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Shepherd, J.
Plaintiff appeals as of right from a Grand Traverse Circuit Court order granting custody of Rebekah Dawn Hastings to defendant, the child’s natural mother. Plaintiff is the child’s aunt, the sister of Rebekah’s natural father. We vacate the circuit court’s order based on a lack of subject matter jurisdiction to entertain the third-party petition for custody and dismiss the case.
Defendant, Velma Ruth Hastings, and her husband, Tom Hastings, left their daughter Rebekah, born March 8, 1977, in the temporary care of the plaintiff, Tom Hastings’ sister, in April, 1984. At the time defendant was unable to care for her child because she was mentally ill. In August, 1984, defendant and her husband returned to Michigan and took the child home to Louisiana with them but returned the child to plaintiff within a week. Defendant and her husband made plans to again pick up their daughter in December, 1984, but those plans were interrupted by Tom Hastings’ death in an automobile accident on December 17, 1984. At the funeral in Michigan, defendant agreed with the Hastings family to leave Rebekah with the plaintiff until defendant could relocate near her family in California. Unbeknownst to defendant, plaintiff had already filed a petition in the circuit court for permanent custody of the child and obtained an ex parte restraining order preventing the child’s removal from Michigan. Defendant learned of the restraining order and petition for custody in April, 1985, after she had bought a round-trip airline ticket for her daughter to visit her in California.
A full hearing on plaintiff’s complaint for custody was held on August 8, 1985. At the conclusion of the hearing, the circuit court found that defendant’s mental illness was in remission and that it was in the child’s best interests to be returned to her mother. Rebekah is currently in her mother’s custody in California.
The sole issue raised and addressed by the parties on appeal is whether the circuit court abused its discretion by finding that it was in the child’s best interests to be returned to the custody of her mother. We find it unnecessary to address this issue since under Ruppel v Lesner, 421 Mich 559; 364 NW2d 665 (1984), the circuit court lacked the authority to entertain a third-party complaint for custody under the circumstances of this case. We note that jurisdiction of subject matter may be raised at any stage of the proceedings and such jurisdiction can never be conferred by the actions of the parties. See e.g., Goodman v Bay Castings Division of Gulf & Western Industries, 49 Mich App 611, 625; 212 NW2d 799 (1973); Millman Brothers, Inc v Detroit, 2 Mich App 161, 166; 139 NW2d 139 (1966).
The Supreme Court in Ruppel, supra, addressed the issue of a third-party (nonparent) action for custody under the Child Custody Act, MCL 722.21 et seq.; MSA 25.312(1) et seq. In that case the child left the parents’ home after an argument and went to a friend’s home. She was later taken to a juvenile home where she continued to refuse to return to the parents’ home. See Ruppel v Lesner, 127 Mich App 567; 339 NW2d 49 (1983), rev’d 421 Mich 559 (1984). The child’s grandparents filed a petition for a change of custody under the Child Custody Act. The child’s parents opposed this action. Custody was awarded to the grandparents by the circuit court and this Court affirmed that award. However, the Michigan Supreme Court reversed and held:
We conclude that where a child is living with its parents, and divorce or separate maintenance proceedings have not been instituted, and there has been no finding of parental unfitness in an appropriate proceeding, the circuit court lacks the authority to enter an order giving custody to a third party over the parents’ objection. The Child Custody Act does not create substantive rights of entitlement to custody of a child. Rather, it creates presumptions and standards by which competing claims to the right of custody are to be judged, sets forth procedures to be followed in litigation regarding such claims, and authorizes the forms of relief available in the circuit court. While custody may be awarded to grandparents or other third parties according to the best interests of the child in an appropriate case (typically involving divorce), nothing in the Child Custody Act, nor in any other authority of which we are aware, authorizes a nonparent to create a child custody "dispute” by simply filing a complaint in circuit court alleging that giving custody to the third party is in the "best interests of the child.” When, as in this case, the third parties are close relatives of the child, we must remember that, except for limited visitation rights, grandparents have no greater claim to custody than any other relative, or indeed any other persons. The rule adopted by the Court of Appeals would permit any person to file a circuit court action asking for change of custody of a child living with parents who were not involved in a divorce or separation procedure. We think it clear that the Legislature contemplated no such result. [421 Mich pp 565-566.]
It is possible to argue that the Ruppel holding creates three exceptions to the general rule that third parties cannot bring a custody action: (1) where divorce or separate maintenance proceedings have been instituted; (2) where there has been a finding of parental unfitness under MCL 712A.19a; MSA 27.3178(598.19a); or (3) where a child is not living with his or her parents. However, we believe that the Supreme Court did not intend to create a third exemption where the child is not living with his or her parents. The Supreme Court held that the Child Custody Act "does not create substantive rights of entitlement to custody of a child.” Id., p 565. It further stated that "nothing in the Child Custody Act, nor in any other authority of which we are aware, authorizes a nonparent to create a child custody 'dispute’ by simply filing a complaint in circuit court alleging that giving custody to the third party is in the 'best interests of the child.’ ” Id., p 566. We con- elude that the correct characterization of the Supreme Court’s holding is that a nonparent may not institute a custody action in circuit court. However, once judicial intervention has already taken place (such as in divorce proceedings), the court may, in limited circumstances, award custody to a third party. Our interpretation of the Ruppel holding is consistent with that given it by Justice Levin in his dissent.
Plaintiff was not without a forum. Plaintiff could have sought to have defendant declared an unfit parent in probate court based on abandonment, or neglect, or mental illness and thereby could have sought to terminate parental rights under the juvenile code pursuant to MCL 712A.19a; MSA 27.3178(598.19a). Under MCL 712A.11; MSA 27.3178(598.11), any person may give information to the juvenile division of the probate court that a child "is within the provision of this chapter” and, if authorized by the probate court, may file a petition requesting that the court acquire formal jurisdiction over the child. See OAG, 1916, p 175 (September 29, 1915). Once the probate court had properly assumed jurisdiction and properly terminated or suspended defendant’s parental rights, plaintiff could have petitioned the probate court to be appointed guardian pursuant to MCL 700.424; MSA 27.5424. See Ruppel, supra, p 565, n 5.
Under Ruppel, the circuit court lacked authority even to entertain plaintiff’s complaint for custody. Accordingly we vacate the circuit court’s order for lack of subject matter jurisdiction and dismiss the case. MCR 7.216(A)(1). | [
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Shepherd, J.
Plaintiff appeals as of right from the summary judgments entered in favor of defendant in the two actions brought by plaintiff. In both cases, the trial court based the grants of summary judgment upon the governmental immunity claimed by defendant.
On February 26, 1979, plaintiff’s decedent, John Mendoza, was made a delinquent state ward and remanded to defendant youth home. He had previously been held in the youth home in connection with the same charge from September, 1978, to January, 1979, but had been released on bond under "house restriction” to his own home until final disposition was made in February, 1979. On February 27, 1979, apparently the day after he was sent to defendant youth home, at approximately 8:30 p.m., Mendoza hanged himself in his room. He died in a hospital approximately ten days later.
Complaints were filed in November, 1981, by plaintiff as personal representative of the estate of Mendoza and as guardian for the estate of Rosa Fonseca, Mendoza’s mother. In March, 1982, plaintiff moved to amend the complaint on behalf of Mendoza’s estate. In April, 1982, defendant moved for summary judgment based on governmental immunity. As a result of the motions for summary judgment, plaintiff’s complaints were dismissed with the provision that she would be allowed to amend. After her amended complaints were filed, the trial court entered its opinion and order granting summary judgment as to both actions. Plaintiff raises four issues on appeal, one of which is meritorious.
Plaintiff first argues that her amended complaints adequately alleged an intentional tort. Since no governmental immunity exists for intentional torts, plaintiff argues that summary judgment as to those claims was improper. In Count II of each of her amended complaints, plaintiff alleged that defendant intentionally, wilfully, and wantonly caused Mendoza’s death. Essentially the same allegation was made in Count II of each of her initial complaints except that there plaintiff had not alleged that defendant’s conduct was intentional.
It now appears to be well settled in Michigan law that an intentional tort is not within the exercise or discharge of a governmental function. Governmental immunity is therefore not available as a defense to an intentional tort. Lockaby v Wayne County, 406 Mich 65; 276 NW2d 1 (1979); Graves v Wayne County, 124 Mich App 36; 333 NW2d 740 (1983). A governmental agency may be liable for an employee’s intentional misconduct under the doctrine of respondeat superior. Graves, supra; Gaston v Becker, 111 Mich App 692; 314 NW2d 728 (1981).
However, not all intentional activity constitutes an intentional tort. See Randall v Delta Charter Twp, 121 Mich App 26; 328 NW2d 562 (1982); Jacobs v Dep’t of Mental Health, 88 Mich App 503; 276 NW2d 627 (1979). In Elliott v Dep’t of Social Services, 124 Mich App 124; 333 NW2d 603 (1983), this Court recently noted:
"The Randall opinion emphasizes, and common sense indicates, that negligence is not transformed into an intentional tort by merely alleging that defendant’s activity was intentional, wilful, and in conscious disregard of the consequences. Otherwise governmental immunity from tort liability would be eliminated. As clarified by Randall and Smith’s [Smith v State of Michigan, 122 Mich App 340; 333 NW2d 50 (1983)] careful analysis, the criterion employed by a majority of the Supreme Court in determining whether governmental immunity applies is whether the plaintiff has pleaded facts showing tortious activity which is outside the exercise or discharge of the governmental function. Merely characterizing activity as 'wilful’, 'intentional’, and 'in conscious disregard of the consequences’ is not dispositive.” Elliott, supra, pp 128-129. (Emphasis in original.)
Applying the Randall analysis, we conclude that the trial judge did not err in granting summary judgment as to plaintiffs claim of intentional tort in each case. Count II of each of plaintiffs amended complaints consisted of the same conclusionary allegations made in her initial complaints. No facts were pled by plaintiff which showed that an intentional tort had been committed. In fact, plaintiff did not actually label the intentional tort which defendant was supposed to have committed. In Elliott, supra, this Court supported the limitation on the characterization of intentional torts proposed in Randall. Citing Randall, this Court said:
" 'The Supreme Court’s decisions concerning the avoidance of governmental immunity where intentional torts are involved relate to torts such as assault, Lockaby, supra, and intentional interference with economic relations, defamation and slander, McCann [v State of Michigan, 398 Mich 65; 247 NW2d 521 (1976)]. This Court has also ruled that immunity is not available where claims such as conversion, Willis v Ed Hudson Towing, Inc, 109 Mich App 344; 311 NW2d 776 (1981), trespass, Madajski v Bay County Dep’t of Public Works, 99 Mich App 158; 297 NW2d 642 (1980), and other similar claims are involved. All of these decisions have involved claims concerning activities which have traditionally been regarded as intentional torts. In our opinion, for purposes of determining governmental immunity, where the complained-of act is one of omission, rather than commission, the claim cannot be characterized as an intentional tort.’ Randall, p 26.” Elliott, supra, p 130.
As to Count II of each complaint, therefore, summary judgment was proper.
Plaintiff next argues that, even if she failed to plead an intentional tort in avoidance of governmental immunity, the conduct of defendant was ministerial and therefore no immunity attached thereto. At present, this Court is split on whether the discretionary/ministerial test or the scope of employment test is the proper standard to apply when determining whether government employees are immune from tort actions. Cf. Layton v Quinn, 120 Mich App 708; 328 NW2d 95 (1982); Lewis v Beecher School System, 118 Mich App 105; 324 NW2d 779 (1982).
The discretionary/ministerial debate is relevant, however, only where individual employees are named as defendants. See Willis v Neinow, 113 Mich App 30, 38-40; 317 NW2d 273 (1982); Armstrong v Boss Twp, 82 Mich App 77, 83-84; 266 NW2d 674 (1978). Since plaintiff failed to commence suit against individual employees of defendant, and did not raise this argument before the trial court, this Court need not and will not review this issue.
Plaintiff next claims that defendant failed to properly maintain its premises, which were defective under the public building exception to governmental immunity. That statutory exception provides in pertinent part:
"Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or take action reasonably necessary to protect the public against the condition.” MCL 691.1406; MSA 3.996(106).
The statute sets forth the elements of proof of the action: (1) defect(s); (2) knowledge; and (3) failure to act.
Plaintiffs amended complaint alleges in relevant part:
"6. That such injury and resultant death was proximately caused by the intentional, grossly negligent, negligent acts and/or wilful and wanton misconduct of the defendant, by and through its agents, servants and/ or employees, by such acts, including, but not limited to:
"a. Failing to maintain its premises in a reasonably safe condition;
"b. Failing to hire competent, careful and knowledgeable agents, servants and/or employees to maintain, inspect and repair its premises so as to render same in a reasonably safe condition;”
Plaintiff, however, failed to sufficiently plead the statutory defect exception to immunity in her complaint. First, even if it can be said that plaintiff alleged that defendant failed to act, there is no specific allegation of a defect. Second, plaintiff did not mention the statute in her complaint. She now suggests that the allegations in support of her negligence claim, in fact, constituted a defective building claim. We disagree.
The building exception is not a negligence action. In Weaver v Duff Norton Co, 115 Mich App 286; 320 NW2d 248 (1982), this Court precluded reliance on the exception to avoid a motion for summary judgment where plaintiff failed to plead the statutory exception and had alleged negligence instead. It appears that, in the instant case, plaintiff discovered the statutory exception too late, since the exception was neither in the complaint nor, from the record before us, does it appear that it was raised before the trial court. Summary judgment on this issue was therefore proper.
Finally, plaintiff argues that the trial court erred in dismissing her 42 USC 1983 claim for deprivation of the rights guaranteed Mendoza by the Eighth Amendment to the United States Constitution. The Eighth Amendment is applicable to this state through the Fourteenth Amendment. Estelle v Gamble, 429 US 97; 97 S Ct 285; 50 L Ed 2d 251 (1976); Robinson v California, 370 US 660; 82 S Ct 1417; 8 L Ed 2d 758 (1962). Cruel and unusual punishment prohibited by the Eighth Amendment may include the denial of medical or psychological treatment. In O'Bryan v Saginaw County, 437 F Supp 582, 596 (ED Mich, 1977), the court said:
"In determining whether the conditions of confinement constitute cruel and unusual punishment, the Courts have increasingly viewed the effect of the incarceration on the individual. Prison conditions should not threaten a prisoner’s sanity or physical or mental health”.
In Westlake v Lucas, 537 F2d 857 (CA 6, 1976), a prisoner appealed the dismissal of his 42 USC 1983 action stemming from the denial of medical treatment for a bleeding ulcer. The complaint was dismissed for failure to state a claim upon which relief could be granted. The Sixth Circuit said:
"This Court has recognized that under some circumstances the denial of medical care to a prisoner may give rise to a violation of Fourteenth Amendment due process.” 537 F2d 859.
The Sixth Circuit recognized that other courts had based the right to treatment on the Eighth Amendment. 537 F2d 859, fn 2. The rationale for reliance on the Fourteenth Amendment was set forth:
" 'The logic of these pronouncements is not difficult to perceive. An individual incarcerated, whether for a term of life for the commission of some heinous crime, or merely for the night to "dry out” in the local drunk tank, becomes both vulnerable and dependent upon the state to provide certain simple and basic human needs. Examples are food, shelter, and sanitation. Facilities may be primitive, but they must be adequate. Medical care is another such need. Denial of necessary medical attention may well result in disabilities beyond that contemplated by the incarceration itself. The result may be crippling injury, as alleged here, or * * * the very deprivation of life itself, since, restrained by the authority of the state, the individual cannot himself seek medical aid or provide the other necessities for sustaining life and health.’ ” 537 F2d 860, quoting Fitzke v Shappell, 468 F2d 1072, 1076 (CA 6, 1972). (Emphasis in original.)
The Sixth Circuit then held:
"In our view, Appellant has adequately stated a cause of action for deprivation of needed medical care and the District Court was in error in dismissing the case at the pleading stage. Appellant has alleged that he was forced to endure a period of intense discomfort because his pleas for medical assistance went unheeded by his jailers. He should have the opportunity to prove the truth of his allegations at an evidentiary hearing. Appellees should be directed to respond to Appellant’s complaint and, should the trier of fact conclude that Appellant’s accusations are true, the District Court is empowered to grant complete relief.” 537 F2d 861.
Westlake was among the cases cited by the United States Supreme Court in Estelle v Gamble, supra, where Gamble brought a § 1983 action, complaining of the treatment he received after an injury. He claimed that he had been subjected to cruel and unusual punishment in violation of the Eighth Amendment. The district court, sua sponte, dismissed the complaint for failure to state a claim upon which relief could be granted. The court of appeals reversed and certiorari was granted.
After a review of several decisions interpreting the Eighth Amendment, the Supreme Court said:
"We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain,’ Gregg v Georgia [428 US 153; 96 S Ct 2909; 49 L Ed 2d 859 (1976)], at 173 (joint opinion), proscribed by the Eighth Amendment.” 429 US 104.
The Supreme Court then set forth the appropriate standard for pleadings in avoidance of dismissal:
"In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend 'evolving standards of decency’ in violation of the Eighth Amendment.” 429 US 106.
Recently, the requirements of Estelle, supra, and Westlake, supra, were again applied by the Sixth Circuit in Byrd v Wilson, 701 F2d 592 (CA 6, 1983). In Byrd, the district court dismissed the prisoner’s § 1983 complaint which had alleged inadequate medical treatment. The Sixth Circuit reversed, finding that a valid cause of action was stated. The panel concluded:
"Since Westlake establishes the validity of a claim for deliberate indifference, this Court concludes that the district court’s dismissal of this complaint as frivolous was clearly erroneous. Although the denial and/or in difference to appellant’s medical needs existed for only a short period of time, the complaint still satisfies the standards articulated in Estelle and Westlake and withstands the test of frivolity. Therefore, the appellant is entitled the opportunity to offer his proof.” 701 F2d 595.
This issue was fully examined and discussed in Brewer v Perrin, 132 Mich App 520; 349 NW2d 198 (1984). We adopt with approval the analysis of the § 1983 issue provided in that case, which clearly supports the existence of a valid § 1983 action where incarcerated persons are not provided with necessary medical or psychological treatment.
In the instant case, summary judgment was granted pursuant to GCR 1963, 117.2(1) rather than GCR 1963, 117.2(3), the basis for summary judgment in Brewer, supra. A motion based on GCR 1963, 117.2(1) for failure to state a claim is to be tested by the pleadings alone and tests the legal basis of the complaint, not whether it can be factually supported. Partrich v Muscat, 84 Mich App 724, 729; 270 NW2d 506 (1978). Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery, the motion should be denied. Brosnan v Livonia Public Schools, 123 Mich App 377; 333 NW2d 288 (1983); Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426; 202 NW2d 577 (1972).
In the instant case, plaintiff alleged in her complaints that defendant was deliberately indifferent to Mendoza’s need for medical and/or psychological attention. Plaintiff also alleged that the need was serious and that defendant knew or should have known of Mendoza’s depressed condition and his need for attention.
We believe that these allegations were sufficient, when taken with the facts contained in plaintiff’s complaints, to state a valid cause of action under 42 USC 1983. The claims were therefore not clearly unenforceable and plaintiff was entitled to offer further factual development of her claims. Summary judgment as to this issue was improvidently granted and plaintiff’s § 1983 claims on behalf of John Mendoza and on behalf of Rosa Fonseca are reinstated.
Affirmed in part; reversed in part.
Remanded. No costs, neither party having prevailed in full.
While in general the cases relevant to this issue involve prisons rather than youth homes, we do not find the difference controlling. Mendoza was made a delinquent ward of the state and remanded to defendant youth home. He was not allowed to leave and was dependent upon defendant’s personnel for medical treatment.
In general, a person may not sue for the deprivation of civil rights of others. O’Malley v Brierley, 477 F2d 785, 789 (CA 3, 1973). An exception to this rule exists, however, where a state gives a parent a claim for a minor’s wrongful death. See Mattis v Schnarr, 502 F2d 588 (CA 8, 1974); Smith v Wickline, 396 F Supp 555 (WD Okla, 1975). Under Michigan’s wrongful death statute, MCL 600.2922; MSA 27A.2922, decedent’s mother, as a member of the class entitled to inherit the decedent’s personal property had he died intestate, had a right to bring such an action. Plaintiff is therefore entitled to raise § 1983 claims on behalf of both the decedent and his mother. | [
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Per Curiam.
On July 26, 1983, this Court remanded the case of People v Harris, to the trial court for a hearing on the defendant’s claim that the 180-day rule was violated. MCL 780.131; MSA 28.969(1). People v Hill, 402 Mich 272; 262 NW2d 641 (1978). The trial court conducted its hearing and issued findings dated October 19, 1983. We retained jurisdiction and now review the 180-day issue in conjunction with the court’s findings. The defendant’s conviction and sentence for armed robbery, MCL 750.529; MSA 28.797, are vacated.
After reviewing the record, we conclude that docket congestion caused the delay in trying the defendant. This is an inadequate excuse for violating the 180-day rule. People v Moore, 96 Mich App 754; 293 NW2d 700 (1980). We are sympathetic to the plight of trial courts, which must try increasing numbers of cases with generally inadequate facilities. The trial judge indicated that a string of intervening trials pushed back this defendant’s trial date. We must note, however, that several of these cases were civil cases, in which a party’s constitutional and statutory rights to a speedy trial are not involved. The record does not disclose whether the intervening criminal cases were sufficient to have caused the violation of the 180-day rule.
Defense-generated delays, such as the motion for appointment of an investigator, occurred after 180 days had run from the date of arrest (and incarceration). They did not contribute to the delay which concerns us.
Because the delay here exceeded 180 days, the trial court lost jurisdiction to try this case.' MCL 780.133; MSA 28.969(3). Accordingly, we vacate the defendant’s conviction for armed robbery and the corresponding sentence of 6 to 15 years imprisonment. | [
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Per Curiam.
Respondents appeal as of right from a ruling by the circuit court reversing a decision by a hearing referee for the Department of Social Services Bureau of Administrative Hear ings that the claimants were ineligible for Aid to Dependent Children — Foster Care (ADC-F) grants.
Claimants in this action are probate court wards placed in the care of the Department of Social Services. The court orders placing these children with the department, however, require co-supervision by the department and the probate court. Pursuant to these orders, the probate court involves its own workers in the daily supervision and care of these children. The department either denied or proposed to terminate ADC-F assistance for claimants who then requested and received an administrative hearing on the denials and proposed terminations. The hearing referee found claimants to be ineligible for ADC-F funds. The claimants then filed a petition for review in the circuit court which reversed the decision of the hearing referee. Respondents appeal from the decision of the circuit court.
On appeal, respondents argue that since the administrative decision was supported by competent, substantial, and material evidence and is not contrary to law, MCL 24.306; MSA 3.560(206); Soto v Director of Michigan Dep’t of Social Services, 73 Mich App 263; 251 NW2d 292 (1977), the circuit court erred by reversing. We agree and reverse the decision of the circuit court, adopting the following portions of the decision of the hearing referee as our own:
"The ADC program is established pursuant to the Social Security Act [42 USC 301 et seq.]. It is implemented by Title 45 of the Code of Federal Regulations (CFR). ADC-F is administered in Michigan by the DSS pursuant to MCL 400.10; MSA 16.410 and the departmental guidelines contained in the Services Manual (SM).
"The department decided to terminate ADC-F benefits to the claimant in accordance with SM Item B-810, p 1. Specifically, the claimant is ineligible for ADC-F because the probate court order did not provide the DSS with the sole responsibility for the placement and care of the claimant while in a foster care facility. On the other hand, the claimant contends that the reservation of sole or partial authority by the probate court of the responsibility for the placement and care of the probate child is not material in determining the eligibility of a foster child for ADC.
"45 CFR 205.100(a)(l)(i) requires: '[a] state plan for financial assistance under * * * title IV-A * * * of the Social Security Act must: [p]rovide for the establishment or designation of a single state agency with authority to administer or supervise the administration of the plan.’ The DSS is designated as the state agency to cooperate with the federal government in the administration of the state plan. MCL 400.2, 400.10; MSA 16.402, 16.410. As the state agency under 45 CFR 205.100(a)(l)(i), the DSS cannot delegate to other than its own officials its authority for exercising administrative discretion in the administration or supervision of the state plan. 45 CFR 205.100(b)(1).
"The conditions of eligibility for ADC-F are set forth in § 608(a) of the Social Security Act, 42 USC 608(a). Further, the eligibility requirements are provided in 45 CFR 233.110 and the state plan adopted by the State of Michigan.
"45 CFR 233.110(a)(l)(iii) requires, in part, the payment of ADC-F for a child:
" 'Whose placement and care are the responsibility of the State agency administering or supervising the administration of the AFDC plan, or, if the State so elects, are the responsibility of any other public agency, or type or types of public agencies specified in the plan, with whom the State agency has a currently effective agreement that provides for development of a plan satisfactory to the State agency for AFDC-FC children ‡ ‡ ?
"Under the Michigan state plan, the DSS assumes the responsibility for placement and care in all cases.
"The statutory language in § 608(a) of the Social Security Act can only be reasonably interpreted as meaning that the sole responsibility for placement and care of a child must rest with the state agency (DSS). In construing § 608(a)(2)(A) of the Social Security Act, the hearing referee cannot ignore the interpretation rendered by Health and Human Services (HHS). See Miller v Youakim [440 US 125, 144; 99 S Ct 957, 969; 59 L Ed 2d 194, 208 (1979)].
"In its letter dated 1-7-80, HHS made it abundantly clear that the sole or dual supervision [by the probate court] of a child who is potentially eligible for ADC-F is not acceptable. A similar interpretation by HHS can be found in the Handbook of Public Assistance, Part IV, § 3452.
"After reviewing the probate court order admitted into evidence, the hearing referee must conclude that the claimant is not eligible for ADC-F. The probate court has failed to vest the sole responsibility for the placement and care of the claimant in the department. Therefore, the department was correct in proposing the termination of the ADC-F to the claimant.
"The hearing referee, based upon the above findings of fact and conclusions of law, decides that the claimant is not eligible for ADC-F.”
Reversed. | [
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Per Curiam.
Plaintiff was seriously injured when a short stairway he was descending collapsed as he held a 50-pound block of ice over his head in an effort to load it onto his parked truck. Plaintiff filed a claim for no-fault benefits. Defendant insurance carriers denied the claim and a lawsuit was filed. Thereafter, the trial court granted defendants’ motion for summary judgment, GCR 1963, 117.2(3). Plaintiff filed an application for leave to file a delayed appeal from the trial court’s ruling, which was granted by this Court.
Plaintiff claims that the trial court erred as a matter of law in ruling that his injuries did not arise out of the ownership, operation, maintenance or use of a motor vehicle. MCL 500.3105(1); MSA 24.13105(1). Specifically, plaintiff claims that he is entitled to no-fault benefits under both subsection (b) and (c) of MCL 500.3106; MSA 24.13106.
"Sec. 3106. 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.”
We hold that plaintiffs claim that he is entitled to benefits under MCL 500.3106(b) is meritorious. In Arnold v Auto-Owners Ins Co, 84 Mich App 75; 269 NW2d 311 (1978), lv den 405 Mich 804 (1979), the plaintiff ruptured a disc in his back while he was lifting a ramp onto the upper deck of his employer’s truck. Defendant insurance companies contended that the injury was not compensable under § 3106(b) because it was not caused by physical contact with the equipment permanently mounted on the vehicle. This Court reversed the lower court’s grant of summary judgment for the insurance companies, holding:
"[W]e conclude that § 3106(b) makes compensable injuries which are a direct result of physical contact with property being lifted onto or lowered from the parked vehicle in the loading or unloading process.” Arnold, supra, p 80.
We find that whether or not plaintiff is entitled to benefits for any injury that occurs while, and not as a result of, loading property onto a vehicle is an open question. Cf. Block v Citizens Ins Co of America, 111 Mich App 106; 314 NW2d 536 (1981); Dembinski v Aetna Casualty & Surety Co, 76 Mich App 181; 256 NW2d 69 (1977).
Additionally, we find that it is a question of fact whether plaintiffs contact with the ice directly resulted in his injury. It appears that plaintiff was injured when the stairs collapsed under him as he held a block of ice over his head while in the process of loading his truck. The stairway broke because of the combined weight of plaintiff and the block of ice. Defendant’s brief admits that "[l]ogic would dictate that the stairway gave way under the weight of the plaintiff and the block of ice”. In that respect, applying the commonly approved usage of the language, "physical contact” with the "property being lifted” during the loading process could arguably have "directly resulted” in causing plaintiffs injury. The weight of the ice may have been the straw that broke the camel’s back.
For the above stated reasons, we hold that summary judgment was improperly granted under MCL 500.3106(b).
Plaintiffs claim that he is entitled to benefits under MCL 500.3106(c) is without merit. Subsection (c) is not applicable because the plaintiff was not occupying, entering into, or alighting from the truck when he was injured. Dowdy v Motorland Ins Co, 97 Mich App 242, 247-252; 293 NW2d 782 (1980). As such, summary judgment on this ground was proper.
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Per Curiam.
Plaintiff Lillie Mae Wood appeals by leave granted from the trial judge’s order for partial summary judgment in favor of defendants. The order dismissed that part of plaintiffs’ complaint alleging noneconomic loss as the result of injuries plaintiff sustained in an automobile accident in 1981. The court determined that plaintiff’s injury did not meet the threshold of serious impairment of body function under the no fault act, MCL 500.3135(1); MSA 24.13135(1).
Plaintiff’s injuries arose out of an automobile accident on August 23, 1981, in Wayne County. Plaintiff was operating her vehicle, stopped at a red light, when she was struck from behind by defendant’s van. The impact of the collision caused plaintiff to be thrown first forward toward her windshield, then backward in the automobile. It caused the front seat to be torn free from the floor. Emergency personnel who responded to the scene of the accident applied a cervical collar to plaintiff’s neck and transported her to the Redford Community Hospital emergency room. She was treated and x-rayed at the hospital and was diagnosed as having a sprained cervical spine. She was prescribed pain medication and, upon her release, was instructed to return in two days for follow-up treatment.
On August 28, 1981, plaintiff began treating with Dr. Neil S. Millman, D.O. She complained of neck pain, restriction of movement in her neck and back, pain radiating into both of her legs, insomnia, chest pains and headaches. Dr. Millman diagnosed plaintiff as having cervical myositis with frozen neck syndrome and temporary radicular pain, sacroiliac synovitis, insomnia and depression. For two months following the accident, plaintiff treated with Dr. Millman twice a week, and continued to have treatments once a week thereafter. To date, she still sees Dr. Millman on a weekly basis. In addition, for some period of time, plaintiff was forced to use a cane to walk and wore a back brace every day. Although plaintiff has been able to dispose of the cane, she still is forced to wear the brace on a regular basis.
In July, 1982, plaintiff was hospitalized for ten days as a result of these injuries. There, she received daily traction and underwent a series of tests. An electromyographic examination taken at the hospital revealed a positive result, indicating that plaintiff suffered from "diffuse irritation of lumbosacral nerve root.” Defendants admitted at the hearing on their motion that plaintiff indeed suffers from this condition. After being released from the hospital, plaintiff was confined to her bed and a chair for one month and, except for medical appointments, was further confined to her home for an additional three months.
In August, 1983, plaintiff was treated by Dr. T. A. Podolsky on a referral from Dr. Millman. Dr. Podolsky performed on plaintiff a thermographic examination, which revealed a result consistent with the nerve root irritation diagnosis. Additionally, plaintiff is being treated by a chiropractor on a regular basis.
Prior to her accident, plaintiff was employed at the Boniface Group Home, apparently as a cook and housekeeper. Since her accident, plaintiff was unable to return to work for approximately ZVi years despite several attempts to do so. For the first year following her accident, she was ordered by Dr. Millman not to work; subsequently, upon attempting to return to work on a number of occasions, she found she was unable to carry out her duties. Apparently, she was able to return to work in January, 1985, but not without limitations.
Plaintiffs claim for damages for noneconomic injuries is based upon MCL 500.3135; MSA 24.13135. This statute states:
(1) A person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of a body function, or permanent serious disfigurement.
When there is no material factual dispute as to the nature and extent of a plaintiffs injuries, the question of serious impairment of body function shall be decided as a matter of law by the court. Cassidy v McGovern, 415 Mich 483, 502; 330 NW2d 22 (1982). Since Cassidy, this Court has identified three basic requirements which must be met before an injury can be said to constitute a serious impairment of body function: (1) the injury must be objectively manifested, (2) an important body function must be impaired by the injury, and (3) the impairment of that body function must be serious. Walker v Caldwell, 148 Mich App 827, 831-832; 385 NW2d 703 (1986). Whether an impairment is serious should be viewed in light of the other threshold requirements contained in the no-fault act: death and permanent serious disfigurement. Williams v Payne, 131 Mich App 403; 346 NW2d 564 (1984).
Defendants in the case at bar have admitted two of the above criteria. First, they admit that plain tiff has suffered lumbosacral nerve root irritation. This injury was objectively manifested in the electromyographic examination of plaintiff given during her 1982 hospitalization and in a subsequent thermogram. Second, defendants have implicitly admitted that this injury has affected an important body function, i.e., plaintiffs ability to walk. They vehemently deny, however, that plaintiff has sustained any injury or impairment that can be interpreted to be serious. We disagree.
When determining whether an impairment of a body function is "serious,” the general question asked is whether the plaintiffs ability to lead a normal life has been impaired. Cassidy, supra, p 505; Braden v Lee, 133 Mich App 215, 218; 348 NW2d 63 (1984); Page v Clark, 142 Mich App 697, 699; 370 NW2d 15 (1985). This interference must be significant and affect the plaintiff over an extended period of time. Guerrero v Schoolmeester, 135 Mich App 742, 750-751; 356 NW2d 251 (1984), lv den 422 Mich 881 (1985). While an impairment need not be permanent to be serious, the permanency of the injury is a factor to be considered in the final analysis. Cassidy, supra, pp 505-506; Franz v Woods, 145 Mich App 169, 173; 377 NW2d 373 (1985).
The undisputed facts presented by plaintiff indicate that she has been unable to lead a normal life since her accident. It is uncontested that, still five years after the accident, she wears a back brace almost continuously, treats with two doctors on a weekly basis and takes pain medication. She was unable to return to work for 3Vi years despite several attempts to do so. Moreover, her ability to participate in social and recreational activities and perform daily household chores has been severely hampered. In light of these uncontested facts, plaintiff has not lived a normal life since her accident.
Accordingly, whether we view this case in the light most favorable to the plaintiff, or under the "clearly erroneous” standard, see Kelleher v Kuchta, 138 Mich App 45; 359 NW2d 224 (1984), we reverse the trial court’s decision and conclude as a matter of law that plaintiff suffered a serious impairment of body function.
Reversed and remanded for further proceedings not inconsistent with this decision.
Defendants do claim however that many of the facts outlined in plaintiffs brief, as well as plaintiffs exhibits d through m, were not part of the lower court record. The trial court in the instant case did not specifically state which records it reviewed in making its determination that plaintiff had not suffered a serious impairment. This lack of clarity, found frequently in Cassidy cases, makes appellate review of the trial court’s decision extremely difficult. Nonetheless, we assume that the lower court reviewed only the facts and exhibits contained in the parties’ briefs on the motion below.
We recognize that this Court’s post-Cassidy decisions have made it extremely difficult for plaintiffs to recover for soft tissue injuries by concluding that such injuries in each particular case did not constitute a serious impairment of body function. This is particularly due to the fact that it is difficult for claimants with soft tissue injuries to satisfy the objective manifestation requirements. See e.g. Franz v Woods, supra, 145 Mich App 174. The no-fault act however makes no distinction between claimants with soft tissue injuries and those with other injuries. Thus, in a case like this, where plaintiff’s soft tissue injuries were objectively manifested, a determination that they did not constitute a serious impairment of bodily function would effectively ignore the fact the injury has prevented plaintiff from leading a "normal life style.” | [
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Per Curiam.
Respondent Secretary of State appeals as of right from an October 16, 1985, circuit court order allowing restricted driving privileges to petitioner William C. Paulson.
On August 14, 1978, petitioner was convicted of operating a motor vehicle while under the influence of liquor in violation of Wisconsin law by a Wisconsin court. On November 19, 1980, petitioner was again convicted of operating a motor vehicle while under the influence of liquor in violation of Wisconsin law by a Wisconsin court.
Petitioner’s driver’s license was suspended and then revoked by the Secretary of State in 1981 pursuant to MCL 257.303; MSA 9.2003 because of his second conviction of operating a motor vehicle while under the influence of liquor within a seven-year period. However, the revocation was terminated and a restricted license ordered issued by a Secretary of State hearing officer on April 6, 1981.
On February 20, 1984, petitioner was again convicted of operating a motor vehicle while under the influence of alcohol in violation of Wisconsin law, which was his third conviction of that offense within a seven-year period.
On July 10, 1984, the Secretary of State revoked petitioner’s driver’s license through July 11, 1989, pursuant to MCL 257.303; MSA 9.2003, because he had two or more convictions of operating a motor vehicle while under the influence of liquor within a seven-year period and his license had been suspended in the preceding seven years. The revocation was subject to modification by a driver license appeal hearing officer or a circuit court.
On March 20, 1985, petitioner was convicted in the 95A District Court at Menominee, Michigan (sentencing court) of operating a motor vehicle while under the influence of intoxicating liquor in violation of MCL 257.625; MSA 9.2325 within seven years of a prior conviction of a law of another state (Wisconsin) substantially corresponding thereto. The clerk of the sentencing court completed an abstract of conviction form with respect to petitioner’s conviction and the sentence imposed, which was sent to the Secretary of State and stated that petitioner’s driver’s license was to be suspended for two years.
The Secretary of State complied with the sentencing court’s order that petitioner’s driver’s license be suspended for two years.
On or about July 29, 1985, petitioner commenced this cause by filing a petition for an order staying suspension of his driver’s license and setting aside or modifying said suspension pursuant to MCL 257.323; MSA 9.2023 and MCL 257.323a; MSA 9.2023(1). He petitioned for a modification of the suspension of his driver’s license which would allow him to drive between his residence and place of employment.
On October 1, 1985, a hearing was held upon the petition and a certified copy of petitioner’s individual driving record was received as evidence, which states:
. . . Menominee Dist Court Order. Susp from 03/20/85 thru 03/20/87 ....
The hearing was devoted to petitioner’s testimony concerning his need to drive and his driving record. The lower court granted petitioner the relief requested even though relief from the sentencing court’s order in the March 20, 1985, sentencing of petitioner is not authorized or available in an action, such as this action, pursuant to MCL 257.323; MSA 9.2023. The circuit court order allowing restrictive operator’s privileges was entered on October 16, 1985. The order provided that the March 20, 1985, suspension of petitioner’s driver’s license was modified and a restricted license was to be issued.
On November 6, 1985, the Secretary of State filed a claim of appeal from the circuit court order allowing restrictive operator’s privileges.
The facts in this case are undisputed. Petitioner was convicted of operating a motor vehicle while under the influence of intoxicating liquor in violation of a Wisconsin law substantially corresponding to MCL 257.625; MSA 9.2325 in 1978, 1980, and 1984. Petitioner was convicted by the 95A District Court (sentencing court) on March 20, 1985, of operating a motor vehicle while under the influence of intoxicating liquor in violation of MCL 257.625; MSA 9.2325, within seven years of a prior conviction of violating a law of another state substantially corresponding thereto. The sentencing court clerk sent the Secretary of State an abstract of conviction, which reported that the sentencing court had ordered petitioner’s driver’s license to be suspended for two years as part of his sentence. The Secretary of State complied with the sentencing court’s order and suspended petitioner’s driver’s license from March 20, 1985, through March 20, 1987. Petitioner elected not to appeal his conviction and to seek to have the sentencing court’s order for the suspension of his driver’s license stayed pursuant to MCL 257.625; MSA 9.2325. Instead, petitioner commenced this action to review and set aside or modify the Secretary of State’s compliance with the sentencing court’s order pursuant to MCL 257.323; MSA 9.2023, which specifically does not apply to or authorize this action.
MCL 257.625; MSA 9.2325 requires a sentencing court to order the Secretary of State to revoke the driver’s license of a person convicted of a violation of its terms within seven years of a previous conviction of the statute or a law of another state substantially corresponding to it. While it is not possible from the record in this case to determine whether the sentencing court did order the revocation of petitioner’s driver’s license and the clerk merely failed to place an "r” for revoked on the abstract of conviction sent to the Secretary of State or whether the sentencing court actually ordered the suspension instead of revocation of petitioner’s driver’s license, such distinction is immaterial. Petitioner could not seek and the lower court could not enter an order requiring the Secretary of State to issue a restricted license pursuant to MCL 257.323; MSA 9.2023 and MCL 257.323c; MSA 9.2023(3) until the expiration of the two-year period.
Lack of jurisdiction of the subject matter may be raised at any time and the parties to an action cannot confer jurisdiction by their conduct or ac tion nor can they waive the defense by not raising it. People v McKinnon, 139 Mich App 362, 368; 362 NW2d 809 (1984); Farmers Bank v Rabideau, 131 Mich App 302, 306; 346 NW2d 97 (1983); Millman Brothers, Inc v Detroit, 2 Mich App 161, 166-167; 139 NW2d 139 (1966). A court is bound to take notice of the limits of its jurisdiction even though the question is not raised, Fox v Bd of Regents of the University of Michigan, 375 Mich 238, 242; 134 NW2d 146 (1965); Michigan State Chamber of Commerce v Secretary of State, 122 Mich App 611, 616-617; 332 NW2d 547 (1983). Thus, the lower court was obligated to take notice of the limits of its jurisdiction to enter an order granting petitioner relief. A review of the vehicle code would have shown that the lower court lacked jurisdiction to review the Secretary of State’s suspension of petitioner’s driver’s license.
The Legislature clearly intended to require persons dissatisfied with orders to the Secretary of State regarding their sentences for convictions of violating MCL 257.625; MSA 9.2325 to appeal their convictions and seek stays of the orders under that section of the vehicle code and not to commence an action against the Secretary of State such as this case. This intent is clearly expressed in MCL 257.625; MSA 9.2325 and MCL 257.323; MSA 9.2023.
MCL 257.625; MSA 9.2325, the criminal law which petitioner was convicted of violating and sentenced under, provides in pertinent part:
(8) Before imposing sentence for violation of subsection (1) . . ., the court shall order the person to undergo screening and assessment by a person or agency designated by the office of substance abuse services, to determine whether the person is likely to benefit from rehabilitative services, including alcohol or drug education and alcohol or drug treatment programs. As part of the sentence, the court may order the person to participate in and successfully complete 1 or more appropriate rehabilitative programs. . . .
(9) Before accepting a plea of guilty under this section, the court shall advise the accused of the statutory consequences possible as the result of a plea of guilty in respect to suspension or revocation of an operator’s or chauffeur’s license, the penalty imposed for violation of this section, and the limitation on the right of appeal.
(10) The operator’s or chauffeur’s license of a person found guilty of violating subsection (1) . . ., shall be surrendered to the court in which the person was convicted, and the court shall immediately forward the surrendered license and an abstract of conviction to the secretary of state. The abstract of conviction shall indicate the sentence imposed. Upon receipt of, and pursuant to the abstract of conviction, the secretary of state shall suspend or revoke the person’s license .... If the conviction is appealed to circuit court, that court may, ex parte, order the secretary of state to rescind the suspension, revocation, or restricted license issued pursuant to this section.
MCL 257.323; MSA 9.2023, the statute providing for appeals from the Secretary of State’s suspensions and revocations of driver’s licenses and the statutory basis for this action, provides in pertinent part:
(1) A person who is aggrieved by a final determination of the secretary of state . . . revoking, suspending, ... an operator’s or chauffeur’s license . . . may petition for a review of the determination ... in the circuit court in the county of residence of the person.
(5) This section shall not apply to a denial, revocation, suspension, or restriction imposed pur suant to a court order issued as part of the sentence for of [sic] a conviction of a violation of section 625 of [sic] 625b ....
The plain, clear, and unambiguous language quoted above clearly establishes the Legislature’s intent to prohibit appeals from the Secretary of State’s suspension or revocation of driver’s licenses of persons convicted of violating MCL 257.625; MSA 9.2325 pursuant to the orders entered as part of those persons’ sentences. The reason for this prohibition is clear. One of a sentencing court’s prime considerations in sentencing a person is the protection of society, based on the offense and offender, Hobrla v Glass, 143 Mich App 616, 628-629; 372 NW2d 630 (1985), and its orders to protect society should only be modified by a direct appeal. Therefore, the lower court did not have subject matter jurisdiction under the vehicle code to review the Secretary of State’s suspension of petitioner’s driver’s license and enter the order allowing restrictive operator’s privileges. Taurianen v Secretary of State, 69 Mich App 318, 320; 244 NW2d 462 (1976); Balcain v Secretary of State, 361 Mich 570; 106 NW2d 160 (1960); Putz v Secretary of State, 69 Mich App 78; 244 NW2d 337 (1975).
The circuit court in this case lacked jurisdiction to modify or set aside the Secretary of State’s suspension or revocation of petitioner’s driver’s license when the suspension or revocation was pursuant to another court’s order as part of the sentence for a conviction of violating MCL 257.625; MSA 9.2325. The order allowing restrictive operator’s privileges is reversed and vacated. | [
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J. C. Timms, J.
Bay City Education Association, Bay City Public Schools Secretarial/Clerical Association, and Nonacademic School Employees Association (hereafter the unions) appeal as of right from a decision and order of the Michigan Employment Relations Commission dated April 15, 1985, holding that Bay City Public Schools (hereafter school district) had no duty to bargain with respect to its decision to transfer the operation of its special education program to the Bay-Arenac Intermediate School District. We reverse.
The facts of this case are uncontested. On February 8, 1982, the board of education of the school district at a regular meeting voted to transfer the operation and responsibility for its special education program to the intermediate school district as a cost saving measure. Early in March, the school district received letters from each of the unions claiming that the decision to transfer services was a mandatory subject of bargaining and demanding that the school district submit the matter for negotiation. The school district answered that it had no legal duty to bargain over its decision.
On April 1, 1982, the unions filed an unfair labor practice charge with merc.
On May 20, 1982, the first of two hearings was held before the hearing referee. A second hearing was held March 15, 1983, and on July 18, 1984, the hearing referee entered his decision and recommended order. On August 8, 1984, the unions filed exceptions to the hearing referee’s decision and recommended order and on April 18, 1985, merc affirmed the hearing referee’s decision. On May 13, 1985, the unions filed a motion for rehearing and reconsideration which was denied by merc on June 24, 1985. This claim of appeal was filed on July 6, 1985.
Two issues are raised. First, this Court must determine whether the decision of the school district to transfer the operation of its special education program to the intermediate school district is a mandatory subject of bargaining under the public employment relations act, MCL 423.201 et seq.; MSA 17.455(1) et seq. Second, we must determine whether this appeal was timely filed.
i
The thrust of the school district’s position is that for a number of reasons, but primarily a lack of financial support, it "got out of the special education business” and claims it has the prerogative to terminate a portion of its business for financial reasons without engaging in collective bargaining.
On the other hand the unions, which represent school district employees whose positions would be terminated, contend that the school district has "subcontracted” the responsibility to provide special education services and that subcontracted work, which was formerly performed by members of the bargaining unit, is a mandatory subject of bargaining under pera.
Simply stated, the unions contend that if the local school district has the ultimate responsibility for providing special education services it can not "get out of the special education business,” and has merely "subcontracted” these services.
Article hi of the School Code, MCL 380.1701 et seq.; MSA 15.41701 et seq., provides for special education services. The State Board of Education has the duty to "[d]evelop, establish, and continually evaluate and modify” a state plan for special education in cooperation with the intermediate school districts, MCL 380.1701(a); MSA 15.41701(a), and the intermediate school districts have this same duty to "[d]evelop, establish, and continually evaluate and modify” intermediate district plans for special education in cooperation with their constituent districts, MCL 380.1711(1)(a); MSA 15.41711(1)(a).
However, MCL 380.1751(1); MSA 15.41751(1) provides in part:
(1) The board of a local school district shall provide special education programs and services designed to develop the maximum potential of each handicapped person in its district on record under § 1711 for whom an appropriate educational or training program can be provided in accordance with the intermediate school district’s special education plan, in either of the following ways or a combination thereof:
(a) Operate the special education program or service.
(b) Contract with its intermediate school board, another intermediate school board, another local school district board, an adjacent school district board in a bordering state, the Michigan School for the Blind, the Michigan School for the Deaf, the Department of Mental Health, the Department of Social Services, or any combination thereof, for the delivery of the special education programs or services, or with an agency approved by the State Board for delivery of an ancillary professional special education service. The intermediate school district of which the local school district is constituent shall be a party to each contract even if the intermediate school district does not participate in the delivery of the program or services. [Emphasis added.]
Thus, the State Board of Education and the intermediate school districts have the duty to develop and establish a plan for special education but the local school district has the duty and responsibility to provide the special education services. From this, it seems clear that the school district is precluded by law from getting "out of the special education business.” The end result of the school district’s action was the contracting of the special education services to the intermediate school district.
Is the contracting of these services, then, a mandatory subject of bargaining? Section 15 of pera, MCL 423.215; MSA 17.455(15), provides in part:
For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment.
The subjects which are included within the phrase, "wages, hours, and other terms and conditions of employment,” are mandatory subjects of bargaining and refusal to bargain about mandatory subjects constitutes an unfair labor practice under § 10(e) of pera, MCL 423.210(e); MSA 17.455(10)(e). West Ottawa Ed Ass’n v West Ottawa Bd of Ed, 126 Mich App 306, 314; 337 NW2d 533 (1983).
Whether "contracting out” or "subcontracting” are mandatory subjects of bargaining has been previously addressed by both the United States Supreme Court and this Court. See Fibreboard Paper Products Corp v National Labor Relations Bd, 379 US 203; 85 S Ct 398; 13 L Ed 2d 233 (1964); Van Buren School Dist v Wayne Circuit Judge, 61 Mich App 6; 232 NW2d 278 (1975). Those cases have suggested certain guidelines as being helpful in determining whether, under the facts of each case, "contracting out” and "subcontracting” are mandatory subjects of bargaining.
In Van Buren, supra, which relied on Fibreboard, supra, the Court found that a decision to subcontract is a mandatory subject of bargaining if: (1) the decision does not alter the employer’s basic operation; (2) there is no capital investment or recoupment; and (3) the employer’s freedom to manage his business would not be significantly abridged by requiring bargaining.
Applying these standards to the facts of the instant case, this Court finds that the decision to subcontract the special education program to the intermediate school district was a mandatory subject of bargaining. First, the transfer of the services does not alter the school district’s basic operation. Services are still provided, albeit through a contract. It also appears that the same services continue to be provided in the same place and in the same manner as before the decision to subcontract. Secondly, the school district’s decision did not involve any capital investment or recoupment. The sole purpose of the decision to subcontract the services was to reduce its costs. Third, this Court finds several reasons why the issue of subcontracting would not impair the school district’s freedom to manage. As noted earlier, a school district is required by law to maintain a special education program in some form. The school district is not at liberty to discontinue the program. Further, it would seem that there was no urgency or immediacy in reaching its decision to subcontract the program. Further, discussions of this problem between labor and management may well have produced an alternate, yet satisfactory, method of solving the problem. It must be remembered that the law only requires that the parties bargain in good faith; the law does not require that the parties resolve their differences. Houghton Lake Ed Ass’n v Houghton Lake Community-Schools Bd of Ed, 109 Mich App 1, 6; 310 NW2d 888 (1981), lv den 413 Mich 917 (1982). In this case the school district refused to bargain on an issue that this Court believes is a mandatory subject of bargaining. See Fibreboard, supra; National Labor Relations Bd v American National Ins Co, 343 US 395; 72 S Ct 824; 96 L Ed 1027 (1952).
We hold therefore that the issue of subcontract ing the special education services was a mandatory subject of bargaining.
In fashioning a remedy certain additional facts must be noted. Forty percent of the school district’s special education program consisted of students from surrounding districts. The surrounding districts had contracted with the school district for those services. There is no evidence that the surrounding districts had any collective bargaining agreements with the unions. Thus, the surrounding districts would have had no duty to bargain with the unions in respect to their decision to transfer their special education students elsewhere.
On remand merc shall reinstate with back pay only those special education employees who were wrongfully terminated and who would not have been among those employees who would have been laid off as a result of the decision of the surrounding districts to transfer their special education students elsewhere.
ii
Was this appeal timely filed? Very briefly, the facts indicate that merc’s unfavorable decision to the unions was entered on April 18, 1985. The unions filed a motion for hearing or reconsideration on May 13, 1985, twenty-five days after the entry of merc’s order. On June 24, 1985, the motion for rehearing was denied. This claim of appeal was filed on July 6, 1985, some twelve days after the denial of the motion. The real issue is whether the unions timely filed their motion for rehearing or reconsideration.
The unions claim that they have sixty days within which to seek judicial review pursuant to MCL 24.304; MSA 3.560(204), § 104 of the Adminis trative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq., and that, since their request for rehearing was filed twenty-five days after merc’s original order, the motion for rehearing was timely filed.
The school district claims that the unions were required to abide by the twenty-one day period as required by MCR 7.101(B)(1)(a) and are not entitled to rely on MCR 7.204(A)(1)(c), which permits other time periods for taking appeals as "provided by law.” The school district argues that there is no procedure for seeking a rehearing of a merc decision without alleging new facts or law and since there was no "justifiable reason” set forth in the motion for rehearing that the sixty-day period is not applicable. We do not agree.
Provisions for rehearings before administrative agencies are set forth in MCL 24.287; MSA 3.560(187):
(1) An agency may order a rehearing in a contested case on its own motion or on request of a party.
(2) Where for justifiable reasons the record of testimony made at the hearing is found by the agency to be inadequate for purposes of judicial review, the agency on its own motion or on request of a party shall order a rehearing.
(3) A request for rehearing shall be filed within the time fixed by this act for instituting proceedings for judicial review.
The school district seems to base its argument upon subsection (2) above. We do not believe that section is applicable to the facts of this case. Subsection (2) addresses the inadequacy of the record of testimony and, where that occurs, the agency may on its own motion request a rehearing to resolve the factual inadequacies. This section does not limit rehearings to only that situation. Certainly under subsection (1) if a question were raised as to a misapplication of the law on a particular case or for no doubt many other reasons, the agency is permitted, either on its own motion or on motion by a party, to order a rehearing.
MCL 24.287(3); MSA 3.560(187)(3) describes the time for filing a motion for rehearing as follows:
A request for a rehearing shall be filed within the time fixed by this act for instituting proceedings for judicial review.
MCL 24.304; MSA 3.560(204) sets forth the time requirement for filing petitions for review.
(1) A petition shall be filed in the court within 60 days after the date of mailing notice of the final decision or order of the agency, or if a rehearing before the agency is timely requested, within 60 days after delivery or mailing notice of the decision or order thereon.
The time for filing an appeal is sixty days after the date of mailing notice of the final decision or order of the agency. The time to file a motion for rehearing would therefore be within sixty days after the date of mailing of the final decision or order of the agency. The motion for rehearing in the case was filed twenty-five days after merc’s final order. We conclude that this appeal was timely filed.
The decision of merc is reversed and remanded with instructions in accordance with this opinion. | [
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V. J. Brennan, P.J.
Plaintiff filed a defamation action against defendants Robert Runyon and MegaMedia, Incorporated, on March 6, 1980. On Jan uary 16, 1981, plaintiff filed his first amended complaint in which he added Robert Black as a defendant.
This action arises out of the following factual situation. On October 31, 1979, defendant Black, an assistant to the Mayor of Lansing, allegedly told Arlo Earegood, a deputy county sheriff, that plaintiff, a county commissioner, had been indicted or charged with criminal tax evasion. Defendant Runyon, an employee of the Ingham County News, purportedly obtained the story either directly or indirectly from Earegood or Sharon Whipple, the county sheriff’s personal secretary. Whipple or Earegood referred defendant Runyon to defendant Black for confirmation of the story. On October 31, 1979, defendant Runyon called defendant Black, who allegedly confirmed to Runyon that plaintiff was being investigated on tax charges and would appear in court on those charges on the following day. Plaintiff contends that by this statement defendant Black meant, and was understood to mean, that plaintiff was being charged with criminal tax evasion. In any event, as a result of the above events, on October 31, 1979, defendant Runyon called the following report into MegaMedia’s WFMK radio station:
"Two Democratic County Commissioners have been indicted in Ingham County District Court on charges of not having paid their federal, state and Lansing City income tax for the past three years. The Commissioners, Pat Ryan and Mark Grebner, the targets of recent recall movements by organizations charging them with being against law enforcement, had no comment today although Ryan has called for a press conference Friday, at which time he is expected to submit his resignation from the board. Ryan is also under indictment for operating a junkyard in his home in Lansing. Grebner, who lives in East Lansing, works in Lansing, and is therefore liable for Lansing income tax provisions. This is Bob Runyon, reporting for WFMK.”
On November 1, 1979, WFMK’s news director, David Downing, broadcast the above report, verbatim, over the public airway. Subsequently, plaintiff requested that WFMK broadcast the following retraction:
"WFMK regrets that it previously reported that County Commissioner Mark Grebner had been indicted for failure to pay income taxes. We have now learned that Mr. Grebner is neither under indictment nor under investigation on any tax charges.
"As to city income taxes, Lansing City Attorney Steve Sawyer confirms that Mr. Grebner, who neither works nor lives in Lansing, owes no city taxes and is not obligated to file a return.
"WFMK regrets its error.”
While the record is not entirely clear, it seems that, in lieu thereof, a report qúalifying the original story was broadcast:
"It was reported earlier today, on WFMK, that County Commissioner, Mark Grebner of East Lansing, was indicted on income tax charges yesterday. In fact, he was not. However, Ingham County Commissioner, Pat Ryan, did appear in Ingham County Circuit Court yesterday to answer charges of income tax evasion. Another County Commissioner has admitted that he has not paid his 1978 taxes, and State Tax sources say that Commissioner Mark Grebner of East Lansing did not file a 1977 tax return either.
"Those Commissioners living outside of Lansing, but being paid by the County for holding meetings in Lansing may be subjected to the Lansing income tax provisions.”
Thereafter, plaintiff filed the instant suit.
On September 1, 1981, defendant Black filed a motion for accelerated judgment, GCR 1963, 116.1(5). On September 16, 1981, defendant MegaMedia, Inc., filed a motion for summary judgment, GCR 1963, 117.2(3). After hearing arguments on the motions, the trial court granted both motions. Trial proceeded against defendant Runyon, following which the jury returned a verdict in favor of plaintiff for $7,500. Plaintiff appeals only from the orders granting defendant Black’s motion and defendant MegaMedia’s motion.
We first address plaintiffs claim that the trial court erred by granting MegaMedia’s motion for summary judgment pursuant to GCR 1963, 117.2(3). The trial court found that Runyon was not an agent or employee of MegaMedia and that there was no genuine issue of fact as to MegaMedia’s actual malice.
Plaintiff does not contest the trial court’s ruling that he was a public official, and, in fact, plaintiff argues from that premise. Hence, plaintiff also concedes that the New York Times Co v Sullivan, 376 US 254; 84 S Ct 710; 11 L Ed 2d 686 (1964), actual malice standard applies to the situation herein. Actual malice is an element which a plaintiff must prove in order to recover when the plaintiff is a public official or public figure. See Postill v Booth Newspapers, Inc, 188 Mich App 608, 618-619; 325 NW2d 511 (1982). See also Curtis Publishing Co v Butts, 388 US 130; 87 S Ct 1975; 18 L Ed 2d 1094 (1967); Hayes v Booth Newspapers, Inc, 97 Mich App 758; 295 NW2d 858 (1980).
Actual malice is defined as knowledge that the published statement was false or as reckless disregard as to whether the statement was false or not. New York Times Co v Sullivan, supra; Zachrick v Booth Newspapers, 119 Mich App 72; 325 NW2d 630 (1982). Reckless disregard for the truth is not established merely by showing that the statements were made with preconceived objectives or insufficient investigation. Johnson v The Herald Co, 116 Mich App 523, 526; 323 NW2d 468 (1982). Furthermore, ill will, spite or even hatred, standing alone, do not amount to actual malice. Postill v Booth Newspapers, Inc, supra, p 626. "Reckless disregard” is not measured by whether a reasonably prudent man would have published or would have investigated before publishing, but by whether the publisher in fact entertained serious doubts concerning the truth of the statements published. Postill v Booth Newspapers, Inc, supra, pp 624-625.
Plaintiff first contends that Runyon possessed the required malice and this malice should have been imputed to MegaMedia because Runyon was MegaMedia’s agent.
The general rule as to the liability of corporations for defamatory utterances of their agents was set forth in Poledna v Bendix Aviation Corp, 360 Mich 129, 139-140; 103 NW2d 789 (1960), as follows:
" 'There is no longer any doubt that a corporation may be held liable for slander uttered by an agent while in the discharge of his duty as agent and in relation to the matter about which his duty as agent permits or requires him to act, in the same way and to the same extent as an individual could be held liable for the same slander.’ Priest v Central States Fire Ins Co, 223 Mo App 122, 124; 9 SW2d 543 (1928).”
After reviewing the pleadings, affidavits, depositions, and other documentary evidence, and giving the benefit of any reasonable doubt as to the existence of an issue of fact to plaintiff, we conclude that there was no error on the part of the trial court in finding that Runyon was not an agent of MegaMedia.
The evidence indicated that the Ingham County News executed an agreement with defendant MegaMedia, which provided that MegaMedia would broadcast advertisements for the Ingham County News, in exchange for which the Ingham County News would provide news stories to MegaMedia for radio broadcasting. Runyon was an employee of the Ingham County News. According to Runyon and two other affiants, Runyon was acting pursuant to the above agreement when he called in the news report in question. In addition, the evidence indicated that MegaMedia had no control over Runyon, nor did it otherwise direct his work. MegaMedia did not compensate Runyon for his work and did not have any right to discipline or fire him. MegaMedia’s only control over the situation was to decide whether to broadcast Runyon’s report. Plaintiff presented no evidence to the contrary. In light of the above facts, Runyon was not an agent of MegaMedia, and Runyon’s malice cannot be imputed to MegaMedia.
In the alternative, plaintiff contends that, even if Runyon’s malice cannot be imputed to MegaMedia, plaintiff’s allegations were sufficient to present a genuine issue of material fact as to whether there was actual malice on the part of MegaMedia. A review of the record reveals that the trial court improperly granted summary judgment in favor of MegaMedia because plaintiff’s allegations are sufficient to raise a question of fact as to whether there was actual malice on the part of MegaMedia.
In Steadman v Lapensohn, 408 Mich 50, 55; 288 NW2d 580 (1980), the Supreme Court stated:
"It is clear that the actual malice necessary to defeat a conditional privilege can be established by inference. Indeed, given the very subjective nature of the test for actual malice, circumstantial evidence may be the only kind available on the issue. In this case, we do not know whether a factfinder would infer actual malice from the present record. However, it is clear that the record was sufficient to create a genuine issue of fact as to that question.” (Footnotes omitted.)
The person having responsibility for the broadcast at WFMK was MegaMedia’s news director, David Downing. In his- affidavit, plaintiff alleged the following:
"3. Plaintiff will also be able to show at trial that David Downing, WFMK’s news director, knew or had reason to believe that the broadcast was false in that:
"A. Mr. Downing knew or should have known that an 'indictment’ as reported, would require a grand jury, and there was no grand jury sitting in the county.
"B. Mr. Downing knew or should have known that an indictment is done by a grand jury and not by the district court.
"C. Mr. Downing knew or should have known that the Ingham County District Court has no jurisdiction over either Lansing or federal tax charges, and would not be a proper venue as to state tax charges against Mr. Grebner.
"D. Mr. Downing knew that the report that Grebner 'had no comment today’ was false because he knew that the recording had been made October 31 for broadcast November 1, and that plaintiff could not, by October 31 have declined comment 'today’ (the date of the broadcast).
"E. Mr. Downing knew or should have known that plaintiff was an East Lansing commissioner and was not employed in Lansing and that defendant’s report that he was so employed in Lansing was false.
"F. Mr. Runyon’s use of the word 'Democrat’ as an adjective (instead of 'Democratic’) is a use practiced only by highly partisan Republicans who refuse to call the Democratic Party by its proper name for fear of conceding that Democrats are democratic. Mr. Downing knew from that usage in report that Mr. Runyon was a partisan opponent of Mr. Grebner’s, and had reason to suspect the veracity of the report.
"G. Mr. Downing further knew or should have known of Mr. Runyon’s partisan bias against plaintiff in that: (A) Mr. Runyon was a former public official elected as a Republican and (B) Mr. Runyon had recently stated, in a publicly printed column (attached hereto as exhibit A), that plaintiff Grebner 'will have to go’.
"H. Plaintiff is informed and believes and alleges on information and belief that defendant Runyon had never provided any similar news stories for broadcast. Because defendants’ affidavits do not specify any particular news stories, and because only defendant knows what stories they refer to, plaintiff cannot at this time present material facts to oppose defendant’s claim in this respect because such facts are known only to persons whose affidavits plaintiff cannot procure, that is the defendants.
"I. As shown by defendant MegaMedia’s answer to the complaint (¶¶ 30-31), defendant MegaMedia acted with reckless disregard for the truth when, in spite of all the above, it ran the story without any attempt to confirm it whatsoever.
"J. Plaintiff cannot present facts showing the actual state of mind of defendant Runyon or defendant MegaMedia’s other agents and employees or what knowledge they actually held for the reason that their actual state of mind is known only to defendant Runyon and agents and employees of MegaMedia, Inc., whose affidavits plaintiff cannot procure because plaintiff is suing defendant Runyon and defendant MegaMedia, Inc., and defendant Runyon and defendant MegaMedia, Inc.’s, employees are hostile to plaintiff.”
MegaMedia responded to the plaintiff’s allegations with affidavits stating that prior to October 31, 1979, Runyon had supplied WFMK with news stories for broadcast and these stories proved cor rect. Thus, MegaMedia never had any reason to believe that the content of the broadcasts Runyon provided on October 31, 1979, was anything but completely truthful. Relying upon MegaMedia’s assertion that MegaMedia had been given no reason to question the truth of Runyon’s statements, the trial court found that plaintiff had not alleged actual malice on the part of MegaMedia. However, because MegaMedia’s bare allegation that Runyon was accurate in the past does not answer plaintiff’s allegations that MegaMedia’s broadcast of this news report was made with reckless disregard as to whether the news report was false or not, we find that there was a genuine issue of material fact as to whether MegaMedia had reason to question the truth of Runyon’s statements in this particular news report. More particularly, there was a genuine issue as to whether MegaMedia, in fact, entertained serious doubts concerning the truth of the statements published and whether the failure to make a phone call verifying the report amounted to reckless disregard as to the truthfulness of the report. We find that this matter should have been left to the trier of fact. Where the credibility of a witness or deponent is crucial, summary judgment should not be granted. Plaintiff’s allegations were sufficient to withstand a motion for summary judgment.
We next address plaintiffs claim that the trial court erred by granting accelerated judgment in favor of defendant Black on the basis that plaintiff did not file his complaint naming Black as a defendant within the applicable period of limitations. GCR 1963, 116.1(5). Although plaintiff agrees that the one-year statute of limitations applicable to libel and slander actions, MCL 600.5805, subds (1), (7); MSA 27A.5805, subds (1), (7), had run against Black by the time plaintiff’s amended com plaint was filed adding Black as a defendant, plaintiff contends that the limitation period was extended because Black fraudulently concealed his identity and the claim which plaintiff had against him.
In reviewing motions for accelerated judgment, courts must accept all well-pled allegations of the nonmoving party as true. It is improper to grant a motion for accelerated judgment where factual issues exist. Tonegatto v Budak, 112 Mich App 575, 579; 316 NW2d 262 (1982).
On October 31, 1979, Black allegedly confirmed information given to Runyon that plaintiff had been charged with criminal tax evasion. Based upon this, and information from other sources, on October 31, 1979, Runyon called into WFMK the defamatory news report in question. The report was broadcast the next day, November 1, 1979. On March 6, 1980, plaintiff filed this defamation action against Robert Runyon and MegaMedia, Inc., owner of WFMK. On January 16, 1981, plaintiff filed his first amended complaint, dated December 10, 1980, in which he added Robert Black as a defendant. In that complaint plaintiff alleged that Black originally told Arlo Earegood the defamatory story on October 31, 1979. Subsequently, Earegood told Runyon the story, and later on the same day, October 31, 1979, Black confirmed to Runyon that plaintiff was being investigated on tax charges and would appear in court on those charges the following day. Plaintiff contends that by this statement, Black meant, and was understood to mean, that plaintiff was being charged with criminal tax evasion. The complaint further alleged that Black told plaintiff’s counsel that he had not talked to Runyon on October 31, 1979, and that Black failed to appear at a scheduled deposi tion on October 20, 1980. Black asserted that he failed to appear at the deposition because of an illness. Finally, the amended complaint stated that Black and others fraudulently concealed the existence of plaintiffs claim against him and his identity for purposes of that claim pursuant to MCL 600.5855; MSA 27A.5855. Plaintiff contended that he did not discover the existence of his claim against Black and the latter’s identity until December 1, 1980, when plaintiffs attorney received the amended answers to certain interrogatories dated November 24, 1980.
We find that the trial court properly granted Black’s motion for accelerated judgment. There were no disputed questions of fact presented. Plaintiffs reliance upon MCL 600.5855; MSA 27A.5855 is misplaced. MCL 600.5855; MSA 27A.5855 states:
"If a person who is or may be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although the action would otherwise be barred by the period of limitations.”
In the context of this statute: "Fraudulent concealment means employment of an artifice, planned to prevent inquiry or escape investigation, and mislead or hinder acquirement of information disclosing a right of action. The acts relied on must be of an affirmative character and fraudulent.” De Haan v Winter, 258 Mich 293, 296; 241 NW 923 (1932). See Burton Twp v Speck, 378 Mich 213; 144 NW2d 347 (1966); International Union United Automo bile Workers of America v Wood, 337 Mich 8; 59 NW2d 60 (1953). In the instant case, plaintiff has failed to allege any facts that would support such a conclusion. Black’s mere silence or inaction does not amount to fraudulent concealment. McNaughton v Rockford State Bank, 261 Mich 265, 268-269; 246 NW 84 (1933). It has been repeatedly held that a delay in instituting suit cannot be excused on the ground of fraudulent concealment where the failure to discover is attributable to plaintiff’s own neglect. See Kroes v Harryman, 352 Mich 642; 90 NW2d 444 (1958); Janiszewski v Behrmann, 345 Mich 8; 75 NW2d 77 (1956); Tonegatto v Budak, 112 Mich App 575; 316 NW2d 262 (1982).
Plaintiff, by his own deposition testimony, admitted that he obtained information on the day of the broadcast, or soon thereafter, that indicated that defendant Black was the source of the defamatory newscast. In fact, according to plaintiff’s deposition testimony, Runyon told plaintiff that he received his information from Black. Surely this information should have, at the very least, provided a sufficient reason for further investigation. Consequently, not only has plaintiff failed to establish the existence of any affirmative acts that would amount to fraudulent concealment, but also the facts show that plaintiff knew of Black’s existence, and of the likelihood that he had a claim against Black, as early as the day of the broadcast.
Summary judgment in favor of MegaMedia is reversed, and we remand to the trial court for a trial on the merits. Accelerated judgment in favor of Black is affirmed. We do not retain jurisdiction. | [
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Hood, J.
In this action, plaintiff sued several defendants as the result of the death of her son, Gary Catron, who killed himself while confined at the Southgate City Jail. Plaintiff appeals as of right from a grant of summary judgment in favor of defendants Perrin, Haber, Tims and Sadowski, all of whom are employees of the Southgate Police Department.
At about 3:30 p.m., April 27, 1979, 15-year-old Gary Catron came home drunk and promptly began to fight with his twin brother Terry. After Gary armed himself with a butcher knife, plaintiff, their mother, telephoned the Southgate police for help.
When Officers Tims and Sadowski arrived, Gary, having apparently given up chasing his brother around the neighborhood, was returning home. From about 25 feet, the officers saw that Gary was staggering, bleeding from the mouth (his face was stained with blood), and had a butcher knife sticking out of his back pocket. Although Gary was belligerent and uncooperative, the officers were able to take the knife from him, handcuff him, and place him in the patrol car.
Defendants concede that Tims and Sadowski not only knew that Gary was a juvenile, but also recognized him from his previous contacts with the police. The evidence, however, does not clearly show that they knew either about Gary’s particular behavioral problem and history of substance abuse, or that Gary had, at the Southgate Police Department’s suggestion, received psychological counseling at the Downriver Guidance Center.
After arresting Gary, the officers talked with plaintiff. She claims that the officers merely asked her whether or not she could handle Gary and that she responded that she could not. The officers then said that they would take Gary into custody and that she could pick him up in about an hour. On the other hand, defendants claim that the officers asked plaintiff what she wanted to do. (Terry was complaining that he was afraid and wanted Gary taken out of the house.) She responded by asking them to arrest Gary. One of the officers told her he would take Gary and hold him at the jail, but that since he was a juvenile, she would have to come down to the jail later.
During the ride to the Southgate police station, Gary was screaming loudly, kicking at the metal screen which separated him from the officers, cursing them, and challenging them to a fight. He continued to struggle as he was taken from the car to the booking area. In fact, when the handcuffs were removed, Gary began striking the Formica tabletop with his fists and again offered to fight the officers.
Gary was then confined in one of the two segregated cells designated by departmental policy to accommodate juveniles. Each of the two cells in the juvenile detention area has three concrete walls and a front which consists of steel bars and crossbeams. The two cells are separated from the security corridor by a metal door. Although the two cells are equipped with a sound monitoring system, no visual contact is available from the officers’ station. The officers in charge must walk down to the juvenile section to check on persons held there.
The jail is equipped with a detoxification cell: a large cell with soft surfaces, no bars, and a large window which allows occupants to be easily observed from the security corridor. Although the detoxification cell was empty, the officers complied with a departmental policy that all juveniles, even if clearly intoxicated, must be housed in the juvenile detention area. Moreover, defendant Sadowski testified at his deposition that the policy required the detoxification cell to be used only for a person either unable to walk or unconscious.
Gary was still combative and belligerent when defendants Tims and Sadowski placed him in his cell. Because during most of his stay in the jail Gary was shouting and screaming so loudly that the noise disrupted the department’s work, defendant Haber turned off the sound monitoring system for most of that time.
During the 1-1/2 hours that Gary remained alive in his cell, defendant Haber walked past his cell only once. Gary appeared to be sleeping then (5 p.m.).
About 15 to 30 minutes later, Gary was found to have hanged himself. The suicide had consumed enough time for Gary to rip up his shirt, tie a part of it over the crossbeam and attempt to hang himself, fail because the knot gave, and use a second knot to successfully hang himself. He was pronounced dead on arrival at Wyandotte General Hospital.
Eventually, plaintiff sued. Her complaint contained five allegations: (1) architect’s and builder’s malpractice, (2) the city’s liability for a defective building, (3) false arrest and false imprisonment, (4) assault and battery, and (5) deprival of Gary’s constitutional rights in violation of 42 USC 1983. The trial court, however, dismissed the last three of these counts, ruling that no material questions of fact existed. Defendants Perrin, Haber, Tims, and Sadowski were therefore dismissed from the suit.
Plaintiff first argues that the trial court erred in granting summary judgment on the false arrest and false imprisonment count. Summary judgment under GCR 1963, 117.2(3) is inappropriate if a "genuine issue of fact is created when the affidavits, pleadings, depositions, admissions and documentary evidence, viewed in the light most favorable to the party opposing the motion, might permit inferences contrary to the facts as asserted by the movant”. Opdyke Investment Co v Norris Grain Co, 413 Mich 354, 360; 320 NW2d 836 (1982). However, if the undisputed facts allow only one reasonable interpretation, the question becomes a legal one. Hammitt v Straley, 338 Mich 587, 597; 61 NW2d 641 (1953); Leisure v Hicks, 336 Mich 148; 57 NW2d 473 (1953).
In order to prevail on this count, plaintiff must show that the arrest was not legal, i.e., without probable cause, Lewis v Farmer Jack Division, Inc, 415 Mich 212, 218, fn 2; 327 NW2d 893 (1982); Filer v Smith, 102 Mich 98; 60 NW 297 (1894). Probable cause to arrest is determined by whether or not the "facts available to the police at the moment of arrest would have justified a fair-minded person of average intelligence and judgment in believing that [the arrestee] had committed a felony”. People v Goeckerman, 126 Mich App 517, 521; 337 NW2d 557 (1983). See also Beck v Ohio, 379 US 89; 85 S Ct 223; 13 L Ed 2d 142 (1964); 1 Wharton’s Criminal Procedure (12th ed), § 51, pp 144-145.
Based on the undisputed facts, we can only conclude that defendants did have probable cause to arrest Gary. His mother had earlier telephoned them saying that Gary was assaulting his brother with a knife. When Tims and Sadowski saw him, he was staggering, bleeding, and carrying the knife. Even though Gary was a juvenile, the police had probable cause to arrest him for felonious assault. MCL 750.82; MSA 28.277. Whether or not Gary could actually have been convicted is irrelevant because actual innocence is not an element of the tort of false arrest. Lewis, supra, 415 Mich 218, fn 1.
Plaintiff also claims that the trial court erroneously granted summary judgment on the assault and battery count. GCR 1963, 117.2(1). Specifically, plaintiff had alleged that, during the arrest, defendants intentionally and nonconsensually touched Gary. Defendants counter by claiming that they are not liable because of governmental immunity.
Plaintiff is alleging an intentional tort. 2 Michigan Law & Practice, Assault and Battery, §2, p 529; Prosser, Torts (3d ed), § 10, p 40. As a general rule, intentional torts are not protected by governmental immunity: "[A]n intentional tort [is] not in the exercise or discharge of a governmental function.” Lockaby v Wayne County, 406 Mich 65, 77; 276 NW2d 1 (1979). See also Armstead v Jackson, 121 Mich App 239; 328 NW2d 541 (1981); Shunk v Michigan, 97 Mich App 626; 296 NW2d 129 (1980). But at times, the government finds it necessary to do things that would normally be called intentional torts:
"A tort is a civil wrong and conduct which is wrong within one setting can be permissible within another. For example, a police officer may not intentionally strike a citizen peacefully walking down the street, but his duty may require the police officer to intentionally strike another citizen to prevent him from murdering a third peaceful citizen.” Lockaby, supra, 406 Mich 82 (Williams, J., concurring.)
Governmental actions which would normally constitute intentional torts are protected by governmental immunity if those actions are justified. Conversely, if the actions are not justified, they are not protected by governmental immunity. Smith v Michigan, 122 Mich App 340, 344-346; 333 NW2d 50 (1983). Specifically, a police officer may use reasonable force when making an arrest. Firestone v Rice, 71 Mich 377; 38 NW 885 (1888); 35 CJS, False Imprisonment, § 25, pp 657-660. Therefore, " 'the measure of necessary force is that which an ordinarily prudent and intelligent person, with the knowledge and in the situation of the arresting officer, would have déemed necessary’ ”. Barrett v United States, 62 US App DC 25, 26; 64 F2d 148, 149 (1933). By itself, the use of handcuffs is not unreasonable force. McCullough v Greenfield, 133 Mich 463; 95 NW 532; 62 LRA 906 (1903); Firestone, supra. Because plaintiff has never alleged that defendants used unreasonable force in arresting Gary, the trial court properly granted summary judgment on this count.
Plaintiff also asks us to reinstate the § 1983 count. In her complaint, she alleged that defendants deprived Gary of his constitutional rights under the 14th Amendment to the United States Constitution under color of law by failing to provide him with necessary medical care and treatment while he was in the jail. Such a cause of action is allowed under § 1983 if the plaintiff alleges "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs”. Estelle v Gamble, 429 US 97, 106; 97 S Ct 285, 292; 50 L Ed 2d 251, 261 (1976). Every prisoner has the right to receive medical care under circumstances in which a reasonable person would seek medical care. Rust v Alaska, 582 P2d 134, 143, fn 34 (Alas, 1978). Prison or jail authorities must make available a level of medical care reasonably designed to meet the inmate’s routine and emergency health care needs. Ramos v Lamm, 639 F2d 559, 574 (CA 10, 1980), cert den 450 US 1041; 101 S Ct 1759; 68 L Ed 2d 239 (1981). A prisoner is entitled not only to have his physical needs met, but also to have his psychological needs met. Inmates of Allegheny County Jail v Pierce, 612 F2d 754 (CA 3, 1979); Bowring v Godwin, 551 F2d 44, 47 (CA 4, 1977).
In evaluating a plaintiff’s claim of failure to provide necessary medical care and treatment, courts use a two-step test: "It requires deliberate indifference on the part of [the] officials and it requires the prisoner’s medical needs to be serious.” West v Keve, 571 F2d 158, 161 (CA 3, 1978).
Hendrix v Faulkner, 525 F Supp 435, 454 (ND Ind, 1981), explained the second of these requirements: "A medical need is serious if it is 'one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.’ Laaman v Helgemoe, 437 F Supp 269, 311 (D NH, 1977).” In the present case, we believe that a rational jury could infer from the record that Gary had serious medical needs that should have been recognized by defendants. Plaintiff’s expert testified at his depositions that he believed that not only did Gary urgently and immediately need medical treatment while in custody but also that this need must have been sufficiently obvious to the police officers.
We also believe that a jury could reasonably find deliberate indifference on defendants’ part. To show this prong of the test, a plaintiff must "show either denied or unreasonably delayed access to a physician for diagnosis or treatment of a discomfort-causing ailment, or failure to provide prescribed treatment”. Todaro v Ward, 431 F Supp 1129, 1133 (SD NY, 1977). See also Ramos, supra, 639 F2d 575.
Patzig v O’Neil, 577 F2d 841 (CA 3, 1978), is similar to the present case. There, the deceased had been arrested at about 4:30 a.m. and given a breathalyzer test at 6:07 a.m. (The result was .06%.) Eight minutes later, she was given a medical examination and was then put in a cell with two others. Somewhere between 9 and 9:40 a.m. she was taken out of the cell in order to make a telephone call. Because she refused to go back into her cell after making the call, the defendants placed her in a vacant cell. She then became hysterical and did not calm down for 30 minutes. At 10 a.m. the defendants found that she had hanged herself with her belt. Jail regulations had required that defendants take the belt away from her. Furthermore, although checks were required every 15 minutes by the regulations, the matron had only checked every 30 minutes. The court affirmed the summary judgment and ruled that callousness, not mere negligence, is the proper standard for a § 1983 action: " 'More is needed than a naked averment that a tort was committed under color of state law.’ ” 577 F2d 848.
For a number of reasons, however, the present case is different. First, even before being arrested, Gary had become so distraught that he had attacked his own twin brother with a butcher knife. He had also been drinking. Alcohol is a depressant. A person sobering up can become quite depressed. Whether or not defendants knew or believed these things is obviously a question of fact, and thus a jury question. Furthermore, the evidence has not foreclosed a consideration of whether or not defendants had actual knowledge of Gary’s psychological problems.
Second, MCL 764.27; MSA 28.886 states that a juvenile under 17 must "be taken immediately before the juvenile division of the probate court of the county” where the offense occurred. This, defendants failed to do.
Third, there is evidence that defendants failed to effectively monitor Gary while he was in his cell. Only once did anyone check on him. Moreover, the sound monitoring system was turned off. It could be shown that, at least in part, the monitoring system must have been installed to prevent suicides.
In summary, based on the facts so far developed in this case, we believe that a jury could reasonably conclude (1) that defendants should have known that Gary needed medical attention and (2) that the failure to adequately monitor or to provide any medical help constituted being "deliberately indifferent” to Gary’s medical needs.
Affirmed in part, reversed in part, and remanded. No costs, neither side having prevailed in full.
In the rest of this opinion, these four will be referred to as "defendants”. The other defendants are not a part of this appeal.
On remand, plaintiff may amend her complaint on this count.
Estelle is an Eighth Amendment case. Because Gary was merely a detainee, the Eight Amendment does not apply. Bell v Wolfish, 441 US 520, 535, fn 16; 99 S Ct 1861; 60 L Ed 2d 447 (1979). However, Eighth Amendment analysis provides useful analogies to plaintiff’s due process claim; due process protects a detainee from abusive treatment. Meshkov v Abington Twp, 517 F Supp 1280, 1284 (ED Pa, 1981). Moreover, "[i]t would be anomalous to afford a pretrial detainee less constitutional protection than one who has been convicted”. Hampton v Holmesburg Prison Officials, 546 F2d 1077, 1079-1080 (CA 3, 1976).
For example, Franklin v State of Oregon, State Welfare Div, 662 F2d 1337, 1347 (CA 9, 1981), found that the plaintiff had sufficiently stated a cause of action when he alleged that, even though he had a throat tumor, he had been put in a cell with a heavy smoker.
At least one case has, however, ruled that the failure to comply with such statute does not in and of itself amount to deliberate indifference. Wright v Wagner, 641 F2d 239, 241 (CA 5, 1981). See also Patzig, supra.
At least one study indicates that 27% of suicide victims studied were young, white males who were intoxicated when arrested and who committed suicide within three hours of their incarceration. Final Report to National Institute of Corrections on National Study of Jail Suicides (1981). | [
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] |
Michael J Kelly, P.J.
Defendant Auto Club Insurance Association appeals from a circuit court order reversing the district court grant of summary disposition in defendant’s favor.
Plaintiff Daniel Calhoun was injured in a car accident on March 3, 1984. At the time of the accident, plaintiff was insured by a no-fault insurance policy from defendant. This policy contained the following provision for coordination of medical benefits:
If the Declaration Certificate shows Coordinated Medical Benefits, sums paid or payable to or for you or any relative shall be reduced by any amount paid or payable under any valid and collectible: individual, blanket or group disability or hospitalization insurance; medical, surgical or hospital direct pay or reimbursement health care plan; Workers’ Compensation Law, disability law of a similar nature, or any other state or federal law; or car or premises insurance affording medical expense benefits.
At the same time he was insured by defendant, plaintiff belonged to a health maintenance organization insurance plan named Independence Health Plan. Plaintiff’s Independence Health Plan would pay for any medical treatment received by plaintiff at the Woodland Medical Clinic, but did not cover medical treatment received elsewhere.
Following his accident, plaintiff received treatment at the Woodland Medical Clinic, which was covered by his hmo plan. Afterwards, plaintiff sought and received medical treatment from other physicians who were not connected with the Woodland Medical Clinic. Defendant paid for these medical expenses, which were not covered by plaintiff’s hmo, until November of 1985. In November of 1985, plaintiff was examined by another physician at defendant’s request. As a result of this examination, defendant decided to discontinue providing medical benefits to plaintiff.
Plaintiff filed suit against defendant in district court for payment of medical benefits. Defendant moved for summary disposition, arguing that, pursuant to the coordination of benefits clause contained in the acia automobile insurance policy, plaintiff had a duty to pursue medical treatment from his own provider, so defendant owed no duty to reimburse plaintiff for other medical treatment not covered by his hmo plan. The district court granted summary disposition to defendant. Plaintiff appealed the district court’s order to the circuit court, which reversed the district court’s grant of summary disposition and remanded the case for further proceedings. Defendant now appeals from the circuit court’s decision by leave granted.
i
The first issue we address on this appeal is plaintiff’s argument that defendant is estopped from denying payment of plaintiff’s no-fault medical benefits. Plaintiff argues that, since defendant paid those benefits for around IV2 years and plaintiff relied on that conduct, equitable estoppel bars defendant from asserting that it owes plaintiff no duty to pay those benefits. We disagree.
The fact that an insurer has paid some benefits to an insured party does not preclude it from later asserting that it owes nothing when the insured party files suit. Hammermeister v Riverside Ins Co, 116 Mich App 552, 556; 323 NW2d 480 (1982), modified 419 Mich 872 (1984). In Hammermeister, the Court recognized that an insurer could rationally decide to pay benefits on a suspect claim rather than undergo the greater cost of litigating; payment of benefits for such claims does not bar an insurer from later claiming that payment was not owed. Id., p 556. Defendant is not estopped from arguing that it is not obligated to pay plaintiff medical benefits under its contract of no-fault insurance.
11
The next issue we address is whether plaintiff was required to seek all possible treatment from physicians included in his hmo before he could receive no-fault insurance benefits for medical care not covered by his hmo. Defendant argues that it would violate contract principles to allow an insured who pays a reduced premium in exchange for coordinated benefits coverage to choose medical treatment not covered under his primary medical coverage and that this essentially negates the purpose of the coordinated benefits clause. We disagree.
No-fault insurers are required by statute to offer policies including coordination of benefits clauses, such as the one at issue here. Section 3109a of the no-fault act provides:
An insurer providing personal protection insurance benefits shall offer, at appropriately reduced premium rates, deductibles and exclusions reasonably related to other health and accident coverage on the insured. The deductibles and exclusions required to be offered by this section shall be subject to prior approval by the commissioner and shall apply only to benefits payable to the person named in the policy, the spouse of the insured and any relative of either domiciled in the same household. [MCL 500.3109a; MSA 24.13109(1).]
Coverage under an hmo is considered health and accident coverage under this statute. United States Fidelity & Guaranty Co v Group Health Plan of Southeast Michigan, 131 Mich App 268, 272-273; 345 NW2d 683 (1983). When an hmo member chooses to have coordination of benefits under a no-fault policy, then the hmo is considered the primary medical insurer. West Michigan Health Care Network v Transamerica Ins Corp of America, 167 Mich App 218, 224; 421 NW2d 638 (1988); United States Fidelity & Guaranty Co, supra.
Although plaintiff’s hmo was considered the primary health insurer, plaintiff’s failure to seek all possible health care through his hmo does not preclude him from seeking recovery from defendant for medical expenses not covered by his hmo. Any ambiguities in the language of an insurance contract are liberally construed in favor of the insured party. United States Fidelity & Guaranty Co, supra, p 274. Any limitations or exclusions of coverage must be clearly expressed in the language of the policy. Id. The no-fault insurance contract, drafted by defendant, stated that medical benefits paid or payable to plaintiff "shall be reduced by any amount paid or payable” under plaintiffs other medical coverage. Plaintiffs hmo covered only medical treatment received at a specific clinic; any other treatment was not covered by his plan and was not paid or payable under the plan. Thus, the treatment plaintiff received was not excluded by the coordination of benefits clause in his no-fault insurance policy. Had defendant intended that plaintiff seek all possible health care benefits from his hmo plan prior to making a claim for benefits under his no-fault policy, defendant should have included specific language to that effect in its coordination of benefits clause.
Defendant claims that plaintiff has effectively withheld the bargained-for consideration by failing to receive all possible benefits from his hmo. Defendant essentially argues that it will be forced to offer something for nothing if plaintiff is allowed to pay a reduced prémium for coordinated benefits but is not required to first seek payment of benefits under the alternate insurance coverage. We disagree. The statutory language of § 3109a provides that insurers are required to offer coordinated personal protection insurance benefits at reduced rates, but also provides that the reduction in price should be "reasonably related to other health and accident coverage on the insured.” In short, the statute provides that the premium charged should correspond to the risk insured against. Under this language, defendant could have tailored its reduced premium to match the extent of plaintiffs limited coverage; plaintiff should not be penalized if defendant fails to do so.
in
Defendant next argues that allowing plaintiff to claim medical benefits under his no-fault policy without first seeking all possible treatment from his hmo would defeat the legislative purpose behind § 3109a.
As previously noted, § 3109a requires no-fault insurers to offer coordinated benefits at a reduced premium. Section 3109a serves two basic legislative purposes. The primary purpose of § 3109a is to reduce duplicative coverage and thus reduce insurance premiums. Section 3109a was also designed to help reduce the rising prices of health care and insurance by making an insured party’s other health coverage primary. Federal Kemper Ins Co, Inc v Health Ins Admin, Inc, 424 Mich 537, 546; 383 NW2d 590 (1986); LeBlanc v State Farm Mut Auto Ins Co, 410 Mich 173, 194-197; 301 NW2d 775 (1981).
Allowing plaintiff to claim medical benefits under his no-fault insurance does not defeat the legislative purposes behind § 3109a. Plaintiff cannot recover the medical expenses in question from his hmo, so no duplicative coverage or recovery is involved. Since plaintiff did have some medical treatment and expenses caused by the accident provided for under his hmo, the purpose of lowering health care costs was also served. Where there is no duplicative coverage, as in the instant case, the only means to further lower health care costs would be to eliminate the sole medical coverage to the insured. This would be contrary to the overall objective of the no-fault act, which is to provide assured, adequate, and prompt recovery. Perez v State Farm Auto Ins Co, 418 Mich 634, 648; 344 NW2d 773 (1984). Plaintiff in this case, though covered by both no-fault insurance and an hmo, is now in danger of having no coverage for the medical expenses in question. Plaintiffs no-fault insurance policy, issued by defendant, purports to pay for costs in excess of those covered by plaintiffs primary health insurance. Here plaintiff has incurred medical expenses which are not covered by his primary health insurance, so these should be covered by his no-fault insurance policy. See Perez, supra, p 648.
IV
Finally, defendant argues that § 3109a is analogous to § 3109 of the no-fault act, and should be interpreted accordingly. Subsection 1 of §3109 provides:
(1) Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury. [MCL 500.3109; MSA 24.13109.]
The primary purpose behind § 3109, like the purpose behind § 3109a, is to reduce duplicative benefits and insurance costs. LeBlanc, supra, p 191. Under § 3109(1), the insured party is obligated to seek all benefits "provided or required to be provided” by law prior to seeking additional no-fault benefits in excess of coverage provided. Perez, supra, p 645; Morgan v Evans, 163 Mich App 115, 118-119; 413 NW2d 747 (1987), lv gtd 430 Mich 858 (1988). This interpretation was based upon the mandatory language of § 3109, which requires that benefits "provided or required to be provided” by law "shall be subtracted” from no-fault benefits. Perez, supra, p 645.
Defendant claims that § 3109a should be interpreted in the same manner as § 3109, so as to require plaintiff to seek all possible medical treatment from his hmo before seeking recovery of no-fault benefits. We decline to do so. As noted above, the interpretation advocated by defendant was based upon the mandatory language contained in § 3109(1). Since § 3109a does not contain similar straightforward mandatory language, we decline to impose analogous restrictions upon plaintiffs recovery of no-fault medical benefits.
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Per Curiam.
This case is on remand to this Court by order of the Supreme Court for the limited purpose of considering the following issue: "Whether the State Tenure Commission has the authority to reduce a discipline sanction from discharge to a suspension despite finding that the misconduct charges were proven.” 431 Mich 902 (1988). In our earlier unpublished per curiam opinion of March 11, 1988, we reversed the decision of the Tenure Commission. The Tenure Commission had agreed with the petitioner that respondent had been insubordinate, but found discharge to be too severe a penalty. It reduced respondent’s penalty to suspension for the first semester of the 1983-84 school year without pay and ordered that respondent be reinstated and paid all salary lost commencing with the start of the second semester of the 1983-84 school year. Having found that the school board was justified in dismissing respondent, we reinstated the board’s decision without reviewing the penalty imposed by the Tenure Commission or addressing the issue now before us.
Petitioner discharged respondent from his teaching position on the ground that he was insubordinate and persistently failed to abide by petitioner’s administrative rules and directives. Respondent had been employed by petitioner for eighteen years. The record is replete with descriptions of the numerous warnings and reprimands issued to respondent from 1965 to 1982, as well as the two events in 1983 which apparently prompted petitioner to seek his dismissal.
The Tenure Commission cites as authority for its duty to review the penalty imposed and to order a reduction of the measure of punishment its October 5, 1984, decision in Docket No. 82-69, a case in which the names of the parties were kept private. In general, respondent here has adopted an analysis similar to that in 82-69. In 82-69, the Tenure Commission cited three bases for its claim of such authority: (1) the provision of the teacher tenure act, MCL 38.137; MSA 15.2037, under which the commission is vested with "such powers as are necessary” to carry out and enforce the act; (2) the language in Long v Bd of Ed, 350 Mich 324; 86 NW2d 275 (1957), indicating that all questions of law and fact are subject to the Tenure Commission’s de novo review; and (3) authority from other jurisdictions.
The question before the Tenure Commission in this case was the propriety of petitioner’s dismissal of respondent, a tenured teacher. Under the teacher tenure act, a tenured teacher may be discharged only for reasonable and just cause. MCL 38.101; MSA 15.2001. A tenured teacher may appeal to the Tenure Commission any decision of the school board that comes within the provisions of the act. MCL 38.121; MSA 15.2021. The Tenure Commission reviews a dismissal to determine if the board’s decision was arbitrary or unreasonable. Rehberg v Melvindale, Ecorse Twp Bd of Ed, 330 Mich 541, 548; 48 NW2d 142 (1951). In its review, the Tenure Commission makes a de novo determination as to all questions of law and fact which are before it. See Ferrario v Escanaba Bd of Ed, 426 Mich 353, 366-367, 388; 395 NW2d 195 (1986); Long v Royal Oak Bd of Ed, 350 Mich 324, 326; 86 NW2d 275 (1957). While the Tenure Commission has been "vested with such powers as are necessary to carry out and enforce the provisions” of the act, MCL 38.137; MSA 15.2037, it may not impose a duty upon the school board or order equitable relief that is not expressly authorized by the act. Benton Harbor Bd of Ed v Wolff, 139 Mich App 148, 156; 361 NW2d 750 (1984), lv den 422 Mich 976 (1985); Farmer v Holton Public Schools, 138 Mich App 99, 104; 359 NW2d 532 (1981). This is consistent with the generally accepted principle that an administrative reviewing panel has only that power and authority granted to it by statute. 2 Am Jur 2d, Administrative Law, §546, p 355. See also, Michigan Humane Society v Natural Resources Comm, 158 Mich App 393, 399-400; 404 NW2d 757 (1987); Pharris v Secretary of State, 117 Mich App 202, 204; 323 NW2d 652 (1982).
In modifying respondent’s dismissal the Tenure Commission took it upon itself to decide how best to discipline the teacher. There is no provision in the act which expressly or impliedly grants this power to the Tenure Commission. Its role was limited to determining if the dismissal was arbitrary or unreasonable. The Tenure Commission’s determination that a teacher has been wrongfully discharged includes the power to order reinstatement and the payment of all lost wages. MCL 38.103; MSA 15.2003; Shiffer v Gibraltar Bd of Ed, 393 Mich 190; 224 NW2d 255 (1974). However, we find no indication in the act that the Tenure Commission has been granted equitable powers that would authorize it to fashion whatever remedy it sees fit. Wolff, supra.
Our holding does not challenge the Tenure Commission’s mandate of de novo review under Long, but recognizes that the review is limited by the provisions of the act. Our Tenure Commission has not been granted by statute or constitution the same broad powers to fashion a remedy as has been granted in other states. In re Fulcomer, 93 NJ Super 404; 226 A2d 30 (1967); Matter of Bott v Deposit Central Bd of Ed, 41 NY2d 265; 392 NYS2d 274; 360 NE2d 952 (1977); Matter of Mockler v Amback, 100 Misc 2d 717; 420 NYS2d 111 (1979), aff'd 79 AD2d 745; 434 NYS2d 809 (1980); Matter of Vetere v Allen, 15 NY2d 259; 258 NYS2d 77; 206 NE2d 174 (1965). Nor does it have specific statutory power, as does our Civil Service Commission, to both discipline employees and review the discipline imposed by others. MCL 38.154; MSA 5.3364; Konyha v Mt Clemens Civil Service Comm, 393 Mich 422, 424-425; 224 NW2d 833 (1975).
In general, we defer to an agency’s construction of the statute it is charged with administering. Davis v Harrison Bd of Ed, 126 Mich App 89, 97; 342 NW2d 528 (1983). Great weight is given to the expertise of the Tenure Commission when it is acting to promote the statutory scheme of the act. Tomiak v Hamtramck School Dist, 426 Mich 678, 690; 397 NW2d 770 (1986). However, an administrative interpretation is not conclusive and cannot be used to overcome the plain meaning of the statute. Grand Rapids Ed Ass’n v Grand Rapids Bd of Ed, 170 Mich App 644, 651; 428 NW2d 731 (1988). To agree with the Tenure Commission’s interpretation would be to agree that it has the power to discipline teachers. We find nothing in the act to support this position.
We therefore find that the act does not authorize the State Tenure Commission to modify or reduce a sanction from discharge to suspension and therefore the Tenure Commission erred in its construction of the act and in assuming this authority.
Tenure Commission could not order the board to provide specialized training to a teacher as part of a reinstatement order. This Court quoted with approval the dissenting opinion of Tenure Commission Member Gibson to the effect that the act provides only for reimbursement. Member Gibson noted: "Had the Legislature desired the retraining of teachers by their employees, it would have clearly provided for that relief in the statute.” Wolff, supra, p 156. Member Gibson also dissented in this case in the order directing the briefing of this issue. We agree with her observation that the Tenure Commission is not permitted to fine tune the penalty imposed and has been provided by statute with authority to order one remedy—reinstatement with payment of lost wages. As in Wolff, the act does not clearly provide for the relief proposed by the Tenure Commission.
We also note that in a footnote to its order requesting briefs on this issue in its decision and order in 82-69, the Tenure Commission cited two of its decisions in which it had modified a board’s decision, but without extensive discussion of the nature or scope of that power. One of those decisions was the one reversed in Wolff. | [
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Per Curiam.
Defendant appeals as of right from the circuit court’s order partially vacating and modifying an arbitration award. On appeal, defendant asserts that the circuit judge should have disqualified himself from the case and erred in finding that the arbitrator exceeded his authority in fashioning a remedy. We reverse.
Plaintiff Stroman was employed as a police officer by defendant City of Pontiac and was represented by plaintiff Michigan Association of Police (union). Plaintiff Stroman was discharged for various violations of the Pontiac Police Department’s rules which allegedly occurred in the course of the quelling of a disturbance at a local bar. In accordance with the grievance procedures provided by the collective bargaining agreement between the city and the union, plaintiffs’ complaint, that the discharge sanction was excessive, unjust and decided without due process, was heard by an arbi trator chosen by the parties. Following a hearing, the arbitrator found that both the city and Stroman were at fault. In an opinion and order, the arbitrator found that, while Stroman was guilty of the violations as charged, the city also violated various contract provisions relating to providing notice of the charges and a prompt hearing. The arbitrator stated that had it not been for the city’s procedural errors he would have upheld the discharge. However, stating that he was fashioning a remedy which would discipline both the city and Stroman, the arbitrator ordered that Stroman be reinstated without back pay on a probationary "last chance” basis for the next six months. The arbitrator also ordered that Stroman had to accept reemployment under these conditions within seven days or his discharge would be upheld.
Plaintiffs filed the instant action in Oakland Circuit Court, complaining that the arbitrator exceeded his authority when he ordered that Stroman return to work on probation. Plaintiffs alleged that Stroman’s probationary period under the collective bargaining agreement had expired. Plaintiffs further alleged that the collective bargaining agreement provided that each employee serve a one-year probationary period which could be extended an additional six months and that an arbitrator has no authority to make any award which is inconsistent with the collective bargaining agreement. Plaintiffs asserted that, by extending Stroman’s probationary period beyond the maximum specified in the parties’ agreement, the arbitrator exceeded his authority and the award should not be enforced. Plaintiffs also sought injunctive relief to suspend enforcement of the seven-day limitation period for accepting reinstatement until it could be decided if Stroman was required to return to work on a probationary basis. Plaintiff Stroman alleged that he presently had other employment and feared that if he returned to work for the city as a probationary officer he would not be entitled to application of the "just cause” provision of the contract and would likely be fired immediately upon his return to work.
Defendant admitted to plaintiffs’ statement of the contract terms but denied that the arbitrator’s award was inconsistent with the contract terms. Defendant also denied plaintiffs’ allegation with respect to the fear that Stroman would be fired immediately. Defendant also counterclaimed for enforcement of the arbitration award.
On January 8, 1988, the trial judge, Norman L. Lippitt, ordered that enforcement of the arbitrator’s condition that plaintiff Stroman return to work within seven days of the award be stayed until further order of the court. Thereafter, defendant moved to disqualify Judge Lippitt because of his alleged bias. Defendant alleged that Judge Lippitt should disqualify himself because, before becoming a circuit judge, he was a member of the law firm that represented the Detroit Police Officers Association and was a personal friend of the former president of the association, Carl Parsell. Defendant further contended that Parsell helped organize and continued to serve as a consultant to the plaintiff union. The motion was accompanied by the affidavit of the Chief of Police of the City of Pontiac, Reginald M. Turner, Sr., attesting to the alleged relationship between Judge Lippitt, Carl Parsell and the union. Plaintiffs’ response to the motion was accompanied by the affidavit of Carl Parsell denying that he was a personal friend of Judge Lippitt and stating that neither Judge Lippitt nor his former law firm had ever represented him or the plaintiff union.
Following a hearing, Judge Lippitt denied defendant’s motion, stating that Carl Parsell had not spoken to him in fifteen to twenty years. Judge Lippitt further denied that he had ever represented the Detroit Police Officers Association in collective bargaining matters. Defendant appealed Judge Lippitt’s refusal to disqualify himself to Chief Judge Robert C. Anderson, who heard arguments, took the motion under advisement, and denied the motion to disqualify Judge Lippitt.
After hearing arguments on the merits of the instant action, Judge Lippitt found that the arbitrator had clearly exceeded his authority by fashioning a remedy which required plaintiff Stroman to work an additional six months on probation. Judge Lippitt held that the imposition of an additional six months of probation was clearly inconsistent with the terms of the collective bargaining agreement. The circuit court entered an order vacating that portion of the arbitrator’s decision which provided for the six-month probation period.
Defendant contends that the circuit court judge should have disqualified himself pursuant to MCR 2.003(B)(2), when read in conjunction with the Code of Judicial Conduct, Canon 2, §A. We disagree.
A trial judge should be disqualified when the judge cannot impartially hear a case. MCR 2.003(B)(2) provides that a judge should be disqualified if the judge is personally biased or prejudiced for or against a party or attorney. MCR 2.003(B)(4) provides for disqualification where the judge was an attorney for a party or a member of a law firm representing a party within the preceding two years. The moving party bears the burden of proving bias or prejudice and an order denying disqualification will be reversed only where it is apparent that the court abused its discretion. People v Bero, 168 Mich App 545, 549; 425 NW2d 138 (1988); Czuprynski v Bay Circuit Judge, 166 Mich App 118, 124; 420 NW2d 141 (1988).
In the instant case, there was no evidence of record showing that the circuit court judge was biased in favor of plaintiffs or against defendant, or that his former law firm ever represented the plaintiff union. Therefore, we find that the circuit court did not abuse its discretion in denying defendant’s motion for disqualification.
Defendant further contends that the circuit court erred by determining that the arbitrator exceeded his authority under the collective bargaining agreement.
An arbitrator’s source of authority for resolving a collective bargaining agreement dispute is the parties’ contractual agreement. Independent of the contract, the arbitrator does not have general jurisdiction to resolve such disputes. Judicial review of an arbitrator’s decision is limited where it draws its essence from a collective bargaining agreement. In such instances, a court may not review an arbitrator’s factual findings or decision on the merits. Port Huron Area School Dist v Port Huron Ed Ass’n, 426 Mich 143, 150; 393 NW2d 811 (1986).
In this case, the arbitrator’s authority was expressed by Article 6.5 of the contract which states in part:
The Arbitrator shall limit the award to the interpretation, application, or enforcement of this Agreement, and the Arbitrator shall be without power or authority to make any award contrary to, or inconsistent with, or modifying or varying in any way, or adding to or subtracting from this Agreement.
Article 7.1 of the same agreement provides in part:
Seniority of a new officer shall, except as otherwise provided in this Article, commence after the officer has completed a probationary period of twelve (12) months and shall be retroactive from the date of last employment as an officer in the Department. The probationary period may be extended up to an additional six (6) months.
It is accepted that an arbitrator, if not specifically limited by the terms of the collective bargaining agreement, is free to fashion a remedy which considers the relative faults of the parties. See Zeviar v Local No 2747, Airline, Aerospace & Allied Employees, 733 F2d 556 (CA 8, 1984) (employee reinstated but with only half of lost wages because she was also at fault), and Air Line Pilots Ass’n, International v Eastern Air Lines, Inc, 632 F2d 1321 (CA 5, 1980) (reinstatement without full benefits upheld). In Brotherhood of Railway, Airline & Steamship Clerks v Kansas City Terminal Railway Co, 587 F2d 903, 906-907 (CA 8, 1978), cert den 441 US 907; 99 S Ct 1997; 60 L Ed 2d 376 (1979), the court, quoting Diamond v Terminal Railway Alabama State Docks, 421 F2d 228, 233 (CA 5, 1970), stated the test as "not whether the reviewing court agrees with the Board’s interpretation of the bargaining contract, but whether the remedy fashioned by the Board is rationally explainable as a logical means of furthering the aims of that contract.” See also Walsh v Union Pacific R Co, 803 F2d 412 (CA 8, 1986), cert den 482 US 928; 107 S Ct 3213; 96 L Ed 2d 699 (1987).
The Supreme Court reaffirmed this broad grant of authority to labor arbitrators in United Paperworkers International Union, AFL-CIO v Misco, Inc, 484 US —; 108 S Ct 364, 371; 98 L Ed 2d 286, 299 (1987), stating:
As the Court has said, the arbitrator’s award settling a dispute with respect to the interpretation or application of a labor agreement must draw its essence from the contract and cannot simply reflect the arbitrator’s own notions of industrial justice. But as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.
When parties agree to submit a matter to arbitration, they invest the arbitrator with sufficient discretion to resolve their dispute in a manner which is appropriate under the circumstances. Where the collective bargaining agreement is silent as to permissible remedies, an arbitrator does not add to the obligations contractually assumed by the parties by fashioning a remedy which is appropriate under the circumstances. Wayne Co Bd of Comm’rs v National Union of Police Officers, 75 Mich App 375, 381; 254 NW2d 896 (1977), lv den 401 Mich 817 (1977).
In the instant matter, the contract provision which specifies the length of probationary period for new employees does not specifically limit the probation period to eighteen months. Furthermore, even if the provision is construed as limiting an employee’s probationary period to a maximum period of eighteen months, it cannot be construed as prohibiting additional probation under the circumstances presented here. In this case, Stroman was found guilty of rule violations which would have justified his discharge. Under these circumstances, the arbitrator’s imposition of an additional six-month term of probation as a condition upon reinstatement remains true to the essence of the contract. To hold otherwise would be to require the arbitrator to choose between the extremes of discharge or total exoneration, a course which would remove the flexibility in fashioning remedies which is one of the arbitrator’s chief advantages for the amicable settlement of labor disputes.
Reversed and remanded for reinstatement of the arbitrator’s decision. We do not retain jurisdiction. | [
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Per Curiam.
In January, 1985, defendant was convicted by jury of two counts of armed robbery, MCL 750.529; MSA 28.797, one count of first-de gree criminal sexual conduct, MCL 750.520b(l)(e); MSA 28.788(2)(l)(e), and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to concurrent terms of forty to sixty years for the armed robbery and esc convictions and the mandatory two-year consecutive term for felony-firearm. Defendant appeals as of right. We affirm.
On defendant’s first appeal in this case, this Court on August 27, 1986, found that the trial court erred in failing to instruct the jury on the lesser included offenses of armed robbery and first-degree criminal sexual conduct (Docket No. 84956). This Court remanded and directed the trial court to enter convictions and resentence defendant on two counts of larceny from a person, MCL 750.357; MSA 28.589, and one count of second-degree criminal sexual conduct, MCL 750.520c(l)(e); MSA 28.788(3)(l)(e), unless the prosecution elected, prior to resentencing, to retry defendant. This Court affirmed the felony-firearm conviction.
The prosecution subsequently elected to retry defendant on the armed robbery charges but requested the lower court to resentence defendant on second-degree criminal sexual conduct. Defendant was retried and convicted on two counts of armed robbery. Defendant was then sentenced to concurrent terms of forty to sixty years for the armed robbery convictions and resentenced to a ten to fifteen year concurrent term for second-degree criminal sexual conduct. The trial court noted that defendant had already served the felony-firearm sentence.
In this appeal, defendant claims that allowing the prosecution to retry defendant on the armed robbery counts and to have defendant resentenced on second-degree criminal sexual conduct contravened this Court’s prior opinion in this case which gave the prosecutor the option to either retry or resentence defendant on both charges. Defendant argues that this Court did not give the prosecution the right to separate the charges and to retry defendant on one charge while having the court resentence defendant on the other charge. We disagree. This Court’s prior decision did not prevent the prosecutor from electing to retry defendant on the armed robbery counts while allowing the entry of conviction for and resentencing on second-degree criminal sexual conduct.
Defendant further argues that, since all charges arose out of the same transaction, the prosecutor violated the "same transaction” rule of the state constitution’s double jeopardy clause, Const 1963, art 1, § 15, when it elected to have defendant resentenced on one charge and to retry defendant on the others. We again disagree.
The same transaction rule interprets the double jeopardy clause to require the prosecution to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode or transaction. People v White, 390 Mich 245, 254; 212 NW2d 222 (1973). The purpose is to prevent harassment of a defendant and promote the interest of justice. White, supra at 258. Since this defendant was originally tried on all charges, this case is distinguished from People v White.
That the same transaction test is inapplicable to defendant is further evidenced by the fact that previous panels of this Court and the Michigan Supreme Court, in multiple offense cases, have not remanded the entire case for retrial or resentencing where the trial court failed to instruct the jury on the lesser included offenses of one but not all the charges. Instead, the courts have affirmed the convictions of these other charges. See People v Thomas, 399 Mich 826; 249 NW2d 867 (1977) (the Court reversed the conviction of first-degree mur der and remanded for conviction of manslaughter and resentencing unless the prosecutor sought to retry the defendant on first-degree murder; the Court noted the conviction of assault with intent to murder was not affected by the order); People v Bryan, 92 Mich App 208, 225-226; 284 NW2d 765 (1979), lv den 408 Mich 914 (1980) (the defendant was convicted of assault with intent to murder and assault with intent to rob while armed; this Court remanded the defendant’s assault with intent to rob while armed conviction for entry of conviction of attempted armed robbery unless the prosecutor sought to retry the defendant on the greater offense; the defendant’s conviction for assault with intent to commit murder was affirmed); People v Garrett, 161 Mich App 649, 652-653; 411 NW2d 812 (1987), lv den 430 Mich 856 (1988) (this Court reversed the defendant’s conviction for armed robbery and directed the trial court to enter a conviction of unarmed robbery and sentence the defendant accordingly unless the prosecutor had the trial court vacate the judgment of conviction and retry the defendant on the armed robbery charge; the Court affirmed the defendant’s conviction and sentence on felony-firearm).
Defendant’s assertion that People v Hooper, 152 Mich App 243; 394 NW2d 27 (1986), lv den 426 Mich 867 (1986), is controlling is unfounded. The Court in Hooper held that actually shooting the victim and attempting to shoot the victim after already injuring him constituted one assault and could not support separate charges. This Court held that to charge defendant twice violated the double jeopardy clause because it imposed multiple punishments for the same offense. Hooper, supra at 245-246. In the instant case, defendant cannot argue that armed robbery and esc are the same offense. See People v Jones, 144 Mich App 1, 4; 373 NW2d 226 (1985).
Affirmed. | [
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Beasley, P.J.
Plaintiff, McDonald’s Corporation, appeals as of right from an order of the Wayne Circuit Court dismissing its complaint. Defendants, Charter Township of Canton and Canton Township Board of Trustees, cross appeal from that portion of the order allowing plaintiff to submit a second special use request to the township.
On April 29, 1987, plaintiff contracted to purchase a parcel of land located in Canton Township upon which it planned to build a fast-food restaurant. The parcel was zoned C-3 (highway oriented commercial use). Fast-food restaurants are permitted in C-3 districts subject to special land use approval and site plan approval by the township board. Plaintiff submitted applications for special use approval and site plan approval. On July 13, 1987, plaintiff’s representative presented its proposal to the township planning commission. The planning commission recommended approval of plaintiff’s applications. On August 4, 1987, plaintiff’s representative presented its proposal to the township board. The board denied plaintiff’s applications. On August 19, 1987, plaintiff filed a complaint for mandamus with the Wayne Circuit Court. The trial court dismissed plaintiff’s complaint and denied its petition for mandamus with prejudice by order dated October 2, 1987. On November 6, 1987, the trial court granted plaintiff’s motion to amend its judgment so as to permit plaintiff to file new applications with the township.
On appeal, plaintiff first contends that the trial court erred in denying its petition for mandamus. This Court will not interfere with a trial court’s refusal to issue a writ of mandamus absent a clear abuse of discretion. In Carlson v City of Troy, this Court stated the requirements for a writ of mandamus:
"Plaintiffs must have a clear legal right to performance of the specific duty sought to be compelled; defendants must have the clear legal duty to perform such act; and it must be a ministerial act, one 'where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.’ ”
Further, being an extraordinary remedy, mandamus is properly granted only where there is, in practical terms, no other remedy (legal or equitable) which might achieve the same result. Finally, the burden of proving entitlement to the writ is upon the party seeking it.
The pertinent township zoning ordinance, § 5.14(c), states the following with regard to issuance of special land use approvals:
The Township Board shall permit any use requiring special approval under the terms of this ordinance if such use meets the various specific standards set forth in the various sections of this ordinance pertaining to uses allowed after special approval and if the Township Board finds the proposed use requiring special land use approval:
1. Compatible with adjacent uses of land.
2. Not injurious to adjacent property, surrounding neighborhoods, or the community as a whole.
3. Consistent with and promotes the intent and purpose of this ordinance.
4. Compatible with the natural environment.
5. Compatible with the capacities of public services and facilities affected by the proposed use.
6. A community need exists for such use, at the time the request is made, in the general neighborhood where the proposed use will be located.[ ]
The township denied plaintiffs applications due to plaintiffs failure to show that conditions 5 and 6 were met. The transcript of the hoard’s August 4, 1987, meeting reveals its concerns over possible storm sewer (flooding) problems that could arise and over the community’s lack of need for the establishment plaintiff proposed.
We find no abuse of discretion in the trial court’s denial of plaintiffs petition for mandamus. Plaintiff, resting on the record of its presentation to the board, has failed to establish compliance with the township zoning ordinance and, thus, was unable to establish that it had a clear legal right to approval of its applications. Accordingly, mandamus was properly denied.
Plaintiff also contends that the trial court erred in dismissing its complaint in conjunction with the denial of plaintiffs request for mandamus, since its complaint sought not only mandamus but also "such other different relief as is fair and equitable.” Plaintiff’s claim is without merit. Having reviewed plaintiffs complaint, we think it clear that plaintiffs action was in the form of a petition for mandamus—the trial court so interpreted it and so do we. In dismissing the action, the trial court dismissed plaintiffs petition for mandamus, nothing more, nothing less. We find no error.
On cross appeal, defendants contend that the trial court erred in granting plaintiffs motion to amend its judgment so as to permit plaintiff to file new applications with the township concerning the property.
First, defendants argue that the trial court abused its discretion in granting plaintiff’s motion to amend the judgment because plaintiff failed to object to the proposed order within seven days, citing MCR 2.602(B)(3), or, in the alternative, because relief from the judgment was not warranted on the basis of any of the grounds set forth in MCR 2.612.
We do not believe that plaintiff’s failure to object under the seven-day rule operated to bar or render improper the granting of its subsequent motion to amend the judgment. MCR 2.611(B) controls and states that a motion to amend a judgment must be filed and served within twenty-one days after entry of the judgment. In the within case, the original order and judgment was entered on October 2, 1987. Plaintiff filed its motion to amend on October 22, 1987, claiming that the original order did not comport with the trial court’s oral ruling from the bench. Plaintiffs motion was timely filed under MCR 2.611(B).
Further, relief from the original judgment was appropriate under MCR 2.612(A)(1). That rule provides as follows:
Clerical mistakes in judgments, orders, or other parts of the record and errors arising from oversight or omission may be corrected by the court at any time on its own initiative or on motion of a party and after notice, if the court orders it.
In Stokus v Walled Lake Bd of Ed, this Court stated the following with regard to the precursor to the above-quoted rule:
A careful reading of GCR 1963, 528.1 reveals that its purpose is to make the lower court record and judgment accurately reflect what was done and decided at the trial level.
The basis for plaintiffs motion below and the foundation upon which the trial court granted the motion lay in the original order’s failure to comport with the trial court’s intended and orally expressed ruling. The amendment changed the judgment to more accurately reflect that which was actually done and decided by the trial court. As such, the correction was appropriate under MCR 2.612(A)(1).
Finally, defendants argue that the trial court’s amended judgment conflicts with the res judicata effect of the board’s denial of plaintiffs applications. In Winchester v W A Foote Memorial Hospital, the Court stated:
Under the doctrine of res judicata, circum stances or arguments that existed, or could have been made, prior to the initial . . . decision simply cannot form the basis for determining that a "material change in circumstances” has occurred.
However, the Court went on to find that a "material change in circumstances” would include the submission of new information to the municipality in response to the reservations which led to the original denial, stating:
[Ojnce facts were reported to the commission indicating that the commission’s underlying assumption for rejecting the proposal was in error, "a material change in circumstance” came into being justifying the commission in reversing its first decision.[ ]
In the instant case, the trial court’s amended order allowing plaintiff to resubmit its applications was proper. Plaintiffs first presentation to the board was incomplete. A review of the record reveals that the board denied plaintiffs applications, in part, because of plaintiffs failure to adequately address the community’s need for the project and the project’s impact on storm drainage and flooding. The submission of information in response to these concerns would constitute a material change. Consideration of new applications supported by new information would, thus, not run afoul of the edicts of the doctrine of res judicata. The trial court’s amended judgment is not erroneous on this basis.
Affirmed.
Michigan Waste Systems, Inc v Dep’t of Natural Resources, 157 Mich App 746, 760; 403 NW2d 608 (1987), lv den 428 Mich 900 (1987); Cyrus v Calhoun Co Sheriff, 85 Mich App 397, 399; 271 NW2d 249 (1978).
90 Mich App 543, 547; 282 NW2d 387 (1979), quoting Toan v McGinn, 271 Mich 28, 34; 260 NW 108 (1935).
Childers v Kent Co Clerk, 140 Mich App 131, 135; 362 NW2d 911 (1985).
Kortering v Muskegon, 41 Mich App 153, 154; 199 NW2d 660 (1972).
The township ordinance also sets forth specific requirements for fast-food restaurant special uses regarding size, location and layout of the land parcel. It is undisputed that the parcel of land at issue in this case satisfied these specific requirements for fast-food restaurant special uses.
On appeal, plaintiff attempts to argue that condition 6 is, itself, invalid as not authorized by enabling legislation. However, this issue was not raised before the trial court. This Court will not review issues that were not raised before and decided by the trial court. Bajis v Dearborn, 151 Mich App 533, 536; 391 NW2d 401 (1986), lv den 426 Mich 874 (1986).
On appeal, plaintiff argues that the appropriate ground for relief from the trial court’s original judgment is that set forth in MCR 2.612(C)(1)(f): "Any other reason justifying relief from the operation of the judgment.” However, we believe that resort to this catchall is unnecessary in view of the applicability of the specific grounds of MCR 2.612(A)(1).
101 Mich App 431, 433; 300 NW2d 586 (1980), lv den 411 Mich 909 (1980).
See Stokus, supra at 434.
153 Mich App 489, 497; 396 NW2d 456 (1986).
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] |
C.W. Simon, Jr., J.
Plaintiff appeals as of right from the Wayne Circuit Court’s order granting defendant’s motion for summary disposition pursuant to MCR 2.116(C)(7) on the basis of governmental immunity under Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984), reh den 421 Mich 1202 (1985).
On September 22, 1980, police officers arrived at the Prudential Health Club where John E. Marlin’s body had been discovered. Although there was no identification on the decedent’s clothing, the police discovered decedent’s car located outside of the club. Decedent’s wallet and miscellaneous identification were found inside the car. The police confiscated decedent’s personal effects, including identification, and his body was taken to the county morgue. Although the police were aware of decedent’s name and address, they failed to notify Constance F. Marlin, decedent’s wife, about her husband’s death.
Mrs. Marlin, concerned about her husband’s absence, filed a missing persons report with the Birmingham Police Department. After conducting an extensive search, the Birmingham police issued a press release concerning decedent’s disappearance. On October 15, 1980, the Detroit Police Department informed the Birmingham Police Department that decedent had been in the morgue since September 22, 1980.
Mrs. Marlin brought suit against Detroit Police Officers Robert Hislop, Barbara Weide, William Dildy, and Moses Skelton, as well as Harold Oakley, chief investigator of the Wayne County Morgue, and Werner Spitz, Wayne County Medical Examiner, alleging negligence and gross negligence in failing to inform her of her deceased husband’s whereabouts. The trial court denied plaintiff’s motion to amend to add the City of Detroit and the County of Wayne as defendants. The claims against Oakley and Spitz were dismissed by an order granting summary disposition on the basis of governmental immunity. A jury returned a verdict of no cause of action in favor of the remaining four defendants.
On October 14, 1983, plaintiff filed a suit in federal court against the six defendants named in the original state court action as well as the City of Detroit, Wayne County, Detroit Police Department, and the Wayne County Medical Examiner’s office. Plaintiff’s federal suit alleged negligence, gross negligence, intentional misconduct, violation of statute, and violation of both the state and federal constitutions. However, all the federal and state law claims were abandoned except for those under 42 USC 1983. By order dated December 12, 1984, plaintiff’s federal complaint under 42 USC 1983 was dismissed.
On October 13, 1983, plaintiff filed the present suit against Oakley, Spitz, the City of Detroit, and Wayne County, raising the same tort and constitutional violation claims raised in the prior suit. On March 24, 1986, the trial court dismissed the action as against defendants Oakley, Spitz, and Wayne County.
On January 23, 1987, defendant City of Detroit moved for summary disposition pursuant to MCR 2.116(C)(7) on the basis that plaintiff failed to plead facts in avoidance of governmental immunity. The trial court granted defendant’s motion, and plaintiff now appeals.
Plaintiff first argues that defendant City of Detroit should be held vicariously liable for the actions of its police officers because those acts were ultra vires. Plaintiff contends that, since the acts were contrary to MCL 52.208; MSA 5.953(8), the acts did not constitute the exercise or discharge of a governmental function. Plaintiff claims that the officers violated this statute by failing to deliver decedent’s personal effects to plaintiff, decedent’s next of kin, and, therefore, they were acting outside of their statutory authority. We disagree.
MCL 52.208; MSA 5.953(8) provides:
In all cases arising under the provisions of this act, in the absence of next of kin of the deceased person, the senior police officer being concerned with the matter, and in the absence of police, the county medical examiner or his deputy, shall take possession of all property of value found upon the person of the deceased, make an exact inventory report thereof and shall deliver the property, unless required as evidence, to the person entitled to the custody or possession of the body. If the personal property of value is not claimed by the person entitled to the custody or possession of the body of the decedent within 60 days, the property shall be turned over to an administrator or other personal representatives of the decedent’s estate to be disposed of according to law; or, if required as evidence, the property within 60 days after the termination of any proceeding or appeal period therefrom permitted by law shall be turned over to the person entitled to the custody or possession of the body, or to an administrator or other personal representative of the decedent’s estate. Nothing in this section shall affect the powers and duties of a public administrator.
Defendant is immune from tort liability for injuries arising out of the exercise or discharge of a governmental function. Boss, supra, p 591. A governmental function is an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law. Id., p 620. Conversely, an agency is liable for injuries resulting from its ultra vires activity, or activity which is not expressly or impliedly mandated or authorized by constitution, statute, or other law. Id.
In analyzing whether an agency is performing a governmental function, this Court focuses on the general activity rather than the specific conduct involved at the time the alleged tort occurred. Id., p 625; Smith v Dep’t of Public Health, 428 Mich 540, 608; 410 NW2d 749 (1987), reh den 429 Mich 1207 (1987), cert gtd sub nom Will v Michigan Dep’t of State Police, — US —; 108 S Ct 1466; 99 L Ed 2d 696 (1988).
Generally, the omission of an act is not sufficient to elevate even intentional omissions of a duty, i.e., negligence, to an ultra vires intentional tort. The commission of an act, rather than an omission, is required. Richardson v Jackson Co, 159 Mich App 766, 772; 407 NW2d 74 (1987), lv gtd 430 Mich 857 (1988). In Richardson, the plaintiff brought suit against Jackson County for failure to properly install buoys at a public swimming area. This Court held that defendant’s failure to obtain a permit for the placement of the buoys, as required by statute, constituted an ultra vires act. The Richardson decision was premised on the legislative mandate that no person shall permit bathing at a public swimming area absent compliance with the Marine Safety Act, which requires a permit for the placement of buoys. Thus, under Richardson, an omission or failure to satisfy a condition precedent to statutory authority is an illegal or ultra vires act for which there is no governmental immunity. Id., p 774.
Recently, this Court in Roberts v City of Troy, 170 Mich App 567; 429 NW2d 206 (1988), distinguished the Richardson decision by noting that the defendant in Roberts required no special license or special permit for its authority to engage in the complained-of activity. In Roberts, the plaintiff brought suit against the City of Troy for failure to carry out cell checks once every sixty minutes as required by law. The Roberts Court found that, since the City of Troy has authority to operate a lockup facility, the failure to perform cell checks constituted negligence, not ultra vires or illegal activity. Id., p 576.
Likewise, in the present case, defendant City of Detroit has the authority to operate a police department, and requires no special permit or license to do so. Generally, the operation of a police department is a governmental function. Hill v City of Saginaw, 155 Mich App 161, 170; 399 NW2d 398 (1986). Further, the general activity of returning personal effects to relatives is expressly authorized under MCL 52.208; MSA 5.953(8). We find that the failure to return decedent’s property to plaintiff constitutes negligence and not an ultra vires act.
Second, plaintiff argues that the trial court erred in granting defendant’s motion for summary disposition on plaintiff’s constitutional violation claim. We agree.
Paragraph 27 of plaintiff’s complaint alleges that defendant denied plaintiff her right to equal protection and due process of law under Const 1963, art 1, §§ 2, 17. In Michigan, governmental immunity is not available in a state court action where it is alleged that the state violated a right conferred by the state constitution. Smith, supra, p 544; Burdette v Michigan, 166 Mich App 406, 408-409; 421 NW2d 185 (1988). Under Smith, defendant cannot claim immunity where plaintiff alleges that defendant has violated the state constitution by virtue of custom or policy. Smith, supra, p 544. Pursuant to Smith, we remand for a determination of whether plaintiff has pled a violation of the Michigan Constitution by virtue of a governmental custom or policy.
Affirmed in part, reversed in part and remanded. We do not retain jurisdiction.
Because defendant failed to raise the argument below, we decline to address its contention that plaintiffs state constitutional violation claim is barred under the doctrine of collateral estoppel in view of the federal court’s earlier dismissal of plaintiffs suit. Joe Dwyer, Inc v Jaguar Cars, Inc, 167 Mich App 672, 685; 423 NW2d 311 (1988). It is without merit in any event because the same ultimate issues were not litigated in the earlier federal suit. Dumas v Auto Club Ins Ass’n, 168 Mich App 619, 634; 425 NW2d 480 (1988). Here, plaintiff abandoned her state constitutional claims prior to the federal court’s dismissal of her complaint. | [
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Per Curiam.
Plaintiff appeals as of right from the circuit court’s order dismissing her lawsuit with prejudice when plaintiff’s attorney failed to negotiate a settlement with defendant’s attorney and failed to appear. We reverse and remand for trial before a different judge.
The instant matter was scheduled for a one-day bench trial on Monday, May 2, 1988. Defendant notes that eight pretrial conferences and nine trials were also scheduled. The pretrial conferences were held until midmorning. Defendant also claims that three cases were settled before trial. Trial was held in the fourth scheduled matter until noon according to defendant, but until 2:30 p.m. according to plaintiff. In the interim, another case was settled.
Thereafter, jury selection was held in a criminal case. At some point during the afternoon, the circuit court instructed the parties in the instant case to discuss the possibility of settlement. While defendant’s attorney attempted to do so, plaintiff and her attorney remained in the courtroom and, thereby, refused to participate in negotiations.
At 4:42 p.m., the circuit court informed the jury that the criminal trial would last two or three days. The circuit court also noted that the jury would have to report at 10:00 a.m. on May 3 because the court had other matters it was regularly scheduled to hear on Tuesday mornings.
After the jury left the courtroom, the court continued the instant case and the one scheduled before it until May 3. Plaintiffs attorney asked permission to address the court. The court refused, noting that it was in recess. Plaintiffs attorney then stated that he would like to put something on the record. The court again stated that it was in recess. Plaintiffs attorney agreed, but indicated that he was entitled to put something on the record. The court again stated: "We’re in recess.”
Plaintiffs attorney asserts that at 8:45 a.m. on May 3 he returned to the circuit court and learned that other matters were scheduled for the morning. At that time, plaintiffs attorney went to 36th District Court, where he had fifteen eviction matters scheduled for May 3. Plaintiffs attorney had mentioned these prior commitments to defendant’s attorney on May 2. Defense counsel claims that he arrived at 9:00 a.m. and his client arrived at 10:00 A.M.
At 11:30 a.m. on May 3, the circuit court called the instant case. On the record, defendant’s attorney stated that he saw plaintiffs attorney at 9:15 a.m. and had not seen plaintiff. Defendant’s attorney stated: "[YJesterday, Mr. Minka suggested that he had fifteen minutes worth of matters in the 36th District Court.” The court noted that plaintiffs attorney had not attempted to reach a settlement as it had requested and then the court held:
I did, in fact, ask that this matter be continued to this morning since it was a non-jury trial and I could take it at break.
Since Mr. Minka has failed to appear, this case is hereby dismissed.
Plaintiffs attorney claims that he arrived at circuit court at 12:05 p.m. and subsequently learned that the case was dismissed. Plaintiffs attorney denies that the circuit court informed him that it intended to try the instant case during breaks in the criminal case. Plaintiffs attorney notes that the criminal trial lasted through May 6.
A trial court may in its discretion dismiss a suit where plaintiff and counsel fail to appear at a duly scheduled trial. Williams v Kroger Food Co, 46 Mich App 514; 208 NW2d 549 (1973). The trial court’s determination will not be disturbed on appeal unless there has been an abuse of that discretion. Id.
Plaintiffs attorney argues that on May 2 he wanted to inform the circuit court that prior negotiations proved fruitless and that he had other matters scheduled on May 3 in 36th District Court. Plaintiffs attorney also argues that he wanted to ascertain when the instant case would actually be tried given that the court had instructed the jury that the criminal case would last for two or three days. Finally, plaintiffs attorney claims that he wanted to object to the court’s action in failing to inform the parties of the status of their case until the end of the day and having the parties ready to proceed without knowledge of whether and when their case would be called.
Under these facts, we believe that the circuit court abused its discretion when it dismissed the instant case. We begin by noting that settlements cannot be forced upon parties. Indeed, there are numerous opportunities for parties to negotiate and, in fact, in some cases penalties for failure to do so reasonably. MCR 2.403 and 2.405. Plaintiffs attorney in this case indicates that numerous attempts at settlement had proven fruitless and that he wanted to inform the judge that he believed that subsequent negotiations would prove as fruitless.
Moreover, we note that there is no record to support the circuit court’s claim that it told the parties that it would try the instant case during breaks in the criminal trial in progress and plaintiffs attorney denies being so informed. In any event, trying a one-day case during breaks in a two- or three-day criminal trial requires, at least, the presence of the parties’ attorneys throughout that time. The parties and witnesses will also be required to await the breaks taken during the criminal trial. While the circuit court’s time is valuable, so is that of the citizens it serves. Likewise, the court must realize that legal practitioners have many commitments. Where the instant case was scheduled for a one-day bench trial, the court acted unreasonably when it refused plaintiffs attorney the opportunity to address the court regarding the adjournment.
Reversed and remanded for further proceedings before a different judge. | [
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V. L. Washington, J.
Defendant appeals as of right from a January 29, 1988, order of the Ingham Circuit Court, sitting as the Court of Claims, which granted plaintiff’s motion for summary disposition entitling plaintiff to indemnity for a judgment in the amount of $73,459.38 entered against it in an underlying negligence action. We affirm.
The Michigan Department of Social Services leased office space from Oakman Grand Associates in Detroit, Michigan. As part of the lease agreement, Oakman agreed to purchase liability insurance naming dss as an additional insured party. This liability insurance was subsequently purchased from Aetna Casualty & Surety Company and provided that Aetna would defend and indemnify dss for bodily injury and property damage claims against dss, subject to the following exclusion:
This insurance does not apply or shall not be construed as being applicable to liability for damages arising out of bodily injury to any person or damage to property of others resulting from the sole negligence of the state, its officers, employees or agents.
On August 23, 1979, Anita Ray was injured when she slipped and fell at the dss office. She sued the dss and Oakman, alleging that the cause of her injury was a wet substance on the floor of the office waiting room. In December, 1984, a jury trial was held in Wayne Circuit Court, with the jury deciding the claim relating to Oakman and Judge Edward M. Thomas, sitting as the Court of Claims, deciding the claim relating to dss. The jury found no cause for action against Oakman. However, Judge Thomas found dss liable for Mrs. Ray’s injury due to its failure to warn visitors of the probable presence of spills in the office. This Court affirmed liability against dss, but remanded for a reconsideration of damages. See Ray v Dep’t of Social Services, 156 Mich App 55; 401 NW2d 307 (1986), lv den 428 Mich 891 (1987).
Aetna did not defend dss at trial, although dss requested Aetna to do so in a declaratory action brought prior to trial. In an order issued May 1, 1985, Ingham Circuit Judge Robert Holmes Bell held that Aetna had a duty to defend dss in the negligence action. However, in a declaratory judgment issued July 25, 1985, Judge Bell determined that Aetna did not have a duty to indemnify dss for Mrs. Ray’s judgment against dss.
This Court subsequently issued an opinion and order reversing Judge Bell’s declaratory judgment. Michigan Dep’t of Social Services v Aetna Casualty & Surety Co, unpublished opinion per curiam of the Court of Appeals, decided January 29, 1987 (Docket No. 87171). This Court stated that summary disposition in favor of Aetna was improper because Aetna had not carried its burden of demonstrating that the policy exclusion applied in this case. Under the exclusion, Aetna would be relieved of its duty to pay dss only if dss was proven to be "solely negligent.” This Court agreed with case law which considered the phrase "sole negligence” to mean one hundred percent negligence. This Court then held that Aetna would have no duty to pay dss only if Mrs. Ray’s injuries resulted one hundred percent from dss’s negligence. This Court noted that, in the underlying action against dss, Judge Thomas did not hold that dss’s negligence was the only cause; rather, Judge Thomas’ decision was made only as a Court of Claims judge deciding against a single defendant, dss, and the issue of whether anyone else was negligent was not before him.
On remand, the Ingham Circuit Court, Lawrence M. Glazer, J., granted summary disposition in favor of dss, entitling it to indemnification because, as a matter of law, Aetna would not be able to prove that dss was in fact solely negligent in causing Mrs. Ray’s injury.
On appeal, Aetna claims that Judge Glazer erred in granting summary disposition in favor of dss because an issue of material fact existed as to whether Aetna could prove sole negligence on the part of dss. We disagree.
Dss’s motion for summary disposition was brought pursuant to MCR 2.116(C)(10). The standard for this Court’s review of such a motion was concisely set forth in WB Cenac Medical Service, PC v Michigan Physicians Mutual Liability Co, 174 Mich App 676, 681; 436 NW2d 430 (1989):
A motion for summary disposition brought under MCR 2.116(0(10), based on the lack of a genuine issue of material fact, tests whether there is factual support for the claim. In ruling on the motion, the trial court must consider the affidavits, pleadings, depositions, admissions and other documentary evidence submitted by the parties. MCR 2.116(G)(5). The opposing party must show that a genuine issue of fact exists. Giving the benefit of all reasonable doubt to the opposing party, the trial court must determine whether the kind of record that might be developed would leave open an issue upon which reasonable minds could differ. Weeks v Bd of Trustees, City of Detroit General Retirement System, 160 Mich App 81, 84; 408 NW2d 109 (1987). A reviewing court should be liberal in finding that a genuine issue of material fact exists. Rizzo v Kretschmer, 398 Mich 363, 372; 207 NW2d 316 (1973). A court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome. Rizzo, supra at 371.
The party opposing a motion for summary disposition has the burden of showing that a genuine issue of disputed fact exists. Fulton v Pontiac General Hospital, 160 Mich App 728, 735; 408 NW2d 536 (1987). The opposing party may not rest upon mere allegations or denials in the pleadings but must, by affidavit or other documentary evidence, set forth specific facts showing that there is a genuine issue for trial. MCR 2.116(G)(4). Should the opposing party fail to make such a showing, summary disposition is appropriate. Fulton, supra at 375-376; Rizzo, supra at 372. [Metropolitan Life Ins Co v Reist, 167 Mich App 112, 118-119; 421 NW2d 592 (1988), lv den 431 Mich 876 (1988).]
In the instant case, Aetna had the heavy burden of proving that dss was one hundred negligent with respect to Mrs. Ray’s injuries—that there were no concurrent proximate causes. At the very least, this obligation included production of evidence from which it could be inferred that the wet substance on the floor of the waiting room resulted from the negligence of dss, a dss employee, or someone within the control of dss. However, to establish that dss was solely negligent, the even heavier burden was on Aetna to prove that a client or some other non-DSS employee did not spill the wet substance or assist in causing it. Aetna’s responses to discovery requests filed by dss after remand clearly indicate a lack of specific facts or documentary evidence in support of its position. Rather, Aetna’s responses merely refer to the possibility that dss was negligent as to causing the wet substance’s presence on the floor. As previously noted, mere allegations or speculation that evidence may be forthcoming is not enough to establish an issue of material fact. MCR 2.116(G)(4).
Moreover, the record does not disclose any real possibility that Aetna would provide such factual support. Specifically, the record establishes that between 250 and 500 clients passed through the waiting room on the day Mrs. Ray was injured. Since clients were permitted by custom to bring food and beverages to the office, the burden of overcoming the reasonable inference that one of these clients was responsible for the wet substance, particularly eight years later, must be considered a deficiency which could not be rectified. Consequently, the trial court’s grant of summary disposition to dss was not an abuse of discretion.
Our conclusion is not affected by Aetna’s assertion that discovery was still pending. As a general rule, summary disposition is premature if granted before discovery on a disputed issue is complete. Dingeman v Reffitt, 152 Mich App 350, 358-359; 393 NW2d 632 (1986). The question is whether further discovery stands a fair chance of uncovering factual support for the opposing party’s position. Mowery v Crittenton Hospital, 155 Mich App 711, 716; 400 NW2d 633 (1986).
MCR 2.301(A) clearly envisions that discovery should be completed within one year. It is undisputed that the denial of further discovery is within the trial court’s discretion. Masters v City of Highland Park, 97 Mich App 56, 60; 294 NW2d 246 (1980), lv den 409 Mich 937 (1980). In the instant case, Aetna had been involved in the action for approximately three years prior to plaintiffs filing of its final motion for summary disposition. Significantly, Aetna was made aware of its burden with respect to the sole negligence issue as of the date of this Court’s remand order—exactly one year prior to Judge Glazer’s grant of summary disposition. We find that a sufficient period of time for discovery occurred. It does not appear that further discovery would uncover facts supportive of Aetna’s heavy burden of proof.
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M. Warshawsky, J.
Defendant pled guilty to breaking and entering an unoccupied dwelling, MCL 750.110; MSA 28.305, and larceny in a building, MCL 750.360; MSA 28.592, and was sentenced to eighty months to ten years and thirty-two months to four years imprisonment, respectively. Defendant moved for resentencing on the ground that defendant’s expunged juvenile record had been improperly considered by the trial court in imposing sentence. The motion was denied. Defendant appeals his sentence as of right. We remand for resentencing.
Former MCR 5.913, "Expungement of Records,” now MCR 5.925(E), provided:
The court may retain a child’s juvenile court delinquency records other than those involving motor vehicle violations until the child is 27, when they must be expunged. The court may retain a child’s motor vehicle citations and summonses until the child is 19, when they must be expunged. The court shall expunge neglect records 25 years after its jurisdiction over the last child in the family ends. The court may at any time order the expungement of its own files and records and any law enforcement agency files and records pertaining to a juvenile, including fingerprints and photographs, on a showing of good cause._
At the time of his sentencing on August 12, 1986, defendant was thirty-one years of age. The Sentencing Information Report (sir) contained defendant’s entire juvenile record under defendant’s "prior criminal record” history. The report stated that a prior Sentencing Information Report dated March 7, 1974, alleged defendant had committed "several acts of Breaking and Entering, Destruction of Property, and Larceny” and that defendant was determined to be a delinquent. The report continued that petitions had been filed against defendant in June, 1979, for breaking and entering, larceny and car theft as well as two petitions filed in November, 1979, for breaking and entering.
At sentencing, the trial judge noted that defendant "since [his] days as a juvenile” had "established a pattern” of criminal activity. Based on this information, the court indicated that defendant had a very poor prognosis for rehabilitation. The court made two additional references to defendant’s criminal record in sentencing defendant and in justifying a departure from the sentencing guidelines. Although the guidelines recommended a minimum sentence range of eighteen to thirty-six months on defendant’s breaking and entering conviction, the sir recommended the maximum possible term of incarceration, the sentence which defendant received.
At sentencing, defendant made no objection to the inclusion in the sir of his juvenile record. However, defendant timely moved for resentencing on March 9, 1987. See People v Walker, 428 Mich 261; 407 NW2d 367 (1987).
On appeal, defendant argues that the trial court erred in considering his juvenile record by reason of former MCR 5.913, which provided for mandatory expungement. We agree.
Although the general rule is that a defendant’s juvenile record may be considered by a sentencing judge in imposing sentence for an adult offense, see People v McFarlin, 389 Mich 557; 208 NW2d 504 (1973), our Supreme Court has, in no uncertain terms, placed a limit on the relevance of one’s past juvenile record. Former MCR 5.913 provided an automatic mechanism by which the juvenile record of a former offender was expunged at the age of twenty-seven, the age at which an individual has been an "adult” for purposes of criminal penalty for a period of ten years. See MCL 712A.3; MSA 27.3178(598.3); MCR 5.903(A)(10). In our view, an unexpunged juvenile record may create a lifelong handicap because of the stigma it carries. We believe former MCR 5.913 was designed to remedy such a situation.
In In re Faketty, 121 Mich App 266; 328 NW2d 551 (1982), this Court discussed the use of a defendant’s juvenile record by the Department of Corrections after mandatory judicial expungement pursuant to JCR 1969, 13. There, plaintiff petitioned the probate court for expunction of his juvenile record from the court’s files and from the files of the Department of Corrections. The probate court granted plaintiffs petition as to the records maintained by the court but denied the petition as to the Department of Corrections. We affirmed, agreeing that the Department of Corrections was not a "law enforcement agency” within the meaning of the court rule. We also recognized that mandatory expunction applied to probate court records. Id., p 272. In dissent, Judge Brennan also discussed the unavailability of expunged juvenile records to "the courts and other agencies” and stated "[s]ince the rule prohibits the courts from having access to the juvenile record at [the sentencing] stage, I think it naturally follows that the rule was also intended to prohibit the Department of Corrections . . . from having access to the record.” Id., p 273. We agree with the dicta contained in the Faketty case that the court rule prohibits the courts from considering, at sentencing, a defendant’s expunged juvenile record.
In the present case, we conclude that defendant’s juvenile record was not relevant at sentencing and, accordingly, should not have been contained in the sir. We remand this case for a resentencing before a different judge. In addition, defendant is entitled to an amended sir in which the irrelevant information is to be stricken. See MCL 771.14(5); MSA 28.1144(5).
We find it unnecessary to address defendant’s remaining issues. We do not retain jurisdiction.
Remanded for resentencing. | [
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Per Curiam.
Defendant, Garden City, appeals as of right from a jury verdict and judgment which awarded plaintiff, Albert Messecar, damages for injuries sustained by Clayton Messecar as a result of a fall on a sidewalk in Garden City. On appeal, defendant contends that plaintiffs claims are barred by governmental immunity, the trial court abused its discretion in allowing plaintiff to amend his complaint to allege intentional nuisance, and plaintiff did not properly plead and prove his intentional nuisance claim. We affirm.
On August 25, 1982, eighty-three-year-old Clayton Messecar was walking along Henry Ruff Road in Garden City. After crossing Dawson Street, he walked about eight to ten feet on a path before reaching the sidewalk. Defendant owned the berm between Dawson Street and the sidewalk. When the sidewalk was installed in 1958, it was level with the berm. The path eroded, leaving a six- to eight-inch rise between it and the sidewalk.
Clayton Messecar lost his balance while stepping up onto the sidewalk from the path. He fell on his forehead. The fall produced a subdural hematoma (blood clot on the brain). The hematoma caused Clayton Messecar’s death.
Plaintiff filed a negligence complaint against defendant. Defendant’s motion for summary disposition based upon governmental immunity was denied. Plaintiff was allowed to amend his complaint to allege intentional nuisance. The jury returned a verdict in favor of plaintiff on the negligence count, but found that the conditions about which he complained did not constitute an intentional nuisance.
We first consider whether plaintiff’s claims are barred by governmental immunity. The defective highway exception to governmental immunity exists where a governmental agency’s failure to maintain a highway under its jurisdiction in reasonable repair causes bodily injury or property damage. MCL 691.1402; MSA 3.996(102). This exception applies to municipal corporations such as defendant. MCL 691.1401(a) and (d); MSA 3.996(101)(a) and (d). The term "highway” includes sidewalks. MCL 691.1401(e); MSA 3.996(101)(e).
Under MCL 691.1402; MSA 3.996(102), municipalities are liable for the defective construction or maintenance of public highways, roads, and streets open for public travel, including bridges, sidewalks, crosswalks, and culverts on the highway. Davis v Chrysler Corp, 151 Mich App 463, 469; 391 NW2d 376 (1986), lv den 428 Mich 869 (1987). The defective highway exception extends to berms. Michonski v Detroit, 162 Mich App 485, 494-495; 413 NW2d 438 (1987). Defendant is liable for the defective construction and maintenance of the sidewalk and berm that produced the drop-off where Clayton Messecar fell.
Defendant claims that plaintiff failed to plead facts in avoidance of governmental immunity because he did not allege a defect in the sidewalk itself. A plaintiff must plead facts in his or her complaint in avoidance of immunity. Hoffman v Genesee Co, 157 Mich App 1, 6; 403 NW2d 485 (1987), lv den 428 Mich 902 (1987). In his complaint, plaintiff alleged that the sidewalk was defective and that the approach to the sidewalk from the curb or edge of the street was negligently constructed in such a way as to be subject to erosion or washout, constituting a hazard to travel. Plaintiff pled sufficient facts in avoidance of immunity.
Defendant’s next contention is that the trial court abused its discretion in allowing plaintiff to amend his complaint to allege intentional nuisance. Defendant further contends that plaintiff did not properly plead and prove his intentional nuisance claim. Our Supreme Court recently announced that there is no intentional nuisance exception to governmental immunity. Hadfield v Oakland Co Drain Comm’r, 430 Mich 139, 172; 422 NW2d 205 (1988). We decline to further discuss Hadfield or defendant’s arguments about plaintiffs intentional nuisance claim because the jury found in defendant’s favor on that claim. Any error would be harmless and not constitute grounds for reversal. MCR 2.613(A).
Affirmed. | [
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Per Curiam.
The people appeal as of right from an order by the trial court suppressing evidence seized in a vehicle search and dismissing the case. Recorder’s Court Judge John Shamo first found that the search of the vehicle was illegal and suppressed the evidence of the marijuana which was seized from it. He then found prejudice to defendant in the delay between issuance of the warrant and defendant’s arrest and dismissed the case. We reverse.
On August 12, 1985, officers went to defendant’s residence to arrest defendant and his girlfriend on a warrant duly issued by the 36th District Court. Defendant was not at home when the officers first arrived, The officer in charge later saw defendant walking toward the house from a park across the street. The officer knew from past experience with defendant that defendant had a habit of parking his car away from the house and walking to the house. Defendant was arrested pursuant to the warrant and searched. Packets of marijuana were found in his shirt and pants pockets and were seized. The car keys defendant had in his hands were also seized. Defendant was advised of his rights and stated that he had walked, not driven. Because of the amount of marijuana seized from defendant and because defendant was carrying car keys in his hand, the officers went toward the park to look for the car to seize under the forfeiture statute. The keys fit a Pontiac located in the park. In the car, the officers found and seized a large quantity of marijuana, packaging materials, and papers in defendant’s name.
On January 7, 1986, a warrant was issued for defendant’s arrest, based on the August, 1985, seizure. Defendant was not arrested on this warrant until August, 1986. The officer in charge had made efforts to locate defendant prior to this time, but was unsuccessful, although court records showed that defendant had been before Recorders Court on various matters on eight separate occasions between January, 1986, and August, 1986. He was, in fact, ultimately arrested at the courthouse.
The people first claim that the trial court erred in suppressing the evidence supporting the charge of possession with intent to deliver marijuana. In a prior, unpublished decision involving this same defendant and the same arresting officers, we had occasion to consider the probable cause necessary for seizure of property under the forfeiture statute. People v McCullum, unpublished opinion per curiam of the Court of Appeals, decided December 3, 1986 (Docket No. 90356), lv den 428 Mich 883 (1987), cert den — US —; 108 S Ct 456; 98 L Ed 2d 396 (1987). That case had no precedential value under MCR 7.215(C)(1), but we find its reasoning persuasive and reach the same conclusion.
At the times applicable in this case, the forfeiture statute, MCL 333.7521(1); MSA 14.15(7521X1), provided in relevant part:
The following property is subject to forfeiture:
(a) A controlled substance . . . which has been manufactured, distributed, dispensed, used, possessed, or acquired in violation of this article.
(d) A conveyance, including ... [a] vehicle . . . used or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of property described in subdivision (a). . . .
MCL 333.7522; MSA 14.15(7522) provides in relevant part:
Property subject to forfeiture under this article may be seized upon process issued by the circuit court having jurisdiction over the property. Seizure without process may be made in any of the following cases:
(a) The seizure is incident to an arrest or a search warrant....
* * *
(d) There is probable cause to believe that the property was used or is intended to be used in violation of this article.
The Michigan forfeiture statute essentially parallels its federal counterpart. 21 USC 881(a)(4) provides in relevant part:
All conveyances, including . . . vehicles . . . which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of . . . (controlled substances are subject to forfeiture).
21 USC 881(b) provides in relevant part:
Any property subject to civil forfeiture to the United States . . . may be seized by the Attorney General upon process . . . except that seizure without such process may be made when—
(1) the seizure is incident to an arrest or a search under a search warrant. . . .
* * *
(4) the Attorney General has probable cause to believe that the property is subject to civil forfeiture under this subchapter.
In discussing the federal forfeiture statute, in response to the government’s argument that seizure of a vehicle without a warrant was justified, the Fourth Circuit Court of Appeals has pointed out that
[t]he probable cause under 21 USC 881(b)(4) is different from probable cause in most search cases. The probable cause necessary for a search to be reasonable is probable cause to believe that law enforcement officials will find in a certain place contraband or evidence of a crime. . . .
Section 881 of 21 USC is a seizure statute, however, not a search statute .... If the Attorney General has probable cause to believe "that the property has been used or is intended to be used in violation of this subchapter,” the government may seize the property. If the Attorney General believes that the property "has been used” in violation of the drug laws, that means that he has probable cause to believe that the property belongs to the United States. [United States v Kemp, 690 F2d 397, 401 (CA 4, 1982).]
In discussing the government’s right to seize under § 881(b)(4), the Fifth Circuit Court of Appeals noted:
Under the statute’s clear language, no process is required to perfect forfeiture when the property "has been used” in violation of the drug laws. Nor does the statute place any exigent circumstances requirement on the warrantless seizure. [United States v One 1978 Mercedes Benz Four-Door Sedan, 711 F2d 1297, 1302 (CA 5, 1983).]
In a forfeiture proceeding, the probable cause which the government must show is "a reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion.” United States v $22,287, United States Currency, 709 F2d 442, 446-447 (CA 6, 1983). Circumstantial evidence may be sufficient to establish probable cause to support forfeiture even when no actual transaction has been witnessed. United States v $364,960 in United States Currency, 661 F2d 319, 324-325 (CA 5, 1981).
Applying these standards to our forfeiture statute, we must conclude that the trial court clearly erred in ruling that the officers did not have probable cause to believe that defendant’s vehicle had been used to transport controlled substances. The testimony showed that defendant had a habit of parking his car some distance from his residence and then walking there. Defendant, arrested pursuant to a valid warrant, was found with marijuana on his person. He approached his residence holding car keys in his hands, keys which fit a car parked at the park from whence he came. These circumstances certainly amount to more than a mere suspicion that the vehicle was being used in violation of the forfeiture statute. Since the vehicle was lawfully seized, the search which disclosed the marijuana in the vehicle was legal. South Dakota v Opperman, 428 US 364; 96 S Ct 3092; 49 L Ed 2d 1000 (1976).
The people also claim that the trial court erred in dismissing the case on the basis of a prejudicial prearrest delay.
We have stated, with regard to prearrest delay, that
once a defendant has shown some prejudice, the prosecution bears the burden of persuading the court that the reason for the delay is sufficient to justify whatever prejudice resulted. This approach places the burden of coming forward with evidence of prejudice on the defendant, who is most likely to have facts regarding prejudice at his disposal. The burden of persuasion rests with the state, which is most likely to have access to facts concerning the reasons for delay and which bears the responsibility for determining when an investigation should end. [People v Bisard, 114 Mich App 784, 791; 319 NW2d 670 (1982).]
In dismissing the case, the trial court stated:
The Court: This matter was heard sometime ago and I gave the People an opportunity to respond and I already made one ruling in the matter. The search of the vehicle was improper and I’m going to rule today that I informed you I would grant defense counsel’s motion that there was prejudice shown by the Defendant and that the delay was inexplainable and was — I can’t say deliberate, but it may have been, but there was prejudice to the Defendant in this Court’s opinion, the delays that the Defendant had been in court on numerous occasions over a period of years and the officer sort of sat on the warrant for a lengthy period of time for no explainable reason and I informed Miss Lewis at the last hearing that I was going to grant defense counsel’s motion and I gave her an opportunity to respond further if she so desired to find some law that would convince me otherwise and I would grant defense counsel’s motion to dismiss.
It is apparent from the foregoing that the trial court equated the delay with prejudice to the defendant, but articulated no reasons other than the delay. Defendant, however, presented no evidence whatsoever of any prejudice to him as a result of the delay. Since defendant did not meet his burden of showing some prejudice, the prosecutor was not required to show reasonableness in the delay. The trial court erred in dismissing the case.
Reversed and remanded for trial. | [
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Per Curiam.
Defendant, Joseph Fetterman, appeals as of right from a July 22, 1987, order granting summary disposition to plaintiff, Iowa Kemper Insurance Company. Plaintiff, the insurer of defendant Michael Ryan, a linebacker on the Central Michigan University football team, had brought the within action seeking a declaratory judgment that it had no obligation under a homeowner’s policy to defend or indemnify Ryan for liability arising out of a lawsuit filed against him by Fetterman.
In the underlying action, Fetterman alleged personal injuries resulting from an assault and battery perpetrated by Ryan and others. The complaint alleged:
6. That on or about March 7, 1986, at approximately 11:30 the Plaintiff was a pedestrian lawfully upon Crawford Road, at or near its intersection with Broomfield Road, in the City of Mt. Pleasant, County of Isabella, when he was as saulted and battered against his will by the Defendants herein, intentionally, willfully and wantonly, or negligently without provocation including, but not limited to being punched, kicked, pummelled, slapped and other means of physical contact after the Defendants had exited an automobile in which they were passengers.
7. That immediately prior to the Plaintiff being battered by the Defendants herein, he was placed in fear of being physically battered by the Defendants, they having the present wherewithal to accomplish the same.
8. That after said incident occurred, and approximately 200 yards further down Crawford Road, the Plaintiff again was assaulted and battered by the same Defendants without provocation after the Plaintiff had been placed in fear of being physically struck by the Defendants, they having the present wherewithal to accomplish the same.
9. That although the acts of the Defendants herein were intended by the Defendants, the injuries which were sustained by the Plaintiff were not intended.
In the within action, plaintiff claimed that Fetterman’s lawsuit fell outside the coverage provided by Ryan’s insurance policy. The policy provided:
This policy does not apply:
1. Under Coverage e — Personal Liability and Coverage f — Medical Payments to Others:
f. to bodily injury or property damage which is either expected or intended from the standpoint of the insured.
The trial court granted plaintiff’s motion for summary disposition based upon MCR 2.116(0(10), for lack of a genuine issue of material fact. The court held that Fetterman’s injuries either were intended or expected from the standpoint of the insured.
On appeal, defendant Fetterman argues that the trial court erred because a genuine issue of material fact existed. We disagree. Á motion for summary disposition pursuant to MCR 2.116 (0(10) tests the factual support for a claim. After considering the pleadings, affidavits, depositions and other available evidence, the court must be satisfied that the claim asserted cannot be supported at trial because of some deficiency which cannot be overcome. Giving the benefit of all reasonable doubt to the Opposing party, the court must determine whether the kind of record that might be developed would leave open an issue upon which reasonable minds could differ.
The allegations contained in the underlying complaint generally determine an insurer’s duty to defend. However, mere allegations of negligence in a transparent attempt to trigger insurance coverage by characterizing intentionally tortious conduct as negligent will not persuade the court to impose a duty to defend.
Here, the trial court granted summary disposition after reviewing the depositions of Ryan, Fetterman and several other witnesses to the pair of fights. All of the depositions, including Fetter-man’s own, indicated that Ryan intentionally and repeatedly struck his victim. The only significant difference between the several versions of the story was about who was the aggressor._
Defendant Fetterman makes much of the fact that Ryan had been drinking and that, at one point in his deposition, Ryan stated that he did not intend to hit his victim. However, nothing else in the record indicated that Ryan’s striking Fetter-man was anything but volitional. Ryan’s bare statement that he did not intend to hit Fetterman contradicted every other shred of evidence. Ryan himself maintained that he struck Fetterman in self-defense. Fetterman stated that it was "raining fists.” This statement belied Fetterman’s claim of negligence on Ryan’s part. Bodily injury is "expected or intended” from the standpoint of the insured if it is the natural and foreseeable result of the insured’s intentional act.
Based upon the record before it, the trial court properly concluded that no factual development was possible from which reasonable minds could find anything but injuries to Fetterman "expected or intended from the standpoint of the insured.”
Affirmed._
Metropolitan Life Ins Co v Reist, 167 Mich App 112, 118; 421 NW2d 592 (1988).
Rizzo v Kretschmer, 389 Mich 363, 371; 207 NW2d 316 (1973).
Weeks v Bd of Trustees, City of Detroit General Retirement System, 160 Mich App 81, 84; 408 NW2d 109 (1987).
Frankenmuth Mutual Ins Co v Beyer, 153 Mich App 118, 122; 395 NW2d 36 (1986).
Linebaugh v Berdish, 144 Mich App 750; 376 NW2d 400 (1985).
See Yother v McCrimmon, 147 Mich App 130; 383 NW2d 126 (1985). | [
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Per Curiam.
Plaintiff appeals as of right from an order granting summary disposition in favor of defendant pursuant to MCR 2.116(0(10), no genuine issue of material fact. We affirm.
On August 9, 1985, plaintiff was injured when the motorcycle he was riding collided with a pickup truck driven by Terry Huffman. Pursuant to subsection 3114(5) of the no-fault act, MCL 500.3114(5); MSA 24.13114(5), Huffman’s insurer, Valley Forge Insurance Company, paid to plaintiff no-fault benefits including medical expenses.
At the time of the accident, plaintiff was covered through his employer by a group disability insurance policy issued by defendant. Plaintiff also applied to defendant for payment of medical expense benefits under this group policy. Defendant rejected plaintiff’s claim, based on the group policy’s coordination of benefits clause, which provides:
SECTION 4 — COORDINATION OF BENEFITS (COB)
Cob may limit benefits when an individual is entitled to benefits from more than one source. It does this by relating an individual’s total benefits from various sources to his or her total expenses. The cob provision is widely used in the insurance industry. Its purpose is to keep the cost of insurance down by limiting benefits to no more than 100% of his or her eligible expenses. Therefore, the benefits payable under this policy may be reduced, as appropriate under the rules set out below, so that from all sources, an insured individual should not be paid for more than 100% of his or her eligible expenses.
Cob takes into consideration benefits from many sources, but cob does not apply to individual policies. CExcept that, Lincoln National does coordinate with individual no-fault auto insurance policies, by whatever name called, as shown below.)
Following is a list of the sources (plans) with which this policy coordinates:
* * *
13. Individual no-fault auto insurance, by whatever name called. Except that, this will not apply to the extent that any auto insurance policy issued pursuant to the Automobile No-Fault Insurance Act of the State of Michigan contains a deductible or is by its terms secondary to (or excess over) the benefits provided under this policy. [Emphasis added.]
When defendant continued to reject plaintiffs repeated demands for payment, plaintiff commenced the instant action for benefits under the group policy issued by defendant. On defendant’s motion for summary disposition, the trial court concluded that, as a matter of law, plaintiff was not entitled to medical benefits in light of the coordination of benefits provision of the policy.
On appeal, plaintiff first argues that the coordination of benefits provision contained in defendant’s group policy is invalid under §3(2) of the Coordination of Benefits Act, MCL 550.253(2); MSA 24.13673(2). That statute provides:
(2) Any such ¡group disability benefít] policy or certifícate which contains a coordination of benefits provision shall provide that benefits under the policy or certificate shall not be reduced or otherwise limited because of the existence of another nongroup contract which is issued as a hospital indemnity, surgical indemnity, specified disease, or other policy of disability insurance as defined in section 3400 of the insurance code of 1956, Act No. 218 of the Public Acts of 1956, being section 500.3400 of the Michigan Compiled Laws. [Emphasis added.]
Plaintiff maintains that since a no-fault policy insures against accidental bodily injury, see MCL 500.3105; MSA 24.13105, such a policy falls within the definition of "policy of disability insurance” set forth at MCL 500.3400; MSA 24.13400 ("any policy or contract of insurance against loss resulting from . . . bodily injury ... by accident . . .”). Plaintiff thus concludes that, under the Coordination of Benefits Act, defendant is prohibited from coordinating its group disability policy with a nongroup no-fault policy such as Huffman’s policy with Valley Forge.
The flaw in plaintiff’s argument is that the Legislature expressly made enactment of the Coordination of Benefits Act contingent upon the enactment of SB 562, enacted as 1984 PA 65, MCL 500.3610a; MSA 24.13610(1). See MCL 550.255; MSA 24.13675. MCL 500.3610a; MSA 24.13610(1) provides in relevant part:
(1) A group disability insurance policy may contain provisions for the coordination of beneñts otherwise payable under the policy with beneñts payable for the same loss under other group insurance; automobile medical payments insurance; or coverage provided on a group basis by hospital, medical, or dental service organizations, by union welfare plans, or employee or employer benefit organizations. [Emphasis added.]
Since the Legislature specified that enactment of this provision was necessary before the Coordination of Benefits Act could become effective, we think it clear that the Legislature intended § 3610a to control the coordination of group disability policies with nongroup no-fault policies notwithstanding the more general provisions of the Coordination of Benefits Act. This conclusion is consistent with the well-settled rule of statutory construction that, when there is an apparent conflict between two statutes, the specific statute controls and must be viewed as an exception to the general statute. In re Johnson Estate, 152 Mich App 200; 394 NW2d 136 (1986). Since § 3610a is an exception to the Coordination of Benefits Act’s prohibition against coordination provisions in group disability policies, the group policy issued by defendant could properly coordinate with a non-group no-fault automobile policy.
Plaintiff alternatively argues that the policy issued by defendant does not coordinate with Huffman’s no-fault policy under the express language of defendant’s coordination of benefits provision. According to plaintiff, the language in the coordination of benefits provision that defendant "does coordinate with individual no-fault automobile insurance policies” creates an ambiguity as to the meaning of the word "individual.” Plaintiff argues that the word should be construed to mean "the insured” and that the policy language should be read to mean that defendant "does coordinate with the group disability policyholder’s no-fault automobile insurance policies.” Plaintiff reasons that, had defendant intended coordination with no-fault policies purchased by third parties, it would have made that intent explicit, citing American & Foreign Ins Co v Allied Plumbing & Heating Co, 36 Mich App 561; 194 NW2d 158 (1971), lv den 387 Mich 753 (1972).
Plaintiff’s contention that the use of the word "individual” is ambiguous is without merit. It is clear when reading both the policy at issue in the present case and the insurance code itself that, in the juxtaposition of the terms "individual” and "group,” "individual” is intended to indicate "non-group.” Had the term "individual” been intended to indicate the named insured, it seems likely that the policy would refer to "the individual’s,” "the insured individual’s,” or "the named insured’s” no-fault auto insurance if seeking to limit coordination of benefits in that manner, especially given the standard rules of construing policies against the insurer.
A fair reading of this coordination of benefits clause leads inexorably to the conclusion that any no-fault benefits, by whatever name called and regardless of their source, payable to plaintiff, were subject to coordination of benefits payable under his coverage by defendant’s policy. Accordingly, we find no error in the trial court’s order granting summary disposition in favor of defendant.
Affirmed. | [
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Per Curiam:.
The parties appeal as of right from orders of the Ingham Circuit Court. This case involves a dispute over plaintiff Patricia A. Russell’s eligibility for supplemental benefits available under MCL 791.263a; MSA 28.2323(1) to Department of Corrections employees injured as a result of an inmate assault. We affirm the decision of the circuit court and remand for further proceedings consistent with this opinion.
The facts are not in dispute,. Russell was assaulted in October, 1980, by an inmate while employed as a teacher by the Department of Corrections at the Michigan Reformatory in Ionia. The trauma of the assault rendered her totally disabled and unable to work by October, 1981, and she was awarded workers’ compensation benefits. She also received supplemental benefits as provided for by the above statute. This dispute concerns actions by the Department of Corrections to terminate those benefits either on the basis of a department-wide layoff that occurred in November, 1982, or a Civil Service Commission rule limiting supplemental benefits to one hundred weeks.
In July, 1983, plaintiffs filed their complaint protesting the wrongful termination of the supplemental assault benefits. A number of orders and opinions have resulted including an order remanding to arbitration the question of the propriety of Russell’s layoff. On appeal are issues raised by the remand order and the court’s grant of summary disposition in favor of plaintiffs on the impropriety of the one hundred-week limit.
Defendant argues that the court erred in its opinion that the Department of Corrections could not impose a one hundred-week limit on the supplemental benefit. The supplemental benefit statute is silent as to how long supplemental benefits are to be paid. The statute provides for only two conditions for eligibility: (1) that the person be on the payroll; and (2) that the person be receiving workers’ compensation. If these two conditions are met the implication is that supplemental benefits will continue indefinitely. The language of the statute is plain and unambiguous and this Court is not free to go beyond the obvious meaning of the language. Detroit v Redford Twp, 253 Mich 453, 455-456; 235 NW 217 (1931).
That the Civil Service Commission has adopted a policy limiting the number of weeks for supplemental benefits is not dispositive. While this Court will defer to decisions of the commission, it will do so only where the decision is authorized by law. Const 1963, art 6, §28; O’Neill v Civil Service Comm, 121 Mich App 256, 260; 328 NW2d 547 (1982). Supplemental disability compensation is not an employment-related activity which comes under the authority of the commission. Oakley v Dep’t of Mental Health (On Remand), 136 Mich App 58; 355 NW2d 650 (1984). Therefore, the commission policy is not controlling.
Nor do the cases cited by defendant compel us to limit benefits in direct contradiction to the statute. In Michigan State Police Command Officers’ Association, Inc v Dep’t of Public Safety, 80 Mich App 278; 263 NW2d 47 (1977), the commission’s rules were appropriately consulted to resolve a question of statutory interpretation and the meaning to be given a key phrase. In Jesse v Dep’t of Mental Health, 130 Mich App 350; 343 NW2d 548 (1983), the Court did not hold that supplemental assault benefits may be arbitrarily discontinued after one hundred weeks. The Court upheld the Department of Mental Health’s standard procedure of discharg ing employees who have been on leave in excess of one hundred weeks. The Court found that benefits could then be discontinued because the employee was no longer on the payroll. Neither case addresses the situation here, where the defendant is asking us not to interpret or apply a statute but to expand the statute beyond its plain meaning.
The circuit court was correct in not upholding the one hundred-week limit.
On cross-appeal, plaintiffs argue that the determination of benefits is a statutory right to be determined by the court and not the arbitrator. We agree that eligibility under the statute is an issue within the circuit court’s jurisdiction. See, e.g., Samuel v Dep’t of Mental Health, 140 Mich App 101, 105-107; 364 NW2d 294 (1985). However, that does not negate the arbitrator’s role in making findings of fact on related issues where appropriate. See Moss v Dep’t of Mental Health, 159 Mich App 257; 406 NW2d 203 (1987). The record indicates that a grievance was filed under plaintiffs’ collective bargaining agreement regarding the propriety of Russell’s layoff prior to the court’s order. As provided for under the agreement, the issue was submitted to binding arbitration. The arbitrator found the layoff to be proper.
The circuit court correctly concluded that the question of whether the November 6, 1982, layoff was proper was for the arbitrator to determine. Plaintiffs do not dispute that a proper layoff would remove Russell from the payroll for purposes of the statute. The arbitrator’s finding that the layoff was proper is determinative of the factual question of whether Russell was "on the department’s payroll” for purposes of the assault statute. Moss, supra, p 263. However, that does not mean that Russell is no longer eligible for benefits. At oral argument defense counsel agreed that Russell would have been recalled in November, 1984, thereby apparently reinstating her "on the department’s payroll.” We therefore remand to the circuit court for a determination of the benefits due Russell in light of the arbitrator’s decision and the November, 1984, recall.
Affirmed and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.
The supplemental benefit statute provides for an assault benefit for employees of a state penal institution who are injured on the job as a result of an attack, MCL 791.263a; MSA 28.2323(1). Substantially identical statutes provide the same assault benefits for employees of the Department of Mental Health, MCL 330.1113; MSA 14.800(113), the Department of Social Services, MCL 400.1c; MSA 16.401(3), and the Department of State, MCL 38.1181; MSA 3.366(1).
The benefit statute for penal employees has not been the subject of judicial review or interpretation. However, we rely throughout this opinion on cases where this Court has considered the substantially identical mental-health statute. | [
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N. J. Kaufman, J.
We granted the people leave to appeal from the circuit court’s order declaring MCL 722.633(2); MSA 25.248(13X2) unconstitutional and dismissing the complaint and warrant charging that defendant failed to report an instance of suspected child abuse, a misdemeanor.
Originally charged in the 52nd District Court with failing to report as required by § 3 of the Child Protection Law, MCL 722.623; MSA 25.248(3), defendant moved to quash the complaint and warrant on the grounds that the statute was unconstitutionally vague, overbroad, and that it violated Const 1963, art 4, § 25. After the district court denied defendant’s motion, the Oakland Circuit Court granted defendant leave to appeal and reversed. In turn, this Court granted the people leave to appeal on February 11, 1988, and we reverse the order of the circuit court.
The victim’s mother initiated family therapy with defendant after suspecting that her husband had sexually molested their nine-year-old daughter. Defendant, a psychologist and family therapist, rendered therapy and treatment to the victim, the victim’s mother and the victim’s father.
During individual therapy sessions in early 1986, the victim told defendant about recurring incidents in which her father fondled her breasts. When defendant questioned the victim’s father about these allegations at a therapy session, defendant claims that the victim’s father made it clear to defendant that if he had touched the victim, such touchings were completely accidental and not done for the purpose of sexual arousal or gratification.
The victim herself later reported her father’s conduct to a school counselor, who reported the incident to Protective Services. A petition based on the victim’s allegations of sexual abuse was filed in the probate court. Contending that defendant had reasonable cause to suspect that the victim had been molested but had failed to report the suspected child abuse as required by MCL 722.623; MSA 25.248(3) of the Child Protection Law, the county prosecuting attorney’s office brought the disputed misdemeanor charge of failure to report, MCL 722.633(2); MSA 25.248(13)(2), against defendant.
Section 3 of the Child Protection Law, MCL 722.623; MSA 25.248(3), requires that
(1) A physician, coroner, dentist, medical examiner, nurse, a person licensed to provide emergency medical care, audiologist, psychologist, family therapist, certified social worker, social work technician, school administrator, school counselor or teacher, law enforcement officer, or duly regulated child care provider who has reasonable cause to suspect child abuse or neglect immediately, by telephone or otherwise, shall make ... [a] report ... of the suspected child abuse or neglect to the department ....
(2) The . . . report shall contain the name of the child and a description of the abuse or neglect. If possible, the report shall contain the names and addresses of the child’s parents, the child’s guardian, the persons with whom the child resides, and the child’s age. The report shall contain other information available to the reporting person which might establish the cause of the abuse or neglect and the manner in which the abuse or neglect occurred.
(4) The . . . report required in this section shall be mailed or otherwise transmitted to the county department of social services of the county in which the child suspected of being abused or neglected is found.
(5) Upon receipt of a . . . report of suspected child abuse or neglect, the department may provide copies to the prosecuting attorney and the probate court of the counties where the child suspected of being abused or neglected resides and is found.
(6) If the report indicates a violation of section . . . 750.145c of the Michigan Compiled Laws, and the department believes that the report has basis in fact, the department shall transmit a copy of the . . . report to the prosecuting attorney of the counties in which the child resides and is found.
Section 3 of the Child Protection Law was amended by 1984 PA 418, § 1 to require psychologists and family therapists to report. Prior to March 29, 1985, the effective date of this amendment, practitioners such as defendant were under no statutorily imposed duty to report.
Section 13 of the Child Protection Law, MCL 722.633(2); MSA 25.248(13)(2), provides:
A person required to report an instance of sus pected child abuse or neglect who knowingly fails to do so is guilty of a misdemeanor.
Defendant first claims, as he did below, that the Child Protection Law, MCL 722.621 et seq.; MSA 25.248(1) et seq., is unconstitutionally overbroad because it violates defendant’s First Amendment rights to associate in legal endeavors and invades the privacy of the family and those in association to cure private family problems. Defendant argues that there is no compelling state interest in "suspicious” behavior, whether or not the suspicion is reasonable.
Legislative enactments are cloaked with a presumption of constitutionality. Where a statutory provision would otherwise be unconstitutional, it is the Court’s duty to give the statute a narrow construction so as to render it constitutional if such a construction is possible without doing violence to the Legislature’s interest in enacting the statute. People v O’Donnell, 127 Mich App 749, 757; 339 NW2d 540 (1983).
The doctrine of overbreadth is primarily applied to First Amendment cases where an overbroad statute prohibits constitutionally protected conduct. People v McCumby, 130 Mich App 710, 714; 344 NW2d 338 (1983), lv den 419 Mich 911 (1984). A successful overbreadth challenge allows a person charged with violating a statute to escape punishment based on the First Amendment right of others impinged upon by the statute although under a narrower, properly drawn statute, his own behavior could be punished because it is not so protected.
However, not every First Amendment right supports an overbreadth challenge. Woll v Attorney General, 409 Mich 500, 534-535; 297 NW2d 578 (1980). The overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep where conduct and not merely speech is involved. Broadrick v Oklahoma, 413 US 601, 614-615; 93 S Ct 2906; 37 L Ed 2d 830 (1973).
While §3 does not prevent a psychologist or family therapist from treating those of his patients who have engaged in child abuse, there is little doubt that it places such a patient at greater risk that her or his misconduct will be discovered and prosecution will follow. In the context of a family, § 3 invades its privacy to the extent that the family members’ collective desire to seek treatment for the offender and risk the continued abuse of the victim rather than initiating criminal proceedings may not be honored. However, we do not believe that this invasion constitutes a constitutionally impermissible violation of a family’s First Amendment right of privacy. A family does not have a protected First Amendment right to undertake a course of action which may do little or nothing to protect the child victim from continued abuse.
The United States Supreme Court has long recognized that a state has an interest in protecting the welfare of children and in seeing that they are safeguarded from abuses which might prevent their growth into free and independent well-developed citizens. Ginsberg v New York, 390 US 629; 88 S Ct 1274; 20 L Ed 2d 195 (1968). Even assuming that the reporting requirement does invade the protected rights of defendant and his patients, the state has the constitutional power to regulate for the well-being of its children. 390 US 637-639.
We distinguish the cases cited by defendant in support of his overbreadth argument from the issue presented here. Rather, we find this case to be analogous to Whalen v Roe, 429 US 589; 97 S Ct 869; 51 L Ed 2d 64 (1977), where physicians and patients challenged the constitutionality of New York statutes requiring that the state be provided with the names and addresses of all persons obtaining certain prescription drugs. The United States Supreme Court found that the statutes did not deprive individuals of their right to seek medical advice from their physician and obtain needed medication. Accordingly, the Court held that the patient-identification requirements did not invade any of the plaintiffs’ constitutional rights or liberties.
Further, a person generally lacks standing to challenge overbreadth where his own conduct is clearly within the contemplation of the statute. This is so even where there is some marginal application which might infringe on First Amendment activities. Parker v Levy, 417 US 733; 94 S Ct 2547; 41 L Ed 2d 439 (1974). In this case, the victim told defendant, and the victim’s father did not deny, that the abuse occurred. Therefore, defendant had more than a "reasonable suspicion” of its occurrence. The Legislature intentionally used "reasonable cause to suspect” as the threshhold for requiring a report in the belief that public policy is better served by investigating possibly unfounded reports of child abuse than by failing to investigate where abuse may prove to have occurred. Such an interpretation is consistent with the remedial history of the statute, which the Legislature amended to include psychologists and family therapists following the Attorney General’s suggestion that these professionals were not covered by the terms of the original statute. See OAG 1979-1980, No 5815, p 1075.
Defendant next claims that the Child Protection Law is void for vagueness because it offers no reasonably precise standard to those charged with adhering to or enforcing the law. Defendant contends that the phrase "reasonable cause to suspect” is not clearly defined and does not give him fair notice of what conduct the statute proscribes. A vagueness challenge must be examined in light of the facts at hand. People v Harbour, 76 Mich App 552, 558; 257 NW2d 165 (1977), lv den 402 Mich 832 (1977). A defendant has standing to raise a vagueness challenge to a statute only if the statute is vague as applied to his conduct. People v Mitchell, 131 Mich App 69, 74; 345 NW2d 611 (1983). Even though a statute may be susceptible to impermissible interpretations, reversal is not required where the statute can be narrowly construed so as to render it sufficiently definite to avoid vagueness and where defendant’s conduct falls within that prescribed by the properly construed statute. Harbour, supra.
A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. People v Gilliam, 108 Mich App 695, 699; 310 NW2d 843 (1981); People v Herron, 68 Mich App 381, 382; 242 NW2d 584 (1976). However, a statute is not vague when the meaning of the words in controversy can be fairly ascertained by reference to judicial determinations, the common law, dictionaries, treatises or even the words themselves, if they possess a common and generally accepted meaning. McCumby, 714.
We find that the words "reasonable cause to suspect” speak for themselves and provide fair notice of the conduct expected in reporting suspected child abuse. Based upon the fact that defendant was told by his patient, the victim, that her father was fondling her breasts, the § 3 reporting provisions are not vague.
In this case, the circuit court suggested that defendant, in the course of exercising professional judgment, might have concluded that the information supplied to him indicating that the victim was being abused was inaccurate or some kind of fantasy. That hardly makes the statute vague or overbroad. Defendant had reasonable suspicion of child abuse, but concluded that his suspicions were not factually founded. With respect to defendant’s legal obligations under § 3, it was not for him to make this determination, but for the responsible investigative agencies, such as the Department of Social Services, to make. While defendant is free to decide that the victim’s allegations are untrue for purposes of rendering professional treatment, he is not free to arrogate to himself the right to foreclose the possibility of a legal investigation by the state. The state has different interests, and its sovereignty is offended by child abuse.
Defendant next contends that § 11 of the Child Protection Law, MCL 722.631; MSA 25.248(11), which abrogates all legally recognized privileged communication except that between attorney and client for purposes of reports required to be made, or the admission of evidence in a civil child protection proceeding resulting from such a report, also amends by implication the psychologist-patient privilege, MCL 330.1750; MSA 14.800(750), in violation of our Michigan Constitution, Const 1963, art 4, §25. This claim is without merit. Amendment by implication is not constitutionally prohibited in every instance, e.g., where, as here, an act is complete within itself. People v Stimer, 248 Mich 272, 292-293; 226 NW 899 (1929); Wayne Co Prosecutor v Recorder’s Court Judge, 92 Mich App 433, 444; 285 NW2d 318 (1979), lv den 408 Mich 905 (1980).
Defendant’s last claim is that the Child Protection Law is unconstitutional because it violates his Fourth Amendment and Fifth Amendment rights, as well as those of his patients.
The first prong of this argument is that defendant and his clients have a Fourth Amendment right to privacy from unreasonable seizure of oral evidence, citing Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967). However, this case is readily distinguishable from Katz; here, no governmental eavesdropping or intrusion or electronic surveillance was involved.
With regard to the second prong of the argument, we find the defendant has no standing to assert a Fifth Amendment privilege. United States v Goldfarb, 328 F2d 280, 281-282 (CA 6, 1964), cert den 377 US 976; 84 S Ct 1883; 12 L Ed 2d 746 (1964); Paramount Pictures Corp v Miskinis, 418 Mich 708, 715; 344 NW2d 788 (1984); In re Moser, 138 Mich 302, 305; 101 NW 588 (1904). Moreover, defendant is not an agent of the government, therefore any information a patient chooses to divulge to him is not protected by the Fifth Amendment.
We are concerned with the difficulty pointed out by the circuit court of child abusers in need of psychological counseling who are dissuaded by the § 3 reporting provisions from obtaining unfettered access to psychiatric services due to the risk of prosecution for any abuse they have perpetrated. However, as noted by the United States Supreme Court in Colorado v Connelly, 479 US —; 107 S Ct 515; 93 L Ed 2d 473 (1986), the difficulty in analyzing this problem under the Fifth Amendment is that this approach fails to recognize the essential link between coercive activity of the state on the one hand and a resulting confession by a defendant on the other hand. In this regard, the Connelly Court held that the flaw in this constitutional argument is that it would expand the previous line of voluntariness cases into a far ranging requirement that courts must devine a defendant’s motivation for speaking or acting as he did even though there is no claim that governmental conduct coerced his decision. 479 US —.
We congratulate the parties and amicus curiae on their excellent briefs.
Reversed and remanded. | [
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Per Curiam.
Defendant appeals as of right from his conviction by a jury of breaking and entering an occupied dwelling with intent to commit a felony, MCL 750.110; MSA 28.305, and of assault with a dangerous weapon, MCL 750.82; MSA 28.277. Following his conviction, defendant pled guilty to being an habitual offender, MCL 769.10; MSA 28.1082. Defendant was sentenced to concurrent terms of four to twenty-two-and-one-half years imprisonment on the breaking and entering conviction and two to six years on the assault conviction._
Defendant’s convictions arose out of an altercation which occurred on the evening of October 7, 1985, at the home of Bessie Hornes, defendant’s girlfriend, between defendant and Hornes. Defendant raises several issues on appeal which we will address serially.
i
Defendant’s first set of issues concern the testimony of Bessie Hornes. Defendant argues that he was deprived of a fair trial because Hornes was intimidated by the prosecutor’s threats of perjury.
A prosecutor may impeach a witness in court, but may not intimidate the witness, in or out of court. People v Pena, 383 Mich 402, 406; 175 NW2d 767 (1970). Although the issue of prosecution intimidation usually arises in the context of alleged intimidation of defense witnesses, this Court has condemned as well intimidation by the prosecution of its own witnesses. People v Crabtree, 87 Mich App 722, 725; 276 NW2d 478 (1979). In such cases this Court examines the pertinent portion of the record and evaluates the alleged wrongful acts in context on a case-by-case basis. People v Callington, 123 Mich App 301, 305; 333 NW2d 260 (1983).
At the preliminary examination held on October 17, 1985, Hornes testified that defendant had come to her home at approximately 11:15 p.m. on October 7, 1985, and broke into her home by kicking down the front door. Hornes stated that she called the police to ask for help. While she was on the phone with the police, defendant came into her bedroom, asked her to whom she was talking, took the phone from her, and, while the phone was off the hook, started beating Hornes with a three- to four-foot iron pipe. Hornes testified that she did not swing the pipe at or beat defendant before defendant beat her.
At trial, defense counsel indicated to the court his belief that Hornes had been intimidated into testifying by the prosecutor. The court held a hearing outside the presence of the jury to determine whether or not the witness had been intimidated. Hornes initially testified that she wanted the prosecution to drop the charges against the defendant and that she had communicated her desire to the prosecution. Hornes had indicated to the prosecution that "there were differences in things that [she] wanted them to understand that weren’t really exactly as they came out at the preliminary examination.” In response to defense counsel’s question whether the prosecution had told her she must tell it as it was told at the preliminary examination, even if that wasn’t true, Hornes stated, "Right. To tell it like I stated it before.” However, on direct examination, cross-examination, and in response to questions from the court, Hornes testified that she hadn’t been told to say anything but the truth, and that she remembered being told by a police officer that she could go to jail for perjury if she got on the witness stand and said something that wasn’t the truth. Hornes stated that she was not afraid to testify to the truth, that she would testify truthfully, and that she just wanted to be able to tell the jury that she had wanted the charges dropped.
After the trial court was advised that Hornes had asked defense counsel about invoking her Fifth Amendment right against self-incrimination, the trial court appointed an attorney to consult with Hornes regarding her testimony and Fifth Amendment rights. Later in the afternoon, after Hornes had had an opportunity to consult with an attorney on her Fifth Amendment right, the court ruled on the question of intimidation of the witness:
The Court: Alright. The Court at this time is prepared to rule on question [sic] of intimidation which we had an evidentiary hearing before.
After reviewing the entire matter, the testimony that was given, it would appear definitely that the witness is a reluctant witness, but her reluctance seems to arise from her relationship with the defendant rather than anything that she claims the prosecutors’ office might have said. That is, the prosecutor himself or any member of the prosecuting attorneys’ office has said to her.
She also seemed to be upset because the prosecutor would not let her drop the charges or listen to her further explanation of the events that were surrounding — that surrounded the commission of this alleged crime.
However, after being fully examined, she appears to be willing to testify fully about the incident and accurately to the best of her knowledge, even assuming that her testimony is different than that previously given at the time of the preliminary examination and this she even said in spite of the fact that she has later been charged with giving false information to the police.
Therefore, assuming the prosecutors’ office has made some statements about perjury or about a possible charge for giving false information to the police, she has not been affected by this, and therefore, is not intimidated in any way.
Alright. Therefore, the Court does find that she is a proper witness and may testify.
Defense counsel moved for a mistrial, which was denied by the trial court. The court indicated, however, that the evidence pertaining to Hornes’ willingness to testify would be admissible as it concerned the issue of credibility. The court further reiterated to Hornes her right not to testify to anything that might tend to incriminate her and permitted Hornes’ appointed counsel to sit by her during her testimony to give Hornes the opportunity to consult with him prior to answering any question.
Hornes’ trial testimony was essentially the same as her testimony at the preliminary examination, except that she claimed that she ñrst struck defendant with a pipe and the defendant then took the pipe from her and hit her on her arm, back, and head. In response to defense counsel’s questioning on cross-examination, Hornes testified that she told the prosecutor that she did not want to testify and that she wanted the charges dropped, and that the story she had previously told the police was different from what had actually occurred. Hornes stated that the prosecutor told her "to be in court and just get up there and testify to the truth or to testify to what I said before.” On redirect examination, the prosecutor impeached Hornes with her preliminary examination testimony. Hornes explained that she had thought about her testimony after the preliminary examination and that is why she called the prosecution to explain that the incident was not as she had initially related.
Our review of the record fails to disclose witness intimidation by the prosecution such that defendant’s right to call witnesses in his defense was impaired. The record indicates that, from the time the issue was first raised, the trial court deftly and conscientiously pursued a determination as to whether intimidation had in fact occurred and to take any and all necessary corrective measures.
In People v Crabtree, supra, the fourteen-year-old victim informed the prosecutor on the day before trial that she wanted to drop criminal sexual conduct charges against defendant and explained that defendant had not touched her and that a police officer had pressured her into making the charge in the first place. The prosecutor responded with a thinly veiled threat of perjury. At trial, this episode was revealed to the court and jury only through defense counsel’s cross-examination of the victim-witness. On redirect, the prosecutor announced for the record that he did not intend to prosecute the victim as a perjurer, that he was only interested in the truth. In a split decision, this Court stated:
We recognize the dilemma of the prosecutor when confronted with such a situation. But there were three additional problems which conclusively tilted the balance here toward reversal. First, neither the trial court nor either of the counsel asked the young witness if she had in fact been intimidated by the threat. Justice Adams in People v Pena, supra, suggested this, in particular, was a question to be asked by the trial court. Here, the prosecutor even requested that the judge ask the witness the question, but the trial judge declined. Second, the prosecutor made no effort to bring the matter to the attention of the court, by examination or otherwise. Rather, a thorough cross-examination of the witness by defense counsel yielded the information which, it is clear, would never have been revealed otherwise. And finally, the prosecutor’s announcement that he would not prosecute her for perjury — coming after she had testified against the defendant — was a blatant attempt to bolster the witness’s credibility. Such stands as an independent error, but also combines, in aggregate, with the prosecutor’s improper handling of the entire incident of the witness’s attempted recantation. [Crabtree, supra, pp 725-726.]
The "additional problems” which led to reversal in Crabtree did not occur in this case. Here, an extensive evidentiary hearing was conducted regarding the alleged intimidation where the witness was thoroughly questioned by the prosecutor, defense counsel and the court. Given the fact that Hornes did testify differently at the trial than at the preliminary examination (i.e., on the issue of whether she had hit the defendant with the iron pipe before he hit her), it does not appear that Hornes was intimidated into testifying consistent with her preliminary examination testimony. Even though her testimony had changed, the prosecutor sought neither to bolster nor discredit Hornes’ testimony by announcing whether or not he intended to bring perjury charges against Hornes. Finally, the court took an additional protective measure of assigning counsel to Hornes and allowing her to fully consult with counsel regarding her testimony. Under the circumstances, we find no intimidation of Hornes by the police or prosecutor depriving defendant of his right to a fair trial.
ii
Defendant next contends that he was deprived of a fair trial because the trial court encouraged Hornes to assert her Fifth Amendment rights in the jury’s presence.
After defendant had presented several witnesses, defense counsel indicated that Hornes had asked to again be put on the stand. Outside the presence of the jury, the judge confirmed that Hornes had talked to her appointed counsel, that she wished to testify, and that she understood that she had a right not to testify to anything that might tend to incriminate her. Defense counsel then called Hornes as a defense witness. Hornes stated that she just wanted to invoke her Fifth Amendment privilege. The judge and counsel then left the courtroom to confer. Upon their return, defense counsel asked:
Bessie, is it true that just immediately before you testified that you told me yesterday that when you testified that you only testified partly to the truth or that your testimony was only partly true. Didn’t you just tell me that?
The trial court then reminded the witness of her privilege against self-incrimination. After some further discussion outside the presence of the jury, and a further question from defense counsel, the witness indicated that she did not want to answer on the basis of her Fifth Amendment privilege.
A lawyer may not knowingly call a witness knowing that the witness will claim a valid privilege not to testify. People v Dyer, 425 Mich 572; 390 NW2d 645 (1986). In People v Poma, 96 Mich App 726, 733; 294 NW2d 221 (1980), this Court stated:
We hold that it is inherently prejudicial to place a witness on the stand who is intimately related to the criminal episode at issue, when the judge and prosecutor know that he will assert the Fifth Amendment privilege. When a judge determines at the evidentiary hearing that the intimate witness will either properly or improperly claim the protection against self-incrimination, he must not allow this witness to be called to the stand.
In the instant case, it was defense counsel who recalled the witness, Hornes, to the stand. Given that Hornes had already testified and had indicated to the court that she wanted to again testify, and given that it was defense counsel who called the witness, we cannot find that the court erroneously allowed Hornes to be recalled, knowing that she would assert the Fifth Amendment.
Nor do we find prejudicial error in the court’s having readvised Hornes of her Fifth Amendment privilege in front of the jury. While, as a general rule, it is preferable to inform the witness of his or her Fifth Amendment rights out of the jury’s presence, People v Callington, supra, p 307, the danger of witness intimidation sought to be eliminated by the rule did not exist in this case. Here, neither the prosecutor nor the court were attempting to turn a willing witness into one who refused to testify. See Callington, supra. Under the circumstances and given defense counsel’s question to the witness (which essentially asked the witness whether she had perjured herself the previous day), the trial court’s reminding the witness of her privilege against self-incrimination was a legitimate warning.
hi
Defendant next assigns error to certain of the trial court’s instructions to the jury. This Court reviews jury instructions in their entirety in order to determine if error requiring reversal occurred. People v Bender, 124 Mich App 571, 574; 335 NW2d 85 (1983). Even where instructions are imperfect, there is no error requiring reversal if the instructions "fairly presented to the jury the issues to be tried and sufficiently protected the rights of the defendant.” Bender, supra, pp 574-575.
Defendant first claims that the trial court should have instructed the jury regarding witness Hornes’ invocation of her Fifth Amendment right. However, defendant at no time requested such an instruction. Absent a request for the instruction, the court’s failure to sua sponte give the instruction is not error requiring reversal. MCL 768.29; MSA 28.1052.
Defendant next claims that the following instruction should not have been given:
[The Court]: Now, you are not to consider whether the victim in this case requested dismissal of the charges in determining the guilt or innocence of the defendant, except as it may bear on her creditability [sic].
Following defense counsel’s objection, the trial court ruled that the instruction was reasonable in view of the closing arguments and to make clear to the jury that the victim’s desire not to pursue the charges was not evidence that the crime had not been committed.
Defendant contends that the instruction amounted to a charge that, because Hornes wanted to drop the charges against defendant, Hornes was lying. We disagree. It is proper for the court to instruct the jury to assess the credibility and incredibility of the witnesses. People v Monroe, 3 Mich App 165, 169; 141 NW2d 679 (1966), lv den 378 Mich 734 (1966), cert den 388 US 923; 87 S Ct 2126; 18 L Ed 2d 1372 (1967). The court’s instruction was not improper.
Defendant next challenges the court’s instruction on self-defense. The trial court read CJI 7:9:01 on use of deadly force in self-defense. Defendant claims that the court should have instead read to the jury CJI 7:9:09 on use of nondeadly force in self-defense or defense of others. Defense counsel did not, however, object at trial to the instruction as given. This Court will not set aside the verdict unless the instruction resulted in a miscarriage of justice. People v Burgess, 153 Mich App 715, 726; 396 NW2d 814 (1986), lv den 428 Mich 868 (1987).
In People v Pace, 102 Mich App 522, 534; 302 NW2d 216 (1980), this Court defined use of deadly force as "where the defendant’s acts are such that the natural, probable, and foreseeable consequence of said acts is death.” Although we suggested in Pace, supra, p 534, n 7, that in a case where the evidence is conflicting on whether deadly force has been employed the trial court shall preface CJI 7:9:01 with a statement to the effect that "If you find that defendant utilized deadly force . . .,” that the preface was not delivered in the instant case did not create a miscarriage of justice. The testimony regarding defendant’s striking of Hornes with a large iron pipe and the evidence presented concerning Hornes’ injuries reveal acts such that the natural, probable and foreseeable consequence of such acts is death. The giving of CJI 7:9:01 was not erroneous.
Defendant additionally claims that the court erroneously charged the jury regarding the nonavailability of a defense of self-defense if the jury found beyond a reasonable doubt that defendant was engaged in a breaking and entering of Hornes’ home with intent to commit a felony and with intent to commit an assault with a dangerous weapon. Again, defendant did not object at trial and defense counsel pronounced satisfaction with the court’s instruction on self-defense. Since a defense of self-defense is unavailable to the aggressor in a conflict, People v Maclin, 101 Mich App 593, 595-596; 300 NW2d 642 (1980), we do not believe that the instruction, as given, resulted in a miscarriage of justice.
rv
Defendant next argues that the trial court abused its discretion in allowing the prosecutor to impeach defendant with evidence of a prior misdemeanor conviction for receiving and concealing stolen property under the value of $100. MRE 609, as amended by the Supreme Court in People v Allen, 429 Mich 558; 420 NW2d 499 (1988), bars impeachment by evidence of a prior conviction not punishable by more than one year of imprisonment unless dishonesty or false statement was an element of that prior offense. Allen, supra, pp 605-606, n 31. The trial in the instant case took place prior to the effective date of the amendment of MRE 609. Allen, supra, pp 608-609. Prior to amendment, MRE 609 permitted impeachment by misdemeanors involving theft, dishonesty, or false statement.
The "clarified balancing test” set forth in Allen, supra, does apply in the instant case. Allen, supra, p 609. In determining whether the trial court abused its discretion in finding that the probative value of the evidence of the prior conviction outweighed its prejudicial effect, we bear in mind the following:
For purposes of the probativeness side of the equation, only an objective analysis of the degree to which the crime is indicative of veracity and the vintage of the conviction would be considered, not either party’s need for the evidence. For purposes of the prejudice factor, only the similarity to the charged offense and the importance of the defendant’s testimony to the decisional process would be considered. The prejudice factor would, of course, escalate with increased similarity and increased importance of the testimony to the decisional process. Finally, unless the probativeness outweighs the prejudice, the prior conviction would be inadmissible. [Allen, supra, p 606.]
We do not believe the trial court abused its discretion in allowing impeachment with evidence of defendant’s 1979 misdemeanor conviction for receiving and concealing stolen property. The prior conviction was probative on the issue of defendant’s veracity. The prior conviction was completely dissimilar to the instant charge. And, while defendant’s own testimony was important to his claim of self-defense, it was not his only means of presenting his defense, as Hornes’ testimony supported defendant’s self-defense theory.
v
Defendant next argues that he was denied a fair trial by the trial court’s sustaining the prosecutor’s objection to a question to Hornes by defense counsel as to whether, in Hornes’ opinion, Hornes’ daughter had been in a position to see defendant come through the front door. Even if Hornes had been in such a position, since Hornes’ daughter testified that she heard the defendant kick down the door, and since Hornes herself testified that the defendant kicked down the door, any improper rejection of the evidence was harmless.
VI
Defendant finally asserts he is entitled to a new trial because of prosecutorial misconduct. The test of prosecutorial misconduct warranting reversal is whether the defendant was denied a fair and impartial trial.
We have reviewed each of the allegations of prosecutorial misconduct and do not find that any instance, alone or cumulatively, denied defendant a fair and impartial trial. Each of the complained-of acts was followed by an appropriate objection and adequate curative instruction by the trial court.
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Per Curiam.
Plaintiif commenced this action on August 14, 1981, alleging that defendants herein, with others not relevant to this appeal, acted in concert to exploit the basketball talents of Curtis Jones, now mentally incompetent, in derogation of duties they had to assist him in furthering his education.
Defendant City of Detroit Board of Education appeals by leave granted from the trial court’s order of April 4, 1986, denying its motion for summary disposition for failure to state a claim upon which relief could be granted and governmental immunity. We reverse.
Plaintiff cross-appeals as of right from the trial court’s order of December 3, 1982, granting accelerated judgment as to defendant North Idaho Junior College (nijc) also known as North Idaho College. We affirm.
Defendant Roily Williams appeals by leave granted from an order of March 21, 1986, denying his motion for summary disposition for failure to state a claim upon which relief could be granted and governmental immunity. We reverse, finding no jurisdiction by this state.
Plaintiff alleges that, by the fourth grade, defendant school board discovered Curtis Jones was intellectually deficient and would require special education in a school for slow learners. So placed, he graduated to a similar junior high school where he developed a talent for basketball. Plaintiff claims that, once this talent became known, he was transferred into regular Detroit junior high and high school programs solely to exploit that talent. Graduated from Northwestern High School in 1968, Jones attended nijc where, he claims, he was to play basketball while being "academically carried” for two years, whereupon he was to attend the University of Michigan on the same terms until he played out his eligibility. Plaintiff claims that defendants knew of Curtis Jones’ intellectual limitations and his inability to perform academically in college and that he could neither read nor write. Plaintiff claims that during his second year at nijc Jones was subjected to such ridicule by students who had discovered his illiteracy that he suffered a complete nervous breakdown from which he has not recovered.
Defendant school board moved for summary disposition on the grounds that plaintiff failed to state a claim upon which relief could be granted and that, in any event, plaintiff’s claims were barred by governmental immunity. The trial court denied the motion except as to plaintiff’s 42 USC 1983 claim. We reverse that part of defendant’s motion which was denied. When bringing suit against a state agency, plaintiff must plead in avoidance of governmental immunity. Hoffman v Genesee Co, 157 Mich App 1; 403 NW2d 485 (1987), lv den 428 Mich 902 (1987). Boards of education have traditionally been classified as state agencies for tort liability purposes. Here, plaintiff did plead in avoidance of governmental immunity.
The substantive rights and liabilities of parties are determinable according to the law as it stood when the causes alleged by the plaintiff accrued. Husted v Consumers Power Co, 376 Mich 41; 135 NW2d 370 (1965). Plaintiff’s cause of action arose in January, 1970, when the last element necessary to the cause of action occurred. Sovereign immunity was first codified by the Legislature in 1964, MCL 691.1401 et seq.; MSA 3.996(101) et seq. Section 7 of 1964 PA 107 was declared unconstitutional in Maki v City of East Tawas, 18 Mich App 109; 170 NW2d 530 (1969), aff'd 385 Mich 151; 188 NW2d 593 (1971). Thus, statutory immunity, MCL 691.1407; MSA 3.996(107), does not apply to shield defendant school board from tort liability. Campbell v Detroit, 51 Mich App 34; 214 NW2d 337 (1973). The constitutional defect was corrected by 1970 PA 155, effective August 1, 1970. However, causes of action arising before this date were governed by this Court’s common-law decisions. Pittman v City of Taylor, 398 Mich 41, 46; 247 NW2d 512 (1976). Although Pittman abrogated the common-law doctrine of governmental immunity, the ruling was prospective "with the exception of the instant case and any cases now pending in which an express challenge to the common-law defense of governmental immunity has been made and preserved.” Id. at 45. The Court in Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984), addressed that language in Pittman and stated that "Pittman, however, has limited applicability. Only those cases pending or filed as of November 23, 1976, involving causes of action arising before August 1, 1970 (the date § 7 became effective), could take advantage of the demise of common-law sovereign immunity.” Ross, 607, n 23. Compare Rozier v Dep’t of Public Health, 161 Mich App 591; 411 NW2d 786 (1987), lv pending (abrogation of common-law immunity announced in Pittman would be applicable to all cases started after November 23, 1976, regardless of when the cause of action arose). The Rozier panel, however, failed to address the language of Ross. We are bound to follow Ross, and, therefore, hold that defendant school board is entitled to claim that common-law governmental immunity applies.
We must now decide which definition of common-law immunity applies. When plaintiff’s claim accrued in January, 1970, "the state enjoyed immunity from tort liability . . . whenever it was engaged in the exercise or discharge of a governmental function.” Ross, 608. "Governmental function” has been defined in a variety of ways. Plaintiff, in raising the issue of governmental immunity in her pleadings, pled in avoidance of it under the definition found in Ross. Plaintiff properly preserved the issue through appeal, at all times arguing under Ross. Under Hyde v University of Michigan Bd of Regents, 426 Mich 223; 393 NW2d 847 (1986), "the rules articulated in Ross apply to all cases . . . pending either in trial or appellate courts on January 22, 1985, in which a governmental immunity issue was properly raised and preserved.” Id. at 230. In addition, Ross states: "These nine cases require us to reexamine the extent of immunity from tort liability which the governmental tort act, MCL 691.1401 et seq.; MSA 3.996(101) et seq., and the common law provide to the state and its agencies.” Ross, 591 (emphasis supplied). Thus, we apply the Ross definition of "governmental function.” Under Ross, a governmental function is any "activity which is expressly or impliedly mandated or authorized by constitution, statute or other law.” 420 Mich 620. Defendant school board would be immune from suit because it was performing a function authorized by constitution and statute. See, Const 1963, art 8, §§ 1, 2, MCL 380.1 et seq.; MSA 15.4001 et seq., MCL 380.1289; MSA 15.41289. Even under the "common good of all” test of governmental function at common law, it is clear that high school sports as part of the secondary education process is a governmental function. Richards v Birmingham School Dist, 348 Mich 490, 509-510; 83 NW2d 643 (1957), overruled on other grounds, Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961).
Immunity applies not only to negligence, but also to intentional torts if they are committed within the scope of a governmental function. Smith v Dep’t of Public Health, 428 Mich 540; 410 NW2d 749 (1987). This Court should focus on the general activity involved rather than the specific conduct. Id. at 607-610. In this case, the general activity was the maintenance of an interscholastic basketball program as a part of the general secondary education process. "Intent” is used to distinguish governmental function from nongovernmental functions, not to distinguish the nature of the tort. Id. at 611. Again, under common law, intentional torts were not an exception to governmental immunity. Moreover, a governmental agency will not be vicariously liable for a tort committed by its officer, employee, or agent, acting during the course of employment and within the scope of authority while engaged in an activity which constituted the exercise or discharge of a governmental function. Ross, 625. Those individuals employed by defendant school board must be deemed to have been cloaked with the apparent authority to act as they did and they were acting within the scope of their employment. In addition, defendant school board’s employees and agents were engaged in an activity which is a governmental function. Therefore, defendant school board is not vicariously liable for any tort which may have been committed by it or its employees or agents against Curtis Jones.
Next, plaintiff cross-appeals from an order granting accelerated judgment to defendants North Idaho Junior College and its President, Barry G. Schuler, on the grounds that the Michigan courts had no jurisdiction over them. We affirm. At the same time, defendant Roily Williams’ motion for accelerated judgment on the same grounds was denied. Defendant Williams did not appeal this order but, rather, a later one denying summary disposition based on Michigan choice-of-law rules and governmental immunity. However, in his supplemental brief, defendant Williams "contends that he is improperly before a Michigan state court . . . .” Thus, we find the issue of jurisdiction as to Williams properly preserved and we may consider it lest manifest injustice result. Butler v DAIIE, 121 Mich App 727, 742; 329 NW2d 781 (1982). We reverse the finding of the trial court that Michigan courts have juris diction over defendant Williams. When reviewing a motion for accelerated judgment, this Court must accept all well-pled facts as true. Hansen v Upper Peninsula Power Co, 144 Mich App 138, 140; 373 NW2d 270 (1985). Questions of jurisdiction are reviewed by this Court directly. Kircos v Lola Cars Ltd, 97 Mich App 379, 384; 296 NW2d 32 (1980). The first part of our review concerns whether nijc is subject to Michigan general personal jurisdiction over corporations, MCL 600.711; MSA 27A.711, which provides as follows:
The existence of any of the following relationships between a corporation and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise general personal jurisdiction over the corporation and to enable such courts to render personal judgments against the corporation.
(1) Incorporation under the laws of this state.
(2) Consent, to the extent authorized by the consent and subject to the limitations provided in section 745.
(3) The carrying on of a continuous and systematic part of its general business within the state. [Emphasis added.]
It is undisputed that nijc is not incorporated under the laws of Michigan. It is further undisputed that nijc has not consented to jurisdiction; neither is it subject to § 745. Nor does defendant nijc fall within the third possibility, since the general business of the college is education and defendant nijc did not continuously and systematically educate students within this state.
If the statute were to be read in a very broad sense so as to encompass basketball and the re cruiting of basketball players within nijc’s "business,” plaintiff has failed to show a continuous and systematic carrying on of the business as contemplated by case law. See, Keeton v Hustler Magazine, Inc, 465 US 770; 104 S Ct 1473; 79 L Ed 2d 790 (1984) (sale of ten thousand to fifteen thousand magazine copies within eight months), Lincoln v Fairfield-Nobel Co, 76 Mich App 514; 257 NW2d 148 (1977) (numerous mail order sales of clothing to several shops in Michigan over a period of years, actively solicited by defendant’s salesmen). Compare Selman v Harvard Medical School, 494 F Supp 603 (SD NY, 1980) (mailing of medical school applications to and administration of mcat in New York, not sufficient systematic and regular business).
The second part of our review is whether defendant nijc, through itself or its agent, is subject to Michigan limited personal jurisdiction (long-arm jurisdiction) pursuant to MCL 600.715; MSA 27A.715, which provides:
The existence of any of the following relationships between a corporation or its agent and the state shall constitute a sufficient basis of the jurisdiction to enable the courts of record of this state to exercise limited personal jurisdiction over such corporation and to enable such courts to render personal judgments against such corporation arising out of the act or acts which create any of the following relationships:
(1) The transaction of any business within the state.
(2) The doing or causing any act to be done, or consequences to occur, in the state resulting in an action for tort.
(3) The ownership, use or possession of any real or tangible personal property situated within the state.
(4) Contracting to insure any person, property, or risk located within the state at the time of contracting.
(5) Entering into a contract for services to be performed or for materials to be furnished in the state by the defendant.
Relevant to this appeal are subsections (1), (2) and (5). The exercise of limited personal jurisdiction is restrained by the due process clause of the Fourteenth Amendment. International Shoe Co v Washington, 326 US 310, 316; 66 S Ct 154; 90 L Ed 95 (1945), was the watershed case setting forth the due process parameters for exercising long-arm jurisdiction. There the United States Supreme Court first set forth the test requiring "minimum contacts” with the forum state to make it reasonable and just according to our traditional conception of fair play and substantial justice before exercising long-arm jurisdiction. Id. at 316. The United States Supreme Court qualified this standard, however, in Hanson v Denckla, 357 US 235; 78 S Ct 1228; 2 L Ed 2d 1283 (1958), stating that the determination of the question of personal jurisdiction over a nonresident defendant will vary with the quality and nature of the defendant’s activity, stressing that "it is essential in each case that there be some act by which the defendant purposely avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Id. at 253 (emphasis added).
Our Supreme Court emphasized with approval the above-stated principle in Khalaf v Bankers & Shippers Ins Co, 404 Mich 134; 273 NW2d 811 (1978). While the Court discussed the parameters of jurisdiction as including a single act having "substantial connection” with the state, as well as causes of action arising from the defendant’s activ ities in the forum where the nonresident has an adequate relationship with the state, our Supreme Court also stressed as follows:
It is "essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities with the forum State, thus invoking the benefits and protections of its laws” .... The defendant’s activities will ordinarily be such that he will have "reason to expect to be haled before” the forum court. [Id. at 148.]
The Court then clearly elaborated three primary factors based upon Supreme Court guidelines as follows: "the quantity of the contacts, the nature and quality of the contacts, and the source and connection of the cause of action with those contacts.” Id. at 149. (Emphasis in original.) What the defendant must purposefully avail himself of are the benefits and protections of the laws of the forum state. Khalaf, supra, p 148. "Purposeful availment” as it relates to the jurisdictional requirements has been construed by numerous Michigan courts.
A "purposeful availment” is something akin either to a deliberate undertaking to do or cause an act or thing to be done in Michigan or conduct which can be properly regarded as a prime generating cause of the effects resulting in Michigan, something more than a passive availment of Michigan opportunities. The defendant will have reason to foresee being "haled before” a Michigan court. [Khalaf, supra, pp 153-154.]
We fail to see how one or two telephone calls, directed to Michigan solely for the purpose of inquiring as to the potential availability of basketball talent, and the following up of those calls with an application and scholarship form, both of which were solely within Curtis Jones’ prerogative to complete, constitutes more than a "passive availment” of Michigan opportunities such that there was reason for these defendants to foresee being hailed into a Michigan court to defend an action.
Moreover, in Clavenna v Holsey, 81 Mich App 472; 265 NW2d 378 (1978), lv den 404 Mich 804 (1978), this Court stated that the predecessor of MCL 600.715(1); MSA 27A.715(1) did not apply to tort claims. Because subsection (1) is inapplicable in this case, we look specifically to subsections (2) and (5). Id.
This Court adopted the analysis of three federal court decisions analyzing the reach of Michigan’s long-arm jurisdiction based on in-state "consequences” resulting from a tortious incident occurring outside of a state: Price v Shessel, 415 F Supp 306 (ED Mich, 1976); Storie v Beech Aircraft Corp, 417 F Supp 141 (ED Mich, 1976); Amburn v Harold Forster Industries, Ltd, 423 F Supp 1302 (ED Mich, 1976). The Clavenna panel construed this section of the Michigan statute on the basis of its interpretation of the scope of a state’s exercise of long-arm jurisdiction over a nonresident as limited by the due process clause of the Fourteenth Amendment, requiring a defendant to have certain minimum contacts with the forum state, and accordingly declined jurisdiction. 81 Mich App 475. The Clavenna Court specifically followed Storie v Beech Aircraft Corp, supra, quoting Storie as follows:
The Court concludes that when the Michigan statute speaks of causing consequences to occur within the state, it applies to situations in which an act or conduct of the defendant outside of Michigan leads to an event in Michigan which gives rise to a tort claim. In the context of personal injury cases, that event occurs when the injury results, and in this case that consequence occurred in Ohio at the time of the airplane crash. [81 Mich App 477, quoting Storie, supra, p 145. Emphasis added.]
Applying this analysis to the instant case, it is clear that Curtis Jones’ injuries arose in Idaho at the time he allegedly suffered his "breakdown.” Thus, there were no consequences in the state of Michigan resulting in an action for tort.
Our Supreme Court, in Witbeck v Bill Cody’s Ranch Inn, 428 Mich 659; 411 NW2d 439 (1987), reexamined Michigan’s long-arm statute and concluded that application of it to the cases therein would violate due process. The Witbeck case was similar to the instant case in that the "contacts” consisted only of interstate phone calls and a mailing. Although in Witbeck the plaintiff originated the telephone call to the out-of-state corporation, defendant’s phone call, in this case, which consisted only of a broad inquiry as to potential talent, cannot be said to be sufficient to demonstrate purposeful availment. Moreover, even if that threshold is satisfied, jurisdiction based on those contacts, weighed in light of other factors, must "comport with notions of fair play and substantial justice.” Witbeck, 669, citing Int’l Shoe Co, supra, p 316. Notions of fair play and substantial justice surely are not met if Idaho defendants nijc, Schuler and Williams are forced to defend a suit in Michigan for a tort which occurred in Idaho. In addition, the trial court’s granting of defendant nijc’s motion was with prejudice only as to Michigan, but without prejudice as to any other state. Plaintiff is free to proceed with her suit in Idaho or any other state where jurisdiction is proper.
We find no evidence of a contract between the parties such that the Idaho defendants fall within MCL 600.715(5); 27A.715(5).
Having found no jurisdiction by the Michigan courts over defendants nijc, Barry G. Schuler and Roily Williams, we decline to address any remaining substantive issues pertaining to those defendants.
Affirmed in part and reversed in part.
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] |
Kelly, P.J.
Plaintiff-appellant, Universal Underwriters Insurance Company, appeals by leave granted from an order granting summary judgment in favor of defendant-appellee, State Farm Mutual Automobile Insurance Company. We affirm.
On February 8, 1982, Travis Davidson was involved in an automobile accident which caused injury to Mr. and Mrs. Haselhun. Davidson was driving an automobile leased to him by the Jim Causley Pontiac dealership. Travis Davidson was insured by defendant, State Farm, under a policy covering his personal vehicle, which was not involved in the accident. Jim Causley Pontiac was insured by plaintiff, Universal Underwriters, under a policy which did not provide coverage for rental drivers such as Davidson. Jim Causley Pontiac’s lease agreement also provided that the lessee agreed
[t]o hold Lessor harmless and to assume full responsibility for any loss, damage or any claim that may occur, to any person, or persons, or any other property, of any kind, through the use by any person including the Lessee of the above vehicle while it is entrusted to Lessee’s use and/or care.
As a result of their injuries sustained in the accident, Mr. and Mrs. Haselhun made claims for compensation based upon the residual tort liability remaining under the no-fault act, MCL 500.3135; MSA 24.13135. Both insurance companies settled with the Haselhuns for $15,000, each paying $7,500 and agreeing to litigate the question of which insurer had primary liability.
Universal Underwriters then sued State Farm in district court seeking reimbursement of the $7,500 it paid, and State Farm counterclaimed for the $7,500 it paid. The district court granted summary judgment to State Farm in the amount of $7,500, holding that Universal was obligated to cover the damages arising out of the accident. The circuit court affirmed this decision, holding that the terms of Universal’s policy and the lease agreement which attempted to deny coverage to Davidson were invalid because they violated the no-fault insurance act, MCL 500.3101 et seq.; MSA 24.13101 et seq. This Court denied plaintiffs application for leave to appeal. Universal appealed to our Supreme Court, which remanded this case for us to consider as if on leave granted.
Universal argues that the district court erred in granting summary judgment to State Farm and that its insurance policy and the hold harmless agreement are valid and enforceable. We disagree.
At the time of Davidson’s accident, § 3101(1) of the no-fault insurance act provided:
The owner or registrant of a motor vehicle required to be registered in this state shall maintain security for payment of benefits under personal protection insurance, property protection insurance, and residual liability insurance. Security shall be in effect continuously during the period of registration of the motor vehicle. [MCL 500.3101(1); MSA 24.13101(1).]
Section 520(b)(2) of the Michigan Vehicle Code requires that an owner’s policy of automobile liability insurance
[sjhall insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of such motor vehicle or motor vehicles. . . . [MCL 257.520(b)(2); MSA 9.2220(b)(2). Emphasis added.]
The Supreme Court has concluded that the provisions of the no-fault insurance act showed that the Legislature intended that
1. A person using a motor vehicle that causes certain types of damages shall remain liable in tort (§ 3135);
2. An insurance policy in this state shall afford coverage for such liability (§ 3131); [and]
3. An owner or registrant of a motor vehicle shall purchase such a policy (§ 3101). [State Farm Mutual Automobile Ins Co v Ruuska, 412 Mich 321, 335; 314 NW2d 184 (1982). (Opinion by Williams, J.).]
We think it obvious that the Legislature intends that automobile policies conform to the dictates of the no-fault act and the Vehicle Code. See Tahash v Flint Dodge Co, 115 Mich App 471, 476; 321 NW2d 698 (1982), lv den 418 Mich 878 (1983); DAIIE v Higginbotham, 95 Mich App 213, 221; 290 NW2d 414 (1980), lv den 409 Mich 919 (1980). Where an automobile insurance policy contains an exclusionary clause that was not contemplated by the Legislature, that clause is invalid and unenforceable. Higginbotham, 221. The Legislature has authorized a narrow exception to the general rule of comprehensive automobile liability insurance allowing for exclusion of coverage when the vehicle is operated by a specifically named individual. MCL 500.3009(2); MSA 24.13009(2); DAIIE v Felder, 94 Mich App 40, 42; 287 NW2d 364 (1979). However, this exception does not apply to lease contracts, nor has Universal complied with the stringent requirements of this exception in order to exclude coverage.
Universal’s attempts to exclude insurance coverage for lessee drivers conflicts with the liability coverage required by the no-fault act and the Vehicle Code and are therefore invalid and unenforceable. The district court did not err in granting summary judgment to defendant State Farm.
Affirmed. | [
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Per Curiam.
Plaintiffs appeal as of right from a Grand Traverse Circuit Court judgment of no cause of action in favor of defendants. Defendants claim a cross-appeal from the same judgment. We affirm.
The Traverse City Canning Company (tccc), a Michigan corporation, operated a fruit processing and canning business for approximately fifty years. The company went bankrupt in 1982. Defendants are the officers, directors and shareholders of the bankrupt corporation. Plaintiffs are commercial cherry growers who had business dealings with the tccc over the years.
According to the testimony adduced at trial, a typical plaintiff, upon the harvest of his cherries, would deliver the fruit to the tccc for processing. The plaintiff did not receive immediate payment for his crops. Instead, the grower received a weigh ticket as a receipt. About thirty days after harvest, the typical plaintiff would receive a statement from the tccc showing the amount owing to the grower after taxes. The amount owing constituted the balance of the grower’s account. Commonly, partial payment was made by the tccc at that time. Subsequent payments by the tccc were generally made upon the request of the grower. Growers commonly left their money in their growers’ accounts, which were interest-bearing accounts. It was established at trial that these dealings were typical of industry-wide practices.
In 1979, the tccc suffered significant financial losses due to high interest rates and poor harvest yields. As a result, the tccc concluded that it would be unable to make full payments on the growers’ accounts if same was demanded by the growers. Consequently, in October, 1981, the tccc mailed to each grower that grower’s account statement and a promissory note.
Plaintiffs had not requested the promissory notes; plaintiffs did not negotiate with the tccc with regard to the terms of the notes. The issuance of the promissory notes was a unilateral act on the part of the tccc.
Thereafter, on February 2, 1982, the tccc petitioned for Chapter XI reorganization under federal bankruptcy laws. As a result of the bankruptcy proceedings, plaintiffs did not receive the amounts owed to them by the tccc. Plaintiffs, therefore, filed the instant action seeking to impose personal liability on defendants under the Michigan Uniform Securities Act (musa), MCL 451.501 et seq.; MSA 19.776(101) et seq.
On July 23, 1985, following a bench trial, the trial court issued a written decision finding that neither the promissory notes nor the growers’ accounts were "securities” under §401(1) of the musa, MCL 451.801(1); MSA 19.776(401X1), and that, therefore, the musa was inapplicable. Moreover, specifically as to the notes issued to Emily Nash Smith and Julius Bugai, the trial court found that those plaintiffs had made bona fide loans to the tccc; thus, those transactions came within the exception to the musa found in § 401(j)(6)(A). On appeal, plaintiffs challenge these findings as clearly erroneous.
We are first asked to determine whether the promissory notes issued by the tccc and the growers’ accounts maintained by the tccc were "securities” within the meaning of the statutory provision. In making this determination, we do not write on a clean slate. Well-settled principles enunciated by the appellate courts of this state establish that the notes and evidence of indebtedness received by plaintiffs were not procured for purposes of speculation and investment and, therefore, do not fall within the ordinary concept of a security.
Section 301 of the musa, MCL 451.701; MSA 19.776(301), makes it unlawful for any person to offer or sell any security in the state unless it is registered under the act or the security or transaction was exempted under § 402. The purpose of this statutory restriction on the offer or sale of securities is to protect the public against fraud and deception in the issuance, sale, exchange or disposition of securities. People v Dempster, 396 Mich 700, 704; 242 NW2d 381 (1976). As a matter of judicial policy, the act should be broadly construed to effectuate this purpose. Id.
A "security” is defined in § 401(1) as follows:
"Security” means any note; stock; treasury stock; bond; debenture; evidence of indebtedness; certificate of interest or participation in any profit-sharing agreement; collateral-trust certificate; preorganization certificate or subscription; transferable share; investment contract; voting-trust certificate; certificate of deposit for a security; certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease; or, in general, any interest or instrument commonly known as a "security”, or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing. "Security” includes any contractual or quasi contractual arrangement pursuant to which: (1) a person furnishes capital, other than services, to an issuer; (2) a portion of that capital is subjected to the risks of the issuer’s enterprise; (3) the furnishing of that capital is induced by the representations of an issuer, promoter, or their affiliates which give rise to a reasonable understanding that a valuable tangible benefft will accrue to the person furnishing the capital as a result of the operation of the enterprise; (4) the person furnishing the capital does not intend to be actively involved in the management of the enterprise in a meaningful way; and (5) a promoter or its affiliates anticipate, at the time the capital is furnished, that ffnancial gain may be realized as a result thereof.
We reject at the outset any suggestion that the present transaction, memorialized by the issue of "notes” and "evidence of indebtedness,” must be considered a security transaction simply because the statutory definition of security includes the words "any note . . . [or] evidence of indebtedness.” Rather, we adhere to the basic principles that have guided the appellate courts in this state in their decisions in this area.
In general, the courts that have interpreted Michigan’s security statutes have been careful to look beyond the form of the transaction to its substance, paying special attention to the economic realities of the situation. People v Breckenridge, 81 Mich App 6, 16-17; 263 NW2d 922 (1978), lv den 402 Mich 915 (1978); Dep’t of Commerce v DeBeers Diamond Investment, Ltd, 89 Mich App 406, 409-410; 280 NW2d 547 (1979), lv den 406 Mich 998 (1979). Whether a particular transaction must be considered a security transaction depends upon the statutory language, the real nature of the transaction, and the real intent and purpose of the parties, ascertained by looking beyond labels and devices. People v Blankenship, 305 Mich 79, 85-86; 8 NW2d 919 (1943); Breckenridge, supra; Prince v Heritage Oil Co, 109 Mich App 189, 197; 311 NW2d 741 (1981); Moffit v Sederlund, 145 Mich App 1, 15; 378 NW2d 491 (1985), lv den 425 Mich 860 (1986).
In Breckenridge, supra, this Court considered the applicability of the musa to a transaction involving promissory notes. The Court noted that the salient feature of a securities sale under the musa is the public solicitation of venture capital to be used in a business enterprise. The Court, quoting with approval from Bronstein v Bronstein, 407 F Supp 925, 930 (ED Pa, 1976), then opined:
"The question whether a note constitutes a covered security depends on whether the note was procured for purposes of speculátion or investment or for purposes of making a commercial loan. As a matter of policy, this distinction is a valid one. The federal securities laws are designed to protect investors, not persons engaged in ordinary consumer or commercial loan transactions .... Thus courts have restricted application of the Acts to those notes procured for investment and have excluded notes issued in the context of á commercial loan transaction. [Breckenridge, supra, pp 15-16.]
With these general principles in mind, we return to the language of § 401(1). We read the expressly enumerated factors set forth in §401(1) to constitute the factors to be considered in determining the investment character of a transaction. In the context of a "note” or "evidence of indebtedness” these factors would aid the court in distinguishing an investment or securities transaction from a loan transaction. From our review of the record, we find that the trial court properly used these factors to determine the investment character of the transaction.
We also conclude that the trial court’s finding that the notes and accounts did not constitute securities within the meaning of §401(1) was not clearly erroneous. Trial testimony established that plaintiffs’ accounts arose as a result of industry-wide practices regarding the dealings between growers and independent fruit processors. Each grower had the option to request payment of all or any part of his or her account balance from the tccc. Any portion of the balance which remained with the tccc bore interest at a fixed rate and, therefore, the return to plaintiffs was not dependent on the profit made by the tccc. The promissory notes issued to plaintiffs in October, 1981, were merely a consolidation of the plaintiffs’ account balances through 1980. The return promised on these notes was premised on a rate of interest and not on the profits of the tccc. Finally, the testimony of individual plaintiffs demonstrated that they understood the nature of the transaction with the tccc as a loan rather than as an investment.
We are next asked to determine whether the trial court clearly erred when it found that plaintiffs Julius Bugai and Emily Nash Smith had made "bona fide loans” to the tccc and, therefore, that the transactions were not security transactions governed by the musa.
The terms "offer” and "sale” are defined in §401(j). Section 401(j)(6)(A) specifically excludes "[a]ny bona fide loan” from the definition of these terms.
The record establishes here that the promissory notes issued to Smith and Bugai were given in exchange for cash. Bugai testified at trial that he intended to make a loan to the tccc. These facts coupled with the fact that the notes were interest bearing at a fixed rate and the return thereon did not depend on the profits of the tccc, indicate that the transactions were loans rather than investments. Accordingly, we conclude that the trial court did not clearly err in finding as a fact that Smith and Bugai had made bona fide loans to the TCCC.
On cross-appeal, we are asked to determine whether the trial court erred in denying an award of attorney fees to defendants pursuant to MCR 2.403.
A party is liable for the opposing party’s attorney fees under MCR 2.403(0) only if the party has rejected the evaluation and the verdict is less favorable to the rejecting party (by more than ten percent) than the mediation evaluation.
In the instant case, plaintiffs rejected the May 15, 1985, mediation evaluation. Defendants accepted same. We, however, find that the mediators issued no valuation which could be accepted or rejected by the parties. While the mediators did find that defendants were liable to plaintiffs, they left the issue of damages open and invited the parties to submit additional material on the issue. Both parties accepted this invitation. The mediators failed to place a value on plaintiffs’ damages prior to the trial. Accordingly, the May 15, 1985, mediation evaluation presented no settled decision. Thus, because plaintiffs might have accepted the mediation valuation if they had not expected further action as to the issue of damages, we conclude that it would be unfair to subject plaintiffs to the penalty provisions of MCR 2.403(0).
Defendants also ask us to determine whether the trial court clearly erred when it found that defendants Dorothy Jane Kellogg, Ray Ellsworth Kellogg and Gerald Thomas Stein had failed to meet the burden imposed upon them by MCL 451.810(b); MSA l9.776(410)(b). Because we have determined that the trial court correctly found that the instant transaction was not governed by the musa, we decline to make such a determination.
Defendants’ remaining issues were not addressed by the trial court. We, therefore, decline their review. People v Turner, 123 Mich App 600, 604; 332 NW2d 626 (1983).
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Maher, J.
Plaintiff, a prison inmate in the custody of defendant, Michigan Department of Corrections, appeals as of right from the March 11, 1987, opinion and order of the Ingham Circuit Court affirming a hearing officer’s finding that plaintiff was guilty of a major misconduct violation (to wit, "[threatening behavior” in assaulting a fellow inmate). The court held that there was competent, material and substantial evidence to support that finding. We affirm.
The underlying facts of this case, as described in the trial court’s opinion and order, are as follows:
The incident giving rise to disciplinary action being taken against Tauber occurred April 2, 1983, when Tauber admittedly swung wildly at another inmate named Wynn. Tauber explained his behavior by alleging another unknown inmate had entered Tauber’s cell and assaulted him. A second unknown inmate was a "lookout.” When the "lookout” alerted the person assaulting Tauber that the "cops” were coming, the unknown assaulter took off. Tauber explained he was defending himself, and came out of his cell, swinging wildly at Wynn. Wynn was observed by corrections officers as not trying to protect himself at all. Tauber could not identify a photograph of Wynn as the assaulter or the "lookout” at the hearing.
An administrative hearing was held on April 6, 1983, before a hearing officer to determine plaintiff’s guilt of the major misconduct charge. After considering the testimony of plaintiff and the written report prepared by the prison guard who arrived first at the scene, the hearing officer found, in pertinent part:
The actions of the prisoner by his swinging his fists at Wynn constitutes a promise of physical harm toward Wynn. It is found that Wynn did not attempt to retaliate in any way. It does not appear that Wynn was the person who attacked this prisoner in his cell since if he had already hit this prisoner, it is doubtful that there would be any reluctance to do so again outside the cell. Based on the direct observations of staff, the violation is sustained.
As a result of the conviction, plaintiff was apparently placed in administrative segregation, was reclassified as a high-risk prisoner, lost disciplinary and good time credits, and his parole was delayed.
Plaintiff thereafter appealed his conviction to the Ingham Circuit Court, arguing that there was insufficient evidence of guilt in that the evidence showed that he had acted in self-defense and that he did not have the requisite intent. He also claimed that the hearing officer "shed his robe of impartiality” when the officer left the hearing at a "crucial moment” to visit the deputies’ office. (Plaintiff speculated that the officer discussed the case with one or more deputies.) Finally, plaintiff argued that he was denied due process because he was prevented from locating witnesses on his behalf and was denied access to the prison law library or to an attorney.
By an opinion and order dated March 11, 1987, the Ingham Circuit Court affirmed the decision of the hearing officer, holding:
Stripped of various unproven allegations of bias, Tauber has done no more than present a fact-finding hearing in which an issue of credibility was resolved against his position. The officer/witnesses saw the threatening behavior against Wynn and that Wynn did not attempt to retaliate. The hearing officer concluded that Wynn was not involved in the attack and therefore Tauber’s defense had no merit. Tauber’s arguments regarding being held in administrative segregation do not change the factual nature of the dispute. The consequences of the misconduct hearing findings as related to Tauber’s prisoner classification are beyond the scope of this appeal.
The Court finds the hearing officer’s decision of April 6, 1983 supported by competent, material and substantial evidence on the whole record, and no violation of the other requirements of MCL 24.306; MSA 3.560(206) have been shown.
It is from that opinion and order that plaintiff filed this appeal as of right.
Plaintiff first claims that his right to due process was violated because (1) he was not given the opportunity to call witnesses on his behalf at the hearing, (2) the hearing officer failed to make specific findings as to plaintiff’s claim of self-defense, and (3) he was required to prove self-defense rather than the burden being on defendant to show that there was no self-defense. We find no merit to these claims.
Although a prisoner retains some due process rights, prison disciplinary proceedings are not clothed with the same constitutional protections as criminal prosecutions. A prisoner is not entitled to the same constitutional rights and safeguards that are attendant to proceedings which resulted in the prisoner’s initial loss of liberty. Wolff v McDonnell, 418 US 539; 94 S Ct 2963; 41 L Ed 2d 935 (1974); Dickerson v Marquette Prison Warden, 99 Mich App 630, 635; 298 NW2d 841 (1980). Specifically, prisoners are not constitutionally entitled to full rights of confrontation and cross-examination in connection with disciplinary proceedings. In the interests of safety and to lessen the risks of reprisal, the scope of confrontation and cross-examination afforded to inmates must be left to the sound discretion of the prison authorities. Wolff, supra; Casper v Marquette Prison Warden, 126 Mich App 271, 273; 337 NW2d 56 (1983). A prisoner may not personally question a witness, but may submit written questions to the hearing officer to be asked of the witness. MCL 791.252(e); MSA 28.2320(52)(e); Casper, supra, p 273.
In the instant case, plaintiff only submitted two questions to be asked of Sergeant Eidenier (who witnessed part of the incident). Apparently these were asked to plaintiff’s satisfaction. Although plaintiff indicated that other inmates were present, he stated that he did not know who any of them were and never submitted any proposed questions that might be asked. Moreover, there is nothing in the record even showing that plaintiff requested assistance in locating the witnesses. Instead, the report prepared by Sergeant Eidenier indicated that "Mr. Tauber either couldn’t or wouldn’t identify who assaulted him. Mr. Tauber is not willing to prosecute.” Absent some indication on the record that plaintiff requested the presence of certain witnesses or assistance in locating potential witnesses, we cannot say that defendant abused its sound discretion in conducting the disciplinary proceeding with only the oral testimony of plaintiff and the written statements of Sergeant Eidenier.
We also can find no fault with the hearing officer’s findings of fact. According to defendant’s "Hearing Handbook,” as cited by plaintiff in his appellate brief, a hearing officer may accept a claim of self-defense only if he finds that six conditions existed. If the officer rejects the claim, he must specify which conditions were not met. Here, the hearing officer noted that plaintiff’s actions threatened physical harm to Wynn, who did not retaliate, and that Wynn was not the one who initially assaulted plaintiff. Although those findings did not address the conditions expressly, we believe it is clear that the officer found that Wynn had not provoked plaintiff, that Wynn had not mutually agreed to the use of force, and that plaintiff had a reasonable alternative to the use of force. In such case, the hearing officer’s findings were more than sufficient.
As to plaintiff’s claim that the burden of proof was impermissibly shifted onto him to prove self-defense, we believe he is mistaken. A review of the record reveals that the hearing officer simply found that defendant, through the written statements of Sergeant Eidenier, had shown that plaintiff’s actions were not in self-defense. The officer did not find that plaintiff had failed to prove the existence of self-defense.
Defendant next argues that the hearing officer’s decision was not supported by competent, material and substantial evidence on the whole record. We disagree. Even accepting plaintiff’s version of the incident as true, there was sufficient evidence to support the hearing officer’s decision.
According to plaintiff, an unknown inmate entered his cell and assaulted him while other inmates, possibly including Wynn, acted as "lookouts.” When prison officials approached the area, the attacker fled and plaintiff stumbled out of the cell, swinging his fists wildly. By his own admissions, plaintiff established that the attack on him had ended and that Wynn never physically attacked or threatened him. In addition, Sergeant Eidenier stated that, when he arrived at the scene, he observed plaintiff punching out at Wynn, who was holding plaintiff back at arm’s length without retaliating. Hence, even if the hearing officer believed that plaintiff had been assaulted, there was substantial evidence (i.e., more than a scintilla but less than a preponderance, Campbell v Marquette Prison Warden, 119 Mich App 377, 385; 326 NW2d 516 [1982]) under the instant circumstances to infer that plaintiff intended to cause fear of harm in Wynn. See People v Gilliam, 27 Mich App 314, 317; 183 NW2d 364 (1970), lv den 384 Mich 790 (1970); People v Jackson, 25 Mich App 596, 598; 181 NW2d 794 (1970).
We must emphasize that our holding is based upon the admissions of plaintiff himself, and not just upon the evidence (or lack thereof) presented by defendant. Plaintiff, by admitting that the attack against him had ended and that Wynn was not his assailant, defeated his own claim of self-defense. Since plaintiff was not defending himself against an attack by Wynn, it was therefore unnecessary for defendant to present substantial evidence refuting the claim of self-defense.
Lastly, defendant claims that his "conviction” of threatening behavior must be set aside because that offense was contained only in a policy directive and was not promulgated as a rule in accordance with Martin v Dep’t of Corrections, 424 Mich 553; 384 NW2d 392 (1986). There is currently a split among panels of this Court regarding the prospective effect of Martin. In Guerrero v Dep’t of Corrections, 165 Mich App 192; 418 NW2d 685 (1987), it was held that Martin should not apply where the major misconduct hearing was conducted on or before March 28, 1986. But, in Collins v Dep’t of Corrections, 167 Mich App 263; 421 NW2d 657 (1988), it was held that Martin applies to those cases pending as of March 28, 1986. We believe that Guerrero expresses the better view. Therefore, plaintiff is precluded from challenging the policy directive as not properly promulgated under the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq.
However, assuming that promulgation was re quired, we do not believe reversal is required because the factual allegations of the charge are also expressly prohibited by a promulgated rule, 1979 AC, R 791.5501(2)(d) (i.e., assault or threat of violence constitutes a major misconduct). Thus, application of that rule would not raise issues that plaintiff did not have an opportunity to address below. Compare Collins, supra, pp 265-266 (application of administrative rules not allowed since they did not expressly prohibit conduct with which the inmate was charged under the policy directive). Plaintiff should not be heard to complain that he was not on notice that his conduct was proscribed. Affirmed.
M. Warshawsky, J., concurred. | [
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Per Curiam.
On December 18, 1986, defendant pled guilty to breaking and entering with intent to commit larceny, MCL 750.110; MSA 28.305. In exchange for the plea, the prosecutor dismissed the supplemental habitual offender information. On February 5, 1987, defendant failed to appear for sentencing. Thereafter, defendant was charged with a larceny in a building offense that allegedly occurred on February 18, 1987. On April 9, 1987, defendant pled guilty to larceny in a building, MCL 750.360; MSA 28.592. In exchange for the second plea, the prosecutor agreed not to file a supplemental habitual offender information. Defendant was sentenced to ten to fifteen years in prison on the breaking and entering offense and two to four years on the larceny offense with both sentences to run concurrently. Defendant appeals as of right. We affirm.
Defendant first argues that the Washtenaw Circuit Court’s local policy of reassigning all future criminal cases to the trial judge who presided at defendant’s original criminal case, the "judge for life” rule, violates the clear mandate of MCR 8.111, the concept of individualized sentencing, and creates a sentencing disparity between like defendants in different counties. Defendant notes that both his instant criminal cases were reassigned to Judge Edward D. Deake, under the judge for life rule, because Judge Deake originally presided over a criminal case involving defendant in 1973. Defendant maintains that both of his cases must be remanded for resentencing before a different trial judge. We disagree.
In the present case, defendant has not shown any bias or partiality on the part of the judge. Also, defendant has not shown that he was prejudiced by having the same trial judge presiding over his criminal cases. On the contrary, both of defendant’s sentences were within the sentencing guidelines and were not unreasonable in light of defendant’s prior convictions. Additionally, the trial judge imposed concurrent sentences in this case even though it was within his discretion to impose consecutive sentences.
Furthermore, the mere fact that the trial judge was acquainted with defendant’s prior history is not indicative of bias or prejudice by itself. Even a trial judge who had never seen defendant before would have been aware of defendant’s prior record on the basis of the presentence investigation report.
Thus, we find no bias or prejudice to defendant under the trial court’s administrative policy in this case. We further find that the Washtenaw Circuit Court’s policy, as adopted in its Administrative Order 85-2, is not in conflict with MCR 8.111. MCR 8.111(B) permits local courts to adopt their own systems for assignment of cases through administrative orders.
Defendant also argues that he is entitled to resentencing because he was denied his right of allocution until after his sentence was imposed. We disagree. The sentencing record reveals that the trial court asked defendant if he wished to exercise his right of allocution. However, before defendant was able to make a statement, the trial judge started to sentence defendant. At that time, defense counsel immediately interrupted the trial judge and advised him of the mistake before the sentence was imposed. Thereafter, defendant and defense counsel were given the full opportunity to allocute prior to the imposition of sentence. Accordingly, we find no error.
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Shepherd, J.
Following a jury retrial, defendant was convicted of eight counts of armed robbery, MCL 750.529; MSA 28.797, and one count of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). On each count, the jury found defendant guilty but mentally ill, MCL 768.36; MSA 28.1059. Defendant was sentenced to two years’ imprisonment for the felony-firearm conviction, to be followed by concurrent sentences of twenty to forty years’ imprisonment for the armed robbery convictions. Defendant appeals as of right from his convictions and sentences, raising three issues. We affirm.
On February 6, 1983, defendant entered a Kingdom Hall of Jehovah’s Witnesses in Detroit, pulled out a pistol, and ordered seven congregation members in the lobby to put their wallets, watches and other jewelry into his bag. After the members complied, defendant left the building and robbed an eighth congregation member in the parking lot.
In October, 1983, a jury found defendant guilty but mentally ill of eight counts of armed robbery and guilty as charged on the felony-firearm charge. This Court, in an unpublished opinion, decided November 6, 1985 (Docket No. 76059), reversed the convictions and remanded for a new trial based on improper jury instructions on defendant’s insanity defense. On retrial in 1986, the jury was permitted to consider four verdicts on the armed robbery counts: (1) guilty; (2) guilty but mentally ill; (3) not guilty by reason of insanity; and (4) not guilty. The jury returned a verdict of guilty but mentally ill.
On appeal, defendant contends that the trial court violated his due process rights and double jeopardy protections by allowing the jury to consider a verdict of guilty as charged of armed robbery. Although defendant did not raise these constitutional issues below, we will review the issues to avert any miscarriage of justice. People v Lumsden, 168 Mich App 286, 292-293; 423 NW2d 645 (1988).
The Double Jeopardy Clauses of the United States and Michigan Constitutions protect against both multiple prosecutions and multiple punishments for the "same offense.” People v Wakeford, 418 Mich 95, 103; 341 NW2d 68 (1983). A conviction on a lesser included offense implicitly acquits a defendant on the greater offense and, thus, if there should be a retrial, the greater offense cannot be included in the charge. People v Wilder, 411 Mich 328; 308 NW2d 112 (1981); People v Deneweth, 14 Mich App 604; 165 NW2d 910 (1968), lv den 381 Mich 810 (1969). On retrial on the charges that remain, the case stands procedurally as though there had been no prior trial, although the trial judge in the second trial is bound by any determinations made on appeal. People v Yacks, 49 Mich App 444, 446-447; 212 NW2d 249 (1973), lv den 400 Mich 842 (1977).
Here, defendant was tried both times for armed robbery, and the jury convicted defendant of armed robbery. The fact that the jury found defendant guilty but mentally ill at the first trial did not preclude the jury’s consideration of a guilty as charged verdict on retrial since armed robbery, and not the guilty but mentally ill verdict, was the offense defendant was charged with. The purpose of a guilty but mentally ill verdict is to ensure that a criminally responsible but mentally ill defendant receives treatment. People v Blue, 428 Mich 684, 693-694; 411 NW2d 451 (1987). It does not create a substantive offense and, contrary to defendant’s suggestion, is not a verdict of lesser culpability.
Accordingly, we hold that in a retrial of a case where a jury previously found the defendant guilty but mentally ill of the offense the jury is not precluded in the second trial from considering a verdict of guilty as charged. Whether or not the second jury can also consider the guilty but mentally ill verdict will depend on whether the defendant again chooses to present an insanity defense. See MCL 768.36(1); MSA 28.1059(1). If the defendant does choose to present an insanity defense, the verdict of guilty as charged can again be submitted to the jury for consideration without violating the constitutional guarantee against multiple prosecutions for the "same offense.”
We find no merit in defendant’s contention that his due process rights were violated because, it is claimed, the jury compromised the verdict and may have returned a verdict of not guilty by reason of insanity had the verdict of guilty as charged not been submitted to the jury. The possibility of jury compromise is present in every case. People v Ramsey, 422 Mich 500, 515-516; 375 NW2d 297 (1985). Unless defendant demonstrates other error which, in light of the possibility of a compromise, could have prejudiced defendant, we must reject defendant’s due process argument. Id., p 516. Defendant’s argument that the jury’s questions during deliberations and its intermediate verdict showed that the jury had difficulty in reaching a verdict does not demonstrate error or prejudice. Accordingly, we find no violation of defendant’s due process rights.
Defendant next contends that the trial court erred in denying his motion for a directed verdict that he was not guilty as charged. Defendant argues that the prosecutor failed to present sufficient evidence that he was not mentally ill and, thus, the only possible guilty verdict was guilty but mentally ill. We disagree.
Before considering this issue, a review is in order of the procedures resulting in the prosecutor’s having a duty to present sufficient evidence that a defendant is not mentally ill. The concept of sufficiency focuses on whether the evidence, taken as a whole, justifies submitting the case to the trier of fact or requires judgment as a matter of law. People v Acosta, 153 Mich App 504, 511; 396 NW2d 463 (1986), lv den 428 Mich 865 (1987). The prosecutor’s burden is to prove the essential elements of the offense. The evidence is sufficient if, viewed in a light most favorable to the prosecution, a rational trier of fact could find that the essential elements were proven beyond a reasonable doubt. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), cert den 449 US 885 (1980).
The essential elements of armed robbery do not include the absence of mental illness. The prosecutor may, however, have a burden to prove that a defendant is not mentally ill if a defendant properly raises and presents evidence of an insanity defense. People v Murphy, 416 Mich 453; 331 NW2d 152 (1982). This is so because legal insanity, by definition, must be the result of a mental illness. MCL 768.21a; MSA 28.1044(1); People v Marlin Smith, 119 Mich App 91, 96; 326 NW2d 434 (1982). Nevertheless, the lack of insanity which the prosecutor must prove is not regarded as an element of the offense but, rather, a burden-shifting affirmative defense. See In re Certified Question, 425 Mich 457, 467; 390 NW2d 620 (1986) (addressing this issue as it pertains to statutory crimes of rape and kidnapping). The nature and quantum of rebuttal evidence required to present the insanity issue to the jury varies from case to case, depending in part on the strength of the defendant’s case for insanity. Murphy, supra, p 464. The appropriate remedy for the prosecutor’s failure to present sufficient evidence that a defendant is not legally insane is a directed verdict of not guilty by reason of insanity. Id., p 467.
By comparison, the guilty but mentally ill verdict requires that a trier of fact find all the following beyond a reasonable doubt:
(a) That the defendant is guilty of an offense.
Ob) That the defendant was mentally ill at the time of the commission of that offense.
(c) That the defendant was not legally insane at the time of the commission of that offense. [MCL 768.36(1); MSA 28.1059(1).]
The first and third prongs of the above test are consistent with the burden of proof placed on the prosecutor in order to obtain a conviction on the charge. The second requirement, that a trier of fact find the defendant mentally ill beyond a reasonable doubt, is not a requirement for a conviction, but merely one that ensures that defendant receives treatment. Whether or not the Legislature intended the prosecutor’s failure to present sufficient evidence to rebut whatever proofs of mental illness the defendant may present on his insanity defense to be presumptive proof that defendant is mentally ill beyond a reasonable doubt has not been raised and need not be addressed since we find that the trial court correctly submitted the issue of mental illness to the jury.
Mental illness means
a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life. [MCL 330.1400a; MSA 14.800(400a).]
In support of his insanity defense, defendant presented the expert testimony of Dr. Keeling, who opined that defendant was mentally ill and incapable of thinking rationally and reasonably at the time of the offenses. In addition, several long-term acquaintances of defendant testified, one of whom recalled defendant’s looking wild and hearing voices on the date of the offenses.
In rebuttal, one.of the prosecutor’s expert witnesses, Dr. Jackson, also opined that defendant was mentally ill at the time of the offenses. However, he also indicated that the defendant did not suffer from his mental illness at all times and that defendant had other disorders, including a substance abuse disorder and an antisocial personality disorder which was prominent when defendant was not suffering from the mental illness. During one of his interviews with the defendant, the defendant told Dr. Jackson that he had been drinking and took drugs with a friend prior to the incident, then found himself walking down the street with a pistol in his coat pocket. The defendant could not remember the actual robbery, but was able to relate how he hid the victims’ wallets. The prosecutor’s other expert witness, Dr. Rome, opined that defendant showed only mild signs of mental illness at the time of the offense and that defendant was not then mentally ill within the statutory definition of that term.
In addition to this rebuttal testimony, several of the victims testified during the prosecutor’s case in chief on defendant’s behavior during the robbery. The testimony of lay witnesses may be competent evidence on a defendant’s mental illness, Murphy, supra, p 465, and a trier of fact is not bound to accept the opinion of an expert. People v Stoddard, 48 Mich App 440, 447; 210 NW2d 470 (1973), lv den 391 Mich 778 (1974). Viewed in a manner most favorably to the prosecution, the victims’ testimony indicated that the defendant appeared untidy and nervous during the robbery, but behaved in a very purposeful and planned manner when he approached the first seven robbery victims with a gun and told them to put their wallets, rings and watches into his plastic bag. When presented with this testimony, along with Dr. Rome’s testimony and the opinion testimony of the other experts, based on their evaluations of the facts made known to them in assessing defendant’s mental illness at the time of the offenses, we conclude that the jury could have found a reasonable doubt as to whether defendant was mentally ill when he committed the offenses. Accordingly, the trial court correctly submitted the mental illness issue to the jury.
Finally, defendant seeks resentencing, arguing that the trial judge failed to give sufficient reasons for imposing greater sentences for the armed robbery counts after the retrial than were imposed after the first trial. We disagree.
Defendant was tried and sentenced before a different judge at the retrial. Accordingly, there is no presumption of vindictiveness resulting from the imposition of a greater sentence. People v Mazzie, 429 Mich 29, 33; 413 NW2d 1 (1987), reh den 429 Mich 1213 (1987). Further, the trial judge gave sufficient reasons for giving the greater sentences, which exceeded the guidelines’ recommended sentencing range. The trial judge expressed particular concern about defendant’s convictions for four counts of assaulting a prison employee and defendant’s numerous misconduct violations while in prison since the first trial. Our collective judicial conscience is not shocked by the sentences imposed. Accordingly, defendant is not entitled to resentencing. People v Broden, 428 Mich 343, 349-350; 408 NW2d 789 (1987); People v Coles, 417 Mich 523; 339 NW2d 440 (1983).
Affirmed. | [
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] |
Per Curiam.
Appellant Lake States Mutual Insurance Company appeals as of right from an order of declaratory judgment in favor of appellee St. Paul Fire & Marine Insurance Company. This case involves questions of insurance coverage. We reverse.
The underlying facts are not in dispute. An automobile owned by Budget Rent-A-Car was rented by Dorothy Strong for use by her son, Peter Strong. The rental agreement, which was signed by Mrs. Strong, listed Peter as the only additional driver. Among numerous other exclusions, the rental agreement stated that, except for the named insured, no one under the age of twenty-one was allowed to use the rental vehicle. Budget was insured by St. Paul Fire & Marine Insurance Company. St. Paul’s insurance policy provides coverage for any person who uses a Budget automobile with Budget’s permission.
Peter Strong drove the rental car to a party, where he became intoxicated. Peter gave his consent to his girlfriend, twenty-year-old Michelle Humphrey, to drive him and the car home. While Michelle was driving the car, it was involved in an accident. Both Michelle and Peter were injured.
Peter sued, seeking recovery from Budget’s insurer, St. Paul, and from Michelle’s insurer, Lake States. League General Insurance Company, Mrs. Strong’s insurer, then brought an action for declaratory relief against Budget Rent-A-Car, St. Paul, Lake States and others. In the second action, St. Paul cross-claimed against Lake States, arguing that Michelle was excluded from coverage under St. Paul’s policy because she was an unauthorized operator under the rental agreement. The trial court found that St. Paul was not Michelle Humphrey’s insurer and that St. Paul had no duty to defend her against Peter Strong’s claims.
Although the parties raise several issues, we believe that the pivotal question is whether all drivers who are less than twenty-one years old may be excluded from a rental agency’s insurance coverage in this manner. We conclude that they may not.
As a general rule, any clause in an insurance policy is valid as long as it is clear, unambiguous and not in contravention of public policy. Raska v Farm Bureau Mutual Ins Co of Michigan, 412 Mich 355; 314 NW2d 440 (1982). The owner of a motor vehicle is not ordinarily liable for any injury occasioned by the negligent operation of his motor vehicle unless the vehicle is being driven with his express or implied consent or knowledge. MCL 257.401; MSA 9.2101. See also DAIIE v Swift, 11 Mich App 166, 169; 160 NW2d 738 (1968).
However, in this case we believe that St. Paul has attempted to circumvent the purpose of the no-fault act by indirectly excluding whole classes of unnamed drivers who could not be directly excluded from coverage.
Our Supreme Court has explained the legislative intent behind the no-fault statute in some detail. See State Farm Mutual Automobile Ins Co v Ruuska, 412 Mich 321, 335-337; 314 NW2d 184 (1982). When an accident occurs in this state, the scope of the liability coverage required in an insurance policy is determined by Michigan’s financial responsibility act, MCL 257.501 et seq.; MSA 9.2201 et seq. State Farm Mutual Automobile Ins Co v Ruuska, 90 Mich App 767, 772; 282 NW2d 472 (1979), aff'd 412 Mich 321; 314 NW2d 184 (1982).
The financial responsibility act indicates a broad requirement of liability insurance. Where an insurance policy contains an exclusionary clause that was not contemplated by the Legislature, that clause is invalid and unenforceable. DAIIE v Irvine, 92 Mich App 371, 373-374; 284 NW2d 535 (1979), lv den 407 Mich 963 (1980).
Liability coverage may be excluded when a vehicle is operated by a named person. MCL 257.520; MSA 9.2220. Ruuska, 412 Mich 337; Irvine, supra, p 375. However, an exclusionary provision that excludes coverage of any driver under twenty-five years of age is contrary to public policy and there fore invalid. Cadillac Mutual Ins Co v Bell, 50 Mich App 144; 212 NW2d 816 (1973).
Here, the policy language ostensibly covers anyone who drives a rental car with Budget’s consent. However, we do not doubt that St. Paul gave Budget a lower rate because of the extensive list of excluded drivers. Nor is there any doubt that St. Paul is the real party in interest in this matter, as evidenced by this suit, since St. Paul is the one who stands to benefit from enforcement of these exclusions.
Michigan courts take a dim view of exclusionary clauses which would operate to violate the public policy of the financial responsibility act. Tahash v Flint Dodge Co, 115 Mich App 471, 476; 321 NW2d 698 (1982), lv den 418 Mich 878 (1983). Here the exclusion is implicit in the coverage offered by St. Paul. Equity will not permit that to be done by indirection which, because of public policy, cannot be done directly. Daley v City of Melvindale, 271 Mich 431, 436; 260 NW 898 (1935); Corkins v Ritter, 326 Mich 563, 568; 40 NW2d 726 (1950).
The law in Michigan clearly forbids the implicit exclusion from an insurance policy of an entire class of unnamed drivers. Bell, supra, p 146. Moreover, there are policy considerations in favor of insuring good Samaritan drivers who come to the aid of those disabled by intoxication or sickness. For these reasons, we are unable to countenance St. Paul’s attempt to exclude Michelle Humphrey from coverage under Budget’s policy. We conclude that St. Paul was, in fact, Ms. Humphrey’s insurer and reverse the decision of the lower court.
Reversed. | [
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Per Curiam.
On July 9, 1985, following his conviction of second-degree criminal sexual conduct, MCL 750.520c; MSA 28.788(3), defendant was sentenced to a five-year term of probation by Wayne Circuit Judge William Leo Cahalan. On March 25, 1987, defendant appeared before Detroit Recorder’s Court Judge Beverly Anne Jasper charged with violating probation by failing to comply with several conditions of probation which did not involve the commission of a crime. Following a probation violation hearing, defendant’s probation was revoked and he was sentenced tó a term of from five to sixteen years imprisonment. Defendant now appeals by leave granted, and we reverse.
Before the violation hearing, defendant moved to have the case transferred to Judge Cahalan, the original sentencing judge. Judge Jasper denied the motion, stating, "We checked and we are going to be unable to give you a date for Judge Cahalan to hear the matter. This case has been drawn to this Court’s docket. Judge Cahalan will not have any further input in this matter.”
After oral arguments, the court indicated that it needed to hear from the defendant. After defen dant was questioned by defense counsel, the court interrogated him concerning his place of employment, amount of wages earned, amount paid toward restitution, number of hours contributed to community service, and number of sessions defendant had attended in a group therapy program for sex offenders. The defendant was found guilty of violating his probation. Before sentencing, defendant unsuccessfully moved to vacate the judgment of violation of probation and to disqualify Judge Jasper from the proceeding.
This Court has held that a judge who sentences a defendant to probation retains jurisdiction over the case in all subsequent proceedings, including revocation of probation. “The underlying policy is simply to insure that revocation will be considered by the judge who is most acquainted with the matter.” People v Clemons, 116 Mich App 601, 604; 323 NW2d 300 (1981).
MCR 2.613(B) provides that “[a] judgment or order may be set aside or vacated, and a proceeding under a judgment or order may be stayed, only by the judge who entered the judgment or order, unless that judge is absent or unable to act.” In the present case there was no showing that Judge Cahalan was absent or unable to act as required by MCR 2.613(B). Defendant’s objection to proceeding before Judge Jasper was timely. Defendant’s conviction of probation violation must be reversed and the matter remanded for further proceedings before Judge Cahalan.
Defendant also claims that the trial court erred in requiring him to answer various questions after he had elected not to testify. MCL 771.4; MSA 28.1134 provides that hearings on “revocation shall be summary and informal and not subject to the rules of evidence or of pleadings applicable in criminal trials.” However, it is axiomatic that a probation revocation hearing is an integral part of the criminal prosecution/sentence process. "In case such probation order is terminated or revoked the court may proceed to sentence such probationer in the same manner and to the same penalty as it might have done if such probation order had never been made.” MCL 771.4; MSA 28.1134.
No person shall be compelled in any criminal case to be a witness against himself. This fundamental privilege against compulsory self-incrimination accompanies a criminal defendant throughout the entire course of every criminal prosecution, including both sentencing and any subsequent probation revocation proceeding.
We perforce conclude that it was error for the trial court to call upon defendant where defendant had not testified or otherwise first waived the privilege. See People v Staley, 127 Mich App 38, 41; 338 NW2d 414 (1983), citing People v Bobo, 390 Mich 355, 359; 212 NW2d 190 (1973); People v Nesbitt, 86 Mich App 128, 134-135; 272 NW2d 210 (1978).
Reversed and remanded.
US Const, Am V; Const 1963, art 1, § 17. | [
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Hood, J.
Respondents, Comerica Bank and Miles Jaffe, appeal as of right from an order of visiting Oakland County Probate Judge George E. Benko which removed respondents as trustees of the Leslie H. Green and Edith C. Green Charitable Trust, removed Comerica as personal representative of the estate of Edith C. Green, deceased, and surcharged respondents in the amount of $1,900,000. The petitioners are the Michigan Attorney General, St. Peter’s Home for Boys, Bishop of the Episcopal Church — Diocese of Michigan, Dean of the Cathedral Church of St. Paul, and the Cathedral Church of St. Paul. This case is based on the petitioners’ objections to respondents’ sale of real property owned by the estate and charitable trust to Maurice Cohen, a client of respondent Jaffe.
Leslie and Edith Green owned and maintained a residence on 315 acres in Bloomfield Township, Oakland County, known as Turtle Lake Farms.
In 1969, Leslie and Edith Green created a charitable trust funded in part by a grant of an interest in Turtle Lake Farms. As finally amended, the beneficiaries of this trust are St. Peter’s Home for Boys, the Cathedral Church of St. Paul and the Cathedral of the Episcopal Church, Diocese of Michigan. The named trustees were the Greens, Comerica and Miles Jaffe.
Mr. Green died in 1973. His will gave Mrs. Green a life estate in the portion of Turtle Lake Farms including their residence and created a marital trust for the benefit of his wife during her lifetime. The charitable trust was made the residuary beneficiary of the marital trust and would receive the marital trust’s interest in Turtle Lake Farms upon Mrs. Green’s death. Comerica was named sole trustee of the marital trust.
Mrs. Green died in March, 1983. Her will made specific bequests totaling $320,000 and directed the establishment of a million dollar trust fund for her granddaughter. The residue of her estate was left to the charitable trust. Mrs. Green’s estate consisted of cash and securities valued at $1,340,000, plus her interest in Turtle Lake Farms. Comerica was designated personal representative of the estate.
Upon Mrs. Green’s death, Bishop McGehee and Dean Herlong of the Episcopal Church became co-trustees of the charitable trust as provided for under the trust. Under the trust, only Comerica and Jaffe were empowered to make decisions regarding the disposition of the real property.
According to respondents, soon after Mrs. Green’s death they determined that the liquid assets of the estate were insufficient to satisfy the cash bequests, the funding of the $1,000,000 trust fund for the granddaughter, the estate taxes and the administrative expenses. After reviewing the options, Comerica and Jaffe concluded that the interests of the estate and its beneficiaries would best be served by the sale of the Turtle Lake property.
At Mrs. Green’s death, three entities owned undivided interests in Turtle Lake: the Edith Green estate, the marital trust, and the charitable trust. For the sale, Comerica acted in three capacities: as executor of the estate, as sole trustee of the marital trust, and as one of the trustees of the charitable trust. Jaffe also acted in several capacities. He was a trustee of the charitable trust. Also, Jaffe and his firm, Honigman, Miller, Schwartz & Cohn, were attorneys for the estate, for Comerica as executor, for Comerica as trustee of the marital trust, and for Comerica as trustee of the charitable trust. The record also contains testimony of Dean Herlong to the effect that Jaffe, at least on one occasion, provided legal advice to him in his role as trustee. Jaffe had been a personal friend of the Greens, as well as their attorney. He drafted their wills and the trust instruments.
During the time between Leslie Green’s death and the death of his wife, Comerica’s trust department received inquiries from individuals interested in purchasing Turtle Lake Farms. Since the intent was for Mrs. Green to live out her life on the property, Comerica informed inquiring developers that the property was not on the market and that they would be notified when it became available. The parties’ briefs describe in detail the events following Mrs. Green’s death and leading up to the sale of the Homestead, the real property concerned in this action. The Homestead is the western portion of the Turtle Lake property, consisting of 211 acres and including the Green’s mansion and other buildings, Turtle Lake, and lakefront property on Upper Long Lake.
On September 15, 1983, Comerica accepted an offer from Maurice Cohen for the Homestead. The sale was closed on November 1, 1983, by execution of a land contract for $3,250,000, with $1,500,000 down payment and the balance over two years at twelve percent interest. Maurice Cohen is a successful real estate developer and was represented by the Honigman firm.
This case concerns the objections by the charitable trust beneficiaries to Jaffe’s and his law firm’s conflicts of interest in representing both buyer and seller, to Comerica’s management of the sale of the property, and to the adequacy of the price received for the Homestead.
At this point, it may be helpful to identify the remaining individuals involved.
Testifying for Comerica were Gari Kersten and Cleveland Thurber. Kersten was vice president of Comerica’s trust real estate department which supervised the management of trust real estate and the Comerica representative who apparently worked most closely with Jaffe on the sale of property. Thurber was in charge of Comerica’s trust department, which generally oversaw the trust, and one of the trust officers who participated in decisions to sell the property to and accept the Cohen offer. Another Comerica employee, the sales manager, Mr. Keating, apparently supplied information to Kersten on the value of the property. David Wind was another trust officer involved in various decisions. Neither of these two men testified.
Leo Majzels, who had done an appraisal of the property in 1973, was retained by Comerica following Mrs. Green’s death as part of the efforts to prepare a marketing plan and as a consultant to assist in evaluating the value of the property. Calvin Hall was retained to submit a development plan on the possible uses of the land. Donald Tilton was retained to study possible environmental problems caused by the wetlands on the property.
Also testifying was Paul C. Robertson, a local land developer and builder, who had expressed interest in developing the property prior to Mrs. Green’s death and who contacted Comerica regarding the property again in May, 1983.
The Attorney General is a petitioner as a necessary party in interest to estate proceedings involving charitable trusts. MCL 14.254(c); MSA 26.1200(4)(c).
While specific facts will be raised where relevant, an overview of the factual basis for this case may also be helpful at this point.
Maurice Cohen visited the Homestead in April, 1983, and expressed an interest in purchasing the Green residence and a few surrounding acres. Kersten told Cohen that the sale of such a small parcel was not desirable because it would reduce the marketability of the balance of the property. Jaife put Cohen in touch with Calvin Hall and showed Cohen Hall’s development plan to encourage Cohen’s interest in a larger parcel. Throughout the summer, Jaife continued to meet with Cohen to encourage him to make a suitable offer for the entire parcel.
According to Jaife, when he realized in August that Cohen was interested in making "a hard offer” on the entire Homestead, he informed Thurber that there was a potential conflict of interest because his law firm represented Cohen. In a letter of August 12 to Thurber, Jaffe requested the consent of Comerica, Bishop McGehee and Dean Her-long, as trustees, to the Honigman firm’s dual representation and indicated that, in any event, Jaffe would not act as co-trustee with respect to any offer by Cohen. It does not appear that Jaffe sent copies of the letter directly to Bishop McGehee or Dean Herlong.
On August 18, at a meeting of Comerica representatives and Honigman attorneys, Majzels expressed his opinion that the Homestead should sell for between $3 and $3.5 million.
On August 22, all of the trustees of the charitable trust met to discuss the possible sale of the land and the question of dual representation. Dean Herlong testified that Thurber informed them of the estate’s cash needs and Jaffe discussed the various problems with development of the property. Jaffe, Thurber and Kersten also informed Bishop McGehee and Dean Herlong that they expected Cohen to make an offer for the western portion of the property. Jaffe explained the conflict of interest.
Former Chief Justice G. Mennen Williams was also present at this meeting in his capacity as Senior Warden of the Vestry of the Cathedral Church of St. Paul but he did not testify at trial. Dean Herlong testified that the Chief Justice was present at the Dean’s request. The Senior Warden is the representative of the cathedral to whom Dean Herlong is ultimately responsible, and Dean Herlong felt it was in the best interest of the cathedral for the Chief Justice to be present. The Chief Justice, pursuant to MCL 600.207; MSA 27A.207, was precluded from practicing law, and we find no indication in the record that he was present as or in any way acted as a legal advisor. The record also does not indicate that the fact of the Chief Justice’s position in the judicial system had any bearing on the proceedings.
On August 23, Cohen made an offer for the Homestead of $3 million. Neither the price nor the conditions were acceptable to Jaffe or Comerica, and Kersten directed Jaffe to go back to Cohen and see what could be done to better the offer.
On August 26, a one-page circular describing generally the land and its availability was sent to people who had expressed an interest in the property and to local real estate people. Kersten authorized the mailing against the advice of Jaffe.
On August 31, 1983, Bishop McGehee and Dean Herlong sent a letter to Jaffe consenting to the dual representation "subject to the satisfactory demonstration by the Comerica Bank after reasonable investigation that the offer is indeed suitable, appropriate, and in keeping with the present market situation.”
On September 6, Kersten met with Robertson. Kersten apparently attempted to . secure an offer on the entire parcel from Robertson, indicating that the asking price was $10 million, with $4 million down. Kersten met with Cohen on September 12, apparently in an attempt to secure a better offer and to obtain an extension of Cohen’s offer, both of which Cohen refused. A revised offer at $3.25 million was prepared by the Honigman attorneys and accepted on September 15.
On September 19, Dean Herlong was informed of the sale. On September 26, Wind, Kersten, and Jaffe met with Dean Herlong, Bishop McGehee and Chief Justice Williams. Dean Herlong testified that he expressed at this meeting his concerns regarding the sale and Comerica’s marketing of the property. The Cohen deal was closed on November 1, 1983. Bishop McGehee and Dean Her-long signed the land contract as trustees of the charitable trust. Dean Herlong testified that Jaffe told them that the sale was a "fait accompli” and that their signatures were a legal formality.
On December 29, Jaffe wrote to Bishop McGehee and Dean Herlong advising them that another Honigman client was interested in another part of the property and requesting their consent to the multiple representation. In a letter dated March 5, 1984, Dean Herlong consented to the multiple representation, but asked for a written appraisal of the property before sale. According to Jaffe, Dean Herlong indicated for the first time that he was dissatisfied with the way in which the Cohen sale had been handled. Dean Herlong testified that he had orally conveyed his dissatisfaction earlier.
After the present controversy arose, appraisals of the market value of the Homestead as of September 15, 1983, were prepared by Majzels, who was selected by Jaffe, and by Proctor, who was selected by Dean Herlong from a list of appraisers submitted by Jaffe. Over Dean Herlong’s objection, the instructions to the appraisers included information on the Cohen sale. The appraisals were completed in 1985, with Majzels indicating a value of $3.35 million and Proctor arriving at a value of $5.15 million for the Homestead.
On September 9, 1984, Comerica filed its first account on the estate of Edith Green. On October 29, 1985, St. Peter’s Home for Boys filed a petition and objection to the account. On December 2, 1985, the Attorney General filed a similar petition. On November 12, 1986, Bishop McGehee and Dean Herlong filed petitions in the probate court pursuant to MCL 700.805; MSA 27.5805, to surcharge Comerica and Jaffe as trustees of the charitable trust, and the Attorney General filed a petition to surcharge and remove Comerica as executor of the Edith Green estate, as trustee of the marital trust, and as trustee of the charitable trust.
On November 13, 1986, Judge Benko began hearings on all of these petitions, excluding issues related to the marital trust because Comerica had been discharged as trustee when the Leslie Green estate had been closed in 1984. Following several days of testimony, the probate court issued its thirty-four page opinion, finding that Jaffe and Comerica violated their obligations as trustees to the settlors and beneficiaries of the charitable trust and that Comerica violated its obligation as personal representative to the Edith Green estate. As to Comerica, the court found that it had negligently handled the sale of the property, as evidenced by its inadequate efforts to determine the property’s value and its failure to adequately market the property. Furthermore, the court found that Comerica was negligent in its response to Jaffe’s acknowledged conflict of interest and in allowing Jaffe and his firm to control the negotiations. As to Jaffe, the court found that his conflict of interest, although acknowledged, tainted the sale because there was not full disclosure of the extent of his prior representation of Cohen on personal tax matters, because Jaffe actively participated in the negotiations and because his course of conduct insured that his client, Cohen, obtained the property at an inadequate price. The court found that both parties had failed in their duty to keep the beneficiaries reasonably informed and to fulfill a self-imposed duty to keep their co-trustees fully advised of developments.
We begin our review with two procedural issues raised by Comerica and Jaffe.
The probate court has exclusive jurisdiction over proceedings concerning the internal affairs of all trusts, including charitable trusts, in such matters as the removal of a trustee or the review of accounts. MCL 700.805; MSA 27.5805; MCL 700.21; MSA 27.5021; MSA 700.11(2); MSA 27.5011(2); Kowalesky v Kowalesky, 148 Mich App 151, 159-160; 384 NW2d 112 (1986); In re Americana Foundation, 145 Mich App 735; 378 NW2d 586 (1985).
This Court does not review a probate court’s findings of fact de novo, MCL 600.866(1); MSA 27A.866G); MCR 5.802(B)(1), but will review the record to determine whether the findings must be reversed because they are clearly erroneous. In re Sykes Estate, 131 Mich App 49, 53; 345 NW2d 642 (1983). Findings are clearly erroneous when this Court is left with the definite and firm conviction that a mistake has been made. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976). Comerica argues that the standard should be the one employed in some federal cases of "intense scrutiny,” because the probate court adopted language from petitioners’ posttrial brief for use in its opinion. See, e.g., Andre v Bendix, 774 F2d 786 (CA 7, 1985). We decline to adopt this standard. The findings are those of the trial court and will be reversed only if clearly erroneous and not simply because of the particular language used. See Anderson v Bessemer City, 470 US 564, 572; 105 S Ct 1504; 84 L Ed 2d 518 (1985).
Next, Jaffe cites the language of one subsection of one of the court’s nineteen findings as evidence that the probate court failed to recognize the petitioners’ burden of proof. Finding 17(a) reads:
Comerica and Jaffe had the burden of proving the fairness and adequacy of the price paid by Jaffe’s client.
This case began as a challenge to the accounts of the Edith Green estate. As noted by Jaffe, the general rule regarding the burden of proof is that the administrator has the burden of establishing the correctness of his account and the propriety of his charges. In re LaFreniere’s Estate, 316 Mich 285, 292; 25 NW2d 252 (1946). This burden has also been described as the trustee having "to show the absence of an irregularity or of any personal benefit” to the trustee. Roberts v Michigan Trust Co, 273 Mich 91, 120; 262 NW 744 (1935).
Respondents’ burden of going forward was recognized by counsel for Jaffe and his law firm, as indicated in the transcript of the pretrial conference and by the role they assumed at trial. Neither respondent has provided us with an example where the court placed a burden on either respondent that was inconsistent with the proceedings or which resulted in some injustice to respondents or prejudice to their ability to pursue their case. We find no error.
We now turn to the substantive issue of whether Jaffe and Comerica violated their duties to the trust. As a preliminary matter, we note that, while Jaffe maintains that he declined to act as a trustee with respect to any offer by Cohen, he did not resign his position as trustee. Therefore, his duties to the beneficiaries and the trust as to matters related to the valuation and marketing of the property did not end when he chose to decline to act on the offer.
In general, the duties imposed on the trustee are determined by consideration of the trust, the relevant probate statutes and the relevant case law. See, e.g., In re Butterfield Estate, 418 Mich 241; 341 NW2d 453 (1983). A claimed breach of duty and any resulting liability is tested by the facts of each case. Newton v Old-Merchants National Bank & Trust Co, 299 Mich 499, 515; 300 NW 859 (1941).
The standard of care expected of a trustee is that of "a prudent man dealing with the property of another, and if the trustee has special skills or is named trustee on the basis of representations of special skills or expertise, he is under a duty to use those skills.” MCL 700.813; MSA 27.5813. To be prudent includes acting with care, diligence, integrity, fidelity and sound business judgment. In re Buhl’s Estate, 211 Mich 124, 127, 132; 178 NW 651 (1920). In addition, the courts have imposed on the fiduciary duties of honesty, loyalty, restraint from self-interest and good faith. Hertz v Miklowski, 326 Mich 697, 700; 40 NW2d 452 (1950); Kelsey v Detroit Trust Co, 265 Mich 358, 362; 251 NW 555 (1933).
Paragraph vn of the trust gives the trustees broad powers "to do everything they in good faith deem advisable even though it would not be authorized or appropriate for fiduciaries (but for this power) under any statutory or other rule of law . . . .” Paragraph v empowers Comerica and Jaffe "in their sole discretion” to determine the timing of any sale of the real property so as to realize its "full value.”
Giving trustees discretionary or broad powers does not mean that there are no limits to those powers. Trustees’ actions will be reviewed for abuse of that discretion. Moss v Axford, 246 Mich 288, 294; 224 NW 425 (1929); In re Sykes Estate, supra, 131 Mich App 54. The trustee is bound to exercise his discretion honestly and in good faith. Moss, supra, 246 Mich 294.
The duty imposed is something more than that expected in everyday business dealings. "A trustee is held to something stricter than the morals of the market place.” In re Butterfield Estate, supra, 418 Mich 256, quoting Meinhard v Salmon, 249 NY 458, 464; 164 NE 545 (1928), adopted in Michigan in the case of In re Culhane Estate, 269 Mich 68, 76; 256 NW 807 (1934).
As noted by the parties, the liability of the trustee may be limited by the terms of the trust instrument. Newton, supra, 299 Mich 508-510. Comerica’s and Jaffe’s liability for error, negligence, mistake of judgment, act or omission as trustees of the charitable trust was limited to actions done in bad faith. This provision is consistent with the common law principle that trustees may not be liable for mere mistakes or errors of judgment where they have acted in good faith and within the limits of the law and of the trust. MacKenzie v Union Guardian Trust Co, 262 Mich 563, 588; 247 NW 914 (1933); Gibney v Allen, 156 Mich 301; 120 NW 811 (1909).
The exculpatory clause does not preclude judicial review or application of the required standard of care. In Newton, a trust provision permitted self-dealing by the trustee and also limited liability to any loss not occasioned by the trustee’s gross negligence or bad faith. Newton, supra, 299 Mich 507. In reviewing whether the beneficiary could recover for alleged losses, the Court relied on the common law principles that transactions involving self-dealing should be closely scrutinized and looked to see whether the trustee’s actions indicated any fraud, bad faith or overreaching on the part of the trustee. Newton, supra, 299 Mich 512.
An exculpatory clause generally is not considered to reduce or enlarge the standard of care required of the trustee in administering the trust, but acts to relieve the trustee of personal liability under the stated circumstances. Bogert, Trusts & Trustees (2d ed rev), § 542 (1988 Supp, p 25). It will not generally be construed to mean that the trustee is not accountable to anyone for his actions. A trust implies an equitable duty to act for the benefit of the beneficiary and an all-inclusive exculpatory clause would connote either that there was no enforceable duty owed the beneficiary or that there was no remedy for a breach of duty even if the breach was found to be unconscionable. Id.
The “bad faith” standard used in the Green trust has not been defined in the trust context in Michigan. However, the principle has been applied in trust situations in evaluating a trustee’s diligence, honesty, and good faith. In re Baldwin’s Estate, 311 Mich 288, 310; 18 NW2d 827 (1945); In re Tolfree Estate, 347 Mich 272, 290; 79 NW2d 629 (1956). In the insurance context, bad faith has been defined as “arbitrary, reckless, indifferent, or intentional disregard of the interests of the person owed a duty.” Commercial Union Ins Co v Liberty Mutual Ins Co, 426 Mich 127, 136; 393 NW2d 161 (1986).
Bad faith is not a specific act in itself, but defines the character or quality of a party’s actions. Its presence, as with a determination that a trustee has violated his duty to the trust, depends on the facts of the individual case. See Commercial Union, supra, 426 Mich 137.
Comerica argues that the trial court erred in not defining “bad faith.” We agree with the court in Spiegel v Beacon Participations, Inc, 297 Mass 398, 416; 8 NE2d 895 (1937), quoting Penn Mutual Life Ins Co v Mechanics Savings Bank & Trust Co, 73 F 653, 654 (CA 6, 1896), that bad faith "is an ordinary expression, the meaning of which is not doubtful.” The record does not indicate that counsel felt the need to provide the court with guidance on a specific definition that should be applied. The probate court’s opinion is consistent with the concerns expressed above.
Specific duties of trustees include keeping the beneficiaries "reasonably informed of the trust and its administration.” MCL 700.814; MSA 27.5814. In the context of the sale of real property, there is an obligation to seek the highest price obtainable. Thiel v Cruikshank, 96 Mich App 7, 12; 292 NW2d 150 (1980). The entire circumstances of the case will be considered in reviewing a contested sale. That the price realized at the sale was at or above the appraised value does not necessarily indicate that the best price was obtained. Id.
The duty to obtain the best price has been expanded upon in other jurisdictions to specifically include consideration of those factors noted by the probate court: the determination of fair market value, the proper marketing of the property, and the adequacy of the price obtained. The parties have referred us to a number of cases from other courts, one of which, Allard v Pacific National Bank, 99 Wash 2d 394; 663 P2d 104 (1983), is strikingly similar to our situation. In Allard, the Supreme Court of Washington affirmed a finding that the trustee had breached its fiduciary duties in its management of the sale of real property located in downtown Seattle, the sole asset of the trust. The beneficiaries argued a breach of duty based on the trustee’s failure to inform them of the sale and failure to either obtain an independent appraisal or place the property on the open market prior to the sale.
The Washington court found that the trustee "must inform beneficiaries ... of all material facts in connection with a nonroutine transaction which significantly affects the trust estate and the interest of the beneficiaries prior to the transaction taking place.” Allard, supra, 99 Wash 2d 404-405. This duty is based on the generally recognized principle that the beneficiaries must know how the estate is being managed in order that they may hold the trustee to proper standards of care and honesty and obtain the benefits to which they are entitled. Id.; Bogert, supra, § 961, p 2. The trustee’s duty to keep the beneficiaries informed has been codified in Michigan in the Revised Probate Code, MCL 700.814; MSA 27.5814. In Allard, there was one offer made for the property by a leaseholder who had a right of first refusal. The court found that, at a minimum, the beneficiaries had a right to know of the offer prior to the sale to give them the opportunity to outbid the leaseholder.
We agree with the Allard court that this duty, especially in the instant case where the single most valuable asset was the real property, imposed on Jaffe and Comerica the responsibility of informing all the beneficiaries of the impending sale. It is not clear in what capacity, as co-trustees or as representatives of the beneficiaries, Dean Herlong and Bishop McGehee were first contacted. However, it is clear that Jaffe and Comerica had made a specific commitment to keep Dean Herlong and Bishop McGehee informed, and that commitment should also have been kept. The probate court did not err in finding that Jaffe and Comerica breached this duty.
We now turn to whether the trustees fulfilled their duties in the sale of the property. Allard’s second issue requiring an appraisal or testing the market has been considered in other jurisdictions as part of the trustee’s duty to establish the value of the property offered for sale. Knowledge of value is the basic assurance that any sale price is fair and just. Knight v Nottingham Farms, Inc, 207 Md 65, 76; 113 A2d 382 (1955).
Factors which have been considered in determining whether adequate efforts were taken to determine value include the existence of a "sound” appraisal and consultation with competent local real estate people to obtain their expert advice. Webb & Knapp, Inc v Hanover Bank, 214 Md 230, 244-245; 133 A2d 450 (1957). In general, the question is whether the trustee has done its homework. Hatcher v United States National Bank of Oregon, 56 Or App 643, 651-653; 643 P2d 359 (1982).
In the absence of a thorough appraisal, the trustee may establish value by "testing the market .” "Testing the market” is not limited to consideration of offers volunteered by actual potential buyers. Id. It includes whatever actions may be available to encourage fair, legitimate and seasonable competition. Rippey v Denver United States National Bank, 273 F Supp 718, 740 (D Colo, 1967).
In Allard, the leaseholder made an initial offer of $139,000. The trustees demanded at least $200,-000, and the leaseholder eventually met that price. The trustees’ price was apparently based on an internal appraisal by the trustee bank’s trust department. However, the court found that, by failing to obtain an independent outside appraisal or testing the market to determine what a willing buyer would pay, the trustees had breached their fiduciary duty.
In our case, respondents argue that they had two appraisals to guide then, Majzels’ and Kersten’s. But Jaffe, Kersten and Majzels testified that Majzels was not engaged as an appraiser, but as a consultant supplying his input on an appropriate asking price. Jaffe specifically testified that they did not want an appraisal "early on” for fear that it would establish a ceiling on the price that could deleteriously affect the manner of selling the property. That Kersten and Comerica’s real estate department had an opinion regarding the value is relevant but not determinative. No evidence was presented by Keating as to the basis for his input, nor is there any indication that Kersten’s opinion is equal to a sound and thorough independent appraisal. The last full appraisal on the property was done in 1973. The passage of time, as well as the duty of the trustees, indictated that obtaining a sound and thorough appraisal would have been prudent.
Nor do the facts indicate that the trustees, in the alternative, had "tested the market.” Jaife’s reference to not wanting the appraisal "early on” highlights the weakness in crediting the contacts with local developers in early 1983 as part of "testing the market.” Jaffe testified that these contacts were not for the purpose of soliciting offers, which might have helped establish value. There is no indication that these contacts were part of an organized effort to "test the market” in a manner which would reasonably take the place of a sound and thorough appraisal. The record does not indicate that the trial court clearly erred in finding that the trustees did not fulfill their duty of establishing the value of the property.
The probate court’s next concern was the inadequate marketing of the property. Marketing means taking action to bring the property’s "availability to the attention of a wide spectrum of potential purchasers.” Lockwood v OFB Corp, 305 A2d 636, 639 (Del Ch, 1973). There is no one set method of marketing, rather the cases indicate that all the circumstances surrounding the sale are considered to determine adequacy. We agree with the Chancery Court of Delaware, that what we are looking for is "a reasonably aggressive program which men of prudence and intelligence would have followed.” Id. Factors which have been considered include advertisement in appropriate publications, contact with local developers, listing with a local broker, use of "For Sale” signs, showing the property to prospective customers, consultation with local sources on whether the offer price was the best offer obtainable, canvassing for possible purchasers, wide circulation of brochures and taking advantage of events — such as free publicity — to give notice of the sale. Id., see also Thiel, supra, 96 Mich App 7; Knight, supra, 207 Md 77; Webb, supra, 214 Md 245. In short, we are looking to see if the trustees adopted and followed "a comprehensive and thorough plan to assure that the reasonable and intelligent steps necessary to secure the best possible market price were taken.” Lockwood, supra, 305 A2d 640.
As noted above, the record indicates that, whatever early contacts with local developers occurred, they were not for the purpose of marketing the property. The indications from Jaife and Kersten are that these early contacts, along with the information received from Hall and Tilton, were an attempt to formulate a plan for the orderly marketing of the property. According to Jaife and Kersten, it was not until August that the trustees decided on the standard to be applied in selling the property. The distribution of the circular was their only marketing effort.
Even assuming that sending out a circular could be sufficient, this method of marketing is suspect in these circumstances. While the trustees were actively considering an offer on less than all of the property and for an initial cash payment of $1.5 million, the property was being marketed to the rest of the world in its entirety. At least one potential buyer was told that he needed an initial cash outlay of $4 million. Furthermore, the entire extent of the marketing effort encompassed approximately twenty days — the time between the mailing and the acceptance of the Cohen offer.
The testimony of Dean Herlong is that he was informed on August 22 that interested parties would be given thirty days to respond. However, the circular did not indicate a time limit or that time was of the essence. The record indicates that potential purchasers such as Robertson, who had previously expressed an interest, were originally told it would be nine months to a year before offers would be accepted. Other purchasers could easily have accepted the circular as the first step in the long-awaited offering. The general impression we are left with is that the trustees were basically dormant, waiting for offers to be brought to them. Such lack of activity does not indicate that they fulfilled their duty to the trust. See, Knight, supra, 207 Md 77-78; Allard, supra, 99 Wash 2d 394.
The third area considered was the adequacy of the price obtained. While an accurate determination of value gives the trustees a good idea of where the bidding should begin, it does not mean that a higher price may not be available. See Thiel, supra, 99 Mich App 7. The entire range of activities and surrounding circumstances are examined to see if the trustees took steps to understand the value and qualities of the property, as well as the nature of the market, and then took appropriate steps to secure the maximum price available. See Lockwood, supra, 305 A2d 638; Cosden v Mercantile-Safe Deposit & Trust Co, 41 Md App 519, 531-536; 398 A2d 460 (1979); In re Mills Will, 26 A2d 241 (Del Ch, 1942). We note that where, as here, there is a claim of a trustee’s conflicting or divided loyalties, that courts have placed a "stringent burden” on the trustee to show that the sale was fairly made for an adequate price. See Cosden, supra, 41 Md App 531.
A review of the record indicates that the trustees took a number of actions similar to those mentioned in the cases above. Prior to the Cohen offer, there were phone calls to local developers, there was consultation with an appraiser regarding value, other experts — Hall and Tilton — were consulted as to the use and potential problems, and at least two prospective purchasers — Robertson and Johnson — were contacted. Following the offer, a flyer was widely circulated among those local entities apparently most likely to be interested. If this were a simple matter of checking off an appropriate number of boxes, it could be argued that the trustees fulfilled their duty. However, in viewing these actions as a whole, we cannot say that these actions amounted to any actual concerted effort to determine or obtain the highest price available. This is not to say that a written or established plan is required, but rather it is to say that individual actions which do not indicate a concerted effort towards understanding and achieving the maximum price are not enough.
In the absence of some contemporaneous evidence on the value of the property, the court was forced to consider the appraisals made in 1985 in determining what an adequate price might have been. Both Majzels and Proctor testified; both appraisals were available. Both respondents and petitioners were diligent in pointing out to the court the respective strengths and weaknesses of the appraisals.
We find that, as with any other means for the assessment of damages, an appraisal must establish with a reasonable degree of certainty what an adequate price would have been; however, the law does not require a higher degree of certainty than the nature of the case permits. See Body Rustproofing, Inc v Michigan Bell Telephone Co, 149 Mich App 385, 390; 385 NW2d 797 (1986). Given the facts of this case regarding the inadequacies of the trustees’ actions with regard to the sale, it is not logical to require proof of a known purchaser or the existence of another offer to establish a price. The inadequate marketing in this case virtually precludes such a finding.
The court’s finding that Proctor’s appraisal, which included consideration of the development potential of the property, was more compelling as an indicator of price than Majzels’ appraisal is not clearly erroneous. That the probate court found the development potential relevant to the worth of the property is not the same as Comerica’s argument that the court was requiring the fiduciaries to speculate in risky land ventures.
The remaining issue concerning the trustees involves the court’s finding that Jaffe was involved in a conflict of interest situation which tainted the sale and established his bad faith and self-dealing. We agree, as did the court in Cosden, supra, 41 Md App 519, that this is not a case of self-dealing because there was no evidence that Jaffe was actually a party or that he directly profited from the sale. We have been given no authority for the proposition that whatever indirect interest Jaffe may have had in his firm’s fees amounts to self-dealing. However, as in Cosden, there is evidence of a potential conflict of interest or conflicting loyalties which must be considered.
In the instant case, it would appear that the trial court’s reference to self-dealing was an attempt to find guidance both for the court and the fiduciary as to the expected course of conduct. We do not find the court’s use of the term self-dealing to be sufficient grounds to reverse its finding, but will review the record to see if a conflict was established.
As a trustee, Jaffe was bound to consider the interests of the trust as paramount to all others. If other interests would prevent him from making a sound decision from the point of view of the trust, a potential conflict of interest exists. See In re Derek Estate, 145 Mich App 94, 98; 377 NW2d 351 (1985). It is a fundamental principle that the trustee must display complete loyalty to the interests of the beneficiary, to the exclusion of all selfish interests or consideration of the interests of third parties. This principle is based on the understanding that a person acting in two capacities or in behalf of two interests may consciously or unconsciously favor one side over the other. It is not necessary that the trustee gain from the transaction to find disloyalty. Bogert, supra, § 543, p 204. "In its desire to guard the highly valuable fiduciary relationship against improper administration, equity deems it better to forbid disloyalty and strike down all disloyal acts, rather than to attempt to separate the harmless and the harmful by permitting the trustee to justify his representation of two interests.” Id., p 207.
As an attorney, Jaffe also had an obligation to use his skills and judgment in representing his client, thereby assuming a position of the highest trust and confidence. Beattie v Firnschild, 152 Mich App 785, 790; 394 NW2d 107 (1986). "A lawyer who is also a fiduciary bears a doubly high degree of responsibility and accountability.” State Bar Grievance Administrator v Estes, 392 Mich 645, 653; 221 NW2d 322 (1974). While the Code of Professional Responsibility is not directly in issue in this case, it is relevant as expressing a standard of professional conduct expected of lawyers by which Jaffe may be measured. See Beattie, supra, 152 Mich App 791. At the very least, the Code puts the attorney on notice that he is to be sensitive to the potential problems accompanying the representation of multiple clients, Canon 5, and that it is his duty to avoid even the appearance of impropriety. Canon 9; Melamed v ITT Continental Baking Co, 592 F2d 290, 293 (CA 6, 1979).
The cases cited by Jaffe for his proposition that multiple representation may be valid are not de terminative, since in those cases the parties were fully informed of the nature of the conflict. See, e.g., Melamed, supra, 592 F2d 290. As noted by the probate court, Dean Herlong and Bishop McGehee, as co-trustees, were not fully informed of the extent of Jaffe’s past representations of Cohen. Nor is it clear that they were kept apprised of the extent of his involvement in the Cohen negotiations and eventual sale. Similarly, the beneficiaries were not fully informed.
The fact is that Jaffe, as a named trustee, as the agent of Comerica and as an attorney with the law firm representing both the buyer and the seller, had a responsibility to avoid even the appearance of a conflict. The record indicates that the multiplicity of his roles created a situation fraught with conflict that could not be avoided by simply withdrawing as trustee for purposes of approving the Cohen offer. Jaffe’s own testimony indicates the difficulty of the position in which he found himself: "It’s very difficult in these kinds of situations, . . . to differentiate the head that you’re using as trustee from the head that you’re using as counsel. After all, you only have one. You have a lot of hats but you only have one head.” The record indicates that, even after he committed not to act as a trustee, he was actively involved in the negotiations, and yet he testified that he had declined to act as both attorney for the estate and trustee for the charitable trust. The only party left to represent was Cohen, but Jaffe maintains that his firm’s representation of the buyer was kept separate from him.
We know that Jaffe was involved in meetings regarding the adequacy of the offer and that he indicated approval of it to Comerica. As noted by the trial court:
Even had the one page circular been designed to expose the property in its most favorable light to the market, there obviously was no time for any developer to investigate the property, perform soil borings, conduct environmental studies, prepare site plans, have the property appraised and study development costs, let alone prepare a bid. Cohen, on the other hand, had the benefit of the Calvin Hall site plans and Tilton materials and had spent five months studying the property before he had Honigman lawyers submit his bid.
At the very least, the short time span between the mailing of the circular and the acceptance of the Cohen offer gives the appearance that matters had been manipulated to assure that no other offers would be submitted or considered. Given our earlier finding on the inadequacy of the sale efforts, we cannot say that Jaffe’s actions were the fair and adequate dealings of the loyal fiduciary. The court did not clearly err in finding a conflict or in finding that the conflict resulted in a breach of Jaffe’s fiduciary duties.
However, while it was appropriate for the probate court to consider the Code of Professional Responsibility as indicative of the standard to which Jaffe should be held, we find that its holding that he violated the Disciplinary Rules must be vacated. The appropriate context for consideration of this type of attorney misconduct appears to be proceedings by the attorney discipline board, see MCR 9.110, or an action brought by an aggrieved client, see, e.g., Beattie, supra, 152 Mich App 785. The probate court’s holding on this issue was not a necessary part of this adjudication and, to the extent it may be considered a holding of the court, we vacate it.
We further agree, given the facts of this case, that it is clear that Comerica had a responsibility to monitor or in some way react to Jaffe’s conflict. Comerica’s duty of loyalty applied to Jaffe and his firm as Comerica’s employees or agents. Where a trustee allows its agents to pursue their own interests while carrying on trust work, the trustee may be liable to the same extent as the agent. Bogert, supra, § 543, p 216.
On the basis of all of the above, we affirm the trial court’s holding that Jaffe and Comerica failed in their duties as trustees. Their actions and inactions were not mere negligence or errors in judgment. Their actions, clearly in violation of their duties and done with reckless or indifferent disregard of the beneficiaries’ interests, indicate they acted in bad faith and preclude any insulation from liability under the trust’s exculpatory clause.
As to Comerica’s liability as personal representative, by statute the personal representative stands in a position of confidence and trust with respect to the beneficiaries. MCL 700.501; MSA 27.5501. Edith Green’s will gave Comerica, as personal representative, the same broad powers it enjoyed as a trustee. But the similar limitation of liability, excluding negligence and mistake of judgment, was specifically made not applicable to a corporate fiduciary such as Comerica. As a fiduciary, Comerica is liable for loss resulting from its negligence in handling the estate and for any misfeasance, malfeasance, or other breach of duty. MCL 700.544; MSA 27.5544.
As a fiduciary, Comerica is held to the same standards regarding the sale of the property as were discussed above. Furthermore, the loyalty rule considered above with regard to Jaffe applies to all fiduciaries and their agents, not just trustees. Bogert, supra, § 543, p 216. The reasons discussed above also support the court’s finding that Comerica is liable for its failure to fulfill its duties as the personal representative.
Jaffe takes issue with the probate court’s application of provisions of the Probate Code which do not deal specifically with the unsupervised administration of the trust. As an unsupervised trust, the charitable trust is primarily governed by Article 8 of the Code. MCL 700.801 et seq.; MSA 27.5801 et seq. While Article 8 primarily deals with procedural issues, it also provides that the duties of a trustee are not altered by this portion of the Code. MCL 700.812; MSA 27.5812. Nor does governance under this part of the Code preclude the probate court’s application of or reference to other applicable provisions. See In re Gerber Trust, 117 Mich App 1; 323 NW2d 567 (1982).
The issue in this case was not whether specific provisions of the Probate Code were violated, but whether the fiduciary duty was violated. We find no error in the court’s reference to various Code provisions as guidance on the standard expected of the trustees. For example, in a conflict situation as was involved here, it would be prudent for the trustee electing to proceed in any capacity to both fully inform the beneficiaries and seek court approval. MCL 700.642; MSA 27.5642.
Comerica argues that the court erred in excluding the testimony of the Bloomfield Township assessor relative to the fact that being in the Pontiac school district affected the value of the land. The assessor was offered as a rebuttal witness. He was not offered as an expert witness, but as a "dispassionate public official” whose testimony "has some significance.” The probate court accepted the assessor’s testimony on changes in the market and environmental considerations, but found that it had heard enough regarding the school district issue. There was testimony on this issue from Majzels, Roberts, Kersten and Proctor.
The scope of rebuttal is within the sound discretion of the trial judge. Where the proffered testimony could have been introduced in the case in chief, refusing to accept the testimony is not an abuse of discretion. Wolak v Walczak, 125 Mich App 271, 279; 335 NW2d 908 (1983). Furthermore, Comerica failed to make an offer of proof and therefore did not preserve this issue for appeal. Without some indication of the substance of the testimony, it is not possible to tell if it was somehow so crucial to the case that its exclusion was error. Id., p 278.
As to whether Dean Herlong and Bishop McGehee were estopped to complain, as noted in the cases cited by Jaffe, the general rule is that ratification occurs only where the beneficiary acted with full knowledge of all the facts and not under the influence of misrepresentation, concealment or other wrongful conduct of the trustee. Newton, supra, 299 Mich 509; Lawrence v First Nat'l Bank & Trust Co, 266 Mich 199; 253 NW 267 (1934). The record supports the probate court’s finding that there is no estoppel because their qualified consent was not based on a full disclosure of the facts or the extent of the Jaffe-Cohen dealings. Nor were they fully informed, when they signed the Cohen land contract.
On the issue of damages, Comerica argues that the probate court erred in surcharging it for the loss sustained by the marital trust which owned approximately twenty percent of the real property. Jaffe also argues an error in the surcharge because the court did not consider that his duty was only to the charitable trust. It is not clear that this issue was raised below and, therefore, not being preserved for review, we need not address it. At torney General v Blue Cross & Blue Shield of Michigan, 168 Mich App 372, 383; 424 NW2d 54 (1988).
In any event, in essence, the issue in this case was to what extent, if any, were the beneficiaries injured by Jaffe’s and Comerica’s activities. The probate court found Comerica, as personal representative and trustee, and Jaffe, as trustee, jointly and severally liable for their activities in the amount of $1,900,000. See Bogert, supra, §862, p 35; 90 CJS, Trusts, §258, p 296. There was no finding concerning the marital trust, nor did there need to be. Comerica’s liability was based on an evaluation of its activities. That Comerica was not found liable for its role as trustee of the marital trust does not make its liability in its other roles any the less. The same is true for Jaffe. That Jaffe was not a trustee or personal representative of the estate is irrelevant to the liability imposed because of his own breach of duty as a trustee of the charitable trust. To carve out identities and liabilities at this stage of the proceedings smacks of the artificial and appears to be an effort to avoid liability rather than define the limits of liability.
Comerica further argues that the probate court erred in failing to credit Comerica for income received and expenses saved by the sale of the Homestead. The principle Comerica relies on has been applied in using gains to offset losses where the trustee has been involved in more than one transaction. See In re Estate of Bartlett, 680 P2d 369, 374-375 (Okla, 1984); Bogert, supra § 708, p 249; 3 Scott on Trusts (3d ed), §§213-213.2, pp 1711-1725. As in this case, where liability is based on selling property for less than its fair value, the general rule is that the loss to the trust is measured by the difference between the fair value and the amount received, or the amount the estate would otherwise have received. Thiel, supra, 96 Mich App 14; Scott, supra, §205, p 1667; Bogert, supra, § 747, p 506.
Finally, both Jaffe and Comerica ask that they be reinstated as co-trustees and personal representative. Removing a fiduciary is a question entrusted to the discretion of the probate court, and that court’s decision will not be reversed absent an abuse of discretion. In re Humphrey Estate, 141 Mich App 412, 423; 367 NW2d 873 (1985). Given the facts of this case, we find no abuse of discretion.
With the exception of the finding regarding Jaffe’s violation of the Code of Professional Responsibility, which is vacated, the probate court’s order is affirmed. | [
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Weaver, P.J.
Plaintiffs appeal as of right from a circuit court order dismissing their complaint which had requested grandparent visitation. We reverse.
i
Pursuant to the custody arrangement determined by the divorce judgment of defendants Laura Ann Jewett and Winn Jewett, the minor child of the marriage frequently visited Winn Jewett at his residence in the home of plaintiffs, his parents. Plaintiffs had an opportunity to see and interact with the child during these visits. Due to a change in Winn Jewett’s work schedule as a long-distance truck driver, however, plaintiffs began enjoying fewer opportunities to see their grandchild because Laura Ann Jewett refused to allow the child to visit when Winn Jewett was away.
Plaintiffs sued to establish a visitation schedule with their grandchild which was not dependent upon Winn Jewett’s schedule. The trial court dismissed the complaint. After rehearing, the trial court issued a written opinion again dismissing the complaint pursuant to Attard v Adamczyk, 141 Mich App 246; 367 NW2d 75 (1985), finding that no child custody dispute was pending before the circuit court after entry of the divorce judgment and that therefore the grandparents were precluded from seeking an order of visitation after entry of the judgment. Plaintiffs appeal as of right.
n
On appeal, plaintiffs argue that a child custody dispute was in fact still pending and hence the trial court had improperly dismissed their complaint. We agree.
We adopt the sound reasoning of Olepa v Olepa, 151 Mich App 690; 391 NW2d 446 (1986), to interpret § 7b of the Child Custody Act of 1970, MCL 722.21 et seq.; MSA 25.312(1) et seq. Section 7b(l) of the act, MCL 722.27b(l); MSA 25.312(7b)(l), provides that a grandparent may seek an order for visitation only if a child custody dispute with respect to the child is pending before the court. Section 7b(2) defines a “child custody dispute” to include a "proceeding” which involves annulment, divorce, or legal separation, or which involves giving legal custody to a party other than the child’s parent under certain circumstances.
We find untenable the conclusion, apparently reached in Attard, supra, that a child custody dispute is no longer pending before the circuit court once a divorce judgment has been entered. Instead, we agree with the Olepa panel that the Legislature simply intended to require that an action for annulment, divorce, or legal separation actually be filed before permitting a grandparent to seek a visitation order. Once filed, however, the entire proceeding remains under the jurisdiction of the circuit court for purposes of judgment enforcement or modification until the child reaches the age of majority. See, e.g., MCL 552.17 and 552.17a; MSA 25.97 and 25.97(1).
MCL 722.27b(4); MSA 25.312(7b)(4) restricts the grandparent from seeking a visitation order more than once every two years absent a showing of good cause. MCL 722.26; MSA 25.312(6) requires that the equitable provisions of the Child Custody Act be liberally construed to promptly establish the rights of the child and the rights and duties of the parties. Therefore we can only conclude, as did the Olepa panel, that unless one of the child’s parents has died, the right to seek an order of grandparent visitation continues under the jurisdiction of the same court which issued the judgment of divorce, annulment, or legal separation, subject only to the two-year filing requirement and the right to oppose modifications or termination of visitation orders. Olepa, supra at 696-700, 704.
In our judgment, it would defeat the intent of the Legislature and would also be inequitable to cut off a grandparent’s right to seek visitation orders after a divorce judgment has been entered, since visitation problems involving grandparents typically do not arise until after circumstances have changed subsequent to entry of the judgment.
We remand this matter to the circuit court for an evidentiary hearing to be conducted in compliance with MCL 722.27b(3); MSA 25.312(7b)(3), in which the court must give plaintiffs an opportunity to be heard, must determine whether an order of visitation would be in the best interests of the child, and must make a record of any reasons for denying the request for a grandchild visitation order, including specific findings on the contested issues. Olepa, supra at 702, 704.
Reversed and remanded. We do not retain jurisdiction.
Judge Gillis is aware of the fact that he wrote Attard and he now confesses error and believes that the better reasoning is in the Olepa case. | [
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] |
Per Curiam.
Petitioner-appellant Walter Theuerle, M.D., appeals from an order of the Genesee Circuit Court which affirmed the denial of reinstatement of his license to practice medicine by the State Board of Medicine and Department of Licensing and Regulation.
This seventy-five-year-old general practitioner was born in Poland. His legal troubles began in 1973 when a complaint was filed by the board alleging that he had dispensed drugs for nontherapeutic purposes and wrote sick-leave excuses without medical justification. As a result, petitioner’s license was suspended for three months and his license to prescribe controlled substances permanently revoked. Following a hearing on the matter before a district judge, petitioner was absolved of any criminal wrongdoing in this matter.
On October 20, 1980, the Attorney General filed a second complaint, alleging that petitioner had again prescribed drugs for nontherapeutic purposes and wrote false work excuses and false medical insurance claims. Following a hearing, the hearing officer determined that the allegations were true.
The board, approving and adopting the hearing examiner’s findings and conclusions, suspended petitioner’s medical license for two years commencing on the date of the order, November 11, 1982. The suspension was subsequently upheld on appeal.
When the suspension period expired, petitioner applied to the board for reinstatement. An administrative hearing was held on June 9, 1986, at which time petitioner adduced testimony from several witnesses, all of whom were his longtime friends and associates, who attested to his good character and that it would serve in the public interest for him to resume his practice.
In a written opinion, the examiner made full findings of fact and law supporting his conclusions that petitioner had shown by clear and convincing evidence that he was of good moral character, able to practice medicine with reasonable skill and safety to patients, and that he should be permitted to resume his practice in the public interest. Having concluded that petitioner met the requirements of MCL 333.16247; MSA 14.15(16247), reinstatement of petitioner’s license was recommended.
Although the board purportedly adopted the examiner’s findings and rulings, it denied reinstatement, holding, instead, that as a matter of law petitioner had failed to establish by clear and convincing evidence that he had met the requirements for reinstatement as set forth in § 16247.
Petitioner appealed to the Genesee Circuit Court, which affirmed the board’s decision. In do ing so, the court rejected petitioner’s favorable testimony and essentially found that petitioner’s long-term record of misconduct made reinstatement inappropriate.
On appeal, petitioner argues that the board’s denial of reinstatement was not supported by competent, material and substantial evidence on the whole record and was therefore arbitrary and without justification. He argues further that the board’s approval of the hearing officer’s finding that petitioner was of good moral character required it to adopt the recommendation of reinstatement. Finally, petitioner argues that he established by clear and convincing evidence that he met the requirements of good moral character.
Section 16247 of the Public Health Code provides in relevant part:
A board may reinstate a license or issue a limited license to an individual whose license has been suspended or revoked under this part if, after a hearing, the board is satisfied that the applicant is of good moral character, is able to practice the profession with reasonable skill and safety to patients, and should be permitted in the public interest to resume practice.
The pertinent administrative rule requires that an applicant for reinstatement demonstrate his qualifications under the statute by clear and convincing evidence. 1980 AACS, R 338.973(2). Judicial review of an administrative decision is set forth in the Administrative Procedure Act, MCL 24.201 et seq.; MSA 3.560(101) et seq. Specifically, § 106 governs these proceedings and provides the following regarding review of an agency’s decision:
(1) Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following:
(a) In violation of the constitution or a statute.
(b) In excess of the statutory authority or jurisdiction of the agency.
(c) Made upon unlawful procedure resulting in material prejudice to a party.
(d) Not supported by competent, material and substantial evidence on the whole record.
(e) Arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion.
(f) Affected by other substantial and material error of law.
(2) The court, as appropriate, may affirm, reverse or modify the decision or order or remand the case for further proceedings. [MCL 24.306; MSA 3.560(206).]
The primary issue at the hearing was petitioner’s moral fitness for reinstatement pursuant to § 16247. For purposes of licensure, "good moral character” has been defined:
(1) The phrase "good moral character”, or words of similar import, when used as a requirement for an occupational or professional license or when used as a requirement to establish or operate an organization or facility regulated by this state in the Michigan Compiled Laws or administrative rules promulgated under those laws shall be construed to mean the propensity on the part of the person to serve the public in the licensed area in a fair, honest, and open manner. [MCL 338.41; MSA 18.1208(1).]
In this case, the board, in its order denying reinstatement, expressly approved the hearing examiner’s rulings and adopted the findings of fact and yet concluded without further explanation that as a matter of law petitioner has failed to establish his qualification under § 16247. Given that the focal point of the administrative proceedings and the hearing officer’s opinion was petitioner’s moral fitness, we can only surmise from the board’s ruling that it in fact disregarded the hearing officer’s findings and was not convinced of petitioner’s moral fitness. The circuit court also assigned this interpretation to the board’s order as evidenced when the court stated that "the Board is concerned about the same thing that this Court is concerned about ...” to wit, petitioner’s prior record of misconduct. Indeed, the court went on to state, "[b]ut it would appear to the Court that one of the very reasons for the first suspension is again the very thing that has caused the suspension the second time.”
However, at the hearing the Attorney General produced no new evidence to rebut petitioner’s evidence of good moral fitness. Although petitioner’s status as a prior offender is alone indicative of his propensity for dishonest dealing, his past record as an offender is in and of itself insufficient to justify a finding of moral unfitness. To this extent, the Legislature has expressly limited the effect of a prior judgment in a civil action:
Sec 2. A judgment of guilt in a criminal prosecution or a judgment in a civil action shall not be used, in and of itself, by a licensing board or agency as proof of a person’s lack of good moral character. It may be used as evidence in the determination, and when so used the person shall be notified and shall be permitted to rebut the evidence by showing that at the current time he or she has the ability to, and is likely to, serve the public in a fair, honest, and open manner, that he or she is rehabilitated, or that the substance of the former offense is not reasonably related to the occupation or profession for which he or she seeks to be licensed. [MCL 338.42; MSA 18.1208(2).]
The statute also provides for judicial relief from a licensing agency or board determination of moral unfitness where, "in the opinion of the circuit court, the record does not disclose a lack of good moral character, as defined in [the] act, the Court shall so state and shall order the board to issue the license.” MCL 338.46; MSA 18.1208(6).
In view of the fact that the only affirmative evidence adduced at the hearing of petitioner’s continued moral unfitness was his past record, he is entitled to judicial relief from any order premised on such a finding.
In addition, the board’s adverse order is vague and self-contradictory and runs afoul of MCL 338.45; MSA 18.1208(5) which provides:
When a person is found to be unqualified for a license because of a lack of good moral character, or similar criteria, the person shall be furnished by the board or agency with a statement to this effect. The statement shall contain a complete record of the evidence upon which the determination was based. The person shall be entitled, as of right, to a rehearing on the issue before the board if he or she has relevant evidence not previously considered, regarding his or her qualifications.
Here, the parties assume, and we agree, that the board’s denial was premised on a finding that petitioner lacked good moral character. Such a determination appears to be inconsistent with the board’s purported acceptance and adoption of the hearing officer’s findings in which he found the petitioner was morally fit and competent to practice medicine. MCL 333.16247; MSA 14.15(16247). Thus, if the board found that petitioner was morally fit to practice medicine then its adverse decision was contrary to law. MCL 24.306(l)(a); MSA 3.560(206)(l)(a). Similarly, if its decision was solely premised on petitioner’s past record of misconduct, then its order is still unlawful. MCL 338.42; MSA 18.1208(2).
Finally, if indeed the board based its denial of reinstatement on petitioner’s moral unfitness, petitioner was entitled to a statement by the board to that effect. MCL 338.45; MSA 18.1208(5). Instead, the order was conclusory and self-contradictory. The board’s failure to articulate the legal and evidentiary basis for its decision falls far short of the legislative mandate and fails to withstand judicial scrutiny.
We reverse the order of the circuit court and order petitioner’s license to be reinstated. | [
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] |
T. M. Burns, P. J.
Defendant was convicted of armed robbery, MCLA 750.529; MSA 28.797, and sentenced to a term of from 7 to 15 years. The robbery occurred at a bar in Lincoln Park, Michigan. The police received an anonymous tip that the defendant was involved in the robbery. The police asked the robbery victim to look through 15 photographs, two of which were pictures of the defendant. The victim picked out the pictures of the defendant as those of the man who committed the robbery.
I
Defendant’s first allegation of error is that the photographic identification was improperly suggestive. The robbery victim testified at trial that she had a clear view of the robber while the crime was being committed and that she recognized defendant’s photograph as that of the robber at the photographic showup. She also made an in-court identification of the defendant which, she testified, was based on the view she had of the robber at the time of robbery and not on the photograph identification.
Our Supreme Court has recently recognized the principle that:
"[C]onvictions based on eyewitness identification at trial following initial identification by photograph would be set aside on that ground only if procedures used were so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”
This Court has repeatedly held that despite an improper photographic identification, the victim’s subsequent in-court identification will not be deemed inadmissible if it had an independent basis.
We believe that the facts of the case clearly indicate that there was a basis for the victim’s in-court identification of the defendant independent of the photo showup. The victim, Mrs. Bauer, testified that she looked directly at the robber at the time of the holdup. She, at that time, noticed that he had a scar or scab on his apparently broken nose, which the magistrate conducting the arraignment also noticed. We conclude that there was a sufficient independent basis for the in-court identification and that any suggestiveness in the photo showup was not fatal.
II
In his second assignment of error the defendant alleges that the police tried to tamper with a defense witness after he had testified. During the trial, defense counsel stated in an unsworn statement before the court that the witness told him that a police officer visited him in his jail cell and threatened him in an attempt to get the witness to recant his testimony. Defendant claims that he should have been permitted to present evidence of this tampering or that a mistrial be granted.
Upon a careful review of the record, we can find no attempt by defendant to recall the threatened witness to testify regarding the alleged tampering. Therefore, there is nothing on the record to which we can assign error. Furthermore, we agree with the trial court that the defendant could not have been prejudiced by any intimidation of this witness as the alleged threats were made subsequent to his testimony. This is not meant to be a cavalier dismissal of the tampering charge. Police intimidation of a witness is an extremely serious matter which warrants careful investigation. We merely find no error at trial relative to the alleged tampering.
Ill
Defendant next contends that the prosecutor committed reversible error by cross-examining a defense witness regarding arrests not resulting in conviction. The prosecutor asserts that this was not error as defense counsel opened the door to such cross-examination by asking the witness on direct examination about his criminal record, reversals of convictions, and pleas to lesser charges. Direct examination of the defense witness went as follows:
"Q. Mr. Fiorini, suppose we find out what your convictions are, when they were, what your criminal record is? Will you tell us about it, please?
"A. Sure, — I was convicted in 1939 for larceny from a person, and in 1943 for robbery armed.
"Q. 1953?
"A. ’43. And in 1956, well, there was half dozen charges involved there but it wound up larceny or, rather, that was ’57. And then 1963, I escaped, and in 1968 I was found guilty of a felonious assault and then I was just convicted in August, which is pending appeal now.
"Q. What were you convicted of?
’A. Armed robbery, which was almost five years.
”Q. Now, of these convictions, were any of them later reversed by a higher court?
"A. A couple of them.
”Q. Which ones?
'A. The armed robbery in Detroit.
"Q. That was in 1943?
"A No, that was in 1957.
"Q: ’57?
’A. Yes.
"Q- Do you mean the one that you said wound up as larceny?
"A Yes.
"Q. That was reversed by a higher court?
'A. No, reversed by the trial court.
"Q. You mean on a motion for a new trial?
’A. The Judge who tried me died and the successor Judge granted a new trial.
”Q. And on the new trial, it was the previous verdict was—
’A. (Interrupting): Well, at the new trial, before I could get a reversal, because of the Judge’s death, and whatnot, it took me almost four years to get it and then, rather than go through the trial all over again, I agreed to plead guilty to larceny from a person with the stipulation that I would receive credit for the time I had already served and would get the balance on probation, which is what happened.
"Q. I see. Were any others set aside by a higher court?
'A. Well, others that were completely reversed, discharged.
"Q. Any other convictions, other than these that you have mentioned?
’A. No. Isn’t that enough?”
The testimony elicited by the defense went far beyond convictions. Defendant argues that the witness’s answers which contained information about mere arrests and pleas were nonresponsive and were not meant to be elicited by defense counsel. The fact remains, however, that defense counsel’s questions were very broad and if he wishes to pose such open-ended questions, he must expect such responses. We believe that under these circumstances it was not reversible error for the prosecution to cross-examine the defense witness concerning his arrests, as the defense counsel had opened the door to such questions on direct examination.
The scope of cross-examination for impeachment purposes has received much attention by our Court in recent years. In 1969, this Court held that it is error to cross-examine the defendant in a criminal suit concerning prior arrests not resulting in conviction. Subsequent cases have broadened Brocato to include all witnesses and to defendants who subsequently pled to or were convicted of a lesser offense.
Our Supreme Court has recently affirmed Brocato and the cases following it by holding that:
"[I]n the examination or cross-examination of any witness, no inquiry may be made regarding prior arrests or charges against such witness which did not result in conviction; neither may such witness be examined with reference to higher original charges which have not resulted in conviction, whether by plea or trial.”
It has been recognized, however, that there is an exception to the rules limiting the scope of cross-examination on arrests. In People v Bearden, we held that the prosecutor’s asking the defendant about the last time he was arrested was not error where defense counsel first raised and pursued the line of questioning that led to the defendant’s admission of his prior criminal record. Later, in People v Johnson, the Bearden rule was extended to all witnesses. The following excerpt from the Johnson opinion is particularly applicable to the case at bar:
"The initial impermissible reference to the witness’ arrest was solicited by defense counsel on direct examination. In People v Bearden, * * * this Court denied defendant the benefit of Brocato when his prior arrest was elicited by defense counsel on direct examination. This rule is no less applicable to witnesses. Since the jury received knowledge of the defense witness’ prior arrest through defense counsel’s direct efforts, the onus for any prejudice produced cannot be placed upon the prosecutor. Defendant must accept the burden of his own trial tactics.”
Defendant cites People v Peabody, supra, as supporting his argument. In Peabody, we said that defense counsel did not open the door to the prosecutor’s improper questioning by merely ask-, ing on direct examination about defendant’s prior convictions. Peabody does not control this case as here defense counsel inquired into the witness’s criminal record, not merely convictions. This line of questioning did open the door for the prosecutor to expand his cross-examination beyond the Falkner limitations.
IV
The next issue concerns the trial court’s denial of defense counsel’s request to be permitted to take the stand and testify as to an incident he witnessed concerning two prosecution witnesses. Defense counsel wanted to testify that while in the courtroom hallway he saw one prosecution witness, Mrs. Kuzawinski, make a gesture in the direction of a defense witness, David Proctor, and then another prosecution witness, Mrs. Bunniss, moved her eyes as if to signify assent. These acts were supposed to have pointed out the defense alibi witness as a person present in the bar at the time of the robbery. Defense counsel had previously questioned Mrs. Kuzawinski about the hallway incident on cross-examination, and she denied that she had pointed Proctor out to Mrs. Bunniss. Defense counsel hence desired to give his testimony to impeach Mrs. Kuzawinski.
Defendant’s contention that the trial court erred in refusing to allow defense counsel to testify is without merit. When a witness is cross-examined on a matter collateral to the issues on trial, the cross-examiner is bound by the answers of the witness. Mrs. Kuzawinski denied the hallway incident. Defense counsel is bound by the denial and cannot introduce extrinsic evidence to contradict that testimony.
Even had such rebuttal been proper, the trial court would have been correct in not allowing defense counsel to testify, as the impropriety of having defense counsel take the stand outweighed the probative value of his testimony. While there is no absolute prohibition of an attorney testifying on behalf of his client, this practice is not favored and it is within the discretion of the trial court to permit or disallow such testimony.
V
After a careful review of the record and the briefs of the parties, we conclude that defendant’s final two assignments of error concerning jury-instructions and impeachment are without merit and do not warrant decisional discussion.
Affirmed.
People v Anderson, 389 Mich 155, 168; 205 NW2d 461 (1973), discussing Simmons v United States, 390 US 377; 88 S Ct 967; 19 L Ed 2d 1247 (1968).
People v Edwards, 55 Mich App 256, 262; 222 NW2d 203 (1974), People v Harper, 43 Mich App 500; 204 NW2d 263 (1972), People v Maniez, 34 Mich App 55; 190 NW2d 682 (1971).
People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969).
People v James, 36 Mich App 550; 194 NW2d 57 (1971).
People v Peabody, 37 Mich App 87; 194 NW2d 532 (1971).
People v Falkner, 389 Mich 682, 695; 209 NW2d 193 (1973).
29 Mich App 416; 185 NW2d 438 (1971), lv den 384 Mich 832 (1971).
46 Mich App 212; 207 NW2d 914 (1973).
46 Mich App at 219; 207 NW2d at 918.
See 1 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 405, p 492, relying on People v Barrette, 233 Mich 615; 208 NW 27 (1925).
See People v Johnson, supra, at 223. | [
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Per Curiam.
This case began as an attempt by the parties to contract for the sale of plaintiff’s business to defendants. This attempt produced a written and several oral agreements which the parties executed without advice from an attorney. The subsequent dispute, however, involved numerous attorneys, protracted litigation, an involved opinion and a multifaceted appeal.
Prior to August, 1972, plaintiff, as a sole proprietor, owned and operated Stratton Plastic Processors. Defendant Harold Schrier was the sole share holder, president and director of defendant Pearl Grange Fruit Exchange, Inc. (Pearl Grange). During the pendency of this appeal, Schrier died and defendant Jensen was appointed administratrix of his estate and was substituted as a party to this appeal.
On August 9, 1972, plaintiff and Schrier executed a written document entitled "Equipment Agreement”. The parties to the agreement were plaintiff and P & G Plastics, a division of Pearl Grange that was being created to enter into the plastics business. Prior to the purchase, Pearl Grange was not involved in the plastics field. Under the terms of this agreement, P & G Plastics agreed to purchase plaintiff’s "equipment, their parts as listed, customers and technology * * * for the sum of $78,000”. The purchase price was made payable by defendants’ assumption of two mortgages owed by plaintiff, one for $31,892 held by the Park Forest Bank of Illinois and the other in the amount of $3,447 held by the Bank of Blue Island, plus a twelve-month note for the difference between the purchase price and mortgage assumptions. Plaintiff claimed, and defendants denied, that the parties also entered into an oral employment agreement whereby plaintiff was given authority to make purchases on behalf of Pearl Grange.
On September 1, 1972, plaintiff began delivery of his equipment to a building owned by defendants. At that time, defendant Schrier expressed dissatisfaction with it. Schrier claimed at trial that he instructed plaintiff to take it back. Nonetheless, the equipment was installed by defendants’ employees and used by defendants. Defendant paid plaintiff $5,000 additionally to help defray the cost of moving the equipment. In addition to the equip ment and parts, plaintiff delivered to Pearl Grange for storage a quantity of plastic material, which was being held for delivery to another firm, and a piece of machinery called a "chipper”.
Subsequent to delivery of the equipment, defendants failed to execute the twelve-month note or to make payments on either of the mortgages as provided in the agreement. Instead, defendant Schrier purchased from the holder of the larger mortgage an assignment of its interest as secured creditor. Thus, when plaintiff did not pay the mortgage, Schrier took legal possession of the collateral, plaintiff’s equipment, which he, in fact, already possessed.
Plaintiff sued for the balance of the purchase price, for wages claimed pursuant to the oral employment contract, for return of his inventory, for supplies allegedly purchased for defendants’ benefit and for alleged damage to plaintiff’s reputation and credit. Defendants counter-claimed alleging misrepresentation by plaintiff as to the value and condition of the equipment sold, loss of profits, loss of $20,000 because of plaintiff’s use of defendants’ storage space, alleged conversion of certain plastic by plaintiff, alleged damage to credit in being sued for debts owed by plaintiff and for loss of business alleged to have been caused by plaintiff.
After a non-jury trial, in a well-written and concise opinion, covering all questions, the Kalamazoo County Circuit Court directed defendants to hold the plaintiff harmless on any remaining indebtedness on the two mortgages. The court awarded to plaintiff damages in the amount of $44,353.90 with interest, representing the difference between the mortgages purchased by defendant Schrier and the $78,000 purchase price con tained in the equipment agreement. Judgment was further entered against defendants for $3,150.24 for additional expenses of the plaintiff in moving the equipment. Judgment was denied plaintiff for any salaries or commissions, but judgment in the amount of $438.83 was granted to plaintiff for expenses. The court ordered defendants to pay certain invoices for supplies and to deliver to plaintiff the inventory owned by plaintiff and held by defendants, or, in lieu thereof, to pay damages not to exceed $16,000.
Judgment was further granted in the amount of $750, determined by the court to be the value of 30,000 pounds of plaintiff’s plastic which the court found defendants had sold. The court also required defendants to pay in the amount of $542.85 for plastics sold by plaintiff to another company, Poly-Mar Plastics. Defendants were also ordered to deliver the chipper to plaintiff, or in the alternative to pay the sum of $2,800. Judgment was further granted to plaintiff for the sum of $685.88 for supplies belonging to plaintiff and delivered to defendants.
Defendant appealed and plaintiff filed a cross-appeal. On appeal, defendants raise nine claims of error. Of these, all but two challenge the trial court’s findings of fact. In such cases, an appellate court will give great weight to the trial court’s findings and will not substitute its judgment unless the findings were contrary to the great weight of the evidence and thus "clearly erroneous”. GCR 1963, 517.1, Goodwin, Inc v Orson E Coe Pontiac, Inc, 392 Mich 195; 220 NW2d 664 (1974), Kurrle v Walker, 56 Mich App 406; 224 NW2d 99 (1974). Having reviewed the record, we hold that the challenged findings were supported by the evidence presented.
In addition, defendants contend that the trial court erred by making an award to plaintiff in compensation for some of plaintiffs plastic which defendants had sold despite the fact that plaintiff used an illegal self-help remedy and converted some of defendants’ plastic to his own use.
According to the evidence, 10,340 lbs. of plaintiffs plastic which had already been processed by plaintiff was delivered to defendants’ plant. This plastic had already been sold to another company, Poly-Mar. It was not part of the agreement between the instant parties.
Apparently defendants went ahead and sold this plastic to another. Plaintiff then shipped an equivalent amount of defendants’ plastic to Poly-Mar at a later date. Both parties have billed Poly-Mar, who refuses to pay until it is established which of the instant parties is entitled to payment. The court awarded judgment to the plaintiff for the amount of the invoice plus interest while at the same time requiring defendants to collect from Poly-Mar.
We agree that plaintiff should not be rewarded for his actions. However, we find that defendants should not be rewarded for their apparent conversion of plaintiffs plastic. Since both parties were wrongdoers and were unjustly enriched by their self-help techniques, neither should profit. Weller v Weller, 344 Mich 614; 75 NW2d 34 (1956). Therefore, we affirm the court’s order as to this issue but vacate the requirement that defendants pay interest on the $542.85 awarded plaintiff on this claim. In this way, the parties will be left with the same inventory and capital as they would have had if plaintiff had originally been able to sell his plastic to Poly-Mar.
The second appellate claim of defendants which we consider is that the trial court erred by awarding $16,000 to plaintiff for inventory stored and sold by defendants and found to be plaintiff’s property. Defendants argue that there was no testimony on which this award could properly have been based. A review of the record on this issue leads only to confusion. The trial court’s original judgment provided that, if the parties could not agree on the inventory value, the court would retain jurisdiction of the case and would hold a post-trial hearing, hear evidence and determine its value. Only plaintiff’s attorney appeared at the hearing. Plaintiff’s attorney indicated to the court that an associate of defendants’ attorney had approved the settlement of judgment prepared by plaintiff. This settlement set the inventory value at $16,000. One month later, defendants’ attorney moved to have this judgment set aside. He claimed that he had not approved the settlement and that he had asked his associate to appear, but his associate had, instead, merely approved plaintiff’s settlement. Defendants’ attorney further offered to fulfill the order of the court and return plaintiff’s inventory. The trial court denied defendants’ motion to set the judgment aside.
We find that defendants did not wilfully fail to appear and that defendants made a good-faith offer of settlement when they did appear. We believe that fairness will be better served by giving the parties a hearing at which both sides may present evidence or offers of settlement. Pursuant to GCR 1963, 820.1(7) we order that this issue alone be remanded to the trial court for such a hearing, one which shall be transcribed.
On cross-appeal, plaintiff raises two claims of error. First, plaintiff contends that the court erroneously construed the terms of the oral employ ment agreement between plaintiff and defendants. Defendants argue that the oral agreement never existed.
The court’s finding as to the existence of the agreement is supported by the evidence. The contract provided that plaintiff would receive a 7 percent commission on the total gross sales generated by him. The court found that plaintiff could earn a commission only on sales made to new customers, not on sales to customers to whom plaintiff sold prior to his deal with defendants. The court based its holding on the fact that, by the terms of the written contract, plaintiff sold his "customers” to defendants.
Plaintiff argues that, because the court found in plaintiff’s favor as to the existence of the employment contract, it, perforce, should then have found the terms as plaintiff stated them. While the court’s broad equitable powers render this argument without merit, we find ample evidence in the record to support plaintiff’s argument. When the parties used the term "customers”, they may have meant, in lay terms, "goodwill”.
We need not, however, resolve this claim. Our review of the record convinces us that plaintiff never demonstrated what portion of defendants’ sales were attributable to plaintiff. Plaintiff merely claimed that he should get 7 percent of defendants’ total sales. Plaintiff is therefore not entitled to recover any commission on these sales.
We find without merit plaintiff’s second appellate claim, that he should get punitive damages for defendants’ use of plaintiff’s equipment after defendants had obtained it by purchasing the Bank of Park Forest mortgage. Plaintiff was not damaged by defendants’ action. Defendants’ purchase of the mortgage resulted in its cancellation, con sistent with the parties’ contract. Plaintiff could not receive punitive damages since he demonstrated no actual damage. Durfee v Newkirk, 83 Mich 522; 47 NW 351 (1890).
Remanded, as directed, for a hearing to determine the inventory dispute. Affirmed as to all other issues. No costs, neither party having prevailed in full. We do not retain jurisdiction. | [
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V. J. Brennan, J.
Defendants State of Michigan and Charter Township of Delta appeal from the interlocutory order of Ingham Circuit Judge Thomas L. Brown on September 21, 1976, requiring them to proceed with reforestation of plaintiff’s property pursuant to an original sewage facility condemnation proceeding begun in 1970. Defendants appeal by leave granted November 1, 1976, including provision for immediate consideration and stay of trial proceedings. A brief summary of the lengthy history of this case is necessary to clarify our resolution of this appeal.
On February 11, 1970, Delta Township filed a complaint in Eaton County Circuit Court to condemn an easement against the Eyde property and that of Pearl Myers Horst. The easement was necessary to install a 30-inch pipe to provide sewage disposal facilities for the state’s secondary ^office complex located west of the City of Lansing in Windsor Township of Eaton County. A further purpose was to use the Carrier Creek interceptor extension as a principal sewage disposal system for future development of Delta Township.
A condemnation jury awarded the property owners $6,000. On appeal, we affirmed with Judge Targonski dissenting. Delta Township v Eyde, 40 Mich App 485; 198 NW2d 918 (1972). The Michigan Supreme Court reversed us and adopted the dissenting view that the easement was limited to 50 feet, not 50 feet "and sufficient area for construction”. Delta Township v Eyde, 389 Mich 549, 555-556; 208 NW2d 168 (1973). However, being persuaded that the $6,000 was intended to compensate for only the 50-foot easement, the Court found no need for a new trial. The cause was thus remanded to the circuit court for amendment of the judgment in conformity with the jury award by deleting the words "and sufficient area for construction”.
On December 13, 1973, the present action was started as an equity suit in Ingham County Circuit Court, seeking to enjoin the construction of the sewer as violative of the Environmental Protection Act of 1970, effective October 1, 1970. MCLA 691.1201 et seq; MSA 14.528 (201) et seq.
On April 30, 1974, Ingham County Circuit Judge Thomas L. Brown entered a final order (judgment) pursuant to an order of the Supreme Court on April 2, 1974, issued in response to a motion by defendants, in holding that the matters presented were not the same as presented in the condemna tion action and so not precluded by the principle of res judicata. Judge Brown also found that the sewer "threatened ecological damage to the Carrier Creek as it crosses the property owned by plaintiffs Eyde, [and] additional damage down stream in the Carrier Creek to the Grand River into Lake Michigan”. The judgment permanently enjoined defendant township and the State of Michigan from using the easement acquired in the condemnation action and provided that plaintiffs Eyde would furnish a legally described alternate 50-foot easement for consideration. Were plaintiff unable to furnish such alternate easement, then a second legally described alternative would be necessary. Provision was included for appointment of a master were defendants to use "that portion of the present easement across Plaintiffs’ land from manhole 12 North”.
On appeal, we reversed Judge Brown’s ruling by opinion of this Court dated July 26, 1974 (memorandum opinion, Docket No. 20210). The Supreme Court reversed our decision in its order of January 21, 1975. Eyde v State of Michigan, 393 Mich 453; 225 NW2d 1 (1975). The Court there reinstated the order of the Ingham County Circuit Court, giving various reasons for its decision.
The questions now before us involve matters which have occurred upon remand from that order to the circuit court. On August 8, 1975, the parties stipulated to an alternative route for the easement, referred to as Alternative C. An amended judgment was entered that same day incorporating this alternative easement route. John Cushing and Ray White were appointed as masters to manage the project. Construction of the sewer then commenced but was delayed because of several legal challenges by Pearl Mowrer, formerly Pearl Myers Horst, both in state and Federal court. On August 29, 1975, plaintiffs obtained a temporary restraining order on the theory that the masters had not yet submitted reports to the court for approval. At the show cause hearing, the question arose whether the masters’ authority extended to the entirety of Alternative C. No clear answer emerged at this hearing.
The temporary restraining order was dissolved on September 8, 1975. At a meeting of the masters on October 7, 1975, the court did rule that the masters’ jurisdiction included the entire project. Though disputed on appeal, the matter of planting trees equal in number to those removed and whether space would be left for access by vehicles for inspection, maintenance and repair purposes emerged for consideration.
Despite the constant litigation, construction of the sewer was completed on January 12, 1976. At a hearing on September 7, 1976, the court heard testimony concerning two restoration plans. After receiving testimony, the plan submitted by Dr. Stevens was adopted. This plan proposed that the land be restored as closely as possible to its preconstruction condition. Under this plan, access to the easement by vehicles was not discussed. The estimated cost of the plan was $67,000. Dr. Stevens was substituted for Ray White as a master for the project. The court retained jurisdiction.
Delta Township moved for rehearing or clarification due to the failure of the plan to provide for vehicular access to the easement. On September 28, 1976, an evidentiary hearing was held and evidence of the need for access and changes required to obtain such access was presented. The court denied the motion, noting that in the future the township could gain access to the sewer for maintenance by seeking a court order providing for the removal of obstacles to any necessary equipment. Defendants appeal from the order of September 21, 1976, adopting the Stevens recommendation for restoration.
On appeal, defendants raise two principal allegations of error.
Defendants first argue that the trial court on remand improperly expanded the directive of the Michigan Supreme Court by extending the jurisdiction of the masters to cover the entire project and by improperly adding reforestation requirements.
The Supreme Court expressly reinstated the trial court’s order of April 30, 1974. We are bound by the instructions expressed there. Theisen v City of Dearborn, 48 Mich App 571, 573; 210 NW2d 777 (1973).
The trial court’s order arguably provided for the appointment of a master concerning both (1) environmental problems incident to actual construction of any sewer involving "that portion of the present easement across Plaintiffs’ land from manhole 12 North” and (2) any problems encountered generally in restoring the property to its original condition. The new easement route, termed Alternate C, to which the parties stipulated after remand from the Supreme Court on August 8, 1975, contained similar provision for appointment of a master as originally provided in the order of April 30, 1974. The amended judgment of August 8, 1975, incorporated such provision in the following terms:
"NOW THEREFORE IT IS ORDERED that Defendant, The Charter Township of Delta, be and is hereby granted an easement to the following described property for the purposes of constructing the Carrier Creek Interceptor Extension, which construction shall be accomplished under the terms and conditions of the previous Judgment entered in this Court on April 30, 1974, including but not limited to the appointment of a master to oversee the construction of the sewer along Alternate C, under the same circumstances as contained within the Judgment of April 30,1974 * * *
We hold that the trial court did not err in its implementation of the Supreme Court order reinstating the trial court’s own judgment of April 30, 1974, when the court extended the provision for a master concerning restoration to the new Alternate C easement route. Ample evidence, including the trial court’s own interpretation of its previous order and the stipulation of the parties, supports the interpretation that the order of April 30, 1974, provided general authorization for appointing a master to oversee any necessary restoration plans anywhere proposed, thus including the later Alternate C easement route adopted by the parties. We find this interpretation renders the trial court order of April 30, 1975, the Supreme Court order of January 21, 1975, and subsequent trial court orders more reasonable, effective and conclusive. Hendrie v Lowmaster, 152 F2d 83, 85 (CA 6, 1945).
We also find that the order of April 30, 1974, authorized restoration measures. The language of the order unequivocally calls for restoration of the land, and the subsequent interpretations by the court of its own language simply reinforce this conclusion. Although the order of April 30, 1974, did not mention trees and shrubs by name, we have no reason to believe the Supreme Court would have acted any differently in remanding the case had such a reference been expressly included. Certainly, the removal of trees constitutes obstruction of natural resources under MCLA 691.1202; MSA 14.528(202) and MCLA 691.1203; MSA 14.528(203). If we were to consider that the Supreme Court limited its reinstatement of the trial judge’s order to water pollution measures only, we would be blind to the environmentally sensitive thrust of that high court order and inevitable implication that restoration of the total environment would be necessary to answer problems in this case arising under the act. Restoration of the kind ordered by the court pursuant to the Stevens plan is necessary to adequately resolve the environmental questions raised by plaintiff and addressed by the trial court’s commendable supervision incident to restoring plaintiff’s property.
Defendants contend next that the trial court improperly exercised its discretion by ordering restoration of the easement route so as to prevent vehicular access to the sewer for repair and maintenance purposes.
Note can be made here that we review cases brought under the Michigan Environmental Protection Act de novo. Ray v Mason County Drain Commissioner, 393 Mich 294, 303; 224 NW2d 883 (1975). However, as a general rule in equity cases, we accord great weight to the findings of the trial judge. Kropf v Sterling Heights, 391 Mich 139, 164; 215 NW2d 179 (1974) (concurring opinion). We find the trial judge in this case correctly followed statutory procedures when he determined that the intended use of defendant’s easement would destroy natural resources of the state and that a feasible alternative permitting environmentally safe construction existed. See Ray v Mason County Drain Commissioner, supra.
We do not find the Stevens’ plan adopted by the trial court violative of the Supreme Court order issued January 21, 1975. The Supreme Court merely observed that the prejudice to defendants in cost terms would be minimal in their opinion under the order as constituted by the trial court on April 30, 1974. We do not find the statement of opinion by the Supreme Court to be a limiting mandate on the possible options open to the trial court on remand. We do not find that this vague statement by the Court can serve to reverse the careful planning incident to the restoration of plaintiff’s property accomplished since then. We do not find the figures incident to the Stevens’ plan unreasonable or so prejudicial as to constitute clear error. We affirm these costs.
We also find the trial judge ruled correctly in response to defendant’s contention that vehicular access to the manholes along the sewer is necessary for repair and maintenance purposes. As a general rule, an owner of a pipeline easement is entitled to reasonable access to the land for maintenance and repair purposes. Anno., Correlative rights of dominant and servient owners in right of way for pipeline, 28 ALR2d 626, 630. We find on the record the trial court specified to defendants that were access to the sewer for maintenance purposes necessary defendants might seek a court order to that effect. The court observed that removal of any obstacles in proper maintenance or repair might be sought at that time. Though a more flexible response to this problem would have been both desirable and permissible under the original order of April 30, 1974, access was not precluded altogether. We do not find the court’s response unreasonable on its face and find no grounds for reversal or remand.
Having carefully reviewed defendants’ arguments and finding none persuasive, we sustain the trial court’s order requiring the parties to proceed with restoration. This Court’s stay order is hereby vacated and set aside. We retain no further jurisdiction.
Affirmed.
Quinn, P. J., did not participate.
"5. If Defendants use that portion of the present easement across Plaintiffs’ land from manhole 12 North, then a master will be appointed by the Court to view the premises from manhole 12 thence North prior to construction and determine what protective steps may be taken to conserve the environment.”
"1. The overriding need to achieve finality. This matter, which has been pending since 1970, should be brought to an immediate, conclusive determination. Litigation has caused delays in construction which have severely taxed the financial resources of this state and neighboring property owners. To dismiss plaintiffs’ suit could only cause further delay since other persons, not a party to the condemnation proceeding, have the right under the EPA to seek an injunction against the drain project as presently planned. Res judicata is designed to insure finality of litigation. In this case finality can be better achieved by not dismissing plaintiffs’ action.
"2. The prejudice, if any, to the defendants is minimal. The defendants will have an easement accomplishing the same objective as the original one and the trial court opined 'it is no more costly’.
"3. This action raises environmental issues of great significance which are of interest and concern to many. The impact on the environment resulting from the construction of the sewer across plaintiffs’ property as presently planned extends well beyond the boundaries of plaintiffs’ property. The trial judge found that the project would pollute, impair and destroy natural resources reaching from the lower Carrier Creek to the Grand River and into Lake Michigan.
"4. At the time of trial the EPA had only recently become law. It is not surprising that the plaintiffs, lacking an understanding that they might raise an EPA issue in a condemnation proceeding, did not do so.
"Our holding today is restricted to the unique facts of this case.” Eyde v State of Michigan, supra at 455-456.
"Beginning on the North-South 1/4 line of Section 22 at a point 410 feet South of the Center of Section 22 and running thence S 62° 09' 40" E 95 feet, thence N 68° 11' 20" E 118.5 feet, then N 88° 09' 40" E 102.7 feet, thence S 59° 04' E 129.0 feet, thence S 51° 41' 20" E 89.25 feet, thence S 26° 41' 40" E 117.7 feet, thence S 7° 39' 40" W 110.3 feet, thence S 28° 19' 20" W 457.65 feet, thence S 33° 02' W 226.75 feet, thence S 16° 38' 40" E 178.5 feet, thence S 26° 59' 20" E 269.0 feet to a point 350 feet East of the North-South 1/4 line, thence South parallel to said North-South 1/4 line 887.6 feet, more or less to the South line of Section 22 and a point of ending.” Stipulation for Amended Judgment, p 3.
The Supreme Court noted several specific reasons for reversing this Court and reinstating the trial court order of April 30, 1974. See note 2, supra.
"It is hereby STIPULATED AND AGREED that the aforementioned legal description be ordered by this Court to be the easement within which the Carrier Creek Interceptor Extension is to be constructed in accordance with the Judgment of the Ingham County Circuit Court dated April 30, 1974; that all the other terms and conditions of the Judgment of April 30, 1974, and continued herein, including but not limited to the fact that a master will need to be appointed by the Court.” Stipulation for Amended Judgment, p 3.
Defendants’ argument that plaintiffs would be compensated twice is without merit. Plaintiffs were given $6,000 for an easement which is defined as "a right which one person has to use the land of another for a specific purpose” St Cecilia Society v Universal Car & Service Co, 213 Mich 569, 576-577; 182 NW 161 (1921) (emphasis added). The money paid out in the condemnation proceeding was for the use of the land, not for the trees themselves. Moreover, the Environmental Protection Act action is one essentially for the benefit for the state and its inhabitants. Although the presence of the trees upon the easements may eventually inure to the benefit of plaintiff, such benefit should not be construed as compensation of any sort. | [
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Allen, J.
Was error committed when the trial court granted summary judgment in favor of defendant on a charge of furnishing alcoholic beverages to a minor in violation of MCLA 750.141a; MSA 28.336(1) where defendant, an adult homeowner, was present in her home while alcoholic beverages were being consumed by minors even though said beverages were brought to defendant’s home by persons other than defendant, and defendant did not purchase or give any of the beverages to any of the minors? If the statute was not violated, did defendant violate a common-law duty not knowingly to permit a minor to consume alcoholic beverages in defendant’s home? These questions of apparent first impression come to us on the following facts.
Following a high school football game on the evening of November 8, 1974, several young people gathered at the home of defendant Parrish where alcoholic beverages were served and consumed. Among the persons present to whom alcoholic beverages were served was Gary Bailey, a minor, who became intoxicated. While so intoxicated, Bailey left the defendant’s home, driving his car with Regina Christensen as a passenger. A short time later Bailey lost control of his car which went off the road striking a tree, causing severe injuries to Regina Christensen. An affidavit of defendant as well as the deposition of all witnesses conclusively showed that whatever beverages were consumed at defendant’s home were not furnished or served by defendant but were brought to her home by the young persons attending the gathering. The affidavit was not challenged and no counter-affidavit was filed.
Violation of a penal statute gives rise to a prima facie case of negligence. Zeni v Anderson, 397 Mich 117; 243 NW2d 270 (1976). In Thaut v Finley (On Rehearing), 50 Mich App 611; 213 NW2d 820 (1973), this Court concluded that it was negligence per se to violate the statute now before us, MCLA 750.141a; MSA 28.336(1). That case stands for the proposition that it is the violation of the statute which gives rise to the civil action. But by its terms, only a person who "knowingly gives or furnishes” alcoholic beverages violates the statute. Plaintiffs have failed to show that defendant was such a person. In all of the civil action cases relied upon by defendant, the person allegedly violating the statute had some control over or an active part in supplying a minor with alcohol. Lover v Sampson, 44 Mich App 173; 205 NW2d 69 (1972), People v Neumann, 85 Mich 98; 48 NW 290 (1891), People v Lumley, 189 Mich 613; 155 NW 486 (1915). Other cases holding a person liable for violating the statute or a similar statute have had the same element of control present. People v Driver, 174 Mich 214; 140 NW 515 (1913), Brockett v Kitchen Boyd Motor Co, 24 Cal App 3d 87; 100 Cal Rptr 752 (1972), Brattain v Herron, 159 Ind App 663; 309 NE2d 150 (1974). The need for this element is one of the reasons the Legislature included the word "knowingly” in the statute.
Since plaintiffs have not shown that defendant knowingly gave or furnished alcohol to a minor, they have not stated a cause of action upon which relief can be granted. Plaintiffs have shown little more than the fact that defendant was present in her own home while minors consumed alcoholic beverages furnished by someone else. As the above cases indicate, this does not constitute a violation of the statute. Summary judgment was therefore proper.
Plaintiffs’ amended bill of complaint asserts that defendant violated a common-law duty not knowingly to permit minors to consume alcoholic beverages in her home. According to plaintiffs a common-law duty exists which imposes upon an adult a duty not knowingly to permit others to serve or furnish intoxicants to minors even though, as here, the intoxicants are not supplied or served by the adult. Plaintiffs present no on-the-nose authority supporting such a duty. Although the Court in Lover v Sampson, supra, at 181, spoke in language that could be read to support plaintiffs’ position, later in the opinion, at 183, the Court stated that the statute was indispensable to the action. Attempts in other jurisdictions to attribute liability to persons who allow minors to be supplied with alcohol, even under circumstances where the "knowingly furnish” element is much clearer, have failed. See, for example, Anno: Liability of Person Furnishing, on Special Occasion, Intoxicating Liquor, for Negligent Acts of Intoxicated Minors Causing Injury to Plaintiff, 53 ALR3d 1285.
At oral argument it was said that the holding in Moning v Alfono, 400 Mich 425; 254 NW2d 759 (1977), is supportive of plaintiffs’ claim. In that case the manufacturer, wholesaler and retailer of a 10-cent slingshot were sued by plaintiff who, when 12 years old, lost the sight of one eye when struck by a pellet fired from the slingshot by his 11-year-old playmate. The trial judge directed a verdict for the defendants and the Court of Appeals affirmed. In a 3-2 decision the Supreme Court reversed, saying:
"We remand for a new trial because a manufacturer, wholesaler and retailer of a manufactured product owe a legal obligation of due care to a bystander affected by use of the product, and whether defendants in violation of that obligation created an unreasonable risk of harm in marketing slingshots directly to children is for a jury to decide, reasonable persons being of different minds.
"Whether it would be a violation of that obligation to market slingshots directly to children is not a question of duty, but of the specific standard of care: the reasonableness of the risk of harm thereby created.
"Negligence is conduct involving an unreasonable risk of harm.
"Slingshots pose a risk of harm. In manufacturing and marketing slingshots the defendant necessarily created such a risk.
"The meritorious issues are whether the risk so created was unreasonable because the slingshots were marketed directly to children, and whether this should be decided by the court or by the jury.” Moning v Aliono, supra, at 432-433.
Plaintiffs argue that if manufacturing and selling toy slingshots gives rise to a jury determination of whether the seller, wholesaler or retailer created an unreasonable risk of harm to children, so, too, it should be left for the jury to determine whether Kay Parrish’s conduct in the case before us created an unreasonable risk of harm to the plaintiff. Respectfully, we disagree. In Moning, the majority opinion assumed the existence of the duty of the manufacturer whereas, here, the basic question is the existence of the duty. Finally, and most importantly, the defendant supplied the slingshots whereas in the case before us Kay Parrish did not supply the intoxicants and was not present in the house when additional intoxicants were served or later when Gary Bailey left the house with Regina Christensen.
We do not go so far as to rule that under every set of circumstances a common-law duty by adults to minors might not exist. But we do hold that on the facts in this case there was no such duty and the trial court was correct in granting summary judgment. Our decision is limited to the facts in this case.
Affirmed, costs to defendant.
"A person, who knowingly gives or furnishes any alcoholic beverage to a person under the age of 18 years except upon authority of and pursuant to a prescription of a duly licensed physician, shall be guilty of a misdemeanor, and if the furnishing involved any consideration, the person shall be imprisoned for not more than 1 year or fined not more than $1,000.00 or both.” (Emphasis supplied.)
There is no transcript recorded in this case. The facts are all from affidavits and depositions.
Justices Ryan and Moody did not participate in the decision.
Defendant did not keep liquor or beer in the house nor did she know that an impromptu party would take place at her home. She worked as a waitress in a restaurant from midnight until 8 a.m., and left her home about 11:45 p.m., thinking that the young people were departing. After she left, more beer was purchased and brought to the home. | [
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Per Curiam.
Defendant Robert Wayne Dunlap was convicted by a jury of armed robbery, contrary to MCLA 750.529; MSA 28.797, and assault with intent to do great bodily harm less than murder, contrary to MCLA 750.84; MSA 28.279. Defendant first assigns as error the trial court’s denial of a defense motion to suppress evidence and statements.
This Court will not overturn a trial court’s ruling at a suppression hearing unless that ruling is found to be clearly erroneous. People v Triplett, 68 Mich App 531, 535; 243 NW2d 665 (1976), lv den, 397 Mich 842 (1976), People v Bunker, 22 Mich App 396, 404; 177 NW2d 644 (1970), People v Smith, 19 Mich App 359, 367; 172 NW2d 902 (1969), People v Stewart, 25 Mich App 204, 206; 181 NW2d 14 (1970), People v Terrell, 77 Mich App 676, 679; 259 NW2d 187 (1977). The suppression hearing in the instant case was addressed both to certain physical evidence which was seized from an automobile in which the defendant was riding, and certain statements made by the defendant and his companion, the driver of the automobile.
To justify a warrantless automobile search, there must be probable cause to believe that a felony has been or is being committed. People v Iverson, 34 Mich App 519; 191 NW2d 745 (1971), People v Strong; 77 Mich App 281, 284; 258 NW2d 205 (1977). In passing upon the reasonableness of the search, only those facts known to the officers at the time of the search may be considered; events subsequent to the seizure may not. People v White, 46 Mich App 195, 198; 207 NW2d 921 (1973).
In the instant case, the police officers involved made a routine stop of the vehicle in which the defendant was riding for a traffic violation. They discovered the defendant, a passenger in the back seat, with a severe gunshot wound to the leg. They arranged to have an ambulance meet them, and upon arriving at the rendezvous point proceeded to ask the pair what had happened. The driver first indicated that the defendant had a gun in the back seat. One officer asked the defendant what had happened and he stated that he shot himself accidentally. The officer then inquired where the gun was and the defendant told him. The officer seized the gun as well as a bag of money and checks and a knife from the glove compartment.
The circumstances justified the police officers’ belief that "criminal activity was afoot”, and they had probable cause, therefore, to conduct the search. People v LaGrange, 40 Mich App 342; 198 NW2d 736 (1972), People v Lillis, 64 Mich App 64; 235 NW2d 65 (1975), People v Parisi, 393 Mich 31; 222 NW2d 757 (1974), Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). Any statements made on the scene at that particular moment were not taken in violation of Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). Rather, the circumstances represented "a situation of an officer reacting naturally and spontaneously to the scene before him. It was a routine means of commencing an investigation and not an inquiry made pursuant to an already-launched investigation. The defendant had not as yet been placed under arrest; neither was he in foreign surroundings nor in a 'police-dominated atmosphere’ as stressed in Miranda.” People v Herman Jackson, 37 Mich App 664, 669; 195 NW2d 312 (1972). General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by the holding of Miranda. Miranda v Arizona, supra at 477-478. Therefore, both the statements taken at that time and the search and seizure of contraband was proper.
Further, the statement made by defendant while in an ambulance on the way to Ann Arbor, though the defendant was likely in custody at that time, was a volunteered statement and therefore not taken in violation of Miranda.
A more difficult situation is presented by defendant’s confession made to police officers in his hospital room some days after being arrested. Defendant had been at Ann Arbor Hospital for several days with 24-hour police guard at his door. His wound was quite serious and he was receiving shots of morphine and phenergan for several days. Late one night, after the defendant had been receiving these shots for approximately four days, an officer came in to speak with the defendant at the defendant’s request. He proceeded to take a full confession from the defendant and also had the defendant sign a waiver card. The police officer who took the statement testified that defendant told him he wanted to confess so that his brother-in-law, the driver of the car, could get out of jail. The defendant asserts that the amount of medication he was receiving as well as the pain and suffering of the wound preclude the possibility that he exercised a knowing and intelligent waiver of his rights. The police officer testified on the contrary that the defendant was in full control of his faculties and voluntarily made the statements. That the defendant was narcotized does not per se render him incapable of a knowing waiver. People v Townsend, 11 Ill 2d 30; 141 NE2d 729 (1957). Rather the totality of the circumstances determine the result. Glenn v Missouri, 341 F Supp 1055 (ED Mo, 1972), Beecher v Alabama, 408 US 234; 92 S Ct 2282; 33 L Ed 2d 317 (1972). The defendant testified that he had no memory of making any confession of any sort. He also testified that he did remember signing something but that he was not aware of its contents.
The trial court determined that the waiver was in fact voluntary, knowing and intelligent. Under the circumstances we cannot say that such finding was clearly erroneous. People v Triplett, supra at 535, People v Stewart, supra at 206.
Defendant next asserts that the dismissal of charges against him while he was recuperating in the hospital denied him due process. When defendant had recovered from his surgery he was rearrested, recharged and rearraigned. We find no violation of due process here. People v Curtis, 389 Mich 698, 706; 209 NW2d 243 (1973), People v Clark, 43 Mich App 476, 480; 204 NW2d 332 (1972), People v McCartney, 72 Mich App 580, 585; 250 NW2d 135 (1976).
Affirmed. | [
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] |
D. E. Holbrook, Jr., P. J.
Defendant, defendant’s wife, and the plaintiffs (the parents of defendant’s wife) entered into a limited partnership agreement for farming operations in June, 1974. In November, 1974, the parties dissolved the partnership and at the same time plaintiffs sold the farm land and some of the farm equipment to defendant and his wife. The primary documents relating to the equipment sale were a bill of sale, a security agreement, a financing statement and a bulk sale affidavit. These documents were all apparently prepared by plaintiffs’ attorney.
In October, 1975, defendant’s wife instituted a suit for divorce. Subsequently a number of disputes arose between plaintiffs and defendant but are only tangential to the specific issues on appeal.
The instant appeal arises from the trial court’s ruling after a show-cause hearing on plaintiffs’ action for claim and delivery of certain equipment not covered by the bill of sale and security agreement. Plaintiffs contended the omitted items were never intended to be sold to defendant and filed their action for claim and delivery under GCR 1963, 757. Defendant answered, contending several items were mistakenly omitted by plaintiffs’ attorney when he drew up the sale documents.
A show-cause hearing was set pursuant to Administrative Order 1973-3, 389 Mich xliv (1973), which amends GCR 1963, 757.
".7 Hearing on Order to Show Cause. If the defendant appears in response to the order to show cause the court shall thereupon hear the same as a motion. If the court determines that the defendant has no meritorious defense to the action the court is empowered to enter an order for delivery of any or all of the property claimed in the complaint to the plaintiff in conformity with GCR 1963, 757.2-757.8. If the court determines that there may be a meritorious defense to the action the case shall thereupon be set for trial in conformity with the rules of the court in which the action is pending.” (Emphasis supplied.)
Both the notice of the hearing and the trial judge’s initial remarks indicate that the purpose of the hearing was to determine whether defendant had any defenses to the claim and delivery action. Several witnesses were called and numerous exhibits were entered into evidence. Without recounting what took place at the hearing, it is fair to say that defendant introduced at least some evidence that some items, especially a hotly disputed Oliver tractor, were intended to be sold to defendant but were mistakenly omitted from the sales and security agreements. As an indication of an omission, defendant points to the fact that the Oliver tractor was specified in the financing statement but not the security agreement.
After hearing the positions of the parties the trial judge verbally ruled from the bench that since the items, in particular the Oliver tractor, were not covered in the bill of sale or security agreement, defendant was not entitled to them and that defendant had not shown cause why the items should not be turned over to plaintiffs. The judge signed an order which stated defendant had shown no meritorious defense and that the pieces of equipment be returned to plaintiffs.
Defendant now appeals and argues that the trial court incorrectly adjudicated the issues on the merits rather than merely deciding whether there "may be” a meritorious defense. Defendant contends that all he was required to do was present some evidence that he had a "mistake” defense to the claim and delivery action in order for the court to set the matter for trial. We agree with defendant.
The only case to deal with Administrative Order 1973-3 is Detroit & Northern Savings & Loan v Woodworth, 54 Mich App 517; 221 NW2d 190 (1974). The issue faced by the Detroit & Northern panel is similar to the one which faces us now— the scope of the show-cause hearing and the extent to which a defendant must establish a meritorious defense in order for the matter to go to trial.
As noted by Judge Allen in Detroit & Northern, the language of the administrative order provides few guidelines as to what a defendant must show and how a trial judge is to decide whether there is no meritorious defense or whether there may be a meritorious defense. As did the Court in Detroit & Northern, we look to text writers Honigman and Hawkins:
"A problem may arise as to what standard the court is to apply in determining whether or not 'there may be a meritorious defense to the action.’ Since the time allowed to the defendant is rather short, he should not be required to marshall all of the evidence he would present at a plenary hearing of the case; any substantial indication on his part that he has evidence to show [a defense] * * * should constitute an acceptable showing that there 'may be’ a meritorious defense.” 5 Honigman & Hawkins, Michigan Court Rules Annotated, 1977 Honigman & Martin, Supp, p 50. See Detroit & Northern, supra, at 521.
The Supreme Court’s use of the specific language, "may be a meritorious defense to the action the case shall be set for trial”, indicates the purpose of the hearing is to ascertain whether the defendant has legal theory which, if proven at trial, would be a defense to plaintiffs’ action. The hearing is not a substitute for a trial and had the Supreme Court intended the show-cause hearing to be a full evidentiary hearing it would have spelled out that intention more clearly in the administrative order. A defendant need not convince the judge at the hearing that he, the defendant, will prevail on the basis of the defense after trial. The express use of the term "may” indicates trial judges should evaluate potential defenses liberally and not require defendants to present all their supporting evidence at the show-cause hearing.
Only when a defendant does not appear at the hearing or when a defendant asserts a defense which, even if proven, does not constitute a defense to plaintiffs action, should the trial judge grant immediate possession to plaintiff.
It is unclear what standard the trial judge used in finding the defendant had presented no meritorious defense. If he concluded that "mistake” could never, as a matter of law, constitute a valid defense under the Uniform Commercial Code or that parol evidence could not be introduced to show mistake, the trial judge erred. According to MCLA 440.1103; MSA 19.1103, the code is supplemented by pre-code Michigan law regarding mistake. See General Equipment Manufacturers v Bible Press, Inc, 10 Mich App 676; 160 NW2d 370 (1968), lv den, 381 Mich 770 (1968). Further, parol evidence may be used to show a mistake. See Steinheimer’s Practice Commentary to MCLA 440.2202; MSA 19.2202 in 21 Michigan Compiled Laws Annotated at 146 (indicating the code does not change Michi gan law allowing parol evidence to show mistake, Stoddard Manufacturing Co v Miller, 107 Mich 51; 64 NW 948 [1895]). Goodwin, Inc v Orson E Coe Pontiac, Inc, 392 Mich 195, 204; 220 NW2d 664 (1974). Therefore under either Article 2 or Article 9 of the code, "mistake” may be a legally sufficient defense to plaintiffs’ action.
We express no opinion as to the validity or merit of defendant’s mistake theory, but conclude that defendant has offered sufficient evidence of a possible mistake so that it may be a meritorious defense.
We set aside the trial court order and remand to the trial court to schedule the matter for trial. Since the trial judge did not set the matter for trial, we need not address defendant’s other issues on appeal regarding his demand for a jury trial and the posting of a bond. These matters are within the province of the trial court on remand.
Reversed and remanded.
"Unless displaced by the particular provisions of this act, the principles of law and equity, including * * * the law relative to * * * mistake * * * shall supplement its provisions.”
MCLA 440.2201; MSA 19.2201 through MCLA 440.2725; MSA 19.2725.
MCLA 440.9101; MSA 19.9101 through MCLA 440.9507; MSA 19.9507. | [
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M. F. Cavanagh, J.
Plaintiff sued for reformation of a collective bargaining agreement negotiated under the public employment relations act. MCLA 423.201 et seq.; MSA 17.455(1) et seq. At the close of plaintiffs proofs the trial judge, sitting without a jury, granted defendant’s motion for involuntary dismissal. GCR 1963, 504.2. The court subsequently entered orders dismissing plaintiffs claim and granting defendant judgment on its counterclaim for specific performance of the collective bargaining agreement. Plaintiff takes this appeal by right.
On April 12th, 1972, at the last formal session for negotiation of the collective bargaining agreement, the negotiators for the two sides agreed on a formula for a cost of living allowance (COLA). The collective bargaining agreement was subsequently drafted in final form, and executed by agents of the employer and the designated representative.
The agreement as negotiated at the bargaining table anticipated periodic readjustments in wages to reflect increases in the cost of living. The first adjustment was to be made 12 months into the agreement, with readjustments every 6 months thereafter. Increases were to be pegged to changes in the Detroit Consumer Price Index. The formula for translating increases on the index to increases in pay was simple, and designed to track closely the actual increase in the cost of living. At the first adjustment period (12 months) the increase in the index (measured in points) is calculated. This simply required subtracting the index on the date the agreement was executed from the index on the date of adjustment. From the remainder is subtracted an agreed upon "absorption factor” of 2.5 points. Assuming that the index increased more than 2.5 points, this left an adjusted index in crease. For each point of such increase, the employee’s wages would be increased by one percent.
At the next adjustment period (18 months), a new COLA would be computed. The index increase since the last adjustment is calculated. Then an absorption factor (now 1.25) is subtracted. The remainder, in percentage points, is the employee’s COLA. This percentage increase is multiplied times current wages to yield the employee’s raise, in dollars.
This process was to be repeated at six month intervals for the duration of the contract. This formula could be summarized in the following terms: index increase since last adjustment, minus absorption factor, equals COLA, in percentage points, multiplied times current wages, equals raise, in dollars.
The employer’s chief negotiator drafted the collective bargaining agreement’s COLA provision. Several months after the contract was executed, he discovered that the provision was not functioning as he had intended, and was instead producing cost of living "allowances” out of all proportion to increases in the Consumer Price Index. Careful analysis of the language of the contract’s COLA provision demonstrates why.
Under the language of the collective bargaining agreement, the first COLA is calculated as provided by the bargaining table formula. However’ the process differs at the second adjustment, and at each adjustment thereafter. Under the collective bargaining agreement formula, the index increase is figured by subtracting the index at the date of execution from the index at the date of readjustment. Then the absorption factor for this adjustment period and for each previous period is subtracted. The remainder, in percentage points, is the employee’s COLA. This allowance is multiplied times current wages to give the raise, as under the previous formula. This process is repeated every six months thereafter. The contract formula may be summarized as follows: new index, minus original index, minus total of all absorption factors, equals COLA, in percentage points, multiplied times current wages, equals raise, in dollars.
The reader will observe that the contract formula results in a compounding of cost of living increases. This is not due solely to the method of calculating the index increase. There is nothing inherently misguided about going back to the original index, and calculating the overall increase (less overall absorption factors) in order to arrive at the current COLA, in percentage points. The difficulty arises when this overall increase is multiplied times current wages. Those wages represent the sum of the base wage plus all previous COLAs, in dollars. Thus, current wages already reflect part of the overall increase in the cost of living. By readjusting current wages on the basis of the total increase, since the date of execution, the previous COLAs built into those wages are compounded.
The difference in the outcomes under the two formulae is striking. As applied to the index increases experienced during the life of this collective bargaining agreement, they yield the following disparate results:
COLLECTIVE BARGAINING
NEGOTIATED COLA AGREEMENT COLA
12 months 2.30% 2.30%
18 months 5.85% 8.15%
24 months 5.75% 13.90%
30 months 5.95% 19.85%
Soon after the city’s negotiator discovered his error he contacted officials of the Police Officers Association and the Lieutenants and Sergeants Association, whose collective bargaining agreement was negotiated at the same time and contained an identical provision. The Lieutenants and Sergeants Association voluntarily agreed to amend its contract. However, the city’s negotiator was unable to reach agreement with the Police Officers Association, which indicated that it would pursue a grievance to secure the benefits of the collective bargaining agreement’s COLA. Plaintiff responded with this suit for its reformation.
There was no dispute at trial concerning the meaning of the collective bargaining agreement’s COLA. It was not alleged that the language was ambiguous, and the lower court was not called upon to construe the agreement. Plaintiff sought reformation on the ground of mutual mistake. Success in this action requires that the parties to an instrument execute it in the mutually mistaken belief that its terms are those of a valid prior agreement. See Scott v Grow, 301 Mich 226, 239-240; 3 NW2d 254; 258 (1942), 66 Am Jur 2d, Reformation of Instruments, § 19, pp 544-545, 76 CJS, Reformation of Instruments, § 28, pp 361-363.
Plaintiff’s case consisted of evidence tending to show the terms of the agreement reached at the bargaining table, and the negotiators’ understanding of the agreement. Among the proofs was the testimony of one Mr. Nussbaum, attorney for the Police Officers Association and their chief spokesman at the negotiations. Mr. Nussbaum corroborated the plaintiff’s version of the agreement reached at the bargaining table, and testified that he did not recognize the stacking or compounding effect of the contract formula until it was called to his attention by the city’s negotiator, approximately 20 months after the agreement was executed.
The trial court dismissed plaintiffs cause of action at the close of its proofs. The court found that rank and file ratification of the contract was a prerequisite to its validity, that there had been a ratification vote, and that the valid prior agreement required for reformation did not come into existence until this vote took place. Therefore, reasoned the court, it was only the COLA provision as presented to the union membership to which the collective bargaining agreement could be reformed. Mr. Nussbaum, as chief negotiator and attorney for the Police Officers Association, had appeared at what the court found was the ratification meeting. However, when plaintiff asked Mr. Nussbaum what explanation of the COLA provision had been given the association members, the court sustained an objection on the basis of the attorney-client privilege. The court subsequently found that there was no evidence as to what the union members ratified. Therefore, the court concluded, plaintiff had failed to show the substance of the prior agreement, and hence had failed to show that defendant mistakenly believed that the instrument executed conformed to it.
Plaintiff raises several issues on appeal. We find the controlling questions to be whether a failure to establish the terms of the agreement as presented to the individual employees at the time of the alleged ratification vote would warrant dismissal of plaintiffs claim, and, if so, whether plaintiff failed to make a prima facie showing on this point. The underlying issue is whether Mr. Nussbaum, the chief negotiator, had the authority required to conclude a "valid prior agreement”, without ratification by the union members.
At the outset we note that defendant withdrew its allegations that the COLA provision, as it eventually appeared in the executed contract, was read to and approved by the rank and file, and that they were told that this would become the collective bargaining agreement. Defendant also withdrew its allegation that this written agreement, as opposed to any oral agreement, was ratified by the union membership. Defendant did not withdraw its allegation that plaintiff knew that any agreement was conditioned on ratification by the employees. However, plaintiff denied this allegation. It was therefore an issue at trial whether ratification was required.
We search the record in vain for credible evidence that ratification was indeed required. Nothing in the collective bargaining agreement so provides. Nor does defendant’s constitution (including by-laws) require membership ratification of collective bargaining agreements. Defendant’s president did testify that in his opinion ratification was necessary. However, he admitted that his opinion was based entirely upon a provision of the Association’s constitution which plainly required ratification only for amendments to that constitution.
Mr. Nussbaum, the union’s negotiator, testified that he had told the city’s negotiator that Association approval was required for all agreements reached at the bargaining table. However, Mr. Nussbaum admitted uncertainty as to whether he had said that it was essential to get ratiñcation, as opposed, for example, to final approval by union officers. Mr. Nussbaum did not testify that ratification was mandatory, nor did he state the source of his opinion that agreements were conditioned upon union approval.
The only other evidence arguably on point was Mr. Nussbaum’s testimony that he was informed on the morning after a meeting held on April 24, 1972, at which he had addressed the employees on the substance of the April 12th agreement, that there had been a ratification vote. The statement was obviously hearsay, and was accompanied by Mr. Nussbaum’s admission that he did not know for a fact if a ratification meeting took place on that date. Moreover, the mere fact that a ratification vote was held would not imply that such was required to give force to the union’s agreement. In sum, we regard this isolated hearsay statement as an insufficient basis for concluding that a ratification vote was required.
The public employment relations act (PERA), under which this agreement was made, accords broad authority to the designated representative. That act provides, in pertinent parts of sections 11 and 15, respectively, as follows:
"Representatives designated or selected for purposes of collective bargaining by the majority of the public employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the public employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment or other conditions of employment, and shall be so recognized by the public employer.” MCLA 423.211; MSA 17.455(11).
"A public employer shall bargain collectively with the representatives of its employees as defined in section 11 and is authorized to make and enter into collective bargaining agreements with such representatives.” MCLA 423.215; MSA 17.455(15).
The Michigan Supreme Court has stated that Federal cases decided under the National Labor Relations Act may be looked to for guidance in construing comparable provisions of the PERA. Michigan Employment Relations Commission v Reeths-Puffer School Dist, 391 Mich 253, 260; 215 NW2d 672, 675 (1975). In those cases cited to this Court we find support for a broad construction of the designated representative’s authority. See, e.g., Ford Motor Co v Huffman, 345 US 330, 336-339; 73 S Ct 681, 685-687; 97 L Ed 1048, 1057-1058 (1953), National Labor Relations Board v Darlington Veneer Co, 236 F2d 85, 88-89 (CA 4, 1956), Crenshaw v Allied Chemical Corp, 387 F Supp 594, 598-599 (ED Va, 1975). In Darlington Veneer, supra, the court, construing the section of the Labor Management Relations Act which parallels PERA § 11 (quoted supra), stated:
"The statute [29 USCA § 159] contemplates the making of agreements by representatives of the employees, not by the employees themselves, giving 'statutory approval to the philosophy of bargaining as worked out in the^labor movement in the United States.’ ” 236 F2d at 89. (Footnote and citations omitted.)
Crenshaw, supra, also expansively defines the designated representative’s authority:
"Congress has given unions wide authority and great discretion to reconcile the competing interests of the employees whom they represent so that they might speak with one voice when they confront management at the bargaining table. * * * Congressional validation of collective action, however, necessarily involves extinguishing many of the contract and economic rights belonging to union members and, instead, vesting the power to act in their behalf with their chosen representative, the union.” 387 F Supp at 598-599.
Reservation of a right of ratification may be typical, as the trial court here seemed to assume. See Lear Siegler, Inc v International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), 419 F2d 534, 535 (CA 6, 1969). However, we find nothing in the text of the PERA which suggests that it is required. We do not doubt that defendant could have reserved the right of ratification by agreement with plaintiff. See Wald v Nassau Chapter Civil Service Employees Ass’n, Inc, 72 Misc 2d 723, 724; 340 NYS2d 451, 453 (1973). However, "no such agreement appears of record. Thus, neither statute, nor contract, nor defendant’s constitution and by-laws support its allegation that ratification was required. Nor is there any testimony that the membership had otherwise limited its bargaining representative’s power. Cf. Houchens Market of Elizabethtown, Inc v National Labor Relations Board, 375 F2d 208, 212 (CA 6, 1967).
On the other hand, there was a substantial basis for concluding that the agreement was not conditioned on ratification by the employees. We find the PERA’s broad grant of authority to the representative very significant. Moreover, there was testimony here that the POA’s agents undertook to make changes in the pension agreement and longevity pay provisions of the agreement after the purported ratification meeting without ever going back to the rank and file for further ratification. Certainly this evidence supports an inference that the union was free to close a binding bargain without first getting member approval. We conclude that on the record before the lower court it was error to find that ratification was required.
Although this conclusion is sufficient to resolve the issue before us, we add some additional observations to guide the lower court on remand.
Even if ratification is not required, it is still essential to plaintiff’s case to establish the authority of Mr. Nussbaum, or of Mr. Nussbaum and the other union negotiators, to bind the union by agreement reached at the bargaining table. Such authority is strongly suggested by Mr. Nussbaum’s position as chief negotiator and union attorney, considered with regard to general principles of agency law. See 3 Am Jur 2d, Agency, § 84, p 488; 7 Am Jur 2d, Attorneys at Law, § 100, p 111. The suggestion of such authority is further strengthened by Mr. Nussbaum’s initiatives to alter the agreement with respect to the pension and longevity pay provisions. From the record before us it appears that these actions were undertaken without consultation with other union figures. On the other hand, Mr. Nussbaum’s statement that union approval was required cuts against a finding of such authority. But see National Labor Relations Board v Industrial Wire Products Corp, 455 F2d 673, 678-679 (CA 9, 1972).
Defendant’s motion for involuntary dismissal was made without prejudice to defendant’s right to offer evidence. GCR 1963, 504.2. On remand defendant may wish to present evidence that a ratification meeting was required and did occur.
However, on the record as it presently exists, even if we were convinced that ratification was indeed required and that a ratification vote occurred, it would appear to us that plaintiff had carried its burden of showing that the agreement as ratified was that hammered out at the April 12th bargaining session. There was testimony before the lower court tending to establish the following.
The April 24th, 1972, meeting, at which the ratification vote supposedly took place, was attended by Mr. Nussbaum. It was he, Mr. Nussbaum, who explained the agreement to the members. The collective bargaining agreement’s COLA provision did not take final form until after the purported ratification meeting. Mr. Nussbaum, as previously noted, testified that he thought, nearly two years into the contract, that its COLA provision comported with the April 12th agreement. Thus, if the union members were given to understand anything of this agreement, we must infer that it was the same understanding as was shared by the city’s negotiator and Mr. Nussbaum, i.e., the substance of the April 12th agreement reached between the negotiators.
Defendant may choose to controvert this evidence by producing proof that the agreement as presented to the union members on April 24th was in accord with the COLA incorporated in the executed collective bargaining agreement. However, presentation of such evidence will waive the attorney-client privilege protecting communications to the membership regarding the substance of this agreement. Defendant shall not be allowed to prevail by insisting that it made an agreement with plaintiff other than that reached at the bargaining table, but that the terms of that agreement are privileged.
Reversed. No costs.
Mr. Nussbaum testified that, when first presented with the formula, he had some misgivings about it. However, his subsequent testimony made clear that those misgivings were not based on any insight into the formula’s compounding effect:
"Q [Mr. Donaldson, Attorney for Plaintiffj Do you mean to go on the record in this Court to the effect that you recognized that the formula contained a flaw or error or a doubling up effect and that you withheld that information from Mr. Brennan at that time.
"A Mr. Donaldson, I’m a hard bargainer but I’m no thief. If I anticipated this kind of effect, that contract would never had [sic] been signed, if I could help it.
"Q You didn’t recognize the flaw in the formula at that point in time, did you?
"A No, I knew from—
"Q (Interposing) You wouldn’t have taken advantage of it had you recognized it, would you?
"THE WITNESS: No, I wouldn’t.
"Q (By Mr. Donaldson) Is it correct to state that the first time you recognized the flaw or the doubling up effect was after it was called to your attention by Mr. Brennan on or about March 13th, 1974?
"A Yes.” | [
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J. H. Gillis, P. J.
Plaintiffs are licensed dental hygienists who are regulated by defendant, the Michigan State Board of Dentistry. Defendant is charged with the exclusive power to supervise, license and examine the overall practice of dentistry in the State of Michigan pursuant to MCLA 338.201 et seq.; MSA 14.629(1) et seq.
On July 8, 1976, plaintiffs commenced an action in Oakland County Circuit Court seeking declaratory and injunctive relief under GCR 1963, 521, to prevent the defendant from supervising, licensing and examining dental hygienists.
Count I of plaintiffs’ complaint contends that dental hygiene is a separate profession within the meaning of the Michigan Constitution, and, therefore, dental hygienists should be regulated by their own board, a majority of which should be composed of dental hygienists. Const 1963, art 5, § 5.
Count II of plaintiffs’ complaint contends that if "dental hygiene” is not a separate profession within the meaning of art 5, § 5, supra, and dental hygienists are subject to the control of defendant, they are denied equal protection under the law pursuant to Const 1963, art 1, § 2, since dental hygienists are prohibited by the dental act from serving on the Board of Dentistry. MCLA 338.201 et seq.; MSA 14.629(1) et seq.
Before trial, defendant filed a motion for accelerated judgment under GCR 1963, 116.1(2). Plaintiffs subsequently filed a motion for summary judgment pursuant to GCR 1963, 117.2(2). Both of these motions were denied.
The Michigan Dental Association’s motion to intervene pursuant to GCR 1963, 209.1(3) was granted.
Plaintiffs again filed a motion for summary judgment which was granted on March 7, 1977. The trial judge concluded in part that:
"II. Dental hygienists are professional persons in that they practice a profession as that term is used in Article V, § 5 of the Constitution of the State of Michigan. MCLA 388.201; MCLA 338.209; OAG, 1975, No. 4899 (October 23, 1975), Kambas v St. Joseph Hospital, 33 Mich App 127, 139-140, footnote 24 [189 NW2d 879 (1971)], (Levin, J., dissenting), 42 USC § 295h-4(1)-(A1).
"III. Dental Hygienists, as practitioners of a profession within the meaning of Article V, § 5, are either members of a profession which includes both dentists and dental hygienists, or they are members of an independent profession. If they are considered members of an independent profession, then MCLA 338.201 is unconstitutional as a violation of Article V, § 5 of the Constitution of the State of Michigan. See Nemer v Board of Registration for Architects, 20 Mich App 429 [174 NW2d 293] (1969).
"IV. If Dental Hygienists are considered members of the same profession as dentists, then MCLA 338.201 is unconstitutional in that it denies dental hygienists the equal protection of the law. Mich Const 1963, art 1, § 2; US Const, Am XIV, § 1. This status exists under either the 'rational basis’ test or the 'substantial relation to the object test’. Manistee Bank v McGowan, 394 Mich 655 [232 NW2d 636] (1975).
"V. The Court having determined that MCLA 338.201 is unconstitutional, under either result, it is not necessary to determine factually whether dental hygiene is or is not an independent profession, and no such finding is made. The Court does not wish to circumscribe the legislative options of the Legislature at this time by directing that the only possible action is the creation of an independent board of dental hygiene, although that would of course be constitutionally proper.”
From this order, all parties appeal as a matter of right.
I
Defendant first contends that the trial court erred in failing to grant its first motion for accelerated judgment under GCR 1963, 116.1(2). The motion alleged that the plaintiffs were seeking quo warranto relief against a state agency, therefore, the trial court lacked jurisdiction to entertain the suit since such actions should be commenced in the Court of Appeals pursuant to GCR 1963, 715.1(1). We disagree.
GCR 1963, 715.1(1) concludes that:
"All actions for quo warranto against any person who usurps, intrudes into, or unlawfully holds or exercises any state office, and against any state officer who does or suffers any act which, by the provisions of law, works a forfeiture of his office, shall be commenced in the Court of Appeals.”
Plaintiffs in the instant matter do not seek to oust from public office any member of the State Board of Dentistry, nor do they seek the dissolution of the dental board. Plaintiffs seek a much broader form of relief by challenging the constitutionality of the statute which enables the dental board to regulate dental hygienists in this state. This Court believes that quo warranto questions involving state offices should be limited to considerations of who rightly occupies the office and the proper use of the office. The constitutionality of the statute which creates the office or the constitutionality of statutes which the office is supposed to enforce present separate and broader questions that may be adjudicated in the circuit courts of this state. Williams v Lansing Board of Education, 69 Mich App 654; 245 NW2d 365 (1976), Michigan Society of Ophthalmic Dispensers v State Board of Examiners in Optometry, 58 Mich App 209; 227 NW2d 253 (1975), Lord v Genesee Circuit Judge, 51 Mich App 10; 214 NW2d 321 (1973).
Accordingly, we rule that the trial judge properly denied defendant’s original motion for accelerated judgment in that the trial court possessed proper jurisdiction to entertain the suit.
II
Defendant next contends that the trial court erred in failing to grant its motion for summary judgment pursuant to GCR 1963, 117.2(1), which concludes that the moving party is entitled to a judgment in his favor when "the opposing party has failed to state a claim upon which relief can be granted”.
A review of the lower court record reveals that the trial court denied the defendant’s motion because it found a genuine issue as to a material fact. The issue of whether or not the plaintiffs had stated a cause of action upon which relief could be granted under GCR 1963, 117.2(1), was not addressed by the court. In spite of the fact that the trial court failed to address the issue raised by the defendant’s motion, we conclude that its ultimate ruling was not erroneous.
In order to grant a motion grounded on GCR 1963, 117.2(1), the nonmoving party’s claim, based upon the pleadings, must be so clearly unenforceable as a matter of law that no factual development could possibly justify the nonmoving party’s right to recover. Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426, 430; 202 NW2d 577 (1972), Cooke Contracting Co v Department of State Highways #2, 55 Mich App 479; 223 NW2d 15 (1974).
A review of the pleadings and depositions filed in the instant matter reveal sufficient allegations upon which relief could be granted. We, therefore, conclude that defendant’s motion for summary judgment was properly denied.
Ill
Defendant further claims that the trial court erred in granting the plaintiffs’ motion for summary judgment under GCR 1963, 117.2(3). Defendant alleges that there is a question of fact as to whether or not dental hygienists are professional persons.
GCR 1963, 117.2(3) entitles the moving party to judgment in his favor as a matter of law when "except as to the amount of damages there is no genuine issue as to any material fact”.
A careful review of the pleadings and depositions in the case at bar reveals that there is a genuine issue as to a material fact in regards to whether or not dental hygienists are professional persons. In fact, the trial judge reached that very conclusion in denying the plaintiffs’ original motion for summary judgment.
Accordingly, we rule that the trial judge erred in granting the plaintiffs’ second motion for summary judgment under OCR 1963, 117.2(3).
It should be noted that the order entered by the trial court concluded that dental hygienists are "either members of a profession which includes both dentists and dental hygienists, or they are members of an independent profession”. Such a conclusion violates the clear intent of the Michigan Legislature.
The duties performed by dental hygienists clearly fall within the perimeters of the practice of dentistry as evidenced by MCLA 338.212; MSA 14.629(12) and MCLA 338.209a; MSA 14.629(9a). Dental hygienists may not perform their duties unless they work under the direction and supervision of a licensed dentist. MCLA 338.209a; MSA 14.629(9a).
Hence, we rule, as a matter of law, that the practice of dental hygiene cannot be classified as a profession, separate and distinct from the practice of dentistry. However, this ruling does not preclude the lower court from determining that dental hygienists are professional persons within the practice of dentistry.
IV
One final issue merits discussion by this Court. The trial court’s order concluded that dental hygienists were either members of a profession, consisting of both dentists and dental hygienists, or members of an independent profession. Based upon this determination, the court declared MCLA 338.201; MSA 14.629(1) unconstitutional under either alternative:
"If they are considered members of an independent profession, then MCLA 338.201 is unconstitutional as a violation of Article V, § 5 of the Constitution of the State of Michigan. See Nemer v Board of Registration for Architects, 20 Mich App 429 (1969).
"IV. If Dental Hygienists are considered members of the same profession as dentists, then MCLA 338.201 is unconstitutional in that it denies dental hygienists the equal protection of the law. Mich Const 1963, art 1, § 2; US Const, Am XIV, § 1. This status exists under either the 'rational basis’ test or the 'substantial relation to the object test’. Manistee Bank v McGowan, 394 Mich 655 (1975).”
Having ruled, as a matter of law, that dental hygienists are not members of an independent profession, we find no violation of article 5, § 5 of the Michigan Constitution.
However, if upon remand the finder of fact determines that dental hygienists are professional persons within the overall practice of dentistry, the constitutionality of MCLA 338.201; MSA 14.629(1) will again be at issue in regards to whether or not it denies dental hygienists equal protection under the law.
MCLA 338.201; MSA 14.629(1) provides in relevant part:
"(1) The practice of dentistry shall be supervised by the state board of dentistry. The board shall consist of:
"(a) Seven dentists, each of whom shall have been graduated from a dental school approved by the board, shall have practiced his profession in this state for not less than 5 years, shall have been a resident of this state for not less than 5 years, and 2 of whom shall be residents of the Upper Peninsula.
"(b) One member of the board shall be a person who is not and never was a member of the profession or occupation being licensed or regulated or the spouse of a member and who does not have and never has had a material, financial interest in either the providing of the professional services being licensed or regulated, or an activity directly related to the profession or occupation being licensed or regulated.”
The test to be used in determining whether or not MCLA 338.201; MSA 14.629(1) denies dental hygienists equal protection under the law is set forth in Manistee Bank & Trust Co v McGowan, 394 Mich 655, 668-672; 232 NW2d 636 (1975):
"In my judgment, at least where the challenged statute carves out a discrete exception to a general rule and the statutory exception is no longer experimental, the substantial-relation-to-the-object test should be applied.” 394 Mich at 671.
In order to apply the test, we must first determine the purpose of the legislation.
The Michigan Legislature wishes to assure a coordinated approach to the delivery of high quality dental care to the residents of this state. This object can best be attained by a regulatory board composed of persons qualified by their education and training to regulate the entire practice of dentistry. Dentists receive much more training than dental hygienists. Hence, dentists are in a much better position to regulate the overall practice of dentistry and assure high quality dental care. The Michigan Legislature, in order to reach its goal of high quality dental care, has concluded in their wisdom that the best trained group within the practice of dentistry should regulate the profession. This Court will not dispute their wisdom.
Plaintiffs further argue that even though dental hygienists receive less training than dentists they should be allowed to sit on the dental board. Plaintiffs base this contention on the fact that a lay person, with no training in the field of dentistry, is allowed to sit on the dental board.
The Legislature of this state placed a lay person on the dental board to insure unbiased input from sources outside the practice of dentistry. Such a goal is desirable in that it allows the other members of the dental board to keep abreast of public opinion in regards to the dental profession.
To reach this objective, the statute specifically states that the lay person have no personal or financial contact with the dentistry profession. To allow a dental hygienist to assume the lay person’s seat on the dental board would violate the intent of the legislation.
Dental hygienists are represented on the dental board by their employers, licensed dentists. Such a practice is not uncommon. Other suboccupational groups within a profession are licensed and examined by a board which is not composed of members of the suboccupational group.
Accordingly, we rule that if dental hygienists are determined to be professional persons within the practice of dentistry, they are not denied equal protection under the law by MCLA 338.201; MSA 14.629(1).
The other issues raised on appeal do not warrant discussion at this time. We do, however, refer the trial judge to the case of Monroe v Pape, 365 US 167, 192; 81 S Ct 473, 486; 5 L Ed 2d 492, 507 (1961), which is dispositive of the issue of whether or not the defendant, a state administrative agency, is a person under 42 USCA 1983, and therefore capable of violating the statute.
The trial judge’s order is reversed and the case is remanded for proceedings consistent with this opinion. We retain no further jurisdiction. No costs, a public question being involved.
See The Veterinary Practice Act, MCLA 287.451 et seq.; MSA 12.434(1) et seq., the pharmacy act, MCLA 338.1101 et seq.; MSA 14.757(1) et seq., the plumbing act, MCLA 338.901 et seq.; MSA 14.451 et seq. | [
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Bronson, J.
The issue in this case is whether plaintiff can obtain review of defendant Michigan Department of Public Health’s (Public Health) certification to the Department of Housing and Urban Development (HUD) that there existed no need for the nursing home plaintiff planned to construct.
Plaintiff planned to build a nursing home in Southfield. After purchasing land, it attempted to arrange financing for the construction. In the course of arranging financing, plaintiff applied to HUD for FHA mortgage insurance. HUD responded that plaintiff had to submit a certificate of need for the nursing home from Public Health to obtain the mortgage insurance. Public Health then certified to HUD that there was no need for nursing home beds in the area in which plaintiff planned to build, based on its state plan for health care facilities construction and the existence of other projects. Plaintiff asserts that as FHA mortgage insurance was therefore unavailable, financing was impossible to obtain.
Plaintiff sought a hearing on the no need certification before Public Health, which was denied. Plaintiff then filed the instant action in circuit court, seeking review of the agency’s certification, superintending control and declaratory judgment on the need for a nursing home and whether plaintiff was entitled to a hearing before Public Health. Plaintiff’s complaint was dismissed, on defendants’ motion, on the basis that circuit court lacked jurisdiction to review an agency’s action absent a record at the agency level. Plaintiff appeals as of right.
I. The right to an agency hearing.
A. Statutory right to a hearing.
Plaintiff’s argument regarding the statutory right to a hearing on Public Health’s "no need” certification is without merit. 12 USC 1715w(d)(4), which requires that the state agency noted in 42 USC 291d(a)(l) certify need for a facility before insurance may be issued, does not provide for a hearing regarding such certification. Nor is a right to a hearing mentioned in the rest of 12 USC 1715w.
Plaintiff’s attempt to use the hearing provisions of 42 USC 291d(a)(9) is unconvincing. That statute is part of a statutory scheme whereby money is allocated to the states, 42 USC 291a, for purposes of health care facility construction and modernization. See 42 USC 291. Under this scheme, a designated state agency, which in this state is Public Health, may formulate a plan which includes a survey of the need for the various types of facilities throughout the state. 42 USC 291d. After approval by the state agency and the attendant right to a hearing, 42 USC 291d(a)(9), final approval by the Surgeon General entitles an applicant to Federal funds allocated to the state.
Obviously, this scheme is quite distinct from that provided by 12 USC 1715w. The only common factor is that 12 USC 1715w refers to 42 USC 291d to determine the appropriate agency to certify need. Since 42 USC 291d also provides for the formulation of a comprehensive state plan, it is only natural that the agency formulating such a plan be the agency passing upon the "need” for a given facility. There is nothing in 12 USC 1715w or 42 USC 291d to imply that the hearing provision in the latter statute should be grafted upon the former. The other statutes cited by plaintiff also do not apply to the instant case.
B. Due process right to a hearing.
Plaintiff contends that due process mandates a hearing before Public Health as that agency’s certification to HUD deprived it of a property interest. We hold that there is no constitutional right to a hearing in the case at bar.
The United States Supreme Court recently defined the "property” interests which are protected by a due process right to a hearing. See Perry v Sindermann, 408 US 593; 92 S Ct 2694; 33 L Ed 2d 570 (1972), Board of Regents of State Colleges v Roth, 408 US 564; 92 S Ct 2701; 33 L Ed 2d 548 (1972).
In Roth, the Court held that an untenured college professor did not have a property interest in reemployment after not being rehired, because he did not have a "legitimate claim of entitlement” to continued employment. Cf. Perry v Sindermann, supra. The Court in Roth held:
"Certain attributes of 'property’ interests protected by procedural due process emerge from these decisions. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.” Board of Regents v Roth, supra, at 577.
The Michigan Supreme Court applied the Roth definition in Bisco's Inc v Liquor Control Commission, 395 Mich 706; 238 NW2d 166 (1976), Bundo v Walled Lake, 395 Mich 679; 238 NW2d 154 (1976), holding that renewal of a liquor license is a "property” interest entitled to the due process protection of notice and a hearing. In both cases, the Court held that the licensee had a "legitimate claim of entitlement” to renewal of the license.
In the case at bar, we find that plaintiff has demonstrated no deprivation of a property interest deserving due process protection. Plaintiff could have no reasonable expectation that it would obtain mortgage insurance from HUD, because such insurance was conditional on a certification of need by Public Health. Likewise, determination that need for a nursing home existed could not be reasonably anticipated; that determination depended on Public Health’s assessment of the availability of nursing home beds in the area and projected future use. As plaintiff has failed to show a legitimate claim of entitlement to the benefit desired, denial of that benefit does not require due process protection. Plaintiff has no due process right to a hearing before Public Health.
II. Jurisdiction of circuit court to review Public Health’s "no need” certifícation
In part I of this opinion, we held that plaintiff had no right to a hearing before Public Health concerning the need for a nursing home in South-field. Consequently, any review of the agency’s determination cannot be dependent on the existence of a record — there is none now nor, in the absence of a right to a hearing, can plaintiff compel the development of a record. The absence of a record significantly narrows the possibility of review on the grounds advanced by plaintiff.
A. Administrative Procedures Act.
MCLA 24.301; MSA 3.560(201) provides for judicial review of an agency’s final decision or order in a "contested case”. A "contested case” is defined as:
"[A] proceeding, including but not limited to rate-making, price-fixing and licensing, in which determination of the legal rights, duties or privileges of a named party is required by law to be made by an agency after an opportunity for an evidentiary hearing.” MCLA 24.203; MSA 3.560(103).
The need certification in the case at bar was not a "contested case”, as no evidentiary hearing was required by law. Thus, judicial review under MCLA 24.301; MSA 3.560(201) was unavailable. See Bisco’s, Inc v Liquor Control Commission, supra, at 719-721 (Levin, J., concurring), Kelly Downs, Inc v Racing Commission, 60 Mich App 539; 231 NW2d 443 (1975).
B. Statutory right to appeal.
MCLA 600.631; MSA 27A.631 provides:
"An appeal shall lie from any order, decision, or opinion of any state board, commission, or agency, authorized under the laws of this state to promulgate rules from which an appeal or other judicial review has not otherwise been provided for by law, to the circuit court of the county of which the appellant is a resident or to the circuit court of Ingham county, which court shall have and exercise jurisdiction with respect thereto as in nonjury cases. Such appeals shall be made in accordance with the rules of the supreme court.”
Review under this statute is not de novo, but is limited in scope to "whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record”. Const 1963, art 6, § 28; Viculin v Department of Civil Service, 386 Mich 375, 392; 192 NW2d 449 (1971). As no hearing was required, the circuit court could not review the evidentiary support for Public Health’s "no need” determination. That court, limited to reviewing whether the agency’s action was "authorized by law”, could not grant the relief sought by plaintiff under MCLA 600.631; MSA 27A.631.
C. Superintending control.
GCR 1963, 711 provides for superintending control over lower courts and tribunals where no other adequate remedy is available. See GCR 1963, 711.2. In the case at bar, plaintiff has a right to appeal under MCLA 600.631; MSA 27A.631, even though the scope of review on appeal, in the absence of a hearing, is quite narrow. Therefore, superintending control is not available where there are no extraordinary circumstances making review by appeal an inadequate remedy. 4 Honigman & Hawkins, Michigan Court Rules Annotated, 59 (1967). As we hold that the lower court was not presented with such extraordinary circumstances, denial of relief under GCR 1963, 711 was proper.
In addition, superintending control is unavailable for review of an agency’s factual determination where there is no record for the court to consider. Lepofsky v Lincoln Park, 48 Mich App 347; 210 NW2d 517 (1973), Drouillard v Roseville, 9 Mich App 239; 156 NW2d 628 (1967). Here, it is Public Health’s factual determination that no need existed for the proposed nursing home from which plaintiff seeks review. Because there is no record, review of that determination is impossible.
D. Declaratory judgment.
Under GCR 1963, 521.1, circuit courts have the power to issue declaratory judgments. That power is discretionary; 521.1 states that a circuit court "may declare the rights and other legal relations of any interested party”. See, also, 2 Honigman & Hawkins, Michigan Court Rules Annotated, 688-690 (1963).
In the case at bar, plaintiff has a remedy, albeit a limited one, under MCLA 600.631; MSA 27A.631. Furthermore, as plaintiff has no right to a hearing before Public Health, a review of its factual no need determination is not possible in a declaratory judgment action. As Public Health is designated to determine need administratively, circuit court should not undertake an independent investigation of the need for the proposed facility. In this context, we hold that denying plaintiff declaratory relief was not an abuse of discretion. See 2 Honigman & Hawkins, Michigan Court Rules Annotated, 690 (1963).
In conclusion, we hold that plaintiff had no right to a hearing before Public Health concerning the need for the proposed nursing home. The resultant lack of a record prevents review of that factual determination. Appeal is available under MCLA 600.631; MSA 27A.631, but is limited to whether the agency’s action was authorized by law, an issue not contested by plaintiff. The trial court did not err in refusing to review Public Health’s ac tion under the other grounds on which plaintiff relies.
Affirmed. Costs to appellees.
12 USC 1715w(d)(4) provides in part:
"The Secretary shall not insure any mortgage under this section unless he has received, from the State agency designated in accordance with section 291d(a)(l) of Title 42 for the State in which is located the nursing home or intermediate care facility or combined nursing home and intermediate care facility covered by the mortgage, a certification that (A) there is a need for such home or facility or combined home and facility.”
Public Health is the agency charged under 42 USC 291d(a)(l) with developing a state plan describing, among other things, the need for health care facilities for the purpose of state participation in HUD’s program of grants and loans for the construction and modernization of health care facilities. See 42 USC 291a et seq. Public Health found no need for plaintiffs project on the basis of this plan.
While 42 USC 291d(a)(9) requires Public Health to afford applicants for construction or modernization projects an opportunity for a hearing, that requirement does not mandate a hearing in the case at bar, as plaintiff is not proceeding under 42 USC 291d and is not applying for a grant or loan under section 291.
See note 1, supra.
US Const, Am XIV; Const 1963, art 1, § 17.
Plaintiff asserts that Public Health’s Master Plan for development of health care facilities could be considered a record. We disagree; absent a hearing, there can be no record. Cf. MCLA 24.286; MSA 3.560(186).
MCLA 24.201; MSA 3.560(101).
See GCR 1963, 706.1, which provides that appeals under the statute are governed by GCR 1963, 701 and 702, except that no bond under 701.7 is required.
Plaintiff does not contend that Public Health’s action was not authorized by law. It clearly was authorized by 12 USC 1715w.
Plaintiff did not argue below or on appeal that Public Health’s Master Plan for health care facilities was a "rule” under MCLA 24.207; MSA 3.560(107) and that the no need certification was a declaratory ruling which was reviewable under MCLA 24.263; MSA 3.560(163). See Greenfield Construction Co, Inc v Department of State Highways, 402 Mich 172; 261 NW2d 718 (1978) (opinion of Levin, J.). We therefore do not address this issue. | [
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Per Curiam.
Defendant was convicted by a jury of assault with intent to do great bodily harm less than murder in violation of MCLA 750.84; MSA 28.279. On July 16, 1976, he was sentenced to a prison term of 6 years and 8 months to 10 years. Defendant now appeals, claiming that the trial judge erred in refusing his request for a jury instruction on the defense of insanity. We agree and accordingly reverse.
In Michigan a defendant in a criminal case is presumptively sane. But, as noted in People v Neumann, 35 Mich App 193, 195; 192 NW2d 345 (1971),
"[w]hen a defendant introduces any evidence of insanity at the time of the offense, the people must prove beyond a reasonable doubt that defendant was sane when he committed a crime, just as they must prove every other element of the crime.”
See also, People v Krugman, 377 Mich 559; 141 NW2d 33 (1966), People v Woody, 380 Mich 332; 157 NW2d 201 (1968), People v Sargeant, 65 Mich App 691; 238 NW2d 175 (1975). Where evidence supportive of an insanity defense is introduced at trial, it is for the trier of fact to determine whether the accused was sane or insane at the time of the charged offense. People v Duffy, 67 Mich App 266, 269; 240 NW2d 771 (1976).
The mere assertion of an insanity defense does not alone entitle an accused to jury consideration of that defense. People v Blocker, 45 Mich App 138; 206 NW2d 229 (1973). Yet the quantum of evidence necessary to create a jury question on the subject of a defendant’s sanity is not great. People v Krugman, supra, People v Neumann, supra. As a general rule, the question of the sufficiency of evidence is to be resolved by the jury unless there is no evidence at all upon a material point. People v Abernathy, 253 Mich 583, 587; 235 NW 261 (1931).
In People v Fields, 55 Mich App 265, 270; 222 NW2d 207 (1974), this Court indicated that an accused’s testimony and his manner and demeanor in delivering it can be considered as evidence supportive of an insanity defense. The present defendant was the only defense witness to testify at trial. Although rambling and often incomprehensible, his testimony revealed that he had been institutionalized almost continuously since the age of seven for mental and emotional disturbances. When requested to do so, defendant could neither explain his behavior nor describe his emotions on the day of the alleged assault and he indicated that he was then unable to control his conduct or feelings.
The salient elements of the Michigan test of insanity are: "(1) whether defendant knew what he was doing was right or wrong; and (2) if he did, did he have the power, the willpower, to resist doing the wrongful act?” People v Martin, 386 Mich 407, 418; 192 NW2d 215 (1971). We are of the opinion that the accused’s testimony provided at least some evidence in support of his insanity defense and the matter should have been submitted to the jury. The trial court reversibly erred in refusing to instruct the trier of fact on the concept of not guilty by reason of insanity.
We have considered the other issue raised by defendant and find it lacking in merit.
Reversed and remanded. | [
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Quinn, P. J.
By complaint for writ of mandamus and other relief, plaintiff sought to compel defendants to place plaintiff on tenure status for the 1976-1977 school year. Both parties filed motions for summary judgment and stipulated that the controversy be disposed of on the basis of the pleadings, stipulated facts, oral argument and briefs. The trial court granted defendants’ motion and summary judgment entered in their favor. Plaintiff appeals.
Plaintiff has been employed by defendants as a full time teacher during the 1974-1975 and 1975-1976 school years. On the recommendation of the superintendent of defendants’ schools and at a meeting held March 17, 1975, defendant board granted plaintiff tenure status beginning with the school year 1975-76. At a meeting held November 17, 1975, defendant board rescinded the grant of tenure status as being in violation of the state tenure act (MCLA 38.71 et seq.; MSA 15.1971 et seq.). At a meeting of defendant board held March 29, 1976, plaintiff was placed on third year probationary status and was so advised by letter dated March 31, 1976. Plaintiff’s only teaching employment in Michigan has been as stated above. Plaintiff filed this action May 10, 1976.
Plaintiff states the first issue as:
"Did the appellee board of education’s action in granting appellant tenure after one year of teaching in the school district give the appellant tenure under the Michigan teacher tenure act?”
In support of an affirmative answer to this question, plaintiff argues that the tenure act does not preclude a board of education from granting a teacher tenure prior to the expiration of a two-year probationary period and considering the purpose of the tenure act, his grant of tenure was valid and binding. The trial court did not accept this argument, nor do we.
MCLA 38.151; MSA 15.2051 provides:
"This act shall apply to all school districts of the state.”
The pertinent portion of MCLA 38.81; MSA 15.1981 provides:
"All teachers during the first two school years of employment shall be deemed to be in a period of probation:”.
The only exception to the required two-year probationary period is found in MCLA 38.92; MSA 15.1992:
"If a teacher on continuing tenure is employed by another controlling board, he shall not be subject to another probationary period of more than one year beginning with the date of employment, and may at the option of the controlling board be placed immediately on continuing tenure.”
Plaintiff does not fall within this exception. Express mention in a statute of one thing implies exclusion of other similar things, Valenti Homes, Inc v Sterling Heights, 61 Mich App 537; 233 NW2d 72 (1975). By implication, defendant board was precluded from granting plaintiff tenure prior to the expiration of the two-year probationary period. The attempt to do so was an illegal act. Plaintiff did not gain tenure under the tenure act.
Plaintiff claims tenure by contract, but the contract relied on was in violation of the statute and was void and unenforceable, American Trust Co v Michigan Trust Co, 263 Mich 337; 248 NW 829 (1933). Plaintiff obtained nothing by the alleged contract.
Decision on these two issues obviates discussion of the final two issues.
Affirmed with costs to defendants. | [
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Per Curiam.
This is a suit on a contract of indemnification. Under the contract, the subcontractor, Irving M. Moskovitz & Company, agreed to indemnify and hold harmless the general contractor, J. A. Ferguson Construction Co., for covered claims arising from the subcontractor’s work, on a multistory apartment building to be constructed in Highland Park, Michigan. On May 1, 1972, Roger Bosca, a Moskovitz employee, fell to his death from a fifth-floor opening in the building under construction. The circumstances of his fatal plunge, hotly disputed at trial, are largely a matter of conjecture. The record, however, discloses (1) that Bosca fell as he was preparing manually to hoist 20-foot lengths of copper tubing by leaning out from the fifth-floor opening of the structure, and (2) that a wooden two-by-four, wedged horizontally between the side walls of the opening as a barrier, failed of its intended purpose and shortly preceded Bosca in his fall.
Bosca’s administratrix filed a wrongful death action against Ferguson on July 21, 1972, alleging that Ferguson’s method of barricading the opening
"was so grossly negligent, wilfully unlawful, wrong ful, reckless, wanton and done in a reckless disregard of Plaintiffs decedent’s rights and safety, as to exhibit a reckless, wanton indifference to the consequences of his (sic) actions.”
On February 21, 1973, Ferguson filed a third-party complaint for indemnification against Moskovitz. In its April 24, 1973 answer, Moskovitz raised certain defenses not here pertinent, but failed to assert gross negligence or wilful, wanton misconduct on the part of Ferguson. On January 28, 1974, Bosca and Ferguson entered into a consent judgment in the amount of $260,000. Finally, on February 26, 1976, the instant trial commenced. The jury, finding both Ferguson and Moskovitz negligent, awarded recovery under the indemnification contract to Ferguson.
On appeal, Moskovitz raises four issues, only two of which need be discussed:
"I. Did Third Party Plaintiff Fail To Present Sufficient Proof Of Third Party Defendant’s Negligence And The Causal Relationship Thereof To Bosca’s Fall, Thereby Requiring An Order Of Directed Verdict?
"II. Was The Issue Of Indemnitee’s "Gross Negligence” Or Wilful And Wanton Misconduct Raised By The Pleadings, Or Tried By The Implied Consent Of The Parties, And If The Latter, Should The Court Have Allowed An Amendment To Conform To The Proofs?”
I.
In reviewing the denial of motions for a directed verdict, this Court is required to view the evidence, and all legitimate inferences emanating from the evidence, in the light most favorable to the opponent of the motion. Hackett v Foodmaker, Inc, 69 Mich App 591; 245 NW2d 140 (1976). If reasonable minds could differ on the meaning of the evidence, then the motion is correctly denied. Birou v Thompson-Brown Co, 67 Mich App 502; 241 NW2d 265 (1976).
Donning, then, the appropriate appellate spectacles, we find substantial evidence of negligence properly attributable to Moskovitz. Sylvester, Moskovitz’s foreman, stated in his deposition that he was aware of the dangerous and unsafe condition of the barricaded openings, that he informed all of his men to stay away from the barriers, and that all of his employees, Bosca included, knew of the unsafe conditions. Sylvester also stated that the process used in passing the copper tubing up to higher floors was dangerous and that he would have called a halt had he known of it. Moreover, Weiser, the Moskovitz employee assigned to direct Bosca’s work, admitted that he sent Bosca to the fifth floor to receive the copper tubing. Given this evidence and our recognition that directed verdicts, particularly in negligence cases, are viewed with disfavor, Cody v Marcel Electric Co, 71 Mich App 714; 248 NW2d 663 (1976), we hold that the trial court did not err in denying Moskovitz’s motion for directed verdict.
II.
In considering appellant’s second assignment of error, we shall assume arguendo that the issue of Ferguson’s gross negligence or wilful, wanton misconduct was tried by the implied consent of the parties. GCR 1963, 118.6. The dispositive question then becomes whether the lower court abused its discretion in denying Moskovitz’s request to amend its pleadings to add the foregoing defenses.
Under GCR 1963, 118.1, leave to amend the pleadings "shall be freely given” except where the opposing party may suffer prejudice by the amendment. Ben P Fyke & Sons v Gunter Co, 390 Mich 649; 213 NW2d 134 (1973). As noted in Fyke:
" ' "Prejudice” refers to matter which would prevent a party from having a fair trial, or matter which he could not properly contest, e.g. when surprised. It does not refer to the effect on the result of the trial otherwise. ’ (Emphasis supplied.)
" 'The possible prejudice, in other words, must stem from the fact that the new allegations are offered late rather than in the original pleading, and not from the fact that the opponent may lose his case on the merits if the amendment is allowed, whereas he may win it if the amendment is denied.’ James, Civil Procedure, § 5.2, p 158 (emphasis by the author).” 390 Mich at 657-658.
Moreover, the Court in Fyke recognized that "[t]he litigation may proceed to a point where the opposing party cannot reasonably be expected to defend against the amendment; this is an especially perti nent factor on the eve of, during, or after trial.”' Id. at 663.
Based on the cited language in Fyke, supra, and on our independent examination of the circumstances at bar, we find a sufficient demonstration of prejudice to Ferguson and, accordingly, discern no abuse of trial-court discretion in the denial of amendment. Here, almost a year after Moskovitz filed its answer — an answer silent on the affirmative defenses now alleged — Ferguson entered into a consent judgment with Bosca’s administratrix. Had Moskovitz’s answer timely alleged the then-apparent defenses of gross negligence and wilful, wanton misconduct, Ferguson might well have declined to settle the principal lawsuit.
Instead, having thus settled based on a calculation of defenses to be asserted in the third-party suit, Ferguson was then placed in the anomalous position of showing its actual or potential negligence (in order to justify settlement) while simultaneously showing that its negligence was no greater than that of Moskovitz (in order to succeed on the indemnity claim). See Tankrederiet GeGon A/S v Hyman-Michaels Co, 406 F2d 1039 (CA 6, 1969). In this context, it is clearly unfair to require that Ferguson object to "evidence * * * at the trial on the ground that it is not within the issues made by the pleadings”. GCR 1963, 118.3. Rather, we agree with the trial court that the demise of Moskovitz’s arguably assertable and readily apparent defenses is attributable to remiss procedural practice. If the lower court had granted amendment, it would have mistakenly bestowed a benefit on Moskovitz while at the same time rendering even more tenuous Ferguson’s already compromised position. The lower court thus declined an invitation to stretch the policy of liberal amend ment beyond its breaking point. We affirm that decision.
Costs to appellee.
In pertinent part the contract of indemnity provides:
"11.20 The Subcontractor shall indemnify and hold harmless the Contractor and all of his agents and employees from and against all claims, damages, losses and expenses including attorneys’ fees arising out of or resulting from the performance of the Subcontractor’s Work under the Contract Documents, provided that any such claim, damage, loss, or expense (a) is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than the Work itself) including the loss of use resulting therefrom, and (b) is caused in whole or in part by any negligent act or omission of the Subcontractor or anyone directly or indirectly employed by him or anyone for whose acts he may be liable, regardless of whether it is caused in part by a party indemnified hereunder.” (Emphasis added.)
Clearly, the negligence of Weiser or Bosca would invoke the italicized language of the contract, thus imputing their negligence to Moskovitz, their employer. | [
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] |
D. F. Walsh, P. J.
Petitioner appeals its property-tax assessment for the years 1971 through 1975. The case presents two questions. The first is whether a property tax determination by the Tax Tribunal is reviewable by the Court of Appeals as of right or only on leave granted. The second is whether the tribunal’s assessment comported with the Supreme Court’s instructions on remand in CAF Investment Co v State Tax Commission, 392 Mich 442; 221 NW2d 588 (1974).
In enacting the Tax Tribunal Act, the Legislature made the following provision for appeals:
"SEC. 53. (1) Subject to section 28 of article 6 of the constitution of 1963, and pursuant to section 102 of Act No. 306 of the Public Acts of 1969, as amended, being section 24.302 of the Michigan Compiled Laws, and in accordance with general court rules, an appeal from the tribunal’s decision shall be by right to the court of appeals. For purposes of the constitutional provision, the tribunal is the final agency for the administration of property tax laws.
"(3) An order, ruling, or decision prior to final decision of the tribunal is not reviewable unless leave to appeal is granted by the court of appeals.” MCLA 205.753; MSA 7.650(53).
The plain language of the statute specifically grants an appeal of right to the Court of Appeals from final decisions of the Tax Tribunal. We must determine whether that provision is in accordance with the constitution and with applicable court rules.
By its terms the statute is subject to Const 1963, art 6, § 28:
"Sec. 28. All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record. Findings of fact in workmen’s compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law.
"In the absence of fraud, error of law or the adoption of wrong principles, no appeal may be taken to any court from any final agency provided for the administration of property tax laws from any decision relating to valuation or allocation.”
That section limits the scope of review of the tribunal’s decisions concerning valuation or allocation. CAF Investment Co v State Tax Commission, supra, Fisher-New Center Co v State Tax Commission, 380 Mich 340; 157 NW2d 271 (1968), rev’d on other grounds on rehearing, 381 Mich 713, 167 NW2d 263 (1969), Pantlind Hotel Co v State Tax Commission, 380 Mich 390; 157 NW2d 293 (1968). It does not indicate, however, whether review is of right or by leave. See, Viculin v Department of Civil Service, 386 Mich 375, 392-393, n 15; 192 NW2d 449, 458, n 15 (1971). Therefore, although the scope of review permitted under MCLA 205.753; MSA 7.650(53) is limited by art 6, § 28, the statutory grant of an appeal of right does not conflict with that constitutional provision.
We next must ascertain whether the statutory grant is in accordance with the General Court Rules.
Statutory rules of practice not in conflict with the court rules are effective until superseded by those rules. GCR 1963, 16; see, Perin v Peuler (On Rehearing), 373 Mich 531; 130 NW2d 4 (1964), People v Denmark, 74 Mich App 402; 254 NW2d 61 (1977). The method of review of cases by the Court of Appeals is governed by GCR 1963, 801.1:
".1 Method of Review. In all cases in which review by the Supreme Court or by the Court of Appeals is authorized by law, review shall be had by appeal to the Court of Appeals, subject to further appeal to the Supreme Court as provided by these rules. This rule refers only to the court and method of review and does not restrict, enlarge or change the right or scope of review provided by law, except as explicitly set out in these rules.”
That rule sustains the statutory grant of appeals as of right unless it is specifically altered by some other court rule. Attorney General v Michigan Public Service Commission, 392 Mich 660; 221 NW2d 299 (1974), Evans v United States Rubber Co, 379 Mich 457; 152 NW2d 641 (1967).
The only rule which arguably might effect that alteration is GCR 1963, 806.2(1):
".2 Appeal by Leave. The Court of Appeals may grant leave to appeal from:
"(1) Final or interlocutory judgments or orders of administrative agencies or tribunals which by law are appealable to the Court of Appeals or the Supreme Court.”
We find, however, that the language in that court rule is not sufficiently explicit, within the meaning of GCR 1963, 801.1, to negate the specific statutory grant of appeal by right contained in the statute herein considered. Compare, Attorney General v Michigan Public Service Commission, supra, with Perin v Peuler (On Rehearing), supra. We hold that MCLA 205.753; MSA 7.650(53) validly grants an appeal as of right to this Court from a final property tax determination of the Michigan Tax Tribunal.
The second issue concerns the tribunal’s adherence to the Supreme Court’s holding in the original appeal in this case, CAF Investment Co v State Tax Commission, supra. The "law of the case” rule requires us to adhere to the legal rulings made in that opinion since the pertinent underlying facts have not changed. Higgins v Monroe Evening News, 70 Mich App 407; 245 NW2d 769 (1976).
In its opinion, the Supreme Court held that for the purpose of finding the "true cash value” of petitioner’s property using the capitalization of income approach, the tribunal could not base its valuation upon a rate of return which comparable unencumbered property could earn in the current market where petitioner’s property was in fact encumbered by an unfavorable long-term lease.
The Court noted that there may be cases in which it would be inappropriate to consider lease term rental as a component of projected income. In this case, however, the Court required that the actual income from the lease could not be ignored and that it must constitute the basis for the valuation, 392 Mich at 456, n 6; 221 NW2d at 595, n 6.
After a full hearing on remand the tribunal adopted an appraisal based upon the rate of return on comparable unencumbered property. By failing to base its projected income calculations upon the actual income of the property, the tribunal committed a clear error of law. We, therefore, remand this case to the Tax Tribunal for redetermination in accordance with the Supreme Court’s holding.
The tribunal need not utilize actual income as the sole basis for valuation, but may adjust that figure to reflect other factors that would affect the "usual selling price” of the property. CAF Investment Co v State Tax Commission, supra, at 455-456. However, actual income must be the starting point for such calculations. | [
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Bashara, P. J.
The prosecutor appeals from an order granting defendant’s motion to suppress evidence and quash the information. Defendant was charged with carrying a concealed pistol and another concealed weapon contrary to MCLA 750.227; MSA 28.424.
The facts involved are neither complicated nor disputed. A private security guard stationed at a Cunningham’s drugstore in the Greyhound Bus Terminal spotted defendant acting in a "suspicious” manner, as if ready to steal some articles. The guard approached the defendant. By this time the guard’s partner was already speaking to him. The guard noticed a bulge in defendant’s pocket. A pat down revealed a .32-caliber pistol and a concealed knife. The weapons were turned over to the police and defendant was placed under arrest.
Defense counsel argued Fourth Amendment exclusion provisions at the preliminary examination. However, a Recorder’s Court judge, sitting as ex amining magistrate, was not persuaded and bound defendant over for trial. The argument was renewed on motion before the trial court. The trial judge granted the motion on the basis that private security guards are bound by Fourth Amendment strictures and therefore the evidence seized by the guard must be suppressed.
The primary issue, then, is whether the Fourth Amendment restraint on the activities of governmental officers extends to searches by private security guards. We hold that it does not and, therefore, reverse the opinion of the trial court.
This Court has very clearly spoken to the issue on more than one occasion. In People v Harry James Smith, 31 Mich App 366, 373-374; 188 NW2d 16 (1971), the Court stated:
"As previously stated, Mr. Gunn was a private guard, not a police officer, nor was he acting under any authority of any police agency. He was, therefore, a private individual. Thus, the evidence obtained is admissible into evidence whether his actions were reasonable or unreasonable.”
Again, in People v Langley, 63 Mich App 339, 344; 234 NW2d 513 (1975), we said, relying on People v Smith, supra:
"Admission of evidence obtained by a private individual, not acting under the authority of the state, is not prohibited by the U. S. Const, Am IV, whether his actions were reasonable or not.”
The learned trial judge relies on decisions of the United States Supreme Court to find that arrests by private security guards are made under "color of law” and are, therefore, subject to the Fourth Amendment strictures. A review of the cited deci sions leads us to the conclusion that such reliance is misplaced.
In Griffin v Maryland, 378 US 130; 84 S Ct 1770; 12 L Ed 2d 754 (1964), the security guard involved had been deputized by the county sheriff for the express purpose of policing an amusement park where the incident complained of occurred. Williams v United States, 341 US 97; 71 S Ct 576; 95 L Ed 774 (1951), involved a private detective who held a special police officer’s card and badge. The detective was accompanied by a city police officer sent by his superior to lend authority to the proceedings. It was under those circumstances that the United States Supreme Court determined that evidence obtained could be suppressed, because it was acquired under "the color of the law”. Surely the facts in the foregoing cases are distinguishable from those at bar.
Accordingly, we would adhere to the precepts laid down in Burdeau v McDowell, 256 US 465, 475; 41 S Ct 574, 576; 65 L Ed 1048, 1051 (1921), which have not, so far as our research has shown, been diluted by subsequent decision. The Court stated:
"The Fourth Amendment gives protection against unlawful searches and seizures, and as shown in the previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies * * * .
"It is manifest that there was no invasion of the security afforded by the Fourth Amendment against unreasonable search and seizure, as whatever wrong was done was the act of individuals in taking the property of another. A portion of the property so taken and held was turned over to the prosecuting officers of the Federal Government. We assume that petitioner has an unquestionable right of redress against those who illegally and wrongfully took his private property under the circumstances herein disclosed, but with such remedies we are not now concerned.”
Thus an individual has the right to redress any wrongs which may have been committed by private citizens, be they security guards or not. They can bring civil actions or file criminal complaints against the alleged offenders. It is because the cloak of sovereign immunity is wrapped around law enforcement officials that the Fourth Amendment is applied to their actions (though today a somewhat ragged cloak).
There is a growing feeling among the courts of this country that the exclusionary rule has been stretched far beyond its original and very useful purpose. That frustration was well voiced by Mr. Justice Blackmun in the recent case of United States v Janis, 428 US 433, 459; 96 S Ct 3021; 49 L Ed 2d 1046 (1976), reh den, 429 US 874; 97 S Ct 196; 50 L Ed 2d 158 (1976):
"In the past this Court has opted for exclusion in the anticipation that law enforcement officers would be deterred from violating Fourth Amendment rights. Then, as now, the Court acted in the absence of convincing empirical evidence and relied, instead, on its own assumptions of human nature and the interrelationship of the various components of the law enforcement system. In the situation before us, we do not find sufficient justification for the drastic measure of an exclusionary rule. There comes a point at which courts, consistent with their duty to administer the law, cannot continue to create barriers to law enforcement in the pursuit of a supervisory role that is properly the duty of the Executive and Legislative Branches. We find ourselves at that point in this case.”
Finally we note that another panel of this Court, in People v Eastway, 67 Mich 464; 241 NW2d 249 (1976), wrote to the issue here addressed. The holding there, that the Fourth Amendment should apply to private security guards, was only dicta to the law of the case. Nonetheless, insofar as it touches upon our holding, we specifically decline to follow its result or reasoning.
Our resolution of the first issue raised makes it unnecessary to determine whether the private guard’s actions were reasonable or justifiable.
Reversed and remanded for trial.
J. H. Gillis, J., concurred. | [
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Danhof, C. J.
On May 26, 1976, defendant was found guilty by a jury of manslaughter contrary to MCLA 750.321; MSA 28.553. This conviction arose out of a collision between an automobile driven by the defendant and a second automobile whose driver suffered severe injuries and subsequently died. On July 15, 1976, defendant was sentenced to five years probation. Several probation conditions were imposed including payment within 90 days of $3,000 to the victim’s wife, and, additionally, payment of one half of defendant’s after-tax income throughout the probation period. Subsequently, the probation order was amended to require that the payments be made to the fiduciary of the victim’s estate or, in the alternative, to the wife of the victim. Defendant apparently fulfilled all of the other probation conditions but failed to make any of the payments set out above. On April 11, 1977, following two hearings and a determination by the lower court that the defendant was financially able to make the payments, defendant was found to be in violation of his probation and sentenced to serve a term of 1-1/2 to 15 years in prison; the sentence to begin on July 11, 1977. The probation order was further amended to require payment of a fixed dollar amount per week rather than the one half of defendant’s income required by the original order. This Court granted defendant’s motion to stay imposition of sentence pending appeal.
On appeal defendant raises five issues. We note, however, that defendant has not taken an appeal from his manslaughter conviction. Therefore, defendant’s first two arguments, attacking the validity of that conviction, are not properly before this Court. In this appeal from the order revoking his probation, the defendant may properly raise those matters relating to the probation violation and the hearing thereon. See People v Pickett, 391 Mich 305, 316-318; 215 NW2d 695 (1974).
We will limit our discussion to those issues properly before us. In People v Higgins, 22 Mich App 479, 481; 177 NW2d 716 (1970), Judge T. M. Burns pointed out that "although the trial court need not have granted probation * * * the conditions he imposes on such probation must be lawful”. If the conditions imposed on defendant’s probation in the instant case were not lawful, then it was improper to revoke his probation for failure to comply with those conditions.
The people argue that the two disputed conditions were lawful because authorized by the probation statute, MCLA 771.3; MSA 28.1133, which reads in part:
"The court may impose such other lawful conditions of probation, including restitution in whole or in part to the person or persons injured or defrauded, as the circumstances of the case may require or warrant, or as in its judgment may be meet and proper.”
The people further argue that People v Good, 287 Mich 110; 282 NW 920 (1938), is "controlling precedent for the proposition that restitution payments can be ordered in the instant case”. In Good, the Court upheld the right of a trial court to order restitution payments as a condition of probation for a defendant convicted of negligent homicide with an automobile. The Good Court rejected the argument that because the defendant had not been granted a hearing as to the amount of restitution, he had been denied due process of law. The Good Court found that no damages were assessed by a restitution order because such an order is not a judgment upon which execution can issue, but rather a mere condition of probation.
In the instant case defendant relies primarily on People v Becker, 349 Mich 476; 84 NW2d 833 (1957), wherein the rationale of the Good opinion is criticized. In Becker, the Court refused to extend the Good rule to a defendant who had pled guilty to unlawfully leaving the scene of a personal injury accident. In Becker, the defendant denied fault for the accident. The Supreme Court held that in such circumstances the trial court could not condition probation on payment of money restitution to the accident victims. The Becker opinion characterized the holding of Good thusly:
"Thus we have held that the statutory sanction of requiring 'restitution’ as a condition of probation comprehended ordering the defendant in a criminal case to pay to certain third persons (not parties plaintiff or defendant in the criminal action) a sum of money fixed by the court itself. This, it will be noted, was without trial either as to extent of civil liability, or, indeed, as to the existence of civil liability itself.” People v Becker, supra, at 480.
In refusing to extend this holding the Becker opinion pointed out that in Good "injuries to the deceased apparently arose out of the very crime for which the defendant was convicted, namely, felonious homicide. But here the act of which defendant was convicted was not that of striking down but of leaving.” People v Becker, supra, at 480. The opinion goes on to severely criticize the rationale of the Good opinion, then states:
"We conclude, from the authorities above cited, that even where imposition of the restitution requirement is held to be proper under the circumstances of the particular case before the court, it can be imposed only as to loss caused by the very offense for which defendant was tried and convicted. As to the other crimes or offenses there has been no fixing of his liability therefor in a constitutional sense.” People v Becker, supra, at 486.
While criticizing the rationale of Good, the Becker opinion relies on the more limited ground that even assuming that the statute allowed restitution consisting of compensation for personal injuries done and further assuming that civil and criminal liability are "synonymous”, still restitution "can be imposed only as to loss caused by the very offense for which defendant was tried and convicted”. The Becker opinion was signed by four justices. Four other justices concurred in the result. The instant case more closely parallels Good than Becker. Several decisions of this Court rendered subsequent to both Good and Becker shed some light on their proper application.
People v Nawrocki, 8 Mich App 225, 227; 154 NW2d 45 (1967), involved a defendant convicted of uttering and publishing one forged check, but who was required as a condition of his probation to make restitution to third parties on other checks as well. The opinion reads in part:
"The second claim of defendant is that his order of probation was erroneous because it required forthwith payment of the total of several other forged checks uttered and published by him and costs of $100. Defendant met this term of the probation order. Assuming a valid conviction, we read CL 1948, § 771.3 (Stat Ann 1954 Rev § 28.1133) as authorizing such terms in a probation order following conviction of a crime of the type involved here. (See People v. Becker [1957], 349 Mich 476.)”
In People v Gallagher, 55 Mich App 613, 617-621; 223 NW2d 92 (1974), lv den, 393 Mich 766 (1974), this Court upheld a probation condition ordering restitution in an amount exceeding the value of the property directly involved in defendant’s criminal conviction. The Gallagher opinion reads in part:
"Defendant was convicted of receiving the cowl worth at most $1,500 from a stolen car worth at least $6,277.84. He was required to make restitution of $6,277.84. He claims the judge could not do that and cites People v Becker, 349 Mich 476, 486; 84 NW2d 833 (1957), to wit:
" '[E]ven where imposition of the restitution requirement is held to be proper under the circumstances of the particular case before the court, it can be imposed only as to loss caused by the very offense for which defendant was tried and convicted.’
"In Becker, four of the eight justices concurred only in the result and the language relied on by defendant was unnecessary. Mr. Becker, an uninsured teen, denied fault, and only admitted illegally leaving the accident scene. If what he said was true, he would not owe the money he was required to pay. That case is very different from ours.
"Statutes similar to ours in other states have been held to permit restitution of the whole loss caused by a course of criminal conduct upon conviction of a crime arising out of that conduct.
" * * * restitution and the procedure to determine it should be fair. The amount of restitution or reparation should be reasonable.
"If restitution ordered is not paid because the defendant has been unable to pay it, he should not have probation revoked or be imprisoned. The principle involved is the same as that involved in imprisonment for failure to pay a fine that cannot be paid.
"It seems desirable to have the defendant and his lawyer participate in the restitution decision. The matter might be discussed at the time of a plea of guilty. The recommended amount of restitution or reparation and the manner of its payment should be included in the presentence report and disclosed. The court might tell the defendant at the time of conviction that if probation is granted, restitution may be required, and suggest that he and his lawyer propose a plan for restitution to the presentence investigator. In any event, the court could invite comment from defendant about the restitution the court is considering before it is imposed as a part of the sentence.
"The amount and manner of payment of reasonable restitution is a matter for the judgment of the sentencing judge, as to him 'may be meet and proper’.
" 'The legislatively announced state policy with respect to probation is that it is a matter of grace. MCLA 771.4; MSA 28.1134. The statutory authority of a sentencing judge granting probation is broad, as is his authority to alter and amend the probationary order. MCLA 771.1, 771.2, 771.3; MSA 28.1131, 28.1132, 28.1133. Probation is peculiarly within the province of the sentencing judge, and an appellate court should not interfere in probation matters absent a showing of a violation or abuse of statutory authority or violation of some constitutional right of the defendant.’ People v Sattler, 20 Mich App 665, 669-670; 174 NW2d 605, 607 (1969).
"The justice of restitution is deeply rooted in human nature and history. Proverbs, 6:30-31; 4 Blackstone, Commentaries, pp 429-430. Compensation of victims of crime has been enacted in England and is popularly advocated here. Who better to compensate the victims to the extent he or they can do so than the criminal or criminals causing the harm?
"The trial judge’s requirement that defendant pay the value of the stolen car from which the cowl was found in his collision shop is not. in violation of the probation statute nor is it a violation of any constitutional right of the defendant. We do not find it to be an abuse of the judge’s discretion.”
People v Jim Williams, 57 Mich App 439, 441-442; 225 NW2d 798 (1975), involved a defendant who had pled nolo contendere to felonious assault, and who was sentenced to two years probation on the condition that he pay $500 in court costs and fine and make restitution to the victim of the assault in the amount of $1,500. The opinion reads in part:
"Defendant next argues that the imposition of restitution payments to the injured party as a condition of his probation violates due process of law. MCLA 771.3; MSA 28.1133, authorizes the sentencing court to require the payment of restitution and costs as a condition of probation. Furthermore, our courts have repeatedly held that when a defendant is given probation, he is not deprived of any of his rights without due process, but rather he is given the privilege of avoiding the usual penalty of his crime by the payment of a sum of money and observance of other conditions. People v Good, 287 Mich 110; 282 NW 920 (1938), People v Jaynes, 23 Mich App 360, 362; 178 NW2d 558 (1970), People v Marks, 340 Mich 495; 65 NW2d 698 (1954). Therefore, the trial court’s requirement of restitution in the case at bar was not in violation of the probation statute nor was it a violation of any constitutional right of the defendant. See People v Gallagher, 55 Mich App 613; 223 NW2d 92 (1974).”
In People v Sattler, 20 Mich App 665; 174 NW2d 605 (1969), this Court, in effect, put on the defendant the burden of showing any inaccuracy in the amount of restitution ordered as a condition of probation. The Sattler opinion makes it clear, however, that the sentencing court in that case had attempted to fix the amount of restitution to equal the amount of money obtained by the defendant from his victims. The method of such determination was a matter of record. In Gallagher, supra, and Nawrocki, supra, the amount of restitution was made equal to the amount of loss suffered by victims of the defendants in those cases. The methods of computation were clearly revealed on the record. In Good, supra, while upholding the sentencing court’s right to impose restitution as a probation condition, the Court set aside the revocation and remanded the case to the trial court because the original probation order was invalid. The Good Court stating in part:
"The court should in any event include within its order the specific purpose, terms and conditions of the payment of money by a defendant if such payment is made a condition of probation.” People v Good, supra, at 117.
The people’s brief contends that "[a]ppellant makes no serious contention that the amount of restitution ordered is excessive”. We note, however, that defendant does argue in his brief that the damages have never been measured and that the record does not provide a factual basis for the amounts of restitution ordered here. We agree. The reparational amounts ordered paid as a condition of probation in the instant case are essentially arbitrary. In such a case we will not impose a burden on the defendant of showing the inaccuracy of the amounts. To be a valid condition of probation the restitution order must be based on the victim’s loss although it may be limited by a defendant’s ability to pay. People v Gallagher, supra.
The probation statute does not create a substitute for an action for civil damages. Criminal and civil liability are not synonomous. A criminal conviction does not necessarily establish the existence of civil liability. Civil liability need not be established as a prerequisite to the requirement of restitution as a probation condition; such restitution for personal injury, therefore, generally should be more limited in scope than civil damages. In the instant case we believe that restitution should encompass only those losses which are easily ascertained and measured, and which are a direct result of the defendant’s criminal acts.
Since the record in the instant case does not disclose the purpose of the payments, nor the manner in which they were determined, we are unable to conclude that they constitute lawful restitution. We hold that revocation of probation may not be based on failure to comply with these unlawful conditions. We reverse the order of revocation.
Reversed and remanded. | [
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D. C. Riley, P. J.
This is a suit for injunction, brought under the aegis of the Michigan Environmental Protection Act, MCLA 691.1201 et seq.; MSA 14.528(201) et seq. Following a nine-day trial that began on November 23, 1976, plaintiff Wayne County Health Department, Air Pollution Control Division, (hereafter, "the Division”), secured a decree from the lower court directing defendant Olsonite Corporation to adopt within a stated period "a specific supplemental odor control system” capable of achieving emission limits set by the court.
The Division, empowered to investigate, prevent and abate causes of air pollution within Wayne County and to enforce the Wayne County Air Pollution Control Regulation, (hereafter, "the Regulation”), filed the present suit on October 12, 1973. Its complaint alleged that Olsonite, a domestic corporation located at 8801 Conant Avenue, Hamtramck, Michigan, "has discharged and continues to discharge” into the ambient air "obnoxious and foul odors” which threaten to pollute, impair or destroy the atmosphere and which endanger the health, welfare and safety of residents in the vicinity.
Olsonite, situated amid other industrial facilities and bordering residential areas to the east, north and south, manufactures molded plastic toilet seats, steering wheel inserts and various flexible plastic parts used by the automotive industry. Of these items, only the flexible plastic parts require painting at Olsonite’s plant on Conant. The parties do not dispute that, as an incident of the painting process, certain pungent odors are produced which, if unrestrained, are then emitted into the atmosphere and carried off by prevailing winds. The crux of the controversy, however, centers on the effectiveness of Olsonite’s present method of restraining its paint fumes from entering the atmosphere.
The painting operation, conducted weekdays on a single shift from 7 a.m. to 3:30 p.m., employs an overhead conveyor system by which parts to be painted are passed through a series of four paint spray booths, a flash-off chamber and a bake oven. In addition, Olsonite uses a chain-on-edge conveyor which carries parts through an enclosed painting machine. Necessary finishing is then performed in two separate paint spray booths. In all, according to defendant, there are ten potential sources from which odor may emanate.
Paint is electrostatically applied by automatic spray equipment located in front of the booths. The paint, specified by Olsonite’s customers, is a proprietary urethane enamel produced by PPG, Inc. In addition to certain known solvents that are part of PPG’s paint formula, Olsonite is required to add other solvents in connection with the painting process. Originally Olsonite utilized a solvent blend of Toluol and Xylol as recommended by PPG. During 1973, however, because of the energy crisis, these solvents became unavailable and Olsonite allegedly was required to switch to a blend containing solvents with lower odor thresholds (and thus higher odor potential) than those in the original Toluol-Xylol blend. In February 1975, the original blend became available again and has been used by Olsonite since that time. These solvent blends, it should be noted, are not water soluble.
Each of the paint spray booths is equipped with devices which form a curtain of water designed, primarily, to trap wayward particles of paint and, secondarily, to prevent the emission of odors into the atmosphere. The water curtain is maintained by a system drawing recirculated water from a tank at the base of each spray booth through a pipe to a manifold at the top of the booth. The manifold contains a number of uplifted nozzles which discharge water against and over a series of baffles controlling the flow and splash of water to form, when fully functional, a continuous curtain of water. Owing to the use of recirculated water, the nozzles at times become clogged by accumulations of paint, causing breaks in the curtain. Through these breaks, paint particles, solvents and exhaust materials escape into the stacks and thence into the ambient air. Olsonite has from time to time modified its operation in an effort to improve the water curtains by adding more baffles, using additional weirs in the water tanks, purchasing extra manifolds to replace those that become clogged and installing (four to five weeks prior to trial) a filtration system that skims excess particles from the recirculated water. In addition, Olsonite has established a procedure for periodic inspection and maintenance of its painting operations.
At the trial, the Division presented the following evidence to establish its prima facie case: 1. Five field inspectors, employed by the Division, testified regarding inspections and surveillance they conducted at or near the Olsonite facility from 1972 to the time of trial. According to their testimony, the inspectors, although not formally enrolled in odor-detection courses, did receive instruction and training on the subject. One of the inspectors, witness Zabick, described the nature of the orientation available to the Division’s inspectors:
"Q. [Mr. Donald A. Campbell, Assistant Prosecuting Attorney] I would like you to tell the Court specifically, if you can, the type of material which is contained, for instance, in the EPA [i.e., the United States Environmental Protection Agency] manuals? For instance, do they talk about technique? I mean, you said you have read manuals which deal with odor, is that correct?
"A. That is right.
"Q. Can you be a little more specific' as to what specifically you read about concerning odors?
"A. Sources of different types - of odors right from rendering plants to paint making operations to odors in steel making, types of control devices, methods of detecting it, various type charts to use to detect levels of odors, numerical system of evaluating them, methods of positioning yourself, making a complete around-the-source surveillance, up wind, down wind, the complainant’s role in determining the severity of an odor.
"THE COURT: I think that is fine, Mr. Zabik [sic]. Are these manuals available to all the inspection staff of the agency?
"THE WITNESS: Yes.”
The testimony of the inspectors essentially revealed that on frequent instances from 1973 to the date of trial they had been summoned, often by radio run and almost invariably at the behest of complaining citizens, to verify alleged odors issuing from Olsonite’s plant. The voluminous inspection reports and violation notices, entered at trial to show defendant’s knowledge that complaints had arisen, describe the alleged odors either in narrative fashion (e.g., "very high”, "very pronounced”, "pungent”, "slight odor”) or by means of a Division-adopted Odor Detection Chart, a variant of the US EPA Odor Detection Chart. Each of these detection charts employs a numerical rating system designed to eliminate the ambiguity inherent in narrative descriptions of odor intensity.
The inspectors’ testimony, backed by their reports, discloses many instances where odors specifically attributable to Olsonite’s painting process were assigned a numerical value of "2” or "2+” and, on fewer occasions, "3”. Although these odors abated at times, especially after February, 1975, when Olsonite returned to use of the Toluol-Xylol blend, the reports indicate that inspectors Gribbs, Krawiec and Zabick frequently noted in 1975 and 1976 detectable paint odors emitted by Olsonite.
2. The lower court admitted office records of the Division which indicate that the Division received 59 citizen complaints against Olsonite in 1973, 38 in 1974, 24 in 1975, and 13 as of August 31, 1976.
3. Thirteen citizens, living north, east and south of the Olsonite complex, testified at trial. These witnesses relayed to the court complaints they registered with the Division and with Olsonite concerning odors, generally characterized as paint-like, very distinctive, unpleasant and offensive, emanating from the Olsonite complex. According to the largely unrebutted testimony of the citizens, the odors caused nausea, burning eyes, headaches, loss of sleep and a reduction in appetite; in addition, the fumes penetrated their homes and were particularly obnoxious during periods of warm weather.
In instances when inspectors and citizens had been asked whether they could distinguish between odors attributable to Olsonite and those of other neighboring industries, the witnesses stated that they had no difficulty in differentiating the various smells. One inspector did mention, however, that the paint odors ascribed to Olsonite and those issuing from a nearby Chrysler facility "were somewhat similar, but there are generally differences between one type of odor from one operation to the other” that a person "very familiar with the different plants” would detect.
4. Dr. Peter Warner, the Division’s laboratory supervisor and an expert on odors and odor measurement, testified regarding various field samplings and laboratory analyses of gases emitted from Olsonite’s stacks; these tests began in November, 1972, and continued sporadically up to March, 1976.
During his testimony, Dr. Warner explained the method utilized to retrieve a sample of Olsonite’s stack effluent and then described the manner in which the relative concentration of an odor is determined in the laboratory. This latter task employs a five-member odor panel consisting of odor-sensitive individuals capable of distinguishing between three odors at successively lower concentrations. Once selected, each odor panelist is subjected to varying concentrations of stack effluent diluted with clean air and a determination is made regarding the lowest concentration at which over 50 percent of the panel can detect any odor from the samples. Thus, the greater the number of dilutions required, the more intense is the odor under scrutiny. Once the lowest concentration of stack effluent, discernible by over half of the panel, is ascertained, calculations are then made to express the concentration in odor units per cubic foot of air.
In analyzing the results of this testing, the Division has established certain recommended guidelines similar to those employed by "a number of agencies and states”; the Division’s guidelines describe odor emission levels which, if not exceeded, are "acceptable” to the Division: 150 odor units per cubic foot or one million odor units per minute (i.e., odor units per cubic foot times cubic feet of exhaust gas per minute).
The November, 1972, stack tests conducted at Olsonite by the Division showed that of the two potential emission sources tested, viz., the drying oven and flash-off chamber, both fell well within the Division’s guidelines; the report on the November tests concluded: "it is unlikely that the above source represents any appreciable community odor problems.”
Stack tests conducted in October, 1973, measuring emissions from seven sources (five paint spray booths, the flash-off chamber and drying oven) disclosed levels far exceeding the Division’s guidelines for both odor concentration and odor emission rate. These results coincided with the change in solvents necessitated by the energy crisis.
Stack testing performed in August, 1974, found odor levels in excess of the Division’s guidelines in the three spray booths tested, while the flash-off chamber and drying oven emission levels fell below the guidelines.
No testing occurred in 1975.
In March, Í976, stack tests conducted at Olsonite’s request, measuring emissions from spray booth number two, revealed odor levels (i.e., in odor units per cubic foot) below the Division’s guidelines, but emission rates (i.ein odor units per minute) slightly above the guidelines in two of four samples tested. Olsonite had requested the March tests to measure the effectiveness of using aqueous potassium permanganate as a pollution abatement technique. The tests, conducted on two occasions in March, first measured the effectiveness of the water curtain alone and then with the addition of the permanganate. Prior to the initial test, certain changes in the spray booth had been effected:
"1. Redistribution of the total paint sprayed per day to relieve the loading on the booth No. 2 stack and to more equally distribute the rate of spray to other booths which were formerly used to apply lighter coats to parts.
"2. Cleaning and improvement of the water curtain plumbing and pumping system.
"3. Installation of a baffle to reduce the water travel distance at the throat of the water curtain.” Trial Exhibit 12, p 16.
In his report on the March tests, Dr. Warner discounted the effectiveness of permanganate as an additive and noted an "apparent measured improvement” in the utility of the tested water curtain as an odor suppressant; however, he reserved judgment on the system as a whole:
"[I]t is necessary to determine any change in the odor output of the other adjacent booths and stacks, as odor sources, as a result of changes in the operation of booth No. 2, before any claim is made to an overall condition of odor abatement.” Trial Exhibit 12, p 18.
Moreover, Dr. Warner observed a deterioration in water-curtain efficiency from the first March test to the second attributable to plugged nozzles which thus "allowed an estimated 15 to 35% of the solvent mist to enter the booth No. 2 stack untreated”. Id. at 19. Nonetheless, he concluded:
"[I]n view of the apparent effectiveness achievable by water curtain improvements coupled with techniques in redistribution of solvent, this approach should be explored further by the company.” Trial Exhibit 12, p 19.
Dr. Warner amplified the point in his testimony by stating that an improved water curtain "would certainly be an excellent approach to a solution” but the reliability of the curtain "is the only unknown factor. Our experience with reliability has been very poor”. The court then asked Dr. Warner to indicate other odor abatement techniques potentially available to Olsonite. With the qualification that he was not an engineer, Dr. Warner listed the following: fume incineration (afterburners); a scrubbing system combined with a packed tower containing fragments of absorptive material; and carbon adsorption.
Following Dr. Warner’s testimony, plaintiff rested. Olsonite then moved for a directed verdict but the court denied the motion.
The first defense witness, Mr. Gerald Eggers, Olsonite’s manager of industrial engineering, described his duties, the painting process at Olsonite, the various modifications undertaken to improve the water curtain, and efforts made to obtain a positive pollution-control system for the company. According to Mr. Eggers, each of these systems— (a) odor masking agents, (b) odor counteractants, (c) scrubbers and chemical absorption systems, (d) catalytic converters, (e) afterburners, (f) tall stacks, (g) recuperative combustion devices, (h) refrigeration and, (i) activated carbon adsorption — has drawbacks that make its use unacceptable for the company.
For example, he testified that masking agents, which merely camouflage the odor, are unacceptable to the Division; that odor counteractants tested by Olsonite proved erratic and at times created additional odor; that systems based on carbon adsorption or catalytic conversion are ineffective because the paint used by Olsonite will contaminate the carbon or catalyst used in these systems, and, further, that catalytic converters pose an inherent risk of explosion; that tall stacks erected at a cost of $417,000 by Ford Motor Company for its Utica painting operation still draw citizen complaints; and that chemical absorption, using ozone, presents potential dangers created by ozone. Mr. Eggers also conveyed budgetary quotes he received for certain methods of odor control. On cross-examination, the witness often exhibited lapses of memory when questioned on the extent of his investigations into alternate odor control systems and on the identities of persons he contacted in this quest. He acknowledged, however, that no pilot tests or engineering drawings had been commissioned by defendant; that no efforts had been made to negotiate reductions in the quoted costs or to ascertain whether less expensive equipment might be used on Olsonite’s less offensive odor sources; and that he had never submitted to management a "formal capital appropriation request” for any of the proposed systems. Further, he maintained that while the companies submitting budgetary quotes promised odor reductions of 95 to 97 percent, none would guarantee the elimination of all odors.
Three additional defense witnesses followed Mr. Eggers to the stand. Mr. Edmund Szajna, defendant’s director of manufacturing, explained maintenance procedures covering Olsonite’s painting operation. Mr. Arthur W. Sempliner, Olsonite’s first vice-president, described Olsonite’s products, gave financial and employment data on Olsonite, explained an odor sampling technique conducted by Olsonite’s employees in 1976, noted the possibility that expensive odor abatement methods might entail a shutdown of the entire plant and stated that on his way to work he occasionally smells a paint odor, indistinguishable from Olsonite’s, emanating from a nearby Chrysler plant. Mr. Sempliner also offered the view that no prudent or feasible alternative to the water curtain exists which could solve Olsonite’s problem of odorous emissions. Lastly, Mr. Henry Wojtaszek, the director of Olsonite’s central staff, testified regarding defendant’s painting process, the nature of the paint and solvents employed, Ford’s limited success with tall stacks and Olsonite’s recent experimentation with spray applicators which may be able to reduce the amounts of solvent and paint used from 25 to 50 percent.
Following closing arguments, the lower court requested and received proposed findings of fact and conclusions of law from the parties. On December 15, 1976, the court issued an opinion finding, inter alia, that:
1) the "complaints [of the citizen witnesses] were justified”;
2) "the odors came from defendant’s plant”;
3) "[t]he inspection reports established the existence of a number two odor on repeated occasions throughout the period in question, and on some occasions a number three odor”;
4) "an acceptable level of odor strength is an emission of less than 150 odor units per cubic foot or a total of one million odor units per minute”;
5) "[t]he [October] 1973 tests conclusively established that defendant polluted the air contrary to the Act”;
6) the March, 1976 tests revealed "two samples out of four that exceeded acceptable levels and polluted the air”; and
7) "the use of water curtains, baffles and filters, no matter how well cleaned and maintained, is not sufficient to prevent air odor pollution.”
From the foregoing, the trial court concluded that plaintiff had "established its prima facie case”. See MCLA 691.1203(1); MSA 14.528(203X1). Next, concluding that defendant had failed to rebut plaintiff’s prima facie case, the court ruled:
"the tests [conducted] by company employees * * * are of the most self serving nature and in no way rebut the convincing testimony of the inspectors, the residents of the neighborhood, and the scientific tests of Dr. Warner. Furthermore, it is significant that not one of the company employees who conducted the tests was called to testify, subject to cross examination.” Wayne County Department of Health, Air Pollution Control Division v Olsonite Corporation, Wayne County Circuit Court No. 73-252680-CE, issued December 15, 1976, pp 7-8.
The court then surveyed existing methods of pollution control available to defendant, along with their attendant costs, and cited Olsonite’s employment and revenue figures, noted supra, in concluding that any one "of the suggested methods is economically feasible and prudent”.
Thus the court found:
"There are a variety of odor control techniques available, some of which have been listed. Defendant has failed to establish that there is no feasible or prudent alternative to the continued pollution. In fact, except for some work with the water curtain system and some minor tests with counteractants, defendant has failed to try any method and has failed in its affirmative defense to show that there is no feasible and prudent alternative.
"It is also clear that the conduct of defendant is not consistent with the promotion of the public health, safety and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution. In fact, defendant throughout, although appearing to cooperate and treat complaints with sympathy and seriousness, has failed to take any effective means to control or attempt to control the air pollution it has created. The defendant has been well aware of the pollution problem for many years, and although many solutions were potentially available, defendant failed to employ any of them except to attempt to clean up the water curtains.
"Defendant contends that it has taken affirmative action in planning a new system that will reduce the amount of paint used and involving the water curtain device. The fact remains, however, that there is no showing that these plans will solve the continuing pollution problem.” Wayne County, supra at 9-10.
Lastly, the trial court ended its opinion by making conclusions of law and ordering injunctive relief:
"IV CONCLUSIONS OF LAW
"The Court having found that plaintiff has established its prima facie case affirmatively, that defendant has failed to rebut plaintiff’s prima facie case, and that the defendant has failed to establish as an affirmative defense that there is no feasible and prudent alternative to his conduct and that the conduct is consistent with the promotion of the public health, safety and welfare, it must follow as a matter of law that plaintiff is entitled to relief.
"Defendant argues, however, that even in the face of the statute, the Court must consider the character, quality and nature of the locality where defendant operates.
"The arguments of defendant state many propositions of general nuisance law, all of which were enunciated prior to the enactment of the Environmental Protection Act of 1970. By this statute, the Legislature defined the standards to be used and the method to be determined by the Court in deciding cases where there is a claim of environmental pollution. The standards set out in the statute are clear and unequivocable, and to the extent that the prior law relating to nuisance varies from the statute, the statute must control. Plaintiff has established its prima facie case, which has not been rebutted, and defendant has failed in its affirmative defense.
"But even if general nuisance law were to be applied, plaintiff still would have to prevail. It has established by both objective and subjective standards, conduct which has polluted the air. It has established that there are feasible methods to control the pollution. And defendant has failed to rebut plaintiff’s case. It therefore follows that the plaintiff is entitled to relief.
"V RELIEF ORDERED
"It is obvious that an order must be entered enjoining the defendant from continuing to pollute the air. At the same time defendant must be given a reasonable time to reach full complaince [sic].
"To accomplish this, it is ordered that defendant forthwith at its own expense conduct pilot testing of prototype odor control systems to compile operating and odor control data. Such tests shall be monitored by representatives of plaintiff and be completed by March 1, 1977. The results shall be made available to the Court at that time.
"On or before April 1, 1977, defendant shall select a specific supplemental odor control system and timetable for its installation and completion. This system shall achieve odor emission limits of no more than 150 odor units per cubic foot and no more than one million odor units per minute under odor evaluation tests to be approved by plaintiff. Defendant shall submit to the Court its timetable for installation and completion, which shall be approved by the Court after hearing.
"If after installation of the equipment on or before a date approved by the Court, defendant at any time emits more than 150 odor units per cubic foot or one million odor units per minute under odor evaluation tests run in accordance with procedure outlined by plaintiff, plaintiff may move this Court for supplemental injunctive relief.
"The Court will retain jurisdiction of the case. Costs to plaintiff.” Wayne County, supra at 11-14.
On defendant’s motion, a panel of this Court stayed enforcement of the injunction by an order dated February 7, 1977.
In its appellate brief, defendant seeks review of four issues. The first is whether the trial court correctly ruled that the Environmental Protection Act (EPA) supplants prior doctrines of common law nuisance to the extent these doctrines conflict with the act.
Two Michigan Supreme Court cases offer insight on the issue. In Ray v Mason County Drain Commissioner, 393 Mich 294; 224 NW2d 883 (1975), Justice Williams, writing for a nearly unanimous Court, recognized the EPA as the Legislature’s response to the mandate of Const 1963, art 4, § 52:
"The Legislature in establishing environmental rights set the parameters for the standard of environmental quality but did not attempt to set forth an elaborate scheme of detailed provisions designed to cover every conceivable type of environmental pollution or impairment. Rather the Legislature spoke as precisely as the subject matter permits and in its wisdom left to the courts the important task of giving substance to the standard by developing a common law of environmental quality. The act allows the courts to fashion standards in the context of actual problems as they arise in individual cases and to take into consideration changes in technology which the Legislature at the time of the act’s passage could not hope to foresee.” 393 Mich at 306-307. (Footnote omitted; emphasis supplied.)
In a note accompanying the foregoing passage, the Court observed:
"While the language of the statute paints the standard for environmental quality with a rather broad stroke of the brush, the language used is neither illusive nor vague. 'Pollution’, 'impairment’ and 'destruc tion’ are taken directly from the constitutional provision which sets forth this state’s commitment to preserve the quality of our environment. In addition these and other terms used in establishing the standard have acquired meaning in Michigan jurisprudence. The development of a common law of environmental quality under the EPA is no different from the development of the common law in other areas such as nuisance or torts in general, and we see no valid reason to block the evolution of this new area of common law.” 393 Mich at 307, fn 10.
Similarly, see State Highway Commission v Vanderkloot, 392 Mich 159, 184; 220 NW2d 416 (1974), opinion of Williams, J.;
"It is most important to note that EPA does not, as both parties imply, merely provide a separate procedural route for protection of environmental quality, it also is a source of supplementary substantive environmental law. See Sax and Conner, Michigan’s Environmental Protection Act of 1970: A Progress Report, 70 Mich L Rev 1004, 1054-1064 (1972).” (Emphasis in Vanderkloot.)
Defendant gleans from the cited cases a requirement that the EPA be interpreted in harmony with existing Michigan law. In further support of its argument, defendant cites Crandall v Biergans, Clinton County Circuit Court No. 844, 3 ERC 1827 (1972), and an analysis of that case coauthored by Professor Sax, the initial draftsman of the EPA. See Sax and Conner, supra at 1066-1067.
In Crandall, a two-count odor-pollution suit alleging nuisance and an EPA violation, the court refused to enjoin defendant’s operation of a hog farm or to order relocation of defendant’s barn,
"so long as defendants continue their operation in a careful and husbandlike manner and use such odor control products or devices as are from time to time available and developed and are economically feasible. In short, it is the opinion of the Court that on balance the equities are in favor of defendants and that they are not maintaining a nuisance.” 3 ERC at 1830.
Turning to the EPA, the court in Crandall recognized that no standards regulating porcine odors had yet been established, see MCLA 691.1202(2); MSA 14.528(202)(2), and, disclaiming an ability to set standards on its own, interpreted § 3 of the act as "in effect saying that some balance has to be maintained between absolutely no pollution and the carrying on of activities necessary to human existence”. 3 ERC at 1831. The court then indicated that if defendants hold "the odor entering the atmosphere * * * to a practical minimum” they will have established an affirmative defense under the EPA, id.; see MCLA 691.1203(1); MSA 14.528(203X1). The court cautioned, however, that a balancing of interests on a case by case basis would be appropriate "[ujnless there are definite standards set”. 3 ERC at 1831-1832.
In commenting on the Crandall decision, Professors Sax and Conner remarked that the court apparently adopted common law standards on odor control,
"where none previously existed in legislation or administrative rules; and * * * the judge enforced those standards by finding that the defendants had complied with the policy of the EPA, a policy that is largely coextensive with the law of nuisance as he applied it in this case”. Michigan’s Environmental Protection Act of 1970: A Progress Report, 70 Mich L Rev 1004, 1067. (Emphasis supplied.)
We need not disagree with either Crandall or the Sax-Conner analysis of that case in order to reject defendant’s contention that traditional principles of nuisance law must always control in an EPA action. Crandall, unlike the present case, resorted to nuisance law because no definitive standards had been established. Here, however, the lower court, presumably on the authority of MCLA 691.1202(2); MSA 14.528(202)(2), adopted odor emission standards set by the Division.
In our view, MCLA 691.1202(2); MSA 14.528(202)(2) serves as a legislative recognition that unforeseen "changes in technology”, Ray, supra at 307, may permit the judicial adoption of standards more precise, and perhaps more exacting, than those previously required under the generalized language of the common law of nuisance. Surely, it is not unreasonable for the Legislature to have concluded that plaintiffs and defendants alike would prefer explicit but attainable standards of conduct in place of the uncertainties attending a balancing-of-the-equities analysis under the law of nuisance.
Moreover, to hold, as defendant urges, that the standards of conduct required by the EPA are coterminous with those imposed by the common law of nuisance would eviscerate the substantive facets of the act, Ray, supra at 306, and condemn as mere surplusage all but its procedural remedies. Given our state’s "paramount concern for the protection of its natural resources from pollution, impairment or destruction”, we believe the Legislature intended the EPA to supersede the common law of nuisance to the extent these respective bodies of law conflict.
Defendant also assails as erroneous and unsupported by the evidence various factual findings of the trial court. Although an appellate court reviews chancery suits de novo, we apply the "clearly erroneous” standard of GCR 1963, 517.1. See 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 596. Compare Causley v LaFreniere, 78 Mich App 250, 254-255, fn 2; 259 NW2d 445 (1977), and Miller v Magline, Inc, 76 Mich App 284, 293-294; 256 NW2d 761 (1977). Under this test, a finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made. Tuttle v Department of State Highways, 397 Mich 44; 243 NW2d 244 (1976). For convenience, our examination of the trial court’s assertedly erroneous findings will track the statute.
Prima Facie Case of Pollution
Initially it should be noted that probable as well as actual degradation of the environment may be considered in deciding whether plaintiff has made a prima facie showing of pollution. Ray, supra at 309. Moreover, the evidence necessary to establish a prima facie case "will vary with the nature of the alleged environmental degradation involved”. Id.
Defendant cites four trial court findings as clearly erroneous:
"1. The Trial Court found that there have been innumerable complaints by citizens of the area as to odors of an unpleasant nature coming from the Olsonite Plant.” (Appellant’s Brief at 38.)
"2. The Trial Court found that the [Division’s] inspection reports established the existence of a No. 2 odor on repeated occasions, and on some occasions a No. 3 odor and that repeated violation notices have been served on defendants.” (Id. at 39.)
"3. The Trial Court found the 1976 [Division] laboratory tests based upon stack samples exceeded acceptable levels and polluted the air.” (Id. at 41.)
"4. The Trial Court found that the effectiveness of the water curtain to control odorous solvent emissions is very doubtful and that it is clear that the use of water curtains, baffles and filters, no matter how well cleaned and maintained, is not sufficient to prevent odor pollution.” (Id. at 42.)
Regarding the first finding, defendant asserts that the record demonstrated "serious problems of [odor] attribution and identification”; defendant notes 1) the similarity of Olsonite’s alleged odor to that of other industrial concerns, 2) the failure to detect any number 4 odors and only a single number 3 odor in the two years prior to trial, 3) the absence of violation notices since April, 1975, and 4) the absence of scientific or medical evidence showing the harmfulness of Olsonite’s odors.
We do not find the judge’s initial finding to be clearly erroneous. The great majority of citizens and inspectors who testified remained firm in attributing the recurrent odors as emanating from Olsonite’s factory. That the intensity of the odors may have diminished in the two years preceding trial does not refute the probable environmental degradation established at trial by citizen witnesses who complained of serious physical symptoms caused by Olsonite’s odors in 1975 and 1976. Plaintiff was not obliged to offer scientific or medical evidence of health impairment, for the judge believed the "convincing testimony” of the citizens. Moreover, the absence of violation notices is explained by the inspectors’ testimony that the Division had directed them to cease issuing such notices because of Olsonite’s failure to respond affirmatively to previous notices.
Nor is the second finding clearly erroneous. Although the judge characterized a number 2 odor as "distinctly unpleasant” whereas the Division’s odor intensity schedule characterizes a number 2 odor as distinct, definite and clearly detectable, the testimony of two inspectors discloses that the Division staff did not limit the number 2 intensity to the recognition threshold as defendant asserts, but gave it a range starting at the clearly detectable level up to an odor level just short of a number 3 intensity. Since defendant does not suggest that the distinct, clearly detectable odor of its paint and solvents is by any means fragrant and since the inspectors’ reports were entered merely to show the existence of citizen complaints, we do not find the lower court’s slight misdescription to constitute clear error.
Turning to the third finding, i.e., stack samples exceeding acceptable levels and polluting the air, again we do not discern clear error in the judge’s finding that stack samples tested by Dr. Warner had exceeded and continued to exceed odor emission levels denominated "acceptable” by the Division. We are disturbed, however, by what appears to be a premature adoption of standards governing odor emissions, viz., 150 odor units per cubic foot or one million odor units per minute.
Under MCLA 691.1202(2)(a); MSA 14.528(202)(2)(a), a court may adopt an agency-approved standard after having assessed "the validity, applicability and reasonableness of the standard”. As noted, supra, Dr. Warner’s testimony relative to the Division’s standards did not clearly disclose whether other states had adopted the identical standards employed by the agency; rather, he indicated, without adequate citation, that "quite a number of agencies and states have adopted regulations which specify the emission limits of sources to a given number of odor units per cubic foot * * * [and that] [o]ther states have adopted various responses to odor problems”. Moreover, we note that the Division’s laboratory guidelines are neither officially compiled nor mentioned in the Regulation; that the guidelines do not guage the cumulative effect of multiple emission sources from a single plant; and that no showing has been made explaining why a pattern of citizen complaints is unlikely to appear at a given emission level. Without an examination of the above factors, the lower court could not have determined "the validity, applicability and reasonableness of the standard”. Thus, the judge acted prematurely in adopting the Division’s guidelines.
This holding does not, however, suggest either that the Division’s standards are indeed "deficient”, MCLA 691.1202(2)(b); MSA 14.528(202)(2)(b), or that plaintiff has failed to establish a prima facie case of pollution. The former must await further inquiry by the trial court and the latter is to be decided, infra, by this panel.
Defendant’s fourth allegation of a clearly erroneous factual finding involves the effectiveness of the water curtain as a pollution-control device. Despite the improvements in water filtration and paint spray application, the maintenance procedures employed, and the reports by Dr. Warner suggesting some improvement in water-curtain efficiency, we do not believe the lower court clearly erred in finding that the water curtains are not sufficient to prevent odor pollution. Adequate evidence supported the court’s finding: 1) many of the solvents employed are not water soluble; 2) the second test in March, 1976, conducted at Olsonite’s request under optimal maintenance procedures, revealed a deterioration of the water curtain from 15 to 35 percent since the previous test three days earlier; and 3) the March tests measured emissions from a single spray booth rather than from the system under normal operations. Thus, we do not share defendant’s definite and firm conviction that the court erred in finding the water curtain to be unreliable.
Accordingly, we hold that plaintiff satisfactorily established by preponderating evidence a prima facie case of actual and probable environmental degradation.
Rebuttal By Defendant of Plaintiff’s Prima Facie Case
Defendant challenges two trial court findings: 1) that the trial court improperly discounted the odor tests conducted by Olsonite in 1976; and 2) that "defendant has failed to rebut the existence of community odor problems in the past or present, or demonstrate that such problems will not continue into the future”. (Opinion, p 8.)
We agree with the trial court’s assessment of the weight he attached to Olsonite’s employee-conducted odor tests. The reports were prepared after institution of the present suit by employees untrained in odor detection. These self serving tests in no way measure up to the kind of "empirical studies” which are "necessary when the impact upon the environment resulting from defendant’s conduct cannot be ascertained with any degree of reasonable certainty”. Ray v Mason County Drain Commissioner, 393 Mich 294, 311; 224 NW2d 883 (1975).
To counter the court’s second finding defendant argues principally that the judge failed to note that the number of citizen complaints appeared to wane in direct relation to Olsonite’s reinstitution in February, 1975, of its Toluol-Xylol blend of solvents. This argument disregards the presence of continuing complaints in 1975 and 1976 and it presumes, somewhat myopically, that the energy shortages which necessitated the switch to higher odor-producing solvents will not recur. Given defendant’s misconceptions, we hold the trial court did not err in concluding that defendant had failed to rebut plaintiffs prima facie case.
As the present suit illustrates, then, in the absence of properly approved standards, MCLA 691.1202(2); MSA 14.528(202)(2), a case of actual and probable environmental degradation is nonetheless established where 1) numerous citizens complain over a lengthy period that foul odors, recurrently emitted from defendant’s plant, penetrate their homes and cause such adverse physical reactions as nausea, burning eyes, headaches, loss of sleep and reduction of appetite; 2) inspectors of the local health agency verify the citizen complaints; 3) defendant fails to produce the necessary empirical evidence in rebuttal; and 4) the trial court gives credence to the plaintiffs evidence while disbelieving that of defendant. In that event, unless defendant asserts and wins success on the statutory affirmative defense, the trial court, in the exercise of discretion, may order injunctive relief.
Feasible, Prudent Alternatives and Conduct Consistent With the Promotion of Public Health, Safety and Welfare
In relevant part, § 3(1) of the EPA states:
"The defendant may also show, by way of an affirmative defense, that there is no feasible and prudent alternative to defendant’s conduct and that such con duct is consistent with the promotion of the public health, safety and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution, impairment or destruction. Except as to the affirmative defense, the principles of burden of proof and weight of the evidence generally applicable in civil actions in the circuit courts shall apply to actions brought under this act.” MCLA 691.1203(1); MSA 14.528(203X1). (Emphasis added.)
We interpret the language italicized above to say that the normally applicable rules on burden of proof and weight of the evidence, requiring plaintiff to carry the burden of proving its case by preponderating evidence, Ray, supra at 309-311, shall not apply where an affirmative defense is asserted. See Haynes, Michigan’s Environmental Protection Act in its Sixth Year: Substantive Environmental Law from Citizen Suits, 53 Journal of Urban Law 589, 599 (1976) ("[0]nce a plaintiff in a MEPA lawsuit demonstrates that a defendant’s actions harm, or are likely to harm, the environment, the defendant carries a heavy burden of environmental justiffcation. This burden requires a defendant to prove that no feasible and prudent alternatives to his actions exist and that he is acting in the public interest.” [Emphasis added; footnote omitted.])
If "the private citizen [is to have] a sizable share of the initiative for environmental law enforcement”, Eyde v Michigan, 393 Mich 453, 454; 225 NW2d 1 (1975), then the only reasonable construction of the statute is to place the burden of proof not on a citizenry largely unschooled in the intricacies of environmental technology, but on a defendant who "has the underlying data and documentation upon which his choice of a given course of action is based”. Pierce, Sax and Irwin, Responses to "Thoughts on H. B. 3055”, at 4, March 20, 1970 (unpublished manuscript in the files of Professor Sax, University of Michigan Law School), quoted in Note, Michigan Environmental Protection Act: Political Background, 4 U Mich J L Ref 358, 367 fn 36 (1970). Thus we hold that a defendant asserting the statutory affirmative defense of § 3(1) of the EPA has the burden of proving same by a preponderance of the evidence.
In the present case, defendant alleges the trial court mistakenly concluded that defendant had failed to establish its affirmative defense. On reflection, we side with the trial judge.
The testimony of Dr. Warner described three examples of "known technology” which offer "solutions to odor abatement”. Moreover, defense witness Eggers acknowledged that certain companies offered to reduce Olsonite’s odorous emissions by 95 to 97 percent; indeed one company, contrary to Eggers’ testimony, offered Olsonite a thermal oxidation system backed by "an odor free guarantee [that] can be made * * * without any extensive tests”.
But defendant wants more. It asks the Division to recommend a system guaranteed to eliminate all citizen complaints. This position expects more than reality can offer and it forgets that one sense of the word feasible comprehends an approach which "is likely to work out or be put into effect successfully”.
The Division clearly does not expect perfection; rather, it requires defendant to keep its emitted fumes to a "practical minimum”. Crandall v Biergans, Clinton County Circuit Court No. 844, 3 ERC 1827 (1972). As we have found, defendant has not succeeded in minimizing its odors. Relying almost exclusively on an undependable water curtain, Olsonite has done little more than make preliminary inquiries which ceased as soon as it encountered obstacles seemingly preventing adoption of an alternative odor-abatement program. As noted, Olsonite never sought a reduction in the quoted cost of these systems, never ascertained whether less expensive abatement techniques might be used on its less egregious emission sources and never instituted pilot studies or commissioned engineering drawings. Thus, we are convinced that the lower court did not clearly err — indeed did not err at all — in finding the technical feasibility of alternative controls on odor.
With respect to the economic feasibility of alternative pollution controls, we adopt the test employed in an analogous setting under the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (OSHA). See Industrial Union Department, AFL-CIO v Hodgson, 162 US App DC 331; 499 F2d 467 (1974).
In Hodgson, the Court of Appeals for the District of Columbia Circuit, interpreting the term "feasible” as used in § 655(b)(5) of OSHA, observed:
"There can be no question that OSHA represents a decision to require safeguards for the health of em ployees even if such measures substantially increase production costs. This is not, however, the same thing as saying that Congress intended to require immediate implementation of all protective measures technologically achievable without regard for their economic impact. To the contrary, it would comport with common usage to say that a standard that is prohibitively expensive is not 'feasible.’
"[Practical considerations can temper protective requirements. Congress does not appear to have intended to protect employees by putting their employers out of business — either by requiring protective devices unavailable under existing technology or by making financial viability generally impossible.
"This qualification is not intended to provide a route by which recalcitrant employers or industries may avoid the reforms contemplated by the Act. Standards may be economically feasible even though, from the standpoint of employers, they are ñnancially burdensome and affect proñt margins adversely. Nor does the concept of economic feasibility necessarily guarantee the continued existence of individual employers. It would appear to be consistent with the purposes of the Act to envisage the economic demise of an employer who has lagged behind the rest of the industry in protecting the health and safety of employees and is consequently ñnancially unable to comply with new standards as quickly as other employers.” 499 F2d at 477-478. (Footnotes omitted. Emphasis added.)
Accord: United States v Reserve Mining Company, 380 F Supp 11 (DC Minn, 1974), applying the above interpretation to the Minnesota Environmental Rights Act, a statute modeled generally after Michigan’s EPA.
Concerning the requirement that the alternative to a polluter’s conduct be "prudent”, we approve of the interpretation advanced in Citizens to Preserve Overton Park, Inc v Volpe, 401 US 402; 91 S Ct 814; 28 L Ed 2d 136 (1971). There the Supreme Court examined the term "prudent alternative” in § 4(f) of the Department of Transportation Act of 1966, 49 USC 1653(f), and in § 18(a) of the Federal Aid Highway Act of 1968, 23 USC 138, which prohibit the Secretary of Transportation from authorizing the use of Federal funds to finance highway construction through public parks if a "feasible and prudent alternative” route exists. In unequivocal language, the Court rejected the contention that the phrase "prudent alternative” requires a comprehensive balancing of competing interests:
"[N]o such wide-ranging endeavor was intended. It is obvious that in most cases considerations of cost, directness of route, and community disruption will indicate that parkland should be used for highway construction whenever possible.
"Congress clearly did not intend that cost and disruption of the community were to be ignored by the Secretary. But the very existence of the statutes indicates that protection of parkland was to be given paramount importance. The few green havens that are public parks were not to be lost unless there were truly unusual factors present in a particular case or the cost of community disruption resulting from alternative routes reached extraordinary magnitudes. If the statutes are to have any meaning, the Secretary cannot approve the destruction of parkland unless he finds that alternative routes present unique problems.” 401 US at 411; 91 S Ct at 821; 28 L Ed 2d at 151. (Emphasis supplied.)
Similarly, see County of Freeborn v Bryson, — Minn —; 243 NW2d 316, 318 (1976).
This interpretation of "prudent alternative” is bolstered by recognition that the Legislature rejected an amendment which would have inserted the phrase, "considering all relevant surrounding circumstances and factors” before the "feasible and prudent” language of § 3(1). See, Note, Michi gan’s Environmental Protection Act: Political Background, 4 U Mich J L Ref 358, 363 (1970), and Thibodeau, Michigan’s Environmental Protection Act of 1970: Panacea or Pandora’s Box, 48 Journal of Urban Law 579, 586 (1971).
Applying the cited cases to the facts at hand, we conclude that the defendant has failed to show the technical, economic infeasibility and the imprudence of alternatives to defendant’s conduct. Although the adoption of additional pollution controls may financially burden Olsonite and adversely affect its profit margin, Hodgson, supra, we believe, in light of the revenue data noted, supra, that the company is fully able to finance the added cost of restraining odorous emissions. The costs involved do not approach "extraordinary magnitude” and no "truly unusual factors”, Overton Park, supra, refute the demonstrated prudence of alternative systems. We believe that a reasonable, cost-effective solution to Olsonite’s odor problem can be achieved if an earnest examination of other abatement methods is made. Defendant’s conduct, then, will no longer be inconsistent with the promotion of public health, safety and welfare in light of Michigan’s paramount concern for the natural resources of the state.
In its final claim of error, Olsonite decries as too drastic the injunctive relief ordered by the trial court and asserts that the judge erred in failing to recognize and exercise his discretion before issuing an injunction.
We disagree.
The trial court’s decree has been narrowly drafted. It awards relief to plaintiff while permitting defendant a reasonable time to comply and affording it an opportunity for further hearing. Although the court expressed the need for injunction in mandatory terms, we are certain the learned judge, having studiously followed the commands of Ray, supra, clearly understood that the granting of equitable relief is a discretionary decision under MCLA 691.1204(1); MSA 14.528(204)(1). Ray, supra at 305.
Accordingly, the trial court is directed to conduct, as soon as practicable, a new hearing consistent with the requirements of MCLA 691.1202(2); MSA 14.528(202)(2), as outlined previously. In its discretion, the court may then 1) specify an appropriate standard (which may be the same, more strict or possibly, but improbably, less strict than that previously approved) governing odor emissions, 2) incorporate the chosen standard into its decree, and 3) set new compliance dates for the selection, installation and completion of a specific supplemental odor control system ultimately selected by defendant.
In the meantime, defendant is ordered to begin forthwith at its own expense the comprehensive examination of alternative odor restraints that should have occurred months and years ago. This effort shall be monitored by knowledgeable representatives of plaintiff and both parties shall prepare reports for submission to the trial court on a date set by that court. This date may be the same or different than the hearing date above. GCR 1963, 820.1(7).
Nothing in the foregoing order shall prevent defendant from seeking to further improve the efficiency of its water curtain or to investigate paint spray applicators which reduce the amount of paint or solvents utilized in its painting process.
Affirmed in part and remanded for proceedings consistent with this opinion.
No costs, a public question being involved.
The Regulation, in pertinent part, provides:
"Section 6.5 General Prohibition:
"a. It shall be unlawful for any person to permit or cause the emission of such quantities of air contaminants from whatever source in such place or manner as to be detrimental to any person or to the public or to endanger the health, comfort, or safety of any person or the public, or in such manner as to cause injury or damage to property or business.”
"Section 1.3 Definition of Terms. * * *
"Air Contaminant: Any gaseous, liquid, or solid matter, which when present in the outdoor atmosphere contributes to a condition of air pollution, including, but not limited to dust, soot, mist, smoke, fumes, flyash, cinders, gases, vapors, aerosols, and odors. (Emphasis added.)
"Air Pollution: The presence in the outdoor atmosphere of one or more air contaminants or combinations thereof in such quantities and of such duration and characteristics which are or may tend to be injurious to human, plant, or animal life, or property, or which interfere with the comfortable enjoyment of life or property or the conduct of business.”
According to defense witness Edmund Szajna, Olsonite’s director of manufacturing, maintenance of the painting operation at the time of trial included:
a) daily scraping of excess paint from the spray booths; twice daily skimming of each booth’s water tank; and thrice daily replacement of the water filters on booths 2 and 3.
b) dismantling and cleaning of two spray booths and changing of manifolds on these booths each weekend.
c) weekly inspection, and cleaning (where necessary) of roof exhaust stacks.
d) unplugging of nozzles at the end of the shift, whenever the paint foreman observed water-curtain deterioration. On approximately six occasions in the three years prior to trial, the paint line had been shut down to permit such emergency repairs. Thus, if unobserved deterioration of the water curtains occurred, untreated exhaust fumes were released into the atmosphere.
“Schedule of Odor Intensity
"0 A concentration of an odorant which produces no sensation.
"1 Concentration which is just barely detectable.
"2 A distinct and definite odor whose characteristic is clearly detectable.
"3 An odor strong enough to cause a person to attempt to avoid it completely.
"4 An odor so strong as to be overpowering and intolerable for any length of time.” Plaintiffs Exhibit #2, p 36-E.
"Concentration
"0 — A concentration of an odorant which produces no sensation.
"1 — Concentration which is just detectable (the threshold dilution).
"2 — A distinct and definite odor whose unpleasant characteristics are revealed or foreshadowed (the recognition threshold).
“3 — An odor strong enough to cause a person to attempt to avoid it completely.
"4 — An odor so strong as to be overpowering and intolerable for any length of time.” Defendant’s Exhibit #3.
The method is similarly, but more concisely, described in a November, 1975 report co-authored by Dr. Warner:
"Odor Sampling Procedure
"Samples for * * * evaluation are collected by withdrawing source effluent through a twelve inch long glass or stainless steel probe into a 300 ml gas pipet by means of a 75 ml rubber aspirating bulb attached to the exit end of the pipet. Connections are made with a one to one and one-half inch piece of tygon tubing. Sixty squeezes are considered adequate to overcome such effects as wall absorption. Glass gas sampling bottles have stopcocks at each end to insure the integrity of each collection.” Plaintiffs Exhibit #12, p 6.
The only trial testimony on the point is this:
"Q. [Mr. Campbell, Assistant Prosecuting Attorney] Dr. Warner, you have used a figure of 150 odor units per cubic feet [sic]. Are there any other agencies in the country that use these same guidelines?
"A. Yes, quite a number of agencies and states have adopted regulations which specify the emission limits of sources to a given number of odor units per cubic foot. For example, the State of Minnesota, Connecticut, Illinois—
"MR. FINEMAN: [Attorney For Defendant] (Interposing) I am going to object, your Honor. What has been done in other states at this point is irrelevant until it is shown that the State of Michigan or this County or anybody else that we are concerned with has done so. There is nothing in this record and in fact there is nothing in existence that indicates this State or this County or agency has adopted anything that has the binding force of law.
"THE COURT: Well, I am interested in what they are doing. I want to learn something about it. Go ahead.
"THE WITNESS: Other states have adopted various responses to odor problems.” Trial Transcript November 30, 1976, pp 50-51.
"The term 'acceptable’ is used to describe a condition in which no pattern of citizen odor complaints has developed to relate any odor source or odor relatable process to an odor nuisance in the community as confirmed by the appropriate district inspector.” Plaintiffs Exhibit #12, p 7.
TABLE I
U-100 PAINT LINE OCTOBER 1, 1973 ODOR SAMPLING SUMMARY
Odor Units/ft3 at 50% of Panel
Sampling Reporting Positive Emission Rate Sampling Designation Olfactory Response CFM Odor Units/Minute Temp. °F
Spray Booth
No. 2 940 13,900 13,100,000 70
Spray Booth
No. 3 440 13,900 6,120,000 72
Spray Booth
No. 4 7000 13,900 97,300,000 72
Flash Off
Chamber 390 3,500 1,370,000 100
Drying Oven 2000 2,500 5,000,000 190
TABLE II
VINYL PAINT LINE OCTOBER 2, 1973 ODOR SAMPLING SUMMARY
Odor Units/ft3 at 50% of Panel
Sampling Reporting Positive Emission Rate Sampling Designation Olfactory Response CFM Odor Units/Minute Temp. °F
Spray Booth No. 5
(Top Coat) 7 10,000 70,000 70
Spray Booth No. 7
(Chain-On-Edge) 1850 2,500 4,630,000 72
Flow rate from Olsonite Company
Flow rate from Olsonite Company
Plaintiffs Exhibit # 12, p 8.
TABLE I
Sampling Site Odor Level ou/ft3
Booth #2 2800
Booth #3 370
Booth #4 171
Flash-Off Chamber 115
Oven 39
Plaintiffs Exhibit # 12, p 13.
"Results
Odor Level Emission Rate
Sample Date and Description • ou/ft3 (ou/min)
Sr S2 Si 3-9-76 3-9-76 3-12-76 Water curtain only Water curtain only Water curtain with 43 21 103 488.000 238.000 1,165,000
1-1/2 percent aqueous potassium permanganate
3-12-76 Water curtain with 97 1,098,000
1-1/2 percent aqueous
potassium permanganate
Note figure 1 and 2.”
Plaintiffs Exhibit # 12, p 18.
These budgetary figures, which may vary by 10 percent in either direction, are:
(a) Afterburner — capital investment: $816,000-$1,200,000; annual operating cost: $160,000 to $580,000, varying inversely with initial capital cost.
(b) Scrubber with chemical packed tower — capital investment: $814,000; annual operating cost: not ascertained.
(c) Catalytic converter — capital investment $514,000 to $939,000; annual operating cost: $150,000-$300,000, varying inversely with initial capital cost.
The reason the annual operating costs of afterburners or catalytic converters vary inversely with the initial capital cost is that the larger capital investment includes heat exchangers, devices which will recoup a portion of the energy spent on odor incineration for use in heating factories or firing ovens. Thus, as letters to Olsonite from manufacturers producing such equipment assert, heat exchangers may well provide "fuel economies” or "a substantial total energy cost reduction."(Emphasis in original.)
We also note that the figures quoted above presume that the same type of equipment will be used on Olsonite’s ten odor sources, irrespective of the amount of emissions emanating from any single source, and further, that structural changes in Olsonite’s plant will not be necessary.
Olsonite employs between 600 and 700 salaried and hourly employees at its Hamtramck facilities with an average weekly payroll of about $150,000. These facilities represent a current investment in plant and equipment of approximately $20,000,000.
The total annual sales generated by Olsonite from its Hamtramck operations roughly exceed $34,000,000. Of this amount, approximately $11,000,000 is attributable to the painted parts operation. The annual gross profit on only the painted parts operation is approximately $1,250,000.
The record does not disclose financial data on Olsonite’s operations nationally, the annual gross profit of Olsonite’s Hamtramck facility or the number of employees assigned to the painted parts operation.
In addition, it should be noted that Olsonite bids competitively with other suppliers for the opportunity to provide Detroit automakers with painted parts. At present, Olsonite is the sole, outside supplier of such parts.
Const 1963, art 4, § 52 provides:
"Sec. 52. The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.”
"(2) In granting relief provided by subsection (1) where there is involved a standard for pollution or for an anti-pollution device or procedure, fixed by rule or otherwise, by an instrumentality or agency of the state or a political subdivision thereof, the court may:
"(a) Determine the validity, applicability and reasonableness of the standard.
"(b) When a court finds a standard to be deficient, direct the adoption of a standard approved and specified by the court.” MCLA 691.1202(2); MSA 14.528(202X2).
Emphasis supplied.
See also the similarly phrased provision in Const 1963, art 4, § 52.
This holding obviates discussion of defendant’s second issue, namely, whether Olsonite’s operation constitutes a nuisance. We would note, however, a compelling factor militating against defendant’s victory on this issue: Defendant’s painting operation began after the establishment of adjacent residences. Thus, the citizens have not "come to the nuisance”. See, e.g., Robinson v Baugh, 31 Mich 290, 293 (1875).
The Supreme Court would be well advised to reconcile the apparent conflict between the "clearly erroneous” test of GCR 1963, 517.1 and the de novo standard applied in equity actions. In a given case, the particular standard of review may well determine the victor on appeal.
Similarly, as reflected by the following citizen testimony, typical of at least two others, the diminution of citizen complaints may well have been attributed to futility rather than a reduction in odor:
"Q. [Attorney For The Defendant] [Y]ou have only made one complaint for all of 1976?
"A. [Witness] Eight, only one.
"Q. And that was on June 11th, 1976?
"A. I think so.
"Q. You haven’t had occasion to complain since then?
"A. The smell is there, but for personal reasons I would not state why I did not call.
"Q. You would not state why you didn’t call?
"A. Yes, because of frustration. The whole neighborhood is frustrated with this thing for being dragged out for such a length of time, so I did not call on every occasion.
"Q. Didn’t stop you in the past, did it?
"A. Well, from the beginning I was very much interested in the cause. After I retired, I thought I was going to have some peace and quiet, and I face this now. And trying to get something done about it and having it just drag on and on * * * ” Tr. November 29, 1976, p 31.
This factor suggests that the Division’s guidelines may be too lax.
"[T]he 'exception’ for the 'affirmative defense’ is somewhat ambiguous. If in fact section 3(1) makes an exception from the common law rule that the burden of establishing such a defense is on its proponent, it fails to state what rule shall govern. Accordingly, an assumption must be made that no 'exception’ is in fact created.” Thibodeau, Michigan’s Environmental Protection Act of 1970: Panacea or Pandora’s Box, 48 Journal of Urban Law 579, 584, fn 16 (1971).
Webster’s Third International Dictionary, p 1771 (1965), distinguishing "feasible” from "possible” and "practicable”. (Emphasis added.) See also, id., at 831, "feasible”, definition 3.
"The Secretary * * * shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suifer material impairment of health or functional capacity * * * .” (Emphasis added.)
We suspect that improvements in water-curtain efficiency and paint-spray application may well reduce the total volume of odor to be restrained by supplemental controls. This should appreciably lower the cost of such controls.
Moreover, we anticipate (without so holding given the inexact financial data, fn 12, supra) that a good faith effort will uncover other cost savings which should obviate the need for employee dismissals. | [
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Per Curiam.
Defendant was charged with first-degree murder contrary to MCLA 750.316; MSA 28.548 in the shooting death of his girl friend Doris Fowler, at their common residence in Detroit. A jury trial was had and defendant was convicted of second-degree murder. He appeals as of right.
While the transcript is voluminous the evidence does not contain any major inconsistencies. Defendant admitted, and the other testimony corroborated the facts, that he and his girl friend had been bickering all day. In the late afternoon this apparently came to a head when for no apparent reason he ran upstairs and grabbed a .22 rifle and she went in the kitchen and returned with a kitchen knife.
Defendant’s testimony shows that in the narrow confines of their small house he fired two "warning shots” into the ceiling to ward off the decedent. He then chased her with the gun and fired several shots into her back as she ran and tried to escape out the front door which was locked with a key from the inside and was the only means of egress from the dwelling.
Defendant claims the trial judge erred by instructing the jury that defendant had a duty to retreat if he could have safely done so in order to establish the defense of self-defense. The well established law is that there is no duty to retreat in the face of an attack when it occurs in the home where both the assailant and the assailed have an equal right to be, and that the instruction given was erroneous. People v Lenkevich, 394 Mich 117; 229 NW2d 298 (1975).
Under most circumstances the instruction given would have been prejudicial error. However, in the case at bar we are convinced beyond a reasonable doubt said error was harmless. That such error can be harmless was recognized by this Court in People v Moore (On Rehearing), 77 Mich App 134, 136; 258 NW2d 164 (1977). The standard for judging whether error is harmless is a stringent one; however, if the proof, aside from the taint of error, was so overwhelming 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), People v Roberson, 55 Mich App 413, 421; 222 NW2d 761 (1974), People v Swan, 56 Mich App 22, 31; 223 NW2d 346 (1974).
The evidence in the present case compellingly establishes that the defense of self-defense was not available to defendant for failure to present any evidence whatsoever that the use of deadly force appeared to defendant to be necessary. No reasonable juror could have found, absent the instructional taint, that defendant acted in self-defense.
This Court in People v Moore, supra, at 136, recognized that there was no prejudice to the defendant where giving an "instruction on self-defense, although erroneous on the aspect of retreat, was, if anything, beneficial to the defendant”. Where, as here, the instruction provided a basis for defendant’s acquittal, rather than for conviction, the injection of an issue not supported by the evidence does not constitute reversible error.
Affirmed. | [
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A. E. Keyes, J.
Plaintiffs commenced suit against Town and Country Lanes on July 12, 1976. Margaret Tate claimed damages for injuries she sustained when, while on defendant’s premises as an invitee, she fell on ice and snow in defendant’s parking lot. In response, defendant asserted, inter alia, the affirmative defense that plaintiffs had, on July 25, 1975, executed a release of all claims against the defendant. On this basis defendant moved for an accelerated judgment of dismissal which was granted in an order dated October 7, 1976.
On appeal from this order plaintiffs contend that the release is not binding because its execution was based upon a mutual mistake of law and because there was inadequate consideration.
We find that the consideration paid to plaintiffs, $133.80, was adequate.
Under some circumstances a release will be set aside for a mutual mistake of the law if certain other factors are present. Was there a mutual mistake of law in the instant case? Plaintiff argues that the release was executed under a mutual mistake of law in that at the time of execution the parties believed that the case law in Michigan, as reflected in Quinlivan v The Great Atlantic & Pacific Tea Co, Inc, 51 Mich App 242; 214 NW2d 911 (1974), would have made litigation "fruitless”, but that this was not the true state of the law since on appeal in Quinlivan v The Great Atlantic & Paciñc Tea Co, Inc, 395 Mich 244; 235 NW2d 732 (1975), the prior case law was overruled. To buttress their contention, plaintiffs cite the following language from Chuby v General Motors Corp, 69 Mich App 563, 566-568; 245 NW2d 134 (1976), which involved circumstances significantly similar to those in the instant case:
"Plaintiff argued that it would have been absurd for plaintiff to intend to release defendant from liability resulting from deprivation of society and companionship for the reason that, at the time the release was executed, the law in Michigan apparently held that no such liability existed. See Breckon v Franklin Fuel Co, 383 Mich 251; 174 NW2d 836 (1970). As it developed, the apparent law was not the law, as Smith v Detroit, 388 Mich 637; 202 NW2d 300 (1972), held that the Breckon decision was incorrect. Therefore, when the releases in the instant case were executed, the law indicated that there could be no recovery for loss of society and companionship. However, the Smith case retroactively changed that result as to causes of action accruing before March 30, 1972. It appears, however, that the trial court concluded improperly that even a cause of action which was mistakenly believed not to exist was released because of the all-inclusive language contained in the instant releases.
" * * * In Denton v Utley, 350 Mich 332; 86 NW2d 537 (1957), * * * the Court stated:
" 'To put it affirmatively, any release, to be sustained, must be "fairly and knowingly” made.’
" ' "If fraud or mutual mistake has induced the making of an unconscionable contract, courts ought to be more concerned about granting relief, than desirous of clinching future wrongs by making such contracts incontestable.” ’ ”
Defendant’s counter argument is:
"The Quinlivan decision, decided some four months after Plaintiffs’ signature of the release, was not made retroactive. Thus, Plaintiffs and their attorney as well as Defendant and its representatives were not laboring under a mutual mistake of law.”
The question of retroactivity is decisive in this case. The Chuby opinion shows that it was dealing with a retroactive change in the law:
"However, the Smith case retroactively changed that result as to causes of action accruing before March 30, 1972.”
In Chuby the plaintiff had a cause of action at the time the release was executed but none of the parties were aware of that fact because the case which retroactively decided that a cause of action existed had not yet been decided. Thus, none of the parties knew, nor could they have known, at the time the release in Chuby was executed, what the "true” state of the law was. The Chuby parties were therefore necessarily mistaken as to the state of the law when the release was executed.
In the instant case, the release was executed on July 25, 1975. The Supreme Court’s Quinlivan decision came on November 25, 1975. A reading of that opinion shows that it was not expressly made retroactive. We must assume that the new ruling was intended to be applied to all pending and future decisions. See Plumley v Klein, 388 Mich 1, 8; 199 NW2d 169 (1972), Womack v Buchhorn, 384 Mich 718, 725-726; 187 NW2d 218 (1971), Daley v LaCroix, 384 Mich 4, 14; 179 NW2d 390 (1970).
Not being retroactive, the Quinlivan decision does not suffice to invalidate the release. There was no mutual mistake of law.
Affirmed. Costs to defendant. | [
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D. E. Holbrook, Jr., J.
In this cause the trial court denied a divorce, commenced under the "no-fault” divorce statute, MCLA 552.6; MSA 25.86, on the basis of condonation. Plaintiff appeals as of right. We reverse.
According to an agreed statement of facts submitted by counsel pursuant to the provisions of GCR 1963, 812.10 the pertinent facts relevant to the instant action appear to be that (1) plaintiff filed her complaint for divorce on June 10, 1976; (2) the parties continued to reside in the family home thereafter due to illness of the plaintiff and continued periodically to share the matrimonial bed in an attempt at reconciliation; (3) after all hope of reconciliation had passed the parties engaged in sexual relations on at least one occasion with the last incident occurring on October 6, 1976; (4) after October 6, 1976, defendant periodically continued to reside in the matrimonial home from time to time but no sexual intercourse took place; (5) hearing on plaintiffs complaint was held on December 7, 1976; (6) plaintiff testified that the objects of matrimony had been destroyed due to her husband’s excessive drinking and acts of violence stemming therefrom and further that there was no reasonable likelihood that the marriage could be preserved; (7) defendant admitted he had a drinking problem, that he had used violence against plaintiff prior to the institution of the divorce action, acknowledged that he refused to cease his consumption of alcoholic beverages, agreed he had refused the request of his wife to receive help from an alcohol abuse center, and accepted as true his wife’s testimony that there had been a breakdown in the marriage relationship to the extent that the objects of matrimony had been destroyed and that there remained no reasonable likelihood that the marriage could be preserved.
Upon conclusion of proofs the trial court denied the divorce on the grounds that the parties’ continued cohabitation, after any hope of reconciliation had passed, constituted condonation and that divorce was therefore barred under the laws of this state.
We hold that with the adoption of "no-fault” came the demise of "fault” both as it pertains to grounds for and defenses to a divorce action in the State of Michigan. Under Michigan law the only issues for the trial court’s consideration, in a divorce action, are contained in MCLA 552.6; MSA 25.86, which reads as follows:
"(3) The court shall enter a judgment dissolving the bonds of matrimony if evidence is presented in open court that there has been a breakdown in the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.”
Should the trial court find in the affirmative as to both criteria set forth above it is mandatory that the court grant a divorce. If the court finds in the negative as to either of the above criteria the court shall deny the divorce.
In Cowsert v Cowsert, 78 Mich App 129, 132; 259 NW2d 393 (1977), a panel of this Court stated:
" * * * we * * * hold that a marriage is based on more than just sex so that an isolated instance of sexual intercourse occurring after the commencement of a divorce action but more than one year prior to trial is not, in and of itself, a sufficient basis to deny a divorce under the 'no-fault’ divorce statute.”
While the facts in the instant case differ from the facts in Cowsert we reiterate our holding therein "that a marriage is based on more than just sex”. Here the plaintiff testified and defendant admitted that he drank to excess and had exercised acts of violence upon the plaintiff following his bouts with drinking. He further testified that he refused to cease his consumption of alcoholic beverages despite plaintiff’s request that he do so and also seek help from an alcohol abuse center. Defendant further admitted that the foregoing had placed an undue strain upon the marriage and testified that plaintiff’s testimony to the effect that there had been a breakdown in the marriage relationship to the extent that the objects of matrimony had been destroyed and that there remained no reasonable likelihood that the marriage could be preserved was in fact true.
We wish to note that the last act of sexual intercourse occurred 62 days prior to the date of. hearing. It should be further noted that no children were born of the marriage and had the complaint been filed on October 7, 1976, rather than when it was, testimony could have been taken on December 7, 1976, since 60 days would have elapsed from the filing of the complaint to the taking of testimony. MCLA 552.9f; MSA 25.89(6). Had such been the case, on the basis of the agreed statement of facts before us, the trial court would have been obliged to grant a judgment of divorce.
While the trial court, under the no-fault divorce statute, may consider the fact that the parties continued to live together as husband and wife after the filing of the complaint for divorce and continued to have sexual relations even subsequent to an attempt at reconciliation in determining the criteria set forth in MCLA 552.6; MSA 25.86 it should also consider all of the facts, such as those set forth above, in determining whether the criteria of the statute have been met. It may not simply label sexual intercourse condonation and deny divorce on the basis thereof since condo-nation was a fault defense which no longer exists.
Reversed and remanded for redetermination or further testimony, at the trial court’s discretion, according to the standards set forth in this opinion. | [
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D. F. Walsh, J.
Defendant appeals from a decision of the Workmen’s Compensation Appeal Board ordering it to pay plaintiff partial disability compensation from August 30, 1973, until further order of the board.
Plaintiff began working for defendant, a manufacturer of fiberglass products, in March, 1970. Plaintiff’s job duties at various times consisted of rolling out fiberglass, spraying it into a mold, and grinding, sanding and patching hardened fiberglass. Three times during the course of her employment plaintiff developed a rash on her hands, elbows, knees and the trunk of her body. Each time plaintiff received medical attention and resumed working. The rash subsequently reoccurred and plaintiff did not return to work after May 12, 1972.
Defendant voluntarily paid, plaintiff worker’s disability compensation from her last day of work until November 23, 1972, at which time it ceased payments on the basis that medical reports indicated that plaintiff was again employable. Plaintiff petitioned the Bureau of Workmen’s Compensation for a hearing on her right to continued compensation which hearing was conducted on August 30, 1973.
At the hearing plaintiff testified that she left defendant’s employ on the advice of the two doctors with whom she treated at the company’s direction, Dr. McClellan and Dr. Nowland. Because there was fiberglass throughout defendant’s factory, plaintiff was of the opinion that she was unable to perform any job on the premises.
In June, 1972, plaintiff sought job training through the Vocational Rehabilitation Services Division of the Michigan Department of Education. Through the department plaintiff enrolled in a two-year program at Macomb County Community College for training as a medical laboratory technician. The college required registration one year in advance. Plaintiff registered, therefore, and then took several courses during the year prior to formal entry into the program. As a result, her course load was reduced and she was able to work part-time during her two-years of training.
Plaintiff testified that during the summer of 1973, she applied for full-time work at a minimum of three factories, all three of which eventually offered her a job. However, since plaintiff had already accepted part-time employment as a drugstore clerk so as to be able to attend school, she refused the offers.
Plaintiff introduced letters from Dr. McClellan and Dr. Nowland and the deposition of Dr. Andrew Segal in which the doctors attributed plaintiff’s condition to her exposure to fiberglass. The deposition of Dr. Plotnick, introduced into evidence by the defendant, stated that plaintiff’s rash was the result of exposure to epoxy or hardeners, and not fiberglass.
James Bennett, production manager of Richmond Products, testified that plaintiff could work in the plant as a crib supply attendant or an inspector without exposure to epoxy or free fiberglass and offered either position to plaintiff.
In his decision, the hearing referee found that plaintiff was totally disabled from May 13, 1972, to August 30, 1973, and ordered defendant to pay plaintiff $95 per week for that period. The referee also found, however, that, as a definite job offer within plaintiff’s physical capabilities had been made at the hearing, plaintiff’s refusal to accept the offer terminated her right to compensation as of that date.
Plaintiff appealed the referee’s decision to the Workmen’s Compensation Appeal Board arguing that neither position offered by defendant was within her physical limitations and that, in any event, she should not be required to discontinue her rehabilitation efforts. Defendant denied plaintiff’s first contention and argued that since plaintiff voluntarily rejected favored work in order to pursue the training program, she was precluded from receiving further benefits.
In an opinion signed by three members, the board found that the work offered plaintiff was not within her medical limitations as she would continue to be exposed to the pollutants to which she was allergic. The majority opinion further held that even if the jobs met plaintiff’s physical capabilities, her refusal was justified as she was cooperating fully in her rehabilitation by pursuing a course of study approved by the Michigan Department of Education. The order, signed by four members, provided:
"[T]he decision of the Hearing Referee in this cause shall be and it hereby is modified, and defendant shall pay $95.00 per week from May 12, 1972, to the date of trial (August 30, 1973), and thereafter in accord with the provisions of 418.361 CL 1970 (partial disablement) until further order of the Bureau.”
On appeal defendant challenges the decision of the Workmen’s Compensation Appeal Board regarding the offered employment as unsupported by the record and legally incorrect, attacks the award of partial disability compensation as similarly unsupported, argues that a job offer by another subsidiary of defendant’s parent corporation constituted an offer of favored work by the defendant, and assails the board’s opinion as inadequate in failing to enunciate the testimony relied upon, the law applied and the reasoning followed.
Findings of fact of the Workmen’s Compensation Appeal Board, where supported by competent, material and substantial evidence on the whole record, are conclusive in the absence of fraud. Questions of law may be reviewed. Const 1963, art 6, §28, MCLA 418.861; MSA 17.237(861), Galac v Chrysler Corp, 63 Mich App 414; 235 NW2d 359 (1975).
In the case at bar, the Workmen’s Compensation Appeal Board, in deciding that defendant’s job offers were not within plaintiffs capabilities, applied the correct legal standard and its decision is fully supported by the record. **4 Given the present state of the record, however, this Court is unable to review the board’s award of partial disability benefits.
In order to permit this Court to review its decisions properly the Workmen’s Compensation Appeal Board must indicate the testimony adopted, the standard followed and the reasoning used in reaching its conclusion. Leskinen v Employment Security Commission, 398 Mich 501; 247 NW2d 808 (1976), Moore v Gundelfinger, 56 Mich App 73; 223 NW2d 643 (1974). In the present case, the Workmen’s Compensation Appeal Board simply ordered that plaintiff be paid partial disability benefits as of August 30, 1973. Plaintiffs right to such benefits is not discussed at all in the controlling opinion. This Court is unaware of the legal standard applied, the testimony relied upon and the board’s reasoning. Therefore, the present case must be remanded so that the board can supply the information necessary for appellate review. In doing so, the board is to be guided by the following legal principles.
Under the Workers’ Disability Compensation Act it is the loss of wage earning capacity and not the actual loss of wages which is compensable. Sims v R D Brooks, Inc, 389 Mich 91; 204 NW2d 139 (1973), Miller v Midwest Foundry Corp, 57 Mich App 761; 226 NW2d 721 (1975). MCLA 418.361; MSA 17.237(361) provides:
"While the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid to the injured employee a weekly compensation equal to 2/3 of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter * * * (Emphasis supplied.)
See, also, MCLA 418.371; MSA 17.237(371). A claimant’s wage earning capacity following his injury is a question of fact. Hlady v Wolverine Bolt Co, 393 Mich 368; 224 NW2d 856 (1975), Ward v Detroit Board of Education, 72 Mich App 568; 250 NW2d 130 (1976). Wage earning capacity is not limited to wages actually earned although that is one factor to be considered. Hood v Wyandotte Oil & Fat Co, 272 Mich 190; 261 NW 295 (1935), Medacco v Campbell, Wyant & Cannon Foundry Co, 48 Mich App 217; 210 NW2d 360 (1973). Also to be considered are the capacity of the claimant to work and the opportunity to obtain suitable employment. Hood v Wyandotte Oil & Fat Co, supra, Pulley v Detroit Engineering & Machine Co, 378 Mich 418; 145 NW2d 40 (1966). The burden of proving a reduced earning capacity is upon the plaintiff. Pulley v Detroit Engineering & Machine Co, supra, Hlady v Wolverine Bolt Co, supra.
The controlling opinion of the board in the present case indicates that a majority of the members were persuaded to award plaintiff partial disability benefits because of her efforts to acquire a new job skill. We too find plaintiffs educational pursuits commendable. Nevertheless, on remand, the reduction in plaintiffs availability for employment due to her studies is not to be considered in determining whether plaintiffs wage earning capacity has been reduced unless she first obtains an adjudication that defendant is financially responsible for her training as a medical laboratory technician.
One of the purposes of testing the right to worker’s disability benefits by a reduction in wage earning capacity, rather than solely by a reduction in wages actually earned, is to preclude a claimant from benefiting from a unilateral decision to refrain from employment. Hood v Wyandotte Oil & Fat Co, supra, Pulley v Detroit Engineering & Machine Co, supra. In the present case, if plaintiffs studies represent a personal choice regarding career objectives, rather than rehabilitation necessitated by her work-related injury, the defendant is not responsible for that aspect of plaintiffs diminished earning capacity.
The Worker’s Disability Compensation Act provides for the possibility of vocational rehabilitation benefits at the employer’s expense. MCLA 418.319; MSA 17.237(319). By providing for such benefits, the Legislature sought to encourage an injured employee to reequip himself for the labor market. In order to maintain the inducement, an award of rehabilitation benefits is not to affect the right of an employee to the benefits provided by MCLA 418.361; MSA 17.237(361). Barrett v Bohn Aluminum & Brass Co, 69 Mich App 636; 245 NW2d 147 (1976). During the period of rehabilitation, therefore, reduction of a claimant’s capacity to work by the time spent retraining is a factor to be taken into account in assessing a claimant’s wage earning capacity. Failure to do so results in placing a premium on the acquisition of a new job skill.
The instant case does not present such a situation. The record contains no indication that plaintiff initiated the statutory procedure for determining her right to vocational rehabilitation benefits by petitioning the director of the Workmen’s Compensation Bureau for a hearing on the matter. The fact that plaintiff, upon following the proper procedure, might have been entitled to rehabilitation benefits, does not permit the Workmen’s Compensation Appeal Board simply to order partial disability benefits in their stead.
Following the release of this opinion, plaintiff will be permitted 30 days within which to petition the director of the bureau pursuant to MCLA 418.319; MSA 17.237(319), should she so desire. If it is determined that plaintiff’s training as a lab technician is chargeable to defendant, the time which such studies require is a factor to be considered in assessing her wage earning capacity. If the director rejects plaintiff’s claim, or if plaintiff fails to take advantage of the opportunity presently offered, the board is to determine plaintiff’s wage earning capacity without regard to the effect of the training program upon plaintiff’s job availability.
Defendant’s final contention that an offer of employment by Gemini Corporation constituted an offer of favored work by the defendant was not raised before the Workmen’s Compensation Appeal Board and, therefore, need not be addressed by this Court. Kushay v Sexton Dairy Co, 394 Mich 69; 228 NW2d 205 (1975), Medacco v Campbell, Wyant & Cannon Foundry Co, supra. On remand, however, the appeal board in the exercise of its discretion may permit the defendant to raise the issue. Kushay v Sexton Dairy Co, supra.
Remanded for proceedings consistent with this opinion. Jurisdiction is retained. The Workmen’s Compensation Appeal Board shall certify its decision to this Court within 30 days following a determination as to plaintiffs right to vocational rehabilitation benefits, or, if no such ruling is sought, within 30 days following expiration of the time permitted plaintiff for the filing of a petition seeking such benefits. Thereafter, defendant will have 20 days to file a supplemental brief should it so desire. If defendant does so, plaintiff will be permitted 20 days within which to respond.
No costs, each party having partially prevailed.
Plaintiff initially testified that she applied to four factories for employment, one of which was Gemini Corporation, and received offers from all four. James Bennett, subsequently called by the defense, testified that Gemini was another subsidiary of defendant’s parent corporation, PRF Industries. When asked for his reaction to plaintiffs possible testimony that she was refused employment at Gemini because no openings existed, Bennett responded that the company had been looking for employees and that such testimony would be untrue. Plaintiff thereafter took the stand, admitted that her earlier testimony was misleading, and testified that Gemini was refusing applications for employment at the time she sought a job there. Given our decision, we need not resolve the testimonial dispute.
A concurring opinion reversed the referee’s termination of benefits on the first ground alone. In a dissenting opinion, the fifth member of the board agreed with the majority that the employment offered plaintiff entailed the risk of further injury but rejected the remainder of the controlling opinion as altering the law regarding favored work and requiring an employer to rehabilitate an employee beyond his original job status.
An injured employee who refuses to accept an employer’s offer of "favored work”, that is, work which the employee is capable of performing, is not entitled to worker’s disability benefits. Lynch v Briggs Manufacturing Co, 329 Mich 168; 45 NW2d 20 (1950), Hope v Welch Grape Juice Co, 46 Mich App 128; 207 NW2d 476 (1973). The author of the concurring opinion, with whom the majority agreed, wrote:
"Principals are aware that a claimant is not required to accept work which could cause further injury. Stewart v Lakey Foundry & Machine Co, 311 Mich 463 [18 NW2d 895 (1945)], and Allen v National Twist Drill & Tool Co, 324 Mich 660 [37 NW2d 664 (1949)], speak on the subject.”
Defendant argues that the quoted language indicates that the board found that plaintiff could reject any job which might result in any injury, rather than only those jobs which she was physically unable to perform.
Defendant’s contention is without merit. Admittedly, the decisions cited in the concurrence do not directly deal with the favored work doctrine. The decisions do, however, define "disability” as the inability to earn full wages at the employment at which the employee was last subjected to the conditions resulting in the disability. The concurring opinion clearly found that plaintiff could refuse the offered employment without affecting her right to benefits, not because any injury could occur, but because it would result in the same disabling condition. In any event, the controlling opinion demonstrates application of the correct legal principle:
"I agree with Mr. Krapohl’s holding that the work offered was not shown to be free from the airborne pollutants to which she is allergic. However, even if we assume that the work offered at the scene of the battle complies with the medical speciñcations that she not be further exposed to the causes and conditions which caused disablement * * * ”. (Emphasis supplied.)
Dr. Nowland, Dr. McClellan and Dr. Segal were of the opinion that plaintiff suffered from fiberglass dermatitis or an allergic reaction to fiberglass. Dr. Segal testified that the condition could reoccur if plaintiff was exposed to free fiberglass in the air. Dr. Plotnick was of the opinion that plaintiff was allergic to epoxy and hardeners and should avoid exposure to the two, their fumes, or their release into the air caused by the sanding of hardened fiberglass.
Plaintiff testified that defendant’s operations were housed in one large plant and a warehouse separated from the plant by a dock. Fiberglass was everywhere, even in the shipping and receiving department where repair work was done. According to defendant’s production manager, the two jobs offered plaintiff would be free of contact with epoxy and free fiberglass. However, the position of crib attendant was located in a semi-enclosed crib in the same building as manufacturing and repair operations and the job of inspector was located in the warehouse 100 feet away from where repair operations involving fiberglass dust were conducted. Plaintiff had earlier testified that repair work consisted- of sanding and grinding the product and then patching with a resin and hardener. Clearly, the board was justified in finding that whether plaintiffs disablement was caused by fiberglass dust or epoxy and hardeners, plaintiff would be exposed to the aggravating conditions if she accepted the offered employment opportunities.
The concurring opinion provides no further elucidation:
"Therefore, the Referee’s decision is modified, and defendant shall pay ninety-five dollars ($95.00) per week from May 12, 1972, to the date of trial (August 30, 1973), and thereafter until further order of the Bureau. The compensation rate is subject to computation with consideration of the wages earned since July 9, 1973, in accord with the provisions of 418.361 CL 1970.”
In performing its duty on remand, the board may, within its discretion, take additional evidence. MCLA 418.859; MSA 17.237(859).
MCLA 418.319; MSA 17.237(319) provides in relevant part:
"An employee who has suffered an injury covered by this act shall be entitled to prompt medical rehabilitation services. When as a result of the injury he is unable to perform work for which he has previous training or experience, he shall be entitled to such vocational rehabilitation services, including retraining and job placement, as may be reasonably necessary to restore him to useful employment. If such services are not voluntarily offered and accepted the director on his own motion or upon application of the employee or carrier or employer, after affording the parties an opportunity to be heard, may refer the employee to a bureau-approved facility for evaluation of the need for, and kind of service, treatment or training necessary and appropriate to render him fit for a remunerative occupation. Upon receipt of such report, the director may order that the services and treatment recommended in the report be provided at the expense of the employer. ” (Emphasis supplied.)
In the present case, not only does the record contain no indication that plaintiff sought to avail herself of vocational rehabilitation benefits, but the controlling opinion of the appeal board expressly-found:
"The only error reasonably chargeable to plaintiff would seem to be her failure to invoke the provisions of 418.319 in order to relieve the general taxpayers of this State from the expenses incurred by the Department of Vocational Rehabilitation in the retraining program.”
According to plaintiff’s brief to the Workmen’s Compensation Appeal Board, defendant wrote plaintiff a letter, approximately one month after the hearing, offering her employment at Gemini Corporation. While defendant, in its responsive brief, did discuss the job offer at Gemini Corporation, defendant argued only that the offer demonstrated its good faith efforts to secure employment for plaintiff and plaintiff’s uncooperative attitude and voluntary withdrawal from the labor market. | [
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] |
Danhof, C. J.
Plaintiffs filed suit in circuit court on August 16, 1973, alleging medical malpractice by the defendant, and others, in connection with surgeries performed by the defendant on plaintiff Samuel LeBlanc on January 22, 1973, and January 25, 1973, in a hospital in Cheboygan, Michigan.
On December 18, 1975, a jury returned verdicts in favor of both plaintiffs, Samuel LeBlanc was awarded $225,000 and Beverly LeBlanc was awarded $25,000. Judgment was subsequently entered on these verdicts. Defendant’s motions for judgment notwithstanding the verdict and for relief from judgment, or in the alternative, for a new trial were denied by the circuit court. Defendant appeals as of right.
Plaintiffs’ third amended complaint filed June 12, 1975, alleged that Samuel LeBlanc had consulted with Dr. Lentini in January of 1973 because of digestive system disorders and as a result, Dr. Lentini had had Mr. LeBlanc admitted to a hospital on January 9, 1973. The complaint further alleged that Dr. Lentini diagnosed plaintiff’s condition as esophageal hiatus hernia and duodenal ulcer and, essentially, that defendant committed medical malpractice by performing unnecessary surgery on January 22, 1973, when conservative medical treatment was the only treatment indicated for Mr. LeBlanc’s condition; by performing the January 22, 1973, surgery without plaintiffs’ informed consent; by negligently leaving an 18" X 18" surgical sponge inside Mr. LeBlanc at the conclusion of the January 22, 1973, surgery; and by failing to properly close the surgical wound at the conclusion of a second surgery performed on January 25, 1973, to remove the sponge. The complaint further alleged various resulting injuries and damages suffered by Mr. LeBlanc including permanent weakening of the incisional area resulting in several incisional herniae requiring still further surgeries for correction, and loss of consortium by Beverly LeBlanc.
Defendant raises eight issues on appeal. We affirm.
I
Defendant states his first issue as follows:
"Was the testimony of plaintiffs’ expert witness, Dr. George W. Miller, properly admitted against defendant Lentini, a general practitioner, even though Dr. Miller was admittedly unfamiliar with the medical standards of the Cheboygan community, and improperly based his testimony on a supposed national standard of care applicable to all general practitioners? No. ”
This issue involves two separate questions: The proper standard of care to be applied in this case, and the competency of Dr. Miller to testify as to the applicable standard of care. In general, in Michigan there are two separate standards applied in evaluating medical care in a malpractice action. Specialists are held to the degree of skill and knowledge possessed by physicians who are specialists in the light of present day scientific knowledge with no geographical limitations, while general practitioners are held to the standard of professional competence of general practitioners existing in their local community or in similar communities in light of the state of the art.
The plaintiffs argued in the trial court that defendant Dr. Lentini was a specialist subject to a national standard of care because he had held himself out as a surgeon. In effect, the plaintiffs equated surgeon with specialist. The trial court ruled that the standard of practice applicable to Dr. Lentini "is one of locality, * * * governed by the standard of practice in Cheboygan and of similar communities”. In an attempt to justify the admission of Dr. Miller’s testimony, plaintiffs have reiterated to this Court their argument that Dr. Lentini was a surgeon or held himself out to be a surgeon and was therefore to be judged as a surgeon. Wood v Vroman, 215 Mich 449, 465-466; 184 NW 520 (1921). Consequently, argue plaintiffs, Dr. Lentini was a specialist subject to a "national” standard of care under the holding of Naccarato v Grob, 384 Mich 248, 253-254; 180 NW2d 788 (1970), which reads in part:
"The reliance of the public upon the skills of a specialist and the wealth and sources of his knowledge are not limited to the geographic area in which he practices. Rather his knowledge is a speciality. He specializes so that he may keep abreast. Any other standard for a specialist would negate the fundamental expectations and purpose of a speciality. The standard of care for a specialist should be that of a reasonable specialist practicing medicine in the light of present day scientific knowledge. Therefore, geographical conditions or circumstances control neither the standard of a specialist’s care nor the competence of an expert’s testimony.”
Dr. Lentini testified that he was both a physician and a surgeon practicing in the Cheboygan, Michigan, area and was a fellow of the International College of Surgery. Dr. Lentini further testified that he designated himself as a physician and a surgeon, an M.D. and F.I.C.S. He further testified that he was not "board certified” as a surgeon and not a member of the American College of Surgeons, that he did have extensive surgical privileges at the local hospital and that most of the surgeries he performed were on patients generated within his own general practice. This testimony shows that the trial court applied the correct standard of care in this case. The defendant was not a specialist. Defendant was a general practitioner who performed a large number of difficult surgeries. He had not specialized as a surgeon, nor as a practitioner of any particular type of surgery. In Abbe v Woman’s Hospital Association, 35 Mich App 429, 433-434; 192 NW2d 691 (1971), this Court found that a "general surgeon” was not a specialist and that
"He does not fall within the category which must be judged by the standard of specialists in specific areas of the practice of medicine. Rather, his liability must be determined on the basis of any deviation from the standard of professional competence, and the exercise thereof, in his community or communities sufficiently similar thereto to constitute a proper basis for the expression of qualified expert opinion testimony as to that standard.”
The defendant in the instant case was both a general practitioner and a surgeon. The plaintiff failed to demonstrate that the defendant was a specialist in a specific area of medical practice. Therefore, the holding of Naccarato v Grob, supra, does not apply here.
The "locality” rule has been variously stated by Michigan courts. In Miller v Toles, 183 Mich 252, 257; 150 NW 118 (1914), the Court stated:
"In treating a broken or diseased limb, the implied contract between the surgeon and patient is not to restore it to its natural condition, but to use that degree of diligence and skill which is ordinarily possessed by the average of the members of the profession in similar localities, giving due consideration to the state of the art at the time. 30 Cyc. p. 1573, n. 35; 39 Cent. Dig. title Physicians and Surgeons,’ § 23.”
In Morgan v Engles, 13 Mich App 656, 661; 164 NW2d 702 (1968), this Court stated:
"In a negligence action, a qualified medical practitioner should be subject to liability if he fails to exercise an established standard of care and skill. The standard is not determined by the particular physician’s actual or constructive knowledge of treatments, but rather by the customary practice in the local medical community and an area coextensive with the medical and professional means available in centers readily accessible for appropriate treatment of the patient.”
In Lince v Monson, 363 Mich 135, 140-141; 108 NW2d 845 (1961), the Court also pointed out the necessity for expert testimony in order to establish most medical malpractice claims:
"In a case involving professional service the ordinary layman is not equipped by common knowledge and experience to judge of the skill and competence of that service and determine whether it squares with the standard of such professional practice in the community. For that, the aid of expert testimony from those learned in the profession involved is required. As this Court said in Zoterell v. Repp, 187 Mich 319, 330 [153 NW 692 (1915)]:
" 'As to those matters of special knowledge strictly involving professional skill and attention, unskillfulness, negligence, or failure to do that which ought to be done must be shown by the testimony of those learned in such matters.’
" 'In conduct, like that of a surgeon, resting upon judgment, opinion, or theory, the ordinary rules for determining negligence do not prevail. Luka v. Lowrie, 171 Mich 122 [136 NW 1106 (1912)] (41 LRA NS 290); The Tom Lysle (WD Pa), 48 F 690; Brown v. French, 104 Pa 604; Williams v. LeBar, 141 Pa 149 (21 A 525). One reason for the rule is that when one acts according to his best judgment in an emergency, he is not chargeable with negligence. Luka v. Lowrie, supra; Staloch v. Holm, 100 Minn 276 (111 NW 264, 9 LRA NS 712); Williams v. Poppleton, 3 Or 139; 30 Cyc, p 1587; Sherwood v. Babcock, 208 Mich 536 [175 NW 470 (1919)].
" 'In order to submit a case of alleged malpractice to the jury, the plaintiff must produce medical testimony to the effect that what the attending physician or surgeon did was contrary to the practice in that or similar communities, or that he omitted to do something which was ordinarily done in that or similar communities.’ Delahunt v. Finton, 244 Mich 226, 229, 230 [221 NW 168 (1928)].”
See also Perri v Tassie, 293 Mich 464, 469-471; 292 NW 370 (1940).
Several Michigan cases have dealt with the test to be used in determining the competency of an expert medical witness to testify as to the applicable standard of care. Sampson v Veenboer, 252 Mich 660, 666-667; 234 NW 170 (1931), reads in part:
"It is claimed that Dr. Thexton did not have the qualifications of an expert, and that his testimony should have been excluded. He was permitted to testify as to the practice of surgery in Grand Rapids and similar communities in western Michigan.
"He never visited the hospitals or practiced medicine or surgery in the State of Michigan.
"The fact that he was a man of experience and had performed somewhat similar operations, even though not the identical one in question, and the further fact that it was not shown that this was a very unusual operation, and the further knowledge that he obtained in the court-room listening to defendant’s testimony in regard to the practice of surgery in Grand Rapids, were sufficient to qualify him as an expert. The jury was sufficiently informed so as to be able to judge the extent of his qualifications and to decide how much credence should be given to the testimony. At times it may become necessary to secure the expert testimony of one who resides some distance from the home of a defendant accused of malpractice, for it may be difficult to obtain a witness to testify against one who bears the very high professional reputation of defendant. If it would always be necessary to secure an expert from the vicinity of the home of a defendant who might be the only practitioner there, it would be impossible to secure such testimony at all. What credence should be given to the expert’s statements is another matter. That was the province of the jury.”
In Siirila v Barrios, 398 Mich 576, 597; 248 NW2d 171 (1976), the Court concluded that:
"[A] specialist may testify as to the standard of care of a general practitioner as long as the witness is knowledgeable about the general practitioner’s standard of care.”
More recently, in Callahan v William Beaumont Hospital, 400 Mich 177, 180; 254 NW2d 31 (1977), in discussing the standard for determining the competence of a witness to testify as to the local standard of care, the Court stated:
"The question is not whether the proffered expert witness ever practiced in the same geographical area in which the defendant practiced or in a similar area. Rather, the determinative question is whether the proposed expert witness knew what the practice was.”
Pertinent excerpts from the testimony of the plaintiffs’ expert witness, Dr. Miller, include:
"A. I am familiar with the standard of care for duodenal ulcer in the entire United States, which would include, I believe, Cheboygan.
"Q. Now, your testimony regarding the treatment of this disease, do you know whether this, or what the standard of practice is in a medical community including Cheboygan, Michigan, with regard to your testimony—
"MR. STROUP: Again, for the benefit of the record, your Honor, I have an objection. I understand the Court previously ruled against me on that point, but I want the record to reflect—
"THE COURT: First of all, let us see whether the answer to the question, first of all, is yes or no. That will determine the objection.
"A. The standard of practice — I’m sorry—
"THE COURT: Do you know the standard of practice?
"A. The answer is yes, sir.
"THE COURT: Objection is overruled. He may answer.
"Q. [sic] The standard practice for hiatus hernia is well known throughout this country, as was indicated yesterday in preliminary examination, or whatever the term is. We are not living in the days where people in Cheboygan should get less care than the people who are living in Manhattan.
"Q. (By Mr. Scholl, continuing) All right.
"A. And that the transmission of medical knowledge is so broad and diffuse that there is a national standard of care.
"Q. With respect to the treatment—
"A. Of hiatus hernia.
"Q. Dr. Miller, do you have an opinion whether or not Dr. Lentini’s performance of surgery on 1/22/73 for hiatal hernia and duodenal ulcer on Mr. LeBlanc constituted a deviation from the standard of practice for the City of Cheboygan?
"MR. STROUP: I object, your Honor, on the grounds which the Court previously ruled on as to this witnesses] competency to pass upon the standard of care in Che boygan. Further, I think the question is overly broad and calls for a conclusion of the witness and invades the province of the jury.
"THE COURT: I’ll permit the doctor to answer. Objection overruled.
"Q. (By Mr. Scholl, continuing) You may answer the question, Doctor. Do you have an opinion?
"A. I do, sir.
"Q. And what is your opinion?
"A. My opinion is that this disease is so common throughout the entire United States, the bed of knowledge is so well proven, and the indications for surgical intervention are so well recognized, there are absolutely —or unfortunately, I can find no indications for surgery being performed on Mr. LeBlanc.
"Q. So my question to you once again then is, did the performance of surgery by Dr. Lentini on January 22, 1973, doing surgery on a hiatus hernia and duodenal ulcer, violate the standard of practice as it should be practiced in the City of Cheboygan?
"A. It is my best medical opinion that it did, sir.
"Q. (By Mr. Scholl, continuing) Doctor, do you know what the standard of practice is among general practitioners or surgeons who may engage in surgery, in a community of the size of Cheboygan, or of Cheboygan, or community of similar size in the State of Michigan, concerning the question of informed consent?
"A. Yes, I believe I do, sir.
"Q. Doctor, do you have an opinion as to whether or not though, after the search that I’ve indicated to you previously that was made for the sponge, whether it was consistent with good surgical practice — standard of good surgical practice in a community such as Cheboygan, to sew the patient up when the sponge was unaccounted for, and the patient’s vital signs were not alarming insofar as this patient’s well being was concerned?
"A. I think it’s a large deviation from the standard of practice to close a patient up when there is a deviation of the sponge count.”
Defendant argues that the trial court, by allowing Dr. Miller’s testimony to get to the jury, extended the national standard of care to general practitioners thereby committing clear error. We disagree. The trial court correctly ruled that the locality standard applied but that in some cases, local standards might be uniform throughout the United States:
" 'THE COURT: Well, the Court is prepared to rule. I’m going to rule, of course, that the test is one of locality, that the standard of practice insofar as Dr. Lentini is concerned is governed by the standard of practice in Cheboygan and of similar communities. However, there are certain areas in connection with medicine that are so well known that I think that any expert could testify as to that standard of practice, and so I think what we’ll do, I’ll permit you to go forward with your questioning and subject, of course, to any further objection, but as I state, there are areas of medicine so well known and taught, and they are commonplace in every locality, every community both large and small in the entire United States, and if this is one of those situations, then of course, I will permit the doctor to testify.’
" 'THE COURT: Let me decide it as far as this case is concerned. As I state, at this point, the standard of practice is the practice within the area of Cheboygan and other similar communities of like size, and so on. That will be the standard. It’s been stated so many times by the Michigan Supreme Court.’ ” (Emphasis added.)
While the burden was on the plaintiffs to establish that their expert, Dr. Miller, knew the applicable standard of care, the admissibility of Dr. Miller’s testimony was a matter within the discretion of the trial court. Siirila v Barrios, supra, at 591. Our careful review of the extensive record in this case convinces us that the trial court did not abuse its discretion in admitting the testimony of Dr. Miller.
Dr. Miller’s testimony included the following: That he had been present throughout the testimony given by the defendant, Dr. Lentini, when the defendant was called as plaintiffs’ first witness; (This testimony by Dr. Lentini dealt with his treatment of Samuel LeBlanc and generally with his practice in Cheboygan including defendant’s assertions that he was a general practitioner who had performed hundreds of surgical operations of the same magnitude as the ones performed on Samuel LeBlanc, and that he spent approximately two weeks per year attending post graduate courses in various parts of the United States); he, Dr. Miller, received his M.D. degree in Massachusetts in 1951, spent four years in surgical residency there, he thereafter practiced (primarily surgery with 20% to 30% general practice) in Norway, Maine and South Paris, Maine, for a three-year period (1957-1960) at a community hospital, that these communities were of a size which we note is similar to that of Cheboygan ; that he became board certified in general surgery while practicing in Norway and has since regarded himself as a surgical specialist; that he became a fellow of the American Cancer Society and practiced extensive heroic cancer surgery for two years at the Sloan-Kettering Institute in New York; that he then came to Detroit, Michigan, to work in industrial medicine and did consultant work for Blue Shield; that since 1965, when he underwent an unsuccessful back operation, he has not practiced surgery, but since 1967, he has engaged in general practice, devoting a substantial portion of his time to legal matters including giving expert testimony, currently practicing in St. Clair Shores, Michigan, and Grosse Pointe Farms, Michigan; that he was familiar with the applicable standard of practice in those cities; that he was familiar with the standards of practice for general practitioners with respect to the diagnosis and treatment of duodenal ulcers and hiatal hernias in Norway, Maine, at the time of his practice there and that the general standard of treatment for duodenal ulcers had not changed significantly since that time and that the known causes and basic treatment of the two conditions had remained unchanged from the time he practiced in Norway, Maine, and that the standard of practice in treating duodenal ulcers is the same throughout the United States; that he has treated duodenal ulcer and hiatus hernia patients in his own practice; and that duodenal ulcer and hiatal hernia "is one of the most popular subjects that are discussed, because it is one of the most frequent and common recurring symptoms in our society”.
Considering the background of the witness and the nature of the medical conditions involved, we believe that Dr. Miller was sufficiently qualified to testify as an expert on the applicable standard of care in Cheboygan or similar communities at the time in question, even though he had never treated a patient in Cheboygan and was generally unfamiliar with the area. How much credit to give to his testimony was for the jury to decide. Sampson v Veenboer, supra.
II
Defendant also contends that the trial court erred "in refusing to grant defendant’s motion for mistrial regarding improper cross-examination by plaintiffs’ counsel questioning defendant as to why his attorney made an objection”.
Defendant testified in his own behalf during the trial. While cross-examining the defendant, plaintiffs’ counsel asked the defendant why defense counsel had objected to certain questions asked of other witnesses. Defense counsel objected and moved for a mistrial. The objection was sustained, the mistrial denied and the jury was instructed that defense counsel "is not the agent of defendant in this case” and that arguments, statements and remarks of attorneys are not evidence. Plaintiffs’ counsel then asked, the same question again in slightly altered form. The trial court ordered the question stricken from the record and directed plaintiffs’ counsel not to pursue it any further. The questions went unanswered. Assuming arguendo that the questions themselves were improper and prejudicial, we believe that the prompt and forceful action of the trial court cured the prejudice and that no miscarriage of justice resulted from the trial court’s exercise of discretion in denying the mistrial. Therefore, we will not disturb that ruling. Kucken v Hygrade Food Products Corp, 51 Mich App 471, 473; 215 NW2d 772 (1974).
III
Defendant also contends that the trial court erred in refusing to declare a mistrial after plaintiffs’ counsel, while cross-examining, asked one of defendant’s expert witnesses, Dr. Rankin, the following question:
"Q. Under your oath, did you make a remark yesterday out here in the door to Mrs. MacKenzie, like this, 'Don’t worry about it. We’ll shove it to him’?”
Dr. Rankin’s answer and subsequent testimony were:
"A. I don’t recall that.
"Q. You don’t recall that, sir?
"A. No.
"Q. Are you saying that you did not make that remark?
"A. I didn’t say that. I said I do not recall that.
"Q. Is that why you are so evasive to this question, Doctor?
"A. I am not being evasive. I am only trying to answer what’s on the record.
"THE COURT: The jury will step out a moment.”
After the jury was excused, Dr. Rankin testified that he had not made the statement. Mrs. MacKenzie, defense counsel, also testified out of the presence of the jury that she did not recall such a statement having been made. With the jury still excused, Linda Gilbo, a friend of the plaintiffs and a spectator at the trial, testified that she had overheard the remark being made by Dr. Rankin to Mrs. MacKenzie on the previous day and had informed plaintiffs’ counsel that the statement had been made.
Defense counsel asked for a mistrial, which was not granted. No cautionary instruction was requested and none was given. Defendant cites Sullivan v Deiter, 86 Mich 404; 49 NW 261 (1891), and People v Rice, 136 Mich 619; 99 NW 860 (1904), to support his contention that the question put to Dr. Rankin was improper. Both of these cases are clearly distinguishable. The record in the instant case shows that plaintiffs’ counsel had a reasonable basis for asking the question which was proper cross-examination attempting to show the bias of the witness. Hayes v Coleman, 338 Mich 371, 380-381; 61 NW2d 634 (1953). See also Snyder v Mathison, 196 Mich 378, 387; 163 NW 104 (1917). Since the question was not improper, no error was committed in refusing to declare a mistrial. The trial court’s refusal to grant a new trial based on its finding of lack of error was also a proper exercise of its discretion. See Willett v Ford Motor Co, 400 Mich 65, 70-71; 253 NW2d 111 (1977).
IV
Defendant also argues that the judgment in favor of Beverly LeBlanc "for damage to the marital consortium is unsupportable in fact and fraudulently procured and accordingly ought to be set aside”. The plaintiffs, Samuel and Beverly LeBlanc, consistently maintained prior to and during trial that they were married to each other. Samuel LeBlanc had been previously married, he and his first wife were granted an interlocutory judgment of divorce in California on September 8, 1965. However, the final judgment of divorce was not granted until February 2, 1967. Plaintiffs were married to each other in Detroit, Michigan, on December 17, 1966. Defendant argues that Samuel LeBlanc was under a legal disability to contract the second marriage due to his prior subsisting marriage to his first wife and that therefore the second marriage was a nullity. MCLA 552.1; MSA 25.81.
On March 19, 1976, upon application by Samuel LeBlanc to the Orange County California Superior Court, the February 2, 1967, divorce order was set aside and a final judgment of divorce nunc pro tunc to May 2, 1966, was granted. Plaintiffs argue that this nunc pro tunc order validated the second marriage. In ruling on this issue the circuit court stated:
"Upon review of the testimony and the matters alleged, this Court is of the opinion that Samuel LeBlanc did not commit fraud on the Court. He was served with a copy of the Interlocutory Judgment and may well have believed that such divorce was final. In any event, Samuel LeBlanc’s former wife did not secure the final Judgment until many months after the time when such Judgment could have been entered by the Court in Orange County, California. Since the trial of this cause, such Judgment has been finalized nunc pro tunc, a procedure which is recognized in the State of California and by this Court.”
California law provides for granting such nunc pro tunc judgments retroactively to a date when a final divorce judgment could have been, but was not, obtained for the purpose, among others, of validating subsequent marriages. Validation of the marriage between the plaintiffs, effective from the original date of that marriage, is within the scope of the California law. Armstrong v Armstrong, 85 Cal App 2d 482; 193 P2d 495 (1948). See also Waller v Waller, 3 Cal App 3d 456; 83 Cal Rptr 533 (1970), and In re Marriage of Frapwell, 53 Cal App 3d 479; 125 Cal Rptr 878 (1975), for additional discussion of the California law.
Defendant argues that the nunc pro tunc order cannot "retroactively validate the fraudulent judgment entered in favor of Beverly LeBlanc in the instant case”. We agree that the retroactive validation of the marriage does not necessarily affect the rights of the defendant acquired prior to March 19, 1976. However, absent any showing that the defendant would be unfairly prejudiced thereby, we hold that the retroactive validation of the plaintiffs’ marriage provides a sufficient basis for the judgment in question.
V
Defendant’s other allegations of error either present issues not properly preserved for appellate review or are without merit.
Affirmed. Costs to plaintiffs.
In his “to concur” opinion in Siirila v Barrios, 398 Mich 576, 634; 248 NW2d 171 (1976), Justice Williams argued for a modified rule and concluded:
"We would hold that the test in Michigan henceforth shall be that a general practitioner is under duty to use that degree of care and skill which is expected of a reasonably competent practitioner of the same class, acting under the same or similar circumstances, having in mind (a) the state of the art for the particular medical situation, (b) whether a specialist should reasonably have been consulted and (c) such local factors as might be pertinent.”
Subsequently, however, in enacting MCLA 600.2912(a); MSA 27A.2912(1), the Legislature has established the following:
"In an action alleging malpractice the plaintiff shall have the burden of proving that in light of the state of the art existing at the time of the alleged malpractice:
"(a) The defendant, if a general practitioner, failed to provide the plaintiff the recognized standard of acceptable professional practice in the community in which the defendant practices or in a similar community, and that as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.
"(b) The defendant, if a specialist, failed to provide the recognized standard of care within that specialty as reasonably applied in light of the facilities available in the community or other facilities reasonably available under the circumstances, and as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.”
The parties apparently agree that an exception to this general rule existed as to the sponge issue and that the jury in the instant case could have considered, even absent expert testimony, whether the defendant was negligent in leaving the surgical sponge in the body of the plaintiff for several days. See LeFaive v Asselin, 262 Mich 443; 247 NW 911 (1933), and Winchester v Chabut, 321 Mich 114, 119; 32 NW2d 358 (1948).
Dr. Miller testified that "Norway, and South Paris, * * * are communities of about five to eight thousand”. In defendant’s brief the 1970 population of the City of Cheboygan is given as 5,533. | [
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] |
N. J. Lambros, J.
On February 7, 1974, plaintiffs suffered injuries in an automobile accident with an uninsured motorist. They were insured by defendant under a no-fault insurance policy. They paid an additional premium of $2 for uninsured motorist coverage. A policy provision allowed the insurance company to reduce the amounts payable under the uninsured motorist provision by the amounts paid for personal protection benefits. Plaintiffs sought a declaratory judgment that this set off could occur only after plaintiffs had recovered damages from the uninsured motorist, see MCLA 500.3116; MSA 24.13116, but the trial court granted defendant’s motion for summary judgment. On appeal, plaintiffs argue that they are entitled to payment of the uninsured motorist benefits without a set off and that the policy provision providing for a set off is contrary to the public policy of this state.
In American Fidelity Fire Insurance Co v Wil liams, 80 Mich App 125; 263 NW2d 311 (1977), this issue was discussed and the Court held that an essentially identical policy provision allowing set off was valid and not contrary to public policy. We find their reasoning persuasive. Since the repeal of MCLA 500.3010; MSA 24.13010, by 1972 PA 345, an insurer is not required to provide (or a motorist to have) a statutorily mandated minimum amount of uninsured motorist coverage.
The insurer, in this case, is liable only for payment of benefits on the basis of the contract. The contract provisions are clear and unambiguous in authorizing a deduction of personal protection benefits from uninsured motorist benefits. A set off provision is not restricted to "similar” benefits, see Royal Globe Insurance Co v Connolly, 54 App Div 2d 1117; 389 NYS2d 207 (1976), and does not contain ambiguities which are capable of being strictly construed against the insurer, Arrigo’s Fleet Service, Inc v Aetna Life & Casualty Co, 54 Mich App 482, 487, n 5; 221 NW2d 206 (1974), lv den, 392 Mich 812 (1974), so as not to permit set off.
If the policy provision does call for a set off, plaintiffs claim that it cannot be given effect since it is contrary to public policy. Plaintiffs contend that such a provision might, in some circumstances, render the uninsured motorist coverage totally worthless where personal protection benefits exceed the uninsured motorist policy limits. However, the insurer is no longer required to provide uninsured motorist coverage. Although the policy does not offer as much protection as plaintiffs would like, in retrospect, it does offer some limited protection. There are accidents in which people incur minimal economic losses but suffer greatly from noneconomic injuries. On the facts of this case, we cannot say that the policy provisions were against the public policy of this state.
Affirmed. Costs to defendant.
Joseph Gardner suíféred a broken neck and lost his right kneecap with a permanent loss of mobility. Barbara Gardner broke her arm, jaw and other facial bones. They were paid about $13,000 for economic losses of wages and medical bills (PIP); they are now claiming for $40,000 in noneconomic losses.
Plaintiffs’ reliance on this statute to void the set-off provision is misplaced. This section deals with the set off of tort recoveries from statutorily required personal protection benefits while the instant case involves deducting personal protection benefits from uninsured motorist benefits, which are not required by law.
See also, Schigur v West Bend Mutual Ins Co, 80 Mich App 640; 264 NW2d 83 (1978).
As the Court noted in American Fidelity Fire Ins Co, supra, a search for assistance from other jurisdictions is not very fruitful, see Anno: Uninsured Motorist Insurance: Reduction of Coverage By Amounts Payable Under Medical Expense Insurance, 24 ALR3d 1353. These cases involve different factual and legal settings (i.e., whether there was an applicable policy provision providing for set off, whether the damages were above or below the policy limits, whether there was a potential for double recovery, whether the statute required, forbade, or was silent about set offs, whether no-fault was in effect in that state and whether a certain minimum level of uninsured motorist coverage was required by statute) which makes the analysis of their holdings difficult and inconclusive as applied to the facts of this case. | [
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Per Curiam.
Plaintiff, a prisoner, was transferred from Southern Michigan Prison to Marquette in August, 1973. In preparation for his transfer, plaintiff was required to turn over his personal property to the agents of the defendant. In return, he received a resident personal property receipt which itemized the property he had placed in the custody of the defendant. Plaintiff’s property was never returned to him after his arrival at Marquette.
Plaintiff brought suit alleging that the resident personal property receipt constituted a bailment contract and claiming damages of $28,939.84 for breach. Defendant moved for accelerated and summary judgment on the ground that plaintiff’s complaint was a disguised tort claim and that, as a tort claim, it was subject to the defense of govern mental immunity. Plaintiff appeals from an order granting defendant’s motion.
The trial court did not err in finding that the receipt did not constitute an express contract since it did not contain any contract terms. Therefore, any bailment relationship must be based on an implied contract. An implied contract, like other contracts, requires mutual assent and consideration. The parties did not appear to have any intention of entering into a contractual relationship since this procedure was required as an aspect of prison management and control. Furthermore, this purported contract lacks consideration since the parties were only performing a preexisting duty. As part of the transfer procedure, plaintiff was required to give up his property to the defendant, and the defendant was required to take it and hold it for him. Even if plaintiff was able to show a bailment contract, the Court could look beyond the contract label to determine whether the substance of the complaint sounded in tort. When significant public policy considerations are involved, the Court is not controlled by the labels chosen by the plaintiff, Greatrex v Evangelical Deaconess Hospital, 261 Mich 327; 246 NW 137 (1933). In Greatrex, at 332, the Court quoted with approval the entire opinion of Rudy v Lakeside Hospital, 115 Ohio St 539; 155 NE 126 (1926), where the Ohio court dismissed a similar action which attempted to circumvent a tort liability defense by pleading an implied contract of bailment.
Subject to certain statutory exceptions, all government agencies shall be immune from tort liability in all cases where the government agency is engaged in the exercise or discharge of a governmental function. MCLA 691.1407; MSA 3.996(107).
"Governmental function” is not defined by statute. It is, however, a term of art which has been used by the courts of this state to describe those activities of government which due to their public nature should not give rise to liability at common law. In the absence of prior judicial decision on whether a given activity is a governmental function, the courts will take a case-by-case approach. Thomas v Department of State Highways, 398 Mich 1; 247 NW2d 530 (1976). The operation and maintenance of a jail is a governmental function. Green v Department of Corrections, 30 Mich App 648; 186 NW2d 792 (1971), aff'd, 386 Mich 459; 192 NW2d 491 (1971), Wojtasinski v Saginaw, 74 Mich App 476; 254 NW2d 71 (1977). Furthermore, the prisoner transfer procedure, which required the plaintiff to be separated from his personal property, is an incident of the operation and maintenance of prisons and thus is within the scope of the performance of a uniquely governmental function.
Affirmed. No costs, a public question involved. | [
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D. F. Walsh, J.
Defendant was convicted by a jury of carrying a pistol in a motor vehicle, MCLA 750.227; MSA 28.424, and sentenced to 4-1/2 to 5 years imprisonment. He appeals as of right.
According to the trial testimony, at 8 p.m. on the day of the incident, one of the arresting officers was informed that a black male fitting the defendant’s description would be at a certain address carrying a gun that the informer had seen in the defendant’s possession. The tipster also gave a description of the defendant’s car and its license number. Acting on this information, three officers watched the address until the defendant came out and entered his car. As the defendant was pulling away, the police drew alongside his car and identified themselves. A short chase ensued during which the defendant threw an automatic pistol out the window of his car.
The prosecution also presented testimony concerning an unsigned statement made by the defendant shortly after his arrest. Therein the defendant stated that he had obtained the gun from an acquaintance for approximately $65. He also said that he and a friend had test fired the pistol, but that it was defective in failing to eject the spent shell. Defendant did not sign the statement, telling the interrogating officer that he was "talking as a man” and not making a formal statement.
During its case in chief, the prosecution was permitted to introduce evidence that the defendant had been arrested previously for carrying a concealed weapon and had pleaded guilty to a lesser offense. The trial court allowed the evidence, over objection, as probative of intent, absence of mistake, and knowledge that the gun was in the car in the instant case. MCLA 768.27; MSA 28.1050.
The prosecution also was allowed to cross-examine the defendant regarding a 1976 incident in which he was arrested for carrying a concealed weapon. In that instance, the defendant was driving an automobile and was stopped for speeding. As his passenger exited the car, one pistol fell from the passenger side of the car and another was discovered in the passenger’s waistband. She claimed possession of both guns. The two were arrested on the weapons charge, but a warrant against the defendant was refused and the charge against him was dropped.
Defendant makes four claims of error in his appeal: (1) that the trial court erred in admitting the police officer’s testimony regarding the information received from the anonymous informant; (2) that the trial court erred in admitting testimony concerning defendant’s previous conviction; (3) that the trial court erroneously permitted cross-examination of the defendant about the 1976 incident; (4) that the sentence imposed violated the indeterminate sentencing act. MCLA 769.8; MSA 28.1080.
The basis of the defendant’s objection to the admission of testimony concerning the tipster’s information is that it was inadmissible hearsay. His argument falls with its premise. Hearsay is an extrajudicial statement offered to prove the truth of the matter asserted. People v Cunningham, 398 Mich 514; 248 NW2d 166 (1976), McCormick, Evidence (2d ed), § 246. In the case at bar, the jury was instructed that the testimony was not offered to prove the truth of the informant’s statements but only to illustrate the basis for the officers’ subsequent actions. Thus, the testimony was not hearsay and its admission was not error.
Defendant’s second and third claims of error involve the admission of evidence of other bad acts under MCLA 768.27; MSA 28.1050. In view of the lack of a comprehensive appellate statement defining the limited circumstances under which such evidence is admissible, we are constrained to discuss and delineate the similar acts doctrine.
In Michigan, evidence of a defendant’s other bad acts is generally inadmissible because its probative value is outweighed by the likelihood that it will prejudice the jury against the defendant, preventing an objective determination of the disputed factual issues. People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976), People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973).
"This rule of law guards against convicting an accused person because he is a bad man. Barring such evidence prevents the trier of fact from inferring that the accused person is guilty of the charged offense because he has committed other similar acts or crimes.” People v Matthews, 17 Mich App 48, 52; 169 NW2d 138 (1969).
Prevention of that type of prejudice has been of continual concern to our courts for over a century. See, e.g., People v Dean, 253 Mich 434; 235 NW 211 (1931), People v Schweitzer, 23 Mich 301 (1871).
"From the time of Lightfoot v People, 16 Mich 507 [1868], and People v Schweitzer, 23 Mich 301 [1871], we have excluded proofs of other unrelated crimes unless they fall within the limited exceptions recognized by statute or our decisions.” People v Lundberg, 364 Mich 596, 603; 111 NW2d 809 (1961).
As indicated by the above quotation, there have developed a limited number of statutory and judicial exceptions to the above exclusionary rule. The case at bar involves the exceptions enumerated in MCLA 768.27; MSA 28.1050:
"In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”
Even given this judicially approved statutory directive, the degree of prejudice inherent in evidence of other bad acts dictates that it be admitted only in narrowly described circumstances. Accord ingly, we hold that such evidence is inadmissible unless it satisfies the following requirements.
First, there must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced. People v Davis, 343 Mich 348; 72 NW2d 269 (1955), McCormick, Evidence (2d ed), § 190.
Second, there must be some special circumstances of the prior bad act which tend to prove one of the statutory items. People v Lundberg, supra, People v Padgett, 306 Mich 545; 11 NW2d 235 (1943). For example, if a defendant were charged with robbery, another robbery committed by the defendant would not be admissible to prove intent merely because it also involved specific intent to rob. The law requires an additional showing that the facts or circumstances of the other bad acts are probative of the defendant’s motive, intent, absence of mistake or accident, scheme, plan or system in committing the charged offense. See, People v Locke, 275 Mich 333; 266 NW 370 (1936), Slough and Knightly, Other Vices, Other Crimes, 41 Iowa L Rev 325 (1956). In the absence of such a connection, the evidence would be inadmissible.
The third requirement is that the defendant’s motive, intent, absence of mistake or accident, scheme, plan or system must be material to the determination of the defendant’s guilt of the charged offense. People v Oliphant, supra, People v Riddle, 322 Mich 199; 33 NW2d 759 (1948), People v Stander, 73 Mich App 617; 251 NW2d 258 (1977). In discussing materiality in the context of similar acts evidence, the Supreme Court in People v Oliphant, supra, cited with approval McCormick, Evidence (2d ed). We follow its example:
"The remarks of Lord Sumner in Thompson v The King, [1918] App. C. 221, 232 are pertinent: 'Before an issue can be said to be raised, which would permit the introduction of such evidence so obviously prejudicial to the accused, it must have been raised in substance if not in so many words, and the issue so raised must be one to which the prejudicial evidence is relevant. The mere theory that a plea of not guilty puts everything material in issue is not enough for this purpose. The prosecution cannot credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice.’ ” McCormick, Evidence (2d ed), § 190, at 452, n 54. (Emphasis added.)
Thus, the general rule is that evidence of other bad acts may be introduced only when the matter which they tend to prove is disputed. People v Duncan, 402 Mich 1; 260 NW2d 58 (1977), People v Stander, supra, see People v Corbeil, 77 Mich App 691; 259 NW2d 193 (1977).
A defendant may dispute matters, and thus place them in issue, by raising them in opening argument, by cross-examining prosecution witnesses or by presenting affirmative evidence on them. Until an issue is thus disputed it is not a proper subject for proof by other bad acts.
The decisions of our Supreme Court indicate three exceptions to the requirement that a matter be disputed before other bad acts may be introduced concerning that matter.
The first exception is that the prosecution may introduce in its case in chief evidence probative of a design, scheme or plan, see, People v Bennett, 393 Mich 445; 224 NW2d 840 (1975), or of the identity of the perpetrator of the charged offense, People v Kelly, 386 Mich 330; 192 NW2d 494 (1971), where the purpose of such evidence is to prove that defendant (and not some other person) committed the act for which he stands accused.
The second exception is that in cases in which the crime charged is one in which the criminal intent necessary for conviction may not be inferred from the mere commission of the act, the prosecution may introduce in its case in chief evidence of other bad acts to prove that intent. See, People v Duncan, supra, People v Johnston, 328 Mich 213; 43 NW2d 334 (1950). A third exception apparently exists permitting presentation of evidence of a plan, scheme or system in the prosecutor’s case in chief where the charged offense is conspiracy. See, People v Ormsby, 310 Mich 291; 17 NW2d 187 (1945), People v McCrea, 303 Mich 213; 6 NW2d 489 (1942).
We emphasize that unless one of the aforementioned exceptions applies, it is error to admit evidence of other bad acts upon an issue that is not actually disputed at trial.
After the aforementioned requirements have been met, the trial court must weigh the probative value of the evidence against its likely prejudicial effect, and must exclude the evidence if the latter predominates. People v Oliphant, supra. In making its determination, the trial court should consider inter alia the availability of less prejudicial sources of proof, the necessity of the evidence to prove an element of the prosecution’s case, the defendant’s theory of the case, the tendency of the evidence to inflame the passions of the jury, and its potential for confusing the issues in the case. People v Oliphant, supra, People v Spillman, 399 Mich 313; 249 NW2d 73 (1976), People v Corbeil, supra, People v Fisher, 77 Mich App 6; 257 NW2d 250 (1977).
Applying the foregoing principles to the instant case, we find that the admission of testimony concerning the defendant’s prior conviction was erroneous. The absence of any connection between the circumstances underlying that conviction and the instant case renders that testimony irrelevant. People v Lundberg, supra, People v Padgett, supra. Furthermore, the matters upon which the testimony allegedly bore — intent and absence of mistake (knowledge) — were not disputed by the defendant in opening argument or in cross-examination of prosecution witnesses. We also note with disapproval the purpose for which the prosecutor offered the evidence:
"I’m trying to bring across the point that your client likes to carry guns”.
That point is precisely what the exclusionary rule forbids — evidence showing no more than the defendant’s disposition to commit the charged offense. See, People v Oliphant, supra, at 491.
We also find that the trial court erred in permitting cross-examination regarding the incident in which the defendant and his passenger were arrested for carrying weapons in an automobile. We infer from the record that the trial court admitted the evidence as probative of a scheme or plan. Yet nowhere is the nature of that scheme or plan indicated, nor was there any attempt to connect that incident to the crime charged.
Having found error, we must determine whether it necessitates reversal. The pertinent standard involves a dual inquiry: (1) Was the error so offensive to the maintenance of a sound judicial system as to require reversal? (2) If not, was the error harmless beyond a reasonable doubt? People v Sherman Hall, 77 Mich App 456; 258 NW2d 517 (1977).
The purpose of the first criterion is to deter prosecutorial and police misconduct. People v Swan, 56 Mich App 22; 223 NW2d 346 (1974). Given the absence of a definitive appellate statement governing the admission of other bad acts evidence, we do not find that the prosecutor deliberately injected the evidence knowing it to be prejudicial and without probative worth.
In applying the second criterion we must decide if it is reasonably possible that in a trial free of the above errors even one juror might have voted to acquit the defendant. People v Ronald Green, 74 Mich App 601; 254 NW2d 788 (1977).
We find the admission of testimony regarding the defendant’s prior conviction harmless because the defendant himself testified at length as to the circumstances underlying it. He did so to support his claim that his unsigned statement referred not to the instant case but to the prior conviction. Thus, regardless of its introduction by the prosecutor, it is certain that the defendant himself would have injected that conviction into the trial in order to explain away an otherwise unchallenged admission of guilt.
We also find the second erroneous admission of evidence harmless on the instant facts because of the strength of the people’s case. The defendant’s inculpatory statement was the most powerful evidence presented against him. His characterization of it as describing another incident was contradicted by the interrogating officer’s testimony that the only case mentioned or discussed was the instant one, and also by a significant item of independent evidence: rebuttal testimony that the pistol in the instant case had in it a spent shell that had failed to eject. That tied the defendant’s confession to this case and corroborated the testimony that only the instant charge had been discussed with the defendant. In view of the eyewitness testimony and the defendant’s statement, we find no reasonable possibility that exclusion of the erroneously admitted evidence would have altered the jury’s verdict.
The defendant’s final contention is that the trial court’s sentence of 4-1/2 to 5 years violated the indeterminate sentence act, MCLA 769.8; MSA 28.1080, as interpreted by People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). The trial court construed the statute as inapplicable to the defendant because of his three prior felony convictions. There exists a split of authority on this Court as to whether Tanner applies in these circumstances. Compare, People v Banks, 73 Mich App 492; 252 NW2d 501 (1977), with People v Redwine, 73 Mich App 83; 250 NW2d 550 (1976). We are persuaded that Redwine is the sounder decision, and for the reasons stated therein we modify the trial court’s sentence to 40 months to 5 years imprisonment.
Affirmed as modified.
The scope of this opinion also includes the judicially created exception allowing such evidence to prove identity. People v Kelly, 386 Mich 330; 192 NW2d 494 (1971). However, the rules hereinafter stated do not apply to the judicial exception admitting other bad acts to show familiarity between a defendant and a person with whom he allegedly committed a sexual offense. That exception is generally used to support the credibility of a complainant in a sex offense case; as such it is premised upon considerations distinct from those governing the admissibility of such evidence in other contexts. See, People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973), People v Jenness, 5 Mich 305 (1858).
However, the defendant’s commission of the other acts need not be established beyond a reasonable doubt. People v Duncan, 402 Mich 1; 260 NW2d 58 (1977), People v Allen, 351 Mich 535; 88 NW2d 433 (1958).
Although the example given involves only intent, the requirement of a connection to the charged offense applies equally to evidence of other bad acts introduced to show any of the facts permitted to be so demonstrated. For illustrations of this principle, compare, e.g., People v Duncan, supra, People v Oliphant, 399 Midi 472; 250 NW2d 443 (1976), People v Allen, supra, People v Davis, 343 Mich 348; 72 NW2d 269 (1955), People v Morehouse, 328 Mich 689; 44 NW2d 830 (1950), and People v Kalder, 284 Mich 235; 279 NW 493 (1938), with People v Lundberg, 364 Mich 596; 111 NW2d 809 (1961), People v Padgett, 306 Mich 545; 11 NW2d 235 (1943), People v Locke, 275 Mich 333; 266 NW 370 (1936), and People v Dean, 253 Mich 434; 235 NW 211 (1931).
The result of admitting such evidence without the requisite con nection with the charged offense is to admit precisely the kind of evidence condemned in the cases quoted at the beginning of this discussion, i.e., evidence relevant only to the defendant’s propensity to commit the offense. McCormick, Evidence (2d ed), § 190, at 453, Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv L Rev 988, 1007 (1938).
"[D]esign or plan * * * refers * * * to an antecedent mental condition which evidentially points to the doing of the act planned. Something more than the doing of similar acts is required in evidencing design, as the object is not merely to negative an innocent intent, but to prove the existence of a deñnite project directed toward completion of the crime in question * * * . [TJhe conclusion that the defendant did the act is inferred from a particular design, not from common features.” Slough and Knightly, Other Vices, Other Crimes, 41 Iowa L Rev 325, 329-330 (1956), citing 2 Wigmore, Evidence (3d ed), §§ 300, 304. (Original footnotes omitted.)
"[In proving identity with similar facts evidence] one seeks out common features in another crime to point up the likelihood that the accused was the perpetrator of the crime in question.” Id. at 330, citing 2 Wigmore, Evidence (3d ed), §§ 306, 410-413. (Emphasis added.)
We point out, however, that even where such evidence is admissible in the prosecution’s case in chief, the trial court still must weigh the probative value against the prejudicial impact.
This exception has been applied to a limited number of crimes: obtaining money or property under false pretenses with intent to defraud, People v Vida, 381 Mich 595; 166 NW2d 465 (1969), People v Bigge, 288 Mich 417; 285 NW 5 (1939), People v Smith, 271 Mich 553; 260 NW 911 (1935), People v Guise, 262 Mich 72; 247 NW 111 (1933), People v Mears, 251 Mich 359; 232 NW 358 (1930), embezzlement, People v McHugh, 286 Mich 336; 282 NW 168 (1938), People v Kennan, 275 Mich 452; 266 NW 468 (1936), People v Hopper, 274 Mich 418; 264 NW 849 (1936), People v Stuart, 274 Mich 246; 264 NW 359 (1936), People v Allan, 263 Mich 182; 248 NW 589 (1933), People v Kolowich, 262 Mich 137; 247 NW 133 (1933), People v Dixon, 259 Mich 229; 242 NW 896 (1932), People v Armstrong, 256 Mich 191; 239 NW 275 (1931), receiving and concealing stolen property, People v Fleish, 306 Mich 8; 9 NW2d 905 (1943), People v Kirillidis, 285 Mich 694; 281 NW 408 (1938), People v Hanenberg, 274 Mich 698; 265 NW 506 (1936), uttering and publishing a false check with intent to defraud, People v Golner, 308 Mich 351; 13 NW2d 846 (1944), bribery, People v Johnston, 328 Mich 213; 43 NW2d 334 (1950).
Our analysis here is premised on the minimally inflammatory nature of the bad act introduced. If the forbidden evidence had a strong tendency to arouse the jury’s passions against the defendant or to otherwise distract or confuse the jury, we would reverse regardless of the strength of the prosecution’s case because of the likelihood that the jury’s ability to objectively consider the facts would have been compromised.
"In applying this standard, we may not substitute our independent judgment of the defendant’s guilt or innocence for the jury’s judgment. Instead, we must assess only what effect the error had or reasonably may be taken to have had upon the jury’s decision.” People v Sherman Hall, 77 Mich App 456; 258 NW2d 517 (1977). | [
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D. C. Riley, J.
This case involves an issue of first impression in Michigan; i.e., the treatment of military retirement pay in a divorce proceeding. The issue focuses on the question of whether the trial court erred in awarding plaintiff a one-half interest in defendant’s net retirement benefits as part of a property settlement where no provision was made for alimony.
Defendant entered the United States Army in 1949 but he left the military in 1953. He re-enlisted in 1955, just prior to his marriage to plaintiff, and retired in 1972 as Chief Warrant Officer, fourth class.
No children were born of this marriage. The parties owned two lots and accumulated personal property, including several cars, a boat, a camper and a car trailer, some of which were encumbered by loans. In 1975, the plaintiff filed her complaint for divorce.
Following a bench trial, the court awarded plaintiff a divorce providing that neither party receive alimony and that all of the marital property be sold, with the proceeds going first to settle the liens on the property and the remainder to be divided equally between the parties.
The court found that defendant, by virtue of his years of military service, was receiving military retirement pay of $9600 per year. After deducting 20 per cent of this amount for taxes, the court awarded plaintiff, as part of the property settlement, one-half of the net amount, or $320 per month. The payments were ordered to continue until the death of either party.
Defendant contends on appeal that military retirement pay is not a marital asset subject to division in a divorce action property settlement. He argues that the retirement pay is analagous to wages, which can only be considered as a factor in granting alimony. Since no alimony was awarded here, defendant argues, plaintiff has no interest in the net retirement pay.
Although no Michigan case has precisely decided this issue, the parties have referred us to several cases from other jurisdictions where the question has been reached with conflicting results. Our analysis of these decisions leads us to the conclusion that, although the question is subject to considerable debate with defensible arguments on both sides of the issue, the trial court below correctly held that the retirement pay was an asset of the marriage subject to a property division.
It appears to be the uniform holding of the community property states that military retirement pay is community property, subject to divi sion upon divorce. The most comprehensive such opinion is that of the California Supreme Court in In re Marriage of Fithian, 10 Cal 3d 592; 111 Cal Rptr 369; 517 P2d 449 (1974).
The Fithian Court stated that under their community property law, retirement benefits which are earned by one spouse as an element of compensation earned for work done during the course of the marriage are divisible upon dissolution of the marriage. Thus, the threshold issue was whether military retirement pay was intended as deferred compensation for the person’s service prior to retirement, or . payment for the limited status of the person after retirement. The Fithian Court held:
"[Military retirement pay must be realistically viewed as compensation for past, not present, services. Congress’ purpose in creating the retirement pay system was to enhance the morale of the serviceman and to encourage him to remain in the military, and not to compensate him for his limited responsibility to the government after his retirement. Indeed, the amount of retirement pay a serviceman receives bears no relation to any continuing duties after retirement, but is calculated solely on the basis of the number of years served on active duty and the rank attained prior to retirement. (10 U. S. C. § 6323(e).) Moreover, should the serviceman actually be recalled to active duty, he is not only additionally compensated according to the active duty pay scale, but his rate of retirement pay is also increased thereafter. (10 U. S. C. § 1402.) The conclusion is inescapable that retirement pay is awarded in return for services previously rendered and therefore is divisible as community property to the extent the serviceman was married while on active duty.” 10 Cal 3d at 604; 111 Cal Rptr at 376-377; 517 P2d at 456-457.
The Court in Fithian did not feel that this result was affected by the fact that the officer had not contributed, either directly or in the form of a payroll deduction, to the fund out of which the retirement pay is disbursed. The Court found the question of contribution irrelevant to the ultimate characterization of the benefits.
"Although the retirement fund was noncontributory, husband’s rights to the benefits vested during marriage and constituted an integral part of his compensation for service in the military.” 10 Cal 3d at 596; 111 Cal Rptr at 371; 517 P2d at 451.
Community property states are not the only jurisdictions to rule that military retirement pay is an asset of the marriage, divisible upon divorce. In Kruger v Kruger, 139 NJ Super 413; 354 A2d 340 (1976), the Superior Court of New Jersey, Appellate Division, held that the trial court had correctly distributed a share of the husband’s retirement pay to the wife as a portion of the property division. No alimony was awarded.
The Kruger Court first considered the practical and financial aspects of terming such pay as an asset of the marriage rather than income to the husband. The Court then cited from a number of community property cases, including Fithian, supra, which held the pay to be a marital asset.
The Kruger Court held:
"We therefore conclude that both the retired pay and disability benefits which defendant husband has become irrevocably entitled to receive for the balance of his life constitute assets subject to equitable distribution to the extent that his entitlement thereto is based upon military service rendered during the existence of the marriage.” 139 NJ Super at 420; 354 A2d at 344.
We recognize that the result reached by the Courts in Fithian, supra, and Kruger, supra, is by no means universal. Several jurisdictions have held military retirement pay to be an equivalent to wages, thereby constituting income to the retired spouse that is unavailable for distribution in a property settlement. In United States v Williams, — Md App —; 370 A2d 1134 (1977), the Maryland Court of Appeals, after having the question certified to them by the United States District Court, held that for the purposes of Maryland divorce law military retirement pay constitutes wages subject to garnishment for payment of an arrearage in alimony. A similar result was reached in Watson v Watson, 424 F Supp 866 (EDNC, 1976), although the state’s garnishment law altered the disposition of the case.
In In re Marriage of Ellis, 36 Colo App 234; 538 P2d 1347 (1975), affirmed — Colo —; 552 P2d 506 (1976), the Colorado Court held that military retirement pay is not marital property since "[a]t no time has it any cash surrender, loan, redemption, or lump sum value”. 36 Colo App at 236; 538 P2d at 1349.
Although, as we have stated, no Michigan case has ruled specifically on this issue, the contrasting points of view in the previously cited cases were discussed by this Court in Hutchins v Hutchins, 71 Mich App 361; 248 NW2d 272 (1976). In Hutchins, the issue was the treatment of the husband’s pension from the Michigan State Police. The Court noted that the pension question was one of first impression, so it turned to a consideration of analagous areas of law and to decisions of other states:
"In our research in community and noncommunity property states, we find the courts holding that state pensions, private pensions, profit-sharing trust and military pensions could be properly distributed as property under a decree of divorce.” (Emphasis added.) 71 Mich App at 365.
After discussing several of the cases concerning military retirement pay, and cases dealing with other forms of pensions, the Hutchins Court concluded:
"Returning to the Michigan public safety department pension, accident and disability fund leads us, as do other jurisdictions with similar statutes, to the conclusion that it also treats the accumulated deductions in the husband’s account in a manner which makes them marital property. Here, the plaintiff-husband’s interest was created in most part from his salary, and we agree with the defendant-wife that these deductions would have been available to the parties during their marriage to be invested in stocks, bonds, savings account, annuity and/or other investments. The plaintiff-husband’s right in the fund is fully vested and cannot be subjected to divestment or forfeiture, except as herein noted for breach of the public trust. We also hold that it is property that came to the plaintiff by reason of the marriage and therefore should be included in the total assets of the parties. As in New Jersey, our divorce laws make no reference to vesting. See MCLA 552.1 et seq.; MSA 25.81 et seq. Therefore, it must be included as an asset in the distribution of property.” 71 Mich App at 370-371.
In the present case, we are persuaded by the decisions in Fithian, supra, Kruger, supra, and by analogy in Hutchins, supra, that defendant’s military retirement pay was correctly categorized as a marital asset and included within the property settlement. As the Hutchins Court states, vesting is not a relevant consideration in our divorce laws. We find, as did the Court in Fithian, that military retirement pay is primarily deferred compensation for services rendered prior to retirement. This being the case, the fact that defendant did not have to contribute to a retirement pay fund does not distinguish this type of pension from that in Hutchins. Congress could have eliminated the retirement pay system and increased the rate of pay during active service. Since the decision was made to provide for retirement benefits, the deferred compensation was not available to the parties during defendant’s active service for use in other investments. Therefore, plaintiff, through her contribution to the marriage, obtained an interest in the marital asset of the earned retirement pay. Hutchins, supra.
Defendant also contends that a decision by this Court that the retirement pay is a marital asset will conflict with the supremacy clause of the United States Constitution by interfering with Congress’ exclusive power to raise and support armies. We note that this contention was answered contrary to defendant’s assertions in In re Marriage of Fithian, supra, 10 Cal 3d at 596-599; 111 Cal Rptr at 371-373; 517 P2d at 451-453. We concur in that reasoning and find no violation of the supremacy clause.
Defendant asserts that the division of property was inequitable and that the court should not have considered fault when making the property division. Fault is still a consideration in matters of property division, notwithstanding Michigan’s no-fault divorce laws. Kretzschmar v Kretzschmar, 48 Mich App 279; 210 NW2d 352 (1973). Our reading of the record shows that the court considered fault in calculating the property division. Absent a showing of abuse of discretion, which has not been made here, we will not disturb the court’s decision. See Dougherty v Dougherty, 48 Mich App 154; 210 NW2d 151 (1973), Johnson v Johnson, 346 Mich 418; 78 NW2d 216 (1956).
Defendant finally challenges the trial court’s award of $650 in attorney fees to plaintiff. Again, the granting of attorney fees in a divorce action is a matter of discretion. Gove v Gove, 71 Mich App 431; 248 NW2d 573 (1976). We find no abuse of that discretion in the present case.
Affirmed.
Costs to appellee.
Dominey v Dominey, 481 SW2d 473 (Tex Civ App, 1972), Busby v Busby, 457 SW2d 551 (Tex, 1970), LeClert v LeClert, 80 NM 235; 453 P2d 755 (1969), Wilder v Wilder, 85 Wash 2d 364; 534 P2d 1355 (1975), Ramsey v Ramsey, 96 Idaho 672; 535 P2d 53 (1975).
On retired status, the officer is subject to recall to active status, can be court-martialed for certain conduct and thereby lose the retirement pay, and is subject to various other provisions of Federal law. See Ables v Ables, 540 SW2d 769 (Tex Civ App, 1976). See also, Watson v Watson, 424 F Supp 866 (EDNC 1976).
These considerations include the tax treatment of property divided upon divorce as opposed to alimony and the wife’s right to receive payments after remarriage. In addition, if the pay was treated as income, the entire amount would be available for computation of alimony. If treated as an asset, the wife would have an interest only in that amount of pay that was earned during the years of marriage.
We note that, consistent with the decision in In re Marriage of Fithian, 10 Cal 3d 592; 111 Cal Rptr 369; 517 P2d 449 (1974), the trial court expressly stated that plaintiffs interest in the retirement pay will cease upon either the death of defendant or her death, whichever occurs first.
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Per Curiam.
On May 5, 1975, defendant Mark Alan McDiarmid pled guilty in Genesee County Circuit Court to delivering heroin contrary to MCLA 335.341(l)(a); MSA 18.1070(41)(l)(a). He was sentenced on August 21, 1975, to a prison term of 13 to 20 years. Subsequently, defendant filed a motion requesting resentencing upon the basis of an affidavit alleging use by the trial court of improper and inaccurate information in the original sentencing decision. The court denied defendant’s request for a hearing. Defendant appeals as of right.
On appeal, defendant alleges that the trial court erred reversibly by denying him a hearing on the strength of the affidavit submitted in support of his motion for resentencing. We do not agree.
The Michigan Supreme Court has recently held that where defendant asserts that the trial court has considered inaccurate information in its sentencing and timely moves the court to vacate the sentence prior to appeal, including with his motion appropriate supporting affidavits, the trial court shall hear defendant’s claims and make a proper disposition. Guilty Plea Cases, 395 Mich 96, 137; 235 NW2d 132 (1975).
No special rule or statute applies to measure the appropriateness of the supporting affidavit. Therefore, we turn to GCR 1963, 785.1(1), which states that rules of civil procedure will obtain in criminal cases where neither court rule nor statute provide otherwise. GCR 1963, 527.3 requires that affidavits in support of a motion to amend judgment must contain competent legal evidence. Consequently, as Michigan courts have held affidavits based upon hearsay incompetent evidence to support a motion such as the present, we conclude the trial court was not in error by denying defendant’s motion. See Sylvester v Grabowski, 370 Mich 503, 506-507; 122 NW2d 707 (1963), Crowley v Upleger, 273 Mich 541, 542-543; 263 NW 737 (1935).
Affirmed.
According to the affidavit secured from defendant’s brother, James L. McDiarmid, information was provided him by a third party to the effect that the sentencing judge believed defendant had perjured himself while testifying in another criminal matter, thereby implying that the judge had relied on this belief in sentencing defendant here. | [
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N. J. Kaufman, J.
Plaintiff appeals an order by Wayne County Circuit Judge James N. Canham denying plaintiff’s motion for an order of superintending control directing defendant to reinstate a charge of second-degree murder against Janice Lee Alexander and bind her over for trial.
Ms. Alexander was charged with second-degree murder, MCLA 750.317; MSA 28.549, in connection with the slaying of William Robinson. On June 3, 1976, an examination began before defendant Judge Borman. Plaintiff attempted to introduce a statement given by Ms. Alexander to a police officer. The officer testified that Ms. Alexander had been given her Miranda rights and that she then asked him "if I thought she should have an attorney and I told her I thought she should tell me what happened”. Upon submission of briefs, defendant ruled the confession inadmissible and dismissed the case.
Plaintiff then sought an order of superintending control in Wayne County Circuit Court. Judge Canham noted that "[t]he Prosecutor’s argument rests on the assumption that Defendant’s question to the interrogating officer was merely a request for advice and not a request for counsel”. Judge Canham concluded, "[t]he Judge’s refusal to admit the statement, must, therefore, have been based on a determination that Defendant’s question was an indication of a desire for counsel * * * . Further interrogation was therefore clearly in violation of Miranda
His conclusion was bolstered by specific language from Miranda holding that an indication in any manner that counsel is requested halts further questioning until counsel is produced. Further, Judge Canham persuasively distinguished other United States Supreme Court cases limiting the holding of Miranda in other areas. Judge Canham also cited People v Lewis, 47 Mich App 450; 209 NW2d 450 (1973), wherein this Court held that an ambiguous indication of an interest in having counsel required cessation of interrogation.
Noting the limited scope of review inherent in a superintending court, Judge Canham found no abuse of discretion.
This Court’s review of the circuit court’s denial is also subject to an "abuse of discretion” standard, People v Flint Municipal Judge, 41 Mich App 766, 770-771; 201 NW2d 111 (1972). See also People v Dellabonda, 265 Mich 486; 251 NW 594 (1933). Thus, the ruling of the reviewing court in this case can be overturned only if this Court finds that the reviewing court abused its discretion in finding that the examining magistrate did not abuse her discretion.
We find no abuse of discretion. Therefore, we affirm the circuit court. We note, in passing, that were we to examine the record de novo, we would find no error for the reasons so ably expressed by Judge Canham.
Affirmed.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).
We note that, although we do not examine the record de novo, it is clear to us that the officer expected Ms. Alexander to relate "what happened” in the absence of an attorney. This conclusion is especially valid when it is recognized that Ms. Alexander had not been schooled in either the subtleties of police interrogation or the law surrounding Miranda-type situations. | [
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] |
Per Curiam.
Appeal is taken by defendant, Eureka Tire Company, from a decision of the Workmen’s Compensation Appeal Board denying apportionment between Eureka Tire Company and Hosking Tire Company of an award of benefits to plaintiff. Eureka claims that the plaintiff’s back injury is the result of degenerative disk syndrome, which, in turn, spanned the course of plaintiff’s employment at both Eureka and Hosking. From this, Eureka maintains that degenerative disk syndrome is a disease within the contemplation of the apportionment statute so as to entitle it to contribution from Hosking.
There is no dispute by the parties as to the propriety of the award of benefits to plaintiff. The board found that plaintiff’s injury arose from and in the course of his employment as a tire recapper. Plaintiff was so employed by Hosking for a period of seven years and subsequently employed by Eureka for a period of two and one-half years when the disabling injury occurred. As a tire recapper, plaintiff’s duties included extensive bending and heavy lifting activity.
In denying apportionment, the board found that although the "plaintiff’s disability is the result of his heavy lifting duties at both employers”, it did not constitute an occupational disease within the meaning of the statute. Thus, we must determine whether an employment-related injury that results from the nature of an employee’s work duties is a "disease” as that term is used in the apportionment statute.
The language of the apportionment statute plainly makes it applicable only where a disabling disease arises from similar conditions of employment with multiple employers. As to the method of apportionment, the statute provides the following scheme:
"[A]ll employers named as defendants may appear, cross-examine witnesses, give evidence and defend both on the issue of the liability of the last employer to the employee and on the issue of their liability to the last employer. The hearing referee shall enter an order determining liability for compensation as between the employee and the last employer. The hearing referee shall apportion liability for compensation among the several employers in proportion to the time that the employee was employed in the service of each employer in the employment to the nature of which the disease was due and in which it was contracted and shall enter a separate order in favor of the last employer and against prior employers for their proportionate share of liability, which order may be enforced in the same manner as an award for compensation. Any order so entered may be appealed by any party and shall be reviewed in accordance with the procedure provided in this act. Any employer made a party under this section, prior to hearing, may inquire in writing of the employee claiming compensation, or of his attorney, the names and addresses of all employers and the approximate dates of employment, and the employee or his attorney shall answer to the best of his ability.” MCLA 418.435; MSA 17.237(435). (Emphasis added.)_
Thus, all prior employers, as defined elsewhere in the statute, for whom the injured employee has worked under conditions similar in nature to those from which his disease arose, are to be proportionately liable for payment of the benefits awarded.
Our research has disclosed no cases articulating the legislative intent underlying the statute. Nevertheless, the Legislature’s choice and pattern of words makes the intent clear and also provides the key for ascertaining the meaning of the term "disease”. Apportionment of financial liability for an employee’s disease-caused disability is designed to reflect the relative contribution of similar employment conditions at each employer to the occurrence of the disability. In other words, the fortuitous event of a disability, which is but the culmination of a prolonged exposure of the employee to deleterious employment conditions at multiple employers, should not result in the imposition of a financial burden only upon the last in the series of employers. It is the intent of the Legislature that each employer assume his fair share of the responsibility concomitant to receiving the employee’s services.
From the legislative intent, the meaning of "disease” as used in the statute becomes manifest. A disease is present for purposes of the apportionment statute whenever the evidence establishes that the compensable disability derives from the effects of continued and protracted exposure to the inherent elements of the employee’s employment. Thus, an injury arising from a single event is in nowise disease-caused. Similarly, injuries stemming from multiple events of trauma are not disease-caused. But those injuries resulting from the continual impact upon the body of the circumstances of employment effecting a gradual and increasing deterioration or impairment constitute disease-caused disabilities.
Our conclusion is supported by the rule of statutory construction that ascribes to words, not otherwise defined in the statute, their plain and ordinary meaning. Bingham v American Screw Products Co, 398 Mich 546, 563; 248 NW2d 537 (1976). Such meaning may be found by reference to Webster’s Third New International Dictionary, which defines disease as "an impairment of the normal state of the living animal * * * or of any of its components that interrupts or modifies the performance of the vital functions, being a response to environmental factors (as malnutrition, industrial hazards, or climate) * * * .”
In the instant case, the record supported the board’s factual determination that plaintiffs disability was caused by his strenuous duties performed at both Hosking and Eureka. Performance of those duties over the period of employment produced a gradual deterioration of plaintiffs back resulting in the occurrence of the ultimate disability. Accordingly, the disability was diseased-caused within the meaning we have attributed to that term. Therefore, the referee’s order apportioning the award between Hosking and Eureka pursuant to the statute should have been affirmed by the board.
We recognize that another panel of this Court held under similar factual circumstances involving an employee’s gradual loss of hearing, that the benefit award was not apportionable. Suffice it to state that were we presented with the same facts, our conclusion would differ.
Reversed and remanded for reinstatement of the referee’s order of apportionment. No costs, the construction of a statute being involved.
MCLA 418.435; MSA 17.237(435).
The pertinent text of the statute reads as follows:
"The total compensation due shall be recoverable from the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted. If any dispute or controversy arises as to the payment of compensation or as to liability therefor, the employee shall give notice to and make claim upon the last employer only and apply for a hearing against the last employer only. If the employee was employed by prior employers in an employment to the nature of which the disease was due and in which it was contracted, the hearing referee to whom the case is assigned or the director on motion made in writing by the last employer shall join any or all prior employers, mentioned in the motion, as parties-defendant.” Id. (Emphasis added.) See also Skowronski v Ajax Forging & Casting Co, 54 Mich App 136, 141; 220 NW2d 725, 727 (1974).
A prior employer is defined as:
"[A]n employer who has employed the employee for 6 months or longer during the 10 years preceding the date upon which the employee was last subjected to the conditions resulting in disability.” MCLA 418.435; MSA 17.237(435).
Skowronski v Ajax Forging & Casting Co, 54 Mich App 136; 220 NW2d 725 (1974). | [
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Per Curiam.
Plaintiff Nobel Smith was seriously injured in the course of his employment at the Great Lakes Steel Corporation. Smith was employed as an overhead crane operator in a particular building in the Great Lakes Steel complex. While in the process of making a lift, he heard a crackling noise and saw sparks flying. Concerned for his safety, Smith climbed over the controls, hung out of the window of the crane cab and dropped to the floor below, seriously injuring himself.
The cause of the sparking was determined to be a shunt cable which parted and made contact with the crane cab, creating an arc. The arc burned a two inch diameter hole through the wall of the cab before extinguishing itself.
Plaintiffs brought suit against Allendale Mutual Insurance Company, Great Lakes’ fire insurance carrier, and its agent, Factory Mutual Engineering Association, who conducted periodic inspections of Great Lakes Steel for fire hazards. Plaintiffs’ theory of the case was that the defendants were negligent in failing to discover and notify Great Lakes of the existence of a defective ungrounded electrical system in the area of the plant in which the accident occurred.
A jury trial was held in Wayne County Circuit Court which ended in a verdict for the plaintiffs in the combined amount of $860,000. Thereafter, the defendants moved for a judgment notwithstanding the verdict which was granted. Plaintiffs appeal. We affirm.
The proper standard for review of the grant of a judgment notwithstanding the verdict is whether the evidence at trial is sufficient to create jury questions on the appropriate legal issues. Andrews v Insurance Company of North America, 394 Mich 464; 231 NW2d 645 (1975).
Plaintiffs’ legal theory is derived from the case of Ray v Transamerica Insurance Company, first reported at 10 Mich App 55; 158 NW2d 786 (1968), and later at 46 Mich App 647; 208 NW2d 610 (1973).
In Ray v Transamerica, 10 Mich App 55; 158 NW2d 786 (1968), an injured employee brought an action against the defendant workmen’s compensation carrier. The theory of the case was that the defendant voluntarily undertook to provide safety inspection services and that it negligently performed this undertaking. The defendant moved for summary judgment based on a statute now repealed. The motion was denied, and, on interlocutory appeal, the Court held that the workmen’s compensation carrier was not immune from common-law tort liability for its own negligence.
In Ray v Transamerica, 46 Mich App 647, 657; 208 NW2d 610 (1973), the Court adopted the rule enunciated in 2 Restatement Torts, 2d, § 324A, p 142:
" 'One who undertakes, gratuitously or for consideration to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if " '(a) his failure to exercise reasonable care increases the risk of harm, or
" '(b) he has undertaken to perform a duty owed by the other to the third person, or
" '(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.’ ”
Plaintiffs’ suit was predicated on subparagraph (b). They claimed that the defendants, by conducting inspections of the Great Lakes Steel complex, had undertaken to assist Great Lakes in its duty to provide a safe place to work to its employees.
Liability under subparagraph (b) was discussed by the Court in the second Ray case:
"The further issue which must be resolved is whether plaintiff’s theory that defendant had undertaken to furnish safety inspection, giving rise to a duty to use reasonable care on behalf of the plaintiff, is supported by the record.
"Normally the issue of duty owed a particular person is a question for the trial court. Elbert v Saginaw, 363 Mich 463, 476 (1961). However, where, as here, the existence of a relationship between the parties determines the duty owed, and that relationship is not clear, the issue of duty may be properly given to the jury. Bonin v Gralewicz, 378 Mich 521, 526-527 (1966).
"This is not to say that a mere failure to suggest or recommend a safety change would impose a duty and liability. It would not. On the facts adduced, the jury must have found that defendant had voluntarily and actively undertaken to assist Chesley Industries in performing the obligation owed by every employer to his employees — to provide a safe place to work. Having undertaken the duty, defendant is held to a standard of due care.
"It is clear to us that the jury found a duty existed on the part of the defendant, that duty extended to the plaintiff because the plaintiff was clearly within the orbit of risk created by the negligent performance of the duty undertaken. The record supports this finding of the jury.” (Footnote omitted.) 46 Mich App at 653-654.
Thus, our inquiry is whether there is any evidence that the defendants voluntarily and actively undertook to assist Great Lakes in its obligation to provide a safe place to work for its employees. We find that the record is devoid of any such evidence.
The relationship of insurance carrier to employer does not, by itself, create any duties on the part of the insurance carrier. This is especially true in the present case where a fire insurance carrier, rather than a workmen’s compensation carrier, is involved. Since no duty was created by the relationship of the parties, the carrier must be shown to have taken some affirmative action to find a legal duty. Andrews v Insurance Co of North America, 60 Mich App 190, 197; 230 NW2d 371 (1975), remanded for reconsideration, 394 Mich 464; 231 NW2d 645 (1975).
Allendale Mutual did provide fire insurance to Great Lakes Steel, and its agent, Factory Mutual, did inspect the plant for fire hazards; however, the inspections were limited in both scope and purpose.
Factory Mutual was concerned with the detection of fire hazards and employed individuals who were specially trained in this area. The employees of Factory Mutual had no training in the area of employee safety nor did they hold themselves out as making inspections for this purpose. Factory Mutual did not inspect the electrical equipment or the cranes because they contained virtually no combustible material. Furthermore, it did not make any difference to Factory Mutual if the circuits around the cranes were grounded or ungrounded because neither posed a fire hazard.
Great Lakes Steel, on the other hand, had an electrical department which was responsible for keeping the equipment in good operating order by making inspections and repairs. The cranes were inspected by Great Lakes on a regular basis. Great Lakes also had an inspection program to detect hazardous conditions as relating to employee safety. Moreover, a representative of Great Lakes testified that he did not expect Factory Mutual to tell him how the cranes should be maintained, wired, or what fusing, if any, should be utilized. Also, any revision in the electrical circuit in the plant would be designed, planned, and performed by the various departments of Great Lakes Steel. Thus, Great Lakes did not expect any assistance from the defendants in providing a safe place to work for its employees.
We recognize that inspections may be limited. Any duty assumed by the defendants did not extend to the plaintiffs because employees were not included within the orbit of risk created by the duty assumed. We find that the inspections conducted by the defendants for fire hazards were not undertaken for the purpose of assisting Great Lakes Steel in providing a safe place to work for its employees. Since defendants assumed no duty to the plaintiffs, there was no jury question presented on the allegation of negligence. The trial judge was correct in granting a judgment notwithstanding the verdict.
Affirmed. | [
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T. M. Burns, P. J.
This is a medical malpractice action against Mt. Clemens General Hospital and eight individual doctors. Plaintiff filed his complaint and four subsequent amended complaints seeking to recover for the alleged malpractice of the various defendants in the discovery and treatment of a cancer. On motions brought by defendants, the trial court granted accelerated judgment, GCR 1963, 116.1(5), holding that all claims against the defendants were time barred under MCLA 600.5805(3); MSA 27A.5805(3) and MCLA 600.5838; MSA 27A.5838.
Our review of the trial court’s determination is guided by two principles: first, under the above cited statutes, "an action based on malpractice by a state licensed person must be brought within two years of the time when such person discontinues treating or otherwise serving the plaintiff, or within two years of the time when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the asserted malpractice, whichever is later”, Dyke v Richard, 390 Mich 739, 747; 213 NW2d 185 (1973); second, if disputed fact issues exist on either point of the statute of limitations analysis, summary dismissal by accelerated judgment is improper, Kelleher v Mills, 70 Mich App 360; 245 NW2d 749 (1976).
The facts which apply to the statute of limitations question allow us to consider the defendants in two groups; those who treated plaintiff before February 1, 1971, and those treating him after that date. 5The asserted malpractice of the defendants in the first group is a failure to run appropriate tests and diagnose plaintiff’s malady as cancer, rather than an ulcer, before plaintiff was told he had cancer on February 1, 1971. None of the doctors in this group treated plaintiff after January 14, 1971. They were made defendants in the original complaint filed on April 19, 1974, the first and second amended complaints filed May 10, 1974, and September 15, 1975, respectively.
The alleged malpractice of the second group is failure to note a possible second cancer or to perform an endoscopic exam in February of 1971. The exam was performed after seven months, in September of 1971, and a further cancer discovered which led to more surgery at that time. These defendants were brought into the case by the third and fourth amended complaints filed January 29, 1976, and June 15, 1976.
I
We turn our attention to the first group of doctors. None of these doctors treated plaintiff after January 14, 1971. The first complaint in this case was filed April 19, 1974. Obviously, unless there are fact questions under the "discovery” branch of the accrual rule, accelerated judgment as to these defendants was proper.
Defendants argue there are no fact questions. They argue that as a matter of law, plaintiff was put to inquiry about their possible malpractice in misdiagnosing his ailment when he was told he had cancer in February of 1971. Under this argument, plaintiff knew or should have known, of the asserted malpractice in the incorrect diagnosis as soon as the correct diagnosis was made. Primary reliance is placed on Johnson v Caldwell, 371 Mich 368; 123 NW2d 785 (1963), and Patterson v Estate of Flick, 69 Mich App 101; 244 NW2d 371 (1976), lv granted, 399 Mich 838 (1977), and we admit that language in these cases supports this proposition, even though neither is a true misdiagnosis case.
Under Dyke, the question is when was the "asserted malpractice” discovered or, when should it have been discovered in the exercise of reasonable diligence. Does the fact that plaintiff is given a correct diagnosis always require that he be charged with notice that the earlier, and now known to be incorrect, diagnosis was malpractice? We think not.
There will be cases where no reasonable minds could differ on the discovery question and accelerated judgment would be proper in such a case. However, in this case there is some room to question whether plaintiff knew or should have known that this first group of doctors had committed malpractice when he was told of his true condition in February of 1971.
Plaintiff’s knowledge of his true condition is but one factor in evaluating the question of reasonableness of his efforts to discover the asserted malpractice. See, e.g., Cates v Frederick W Bald Estate, 54 Mich App 717; 221 NW2d 474 (1974), lv den, 394 Mich 758 (1975), Patterson v Estate of Flick, supra, (W. S. White, J., dissenting). Also relevant might be the plaintiff’s mental state, assurances by medical personnel falling short of fraudulent concealment, and information received from others which show plaintiff was aware of the cause of action.
On the record before us, reasonable minds could differ as to the date plaintiff must be charged with knowledge of the asserted malpractice. Accelerated judgment as to this group of defendants was improper.
II
The same principles guide our analysis of the claims against the second group of doctors. Drs. Matthews and Schmunk continued to treat plaintiff, even after they were joined in this suit, until his death. However, it is unclear whether this treatment was "as to the matters out of which the claim for malpractice arose”. Given the circumstances of this case, we do not believe it is necessary to determine how broadly or narrowly those terms should be applied and again turn to the discovery portion of the accrual rule.
The three doctors involved in this part of the case were responsible for the diagnosis of plaintiff’s cancer and the first surgery in February of 1971. Drs. Schmunk and Matthews were also responsible for performance of the endoscopic examination in September of 1971. This led to discovery of a second cancerous area and its surgical removal. The alleged malpractice by Drs. Matthews and Schmunk is failure to read and act on a radiologist report prepared by Dr. Curatolo in February of 1971, which indicated the possibility of this second cancer and do the tests recommended in the report at that time rather than waiting until September of 1971. The alleged malpractice of Dr. Rousseau is failure to note the second cancer when he read the x-rays in February of 1971.
Although defendants argue that Dr. Curatolo’s report was in the hospital file and, therefore, with reasonable diligence, plaintiff could have discovered their alleged malpractice long before they were actually brought into the suit in 1976, it appears that plaintiff (and plaintiff’s counsel) first learned of the possibility that the second cancer was diagnosable in February of 1971 (as opposed to its actual discovery date in September of that year) when Dr. Curatolo was deposed on January 15, 1976. Defendants also argue that when the recommended exam was performed and the second cancer discovered in September of 1971, the failure to act in February of 1971 was readily apparent and, therefore, the statute of limitations should run from that date.
We reject the contention that because Dr. Curatolo’s report was in the hospital file, a fact not shown on this record, that plaintiff is charged with knowledge of its contents from that date. Plaintiff is alleging that he was never informed of the necessity for an endoscopic exam in February of 1971. It seems unfair that we should require a patient to question his physician about the contents of his medical file as to whether tests have been recommended by specialists sought by the physician and not performed. The responsibility of conveying this type of information must be with the physician, not the patient.
A jury might infer that plaintiff could, with reasonable diligence, have discovered the asserted malpractice within a short time after the second cancer was found in September of 1971. But, we will not hold that such is the only possible finding. There are other medical-factual possibilities for the existence of this abnormal growth in September of 1971. Plaintiff had knowledge that this area should have been examined and the cancer diagnosed earlier only when Dr. Curatolo was deposed in January of 1976. Under Whitney v Gallagher, 64 Mich App 46; 235 NW2d 57 (1975), accelerated judgment was improperly entered as to this second group of defendants.
Reversed and remanded for further proceedings not inconsistent with this opinion. Costs to abide the final result.
Carl Schalm, the named plaintiff in this case, died on February 14, 1976, and thereafter his estate was substituted as a party plaintiff.
We are concerned with the statute as it existed before the amendments of 1975 PA 142.
The defendants in this group are Mt. Clemens General Hospital, Dr. Moufid Ragheb, M. D., Dr. Robert C. Ward, D. O., Dr. John W. Phardel, Dr. Robert O. Fagen, D. O. and Dr. Peter Rudnikoff, D. O.
The defendants in the second group include Dr. Christian Matthews, Jr., M. D., Dr. Robert F. Schmunk, M. D., and Dr. Daniel Rousseau, M. D.
The hospital, and defendants Dr. Ward, Dr. Phardel and Dr. Ragheb.
Dr. Fagen.
Dr. Rudnikoff.
Slightly different facts apply to Dr. Rousseau, but he may still be considered with this group.
Drs. Matthews and Schmunk.
Dr. Rousseau is a radiologist who read x-rays in February of 1971. He did not note the fourth lesion discovered in September of 1971 in his report. It was noted by Dr. Curatolo ten days later, but Drs. Matthews and Schmunk did not act on Dr. Curatolo’s recommendation contained in his report until September of 1971.
In Johnson, the malpractice was misadvice. The plaintiff had been told that nothing could be done for her problem. She was charged with discovery of her cause of action when she was later told that surgery would correct her condition. 371 Mich at 380.
In Patterson, the plaintiff was told immediately after surgery that a nerve had been accidentally severed during surgery. She was charged with notice of her claim at that time.
For a collection of cases dealing with improper diagnosis as it is affected by the discovery accrual rule, see 80 ALR2d 368, § 7.
See, Cates v Bald Estate, supra, and Kelleher v Mills, supra, and Winfrey v Farhat, 382 Mich 380; 170 NW2d 34 (1969).
This phrase appears in MCLA 600.5838; MSA 27A.5838 and appears to be a further limitation of the rule stated in DeHaan v Winter, 258 Mich 293; 241 NW 923 (1932).
Actually, this was a fourth cancerous area, three others having been discovered and removed in the February surgery. | [
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] |
J. H. Gillis, P. J.
On May 13, 1975, defendant was found guilty by a jury of unlawfully driving away an automobile. MCLA 750.413; MSA 28.645. Defendant was sentenced to a prison term of from 3 years, 4 months, to 5 years on August 4, 1975. He appeals as of right.
Defendant raises this issue: Whether unlawful use of an automobile is a necessarily lesser included offense of unlawfully driving away an automobile.
The elements of the crime of unlawfully driving away an automobile, MCLA 750.413; MSA 28.645, are as follows:
1) The motor vehicle must have belonged to another.
2) Possession of the motor vehicle must have been taken.
3) Defendant must have driven or taken away the motor vehicle.
4) The taking of possession and the driving or taking away must have been done without authority.
5) Defendant must have intended to take unlawful possession of the vehicle and drive or take it away, knowing that he had no authority to do so. See People v Shipp, 68 Mich App 452, 455; 243 NW2d 18 (1976).
The elements of unlawful use of an automobile, MCLA 750.414; MSA 28.646, are as follows:
1) The motor vehicle must have belonged to another.
2) Defendant must have taken or used the motor vehicle.
3) The taking or using must have been done without authority.
4) Defendant must have intended to take or use the vehicle, knowing that he had no authority to do so.
MCLA 750.414; MSA 28.646 uses the phrase "without intent to steal”. The absence of an intent to steal is not an element that the people must show beyond a reasonable doubt. This language merely indicates that the statute applies even though there is no intent to steal.
Taking possession of a motor vehicle without authority is prohibited by MCLA 750.413; MSA 28.645. Taking possession of a motor vehicle without authority is not prohibited by MCLA 750.414; MSA 28.646. Otherwise, the two statutes prohibit the same conduct and have the same elements. See People v Blocker, 45 Mich App 138, 142; 206 NW2d 229 (1973).
"Lawful possession” is not an element of the offense of unlawful use of an automobile. It is just that "unlawful possession” does not have to be shown to support a conviction for unlawful use of an automobile. Confusion concerning lesser offenses often results from an analysis which treats the absence of an element as a positive element of a crime. See People v Chamblis, 395 Mich 408, 424; 236 NW2d 473 (1975).
Unlawful use of an automobile is a necessarily lesser included offense of unlawfully driving away an automobile. Failure of the trial court to give a requested instruction on a necessarily lesser in- eluded offense is reversible error. People v Ora Jones, 395 Mich 379, 390; 236 NW2d 461 (1975).
Conviction of unlawfully driving away an automobile is reversed and the case is remanded for entry of judgment of conviction of unlawful use of an automobile. If, however, the prosecuting attorney is persuaded that the ends of justice would be better served, upon notification to the trial court before resentencing, the trial court shall vacate the judgment of conviction and grant a new trial on the original charge. See People v Lank Thomas, 399 Mich 826; 249 NW2d 867 (1977).
We note that this case was tried before People v Ora Jones, supra, and we note that Judge Boucher is not clairvoyant, but in People v Lank Thomas, supra, defendant was convicted November 8, 1974, long before People v Ora Jones was released, and his conviction was reversed.
Remanded to the trial court for proceedings consistent herewith. | [
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Bronson, J.
Defendant appeals by leave granted a January 10, 1977, order denying his motion for a blood test and jury trial at county expense in a paternity action.
Defendant’s motion was phrased in constitutional terms. He asserted that he was entitled to a blood test and jury trial at county expense because he had shown indigency for purposes of obtaining appointed counsel and that denying an indigent the requested fee waivers violated the due process and equal protection clauses of the United States and Michigan Constitutions.
The trial court denied defendant’s motion on two grounds. First, the trial court denied the motion because defendant had "failed to request said jury trial and blood tests under the Michigan Paternity Act and under the Michigan statute dealing with indigency”. The second basis for the trial court’s denial of defendant’s motion was that Artibee v Cheboygan Circuit Judge, 397 Mich 54; 243 NW2d 248 (1976), did not mandate a jury trial or blood test as a matter of constitutional law.
We hold that the trial court correctly denied defendant’s motion for a jury trial and blood test at county expense.
First, denial of the motion was proper because defendant had failed to demonstrate indigency for the purpose of obtaining a jury trial or blood test fee waiver. Defendant argues that once he has demonstrated indigency for the purpose of obtaining appointed counsel, he should not be forced to demonstrate inability to pay again for the purpose of a jury trial or blood test fee waiver. Inability to pay for counsel, however, necessarily involves different considerations than inability to pay a $30 jury fee or a blood test fee. It is not a denial of due process to require a showing of indigency or inability to pay as a precondition to a fee waiver. See Artibee v Cheboygan Circuit Judge, supra. As defendant has not demonstrated an inability to pay required costs, it is not a denial of due process or equal protection to deny his motion for a fee waiver. Cf. Boddie v Connecticut, 401 US 371; 91 S Ct 780; 28 L Ed 2d 113 (1971).
Furthermore, GCR 1963, 120.3 provides:
"In instances where the person is not receiving public assistance, the court shall order waiver of the payment of all fees and costs as to a person in the action, required to be paid by law or court rule, or shall order the suspension of the payment of those fees or costs until the conclusion of the litigation upon that person submitting to a judge of the court an ex parte affidavit stating facts showing that person’s inability to pay those fees and costs because of indigency.”
As a procedure insuring defendant’s due process rights is available, it was not unconstitutional to deny a fee waiver where defendant has deliberately avoided utilizing that procedure.
Defendant’s second argument is that as a paternity action is "quasi-criminal” and, as a defendant could be imprisoned for up to one year for default of payment after being adjudged the father of a child, MCLA 722.719(c); MSA 25.499(c), the criminal jury trial guarantees of Const 1963, art 1, § 20, and US Const, Am VI apply. Implicit in this argument is the assumption that no fee may be imposed for exercise of the criminal jury trial right. See People v Hope, 297 Mich 115; 297 NW 206 (1941). This argument is faulty in two respects. First, even though some criminal procedural protections have been held applicable to paternity actions, it is generally accepted in Michigan that paternity actions are both civil and criminal in nature. People v Martin, 256 Mich 33; 239 NW 341 (1931), McDaniel v Jackson, 78 Mich App 218; 259 NW2d 563 (1977). Unlike a criminal prosecution, the purpose of a paternity action is not to punish a defendant. People v Stoeckl, 347 Mich 1, 8-11; 78 NW2d 640 (1956) (Smith, J., dissenting), Romain v Peters, 9 Mich App 60; 155 NW2d 700 (1967). We cannot say that a paternity action is a "criminal prosecution” for purposes of the constitutional jury trial guarantee. See, also, Romain v Peters, supra.
Second, a paternity action does not result in imprisonment, but an order of filiation and liability for support. Thus, even if a paternity action is viewed as a criminal prosecution, a criminal jury trial is not constitutionally required; imprisonment is not a direct result of the action. See Frank v United States, 395 US 147; 89 S Ct 1503; 23 L Ed 2d 162 (1969), Duncan v Louisiana, 391 US 145; 88 S Ct 1444; 20 L Ed 2d 491 (1968), Cahill v 15th District Judge, 70 Mich App 1; 245 NW2d 381 (1976). We hold that a defendant in a paternity action is not entitled to the criminal jury trial guarantee under the Sixth Amendment or Const 1963, art 1, § 20. Also, GCR 1963, 120.3 insures a defendant’s rights under the due process clauses of the United States and Michigan Constitutions.
We need not reach the issue of whether an indigent defendant in a paternity action has a constitutional right to a blood test at county expense. Under Michigan law, a defendant has a statutory right to a blood test, MCLA 722.716(a); MSA 25.496(a), and the required fee must be waived if defendant demonstrates indigency. GCR 1963, 120.3. Defendant in the case at bar has not waived his right to demand a blood test, as the trial has not yet begun. See MCLA 722.716(a); MSA 25.496(a). Thus, he may still request a fee waiver under GCR 1963, 120.3.
Defendant in the case at bar has not demonstrated indigency for the purpose of obtaining a fee waiver for a jury trial and blood test. For this reason and also for the reason that GCR 120.3 provides for fee waiver or suspension for all indigent parties upon a showing of inability to pay, we dismiss defendant’s constitutional claims. We also note that the jury trial aspect of paternity proceedings is not criminal in nature. We therefore affirm the trial court’s denial of defendant’s motion for a jury trial and blood test at county expense and remand this case for further proceedings. Defendant may demand a jury trial under MCLA 722.715(a); MSA 25.495(a), and may move for a fee waiver or suspension under GCR 1963, 120.3 on remand, but must comply with the requirement that he show inability to pay the required costs.
The trial court’s denial of defendant’s motion is affirmed and this case is remanded for further proceedings.
M. F. Cavanagh, P. J., concurs in the result.
See Artibee v Cheboygan Circuit Judge, 397 Mich 54; 243 NW2d 248 (1976), which guaranteed a due process right to appointed counsel in a paternity action to an indigent defendant.
The parties have stipulated the grounds upon which the motion was denied.
We also hold that defendant has not waived his right to demand a jury trial in the case at bar. See MCLA 722.715(a); MSA 25.495(a). GCR 1963, 508.4 provides in part:
"The failure of a party to file a demand as required by this rule or to deposit the jury fee by the close of the pretrial conference constitutes waiver by him of trial by jury.”
In this case, defense counsel made an oral demand for a jury trial and fee waiver at the pretrial conference and the trial judge expressly allowed him two weeks to file written motions. Defense counsel did so. Filing the written motions within the time specified by the trial judge satisfied GCR 1963, 508.4. Defendant may therefore still demand a jury trial under MCLA 722.715(a); MSA 25.495(a), and a jury trial fee waiver under GCR 1963, 120.3 on remand.
MCLA 600.2529(4); MSA 27A.2529(4).
The trial court fixes the compensation of the expert who conducts the blood test and may apportion the cost between the parties. MCLA 722.716(c); MSA 25.496(c).
See, also, MCLA 600.2529(12); MSA 27A.2529(12), giving the presiding judge discretionary authority to waive or suspend required fees.
See, e.g., People v McFadden, 347 Mich 357; 79 NW2d 869 (1956) (notice of alibi required); People v Stoeckl, 347 Mich 1; 78 NW2d 640 (1956) (comment on defendant’s failure to testify held reversible error); McDaniel v Jackson, 78 Mich App 218; 259 NW2d 563 (1977) (double jeopardy applies to paternity action). But see Romain v Peters, 9 Mich App 60; 155 NW2d 700 (1967) (unanimous jury verdict not required in paternity action).
An action for contempt for violation of a filiation and support order may result in imprisonment, but not the paternity action itself. We express no opinion on the right to a jury trial at a contempt hearing under MCLA 722.719(c); MSA 25.499(c), an issue not raised in the case at bar. | [
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] |
D. R. Freeman, J.
Defendants appeal the issuance of an order of superintending control, GCR 1963, 711, which ordered plaintiff reinstated in his job as a police officer with defendant City of Jackson’s police force.
Plaintiff was discharged from his employment on August 27, 1975, by the joint action of the City Manager and the Chief of Police. Plaintiff’s discharge followed an investigation of allegations that plaintiff, as secretary of the local chapter of the Fraternal Order of Police (hereafter FOP) had misused funds entrusted to him. Prior to being discharged plaintiff submitted his resignation as secretary of the FOP, tendered $300 to an FOP trustee "as good faith money in case there was any problem”, and disclaimed any intent to defraud. Except for the misuse of funds incident, plaintiff’s record with the Jackson police force was unblemished during the nine years he was an officer.
Immediately following his discharge, plaintiff requested a review of the discharge by the Jackson Civil Service Board, as was his right under the Jackson Civil Service Ordinance (Ordinance No. 67-14). A hearing before the board revealed that the books of the FOP were so poorly kept that any audit would be futile, that the confused state of the FOP’s books preceded plaintiffs term as secretary, that it was "common practice” for FOP secretaries to make personal use of the funds and later replace them, and that there appeared to be a surplus of funds (not including the $300 tendered by plaintiff). The board made numerous findings, and on December 16, 1975, the board ordered plaintiff reinstated but denied any back pay.
On December 18, 1975, the City Manager requested the City Commission to review the matter and make a final determination. The request was made pursuant to Jackson Civil Service Rule 5.6:
"5.6 Decisions of Civil Service Board. The decisions of the Civil Service Board shall be final in cases where bias has been exercised because of race, religion, politics, ancestry or union affiliations of the employee, and in all other cases, the City Manager may refer decisions to the City Commission for review and final determination when he does not agree with the decisions of the Civil Service Board. In any case, the Civil Service Board, after a thorough investigation and review, will provide the employee with a written notice of its decision.”
Rule 5.6 was promulgated under Jackson Civil Service Code § 1.238, which provides in part:
"In the event that the Civil Service Board recommends reinstatement of such employee, the City Manager shall either forthwith cause such employee to be reinstated or shall request [a review] of said Civil Service Board action by the City Commission. If so requested under such circumstances, the City Commission shall review the entire matter and make a final determination either that (1) the employee be rein stated, as recommended, or (2) that the original action of the appointing authority be affirmed.”
At an open meeting on February 17, 1976, the City Commission voted seven to one to discharge plaintiff. The City Commission’s vote was taken after the commission reviewed the Civil Service Board’s findings and entertained comments from any interested person. Some time before the February 17, 1976, meeting the City Commission and the Civil Service Board had a private meeting at which neither plaintiff, plaintiff’s attorney, nor the city attorney were present.
Plaintiff sought superintending control in the circuit court. A July 28, 1976, decision of the circuit court found that the review by the City Commission violated equal protection and due process principles. In issuing an order of superintending control, the circuit court affirmed the finding, of the Jackson Civil Service Board and ordered the plaintiff reinstated.
Public employment has been found to be a property right which is entitled to the due process safeguards of US Const, Am XIV and Const 1963, art 1, § 17. See cases cited in Perry v Sindermann, 408 US 593, 597; 92 S Ct 2694, 2697; 33 L Ed 2d 570, 577 (1972). Michigan courts have held that a police officer’s employment is an interest which requires at least "rudimentary due process”. Sponick v Detroit Police Department, 49 Mich App 162, 188; 211 NW2d 674, 686 (1973), Montiy v Civil Service Board of East Detroit, 54 Mich App 510; 221 NW2d 248 (1974). Such due process requires, at least, notice and an opportunity to be heard. See Bundo v Walled Lake, 395 Mich 679, 696; 238 NW2d 154, 162 (1976). Underlying due process safeguards is the right not to have determinations made in an arbitrary and capricious manner with out reasonable standards. Without this right, due process safeguards are meaningless.
In Milford v People’s Community Hospital Authority, 380 Mich 49; 155 NW2d 835 (1968), it was held that denying a physician working privileges in a public hospital under standardless hospital bylaws was a denial of due process. The Milford Court, at 58, cited language from Napuche v Liquor Control Commission, 336 Mich 398, 403; 58 NW2d 118, 120-121 (1953), which is relevant to the case at bar:
" 'Due process of law requires notice and opportunity to be heard. It imports the right to a fair trial of the issues involved in the controversy and a determination of disputed questions of fact on the basis of evidence.’
" 'But there must be a hearing in a substantial sense. And to give the substance of a hearing, which is for the purpose of making determinations upon evidence, the officer who makes the determinations must consider and appraise the evidence which justifies them.’ * * *
" 'The maintenance of proper standards on the part of administrative agencies in the performance of their quasi-judicial functions is of the highest importance and in no way cripples or embarrasses the exercise of their appropriate authority. On the contrary, it is in their manifest interest. For, as we said at the outset, if these multiplying agencies deemed to be necessary in our complex society are to serve the purposes for which they are created and endowed with vast powers, they must accredit themselves by acting in accordance with the cherished judicial tradition embodying the basic concepts of fair play.’ ” (Citations omitted.)
Under the ordinances and rules of the City of Jackson the City Commission acts as a quasi-judicial appellate body in cases such as the one at bar. It so acted in the instant case. Although notice and a hearing are required, the Jackson scheme does not provide any due process safeguards on the exercise of the City Commission’s powers. The City Commission’s decision may be arbitrary and capricious. This is not constitutional. The constitutional impropriety of such a system is made all the greater by the unbridled review of a determination in which due process safeguards and standards are recognized and adhered to.
The appellate process established by the City of Jackson for employees, such as plaintiff, whose jobs are in jeopardy is also unconstitutional because it violates equal protection concepts in permitting only one of two equal litigants to appeal. US Const, Am XIV and Const 1963, art 1, § 2. An employee such as plaintiff and the City Manager are adversaries in employment disputes. Under equal protection concepts opposing litigants in a judicial system, whether quasi-judicial or otherwise, are treated equally. According to defendant’s ordinances and rules, the City Manager may obtain review of Civil Service Board decisions by the City Commission, but an employee such as plaintiff does not have a corresponding right. This amounts to a denial of equal protection of the laws.
As in Manistee Bank & Trust Co v McGowan, 394 Mich 655, 671; 232 NW2d 636, 642 (1975), it does not matter how our analysis is characterized:
"Whatever label is attached to the analysis — whether traditional equal protection, Dandridge test, Reed test, means scrutiny, or 'a complete and realistic balancing of interests’ — 'the governing rule is one of reason: The Equal Protection Clause, like the Due Process Clause, is a guaranty that controls the reasonableness of governmental action.’ The classification must be a reasonable one, and it must bear a reasonable relation to the object of the legislation.” (Footnotes omitted.)
In the instant case only one litigant is permitted an appeal to the City Commission. We find no facts which can reasonably sustain such a distinction, and defendant suggests none. Such a legislative distinction is unreasonable and arbitrary. It is a denial of equal protection of the laws to the employee.
Defendants’ contention that plaintiff is not "aggrieved” by the system, because plaintiff was victorious before the Civil Service Board and therefore did not need to appeal, is unacceptable. While it is true that a person cannot attack the constitutionality of a statute which does not apply to him, Mary v Lewis, 399 Mich 401, 416; 249 NW2d 102, 108 (1976), the city ordinances and rules enabling the City Manager to appeal certainly apply to plaintiff. It is his reinstatement and employment future which are at stake.
For the reasons stated above, the decision of the circuit court is affirmed.
Affirmed. | [
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Per Curiam.
On March 16, 1979, defendant was convicted by a jury of criminal sexual conduct in the second degree, contrary to MCL 750.520c(l)(a); MSA 28.788(3)(l)(a). Defendant was sentenced to a term of 3 to 15 years imprisonment and now appeals by right.
The determinative issue in this appeal is whether the trial court was legally correct in instructing the jury that voluntary intoxication is not a defense to the crime of second-degree criminal sexual conduct. We hold that no error was committed.
It is the general rule that voluntary intoxication does not negate an accused’s general intent which is necessary for the commission of certain crimes. Contrary to defendant’s assertion, second-degree criminal sexual conduct is a crime which only requires a general intent. The relevant statutory provisions state:
"(1) A person is guilty of criminal sexual conduct in the second degree if the person engages in sexual contact with another person and if any of the following circumstances exists:
"(a) That other person is under 13 years of age.” MCL 750.520c(l)(a); MSA 28.788(3)(l)(a).
"Sexual contact” is defined in MCL 750.520a(g); MSA 28.788(l)(g), which provides as follows:
"* * * the intentional touching of the victim’s or actor’s intimate parts or the intentional touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or grati&cation. ” (Emphasis added.)
The underlined portion reveals that defendant need not have specifically intended to perpetrate the touching for the purpose of sexual arousal or gratification as long as such a purpose may be construed from this act of touching. Therefore, it must be concluded that only a general intent is required in order to perpetrate the crime of second-degree criminal sexual conduct.
Under the statute governing rape prior to the enactment of the criminal sexual conduct act, supra, rape was not a specific intent crime and the defense of intoxication did not apply. People v Taylor, 73 Mich App 139, 143; 250 NW2d 570 (1977). Likewise, before its repeal, the offense of taking indecent liberties with a child under 16 years of age was to be held a general intent crime. People v Zuniga, 56 Mich App 231, 235; 223 NW2d 652 (1974). It was because prior law did not adequately protect victims of sexual attack that the Michigan Legislature passed the criminal sexual conduct act. Note, Criminal Law — Sexual Offenses —A Critical Analysis of Michigan’s Criminal Sexual Conduct Act, 25 Wayne L Rev, 203-204 (1976). If the purpose of the new statute was to more adequately protect victims of sexual molestation, it hardly follows that to the new statute a new element, viz: specific intent, would be added.
Since it is the general rule that an accused’s general intent may not be negated by his voluntary intoxication, see generally 1 Gillespie, Michigan Criminal Law & Procedure (2d ed, 1979 rev), § 44, p 91, the trial court properly instructed the jury that voluntary intoxication was not a defense to the charge of second-degree criminal sexual conduct.
Affirmed.
MCL 750.520; MSA 28.788 (now repealed).
"[T]wo elements must be shown to sustain a conviction for taking indecent liberties. First, there must be an assault and second, the liberties taken must be of such a nature as the common sense of society would brand as indecent and improper. Assault is a general intent crime and, therefore, a purposeful touching is all that is required.” (Emphasis supplied.) | [
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Allen, J.
On October 1, 1979, defendant pled guilty to delivery of less than 50 grams of cocaine, in violation of MCL 333.7401(2)(iv); MSA 14.15(7401)(2)(iv), and to being a third felony offender in violation of MCL 769.11; MSA 28.1083. Pursuant to a plea and sentence agreement, defendant was sentenced to eight years with the Michigan Corrections Commission. Defendant’s sentence was a determinate eight years with no minimum nor maximum. Defendant appeals as of right from both his conviction and sentence.
First, defendant maintains that his conviction must be set aside because the Public Health Code of 1978 for controlled substances violates the "title-object” clause of the Michigan Constitution. Defendant’s argument has recently been before this Court in People v Trupiano, 97 Mich App 416; 296 NW2d 49 (1980). Trupiano contains an excel lent analysis of defendant’s arguments and concludes that the body of the Public Health Code of 1978 does not violate the "title-object” clause of the Michigan Constitution. We hold likewise.
However, defendant’s claim of error with regard to his sentencing is more persuasive. Defendant maintains that his sentencing as an habitual offender must be indeterminate. We agree. Nowhere can there be found specific statutory authority for a determinate sentence. People v Roberts, 87 Mich App 262, 264-265; 274 NW2d 30 (1978), lv den 406 Mich 874 (1979).
Prior to amendment, effective September 1, 1978, a third felony offender could "be sentenced to imprisonment for a term not more than twice the longest term prescribed by law for a first conviction of such offense or for any lesser term in the discretion of the court”. MCL 769.11; MSA 28.1083. (Emphasis added.) The courts of this state had construed this language and determined that the indeterminate sentence act did not apply to habitual criminal convictions. People v Ungurean, 51 Mich App 262, 267; 214 NW2d 873 (1974). See generally, In re Wilson, 295 Mich 179; 294 NW 145 (1940), overruled by Brinson v Genesee Circuit Judge, 403 Mich 676; 272 NW2d 513 (1978).
In 1978, the Legislature amended MCL 769.11; MSA 28.1083, to eliminate the phrase "in the discretion of the court” in the quoted language above. Additionally, the Legislature added subparagraph (2) which states:
"If the court pursuant to this section imposes a sentence of imprisonment for any term of years, the court shall fix the length of both the minimum and maximum sentence within any specified limits in terms of years or fraction thereof, and the sentence so imposed shall be considered an indeterminate sentence.”
Prior to the time this amendment became effective in September, 1978, panels of this Court reached different results in applying the indeterminate sentence act to habitual or multiple offenders. In People v Redwine, 73 Mich App 83; 250 NW2d 550 (1976), a panel of this Court held (2 to 1) that a defendant who is an habitual offender, although not charged as such, comes within the purview of the indeterminate sentencing act and must be given an indeterminate sentence. The defendant’s application for leave to appeal was ordered held in abeyance pending decision in Brinson v Genesee Circuit Judge, 403 Mich 676; 272 NW2d 513 (1978). In January 1977, while Brinson was still pending, another panel of this Court held (2 to 1) that a defendant who is an habitual offender, although not charged as such, did not come within the purview of the indeterminate sentencing act and that determinate sentencing was proper. People v Banks, 73 Mich App 492; 252 NW2d 501 (1977).
After the September 1978 amendment to the habitual offender act, a panel of this Court was again confronted with the issue of whether an habitual offender, although not charged as such, comes within the purview of the indeterminate sentencing act and must be given an indeterminate sentence. A two judge majority answered in the affirmative. Roberts, supra. The Michigan Supreme Court finally addressed this issue in Brinson, supra, in December 1978. A unanimous Court held that an habitual offender, although not charged as such, does indeed come within the purview of the indeterminate sentencing act and that such a defendant must be given an indeterminate sentence. Shortly after Brinson, the application for leave to appeal the Redwine decision which was in accord with the later Brinson decision, which had been held in abeyance pending Brinson, was denied. Redwine, supra, lv den 405 Mich 838 (1979). However, the Supreme Court did not specifically address the language contained in the Roberts decision, stating that there was no specific statutory authority for determinate sentencing, the 1978 amendment to the habitual offender act, nor the issue of whether an habitual offender, charged as such under the provisions of the habitual offender act, comes within the purview of the indeterminate sentencing act and must therefore be given an indeterminate sentence.
This issue is one of first impression. However, the legislative statutory mandate is clear. Subparagraph (2) of MCL 769.11; MSA 28.1083 clearly and specifically states that if a defendant is sentenced to imprisonment for any term of years as an habitual offender pursuant to this section of the habitual offender act, the court shall fix both the minimum and maximum sentence and that the sentence imposed shall be considered an indeterminate sentence. The sentencing court is allowed to sentence an habitual offender to "twice the longest term prescribed by law for a first conviction of that offense or for 'a lesser term”, MCL 769.11(1)(a); MSA 28.1083(l)(a), or, if the subsequent felony is punishable by life imprisonment upon a first conviction, to "imprisonment for life or for a lesser term”, MCL 769.11(l)(b); MSA 28.1083(l)(b). Appellee’s assertion that the term "for any term of years” in subparagraph (2) is entirely separate and distinct from the terms "for a lesser term” in subparagraphs (l)(a) and (l)(b) is not persuasive.
It is axiomatic that a court must enforce clear and unambiguous statutory provisions as written. Metropolitan Council #23, AFSCME v Oakland County Prosecutor, 409 Mich 299, 318; 294 NW2d 578 (1980), Nordman v Calhoun, 332 Mich 460, 465; 51 NW2d 906 (1952), Ypsilanti Police Officers Ass’n v Eastern Michigan University, 62 Mich App 87, 92; 233 NW2d 497 (1975). The Legislature is presumed to have intended the plain meaning of the words used by it. Fuller Central Park Properties v Birmingham, 97 Mich App 517; 296 NW2d 88 (1980), Florentine Ristorante, Inc v City of Grandville, 88 Mich App 614; 278 NW2d 694 (1979). Correct and proper interpretation means giving effect to every word of the statute. Every effort must be made to avoid declaring any portion of the Legislature’s language to be mere surplus-age. Fuller, supra, Deshler v Grigg, 90 Mich App 49; 282 NW2d 237 (1979), Stowers v Wolodzko, 386 Mich 119; 191 NW2d 355 (1971).
If we accepted appellee’s argument that the phrase "for a lesser term” allowed the court to impose a determinate sentence while the phrase "for any term of years” was synonymous with the imposition of solely indeterminate sentences, it would result in a finding that the entire subparagraph (2), specifically added by the Legislature by amendment in 1978, was totally surplusage. To find that the Legislature intended to state that if a court imposed an indeterminate sentence, the sentence imposed shall be considered an indeterminate sentence would not comport with the plain meaning of the words employed in subparagraph (2), and would render subparagraph (2) a nullity. This Court will not infer such an intention to the Legislature which is contrary to the plain meaning of the words used.
Furthermore, GCR 1963, 785.8(3) requires that the court "state the minimum and maximum sen tence imposed by the court”, and that the "provisions of subrule 785.8 are mandatory and failure to comply shall require resentencing”. The literal language of GCR 1963, 785.8(3), established by the Supreme Court, takes precedence over inconsistent legislation in matters of practice and procedure. Roberts, supra, Buscaino v Rhodes, 385 Mich 474; 189 NW2d 202 (1971), People v Joker, 63 Mich App 421; 234 NW2d 550 (1975). GCR 1963, 785.8(3) clearly mandates indeterminate sentencing without regard to a defendant’s previous convictions or whether a defendant has been charged as an habitual offender. "At the very least, GCR 1963, 785.8(3) indicates the correct interpretation to be given the sentencing statute in issue”. Roberts, supra, 265-266.
In lieu of remanding to the sentencing court for resentencing, we correct, pursuant to GCR 1963, 820.1(7), the defendant’s sentence to five years, four months minimum term to eight years maximum term, in accord with Brinson, supra, the indeterminate sentencing act, MCL 769.11(2); MSA 28.1083(2), and GCR 1963, 785.8(3). | [
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Allen, P.J.
On August 27, 1979, the Berrien County Circuit Court entered a judgment of divorce between Dorothy Garrelts and James Elmer Garrelts. Defendant, James Garrelts, appeals as of right from the trial court’s division of property, claiming the division to be inequitable.
The parties were married on November 2, 1966. Mrs. Garrelts filed for divorce on July 18, 1977. Mr. Garrelts counterclaimed for divorce. Both parties accused the other of stealing, hiding and concealing marital assets. On August 1, 1977, the trial court entered an order prohibiting both parties from destroying, selling, concealing, or hiding any personal property of the parties. Both parties maintain the other has violated this order. On September 29, 1977, and October 21, 1977, James Garrelts submitted written interrogatories to Mrs. Garrelts. The interrogatories included questions asking for all safety deposit boxes opened or held by Mrs. Garrelts. On March 3, 1978, and March 30, 1978, Mrs. Garrelts answered these interrogatories indicating that she held only one safety deposit box located at the Inter-City Bank in Benton Harbor. Mrs. Garrelts’s deposition was taken on August 31, 1978, at which time she testified under oath that the only safety deposit box in which she held any interest was the one located in the Inter-City Bank. Mr. Garrelts’s attorney later discovered that Mrs. Garrelts had in fact opened a second safety deposit box under the fictitious name of Elaine Sims in the First National Bank located in Kalamazoo. Mr. Garrelts’s attorney then had a warrant for Mrs. Garrelts’s arrest issued for perjury. Mrs. Garrelts has been arrested and arraigned for perjury and her trial on that charge was held in abeyance until the completion of these divorce proceedings.
At the divorce trial, held on June 21 and 22, 1979, Mrs. Garrelts voluntarily took the stand and testified that she quit her job upon marrying Mr. Garrelts, raised his children, and did all housework as well as helped to run the family farm. She testified as to what marital assets existed and what personal property she brought into the marriage. She indicated that she would not object to splitting all marital assets on a 50-50 basis. She also testified on direct and re-direct examination that she did not take, secrete, or conceal any money earned during the marriage. She affirmatively testified that all such money was used for the mutual benefit of the marriage with the knowledge and consent of Mr. Garrelts. She further testified that she had no money in any safety deposit box. However, when cross-examined concerning her alleged secretly hidden money, earned during the marriage from a family operated milk route, in a safety deposit box in the First National Bank in Kalamazoo, Mrs. Garrelts refused to answer. She claimed the Fifth Amendment allowed her to remain silent rather than testify and incriminate herself in the pending perjury case against her.
Mr. Garrelts’s trial counsel argued that it was error to allow Mrs. Garrelts to testify in her own behalf as to what marital assets existed and what happened to money earned during the marriage and also claim the right to be free from cross-examination on these matters raised by her own testimony on direct and re-direct testimony. Mrs. Garrelts’s counsel maintained that Mrs. Garrelts could invoke the Fifth Amendment but conceded that an adverse presumption could be drawn against Mrs. Garrelts in connection with the questions she refused to answer. The trial court ruled that Mrs. Garrelts could invoke the Fifth Amendment and refuse to testify. The trial court’s ruling on this issue is the principal error raised by the husband on appeal.
In its oral opinion, the trial court stated:
"It has not been proven to my satisfaction that I know where to account for it [the milk route money allegedly secreted by Mrs. Garrelts in the First National Bank safety deposit box] * * *.”
"I have heard testimony from Mr. Garrelts saying he doesn’t know what happened to it. He never authorized it, and on the other side of the coin [by Mrs. Garrelts], 'we used it for our household expenses’.”
"I believe there had to be some knowledge or consent of the use of that money in cash.”
"No one has traced it, no one has found it. I cannot surmise where it went, unless it went for family use.”
Thus, the trial court accepted Mrs. Garrelts’s testimony in this regard without allowing cross-examination by opposing counsel. This was error.
It has long been held in criminal cases that a witness can stand upon his constitutional right and refuse to answer any questions which might tend to incriminate him, but a witness who voluntarily testifies in his or her own defense thereby waives such right and can be subjected to cross-examination concerning the facts in the case as affecting his or her credibility. People v Watson, 307 Mich 596; 12 NW2d 476 (1943), cert den 323 US 749; 65 S Ct 81; 89 L Ed 600 (1944), reh den 323 US 815; 65 S Ct 127; 89 L Ed 648 (1944), People v Hocquard, 64 Mich App 331; 236 NW2d 72 (1975).
This principle has been held to apply in civil cases by the United States Supreme Court in Brown v United States, 356 US 148; 78 S Ct 622; 2 L Ed 2d 589 (1958), reh den 356 US 948; 78 S Ct 776; 2 L Ed 2d 822 (1958).
" '[A defendant] has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts.’ (Citations omitted.) The reasoning of these cases applies to a witness in any proceeding who voluntarily takes the stand and offers testimony in his own behalf.”
"[WJhen a witness voluntarily testifies, the privilege against self-incrimination is amply respected without need of accepting testimony freed from the antiseptic test of the adversary process. The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry. Such a witness has the choice, after weighing the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts and his reliability as a witness, not to testify at all. He cannot reasonably claim that the Fifth Amendment gives him not only this choice but, if he elects to testify, an immunity from cross-examination on the matters he has himself put in dispute. It would make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell.” Brown, supra, 155-156. (Emphasis added.)
Mrs. Garrelts waived her privilege against self-incrimination by her testimony on her own behalf concerning what marital assets existed and what happened to the money earned during the marriage. Brown, supra.
Our decision in this regard makes it necessary to discuss but briefly Mr. Garrelts’s other claims of error concerning the division of property. The cause is reversed and remanded for a new trial as to the division of property only.
On remand, the trial court should note that:
"Striking the witness’ testimony, or relying on the trier of fact to take into account the obvious unfairness of allowing the witness to escape cross-examination, must often in practice be poor substitutes for a positive showing under searching cross-examination that the testimony is in fact false.” Brown, supra, 156, fn 5.
GCR 1963, 506.6(1) and MCL 600.1725; MSA 27A.1725 provide the preferred sanction available to the trial court, civil contempt. Other sanctions available are set forth in GCR 1963, 506.6(2)._
Additionally, since Mr. Garrelts’s attorney objects to being appointed co-receiver for the purpose of carrying out the court ordered sale of the farm and both parties are agreeable to the appointment of an independent receiver, on remand the trial court should appoint an independent receiver for the purpose of carrying out any court ordered sale of the farm.
Reversed and remanded.
Contrary to defendant’s assertion, the judgment did not find defendant guilty of contempt. Thus, we find no error on defendant’s issue one. Issues four through seven concern the validity of the trial court’s division of property. On remand, plaintiffs further testimony without benefit of privilege may or may not cause the trial court to divide the property differently than first ordered. Defendant’s issues two and three are addressed in this opinion, supra. | [
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] |
Per Curiam.
This action arose out of an automobile accident. Defendant admitted liability, contesting only the amount of damages. The central issue in the case was whether plaintiff sustained serious impairment of a body function. MCL 500.3135(1); MSA 24.13135(1). Plaintiff appeals the jury verdict of no cause of action in favor of defendant.
At trial, it was plaintiff’s testimony that immediately following the accident, on December 7, 1974, he was hospitalized and his swollen ankle was xrayed and placed in a walking cast. Plaintiff testified further that his leg felt numb at first and that he experienced pain during his convalescence.
Plaintiff stated that during the latter part of 1975 and in 1976 he felt a "dull, creeping pain” in his ankle, three or four times a month. This was at a time when his job required him to be on his feet 90 percent of the time. It was in 1976, also, that he began to test his ankle in such sports as tennis and bowling and, experiencing pain, was forced to favor his ankle. Finally, it was plaintiff’s testimony that he continued to experience pain a couple of times a month right up until time of trial.
The only other witness to testify at trial was the plaintiff’s family doctor. The doctor testified that he first saw plaintiff sometime on or about December 19, 1974, approximately 12 days after the accident. At that time, plaintiff was still in his cast and the doctor diagnosed his injury as a chip fracture of the heel bone. The doctor also testified that plaintiff had some traumatic arthritis which he defined as a joint impairment due to an injury to the surface of the bones where they meet at the joint. The doctor stated that he believed this discomfort would continue, perhaps for life. Finally, it was the doctor’s view that the torn ligament, a soft tissue injury, was the more important injury.
On cross-examination, plaintiff’s doctor acknowledged that when plaintiff was last examined on March 28, 1975, his examination revealed no swelling of the joint or complaint of pain, nor did he note any inflammation of the ankle or impairment of motion. No radiological evidence of traumatic arthritis was noted because no x-rays had been taken.
The principal errors argued by plaintiff relate to the trial court’s instructions to the jury. Plaintiff alleges first that the court erred in instructing that "serious impairment means impairment of more than ordinary severity”. Smith v Sutherland, 93 Mich App 24; 285 NW2d 784 (1979). See also Stevens v Hogue, 85 Mich App 185, 189; 279 NW2d 735 (1978). We agree. While Smith, supra, had not yet been decided (released October 15, 1979) at the time of trial here (April 9, 1979), no new rule of law was formulated, no previous decision of the court overruled. People v Fields, 391 Mich 206, 217-221; 216 NW2d 51 (1974). The Smith Court merely pointed to the clear language of the statute in holding that this particular instruction did not comport with the statutory standard. There is, then, no basis for the defendant’s argument concerning retroactive application of the Smith Court’s decision.
It was also error for the court to instruct the jury regarding death and permanent serious disfigurement since no such issue was raised by the facts in this case. Submission of irrelevant and immaterial propositions to the jury is confusing and misleading and, therefore, erroneous. Irwin v Carlton, 369 Mich 92; 119 NW2d 617 (1963).
We conclude that these instructional errors require reversal because together they served to increase the plaintiffs threshold burden and were sufficiently misleading to mandate that the plaintiff receive a new trial. It cannot be said with any certainty that but for these instructions the plaintiff might not have met his threshold burden with the jury regarding the gravamen of his complaint.
For. purposes of retrial, we note that a refusal to instruct that serious impairment of body function need not be permanent is error. See Smith, supra, 27, fn 1, Cassidy v McGovern, 86 Mich App 321, 327; 272 NW2d 644 (1978) (Bashara, J, concurring/ dissenting opinion).
Plaintiffs remaining issues are without merit.
Reversed and remanded for proceedings consistent with this opinion. Costs to appellant. | [
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On Remand
E. A. Quinnell, J.
This matter is on remand to this Court following the Supreme Court’s decision in Tulkku v Mackworth Rees Division of Avis Industries, Inc, 406 Mich 615, 618-619; 281 NW2d 291 (1979). The facts, as stated by the Supreme Court, are as follows:
"On October 4, 1967, plaintiff, Karl Tulkku, suffered an injury to his left hand in a press accident a t the Chrysler Sterling Stamping Plant. The press which plaintiff was operating at the time of the accident was one that required two operators for the completion of a cycle. In order to activate the press, each operator was required to depress two palm buttons and to hold them down until the press had completed its downward cycle. The palm buttons had been installed as safety devices to prevent an operator’s hand from being in the die area while the press was in operation.
"At the time of the accident, plaintiff’s co-worker had depressed both of his palm buttons and plaintiff had depressed his right-hand palm button while attempting to blank a piece of metal caught in the rear of the press with his left hand. With only three buttons depressed, the press inexplicably cycled causing severe injury to plaintiff’s hand.
"Upon a subsequent investigation, it was discovered that the plastic case on the snap-action microswitch in plaintiff’s left-hand palm button was broken in the area where the cover was screwed to the top of the switch. The broken plastic case caused the switch to fail with the result that the press completed its cycle without the palm button having been pushed.
"Plaintiff brought suit alleging both negligence and breach of warranty against defendant Mackworth Rees, the manufacturer of the palm button assembly, and Illinois Tool Works, the manufacturer of the switch.”
At trial, plaintiff had requested an instruction to the effect that contributory negligence would not be a defense if the defendants negligently failed to provide a proper, adequate, and suitable safety device and that such failure was a proximate cause of the plaintiff’s injuries. The trial court declined to give the requested instruction but, instead, gave the standard jury instruction concerning contributory negligence, i.e., that contributory negligence would bar plaintiff’s negligence claim. As to the warranty claim, the court gave an "abuse of product” instruction that was agreed upon by all parties. The jury returned a general verdict in favor of the defendants.
The Court of Appeals had affirmed, 76 Mich App 472; 257 NW2d 128 (1977).
On further appeal, the Supreme Court reviewed available authorities and policy considerations and held:
"We, therefore, hold that contributory negligence is no bar to recovery where evidence has been presented of defendant’s causal negligence in the design or manufacture of a safety device.
"Our holding today necessarily requires remand to the trial court for a new trial. We note that during the pendency of this appeal, this Court decided Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), and the Michigan Legislature enacted legislation which affects the manner in which products liability actions are to be treated by the courts of this state. MCL 600.2945; MSA 27A.2945. However, we must presently decline to consider the effect of Placek and that legislation, if any, on the holding we have reached today as this complex issue was neither argued nor briefed before us.” 406 Mich 615, 623 (1979).
Promptly thereafter, plaintiff and defendants moved for rehearing. Both parties sought a determination from the Supreme Court as to whether the comparative negligence doctrine found in either the products liabiltiy statute or Placet would be applicable on retrial. In addition, defendants in their motion for rehearing sought a determination from the Supreme Court that the retrial would involve only the negligence issue of plaintiff’s case <<* * * that plaintiff has already prosecuted his warranty theory under what this Honorable Court has determined to be the correct law”.
The Supreme Court entered the following special order:
"Motions for rehearing considered and, in lieu of granting rehearing, this cause is remanded to the Court of Appeals for consideration of the issues of the scope of the retrial in this case and the applicability of Placek v City of Sterling Heights, 405 Mich 638 (1979), and MCL 600.2945; MSA 27A.2945 upon such retrial.” 407 Mich 1148 (1979).
I. Scope of Retrial.
At the original trial, as noted, the court submitted to the jury the issue of defendants’ negligence and also gave the standard jury instruction as to contributory negligence. The trial court also submitted the breach of warranty theory to the jury but did not specifically inform the jury that contributory negligence was not a defense to the breach of warranty claim, the nearest approximation of such an instruction being the following:
"In understanding, of course, the nature of the liability of the manufacturer based on a breach of an implied warranty, negligence and fault have no place in it and are not required to be proved.”
In our view, having the benefit of cases decided since the trial of this case in October, 1975, the jury was not properly instructed on the warranty count.
Many cases have noted the potential for jury confusion in a combined negligence/warranty action as to the effect of plaintiff’s conduct; for instance, see Vincent v Allen Bradley Co, 95 Mich App 426; 291 NW2d 66 (1980). Upon request, plaintiff would have been entitled to an instruction specifically informing the jury that any negligence on the part of the plaintiff could not be considered as a defense to the warranty action. Timmerman v Universal Corrugated Box Machinery Corp, 93 Mich App 680; 287 NW2d 316 (1979).
Defendants argue that plaintiff did not preserve the issue for appeal either in this Court or in the Supreme Court, and therefore the jury verdict as to the warranty count is final and may not be retried. Plaintiff has made no response to the preservation issue, arguing only that because the contributory negligence issue and the abuse of product issue are so closely intertwined fundamental fairness requires a new trial as to both counts.
Counsel for the parties have cited few authorities in support of their respective positions, probably for the eminently sensible reason that there are no cases directly on point. In support of their procedural position, defendants cite Vorrath v Garrelts, 49 Mich App 142; 211 NW2d 536 (1973). There the trial court granted a judgment in favor of plaintiff for a debt and also imposed a mechanics lien. On appeal to the Court of Appeals, the mechanics lien was held void. Thereafter, plaintiff undertook proceedings supplemental to judgment in the trial court to collect the debt, and, on further appeal, the Court of Appeals determined that the initial reversal of the mechanics lien did not disturb the original judgment as to the debt. Other cases hold, at least as a general rule, that, upon each new trial, a case must be tried just as if it never had been tried before. Bathke v Traverse City, 308 Mich 1; 13 NW2d 184 (1944), and cases cited therein. In Snowden v Detroit & M R Co, 194 Mich 87; 160 NW 414 (1916), the Supreme Court affirmed a trial court’s grant of a new trial on a common law negligence count which the trial court originally had refused to submit to the jury, after a Supreme Court reversal of a judgment for plaintiff on a statutory count which the trial court had submitted to the jury, suggesting some discretion as to the scope of the retrial in a case involving multiple counts even though plaintiff had not filed a cross-appeal.
In the absence of any persuasive authority in favor of either plaintiff or defendants, we conclude that the new trial should include both the negligence and warranty counts. In the determination of the liability of a defendant, the distinctions between negligence actions and warranty actions are becoming increasingly blurred. Owens v Allis-Chalmers Corp, 83 Mich App 74; 268 NW2d 291 (1978), Elsasser v American Motors Corp, 81 Mich App 379; 265 NW2d 339 (1978), Smith v ER Squibb & Sons, Inc, 69 Mich App 375; 245 NW2d 52 (1976), lv den 399 Mich 804 (1977). As noted in Vincent, supra, the characterization and effect of a plaintiff’s conduct with regard to a product can also lead to confusion. It would be unfair to the parties to permit the general verdict to stand as to the implied warranty count, reached after instructions which are not perceived to be incomplete, when a new trial must be held on the negligence count.
II. Applicability o/Placek.
It is clear that the comparative negligence rule announced in Placek is applicable to all appropriate cases in which trial commences after the decision date of Placek, including those in which a retrial is to occur because of remand on any other issue. Placek, supra, 667. Saving the "safety devices” issue for subsequent discussion, it is clear that the comparative negligence principles of Placek would apply to the negligence count on retrial of this case.
III. Applicability of Statute.
The accident out of which this litigation arose occurred on October 4, 1967. The statute (MCL 600.2945; MSA 27A.2945) was effective December 11, 1978. The general rule is that statutes have prospective effect only unless a retrospective legislative intent of the Legislature clearly appears from the language or context of the statute. Various exceptions to the rule exist. Statutes dealing with the admissibility of evidence are given retrospective effect. Sherberneau v Metropolitan Life Ins Co, 44 Mich App 339; 205 NW2d 213 (1973). Remedial legislation is also given retrospective effect. Rookledge v Garwood, 340 Mich 444; 65 NW2d 785 (1954), Lahti v Fosterling, 357 Mich 578; 99 NW2d 490 (1959), Freij v St Peter’s Evangelical Lutheran Church, 72 Mich App 456; 250 NW2d 78 (1976), lv den 399 Mich 862 (1977). The Freij Court, quoting from Rookledge, supra, noted that a statute will be regarded as remedial in nature if it is designed to correct an existing law, redress an existing grievance, or introduce regulations conducive to the public good. The Rookledge Court also quoted approvingly from 50 Am Jur, Statutes, § 15, pp 33, 34 to the effect that legislation is regarded as remedial which abridges superfluities of former laws, remedying defects therein or mischiefs thereof, implying an intention to reform or extend existing rights, and having for its purpose the promotion of justice and the advancement of public welfare and of important and beneficial public objects, such as the protection of the health, morals, and safety of society or of the public generally. The citation goes on to add that another common use of the term "remedial statute” is to distinguish it from a statute conferring a substantive right and to apply it to acts relating to the remedy, to rules of practice or courses of procedure, or to the means employed to enforce a right or redress an injury. The term "remedial” applies to a statute giving a party a remedy where he had none, or a different one, before.
With these standards in mind, we comfortably conclude that the Legislature intended that this statute have retroactive as well as prospective effect. In §§ 2946, 2947, and 2948 the Legislature purports to describe what is admissible evidence in a product liability action as defined in § 2945, thus addressing itself to the exception noted in Sherberneau, supra. There, further, can be no doubt that the Legislature thought it was redressing existing grievances on the part of defendants by providing certain evidentiary defenses to product liability actions and redressing existing grievances as to plaintiffs by providing that a plaintiff’s negligence should not totally bar his recovery but merely operate to diminish his recovery. We conclude that the Legislature intended the statute to apply to all actions pending, accrued, or future.
IV, "Safety device” liability._
Having found that the comparative negligence statute applies retroactively and that Placek applies generally to retrial of the negligence count, we reach the critical issue of this remand proceeding, namely, whether the negligence of a plaintiff may be considered to reduce a plaintiffs recovery when the liability of the defendants is predicated upon their failure to provide adequate safety equipment.
A. Application of Placek.
Plaintiff argues that the policy considerations underpinning Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974), and the Supreme Court decision in Tulkku, supra, apply equally to a diminution of plaintiffs recovery and to a bar of plaintiffs recovery. Defendant argues that the harsh effects of contributory negligence have been abolished by Placek which was designed to promote a more equitable allocation of loss among all of the parties legally responsible in proportion to their fault and that, therefore, in any case in which Placek is applicable, the safety equipment analysis of Funk and Tulkku is not appropriate. Defendant’s arguments miss the point of Funk and Tulkku. Those two cases are concerned with a problem distinct from the equitable allocation of a loss.
In its determination that contributory negligence does not bar recovery where the trier of fact may reasonably find that the failure to provide necessary safety equipment was the cause in fact of the injury, the Funk Court noted, supra, 104:
”The policy behind the law of torts is more than compensation of victims. It seeks also to encourage implementation of reasonable safeguards against risks of injury.”
Similarly the Tulkku Court said, supra, 623:
"If we are to continue to foster the protection of the worker and to encourage manufacturers to take all reasonable precautions in designing and manufacturing safety devices, we cannot allow the discredited doctrine of contributory negligence to undermine these goals.”
The worker has an incentive — the avoidance of injury to himself — to work as safely as permitted by the demands of his employment, the nature of the equipment furnished to him, and the frailties of mankind. To impose an additional economic sanction on a negligent plaintiff ignores the definition of negligence. Without in the least suggesting that manufacturers are totally devoid of humanitarian considerations for workers’ safety, we do suggest that workers’ safety (and therefore workers’ productivity through uninterrupted production) will be fostered and encouraged by our holding that a plaintiffs recovery may not be diminished by his own negligence if the liability of the defendants arises from their failure to provide adequate safety devices. Other panels of this Court have reached the same result. Timmerman, supra, Stambaugh v Chrysler Corp, 96 Mich App 166; 292 NW2d 510 (1980).
Before we are inundated with a flood of anguished howls from safety device manufacturers and their insurance carriers, we hasten to add that such potential defendants are not the insurers of the safety of working men. Funk encourages "implementation of reasonable safeguards against risks of injury”. Tulkku encourages manufacturers "to take all reasonable precautions in designing and manufacturing safety devices”. Nothing more, but nothing less, is required.
B. Application of the statute.
The statute broadly defines "product liability action” as
"an action based on any legal or equitable theory of liability brought for or on account of death or injury to person or property caused by or resulting from the manufacture, construction, design, formula, development of standards, preparation, processing, assembly, inspection, testing, listing, certifying, warning, instructing, marketing, advertising, packaging, or labeling of a product or a component of a product.” MCL 600.2945; MSA 27A.2945.
Subsequent sections provide that certain types of evidence dealing with manufacture, alteration, and the issuance of written warnings shall be admissible in such actions.
The comparative negligence portion of the statute reads as follows:
"Sec. 2949 (1) In all products liability actions brought to recover damages resulting from death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or the plaintiff’s legal representatives, but damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.” MCL 600.2949; MSA 27A.2949.
Obviously, the applicability of this statute to safety device products liability cases has not previously been determined by the Michigan Supreme Court. Timmerman, supra, held (with little discussion) that the statute did not apply in such cases. As to the applicability of comparative negligence statutes to strict liability cases generally, the jurisdictions of the country are apparently split, some applying such statutes despite language which arguably makes them inapplicable, Murray v Fairbanks Morse, 610 F2d 149 (CA 3, 1979), while others do not apply statutes which purport to cover only negligence actions to actions based on strict liability in tort, Kinard v The Coats Co, Inc, 37 Colo App 555; 553 P2d 835 (1976).
New Jersey is one jurisdiction which applies its comparative negligence statute to strict liability cases generally but not to cases where liability is predicated on the existence of an inadequate safety device. Suter v San Angelo Foundry & Machine Co, 81 NJ 150; 406 A2d 140 (1979). In 1972, New Jersey had held that contributory negligence would not be available as a defense under either a negligence or a strict liability theory if the liability of the defendant resulted from the breach of a duty to install safety devices, reasoning that "It would be anomalous to hold that defendant has a duty to install safety devices but a breach of that duty results in no liability for the very injury the duty was meant to protect against”. Bexiga v Havir Manufacturing Corp, 60 NJ 402, 412; 290 A2d 281 (1972), relied on by the Michigan Supreme Court in Tulkku. In 1973, the New Jersey Legislature adopted a comparative negligence statute, providing in pertinent part:
"Contributory negligence shall not bar recovery in an action by any person to recover damages for negligence resulting in death or injury to person or property * * * but any damages sustained shall be diminished by the percentage sustained of negligence attributable to the person recovering.” NJSA 2A:15-5.1.
In Suter, the New Jersey court was called upon to determine whether the act applied to a case in which plaintiff asserted liability against the defendant on the basis of strict liability arising out of the absence of a safety device. The trial court submitted the case to the jury under the statute. The jury found the plaintiff and defendant each 50 percent responsible for the ensuing personal injuries. The New Jersey Supreme Court concluded:
"We hold that the Comparative Negligence Act is applicable in strict liability to those situations in which contributory negligence would have been a defense. However, we are not expanding the concept of contributory negligence, and comparative negligence is immaterial when no contributory negligence exists either factually or as a matter of law.” Suter, 406 A2d 140, 153. (Emphasis added.)
The situation in Michigan is identical to that in New Jersey. Funk, as refined by Tulkku, had determined that contributory negligence would not exist as a defense as a matter of law if defendant’s liability arose out of an inadequate safety device; the Legislature then passed our comparative negligence statute, MCL 600.2949; MSA 27A.2949, providing in partinent part: "but damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to plaintiff.” (Emphasis added.) The Legislature did not either expressly include or expressly exclude safety device cases from the operation of the act, despite the previous existence of Funk. Under Funk and Tulkku, no negligence can be attributed to the plaintiff in a safety device case. Therefore, the comparative negligence statute has no applicability.
Remanded for new trial in conformity with this opinion.
We deliberately refrain from citing Jorae v Clinton Crop Service, 465 F Supp 952 (ED Mich, 1979), as being in support of our position, even though the result which Judge Joiner reached in that case is identical with our own on the point here discussed. Judge Joiner also had other problem issues which are not present in our case, and we find it unnecessary to either approve or disapprove his resolution of those issues.
Lest it be said that all of the preceding discussion is mere dicta, we note that we would not reach this issue if we had determined that the date of the accident precluded the application of the statute or of Placek.
Different principles apply to a grossly negligent plaintiff, Funk, supra, 113, fn 18.
Statutes and cases from other jurisdictions must be read with the understanding that liability normally is predicated on what is called strict liability in tort, 2 Restatement Torts 2, § 402A, p 347, with the effect of plaintiff’s contributory negligence being governed by 3 Restatement Torts 2d, § 524, p 50. As noted in Dooms v Stewart Bolling & Co, 68 Mich App 5; 241 NW2d 738 (1976), lv den 397 Mich 862 (1976), the Michigan doctrine of implied warranty of fitness is worded differently, but is virtually indistinguishable in concept and practical effect. Thus the scope of comparative negligence statutes from other jurisdictions may be facially narrower, but equally as broad as Michigan’s in application. | [
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Following a jury trial, defendant was found guilty of carrying a concealed weapon, MCL 750.227; MSA 28.424, and acquitted of a charge of aiding and abetting the crime of larceny in a building, MCL 750.360; MSA 28.592. Defendant was sentenced to four to seven years imprisonment and now appeals as of right.
Barbara Gumbert, manager of the Bottom Half Clothing Store in the Westwood Mall in Jackson, received a shipment of 35 Huckapoo shirts on February 14, 1979. After she unpacked and ticketed them, they were put on special hangers and placed on a rack near the front entrance of the store. No other mall stores carried that type of shirt. At approximately 8:30 p.m., defendant and a companion, later identified as Marketta Landrum, entered the store and began looking at merchandise, including the shirts. They both tried on jackets, and defendant asked Ms. Gumbert to put one on hold. Ms. Gumbert went to the back room and, when she returned, defendant filled out a form in order to purchase the jacket through the Community Action Program. While she was away from the merchandise area, there was no other salesperson on the floor assisting her, and defendant and Landrum were the only customers in the store. Ms. Gumbert had given the two women store bags, upon their request, and, after a brief conversation, they left. When she began counting the merchandise, she noticed six Huckapoo shirts and hangers missing.
After the mall security was alerted, Ms. Gumbert and security officer Jim Schmall went to Kinney’s shoe store and waited for the two women to come out. They followed them to the mall entrance, and another security officer, John Rogus, stopped them at entrance. Ms. Gumbert asked Marketta Landrum whether she could look inside the Bottom Half bag she was carrying, and, when she opened it, she saw the shirts. Landrum denied taking them, and defendant "didn’t see why she had to be with her at the time”.
After the police arrived, they escorted defendant, Landrum, and Ms. Gumbert into a room inside Alladin’s Castle. One of the officers, Jackson County Deputy Norman Purucker, found a razor knife and a jackknife in defendant’s purse. The jackknife was open and was approximately eight to ten inches long. Only two of the six shirts found in the bag still had tags. Ms. Gumbert admitted, during cross-examination, that she did not see the jackknife until it was no longer in defendant’s purse.
Mark Williston, assistant manager at Kinney’s shoe store, testified that, after he finished waiting on the defendant, he checked one of the handbags at which she had been looking because it felt "heavier than usual”. When he opened it, he found plastic hangers with the logo "Bottom Half’ on the top of the hanger. Williston left the store and, after he spoke with the salesperson at the Bottom Half, went to Alladin’s Castle. As he turned the bag over to deputy Purucker, he saw him holding a jackknife. He later discovered the missing shirt tags in his store.
James Schmall observed the Jackson County deputy search the two women and take two knives from one of their purses. He did not remember, however, from which purse they were taken.
Deputy Purucker testified that, after he arrived at the mall, he asked defendant and Landrum their names and addresses. He then asked defendant for permission to search a purse she was holding, and she consented after the officer had advised her that she could refuse his request. He found a large, pearl-handled jackknife and a Stanley utility knife. When he showed her the knives, she said, "I carry them when I’m walking down Frances Street, never know when I might need them”. He did not give her a Miranda warning prior to her making the statement, and he denied that he asked her any questions about the alleged theft. He also denied that he had any reason to suspect that defendant was carrying any concealed weapon when he searched her purse. Finally, he characterized her statements as spontaneous since she made them as soon as he held up the knives.
Jackson County Deputy Sheriff William Tedder had accompanied deputy Purucker to the mall. He corroborated Purucker’s testimony regarding the discovery of the knives in defendant’s purse and her statements regarding why she carried them.
Marketta Landrum denied that she and defendant had any prior conversation about stealing anything at the mall and testified that she did not tell defendant that she took the shirts.
The trial court had denied defendant’s motion to dismiss the aiding and abetting count made at the close of the prosecution’s case since there was "some evidence” from which a reasonable person could conclude that defendant acted as a decoy in order to assist her companion.
The trial court had also ruled that, based upon the consensual nature of the search, the knives were admissible into evidence. In addition, the court ruled that defendant’s statements were voluntary since they were not made in response to any police interrogation and, therefore, Miranda was inapplicable.
Defendant first argues that the trial court erred in denying defendant’s motion to dismiss the charge of carrying a concealed weapon (CCW). Defendant claims that the information was deficient in failing to specify that the knives found in defendant’s purse were carried for either an offensive or defensive purpose. Where statutory language is used in an information in charging an offense, it is sufficient if it adequately informs a defendant of "the nature and character” of the charged offense. People v Lightstone, 330 Mich 672; 48 NW2d 146 (1951), see also, People v Adams, 389 Mich 222; 205 NW2d 415 (1973). The language used in the information adequately informed defendant of the nature and character of the charged offense.
We further find no violation of defendant’s rights to equal protection and due process of law arising from the prosecution’s decision to charge defendant with larceny in a building, a felony, as opposed to simple larceny, a misdemeanor. The decision to charge defendant with the former was a proper exercise of prosecutorial discretion and not constitutionally infirm. People v Evans, 94 Mich App 4; 287 NW2d 608 (1979), People v Birmingham, 13 Mich App 402; 164 NW2d 561 (1968).
As defendant’s sentence was within permissible statutory limits, MCL 750.227; MSA 28.424 and MCL 769.10; MSA 28.1082, and since the trial court considered no improper criteria in sentencing defendant, we decline to disturb the trial court’s decision with respect to the sentence meted out, and we likewise reject defendant’s argument that her sentence constituted cruel and unusual punishment as being grossly disproportionate to the offense (CCW and second felony offender). People v Lorentzen, 387 Mich 167; 194 NW2d 827 (1972), People v Cox, 53 Mich App 314; 218 NW2d 843 (1974), lv den 392 Mich 803 (1974).
Next, we address defendant’s contention that the trial court erred in denying her motion for a directed verdict of acquittal on the charge of aiding and abetting the crime of larceny in a building. Defendant, as noted hereinbefore, ultimately was acquitted of that charge by the jury. Although not expressly argued by defendant in her brief on appeal, presumably the prejudice which she contends followed from the denial of the motion for a directed verdict was the consideration by the jury of a charge unwarranted by the proofs which substantially decreased defendant’s chances of acquittal on any valid charge because of the possibility of a compromise verdict. People v Vail, 393 Mich 460, 464; 227 NW2d 535 (1975).
It is proper to deny a motion for a directed verdict of acquittal if, considering the evidence presented by the prosecution up to the time the motion is made in a light most favorable to the prosecution, a rational trier of fact could have found that the essential elements of the crime were established beyond a reasonable doubt. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), People v Walker, 93 Mich App 189, 196; 285 NW2d 812 (1979). Our review of the prosecution’s proofs convinces us that the trial court’s ruling was correct. We find the case at bar on all fours with our Supreme Court’s recent decision in People v Thomas, 407 Mich 936; 285 NW2d 658 (1979), although we note that the precise question raised by the defendant in Thomas was the suffi ciency of the evidence in support of a verdict of guilty following a bench trial, whereas here, we review the lower court’s denial of a motion for a directed verdict of acquittal.
The evidence offered during trial established that defendant and Marketta Landrum entered the Bottom Half Clothing Store and that, while Landrum was looking around other parts of the store, defendant talked to a clerk concerning a purchase and had the clerk fill out a form from the Community Action Program for the purchase of an item which required the clerk to go into the back room of the store and obtain the store’s stamp. Sometime during this exchange, Landrum was able to take six shirts, hangers and all, and place them in her purse. Prior to leaving, both defendant and Landrum asked the clerk for empty Bottom Half bags which the clerk supplied to them. Defendant and Landrum then went to the Kinney shoe store where, while Landrum was looking at certain handbags in the store, defendant had a clerk fit her for a pair of shoes and again fill out a purchase requisition from the Community Action Program. While the clerk was filling out this form, defendant went over to talk with Landrum by the handbags. Then, both left the store together. Upon leaving the shoe store, the clerk in the shoe store saw a handbag, which had been on display in that store, lying on the floor. It contained several hangers from the Bottom Half store. The clerk from the Bottom Half store, who had discovered the theft and become suspicious of defendant and Landrum, had followed them to the shoe store. There, she observed defendant and Landrum leaving the shoe store with Landrum now carrying a Bottom Half bag which, it developed, contained the six shirts, ab sent the hangers, that had just been taken from the Bottom Half store. Four of the six shirts no longer had tags when found in the Bottom Half bag which Landrum was carrying. Moreover, defendant was in possession of a razor knife peculiarly suited for removing such price tags, as well as a jackknife also capable of performing such a task.
Reasonable inferences which could be drawn from this evidence are that defendant distracted the clerk at the Bottom Half in order to facilitate the theft of the shirts by Landrum and then, later, similarly distracted the clerk at the Kinney shoe store in order to assist Landrum in concealing the stolen shirts and in getting rid of the hangers. So, too, circumstances point to defendant’s role in removing the tags from the shirts or, at least, aiding that action. Thus, we conclude, much as did the Court in Thomas, that a rational trier of fact could find that all the elements of aiding and abetting the crime of larceny in a building were established beyond a reasonable doubt. No error or prejudice to defendant resulted from the trial court’s denial of defendant’s motion for directed verdict.
Defendant further predicates reversible error upon the admission into evidence of the two knives found in her purse by deputy Purucker, arguing that they were the fruits of an illegal search and subject to the operation of the exclusionary rule. The prosecution argues that the consent obtained from defendant prior to the search of her purse vitiates any claim of illegality stemming from the search.
We agree with the prosecution, for we find that, under the totality of the circumstances extant at the time the consent was obtained, such consent was given voluntarily, and the search was, therefore, valid. People v Turner, 62 Mich App 467, 470-473; 233 NW2d 617 (1975), lv den 395 Mich 799 (1975), People v Ricky Smith, 85 Mich App 32, 37, 46; 270 NW2d 697 (1978), see also, People v Reed, 393 Mich 342, 360-366; 224 NW2d 867 (1975), cert den 422 US 1044, 1048; 95 S Ct 2660, 2665; 45 L Ed 2d 696, 701 (1975). Accordingly, the knives were properly allowed into evidence.
As a final argument, defendant contends that her admission that she carried the knives found in her purse for purposes of self-protection was obtained by means of an impermissible "interrogation” conducted in violation of Miranda and its progeny. It was admitted by the arresting sheriffs deputies that defendant was not informed of her Miranda rights prior to her making the statement in question. The prosecution, however, contends that no "interrogation” took place and that defendant merely uttered a spontaneous, in-custody declaration which does not fall within the purview of the Miranda protections. The question for decision is whether the police actions in this case constituted "interrogation” under Miranda. As noted hereinbefore, the police activity claimed to be tantamount to interrogation occurred when deputy Purucker removed the knives from defendant’s purse and held them up to her.
In Rhode Island v Innis, 446 US 291; 100 S Ct 1682; 64 L Ed 2d 297 (1980), the United States Supreme Court addressed the question of what constitutes "interrogation” under Miranda. After noting that not all statements obtained by police after a person has been taken into custody are considered products of "interrogation” and that volunteered statements of any kind are not barred by the Fifth or Fourteenth Amendments, the Court indicated that "interrogation”, as contemplated in Miranda, must reflect a measure of compulsion above and beyond that inherent in custody itself. The Court continued:
"We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term 'interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” 100 S Ct 1689-1690. (Footnotes omitted.) (Emphasis in the original.)
We, therefore, must measure the police actions in the case at bar against the above standard in order to determine whether it was the "functional equivalent” of interrogation.
In Innis, the police had arrested the suspect in an area near a school for handicapped children. Enroute to the police station, two patrolmen conversed regarding their fears that a missing shotgun (the weapon used by Innis to commit two robberies, as well as a murder) might be found by a handicapped child who would possibly injure or kill himself or herself. Overhearing this conversation, Innis told the police he would take them to the shotgun. The Supreme Court concluded that the officers’ conversation did not amount to interrogation, as it was not reasonably likely to elicit an incriminating response from Innis.
Turning to the facts of the instant case, we likewise conclude that the deputy’s isolated act of holding up the knives in front of defendant was not a practice which the officer should have known would be reasonably likely to elicit an incriminating response. Defendant’s response was an unforeseeable result of the brief, unembellished gesture of deputy Purucker. This is particularly true since the response related to an offense other than that which the officer was investigating. Thus, his act was not the functional equivalent of interrogation, and defendant’s spontaneous declaration was admissible into evidence.
To summarize, we find no error necessitating remand or reversal in this case, and, therefore, we affirm defendant’s conviction and sentence.
Affirmed.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).
In Michigan, Miranda warnings are required to be given once an investigation has focused on a particular suspect, even if the suspect is not in custody. Reed, supra, People v Ridley, 396 Mich 603; 242 NW2d 402 (1976), People v Brannan, 406 Mich 104, 118; 276 NW2d 14 (1979).
See People v Terry, 86 Mich App 64, 67-68; 272 NW2d 198 (1978), People v Nard, 78 Mich App 365, 377-378; 260 NW2d 98 (1977).
There is nothing in the record to indicate that deputy Purucker was aware of any unusual susceptibility of the defendant herein to any particular form of persuasion, whether by word or deed, or that the officer perceived defendant to be unusually disoriented or upset at the time he showed her the knives. Both considerations are factors which Innis, supra, intimates may affect the determination as to whether a police practice constitutes "interrogation” under Miranda. | [
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J. T. Kallman, J.
Defendant was convicted of arson of real property, MCL 750.73; MSA 28.268, in a nonjury trial in Kent County on March 14, 1978. On March 16, 1978, two days later, the prosecutor filed a supplemental information charging defendant as a second felony offender, MCL 769.10, 769.13; MSA 28.1082, 28.1085. Defendant’s prior conviction was also in Kent County before the same judge on March 17, 1977. Defendant was convicted of the habitual offender charge and appeals that conviction.
We find that no reversible error occurred when the prosecutor filed an information charging defendant as an habitual offender after defendant’s conviction on a second felony but before the Supreme Court issued its opinion in People v Fountain, 407 Mich 96; 282 NW2d 168 (1979) (Fountain).
In Fountain, the Supreme Court vacated sentence enhancement under the habitual criminal act where two defendants were not charged as habitual criminals until after they were convicted of their current principal offenses. The Court reasoned:
"A prosecutor who knows a person has a prior felony record must promptly proceed, if at all, against the person as an habitual offender. People v Hatt, 384 Mich 302; 181 NW2d 912 (1970); People v Stratton, 13 Mich App 350; 164 NW2d 555 (1968). The prosecutor is not foreclosed from proceeding against a person as an habitual offender after conviction on the current offense provided he is unaware of a prior felony record until after the conviction. MCL 769.13; MSA 28.1085. The only recognized exception to this rule is when the delay is due to the need to verify out-of-state felony convictions based on the 'rap sheet’. People v Hendrick, 398 Mich 410; 247 NW2d 840 (1976).
"Here the prosecutors must be presumed to have known of the defendants’ prior felony records because their respective offices prosecuted the prior felonies. The habitual offender charges should have been filed with the information which charged the last felony to provide fair notice to the accused and avoid an appearance of prosecutorial impropriety.” Fountain, supra, 98-99.
The Supreme Court did not indicate whether its decision was meant to apply completely retroactively, purely prospectively, or in some intermediate fashion. In three subsequent orders, the Court declined to rule on Fountain’s application. In People v Morris, 407 Mich 885 (1979), the Court vacated a sentence enhancement provision and reinstated defendant’s initial sentence, citing Fountain. In People v Devine, 407 Mich 904; 284 NW2d 342 (1979), the Court vacated a separate sentence imposed after defendant’s conviction as an habitual offender, but reversed this Court’s order to remand for resentencing, stating, "we intimate no opinion on the retroactivity of [Fountain].” Lastly, in People v Ronald Brown, 407 Mich 913 (1979), the Supreme Court remanded to this Court "for briefing and argument of the issues of (1) whether the timing of the prosecutor’s filing of the supplemental information was violative of the rule announced in [Fountain]; and (2) if so, whether Fountain should be given retroactive effect”.
Judge Burns would affirm on the authority of Devine. In Devine, the Supreme Court expressly disavowed an intent to intimate an opinion on Fountain’s retroactivity; therefore, we are unable to accept Devine as authority for applying Fountain in this case where all the relevant events occurred before Fountain was decided. Moreover, the later remand in Ronald Brown indicates the Court wished to open the retroactivity question to full discussion among panels of this Court.
This Court, left to decide the retroactivity question, has issued a variety of conflicting opinions. Contrast People v Holmes, 98 Mich App 369; 295 NW2d 887 (1980), giving only prospective effect to the "new rule of law”, and People v Reese, 97 Mich App 785; 296 NW2d 172 (1980), applying Fountain’s "new rule of law” to all future cases and cases pending on appeal at the date of the Fountain decision.
This Court recently discussed two rules stemming from Fountain. People v Mohead, 98 Mich App 612; 295 NW2d 910 (1980). Rule 1 stated that it is impermissible for a prosecutor with knowledge of a defendant’s prior felony record before trial to file a supplemental information charging the defendant as an habitual offender after conviction on the current felony charge. No determination as to retroactivity was made. Rule 2 stated that habitual charges should be filed with the information charging the current or later felony. For the reasons given in Mohead, we agree that Rule 2 — the "simultaneous filing requirement”— created a new rule of law which should be applied prospectively only to cases in which informations charging the current felonies are filed after Foun tain’s release date, August 28, 1979. The case at bar does not fall within that class.
In considering Mohead’s first rule, it is helpful to analyze it in terms of two stages. Step one states the previously recognized rule that a prosecutor who knows of an accused’s prior felony record must proceed "promptly” against the person as an habitual offender. The Fountain Court cited People v Hatt, 384 Mich 302; 181 NW2d 912 (1970), and People v Stratton, 13 Mich App 350; 164 NW2d 555 (1968), as authority for this proposition. The Mohead Court recognized, however, that Stratton and Hatt both discuss a related but distinct problem: the prejudice that can be engendered by the use of a single trial to determine guilt on the principal offense and the habitual charge. Other cases do support Fountain’s first proposition. In People v Marshall, 41 Mich App 66, 73; 199 NW2d 521 (1972), for example, this Court noted that the prosecution "should have acted promptly” in bringing habitual offender charges. The Marshall Court continued, holding that where no good reason existed for a nearly four-month delay between conviction and filing and that delay substantially prejudiced Marshall’s right to appeal, defendant Marshall, had been denied due process. No specific time was set for filing in Marshall — the Court merely required promptness, with no unexplained or prejudicial delay. A similar approach was adopted by the Supreme Court in People v Hendrick, 398 Mich 410; 247 NW2d 840 (1976). The Court quoted Marshall:
"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 informa tion clearly denies defendant his right to due process of law.” Hendrick, supra, 420-421.
The Court found the prosecutor’s need to verify an out-of-state rap sheet a sufficient reason to delay filing a supplemental information until the date of sentencing. We conclude that under Marshall and Hendrick no clear timetable was established for filing the supplemental information.
We find Fountain took a second step in placing conviction as the legally significant point in determining whether a prosecutor has been sufficiently prompt. The Fountain Court wrote:
"The prosecutor is not foreclosed from proceeding against a person as an habitual offender after conviction on the current offense provided he is unaware of a prior felony record until after the conviction.” Id., 98. (Emphasis added.)
The authority cited in support of this proposition is MCL 769.13; MSA 28.1085. That statute describes a procedure that permits a prosecutor to file a supplemental information after conviction when he or she learns of the prior record after conviction. The previous section of the habitual criminal act describes another procedure, which may be used to enhance sentencing when the prosecution knows of the prior offenses at an earlier stage of the proceeding. That section states, in pertinent part:
"A person to be punished under this section or section 10 or 11 need not have been indicted and convicted as a previous offender in order to receive the increased punishment provided in this section or section 11, but may be proceeded against as provided in section 13.” MCL 769.12; MSA 28.1084.
This language also is permissive: while it offers options to prosecutors, it does not establish preconviction filing as mandatory whenever the prosecution has knowledge of the prior felony offenses.
Before Fountain, Michigan’s courts had never found reversible error when a prosecutor with prior knowledge of an accused’s felony record delayed filing a supplemental information until shortly after conviction. The preference for preconviction filing does appear, however, in In re Brazel, 293 Mich 632, 639-640; 292 NW 664 (1940), where the Supreme Court wrote of the option of proceeding in a single information under a statute similar to the present habitual offender act.
"We must conclude that prior convictions can be charged in an information for a subsequent offense where the prosecutor has knowledge thereof on filing the information, or later in separate proceedings by a supplemental information under 3 Comp Laws 1929, [sec] 17341 (Stat Ann [sec] 28.1085), where such officer acquires such knowledge or information subsequent to conviction.”
Stronger language suggesting the preconviction filing rule appears in Stratton. It is noteworthy, however, that in that opinion, this Court emphasized the permissive statutory language. Stratton, supra, 356.
Neither In re Brazel nor Stratton required a determination of whether the filing schedule suggested by the statute was mandatory. In Marshall, supra, 71, however, this Court addressed that precise question, concluding:
"The holding of Brazel and Stratton does not, however, make it mandatory on the part of the prosecutor to proceed against an accused as a subsequent offender prior to conviction, but is merely permissive in that it allows the prosecutor to so proceed.”
Marshall was cited with approval by the Supreme Court in Hendrick.
We conclude that the preconviction filing requirement in Fountain, previously only a suggested procedure, established a new rule to be followed by prosecutors.
Application of Fountain to the case at bar is simplified if each step of the Fountain rule is treated separately. We have already determined that the simultaneous filing rule does not operate retroactively to the case at bar. See Mohead, supra. The "promptness” requirement, which was clearly established in pre-Fountain decisions, is an old rule, so no retroactivity question is raised. In the instant case, the prosecution filed the supplemental information two days after conviction, a filing date which, under Marshall and Hendrick, satisfies the promptness rule. Since the timing fails to meet the requirements set forth by the new preconviction filing rule established in Fountain, we must determine whether that rule should be applied to the instant case.
The United States Supreme Court discussed the problems of retrospective and prospective application of new rules of law in Linkletter v Walker, 381 US 618, 629; 85 S Ct 1731; 14 L Ed 2d 601 (1965), a case that refused to apply the exclusionary rule announced in Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961), retroactively beyond cases pending on appeal. Linkletter established three guidelines that have been adopted in Michigan. See People v Hampton, 384 Mich 669; 187 NW2d 404 (1971), and People v Kamin, 405 Mich 482; 275 NW2d 777 (1979). The three factors to be considered in determining whether to apply a new rule retroactively are: First, the purpose of the new rule should be examined; second, the reliance on the old rule should be considered; and finally, the effect of retroactive application on the administration of criminal justice must be examined.
Applying Hampton’s first standard to Fountain, we note that the Court expressed two reasons for implementing the simultaneous filing rule: to provide fair notice to the accused and to avoid an appearance of prosecutorial impropriety. No additional reasons were stated for requiring preconviction filing nor are any apparent.
It is noteworthy that defendant in the case at bar had been fully informed, on the record, of the prosecution’s intent to file the supplemental information, so defendant cannot be regarded as having lacked notice. Nor was there any appearance of prosecutorial impropriety in the instant case; the prosecution was employing a legitimate bargaining tool in offering not to file a supplemental information if defendant pleaded guilty. In Bordenkircher v Hayes, 434 US 357, 360-361; 98 S Ct 663; 54 L Ed 2d 604 (1978), the Supreme Court discussed a similar situation, noting that "as a practical matter * * * this case would be no different if the grand jury had indicted Hayes as a recidivist from the outset, and the prosecutor had offered to drop that charge as part of the plea bargain”.
The prosecution’s actions must be regarded as within the scope of the then-existing law. While preconviction filing was suggested in dicta in Stratton and Hatt, the prosecution’s actions were fully justifiable under the holding of Marshall and Bordenkircher. Hampton’s second test, therefore, suggests a prospective-only application.
Finally, Hampton requires an examination of what effect retroactive application would have on the administration of justice. As this Court noted recently in Mohead, broad application of Fountain to all cases in which the original informations were filed before the Fountain decision would benefit a class of defendants who have demonstrated no prejudice and would penalize prosecutors who had violated no known prosecutorial duty.
The Supreme Court of the United States has refused to accord even limited retroactive effect to new prophylactic rules. In Stovall v Denno, 388 US 293; 87 S Ct 1967; 18 L Ed 2d 1199 (1967), the Court refused to apply to cases pending on appeal the new rule of United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967), and Gilbert v California, 388 US 263; 87 S Ct 1951; 18 L Ed 2d 1178 (1967). The Court noted the previous decisions did not correct any serious flaws in the fact-finding process and recognized that retroactive application would operate in some cases where no unfairness was actually present. The Court wrote:
"We also conclude that, for these purposes, no distinction is justified between convictions now final, as in the instant case, and convictions at various stages of trial and direct review. We regard the factors of reliance and burden on the administration of justice as entitled to such overriding significance as to make that distinction unsupportable.” 388 US 293, 300-301.
The preconviction filing rule announced in Fountain should not be applied to cases in which all the critical facts occurred before the date of the Fountain decision. We hold that this new rule should apply only to those cases in which the original informations were filed after August 28, 1979. The case at bar falls outside that class.
Affirmed.
Mackenzie, J., concurred. | [
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Danhof, C.J.
Plaintiff, Bettina Cotton, appeals from a trial court order granting summary judgment in favor of defendants Arnold Kambly, M.D. and University Center, Inc. In her complaint, plaintiff claimed she suffered mental and emotional damages when Dr. Kambly induced her to engage in sexual intercourse with him during the course or under the guise of psychiatric treatment. She alleged willful misconduct, negligence, malpractice, fraudulent misrepresentation and deceit on the part of Dr. Kambly. Her assertion of liability on the part of University Center was based on the doctrine of respondeat superior. Henceforth, references to defendant in this opinion are to Dr. Kambly.
In granting the defense motion for summary judgment, the trial court ruled that the complaint failed to state a claim upon which relief could be granted because the allegations contained therein were covered by MCL 551.301; MSA 25.191, which abolishes all civil causes of action for alienation of affections, criminal conversation, seduction of any person 18 years of age or older and breach of contract to marry. The judge stated that this statute was intended to transfer actions of the type brought by plaintiff to the criminal side of the court. He referred to MCL 750.90; MSA 28.285, which makes it a felony for a doctor to induce a patient to engage in sexual intercourse under the guise of treatment.
Plaintiff brought the present action in her own name for her own injuries; therefore, her action was not based on alienation of affections or criminal conversation, which are common law torts involving interference with the marriage relationship, or breach of contract to marry. Defendant argues that plaintiffs action was, in essence, for seduction. Seduction has been defined as,
"the act of persuading or inducing a woman of previously chaste character to depart from the path of virtue by the use of any species of acts, persuasions, or wiles which are calculated to have, and do have, that effect, and resulting in her ultimately submitting her person to the sexual embraces of the person accused.” Savage v Embrey, 216 Mich 123, 127; 184 NW 503 (1921).
At common law, loss of services was indispensable to a cause of action for seduction and as a result, a right of action for seduction was possessed only by the parents or guardian of a seduced minor. Prosser, Torts (4th ed), § 124, p 884. However, Michigan is one of the few jurisdictions which allowed a woman to sue in her own name for her own seduction. Weiher v Meyersham, 50 Mich 602; 16 NW 160 (1883), Becker v Mason, 93 Mich 336; 53 NW 361 (1892). MCL 551.301; MSA 25.191, abolishing the civil causes of action for seduction of a woman 18 years of age or older and for the other common law torts previously mentioned, became effective in 1935. Essentially the same language is contained in MCL 600.2901; MSA 27A.2901, which is part of the Revised Judicature Act of 1961. MCL 600.2910; MSA 27A.2910, part of the same act, expressly limits actions for seduction to females under the age of 18 and confers standing on the victim’s parents or guardian to bring the action.
Defendant relies on Nicholson v Han, 12 Mich App 35; 162 NW2d 313 (1968), which was cited as controlling by the trial court. In Nicholson, the plaintiff and his wife consulted the defendant doctor for psychiatric and marriage counselling services. According to plaintiff, instead of rendering the agreed-upon services, the doctor persuaded plaintiffs wife to engage in sexual relations with him and to obtain a divorce. Plaintiff sued, alleging breach of contract, malpractice, assault and battery, negligence and fraud on the part of the doctor. The lower court dismissed the action and this Court affirmed, holding that plaintiffs breach of contract and fraud allegations were actually claims for alienation of affections and criminal conversation abolished by statute.
We do not find Nicholson dispositive in the instant case. This Court never addressed the question of malpractice in Nicholson, since the appeal was from the trial court dismissal of the breach of contract and fraud counts only. Even if we employ the type of analysis utilized in that case, whereby we look beyond the labels used by plaintiff in defining her cause of action to determine whether her claim is for seduction, we find summary judgment was improperly granted in the present case. Part of plaintiffs claim is for medical malpractice, which has been defined as the failure of a member of the medical profession, employed to treat a case professionally, to fulfill the duty to exercise that degree of skill, care and diligence exercised by members of the same profession, practicing in the same or similar locality, in light of the present state of medical science. Kambas v St Joseph’s Mercy Hospital, 389 Mich 249; 205 NW2d 431 (1973). Plaintiff alleges that defendant induced her to engage in sexual relations with him as part of her prescribed therapy. We see no reason for distinguishing between this type of malpractice and others, such as improper administration of a drug or a defective operation. In each situation, the essence of the claim is the doctor’s departure from proper standards of medical practice. Therefore, while the facts alleged by plaintiff might also state a cause of action for common law seduction, we do not find that seduction was the gist of her malpractice claim. We agree with the type of reasoning employed in Roy v Hartogs, 85 Misc 2d 891; 381 NYS2d 587 (1976), where a patient sued her psychiatrist claiming that he had engaged in sexual intercourse with her as part of her prescribed therapy. The Court stated:
"The right of action to recover a sum of money for seduction has been abolished by article 8 of the Civil Rights Law and the predecessor legislation found in article 2-A of the Civil Practice Act. These statutes were passed, as a matter of public policy, so that marriages should not be entered into because of the threat or danger of an action to recover money damages and the embarrassment and humiliation growing out of such action (Fearon v Treanor, 272 NY 268, 274). However, this legislation did not abolish all causes of action wherein the act of sexual intercourse was either an 'incident of or 'contributed to’ the ultimate harm or wrong (Tuck v Tuck, 14 NY2d 341). In this proceeding, the injury to the plaintiff was not merely caused by the consummation of acts of sexual intercourse with the defendant. Harm was also caused by the defendant’s failure to treat the plaintiff with professionally acceptable procedures (cf., Zipkin v Freeman, 436 SW2d 753, 761, 762 [Mo, 1969]; cf., Anclote Manor Foundation v Wilkinson, 263 So 2d 256, 257 [Fla, 1972]). By alleging that his client’s mental and emotional status was adversely affected by this deceptive and damaging treatment, plaintiff’s counsel asserted a viable cause of action for malpractice in his opening statement (Tuck v Tuck, supra, p 345).” 85 Misc 2d 891, 892-893.
We hold that the statutes abolishing the civil cause of action for seduction do not bar plaintiffs malpractice claim. The fact that defendant may also be subject to criminal and professional sanctions for his conduct is no reason for denying plaintiff her right to bring a civil action for malpractice. See, Albert v Chambers, 335 Mich 111; 55 NW2d 752 (1952).
Reversed. Costs to plaintiff. | [
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] |
J. H. Gillis, P.J.
Defendants, G & M Underground Contracting Company, Inc., Allied Aggregate Transportation Company, Inc., and American Casualty Company, appeal from the trial court’s entry of judgment in plaintiff’s favor in the amount of $90,000. This sum represents the total purchase price for two lift stations manufactured by plaintiff pursuant to a contract between plaintiff and defendants G & M and Allied. American Casualty Company is the statutory surety required by MCL 129.201; MSA 5.2321(1).
Defendants raise two issues on appeal. They first assert that the trial court erred in granting plaintiff’s motion for summary judgment. The second claimed error resulted from the trial court’s failure to order the defendants to submit their proofs prior to plaintiff’s presentation, pursuant to GCR 1963, 507.2. Plaintiff presents a counterstated issue: whether the trial court properly entered judgment in favor of plaintiff after defendants rested without introducing any evidence of their alleged affirmative defenses. In order to resolve the conflict presented by this case, it is necessary to review in some detail the pleadings and discovery filed in this case.
On August 15, 1978, plaintiff filed a two-count complaint in Macomb County Circuit Court. The complaint alleged in pertinent part as follows in Count I;
"3. That on June 2, 1976, Defendant, General Contractors, entered into the contract with Washington Township of Macomb County, Michigan whereby Defendant, General Contractors, were to construct an interceptor sewer system in Washington Township.
"4. That on or about February 13, 1976, Plaintiff and Defendant, General Contractors, entered into a contract by which Plaintiff, subcontractor, agreed to build for Defendant as General Contractors, two lift stations; Plaintiff further agreed as part of said contract to start up the operation of said lift stations as part of the interceptor sewer system being constructed by Defendant, General Contractors, pursuant to Defendant, General Contractors’ contract with Washington Township.
"5. That the agreed upon price between Plaintiff and Defendant, General Contractors, for the manufacture, delivery and starting up of the lift stations was $90,000.
"6. That Plaintiff delivered the lift stations to Defendant, General Contractors, on or about November 27, 1977, in accordance with said contract.
"7. That Defendant, General Contractors, accepted the lift stations delivered on the above date, they incorporated the lift stations in the construction job being performed pursuant to their contract with Washington Township.
"8. That Defendant, General Contractors, have continually refused to pay Plaintiff for work performed or any costs incurred with regard thereto even after repeated requests regarding same from the Plaintiff; that such refusal on the part of Defendant, General Contractors, constitutes a breach of their contract with the Plaintiff.
"9. That Plaintiff stands ready, willing and able to perform any remaining work pursuant to its contract with Defendant, General Contractors, but that Defendant, General Contractors’ failure and refusal to pay for the goods already delivered and accepted by them places said Defendant, General Contractors, in breach and renders Plaintiff justly apprehensive that any payment will be forthcoming.”
Count II was directed at American Casualty’s obligation as surety. It is not directly at issue on appeal and will not be referred to again.
Defendants’ answer was timely filed on September 5, 1978, and contained the following responses to the above-quoted paragraphs from plaintiffs complaint:
"3. Answering Paragraph 3, Defendants admit same.
"4. Answering Paragraph 4, Defendants admit same.
"5. Answering Paragraph 5, Defendants admit same.
"6. Answering Paragraph 6, Defendants deny that delivery was made in accordance with the contract.
"7. Answering Paragraph 7, Defendants deny same as untrue.
"8. Answering Paragraph 8, Defendants admit the allegation with respect to refusal to pay. Further answering said paragraph 8, Defendants deny that the work was performed, and therefore Defendants have refused to pay for same.
"9. Answering Paragraph 9, Defendants are without sufficient information upon which to base an answer for the reason Plaintiff has refused to perform its contract with Defendants, and leave Plaintiff to its proofs.”
Defendants also set forth the following as affirmative defenses:
"1. Defendants incorporate herein their Answers to Counts I and II of Plaintiff’s Complaint.
"2. Plaintiff failed to make timely delivery.
"3. Defendant contractors had to spend substantial transportation costs as a result of failure to Plaintiff to make timely delivery.
"4. The products furnished by Plaintiff failed to meet contract specifications.
"5. Plaintiff has refused to complete its obligation under the contract.
"6. Defendants reserve the right to allege such other and further Affirmative Defenses as may come to its knowledge during the pendency of this action.”
Subsequently, interrogatories were propounded by plaintiff and answered by defendants. The most pertinent part of plaintiffs questions and defendant’s answers reads as follows:
"5. Please give the date on which the lift stations referred to in paragraphs 4 through 7 of Plaintiffs Complaint were delivered to Defendant.”
"5. Duplex Jewell Chadwick delivered 12/5/77, shipped 11/30/77. Triplex Hayes-26 mile delivered 10/ 31/77, shipped 10/28/77.”
"6. Please state where such lift stations were delivered to and/or accepted by Defendant, where such lift stations were installed by Defendant, and, if such lift stations were stored for a significant period of time in the interim between delivery and installation, please state where and in what manner such lift stations were stored.”
"6. A. Both stations delivered to 30665 Groesbeck, Roseville, MI. .
"B. Duplex station was installed at Jewell and Chadwick, Washington Township, Macomb County, Michigan.
"C. Triplex station was installed at 26 Mile West of Hayes, Washington Township, Macomb County, Michigan.
"D. Both stations stored for approximately 5 months.
"E. Both stations stored at 30665 Groesbeck, Rose-ville,. MI in manner commensurate with manufacturer’s instructions.”
"11. Please state in detail the manner in which delivery of the lift stations by Plaintiff failed to comply with the contract between Plaintiff and Defendant, if indeed the delivery failed to so comply.”
"H. * * * Plaintiffs’ Quotations S-12975-Z dated December 9, 1976. Estimated delivery of 20-24 weeks which would have scheduled availability on or about June 15, 1976. Defendant relied on this information when defendant bid the project and defendant relied on promised availability in planning and scheduling dewatering of the project. Non-availability of stations caused defendant to incur costs not planned on. Pump stations were not ready for delivery until October and December, 1977.”
"12. Please state in detail the manner in which the lift stations delivered by Plaintiff failed to meet the specifications of the contract, if indeed the lift stations failed to meet such specifications.”
"12. Refer to answer to Paragraph 11 above. Further, pump stations were defective and/or did not meet specifications. Defendant had to hire Detroit Elevator Co. and Lift Station Service Co. and use own men, materials, equipment, etc. to render stations in compliance with contract specifications.”
"13. Please state in detail in what manner Plaintiff has refused to complete its obligations under the contract between Plaintiff and Defendant, if indeed Plaintiff has failed to meet such obligations.”
"13. Plaintiff failed to provide timely delivery as promised and failed to deliver equipment in accordance with specifications.”
A bench trial was held on July 10, 1979. As soon as the case was called, defense counsel moved for a two-week adjournment, "based upon a last minute deposition taken by the Plaintiffs [sic] on Friday, July 6th”. Plaintiff objected to the motion because the transcript of the deposition had been available to defendants the day before, and because defendants had been granted an eight-day adjournment of the deposition from the originally scheduled date. The trial judge denied the motion on the basis that, in the five weeks since the trial date was set, defense counsel had never even intimated that he would not be prepared to proceed on July 10, 1979.
Plaintiffs attorney then made his opening statement, during which he briefly summarized the facts of the case, and then stated in pertinent part as follows:
"[Mr. Turnbull (plaintiff’s counsel)]: The pleadings on file with the Court, the answers of the complaint, interrogatories and answers thereto, outline the essential elements of this contract. For that reason, my opening statement will be quite brief because of the [fact that the] essential elements of the contract are admitted by the Defendants. I would make reference at this point to paragraph four of the Plaintiffs complaint, which alleges that on or about—
"Mr. Doyle [defendants’ counsel]: May it please the Court, we object to this form of opening statement as being argumentative.
"Mr. Turnbull: My opening statement is based upon Michigan General Court Rule 604, which states any facts which are admitted in pleadings need not be profved] in Court, and we are trying to arrange our proofs and tell you we are going to arrange our proofs by way of this opening statement, in order not to waste the Court’s time with unnecessary testimony or other documentations.
"The Court: You may proceed.
"Mr. Turnbull: [After noting that defendants admitted the allegations in ¶[¶[ 4 and 5 of the complaint.] Throughout [sic] the rest of Plaintiff’s complaint, the Defendant [sic] sets various affirmative defenses and he [sic] also lists affirmative defenses at the end of his [sic] answers, defenses going basically to time and delivery on the contract. Defendant [sic] alleges whoever [sic] it was was not timely or not to the right place, and certain elements of the subject matter of the contract did not meet the specifications. Defendant [sic] does admit in the pleadings and in the interrogatories th[e] delivery of the pump station[s] * * * which are the subject matter of the contract.
"It thus appears from the pleadings [that] this is a case that Plaintiff is inserting [sic] a case of substantial performance under the contract. Defendant [sic] rather than seeking to deny the contract, sets up various affirmative defenses upon which it [sic] predicates its unwillingness to pay pursuant to the terms of the contract.
"[As] Plaintiff’s case in chief, Plaintiff is prepared to show to the Court that substantial performance has been tendered on this contract. In fact, Plaintiff will assert to the Court that Defendant [sic] has admitted Plaintiff’s compliance with the essential terms of the contract and is now asserting affirmative defenses to the contract. Plaintiff, pursuant to GCR 604 would then state to the Court that it’s the Defendant’s [sic] burden to go forward * * * in accordance with 604 in this case and support its [sic] affirmative defenses by representing his [sic] own case in chief at this time.
"Any questions, your Honor?
"The Court: No, but I assume he will.
"Mr. Turnbull: Based on my opening statement we would like to rest and reserve the right to rebuttal of Defendant’s contemplated opening statement.
"Mr. Doyle: We rest, your Honor.
"Mr. Turnbull: Your Honor, at this time, Plaintiff would like to make a motion for summary judgment based on the pleadings filed in this matter.
"Mr. Doyle: We would request the Court to allow us to submit briefs based upon the fact that we have denied delivery in our answer.
"Mr. Turnbull: Delivery cannot be denied, your Honor, interrogatories—
"Mr. Doyle: We have denied it.
"The Court: I’ll take your briefs.
"Mr. Doyle: May it please the Court, may we have a more specific definition as to what the motion for summary judgment was based on? I believe it was based on the fact that they said we have admitted specific [sic] substantial performance. That is the way I understand it.
"Mr. Turnbull: Based upon my opening statement that was the basis of the summary judgment.
"The Court: I think as long as he asked that you clarify, you better clarify it. No point in the two of you doing a lot of briefs and all of a sudden finding out one side was talking about apples and the other side was talking about oranges.
"Mr. Turnbull: I would suggest to counsel that he review the record, then.
"Mr. Doyle: Okay, your Honor. Thank you.” (Emphasis supplied.)
The brief submitted to the trial court by plaintiff asserted that defendants’ assertion of late delivery as an affirmative defense constituted an admission that delivery had occurred under a contract between the parties. Because defendants rested without putting in any proofs in support of their affirmative defenses, plaintiff claimed that judgment in its favor was required. Defendants responded by arguing the narrow issue whether plaintiff should be granted summary judgment under GCR 1963, 117. Finding that none of the three grounds on which summary judgment may be based could apply in the instant case, defendants argued that their denial of delivery in accordance with the contract was sufficient to overcome plaintiff’s motion.
Although plaintiff had orally referred the trial court to defendants’ answers to the interrogatories, during its opening statement, no explicit reference was made to those answers in plaintiff’s brief. A citation in support of plaintiff’s argument did refer to the answers to the interrogatories, however, and plaintiff’s subsequent reply brief clearly stated plaintiff’s reliance on admissions made in the answers to the interrogatories. Defendants’ brief addressed the use of interrogatories in the context of a motion for summary judgment under GCR 1963, 117.2; defendants’ reply brief did not discuss the issue at all.
On November 30, 1979, the trial court issued a written opinion granting judgment in favor of plaintiff. The opinion opened with a statement of facts which could only have been gleaned from the pleadings and the answers to the interrogatories. For instance, the court noted that the lift stations were delivered to defendants and "were incorporated by the defendants into the sewer system construction”. In defendants’ answer to the complaint, defendants denied that they had accepted the lift stations and incorporated them into the sewer system. In paragraph 6 of the answers to the interrogatories, however, defendants stated that the stations were delivered and installed in the construction. Thus, the trial court clearly relied on more than the complaint and answer to resolve plaintiff’s motion.
The trial court considered the effect of defendants’ decision to rest without making an opening statement or putting in any proofs. It ruled that such tactic "force[d] the Court to make a judgment on the pleadings and plaintiffs statement”. Citing Obremski v Dworzanin, 313 Mich 495, 500; 21 NW2d 828 (1946), the court noted that judgments are rarely granted after a plaintiff’s opening statement, but held that judgment may be rendered under such circumstances if there are no questions of fact requiring trial on the merits. The court then made the following findings: (1) the contract was composed of several letters exchanged by the parties between December 9, 1975, and May 19, 1976, none of which contained a specific delivery date; (2) plaintiff claimed substantial performance and defendants admitted in their pleadings and answers to the interrogatories that delivery was made; (3) defendants’ unwillingness to support with proofs their pleaded affirmative defenses evidenced that the defenses were without merit; and (4) there were no questions of fact other than those raised by the plaintiff and admitted by the defendants in the pleadings. Finally, the court noted that plaintiff’s request for a summary judgment was not technically correct because the nature of plaintiff’s statement reflected his intent merely to request a judgment on the pleadings. Judgment was entered on December 10, 1979.
As noted above, defendants’ second issue on appeal is premised on GCR 1963, 507.2. That rule provides as follows:
"Unless otherwise ordered by the court, the plaintiff shall first present the evidence in support of his case. When in any action, the defendant in his answer admits all facts and allegations of the plaintiff’s complaint to the extent that in the absence of further statement on his behalf judgment should be entered on the pleading for the plaintiff, and defendant asserts a defense on which he has the burden of proof either as a counterclaim or an affirmative defense, the defendant shall first present the evidence in support of his case.”
Defendants argue that, if the pleadings truly justified a judgment in plaintiff’s favor, the trial court was under a duty to instruct defendants that they were required to "first present evidence in support of [their] case”.
As plaintiff notes, defendants never raised this issue below, despite the fact that they filed a lengthy brief on the question whether plaintiff should be awarded judgment after the abbreviated "trial”. Further, immediately after plaintiff rested, defendants were given an opportunity to present their case. The decision to rest without submitting one iota of evidence was apparently a strategic move which can in no way be charged to the trial court. Further discussion is unnecessary.
As to the merits of the judgment granted by the trial court, several comments are in order. The lower court file of relevant documents filed by the parties before trial consists of the complaint, the answer, the interrogatories propounded by plaintiff, the answers to plaintiff’s interrogatories, and a transcript of the deposition of the president of G & M Underground Contracting.
On appeal, defendants argue that, if judgment on the pleadings was made, plaintiff still did not establish a prima facie case, because answers to interrogatories are not pleadings. Before determining whether defendants’ argument has merit, it is important to sort out exactly what happened at the trial. Admittedly, plaintiff’s opening statement was referenced to GCR 1963, 604, which provides that:
"Any statement of fact set forth in any pleadings shall be treated as an admission by the pleader and need not be proved by the opposite party.”
GCR 1963, 110.1, states that:
"There shall be a complaint; an answer; a reply to an answer demanding a reply and to a counterclaim denominated as such; an answer to a cross-claim if the answer contains a cross-claim; a third-party complaint if a person who was not an original party is summoned under Rule 204; and a third-party answer if a third-party complaint is served. No other pleading shall be allowed except that a reply may be made to an answer or a third-party answer.
A reading of the foregoing court rule reveals that the complaint and the answer are pleadings on which plaintiff could rely for proof of certain elements of its claim.
The plaintiff, and the trial court, also relied on defendants’ answers to plaintiffs interrogatories to establish plaintiffs case. GCR 1963, 309.4 permits the use of answers to interrogatories "to the same extent as provided in subrule 302.4 for the use of a deposition of a party”. GCR 1963, 302.4 permits an adverse party to use any part or all of a party’s deposition for any purpose, "so far as admissible under the rules of evidence”. This latter phrase implies that such answers must be offered and admitted into evidence before being considered part of a party’s proofs. While there are no Michigan cases on point, cases in other jurisdictions offer some instruction on the issue.
In Coca Cola Bottling Co v Clark, 299 So 2d 78 (Fla App, 1974), Coca Cola appealed the trial court’s refusal to grant a directed verdict in its favor. One of the grounds urged by the appellee in support of the denial of the motion was that appellant had admitted an essential element of the claim in its answers to interrogatories and requests for admissions. The appellate court rejected this argument as follows:
"[W]e have carefully read the entire transcript of the trial proceedings and fail to there find any reference to interrogatories or requests for admissions.
"It is elementary that a jury is entitled to consider only such evidence as is properly adduced during the trial. Matters dehors the record may not properly be considered. The issues to be resolved by the trier of facts are determined by the complaint and answer (including any amendments thereto).
"The issues, however, must be resolved by the trier of facts in accordance with the evidence, or stipulations. Pretrial discovery, including depositions, written interrogatories and answers thereto, requests for admissions and answers thereto, do not become a part of the evidence to be considered in resolving the trial issues unless properly offered and received into evidence. The mere act of filing a document or other tangible item in the file of the cause does not thereby render it a part of the evidence to be considered by the trier of facts.
"An appellate court, reviewing a post-trial judgment (as distinguished from a pretrial judgment, such as a summary judgment, judgment on the pleadings or judgment of dismissal) may only consider that which was properly made a part of the trial record.” 299 So 2d 78, 81-82.
As to the question whether answers to interrogatories are "pleadings”, the Florida court stated:
"[A]nswers to interrogatories and requests for admissions are not 'pleading’. Pleadings are the allegations made by the parties to a suit for the purpose of presenting the issues to be tried and determined. They are the formal statements by the parties of the operative, as distinguished from the evidential, facts on which their claim or defense is based.” Id., 82.
See also, Heilig v Studebaker Corp, 347 F2d 686, 689 (CA 10, 1965), Coca Cola Co v Dixi-Cola Labs, Inc, 30 F Supp 275, 277 (DC Md, 1939), and Fender v Colonial Stores, Inc, 138 Ga App 31; 225 SE2d 691 (1976).
In each of the foregoing cases, the question whether interrogatories are pleadings arose in the context of a jury trial. Thus, although the reasoning may be analogous, the exigencies are not the same in a case tried to the trial judge alone. In order to assure jury consideration of the substance of answers to interrogatories, such evidence must be offered and admitted into evidence. The same is necessarily true of pleadings, but pleadings do not suffer from the same vulnerability to objection under the rules of evidence.
In the instant case, defendants argue that plaintiff must have offered the answers to the interrogatories for admission into evidence before the trial court could consider them as part of the evidentiary record. Even more particularly, defendants assert that the trial court erred because it considered the answers as pleadings within the provisions of GCR 1963, 604. A review of the lower court’s opinion reveals, however, that it did not incorrectly characterize the answers as pleadings. Thus, it is apparent that the trial judge considered the answers to be part of the evidentiary record on which he was required to decide plaintiffs motion. This was error.
When the trial court began its consideration of the merits of plaintiffs motion, the case had gone to trial and the parties had rested. At that point, the trial court was obligated to act as trier of fact; the motion for summary judgment could not be considered. The only matters pertinent to the court’s decision were the pleadings and the evidence. The trial court’s consideration of answers to interrogatories not received into evidence was improper. This error requires reversal for a new trial.
Reversed and remanded for a new trial.
The deposition was not referred to in plaintiff’s opening statement nor does it appear to have been considered by the trial court, given the unbroken seal on the envelope in which it was filed.
The court said: "In his opening statement plaintiff concentrated on defendant’s admissions and claimed that the pleadings showed that plaintiff has substantially performed under the contract. Defendants did admit in the pleadings and in interrogatories that the two pumping stations were delivered.” | [
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D. C. Riley, P.J.
On November 10, 1977, defendant was convicted, along with two codefendants, of delivery of heroin, MCL 335.341; MSA 18.1070(41). Thereafter, she was sentenced to a prison term of 10 to 20 years. On January 2, 1979, defendant was granted a new trial by the trial court, based on a finding that she had been denied effective assistance of counsel. On retrial, she was again convicted, and on June 29, 1979, she received a sentence of 9 to 20 years. Defendant appeals as of right.
At defendant’s retrial, an undercover police officer testified that he had met the defendant at an apartment in Detroit on July 25th and 26th, 1977, when he purchased $40 and $250 worth of suspected heroin from one of defendant’s codefendants who was also present in the apartment. He further testified that, on the latter date, he observed a black male in the bedroom mixing white and brown powder and that the defendant was present in that room. The officer further explained to the jury how he arranged, through one of Hooks’s codefendants, to have the codefendant’s "connection” sell $30,000 worth of heroin to a "farmer from up north” who was actually another undercover police officer. Arrangements were made for this transaction to take place at a Detroit motel.
Subsequently, the two undercover officers, together with Hooks’s codefendants, met at the motel. About five minutes after one of the codefendants placed a telephone call, defendant came into the room and removed a brown paper bag from her purse. She gave it to one of the codefendants who opened it and removed a plastic baggie that contained heroin. All of the participants were then arrested at the scene of the crime by other police officers.
Defendant contends that the following unobjected-to remarks made by the prosecutor in his closing argument were prejudicial and inflammatory and that she was thereby denied a fair trial:
"And I guess that when it comes down to it everybody has an interest. The police officers had an interest in penetrating this organization. The defendant now has an interest in extricating herself or getting out of it in any way that she can. And I guess that you all have an interest. And I think that you really have a paramount interest. That you can come to court and sit here and listen to this trial, listen to the evidence, listen to the charade, and hold these kind of people responsible to a correct verdict. That you’re not going to stand for this type of thing, $30,000.00 worth of poison going out into the community and somebody coming in an saying oh I didn’t know anything about it, when all the evidence, the demeanor, and everything is completely contrary. It insults the collective common sense.”
In People v Farrar, 36 Mich App 294; 193 NW2d 363 (1971), this Court adopted the following American Bar Association standard regarding prosecutorial conduct during argument to the jury:
"The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law.” Id., 299.
This Court has found comments to be particularly prejudicial when the prosecutor has made appeals to the jury to perform a "civic duty”, People v Biondo, 76 Mich App 155; 256 NW2d 60 (1977), People v Bass, 88 Mich App 793; 279 NW2d 551 (1979), and when, as here, the comments have been directed toward inflaming the jury’s fear regarding the drug traffic in the community, People v Gloria Williams, 65 Mich App 753; 238 NW2d 186 (1975).
The prosecutorial comments of which the defendant complains in the instant case are not unlike those made by the prosecutor in Gloria Williams, supra. There, the defendant was convicted by a jury of control of heroin. This Court reversed the defendant’s conviction based on the following rebuttal argument made by the prosecutor, and to which the defendant had objected at trial:
"Ladies and gentlemen of the Jury, you have an opportunity to effect [sic] the drug traffic in this city. You have a voice. You have a chance to use it.” Id., 755.
In Gloria Williams, we held that this type of prosecutorial argument failed to "comport with the mandate of Farrar, supra”, and we therefore reversed the conviction.
The prosecutor’s arguments in the instant case closely paralleled those condemned in Gloria Williams. His repeated references to heroin as "poison” and the trial as being a "charade”, as well as his appeal to the jury to consider their "paramount interest”, certainly violated the spirit, if not the letter, of the standard enunciated in Farrar, supra. Nevertheless, there is an important distinguishing factor between Gloria Williams and the case at bar, namely, that here the comments were unobjected to. Even if the prosecutor’s remarks were prejudicial, "[defendant's failure to raise an objection at trial precludes appellate review unless it would result in a miscarriage of justice”. People v Clark, 88 Mich App 88, 92; 276 NW2d 527 (1979). In order to determine whether the defendant was denied a fair trial, we examine the "prosecutor’s argument and conduct as a whole, and the cautionary instructions given”. People v Choate, 88 Mich App 40, 49; 276 NW2d 862 (1979). Both the explanation by the prosecutor that what he said was not to be considered evidence and the cautionary instruction by the trial court concerning the arguments of counsel reduced any prejudice.
Although we conclude that the prosecutorial argument did not rise to the height of being termed a miscarriage of justice, as that phrase is defined in People v Robinson, 386 Mich 551; 194 NW2d 709 (1972), and MCL 769.26; MSA 28.1096, we do note that the prosecutor in the instant case came perilously close to injecting, needlessly, reversible error into the trial. We also take this opportunity to caution prosecuting attorneys as to their special function:
"The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict.” Code of Professional Responsibility and Canons, EC 7-13; People v Farrar, supra, 299.
Defendant also assails the validity of her sentence, attacking it on two grounds. Defendant first contends that the trial judge violated defendant’s Fifth Amendment rights by conditioning the possible imposition of a less severe sentence upon the defendant’s willingness to cooperate with law enforcement officers in further investigations of drug trafficking and, second, that the judge violated the principle of individualized sentencing due to his hard line policy against drug offenders.
Defendant’s Fifth Amendment claim is premised on comments made by the sentencing judge during an in camera discussion with defense counsel that the defendant could anticipate the maximum sentence unless intelligence information was offered about other drug transactions.
We conclude that defendant’s Fifth Amendment rights were not violated. By contrast to the maximum sentence given to one of the codefendants, the defendant’s sentence does not reveal that the court actively used its sentencing power to elicit information from the defendant or that she was punished for exercising her right to remain silent. Upon the imposition of the second sentence, not only did defendant receive four years and four months less than the maximum sentence that could have been imposed, but the judge also did not state on the record, as he had at the earlier sentencing, that his decision was being based on defendant’s failure to cooperate with law enforcement officials.
Although we fail to see how defendant’s Fifth Amendment rights were violated, we believe a recent United States Supreme Court decision supports our result. In Roberts v United States, 445 US 552; 100 S Ct 1358; 63 L Ed 2d 622 (1980), the Court held that Fifth Amendment rights are not violated where the defendant is asked to give information on drug trafficking in exchange for a favorable disposition of his or her case or where the failure of the defendant to cooperate in this manner is taken into account in imposing sentence. The Court ruled, in pertinent part, as follows:
"Unless his silence is protected by the privilege against self-incrimination * * * the criminal defendant no less than any other citizen is obliged to assist the authorities. The petitioner, for example, was asked to expose the purveyors of heroin in his own community in exchange for a favorable disposition of his case. By declining to cooperate, petitioner rejected an 'obligation] of community life’ that should be recognized before rehabilitation can begin. See Hart, The Aims of the Criminal Law, 23 Law & Contemp Prob 401, 437 (1958). Moreover, petitioner’s refusal to cooperate protected his former partners in crime, thereby preserving his ability to resume criminal activities upon release. Few facts available to a sentencing judge are more relevant to ' "the likelihood that [a defendant] will transgress no more, the hope that he may respond to rehabilitative efforts to assist with a lawful future career, [and] the degree to which he does or does not deem himself at war with his society’ ”. United States v Grayson, supra [438 US 41 (1978)], at 51, quoting United States v Hendrix, 505 F2d 1233, 1236 (CA 2, 1974).” Roberts, 558.
The Court then rejected the claim that the defendant’s Fifth Amendment rights had been violated.
"Petitioner insists that he had a constitutional right to remain silent and that no adverse inferences can be drawn from the exercise of that right. We find this argument singularly unpersuasive. The Fifth Amendment privilege against compelled self-incrimination is not self-executing. At least where the government has no substantial reason to believe that the requested disclosures are likely to be incriminating, the privilege may not be relied upon unless it is invoked in a timely fashion” citations omitted).
"In this case, as in Vajtauer v Commissioner of Immigration, 273 US 103, 113 (1927), petitioner 'did not assert his privilege or in any manner suggest that he withheld his testimony because there was any ground for fear of self-incrimination. His assertion of it here is evidently an afterthought.’ The Court added in Vajtauer that the privilege 'must be deemed waived if not in some manner fairly brought to the attention of the tribunal which must pass upon it’. Ibid. Thus, if petitioner believed that his failure to cooperate was privileged, he should have said so at a time when the sentencing court could have determined whether his claim was legitimate.” Id., 559-560.
As for the second prong of defendant’s argument, that the judge violated the principle of "individualizing sentencing”, we must also disagree.
We agree that the Legislature has adopted, and the judiciary has enforced, a policy requiring individualized sentencing. People v Chapa, 407 Mich 309; 284 NW2d 340 (1979). As the Supreme Court stated in People v McFarlin, 389 Mich 557, 574; 208 NW2d 504 (1973):
"The modern view of sentencing is that the sentence should be tailored to the particular circumstances of the case and the offender in an effort to balance both society’s need for protection and its interest in maximizing the offender’s rehabilitative potential.”
This principle was recently reaffirmed in People v Triplett, 407 Mich 510, 515; 287 NW2d 165 (1980), where the Court noted that:
"sentencing must be individualized and tailored to the particular circumstances of the case and the offender at the time of sentencing.”
Having reviewed the record thoroughly, we cannot say the trial judge acted outside of the individualized sentencing principle as outlined above. First, the events which defendant regards as prejudicing her sentence all occurred in connection with the first trial and we do not believe they carried over into her resentencing, which occurred some 19 months following her original sentencing. Although the judge acknowledged at the resentencing that he had a "hard attitude” toward narcotic dealing, he did not indicate he retained his attitude toward giving a maximum sentence for this type of offense. In fact, the results of the hearing indicate the contrary. The defendant was sentenced well below the maximum allowed by law, a fact suggesting defendant’s sentence was "tailored to the particular circumstances of the case and the offender”. People v McFarlin, supra, 574.
Second, a review of the sentencing proceeding transcript reveals that the judge properly exercised his discretion in imposing sentence and did not, as defendant contends, base his decision solely on a "policy” of cracking down on drug traffickers. The decision was based on several factors. For example, the court considered complimentary letters sent to the court by correction officers recommending leniency for defendant. The court also considered the impact a harsh sentence would have on defendant’s pending child custody dispute.
In short, this case is distinguishable from People v Chapa, supra, where a local policy of mandatory prison terms for heroin dealers prevented the judge from exercising his sentencing discretion. To the contrary, the judge here tailored the sentences imposed on each codefendant involved to meet their unique characteristics. Additionally, the judge rewarded what appears to be a positive attitude change by the defendant by lowering her minimum sentence from 10 years to 9 years.
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Per Curiam.
Plaintiff appeals as of right from awards of alimony and attorney fees entered in favor of defendant pursuant to a judgment of divorce and an amendment thereto. The original judgment awarded defendant wife alimony in the amount of $117,225 to be paid at the rate of $225 per week for 521 consecutive weeks. On motion by plaintiff, the court’s alimony award was amended to provide that the plaintiff pay alimony in the sum of $78,150 at the rate of $150 per week for 521 consecutive weeks. Such alimony would cease at such time as the gross amount had been paid in full or when defendant remarried, whichever first occurred. We find no abuse of discretion by the court in awarding alimony and that the trial court made the determination of alimony based upon the proper factors as set forth in Holbern v Holbern, 91 Mich App 566; 283 NW2d 800 (1979), and Chisnell v Chisnell, 82 Mich App 699; 267 NW2d 155 (1978). Accordingly, we decline to reverse or modify the finding of the trial court relative to alimony.
The plaintiff also argues for reversal and remand for a new trial, claiming that the trial court indicated bias against the plaintiff. The claim was based upon a remark of the trial judge at the hearing on plaintiff’s motion to modify the alimony provision contained within the following statement:
"We’re getting close to the bottom line. The point that I made a while ago, a little out of logical order, was that subsequent to the original award of temporary alimony, Dr. Tyrrell’s earning capacity changed. How much it changed, I frankly don’t know. And I’ve heard a lot of motions and heard the trial and some postjudgment motions in this case; and I frankly don’t know. It was clear from the inception that alimony was going to be a consideration. Frankly, I felt throughout these proceedings that Dr. Tyrrell’s credibility just was very small, but there’s no question that he can’t earn as much money right now as he was earning at the time of the temporary award.
"The case has been long, complex, and time consuming; and I suspect that I have allowed some irritation with Dr. Tyrrell, and I think I’ve allowed my belief that he has not told the whole truth to cause me to be a little bias [sic] against him. And very frankly, I have not been all that comfortable with the amount of the alimony awarded in view of his health condition. That’s a good alimony award.
"At the time of the original award, I think it was proper. Circumstances changed. The trial record reflects that. I am going to grant this motion with respect to that portion which asks that alimony be reduced. I am going to reduce the alimony to the amount of $150 a week. I’m going to make that reduction retroactive to the filing of the judgment of divorce.” (Emphasis added.)
Disqualification of a trial judge because of prejudice was formerly governed by the provisions of GCR 1963, 405.1(3). Any disqualification of judges is now governed by GCR 1963, 912.2(2), which provides in pertinent part:
“A judge is disqualified when he cannot impartially hear a case, including a proceeding where the judge * * *
"(2) is personally biased or prejudiced for or against a party or attorney; * * *”
In the instant case, plaintiff never moved, pursuant to the above-quoted rule, to disqualify the trial judge. However, a waiver resulting from failure to move to disqualify a judge is not absolute. People v Dixson, 403 Mich 106; 267 NW2d 423 (1978).
Before a trial judge is disqualified, there must be a showing of actual personal prejudice. People v Page, 83 Mich App 412; 268 NW2d 666 (1978).
This case is distinguishable from People v Lobsinger, 64 Mich App 284; 235 NW2d 761 (1975), since plaintiff herein has failed to show that the trial court was in any way prejudiced against him at the time of trial. The trial judge’s remarks merely indicate that, after having listened to plaintiffs testimony, which he felt was untruthful, he became somewhat irritated. The trial judge’s use of the term "bias” must be examined in the context in which it was used. Moreover, moments after the court said it was biased, the court granted plaintiff’s motion and ordered a substantial reduction in the alimony. Further, the appellant is unable to cite even one other instance where the trial judge manifested any prejudice against appellant.
Finally, plaintiff argues that the imposition of a lien by the trial court on property awarded to plaintiff to secure payment of an award of attorney fees to defendant’s attorney is improper because such a lien is not authorized by statute. We disagree.
We find that the trial court had the power to impose a judicial lien to secure payment of attorney fees, such authority stemming from MCL 552.13(1); MSA 25.93(1) which provides as follows:
"In every action brought, either for a divorce or for a separation, the court may require either party to pay alimony for the suitable maintenance of the adverse party, to pay such sums as shall be deemed proper and necessary to conserve any real or personal property owned by the parties or either of them, and to pay any sums necessary to enable the adverse party to carry on or defend the action, during its pendency. It may award costs against either party and award execution for the same, or it may direct such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver.” (Emphasis added.)
We also note Wolter v Wolter, 332 Mich 229; 50 NW2d 771 (1952), provided a lien on specific real estate which had been awarded to the defendant husband for the payment of an attorney fee to the plaintiff-wife’s attorney.
We affirm the judgment of the trial court. Costs to defendant. | [
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R. M. Ransom, J.
This matter is before the Court on leave granted to appeal from an order of the Circuit Court affirming a Common Pleas judgment in favor of plaintiff in a garnishment action.
Facts
On May 25, 1975, plaintiff was involved in an automobile accident when her vehicle was struck by a vehicle owned and operated by Augustus Thomas Duncan. At the time of the accident, Mr. Duncan carried automobile insurance with American Fidelity Fire Insurance Company,
Plaintiffs attorney discussed the claim with defendant insurance carrier on several occasions prior to commencement of suit.
On February 16, 1977, plaintiff commenced an action in Common Pleas Court against defendant Duncan and subsequently took a default judgment when defendant Duncan failed to appear. After receiving testimony as to damages, a judgment was entered on June 17, 1977, in favor of plaintiff for $10,000.
On August 31, 1977, plaintiffs attorney mailed a copy of the default judgment to defendant insurance company.
On November 4, 1977, a motion was filed by counsel on behalf of defendant Duncan to set aside the default judgment which motion was denied on November 16, 1977. Subsequently, a motion for rehearing was filed by defendant on March 13, 1978, which was denied on March 28, 1978.
Plaintiff commenced this garnishment action against defendant American Fidelity Fire Insurance Company. Defendant filed a disclosure admitting a policy of insurance was in effect on the date of the accidént but denied liability under the terms of the policy due to alleged failure to receive timely and proper notice of the suit.
The insurance policy in question provides under "CONDITIONS”:
"2. Notice of Claim or Suit — Coverages A and B: If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.”
Following a trial on the merits, judgment was rendered in favor of plaintiff. It is from that judgment that this appeal arises.
Discussion
Lack of notice of suit by an insured to his insurer is no defense to a garnishment seeking recovery of insurance policy proceeds to satisfy a default judgment unless the insurer can show prejudice from the lack of notice of suit. It is incumbent upon the insurer to sustain the burden of proof as to such prejudice. Kennedy v Dashner, 319 Mich 491, 493-494; 30 NW2d 46 (1947), Weller v Cummins, 330 Mich 286, 291-293; 47 NW2d 612 (1951), Wendel v Swanberg, 384 Mich 468, 478; 185 NW2d 348 (1971), Bibb v Dairyland Ins Co, 44 Mich App 440, 443; 205 NW2d 495 (1973), Kermans v Pendleton, 62 Mich App 576, 581; 233 NW2d 658 (1975).
A mere delay in giving the required notice to an insurer under the policy does not work a forfeiture because such provisions are construed to require notice within a reasonable time. Kennedy v Dash-ner, supra, Exo v Detroit Automobile Inter-Ins Exchange, 259 Mich 578; 244 NW 241 (1932).
Prejudice to the insurer is a material element in determining whether notice is reasonably given. Wehner v Foster, 331 Mich 113; 49 NW2d 87 (1951), Weller v Cummins, supra. The question of prejudice is one for the trier of fact. Wendel v Swanberg, supra.
Appellant validly complains that it received no notice of entry of the default judgment until it was too late to file a timely motion to set aside said judgment. However, it is also noted that no motion to set aside the default judgment was filed for more than two months after the insurance company received notice, at which time the trial court denied same on the grounds the motion was untimely, as well as defective. No relief was sought from that determination for four months when a motion for rehearing was filed and denied. No appeal was taken from that determination.
We do not know whether the motion to set aside the default judgment was defendant’s action or action taken on behalf of the defendant upon direction of the insurance carrier. Resolution of that question is not necessary, however, since the insurance carrier either did nothing or did not pursue the same timely or properly after having received notice.
In most instances, the practical effect of a ruling in favor of the insurance carrier in a garnishment action leaves the injured plaintiff with an uncol-lectable judgment, while fairness also dictates that the insurance carrier must not be deprived of an opportunity to protect its interests where it has no notice. Erosion of rights of the insurance carrier adds to the costs of doing business. There exists a delicate balancing of these respective social interests.
Insurance companies are professionals in the arena of litigation. Hence, evolution of the concept that the insurance carrier must show prejudice from the lack of notice of accident or suit before it will not be required to respond.
The insurance carrier will not be permitted to benefit by sitting idly by, knowing of the litigation, and watch its insured become prejudiced. See, Wendel v Swanberg, supra.
To have been deprived of an opportunity to defend, in the case at bar, may or may not have prejudiced the rights of the insurance carrier. We do not know that. If plaintiffs injury did not rise to the threshold level of serious impairment of body function the insurance carrier would have been prejudiced by its lack of an opportunity to defend.
Assuming that to be the case, such prejudice does not become material where the carrier, upon notice, does not act or properly act to protect its interest or that of its insured. Such prejudice was not attributable, in its ultimate sense, to the insured’s failure to give notice of suit, but rather to the insurance carrier’s failure to act upon receiving notice.
In this case, had defendant insurance carrier, upon receiving notice of the entry of the default judgment, interceded promptly and properly on behalf of its insured to set aside the judgment a different situation would exist.
The trial judge, in the case at bar, made determinations of fact on issues of prejudice and notice.
A trial court’s finding of fact will not be set aside unless it is clearly erroneous. GCR 1963, 517.1. A finding is clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with the deninite and firm conviction that a mistake has been committed”. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976), National Car Rental v S & D Leasing, Inc, 89 Mich App 364; 280 NW2d 529 (1979).
From a review of the record, we cannot say the trial court’s findings were clearly erroneous. The trial court is affirmed. | [
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M. J. Kelly, J.
Defendant was originally convicted by a jury of two counts of armed robbery, MCL 750.529; MSA 28.797. He was sentenced by St. Clair County Circuit Judge Halford I. Streeter to concurrent prison terms of from 14 to 40 years on each count. Those sentences subsequently were reduced to concurrent terms of from 10 to 40 years by Judge Streeter upon a motion for resentencing. On appeal, on November 6, 1979, this Court in People v Krist, 93 Mich App 425, 433; 287 NW2d 251 (1979), lv den 407 Mich 963 (1980), upheld one of the armed robbery convictions and reduced the other to unarmed robbery, MCL 750.530; MSA 28.798, and remanded the case for resentencing.
Thereafter, on April 21, 1980, Judge Streeter resentenced defendant on the unarmed robbery conviction to from 10 to 15 years imprisonment, to be served concurrently with defendant’s armed robbery conviction. Defendant appeals as of right from the order of sentence.
Defendant claims that he is entitled to be resen-tenced again because the trial judge failed to exercise his discretion regarding a claimed inaccuracy in defendant’s updated presentence report. We hold that he is not so entitled.
The dissent would apparently opt for a per se rule that a sentencing judge’s failure to respond to claimed inaccuracies in a presentence report will make invalid an otherwise permissible sentence in all cases. We do not view the cases cited in support of this claim as imposing an inflexible resentenc-ing requirement. We believe that the authorities are distinguishable.
In People v Major, 106 Mich App 226; 307 NW2d 451 (1981), defendant plead guilty to one count of drawing a check without having an account, MCL 750.131(a); MSA 28.326(1), and one count of attempting to obtain over $100 by means of false pretenses, MCL 750.92, 750.218; MSA 28.287, 28.415. Thereafter, defendant received a sentence of from 40 months to 5 years imprisonment on the attempted false pretenses charge and from 16 months to 2 years on the no-account check charge. The dispute relevant to this case arose when, prior to sentencing, defense counsel noted the reference in the presentence report to a prior felony allegedly committed in Florida. It was claimed by defendant that the case had actually resulted in an entry upon the record of nolle prosequi. The sentencing court failed to respond to this allegation and a second claim that the report contained inaccurate police reports. The prior felony would be particularly damaging since, without it, the defendant’s present convictions would have been his first felonies.
The Major Court remanded the defendant’s case for resentencing, based upon the view that a sentencing court must "at least acknowledge the allegations of defendant” to properly exercise the discretion attending a sentencing decision. Yet, we do not believe that a sentencing judge’s failure to respond to any and all claimed inaccuracies constitutes error per se requiring reversal. The instant case, unlike Major, does not present a situation in which the claimed inaccuracy, if not resolved, would have a bearing on the defendant’s ultimate sentence. In light of the miniscule potential error which could be incurred by the claimed inaccuracy herein, we would hold that the error, if any, was merely harmless. See also People v Perez, 103 Mich App 636, 638-639; 303 NW2d 49 (1981), remanding for resentencing the defendant’s plea-based conviction, where the disputed report recounted facts constituting the principle offense which differed from those alleged by the prose cutor or defendant. The Perez panel based its remand in part upon its view that "the manner and circumstances under which an offense is committed well may influence the degree of the sentence imposed”. Id., 638. We do not view the purported inaccuracy in this case to be determinative of the sentence as in Perez See also People v Horace Williams, 77 Mich App 402, 405-406; 258 NW2d 737 (1977), remanded 402 Mich 950j (1978).
At sentencing, defense counsel acknowledged that she had reviewed the updated presentence report with defendant, and no claim is made that complete allocution was not permitted. Counsel saw fit to raise only one objection to the contents of the presentence report:
"There is one matter which appears to be inaccurate, an inaccurate statement, which Mr. Krist would like to have clarified for the record, your Honor. Mr. Berro in his report expresses some concern regarding a recent institutional behavior report stating that Mr. Krist had threatened a staff member at Jackson.
"Mr. Krist would like the record to reflect that although he was charged with threatening behavior, that charge was dismissed by the institution and his sentence was one of five days’ detention for insolence only.”
The prosecution did not object to the correction of the record, and, although the trial judge did not expréssly so state, there is no reasonable conclusion to be drawn other than that he accepted the correction proffered by counsel. The fact that defendant received the maximum sentence allowable is completely supported by the record and the circumstances mandating the reduction of both maximum and minimum sentences pursuant to the prior appellate decisions. To hold otherwise would require that any trivial clarification or correction made on a presentence report would mandate elaborate verbal descriptions of obvious mental processes even though the record indicates unanimous implied consent to the correction. This elevates form over substance and creates an unnecessary burden to an already overformalized record-making procedure. To express the proposition is enough to expose its absurdity. Finally, even if error occurred when the sentencing court failed to respond to the proposed correction, the matter could not have affected the eventual sentence.
We believe that defendant’s second contention on appeal, that his sentence was based in part on the lower court’s consideration of a constitutionally infirm, prior conviction, does not require re-sentencing. People v Jankowski, 408 Mich 79; 289 NW2d 674 (1980).
Affirmed.
R. B. Burns, J., concurred.
A mere finding that error was committed does not require our further conclusion that the error required reversal. In People v Wright (On Remand), 99 Mich App 801, 810-811; 298 NW2d 857 (1980), our inquiry for determining whether specified error also constitutes grounds for reversal was summarized:
"The standard for harmless error involves a dual inquiry: (1) was the error so offensive to the maintenance of a sound judicial system as to require reversal, and (2), if not, was the error harmless beyond a reasonable doubt?”
For similar reasons, we also distinguish the contrary holdings in People v Perez, 94 Mich App 759; 289 NW2d 857 (1980), and People v McIntosh, 62 Mich App 422, 440-448; 234 NW2d 157 (1975), rev’d on other grounds 400 Mich 1; 252 NW2d 779 (1977). In Perez, information in the presentence report and in a letter from the Bay County prosecutor’s office to the effect that the defendant had been a major heroin dealer in the Saginaw area for some time likely would have affected any sentence imposed upon the defendant’s guilty plea to delivery of heroin. Similarly, in McIntosh, the claimed inaccuracies, if not cured or discounted, would have portrayed the defendant as a multiple offender, drug addict, and psychologically deficient person. | [
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Mackenzie, P.J.
On December 4, 1979, defendant was convicted at a bench trial of uttering and publishing a forged instrument, MCL 750.249; MSA 28.446. He was sentenced to a term of 4 to 14 years imprisonment and appeals as of right.
Defendant is correct in his assertion that the trial court erred in applying the "scintilla” or "any evidence” test to defendant’s motion for a directed verdict of acquittal. The proper standard, announced by the Michigan Supreme Court shortly before the trial herein in People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), provides:
"In summary, the trial judge when ruling on a motion for a directed verdict of acquittal must consider the evidence presented by the prosecution up to the time the motion is made [People v Garcia, 398 Mich 250; 247 NW2d 547 (1976)], view that evidence in a light most favorable to the prosecution, People v Vail, 393 Mich 460, 463; 227 NW2d 535 (1975), and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt [Jackson v Virginia, 443 US 307, 319; 99 S Ct 2781; 61 L Ed 2d 560 (1979)].”
However, reversal is not required unless the prosecution’s evidence was insufficient to justify a reasonable factfinder in concluding that all of the essential elements of the crime were proven beyond a reasonable doubt. The evidence showed that on May 26, 1979, a man asked June Pitts, an employee of Hasper’s Sav-Mor Market in Musk-egon, to prepare a money order for $200. Ms. Pitts, after getting instructions and approval from her boss, Gary Hasper, prepared the money order and placed it on the counter in front of her. Ms. Pitts testified that the man took the money order and handed her a wad of bills totalling only $160 or $170. She said she returned the money and demanded the money order back. At that point, the man handed her an envelope containing a money order in the amount of $1 which Ms. Pitts said she had prepared earlier that day. When she demanded that the $200 money order be returned, Ms. Pitts said the man said he did not have it. After arguing with her and Mr. Hasper, the man left.
Ms. Pitts had not identified defendant prior to trial. She participated in one photographic showup before defendant was a suspect and tentatively identified the photograph of defendant’s girlfriend’s brother, Terry Jennings. Ms. Pitts first saw defendant sitting with his attorney in a conference room prior to the preliminary examination. Nevertheless, Ms. Pitts positively identified defendant at the preliminary examination and at trial.
Gary Hasper’s testimony essentially corroborated Ms. Pitts’ version of the episode. He said that after the man left the store, he called Consumer’s Money Order Corporation, the issuer of the money order, and stopped payment on it. Mr. Hasper had not participated at any pretrial identification procedures except that he did identify defendant seated at the defense table at the preliminary examination. He was in court when Ms. Pitts identified defendant at the preliminary examination.
Charles Hopkins, proprietor of Mr. Brother Man’s clothing store in the Muskegon Mall, testified that, at approximately 4 p.m. that same day, defendant, who was known personally by Hopkins, and a female companion purchased some merchandise from his store. Defendant’s companion, later identified as Sandra Jennings, extracted a $200 money order from her purse and gave it to defendant who presented it to Hopkins. The money order was payable to "Sandra Jennings, signed Dale Taylor”.
The stolen money order was indorsed by both Jennings and defendant in the presence of Mr. Hopkins. The money order, received as an exhibit, was shown to have the same identification number, 59-573912, as the receipt held by Hasper which was also introduced into evidence. Hopkins testified at trial that defendant told him later that he had received the money order in a short-changing scheme. On cross-examination, Hopkins testified that he had not mentioned the short-changing scheme at the preliminary examination but that he had testified that defendant "said he purchased it on old — the Old White — old U.S. 31, like going to Dalton”.
Sandra Jennings testified that she purchased a suit for defendant from Mr. Brother Man’s on the day in question but denied that the money order was stolen. She said she had received it from Dale Taylor in payment for some stereo components she sold him. Defendant’s testimony substantially corroborated Jennings’ version of the events. He denied going to Hasper’s Save-Mor Market that day and intimated that it was a case of mistaken identity.
In People v Grable, 95 Mich App 20, 24; 289 NW2d 871 (1980), the elements of the crime of uttering and publishing a forged instrument were set forth as follows:
"(1) knowledge on the part of the accused that the instrument was false; (2) an intent to defraud; and (3) presentation of the forged instrument for payment. People v Fudge, 66 Mich App 625, 631; 239 NW2d 686 (1976), People v Kimble, 60 Mich App 690, 694; 233 NW2d 26 (1975).”
The first issue is whether the evidence of identification was sufficient to allow the trier of fact, in this case the circuit judge, to conclude that defendant was guilty of uttering and publishing a forged instrument. We note initially that defense counsel did not request that either Ms. Pitts or Mr. Hasper participate in a pretrial lineup. Although defendant would not have been entitled to a lineup as a matter of right, People v Mann, 89 Mich App 511; 280 NW2d 577 (1979), it was within the trial court’s discretion to grant or deny such a request. Thus, defense counsel must share the responsibility for the loss of any meaningful lineup evidence. See People v Emanuel, 98 Mich App 163, 183; 295 NW2d 875 (1980). Nor did defendant raise the issue of the suggestiveness of the preliminary examination identification procedure by prompt objection or motion to suppress the testimony of Ms. Pitts and Mr. Hasper. See People v Wilson (On Rehearing), 96 Mich App 792, 797; 293 NW2d 710 (1980).
Apparently, defense counsel chose, as a matter of trial strategy, to attack the identification testimony of both witnesses by showing that: (1) neither had participated at a pretrial lineup, (2) Ms. Pitts had tentatively identified the brother of defendant’s girlfriend in a photographic showup, and (3) Mr. Hasper’s testimony was dependent on and tainted by Ms. Pitts’ preliminary examination testimony.
We do not find the initial viewing of defendant by Ms. Pitts nor the preliminary examination identification procedure so unnecessarily suggestive as likely to have resulted in irreparable mistaken identification. Both witnesses testified that they had observed defendant for several minutes at a close distance, through the cashier’s window. Although Ms. Pitts tentatively identified another man as the person who stole the money order, her identification of him was not positive. More importantly, because defendant’s photograph was not in the array, neither Ms. Pitts nor Mr. Hasper ever failed to identify defendant. Additionally, the evidence of defendant’s guilt herein did not depend entirely on the identification testimony of Ms. Pitts and Mr. Hasper. Considering their testimony with the evidence that defendant’s signature appeared on the $200 money order, the number of which matched the receipt from Hasper’s Market, as well as the testimony of Charles Hopkins, there was sufficient evidence to allow the trial judge to conclude that defendant was a participant in the criminal episode and had knowledge that the money order was stolen. Moreover, as the trial court noted, if Hopkins’ testimony is credible, his statements regarding where defendant said he acquired the money order were inconsistent with the claims of defendant and Ms. Jennings that she had acquired it from someone who had purchased her stereo. We cannot say that the trial court’s finding of fact of defendant’s identity as the perpetrator was clearly erroneous. GCR 1963, 517.1.
Defendant also argues that, although the money order may have been stolen and was subject to a "stop payment” order, it was not "false, forged, altered or counterfeit” as required for a conviction under MCL 750.249; MSA 28.446. In State v La-Rue, 5 Wash App 299; 487 P2d 255; 65 ALR3d 1299 (1971), the defendant similarly argued that "the writing of another’s name on a personal money order cannot constitute forgery because the signature in the space designated 'purchaser’s name’ has no effect on the validity of the money order”. Id, 301.
Although the Washington Court of Appeals found that there was authority under the Uniform Commercial Code for defendant’s theory that a personal money order is akin to a bank cashier’s check representing the bank’s direct obligation to pay a holder, the Court chose to rely on the reasoning of the New York Appellate Division that a personal money order is equivalent to a personal check and, thus, capable of being forged:
"However, in a later New York case, the holding of Rose Check Cashing Service, Inc v Chemical Bank NY Trust Co, supra, was rejected. Garden Check Cashing Service, Inc v First Nat’l City Bank, 25 App Div 2d 137; 267 NYS2d 698 (1966). In the ruling, which was affirmed by New York’s highest appellate court [Garden Check Cashing Service, Inc v First Natl City Bank 18 NY2d 941; 277 NYS2d 141; 223 NE2d 566 (1966)], it was held that a personal money order is essentially the equivalent of a personal check. The rationale of the decision is that the drawer (purchaser) of a money order does not purchase the drawee’s (the bank’s) credit. He merely deposits a sum of money with the drawee against which he may draw by written order. This view of the legal nature of a personal money order finds support in the provisions of the Uniform Commercial Code. A personal money order, in all respects, fulfills the definition of a 'draff under the provisions of RCW 62A.3-104.
"A 'check’ is also a 'draff if it is drawn on a bank and payable on demand. RCW 62A.3-104.
"A 'draff is an 'order to pay’ but is not an assignment of funds.
" 'A check or other draft does not of itself operate as an assignment of any funds in the hands of the drawee available for its payment, and the drawee is not liable on the instrument until he accepts it.’
"RCW 62A.3-409CL).
"An inherent right of the drawer of a draft is the right to stop payment before it had been accepted by the drawee. Here the drawer, the Seattle business establishment from which the money order was stolen, had the right to stop payment before the money order was accepted by the drawee, American Express. The purchaser’s magnetic computer processing numbered copy of the money order and American Express’ similar copy would provide the means of identifying the money order which LaRue attempted to cash when it was presented, even though American Express’ copy did not identify the purchaser by name.” Id., 303-304. (Footnotes omitted.)
We find the reasoning in LaRue persuasive and adopt it as applicable to the case at bar. Clearly, the signature of Dale Taylor as the purchaser of the instrument was false or fictitious. Because the evidence supported the trial judge’s finding of fact that defendant stole the money order, the inescapable conclusion is that defendant also knew Dale Taylor’s signature was fictitious or unauthorized and intended to defraud Mr. Hopkins of $200. We find sufficient evidence of each element of the crime, justifying the trial court’s finding of guilt. See People v Hampton, supra.
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Per Curiam.
On July 18, 1978, plaintiff instituted suit against Metropolitan . Life Insurance Company (Metropolitan) and General Motors Cor poration (GM). Plaintiff alleged that he was employed by GM until December, 1975, at which time he became totally disabled and unable to perform his job. By his suit, plaintiff sought benefits under a contract of insurance underwritten by Metropolitan providing benefits to employees of GM upon total disability. Defendants denied plaintiff benefits, stating that he voluntarily quit his job. In their answer, defendants alleged that a medical report dated November 14, 1975, signed by plaintiff’s treating doctor, indicated that he would be able to return to work on November 24, 1975.
On October 11, 1979, defendants jointly moved for summary judgment. While failing to state under which subsection of the summary judgment rule they were seeking relief, the underlying ground for the motion was that plaintiff had failed to exhaust the grievance procedure written into the union contract and that the claim was barred by the statute of limitations.
Plaintiff filed an amended complaint in which he averred that his doctor advised him to inform his employer that he could no longer work because of mental illness. According to this amended complaint, plaintiff was unaware of his rights under the contract because of his mental illness. He further alleged that he could no longer obtain relief by filing a grievance because the period of time within which a claim had to be filed had expired. Both defendants denied these allegations and stood by their motions for summary judgment. On April 17, 1980, GM filed a separate motion for summary judgment on the basis that the court lacked jurisdiction over the dispute.
On April 21, 1980, a hearing on the motions for summary judgment was held in the Bay County Circuit Court. The trial judge granted the motions holding: (1) that plaintiff had to try to resolve the dispute within the grievance procedures under the contract and (2) that plaintiff’s second count, alleged in tort, was really a reallegation of the claim that he was denied benefits under the contract. The trial judge also held that plaintiff was not precluded from filing a grievance because if his mental condition was responsible for the delay in instituting the procedure it would not be barred.
The trial judge apparently relied on both GCR 1963, 117.2(1), failure to state a claim upon which relief can be granted, and GCR 1963, 117.2(3), no genuine issue as to any material fact, in granting the motions. From the trial court’s order of summary judgment, plaintiff appeals as of right.
Plaintiff’s suit is for a breach of the UAW-GM collective bargaining agreement and arises under § 301 of the Labor Management Relations Act. 29 USC 185. As such, the action is controlled by Federal law even though brought in the state courts. Humphrey v Moore, 375 US 335, 343-344; 84 S Ct 363; 11 L Ed 2d 370 (1964), Breish v Ring Screw Works, 397 Mich 586, 593-598; 248 NW2d 526 (1976). The general rule is that an individual employee must first attempt to exhaust contractual grievance procedures before seeking judicial enforcement of rights arising under the contract. Vaca v Sipes, 386 US 171, 184; 87 S Ct 903; 17 L Ed 2d 842 (1966), Pompey v General Motors Corp, 385 Mich 537, 560; 189 NW2d 243 (1971), Ceplin v Bastian-Blessing Division of Golconda Corp, 90 Mich App 527, 529; 282 NW2d 380 (1979).
Plaintiff contends that the motions for summary judgment were improperly granted, arguing that: (1) any attempt to bring a grievance procedure would be futile because the contract required it to be brought within five days of termination of the employment, (2) the second count of the complaint sounds in tort and is not subject to the contractual grievance procedure, and (3) genuine issues of material fact exist. These claims will be discussed seriatim.
Where an employee’s efforts to proceed with contractual remedies would be futile, the exhaustion requirement is inapplicable. Glover v St Louis-S F R Co, 393 US 324, 330; 89 S Ct 548; 21 L Ed 2d 519 (1969). However, as the trial court construed the UAW-GM contract, and we agree with this construction, plaintiff was not obligated to begin the grievance within any specific time period but, rather, had to start the process "without undue delay”. We agree with the trial judge that if plaintiff was mentally ill and unaware of his rights at the time he quit filing a grievance now would not be foreclosed.
We also agree with the trial court that Count II of plaintiffs complaint, charging defendants with "wilfully and intentionally” depriving him of his rights under the contract or negligently failing to maintain records so that certain contractual rights were lost, is a mere reallegation of the Count I contract claim. In Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401, 422; 295 NW2d 50 (1980), the Supreme Court held that conclusory allegations in a complaint which, if proven, would show a bad-faith breach of contract do not support a finding of tortious conduct. None of the conclu-sory allegations of plaintiffs amended complaint, Count II, support anything except a breach of contract claim.
Plaintiff is correct that there are genuine issues of fact to be resolved. The real question in this case, however, is whether these issues of fact are properly heard by the circuit court at this time. See Davis v Kramer Bros Freight Lines, Inc, 373 Mich 594, 597; 130 NW2d 419 (1964). The answer to this question is no because plaintiff has never sought redress of his grievance in accordance with the contract.
The trial court was correct in summarily disposing of this case. However, this summary disposition should have been by way of accelerated judgment pursuant to GCR 1963, 116.1(5). Pompey, supra, 563, Ceplin, supra, 530. However, the error of the trial court is not grounds for reversal. Plaintiff was not prejudiced by the summary dismissal pursuant to the wrong court rule as he was not misled concerning the underlying basis for defendants’ motion. See Gilbert v Grand Trunk WR Co, 95 Mich App 308, 315; 290 NW2d 426 (1980), and cases cited therein.
Affirmed. | [
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N. J. Kaufman, J.
From a judgment in favor of the counterplaintiffs, Gregory Ciaglo and Susan Ciaglo, Katie Fanning, administratrix of the estate of Robert Slaughter, deceased, appeals.
The facts which led to the instant case are as follows.
While on duty on February 9, 1973, Detroit police officer Gregory Ciaglo was shot in the face at close range. Shortly thereafter, Robert Slaughter, a suspect in the shooting, was beaten during his apprehension by other members of the Detroit police force. On February 14, 1973, Slaughter died as a result of injuries received in the beating.
On January 17, 1975, Robert Slaughter’s estate (hereinafter referred to as defendant) brought a wrongful death action, MCL 600.2922; MSA 27A.2922, against the City of Detroit, Gregory Ciaglo and other police officers. The complaint included a demand for a jury trial. On April 18, 1975, Gregory Ciaglo (hereinafter referred to as plaintiff), filed a counterclaim seeking damages for the shooting. Susan Ciaglo, his wife, joined in the counterclaim.
On November 30, 1978, the estate’s motion to dismiss its suit as to officer Ciaglo was granted by the trial court. The trial court also granted the estate’s motion to separate Ciaglo’s counterclaim from the original action. Slaughter’s estate and the remaining defendants entered into a settlement agreement and a judgment for $500,000 was entered in favor of the estate.
Prior to the trial on the counterclaim, the court denied defendant’s request for a jury trial, reasoning that since Ciaglo had been dismissed from the initial suit, the counterclaim had become a separate case requiring a separate jury demand. Because neither party had fulfilled this requirement, the right to trial by jury had been waived. A bench trial ensued, at which Ciaglo was awarded $65,000, plus interest and costs, and his former wife received $4,000, plus interest and costs. Defendant, the estate of the deceased, Robert Slaughter, appeals as of right pursuant to GCR 1963, 806.1.
Of the grounds upon which defendant bases its appeal, we find only one to be meritorious. Defendant claims that when, as a plaintiff, suit was brought against multiple defendants and a jury trial was demanded, such demand applies as well to the trial of a counterclaim by a defendant who has been dismissed from the original suit and whose counterclaim has been severed therefrom. Defendant therefore argues that the jury trial request filed in the original suit preserves the right to jury trial on all issues.
Plaintiff contends that once defendant dismissed its claim against plaintiff Ciaglo in the original suit, the severed counterclaim became a separate suit requiring a new jury demand.
On May 16, 1974, trial was begun on the counterclaim. Defendant, relying on its original demand, asked for a trial by jury. The plaintiffs opposed this request. The trial judge ruled:
"THE COURT: Gentlemen, the issue is whether there should be a jury trial on this matter or not. I have again tried to do some research and I have been unable to find a case that covers this matter completely.
"Now the facts are that the jury demand was properly made at the beginning of the case by Mr. Brown in the case of Fanning against Detroit, Ciaglo and others. Subsequent to that, the case against Mr. Ciaglo was dismissed by consent on December 8th by Judge Baum and the counter-claim was severed to be tried separately. Procedurally I think at that point we were in a position where Ciaglo was no longer a party in any way in the Fanning case. We have a totally separate case in Ciaglo’s, and the procedural posture of the Ciaglo case at that time was that this was a separate lawsuit in which no demand for a jury had been made. The request to separate was made by Mr. Brown, granted by Judge Victor Baum.
"I think, in considering all of these facts as we have it now, that the Estate of Slaughter at that point did not rely upon its original demand for a jury. There is no demand for a jury made by Ciaglo nor was there any demand made in the Ciaglo against Slaughter case by Mr. Brown.”
In fact, there does not seem to be a case directly on point. However, a reading of related Michigan and Federal decisions leads this Court to believe that the original jury demand did entitle defendant to a jury trial on all counterclaims. We further believe that severance of a counterclaim or dismissal of the plaintiff as a defendant in the original suit did not affect this right.
Michigan’s Constitution provides:
"The right of trial by jury shall remain, but shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law.” 1963 Const, art 1, § 14.
The manner prescribed by law is GCR 1963, 508.2, which sets forth both the prerequisites for obtaining a jury and the method by which one is waived. A jury trial must be demanded in writing, after commencement of the action, not later than 30 days after the filing of the answer or a filed reply. If a party has not specified the issues he wishes tried by jury, he shall be deemed to have demanded trial by jury for all issues so triable. GCR 1963, 508.3. Hence, a general demand for a jury trial in the initial proceedings sufficiently entitles a party to a jury trial on all counterclaims. American Standard, Inc v Crane Co, 60 FRD 35, 42 (SD NY, 1973), interpreting FR Civ P 38 (source of GCR 1963, 508), Wolfenden v Burke, 69 Mich App 394; 245 NW2d 61 (1976).
Nor should severance of claims affect the right to have all issues tried by the jury. Kahoun v Metropolitan Life Ins Co, 37 Mich App 511; 195 NW2d 1 (1972). In Kahoun, plaintiff, having filed a timely demand for a jury trial, sued defendant for reimbursement of certain medical expenses allegedly covered by an insurance policy issued by defendant. Defendant filed a counterclaim, alleging fraud in the procurement of the policy. The trial court ruled that plaintiffs complaint involved legal issues while defendant’s counterclaim was an equitable claim. Accordingly, the trial court ordered the issues separated for trial, with only the legal issue to be tried by the jury. On appeal, plaintiff contended that it was error for the trial court to deny a jury trial as to the counterclaim. This Court held that because fraudulent procurement of insurance is provable as a defense in an action at law upon the policy, defendant’s claim should have been tried by the jury. 37 Mich App 511, 514. Though the narrow issue facing the Court in Kahoun was whether the counterclaim sought equitable rather than legal relief, underlying this Court’s decision was the premise that once a plaintiff has filed a timely demand for a jury trial, a defendant’s counterclaim, even though severed, must be tried by a jury unless the counterclaim seeks equitable relief.
Similarly, in the case at bar, we believe that once Slaughter’s estate filed a timely demand for a jury trial of all issues, it preserved the right to a jury trial of all counterclaims, whether they were consolidated or tried separately.
Plaintiffs contend that when the estate "dropped” its action against Ciaglo, the severed counterclaim became a new suit and a new jury demand complying with the requirements of GCR 1963, 508 was required. Plaintiff provides no authority supporting this "new case” approach, nor has this Court found any.
We observe that GCR 1963, 508.4 provides in part:
"A demand for trial by jury as herein provided may not be withdrawn without the consent, expressed in writing or in court, of the parties or their attorneys.”
The waiver provision in the Michigan rule is taken almost verbatim from FR Civ P 38. See Committee Notes to GCR 1963, 508.
In Collins v Government of Virgin Islands, 366 F2d 279 (CA 3, 1966), the Court faced a somewhat similar fact situation. Therein, plaintiff dismissed his action against a defendant who had demanded a jury trial pursuant to FR Civ P 38. The Court held that such dismissal had no effect on a co-defendant’s, or any other party’s, right to a jury trial. Once a jury trial had been demanded, trial by jury was required unless there was written stipulation made in open court consenting to a bench trial. Collins, supra, 286. That case holds that, absent waiver under the court rule, once a general demand for a jury trial on all legal issues is made, the right to a jury trial remains for all parties regardless of any change in their status. Obviously, Collins, supra, is not controlling authority for this Court. However, the reasoning expressed therein does make sense. To hold otherwise might make a party’s right to a jury trial depend on when he dismisses a claim. Under Ciaglo’s approach, if the trial on the counterclaim occurred before the dismissal in the original action, the estate’s right to a jury trial would have remained. To have the right to a jury trial depend on when the dismissal of a claim occurs denigrates the importance of trial by jury.
Foreseeing the possibility of this Court’s resolution of the jury demand question against him, plaintiff next argues that even if defendant was entitled to a jury trial on the counterclaim, this right was waived by defendant, decedent’s estate. In support of this contention, plaintiff maintains that by allowing the trial court to make the disbursement of proceeds under the wrongful death claim, defendant waived the right to a jury consideration of the remaining issues.
Although there is no Michigan case on point, Federal decisions have held that once a demand for a jury trial is made, stipulation to waive determination by jury as to one issue does not waive the right to a jury trial on others. See Rodenbur v Kaufmann, 115 US App DC 360; 320 F2d 679 (1963), Town of Clarksville, Va v United States, 198 F2d 238 (CA 4, 1952). Similarly, waiver of the right to a jury determination of how the funds should be disbursed did not constitute waiver of the right to a jury determination of the remaining issues.
Without offering any facts in support of his contention, plaintiff argues that defendant, by its pretrial conduct, waived the right to a jury trial. Once a demand for a jury trial is filed, a waiver should not be lightly implied. See Boatz v Berg, 51 Mich 8; 16 NW 184 (1883).
We therefore hold that the trial court committed reversible error by refusing to grant defendant’s request for a jury trial. Reversed. Costs to appellant. | [
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Per Curiam.
Robert and Sarah Lowe were married in Washington, D.C., on November 6, 1957. They moved to Michigan in 1961. The parties separated in November, 1975. Sarah estáblished residence in the State of Tennessee in May, 1977, leaving Robert with their four minor children. On September 16, 1977, Robert filed a complaint for divorce in Wayne County Circuit Court. Personal service was made on Sarah in Lexington, Tennessee, on October 5, 1977. Sarah made no attempt to answer the complaint. Default was entered on December 16, 1977, and on October 10, 1978, judgment of divorce was granted on the complaint, granting Robert custody of the four children.
On November 1, 1978, Sarah filed a motion to set aside the judgment on the grounds that she had a valid defense and that the property settlement was unfair. She did not challenge the jurisdiction of the court. The trial judge set aside the judgment of divorce, holding that personal service of the summons and complaint upon defendant outside the State of Michigan without obtaining an order of substituted service did not grant jurisdiction to enter a judgment of divorce. Plaintiff moved for a rehearing, and the motion was denied.
Plainiff contends that the trial court erred in setting aside the judgment of divorce on the ground that it lacked personal jurisdiction over the defendant.
MCL 600.705(7); MSA 27A.705(7) sets forth the minimum contacts for the exercise of limited personal jurisdiction over a nonresident defendant in a divorce action:
"Sec. 705. The existence of any of the following relationships between an individual or his agent and the state shall constitute a sufficient basis of jurisdiction to enable a court of record of this state to exercise limited personal jurisdiction over the individual and to enable the court to render personal judgments against the individual or his representative arising out of an act which creates any of the following relationships:
"(7) Maintaining a domicile in this state while subject to a marital or family relationship which is the basis for the claim of divorce, alimony, separate maintenance, property settlement, child support, or child custody.”
This Court has had one occasion to interpret this new section of the statute in Fitzwater v Fitzwa-ter, 97 Mich App 92; 294 NW2d 249 (1980). In Fitzwater, we held that there were insufficient contacts with this state to modify a child support award because the wife and child moved to Michigan sometime after the divorce in Texas, where the husband remained. This Court explained:
"However, the exercise of in personam jurisdiction over the plaintiff husband also requires a showing that the prescribed relationship between the party and the state makes it constitutionally permissible for the state to extend its judicial power over the party. In order to constitutionally subject a party to a judgment in perso-nam, 'certain minimum contacts’ within the territory of the forum must be shown so that the maintenance of the suit does not 'offend "traditional notions of fair play and substantial justice.” ’ International Shoe Co v Washington, 326 US 310, 316; 66 S Ct 154; 90 L Ed 95; 161 ALR 1057 (1945).” Id., 97.
The undisputed fact is that plaintiff and defendant maintained a domicile in this state while subject to a family relationship, and the court had the requisite limited personal jurisdiction over defendant to grant the default judgment of divorce. As the court had personal jurisdiction over defendant, the remaining issue to be resolved is whether the mode of service of process herein gave defendant adequate notice of this proceeding and an opportunity to be heard consistent with the requirements of due process.
The trial court concluded that MCL 552.9a(3); MSA 25.89(1)(3) mandates service of an order for appearance as a prerequisite to obtaining limited personal jurisdiction over a nonresident defendant in a divorce action despite MCL 600.705(7); MSA 27A.705(7). We cannot agree.
Prior to MCL 600.705(7); MSA 27A.705(7), which became effective April 1, 1975, MCL 552.9a; MSA 25.89(1) was the only statutory provision which set forth the bases for obtaining jurisdiction over defendants in divorce cases:
"Sec. 9a. No decree of divorce shall be granted in any case except when one of the following facts exist;
"(1) The defendant is domiciled in this state at the time the bill of complaint for divorce is filed; or
"(2) The defendant shall have been domiciled in this state when the cause for divorce alleged in the bill or petition arose; or
"(3) The defendant shall have been brought in by publication or shall have been personally served with process in this state, or shall have been personally served with a copy of the order for appearance and publication within this state or elsewhere, or has voluntarily appeared in such action or proceeding. Whenever any such order shall be served outside this state, proof of such service shall be made by the affidavit of the person who shall serve the same, made before a justice of the peace or notary public, and when such affidavit shall be made outside this state it shall have attached thereto the certificate of the clerk of a court of record, certifying to the official character of the justice or notary and the genuineness of his signature to the jurat of the affidavit.”
As both acts have a common purpose, establishing a factual basis for jurisdiction to grant a decree of divorce, they are in pari materia. The two statutes affecting a given person or subject should be read together and given effect if such can be done without contradiction, repugnancy, absurdity, or unreasonableness. People v Harrison, 194 Mich 363, 370-371; 160 NW 623 (1916).
The purpose of the long-arm statute, MCL 600.705(7); MSA 27A.705(7), is to allow limited personal jurisdiction over a defendant who has had sufficient minimum contacts with the state. Section 3 of MCL 552.9a; MSA 25.89(1) requires that when an order for appearance and publication is personally served outside the state, an affidavit of the server and the certificate of the clerk of a court of record is required to obtain jurisdiction. This basis for jurisdiction can exist even though defendant never was domiciled in this state while subject to a marital or family relationship. It is an alternative basis for obtaining jurisdiction; thus, it is complementary to MCL 600.705(7); MSA 27A.705(7).
Although both statutes are in pari materia, they are not in conflict. The two statutory sections are complementary. Therefore, they both must stand and be given effect. The new section was intended by the Legislature to make it easier to obtain jurisdiction and service of process on absent spouses in divorce cases. When jurisdiction is supplied by MCL 600.705(7); MSA 27A.705(7), the divorce action should be treated as any of the other six bases for obtaining limited personal jurisdiction in regard to service of process.
GCR 1963, 105.1 provides for personal service of process on a defendant. GCR 1963, 105.9 clearly states that: "There is no territorial limitation on the range of service of such notice.” Defendant personally was served the summons and a copy of the complaint on October 5, 1977. Defendant had notice and an opportunity to be heard consistent with the requirements of due process. The court had limited personal jurisdiction over the defendant. Therefore, the default judgment properly was entered.
The order vacating the default judgment is reversed, and the judgment of divorce is reinstated. | [
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] |
Bashara, J.
Plaintiff filed suit against defendants alleging medical malpractice. The complaint stated that plaintiffs decedent, Dorothy Ross Brown, entered the defendant Sinai Hospital of Detroit (Sinai) on May 21, 1976. While the decedent was in Sinai, defendant Dr. Go Thiek Siang performed a liver biopsy on her, resulting is massive hemorrhaging. Purportedly due to defendants’ negligence, she died on June 20, 1976.
Sinai filed a motion for accelerated judgment pursuant to GCR 1963, 116.1(2) and 769.1. The motion alleged, and was supported by way of affidavit, that plaintiffs deceased, upon entering the hospital, had signed an agreement to arbitrate all claims arising from the health care received during that admission. It was asserted that the arbitration agreement rendered the circuit court without jurisdiction to consider plaintiffs malpractice claim pursuant to the R. Hood-McNeely-Geake Malpractice Arbitration Act of 1975, MCL 600.5040 et seq.; MSA 27A.5040 et seq. (the Act). Plaintiff appeals the trial court’s order granting accelerated judgment to Sinai and ordering the plaintiff to submit the dispute to arbitration.
Plaintiff presents three issues of first impression to this Court. She claims the Act is unconstitutional on the following bases:
(1) the statute violates plaintiffs due process right to a hearing before a fair and impartial tribunal in that it requires that one of the three arbitration panel members be a physician or hospital administrator;
(2) due to the circumstances surrounding all patients when they are asked to sign the arbitration agreement, the right to judicial process is not knowingly waived, constituting a violation of due process of law; and
(3) the arbitration agreement is a contract of adhesion rendering it unenforceable.
We note that the question of the validity of the underlying agreement is essentially a judicial question. Kaleva-Norman-Dickson School Dist No 6, Counties of Manistee, Lake & Mason v Kaleva-Norman-Dickson School Teachers Ass’n, 393 Mich 583; 227 NW2d 500 (1975). Therefore, defendants’ contention that the trial court was without jurisdiction to consider the validity of the contract lacks merit. See Capman v Harper-Grace Hospital, 96 Mich App 510; 294 NW2d 205 (1980).
The burden of proving an alleged constitutional violation rests on the party asserting it. If the statute can be construed in a manner consistent with the constitution, the party alleging unconstitutionality has failed to meet that burden. Dear-born Twp v Dearborn Twp Clerk, 334 Mich 673; 55 NW2d 201 (1952), Naudzius v Lahr, 253 Mich 216; 234 NW 581 (1931), Ferguson v Skrupa, 372 US 726; 83 S Ct 1028; 10 L Ed 2d 93 (1963). We have carefully reviewed the record, briefs and legal authority and conclude that the Act is constitutional.
I. The Act
The statute was enacted in 1975 as a response to the "medical malpractice crisis”, the high cost of health care due to the increased incidence of medi cal malpractice litigation. Comment, Michigan’s Medical Malpractice Legislation — Prognosis: Curable Defects, 55 U of D J of Urban Law, pp 309-311 (1978). The Act describes the mandatory provisions of agreements to arbitrate disputes over services rendered by a health care provider, §§ 5041, 5042, 5046(2). Neither the patient nor the health care provider is required by law to enter into an agreement to arbitrate disputes. The health care provider may not require a patient to enter into the agreement as a prerequisite to treatment, § 5041(2). However, where the agreement has been properly executed and not revoked by the patient within 60 days, binding arbitration is the only remedy available for settlement of malpractice disputes.
The Act details the procedure to be followed at an informal arbitration hearing, as well as the rules of discovery. §§ 5048-5052. For example, the parties may be represented by counsel, be heard, present evidence and cross-examine witnesses, § 5043(l)(a).
The three-member arbitration panel is selected by the parties from lists compiled by the American Arbitration Association (association), § 5044(3). If the members cannot be selected by mutual agreement, the association makes the selection, subject to challenge for cause by either party, § 5044(5). A procedure is established for screening the arbitrators for bias, § 5045.
A majority of the panel may grant any relief deemed equitable, §§ 5054, 5056. The written opinion accompanying the award must contain findings on enumerated issues, §§ 5054-5056. Appeals from the arbitration award are governed by the general arbitration law and applicable court rules.
II. Composition of the Arbitration Panel
The panel is composed of one lawyer, one lay person and one health care provider. Plaintiff alleges that inclusion of one health care provider on the panel violates her due process right to an impartial tribunal. In support of this argument, the depositions of insurance experts were submitted to the trial court. In summary, the witnesses stated that an increase in the amount of money awarded in malpractice cases will be reflected in higher insurance premiums for all health care providers in the state. Plaintiff asserts, based upon this testimony, that a physician or hospital administrator who sits on the arbitration panel is necessarily biased due to the direct pecuniary interest he possesses in purchasing malpractice insurance.
Several circuit courts of this state have considered the issue, the majority of which have concluded that the plaintiffs failed to submit clear, plain proof of bias. Cf., Malek v Jayakar (Wayne County, Civil Action No. 78-802-604-NM), Yager v Locke (Lenawee County, No. 79-07-627-NM), Lorenz v Mendelsohn (Oakland County, No. 79-187-555-NM), Chaston v Stubbs (Washtenaw County, No. 80-18656-NM), Pipper v DiMusto (Macomb County, No. 76-8188-NM). But see Taylor v Detroit Bank & Trust Co (Macomb County, No. 77-1906- NM), Manuel v Pierce (Wayne County, No. 79-929209-NM).
Plaintiff cites Crampton v Dep’t of State, 395 Mich 347; 235 NW2d 352 (1975), in support of her position. Plaintiff in Crampton challenged the constitutionality of a statute which established a license appeal board for review of driver license revocations. It was alleged that the board was biased since it was composed of a Lansing police officer and representatives of both the Attorney General and Secretary of State offices. The Court held that it is impermissible for the police and attorney general officials to act as adjudicators in law enforcement disputes because their very purpose is to arrest and prosecute law violators. The Court noted that "the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable”. Id., 356.
Since the purpose of medicine is not to defend against malpractice claims, the relationship between the health care provider who is selected as arbitrator and the plaintiff bringing the claim is not analogous to the scenario of Crampton. However, the Crampton opinion is helpful in that it recognizes the situations in which the United States Supreme Court has found the probability of bias constitutionally intolerable. The risk may be present where the decisionmaker:
"(1) has a pecuniary interest in the outcome;
"(2) 'has been the target of personal abuse or criticism from the party before him’;
"(3) is 'enmeshed in [other] matters involving petitioner * * or
"(4) might have prejudged the case because of prior participation as an accuser, investigator, fact finder or initial decisionmaker.” Id., 351. (Footnotes omitted.)
Plaintiff bases her claim of bias on the allegation that the health care panel member has a pecuniary interest in the outcome of medical malpractice litigation. She relies heavily on Ward v Village of Monroeville, 409 US 57, 59-61; 93 S Ct 80; 34 L Ed 2d 267 (1972). In Ohio, mayors were permitted by statute to sit as judges in local ordinance violation trials. The evidence presented established that the defendant Village of Monroe-ville was substantially supported by fines imposed in the mayor’s court. In holding the statute unconstitutional, the United States Supreme Court stated:
"[T]he test is whether the mayor’s situation is one 'which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused * * *.’ * * * Plainly that 'possible temptation’ may also exist when the mayor’s executive responsibilities for village finances may make him partisan to maintain the high level of contribution from the mayor’s court. This, too, is a 'situation in which an official occupies two practically and seriously inconsistent positions, one partisan and the other judicial, [and] necessarily involves a lack of due process of law in the trial of defendants charged with crimes before him.’ ” Id., 60.
The statute under scrutiny in Ward and the Act are not comparable. The Act allows the parties to agree to waive the right to a jury trial and submit a civil dispute to binding arbitration. No criminal rights are involved. The parties select the panel members, who must withstand screening for bias. MCL 600.5044, 600.5045; MSA 27 A.5044, 27 A.5045. No individual panel member is faced with the dilemma of conflicting official positions, as was the mayor of Monroeville.
Furthermore, the evidence in Ward shows a direct pecuniary interest of the mayor in levying higher fines. The evidence in the case at bar is not conclusive; there has been no showing that health care providers will receive lower insurance premiums as the direct result of the arbitration process. Therefore, we find Ward to be factually distinguishable from the case at hand.
Courts in other jurisdictions have also considered this claim within their respective statutory schemes. In State ex rel Strykowski v Wilkie, 81 Wis 2d 491; 261 NW2d 434 (1978), the Wisconsin Supreme Court held that the mediation statute, which required submission of malpractice issues to a mediation panel prior to trial, met the requirements of due process although two of the five panel members were health care providers. The Court held:
"The petitioners argue that panel members who are health care providers are financially interested in panel decisions because they, along with all other health care providers in the state, pay annual assessments to maintain the patients’ compensation fund. However, any financial interest inherent in the structure of Chapter 655, Stats, is too remote and speculative to require disqualification. Absent evidence to the contrary, adjudicators must be presumed to be persons of honesty and integrity. See Withrow v Larkin, 421 US 35, 47; 95 S Ct 1456; 43 L Ed 2d 712 (1975).
"Petitioners’ claim is not one of actual bias. There is no suggestion that any panel member bears them ill will or has a financial stake in their particular claims. It may be assumed that if such actual bias were alleged and demonstrated, panel members would be subject to the common-law duty of disqualification. See Kachian v Optometry Examining Board, supra, [44 Wis 2d] at 12, 13 [170 NW2d 743]. Because there is no indication of actual bias, and because the statutory procedure for the selection of the panel does not suggest a probability of systematic bias or prejudice, the requirements of due process are satisfied. Cf., Naus v Jt SD No 1 Sheboygan Falls, 76 Wis 2d 104, 114; 250 NW2d 725 (1977).” Id., 515-516. (Footnote omitted.)
An additional consideration noted by the Court was the fact that the screening panels are required to consider highly technical medical issues. Elimination of the health care expert from the panel would "emasculate” the review process. Id., 517. Parker v Children’s Hospital of Philadelphia, 483 Pa 106; 394 A2d 932 (1978), and Johnson v St Vincent Hospital, Inc, — Ind —; 404 NE2d 585 (1980), have reached the same conclusion as the Strykowski Court. Also see Woods v Holy Cross Hospital, 591 F2d 1164, 1177, fn 21 (CA 5, 1979).
We recognize that the decisions rejecting plaintiffs claim of bias are distinguishable from the case at bar since the statutory schemes in our sister states require only that the parties submit to mediation, the results of which are fully admissible at trial. The arbitration envisioned in the Act, although binding in result, is voluntary. Therefore, the distinction is of little consequence, neither statutory method requiring nonvoluntary relinquishment of the right to a trial.
We hold plaintiff has failed to submit clear proof that the statute is in violation of due process. The Act requires that only one of three arbitrators be a member of the health care community. Another member of the panel must be an attorney. The third member is chosen from the general public. A result may only be reached by a majority of the tribunal. No one member of the panel can be presumed to direct the outcome.
The safeguards within the statute to insure impartiality cure any possibility that an irate health care provider will serve on the panel. In addition, GCR 1963, 769.9(1)(b) provides that an arbitration award shall be vacated by the court where there is evidence of partiality by an arbitrator. Panel members are presumed to be persons of honesty and integrity. Parker, supra, 130. We find no evidence in the record that all physicians disfavor equitable results in malpractice cases.
Furthermore, there has been no evidence indicating that the amount of malpractice awards or the cost of malpractice has decreased since the Act took effect. In addition, the nexus between the size and frequency of the awards and malpractice insurance premiums is too remote in view of the fact that several other criteria are considered in setting rates.
Finally, we are in agreement with the Wisconsin Court that the inclusion of an expert on the panel is desirous in view of the highly technical nature of the proceedings. Strykowski, supra, 516.
III. Knowledgeable Waiver of Constitutional Rights
Plaintiff asks this Court to presume that her decedent was unable to understand the ramifica tions of signing the arbitration agreement. Based upon that assumption, we are asked to hold the statute unconstitutional as forcing patients to relinquish unknown rights. Plaintiff does not argue that the form signed by her decedent was contrary to the statute. Rather, it is the statute itself which is under scrutiny.
Plaintiff asserts that many aspects of the statute are not revealed to the patient when the agreement is signed. For example, she complains that her decedent was not informed that informal rules of evidence are followed at arbitration proceedings. This provision, as well as the remaining procedural steps outlined in the statute which are not expressed in the form agreement, does not result in relinquishment of a constitutional right.
It must be emphasized that plaintiff is not challenging the arbitration procedure established in the statute as lacking minimal due process standards. Her only argument pertinent to this issue is that the procedure is not detailed in full in the agreement.
The only constitutional right which the plaintiff’s decedent relinquished by signing the agreement is the right to a trial before a court of law, Const 1963, art 1, § 14. The form which plaintiff’s decedent signed states:
"I understand that Michigan Law gives me the choice of trial by judge or jury or of arbitration. I understand that arbitration is a procedure by which a panel that is either mutually agreed upon or appointed decides the dispute rather than a judge or jury. I freely choose arbitration, and I agree that a judgment of any circuit court may be rendered upon any award or determination made pursuant to this agreement. I also understand that any arbitration will be conducted in accordance with Michigan Law and the Michigan Medical Arbitration Rules, as approved by the Commissioner of Insurance.”
Plaintiff presents no evidence that her decedent was induced to sign this agreement by fraud or that she was unable to understand it. We believe that the above language is plain and that, by signing the contract, plaintiff’s decedent knowingly relinquished her right to trial. This being the only constitutional right waived by entering into the agreement, we find no support for plaintiff’s allegation of nonconsensual waiver of a constitutional right.
IV. The ’’Adhesion” Contract
Plaintiff finally contests the validity of the agreement as being a contract of adhesion. Plaintiff relies upon Wheeler v St Joseph Hospital, 63 Cal App 3d 345; 133 Cal Rptr 775; 84 ALR3d 343 (1976), which defines adhesion contract as follows:
"The term 'adhesion contract’ refers to standardized contract forms offered to consumers of goods and services on essentially a 'take it or leave it’ basis without affording the consumer a realistic opportunity to bargain and under such conditions that the consumer cannot obtain the desired product or services except by acquiescing in the form contract. * * * The distinctive feature of a contract of adhesion is that the weaker party has no realistic choice as to its terms.” Id., 356.
A finding that the contract is one of adhesion is only the first step in rendering it unenforceable. It must also be determined that "the terms of which the adherent was unaware are béyond the reasonable expectations of an ordinary person or are oppressive or unconscionable”. Id., 357.
This Court has recognized the obvious principle that in order for contracts to be enforceable, they must be entered into freely. In Allen v Michigan Bell Telephone Co, 18 Mich App 632; 171 NW2d 689 (1969), the same two-tiered test was succinctly stated:
"(1) What is the relative bargaining power of the parties, their relative economic strength, the alternative sources of supply, in a word, what are their options?; (2) Is the challenged term substantively reasonable?” Id., 637.
The parties in Wheeler, supra, entered into a private contract to arbitrate medical malpractice disputes. No medical malpractice arbitration statute was involved. The agreement was unobtrusively inserted into the middle of a document entitled, "Conditions of Admission”. There was no evidence that plaintiff was required to agree to the arbitration provision as a condition precedent to admission. The Court held that the agreement was an adhesion contract, noting:
"The admission room of a hospital contains no bargaining table where, as in a private business transaction, the parties can debate the terms of their contract.” Wheeler, supra, 357.
The Court instructed health care providers to call the arbitration agreement to the patients5 attention and give them a reasonable explanation of all options available. The Court stated:
"The hospital’s admission clerk need only direct the patient’s attention to the arbitration provision, request him to read it, and give him a simple explanation of its purpose and effect, including the available options.” Wheeler, supra, 361. (Footnote omitted.)
It must be recognized, in applying Wheeler and Allen to the case at bar, that plaintiff is not asserting an inducement to sign the agreement by fraud, duress, or corruption. Certainly, these contract defenses remain available to patients on a case-by-case basis. GCR 1963, 769.9(1), MCL 600.5001; MSA 27A.5001. Cf., Capman v Harper-Grace Hospital, supra, 515.
Rather, plaintiff claims that the standardized form is always an adhesion contract due to the certain bargaining advantage the hospital or doctor has over the patient. We disagree.
The form clearly states that the agreement to arbitrate is not a prerequisite to care. Furthermore, the patient is given 60 days after execution in which to revoke the agreement, thereby alleviating the possibility of coerciveness in the admission room found in Wheeler. The patient has a realistic and fully informed choice based upon the form and the booklet presented.
Even if it can be said that the patient feels obligated to sign the agreement in order to receive the best health care possible, we believe that the terms of the agreement are within the reasonable expectation of the patient. Finally, we find no evidence of unfair advantage being given to the defendants in the Act.
In summary, plaintiff has failed to sustain the burden of proving by clear evidence that the arbitration agreement, which conforms to the mandates of the Act, is a contract of adhesion and beyond the reasonable expectation of the parties.
We conclude, therefore, that the Act is not unconstitutional. The judgment of the trial court is affirmed. The stay of proceeding is removed and the matter is remanded for arbitration in accordance with the terms of the agreement.
No costs, the constitutionality of a statute being at issue.
The matter has been stayed by the trial court and American Arbitration Association pending the outcome of this appeal.
"An arbitration under this chapter shall be heard by a panel of 3 arbitrators. One shall be an attorney who shall be the chairperson and shall have jurisdiction over prehearing procedures, 1 shall be a physician, preferably but not necessarily from the respondent’s medical specialty, and the third shall be a person who is neither a doctor, lawyer, or representative of a hospital or insurance company. Where a case involves a hospital only, a hospital administrator may be substituted for a physician.” MCL 600.5044(2); MSA 27A.5044(2).
The standard form which plaintiff signed reads as follows:
"I understand that this hospital and I by signing this document agree to arbitrate any claims or disputes (except for disputes over charges for services rendered) which may arise in the future out of or in connection with the health care rendered to me during this hospital stay and/or emergency room visit by this hospital, its employees and those of its independent staff doctors and consultants who have agreed to arbitrate.
"I understand that Michigan Law gives me the choice of trial by judge or jury or of arbitration. I understand that arbitration is a procedure by which a panel that is either mutually agreed upon or appointed decides the dispute rather than a judge or jury. I freely choose arbitration, and I agree that a judgment of any circuit court may be rendered upon any award or determination made pursuant to this agreement. I also understand that any arbitration will be conducted in accordance with Michigan Law and the Michigan Medical Arbitration Rules, as approved by the Commissioner of Insurance.
"I understand that this agreement to arbitrate is binding on me and all my agents, representatives and heirs and assigns, as well as on this hospital, its employees and those of its independent staff doctors, and consultants who have agreed to arbitrate.
"I certify that I have read this agreement or have had it read to me and that I fully understand its content and execute this agreement of my own free will. I have received a complete copy of the booklet which explains this agreement.
"THIS AGREEMENT TO ARBITRATE IS NOT A PREREQUISITE TO HEALTH CARE OR TREATMENT, AND MAY BE REVOKED WITHIN 60 DAYS AFTER DISCHARGE BY NOTIFICATION IN WRITING TO:__ 'Vs/_ /s/_
"INSTRUCTIONS FOR USE:
"Give Booklet with proposed agreement to patient; if agreement is signed, place duplicate original in patient’s file.
"Emergency Room: Do not present for patient signature until after emergency care has been completed.
"FOR FURTHER INFORMATION CONTACT: American Arbitration Association, City National Bank Building, No. 1035, Detroit, Michigan, 48226, Phone: 1 (800) 482-0662.”
It is not disputed that the above form meets the requirements of the statute, §§ 5041, 5042 and 5046(2).
" 'Health care provider’ means a person, partnership, or corporation lawfully engaged in the practice of medicine, surgery, dentistry, podiatry, optometry, chiropractic, nursing, or a person dispensing drugs or medicines.” MCL 600.5040(2)(b); MSA 27A.5040(2)(b). As used in this opinion, the term "health care provider” includes hospitals. See MCL 600.5040(2)(c); MSA 27A.5040(2)(c).
See footnote 2, supra.
MCL 600.5001 et seq.; MSA 27A.5001 et seq., GCR 1963, 769.
The trial court adopted Judge Gilmore’s opinion in Malek, supra, in ruling in defendant’s favor.
"The difference between screening and arbitration is significant. Screening panels make only advisory recommendations; there is no final determination regarding liability or damages. Any figure suggested is solely for the purpose of aiding the parties in reaching a settlement. There is no waiver of the right to a court or jury trial. Binding arbitration, on the other hand, 'is a complete substitute for an action at law.’ Submission of a dispute to binding arbitration severely limits the right to appeal. Awards are final and res judicata in most jurisdictions.” 55 U of D J of Urban Law, pp 309, 314-315, supra. (Footnotes omitted.)
The Act orders the Legislature to form a joint committee for the purpose of reviewing the operation and experience of the Act. § 5065. Although the provision requires that a report be made by the committee before September 1, 1979, no evidence of such a document has been submitted to this Court for review.
See footnote 3, supra.
Plaintiff points to the following requirements of the statute which the standard agreement did not detail:
(1) If the panel members cannot be agreed upon by the parties, the association makes the selection, subject to challenge for cause;
(2) Authoritative treatises may be submitted into evidence;
(3) One panel member must be a health care provider (This information is included in the booklet but not in the agreement);
(4) The scope of review is less broad in arbitration appeals than in civil appeals. | [
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Per Curiam.
Defendant appeals as of right from an order of the Wayne County Circuit Court granting summary judgment for plaintiff in the amount of $20,000, the policy limit of uninsured motorist benefits under an insurance contract between plaintiff and defendant.
In order to clarify our disposition of the issues raised by defendant in its appeal, a recitation of the facts leading to the trial court’s grant of summary judgment is in order.
On February 19, 1972, plaintiff was involved in a collision with an uninsured motorist. As of that date, plaintiff was insured under a policy issued by defendant which provided for uninsured motorist benefits with policy limits of $20,000. The policy provided under section 4, coverage G as follows:
"Subject to the limits of liability stated in this coverage, the Exchange agrees to pay:
"Part (1) all sums which the insured shall be legally entitled to recover as damages * * * from the owner or operator of an uninsured automobile because of bodily injury * * * resulting therefrom, sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile
On September 23, 1974, plaintiff filed suit in Wayne County Circuit Court against the owner, Elmer Hereim, and driver, Ronald Hereim, of the uninsured vehicle, alleging that the car owner was uninsured at the time of the accident and seeking recovery of her damages from the Motor Vehicle Accident Claims Fund.
On March 9, 1976, plaintiff gave defendant DAIIE formal notice of the aforementioned automobile accident and filed a claim for benefits under the uninsured motorist coverage of an insurance policy issued by defendant. Sometime thereafter, Mr. Robert Wisok, attorney for the plaintiff, notified defendant that he had been retained to represent plaintiff in the matter of her claim for benefits. Defendant made a settlement offer of $2,000, which was neither accepted nor rejected by plaintiff. No further efforts to negotiate plaintiff’s claim were made until June 7, 1978, more than six years after the date of the accident, at which time plaintiff sent defendant a letter demanding that the matter be submitted to arbitration in accordance with the terms of the insurance policy. Defendant denied arbitration and alleged that the statute of limitations had run on plaintiff’s claim.
On February 1, 1979, plaintiff, after trial by jury, was awarded judgment in the amount of $63,664.50, including interest and costs, in the Wayne County Circuit Court action against Elmer Hereim. On February 28, 1979, plaintiff filed her complaint in the instant action against defendant, alleging breach of contract based on defendant’s refusal to arbitrate the insurance claim and seeking judgment for the policy limits of $20,000. Defendant answered, denying any breach of contract and raising as an affirmative defense the statute of limitations.
Plaintiff filed a motion for summary judgment, asserting that defendant’s refusal to arbitrate constituted breach of contract as a matter of law. In response, defendant filed a motion for accelerated judgment on grounds that plaintiff’s action was barred by the statute of limitations. On July 27, 1979, a ruling was made in Wayne County Circuit Court holding that plaintiffs claim accrued in June of 1978, when defendant refused arbitration, and that the statute of limitations did not begin to run until that time. The trial court requested briefs on the further question of whether defendant had waived its right to arbitration.
On October 12, 1979, the trial court ruled that defendant had indeed waived its right to arbitration. On January 25, 1980, the parties appeared once more before the trial court on plaintiffs motion for entry of summary judgment. The defendant objected to the summary judgment on the grounds that there existed genuine issues of material fact, namely whether plaintiff was entitled to benefits under the contract, the amount of damages, and the validity of defenses other than the statute of limitations. The trial court overruled defendant’s objections and entered judgment for plaintiff in the amount of $20,000 plus costs.
Defendant now brings this appeal in which it raises three issues, which we shall address seria-tim.
Defendant first argues that where plaintiff is involved in an accident with an uninsured motorist and notifies defendant insurance company four years later, demanding arbitration to the contract of insurance six years after said accident, and defendant refuses to submit to arbitration, such refusal is proper, plaintiffs cause of action against its insurer having accrued at the time of the accident and thus being barred by the statute of limitations. Plaintiff argues that its cause of action accrued at the time of defendant’s refusal to submit to arbitration, that being defendant’s first refusal to abide by the terms of the contract.
There is no question that the applicable statute of limitations is the six-year contract provision, MCL 600.5807; MSA 27A.5807, as established by the case of Detroit Automobile Inter-Ins Exchange v Hafendorfer, 38 Mich App 709; 197 NW2d 155 (1972). The question of when a cause of action accrues is, however, the subject of conflicting opinion. Schimmer v Wolverine Ins Co, 54 Mich App 291; 220 NW2d 772 (1974), holds that plaintiffs cause of action under an insurance policy against the insurer accrues on the date of breach, which in turn is the day on which performance is refused. This case conforms with the cases standing for the general contract principle that a cause of action accrues when a breach of contract occurs.
The narrow question in the instant case seems to have been decided contra in McGuire v Continental Ins Co, 39 Mich App 612; 197 NW2d 846 (1972), where it was held that the cause of action against a plaintiffs insurer accrued on the date of the loss. A later case, Traverse City State Bank v Ranger Ins Co, 72 Mich App 150; 249 NW2d 333 (1976), explained the result in McGuire as being based on the contract language of the insurance policy in McGuire and not on a general principle of law that causes of action under insurance policies "accrue” on the date of the loss. Traverse City Bank held that the parties could determine when a cause of action would accrue, and the decision in that case was based on the contract language. Judge Hoehn concurred, but found no inconsistency between Traverse City Bank and Schimmer. Judge Bashara dissented, reasoning that Schim-mer was applicable and that plaintiff’s cause of action arose when the breach occurred, which was when the insurance company notified plaintiff that it considered plaintiffs claim to be without merit.
We find Judge Bashara’s dissent in Traverse City Bank to be the better reasoned view of that case. The majority opinion decided that because the contract language stated that no cause of action could lie against the insurer until 30 days after proof of loss is filed, that a cause of action would necessarily lie after that 30-day period had expired. The Court reasoned that, since that was the first day on which a cause of action could be brought, that was the date on which the statute of limitations began to run.
Fortunately, an application of the reasoning in both opinions yields the same result in the instant case. There is no dispute that the statute begins to run when the cause of action accrues. In the instant case, the contractual language states that a demand for arbitration of a claim for uninsured motorist benefits was a condition precedent to plaintiffs right to suit. Therefore, a cause of action could not lie until after such a demand was made. As in Traverse City Bank, the parties determined by contract when a cause of action would accrue.
In summary, the trial court ruled correctly that plaintiffs claim was not barred by the statute of limitations. Plaintiffs cause of action against defendant is for breach of contract. A cause of action for breach of contract accrues when a contracting party fails to do what he is obligated to do under the contract. In the instant case, defendant’s refusal to submit to arbitration was the first point at which defendant could be considered to have breached the contract. Since plaintiff filed her action for breach of contract within six years of the breach, and defendant relies on the six-year general statute of limitations on contract actions, plaintiffs claim is not barred.
Defendant next claims that the trial court erred in holding that defendant waived its right to arbitration by refusing plaintiff’s demand to submit the claim to arbitration. We find defendant’s argument to be without merit. Where arbitration is a condition precedent to plaintiff’s cause of action against an insurer, but the insurer refuses to submit to arbitration under a claim of right, the insurer has waived arbitration as a matter of law. Bielski v Wolverine Ins Co, 379 Mich 280; 150 NW2d 788 (1967), Kelley v Citizens Mutual Ins Co, 19 Mich App 177; 172 NW2d 537 (1969), lv den 383 Mich 785 (1970).
Defendant’s final claim on appeal is that the trial court erred in granting plaintiff’s motion for summary judgment because genuine issues of material fact still remained. Defendant contends that it was not collaterally estopped from relitigating the issues of liability and the amount of damages. An examination of the opposing affidavits on plaintiff’s motion for summary judgment indicates that the only issues raised in the instant case were whether plaintiff’s action was barred by the statute of limitations and whether defendant waived its rights to arbitration by refusing to submit to arbitration. Both issues were resolved against defendant as a matter of law.
A motion for summary judgment under GCR 1963, 117.2(3) is designed to test whether there is factual support for a claim. The court must consider the pleadings, affidavits, and other documentary evidence available to it, and must be satisfied that the claim or defense asserted cannot be supported by any evidence at trial before summary judgment may be granted. The motion has the limited function of determining that no issue of fact exists, Sullivan v The Thomas Organization, PC, 88 Mich App 77; 276 NW2d 522 (1979).
Although the issue of damages was not part of the pleadings, affidavits, or documentary evidence before the circuit court, we nevertheless agree with defendant DAIIE that this matter has not been adequately resolved as to it. We analogize to a recent case, American Central Corp v Stevens Van Lines, Inc, 103 Mich App 507, 513; 303 NW2d 234 (1981), which arose in the context of a default judgment. There, the Court held that
"not having admitted unliquidated damages, it seems apparent that the defaulted party should be permitted to participate in any proceedings under GCR 1963, 520.2(2) whereby the damages are assessed. The amount of the damages is still 'at issue’. While the defaulted party can in nowise challenge his liability in this proceeding, he should be permitted to participate in the hearing to determine the unliquidated damages. Allowing a defaulted defendant to contest the amount of the damages at a jury hearing does not render the entry of default void, for liability is still admitted, but rather better enables a jury to ascertain the truth in assessing damages.”
Similarly, in the instant case, defendant’s liability to plaintiff under the contract of insurance is. clear. However, the amount of damages owing may be different than the amount assessed at the trial against the uninsured motorist. We believe that defendant’s failure to plead this issue should not be conclusive as to this matter. "This Court will construe the court rules so as to provide for the meritorious disposition of cases.” American Central Corp, supra, 513.
While affirming the circuit court’s grant of summary judgment on the issues raised, we remand this case for a determination of the amount of damages owed to plaintiff by defendant DAIIE.
Affirmed in part; remanded in accordance with this opinion. No costs, neither party having prevailed in full. We do not retain jurisdiction. | [
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Danhof, C.J.
Defendants United Construction, Inc., and Mancini Construction, Inc., a joint venture (United/Mancini), appeal as of right from the November 5, 1985, opinion and order of the Wayne Circuit Court in this construction contract case.
We agree with United/Mancini that the circuit court erroneously interpreted the comprehensive general liability insurance policy between United/ Mancini and its insurer, Admiral Insurance Company, third-party defendant. We reverse the opinion and order with respect to the circuit court’s decision on the issue of insurance coverage provided by Admiral and remand for further proceedings consistent with this opinion.
This case enjoys a lengthy procedural history, a description of which is necessary to an informed understanding of the legal issues.
This appeal arises out of the consolidation of two lawsuits filed in the circuit court as a result of construction contracts which the Southgate-Wyandotte Relief Drain’s Drainage District (drainage board) awarded to two contractors for the construction of part of a sewer system. This construction involved some tunnel work. The drainage board awarded contract No. 3 to United/Mancini, and awarded contracts No. 5 and No. 7 to DiMambro-Northend Associates, the principal plaintiff in both lawsuits. The work of each contractor was to be independent and separate from that of the other contractors until such time as "activation” occurred, at which time the system would be completed.
On July 18, 1977, a fire occurred in the tunnel worked on by United/Mancini under contract No. 3. The circuit court ultimately found that the fire was a result of United/Mancini’s negligence. The fire caused physical damage to the tunnel and to property of United/Mancini only. However, the fire caused a delay in the completion of work by DiMambro, the contractor responsible for the tunnel portion adjacent to that of United/Mancini.
After the fire, United/Mancini petitioned the drainage board for an extension of time within which to complete their work. On May 17, 1978, the drainage board agreed to an extension until June 23, 1979, subject to an agreement by United/ Mancini to indemnify the drainage board against any damage claim or any claim for additional compensation by other contractors due to the delay caused by the fire and the extension of time.
On July 9, 1980, the first of two lawsuits (Case i) was filed by DiMambro against United/Mancini. The complaint alleged that DiMambro had completed its work under the contract with the drainage board in November of 1977 but that DiMambro could not "connect up” and end the project because of the fire and resultant delay. The complaint sought "delay damages” including lost profits, increased labor costs, overhead costs and the like. The complaint alleged liability under the theories of negligence, tortious interference with DiMambro’s contractual relationship with the drainage board, and a theory that DiMambro was a third-party beneficiary to the contract between the drainage board and United/Mancini, which contract United/Mancini breached.
United/Mancini had obtained insurance from several carriers to cover its risk of liability for a policy period beginning July 1, 1976, to August 1, 1977. The Hartford Insurance Company was the primary insurer. The Hartford insurance policy provided two types of coverage: comprehensive general liability coverage up to $100,000 and comprehensive contractual liability coverage with a different dollar limit. Canadian Universal Insurance Company wrote insurance in "following form” above the Hartford limits to a limit of $500,000. Admiral, providing the third layer of insurance coverage, also wrote insurance in "following form” for the excess of the Canadian coverage. These insurance carriers, through their agent, certified to the drainage board that they had written the general liability and contractual liability insurance coverages in accordance with the tunnel contract bidding documents.
Shortly after Case i was filed, United/Mancini impleaded Admiral as third-party defendant. In turn, Admiral impleaded Hartford and Canadian as fourth-party defendants. United/Mancini believed that Admiral should defend and indemnify it in Case i. Admiral claimed that the policy limits of the other carriers had not yet been exhausted and that they should be held liable first in the event of a judgment. At the time Case i was filed, the general liability limits of both the Hartford and Canadian policies had been exhausted. The contractual liability limits of Hartford’s policy were untouched, as were the limits of Admiral’s policy.
On November 20, 1980, DiMambro filed Case n in the Wayne Circuit Court. The complaint alleged breach of contract against the drainage board. Thereafter the drainage board filed a third-party complaint against United/Mancini on an indemnity theory, relying upon the earlier agreement of United/Mancini to indemnify the drainage board in return for an extension of time.
United/Mancini then impleaded all three insurance carriers into Case n, claiming that one or all of them should defend and indemnify United/Mancini in Case ii. DiMambro’s complaint in Case n essentially sought extra compensation. It is undisputed that the failure of DiMambro to complete performance was not the fault of DiMambro, but was the direct result of the fire and the extension of time granted to United/Mancini by the drainage board.
On June 1, 1982, the circuit court consolidated the two lawsuits for trial. It divided the consolidated lawsuits into phases for purposes of trial. In phase one, the circuit court was to determine liability, i.e., whether DiMambro was entitled to delay damages and additional compensation. In phase two, the court was to decide the amount of damages sustained by the parties, and in phase three, the court was to decide the issue of insurance coverage, i.e., the duties of the three insurers. Each phase was conducted as a bench trial before the Honorable Circuit Judge Richard C. Kaufman.
In phase one, the circuit court determined that the fire was the result of United/Mancini’s negligence. Further, the circuit court determined that recovery was warranted on the negligence theory, on the third-party beneficiary theory, and on the theory that the drainage board breached its contract.
In phase two, the circuit court awarded money damages of $38,836.87 to DiMambro. The damage award reflected a ten percent increase in labor costs, increased costs for demobilization and remobilization of DiMambro’s work force, overhead, profit, interest, labor costs and lost profits. The circuit court declined to award damages for the loss of the use of DiMambro’s trucks during the delay. The circuit court’s decision concerning liability and damages was reduced to judgment and entered on June 1, 1984.
United/Mancini subsequently filed a motion supplementary to judgment asking the circuit court to decide which insurance carrier was responsible for paying the judgment awarded to DiMambro. In an order of October 1, 1984, entitled "Declaratory Judgment re: Insurance Coverage,” the circuit court decided that Admiral had no obligation to pay the judgment previously entered in DiMambro’s favor and against United/Mancini.
After United/Mancini filed a motion for reconsideration, the circuit court issued its opinion and order which is challenged in this appeal.
The dispositive issue in this appeal concerns the circuit court’s interpretation of the insurance policy issued by Admiral.
A policy of insurance is much the same as other contracts, that is, it is a matter of agreement by the parties, and the courts will determine what the agreement was and enforce it accordingly. Eghotz v Creech, 365 Mich 527, 530; 113 NW2d 815 (1962). Where the policy language is not ambiguous, the courts will accept the plain meaning of the written terms as the agreement of the parties. Stine v Continental Casualty Co, 419 Mich 89, 114; 349 NW2d 127 (1984). The courts will not rewrite the insurance policy to include a term to which the parties have not agreed. Edgar’s Warehouse, Inc v United States Fidelity & Guaranty Co, 375 Mich 598; 134 NW2d 746 (1965); Patek v Aetna Life Ins Co, 362 Mich 292; 106 NW2d 828 (1961).
After reviewing the plain language of the insurance policy in light of the factual findings made by the circuit court, we conclude that the Admiral insurance policy covered the damages which United/Mancini became legally obligated to pay as a result of the fire. The insurance policy provides in pertinent part:
The company will pay on behalf of the insured all sums which the insured . . . shall become legally obligated to pay as damages because of . . .
property damage
to which this insurance applies, caused by an occurrence ....
The insurance policy defines "property damage” as:
"property damage” means (1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period ....
It is undisputed that the fire resulted in the physical injury to or destruction of tangible property, i.e., the tunnel and United/Mancini’s equipment. The circuit court properly found as a matter of fact that damage to physical property occurred as a result of the fire.
The insurance policy defines an "occurrence” this way:
"[Occurrence” means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured ....
It is undisputed that the fire was an accident which was neither expected nor intended by United/Mancini. As previously noted, the accident resulted in property damage. In Western Casualty & Surety Group v Coloma Twp, 140 Mich App 516, 523-524; 364 NW2d 367 (1985), in which the term "occurrence” was contained in an identical insurance coverage provision, the Court observed:
The policy requires only that the alleged negligence of the insured be a cause of the bodily injury or property damage; there is no requirement that the alleged negligence be a direct cause or the sole cause of the injury or property damage.
The Court concluded that the alleged negligence, if proven, could have resulted in property damage sufficient to satisfy the policy definition of "occurrence.” Likewise, in the case sub judice, the negligence of United/Mancini was the cause of the property damage. Thus, there was an "occurrence” as defined by the policy.
Turning to the coverage provision, we find that Admiral agreed to pay on behalf of United/Man cini all sums which United/Mancini became legally obligated to pay as damages because of property damage caused by an occurrence. Unlike the circuit court, we refuse to read into the plain language of the policy a requirement or condition that the tangible property, damaged by the occurrence, belong to the claimant, i.e., DiMambro. Such a condition is found nowhere in the policy.
The circuit court found support for its conclusion in the published trial court opinion of County of Monroe v Travelers Ins Co, 100 Misc 2d 417; 419 NYS2d 410 (1979), aff'd 429 NYS2d 336 (1980). That case is readily distinguishable on several grounds. First, the legal issue in that declaratory judgment action concerned the insurer’s duty to defend the insured when the complaint of the principal plaintiff, filed in a separate liability action, made no mention of property damage. Second, the trial court read the liability policy, containing provisions identical to those at issue here, as requiring that the claimant sustain property damage, an interpretation consistent with a policy exclusion which was relevant on the facts of that case. In contrast, there is no need to read the policy coverage provision in light of a specific exclusion since none has been argued and we find none that applies here. Finally, that case has not been followed by federal courts applying New York law, but has been repeatedly distinguished, although not overruled. See Aetna Casualty & Surety Co v General Time Corp, 704 F2d 80, 83 (CA 2, 1983); Lowenstein Dyes & Cosmetics, Inc v Aetna Life & Casualty Co, 524 F Supp 574, 577 (ED NY, 1981).
In Aetna Casualty & Surety Co, supra, pp 83-84, the court reversed the decision of the district court in which it had eliminated lost profits as an item of damage in its interpretation of the policy term "property damage.” The Aetna insurance policy defined property damage as "injury to or destruction of tangible property (other than property owned by the named Insured) and all direct and consequential loss resulting therefrom.” The court determined that lost profits, an intangible injury, was covered by the policy as a consequential loss. Although the policy language in this case is not identical, we believe that a similar result is warranted here.
United/Mancini next contends that exclusion (m), also referred to as the performance exclusion, should not have been used by the circuit court to bar the coverage of the loss of DiMambro’s use of its trucks. From our reading of footnote 3 of the circuit court’s opinion, we conclude that the circuit court did not squarely decide the issue. Instead, the circuit court responded to an estoppel argument, opining that even if Admiral were estopped from asserting the exclusion, United/Mancini would be in no better position since the damages fell outside that which is covered under property damage.
In light of our decision that the policy covers the delay damages awarded to DiMambro, we remand the case with directions to the court to determine whether exclusion (m) bars coverage for the loss of use of DiMambro’s trucks.
In light of our disposition of the preceding issues, we do not consider the estoppel arguments raised by the parties.
Finally, we decide that Hartford was improperly compelled to be a party in this appeal. The issues raised in the appeal did not directly concern Hartford. Thus, we award taxable costs in favor of Hartford against Admiral.
Reversed in part and remanded for proceedings consistent with this opinion. Costs to Hartford, appellee, and to United/Mancini, appellant. | [
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] |
R. M. Maher, P.J.
Plaintiff was seriously injured on September 9, 1982, when the vehicle she was driving on M-55 in Manistee County went out of control and struck a tree. On February 1, 1983, plaintiff commenced this negligence action against defendant, alleging that it violated its statutory duty to maintain the road in reasonable repair and in a condition reasonably safe and fit for travel. MCL 691.1402; MSA 3.996(102). Plaintiff later sought, but was denied, leave to amend her pleadings to add a count of intentional nuisance. The trial court, sitting without a jury, found in favor of plaintiff and awarded her damages in the amount of $7,256,905. Defendant appeals as of right, challenging the trial court’s finding of liability and the amount of damages. Plaintiff cross-appeals from the award of damages.
i
All governmental agencies, state and local, remain statutorily liable for injuries arising out of the failure to maintain a highway in reasonable repair. Ross v Consumers Power Co (On Reh), 420 Mich 567, 591; 363 NW2d 641 (1984). MCL 691.1402; MSA 3.996(102) provides in pertinent part:
Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency. . . . The duty of the state and the county road commissions to repair and. maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel._
This statutory duty extends to the maintenance of conditions that affect the safety of motorists using the improved portion of the highway designed for vehicular travel. Moerman v Kalamazoo Co Road Comm, 129 Mich App 584, 592; 341 NW2d 829 (1983).
In the instant case, the trial court found defendant negligent for (1) allowing the tree to grow within close proximity to the highway and (2) allowing a two-to-five-inch drop-off between the surface of the road and the shoulder. The court further found that both the tree and the drop-off were dangerous conditions of which defendant had notice prior to the accidént.
On appeal, defendant challenges the trial court’s finding that it had notice of the drop-off and also challenges the court’s conclusion of law that defendant was negligent in not removing the tree. This Court will not set aside the trial court’s findings of fact unless they are clearly erroneous. MCR 2.613(C). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976).
No governmental agency is liable for injuries by virtue of MCL 691.402, unless it knew or should have known of the existence of the defect and had reasonable time to repair the defect before the injury took place. MCL 691.1403; MSA 3.996(103). Notice may be shown by: (1) actual notice; (2) existence of the defect for over thirty days, which establishes a conclusive presumption of notice; or (3) evidence showing that the agency should have discovered and repaired the defect in the exercise of reasonable diligence, i.e., constructive notice. Beamon v City of Highland Park, 85 Mich App 242, 245; 271 NW2d 187 (1978), lv den 405 Mich 831 (1979).
In this case, there is no evidence that defendant had actual notice of the defect, nor was there testimony presented in relation to how long the defect had been present. Although Richard Blast, the supervising engineer of the Department of Transportation Safety Unit Programs, testified that it would take a minimum of two to three months for the edge of the road to erode two inches, this is not evidence that the two- to five-inch drop-off existed for thirty days. Thus, the trial court’s finding that defendant had notice of the defect cannot be allowed to stand unless we can say that defendant should have discovered and repaired the defect in the exercise of reasonable diligence. Beamon, supra. The trier of fact must have been presented with evidence from which it is reasonable to infer that defendant had constructive notice of the defect. Beamon, supra, pp 245-246.
Defendant argues that since there is no evidence that the drop-off existed prior to the day of the accident, it must have been created the same day by one of the many logging trucks which frequently travel the road. In this case, the cause of the drop-off is not determinative of defendant’s liability, but bears directly on the issue of notice. If defendant was correct that the drop-off was created the same day as plaintiff’s accident, we could not say that the defect was sufficiently longstanding to support a verdict of constructive notice. There is insufficient evidence, however, to support the theory that a logging truck created the drop-off on the day of the accident. A view of the scene immediately after the accident revealed no tire tracks from a logging truck, but, rather, only the tire marks from plaintiff’s vehicle. Defen dant’s theory is simply not reasonable in light of the evidence of other possible causes. There was testimony that the drop-off could have been caused by natural erosion combined with routine traffic. There was also testimony that a Manistee County Road Commission broom sweeper could have worsened an existing drop-off. Given the fact that the drop-off existed on the day of the accident, it is reasonable to infer that it had existed for some time.
There was testimony that the Manistee County Road Commission makes periodic observations of the road, specifically looking for drop-offs. These examinations took place at least on a weekly basis, sometimes several times a week or as often as once a day. Therefore, there was evidence from which the trier of fact could reasonably infer that defendant, in the exercise of reasonable diligence, should have discovered and repaired the defect. We cannot say that the trial court’s finding of notice is clearly erroneous.
Defendant also argues that the trial court’s conclusion that the presence of the tree rendered the highway defective is contrary to law. Relying on Moerman v Kalamazoo Co Road Comm, supra, and Carney v Dep’t of Transportation, 145 Mich App 690; 378 NW2d 574 (1985), lv den 424 Mich 889 (1986), defendant argues that it cannot be held liable for plaintiff’s injuries because the vehicle did not strike the tree without any of its wheels leaving the shoulder of the road.
The statutory duty to repair and maintain highways extends to the maintenance of conditions that affect the safety of motorists using the improved portion of the highway designed for vehicular travel. See Moerman, supra, p 592, and the cases cited therein. In Moerman, the plaintiff alleged that the statutory duty included removing a tree located near the shoulder of the road. Thus, the Court was called upon to determine whether the tree affected the safety of motorists using the shoulder of the road. The Court resolved the issue by adopting a "four-wheel” rule:
If the tree was positioned such that the average vehicle could have struck the tree without any of the vehicle’s wheels leaving the shoulder, the tree would affect the safety of motorists using the shoulder. Under such circumstances, the defendant’s duty to keep the road reasonably safe would extend to the maintenance of the tree.”[ ] [Moerman, supra, p 593.]
In Carney v Dep’t of Transportation, supra, pp 696-697, another "tree case,” this Court followed the "four wheel” rule stating:
In this case, plaintiff’s automobile was out of control and had completely departed from the road when it struck the tree. The tree was not within reach of a vehicle with all four wheels on the shoulder. We must bear in mind the Legislature’s restriction of defendant’s duty 'only to the improved portion of the highway designed for vehicular travel’. MCL 691.1402. The particular allegations of negligence which are based solely on defendant’s failure to remove or guard the tree do not, in our view, constitute a viable claim under MCL 691.1402.
The Carney panel, however, went beyond the Moerman holding in finding no violation of the statutory duty:
Additionally, we have reviewed the photographic exhibits admitted at trial. This was a country road lined by numerous trees and other vegetation. Defendant’s duty to maintain the road in reasonable repair does not entail deforestation of the surrounding countryside. [Carney, supra, p 697.]
We do not find Moerman and Carney controlling in this case. In neither case did the plaintiff allege that there was a defect in the road. In neither case did the plaintiff lose control of the vehicle by virtue of the governmental agency’s negligence. In this case, it was the defective road—the drop-off— which caused plaintiff to lose control of the vehicle and strike the tree. Defendant cannot be excused from liability, in this case, simply because less than all the wheels remained on the shoulder of the road. Defendant’s violation of its statutory duty to maintain the condition of the road set in motion the unfortunate series of events which resulted in plaintiff’s injuries. Liability is imposed not because of the proximity of the tree to the road, but because of defendant’s failure to repair the drop-off.
n
Defendant argues that the award of $4,161,000 in damages for pain and suffering is excessive. We disagree.
Awards for personal injury rest within the sound judgment of the trier of fact, particularly awards for pain and suffering, and there is no absolute standard by which to measure such awards. Precopio v Detroit, 415 Mich 457, 464-465; 330 NW2d 802 (1982). Since this case was tried without a jury, the clearly erroneous standard set forth in the court rules is applied to the amount of damages. MCR 2.613(C).
This Court will substitute its own appraisal of the record when, even though some evidence supports a finding of fact, a review of the whole record leaves the Court with a definite and firm conviction that a mistake has been made. Precopio, supra, pp 465-466; Tuttle v Dep’t of State Highways, 397 Mich 44; 243 NW2d 244 (1976). "[S]ince no trier of fact can value pain and suffering with mathematical certainty, a reviewing court must offer 'something more tangible than a difference of opinion as to amount’ before it sets aside a non-jury award as clearly erroneous.” Precopio, supra, pp 470-471, citing Fishleigh v Detroit United Railway, 205 Mich 145, 167-168; 171 NW 549, 556 (1919).
In awarding damages the trial court stated:
At the time of the accident Linda Peterson was a healthy, active mother of one child, Thirty-One (31) years old, and had no physical infirmities, and enjoyed a very active outdoor life as well as the usual indoor activities. She maintained a home and did the usual things but she also hunted, fished, panned gold in Alaska, and was an active outdoor woman. As a result of the defendant’s negligence and this automobile accident, she is admittedly a quadriplegic and has been since September the 9th, 1982, and she will be for the rest of her life. She has a life expectancy of Thirty-Eight (38) years from the date of the trial and this is admitted to be a permanent thing. There is no evidence to indicate she will not live the full measure of her life as determined by her life expectancy and therefore, the Court is obligated to find that she will live the life determined by the mortality tables of the State and the Court so finds.
* * *
Besides the usual.pain and suffering which the plaintiff has been obligated to endure as a result of the accident, the plaintiff will likewise be obligated to depend on people for the rest of her life. The embarrassment and mortification and humiliation that she must go through to bring other persons into the most private aspect of her life are beyond things that healthy people normally could determine. The loss of enjoyment and the good life that she would have enjoyed, besides the humiliation and mortification for the next 38 years, places upon the Court an obligation to fix damages for which there are no definite standards. No one would change positions with the plaintiff for any sum of money but the mere fact that damages are hard to assess does not relieve the Court from the duty to assess in those cases where damages are hard to determine. The Court feels that a fair award for the non-economic damages which the plaintiff will suffer for pain and suffering, loss of the good life, and the mortification and humiliation that she must endure from the date of the accident for the rest of her life expectancy is worth Three Hundred Dollars ($300.00) a day. If one multiplies Three Hundred Dollars ($300.00) a day for the three hundred sixty-five (365) days a year, they have a yearly damage of One Hundred Nine Thousand, Five Hundred Dollars ($109,500.00). This seems like a small sum to pay for damages when many peoples’ employment pays them many times that figure. However, the Court feels Three Hundred Dollars ($300.00) per day to be reasonable and fair and the Court so finds. Three Hundred Dollars ($300.00) a day multiplied by thirty-eight (38) years of the plaintiff’s life expectancy totals the sum of Four Million, One Hundred Sixty-One Thousand Dollars ($4,161,000.00) and the Court so awards those damages for the non-economic damage loss in this case.
Evidence of plaintiffs pain and suffering is provided through the testimony of plaintiff and Dr. Charles J. Danek. Needless to say, plaintiffs injuries greatly affect her day-to-day living. She is unable to attend to her needs and is completely dependent upon nurses for her feeding and cleansing and to move her about. In plaintiffs own words, it is like being "a prisoner in your own body.” Plaintiffs pain and suffering is not purely emotional. Even though her neck was broken and she is unable to feel or move her arms and legs, she experiences pain in the form of a burning sensation which is not relieved by medication. In light of the pain and suffering plaintiff has endured and will continue to endure throughout her lifetime, we conclude that the award for pain and suffering is in accordance with the evidence.
hi
The final issue on appeal in Docket No. 82957 is raised in plaintiff’s cross-appeal. Plaintiff argues that the trial court erred by reducing the award for loss of earning capacity by the amount of income tax plaintiff would have paid. We agree, for the reasons stated in Gorelick v Dep’t of Highways, 127 Mich App 324, 341-343; 339 NW2d 635 (1983). See also Dinger v Dep’t of Natural Resources, 147 Mich App 164, 179; 383 NW2d 606 (1985).
We reject defendant’s claim that there was no evidence adduced at trial upon which an award for loss of earning capacity could be based. The post-trial briefs submitted in lieu of closing arguments reveal that the parties stipulated that plaintiff’s wage loss was $4.54 per hour, or $181.60 per week, $9,443.20 per year, and $363,657.63 per lifetime.
Although we cannot determine whether the award of $249,315 was for lost wages or loss of earning capacity, damages for both are recoverable. Nawrocki v Hawkeye Security Ins Co, 83 Mich App 135, 140; 268 NW2d 317 (1978), lv den 406 Mich 896 (1979). Both items of damages are dependent upon proof of actual lost wages. Rohm v Stroud, 386 Mich 693, 696; 194 NW2d 307 (1972). The stipulation as to plaintiffs hourly wage prior to the accident, together with the severity and permanency of plaintiffs injuries, is evidence from which the trier of fact could have estimated plaintiff’s lost wages or lost earning capacity in a manner which went beyond mere conjecture. Gagnon v Dresser Industries Corp, 130 Mich App 452, 461; 344 NW2d 582 (1983), aff'd 424 Mich 166 (1985).
This case must be remanded to the trial court for computation of plaintiffs lost wages and/or loss of earning capacity without deduction for prospective income taxes.
iv
The sole issue raised in plaintiffs second appeal (Docket No. 78840) is whether the trial court erred in denying plaintiffs motion to amend her complaint to add a count of intentional nuisance. Pursuant to plaintiffs statement to the Court at oral argument, this issue is now waived as plaintiff has prevailed on her claim for negligence.
Reversed and remanded for entry of judgment in favor of plaintiff in accordance with Part in of this opinion.
T. M. Burns, J., concurred.
On July 30, 1984, this Court granted plaintiffs application for leave to appeal the denial of her motion to amend her complaint (Docket No. 78840). By order of this Court, that appeal has been consolidated with the instant appeal.
The award of damages consisted of: $2,500,000 for nursing costs, $346,950 for medical damages, $249,315 for loss of wages/lost earning capacity, and $4,161,000 for noneconomic damages.
Although the Moerman panel reversed its original ruling on rehearing, its reasons for doing so had nothing to do with its approach to the scope of the defendant’s duty. 141 Mich App 154; 366 NW2d 223 (1984), lv den 422 Mich 979 (1985). | [
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M. J. Kelly, J.
To what extent may a government employee publicly criticize his superiors and fellow employees without risking discharge? Petitioner was fired by the State Police, qualifiedly reinstated by the Department of Civil Service, with the qualification stricken on appeal by the Ingham County Circuit Court. We affirm the reinstatement but reverse as to interest.
Facts
Petitioner was hired by respondent Department of State Police in 1972 as a laboratory scientist in the State Police Crime Laboratory. After several years he was transferred, at his request, from the Warren branch to the East Lansing branch of the laboratory where his wife, also a laboratory scientist, was employed. From 1974 to 1977 petitioner and his wife were continuously harassed by their fellow employees; the harassment took the form of sexual innuendoes, racial and ethnic slurs, writing of derogatory graffiti on bulletin boards, the deliberate, repeated smoking of noxious cigars near the petitioner’s work station, and other forms of malicious, childish abuse, such as spreading sugar on petitioner’s work desk.
In 1976 petitioner discovered that a secretary in the evidence laboratory had a key to one of the evidence storage rooms, a serious breach of departmental policy regarding evidence security. Petitioner immediately reported the matter to his superiors, who questioned the secretary, found she had never made any use of the key, and reclaimed the key from her possession. An internal memorandum, part of the lower court file, establishes that there were 34 keys to this room, of which 19 were issued, 12 were in storage after having been returned by prior employees, and 3 were unaccounted for, of which the secretary’s key was apparently one. However, no further action was taken to correct the breach of security.
Petitioner was apparently disturbed by this incident since he and his fellow technicians had repeatedly testified in criminal proceedings involving drug prosecutions that only authorized personnel had access to the evidence storage rooms. Petitioner then began to note additional improper laboratory procedures and practices, including the fact that fellow technicians left evidence unguarded on their desks overnight rather than locking it in storage. Petitioner compiled a photographic record of each incident which he presented first to the director of the Department of State Police, receiving no response for over two months, then to the Attorney General, and finally to the Governor’s legal counsel. At each step he was met with stony indifference.
Petitioner blew the whistle. He went to the Lansing State Journal and decried what he viewed as malfeasance in office by the director of the Department of State Police and other responsible officials. The Journal published at least three articles, a departmental investigation was in turn referred to the Attorney General, and ultimately the director of the department commissioned a deputy director’s inquiry, which resulted in corrective action. The inquiry found the existence of poor security procedures and as a result the laboratory was rekeyed.
In the interim, petitioner was charged with several violations of civil service and departmental rules, including insubordination and "conduct unbecoming a state employee”. The gravamen was the making of irresponsible charges of misconduct by state police officials to the newspapers. On November 18, 1977, a hearing panel released its findings and recommended dismissal for insubordination and "unbecoming conduct” in making irresponsible public charges. During the course of the hearing the parties stipulated that the caliber of petitioner’s work was never in question and in fact had been uniformly high. Petitioner was dismissed on or about November 30, 1977, and pursued his administrative appellate remedies.
Following hearings and the submission of briefs, a grievance decision was issued on September 12, 1978. The hearing officer found that Oliver was disloyal to his employer but reduced the discipline from dismissal to suspension without pay conditioned upon public retraction of the claims. After appeal to the Michigan Civil Service Commission, the matter was remanded to the hearing officer and he issued an amended decision dated September 11, 1979, wherein he incorporated the exact terms of the public retraction as articulated in the September 12, 1978, grievance decision:
"As an essential condition of any reinstatement to his former position as a laboratory scientist, grievant shall be required to retract publicly those statements that he made regarding the 'malfeasance’ and 'gross negligence’ of the former or present Director of the Michigan State Police and other department officials.”
Petitioner declined to make the public retraction and instead filed an appeal and petition for review in the Ingham County Circuit Court pursuant to MCL 24.302; MSA 3.560(202).
On July 1, 1982, the circuit court issued an opinion from the bench regarding several motions. In pertinent part, the court ruled (we paraphrase):
a) That the statements made by Oliver involved matters of general and great public concern and were entitled to constitutional protection.
b) That there was no competent, material, and substantial evidence to support the conclusion that Oliver made, false statements knowingly or with reckless disregard as to whether they were true or not.
c) That Oliver had no legal obligation to make a retraction and could not be required — as a condition of continuing employment — to waive his First Amendment rights.
d) That he was to be reinstated with back pay.
On August 18, 1982, an order reflecting the opinion was entered.
There followed an abortive attempt to perfect an appeal here.
On September 8, 1982 — 21 days after entry of the August 18, 1982, order — respondents filed a claim of appeal. On October 7, 1982, respondents filed an application for delayed appeal. On November 3, 1982, this Court granted respondents’ motion for a stay pending determination of the application for leave to appeal. On February 23, 1983, this Court denied the application for delayed appeal for lack of merit, and the stay of judgment was vacated.
Petitioner, not having been reinstated, moved the circuit court for a writ of mandamus. Meanwhile, respondents filed — on March 15, 1983 — an application for leave to appeal to the Supreme Court and requested a stay of the pending order until disposition. On March 23, 1983, Circuit Court Judge Giddings entered an order for writ of mandamus. However, on April 8, 1983, the Supreme Court ordered that the reinstatement be stayed. On April 26, 1983, the Supreme Court, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, remanded the case to this Court as on leave granted. Oliver v Dep’t of State Police, 417 Mich 971 (1983). On May 10, 1983, this Court granted respondents’ motion for a stay.
I
Did the circuit court commit error in the scope of its review of the Civil Service Commission’s decision either by invading the fact-finding process of discretionary action or by misapplying First Amendment protections to petitioner?
The Ingham County Circuit Court rendered a comprehensive 56-page opinion preliminary to its order that petitioner be reinstated with full back pay and no loss of seniority. We have reviewed the lengthy record of administrative proceedings below with particular attention to the dispositive summary of the facts section of the grievance decision, the circuit court record, and the briefs on appeal and we find no error. Rather than undertake unnecessarily detailed review of those findings, we believe it sufficient to say that not only did the circuit court correctly conclude that there was no evidence to support certain crucial findings of the Civil Service Commission hearing officer, but the undisputed factual evidence is that petitioner’s allegations to the newspaper were substantially true. There is no claim that the information petitioner disclosed to the newspaper was protected by some requirement of confidentiality and in the circumstances of this case any such imprimatur of confidentiality would be void as against public policy. We summarily reject the respondents’ contention that petitioner’s statements to the newspaper do not regard topics of public debate or concern. Furthermore, we find that the Ingham County Circuit Court came to the same conclusions of fact as did the Civil Service Commission. The only difference between the decision of the commission and that of the court was on an issue of law regarding the applicability of the facts to the so-called disloyalty test on which the hearing officer incorrectly based his recommendations.
Neither the parties nor Judge Giddings take, or took, issue with the factual summary presented by the hearing officer. The hearing officer found that petitioner was wrong in making statements to newspapers and that:
"The statement reflected disloyalty to the Department. 'Disloyalty to one’s employer is one of the most serious charges, if not the most serious, that can be leveled against an employee. If the employee is proven guilty of such charge, few, if any, would argue the discharge from employment is not the only appropriate penalty.’ General Electric Company, 40 LA 1127 (Davey, 1963).”
The reviewing court determined that the issue was whether there was "competent, material and substantial evidence on the whole record supporting the conclusion that petitioner made false statements knowingly or with reckless disregard as to whether they were true or not”. The reviewing court observed that the hearing officer did not directly make such findings. Incidentally, petitioner maintained throughout and continues to the date of oral argument on appeal before this Court to insist that his allegations were true.
In any event, the circuit court said it would assume that the hearing officer ruled that Mr. Oliver knowingly made false statements and therefore it was necessary for the court to comb the record to determine whether the evidence supported such a finding. The court reviewed the fact-findings and opinion of the Civil Service Commission, reviewed the transcript and exhibits, and correctly opined that there was no evidence to support the conclusion that petitioner made the statements knowing them to be false or with reckless disregard as to whether or not they were true. Viculin v Dep’t of Civil Service, 386 Mich 375, 392; 192 NW2d 449 (1971), sets forth the appropriate standard of review in this case: "[W]hether the [findings] are supported by competent, material and substantial evidence on the whole record”. In Pickering v Bd of Ed of Twp High School, Dist 205, Will County, 391 US 563; 88 S Ct 1731; 20 L Ed 2d 811 (1968), a high school teacher was dismissed for sending a letter to a local newspaper that was critical of the way in which the board had handled proposals to raise revenue for the schools. Prior to the teacher’s dismissal, a hearing was held and it was determined that the publication was detrimental to the effective operation and order of the district. Pickering claimed that the letter was protected by the First and Fourteenth Amendments. The United States Supreme Court agreed with Pickering and reversed the Supreme Court of Illinois.
The Supreme Court said it had before it,
"[A] case in which a teacher has made erroneous public statements upon issues then currently the subject of public attention, which are critical of his ulti mate employer but which are neither shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally.” 391 US 572-573 (footnotes omitted).
In establishing the standard, the Supreme Court said:
"The public interest in having free and unhindered debate on matters of public importance — the core value of the Free Speech Clause of the First Amendment — is so great that it has been held that a State cannot authorize the recovery of damages by a public official for defamatory statements directed at him except when such statements are shown to have been made either with knowledge of their falsity or with reckless disregard for their truth or falsity.
"This Court has also indicated, in more general terms, that statements by public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors.
"* * * However, in a case such as the present one, in which the fact of employment is only tangentially and insubstantially involved in the subject matter of the public communication made by a teacher, we conclude that it is necessary to regard the teacher as the member of the general public he seeks to be.
"In sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.” 391 US 573-574 (footnotes and citations omitted).
In Connick v Myers, — US —; 103 S Ct 1684; 75 L Ed 2d 708 (1983), the Supreme Court revisited Pickering. In Connick, Sheila Myers, an assistant district attorney, was fired after she circulated an interoffice questionnaire concerning office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns. In reversing the district court’s and court of appeals decisions requiring Ms. Myers to be reinstated with back pay, damages, etc., the Supreme Court said:
"Our task, as we defined it in Pickering, is to seek 'a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees’.
"Pickering’s subject was 'a matter of legitimate public concern’ upon which 'free and open debate is vital to informed decisionmaking by the electorate.’
"Yet Pickering unmistakably states, and respondent agrees, that the state’s burden in justifying a particular discharge varies depending upon the nature of the employee’s expression. Although such particularized balancing is difficult, the courts must reach the most appropriate possible balance of the competing interests.
"The Pickering balance requires full consideration of the government’s interest in the effective and efficient fulfillment of its responsibilities to the public. One hundred years ago, the Court noted the government’s legitimate purpose in 'promoting] efficiency and integrity in the discharge of official duties, and to maintain proper discipline in the public service’.
"We agree with the District Court that there is no demonstration here that the questionnaire impeded Myers’ ability to perform her responsibilities.
"Also relevant is the manner, time, and place in which the questionnaire was distributed.
"Finally, the context in which the dispute arose is also significant. This is not a case where an employee, out of purely academic interest, circulated a questionnaire so as to obtain useful research. Myers acknowledges that it is no coincidence that the questionnaire followed upon the heels of the transfer notice.” 75 L Ed 2d 717-724 (footnotes and citations omitted).
The instant case is more factually similar to Pickering in that it involves the publication of allegedly false statements. This issue was not considered in Connick. Thus, it appears that the Pickering standard set forth above has continued vitality in the appropriate factual context. Connick suggests further factors that may be considered.
In addressing the First Amendment issue, respondents did not challenge application of the Pickering standard to the present case. They cite Council No 11, AFSCME v Civil Service Comm, 408 Mich 385; 292 NW2d 442 (1980), for the proposition that the Civil Service Commission can regulate conditions of employment even in the area of the First Amendment. In AFSCME, the plaintiff was employed as a nurse. He was discharged for violating Civil Service Commission Rule 7.3, in that he filed nominating petitions to become a candidate for sheriff of Ionia County. The Supreme Court granted leave to appeal to consider two issues:
"D Whether 1976 PA 169 has application to employees in the state classified civil service; and
"2) Whether Rule 7 of the Michigan Civil Service Commission constitutionally regulates the political activities of employees in the state civil service.” 408 Mich 390-391 (footnotes omitted).
The Supreme Court held that:
"1976 PA 169 properly applies to classified employees of the state civil service and that, to the extent that Rule 7 is in conflict with the statute or otherwise purports to regulate the off-duty political activity of state classified civil service employees, it is invalid. In view of our holding on that question, we do not reach the constitutional issue.” 408 Mich 390-391.
Clearly, AFSCME is inapplicable to the instant case.
We feel it unnecessary to further address the free speech issue except to say that we fully agree with the circuit court’s finding that petitioner’s statement involved matters of general and great public concern. The integrity of criminal prosecutions was implicated.
II
The next issue is whether the circuit court erred in ordering the specific terms of Mr. Oliver’s reinstatement. Respondents contend that the circuit court went beyond its reviewing function in specifying the identical job assignment, and locale at and to which petitioner was to be reinstated. We agree. Under the terms of the employment contract which is set out in respondents’ brief and the terms of which are not disputed by petitioner,’ job locale selection is in the hands of the employer. The trial court erred in anticipating arbitrary action by the respondent-employer. Petitioner’s arguments about possible and probable retaliatory action were and are conjectural and the circuit court’s order violates the principles of the separation of powers between the judicial and executive branches. See Bischoff v Wayne County, 320 Mich 376; 31 NW2d 798 (1948); Bannan v City of Saginaw, 120 Mich App 307; 328 NW2d 35 (1982), lv gtd 418 Mich 880 (1983), and Brownstown Twp v Wayne County, 68 Mich App 244; 242 NW2d 538 (1976), lv den 399 Mich 831 (1977). The lower court exceeded its authority in issuing a writ of mandamus with specific requirements for reinstatement venue. Its writ of mandamus must be quashed.
Ill
The final issue involves the question of whether or not petitioner is entitled to interest on the award of back pay and, if so, from what date. There is a troubling threshold question of whether or not this issue has been preserved for review. The procedural convolutions that this appeal took resulted in an order of this Court dated June 21, 1983, which appears to preserve the interest issue for review.
At the July 1, 1982, circuit court review during which the circuit court overturned the hearing officer’s decision, no provision was made for interest. The order of August 18, 1982, from which this appeal was taken, provided for "such interest and costs as may be provided by law or regulation”. The order for writ of mandamus provided for "other benefits as provided by law”, but did not specifically mention interest. In this Court’s order of May 10, 1983, granting the stay of execution on the writ of mandamus, we conditioned the stay on payment of interest pursuant to MCL 600.6013; MSA 27A.6013. Respondents then filed a motion for rehearing on the stay, challenging the interest condition. Petitioner filed an answer in opposition to the rehearing and a motion to add the interest issue. This Court denied the motion for rehearing and granted the motion to add the interest issue in its order of June 21, 1983. Despite this tanglement, it seems that the issue of interest has been "preserved” since Judge Giddings’ order of August 18, 1982.
MCL 600.6013(1); MSA 27A.6013G) provides:
"Interest shall be allowed on a money judgment recovered in a civil action, as provided in this section.”
This section is the exclusive interest provision in a civil action where a money judgment is recovered.
Respondents argue that circuit court review under the Administrative Procedures Act did not rise to the level of a civil action. In Detroit v DPOA, 408 Mich 410; 294 NW2d 68 (1980), one issue addressed by the Supreme Court was whether interest should be permitted on an arbitration panel’s award. The panel of arbitrators, pursuant to statute, had resolved issues during the formation of a collective-bargaining agreement. The City of Detroit brought an action seeking review of the award and challenging the constitutionality of the statute which provided for compulsory arbitration. Defendant DPOA counterclaimed for, inter alia, interest on the economic portions of the award from the time of its issuance.
The Supreme Court said:
"Both the DPOA and the DFFA have appealed the trial court’s denial of interest on the arbitration panel’s economic award. Since 1969 PA 312 itself is silent on the subject of interest, the DPOA and the DFFA base their appeal on MCL 438.7; MSA 19.4, as well as MCL 600.6013; MSA 27A.6013.
"We find MCL 600.6013 to be inapposite to the situation at bar. * * *
"The Act 312 arbitration award is not a 'money judgment recovered in a civil action’. MCL 600.6013, as part of the Revised Judicature Act of 1961, does not apply to compulsory interest arbitration in the public sector. The preamble to the Revised Judicature Act states its concern, instead, to be with such matters as the 'organization and jurisdiction of the courts’ and the 'forms and attributes of civil claims and actions’. Our reasoning in the analogous context of disallowing an interest claim on a workers’ compensation award made under MCL 600.6013 is here valid. Cf. Solakis v Roberts, 395 Mich 13; 233 NW2d 1 (1975). An Act 312 arbitration panel is not 'a court’, 'is not possessed of judicial power’ and the concept of a money judgment is 'totally alien to the policy and philosophy’ of Act 312 which looks to the expeditious and effective resolution of critical-service public sector labor disputes. 395 Mich 21-22.
"We also find MCL 438.7 to be an inappropriate vehicle for the granting of interest. That statute, in pertinent part, states:
" 'In all actions founded on contracts express or implied, whenever in the execution thereof any amount in money shall be liquidated or ascertained in favor of either party, by verdict, report of referees, award of arbitrators, or by assessment made by the clerk of the court, or by any other mode of assessment according to law, it shall be lawful, unless such verdict, report, award, or assessment shall be set aside, to allow and receive interest upon such amount so ascertained or liquidated, until payment thereof or until judgment shall be thereupon rendered; * * V
"Nor do we find entirely persuasive the argument that the statutorily imposed Act 312 contract can itself serve as the 'contract’ contemplated by the terms of MCL 438.7. The Act 312 contract, as issued by a panel, is not, as required by MCL 438.7, one that has been executed to the extent that an amount of money is liquidated or ascertained. Further, an Act 312 proceed ing cannot be 'founded’ on a contract since its very purpose is to make a contract.” 408 Mich 499-501.
DPOA confirms what this Court said in Porter v Bd of Optometry, 41 Mich App 150; 199 NW2d 666 (1972). In Porter, the plaintiffs license was suspended by the State Board of Examiners in Optometry. The plaintiff filed a petition for review in the circuit court pursuant to the Administrative Procedures Act of 1969, MCL 24.301 et seq.; MSA 3.560(201) et seq. The circuit court affirmed the decision of the board. This Court held that the judgment of the circuit court was not a final judgment, appealable as of right. The Court said:
"Logic is not the only basis for our action. In speaking of the constitutional right of review of administrative proceedings, Const 1963, art 6, § 28, the Supreme Court said in Evans v United States Rubber Co, 379 Mich 457, 461; 152 NW2d 641 (1967):
" 'We do not read the above language, "shall be subject to direct review by the courts as provided by law”, to mean that in each such case review shall be compulsory or as of right upon its being invoked by either party but only that review shall be had when, in the exercise of judicial judgment and discretion, the court shall, on application, so determine, or when so provided by law.’
"Later in the same opinion, the Court held that MCL 600.308 and 309; MSA 27A.308 and 309 apply to appeals as of right in 'civil matters in the courts’. GCR 1963, 806.1 speaks to civil matters. Review of administrative proceedings by a court does not change an administrative proceeding to a civil proceeding, and the Supreme Court, at least by implication, so held in Evans, supra.” 41 Mich App 152.
Later, in Jones v Chrysler Corp, 394 Mich 432; 231 NW2d 642 (1975), the Supreme Court expressly disapproved the holding of Porter that review by the circuit court did not constitute a final judgment, appealable as of right. The Supreme Court did not comment on the "civil matters” finding.
In Moore v Carney, 84 Mich App 399; 269 NW2d 614 (1978), the plaintiff, a minority shareholder, brought suit against the directors of the corporation. The trial court found acts of mismanagement and ordered the defendants to purchase the plaintiff’s stock. On appeal, the plaintiff challenged the trial court’s denial of interest on the judgment from the date of filing of the complaint. The plaintiff asserted that interest should have been awarded under MCL 600.6013; MSA 27A.6013. This Court said:
"The primary question is whether plaintiffs judgment constituted a 'money judgment’, thus necessitating that interest be awarded from the date of filing the complaint.
"A 'money judgment’ is defined in Black’s Law Dictionary (4th ed), p 980, as:
" 'One which adjudges the payment of a sum of money, as distinguished from one directing an act to be done or property to be restored or transferred.’
"The dictionary cites a Federal case from Michigan, Fuller v Aylesworth, 75 F 694 (CA 6, 1896).
"The trial court, in ruling on the plaintiffs motion for interest from the date of filing the complaint under the statute, noted that while the judgment involved money, it was not solely a 'money judgment’. It was essentially part of an equitable remedy. We agree.” 84 Mich App 404-405.
The above cases suggest that interest is not proper in this action under MCL 600.6013; MSA 27A.6013. There is substance to petitioner’s argument that he has been deprived of the use of interest, but there are certainly problems of proof regarding the amount of interest petitioner would actually have made through savings or investment, set-off due to petitioner’s wages from other jobs, etc. Petitioner is presently involved in a civil suit against his superiors in the department. Interest as an element of damages is more appropriately considered in that suit.
Petitioner cites Reich v State Highway Dep’t, 386 Mich 617; 194 NW2d 700 (1972), in support of his claim that the failure to allow interest here would violate equal protection and deny him due process. In Reich, the plaintiffs challenged the constitutionality of the 60-day notice requirement of 1964 PA 170 — the highway statute which requires notice as a condition to recovery. The Supreme Court held that the notice was unconstitutional as to minors, denying them due process, and that it was arbitrary and violated the Equal Protection Clause in that the victims of private tortfeasors had three years in which to bring their actions.
However, as respondents point out, in Forest v Parmalee, 402 Mich 348; 262 NW2d 653 (1978), the Supreme Court basically limited Reich to its facts. In Parmalee, the Supreme Court held that the two-year statute of limitations under the same act did not violate equal protection even though suits brought against private tortfeasors could be brought within three years.
In our opinion, no analogy can be drawn between Reich and the instant case. While it is true —and it may not be fair — that a private suit for wrongful discharge would fall under MCL 600.6013; MSA 27A.6013, the denial of interest in this case is part of the overall administrative scheme involved in public employment. Addition ally, petitioner is not without further civil remedies.
The lower court did not exceed the applicable scope of review and correctly applied the Pickering standard, based on the findings of both the Civil Service Commission and the circuit court. The lower court did exceed its authority in issuing a writ of mandamus with specific requirements for reinstatement. Interest under MCL 600.6013; MSA 27A.6013 is inappropriate.
The circuit court’s order of August 18, .1982, is affirmed. Its writ of mandamus issued March 23, 1983, is quashed. The interest portion of this Court’s order of May 10, 1983, is vacated. No costs. | [
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Bronson, J.
Plaintiff appeals as of right from the circuit court’s order upholding the validity of defendant’s single-family zoning classification of property owned by plaintiff. We find that plaintiff met its burden of proving that the zoning classification of plaintiff’s property does not reasonably advance any governmental interest and is therefore invalid. We accordingly reverse the judgment of the trial court.
Plaintiff is a general co-partnership created for the purpose of developing low-rise medical and professional office buildings on the subject property. The subject property is a 17.6-acre L-shaped parcel of land (the land) located on Crooks Road, north of Big Beaver Road, in the City of Troy. The land is comprised of a long, narrow 15-acre rectangle, with frontage of approximately 500 feet on the east side of Crooks Road and a depth of approximately 1,317 feet, at the southwest end of which is appended an approximately 2.5-acre rectangle.
The Crooks-Big Beaver intersection is a major intersection in the City of Troy. Big Beaver Road is a principal east-west road in Troy. At the Crooks intersection it has four through lanes and two deceleration lanes for right turns. It also has a center median with two left-turn lanes.
In the vicinity of the intersection are a number of office buildings, including several high-rise buildings. Along both sides of Big Beaver Road in the one-mile stretch west from the Crooks intersection is a combination of office and commercial uses. Located in the vicinity of the Big Beaver-Coolidge intersection is the Somerset complex, consisting of a high-rise hotel and a regional shopping center, K mart Corporation’s international headquarters, and two major office developments.
For approximately one-quarter mile east along Big Beaver Road from the Crooks intersection is an area of intense office development, including two high-rise and several mid-rise office developments. Approximately one-quarter mile from the intersection are the entrance and exit ramps to I-75. Just east of 1-75 on the north side of Big Beaver Road is the municipal office complex of the City of Troy.
Crooks Road, at the Big Beaver Road intersection, has four through lanes plus a right-turn deceleration lane. It is one of Troy’s major north-south roads and is the third most heavily traveled road in the city. At present, Crooks Road in front of the land has three lanes. Troy’s master plan calls for a widening of Crooks Road north from the land to the next mile road. At the northwest and southwest corners of the Crooks-Big Beaver intersection are two service stations. A 13-story highrise office building sits at the northeast corner and another office building is located at the southeast corner.
In the approximately 800-foot stretch of Crooks Road between the land and the Big Beaver intersection are a mix of nonresidential uses, both office and commercial. There is no residentially zoned land in that stretch of road. Directly to the south of the land on the west side of Crooks Road are a 24-hour Denny’s Restaurant, a small strip shopping center, several office developments, and a vacant parcel zoned for office use. Abutting the north and west boundary of the land is a small single-family subdivision, consisting of older, low-cost homes.
Directly across Crooks Road from the land is a vacant parcel, part of which is zoned for single-family use and part of which has recently been rezoned by the city for mid-rise office use. An office development plan has been approved for this parcel and the record indicates that improvements will be made to Crooks Road to accommodate the expected increased traffic generated by development of this parcel and the newly developed office building on the west side of Crooks Road (see fn 1 supra).
The land is, and was at the time it was acquired, zoned R-1B. The R-1B zoning classification restricts the use of the land to single-family detached dwellings, churches, schools, nonprofit swimming pools, noncommercial recreational areas, and golf courses.
Plaintiff challenges the R-1B zoning classification on alternative constitutional grounds. Plaintiff contends that the classification does not reasonably further a legitimate governmental interest. Alternatively, plaintiff argues, the zoning classification amounts to a confiscation of plaintiffs property because it precludes use of the land for any purposes to which the land is reasonably adapted. Plaintiff is entitled to a judgment if it shows either that the R-1B classification does not reasonably advance a governmental interest or that the classification amounts to a confiscation of plaintiffs property; plaintiff is not required to succeed on both arguments. Kropf, supra, pp 156-157.
In addressing plaintiff’s confiscation claim, the trial court interpreted Michigan case law to require presentation of proofs as to all of the potential uses permitted by the R-1B classification. The court ruled that plaintiff had failed to sustain this burden of proof. The court opined that the Michigan rule was inequitable and expressed its preference for the rule set forth in Grimpel Associates v Cohalan, 41 NY2d 431; 393 NYS2d 373; 361 NE2d 1022 (1977), to the effect that plaintiff need not prove the unfeasibility of the land’s use for public or quasi-public purposes. Inviting appellate review, the trial court stated that it was not for it to follow the "sound public policy and cogent legal reasoning” embodied in Grimpel.
The trial court continued that since plaintiff had failed to make the required showing the court need not address the question of whether or not the land could feasibly be developed for single-family residential use. In its amended findings of fact, the trial court found that reasonable governmental interests were advanced by the R-1B classification.
This Court, while giving deference to the findings of the trial court, must review the record in a zoning case de novo. Kropf, supra, p 163. Although we hold that the R-1B classification of plaintiff’s property is invalid because it fails to reasonably advance a legitimate governmental interest, we feel it necessary also to discuss the fundamental issues raised by the trial court’s view of the burden imposed on a landowner making a confiscation claim.
A zoning ordinance which substantially destroys the value of a parcel of property is void. Robyns v Dearborn, 341 Mich 495; 67 NW2d 718 (1954). Even though such an ordinance may advance the public welfare, it is invalid because it amounts to a condemnation of property for a public purpose without compensation. In Michigan, the test for determining whether a zoning ordinance is invalid because it is confiscatory is whether the restrictions the ordinance imposes on the use of the property "preclude its use for any purposes to which it is reasonably adapted”. Kropf, supra, pp 162-163.
Plaintiff introduced evidence indicating that the land has a negative value as a site for single-family homes. We agree that, to establish confiscation, the plaintiff has the burden of showing that the R-1B classification precludes use of the land for any use to which it is reasonably adapted. Kropf, supra, pp 162-163. We do not agree that this rule imposes a burden on plaintiff to positively show that the land could not be reasonably adapted to each and every permitted use; specifically, we do not believe that plaintiff’s failure to introduce evidence on the use of the property for churches, schools, nonprofit swimming pools, noncommercial recreational areas, or golf courses precluded a finding of confiscation.
In Zaagman, supra, fn 3, the Supreme Court found that a zoning ordinance precluded all reasonable uses of the property in question, but did not expressly consider each of the permitted uses. Similarly, in Schwartz v City of Flint, 92 Mich App 495; 285 NW2d 344 (1979), lv den 408 Mich 905 (1980), after remand 120 Mich App 449; 329 NW2d 26 (1982), this Court invalidated a zoning ordinance based on proofs showing that the property was undevelopable for single-family homes, without undertaking a consideration of the feasibility of any other uses permitted by the zoning ordinance.
In ruling that plaintiff had not met the required burden of proof, the trial court relied on White Lake Twp v Amos, 371 Mich 693; 124 NW2d 803 (1963), where the Court refused to find a zoning ordinance invalid because the landowners showed only that the land was undevelopable for single-family housing, but did not show that the land was undevelopable pursuant to the other non-public uses permitted by the applicable ordinance. Accord, Davis v Bridgeport Twp Planning Comm, 55 Mich App 15; 222 NW2d 13 (1974).
In White Lake Twp, supra, and Davis, supra, the other uses permitted by the applicable ordinances were animal husbandry and farming, respectively, both of which are commercial activities. These cases do not stand for the proposition that a landowner, in order to prove confiscation, must show that his property is not developable for the public, religious, or nonprofit uses permitted , by a zoning ordinance; moreover, we do not believe that to extend the cited cases to require such a showing makes sense. This subject is addressed in 1 Rathkopf, The Law of Zoning and Planning (4th ed), § 6.09, pp 6-31 — 6-33:
"Since the test of confiscation is often expressed as that the restrictions prevent the subject property from being used for any use to which it is adapted, some courts have required the plaintiff to demonstrate that the property is not adapted to any use, either absolutely or conditionally permitted, including churches, a public library, or a museum.
"It is obvious that the market for land for churches and schools is extremely limited and that for museums and libraries is more limited still. Such uses are established only after a residential area has been established; they are located where residential development has been sufficiently extensive to indicate not only a demand for the services that the particular facility may supply, but one great enough to assure funding for its establishment and support. Even the existence of a religious corporation or school body contemplating the purchase of land is extremely difficult to ascertain and proof that prior to instituting action the landowner has made 'bona fide efforts’ to sell the land for such purposes is almost a practical impossibility.
"Public uses, such as public schools and municipal buildings, limit the possible purchasers to the municipality which has imposed the restriction or to other public corporations which also have the right of eminent domain. These, too, seldom purchase property for municipal or governmental purposes until the community has developed so as to require the use.
"Some courts have recognized that it is unrealistic to expect land to have a viable market for these public and quasi-public uses where circumstances exist which render the land unadaptable for the principal permitted residential use. It would seem that where the plaintiff has demonstrated that the land is not reasonably adaptable for the residential uses to which it is restricted, it should be sufficient merely to show, in addition, that neither inquiries nor offers had been received for any of the other permitted or conditional uses, thus placing the burden on the municipality of going forward with proof that there are reasonable grounds to believe that a market exists.” (Footnotes omitted; emphasis in original.)
The R-1B zoning classification does permit two other types of non-public uses, i.e., agriculture or a golf course. Although Kropf, supra, White Lake Twp, supra, and Davis, supra, could be interpreted as requiring plaintiff to have introduced specific proofs regarding the feasibility of these other nonpublic uses, we believe that, in the instant case, application of such a rule is illogical and produces unjust results. The evidence introduced by plaintiff established a sufficient basis for determining the infeasibility of developing the land for agriculture or as a golf course. The trier of fact, in a zoning case, could determine that a parcel consisting of only 17.6 acres on a heavily traveled urban road, in the midst of an intensely developed and highly urbanized area, could not reasonably be developed as a farm or as a golf course.
A zoning ordinance, as an exercise of the police power, must bear a reasonable relationship to the public health, safety, or welfare. Janesick v Detroit, 337 Mich 549, 556; 60 NW2d 452 (1953). A zoning ordinance is invalid if it fails to advance a legitimate governmental interest or if it is an unreasonable means of advancing a legitimate governmental interest. Kropf, supra, p 158.
The test of the validity of a police power regulation requires a balancing of the public interest against the private interest.
"In every case of hardship the rights of the general public must be weighed against the right of the individual land owner to use his property to the greatest advantage. Significant but not conclusive factors in such a determination are depreciation and loss of use by the property owners as a result of the application of the ordinance.” Janesick, supra, p 554.
The extent of public need must be balanced against the degree of intrusion upon the private interest. Pere Marquette R Co v Muskegon Twp Board, 298 Mich 31, 36; 298 NW 393 (1941) (hardship to owner must be weighed against usefulness to public). Thus where the public need addressed (i.e., the public interest advanced) by the zoning restriction is relatively small, a large intrusion on a landowner’s use of his land will not be deemed reasonable. Id. Furthermore, while a zoning regulation which substantially reduces the value of land may not be confiscatory, the disparity in value between the land as zoned and the land if other uses were permitted is a factor to be considered in determining whether a zoning regulation is a reasonable exercise of the police power. Reibel v Birmingham, 23 Mich App 732; 179 NW2d 243 (1970).
In its amended findings of fact, the trial court found that the R-1B zoning classification advanced legitimate governmental interests, specifically:
"(1) Reducing traffic congestion;
"(2) Preserving residential zoning on the east side of Crooks Road across the street from the subject parcel; and
"(3) Following the Master Land Use Plan.”
After a thorough review of the record, we conclude that no governmental interest is reasonably advanced by the R-1B classification of the land.
Defendant first claims that the R-1B classification relieves traffic congestion. The record indicates that Crooks Road is a heavily traveled road, receiving substantial traffic from the intense office and commercial uses in the vicinity of the land. The City of Troy has plans to alleviate this traffic by improving Crooks Road in the one-mile stretch north from Big Beaver Road. In addition, two office developments — one just completed and one just approved by the city — will further increase the Crooks Road traffic.
Having concluded that these two new office developments are acceptable, with associated traffic improvements, it is difficult to understand how the city can justify prohibiting office development of the land or why the city cannot deal with the incremental impact of traffic to be generated from the land by utilizing means (i.e., traffic improvements) less intrusive than the prohibition of office development.
Moreover, an element of extreme unfairness is inherent in the defendant’s position. The traffic problems on Crooks Road were not created by the land. They are an existing condition created by existing uses, including two uses just approved by defendant. Crooks Road is a major thoroughfare intended to carry large volumes of commercial traffic. The problems created by the nature of the road and of the uses served by the road are problems created by the city in establishing this area as a center of office and commercial activity — they are public problems. The burden and cost of dealing with these problems should be fairly distributed among the public, and should not depend upon the fortuity of who develops his land last. That is, it is unreasonable to impose such a disproportionate share of the cost of dealing with problems generated by Crooks Road traffic on the last developer to locate along this busy major road. See Alderton v Saginaw, 367 Mich 28; 116 NW2d 53 (1962).
Finally, the Crooks Road traffic problem also militates strongly against the use of the land for single-family residences. The small subdivision which could be platted on this 17.6-acre parcel would have access only from Crooks Road, via one long (approximately 1,500 feet) cul-de-sac. As the city’s Planning Director testified, school children from such a subdivision would be required to walk along Crooks Road (which has no sidewalks) to get to school. We conclude that Crooks Road traffic is a factor which weighs against the reasonableness of single-family use of the land.
Defendant next claims that the R-1B classification advances the city’s master plan. Whether a zoning classification advances a city’s master plan is a factor in determining reasonableness. It is, however, only one factor; it does not replace the balancing of interests required under an assertion of the police power. Some of the other factors to be considered are: the extent to which the goals of the master plan are advanced by the use limitations imposed on a given parcel of land; the stability of the master plan; the extent to which the master plan constitutes a commitment to a coherent development plan for the neighborhood which takes into account existing conditions and legitimate future expectations. While a master plan constitutes a general guide for future development, the validity of a zoning regulation must be tested by existing conditions. Biske v Troy, 381 Mich 611, 617-618; 166 NW2d 453 (1969).
Defendant only recently designated the land for single-family use in its master plan. The land was earlier designated for more intense residential use, and its master plan designation was only lowered in 1980, the same year this suit was commenced.
Given the facts discussed in this opinion and the other evidence in the record, including, particularly, the pattern of development along Crooks Road, recent rezonings of property along this stretch of Crooks Road to permit office development, the inability to integrate the land into a stable residential neighborhood, and the designation of Crooks Road as a major thoroughfare by the same master plan, we can find no reasonable governmental interest advanced by the master plan designation or the zoning ordinance classification of the land. Our review of the record discloses a lack of commitment to a development plan along this stretch of Crooks Road which would be reasonably advanced by restricting the land to single-family use.
Defendant next argues that the R-1B classification prevents further encroachment of commercial uses on the residential area. The zoning enabling act requires that a zoning ordinance insure that uses of land "shall be situated in appropriate locations and relationships”. MCL 125.581; MSA 5.2931. Defendant contends in eifect that office development of the land would be inconsistent with the single-family residential character of its area.
The record clearly indicates that the area does not have a single-family residential character and that defendant has no real stake in restricting the use of the land to single-family residential. There is office and commercial development and zoning on both sides of Crooks Road south to Big Beaver Road. In view of the intense commercial and office development of the area, any further encroachment on the sole single-family subdivision to the north of the land effected by office or commercial development of the land is minimal.
Finally, defendant argues that the R-1B classifi cation protects the vacant residential property on the east side of Crooks Road across from the land.
The land is separated from the land which defendant seeks to protect by Crooks Road, a major road, and by its traffic. Crooks Road now has three lanes in front of both parcels, it is planned for widening in the near future, and already widens to four lanes immediately south of the land. Roads are generally considered by planners to have some buffering effect. On the other hand, abutting the land the defendant wishes to protect, and also across Crooks Road from the land, is a portion of the same parcel the defendant wishes to protect, which defendant has just rezoned for office use.
We are not impressed by defendant’s suggestion that it is acceptable to rezone for office use the land directly abutting the parcel it wishes to protect, while at the same time maintaining that its interest in protecting that land justifies single-family zoning of a parcel across a major, heavily traveled road. See Alderton, supra.
While the R-1B classification does little to further any legitimate governmental interest, the intrusion on plaintiff’s rights is significant. By virtue of its size, shape, and location, the land is not well suited to single-family use. A single-family subdivision plat of the land would create an extremely unwieldy layout and would require departure from several important planning principles.
For example, defendant’s subdivision control ordinance provides that cul-de-sacs should not exceed 500 feet in length. There are strong planning and, policy reasons for this limitation, which is similar to limitations imposed by other municipalities. Without obtaining a waiver of this limitation, a subdivision on the land would be undevelopable. Moreover, the defendant’s transportation engineer testified that single access subdivisions are not in accord with sound planning and are contrary to defendant’s policy. The testimony supports the conclusion that a single-family subdivision plat on the land would violate a number of planning principles.
The record also establishes that even if the land is not totally valueless as zoned, there is a wide disparity between its value as zoned and its value for office use. This disparity is a factor in determining the reasonableness of the ordinance. Reibel, supra.
In Alderton, supra, the Supreme Court rejected the City of Saginaw’s contention that the city’s interest in protecting the area from conditions created by its earlier actions and policies justified the imposition of severe use restrictions on the last undeveloped parcel. Nothing in the instant record persuades us to reach a different conclusion. We hold that the R-1B zoning classification of the land is invalid because it fails reasonably to advance a legitimate governmental interest and significantly infringes on plaintiffs private property rights.
We reverse the judgment below and remand to the trial court for proceedings consistent with Zaagman, Inc, supra, pp 181-183.
W. R. Peterson, J., concurred.
Since the trial, this vacant parcel has been developed with an office building.
"[0]ne who purchases with knowledge of zoning restrictions may nonetheless be heard to challenge the restrictions’ constitutionality. An otherwise unconstitutional ordinance * * * does not lose this character and immunize itself from attack simply by the transfer of property from one owner to another.” Kropf v Sterling Heights, 391 Mich 139, 152; 215 NW2d 179 (1974).
As stated supra, the trial court did not rule on whether or not the land could feasibly be developed for single-family residential use. Since we reverse this case on other grounds, we refrain from an appellate determination of this issue. We note, however, that the cost and revenue estimates of defendant’s witness, Robert Scott, after calculating in financing costs, indicate that the cost of developing the parcel for single-family residences would, at best, "be roughly equivalent to any potential sales returns on the developed property” and, therefore, not reasonably adapted to the single-family home permitted use. Ed Zaagman, Inc v Kentwood, 406 Mich 137, 159; 277 NW2d 475 (1979).
We note that the newly developed office building just to the south of the land on what is called the "Poppleton School site” was formerly the site of a public school. The school building was recently removed and the site sold to developers for office development. This hardly indicates a viable residential hinterland in the northwest quadrant of the Crooks Road-Big Beaver intersection or that the neighborhood has a single-family residential character. | [
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] |
M. J. Kelly, J.
This case is before us once again on remand from the Michigan Supreme Court for reconsideration in light of Johnson v Corbet, 423 Mich 304; 377 NW2d 713 (1985). In Johnson, the Court abandoned a rule announced in Javis v Ypsilanti Bd of Ed, 393 Mich 689, 702-703; 227 NW2d 543 (1975), which provided that an omission or deviation from an applicable and accurate standard jury instruction which was requested at trial is presumed to be prejudicial error. We relied upon this rule to vacate a judgment of no cause of action against the plaintiff in this case due to the trial court’s refusal to grant plaintiff’s request for SJI2d 10.08. Johnson v White, 144 Mich App 458; 376 NW2d 130 (1985), remanded 424 Mich 869 (1986). We must now reconsider the effect of the trial court’s ruling in light of the new standard of review announced in Johnson v Corbet, i. e., that the failure to give a requested instruction constitutes reversible error only when it "amounts to an 'error or defect’ in the trial so that the failure to set aside the verdict would be 'inconsistent with substantial justice.’ ” 423 Mich 326.
The jury instruction refused by the trial court provided as follows:
Because [name of decedent] has died and cannot testify, you must presume that [he/she] was in the exercise of ordinary care for [his/her] safety (and for the safety of others) at and before the time of the occurrence, unless you find the presumption is overcome by the evidence.
In deciding whether the presumption is overcome, you must weigh the presumption with all the evidence. If, after so weighing, you are unable to decide that the presumption has been overcome, then you must find that [name of decedent] was not negligent. [SJI2d 10.08.]
The effect of this presumption is to place upon defendant the burden of showing that the decedent failed to exercise due care. Salvati v Dep’t of State Highways, 92 Mich App 452, 462; 285 NW2d 326 (1979). The trial court may eliminate an instruction on the presumption when direct, positive and credible rebutting evidence is presented. Stockman v Kinney, 29 Mich App 432, 436; 185 NW2d 568 (1971). However, "when circumstantial evidence of doubtful value is the only rebutting evidence offered, the question should be submitted to the jury, and if they decide that the circumstantial evidence should be disregarded, the presumption is still sufficient to establish plaintiffs case as to the exercise of proper care by the deceased.” Stock-man, supra, p 437, quoting Gillett v Michigan United Traction Co, 205 Mich 410, 416; 171 NW 536 (1919). Finally, the mere fact that there is an eyewitness to the accident does not excuse the failure to give the jury instruction. Bolser v Davis, 62 Mich App 731, 735; 233 NW2d 845 (1975).
We think that even under the standard of review announced in Johnson v Corbett, supra, reversible error occurred in this case when the trial court refused to give SJI2d 10.08. The evidence introduced at trial regarding the decedent’s failure to exercise due care was inconclusive and contradictory and thus did not constitute direct, positive or credible rebuttal evidence justifying the trial court’s refusal to give the requested instruction. Because we think the instruction was applicable and that its omission constituted an error or defect affecting the fairness of the trial and verdict, we reaffirm our earlier decision to vacate the judgment and remand for a new trial.
We further address two additional issues which may arise on remand. In our earlier opinion, two members of the panel agreed that the trial court properly admitted testimony of bar owner Francis Beadle to the effect that he was informed by an unidentified eyewitness at the scene of the acci dent that decedent had failed to bring his vehicle to a complete stop before pulling out into the intersection and into the oncoming truck driven by defendant White. The panel concluded that the testimony was admissible under the present sense exception to the hearsay rule. MRE 803(1). On remand, however, a majority of the panel concludes for the reasons stated in my earlier concurring opinion that the testimony of Francis Beadle does not qualify under the present sense exception to the hearsay rule and was thus improperly admitted. 144 Mich App 471. With the exclusion of this very prejudicial hearsay testimony, the evidence introduced at trial is somewhat less conclusive as to the decedent’s exercise of care. On remand, Francis Beadle’s testimony regarding the eyewitness’ statement shall be excluded.
Second, a majority of this panel now also agrees that the opinion testimony of Deputy Schwartz as to decedent’s failure to yield the right-of-way must be excluded at the trial on remand because it is not supported by a sufficient foundation. Other than the unidentified witness’ hearsay observation, there is nothing in the record to support the deputy’s conclusion.
Reversed and remanded for new trial. | [
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Per Curiam.
Defendant pled guilty to one count of receiving and concealing stolen property over the value of $100, MCL 750.535; MSA 28.803, and to a charge of habitual offender, third offense, MCL 769.11; MSA 28.1083. Defendant was sentenced to a three- to five-year term for the principal charge of receiving and concealing stolen property over the value of $100; that sentence was vacated and he was sentenced to a term of four to ten years on the habitual offender, third offense conviction. Defendant appeals as of right. We affirm.
Defendant first contends that he was not properly arraigned or given notice of the habitual offender information. We disagree. Defendant ap parently concedes that the habitual offender information was timely filed on December 21, 1984. Defendant’s claim that he never received notice of the habitual offender charge is not supported by the record.
On March 4, 1985, when the people’s motion to amend the information was argued, defendant’s attorney indicated that his client had "been arraigned on a habitual offender, fourth offense.” Defendant pled guilty on June 4, 1985. He agreed to plead guilty to receiving and concealing and habitual offender, third offense, and the people agreed to dismiss the charge of habitual offender, fourth offense, MCL 769.12; MSA 28.1084. Thus, defendant’s assertion that he did not know about the habitual offender charge until the day he pled guilty is not supported by the record. The Supreme Court has rejected the notion that a defendant who has actual personal notice of the filing of the supplemental information well in advance of pleading guilty can claim error. See People v Terry, 424 Mich 865, 866; 380 NW2d 762 (1985).
Defendant next contends that the trial court committed error by allowing the people to amend the information to charge a crime different from the one upon which defendant was bound over for trial by the examining magistrate. Initially, defendant was charged with receiving and concealing stolen property over the value of $100, MCL 750.535; MSA 28.803. At the conclusion of the preliminary examination, the district judge amended the complaint to charge defendant with unlawfully driving away an automobile, MCL 750.413; MSA 28.645, concluding that the people had not shown that defendant knew that the car was stolen. After the bind-over, the circuit court granted the people’s motion to amend the information to charge defendant with the original offense of receiving and concealing stolen property over $100. The circuit court concluded that the district court had erred, because defendant’s guilty knowledge had been sufficiently established at the preliminary examination.
Amendments to the information are permitted by statute, MCL 767.76; MSA 28.1016. We note that the amendment did not add a new offense, nor did it deprive defendant of a preliminary examination. The amendment reinstated the original charge against defendant that was the subject matter of the preliminary examination. "A defendant is not prejudiced by an amendment to the information to cure a defect in the offense charged where the original information was sufficient to inform the defendant and the court of the nature of the charge.” People v Mahone, 97 Mich App 192, 195; 293 NW2d 618 (1980).
In a prosecution for receiving and concealing stolen property, guilty knowledge is a question for the finder of fact. Knowledge that property is stolen can be shown by direct or circumstantial evidence. See People v Lintz, 203 Mich 683, 686; 169 NW 918 (1918); People v Westerfield, 71 Mich App 618, 621; 248 NW2d 641(1976). In this case, defendant attempted to flee from the police and the automobile had a broken window and smashed steering column. The circuit judge correctly concluded that these facts, which were established during the preliminary examination, demonstrated defendant’s guilty knowledge. The circuit court did not err in granting the people’s motion.
Defendant next contends that the trial court committed error requiring reversal by failing to establish a factual basis for a plea to the habitual offender information. Specifically, he asserts that the court failed to establish that defendant com mitted two prior felonies. The record establishes that this argument is not supported by the facts.
During the plea hearing, the following colloquy took place:
The Court: And also, you’re pleading guilty to the habitual third which would indicate you’re admitting to being convicted or found guilty of at least two other, pled to at least two other felonies.
Is that right?
Mr. Clark: Yes, sir.
The Court: Would you tell me when and where that took place?
Mr. Clark: Receiving and concealing stolen property in 1975; receiving and concealing stolen property in 1983.
The Court: What Court, sir?
Mr. Clark: Recorder’s Court.
The Court: Both of them in Recorder’s?
Mr. Clark: One was Oakland County.
The Court: All right. [Emphasis supplied.]
Defendant’s argument that his plea to habitual offender was not supported by an adequate factual basis is without merit.
Finally, defendant contends that the trial court erred in failing to inform him of his right to a speedy trial prior to accepting his plea of guilty. We disagree. This issue was decided by this Court contrary to defendant’s contention in People v Lee, 67 Mich App 755; 242 NW2d 518 (1976). In Lee, this Court held that the Supreme Court, by case law and by past and present court rules, has explicitly set forth those rights which the court must tell the defendant he is waiving by pleading guilty. "The right to a speedy, public trial is not among them.” 67 Mich App 756.
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Per Curiam.
Pursuant to a plea bargain, defendant pled guilty to a charge brought under the third-offense provisions of the driving under the influence of intoxicating liquor (DUIL) statute, MCL 257.625(3)(b); MSA 9.2325(3)(b), in exchange for the dismissal of two other counts and an habitual offender supplemental information. Defendant was sentenced to five years probation, one year in the Huron County Jail with work release, and ordered to pay a $1,000 fine plus costs and restitution of attorney fees. His driving privileges were suspended for two years. Defendant now appeals as of right.
Defendant’s first claim on appeal is that his guilty plea should be set aside because the trial court misstated the statutorily mandated penalty of MCL 257.625(4); MSA 9.2325(4), thereby violating the information requirement of MCL 257.625(5); MSA 9.2325(5). Section 625(4) states that, upon conviction of the substantive offense, the court shall order the Secretary of State to suspend the defendant’s driver’s license for a pe riod of up to two years. Section 625(5) provides that, before accepting a plea of guilty to this offense, a court "shall advise the accused of the statutory consequences possible as the result of a plea of guilty in respect to suspension of an operator’s or chauffeur’s license”. In the instant case, defendant claims error in the trial court’s failure to inform defendant that suspension was mandatory, telling him instead that, upon acceptance of his plea, the court "can automatically suspend” his driving privilege and, upon certification of his. conviction, his driving privileges "may be suspended by the Secretary of State for a period [of] not more than two years”.
The prosecutor argues that the court’s permissive language of "can” or "may” was equivalent to the mandatory "shall” of the statute. We are constrained to disagree. While defendant’s prior DUIL convictions may have given him some familiarity with the results which would obtain from his conviction, the fact remains that the trial court is required to inform a defendant, before accepting a guilty plea, of the statutory consequences which will result therefrom. This the trial court failed to do. Thus, defendant’s conviction must be reversed and the matter remanded.
Defendant also argues that he should not have been charged as a third offender where he had never been convicted of the second-offense provisions of the DUIL statute, MCL 257.625(3)(a); MSA 9.2325(3)(a). Since this issue may arise again upon remand, we shall dispose of it here.
No Michigan case law deals precisely with this issue. We are of the opinion, however, that defendant was properly charged as a third offender.
MCL 257.625(3)(b); MSA 9.2325(3)(b) increases the offense from a misdemeanor to a felony "[o]n a third or subsequent conviction within a period of 10 years under this section”. Arguably, therefore, the prosecutor could charge a defendant as a third offender following two convictions brought under the general provisions of the DUIL statute or following a conviction brought under the second-offense provisions of the DUIL statute. Given the general prosecutorial discretion allowed in charging defendants where more than one statutory provision may apply (see People v Thomas, 118 Mich App 667; 325 NW2d 536 [1982]), we believe that the Legislature, had it intended to allow third-offender convictions only after second-offender convictions, would have incorporated that limitation in the language used in MCL 257.625(3)(b); MSA 9.2325(3)(b). See also People v Raisanen, 114 Mich App 840; 319 NW2d 693 (1982), and People v Harold Johnson, 96 Mich App 652; 293 NW2d 664 (1980), where previous DUIL convictions were used to support a charge brought under the third-offense provisions of the DUIL statute.
In an analogous situation, the habitual offender act provides that: "A person to be punished under this section * * * need not have been indicted and convicted as a previous offender in order to receive the increased punishment provided in this section”. MCL 769.12(3); MSA 28.1084(3). Although defendant claims that the absence of a similar provision in the DUIL statute evidences a contrary intention on the part of the Legislature in the case of the present offense, we disagree. The lack of a specific limitation on when a defendant may be charged under the third-offense provision of the DUIL statute and the similar purposes behind both enhancement provisions lead us to conclude that treatment different from that allowed in the habitual offender statute is not mandated here.
Although defendant had not been convicted previously under the second-offense provisions of the DUIL statute, we find no violation of defendant’s right to due process in allowing the prosecutor to charge defendant as a third offender where defendant had at least two (in this case three) previous DUIL convictions. See People v Bolton, 112 Mich App 626; 317 NW2d 199 (1981). Defendant is entitled to vacation of his guilty plea, but may be charged upon remand as a third offender.
Reversed and remanded.
Subsection (3)(b) was deleted by 1982 PA 309, § 1, and replaced by MCL 257.625(6); MSA 9.2325(6), containing substantially similar language.
Now MCL 257.625(9); MSA 9.2325(9).
The amended statute, MCL 257.625(6); MSA 9.2325(6) provides:
"A person who violates subsection (1) or (2) * * * within 10 years of two or more prior convictions, as defined in subsection (5), is guilty of a felony. * * *”
"Prior conviction” is defined in subsection (5) as "a conviction under subsection (1) or (2)” or a similar local ordinance or law of another state. Subsections (Í) and (2) do not require prior convictions.
The amendment is academic, however, as it was specifically made prospective only from its effective date of March 30, 1983. 1982 PA 309, § 2. | [
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Per Curiam.
Defendant was convicted of armed robbery, MCL 750.529; MSA 28.797, and first-degree criminal sexual conduct (CSC I), MCL 750.520b; MSA 28.788(2), following a bench trial. The trial court sentenced defendant to two 20- to 40-year concurrent terms of imprisonment. Defendant appeals by leave granted.
Defendant’s only argument in this appeal is that his CSC I conviction must be reversed because the prosecutor violated his right to due process and equal protection of the law by charging him with CSC I rather than third-degree criminal sexual conduct (CSC III), MCL 750.520d; MSA 28.788(4).
Defendant was originally charged with one count of armed robbery and two counts of CSC I. The people pled the CSC charges in the informa tion to be violations of either MCL 750.520b(l), subds (d)(ii) or (e); MSA 28.788(2)(1), subds (d)(ii) or (e). Those provisions state:
"A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:
"(d) The actor is aided or abetted by 1 or more other persons and either of the following circumstances exists: * * *
"(ii) The actor uses force or coercion to accomplish the sexual penetration. Force or coercion includes but is not limited to any of the circumstances listed in subdivision (f)(i) to (v).
"(e) The actor is armed with a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon.”
CSC III also prohibits sexual penetration by use of force or coercion:
"A person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and if any of the following circumstances exists: * * *
"(b) Force or coercion is used to accomplish the sexual penetration. Force or coercion includes but is not limited to any of the circumstances listed in section 520b(l)(f)(i) to (v).” MCL 750.520d(l)(b); MSA 28.788(4)(l)(b).
CSC I is punishable by any term of years with a maximum of life in prison, MCL 750.520b(2); MSA 28.788(2)(2). CSC III is punishable by a prison term of up to 15 years, MCL 750.520d(2); MSA 28.788(4)(2).
Defendant argues that the above provisos prohibit the same offense; that the factual proofs necessary to prove a CSC I are indistinguishable from those necessary to support CSC III where force or coercion are allegedly used. Thus, argues defendant, because the above provisos are identical, the prosecutor is given unbridled discretion as to which of the two crimes will be charged. Defendant argues that this unbridled discretion violates his right to due process and equal protection of the law.
A reading of the above statutory provisions shows that § 520d(l)(b) does include two of the same elements of a § 520b(l)(d)(ii) oífense: (1) penetration and (2) use of force or coercion. However, § 520b(l)(d)(ii) adds another necessary element of proof: that defendant was aided or abetted in the act by one or more persons. See Judge Cynar’s dissent in People v Green, 86 Mich App 142, 153-154; 272 NW2d 216 (1978).
Nevertheless, defendant argues that the additional aiding and abetting element is not dispositive. First, defendant argues that the trial court in this case found defendant guilty because of his direct actions and not because of the actions of another. Although we agree that in its findings of fact the trial court did not state which subsection of § 520b the defendant had violated, the evidence certainly supports a finding that defendant was aided and abetted by another. The complainant testified that before defendant sexually abused her in the rear seat of his car he asked the codefendant and driver of the car to hand him his knife because he was "about to kill that bitch”. The codefendant complied.
Second, defendant argues that since the definition of force for purposes of § 520d(l)(b) is not inclusive, the aid of another, or for that matter the possession of a weapon, § 520b(l)(e), can properly be included as a means of force or coercion within the meaning of § 520d(l)(b).
While arguably the aid of another or possession of a weapon during a sexual abuse could be included as a means of force or coercion under § 520d(l)(b), and defendant could have been charged with CSC III, the prosecutor was not precluded from charging defendant with CSC I. A violation under § 520d(l)(b) occurred regardless of whether the force or coercion occurred by way of an accomplice or by possession of a weapon. However, when the facts of a case indicate that those additional elements are present, the facts will support a conviction of CSC I as well. See People v Ford, 417 Mich 66, 80; 331 NW2d 878 (1982). It is logical to conclude that the Legislature intended CSC I to apply when the perpetrator is aided or abetted by another or possesses a weapon. Those additional elements make the sexual assault more reprehensible, Ford, supra, pp 81, 104. Sexual assault aided by one or more other persons or with the possession of a weapon increases the potential danger to the victim as well as decreases the possibility of escape. We find § 520b(l), subds (d)(ii) or (e), and § 520d(l)(b) of the criminal sexual conduct statute to be distinct statutory crimes, so intended by the Legislature. See Ford, supra, p 94.
We also find that the prosecution did not abuse its discretion by prosecuting defendant as a CSC I offender. Prosecutorial discretion is abused when it is applied arbitrarily or in a discriminatory fashion. Ford, p 84. The facts of this case do not support a finding of such arbitrariness or invidious discrimination. Defendant and his codefendant abducted the complainant while she was a pedestrian and forced her into defendant’s automobile. While she was forced to lie on the floor near the rear seat of the car, defendant took her jewelry from her person and took her money. Defendant proceeded to disrobe the complainant after brandishing a knife and forcefully engaged in sexual intercourse with her. He then invited his codefendant to do the same, and the codefendant accepted and committed a second sexual abuse.
Finally, we find no merit in defendant’s argument that the prosecutor could have charged him with CSC III pursuant to the general aiding and abetting statute, MCL 767.39; MSA 28.979. This argument misconstrues the clear intent of § 520b(l)(d). That provision prohibits criminal sexual conduct while aided and abetted by another.
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Per Curiam.
Plaintiff appeals from a circuit court grant of summary disposition in favor of defendant. We affirm the grant of summary disposition. _
PACTS
On July 3, 1984, plaintiff instituted the present cause of action against defendant seeking $18,721.78 for commissions allegedly due to plaintiff from defendant. The background facts are not in dispute.
Defendant Integrated Metal Technology, Inc., is the successor to Star Industries, Inc. On May 27, 1978, plaintiff entered into a "Manufacturer’s Representative Agreement” with Star. Plaintiff was to be employed under the agreement until May 26, 1984. In December of 1979, plaintiff and Star negotiated a cancellation of the Manufacturer’s Representative Agreement, terminating plaintiff’s employment with Star. A "Termination Agreement” was signed on December 12, 1979. Under the Termination Agreement, Star agreed to pay $2,278 per month to plaintiff for a period of fifty-four consecutive months as fair compensation for the mutually agreed termination of the Manufacturer’s Representative Agreement between plaintiff and Star. Payments were to be made through June of 1984. Plaintiff also agreed not to compete.
Soon after the Termination Agreement was entered into, plaintiff requested that Star pay plaintiff commissions for services he allegedly rendered prior to the December, 1979, termination of the Manufacturer’s Representative Agreement. Star disputed that the commissions were due to plaintiff and asserted its understanding was that plaintiff agreed to give up any claims to the commissions when he entered into the Termination Agreement. Star also asserted that, if such was not plaintiff’s understanding, then their minds did not meet on the subject and they had not really entered into a Termination Agreement.
Star’s attorney mailed a letter to plaintiff on February 22, 1980, indicating Star’s position. In the letter, the attorney attempted to force plaintiff to acknowledge either (1) that the Termination Agreement was valid and that it terminated plaintiff’s right to the commissions or (2) that no agreement was entered into. The attorney asserted that if plaintiff cashed the $2,278 check which he would receive on March 1, 1980, such would indicate that he conceded to defendant’s position that the Termination Agreement disposed of plaintiffs right to the commissions. The attorney asserted that, if plaintiff did not agree, he should not cash the check and that such action would indicate that plaintiff and Star had failed to reach an agreement. The attorney did not acknowledge a third possibility, i.e., that Star and plaintiff had actually not intended for plaintiff’s right to the commissions to be affected by the Termination Agreement. Nevertheless, plaintiff cashed the check when he received it. Plaintiff did not otherwise communicate with Star.
Plaintiff also cashed all of the remaining checks which were sent to him pursuant to the Termination Agreement. The last check was sent to him on June 15, 1984. That check contained the following notation:
This check represents full and final payment of all obligations of Integrated Metal Technology, Inc. to Gordon Fuller, as more fully stated in the accompanying letter dated June 15, 1984.
A letter accompanying this check stated:
Enclosed is our check payable to your order for $2,278. This check represents the final payment due to you under the agreement between the Company and you dated December 12, 1979, which terminated the Manufacturer’s Representative Agreement dated May 27,1978.
This check is tendered to you in full and final payment, settlement and discharge of all obligations owed to you by Integrated Metal Technology, Inc. (formerly Star Industries, Inc.) arising under or in connection with the Termination Agreement or the Manufacturer’s Representative Agreement mentioned above. Your acceptance of this check constitutes your acknowledgment that all such obligations have been fully paid, settled and discharged.
Plaintiff admitted in deposition testimony that he read both of the aforementioned letters and the notation on the check. He also admitted that he understood defendant’s position on the matter. However, he also stated that he did not agree with defendant’s position and that he did not intend at any time to be bound by defendant’s unilateral assertions. He felt that he was entitled to the commissions and did not intend to give up his claim to them.
On March 1, 1985, based on the undisputed facts as set forth in the pleadings, admissions, documents, and plaintiffs deposition, defendant moved for summary disposition pursuant to MCR 2.116(C)(7) on the ground that plaintiffs claim was barred because of release, payment, or an accord and satisfaction. On April 17, 1985, the trial court granted summary disposition in favor of defendant.
ANALYSIS
When a motion is based on MCR 2.116(C)(7), affidavits, depositions, admissions, or other documentary evidence may be submitted by a party to support or oppose grounds asserted in the motion. MCR 2.116(G)(2). The affidavits, together with the pleadings, depositions, admissions and documentary evidence then filed in the action or submitted by the parties must be considered by the court when the motion is based on subrule (C)(7). MCR 2.116(G)(5). If the pleadings show that a party is entitled to judgment as a matter of law, or if the affidavits or other proofs show that there is no genuine issue of material fact, the trial court is to render judgment without delay. MCR 2.116(I)(1).
In this case, the proofs show that there is no genuine issue of material fact regarding defendant’s contention that plaintiffs claim is barred because of an accord and satisfaction.
The doctrine of accord and satisfaction is generally grounded on basic contract principles. An "accord and satisfaction” can be used to discharge a contract. It is sometimes said that an "accord” is an agreement which is substituted for the underlying contract and that a "satisfaction” is the execution or performance of such new agreement.
However, while an accord and satisfaction is generally contractual in nature, the doctrine of accord and satisfaction also carries with it some traditional and well-accepted rules. One particular principle which is peculiar to the law of accord and satisfaction is determinative of the outcome in this case.
That particular principle relates to a situation where one party tenders an item in full satisfaction of a claim and the other party accepts the thing tendered. In such a situation, an accord and satisfaction may arise regardless of the lack of an agreement between the parties. An accord and satisfaction may be effected by payment of less than the amount which is claimed to be due if the payment is tendered by the debtor in full settlement and satisfaction of the claim. In order to effect an accord and satisfaction under such circumstances, the tender must be accompanied by an explicit and clear condition indicating that, if the money is accepted, it is accepted in discharge of the whole claim.
The rules of law in this regard are well-established in Michigan. In Shaw v United Motors Products Co, 239 Mich 194; 214 NW 100 (1927), the plaintiffs therein accepted a check which was accompanied by a letter indicating that the check was tendered in full and final payment of the defendant’s account with the plaintiffs. The plaintiffs thereafter brought suit to recover the balance of their claim. The trial judge rejected defendants’ argument that an accord and satisfaction had been accomplished, noting that there was no evidence that the plaintiff had accepted the sum as a full settlement of the claim. However, on appeal, the Supreme Court stated:
It is evident the circuit judge applied the rule relative to acceptance under an agreement and not an acceptance of a condition. The governing rule in the case at bar is based upon the condition accompanying the tender and consequent acceptance of the condition in retaining the money. This required no previous agreement, but rests upon a dispute as to the amount due. The applicable rule of law is, if the tender is in full satisfaction of an unliquidated claim, the amount of which is in good faith disputed by the debtor, and the creditor is fully informed of the condition accompanying acceptance, an accord and satisfaction is accomplished if the money so tendered is retained; for there can be no severance of the condition from acceptance and it avails the creditor nothing to protest and notify the debtor that the amount tendered is credited on the claim and not accepted in full satisfaction. The case at bar is ruled by Hoey v Ross, 189 Mich 193 [155 NW 375 (1915)].
In 1 C.J. p 561, it is stated:
"Nevertheless it is elementary law that a debtor has a right to attach to a tender such lawful condition as he pleases. And therefore where a sum of money is tendered in satisfaction of the claim, and the tender is accompanied with such acts and declarations as amount to a condition that if the money is accepted it is accepted in satisfaction, and such that the party to whom it is offered is bound to understand therefrom that if he takes it he takes it subject to such condition, an acceptance of the money offered constitutes an accord and satisfaction, in the absence of fraud, imposition, or mistake. And this is so wholly irrespective of the grounds upon which defendant declines to pay, and proposes to deny his liability for, the balance. The acceptance is an assent de facto and the creditor is bound by it. Nor is it necessary that there be express words of assent to the proposition. On the contrary the rule applies with full force and effect, although the creditor protests at the time that the amount paid is not all that is due, or that he does not accept it in full satisfaction of his claim. Where the tender or offer is thus made the party to whom it is made has no alternative but to refuse it or accept it upon such condition. If he accepts it, he accepts the condition also, notwithstanding any protest he may make to the contrary.”
In 1 R. C. L. pp 194, 195, the rule is stated:
"Of course there must be an acceptance by the creditor of the money offered in full discharge of the claim. This acceptance, however, may be implied as well as express. Thus if the debtor tenders the amount he claims to be due, but upon the condition that it be accepted in discharge of the whole demand, and it is accepted, there is an accord and satisfaction on the principle that one accepting a conditional tender assents to the condition. And the fact that the creditor protests against accepting the tender in full payment will not prevent the transaction from constituting a good accord and satisfaction when the debtor still insists that it must be accepted in full payment or not at all.” [239 Mich 195-197.]
Numerous Supreme Court decisions have reiterated these rules of law as set forth in Shaw, supra. See Deuches v Grand Rapids Brass Co, 240 Mich 266; 215 NW 392 (1927), Puffer v State Mutual Rodded Fire Ins Co of Michigan, 259 Mich 698; 244 NW 206 (1932), Durkin v Everhot Heater Co, 266 Mich 508; 254 NW 187 (1934), Lehaney v New York Life Ins Co, 307 Mich 125; 11 NW2d 830 (1943), Puett v Walker, 332 Mich 117; 50 NW2d 740 (1952), and Lafferty v Cole, 339 Mich 223; 63 NW2d 432 (1954). See also Eisenberg v C F Battenfeld Oil Co, 251 Mich 654; 232 NW 386 (1930), Risk v Wells Market Service, Inc, 362 Mich 414; 107 NW2d 776 (1961), and Omscolite Corp v Federal Ins Co, 374 Mich 344; 132 NW2d 154 (1965).
In this case, no material facts are in dispute. Plaintiff contended that defendant owed him both the commissions and the payments under the Termination Agreement. Defendant disputed this claim in good faith, contending that, if plaintiff’s assertions were true, defendant owed plaintiff nothing under the Termination Agreement. Plaintiff thereafter accepted money which was tendered by defendant with an accompanying condition. The condition was clear and unequivocal and indicated that, upon acceptance of the various checks, plaintiff’s claim against defendant would be paid in full. Not only was the condition clearly expressed in a manner in which plaintiff was sure to be able to understand, plaintiff’s deposition testimony indicates that he actually did understand the condition. Plaintiff’s acceptance of the payments under these circumstances constitutes an accord and satisfaction. The grant of summary disposition is therefore affirmed.
Plaintiff argues that there was no accord and satisfaction because he never agreed to give up his claim to the commissions even though he accepted the payments. Plaintiff asserts that a meeting of the minds is necessary for an accord and satisfaction. We do not believe that a meeting of the minds was necessary in this case. While in some circumstances a meeting of the minds may be necessary to establish an accord and satisfaction, as noted previously, in the absence of a prior agreement, an accord and satisfaction may be established by the tender of payments accompanied by a condition and acceptance of such payments.
Plaintiff asserts that his position is supported by Fritz v Marantette, 404 Mich 329; 273 NW2d 425 (1978), and Gitre v Kessler Products Co, Inc, 387 Mich 619; 198 NW2d 405 (1972). We disagree and find those cases to be distinguishable.
In Gitre, supra, the Supreme Court held that an accord and satisfaction did not take place because the defendant therein had merely paid an existing undisputed claim. In Gitre, there was no dispute regarding the plaintiffs underlying claim and defendants merely paid what both sides acknowledged was due. Such payment of an undisputed claim could not work an accord and satisfaction. The present case is much different. In this case, defendant disputed the amount which was due plaintiff.
Nevertheless, the Supreme Court in Gitre went on to state:
As to whether a rubber-stamped endorsement operates as an automatic accord and satisfaction by virtue of restrictive conditions on a check, we note that since an accord is a contract, an essential requisite is a "meeting of the minds.” Obrem ski v Dworzanin, 322 Mich 285 [33 NW2d 796] (1948). Whether these plaintiffs and defendants had a "meeting of the minds” regarding the purported effect of the restrictive endorsement on the reverse side of the checks, we could not say, as a matter of law, that the mere rubber stamp endorsement, without more, constituted a full agreement to accept such restrictive conditions. [387 Mich 624.]
Plaintiff would have us believe that this one paragraph in Gitre was intended by the Supreme Court to overrule years of precedent firmly establishing that an accord and satisfaction can occur when a creditor accepts payment which is subject to a condition regardless of any protest which the creditor may make to the contrary, and regardless of his state of mind, purpose, intention, mental reservations, or belief on his part that his acceptance of the payments will not result in an accord and satisfaction. We do not believe that the Supreme Court would take such a drastic step merely by implication.
In Gitre, the Supreme Court relied on Obremski v Dworzanin, 322 Mich 285; 33 NW2d 796 (1948), for the proposition that a "meeting of the minds” is essential to an accord and satisfaction. A review of Obremski reveals that that case did not involve a tender of payment accompanied by a condition. Rather, the question in that case was whether certain conduct of the parties in accepting a refund of a deposit and surrendering an abstract of title constituted an accord and satisfaction. The Supreme Court held that, under the circumstances of that case, a meeting of the minds was necessary in order to establish an accord and satisfaction. This holding is in accord with the general rule. Two parties may always negotiate a contract calling for substitute performance, i.e. an accord. Such a contract is not formed unless there is a meeting of the minds. If there is such a meeting of the minds, execution of such contract would establish an accord and satisfaction.
However, an accord and satisfaction can also be established by the acceptance of a conditionally tendered payment if there is no prior agreement. We do not believe that the Supreme Court in Gitre intended to change this well-established principle. At most, we believe that the Supreme Court simply meant to indicate that the party asserting an accord and satisfaction must show that the person accepting the payments actually had knowledge or understanding of the condition which accompanied those payments. Under the facts of Gitre, it was not clear that the defendant had knowledge of the restrictive conditions on the check. The defendant therein was a corporation and the check was endorsed by a mere rubber stamp. In the present case, it is an undisputed fact that plaintiff had knowledge and understanding of the restrictive condition accompanying the checks.
We also find Fritz v Marantette, supra, to be distinguishable from the instant case. The plaintiff therein negotiated a conditioned check after striking a part of the restrictive condition and protesting the amount received. The Supreme Court in Marantette simply referred to Gitre as illustrative of the fact that in most cases a jury-submissible question of fact is presented as to whether an accord and satisfaction has occurred. The Supreme Court held that the defendant was not entitled to summary disposition because there was a jury-submissible question of fact as to whether the underlying debt was liquidated or whether it was disputed. The Supreme Court made no suggestion that an accord and satisfaction would not have occurred if the amount was actually disputed.
In the present case, the facts are not in dispute. The parties had an underlying, good-faith disagreement. It is clear that defendant tendered a check with explicit and clear conditions accompanying such tender. It is undisputed that plaintiff understood the meaning of the condition which accompanied the tender. It is also undisputed that plaintiff accepted the payments. Under these conditions, an accord and satisfaction was accomplished. Plaintiff could either accept or reject the tender. Plaintiff’s acceptance of the payments which were accompanied by the condition established an accord and satisfaction.
At the time of the Supreme Court’s decision in Hoey v Ross, 189 Mich 193, 196-197; 155 NW 375 (1915), the principle which sustains the ruling of the trial court and requires affirmance in this case was repeatedly recognized and applied. It has been repeatedly recognized and applied since that time. Because the facts in this regard are undisputed, the trial court’s grant of summary disposition is affirmed.
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Per Curiam.
Plaintiffs filed the present action against the defendant in Wayne Circuit Court under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., alleging that Valerie Eide was sexually harassed during her employment with the defendant. Craig Eide sought damages for loss of consortium resulting from the sexual harassment suffered by his wife. A jury trial was held and a verdict was returned in favor of the plaintiffs, awarding Mrs. Eide $240,000 in compensatory damages and $32,000 in exemplary dam ages. Mr. Eide was awarded $28,000 on his loss of consortium claim. Defendant appeals as of right and plaintiffs have filed a cross-appeal, with both sides raising a total of twelve issues. After reviewing the record, we find that none of the issues require reversal.
i
Valerie Eide began her employment with the defendant in January, 1972, at the age of eighteen, as a line inspector. In 1976, she became a floor inspector and in 1978, a component inspector in department TO-3, a predominantly male department, on the midnight shift. Her husband also worked for the defendant on the midnight shift. After a 1980 strike and layoff, Mrs. Eide was transferred to the afternoon shift. Ten days later, on April 10, 1980, she walked out of the plant never to return. In her complaint, Mrs. Eide sought damages for sexual harassment based on an alleged hostile working environment. Her claim of sexual harassment concerned a period from the spring of 1979 through April 9, 1980. The claim of Mr. Eide was derivative in nature and sought damages for loss of consortium.
Defendant, Kelsey-Hayes Company, located in Milford, is a small plant which, during the 1979-1980 period, employed approximately 170 people. The work force was about fifty percent male and fifty percent female. Mrs. Eide described the environment at the plant as a "zoo.” Testimony revealed a mixture of so-called horseplay and alleged sexual harassment. Mrs. Eide admitted that she participated in some of the horseplay. Concerning events which were of a sexual nature, she testified to the following: a large poster-size picture of a woman that was totally naked with her legs spread apart hung on the assembly line; unwelcome touching and requests by foreman Ralph Ives for sex in the first aid room; degrading comments; and a difference between nicknames given to the men and nicknames given to the women.
In the spring of 1979, Mrs. Eide was given the nickname "Fluffy LeBush” by foreman Lynn Sonnenberg. The nickname was based on an ad for a pornographic movie featuring an actress of the same name. From that time on, Mrs. Eide testified, she was referred to as "Fluffy” or "Fluffy LeBush” by her male co-workers and supervisors. On her last day at work, union representative Lloyd Peltier, without Mrs. Eide’s knowledge, double-taped an obscene drawing to her back. The drawing was of a nude woman from the waist down with her pubic hair colored red and the name "Fluffy Le-Bush” underneath. The drawing was allowed to stay on Mrs. Eide’s back long enough to allow everyone on the assembly line to see the drawing. Also, prior to this incident, Tim Rowbotham, a foreman at the plant, attempted to handcuff Mrs. Eide to her work station.
At trial, Mrs. Eide alleged that management had knowledge of the various incidents which occurred through her complaints to the shift superintendent, various foremen, the company counseling service and union representatives. None of Mrs. Eide’s complaints were investigated until after she left her employment with the defendant. Further, after investigating her complaints, the company concluded that no sexual harassment existed. However, several employees were cited for violating the company policy prohibiting horseplay.
ii
Initially, defendant argues that the trial court failed to adequately instruct the jury concerning Mrs. Eide’s claim of sexual harassment. We find no error.
The Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., provides:
Sec. 202. (1) An employer shall not:
(a) Fail or refuse to hire, or recruit, or discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of . . . sex .... [MCL 37.2202; MSA 3.548(202).]
and,
(h) Discrimination because of sex includes sexual harassment which means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature when:
(iii) Such conduct or communication has the purpose or effect of substantially interfering with an individual’s employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public accommodations, public services, educational, or housing environment. [MCL 37.2103(h); MSA 3.548(103)(h).]
Defendant objected to the trial court’s failure to give the following requested instructions:
Voluntary Participation-Effect
If you find Plaintiff, Valerie A. Eide, was involved, appeared to voluntarily participate in, or appeared to consent to conduct similar to that of which she now complains, then all of the claims of both Plaintiffs must fail, and you must return a verdict for Kelsey-Hayes Company.
Constructive Discharge-Maintenance of Distasteful Environment-Employee’s Conduct-Effect
If you find that Plaintiff, Valerie Eide, appeared to welcome or encourage the alleged wrongful conduct by her own conduct or by appearing to voluntarily participate in or consent to conduct of a similar nature, the employer cannot be held to have constructively discharged Plaintiff through maintenance of distasteful working environment, and the claims of both Plaintiffs must fail, and you must return a verdict for Kelsey-Hayes Company.
Unwelcome Conduct-Deñned
Unwelcome conduct is conduct which the employee did not appear to solicit, incite, voluntarily participate in, or consent to.
The defendant’s proposed instructions closely paralleled the defendant’s theory of the case. Defendant asserts that the instructions were necessary because of the substantial testimony concerning Mrs. Eide’s participation in horseplay at the plant, which made it appear that she may have voluntarily participated in the complained-of acts.
Instructions of the trial court must be reviewed as a whole and not in selected excerpts to determine if error has occurred. See Froling v Bischoff, 73 Mich App 496, 503; 252 NW2d 832 (1977). New standard civil jury instructions exist in the area of employment discrimination. When the standard jury instructions do 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. Cornforth v Borman’s, Inc, 148 Mich App 469, 475; 385 NW2d 645 (1986). It is within the trial court’s discretion whether a proposed instruction is applicable and accurately states the law. Cox v LaLonde, 101 Mich App 342; 300 NW2d 564 (1980), lv den 412 Mich 875 (1981). Further, the refusal to give even an applicable standard jury instruction will not result in error requiring reversal unless the failure to give the requested instruction so unfairly prejudiced one of the parties that the failure to vacate the jury’s verdict would be inconsistent with substantial justice. Johnson v Corbet, 423 Mich 304, 327; 377 NW2d 713 (1985).
In this case, we find that defendant’s proposed instruction did not properly state the applicable law and therefore was properly denied. The Civil Rights Act states that the complained-of conduct or communication must be unwelcome. The term unwelcome is not further defined in the act. The trial court in this case instructed the jury that, pursuant to the act, sexual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature. Further definition was not required. Defendant’s instructions would equate the term unwelcome with not appearing to consent and not appearing to participate in. We do not believe that that was what the Legislature intended by use of the term unwelcome. One can appear to consent while still finding the conduct or communication unwelcome. Bundy v Jackson, 205 US App DC 444; 641 F2d 934 (1981).
Also, in our opinion, the defendant’s instructions were prejudicial because they would have materially increased the burden of proof the plaintiffs were required to sustain. Moreover, the trial court did instruct the jury on the defendant’s theory of the case, which included its argument that Mrs. Eide had consented and voluntarily participated in the complained-of or similar conduct and communication. Therefore, we find no error in the court’s refusal to give defendant’s proposed instructions.
Defendant also claims that the trial court committed error requiring reversal in its jury instruc tions by refusing defendant’s request that the jury be instructed that a portion of plaintiffs’ burden of proof was to establish that defendant did not investigate Mrs. Eide’s claims and failed to take remedial action. In Coley v Consolidated Rail Corp, 561 F Supp 645 (ED Mich, 1982), then Federal District Court Judge Patricia Boyle held that plaintiffs in Title vii sexual harassment cases have the burden of establishing: (1) that they belong to a protected group; (2) that they were subjected to unwelcome sexual harassment; (3) that the harassment complained of was based on sex; (4) that the harassment affected a term or condition of employment or created an intimidating, hostile or offensive environment; and (5) respondeat superior. These factors constitute a prima facie case of sexual harassment under Title vn. See, also, Langlois v McDonald’s Restaurants of Michigan, Inc, 149 Mich App 309, 312-313; 385 NW2d 778 (1986).
• Concerning sexual harassment based , on a hostile work environment, Judge Boyle held that a plaintiff must demonstrate that the employer had actual or constructive notice of the offensive environment. Once notice is shown, the employer has a duty to investigate promptly and take remedial action as of when it first received knowledge or should have received knowledge of the alleged hostile work environment.
In the present case, when instructing on constructive discharge, the judge instructed the jury that defendant could avoid liability if it adequately investigated and took prompt and appropriate remedial action upon notice of the sexual conduct and communication in the workplace. However, on appeal, the parties dispute whether the duty to take remedial action is an affirmative defense, as alleged by the plaintiffs based on Coley, or whether the failure to take remedial action is part of plaintiffs’ prima facie case, as asserted by the defendant based on Henson v City of Dundee, 682 F2d 897 (CA 11, 1982). After reviewing the record, we find it unnecessary to resolve this burden of proof issue.
Defendant states that it did take prompt remedial measures and conducted a full investigation and warned its supervisors that future horseplay would not be tolerated. However, defendant admits that it took this action only after the incidents of April 9, 1984, which caused Mrs. Eide to walk out of the plant. Thus, no investigation or remedial measures were taken until after the time when the jury found Mrs. Eide had been constructively discharged. Further, most of the incidents complained of by Mrs. Eide were perpetrated upon her by her supervisors. She testified that when she initially complained, no action was taken. Since her supervisors were involved, as opposed to co-employees, notice to the employer is presumed. Vinson v Taylor, 243 US App DC 323; 753 F2d 141 (1985); Miller v Bank of America, 600 F2d 211 (CA 9, 1979).
Therefore, even if plaintiffs were required to demonstrate as part of their burden of proof that defendant did not take prompt remedial measures, the evidence supports the conclusion that it did not. Thus, we conclude that the failure to give the requested instruction, even if error, must be considered harmless because the failure to vacate the jury’s verdict would not be inconsistent with substantial justice under the facts of this case. Johnson, supra.
Next, defendant claims that the trial court erred in admitting the testimony of a sociologist as an expert witness. Defendant asserts that the testimony of plaintiffs’ expert, Dr. James Gruber, was inappropriate, without foundation, and highly prej udicial because his testimony invaded the province of the judge and jury by going to the ultimate factual and legal conclusions.
An expert is considered any person which the trial court determines has recognized scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issue. MRE 702; Strzelecki v Blaser’s Lakeside Industries of Rice Lake, Inc, 133 Mich App 191, 198; 348 NW2d 311 (1984). The determination of whether a proposed expert witness is properly qualified is left to the sound discretion of the trial court, the decision of which will not be reversed absent an abuse of discretion. Dybata v Kistler, 140 Mich App 65, 68-69; 362 NW2d 891 (1985).
Here, the trial court determined that plaintiffs’ expert witness was qualified as an expert witness in the area of sexual harassment. Dr. Gruber had been teaching in the area relating to the subject for a number of years and had published books and articles on the subject. He also testified that he was familiar with the extensive body of research and literature regarding sexual harassment. We do not believe that the trial court abused its discretion in deciding that Dr. Gruber was qualified as an expert.
After reviewing the record we also conclude that the evidence was sufficiently complex so that an expert would be helpful to the jury’s understanding of the evidence. Little case law exists in the area of sexual harassment based on the creation of an offensive, hostile and intimidating environment which allows the sexual conduct to exist. Further, sexual harassment can take many forms and is often very subtle. Here, Dr. Gruber illuminated for the jury the type of environment that existed in the defendant’s plant and testified to the sexual connotations of several of the acts of which plaintiff complained. To the extent that the defendant disagreed with Dr. Gruber’s testimony, it was free to, and did, question him on cross-examination and attempt to undermine his testimony. Defendant’s brief on appeal reveals that it simply does not agree with Dr. Gruber’s interpretation of the facts or his conclusions, which is not the test as to whether his testimony was admissible. Therefore, we hold that Dr. Gruber’s testimony was properly admitted. See O’Dowd v Linehan, 385 Mich 491, 509-510; 189 NW2d 333 (1971); MRE 704. The jury was certainly free to accept or reject his testimony.
As part of its verdict, the jury awarded plaintiff Craig Eide $28,000 for loss of consortium. Mr. Eide’s loss of consortium claim was derivative of Mrs. Eide’s statutory claim of sexual harassment. While it is clear that Michigan law permits a loss of consortium claim in a negligence action, Oldani v Lieberman, 144 Mich App 642, 645; 375 NW2d 778 (1985), defendant argues that such a claim is not cognizable under the Civil Rights Act. We disagree.
In Ledsinger v Burmeister, 114 Mich App 12, 26; 318 NW2d 558 (1982), the Court held that, since the plaintiffs had stated a valid cause of action under the Civil Rights Act, the spouse had a viable derivative cause of action for a loss of consortium claim under the act. The Court based its conclusion under the act on the reasoning that Michigan law clearly recognizes and allows recovery for loss of consortium caused by injuries wrongfully inflicted on that person’s spouse. Id., p 26.
Defendant argues that such a claim is not viable based on Boscaglia v Michigan Bell Telephone Co, 420 Mich 308; 362 NW2d 642 (1984). In Boscaglia, the Court held that the Fair Employment Prac tices Act, which was repealed by passage of the Civil Rights Act, did not provide a derivative cause of action for loss of consortium as a result of an employer’s violation of the fepa. The Court based its conclusion on the absence of a legislative intent to provide such a derivative cause of action. However, the Court in Boscaglia specifically limited its holding to the fepa.
Although not deciding the issue now before the Court, the Boscaglia Court did indicate how it might interpret the language of the Civil Rights Act:
The civil rights act provides that "[a] person alleging a violation of this act may bring a civil action for . . . damages,” with "damages” being defined as "damages for injury or loss caused by each violation of this act . . . .” MCL 37.2801; MSA 3.548(801). See fn 3. This provision may be read as encompassing a derivative action for loss of consortium or injury to the marital relationship. [Boscaglia, supra, p 324, n 23.]
We agree with the decision in Ledsinger and the dicta in Boscaglia that the language of the Civil Rights Act was intended to include a derivative loss of consortium claim among the damages that could be recovered. Therefore, the award of $28,-000 for Craig Eide’s loss of consortium was proper.
Defendant next argues that reversal is required because there is no right to a jury trial under the Civil Rights Act. To the contrary, this Court has recently held that such a right does exist under the act. See Smith v University of Detroit, 145 Mich App 468, 474-477; 378 NW2d 511 (1985); Marsh v Civil Service Dep’t, 142 Mich App 557, 569-570; 370 NW2d 613 (1985). The arguments raised by the defendant in support of its position have been previously rejected by this Court.
Alternatively, defendant also argues that the Civil Rights Act is unconstitutional as a violation of the title-object clause of the Michigan Constitution. Mich Const 1963, art 4, § 24. This argument has also been rejected by this Court. See Seals v Henry Ford Hospital, 123 Mich App 329; 333 NW2d 272 (1983); Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785; 369 NW2d 223 (1985). Defendant has raised no new arguments which would warrant a different conclusion.
Defendant further contends that exemplary damages are not available to a plaintiff who alleges a violation of the Civil Rights Act. According to the defendant, since plaintiffs’ request for compensatory damages permitted a recovery for mental anguish and emotional distress, an instruction on exemplary damages covering essentially the same injuries was redundant and the award based on such instructions allowed for an impermissible double recovery. We disagree.
Concerning plaintiffs’ claim for compensatory damages, the trial court in the present case instructed the jury to consider the following elements of damages: physical pain and suffering, mental anguish, fright, shock, embarrassment, humiliation, or mortification. As to exemplary damages, the jury was instructed that if they found the conduct of the defendant was malicious or in reckless disregard of Mrs. Eide’s rights, they could award exemplary damages. The jury was further informed that such damages represented the amount by which they could increase any award of compensatory damages to Mrs. Eide in accordance with the degree of wantonness or recklessness in the defendant’s behavior.
Defendant relies on Veselenak v Smith, 414 Mich 567; 327 NW2d 261 (1982), in support of its position that recovery of exemplary damages under the Civil Rights Act is impermissible. We find this reliance misplaced. In Veselenak, our Supreme Court clearly limited itself to negligence actions when it held that an award of exemplary damages for injury to feelings is duplicative of an award for ordinary damages for mental distress and anguish. The Court, however, distinguished cases of intentional torts, or other intentional, malicious acts, where it has allowed an award of exemplary damages. Id., pp 574-575.
Moreover, in Peisner v Detroit Free Press Inc, 421 Mich 125; 364 NW2d 600 (1984), the Court held in the libel context that if common-law malice is shown, the incremental injury to feelings attributable to such malice can be compensated by an award of exemplary and punitive damages, increasing the award of actual or compensatory damages. Id., pp 142-143. With regard to Veselenak, the Court stated:
Our holding today does not conflict with our ruling in Veselenak . . . that actual damages and exemplary damages in the medical malpractice context necessarily overlap ....
We avoid that overlap, however, by defining exemplary and punitive damages as compensating only the incremental injury to feelings attributable to defendant’s malice. [Peisner, supra, p 134, n 10, 141. Emphasis in original.]
Thus, it is apparent that, under proper instructions, a jury may award exemplary damages that are not duplicative of actual damages for injury to feelings provided the plaintiff has established bad faith or malice on the part of the defendant. See Will v Dep’t of Civil Service, 145 Mich App 214, 226; 377 NW2d 826 (1985).
In this case, the jury found that defendant’s conduct was malicious and in reckless disregard of Mrs. Eide’s rights. The trial court had instructed the jury that if they found defendant’s conduct was malicious, they could award exemplary damages to compensate Mrs. Eide for the added injury to her feelings as a result of the egregious conduct of the defendant. Thus, we believe that this is exactly the type of situation where exemplary damages are available. The trial court’s instructions on exemplary damages were entirely proper and did not allow for a double recovery because they compensated Mrs. Eide for a separate and distinct type of injury. See Freeman v Kelvinator, Inc, 469 F Supp 999 (ED Mich, 1979).
The remaining issues raised by the defendant, which we find to be without merit, do not require extensive discussion. First, since no record was made of defendant’s attempt to have a special verdict form used, appellate review of this issue is foreclosed. Swartz v Dow Chemical Co, 414 Mich 433, 445-446; 326 NW2d 804 (1982). We also find no abuse of discretion on the part of the trial court in admitting the deposition of a psychiatrist taken in connection with Mrs. Eide’s workers’ compensation claim. See Moody v Pulte Homes, Inc, 423 Mich 150, 161-162; 378 NW2d 319 (1985). Nor did the trial court err by allowing plaintiffs’ counsel to impeach one of defendant’s witnesses with a letter from a co-worker. The letter was properly admitted for impeachment on the issue of prior notice by the plant management of sexual conduct and communication in the plant. Finally, we reject defendant’s contention that it is entitled to a credit against the judgment for sickness benefits and workers’ compensation benefits which it paid to the Mrs. Eide. Claims under the Civil Rights Act are independent of claims under the workers’ compensation act or for company provided benefits. Slayton v Michigan Host, Inc, 144 Mich App 535, 558; 376 NW2d 664 (1985).
Therefore, after reviewing the record and the issues raised by the defendant, we find none that require reversal and, accordingly, we affirm the judgment in favor of the plaintiffs.
hi
On cross-appeal, the plaintiffs raise two issues. First, plaintiffs argue that the trial court erred in denying their request for attorney fees and costs pursuant to the Civil Rights Act. While denying plaintiffs’ request for attorney fees under the act, the trial court did award the plaintiffs $12,500 in attorney fees and $2,090 in costs under the Wayne Circuit Court mediation rule. Plaintiffs assert that they were entitled to attorney fees under the Civil Rights Act as well.
The decision whether to award attorney fees under the Civil Rights Act is discretionary with the trial court. MCL 37.2802; MSA 3.548(802); Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785, 800-801; 369 NW2d 223 (1985); King v General Motors Corp, 136 Mich App 301, 307; 356 NW2d 626 (1984), lv den 422 Mich 871 (1985). Here, the trial court based its decision on whether to grant or deny attorney fees on the following factors:
This Court finds that the factors to be considered when determining whether costs and attorney fees should be awarded under MCL 37.2802 are: whether their action enforced a single violation of private rights under civil rights laws for which the plaintiffs were adequately compensated, the defendant’s conduct occurred in an isolated setting and was not indicative of broad violation of rights generally affecting the public, the plaintiffs’ chance of success was sufficiently high to enable them to attract competent counsel who was undeterred by the prospect of having to look to the plaintiffs for payment of fees, adequate compensation to counsel was provided from the recovery and there was no evidence that the defendant defended suit in bad faith.
In explaining its decision, the trial court adopted the reasoning set forth in Buxton v Patel, 595 F2d 1182, 1185 (CA 9, 1979). The trial court distinguished in its opinion class actions and cases seeking injunctive relief where it would be difficult for the aggrieved party to obtain and compensate competent counsel without some guarantee that they could recover attorney fees and costs if successful. The trial court noted that the present case was different because it involved private plaintiffs seeking damages on their own behalf pursuant to a contingent fee arrangement. Plaintiffs’ counsel stands to receive one-third of the $300,000 jury award and interest plus the attorney fees and costs already awarded under the local mediation rule.
Plaintiffs make numerous policy arguments in support of their position that attorney fees should be awarded. See King, supra, pp 307-308. Plaintiffs also rely on federal cases interpreting the right to attorney fees in a civil rights action brought under 42 USC 1983. See Hensley v Eckerhart, 461 US 424; 103 S Ct 1933; 76 L Ed 2d 40 (1983); Northcross v Bd of Ed of Memphis City Schools, 611 F2d 624 (CA 6, 1979). Plaintiffs reason that, in order to vindicate the legislative purpose of the Civil Rights Act, an awarding of attorney fees is virtually required, with only the proper amount left to the discretion of the trial court based on the factors set forth in Wood v Detroit Automobile Inter-Ins Exchange, 413 Mich 573, 588; 321 NW2d 653 (1982). Although a strong argument is made by plaintiffs’ counsel, we remain unpersuaded.
To determine whether attorney fees should be granted under the Civil Rights Act, two separate inquiries are necessary. First, the trial court must determine whether to award attorney fees to a successful plaintiff. This decision is left to the court’s discretion. Jenkins, supra. Second, if attorney fees are awarded, they must be in a reasonable amount determined by applying the factors in Wood, supra. Plaintiffs would skip the first inquiry entirely, presuming that attorney fees should always be awarded, with only the amount left to the court’s discretion. We disagree. Further, the federal authorities plaintiffs cite in favor of their position are distinguishable because they involve situations where the plaintiff is acting as a private attorney general and seeking primarily injunctive relief. In such a case, attorney fees should normally be awarded because otherwise such discriminatory practices could not be effectively eradicated.
In this case, however, we cannot say that the trial court abused its discretion in denying plaintiffs attorney fees under the Civil Rights Act. The trial court examined a number of factors in reaching its conclusion. While the court noted the presence of a contingent fee agreement, the court did not solely rely on that factor. Among other things, the court noted that this was not a case where injunctive relief was sought and thus was not a case where it might not be possible for the attorney to obtain compensation absent an award of attorney fees. Although we find some merit to the plaintiffs’ argument that attorney fees should ordinarily be awarded in order to fulfill the purpose of the Civil Rights Act, we cannot say that there was an abuse of discretion under the facts of this case.
Plaintiffs’ remaining claim is that the trial court erred in dismissing their claim for intentional infliction of emotional distress. The court dismissed the claim based on the exclusive remedy provision of the Workers’ Disability Compensation Act. Plaintiffs maintain that Mrs. Eide’s claim for intentional infliction of emotional distress falls outside the coverage of the workers’ compensation act because it alleges an intentional tort.
As plaintiff correctly points out, various panels of this Court have held that the exclusive remedy provision of the wdca does not bar recovery in circuit court for an injury arising from an intentional tort. Beauchamp v Dow Chemical Co, 140 Mich App 699, 702-703; 364 NW2d 286 (1984), lv gtd 422 Mich 939 (1985), and cases cited therein. Other panels, however, have declined to recognize a separate exception to the exclusive remedy provision for intentional torts. Genson v Bofors-Lakeway, Inc, 122 Mich App 470, 478; 332 NW2d 507 (1983). Thus, there is some doubt as to whether such an exception does exist. Leonard v All-Pro Equities, 149 Mich App 1, 5; 386 NW2d 159 (1986). Clearly, if there is no intentional tort exception, plaintiffs’ claim in the present case would be barred by the exclusive remedy provision.
However, even in cases where the intentional tort exception has been recognized, it has been required that the tort be a "true” intentional tort. Leonard, supra, p 7. A true intentional tort has been defined as the formation by the employer of a speciñc intention to cause an injury or death, as opposed to mere negligence or even gross negligence. Schutt v Lado, 138 Mich App 433, 437; 360 NW2d 214 (1984). Moreover, to allege a true intentional tort "the plaintiff must allege that the employer intended the injury itself and not merely the activity leading to the injury.” Barnes v Double Seal Glass Co, Inc, 129 Mich App 66, 80-81; 341 NW2d 812 (1983) (T. M. Burns, P.J., concurring).
In this case, we do not believe that plaintiffs’ claim of intentional infliction of emotional distress alleged a true intentional tort. While plaintiffs have alleged that the acts of sexual harassment were intended, they have not alleged that defendant intended Mrs. Eide’s damages and injuries. Consequently, even assuming that an intentional tort exception exists, plaintiffs’ allegation of intentional infliction of emotional distress was properly dismissed. Although the trial court did not base its conclusion on the same reasoning, we find no reason to reverse given our resolution of this issue. Therefore, we are of the opinion that the issues raised by the plaintiffs on cross-appeal are also without merit.
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Shepherd, J.
Petitioner, Nomads, Inc., appeals
as of right from a Michigan Tax Tribunal judgment dismissing petitioner’s 1980 and 1982 lessee-user tax assessment appeals on the ground that it lacked jurisdiction over these assessments, and further dismissing petitioner’s appeal from the 1981 assessment on the ground that petitioner was using the subject property in conjunction with a business conducted for profit within the meaning of MCL 211.181; MSA 7.7(5). We affirm the Tax Tribunal’s ruling that it was without jurisdiction to consider the 1980 tax assessment, but reverse on the substantive issue with respect to the 1981 tax assessment and hold that petitioner was not subject to the lessee-user tax. We further remand the 1982 assessment appeal to the Tax Tribunal for a determination of whether petitioner’s failure to file another protest before the board of review was excused because there were no significant changes in its mode of operation for that year from 1981. If there were none, then the tribunal had jurisdiction and petitioner was not subject to the tax in 1982.
In 1979, petitioner, a travel club organized as a nonprofit corporation under state law and accorded tax-exempt status by the United States Internal Revenue Service, leased approximately 2.5 acres of land owned by the Wayne County Road Commission and located at the Detroit Metropolitan Wayne County Airport in the City of Romulus. On the parcel, petitioner constructed an aircraft hangar, office and maintenance facilities. Pursuant to the lease agreement, ownership of these buildings and facilities vested in the road commission immediately upon completion of construction.
Testimony at trial established that petitioner owns and operates a Boeing 727 aircraft used by club members. Members organize trips to places not serviced by regular commercial flights, or serviced indirectly. There was also testimony that members traveled for reduced or nominal air fare and that the trips provide substantial savings over commercial trips.
On August 18, 1980, petitioner received a tax statement from respondent City of Romulus assessing a tax based upon petitioner’s occupancy of the real estate. When petitioner received a second tax statement in December, 1980, it discussed the two statements with respondent’s deputy city assessor, contending that it was not using the tax-exempt property "in connection with a business conducted for profit” as provided in MCL 211.181; MSA 7.7(5). Petitioner was granted a hearing before the Assessor’s Board of Review on March 11, 1981, but the board’s March 20, 1981, decision denied petitioner any relief. Petitioner then appealed to the Michigan Tax Tribunal. Petitioner has received additional assessments in July, 1981, December, 1981, and July, 1982, all of which were paid, and which it attempted to incorporate in amendments to the original petition before the Michigan Tax Tribunal. The Tax Tribunal ruled, with respect to the 1981 assessment, that petitioner was conducting a business for profit. The tribunal further ruled that it had no jurisdiction over the 1980 and 1982 tax assessments because petitioner had failed to comply with the filing deadlines set forth in MCL 205.735; MSA 7.650(35) and MCL 205.737; MSA 7.650(37).
I. Jurisdiction over 1980 Assessment.
Petitioner first received notice of the 1980 tax assessment on August 18, 1980. Petitioner protested the assessment to the respondent board of review in March, 1981. On March 20, 1981, the board informed petitioner of its decision refusing to change the assessment. On May 11, 1981, petitioner filed its petition for review in the Tax Tribunal.
MCL 205.735; MSA 7.650(35) sets forth the procedural time limitation governing assessment disputes and claims of exemptions. The 1976 version of the statute in effect in 1980 provides in relevant part:
(1) ... In the case of an assessment dispute as to the valuation of the property or where an exemption is claimed, the assessment must be protested before the board of review before the tribunal may acquire jurisdiction of the dispute.
(3) Beginning January 1, 1977, the jurisdiction of the tribunal in an assessment dispute shall be invoked by the filing of a written petition by a party in interest, as petitioner, not later than June 30 of the tax year involved. In all other matters the jurisdiction of the tribunal shall be invoked by the filing of a written petition by a party in interest, as petitioner, within 30 days after the final decision, ruling, determination, or order which the petitioner seeks to review. An appeal of a contested tax bill shall be made within 60 days after mailing by the assessment district treasurer and the appeal shall be limited solely to correcting arithmetic errors or mistakes and shall not be a basis of appeal as to disputes of valuation of the property, its exempt status, or the equalized value resulting from equalization thereof by the county board of commissioners or the state tax commission.
Petitioner argues that it could not be expected to protest the 1980 tax assessment before June 30, 1980, since notice was not received until August 18, 1980. We agree. Compare Durkee Lakes Land Co v Clinton Twp, 112 Mich App 595; 316 NW2d 496 (1982). However, even accepting petitioner’s assertion, it is undisputed that petitioner received notice of the denial of its protest from the board of review on March 20, 1981, and did not file its petition contesting the board’s decision in the Tax Tribunal until May 11, 1981, fifty-two days later. Thus, we find no error in the Tax Tribunal’s ruling that the petition was not timely filed and that the tribunal was without jurisdiction to consider petitioner’s petition for the 1980 tax year. Petitioner’s filing of its petition clearly exceeded the alternative thirty-day period set forth in the statute. See Szymanski v Westland, 420 Mich 301; 362 NW2d 224 (1984).
II. The Lessee-User Tax — 1981 Assessment.
The substantive issue raised by the parties in the present case is whether petitioner is a "business conducted for profit” and thus subject to the lessee-user tax. The lessee-user tax is assessed in lieu of the general ad valorem property tax pursuant to MCL 211.181(1); MSA 7.7(5)(1), where the lessee leases tax-exempt property. MCL 211.181(1) provides:
When any real property which for any reason is exempt from ad valorem property taxation is leased, loaned, or otherwise made available to and used by a private individual, association, or corporation in connection with a business conducted for profit, the lessees or users of this real property shall be subject to taxation in the same amount and to the same extent as though the lessee or user were the owner of this real property.
Although the lessee-user tax is a specific or excise tax on the lessee rather than a general ad valorem property tax on the realty, it is assessed in the same manner as the property tax except that it will not create a lien against the underlying realty. Continental Motors Corp v Muskegon Twp, 376 Mich 170, 178; 135 NW2d 908 (1965), Detroit v Katz, 142 Mich App 737, 740-741; 371 NW2d 860 (1985), Detroit v Nat'l Exposition Co, 142 Mich App 539, 543; 370 NW2d 397 (1985). The lessee-user tax is imposed on certain lessees of property which is exempt from the ad valorem property tax, as is the subject property. It is "intended to ensure that lessees of tax-exempt property will not receive an unfair advantage over lessees of privately owned property.” Detroit v Nat'l Exposition Co, supra, p 546.
The tax is imposed only on those lessees of tax-exempt property used "in connection with a business conducted for profit.” MCL 211.181(1). The meaning of the language "business conducted for profit” within the context of this statute has not been interpreted by the courts and the term is not defined in the statute. The term "profit” however has been interpreted both broadly and narrowly by our courts within the context of other statutes. Compare Bay City v Bd of Tax Administration, 292 Mich 241, 249-250; 290 NW 395 (1940) ("profit may be a benefit or advantage other than money return in excess of cost of operation”), with People v Goulding, 275 Mich 353, 357; 266 NW 378 (1936) ("profits are usually defined as the net gain made from an investment or from the prosecution of some business after payment of expenses incurred”).
In determining that petitioner was a "business conducted for profits,” the Tax Tribunal implicitly applied a broad interpretation of the language. The tribunal reasoned:
Petitioner (the club) does not take a profit, but that is because it is a cooperative operation [sic] whereby the savings inure to the direct benefit of Petitioner’s members. This is, in our opinion, a form of profit which the members individually enjoy by virtue of the operation of this business.
On appeal, respondent urges a broad construction encompassing all direct or indirect, realized or unrealized, gains, savings, benefits, or advantages to petitioner and its members. It argues that the substantial savings petitioner affords its members is a profit to petitioner as well as its members. While we agree with the Tax Tribunal and respondent that even though petitioner is a nonprofit corporation certain benefits unquestionably inured to its members, and that if petitioner owned the property rather than leased it the property would be subject to the general property tax, the question still remains whether, under the lessee-user statute, petitioner is a business conducted for profit. As the parties accurately perceive, the resolution of this question hinges on whether the language is given a broad or narrow reading. In analyzing the issue we are guided by two cardinal rules of statutory construction.
First, when a provision imposing a tax is susceptible to two constructions, the uncertainty is resolved in favor of the taxpayer. Sutherland, Statutory Construction (4th ed), § 66.01. In In re Dodge Brothers, 241 Mich 665, 669; 217 NW 777 (1928), the Supreme Court stated, "The scope of the tax laws may not be extended by implication or forced construction. Such laws may be made plain, and the language thereof, if dubious, is not resolved against the taxpayer.” See also Detroit v Norman Allan & Co, 107 Mich App 186, 191; 309 NW2d 198 (1981) ("[T]ax statutes are strictly construed.”).
Second, tax exemptions are strictly construed against the taxpayer and in favor of the taxing authority. Michigan Baptist Homes & Development Co v Ann Arbor, 396 Mich 660, 670; 242 NW2d 749 (1976). Since taxation is the rule and exemption the exception, the intention to make an exemption must be expressed in clear and unambiguous terms. American Concrete Institute v State Tax Comm, 12 Mich App 595, 607; 163 NW2d 508 (1968). See also Michigan Christian Campus Ministries, Inc v City of Mount Pleasant, 110 Mich App 787, 792; 314 NW2d 482 (1981).
MCL 211.181(1) imposes a tax only on a lessee of tax-exempt property used in connection with a "business conducted for profit.” The qualifying language is not an exemption; rather it defines the taxpayers on whom the lessee-user tax is imposed, i.e., lessees of tax-exempt property used in connection with businesses conducted for profit. Exemptions to the lessee-user tax are set forth in subsection (2) of the statute, which is not applicable to petitioner. Thus while the exemptions set forth in subsection (2) must be strictly construed in favor of the taxing authority, the pertinent language set forth in subsection (1), i.e., "business conducted for profit,” must be strictly construed in favor of the petitioner taxpayer. We conclude that the Tax Tribunal erred in giving the language in question a broad interpretation. We therefore conclude, resolving the uncertainty in the language in favor of petitioner, that petitioner is not subject to the lessee-user tax.
Our opinion on this interpretation is solidified even further when one observes that had the language in question been omitted from MCL 211.181(1), petitioner would have been subject to the lessee-user tax since it would not have been exempt from the general property taxation under MCL 211.7a-211.7z; MSA 7.7(1)-7.7(4w) if it were the owner of the property. To interpret the statute in favor of respondents would be to hold that the statute, as applied to petitioner, means the same thing with or without the words "in connection with a business conducted for profit.” We are not prepared to say that this language is mere surplus-age in view of the rule of construction that ascribes to the Legislature an intent to give meaning to every word in a statute. Michigan Harness Horsemen’s Ass’n v Racing Comm’r, 123 Mich App 388, 391; 333 NW2d 292 (1983).
By using this language, the Legislature must have intended not to tax a class of persons who would normally be subject to the tax if they were the owners but who are not taxed because their activities are not in connection with a business conducted for profit. If this analysis of the use of the language creates further confusion or ambiguity, we are again faced with the fact that the offending section of the statute is one imposing a tax rather than one creating an exemption and must be interpreted in favor of the taxpayer.
III. Jurisdiction over 1982 Assessment.
Petitioner attempted to amend its petition before the Tax Tribunal to include its 1982 tax assessment. Although petitioner contends that it included the 1982 assessment in its Second Amendment filed on February 23, 1982, our review of the record reveals that petitioner did not seek to add the 1982 assessment until its Third Amendment filed October 1, 1982.
The statutory provision applicable to petitioner’s attempted amendment to its petition before the Tax Tribunal at the time the amendment was filed provided in pertinent part:
(4) If subsequent to the filing of the petition the taxpayer paid additional taxes as a result of the unlawful assessments on the same property, or if in subsequent years unlawful assessments were made against the same property, the taxpayer after protest before the board of review, may amend his petition prior to the time of trial to join all of his claims for lawful assessment determination and for refund by reason of payments based on the unlawful assessments. [MCL 205.737(4); MSA 7.650(37X4).]
The Tax Tribunal held that it lacked jurisdiction over the 1982 tax year because petitioner failed to meet the filing deadline of June 30 set forth in the amended version of the statute which was not in effect at the time petitioner sought to amend its petition. We disagree with the Tax Tribunal’s reasoning since it relied on statutory language that was not in effect at the time. The applicable provision set forth above provided only that the petitioner’s amendment be made "prior to the time of trial” and "after protest before the board of review.” Petitioner did amend its petition prior to trial but admittedly had not filed another protest with the board of review to contest the 1982 assessment.
Petitioner argues, relying on Ass’n of Little Friends, Inc v Escanaba, 138 Mich App 302, 310-311; 360 NW2d 602 (1984), that its failure to protest the 1982 assessment before the board of review is excused because its appearance there would have been futile. In Ass’n of Little Friends, we held, based on similar facts, that the petitioner’s failure to exhaust its administrative remedy of protest before the board of review was excused since it was "reasonable to assume that the board’s finding that petitioner was not entitled to tax-exempt status in one year would not be reversed in a subsequent year” and the taxing authority "would not be prejudiced by allowance of the association's 1982 claim since the evidence pertained to that year as well.” 138 Mich App 311. See also Turner v Lansing Twp, 108 Mich App 103, 108-109; 310 NW2d 287 (1981). We agree with the conclusion reached in Ass’n of Little Friends that the failure to protest before the board is excused, assuming there were no significant changes in Nomads’ mode of operation between the 1981 and 1982 tax years which would cause it to become subject to the tax. Accordingly, we remand for a hearing to determine whether the facts concerning petitioner’s operation were substantially the same in 1982 as in 1981. If they were, then petitioner’s failure to file another protest is excused, the Tax Tribunal did have jurisdiction over the appeal from the 1982 assessment, and the result should be the same, i.e., that petitioner was not subject to the lessee-user tax.
IV. Summary.
We affirm the Tax Tribunal’s dismissal of the 1980 tax assessment on the ground that the tribunal was without jurisdiction to consider that assessment. We reverse the tribunal’s finding that petitioner was subject to the lessee-user tax in 1981 and we remand the 1982 assessment appeal for a determination of whether there were changes in petitioner’s operation in 1982 which would subject it to the lessee-user tax. If there were no substantial changes from its operation in 1981, then petitioner was excused from protesting the 1982 assessment before the board, the Tax Tribu nal did have jurisdiction over the 1982 assessment and petitioner was not subject to the tax in 1982.
We are aware that there is another case before this Court which concerns the tribunal’s jurisdiction over petitioner’s 1983 and 1984 tax assessments but does not reach the merits of this controversy. Nomads, Inc v Romulus, 149 Mich App 355; 386 NW2d 197 (1986). In that case this Court held that the Tax Tribunal did have jurisdiction over the 1983 and 1984 assessment appeals and remanded the case for consideration of the merits of petitioner’s challenge of the assessments. If there is no significant change of facts for those tax years, as compared to 1981, then the Tax Tribunal in that case on remand should determine that petitioner was not subject to the lessee-user tax in 1983 and 1984.
Affirmed in part and reversed in part. | [
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