, 102 Mich App 322, 326; 301 NW2d 523 [1980]), is inapplicable to the present defendants because they have not initially sought relief in the courts. Plaintiff instituted the present suit. Defendants, therefore, are not seeking redress from an adverse agency determination but are merely attempting to defend a civil action brought by plaintiff. Since the doctrine is inapplicable, defendants may assert any appropriate defenses.
A possible defense may be that defendants cannot be held personally liable in their corporate officer capacity for not withholding taxes. The assessments were issued under MCL 206.351(1); MSA 7.557(1351)(1) which provided that every "employer” shall withhold employment taxes. The definition of "employer”, MCL 206.8(3); MSA 7.557(108X3), requires reference to the Internal Revenue. Code. It appears that under §§ 340.1(c) and (d) of the IRC, a corporate officer is an "employee” and, therefore, cannot be an "employer”. Since only employers are required to withhold taxes, it appears that individual corporate officers cannot be personally liable for the withholding taxes. See also Detroit v Detroit Gray Iron & Steel Foundries, Inc, 89 Mich App 108; 279 NW2d 332 (1979).
We conclude, therefore, that since defendants have denied personal liability a valid defense may exist. GCR 1963, 117.2(2). Whether defendants are able to prove that defense requires a factual determination by the trial court. Additionally, defendant Watson neither admitted nor denied that he was, in fact, a corporate officer, thereby raising a further factual question. Denial of plaintiffs motion for summary judgment was proper.
Affirmed.
No costs, statutory interpretation being involved. | [
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Per Curiam.
Defendant pled guilty to possession of heroin, MCL 333.7403; MSA 14.15(7403), and possession of a firearm during the commission of that felony, MCL 750.227b; MSA 28.424(2). In accordance with the plea and sentence bargain, defendant was sentenced to the mandatory two years on the felony-firearm count and from one to four years on the possession of heroin count, and the sentence on the possession of heroin count was suspended. At the time of sentencing, defendant wished to withdraw his pleas. The trial court denied the motion to withdraw the pleas and sentenced defendant according to the bargain.
The defendant appeals claiming that denial of the motion to withdraw the pleas was error. There is no right to withdraw a guilty plea once it is accepted. People v Bentley, 94 Mich App 19; 287 NW2d 355 (1979). However, such requests to withdraw a plea, when offered prior to sentencing, are to be treated with great liberality. People v Hale, 99 Mich App 177; 297 NW2d 609 (1980). In People v Bencheck, 360 Mich 430, 433; 104 NW2d 191 (1960), the Supreme Court stated:
"Where, as here, a defense of innocence is asserted at the time of a request to withdraw the plea, and the request is not obviously frivolous and is made before commencement of trial and before sentence, the plea should be granted.”
The defendant in this case asserted his innocence and claimed he had a meritorious defense.
The critical issue herein is whether the request was obviously frivolous. To make this determination, we focus on the defendant’s "meritorious defense”. At the sentencing, defense counsel argued that he had two witnesses available who would testify that defendant did not possess a firearm at the time of his arrest. Therefore, he argued defendant could not be guilty of felony-firearm. Defense counsel stated that he was ready for trial at any time. The trial court, in passing on the motion, stated, "the grounds for the motion to withdraw, not having been more specific in the grounds, specific grounds outside of indicating that the defendant is not guilty, has a meritorious defense, is not sufficient for the Court to make a determination that the defendant should be granted a new trial”. The prosecutor and defense counsel, prior to the court’s proclamation, had properly stated the law in this area.
We conclude that the defendant’s claim of innocence is not obviously frivolous even though more specificity on the part of defense counsel in. presenting that claim was desirable. Defendants must be aware that once they have voluntarily pleaded to the possession of a firearm in the commission or attempt to commit a felony, a bald assertion of innocence seems obviously frivolous. The assertion in this case was specific enough so that a trial court treating the request with great liberality should have granted the motion.
Reversed to allow defendant an opportunity to withdraw his plea. | [
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Per Curiam.
Defendant was convicted by jury of carrying a concealed weapon, MCL 750.227; MSA 28.424. Prior to sentencing, defendant was charged with violation of the habitual offender statute, MCL 769.10; MSA 28.1082, for a third offense. At this time, defendant pled guilty to violation of the habitual offender statute for a second offense. He was thereupon sentenced to serve a minimum of 2-1/2 years to a maximum of 7-1/2 years in prison and appeals as of right.
Defendant was arrested during a raid on a pool hall in Saginaw which was prompted by reports to the police of illegal gambling on the premises. A police officer testified that when he announced the arrest, defendant, whose back was turned, reached into his "waistband area”, removed a revolver by the butt, and dropped it to the floor.
Defendant testified in his own defense and denied being in possession of a weapon that night.
During the course of deliberations, the jury reported that it was "hung” on the concealed weapon charge. The court reinstructed the jury on the process of reaching a verdict, on the charges and the information, and on the elements of the concealed weapon charge. Defendant raises three issues on appeal.
I
Defendant first contends that the trial court committed error requiring reversal in instructing the deadlocked jurors that, if they did not reach a verdict, it would be the duty of another jury no more intelligent and no more informed than they to decide the case. Defendant argues that this instruction constituted error because it was unlawfully coercive in light of the Supreme Court’s holding in People v Sullivan, 392 Mich 324; 220 NW2d 441 (1974), and cases which have followed it.
In arguing that the trial court’s instructions to the deadlocked jury coerced the jury into returning a guilty verdict, defendant applied the wrong standard, ignoring the proper "substantial departure” from ABA standard jury instruction 5.4 mandated by the Supreme Court in Sullivan.
In Sullivan, the Supreme Court thoroughly discussed the subject of the supplemental Allen charge, the instruction to a deadlocked jury, so- called because the instruction received the approval of the United States Supreme Court in Allen v United States, 164 US 492; 17 S Ct 154; 41 L Ed 528 (1896).
The Sullivan Court found that there was an inherent danger in the possibility that the Allen charge may be worded coercively and so applied in some cases. To eliminate this danger of coercive effect, the Court ruled that from the date of the Sullivan opinion ABA jury standard 5.4 would be adopted as the deadlocked jury instruction and that any substantial departure therefrom shall be grounds for error requiring reversal. Sullivan, supra, 341.
The ABA jury standard 5.4, adopted by the Sullivan Court, reads as follows:
"Length of deliberations; deadlocked jury.
"(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
"(i) that in order to return a verdict, each juror must agree thereto;
"(ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
"(iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;
"(iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and
"(v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.
"(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
"(c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.” Id., 335.
There has been some confusion as to the application of this standard. In People v Harman, 98 Mich App 541, 543; 296 NW2d 303 (1980), a panel of this Court, in a per curiam opinion, declared that Sullivan stated that a claim of coercion must be determined on a case-by-case basis. The Court went on to apply a coercion analysis and conceded that the facts of Harman did not indicate that the jury was coerced by the "hung jury” instructions. In alleging jury coercion in the instant case, defendant has urged this Court to adopt the Harman reading of Sullivan.
In a more recent decision, this Court declared that the other decisions of the Court of Appeals which have suggested that deadlocked jury instructions given in post-Sullivan trials are to be examined on a case-by-case basis for their coercive effect, Harman being among them, were wrongly decided. People v Allen, 102 Mich App 655, 659; 302 NW2d 268 (1981). The Allen panel reasoned that the Supreme Court in Sullivan intended to announce a prophylactic rule eliminating the necessity of future appellate inquiry into the coercive effect of any number of possible variants on the Allen charge. One form was approved, the ABA instruction 5.4, which was to be the only instruction used in the future. Because the rule was made prospective, Allen-type charges in trials occurring before Sullivan were still subject to a case-by-case coercion analysis, but the only case-by-case inquiry necessary in trials taking place after Sullivan would involve whether the instruction given was a "substantial departure” from the ABA charge. Id., 659.
This reasoning is consistent with a post-Sullivan holding in People v Dupie, 395 Mich 483, 493; 236 NW2d 494 (1975). There the Court, faced with resolution of a deadlocked jury instruction in a pre-Sullivan case, stated that where the propriety of a pre-Sullivan supplemental instruction is to be decided the Sullivan Court had indicated that the presence or absence of coercion would be determined on a case-by-case basis but that the prospectively adopted ABA jury standard 5.4 would cover the circumstance of supplemental Allen charges arising after the decision in Sullivan.
We conclude that People v Allen, supra, correctly decided that the proper standard for determining the propriety of post-Sullivan deadlocked jury instructions is the "substantial departure” test articulated in Sullivan and in Dupie and not the coercion standard urged by defendant and improperly applied in Harman.
Therefore, because the trial in the instant case occurred after the Sullivan opinion, a determination of this issue properly involves whether the trial court’s instructions to the jury substantially departed from the ABA jury instruction 5.4 mandated by Sullivan. A review of the record indicates that such a departure did not occur.
In his charge to the jury, given before the jury departed to deliberate, the trial judge gave the ABA standard jury instruction 5.4 almost verbatim. According to the ABA standard instruction, after the jury has heard the instruction and has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction previously given. In the instant case, the trial court chose not to reinstruct on the entire 5.4 instruction but only reminded the jury to reexamine the questions with proper regard and consideration for the opinions of the other jurors, to keep an open mind to the other arguments in points of view, and to make every reasonable effort to reach a verdict. The reinstructions indicate that the trial court was more concerned with attempting to facilitate a solution to the problems of the jury by rereading the information, by reinstructing on the elements of the charged crime, and by answering specific questions of the jurors.
Mention by the trial court of the jury’s quality and fitness relative to another jury does not negate the instructions on proper deliberation, impartial consideration, and adherence to honest conviction which are at the heart of the ABA standard instruction. The trial court’s mention of another jury did not suggest that the present jury should take a different approach in their deliberations nor did it weaken the effect of the previous ABA standard instruction on the jury. Therefore, we hold that the court’s mention of the possibility of a successor jury was not a departure from the proper instruction mandated in Sullivan and given by the trial court in the instant case, and, thus, no error arose as a result of these comments. The error which occurred in People v Goldsmith, 411 Mich 555; 309 NW2d 182 (1981), is certainly not present here, and we find that the trial court’s instructions were not coercive.
Plaintiff also argues that this issue has not been preserved on appeal because defendant failed to object to the instruction at trial. The same argu ment was posed in Goldsmith. Despite a failure to object, the issue still involves whether the error requires reversal.
II
The second issue raised is whether the prosecutor’s closing argument diverted the jury’s attention and possibly persuaded them of defendant’s bad character.
We find no error in the prosecutor’s remarks. Evidence of defendant’s prior conviction was properly admitted under MRE 609(a) and formed the basis for the habitual offender charge in the instant case. It clearly had a bearing on defendant’s veracity and motive in denying that he had a gun in his possession at the time of the arrest and also in rejecting the testimony of the police officers as lies. This relationship between the prior.conviction and defendant’s present veracity provides the purpose for the prosecutor’s mention of the conviction in his closing argument. In addition, because no objection to these remarks was raised during trial, they do not warrant reversal unless they are found to constitute manifest injustice. People v Duncan, 402 Mich 1, 15-16; 260 NW2d 58 (1977), People v McCain, 84 Mich App 210, 215; 269 NW2d 528 (1978). We find no evidence of manifest injustice inherent in the inclusion of evidence of the prior conviction where the issue is clearly one of credibility between defendant and the officer-witnesses, where the evidence was admitted for the proper purpose of impeachment, and where the evidence provides insight into the defendant’s motive for testifying as he did. Furthermore, the trial court instructed the jurors that they were to disregard anything said by an attorney not supported by the evidence or by their own general knowledge and experience. The jurors thus knew that they were free ito accept or reject the inferences raised by the prosecutor’s argument. See People v Lyle Brown, 37 Mich App 25, 30; 194 NW2d 450 (1971).
Defendant’s allegation that the prosecutor personally vouched for the veracity of the officers who testified during trial is without merit because the prosecutor’s remarks were made in response to defense counsel’s accusation in his opening statement that the officer-witnesses who would offer testimony against defendant were not telling the truth. People v Giombetti, 97 Mich App 399, 405; 296 NW2d 41 (1980), see also Duncan, supra, 16, People v Green, 34 Mich App 149; 190 NW2d 686 (1971), lv den 386 Mich 769 (1971).
Defendant further maintains that the prosecutor’s reference to the fact that defendant was arrested during a gambling raid and that people were gambling at the scene amounts to error requiring reversal because it put defendant into a bad light before the jury since defendant was not on trial for gambling.
We must reject this claim. A prosecuting attorney has the right to draw inferences for the jury from the facts appearing in the record. People v Morlock, 233 Mich 284, 286; 206 NW 538 (1925), People v Caldwell, 78 Mich App 690, 692; 261 NW2d 1 (1977). Not only may the prosecutor draw inferences, but he also may comment upon the testimony in the case. People v Cona, 180 Mich 641; 147 NW 525 (1914), Caldwell, supra, 692.
The record reveals that defense counsel, in his opening statement, informed the jury that people, including defendant, were "probably” gambling at the place and time of defendant’s arrest. Furthermore, defendant admitted that he was holding a pair of dice when he was arrested. The circumstances involving defendant’s arrest, a raid on a suspected gambling establishment and the arrest of suspected participants engaging in the gambling activities, were inextricably connected with the charges against defendant in the present case and, thus, were properly placed before the jury and mentioned by the prosecutor during his closing argument.
Ill
Defendant’s third allegation of error, that he was improperly arraigned on the information, is without merit.
That a defendant may intentionally relinquish his procedural right to an arraignment through his attorney has been established in People v Phillips, 383 Mich 464, 470; 175 NW2d 740 (1970), following Fay v Noia, 372 US 391; 83 S Ct 822; 9 L Ed 2d 837 (1962). Necessary to a proper relinquishment, because it is voluntary, is a determination that the person had a right to arraignment, knew he had the right, and freely and knowingly elected not to exercise it. Phillips, supra, 470. At the scheduled arraignment in the instant case, it was discovered that defendant was in Jackson prison for a parole violation hearing. The court determined that it would reschedule the arraignment but was persuaded by defense counsel, who acknowledged being in possession of a copy of both the original information and the supplemental information, to accept a filing of a waiver of arraignment pursuant to the court rule and that that filing would serve as arraignment. This "record of arraignment on information” form indicated that defendant and his attorney waived formal arraignment, that the purpose of the information and the waiver had been explained to defendant, and that the document had been signed by both defendant and his attorney.
Under these circumstances, where defense counsel initiated the waiver procedure, where the waiver was accomplished according to procedures set forth in the court rule, where there was no indication that defendant did not understand his right to arraignment, and where defendant elected to follow his attorney’s decision to waive the arraignment, we find that defendant’s waiver was freely and knowingly executed and was proper according to GCR 1963, 785.5(2). See also Phillips, supra, 471.
Defendant’s conviction is affirmed.
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Per Curiam.
Defendant was charged with possession of a gas-ejecting device, MCL 750.224; MSA 28.421. At the close of proofs in a nonjury trial, the trial judge sua sponte dismissed the case on the ground that the statute under which defendant was charged was vague and overbroad. The people appeal by right.
In holding that the statute prohibiting possession of a gas-ejecting device was unconstitutionally vague and overbroad, the trial court relied upon People v Guy, 84 Mich App 610; 270 NW2d 662 (1978). However, recently in People v Lynch, 410 Mich 343; 301 NW2d 796 (1981), the Court held that the statute clearly covered gas-ejecting weapons. Since Lynch’s statements at his guilty-plea hearing clearly indicated that the device he was carrying was a weapon, Lynch did not have standing to assert that the statute was overbroad because it reached innocent gas-ejecting devices. Id., 352.
Lynch requires reversal and a new trial here. On remand, defendant shall not be convicted unless the finder of fact determines that he was carrying a gas-ejecting weapon.
Defendant argues that retrial here is barred by the constitutional prohibition of double jeopardy. However, double jeopardy does not prevent retrial where defendant voluntarily obtains termination of his first trial on grounds unrelated to his factual guilt or innocence. See United States v Scott, 437 US 82; 98 S Ct 2187; 57 L Ed 2d 65 (1978). The overbreadth or vagueness of the statute here had nothing to do with defendant’s factual guilt or innocence of the crime charged. Defendant’s consent to the dismissal was manifested through counsel. We adhere to the position taken by the majority in People v Hoffman, 81 Mich App 288; 265 NW2d 94 (1978), and People v Blackburn, 94 Mich App 711; 290 NW2d 61 (1980), that defendant need not personally manifest his consent.
Reversed and remanded for further proceedings in accordance with this opinion. | [
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Per Curiam.
On September 20, 1979, the personal representative of the estate of Blanche M. Bollman, deceased, filed a petition for a final determination of inheritance taxes in the St. Joseph County Probate Court. Evidence was introduced and arguments made at the hearing held on the petition. On December 3, 1979, the probate court entered an order making a final determination of inheritance taxes.
After the conclusion of negotiations with the Internal Revenue Service concerning costs and expenses of administration of the estate, the personal representative filed another petition for final determination of inheritance taxes on March 9, 1981. On March 16, 1981, the probate court entered an order dismissing this second petition on the ground that it was an untimely petition for rehearing of the 1979 order determining inheritance taxes.
The personal representative then timely filed with this Court a claim of appeal from the order dismissing the second petition for a final determination of inheritance taxes, pursuant to MCL 600.861; MSA 27A.861, which provides, inter alia, that a party to a proceeding in the probate court may appeal as a matter of right to the Court of Appeals from a "final order affecting the rights or interests of any interested person in an estate or trust”. Since the order in question was entered in a decedent’s estate, the issue is whether or not the order here involved was a "final” order and therefore appealable to this Court rather than the circuit court. The parties have filed separate briefs on the question of this Court’s jurisdiction.
The petition here involved constituted a motion for rehearing of the December 3, 1979, order determining inheritance taxes. An order denying a rehearing is not a "final” order but, rather, a post-judgment order, which, in and of itself, is appealable by leave only. In re Humphrey Estate, 107 Mich App 778; 309 NW2d 722 (1981), In re Mitros Estate, 106 Mich App 271; 307 NW2d 471 (1981). Therefore, the order appealed here is not a "final” order appealable as a matter of right to this Court under MCL 600.861; MSA 27A.861.
This appeal is therefore dismissed without prejudice to the filing of a motion for leave to appeal in the circuit court for the County of St. Joseph, pursuant to GCR 1963, 703. In the Matter of Antieau, 98 Mich App 341; 296 NW2d 254 (1980).
The appeal is dismissed. | [
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] |
To compel the issuance of land certificates upon application made before the land had been placed on sale.
Denied January 7, 1885.
Costs were denied, as the rights of intervenors cannot be passed upon. | [
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To compel respondent to return to relator, as chairman of the board of auditors of Wayne county, the books belonging to .said board, where a conflict has arisen, respecting the title to the office of county auditor, between an appointee of the^governor and one holding over because of the death of an auditor-elect, •and the sheriff had taken sides, seizing the books of the office.
Granted, wdth costs, January 23, 1891; holding that the appointee of the governor was not entitled to the office, and that, although title to office will not usually be settled in mandamus proceedings, where a person in office de jure and de facto is interfered with by one whose lack of title is plain under adjudicated ■cases in our own courts, it is proper and best to settle the question by mandamus. | [
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] |
To compel respondent to re-convene and direct the issuance to him of a certificate of election as county clerk.
Granted February 3, 1893, without costs. | [
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To set aside a verdict and grant a new trial for misconduct of the jury.
Granted April 29, 1885.
"Where is was shown that a jury not only sent for and obtained and drank intoxicating liquors in the jury room, and when taken to a hotel for their meals conversed with persons, made known how they stood'prior to agreement, openly discussing the fact; inquired of the stenographer as to the outside sentiment respecting the case, and drank whisky and other liquors at the bar two or three times at the invitation of the landlord, and each other, a trial judge is not competent to decide that the verdict was not thereby affected, and if he refuses to set aside the verdict on the ground that it was a just one, he usurps the functions of the jury. The presumption that the jurors were honest will not save the verdict. A verdict is incurably vitiated where evidence of public sentiment as to the case is allowed to reach the jury.
An order to show cause does not necessarily imply personal censure of the respondent; the review of judicial action is confined to' legal errors, and the action itself is presumably conscientious.
Ex parte affidavits, returned by a circuit judge in response to an order to show cause why he should not grant a motion, will not be received if they were not used on the motion. | [
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To compel the payment of a warrant issued by the auditor-general in favor of Houghton County.
Denied January 28, 1879.
The application showed that the warrant had been issued for a larger sum than what is claimed by the county to be really due, by a mistake of computation, and the court held, that relator should surrender the old warrant to the auditor-general and apply for a new one. | [
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] |
To compel respondent to place on the assessment roll of his township certain land alleged by relator to be within the local boundaries of said township, but claimed by the respondent to be in another township.
Denied December 28, 1889.
Held, that mandamus is inapplicable. | [
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-8
] |
To compel the removal of relator’s name from the assessment roll.
In the case of Detroit Transportation Co. vs. Board of Assessors, writ denied April 15, 1892, with costs. In each of the other cases the party was allowed to withdraw the petition.
Petitioner in each case claimed a local habitation outside the city limits, but it was held that such was its nominal domicil only, and that its actual domicil was in the city. | [
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] |
To set aside certain proceedings in attachment.
Granted February 2, 1888.
Held, that a writ of attachment does not operate as a summons, and that personal service of the writ, unless made after levy and accompanied by the statutory inventory, is insufficient to give jurisdiction over defendant. | [
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To vacate an order reqMring relators, as garnishee defendants, having in their possession, as mortgagees, certain goods and chattels, to turn over the said goods and chattels to a receiver ap pointed by tbe court, directing tbe receiver to sell, and out of tbe proceeds to pay (1) the costs and expenses of tbe receivership sale, etc., (2) relator’s lien, and (3) plaintiff’s judgment.
Granted April 20, 1884. | [
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] |
To compel respondent to proceed under Secs. 1371 to 1376, How. Stat., for the removal of alleged encroachments by abutting owners upon the highway.
Denied April 7, 1893, with costs, on the ground that it appeared from the return that the respondent, acting in good faith, had investigated the matter, and had concluded that the alleged encroaching fences had occupied substantially the same place for over 20 years, and did not encroach. | [
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To compel a re-count of the votes cast for sheriff, under Act No. 208, Laws of 1887.
Denied December 19, 1894.
Two answers were filed, one by the majority of the members of the board, and the other by the minority. The majority returned that relator had withdrawn Iris petition for a re-count, and it was held that such return must be treated as the true return in the absence of a demand for the framing of an issue. | [
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] |
To vacate a judgment as to costs, in a case where plaintiff recovered judgment in Justice Court for $248.66, and on appeal tbe judgment was reduced to $104, and costs were given to defendant.
Denied June 23, 1880, with costs.
Held, that costs in such cases are under the control of the court, and its discretion in deciding thereon will not be reviewed. | [
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] |
To compel respondent to- restore relator to membership, of -which, he had been deprived for the non-payment of a fine, different from that imposed by its by-laws, for the act complained of.
Granted April 28, 1893, with costs.
Held, that it does not lie with an association assuming to exercise corporate functions to contest its own existence in snch a case. | [
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To compel the dismissal of an appeal from Probate Court.
Granted April 7, 1893, with costs.
Held, that Act No. 174, Laws of 1887, 3 How. Stat., Sec. 6783, which requires the filing in the circuit of a certified copy of the record of proceedings appealed from, within thirty days after the appeal is taken, is mandatory. | [
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] |
To compel respondent to spread upon the assessment roll, certain drain taxes.
Order to show cause granted June 18, 1891.
On November 12, 1891, relator moved for a peremptory writ for default in not answering.
Granted Nov. 13, 1891, with costs. | [
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To compel the dismissal of an appeal from Justice Court,, taken by plaintiff in an action of replevin. Granted, without costs, December 21, 1897.
The affidavit alleged the property to be worth $150, and not. to exceed $500.
Held, that Act No. 460, L. A. 1895, does not confer upon justices of the peace of Detroit jurisdiction in replevin cases involving more than $100; that their jurisdiction in such cases is governed by the general statute. The defendant did not raise the'question before the justice, and costs were therefore denied. | [
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] |
To compel respondent to refrain from receiving and receipting for liquor taxes before the filing of the statutory bond.
Granted April 22, 1892, without costs. See Rode vs. Phelps (Co. Treas.) (1244). | [
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To compel tbe entry of a verdict rendered by the jury in a replevin case, where tbe verdict was “this jury find for tbe plaintiff” and tbe justice refused to enter tbe same, because be regarded tbe verdict as insufficient.
Granted 1843. | [
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] |
To compel respondent to proceed against petitioners for a drain, to recover expenses incurred in connection therewith.
Denied June 15, 1892, with costs.
Alder was county drain commissioner in 1888, and received an application for the construction of a drain. After he had made application to the Probate Court for the appointment of special commissioners to determine the necessity for taking private lands for the drain, his term of office expired, and the proceedings were continued by his successor. After the contracts for construction had been let and the work partially done, proceedings were instituted and further work enjoined.
Eespondent afterwards succeeded to the office and insists that no request has ever been made to him to bring such suit, and that, under Sec. 1, Chap. 3, Act No. 227, of the Laws of 1885, the drain commissioner, having determined that the drain was a necessary public improvement, the liability of the persons petitioning therefor ended. Hall vs. Palmer, 54 M., 270. | [
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] |
To compel the assessment of an amount sufficient to pay interest and principal on certain township bonds, it appearing that an assessment had been made in 1892, in conformity with the mandate of this court, for the interest and principal on bonds then matured, but that the entire amount of the levy had not been collected and relator aslcs that the unpaid balance be included in the new assessment, with other sums for interest and principal since maturing.
Granted as to the since accuring interest and since maturing principal, but denied as to amount embraced in the former assessment, November 15,. 1893.
The court entertained the application because the Circuit Court had not been in session since September, and would not be until after January 1, 1894. | [
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To set aside an order staying proceedings, in an action upon the bond of a residuary legatee, to recover'a deficiency after foreclosure, on the ground that plaintiff therein had not obtained leave from the court in which the foreclosure was had to bring a suit at law for the deficiency.
Granted May 13, 1885, the court holding that leave was unnecessary, but that in any event the failure to obtain it was a mere irregularity which defendant had waived. | [
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Rehearing denied.
Reported below: 401 Mich 560. | [
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Request for appointment of counsel denied.
Case below, Court of Appeals Nos. 30657, 30658, order of April 12, 1977. | [
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Per Curiam.
Defendant appeals from a judgment in favor of plaintiffs in the amount of $204,883.54 in actual damages and $100,000 in exemplary damages for legal malpractice. We affirm.
Plaintiffs became foster parents of two children in May of 1978. The two girls lived with plaintiffs for one year while proceedings were pending to terminate the parental rights of the girls’ natural parents. Plaintiffs desired to eventually adopt the two girls, though no petition to adopt had yet been filed. The children were removed from plaintiffs’ custody in May of 1979 because of "disturbed behavior” on the part of plaintiff Wayne Sherrard.
After the girls were removed from their care, plaintiffs consulted defendant concerning the mat ter. Defendant advised plaintiffs that they had a federal civil rights claim and offered to pursue it in federal court. Defendant required a retainer of $1,000. Several informal meetings were held in June and July of 1979 to secure the return of the children, without success. Defendant requested and received another $6,000 retainer from plaintiffs.
On August 16, 1979, defendant filed suit on behalf of plaintiffs in federal district court. The lawsuit named as defendants the family and child services agency, the probate judge involved, and the guardian ad litem for the two children. Defendant informed plaintiffs that his advice to file the suit was based upon Smith v Organization of Foster Families for Equality & Reform, 431 US 816; 97 S Ct 2094; 53 L Ed 2d 14 (1977), and that based upon his research he believed that plaintiffs’ action had a "50/50 chance” of success. Defendant requested and received an additional $13,000 retainer to initiate this suit. An additional $6,000 retainer was requested and received on October 9, 1979.
On November 6, 1979, defendant received a letter from the attorney representing the probate judge which advised that the parental rights of the children’s natural parents had been terminated and invited plaintiffs to make a formal application for adoption. Defendant did not advise plaintiffs of the contents of the letter. Rather, he continually advised plaintiffs not to file an adoption petition.
Plaintiffs’ federal civil rights case did not succeed. Sherrard v Owens, 484 F Supp 728 (WD Mich, 1980). Donald Peters, who was defendant’s law clerk at the time, testified at trial that he brought to defendant’s attention unfavorable authority and recommended against appealing the case. Although Peters estimated the chances of success at eight to ten percent, defendant advised plaintiffs that the appeal had a "50/50” chance.
The federal appeal was unsuccessful and the United States Supreme Court denied certiorari in 1981. During this time period, defendant filed a slander suit on behalf of plaintiffs in Shiawassee Circuit Court against the family and child services agency and its case workers. Defendant characterized this suit as a "pressure tactic.” Eventually plaintiffs requested that the suit be dismissed because it was not having the desired effect. Defendant advised plaintiffs that if the suit was dismissed, they would be exposed to a legal action for the attorney fees and costs of the family and child services agency. The suit was eventually settled for the nuisance value of $4,000.
In December of 1981, defendant engaged an attorney, Jack Coté, to seek a writ of superintending control in Ingham Circuit Court. In a personal meeting between plaintiffs and Coté, it was revealed that plaintiffs had paid in excess of $200,000 to defendant so far in the case. In February of 1982, plaintiffs asked Coté to take over their representation. Coté required the assistance of an armed security guard to take possession of plaintiffs' files from defendant.
After review of the file, Coté determined that there was no hope of the children being returned to plaintiffs. Given the length of time that the children had been separated from plaintiffs, and the fact that the children had since been placed in another adoptive home, Coté advised plaintiffs to discontinue any further efforts to obtain the children.
At the instant malpractice trial against defendant, plaintiffs offered the expert testimony of constitutional law professor Philip Prygoski, who testified that the federal action filed by defendant had "zero” chance of success, and in his opinion should not have been filed. Prygoski testified that it was "terrible negligence” for defendant to advise the filing of the federal court action, rather than the filing of an adoption petition when the children became available for adoption in September of 1979.
Defendant offered the expert testimony of attorney John Wright. Wright testified that defendant’s actions were consistent with the standard of practice for an attorney of ordinary learning, judgment and skill.
Defendant first argues that the trial court abused its discretion by allowing plaintiffs to amend their complaint to add claims of willful and wanton misconduct in a prayer for exemplary damages. We disagree. The Supreme Court explained the standard for granting amendment to pleadings pursuant to GCR 1963, 118.1, now MCR 2.118, in Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 656; 213 NW2d 134 (1973):
Our rule, as the Federal rule, is "designed to facilitate the amendment of pleadings except where prejudice to the opposing party would result.” United States v Hougham, 364 US 310, 316; 81 S Ct 13, 18; 5 L Ed 2d 8, 14 (1960). A motion to amend ordinarily should be granted, and denied only for particularized reasons:
"In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc, — the leave sought should, as the rules require, be 'freely given.’ ” Foman v Davis, 371 US 178, 182; 83 S Ct 227, 230; 9 L Ed 2d 222, 226 (1962).
Prejudice refers to matters which would prevent a party from having a fair trial and not whether the amendment would affect the result of the trial. Id. at 657.
While we note that the amendment came shortly before trial, we also note that the amendment did not raise new factual allegations, but merely claimed new types of damages arising from the same set of factual allegations. Accordingly, we do not believe that the trial court abused its discretion in granting the motion to amend the complaint.
Defendant next argues that the trial court erred in refusing to rule, as a matter of law, that in 1979 an attorney of ordinary learning, judgment and skill was justified in advising his client that foster parents may have had a constitutionally protected liberty interest which entitled them to a postremoval hearing if they could prove a reasonable expectation of a long-term relationship with the foster child and instructing the jury accordingly. Specifically, defendant complains that the trial court erred in refusing to give defendant’s requested supplemental instructions Nos. 39 and 40.
Where a standard jury instruction does not adequately cover a particular area, the trial court is obligated to give additional jury instructions when requested where those instructions properly instruct on the applicable law. Shields v Grandstaff, 161 Mich App 175, 181; 410 NW2d 308 (1987), lv gtd on other grounds 430 Mich 857; 420 NW2d 569 (1988). It is within the trial court’s discretion to determine whether a proposed instruction is applicable and accurately states the law. Id. In the case at bar, we do not believe that the trial court abused its discretion in denying defendant’s request to give the proposed instructions at issue.
Defendant’s final argument is that it was an abuse of discretion for the trial court to instruct the jury that plaintiffs were entitled to but one recovery and then instruct the jury that it could find for the plaintiffs on damages previously compensated for in another action. However, defendant fails to cite any authority in support of his position. Accordingly, defendant has waived appellate review of this issue. See Butler v DAIIE, 121 Mich App 727, 737; 329 NW2d 781 (1982).
Affirmed. Plaintiffs may tax costs.
We also note that the prior action involved different parties and different claims. | [
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Ryan, J.
Defendant Alcamo’s Holiday House and Alcamo’s Hall, Inc., known hereafter as Alcamo’s, appeals from the order of the Court of Appeals reversing the trial court’s grant of summary judgment which dismissed a complaint seeking damages under § 22 of the Michigan Liquor Control Act.
The facts are undisputed. Alcamo’s is a private rental hall located in Mt. Clemens, Michigan. It is available for private parties, banquets, and wedding receptions.
On the evening of June 11, 1971 a private wedding reception was held at the hall. The lease of the hall provided that alcoholic beverages were not to be sold on the premises unless the necessary licenses were obtained by the lessees. The alcoholic beverages which were consumed at the reception were all privately provided by the celebrants, with the exception of keg beer that was obtained through Alcamo’s at retail cost plus a fee for handling, tapping and setting up the keg. Alcamo’s provided a waiter and the facilities for the dispensation of the beverages at the reception.
Among the guests at the gathering were the defendants Patrick and Lillian Bieniek. During the course of the evening Patrick Bieniek consumed an amount of alcoholic beverage. In the early morning hours of June 12, after leaving the reception, Patrick Bieniek drove his automobile broadside into another automobile resulting in the death of three of its occupants, including James D. Guitar, the plaintiffs decedent, and serious injury to a fourth.
The question for decision is whether Alcamo’s, under the presented facts, is subject to liability under § 22 of the Michigan Liquor Control Act effective at the date of the incident. We hold it is not.
Resolution of the stated issue requires our decision as to the meaning of the word "person” as used by the Legislature to define the class of persons who may be liable under the so-called "dramshop” provision of § 22 of the Michigan Liquor Control Act.
The word "person” is defined in the Liquor Control Act as:
"[A]ny person, firm, partnership, association or corporation.” MCLA 436.2k; MSA 18.972(11).
"The words and phrases used in this act shall be construed as defined in this section and in sections 2a to 2w, inclusive, unless the context shall otherwise require. ” MCLA 436.2; MSA 18.972. (Emphasis supplied.)
Our inquiry necessarily focuses upon what the context "may otherwise require”.
The plaintiffs urge us to adopt a broad construction of the act in defining the class of person who may be liable under § 22 in view of the legislation’s remedial purpose. Defendant Alcamo’s, on the other hand, prefers a much narrower construction in view of the somewhat penal character of the statute and its imposition of civil liability in derogation of common law. We need not employ either tack, however, since the intent of the Legislature regarding the class of person to whom liability extends under the "dramshop provisions” of the act is readily ascertainable from an analysis of the context in which reference to such persons is made.
In determining the meaning of the language in question we are obedient to the settled principle that doubtful or ambiguous provisions of a statute are construed not in isolation but with reference to and in the context of related provisions, in order to give effect to the whole enactment. When, as here, reference to several related provisions of the statute makes manifest the legislative intent in employing specific language, it is outside our province to assign to such language, in the name of broad or narrow construction, a meaning at variance with the plain intent.
The essentially operative language of § 22 provides:
"[A person injured in his person or property] shall have a right of action in his or her name against the person who shall by such selling or giving of any such liquor have caused or contributed to the intoxication of said person or persons or who shall have caused or contributed to any such injury * * * (Emphasis supplied.)
We must decide whether Alcamo’s is a "person” within the meaning of the foregoing paragraph. To do so, we are required to construe a section of a statute which is somewhat inartfully drawn and whose provisions are poorly organized. Our effort at construing the statute is almost reduced to the schoolroom diagramming and parsing exercises of a bygone day. An analytical perusal of § 22 of the Michigan Liquor Control Act, as it was effective at the date of the incident, is essential to an adequate understanding of the proper breadth or scope of the liability provisions therein.
Because we are persuaded it will be of substantial assistance to the reader, we reluctantly burden the case report by reproducing the former entire § 22 in the margin just as it appeared in our former statute.
The section begins with language which establishes the procurement of a bond as a condition precedent to the approval and granting of any license to sell intoxicating liquors. Although having no direct applicability to the issue at hand, the first several provisions of § 22 establish the context in which the "persons” upon whom dramshop liability is imposed later in the section are identified.
"Sec. 22. As a condition precedent to the approval and granting of any license, the following persons shall make, execute and deliver to the commission a bond or bonds, said bond or bonds to be executed by any surety company or companies authorized to do business in the state of Michigan or in the discretion of the commission by approved personal surety running to the people of the state of Michigan, in the following amounts:
"1. Manufacturers, a bond or bonds in the sum of $5,000.00; wholesalers, a bond or bonds in the sum of $2,500.00; warehousemen, a bond or bonds in the sum of $2,500.00; specially designated distributors and specially designated merchants, a bond or bonds in the sum of $1,000.00, for the faithful performance of the conditions of the license issued and compliance with the provisions of this act; any manufacturer who has given the bond or bonds herein provided for shall not be required to give any additional bond or bonds for any warehouse he may own or operate.” (Emphasis added.)
Therefore, in order to obtain a liquor license, manufacturers, warehousemen, specially designated distributors, and specially designated merchants are identified as the persons who must secure a bond in conformity with the above section.
There follows in the next succeeding paragraph what are essentially two distinct provisions made applicable to the same class of persons; that is, retailers of beer or wine, or spirits, for consump tion on the premises. First, liability bonding provisions are established for on-premises beer, wine and liquor retailers and, second, there is imposed upon such retailers, as well as specially designated merchants, the duty to refrain from supplying alcoholic liquor to a minor or intoxicated adult and liability to respond in damages for doing so, if "such” person should, by reason of an unlawful supplying, injure another in the latter’s "person or property or means of support or otherwise”. It reads:
"2. Retailers of beer or wine for consumption on the premises, a bond or bonds in the sum of not less than $3,000.00 nor more than $5,000.00, in the discretion of the commission; retailers of spirits for consumption on the premises, a bond or bonds in the sum of not less than $5,000.00 nor more than $10,000.00 in the discretion of the commission, conditioned that any such retailer or specially designated merchant will not directly or indirectly, by himself, his clerk or agent or servant at any time sell, furnish, give or deliver any alcoholic liquor to a minor except as provided in this act, nor to any adult person whatever who is at the time intoxicated, and that he will pay all damages actual and exemplary that may be adjudged to any person or persons, including those hereinafter mentioned, for injuries inflicted upon him or them either in person or property or means of support or otherwise, by reason of his selling, furnishing, giving or delivering any such alcoholic liquor.” (Emphasis supplied.)
The final words of the foregoing, beginning with "and that he will pay all damages”, constitute the beginning of the statutorily established rights and liabilities commonly known as the "dramshop” legislation, with the persons in whose favor the cause of action is created being described in part as "including those hereinafter mentioned”, thus suggesting that later provisions must be read in conjunction with the foregoing.
There next appears in § 22 a reproduction of the entire form of the bond made mandatory by the antecedent paragraphs. This break in the continuity of the relevant liability portions of § 22 has been primarily responsible for the apparent confusion at issue today.
The confusion arises when one attempts to read the language of dramshop liability which follows the bond form as though it stood alone, rather than in the context of the companion liability language which precedes the bond form paragraph. Although the bonding and civil liability provisions of § 22 are recited in a somewhat cumbersome and poorly organized fashion, it is evident that in order to construe the meaning of the dramshop liability provisions of the act, the concluding paragraph of § 22 must be read with reference to the earlier liability language. We have observed as much on at least two prior occasions when construing related liability provisions of § 22. Maldonado v Claud’s Inc, 347 Mich 395, 403-404; 79 NW2d 847 (1956); Juckniess v Supinger, 323 Mich 566, 571-572; 36 NW2d 148 (1949).
In Maldonado, supra, p 404, this Court noted:
"that the basis of the right of action created by the legislature is 'unlawful selling, giving, or furnishing to any such persons’ intoxicating liquors. The term 'such persons’ must be deemed to have reference to those to whom sales may not lawfully be made. The emphasis is obviously on unlawful transactions of the character mentioned. A sale to a minor falls within the category. The term 'such selling’ must be taken to mean selling in violation of the statute.”
Likewise, in this case, those against whom the action may be brought has reference to those charged with the duty to refrain from supplying liquor to minors and intoxicated persons. When in the concluding paragraph of § 22 it is stated that there shall exist "a right of action * * * against the person who shall by such selling or giving of any liquor have caused or contributed to the intoxication of said person” the class of persons to be charged is to be identified by construing that language together with the earlier paragraph delineating those upon whom the duty is imposed to refrain from "such selling or giving of any liquor”; when so construed, the class of persons to be charged is obviously "any such retailer or specially designated merchant”.
In summary, then, in order to properly identify the person or class of persons upon whom liability may be imposed under the civil liability or "dram-shop” provision of §22, the paragraph immediately preceding and that immediately succeeding the bond form language must be read together as though uninterrupted. When that is done it is seen that the paragraph preceding the bond language of § 22 establishes a legal duty with which a certain class of liquor traffickers is to be charged, while the paragraph succeeding the bond language describes the person entitled to initiate an action for damages and the procedural limitation upon such action.
We disagree with plaintiffs view that the concluding paragraph of § 22 was intended to expand the class of persons who may be vicariously liable. We hold instead that liability is limited to persons within the class of liquor traffickers specifically delineated in the dramshop provision of the act, a class consisting of licensed retailers of beer, wine or spirits for consumption on the premises and Specially Designated Merchants.
It is implicit of course that "persons” maintain ing operations tantamount to those embraced within the foregoing class but who have failed to obtain or maintain the required licensing are equally chargeable under the "dramshop” provision of the act.
In the instant case it is uncontroverted that while Alcamo’s procured keg beer for its lessee and even assisted with the dispensing of alcoholic beverages, it was neither a retailer of beer or wine, or spirits, for consumption on the premises, nor a Specially Designated Merchant. Moreover, the facts do not lend themselves to the conclusion that the operation of the rental hall by Alcamo’s was at all similar to the type of liquor trafficking contemplated in the "dramshop” provisions of § 22 of the Liquor Control Act.
It is evident from a reading of the narrow and restrictively drawn civil liability provisions of § 22 that the Legislature intended to impose a special legal duty upon a group of retailers who the Legislature may have believed needed additional encouragement to subject their immediate pecuniary interests to the ultimate welfare of their patrons and society as a whole. That encouragement has been made to consist in part of the resultant vicarious liability.
In the case at hand, the role of Alcamo’s does not fit logically within the manifest legislative purpose. Whereas the class of retailers specifically named in § 22 may be directly proprietorily motivated to dispense "that additional drink” which is "one too many”, such motivation is totally inapplicable to a social setting in which the alcohol is supplied as a mere social amenity.
As such, the instant and similar situations lie outside of the purview of "dramshop” liability. The Legislature, in balancing social and financial inter ests, designated a specific group of "persons” to whom the civil liability provisions would apply. Those "persons” not literally or implicitly charged with the duty or condition imposed under § 22 of the Michigan Liquor Control Act are consequently not subject to liability thereunder.
Accordingly, we reverse the decision of the Court of Appeals and reinstate the summary judgment of dismissal entered on behalf of Alcamo’s.
Kavanagh, C. J., and Levin, Coleman, and Fitzgerald, JJ., concurred with Ryan, J.
MCLA 436.22; MSA 18.993.
MCLA 436.1 et seq.; MSA 18.971 et seq.
MCL 436.22 was thereafter amended by 1972 PA 196, imd. eff. June 29.
The term "dramshop” is a colloquialism well known to the bench and bar of this state as having reference to provisions in state statutes imposing vicarious civil liability upon a designated class of persons for dispensing liquor under certain prohibited circumstances. In the instant case the term "dramshop” is colloquially applied to the civil liability provisions of § 22 of the Michigan Liquor Control Act.
Taylor v Auditor General, 360 Mich 146; 103 NW2d 769 (1960); Hartwick v Sanilac Drain Commissioner, 338 Mich 624; 62 NW2d 596 (1954); Smith v City Commission of Grand Rapids, 281 Mich 235; 274 NW 776 (1937); Smith v Wayne County Sheriff, 278 Mich 91; 270 NW 227 (1936).
As Mr. Justice Carr said in Jones v Grand Ledge Public Schools, 349 Mich 1, 11; 84 NW2d 327 (1957):
"It is not within the province of. this Court to read therein a mandate that the legislature has not seen fit to incorporate. Our duty is to apply the law as we find it.”
Section 22 was subsequently amended, effective June 29, 1972 by 1972 PA 196.
"Sec. 22. Form of bond. As a condition precedent to the approval and granting of any license, the following persons shall make, execute and deliver to the commission a bond or bonds, said bond or bonds to be executed by any surety company or companies authorized to do 'business in the state of Michigan or in the discretion of the commission by approved personal surety running to the people of the state of Michigan in the following amounts:
"(1) Manufacturers, a bond or bonds in the sum of $5,000.00; wholesalers, a bond or bonds in the sum of $2,500.00; warehousemen, a bond or bonds in the sum of $2,500.00; specially designated distributors and specially designated merchants, a bond or bonds in the sum of $1,000.00, for the faithful performance of the conditions of the license issued and compliance with the provisions of this act; any manufacturer who has given the bond or bonds herein provided for shall not be required to give any additional bond or bonds for any warehouse he may own or operate.
"(2) Retailers of beer or wine for consumption on the premises, a bond or bonds in the sum of not less than $3,000.00 nor more than $5,000.00, in the discretion of the commission; retailers of spirits for consumption on the premises, a bond or bonds in the sum of not less than $5,000.00 nor more than $10,000.00, in the discretion of the commission, conditioned that any such retailer or specially designated merchant will not directly or indirectly, by himself, his clerk or agent or servant at any time sell, furnish, give or deliver any alcoholic liquor to a minor except as provided in this act, nor to any adult person whatever who is at the time intoxicated, and that he will pay all damages actual and exemplary that may be adjudged to any person or persons, including those hereinafter mentioned, for injuries inflicted upon him or them either in person or property or means of support or otherwise, by reason of his selling, furnishing, giving or delivering any such alcoholic liquor.
"The bond required by this act shall be substantially in the following form:
" 'Know all men by these presents, that we..........as principal and..........as surety are held and firmly bound unto the people of the state of Michigan in the sum of..........dollars to the payment thereof well and truly to be made we bind ourselves, our heirs, executors, administrators, successors and assigns firmly by these presents.
"Sealed with our seals this .......... day of .......... A.D. 19...
"Whereas, the above named principal purposes to carry on the business of..........at..........in the county of........... state of Michigan.
"Whereas, the said principal has covenanted and agreed and doth hereby covenant and agree as follows, to wit: That he will not directly or indirectly, by himself, his clerk, agent or servant at any time, sell, furnish, give or deliver any spirituous, malt, brewed, fermented or vinous liquor, any mixed liquor or any mixture or compound a part of which is spirituous, malt, brewed, fermented or vinous liquor to a minor, nor to any adult person whatever who is at the time intoxicated, and that he will pay all damages actual and exemplary that may be adjudged to any person or persons for injuries inflicted upon him or them either in person or property or means of support or otherwise by reason of his selling, furnishing, giving or delivering any such liquors. Now, the condition of this obligation is such that if the said principal shall well and truly keep and perform all and singular the foregoing covenants and agreements and shall pay any judgment for actual or exemplary damages which may be recovered against him in any court of competent jurisdiction and all fines and costs that may be imposed upon him for violations of this act, then this obligation shall be void and of no effect; otherwise, the same shall be in full force and effect.
"Signed and sealed in the presence of
.............................................................L. S.
............................................................L.S.’ ”
"The liquor control commission shall be empowered to embody such other provisions in the bond as it shall deem necessary.
"Every wife, husband, child, parent, guardian or other persons who shall be injured in person or property, means of support or otherwise, by an intoxicated person by reason of the unlawful selling, giving or furnishing to any such persons any intoxicating liquor, shall have a right of action in his or her name against the person who shall by such selling or giving of any such liquor have caused or contributed to the intoxication of said person or persons or who shall have caused or contributed to any such injury, and the principal and sureties to any bond given under this law shall be liable, severally and jointly, with the person or persons selling, giving or furnishing any spirituous, intoxicating or malt liquors as aforesaid, and in any action provided for in this section, the plaintiff shall have the right to recover actual and exemplary damages in such sum not less than $50.00 in each case as the court or jury may determine, but no surety shall be liable in excess of the amount of the bond required by this act. Any action shall be instituted within 2 years after the happening of the event. In case of the death of either party, the action or right of action given in this section shall survive to or against his or her executor or administrator, and in every such action by a husband, wife, child or parent, the general reputation of the relation of husband and wife or parent and child shall be prima facie evidence of such relation, and the amount so recovered by either husband or wife or parent and child shall be his or her sole and separate property. Such damages together with the costs of suit shall be recovered in an action of trespass on the case before any court of competent jurisdiction; and in any case where the parent shall be entitled to any such damages, either the father or mother may sue alone therefor, but recovery by one of such parties shall be a bar to suit brought by the other. The bond required by this act shall continue from year to year unless sooner cancelled by the surety. No surety shall cancel any bond except upon 10 days’ written notice to the commission.”
"Manufacturer” means any person engaged in the manufacture of any alcoholic liquor, and among others, includes a distiller, a rectifier, a wine maker, and a brewer. MCLA 436.2j; MSA 18.972(10).
"Warehouseman” means any licensee authorized by the commission to store alcoholic beverages, but prohibited from making sales or deliveries to retailers unless such licensee is also the holder of a wholesaler or manufacturer license issued by the commission. MCLA 436.2m; MSA 18.972(13).
"Specially designated distributor” means a person engaged in an established business licensed by the commission to distribute alcoholic liquor other than wine under 16 percent alcohol by volume and beer in the original package for the commission for consumption off the premises. MCLA 436.2p; MSA 18.972(16).
"Specially designated merchant” means any person to whom the commission grants a license to sell beer and/or wine at retail for consumption off the premises of such licensed place. MCLA 436.2q; MSA 18.972(17).
"Retailer” means any person who customarily sells to the con sumer under such rules as the commission may establish. MCLA 436.2m; MSA 18.972(13).
The paragraph in relevant part reads:
"and that he will pay all damages actual and exemplary that may be adjudged to any person or persons, including those hereinafter mentioned ***’’, (Emphasis supplied.)
Subsequent to the model bond the liability provision continues, enumerating the persons specifically referred to in the former paragraph.
“Every wife, husband, child, parent, guardian or other persons who shall be injured in person or property, means of support or otherwise, by an intoxicated person by reason of the unlawful selling, giving or furnishing * * * ”,
Such reference is a clear manifestation of the legislative intent to integrate the two paragraphs rather than construe them in isolation.
"[CJonditioned that any such retailer or specially designated merchant will not directly or indirectly, by himself, his clerk or agent or servant at any time sell, furnish, give or deliver any alcoholic liquor to a minor except as provided in this act, nor to any adult person whatever who is at the time intoxicated, and that he will pay all damages actual and exemplary that may be adjudged to any person or persons, including those hereinafter mentioned”. (Emphasis supplied.)
"Every wife, husband, child, parent, guardian or other persons who shall be injured in person or property, means of support or otherwise, by an intoxicated person by reason of the unlawful selling, giving or furnishing to any such persons any intoxicating liquor, shall have a right of action in his or her name against the person who shall by such selling or giving of any such liquor have caused or contributed to the intoxication of said person or persons or who shall have caused or contributed to any such injury * * * ”. (Emphasis supplied.)
"Any action shall be instituted within 2 years after the happening of the event. In case of the death of either party, the action or right of action given in this section shall survive to or against his or her executor or administrator, and in every such action by a husband, wife, child or parent, the general reputation of the relation of husband and wife or parent and child shall be prima facie evidence of such relation, and the amount so recovered by either husband or wife or parent and child shall be his or her sole and separate property. Such damages together with the costs of suit shall be recovered in an action of trespass on the case before any court of competent jurisdiction; and in any case where the parent shall be entitled to any such damages, either the father or mother may sue alone therefor, but recovery by one of such parties shall be a bar to suit brought by the other.” | [
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Per Curiam.
The State Bar Grievance Board suspended J. Michael Kopp’s license to practice law for 60 days. The hearing panel found that the respondent had been retained to appeal William Guthrie’s criminal conviction, but had failed to perfect an appeal as of right or initiate proceedings for a delayed appeal and had not informed his client that the time for filing a claim of appeal as of right had expired. The panel concluded that he had neglected a legal matter entrusted to him and had failed to carry out a contract with a client for professional services in violation of Canons 6 and 7 of the Code of Professional Responsibility. A claim made by Kopp on appeal is that these findings and conclusions are not supported by the record.
The board claims the respondent’s failure to answer Guthrie’s request for investigation and the testimony of Guthrie’s mother at the hearing supported the panel’s findings. William Guthrie’s request for investigation stated that Kopp agreed to "file a brief with the appeal court” and that Guthrie did not believe this had been done. Kopp did not answer the request for investigation and a default was entered pursuant to Grievance Board Rule 16.6.1. Mrs. Guthrie testified at the hearing that Kopp was retained to effect an appeal, but she said she had not been present during the discussions on the terms of the agreement between her son and Kopp.
Kopp testified that the terms of the retainer agreement were that he would study the trial transcript and record and would appeal the conviction if grounds for an appeal were found. After studying the transcript and researching the law, he concluded that there were no grounds for an appeal. He testified that he told Guthrie there were no grounds for an appeal, but could not remember whether he told him that the time for filing a claim of appeal as of right had expired.
The standard of review is whether upon the whole record there is proper evidentiary support for the findings of the grievance board. State Bar Grievance Administrator v Estes, 390 Mich 585; 212 NW2d 903 (1973), State Bar Grievance Administrator v Posler, 390 Mich 581; 213 NW2d 133 (1973). At issue were the terms of a retainer agreement between Guthrie and his attorney. Guthrie did not testify at the hearing. Mrs. Guthrie said she did not participate in the discussions on the terms of the agreement. Guthrie’s statement in the request for investigation that Kopp had agreed to file a brief was rebutted by Kopp’s testimony that he agreed to appeal the conviction only if meritorious grounds were found. The charges that Kopp failed to carry out a contract with his client and neglected a legal matter entrusted to him do not have proper evidentiary support on the whole record. State Bar Grievance Administrator v Beck, 400 Mich 40; 252 NW2d 795 (1977).
Although the remaining issues raised by the respondent concerning these charges need not be resolved, the board’s failure to grant his motion for rehearing merits some discussion. Attached to that motion was an affidavit by William Guthrie containing statements which corroborated Kopp’s testimony on the terms of the agreement. Guthrie stated that the agreement was that Kopp would appeal the conviction only if he found substantial grounds for an appeal and that he asked for an investigation because he felt Kopp might owe him some money. He claimed he would have made these statements earlier, but that no one from the State Bar had ever contacted him. The affidavit raised serious questions about the basis for the disciplinary order. The board erred in summarily denying the motion for rehearing "for lack of merit”.
The other ground for discipline concerned the respondent’s failure to comply with the procedural rules of the grievance board. He failed to answer the request for investigation. His answer to the formal complaint was not timely filed, as required by Grievance Board Rule 16.11(a). An attorney’s failure to answer a request for investigation or formal complaint in violation of the procedural and administrative rules of the State Bar Grievance Board constitutes misconduct under State Bar Rule 15, §2(7). After reviewing the respondent’s testimony explaining the reasons for his failure to comply with the Grievance Board Rules, we determine the appropriate discipline to be a reprimand.
The findings that the respondent failed to carry out a contract and neglected a legal matter are vacated and the disciplinary order is reduced to a reprimand.
Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. | [
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Per Curiam.
In this medical malpractice case, Debra McCarty and Michael McCarty, as copersonal representatives of the estate of their deceased infant son, Matthew Ryan McCarty, appeal as of right from a December 11, 1987, order of the Kent Circuit Court dismissing their lawsuit against defendants James R. Irwin, M.D., Earl R. Williams, M.D., and Grand River Ob-Gyn, P.C., pursuant to a jury verdict in favor of defendants. We find that the trial court committed error warranting reversal in precluding plaintiffs’ counsel from impeaching the credibility of the testimony of Carl Brandt, M.D., an expert witness for defendants, with an article published in a scholarly medical journal. Accordingly, we reverse the trial court’s order of dismissal and remand this case for a new trial.
The record reveals that Debra realized she was pregnant in November, 1984, and that during her pregnancy she was seen approximately once per month by Dr. Williams and once by Dr. Irwin. Her expected date of delivery was July 7, 1985. On July 21, 1985, her pregnancy was considered post-term. On July 25, 1985, Debra experienced some vaginal bleeding. Dr. Irwin instructed her by telephone to undergo the nonstress test that she was scheduled for at 8:00 a.m. that day. According to Debra, the nonstress test did not disclose much movement by the baby, but did reveal that the baby’s heartbeat "sounded fine.” After the stress test, Debra continued to bleed and was experiencing minor contractions, and therefore was examined by Dr. Irwin at 3:00 p.m. that day. She was told that her cervix had dilated only three centimeters and that she should go home and wait for labor to begin. That afternoon, while at home, Debra began bleeding as if she were menstruating and, upon calling her doctor’s office, was told by a receptionist or nurse, who had consulted Dr. Irwin, that the bleeding was due to her earlier examination and that she should wait to call back until contractions were coming five to seven minutes apart for an hour.
The bleeding continued, and on the next afternoon, Friday, July 26, 1986, after talking to her mother, Debra again called her doctor’s office. A nurse told her that Dr. Irwin was getting ready to leave, but relayed Dr. Irwin’s instruction that she should wait to call back until her contractions were coming five to seven minutes apart for an hour. The bleeding and minor contractions continued throughout Saturday, July 27, 1985. On Sun day, July 28, 1985, Debra was awakened at’ 3:30 a.m. by severe pains. She awakened her husband at 4:30 a.m. after having timed her contractions as coming five to seven minutes apart for an hour. Michael called the doctor’s office at 4:45 a.m. and his call was returned at 5:00 a.m. He was told not to rush, to permit Debra to take a shower, and then to go to the hospital. After showering, packing and making arrangements for a friend to care for their daughter, Debra and Michael arrived at the hospital at 6:30 a.m. When Matthew Ryan McCarty was delivered by Caesarean section he showed no signs of life. Eventually, he was resuscitated, but he suffered from severe central nervous system damage, cerebral palsy, seizure disorder, deafness, blindness, and severe mental retardation. He died on December 26, 1986.
Plaintiffs argue that the trial court erred in precluding their counsel at trial from impeaching the testimony of Carl Brandt, M.D., an expert witness for defendants, with an article published in a scholarly medical journal. We agree with plaintiffs.
In Jones v Bloom, 388 Mich 98, 118; 200 NW2d 196 (1972), the Supreme Court held that "medical textbooks or other publications may be used to cross-examine expert witnesses if the expert recognizes the publication as authoritative, or if the trial court takes judicial notice of the publication as authoritative.” See also Dziurlikowski v Morley, 143 Mich App 729, 732-733; 372 NW2d 648 (1985), aff'd 428 Mich 132; 405 NW2d 863 (1987). In addition, MRE 707 provides:
To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice, are admissible for impeachment purposes only.
In the present case, plaintiffs’ counsel, during the cross-examination of Carl Brandt, M.D., an expert witness for defendants who had stated on direct examination that Drs. Irwin and Williams did not breach any standard of care, attempted to impeach the credibility of Dr. Brandt’s testimony with an article entitled "Prolonged Pregnancy: The Management Debate,” published in the June, 1987, edition of the Obstetrical and Gynecological Survey, for the purpose of establishing that the applicable standard of care required Debra, during her postterm pregnancy, to have been given an ultrasound test in order to determine the volume of amniotic fluid present and, as a result, the well-being of the baby. Regarding this issue, the following testimony, objection, and ruling were recorded:
Q. Now, was ultrasound testing used in 1985 to evaluate the condition of babies in the mother’s womb prior to birth?
A. Yes.
Q. Should that have been done in this case?
A. I saw nothing on Mrs. McCarty’s prenatal record that put her in any sense of a high-risk situation, that would have required ultrasound during her pregnancy. Her dates were good, her growth was appropriate, they felt the fetal heart tones at 13 or 14 weeks with a Doptone, which was compatible with her due date. We usually use ultrasound to confirm our dates, is what we use it mostly for. Secondly, would be if there was a discrepancy in growth later in her pregnancy, to try to get a baseline on size, and to confirm that our dates were correct initially.
Q. Putting all that aside, doesn’t it also enable you to assess the volume of amniotic fluid in the best way possible.
A. Yes, but we order it for that — we rarely order ultrasound just for that reason.
Q. Are you familiar with Dr. Stuart Taylor?
A. Stuart Taylor, I have heard of Dr. Stuart Taylor, yes.
Q. What do you know of Dr. Stuart Taylor?
A. I have never met the man. I believe he is the head of the department at Denver, Colorado.
Q. It’s true, is it not, that he is the Professor Emeritus of Obstetrics and Gynecology at the University of Colorado, who is the obstetrical editor-in-chief of the Obstetric[al] and Gynecological Survey?
A. I believe that’s true.
Q. Is the Obstetrical and Gynecological Survey an authoritative publication, in your view?
A. It’s an excellent review journal. They take a cross-section of articles in all of our different journals, and there is an editorial board that editorializes on that particular subject. I would never admit to any journal being authoritative.
Q. And what does "authoritative” mean to you, Doctor?
A. Well, in this case it means that everything within that journal would be considered absolute truth, and that’s not always the case.
Q. Okay. Would you agree that the Obstetrical and Gynecological Survey is probably as close to a bible as obstetricians have today?
A. That I would agree to.
Q. But it’s not authoritative?
A. No, not in every single issue.
Q. Now, are you familiar with a review that Dr. Stuart Taylor did in the Obstetrical and Gynecological Survey in, I believe it was June of 1987?
A. Yes.
Q. Entitled "Prolonged Pregnancy, The Management Debate”?
A. Yes.
Q. It states in there that when the patient . . .
Mr. Grostic [attorney for defendants Irwin, Williams and Grand River Ob-Gyn, P.C.]: Your Honor, that’s an inappropriate use of that journal. He can’t read from the journal, it hasn’t been admitted to be authoritative, and he has just testified it was June of '87.
Mr. Dickinson [attorney for plaintiffs]: Your Honor, the witness has stated that it is as close to a bible as obstetricians have today.
The Court: But he does not recognize it as a reliable authority.
Mr. Dickinson: I beg your pardon?
The Court: He does not recognize it as authoritative.
By Mr. Dickinson:
Q. Do you recognize any treatises in this field as authoritative?
A. No, I do not.
Q. And the Obstetrical and Gynecological Survey is, as you have stated, as close to a bible as obstetricians have today, correct?
A. I believe I stated that in my deposition, and it was my way of saying that of the 15 or 20 periodicals that we review for Journal Club, this is one that we often will go back and consider as reliable as anything we have in our literature, but that does not make it authoritative. They review 30 to 40 articles every single month; some we would agree with, some they criticize, some they are presenting just for information sake. It does not make it authoritative.
Mr. Dickonson: Your Honor, based upon what the witness has stated about this publication, and given the fact that the only thing that he would consider to be authoritative would be something that was infallible, I think we have set the standard for using this article for impeachment purposes.
Mr. Grostic: Well, I renew my objection, and also again point out it’s June of ’87.
The Court: I will sustain the objection.
Mr. Grostic: Thank you, your Honor.
A decision whether to admit evidence rests within the discretion of the trial court and that decision will not be set aside on appeal absent an abuse of discretion. Hadley v Trio Tool Co, 143 Mich App 319, 328; 372 NW2d 537 (1985). In the present case we find that the trial court abused its discretion in precluding plaintiffs’ counsel from impeaching the credibility of Dr. Brandt with the article from the Obstetrical and Gynecological Survey.
Under MRE 707, information published in a medical periodical which is established as being reliable authority by the testimony or admission of an expert witness may be used for impeachment purposes during the cross-examination of that expert witness. Dr. Brandt himself admitted that the Obstetrical and Gynecological Survey is "an excellent review journal,” "as close to a bible as obstetricians have today,” and "as reliable as anything we have in our literature.” Nevertheless, he opined that the journal was not "authoritative” because everything in it could not always be considered "absolute truth.” Medical or any other authority, however, need not, and, indeed, cannot, always provide the absolute truth. Rather, as included in the definition of the word "authority” in The American Heritage Dictionary of the English Language (1973), an authority is "[a]n accepted source of expert information or advice, as a book or person,” or as in Webster's Third New International Dictionary (1961), "one who is cited or appealed to as an expert whose opinion deserves acceptance.” History, including the history of legal precedents, is replete with examples of the observation that, while truth is always authoritative, authority is not always true. Although authority, as the most reasoned and considered attempt at formulating and enunciating truth, may at times overshadow its object, it is nevertheless acknowledged to be a valuable source of reliable information. Dr. Brandt’s praise for the Obstetrical and Gynecological Survey and his assessment that that periodical is "as reliable as anything we have in our literature” undermine his assertion that that periodical is not authoritative. Thus, the trial court abused its discretion in precluding plaintiffs counsel from using it for impeachment purposes under MRE 707 on the ground that its authoritative status was not admitted by the expert witness.
In their appellate brief, defendants contend that the trial court acted correctly in sustaining the objection to the use of the journal article because the article was published after the date of the birth of plaintiffs son. While this argument may have some merit, it was not addressed and decided by the trial court. Generally, this Court will not review an issue which was not addressed and decided by the trial court. Providence Hospital v Nat’l Labor Union Health & Welfare Fund, 162 Mich App 191, 194; 412 NW2d 681 (1987).
In light of our finding that plaintiffs are entitled to a new trial due to the trial court’s abuse of discretion in precluding plaintiffs’ counsel from impeaching the credibility of an expert witness of defendants with an article published in a scholarly medical journal, we need not address the remaining issues raised on appeal by the parties.
Reversed and remanded for a new trial._
In accordance with pretrial stipulations, orders were issued by the trial court dismissing with prejudice plaintiffs’ claims against defendants Sisters of Mercy Health Corporation and Butterworth Hospital.
Alberti, in Del Principe III, wrote that "[n]othing overshadows truth so completely as authority,” and Pascal, in Pensees, noted that "[wjhen we do not know the truth of a thing, it is good that there should exist a common error which determines the mind of man.” These observations, while perhaps neither truthful nor authoritative, at least demonstrate that influential thinkers have not equated, as did Dr. Brandt in the present case, authority and truth. | [
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Cavanagh, J.
Following a jury trial, defendant Maurice Montgomery was convicted of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to consecutive prison terms of ten to twenty years for the armed robbery conviction and two years for the felony-firearm conviction. Defendant appeals as of right and we affirm.
On July 7, 1987, defendant and an accomplice took Margarite Motte’s car keys while she sat at a picnic table and, at gunpoint, forced her to the car. Defendant threatened Motte that if she attempted to run he would "pop her,” while holding a gun to her back. When Motte saw a truck approaching, she fled and began screaming that she was being robbed. Defendant and his accomplice fled on foot.
The jury began deliberations on February 3, 1988, at 12:04 in the afternoon. During deliberations, the foreperson asked the court officer if the jury could go to lunch. The judge approved and the court officer returned and told the jury that their request was granted and that they were to return at 2:15 p.m. The judge informed counsel of this communication and neither party raised an objection. Defendant now argues that the ex parte communication is automatic grounds for reversal regardless of prejudice. We disagree.
Our Supreme Court has established a strict rule prohibiting ex parte communication between a trial judge and a deliberating jury. See People v Cain, 409 Mich 858 (1980), reversing 94 Mich App 644; 288 NW2d 465 (1980) (where the bailiff relayed the trial judge’s answer concerning unanimity of the verdict); Zaitzeff v Raschke, 387 Mich 577; 198 NW2d 309 (1972) (where the trial judge entered the jury room and read back a portion of the trial testimony); People v Kangas, 366 Mich 201; 113 NW2d 865 (1962) (where the sheriff entered the jury room and later returned with instructions from the trial judge). Such communications or instructions by the court to the jury, outside the presence of counsel, are grounds for a new trial regardless of prejudice. People v Kangas, supra, pp 206-207; People v Wytcherly, 172 Mich App 213, 218; 431 NW2d 463 (1988).
However, an ex parte communication by a court officer may be grounds for reversal only after a determination that the contact was, or might have been, prejudicial. See Wilson v Hartley, 365 Mich 188; 112 NW2d 567 (1961) (no prejudice resulted from a communication between the bailiff and the jury regarding the form of the verdict); People v Schram, 378 Mich 145; 142 NW2d 662 (1966) (no prejudice resulted from a brief conversation between the prosecutor and two jurors, outside the jury room, before deliberations, concerning the estimated conclusion of trial). Prejudice is generally found where the communication bears directly on the substance of the jury’s deliberations or on the deliberative process. Wytcherly, supra; People v Lyons, 164 Mich App 307; 416 NW2d 422 (1987), lv den 430 Mich 861 (1988); People v Kent, 157 Mich App 780; 404 NW2d 668 (1987).
In Kent, the court clerk entered the jury room and took meal orders from the jury during deliberations. After a thorough review of the case law, this Court rejected the inflexible rule which required reversal regardless of prejudice where the communication with the jury did not directly relate to the jury’s deliberations. Kent, supra, p 791. This Court concluded that where the contact involved a purely insignificant housekeeping matter, reversal was not warranted. Id.
Likewise, in this case, defendant is not relieved from the burden of showing prejudice. We find that the court deputy’s entrance into the jury room and his communication to the jury that they could break for lunch, indicating the time when they were to return, was not prejudicial and therefore does not require reversal. As in Kent, neither the contact nor the utterance concerned a matter related to the substance of the jury’s deliberations or to the deliberative process itself. Counsel was fully informed of the nature of the communication and neither party objected. Defendant has not shown prejudice and, therefore, we decline to reverse.
Defendant next claims that his sentence of ten to twenty years, where the sentencing guidelines recommended thirty-six to seventy-two months, was excessive and should shock the conscience of this Court. People v Coles, 417 Mich 523, 550; 339 NW2d 440 (1983). We find no abuse of discretion. The sentencing judge explained that he was exceeding the guidelines primarily because of the violent nature of the armed robbery, including defendant’s attempt to take the victim hostage and his threat to shoot her if she attempted an escape. The court further considered defendant’s prior record of selling drugs and the factors of deterrence and discipline. Finally, the court considered defendant’s threat following trial "to make things right” against a witness who "lied about me.” Defendant’s sentence was tailored to the circumstances and to this defendant and was therefore not excessive. Coles, supra, pp 542-543.
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Coleman, J.
These separate criminal cases present a single narrow and unique question of statutory interpretation: When the Legislature enacted MCLA 750.535; MSA 28.803, which proscribes, inter alia, "aid[ing] in the concealment of * * * stolen * * * property”, did it intend to provide an alternate statute under which thieves could be convicted; or did it only intend to cast a net of criminal liability over persons who assist thieves or others in the concealment of stolen property?
I
Defendant Kyllonen was charged in a one-count information with buying, receiving or aiding in the concealment of stolen property. The evidence at his trial showed that he worked as a maintenance man at a Lansing automobile dealership. He did not appear for work on January 28, 1974. Later that day, the dealership discovered that a 1974 pickup truck was missing from its inventory. Two weeks later, Kyllonen was seen driving the truck in Iron River, Michigan. He was arrested and the truck was seized. He admitted in a signed confession that he had taken the truck from the dealership without permission and that he had parked the truck on a friend’s farm in Iron River, knew that the friend was stripping parts off the truck and was present when the friend made a telephone call to Chicago in an attempt to arrange a sale of the truck. At trial he testified that he had taken the truck and during the ensuing two weeks he had driven to Florida and back to Michigan. He parked the vehicle at the Iron River farm. He had discussed "getting rid of the truck” with his friend. In the meanwhile, he used it for his own purposes. His defense was insanity stemming from extensive physical and psychological trauma that he had suffered during two tours of combat duty in South Vietnam. The prosecutor emphasized the fact that defendant was not charged with the taking, but was charged with concealing the truck. The jury returned a verdict of guilty as charged.
Defendant Frum also was charged in a one-count information with buying, receiving or aiding in the concealment of stolen property. The evidence at his trial showed that he met the complainant at a bar and arranged to take her out the following evening. When he arrived to pick her up, she told him she had changed her mind and no longer wished to go out. He then indicated that he had left his wallet in her car the night before and asked if he could go retrieve it. She said "yes” and gave him her keys. When, after 20 minutes, he had not returned, she went to the parking lot and discovered that both he and her car were gone. Approximately two weeks later Frum was arrested in the car after a high speed chase following a hit and run accident. He gave the arresting officer a false name and said that he had purchased the car from the complainant. The car’s original license plates had been removed and replaced with plates that were stolen. At trial the complainant testified that she had not given Frum permission to take the car. The jury returned a verdict of guilty as charged.
On appeal each defendant argued that MCLA 750.535; MSA 28.803 does not apply to thieves who conceal the property they have stolen. Instead, its coverage is limited to persons who assist thieves or others in the concealment of stolen property.
The Court of Appeals panel which heard defendant Kyllonen’s case unanimously rejected this argument and affirmed his conviction. The panel recognized that under prior decisions of this Court, the defendant could not be convicted of both larceny and buying, receiving or aiding in the concealment of stolen property. However, the panel reasoned, so long as the defendant had not been convicted of larceny, he could be convicted of buying, receiving or aiding in the concealment of stolen property. The panel cited two prior Court of Appeals decisions in support of this conclusion.
A different Court of Appeals panel unanimously affirmed defendant Frum’s conviction. It reasoned that Frum had not been proven to be the thief beyond a reasonable doubt and that although larceny and buying, receiving or aiding in the concealment of stolen property are mutually exclusive crimes, prosecutors can exercise their discretion and charge either one.
Leave to appeal was granted in each case to determine the scope of criminal liability under MCLA 750.535; MSA 28.803 and to clarify the procedures to be followed in cases involving possible charges of both larceny and buying, receiving or aiding in the concealment of stolen property.
II
The history leading to the enactment of MCLA 750.535; MSA 28.803 is an appropriate place to begin the determination of the statute’s scope.
At common law, thieves could be prosecuted for larceny but persons who assisted thieves in disposing of stolen property could only be convicted of misprision of felony or compounding a felony. The two crimes were misdemeanors and the paltry penalties prescribed did little to deter persons from engaging in the societally harmful business of providing a marketplace for stolen goods. There were no separate substantive felony offenses proscribing such conduct. Persons helping to provide the channel to such a marketplace or providing the marketplace itself could not usually even be convicted as accessories after the fact to the larceny. To be guilty of that crime, one had to harbor the thief, not just his stolen goods.
In response to this situation, Parliament tried to close the loophole in the common law by enacting a statute providing that a person who bought or received stolen property could be convicted as an accessory after the fact to the larceny. However, this statute was difficult to enforce because accessories could only be convicted after the principal felon (here, the thief) had been apprehended, tried and convicted. To remedy the problem, Parliament enacted another statute abolishing this procedural requirement. Finally, Parliament completely severed the umbilical cord between larceny and buying or receiving stolen property by enacting a statute making the latter a separate and distinct substantive felony offense.
This early history reveals that the statutory crime of buying or receiving stolen property was originally designed and intended to proscribe conduct by persons who helped thieves dispose of their illegal booty. It was born out of a need to change the common law which permitted these persons to escape serious criminal liability. The statutory development was marked by a series of refinements directed towards prosecution and conviction of these offenders. Nowhere is there an indication that the statute also was intended to be an alternate provision under which thieves could be convicted.
The English statute proscribing buying or receiving stolen property crossed the Atlantic and became a fixture of American jurisprudence. In Michigan, it retained its basic form but its scope was somewhat broadened. The Revised Statutes of 1846, title 30, ch 154, § 20 stated:
"Every person who shall buy, receive or aid in the concealment of any stolen money, goods or property, knowing the same to have been stolen, shall be punished by * * * (Emphasis added.)
Likewise, Rev Stat 1846, title 30, ch 154, § 23 stated:
"In any prosecution of the offence of buying, receiving or aiding in the concealment of stolen money or other property, it shall not be necessary to aver, nor on the trial thereof to prove, that the person who stole such property has been convicted.” (Emphasis added.)
Although legislative intent often is elusive, the thrust of the statutory wording is clear on its face and consistent with its historical development. It is directed towards those who assist the thief or others in the disposition or concealment of stolen property. The everyday understanding of the language employed excludes the person who committed the larceny.
To interpret the words "buys”, "receives” or "aids in the concealment” of stolen property to mean buying or receiving from one’s self or aiding one’s self in concealment is needlessly to corrupt a forthright and harmonious statute. Other statutes proscribe larcenous activities.
Early Michigan caselaw confirms the fact that it was the gap in the English statute which provided the stimulus to add the words "or aids in the concealment” to the Michigan statute. In People v Reynolds, 2 Mich 422 (1852), after describing the development of the English statute, the Court said:
"Our statute has enlarged this * * * offense, by making persons who shall aid the principal felon in the concealment of the property stolen, equally guilty with him who shall receive such property.
"This was the object of the statute, and was intended to embrace a class of offenses which could not [otherwise] have been reached * * * ; for important aid and assistance could have been rendered to the principal felon in enabling him to conceal the stolen property, without having been the receiver, so as to have subjected him to a prosecution on that account * * * .
"The evil intended to be guarded against by the enactment of [this] law was, to prevent persons from rendering important, efficient services to a felon, in aiding him in the concealment of stolen property * * * .” (Emphasis in original opinion.)
The Court then went on to hold that in order to make "the remedy commensurate with the evil”, id. 424, any aid rendered to the principal felon by the defendant "which would have a tendency to conceal [the stolen property] from the observation of the owner”, ibid., was proscribed by the word "concealment” as used in the statute.
The pertinent language of the statute has not been changed since the Reynolds decision. It still only proscribes aiding in the concealment of stolen property. This language does not reasonably encompass a thief who conceals property he has stolen, for example, by placing a stolen bracelet in his coat pocket.
III
In People v Hall, 391 Mich 175, 189-190; 215 NW2d 166 (1974), this Court described how penal statutes are to be interpreted, saying
" * * * penal statutes are to be strictly construed [citations omitted]. However, * * * the fact that these types of statutes are narrowly construed does not require rejection of that sense of the words which best harmonizes with the overall context of the statutes and the end purpose sought to be achieved by such legislation. With criminal statutes, such end purpose is the evil sought to be corrected and the objects of the law sought to be effectuated [citation omitted].”
Then the Court quoted at p 191 some words from Genesee Trustee Corp v Smith, 102 F2d 125, 126 (CA 6, 1939), which obliquely apply. (If the wording of MCLA 750.535; MSA 28.803 is not "obscure", usage and subsequent judicial opinions have made it so.)
"Where the language of a statute is obscure or of doubtful meaning, the courts in construing it may, with propriety, recur to the history of the times when it was passed and of the act itself in order to ascertain the reason as well as the meaning of its provisions and it may also consider all conditions and circumstances surrounding its enactment in the light of the general policy of previous legislation on the same subject [citations omitted].”
The precepts above as applied to the case at bar lead to the conclusion that the addition to the statute of the words "aids in the concealment of’ was intended "to prevent persons from rendering important, efficient services to a felon, in aiding him in the concealment of stolen property” (Reynolds, supra, 424). The object was to make liable persons who helped thieves or others conceal stolen property as well as those persons already covered by the statute who bought or received stolen property. Limiting the application of these words does no violence to the end result sought to be achieved by the statute or the objectives sought to be effectuated. Also, this interpretation is consistent with the general policy of all previous legislation on this subject.
Therefore, the statute should be strictly construed to exclude thieves who conceal property they have stolen. Under the Michigan statutory scheme, thieves are to be punished for larceny. Persons who help thieves or others conceal stolen property are to be punished for aiding in the concealment of stolen property.
IV
In each case at bar the prosecution has anticipated a number of potential problems under the foregoing interpretation. However, the problems have solutions.
The prosecution first contends that under today’s decision a defendant charged only with buying, receiving or aiding in the concealment of stolen property may escape all criminal liability by simply revealing in midtrial or on appeal after a conviction that he was the thief and therefore not amenable to prosecution for buying, receiving or aiding in the concealment of stolen property. Apparently, this alarm is based on the assumption that reprosecution would be barred by the "same transaction” test adopted in People v White, 390 Mich 245; 212 NW2d 222 (1973).
Even if the crimes of larceny and buying, receiving or aiding in the concealment of stolen property could be said to arise from the same transaction, the prosecution would not be prohibited from re-prosecution on the theft charge if the defendant’s revelation that he was the thief was truly a surprise. In White, supra, 258, fn 6, this Court said:
"We are aware that in certain situations, strict application of the same transaction test could lead to the anomalous result of foreclosing prosecution for an offense where the state had made a diligent and good faith effort to protect the defendant’s constitutional rights.
" 'For example, where a crime is not completed or not discovered, despite diligence on the part of the police [and the prosecutor], until after the commencement of a prosecution for other crimes arising from the same transaction, an exception to the "same transaction” rule should be made to permit a separate prosecution.’ [Citation omitted.]”
The prosecution also contends that today’s decision will prohibit the prosecution of thieves who sell or otherwise transfer their stolen property to another person and then help that person conceal it.
That conclusion is not warranted. A sale or other transfer of stolen property by the thief marks the end of the original crime of larceny. After this, aid rendered by the thief which has a tendency to conceal the property from the owner’s observation may be considered aid rendered to another and may be punishable under MCLA 750.535; MSA 28.803. The transferee may become the principal felon, guilty of buying or receiving as the case may be, and the thief may become his assistant. Similarly, if the thief transfers stolen property and then buys or receives it back, he may be prosecuted and convicted under this statute.
Further, the prosecution contends that today’s decision requires proof beyond a reasonable doubt that the defendant was not the thief in order to secure a conviction for buying, receiving or aiding in the concealment of stolen property, and that this will be difficult to prove.
This problem will vanish if the prosecution charges the defendant with both larceny and buying, receiving or aiding in the concealment of stolen property. The prosecution then may simply present its proofs and the factfinder may convict the defendant of either crime or acquit him altogether, depending upon its perception of the evidence.
V
The final questions in this case are whether the defendants’ convictions should be reversed and, if so, whether the defendants should be discharged or retried.
The people argue that the convictions should be affirmed because the jurors were free to believe the evidence produced in each case tending to show that the defendant aided in the concealment of stolen property and disbelieve the evidence tending to show that the defendant was the thief.
This argument would be acceptable if the jurors had been instructed that they must acquit the defendant of buying, receiving or aiding in the concealment of stolen property if they believed that the defendant was the thief. Because the jurors were not informed of this crucial legal fact, they may have rendered verdicts of guilty even though they believed that the defendant in each case was the actual thief. Therefore, the prosecution’s argument must be rejected and the defendants’ convictions must be reversed.
The defense argues that the "same transaction” test adopted by this Court in People v White, supra, bars reprosecution of the defendants and mandates their discharge. We decline to consider this argument at this time because it is premature. Unless and until the prosecutors in these two cases decide to reinstitute proceedings against these defendants, the question whether White bars reprosecution does not arise, except in the abstract. We prefer to wait for a concrete case in which this question is squarely presented before making a decision.
The Court of Appeals decision in each case is reversed.
Kavanagh, C. J., and Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Coleman, J.
MCLA 750.535; MSA 28.803 provides in subsection (1):
"A person who buys, receives, or aids in the concealment of any stolen, embezzled, or converted money, goods or property knowing the same to have been stolen, embezzled, or converted, if the property purchased, received or concealed exceeds the value of $100.00, is guilty of a felony, punishable by imprisonment for not more than 5 years, or by a fine of not more than $2,500.00, or both. If the property purchased, received, or concealed is of a value of $100.00 or less, the person is guilty of a misdemeanor. On a third or subsequent conviction under this section the person is guilty of a felony, punishable as herein provided, although the value of the property purchased, received, or concealed did not exceed $100.00.”
66 Mich App 467; 239 NW2d 410 (1976).
See People v Allen, 252 Mich 553; 233 NW 412 (1930).
People v Simon, 23 Mich App 64; 178 NW2d 106 (1970), and People v Randall, 42 Mich App 187; 201 NW2d 292 (1972).
Docket No 23564 (February 17, 1976).
See MCLA 750.356; MSA 28.588:
"Any person who shall commit the offense of larceny, by stealing, of the property of another, any money, goods or chattels, or any bank note, bank bill, bond, promissory note, due bill, bill of exchange or other bill, draft, order or certificate, or any book of accounts for or concerning money or goods due or to become due, or to be delivered, or any deed or writing containing a conveyance of land, or any other valuable contract in force, or any receipt, release or defeasance, or any writ, process or public record, if the property stolen exceed the value of $100.00, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by fine of not more than $2,500.00. If the property stolen shall be of the value of $100.00 or less, such person shall be guilty of a misdemeanor.”
And MCLA 750.413; MSA 28.645:
"Any person who shall, wilfully and without authority, take possession of and drive or take away, and any person who shall assist in or be a party to such taking possession, driving or taking away of any motor vehicle, belonging to another, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years.”
See, generally, LaFave & Scott, Criminal Law, p 682, and Perkins, Criminal Law (2d ed), p 322.
Failing to report the commission of a known felony.
Agreeing not to report the commission of a known felony in exchange for some valuable consideration.
3 W & M, c 9, § 4 (1691).
1 Anne, Stat 2, c 9, § 2 (1702).
7 & 8 Geo IV, c 29, § 54 (1827).
The fact that some other states have broader statutes which encompass both the thief and those assisting in the disposition or concealment of stolen property does not serve to change Michigan’s statutory scheme. For example, California Penal Code, § 496(1), employs the operative language "buys * * * receives * * * conceals, sells, withholds or aids in concealing, selling or withholding”. Seventeen other states have adopted the language "receives, retains or disposes’’ from Model Penal Code (Proposed Official Draft, 1962), § 223.6. New York Penal Law, § 165.60 states clearly:
"In any prosecution for criminal possession of stolen property, it is no defense that:
"(2) The defendant stole or participated in the larceny of the property.” (Emphasis added.)
Larceny includes as an essential element an intent to deprive the owner of his property permanently, indicating that indefinite concealment incidental to the theft is a part of and punishable under this crime.
If the revelation of theft by the defendant is not a surprise, we anticipate that a diligent prosecutor would include both counts in the information.
If the defendant’s revelation comes in mid-trial, the prosecutor may ask the court’s permission to amend the information to include a count of larceny. See MCLA 767.76; MSA 28.1016.
MCLA 767.69; MSA 28.1009 specifically authorizes the prosecution to add an alternate count of larceny to any information charging a defendant with buying, receiving or aiding in the concealment of stolen property, and MCLA 767.63; MSA 28.1003 permits the prosecution to charge both of these crimes in any county into which the stolen property was transported, even if the larceny actually took place in another county. | [
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] |
Per Curiam.
Carl R. Ruebelman appeals from the decision of the State Bar Grievance Board which ordered him suspended from practice for 60 days and until the closing of a Wayne County Probate Court proceeding. Mr. Ruebelman does not contend on this appeal that there is inadequate support in the record for the board’s conclusions finding violations of the Code of Professional Responsibility:
"The respondent, Carl R. Ruebelman, was appointed administrator de bonis non of the estate of Eva V. Litchfield on March 17, 1971. The principal asset of the estate was a house on Geneva Avenue in the City of Highland Park. From the time of respondent’s appointment as administrator until the date of hearing on the appeal the respondent took no action toward filing an account or closing the estate. During that period of over six years he took no steps to protect the property, and as a consequence it was vandalized. His failure to pay taxes led to the loss of the property to the state for nonpayment of taxes. No effort was made by him to redeem from the state until the date of the hearing on this appeal, when he obtained a redemption by paying the taxes, interest and penalty. The conduct of the respondent constitutes gross negligence in the handling of his client’s interests and conduct prejudicial to the administration of justice.”
Instead, Mr. Ruebelman contends that there was no factual support for the penalty imposed, that the board’s amended order of discipline imposed additional penalties without stating the reasons for their imposition, and that the amended order of discipline is void for uncertainty.
As to the severity of the sanction imposed, we have reviewed the record of this proceeding and have concluded that the suspension is warranted by the facts and is not excessive. State Bar Griev ance Administrator v Posler, 393 Mich 38; 222 NW2d 511 (1974); State Bar of Michigan v Daggs, 384 Mich 729; 187 NW2d 227 (1971).
The order of discipline by the hearing panel suspended appellant for a period of 60 days and assessed costs. The board amended the period of suspension to 60 days and until the closing of the estate involved. Mr. Ruebelman argues that the board did not state its reasons for increasing the suspension by the addition of the requirement that the estate be closed before the suspension should end. We believe that the language quoted above from the board’s opinion satisfies our requirement that the board specify the acts of misconduct that are the basis for the order to provide guidance in the administration of code provisions. State Bar Grievance Administrator v Gillette, 394 Mich 1, 3; 228 NW2d 220, 222 (1975).
Mr. Ruebelman further claims that since the suspension order is effective until the closing of the estate the penalty assessed is void for uncertainty. It is not necessary that the order contain a specific date on which its effect shall end. State Bar of Michigan v Lavan, 384 Mich 624; 186 NW2d 331 (1971). The amended order of discipline states that appellant’s license to practice is:
"[H]ereby suspended for a period of 60 days and until the Estate of Eva V. Litchfield, being Probate Court File #602,803 shall be closed, and, an order entered by the probate judge closing said file.”
That order indicates with sufficient definiteness the time at which the suspension will be removed.
The amended order of discipline entered May 2, 1977 by the State Bar Grievance Board is affirmed, that order to take effect 30 days after the date this opinion is released.
Costs to appellee.
Williams, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. | [
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] |
Per Curiam.
Defendant-appellant Albert H. Wheeler asks us to review the Court of Appeals determination that pursuant to People ex rel Williams v Cicott, 16 Mich 283; 97 Am Dec 141 (1868), overruled on other grounds, Petrie v Curtis, 387 Mich 436; 196 NW2d 761 (1972), Gardner v Board of School District No 6, Leoni Twp, 248 Mich 134; 226 NW 895 (1929), and Thompson v Cihak, 254 Mich 641; 236 NW 893 (1931), the constitutional right of secrecy in voting does not extend to a person who admits that he voted without proper qualification. We reverse.
Defendant-appellant Wheeler was issued a certificate of election to the office of Mayor of the City of Ann Arbor on the basis of official election returns showing that on April 4, 1977 he had won by one vote, having received 10,660 votes.
Plaintiff-appellee Belcher began an action for quo warranto based on allegations that 23 illegal votes were cast at the election. Plaintiff claimed that 20 of the voters did not live within the city boundaries and therefore were unqualified voters even though properly registered.
In October 1977 trial commenced and the record discloses that 17 of the 20 voters were mistakenly registered in Ann Arbor and apparently in good faith had voted in the April 4, 1977 city election, although they did not live within the city boundaries. Thereafter plaintiff advised the court that he intended to recall each voter and ask for whom each illegal vote was cast. The trial court ruled that such a procedure was permissible.
When intervening-defendant-appellant Susan Van Hattum was called to the stand she refused to answer, claiming that she had a legal right not to reveal for whom she had voted. She was then held in contempt. Thereafter intervening-defendant-appellant Diane Lazinsky was recalled to the stand and also refused to answer the question on similar grounds.
The trial court then ordered a continuance of the trial so that the matter could be litigated in the Court of Appeals. That Court denied appellants’ application for leave to appeal in a per curiam opinion.
We hold that a citizen’s right to a secret ballot in all elections as guaranteed by Const 1963, art 2, § 4, cannot be so abrogated in the absence of a showing that the voter acted fraudulently. We express no opinion on the validity of the election.
The motion for immediate consideration is granted. The applications for leave to appeal are considered and pursuant to GCR 1963, 853.2(4), the decision of the Court of Appeals is reversed and this matter is remanded to the circuit court for further proceedings consistent with this opinion. The motion for stay of proceedings is denied as moot.
Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. | [
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Per Curiam.
Defendant appeals as of right following his conviction of being a second-felony offender, MCL 769.10; MSA 28.1082. Defendant was sentenced to lli to 6 years imprisonment and now appeals as of right. We vacate defendant’s conviction on the habitual offender charge and remand for further proceedings.
Defendant was convicted at a bench trial of assault of a prison employee, MCL 750.197c; MSA 28.394(3). Immediately thereafter, the parties proceeded to defendant’s supplemental information charge. After counsel waived opening argument, the prosecution asked the court to take judicial notice of (1) the outcome of the previous case, (2) defendant’s testimony in that proceeding that he was convicted of unarmed robbery in 1979, and (3) the testimony of the records keeper at the Michigan Huron Valley Men’s Facility who also testified as to defendant’s conviction for unarmed robbery. After a side-bar conference, defendant immediately objected, claiming that the court could not take judicial notice of the facts necessary to convict defendant. Instead, claimed defendant, the prosecution was required to prove each of the elements of the offense with certification or witnesses.
The court then recited the substance of MRE 201(b) addressing the kinds of facts of which the court may take notice and stated:
This Court is the trier of fact today. The only evidence before me is that of the Defendant himself. The Defendant himself admitted that he was convicted of unarmed robbery in Genesee County. And that is why he is in prison. There is further testimony from the clerk from the official records of the prison that he was convicted of an unarmed robbery on January 29, 1978 in the Circuit Court for the County of Genesee. The file was — was that admitted into evidence?
Mr. Hiller [Prosecutor]: Yes, Your Honor.
The Court: It was admitted. Those records are shown therein. There being no other evidence before me, this Court will find the Defendant guilty as charged of being an habitual offender.
Defendant’s sole contention is that there was absolutely no evidence presented by the prosecution on the habitual offender charge and that the court erred in determining issues before it on the basis of testimony and evidence from a previous trial. We reluctantly agree.
Despite the fact that the elements necessary for a conviction on the habitual offender charge appear to have been fully satisfied in defendant’s underlying trial, we cannot approve of a court taking judicial notice of the necessary elements of an offense. The law is clear that the prosecution has the burden of proving each and every element of a charged offense beyond a reasonable doubt. Our Supreme Court in People v Brownridge, 414 Mich 393, 396; 325 NW2d 125 (1982), in quoting this Court’s opinion in People v Stevens, 88 Mich App 421, 426-427; 276 NW2d 910 (1979), stated the following:
"The habitual offender proceeding, like an ordinary criminal trial, is a critical stage of a criminal prosecution. See People v Johnson, 386 Mich 305; 192 NW2d 482 (1971); People v Burton, 44 Mich App 732; 205 NW2d 873 (1973). Defendants in both instances have the right to a trial by jury, MCL 769.13; MSA 28.1085, and the prosecution must prove the charges by proof beyond a reasonable doubt. People v Covington, 70 Mich App 188, 191; 245 NW2d 558 (1976), lv den 402 Mich 843 (1977). Furthermore, the habitual offender proceeding is subject to the same evidentiary and procedural rules as a regular trial, MCL 769.13; MSA 28.1085.”
Moreover, this Court in People v Leroy, 157 Mich App 334; 403 NW2d 555 (1987), recently held that the 180-day rule applies to an habitual offender information and elaborated on the separate nature of the underlying felony trial and a subsequent habitual offender trial. The Court stated:
The procedures established for trying a defendant on an habitual offender information are remarkably similar to those used in a trial for a criminal offense.
While the panel in [People v Ungurean, 51 Mich App 262; 214 NW2d 873 (1974)] was correct to observe that the "only issue” at an habitual offender trial "relates to whether the defendant is the same person who was duly convicted of the prior felony or felonies alleged in the information,” nonetheless, a full trial with all the safeguards and trappings of a trial for a criminal offense is afforded. When we speak of habitual offender informations in briefs and opinions, we usually say that the defendant is "charged” with being an habitual offender. When a defendant pleads guilty to being an habitual offender, as here, the judge recites the entire colloquy of rights waived. The statute does not call being an habitual offender a felony or misdemeanor, but we treat it exactly as if it were, except that the sentence imposed depends on the underlying offense.
Indeed, one could say fairly that when our cases focus on the procedural aspects of habitual offender informations at all, they concentrate not on the differences between those informations and separate criminal charges, but on the similarities. [Emphasis added. Leroy, supra, pp 341-343.]
Based on the foregoing, we reluctantly conclude that defendant was not afforded a full trial with all the safeguards and trappings of a trial for a criminal offense. Leroy, supra. We therefore vacate defendant’s conviction and sentence for being a second-offense habitual offender.
Finally, defendant’s contention that double jeopardy considerations bar a retrial on the habitual offender offense is premature. This argument should be raised in the trial court if and when he is retried on this charge.
Defendant’s habitual offender conviction and sentence are vacated, and the matter is remanded. | [
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] |
Request for appointment of counsel denied.
Case below, Court of Appeals No. 26821, memorandum opinion, of February 9, 1977. | [
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] |
Holbrook, Jr., P.J.
After a jury trial, defendant was convicted of two counts of child torture, MCL 750.136a; MSA 28.331(1). A trial on the supplemental information was thereafter conducted and the jury returned a verdict of guilty as a fourth-felony offender, MCL 769.12; MSA 28.1084. Defendant was sentenced to prison terms of thirty to sixty years on each count. We reverse and remand for a new trial.
At trial, Tina Partridge testified that she accompanied defendant and defendant’s two children to a wooded area where defendant consumed three pints of whiskey over a 3- to 3ti-hour duration and also shared a marijuana cigarette with another companion. Defendant became intoxicated to the point that he had to be assisted in walking. Partridge, defendant, and the two children returned to defendant’s residence, and defendant fell asleep for 2V2 to 3 hours. When defendant awoke, he was drunk and argumentative. In order to avoid defendant, Partridge went for a walk, leaving defendant and the two children alone in the home. When Partridge returned less than five minutes later, she heard the children screaming. She entered the house and defendant accosted her, throwing her against the wall and kicking her. She did not see the children, but heard their screams and their pleas that defendant not hit them. Partridge left the home again, still hearing the children’s voices.
The children were examined by a physician and hospitalized later that evening. The physician testified in detail to the severe injuries sustained by the children, including trauma-related abrasions, swelling, bruising, and bleeding. The injuries indicated that someone either struck or threw the victims, each child sustaining multiple blows. One child sustained an abrasion to his forehead caused by a sharp object. Both children were hospitalized for two days.
Prior to opening arguments at trial, the court ruled that the charged offense of child torture was not a specific intent crime, thereby invalidating defendant’s voluntary intoxication defense. At that time, the defense attorney represented that his entire theory of the case was premised upon voluntary intoxication as a negation of specific intent. The court also rejected defendant’s request for an instruction on the defense of voluntary intoxication.
When the mental state for the commission of a crime requires a showing of a specific intent, the voluntary intoxication of the accused may operate to relieve the accused of criminal responsibility by negating the intent element. People v Sowders, 164 Mich App 36, 43-44; 417 NW2d 78 (1987); People v Flaherty, 165 Mich App 113, 123-124; 418 NW2d 695 (1987). Otherwise, the accused’s state of voluntary intoxication is no defense to a general intent offense. People v Langworthy, 416 Mich 630; 331 NW2d 171 (1982). "[T]he distinction between specific intent and general intent crimes is that the former involve a particular criminal intent beyond the act done, while the latter involve merely the intent to do the physical act.” People v Beaudin, 417 Mich 570, 573-574; 339 NW2d 461 (1983).
This case presents the question whether child torture is a specific intent crime. We undertake this question with a recognition that the previous understanding of its resolution is unclear. See CJI 17:8:05, n 1.
The child torture statute provides:
Any parent or guardian or person under whose protection or control any child may be, who tortures such child, shall be guilty of a felony and may be punished by imprisonment for not more than 10 years. [MCL 750.136a; MSA 28.331(1).]
Since the operative word "torture” is undefined, the statute itself affords minimal guidance whether the offense requires an intent directed at an end beyond the proscribed act.
Discussion of the mental element in previous decisions of this Court compels our conclusion that child torture is a specific intent crime. In rejecting the contention that the child torture statute is unconstitutionally vague, this Court in People v Webb, 128 Mich App 721, 727; 341 NW2d 191 (1983), lv den 418 Mich 966 (1984), explained the intent requirement of child torture:
Where a statutory term is not defined in the statute, it is to be given its ordinary meaning. An examination of various dictionary definitions discloses that "torture” refers to the intentional infliction of intense or severe pain for various purposes such as sadistic pleasure, coercion, and punishment. We interpret the child torture statute as requiring a showing that the defendant intentionally inflicted extreme, intense, or severe pain or injury upon the victim. This high degree of pain or injury is an additional element which is not contained in the child cruelty statute.
Subsequent panels of this Court have signaled their agreement with the Webb panel’s interpretation. People v Shelton, 138 Mich App 510, 514-515; 360 NW2d 234 (1984); People v Porterfield, 166 Mich App 562, 565; 420 NW2d 853 (1988) ("Hence, before a defendant may be convicted of child torture, it need only be shown that he intentionally inflicted extreme, intense or severe pain or injury upon the victim.”). From these cases, the principle emerges that conviction of child torture requires a showing of an intent to inflict an intensified degree of pain or injury, an intent that surpasses the commission of the proscribed act of torture. The trial court erred by depriving defendant of the defense of voluntary intoxication and by not correctly instructing the jury regarding the intent element of torture and the defense of voluntary intoxication. See CJI 17:8:05, 3:1:16, 6:1:02. We reverse and remand for a new trial.
We reject defendant’s contention that the evidence of infliction of torture was insufficient as a matter of law. Viewed in a light most favorable to the prosecution, the evidence was sufficient to permit a rational trier of fact to find defendant guilty as charged beyond a reasonable doubt. See People v Hampton, 407 Mich 354; 285 NW2d 284 (1979).
Our decision to reverse because of the erroneous rejection of the voluntary intoxication defense avoids the necessity of complete appellate review of the remainder of defendant’s claims raised in this appeal. Nevertheless, several issues are worthy of comment, and we address them briefly to provide guidance in the event that they recur upon retrial. The trial court did not err by denying defendant’s request for an instruction on the misdemeanor of aggravated assault as a lesser included offense, People v Barnett, 165 Mich App 311, 317-318; 418 NW2d 445 (1987), or by not giving sua sponte an unrequested instruction on the lesser included offense of child cruelty, People v Larry, 162 Mich App 142, 152; 412 NW2d 674 (1987). However, we do admonish the trial court in the event of retrial not to instruct the jury that statements of defense counsel containing an admission of fact are attributable to defendant and may be considered as evidence. Papke v Tribbey, 68 Mich App 130, 137; 242 NW2d 38 (1976), lv den 399 Mich 834 (1977); CJI 3:1:09(5). We express no opinion on the contention that the trial court abused its discretion by ruling that defendant could be impeached by evidence of prior convictions, but instead we direct the court to reconsider this matter in light of the change in the law effected after the trial in this case by People v Allen, 429 Mich 558; 420 NW2d 499 (1988), in the event that this issue recurs upon retrial.
Reversed and remanded.
Murphy, J., concurred.
In People v Biegajski, 122 Mich App 215, 220-224; 332 NW2d 413 (1982), lv den 417 Mich 1080 (1983), this Court, in its rejection of the defendant’s claim that convictions for child cruelty and child torture violated the prohibition against double jeopardy, distinguished child torture from child cruelty on the basis that the former requires a purpose underlying the infliction of pain other than punishment, e.g., sadism, but cruelty is confined to instances of cruel or unlawful punishment. This pronouncement is contrary to the holdings of Webb, Shelton, and Porterñeld. Since, however, the reasoning in Biegajski is not inconsistent with our conclusion that child torture is a crime of specific intent, we need not address the conflict between Biegajski and the Webb line of cases.
Effective September 1, 1988, the child torture statute, MCL 750.136a; MSA 28.331(1), as well as the child cruelty statute, MCL 750.136; MSA 28.331, have been repealed and replaced with four degrees of child abuse. MCL 750.136b; MSA 28.331(2). | [
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McDonald, J.
Plaintiff appeals as of right from a May 29, 1987, order granting defendant’s motion for summary disposition under MCR 2.116(0(10) in plaintiffs action seeking to modify or vacate an arbitrator’s opinion and award made pursuant to a collective bargaining agreement. We affirm.
On April 22, 1986, Lincoln Park Police Officer Randall Noder was charged with violating four sections of the Lincoln Park Police Department’s rules and regulations: § 24A(1), conduct unbecoming an officer; § 31D, truthfulness; § 24A(3), reporting police activities; and § 22E, requiring the recording of each activity in which an officer becomes involved. All four violations were the result of one act in which Officer Noder engaged in an improper consensual act of a sexual nature with the complaining witness after responding to her call for assistance and while on duty. Following the act, Officer Noder failed to note his visit to the complainant’s home in his log book and failed to file a report on the incident. When questioned the next day, Officer Noder denied engaging in a sexual act the preceding night. However, on the following day Noder gave another statement in which he admitted he lied in his initial statement and truthfully set forth the events occurring at the complainant’s home.
After a full hearing by the Lincoln Park Commission of Public Safety on May 1, 1986, Officer Noder was discharged by the city for violating the various sections of the rules and regulations of the police department. Following his discharge, Office Noder filed a grievance pursuant to the collective bargaining agreement between the City of Lincoln Park and the Lincoln Park Police Officers Association.
The grievance remained unresolved and was submitted to final and binding arbitration. On January 12, 1987, the arbitrator issued his opinion and award which set aside the dismissal and ordered a one-year suspension without pay or benefits, and one-year probation to commence upon Noder’s return to the force.
Plaintiff filed the instant complaint seeking to modify or vacate the arbitrator’s opinion and award. Defendant counterclaimed seeking to enforce the arbitrator’s award according to its terms. Both parties moved for summary disposition pursuant to MCR 2.116(0(10). Following hearings on the motions, the trial court entered an order granting defendant’s motion for summary disposition. It is from this order plaintiff now appeals.
On appeal plaintiff first claims the trial court erred in enforcing the arbitration award, claiming the award did not draw its essence from the contract. We disagree.
The necessary inquiry for this Court’s determination is whether the award was beyond the contractual authority of the arbitrator. Labor arbitration is a product of contract and an arbitrator’s authority to resolve a dispute arising out of the appropriate interpretation of a collective bargaining agreement is derived exclusively from the contractual agreement of the parties. Port Huron Area School Dist v Port Huron Ed Ass’n, 426 Mich 143; 393 NW2d 811 (1986). It is well settled that judicial review of an arbitrator’s decision is limited. A court may not review an arbitrator’s factual findings or decision on the merits. Port Huron, supra. Rather, a court may only decide whether the arbitrator’s award "draws its essence” from the contract. If the arbitrator in granting the award did not disregard the terms of his employment and the scope of his authority as expressly circumscribed in the contract, judicial review effectively ceases. Port Huron, supra; Ferndale Ed Ass’n v School Dist for City of Ferndale No 1, 67 Mich App 637; 242 NW2d 478 (1976).
We believe the instant award "draws its essence” from the contract. Article XVIII(a) of the collective bargaining agreement at issue in the instant case provides:
No member shall be discharged or otherwise disciplined except for just cause. The claim of any member that he has been unjustly discharged or otherwise disciplined shall be processed as a grievance.
Article XVIII(f), step 4, provides:
The arbitrator shall limit his decisions strictly to the interpretation, application or enforcement of the specific articles and sections of the agreement, and it shall be without power or authority to make any decisions.
Rule 33J of the department’s rules and regulations provides:
Any member or employee of the Department may be dismissed from the service or suffer such punishment as may be directed by the Commission of Public Safety when such member or employee has been charged with and found guilty of the commission of a felony or misdemeanor under any law or ordinance, or any act or omission contrary to good order or a violation of any of the provisions of the Rules and Regulations of the Department. [Emphasis added.]
It is undisputed that Officer Noder violated the rules and regulations of the department. However, rule 33J makes the penalty of discharge optional. Moreover, article XVIII(f), step 4, defines the arbitrator’s scope of authority as limiting his decision to "interpretation, application or enforcement of the specific articles and sections of the agreement.” In the absence of clear and unambiguous language to the contrary in the collective bargaining agreement, an arbitrator may determine that, while the employee is guilty of some infraction, the infraction does not amount to just cause for discharge and impose a less severe penalty. Mon roe Co Sheriff v Fraternal Order of Police, 136 Mich App 709; 357 NW2d 744 (1984).
Thus, acting pursuant to the agreement, the arbitrator in the instant case was free to determine that Officer Noder’s dismissal was not justified. Moreover, as the Supreme Court stated in United Paperworkers International Union, AFL-CIO v Misco, Inc, 484 US —; 108 S Ct 364; 98 L Ed 2d 286, 299 (1987): "Where it is contemplated the arbitrator will determine remedies for contract violations that he finds, courts have no authority to disagree with his honest judgment in that respect.”
We therefore find no error in the trial court’s enforcement of the arbitrator’s decision and order. Plaintiffs reliance on Bd of Control of Ferris State College v Michigan AFSCME Council 25, Local 1609, 138 Mich App 170; 361 NW2d 342 (1984), is misplaced. In Ferris State College, this Court held that an arbitrator exceeded his contractual authority by reinstating a grievant after expressly finding that just cause existed for dismissal. In the instant case, no just cause for dismissal was found.
Plaintiff next contends the trial court erred in enforcing the arbitrator’s award claiming the award is contrary to public policy. We disagree.
In United Paperworkers, supra, 98 L Ed 2d 302, the Supreme Court, relying upon its earlier decision in W R Grace & Co v Rubber Workers, 461 US 757; 103 S Ct 2177; 76 L Ed 2d 298 (1983), held:
In W. R. Grace, we recognized that "a court may not enforce a collective-bargaining agreement that is contrary to public policy,” and stated that "the question of public policy is ultimately one for resolution by the courts.” 461 US, at 766, 76 L Ed 2d 298, 103 S Ct 2177. We cautioned, however, that a court’s refusal to enforce an arbitrator’s interpretation of such contracts is limited to situations where the contract as interpreted would violate "some explicit public policy” that is "well defined and dominant, and is to be ascertained 'by reference to the laws and legal precedents and not from general considerations of supposed public interest.’ ” Ibid, (quoting Muschany v United States, 324 US 49, 66, 89 L Ed 744, 65 S Ct 441 (1945). [See Lansing Community College v Lansing Community College Chapter of the Michigan Ass’n for Higher Education (On Rem), 171 Mich App 172; 429 NW2d 619 (1988).]
The Supreme Court explained that a court’s refusal to enforce an arbitrator’s decision because it violates public policy is a specific application of the more general doctrine, rooted in the common law, that a court may refuse to enforce contracts that violate law or public policy. United Paperworkers, supra.
Although we have recognized the public policy exception to the usual deference given to an arbitrator’s award, Saginaw v Teamsters Local 129, 136 Mich App 542; 358 NW2d 356 (1984), there has been no case in which an arbitrator’s award was vacated as violative of public policy. Nor do we believe plaintiff in the instant case has pointed to "some explicit public policy that is well defined and dominant” and which is ascertained "by reference to the laws and legal precedents and not from general considerations of supposed public interests.” United Paperworkers, supra, 98 L Ed 2d 302.
Although we do not condone Officer Noder’s actions, the arbitrator’s award reinstating him was not itself unlawful, for there is no legal proscription against the reinstatement of a person such as the grievant. The award did not otherwise have the effect of mandating any illegal conduct or cause the employer to act unlawfully. United Paperworkers, supra, see also W R Grace & Co, su pra. We therefore find enforcement of the award does not contravene public policy.
Affirmed. | [
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] |
Griffin, J.
Plaintiffs Geneva and Edmond Kelley appeal as of right from a judgment of no cause of action entered pursuant to a jury verdict on their claim of medical malpractice against defendant E. C. Murray, D.O. Plaintiffs-appellants allege several errors, one of which we find dispositive. Specifically, we agree with appellants that the lower court committed error requiring reversal by reading to the jury portions of the inapplicable tort reform acts and by permitting extensive cross-examination as to their provisions. We reverse and remand for a new trial.
i
On October 18, 1985, plaintiffs filed a complaint against defendant E. C. Murray, D.O. Plaintiffs’ complaint alleged medical malpractice in connection with an October 21, 1983, Caldwell-Louc procedure performed by the defendant which allegedly resulted in plaintiff Geneva Kelley’s suffering double vision, numbness on the right side of her face, nausea, recurring pain behind her eye, and lowering of the right eye.
Trial of the malpractice case against otolaryngologist (ear, nose, and throat specialist) Dr. Murray commenced February 4, 1988. During the four day trial, each side presented one expert witness on the issue whether Dr. Murray had breached the applicable standard of care. Plaintiffs’ expert was board certified otolaryngologist John Warren Grigg, M.D. Dr. Grigg was licensed to practice medicine in 1956 and board certified in otolaryngology in 1964. From 1981 through the time of trial, Dr. Grigg was an assistant clinical professor at the Wayne State University School of Medicine. His surgical teaching included the Caldwell-Louc procedure utilized in the present case. From 1982 through January 1985, Dr. Grigg also attended law school. Dr. Grigg was duly admitted to the State Bar of Michigan in May, 1985. At the time of trial, Dr. Grigg testified that he devotes approximately fifty percent of his time to his medical practice and fifty percent to his law practice.
After extensive voir dire, the trial judge qualified Dr. Grigg as an expert witness. The lower court in applying the standards of MRE 702 ruled that Dr. Grigg was qualified by "knowledge, skill, experience, training, or education” to testify as to the alleged breach of the required standard of care. Defendant-appellee did not object below to the qualification of Dr. Grigg as an expert witness.
During the trial, defense counsel, over plaintiffs’ objection, extensively cross-examined Dr. Grigg in regard to the medical expert qualification provisions of the tort reform acts of 1986. Although defendant conceded that the acts were inapplicable to the instant case, it was asserted that the new and more stringent qualification provisions were relevant. The argument was made that the jury had a right to know that the law had been changed and, further, that the jury should be allowed to consider the new standards in weighing the quality of the expert testimony.
During cross-examination, defense counsel sought to establish that, had the tort reform acts been applicable, Dr. Grigg may not have qualified as an expert witness during the time Grigg was attending law school. Further, it was suggested that Dr. Grigg resumed his medical practice only to qualify as a medical expert under the new act.
The trial judge, after permitting such cross-examination by defense counsel, decided to read to the jury the inapplicable statute:
The Court: Why don’t we just tell the jury, so they can understand this, what the statute provides. It does not require that an expert necessar ily meet these qualifications in this case because the case was started before the act was passed. But cross out the part having to do with (indiscernible) that doesn’t have anything to do with this case simply says, "In an action alleging medical malpractice if the defendant is a specialist a person shall not give expert testimony on the appropriate standard of care unless the person is or was a physician licensed to practice medicine or osteopathic medicine and surgery in this or another state that meets both of the following criteria. First, specializes or specialized at the time of the occurrence, which is the basis for the action, in the same specialty or a related relevant area of medicine or osteopathic medicine and surgery as the specialist who is the defendant in the medical malpractice action. And, second, devotes, or devoted at the time of the occurrence, which is the basis for the action, a substantial portion of his or her professional time to the active clinical practice of medicine or osteopathic medicine and surgery, or to the instruction of students in an accredited medical school, or osteopathic medical school in the same specialty or a related relevant area of health care as the specialist who is the defendant in the medical malpractice action.” Now I think the jury can understand the inquiry as a whole lot better because they know what the statute says.
Defense counsel then asked Dr. Grigg whether Grigg would have been qualified as an expert witness prior to the resumption of his medical practice if the new standards had been in effect. Timely objection to the cross-examination and reading of the statute was made by plaintiffs’ counsel. On appeal, plaintiffs Kelley argue that their case was severely prejudiced by the introduction of this inapplicable statute. We agree.
ii
In 1986, the Michigan Legislature passed a se ries of bills commonly referred to as the tort reform acts of 1986. One of the acts (178 PA 1986, effective October 1, 1986) established new and more stringent standards for the qualification of expert witnesses in medical malpractice actions:
Sec. 2169. (1) In an action alleging medical malpractice, if the defendant is a specialist, a person shall not give expert testimony on the appropriate standard of care unless the person is or was a physician licensed to practice medicine or osteopathic medicine and surgery or a dentist licensed to practice dentistry in this or another state and meets both of the following criteria:
(a) Specializes, or specialized at the time of the occurrence which is the basis for the action, in the same specialty or a related, relevant area of medicine or osteopathic medicine and surgery or dentistry as the specialist who is the defendant in the medical malpractice action.
(b) Devotes, or devoted at the time of the occurrence which is the basis for the action, a substantial portion of his or her professional time to the active clinical practice of medicine or osteopathic medicine and surgery or the active clinical practice of dentistry, or to the instruction of students in an accredited medical school, osteopathic medical school, or dental school in the same specialty or a related, relevant area of health care as the specialist who is the defendant in the medical malpractice action. [MCL 600.2169; MSA 27A.2169.]
The Legislature intended the act to be prospective, not retroactive, in application. Section three of the statute provides that the new standards "shall apply to cases filed on or after October 1, 1986.” It is undisputed that the complaint in the present case was filed before this date and therefore the act and its new standards were inapplicable.
m
The issue whether a witness qualifies as an expert is a question to be decided by the court. Further, the decision of the trial judge to qualify or not to qualify a proposed expert witness will not be overturned absent an abuse of discretion:
The determination of whether an expert witness is qualified to testify rests within the sound discretion of the trial court, and this Court will not reverse the trial court’s determination of a witness’s status unless there has been an abuse of that discretion. [People v Potter, 115 Mich App 125, 132; 320 NW2d 313 (1982).]
The general rule in Michigan regarding qualification of expert witnesses is MRE 702:
If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. [MRE 702, emphasis added.]
MRE 702 deviates from its federal counterpart FRE 702 by adding after the word "if” the phrase "the court determines that recognized.” The Michigan Supreme Court added the above phrase to the proposed rule to emphasize the role of the trial judge. The judge, not the jury, qualifies experts, determines whether an expert is needed to assist the trier of fact, and decides whether the field of expertise is generally recognized and accepted.
Defendant’s argument that the inapplicable provisions are relevant to the jury’s task of weighing expert testimony is unpersuasive. Michigan’s stan dard civil jury instructions recommend that "no instruction on 'weighing expert testimony’ be given.” SJI2d 4.10. The credibility of expert witnesses is addressed by SJI2d 4.01 which covers all witnesses:
You are the sole judges of the facts in this case and must determine which witnesses you will believe and what weight you will give to their testimony. In doing so you may take into account each witness’s ability and opportunity to observe, [his/or/her] memory, [his/or/her] manner while testifying, any interest, bias or prejudice [he/or/ she] may have, and the reasonableness of [his/or/ her] testimony considered in the light of all the evidence in the case.
Where the standard jury instructions recommend that no instruction be given, the court shall not give an instruction on the matter unless it specifically finds for reasons stated on the record that the instruction is necessary to accurately state the applicable law. MCR 2.516(D)(3). In the instant case, the trial court advised the jury as to the new law concerning expert witness qualifications even though the statute had no application to the lawsuit. The lower court’s action not only obviated the Legislature’s intent of not applying the statute retroactively but also muddled the roles of the judge and jury in qualifying experts. Reading the statute to the jury did not materially aid the jury in arriving at a just verdict. On the contrary, the court infused unfair prejudice against plaintiffs’ expert witness.
rv
We also hold that the trial court abused its discretion by permitting extensive cross-examina tion of Dr. Grigg regarding the inapplicable tort reform acts. The relevance of this line of inquiry was remote at best. The unfair prejudice in applying by implication an inapplicable law substantially outweighed any probative value. MRE 403.
Finally, defendant-appellee Murray argues that the plaintiffs failed to preserve these errors on appeal by failing to request a curative instruction. We disagree. The record reveals that plaintiffs’ counsel diligently and repeatedly placed his objections on the record. The issues are accordingly preserved. MCR 2.516(C). Additionally, we note that a curative instruction could not have corrected the error.
Reversed and remanded for a new trial. | [
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Per Curiam.
In this action, the trial court
granted summary disposition in favor of defendant JohnKal, Inc., on the basis that plaintiffs had failed to comply with the name and retain provisions of the dramshop act. MCL 436.22(5); MSA 18.993(5). The order did not, however, state under which rule summary disposition was being granted. Subsequently, the claims against the remaining parties were settled and the action dismissed. Plaintiffs now appeal, challenging the order of summary disposition in favor of defendant JohnKal. We affirm.
This action arises out of a four-car accident that occurred on September 28, 1984, in Kalamazoo County. Plaintiff Timothy Shay was driving a car northbound on Riverview Drive with his wife, plaintiff Rosemary Shay, as a passenger. Defendant James Miles, who was driving a vehicle owned by his father, defendant Thomas Miles, pulled out of a side street into the path of defendant Charles Byars, who was driving his father’s pickup truck. The Byars vehicle struck the Miles vehicle and careened off of it into the oncoming lane, striking plaintiffs’ vehicle head on. Defendant Phelps was in the fourth vehicle, traveling northbound behind the Shays, and struck the Shay vehicle from behind.
Plaintiffs filed suit alleging, inter alia, that defendants JohnKal and Big Daddy’s West served liquor to Charles Byars when he was visibly intoxicated. The matter was submitted to mediation, which resulted in an award in plaintiffs’ favor in the following amounts: (1) $35,000 as to the Byarses, (2) $13,000 as to defendant Miles, (3) $15,000 as to defendant JohnKal, (4) $1,000 as to defendant Phelps, and (5) $1,000 as to defendant Big Daddy’s West. The awards were accepted by plaintiffs and defendants Byars, Phelps and Big Daddy’s. Defendants Miles and JohnKal rejected the awards.
A $35,000 judgment was entered in favor of plaintiffs and against defendants Byars pursuant to the acceptance of the mediation award. Judgments were also entered on the mediation awards as to defendants Phelps and Big Daddy’s. Following the entry of judgment, defendant JohnKal moved for dismissal on the basis that the alleged intoxicated person, Charles Byars, was no longer retained in the suit. The trial court granted the motion and entered an order of summary disposition in favor of defendant JohnKal. The remaining claims against defendant Miles were subsequently settled and the litigation concluded.
Plaintiffs’ sole issue on appeal is that the trial court erred in granting summary disposition to defendant JohnKal on the basis of the name and retain clause of the dramshop act. We disagree.
This Court, in Bodell v Califf, 164 Mich App 95; 416 NW2d 341 (1987), considered the effect of mediation on the name and retain clause. Specifically, the plaintiff in Bodell submitted to mediation, resulting in a mediation award in the plaintiff’s favor against the alleged intoxicated person which the plaintiff accepted. Thereafter, the action against the dramshop defendant was dismissed under the name and retain clause. This Court affirmed the dismissal against the dramshop defendant, concluding that acceptance of the mediation award did not excuse the plaintiff from the mandatory provisions of the name and retain clause.
The case at bar does differ somewhat from Bodell in that, in Bodell, the plaintiff was not obligated to submit to mediation but had voluntarily done so. The Bodell Court specifically noted that the plaintiff had voluntarily submitted to mediation in reaching its conclusion. Id. at 98. On the other hand, in the case at bar, plaintiffs were obligated to submit to mediation pursuant to the provisions of a local court rule. Plaintiffs argue that the name and retain provision conflicts with the court rule requiring mediation and that, since a court rule takes precedence over a statute, the mandatory mediation rule renders the name and retain clause of the statute inapplicable. We disagree.
Although a plaintiff may be obligated to submit a cause to mediation, he is not obligated to accept the mediation award. Furthermore, even where a plaintiff desires to accept a mediation award both as to the alleged intoxicated person and the dram-shop defendant, but would not wish to accept the award as to the alleged intoxicated person if that acceptance resulted in the dismissal of the action against the dramshop defendant, the plaintiff may condition acceptance of the award as to the alleged intoxicated person upon the acceptance of the award by the dramshop defendant. See MCR 2.403(L)(3)(b). We recognize that the name and retain clause makes a plaintiff’s decision to accept or reject a mediation award more difficult. This is particularly true in light of the sanction provisions under MCR 2.403(0), which result in a plaintiff risking either a dismissal against the dramshop defendant if mediation is accepted or sanctions if mediation is rejected. However, while the mutual effects of the name and retain clause in mandatory mediation render a party’s decision more difficult, we do not believe that it causes such a conflict as to render one of the two rules unenforceable. Rather, a plaintiff in a dramshop action must make that difficult decision after weighing the mediation award in light of the possibility of either a dismissal against the dramshop defendant or the imposition of sanctions.
While we disagree with plaintiffs’ position, that is not to say plaintiffs do not raise some valid points. Specifically, we agree that mediation abates the problem of collusion between the plaintiff and the alleged intoxicated person which the name and retain clause is designed to prevent. However, while we might agree that acceptance of a mediation award by a plaintiff as to an alleged intoxicated person should be an exception to the name and retain clause, it is not the role of the judiciary to carve out such an exception. Rather, that is an issue which should be addressed to the Legislature.
Similarly, we note that the sanction provisions of the mediation rule may result in some unintended harsh results in this type of case. The policy behind the mediation rule may be better served if the sanctions against a plaintiff in a dramshop action were to be shifted from the plaintiff to the dramshop defendant where the plaintiff conditionally accepted an award against the alleged intoxicated person resulting in a rejection because of the rejection by the dramshop defen dant. Such a change, however, must be addressed by the Supreme Court. Similarly, it would appear that, under MCR 2.403(L)(3)(b), the conditional acceptance by a plaintiff as to the alleged intoxicated person must be conditioned upon the acceptance of the mediation award by all defendants rather than a particular defendant. That is, under that rule it appears that a plaintiff may not condition his acceptance of a mediation award as to the alleged intoxicated person only upon the acceptance of the award by the dramshop defendant independent of acceptance by any other defendant in the action. An appropriate amendment to the rule might allow a plaintiff in a dramshop action to condition his acceptance of an award as to the alleged intoxicated person solely upon the acceptance of the award as to a dramshop defendant. Again, however, this is an issue which must be addressed to the Supreme Court.
For the above reasons, we conclude that acceptance of a mediation award by a plaintiff in a dramshop action does not excuse the plaintiff from complying with the name and retain clause. While this case suggests that justice may be better served by some well considered changes to the name and retain clause and the mediation rules, it is beyond the scope of this Court’s authority to make those changes. Accordingly, we are constrained to affirm the decision of the trial court and we leave it to the Legislature and the Supreme Court to determine what changes, if any, should be made to the applicable statutes and court rules.
Affirmed. Defendant may tax costs.
Following an amendment in 1986, the name and retain clause can now be found in MCL 436.22(6); MSA 18.993(6). The amendment did not, however, affect the substantive provisions of the name and retain clause.
For that matter, defendant’s motion did not cite to the applicable court rule provision, merely entitling itself a motion to dismiss and alleging that the name and retain provision had been violated.
See Oleksy v Sisters of Mercy of Lansing, Michigan, 74 Mich App 374, 381; 253 NW2d 772 (1977). | [
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On order of the Court, a tender of resignation of the office of Clerk of this Court having been received from Donald F. Winters, to be effective December 31, 1974, the same is hereby accepted by the Court, to be effective on that date.
It is hereby further ordered that Harold Hoag is appointed Clerk of this Court, to be effective January 1,1975. | [
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ORDER
Entered November 21, 1974. — Reporter.
On order of the Court, the application for leave to appeal is considered, and the same hereby is denied, because the appellant has failed to persuade the Court that, the questions presented should be reviewed by this Court. In denying leave, this Court does not wish to be understood as accepting the distinction between felony and premeditated murder in the application of the rule enunciated in People v Allen, 390 Mich 383; 212 NW2d 21 (1973), drawn by the Court of Appeals in deciding this case. | [
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Motion for the production of a free copy of the transcript of the January 31, 1974 indigency hearing, treated by the Court as a motion for the preparation and production of a copy of the aforementioned transcript is considered, and the same is granted November 21, 1974. The Court reserves the question of who shall ultimately pay the costs for such preparation and copy.
Reported below: 48 Mich App 437. | [
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] |
On order of the Court, the request by the Governor for an advisory opinion on 1974 PA 272 is hereby considered. The Court respectfully declines such request because the questions presented concerning constitutional issues under §§ 2, 3, and 5 of Art I of the Constitution are so broad that any advisory opinion of the Court would depend for resolution on whatever particular factual situations the Court would be forced to hypothesize. The Court would be forced to deal with the constitutional issues abstractly, in terms of sterile legal questions. The risk is too great in this instance. The Court’s conclusions would be sterile and unrelated to the actualities which only future events will réveal. See Advisory Opinion re Constitutionality of1972PA 294, 389 Mich 441, 482-487 (1972).
T. M. Kavanagh, J., not participating. | [
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